On November 1, 2016, the British Columbia Court of Appeal (BCCA) unanimously held (5-0) that the Law Society of British Columbia’s decision not to approve Trinity Western University’s School of Law was unreasonable. The LSBC refused to accredit the school because of TWU’s admissions requirement that students sign a Community Covenant Agreement (CCA). The CCA expected students to agree to only engage in sexual activity within the marriage relationship of one man and one woman.
This decision is a major win for TWU’s accreditation battle. Two other provincial courts of appeal results were split. In Nova Scotia, the Court of Appeal ruled in favour of TWU, but in Ontario the Court of Appeal ruled in favour of The Law Society of Upper Canada (LSUC). The Ontario Court held that the LSUC only had to consider the religious freedom rights of TWU and that whatever decision it made would be reasonable. The Ontario Court also agreed that the offensive TWU CCA was evidence of that reasonable decision.
However, the BCCA decision rejected the Ontario decision. A decision-maker must not be persuaded on an argument based on feelings. “While there is no doubt that the Covenant’s refusal to accept LGBTQ expressions of sexuality is deeply offensive and hurtful to the LGBTQ community, and we do not in any way wish to minimize that effect,” said the Court, “there is no Charter or other legal right to be free from views that offend and contradict an individual’s strongly held beliefs, absent … ‘hate speech’ … that could incite harm against others.” Further it said, “Disagreement and discomfort with the views of others is unavoidable in a free and democratic society.”
With the BCCA decision 18 judges (6 in BC; 6 in ON; 6 in NS) have heard the TWU case. Twelve have ruled in TWU’s favour. The six that went against TWU were all in Ontario. This is telling. The Ontario Courts have adopted the interpretation of the Charter that was publicised by the law deans in a letter to the Federation of the Law Societies of Canada. Law Dean Bill Flanagan’s letter stated, “Discrimination on the basis of sexual orientation is unlawful in Canada and fundamentally at odds with the core values of all Canadian law schools.” There was no acknowledgement of the necessary religious exemptions of generally applicable law. This has resulted in what William Galston calls “civic totalism.” The law deans were willing to broker no other view of discrimination but their own. Five members of the BC judiciary have rejected that view of constitutional law. That is sobering. Up until now, the deans and their faculty have controlled the narrative on TWU. Not anymore. The BCCA decision can be interpreted to mean that the law deans’ view has been reviewed and found wanting.
The 5-0 holding of BC’s highest court is an articulate and substantive ruling on the reasonableness of protecting religious freedom, while, at the same time, ensuring that sexual equality rights are protected and only minimally impaired. It stands as a game changer in this long TWU saga. The Supreme Court of Canada will now have to decide not only between two distinct treatments of TWU’s right to accreditation, but between two distinct interpretations of constitutional law. Given the intellectual depth and sound reasoning of this decision it will go a long way in TWU’s favour at the country’s highest court.