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REGULATION OF PROFESSION - Law societies and governing bodies - Constitutional issues - Canadian Charter of Rights and Freedoms

Friday, June 15, 2018 @ 1:37 PM  


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Appeal by Trinity Western University (TWU) and Volkenant from a judgment of the Ontario Court of Appeal affirming a decision of the Divisional Court that dismissed their application for judicial review of a decision of the Law Society of Upper Canada (LSUC). TWU, an evangelical Christian postsecondary institution, sought to open a law school that required its students and faculty to adhere, through the mandatory Community Covenant Agreement (Covenant), to a religiously based code of conduct prohibiting “sexual intimacy that violates the sacredness of marriage between a man and a woman”. Through a resolution of its Benchers, LSUC denied accreditation to TWU’s proposed law school. TWU and Volkenant, a graduate of TWU’s undergraduate program who would have chosen to attend TWU’s proposed law school, sought judicial review of the LSUC’s decision on the basis that it violated religious rights protected by s. 2(a) of the Canadian Charter of Rights and Freedoms (Charter). They were unsuccessful in their application in the Ontario Divisional Court and in their subsequent appeal to the Court of Appeal for Ontario.

HELD: Appeal dismissed. At issue in this case was the LSUC’s decision not to accredit TWU’s proposed law school as a route of entry to the legal profession in Ontario, a decision falling within the core of its role as the gatekeeper to the profession. The Law Society Act required the LSUC Benchers to consider the overarching objective of protecting the public interest in determining the requirements for admission to the profession, including whether a particular law school should be accredited. The LSUC, as a regulator of the self-governing legal profession, was owed deference in its determination as to how these principles could best be furthered. The LSUC interpreted its duty to uphold and protect the public interest as precluding the approval of TWU’s proposed law school because the mandatory Covenant effectively imposed inequitable barriers on entry to the school. The LSUC was entitled to conclude that equal access to the legal profession, diversity within the bar, and preventing harm to LGBTQ law students were all within the scope of its duty to uphold the public interest in the accreditation context, which necessarily included upholding a positive public perception of the legal profession. As a public actor, the LSUC had an overarching interest in protecting the values of equality and human rights in carrying out its functions. Eliminating inequitable barriers to legal training and the profession also promoted the competence of the bar as a whole. Under the precedent established in Doré and Loyola, if Charter protections were engaged by an administrative decision, the Court had to determine whether, in assessing the impact of the relevant Charter protection and given the nature of the decision and the statutory and factual contexts, the decision reflected a proportionate balancing of the Charter protections at play. Although the decision not to accredit TWU’s proposed law school represented a limitation on the religious freedom of members of the TWU religious community, it reflected a proportionate balancing of the Charter protection with the statutory mandate of the LSUC.  Given the LSUC’s interpretation of the public interest, accrediting TWU’s proposed school would not have advanced the relevant statutory objectives, and therefore was not a reasonable possibility that would give effect to Charter protections more fully in light of the statutory objectives. The LSUC’s decision also reasonably balanced the severity of the Charter interference with the benefits to the statutory objectives. The LSUC’s decision only interfered with TWU’s ability to operate a law school governed by the mandatory Covenant. This limitation was of minor significance because a mandatory covenant was not absolutely required to study law in a Christian environment. The LSUC chose an interpretation of the public interest which mandated access to law schools based on merit and diversity, rather than exclusionary religious practices. The decision of the LSUC not to accredit TWU’s proposed law school was reasonable and therefore upheld.

Trinity Western University v. Law Society of Upper Canada, [2018] S.C.J. No. 33, Supreme Court of Canada, B. McLachlin C.J. and R.S. Abella, M.J. Moldaver, A. Karakatsanis, R. Wagner, C. Gascon, S. Côté, R. Brown and M. Rowe JJ., June 15, 2018. TLD-June11201813SCC