TWU vs. Law Society of Upper Canada: Day 2 Recap, Part 2
Here is part two of the recap of the second day of the Ontario hearing. Below you'll find a summary of the interveners' arguments as well as replies from both the law society and TWU. Thanks for your patience!
Interveners: Trinity Western University
Seventh-Day Adventist Church
The Charter of Rights and Freedoms celebrates and promotes diversity.
It’s inappropriate for the state to investigate religious beliefs.
TWU is not subject to the Charter; participation in the public square should not change this.
The CBC case, which was also not subject to the Charter (as of 1993), sets a precedent.
Churches have provided “public” services of education and health care for a long time.
The church did not step into the public square; the public square expanded to include the church.
The Charter cannot ebb and flow.
Let’s favour cultural inclusion—diverse as we are, we’re all in the same boat.
The goal of the Charter is not to decide and come down on one side.
In this situation, religious views and equality rights can be fully preserved without limiting other rights.
TWU is not bound by the Charter—even through the back door of the law society.
The law society must refrain from regulating religious expression in the Community Covenant.
Justice Centre for Constitutional Freedoms
The law society is infringing on TWU’s freedom of association.
The law society has not engaged in balancing. It is excluding competent, ethical law graduates simply because of the Covenant, which allows like-minded people to associate with one another.
In saying that they won’t recognize TWU graduates unless TWU abandons the Covenant, the society is seeking to prevent TWU from freely expressing their religious beliefs.
Students will be affected by being excluded from law certification.
Because of the Charter, Canadians enjoy the freedom to do collectively what they can do individually.
The law society is failing to recognize TWU’s rights.
Exchange between a justice and the JCCF lawyer:
o Justice: Can’t the law society devise an appropriate procedure for TWU graduates in the future?
o JCCF: TWU’s association rights are being engaged right now.
o Justice: So the uncertainty about eligibility is an infringement of association rights?
Evangelical Fellowship of Canada and Christian Higher Education Canada
Noted that the Law Society of Upper Canada goes back and forth about whether religious freedom is being engaged.
The lower court found that TWU is a religious community. The Supreme Court of Canada found the same thing in 2001.
TWU’s purpose is to provide Christian post-secondary education. It’s clear about being a Christian university.
Evangelical Christians form a subculture, and TWU is for students who want that. People reach their fullest potential in this community.
It is expected that people in the community will hold each other accountable—people who choose TWU want that. It’s important for members of the community to associate with other people who hold the same standard. They ask for the accountability.
The Charter exists specifically to prevent interference with religious rights.
Exchange between justice and EFC lawyer:
o Justice: The issue is the discriminatory admissions policy.
o EFC: There are private Jewish and Muslim schools. They are exclusive and private. Nevertheless, they are recognized by the province of Ontario. They don’t forfeit their freedom just because they are doing something public.
In Ontario, only designated people can perform marriages. Most people who perform marriages, a public service, are members of the clergy, many of whom do not perform same-sex marriages. Ontario legislation carves out an exception for these members of the clergy so they don’t need to violate their consciences or forfeit their religious freedom when performing a “public” service.
The Charter sets the standard for the LSUC here.
Association for Reformed Political Action
People often have a knee-jerk reaction to the word discrimination without inquiring about what’s actually going on.
When people associate together for a legitimate common cause, others cannot demand equal access.
We must ask, “By what legal standard is TWU being assessed?”
Exchange between a justice and the ARPA lawyer:
o Justice: Isn’t TWU discriminating on the basis of sexual orientation?
o ARPA: The majority may not be inclined to apply, but the record shows that some LGBT students DO attend. The Covenant does not target LGBT people. Atheists and Muslims are also less likely to attend. But none are banned.
o Justice: So it excludes others as well.
o ARPA: Attendance at TWU is voluntary. Some make the free choice to set things aside temporarily while they attend TWU.
In 2001, the Supreme Court of Canada said that the Community Covenant, a voluntary code of conduct based on religious beliefs, is not sufficient to engage section 15 of the Charter.
The Charter must act as a shield for TWU—not a sword for the Law Society of Upper Canada.
The Law Society of Upper Canada admits that TWU grads would be qualified, but they don’t like the covenant, which trumps TWU grads’ qualifications.
The Loyola case demonstrated that religion is an integral part of a person’s identity.
We are all one in Jesus Christ.
Our first identity is in Jesus. We are Christians first, before anything else.
When our association keeps us from being recognized, this is a true violation of the Charter.
Christian Legal Fellowship
The Law Society of Upper Canada infringed on TWU’s freedom of religion.
It was not just an outer-limits infringement, but a substantial infringement.
They needed to engage in balancing. For the infringement to be justified, it must further LSUC objectives.
o Justice: How did it infringe?
o CLF: It interferes with the vitality of the law students’ experience. TWU’s submissions on impact demonstrate this.
Association is a constitutionally protected exercise.
What makes a law student different from an education student? Students should not be punished by the law society for recognizing their freedoms.
Justice Campbell and Chief Justice Hinkson’s decisions echo that TWU’s rights were infringed. Campbell recognized that people can draw spiritual strength from studying in community.
The practice of law can be considered a religious calling—it’s an extension of the call to act justly. For many, TWU will be the best place to prepare for that calling. Refusing entry to a calling, including one that requires a license, is a serious matter.
Accredited religious law schools are not contrary to public interest.
We cannot reasonably conclude that although private interests are protected, TWU grads are unworthy.
Interveners: Law Society of Upper Canada
Out Bay Street and OUTLaw
LGBT rights have evolved—now there is a right to marry and recognition of equality.
Requiring someone not to act in accordance with their identity is cruel.
We need to consider the impact on LGBT students.
o Justice: Why would they apply in the first place?
o OUTLaw: It might be the only place they can get in. And what happens if they’re at law school when they realize they’re gay?
The Community Standards in 2001 are not the same as the Community Covenant now.
There is a history of discrimination and damage within the LGBT community.
Canadian Secular Alliance
The LSUC is not trying to interfere with TWU’ rights,
The test: Has a sincerely held belief been interfered with? What belief or practice is being interfered with?
We say that the LSUC decision does not implicate any of these rights.
The Covenant is mandatory. If it were voluntary we wouldn’t be here.
Shielding people from religious belief is not a sword.
This doesn’t just affect LGBT people, but anyone who can’t sign the covenant.
The Loyola case was different because the infringement was palpable. It was happening at the school.
This case can be compared to several cases in the US.
Saying that the pool of law school seats will be increased for everyone is not a good response to discrimination.
Good intentions are not justification.
Lawyers’ Rights Watch Canada
This case is related to international human rights law, which protects freedom from discrimination and coercion.
The Charter must provide as much protection as international human rights law.
Historic disadvantage of LGBT people must factor into the analysis.
The right to believe or not is absolute. The manifestation of this belief is limited.
Canadian Civil Liberties Association
The Covenant has a discriminatory effect.
There are also privacy implications related to TWU monitoring compliance with the Community Covenant.
Policing of people’s private sex lives is a problem—how will this take place?
Sexual orientation is an identity; religion is an opinion. They are “just beliefs.”
The Law Society of Upper Canada has the power and duty to gather all relevant info before recognizing grads, and they did.
TWU focuses on the manner in which the LSUC arrived at their decision, but it is the decision that is binding.
This isn’t an issue of competence, but of privileging Christian students.
o Justice: What about a law school for Aboriginal students?
o AS: The benchers may be able to take this into account, and it may be appropriate then. But it’s not in this case. The LSUC must remove barriers.
Diversity contributes to better legal education.
The decision lies at the core of the LSUC’s expertise.
Criminal Lawyers’ Association
This isn’t about a decision to prohibit TWU from opening a law school; TWU can still open its law school.
This is different from the 2001 case.
This isn’t about refusing admission to the bar for someone who attended TWU.
It’s premature for us to assess the impact. The LSUC would have to grant reasonable accommodation to the student.
o Justice: What if the LSUC had decided to agree with TWU?
o CLA: That would be different. We’d have to consider then. This decision just creates some uncertainty for students, which isn’t a big problem.
Charter values are also important. They are the same as Charter rights. You just have to ask about rights violations for the sake of a remedy.
Private rights cannot protect TWU in the public square.
Reply: Law Society of Upper Canada
Guy Pratte had 15 minutes to reply to the interveners.
A TWU intervener mentioned churches in the public square, but they don’t apply to the law society.
There is a difference between primary and secondary schools and universities. Primary and secondary schools have nothing to do with access to the law profession.
The Supreme Court of Canada dealt with broad claims of religious freedom, but there are limits.
o Justice: Law school is a worthy ambition. The vitality of the law school is threatened if students can’t get jobs.
o Pratte: The institution does not depend on the LSUC for approval. I’m not saying there is no impact, but we have to calibrate. There is no claim that Christians need help accessing the bar. To say only a few will be affected is an antithesis to equality.
o Justice: Could you have approached this differently by saying 1) Accrediting TWU is reasonable; they’re a perfectly worthy group 2) Not accrediting TWU is also reasonable 3) It’s the LSUC’s decision?
o Pratte: That’s fair. A binary decision doesn’t mean that one is right and the other is wrong. This isn’t a mathematical exercise.
TWU had 15 minutes to present a final reply.
We don’t accept the premise of the LSUC’s decision because it didn’t follow the correct Doré analysis.
Pratte found refuge in the Divisional Court’s decision, but in paragraph 124 it says the benchers’ did engage in proportionate balancing…clearly that was not the case.
We turn to the issue of deference. In paragraph 54, it says the court directed the benchers to not reformulate the tribunal decision.
In rights balancing, there is a correct legal formula, and the benchers didn’t follow it.
Pratte said the LSUC “always applied the equal access principle.” But this isn’t supported in the record.
