British Columbia’s top court has told the BC Law Society that it must accept graduates from a Christian university’s proposed law school.
In its 66-page decision released Nov 1, 2016, and signed by Chief Justice Robert Bauman and four other judges, the BC Court of Appeal ruled that Trinity Western University (TWU) has a right to hold and act on its beliefs absent actual harm.
“To do so is an expression of its right to freedom of religion,” the decision says. “The Law Society's decision not to approve TWU’s faculty of law denies these evangelical Christians the ability to exercise fundamental religious and associative rights which would otherwise be assured to them under s. [section] 2 of the Charter.”
The dispute centres on TWU’s community covenant, which students must sign as a condition for admission. Among other things, the covenant asks students to uphold biblical teachings including no premarital sex and no gay sex. Failure to uphold these commitments, according to a student handbook, could result in disciplinary action including dismissal.
The BC Court of Appeal upheld a 2015 ruling by the BC Supreme Court that found the law society had infringed Trinity Western University’s right to religious freedom when they voted to not approve the proposed school of law.
In April 2014, the directors of the BC Law Society — called benchers — voted to approve the proposed law school. Six months later, however, they went back on their decision following an outcry from their members which, in turn, prompted a binding referendum.
Seventy-four percent of members voted against approval.
The Court of Appeal ruled that the benchers failed to fulfil their functions by reaching their decision through a binding referendum instead of weighing their statutory objectives against Charter values.
“A society that does not admit of and accommodate differences cannot be a free and democratic society — one in which its citizens are free to think, to disagree, to debate and to challenge the accepted view without fear of reprisal,” the decision says.
“This case demonstrates that a well-intentioned majority acting in the name of tolerance and liberalism, can, if unchecked, impose its views on the minority in a manner that is in itself intolerant and illiberal.”
While the court acknowledged that the covenant is “deeply offensive and hurtful to the LGBTQ community,” it noted that the charter does not protect people from offensive and contradictory views outside of hate speech that could incite harm against others.
“Disagreement and discomfort with the views of others is unavoidable in a free and democratic society,” reads the decision. “Indeed, it was evident in the case before us that the language of ‘offense and hurt’ is not helpful in balancing competing rights.”
“The beliefs expressed by some Benchers and members of the Law Society that the evangelical Christian community’s view of marriage is ‘abhorrent’, ‘archaic’ and ‘hypocritical’ would no doubt be deeply offensive and hurtful to members of that community.”
TWU spokesperson Amy Robertson says that the decision is a victory for all Canadians.
“It’s a very good day at Trinity Western with this decision which affirms our fundamental identity as Canadians,” she tells Daily Xtra. “In this country, we have the freedom to believe in God or not. In Canada we have the freedom to follow our conscience.
If the BC Law Society decides to appeal, the case would move to the Supreme Court of Canada.
“The BC Court of Appeal decision in the Trinity Western University law school matter released today adds another dimension to an already complex issue,” the society said in an email statement. “The Law Society will be reviewing the decision and considering next steps.”
Lawyer barbara findlay says the latest decision minimizes discrimination faced by gay and lesbian people, and allows people to use religion to justify homophobia.
“The court recognizes that gay and lesbian people are potentially discriminated against by the covenant that Trinity Western has, but they say, first of all, there is no evidence of a particular gay or lesbian student who has been discriminated against,” she says. “Which is kind of ironic because what gay or lesbian students is going to announce their sexual orientation upon signing up at Trinity Western?”
The proposed law school has received accreditation in Alberta, Saskatchewan, Manitoba, New Brunswick and Prince Edward Island. The Law Society of Newfoundland and Labrador has yet to make a decision. The law societies in Ontario and Nova Scotia, however, both rejected TWU’s application.
In June 2016, the Ontario Court of Appeal decided in favour of the Law Society of Upper Canada. TWU is challenging that decision in the Supreme Court of Canada.
In July 2016, Nova Scotia's Court of Appeal overturned the decision and the law society chose not to appeal.