Thursday, July 21, 2016

Ontario Court of Appeal rules that TWU graduates cannot practice law in Ontario

Trinity Western University (TWU) requires all its students to sign a Community Covenant Agreement, which demands (among other things) that sexual relations be restricted to heterosexual married couples. Violators of the Covenant are subject to academic censure, up to and including expulsion. TWU is planning to open a law school in September 2018.

The Law Society of Upper Canada's reaction to this blatantly discriminatory policy, after consulting with its members, was to deny TWU graduates from practising law in Ontario. Last month, the Ontario Court of Appeal ruled the Law Society of Upper Canada was within its rights to do so.

While I am pleased with the overall decision, some of its reasoning leaves me discomfited.

First, the good.

The Court states unequivocally (P115) “that TWU’s admission policy, viewed in conjunction with the Community Covenant, discriminates against the LGBTQ community on the basis of sexual orientation contrary to s. 15 of the Charter and s. 6 of the HRC.”

Later on, the Court acknowledges again the harm that TWU's Covenant does (P138): “LSUC’s decision not to accredit TWU does not prevent the practice of a religious belief itself; rather it denies a public benefit because of the impact of that religious belief on others – members of the LGBTQ community.”

The Court looks at the procedure LSUC followed in making its decision (P122-128) and finds that it was fair. Therefore, (P132) “There is nothing wrong with a law society, acting within its jurisdiction, scrutinizing the admission process of a law school in deciding whether to accredit the law school. […] LSUC could take account of the fact that all law schools currently accredited by it provide equal access to all applicants in their admissions processes. An accredited TWU would be an exception.” This is the key paragraph in the ruling that is generally applicable.

Here the judge a) implicitly acknowledges the discriminatory nature of the Covenant against homosexuals, and b) states that law societies are within their rights to take that into account when determining whether to accredit a law school. It is this finding (which is essentially repeated in P135) that I hope sways the justices at the inevitable Supreme Court appeal. 

Other aspects of the ruling I found to be troubling.

The Canadian Secular Alliance was an intervener in the case, and submitted a factum in which the key arguments were:
  • The Charter exists to protect people from discrimination. It cannot be used as a justification to discriminate against others.
  • This case isn't about studying law in an evangelical Christian environment. It's about enforcing an openly discriminatory policy that violates the Charter rights of students, and claiming protection for this bigotry under the aegis of religious freedom.
  • Nothing in Christianity (doctrine, theology, tradition) demands studying law in a Christian environment or strictly from a Christian perspective, so Charter religious freedom protections are not applicable.
  • LSUC's decision is not an infringement of religious freedom. No TWU student is forced to alter their beliefs about what constitutes healthy sexuality. No one is being silenced. To claim that the mere presence of a non-celibate homosexual in the same law class as an evangelical Christian is an infringement of their religious practice is unreasonable.

 Regrettably, the Court rejected the first point above and ignored the others.

The Court found that institutions, not just individuals, have Charter rights. Thus the religious rights of TWU (not its students or faculty) must be balanced against potential harms against minority groups. In the words of the Court (P94):
“individuals [...] necessarily require an entity to both establish a community within which members can study law from an evangelical Christian perspective and to set and enforce the religious practices to be followed by the law school community. It is only through TWU that the claim to operate a degree-granting accredited law school from an evangelical Christian perspective can possibly be advanced. In this way, TWU acts as the vehicle through which the religious freedoms of its individual members, including teachers, students, and staff, can be manifested, pursued and achieved.” [emphasis added]
Thus, the Court concludes that TWU’s religious freedom not only exists, but is infringed upon by the LSUC decision (P99). “The question remains, however, whether the LSUC’s decision not to accredit TWU because of the existence of the Covenant would interfere with TWU’s religious freedom in a manner that is more than trivial or insubstantial. I accept that it would.”

The Court also finds, in P101, that an individual’s “right to freedom of religion under s. 2(a) of the Charter” was infringed by LSUC’s decision not to recognize TWU graduates. The judge also mentions “TWU’s religious freedom” in P11 and P114, and implicitly refers to it in others.

In addition to being wrong (in my opinion) in itself, granting religious rights to institutions is a troubling precedent. I am concerned that if this reasoning is upheld by other courts, future Canadian jurisprudence may echo recent American rulings, such as the Hobby Lobby case (certain corporations can restrict the health coverage it provides for its employees if a procedure conflicts with the religious beliefs of its owners). The reasoning can also be used to blur the distinction between institutions and individuals (as the United States has also done, and I worry that Canada may be only a few years behind).

Another concern is that TWU has managed to hoodwink the Court. TWU justifies its existence as an accredited Canadian university based on its openness to all prospective students (subject to the restrictions in the Covenant). But while the Court implicitly recognizes this, it also finds (P91) that “the decision to attend TWU is fundamentally a religious one”. The contradiction between TWU being a proselytizing “community committed to making a positive difference in the world for Christ” that allows one  (P92) “to participate in an education community, consisting largely of like-minded individuals, that embraces values grounded in evangelical Christian beliefs”, and being an open, welcoming culture for all - including atheists and homosexuals, who presumably would have significant issues in such an environment - seems to be lost on the Court.

Ultimately, the Court ruled in favour of the Law Society of Upper Canada for two reasons:
  • LSUC was scrupulously fair in the procedure it followed (P122-128) to determine that it would not recognize TWU law graduates. 
  • LSUC has a statutory mandate to serve the public interest. TWU has the right of freedom of religion under section 2 a) of the Charter. The LSUC decision strikes a reasonable balance between these competing objectives. P143 is the crux of this argument: 
“Taking account of the extent of the impact on TWU’s freedom of religion and the LSUC’s mandate to act in the public interest, the decision to not accredit TWU represents a reasonable balance between TWU’s 2(a) right under the Charter and the LSUC’s statutory objectives. While TWU may find it more difficult to operate its law school absent accreditation by the LSUC, the LSUC’s decision does not prevent it from doing so. Instead, the decision denies a public benefit, which the LSUC has been entrusted with bestowing, based on concerns that are entirely in line with the LSUC’s pursuit of its statutory objectives.”
I expect TWU's appeal will focus on discrediting the logic and conclusion of this paragraph of the decision.

One key pillar of the decision - the specifics of LSUC's procedural fairness - will not be the legal principle under dispute if the Supreme Court of Canada agrees to hear the appeal (as there are pending decisions for similar cases in British Columbia and Nova Scotia). The other fundamental argument - that the decision is a reasonable balance between competing rights - confers upon religious organizations a status roughly equivalent to the rights enjoyed by religious individuals. I strongly support the latter, but am deeply uncomfortable with the former.

Thus, unlike last year's Supreme Court ruling on prayers to open official municipal proceedings, the Ontario Court of Appeal decision is not the clear upholding of secular principles that one might hope for.

3 comments:

  1. cheri@mail.postmanllc.net

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