A proposed law school at Canadian Trinity Western University's Langley, British Columbia campus has lost its battle for accreditation.
Trinity Western University (TWU) is an evangelical, post-secondary Christian institution. The law societies of British Columbia and Ontario (formerly the Law Society of Upper Canada) refused accreditation to TWU because of the mandatory convenant that all students are required to agree to.
The convenant requires students to sign a strict code of conduct agreement requiring them, amongst other things, to abstain from sex outside of a heterosexual marriage including when they are off campus.
The refusal set off a battle and series of court challenges which lasted several years and which have now had their ending in Canada's Supreme Court.
The fight for approval
TWU applied for approval of its proposed law school in British Columbia and Ontario in 2014. The applications resulted in an at-times fierce debate between members of the legal profession. The British Columbia Law Society voted against TWU's proposal, as did Ontario Law Society's board of directors.
The law societies argued that the covenant discriminates against LGBT people and therefore they would not licence graduates from TWU.
TWU and one of its graduates asked the British Columbia Supreme Court and the Ontario Divisional Court respectively to review the law societies’ decisions, claiming essentially that the decisions violated the right to freedom of religion.
In British Columbia the Supreme Court and Court of Appeal ruled in favour of TWU and held that it had a right to act on its beliefs on the proviso that there was no evidence of harm.
The Divisional Court and the Court of Appeal in Ontario, however, ruled against TWU on the grounds of the discriminatory effect of the covenant on the LGBT community.
TWU appealed the decision.
The Supreme Court decision
On June 15, 2018 in a majority (7-2) decision the Supreme Court of Canada held that the law societies were entitled to refuse accreditation. The requirement to sign the covenant as a condition of admission would impose inequitable barriers on entry to the school, and the profession. The law society was reasonable in its decision to pursue the public interest by; ensuring equal access to the legal profession, supporting diversity within the bar, and preventing harm to the LGBTQ community.
The ‘overarching interest of the Law Society was to protect the values of equality and human rights in carrying out its functions.’
In dissent, justices Côté and Brown JJ argued that the law societies powers should be more limited in relation to the approval of law programs. They asserted that when making an accreditation decision the purpose of the law society is to ensure that the graduate is fit for licensing. Furthermore, that the decision not to accredit TWU was “a profound interference with TWU’s freedom of religion”.