SCC Supports LGBTQ Students In Balancing Religious Freedoms and Statutory Mandates

Co-authored by Joseph Osborne, Summer Law Student

On June 15, 2018, the Supreme Court of Canada released landmark decisions on Canadian limits on institutional religious freedoms. The decisions concerned regulator rejections of a law school which required that students sign a covenant prohibiting any form of sexual activity outside of a marriage between a man and a woman. In Law Society of British Columbia v Trinity Western University[1] and Trinity Western University v Law Society of Upper Canada[2], the Supreme Court found that both the Ontario and British Columbia law societies' (the "Law Societies") decisions not to accredit Trinity Western University's ("TWU") proposed law school proportionately balanced religious freedom and the Law Societies' statutory mandates.

Facts

TWU is a private post-secondary institution that provides education in an evangelical Christian environment. While LGBTQ students are not prohibited from attending TWU, all students are required to sign a covenant that prohibits any form of sexual activity outside of a marriage between a man and a woman. In light of this covenant, the Law Societies voted to deny accreditation to TWU's proposed law school after long deliberations on the basis that they were discriminatory to LGBTQ people.

The Courts Below

On judicial review, Ontario's Divisional Court held that the Law Society of Ontario had properly exercised its statutory mandate to act in the public interest in refusing to grant accreditation to TWU's proposed law school because its mandatory covenant was discriminatory.[3] While the denial of accreditation had violated TWU's section 2(a) religious rights under the Charter of Rights and Freedoms, the court found that the violation was proportionate and reasonably balanced against equality rights and the Law Society of Ontario's public interest mandate. The Ontario Court of Appeal later upheld this decision unanimously.

In contrast, the British Columbia Court of Appeal reversed the Law Society of British Columbia's decision not to approve TWU's proposed law school. The court instead found that the decision's effect on TWU's religious rights was severe compared to the minimal impact on Law Society of British Columbia's statutory public interest objectives.[4]

Leave to appeal to the Supreme Court was given for both cases in light of these contrasting Court of Appeal decisions.

The Decision

The Supreme Court upheld the Law Societies' decisions to deny accreditation to...