Some More Thoughts on the TWU Litigation

I have been following, via Trinity Western University School of Law’s invaluable Twitter feed, proceedings at the Nova Scotia Court of Appeal: I posted on the first-instance decision here. The questions from the bench on Day One did not augur particularly well for the Nova Scotia Barristers’ Society, but the judges have also probed the weaker areas of TWU’s case. Based on the Twitter feed, the judges are very much on top of the issues, including some of the difficult administrative law problems that this litigation throws up (see also here and here).

These problems aside, I continue to think the case is a relatively straightforward one, though all sides are likely to be upset with what I am about to write. There are intelligent arguments on both sides of the TWU debate (here and here), but it seems to me that the competing interests are relatively weak, on both sides.

Consider first the law societies that have refused to accredit TWU, citing its discriminatory community covenant. But the covenant is discriminatory only in an indirect way. Students must pledge not to have sex outside of marriage; and marriage is defined as the union of a man and a woman. When these two things are taken together, homosexuals are discriminated against because they cannot, in good conscience, have sex even though they are married; they are not being treated equally. Nonetheless, this is a long way from, say, Bill Whatcott’s homophobic flyers. What has happened here is that society has caught up with, and sped ahead of, TWU’s community covenant, which reflects religious ideas that have been around for thousands of years. And let us not preen too readily from our 21st-century perch: 40 years ago, maybe even 20 years ago, few would have thought TWU’s community covenant out of place.

Moreover, the law societies’ interest in the discriminatory covenant is at one remove. Their refusal to accredit TWU’s law school is essentially symbolic, designed to send a message to the people in the provinces they regulate. They are not stopping TWU from opening its law school. They are not even stopping TWU law graduates from practicing in other provinces: future TWU graduates could apply individually to become members of a bar. Rather, the law societies are refusing to accredit TWU because they want to send a message of inclusiveness to the people in their province as a symbol of goodwill towards minority communities. A laudable goal (and one that I think is within their public interest mandates) but mainly a symbolic one (though I do not doubt that collective action in favour of LGBT equality is, all things considered, more likely than not to reduce harm to members of the LGBT community).

Consider now TWU. No doubt there is some infringement of religion in refusing to accredit a religious school because of a religious commitment it asks its students to make. But the law societies are not barring the door to TWU’s law school. As explained in the previous paragraph, they are not even barring the door to graduates of TWU who wish to become lawyers. Students can go to TWU and learn about the law from a Christian perspective: they can express themselves freely, associate with co-religionists and, eventually, become members of the bar elsewhere in Canada. Their important Charter rights are affected only incidentally by the law societies’ refusal to accredit TWU as an institution. And religious students remain free to study at other schools — there is no evidence of systemic discrimination against Christians in Canadian law schools.

Neither side seems, from my perspective, to pack a knock-out punch in this debate. And it is quite clear from Doré and Loyola that all the law societies have to do is to strike a reasonable balance between the competing interests. It is true that Loyola says that reasonableness commands proportionality where a Charter right is implicated, but here rights are implicated on both sides: any infringement of freedom of religion is designed to accommodate equality rights. In such a situation, administrative law doctrine teaches that reviewing courts should be reluctant to re-weigh the factors considered by the front-line decision-maker. Furthermore, even if one thinks about the litigation in proportionality terms, surely refusing to accredit the institution but permitting graduates to apply for individualized assessments is just the sort of narrowly tailored approach that a proportionality test should accommodate, especially if courts are required to be be deferential to front-line decision-makers.

Lastly, a warning about some red herrings in this litigation. Yes, the Charter does not apply to TWU, because it is a private institution. But the Charter certainly applies to the law societies that have to decide whether to accredit TWU (and, in any event, whether the formal s. 32 analysis is still required in the world of Doré and Loyola is an open question). Equally, TWU’s exemption from British Columbia’s discrimination laws does not apply elsewhere in Canada; the law societies are not bound in any way by BC’s decision to exempt some institutions from the scope of its laws, because once the activity in question crosses provincial lines, BC’s exemption does not follow it. As for the 2001 Supreme Court of Canada decision about TWU’s teachers, I have already suggested that it is of little utility, because the standard of review analysis has changed, the equality interests are stronger (in 2001, gay marriage was not yet the law of the land) and the other provinces do not have equivalent exemptions. These are important changes or differences.

On balance, I think I would have voted to accredit TWU. But if I were a judge applying honestly the principles of administrative law, I would not overturn the law societies’ attempts to balance religion and equality in this particular context.

All of the court documents relating to the Nova Scotia litigation can be accessed here: kudos to the NSBS for making them available.

This content has been updated on April 8, 2016 at 09:57.