The Federation of Law Societies of Canada (FLSC) released its report on Trinity Western University’s (TWU) proposed law school program in December 2013. The FLSC gave TWU’s law school preliminary approval despite serious concerns expressed by different sectors of the legal profession, including the Council of Canadian Law Deans, that the school’s Community Covenant Agreement, which requires TWU students and staff to agree not to engage in same‑sex sexual intimacy, discriminates against LGBTQ students.

FLSC’s approval has, unsurprisingly, led to strong and divergent opinions on the appropriate balancing of rights.  

Law societies in Ontario, British Columbia and Nova Scotia are now actively debating whether they will accredit TWU’s law school and permit its graduates to practice law in those provinces.

Carsten Jensen, President of the Law Society of Alberta, released a statement expressing concern over the law school’s preliminary approval, but stated that the Law Society of Alberta has delegated authority for approving such programs to FLSC. Mr. Jenson encouraged law societies across the country to co‑operate in amending the law school approval criteria used by FLSC.

The law itself does not provide much assistance in reconciling the competing human rights engaged in this dispute. It weighs these rights in a silo, without regard to the wider public policy concerns about validating this type of discrimination, resulting in a hierarchy, not a balancing, of rights.

Background on Trinity Western University

TWU is a privately funded institution which markets itself as a Christian university for liberal arts, sciences and professional studies.  

This is not the first time TWU’s educational programs have been the subject of controversy. In 2001, TWU and the British Columbia College of Teachers (BCCT) took their dispute over BCCT’s refusal to approve TWU’s teacher training program to the Supreme Court of Canada (SCC). BCCT’s refusal was based on the fact that TWU required its students and staff to agree that they would not engage in “sexual sins,” including homosexual behaviour.

A majority of the SCC found that BCCT’s refusal to approve the teacher education program unreasonable. According to the majority of the SCC, BCCT did not properly consider the competing human rights involved when it assessed TWU’s restrictions on student behaviour. BCCT failed to consider the right to freedom of religion under the Charter of Rights and Freedoms in making its decision.

The SCC made the following observations about BCCT’s decision:

–  There was no evidence that graduates of TWU’s teaching program would discriminate against LGBTQ individuals when they became teachers.

–  BCCT did not require public universities to screen out applicants who held discriminatory views.

–  TWU fell under the exemption created by section 41 of B.C.’s Human Rights Code (the Code).

The SCC did find that LGBTQ students could sign the Community Covenant Agreement only “at great personal cost,” recognizing that prohibiting same‑sex sexual intimacy meant, de facto, that TWU prohibited LGBTQ students.  

Section 41 of the British Columbia Human Rights Code

Section 41 of the Code exempts charitable, philanthropic, educational, fraternal, religious or social organizations which operate on a not‑for‑profit basis from the Code if their primary purpose is the promotion of the interests and welfare of an identifiable group or class protected under the Code. Organizations that fall within this description will not be found in contravention of the Code merely because they grant a preference to that identifiable group or class.

The word “preference” is important in the context of the Code. In Ontario, for instance, section 18 of its Human Rights Code grants a similar exemption, but states that membership or participation in special interest organization must be restricted to persons who are similarly identified.

The B.C. Court of Appeal (BCCA) considered the application of section 41 of the Code in Vancouver Rape Relief Society v. Nixon. At issue in that case was whether the Vancouver Rape Relief Society (the Society) could exclude Kimberly Nixon from training for peer counseling services because she was born male. The BCCA found that the Society was not required to establish that its primary purpose was to promote the interests of women who have lived their entire lives as females, to benefit from the section 41 exemption. They could exercise an internal preference and still fall under the Code exemption.  

In TWU’s case, it does not restrict applicants to its law program to Christian applicants, however, it does exhibit a preference by requiring students to sign a Community Covenant Agreement, which among other things, asks its students to commit to “embody attitudes and to practice actions indentified in the Bible as virtues, and to avoid those portrayed as destructive.” The broad language of section 41, arguably, permits TWU to fall under the exemption.

Balancing of competing rights

Through their fact‑based approach to competing rights, courts have inadequately addressed the appropriate balancing of these rights.

Critics accrediting TWU’s law program point out that the Community Covenant Agreement creates a de facto quota on spots available to students who do not identify as heterosexual, limiting opportunities for individuals who identify as LGBTQ to attend an accredited law school and become licensed to practice law in Canada.

Freedom of religion is protected under the Charter and law societies must make decisions with Charter rights and values in mind. Preventing TWU students who graduate from a FLSC-approved law program from being licensed would be discriminatory and violate those students’ Charter protected right to freedom of religion. Accrediting the program, however, in effect approves the institution’s conduct in actively excluding individuals based on sexual orientation. 

There is something fundamentally unjust in giving an institution, which actively discriminates against an identifiable group based on a Charter-protected identity, access to a licensing regime that should be open to all individuals, equally.   

TWU should not be prevented from carrying out educational programs in a religious context. But, in view of balancing competing human rights instead of creating a hierarchy, a line should be drawn where those educational programs are designed to provide access to a public licensing process that is bound by the Charter. The BCCT decision did not consider this broader public policy perspective.

Iler Campbell LLP is a law firm serving co-ops, not-for-profits, charities, and socially-minded small business and individuals in Ontario.

Pro Bono provides legal information designed to educate and entertain readers. But legal information is not the same as legal advice — the application of law to an individual’s specific circumstances. While efforts are made to ensure the legal information provided through these columns is useful, we strongly recommend you consult a lawyer for assistance with your particular situation to obtain accurate advice.

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Shelina Ali

Shelina Ali

Shelina Ali is a contributor to rabble’s Pro Bono column. Ali is a lawyer with Iler Campbell LLP where she practices in the areas of corporate law and civil litigation. She assists non-profit...

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Pro Bono

Pro Bono is a monthly column written by lawyers and legal experts at Iler Campbell LLP that explores the murky legal waters activists regularly confront in doing their work.