• Jonathan Di Carlo

Canada’s Cultural Divide: Who are the Real Losers in the Supreme Court’s Trinity Western Decision?

Introduction The Supreme Court of Canada’s 2018 dual decision pertaining to the accreditation of Trinity Western University’s (“TWU”) proposed law school had parties divided along politically familiar lines with proponents of freedom of religion on one side and supporters of the LGBTQ community on the other. Once the decision was rendered, the propensity for partisanship due to the nature of the cases led to an intense focus on the consequences for narrowing the scope of freedom of religion and broadening the scope equality rights; yet, while both parties focused on these independent objectives, many did not notice that the court continued to metaphorically hand over their gavel to administrative tribunals—some of whom are politically appointed—a trend that dates back 25 years. While these cases made their way through the provincial court systems of Ontario and British Columbia respectively, the primary issue that the courts were dealing with pertained to the statutory interpretation of the public interest mandate of the provincial law societies as they acted in the capacity of a self-regulating public tribunal for the legal profession. In that process, the lower courts were forced to assess the proportionality of the Charter rights that were at odds with the considerations that encompassed the scope of the public interest as assessed by the respective law societies. By the time that the cases reached the Supreme Court of Canada, they had become relatively famous among the Canadian population and represented a cultural divide between freedom of religion and equality rights for LGTBQ individuals. As a result, the public reaction to the decision focused heavily on the battle between equality rights and freedom of religion, while the issue of deference to administrative tribunals was largely tossed to the side.


Case Background and Jurisprudence While these two cases presented an alleged incident of state interference with religious freedom, measuring the proportionality of competing rights at issue was only one of the two questions of law before the court pertained to Charter rights. The other one—arguably the more important one—addressed the interpretation of the scope of the “public interest” statutory mandate by administrative decision makers.

Statutory Interpretation When the cases reached the Supreme Court of Canada, they presented the Court with two questions of law. The first question pertained to the interpretation of the protection of the public interest mandate designated in B.C.’s Legal Profession Act, S.B.C. 1998, c.9, s. 3(a) and Ontario’s Law Society Act, R.S.O. 1990, c. 8, s. 4.2(3). This question called for the court to determine the scope of the legislatures’ intent for the term “public interest” and if it was limited to or extend beyond the academic curriculum created by a proposed law in order to produce qualified lawyer candidates to the provincial bar. In the Supreme Court’s 2001 decision in TWU v. British Columbia College of Teachers, [2001] 31 SCR 772, the court determined that the public interest mandate of the British Columbia College of Teachers in the Teaching Profession Act, R.S.B.C. 1996, c. 449 permitted it to consider factors outside of academic criteria—in this case, TWU’s alleged discriminatory practices—when assessing whether or not to extend accreditation to a proposed college of teachers. However, the court did also determine that the College of Teachers failed to demonstrate an attempt to balance the competing rights in that case and as a result, TWU received accreditation for their College of Teachers.


Proportionate Balancing of Charter Rights The second question before the court pertained to the Charter rights at play in this case. The decision of both the Ontario and British Columbia law societies to deny accreditation to TWU’s proposed law school presented the court with a possible engagement and infringement of the claimants’ right to freedom of religion. The court first needed to determine if the decision of the Law Societies represented an engagement of the claimants’ right to freedom of religion under s. 2(a) of the Charter. If it did, then the court needed to determine if the decision proportionately balanced the infringement of the Charter right with the law societies’ statutory objective and if the decision was reasonable based on the application of the framework created by the court’s recent judgements in Doré and Loyola. This second question before the court involving the conflict between freedom of religion and diversity is reflective of a current cultural shift in Canadian society. The high court’s decision would arguably have a significant social and political impact throughout Canada. It would either reinforce the need for the protection of minority communities across Canada at risk of being harmed or excluded, thereby narrowing the scope of the protection of freedom of religion or it would reinforce the notion that human rights legislation can accommodate religious freedom by allowing religious institutions to discriminate against minority communities on the basis of strongly held beliefs.

The Narrowing of Religious Freedom in the Expansion of Equality Rights The Supreme Court’s decision significantly altered and limited the scope of the right to freedom of religion in Canada when it is in competition with and disproportionate with other rights, such as equality rights, which are widely regarded by many Canadians. Moreover, the decision also represents a further alienation from the Oakes Test in the assessment of the reasonability of a statute that is violating a Charter right such as freedom of religion.

The Scope of Religious Freedom The court assessed that the very nature of religious freedom is non-coercive; therefore, any acts of discrimination or harm to a minority community through coercivity would not be in the public interest (LSBC v. TWU et al., 2017). The decision falls in contrast with some of the past decisions by the court pertaining to freedom of religion in the context of education, such as the Loyola decision. The decision of the Supreme Court in these TWU cases significantly narrows the scope of freedom of religion in the context of its arguable supremacy over other rights such as equality.

In Fighting over God, Janet Epp Buckingham argues that societal change is leading to a marginalization of the religious community in Canada. She states that the Charter has led to the “privileging of equality claims over protection of fundamental freedoms” (Ginn, 2018). Epp Buckingham makes a case that despite the courts denying the existence of any hierarchy of rights, judicial commentators have tended to interpret decisions by placing equality rights before other rights (Ginn, 2018). While Epp Buckingham may be correct in her assertion that equality rights have been privileged since the inception of the Charter, the question that should be asked is that if Epp Buckingham is correct, whether this is due to the preponderance of discrimination under the guise of religious freedom prior to the enactment of the Charter?

The Supreme Court’s decision in these TWU cases significantly narrows the scope of religious freedom by assessing that the infringement to the claimants right to freedom of religion was of “minor significance” (LSBC v. TWU et al., 2018). In comparison, the Supreme Court has historically acknowledged the severity of state infringement of religious freedoms even when the Court determined that the actions of the state where saved under s. 1 of the Charter. In the Permissible Scope of Legal Limitations on the Freedom of Religion, Côté and Gunn lay out a list of cases whereby a state infringement of freedom of religion was acknowledged by the courts even if the state’s conduct was saved under s. 1 (Côté & Gunn, 2005).

In the TWU Cases, not only did the five-member majority conclude that the infringement of the right to freedom of religion was of minor significance, but Justice Rowe, who authored a concurring opinion argued that freedom of religion “is based on the exercise of free will [...] a personal choice, [it is] defined by the absence of constraint [...] its character is noncoercive, its antithesis is coerced conformity” (LSBC v. TWU et al., 2018). Rowe’s arguments against the pervasiveness of freedom of religion for the purposes of coercion complement the majority’s limitation on the scope of freedom of religion. Taken together, these opinions provided for a significant narrowing of the permissibility of actions shielded by religious freedom.

The Oakes Test Côté and Gunn also address the use of the Oakes Test as a "high standard" for assessing infringement of freedom of religion and the depreciation over the past 25 years. They state that "over time, the Supreme Court has applied different limitation standards to different sections of the Charter and that the ‘high standard’ has been progressively weakened” (Côté & Gunn, 2005).

This concept seems to be true for these two cases involving TWU. Although the case pertained to a proportionality test and not a reasonableness test, the Court did not apply the long- standing Oakes test and subsequent jurisprudence to the assessment of the reasonableness of the infringement of the freedom of religion once it was determined. The divergence from the Oakes Test by the majority in this decision does not go unnoticed; the dissenters argue that in the case of an alleged Charter limitation, “the Government must have the opportunity to argue that such a limit is justified under s. 1 of the Charter” (LSBC v. TWU et al., 2018).

The Empowerment of Administrative Tribunals The court’s decision fits in well with other decisions over the past twenty-five years of the Court’s history that demonstrate the growing permissiveness of overreaching quasi administrative tribunals in the context of administrative law. In his article, The Supreme Court of Canada and Tribunals, David Mullan talks about the deference that has been given to administrative tribunals by the court in the past twenty-five years. Mullan states that “intervention is allowed only where the determination of the tribunal or other administrative authority is patently unreasonable either in law or in fact” (Mulan, 2001). Mulan’s argument, which was written almost twenty years ago, was echoed with the reaction of several legal commentators on the Supreme Court’s decision regarding TWU’s proposed law school. This sentiment was echoed by Howard Anglin, Executive Director of the Canadian Constitution Foundation, who states that the decision is a “victory for the ever-expanding power of the administrative state—the human rights tribunals and licensing commission, and other quasi- judicial bodies [...] the effect of this decision is to water down our charter protections” (Wente, 2018). Anglin was not the only one to subscribe to this belief. Cheryl Milne, Executive Director of the David Asper Center for Constitutional Rights at the University of Toronto, views the Supreme Court as providing a huge amount of deference to the tribunals stating, “[the decision] says [tribunals] are the expert, they get to make th[e] decision in respect of their own jurisdiction [...] so long as [the decision] is reasonable” (Zimonjic, 2018). Gerald D. Chipeur who intervened in the case on behalf of the Seventh-day Adventist Church in Canada also reaches this conclusion on the basis of administrative overreach stating that “the reality is that tribunals, boards, anyone who is making decisions regarding the rights of others [can] actually violate the religious freedoms of Canadians as long as they are within a range of reasonableness” (Zimonjic, 2018). Both of these legal scholars make arguments that are in line with the argument made by the dissenting judges in this case, all of which also echo back to Mullan’s argument, stating that “judicial review and even statutory appeals are occasions for the correction of egregious unlawfulness [...] not for making them conform to the courts’ view of what is appropriate” Mullan goes on to state that “persons must pursue the legislatively designated route and not seek relief by way of judicial review” (Mulan, 2001). The viewpoint that all of these legal scholars share—whether it is with the cumulation of the past twenty-five of jurisprudence in Administrative Law or the TWU decision alone—is that the Supreme Court of Canada has allowed legislatively appointed tribunals to take a large amount of judicial power from the judiciary to the legislature and to receive significant deference with its decisions if even they are wrong and violate Charter rights while allowing the principle of judicial independence to be swallowed up by bureaucracy. During the oral arguments for the recent case of Minister of Citizenship and Immigration v Vavilov, the respondent’s lawyer argued that some tribunals do not operate in a specialized manner and are appointed politically and are thus vulnerable political appointees (CPAC, 2018). Yet, it is deference to these very administrative tribunals that the Supreme Court has inscribed into its jurisprudence, especially since the Dunsmuir v. New Brunswick [2008] SCC 9 decision. In What has Dunsmuir Taught? Woolley and Fluker assess the aftermath of the Dunsmuir decision on the standard of review in administrative law. They find that the standard of review should be determined by two fundamental questions, "who is best positioned to decide, the court or the decision maker?" They also assess that deferential review should be based on “whether the decision can be rationally supported by the governing legislation” (Woolley & Fluker, 2018). In looking at Woolley and Fluker’s question of the body who is best positioned to decide the question, the answer should definitely not be a politically appointed tribunal appointed by the minister or minister’s delegates who are one of the parties in the dispute. In the matter of TWU’s cases, most Canadians would probably argue that the court made the right decision, namely, broadly interpreting the public interest to maintain diversity in and equal access to the legal profession. Thus, handing over more power to administrative decision- makers might seem like a good decision in this context; however, this assumes that the administrative decision makers, especially politically appointed ones, would always make the right decisions in the future. Notwithstanding this aspiration, there are no guarantees that other law societies across Canada will use this Supreme Court decision to do the right thing in the future. The background behind these cases clearly show that the law societies who had the courage to stand up for diversity within the bar fall within a minority of Canadian Law Societies. The rest of the law societies stood on the sidelines deferring to the Federation of Law Societies of Canada and as a result of their inaction have received a reward of increased deference in the interpretation of their statutes. As one commentator put it, “let’s hope that the court’s TWU decision encourages law societies across the country to accept and act on their responsibility to protect and promote diversity within the legal profession (Craig, 2018). Despite this commentator’s view, her optimism is based solely on the hope that barely accountable, politically appointed tribunals will always do what’s right.

Conclusion In conclusion, these two cases that made their way to the Supreme Court regarding TWU’s proposed law school initially represented a fight between freedom of religion and equality rights for LGBTQ individuals. However, given that the private provincial Law Societies in British Columbia and Ontario were acting under a state mandate as an administrative decision maker, their decision brought a matter of administrative law in addition to the Charter infringement before the Supreme Court. The court’s decision significantly limited the scope of freedom of religion in comparison to other decisions made by the court on that right in the past. But both the majority and Justice Rowe speak to the low significance of the infringement of religious freedom when it is being used as a shield for coercive actions that can harm minority communities. The Court also decided on a matter of statutory interpretation pertaining to the interpretation of the public interest mandate of the law societies. This component of the decision will arguably have the greatest impact on Canadians moving forward as the court has slowly been handing over its judicial power in administrative law to tribunals within the legislative branch while setting a very high bar for when intervention by the judiciary is appropriate. Thus, while many people who support diversity and the protection of LGBTQ individuals were happy with this decision, what remains to be seen is how administrative tribunals use their new powers to widely interpret their public interest mandate. While the context of this case may allow for a wide interpretation of the public interest in other instances the decisions made by administrative tribunals may be politically motivated and not as widely accepted by Canadians.


References Côté, P., & Gunn, T. J. (2005). Essays on the permissible scope of legal limitations on the freedom of religion or belief in - Canada. Emory International Law Review, 19(2), 685. CPAC. (2018, December 5). Supreme Court Hearings: Minister of Citizenship and Immigration v. Alexander Vavilov. Retrieved from http://www.cpac.ca/en/programs/supreme-court- hearings/episodes/65911726 Craig, E. (2018, June 18) After the Trinity Western decision, let’s hope all law societies stand up for diversity. The Globe and Mail. Retrieved from https://www.theglobeandmail.com/ Dunsmuir v New Brunswick, 2008 SCC 9. Ginn, D. (2018). The interface between law and religion in Canada. Journal of Canadian Studies, 51(2), 533-546. Law Society of British Columbia v. Trinity Western University, 2018 SCC 32.Mullan, D. (2001). The Supreme Court of Canada and tribunals - deference to the administrativeprocess: a recent phenomenon or a return to basics? The Canadian Bar Review, 80(1), 399. Trinity Western University v. Law Society of Upper Canada, 2018 SCC 33 Wente, M. (2018, June 18). The TWU decision is a blow to diversity. The Globe and Mail. Retrieved from https://www.theglobeandmail.com/ Woolley, A., & Fluker, S. (2010). What has Dunsmuir Taught? Alberta Law Review, 47(4), 1017- 1036. Zimonjic, T. (2018, June 15). 3 legal reactions to the Supreme Court's Trinity Western University decision. CBC News. Retrieved from https://www.cbc.ca/news/