Posted by Graeme Maitland — filed in Constitutional Law
Law societies across the country may refuse to accredit law school graduates of Trinity Western University (“TWU”), a private Christian university in British Columbia, according to the Supreme Court of Canada. This is because the University requires all students to sign a community covenant that, among other things, prohibits sexual intimacy outside of heterosexual marriage. Trinity Western has taken the position that denying accreditation was an infringement of their religious freedom, but what exactly does that mean?
Religious freedom is protected by the Canadian Charter of Rights and Freedoms in section 2(a):
“Everyone has the following fundamental freedoms… freedom of conscience and religion”
This protects both the freedom to hold the religious beliefs of one’s choice and the freedom from religious coercion. It is both a positive and a negative right in this respect. The government cannot infringe on your beliefs (freedom of religion) nor can it make you believe or participate in a religious practice (freedom from religion).
Remember, the Charter protects Canadians from actions of the government, not actions of other persons.
The two part test for proving an infringement of section 2(a) is:
Freedom of religion applies to everyone, both individual citizens and corporations like TWU. The government includes regulatory bodies created under statute, like the law societies.
The TWU case was actually two separate cases against the law societies of Ontario and British Columbia. Both had denied accreditation to graduates of the school, meaning they would not be able to practice in those jurisdictions. TWU took them to court in their respective provinces and got conflicting decisions. The British Columbia Court of Appeal held that the Law Society could not deny accreditation while the Ontario Court of Appeal ruled that they could. The crux of this case revolved around the school’s community covenant and discrimination towards LGBTQ individuals.
The Supreme Court of Canada in both cases ruled that the law societies’ actions did not limit the religious freedom of Trinity Western because it only interfered with a law school governed under the covenant. “This limitation is of minor significance because a mandatory covenant is not absolutely required to study law in a Christian environment in which people follow certain religious rules of conduct, and attending a Christian law school is preferred, not necessary, for prospective TWU law students.”
The Court also noted that TWU refused to change the mandatory nature of the covenant. This means it would be imposing religious beliefs on non-believers.
In the short term, this decision means that TWU is unlikely to continue with its plan for a law school. Long term, this decision will factor into future decisions about the balance between freedom of religion and freedom from religion. Regulatory bodies, like the law societies, have the power to intervene to protect one group’s rights over another. The Court says this is in the public interest.
If you believe that your religious freedom may be being infringed and want legal assistance, contact a lawyer at Aarbo Fuldauer LLP in Calgary.
Address: 3rd Floor, 1131 Kensington Road NW, Calgary, AB, T2N 3P4
Phone: (403) 571-5120