On TWU, the SCC made the right decision for LGBTQ+ rights

The Supreme Court of Canada’s decision in favour of LGBTQ+ rights in last week’s pair of Trinity Western decisions is welcome news, even if the split reasons are somewhat untidy. In Law Society of British Columbia v Trinity Western University and Trinity Western University v Law Society of Upper Canada the majority found it was reasonable for the two law societies to deny accreditation to TWU’s proposed law school because students there are required to agree to a Community Covenant, which effectively prohibits sexual relationships outside heterosexual marriage.

Here are five takeaways from the rulings (focusing on the BC reasons).

1. Law societies have an essential gatekeeper role in ensuring equitable access to the legal profession

Law schools are “the first point of entry to the legal profession” (see Justice Malcolm Rowe’s concurring reasons). For this reason, law societies can insist on equitable access to law schools as the training ground for the lawyers that they will eventually regulate. This is part of a law society’s statutory mandate to uphold the public interest in the administration of justice.

Though the dissenting opinion (Justices Suzanne Côté and Russell Brown) disagreed that the law society’s mandate included authority over the internal policies of law schools, the majority rightly recognized that legal education and the legal profession should not be siloed. “Eliminating inequitable barriers to legal education, and thereby, to membership in the legal profession, also promotes the competence of the bar and improves the quality of legal services available to the public,” the majority wrote. “The LSBC is not limited to enforcing minimum standards of competence for the individual lawyers it licenses; it is also entitled to consider how to promote the competence of the bar as a whole.”

2. The public interest includes equality and diversity

According to the majority, the LSBC was reasonable to interpret the public interest in a way that promoted equality and diversity in the legal profession:

…A bar that reflects the diversity of the public it serves undeniably promotes the administration of justice and the public’s confidence in the same. A diverse bar is more responsive to the needs of the public it serves. A diverse bar is a more competent bar.

The former Chief Justice, Beverley McLachlin, in her concurring reasons, emphasized that the law society was “refusing to condone discrimination against LGBTQ people, pursuant to the LSBC’s statutory obligation to protect the public interest.”

3. Doré/Loyola lives

TWU confirmed that the Doré/Loyola analysis still applies when a court is asked to review the discretionary decision of an administrative actor in a case where Charter rights are implicated. There have been many calls to jettison this analysis, but the majority re-committed to it.

The Doré/Loyola framework involves a two-step analysis. The first question is whether the administrative decision engages the Charter by limiting its protections (“both rights and values”). If so, does the decision reflect a proportionate balancing “of the Charter protection with the statutory mandate”? If the answer is yes, the decision will be upheld as reasonable.

Chief Justice McLachlin and Justice Rowe both wrote that the contours of the Doré/Loyola analysis could be clearer in some respects (especially on the “undefined” scope of values versus rights). The analysis nevertheless has the merit of flexibility. Its contextual adaptability is valuable in light of the many administrative decisions that may engage Charter rights.

Having a flexible analysis that blends administrative and constitutional law also makes sense because the traditional Oakes analysis does not necessarily fit when the court is “reviewing an individualized decision.”

In any event, as the majority reiterated, the Doré/Loyola analysis is intended to work “‘the same justificatory muscles’ as the Oakes test.”

4. We can still rely on “Charter values” – but should we?

What is the difference between a Charter right and a Charter value? While the majority referred to “fundamental shared values, such as equality,” Justice Rowe and the dissenting justices rightly noted that the concept of Charter values is too amorphous to be principled (many Canadians, including judges, may differ about what values are actually “shared”). The Doré/Loyola analysis should, instead, focus on rights and freedoms as protected in the Charter, and not ill-defined “values” that may or may not correspond to those rights and freedoms.

5. There is a dispute over the boundaries of freedom of religion

The majority accepted that the LSBC’s decision on accreditation engaged the Charter-protected freedom of religion of evangelical TWU students. But, when it came to balancing the belief held by students that their “spiritual development” would be enhanced by studying in a community governed “by particular religious rules of conduct,” the majority found the law society’s decision only minimally interfered with freedom of religion. Belief in the Community Covenant was more of a preference than a mandatory part of evangelical students’ religion. It was therefore reasonable for the law society to decide in favour of “equal access to and diversity in the legal profession.”

Justice Rowe’s analysis on freedom of religion is preferable, however. He would have found there was no section 2(a) protection for evangelical members of the TWU community to insist that others comply with the Community Covenant:

Where the protection of s. 2(a) is sought for a belief or practice that constrains the conduct of nonbelievers — in other words, those who have freely chosen not to believe — the claim falls outside the scope of the freedom. In other words, interference with such a belief or practice is not an infringement of s. 2(a) because the coercion of nonbelievers is not protected by the Charter.

Professor Lorne Sossin tweeted that the TWU decisions “show why Administrative Law is such a compelling, dynamic, elusive, contested, hopeful field of human endeavour – it is where we work out what the public interest means & how public authority ought to be exercised. It is also sometimes messy!”

In this case, the messiness led to the right result. Law societies must now continue the important work of “promoting equality by ensuring equal access to the legal profession, supporting diversity within the bar, and preventing harm to LGBTQ law students.”