At their most prosaic level, the twin appeals to the Supreme Court of Canada involving Trinity Western University will decide some of the limits on the power of regulators like law societies. But that’s not why tickets for courtroom seating were snatched up well in advance of the landmark two-day hearing last fall, and a snaking line of last-minute hopefuls vied for chance of a sightline into the makings of a historic ruling by the top court in the land.
When the many layers of the cases are peeled and examined, and the heart of the matter really comes to light, it becomes clear the judgment will change lives and help serve to define Canadian society going forward. And in somewhat more pragmatic terms, it will speak to who may become part of the next generation of lawyers in Canada. The court’s nine judges are faced with deciding whether to uphold or overturn separate decisions of two provincial law societies, both of which have refused accreditation of the evangelical Christian university’s proposed law school.
Beneath that cursory summary simmer a host of far-reaching and novel issues stirred up by the apparent clash of freedom of religion and equality rights entrenched in the Canadian Charter of Rights and Freedoms, as well as the charge of infringement of academic freedom of staff at the school. The resulting soup presents an unusually rich and intricate tangle of legal and constitutional questions to the court.
The facts of the cases were argued before lower courts on the one side as a right to freedom of religion in which a faith-based university admissions and employment policy is protected; and, on the other, as a policy that is discriminatory and exclusionary in violation of the equality rights also enshrined in law. TWU doctrine requires students, staff and faculty to adhere to “historic orthodox Christianity” where Scriptures must be believed and obeyed in their entirety. Counsel for TWU have argued that as a private sectarian body, the school is not bound by the Charter or any provincial human rights legislation; and moreover, the objective of the university and members of its religious community to produce lawyers trained in an evangelical Christian tradition is both lawful and sheltered within their Charter-protected religious freedom and equality rights.
The law societies counter that TWU is attempting to erect a discriminatory admissions barrier against LGBTQ and other would-be students through their faith-based code of conduct that reserves sexual intimacy to marriage between a woman and a man. Such a barrier, they argue, infringes upon the same equality and religious freedom rights of would-be students who object to the obligations and beliefs espoused in the covenant, something which, as regulators, they cannot countenance.
CAUT argues the TWU doctrine, which faculty must meet on appointment and renew annually, constitutes a violation of academic freedom as faculty are required to recognize and express the doctrine in their teaching and scholarship.
“TWU’s Statement of Faith and Community Covenant requires academic staff to commit to a particular ideology or statement of faith as a condition of employment,” says CAUT executive director David Robinson. “Violating that commitment may result in discipline or sanction, and as such, is an unacceptable constraint on academic freedom. This is why CAUT intervened in the case.”
The case has been repeatedly described as one of the most controversial in a generation, and could account for the line-up which grew and jostled for two days outside the packed courtroom as people waited for a chance to see the Supreme Court at work. A lengthy docket of lawyers representing both law societies, TWU and an unprecedented list of intervenors on the questions of equity, religion and other legal points — including CAUT on academic freedom — packed the benches along with stacks of legal precedents and bound arguments, while observers of many a faith and stripe watched closely as lawyers made their cases, and were in turn questioned by the jurists on points of law.
CAUT maintains there are four key aspects to academic freedom: freedom of teaching, freedom of research and publication, freedom to express one’s views in and of the educational institution (“intramural academic freedom”) and freedom to exercise citizenship rights without sanction (“extramural academic freedom”).
In his address, CAUT counsel Peter Barnacle argued a different definition of academic freedom had been put forward by counsel for TWU, who cited a version of “institutional integrity and autonomy” adopted by Universities Canada in 2010.
“This is a split from the traditional view of what academic freedom means going back centuries, which is an individual freedom of the academy,” Barnacle said. “Academic freedom belongs to the academic member and is within their right to exercise. It cannot be restrained, other than within the general law that applies to all forms of expression.”
Legal counsel for the remaining intervenors presented their arguments on issues including whether corporations or organizations such as religious education bodies and churches, as opposed to individual members, are within the scope of protection of the Charter’s guarantee of freedom of religion; the scope of law societies’ powers to operate without external reference in order to exercise a public interest mandate; and the correct standard of review to apply to administrative decision-makers balancing Charter rights (“correctness” vs “reasonableness”).
TWU’s position was endorsed by a long list of intervenors including the National Coalition of Catholic Trustees Associations, the Christian Legal Fellowship, the Canadian Conference of Catholic Bishops, and the Faith and Freedom Alliance, but not the United Church, which spoke against TWU’s urging of the court to recognize for the first time that entities like corporations fall under the protection of the Charter.
Their brief states in part that: “…corporations and institutions are unable to hold beliefs and do not have consciences. The United Church is concerned about efforts to expand s.2(a) in a manner that would give such organizations licence to discriminate against those who disagree with the precepts of the organization’s principals [who run the organization]…(and) would enable those organizations to defend their own opaque and discriminatory decisions in the name of faith.”
The topics of discrimination and whether supporting diversity within law schools is or should be an over-riding consideration for regulators such as law societies were addressed by other intervenors also aligned against TWU’s stance.
Counsel for the Canadian Bar Association supported arguments by the law societies that regulators can deny accreditation, as a tangible form of government support, on the basis of a faith-based exclusionary admissions policy.
Robinson agrees: “In particular, it is the denial of same sex rights and relationships at TWU that led to the rejection of accreditation by the two law societies. In the balancing of equality rights and freedom of religion under the Charter at issue in these cases, CAUT takes the position that the violation of academic freedom at TWU would inhibit the promotion and protection of diversity that must be expected in legal education at a Canadian law school.”
The outcome of the appeals is expected this spring. The Supreme Court will deliver written reasons for its decision, which is not expected to be unanimous.