Reflections on the Ontario Superior Court’s Decision in TWU v. LSUC

07 July 2015

This is the second of three legal challenges launched by TWU against provincial law societies who are objecting to TWU’s Community Covenant and refusing to recognize TWU law degrees unless that covenant is changed.

In the first case, a Nova Scotia court ruled in favour of TWU (and this decision is being appealed by that Law Society). The third challenge involving the British Columbia Law Society will be heard in late August.

TWU, an evangelical religious educational community, does not require students to affirm the Christian faith. It does, however, require students to sign the Community Covenant by which they agree to adhere to a code of behaviour that is in keeping with the evangelical religious vision of life that animates that university.

Harassment, bullying, disrespectful comments/behavior for any reason, including sexual orientation, violate the covenant. The covenant asks students to refrain from “sexual intimacy that violates the sacredness of marriage between a man and a woman.”

The Ontario law society, called the Law Society of Upper Canada (LSUC), argued that the covenant discriminates against gay and lesbians and also common-law couples and would hinder such students from attending.

While the court decision reaffirmed that the covenant does not violate the provisions of the Human Rights Code in B.C., the court also declared that discrimination is discrimination, whether it is lawful or not.

The court also acknowledged that the decision not to accredit the law school does interfere with the religious freedom of TWU and its students.

The LSUC has a mandate to ensure there are no obstacles or barriers to admission to law schools other than those based on merit, and had to balance this with the religious freedom of TWU. The court decided the LSUC’s decision struck a reasonable balance, as it does not, in the court’s view, attempt to regulate TWU or deny its right to manifest religious beliefs, nor does it mean, as the court sees it, that TWU cannot establish a law school. TWU can have its law school, it just will not be accredited by the LSUC.

However, the decision not to accredit TWU’s law school limits the ability of TWU graduates to practise law in the largest market for lawyers in Canada. While the court said this is an economic matter and not one of religious freedom, limiting the economic prospects of TWU graduates not because of merit but solely because they attended a religious institution is also discrimination. Following the court’s own words, discrimination is discrimination.

The court argued that the TWU community covenant compels belief and infringes on the identity of gay and lesbians. Actually, the covenant does not require students to subscribe to the tenets of an evangelical faith. It does require students to respect the code of conduct that flows from theses religious convictions.

Contrary to what the court rules, this does not compromise anyone’s identity. The covenant is about conduct, not belief and identity. It clarifies how students are expected to abide by the rules of conduct while a member of the community. This is a central point of the conflict: should behavior and identity be conflated?

Interestingly the court did note that even if the law school itself was not accredited, individual graduates might still apply for admission to the bar in Ontario. Following the court’s own logic, if TWU graduates were denied admission on any grounds other than merit, then the LSUC would itself be guilty of discrimination.

It is important to note that the Federation of Law Societies, our national grouping of provincial law societies, has already recognized that TWU’s proposed law program would meet the academic standards established by the Federation.

Of course, basing admissions on merit is also a form of discrimination – though the court would argue that in the context of a university, academic merit is a legitimate ground for determining who is accepted. At its core a university is about academic excellence.

A statement of faith or community covenant functions in the same way for a religious association – it articulates the defining characteristics of that community. And it is accepted in law that religious organizations can discriminate based on religion just as an academic institution can discriminate on academic merit (or a sports club based on athletic ability).

Such discrimination is legitimate and lawful as it is necessary to the formation and free functioning of diverse institutions and associations. It is the cornerstone of a free and democratic society – freedom of religion, of expression and of association.

Even if individual graduates would be admitted to the LSUC, and the LSUC should confirm that they would, the interference with TWU’s religious freedom as a community is a severe challenge not only to the freedom of all religious institutions and communities but to the idea of a robust pluralism.

We live in a multi-cultural and religiously diverse society where people are free to gather, to form associations and institutions to pursue that which they deem important to their vision of the good life. This is the cornerstone of a liberal society. Such a society is premised on toleration and respect for difference and the recognition that diverse ways of life can contribute to the public good.

The beliefs of Evangelicals are not in any way incompatible with the practice of law. In fact the court noted that Evangelicals have been attending secular law schools for decades without a problem and have been accredited by law societies without any problems. Neither should TWU’s beliefs and community covenant be a barrier to its accreditation.