Part Three: Implications
The Supreme Court did not require any provincial or territorial law society to refuse accreditation to TWU’s law school, although the majority of justices said that decisions by the B.C. and Ontario law societies not to accredit were reasonable and constitutional. As well, the court did not challenge the Federation of Law Societies’ decision to approve the law school.
Since the decision was not opposed by law societies in many other jurisdictions across Canada, the implication is that TWU could establish an accredited law school in one of those other jurisdictions. (TWU currently has campuses in the two provinces where law societies have refused to accredit their proposed law school, namely Ontario and B.C.)
As well, it is the provincial government that empowers a university to grant degrees. The B.C. government has decided only to approve degree programs that are first approved by the relevant professional society. In TWU’s case, the B.C. government had approved the law program once it had been approved by the Federation of Law Societies, but when the LSBC refused to accredit the program, the government withdrew its approval.
A law school does not need to be accredited by the law societies to function. No accreditation would only mean that TWU’s law school graduates would need to apply for admission to the law society in the same manner as graduates from law programs outside of Canada. If given the right to grant a law degree by a province, TWU could establish a law school there.
Some of the arguments in the majority decision may be helpful in cases where a government agency requires policies or activities that violate someone’s religious beliefs or conscience, creating barriers to full participation.
There are a number of troubling elements in this decision.
First, the majority of the court relied on Charter values in interpreting the authority of the law society and what public interest means. As the dissenting justices forcefully argued, while Charter rights are part of the Constitution that has been written and passed by legislatures and Parliament, Charter values are vague and not clearly formed; they are subjective and easily shaped by ideological bias.
Second, this decision indicates a shifting understanding of state neutrality and secularism. In Canada, a neutral state has historically meant that the state is non-sectarian, that it treats everyone fairly, regardless of belief or ideology. It has also meant that government itself should not promote a sectarian agenda and that it should not require agreement with one set of particular beliefs (whether religious or ideological) in order to receive a public benefit and the protection of the state.
Hence when it provides accreditation, a public benefit or protection, it is not endorsing the beliefs or ideology of the person or group in question. For example, the government has given charitable status to thousands of religious charities and no one suggests that by doing so the government is endorsing the religious views of any of these charities. State neutrality has still allowed the government to partner with religious organizations in advancing the public good – providing social services for example.
As Justices Côté and Brown communicate in the dissenting opinion, there is a difference between offering accreditation to a private institution and endorsing the institution’s religious beliefs or practices. As they state, equating approval and condonation “operates to exclude religious institutions, and therefore, religious communities, from the public square solely because they choose to exercise their Charter-protected religious beliefs” (paragraph 338).
These issues drive to the heart of what it means for Canada to be a free and democratic society characterized by deep religious and ideological plurality. How do we live with difference without excluding minorities who contribute to the public good from full participation in the public square?
In the words of the dissenting opinion: “Properly understood, secularism connotes pluralism and respect for diversity, not the suppression of full participation in society by imposing a forced choice between conformity with a single majoritarian norm and withdrawal from the public square. Secularism does not exclude religious beliefs, even discriminatory religious beliefs, from the public square. Rather it guarantees an inclusive public square by neither privileging nor silencing any single view” (paragraph 332).
Parts One and Two
Go back to Bruce Clemenger's analysis of the majority part of the court decision and the dissenting part. Get all the latest resources on the TWU case at TheEFC.ca/TWUlaw.
Author: Bruce J. Clemenger