Part Two: The Dissent
Two justices did not agree with the findings of the majority of the court and wrote a dissenting opinion. These two justices, Côté and Brown, contend that the law societies’ refusal to accredit TWU profoundly interfered with the community’s freedom of religion. They reasoned that in an attempt to ensure equal access to the legal profession, the majority “effectively denied access to a segment of Canadian society, solely on religious grounds.”
Since there was no dispute about whether the future graduates would be competent and qualified, the dissenting judges reasoned there is no justification for the infringement of the religious freedom of the TWU community.
“The decision not to approve TWU’s proposed law faculty because of the restrictions contained in the Covenant – a code of conduct protected by provincial human rights legislation – is a profound interference with religious freedom, and is contrary to the state’s duty of religious neutrality” (paragraph 268).
They said accreditation of the law school would be consistent with the public interest as “Tolerance and accommodation of difference serve the public interest and foster pluralism” (paragraph 269).
The dissenting justices also objected to the majority’s reliance on Charter values to determine the limit of the governing statute. Unlike rights found in the Canadian Charter of Rights and Freedoms, the values are undefined and without a known source. These Charter values, they wrote, are therefore “entirely the product of the idiosyncrasies of the judicial mind that pronounces them to be so” (paragraph 308). They state, “What is troubling, however, is the imposition of judicially preferred ‘values’ to limit constitutionally protected rights, including the right to hold other values” (paragraph 310).
The dissenting justices found that the mandate of the Law Society of British Columbia is limited and that its responsibility to the public interest only applies to its mandate. The law society’s mandate does not include a law school’s admissions policy, but only whether the law school’s graduates “meet the standards of competence and conduct required to become licensed” (paragraph 280). The mandate of the law society, wrote the dissenting justices, “empowers it to control the doorway to the profession, not to decide who knocks on the door” (paragraph 290).
Côté and Brown found there is a difference between recognizing or offering accreditation to a private institution and endorsing the institution’s religious beliefs or practices. “Equating approval to condonation turns the protective shield of the Charter into a sword by effectively imposing Charter obligations on private actors. And, it 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).
They said the law society’s process did not properly balance the Charter rights and the purpose of the laws governing the law society, noting that rights trump statutory objectives in the Constitution (paragraph 305).
The dissent also focused on the religious freedom of the TWU community. They wrote: “Covenanting assists in the creation and strengthening of a religious community which includes all those who study and work at TWU. It fosters their moral and spiritual growth in an academic setting. Members of the TWU community sincerely believe that, as a manifestation of their creed, studying, teaching and working in a post-secondary educational environment where all participants covenant with those around them – regardless of their personal beliefs – subjectively engenders their personal connection with the divine” (paragraph 319).
Côté and Brown found the interference with the religious freedom of the TWU community was not trivial or insubstantial. Rather, they said the interference was “profound” and “substantively coercive in nature” (paragraph 324). Accommodating religious diversity is in the public interest and promotes diversity.
The decision by certain provincial law societies not to accredit the school also violated the duty of the state to be neutral. A free society accommodates a diversity of beliefs, and “It is therefore not open to the state to impose values it deems to be 'shared' upon those who, for religious reasons, take a contrary view. The Charter protects the rights of religious adherents, among others, to participate in Canadian public life in a way that is consistent with their own values. By accommodating diverse beliefs and values, the state protects and promotes the Charter rights of all Canadians” (paragraph 331).
Parts One and Three
Continue to Bruce Clemenger's examination of the implications of the decision.
Go back to his analysis of the majority part of the court decision.
Get all the latest resources on the TWU case at TheEFC.ca/TWUlaw.
Author: Bruce J. Clemenger