Supreme Court Chief Justice Beverley McLachlin once wrote that "a multicultural, multireligious society can only work if people of all groups understand and tolerate each other." But when one party's rights start to bump up against another's in that society, what does that understanding and tolerance look like? It's at this point that the question at hand becomes one of balance.
Last week saw four days of court hearings over the denied accreditation of Trinity Western University's new law school by the Law Society of Upper Canada. Inside the courtroom at the Divisional Court in Toronto, the arguments of the lawyers for both sides were, unsurprisingly, laced with personal conviction. The training of law students is an issue close to the heart for lawyers who will eventually pass the torch to the younger generation. Both sides had arrived to represent a principle that they firmly believed in: on the side of TWU, religious freedom for the training of new lawyers, and on the side of LSUC, freedom from discrimination for lesbian and gay students.
Both concerns are valid. TWU's community covenant is prohibitive for gay and lesbian students who don't follow a religious conviction that they should abstain from same-sex sexual activity. While LSUC admits this is not illegal discrimination, they argue that the requirements discriminate against LGBT students by discouraging them from applying to the new law school. The Law Society's case boils down to the argument that as an administrative tribunal with a mandate from the state, they have to reject what they see as unequal treatment of lesbian and gay students.
On the other side, TWU's case is also valid. As a private institution governed by B.C.'s human rights code, they are allowed to set conduct requirements in accordance with their religious beliefs. They argue that as shown in Trinity v BCCT (2001), Canadian law and the Supreme Court prevent accreditation bodies such as LSUC from discriminating based on religious requirements of the institution in question. And agree or disagree, TWU's position on marriage is an authentic expression of the school’s understanding of how God calls Christians to live their lives.
In short, both sides have made claims to the right to be free from discrimination. Both have argued their cases using equality rights. This suggests that a proper solution to this issue was not, as LSUC's lawyers suggested, an outright rejection of TWU's application for accreditation. But in both their original deliberations and their court submissions this week, LSUC seemed unwilling to admit that a right to religious freedom is at stake, or should even present a consideration in the court's decision.
TWU's closing argument outlines the problem clearly: in making the decision of whether or not to accredit TWU, the law society should have undertaken a balancing of the rights of TWU against the objective of preventing discrimination. The requirement to do so is derived from Section 1 of the Charter of Rights and Freedoms, and outlined in Doré v Barreau du Québec (2012). In this case the Supreme Court found that administrative tribunal decisions are subject to a standard of "reasonableness," which is dependent on "proportionality"—ensuring that a tribunal interferes with a right no more than necessary when pursuing its goal. This means balancing the right (in this case, TWU's right to religious freedom) against the goals of LSUC (preventing discrimination in legal education). Buried beneath the legal jargon is a straightforward requirement to take everyone's rights into account when making a decision.
The result of all this? As a minimum, LSUC was required to clearly consider TWU's right to religious freedom and balance it against the resulting discrimination against gay and lesbian students. While LSUC did not provide any written reason for their denial of accreditation, the record of their convocation shows that many LSUC benchers denied that religious rights were at stake. Given this, it is hard to believe that LSUC gave careful thought to how to minimally interfere with TWU's religious freedom.
Given the reluctance of LSUC to conduct this balancing, it is now up to the court to do so. In a decision that involves competing rights, the answer is never clear-cut. But if Canada's legal system is to also be a justice system, we need to do more than just blindly assert our own rights. Instead, as Chief Justice McLachlin suggests, we need to recognize that our own rights need to be balanced fairly against the rights of others in our society, even others with whom we differ. Regardless of the outcome of the case, one can only hope that the court shares this opinion.