SOCIAL: DISTINGUISHING THE FACTS/ Law Society of British Columbia v. Trinity Western University and Brayden Volkenant, Supreme Court of Canada, 2018 SCC 32

CASE BRIEF:  Law Society of British Columbia v.  Trinity Western University and Brayden Volkenant, Supreme Court of Canada,  2018 SCC 32

Facts:

Respondent seeks to open a law school requiring faculty and students adhere to religious based code of conduct even though they are at the privacy of their own home. 

Appellant held a vote with members of the Benchers of the LSBC on the issue of TWU’s proposed law school and declared that TWU’s proposed school was not an approved faculty because of its mandatory covenant. 

Respondents successfully bought judicial review proceedings to the Supreme Court of British Columbia arguing that LSBC decision violates religious rights protected by by s. 2(a) of the Charter.

Issues: 

Does LSBC’s decision violate religious rights? 

Since the decision of Law Society of British Columbia not to recognize TWU’s proposed law school, TWU and Brayden Volkenant brought judicial review proceedings to the Supreme Court of British Columbia arguing LSBC’s decision violates religious rights.   Canadian Charter of Rights and Freedoms, ss. 1, 2(a), (b), (d), 7, 15, 32, 33. 

Is TWU’s covenant in the interest of the public?  

The holding and expression of the moral views of marriage which underpin the portions of TWU’s Covenant that are at issue here have been expressly recognized by Parliament as being inconsistent with the public interest. Civil Marriage Act, S.C. 2005, c. 33, preamble, s. 3.1.

Do the infringed rights have a basis?  

The Constitution Act, 1982 gives normative primacy to the rights and freedoms guaranteed by the Charter. By virtue of s. 1, any limit on these guarantees is presumptively unconstitutional. This means that rights infringements can stand only if the limit complies with the requirements of s. 1

Is the minister’s withdrawal consistent with the decision of the Benchers?  

The Benchers passed a resolution declaring that TWU’s law school was not an approved faculty of law. Minister withdrew his approval of TWU’s proposed law school under the Degree Authorization Act Degree Authorization Act, S.B.C. 2002, c. 24, s. 4(1).

Does TWU serve the public interest and are they contravening on human rights?  

The Legislative Assembly of British Columbia has determined that the public interest is served by accommodating religious communities by providing that they do not contravene provincial human rights law when they grant a preference to members of their own group.  Human Rights Code, R.S.B.C. 1996, c. 210, s. 41. 

What authority do the Benchers have?  

The LSBC Benchers were entitled to hold a referendum of members on the question of TWU’s proposed law school. Section 13 of the Legal Profession Act does not limit the circumstances in which the Benchers can elect to be bound to implement the results of such a referendum. The legal profession in British Columbia is self-governing; the majority of Benchers are elected by the LSBC membership and make decisions on behalf of the LSBC as a whole. It is consistent with this statutory scheme that the Benchers may decide that certain decisions they take would benefit from the guidance or support of the membership as a whole. Law Society Rules, adopted by the Benchers of the Law Society of British Columbia under the authority of the Legal Profession Act, S.B.C. 1998, c. 9 (effective December 31, 1998), rr. 1-9(2), 2-27.

Is the LSBC exercising power as according to its governing statute?  

The LSBC is the regulator of the legal profession in British Columbia.  The LSBC’s structure, object and powers are set out in its governing statute.  The LSBC was exercising power delegated by the Province.  Legal Profession Act, S.B.C. 1998, c. 9 (effective December 31, 1998), rr. 1-9(2), 2-27.

Is the LSBC considering public interest?  

The LSBC is the regulator of the legal profession in British Columbia. In determining who should be admitted to the practice of law and thus whether a particular law school should be accredited, the LSBC is required by statute to consider the public interest. Legal Profession Act, S.B.C. 1998, c. 9, ss. 3, 11, 13, 19 to 21, 20(1)(a), 21(1)(b), 26 to 35, 26, 28.

Is TWU discriminating against LGBTQ?  

TWU is not for everyone. To the contrary, TWU, by virtue of its enabling statute, literally is for everyone. Its aim is to “provide for young people of any race, colour, or creed university education in the arts and sciences with an underlying philosophy and viewpoint that is Christian”: Trinity Western University Act, s. 3(2). Accordingly, TWU must open the doors of its proposed law school to members of other religions as well as to nonbelievers.  Trinity Western University Act, S.B.C. 1969, c. 44, s. 3(2).\

Decisions:  SCC decided against allowing the appeal thus withdrawing approval of the proposed law program at Trinity Western University.

Reasoning:

TWU sought judicial review with the British Columbia Supreme Court and the Court of Appeal agreed with TWU and held the decision of LSBC was unreasonable.

The question of did LSBC infringing the Charter by withdrawing its accreditation of the proposed law school at TWU because of the effect of the Covenant on prospective law students, it did not. 

The LSBC has a broad mandate to regulate the legal profession in the public interest.  It was within the statutory mandate of the LSBC to consider the effect of the Covenant on prospective law students

A conclusion that s. 2(a) is not infringed in this case. It was also concluded that no other Charter infringements have been made out on the record in this appeal.

Analysis:

The supreme court denied the application because they felt that it violated chartered religious rights.  They further felt that it did not represent the interest of the public which is paramount to the legal field.