The Law Society of British Columbia has invited submissions from the public as it considers whether or not to accredit the proposed law school at Trinity Western University so that its graduates may be admitted to the legal profession. The BCCLA takes the position that to deny this application based on the university’s Community Covenant would infringe the Charter-protected freedom of association and religion of members of the faith-based private university.
The BCCLA has long fought against discrimination on the basis of sexual orientation, including in multiple court cases. This includes our acting as co-plaintiffs in Little Sisters Book and Art Emporium v. Canada to protect the rights of the LGBT community from discrimination by Canada Customs agents targeting shipments to bookstores catering to the community, and intervening in Chamberlain v. Surrey School District No. 36 to support the principle of the public school system remaining secular and to ensure that respectful education of students concerning same-sex relationships was achieved. It is the BCCLA’s deeply held conviction that queer rights are human rights.
At the same time, as civil libertarians, we value the fundamental freedoms of people to come together with like-minded persons to express and seek to further their conscientiously held beliefs. That’s what s. 2 of the Canadian Charter of Rights and Freedoms is all about, protecting our freedoms of association, of assembly, of belief and of expression.
Those freedoms were called “fundamental” by the framers of the Charter for a reason – without them, we would have no right to hold or express our conscientiously held beliefs, religious or not, or to join with others, whether to worship, to educate, to celebrate, to create art, for mutual support, or to work for political, social or economic change. Indeed, the freedom to join together in accordance with our beliefs with those who share our beliefs, on the terms we choose, is vital, not least for equality-seeking groups. That freedom is essential to the ability of the marginalized, the powerless, and the vulnerable to act collectively to challenge unjust laws, practices and institutions.
The Law Society is mandated by statute to regulate the legal profession of BC in accordance with the public interest. In the exercise of these responsibilities, the Law Society is bound by the Canadian Charter of Rights and Freedoms, and it is bound to respect and comply with the
freedoms and rights the Charter guarantees in the exercise of its regulatory powers. In the application before you, the right to equality, freedom of expression, freedom of association and freedom of religion are all implicated. In our respectful submission, only through adopting
the Federation’s approval of TWU’s proposed law school for accreditation can the fundamental freedoms of the students and faculty of TWU be recognized and respected.
TWU is a private religious university. TWU requires its students, as a condition of enrolment, to sign a Community Covenant under which they agree to “voluntarily abstain” from “sexual intimacy that violates the sacredness of marriage between a man and a woman.” While it is the implications that this aspect of the Community Covenant have for LGBTQ students that have received the most attention in this current controversy, it is worth noting that that is only one part of a
comprehensive faith-based code of conduct that members of the TWU community agree to abide by.
Were such conditions imposed on students attending a public faculty of law they would rightly be seen as unlawful discrimination contrary to s. 8 of the Human Rights Code of BC, as well a breach of students’ rights to equality under s. 15 of the Charter. But it is crucial to remember that TWU is not a public university and these conditions are not imposed on TWU students – they are voluntarily accepted by those students who choose to attend TWU. The Charter does not apply to TWU as a private institution, and, as held by the Supreme Court in Trinity Western University, s. 41 of the Code means that TWU does not contravene the Code where it prefers members of its religious constituency (para. 35).
The BCCLA believes that any private religious institution must have the right to its conditions for membership in accordance with the religious beliefs held by that membership. Individual members of a religious faith are similarly free to observe or to reject these conditions, and to make decisions about whether they wish to belong to these institutions accordingly. These freedoms are essential to the ability of any religious group to carry on its existence. People who are not members of a particular religion (and even those who are) may not approve of or be comfortable with the beliefs of that faith. However, BCCLA’s position – in accordance with the decision of the Supreme Court of Canada in Trinity Western University – is that the repugnance of a certain set of beliefs even to a majority of Canadians cannot be the basis to deny a public good, such as entry to a profession, to members of that faith.