Of course, if the facts of another case are sufficiently distinct, it could lead to a different outcome. But the charity would have to prove to the court that it would suffer irreparable harm during the suspension period. In this case, the lower courts did not agree that the charity would suffer that kind of harm.

Background

Following an audit, the Canada Revenue Agency (CRA) imposed a penalty and suspended Human Concern’s receipting privileges for one year. CRA’s position was that the charity made false charitable tax receipts.

That means that sections 188.1 and 188.2 of the Income Tax Act applied.

Section 188.1 lists penalties for various forms of non-compliance. For example, if donation receipts contain incorrect information, section 188.1(7) imposes a monetary penalty of 5% of the value of the incorrect donation receipts. If the donation receipts contain false information, section 188.1(9) imposes a monetary penalty of 125%. If that amount is more than $25,000 for a given tax year, section 188.2(1)(c) automatically triggers a one-year receipting suspension. It is effective 7 days after CRA sends, by registered mail, notice of the financial penalty.

Section 188.2(4) allows a charity to apply to the Tax Court of Canada (Tax Court) to postpone any remaining suspension period if the charity has also filed a notice of objection.

Human Concern filed a notice of objection and made an application to the Tax Court.

Tax Court Decision (August 4, 2021; unreported)

The Tax Court can grant an application to postpone a suspension “only if it would be just and equitable to do so” (ITA s 188.2(5)). For a postponement to be “just and equitable”, the requesting charity has to meet the test for an injunction. That test requires the charity show (1) there is a serious issue; (2) it will suffer irreparable harm without the postponement; and (3) convenience favours postponing.

The Tax Court must decide these applications within 30 days of filing (Tax Court of Canada Rules (Informal Procedure), SOR/90-688b, s 18.3(3)).

The Tax Court dismissed the application, finding that Human Concern would not suffer irreparable harm and that the balance of convenience favoured the government.

The charity appealed to the Federal Court of Appeal (FCA).

Federal Court of Appeal Decision (March 2, 2022)

At the FCA, Human Concern argued that the Tax Court made two main errors.

First, that the Tax Court was wrong to find the suspension of receipting privileges would not result in irreparable harm. The FCA disagreed. It held that Human Concern was asking the court to reweigh the evidence, which was beyond its role. The FCA also held that the Tax Court was “entitled to discount” Human Concern’s assertions about the existence of irreparable harm.

Second, that the Tax Court failed to account for principles of natural justice. The FCA held there was “no merit” to Human Concern’s natural justice arguments. The principles of natural justice ensure that the procedure is fair. What is fair depends on the context of the decision being made, but core elements include an impartial decision-maker, a right to be heard, and knowing the reasons for the decision.

The FCA dismissed the appeal.

Supreme Court of Canada Decision

The charity asked the SCC to hear a further appeal. As noted at the outset, the SCC decided not to hear the appeal.

Receipting Resources

Questions about receipting? In addition to our recent post about year-end donations, check out our member Knowledge Base section, Charitable Receipts. You’ll find checklists, tips and topics included split-receipting, services, and what has to be included on official donation receipts.

The post SCC Dismisses Leave to Appeal Re: Receipting Suspension appeared first on CCCC Blogs.

With severe restrictions on liberty that are in a constant state of flux, it’s not surprising to find a lot of people wondering “what about our Charter rights?” In this post, we’re going to look at the Charter and how it works: what rights it protects, and how courts consider Charter rights claims.

We’ve created a space in The Green for Christian leaders who want to talk about these issues – pandemic restrictions, religious freedom, conflicting opinions, uncertainty. Share your thoughts in a space where people are committed to listening well and respecting each other. Please join in!

Now, as you get started with Charter Rights 101, I’ll warn you in advance that this post is longer than usual, so you’re going need a few minutes.

Protected Rights

The Charter is part of our constitution. As a constitutional document it is ‘supreme’ in that all other laws must be consistent with the Charter. And while our constitution – and Charter – are Canada’s ‘supreme’ documents, the Charter actually begins with a preamble recognizing that Canada is “founded on principles that recognize the supremacy of God and the rule of law.” But before you start planning out a religious freedom claim with this statement in mind, you should know that the Supreme Court of Canada explains it as simply being an articulation of the “political theory on which the Charter’s protections are based.”

What are those protections? The Charter protects seven broad categories of rights:

• Fundamental freedoms: freedom of conscience and religion; thought, belief, opinion and expression; peaceful assembly; and association.
• Democratic rights: the right to vote, a five-year maximum term for legislative bodies (with exceptions for war, invasion or insurrection) and a minimum once-per-12 months meeting of legislative bodies.
• Mobility rights: citizens have the right to enter, remain in or leave Canada; to move from province to province and to look for work in any province.
• Legal rights: apply most directly to interactions with the justice system and include rights like knowing why you’re being arrested, the right to counsel, to not be arbitrarily detained, to be protected against unreasonable searches, to be tried within a reasonable period of time, and to the rights of life, liberty and security of the person.
• Equality rights: provide for equal protection and benefit of the law without discrimination on the basis of certain, listed (and unlisted but added through court decisions) characteristics like race, colour, religion, sex, disability.
• Language rights: entrench English and French as the official languages of Canada. Related, citizens have the right for their children to be educated in the minority language in a province.

Application of Rights

The Charter applies to the federal and provincial governments. It doesn’t apply to your neighbour. “Government” includes legislation, direct government actors, and government actors by virtue of legislative control/authority. If the government decided to close religious private schools but not public schools and not other private schools, that would raise Charter claims. If your neighbour vehemently opposes religious schools, thinks they should all be permanently closed and publicly promotes that view, that would not raise a Charter claim.  

It also doesn’t usually apply to private entities.* Business owners, non-government service providers and employers are not obliged to adhere to the Charter. They are obliged to follow human rights codes. These codes or acts often provide similar protections and are usually informed by how we understand Charter rights, but the general rule is that you can’t make a Charter rights claim against a non-government entity.

*There are some grey, “middle ground” areas. If an entity exercises government functions or implements government programs, the Charter would apply. It’s a context-specific question that looks at the nature of the activity to decide whether it is truly governmental in nature. For example, the Charter has not been applied to a university’s mandatory retirement policy, but has been applied to a university’s regulation of freedom of expression by students on university grounds.

Claiming Rights

Whoever is claiming a Charter right has to prove that the right has been infringed. For example, a religious freedom claimant  needs to show that (1) she sincerely believes in a belief or practice that has a nexus with religion and (2) the law or rule interferes with her ability to act in accordance with her beliefs in a way that is more than trivial or insubstantial. That means the beliefs or practice must reasonably or actually be threatened.

Other rights have other tests. The test for an infringement of religious freedom is not the same as, for example, the test for expression or equality.

But just proving an infringement doesn’t end the analysis. If the right has been infringed, the obligation (or “onus”) shifts to the government to try and show that the infringement is justified. This is necessary because no right is – or can be – absolute.

Justifying Rights Infringements

Section 1 of the Charter allows Charter rights to be infringed when the limits are “prescribed by law” and “can be demonstrably justified in a free and democratic society.”

What does that mean? In a 1986 decision known as Oakes, the Supreme Court of Canada set out a test to practically apply section 1 and figure out whether rights infringements can be justified. The Oakes test has a few parts and we’ll quickly walk through each (volumes could be written on each component, so what follows here is only an overview!).

Step One: Is the limit prescribed by law?

What does it mean for a limit to be prescribed by law? This part of the test basically asks first, whether the limit is authorized by law, as opposed to being arbitrary; and second, whether the limit is precise, accessible, and clear enough so that people can regulate their conduct.

This isn’t a high hurdle to pass and to fail the law or rule limiting the right would have to be so obscure that it is “incapable of interpretation with any degree of precision.”

Step Two: Is the limit reasonable?

This step has a number of sub-steps.

Is the objective pressing and substantial?

This asks whether the objective of the law or rule is sufficiently important to justify overriding a constitutionally protected right or freedom. At this stage the consequences aren’t yet taken into account. It simply asks what the law is trying to accomplish and could that be important enough that rights would need to acquiesce.

Is the limit rationally connected to the objective?

Another way to phrase this is whether the law is carefully designed to achieve the objective (which is pressing and substantial). There must be a causal connection between the infringement and the benefit sought, asking whether the rights-limiting measure can further the objective.

Is the limit minimally impairing?

Another way to phrase this is whether the law impairs the Charter right as little as possible. It doesn’t have to be perfect, but the government would have to provide an explanation if a significantly less intrusive and equally effective measure was not chosen.

Is there proportionality?

Another way to phrase this is whether the overall effect of the law on the claimants is disproportionate to the objective. Is the harm from infringing the right outweighed by the benefits associated with the rule in a proportional way?

Claiming & Justifying Rights Infringements: An Example

Let’s take the steps outlined above and go through them in a real case. In Taylor v Newfoundland and Labrador, Kim Taylor, along with the Canadian Civil Liberties Association (CCLA), challenged COVID-19 related travel bans.

Section s 28(1)(h) of the Public Health Protection and Promotion Act (PHPPA) authorizes the Chief Medical Officer to restrict travel to the province. In April 2020, a “Special Measures Order” was issued that limited entry to residents, asymptomatic workers and those in extenuating circumstances, with a second “Special Measures Order” modestly expanding the list of circumstances considered extenuating.

Taylor sought an exemption after her mother unexpectedly passed away. She made arrangements to self-isolate for 14 days after arriving in Newfoundland from her residence in Halifax, Nova Scotia, and for the funeral to take place after that period. Her request was denied. She submitted a request for reconsideration, and she was ultimately granted entry, but only after the funeral had taken place.

In the court challenge, Taylor argued two things. First, that s 28(1)(h) of the PHPPA was outside the province’s scope of constitutional authority and that by restricting all travel it violated her s 6 Charter right to mobility. Second, that the province’s decision to deny her entry to attend her mother’s funeral violated her s 7 Charter rights to life, liberty and security of the person. The CCLA also tried to challenge investigative and enforcement provisions but the court did not give CCLA standing (the right to) challenge those additional sections.

Claiming the Right

After reviewing the history of s 6 mobility rights in Canadian court decisions, the court in this case found the claim was to “a simple right of mobility” to travel within Canada and that Taylor’s right was infringed when she was denied entry. Section 6 is a “right of action,” the “right to choose,” the “right to travel for livelihood or residence,” the “right to come and go” as one pleases. Section 6 does not limit mobility rights to a certain part of Canada or to someone’s province of residence. And, the court asked rhetorically, how does someone exercise this right “without the ability to traverse provincial and territorial boundaries?”

Section 7 of the Charter protects the life, liberty and security of the person. Underlying liberty and security of the person is a concern for the protection of autonomy and dignity; the right to make fundamental personal choices free from state interference.

The court disagreed that Taylor’s s 7 rights were infringed because the rights usually protected under this section “are qualitatively different” than the choice to attend a family funeral. Taylor was unable to demonstrate an infringement of her s 7 rights.

Justifying the Infringement

In this case, the s 7 rights didn’t move on to the justification stage because the court disagreed they were violated. The s 6 rights were violated, and the question then became whether that violation was justified.

Step One: Is the limit prescribed by law?

The PHHPA is a piece of legislation, which makes the answer here an easy “yes”.

Step Two: Is the limit reasonable?

Is the objective pressing and substantial?

The court held that the objective of the travel ban was “to prevent the spread of COVID-19 in the province” and that “the existence of COVID-19 as a public health emergency is beyond question.”

Is the limit rationally connected to the objective?

Taylor argued that the government failed to show why the requirement for self-isolation was insufficient to address its concern, noting that the government had “already been successful at flattening the curve.” The government used modeling to justify its policy and decision. While the government is supposed to bear the burden of proof to justify rights limitations, the court commented that “no evidence has been adduced to counter [the government’s] conclusion” or question the modeling methodology. Based on the uncontradicted evidence, the court held it was “beyond argument” that the restriction was an effective means to meet the objective.

Is the minimally impairing?

The court accepted that a “pandemic is not a magic wand which can be waved to make constitutional rights disappear” or immunize a decision of the Chief Medical Officer from review. However, the court also found that even though other measures were taken, based on the evidence presented, none of them were effective substitutes for the travel ban. The travel ban was “integral” to “wrestling this disease into submission” and it satisfied “the least drastic means component” of the test.

Is there proportionality?

In a perfunctory analysis on this point, the court found “while restrictions on personal travel may cause mental anguish to some, and certainly did so in the case of Ms. Taylor, the collective benefit to the population as a whole must prevail.”

In the end, the government succeeded in justifying the rights violation. Ms. Taylor’s application was dismissed.

Conclusion

And that, patient readers, in a nutshell is how a real-life Charter rights claim was analyzed. What can we learn? Evidence is exceedingly important, and even though a claimant doesn’t bear the burden of disproving a justification, leaving evidence uncontradicted will not help your case.

Charter challenges are always, well, a challenge. But from this example we learn that in the context of COVID-19 claimants have an even greater uphill battle. It may be clear that certain Charter rights, from association to mobility, are infringed by government regulations. On the question of religious freedom under COVID restrictions, see Professor Brian Bird’s recent column in the Vancouver Sun. Establishing an infringement is only the first step in making a Charter claim – it doesn’t necessarily mean that the courts will grant a remedy or overturn restrictions. The more difficult task is to demonstrate whether the infringement is justified in a free and democratic society given the deference of courts to public health officials, and the weight given to government objectives during the pandemic.

Join the Conversation!

We would love to hear how you are wrestling with the questions around pandemic restrictions and religious freedoms. And we would love to hear how you are continuing to deliver the Gospel during pandemic restrictions. 

We’ve created a space in The Green for Christian leaders who are willing to talk to each other, listen to each other, and develop a respectful and stimulating dialogue. Please joins us! We would love to hear your questions and have you share your ideas.

The post Charter Rights 101 appeared first on CCCC Blogs.

The case began when five members of St. Mary’s Cathedral were expelled over an investigation into alleged heresy within the church. The members applied to a civil court to adjudicate their dispute with the bishop. In the court of first instance, the judge decided the case was “not justiciable” – that is, there was no civil right or contract that would authorize a court to interfere. However, on appeal, the Ontario Court of Appeal (ONCA) held the opposite view. Based on the existence of a written constitution/by-laws and financial contributions in the form of tithes, the court found there was a contract between the church and the expelled members.

The ONCA’s decision calls into question the Supreme Court of Canada’ (SCC) 2018 ruling in the Wall case,[2] which concluded that civil courts do not have jurisdiction over private, theological matters such as church membership. It therefore creates confusion in the law and could undermine both the autonomy of religious communities and the duty of state neutrality.

The Aga decision is now being appealed to the Supreme Court of Canada (SCC). Given the significant implications for religious communities and voluntary associations across Canada, CCCC, ARPA and CLF are working together to urge the SCC to review the case in order to restore clarity in the law.

The application is part of CCCC’s continued advocacy on behalf of our members and the wider charitable sector. We are committed to ensuring a favourable environment for charities to operate in accordance with their faith.

You may access the coalition’s application materials here.

Support the Legal Defence Fund here.

The SCC will soon decide whether to hear the Aga appeal. We will continue to update you as matters unfold.

[1] Aga v. Ethiopian Orthodox Tewahedo Church of Canada, 2020 ONCA 10 (CanLII), <http://canlii.ca/t/j4g09>,  retrieved on 2020-03-11.

[2] Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26 (CanLII), [2018] 1 SCR 750, <http://canlii.ca/t/hs9lr>, retrieved on 2020-03-12.

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The Supreme Court of Canada (SCC) has declined to hear an appeal by Many Mansions Spiritual Centre about the revocation of its charitable status. Many Mansions was appealing a Federal Court of Appeal decision (FCA)[1] that had confirmed the revocation.[2]

When the SCC dismisses an application to appeal (called “leave to appeal”), it means the decision appealed from remains in force.[3] There are no further appeals available. For Many Mansions, this means it has no more recourse to challenge its loss of charitable status.

Why was it revoked in the first place? Many Mansions had been audited for two fiscal periods (2011 and 2012) and the Minister of National Revenue (MNR) provided multiple reasons for revocation under section 168(1) of the Income Tax Act (ITA):

• failure to devote all resources to charitable activities
• activities inconsistent with charitable objects
• providing private benefit to members
• failure to file information returns
• issuing donation receipts not at fair market value
• failure to keep adequate books and records

In its appeal at the FCA, Many Mansions argued that deciding whether its activities were inconsistent with its objects was a matter of doctrine or theology and should “have no place in government.”[4] The FCA disagreed: “in the case of a charity registered for the purpose of furthering a religious object, it may be necessary to determine the scope of that object and the extent to which the charity’s activities come within it.”[5]

Even if the doctrine/theology argument had been accepted, non-compliance with record-keeping requirements and conferring private benefit were sufficient reasons to revoke Many Manion’s charitable status. Indeed, each ground in section 168(1) ITA can independently justify revocation.

Record-keeping problems included failure to document rent payable, failure to document a loan from the pastor’s late wife, and inconsistencies in amounts due to the pastor. Many Mansions argued it was audited as a nascent charity being run by volunteers, the deficiencies were minor, and it had since hired professionals. The FCA disagreed, reiterating that “a charitable organization’s obligation to maintain adequate books and records is ‘foundational.’”[6]  These were not minor deficiencies; these were serious.

Private benefit problems included the pastor using meeting rooms to operate a private business. While the ITA permits a charity itself to carry on a related business, the pastor’s private business did not fall within the exception; it was an impermissible use of charitable funds for personal benefit.[7] 

The FCA held the MNR decision to revoke Many Mansions’ charitable status was not too severe but reasonable. The facts were sufficient to permit the MNR to see the non-compliance as “serious or aggravated” and as “warranting revocation.”[8] While the SCC does not give reasons for dismissing leave to appeal applications, a dismissal suggests the SCC sees no compelling reason to interfere with the analysis or outcome. In other words, it appears that the SCC likewise concurs with the decisions of the MNR and the FCA.

This is a good reminder that all charities need to know, understand and abide by CRA’s requirements for maintaining books and records (see part one of our recent Bulletin series on the topic). Charities also need to avoid using charitable resources for personal benefit.

[1] Many Mansions Spiritual Center, Inc. v Canada (National Revenue), 2019 FCA 189 [Many Mansions], online: http://canlii.ca/t/j16vj

[2] See my article on the FCA decision in “Horizons” CCCC Bulletin 2019:4 (4 September 2019)

[3] There are approximately 600 leave applications submitted to the SCC each year and only about 80 are approved (or “granted”)

[4] Many Mansions, at para 6

[5] Ibid.

[6] Ibid at para 10 [emphasis added]. For further information, see section 230(1) of the Income Tax Act; CRA, “Books and Records” (last modified 21 July 2016) online:  www.canada.ca/en/revenue-agency/services/charities-giving/charities/operating-a-registered-charity/books-records.html; and CCCC Charities Handbook, Chapter 26: Books and Records 

[7] See CCCC Charities Handbook, Chapter 5: Related Business Activities, “Linked and Subordinate Business”; CRA’s “Private Benefit” summary policy, (9 June 2003), online: www.canada.ca/en/revenue-agency/services/charities-giving/charities/policies-guidance/summary-policy-p09-private-benefit.html; and section 3.2.4, “Private benefit: To what extent may individuals benefit privately?” (10 March 2006), online: CRA www.canada.ca/en/revenue-agency/services/charities-giving/charities/policies-guidance/policy-statement-024-guidelines-registering-a-charity-meeting-public-benefit-test.html#toc12.

[8] Many Mansions, at paras 13-14

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After a gruelling period of legal wrangling that involved multiple court hearings in British Columbia, Ontario, and Nova Scotia and that culminated at the Supreme Court of Canada (SCC), TWU has been forced to remove the mandatory requirement that students sign its Community Covenant in order to avoid the legal harassment of professional accrediting bodies such as the law societies. However, if you listen to some law professors and legal advocates, that’s still not good enough – they are now wanting to move the goal posts by insisting further changes.

After all, the Covenant is an anachronistic throwback to a time when religious institutions were, well, religious institutions. This is the twenty-first century, and religious “pluralism” and “diversity” now mean we must all have the same views. We are so much more tolerant than we once were – so tolerant that any difference or dissent is intolerable.

The evangelical Christian community has seen first-hand what it looks like when the promise of a Charter right to religious freedom is undermined by the very profession that claims to be guardians of minority rights. Consider just how well TWU was treated by the legal system.

In 2001, the SCC ruled that TWU’s Charter right was denied when its education degree was not accredited because of its Covenant. Rather than recognizing the 2001 decision as a binding precedent, as is the norm, the 2018 Court barely mentioned it. That was then. This is now.

TWU is a private entity and therefore should be protected by the Charter, but the SCC said that the law societies could self-define the “public interest,” so it was reasonable for them to refuse TWU accreditation because the Covenant was “degrading and disrespectful”.

TWU’s Covenant does not violate human rights legislation, but the SCC devised its own test, saying the Covenant violates the ambiguous and undefined notion of “Charter values” (which dissenting Justices Côté and Brown condemned as the “idiosyncrasies of the judicial mind”). In other words, the SCC’s treatment of TWU no longer depends on the Charter or the rule of law but on the anti-religious sentiments of the legal elite. I’ve spoken before about the growing revolution in the legal community against the law’s traditional accommodation of religion. Religious communities who advocate the traditional marriage of one man and one woman are, at worst, hateful and at best, passé – their beliefs are not on the “right side of history.”

Notice how the Charter of Rights and Freedoms, a prior SCC decision, and exemption from human rights legislation are no longer adequate legal currency to ensure that religious freedom in this case exists in Canada. Now that TWU has removed the mandatory nature of the Covenant for students, the goal post has moved yet again. There is a call for an added dimension: remove the requirement for faculty and staff. Some are also suggesting having a law school that favours Christian applicants is a problem. It seems the concept of a private, religious school is foreign even though such universities pre-date Confederation in 1867. However, even if TWU were to follow through on these new demands it is highly unlikely that that would be sufficient to satisfy opponents – at least not until TWU is no longer a religious institution but one that mirrors all the other public universities in the country. So, what’s the point of the Charter’s protection of religious freedom?  And, can we really call ourselves a multicultural, plural society if we do not allow the diversity that Christian universities bring?

Indeed, the legal revolutionaries are insisting that any religious university that wishes to have a law school must pass the ultimate test: is it in sync with the prevailing views of a legal community which has come to accept the “rule of justice” rather than the “rule of law”?  “Justice” in this new era is defined on a case-by-case basis as determined by the academic and the assumed popular opinions of the day. We should be under no illusions: current legal academics have the monopoly on legal education and they are loathe to allow space for a Christian university. They want it all.  And so far, they have it all. TWU represents a threat to their hegemony.

If ever we need a Christian law school, it is now. We have seen the extent to which the legal elites maligned the Christian community in the TWU law school case. The profession is clearly in need of more young lawyers who respect and understand religious diversity and civil debate. Should TWU, that irritating crack in the legal ice rink, file another application for their law school, we will see just how tolerant the legal community is. I hope TWU does file a new application (and, if they don’t, we need another Christian university to take up the cause).

One way or another it is time that the legal profession recognizes its responsibility in allowing for the full extent of the promise of religious freedom in the Charter. That freedom can only be temporarily frustrated. I am hopeful that eventually Canada will join with the other liberal democracies that practice English Common Law, such as Australia and the United States, and allow Christians to have their law school. That will be a positive move that respects diversity and will encourage open, honest and full debate within the legal academic context as together we all participate in understanding what it means to be a free and democratic society – one that does not keep shifting the goal posts.

The post Shifting Goal Posts appeared first on CCCC Blogs.

Last Friday’s Supreme Court of Canada (SCC) decisions on Trinity Western University call for freedom-loving Canadians to courageously stand up and demand change to legislation governing the law societies in this country.

We need our legislatures to ensure that court decisions that impinge upon or remove the right of freedom of religion are nullified. Critics say religious freedom amounts to the “right to discriminate”. However, it is time that the dissenting decision of Justices Côté and Brown be implemented legislatively to further not discrimination, but accommodation of religion. Their dissent is a reiteration of the right that already exists in our Charter document as the fundamental freedom of “conscience and religion.”

The Supreme Court of Canada limited that right on June 15, and now citizens must demand it be restored.

Read the rest of this article here.

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Decisions

Background

Trinity Western University is a private religious university in Langley, British Columbia.  It requires students to sign a “Community Covenant” that while they attend the university they will respect the school’s religious teachings, including the requirement that sexual relations are only for the traditional marriage relationship of one man and one woman.  This the law societies of British Columbia and Ontario say is discriminatory and they refused to accredit TWU’s law school proposal on that basis.  The Supreme Court of Canada has now decided that the law societies were right.

The case has roiled the legal profession from the time TWU originally filed its School of Law proposal with the Federation of the Law Societies of Canada back in June 2012.  At the time the Council of Canadian Law Deans wrote a letter to the Federation stating that TWU discriminates against the LGBTQ community and that a proper investigation be made into the proposal.  That letter was then followed up with letters from the Canadian Bar Association, various legal academics and law students against TWU’s plan.  The Federation took the unusual step of appointing a special committee to review the complaints and do a thorough research on the legal implications of TWU’s law school.  In December 2013, the Federation gave its approval when the committee found, “there will be no public interest reason to exclude future graduates of the program from law society bar admission programs.”[2]

That approval was immediately met with a backlash in the legal community who called upon the individual law societies to reject the Federation’s approval and to do their own independent investigation.  That meant the law societies had to repeat the work of the Federation.  It has been a long, arduous process as TWU had to meet with the various law societies that opened up their own investigations.  In the end, three law societies voted not to respect their own Federation’s decision and to deny TWU accreditation: the Nova Scotia Barristers’ Association, and the law societies of British Columbia and Ontario.  The courts in both Nova Scotia and British Columbia ruled in favour of TWU.  The Courts in Ontario ruled against TWU.  Only the court decisions of BC and Ontario were appealed to the Supreme Court of Canada.

Supreme Court of Canada

The Law Society of BC (LSBC) v. TWU

In a 7-2 decision the Court ruled that the LSBC’s decision to deny accreditation to TWU was reasonable.  Justices Abella, Moldaver, Karakatsanis, Wagner, and Gascon formed the majority opinion while Chief Justice McLachlin and Justice Rowe each wrote their own concurring opinions.  Justice Brown and Cote wrote dissenting opinions.

TWU v. Law Society of Upper Canada (LSUC)

In a 7-2 decision the Court ruled that the LSUC’s decision to deny accreditation to TWU was reasonable.  Justices Abella, Moldaver, Karakatsanis, Wagner, and Gascon formed the majority opinion while Chief Justice McLachlin and Justice Rowe each wrote their own concurring opinions.  Justice Brown and Cote wrote dissenting opinions.

The decisions were mirrored decisions with virtually the same reasoning.  Below is the short review of the decision in the LSBC case.

Majority Decision

The majority ruled that the LSBC was entitled to consider TWU’s admissions policies apart from the academic qualifications and competence of individual graduates.  The law society benchers have an overarching objective of upholding and protecting the public interest in the administration of justice in reviewing the admission requirements to the profession.  The governing body of the legal profession, being a self-regulating profession, is to be given deference in carrying out the public interest.

In the majority’s view it was reasonable for the LSBC to conclude that promoting equality required equal access to the legal profession, and that supporting diversity within the bar and preventing harm to LGBTQ law students were valid means to pursue the public interest.

The majority had no problem with the LSBC holding a referendum of the members and being bound by that referendum.  Nor was LSBC required to give reasons explaining their decision. The speeches of the benchers were evidence enough to show that the law society was alive to the question of balance.  A decision will be reasonable if it reflects a proportionate balancing of the Charter protection.

The majority decided that the law society’s decision did not limit religious freedom to a significant extent because a mandatory covenant is not absolutely required to study law in a Christian environment in which people follow religious rules of conduct.  Studying law in an environment infused with the community’s religious beliefs is a preference; it is not necessary for their spiritual growth.

Maintaining diversity requires that risk of significant harm to LGBTQ people be prevented.  Public confidence in the administration of justice would be undermined by the LSBC’s decision to approve a law school that forces some to deny a crucial component of their identity in the most private and personal of spaces for three years to receive a legal education.

The majority held that where religious practice impacts others then that must be considered.  In this case the effect of the Covenant restricts the LGBTQ people who feel they have no choice but to attend TWU’s law school.  They would have to deny who they are for three years while in school.  “Being required by someone else’s religious beliefs to behave contrary to one’s sexual identity is degrading and disrespectful.”

Justice Côté and Justice Brown

The minority decision reminded the court that the only proper purpose of a law faculty approval decision is to ensure that individual graduates are fit to become members of the legal profession because they meet the minimum standards of competence and ethical conduct.  The absence of any concerns relating to the fitness of prospective TWU law graduates means that the only defensible exercise of the law societies’ statutory discretion would have been to approve TWU’s proposed law school.

Commentary

As this is a developing story, I encourage you to keep checking back to this blog site as I will give my opinion on these devastating decisions to religious freedom in Canada.  The ground for religious freedom in this country has now shifted.  Stay tuned.

You can read the full decisions here:

Law Society of British Columbia v. Trinity Western University, 2018 SCC 32

Trinity Western University v. Law Society of Upper Canada, 2018 SCC 33

[1] Trinity Western University v. College of Teachers, [2001] 1 S.C.R. 772, 2001 SCC 31, at para. 33, online: https://www.canlii.org/en/ca/scc/doc/2001/2001scc31/2001scc31.html#par33

[2] http://docs.flsc.ca/SpecialAdvisoryReportFinal.pdf

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