via CanLII – 2016 ONCA 518 (CanLII)

Trinity Western University v. The Law Society of Upper Canada, 2016 ONCA 518 (CanLII), <http://canlii.ca/t/gs9d5>, retrieved on 2016-07-02

[135]   As I have explained, TWU’s Community Covenant discriminates against members of the LGBTQ community, and the LSUC was entitled to consider whether the discriminatory policy precluded accreditation.

[136]   The American experience provides an apt example of the distinction between state action that interferes with religious belief itself and state action that denies a benefit because of the impact of that religious belief on others. In Bob Jones University v. United States, 461 U.S. 574 (1983), the Internal Revenue Service (“IRS”) took away Bob Jones University’s tax-exempt status because of its discriminatory admissions policy. The school denied admission to any black students until 1971. After 1971, black students were admitted, but only if they were married. Bob Jones University’s sponsors believed that the Bible forbids interracial dating and marriage.

[137]   Chief Justice Burger held that Bob Jones University’s sincerely held religious beliefs did not immunize it from the application of the IRS policy of denying tax-exempt status to educational institutions with discriminatory admissions policies. Integral to the Chief Justice’s opinion was the compelling government interest in eradicating racial discrimination in education. He also held that the government, by granting exemptions, was in effect making taxpayers indirect or vicarious donors to Bob Jones University. Bob Jones University’s admissions policy was at odds with the “common community conscience” and therefore the conferral of a public benefit could not be justified.

[138]   TWU, like Bob Jones University, is seeking access to a public benefit – the accreditation of its law school. The LSUC, in determining whether to confer that public benefit, must consider whether doing so would meet its statutory mandate to act in the public interest. And like in Bob Jones University, the LSUC’s decision not to accredit TWU does not prevent the practice of a religious belief itself; rather it denies a public benefit because of the impact of that religious belief on others – members of the LGBTQ community.

[139]   Fourth, I agree with the intervener Lawyers’ Rights Watch Canada that international human rights law, and especially international treaties and other documents that bind Canada, is relevant in assessing the reasonableness of the LSUC’s decision. In that vein, I note that Article 18(3) of the International Covenant on Civil and Political Rights, 19 December 1966, 999 U.N.Y.S. 171, Can. T.S. 1976, provides:

Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. [Emphasis added.]

[140]   In my view, the LSUC’s balancing in its accreditation decision was faithful to this article of an important international law document to which Canada is a signatory.

[141]   Fifth, I agree with Professor Bruce Ryder who wrote, in “State Neutrality and Religious Freedom” (2005), 29 Sup. Ct. L. Rev. (2d) 168 at 173:

Religious neutrality does not mean that the state must refuse to take positions on policy disputes that have a religious dimension. Many if not most legislative policies will accord with some religious beliefs and violate others.

[142]   Thus, the LSUC did not violate its duty of state neutrality by concluding that the public interest in ensuring equal access to the profession justified a degree of interference with the appellants’ religious freedoms. It was entitled to take a position. And, for the reasons given above, the position it took was a reasonable one.

[143]   Taking account of the extent of the impact on TWU’s freedom of religion and the LSUC’s mandate to act in the public interest, the decision to not accredit TWU represents a reasonable balance between TWU’s 2(a) right under the Charter and the LSUC’s statutory objectives. While TWU may find it more difficult to operate its law school absent accreditation by the LSUC, the LSUC’s decision does not prevent it from doing so. Instead, the decision denies a public benefit, which the LSUC has been entrusted with bestowing, based on concerns that are entirely in line with the LSUC’s pursuit of its statutory objectives.

E.           Disposition

[144]   The vote at Convocation was 28-21, with one abstention. In the context of a comprehensive and very fair decision-making process, the closeness of the vote brings to mind what the Supreme Court of Canada said in Dunsmuir, at para. 47:

[C]ertain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions.

[145]   I am satisfied that the LSUC’s decision not to accredit TWU was indeed a reasonable conclusion. I would therefore uphold the Divisional Court’s decision.

[146]   Accordingly, I would dismiss the appeal. The respondent is entitled to its costs of the appeal, if sought.

 

“J.C. MacPherson J.A.”

“I agree E.A. Cronk J.A.”

“I agree G. Pardu J.A.”

Released: June 29, 2016  “”JCM”

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