“It’s effectively a relegation of religious freedom and conscience rights to the private sphere,” said Phil Horgan, president of the Catholic Civil Rights League.

In a June 15 ruling, Canada’s highest court affirmed by a pair of 7-2 votes the right of law societies in Ontario and British Columbia to refuse to accredit graduates of the proposed law school of TWU, a privately funded Christian university in Langley, B.C. At issue was TWU’s mandatory covenant for students and faculty which condones sexual activity only between men and women who are in a traditional marriage.

The court’s main decision ruled that the covenant discriminates against non-heterosexual students by denying them equal access to the law profession. Provincial law societies have a public-interest mandate to ensure equal access to the profession and therefore they are entitled to reject TWU graduates, the court ruled.

“It’s frightening how little understanding the Supreme Court has of religious freedom and its importance,” said John Carpay, president of the Justice Centre for Constitutional Freedoms. 

“It’s absolutely frightening.”

Canada’s former Ambassador of Religious Freedom Andrew Bennett called it “a very disconcerting decision.”

“Clearly they are stating that as long as you live your faith privately and within the four walls of your place of worship, that’s acceptable,” he said. “But any expression of belief, any association that in its very essence asserts a particular belief, that’s unacceptable.”

Archbishop Michael Miller of Vancouver, whose diocese includes Langley, B.C., said he was “saddened” by the decision “with its potential to undermine freedom of religion, conscience and association in Canada.”

“With this decision, the court has moved away from our historic tradition of reconciling competing rights, and closer to a prioritization of rights, essentially ruling some are more important than others,” Miller said.

The Archdiocese of Vancouver intervened in the case jointly with the Catholic Civil Rights League (CCRL) and the Faith and Freedom Alliance.

Constitutional lawyer Iain Benson called it “a terrible, terrible decision.” 

The Supreme Court has basically ruled that the standard religious position on sexual morality is in conflict with what’s in the public interest, and that makes this “a very dark day in Canadian legal history,” Benson said.

“That is extraordinarily serious,” he said. “It has the potential to open up whole swathes of Canadian culture to scrutiny under so-called Charter values.”

Plans for a TWU law school are now on hold and religious leaders are examining how to respond to the ruling as other cases involving religious freedom head towards the courts. 

There are concerns that the TWU decision could negatively impact a lawsuit launched by the Christian Medical and Dental Society (CMDS) of Canada against the College of Physicians and Surgeons of Ontario. The CMDS is contesting a policy that forces doctors to make effective referrals in cases of euthanasia or other treatments doctors might find morally objectionable. Two other lawsuits are in the works opposing the Canada Summer Jobs attestation which affirms government policy on abortion.

Horgan said the court ruling against TWU in effect gives a blessing to administrative authorities to claim decisions are in the “public interest” based on “amorphous and undefined notions of Charter values.” This “effectively allows further state actors to make it up as they go along,” he said.

The Supreme Court used to be where fundamental freedoms in the Charter were recognized within “a genuine, authentic pluralistic understanding of our constitutional history,” Horgan said. “That arrangement has been severed.”

He believes the decision opens the door for others to use a Charter argument to subjugate religious freedom rights.

“This is certainly a disappointing outcome and one for which the ramifications are yet to be understood,” he said.

William Sammon, who has represented the Canadian Conference of Catholic Bishops before the Supreme Court, said “we’re simply stuck” with the decision.

Speaking for himself and not the CCCB, Sammon said perhaps it can be argued that the decision narrowly applies to law societies and the unique role they play in the administration of justice, and does not apply to other regulatory bodies.

“The way the religious communities have to look going forward is how to limit the damage,” he said.

It was TWU’s stance on marriage “that gave everybody a problem, including the justices of the Supreme Court,” said Sammon. 

“But the belief by evangelical Christians in their religious definition of marriage is part of who they are. To treat that belief as simply a preference or as peripheral is certainly inconsistent with previous decisions, I would argue, by the Supreme Court itself.”

TWU vs. law societies: A timeline

June 2012:  Trinity Western submits School of Law proposal to B.C.’s Minister of Advanced Education for consent to offer degrees, and to the Federation of Law Societies of Canada (FLSC) for accreditation of the program. The university’s “community covenant” includes forbidding students from having sexual relations outside of the confines of heterosexual marriage.

December 2013:  TWU receives approval from FLSC and the B.C. Ministry of Advanced Education.

March-April 2014: Individual law societies review the FLSC approval, citing concerns that covenant discriminates against LGBTQ people. The School of Law is approved in B.C., Alberta, Saskatchewan, New Brunswick, Prince Edward Island, and Yukon, but rejected in Ontario and Nova Scotia.

October 2014: B.C. law society reverses its approval, followed two months later by B.C. Minister of Advanced Education.

January 2015: Nova Scotia Supreme Court rules in favour of TWU, saying the school is not subject to the province’s Human Rights Act.

June 2015: Ontario court upholds law society’s denial of accreditation, saying covenant is discriminatory.

December 2015: B.C. court upholds TWU’s right to operate a law school. Law society appeals.

June-July 2016: TWU loses appeal against law society in Ontario; wins appeal in Nova Scotia.

June 2018: Supreme Court of Canada rules that Ontario and B.C. law societies’ decision to deny accreditation to TWU graduates is reasonable in a decison pitting religious freedom against equality rights. TWU says law school proposal is on hold.