The highest court in the land has overturned a B.C. Court of Appeal ruling on an issue of particular interest to LGBT people and the legal profession.
With only two of nine judges dissenting, the Supreme Court of Canada has upheld a Law Society of B.C. appeal in a long-running legal battle with Trinity Western University.
The law society refused to approve the Langley Christian postsecondary institution's proposed law school following a vote of lawyers across the province in 2014.
Lawyers objected to the Trinity Western University's code of conduct, which bans “sexual intimacy that violates the sacredness of marriage between a man and a woman”.
Trinity Western University and Brayden Volkenant filed a judicial review of the law society's decision, arguing that it violated section 2 (a) of the Canadian Charter of Rights and Freedoms protecting freedom of conscience and religion.
Justices Rosalie Abella, Michael Moldaver, Andromache Karakatsanis, Clément Gascon, and Sheilah Martin rejected that assertion.
Instead, they ruled that the university's covenant as a condition of admission "effectively imposes inequitable barriers on entry to the school and ultimately, inequitable barriers on entry to the profession".
"It was reasonable for the LSBC to conclude that promoting equality by ensuring equal access to the legal profession, supporting diversity within the bar, and preventing harm to LGBTQ law students were valid means to pursue the public interest," concluded these five justices. "The LSBC has an overarching interest in protecting the values of equality and human rights in carrying out its functions.
"Approving or facilitating inequitable barriers to the profession could undermine public confidence in the LSBC’s ability to regulate in the public interest."
In concluding that the law society's decision was reasonable, the five justices used the words "minor significance" to describe the limitation on the Christian university's charter rights.
McLachlin argued religious infringement was not minor
Now-retired chief justice Beverley McLachlin wrote separate reasons why she also felt the appeal should be upheld.
Unlike the five justices, she maintained that the denial of the university community's religious freedom and associated rights "are not of minor significance".
However, she still concluded that the law society's action was justifiable under section 1 of the charter, which permits "reasonable limits" on fundamental freedoms if they "can be demonstrably justified in a free and democratic society".
"If the community wishes to operate a law school, it must relinquish the mandatory Covenant it says is core to its religious beliefs, with the attendant ramifications on religious practices," McLachlin wrote. "However, the LSBC cannot condone a practice that discriminates by imposing burdens on LGBTQ people on the basis of sexual orientation, with negative consequences for the LGBTQ community, diversity and the enhancement of equality in the profession.
"It was faced with an either‑or decision on which compromise was impossible—either allow the mandatory Covenant in TWU’s proposal to stand, and thereby condone unequal treatment of LGBTQ people, or deny accreditation and limit TWU’s religious practices," McLachlin continued. "Ultimately, the LSBC concluded that the imperative of refusing to condone discrimination and unequal treatment on the basis of sexual orientation outweighed TWU’s claims to freedom of religion.
"This decision of the LSBC represents a proportionate balancing of freedom of religion, on the one hand, and the avoidance of discrimination, on the other. The decision was therefore reasonable."
Justice Malcolm Rowe also wrote separate reasons upholding the law society's appeal, concluding that its actions were reasonable under the deference accorded to it under the Legal Profession Act.
"It was also open to for the LSBC to conclude that its mandate included promoting equal access to the legal profession, supporting diversity within the bar and preventing harm to LGBTQ law students," Rowe wrote. "It was in this context that the LSBC declined to accredit the proposed law school. This decision falls within a range of possible, acceptable outcomes that are defensible in respect of the facts and law."
Two justices sided with B.C. Court of Appeal ruling
Former prime minister Stephen Harper's two final appointees to the Supreme Court of Canada, justices Russell Brown and Suzanne Côté, dissented from the seven other justices, arguing that the law society's rules did not give it authority to regulate law schools.
"Under the LSBC’s enabling statute, 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 minimum standards of competence and ethical conduct," Côté and Brown stated in their reasons. "Given the absence of any concerns relating to the fitness of prospective TWU law graduates, the only defensible exercise of the LSBC’s statutory discretion would have been to approve TWU’s proposed law school."
By the same margin, the judges dismissed the university's appeal of an Ontario Court of Appeal ruling against the Law Society of Upper Canada.
It resolves the contradiction that occurred between the highest courts in two provinces, with the Ontario superior court supporting its province's law society's ban and B.C.'s superior court rejecting its province's law society ban.
In 2014, the B.C. Law Society benchers voted to approve the new law school. That was met with outrage in the legal community, which easily mobilized enough signatures to force a referendum of the membership.
The members voted against accrediting the proposed Trinity Western University law school, but that was struck down by the B.C. Supreme Court.
The B.C. Court of Appeal dismissed the law society's appeal in 2016.
Egan and Nesbit's shadow loomed large over legal rights
The Supreme Court of Canada ruling has come in the same week that Historica Canada released a Heritage Minute about B.C. LGBT advocate Jim Egan.
Egan and his life partner, James Nesbit, went to the Supreme Court of Canada in a fight over pension benefits for same-sex couples.
They lost their case in 1995.
However, they won a landmark recognition that section 15 of the Canadian Charter of Rights and Freedoms also included equality on the basis of sexual orientation, even thought those words don't appear in the legislation.
This is what section 15 states: Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. [Italics added.]
In the Egan case, the court concluded: "It is plain from the language of s. 15 that its fundamental purpose is to guarantee to all individuals a certain kind of equality: equality without discrimination. By implication, where 'discrimination' is not present, then the Charter guarantee of equality is satisfied. The nine 'grounds' enumerated after this basic guarantee of freedom from discrimination are particular applications and illustrations of the ambit of s. 15. They are not the guarantee itself."
Today's ruling in the Trinity case was rooted in the the public's recognition that section 15 applies to sexual orientation. And that only came about as a result of Egan's lifelong determination to achieve equal legal rights for the LGBT community.