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Supreme Court of Canada Supports LGBTQ

2022-12-16

Author(s): Scott Douglas Jacobsen

Publication (Outlet/Website): Medium (Humanist Voices)

Publication Date (yyyy/mm/dd): 2018/08/23

According to Mondaq, there was a Supreme Court of Canada decision on June 15 2018 relevant to LGBTQ rights.

There was a landmark decision on the Canadian limits for their institutional religious freedoms. It amounted to the law school wanted by an Evangelical Christian University in Langley, British Columbia being rejected on legal grounds.

As reported, “The decisions concerned regulator rejections of a law school which required that students sign a covenant prohibiting any form of sexual activity outside of a marriage between a man and a woman.”

Two cases — Law Society of British Columbia v Trinity Western University and Trinity Western University v Law Society of Upper Canada — had the Supreme Court of Canada find both the Ontario and British law societies’ legal decisions to not accredit the law school came from a balanced place.

The law societies made the decision to not accredit the law school for Trinity Western University (TWU). The decision was said to have made a balance between the Law Societies’ mandates and religious freedom.

It continued, “TWU is a private post-secondary institution that provides education in an evangelical Christian environment. While LGBTQ students are not prohibited from attending TWU, all students are required to sign a covenant that prohibits any form of sexual activity outside of a marriage between a man and a woman.”

This limits students. With the covenant, the Law Societies made a vote. The vote determined a proper denial of the accreditation of the law school proposed by TWU. With extensive deliberations, it was decided that TWU was discriminatory against LGBTQ people.

“On judicial review, Ontario’s Divisional Court held that the Law Society of Ontario had properly exercised its statutory mandate to act in the public interest in refusing to grant accreditation to TWU’s proposed law school because its mandatory covenant was discriminatory,” the reportage stated.

The denial of the accreditation, apparently, violated the Section 2(a) religious right found in the Charter of Rights and Freedoms. The court was found to have made a proportionate and balanced decision on the equality rights and the Law Society of Ontario’s public interest mandate.

“In contrast, the British Columbia Court of Appeal reversed the Law Society of British Columbia’s decision not to approve TWU’s proposed law school. The court instead found that the decision’s effect on TWU’s religious rights was severe compared to the minimal impact on Law Society of British Columbia’s statutory public interest objectives,” the article said.

The appeal was then made to the SCC. The SCC made a staggering 7–2 decision to deny accreditation to the TWU law school. Most of the SCC found that the Law Societies violated the communal religious freedom of TWU.

However, with the Charter right invoked for the legal societies’ decision, the SCC used a decision-making framework from some previous decisions. It was the Dore/Loyola framework. It was meant for the balance of the Charter rights and the statutory objectives.

Reportage continued, “The Supreme Court held that the Law Societies had balanced competing interests reasonably and proportionately. As with many administrative decisions, the decision under review did not need to be correct; it was only required to fall within a range of possible reasonable outcomes.”

Two sides were present. The SCC ratiocinated that the religious rights of the TWU community were not limited based on the mandatory covenant because of this not being a requirement of the Christian environment.

The other was that the statutory public interest mandate is to prevent harm to LGBTQ students of law. It means a diverse bar with equal access and opportunities. The decision highlighted the balance between public interest and religious rights.

“In a minority concurring decision, Justice Rowe found that TWU’s religious rights had not been engaged by the Law Societies’ decisions. He argued that while religious rights protected individuals and faith communities’ beliefs and practices,” the article explained, “it did not protect their attempts to impose adherence to others who do not share their beliefs.[9] With no Charter right balanced against the Law Societies’ public interest mandate, the decision to deny TWU accreditation was entirely reasonable.”

There was another minority decision happening concomitantly. The Chief Justice McLachlin stated that the Dore/Loyola framework shall be applied. It was commentary from McLachlin on the freedom of association and the freedom of expression.

“She ultimately agreed, however, that the decision of the Law Societies was reasonable as they had a heightened duty to maintain equality and avoid condoning discrimination,” the article stated, “In dissent, Justice Côté and Justice Brown argued that the Law Societies’ statutory mandates did not include the governance of law schools.”

There was further commentary by Justice Côté and Justice Brown about the mandatory covenant not being discriminatory. Their argument was that the covenant did not target LGBTQ people in particular and, therefore, this did not comprise any form of standard discrimination.

It, on the implications, continued to state, “The decision serves as a high-profile example of judicial review of administrative decisions engaging Charter rights. The Supreme Court declined to depart from the Dore/Loyola framework, despite criticism in some circles.”

The SCC made balance with the statutory objectives and the religious rights within the context of the Dore/Loyola framework. The decision may show SCC deference to the statutory mandates of administrative bodies.

“The impact of these decisions extends beyond adjudging the quality of various legal tests. The number of interveners (23) across religious and human rights spectra illustrate how personally important these decisions were to groups across Canada,” the article concluded, “As noted above, the Supreme Court focused on interests of diversity and equal access to the legal profession in reaching its conclusions. Many will view these decisions favourably as a continuation of the use of the Charter to advance the rights of LGBTQ Canadian citizens.”

License

In-Sight Publishing by Scott Douglas Jacobsen is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License. Based on a work at www.in-sightpublishing.com.

Copyright

© Scott Douglas Jacobsen and In-Sight Publishing 2012-Present. Unauthorized use and/or duplication of this material without express and written permission from this site’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Scott Douglas Jacobsen and In-Sight Publishing with appropriate and specific direction to the original content. All interviewees and authors co-copyright their material and may disseminate for their independent purposes.

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