Photo from flickr by Tori Rector (CC BY-SA 2.0)

Ontario court upholds law school ban

Superior Court rules against Trinity Western’s community covenant

By Craig Macartney and ChristianWeek Senior Correspondent | July 13, 2015

TORONTO, ON—Trinity Western University’s (TWU) proposed law school faced a major legal setback when the Ontario Superior Court upheld the Law Society of Upper Canada’s (LSUC) decision not to accredit the prospective law school’s grads. The July 2 ruling significantly diverges from all previous legal precedents involving TWU, including a 2001 Supreme Court decision specifically involving the same community covenant at the heart of current hearings.

TWU’s community covenant includes a section which asks students to agree to abstain from sexual intimacy outside of heterosexual marriage. That clause has been at issue in the ongoing court battles.

“While we wish the decision were otherwise, we are very encouraged the [Superior Court] recognized that [the LSUC] are infringing on our religious freedoms,” says Guy Saffold, special assistant to the president of TWU. “That’s critical in this case, but we believe they didn’t do the correct balancing of rights. That will be the basis of our appeal.”

While the court’s 42-page decision clearly states that LSUC’s decision “amount[s] to an infringement of [TWU’s] rights to freedom of religion,” it concludes that LSUC fairly balances this against equality rights.

The decision recognizes that the school’s community covenant prohibits any harassment or discrimination, including against homosexuals. Yet it also states that the covenant discriminates against women (although it’s not explained how), those who choose to live common-law, and those with other religious beliefs.

“I think what this shows is this issue ought to be of very great concern to Christians and ministries across the country,” says Saffold. “The outcome is going to have a very profound effect on the future of religious freedom in Canada.”

Safford clarifies that TWU doesn’t exclude those with different views and that the covenant is only applicable while students are studying at TWU.

“It makes it clear we’re not asking people to adopt these beliefs. As they are joining a religious community, it’s asking them to respect these standards, during the limited period of time they are part of this community.”

Of note in this case is that Peter MacKay, Attorney General of Canada, intervened on TWU’s behalf. In his submission to the court, he argues that LSUC's decision “was not reasonable.” He explains that LSUC can address instances of individual lawyers discriminating, rather than banning all TWU students.

Despite the setback of the recent ruling, Safford says he remains hopeful that the issue will ultimately be settled in TWU’s favour.

Prior to the Ontario decision, he says the issue “was tested three times in the late 90s and in 2001 the Supreme Court looked at our community covenant in connection with our school of education. All judgements were in favour of TWU.”

Saffold also highlights that of all the provinces, only three barrister societies refused them accreditation. While the case is still pending in BC, the Superior Court of Nova Scotia, in January, ruled in favour of TWU, ordering the law society to pay TWU $70,000 in legal fees.

The Evangelical Fellowship of Canada (EFC) views the barrister society decisions as a targeted attempt to interfere with lawyers of a Christian faith.

“The three law societies are trying to impose their morality on Trinity Western University using their authority to regulate lawyers,” says EFC president Bruce Clemenger. “As a matter of law it should be clear that TWU’s law school should be approved. The Law Society in BC, for example, sought legal opinions and all agreed that Trinity Western’s law school should be approved; it was the individual lawyers who forced the Law Society to change its position.”

LSUC would not comment to ChristianWeek about its decision or the legal opinions it had obtained.

Clemenger says this is part of broader trend emerging in Canadian society.

“It’s akin to the religious tests of old, where people were deemed unsuitable to hold public office if they did not subscribe to the dominant religious beliefs. Today, a person’s views on abortion and same-sex marriage are considered by some to be litmus tests for public service.”

A recent communiqué from Rod Taylor, leader of the Christian Heritage Party of Canada, carries a similar warning.

“The courts seem to be in free fall, wantonly granting special privilege to those with whom they agree and punishing those with whom they disagree,” he writes. “The [Ontario Superior Court] ruling itself shows the need to have an alternative law school, where future lawyers can learn to apply Canadian law, with its inherited biblical foundations, free from the taint of political correctness.”

Meanwhile, TWU’s court battles carry on and will likely end up, once again, in the Supreme Court.

“The crux of the case will be what happens here in British Columbia,” says Saffold. “It’s our home province, and it’s where we need the Ministry of Education to grant approval for our program. So the one to really watch will be the one that happens [in August].”