Doré, equality values, and TWU

  • August 22, 2017
  • Jack Townsend

In 2014, the Council of the Nova Scotia Barristers' Society voted to conditionally accredit degrees from Trinity Western University's proposed law school. The condition imposed by Council related to a provision in a "community covenant" – a contract which must be signed by all students seeking admission to TWU – which prohibits "sexual intimacy that violates the sacredness of marriage between a man and a woman." Put slightly differently, gays, lesbians, and bisexuals need not apply to TWU, unless they are prepared to sign a document which characterizes their sexual orientation as "vile" and "unnatural," and agree to forgo any form of intimacy with a same-gender spouse or partner during their time at the school. Council therefore agreed to accredit TWU law degrees, provided TWU either amended the covenant to remove this prohibition, or made its signature a purely voluntary measure, as opposed to a pre-condition to admission.

TWU applied for judicial review of Council's decision, and the matter eventually made its way to the Nova Scotia Court of Appeal in April 2016. I was fortunate enough to act as pro bono counsel for the Schulich School of Law OUTLaw Society, one of the intervenors on the appeal. I therefore spent much of my spare time during the winter of 2015-16 reading submissions filed by TWU and its allies in the Nova Scotia proceedings, as well as in the related cases in Ontario and British Columbia.

As a gay man, I found a number of TWU's arguments personally vexing; see, for example, its continued efforts to draw a distinction between sexual orientation and sexual behaviour, and invoke the "love the sinner, hate the sin" argument. However, I found another argument to be particularly surprising in my capacity as a self-professed administrative law junkie. The argument was essentially this: because TWU is not subject to the Charter, the covenant does not contravene any Section 15 equality rights, with the result that there was no real issue of LGBTQ discrimination that could be considered by Council.

I was surprised by this argument because it was, in my view, effectively rejected by the Supreme Court of Canada in two of its recent administrative law decisions: Doré v Barreau du Quebec, 2012 SCC 12; and Loyola High School v Quebec (Attorney General), 2015 SCC 12.

At issue in Doré was whether a decision to discipline a lawyer for a letter he wrote to a judge violated his right to freedom of expression. In resolving this issue, the court had to determine how discretionary administrative decisions of this nature should be reviewed: should they be assessed for reasonableness, within the framework set out in Dunsmuir v New Brunswick, 2008 SCC 9; or should they be subjected to a full Oakes analysis under Section 1 of the Charter?

Justice Abella (for the Court) rejected a traditional Oakes analysis, and ultimately embraced a "richer conception of administrative law" (para. 35), one which incorporates the spirit of an Oakes review – namely, a concern for proportionality – into the reasonableness analysis. This approach takes into account that administrative bodies typically have greater experience and expertise in weighing competing considerations – including Charter values – when exercising discretionary powers under their home statutes. Under this approach, "administrative bodies are empowered, and indeed required, to consider Charter values within their scope of expertise," with the Charter serving as a reminder that certain values are fundamental and not to be violated lightly (para. 35). Accordingly, the task of an administrative decision-maker is to proportionately balance any relevant Charter values with the objectives of their enabling legislation. As long as that balancing is proportionate, it will be reasonable, and survive scrutiny on judicial review.

Justice Abella's use of the word "values" in her reasons is interesting. It seems clear that Gilles Doré had an enforceable Charter right to freedom of expression. Why, then, did Justice Abella refer to Charter values, and what message did she intend to convey with her use of this term? Did she view a Charter "right" as being synonymous with a Charter "value" for purposes of the Doré analysis, or did she use the word "value" to refer to some broader concept than a black-and-white, legally enforceable "right"?

Her Ladyship clearly answered this question in her majority reasons in Loyola. Loyola involved an application by a private Catholic school for judicial review of a refusal by the Quebec Minister of Education to exempt it from having to teach a secular ethics and religious culture program.

Loyola argued that the Minister's decision violated its right to freedom of religion. Accordingly, an issue arose as to whether Loyola, as a body corporate, could invoke this Charter right. Justice Abella explained that it was not necessary to address this issue, since the Minister was required to exercise her discretion in a manner that proportionately balanced the Charter protections at stake – values and rights – with her statutory mandate. That is, a decision that Loyola had no enforceable right to freedom of religion would not have been fatal to its application, because the facts of the case required a consideration of the underlying values of religious freedom.

Her Ladyship went on to explain the difference between Charter rights and Charter values, noting (at para. 36) that "the purpose of a constitutional right is the realization of its constitutional values," and that Charter values "underpin each right and give it meaning." This definition is consistent with comments in, for example, Hill v Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, at paras. 95-98, and M. (A.) v Ryan, [1997] 1 S.C.R. 157, at paras. 22-23, where Charter values were described as overarching principles that the rights in the Charter enshrine, against which common law doctrines (like the law of defamation) can be balanced and re-assessed.

So where does this leave us for purposes of the TWU litigation?

It cannot be seriously disputed that the effect of the community covenant is to discriminate against gays, lesbians, and bisexuals. As the Ontario Divisional Court noted in its decision in this matter, the covenant requires an LGB student to "sign a document in which they agree to essentially bury a crucial component of their very identity, by forsaking any form of intimacy with those persons with whom they would wish to form a relationship" in order to obtain a much-coveted legal education (2015 ONSC 4250, para. 113). As the Ontario Court of Appeal noted, this "exacts a price on LGBTQ students," as they would not be tempted to apply for admission and could only sign the covenant at a considerable personal cost, with the result that it "is deeply discriminatory to the LGBTQ community, and it hurts" (2016 ONCA 518, paras. 116-119).

Thus, the Charter values which underlie the equality guarantee in Section 15 – namely, those relating to the promotion of substantive equality, the remediation of the historical prejudice and disadvantage, and respect for human dignity – are clearly implicated by an application by TWU for accreditation of its law degrees. Accordingly, irrespective of the fact that TWU is not subject to the Charter and that the covenant technically does not breach anyone's Section 15 rights, the framework established in DorĂ© and Loyola required NSBS Council (as an administrative decision-maker, drawing its powers from a broad grant of discretionary authority to regulate the legal profession in the public interest) to consider these values in considering TWU's application.

Therefore, what matters is not whether TWU infringed an enforceable equality right, or whether a person discriminated against as a result of the covenant would have a legal remedy against TWU. Rather, the real issue is how the covenant's inconsistency with the aspirational values and principles that underlie Section 15 should have factored into Council's decision-making process, and weighed against TWU's religion-based concerns and the objectives of the Nova Scotia Legal Profession Act. Any argument that TWU is not subject to the equality provisions of the Charter, or that the discrimination effected by the covenant is somehow “lawful” or not illegal, simply distracts from this core issue.

 Jack Townsend is an associate with Cox & Palmer in Halifax

Note: CBA has been granted leave to intervene in the TWU case that will be heard before the Supreme Court late this fall.