Today Chief Justice Hinkson quashed the decision of the Benchers of the Law Society of British Columbia to submit the question as to whether to accredit Trinity Western University’s proposed law school or not to a referendum of the members after previously having decided to accredit the proposed law school. He found that the Benchers’ later decision was improper, was an improper fettering of the Benchers’ discretion and did not involve a proper balancing of the Charter interests as had been done by the Benchers in their earlier decision. He restored their earlier decision to accredit the proposed law school. His ruling can be found at Trinity Western University v. Law Society of British Columbia, 2015 BCSC 2326. I will not go through the legal analysis in this post, at least not today. I will say, however, that this is obviously yet just one more step in the multi-province, multi-action process that will eventually culminate in the Supreme Court of Canada having to review its earlier decision in Trinity Western University v. British Columbia College of Teachers, 2001 SCC 31.
(Photograph from trunews.com)
Last week, Justice Jamie Campbell of the Nova Scotia Supreme Court delivered a scathing indictment of the decision of the Nova Scotia Barristers’ Society (the “Society”) to recognize law degrees for the proposed law school at Trinity Western University (“TWU”) only if TWU changes its “community covenant” against sex outside the confines of a legal marriage between a man and woman. The focus of the Society’s concerns is that the Community Covenant would have the effect of discriminating against members of the LGBT community. His judgment (Trinity Western University v. Nova Scotia Barristers’ Society, 2015 NSSC 25) is the first of what will no doubt be a series of judicial pronouncements on the various provincial law societies’ decision to accredit or not to accredit TWU’s proposed law school. Challenges in British Columbia and Ontario are also well on their way to being heard. Yet again, the collision between equality rights and freedom of religion finds itself on the center stage of Canada’s judicial arenas. The last time this issue went to the Supreme Court of Canada was in 2001 in yet another TWU case, Trinity Western University v. British Columbia College of Teachers, 2001 SCC 31. While the Court held that the Charter was not directly applicable in that case, it did determine that any concerns of the College of Teachers respecting the discriminatory effects against homosexuals were to be subject to the respect for the principles of the religious faith professed by TWU. Justice Campbell does not consider that the time is nigh for that 2001 judicial determination to change.