Law Society of British Columbia Appellant v. Trinity Western University and Brayden Volkenant, 2018 SCC 32

SUPREME COURT OF CANADA Citation: Law Society of British Columbia v.

Trinity Western University, 2018 SCC 32, [2018] 2 S.C.R. 293 Appeal Heard: November 30, December 1, 2017 Judgment Rendered: June 15, 2018 Docket: 37318 Between: Law Society of British Columbia Appellant and Trinity Western University and Brayden Volkenant Respondents - and - Lawyers’ Rights Watch Canada, National Coalition of Catholic School Trustees’ Associations, International Coalition of Professors of Law, Christian Legal Fellowship, Canadian Bar Association, Advocates’ Society, Association for Reformed Political Action (ARPA) Canada, Canadian Council of Christian Charities, Canadian Conference of Catholic Bishops, Canadian Association of University Teachers, Law Students’ Society of Ontario, Seventh-day Adventist Church in Canada, BC LGBTQ Coalition, Evangelical Fellowship of Canada, Christian Higher Education Canada, British Columbia Humanist Association, Egale Canada Human Rights Trust, Faith, Fealty & Creed Society, Roman Catholic Archdiocese of Vancouver, Catholic Civil Rights League, Faith and Freedom Alliance, Canadian Secular Alliance, West Coast Women’s Legal Education and Action Fund and World Sikh Organization of Canada Interveners Coram: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ.

Joint Reasons for Judgment: (paras. 1 to 106) Abella, Moldaver, Karakatsanis, Wagner and Gascon JJ.

Concurring Reasons: (paras. 107 to 151) McLachlin C.J. Reasons Concurring in the Result: (paras. 152 to 259) Rowe J. Joint Dissenting Reasons: (paras. 260 to 342) Côté and Brown JJ. Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, [2018] 2 S.C.R. 293 Law Society of British Columbia Appellant v.

Trinity Western University and Brayden Volkenant Respondents and Lawyers’ Rights Watch Canada, National Coalition of Catholic School Trustees’ Associations, International Coalition of Professors of Law, Christian Legal Fellowship, Canadian Bar Association, Advocates’ Society, Association for Reformed Political Action (ARPA) Canada, Canadian Council of Christian Charities, Canadian Conference of Catholic Bishops, Canadian Association of University Teachers, Law Students’ Society of Ontario, Seventh-day Adventist Church in Canada, BC LGBTQ Coalition, Evangelical Fellowship of Canada, Christian Higher Education Canada, British Columbia Humanist Association, Egale Canada Human Rights Trust, Faith, Fealty & Creed Society, Roman Catholic Archdiocese of Vancouver, Catholic Civil Rights League, Faith and Freedom Alliance, Canadian Secular Alliance, West Coast Women’s Legal Education and Action Fund and

World Sikh Organization of Canada Interveners Indexed as: Law Society of British Columbia v. Trinity Western University 2018 SCC 32 File No.: 37318. 2017: November 30, December 1; 2018: June 15.

Present: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ. on appeal from the court of appeal for british columbia Law of professions — Barristers and solicitors — Law society — Approval of law school — Law society denying approval to proposed law school with mandatory covenant prohibiting sexual intimacy except between married heterosexual couples — Whether law society entitled under its enabling statute to consider admissions policy and to hold referendum of members in deciding whether to approve proposed law school — Law Society Rules, r. 2-27 — Legal Profession Act, S.B.C. 1998, c. 9, s. 13 .

Administrative law — Judicial review — Standard of review — Law society — Administrative decision engaging Charter protections — Law society denying approval to proposed law school with mandatory religiously-based covenant — Application for judicial review challenging decision on basis that it violated religious rights — Whether law society’s decision engages Charter by limiting freedom of religion — If so, whether decision proportionately balanced limitation on freedom of religion with law society’s statutory objectives — Whether law society’s decision reasonable — Application of Doré/Loyola framework — Canadian Charter of Rights and Freedoms, ss. 1 , 2(a) — Legal Profession Act, S.B.C. 1998, c. 9, s. 3 .

Trinity Western University (“TWU”) is an evangelical Christian postsecondary institution that seeks to open a law school that requires its students and faculty to adhere to a religiously-based code of conduct, the Community Covenant Agreement (Covenant), which prohibits “sexual intimacy that violates the sacredness of marriage between a man and a woman”. The Covenant would prohibit the conduct throughout the three years of law school, even when students are off-campus in the privacy of their own homes. The Law Society of British Columbia (“LSBC”) is the regulator of the legal profession in British Columbia.

The Benchers of the LSBC voted to hold a referendum of its members on the issue of the approval of TWU’s proposed law school and agreed to be bound by the results. The members voted to implement a resolution declaring that TWU’s proposed law school was not an approved faculty of law because of its mandatory Covenant. The Benchers therefore passed the resolution.

TWU and V, a graduate of TWU’s undergraduate program who would have chosen to attend TWU’s proposed law school, successfully brought judicial review proceedings to the Supreme Court of British Columbia, arguing that the LSBC’s decision not to approve TWU’s proposed law school violated religious rights protected by s. 2(

a) of the Charter . The Court of Appeal dismissed the appeal. Held (Côté and Brown JJ. dissenting): The appeal should be allowed. The resolution of the LSBC to declare that TWU’s proposed law school not be approved is restored. Per Abella, Moldaver, Karakatsanis, Wagner and Gascon JJ.: The LSBC’s decision not to approve TWU’s proposed law school represents a proportionate balance between the limitation on the religious protections under s. 2(

a) of the Charter and the statutory objectives that the LSBC sought to pursue. The LSBC’s decision was therefore reasonable. The LSBC was entitled under its enabling statute to consider TWU’s admissions policies, apart from the academic qualifications and competence of individual graduates, in determining whether to approve TWU’s proposed law school under Rule 2 -27 of the Law Society Rules .

The LSBC’s enabling statute requires the Benchers to consider the overarching objective of upholding and protecting the public interest in the administration of justice in determining the requirements for admission to the profession, including whether to approve a particular law school. As the governing body of a self-regulating profession, the LSBC’s determination of the manner in which its broad public interest mandate will best be furthered is entitled to deference. The public interest is a broad concept and what it requires will depend on the particular context.

The LSBC in this case interpreted its duty to uphold and protect the public interest as precluding the approval of TWU’s proposed law school because the requirement that students sign the 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.

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. Also, the LSBC Benchers were entitled to hold a referendum of members on the question of TWU’s proposed law school.

Section 13 of the Legal Profession Act does not limit the circumstances in which the Benchers can elect to be bound to implement the results of such a referendum. The legal profession in British Columbia is self-governing; the majority of Benchers are elected by the LSBC membership and make decisions on behalf of the LSBC as a whole. It is consistent with this statutory scheme that the Benchers may decide that certain decisions they take would benefit from the guidance or support of the membership as a whole.

This is no less the case where a decision implicates the Charter and raises questions as to the best means to pursue the LSBC’s statutory objectives. The LSBC was not required to give reasons formally explaining why the decision to refuse to approve TWU’s proposed law school amounted to a proportionate balancing of freedom of religion with the LSBC’s statutory objectives. Not all administrative decision-making requires the same procedure. In this context, the vast majority of Benchers serve as elected representatives, and reached their decision by a majority vote.

It is clear from the speeches that the LSBC Benchers made during their meetings that they were alive to the question of the balance to be struck. Reviewing courts may, if they find it necessary, look to the record for the purpose of assessing the reasonableness of the outcome.

Administrative decisions that engage the Charter are reviewed based on the framework set out in the binding precedents of the Court of Dor é v. Barreau du Québec , 2012 SCC 12 , [2012] 1 S.C.R. 395 , and Loyola High School v. Quebec (Attorney General) , 2015 SCC 12 , [2015] 1 S.C.R. 613.

Under the Doré / Loyola framework, if the administrative decision engages the Charter by limiting its protections — both rights and values — the question becomes whether, in assessing the impact of the relevant Charter protection and given the nature of the decision and the statutory and factual contexts, the decision reflects a proportionate balancing of the Charter protections at play and the relevant statutory mandate.

Section 2(

a) of the Charter is limited, or engaged, when the claimant demonstrates that he or she sincerely believes in a practice or belief that has a nexus with religion, and that the impugned state conduct interferes, in a manner that is more than trivial, with his or her ability to act in accordance with that practice or belief. If s. 2(

a) is not engaged, there is nothing to balance. In this case, it is clear from the record that evangelical members of the TWU community sincerely believe that studying in an environment defined by religious beliefs in which members follow particular religious rules of conduct contributes to their spiritual development. Precluding the approval of TWU’s law school governed by the mandatory Covenant limits the ability of members of the TWU community to enhance their spiritual development through studying law in an environment defined by their religious beliefs.

Accordingly, their religious rights were limited, and therefore engaged, by the LSBC’s decision. Where an administrative decision engages a Charter protection, the reviewing court should apply a robust proportionality analysis consistent with administrative law principles, instead of a literal s. 1 analysis. The administrative decision will be reasonable if it reflects a proportionate balancing of the Charter protection with the relevant statutory mandate.

This approach recognizes that an administrative decision-maker is generally in the best position to weigh the Charter protections with his or her statutory mandate in light of the specific facts of the case. It follows that deference is warranted when a reviewing court is determining whether the decision reflects a proportionate balance. For a decision to be proportionate, it is not enough for the decision-maker to simply balance the statutory objectives with the Charter protection in making its decision.

The reviewing court must consider whether there were other reasonable possibilities that would give effect to Charter protections more fully in light of the objectives. The reviewing court must also consider how substantial the limitation on the Charter protection was compared to the benefits to the furtherance of the statutory objectives in this context. The LSBC was faced with only two options — to approve or reject TWU’s proposed law school.

Given the LSBC’s statutory mandate, approving TWU’s proposed law school would not have advanced the relevant statutory objectives, and therefore was not a reasonable possibility that would give effect to Charter protections more fully in light of the statutory objectives. The LSBC’s decision also reasonably balanced the severity of the interference against the benefits to its statutory objectives.

The LSBC’s decision did not limit religious freedom to a significant extent because a mandatory covenant is not absolutely required to study law in a Christian environment in which people follow certain religious rules of conduct, and studying law in an environment infused with the community’s religious beliefs is preferred, not necessary, for their spiritual growth.

On the other side of the scale, it is clear that the decision not to approve TWU’s proposed law school significantly advanced the LSBC’s statutory objectives by maintaining equal access to and diversity in the legal profession and by preventing the risk of significant harm to LGBTQ people. The public confidence in the administration of justice could be undermined by the LSBC’s decision to approve a law school that forces some to deny a crucial component of their identity in the most private and personal of spaces for three years in order to receive a legal education.

Freedom of religion protects the rights of religious adherents to hold and express beliefs through both individual and communal practices. Where a religious practice impacts others, however, this can be taken into account at the balancing stage. In this case, the effect of the mandatory Covenant is to restrict the conduct of others. The LSBC’s decision prevents the risk of significant harm to LGBTQ people who feel they have no choice but to attend TWU’s proposed law school. These individuals would have to deny who they are for three years to receive a legal education.

Being required by someone else’s religious beliefs to behave contrary to one’s sexual identity is degrading and disrespectful. Given the significant benefits to the relevant statutory objectives and the minor significance of the limitation on the Charter rights at issue, and given the absence of any reasonable alternative that would reduce the impact on Charter protections while sufficiently furthering those same objectives, the decision to refuse to approve TWU’s proposed law school represents a proportionate balance. The decision was reasonable.

Per McLachlin C.J.: There is agreement with the majority that the jurisdiction and decision-making process of the LSBC are reviewable on a standard of reasonableness. Where legislatures delegate regulation of the legal profession to a law society, the law society’s

interpretation of the public interest is owed deference. There is also agreement with the majority that Charter -infringing administrative decisions are reviewed according to the Dor é/ Loyola framework. This framework has two discrete steps. The reviewing court must first determine if the decision limits a Charter right, and then determine whether the limitation of the right is proportionate in light of the state’s objective, and hence is justified as a reasonable measure in a free and democratic society under s. 1 of the Charter .

In most cases, the ultimate question will be whether the decision under review balances the negative effects on the right against the benefits derived from the decision in a proportionate way. However, certain gaps and omissions in the framework must be addressed. To adequately protect the Charter right, the initial focus must be on whether the claimant’s constitutional right has been infringed. Charter values may play a role in defining the scope of rights; it is the right itself, however, that receives protection under the Charter .

Also, the scope of the guarantee of the Charter right must be given a consistent

interpretation regardless of the state actor, and it is the task of the courts on judicial review of a decision to ensure this. Since this is a matter of justification of a rights infringement under s. 1 , the onus is on the state actor that made the rights-infringing decision to demonstrate that the limits its decisions impose on the rights of the claimants are reasonable and demonstrably justifiable in a free and democratic society. Finally, relying on the language of deference and reasonableness as does the majority in this case may be unhelpful. Where an administrative decision-maker renders a decision that has an unjustified and disproportionate impact on a Charter right, it will

always be unreasonable. In this case, the first step of the Dor é/ Loyola framework is satisfied, because the LSBC’s decision not to approve TWU’s proposed law school limits the freedom of religion of members of the TWU community. The LSBC’s denial of accreditation precludes members of the TWU community from engaging in the practice of providing legal education in an environment that conforms to their religious beliefs, deprives them of the ability to express those beliefs in institutional form, and prevents them from associating in the manner they believe their faith requires.

While it may not be necessary to conduct a separate analysis for the guarantees of freedom of expression and freedom of association, the Court must include them in the ambit of the guarantee of freedom of religion. As for the second step of the Dor é/ Loyola framework, the LSBC has shown its infringement of TWU’s freedom of religion to be justified under s. 1 . No one suggests that there was not an objective capable of overriding the Charter right to freedom of religion. Moreover, the decision was minimally impairing.

The LSBC was faced with the choice of either accrediting the law school or denying that accreditation. Therefore, the analysis comes down to the final stage of weighing the benefit achieved by the infringing decision against its negative impacts on the right. Contrary to the majority’s analysis, the negative impacts of the LSBC’s denial of accreditation on the religious, expressive and associational rights of the TWU community are not of minor significance.

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. 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. 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. Per Rowe J.: There is agreement with the majority that the LSBC acted within its jurisdiction when it considered the discriminatory effect of the Covenant on prospective law students at TWU. With the privilege of self-government granted to the LSBC comes a corresponding duty to self-regulate in the public interest. The LSBC was entitled to interpret its public interest mandate as including consideration of the effect of the Covenant on prospective law students.

The fact that the Covenant is a statement of religious rules and principles does not insulate it from such scrutiny. There is disagreement, however, with the majority’s approach to assessing whether the decision of the LSBC infringed the Charter rights raised by TWU. This appeal raises issues that call for clarification of the Doré / Loyola framework. First, when courts review administrative decisions for compliance with the Charter , Charter rights must be the focus of the inquiry — not Charter values.

Charter values have no independent function in the administrative context and their scope is often undefined in the jurisprudence. This lack of clarity is an impediment to applying a structured and consistent approach to adjudicating Charter claims. Second, the adjudication of Charter claims needs to follow a structured two-step analysis. Under the Doré/Loyola framework, the initial burden is on the claimant to demonstrate that the decision infringes his or her Charter rights. This first step requires that the reviewing court possess a proper understanding of the scope of the rights at issue.

An approach that skims over the proper delineation of rights and freedoms runs the risk of distorting the relationship between s. 1 of the Charter and the protections guaranteed by the Charter . This approach can lead to situations whereby certain rights are routinely said to be infringed only for the claimant to be told that the infringement is justified by any number of countervailing considerations. This erodes the seriousness of finding Charter violations. It increases the role of policy considerations in the adjudication of Charter claims by shifting the bulk of the analysis to s. 1.

And it distorts the proper relationship between the branches of government by unduly expanding the policy-making role of the judiciary. The result is an unstructured, somewhat conclusory exercise that ignores the framing of the Charter and departs fundamentally from the Court’s foundational Charter jurisprudence. On judicial review, as in other proceedings, Charter claims demand analytical rigour. This starts with the correct delineation of the scope of the rights and freedoms at issue.

Once the claimant has demonstrated that an administrative decision infringes his or her Charter rights, the second step of the Doré / Loyola framework requires the state actor to demonstrate that the infringement is justified. The Doré/Loyola framework does not shift this justificatory burden onto rights claimants. The justificatory burden must remain where the Charter places it, on the state actor. For the administrative state, this is no more than what s. 1 requires.

The Doré/Loyola framework does not deviate fundamentally from the principles set out in Oakes for assessing the reasonableness of a limit on a Charter right under s. 1 . All the stages of the Oakes test have a role to play in the judicial review of administrative decisions for compliance with the Charter . Often, however, the main hurdle for the state will be the final stages of the Oakes test: minimal impairment and balancing.

The fact that most statutes reviewed under Oakes have failed at the minimal impairment or balancing stages does not mean that the rational connection stage and consideration of the pressing and substantial objective cease to be relevant. Similarly, in the administrative context, the fact that most decisions will be rationally connected to an identified statutory objective does not mean that the inquiry need not be carried out. It means only that this component of the analysis will often readily be met. The main Charter right at issue in this appeal is the freedom of religion guaranteed by s. 2( a ).

The freedom of religion protected by s. 2(

a) is premised on two principles: the exercise of free will and the absence of constraint. From this perspective, religious freedom aims to protect individuals from interference with their religious beliefs and practices. While this focus on the individual choice of believers does not detract from the communal aspect of religion, it must be underscored that religious freedom is premised on the personal volition of individual believers. Although religious communities may adopt their own rules and membership requirements, the foundation of the community remains the voluntary choice of individual believers to join together on the basis of their common faith. The alleged infringement of s. 2(

a) in this case — namely, that the decision of the LSBC interferes with the claimants’ ability to attend an accredited law school at TWU with its mandatory Covenant — does not fall within the scope of freedom of religion. The religious belief or practice at issue relates to the religious proscription of sexual intimacy outside heterosexual marriage and the importance of

imposing this proscription by means of the mandatory Covenant on all students attending the proposed law school at TWU. At the first stage of the s. 2(

a) analysis, it does not suffice that the claimants sincerely believe that studying in a community defined by religious beliefs contributes to their spiritual development. Rather, the claimants must show that they sincerely believe that doing so is a practice required by their religion. The question of whether a belief or practice is objectively required by official religious dogma or is in conformity with the position of religious officials is irrelevant.

All that matters is that the claimant sincerely believes that their religion compels them to act, regardless of whether that line of conduct is objectively or subjectively obligatory. Much of the affidavit evidence relied upon by the majority undermines the view that the claimants have advanced a sincere belief or practice that is required by their religion. Despite this concern, it is assumed that the claimants sincerely believe in the importance of studying in an environment where all students abide by this Covenant. At the second stage of the s. 2(

a) analysis, the proper delineation of the scope of s. 2(

a) comes into play. Where the protection of s. 2(

a) is sought for a belief or practice that constrains the conduct of nonbelievers — those who have freely chosen not to believe — the claim falls outside the scope of the freedom. Therefore, interference with such a belief or practice is not an infringement of s. 2(

a) because the coercion of nonbelievers is not protected by the Charter . The student body at TWU is not coextensive with the religious community of evangelical Christians who attend TWU. Although TWU teaches from a Christian perspective, its statutory mandate requires that its admission policy not be restricted to Christian students. The Covenant is a commitment to enforcing a religiously-based code of conduct, not just in respect of one’s own behaviour, but also in respect of others’, including members of other religions and nonbelievers.

Given that the coercion of nonbelievers is not protected by the Charter , TWU’s claim falls outside the scope of freedom of religion as protected by s. 2( a ). Given the absence of a Charter infringement, the decision of the LSBC must be reviewed under the usual principles of judicial review rather than the Doré/Loyola framework. Reviewed under the standard of reasonableness, the decision of the LSBC will command deference if it meets the criteria set out in Dunsmuir . The LSBC is a self-governing entity.

Therefore, with respect to process, the LSBC had discretion in determining how to carry out its duty to regulate the legal profession in the public interest. There is agreement with the majority that the LSBC’s enabling statute does not preclude the Benchers from holding a referendum or choosing to be bound by the results of such a referendum. Consequently, the procedure employed by the Benchers is not fatal to the reasonableness of their decision. As to the substance of the decision, reasonableness does not always require the decision-maker to give formal reasons.

In some cases, a reviewing court may look to the record to assess the reasonableness of the decision. In this appeal, the range of possible outcomes was informed by the LSBC’s mandate to regulate the legal profession in the public interest and by the binary choice available to the Benchers. Given the deference owed to the LSBC, it was open to the LSBC to conclude that it should not accredit the proposed law school given the Covenant’s imposition of discriminatory barriers to admission.

It was also open to 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. 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. It was therefore reasonable.

Per Côté and Brown JJ. (dissenting): 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. 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.

Under Rule 2-27(4.1) of the Law Society Rules , the LSBC’s authority to approve law schools acts only as a proxy for determining whether a law school’s graduates, as individual applicants to the LSBC, meet the standards of competence and conduct required to become licensed. Rule 2-27(4.1) does not grant the LSBC authority to regulate law schools or to guarantee equal access to law schools. So long as a law school’s admissions policies do not raise concerns over its graduates’ fitness to practise law, the LSBC is simply not statutorily empowered to scrutinize them.

The LSBC is properly concerned with competence, not with merit. This

interpretation is consistent with the purpose of the Legal Profession Act as a whole and respects the express limits to the LSBC’s rule-making powers under s. 11 for the regulation of the legal profession and its constituent parts, extending no further than the licensing process — the doorway to the profession. Although s. 3 states the LSBC’s overarching object and duty includes upholding and protecting the public interest in the administration of justice by “preserving and protecting the rights and freedoms of all persons”, it does not empower the LSBC to police human rights standards in law schools.

Any harms to marginalized communities in the context of legal education are considered by provincial human rights tribunals, by legislatures, and by members of the executive, which grant such institutions the power to confer degrees. The LSBC violated its statutory duty by adopting the results of a referendum affecting Charter rights without engaging in the process of balancing Charter rights and statutory objectives required by the Doré/Loyola framework. The results of the referendum were adopted with no further discussion and therefore no substantive debate.

The LSBC’s decision is therefore completely devoid of any reasoning. And yet, the majority of the Court has replaced the (non-) reasons of the LSBC with its own reasons and made the outcome the sole consideration. Although such a serious error would normally require that the LSBC’s decision be quashed and returned for a proper determination, it now falls to this Court to determine the proportionate balance in this case.

The majority’s lack of rationale for insisting on a distinct framework for judicial review of Charter -infringing administrative decisions is troubling, particularly in light of the fact that the application of the Oakes test is already context-specific. The orthodox test — the Oakes test — must apply to justify state infringements of Charter rights, regardless of the context in which they occur. Holding otherwise subverts the promise of the Constitution that the rights and freedoms guaranteed by the Charter will be subject only to “such reasonable limits prescribed by law as can be demonstrably justified”.

Under the Doré/Loyola framework, Charter rights are guaranteed only so far as they are consistent with the objectives of the enabling statute.

Section 1 of the Charter does not guarantee certain rights and freedoms subject only to the limits imposed by statutory objectives, but to limits that are “demonstrably justified in a free and democratic society”. Further, the Court has been silent on who bears the burden to justify a rights limitation in the administrative context, leaving a conspicuous and serious lacuna in the framework. The burden must rest with the state actor.

The majority’s continued reliance on values protected by the Charter as equivalent to rights is similarly troubling. Resorting to Chartervalues as a counterweight to constitutionalized and judicially defined Charter rights is a highly questionable practice. Charter values areunsourced, amorphous and, just as importantly, undefined. The majority’s preferred value of equality is, without further definition, toovague a notion on which to ground a claim to equal treatment in any and all concrete situations, such as admission to a law school.

Avalue of equality is, therefore, a questionable notion against which to balance the exercise by the TWU community of itsCharter-protected rights. The LSBC’s decision not to approve TWU’s proposed law school infringes the religious freedom of members of the TWU community.The freedom of religion under s. 2(

a) of the Charter, interpreted broadly and purposively, captures the freedom of members of the TWUcommunity to express their religious beliefs through the Covenant — a code of conduct protected by provincial human rights legislation— and to associate with one another in order to study law in an educational community which reflects their religious beliefs. TheLSBC’s decision is a profound interference with religious freedom, and is contrary to the state’s duty of religious neutrality. It issubstantively coercive in nature.

The LSBC’s statutory objective in rendering an approval decision is to ensure that individual applicants are fit for licensing.Accordingly, the justification under s. 1 of the Charter of a restriction on freedom of religion requires evidence of a detrimental impactin the form of the unfitness of future graduates of TWU’s proposed law school to practise law. As the fitness of future graduates ofTWU’s proposed law school was not in dispute, this statutory objective cannot justify any limitations on the TWU community’s s. 2(a)rights.

Even if the LSBC’s statutory mandate had permitted the consideration of broader public interest concerns, the LSBC’s decision wouldnot be justified, since withholding approval substantially interferes with the TWU community’s freedom of religion and approvingTWU’s proposed law school was not against the public interest. Accommodating religious diversity is in the public interest, broadlyunderstood, and approving the proposed law school does not condone discrimination against LGBTQ persons.

The purpose of TWU’sadmissions policy is not to exclude LGBTQ persons, or anybody else, but to establish a code of conduct which ensures the vitality of itsreligious community. No one group is singled out, and many others (notably unmarried heterosexual persons) would be bound by it. Theunequal access resulting from the Covenant is a function of accommodating religious freedom, which itself advances the public interestby promoting diversity in a liberal, pluralist society.

The state and state actors — not private institutions like TWU — are constitutionallybound to accommodate difference in order to foster pluralism in public life. Equating approval to condonation turns the protective shieldof the Charter into a sword by effectively imposing Charter obligations on private actors. Accommodating diverse beliefs and values is a precondition to the secularism and the pluralism that are needed to protect and promotethe Charter rights of all Canadians. State neutrality requires that the state neither favour nor hinder any particular belief, and the sameholds true for non-belief.

Either way, state neutrality must prevail. Tolerance and accommodation of difference serve the public interestand foster pluralism. Approving TWU’s proposed law school was the only decision reflecting a proportionate balancing between Charterrights and the LSBC’s statutory objectives. Cases Cited By Abella, Moldaver, Karakatsanis, Wagner and Gascon JJ. Applied: Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395; Loyola High School v. Quebec (AttorneyGeneral), 2015 SCC 12, [2015] 1 S.C.R. 613; referred to: Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247;Pearlman v.

Manitoba Law Society Judicial Committee, (SCC), [1991] 2 S.C.R. 869; Green v. Law Society of Manitoba,2017 SCC 20, [2017] 1 S.C.R. 360; Canada (Attorney General) v. Law Society of British Columbia, (SCC), [1982] 2S.C.R. 307; Andrews v. Law Society of British Columbia, (SCC), [1989] 1 S.C.R. 143; R. v. Oakes, (SCC), [1986] 1 S.C.R. 103; Reference re Secession of Quebec, (SCC), [1998] 2 S.C.R. 217; Reference re SenateReform, 2014 SCC 32, [2014] 1 S.C.R. 704; R. v. National Post, 2010 SCC 16, [2010] 1 S.C.R. 477; R. v. Conway, 2010 SCC 22, [2010]1 S.C.R. 765; Trinity Western University v.

Law Society of Upper Canada, 2015 ONSC 4250, 126 O.R. (3d) 1; Trinity WesternUniversity v. British Columbia College of Teachers, 2001 SCC 31, [2001] 1 S.C.R. 772; Canada (Attorney General) v. Igloo Vikski Inc.,2016 SCC 38, [2016] 2 S.C.R. 80; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Catalyst Paper Corp. v. NorthCowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5; Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador(Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708; Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36,[2013] 2 S.C.R. 559; Alberta v.

Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567; R. v. Big M Drug Mart Ltd., (SCC), [1985] 1 S.C.R. 295; Syndicat Northcrest v. Amselem, 2004 SCC 47, [2004] 2 S.C.R. 551; Ktunaxa Nation v.British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54, [2017] 2 S.C.R. 386; Trinity Western University v.Nova Scotia Barristers’ Society, 2015 NSSC 25, 381 D.L.R. (4th) 296; Multani v. Commission scolaire Marguerite-Bourgeoys, 2006SCC 6, [2006] 1 S.C.R. 256; R. v. Edwards Books and Art Ltd., (SCC), [1986] 2 S.C.R. 713; S.L. v.

Commission scolairedes Chênes, 2012 SCC 7, [2012] 1 S.C.R. 235; RJR-MacDonald Inc. v. Canada (Attorney General), (SCC), [1995] 3S.C.R. 199; Reference re Same-Sex Marriage, 2004 SCC 79, [2004] 3 S.C.R. 698; Quebec (Attorney General) v. A, 2013 SCC 5, [2013]1 S.C.R. 61; Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11, [2013] 1 S.C.R. 467. By McLachlin C.J. Applied: Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395; Loyola High School v. Quebec (AttorneyGeneral), 2015 SCC 12, [2015] 1 S.C.R. 613; distinguished: Trinity Western University v.

British Columbia College of Teachers, 2001SCC 31, [2001] 1 S.C.R. 772; referred to: E.T. v. Hamilton-Wentworth District School Board, 2017 ONCA 893, 140 O.R. (3d) 11; R. v.Oakes, (SCC), [1986] 1 S.C.R. 103; Multani v. Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6, [2006] 1S.C.R. 256; Syndicat Northcrest v. Amselem, 2004 SCC 47, [2004] 2 S.C.R. 551; Ktunaxa Nation v. British Columbia (Forests, Landsand Natural Resource Operations), 2017 SCC 54, [2017] 2 S.C.R. 386; R. v. Edwards Books and Art Ltd., (SCC),[1986] 2 S.C.R. 713; Alberta v.

Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567; Trinity Western University v.Nova Scotia Barristers’ Society, 2015 NSSC 25, 381 D.L.R. (4th) 296.

By Rowe J. Applied: Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395; Loyola High School v. Quebec (AttorneyGeneral), 2015 SCC 12, [2015] 1 S.C.R. 613; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; distinguished: B. (R.) v.Children’s Aid Society of Metropolitan Toronto, (SCC), [1995] 1 S.C.R. 315; considered: R. v. Oakes, (SCC), [1986] 1 S.C.R. 103; Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567; R. v. Big M Drug MartLtd., (SCC), [1985] 1 S.C.R. 295; Multani v.

Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6, [2006] 1 S.C.R.256; Syndicat Northcrest v. Amselem, 2004 SCC 47, [2004] 2 S.C.R. 551; Trinity Western University v. British Columbia College ofTeachers, 2001 SCC 31, [2001] 1 S.C.R. 772; referred to: Andrews v. Law Society of British Columbia, (SCC), [1989] 1S.C.R. 143; Pearlman v. Manitoba Law Society Judicial Committee, (SCC), [1991] 2 S.C.R. 869; Green v. Law Societyof Manitoba, 2017 SCC 20, [2017] 1 S.C.R. 360; Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association,2011 SCC 61, [2011] 3 S.C.R. 654; Mouvement laïque québécois v.

Saguenay (City), 2015 SCC 16, [2015] 2 S.C.R. 3; Law Society ofNew Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247; Trinity Western University v. Law Society of Upper Canada, 2018 SCC 33,[2018] 2 S.C.R. 453; RWDSU v. Dolphin Delivery Ltd., (SCC), [1986] 2 S.C.R. 573; R. v. Salituro, (SCC), [1991] 3 S.C.R. 654; Dagenais v. Canadian Broadcasting Corp., (SCC), [1994] 3 S.C.R. 835; Hill v. Church ofScientology of Toronto, (SCC), [1995] 2 S.C.R. 1130; M. (A.) v. Ryan, (SCC), [1997] 1 S.C.R. 157;WIC Radio Ltd. v. Simpson, 2008 SCC 40, [2008] 2 S.C.R. 420; Grant v.

Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640; Gehl v.Canada (Attorney General), 2017 ONCA 319, 138 O.R. (3d) 52; E.T. v. Hamilton-Wentworth District School Board, 2017 ONCA 893,140 O.R. (3d) 11; Irwin Toy Ltd. v. Quebec (Attorney General), (SCC), [1989] 1 S.C.R. 927; R. v. Singh, 2007 SCC 48,[2007] 3 S.C.R. 405; Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54, [2017] 2S.C.R. 386; Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R. 145; Re B.C. Motor Vehicle Act, (SCC),[1985] 2 S.C.R. 486; Eldridge v.

British Columbia (Attorney General), (SCC), [1997] 3 S.C.R. 624; Vriend v. Alberta, (SCC), [1998] 1 S.C.R. 493; Figueroa v. Canada (Attorney General), 2003 SCC 37, [2003] 1 S.C.R. 912;Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R.432; Reference re Same-Sex Marriage, 2004 SCC 79, [2004] 3 S.C.R. 698; R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460; Divito v.Canada (Public Safety and Emergency Preparedness), 2013 SCC 47, [2013] 3 S.C.R. 157; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R.353; R. v.

Therens, (SCC), [1985] 1 S.C.R. 613; R. v. Smith, (SCC), [1987] 1 S.C.R. 1045; Montréal(City) v. 2952-1366 Québec Inc., 2005 SCC 62, [2005] 3 S.C.R. 141; Slaight Communications Inc. v. Davidson, (SCC),[1989] 1 S.C.R. 1038; Ross v. New Brunswick School District No. 15, (SCC), [1996] 1 S.C.R. 825; Canada (AttorneyGeneral) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134; Sauvé v. Canada (Chief Electoral Officer), 2002 SCC68, [2002] 3 S.C.R. 519; Canada v. Craig, 2012 SCC 43, [2012] 2 S.C.R. 489; Paul v. British Columbia (Forest Appeals Commission),2003 SCC 55, [2003] 2 S.C.R. 585; R. v.

Edwards Books and Art Ltd., (SCC), [1986] 2 S.C.R. 713; Christian EducationSouth Africa v. Minister of Education, [2000] ZACC 11, 2000

(4) S.A. 757; R. v. Jones, (SCC), [1986] 2 S.C.R. 284;Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11, [2013] 1 S.C.R. 467. By Côté and Brown JJ. (dissenting) Trinity Western University v. Law Society of Upper Canada, 2018 SCC 33, [2018] 2 S.C.R. 453; Trinity Western Universityv. British Columbia College of Teachers, 2001 SCC 31, [2001] 1 S.C.R. 772; Trinity Western University v. Law Society of UpperCanada, 2015 ONSC 4250, 126 O.R. (3d) 1; R. v. Edwards Books and Art Ltd., (SCC), [1986] 2 S.C.R. 713; R. v. Big MDrug Mart Ltd., (SCC), [1985] 1 S.C.R. 295; Alberta v.

Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2S.C.R. 567; Christian Education South Africa v. Minister of Education, [2000] ZACC 11, 2000

(4) S.A. 757; Doré v. Barreau duQuébec, 2012 SCC 12, [2012] 1 S.C.R. 395; Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 S.C.R. 613; R. v.Oakes, (SCC), [1986] 1 S.C.R. 103; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559;Reference re Secession of Quebec, (SCC), [1998] 2 S.C.R. 217; Reference re Senate Reform, 2014 SCC 32, [2014] 1S.C.R. 704; R. v. Comeau, 2018 SCC 15, [2018] 1 S.C.R. 342; RJR-MacDonald Inc. v. Canada (Attorney General), (SCC), [1995] 3 S.C.R. 199; R. v. Morales, (SCC), [1992] 3 S.C.R. 711; R. v. Zundel, (SCC), [1992] 2S.C.R. 731; Roncarelli v.

Duplessis, (SCC), [1959] S.C.R. 121; Smith & Rhuland Ltd. v. The Queen, (SCC), [1953] 2 S.C.R. 95; Shell Canada Products Ltd. v. Vancouver (City), (SCC), [1994] 1 S.C.R. 231; Baker v.Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817; Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27; Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5; Green v.Law Society of Manitoba, 2017 SCC 20, [2017] 1 S.C.R. 360; Delta Air Lines Inc. v. Lukács, 2018 SCC 2, [2018] 1 S.C.R. 6; Dagenaisv. Canadian Broadcasting Corp., (SCC), [1994] 3 S.C.R. 835; Multani v.

Commission scolaire Marguerite-Bourgeoys,2006 SCC 6, [2006] 1 S.C.R. 256; Slaight Communications Inc. v. Davidson, (SCC), [1989] 1 S.C.R. 1038; Stoffman v.Vancouver General Hospital, (SCC), [1990] 3 S.C.R. 483; Ross v. New Brunswick School District No. 15, (SCC), [1996] 1 S.C.R. 825; Eldridge v. British Columbia (Attorney General), (SCC), [1997] 3 S.C.R. 624; LittleSisters Book and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69, [2000] 2 S.C.R. 1120; United States v. Burns, 2001 SCC7, [2001] 1 S.C.R. 283; Greater Vancouver Transportation Authority v.

Canadian Federation of Students — British ColumbiaComponent, 2009 SCC 31, [2009] 2 S.C.R. 295; Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, [2015] 2 S.C.R. 3;Association of Justice Counsel v. Canada (Attorney General), 2017 SCC 55, [2017] 2 S.C.R. 456; Ktunaxa Nation v. British Columbia(Forests, Lands and Natural Resource Operations), 2017 SCC 54, [2017] 2 S.C.R. 386; Gehl v. Canada (Attorney General), 2017ONCA 319, 138 O.R. (3d) 52; National Coalition for Gay and Lesbian Equality v. Minister of Justice, [1998] ZACC 15, 1999

(1) S.A. 6;Saumur v. City of Quebec, (SCC), [1953] 2 S.C.R. 299; Syndicat Northcrest v. Amselem, 2004 SCC 47, [2004] 2 S.C.R.551; Chamberlain v. Surrey School District No. 36, 2002 SCC 86, [2002] 4 S.C.R. 710; Reference re Same-Sex Marriage, 2004 SCC 79,[2004] 3 S.C.R. 698. Statutes and Regulations Cited Canadian Charter of Rights and Freedoms, ss. 1, 2(a), (b), (d), 7, 15, 32, 33. Civil Marriage Act, S.C. 2005, c. 33,

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Interpretation Under the Canadian Charter of Rights and Freedoms ” (2015), 65:3 U.T.L.J. 239. Pothier, Dianne. “An Argument Against Accreditation of Trinity Western University’s Proposed Law School” (2014), 23:1 Const. Forum Const. 1. Régimbald, Guy. Canadian Administrative Law , 2nd ed. Markham, Ont.: LexisNexis, 2015. Sossin, Lorne, and Mark Friedman. “Charter Values and Administrative Justice” (2014), 67 S.C.L.R. (2d) 391 . Van Harten, Gus, et al. Administrative Law: Cases, Text, and Materials , 7th ed. Toronto: Emond Montgomery, 2015.

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L.R. (6th) 236, [2016] B.C.J. No. 2252 (QL), 2016 CarswellBC 3008 (WL Can.), affirming a decision of Hinkson C.J., 2015 BCSC 2326 , 392 D.L.R. (4th) 722, 344 C.R.R. (2d) 267, 85 B.C.L.R. (5th) 174, [2016] 8 W.W.R. 298, 100 Admin. L.R. (5th) 99, [2015] B.C.J. No. 2697 (QL), 2015 CarswellBC 3618 (WL Can.). Appeal allowed, Côté and Brown JJ. dissenting. Peter A. Gall , Q.C. , Donald R. Munroe , Q.C. , Benjamin J. Oliphant and Deborah Armour , for the appellant. Kevin L. Boonstra , Jonathan B. Maryniuk and Kevin G. Sawatsky , for the respondents. Julius H.

Grey , Gail Davidson and Audrey Boissonneault , for the intervener Lawyers’ Rights Watch Canada. Eugene Meehan , Q.C. , and Daniel C. Santoro , for the intervener the National Coalition of Catholic School Trustees’ Associations. Eugene Meehan , Q.C. , and Marie-France Major , for the intervener the International Coalition of Professors of Law. Derek Ross and Deina Warren , for the intervener the Christian Legal Fellowship. Susan Ursel , David Grossman and Olga Redko , for the intervener the Canadian Bar Association.

Chris Paliare , Joanna Radbord and Monique Pongracic-Speier , for the intervener the Advocates’ Society. André Schutten and John Sikkema , for the intervener the Association for Reformed Political Action (ARPA) Canada. Barry W. Bussey and Philip A. S. Milley , for the intervener the Canadian Council of Christian Charities. William J. Sammon and Amanda M. Estabrooks , for the intervener the Canadian Conference of Catholic Bishops. Peter J. Barnacle and Immanuel Lanzaderas , for the intervener the Canadian Association of University Teachers. Kristine Spence , for the intervener the Law Students’ Society of Ontario.

Gerald Chipeur , Q.C. , Jonathan Martin and Grace Mackintosh , for the intervener the Seventh-day Adventist Church in Canada. Karey Brooks and Elin Sigurdson , for the intervener the BC LGBTQ Coalition. Albertos Polizogopoulos and Kristin Debs , for the interveners the Evangelical Fellowship of Canada and Christian Higher Education Canada. Wesley J. McMillan and Kaitlyn Meyer , for the intervener the British Columbia Humanist Association. Adriel Weaver , for the intervener Egale Canada Human Rights Trust. Michael Sobkin and E. Blake Bromley , for the intervener the Faith, Fealty & Creed Society.

Gwendoline Allison and Philip Horgan , for the interveners the Roman Catholic Archdiocese of Vancouver, the Catholic Civil Rights League and the Faith and Freedom Alliance. Tim Dickson and Catherine George , for the intervener the Canadian Secular Alliance. Robyn Trask and Rajwant Mangat , for the intervener the West Coast Women’s Legal Education and Action Fund. Avnish Nanda and Balpreet Singh Boparai , for the intervener the World Sikh Organization of Canada. The following is the judgment delivered by

Abella, Moldaver, Karakatsanis, Wagner and Gascon JJ. — I. Overview [ 1 ] Trinity Western University (TWU), an evangelical Christian postsecondary institution, seeks to open a law school that requires its students and faculty to adhere to a religiously based code of conduct prohibiting “sexual intimacy that violates the sacredness of marriage between a man and a woman”. [ 2 ] At issue in this appeal is a decision of the Law Society of British Columbia (LSBC) not to recognize TWU’s proposed law school.

TWU and Brayden Volkenant, a graduate of TWU’s undergraduate program who would have chosen to attend TWU’s proposed law school, successfully brought judicial review proceedings to the Supreme Court of British Columbia, arguing that the LSBC’s decision violated religious rights protected by s. 2(

a) of the Canadian Charter of Rights and Freedoms . The Court of Appeal for British Columbia found that the LSBC should have approved the law school. [ 3 ] In our respectful view, the LSBC’s decision not to recognize TWU’s proposed law school represents a proportionate balance between the limitation on the Charter right at issue and the statutory objectives governing the LSBC. The LSBC’s decision was therefore reasonable. II. Background A. The Parties [ 4 ] TWU is a privately funded evangelical Christian university located in Langley, British Columbia.

It offers around 40 undergraduate majors and 17 graduate programs spanning an array of academic disciplines and subjects, all taught from a Christian perspective.

Its object is “to provide for young people of any race, colour, or creed university education in the arts and sciences with an underlying philosophy and viewpoint that is Christian” ( Trinity Western University Act , S.B.C. 1969, c. 44, s. 3(2)). [ 5 ] Its approach to Christian education is set out in its mission statement: The mission of Trinity Western University, as an arm of the Church, is to develop godly Christian leaders: positive, goal-oriented university graduates with thoroughly Christian minds; growing disciples of Christ who glorify God through fulfilling the Great Commission, serving God and people in the various marketplaces of life. (A.R., vol.

I, at p. 119) [ 6 ] Evangelical Christians believe in the authority of the Bible, the commitment to sharing the Christian message through evangelism, and sexual moral purity which requires sexual abstention outside marriage between a man and a woman. TWU’s curriculum is developed and taught in a manner consistent with its religious worldview. The foundational beliefs of evangelical Christianity are also reflected in TWU’s Community Covenant Agreement (Covenant).

The Covenant requires TWU community members to “voluntarily abstain” from a number of actions, including harassment, lying, cheating, plagiarism, and the use or possession of alcohol on campus. At the heart of this appeal, however, is the Covenant’s prohibition on “sexual intimacy that violates the sacredness of marriage between a man and a woman” (A.R., vol. III, at p. 403). [ 7 ] All TWU students and faculty must sign and abide by the Covenant as a condition of attendance or employment. The behavioural expectations set out in the Covenant apply to conduct both on and off campus.

A student’s failure to comply with the Covenant may result in disciplinary measures including suspension or permanent expulsion.

Students are expected to hold each other accountable for complying with the Covenant; disciplinary processes may be initiated as a result of a complaint by a TWU student regarding another student’s behaviour. [ 8 ] While a large proportion of the students who enroll at TWU identify as Christian, TWU says that its students may, and in fact do, hold and express diverse opinions on moral, ethical and religious issues and are encouraged to debate different viewpoints inside and outside the classroom. [ 9 ] Brayden Volkenant is a graduate of TWU’s undergraduate program, who identifies as an evangelical Christian.

He deposed that at the time he was applying to attend law school, TWU’s proposed law school would have been his “top choice”. [ 10 ] The LSBC is the regulator of the legal profession in British Columbia. The LSBC’s structure, object and powers are set out in its governing statute, the Legal Profession Act , S.B.C. 1998, c. 9 ( LPA ). The LSBC has the statutory authority to determine who may be admitted to the British Columbia bar (see LPA , ss. 19 to 21 ). B.

TWU’s Proposed Law School [ 11 ] Over two decades ago, TWU decided that it wished to establish a faculty of law and to add a three-year juris doctor (J.D.) common law degree program to its degree offerings.

In June 2012, TWU submitted its proposal to British Columbia’s Minister of Advanced Education for the approval required to be able to grant law degrees, pursuant to the Minister’s authority under the Degree Authorization Act , S.B.C. 2002, c. 24, s. 4(1). [ 12 ] TWU also submitted its proposal to the Federation of Law Societies of Canada, which received delegated authority from each of the provincial law societies in 2010 to ensure that new Canadian common law degree programs meet established national requirements. In December 2013, the Federation granted preliminary approval to TWU’s proposed law school program.

The following day, the Minister granted approval to TWU’s proposed law school, authorizing TWU to grant law degrees to its graduates.

C. The LSBC’s Decision Not to Approve TWU’s Proposed Law School [ 13 ] Under the LSBC’s Rules, adopted pursuant to the LPA , enrollment in the LSBC’s bar admission program requires proof of “academic qualification”.

Under Rule 2-27 (now Rule 2-54 of the Law Society Rules 2015 ), this requirement is met with a bachelor of laws or equivalent degree issued by an “approved” common law faculty of law in a Canadian university. [ 14 ] A common law faculty of law is “approved” for the purposes of Rule 2-27 if it has been approved by the Federation “unless the Benchers adopt a resolution declaring that it is not or has ceased to be an approved faculty of law”. [ 15 ] Therefore, when the Federation granted its preliminary approval to TWU’s law school on December 16, 2013, the law school became an “approved” faculty of law under the LSBC’s Rule 2-27, unless the Benchers declared that it was not. [ 16 ] At their meeting of February 28, 2014, the LSBC Benchers confirmed that they would vote on whether to adopt the following resolution at a meeting scheduled for April 11, 2014: Pursuant to Law Society Rule 2-27(4.1), the Benchers declare that, notwithstanding the preliminary approval granted to Trinity Western University on December 16, 2013 by the Federation of Law Societies’ Canadian Common Law Program Approval Committee, the proposed School of Law at Trinity Western University is not an approved faculty of law. (A.R., vol.

VII, at p. 1136) Ahead of the scheduled vote, the Benchers received written submissions and other information from TWU, submissions from the profession and the public, and various legal opinions. At the April 11, 2014 meeting, the resolution failed, and TWU’s proposed law school remained approved under Rule 2-27. [ 17 ] This prompted a considerable response from members of British Columbia’s legal profession.

LSBC members requisitioned a Special General Meeting pursuant to what was then Rule 1 -9(2) (now Rule 1-11(2) of the Law Society Rules 2015 ) to consider and vote on a resolution that would direct the Benchers to declare that TWU’s law school not be an approved faculty of law under Rule 2-27. The members were provided with, and encouraged to review, the material that had been provided to the Benchers before their April 11, 2014 meeting, and to review the webcast or transcript of that meeting. [ 18 ] The Special General Meeting was held on June 10, 2014.

By a vote of 3210 members for and 968 members against, the members voted to adopt the proposed resolution not approving the law school. [ 19 ] At a meeting held on September 26, 2014, the Benchers considered their response, debating among three alternative means of proceeding. The first was to hold a referendum of members on the question of whether the Benchers should be required to implement the resolution. The second was for the Benchers to immediately implement the resolution by declaring that TWU’s proposed law school was not approved.

The third was for the Benchers to postpone consideration of the issue until the release of a trial decision in any one of the three parallel litigation proceedings relating to recognition of TWU’s law school then taking place in British Columbia, Ontario and Nova Scotia. [ 20 ] The Benchers chose the first option, voting to hold a referendum on the issue of TWU’s law school approval.

The Benchers agreed to be bound by the results only if one-third of members voted in the referendum and two-thirds of the votes were in favour of implementing the June 10, 2014 resolution. [ 21 ] The referendum of all members was conducted by mail-in ballot in October 2014: 5951 members voted to implement the resolution through a declaration that TWU’s proposed law school was not an approved faculty of law, while 2088 members voted against the resolution. [ 22 ] On October 31, 2014, the Benchers passed a resolution declaring that TWU’s law school was not an approved faculty of law.

The resolution was passed with 25 votes in favour, one against, and four abstentions. On December 11, 2014, the Minister withdrew his approval of TWU’s proposed law school under the Degree Authorization Act . III. Prior Decisions A. Judicial Review — 2015 BCSC 2326 , 392 D.L.R. (4th) 722 (Hinkson C.J.) [ 23 ] TWU and Mr.

Volkenant applied to the Supreme Court of British Columbia for judicial review of the LSBC’s decision, arguing that it failed to appropriately take into account their freedom of religion under s. 2( a ). [ 24 ] The court concluded that while refusing TWU’s proposed faculty of law based on its admissions policy was within the LSBC’s statutory mandate, by putting the issue to a referendum, the Benchers had improperly fettered their discretion. The court further concluded that the Benchers were obligated to consider and balance TWU’s and Mr. Volkenant’s s. 2(

a) Charter rights with the equality rights of current and prospective LSBC members, particularly the LGBTQ community. Since the LSBC had proceeded by referendum, this balancing had not taken place. The court quashed the LSBC’s decision and restored the results of the April 11, 2014 vote whereby TWU’s proposed law school remained “approved” under Rule 2-27. B. Court of Appeal — 2016 BCCA 423 , 405 D.L.R. (4th) 16 (Bauman C.J. and Newbury, Groberman, Willcock and Fenlon JJ.A.) [ 25 ] The Court of Appeal for British Columbia dismissed the appeal.

The court was of the view that the Benchers had improperly fettered their discretion by binding themselves to the referendum results. As the Benchers were aware that the Charter was implicated by the decision, they were required to balance any potential infringement of Charter rights with the relevant statutory

objectives. [ 26 ] In any case, the Court of Appeal also concluded that the decision not to approve TWU’s law school did not represent a proportionate balance between the LSBC’s statutory objectives and the relevant Charter protections. Applying Doré v. Barreau du Québec , 2012 SCC 12 , [2012] 1 S.C.R. 395, and Loyola High School v. Quebec (Attorney General) , 2015 SCC 12 , [2015] 1 S.C.R. 613, the court found that the impact on TWU’s religious freedom was severe, while any practical effect on access to the legal profession for LGBTQ persons was insignificant.

The Court of Appeal therefore concluded that the LSBC’s decision not to approve TWU’s law school was unreasonable. IV. Analysis A. Questions on Appeal [ 27 ] At the outset, it is important to identify what the LSBC actually decided when denying approval to TWU’s proposed law school.

The LSBC did not deny graduates from TWU’s proposed law school admission to the LSBC; rather, the LSBC denied TWU’s proposed law school with a mandatory covenant. [ 28 ] In reviewing this decision, we must consider the following issues: whether the LSBC was entitled under its enabling statute to consider TWU’s admissions policies and to hold a referendum of its members in deciding whether to approve its proposed law school; whether the LSBC’s decision limited a Charter protection; and if so, whether that decision reflected a proportionate balance of the Charter protection and the statutory objectives. B.

The Scope of the LSBC’s Statutory Mandate [ 29 ] This appeal requires us to address the scope of the LSBC’s statutory mandate. At issue in this case is the LSBC’s decision not to approve TWU’s proposed law school as a route of entry to the legal profession in British Columbia — a decision that falls within the core of the LSBC’s role as the gatekeeper to the profession.

A question that arises is whether the LSBC was entitled to consider factors apart from the academic qualifications and competence of individual graduates in making this decision to deny approval to TWU’s proposed law school. [ 30 ] TWU argues that the LSBC is only entitled to consider a law school’s academic program, rather than its admissions policies, in deciding whether to approve it.

It submits that Rule 2-27, the LSBC Rule under which the decision not to approve TWU’s law school was made, was passed pursuant to the Benchers’ statutory authority to make rules to “establish requirements, including academic requirements, and procedures” for enrolment of articled students and for admission to the bar, set out in ss. 20(1) (

a) and 21(1) (

b) of the LPA . However, ss. 20(1)(

a) and 21(1)(

b) of the LPA both explicitly allow the Benchers to “establish requirements, including academic requirements”. TWU’s argument also ignores the Benchers’ authority, under s. 11(1) of the LPA , to “make rules for the governing of the society, lawyers, law firms, articled students and applicants, and for the carrying out of [the LPA ]”.

This authority is explicitly “not limited by any specific power or requirement to make rules given to the benchers” elsewhere in the LPA (see LPA , s. 11(2)). [ 31 ] In our view, the LPA requires the Benchers to consider the overarching objective of protecting the public interest in determining the requirements for admission to the profession, including whether to approve a particular law school. [ 32 ] The legal profession in British Columbia, as in other Canadian jurisdictions, has been granted the privilege of self- regulation.

In exchange, the profession must exercise this privilege in the public interest ( Law Society of New Brunswick v. Ryan , 2003 SCC 20 , [2003] 1 S.C.R. 247, at para. 36 , quoting D. A. A. Stager and H. W. Arthurs in Lawyers in Canada (1990), at p. 31). The statutory object of the LSBC is, broadly, to uphold and protect the public interest in the administration of justice. That object is set out in s. 3 of the LPA , which reads as follows: 3 It is the object and duty of the society to uphold and protect the public interest in the administration of justice by (

a) preserving and protecting the rights and freedoms of all persons, (

b) ensuring the independence, integrity, honour and competence of lawyers, (

c) establishing standards and programs for the education, professional responsibility and competence of lawyers and of applicants for call and admission, (

d) regulating the practice of law, and (

e) supporting and assisting lawyers, articled students and lawyers of other jurisdictions who are permitted to practise law in British Columbia in fulfilling their duties in the practice of law. [ 33 ] The LSBC’s overarching statutory object in s. 3 of the LPA — to uphold and protect the public interest in the administration of justice — is stated in the broadest possible terms. While the provisions of s. 3 set out means by which this overarching

objective is to be achieved, those means are framed expansively and include “regulating the practice of law” and “preserving andprotecting the rights and freedoms of all persons”.

Section 3 of the LPA, read as a whole, manifests the legislature’s intention to “leavethe governance of the legal profession to lawyers” (see Pearlman v. Manitoba Law Society Judicial Committee, (SCC),[1991] 2 S.C.R. 869, at p. 888). [34] As the governing body of a self-regulating profession, the LSBC’s determination of the manner in which its broadpublic interest mandate will best be furthered is entitled to deference. The public interest is a broad concept and what it requires willdepend on the particular context. [35] This Court most recently considered the self-regulation of the legal profession in Green v.

Law Society of Manitoba,2017 SCC 20, [2017] 1 S.C.R. 360. There, Wagner J. repeatedly noted the deference owed to law societies’

interpretation of “publicinterest”: that they have “broad discretion to regulate the legal profession on the basis of a number of policy considerations related to thepublic interest” (para. 22); that they must be afforded “considerable latitude in making rules based on [their]

interpretation of the ‘publicinterest’ in the context of [their] enabling statute” (para. 24); and that they have “particular expertise when it comes to deciding on thepolicies and procedures that govern the practice of their professions” (para. 25). [36] Green affirmed a long history of deference to law societies when they self-regulate in the public interest. For manyyears, this Court has recognized that law societies self-regulate in the public interest (Canada (Attorney General) v. Law Society ofBritish Columbia, (SCC), [1982] 2 S.C.R. 307 (Canada (A.G.)), at pp. 335-36; Andrews v.

Law Society of BritishColumbia, (SCC), [1989] 1 S.C.R. 143, at pp. 187-88; Pearlman, at p. 887; Ryan, at para. 36). As Iacobucci J. explainedin Pearlman, the regulation of professional practice through a system of licensing is directed toward the protection of vulnerable interests— those of clients and third parties. [37] To that end, where a legislature has delegated aspects of professional regulation to the professional body itself, thatbody has primary responsibility for the development of structures, processes, and policies for regulation.

This delegation recognizes thebody’s particular expertise and sensitivity to the conditions of practice. This delegation also maintains the independence of the bar; ahallmark of a free and democratic society (Canada (A.G.), at pp. 335-36). Therefore, where a statute manifests a legislative intent toleave the governance of the legal profession to lawyers, “unless judicial intervention is clearly warranted, this expression of thelegislative will ought to be respected” (Pearlman, at p. 888).

As Iacobucci J. later explained in Ryan, we give deference to law societydecisions to “giv[e] effect to the legislature’s intention to protect the public interest by allowing the legal profession to be self-regulating”(para. 40). [38] In sum, where legislatures delegate regulation of the legal profession to a law society, the law society’s

interpretationof the public interest is owed deference. This deference properly reflects legislative intent, acknowledges the law society’s institutionalexpertise, follows from the breadth of the “public interest”, and promotes the independence of the bar. [39] The LSBC in this case interpreted its duty to uphold and protect the public interest in the administration of justice asprecluding the approval of TWU’s proposed law school because the requirement that students sign the Covenant as a condition ofadmission effectively imposes inequitable barriers on entry to the school.

The LSBC was entitled to be concerned that inequitablebarriers on entry to law schools would effectively impose inequitable barriers on entry to the profession and risk decreasing diversitywithin the bar.

Ultimately, the LSBC determined that the approval of TWU’s proposed law school with a mandatory covenant wouldnegatively impact equitable access to and diversity within the legal profession and would harm LGBTQ individuals, and would thereforeundermine the public interest in the administration of justice. [40] In our view, it was reasonable for the LSBC to conclude that promoting equality by ensuring equal access to thelegal profession, supporting diversity within the bar, and preventing harm to LGBTQ law students were valid means by which the LSBCcould pursue its overarching statutory duty: upholding and maintaining the public interest in the administration of justice, whichnecessarily includes upholding a positive public perception of the legal profession.

We arrive at this conclusion for the followingreasons. [41] Limiting access to membership in the legal profession on the basis of personal characteristics, unrelated to merit, isinherently inimical to the integrity of the legal profession. This is especially so in light of the societal trust placed in the legal professionand the explicit statutory direction that the LSBC should be concerned with “preserving and protecting the rights and freedoms of allpersons” as a means to upholding the public interest in the administration of justice (LPA, s. 3(a)).

Indeed, the LSBC, as a public actor,has an overarching interest in protecting the values of equality and human rights in carrying out its functions. As Abella J. wrote inLoyola, at para. 47, “shared values — equality, human rights and democracy — are values the state always has a legitimate interest inpromoting and protecting”. Constitutional and Charter values have been recognized as an important tool in judicial decision makingsince R. v. Oakes, (SCC), [1986] 1 S.C.R. 103 (p. 136), affirmed in subsequent jurisprudence (see e.g.

Reference reSecession of Quebec, (SCC), [1998] 2 S.C.R. 217, at paras. 64-66; Reference re Senate Reform, 2014 SCC 32, [2014] 1S.C.R. 704, at para. 25; R. v. National Post, 2010 SCC 16, [2010] 1 S.C.R. 477). Far from controversial, these values are acceptedprinciples of constitutional

interpretation. In the administrative context, this Court has recognized that “any exercise of statutorydiscretion must comply with the Charter and its values” (R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765, at para. 41. See also G.Régimbald, Canadian Administrative Law (2nd ed. 2015), at pp. 94-100).

There is no reason why Charter values should be seen as lesssignificant in the context of administrative decision-making. [42] Eliminating inequitable barriers to legal education, and thereby, to membership in the legal profession, also promotesthe competence of the bar and improves the quality of legal services available to the public. The LSBC is statutorily mandated to ensurethe competence of lawyers as a means of upholding and protecting the public interest in the administration of justice (LPA, s. 3(b)).

TheLSBC is not limited to enforcing minimum standards of competence for the individual lawyers it licenses; it is also entitled to considerhow to promote the competence of the bar as a whole. [43] As well, the LSBC was entitled to interpret the public interest in the administration of justice as being furthered bypromoting diversity in the legal profession — or, more accurately, by avoiding the imposition of additional impediments to diversity in

the profession in the form of inequitable barriers to entry. A bar that reflects the diversity of the public it serves undeniably promotes the administration of justice and the public’s confidence in the same. A diverse bar is more responsive to the needs of the public it serves. A diverse bar is a more competent bar (see LPA , s. 3(b)). [ 44 ] The LSBC’s statutory objective of “protect[ing] the public interest in the administration of justice by . . . preserving and protecting the rights and freedoms of all persons” entitles the LSBC to consider harms to some communities in making a decision it is otherwise entitled

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