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Trinity Western University v. British
Columbia College of Teachers
Supreme Court of Canada 2001 SCC 31
Date of Decision: May 17, 2001
Date of Publication: May 28, 2001
In this issue:
- Significance of Decision
- Key Terms
- Summary of Facts
- Decision
- The Court's Reason
- Lex View Commentary
This case corrects a widespread flaw in the reading of
contemporary Charter adjudication - a flaw that has consistently
worked to the disadvantage of persons of religious faith. In its
place, the Court demonstrates a broad, contextual reading of the
Constitution, which recognizes the many places in the Charter
and elsewhere where the needs of religious persons and
institutions are advanced. The Court displays a sensitive
understanding of the purpose of religious institutions, and
attempts to ascertain and balance the true needs of the public
education system together with freedom of religion.
freedom of religion, "charter values," equality,
meaningful pluralism, human rights and religious exemption
provisions
The British Columbia College of Teachers ("BCCT")
is the governing body of the teaching profession in BC. Part of
its statutory mandate is to establish standards for the
education and competence of its members, "having regard to
the public interest". Trinity Western University
("TWU"), a fully accredited private university founded
on religious principles, sought (and was denied) full
accreditation from the BCCT for its teaching program.
The root of the dispute between TWU and the BCCT is the content
of a statement of community standards which TWU requires that
its students agree to observe (although not necessarily agree
with). The statement sets out the responsibilities of the
student in contributing towards "an atmosphere that is
consistent with [the] profession of faith". As part of
maintaining this atmosphere, one section of the statement
requires that students "refrain from practices which are
biblically condemned", including "...premarital sex,
adultery, and homosexual behaviour". Despite a committee
recommendation that TWU's teaching program be approved, the BCCT
ultimately denied accreditation on the basis that "the
proposed program follows discriminatory practices that are
contrary to the public interest and public policy", on the
basis of the statement that "homosexual behaviour" is
biblically condemned.
The trial judge overturned the Council's decision, and directed
the BCCT to approve TWU's application. That decision was upheld
by the B.C. Court of Appeal, and the BCCT appealed further to
the Supreme Court of Canada.
Decision:
An 8-1 majority of
the Court denied the BCCT's appeal, and ordered it to approve
TWU's education program, subject to the conditions set out by
the BCCT's practice committee.
The Court’s Reasons:
Majority reasons
Justices Iacobucci and Bastarache, writing for the majority,
held that it is within the jurisdiction of the BCCT to determine
whether teaching candidates are of suitable character to enter
the profession. The BCCT's mandate is not concerned solely with
the skills and knowledge of prospective teachers, but also the
ability of candidates to fulfil their roles in developing civic
virtue and responsible citizenship, and in maintaining a
teaching environment free of prejudice and intolerance. The BCCT
is authorized to consider all aspects of the education program
at TWU, including the code of conduct which its students sign.
Determining what is in the public interest, in this case,
requires reconciling competing claims of rights. This is an
exercise in which the governing body of teachers has no special
qualification;
"the Council is not particularly well equipped to determine
the scope of freedom of religion and conscience and to weigh
these rights against the right to equality in the context of a
pluralistic society." Therefore, when courts review
decisions of the Council of the BCCT touching on human rights,
they will not be deferential to its decisions.
The majority of the Court held that the Council's speculative
conclusion that TWU graduates would likely be ill equipped to
deal with homosexual students was based on a perception rather
than any evidence of actual discrimination. The Court noted that
there was no evidence before it of any TWU graduates having
engaged in discriminatory behaviour in the classroom. Instead of
direct evidence, the BCCT inferred institutionalized
discrimination from TWU's code of conduct, from which the BCCT
claimed a reasonable apprehension that TWU students would be
unable to provide a supportive environment for homosexual
students.
The majority held that the BCCT was correct in its assessment
that homosexual students would likely not want to attend TWU due
to the requirement to sign the code of conduct. The Court held
that it was also correct to evaluate the impact of TWU's
admission policy on the public school environment, and to
consider concerns about equality. However, the majority held,
the BCCT was in error, and acted unfairly, in concluding without
any evidence that TWU students would likely be unable to provide
a supportive classroom environment.
The BCCT also erred by disregarding the dimension of religious
freedom. The BCCT should have noted that in addition to
protecting against discrimination based on sexual orientation,
s. 15(1) of the Charter equally protects against discrimination
based on religion. For further evidence of a societal commitment
to preserving religious freedom, the majority noted that s. 2(a)
of the Charter also protects freedom of religion and conscience,
and that BC's human rights legislation accommodates religious
institutions by permitting them to favour adherents of their own
religion in admissions policy. And, s. 93 of the Constitution
Act protects the existence of public religious education in some
provinces.
The majority noted the hardship caused to TWU and its students
by the BCCT's decision. The decision of the BCCT, it said,
places "a burden on members of a particular religious group
and in effect, is preventing them from expressing freely their
religious beliefs and associating to put them into practice. If
TWU does not abandon its Community Standards, it renounces
certification and full control of a teacher education program
permitting access to the public school system." This burden
was imposed by the BCCT without "concrete evidence that
such views … will have a detrimental effect on the learning
environment in public schools." That is, it was imposed
without sufficient reason.
The majority concluded that "freedom of religion is not
accommodated if the consequence of its exercise is the denial of
the right of full participation in society. Clearly, the
restriction on freedom of religion must be justified by evidence
that the exercise of this freedom of religion will, in the
circumstances of this case, have a detrimental impact on the
school system." Given that there was no such evidence,
"the BCCT acted on the basis of irrelevant considerations.
It therefore acted unfairly." The BCCT was ordered to
certify TWU's education program.
The Dissent
Justice L'Heureux-Dubé began from the position - contrary to
that taken by the majority - that the BCCT was not required to
deal with complex issues of human rights law, and has special
expertise in making decisions regarding the standards of the
teaching profession, which is all it was doing. Courts are only
at liberty to overrule a decision of the BCCT, she said, if it
is "patently unreasonable" rather than merely wrong.
As a result of this greater degree of deference, it was not
necessary for her to defend the BCCT's decision as correct, only
as not unreasonable.
With respect to the applicability of "Charter values",
Justice L'Heureux-Dubé agreed with the BCCT that of the
"values" in the Charter, only "equality" is
relevant to defining the public interest. "Public
interest", in this context, is limited to the ability of
teachers to perform their duties. The only duty in question is
the ability to provide a supportive atmosphere to homosexual
students. Other "Charter or human rights values such as
freedom of religion ... are not germane to the public interest
in ensuring that teachers have the requisites to foster
supportive classroom environments in public schools." The
BCCT, she said, is concerned only with risks to students and
need not (and indeed must not) consider extraneous factors such
as the religious freedom of teachers.
Justice L'Heureux-Dubé rejected TWU's argument "that one
can separate condemnation of the 'sexual sin' of 'homosexual
behaviour' from intolerance of those with homosexual or bisexual
orientations." It is not possible, she said, "to
condemn a practice so central to the identity of a protected and
vulnerable minority without thereby discriminating against its
members and affronting their human dignity and personhood."
It is simply not relevant, she said, that TWU teachers tendered
no evidence of any overt discrimination. The issue is not overt
discrimination, but whether TWU teachers have a "lack of
preparedness" to teach homosexual students. By signing the
code of conduct, she said, TWU students are complicit in an act
of discrimination. It is reasonable for the BCCT to conclude
that this act could give rise to a perception that a graduate of
TWU would be unable to be supportive of homosexual students. The
perceptions of TWU teachers by students, parents, other
teachers, and others is a factor "potentially affecting the
public school communities in which TWU graduates wish to
teach."
Lex View commentary:
Over the course of affirming the suitability of TWU's
education program, the Court corrects some common and
superficial misunderstandings about discrimination, pluralism
and religion in Canadian law. It corrects a widespread flaw in
the reading of contemporary Charter adjudication that has
consistently worked to the disadvantage of persons of religious
faith. The 8-1 majority judgment will need to be carefully
considered by all public bodies - and in particular by
quasi-judicial tribunals - who have now been reminded that
whatever their mandate, they must give due regard for the needs
of all within their jurisdiction. In particular, they have been
directed not to read "equality" as though it applies
only to one group so as to eclipse another (in this case by
making religion "invisible" in the manner advocated by
the dissenting judge and practised by the BCCT).
The BCCT is required to make accreditation decisions in the
"public interest". Much of this case turns on what the
"public interest" requires. The BCCT argued that the
"public interest" is limited to concern for the
equality interests of students, and excludes the question of the
religious freedom of teachers. The majority, however, strongly
affirmed the place of religious peoples and institutions in
Canada, and rightly pointed to the many aspects of Canadian law
that recognize this feature of Canadian society. The relevance
of the rights of its own members to its decision-making ought to
have been obvious to the BCCT from the outset, let alone through
three successive losses in court.
Were the BCCT to be consistent, its policy of disregarding
conflicting rights claims and evaluating policy according to a
single criteria - equality - would commit it to absurd results.
Provided that the reason for a policy was the promotion of
equality in the classroom, it would allow for the most draconian
restrictions on teachers' lives. It could justify conditions
reminiscent of a medieval university, where teachers would be
required to live on site, renounce having families, and be on 24
hour call - all if these conditions were found to have
beneficial effects for the classroom.
According to Justice L'Heureux-Dubé, these sorts of problems
should be left to human rights tribunals and the criminal law to
sort out after the fact. The rest of the Court, however,
determined that it is not too much to ask that a professional
governing body bear in mind the fundamental freedoms of its
members when making policy decisions.
The Charter and Pluralism
The BCCT was entirely justified in its concern to observe the
principles of equality underlying the Charter and human rights
law. But how is it that it ever could have thought that taking
into consideration one principle of Canadian law excused it from
observing the rest?
The idea that the Charter's equality provision provides the
whole story in interpreting a provision like "best
interests" has become distressingly familiar. It is a
simplistic reading of the Constitution that is at odds both with
a competent reading of Canadian law and a meaningful pluralism.
The Constitution as a whole provides a sketch of how Canadians
have chosen to order public life. As can be expected, it seeks
to accommodate the diverse ways in which persons can seek to
promote their own good and the good of others. Taking one
provision of the Constitution in isolation (and in this case,
only reading one constitutional document - the Charter) cannot
yield either an accurate reading of the Constitution as a whole
or the particular provision in question. As the Court has held
on many occasions, each section of the Charter must be defined
in relation to the document as a whole and placed in a context
that takes into account history, philosophy and religious
principles.
Thus, when it comes to constitutional law, the BCCT is not free
to pick and choose. It must take the whole of the Constitution
in its proper context. The BCCT's research ought to have been
supplemented with a reading of s. 15(1) and s. 2(a) of the
Charter - both of which protect aspects of religious freedom -
and s. 93 of the Constitution Act which entrenches religious
public education rights into the Constitution. Additionally, the
BCCT ought to have considered that the legislature of BC has
created an exemption in the Human Rights Code in favour of
religious institutions, and that it has on five separate
occasions passed bills in favour of TWU. This legislative record
suggests that the legislature "does not consider that
training with a Christian philosophy" is against the public
interest.
The BCCT (and worryingly, Justice L'Heureux-Dubé) found these
factors - each pointing to the polity's recognition of the
importance of accommodating religious communities - to be
irrelevant to the determination of the public interest. This was
the result of an inflation of the claims/needs of one select
group and the disparagement of the claims/needs of others.
Perhaps it seems churlish to complain about the losing arguments
and sole dissent in an 8-1 decision. Unfortunately, the
illiberal and partial view of "equality" pursued by
the BCCT is by no means unique to the BCCT. Similar reasoning -
not supported by a sound reading of Canadian law - can be found
in other governing bodies, in decisions of tribunals (see for
example, Brillinger v. Brockie, Lex
View 38.0), and reasons for judgment of lower court judges
(see the trial judgment of Chamberlain v. Surrey School Board,
Lex View
25.0, overturned by a unanimous Court of Appeal, Lex
View 40.0). Though it is a tremendous development to have
the Supreme Court of Canada so strongly oppose this misreading
of constitutional law, it is distressing to have even one judge
in dissent lending credibility to a line of thinking which
systematically devalues religious beliefs and practices.
Misunderstanding the Value of Religious Institutions
Where is it that so many cases involving religious peoples and
institutions go wrong? It seems likely that it is in the judge's
(or other decision-maker's) failure to understand the value of
religious practice or exercise of conscience in question. The
BCCT, for example, gave no indication that it understood the
purpose of the community standards code. Without properly
understanding its purpose, it could never properly understand
its value. And without understanding its value, it could not
have been in a good position to assess the hardship that it was
imposing on TWU and its students.
What, then, was the reason that TWU instituted its code of
conduct? What and whose interests is the community standards
code meant to serve?
The code is not intended as a manifesto of the administration to
defy the mores of wider society. The code is kept in place for
the benefit of students who go to TWU seeking a particular
religious environment that supports and encourages their desire
to mature in their Christian faith while gaining the benefit of
higher education. As long as a decision maker does not
appreciate the worth of the endeavour, and mistakes a pledge to
keep to an exacting standard of interpersonal morality for
animosity towards homosexuals, the value of TWU and other
religious institutions will be misunderstood.
The majority of the Court understood this point well; "TWU
is not for everybody; it is designed to address the needs of
people who share a number of religious convictions." If TWU
were to be remade so as to become attractive to homosexual and
lesbian students who wish to remain sexually active (or to
married heterosexuals who wish to act adulterously) and thus
placate the BCCT, it would cease to serve this purpose. If,
instead, it consented to having its students supervised by
another university, it would to this extent forfeit its mission.
For pluralism to be meaningful, it has to accommodate and
respect a wide range of valuable beliefs and practices, not just
those of the majority.
The decision also stands as an important affirmation of the
place of religious exemption provisions in human rights
legislation. The majority judges commented on the presence of
such a provision (common in most human rights legislation) and
noted that it indicates a broad social acceptance of respect for
religion and diversity in society.
The Court has, in this decision, set the stage for a richer
vision of "equality" and "discrimination"
than that argued for by the BCCT and rejected by 8 out of the 9
justices of the Supreme Court. It remains to be seen how the
respect for conscience and religion fair when individual
teachers refuse to perform acts that they consider supportive of
homosexual or lesbian conduct. In light of this decision,
religious groups retain the ability to affirm the distinction
between respect for homosexual or lesbian persons and rejection
of homosexual or lesbian conduct. The majority did not join with
Justice L'Heureux-Dubé in her lone rejection of this
well-established principle. This is a positive development since
a forced merger of respect for homosexual and lesbian conduct
with respect for human dignity, would go against the mainstream
views of every major world religion.
In light of this decision and that commented upon earlier in Chamberlain
v. Surrey School Board, Lex
View 25.0, public educators and bodies such as the BCCT
should reflect upon what matters are proper for the school
curriculum in a pluralistic and multicultural society. The
principles emerging from the most recent decisions strongly
suggest that attempts to coerce an acceptance of homosexual and
lesbian conduct - as opposed to requiring respect for persons as
persons - might well be outside the bounds of public education.
Despite Justice L'Heureux-Dubé's impassioned protest to the
contrary, on this issue the maxim that one can "love the
sinner but reject the sin" remains the reality in Canada
and has not been found to breach the provisions of Canada's
constitutional arrangements.
Lex View was written and edited by:
Iain T. Benson, B.A. (Hons.), M.A. (Cantab.), LL.B.
of the British Columbia Bar
Brad Miller, B.Comm., LL.B, LL.M. (magna cum laude)
of the British Columbia Bar.
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Copyright © 2001 Iain Benson and Brad Miller
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