Grappling with the institutional dimensions of Trinity Western University’s religious freedom claim

This guest post was contributed by Kathryn Chan. Kathryn Chan is an Assistant Professor of Law at the Faculty of Law, University of Victoria, where she teaches Constitutional Law, Administrative Law, and Non-profit Sector Law.

We have recently reached the end of the penultimate round of court cases involving Trinity Western University (“TWU”) and the various provincial law societies that have declined to accredit its proposed faculty of law. The well-known conflict revolves around TWU’s “Community Covenant,” which requires, among other things, that “members” of the TWU community refrain from same-sex sexual intimacy. The law societies of three common law provinces—British Columbia, Ontario, and Nova Scotia—declined in 2014 to accredit the law school for reasons related to the discriminatory nature of the Covenant. TWU sought judicial review of all three decisions, arguing, among other things, that they unreasonably infringed the religious freedom of TWU. The Ontario courts sided with their law society, while the Nova Scotia courts sided with TWU. This month, a five-member panel of the Court of Appeal for British Columbia also decided in favour of TWU, setting the stage for a showdown at the nation’s highest court.

The latest decision in the TWU saga contains a number of statements that are likely to be challenged on appeal. Objection will almost certainly be taken to the Court of Appeal’s assertion that regulatory approval of TWU would only ‘minimally’ impact the access of LGBTQI persons to law school, (para 191) and to the veiled suggestion that the Law Society of British Columbia may have lacked the expertise or the independence to properly weigh the Charter rights at issue (para 82). There will be argument on the procedures the Benchers adopted, and the standard of review applicable to their decision.

These are all important issues. However, I believe that as the dispute over TWU’s proposed law school makes its way towards the Supreme Court of Canada, we need to also refocus our attention on the question at its heart: what is the scope of the institutional autonomy to which TWU is entitled under section 2(a) of the Canadian Charter of Rights and Freedoms? This is a difficult question, and we can only do it justice by engaging more seriously with the legal nature of TWU. For like the law societies, TWU has objects, duties, powers, and decision-making procedures that are relevant to its position on the Community Covenant. It is not solely (or perhaps even) a “private institution”: it is a university, a not-for-profit society continued by private Act of the legislature, a charitable corporation with a written governance code, and a registered charity under the federal Income Tax Act, RSC 1985 c 1 (5th Supp) [Income Tax Act]. All of these legal statuses contribute to TWU’s legal personality, endowing it with rights and duties and providing context for its religious freedom claim.

Grappling with TWU’s corporate personality is particularly important because of the degree of doctrinal uncertainty around TWU’s primary Charter argument. It is not presently clear whether corporations even enjoy religious freedom protections in Canada, though recent case law suggests that the Supreme Court of Canada is leaning that way. In the 2015 Loyola High School v Quebec (Attorney General) decision, three members of the Supreme Court declared themselves willing to recognize the religious freedom of a “non-profit religious corporation” constituted for the purpose of offering a Jesuit education to Catholic children in Quebec. These minority judges also proposed a general test for an institutional religious freedom claim, stating that an organization should meet the requirements for section 2(a) protection if “(1) it is constituted primarily for religious purposes, and (2) its operation accords with these religious purposes” (para 100). However, the majority of the Court declined to decide whether corporations “enjoy religious freedom in their own right under the Charter”, since the Minister was in any event bound to exercise her discretion in a way that respected the religious freedom of the members of the Loyola community who wished to offer or receive a Catholic education. Although we have a proposed test for institutional religious freedom, therefore, there is not yet a clear consensus on the central and logically prior question of whether institutions can independently claim the protection of section 2(a).

Because the status of corporate religious freedom claims remains uncertain in Canada, we haven’t yet grappled with the difficult questions that such claims raise. For example:

• What does it mean for a corporation to enjoy religious freedom? Do corporations have rights and freedoms distinct from those of the natural persons who compose them, or do they simply represent the common individual interests of their members?

• To what class of corporations, and what class of corporate acts, does religious freedom extend? What criteria should be applied to determine the boundaries of institutional religious freedom?

• How should the rights of corporations be measured against the rights of individuals in cases where the two collide?

TWU v the Law Societies has provided us with a valuable opportunity to start thinking through these difficult issues in the context of a concrete dispute. If we are to do so, however, we need to look more closely at TWU’s corporate personality and the obligations and privileges it enjoys. There are at least three features of this personality that, in my view, are relevant to TWU’s religious freedom claim: its sole corporate object, its small and closed membership, and its obligation to act “for the public benefit.” I discuss each of these features of TWU more thoroughly in my paper “Corporate and Trust Law Dimensions of the Trinity Western University Law School Debate.”

(1) TWU has a sole corporate object

Pursuant to section 3(2) of the Trinity Western University Act, TWU has a sole corporate object:

to “provide for people of any race, colour, or creed, university education in the arts and sciences with an underlying philosophy and viewpoint that is Christian.”

Section 3(2) has not figured prominently in the TWU proceedings so far. Several of the judgments do not mention the provision at all, appearing instead to take TWU’s descriptions of itself as a “private religious educational community” and “an educational arm of the Evangelical Christian Church” at face value. The courts’ tendency to ignore TWU’s corporate object and jump immediately to the merits of its religious freedom claim stands in striking contrast to those courts’ careful parsing of the enabling statutes of the provincial law societies. From the perspective of a non-profit or trust lawyer, the juxtaposition is jarring. For just as the objects clauses in the various Legal Profession Acts set the boundaries of lawful action for the various law societies, so section 3(2) sets the boundaries of lawful action for TWU. The governors of TWU can use their powers only to further this object, and any act directing those powers towards another end will be void.

If we accept that section 3(2) provides the baseline against which all of TWU’s actions and statements must be measured, we should also consider its relationship to TWU’s religious freedom claim. I begin this task in my longer piece, offering three related reflections. First, in light of TWU’s corporate object, it may be appropriate to characterize the governors’ legal defence of the Community Covenant as a fiduciary obligation, and to consider the implications of that obligation. Second, in light of TWU’s corporate object, it is not certain that TWU would meet the Loyola minority’s threshold test for an institutional religious freedom claim. Third, in light of TWU’s corporate object, we may need to revisit the Supreme Court of Canada’s earlier suggestion that TWU fits within the “group rights” exemption of the BC Human Rights Code. For it is not immediately obvious how an institution whose sole corporate purpose is to provide university education “for people of any race, colour, or creed” could have as a primary purpose the promotion of the educational needs of Evangelical Christians, nor how it could refuse to educate LGBTQI individuals who embrace their sexuality in the light of their faith.

(2) TWU has a very small membership

The second aspect of TWU’s corporate personality that merits reflection in the context of the ongoing dispute over the proposed TWU law school is that TWU has very few “members” in the legal sense of the term. In a non-profit corporation, members play a role analogous to the shareholders of a for-profit corporation: they have important legal rights and generally control the composition of the Board. However, TWU’s bylaws stipulate that the only members of TWU are the members of its Board of Governors, and faculty and administrative staff are specifically excluded from this Board. TWU’s closely-held governance structure is relevant to the dispute over the Community Covenant, in part because recent case law from Europe and the United States suggests that religious corporations possess religious freedom not in their own right but on behalf of those who comprise and control them. I argue in my longer piece that TWU’s closely held membership likely strengthens its religious freedom claim. However, given TWU’s corporate structure, and the evidence of its intention to exclude its academic members from any direct role in its governance, we need to be cautious in assessing which “members” of the TWU community the institution can be understood to represent.

(3) TWU must act for the public benefit

The third aspect of TWU’s corporate personality that merits reflection is that TWU must operate “for the public benefit.” This is a criterion that flows (as a corporate law matter) from TWU’s status as a charitable corporation and (as a tax law matter) from its status as a registered charity under the Income Tax Act. The public benefit criterion is relevant to the dispute over the Community Covenant because recent case law from England and Wales suggests that the public benefit criterion limits the autonomy of charities to target their charitable projects at persons sharing a protected characteristic, such as sexual orientation or creed. An institution that engages in unlawful discrimination contrary to that jurisdiction’s Equality Act cannot be a charity. In my longer analysis I suggest that we need to think hard about whether we want to follow England and Wales’ move to align the criteria for charitable status with human rights law. Such alignment could have profound consequences for Canadian charities, particularly because our provincial human rights standards are so variable. I also challenge the near-universal practice of describing TWU as a “private” entity, arguing that TWU’s charitable status endows the institution with significant public dimensions that should affect the treatment of its religious freedom claim.

As we approach the final round of the TWU litigation, it is tempting to want to simplify the dispute, rather than complicating it by engaging with TWU’s corporate structure and charitable status. If we want to engage seriously with the institutional dimensions of TWU’s religious freedom claim, however, we must be attentive to the legal personality of the institution that has brought it, and the rights and obligations it enjoys.