Institutional Religious Freedom Rights? Uncertainty Remains Following Law Society of British Columbia v. Trinity Western University

I. INTRODUCTION

The Supreme Court of Canada (“SCC”) has yet to give a definitive answer to the question of whether institutions, corporations, and other entities possess freedom of religion rights under s. 2(a) of Canadian Charter of Rights and Freedoms.¹ Central to this issue is the profoundly personal yet inherently communal nature of religion.

The topic of institutional rights recently arose in a pair of companion judgements dealing with the decisions of the Law Society of Upper Canada and the Law Society of British Columbia (“Law Societies”) to deny approval of a proposed law school at Trinity Western University (“TWU”).² In these two cases, the Court grappled with several issues, including the scope of Law Societies’ statutory mandates, the nature of the “public interest,” the appropriateness of the framework set out in Doré v. Barreau du Québec³ and Loyola High School v. Quebec (Attorney General),⁴ and infringement of religious freedom. This comment will focus exclusively on the issue of corporate and institutional standing under s. 2(a) of the Charter.

II. TWU

A preliminary issue to the s. 2(a) analyses in Law Society of British Columbia v. Trinity Western University and Trinity Western University v. Law Society of Upper Canada was whether TWU, qua institution, had rights under s. 2(a) of the Charter. Each of the four sets of reasons took a different approach to this issue. The majority found it unnecessary to answer the question because the Law Societies’ decisions engaged the religious freedom of members of the TWU community.⁵ Chief Justice McLachlin agreed with the majority on this point but did not directly address the issue of institutional rights.⁶ The dissent also found that the rights holder in this case was the TWU community⁷ but noted that “ensuring full protection for the ‘constitutionally protected communal aspects of…religious beliefs and practices’ requires more than simply aggregating individual rights claims under the amorphous umbrella of an institution’s ‘community.’” ⁸ Finally, Justice Rowe declined to find that TWU had s. 2(a) rights as an institution, reasoning that the communal aspect of religious freedom is premised on the choices of individual believers.⁹ He also noted that, even if TWU did possess rights as an institution, its rights would extend no further than the rights of the individual members.¹⁰

III. LOYOLA HIGH SCHOOL

The LSBC and LSUC cases are not the first to deal with the issue of institutional religious freedom rights. In Loyola, a private, Catholic high school argued that its own religious freedom was infringed by the Minister of Education’s decision not to grant it an exemption from an Ethics and Religious Culture Program, which required religious beliefs to be taught from a neutral perspective.¹¹ In that case, Justice Abella, writing for the majority, also found it unnecessary to decide whether institutions or corporations enjoy religious freedom rights since the Minister was required to make decisions in a way that respected the Charter rights of the members of the Loyola community.¹² However, Abella J. added the following: “I recognize that individuals may sometimes require a legal entity in order to give effect to the constitutionally protected communal aspects of their religious beliefs and practice, such as the transmission of their faith.”¹³ The minority went even further and found that the high school did possess its own religious freedom rights.¹⁴ It summarized its finding as follows:

On the submissions before us, and given the collective aspect of religious freedom long established in our jurisprudence, we conclude that an organization meets the requirements for s. 2(a) protection if (1) it is constituted primarily for religious purposes, and (2) its operation accords with these religious purposes.¹⁵

In reaching this conclusion, the minority made a compelling argument by relying on the communal aspects of religion and citing support for institutional religious protections in foreign jurisprudence and international human rights instruments.¹⁶ The minority also noted that this interpretation was consistent with the application of Charter protections for ss. 2(b), 8, and 11(b).¹⁷ However, this proposed formulation of the requirements for claiming s. 2(a) rights as an organization notably excludes corporations that exist for non-religious purposes.

IV. CHALLENGING UNCONSTITUTIONAL LAWS

While it remains unclear whether there are circumstances in which corporations can claim s. 2(a) rights of their own, they do have the ability to challenge the constitutionality of laws under which they are being prosecuted. The reasoning is found in the principle that no one can be convicted of an unconstitutional offence.¹⁸ In Big M, Justice Dickson (as he then was) stated the following:

The argument that the respondent, by reason of being a corporation, is incapable of holding religious belief and therefore incapable of claiming rights under s. 2(a) of the Charter, confuses the nature of this appeal. A law which itself infringes religious freedom is, by that reason alone, inconsistent with s. 2(a) of the Charter and it matters not whether the accused is a Christian, Jew, Muslim, Hindu, Buddhist, atheist, agnostic or whether an individual or a corporation. It is the nature of the law, not the status of the accused, that is in issue.¹⁹

Where a corporation is not accused of an offence, its status in relation to s. 2(a) could potentially be significant. However, even if a corporation does have religious freedom rights, its claim of infringement under s. 2(a) would fail if it is unable to show that it sincerely believes in a practice or belief that has a nexus with religion and that the state interfered, in a manner that is more than trivial or insubstantial, with its ability to act in accordance with that belief or practice.²⁰

V. CONCLUSION

The recent LSBC and LSUP cases have brought renewed attention to the issue of whether institutions can claim religious freedom protections. Comments by the dissent in LSBC and the minority in Loyola indicate that the Court may be prepared to find s. 2(a) protection for religious organizations. Furthermore, it is clear that corporations can challenge the constitutionality of laws under which they are being prosecuted. However, given the religious purposes requirements suggested by the minority in Loyola, the Court’s general reluctance to decide issues on the basis of institutional rights under s. 2(a), and the prerequisite of demonstrating a sincerely held belief, it seems unlikely that the SCC will find that non-religious corporations possess religious freedom rights of their own.

Religion is deeply personal, and every individual will have his or her own approach to theology, but it also involves communal relationships. Questions remain as to whether the religious freedom rights of individuals can sufficiently protect the religious values, interests, and relationships of the organizations to which they belong. Although the SCC has not yet clearly found that corporations or institutions enjoy constitutional protection of religious freedom in their own right, the door certainly remains open.

---

^* BE (Saskatchewan), JD Candidate (Saskatchewan).

¹ Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

² Law Society of British Columbia v Trinity Western University, 2018 SCC 32, [2018] 2 SCR 293 [LSBC]; Trinity Western University v Law Society of Upper Canada, 2018 SCC 33, [2018] 2 SCR 453 [LSUC].

³ 2012 SCC 12, [2012] 1 SCR 395.

⁴ 2015 SCC 12, [2015] 1 SCR 613 [Loyola].

⁵ See LSBC, supra note 2 at para 61; LSUC, supra note 2 at para 33.

⁶ See LSBC, supra note 2 at para 120; LSUC, supra note 2 at para 46.

⁷ See LSBC, supra note 2 at para 315; LSUC, supra note 2 at para 80.

⁸ LSBC, supra note 2 at para 315, citing Loyola, supra note 4 at paras 33, 130.

⁹ See LSBC, supra note 2 at para 219; LSUC, supra note 2 at para 50.

¹⁰ See LSBC, supra note 2 at para 219.

¹¹ See Loyola, supra note 4 at paras 1, 33.

¹² See ibid at para 34.

¹³ Ibid at para 33.

¹⁴ See ibid at para 91.

¹⁵ Ibid at para 100.

¹⁶ See ibid at paras 96-98.

¹⁷ See ibid at para 95.

¹⁸ See e.g. R v Big M Drug Mart Ltd, [1985] 1 SCR 295 at 313, 18 DLR (4th) 321 [Big M].

¹⁹ Ibid at 314.

²⁰ See Syndicat Northcrest v Amselem, 2004 SCC 47 at para 65, [2004] 2 SCR 551; Multani v Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6 at para 34, [2006] 1 SCR 256; Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54 at para 68, [2017] 2 SCR 386.