Canada: Factum of the Intervener, Lawyers’ Rights Watch Canada in TWU Case | Factum

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Executive Summary

Factum of the Intervener Lawyers’ Rights Watch Canada

In the appeals to the Supreme Court of Canada of

Trinity Western University v. The Law Society of Upper Canada


The Law Society of BC v Trinity Western University

 Lawyers’ Rights Watch Canada identifies the international human rights law (IHRL) applicable to the questions before the court and submits that IHRL binding on Canada obliges the Law Societies of Upper Canada and British Columbia to refuse accreditation for the law school proposed by Trinity Western University (TWU) on the basis of the discriminatory Community Covenant.

The TWU Covenant violates rights under IHRL to:

  1. equality and non-discrimination;[1]
  2. privacy and family life;[2]
  3. to freely hold and practice in private beliefs forbidden by Covenant;[3]
  4. Freedom from coercion that would impair the right to have or adopt a belief; and,
  5. to equal and non-discriminatory access to education[4].

IHRL prohibits, and imposes duties on states and public bodies such as the Law Societies, to protect and prevent, infringement of these rights, by both state and non-state actors. (factum paras 6, 12)

Canada’s obligations to protect and prevent infringement of these rights arises from several human rights treaties to which Canada is a party and from membership in the United Nations and the Organization of American States.[5] (factum paragraph 8)

Rights to equality and non-discrimination under IHRL have entered the realm of jus cogens, and are considered fundamental, overriding principles, from which no derogation is ever permitted.  (factum, paras. 8, 13)

Rights to privacy and family life are interpreted broadly to encompass rights to enter into relationships, form family units, engage in sexual intimacy and conduct family life, exempt and immune from interference by third parties or public authorities (ICCPR Art. 17(1) and ADRDM Art. V) (factum paras. 15, 16)

The UN Human Rights Committee has affirmed that “sex” in the International Covenant on Civil and Political Rights includes sexual orientation and that sex in private is protected by the privacy rights guarantees. The Committee has determined that prohibition of homosexual acts violates rights to both equality and non-discrimination and to privacy, irrespective of non-enforcement. (ICCPR Articles 2(1) and 17(1), factum, para. 11)

The Basic Principles on the Role of Lawyers, accepted as an authoritative statement of state duties to enable and maintain properly functioning legal professions, specifically requires non-discriminatory entry to the legal profession and prohibits discrimination on the basis of sex. (Basic Principles Art. 10, factum para. 20))

The right to hold a religious or non-religious belief is an absolute right and may not be limited under any circumstances (ICCPR, Art. 18 (1), 4 (2), factum para 18). Similarly freedom from coercion that would impair the right to have or adopt a belief of choice is an absolute right. (ICCPR Art. 18(2), 4(2), factum, para. 18 and para. 10 on mirror provisions in the ECHR, para. 9 on duty to prevent)

However, under IHRL, not every act inspired by religious beliefs is protected (factum para. 21). The right to manifest a belief is subject to such limitations as are necessary to protect the fundamental rights of others such as those restricted by the TWU Covenant  Necessary has been interpreted as encompassing limitations that address a pressing social need. (ICCPR Art. 18(3), factum para. 21.and paras.  22 to 25 re: limitations).

Bodies of the UN and the Organization of American States recognize a pressing social need to give special attention to historically disadvantaged members of LGBTQ communities and have identified state duties to:

  1. eliminate barriers based on sexual orientation;
  2. prevent interference with privacy and family life; and,
  3. ensure equal access to education. (factum para. 14)

The decisions of the Law Societies to refuse accreditation of the law school proposed by Trinity Western University were necessary to achieve these goals and to comply with Canada’s IHRL duties to protect and prevent infringement of the impacted rights by the TWU Covenant. (factum para. 29)

The decisions left unimpaired rights of (notional) TWU law school students to both hold evangelical Christian beliefs and to manifest beliefs “by worship and practice or by teaching and dissemination.”[6] (factum para. 30)

The decisions also addressed the pressing social need to promote the rule of law by recognizing and furthering equality of and for all persons, by preventing infringement of rights to privacy and family life and by preserving equal non-discriminatory access to the legal education by only accrediting law schools that operate in compliance with Canadian and IHRL.

[1] Guaranteed by the ICCPR Art. 2(1), 3, 14 (1), 26, UDHR Art. 1, 2 &7;  ICESCR, Art. 2(2) & 3; CERD, Art. 5; ADRDM, Art. II and XII

[2] Guaranteed by ICCPR Article 17(1), ADRDM Art. V

[3] Freedom of thought, conscience and religion in guaranteed by the ICCPR Article 18(1) Freedom from coercion is guaranteed by Art. 18(2), both of which are designated as non-derogable by the ICCPR Art. 4(2). Art. 18(3) allows restrictions of the right to manifest religion or belief. ADHRM, Art..

[4] Guaranteed by the ICESCR Art. 13(2)(c)

[5] International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic Social and Cultural Rights (ICESCR), Convention on Elimination of all Forms of Discrimination (CERD), Convention to Eliminate Discrimination against Women (CEDAW), the American Declaration on the Rights and Duties of Man (ADRDM) and the Universal Declaration of Human Rights (UDHR)

[6] Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54 (CanLII) at para. 62 citing Big M Drug Mart and at para. 71.