COURT OF APPEAL FOR BRITISH COLUMBIA

Citation: Trinity Western University v. The Law Society of British Columbia, 2016 BCCA 423

Date: 20161101

Docket: CA43367

Between:

Trinity Western University and Brayden Volkenant

Respondents

(Petitioners)

And

The Law Society of British Columbia

Appellant

(Respondent)

And

Association for Reformed Political Action (ARPA) Canada, Canadian Council of Christian Charities, Christian Legal Fellowship, Evangelical Fellowship of Canada, Christian Higher Education Canada, Justice Centre for Constitutional Freedoms, Roman Catholic Archdiocese of Vancouver, Catholic Civil Rights League, Faith and Freedom Alliance, Seventh-Day Adventist Church in Canada, West Coast Women’s Legal Education and Action Fund, Canadian Secular Alliance, British Columbia Humanist Association, The Advocates’ Society, Outlaws UBC, Outlaws UVic, Outlaws TRU and QMUNITY

Intervenors

Before: The Honourable Chief Justice Bauman The Honourable Madam Justice Newbury The Honourable Mr. Justice Groberman The Honourable Mr. Justice Willcock The Honourable Madam Justice Fenlon

On appeal from: An order of the Supreme Court of British Columbia, dated December 10, 2015 (Trinity Western University v. The Law Society of British Columbia, 2015 BCSC 2326, Vancouver Docket No. 149837).





Counsel for the Appellant: P.A. Gall, Q.C.

D.R. Munroe, Q.C. Counsel for the Respondents: K.L. Boonstra

K. Sawatsky

J.B. Maryniuk Counsel for the Intervenor, Association for Reformed Political Action (ARPA) Canada E.L. Vandergriendt

A. Schutten Counsel for the Intervenor, Canadian Council of Christian Charities B.W. Bussey Counsel for the Intervenor, Christian Legal Fellowship D.B.M. Ross Counsel for the Intervenors, Evangelical Fellowship of Canada and Christian Higher Education Canada G. Trotter Counsel for the Intervenor, Justice Centre for Constitutional Freedoms R.J. Cameron Counsel for the Intervenors, Roman Catholic Archdiocese of Vancouver, Catholic Civil Rights League, and Faith and Freedom Alliance G.C. Allison

M. Wolfson, Articled Student Counsel for the Intervenor, Seventh-Day Adventist Church in Canada G.D. Chipeur, Q.C. Counsel for the Intervenor, West Coast Women’s Legal Education and Action Fund J. Winteringham, Q.C.

R. Trask

J.R. Lithwick Counsel for the Intervenors, Canadian Secular Alliance, and British Columbia Humanist Association T. Dickson

C. George Counsel for the Intervenor, The Advocates’ Society M. Pongracic-Speier Counsel for the Intervenors, Outlaws UBC, Outlaws UVic, Outlaws TRU and QMUNITY (the “LGBTQ Coalition”) E.R.S. Sigurdson

K. Brooks Place and Date of Hearing: Vancouver, British Columbia June 1, 2, and 3, 2016 Written Submissions Received July 18, 25, and 29, 2016 Place and Date of Judgment: Vancouver, British Columbia November 1, 2016

Written Reasons of the Court

Summary:

The Law Society decided not to approve a law school at TWU because students attending TWU must sign a Community Covenant which does not recognize same-sex marriage. TWU sought judicial review. The decision was set aside by the chambers judge. The Law Society appealed. Held: Appeal dismissed.

The issue on appeal is whether the Law Society met its statutory duty to reasonably balance the conflicting Charter rights engaged by its decision: the sexual orientation equality rights of LGBTQ persons and the religious freedom and rights of association of evangelical Christians. The Benchers initially voted to approve TWU’s law school. That decision was met with a backlash from members of the Law Society who viewed it as endorsement of discrimination against LGBTQ persons. The Benchers decided to hold a referendum and to be bound by the outcome. A majority of lawyers voted against approval. The Benchers then reversed their earlier position and passed a resolution not to approve TWU’s law school.

In doing so, the Benchers abdicated their responsibility to make the decision entrusted to them by the Legislature. They also failed to weigh the impact of the decision on the rights engaged. It was not open to the Benchers to simply adopt the decision preferred by the majority. The impact on Charter rights must be assessed concretely, based on evidence and not perception.

The evidence before the Law Society demonstrated that while LGBTQ students would be unlikely to access the 60 additional law school places at TWU’s law school if it were approved, the overall impact on access to legal education and hence to the profession would be minimal. Some students who would otherwise have occupied the remaining 2,500 law school seats would choose to attend TWU, resulting in more options for all students. Further, denying approval would not enhance access to law school for LGBTQ students.

In contrast, a decision not to approve TWU’s law school would have a severe impact on TWU’s rights. The qualifications of students graduating from TWU’s law program would not be recognized and graduates would not be able to apply to practise law in British Columbia. The practical effect of non-approval is that TWU cannot operate a law school and cannot therefore exercise fundamental religious and associative rights that would otherwise be guaranteed under s. 2 of the Charter.

In a diverse and pluralistic society, government regulatory approval of entities with differing beliefs is a reflection of state neutrality. It is not an endorsement of a group’s beliefs.

The Law Society’s decision not to approve TWU’s law school is unreasonable because it limits the right to freedom of religion in a disproportionate way — significantly more than is reasonably necessary to meet the Law Society’s public interest objective.

Reasons for Judgment of the Court:

[1] This case raises important issues about tolerance and respect for differences in a diverse and pluralistic society. Trinity Western University (TWU) wishes to operate a law school. The Law Society of British Columbia (the Law Society) refused to approve TWU’s proposed law school because TWU’s Community Covenant does not recognize same-sex marriage.

[2] The question before the Court is whether the Law Society’s decision was reasonable. Answering that question requires us to consider conflicting and strongly-held views, and to reconcile competing rights. On one side are the rights, freedoms and aspirations of lesbian, gay, bisexual, transgendered and queer (LGBTQ) persons and their place in a progressive and tolerant society; on the other are the religious freedom and rights of association of evangelical Christians who sincerely hold the beliefs described in the Covenant and nurtured by TWU.

[3] In a speech given in 2002, Chief Justice McLachlin spoke of the “clash of commitments” in our country between the “prevailing ethos” of the rule of law and the claims of religion (“Freedom of Religion and the Rule of Law” (René Cassin Lecture, McGill University, 11 October 2002), published in Douglas Farrow, ed., Recognizing Religion in a Secular Society: Essays in Pluralism, Religion, and Public Policy (McGill-Queen’s University Press, 2004). The Chief Justice called this a “dialectic of normative commitments” at 21-22:

What is good, true and just in religion will not always comport with the law’s view of the matter, nor will society at large always properly respect conscientious adherence to alternate authorities and divergent normative, or ethical, commitments. Where this is so, two comprehensive worldviews collide. It is at this point that the question of law’s treatment of religion becomes truly exigent. The authority of each is internally unassailable. What is more, both lay some claim to the whole of human experience. To which system should the subject adhere? How can the rule of law accommodate a worldview and ethos that asserts its own superior authority and unbounded scope? There seems to be no way in which to reconcile this clash; yet these clashes do occur in a society dedicated to protecting religion, and a liberal state must find some way of reconciling these competing commitments.

[4] For reasons explained in greater detail below, we have determined that the Law Society’s decision not to approve TWU’s law school was unreasonable.

[5] TWU is a private, evangelical Christian, postsecondary institution incorporated by act of the Provincial Legislature in 1969: An Act Respecting Trinity Western University, S.B.C. 1969, c. 44 (as amended). It is the successor to a postsecondary institution that has been in existence since 1962.

[6] In June 2012 TWU submitted a proposal to establish a law school with a Juris Doctor degree program to the Federation of Law Societies of Canada (the Federation) and to the British Columbia Ministry of Advanced Education for their approval. The proposal contemplated the enrolment of 60 students in the school’s first year of operation, which was then contemplated to be the 2016-17 academic year, increasing to a full complement of 170 students over three years. TWU also advised the Canadian Council of Law Deans, the British Columbia law deans and the Law Society of its proposal.

[7] The Federation established a special advisory committee to provide it with advice on one issue — TWU’s requirement that students enter into a community covenant (the Covenant) regulating their conduct as a condition of admission. After considering submissions, that committee concluded there was no valid public interest reason to refuse approval of the TWU proposal.

[8] On December 16, 2013 the Federation granted “preliminary approval” of the proposal and the establishment of TWU’s law school. The Federation concluded that the proposal was “comprehensive and is designed to ensure the students acquire each competency included in the national requirement”. The Federation expressly considered whether the religious policy underlying the Covenant would constrain appropriate teaching. In approving the proposal the Federation took into account TWU’s statements that it was committed to fully and properly addressing ethics and professionalism; that it recognized and acknowledged its duty to teach equality and meet its public obligations with respect to promulgating non-discriminatory principles in its teaching of substantive law, ethics and professionalism; and that it acknowledged that human rights laws and s. 15 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982 protect against discrimination on the basis of sexual orientation.

[9] The Minister of Advanced Education comprehensively reviewed the TWU proposal pursuant to the Degree Authorization Act, S.B.C. 2002, c. 24. The proposal was submitted to the Degree Quality Assessment Board and reviewed by an expert panel consisting of academics including former deans of the law faculties of the University of Alberta, Queen’s, UBC and Windsor. On April 17, 2013 the expert review panel provided a report to the Ministry and, in confidence, to TWU. On December 17, 2013 the Minister granted approval to the TWU Juris Doctor program.

[10] Upon being advised that the Federation had granted preliminary approval of TWU’s proposal, and upon taking legal advice, the Benchers of the Law Society gave notice to the profession on January 24, 2014 of their intention to consider the following resolution at their April 11, 2014 meeting:

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 Faculty of Law of Trinity Western University is not an approved faculty of law.

[11] Rule 2-27(4.1) (now Rule 2-54(3)) was in that part of the Law Society Rules that addresses admission to the practice of law:

2-54 (1) An applicant may apply for enrolment in the admission program at any time by delivering to the Executive Director the following:

(a) a completed application for enrolment in a form approved by the Credentials Committee, including a written consent for the release of relevant information to the Society;

(b) proof of academic qualification under subrule (2);

(c) an articling agreement stating a proposed enrolment start date not less than 30 days from the date that the application is received by the Executive Director;

(d) other documents or information that the Credentials Committee may reasonably require;

(e) the application fee specified in Schedule 1.

(2) Each of the following constitutes academic qualification under this rule:

(a) successful completion of the requirements for a bachelor of laws or the equivalent degree from an approved common law faculty of law in a Canadian university ;

(b) a Certificate of Qualification issued under the authority of the Federation of Law Societies of Canada;

(c) approval by the Credentials Committee of the qualifications of a full-time lecturer at the faculty of law of a university in British Columbia.

(3) For the purposes of this rule, a common law faculty of law is approved if it has been approved by the Federation of Law Societies of Canada unless the Benchers adopt a resolution declaring that it is not or has ceased to be an approved faculty of law.

[Emphasis added.]

[12] Prior to its consideration of that resolution, the Law Society received from TWU a consolidated proposal for the establishment of the law school, a brochure containing information about TWU, and a complete copy of the Covenant.

[13] The Covenant is a five-page document which includes the following relevant provisions:

Trinity Western University (TWU) is a Christian University of the liberal arts, sciences and professional studies with a vision for developing people of high competence and exemplary character who distinguish themselves as leaders in the marketplaces of life.

…

The University’s mission, core values, curriculum and community life are formed by a firm commitment to the person and work of Jesus Christ as declared in the Bible. This identity and allegiance shapes an educational community in which members pursue truth and excellence with grace and diligence, treat people and ideas with charity and respect, think critically and constructively about complex issues, and willingly respond to the world’s most profound needs and greatest opportunities.

…

The community covenant is a solemn pledge in which members place themselves under obligations on the part of the institution to its members, the members to the institution, and the members to one another. In making this pledge, members enter into a contractual agreement and a relational bond. By doing so, members accept reciprocal benefits and mutual responsibilities, and strive to achieve respectful and purposeful unity that aims for the advancement of all, recognizing the diversity of viewpoints, life journeys, stages of maturity, and roles within the TWU community. It is vital that each person who accepts the invitation to become a member of the TWU community carefully considers and sincerely embraces this community covenant.

…

The TWU community covenant involves a commitment on the part of all members to embody attitudes and to practise actions identified in the Bible as virtues, and to avoid those portrayed as destructive. Members of the TWU community, therefore, commit themselves to:

· cultivate Christian virtues, such as love, joy, peace, patience, kindness, goodness, faithfulness, gentleness, self-control, compassion, humility, forgiveness, peacemaking, mercy and justice

· live exemplary lives characterized by honesty, civility, truthfulness, generosity and integrity

…

· treat all persons with respect and dignity, and uphold their God-given worth from conception to death

…

· observe modesty, purity and appropriate intimacy in all relationships, reserve sexual expressions of intimacy for marriage, and within marriage take every reasonable step to resolve conflict and avoid divorce

· exercise careful judgment in all lifestyle choices, and take responsibility for personal choices and their impact on others

…

In keeping with biblical and TWU ideals, community members voluntarily abstain from the following actions:

· communication that is destructive to TWU community life and inter–personal relationships, including gossip, slander, vulgar/obscene language, and prejudice

…

· sexual intimacy that violates the sacredness of marriage between a man and a woman

…

People face significant challenges in practicing biblical sexual health within a highly sexualized culture. A biblical view of sexuality holds that a person’s decisions regarding his or her body are physically, spiritually and emotionally inseparable. Such decisions affect a person’s ability to live out God’s intention for wholeness in relationship to God, to one’s (future) spouse, to others in the community, and to oneself. Further, according to the Bible, sexual intimacy is reserved for marriage between one man and one woman, and within that marriage bond it is God’s intention that it be enjoyed as a means for marital intimacy and procreation. Honouring and upholding these principles, members of the TWU community strive for purity of thought and relationship, respectful modesty, personal responsibility for actions taken, and avoidance of contexts where temptation to compromise would be particularly strong.

[Footnotes omitted.]

[14] In support of the provisions relating to sexual behaviour, the Covenant refers in footnotes to passages from the Bible in support of the drafters’ conception of virtuous and destructive practices.

[15] We note that it is the Covenant’s definition of marriage “between a man and a woman” that is in issue in these proceedings. The Covenant prohibits all expressions of sexual intimacy outside of marriage, regardless of sexual orientation; in that respect, all students are treated equally. However, the Covenant recognizes the marriage of heterosexual couples only; expressions of sexual intimacy between same-sex married couples remain prohibited. It is in this respect that LGBTQ persons are treated unequally.

[16] Prior to their April 11, 2014 meeting, the Benchers provided TWU with a copy of the transcript of a February 28, 2014 Benchers’ meeting and copies of input subsequently received from the profession and the public. TWU was invited to provide written submissions to the Benchers and to attend and be heard at the April 11, 2014 meeting.

[17] Before that meeting the Benchers sought the following information:

a) BC Human Rights Commission Annual Reports of complaints and its statistics on areas of discrimination;

b) the Law Society’s Equity Ombudsperson’s 2011 report on areas of discrimination;

c) information from Canadian law deans regarding “any trouble [that] they have had with Trinity Western graduates, in particular in the area of anti-gay activities”;

d) information on the American Bar Association’s anti-discrimination policy and details and background regarding exemptions for religious law schools;

e) details of Law Society discipline matters regarding anti-gay activity; and

f) information from TWU with respect to the number of people disciplined for engaging in prohibited activities and a breakdown and details of areas of discipline.

[18] In its written submission dated April 3, 2014, TWU advised the Benchers that in the ten years preceding the application there had been an average of fewer than three instances per year of sexual misconduct by students, including reports of unwelcome sexual advances. In two instances students had withdrawn from TWU, and there had been “occasional” suspensions of students or placement of students on probation. No case had resulted in expulsion from the University. Two faculty/staff had been disciplined for instances of sexual harassment.

[19] On April 8, 2014 the President of the Law Society asked the President of TWU, on behalf of a Bencher, whether TWU would consider an amendment to the Covenant with respect to sexual intimacy. In response TWU advised the Law Society:

[The Covenant] is an expression of the religious beliefs of TWU and its community that is necessary for TWU to live out its purposes as a Christian university. It is critical for TWU, as a private religious educational community, to be able to define its important religious values consistent with its biblical beliefs. TWU is a Christian university that primarily serves the evangelical Christian community (and that may include others that are prepared to learn in an environment of which the Community Covenant is an important part).

The religious beliefs about marriage and human sexuality are important enough to TWU’s community to be included in the Community Covenant. It speaks of the sacredness of marriage, not for civic purposes but for religious purposes. …

It should be beyond question that these beliefs were not created to communicate anything disparaging about members of the LGBTQ communities. The Community Covenant speaks to that most strongly in terms of treating all persons with “respect and dignity, and uphold their God-given worth”. This is equally a fundamental aspect of TWU’s religious beliefs.

TWU’s sincerely held religious beliefs about marriage and human sexuality may not be widely held by others in society. As a result, these beliefs may not be valued, or even seen as legitimate. This is precisely why s. 2(a) and s. 15 of the Charter shield TWU’s community from interference. The Charter shields TWU and allows it to define its own religious beliefs and values.

…

TWU cannot simply disavow those beliefs in the hope or expectation of a positive result from the Benchers and should not be asked to do so.

[20] The transcript of the meeting of the Benchers on April 11, 2014 reflects a conscientious consideration of the motion before the Benchers and of legal opinions sought by the Law Society and the submissions of members of the Society, the public and TWU. Seven Benchers voted in favour of the resolution to declare that TWU was not an approved faculty of law. Twenty Benchers voted against the motion. The motion was therefore defeated.

[21] Following the meeting of April 11, 2014 the Executive Director of the Law Society received a written request pursuant to what was then Rule 1-9(2) of the Law Society Rules. It required the Benchers to convene a special general meeting of the Law Society to consider a resolution in the following terms:

WHEREAS:

-Section 28 of the Legal Profession Act permits the Benchers to take steps to promote and improve the standard of practice by lawyers, including by the establishment, maintenance and support of a system of legal education;

-Trinity Western University requires students and faculty to enter into a covenant that prohibits “sexual intimacy that violates the sacredness of marriage between a man and woman”;

-The Barristers’ and Solicitors’ Oath requires Barristers and Solicitors to uphold the rights and freedoms of all persons according to the laws of Canada and of British Columbia;

-There is no compelling evidence that the approval of a law school premised on principles of discrimination and intolerance will serve to promote and improve the standard of practice of lawyers as required by section 28 of the Legal Profession Act; and

-The approval of Trinity Western University, while it maintains and promotes the discriminatory policy reflected in the covenant, would not serve to promote and improve the standard of practice by lawyers;

THEREFORE:

The benchers are directed to declare, pursuant to Law Society Rule 2-27 (4.1), that Trinity Western University is not an approved faculty of law.

[22] Members of the Law Society received notice of a Special General Meeting and a message from the Benchers providing the following advice about their April 11, 2014 decision:

The decision was made after a thoughtful and sometimes emotional expression of views and careful consideration of two Federation reports on the Trinity Western University application, nearly 800 pages of submissions from the public and the profession and a submission from TWU, and after thoroughly considering the judgment of the Supreme Court of Canada in Trinity Western University v. British Columbia College of Teachers 2001 SCC 31… and its applicability to the TWU application. In addition, the Benchers considered a memorandum from former Chief Justice Finch on the relevant considerations and additional legal opinions as follows:

1. Finch/Banks - Overview Brief re: Relevant Considerations for the Law Society in Relation to the Proposed Faculty of Law at TWU

2. Laskin Opinion on Applicability of SCC Decision in TWU v. BCCT

3. Gomery Opinion on Academic Qualifications

4. Gomery Opinion on Application of the Charter

5. Gomery Opinion on Scope of Law Society’s Discretion under Rule 2-27 (4.1)

6. Thomas/Foy Opinion on Application of the Labour Mobility Act and the Agreement on Internal Trade.

Those materials were made available to members on the Law Society website.

[23] By notice to the profession dated June 2, 2014 the Benchers stated they would refrain from speaking to the resolution at the Special General Meeting because they had already considered the issue on April 11, 2014 and wished to have members’ voices, “both for and against, fully heard.”

[24] The Special General Meeting took place on June 10, 2014 at 16 locations across the province; 3,210 members of the Law Society voted for the resolution and 968 against.

[25] The Benchers next scheduled a meeting for September 26, 2014 to consider the resolution of the members. TWU was notified that the Benchers intended to consider three motions:

a) a motion to implement the June 10, 2014 resolution of the members;

b) a motion to call for a referendum to consider a resolution that would be binding on the Benchers; and

c) a motion to postpone consideration of the approval of the TWU accreditation until after judgment in one of the then-pending cases before the superior courts of British Columbia, Ontario or Nova Scotia.

[26] In response, TWU took the position that there was no legal basis upon which the Benchers could adopt the members’ June 10, 2014 resolution or call for a binding referendum, and that to do so would be a breach of the Benchers’ statutory duties and an inappropriate delegation of their responsibilities.

[27] At their meeting of September 26, 2014 the Benchers resolved to be bound by a referendum on the following terms:

BE IT RESOLVED THAT:

1. A referendum … be conducted of all members of the Law Society of British Columbia (the “Law Society”) to vote on the following resolution:

“Resolved that the Benchers implement the resolution of the members passed at the special general meeting of the Law Society held on June 10, 2014, and declare that the proposed law school at Trinity Western University is not an approved faculty of law for the purpose of the Law Society’s admissions program.”

2. The Resolution will be binding and will be implemented by the Benchers if at least:

a) 1/3 of all members in good standing of the Law Society vote in the Referendum; and

b) 2/3 of those voting vote in favour of the Resolution.

3. The Benchers hereby determine that implementation of the Resolution does not constitute a breach of their statutory duties, regardless of the results of the Referendum.

4. The Referendum be conducted as soon as possible and that the results of the Referendum be provided to the members by no later than October 30, 2014.

[Emphasis added.]

The other motions before the Benchers were defeated.

[28] Members of the Law Society were permitted to vote on the referendum until October 29, 2014. On October 30, 2014 TWU was advised of the referendum results: 5,951 lawyers were in favour of declaring that the proposed law school was not an approved faculty of law; 2,088 lawyers voted against the resolution. There were 8,039 valid ballots cast. A total of 13,350 practising, non-practising and retired lawyers had been entitled to vote.

[29] The Benchers met on October 31, 2014 to consider the outcome of the referendum. A letter to the Law Society written by the President of TWU and additional affidavits were presented to the Benchers. The President of the Law Society confirmed that “subject to a request by a Bencher or Benchers for additional time to review and consider the TWU letter and attachments, a motion to implement the referendum result will be presented on behalf of the Executive Committee.”

[30] A Bencher then moved for the adoption of a declaration that “pursuant to Law Society Rule 2-27 (4.1), Trinity Western University’s proposed School of Law is not an approved faculty of law”. The minutes of the Benchers’ meeting following the motion read as follows:

Mr. Crossin [David Crossin, Q.C., the 2nd Vice President of the Law Society] invited TWU President Robert Kuhn to address the Benchers. Mr. Kuhn declined the invitation. Mr. Crossin confirmed that the Benchers’ duty is to determine the appropriate response of the Law Society to any issue that may arise, such that the public interest in the administration of justice is protected.

Mr. Crossin also confirmed that the Law Society remains ready and willing to enter into discussion with TWU regarding amendment of TWU’s community covenant.

There being no further discussion, Ms. Lindsay called for a vote on the motion by show of hands.

The motion was carried with 25 Benchers in favour, one opposed and four abstaining.

[31] On December 11, 2014 the Minister of Advanced Education, having considered submissions of TWU, informed the President of TWU of the Minister’s decision to revoke his consent to the proposed law program at TWU under the Degree Authorization Act (DAA). The Minister stated:

Section 4(1) of the DAA requires me to be satisfied that an applicant meets the published criteria in granting consent. In this case, one of the published criteria (credential recognition) is no longer met given the decisions of provincial law societies not to approve the TWU law faculty. The objective of the DAA in protecting students through the quality assurance review would be defeated if I was unable to act on post-consent events that undermine the conditions of consent.

…

At this point in time, I am not making any final determination as to whether consent for the proposed law program at TWU should be forever refused because of the lack of regulatory body approval. Instead, I am making an interim determination that steps must be taken to protect the interests of prospective students until TWU’s legal challenge to the decision of the Law Society of BC (as well as challenges to law societies in other provinces) have been resolved.…The merits of TWU’s challenge are for the court to address; my concern is simply to protect the interests of prospective students while the challenge is being pursued.

[32] As the Minister indicated, accreditation of the TWU law school has been considered in a number of jurisdictions concurrently with the proceedings in British Columbia.

[33] The Law Society of Alberta advised its members by newsletter in December 2013 that it had delegated to the Federation of Law Societies of Canada the authority to approve Canadian common law degrees and that the Federation had granted preliminary approval to the proposed TWU law program.

[34] At a meeting in February 2014 the Benchers of the Law Society of Saskatchewan, in response to the Federation’s preliminary approval of the TWU law school, considered an amendment to their rules which delegate approval of common law programs to the Federation. The proposed amendment would have permitted the Benchers to adopt a resolution declaring the law school was not or had ceased to be an approved faculty of law. That proposed resolution was defeated.

[35] At their April 10 and April 24, 2014 convocations, the Benchers of the Law Society of Upper Canada voted against the accreditation of the proposed TWU law school.

[36] On April 25, 2014 the Nova Scotia Barristers’ Society adopted the following motion:

Council accepts the Report of the Federation Approval Committee that, subject to the concerns and comments as noted, the TWU program will meet the national requirement;

Council resolves that the Community Covenant is discriminatory and therefore Council does not approve the proposed law school at Trinity Western unless TWU either:

i) exempts law students from signing the Community Covenant; or

ii) amends the Community Covenant for law students in a way that ceases to discriminate.

Council directs the Executive Director to consider any regulatory amendments that may be required to give effect to this resolution and to bring them to Council for consideration at a future meeting.

[37] In May 2014 the Benchers of the Law Society of Manitoba decided not to engage in a local approval process and to continue to delegate to the Federation the task of approving Canadian common law programs.

[38] In June 2014 the Benchers of the Law Society of Newfoundland and Labrador resolved to place in abeyance the question whether graduates of the TWU law school would be accepted for admission to that law society.

[39] In the spring of 2014 the Yukon Law Society accepted the Federation’s decision regarding preliminary approval of the TWU law program.

[40] In June 2014 the Council of the New Brunswick Law Society voted to accredit TWU’s proposed law school program.

[41] The decisions taken by the Nova Scotia Barristers’ Society and the Law Society of Upper Canada have been challenged.

[42] In Trinity Western University v. Nova Scotia Barristers’ Society, 2015 NSSC 25, Campbell J. of the Supreme Court of Nova Scotia held:

181 The NSBS did not act reasonably in interpreting the Legal Profession Act to grant it the statutory authority to refuse to accept a law degree from TWU unless TWU changed it[s] Community Covenant. It had no authority to pass the [impugned] resolution or the regulation.

and:

270 The NSBS resolution and regulation infringe on the freedom of religion of TWU and its students in a way that cannot be justified.

[43] On July 26, 2016 the Nova Scotia Court of Appeal, for reasons indexed at 2016 NSCA 59, dismissed the appeal of the Barristers’ Society without commenting on Charter issues. The Court held the Barristers’ Society did not have the statutory authority to enact a regulation permitting the Society to refuse to recognize law degrees granted by universities with discriminatory admission or enrollment policies, nor the authority to adopt a resolution disapproving the TWU program:

[38] … [T]he Amended Regulation is ultra vires the Legal Profession Act. So the Amended Regulation, and the Resolution that depends on it, are invalid. That disposes of the matter. This Court will not comment on either (1) Trinity Western’s claimed infringement of s. 2(a) of the Charter or (2) whether such an infringement, if it exists, would be either justified under s. 1 and R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103, or proportionate under Doré v. Barreau du Québec, 2012 SCC 12 (CanLII), [2012] 1 S.C.R. 395 and Loyola High School v. Québec (Attorney General), 2015 SCC 12 (CanLII), [2015] 1 S.C.R 613.

[44] The Council of the Barristers’ Society was held to have “determined” that TWU “unlawfully discriminates” contrary to the Charter or Nova Scotia Human Rights Act. The Court found that in doing so the Council had employed a criterion “completely unrelated to the Council’s regulation-making authority under the Legal Profession Act” (at para. 67).

[45] The decision of the Benchers of the Law Society of Upper Canada of April 24, 2014 was challenged on a judicial review heard by the Divisional Court of the Superior Court of Justice of Ontario on June 1-4, 2015: Trinity Western University v. The Law Society of Upper Canada, 2015 ONSC 4250. The Divisional Court held the Law Society had the jurisdiction to make the challenged decision:

[58] For all of these reasons, therefore, we conclude that the principles that are set out in s. 4.2, and that are to govern the respondent’s exercise of its functions, duties and powers under the Law Society Act, are not restricted simply to standards of competence. Rather, they engage the respondent in a much broader spectrum of considerations with respect to the public interest when they are exercising their functions, duties and powers, including whether or not to accredit a law school.

It rejected TWU’s Charter challenge:

[123] Simply put, in balancing the interests of the applicants to freedom of religion, and of the respondent’s members and future members to equal opportunity, in the course of the exercise of its statutory authority, the respondent arrived at a reasonable conclusion. It is not the only decision that could have been made, as the difference in the vote on the question reflects. But the fact that people may disagree, even strongly disagree, on the proper result, does not mean that the ultimate decision is unreasonable. It also does not mean that, just because more Benchers favoured one approach over the other, the result equates to the imposition of some form of “majoritarian tyranny” on the minority, as the applicants contend.

[124] We conclude that the respondent did engage in a proportionate balancing of the Charter rights that were engaged by its decision and its decision cannot, therefore, be found to be unreasonable. We reach that conclusion based on a review of the record undertaken in accordance with the procedure set out in Newfoundland Nurses. In so doing, we have considered the speeches given at Convocation by the Benchers as a whole – not in isolation, one from the other. In determining whether a proportionate balancing was undertaken, it is only fair, in our view, to consider the interchange between the Benchers, not whether the individual speeches of each Bencher reflect that balance. In that regard, it is important to remember that the Benchers were speaking in reaction to what others had said, including what TWU itself had said. They were not speaking in a vacuum.

[46] On June 29, 2016 the Ontario Court of Appeal dismissed TWU’s appeal for reasons indexed at 2016 ONCA 518. MacPherson J.A., for the Court, held the Divisional Court had been correct in applying a reasonableness standard of review to the Law Society’s decision. The Court noted at para. 68 that the Benchers of the Law Society constitute a tribunal “entitled, indeed required, to take account of, and try to act consistently with, Charter values as they make decisions within their mandate”. At para. 69, the Court held: “[The Law Society’s] decision not to accredit TWU fell squarely within its statutory mandate to act in the public interest.”

[47] In relation to the balancing exercise, the Court held at para. 129 that although the Benchers’ accreditation decision would adversely impact TWU, it was “[c]learly” reasonable “within the parameters set by Dunsmuir, Ryan and Doré”. The Court gave four reasons for that conclusion at paras. 130-141:

(i) the Law Society, together with law schools, is a gatekeeper to entry into the legal profession with an obligation to ensure equality of admissions into the profession;

(ii) in balancing the rights at issue, the Law Society could attach weight to its obligations under applicable human rights legislation;

(iii) TWU was considered by the Court to be seeking access to a public benefit — the accreditation of its law school — and the Law Society, in determining whether to confer that public benefit, must consider whether doing so would meet its statutory mandate to act in the public interest; and

(iv) the Law Society’s balancing in its accreditation decision was faithful to international human rights law, and especially international treaties and other documents that bind Canada.

[48] The application for judicial review in this case came on for hearing before the Chief Justice of the Supreme Court of British Columbia on August 24-26, 2015. For reasons indexed at 2015 BCSC 2326 the petition for judicial review was successful and the decision not to approve TWU’s law school was set aside.

[49] The Chief Justice found that the procedures followed by the Law Society in reaching its decision were improper. In particular, he found that the Benchers had unlawfully delegated their decision-making powers to the members, and had fettered their discretion by agreeing to be bound by the results of the referendum. He also found that it was incumbent on the Benchers to engage in a process of balancing the statutory objectives of the Legal Profession Act against Charter values, and that they failed to do so. For those reasons, he quashed the decision of the Law Society. He concluded it was unnecessary “to resolve the issue of the collision of the relevant Charter rights” (at para. 153).

[50] Although it does not appear to have been the basis for his decision, the chambers judge was also of the view that TWU had not been given a fair opportunity to present its case during the referendum period, which he characterized as a denial of procedural fairness.

[51] On appeal the parties raise four issues:

1. Did the Law Society have statutory authority to refuse to approve TWU’s law school on the basis of an admissions policy?

2. Did the Benchers unlawfully sub-delegate or fetter their decision-making authority?

3. Was TWU denied procedural fairness?

4. Does the Law Society’s decision reasonably balance the statutory objectives of the Legal Profession Act against the religious freedom rights of TWU?

[52] The first issue the chambers judge considered was whether the Law Society, in deciding whether to approve a law faculty, was limited to considering “academic qualifications”. TWU argued that the Law Society’s jurisdiction was limited to determining whether the legal instruction that TWU proposed to provide was capable of producing graduates ready to become competent lawyers.

[53] The judge rejected that contention, holding that:

[108] … [t]he LSBC has a broad statutory authority that includes the object and duty to preserve and protect the rights and freedoms of all persons. ... [A] decision to refuse to approve a proposed faculty of law on the basis of an admissions policy is directly related to the statutory mandate of the LSBC and its duties and obligations under the [Legal Profession Act].

[54] The Legal Profession Act sets out the object and duty of the Law Society of British Columbia 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.

[55] The power of the Benchers to establish the requirements for admission to the profession is set out in s. 21(1)(b):

21(1) The benchers may make rules to do any of the following:

…

(b) establish requirements, including academic requirements, and procedures for call to the Bar of British Columbia and admission as a solicitor of the Supreme Court;

…

[56] TWU concentrates on the phrase “academic requirements” in s. 21(1)(b) of the Act. As it did before the chambers judge, it argues that matters other than the adequacy of the academic program at a law faculty cannot be considered by the Benchers in deciding whether or not to approve it.

[57] We are of the view that the chambers judge made no error in finding that the Law Society’s decision to approve or deny approval to a law faculty could be based on factors beyond the academic education that its graduates would receive.

[58] The Law Society’s objectives, as set out in s. 3 of the Act, are very broad. While “ensuring the competence of lawyers” is an objective, there are many others, including “preserving and protecting the rights and freedoms of all persons”. Nothing in s. 21(1)(b) prevents the Benchers from considering the general objectives of the Law Society in determining the requirements for admission to the profession.

[59] The chambers judge concluded his analysis of this issue by finding that the Law Society correctly interpreted its jurisdiction. We agree. In our view, the Benchers interpreted the Act in a reasonable manner (and, indeed, in a manner that would pass the standard of correctness) when they came to the view that a decision not to approve a law faculty could be made on bases other than just the adequacy of the faculty’s academic program.

[60] The chambers judge found that, in binding themselves to the results of the referendum, the Benchers unlawfully sub-delegated their powers to the membership of the Law Society and fettered their own discretion.

[61] The principles underlying the rule against sub-delegation and the rule against fettering of discretion overlap to a considerable degree, but sub-delegation and fettering are distinct concepts, and it is not helpful to blur them together.

[62] The rule against sub-delegation is easily stated: where an enactment delegates rule-making or decision-making authority to a particular person, that person is entitled to exercise the power directly, but is generally not entitled to delegate its exercise to another. The maxim that a delegate is not entitled to re-delegate is a basic principle of administrative law. While there are exceptions (see the classic article by John Willis, “Delegatus non potest delegare” (1943) 21 Can. Bar Rev. 257), sub-delegation is generally permitted only where a statute authorizes it expressly or by necessary implication (Donald Brown and John Evans, Judicial Review of Administrative Action in Canada (Toronto: Carswell, 2013) (loose-leaf) §§ 13-15 and 13-16).

[63] Section 21(1)(b) of the Legal Profession Act clearly delegates to the Benchers the power to establish requirements for admission to the profession. They have exercised that rule-making power, enacting former Rule 2-27(4.1) and current Rule 2-54(3). Those rules specifically provide that a law faculty that has been approved by the Federation is an approved law faculty for the purpose of admission to the Law Society of British Columbia unless the Benchers pass a resolution to the contrary. Nothing in the Act or Rules suggests that the Benchers are entitled to sub-delegate the power to pass such a resolution.

[64] In the case before us, however, the resolution declaring TWU not to be an approved law faculty was a resolution passed by the Benchers. While the Benchers considered themselves bound to pass such a resolution as a result of the referendum vote, the actual exercise of the statutory power was undertaken by them. In the result, this is not a case of sub-delegation. The statutory power was exercised directly by the body empowered to exercise it.

[65] The issue, then, is not whether the Law Society’s resolution was made by the body with authority to make it, but whether that body properly exercised its discretion. It is evident that, after the referendum results were known, the Benchers did not consider themselves free to exercise their discretion in an unrestricted manner. Rather, they considered the referendum binding on them.

[66] It is not necessary to engage in any detailed analysis of the concept of fettering of discretion in these circumstances. It is readily apparent that the Benchers considered the referendum to have eliminated their discretion completely. The question here is not whether their discretion was fettered — it clearly was — but rather whether that fettering was authorized by law. That question can be answered by determining whether the Benchers had statutory authority to conduct a binding referendum.

[67] The Legal Profession Act includes a provision that allows the members of the Law Society to make resolutions that are binding on the Benchers in limited circumstances. The process is a complex one, starting with a resolution at a general meeting. The provision is as follows:

13 (1) A resolution of a general meeting of the society is not binding on the benchers except as provided in this section.

(2) A referendum of all members must be conducted on a resolution if

(a) it has not been substantially implemented by the benchers within 12 months following the general meeting at which it was adopted, and

(b) the executive director receives a petition signed by at least 5% of members in good standing of the society requesting a referendum on the resolution.

(3) Subject to subsection (4), the resolution is binding on the benchers if at least

(a) 1/3 of all members in good standing of the society vote in the referendum, and

(b) 2/3 of those voting vote in favour of the resolution.

(4) The benchers must not implement a resolution if to do so would constitute a breach of their statutory duties.

[68] Where the procedures set out in s. 13 have been followed, and the statutory requirements have been met, the members can adopt resolutions that fetter the discretion of the Benchers. There is, in principle, no reason that the s. 13 procedure could not be used, in appropriate circumstances, to require the Benchers to exercise their rule-making functions in a particular way.

[69] The October 2014 referendum was held without the full requirements of s. 13 having been met. A resolution was passed at the June 10, 2014 general meeting directing the Benchers to pass a resolution declaring TWU not to be an approved law faculty. Pursuant to s. 13(1) of the Legal Profession Act, that resolution was not binding on the Benchers.

[70] At their September 26, 2014 meeting, the Benchers considered their options and decided to hold a referendum, the results of which would be binding upon them if the results met the standards set out in s. 13(3) of the Legal Profession Act. The Benchers also purported to meet the requirements of s. 13(4) of the Act by making a determination that “implementation of the Resolution does not constitute a breach of their statutory duties, regardless of the results of the Referendum.”

[71] It is not clear, on the face of the statute, that the Benchers had the power to circumvent the procedures set out in s. 13(2) of the Act and call a referendum without requiring a petition or a 12-month waiting period.

[72] The Law Society relies on former Rule 1-37 (now Rule 1-41) as authority for the Benchers to call a referendum:

1-37 (1) The Benchers may direct the Executive Director to conduct a referendum ballot of all members of the Society or of all members in one or more districts.

(2) The Rules respecting the election of Benchers apply, with the necessary changes and so far as they are applicable, to a referendum under this Rule, except that the voting paper envelopes need not be separated by districts.

[73] The Benchers say it was open to them to call the referendum under Rule 1-37, and that they did not have to await action by the members under s. 13(2) of the Legal Profession Act. TWU, on the other hand, sees s. 13 of the Legal Profession Act as a complete code governing the making of binding resolutions by the members of the Law Society.

[74] We have not heard argument on the question of whether the Law Society had jurisdiction to enact Rule 1-37; nor have the parties made full submissions on the scope of the rule. It is not apparent that any provision, apart from s. 13 of the Legal Profession Act, gives the Law Society the ability to exercise its powers by referendum. Our tentative view, then, is that Rule 1-37, at least insofar as it deals with resolutions binding on the Benchers, is ancillary to s. 13 of the statute, and not a stand-alone procedure. It cannot, itself, obviate the requirements of s. 13(2).

[75] It might be argued, however, that in setting out circumstances in which a referendum must be held, s. 13(2) does not prevent the Benchers from holding referendums in other situations. To some degree, practical considerations favour an interpretation of s. 13 that allows the Benchers to hold referendums without insisting on the filing of petitions or the lapse of 12 months. Those statutory requirements are in place to ensure that referendums will not be held where only a small number of members feel strongly about an issue, or where the Benchers simply need time to study an issue before dealing with it. Where the Benchers are convinced that the requirements of s. 13(2) will inevitably be met in the future, and where they favour an abbreviated process, there does not appear to be any rationale for insisting that the referendum be delayed until the technical statutory conditions are fulfilled.

[76] We note, as well, that the Benchers are entitled to a margin of appreciation in interpreting their home statute. As long as their interpretation is not unreasonable, it will be respected by the courts.

[77] As we are of the view that the Benchers’ decision to adopt the results of the referendum was improper for other reasons, we need not come to any final conclusion on whether the requirements set out in s. 13(2) are conditions precedent to the holding of a binding referendum. For the purposes of this case, we are prepared to assume, without deciding, that the Benchers had the authority to call a binding referendum to consider the resolution passed at the June 10, 2014 meeting despite the absence of a petition, and despite the fact that 12 months had not passed from the date of the meeting.

[78] We are not, however, convinced that the Benchers acted properly in passing a resolution to the effect that, regardless of the results of the referendum, following those results would be consistent with their statutory duties.

[79] The Benchers were cognizant of the fact that Charter values were implicated in the decision as to whether TWU should be an approved law faculty. They had, in the course of their own debates, become fully aware that the decision required them to consider TWU’s concerns for religious freedom, as well as opponents’ concerns for equality on the basis of sexual orientation.

[80] Where Charter values are implicated in an administrative decision, and the decision might infringe a person’s Charter rights, the administrative decision-maker is required to balance, or weigh, the potential Charter infringement against the objectives of the administrative regime. In Doré v. Barreau du Québec, 2012 SCC 12, the Supreme Court of Canada held that where an administrative tribunal undertakes such a balancing, it is entitled to deference.

[81] The rationale for such deference is that the tribunal will have a special appreciation for the statutory regime under which it operates, and a nuanced understanding of the facts of an individual case. In Doré, Abella J., for the Court, said:

[47] An administrative decision-maker exercising a discretionary power under his or her home statute, has, by virtue of expertise and specialization, particular familiarity with the competing considerations at play in weighing Charter values. As the Court explained in Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570, adopting the observations of Prof. Danielle Pinard:

[translation] … administrative tribunals have the skills, expertise and knowledge in a particular area which can with advantage be used to ensure the primacy of the Constitution. Their privileged situation as regards the appreciation of the relevant facts enables them to develop a functional approach to rights and freedoms as well as to general constitutional precepts.

(p. 605, citing “Le pouvoir des tribunaux administratifs québécois de refuser de donner effet à des textes qu’ils jugent inconstitutionnels” (1987-88), McGill L.J. 170, at pp. 173-74.)

[82] We would observe, however, that many tribunals have limited contact with the Charter and may have considerable difficulty interpreting it. There is also a real possibility that a tribunal’s preoccupation with its own statutory regime will lead it to value the statutory objectives of that regime too highly against Charter values. As well, it is important to recognize that administrative tribunals do not enjoy the same independence that judges do. An elected tribunal or a statutory decision-maker with a renewable term of appointment may be vulnerable to public or governmental pressure, and may find it difficult to give the Charter rights of unpopular persons or groups sufficient weight when balancing them against statutory objectives.

[83] While Doré requires a court to grant tribunals a “margin of appreciation” in determining whether they have properly balanced matters, the tribunal’s decision will, in all cases, have to fall within the bounds of reasonableness. Where a tribunal has failed to appreciate the significance of a Charter value in the balancing, its decision will be found to be unreasonable — see, for example, Loyola High School v. Quebec (Attorney General), 2015 SCC 12.

[84] A very significant aspect of Doré is its discussion of the procedure to be adopted by a tribunal in balancing statutory objectives against Charter values:

[55] How then does an administrative decision-maker apply Charter values in the exercise of statutory discretion? He or she balances the Charter values with the statutory objectives. In effecting this balancing, the decision-maker should first consider the statutory objectives. In Lake, for instance, the importance of Canada’s international obligations, its relationships with foreign governments, and the investigation, prosecution and suppression of international crime justified the prima facie infringement of mobility rights under s. 6(1) (para. 27). In Pinet, the twin goals of public safety and fair treatment grounded the assessment of whether an infringement of an individual’s liberty interest was justified (para. 19).

[56] Then the decision-maker should ask how the Charter value at issue will best be protected in view of the statutory objectives. This is at the core of the proportionality exercise, and requires the decision-maker to balance the severity of the interference of the Charter protection with the statutory objectives. This is where the role of judicial review for reasonableness aligns with the one applied in the Oakes context. As this Court recognized in RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, at para. 160, “courts must accord some leeway to the legislator” in the Charter balancing exercise, and the proportionality test will be satisfied if the measure “falls within a range of reasonable alternatives”. The same is true in the context of a review of an administrative decision for reasonableness, where decision-makers are entitled to a measure of deference so long as the decision, in the words of Dunsmuir, “falls within a range of possible, acceptable outcomes” (para. 47).

[85] In making their October 31, 2014 declaration, the Benchers did not engage in any exploration of how the Charter values at issue in this case could best be protected in view of the objectives of the Legal Profession Act. They made no decision at all, instead deferring to the vote of the majority in the referendum.

[86] Counsel for the Law Society contends that the Benchers decided that either of the possible results of the referendum would fall within the range of reasonable outcomes of the required balancing exercise, and that their decision should be upheld. In our view, that contention confuses the role to be played by an administrative tribunal and the role of the courts.

[87] Administrative tribunals are called upon to make decisions under particular statutory regimes. They are considered to have expertise and a privileged position in making such decisions. As such, where a tribunal has made what it considers to be the right decision, the courts will defer to that decision if it is not unreasonable. The reasonableness standard on judicial review does not alter the tribunal’s role, which is to make the right decision. Rather, it is a recognition that, within a particular statutory regime, the tribunal will generally be in a better position to assess whether a decision is “right” than a court will be.

[88] A tribunal’s function, in other words, is always to make the decision that it considers correct. The “reasonableness” standard is not one to be applied by the tribunal, but by a court on judicial review.

[89] In the case before us, it was up to the Benchers to weigh the statutory objectives of the Legal Profession Act against Charter values, and to arrive at the decision that, in their view, best protected Charter values without sacrificing important statutory objectives. They could not fulfill their statutory duties without undertaking this balancing process.

[90] In deciding that either result on the referendum would meet the reasonableness standard, and therefore be acceptable, the Benchers were conflating the role of the courts with their own role.

[91] As the chambers judge found, the Benchers failed to fulfill their function when they chose not to come to any conclusion as to how statutory objectives should be weighed against Charter values. In reaching the decision by binding referendum, the Benchers fettered their discretion in a manner inconsistent with their statutory duties. As a result, this Court is not in a position to defer to their decision to declare the TWU law school not to be approved.

[92] The chambers judge found that TWU had not been accorded procedural fairness in this case. That determination appears to have stemmed, in part, from a misapprehension of the evidence. The judge understood the evidence to be that the Law Society delivered material to its members that was skewed against TWU’s position. Counsel agree that that did not occur.

[93] The finding also appears to have been based on the judge’s understanding that fettering is an issue going to procedural fairness. In our view, fettering issues are better described as engaging substantive administrative review rather than review for procedural fairness. Issues of procedural fairness are concerned with the fairness of the hearing, not with the factors that the decision-maker takes into account in arriving at a disposition.

[94] In the context of a referendum, where a very public debate was waged by the protagonists for each side, the neutral stance taken by the Benchers was consistent with procedural fairness. TWU was clearly aware of the issues in the referendum, and of the case that it had to meet. We would not endorse the chambers judge’s finding that TWU was denied procedural fairness in the context of the referendum.

[95] In summary, we reach the following conclusions on the administrative law issues:

1. The Law Society has jurisdiction to consider factors other than the adequacy of a faculty’s academic program in deciding whether to deny the faculty approval.

2. This is not a case of improper sub-delegation of decision-making authority. The resolution in issue here was adopted by the Benchers, who are the body statutorily authorized to make the decision.

3. The Benchers fettered their discretion by declaring themselves bound to follow the results of the referendum. However, if authorized by the statute, such fettering would not be objectionable.

4. The Legal Profession Act provides for binding referendums. While some of the conditions that must exist in order for members to force a referendum were not present in this case, we are prepared to assume, without deciding, that it was open to the Benchers to hold a binding referendum.

5. The Benchers were required to satisfy themselves that adopting the results of the referendum was consistent with their duty to balance the Law Society’s statutory objectives against Charter values. They failed to fulfill this function, and their decision is not, therefore, entitled to deference.

6. There was no failure by the Law Society to accord procedural fairness to TWU.

[96] The chambers judge concluded that the Benchers’ resolution declaring TWU not to be an approved law faculty should be quashed, and ordered the result of the April 11, 2014 vote restored. We have a technical concern with this remedy. The resolution before the Benchers on April 11, 2014 not to approve TWU’s faculty of law failed to pass. Upon that failure it became a legislative “nothing”. There is thus nothing to “restore” as the chambers judge ordered. Rather, what is left is the approval of TWU’s faculty of law by the Federation, which is legally effective in the absence of a resolution to the contrary.

[97] In any event, in our view the judge’s decision to quash the Benchers’ resolution cannot be reached on the administrative law issues alone. Although the decision of the Benchers is not entitled to deference, it can be upheld if the Court is able to find that it represented the only reasonable balancing of statutory objectives with Charter values. Accordingly, it is necessary for the Court to consider the substantive Charter arguments presented by the parties and intervenors. In addition, the parties asked the Court to address the Charter issues in order to avoid the need for further litigation. We turn now to those issues.

[98] The relevant provisions of the Charter are as follows:

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

2. Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion;

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

(c) freedom of peaceful assembly; and

(d) freedom of association.

* * *

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

[99] The first issue is whether freedom of religion is implicated. The Supreme Court of Canada has grappled with the nature of freedom of religion and conscience (which are usually considered in tandem, given the overlap between them), both alone and in the context of a free and democratic society. In R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, one of the earliest judgments dealing with the topic, Dickson J. (as he then was) for the majority described the historical evolution of this right in the religious struggles of post-Reformation Europe. (See also chapter one of Margaret H. Ogilvie, Religious Institutions and the Law in Canada (3d ed., 2010)). Eventually, these struggles led to the perception, during the Commonwealth period, that “belief itself was not amenable to compulsion” (Big M Drug Mart Ltd. at 345). Dickson J. continued at 346-347:

… an emphasis on individual conscience and individual judgment also lies at the heart of our democratic political tradition. The ability of each citizen to make free and informed decisions is the absolute prerequisite for the legitimacy, acceptability, and efficacy of our system of self‑government. It is because of the centrality of the rights associated with freedom of individual conscience both to basic beliefs about human worth and dignity and to a free and democratic political system that American jurisprudence has emphasized the primacy or “firstness” of the First Amendment. It is this same centrality that in my view underlies their designation in the Canadian Charter of Rights and Freedoms as “fundamental”. They are the sine qua non of the political tradition underlying the Charter.

Viewed in this context, the purpose of freedom of conscience and religion becomes clear. The values that underlie our political and philosophic traditions demand that every individual be free to hold and to manifest whatever beliefs and opinions his or her conscience dictates, provided inter alia only that such manifestations do not injure his or her neighbours or their parallel rights to hold and manifest beliefs and opinions of their own . Religious belief and practice are historically prototypical and, in many ways, paradigmatic of conscientiously-held beliefs and manifestations and are therefore protected by the Charter. Equally protected, and for the same reasons, are expressions and manifestations of religious non-belief and refusals to participate in religious practice. It may perhaps be that freedom of conscience and religion extends beyond these principles to prohibit other sorts of governmental involvement in matters having to do with religion. For the present case it is sufficient in my opinion to say that whatever else freedom of conscience and religion may mean, it must at the very least mean this: government may not coerce individuals to affirm a specific religious belief or to manifest a specific religious practice for a sectarian purpose. I leave to another case the degree, if any, to which the government may, to achieve a vital interest or objective, engage in coercive action which s. 2(a) might otherwise prohibit.

[Emphasis added.]

[100] Subsequent cases have developed the themes that freedom of religion also includes freedom from religion (see S.L. v. Commission scolaire des Chênes, 2012 SCC 7 at para. 32) and that the government should remain neutral in religious matters, especially as the multicultural nature of modern Canadian society evolves (see S.L. at paras. 17-21, 32, and 54). We note parenthetically that there is one constitutional exception to this principle: s. 29 of the Charter protects against any derogation or abrogation of “privileges guaranteed by or under the Constitution of Canada in respect of denominational, separate or dissentient schools.” The Constitution, in s. 93 of the Constitution Act, 1867, in turn prohibits any provincial legislature from “prejudicially affecting” any right or privilege belonging by law to a denominational school at the time of Union. Thus an exception is made by the Charter itself for the protection of the benefits (e.g., public funding) enjoyed by such schools that were in existence in 1867 (or in the case of British Columbia, 1871) notwithstanding other Charter rights (e.g., equality) that could otherwise form the basis of legal challenge (see generally Reference re Bill 30, An Act to amend the Education Act (Ont.), [1987] 1 S.C.R. 1148; Ogilvie, supra at 120-131). Section 93 was extended to British Columbia (see Order in Council Admitting British Columbia into the Union, dated 16 May, 1871); but since this province had no publicly-funded denominational schools in 1871, s. 29 has no application in this case.

[101] The Supreme Court has formulated a methodology to be followed in cases involving allegations of infringement of freedom of religion or conscience. The first step is for the plaintiff or complainant to “establish the sincerity of his or her belief in a religious doctrine, practice or obligation”. The second step is for the court to determine whether a significant infringement of the belief has occurred as a result of governmental action: see S.L. at para. 49; Hutterian Brethren Colony v. Alberta, 2009 SCC 37 at para. 32.

[102] There is little doubt that freedom of religion and conscience of at least TWU’s faculty and students was implicated by the Law Society’s decision not to approve its Faculty of Law — indeed the Law Society did not argue otherwise.

[103] The evidence overwhelmingly supports the view that the Covenant is an integral and important part of the religious beliefs and way of life advocated by TWU and its community of evangelical Christians. According to Dr. Jeffrey P. Greenman, a Professor of Theology at Regent College and an affiant on behalf of TWU, the Covenant reflects the core teachings of evangelical Christian theology; nothing in it is marginal to evangelical moral concerns:

It attempts to do nothing more than organize the Bible’s directions about how to live as a Christian with regard to many aspects of daily life as individuals and as members of a shared community.

[104] The evidence before the Law Society confirms that evangelicals comprise a distinct religious subculture. According to Dr. Samuel H. Reimer, Professor of Sociology at Crandall University in Moncton, New Brunswick, the evangelicals’ faith, like any moral code, is not limited to their private lives. They carry their beliefs and moral values into the public sphere, including work, education and politics. Codes of conduct are commonly established by evangelical Christians as distinctive moral codes that “strengthen commitment to the subculture, and thus strengthen the subculture”.

[105] Dr. Gerald Longjohn Jr. swore an affidavit in these proceedings. He is the Vice-President for Student Development at Cornerstone University in Michigan. His area of expertise lies in the application of student conduct codes at North American Christian universities. He deposed that codes of conduct serve to establish a community that is conducive to moral and spiritual growth; such codes can foster spiritual growth, encourage students toward a life of wisdom and foster an atmosphere that is conducive to the integration of faith and learning. The Covenant is “very similar in tone and content to other codes of conduct at Christian colleges and universities”. The Covenant, in his view, is a commitment of members of the community to encourage and support other members of the community in their pursuit of their values and ideals.

[106] Intervenors in support of TWU’s position in this litigation included the Roman Catholic Archdiocese of Vancouver and allied groups, the Christian Legal Fellowship, the Evangelical Fellowship of Canada, the Seventh-Day Adventist Church in Canada, the Justice Centre for Constitutional Freedoms and the Canadian Council of Christian Charities, among others. These intervenors voiced a common theme. They asserted that a secular state supports pluralism and that a democratic society requires that differing groups have space to hold and act on their beliefs. In their view, freedom of religion requires the disciplined exercise of genuine state neutrality to prevent the use of coercive state power in the enforcement of majority beliefs or practices.

[107] It is clear, then, that rights of religion and conscience are engaged in this case. These freedoms belong at least to the faculty and students of TWU, and perhaps to TWU itself: see Loyola High School v. Quebec (Attorney General), 2015 SCC 12 at para. 33 (per Abella J. for the majority) and at para. 100 (per McLachlin C.J.C. and Moldaver J. for the minority).

[108] The conflicting Charter right implicated by the Law Society’s decision is the equality right of LGBTQ persons under the law, guaranteed by s. 15 of the Charter. As is well-known, sexual orientation has been found to constitute an analogous ground under s. 15, such that the equal benefit and protection of the law may not be denied on that basis. In Vriend v. Alberta, [1998] 1 S.C.R. 493, the majority of the Supreme Court described the effects of discrimination on the basis of sexual orientation in the context of the appellant’s termination of his employment because of his homosexuality. The majority wrote:

[101] The exclusion [in the Individual’s Rights Protection Act, R.S.A. 1980, c. I‑2] sends a message to all Albertans that it is permissible, and perhaps even acceptable, to discriminate against individuals on the basis of their sexual orientation. The effect of that message on gays and lesbians is one whose significance cannot be underestimated. As a practical matter, it tells them that they have no protection from discrimination on the basis of their sexual orientation. Deprived of any legal redress they must accept and live in constant fear of discrimination. These are burdens which are not imposed on heterosexuals.

[102] Perhaps most important is the psychological harm which may ensue from this state of affairs. Fear of discrimination will logically lead to concealment of true identity and this must be harmful to personal confidence and self‑esteem. Compounding that effect is the implicit message conveyed by the exclusion, that gays and lesbians, unlike other individuals, are not worthy of protection. This is clearly an example of a distinction which demeans the individual and strengthens and perpetrates the view that gays and lesbians are less worthy of protection as individuals in Canada’s society. The potential harm to the dignity and perceived worth of gay and lesbian individuals constitutes a particularly cruel form of discrimination.

[103] Even if the discrimination is experienced at the hands of private individuals, it is the state that denies protection from that discrimination. Thus the adverse effects are particularly invidious. This was recognized in the following statement from Egan [Egan v. Canada, [1995] 2 S.C.R. 513] (at para. 161):

The law confers a significant benefit by providing state recognition of the legitimacy of a particular status. The denial of that recognition may have a serious detrimental effect upon the sense of self‑worth and dignity of members of a group because it stigmatizes them … . Such legislation would clearly infringe s. 15(1) because its provisions would indicate that the excluded groups were inferior and less deserving of benefits.

This reasoning applies a fortiori in a case such as this where the denial of recognition involves something as fundamental as the right to be free from discrimination.

[109] The Law Society led evidence from various experts touching on the impact of the Covenant on LGBTQ persons. Dr. Barry Adam is a Professor of Sociology, Anthropology and Criminology at the University of Windsor. His work looks at issues of subordination and empowerment and the social status of lesbian, bisexual and gay people. He deposes:

a) When gay, lesbian and bisexual people are identified with private sexual activity, and subject to penalty for the expression of intimacy, a special range of social limitations are thereby imposed on them (at para. 16). Exclusion from public affirmation of relationship is a form of withholding access to the full exercise of citizenship rights in the public sphere (at para. 17).

b) Lesbian, bisexual and gay people still live in social and economic contexts characterized by lack of family support, vulnerability to harassment, violence, negative social attitudes, and diminished opportunities (at para. 20).

c) Based on the extensive record of social science investigation, any implementation or enforcement of a policy of exclusion reproduces the conditions that lead to well demonstrated deleterious consequences for lesbian, gay and bisexual people (at para. 25).

[110] Dr. Ellen Faulkner is a Professor of Sociology and Criminology at the College of New Caledonia. She has conducted research in the field of discrimination and the harm caused by it. She considered the potential adverse effects on gay and lesbian students if they were to sign the Covenant. She fears that this would push gay and lesbian people “back into the closet” (at para. 11); because of limited law school spaces they might be “living a lie in order to obtain a degree” (at para. 12). Signing the Covenant would require self-censorship by gay and lesbian people — hiding relationships even though they are legally sanctioned in Canada (at para. 29); it would require gays and lesbians to isolate themselves (at para. 30); and it would be harmful because it potentially “re-pathologizes” homosexual identity and denies recognition of the harm of homophobia (at para. 38).

[111] Other experts reached similar conclusions. In their opinion, TWU’s admissions policy and the Covenant perpetuate and exacerbate existing stigmatization and marginalization of LGBTQ persons.

[112] Unlike the College of Teachers in Trinity Western University v. British Columbia College of Teachers, 2001 SCC 31 [TWU v. BCCT], to which we will return, the Law Society did not contend that the potential “downstream” effect of the learning environment might foster intolerant attitudes on the part of TWU graduates once called to the Bar.

[113] The intervenors in support of the Law Society’s position included the Canadian Secular Alliance, the British Columbia Humanist Association, the LGBTQ Coalition, West Coast Women’s Legal Education and Action Fund and The Advocates’ Society, among others. These intervenors raised many of the same concerns raised by the Law Society’s experts. The Coalition submitted that religious freedom cannot be used as a basis to exclude LGBTQ persons from access to a law program when that program requires the approval of a public body; s. 15 guarantees LGBTQ persons the right to equal access to the 60 new law school spaces to be created by TWU and equal access to the profession of law generally. As well, it is said that the dignity and self-worth of LGBTQ persons would be affronted and that the Law Society would be perceived as endorsing the Covenant if it were to approve the proposed law school.

[114] It bears emphasizing at the outset that under the Charter, “[n]o right is absolute.” Each must be measured in relation to other rights and with a view to the underlying context in which the apparent conflict arises (S.L. at para. 25). Where freedom of religion is concerned, this fact distinguishes the Charter from the First Amendment to the U.S. Constitution, which expresses freedom of religion as an absolute right. As Professor Ogilvie observes, s. 15 of the Charter “reduces religion to one of many categories vying for ‘equality’”; and s. 1 gives courts the right to qualify freedom of religion by “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” (at 135). Thus, Ogilvie writes, “[e]ffectively, the Charter reduces and relativizes religious freedom and gives courts the power to select and balance other countervailing claims” (at 135).

[115] Unlike many Charter cases, this case does not involve a direct contest between Charter rights. It does not involve, for example, an LGBTQ person who has been denied admission by TWU on the basis of his or her refusal to sign the Covenant. The law is clear that as a private institution, it would be open to TWU to accept only students who subscribe to its adopted religious views — a right also ensconced in this province’s Human Rights Code at s. 41. Nor does this case involve a decision by the Law Society directly to deny evangelical Christians the right to practise law. Such a denial would obviously infringe at least s. 2 of the Charter and would have to be justified under s. 1.

[116] Instead, this case, like TWU v. BCCT, is one in which a statutory body has made a decision under its home statute that effectively bars from the practice of law evangelical Christians who choose to attend the TWU law school — in practical terms, prohibiting such a law school from opening (see para. 168 below). The focus of this appeal is therefore the decision of the Law Society as an administrative tribunal that is bound to uphold and protect the public interest in the administration of justice, as more particularly delineated by s. 3 of the Legal Profession Act.

[117] As we have earlier noted, how an administrative decision-maker is to exercise its delegated authority to decide an issue involving Charter rights and freedoms was addressed by the Supreme Court of Canada in two decisions that we will now discuss at some length — Doré v. Barreau du Québec, 2012 SCC 12; and Loyola High School v. Quebec (Attorney General), 2015 SCC 12.

[118] In Doré, the disciplinary council of the Quebec bar was considering a conduct complaint involving a lawyer who wrote a private letter to a judge in which he disparaged the judge. The lawyer’s freedom of expression was in clear tension with the disciplinary council’s mandate. The council reprimanded the lawyer, who sought judicial review.

[119] Justice Abella wrote the judgment for the Court. She addressed the “issue of how to protect Charter guarantees and the values they reflect in the context of adjudicated administrative decisions” (at para. 3). In particular, she considered whether the presence of a Charter issue requires the replacement of the reasonableness administrative law framework with the test set out in Oakes (R. v. Oakes, [1986] 1 S.C.R. 103), “the test traditionally used to determine whether the state has justified a law’s violation of the Charter as a ‘reasonable limit’ under s. 1” (at para. 3). At para. 6, she stated:

In assessing whether a law violates the Charter, we are balancing the government’s pressing and substantial objectives against the extent to which they interfere with the Charter right at issue. If the law interferes with the right no more than is reasonably necessary to achieve the objectives, it will be found to be proportionate, and, therefore, a reasonable limit under s. 1. In assessing whether an adjudicated decision violates the Charter, however, we are engaged in balancing somewhat different but related considerations, namely, has the decision-maker disproportionately, and therefore unreasonably, limited a Charter right. In both cases, we are looking for whether there is an appropriate balance between rights and objectives, and the purpose of both exercises is to ensure that the rights at issue are not unreasonably limited. [Emphasis added.]

[120] The key word is “proportionality”; the reviewing court must ensure that the discretionary administrative decision “interferes with the relevant Charter guarantee no more than is necessary given the statutory objectives” (at para. 7). If the decision disproportionately impairs the guarantee, it is unreasonable. If, on the other hand, it reflects a proper balance of the mandate with Charter protection, it is a reasonable one.

[121] We repeat here Justice Abella’s description of the procedure to be followed by the administrative decision-maker (at paras. 55-58):

How then does an administrative decision-maker apply Charter values in the exercise of statutory discretion? He or she balances the Charter values with the statutory objectives . In effecting this balancing, the decision-maker should first consider the statutory objectives. In Lake, for instance, the importance of Canada’s international obligations, its relationships with foreign governments, and the investigation, prosecution and suppression of international crime justified the prima facie infringement of mobility rights under s. 6(1) (para. 27). In Pinet, the twin goals of public safety and fair treatment grounded the assessment of whether an infringement of an individual’s liberty interest was justified (para. 19).

Then the decision-maker should ask how the Charter value at issue will best be protected in view of the statutory objectives. This is at the core of the proportionality exercise, and requires the decision-maker to balance the severity of the interference of the Charter protection with the statutory objectives. This is where the role of judicial review for reasonableness aligns with the one applied in the Oakes context. As this Court recognized in RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, at para. 160, “courts must accord some leeway to the legislator” in the Charter balancing exercise, and the proportionality test will be satisfied if the measure “falls within a range of reasonable alternatives”. The same is true in the context of a review of an administrative decision for reasonableness, where decision-makers are entitled to a measure of deference so long as the decision, in the words of Dunsmuir, “falls within a range of possible, acceptable outcomes” (para. 47).

On judicial review, 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. As LeBel J. noted in Multani, when a court is faced with reviewing an administrative decision that implicates Charter rights, “[t]he issue becomes one of proportionality” (para. 155), and calls for integrating the spirit of s. 1 into judicial review . Though this judicial review is conducted within the administrative framework, there is nonetheless conceptual harmony between a reasonableness review and the Oakes framework, since both contemplate giving a “margin of appreciation”, or deference, to administrative and legislative bodies in balancing Charter values against broader objectives.

If, in exercising its statutory discretion, the decision-maker has properly balanced the relevant Charter value with the statutory objectives, the decision will be found to be reasonable.

[Emphasis added.]

[122] This brings us to the decision in Loyola High School. It is highly relevant to the case before this Court because it involved a contest between the religious freedom of a private Catholic high school and the statutory objectives of Quebec’s Program on Ethics and Religious Culture (ERC).

[123] Briefly, ERC was designed to teach about the beliefs and ethics of different world religions from a neutral and objective perspective. Since Loyola High School initially wanted to teach the program from a wholly Catholic perspective, it applied under s. 22 of the regulation to provide an alternative but “equivalent” program. This required the approval of the responsible minister. The Minister decided not to grant the exemption. Loyola sought judicial review. Applying a correctness standard, the motions judge concluded that the school’s right to religious freedom was unjustifiably violated. The Quebec Court of Appeal, applying a reasonableness standard to the review of the Minister’s balancing of the Charter rights at stake, overturned the lower court’s decision.

[124] On appeal to the Supreme Court of Canada, the appeal was allowed and the matter was remitted back to the Minister for reconsideration. By the time the case reached the Supreme Court, Loyola had altered its position (at para. 31):

Loyola had previously asserted that the entire orientation of the ERC Program represented an impairment of religious freedom on the basis that discussing any religion through a neutral lens would be incompatible with Catholic beliefs. Its revised position before us was that it did not object to teaching other world religions objectively in the first component which focuses on “understanding religious culture”. But it still wanted to be able to teach the ethics of other religious traditions from the perspective of the Catholic religion rather than in an objective and neutral way. Moreover, it continued to assert the right to teach Catholic doctrine and ethics from a Catholic perspective. Loyola took no position on the perspective from which it would seek to teach the dialogue component, which would be integrated with the other two components of its proposed alternative program. The position of the Minister before this Court, however, remained the same as it had been in the prior proceedings, namely, that in no aspect of the ERC Program would Loyola be permitted to teach from a Catholic perspective. [Emphasis in original.]

[125] Justice Abella wrote for herself and Justices LeBel, Cromwell and Karakatsanis. Chief Justice McLachlin and Justice Moldaver wrote separately, with Justice Rothstein concurring. The majority did not find it necessary to decide whether Loyola itself, as a corporation, enjoyed s. 2(a) rights,

… since the Minister is bound in any event to exercise her discretion in a way that respects the values underlying the grant of her decision-making authority, including the Charter-protected religious freedom of the members of the Loyola community who seek to offer and wish to receive a Catholic education: Chamberlain v. Surrey School District No. 36, [2002] 4 S.C.R. 710, at para. 71. [At para. 34.]

[126] The minority went further in defining the beneficiaries of the right to religious freedom under s. 2(a) of the Charter to include Loyola itself (at para. 91):

In our view, Loyola may rely on the guarantee of freedom of religion found in s. 2(a) of the Canadian Charter. The communal character of religion means that protecting the religious freedom of individuals requires protecting the religious freedom of religious organizations, including religious educational bodies such as Loyola. Canadian and international jurisprudence supports this conclusion.

[127] Justice Abella proceeded to assess the Minister’s decision from the perspective of proportionality. She discussed how that decision necessarily engaged religious freedom and, at para. 58, repeated the words of Dickson J. (as he then was) in Big M Drug Mart Ltd. at 336-37 (the emphasis is that of Abella J.):

The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination. But the concept means more than that.

Freedom can primarily be characterized by the absence of coercion or constraint. … Coercion includes not only such blatant forms of compulsion as direct commands to act or refrain from acting on pain of sanction, coercion includes indirect forms of control which determine or limit alternative courses of conduct available to others. Freedom in a broad sense embraces both the absence of coercion and constraint, and the right to manifest beliefs and practices. Freedom means that, subject to such limitations as are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others, no one is to be forced to act in a way contrary to his beliefs or his conscience.

What may appear good and true to a majoritarian religious group, or to the state acting at their behest, may not, for religious reasons, be imposed upon citizens who take a contrary view. The Charter safeguards religious minorities from the threat of “the tyranny of the majority”.

[128] In Justice Abella’s view, the “collective aspects of religious freedom — in this case, the collective manifestation and transmission of Catholic beliefs through a private denominational school — were a critical part of Loyola’s claim” (para. 61) and distinguished that claim from the public school context of S.L. She concluded that the Minister’s decision had a “serious impact” on religious freedom in the case of Loyola. Going further the judge said (at para. 67):

Ultimately, measures which undermine the character of lawful religious institutions and disrupt the vitality of religious communities represent a profound interference with religious freedom.

[129] On the “core issue” of whether the Minister’s insistence on a purely secular program of study to qualify for an exemption was a limit no more than reasonably necessary to achieve the ERC Program’s goals, the majority concluded that it was not. The Minister’s decision was based “on the flawed determination that only a cultural and non-denominational approach could serve as equivalent” (para. 149). It led to “a substantial infringement on the religious freedom of Loyola” (para. 151). The minority went on to consider the appropriate scope of an equivalent program and defined it. On remedy the minority cited Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44 and concluded (at para. 165):

We find it neither necessary nor just to send this matter back to the Minister for reconsideration, further delaying the relief Loyola has sought for nearly seven years. Based on the application judge’s findings of fact, and considering the record and the submissions of the parties, we conclude that the only constitutional response to Loyola’s application for an exemption would be to grant it . Accordingly, we would order the Minister to grant an exemption to Loyola, as contemplated under s. 22 of the regulation at issue, to offer an equivalent course to the ERC Program in line with Loyola’s proposal and the guidelines we have outlined. [Emphasis added.]

[130] It is instructive to note that even in the case of a standard of review calibrated at “reasonableness”, the range of “reasonable” outcomes can be exceedingly narrow indeed, effectively amounting to one correct answer.

[131] While the parallel between Loyola and the present case is not exact, in that the state’s accommodation of religious freedom in Loyola did not have a direct detrimental impact on the equality rights of others, the requirement of minimal infringement and proportionality pertains. In addition, the context of the decision made in Loyola is similar: “how to balance robust protection for the values underlying religious freedom with the values of a secular state” (at paras. 43-46):

Part of secularism, however, is respect for religious differences. A secular state does not — and cannot — interfere with the beliefs or practices of a religious group unless they conflict with or harm overriding public interests. Nor can a secular state support or prefer the practices of one group over those of another : Richard Moon, “Freedom of Religion Under the Charter of Rights: The Limits of State Neutrality” (2012), 45 U.B.C. L. Rev. 497, at pp. 498-99. The pursuit of secular values means respecting the right to hold and manifest different religious beliefs. A secular state respects religious differences, it does not seek to extinguish them.

Through this form of neutrality, the state affirms and recognizes the religious freedom of individuals and their communities. As Prof. Moon noted:

Underlying the [state] neutrality requirement, and the insulation of religious beliefs and practices from political decision making, is a conception of religious belief or commitment as deeply rooted, as an element of the individual’s identity, rather than simply a choice or judgment she or he has made. Religious belief lies at the core of the individual’s worldview. It orients the individual in the world, shapes his or her perception of the social and natural orders, and provides a moral framework for his or her actions. Moreover, religious belief ties the individual to a community of believers and is often the central or defining association in her or his life. The individual believer participates in a shared system of practices and values that may, in some cases, be described as “a way of life”. If religion is an aspect of the individual’s identity, then when the state treats his or her religious practices or beliefs as less important or less true than the practices of others, or when it marginalizes her or his religious community in some way, it is not simply rejecting the individual’s views and values, it is denying her or his equal worth. [Footnote omitted; p. 507.]

Because it allows communities with different values and practices to peacefully co-exist, a secular state also supports pluralism. The European Court of Human Rights recognized the relationship between religious freedom, secularism and pluralism in Kokkinakis v. Greece, judgment of 25 May 1993, Series A No. 260-A, a case about a Jehovah’s Witness who had been repeatedly arrested for violating Greece’s ban on proselytism. Concluding that the claimant’s Article