“This Charter applies…”: The Supreme Court of Canada’s Fundamental Error in the Trinity Western University decisions

Abstract

I. Introduction
There has been an ongoing battle between Trinity Western University and the Federation of Law Societies of Canada — the national organization of the law societies that govern the legal profession in Canada — over whether Canada’s law societies will recognize JDs from the law faculty that Trinity Western wishes to establish. At the heart of this controversy is the fact that Trinity Western University, as an avowedly Christian, and some might say conservative, university, requires all of its faculty, staff, and students to sign a Community Covenant. Among other things, this Community Covenant prohibits “sexual intimacy that violates the sacredness of marriage between a man and a woman.”¹ A student’s failure to comply with the Covenant could result in disciplinary measures, including suspension and possibly expulsion.² Several law societies, including the Law Society of British Columbia and the (as it was then known) Law Society of Upper Canada, denied accreditation to Trinity Western’s proposed law faculty because of this Community Covenant...