This article appears in the current (Fall 2016) edition of the Christian Legal Journal, a publication of Christian Legal Fellowship, an intervener in Trinity Western University’s litigation in all three provinces.
Any state-imposed limit on a constitutional right or freedom must be “prescribed by law”, according to section 1 of the Charter. This requirement stems from the principle of the “rule of law”, a principle that long precedes the Charter and is called foundational in the Charter’s preamble.
The “prescribed by law” requirement has been neglected in recent years, much to the disadvantage of Trinity Western University (TWU) in its litigation with three provincial law societies, and ought to be brought to bear on and considered by judges in this litigation.
The law societies’ rejection of TWU
Before TWU opened its doors, three provincial law societies formally resolved to reject a TWU law degree as satisfying their requirements for admission to the bar. In fact, after TWU obtained approval of its program from the Federation of Law Societies (FLS), two law societies—the Law Society of British Columbia (LSBC) and the Nova Scotia Barristers Society (NSBS)—changed their rules regarding how they recognize academic credentials for admission to articling and practice, in an apparent effort to ensure they had some legal basis for rejecting TWU despite the FLS’ approval.
The LSBC, which formerly accepted a law degree from any Canadian common law faculty as satisfying its academic requirements, when it learned TWU’s planned program met FLS standards, passed Rule 2-27(4.1) (now Rule 2-54(3)). This Rule says that a law degree satisfies the LSBC’s academic requirements if it is obtained from an “approved” common law faculty. Further, the Rule states that a law faculty is “approved” if it meets FLS standards, but with a major caveat: “unless the Benchers adopt a resolution declaring that it is not or has ceased to be an approved faculty of law.”
There are no further criteria. Following the adoption of the Rule, the LSBC (eventually[i]) resolved that TWU was not an approved law school.
The NSBS, which formerly required a law degree “from a faculty of common law at a Canadian university approved by the Federation of Law Societies of Canada”, passed a regulation in 2014 stating it would be satisfied with “a Bachelor of Laws degree or a Juris Doctor degree from a faculty of common law at a Canadian university approved by the Federation of Law Societies of Canada for granting of such degree, unless Council, acting in the public interest, determines that the university granting the degree unlawfully discriminates in its law student admissions or enrolment policies or requirements on grounds prohibited by either or both the Charter of Rights and Freedoms or the Nova Scotia Human Rights Act.” This regulation was passed after the NSBS had resolved that “[TWU’s] Community Covenant is discriminatory and therefore Council does not approve the proposed law school at Trinity Western unless TWU either: exempts law students from signing the Community Covenant; or amends the Community Covenant for law students in a way that ceases to discriminate.”
In Ontario, the Law Society of Upper Canada (LSUC) already had in place a requirement that applicants for admission have a degree from an “accredited law school”, meaning simply “a law school in Canada that is accredited by the Society” (ByLaw 4, Part 3, s. 7). Its rules and bylaws do not provide any guidance on deciding whether to accredit a school. The LSUC voted in April 2014 to reject the accreditation of TWU’s law school. It has since defended the decision as reasonable in light of its statutory mandate to protect the public interest.
Rule of law: authority and intelligibility
Rule of law means rule by written law as opposed to arbitrary power: “the exercise of all public power must find its ultimate source in a legal rule.”[ii] In order to not run afoul of this principle, any act of a government body must (1) be authorized by law and (2) the law must be sufficiently clear, accessible, and precise so that people can conduct themselves in accordance with it. We can refer to these two “branches” of the rule of law with terms such as (1) vires, jurisdiction, and authority, and (2) intelligibility, clarity, and precision.
The question of vires is primary. Does the state official have statutory authority to act? Does the regulatory body have jurisdiction over the activity or parties it purports to regulate? Does the court or tribunal have jurisdiction over the subject matter of the case? If the answer is no, the act or decision of the government body in question is not authorized by law and is void.
The vires question has been raised in the TWU litigation in all three provinces. It arises at the outset. Does the law society’s enabling legislation authorize it to scrutinize TWU’s Community Covenant in deciding whether or not to recognize TWU degrees? The jurisdiction question was conclusive in the Nova Scotia Court of Appeal’s recent ruling[iii] in TWU’s favour, in which the Court found that the Barristers Society lacked statutory authority to pass a regulation enabling it to make freestanding decisions on whether or not a university “unlawfully discriminates”. In Ontario and B.C., however, so far (we await the Court of Appeal ruling in B.C.) the courts have found that the law societies acted within their jurisdiction in scrutinizing the Covenant because they have a statutory mandate to protect the public interest, and accepting graduates of a school with such a policy supposedly raises public interest concerns.[iv]
But even if a government actor can point to a statutory provision as authority for its action, if its action limits a Charter right or freedom (which has been the finding of every court in the TWU litigation to date) it must also satisfy the “prescribed by law” standard of section 1 of the Charter, meaning that persons subject to that state actor’s authority must have sufficient information on how to conduct themselves in order to meet the applicable legal standards.[v] Whereas the question of vires or authority logically comes first, once it has been established that the state actor had authority to act and acted in a way that limits a Charter right or freedom, the onus is on the state actor to defend its action using section 1 of the Charter.
The neglected “prescribed by law” requirement
Ordinarily, the question of whether part of a statute, regulation, rule, or policy is sufficiently clear and precise is raised when the statute, regulation, rule, or policy itself is being challenged as violating the Charter. The prescribed by law requirement is often neglected in judicial review of administrative action under the legal framework set out by the Supreme Court of Canada in Doré (2012 SCC 12). Why? The Doré framework is designed for and applied to situations where an administrative decision is the cause of the limitation on Charter rights. The question addressed by the Doré analysis is whether the decision maker limited a Charter right in a manner proportionate to the advancement of a statutory objective. Doré was designed to overcome the difficulties of applying the more formal and formulaic Oakes analysis to administrative decisions (rather than statutory provisions, regulations, or rules)—decisions that may take many different forms and involve the discretionary weighing of many different factors.
The growth of the administrative state has been facilitated through legislation granting authority to administrative bodies to make discretionary decisions and to establish their own policies and rules to guide their decisions. In TWU’s case, the law societies had statutory authority to set academic requirements and to pass related rules. The question is whether they used that authority in a manner that was intelligible and predictable such that it satisfies the “prescribed by law” requirement. To the extent that the Doré framework has resulted in the neglect of this requirement and encouraged discretionary decision making unguided by accessible and precise standards, it is in need of correction.
The point of the “prescribed by law” requirement is that people should be able to know in advance how to conduct themselves (individually or corporately) in order to obey the law or satisfy the standards of a regulatory body and, if their rights are limited, to be able to decipher how and why their rights have been limited so that they can hold the government accountable.
If a group of co-religionists associate to form an institution for the purpose of studying law—to the level of academic excellence the statutory gatekeeper may legitimately require—while corporately committing to living in accordance with a religious ethic, what elements of their religious ethic can or cannot be included in the community’s code of conduct? What kinds of religious expression, if any, can a university support and still have its graduates accepted by the law societies? Might any explicit religiosity in a school make some people feel less welcome than others and, if so, is it permissible? Or if religious individuals who attend public universities wish to be admitted to the bar, can they know in advance whether or not and how their religious expression or membership in religious associations could impact their eligibility to join the bar?
Were the LSBC’s and LSUC’s decisions prescribed by law?
In order to be “prescribed by law”, the decisions of the law societies must be based on a statutory provision, regulation, or rule that places discernible limits on the discretion to determine a person’s (or group’s) eligibility for admission to the bar. As the SCC stated in Irwin Toy v Quebec (AG)[vi], “where there is no intelligible standard and where the legislature has given a plenary discretion to do whatever seems best in a wide set of circumstances, there is no ‘limit prescribed by law’.”
After the LSBC learned that TWU had submitted a proposal for a new law school to the Federation of Law Societies, it might have passed a rule saying, for example, “A law degree obtained from a university that requires its students to abstain from lawful sexual activity shall not satisfy the academic qualifications required for enrolment in the admission program.” In that case, it would be clear to everyone what standard TWU’s law program failed to satisfy, the rule itself might have been subject to a Charter challenge, and the court might have conducted an Oakes analysis of the rule itself. Instead, the LSBC passed an open-ended rule that (on its face) appears to allow it to reject law degrees from any law school by a simple majority vote. The LSBC seems to believe this makes passing s. 1 scrutiny much easier. From a rule of law perspective, this is disconcerting. The LSUC likewise does not have any criteria governing whether or not it will accredit a school.
Allowing a law society to operate in such a manner jeopardizes the rights of those who are or wish to become licensed members. Making decisions affecting Charter rights based on open-ended, criteria-free rules or bylaws is fundamentally at odds with the rule of law, which protects rights and freedoms first by precluding plenary discretion. The rule of law is the first friend of fundamental freedoms. The rule of law requires intelligibility and predictability. Today, law societies claim that the allegedly discriminatory (though not unlawful) effect of TWU’s Covenant justifies rejecting TWU. Tomorrow, they might decide that TWU’s (or another school’s) hiring policy is problematic or that its faculty’s publications are offensive. Based on the LSBC’s Rule 4.1 and the LSUC’s ByLaw 4, it appears that any reason will do.[vii]
The focus has been on the Covenant’s alleged discriminatory impact on LGBT students, but its alleged problems go beyond that. For example, the Ontario Divisional Court said TWU’s discrimination also extends “to women generally; to those persons of any gender who might prefer, for their own purposes, to live in a common law relationship rather than engage in the institution of marriage; and to those persons who have other religious beliefs.”[viii] The implication of this passage seems to be that TWU might have to abandon much of its religious identity in order to please the law society. It isn’t clear at all, of course, how TWU would have to change to satisfy the law societies, and that is the problem.
Discretion, administrative guidelines, and the “prescribed by law” standard
We can compare TWU’s case with Bonitto v Halifax Regional School Board, in which a school principal prohibited the plaintiff from distributing tracts at a public school. The plaintiff in Bonitto argued that the principal’s decision was not prescribed by law. The Court found against the plaintiff on this point, because the principal’s discretion to (dis)approve materials was subject to a policy the School Board passed pursuant to its enabling legislation. The Board’s policy required the principle to consider a published list of factors respecting the potential impact of a given publication on the school environment. The Court noted that the legislation and the Board’s guidelines together were “sufficiently precise and accessible” to govern the principal’s discretion and therefore satisfied the “prescribed by law” requirement.
From this we can surmise that when legislation grants discretionary power to administrative bodies to make decisions affecting Charter rights and freedoms and to pass their own rules or policies to guide the exercise of their discretion, that those bodies must pass sufficiently precise rules in order to satisfy the “prescribed by law” requirement, if the enabling statute on its own does not provide a sufficiently precise standard.[ix]
In TWU’s case, unless the law societies’ statutory duty to protect the public interest is interpreted as TWU argues it ought to be—as limited, in the context of deciding whether to recognize a law degree, to concerns regarding the degree holder’s character and competence—the standard of “public interest” must fail section 1 scrutiny. In another case, Ktunaxa Nation v British Columbia, Ktunaxa Nation does an fine job (in its factum on appeal to the Supreme Court of Canada) of explaining why this is so. Ktunaxa Nation, an Aboriginal First Nation, claims that the B.C. Minister of Lands, Parks, and Housing has violated its freedom of religion by granting permission to a developer to build on Crown land in which the Ktunaxa claim a spiritual interest. The Minister has statutory power to dispose of Crown land when he considers it “advisable in the public interest”. Ktunaxa Nation does not challenge the validity of that statute, but argues that a decision based on that statute limiting its religious freedom cannot satisfy be considered prescribed by law because, as the Supreme Court has said, the public interest is “so vague as to provide no meaningful guidance and so broad as to be unworkable as a test for the justification of a limitation on constitutional rights.”[x] The Court has also said that while vagueness can be used to attack a law directly, it can also be raised under s. 1 of the Charter (as CLF has done in its TWU interventions).[xi]
In the LSBC’s case, rather than add guidance for exercising its discretion to establish requirements for admission to articling and practice under the Legal Profession Act, its Rule appears to attempt to broaden the LSBC’s discretion beyond that granted by its enabling statute. In Ontario, though the LSUC did not change its rules or bylaws while TWU was seeking accreditation from the FLS or afterwards, its existing bylaw saying simply that an accredited school is “a school accredited by the Law Society” is similarly vague. At least the NSBS passed a Regulation with a criterion: it could reject a degree from a school that “unlawfully discriminated”, the Regulation said—though the Court found this Regulation to be ultra vires. From a rule of law perspective, the merit of the path that the NSBS took was that it attempted to actually set a standard, which could then be and was scrutinized.[xii]
Publish and defend intelligible criteria
Vague rules may not ordinarily come under scrutiny, but where decisions are made based on such rules that have the effect of limiting Charter rights, the rules on which those decisions are based must satisfy a certain standard of intelligibility in order for the decision to pass s. 1 of the Charter.
Courts should avoid inadvertently encouraging law societies (or other regulatory bodies) to pass vague rules or policies to guide their decision making out of the belief that doing so makes it easier to prevent or withstand judicial review where their decisions infringe Charter rights and freedoms. People deserve to know in advance what factors are relevant to becoming eligible for admission to the bar. If that means passing a rule like the NSBS’ Regulation, fine. A law society’s criteria for admission to the bar should be intelligible and publicly available, and it should be prepared to defend them.
[i] The LSBC Benchers initially voted (on April 11, 2014) against a motion to deny approval of TWU notwithstanding the approval of the Federal of Law Societies. Later that year (September 26), the LSBC Benchers voted down another motion to reject TWU graduates, but approved a motion to put the question of whether to approve TWU to a referendum of LSBC members and to be bound by its outcome. The B.C. Supreme Court found that this amounted to an impermissible fettering of its discretion on the part of the LSBC: Trinity Western University v. The Law Society of British Columbia, 2015 BCSC 2326 at para 120.
[ii] Reference re Independence and Impartiality of Judges of the Provincial Court of Prince Edward Island,  SCJ No 75,  3 SCR 3 at para 10.
[iii] The Nova Scotia Barristers’ Society v Trinity Western University, 2016 NSCA 59.
[iv] If you are not up to date on the court rulings, check out TWU-related blog posts on our website: www.christianlegalfellowship.org.
[v] Greater Vancouver Transportation Authority v. Canadian Federation of Students — British Columbia Component, 2009 SCC 31 at para 50.
[vi]  1 SCR 927 [Irwin Toy].
[vii] TWU has argued, sensibly, that the Court should interpret the LSBC’ Rule by reading it in light of the LSBC’s authority to set “academic requirements” for entry to articling and the bar, which would make TWU’s non-academic policies not affecting the competence and character of its graduates irrelevant. A similar line of argument is advanced by TWU with respect to LSUC’s bylaw. Indeed, if an interpretation limiting the scope of the discretion a rule or bylaw grants is available and reasonable, the Court should adopt it. Alternatively, the Court could find that the rule or bylaw does not set intelligible limits on the LSBC’s discretion, meaning a decision to reject TWU graduates cannot be justified under s. 1 of the Charter if it is based on such a rule or bylaw.
[viii] 2015 ONSC 4250, at para 104.
[ix] With the growth of the administrative state and statutory grants of discretion, Paul Daly has suggested imposing an obligation to add precision by adopting rules and guidelines as a solution to the post-Doré confusion in his working paper, “Prescribing Greater Protection for Rights: Administrative Law and Section 1 of the Canadian Charter of Rights and Freedoms”, November 2013, University of Ottawa Working Paper Series.
[x] R. v Sparrow,  1 SCR 1075, at 1113, cited in the Factum of the Appellant Ktunaxa Nation on appeal to the Supreme Court of Canada at para 95.
[xi] R. v. Nova Scotia Pharmaceutical Society  2 SCR 606 at para 28, cited in the Factum of the Appellant Ktunaxa Nation on appeal to the Supreme Court of Canada at para 95.
[xii] The standard set in NSBS’ Regulation was problematic because NSBS is not a human rights tribunal and cannot give itself power to make findings of human rights law violations, and because neither Nova Scotia human rights law nor the Charter applies to TWU.