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Lawyers confident TWU decision will stand

|Written By Yamri Taddese

The decision of two law societies not to accredit Trinity Western University’s law school will survive a potential court challenge, some lawyers say.

The evidence before a court now would be different than in 2001, says Susan Ursel.

“The arguments made in 2001 were very different,” says Amy Sakalauskas, past chairwoman of the Canadian Bar Association’s sexual orientation and gender identity conference, in reference to a Supreme Court ruling in favour of Trinity Western in 2001.

The comments follow the April 24 vote in which the Law Society of Upper Canada rejected the university’s bid for accreditation by a margin of 28-21. The next day, the Nova Scotia Barristers Society also refused to let Trinity Western graduates practise law in that province unless the school drops the provisions in its covenant that forbid students from engaging in intimacy “that violates the sacredness of a marriage between a man and a woman.”

The two decisions were contrary to the law societies’ counterpart in British Columbia where benchers felt they had to uphold a 2001 Supreme Court decision that found the British Colombia College of Teachers must license teachers trained at Trinity Western. During the debate in Ontario, some benchers expressed their concerns about the legal ramifications. “The law is clear that freedom of religion includes the right for people of the same faith to establish schools and universities and exclude from those schools persons who do not share their religious views,” said Bencher Christopher Bredt, who referenced the Supreme Court decision in Trinity Western University v. British Columbia College of Teachers, ahead of his vote in favour of accreditation.

But should Trinity Western mount a legal challenge against the two law societies that rejected accreditation, the evidence before the court would be different from the 13-year-old case, lawyers say.

To lawyer Lee Akazaki, the licensing of lawyers and teachers are two very different matters.

“The basic difference there from an administrative law standpoint is that teachers in Canada generally, and in British Columbia specifically, are a regulated profession. That’s to say the government controls the teaching profession,” he says.

Unlike the situation with lawyers, “the state does govern what teachers do and cannot do. It wasn’t really for the College of Teachers to make that decision,” Akazaki adds.

While the B.C. College of Teachers had a narrow jurisdiction to make a call about whether to accredit Trinity Western-trained teachers, the law societies that govern the legal profession control the entire licensing process, he notes. “So in terms of where the court case would end up, it would definitely end up in a place that’s different conceptually than British Columbia College of Teachers.”

Toronto lawyer Susan Ursel, who was counsel for an intervener in Trinity Western University in 2001, says the evidence before the court would be different now.

“When the TWU case originally came to the Supreme Court of Canada, the court found it very persuasive that there was no evidence that TWU-trained teachers have conducted themselves in a way that violated human rights law,” she says.

“That may have been persuasive at the time in a case of first instance, but if you carefully read TWU’s web site, you’ll see that they have conceived their mission in the world as an evangelical one, which is conversion of individuals in society to their particular Christian viewpoint. The point of educating lawyers within that context is to fulfil that mission.”

While it may be acceptable for Trinity Western to train teachers who will uphold their viewpoints and teach in Christian communities, the case for lawyers is different, according to Ursel.

“To my way of thinking, educating teachers might be seen as a valid activity of a religious community, but educating lawyers is not directed at the perpetuation of that small community and its health,” she says.

“It’s directed at the outside world. Lawyers function in the outside world and the system they are trying to interact with is completely a feature of the outside world.”

By launching a law school, Trinity Western is venturing into the public sphere as a service provider, says Ursel, who notes “the minute you hang up your shingle and offer services to the public, you take the public the way it comes to you. And the public comes to you with all kinds of skin colours, all kinds of genders, all kinds of ethnicity, all kinds of religious backgrounds, and all kinds of sexual orientation.”

Another issue that could come up in a court challenge now that didn’t arise in 2001 is whether the Trinity Western covenant is legal, says Sakalauskas.

Trinity Western University “never asked if the covenant is legal; they just assumed it is, which is a huge thing,” she says, noting a challenge launched by lawyer Clayton Ruby against the B.C. government on that very question.

Even so, Trinity Western would have had a better chance of gaining accreditation in Ontario if it had responded to a question raised by benchers during the first day of the debate, says Akazaki.

Bencher Julian Falconer had asked what would happen to students who discover they’re gay while at the university.

“With all due respect, [Trinity Western president Bob] Kuhn didn’t give me an answer,” said Falconer.

Akazaki says that was a valid question and that it was “a tactical error” for the university to be on the defence during its address to Convocation.

Kuhn told Convocation that critics had wrongly likened the school to apartheid and Muslim extremism.

“As a respondent, you try to make it less interesting,” says Akazaki, adding Kuhn could have simply reiterated why the Law Society of British Columbia had accredited the school.

The refusal by some law societies to accredit Trinity Western means graduates can’t use the national mobility agreement to permanently work in those provinces but they may still be able to practise across Canada for up to 100 days, says Akazaki.

The LSUC, however, says it’s still ironing out the full details of what the implications would be for the mobility agreement. “As matters stand, Trinity Western University’s graduates would not be eligible for admission to the Law Society of Upper Canada under our present rules. As we discussed in the news conference following Convocation’s vote on April 24th, there are several questions relating to future graduates of TWU’s law school,” said LSUC spokesman Roy Thomas. 

For more, see "Ontario lawyers weighing in on Trinity Western."

  • Charles Ball
    I don't see why lawyers and teachers are different. In fact, the protections for the public are greater in the case of a lawyer you takes an oath on call and is forever governed by a law society as well as by the Courts both as an officer and in negligence or breach of contract. Can a strict Muslim, Catholic or Jew not practice law? They all take oaths within their respective faiths. As a lawyer, you don;t have to agree with your client to protect and ensure that the client is fully protected by the law. I wouldn't care if my surgeon went to Trinity Western so long as he or she is competent and saves my life.
  • Colin Pye
    Trinity Western undergraduates who have graduated from other law schools and been called to the Bar signed the same covenant several years ago as undergraduates. If having TWU's law students assent to this same covenant is repugnant to the law societies and schools, why would it somehow be permissible to accept TWU's undergraduates into the law schools and Bar?

    Why not just impose a straight-out religious test that would prohibit any graduate of a religiously-affiliated institution from being admitted to law school or called to the Bar? This would extend the logic to its natural conclusion.
  • Robert Peterson
    Colin, with respect you are completely missing the issue here. No one takes issues with TWU's values or students holding homophobic viewpoints. Freedom of conscience, religion, etc. are valued by all. The only issue here is whether the law school can FORCE its students to sign a coercive covenant that by its very nature excludes gay people (other than closeted ones). Everyone is free to be as ignorant and bigoted as they want (and I'll stand up for their right to be that way). What is unacceptable is a law school that excludes and entire class of people and seeks public recognition, approval and accreditation of that practice. Totally different issues.
  • Bob Smith
    Robert,

    The problem is the law is very clear both that (I) a private university can require its students to comply with twu's covenant and (ii) it is not permissible for a professional regulatory body to refuse to a credit that school or its graduates on that basis. And we know that because the Supreme Court of Canada said precisely that in the 2001 TWU decision.

    What is unacceptable is for the Law Society of Upper Canada to ignore a binding precedent that is directly on point. It's disgraceful that lawyers, of all people, are showing such contempt for the rule of law.
  • Bob Smith
    It gets weirder, graduates from US religious law schools(say Regent University school of law) who complete the NCA process can get called to the bar in Ontario. One could graduate from the University of Tehran law school (which, I'm sure, has an enlightened policy on same-sex relationships) and get called to the bar provided you pass the NCA.
  • Robert Peterson
    You raise an interesting point. Do you propose that TWU grads go through the NCA process rather than the school be directly accredited? The law societies are not accrediting those foreign law schools. In any case, perhaps you raise an issue that more scrutiny ought to be put on the NCA process. Pointing out shortcomings in that process does not somehow translate into justification for TWU's discrimination.
  • Bob Smith
    Two points. First, no one is "justifying" TWUs discrimination, we're simply pointing out that, one, it is legal, and, two, it is not basis for refusing to accredit TWU graduates. And we can point to support from the SCC in that regard.

    Second, are you saying that, say, Iranian or Indian trained lawyers shouldn't be able to go through the NCA process and practice law in Canada if their law schools had intolerant policies towards gays and lesbians? Have you considered the very exclusionary and likely unconstitutional implications of such an approach. If you're not saying that, why is a similar approach acceptable for TWU students?
  • Bob Smith
    Well, I hope a TWU graduate wouldn't try to persuade one of their clients to "switch teams" (or to have, or not have an abortion) since that would likely be highly unethical. But there's not reason to expect that TWU graduates would be more inclined to do so than anyone else. What they do outside of their professional life is, and should be, their own business.
  • Ian Wilson
    Mr. Falconer should more properly have asked Bob Kuhn, 'what happens to students who discover they're gay while at Trinity AND THEN MARRY WHILE STILL ATTENDING".

    It seems forgotten the covenant is intended first and foremost to discourage casual sex, meaning sexual relationships outside of an approved matrimonial union. It is not directly 'aimed' at gays. That is a secondary effect and what makes the covenant more likely to benefit from the protection of s. 18 of the Ontario Human Rights Code regarding special interest organizations.

    What is the evidence lawyers trained at TWU would treat gays contrary to the HR Code? Sure they might try to convince a gay person to 'switch teams' but how is that different from the risk of a devout Catholic lawyer possibly trying to convince an unmarried mother not to have an abortion? Lawyers are permitted to have different views and to express them as long as the HR Code is respected.
  • Brennan LeJean
    Maybe it's because I'm not a lawyer, but I fail to see how the Charter even applies here. If TWU isn't a government actor, but a privately funded religious university, how can the Charter apply to their actions?
    Shouldn't this be an issue of discrimination under a Human Rights Code and not of Chater rights either 2(b) for TWU or 15 for non-Christian applicants?
  • Bob Smith
    It would be discrimination under the BC Human rights code, if the BC human rights code didn't explicitly permit religious and educational organizations to discriminate on this basis (a point made by the SCC in the 2001 TWU decision). Indeed, Section 41 of the BC human rights code permits educational organizations to prefer members of a particular religious group (i.e., those who agree with TWUs interpretation of the bible) where the purpose of that organization is to promote the interests of members of that group.

    There is a similar provision in Ontario's human rights code - which fact apparently eluded the various benchers who claimed (repeatedly) that TWU conduct would violate Ontario's human rights code.
  • Bob Smith
    More to the point, it is telling that the Court (in TWU) found no evidence that teachers trained at TWU would discriminate against gay or lesbian students. Is there any evidence that lawyers educated at TWU would do the same?

    It's interesting that the many opponents of TWU haven't identified any cases or allegations of such discrimination (given their opposition to TWU you might expect the BC college of teachers to have kept detailed records of such complaints).

    Susan Ursel is right only in one respect, in 2001 the court had no evidence that TWU students would discriminate in their professional live against gay or lesbian students. Now it 13 years of evidence that they don't. That doesn't strength the LSUC's case.
  • Bob Smith
    Boy those are some pretty weak arguments to justify the LSUC's casual disregard for section 2(b) and section 15 of the Charter in discriminating against TWU and its graduates. It's almost as if the opponents of TWU haven't read the SCC's decision inTWU

    To Amy Sakalauskas' point, in fact the SCC did consider the legality of the TWU charter in its decision - it found that TWU was exempt from the BC Human rights code (under a provision similar to that found in Ontario's human rights code). Amongst other things it found that a practice by TWU that is expressly permitted by BC (and, ahem, Ontario) is not a valid ground for refusing to recognize its students. Sound familiar?
  • Robert Peterson
    The issue she is referring to is whether it's legal under the Canadian Charter of Rights and Freedoms, NOT the BC Human Rights Code.
  • Bob Smith
    Which would be an interesting argument if the charter applied to private entities. Since it doesn't, its no wonder the SCC didn't consider the issue.

    The argument might be that the Human Rights Code which expressly permits TWU to engaged in the practice it does might be subject to a section 15 challenge (along the lines of the Vriend decision). However, in TWU the majority of the court made it quite clear that one charter right can't be allowed to override another, the two must be balanced. Granted, they made those statements in the context of assessing the BCT's administrative decision, but there's not reason to expect that the court would find differently on a charter analysis. Even if the impugned provisions of the BC (and Ontario) human rights code might be found to violate section 15 of the Charter, they would certainly be upheld on section 1 analysis, as a reasonable and demonstrably justifiable way of balancing those competing charter rights.
  • Robert Peterson
    The Charter applies to the Law Societies, and they must engage it in their decision making (see the Supreme Court of Canada's decision in Doré). To accredit a law school requires a decision that engages the Charter.

    TWU is at complete liberty to teach whatever it wants in the privacy of its own institution. Once it starts seeking public accreditation, it must comply with the Charter.

    I don't think there is really any debate over this and TWU is only arguing that they can do whatever they want in compliance with the Charter under the guise of "freedom of religion".
  • Bob Smith
    Robert,

    Have your read the Dore decision carefully? Yes, the scc said that law societies must consider charter values. As authority for that it cited the 2001 decision in TWU which held that the BCCT failed to give effect to the charter values of religious freedom and non-discrimination in refusing to a credit TWU graduates. So, in fact, the Dore decision stands for the exact opposite of what you suggest, namely the proposition that it illegal for the Law Society to refuse to accredit TWU graduates on the basis of the community covenant.
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