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Ontario lawyers weighing in on Trinity Western

|Written By Charlotte Santry

More than 100 lawyers, groups, and members of the public have weighed in on the debate over whether the Law Society of Upper Canada should accredit Trinity Western University’s planned law school.

Lee Akazaki’s submission calls on the LSUC to not accredit Trinity Western’s law school unless it changes or rescinds its covenant.

Students at the private Christian university’s law school, set to open in 2015, would have to sign a community covenant with a provision on abstaining from “sexual intimacy that violates the sacredness of marriage between a man and a woman.”

The LSUC has been consulting on whether to accredit Trinity Western’s law program ahead of Convocation debates scheduled for April 10 and 24.

Controversy has centred on the impact of the covenant on the lesbian and gay community.

Many of the responses to the LSUC’s consultation reflect the concerns. The consultation that ended on Friday attracted more than 100 submissions.

Gilbertson Davis LLP lawyer Lee Akazaki’s 51-page contribution calls on the LSUC to not accredit the school unless it changes or rescinds the covenant.

Akazaki wrote: “TWU’s community covenant requires, as a condition of admission to the law school, that students collaborate in an overt practice of systemic discrimination.

“Collaboration with such practices denigrates LGBTQ members of the law society and calls into question the ethical soundness of bar candidates who are prepared to sign the covenant to secure a spot in a law school.”

The covenant is therefore “incompatible with the education and well-being of modern lawyers as ethical professionals,” he wrote in his submission.

In a 2001 case, Trinity Western University v. British Columbia College of Teachers, the Supreme Court of Canada ruled the college couldn’t reject the university’s accreditation on the basis of discrimination.

But according to the Criminal Lawyers’ Association’s submission, the case is distinct from the “more far-reaching” issues facing the LSUC.

“Furthermore, since that decision, Charter cases have continued to evolve in keeping with the changing mores of Canadian society,” the association stated.

Toronto-based lawyer and consultant John Rider has written to the LSUC warning the legal community not to “shy away” from voicing concerns on the basis that “the university in question is litigious.”

Expanding on this to Law Times, he says: “The law society needs to have the courage to stand up and say the school shouldn’t be accredited because they’re discriminating against their potential candidates. They’re specifically excluding members of the LGBTQ community.”

If the university were to bring an action against the LSUC, the regulator should “vigilantly fight it,” Rider adds.

However, Anne-Marie Langan, a lawyer at Rural Legal Services in Sharbot Lake, Ont., believes the law society should grant accreditation.

Her submission to the LSUC states: “By not accrediting TWU on the basis that the school promotes traditional Christian values about human sexuality, you would be discriminating against those who hold those views and want to attend a school that promotes those values.”

Christopher Moon, a senior corporate and commercial lawyer at Davis Webb LLP in Brampton, Ont., believes it would be inappropriate to “punish” graduates on the basis of their school’s philosophy.

Moon says: “We have a diversity of religions that are entitled to have private universities. If the people they put out adhere to the requirements, denying them the entitlement to practice is contrary to where we should stand as a country.”

A wide range of other lawyers and legal associations have contributed to the consultation with most of them speaking against accreditation.

Whether Trinity Western graduates could practise in Ontario if the LSUC decided not to accredit the school would depend on several factors, a law society spokesman explained.

To be licensed in the province, lawyers must have graduated from an accredited law school.

If a Trinity Western graduate were called to the bar in another province and wanted to transfer permanently to Ontario and become a member of the LSUC, this “would appear” to be impossible under Bylaw 4, the spokesman said.

But that wouldn’t prevent a Trinity Western graduate called to the bar elsewhere from providing legal services in Ontario for up to 100 days in a calendar year. They wouldn’t have to advise the law society they were providing legal services on a temporary basis.

Trinity Western has already received conditional approval for its proposed program from the Federation of Law Societies of Canada’s approval committee.

The British Columbia government has also approved the application, although the decision may be subject to a court challenge as Toronto law firm Ruby Shiller Chan Hasan has raised more than $15,000 through a crowdfunding campaign to help mount a pro bono case.

The goal is to raise $30,000 to pay for disbursements.

The Ontario Bar Association has also entered the debate. On Friday, March 21, its council adopted a motion calling on the LSUC to adopt a “non-discrimination requirement” for all current and future law programs.

The motion doesn’t indicate the OBA believes Trinity Western’s covenant to be discriminatory, although it arose “in the context of TWU’s request for accreditation,” an OBA spokesman said.

  • James E Turner
    This issue is about how two competing Charter rights are balanced. Some forget there are TWO Charter issues here, not just one. We will be discriminating no matter what we choose.

    The Covenant is faith-based and an expression of the genuine religious beliefs of the students who choose to sign it. This may be a choice none of us would make, but if TWU grads choose to sign the Covenant, that is their right. For a genuine believer, religious faith isn't like choosing a hockey team. It is integral to who they are. That's why freedom of religion is a fundamental freedom & one of the five grounds on which a person may claim Refugee status under the Geneva Convention, which Canada has signed.
    For 200 years in England, Catholics, Jews and certain 'dissenting' Protestant groups were barred from public office under the "Test Acts." Are we to re-impose a religious "test" for lawyers?
    Where do TWU's opponents try to balance the rights?
  • David Cavilla
    Mr. Turner makes an excellent point. NOT allowing TWU graduates to practice because of what they believe is at least as offensive as the covenant opponents criticize. How is this any different from the Test Act cases he cites? And can someone please explain to me how the covenant discriminates only against the gay community? Isn't it equally discriminatory against unmarried couples who want to engage in premarital sex? Where are the defenders of the heterosexuals? Why has this been trumped as a gay issue?
  • Anne V
    I and others have pointed out that the covenant discriminates against heterosexuals who are either married under a regime that TWU does not recognize (Civil Unions for instance), or common law, or just wanting to have sex without long term commitment of any kind.

    The fact that those heterosexuals have not bothered (much) to complain is likely in part that Family Status is one of the less well recognized areas of Charter protection, and in part that heterosexuals may --generally-- be so unaccustomed to being discriminated against that their protest muscles have atrophied.
  • Stanley Cramer
    This is a great idea. I want to have a school that is against a large variety of minorities and religious groups. Of course you can be a member of one of these groups you just have to sign a pledge to work against them upon graduation. {This was sarcarm}

    The Law Society needs to clean house. The nonsense that they waste time on is ridiculous while criminals masquerading as lawyers are rampant (Javad Heydary).

    The public would not be served by another Ontario law school, this is just a cash grab by the school for higher tuition and no thought that graduates will have limited success.

    Articling is being decimated and greater numbers of law school graduates unable to find jobs will prey on the public as incompetent sole practitioners.
  • Paul Mack
    Accreditation of TWU is NOT, despite all the noise, about discrimination against LGBT students. The Community Covenant applies equally to students whose identity is homosexual, and heterosexual - all covenant not to engage in sexually intimate activity outside marriage. Is the marriage exception discriminatory because it does not recognize gay marriages? It was only by virtue of the Civil Marriages Act, 2005, that the religious definition of marriage - an essential element of most major religions for centuries - was expanded to include gay marriages. TWU is a religious institution, and it, too, should have some rights to continue to apply its religious definition of marriage (particularly as it is not seeking government funding).
    Its graduates should not be assumed to be predisposed toward 'homophobia' - any more than a law graduate who grew up in a sexist culture should be expected to be sexist
  • Rick K.
    Assuming that graduates who hold Christian values will necessarily be unethical and unable to advocate for their clients is outrageous. It's not the advocates' personal beliefs that matter, it's their ability to act professionally. If they don't, the bar societies will deal with them. This rush to political correctness is deeply disturbing and downright professionally shameful!
    Mr. Akazaki's reasoning is downright dangerous. Many lawyers, include I, belong to organizations that openly do not favour lesbian or gay marriage, and which require their members to restrict themselves to a Christian view of marriage. According to Mr. Akazaki, I and my fellow travellers should not be licensed to practice law, as our ethics are questionable. Talk about discrimination! Are we not allowed as individuals and as organizations openly to disagree with the laws of the land, and restrict membership to those who also agree? Those who disagree with us can form their own organizations to promote differing views. Tjat's the freedom we enjoy, and which Mr. Akazaki advocates be taken from TWU.
  • Anne V.
    No one has suggested disbarring lawyers who discriminate. Nor has anyone suggested that belonging to an organization that does not favour gay marriage should be reason to deny a candidate their license.

    There remains a difference between thinking and acting. No one is attempting to deny you your beliefs, however, the Rules of Professional Conduct stipulate that lawyers must not violate Ontario's Human Rights Code while practising law. If your membership in whatever groups means that you refuse lesbian and gay clients, you are violating the rules of conduct, and, yes, at that point your ethics are not merely questionable, they fail to meet the standard set by LSUC.

    TWU is not just saying they believe one marriage is better than another, they are requiring students to agree in order to enrol. TWU is behaving in a way they should be teaching students not to behave. Teachers are supposed to be role models, not bad examples.
  • Lee Akazaki
    It should be clear that most jurists voicing concern about TWU's covenant also support TWU's freedom to teach law from a faith perspective. Lawyers have much to learn from Christian teaching. Much of our law draws on ethical tenets sourced in the Judeo-Christian tradition. The Bible is a statute in the Austinian sense of a Sovereign code, and Jesus is a mediator of a New Covenant - akin to constitutionalizing the role of God. The origin of tort law's "neighbour" principle can be traced to the Christian imperative of treating others as we do ourselves. The freedom to teach these important lessons is academic freedom, and freedom of religion is only of interest for those wishing to prolong a straw man argument pitting equality versus religion.
  • James E Turner
    It is hardly a "straw man argument" Religious freedom is a Charter-protected right. This is a collision between two Charter-protected rights of equal value.
    If one believes religious freedom is less important,then that is a different issue, and I suspect many of those who do not support TWU hold that belief.
  • Lee Akazaki
    Allowing a student to attend the school without signing the covenant does not impair the freedom of those who choose to sign the covenant, or of the school in teaching a faith-based curriculum. The school may even get a convert, which is part of a missionary religion. Not allowing a student to attend because he or she cannot in good conscience sign the document impairs the equality right of this student. The issue therefore involves only one right, and does not purport to hold one right higher than the other.
  • James E Turner
    Second point.
    I don't like TWU's Covenant. It is discriminatory; I would have never signed it, but two wrongs never once made a right.
    It is interesting that you said "the school may even get a convert" because that point supports accrediting the Grads of TWU rather than preventing them from becoming lawyers.
    Some Benchers in BC observed the realities of practice would likely change the minds of TWU grads.

    It would be odd indeed if lawyers discounted the virtues of education and persuasion, but that is exactly what a blanket prohibition against the grads of TWU does.

    I feel I must say that I am writing not as “a religious person” (it has been many years since I last went to church in fact) but as a lawyer who abhors the current trend to impose “blanket solutions” on complex problems, or to silence those with whom we disagree, rather than engage them in discussion, and perhaps, even persuade them.
  • James E Turner
    Two points, two posts.
    First, I think you are missing something fundamentally important abour freedom of religion.
    TWU could make the Covenant 'optional', but they have chosen not to. I expect that's because they believe their faith demands celibacy outside of opposite-sex marriage. Period.
    It is their right to make that choice if it is based on a genuine faith.
    There are many choices people make because of a genuine belief that their faith demands it, including choices of diet, dress, personal care and conduct. That many Canadians may find such choices quaint (i.e.,the "horse & buggy" comment) meaningless, foolish, absurd or even distasteful is irrelevant.
    If a compulsory covenant is what TWU grads believe is required of them, then it is their duty to follow that dictate, and their right to do so. We must respect that. So yes, this does involve a collision between two rights.
  • Anne V
    If their faith demands x, then they do x, and there's no problem. Their belief. Their celibacy.

    If their faith demands imposing x on everyone else, then they attempt to impose x on others, and that's a problem called discrimination. Their belief =/= Someone else's celibacy.

    Granted those who believe the bible to be error-free often seem to have read a different bible than I did, but I really don't remember anywhere that it said: "You must ensure all of the people you go to school with follow the same rules you do."
  • James E Turner
    I've discussed the prohibitions against gay sex (actually, the Bible only prohibits anal intercourse, and says nothing about lesbianism) with friends. My favorite is to respond with some other quotes from Leviticus, it being an abomination to wear a garment of two different cloths, or eat shellfish.
    So, no cotton/poly blend; no mussels in garlic cream.
    But is TWU really imposing celibacy "on everyone else'? It's only for the students who CHOOSE to go to that school over any other--a school that isn't only "Christian" but caters solely to fundamentalist Christians (folks I've never really understood). I suppose you could have a gay student, married or CL who was a Christian who wanted to go to a Fundamentalist Christian school.... He'd be "imposed" on.
    And can you really conclude solely on the basis of something signed in law-school that they would "violate Ontario's Human Rights Code" or "refuse gay and lesbian clients." How do you conclude that?
  • Mike J.
    LGBTQ - let's support them !!
    Christians - don't want them!
    Nice province we live in eh - our LS is all inclusive
  • Ian Wilson
    #5 What if I revealed that I was a recovering alcoholic and sugar addict and that I want to rehabilitate myself by attending such a school? And what if the reason I wanted to get my LLM was to rail and litigate against ‘big sugar’ and the junk food producers that are killing us, and I want to go to a place where people have the same goal. Don’t I have that right of association?

    Do we all have to be the same, think the same, and act the same, at all times? Or are we allowed to grow and develop in an environment of our own choosing, without having to adopt the sensibilites of the lowest common denominator, like it or not?
  • Anne V.
    1) Professors and administrators at TWU have complete freedom of thought and speech. They do not have freedom of action, or, rather there can be repercussions on how they choose to act. The suggested repercussion being, if they choose to act in a discriminatory fashion, their graduates will not be accepted as applicants to the Bar in Ontario.

    2) You are allowed to grow and develop in whatever environment you wish. LSUC is allowed to determine what is or is not good character and not accept applicants who choose to grow and develop in, for instance, criminal circles.

    3) If you believe that being supportive of the values of the Canadian Charter of Rights and Freedoms is joining the "lowest common denominator" I disagree, and further suggest that your understanding of Canadian Society --or the meaning of lowest -- is seriously flawed.
  • Ian Wilson
    Boy, a humourless crowd. APRIL FOOL!!!

    But Rick K. is right - just because I graduate from a law program that prohibits alcohol doesn't mean I am going to discriminate against those disabled by alcohol when I start to practice. I have an obligation to respect the Human Rights Code. Therein lies the appropriate protection, given to all disabled, differently sexually oriented, of other races, etc. No??
  • Ian Wilson
    #4 So these folks have the right to eat and drink to the extent that their disability, or their unique and distinct makeup, whichever it is, requires. These people would effectively be barred from attending my natural health based California law school as a result of this covenant, and that is discriminatory.

    It looks like I’d better give up on my plan to get an LLM at a natural health based law school. Simply because other people want to live unhealthily, at least from my perspective, I have to be lumped in with the Twinkie eaters and booze hounds. Do you know how much university kids drink these days?
  • Ian Wilson
    #3 (The same thinking perhaps applies to faith based schools’ restrictions on lust – that is, adultery and homosexuality. They believe that sex is for procreation, not recreation. If you’re not in the process of making little copies of yourself then sex is just lust. As far as older married students having sex goes, that’s permitted, because Abraham and his wife had a baby when he was 125 years old and so perhaps it’s the intention in the effort that counts, not the odds.)

    Second, the bigger problem is that my natural health based law school discriminates against students with disabilities, like alcoholics and obese people who can’t control their constant urges to consume booze and frosted flakes and pretty much everything else on offer in your basic supermarket. The Ontario Court of Appeal has correctly decided that alcoholism is a disability. As likely is hypoglycemia, diabetes and obesity.
  • Ian Wilson
    #2 And, ‘never trust a man who doesn’t drink’, they say. Shouldn’t lawyers be seen to be trustworthy? Abe Lincoln himself said, ‘It is not the years in your life, but rather the life in your years, that counts.’ (The Canadian reference is Trooper: ‘We’re here for a good time, not a long time’.)

    The natural health based educators however would submit that these stress outlets of drinking alcohol and eating poorly could be replaced by what they assert to be the equally effective means of physical activity, such as playing basketball or swimming. Should they be allowed to impose this misguided view on students, despite the fact that many generations of lawyers have proven time and time again that lawyers think best when sedentary, and that such restrictions and limitations on gluttony and sobriety only produce bad lawyers?
  • Ian Wilson
    #1 I’m considering enrolling in an LLM program at a natural health based law school in California where all students are required to sign a community covenant containing a provision requiring abstention from alcohol or refined sugar.

    But before I do I’d like to know whether the LSUC is going to refuse to recognize this degree.

    First, some people will question whether the covenant even has a laudable goal. Law is a stressful profession, they’ll say, and that stress needs to be absorbed and dispersed through pleasurable activities like copious eating and drinking. Such a law school could actually be doing its students a huge disservice by depriving them of well proven coping strategies for lawyers. Eventually they might become depressed for lack of such outlets and commit suicide. Or perhaps ultimately become angry people and assault clients and other lawyers.
  • Anne V.
    LSUC is not going to recognize an LLM for entry into the profession, no matter what school it comes from, as the degree required is an LL.B. or J.D.
  • Anne V.
    This is not about personal choice. Lawyers may believe in any dogma we wish.

    To become lawyers, however, we had to meet standards set by the Law Society. We graduated from approved schools, articled, passed bar exams, and paid fees to the Society. The Society picks and chooses which law schools they recognize, and many foreign schools are not recognized.

    One of the main differences between a law school in Canada and one in another country is that Canadian schools teach law in the context of the Charter. Canadian schools also teach Ethics in the context of the Rules of Professional Conduct extant in Canadian jurisdictions.

    TWU teaches that Charter values are less important than biblical ones, that discrimination is okay if you can get away with it, and that students should, at best, do what Human Rights Codes say, not as their instructors and school chose to do.

    The law should not be taught under the shadow of that hypocrisy.
  • Christine B.
    Very well put! I fully agree.
  • Richard Harding
    I think is would be a huge mistake to start censoring the accreditation of law schools, because the school represents or appeals to a specific subset of students. The essence of democracy is the rule of law developed from a free and open discussion from all points of view. The secular is a very well represented view already, and to prevent those with another worldview from being able to educate as to the legal process or to qualify their adherents to become lawyers, would be a censorship of the worst kind. The law itself both reflects and creates community values. It needs input from those well trained from every conceivable viewpoint, if it is not become a tyranny of its own. The standards to become a lawyer are set by the law societies, not the schools. If the school curriculum meets the standards, regardless of the subset they represent or choose to educate, they should qualify for accreditation.
  • Warren Griffin
    It seems to me that the refusal to recognize the ability to practice law in Ontario once a person has fulfilled the legal requirements of a province is as discriminatory as not admitting a candidate to law school because of their sexual orientation. Once the individual has been admitted to law school and has graduated, the issue is over- or should be. Because someone may have particular beliefs as to whether this or that practice is appropriate or not doesn't mean that the person is unqualified or would not advocate for a client's rights. It strikes me as intolerant and arrogant to suggest that we should not recognize someone's ability to practice law because we disagree with her/his beliefs.
  • Micheal P. Hudec
    The fact that the covenant prescribed by Trinity Western's law school requires adherence to views held by many Judeo Christian faiths should not be a basis for refusing accreditation of the Law School. It is a fundamental principle of freedom of speech that we be premitted to express views on all matters even if others do not agree with the view. The opponents of Trinity Western are equating discrimination with the right to act in accordance with conscience and genuinely held religious beliefs. Opponents of the Trinity Western philosophy have the right to voice their concerns and they have the choice not to attend the Law School. We have the right to freedom of religion in Canada, not the right to freedom from religion. If the voices of the opponents of Trinity Western are given their way and accreditation is denied to the Law School, we will have redefined freedom of expression and freedom of religion to mean only conduct that is politically correct.
  • philip brent
    I think it would be a huge mistake by the LSUC to accredit any law school with a covenant such as this which fundamentally violates the freedom of choice of an individual student to legally pursue their sexual freedom.
    Can the LSUC morally ally itself with a philosophical orientation that went out with the horse and carriage. Once the school is recognized, what would stop the expansion of the covenant to include other activities deemed to be offensive by the school administration.

    A huge step backward for the LSUC.
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