Lawyers confident TWU decision will stand

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 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."

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