Equality Rights, Freedom of Religion and the Training of Canadian Lawyers
Introduction
Should lawyers be trained at law schools that effectively exclude LGBTQ students? Prior to 2013, our secular and public system of legal education meant this issue never arose. But in December 2013, Trinity Western University (TWU), whose mission is “As an arm of the Church, to develop godly Christian leaders”, received approval from British Columbia’s Advanced Education Minister to open a law school. TWU’s Community Covenant Agreementrequires students (and other members of the TWU community) to refrain from “sexual intimacy that violates the sacredness of marriage between a man and a woman.”
TWU’s insistence that its future law students and law professors abide by this Covenant has sharply divided the legal profession and academy with respect to the appropriate place for TWU law school and its graduates in the legal landscape. In this article we outline the developments in relation to TWU law school, including responses by law societies, governments, the courts, and law schools. We also set out some of the legal and policy issues raised by TWU law school. We do not here take a position on TWU’s application; our purpose is simply to foreground the other articles in this newsletter.
Responses by Law Societies, Governments and the Courts
In the first instance, the Federation of Law Societies – the non-binding but influential national working group of the provincial and territorial law societies – struck an Approval Committee to consider TWU’s proposed law degree. While such a Committee would normally be composed of 4 members of the profession and 3 law deans, the 3 law deans stepped down after the Canadian Council of Law Deans took a formal position opposing TWU’s application. Another Committee member stepped down during the process, with the result that the final decision was made by just 4 of 7 Committee members, and only 3 members of the original Committee. The Committee considered TWU’s proposal and also opposing submissions that emphasized that TWU’s Covenant “effectively bans LGBT students” and may prevent it from properly teaching legal ethics and professionalism or constitutional law. The Approval Committee acknowledged tension between the Covenant and TWU’s ability to satisfactorily instruct students in Constitutional Law and Legal Ethics and Professionalism. It concluded, however, that this tension created only a “concern,” not a “deficiency,” given TWU’s statement that its courses would “fully and appropriately” address” ethics and professionalism,” and that “the courses that will be offered at the TWU School of Law will ensure that students understand the full scope of [human rights and constitutional] protections in the public and private spheres of Canadian life.” As a consequence, the Committee granted preliminary approval to TWU.
The Federation’s decision was adopted by the law societies in several Canadian provinces and territories, including Alberta, Saskatchewan, Prince Edward Island, Newfoundland and Labrador, and Nunavut, although not necessarily with enthusiasm. For example, the Law Society of Alberta explained that while it had delegated its decision to the Federation, it had advised the Federation that “a review of the existing criteria [for law school approval] by the Federation is advisable… consistent with the recommendation… that the possibility of a non-discrimination provision should be discussed.”
Turning to the decisions of individual law societies, in April 2014, the benchers of the Law Society of British Columbia (LSBC) voted 20-6 against a motion barring TWU graduates from admission to the profession. However, three months later, its membership passed a non-binding resolution that the LSBC reverse its decision. In September 2014, the LSBC initiated a referendum, asking its members to vote on the resolution that “the proposed law school at Trinity Western University is not an approved faculty of law for the purpose of the Law Society’s admission program.” The resolution passed by a 74% majority, and this outcome was subsequently ratified by the LSBC’s benchers in October 2014, effectively withdrawing the LSBC’s prior support for TWU law school. TWU has now launched an application for judicial review against the LSBC (for a decision on a preliminary matter in the case see Trinity Western University v. Law Society of British Columbia, 2015 BCSC 416).
At the same time that the LSBC made its initial decision in favour of admitting TWU law students in April 2014, anaction was initiated in British Columbia Supreme Court by prospective law student Trevor Loke to quash the BC Advanced Education Minister’s approval of TWU’s law school on constitutional grounds. In December 2014, following the LSBC’s referendum results and ratification, Minister Amrik Virk revoked approval for the law school. According to the Minister, “The current uncertainty over the status of the regulatory body approval means prospective graduates may not be able to be called to the bar, or practise law, in British Columbia. . . There is currently nothing in the terms and conditions of consent to prevent TWU from enrolling students in the proposed law program before the law society challenges are resolved. I do not believe this would be in the interests of students given the current level of legal uncertainty.” The Minister also indicated that TWU had the option to renew its request for approval of its proposed law school once its legal issues were resolved. Following his revocation for the law school, he successfully argued that Loke’s action should be declared moot (see Loke v. British Columbia (Minister of Advanced Education), 2015 BCSC 413).
In Ontario, Law Society of Upper Canada (LSUC) benchers voted 28-21, with one abstention, to reject TWU’s application for accreditation (see the transcript of the LSUC proceedings here). TWU has challenged this decision in Ontario Divisional Court, with hearings set for June 2015. A number of parties have been granted intervener status in this action including the Christian Legal Fellowship, the Evangelical Fellowship of Canada and the Christian Higher Education Canada, the Judicial Centre for Constitutional Freedoms, Out on Bay Street and OUTlaws, the Advocates’ Society, and the Criminal Lawyers Association (see Trinity Western University v. Law Society of Upper Canada, 2014 ONSC 5541).
Many of these groups also intervened in TWU’s judicial review application in Nova Scotia, which challenged the April 2014 decision of the Nova Scotia Barrister’s Society (NSBS) to make accreditation conditional on TWU withdrawing its Covenant or granting an exemption to law students. In January 2015, in the first legal decision on the merits concerning TWU law school, Justice Jamie S. Campbell ruled in favour of TWU (see Trinity Western University v. Nova Scotia Barristers’ Society, 2015 NSSC 25). He held that the NSBS did not have jurisdiction under the Legal Profession Act, SNS 2004, c 28, to make a decision that required TWU to change its policies. He noted in particular that there was no evidence that TWU law graduates would lack the training to serve their clients or be more likely to discriminate against them. In the alternative, if the NSBS did have the authority to make the decision it did, Justice Campbell ruled that the decision violated the Charter protected freedom of religion of prospective TWU law students, which included the right to obtain an education in accordance with one’s faith. He further held that the decision could not be justified as a reasonable limit on freedom of religion. According to Justice Campbell (at para 13), “It is hardly a pressing objective for a representative of the state to use the power of the state to compel a legally functioning private institution in another province to change a legal policy in effect there because it reflects a legally held moral stance that offends the NSBS, its members or the public.” Justice Campbell also awarded costs of $70,000 against the NSBS (see Trinity Western University v. Nova Scotia Barristers’ Society, 2015 NSSC 100).
The NSBS has filed an appeal of Justice Campbell’s decision, indicating that “If left unchallenged, this ruling may significantly restrict the scope of the Society’s authority to uphold and protect the public interest in regulating the legal profession. It may also prohibit the Society from continuing to take on a wider role in the promotion of equality in all aspects of its work, including in the administration of justice.”
In New Brunswick, members of the Law Society Council originally voted in June 2014 to accredit TWU law school by a vote of 14 to 5. The Council then held a Special General Meeting in September 2014, where members of the Law Society of New Brunswick (LSNB) voted 137 to 30 directing Council not to approve TWU law school as a recognized faculty of law. The resolution was not binding on Council, however, which – as a result of a tie vote in January 2015 – upheld its original decision to accredit TWU law school. The LSNB is therefore the only law society that has considered the matter independently of the Federation of Law Societies and has decided to approve TWU law graduates.
Our discussion so far has focused on provincial regulators and governments, but the federal government has also played a role in the legal proceedings concerning TWU law school. The federal Attorney General intervened in the Nova Scotia litigation, and will also intervene in the Ontario litigation. Its position has been that refusing to admit TWU law graduates to a law society is unreasonable: “The public interest does not require banning all students from Trinity Western University from becoming members of the Law Society … (the end result of the failure to accredit Trinity’s Law School). This is a disproportionate approach as the [Law Society] can deal with discriminatory conduct of a member on an individual basis.” The federal government’s interventions have been called “perplexing” by counsel for OUTlaws, given that the provinces regulate the legal profession.
We are therefore left with three law societies that have effectively decided not to admit TWU law graduates to the profession, with challenges to those decisions by TWU underway in all three jurisdictions. The remainder of law societies across Canada have voted in favour of accepting TWU graduates either directly through their own decision making bodies, or indirectly by accepting the decision of the Federation of Law Societies.
In addition, the legal blogosphere has allowed individual lawyers to express their views on TWU law school. For a range of opinions see Omar Ha-Redeye, “A Law School for Homophobes” (Slaw, July 28, 2013); Janet Epp Buckingham, “What’s all the fuss about Trinity Western University” (The Cardus Daily, February 10 2014); Julie Sobawale, “The TWU Debate Continues” (Slaw, February 26 2014); Susan Van Dyke, “What Will a Trinity Western University Law Degree Be Worth” (Slaw, April 24, 2014); Mitch Kowalski, “With TWU Decisions – Whither the Federation of Law Societies” (Slaw, April 27 2014); Jamie Maclaren, “TWU Law and the New Reality” (Slaw, October 8, 2014); Lee Akazaki, “B.C. Minister’s reason for revoking TWU’s JD hurts the legal academy”(Gilbertson Davis LLP Blog, December 31 2014); Albertos Polizogopouls “A Good Day for Religious Freedom in Canada” (Faith Today, January 29, 2015).
The Response by Law Schools and Legal Academics
Law schools and legal academics have also weighed in on TWU law school. A number of law schools passed faculty council resolutions or wrote letters expressing concerns to their law societies about accepting TWU law graduates: see for example the joint letter from the University of Alberta and University of Calgary Faculties of Law to the Law Society of Alberta, and faculty council resolutions from the University of Victoria (see Gillian Calder, “UVic Law and the Debate Over Accreditation of a New Law School at Trinity Western University, The Advocate, September 2014); University of British Columbia; University of Windsor, Osgoode Hall Law School; Queen’s University; and Dalhousie University. Student organizations have also been active in advocating to law societies on TWU, largely through theOUTlaws branches at law schools across the country, but also through other student organizations.
Amongst legal academics, TWU’s proposal for a law school has been criticized by Elaine Craig, “The Case for the Federation of Law Societies Rejecting Trinity Western University’s Proposed Law Degree Program” (2013) 25 Canadian Journal of Women and the Law and “TWU Law: A Reply to Proponents of Approval” (2014) Dalhousie Law Journal (forthcoming). Angela Cameron, Angela Chaisson and Jena McGill defend the decisions of law societies not to accredit TWU in “The Law Society of Upper Canada Must Not Accredit Trinity Western University’s Law School”, (2014) University of Ottawa Working Paper Series. On the other hand, TWU’s law school has been defended by Faisal Bhabha, “Let TWU Have Its Law School” (Slaw, January 24, 2014) and Dwight Newman, “On the Trinity Western University Controversy: An Argument for a Christian Law School in Canada” (2013) 22:3 Const. Forum 1-14. The implications of rejecting TWU’s application have been questioned by Carissima Mathen and Michael Plaxton, “Legal Education: Religious and Secular: TWU and Beyond” (2014) University of Ottawa Working Paper Series. Saul Templeton has critiqued the discourse around the private status of TWU in “Trinity Western University: Your Tax Dollars at Work” (ABlawg, March 9, 2015); and Paul Daly has questioned the administrative law basis for Justice Campbell’s decision in Nova Scotia (“Reviewing Regulations: Trinity Western University v. Nova Scotia Barristers’ Society 2015 NSSC 25” (Administrative Law Matters, February 5, 2015)). Some legal academics and law students also made submissions to the law societies in their jurisdictions (see e.g. Dianne Pothier, “An Argument Against Accreditation of Trinity Western University’s Proposed Law School” reprinted, (2014) 23(1) Constitutional Forum).
Legal and Policy Issues
That TWU’s proposed law school has led to conflict and division amongst Canadian regulators, governments, lawyers, and the legal academy is unsurprising given the troubling legal and policy issues it raises. Over the past decade the legal system has clearly recognized the equality rights of LGBTQ Canadians. But the Canadian constitution also protects freedom of religion, and some human rights codes – including that in BC – protect the ability of religious organizations to grant preferences to members of their own groups (see Human Rights Code, RSBC 1996, c 210, s 41).
The balance between these interests has been considered previously in the context of professional regulation, but that consideration does not eliminate uncertainty about the appropriate legal and policy response to TWU law school. In 2001, the Supreme Court of Canada reviewed a decision by the British Columbia College of Teachers not to accredit TWU’s teaching college in part because of its Community Covenant. The Court overturned the College’s decision for a number of reasons, but in part because it was of the view that “the admissions policy of TWU alone is not itself sufficient to establish discrimination” under the Charter given that it is “the voluntary adoption of a code of conduct based on a person’s own religious beliefs” (Trinity Western University v. British Columbia College of Teachers, 2001 SCC 31, para 25 (TWU v BCCT)). But the Court’s reasoning in that case may not determine the outcome for TWU. The legal rights of LBGTQ people have evolved significantly since 2001. Legal education arguably raises different issues.
The decision does, however, observe the basic tension between freedom of religion and equality rights that TWU’s Community Covenant raises. On the one hand TWU’s supporters can claim the significance of their religious convictions and the traditional religious position requiring sexuality to be confined to heterosexual marriage. On the other hand, its opponents can note that there is no normative reason to view discrimination against LGBTQ people on religious grounds as any more acceptable than discrimination against people of colour or women. That religions have always discriminated against LGBTQ people creates a longer history of which to be ashamed; it does not create a justification for continuing acceptance of their doing so.
In addition, the TWU case raises regulatory conflicts. The approval (or rejection) of a law school that effectively excludes LGBTQ persons can occur through the Ministry of Advanced Education, through provincial human rights legislation or through each of the provincial legal regulators who determine which lawyers may practice in its jurisdiction. Which of these bodies is best suited to exercise this jurisdiction? It can be argued that human rights tribunals are more suitable than legal regulators to assess discriminatory conduct by TWU. But at the same time, if legal regulators have the jurisdiction to accredit law schools, and if they have a reasonable basis for concluding that a law school’s conduct is discriminatory, than ought they to decline to exercise their jurisdiction simply because one province’s human rights legislation exempts religious organizations from anti-discrimination obligations?
Another complexity arises from the fact that the Canadian legal regulators have agreed to work cooperatively through the Federation of Law Societies. Some legal regulators, such as the Law Society of Alberta, have put that cooperation ahead of conducting their own debate over how TWU’s law school should be treated. Other law societies in Ontario and Nova Scotia have refused to do so. The absence of consensus on the Federation’s actual authority and legitimacy has been revealed by the TWU issue but may also have contributed to the divided response to the Federation’s initial report. Yet the implications of that divided response are uncertain given law societies’ work towards national coordination. If TWU graduates can be admitted in Alberta, then what is to stop those graduates from being called there and then moving to Ontario, invoking the mobility agreement to which all the law societies are signatories? And if they are not permitted to move to Ontario, then what is the effect of that decision on inter-provincial mobility, and how does that cohere with constitutional protection of mobility rights?
There are many complexities raised by TWU law school, and we commend the Canadian Bar Association and the editors of this newsletter for gathering a broad range of views on how those complexities ought to be resolved.
An earlier version of this article appeared in (2014) 17(3) Legal Ethics 437-441.
Postscript: On July 2, 2015, after this article when to press, the Ontario Divisional Court upheld the decision of the Law Society of Upper Canada to refuse to accredit Trinity Western law school. See Trinity Western University v The Law Society of Upper Canada, 2015 ONSC 4250.