Is it discriminatory to discriminate against an organization that discriminates in the name of religion?
That is one element at the core of an extraordinary debate today at the Law Society of Upper Canada (LSUC). The law society, which regulates the legal profession in Ontario on behalf of the public, chose to hold the public, broadcast session in response to an accreditation request from a religion-centred law school in British Columbia. Graduates could be entitled to practice law in Ontario.
The issue comes to a vote at the April 24 Convocation.
Today’s session saw lawyer benchers getting choked up as they spoke of discrimination faced by their ancestors in this country. Many chose to self-identify as adherents of various beliefs, non-belief systems, deeply held convictions, and orientations.
Duty to Report Self and Others
Overwhelmingly, the benchers asked that Trinity Western University (TWU) respond to their concerns with the serious human rights conflicts apparent in the university’s “community covenant.” Students are to report themselves and others who do not abstain from “sexual intimacy that violates the sacredness of marriage between a man and a woman.”
Convocation will make its decision based on procedural fairness, rather than consider Human Rights acts or follow stare decisis, per se. TWU representatives and legal counsel attended today’s session. The university will have an opportunity to respond to the issues and questions raised, both in writing and orally, before the April 24 vote.
Benchers have been asked not to make up their minds about the accreditation question until they have heard the TWU response.
Reminder of Past Discrimination
Among today’s passionate and focused speakers, Susan Hare, Avvy Yao-Yao Go and others spoke of discrimination’s effects on minorities in Canada. Janet Minor noted that TWU’s convenant would pose a problem for “common-law straight people” who wanted to attend the university, as well as those who practice other belief systems, and atheists.
That concern, of seeming to place religion higher on a “hierarchy of human rights,” was echoed by benchers such as Gerald Swaye, who said: “The principle is there. Discrimination within any institution is just plain wrong in this day and age.”
Hobson’s Choice of Rights to Prevail
Speakers including Christopher Brett admitted they struggle with the TWU issue because it seems to involve competing human rights, such as freedom to practice religion, and freedom from discrimination based on marital status and sexual orientation. While each is protected under the Charter, ex-officio bencher Clayton Ruby noted that Supreme Court decisions “attenuate” those rights.
Ruby was among many who questioned the practice of couching discrimination as a religion-based human right. He said, “It is wrong to equate being gay with being a moral failure in the eyes of right-thinking Christians. It is hateful, it is bigotry. We are on the fringes of claims that can be made about religion.”
TWU has received preliminary approval for its proposed program from the Federation of Law Societies of Canada’s Approval Committee. The British Columbia government has also approved the TWU application.
Under Law Society By-law 4, the Law Society must consider and decide on the accreditation of TWU with respect to graduates of TWU who may practise law in Ontario.
The question before Convocation is:
Given that the Federation Approval Committee has provided preliminary approval to the TWU law program in accordance with processes Convocation approved in 2010 respecting the national requirement and in 2011 respecting the approval of law school academic requirements, should the Law Society of Upper Canada now accredit TWU pursuant to section 7 of By-Law 4?
After B.C. and Ontario consider the accreditation request, Nova Scotia and New Brunswick will follow suit, Treasurer Tom Conway told Convocation.
LSUC’s TWU page
Cases raised during today’s debate include:
Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11,  1 S.C.R. 467
Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37,  2 S.C.R. 567
R. v. N.S., 2012 SCC 72,  3 S.C.R. 726