“Between a man and a woman.”
Those “six little words” were at the centre of an unprecedented decision at the Law Society of Upper Canada (LSUC) today, as Convocation voted down accreditation for a law school at an evangelical Christian university in Langley, B.C. It is the first time the Law Society has turned down accreditation for a Canadian law school.
From the perspective of many benchers, those six little words in themselves are discriminatory, and the refusal to accommodate people with different convictions about marriage is a protection too far. Trinity Western University (TWU) has its students sign a “community covenant.” Under the 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.”
School Will Go Ahead, Regardless
After an all-day debate and more than 30 Bencher speakers, the final vote this afternoon was 21 in favour of accrediting the program, 28 against, and one abstention. The five paralegal benchers voted: Corsetti, Yes; Burd, Yes; Haigh, Yes; Lawrie, No. Lippa, No.
At a press conference after the decision, TWU president Bob Kuhn said the school will go ahead with its law program, and count on the accreditation from other provinces and bodies, including its home province, Alberta and Saskatchewan, and the Federation of Law Societies of Canada.
From the TWU point of view, the school is under pressure to remove those six little words from its “community covenant,” or have its law students disadvantaged by not being able to be licensed in Ontario. Kuhn told Convocation “Evangelical Christians are a minority” and that millions of Christians are paying attention to this decision.
Two Days of Legal, Moral, Policy Debate
The intersections of competing rights and competing legislation, conflicting duties and responsibilities, accommodating diversity and respecting differences — these are at the heart of today’s discussion and decision.
The crux of the debate, and the focus of the legal, moral and public interest choices presented, was this: If a school’s protected religious rights infringe on a student’s protected human rights, should that school be accredited by an organization whose members are sworn to uphold human rights?
Today’s was the second of two special Convocations, to determine whether graduates of the TWU law school program will be able to article and be called to the bar in Ontario. Under Law Society By-law 4, the Law Society must consider and decide on the accreditation with respect to graduates of TWU who may practise law in Ontario. The LSUC’s mandate is to ensure law school graduates will meet its standard of learning, competence, and professional conduct.
‘History Will Judge Us’
Some of the emotion, passion and legal argument that characterized the April 10 special Convocation returned in today’s debate and vote. The April 10 debate saw Benchers get emotional as they spoke of personal and community experiences with discrimination. Today, Julian Falconer was first to bring the passion and the personal back to the debate.
“History will judge us,” Falconer told Convocation. “My sons will read this transcript in the future.”
Falconer said his questions and concerns from April 10 had not been adequately responded to by Trinity Western, either in its 69-page written response, or in the president’s oral presentation today.
The accreditation issue has brought religious questions and human sexuality back in the public eye in ways that many had not seen in decades, and did not expect to see again.
Hate-Filled, Derogatory Comments
In his remarks to Convocation that began today’s session, Kuhn referred to abhorrent comments and messages he said the school had received since the accreditation issue came to such public attention. Kuhn told Convocation about hateful comments made about TWU and the hate messages it had received, since its efforts to get accreditation for the law school.
Bencher Avvy Yao-Yao Go said she reported some violent emails to the police, after she spoke against accreditation, April 10. Harvey Strosberg, a former Treasurer, reminded Convocation that he got hate mail, some of it from lawyers, when he invited gays and lesbians to an event at Osgoode Hall in the 1990s.
Bencher Howard Goldblatt took Kuhn to task for his admittedly harsh comments. “The record is replete with civility and respect,” Goldblatt said, of the April 10 debate. “We are exercising our statutory discretion” and, in a reference to Kuhn’s statements: “I am not a tool of political conformity.”
Unanswered Question of Accommodation
TWU submitted a formal written response to concerns Benchers raised April 10. Some Benchers said they were disappointed with what they saw as a failure to adequately respond to some of their questions and issues raised. Kuhn said the school answered “all questions that were relevant to the decision-making process for Convocation.”
TWU’s response, which is available at the Law Society website, includes case law and opinions from across Canada.
Beth Symes was among the speakers who argued that freedom of religion does not trump the other rights in the charter; rather, rights must be balanced. Symes noted that the school has not provided any alternative or accommodation for its law school applicants.
Convocation used a procedural fairness process, exercising its authority to use discretion in the public interest, to reach its decision. Treasurer Conway said at the press conference that the LSUC has not aligned its policies with those of the Federation of Law Societies of Canada.
Conway would not speculate on the next steps for the TWU accreditation process, including suggestions the issue will be decided ultimately by the Supreme Court.
The law school has been approved for accreditation in B.C., Alberta, Saskatchewan, P.E.I., and Nunavut.
The question before Convocation was:
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?
B.C. Reversal Possible; N.S. Says ‘Yes, If’
The B.C. Law Society has accredited TWU, but its members will have an opportunity to reverse that decision. Some 1,117 members signed a petition for a vote among all its members in good standing.
The LSBC is now obligated to hold the meeting within 60 days, Mulligan says, and all B.C. lawyers in good standing will be able to vote on a motion to reverse the accreditation of TWU’s law school.
Ontario does not have a provision that would allow a members’ vote similar to the one in B.C.
The Nova Scotia Barrister’s Society voted on TWU accreditation, April 25. Members there cited the community covenant’s wording on sexuality as a primary reason for the governing body’s opposition to having Trinity graduates able to become licensed in the province. In that vote, 10 members voted in favour of conditional approval, only if the covenant wording is changed; nine voted no to accreditation.
June will prove an important month for Trinity Western.
The Law Society of Newfoundland and Labrador will vote June 6 on TWU accreditation.
The B.C. licensees could vote on a motion to reverse approval, and the Law Society of New Brunswick is to vote on accreditation. The N.B. society has invited both the public and TWU representatives to make presentations in advance of its vote, June 27.
TWU plans to open its law school in 2016.
Trinity Western University mulls lawsuits
Cases referenced April 10 and 24:
Trinity Western University v. College of Teachers,  1 S.C.R. 772, 2001 SCC 31.
Dunsmuir v. New Brunswick,  1 S.C.R. 190, 2008 SCC 9.
R. v. Big M Drug Mart Ltd.,  1 S.C.R. 295.
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