On April 11, 2014, the benchers of the Law Society of British Columbia approved the application of the future law school of Trinity Western University, a Christian faith-based university located in the Fraser Valley of British Columbia, to be an accredited law school. TWU obliges its students to sign and comply with a religious-based covenant that only sex in marriage between a man and a woman is permitted. The concern is that this covenant discriminates against gays and lesbians (and unmarried couples). The Law Society’s vote was 15 to 6 in support of the application. One of British Columbia’s most eminent constitutional scholars, Joseph Arvay, Q.C., was one of the six who opposed the application. On April 24, 2014, the Law Society of Upper Canada rejected TWU’s application for accreditation. The vote was 28 to 21 against accreditation. The next day, the Law Society of Nova Scotia met and voted 11 to 9 to approve TWU’s application — on the condition that TWU drop the requirement that its students sign and respect the covenant. In the meantime, back on the West Coast, over 1000 members of the Law Society of British Columbia signed documents demanding that the decision of the Law Society’s benchers be reconsidered by a full meeting of the membership. Only 500 such members were necessary to require such a special meeting. That meeting will have to be held sometime in the next two months. This collision between equality and anti-discrimination rights on one hand and freedom of religion has been played out before. The British Columbia College of Teachers and TWU went to the Supreme Court on this issue nearly 15 years ago and TWU won: Trinity Western University v. British Columbia College of Teachers, 2001 SCC 31.. Before the law societies, TWU has argued that this case is no different. I must say that I disagree.
TWU’s application for accreditation brings into a classic conflict two of the principal and fundamental tenets of Canadian constitutional law. One is freedom of religion, now protected by s. 2(a) of the Charter of Rights and Freedoms. That is the principle that TWU points to in support of its application. The other is equality before and under the law and the right not to be discriminated against on the basis of a number of characteristics, including sexual orientation. TWU’s covenant, of course, flies in the face of one of the central constitutional values and norms, the right to be free from discrimination.
In my respectful opinion, it is one thing to be a school that requires students of a like religious background to comply with a religious tenet. One might study the arts, the sciences, or business administration in such a school without undermining any constitutional law or norm. It is another one for a branch of government to accredit a law school for the purposes of admission to the legal profession for the province.
I do not consider the decision of the Supreme Court of Canada in Trinity Western University v. BC College of Teachers to be determinative of the issue. The teaching profession and the legal profession are not the same thing.
The legal profession has a constitutional role to play: an independent bar with members prepared to stand up for the law and to fight for the rights of their clients is an inherent aspect of our constitutional structure. The law society’s members must seek to uphold the law. Lawyers become officers of the courts of the province. They become the future judges of the country – the judiciary which constitutes the third pillar of our governance and the one that is sworn to protect and uphold the supreme law of the land, the Constitution.
The teaching profession, as important as it may be, does not have that role. This fundamental legal distinction is one of the principal reasons why the law societies cannot accredit TWU unless, as in Nova Scotia’s case, TWU is required to drop its insistence on the discriminatory covenant.
The Law Society is the provincial legislature’s legal delegate that is charged with determination of which legal education system will produce future lawyers and ultimately judges. Lawyers and the institutions that govern them are simply too closely integrated into the legal and judiciary systems to allow for discriminatory behaviour to be condoned or accepted. By accrediting such a school having such a discriminatory covenant, the Law Society becomes complicit in the school’s discrimination against gays and lesbians.
Can the Law Society avoid discriminating against gays and lesbians (amongst others) and still respect the freedom of religion of TWU’s staff, faculty, administration and students? Yes, it can.
In this vein, I point out that it is one thing to be free from interference in one’s practice of a religion. It is another to be proactively involved or proactively condoning a discriminatory practice. Nothing is stopping TWU from developing and initiating a law school. What we are talking about here is the accreditation of that law school’s legal education system for the purposes of admitting future lawyers into the legal profession by a governmental institution, the law society. The benchers and members of the Law Society can respect TWU’s freedom of religion. But they do not have to condone or accept the covenant that is born of that university’s religious tenets, a covenant that has the effect of discriminating against, amongst others, gays and lesbians.
As a member of the Law Society, therefore, I will be voting to oppose TWU’s accreditation.
I have read Mr. Grant’s comments with great interest. I come to the same conclusion he reaches, though I arrive at that destination by a different route. In my view, the key argument in this debate is that if one wants to establish a law school and have it accredited, it is imperative to accept IN ITS ENTIRETY the fundamental principles of the constitutional legal system. The founders of a prospective law school cannot establish their institution by cherry-picking the components of the legal system they believe in. Such a course of action would produce lawyers who may apply and therefore plead in court a different constitution than the one democratically adopted by the country at large. In our constitutional soil, the tree of legal evolution is living, but there is room for only one tree. Were it otherwise, some law schools may dispute linguistic rights, democratic rights, etc. etc. That would result in fracturing of the constitutional system in theory and chaos in practice.