The profession will be eagerly watching as the Divisional Court hearing into Trinity Western University’s application for judicial review of the Law Society of Upper Canada’s dubious refusal to accredit its proposed law school gets underway in December.
On April 24, Convocation voted 28-21 against accreditation of the law school after the Federation of Law Societies of Canada and the B.C. Ministry of Advanced Education gave their approval. This means graduates from that law school will not be eligible to enter the LSUC’s admission program. A day after the LSUC decision, the council of the Nova Scotia Barristers’ Society followed suit. The Ontario and Nova Scotia regulators are in the minority, however, as the law societies of British Columbia, Alberta, Saskatchewan, New Brunswick, Prince Edward Island, Newfoundland and Labrador, and Nunavut have all cleared the way for Trinity Western graduates to practise law in their jurisdictions.
At the heart of the controversy lies the community covenant agreement Trinity Western requires its students to sign. The community covenant pledges abstinence from “sexual intimacy that violates the sacredness of marriage between a man and a woman.”
For those who weighed in, the debate pitted religious freedom against the right to be free from discrimination based on sexual orientation.
Freedom of religion, according to Trinity Western and its supporters, includes a right for people of the same faith to establish educational institutions and exclude those who do not share their religious views. Excluding Trinity Western graduates from admission to the Ontario bar violates their right to act on their religious beliefs and discriminates against them on the basis of religion. There is no evidence to suggest that Trinity Western graduates will not “meet the standards of learning professional competence and professional conduct that are appropriate for the legal services they provide” as stated in s. 4.1(a) of the Law Society Act so as to justify their exclusion.
Indeed, the conclusion reached by the federation’s special advisory committee militates against such a suggestion.
Moreover, Trinity Western University v. British Columbia College of Teachers effectively renders accreditation a foregone conclusion. In that case, the B.C. College of Teachers had found Trinity Western’s application for certification of its teacher education program to be against the public interest because of the community standards contract (a previous version of the existing community covenant agreement) it required its students to sign. Siding with Trinity Western, the Supreme Court of Canada held the Charter of Rights and Freedoms did not apply to the school and, absent concrete evidence that graduates would discriminate when they entered their profession, the law should respect the freedom of religion of individuals studying there.
On the other side of the divide are those who point to the effect of Trinity Western’s community covenant, which is to preclude lesbian and gay individuals from applying to the school or living there openly without the spectre of discipline, including expulsion. Such discrimination on the basis of sexual orientation offends the Charter, which the LSUC must consider in making decisions within its statutory mandate pursuant to Doré v. Barreau du Québec. The LSUC must act in the public interest as per s. 4.2 of the Law Society Act. It would be contrary to the public interest to accredit a law school with institutional policies and practices that discriminate against lesbian and gay individuals. An institution that publicly and staunchly opposes sexual relations between gays and lesbians cannot impart on prospective lawyers a holistic and balanced understanding of constitutional and human rights law, particularly the jurisprudence on discrimination based on sexual orientation, nor can it foster diversity of opinion and academic freedom. Furthermore, the community covenant is incompatible with the ethical training required of lawyers as per Rule 5.04(1) of the LSUC’s Rules of Professional Conduct dealing with the “special responsibility to respect the requirements of human rights laws in force in Ontario, and specifically, to honour the obligation not to discriminate.”
As for the earlier Supreme Court decision on Trinity Western, not only has the law evolved in the intervening years, but the evidence, issues, and arguments that will arise this time may very well be different. Our collective tolerance for discrimination against the gay community has also changed. This change may tip the scale when Charter rights collide.
Given the compelling arguments put forward by each camp, it is no surprise that former LSUC treasurer Tom Conway professed in Law Times recently that “the most difficult issue I’ve had to deal with as treasurer was the Trinity Western application.” After much intellectual wrangling with my feminist values, I have come to conclude that as distasteful and discriminatory as the community covenant is, the LSUC’s decision appears equally distasteful and discriminatory in effect. By denying accreditation to Trinity Western, the law society categorically denies its graduates the chance to practise in Ontario because they decided to exercise their freedom of religion to live by their Christian ethos and attend a private Christian university that reflects those values as set out in the community covenant without giving them an opportunity to demonstrate they have the legal and ethical competency to provide legal services.
We must remember that accreditation of Trinity Western entails only the eligibility of its graduates to enter the bar admission program. The LSUC’s licensing process is a comprehensive one consisting of the barrister and solicitor exams, completion of articling or the law practice program, and a good-character check. Unless there is evidentiary support for the proposition that all Trinity Western-trained lawyers would be unfit to practise in Ontario, the LSUC’s decision shakily stands on theoretical speculation. It would be too easy to brand someone as anti-gay or non-progressive for not agreeing with the LSUC’s decision. Yet given the evidence available when it made the decision, there was insufficient justification even if it might have been the right move. Having said that, the evidence tendered to the court on the judicial review application may well illuminate the issue differently. Assuming the matter will make its way up the judicial ladder, a decision from the Supreme Court will be most welcome as it will provide clarity on an issue that has led to a checkerboard of decisions from provincial and territorial law societies.
Anna Wong is a civil litigator with Landy Marr Kats LLP. The opinions expressed in this article are her own.
