It’s not enough that there are some who claim there are already too many law schools in Canada, too few articling positions, and too much competition in the job market for junior lawyers. Now they want to make another law school which appears reserved for homophobes, or at the very least a law school which explicitly states that homosexuality is wrong.
The proposed law school would be housed at Trinity Western University (TWU) in Langley, B.C., a private Christian institution associated with the Evangelical Free Church of Canada, with approximately 3,500 students. The school has a Community Covenant Agreement which states:
…according to the Bible, sexual intimacy is reserved for marriage between one man and one woman, and within that marriage bond it is God’s intention that it be enjoyed as a means for marital intimacy and procreation
Both students and faculty must agree to the principles in the Agreement, which is intended to operate both off and on campus, and students can be refused admission or removed if they violate its terms.
The law school proposal was made one year ago in 2012 by TWU to the BC Ministry of Advanced Education and the Federation of Law Societies of Canada (FLSC), with an intended goal of launching in Fall 2015.
The FLSC’s Task Force on the Canadian Common Law Degree began an investigation in 2007 to create national standards for law schools, and released areport two years later which recommended the FLSC adopt a national academic requirement for entry. A subsequent report in 2011 led to the development of the Canadian Common Law Program Approval Committee to approve all law schools across Canada meeting standardized national requirements.
Although the law societies across Canada maintain the technical ability under statute to debate these issues themselves, they have agreed to allow the FLSC to conduct the technical analysis of schools to help develop national standards.
The Canadian Common Law Program Approval Committee was intended to assess technical requirements, and did not anticipate the issues raised in the TWU proposal. Consequently, the FLSC created a Special Advisory Committee on Trinity Western University’s Proposed School of Law to provide a non-binding report to the FLSC Council.
The ensuing uproar has the headlines saying, “Extra, extra! Lawyers fighting lawyers over law school!“. The National Post’s Jonathan Kay has called opposition to a TWU as “narrow minded,” and provides two main points in support of the proposal:
- “…the Supreme Court of Canada already has produced a direct precedent involving a professional school whose students and faculty were subject to Christian behaviour codes.”
- Canada already has almost two-dozen non-Christian, left-leaning law schools whose curriculum and faculty comport well with Mr. Flanagan’s [Queen’s law Dean] views.
The National Post’s Chris Selley reviews the analysis by Kay, who himself is a lawyer, and concludes “Kay wins.”
Not so fast.
The 2001 SCC case Kay cites is Trinity Western University v. British Columbia College of Teachers [“BCCT“], which also involves TWU, but in their bid for a teacher education program. The case largely involved the interpretation of s. 4 of the Teaching Profession Act,
4 It is the object of the college to establish, having regard to the public interest, standards for the education, professional responsibility and competence of certificate holders and applicants for certificates of qualification and, consistent with that object, to encourage the professional interest of certificate holders in those matters.
The problem here is that the Teaching Profession Act has since been repealed and replaced by the Teachers Act. The SCC discussion in BCCT focused on the order of mandamus and the exercise of discretion under the former Act, and whether the the college properly weighed the various rights at stake. The analysis would be quite different under the new Act given the presence of a privative clause and the express route for certification appeals which requires written reasons.
The analysis by the SCC in BCTT also notes that the school teachers have limited expertise in human rights issues and balancing competing interests in society. The FLSC stands in an entirely different position, and the creation of the Special Advisory Committee ensures transparency and written reasons.
The CBA’s Sexual Orientation and Gender Identity Conference (SOGIC) and Equality Committee provided the Special Advisory Committee an opinion letter on March 18, 2013, which cited the Supreme Court decision in Doré v. Barreau du Québec discussing the Quebec bar association and stated at para. 24, “administrative decision-makers must act consistently with the values underlying the grant of discretion, including Charter values.”
How those Charter values play out in allowing a law school which appears to indicate disregard for the s. 15 rights (based on analagous grounds via Egan) when there appears to be a competing religious right is something the Special Advisory Committee will certainly take particular pains in expressing. The FLSC is also developing national good character standards, and its difficult to reconcile that with the endorsement of an educational institution which would explicitly and flagrantly exclude law students on the basis of sexual orientation.
Kay’s second point appears to be that every other law school across Canada is already gay-friendly, so having one non-friendly school isn’t going to hurt anyone. He also believes this is the best way to achieve ideological diversity in Canada.
Although significant progress has been made in law schools, any openly gay lawyer who has recently attended one will not say they are openly welcoming and safe places of study. More importantly, law graduates exist in a profession consisting of older lawyers, a profession which still maintains significant barriers for homosexual lawyers.
Ideological diversity already exists, as is apparent from the CBA’s letter to the Special Advisory Committee. The SOGIC and Equality Committee letter mentioned above reflects the opinion of those groups and not the CBA as a whole. The covering letter by CBA President Robert Brun clearly states, “CBA members hold a range of views on the question of the approval of this particular law school.”
Creating additional seats for a law school in a private religious institution which excludes significant portions of the population who do not share TWU’s values seems not only irresponsible but reckless. There are several other contenders across Canada for additional law schools if there is a need for more law graduates who can better meet the interests of the public and the mandate of the law societies.
The legal profession is at a crossroads right now, and what we need is progressive choices and innovative solutions, not regressive and isolationist thinking. Unfortunately it appears as if any lawyers graduating from TWU would likely be part of the latter camp.