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TWU Law and the New Segregation

As a Bencher of the Law Society of BC, I voted against the accreditation of TWU Law. I was on the losing side of a 20-7 vote. The next day, my wife and I left for a road trip through the American South.

We started in Chicago, marveled at its architecture for a few days and then took an overnight train to Memphis. From there, we drove down the eastern bank of the Mississippi through the “cradle of the civil war” and over Cajun swamps to our final destination of New Orleans. We drove through the rural sun-baked squalor of black Mississippi Delta towns, and the lily-white splendor of former antebellum towns. The ghosts of slavery and Jim Crow still haunted most places that we saw. Entrenched poverty, racial division and inequality remain obvious facts of Southern life.

Our understanding of the Southern black struggle was framed by a visit to the excellent National Civil Rights Museum in Memphis. Located in the former Lorraine Motel where Martin Luther King Jr. was assassinated in 1968, the museum takes you through a series of interactive exhibits on the American civil rights movement (including LGBTQ rights), and then deposits you on the balcony of room 306 where King was shot and killed. Even for white Canadians with lives wholly insulated from racial discrimination, the museum provides a profoundly disturbing window into the experience of hatred and bigotry. It hits you like a punch in the stomach.

But it was the exhibit on Brown v Board of Education of Topeka that brought my mind to present-day Canada. The landmark 1954 case considered whether or not public education systems of racial segregation, premised on “separate but equal” treatment of white and black students, actually served to perpetuate inferior accommodations, services and opportunities for black students. In what is often viewed as its most important decision of the twentieth century, Chief Justice Warren wrote for a unanimous US Supreme Court: “segregation is a denial of the equal protection of the laws”; and “to separate [some children] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.”

While recognizing the legal distinction between public and private education, my mind drew an obvious parallel between the harm that institutional segregation caused black students several decades ago, and the harm that TWU Law’s new brand of segregation will cause LGBTQ students. Deprived of one precious educational opportunity and the many life prospects that follow—all because of a fact of identity no less permanent than skin colour—LGBTQ students will suffer grave losses of human dignity, social inclusion and public standing. In at least a few circumstances, they will be regarded as inferior, treated as inferior, and made to feel inferior for simply being who they are. Such discrimination is behind the exceptionally high rate of self-harm and suicide among Canadian LGBTQ youth and young adults.

Perversely, the parallel between the American South in 1954 and Canada in 2014 is reinforced by some commentators who cast evangelical Christians as the true victims of bigotry in the raging debate over TWU Law. At the furthest extreme, the website therealbigots.com states that the Law Society of Upper Canada’s refusal to approve TWU Law is “the modern equivalent of a “No Blacks Allowed” sign on a restaurant in the 1960’s [sic] in the Deep South.” A milder version of the same argument positions TWU as a well-meaning underdog whose Christian students are subject to constant ridicule and secular disdain.

While undoubtedly true in some circumstances, the unfavourable treatment experienced by some evangelical Christians in Canada cannot begin to compare to the historic abuse, assault, imprisonment and execution suffered by LGBTQ people. It is a rare Canadian neighbourhood where an LGBTQ couple can walk hand-in-hand without legitimately fearing an assault. There are very real and distressing reasons why gay-bashing is commonly associated with physical violence and death. Christian-bashing, on the other hand, commonly refers to verbal ridicule.

If substantial moral arguments for not discriminating against LGBTQ law school applicants are not enough to move TWU Law from its present Community Covenant, the Charter must do the trick. A law society’s refusal to approve TWU Law on the basis of its discriminatory conduct (i.e. its requirement that students ascribe to its Community Covenant) would not unduly infringe upon the freedom of religion of its students or staff. Sifting through the Bible, I cannot find a passage that forbids learning the law next to an LGBTQ person (my knowledge of the Bible is admittedly limited). Nor can I locate a single tenet that requires Christians to be taught in social isolation or educational enclaves that serve to diminish greater social integration, inclusion and mutual understanding. If TWU Law were to admit professed supporters of same-sex marriage, it would not stop other students from living by the terms of an optional Community Covenant, nor from maintaining traditional beliefs about homosexuality.

TWU Law rests much of its case for lawful discrimination on the Supreme Court of Canada’s 2001 decision in Trinity Western University v. British Columbia College of Teachers. It is the basis for the perceived rule of law that informed most of my fellow Benchers’ votes in April. But it is distinguishable and no longer good law in light of changing realities. In short, teachers and lawyers belong to very different professions with very different mandates and opportunities for success. Unlike teachers, lawyers are statutorily required to uphold the public interest in the administration of justice by preserving and protecting the rights and freedoms of all persons. Finally and most importantly, Canada legalized same-sex marriage in 2005 after eight provinces had already done so. The times— they changed.

If that is all still not enough—if sexual orientation is seemingly the last acceptable basis for institutional discrimination and segregation—then our profession’s leaders can do well to find inspiration and guidance in the American South of over sixty years ago. There, against very long odds, civil rights leaders vindicated the notion that any law that degrades the human personality is inherently unjust.

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Comments

  1. Wow! What an interesting post. I just don’t know where to begin. Sounds like a great trip to the American South. I’ve many questions. For instance, how does it compare to the Reserves up North? And, “lawyers are statutorily required to uphold the public interest in the administration of justice by preserving and protecting the rights and freedoms of all persons” aren’t religious beliefs a part of this?

  2. Jamie Maclaren

    Hi Verna. It was indeed a great trip in so many ways.

    From what we saw, there are too many unfortunate similarities between the neglected neighborhoods and sharecropper towns of the South and Indian reserves up here (our own national shame). The poverty and lack of opportunities to rise above it appear very entrenched.

    And yes, religious rights and freedoms are included in BC lawyers’ collective responsibility to uphold the public interest in the administration of justice. I just don’t think that the attendant protections extend to a right or freedom not to sit and learn about Canadian law next to a person who holds the private view that same-sex marriage is perfectly acceptable (we all know it’s legal, after all). I don’t see how that infringes on another’s religious belief.

  3. Thanks for your response, Jamie. However, it’s not the “private view” on the subject of same-sex marriage that TWU appears to oppose but the carrying out of conjugal relations within a same-sex marriage. Of course I would think they would have to have proof and not mere assumption of such relations. Not exactly a healthy environment for learning if there is the existence of constant suspicion and lack of trust.

  4. TWU also opposes the carrying out of sexual relations outside an opposite-sex marriage, which would have put its school off limits to me, a straight male atheist. To say ‘you can have sex only if married’ would in practice, if not in principle, put it as far out of my reach at my age at the time as same-sex marriage.

    We are assuming that the ‘charter’ will be enforced, one way or the other. We are assuming it is enforceable, one way or the other. Are these assumptions valid?

    I don’t find the analogy to segregtation in the American South persuasive. There was no legally or morally respectable counterweight to integration. We in Canada find that the freedom to believe any old religous claptrap to be a Charter value equal in weight to equality rights. A different problem entirely.

    By the way, I also think this statement is exaggerated, these days: “It is a rare Canadian neighbourhood where an LGBTQ couple can walk hand-in-hand without legitimately fearing an assault.”

  5. Jamie, can you expand on your comment:

    “I just don’t think that the attendant protections extend to a right or freedom not to sit and learn about Canadian law next to a person who holds the private view that same-sex marriage is perfectly acceptable (we all know it’s legal, after all). I don’t see how that infringes on another’s religious belief.”

    With respect to freedom of association?

  6. Good post, Jamie. June 10 will be an interesting day.
    Whatever happens, I think it is good for the profession to be so active in this debate.
    Readers may benefit from reading the whole TWU covenant and thinking over the language contained.
    https://twu.ca/studenthandbook/university-policies/community-covenant-agreement.html
    I get a chill, I must admit, when I read lines like:
    “True freedom is not the freedom to do as one pleases, but rather empowerment to do what is best.”
    Hmmm.
    The power to define what “best” means, and dictate the ends to which the free and empowered will work… that resembles true power. Perhaps a tidy revision is in order. “True freedom is not the freedom to do as one pleases, but rather a license granted by those who control you to do what they want you to do.”

  7. Great comment Jamie. This is absolutely a turning point for the members of our Bar, and our governance. I was one of those who made a written submission to the LSBC — drawing the same conclusions as you did — and I applaud your vote. Whichever way the meeting goes on June 10, I anticipate the next Benchers’ election being a very different creature than the last!

    One observation, that I have become more sensitive to as the debate evolves. Many of those of us opposed to the accreditation of TWU are too sloppy in referring in one way or another to TWU’s espousal of “Christian” beliefs. While not a person of faith, I recognize that many (if not most) Canadians who would describe themselves as Christian would also find the intolerant views espoused by TWU as repugnant. We should not let the fringe draw us into lumping all Christians together. Perhaps the love and tolerance preached by the current Pope in this very subject area will serve as an inspiration for many more of that faith, including those now guiding TWU.

  8. Thank you, Jamie. Fantastic article.

  9. Sounds a bit like Lenin: freedom is the ability to do what is necessary.

  10. “I cannot find a passage that forbids learning the law next to an LGBTQ person (my knowledge of the Bible is admittedly limited). Nor can I locate a single tenet that requires Christians to be taught in social isolation or educational enclaves that serve to diminish greater social integration, inclusion and mutual understanding. If TWU Law were to admit professed supporters of same-sex marriage, it would not stop other students from living by the terms of an optional Community Covenant, nor from maintaining traditional beliefs about homosexuality.”

    Nice straw man. Of course, nothing in the TWU Community Covenant bars LGBTQ persons from attending TWU, nor does it bar professed supporters of same-sex marriage. It does prohibit them (and, for that matter, heterosexuals) from engaging in practices that are inconsistent with the religious nature of TWU (notably having sex outside of what TWU considers to be the Christian construct of marriage). It’s worth noting that most Canadian universities have codes of conduct which prohibit otherwise legal behaviour on the part of their students where such behaviour is inconsistent with the community that they want to create.

    “TWU Law rests much of its case for lawful discrimination on the Supreme Court of Canada’s 2001 decision in Trinity Western University v. British Columbia College of Teachers. It is the basis for the perceived rule of law that informed most of my fellow Benchers’ votes in April. But it is distinguishable and no longer good law in light of changing realities. In short, teachers and lawyers belong to very different professions with very different mandates and opportunities for success. Unlike teachers, lawyers are statutorily required to uphold the public interest in the administration of justice by preserving and protecting the rights and freedoms of all persons. Finally and most importantly, Canada legalized same-sex marriage in 2005 after eight provinces had already done so. The times— they changed”

    Hmm, TWU supporters rest their case on a recent SCC decision directly on point. Hmm, yeah, that’s a stretch. And really, a “perceived rule of law”? That’s disingenous, is a SCC decision directly on point.

    You clearly have not read the TWU decision (or at least not carefully). First, the BC college of teachers DID have a statutory duty to protect the public interest in educational affairs. The SCC held that there was no public interest in prohibit conduct that was excplicitly permitted under the BC human rights code (particularly in the absence of any evidence that TWU graduates would discriminate against their students). The BC Law society has to climb the same hurdle.

    More to the point, it’s not clear how TWU’s internal practices affect the administration of justice. Indeed, if anything, the teachers had a better case than the law society. After all, as a result of the TWU decision a TWU graduate could become a teacher with no further training outside of the TWU environment (which training might allow the BCCT to screen out people who might discriminate against homosexuals). In contrast, a graduate of TWU law school would still have to article, satisfy the good character requirement, etc. before he or she could become a lawyer, giving the BC law society less intrusive means of protecting the public interest (indeed, in TWU the BCCT was more than willing to allow TWU graduates become teachers provided they spent one more year at Simon Fraser – in other words, the SCC rejected as unreasonable a regime that was more flexible and fair than that the one you would propose or the one adopted by the law society in Ontario).

    Nor is the fact that gay marriage was subsequently recognized all that relevant. After all, in the gay marriage reference, the SCC suggested that, given the charter protection of relgious freedoms and the relevant provisions of provincial human rights code (including the BC human rights code with permits TWU to adopt its Community Covenant), it was unlikely that religious institutions could be compelled to perform same-sex marriages. It’s not a leap to suggest that the same logic would extent to compelling recoginition of same-sex marriages by such institutions. More to the point, there’s no question that TWU’s covenant is anti-gay – the SCC said as much in the TWU decision – so the greater acceptance of gay marriage doesn’t change anything. The problem is that acceptance of gay marriage doesn’t override the religious protections afforded by paragaraph 2(a) of the Charter) or the protection afforded to religious institutions such as TWU under the BC Human rights act. As the court noted in TWU, it’s absurd to suggest that conduct that is constitutionally protected and protected under the BC human rights regime is against the public interest.

    In any event, the claim that TWU is no longer good law is inconsistent with the fact that is continues to be regularly cited by the SCC (including in the recent Dore decision, dealing with the application of the charter to provincial law socities – which, for some reasons, opponents of TWU have been citing, apparently without having read the case).

  11. I’ve said this before, and possibly here at slaw, but it bears repeating. Perhaps the old familiar saying about “the pot calling the kettle black” is worth citing.

    I don’t know if there is any other profession – I can’t think of one off hand – that is entitled to discriminate in the manner the legal profession does in the provision of its services, and I speak from personal experience. Any lawyer can turn away any prospective client and may do so for any reason (and though a reason of some sort is usually offered it doesn’t have to be the real one). There is no recourse for this discrimination to any authority including the law societies.

    Therefore it strikes me that the position taken on the TWU matter is hypocrisy.

  12. Cheryl Stephens

    I cannot comprehend how TWU could instill this value in any of its students when it institutional purpose is to deny this obligation “to uphold the public interest in the administration of justice by preserving and protecting the rights and freedoms of all persons. “

  13. “And yes, religious rights and freedoms are included in BC lawyers’ collective responsibility to uphold the public interest in the administration of justice. I just don’t think that the attendant protections extend to a right or freedom not to sit and learn about Canadian law next to a person who holds the private view that same-sex marriage is perfectly acceptable (we all know it’s legal, after all). I don’t see how that infringes on another’s religious belief.”

    So, you’re suggesting that religious freedom does not include the right of religious communities to limited membership in such communities to people who share their faith or agree to live in accordance with the tenets of that faith . Unorunately, the courts don’t appear to agree with you.

    The Supreme Court of Canada has previously said, in the context of the BC Human Rights code, that compliance with religous tenets of a faith based school is a bona fide requirement of employment for a religious school (see Caldwell et al. v. Stuart et al., [1984] 2 SCR 603 – recently cited by the BC Court of Appeal in Vancouver Rape Relief Society v. Nixon for the basis that the Vancouver Rape Relief Center could discriminate against a non-genetic female) which held that a Catholic school could dismiss an employee who had married outside of the tenets of the Catholic faith (i.e., she had married a divorced non-catholic in a civil ceremony).

    There’s an interesting parallel there, in that the employee in question certainly had a legal right to marry outside of her faith (just as a gay TWU student has a legal right to marry a way that is inconsistent with TWU’s faith), but the court held that the religious school was equally entitled to exclude her from their community. That was a pre-charter human rights case, but the relevant provisions of the BC human rights code haven’t changed (and indeed, reflects an understanding that religious freedom requires the right to exclude non-believers). Again, it’s difficult for the BC law society to say that TWU can’t do something that the BC legislature has expressly provided that it can.
    .

  14. “A law society’s refusal to approve TWU Law on the basis of its discriminatory conduct (i.e. its requirement that students ascribe to its Community Covenant) would not unduly infringe upon the freedom of religion of its students or staff.”

    What’s the basis for that? In TWU the SCC found that the refusal to accredit TWU students failed to give adequate weight to the charter values embodied in paragraphs 2(a) and (d) of the Charter. Indeed, by refusing to recongize TWU students as potential lawyers, based on the religious tenets of TWU, they are prima-facie discriminating on the basis of their religion. That’s acharter violation.

    Whether that discrimination can be justified is a different question, but as the SCC noted in TWU “the restriction on freedom of religion must be justified by evidence that the exercise of this freedom of religion will, in the circumstances of this case, have a detrimental impact on the school system.” No one has provided any evidence that allowing TWU students to become lawyers will have any detrimental impact on the legal system, and the track record of TWU education students provides no basis for believing that TWU graduates will consist of a bunch of yahoos who discriminate against gays or lesbians.

  15. Cheryl,

    “I cannot comprehend how TWU could instill this value in any of its students when it institutional purpose is to deny this obligation “to uphold the public interest in the administration of justice by preserving and protecting the rights and freedoms of all persons. “

    That’s a pretty unfair reading of TWU’s “institutional purpose”, don’t you think? It’s institutional purpose is to provide what it perceives as a “Christian” education, not to stick it to gays or lesbians. Indeed, the impugned provision of its community covenant consists of a couple of sentences in a five page document, which sentences deal only partly with gays or lesbians. To suggest that TWU’s purpose is to deny the rights and freedoms of gays or lesbians is, frankly, an unreasonable, and unfair, reading of the situation. Once can disagree with TWU, without denying that they are genuinely, and in good faith, trying to advance their conception of a Christian life.

    And, as an aside, there’s no reason for believing that Christian lawyers can’t protect the rights and freedoms of all person. After all, the essence of being a lawyer is being able to advance the rights of your clients regardless of your personal views. I’m a pro-gay agnostic, but I have no trouble recognizing that TWU has the better legal argument on this matter.

  16. On June 10 I’m getting in my car early so I can drive for an hour and a half over the mountains from Grand Forks to Castlegar where I will cast my vote against institutionalized bigotry in the Law Society where I have been a member for 42 years.
    Then I’ll drive home.

  17. The problem I have is a lack of equality and standardization when applying the Charter by law societies. For example, despite the fact that statistics have shown men and women have relatively similar rates of assault (http://www.statcan.gc.ca/pub/85f0033m/2010024/part-partie1-eng.htm) there was no sustained outcry by the legal profession when Windsor Law School supported discrimination based on gender: (http://fullcomment.nationalpost.com/2012/09/26/matt-gurney-university-run-legal-aid-forgets-justice-applies-to-men-too/)

    Further – all it would take for TWU to lose its case, and what has not happened yet (or at least not publicly reported), is a student being admitted and refusing to sign the community charter; then occurring some form of discrimination as a result of their sexual behavior, sexual orientation, etc.

    I would highly recommend reading this (http://www.twu.ca/Academics/school-of-law/faq.html) as it would certainly be evidence in future court cases.

  18. Considering the millions of black people enslaved, and the huge numbers assaulted, tortured and/or murdered, including post-Civil War and post-Brown as part of the civil rights struggle, I find the glib comparison to a private religious school with a discriminatory behavioural policy (motivated by their religious beliefs) insulting. Maybe we need a new term vis-a-vis “Godwin’s law” for these different sorts of comparisons…

    Of course there have been terrible crimes against members or suspected members of the LGBTQ community, and it might be fair to draw an analogy between some of those specific crimes, but not the American black civil rights struggle, not school segregation and bombing of churches, not the lynchings where in some places in the south any old tree may have been the site of a murder.

    Not to mention, as noted, the reasoning in this piece is perhaps best exemplified by “It is a rare Canadian neighbourhood where an LGBTQ couple can walk hand-in-hand without legitimately fearing an assault. ” Really? Name neighbourhoods in Vancouver, Toronto, Montreal, etc. where people would have legitimate fear of an increased risk of assault by reason of being LGBTQ walking hand-in-hand (as opposed to anyone having legitimate fear because the neighbourhood itself is a high-crime area).

  19. Claudia Johnson

    Thanks for posting your article. If you want to come and see how racism and bigotry persist and continue to cause pain and poverty in other parts of our nation, come visit me here in the great Pacific Northwest. Depending on what part of the US you visit, you will see them manifest themselves in different ways and against recent groups. In some places, is the newest Americans that are targeted, yet the other types of discrimination are still alive and well across the social/economic/educational/political spectrum. The fight against discrimination continues. We can’t give up. We must never give up.

  20. David,

    I agree that the struggles faced by LGBTQ folk and black people are different, and that certain aspects of the historical and present-day discrimination faced by these two groups cannot easily be likened to each other.

    At the same time, your comment reveals what I believe is the rationale underlying the position of many pro-TWU advocates. That rationale is that because LGBTQ folk have not faced as much discrimination, they do not deserve as much protection.

    I think this kind of thinking is problematic. I don’t believe that quantifying the amount of historical discrimination a particular group has faced should be taken into account when deciding whether to offer protection to a historically disadvantaged group.

    I realize that you weren’t necessarily arguing for a “quantification of disadvantage,” but your comment raised a point I felt necessary to discuss.

  21. An important paralell between Canada 2014 and Deep South US 1954 (and US 1854 for that matter)has not been mentioned: religious beliefs and religious freedom were used as arguments for segregation (and for slavery). People with abhorrent religious beliefs are entitled to have those beliefs. They are entitled to associate with others who have those beliefs and form communities with others who hold those beliefs. They are entitled to create institutions that have a specific purpose in mind (worship, education, recruitment, whatever…). They do not have the right to have their institutions “blessed,” sanctioned or legitimized by secular authorities/regulators, especially when legitimization of those institutions would harm other groups. I see no reason why a public regulator should be forced to legitimize the abhorrent beliefs of certain groups. Members of those groups who wish to become lawyers are free to attend public universities to do so. Their freedom of religion is not the least bit harmed by doing so.

  22. Bruce: “That rationale is that because LGBTQ folk have not faced as much discrimination, they do not deserve as much protection.”

    I don’t think that the rationale of pro-TWU advocates at all. The rationale of pro-TWU advocates, backed up by Supreme Court jurisprudence directly on point, is that it’s not permissible for a professional licensing body to refuse to recognize TWU students on the basis of TWU’s religiously-inspired (and by all account bona fide) community charter. Apart from being unreasonable because it isn’t linked to actual discrimination by TWU grads (which discrimination might justify the need for protection) it also fails to give weight to the charter values of religious freedom and freedom of association reflected in sections 2 and 15(1) of the Charter, to say nothing of the provincial protections afforded to TWU’s conduct under section 41 of the BC human rights code (and similar provisions in other provinces). The rationale of the pro-TWU forces is that it isn’t open to the law society to ignore laws they don’t like. Lawyers, of all people, should know that.

    The take away isn’t that gays or lesbians don’t deserve as much protection as others, it’s that their rights can’t be used as a sword to infringe on the co-equal rights of others. It’s not about gay rights versus religious freedoms, it’s about providing equal protection for both.

    David,

    You’re right that the comparison between TWU and the Jim Crow south is wholly inappropriate (and, frankly, somewhat embarassing – clearly Godwin’s law needs to be updated to include references to Jim Crow and Stalin). More to the point, to the extent that there is any validity to the comparison (and there isn’t much), it actually undermines Jamie’s case. At the core of Brown v. Board of Education, was that state authorities refused to allow an identifiable group to fully participate in societies. Brown stands for the proposition that it is fundamentally wrong for the state to exclude any class of citizens from full participation in public life on the basis of their identity.

    In the context of the TWU case, the state authority is the BC (or Ontario) law society, and it is people like Jamie et al. who are urging it to exclude a class of citizens (TWU graduates) from full participation in public life (assuming, of course, they can satisfy the objective standards to be lawyers). Jamie probably thinks of himself as playing the role of Brown, in reality he’s the Board of Education.

  23. CD “They do not have the right to have their institutions “blessed,” sanctioned or legitimized by secular authorities/regulators, especially when legitimization of those institutions would harm other groups. I see no reason why a public regulator should be forced to legitimize the abhorrent beliefs of certain groups”

    First, public regulators can’t discriminate against groups with “abhorrent” religious beliefs – section 15(1) of the Charters.

    Second, who is asking the law societies to bless, sanction or legitimize” TWU’s beliefs? They’re being asked to allow students who meet objective standards and are otherwise qualifed to be called to the bar. The law socities have neither competence nor jurisdiction to “bless, sanction, or legitimize” TWU’s beliefs. Indeed, the law societies have no mandate to comment on whether or not TWUs beliefs are abhorent or not.

    More to the point, this is a very dangerous and totalitarian way of thinking (which, too ofen, slips into current rights discourse) that tolerance implies a blessing, sanctioning or legitimize. Think about it, if that were correct, wouldn’t the grant of a building permit to a church constitute entail the blessing, sanctioning or legitimization of that church’s beliefs? Does allowing a religous groups to participate in public consultations entail a legitmization of their beliefs. Does granting a permit to organize a demonstration entail a “sanctioning” of their beliefs. If you believe that, than you’ve provided a basis for systematically suppressing the public participation of pretty much any group you find “abhorent”. I realize that this sort of thinking is, unfortunately, popular in some of the hallowed halls of academia, but in the free world it’s intolerable.

    Moreover, and ironically, you’re mirroring the arguments made by anti-gay marriage advocates, for example the Knights of Columbus, that being required to provide services at gay marriages violated their religious rights because it implies that they’re blessing, sanctioning or legitimizing those marriages. The courts in both Canada and the US have rejected that line of thinking, holding that providing a ball room, or wedding photography or wedding cakes doesn’t imply an acceptance of gay marriage, it implies that you’re providing a ball room, wedding photography or a cake. it doesn’t. No one has a right to be blessed, sanctioned or legitimized by the law socities, they have a right to become lawyers if they can meet objectively reasonable standards.

    Furthermore, think about how irrational that argument is. You concede that it’s acceptable for lawyers to share TWU’s beliefs, but on your logic, wouldn’t calling those lawyers to the bar constitute a blessing, sanctioni or legitimization of those beliefs? Indeed, since being callled to the bar implies that you’ve been found to be off good character, arguably calling an individual lawyer does represent a blessing, sanctioning or legimization of that lawyer (and indirectly his or her beliefs), on your logic.

    Finally, consider your final sentence with one minor modication:

    Members of those groups who wish to become lawyers are free to attend public universities to do so. Their freedom is not the least bit harmed by doing so.”

    Would you find that argument a compelling defense of discrimination by TWU if the group in questions were gays and lesbians? So why should TWU and its students find it a compelling argument when the roles are reversed.
    .

  24. Do law schools or law societies screen out applicants who hold sexist, racist or homophobic beliefs?

  25. “Do law schools or law societies screen out applicants who hold sexist, racist or homophobic beliefs?”

    Beliefs? No, and they’d probably run afoul of provincial human rights law and the charter if they did.

  26. Joy,

    Not that measuring “victimhood” is all that relevant to rights discourse, but according to that article:

    “According to Statistics Canada, police agencies across the country reported 1,036 hate crimes in 2008, up 35 per cent from a year earlier.

    Crimes related to sexual orientation actually accounted for just 16 per cent of all hate incidents”.

    So we’re talking about 160-odd hate crimes based on sexual orientation in a country of 30 million+ people. One hate crime is too many, but that is hardly an onslaught of hate.

  27. Mr. Smith thanks for your response to my question. I was merely paraphrasing the SCC at para. 36, i.e., “[BCCT} does not require public universities with teacher education programs to screen out applicants who hold sexist, racist or homophobic beliefs. For better or for worse, tolerance of divergent beliefs is a hallmark of a democratic society.”

  28. For the purpose of supporting Jamie Maclaren’s statement about fear of assault by sexual minorities, the salient points made in the article include: (1) a heightened level of violence involved in hate crimes motivated by sexual orientation, and (2) the inherent problem with data collection where an estimated 75 percent of incidents go unreported. These are two good reasons to talk about the problem of fear of assault, rather than focusing on its incidence. There are historic reasons for the continued underreporting and consequent invisibility of this and other hate crimes.

  29. “For the purpose of supporting Jamie Maclaren’s statement about fear of assault by sexual minorities, the salient points made in the article include: (1) a heightened level of violence involved in hate crimes motivated by sexual orientation, and (2) the inherent problem with data collection where an estimated 75 percent of incidents go unreported.”

    Really, does the threat become that much more real if, instead of 160 instances year per 30 million people, it’s 640 instances a year, half of which are not violent crimes according to Statscan? We’re talking a incidence rate of 2 per 100,000 people (assuming your estimate of 75% unreported is correct – remember the Guffaws at Peter McKay’s report of rising unreported crime rates).

    By way of comparison, the overall (reported) violent crime rate is 1190 violent crimes per hundred thousand people. Even accounting for the fact that gay and lesbians are a disproportionate target for hate crimes, if you assume they make up 10% of the population (probably a fair estimate) and that all victims of sexual orientation related hate crimes are gays and lesbians (for the same of simplicity), the incidence of hate crimes in the gay and lesbian community is still only 20 hate crimes per 100,000 gays and lesbians, and the incident of violent hate crimes is only 10 per 100,000 gays and lesbians. Remember, these are all based on the statscan statistics you’re presenting and your assumptions about unreported crimes. That’s a rounding error next to the background level of crime. Forget worrying that someone’s going to jack you for being gay, worry that someone’s going to jack you for your wallet.

    Look, I’m not trying to downplay the significance of anti-gay violence, any is too many. But equally, it shouldn’t be overstated. If people are afraid of anti-gay violence, it’s because they’re reading headlines to the effect that anti-gay hate crimes have doubled (which may, of course, reflect increased reporting rather than increasing crime – is it likely that as public attitudes toward gays and lesbians become more tolerant, reporting would increase?), without reading that the actual numbers are tiny.

  30. Jonathan Westphal

    Nate, regarding the “chills” that run down your spine when you read “True freedom is not the freedom to do as one pleases, but rather empowerment to do what is best” perhaps some explanation is in order, since there seems to be a good deal of ignorance and misinformation out there regarding what Christians (or Evangelican Christians in any event) actually believe. What TWU is getting at is that living a life devoted solely to self fulfillment does not offer true freedom, as we continue to be imprisoned by our sinful natures. Only by giving oneself fully to God and being born again in Christ can one be freed from sin. That following biblical standards of behaviour can feel empowering rather than restrictive may be difficult for non-Christians to understand, but it is nevertheless so. You don’t have to agree with their views, but from my reading of the covenant, TWU appears to be sincere in its convictions and is not setting out to oppress gay people, but ultimately the bible says what it says – that any sex outside heterosexual marriage is sinful behaviour. But I think that secular people need to understand that it is perfectly possible to love a person while at the same time recognizing that their behaviour is sinful. Indeed, part of the process of being “born again” is the recognition that one is oneself a sinner in need of redemption. If TWU does not succeed in getting these law society decisions overturned, then I am afraid that the guarantees of freedom of religion in the charter would be rendered essentially meaningless.

  31. Mr. Smith ,

    My preference is that no one ‘educated’ at private insitution be allowed to practise law or teach. I really think that’s an easy solution to all this foolishness. Want to be a lawyer? You go to a public institution. No private instiutions of any kind will be accredited. It’s not hard. (This is my answer to you final query – which confusingly seems to be “What if LGBT individuals formed their own university? Would I argue they should go to a public university in order to be eligible to practise? Yes.)

  32. CD,

    So graduates of Harvard and Yale law school can’t practice in Canada? Barrack Obama isnt fit to be a Canadian lawyer? Interesting position. Its hard to see a rational policy basis for excluding would-be lawyers based on the legal form of their law schools.

    Never mind that the status of Canadian “public” universities as “public” institutions is something of an open questions (the SCC has previously held, although I think it is backing off on this position, that they are private institutions for the purpose of the charter – see McKinney v. University of Guelph). They’re publicly funded and regulated, but they are not state instititutions. In any event, Trinity Western University is no less “public” than, say, the University of British Columbia, since they are both formed under acts of the BC legislature.

    ” (This is my answer to you final query – which confusingly seems to be “What if LGBT individuals formed their own university?”

    Actually the final question was doesthe fact that LGBT individuals can attend public universities, rather than TWU, mitigate TWU’s discriminatory practices? (Hint, it doesn’t, the fact that practices are expressly permitted under the BC human rights code does). If not, whydoes the fact that conservative christians can attend public universities mitigate, in your mind, the proposed discriminatory practices by the law societies.

  33. Really? There is an omnipotent spirit or force that really has an issue with two people with the same biology loving each other? An omnipotent spirit that prefers for example a violentl heterosexual over loving homosexual? Based on a book that’s been written, re-written and edited by various human beings (mostly male) over many years in order that it conform to what that particular human being or group of human beings happened to think at that time or that was expedient for social control at that time? Which then is still somehow the unassailable word of that omnipotent spirit, an omnipotent spirit who has apparently changed his/her/its mind quite a few times and quite substantially over the years? Give me a break. Anyone with two brain cells that occasionally knock together knows that’s goofy.

    Do you think this omnipotent spirit puts a person on the earth with these beliefs? that any two year old child looks at two same-sex individuals and thinks “that’s wrong”. Of course not, other humans teach people to dislike, to like, to hate, to love. If it was an omnipotent spirit doing all the teaching wouldn’t we all believe the same thing?

    This is just such a goofy debate, because we are arguing about, as we always are when it involves organized religion, something founded for socio-political reasons, not based on some sort of spiritual truth. Otherwise how could you possibly explain the multitude of ‘religions’. They are all ideas born of ignorance and the need to calm our fears born from that ignorance, to explain what was then unexplainable, and perpetuated from generation to generation because of continued ignorance, only slowly being eroded as our understanding of our physical world around us expands and we very slowly lessen our need as a species to have these ‘religions’ explain the world for us, to calm our fears.

    I feel there is an omnipotent force of some kind but I don’t think it cares whether we all get together on Sunday or Saturday, or eat meat with milk, or wear fancy robes or headgear. And I think it would far prefer the loving homosexual to the violent heterosexual.

    But why assail TWU? Let them have their Covenant, gently suggest to them from time to time that perhaps this is not really a positive thing, and quite likely not something the omnipotent spirit really gives a crap about. And speak out and act when you actually see a homosexual person being discriminated against. If you really want to help a homosexual person now, give him/her/them a hug when they need it.

    I think the Law Society should resolve to see how it goes. Don’t commit one way or another on approval at the moment. Let see what the graduates of TWU look like when they graduate. I personally haven’t heard any widespread reports of TWU grads running amok causing problems for anyone including homosexuals. I personally don’t think the ghettoization of ‘Christians’ in a particular school is particularly healthy for society, because I think it retards the hoped for evolution of the species to a higher plane, self-actualization if you will, but my expectation is that ghettoized people will eventually be left behind, just as other species that did not evolve got left behind.

    Just sayin…

  34. Jonathan Westphal

    Rob M

    You’ve made your contempt for religion abundantly clear, however you commit the logical fallacy of begging the question – that is, your initial assumption (there is no omnipotent spirit or force) is treated as already proven without any logic to show why the statement is true in the first place, apart, of course from the fact that it seems obvious to you. Let me pose a thought experiment for you: your worldview as a materialist and my worldview as a Christian are both equally based on unprovable faith assumptions. You assume that somehow, at the time of the Big Bang the universe came into being, from nothing, for no apparent reason. I assume that, somehow, at the time of the Big Bang the universe was created, from nothing, by a being who had very definate reasons for doing so. Why is your belief so self evidently superior to mine?

    As for your suggestion to just let TWU students undergo the time and expense of getting their law degree, then afterwards, if someone like you determines that they meet the approved standard of politically correct thought, the Law Society will then determine whether to allow them to practice their chosen profession – some obvious questions of basic fairness arise.

  35. Why isn’t Maclaren crusading to shutdown gay high schools and Afrocentric high schools, both of which exist in the U.S.? Does he not know that Canada was founded on separate-but-equal schools systems for Catholics?

  36. My view on this subject is that the Trinity Western University v. British Columbia College of Teachers is binding authority on this issue. Full stop. Everything else is irrelevant.

    I’ve heard some lawyers say it is either distinguishable or stale but frankly I don’t find those arguments very compelling. Yes there are some differences in the social roles of teachers versus lawyers but the SCC’s reasoning that being educated at TWU does not mean that you will bring prejudices to teaching can just as easily be applied to the practice of law.

    As for the decision being stale, well it came out only 3 years before Reference Re: Same Sex Marriage and was an 8-1 decision. There have also been other decisions since then that reaffirm that the court takes religious freedom very seriously–Multani and Syndicat Northcrest come to mind.

    Look I don’t like TWU as much as the next progressive and don’t see it as providing any social value to Canada. Moreover I think this country needs more lawyers like it needs a hole in the head.

    But the court has spoken and it has spoken relatively recently, and decisively on nearly identical facts. As lawyers we should respect that even if we feel that the “covenant” is silly and backwards–as I do.

  37. TWU not approved by LSBC membership: being a “Toronto member,” I attended the Special General Meeting of the membership of the LSBC, on June 10th at the Vancouver Convention Centre. And, the membership at 15 other B.C. locations took part by audio-conference.

    The vote was overwhelmingly in favour of this proposition: “The Benchers are directed to declare, pursuant to Law Society Rule 2-27(4.1), that Trinity Western is not an approved faculty of law.”
    A majority of the Benchers of the LSBC had voted on April 11, 20 to approve the application of TWU despite the covenant that discriminates on the basis of sexual orientation.
    Students and faculty are required to enter into the covenant, which includes a provision prohibiting “sexual intimacy that violates the sacredness of marriage between a man and a women.”

    The debate was excellent, there being many well structured arguments from both sides of the issue. Two of them were: (1) LGBT students, “should not have to ride in the back of the bus”; and, (2) freedom of religion is not superior to other rights and freedoms.

    There was distributed a draft of a very good in-depth paper entitled, “TWU Law: A Repy to Proponents of Approval,” by Elaine Craig, Assistant Professor, Schulich School of Law at Dalhousie University.

    The meeting was called pursuant to requests from in excess of 1,100 LSBC members. Michael T. Mulligan, of the Victoria firm of, Mulligan Tam Pearson, initiated the request for the special general meeting.

    Included in the LSBC’s notice of the meeting, was his written statement, one paragraph of which states: “The discriminatory principles reflected in the Trinity Western University covenant would appear to be inconsistent with one of the core principles reflected in the Barristers’ and Solicitors’ oath: that barristers and solicitors uphold the rights and freedoms of all persons according to the laws of Canada and British Columbia.” He is much to be commended, which I did with a handshake at the meeting.–Ken Chasse, Toronto.

  38. I’m confused about the vote especially when I read the following from the SCC decision: “based its concerns on specific evidence. It could have asked for reports on student teachers, or opinions of school principals and superintendents [in this case law societies, judges etc]. It could have examined discipline files involving TWU graduates and other teachers affiliated with a Christian school of that nature. Any concerns should go to risk, not general perceptions.” (para. 38)

    But of course if the above was done and evidence was provided to prove that belief crossed the line into conduct: “the proper place to draw the line in cases like the one at bar is generally between belief and conduct. The freedom to hold beliefs is broader than the freedom to act on them.” (para. 36) Is the requirement to sign the covenant considered “conduct”?

  39. Ken,

    I’m distressed how the opponents of TWU are willing to play so fast and loose with the law and claims of legal ethic.

    Consider Michael Mulligan’s “commendable” statement:

    “The discriminatory principles reflected in the Trinity Western University covenant would appear to be inconsistent with one of the core principles reflected in the Barristers’ and Solicitors’ oath: that barristers and solicitors uphold the rights and freedoms of all persons according to the laws of Canada and British Columbia.”

    First, “discriminable principles” by definition do not violate rights and freedoms. Discriminatory PRACTICES might, but principles don’t. To suggest that the “discriminatry principles” reflected in the TWU covenant are incompatible with the principles reflected in the Barristers’ and Solicitors’ oath is to suggest the conservative Christians (or others who share their views on sexuality such as devout Muslims) cannot serve as lawyers in the province of British Columbia. That’s absurd (and, since no doubt conservative Christians and devout Muslims do work as lawyers in the province of British Columbia, somewhat offensive).

    Second, pray tell, what “rights and freedoms” under the laws of Canada and British Columbia, do TWU’s discriminatory practices (and I’m happy to concede they are discriminatory) violate? They’re legal – indeed expressly permitted – under the BC human rights code. TWU is not subject to the Charter of Rights and Freedoms. If TWU did violate Canadian or BC laws, more appropriate institutions than the BC law society would have shut them down. They haven’t.

    Indeed, one would think that, if any thing, the obligation of lawyers to ” uphold the rights and freedoms of all persons according to the laws of Canada and British Columbia” would apply to the right of TWU (and its graduates) not to be denied accreditation simply because of its (otherwise legal) conduct. Here, in fact, the Supreme Court of Canada has previously determined that TWU and its graduates have rights in play which cannot be casually disregarded by a provincial licensing bodies (much less by votes by the members of those bodies).

    It’s hard to take seriously the pompous claims of people like Mr. Mulligan, when their own positions show a casual contempt for the rights and freedoms of people they disagree with. Funny, my reading of the BC oath doesn’t include a exception for the rights and freedoms of people one finds offensive. I wonder, if they ultimately succeed in their campaign to blackball TWU and are overturned by the courts (as happened to the BC college of teachers dealing with the self-same issue, and will almost certainly happen in Ontario), will Mr. Mulligan and his ilk report themselves for failing to live up to THEIR obligations as lawyers in the province of British Columbia to protect the rights and freedoms of TWU graduates.

  40. Bob, if TWU were to prohibit inter-racial marriage on religious grounds, do you think it would be acceptable for the law society to accredit it?

  41. Verna, that investigation process was duly completed by the BC benchers and no problematic conduct found. For example, the benchers inquired with the UVic and UBC law schools as to whether any TWU undergrads had subsequent disciplinary issues at law school. None were reported. There are no relevant LSBC disciplinary panel decisions. As a TWU-grad lawyer, I can personally say that I have served gay, lesbian and transgendered clients competently and professionally, and I fully expect the same is true of the other 100+ TWU-grad lawyers.

  42. Thanks, Luke. I suppose looking at this practically, once the lawsuits and court cases pertaining to this situation begin to arise they’ll be many lawyers benefitting, which ever side you’re on — acting for the various parties and interveners. And, lets not forget money and reputations to be made etc. In the end, for some legal professionals — it’s opportunity knocking. And, of course, let’s not forget — EVERY side will be defending FREEDOM.

  43. Verna,

    There’ll be some lawyers benefitting (through publicity or fees). But most of us, when the law society loses, will end up footing the bill. I don’t suppose the benchers (or lawyers) that feel strongly about the legality of their actions will indemnify the rest of us.

  44. Jimbo said “if TWU were to prohibit inter-racial marriage on religious grounds, do you think it would be acceptable for the law society to accredit it?”

    That’s the wrong question. The better question is, if such discrimination were otherwise legal, what legal basis would the law society have to refuse to accredit TWU. It doesn’t matter what kind of discrimination you want to throw out, whether it’s anti-gay discrimination, racial discrimination, gender discrimination, flying spaghetting monsters discrimination, that’s the question YOU have to answer.

    The law society isn’t bound by what’s “acceptable” to its members, it’s bound by the law. So long as the TWU’s discriminatory behaviour is protected under the BC human rights code (and it is), it simply isn’t open to the BC Law Society to conclude that accrediting TWU students is against the public interest (see TWU v BCCT). Lawyers, of all people, should appreciate that.

    If you don’t like TWU’s conduct, go talk to the BC government and have them amend the BC human right code to prohibit it. Short of that, you’ve got to deal with the law as it is.

    .

  45. Bob,

    A decision by the LSBC to not accredit TWU would be consistent with its statutory mandate “to uphold and protect the public interest.” Although TWU is exempt under the HR Code, it does not follow that the LSBC has to approve any institution that is operating within the rules of the HR Code. The LSBC has its own mandate that is separate from the BC HRC.

    The TWU decision will probably reviewed on a reasonableness standard [1]. In weighing freedom of religion and equality values, the LSBC must do so with a view to its “public interest” mandate. The “public interest” mandate embodied in the Legal Profession Act does is not necessarily aligned with the rights balancing reflected in the BC HR Code . Because our values and laws have changed, a decision by the LSBC to not accredit TWU would be reasonable, even if nothing about TWU contravenes the BC HR Code.

    It might seem that this “public interest” argument could allow unelected lawyers to impose their fairly modern and fluid views on a community that has HR Protection. This isn’t really the case, because their decision has to be within legal bounds. TWU is still protected by the HR Code, but the HR Code does not give them a right to a law school.

    If the public is unhappy with the LSBC’s decision, they can encourage lawmakers to amend the Legal Profession Act to strike out the public interest mandate. Alternatively, they could amend the mandate to more specifically define “public interest.”

    [1] http://nsbs.org/sites/default/files/ftp/TWU_Submissions/2014-02-10_Wildeman_TWU.pdf

  46. Jimbo: “This isn’t really the case, because their decision has to be within legal bounds.”

    Well, that’s the issue, isnt’ it. The problem that opponents of TWU are having, is that all their arguments as to why it is legal for the BC Law Society (BCLS) to blackball TWU have been fully addressed, and rejected, by the Supreme Court of Canada in TWU v. BCCT (TWU 2001). It’s disturbing that lawyers, much less the BCLS, would consider a decision that flies in the face of a SCC decision that is directly on point.

    Now, I’ve heard your argument that, unlike in TWU 2001, a BCLS decision would be reviewed by the Court on a standard of reasonableness (possible, although I note that the Dore decision involved a disciplinary hearing, which is a very different context from the current fact pattern). Ok, but in TWU 2001 the SCC squarely addressed the reasonableness of the claim that accrediting TWU was, per se, against the public interest without regard to the conduct of its students (I note that there is no evidence that the 100-odd TWU graduates who currently practice law in the province of BC engage in any conduct that is against the public interest).

    It observed (at para 35) that, given that TWU’s conduct was protected under the BC human rights code:

    “It cannot be reasonably concluded that private institutions are protected but that their graduates are de facto considered unworthy of fully participating in public activities. In Ontario Human Rights Commission v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536, at p. 554, McIntyre J. observed that a “natural corollary to the recognition of a right must be the social acceptance of a general duty to respect and to act within reason to protect it”. In this particular case, it can reasonably be inferred that the B.C. legislature did not consider that training with a Christian philosophy was in itself against the public interest since it passed five bills in favour of TWU between 1969 and 1985. ”

    Note, even though the standard of review was correctness, the Court held that the arguments made by the BCCT in TWU 2001 was (and by extension a decision by the BCLS to refuse to accredit TWU or its students would be) unreasonable. So the argument that you’re making has already been rejected by the SCC.

    Moreover, addressing that question skips the principal question, what is the extent of the BCLS’s public interest mandate. Should it be narrowly defined, and limited to regulating the conduct (or likely conduct) of lawyers, articling students, etc., or is a broad enough to allow the law society to address broader issues (such as the conduct of TWU). (As an aside, the question of the extent of the BCLS’s mandate is a question of law, therefore subject to a standard of correctness).

    In TWU 2001, the SCC gave clear guidance on this point:

    “the proper place to draw the line in cases like the one at bar is generally between belief and conduct. The freedom to hold beliefs is broader than the freedom to act on them. Absent concrete evidence that training teachers at TWU fosters discrimination in the public schools of B.C., the freedom of individuals to adhere to certain religious beliefs while at TWU should be respected.”

    In short, the public interest mandate under the Teaching Profession Act was limited to regulating the conduct (or likely conduct) of teachers, it did not extent to remedying the perceived wrongs inflicted by TWU’s code of conduct.

    Given that the BC Legal Profession Act serves the same legislative purpose of the Teaching Profession Act (namely the establishment of a regulatory regime to regulate a particular profession), it’s inconveivable that a court would interpret the “publc interest” mandate of the former more broadly than the latter. Indeed, the clear language of section 3 of the BC Legal Profession Act is focussed not on a broad-based mandate to uphold the “public interest”, but on a much more narrow focus on upholding the “public interest in the adminstration of justice”. It’s clear that regulating the conduct of lawyers is relevant to the administration of justice, it’s far from clear how regulating the non-academic conduct of their law school is of any relevance. Moreover, the claim that the BCLS’s mandate is limited to regulating the conduct of lawyers is clear when you look at paragraphs (b) through (e) of section 3, which are focussed on the competence, conduct, training and support of lawyers.

    At best opponents of TWU have glommed on to the requirement in paragraph 3(a) that the BCLS uphold the “public interest in the administration of justice by (a) preserving and protecting the rights and freedoms of all persons”. The problem is that the TWU code of conduct doesn’t violate the rights of any person. There are no charter claims against it (see TWU 2001 at para 25), nor are there any human rights claims against it (by virtue of section 41 of the BC human rights code). If TWU’s conduct violated anyone’s rights and freedoms, the BCLS wouldn’t be in a position to blackball TWU, the court’s or the BC human rights commission would already have shut it down. So, paragraph (a) doesn’t provide TWU’s opponents with any traction, since blackballing TWU doesn’ protect or preserve the rights and freedoms of anyone.

    On the other hand, blackballing TWU may well violate the rights and freedoms of its students. As the SCC noted in TWU 2001:

    “Students attending TWU are free to adopt personal rules of conduct based on their religious beliefs provided they do not interfere with the rights of others. Their freedom of religion is not accommodated [by the BCCT ]if the consequence of its exercise is the denial of the right of full participation in society. Clearly, the restriction on freedom of religion must be justified by evidence that the exercise of this freedom of religion will, in the circumstances of this case, have a detrimental impact on the school system.”

    In that case, the BCCT could provide no evidence that accrediting TWU graduates as teachers would have a detrimental impact on the school system. Similarly, no one had introduced evidence that accrediting TWU graduates as lawyers would have an adverse impact on the administration of justice. Indeed, the fact that there are dozens of TWU graduates working as lawyers in BC (having graduated from other law schools after doing their undergrad at TWU) fatally undermines the claim that such graduates are unsuitable to be lawyers.

    Finally, I take issue with your claim that our values, and therefore, the law, have changed (presumably since TWU 2001). TWU 2001 is not a Plessy v. Ferguson to Jamie’s Brown v. Board of Education. The law hasn’t changed since 2001. Keep in mind that the Court that decided TWU 2001 was largely the same Court that held, in Vriend, that Section 15 of the Charter included sexual orientation as an analogous grounds – arguably THE seminal Charter decision on gay rights in Canada. Indeed, Iacobbuci co-wrote both Vriend and TWU 2001. So, it cannot be credibly claimed that the Court in TWU 2001 was not alert to the importance of protecting the Charter claims of gays and lesbians – it was the Court that first recognized them. The majority’s decision gave considerable weight to those claims, but emphasized that there is no hierarchy of rights under the Charter, such that the those claims must be balanced against the co-equal claims to religious freedom (and freedom from discrimination on the basis of religion). In short, the TWU 2001 decision represents a uniquely Canadian balancing of rights claims – given that it continues to be cited by the SCC for guidance on how to weight charter values in administrative decisions (see Dore), there’s no reasonable basis for expecting the SCC to reverse itself.

    Bob

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