As a Bencher of the Law Society of BC, I voted against the accreditation of TWU Law on two occasions—first in the original Benchers’ debate on the subject in April, and then again in September following a Special General Meeting of BC’s lawyers. Both votes were defeated.
Between the two votes, I penned a Slaw column entitled TWU Law and the New Segregation. It was lauded in some corners for capturing the evolved public interest in equal treatment of LGBTQ people, and panned in others for being long on emotion and short on analytical rigor. The latter view noted that my arguments gave little regard to the Supreme Court of Canada’s 2001 decision in Trinity Western University v. British Columbia College of Teachers, and the rule of law in general.
The same view underpinned much of the Benchers’ reluctant justification for granting TWU’s accreditation in April. A large majority of the Benchers then held their noses—while variously describing TWU’s impugned Community Covenant as “abhorrent”, “repugnant” or “objectionable”—and voted according to the rule of law as they perceived it. Here, I set out a final time to respectfully argue that their reasoning was sound, but their conclusion was wrong.
My argument is nothing new, but is based on the reality that so much around us is new. Simply put, it posits that the rule of law is dynamic and must respond to changing circumstances within society. This is part and parcel to the established “living tree doctrine” of constitutional interpretation and the principle of constitutional supremacy. It takes into consideration the principle of stare decisis and the accompanying notion that stable and predictable application of law promotes the rule of law. Objectives of consistency, certainty and predictability are all foundational to the rule of law, but its relevance is sustained by adapting to transformative changes in the everyday experience of citizens. Public confidence depends on it.
In the recent SCC decision in Canada v Bedford, Chief Justice McLachlin outlined two basic conditions that each permit a lower court to depart from precedent set by a higher court: (1) a new legal issue is raised by the parties or by significant developments in the law; and (2) new circumstances or evidence fundamentally shift the parameters of the debate. The threshold is set high to respect stare decisis, but not so high as to prevent the rule of law from operating in symbiosis with other values like constitutionalism, democracy, fairness and human dignity.
Since 2001, there has been a sea change of circumstances in the debate over TWU’s Community Covenant. The change is known by simply looking around. Public acceptance of LGBTQ relationships and open identities has taken a quantum leap over the past 13 years, and is now commonplace. A lesbian woman was recently elected Premier of Ontario. Pride parades attract thousands of supporters of all ages and backgrounds. City halls fly rainbow flags without a whiff of dissent. In the uber-macho realm of professional sports, athletes are increasingly comfortable with coming out during their playing careers. Yes, entrenched pockets of bigotry and hate persist to threaten and marginalize the advancement of LGBTQ people, but basic acceptance is the new norm.
The clincher is the fact that same-sex marriage was legalized in BC and Ontario in 2003, and Canada-wide by 2005. Within this particular debate, there can be no more significant development in the law. It is so significant as to be politically untouchable; even a majority Conservative government will not re-open the issue for fear of being punished at the polls. The new reality is that an increasing number of Canadians believe that public institutions have no business placing dogmatic restrictions (or lending approval to such restrictions) on an LGBTQ person’s ability to express their fundamental identity or formalize their loving relationship in equal ways to others. To the extent that this is a generational phenomenon fueled by familiarity and integration, popular support for equal treatment of LGBTQ people and their relationships is unlikely to regress.
And given the new reality, the legal issue for consideration now and in the future by Canadian law societies and courts is not whether TWU Law graduates would become good lawyers and judges who do not discriminate against LGBTQ people—few opponents of accreditation doubt that the vast majority of them would become good lawyers and judges despite some discriminatory beliefs. The new legal issue for consideration is whether the discriminatory conduct of TWU Law is an acceptable infringement of the equality rights of LGBTQ people, and consistent with an evolved public interest in the administration of justice. In my view, it is neither.
This is an issue of our time. And this month, BC lawyers vote in a referendum on TWU Law’s accreditation. They have an opportunity to keep legal education and the administration of justice on the path of inclusion and equality—a path that reflects societal aspirations in 2014 and enhances the legitimacy and acceptability of the rule of law. They will show us the way.