TWU Law and the New Reality
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.
Paragraph 31 of Bedford states “the trial judge cannot change the law, but is limited to making findings of fact and credibility to create the necessary evidentiary record which the Supreme Court of Canada can then consider. Reasons that justify a court departing from its own prior decisions cannot justify a lower court revisiting binding authority. This applies to determining what constitutes a reasonable limit on a right…” with this in mind, do the law societies have the authority to deny accreditation in light of the decision in Trinity Western University v. British Columbia College of Teachers?
Hi Verna,
You cite a retelling of the Court of Appeal’s reasons in Bedford.
The relevant portion of the SCC’s reasons are found at paragraphs 43 and 44:
[43] The intervener, the David Asper Centre for Constitutional Rights, argues that the common law principle of stare decisis is subordinate to the Constitution and cannot require a court to uphold a law which is unconstitutional. It submits that lower courts should not be limited to acting as “mere scribe[s]”, creating a record and findings without conducting a legal analysis (I.F., at para. 25).
[44] I agree. As the David Asper Centre also noted, however, a lower court is not entitled to ignore binding precedent, and the threshold for revisiting a matter is not an easy one to reach. In my view, as discussed above, this threshold is met when a new legal issue is raised, or if there is a significant change in the circumstances or evidence. This balances the need for finality and stability with the recognition that when an appropriate case arises for revisiting precedent, a lower court must be able to perform its full role.
There’s a subtlety about discrimination that warrants noting. What human rights and other legislation addresses is not discrimination, a faculty that humans and other creatures are using all the time, but discrimination that offends certain principles we have chosen to define as human rights and / or legal principles.
The legal establishment continues to ignore, encourage and apparently benefit from discrimination that denies most people any practical access to what is termed the “justice system”. That continues because there’s no intelligent debate about some fundamental principles. The excuse is “justice is expensive”. Thus pro bono services are suggested as a partial – but obviously grossly inadequate – solution.
The provincial law societies have monopolies that together constitute a cartel. A very recent addition to the slick propaganda that is intended to convince the public that a monopoly is essential to the public interest is this “pamphlet” – http://www.stikeman.com/2011/en/pdf/Why-We-Need-Independent-Lawyers.pdf – that is shortly going to be put before the BC Supreme Court in an action to which the Law Society of BC is the Respondent. The Ministry of Justice has chosen not to participate in this action.
Thanks for the clarification, Jamie. So you’re saying that the law society as a regulatory body can revisit precedent based on para. 44, i.e., “this threshold is met when a new legal issue is raised, or if there is a significant change in the circumstances or evidence. This balances the need for finality and stability with the recognition that when an appropriate case arises for revisiting precedent, a lower court must be able to perform its full role.” I wonder whether this situation will turn out to be “a balancing exercise, in which the Court must weigh correctness against certainty” (at para. 47). It will be interesting to see how this all unfolds, these are certainly interesting times.
“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”
So the Benchers of the Law Society consider it within their mandate to exclude from the profession people who are otherwise qualified by education and experience in pursuit of a social justice goal.
No matter how laudable the ultimate goal, does excluding qualified people from the profession actually not bother anyone?
Jamie,
There are two problem with that argument.
The first is that the legalization of same-sex marriage was not some unforeseen circumstance that was off the radar screen of the SCC in 2001. The 1999 SCC decision of M&H had already put the issue on the legal radar screen, and while the recognition of same-sex marriage wasn’t at issue in that case (it dealt with rights as common law partners), it left little doubt as to where the court would go in the future, if need be. Not for nothing, that case was cited as the govenring authority by the OCA in the 2003 Halpern decision.
Moreover, the TWU case was decided after Rev. Hawkes put the issue squarely on the public radar by performing the first gay marriage in Ontario in January 2001 (exploiting a technicality in Ontario’s marriage law) which would latter be the subject of the Halpern decision. As I said in response to an earlier article, the 2001 TWU decision doesn’t play the role of Plessy v. Ferguson to your imagined Brown v. Board of Education, the SCC in 2001 was very much alive to the rights of gay and lesbian Canadians in 2001.
Second, it’s also worth noting that the 2004 SCC reference on same sex marriage provides some helpful guidance on how the Court views the interplay of religous freedom with same-sex marriage, concluding that given the protections afforded to religous institutions under the Charter and provincial human rights laws, that it would be unlikely that religious institutions would be compelled to recognize gay marriage – a point that seems entirely consistent with the 2001 TWU decision.
It’s one thing to say that things have fundamentally changed and that the law should be revised, but let’s not pretent that the Halpenr decision represented a fundamental change in the law or an understanding of the law that wasn’t fully understood by the SCC in 2001, because that’s just not credible.
Jamie
“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.”
Not to make the point, but the legislature of BC has always said that the discriminary conduct of TWU is an acceptable infringmeent on the equality rights of LGBTQ people – its conduct is expressly permitted under the BC human rights code. So, on what possible basis can a legislative body such as the LSBC conclude that behaviour which is expressly permitted by the legislature of BC is also against the public interest? That was the key thrust of the SCC’s decision in TWU 2001. The role for the LSBC is not to regulate the discriminatory behaviour of BC universities – you have a human right commision to perform that role – it’s too ensure that future lawyers are competent and capable of properly serving the citizens of BC. Since you seem to concede the latter point, I’m not sure on what basis you can in good conscience oppose the accreditation of TWU.
The proper remedy is not to abuse the LSUC’s administrative authority to blackball TWU grads, but to lobby the BC government to end its statutory protection for TWU’s conduct (assuming that doing so doesn’t raise constitutional issues – which it might). So long as TWU’s conduct is legal (indeed, sanctioned), it’s an improper use of the LSBC’s statutory authority to try to punish it.
“So the Benchers of the Law Society consider it within their mandate to exclude from the profession people who are otherwise qualified by education and experience in pursuit of a social justice goal …does excluding qualified people from the profession actually not bother anyone?”
They are not being excluded from the profession. They can attend any law school they can get into based on the entry requirements that are applied to everyone. They can then be admitted to the profession (and throughout that process, they are not prevented from holding religious beliefs or worshipping in any way they wish).
On the other hand, most gay and lesbian students would not be able to attend TWU, given the required covenant, and would therefore have access to fewer of the already limited law school positions. A legal education is a prerequisite to access the profession. So if anyone is being excluded from the profession – or at least subjected to barriers – it is lesbian and gay individuals.
“On the other hand, most gay and lesbian students would not be able to attend TWU, given the required covenant…”
But unless married, the other students at TWU face the same restrictions – and somehow, they are able to cope. My experience (admittedly, several decades old) is that few students are married, even in grad school, although many have non-married serious relationships. It seems to me that you inflate a small issue to justify a preferred conclusion.
“… and would therefore have access to fewer of the already limited law school positions.
If TWU cannot establish a law school, there will be “X” Law schools that all interested undergrads can apply to. If TWU does establish a law school, there will be “X+1” law schools that all (perhaps non LGBTQ) students can apply to, and X law schools that students can apply to – this lessens the entrance pressure on all law schools. Tell me again how that is =not in the interests of all students, whether LGBTQ or not?
Please clear up for me how the covenant discriminates LGBT. My understanding from all the articles written is that TWU does not exclude homosexuals but excludes people who have sex outside of accepted marriage. Therefore it also excludes heterosexuals who have premarital and extramarital sex. A non-practising homosexual therefore should not be excluded from taking classes there.
Lee: “So if anyone is being excluded from the profession – or at least subjected to barriers – it is lesbian and gay individuals.”
To make the obvious point, how does allowing more people to go to TWU exclude gays and lesbians. It doesn’t reduce their access to the legal profession and, to the extent that students attend TWU who otherwise might have gone to UVic, UBC or some other Canadian law school, it might increase their opportunities at those schools. The only effect of barring TWU students is to exclude TWU students (some of whom, note, could be gays and lesbians willing to abide by TWU’s code of conduct).
More to the point, even if we accept your thesis, the difficulty is that TWU is legally permitted to discriminate against potential students based on their adherence to its religious beliefs – that’s protected by the BC human rights code and, according to the SCC, the Charter. The LSBC is not permitted to discriminate agaisnt TWU students based on their religious beliefs – the LSBC being subject to the Charter. It’s perfectly fair to say that TWU should be prohibited from discriminating against gays and lesbians, but that requires an amendment to the BC human rights code (and may raise some charter issues), and is properly the purview of the BC legislature, not the LSBC.
Students who wish to attend TWU law school are required by the code of conduct to refrain from having sex with their OWN SPOUSE, if they are legally married to a person of the same sex, or face being kicked out of law school.
Does this not seem a Charter issue in 2014?
Response to David Mohr: the issue is that TWU does not accept students who are married to spouses who are of the same sex. The Covenant discriminates against those persons, in that students who are married to opposite sex spouses are not at risk but students who are married to same sex spouses (assuming they are having sex!) are at risk of exuplsion.
Can the discrimination be more clear?
“Students who wish to attend TWU law school are required by the code of conduct to refrain from having sex with their OWN SPOUSE, if they are legally married to a person of the same sex, or face being kicked out of law school.
Does this not seem a Charter issue in 2014?”
Indeed it might be, if the Charter applied to TWU. It doesn’t, so it isn’t.
“the issue is that TWU does not accept students who are married to spouses who are of the same sex.”
That’s not accurate. It doesn’t accept students who are unwilling to live in accordance with the tenets of Christianity as understood by TWU, which is a rather important distinction. A married gay person willing to do so would be accepted. To be sure, the TWU covenant does have an adverse impact on married gay students, since it impacts on how they live their lives. On the other hand, the impact is equally adverse for single gay, or single heterosexual, students who want to attend TWU – I wonder how it deals with common law marriage?
In any event, the point is not that it isn’t discriminatory (although the discrimination is more nuanced than you suggest), but that it is discrimination which is not only legal in BC, but protected under the BC Human Rights Code (and, arguably, under the Charter). Not all discrimination is wrongful or prohibited (see, for example, Section 15(2) of the Charter) and the courts recognize that fact. See, for example, the decision of the SCC in the 2001 TWU decision, which dealt with precisely this issue, accepted that TWUs covenent was discriminatory, and that it was nevertheless illegal for the BC College of Teachers to refuse to accredit its graduates. There’s nothing new under the sun here, BC’s lawyers (and the Law Society of Upper Canada) have simply decided that they don’t like the law and don’t want to comply with it.
As an aside, do we believe that there is a large population of gay married people who want to attend a conservative Christian law school? Are there married gay students who genuinely want to attend TWU? Maybe they are, I don’t know, but that strikes me as two groups that wouldn’t have a lot of overlap.
Total agreement with what you are saying with a proviso. It has seemed to me throughout the discussion that the phrase “rule of law” has been used in a manner inconsistent with the definition provided by World Justice. The clarity provided by the Bedford case is helpful but the ratio of the BC Fed case was clearly never a precedent that predetermined the outcome of the issue now before the Law Society and to be before the Court.
‘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.’
Signing a covenant not to engage in intimate, private, same sex relations is, to say the least, objectionable. How many LGBTQ law students, future officers of the court, will sign the covenant but continue to practice what most of society has sanctioned? Very tempting, as the covenant is likely to be seen as flawed and based on unsupportable, archaic and unreasonably discriminatory principles. Nevertheless the result would be a sacrifice of personal integrity – an ominous first step in a legal career.
In approaching ethical dilemmas, we often say, “if it feels wrong, it probably is.” Well, this feels very wrong, and to the extent that it may be legally right, I’m holding my nose but voting “yes” on the referendum.
Mr. Maclaren,
I am grateful for the leadership you provide as a Bencher and I sincerely admire your considerable pro bono contributions.
I note from your profile that you conduct seminars through the Salvation Army. You must be quite familiar with that organization and the incredible work that they do. No doubt you are also familiar with their position statement on sexuality: “The Salvation Army believes that God’s will for the expression of sexual intimacy is revealed in the Bible, and that living fully in accordance with biblical standards calls for chastity outside of heterosexual marriage and faithfulness within it.”
That’s awfully similar to TWU’s position, isn’t it?
Somehow, I think you’d agree, the Salvation Army is able to hold to a traditional view of marriage, and still extend grace and love and acceptance to everyone they come into contact with, without judgement.
Is it possible that TWU Law students and graduates might be able to do the same?
Or are you advocating that we move to a world in which all government-granted benefits to organizations like TWU and the Salvation Army (e.g. charitable status?) should be revoked because of their “abhorrent” beliefs?
Something to think about.