Trinity Western… Again
I can’t stop thinking about the law society decisions on Trinity Western University (TWU). Part of the reason for that is the complexity and difficulty of the substantive issue raised by TWU’s proposed law school: the proper resolution of an irreducible conflict between equality rights and freedom of religion (I discuss that here). But as I spent the last few weeks teaching administrative law procedural fairness, I realized that the other thing bothering me about the law society decisions is the process used to reach them.
As far as I can tell, each law society that has independently considered TWU’s application for accreditation (or is likely to) has proceeded by way of a quasi-legislative process: TWU and other interested parties make submissions to a meeting of benchers, who then debate the question and vote. In April British Columbia benchers voted 20-6 against a motion barring TWU graduates from admission – a decision the benchers reversed in October following a referendum of its members. In Ontario benchers voted 28-21, with one abstention, to reject TWU’s application for accreditation (its process is discussed here). In Nova Scotia benchers voted 10-9 to make accreditation conditional on TWU withdrawing the community covenant which precludes LGBT students from attending.
New Brunswick had a vote of it membership, with 137-30 members voting in favour of a resolution directing the Law Society of New Brunswick not to accredit TWU. British Columbia has now also turned to its membership for a decision, putting the question to them for vote on a binding resolution.
The result of these decisions is that in some provinces we have a majority of elected benchers, or law society members, who do not think TWU ought to be accredited. What we do not have is any clear articulation of the reasons for those decisions, or their basis in law or fact.
That absence of articulated reasons is understandable and reasonable for an administrative body making a quasi-legislative decision. Such decisions involve matters of policy, and decide “polycentric” questions dependent on the balancing and resolution of a variety of competing factors. They are directed at no person in particular but rather at broader problems affecting people (or groups of people) in general. Such decisions do not properly require an evidentiary hearing before an impartial decision-maker who issues reasons; indeed, that sort of process would be inappropriate – it would be obtaining the wrong sorts of information and asking the wrong sorts of questions to determine public policy and to balance multiple concerns in the way that legislatures do.
But the decision on whether to accredit TWU is not a legislative or quasi-legislative decision. It is a decision directed at a specific party and determining the legal meaning and effect of that party’s conduct. It is at its heart adjudicative. A decision that TWU ought not to be accredited involves this sort of reasoning process:
- Law societies ought not to accredit schools that discriminate (or: law societies have the legal authority not to accredit schools that discriminate and ought to exercise that authority);
- Discrimination is defined as violating equality rights regardless of a claim of religious excuse;
- TWU is discriminatory;
- Therefore TWU ought not to be accredited.
That type of decision – identifying the applicable legal standard, specifying the meaning of that standard and applying it to a particular case – is what judges do, not what legislatures do. It ought, therefore, to be made in accordance with the kind of process appropriate for judicial or quasi-judicial decision-makers: a hearing before a relatively (this being administrative law) impartial decision-maker who issues reasons explaining its decision.
It may be that for statutory reasons law societies felt compelled to use the type of process that they did. TWU may also have acquiesced in it. Law societies may additionally have been relying to some extent on the Federation of Law Societies’ earlier more adjudicative process.
A more adjudicative process at the law societies rejecting TWU’s application would, however, have had considerable advantages. If nothing else, it would have clarified exactly what definition of discrimination the law societies are using, and the way in which TWU contravenes it. That, in turn, would have clarified the substantive issues before the court on judicial review and allowed the court to determine whether that definition is reasonable (or correct, if that is the applicable standard) and within the legislative authority of the law society to apply. The court could consider, as it ought to do when giving deferential judicial review, whether the reasons offered by the law societies are transparent, justifiable and intelligible.
Instead, a court considering TWU’s application for judicial review will have nothing to go on other than the submissions made by parties to the law societies and to the court; a transcript of a debate; the question asked and the tally of the resulting vote. And in the case of New Brunswick and British Columbia, a vote of the membership is all that it will have. That means that even if it ostensibly applies a deferential standard, the court will end up having to essentially make its own decision on the record and the law. What choice will it have? There are no reasons for it to defer to, no decision for it to assess as justifiable, transparent and intelligible.
I have been quite critical of the law societies’ assumption of the jurisdiction and authority to define the appropriate balance between equality rights and freedom of religion, suggesting that human rights tribunals or legislatures are more appropriate institutions to make that assessment. However, had the law societies in fact taken on the task of articulating their jurisdiction over law school discrimination, had defined what constitutes discrimination at a law school and explained why TWU’s conduct is discriminatory, and had done so with relative impartiality and after a full evidentiary hearing, my concerns would be considerably ameliorated. Even if I did not agree with the result, I would understand and respect the authority of the law societies to reach it.
Instead the debate over TWU can only focus on the result, rather than on the reasons that underlie it. And I retain an uneasy feeling that law society benchers and members have decided based on their intuitions and perceptions about what discrimination is and looks like, rather than on the fair and impartial application of a legal standard to a set of facts. Everyone here – TWU’s supporters and its opponents – deserves better than that. And the proper functioning of our legal system requires it.
Thanks, Alice. You make some good points. But I challenge your characterization of the bencher decision-making processes as more quasi-legislative than quasi-adjudicative.
Using BC as an example (despite the circuitous route the Law Society of BC took to its final decision), the benchers exercised their statutory duty under Section 3 of the Legal Profession Act to “uphold and protect the public interest in the administration of justice by (a) preserving and protecting the rights and freedoms of all persons” when considering the issue of TWU’s accreditation. In doing so, each bencher considered the hundreds of pages of submissions made to the Law Society of BC, and the 2001 SCC decision in TWU v BC Teachers College above all else. Each bencher provided oral reasons for their decisions (since there was more than one round of decision-making in BC) which are all still viewable through video links on the Law Society of BC website. Many if not all benchers articulated their view as to why TWU’s Community Covenant is discriminatory, and then opined as to whether or not the rule of law permitted such discrimination.
When the vote was called, there were no BC benchers who moved off their stated reasons for decision. So the decision-making process had little in common with a genuine debate, and a lot in common with a very large panel of concurring and dissenting judges. To me, that all amounts to a clear process of applying the law rather making the law.
I grant you that the referendum process in BC muddies these waters more than a bit– but that’s a discussion for another day, I suppose. Maybe the 20 majority benchers should have followed the 7 minority benchers in the first place? [ducks for cover]
Good post, I’d been wondering about the same issue too. While punting issues to the membership may be appropriate where the decision involves matters of policy (say, in establishing a rule on how many hours of CPD time lawyers are required to obtain or in approving new rules of professional conduct or bylaws) rather than administrative decisins involving a weighing of Charter values , in these sort of circumstances, it’s hard to see how the decision in BC or NB can survive judicial scrutiny (even if one doesn’t believe that the earlier SCC decisionin TWU doesn’t govern). In this case, there’s no basis for claiming that the law societies weighted those charter values – they just did what they were told by their memberhsip.
In particular, I think the LSBC has a problem because benchers “must not implement a resolution if to do so would constitute a breach of their statutory duties” (13(4) of Legal Profession Act). That they previously determined that they couldn’t refuse to accredit TWU would seem to fatally undermine the subsequent enforcement of the referendum result. Essentially, in order for the LSBC to win its case, it has to repudiate its own position. Not an enviable position to be in.
“So the decision-making process had little in common with a genuine debate, and a lot in common with a very large panel of concurring and dissenting judges. To me, that all amounts to a clear process of applying the law rather making the law.”
Jamie,
I didn’t read Alice as disagreeing with you on that point. I think the point she’s making is that the processes used in BC and NB would only be appropriate if they were performing an quasi-legislative role (i.e., in the example I gave earlier, establishing new rules of professional conduct or by-laws, or making rules of general application).
I think the problem is that such mechanisms are not appropriate in an adjudicative context, and make the ultimate decision either very difficult for a court to review (in that there are no reasons to review ) or very easy to review (by proceeding by way of vote the law societies, prima facie, failed to comply with their duties of fairness and their duties to weigh various Charter values. This is particularly problematic in BC where the Benchers came to a different conclusion when making the decision on their own). Whatever one thinks the “right” answer should be, making an administrative decision by way of mass vote raises serious administrative fairness and charter values concerns.
First in the interest of full disclosure I will mention that my colleagues at JFK Law are part of the team challenging the Minister’s decision to accredit the TWU degree proposal. That being said his comment does not come from them and does not represent the level of analysis that they will bring to bear in their legal arguments.
In my view the analysis above makes an assumption about the assignment of the evaluation of Charter values to the adjudicative realm which is not correct given the structure of our Constitution. The application of the Charter whether in an adjudicative Oakes analysis or in an administrative Dore analysis requires the analysis both of rights and of limits that arise out of the democratic nature of our society. This analysis is further complicated by the fact that in some cases (this being one) the application of the Charter requires balancing competing Charter rights — a balancing which itself may benefit from some democratic input.
Thus the analysis of whether TWU’s degree should be recognized as being appropriate to generate persons who are qualified to practice law requires assessing whether or not there is discriminatory effect in recognizing the program; whether there is a genuine implication for religious freedom in denying the application and to the extent that that there is both, what weight should be given to each. Further this decision is being made in the context of a legislative structure which recognizes law as a self-governing profession and which assigns the members (not just the benchers) a role in the decision making process. Looked at in this light there is absolutely nothing wrong with the Benchers recognizing that they may well have gotten the balance wrong in their initial decision — particularly given the views expressed by the membership after a vigorous public debate which focused exactly on these issues.
The Charter of Rights and Freedoms is not the sole property of the judiciary or quasi-judicial entities. It belongs to all of us and in the case of the manner in which the Law Society of British Columbia made its decision it was a decision made transparently and democratically after a debate informed by law, history and an expression of the modern values of the legal profession. How can it be intrinsically wrong that the membership of a self-governing profession cannot have a voice in making it clear that in today’s environment that the legal profession cannot countenance in its training the stigmatization and marginalization of gay and lesbian persons?
Mr. Janes,
You ask: “How can it be intrinsically wrong that the membership of a self-governing profession cannot have a voice in making it clear that in today’s environment that the legal profession cannot countenance in its training the stigmatization and marginalization of gay and lesbian persons?” So, does that mean that persons belonging to other religious faiths holding the same beliefs should not be called to the Bar? Are all Bar candidates to be screened for their religious or secular beliefs whether they be sexist, racists etc.? Are religous and non-religous beliefs not an influence on a lawyer’s practice? Where is the line to be drawn? Or, should a line be drawn?
My comment is directed at the issue of process leading to the decision rather than substantive content (although I do have a substantive comment view) of the outcome of the decision. There is no doubt that the courts will ultimately have an important role to play in adjudicating whether the Law Societies and the Minister crossed the s. 15 and/or s. 2 lines. My point would be that adjudicative bodies are not the only ones that can contribute to the determination of where that line lies. I will comment that in this case this view is reinforced by the fact that TWU has largely been exempted from the operation of the Human Rights Code in relation to certain matters which suggests an intention to move the analysis out of the adjudicative and into the realm of policy analysis.
As to your hypothetical situations my answer is two-fold. The first is, “of course not” as this would be purely discriminatory. The second is that this is simply not at issue in this case as the question is not “are students that are Evangelical Christians unfit to practice law” but “can a school that offers services to the general public choose to discriminate against gay and lesbian students?” (subject to the arguments that will be made about whether the policies are in fact discriminatory). I my view the analysis would be different (not saying the outcome would be necessarily be different) if TWU limited its admissions to Evangelical Christians (in which case they would forgo the market benefits of offering services to the public) or if they had a statement of beliefs non-Christians were not required to sign.
Here TWU has picked and chosen what to have people explicitly sign on to. For example, a core tenant of Evangelical Christianity is a belief in Jesus Christ as a person redeemer — the failure to believe in this is fundamentally contrary to Evangelical Christianity — yet students are not required to sign on to this course of conduct or to follow any of the outward behaviours that mark Christian worship to be a student at TWU. Indeed they can have beliefs, follow religious practices and make outward speech that are radically opposed to and contrary to that (as long as they sign the covenant and pay their fees). On the other hand a gay or lesbian lawfully married couple are required to enter into a binding contract that (1) puts their marriage outside the definition of marriage and (2) requires them to forgo sexual intimacy. This raises more complex questions than “is the law society banning a Christian school?” or “is the law society screening out Christians?”
A better analogy would be a secular candidate for call to the bar who announced publicly and loudly that his beliefs precluded him from offering services to Evangelical Christians because of their beliefs unless they signed a retainer that precluded them from prayer or public worship while he was their lawyer. In practice this would be contrary to the Human Rights Code but in the context of the Law Society considering such a person for call to the bar it would be my view that it would also be fair on the part of the credentials committee to view such a candidate as unfit to practice law. They would not only be professing a belief but announcing that they were going to act on that belief to preclude offering legal services to an identifiable segment of society based on their beliefs and personal characteristics.
Mr. Janes, Thank you for your response and clarifications. In essence, what you’re saying is that should TWU forgo the requirement to sign their contract that would make the school eligible to be accredited.
You’ve stated that “Here TWU has picked and chosen what to have people explicitly sign on to.” I suppose it can also be argued that those applying to TWU are fully aware of the necessary requirement to sign the contract but have “picked and chosen” to seek admittance nonetheless.
“A better analogy would be a secular candidate for call to the bar who announced publicly and loudly that his beliefs precluded him from offering services to Evangelical Christians because of their beliefs unless they signed a retainer that precluded them from prayer or public worship while he was their lawyer.” I myself would prefer to know a lawyer’s bias up front than to hire someone who goes through the necessary motions while discriminating against me by not putting lets say … as much effort as he or she should into representing me or my cause. Knowing ahead of time would make things a lot less difficult for the client and prevent loss time and money. But it appears what’s being advocated by the law societies is a policy of don’t ask, don’t tell.
“can a school that offers services to the general public choose to discriminate against gay and lesbian students?”
Easy answer. No. There’s no doubt that if TWU’s covenant consisted of one line “No Gays”, no one would even suggest that it should be accredited – it would also, almost certainly violate BC Human Rights Code.
But, what if the school offers services targeted at a segment of the general public – evangelical Christians – whose religion holds that homosexuality is a sin? What if it further requires students to govern themselves, while at that school in accordance with the tenets – as understood by that school. What if one, but only one, of the requirements was not to engage in “un-Christian” sexual activities? To be sure, that applies to gays and lesbians, but equally applies to single heterosexuals, Jian Ghomeshi, etc. Now, that’s a very different situation. And while the result of that requirement is certainly discriminatory, that result is incidental to the principal purpose – promoting Christian values, as undestood by that school – rather than.
Now, you seem to recognize that distinction by suggesting that the analysis would be different if admissions were limited to Evangelical Christians. I’m not sure why an even MORE exclusive admission policy affects your analysis. As a practical matter, a policy which requires adherence to TWU’s conception of Christian values is likely to attract only those members of the public that share those values and turn-off those who do not. (On one level, the entire debate around TWU’s covenant is an academic exercise – are the many gays and lesbians for whom the covenant is a barrier who would otherwise attend TWU?) Certainly, BC human rights legislation does not require that religious organizations EXCLUSIVELY serve members of their faith in order to be exempt from the application of the BC Human Rights code, provided that their primary purpose is serving members of their faith.
Now, you’re wrong that TWU does not require its students to sign on to a course of conduct consistent with or reflecting Christian faith (as understood by TWU). In fact, I’m not sure how you could have read the TWU covenant and come to that conclusion. In a 5 page document, it has 27 footnotes referencing the biblical sources for the various rules governing student behaviour (of which prohibitions on certain sexual activities are just one example). Granted, those are values that are not exclusive to Christianity (or evangelical Christianity) and I suspect many non-Christians (or, for that matter, Christian gays and lesbians) could sign that code of conduct in good conscience, but that seems to be a weak criticism of TWU – it’s too inclusive? Indeed, presumably religious freedom allows religious groups to accept outsiders, how else can they convert them?
‘A better analogy would be a secular candidate for call to the bar who announced publicly and loudly that his beliefs precluded him from offering services to Evangelical Christians because of their beliefs unless they signed a retainer that precluded them from prayer or public worship while he was their lawyer. ”
That’s not a good analogy at all. Such a course of conduct would be illegal in BC under the BC human rights code. It woul also violate the rules of professional conduct of the LSBC. Equally, a evangelical Christian who similarly refused to serve gays and lesbians would be equally in the soup. But neither the BC human rights code nor the LSBC rules of professional conduct govern the behaviour of a private religious university.
Mr. James,
I also confess to being mystified why you would say “Here TWU has picked and chosen what to have people explicitly sign on to. For example, a core tenant of Evangelical Christianity is a belief in Jesus Christ as a person redeemer — the failure to believe in this is fundamentally contrary to Evangelical Christianity — yet students are not required to sign on to this course of conduct or to follow any of the outward behaviours that mark Christian worship to be a student at TWU. ” given what the covenant says on pages 1-2
“The University’s acceptance of the Bible as the divinely inspired, authoritative guide for
personal and community life1 is foundational to its affirmation that people flourish and
most fully reach their potential when they delight in seeking God’s purposes, and when
they renounce and resist the things that stand in the way of those purposes being
fulfilled. This ongoing God-enabled pursuit of a holy life is an inner transformation that
actualizes a life of purpose and eternal significance.Such a distinctly Christian way of
living finds its fullest expression in Christian love, which was exemplified fully by Jesus
Christ, and is characterized by humility, self-sacrifice, mercy and justice, and mutual
submission for the good of others.
This biblical foundation inspires TWU to be a distinctly Christian university in which
members and others observe and experience truth, compassion, reconciliation, and hope.
TWU envisions itself to be a community where members demonstrate concern for the
well-being of others, where rigorous intellectual learning occurs in the context of whole
person development, where members give priority to spiritual formation, and where
service-oriented citizenship is modeled.”
http://www.twu.ca/studenthandbook/twu-community-covenant-agreement.pdf
Back to Alice’s question, the decisions were legislative because the law societies govern lawyers and law students seeking entry.
Law societies in Canadian provinces do not govern law schools or any other entity from which students may obtain law degrees apart from law societies themselves, who still have vestigial power to grant law degrees. That is why TWU’s law school is a matter of B.C. government regulation, not law society regulation either in B.C. or another province.
Similarly, law societies do not govern law firms, corporate or government law departments, or any organizational entity into which a lawyer may enter to practice law.
So as a matter of vires, the law society decisions do not concern a specific party or entity but rather all candidates for entry into the profession who obtain degrees from the specific entity, whoever those candidates may be. Ergo, the decisions are legislative and policy-making, not adjudicative in nature.