I guess being the Law Society of Upper Canada (the “LSUC“) means you aren’t compelled to comply with silly little rules… like the law. How else can one explain the appalling decision of the LSUC to refuse to accredit the proposed new law school at Trinity Western University (“TWU“)?
I’ve written about this story before (see here). TWU is a private, Christian, University operating in British Columba which is opening a new law school (not that Canada needs a new law school, we have too many already, but that’s a separate story) and has been trying to get it accredited by provincial law societies across Canada. The problem is, as part of being a religious university, it requires its students to sign a “community covenant” that, amongst a long list of prohibited behaviours (no illegal drugs, no drunkenness – no drunkenness!?!?! At a university? – no pornography, respect for life, etc.), prohibits students from engaging in homosexual sexual activity. As a result, late last month, the LSUC refused to accredit TWU, by all accounts solely as a result of TWU’s covenant (this decision was followed shortly after by a similar decision on the part of the Nova Scotia law society).
So what’s wrong the LSUC’s decision? Well, for one thing, the Supreme Court of Canada (the “SCC“) has previously said that a professional body, like the LSUC, can’t refuse to accredit TWU (or its graduates) solely because they dislike TWU’s covenant. In a 2001 decision, the SCC (by an 8 to 1 majority) overturned a decision by the BC college of teachers to refused to accredit graduates of TWU, finding that such a decision was unreasonable. Moreover, although not required to rule on the issue, the majority of the SCC hinted strongly that the decision violated the charter rights of TWU graduates by discriminating against them on the basis of their religious faith, noting that the constitutionally protected equality rights of gays and lesbians could not be used as a basis to override the equally constitutionally protected religious freedoms of TWU students.
Gee, you might think, in the face of a strong recent decision by the SCC of Canada directly on point the Benchers of the LSUC might put aside their (quite reasonable) personal qualms about TWU’s covenant and, you know, comply with the law. And certainly a minority of the Benchers accepted this point. As Bencher Barbar Murchie noted: “It seems to me that the Supreme Court has already balanced the rights of the LGBT community… “We are bound by the law and there is no legal reason not to accredit.” Apparently not, instead a majority of the Benchers refused to accredit TWU and Benchers trotted out all sorts of arguments about why the SCC decision doesn’t apply to them. What’s telling – and a depressing commentary on either the intellect or integrity of these leading members of the Ontario legal profession – is how pathetic these assorted rationale are. Consider the main arguments made by opponents of TWU.
- TWU’s Covenant is illegal and violates human rights law
This appears to have been the view of Bencher John Campion (and others). In his view, TWU shouldn’t have been accredited because its covenant “has little to do with religious views. It has to do with sexuality. If it is discriminatory and against the laws of Ontario, we cannot approve it.” Since he opposed it, presumably he concluded it was discriminatory and against the laws of Ontario.
Now this would be a particularly compelling argument but for one little problem – TWU’s covenant appears to be legal, at least according to the SCC. A variation of Campion’s argument was made in 2001 by the BCCT, and the SCC pointed out that, while discriminating against gays and lesbians would generally be illegal under the BC Human Rights Code, that Code contained an exemption from human rights legislation for not-for-profit organizations serving, amongst other things, a particular religious community, permitting such organization to discriminate in favour of members of that community. After all, BC has a fairly active human rights commission, you’d think that if TWU’s covenant were illegal, it might have taken some steps to shut it down.
Funny thing, section 18 Ontario’s human rights code contains a similar provision, which expressly excludes religious and educational organizations serving members of a particular religious group (i.e., in this case, believers in TWU’s interpretation of the bible) from the application of the human rights code. That provision reads:
The rights under Part I to equal treatment with respect to services and facilities, with or without accommodation, are not infringed where membership or participation in a religious, philanthropic, educational, fraternal or social institution or organization that is primarily engaged in serving the interests of persons identified by a prohibited ground of discrimination [i.e. religion] is restricted to persons who are similarly identified.
Now, I’m not a human rights lawyer, but the obvious interpretation of that provision is that it is intended to cover precisely the TWU situation.
Now, Campion isn’t a dummy, his claim that the covenant is about sexuality not religion may be his attempt to avoid the application of this section. But that’s an argument he can only make if either (i) he hasn’t read the TWU covenant (and its shocking how few opponents of TWU have actually read it), or (ii) he’s being disingenuous. As I’ve argued elsewhere (here, for example), the impugned provisions of the TWU covenant dealing (only in part) with homosexuality constitute 2 sentences in a 5 page document. Ignore those two sentences and the TWU covenant has nothing to do with sexuality and everything to do with living in accordance with what TWU characterizes as a Christian lifestyle.
Moreover, the two impugned sentences don’t deal uniquely with homosexuality or sexuality per se, they are focused on what TWU would characterize as “un-Christian” sexual acts. Sure, that includes homosexual sex, but also heterosexual sex outside of marriage, adultery and sexuality that is not in keeping with “God’s intention that it be enjoyed as a means for marital intimacy and procreation” (your guess is as good as mine about what that means, but I suspect that anyone who gest off on auto-erotic asphyxiation need not apply). I don’t know how a reasonable person can read the TWU covenant and conclude, in good faith, that it has “little to do with religion”. Read in its entirely it has little to do with sexuality, and a lot to do with a certain conception of Christianity.
In that light, the claims made by Campion and others that TWU’s covenant is illegal are, to be charitable, untenable.
2. The LSUC has a duty to uphold diversity and equal access to the law profession
This was the argument made by Bencher Malcolm Mercer who claimed that TWU did not address the law society’s duty to uphold diversity and equal access to the law profession.
There are two problems with this argument. First, it’s not clear how refusing to accredit a law school that brings, it must be conceded, a perspective that is unique in Canada (any other Christian law schools out there?) “upholds diversity”. Whatever else TWU brings to the table, a unique perspective is one of them. Now, I suspect what Mercer is using “diversity” in this context in the post-modernist sense of the word, i.e., that diversity means a variety of people, perspectives, etc. that he agrees with. That isn’t diversity in any objectively reasonable sense of the word, but what does reasonableness have to do with post-modernism?
Second, and more problematically, it’s not clear what the source of this purported “duty” to uphold diversity and equal access to the law profession” is. Funny, I read the Law Society Act (which governs the LSUC) and it doesn’t seem to be there. Section 4.1 of the Law Society Act does say that :
It is a function of the Society to ensure that,
(a) all persons who practise law in Ontario or provide legal services in Ontario meet standards of learning, professional competence and professional conduct that are appropriate for the legal services they provide; and
(b) the standards of learning, professional competence and professional conduct for the provision of a particular legal service in a particular area of law apply equally to persons who practise law in Ontario and persons who provide legal services in Ontario.
The Law Society Act goes on to say, in section 4.2, that
In carrying out its functions, duties and powers under this Act, the Society shall have regard to the following principles:
1. The Society has a duty to maintain and advance the cause of justice and the rule of law.
2. The Society has a duty to act so as to facilitate access to justice for the people of Ontario.
3. The Society has a duty to protect the public interest.
4. The Society has a duty to act in a timely, open and efficient manner.
5. Standards of learning, professional competence and professional conduct for licensees and restrictions on who may provide particular legal services should be proportionate to the significance of the regulatory objectives sought to be realized
Hmm, funny, I don’t see anything about a duty to uphold diversity or promote equal access to the profession – indeed the word “diversity” isn’t found in the statute. It does have a duty to ensure that TWU graduates meet appropriate “standards of learning, professional competence and professional conduct”, but nothing about promoting diversity or equal access. I do see something about a duty to “maintain and advance the cause of justice and the rule of law” – which suggests thumbing your nose at a SCC decision directly on point is a “no, no”. Do Benchers not read the law that governs them? Mercer’s argument is wholly without merit.
3. Accrediting TWU Is not in the Public Interest
This is the argument made by those Benchers who are familiar with the provisions of the Law Society Act cited above, such as Howard Goldbatt, who said that: “I cannot accept that it’s in the public interest to accredit a law school that wants to control its students in the bedroom”. Now, sure the LSUC has to regulate the profession in accordance with the public interst.
But again, there are a host of problems with this argument. Goldblatt’s argument itself is baseless. It’s hard to see what public interest is harmed by TWU’s covenant governing the behavior of its students. The state may have no business in the bedrooms of the nation, but it is certainly open to a private organization to impose standards on the private conduct of its members.
A more sophisticated version of this argument is that it is not in the public interest to accredit an institution that discriminates against homosexuals. This, at least, is plausible. But there’s a problem, this very argument was rejected by the SCC in the 2001 TWU decision. In that decision, the Court pointed to the exception provided in the BC Human Rights Code for organizations such as TWU as evidence that the impugned conduct was not contrary to the public interest saying:
“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.”
It’s certainly difficult to argue that a practice that is expressly permitted by Ontario’s human rights law is against the public interest.
Moreover, even if one accepts that TWU’s covenant is against the public interest, it’s not clear how it is against the public interest to prohibit otherwise qualified graduates from practicing in Ontario. The LSUC does have a duty to facilitate access to justice for the people of Ontario. It’ s hard to see how barring potentially qualified lawyers from practicing in Ontario because it disagrees with the policies of their law school furthers that obligation. It would be different if the LSUC excluded TWU graduates on a person by person basis on the basis that individual graduates failed to comply with their legal and ethical obligations (including the duty to comply with human rights laws in their practice of law) – but that isn’t what the LSUC is doing here.
Moreover, if it’s against the public interest to allow TWU graduates to practice in Ontario because of TWU’s policies, what about graduates from other universities? Graduates from Christian law schools in the US can practice in Ontario if they satisfy the NCA requirements. Graduates from the University of Tehran law school could do the same (think that law school has a gay-straight alliance?). What about graduates of Ontario’s (constitutionally protected) Catholic school system (which would probably include a good chunk of the Ontario bar)? How far down this rabbit hole does the LSUC want to fall?
4. The SCC Decision Won’t Apply Because The Licensing of Lawyers is Different From the Licensing of Teachers
This was a position taken by Lee Akazaki (although not a Bencher, he is a respected member of the profession) who argued that:
“The basic difference there from an administrative law standpoint is that teachers in Canada generally, and in British Columbia specifically, are a regulated profession. That’s to say the government controls the teaching profession,” he says (in the Law Times).
Unlike the situation with lawyers, “the state does govern what teachers do and cannot do. It wasn’t really for the College of Teachers to make that decision,” Akazaki adds.
While the B.C. College of Teachers had a narrow jurisdiction to make a call about whether to accredit Trinity Western-trained teachers, the law societies that govern the legal profession control the entire licensing process, he notes. “So in terms of where the court case would end up, it would definitely end up in a place that’s different conceptually than British Columbia College of Teachers [the earlier SCC decision].”
On its surface, this seems like a plausible argument, but on a closer examination, not only does it fall apart, it actually makes the LSUC’s decision even less reasonable.
The first point, and one that’s fatal to the whole argument, is that the distinction he makes between teachers and lawyers is a false one. Both are regulated professions, in that both the BC college of teachers and the LSUC are statutory bodies established by the governments of BC and Ontario, respectively, to regulate the professions of teaching and the law. Their enabling legislation, the Teaching Profession Act and the Law Society Act, respectively, each grant – contra Akazaki – significant discretion in determining how to license teachers and lawyers. In the 2001 decision, the SCC looked at the relevant statutory provisions of the Teaching Profession Act (section 4), and concluded that it did not grant the BCCT an authority to refuse to accredit TWU graduates because of TWU’s covenant.
What’s striking is that section 4 of the Teaching Profession Act is substantially identical to the corresponding provisions of the Law Society Act (sections 4.1 and 4.2, referenced above):
It is the object of the college to establish, having regard to the public interest, standards for the education, professional responsibility and competence of certificate holders and applicants for certificates of qualification and, consistent with that object, to encourage the professional interest of certificate holders in those matters.
I’m not sure how a reasonable person – and Akazaki seems like a reasonable person – can read sections 4.1 and 4.2 of the Law Society Act, then read section 4 of the Teaching Profession Act and claim that the former is so different from the latter that the dictates of the SCC in the TWU decision won’t apply. It boggled the mind.
Mind you, he’s right about one thing, unlike teachers, the LSUC does have it’s own licensing standard. It’s not enough to have a law degree, to become a lawyer one either has to complete articles with a senior member of the bar or complete the LSUC’s new licensing practice program. But far from supporting Akazaki’s case, that fact actually blows it out of the water. To the extent there is a concern that graduates of TWU are a collection of homophobes who will discriminate against gays and lesbians in the practice of law (of which there is no evidence), the LSUC’s licensing process would allow the LSUC to weed them out. Similarly, if the concern is that TWU would fail to adequately instill in its graduates a respect for the human rights of gays and lesbians, the licensing process would address that short-coming as well. That the LSUC has its own licensing process makes its refusal to accredit TWU even more unreasonable than the impugned decision of the BC College of Teachers in the 2001 case.
Indeed, in that case, the BC College of Teachers was willing to accredit TWU graduates, provide they completed an extra year at Simon Fraser University (no doubt to beat the presumed homophobia out of them). The irony here is that the by refusing to accredit TWU students, the LSUC is essentially rejecting the position that was adopted by the BC College of Teachers in TWU. In that sense, Akasaki is right that the facts of this case are different from before the SCC in 2001, but not in a way that even remotely supports the LSUC’s decision.
* * *
I could go on, there are all sorts of variations of these arguments. What’s shocking about them is that none of them are remotely tenable. You’d think that these arguments were made by people who are completely ignorant of the relevant law, or at least you’d think that if you didn’t know that they were being made by leading members of the Ontario bar. If they believe that these arguments are plausible, it doesn’t say much for their legal acumen.
But the alternative is that the Bencher who voted against TWU, did so knowing full well that their arguments are untenable, but voted against TWU anyhow because they didn’t want to make a decision that would be controversial and unpopular (however correct in law), leaving it to TWU to challenge their decision in court (as it is – I gather it has retained Bennett Jones LLP). While the arguments are weak, they allow Benchers to pay lip-service to the rule of law by trying to distinguish the earlier SCC decision. When the Courts inevitably rule against the LSUC (as they will, bound as they are by the prior SCC decision) then the Benchers can wash their hands of the decision, that they should have made (and, it must be said, some did).
This is the possibility that I find very disturbing. I don’t particularly truck with TWU or its community covenant, and a I certainly don’t have a horse in this race, being a straight agnostic. But as a lawyer, I believe strongly in upholding the rule of law and protecting the rights of everyone, whether I like them or not – that is a belief that goes to the core of what it means to be a lawyer. I find the prospect that Benchers of the LSUC would ignore or disregard a SCC decision governing their actions, because they don’t like TWU or its covenant, to be shocking. Given the weakness of the arguments against TWU, however, the decision not to accredit TWU amounts to flipping the bird to the SCC – it would be different if their arguments had some, any, basis. The decision is all the more appalling since it commits the LSUC (whose funds are paid by members like me) to fight what will no doubt be a long and unsuccessful court battle (after which the LSUC will likely, and rightly, be stuck with TWU’s fees).
All lawyers, and especially Benchers of the LSUC, have an ethical obligation to promote the rule of law, whether they like the result or not – that is the essence of the rule of law. That isn’t to say that you can’t advance new or different arguments, or challenge prior decisions, but it means an administrative body like the LSUC can’t just ignore decisions it doesn’t like, particularly when the challenge is forlorn hope, with little likelihood of success. The fact that many Benchers are personally uncomfortable with, or actively dislike, TWU’s perspective makes it that much more important that the rule of law be respected – the rule of law is meaningless if we don’t extend the protection of the law to unpopular people or groups. For Benchers of the LSUC to ignore a decision of the SCC directly on point on the basis of the pathetic arguments set out above, is disgraceful.
It’ll be interesting to see what the courts have to say about those arguments. If – when – the courts reject them (as I expect they will) as being completely untenable, I wonder if the Bencher who voted against TWU on those grounds will have the decency to resign? They should.