If the case against TWU law school is so strong, why do its opponents have to mistate what the law actually is?

I’m not sure why I actually care  about the Trinity Western University (“TWU“) law school (which I’ve written about ad nauseum, here, here and, most recently, here) or whether or not it gets accredited by the provincial law societies.   I went to a proper law school (UofT) and frankly would rather spend my weekend at the local gay pride parade than at bible study with the TWU grads. Yet, here I am, defending TWU.  In part, though, I think its the fact that, as a lawyer, I’m offended by the by shabby, misleading, and plain stupid legal arguments being made against TWU.

By way of background, for those of you who haven’t been following, TWU is a private Christian university which wants to open up its own law school.  Unfortunately, it requires students to live according to a code of conduct that prohibits gays and lesbians from having sex (it also prohibits some, but not all, heterosexuals from having sex, but let’s not get into that).  For that reason, it’s been condemned as anti-gay and certain provincial law societies, notably Ontario’s have refused to accredit it.  This wouldn’t be a problem were it not for the fact that the Supreme Court of Canada, in a 2001 decision, previously held that it was not legal for a professional regulatory body (in that case, the BC college of teachers) to refuse to accredit TWU or its students on the basis of TWU’s code of conduct.

Hmm, gee, a decision by the Supreme Court of Canada, you might think lawyers would know to follow that.

Or not.  And so we’ve seen a stream of arguments about why the law societies are not bound by the 2001 TWU decision.  I’ve addressed some of the sillier ones here, but in the past week, I’ve seen a new one emerge as the favourite of the anti-TWU camp (although it’s been kicking around for a while), having been advanced by law students and academics, lawyers, benchers and activists. Far and away, the best example of the new anti-TWU tact occurs in the Canadian Bar Association National Magazine, in an article by Douglas Judson titled: “Bearing false witness” in which he accuses TWU’s defenders of “illogical and misleading criticisms” and “falsehoods designed to skew public sympathy”.

Now as a starting point, it’s actually quite rich for Judson to accuse TWU’s defenders of “illogical and misleading criticism” or of promoting falsehoods given that his arguments are either strawmen, wrong or blatantly misleading.  One could spend hours pulling his article apart, but to illustrate the point, let’s look at two paragraph:

“While the BCCT parable [i.e., the notion that the law societies are bound by the 2001 TWU decision] is a stretch, it cannot be ignored. However, Supreme Court jurisprudence has significantly progressed over the past 14 years. In the 2013 case of Whatcott, the Court unanimously departed from the “hate the sin, love the sinner” rationale adopted by TWU in 2001. It embraced Justice L’Heureux-Dubé’s dissent in BCCT: an institution cannot condemn a practice central to the identity of a protected and vulnerable minority without discriminating against its members.

Further, the 2012 Supreme Court decision in Doré imposes an obligation on law societies to apply the Charter of Rights and Freedoms and human rights codes when they make decisions. This means that private religious organizations can adopt membership rules that reflect their beliefs, but the government and other organizations operating in the public interest may not approve such rules if they are discriminatory. The College of Teachers was under no such express obligation in 2001. As such, TWU can have a law school, but law societies must operate in the public interest and cannot rubber-stamp a discriminatory pathway to their profession. Freedom of religious belief does not entitle the believer to infringe upon the liberties of others. In practicality, a private institution must adapt its policies and practices if it wants to be accredited by a body operating in the public interest and that must uphold Canadian law and public policy.”

First, to suggest that the application of the BCCT decision to the LSUC’s decision “is a stretch” can only be characterized as intellectually dishonest in the extreme – that decision addresses the question of whether a professional regulatory body can refuse to accredit the graduates of TWU based on TWU’s community covenant. That’s directly on point both on the legal analysis and (helpfully, since its the same university) the facts. It’s one thing to suggest that the law has changed, but if it hasn’t the 2001 TWU decision is determinative.

Second, Judson misrepresent the conclusion of the SCC in Whatcott (and, it should be said, Doré, but more on that below) in support of the proposition that the law has changed. The Court in Whatcott did NOT embrace L’Hereux Dube’s dissent from TWU, rather it embraced her summary of the law on a unique point on which she agreed with the majority. From Whatcott:

“L’Heureux-Dubé J. in Trinity Western University v. British Columbia College of Teachers, 2001 SCC 31, [2001] 1 S.C.R. 772, in dissent (though not on this point), emphasized this linkage…” [emphasis added]

I’m not sure how you can read that sentence and conclude, in good faith, that the SCC embraced L’Heureux-Dube’s dissent over the majority opinion in TWU. The SCC embraced one element of L’Heureux-Dube’s dissent on a discrete point, on which point she agreed with the  (a point the court in Whatcott emphasized). In TWU, the majority of the SCC clearly accepted L’Heureux Dube’s contention that the TWU covenant was discriminatory – the point at issue in Whatcott – and no one seriously suggests otherwise. However, the crux of the issue in TWU was that the discriminatory behaviour was LEGAL under the BC Human Rights Code (and, I note, would be legal under the Ontario Human Rights Code) and was not prohibited under the Charter (since TWU is a private institution). Nothing in Whatcott disturbs that conclusion.

(As an aside, L’Heureux Dube earned her reputation as the “Great Dissenter” for always being the one dissenting voice in countless 8-1  decisions.  For those who haven’t read her dissenting opinions, it’s often pretty clear why she was a lone dissenter – her views on the proper interpretation of the Charter were typically too batshit crazy for the rest of the Court.  Consider, she was the only prominent Canadian legal personality willing to suggest that the now-deceased Quebec Charter of Values was not blatantly unconstitutional – a position even the PQ wasn’t sure about.  It stretches the imagination to believe that the SCC would prefer the dissenting opinion of L’Heureux Dube over the opinion supported by 8 of her colleagues.)

But what about the Doré case?  Judson believes that Dore “imposes an obligation on law societies to apply the Charter of Rights and Freedoms and human rights codes when they make decisions... the College of Teachers was under no such express obligation in 2001″.  This is a statement he can make on if (a) he has read neither Doré nor the 2001 TWU decision or (b) he is misrepresenting what both those cases say.

The notion that professional regulatory bodies must take into account charter values didn’t original in Dore, it originated in TWU.  Look, it even says so in the damned Doré decision:

“Other cases, and particularly recently, have instead applied an administrative law/judicial review analysis in assessing whether the decision-maker took sufficient account of Charter values. This approach is seen in Baker; Trinity Western University v. British Columbia College of Teachers, 2001 SCC 31, [2001] 1 S.C.R. 772; Chamberlain; Ahani v. Canada (Minister of Citizenship and Immigration), 2002 SCC 2, [2002] 1 S.C.R. 72; Pinet; Lake v. Canada (Minister of Justice), 2008 SCC 23, [2008] 1 S.C.R. 761; Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44; Criminal Lawyers’ Association; and Németh v. Canada (Justice), 2010 SCC 56, [2010] 3 S.C.R. 281.” [emphasis added] 

Note to young lawyers/law students, this is why you have to read cases (including references) before you cite them. You can’t just read the headnotes, or someone elses summary. Details kinda matter.

In TWU, the majority of the Court, in finding for TWU, held that:

“While the BCCT was not directly applying either the Charter or the province’s human rights legislation when making its decision, it was entitled to look to these instruments to determine whether it would be in the public interest to allow public school teachers to be trained at TWU.

At the same time, however, the BCCT is also required to consider issues of religious freedom.  Section 15 of the Charter protects equally against “discrimination based on  . . .  religion”.  Similarly, s. 2(a) of the Charter guarantees that “[e]veryone has the following fundamental freedoms:  . . .  freedom of conscience and religion”.  British Columbia’s human rights legislation accommodates religious freedoms by allowing religious institutions to discriminate in their admissions policies on the basis of religion.

….

The diversity of Canadian society is partly reflected in the multiple religious organizations that mark the societal landscape and this diversity of views should be respected.  The BCCT did not weigh the various rights involved in its assessment of the alleged discriminatory practices of TWU by not taking into account the impact of its decision on the right to freedom of religion of the members of TWU.  Accordingly, this Court must.”

In the result, the SCC held, contra Judson, that the BCCT was obliged to take into account Charter values in accrediting universities – but that they had to balance the section 15 rights against discrimination afforded to gay and lesbians against the equally valid sections 2(a) and 15 rights afforded to religious beliefs and religious believers. In TWU, the majority concluded that in refusing to accredit TWU students, the BCCT failed to adequately balance those charter values.

In point of fact, neither of the case cited by Judson say anything remotely resembling the claims he makes.  In Whatcott the SCC did not adopt L’Heureux Dube’s dissenting opinion from TWU, it cited it on a discrete point of law on which L’Heureux Dube agreed with the majority opinion.     Nor did Dore impose a duty on law societies to take into account charter values, which duty was not reflected in the 2001 TWU decision.  On the contrary, Dore followed the 2001 TWU decision in demanding that professional regulatory bodies take into account charter values in making their decisions.  Far from helping opponents of TWU, the Dore decision stands for the proposition that the law societies are bound by the same consideration identified by the SCC in the 2001 TWU decision in favour of TWU.

Now, maybe I’m picking on Judson.  After all, he’s only a law student (albeit a high profile one) and he’s not the only one making these claims.  The exact same arguments have been made by lawyers, benchers and academics across Canada.  It is, frankly, mind-numbing that so many otherwise intelligent people could be making arguments that are so self-evidently incorrect and misleading.

I’ve got three, related theories to explain why the TWU’s opponents continue to make these self-evidently stupid arguments.  One is that the people who make these arguments are just morons.  True, there’s no shortage of stupid people in the world willing to advance stupid positions.  Still, I’m inclined to discount this possibility for most of the people making this claim, given that most lawyers and law students are reasonably intelligent.

The second possibility, is the people making these arguments know that they’re wrong and are making them anyways to try to find some legal justification for blackballing TWU.  I’d hate to think that this is the explanation, since it would imply that a great many lawyers in this country are willing to put their own personal views ahead of the law.  Again,  I’m inclined to discount this possibility.

The third possibility, and I think the most likely one, is that none of the people making these arguments have actually done any thinking for themselves.  One person made these arguments at some point, no doubt it made its way around like-minded thinkers and given that absence of other compelling arguments for refusing to accredit TWU, TWU’s opponents have glommed on to them without doing much due diligence or applying much in the way of critical thinking (like reading the fucking cases they’re citing).

Whatever the reason for these silly arguments, the fact that TWU’s opponents would resort to such sleazy claims to make their case makes me that much less willing to agree with them.

4 thoughts on “If the case against TWU law school is so strong, why do its opponents have to mistate what the law actually is?”

  1. Sure, some anti-TWU folks might exaggerate the strength of their case, but don’t you think they have at least a good shot? By the time any of this makes it to the SCC it will be almost 2020. And didn’t Doré indicate that admin bodies deciding on Charter issues within their expertise are likely to be judged on a Standard of Reasonableness?

    I don’t think the anti-TWU case is necessarily as strong as some might make it out to be, but aren’t you being as bad as some anti-TWU advocates when you say they have no case at all?

    Don’t you think high profile lawyers like Joe Aravez and Clayton Ruby would have thought through the law, at least A little bit, before they made legal arguments against TWU?

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    1. Bruce,

      I think the concern isn’t that they exaggerate the strength of their case, it’s that in making their case they blatantly mischaracterize the reasoning in the cases they cite. Presumably, if their case had any merit, they wouldn’t need to do that.

      As to the appropriate standard of review, recall that Dore was a disciplinary case, so the different standard of review may arise from that different context. Moreover, even if the courts were to hold the law societies to a reasonableness standard (and, fair, lawyers might be better situated to balance competing rights than teachers), it’s not clear that that get’s them anywhere. It’s worth noting that in TWU, the court though that the position of the BCCT that TWU’s covenant was against the public interest, despite being explicitly permitted under BC’s human rights code , was unreasonable. Since Ontario’s Human rights code is similar to BC’s, I don’t see how changing the standard of review gets the law society anywhere in light of the Court’s earlier ruling. Changing the standard of review to reasonableness doesn’t get the LSUC anywhere unless they override the findings of the SCC in TWU that it was not against the public interest to accredit TWU students and that there was no evidence that TWU students would discriminate against gays and lesbians (of which, I note, there is still no evidence).

      I can’t speak to Joe Arvay, but have you ever met Clay Ruby? There’s no doubt he’s a smart lawyer (though he’s not as smart as he thinks he is). He’s also a publicity hound and has a history of taking on weak cases as a way of getting his name in the paper (consider, for example, the constitutional challenge of Ontario’s pitbull law: http://www.newswire.ca/en/story/457653/clayton-ruby-seeks-leave-to-appeal-to-the-supreme-court-of-canada-regarding-the-ontario-pit-bull-ban). Fighting TWU is right up his alley – doesn’t mean that his challenge has any merit.

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      1. Do you think Nova Scotia’s decision has a better chance of being upheld because (a) the rejection was solely within the discriminatory provision in the law school context and (b) nova Scotia’s hr legislation doesn’t have similar exemptions for religion?

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      2. It’s interesting. On the one hand it’s an even weaker case, because they’re conceding that there’s no reason why TWU graduates can’t be good lawyers, except for the policies of their school (over which they have no control and with which they might not actually agree) On the other hand you’re right they’re likely not bound by the SCC decision on the public interest point (although it is worth noting that the NS human rights code does allow discrimination on the part of religious organizations – albeit a borrower exception that in Ontario or BC – so I don’t think it’s obvious that there’s a public interest in blackballing TWU. Moreover, the balance of the 2001 TWU dealing with how to balance the competing charter interest strongly favoured TWU.

        (As an aside are the exemptions in the NS HRA unconstitutionally narrow? Arguably, broad exceptions from provincial human rights codes for religious organizations are necessary to protect religious freedoms.)

        Mind you, how many TWU graduates are going to work in NS?

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