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Need for change inspires future lawyers

Ab Initio
|Written By Ted Flett
Need for change inspires future lawyers

I was recently struck by the slightly defiant social media activity of some fellow law school students. On Canada Day, a few expressed embarrassment at the country’s state of law making and governance rather than pride.

As I lazily scrolled through Facebook on Canada Day morning, I glanced at a collection of maple leaf images my friends used to festively replace their profile or cover pictures. My friend Amber Chisolm’s status popped up first on my news feed. A 2L going on 3L, Amber is equal parts advocate and eloquent. Her bold status surprised and impressed me. It read:

“Happy Canada Day . . . All I have to say is that I’m proud to have so many friends on Facebook who recognize that our country needs a lot of work to deserve their pride. Hoping sometime soon we can start working towards a Canada I can be proud of.”

It was brash yet appropriate given Chisolm’s steadfast activism. Since Canada Day, Amber has shared more with me. “I think that one of the things that causes the most dismay is Canadian apathy,” she says. “The apathy over legislation like Bill-C51, which gives the Canadian government extremely broad powers to arrest and imprison people who are potential threats, is troubling. Legislation like this forms a scary precedent by using safety as an excuse to silence dissenters, protesters, and political radicals.”

As future lawyers, expressions of dismay over the laws of the land such as Chisolm’s are not insignificant. Among the first lessons of law school is that the law is slow to change. Admittedly, we’re an impatient bunch, both the typical law student and our generation. So, it can be further demoralizing when the pace of evolution really crawls or worse yet, shifts into reverse.

And when the very set of rules within which a lawyer works raises an objection or offends, there lies a problem. Operating within a legal framework comprised of laws including some that are highly disagreeable is a tall order for an aspiring lawyer. While the law touches nearly all facets of society, it is likely easier to brush off antiquated laws or questionable governance when you’re not applying those very laws day to day.

I’ve wrestled with my own qualms about the profession this year and last year as law societies and my future peers across the country considered — and in some cases, reconsidered — the accreditation of Trinity Western University’s law school. TWU is a school that commits pernicious discrimination inconsistent with my definition of equality in Canada. That the school has won so many proponents among lawyers gives me pause for thought.

I am also discouraged by Prime Minister Stephen Harper’s decision not to participate in televised election debates in the fall. While party leaders are not mandated to attend the debates by statute or common law, the broadcast event helps Canadians to cast informed ballots. The prime minister’s appalling decision shows an utter disregard for voters and offends me and many other law students. How can I have confidence in the decisions of Parliament following such neglect by the country’s highest politician?

Chisolm is also exhausted by New Brunswick Minister of Health Victor Boudreau’s mixed messaging over the issue of healthcare delivery for trans people in the province.

“While he told trans groups months ago he would meet with them to discuss access and coverage, he clearly doesn’t intend to actually listen to the people affected by current policies given earlier comments he made suggesting trans health care is not a priority; that it is a waste of money because it isn’t a medical necessity from his point of view,” she says.

“He also cited concerns for doctors who might wish to conscientiously object to treating trans patients, which doesn’t seem in step with Canadian Charter values, nor with practising medicine compassionately and holistically.”

But then this summer has also delivered an historic and socially progressive legal decision, albeit in another jurisdiction. The June 26 decision by the Supreme Court of the United States in Obergefell v. Hodges, legalizing same-sex marriage across the country, was epic. I am elated by the global message sent by a world superpower that it’s OK to be gay. Decisions like this fuel my optimism for change in the advancement of human rights.

And, despite the dismay of law students over unreasonable laws that we will apply in practice and the conduct of politicians who make them, there is a silver lining to all this shame. “I came to law school thinking I wanted a stable job in family law or government, something that I could live comfortably in but also have time for activism and helping people on the ground,” Chisolm says.

“I’m starting to feel that, to me, there is so much that can be improved that, instead, I want to dedicate myself to it as fully as I can. I’m very interested in working with human rights organizations or government commissions. I always knew I wanted to be working to make Canada a friendlier place to all kinds of people, but I realize now that it’s going to be a full-time job.”

  • Upholder of real, not fake, tolerance

    Bradley Wright
    Btw, as to the argument that TWU should be allowed to discriminate against LGBT students because there are other law schools they can go to, does that mean that Southern blacks (as they were then known) were not discriminated against by white-only restaurants because there were other restaurants they could go to?

    Allowing TWU's covenant would be a regressive step that would be exploited by any number of narrowly-oriented groups. It might not be possible to shut down TWU`s law school but it would be a shame if it got accredited.

    Bravo to the majority of the benchers who voted against accreditation. Bravo to the majority of the minority of benchers who expressed their abhorrence for the covenant even while feeling bound by precedent. And Bravo to the Divisional Court.
  • Lawyer

    Bradley Wright
    Of course, that should have read "I simply choose NOT to have it endorsed by a Charter-bound Public Regulatory Body."
  • Lawyer

    Bradley Wright
    Furthermore, you say that gays can attend any other law school. Sure, for now anyway. But accrediting TWU's bigotry in the guise of religious freedom could, over time, evolve into the accreditation of many more bigotries, even to the point where open and tolerant (and more Christian than TWU is being) schools became increasingly hard to find.

    I disagree with the bigotry behind the covenant, but I tolerate it insofar as it applies to a Private Institution. I simply choose to have it endorsed by a Charter-bound Public Regulatory Body. The TWU law students can choose to study law there for the sake of learning about the law and they can then apply their learning to any number of endeavours, but they should not expect to have their degree accredited for the purposes of a call to the bar by a Charter-bound authority.
  • Lawyer

    Bradley Wright
    Bob, Are you aware that the TWU students must also agree in writing to report any classmates who stray from the covenant to the administration? Does that not give you pause that the administration would try to make their students spy on each other? Is that Christian?

    Your argument about code of conduct at other law schools pale into virtual nothingness compared to that. In any event, even if we accept your argument on that, the simple answer is that two wrongs do not make a right.

    Further, you should not be using the Title feature to record in bright red letters your flawed opinion on the arguments of others.

    What if TWU's covenant prevented non-whites from attending? Would we even be having this discussion? What is it about a genetic predisposition to homosexuality that turns otherwise decent and coherent people into using pretzel logic to justify the unjustifiable?
  • Lawyer

    Bradley Wright
    Bob, You cannot slice and dice the religious freedoms. If TWU can gain accreditation from a body subject to the Charter on the basis of religious freedom, then, as I have said before, there are no other freedoms because religious freedom can be used to trump any other freedoms. If TWU's discrimination is valid, then any discrimination can be valid; you cannot parse them apart. You would have to accredit law schools for insisting that only students who sign a covenant to engage in polygamous marriages may attend, and on and on. Nothing stops TWU from promoting its beliefs. They re free to make it clear that students who do not share their beliefs in every detail would likely find the environment there rather uncomfortable. They are free to teach anything they want. But they should not expect to receive accreditation from a public regulatory body duty bound to uphold the Charter in its entirety.
  • Relevance of OHRC

    Bob Smith
    Bradly,

    Let me ask you. Have you ever read the codes of student conduct at places like UofT, Queens, York, Ottawa, Windsor? They all impose limitations on, otherwise legal, student expression. If those limitations were imposed directly by the law society, it would violate section 2(b) of the Charter. That's exactly analogous to the conduct of TWU. So why has the LSUC not revoked the accreditation of the other Ontario law schools? If your view is that all law schools must conduct themselves as if they are governed by the Charter in order to be accredited, I'd suggest that no law school in Canada would qualify.
  • Relevance of OHRC

    Bob Smith
    [quote name="Bradley Wright"]Karen, there is no exemption under any laws for such organizations as law societies. The LSUC acted in accordance with its obligations under the Charter to which it is subject. [/quote]

    The existence of such exsemptions in Ontario, however, are relevant to determining whether the law society has the stauttory authority to sanction a law school for behaviour that is expressly sanctioned by the legislature of Ontario. It is untenable to suggest that in enacting the Law Society Act, the Legislaure intended to give the LSUC the authority to sanction law goods for conduct that the legislature has expressly protected. Particularly where, as in the case of section 18 of the OHRS, such sanction is neccesitated by the Charter.
  • TWU is not subject to the Charter,

    Bob Smith
    I'd also not that your argument is premised on the presumption that TWU's discriminatory conduct is inconsistent with the Charter - that is highly debatable.

    The right of religious organizations to define their own community (and exclude others from that communuity) is clearly protected by section 2(a). Indeed, I'd suggest to you that section 41 of the BC HRC and section 18 of the OHRC are neccesary to ensure their constitutional validity.

    The LSUC's decision fails to give effect to that right. It does not protect any legitimate interst of gay or lesbian students (if anything ite denies those gay or lesiban students who are also conservative christins the opportunity to attend a law school of their choosing - one can be a gay christian conservative, after all) while undermining the religious freedoms of conservative christians. There's no balance of rights here.
  • TWU is not subject to the Charter,

    Bob Smith
    Brad,

    TWU doesn't "force:, in any meaningful sense of the word, anyone to comply with its beliefs. People can choose to comply with its beliefs and attend TWU, or not and choose to attend any one of the many other law schools in Canada.


    The Law society is subject to the charter. But TWU is NOT a proxy for the LSUC, it's simply a school who produces competent law students and its accreditation should be judged solely on that basis. Accrediting TWU doesn't discriminate against gays or lesbians, nor does it constitute an endorsement of discrimination against gays or lesbians, its simply an acknowledgement that TWU students are (potentially) fit to practice law in Ontario.

    Failing to do so DOES discriminate against TWU and its students based on their religious beliefs.
  • Lawyer

    Bradley Wright
    Karen, there is no exemption under any laws for such organizations as law societies. The LSUC acted in accordance with its obligations under the Charter to which it is subject. As for your contention that law societies should not exist or have the power to say who gets to practice law, then the alternative is a free-for-all with virtually no standards. Would you advocate that for medicine? Some people do, but I want my doctors to have met high standards before poking around in me and not have obtained their "credentials" from profit-motivated universities anywhere in the world without having those credentials examined by a public-spirited regulatory body. Same for law (minus the poking around in me).
  • Lawyer

    Bradley Wright
    Bob, asking to be accredited most definitely does entail forcing TWU's "beliefs on others". TWU makes no bones about it. They want to force anyone who finds Langley the most convenience place to attend law school but born with same sex preferences to sign a covenant effectively denying who they are. You concede that the LS is subject to the Charter. Then, how can the LS ignore the law to which it is subject? TWU is free to have its private school because the law does not prevent them from having one and, apparently, BC provincial law allows them to discriminate. But the LS is prevented by law from discriminating. What is the point of that law if the LS could discriminate by proxy? Especially on the basis of such a highly subjective altar as religious interpretation? The issue is not whether the graduates are fit to practise; the issue is whether TWU is fit for accreditation by a body that is legally-bound not to discriminate, either directly or by proxy.
  • Litigation Director, Canadian Constitution Foundation

    Karen Selick
    As a matter of fact, there is an exemption in the BC Human Rights Code for precisely such organizations at TWU. See s. 41. But putting that aside, I don't even agree that human rights codes should exist. They are a violation of freedom of association, which should also include the right not to be forced to associate. I've written on this subject in the pages of Canadian Lawyer and the National Post in years gone by. See, for instance: http://www.karenselick.com/NP071025.html
    Another issue here is whether the LSUC should even exist or have the power to say who gets to practice law. I would vote no, as I have written here: http://www.huffingtonpost.ca/karen-selick/trinity-western-law-school_b_7227036.html
  • Bradley Wright's Arguments Fail on many levels

    Bob Smith
    Karen hits the nail on the head.

    Whatever we might think of TWU's discriminatory policies, they are legal (indeed, sanctioned by) the human rights laws of both Ontario and BC. TWU is not subject to the charter. The LSUC is.

    It is perfectly fine to want to change BC law to prohibit TWU's practices (although I suspect doing so would run afould of section 2 of the Charter), but that is simply not the mandate of the LSUC. The LSUC's was not delegated a mandate to resolve all the perceived injustices in the world, it's mandate is to regulate the legal profession and protect the public. Unless there is compelling reason for thinking that TWU graduates are not fit to practice law in Ontario (which point the LSUC has conceded) it's simply not proper for the LSUC to refuse to accredit TWU.
  • Bradley Wright's Arguments Fail on many levels

    Bob Smith
    First, asking to be accredited does not not entail forcing TWU's "beliefs on others". Ironically, this argument is the mirror image of the argument made by opponents of same sex marriage who argued that allowing same sex marriage "forces" acceptance of same sex-marriage on others. If you accept the truth of Bradley Wright's proposition, than you vindicate the claim made by opponents of same sex marraige - I think they're both wrong.

    Nor does it entail the acceptance or endorsement of those beliefs by the LSUC. The LSUC is a regulatory body, the fact that it may accredit a university or license a law school graduate doesn't constitute the acceptance or endorcement of their views or opintions. Moreover, this is a dangerous belief. Is is acceptable for a ergulatory body to refuse to accredit groups or individuals whose views they disagree with? Is that really where we, as lawyers, want to be?
  • Lawyer

    Bradley Wright
    Karen, I should have said Charter or applicable provincial human rights codes (TWU would be subject to the BC HR Code). In any event, the Law Society is not discriminating against Christians or any sect of them. Adherents are free to believe whatever they want (that is what freedom of religion really means); they just cannot force those beliefs on others when the forcing contravenes human rights. As you yourself point out, the LS is subject to the Charter (and the Ontario HR Code). TWU asked the LS to endorse a discrimination that is prohibited by both the Charter and the Ont HR Code to both of which the LS is subject. That is something the LS cannot do and should not do, unless they want to be exposed as weathervane hypocrites. I also take issue with the ludicrous notion that those who stand opposed to bigotry are somehow thereby bigots. To TWU, I say: Believe what you want privately, but do not expect to be endorsed by a public body that has a broader mandate.
  • Litigation Director, Canadian Constitution Foundation

    Karen Selick
    I must take issue with Bradley Wright. There was no "blatant disregard for Charter rights" by TWU, because TWU is not the government and is not bound by the Charter. Instead, it was the LSUC that blatantly disregarded the Charter right of evangelical Christians to live according to their (in my view, absurd) religion. The LSUC is an entity empowered by the state and is therefore governed by the Charter. It is blatantly discriminating against Christians precisely on account of their religious beliefs. How can you not get this?
  • Lawyer

    Bradley Wright
    Karen, you say, "Evangelical Christians, if not permitted to study law in their own community, will still study law elsewhere and gain admission to the bar. Or do you propose a barrier to entry based on ideological conformity to your own views?" The point is that TWU is the one erecting the barrier based on a failure to conform with their views. How nice that evangelical students can attend any law school they wish. That's because no other law school discriminates. What if you are a gay person in Langley, BC who would like to attend TWU law school in order to live at home and save thousands of dollars a year? Shouldn't gay students have the same right to attend any law school they wish without running afoul of a discriminatory policy? Why should TWU be the only law school allowed to discriminate? Actually, being private, they can; they just should not expect to be accredited by law societies who, being public, should not be endorsing blatant nose-thumbing at the Charter.
  • Lawyer

    Bradley Wright
    I usually agree with Karen Sellick, but not with her take on Convocation's TWU decision. If you read the transcript or watch the archived webcast, you will see that the benchers were alive to all the aspects of the issue, and gave thoughtful consideration to all sides of the debate. Yes, the vote in Convocation was 28 to 22 (seemingly close), but many, if not most, of those who voted among the 22 expressed or nodded their abhorrence of TWU's policy but felt bound by precedent. Those who spoke against accreditation felt, properly, that the Law Society had no business giving an imprimatur to a blatant disregard for Charter rights, and that if precedent said otherwise, then precedent should change. Those who support TWU should remember their beliefs that God created mankind in his image and loves all his children. It is not for the supporters of TWU to decide not to love (which means accept) certain of their fellow God-created siblings. Such a stance is decidedly unChristian.
  • Lawyer

    Bradley Wright
    TWU is free to hold its discriminatory beliefs and to encourage others who hold the same beliefs to congregate, but TWU is not entitled to force those beliefs on others, or to force other entities such as law societies to accept (in effect, endorse) those beliefs when such acceptance or endorsement contravenes other legally and constitutionally protected rights. If religious freedom can be used to derogate from other rights, then there are no other rights because religion, as vital but as amorphous a group of philosophies as can be found, can be used by some members of differing religions to justify anything. Religious freedom is an important right and generally worthy of respect and protection, but not when it tramples other, often hard-won, rights. As the Divisional Court lucidly showed, Convocation's decision did not derogate from the religious freedom of the individual Evangelicals at TWU one iota. Rather, the decision stood up for the rights of all, including TWU's.
  • What you propose, fails on its own merits.

    N.A. Portuga
    Like the two previous comments, the vision of equality that you propose and so desperately want to work towards fails. You propose legislative and legal change within what you argue is a system that misunderstands and misapplies equality. YET, the vision of equality that you propose and the definition of discrimination that you adhere to is discriminating against others. Re-examine your position.
  • Should non-Communists be allowed to be lawyers?

    David G
    Karen Selick is right. Either we let everyone practice law who meets educational requirements and is competent, or we impose an ideological test for positions of influence, just as unfree societies have done (e.g., the Soviet Union). The logic of this position inexorably turns into a slippery slope, as the SCC has already noted in parallel circumstances: "Indeed, if TWU’s Community Standards could be sufficient in themselves to justify denying accreditation, it is difficult to see how the same logic would not result in the denial of accreditation to members of a particular church." 2001 SCC 31 at para. 33. It's at the very least a remarkable blind spot if lawyers and law students don't see this. At the worst, if they do see the logic of their position but are still willing to suppress the rights of a religious minority, it shows a lack of principle or perhaps cowardice, just as has exhibited by many "upstanding" lawyers in unfree societies. Better to be safe than to have scruples?
  • You can't pick and choose which rights you get to support

    Bob Smith
    TWU is a school that commits pernicious discrimination inconsistent with my definition of equality in Canada. That the school has won so many proponents among lawyers gives me pause for thought"

    Gee, a form of "pernicious discrimination" that is permitted under the human rights legislation of BC (and Ontario) and constitutionally protected under our Charter (per TWU 2001). You know why so many lawyer will defend TWU, it's because we believe in protecting the rights and interests of all Canadians (and all people) not just the ones we happen to agree with. Like Karen, I wouldn't be able (or interested) in attending TWU, but they shouldn't be sanctioned for doing something that is perfectly legally in BC (indeed, legally protected in BC). Personally, I think its a sad comment that too many Canadian lawyers don't seem to appreciate that rights are meaningless if you'll only protect those you agree with.
  • Litigation Director, Canadian Constitution Foundation

    Karen Selick
    Although I am one of the people TWU discriminates against (I'm an atheist who uses vulgar language and lives in a common-law relationship), I still think TWU should be accredited as a law school if it provides satisfactory legal training in torts, contracts, property law, etc. The fact that the school discriminates is irrelevant to whether its grads should be allowed to practice law. Evangelical Christians, if not permitted to study law in their own community, will still study law elsewhere and gain admission to the bar. Or do you propose a barrier to entry based on ideological conformity to your own views?

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