The president of Trinity Western University thought he had overcome every hurdle to launch the first law program at a Christian-based school in Canada.
His proposal received preliminary approval from the Federation of Law Societies of Canada on Dec. 16, 2013, after it had been scrutinized by a “special advisory committee” established to consider the implications of a private faith-based law school. The committee concluded there was “no public interest reason” to deny future TWU graduates admission to the bar.
On Dec. 18, the British Columbia Ministry of Advanced Education gave the program its own go-ahead. Both the FLSC’s preliminary approval and provincial government approval are required for the opening of a new law school in Canada.
But now, future graduates of TWU’s law school risk having their law degrees refuted by provincial law societies, which would prevent them practising law in those regions.
“We were a bit surprised that there was such an outcry, especially after we played by the rules [and] received approval,” says Robert Kuhn, president of Langley, B.C.-based TWU.
The controversy around TWU’s law school boils down to a community covenant students are required to sign on admission. A clause in it calls for students to abstain from “sexual intimacy that violates the sacredness of marriage between a man and a woman.”
It goes on to indicate if a student fails to comply with the agreement, the university “reserves the right to discipline, dismiss, or refuse a student’s re-admission to the University.”
For many, the covenant is a form of discrimination against the LGBT community. In March last year, more than a thousand students from eight Canadian law schools signed letters protesting TWU’s proposal.
But Kuhn insists this isn’t just about the covenant itself, “but the religious freedom to hold it.”
Freedom of religion permits a community, such as that at TWU, to express that belief, he says, adding it also maintains the very distinctness that makes TWU a religious community.
Kuhn thought he had already won that argument.
“Then the heat gets turned up to actually change the rules and have us go through another series of approvals,” he says
Law societies from across the country have begun asking for feedback from the profession as to how they should recognize TWU law degrees. Nova Scotia, Ontario, and Saskatchewan have committed to open, full processes — even British Columbia has requested input from lawyers and the general public.
“It’s become a bit of an adversarial role where the law societies in their strong motivation to respond the public’s concerns have put us in a position — which may be inevitable — where we become the accused,” says Kuhn.
In 2012, Canadian law societies agreed the FLSC would review the curriculum from schools proposing law programs and decide whether or not to grant approval.
“Prior to that, each law society had its own view on how it would accept students from different law schools and eventually everyone decided it didn’t really make sense to do it that way,” says Robyn Crisanti, communications manager at the Law Society of British Columbia. “So, the federation’s committee was struck and it was decided then that they would do the legwork.”
In September 2013, the LSBC amended its own rules to reflect those changes at the FLSC level.
“Our rule did not reflect that process, so the rule was amended to reflect that new way of looking at how law schools are accredited,” she says.
At the same time, B.C.’s law society reserved the right to have final say on whether law degrees from new schools would be provincially recognized.
“The reason for that is that our Legal Profession Act in B.C. doesn’t allow us to simply hand over the responsibility to an outside body. So, basically what we do is take the federation’s assessment under advisement and then the benchers retain the final word, the final discretion to say whether the students from that school will be acceptable for our program,” explains Crisanti.
The changes to its rules were already coming down the pipeline, regardless of TWU’s application, she says.
“They’re unrelated, actually,” she says. “Prior to that rule being amended, it didn’t reflect the federation and, specifically, the Canadian common law approval committee.”
“They, I suggest, had to have had the only live application that existed in their minds at the time — if not by specific reference, at least by general reference,” Kuhn says.
This is not the first time the school’s covenant created uproar. In the 1990s, the British Columbia College of Teachers denied TWU’s application to deliver its own final year of teacher education. In 2001, the Supreme Court of Canada overturned that decision, indicating there wasn’t sufficient evidence to show training teachers at TWU would foster discrimination in the public school system. The court also indicated it was beyond the scope of BCCT’s mandate to reconcile the competing values of religious freedom and equality rights.
The SCC’s ruling on TWU’s education program can be applied to this case too, says Kuhn.
“The Supreme Court of Canada said, ‘You can’t do that — you can’t say the graduates of a program are going to be narrow-minded, bigoted, inappropriate, unethical. . . . You can’t say that until the evidence is there.”
Comparing TWU’s law program to its education program isn’t reasonable, according to Shad Turner, a third-year law student at the University of Alberta and vice president of OUTlaw, a campus LGBT advocacy group.
“I think it is difficult to conclude rationally that TWU’s teacher education program success should give reassurance that a legal education program would be similarly successful,” he says. “There is the very real concern that a school that imposes a discriminatory covenant upon its students will not be in the moral position to give law students comprehensive exposure to the rapidly evolving area of human rights law.”
This affects the ability to uphold the integrity required of the bar, he says.
“The vast majority of law school graduates will become members of a self-regulating profession who must abide by various codes of conduct,” he says. “As officers of the court, lawyers have a moral and professional responsibility to uphold the rule of law in Canada, with constitutionalized human rights laws at the pinnacle of Canada’s legal system.”
The OUTlaw group at the University of Alberta has written to the Law Society of Alberta to outline concerns it has with recognizing TWU law degrees.
“We’ve asked that the Law Society of Alberta start talking now about what they’re going to do with a Trinity Western grad who shows up at the door and asks for admission to be a member of the Law Society of Alberta,” Turner says.
Implementing a clear process will allow the law society to meet its objective to ensure members are fully competent to provide legal services in Alberta, “while at the same time staying within their statutory limits of what they can do to make that decision,” he says.
Kuhn admits “the jury’s out” on the state of his law school, but is optimistic about the outcome.
“All we’re really looking for is a fair shake. A fair shake from the media, a fair shake from the law societies, a fair shake from the public, and not to be swayed by what really is a one-sided voice,” Kuhn says. “We’re hoping — dare I say praying — that on careful reflection, people will recognize this is an important issue for religious freedom.”