After two days of impassioned debate and weeks of contemplation, the benchers of the Law Society of Upper Canada have voted not to accredit Trinity Western University’s proposed law school because of its Christian community covenant, which bans gay sex.
In an opposite move to their counterparts at the Law Society of British Columbia, LSUC benchers voted 28-21 to reject TWU’s bid.
“The decision was a difficult one,” Treasurer Thomas Conway said after the vote. “Convocation's deliberation was, I believe, thorough and respectful of all views. The decision reflects the deeply divisive nature of some of the aspects of this application.”
TWU president and vice chancellor Bob Kuhn said the LSUC’s decision was disappointing but the unversity won’t be deterred from moving forward with its law school.
“We don't see the necessity of gaining unanimity of every province,” he said, adding today's decision will have a chilling effect on Evangelical Christians.
The debate was sometimes heated and most benchers had a say.
“I cannot accept that it’s in the public interest to accredit a law school that wants to control its students in the bedroom,” said Bencher Howard Goldblatt in a remark reminiscent to one made by former prime minister Pierre Trudeau in 1967.
During the debate, Bencher Julian Falconer said today’s decision would be a historic one.
“To my 13 year old son, who will not read these transcripts today, but [will] five or 10 years from now, I say to him, ‘I will do the right thing, I will vote against accrediting TWU,’” he said.
Despite assurances from Kuhn that the university is “a community of safety,” Falconer wanted to know what would happen to a student who discovers they are gay while at the university. The covenant urges students to make sure others follow it, he said, adding a student who discovers they are gay “becomes a target.”
Kuhn addressed Convocation at the beginning of today’s debate. He told benchers there is no legal or logical basis for them not to accredit the law school. In fact, if the LSUC goes against the decision of the Federation of the Law Societies of Canada and the Supreme Court of Canada’s ruling in Trinity Western University v. British Columbia College of Teachers, it will be holding itself out as a court of appeal, said Kuhn.
Kuhn said TWU is guided by Christian virtues such as love and respect for others. There is no evidence the school’s graduates will exhibit discriminatory attitudes, he said, adding if they reject TWU’s bid, benchers would be validating the “vitriolic” comments that have been directed at the university, including comparisons to apartheid, racism, and Muslim extremism.
For Bencher Malcolm Mercer, those analogies are in fact relevant since the issue at the heart of the accreditation debate is the exclusion of people for who they are. Mercer said in its reply to concerns expressed by LSUC benchers, TWU did not address the law society’s duty to uphold diversity and equal access to the law profession.
Some benchers, like Constance Backhouse, said they take issue with the idea that TWU can do what it wants because it is a private institution. Law schools are public institutions, Backhouse said, noting the school is also a registered charitable organization.
Other benchers said it was important the LSUC upholds the law set out by the Supreme Court of Canada in 2001 when it was faced with a similar question. Several benchers agreed TWU should be accredited even if its covenant is “personally abhorrent to us.”
“It seems to me that the Supreme Court has already balanced the rights of the LGBT community,” said Bencher Barbara Murchie. “We are bound by the law and there is no legal reason not to accredit.”
Whether the law society is bound by the top court’s decision in BCCT was a major part of the today’s debate. While some lawyers felt that precedent had to be applied, others said the law society as a regulator of a self-governing profession has discretion to decide the way it sees fit within the limits of the law.
To Bencher John Campion, TWU’s 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.”
Meanwhile in B.C., 1,177 lawyers have filed a request to the LSBC for a special general meeting to reconsider TWU’s accreditation.
Victoria lawyer Michael Mulligan, who initiated the requests for reconsideration, said only five per cent of LSBC members had to request the special meeting. The 1,177 requests are “far in excess of that,” he tells Legal Feeds. The LSBC is now obligated to hold the meeting within 60 days, Mulligan says, and all B.C. lawyers in good standing will be able to vote on a motion to reverse the accrediation of TWU’s law school.
Kuhn said he’s not concerned about the growing petition in B.C. to request a reconsideration. This is an emotional issue to some, but the decision has always been the same in B.C., he said.
Conway says to his knowledge, Ontario lawyers cannot request a special meeting to seek reconsideration of Convocation's decision.
Stay tuned, the Nova Scotia Barristers' Society takes this question on tomorrow.
Update 5:08 pm: Comments from TWU president Bob Kuhn.