Dividing the bar

It was nine days before Christmas in 2013 when the Federation of Law Societies announced that it had granted preliminary approval to the proposed law school at Trinity Western University. Two days later, the British Columbia government gave its required consent to the program at the faith-based university located in Langley.

Dividing the bar
It was nine days before Christmas in 2013 when the Federation of Law Societies announced that it had granted preliminary approval to the proposed law school at Trinity Western University. Two days later, the British Columbia government gave its required consent to the program at the faith-based university located in Langley.

“That was a nice Christmas present,” recalls Earl Phillips, the current executive director of its school of law. At the time of the announcements, Phillips was planning to step down from the full-time practice of law at McCarthy Tétrault LLP in Vancouver, where he had been a partner for nearly three decades. Within a few weeks though, law societies in three provinces, including B.C., had announced plans to review the accreditation request by the university and Phillips shifted focus. “I was newly retired. But I realized Trinity Western needed some help,” he says.

The university had hoped to start in the fall of 2015 with a class of 60 students and a curriculum similar in most respects to that of any other law school in the country, yet with an evangelical Christian perspective. More than three years since it received preliminary approval from the national legal organization and the B.C. government, the fate of the proposed law school remains up in the air and the debate is almost certainly headed to the Supreme Court of Canada.

The debate over accreditation has been heated among benchers of the law societies in B.C., Ontario and Nova Scotia and sparked litigation in all three provinces. The Ontario Court of Appeal upheld a lower court decision and that of its law society not to accredit Trinity Western. The B.C. Court of Appeal concluded that its law society infringed freedom of religion rights in voting not to accredit the school, which followed a very rare referendum by its members. And in Nova Scotia, a resolution not to accredit Trinity Western was ruled invalid on procedural grounds by its Court of Appeal.

Even the legal analysis differed slightly in each province. B.C. focused on a balance of freedom of religion and equality rights. Ontario suggested the university was invoking religion to try to compel the law society to grant a “benefit” in the form of accreditation. The Nova Scotia courts did not address Charter issues because of procedural flaws in the action taken by the provincial barristers’ society.

The disagreement over whether to grant approval extended to the proper role of regulators of the law profession over law school in Canada. As well, there were numerous interveners on both sides of the question, dozens of submissions to law societies and an unusual situation where the B.C. Civil Liberties Association and Canadian Civil Liberties Association were on opposite sides of an issue.

In a submission to the Federation of Law Societies in January 2013, concerns raised about the school by the Canadian Council of Law Deans were criticized by the president of the B.C. civil liberties group. The federation was urged to reject the “anti-freedom-of-religion precepts” of the law deans, wrote Lindsay Lyster. In Ontario, meanwhile, the CCLA was granted intervener status and argued in favour of the decision of the law society on the basis that a regulator should not condone discriminatory conduct.

At the centre of this dispute is the university’s Community Covenant, a five-page document that “apart from a few items in it would be the desire of every institution of advanced learning in this country,” said Trinity Western’s president Bob Kuhn, in addressing law society benchers in Ontario in April 2014. “In fact, we have been asked how do you avoid some of the things that have occurred on the campuses of this country where under-aged rape is seemingly acceptable, where discipline and consequences are immaterial in many cases,” said Kuhn, who is also a lawyer.

Most controversial in the covenant is the requirement to abstain from certain actions, including anything that violates the sanctity of marriage between a man and a woman.

This section of the covenant was described as “deeply discriminatory” to the gay and lesbian community, by the Ontario Court of Appeal in its decision on Trinity Western last June. The Nova Scotia Barristers’ Society was initially willing to accredit the university’s law school if it amended the covenant and that option has been raised by others as a potential compromise.

For those at Trinity Western, though, it is not a viable option. “This is not just a Code where we can parse these words or find a way around it,” says Phillips, who was part of an advisory council at Trinity Western before he was appointed the law school’s executive director in September 2014. “This is built more along the line of a biblical covenant. We believe that you cannot separate statements of belief with how you live your life. This is based on your call as a Christian,” says Phillips. He also stresses that the covenant requires individuals to be respectful of others.

Phillips, who practised labour and employment law at McCarthy Tétrault LLP and is a former regional managing partner of the firm, says he understands some of the criticism. “There is a concern that this looks like a step back. Lesbian and gay communities have suffered hugely from discrimination. It took a long time to acquire rights they were entitled to receive,” he states. At the same time, though, Phillips does not believe that the 60 spots that Trinity Western is planning for its first-year class (with a projected total enrolment of 170 people) would have any substantive impact on a gay or lesbian person seeking to attend a law school in Canada — while at the same time respecting freedom of religion rights. He also points to a section of the Civil Marriage Act, enacted by the federal government in 2005, as supporting the university’s right to have a law school with this covenant. The section states that no person or organization shall be subject to a sanction or denied a benefit “under any law of the Parliament of Canada solely by reason” of a religious belief that marriage should only be the union of a man and a woman.

“What freedom of religion consists of is at the heart of this,” says Geoffrey Cowper, lead counsel for the Evangelical Fellowship of Canada and Christian Higher Education Canada, which were interveners in the B.C. litigation. Cowper, who heads the litigation and dispute resolution group at Fasken Martineau LLP, questions whether critics are genuinely concerned about the proposed law school’s admissions policy. “Certain faith traditions are not acceptable to some parts of Canadian society now,” he says.

The path toward accreditation was a lengthy one even before provincial law societies got involved. Trinity Western submitted its law school proposal to the Federation of Law Societies in June 2012, a couple of years after new national standards were adopted as part of the accreditation process.

The federation struck a special advisory committee whose members included former heads of five provincial law societies. A legal opinion was also sought from John Laskin, a senior lawyer at Torys LLP in Toronto, on various issues including whether a 2001 decision by the Supreme Court of Canada that found that the B.C. College of Teachers wrongly refused to accredit Trinity Western’s teacher’s program was dispositive of the law school question (see “Trinity Western v. B.C. College of Teachers” on page 29).

Since preliminary approval was granted in December 2013, five provinces deferred to the decision of the federation and accredited Trinity Western. The Law Society of Newfoundland and Labrador voted in June 2014 to hold the matter in abeyance, pending the various court actions. In B.C., Ontario and Nova Scotia, the law societies decided to address the issue directly.

However, it was not a co-ordinated response, says Paul Jonathan Saguil, co-counsel for one of the intervener groups in Ontario opposed to Trinity Western’s accreditation. “Our law societies were not prepared for this type of discussion. They did not align across the country. It is not like they were playing from the same playbook,” says Saguil, chair of the Ontario Bar Association’s equality committee. “That is why we ended up in litigation,” he adds.

As well, the rationale for Trinity Western’s law school has changed slightly, says Saguil. The university’s proposal to the federation stressed the need for a law school with graduates who would service non-urban communities in B.C. Now, the debate is much more focused on whether law societies would be violating freedom of religion rights in the Charter if the law school is not accredited, he says.

Saguil agrees that Trinity Western has “played by all the rules” in its quest to open an accredited law school. “I don’t begrudge people on the other side,” he says. But he expresses concern about the broader impact to the profession if a law school that excludes gay and lesbian students is approved. “What does this say about our push for diversity and inclusion? What message are we sending to law students?” Saguil asks.

These concerns are echoed by Bill Flanagan, dean of law at Queen’s University in Kingston, Ont. He was the head of the Council of Canadian Law Deans when a letter was sent to the federation in the fall of 2012 about Trinity Western’s application. The letter stated that discrimination on the basis of sexual orientation was contrary to the core values of all Canadian law schools (this submission was the one criticized later by the B.C. Civil Liberties Association).

Flanagan defends the actions of the law deans and the concerns that were raised. “I think it kick-started a very vigorous discussion,” he says. “We wanted law societies to take the issue very seriously. The objection had nothing to do with it being faith based. The concern was about discrimination,” says Flanagan.

Law societies in B.C., Ontario and Nova Scotia all held votes in April 2014 on whether to accredit Trinity Western. The first to act was B.C., which initially voted in favour of accreditation with many benchers stating that they felt bound by the 2001 Supreme Court ruling about Trinity Western’s teacher’s program.

Angered by the benchers’ vote, some lawyers in the province invoked a rule of the Law Society that resulted in a special general meeting of all members. Ultimately, a referendum was held by mail-in ballot and nearly three-quarters of those who cast ballots voted against accreditation. The day after the results were announced, the benchers reversed their earlier approval of Trinity Western.

The university sought judicial review and were successful when B.C. Supreme Court Chief Justice Christopher Hinkson found that benchers improperly fettered their discretion and did not engage in any balancing of Charter interests before the second vote. The B.C. Court of Appeal disagreed with Hinkson on his administrative law findings about the process, but it ruled in favour of Trinity Western on Charter grounds. “This case demonstrates that a well-intentioned majority acting in the name of tolerance and liberalism, can, if unchecked, impose its views on the minority in a manner that is in itself intolerant and illiberal,” wrote a five-judge panel of the court, headed by its chief justice, Robert Bauman.

While a referendum is permitted under its rules and occurred in B.C. on two other occasions, it was not the proper way to address Trinity Western’s application, says Cowper. “I am not suggesting that individual members did not try to do their best,” he explains, but he adds that benchers have a statutory obligation “to get it right” when carrying out the responsibilities of the Law Society. “A reference to the general membership runs the risk that it is a purely political decision,” says Cowper.

Benchers in Ontario debated the Trinity Western issue on two separate days before voting 28-21 against accreditation. Several of them made lengthy oral submissions to try to win over the votes of colleagues.

“It was extremely heated and emotional at times,” recalls Eugene Meehan, a partner at Supreme Advocacy LLP in Ottawa. Meehan represented Trinity Western in its accreditation request before the Law Society in Ontario. He was also among the proponents of the university who wrote letters of support to the Federation of Law Societies.

While Trinity Western was permitted to address those at the meeting and provide written submissions, the law society also received a legal opinion that the public comments of the benchers on the issue were sufficient to represent the “reasons” for the decision. This process was found to be reasonable by the reviewing courts, but Meehan remains troubled by some aspects of what happened at the law society. “When people are allowed to say things that are irrelevant and toxic, then the decision is suspect,” says Meehan.

The day after the vote in Ontario, the barristers’ society in Nova Scotia narrowly passed a resolution to approve Trinity Western on the condition that it amend the covenant or not require students to sign it. Three months later, the barristers’ society amended its regulations to give it the power to refuse approval to a law school that “unlawfully discriminates” in its admissions policy. The province’s Court of Appeal found that this amendment was beyond the powers of the regulator, although it suggested that wording similar to that which is in place in Ontario might be acceptable.

The barristers’ society did not seek leave to appeal that decision. As well, it changed its regulations back to the original version, pending what happens at the Supreme Court of Canada.

The change in the regulation that suggested the barristers’ society could determine whether discrimination was unlawful was problematic, says Halifax lawyer Amy Sakalauskas. However, she says it deserves credit for trying to be transparent about its concerns with the covenant. “What Nova Scotia was trying to do was paint a path for accreditation. It was trying a middle ground approach,” says Sakalauskas, who was co-counsel for the Canadian Bar Association in the Nova Scotia litigation, which appeared as an intervener to oppose Trinity Western’s bid for accreditation.

Despite the outcome in court, she says the case has sparked widespread discussion about the issue in the province and not only within the legal community. “I think that has been a good thing.” While the law school that Trinity Western wants to establish would be relatively small, that should not be a reason to accredit the school unless it removes the discriminatory aspect of its covenant, says Sakalauskas. “You have to look at the principles rather than the size of the discrimination.”

For those at Trinity Western, though, it is the right to provide a legal education in a Christian context that they see as being the target of discrimination. “It is not a battle that we asked for,” says the law school’s executive director Earl Phillips. “But it is one we are left with, and on a principled basis we cannot run away from it.”

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