LSUC ignored ‘binding precedent,’ argues TWU lawyer

The Law Society of Upper Canada’s benchers “ignored a binding precedent” last year when they denied accreditation to Trinity Western University’s proposed law school, the university argued at the Divisional Court this morning.

TWU is in court challenging the LSUC’s April 2014 decision not to accredit its law students.

In his opening statements, TWU’s counsel Robert Staley relied heavily on the Supreme Court’s 2001 decision in Trinity Western University v. British Columbia College of Teachers.

That ruling reversed the college of teachers’ decision not to accredit the university due to a requirement that students sign a Christian community covenant that asks students to refrain from “sexual intimacy that violates the sacredness of marriage between a man and a woman,” a stipulation critics argue is discriminatory against LGBTQ individuals.

“In my submission, that decision was binding on the benchers on April 24, 2014 but you wouldn’t know that” from the statements the majority of them made that day, Staley told the court.

Staley, who is partner at Bennett Jones LLP, drew parallels between the law society and the college of teachers, calling them “functionally indistinguishable.” The result in BCCT, which was to reverse the non-accreditation, should be replicated in this case, he said.

The court in BCCT found there was “no shred of evidence” that TWU’s graduates would act in a discriminatory manner while carrying out their work, Staley said, adding, “that should be a complete answer” to the issue in question in this case.

Staley also said people are entitled to hold “sincerely held beliefs” that may offend the majority. “Where the court said you crossed the line is when you act on those beliefs in a manner that’s discriminatory,” he said.

He also slammed arguments that say the Supreme Court’s 2001 decision is now outdated. That view is “simply wrong,” he said, noting the decision followed at least three rulings in which the top court expanded and recognized the rights of LGBT individuals.

“There’s no reason to believe the court’s willingness to protect religious beliefs has diminished” in light of expanded protection of equality rights, Staley also said.

When LSUC benchers denied accreditation in a 28-21 vote, they “completely ignored” the rights of Trinity Western, according to Staley, who said the law society should have considered ways of accommodating the university that’s short of barring its graduates from practising law in Ontario.

“There was no balancing of rights in this case,” he said.

In the coming days, the law society will argue the university’s admission policies are discriminatory and limit opportunities for law school candidates who will not sign the covenant.

“Compelling the law society to accredit TWU would result in discrimination against those who wish to apply to law school but are not able to conduct themselves as required by the community covenant,” according to the LSUC’s factum. “There are far more qualified applicants for law school admission than there are places available.

“The TWU policy would impose conditions on law school entry on discriminatory grounds. Those students prepared to sign the community covenant would have access to greater number of law school positions and thus be in a preferred position, with the result that the pool of potential licensees to practice law in Ontario would be skewed.”

Justice Ian Nordheimer, one of the judges sitting on the court, asked Staley if the law school should be accredited in spite of the fact that a gay student who cannot sign the covenant will not attend the law school.

Staley said TWU is not for everybody and it’s unlikely those who don’t subscribe to its values will seek admission. He added there’s no evidence that if someone doesn’t go to Trinity Western that they cannot attend another law school.

The court will also hear from several interveners, the Criminal Lawyers’ Association, Out on Bay Street and OUTlaws, the Attorney General of Canada, and the Christian Legal Fellowship.

Trinity Western’s application to open a law school has already been approved by the Federation of Law Societies of Canada, as well as the provinces of Alberta, Saskatchewan, Prince Edward Island, New Brunswick, and the Yukon. And in mid-December, TWU launched a lawsuit against the Law Society of British Columbia, which voted to deny accreditation after initially approving it.

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