Law Societies in Nova Scotia and Ontario Rightly Say No to TWU’s Discrimination

Elaine Craig defends recent decisions by the Law Society of Upper Canada and the Nova Scotia Barristers’ Society to refuse accreditation of Trinity Western University’s law degree program.

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All student and staff applicants to Trinity Western University (TWU) are required to sign a Community Covenant pledging not to engage in same sex sexual intimacy. This covenant means sexual minorities could only attend TWU at considerable personal cost to their dignity and sense of self-worth.   According to the Supreme Court of Canada, imposing this kind of personal cost constitutes discrimination on the basis of sexual orientation.

twuAll student and staff applicants to TWU are required to sign this covenant pledging not to engage in same sex intimacy.  On April 11, 2014, the Law Society of British Columbia accredited TWU’s law degree program despite the university’s formal policy of exclusion on the basis of sexual orientation.

Later that month, the Law Society of Upper Canada (LSUC) and the Nova Scotia Barristers’ Society (NSBS) refused to approve that same program because of concerns regarding the institution’s discriminatory admissions policy.  Law societies in several other provinces have yet to make a decision on accreditation.  In order for TWU law graduates to gain entry to the practice of law in each province through the same process as law students from fully accredited Canadian law schools, the university’s program must be approved by each of the province’s respective law societies.

TWU has announced its intention to initiate legal proceedings in Ontario and Nova Scotia to challenge the decisions of the law societies in those provinces.  When the courts review the decisions of the LSUC and the NSBS, the central question will be: did these decision makers secure a reasonable and proportionate balance between their statutory objectives and the constitutionally enshrinedvalues of equality and freedom of religion?  The answer is yes.

In deciding whether to approve TWU’s proposed law degree, the LSUC and the NSBS were required to balance freedom of religion and equality.   The LSUC and the NSBS were not asked whether they approve of TWU’s beliefs, but rather whether they could accredit an institution with TWU’s discriminatory practices.

As the NSBS emphasized, TWU and its graduates are free to believe and preach whatever they choose regarding the immorality of same sex intimacy. In terms of practices, they are free to pursue the study of law.  They are free to educate lawyers who can gain entry to the legal profession through channels other than attendance at an accredited institution. And they are certainly free to abstain from engaging in practices involving same sex sexual intimacy.  Freedom of religion should protect these practices.

However, the NSBS and the LSUC refused to extend freedom of religion to the protection of formal discriminatory hiring and admissions practices. This constitutes a reasonable limit on freedom of religion. As the Supreme Court has noted, the freedom to hold beliefs is broader than the freedom to act on them.

It is reasonable for a law society to question whether fundamental aspects of an accredited Canadian legal education can be adequately taught in a setting of institutionalized discrimination.   Indeed, in making their decisions the LSUC and the NSBS had before them a report from the Approval Committee of the Federation of Law Societies indicating concerns that the underlying beliefs reflected in TWU’s Community Covenant may preclude the appropriate teaching of equality rights and the ethical obligation not to discriminate.

In addition, it was reasonable, if not necessary, for the LSUC and the NSBS to consider whether TWU’s hiring and admissions policies violate human rights legislation in Ontario and Nova Scotia. The majority of provinces do not have religious exemption clauses identical to the one found in British Columbia’s human rights legislation. As such, it is incumbent upon regulators of the legal profession to consider whether TWU’s policies would be unlawful in their province.

For example, the Nova Scotia Human Rights Act does not create an exception for the student admissions policies of religiously-based university programs.  In making its decision, the NSBS had before it a legal opinion from the Nova Scotia Human Rights Commission concluding that TWU’s policy was unlawful in Nova Scotia.

Finally, the LSUC and the NSBS decisions to reject accreditation strike a reasonable balance between freedom of religion and equality because approval would risk further stigmatizing an historically disadvantaged minority.  This would have a significant adverse effect on the social status of gays and lesbians.  It is reasonable for a law society to conclude that it is in the public interest to place a limit on religiously-based discriminatory actions in an effort to avoid this adverse effect on the social status of a vulnerable minority.

Despite assertions to the contrary by TWU, an institution that prohibits same sex sexual intimacy, and that requires its students to police one another’s covenant not to engage in gay sex, is not a place that welcome gays and lesbians.  The decisions of the LSUC and the NSBS reflect a just and proportionate balance between freedom of religion and equality.  The legal profession in these provinces should be proud of the work done by their chosen regulators.

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Elaine Craig is an assistant professor at Schulich School of Law at Dalhousie University.  She is the author of “The Case for the Federation of Law Societies Rejecting Trinity Western University’s Proposed Law Degree Program.”

This blog is a condensed version of her forthcoming article “TWU Law: A Reply to Proponents of Approval”.

One comment

  1. Elaine,

    You are right that not all provinces have human rights provisions similar to the one in BC that permits TWU to discriminate against gays and lesbians. Ontario, however, does. In particular section 18 of the Ontario Human Rights Code provides that:

    18. The rights under Part I to equal treatment with respect to services and facilities, with or without accommodation, are not infringed where membership or participation in a religious, philanthropic, educational, fraternal or social institution or organization that is primarily engaged in serving the interests of persons identified by a prohibited ground of discrimination is restricted to persons who are similarly identified.

    If one accepts, I think plausibly, that TWU’s covenant has the effect of restricting admission to TWU to those who share its conception of the Christian faith (faith being a prohibited ground of discrimination) and that TWU is “primarily engaged” in serving the interests of such people, it’s hard to see how TWU’s conduct wouldn’t be expressly permitted under the Ontario Human Rights Code. In any event, this provision would seem to fatally torpedo the notion that, in Ontario at least, discrimination by religious organizations is inherently against the public interest.

    In any event, the bigger question is whether the scope of the statutory authority of the provincial law societies extends to refusing to allow students to become licensed because they disagree with the (otherwise legal) conduct of their school (is it relevant that TWU doesn’t comply with, say, Nova Scotia’s human rights code? Do we know that UofT or Osgoode complies with the human rights codes in all 10 provinces? (For years, for example, Ontario permitted mandatory early retirement. Other provinces didn’t (or vice versa) Surely it’s sufficient that they comply with the laws in place in the province in which they operate. Does the law society review the human rights compliance of the alma mater of NCA students (many of whom, given the general animosity to gays and lesbians elsewhere in the world, are likely to be far less tolerant of gay and lesbian students than TWU)?

    Obviously, the conduct of TWU might be a pertinent consideration where the conduct of the school affected the quality of the students it produces (i.e., it refused to teach law that was inconsistent with its faith), but there is no suggestion that would be the case with TWU. Indeed, the fact that Nova Scotia said that it would admit TWU students if the school dropped its covenant is concession that it has no substantive concerns with TWU graduates. That’s a pretty fatal blow to their case that it would be against the pubic interest to allow those graduates to be called to the bar – it not being at all clear how the actions of a unviersity in BC affect the administration of justice in NS.

    Beyond that, it’s not clear that the law societies have the statutory authority to refuse to accredit students and schools for reasons that are not substantive and relating to the practice of law in their provinces. To be sure, opponents of TWU have tried to torture the relevant provisions of the provincial legislation governing the law societies, to read in to them a broad power to take actions in some, undefined, “public interest”. But on any textual, contextual and purposive interpretation of that relevant that interpretation goes far beyond what was intended, namely that the authority of the law society is limited to regulating the behaviour of members of the profession and ensuring their competence and integrity in the administration of justice.

    For what it’s worth, this latter interpretation is consistent with the decision of the Supreme Court of Canada in TWU, in respect of the BC college of teacher’s refusal to accredit TWU students. Interestingly, the BC college of teachers was governed by (strikingly) similar legislation (not surprising given that it serves a similar regulatory function to the law societies), suggesting that a court would give a similar interpretation to the role of the law societies. That some of Canada’s law societies – and a good portion of the provincial bars – had decided to ignore that decision, speaks poorly of their commitment to the rule of law, hardly something for the rest of the profession to be proud of.

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