The National Post by IO Grad Angela Cameron, Clayton Ruby, Angela Chaisson, Mark L. Berlin, Amy Sakalauskas, Jena McGill, Robert Peterson and Mathieu Bouchard 20 December 2013
What is the appropriate role of a law school in directing its students’ consensual sexual activity? We would argue none. Which is why the decisions by the Federation of Law Societies of Canada and the B.C. Minister of Education to approve Trinity Western University’s (TWU) proposed law school are both legally incorrect and unjust.
In case you missed it, TWU requires all faculty, staff and students to sign a “Community Covenant” promising to “abstain from sexual intimacy that violates the sacredness of marriage between a man and a woman.”
First the injustice.
The legal profession in Canada is highly regulated to ensure that the often lucrative practice of law by those with legal knowledge and power is conducted only in the public interest. The public in question, of course, includes all Canadians, regardless of sexual orientation, while the public interest takes into account constitutional protection for equality rights. Lawyers, institutions of legal training and the bodies governing lawyers must act in a way that is transparent, inclusive and relentlessly follows the rule of law. These decisions to allow a discriminatory law school violate these fundamental principles on a number of levels.
As lawyers, we turn to our provincial law societies for leadership and governance. We elect our representatives to these societies and trust that they will make decisions in a democratic and transparent way. Yet our law societies are increasingly attempting to delegate their authority, including on issues related to accreditation of law schools, to the Federation. Its closed-door decision-making process is patently not in the public interest and is contrary to the statutory mandates of the law societies.
Indeed, in this case, it was extremely flawed. A special advisory committee was struck, which considered submissions made by different individuals and groups in regards to TWU’s proposal during private sessions of the committee. There was no opportunity for anyone to present evidence of discrimination by TWU or the effect of its covenant on LGBTTQ faculty, student and staff to be presented. Yet the absence of such evidence was one of the committee’s key findings, on which it relied to recommend that the proposed law school be recognized by the Federation’s members. B.C.’s education minister, in turn, relied heavily on the Federation’s decision to justify his own.
Second, the decision is legally incorrect.
The Federation relies heavily on a 2001 Supreme Court of Canada judgment issued in a case involving TWU and the B.C. College of Teachers. Although such a precedent cannot be ignored, the Federation overlooks how both Canadian society and the law itself have been significantly transformed over the last 12 years. In particular, the 2013 case of Whatcott departs from the 2001 Trinity Western decision in important ways, notably by wholly rejecting the “hate the sin, love the sinner” excuse adopted by TWU in order to continue its discrimination.
In addition, the 2012 Supreme Court decision in Doré now imposes an obligation on law societies to apply the Canadian Charter and provincial and territorial human rights codes every time they take a decision. The College of Teachers was under no such obligation in 2001. In practice, this means that private religious organizations can adopt membership rules that reflect their beliefs, but the government and other organizations operating in the public interest aren’t bound to approve such rules if they discriminate against individuals.
At the most basic level, it is unjust to have a law school that openly discriminates against a vulnerable segment of the Canadian public
Finally, TWU’s exclusion of LGBTTQ faculty, students and staff runs contrary to its statutory mandate, which is to “to provide for young people of any race, colour, or creed university education in the arts and sciences with an underlying philosophy and viewpoint that is Christian.” But its covenant clearly excludes anyone who lives in a committed same-sex relationship, an issue that was completely overlooked in the 2001 Supreme Court decision.
At the most basic level, it is unjust to have a law school that openly discriminates against a vulnerable segment of the Canadian public. Law schools are the prerequisite training ground for legal professionals and the only doorway for future judges, who must conduct themselves always in the public interest during the course of their work. It should concern every Canadian that the legal profession is sanctioning such exclusion.
We need a made-in-Canada solution that reflects our deeply entrenched legal protection of minority rights. We need an accreditation requirement that prevents any law school from discriminating on any constitutionally protected ground, be it race, gender, disability, religion, sexual orientation or gender identity and expression.
This article was jointly written by Angela Cameron, Clayton Ruby, Angela Chaisson, Mark L. Berlin, Amy Sakalauskas, Jena McGill, Robert Peterson and Mathieu Bouchard.