The National Post by Jenna McGill, Angela Cameron, Elaine Craig, Mark L. Berlin, Amy Sakalauskas, Mathieu Bouchard, Preston Parsons and Danielle Jarvis 24 January 2013
Like all TWU faculty, staff and students, law students attending TWU would be required to sign a Community Covenant Agreement. That Covenant includes the stipulation that “in keeping with Biblical and TWU ideals,” all TWU community members will abstain from same-sex sexual intimacy. Any student violating the TWU Covenant risks disciplinary measures including expulsion.
The strongest opposition to the TWU proposal to date has issued from the Canadian Council of Law Deans (CCLD), which circulated a letter addressed to the Federation of Law Societies of Canada, describing the TWU Covenant as “fundamentally at odds with the core values of all Canadian law schools.” The deans encouraged the Federation to consider the discriminatory impact of the Covenant on would-be law students who are gay, lesbian and bisexual. The Federation has the responsibility to determine whether graduates of a law program at TWU would be qualified to enter into a provincial or territorial law society articling program. (The Federation does not have the say as to whether TWU can offer a law program. That is the job of the British Columbia government.)
Both National Post articles supporting TWO rely on a 2001 Supreme Court of Canada decision that upheld Trinity Western’s education program as being definitive on the question of whether it should now have a law school. Importantly, the Supreme Court in 2001 made clear that the BC College of Teachers, the organization governing the suitability of individuals for public school teaching and from which TWU was seeking approval of its proposed teaching degree, was correct in referring to the Charter and the Human Rights Code in fulfilling its mandate of determining whether it would be in the public interest to allow public school teachers to be trained at TWU. Now, the Federation must decide whether approving TWU’s proposed law degree program for purposes of admission to the practice of law is in the public interest.
It has been 12 years since that decision, and much has changed — both in the law and in Canadian society. Time did not stop in 2001.
In making its decision, the Federation must consider the Charter values of equality and non-discrimination. Today, a decision of the Federation to deny the request of TWU would be held to a different standard — a standard that recognizes the increased Charter protections for gays and lesbians today. The social, legal and political considerations are different this time around.
The crux of the issue is how the discrimination and institutional environment at TWU impacts the ability of the school to teach law. In order to permit entry into a provincial or territorial law society (as determined by the Federation), the law degree program must meet national standards in its curriculum. Those standards require critical thinking about ethical and legal issues. No person can truly think critically from one pre-determined lens, in this case, a lens mandated by TWU.
This is not an assault on freedom of religion, as has been alleged. It is a request for the Federation to act in accordance with its public interest mandate and give this question proper consideration. Perhaps TWU should be able to offer its law degree program, but it does not automatically follow that its graduates would then be ready to apply for admission to a bar society articling program. There are obvious deficiencies in the TWU proposed law degree that would need to be addressed.
The authors are as follows: Professor Jena McGill, University of Ottawa, Faculty of Law; Dr. Angela Cameron, Professor, University of Ottawa, Faculty of Law; Dr. Elaine Craig, Professor, Schulich School of Law at Dalhousie University; Mark L. Berlin, Professor of Practice, Institute for the Study of International Development, McGill University; Amy Sakalauskas, LLB; Mathieu Bouchard, LLM, partner, Irving Mitchell Kalichman LLP; Preston Parsons, J.D; Danielle Jarvis, Jarvis Legal Law Corporation.