CBA was ahead of the curve on TWU

  • June 26, 2018

The Canadian Bar Association has taken an interest in Trinity Western University’s plan for a law school since the proposal first came before the Federation of Law Societies of Canada for approval in 2012.

Then-CBA President Robert Brun wrote to the FLSC in 2013, urging compliance with the Charter and human rights legislation when considering applications to establish new law schools. An accompanying letter from the CBA’s Equality Committee and Sexual Orientation and Gender Identity Community raised human rights concerns. In 2014, the CBA passed a resolution calling for non-discrimination in legal education. And when Trinity Western University v Law Society of Upper Canada and Law Society of British Columbia v Trinity Western University made it all the way to the Supreme Court, we sought, and received, leave to intervene.

The judgments in the two cases handed down in mid-June not only vindicated the CBA’s arguments, the Association’s advocacy seems to be almost a precursor to them. We’ve gone through the two judgments and picked out some striking similarities between CBA arguments and SCC language.

Letter from Robert Brun to FLSC president, March 18, 2013

“In our view, the Federation and the Committee charged with approving new Canadian law degree programs must strike a balance between freedom of religion and equality, and give full consideration to its public interest mandate and to the values embodied in Canadian human rights laws.”

(TWU v LSUC) [3] “the LSUC’s decision not to accredit TWU’s proposed law school represents a proportionate balance between the limitation on the Charter right at issue and the statutory objectives the LSUC sought to pursue. The LSUC’s decision was therefore reasonable.”

Letter from SOGIC and Equality Committee to FLSC president, March 18, 2013

“The fact that no student may ever be expelled for breaching the Covenant’s sexual intimacy rules is not determinative. As acknowledged by the Supreme Court of Canada in Vriend v Alberta, the mere fear of discrimination may in and of itself cause serious psychological harm.”

(TWU v LSUC) [41] Except for the interference identified above, no evangelical Christian is denied the right to practise his or her religion as and where they choose. The LSUC’s decision means that TWU’s community members cannot impose those religious beliefs on fellow law students, since they have an inequitable impact and can cause significant harm. The LSUC chose an interpretation of the public interest which mandates access to law schools based on merit and diversity, rather than exclusionary religious practices. This decision prevents concrete, not abstract, harms to LGBTQ people and to the public in general.

“Lawyers are viewed as leaders in their communities. Lawyers rely on law societies to offer leadership and regulation in the public interest, including on issues relating to equality.”

(LSBC v TWU) [42] “The LSBC is statutorily mandated to ensure the competence of lawyers as a means of upholding and protecting the public interest in the administration of justice (LPA, s. 3(b)). The LSBC is not limited to enforcing minimum standards of competence for the individual lawyers it licenses; it is also entitled to consider how to promote the competence of the bar as a whole.

“(T)he Federation could ask Trinity Western to remove or modify its Covenant and other rules, practices and policies … This could be achieved while maintaining the Christian character of the school, yet ensuring that it is truly open to ‘young people of any race, colour or creed,’ in accordance with its statutory mandate.”

(LSBC v TWU) [85] “The LSBC did not deny approval to TWU’s proposed law school in the abstract; rather, it denied a specific proposal that included the mandatory Covenant. Indeed, when the LSBC asked TWU whether it would “consider” amendments to its Covenant, TWU expressed no willingness to compromise on the mandatory nature of the Covenant. The decision therefore only prevents TWU’s community members from attending an approved law school at TWU that is governed by a mandatory covenant.” 

CBA factum

“As gatekeepers to the entry points of the legal profession, law societies have an obligation not only to ensure that their members possess certain academic qualifications; they must also promote equal access to the profession regardless of the personal characteristics of any applicants. This duty flows from both the equality-focused nature of the legal profession itself and from the statutory obligation to make regulatory decisions in the public interest in the administration of justice.”

(TWU v LSUC) [21] “(I)t is inimical to the integrity of the legal profession to limit access on the basis of personal characteristics. This is especially so in light of the societal trust enjoyed by the legal profession. As a public actor, the LSUC has an overarching interest in protecting the values of equality and human rights in carrying out its functions …”

“The responsibility to promote equality, tolerance and diversity flows from the inherent nature of the profession, namely its obligations to  uphold and propagate the rule of law and respect for constitutionally protected rights and freedoms and to provide representation to all.”

(LSBC v TWU) [43] “A bar that reflects the diversity of the public it serves undeniably promotes the administration of justice and the public’s confidence in the same. A diverse bar is more responsive to the needs of the public it serves. A diverse bar is a more competent bar (see LPA, s. 3(b)).”

“The twin imperatives of inclusivity and equality require law societies to prevent barriers to access to the legal profession that are by their nature discriminatory.”

(TWU v LSUC) [20] In our view, the LSUC was entitled to conclude that equal access to the legal profession, diversity within the bar, and preventing harm to LGBTQ law students were all within the scope of its duty to uphold the public interest in the accreditation context, which necessarily includes upholding a positive public perception of the legal profession.

[0] Comments

CBA members may sign in to comment.