The final decision on whether BC's Trinity Western University (TWU) can operate a law school now rests with the society governing the province's legal profession, which began debate on the issue Jan 24.
To be admitted to TWU, students must sign a covenant agreeing to uphold Christian biblical teachings, including no premarital sex and no homosexuality. Failure to uphold these commitments, according to the student handbook, could result in discipline, dismissal or a refusal to readmit a student to the university.
The issue boils down to balancing equality rights with freedom of religion, board member Sharon Matthews told the Law Society of BC meeting.
Society president Jan Lindsay says the debate could take several months.
What the society, and its counterparts across Canada, must evaluate is whether TWU graduates would meet requirements for admission to the legal profession in their province.
Past president Gavin Hume told the board that TWU’s application raises several areas of concern, including teaching ethics and teaching public law, human rights and the Charter of Rights and Freedoms.
Hume says there is “tension” between the teaching of those subjects and the covenant that TWU insists its students sign.
"No sex outside of marriage except between a man and a woman," he says. "There is no doubt that is the focus of the issue."
TWU’s application to open a law school was approved Dec 16 by the Federation of Law Societies of Canada, an umbrella group for territorial and provincial regulators of the legal profession. The federation said it had to examine only whether the proposed law school’s graduates would meet professional requirements for knowledge and competencies needed for entry to the bar admission programs in the Canadian common-law jurisdictions.
Two days later, TWU’s proposal got the nod from BC’s Ministry of Advanced Education, saying it met the quality assessment criteria to grant law degrees.
Joe Arvay, a Law Society of BC board member who represented Little Sister's bookstore in its fight against Canada Customs' book seizures, says any decision the society makes has to be compatible not only with its own rules, but also with the Charter of Rights and Freedoms.
Lindsay says the Law Society needs to investigate the issue carefully. "Trinity Western is going to take up a lot more of our time than we anticipated, but we will do the job,” she says.
Lindsay says that with the exception of privileged legal opinions, all submissions and information will be "made available."
"Our meetings are open to the public," she says. “We will be thorough. We will be fair. We will be thoughtful. We will be open.”
She says the society will soon open its website to invite submissions in the decision-making process. An update on the process will be provided Feb 28 with a March 3 deadline for submissions.
Hume's presentation to the society shed further light on the Federation of Law Societies of Canada’s decision to approve TWU’s law school application.
He noted the deans of Canada’s law schools had objected in early 2013 to the university’s bid to establish its own law school because it upholds a policy that discriminates against gay students.
Hume said three law deans were on the federation's application review committee and had to recuse themselves from the body because of a conflict of interest. Among them was Mary Anne Bobinski, dean of law at the University of British Columbia, Hume said.
Hume said the federation heard representations from the gay community.
Lawyer Geoffrey Gomery said in a Jan 17 memo the Law Society owes a duty of procedural fairness to TWU. "The Law Society does not owe a duty of administrative fairness to those opposed to TWU," he added.
Toronto lawyer Clayton Ruby has said he will take the BC government to court for approving TWU’s law school, since it would discriminate against gay lawyers. "It's immoral and unconscionable and we think unconstitutional," he told Xtra in December.
BC Law Society member David Mossop is under no illusions there will be a quick resolution to the situation.
"It doesn't matter what we do. We're going to get sued on this," Mossop says. "This is going to be going on for years."
The Law Society’s TWU discussion was preceded by a report on improving diversity among judges.
Maria Morellato, of the society's advisory committee on equity and diversity, said the goal is to increase diversity not only from women, but more broadly. The society runs mentorship programs for aboriginal lawyers and has long been engaged in work to increase the profile of women in the legal profession.
The society adopted a recommendation to proceed with work to identify and alleviate "systemic barriers including situations, policies, and practices which unfairly exclude members of equity seeking groups from career progression."
In other parts of Canada, the Nova Scotia Barristers' Society has announced that it will hold a public consultation on TWU’s proposed law school.
In contrast, the Law Society of Alberta has accepted the federation’s decision and doesn’t plan to discuss TWU’s accreditation further, according to the treasurer of the Law Society of Upper Canada.
Carsten Jensen, president of the Alberta Law Society, said in an undated letter that TWU’s law school application was made in the context of a Supreme Court of Canada decision from more than a decade ago regarding TWU’s community covenant and the education of teachers.
The court ruled there is a need to balance the Charter rights of religious freedom and protection from discrimination based on sexual orientation. It found that as a private institution receiving no government funding, TWU was operating within the law.
How TWU’s teachers’ case relates to its law school application is unclear, Jensen said, adding that he would welcome a judicial review.
"The law society is aware that this is a contentious issue, and we are aware of and concerned about the impact of the TWU community covenant on gay and lesbian students," he said. "I am especially concerned about ensuring that our profession represents the diversity of the communities that lawyers serve."
The Law Society of Upper Canada, in Ontario, is due to consider the TWU situation in April.