Several human rights and equality-seeking organizations are calling on the Law Society of BC to implement a full and public process with respect to Trinity Western University's (TWU) law school accreditation.
While TWU received approval in December to open its proposed law school, provincial and territorial law societies regulate the profession and set admission standards for membership.
“It is essential that the Law Society employ a full and transparent decision-making process in relation to the issue of accreditation of this proposed School of Law,” reads a letter, signed by 11 organizations, addressed to the president of the Law Society. “Such a process must provide for and enable full and open debate over the issues raised in connection with TWU’s application.”
The crux of their concern is the requirement that TWU students must sign a covenant in which they agree to uphold Christian biblical teachings — including abstention from sex outside of a heterosexual marriage — as a condition of admittance. According to the student handbook, failure to uphold these rules could result in discipline, dismissal or a refusal to readmit a student to the university.
On Dec 16 the Federation of Law Societies of Canada, which determines whether common-law degree programs meet requirements set out by Canadian law societies, granted preliminary approval to TWU’s application to open a law school. The federation will conduct regular reviews of TWU’s law program until the first cohort of students graduate.
Two days later, on Dec 18, the BC Ministry of Advanced Education also approved TWU’s application for a law school and gave them the authorization to grant law degrees.
According to Law Society of BC Rules, the school is now considered approved by the Benchers of the Law Society of BC unless the society’s board members (called benchers) determine otherwise.
The benchers have the final say as to whether a law degree program meets the requirements for entry into their admission program and thus the legal profession in BC.
“The Law Society has a mandate to protect the public interest and exercises a critical gatekeeper function in deciding who qualifies to become a lawyer in BC,” says Laura Track, legal director of the West Coast Women’s Legal Education and Action Fund, which sent the letter to Law Society president Jan Lindsay on Dec 21. “Its decision about whether to accredit a law school whose admissions policies are discriminatory must involve a transparent process that includes input from concerned members of the public and the profession.”
Nitya Iyer, a lawyer with Lovett Westmacott who specializes in equality issues, envisions a public debate where arguments for and against TWU’s accreditation are articulated.
“I would be on the side of saying, ‘No, we shouldn’t have such a law school,’ but I would want to engage in the debate because it seems wrong to do this in an unexamined way, to have the benchers make this decision on our behalf without hearing from people who have things to say about it,” she says.
Trinity Western president Bob Kuhn says the five highly qualified lawyers on the federation’s special advisory committee established to examine this issue have already considered arguments in favour of and opposed to TWU’s law school proposal.
“They also obtained a legal opinion from renowned constitutional law expert John Laskin, who concluded that the Supreme Court of Canada ruling in Trinity Western University v British Columbia College of Teachers would very likely be upheld were it to be relitigated,” Kuhn says. “The factual circumstances are almost identical, and the Supreme Court of Canada has not changed its interpretation of either administrative law principles or balancing of rights in such a manner as to justify the Supreme Court reversing itself.”
In 2001, the Supreme Court of Canada upheld TWU’s right to teach Christian values to would-be teachers and to insist that incoming students sign its covenant. The high court found the university’s teacher program graduates are entitled to hold “sexist, racist or homophobic beliefs” as long as they don’t act on them in the public school classrooms to which they might be assigned.
UBC law professor Margot Young, who is also a faculty member at the school’s Centre for Feminist Legal Studies, says accreditation with the Law Society is normally an expedited process with no public input.
“This is unproblematic for law schools that don’t have these broad civil-liberties issues attached to them,” she says. “But that’s not the case, of course, with TWU, where there has been significant concern for a long time about the impact of the covenant. It’s now crystallizing in the legal community because they want to open a law school.”
Young believes the proposal merits a wider public discussion.
Law schools "grant considerable public status and power within Canada. As a larger society are we okay with people being excluded access to this resource?” Young asks.
“A law degree is a very powerful door-opener,” she continues. “Are we happy with people being excluded, and do we think they can get a good education in an environment that has this discriminatory underpinning?”
Law Society communications officer Ryan-Sang Lee reiterates that, according to the society’s rules, TWU’s law school is considered approved because it has obtained approval from the Federation of Law Societies of Canada — “unless the benchers determine otherwise.”
“Recognizing the sensitivity of this matter,” he says, “the benchers will take the time necessary to consider the federation’s recommendation and related reports and determine in due course what, if any, additional action is required.“
Though the benchers will consider the matter, he says it’s too soon to say when that process will conclude.
Preston Parsons, who is co-chair of the BC branch of the Sexual Orientation and Gender Identity Conference Section of the Canadian Bar Association, says the Law Society should not defer to the federation’s preliminary decision or follow a closed decision-making process.
“Nova Scotia Barristers' Society has already pledged to hold public hearings to ensure that all perspectives are heard and that the association properly and transparently discharges its decision-making responsibilities,” he says. “We expect nothing less in BC, the province in which TWU’s law school will actually be located and where the majority of its graduates can be expected to seek to practice.”
The executive director of Qmunity, BC’s queer resource centre and a signatory to the letter to the Law Society, urges the society to follow the Nova Scotia Barristers’ Society’s example.
“We would encourage the local association to refer to that one and model a similar process,” Dara Parker says. “The issue at hand is one of discrimination towards the queer community. The covenant is discriminatory because it prohibits queer folks to be themselves.”
Kuhn maintains there is no reason to revisit the federation’s decision.
“The federation did its job; it applied the national accreditation standards to the proposal, and it thoroughly addressed the issues related to the community covenant,” he says. “There is no need for the BC Law Society to repeat the federation’s review.”
The following organizations signed the letter to the Law Society of BC:
BC CEDAW Group
BC Public Interest Advocacy Centre
Committee for Domestic Workers and Caregivers Rights
Community Legal Assistance Society
Justice for Girls
Lawyers’ Rights Watch Canada
Pivot Legal Society
Poverty and Human Rights Centre
Sexual Orientation and Gender Identity Conference Section of the Canadian Bar Association (BC Branch)
UBC Centre for Feminist Legal Studies
UBC Institute for Gender, Race, Sexuality and Social Justice
West Coast Women’s Legal Education and Action Fund (West Coast LEAF)
Women’s Legal Education and Action Fund (National LEAF)