4 min

Trinity Western asks BC judge to overturn law school rejection

‘Fundamental rights’ should not be subject to popular vote, says TWU lawyer

Trinity Western law school director Earl Phillips spoke to reporters outside BC Supreme Court Aug 24, 2015, on day one of the Christian university’s lawsuit against the BC law society. Credit: Jeremy Hainsworth

Lawyers for Trinity Western University (TWU) and the Law Society of BC squared off in BC Supreme Court Aug 24 with TWU asking Chief Justice Christopher Hinkson to order the society to return to its initial decision approving TWU’s proposed Christian law school.

BC’s law society initially agreed to accredit the proposed school’s future graduates in April 2014, then reversed its decision six months later after outraged members held a historic special general meeting to demand a new vote.

TWU lawyer Kevin Boonstra told Hinkson Aug 24 that the society is mandated to ensure competent graduates have necessary academic qualification, not to pass judgment on a law school.

At the centre of the controversy that has played out in law societies across Canada is TWU’s community covenant.

For admission to TWU, students must agree to live by a covenant agreeing to uphold Christian biblical teachings, including no premarital or gay sex.

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.

TWU sued the society in December 2014 for rescinding its approval.

Boonstra said the society’s membership demands to reverse the initial approval subjected the school to the whims of popular sentiment rather than the application of the society’s rules by its directors.

“They effectively washed their hands of the decision,” Boonstra said of the directors.

“Fundamental rights are not determined by popular vote,” he added.

Boonstra said the covenant is the basis of community life at TWU and aligns the school with the wider evangelical community.

“The Community Covenant is not peripheral but rather central and part of the education that Trinity Western provides,” Boonstra said.

He said the university aims to educate the whole person, including spiritually.

He said TWU’s rights as a religious community are protected by the Charter of Rights and Freedoms and by the federal Human Rights Code.

Moreover, Boonstra said, there is nothing surprising in the covenant. In addition to a commitment to sex only within the confines of opposite-sex marriage, it also prohibits harassment, lying, cheating, stealing and drunkenness.

Other universities face many of the same problems, he said.

But, he said, an inordinate amount of attention has been placed on the sexual intimacy question.

“It’s simply one of the things you would expect to see reflected in the Trinity Western community,” he said.

Further, he said, TWU does not screen out prospective students.

He said there is no evidence of people having been harassed based on same-sex behavior.

“It does not ask people whether or not they have a particular orientation,” he said. “It asks students to make a choice.”

Boonstra said the requirements are entirely consistent with evangelical orthodox Christian thought.

What’s more, Boonstra argued, with 60 law school seats being taken up by possible Christians at TWU, 60 would be opened up in the pool of about 2,500 already available across the country.

Boonstra said it’s reasonable to conclude that LGBT law students would be discouraged from applying to TWU while “faith-based law students” would be attracted to the school.

“It can’t hurt anybody’s chances by allowing Trinity Western to have a law school,” he said.

He stressed that several US law schools have rules similar to the covenant yet their graduates are allowed to come to Canada to practice.

He said it’s irrational to target all graduates of one law school for exclusion from the profession.

Outside the courtroom, the executive director of TWU’s proposed law school told reporters that what’s at stake is more than just the right of TWU graduates to practice law.

Earl Phillips says the real question is whether people of faith are to be restricted in their right to associate in community and to fully participate in Canadian society.

He says people are going to disagree on beliefs.

“We must be allowed to have some disagreement,” he says. “That is the essence of democratic society.”

If a lawyer were to act in a discriminatory fashion once they began to practice, he notes, they would be subject to discipline by a law society.

The case is expected to continue for four more days until Aug 28.

Interveners in the case include the Canadian Council of Christian Charities; Christian Legal Fellowship; Justice Centre for Constitutional Freedoms; Association for Reformed Political Action Canada; Evangelical Fellowship of Canada and Christian Higher Education Canada; Roman Catholic Archdiocese of Vancouver, Catholic Civil Rights League and Faith and Freedom Alliance; and Seventh-Day Adventist Church in Canada.

OUTLaws represents LGBT law students from universities across Canada. Though it will not address the court as an intervener, the group has filed a submission on behalf of its members as well as Qmunity, BC’s queer resource centre.

The submission says the BC law society correctly concluded that TWU’s covenant creates barriers for LGBT people wanting to attend the proposed school.

“A decision to approve the law school would involve condoning discrimination based on sexual orientation, contrary to the Charter value of equality,” the OUTlaws’ submission says.

The submission rejects TWU’s assertion that a student could choose to suppress their sexuality while at the school or find another school.

“Telling an LGBTQ student to go to a different law school because they are gay is no less discriminatory than telling a Jewish or black student to go to a different law school because of their religion or race,” the submission says.

TWU also sued the law societies of Ontario and Nova Scotia for rejecting the school.

The Ontario Superior Court of Justice July 2 sided with the Ontario law society.

“Despite some efforts by TWU to contend that the Community Covenant does not operate in a discriminatory fashion, it is self-evident that it does,” the court ruled.

TWU is appealing that decision, Phillips says.

In contrast, a Nova Scotia judge ruled in TWU’s favour Jan 28, saying the province’s law society did not have the authority to deny future TWU graduates accreditation.

The Nova Scotia society is appealing that ruling, Phillips says.