Reasonable Doubt: Trinity Western University grads should not be allowed to practise law

In the past weeks the news has been abuzz with Trinity Western University’s bid to open a law school.

As you well know by now, the mandatory student covenant has been the cause of all the uproar. In short, the covenant makes it clear that LGBTQ people are not welcome at TWU. (You can argue semantics all you want, but that is the effect of the covenant).

The Canadian Federation of Law Societies has given TWU preliminary approval to start a law school, but the authority to licence graduates from Christian faith-based TWU remains in the hands of provincial law societies.

In BC, the Law Society of BC voted twenty to six in favour of granting licences to eligible candidates from TWU. In Ontario, the Law Society of Upper Canada voted 28 - 21, with one abstention, against allowing graduates from TWU to practice in Ontario. In Nova Scotia, the law society voted in favour of allowing the graduates of TWU to practice in Nova Scotia, as long as TWU amends their mandatory discriminating covenant. The Canadian Bar Association recently passed a resolution urging the Federation of Law Societies of Canada and the provincial and territorial law societies to:

… require all legal education programs recognized by the law societies for admission to the bar to provide equal opportunity without discrimination on the basis of race, national or ethnic origin, colour, religion, sex, sexual orientation, gender expression, gender identity, age or mental or physical disability, or conduct that is integral to and inseparable from identity for all persons involved in legal education – including faculty, administrators and employees (in hiring, continuation, promotion and continuing faculty status), applicants for admission, enrolled students and graduates of those educational programs.

The writers of Reasonable Doubt have decided to collaborate on this article in order to articulate some of the problems with permitting licences to practice law to TWU graduates in plain English.

Let us begin by explaining that practicing law is a privilege. It is nobody’s right to practice law. The law society in any province has the power to grant a licence and to take it away. Law societies are the ultimate gatekeepers of the profession; they set criteria that people must meet before they can practice law and they determine whether or not any given person has met these criteria.

Individuals licensed to practice law often enter law-making professions, like politics or the judiciary, which wield a great deal of power in society. Law societies review the background of each person applying for a licence to ensure that they meet the moral and ethical standards necessary to occupy a position of trust in society and to practice law. It is a law society’s job to look at an individual and say whether or not they pass muster.

Would it be fair to say to a TWU graduate who put three years of work in and passed their bar exams that they are not eligible to be lawyer?

The problem with framing the analysis of whether or not TWU graduates should be able to practice law in BC by only considering the impact on potential graduates misses the bigger picture. TWU graduates will not be much different from other graduates of law schools in BC. There will be good students and there will be bad students and there is no evidence that a TWU graduate will necessarily discriminate in his or her practice against anyone by virtue of attending a faith-based school. To make the claim that TWU graduates are likely to discriminate against people that do not hold their own values is mere conjecture.

That is not the point.

Not to mention that if a law society does not agree to licence graduates from a Canadian law school, it is not a punishment for graduates from that school because it’s unlikely that there will ever be any graduates from that school.

Few law students would choose to attend a law school and pay the expensive tuition knowing that there is no chance that they could practice law in the province of their choice after graduation.

A school with no students is not a school.

There are already so many factors in life that make it more likely that some groups of people (like the white, straight, male upper-middle class) will have greater opportunities to go to law school. This is reflected in the homogeneity of our profession, which does not reflect the diversity of BC’s larger population, and in our judiciary, where the majority of judges are white males.

The legal profession recognizes the value in having lawyers from different backgrounds and works hard to encourage and retain a diverse professional body. The bar that aspiring law students must reach is high enough that the pool of potential professionals is already less diverse than our provincial population.

There are just over 20 Canadian law schools, each of which accepts only a few hundred students, or less, each year. Compare that to the thousands of applicants each year, and you’ll understand the filter that Canadian law school admission policies play. The Canadian law school is the first institution that surveys the general population and gets to determine which people may be allowed to continue on to practice law. Law schools determine their own admission policies and design curriculums as they see fit, but admission policies are usually focused on academic merit and extra-curricular achievement.

To licence graduates from a Canadian law school, which makes it clear that they require all students to sign a covenant which has no bearing on whether a person is a good candidate to practice law, and which at its heart discriminates against a discrete and identifiable portion of our population for being who they are, means that the legal profession condones discrimination from the highest echelons of our professional institutions. It means in this case, that in fact, discrimination is okay, as long as it’s only on the basis of sexual orientation.

Not licencing graduates from a Christian faith-based law school is not an evil plan to target Christians; it is the legal profession taking a position that it will not tolerate any law school that breaches fundamental human rights and discriminates on a ground protected by human rights legislation.

No, a law society that will not licence graduates from a particular aspiring law school (ie TWU), is not an attack on Christians (who are more than welcome at any other law school in Canada), it is a short, sharp, effective rebuke against a powerful institution that boldly attempts to discriminate against a vulnerable minority.

We should be able to trust that law societies will protect applicants who are not heterosexual Christians in the same way that we expect them to protect applicants from being refused entry on the basis of colour, sex or religion. When appropriate, we should also be able to rely on law societies to be leaders in the law, the profession and legal education generally.

On April 23, 2014, just over a week after the Law Society of BC made their decision to licence graduates of TWU, a lawyer from Victoria named Mike Mulligan collected enough signatures from lawyers in BC to force a special meeting of the Law Society. The purpose of the meeting will be to convince the Law Society to reverse their previous decision. If they don’t, this could force a binding referendum of all BC members off the profession on the issue of TWU. We, at Reasonable Doubt, hope that this puts BC lawyers on the right side of history.

Joseph Fearon, Carmen Hamilton, Michael McCubbin, and Kevin Yee contributed to this article.

Comments (30) Add New Comment
Maureen Jones
"effective rebuke against a powerful institution that boldly attempts to discriminate against a vulnerable minority." The same could be said of the Law societies that discriminate against TWU Law School grads. Also, there will be a Law school at TWU because there is no lawful reason to deny it.
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max
@Maureen Jones: do you see TWU Law School grads as a 'vulnerable minority', or is the idea that actively practicing Christians have become a minority?
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Dude
TWU's covenant, though most blatantly targeting gays, also effects any unmarried person that has sex.

What's the point of getting into law school if you can't use bragging about being in law school to procure some extra-marital relations?
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Anonymous Lawyer
In granting TWU accreditation, the B.C. Law Society is seen to be giving public endorsement to TWU’s practice of discriminating against members of the LGTBQ community and, further, granting legitimacy, in the public sphere, to TWU’s Christian view that homosexuality is wrong. This appearance of public endorsement is not in the public interest. Worse yet, this is a detriment to our society’s gruelling, long-fought battle to recognize the human rights of all members of the LGTBQ community and their right to be treated equally. The decision to accredit TWU was wrong: http://wp.me/p4A1wz-4
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@Maureen Jones
Ah, the old "if you hold me accountable for my discrimination (or other bad behaviour), then you are discriminating against *me*" defence.

If you are a lawyer, I do hope you provide better arguments for your clients.
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Resonable Doubt is priceless
Just wanted to add a comment saying that I think Reasonable Doubt is one of my favourite parts of the Georgia Straight and is up there near Ken White at PopeHat for favourite legal-beagle-authored columns.


Thank you for your efforts.
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MarkFornataro
It's great to see this smart, progressive alliance of 'reasonable doubt' lawyers taking this stand against institutionalized discrimination.
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R. Wroe
"Let us begin by explaining that practicing law is a privilege. It is nobody’s right to practice law."

Actually, that is wrong. Of right, anyone may practice law. It is merely a statutory monopoly vested in the various law societies, one that is clearly creating a large potential for abuse. If I want a TWU lawyer, I should be able to hire a TWU lawyer. The law society should exist to provide pooled insurance for people who want lawyers with pooled malpractice insurance, and that is it. If I want a lawyer who has private insurance or no insurance, that should be my call.

I have appeared as an advocate in the Supreme Court of British Columbia, and I don't even have a Bachelors. I was called to the bar for that hearing and admitted.

All this shows is that you are a bunch of monopolists who don't believe in a free competition of ideas---suppose TWU goes ahead regardless and issues degrees in spite of the Law Society not accrediting them. What rational ground would you have for denying them accreditation in the same way that the NCA accredits foreign law degrees? Would you seriously think it acceptable to look at the "code of conduct" a student was bound to rather than the curriculum?

As a prior commenter on this issue suggested, all this is showing is that the "self government" of the legal profession is no longer appropriate---exactly why shouldn't lawyers be governed by the people, through their democratically elected representatives?
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Rick in Richmond
Maureen Jones misses the point entirely, in order to avoid an attack no one has made.

In Canada, no one cares about your religious views, Maureen. We only care if you can do the job. By their own admission, TWU graduates in law could not. And no one will hire them, because of it.

Consider. A TWU-trained lawyer is approached to represent a gay man, or a single mother, or a Muslim, or some other kind of sinner. Said TWU lawyer will then say, "I despise you. I loathe your immoral lifestyle. It is abhorrent to me and to God. I have signed a Covenant, and pledged my honour, in this belief. You will go to Hell.

"However, if you pay me enough, I will defend you in court."

Do you see the point now, Maureen?

The extreme and uncharitable views of the TWU Covenant guarantee the unemployability of their graduates in law -- to say nothing of their failure to honour Canadian values of fairness, mutual respect, and tolerance.
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Law Schools
In general law schools have a certain criteria that they want from an individual, and, when they do not accept those that do not fit that criteria they discriminate. Yet, race, gender, sex, and sexual orientation are merely arbitrary, left up to the whims of nature. Thus, the individual has no choice. Thus, such arbitrary biology should not be part of institutional decisions. Yet, things aren't that simple. What about class? What about those people who have a low probability from birth of going to law school because of the income their parents made? Institutional discrimination is at the heart of our society and allows for the few to become elites. You talk of LGBTQ, but that is just the tip of the iceberg.
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Dave Thomas
Nonsense. Read the covenant as it existed during the teachers' SCC case and read the Court's reasoning.

This covenant is not nearly as strongly worded. It does not condemn "homosexuality as a sin." It prevents intimacy outside of male-female marriages. So you can be straight and have the same issue if you're not married. Tell me the difference between this and a covenant any religious person, straight or gay, would have to abide by when entering a monastery or seminary.

" Although the Community Standards are expressed in terms of a code of conduct rather than an article of faith, we conclude that a homosexual student would not be tempted to apply for admission, and could only sign the so-called student contract at a considerable personal cost. TWU is not for everybody; it is designed to address the needs of people who share a number of religious convictions. That said, the admissions policy of TWU alone is not in itself sufficient to establish discrimination as it is understood in our s. 15 jurisprudence. It is important to note that this is a private institution that is exempted, in part, from the British Columbia human rights legislation and to which the Charter does not apply. To state that the voluntary adoption of a code of conduct based on a person’s own religious beliefs, in a private institution, is sufficient to engage s. 15 would be inconsistent with freedom of conscience and religion, which co-exist with the right to equality."

Exactly.
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@R Wroe
"Let us begin by explaining that practicing law is a privilege. It is nobody’s right to practice law."


Actually, that is wrong. Of right, anyone may practice law.

Everyone has the right to legal representation, and, if they're foolish or desperate, to represent themselves.

They do not have the right to represent others for pay. To "hang out a shingle" as I believe the phrase goes.

The average person seeking representation is not capable of evaluating a lawyer's competence and needs to be able to depend on a basic minimum level of qualification.
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Paul G
Unlike the decision in "Trinity Western University v. British Columbia College of Teachers, [2001] 1 S.C.R. 772, 2001 SCC 31", provincial law societies do not have to show a "link" between TWU's discriminatory policies and the ability to practice law, in order to deny accreditation (as was the case with the College of Teachers, who had the evidentiary burden to establish that "link" to teaching). Accordingly, TWU could not use the same argument to successfully challenge the Law Society of Upper Canada's decision to deny TWU law-grads accreditation. Any law school that graduates students who could not practice in Canada's largest province (and perhaps in B.C., if the LSBC special general meeting overturns the Benchers' past ruling granting accreditation) isn't worth attending. And anybody who spends their money getting a law degree with such limitations placed upon it is also out of their mind... This is a pending law school that will in all likelihood lack broad legitimacy, funding, gravitas, and most importantly - high calibre candidates.
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Andrei Mincov
So many things wrong with this article.

Practicing law is NOT a privilege. That the government usurped the right to allow or disallow free people to voluntarily agree who can provide which services to whom does not make the practice of law into privilege. I defy the moral authority of the government or the law society to tell me whether I can or cannot practice law. Not everything that is legal is moral.

All private anti-discrimination laws must be abolished as arbitrary, tyrannical and immoral. More on this at http://mincov.com/articles/index.php/fullarticle/Abolish_Human_Rights_Co...

The only proper way to deal with this situation is by having the free market take care of it: no one forces anybody to attend this law school with whose principles many may not agree; no one forces anybody to buy legal services from its graduates.
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Michael Puttonen
TWU and Further Tales of the The Academy in Harperland...

BC’s own James Moore received his USask. MA in 2011. In 2009 he was a rookie cabinet minister, fighting for re-election (he out spent his combined opposition 3 to 1), with special responsibility for the 2010 Vanc Olympics. Yet...Conservative Superman that he is, he still found time to complete a MA at USask.

USask graduate handbook estimates he’d be doing 40 hrs per week in his classes, study & writing. And then he had to research and write his 75 page thesis. How did the minister do it, and still oversee the Olympics and 36 other major accomplishments and initiatives listed in his bio? Well, USask just gave him credits. Whereas the other grad students actually had to show up and take the classes and write the assignments, etc.

TWU is part of a string of Conservative Party ‘academic pearls’ that includes Western, USask, UCal and TWU. They train up Conservative parliamentary interns in their undergraduate programs. They grant graduate degrees to Conservative staff and MPs, giving them “graduate credits” for their political work so they don’t even have to attend classes like the other graduate students. These pols and staffers then return to the fray “credentialed” and eligible for higher positions and better pay.

I imagine TWU will be concentrating on training up practitioners of administrative law: labour law, immigration, environmental legislation, who will be going for corp. and gov't jobs. If they turn out any trial lawyers who deal with common law, ordinary people charged with something like assault, or run-of-the-mill torts throw up in the marketplace...it will be incidental.

TWU is primarily looking to train up the shock troops of “movement conservatism”, devoted to rolling back the last 100 years of labour, environmental, and human rights legislation we enjoy. TWU cares, but not that much, about “the bar”.

These ‘string of pearls’academic institutions being used to back up goof-ball policies like simultaneously privatizing the Wheat Board and socializing the railways....or claiming that gay married people can’t exist where pious people don’t want them to. So I imagine most all TWU law grads will be trained up to do their work in back rooms, not court rooms. And as we’ve seen with ALEC, we will all be the worse for it.
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@@R Wroe
"They do not have the right to represent others for pay"

Of course they do. The fact that a prohibitory statute had to be passed demonstrates that everyone does have the right to represent others for pay. The matter is one of freedom of contract; indeed, I wonder when I was made a party to that trust called "Legal Profession Act." On what day and date did it happen?

"The average person seeking representation is not capable of evaluating a lawyer's competence and needs to be able to depend on a basic minimum level of qualification."

This elitist contempt for the commons is far more odious than any discrimination against minorities.
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JacobFitcher
Some have put forth the arguement that it isn't discrimination because it forbids all sex before marriage. Specifically, it reads that the students are to report themselves and others who do not abstain from “sexual intimacy that violates the sacredness of marriage between a man and a woman.”

You can be gay and in a legal, recognized marriage in Canada. So even if you are married you aren't allowed to have sex if your partner is the same gender.

I certainly wouldn't want to work with a lawyer who condones discrimination. In my view, attending a school like TWU would amount to just that.
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Anonymous Lawyer
This TWU controversy has brought out many issues and many perspectives. With respect, it seems like many have failed to consider the key problem that I see. No one is prohibiting Christian lawyers from practicing law. No one is requiring TWU to cease being a Christian university. TWU is a private entity that requires its students to sign a covenant that prohibited homosexual conduct, even if they were in a legally recognized same-sex marriage. If you do not, you are not allowed entrance.

But that is not all. TWU has stepped into the public sphere by requesting a law school and requesting a public entity to recognize it. The law society is a public regulating body that makes decision in ways as to protect the public good. Our society, as a collective has renounced discrimination based on sexual orientation, in the same way we have prohibited discrimination based on sex and race.

When the BC Law Society accredited TWU, it was in essence an endorsement of the discriminatory practices this private entity engages in and sent a message to the public that discrimination against gay people was ok, even though they are protected under the Charter and even though same-sex marriages are legally recognized. This is not in the public interest and does not protect the public interest, which includes acceptance of gay people.

TWU can go ahead with its anti-gay admission policies. But, it is not entitled to have a public regulatory body, that is supposed to act in the public interest, publicly endorse their privately held beliefs and discriminatory practices. If it does, we are taking a step backwards from so many years of hard work to recognize the human rights of gay people.

You can't say gays can simply go to another school. Law school admissions are limited. Inevitably, there will be situation where a gay student may wish to attend law school at TWU, but only because it is a law school (and a gateway to the legal profession) and not because they want to attend TWU. But they can only attend if they sign a covenant that is anti-gay and would be under threat of discipline and expulsion. If they don't sign, no admission. By having the law society accredit TWU, it is allowing and endorsing this discriminatory admission practice.

I read urge you to read on bencher's submissions http://t.co/InLx6T7L9b
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Paul G
To "R. Wroe" and your message of May 02, 9:43 pm: I don't wish to appear pedantic (uh oh, here I go...) but you were not ever "called to the bar" when you appeared in British Columbia Supreme Court. Instead, what happened was that you were allowed to appear "pro se", because it is every citizens right to have access to the courts (that is the actual constitutional/common law privilege to which you were rely upon when appearing in court as a lay-litigant). THAT is a huge difference from the suggestion that you were "practicing law" (you were not; you were representing yourself in a court proceeding, which is but one small part of what is generally considered the "practice of law"). The Law Society of British Columbia has some pretty clear rules on the "unauthorized practice of law"; you should check them out...
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MikeD
"Law societies are the ultimate gatekeepers of the profession..."
No, they are not. The courts are. And the courts, based upon the Rule of Law, will let these law societies know what that is all about.
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