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.