Friday, 10 July 2015

Should the law school loses its credibility?

Trinity Western University is a 4,000-student, evangelical Protestant college in the Vancouver suburb of Langley. It has been seeking to open a law school, but has struggled to obtain accreditation in several provinces in Canada. The reason for this is that the school makes all students and professors sign a covenant that among other things, forbids all sex with other persons other than that within heterosexual marriage. It is a rule opponents say that discriminates against both gays and lesbians who do not adhere to marriages involving the opposite sex. The university pits religious freedoms against same-sex equality rights, with each side saying one is discriminating against the other. The university's covenant goes so far as to forbid any form of sexual intimacy outside heterosexual marriage, which has led to similar legal battles for the university in other provinces.

The university's covenant also includes requiring students to abstain from gossip, obscene language, prejudice, harassment, lying, cheating, stealing, pornography, drunkenness and sexual intimacy prior to marriage. Those aspects of the covenant are not necessarily wrong and are not considered contentious by the Law Societies in Canada.

Individuals who specifically do not believe in marriage, or LGBT (lesbian,  gay,  bisexual, and transgender) persons, may attend Trinity Western University but they must first sign the community covenant and thus, in essence, disavow not only their beliefs but, in the case of LGBT individuals, their very identity. That flies in the face of human rights of which everyone in Canada benefits and is protected. 

Trinity Western finalized its proposal for a School of Law in 2012, after more than 20 years of planning, extensive consultation, and detailed preparation. The proposal was fully approved in December 2013. The University says that the University’s School of Law will be designed to train lawyers who can think critically, practice efficiently and serve their clients and communities with professionalism and ethical integrity.

Ethical integrity is one form of integrity. What does ethical integrity mean? Every single person is made up of some kind of ethics which they show from time to time. They may have work based ethics, personal ethics and familial ethics. Ethical integrity is showing these ethics and standing by them no matter what may confront them. People who have strong ethical integrity will stand up for what they are, what they believe in, and also take responsibility for what they do. This is a very important quality that all persons should possess. Without it, a person is indifferent to the wellbeing of others.

A lawyer who has no ethical integrity, is a lawyer who will do anything, no matter how much  it may be improper, to get ahead in his or her endeavors at the cost of others. A lawyer who is prejudicial against gays, lesbians, bisexuals and transgendered people could hardly be expected to be seriously considered a person of ethical integrity.

The law school in the university has faced unprecedented opposition however not in regards to its quality of education, but as to whether all the Law Societies in Canada will accept its graduate law students as lawyers.

The NSBS had characterized TWU’s Community Covenant as “unlawful discrimination”.  It is not unlawful. It may be offensive to many but it is not unlawful. TWU is not the government. Like churches and other private institutions it does not have to comply with the equality provisions of the Canadian Charter of Rights and Freedoms. It had not been found to be in breach of any human rights legislation that applies to it. Counsel for the NSBS described TWU’s proposed law school as a “rogue” law school. It would be so only in the sense that its policies are not consistent with the preferred moral values of the NSBS Council and doubtless many if not a majority of Canadians.  The Charter is not a blueprint for moral conformity. Its purpose is to protect the citizen from the power of the state, not to enforce compliance by citizens or private institutions with the moral judgments of the state.

The question is; “Are the Law Societies within their rights to regulate student conduct agreements at a private university, because of the long history of Law Societies working to ensure the “meritocracy” and “diversity” of the legal profession?” That question was raised in the Supreme Court of Nova Scotia between Trinity Western University and Brayden Volkenant and the Nova Scotia Barristers’ Society.

What one person sees as having the strength of moral convictions; is on the other hand, sanctimonious intolerance to another. As with a lot of beliefs, it depends a great deal on one’s perspective of his or her orthodoxies, secular or religious beliefs. 

The NSBS had argued that it would be wrong for it to countenance or condone what counsel described as the “homophobic” policies of TWU. He said that many people in Nova Scotia are offended by the TWU policy. For some, particularly LGBT people, living in the knowledge that an institution with policies such as TWU’s would have its degree recognized in Nova Scotia, adds to the considerable stress they already experience in their lives. 

The NSBS through its counsel had said that it had hoped that the court’s decision, along with decisions of other law societies, would prompt TWU to change its policy on same sex marriage. It is hardly a pressing objective for the Law Society to use its power to compel a legally functioning private institution in any province in Canada to change a legal policy in effect in Canada because it reflects a legally held moral stance that offends the NSBS, its members or the public.

The Nova Scotia Barristers’ Society (the “NSBS”) position was that it will recognize law degrees to be granted by the proposed law school at Trinity Western University (“TWU”) but only if the institution changes its policy on student conduct. That university’s policy prohibits sexual intimacy for students outside traditionally defined marriages (between a man and a woman). However, the NSBS sees it as a matter of equality whereas the TWU sees it as a matter of religious freedom.

This decision the court was going to make wasn’t about whether LGBT equality rights are more or less important that the religious freedoms of Evangelical Christians. It wasn’t a value judgment in that sense at all. It was first about whether the NSBS had the authority to do to deny recognition of the law school’s graduate students. It is also about whether, even if it had that authority, the NSBS reasonably considered the implications of its actions on the religious freedoms of TWU and its students in a way that was consistent with Canadian legal values of inclusiveness, pluralism and the respect for the rule of law. In that sense, it is a value judgment.

The NSBS can only legally do what it has been given the power to do by legislation.  It acts under the authority of the Legal Profession Act  to regulate the practice of law in Nova Scotia. That Act does not give the NSBS the power to require universities or law schools to change their policies since its jurisdiction doesn’t reach that far. The Law Society does have however jurisdiction to deal with the educational and other qualifications of people who apply to practice law in Nova Scotia.  If TWU graduates were not prepared by virtue of their education to practice law in Nova Scotia, or were inclined by virtue of their training at that institution to be intolerant, then refusing them admission would not be done regulating the law school. It would be done by regulating the qualifications and competence of Nova Scotia’s lawyers.

Did the NSBS reasonably considered the constitutional freedoms of TWU and its graduates? The issue was not whether the NSBS was right or fair or morally justified or even theologically sound to deny the right of equality to same-sex spouses in the context of life at a private religious university. The issue was about the action taken by the NSBS. The NSBS as a state actor has to comply with Canada’s Charter of Rights and Freedoms. TWU and its students are protected by the Charter and to dictate how the4 students should live their lives is in conflict with the Charter.  

The legal authority of the NSBS cannot extend to a university because the Law Society is offended by the University’s policies or considers those policies to contravene the human rights of people in Nova Scotia. Irrespective of the extent to which NSBS members or members of the community are outraged or suffer minority stress because of the law school’s policies, it does not amount to the Law Society having jurisdiction over the university and its policies.

The Federation of Canadian Law Societies decided to recognize TWU law degrees as suitable to prepare graduates for legal practice. It was agreed that graduates from TWU’s proposed law school would be properly trained and qualified to practice law. It was also agreed by the other Law Societies that the graduates from TWU would be no more likely to discriminate than graduates of other law schools. That being so, the court concluded there was nothing wrong with TWU law degrees or TWU law graduates when it said,  “I have concluded that the NSBS did not have the authority to do what it did. I have also concluded that even if it did have that authority, it did not exercise it in a way that reasonably considered the concerns for religious freedom and liberty of conscience.

In my respectful opinion, I think that decision was a good one. How people think and act based on their beliefs is not in the preview of a Law Society. However, if their beliefs interfere with the rights of their clients or anyone else, then the Law Society has a right to intercede and discipline that lawyer accordingly.

People have the right to attend a private religious university that imposes a religiously based code of conduct. That is the case even if the effect of that code is to exclude others or offend others who will not or cannot comply with the code of conduct. Learning in an environment with people who promise to comply with the code is a religious practice and an expression of  religious faith. There is nothing illegal or even rogue about that. To many, that is an uncomfortable fact of life in a pluralistic society. Requiring a person to give up that right in order to get his or her professional education recognized is an infringement of religious freedom which is contrary to the rights given to citizens as per the Charter.  Private religious schools are not limited to training members of the clergy, theologians, missionaries or those who want professional law degrees but do not want to practice in those professions. Those institutions already produce nurses and teachers and grant any number of academic degrees that are widely accepted. Rights and freedoms are not absolute. Sometimes there has to be room for compromise. 

There will always be an element of stress that is inherent in living in a multicultural society where beliefs and practices that offend majority values are not only on display, but are actively tolerated. Society does not seek to eradicate the practices or re-educate the believers and change their practices but recognizes their rites and their organizations for state purposes such a solemnization of marriage, tax exemptions and charitable status etc.

There is a difference between recognizing a degree and expressing approval of the moral, religious, or other positions of the institution that granted the degree. The refusal to accept the legitimacy of institutions because of a concern about the perception of a Law Society endorsing their religiously informed moral positions would have a chilling effect on the liberty of conscience and freedom of religion. Only those institutions whose practices were not offensive to the Law Society’s approved moral consensus would be entitled to those considerations. That would place the Law Society in a dictatorial position not unlike that what took place by the State in Germany under the Nazi heel.

The Ontario Superior Court found that the denial of accreditation did violate Trinity’s freedom of religion, but that this violation was acceptable because of the greater good of protecting equality. Trinity tried to argue that its covenant was non-discriminatory, because it only governed behavior rather than beliefs or innate traits, but the court said that explanation wouldn’t fly. The Divisional Court agreed.

It is my respectful opinion that those two court’s decisions were wrong. The University will probably appeal the Divisional Court’s decision to the Ontario Court of Appeal.  The University will, in my opinion, win their case. My reasoning is based on the following;

The Supreme Court of Canada dealt with a similar case. The TWU applied to the B.C. College of Teachers (BCCT) for permission to assume full responsibility for the teacher education program.  The BCCT fulfills the role of gatekeeper to the profession of public school teaching. One of the reasons for assuming complete responsibility for the program was TWU’s desire to have the full program reflect its Christian views.  The BCCT refused to approve the application because according to BCCT, it was contrary to the public interest for the BCCT to approve a teacher education program offered by a private institution which appears to follow discriminatory practices. 

The court said in part; “While this case deals with the discretion of an administrative body to determine the public interest, the BCCT is not the only government actor entrusted with policy development.  Furthermore, its expertise does not qualify it to interpret the scope of human rights nor to reconcile competing rights.  The Court of Appeal was wrong in applying a lower standard to the findings of the BCCT with regard to the existence of discriminatory practices and whether any such practices create a perception that the BCCT condones this discrimination or create a risk that graduates of TWU will not provide a discrimination-free environment for all public school students.  The existence of discriminatory practices is based on the interpretation of the TWU documents and human rights values and principles.  This is a question of law that is concerned with human rights and not essentially educational matters.” unquote

At the heart of the appeal was how to reconcile the religious freedoms of individuals wishing to attend TWU with the equality concerns of students in B.C.’s public school system—concerns that may be shared by society generally.  While TWU is a private institution that is exempted, in part, from the B.C. human rights legislation and to which the Canadian Charter of Rights and Freedoms does not apply, the BCCT  was entitled to look to these instruments to determine whether it would be in the public interest to allow public school teachers to be trained at TWU.  

Any potential conflict between religious freedoms and equality rights must be resolved through the proper delineation of the rights and values involved.  Properly defining the scope of the rights avoids a conflict cases such as this one. As I more or less said earlier, neither freedom of religion nor the guarantee against discrimination based on sexual orientation is absolute.  The proper place to draw the line is generally between belief and conduct.  The freedom to hold beliefs is broader than the freedom to act on them.  Absent concrete evidence that training teachers at TWU fosters discrimination in the public schools of B.C., the freedom of individuals to adhere to certain religious beliefs while at TWU should be respected. Acting on those beliefs, however, is a different matter. 

For example, if a teacher in the public school system engages in any form of discriminatory conduct, then that teacher can be subject to disciplinary proceedings before the BCCT.  In this way, the scope of the freedom of religion and equality rights that have come into conflict can be circumscribed and thereby reconciled. There was a famous case in Alberta where a teacher taught his students that the Nazi Holocaust didn’t exist. He got about as much sympathy from the courts that a hunter would get from a grizzly bear standing behind him after having shot the bear’s cub.  

The freedom of religion, conscience and association as it exists in Canada coexists with the right to be free of discrimination based on sexual orientation.  Even though the University’s requirement that students and faculty adopt its standards, it creates differential treatment from other schools since it would probably prevent homosexual students and faculty from applying. However, one must consider the true nature of the undertaking and the context in which this occurs. 

Many Canadian universities have various traditions of religious affiliations. Religious public education rights are enshrined in section 93 of the Canadian Constitution Act, 1867.  Moreover, a religious institution is not considered to breach B.C. human rights legislation where it prefers to have adherents of its religious constituency in its institution. It cannot be reasonably concluded that while private institutions are protected, their graduates are de facto considered unworthy of fully participating in the institution’s activities.

While homosexuals may be discouraged from attending TWU, a private institution based on particular religious beliefs, if accepted by the university anyhow, cannot be prevented from later becoming teachers. Clearly, the restriction on freedom of religion must be justified by evidence that the exercise of this freedom of religion will, in the circumstances of such a case, have a detrimental impact on the public school system.  There is nothing in the TWU Community Standards, which are limited to prescribing conduct of members while at TWU that indicates that the graduates of TWU will not treat homosexuals in schools and elsewhere fairly and respectfully.  

The Supreme Court noted that there was no evidence that graduates from the joint TWU teacher education program were not competent public school teachers, and there was no evidence before that Court of any discriminatory conduct on the part of TWU-trained teachers.

Statutory interpretation of the BCCT’s “public interest” responsibilities should be purposive and contextual, not nebulous. Obviously the BCCT’s attitude towards homosexual teachers was that such teachers may sexually abuse their students or try to indoctrinate their students into their way of living as homosexuals. Of course, that kind of thinking is utter stupidity. 

The Supreme Court’s decision was as follows; “The British Columbia College of Teachers’ appeal is dismissed.”  

Since the Supreme Court of Canada ruled that graduates of the Teacher’s School of the Trinity Western University are eligible to be school teachers in British Columbia, it follows that graduates of the Law School of the Trinity Western University are also eligible to be members of the Law Society of Upper Canada and as such, be permitted to practice law in Ontario. If the Law Society of Upper Canada fights the rights of students of TWU from practicing law, they too will get the same sympathy from the appeal courts that other governing organizations got from that same grizzly bear.    

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