Friday, 12 August 2016

Was the Law Society prejudiced?

Trinity Western University is a private institution in Langley, British Columbia. Founded by the Evangelical Free Church of America, it opened as a junior college and then it obtained the right to grant university degrees.  Trinity Western aimed to add a law degree to its offering of 42 undergraduate majors and 17 graduate programs. That university`s objective has situated their aims right into the spotlight of Canada’s legal community.  Its degrees, including those in nursing and teaching, have been recognized as academically sound in British Columbia and elsewhere. Its enrollment approximates 4,000.
In December 2013, the Federation of Canadian Law Societies approved Trinity Western’s proposed law degree. Then the Nova Scotia Barristers’ Society undertook broad consultations that culminated in a resolution and regulation to restrict the ability of Trinity Western’s law graduates to article or practice law as lawyers in Nova Scotia.

Trinity Western and Mr. Volkenant, a prospective law student, challenged the Society’s statutory authority to pass the resolution and regulation. They also submitted that, if the resolution and regulation were intra vires (beyond the power) of the regulation, then they infringed the applicants’ religious and associational freedoms under the Charter of Rights and Freedoms. A judge of the Supreme Court of Nova Scotia agreed. The judge held that the resolution and regulation overstepped the Society’s statutory authority and in the alternative, the Society unjustifiably infringed the Charter freedoms of Trinity Western and Mr. Volkenant. The Society then appealed to the Nova Scotia Court of Appeal.

It was not Trinity Western’s academic standards that have attracted its critics’ attention. Rather, it was and still is the Community Covenant to which all students and staff must adhere.  The Covenant is an encompassing code of conduct that, in addition to mundane items, prohibits sexual intimacy outside the marriage between a man and a woman. In other words, common-in-law marriages were forbidden.

Before I proceed further in this case, I want to tell you about a similar ruling by a religious entity. The entity was a Anglican church in Toronto in which I was the assistant organist and the founder and head of that church`s young adult`s organization. At that time I was living with a woman (not the one I married years later) and the minister of that church told me that if I didn`t cease living in sin, I should leave his church. I left his church and the organization I created for his church folded up and it was never replaced. This all occurred because of a religious twit who obviously had no concept about what was already acceptable in our modern society. 

Excerpts from the Covenant include:

“The TWU community covenant involves a commitment on the part of all members to embody attitudes and to practise actions identified in the Bible as virtues, and to avoid those portrayed as destructive. Members of the TWU community, therefore, commit themselves to:
“Observe modesty, purity and appropriate intimacy in all relationships, reserve sexual expressions of intimacy for marriage, and within marriage take every reasonable step to resolve conflict and avoid divorce.

In keeping with biblical and TWU ideals, community members voluntarily abstain from the following actions:

Sexual intimacy that violates the sacredness of marriage between a man and a woman:

According to the Bible, sexual intimacy is reserved for marriage between one man and one woman.” unquote

The Covenant governs the student’s term at Trinity Western in British Columbia. It does not govern post-graduation activities, such as articling or law practice. Discipline for non-compliance may include suspension or expulsion from Trinity Western.

The Covenant has prompted a harsh reaction from the legal community and society in general. It is castigated as a discriminatory infringement of legally protected equality rights of members of the LGBTQ community.

On the other hand, Trinity Western and its supporters say the Covenant manifests their genuine beliefs that are protected in a pluralistic society governed by constitutional freedoms of religion, conscience and association.

I have to agree with Trinity. If the students don’t like living under the terms of the Covenant, they can choose another University to attend. Trinity’s Covenant is probably no different than institutions that train ministers and priests. 

However, the issue in this article and before the court is and was not the right or wrong of the University’s Covenant. It is about whether or not the governing bodies of lawyers could deny Trinity’s law graduates the right to practice law.

Having developed its plan for a law school and its proposed curriculum, Trinity Western sought approval from the Federation of Canadian Law Societies. The Federation is the national coordinating body of the 14 law societies that govern lawyers and notaries across Canada. It has adopted the uniform standards for law school’s curricula. One of its functions is to develop national standards of regulation. Each law society in the common law provinces and territories requires applicants for bar admission to hold a Canadian common law degree or its equivalent.

A letter dated the 22nd of April 2013 mailed by the Federation advised TWU that it would be establishing a Special Advisory Committee to consider the effect of the Community Covenant on the Federation’s decision whether or not to approve TWU’s proposal.

The Special Advisory Committee released its final report in December 2013. It found that there was no public interest reason for preventing graduates of the JD Program at TWU from practicing law. The Special Advisory Committee acknowledged the arguments raising important issues of equality rights and freedom of religion. If the Approval Committee concluded that the TWU proposed law school met the national requirement, then there would be no public interest bar to the approval of the school.

The Approval Committee approved the law degree from TWU’s proposed law school and in doing so referenced and relied on TWU’s statements that it was fully committed to addressing ethics and professionalism, that it recognized its duty to teach equality and to promulgate non-discriminatory practices, and that it would ensure that students understood the full scope of protections from discrimination based on sexual orientation. That approval would be followed by an annual review.

The Nova Scotia Barristers’ Society, (NSBS) through its 21 member Council, regulates the legal profession in the province of Nova Scotia. Trinity Western’s Covenant was of concern to the Society. In January 2014, the Society began a consultative process to determine its response should Trinity Western’s law graduates apply for articles in Nova Scotia. After two public meetings and hearing Trinity Western’s presentation, and with the benefit of over 150 written submissions, on April 16th, 2014 the Society’s Executive Committee submitted a report to the Society’s Council.

At its meeting on April 25th, 2014, the Society’s Council reported its conclusion with a recorded a vote of 10 to 9 with one abstention. The resolution read in part;

Council resolves that the Community Covenant is discriminatory and therefore Council does not approve the proposed law school at Trinity Western University unless TWU either:

i)       exempts law students from signing the Community Covenant; or

ii)      amends the Community Covenant for law students in a way that ceases to discriminate.

Does the Covenant really discriminate its students?  If it does, then Catholic priests would also be discriminated since they too have to live by similar edicts if they wish to serve their church as priests. If they wish to ignore those edicts, they have the option of leaving their posts. The same right applies to the students of Trinity. Those who remain as students of Trinity do so on their own volition.

Section(2) Subsection (1) of the Canadian Charter of Rights and Freedoms does not preclude (make impossible) any law, program or activity that has as its object the amelioration (betterment) of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. Section 1, subsection (c) of the Canadian Bill of Rights guarantees everyone In Canada the right to their freedom of religion. 

I will refer you to a California case (Re Hinckly’s Estate) a case heard in 1881. The Court said in part;

“The word “religion” in its primary sense imports as applied to moral questions only a recognition of a duty to obey conscious restraining principles of conduct.” unquote

On January 28, 2015, the judge of the Supreme Court of British Columbia issued a written decision, followed by an Order on March 26, 2015 and a costs decision on April 21, 2015. The judge granted Trinity Western’s motion for judicial review, quashed the Society’s Resolution and held that the Amended Regulation was invalid. He directed the Society to pay costs of $70,000.

Justice Campbell identified an administrative issue, and a constitutional issue. He said;

“There are really two broad legal issues. The first is the administrative law question of whether the NSBS, in refusing to accept a law degree from TWU, was attempting to regulate a law school or was upholding and protecting the public interest in the practice of law in Nova Scotia. The former it cannot do. The latter it can.

“The second issue is a constitutional law matter. It is whether the NSBS appropriately considered and applied the balancing of the Charter rights to equality and freedom of religion.” unquote

“The (Law Society’s) Amended Regulation requires that, before denying a Trinity Western law graduate, the Council must determine that Trinity Western “unlawfully discriminates” under the Charter or Nova Scotia’s Human Rights Act. The Charter does not apply to Trinity Western. The Nova Scotia Human Rights Act does not apply to Trinity Western’s conduct entirely in British Columbia. Trinity Western did not “unlawfully” discriminate under either enactment. The Resolution would not satisfy the Amended Regulation’s stated condition.” unquote

“The Resolution is unauthorized and unreasonable. We dismiss the appeal from the judge’s order that quashed the Resolution.” unquote

What this decision means is that the Nova Scotia Barristers’ Society cannot bar the law students of Trinity University from practicing law in Nova Scotia. 

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