I stated in the first segment that TWU will very likely soon find itself embroiled in a legal case to decide the future of its potential law school. This case will likely be between TWU and the several provincial law associations who are trying desperately to find ways to justify blocking TWU graduates from the bar (effectively eliminating their ability to practice law in those provinces). Leading the charge in this respect are Clayton Ruby, formerly of the Law Society of Upper Canada and Elaine Craig of the Schulich School of Law at Dalhousie University. Both are advocating for every provincial bar association to refuse to accredit TWU graduates, effectively making a TWU law degree worthless in Canada, and (hopefully) freezing the proposal in its embryonic stage.
Strangely enough, it was only a few years ago that the provincial bar associations banded together to informally delegate accrediting authority to a national body (the Federation of Law Societies of Canada) in an attempt to standardize the process. Now that the Federation has given the TWU proposal preliminary approval, certain provincial federations have decided to claw back their accrediting power by ignoring the Federation’s ruling. As far as I can tell this retraction is fully legal, but it does create an unfortunate precedent for the Federation, which was supposed to revolutionize the accrediting process in Canada and is now somewhat of a lame duck.
Additionally, the provincial bar societies have no authority over the creation of the law school itself. All they can threaten to do is bar TWU’s potential law graduates, inflicting damage upon the individual students rather than the institution which the associations actually oppose. Presumably these students would be barred by the associations because of their assumed lack of competence (resulting from a ‘flawed’ educational environment), forcing the associations to discriminate against them based on their potential religious bias.
It doesn’t take a lawyer to realize how illegal that would be.
As TWU president Bob Kuhn says, “Speaking plainly, to ban TWU’s proposed law school graduates from membership in the bar because of shared religious beliefs is, in my view, intolerant. It presupposes that religious belief makes one less able to practice law. We have long ago moved away from prejudging behaviours based on personal beliefs or other inherent attributes…
In short, asking law societies to reject graduates of a TWU law school because of its religious nature is discriminatory on the basis of religion. There is no question of TWU’s constitutional and legal right to exist as a religious educational community. It is regrettable that much of the public debate and dialogue within the bar about discrimination at TWU has completely ignored any balancing of rights or even considered the religious freedom issues that were so critical to the Supreme Court of Canada’s decision.”
Even the BC Civil Liberties Association has expressed deep concern over the possibility of TWU graduates being excluded from participation at the bar in this manner.
But what are those religious freedoms that Kuhn speaks so highly of. Does absolutely anybody claiming to be ‘religious’ have the right to run roughshod over other Canadians? Why is it so difficult to find a balance between individual rights in a communal society of diverse people with diverse ideologies?
The problems start in the Charter of Rights and Freedoms, in the famous section 15:
“15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”
It is obvious that the Charter guarantees both the gay student’s right not to be discriminated against, and Trinity Western’s right to uphold the collective religious beliefs of its constituents as a private institution. In 2001, the balance of these two competing rights was interpreted (in the case involving the BC College of Teachers) to allow TWU to have a school of education despite the school’s community covenant. Ruby and Craig would argue that two important precedents have been set since that case. The first is the Whatcott case, but since Whatcott was an embarrassment to the Canadian legal system as we know it, I don’t think it’s worth discussing.
The second is Bill C-38, which (among a lot of other things), allowed homosexual couples to marry legally in Canada. While this Bill was a huge victory for same-sex marriage activists, it should not be interpreted as changing the balance of freedoms guaranteed in the Charter. Consider for example an often-forgotten portion of Bill C-38:
“3.1 For greater certainty, no person or organization shall be deprived of any benefit, or be subject to any obligation or sanction, under any law of the Parliament of Canada solely by reason of their exercise, in respect of marriage between persons of the same sex, of the freedom of conscience and religion guaranteed under the Canadian Charter of Rights and Freedoms or the expression of their beliefs in respect of marriage as the union of a man and woman to the exclusion of all others based on that guaranteed freedom.”
The above section was added specifically to protect religious individuals and institutions (like TWU) from being prosecuted after the passing of Bill C-38. Some might find it archaic, even backwards that such a clause was added, but nevertheless it was an important concession to the importance of religious freedom in Canada. If Clayton and Craig get their way it will be rendered meaningless, and perhaps it was only meant to be a temporary concession all along.
In conclusion, the precedents and the law in the potential lawsuit are both in TWU’s favour. What the potential defendants (the bar associations) are hoping is that they will be able to successfully argue that Canadian social and legal landscapes have changed significantly enough in the last decade to justify a favourable ruling. The mere fact that they believe this to be a possibility shows exactly how fluid a democratic concept of ‘law’ actually is. Often we as Canadians like to think of our legal and political institutions as bastions of solidity amidst the currents of time, but in fact they exist with the constant possibility of flux.
If the laws do shift against TWU, and the bar associations manage to sink the potential law school, it will go a long ways towards undermining religious freedom in Canada. In essence it will create a hierarchy of freedoms in the Charter, with some being granted greater important than others, as determined by the zeitgeist of society. Such a ruling will also open up opportunities for lawsuits against TWU’s hiring practices, lawsuits against other religious institutions, and the creation of state-sanctioned religion in the place of authentic religious practice.
Some of you might think this is a good thing, but remember Stackhouse’s comment from part 1: “Today, however, Trinity Western is being attacked by those seeking to impose a single set of values – their values – on all Canadians.”
After all, lawyers who feel themselves to be above the law are very dangerous creatures.