Tony Wilson is a Vancouver lawyer, a bencher of the Law Society of British Columbia and a regular business columnist with The Globe and Mail. His opinions do not reflect those of the Law Society or any other organization.
I am a bencher of the Law Society of British Columbia and one of 20 out of 26 benchers who voted in favor recognizing law degrees from a proposed law school at Trinity Western University despite a covenant that bars sexual intimacy other than within a marriage between a man and a woman.
One media report wondered how could “so many intelligent and articulate people clearly see and abhor discrimination yet are unwilling to do anything about it.” Another said that our decision was “misguided and cowardly because it hides behind a 13-year-old split ruling by the Supreme Court of Canada.”
A petition circulating among lawyers in British Columbia has received a sufficient number of votes to require the B.C. benchers to hold a special general meeting to consider a reversal of our decision. And despite our 20-6 vote to approve a law School at TWU, the benchers of the Law Society of Upper Canada declined the accreditation of TWU’s Law School on April 24. The next day, Nova Scotia’s law society conditionally approved accreditation, provided that TWU drops the policy prohibiting same-sex intimacy.
Alberta, Saskatchewan and other provincial law societies have effectively adopted the position of B.C. and the Federation of Law Societies, making Ontario and Nova Scotia outliers on this issue.
But this makes a complicated situation all the more complicated because of a mobility agreement among all law societies that permits graduates from an institution in one province to article and subsequently practice in another.
My decision to approve TWU wasn’t misguided or cowardly, nor was the decision of the 19 other benchers who voted the way I did. I did not “hide behind” a 13-year-old split ruling by the Supreme Court of Canada. An 8 to 1 decision is by no means “split”, and a 13-year-old decision is hardly old enough for the Supreme Court of Canada to reverse itself.
Despite being an atheist with “no horse in this race,” I voted the way I did because of something called the rule of law, which among other things, dictates that courts and administrative bodies like ours shouldn’t cherry pick the laws we like from the ones we don’t. I don’t believe we can choose to disregard the leading case on this issue just because we don’t like the case or we don’t like the covenant. From what I saw, I don’t think anyone liked the covenant.
In addition to more than 800 pages of submissions from Canadians who were invited to comment on TWU’s application, I read a number of legal opinions from some of Canada’s leading lawyers, who advised us that the Trinity Western University v. B.C. College of Teachers case was still the law of Canada. That 2001 case, from the Supreme Court of Canada, determined that the B.C. College of Teachers could not deny accreditation of TWU’s teaching degree (and those who graduated from such program) because TWU insisted upon a similar covenant from its students. “For better or for worse” the Court said, “tolerance of divergent beliefs is a hallmark of a democratic society.”
I believe that the benchers must follow the decisions of higher courts, particularly the Supreme Court of Canada. That’s the way our justice system works. Otherwise the law is nothing more than the political, ethical and unpredictable partialities of one judge, and laws developed in this fashion are neither fair, consistent nor predictable. That’s one reason why we have the Supreme Court: To tell lower courts, and other judicial and quasi-judicial bodies what the law is, and how it should be interpreted and applied.
One of the most persuasive submissions was from the B.C. Civil Liberties Association, (an organization not known to shy away from protecting the rights of the LGBTQ community). The BCCLA took the position that its commitment to a society in which LGBTQ people are free from unlawful discrimination on the basis of sexual orientation did not give anyone licence to discriminate against others on the basis of their conscientiously held religious beliefs, nor to deny them their fundamental freedoms. “For the Law Society to deny TWU’s application for accreditation” they said “would itself be contrary to law, as established by the Supreme Court of Canada, and would result in unlawful discrimination against and infringement of the fundamental freedoms of those who seek only to be able to study law and be allowed entry to the legal profession without discrimination based on their religious beliefs.”
Unfortunately, critics of the B.C. benchers seem to be overlooking the position of the BCCLA on the issue of religious freedom in Canada. It would appear that the majority of the benchers of the Law Society of Upper Canada and Nova Scotia didn’t think it was important either. To me, it was definitive.
Some critics have argued that a law school at TWU may, by virtue of its Christian orthodoxy, create intolerant lawyers who would discriminate against gays and lesbians despite the fact that no teachers who have ever graduated from TWU’s teaching program have been cited or disciplined for such conduct.
Others critics have suggested that one can’t satisfactorily teach ethics at a faith-based institution that does not recognize gay marriage (opening up the question as to whether lawyers of faith can teach ethics at Canada’s existing law schools). I told my colleagues at bencher table that these arguments were absurd.
If the TWU application had been rejected by the B.C. benchers, would our law society be obliged to reject applicants who received their law degrees from other faith-based law schools in the United States and who may have actually practiced in the U.S.? And should we go further down the rabbit hole and reject students who attended TWU as undergraduates, but who received their law degrees at Osgoode Hall or U of T?
Some have suggested that the law has changed since that TWU 2001 B.C. teachers’ ruling and that it might be decided differently today, especially in the light of the Civil Marriage Act, which legalized gay marriage. The many legal opinions our law society obtained on this matter indicated the Supreme Court would not reverse itself on that issue today.
However, if the Supreme Court of Canada somehow looks at this issue again and reverses itself, I’m fine with that.
Why? Because I believe in the rule of law, and the rule of law must be paramount in a free and democratic society.