Concerned law professors are pressing their provincial societies to rethink recognizing graduates of a proposed new law program at Trinity Western University, a faith-based school that prohibits same-sex intimacy.
The Nova Scotia Barristers' Society has already promised to review the B.C. university's proposed law school, and Ontario's Law Society of Upper Canada is preparing a similar debate for April. Even B.C.'s law society will decide late next month whether it should revisit the school's accreditation in its own province.
Trinity Western won approvals in December to open a law school over objections from lawyers, students and LGBT groups that it discriminates against homosexuals and should not train lawyers. The university has a "community covenant" requiring students and staff to abstain from "sexual intimacy that violates the sacredness of marriage between a man and a woman," or face discipline.
A special committee of the Federation of Law Societies of Canada ruled there is "no public interest reason" to deny future Trinity Western graduates admission to the bar, and B.C.'s government agreed. But it marked the first time in recent memory that a law school's suitability has been seriously challenged, and the university's victory may be short-lived.
"We do want to make sure that we make an extra effort in this case," said René Gallant, president of the Nova Scotia Barristers' Society.
Each law society's hesitation is a setback. Trinity Western plans to open its law school in 2016, but provincial reviews could cause delays, said president Bob Kuhn. If some law societies choose not to recognize the new school, its viability could be in doubt. "It's disappointing because we feel like we played by the rules," he said. "It strikes me as a double jeopardy situation."
Clashes between religious and equality rights have lately been a combustible topic on campuses, and Trinity Western's proposal has pulled lawyers into the debate, pressing them to reconcile two entrenched freedoms under their duty not to discriminate. Some lawyers also fear that if the provinces splinter over the controversy, it could threaten national mobility agreements that allow lawyers licensed in one province to practise across Canada – a system that took more than a decade to erect. A split decision would be unprecedented, and its impact uncertain.
University of British Columbia law professors passed a motion urging the Law Society of B.C. to hold "a transparent, public process of inquiry" to consider the effects of "effectively excluding LGBTQ people" from Trinity Western's law school. The society is accepting submissions and will decide on Feb. 28 whether to revisit Trinity Western's accreditation in April.
Dalhousie University's law professors went a step farther. A unanimously approved motion sent to the Nova Scotia Barristers' Society argues equality concerns outweigh religious freedom issues in this case, and that the Barristers' Society should "refuse to approve" Trinity Western law degrees. "TWU seems to have isolated just one segment of the population for second-class status," said Archibald Kaiser, the Dalhousie law professor who moved the motion. "And I don't see how it could possibly be acceptable to demean some members of its student body or to exclude some people from its faculty."
Mr. Kuhn countered that it is his students and graduates who are facing discrimination, based on their religion. "Is religious freedom going to be given any importance in this country," he said, "or is it simply going to be relegated to some separate minority right?"
Other schools could soon join the debate, as the law faculties at York University, the University of Victoria and the University of Windsor are each expected to discuss the issue in the next month.
More than 30 law professors at the University of Alberta and University of Calgary jointly urged the Law Society of Alberta to "reconsider its decision" to accept the Federation of Law Societies ruling. But Alberta law society president Carsten Jensen said he would only welcome a review if it is undertaken nationally, by judicial review or through the federation.
"From our perspective," he said, "having different outcomes in different provinces is a direct threat to the national mobility regime."