Trinity Western University is in an Ontario court Monday morning to challenge the Law Society of Upper Canada's decision not to accredit its proposed law school.
It is a fight the university won earlier this year when Nova Scotia's Supreme Court ruled against the decision by that province's law society against granting accreditation to the yet-to-be-opened law school. The decisions of this week's court case in Ontario and another in B.C., which is set to be heard in August, are expected to end up at the Supreme Court.
"The outcome of the dispute has important implications for the equality rights of Canadians and the degree to which they can be stunted by the beliefs of others," said Douglas Judson, one of the directors of Out on Bay Street, a group for gay, lesbian and queer law school students and graduates.
Mr. Judson's group is one of several across the country who are working together on the case.
Trinity Western University's Community Covenant Agreement asks students to agree to abstain from sexual intimacy outside of heterosexual marriage. If students contravene the agreement, the school claims it has the right to kick them out. Not only does the provision infringe the Charter of Rights, critics argue, but it makes the school unsuitable to teach ethics or constitutional law.
The school has argued that it does not discriminate against gays or lesbians and only bans their sexual expression. That "hate the sin, love the sinner" construct is outdated, Out on Bay Street's factum argues.
In their factum for the court, however, the university's lawyers say the covenant will have no impact on the public.
"There is no evidence that TWU graduates will discriminate against clients, employees or the public," the factum says.
The university claims the law society acted beyond its jurisdiction and made a decision that "unreasonably" focuses on only one Charter value – equality of rights based on sexual orientation – while ignoring other Charter values like freedom of religion.
The federal government agrees with the school: It filed its own factum in which it calls the decisions from Ontario and B.C. not to accredit the school "disproportionate" and unnecessary to serving the public interest.
When it ruled against the Nova Scotia barristers' society, the provincial court said that TWU did not have to abide by the same rules as a government body.
"Like churches and other private institutions [TWU] does not have to comply with the equality provisions of the Charter," wrote Nova Scotia justice Jamie Campbell.
Still, opening a law school that is unlikely to attract gay or lesbian applicants, or asks them to stay in the closet, limits accessibility, argue other student groups that have filed factums against TWU.
"The TWU Community Covenant Agreement troubles us because it imposes a 'queer quota' – limiting the number of pathways available to LGBTQ students to join the profession, and ergo the judiciary and a number of other important public offices and advocacy roles in Canadian society," Mr. Judson said.
The case also has professional ramifications for the law profession.
Several provincial law societies have decided to allow graduates from the Christian-based B.C. university to practise. The school had originally been scheduled to open in 2016. Should TWU law school graduates not be able to practise in every province, the national mobility of lawyers would be in question.
If TWU pursues its case to the Supreme Court, it will be asking the court to affirm its 2001 decision. At the time, the court ruled that the B.C. College of Teachers could not deny accreditation to TWU's education faculty as the curriculum did not teach discrimination.
With a report from The Canadian Press