Legal Opinion on the Accreditation of TWU by Professor Emeritus Dianne Pothier of the Schulich School of Law at Dalhousie University

Tuesday, January 28, 2014


TO:                  J. René Gallant, President, Nova Scotia Barristers’ Society

 FROM:            Dianne Pothier, NSBS member #1982-0069 (non-practicing)

 RE:                  Trinity Western University’s proposed Law School

 DATE:            January 18, 2014

            I am writing in response to your invitation for comment on whether the proposed Law School at Trinity Western University should be recognized as conferring a common law Canadian law degree for the purposes of admission to the Nova Scotia Barristers’ Society.  I am writing as a member of the NSBS continuously since 1982 (mostly with non-practicing status) and as a Professor Emeritus of the Schulich School of Law.  In most years during my time on the Dalhousie Law Faculty, from 1986-2012, I taught either Public Law (with a focus on human rights law and Charter equality) or Constitutional Law or both.  I have also published extensively in these areas.

 TWU’s Community Covenant

        Trinity Western University is a private, faith based university affiliated with the Evangelical Free Church of Canada.  Faculty and staff are required to sign an annual faith statement.  Faculty, staff and students are required to sign a “Community Covenant” that commits them, inter alia, to “treat all persons with respect and dignity” and to abstain from “sexual intimacy that violates the sacredness of marriage between a man and a woman” (Community Covenant, s. 3). Students need not be adherents of the Evangelical Free Church faith, or any other Christian faith, but are nonetheless required to abide by the religiously-based code of conduct.  The Community Covenant not only commits signatories in respect of their own personal conduct, but also incorporates accountability for the conduct of others within the TWU community:

Ensuring that the integrity of the TWU community is upheld may at times involve taking steps to hold one another accountable to the mutual commitments outlined in this covenant.  As a covenant community, all members share this responsibility. Community Covenant, s. 5)

        Signatories of the Community Covenant further “understand that … I have also become an ambassador of this community and the ideals it represents.”  (Community Covenant, penultimate paragraph)  Even if done in a way that respects the “sinner,” this Community Covenant creates an unwelcoming environment for those involved in same-sex intimacy of any kind (whether within or outside marriage) and opposite-sex intimacy outside marriage.  This is blatant discrimination on the basis of sexual orientation and marital status.  In terms of employment and admission policies, however, this discrimination is permitted under British Columbia human rights legislation because TWU is exempt as a religiously-based private institution.   Nonetheless, the implications of taking a TWU degree into the public realm raise very different questions.

        The Federation of Law Societies split the assessment of the proposed TWU Law School into two issues: (1) whether the proposed TWU Law School meets the “national requirements” for knowledge and skills requisite for admission to a bar in a Canadian common law jurisdiction – mandate of the Approval Committee; and (2) whether there are other public interest issues that should preclude approval of the TWU Law School as a basis for admission to a bar – mandate of the Special Advisory Committee, and the subject of John B. Laskin’s legal opinion.  In my assessment, such a splitting of issues is artificial.  In both contexts, the issue is the same.  Does the discriminatory context of TWU as a private institution taint reliance on a TWU degree in the the public realm.

       The TWU Community Covenant is more than a statement of religious beliefs.  It is a commitment to enforcing a religiously-based code of conduct, not just in respect of one’s own behaviour, but also in respect of other members of the TWU community, including non-adherents of the faith.  It is also a commitment to being an ambassador of TWU’s ideals.  The extent to which the TWU Community Covenant is actually enforced is not the point.   TWU cannot rely on non-enforcement when the issue is admission to the practice of law where compliance with legal undertakings is sacrosanct.  The TWU Community Covenant is a fundamental aspect of the culture of the institution, which pervades much more than course content.

           The Federation’s Approval Committee limited itself to course content.

51 Although the course outlines for TWU's proposed Ethics and Professionalism and Constitutional Law courses are consistent with what one would expect for such courses, the members of the Approval Committee see a tension between the proposed teaching of these required competencies and elements of the Community Covenant. In particular, the Approval Committee is concerned that some of the underlying beliefs reflected in the Community Covenant, which members of faculty are required to embrace as a condition of employment, may constrain the appropriate teaching and thus the required understanding of equality rights and the ethical obligation not to discriminate against any person.  This tension appears to be reflected in the description of the mandatory Ethics and Professionalism course (LAW 602), which states that the course “challenges students to reconcile their personal and professional beliefs within a framework of service to clients and community while respecting and performing professional obligations and responsibilities.”

52. Based on the proposed course outlines and TWU's commitments and undertakings noted above, the Approval Committee concluded that the issue of whether students will acquire the necessary competencies in both Ethics and Professionalism, and Public Law is, at this stage, a concern, rather than a deficiency. (Approval Committee Report)

              The Federation’s Approval Committee relied on assurances from TWU that it appreciated such tensions, and would reconcile them. But the assurances were simple assertions, without any explanation as to how this would be done.  TWU said only that key cases on sexual orientation equality would be taught, and standard texts relied upon. (May 13, 2013 letter from Kevin G. Sawatsky, p. 4, Appendix to Approval Committee Report)  That could be done by teaching simply that Canadian equality law is inconsistent with their particular perspective on Christianity.  The real question is not what will be taught, but how it will be taught, i.e. will it be taught in a way that accepts that constitutional and legal equality dictates prevail over religious judgment.  TWU has not confronted that issue.  TWU is presumably not in a position to address that question without yet knowing who will be teaching the courses.  In ordinary circumstances, it would not be appropriate for the Federation’s Approval Committee or any bar society to probe deeply into the pedagogy of a Law School course.  But where there is such a stark tension between an institutional culture of discrimination and legal obligations of equality and non-discrimination, more than a statement of concern is warranted.

   Most lawyers probably face some degree of tension between their personal beliefs and the legal order, and must find a way to reconcile them in a way that respects the law.  Depending on the nature of the tension, that may range from easy to difficult to do.   Given the depth of opposition to same-sex sexual intimacy, and opposite-sex sexual intimacy outside marriage, incorporated into the TWU Community Covenant, the challenge to reconcile such deeply felt beliefs, and the commitment to enforcing them, with public responsibilities respecting equality is especially acute.  That should place a particularly high onus on TWU to explain, which it has not even begun to meet.

The SCC decision in BCCT v. TWU  

            Much of the discussion of TWU’s proposed Law School has involved debate over the impact of the Supreme Court of Canada’s decision in British Columbia College of Teachers v. Trinity Western University, [2001] S.C.R. 772.  I think a strong argument could be made that this case would be decided differently today by the Supreme Court of Canada.  That Court has not been averse to reversing itself, particularly in the area of constitutional and human rights law: e.g. Health Services and Support – Facilities Subsector Bargaining Association v. British Columbia, [2007] 2 S.C.R 391, incorporating a right to collective bargaining within constitutional protection of freedom of association, reversing the 1987 Labour Trilogy; British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees' Union, [1999] 3 S.C.R. 3 (Re Meiorin), adopting a unified approach to direct and adverse effects discrimination, reversing the earlier bifurcated approach; Saskatchewan Human Rights Commission v. Whatcott, 2013 SCC 11, modifying in part the definition of hatred in the context of human rights legislation prohibitions of hate speech.  However, it is quite speculative to contend that the SCC would be ready to reverse itself in BCCT v. TWU.  I am prepared to proceed on the basis that BCCT v. TWU remains good and binding law.  On that assumption, I respectfully disagree with the view of the Federation’s Special Advisory Committee, and the opinion of John Laskin on which it relied, that the BCCT v. TWU decision is determinative.  In my assessment, it can be distinguished.

            BCCT v. TWU involved an application by TWU for certification of its teacher training program.  The BCCT rejected the certification application, a decision that was held invalid by the majority of the Supreme Court of Canada.  The SCC recognized that the TWU Community Covenant raised serious concerns, but concluded it was improper to deny certification in the absence of specific evidence that TWU graduates as a group would actually discriminate against students.  To avoid a conflict between religious freedom and equality, the majority of the SCC drew a “line … between belief and conduct” (para. 36), leaving individual discriminatory teacher conduct liable to disciplinary proceedings (para. 37).  It is important to note the context of TWU’s application.  The status quo ante, which already had certification, was four years of education at TWU followed by a final year at Simon Fraser.  TWU’s new proposal was to replace the final year at Simon Fraser with one at TWU.  The majority of the SCC relied on the nature of that fifth year at Simon Fraser, where “[o]n the evidence, it is clear that the participation of Simon Fraser University never had anything to do with the apprehended intolerance from its inception to the present” (para. 38), questioning: “[a]fter finding that TWU students hold fundamental biases, based on their religious beliefs, how could the BCCT ever have believed that the last year's program being under the aegis of Simon Fraser University would ever correct the situation?” (para. 38).

 The Simon Fraser teacher training curriculum did not have any anti-discrimination component.  In contrast, Law Schools are mandated to teach legal principles of equality, in the constitutional and statutory context.  Furthermore, while public school teachers carry only the obligation of all members of the community not to discriminate in the provision of public services, lawyers have an extra level of responsibility.  Lawyers are potentially involved in the administration of constitutional and statutory equality and anti-discrimination provisions.  Thus there is good reason to impose a higher bar than in BCCT v. TWU, i.e. good reason for going beyond looking for specific evidence that TWU Law School graduates will, as a group, engage in discriminatory conduct.  

The extra step of a year at Simon Fraser was neither designed for, nor effective in,  addressing the discrimination issues raised by the TWU Community Covenant.  In contrast, Law Societies are in a position to address those issues by adding an extra step to the bar admission process.  If a law degree from TWU were treated as in the same category as those from foreign law schools, the National Committee on Accreditation requirements, or some provincial counterpart, could be used to fill the gap in requirements for admission to a Canadian bar. 

TWU argues that such an extra step would run contrary to the freedom of religion of its graduates.  In addressing the justified limits on freedom of religion in order to promote equality, it must be remembered that there is more latitude in limiting freedom of religion outside a penal context, where instead what is involved is access to benefits or privileges; Alberta v. Hutterian Brethren of Wilson County, [22009] 2 S.C.R. 567, paras. 37, 95.  Admission to a bar clearly falls into the latter category. The Hutterite case recognized inevitable “conflicts with individual beliefs” (para. 90), setting the essence of a Charter s. 1 inquiry as: “whether the limit leaves the adherent with a meaningful choice to follow his or her religious beliefs and practices.” (para. 88) 

A decision by a provincial bar society to deny recognition to a TWU law degree would not preclude anyone from conducting themselves in their own sexual activities in accordance with their religious beliefs.  It would ultimately only address the inability to impose, in the public sphere, such a code of conduct on others.  It would add an extra step, through the National Committee on Accreditation or a comparable provincial process, but would not preclude admission to the practice of law. Moreover, there is much that can be done with a legal education apart from entering the legal profession.  Although Carleton’s law program is a world apart from TWU, it is an example of an academic study of law with utility not connected to admission to a bar.  The limits on freedom of religion involved in a bar society decision not to recognize a TWU law degree are quite minimal.

Conclusion

            TWU caters primarily to British Columbia residents.  Thus there may be very few graduates of a TWU Law School interested in admission to the NSBS.  But that does not make the matters of principle any less important.  Beyond the numbers, what matters is the anti-equality message that would be conveyed by a decision by the NSBS to recognize the TWU Law School as qualifying for bar admission.  Such a decision would undermine the message conveyed by the annual pride reception held by the NSBS.  Such a decision would undermine the message conveyed by the fact that the Society has an Equity Officer.  Such a decision would undermine the message conveyed by the ad hoc committee, chaired by Emma Halpern as Equity Officer, on Employment Equity in the Legal Profession.  I strongly urge the NSBS not to undermine those equality messages.  Instead the NSBS should show leadership in denying approval to the proposed TWU Law School.

Sincerely yours,

Dianne Pothier


c.c.       Tilly Pillay, QC
            Darrel Pink
            Naiomi Metallic
Kim Brooks
Emma Halpern
Designed by Rachel Gold.