Frequently Asked Questions about Accrediting Trinity Western University's Proposed Law School Program in Ontario

Monday, February 10, 2014

Background

Trinity Western University (‘TWU’) is an evangelical Christian institution in Langley, British Columbia. TWU requires all faculty, staff and students to sign a “Community Covenant” promising to inter alia “abstain from sexual intimacy that violates the sacredness of marriage between a man and a woman.” Faculty, staff and students who violate the Covenant risk disciplinary measures, including expulsion and termination of employment.

On 16 December 2013, the Federation of Law Societies of Canada (Canadian Common
Law Program Approval Committee) issued a report (Report) granting “preliminary
approval” to TWU’s proposed school of law program.

The Report states that the Approval Committee considers its mandate to be confined to considering whether TWU’s proposed program meets the “national requirement” by offering required courses and complying with minimum admission standards.

The Report expressly does not consider other matters, including concerns about the effect of TWU’s “Community Covenant” on access to a legal education and on equality interests.

Also in December 2013, a “Special Advisory Committee on Trinity Western’s Proposed School of Law” (Special Advisory Committee), convened by the Federation, issued a Final Report concluding that “there will be no public interest reason to exclude future graduates of the program from law society bar admission programs.” Specifically, the Special Advisory Committee observed that:

Absent evidence for example, that graduates of the proposed law school would engage in discriminatory conduct or would fail to uphold the law, freedom of religion must be accommodated. No such evidence has been brought to the attention of the Special Advisory Committee, nor is it aware of any.

As the Federation of Law Societies of Canada has indicated, the decision whether to recognize TWU’s proposed law school ultimately rests with each of the provincial and territorial law societies. In Ontario, the Law Society of Upper Canada will be responsible for deciding whether to approve TWU’s proposed law school despite its discriminatory policies.

The Treasurer of the Law Society of Upper Canada recently announced that it is currently reviewing the Federation reports and conducting background work, including considering what process should be followed to reach a decision on this matter. The Treasurer has indicated that he anticipates that Convocation will consider the TWU issue at its April 2014 meeting.

FAQs about TWU

Isn’t TWU a private institution? Doesn’t that mean the Charter doesn’t apply?

The answer to this question has two separate parts:
First, whether or not TWU is private is irrelevant to the primary legal question at hand, which is whether or not the Law Society of Upper Canada (LSUC) should admit graduates of TWU to the bar here in Ontario.  The Charter applies to all provincial/territorial law societies in Canada,[1] including the LSUC and its decision-making on this issue.  What is more, the application of the Charter to TWU has no bearing on whether it is in the public interest, as required by the province’s Law Society Act,[2] to accredit those who have attended an institution that openly discriminates against gays and lesbians through its Community Covenant.

In answering the question of what constitutes the public interest in this case, the LSUC, as an administrative decision-maker, is required[3] to balance Charter values in its decision-making, which would of course includes freedom of religion and the equality rights of  gays and lesbians.  Any decision taken by the LSUC in this matter must, in the final analysis, comply with the Charter.

Second, in a case where the applicability of the Charter were to become an issue (for instance, if an individual gay or lesbian student were to launch a Charter challenge after being expelled or excluded from TWU), it is arguable that TWU could be subject to Charter scrutiny. In order for the Charter to apply, an institution must either be a ‘government entity’ or it must be carrying out a ‘government activity.’[4] The Supreme Court of Canada held, in McKinney v the University of Guelph,[5] that universities, like hospitals,[6] are private rather than government entities within the meaning of the Charter.  However, the Court has since recognized that private entities may nevertheless be subject to Charter review when they are carrying out ‘government activities.’  For example, in Eldridge v British Columbia, the Court held hat hospitals must comply with the Charter’s equality guarantee in delivering publicly funded health care services.[7]  Like in the case of hospitals, direct and indirect government funding is provided to universities in order to further the important governmental objective of promoting access to post-secondary education.
  
Radio Canada[8] has reported that TWU, on at least one occasion, has received 20 million dollars in federal infrastructure funding. TWU faculty also receive taxpayer monies through SSHRC, NSERC and CIHR grants.  Likewise, TWU students are eligible for public monies through interest free student loans.

In 2012, TWU received $465,000 in federal funding.[9] In 2009, the federal government provided $2,614,000 in funding to TWU.[10]  For its part, the BC Government gave TWU $2,614,000 in provincial monies in 2009.[11]

When an individual donates money to TWU, they receive a tax credit for a percentage of that donation.  That tax credit is paid from public coffers.

Furthermore, even private universities such as TWU cannot legally confer degrees without each one of those being specifically approved by the BC Ministry of Higher Education,[12] an indication that TWU is performing ‘government activities’.

What about Human Rights legislation?

It is arguable that the B.C. Human Rights Code[13] applies to TWU. Despite the institution’s claim to the contrary, s. 41(1) of the Code, which authorizes educational and religious organizations to favour the members of the group they represent, does not appear to save the Covenant. The Supreme Court has held that such a Code exemption only applies where a non-profit organization has “as a primary purpose, the promotion of the interests and welfare of an identifiable group of persons characterized by a common [enumerated] ground”[14] and that “the distinction, exclusion or preference [is] justified in an objective  sense by the particular nature of the institution in question.”[15]


TWU fails on both accounts. First, although recognized as a Christian institution affiliated to the Evangelical Free Church of Canada, TWU must “provide for young people of any race, colour, or creed university education in the arts and sciences with an underlying philosophy and viewpoint that is Christian.”[16] Second, it can hardly be said that TWU’s ban on sexual intimacy outside of marriage between a man and a woman is objectively justified by its mission. Many Christian organisations reject the notion that same-sex intimacy is contrary to Christian theology.

Were TWU located in Ontario, our human rights legislation, which prevents discrimination on the basis of sexual orientation, applies to public and private actors.  It will certainly apply to TWU.

TWU does not ban gays and lesbians outright. They can attend TWU; they just cannot have intimate relations with people of the same sex while they go to law school. Why is this a problem?

As highlighted by the Supreme Court of Canada in Vriend v Alberta, the mere fear of discrimination may in and of itself cause serious psychological harm: “Fear of discrimination will logically lead to concealment of true identity and this must be harmful to personal confidence and self‑esteem. […] The potential harm to the dignity and perceived worth of gay and lesbian individuals constitutes a particularly cruel form of discrimination.”[17]

Moreover, in Saskatchewan (Human Rights Commission) v Whatcott,[18] the Court soundly rejected the ‘love the sinner, hate the sin’ approach to discrimination.  Targeted practices, such as intimacy with one’s same-sex spouse, cannot be separated from the protected identity of being gay or lesbian.

The Supreme Court concluded in Whatcott that it is not possible to condemn same sex intimacy “without thereby discriminating against gays and lesbians and affronting their human dignity and personhood.”[19]

Banning gay and lesbian intimacy is banning gays and lesbians.

Don’t you have to show that TWU graduates will discriminate against gays and lesbians in order to prove that accrediting them in Ontario is against the public interest?

It is impossible to prove that TWU graduates would actively discriminate against queer people – a hypothetical based on the future actions of would-be graduates is impossible to prove.  This is the wrong question to ask.  The correct question is whether or not granting accreditation to TWU’s law school is in the public interest of Ontarians. It cannot be in the public interest for the LSUC to condone a law faculty and a law school program that actively discriminates against a group that has been recognized under both provincial human rights law and the Charter as warranting protection from discrimination. The public interest demands that the law reflect societal values and who we want to be as a province and a country. TWU has no right to an imprimatur from the LSUC or the Government of Ontario.

Further, there is something particularly egregious about a law school that practices discrimination – a practice so antithetical to our legal tradition and Charter values.  A law school that promotes discrimination and discriminatory attitudes is like a medical school that denounces the Hippocratic oath:  it is fundamentally repugnant to the values the profession embodies.

Doesn’t the Covenant discriminate against other groups besides gays and lesbians, such as Jewish people, Muslim people, unmarried opposite-sex partners etc?

Yes it does, and those forms of discrimination should also be condemned. Such discrimination is, however, subtly different. For instance, the Community Covenant does not pose the same kind of outright ban on people of non-Christian religions as it does on gays and lesbians. While living as a Jewish or Muslim person at a ‘distinctly Christian university’[20] would, without a doubt, create serious difficulties at many levels, students and faculty who identified this way do not face discipline, expulsion or loss of employment.

The nature of sexual orientation poses a further difficulty. Students could apply and be accepted to TWU, only to “come out” during their studies.  These students would face an increased risk of expulsion by virtue of their sexual orientation.

Those who are advocating for the non-accreditation of TWU graduates in Ontario because of the Community Covenant’s discrimination against GLBTQ people decry all forms of discrimination inherent in TWU’s proposed law program, and would be happy to join with advocacy and community groups in bringing these concerns to the fore at the LSUC hearings. However, given the unique and stark ways in which TWU’s Community Covenant discriminates against gays and lesbians, regardless of marital status, it is crucial to underscore this particular form of discrimination. TWU seeks to impose an unconstitutional definition of marriage onto its students and staff.  The Law Society of Upper Canada should not grant approval to such a law school.





[1] Law Society of Upper Canada v Skapinker, [1984] 1 SCR 357; Andrews v Law Society of British Columbia, [1989] 1 SCR 143; Black v Law Society of Alberta, [1989] 1 SCR 591.
[2] RSO 1990, c L.8, s 4(2).
[3] Doré v Barreau du Québec, 2012 SCC 12.
[4] Eldridge v British Columbia (Attorney General), [1997] 3 SCR 624 at para 44.
[5] McKinney v University of Guelph, [1990 3 SCR 229.
[6] Stoffman v Vancouver General Hospital, [1990 3 SCR 483.
[7] Eldridgesupra note 4 at para 51.
[8] http://www.cbc.ca/news/politics/christian-schools-received-20m-from-infrastructure-fund-1.1329280
[9] http://twu.ca/news/2012/015-govt-of-canada-announces-support.html
[10] http://www.ic.gc.ca/eic/site/696.nsf/eng/00512.html
[11] http://www.ic.gc.ca/eic/site/696.nsf/eng/00512.html
[12] Degree Authorization Act, SBC 2002, c. 24, s. 4.
[13] RSBC 1996, c. 210.
[14] Brossard v Québec (Comm. des droits de la personne), [1988] 2 SCR 279 at para 130. See also Caldwell v. Stuart, [1984] 2 SCR 603.
[15] Ibid. at para 138.
[16] Trinity Western University Act, SBC 1969, c. 44, s. 3(2).
[17] [1998] 1 SCR 493 at para 102.
[18] Saskatchewan (Human Rights Commission) v Whatcott, 2013 SCC 11 at paras 122-124.
[19] Ibid. para 123.
[20] Community Covenant page 2.


Designed by Rachel Gold.