Trinity Western University's fight to receive accreditation for their proposed law school stretches on, now arriving at the Supreme Court of British Columbia.
In order to operate, the law school requires recognition from The Canadian Federation of Law Societies of Canada as well as the Minister of Advanced Education. The Federation did approve the law school, but the individual law societies of BC, Nova Scotia and Ontario did not, and each are currently in court with TWU.
The controversy lies with the institution's selective admission practices.
Trinity Western University (TWU) is an evangelical Christian university, and is a private institution. Students going to the school must pledge to abstain from, among other things, homosexual relations by signing the community covenant.
“It’s concerning and quite frankly contrary to the principles of equal access to education that so far has characterized legal education in Canada,” said Margot Young, Professor at the UBC Allard School of Law.
To fight for accreditation, TWU has gone to court time and time again.
According to Earl Phillips, Executive Director for the TWU School of Law, the Nova Scotia supreme court ruled in TWU’s favour but that decision is being appealed by the Barrister Society. The Ontario decision, against TWU, is being appealed by the university.
Now the case is going to the Supreme Court of B.C. for the first time.
When asked how he responds to the argument that graduates from the law school may be discriminatory towards gays or lesbians, Phillips said “actually the law society is not making that argument, there may be some commentators making that argument but … we have no doubt that TWU can properly teach and train lawyers.”
Phillips said that TWU plans to argue that the Law Society doesn't have the jurisdiction to refuse to recognize graduates from the law program because they see the community covenant as containing something discriminatory, noting that "we do not consider it discriminatory." However, Young doesn’t agree.
“Legal education in that environment where there’s this acceptance of discrimination on the basis of sexual orientation, indeed a sort of mandating of it … that poses [tension] to what are pretty mainstream norms of the legal profession, which are full equality,” said Young.
When TWU went to the Ontario Supreme Court, the Justice Centre for Constitutional Freedoms (JCCF) was granted intervener status. Essentially, this means that a party with no real stake in a case but with a unique and well informed perspective can submit an argument.
The JCCF argued that voluntary associations should not be forced to change what they have set as their own rules and requirement. Should this be allowed to happen, this would set a negative legal precedent with regards to freedom of association, argued the JCCF.
“I think that’s an argument that relies upon finding that this is a private institution … and I find it unconvincing given the amount of public resources, particularly public recognition and accreditation that Trinity Western is asking for and actually needs to operate,” Young said.
Philips pointed out that this case appears very similar to one many years ago, known as Trinity Western University versus the BC College of Teachers. The BC College of Teachers denied certification of TWU’s proposed education program, but the university took the college to the Supreme Court and won.
“We’re saying that that case is virtually the same case and the principles are the same and the Supreme Court of Canada recognized a number of things about the situation then that apply today,” said Phillips.
Young pointed out two particular differences between this case and that one that might result in a different verdict than the one given by the Supreme Court almost a decade ago.
“The Supreme Court of Canada in that decision dealt primarily with what the behaviour of the graduates.… This case is not about what kind of lawyers Trinity Western will produce,” said Young, pointing out that TWU’s admission practices limit certain people from going into law and, therefore, the judiciary. “The second feature is that, attitudes towards sexual orientation have changed since that case.”