Lawyers for Langley’s Trinity Western University and two of Canada’s law socities faced off before the Supreme Court of Canada Thursday morning.
Justices with the country’s top court questioned two lawyers for the Langley-based university over its law school for several hours.
At issue is Trinity Western’s desire to start a law school, and the reluctance of the law socities of B.C. and Ontario to give the school accreditation.
TWU’s Community Covenant is at issue, because students must sign the document, which bans sex outside of heterosexual marriage. Although TWU does not ban LGBTQ students, it has been seen as a barrier.
“It’s our submission there is no harm caused to the legal profession or the administration of justice,” said Kevin Boonstra, a lawyer for TWU.
As a private university, Trinity Western isn’t subject to the Charter of Rights and Freedoms, Boonstra noted. He then argued that the rights of the law socities only began when graduates turned up at their doors, asking to be admitted to the legal profession.
He argued, as TWU has throughout lower courts, that the law socities only other duty is to ensure that schools are properly educating students.
The supreme court judges grilled Boonstra throughout Thursday’s hearing.
“Students who don’t share the same sexual orientation have two choices,” said Justice Richard Wagner. “First he or she has to hide their real sexual orientation, which is not a good thing… or could decide not to attend the school.”
Boonstra essentially agreed.
“Those who don’t share those religious practices will tend not to join,” he said.
“In my book, that is called discrimination,” Wagner replied.
Later in the day, Justice Rosalie Silberman Abella had some lengthy exchanged with Boonstra.
Abella asked whether the law school has a right to impose its religious practices on people who were not members of the religious community.
Boonstra said the school was not imposing itself on others, but Abella said the school was entering the “public arena” by becoming part of the universe of the law socities. Because law socities are created by the government, they are required to abide by the Charter of Rights.
She later noted that the question was not with the people who were leaving TWU to apply to pass the bar and become lawyers.
“The question is, who gets in the door,” Abella said.
Judge Michael Moldaver was also critical of Boonstra’s arguments, saying that LGBTQ people could attend TWU, but they would have to give up their “essence, their being” for three years in order to get through to become lawyers.
“I don’t think you see any harm here whatsoever, or any problem,” said Moldaver.
The last time TWU was before the Supreme Court was also brought up frequently, with Boonstra pointing to the 2001 decision that allowed TWU to accredit teachers. The B.C. Teachers Federation opposed that, but the court found for TWU.
At one point Boonstra said there had not been much change since that decision.
“Well, it has though,” said Abella. “We have since then put a charter blanket around same sex marriage.”
As part of his closing arguments, Boonstra brought up the idea that the same reasoning by the law societies could be applied to TWU’s education, nursing and counselling programs.
Lawyers for the Law Society of British Columbia and Ontario’s Law Society of Upper Canada both argued against the accrediation on the grounds that they can’t allow discrimination. Because they accredit the schools, they can’t accredit a school that would discriminate.
“The law faculties are the gateway to the profession, that’s where it starts,” said Guy Pratte, representing the Law Society of Upper Canada.
“The effect of this [the Community Covenant] is to exclude those who in good conscience can’t sign it, or to renege their identity,” Pratte said.
But Chief Justice Beverly McLachlin noted that the law socities do take people who come from other backgrounds, such as foreign schools.
And Justice Russell Brown asked about other barriers to law school – such as lack of money.
“Is that something that the law society has something to say about?” Brown asked.
Pratte stood up for the idea that the law societies have a duty to allow entry to all, going back to 1897 when the first woman in Ontario was admitted to the bar.
“A diverse bar is a better bar, in the end,” Pratte said.
On Friday, numerous intervenors spoke up for and against TWU, with religious organizations arguing for the accreditation, while LGBTQ rights and secular society groups speaking up against it. Most of the intervenors spoke relatively briefly, citing previous legal decisions and making arguments based on everything from the Charter of Rights to international law.
A lawyer for the Canadian Civil Liberties Association referenced Pierre Trudeau’s quote “The state has no place in the bedrooms of the nation,” made when the federal government decriminalized homosexual acts in 1967.
Last year, the B.C. Court of Appeal ruled in TWU’s favour, despite the justices noting it could have a detrimental effect on the rights of LGBTQ people.
In their decision, the judges said the society’s move not to recognize the grads “would limit the engaged rights of freedom of religion in a significantly disproportionate way.”
The B.C. Law Society has appealed.
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Meanwhile in Ontario, the Law Society of Upper Canada had its decision not to accredit the graduates of TWU upheld. TWU appealed that decision.
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