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Home News Articles Lawyers and their biases

Lawyers and their biases

By | National Post on Dec 04 2015

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Even before the private Christian institution’s attempts to create a law school, Trinity Western University (TWU) was setting legal precedent on religious freedom. Whether or not appeals courts in Nova Scotia and Ontario allow their respective provincial law societies to withhold accreditation of TWU’s law school, they will have to give at least a nod to the Supreme Court’s 2001 decision in TWU’s favor.

The issue back then was whether the British Columbia College of Teachers (BCCT) could withhold accreditation of TWU’s teacher training program because it required students to abide by the school’s “Community Standards” – which included abstaining from homosexual behaviour. The Supreme Court’s answer was no, the BCCT couldn’t stand in TWU’s way on that basis.

There was no evidence that TWU students’ beliefs about homosexuality led to discriminatory conduct once they were teaching students, the court said, and TWU’s beliefs – the evangelical Christian convictions of one particular school – would not prevent gay people from becoming teachers in general. That is one difference between the BCCT decision and the recent Ontario divisional court decision, which allowed the Law Society of Upper Canada (LSUC) to reject TWU’s law school because of TWU’s discriminatory community covenant.

The Ontario decision contended that TWU’s law school really would reduce the chance of gay students becoming lawyers: it would limit their access to law school by decreasing their overall percentage chance of obtaining a law school spot – since they’d have to effectively cross all the TWU spots off their list. That TWU was likely to simply chuck the idea of the law school entirely if it couldn’t get accredited in Ontario (and would thereby simply lower the total number of law school spots potentially available to their current levels) proves the court’s math dodgy. Cutting the red tape to make it easier to create private law schools would also help lessen the “substantial limitations” on law school berths over which the Ontario court fretted – but given the sorry state of the legal job market, judges may be the only ones worrying about the country not turning out enough lawyers, in any case.

The Nova Scotia court that decided a factually similar case, about whether that province’s Barristers’ Society could veto TWU’s law school because of the community covenant, did not share this concern. But it did explicitly worry about something that seemed to trouble the Ontario court much less: the religious freedom of TWU and TWU grads.

“Unless tolerance engages the incomprehensible, the contemptible, or the detestable,” the Nova Scotia court explained, “it is nothing much more than indifference.” The court wasn’t asking the Barristers’ Society to like or agree with TWU’s religious community covenant. The court was simply saying that as an official public licensing body, the Barristers’ Society must tolerate the covenant as a genuinely held expression of religious belief.

There was no room for the Barristers’ Society to go sticking its nose into how TWU runs its school, the court ruled; and anyway, everyone agreed that TWU law graduates are perfectly qualified to practice law and aren’t more likely to discriminate in their practice than other lawyers – so even if the Barristers’ Society had the jurisdiction to be micromanaging school policies, it didn’t have good reason to do so in this instance.

The Ontario court spent quite a lot of ink trying to distinguish the facts it was considering from the facts of the 2001 TWU teaching case. (Since the Ontario decision came after the Nova Scotia TWU law decision, the Ontario court also tried to distinguish its facts from that case as well, which was even more of a stretch.) All of this felt like an elaborate justification for making a policy choice to give a distasteful expression of religion short shrift.

What the Ontario court did not explain was where this allowance of infringing religious freedom on the basis of not “endorsing” discrimination would end. Since the court permitted LSUC’s decision to deny TWU accreditation on the basis of the school’s community covenant, surely there’s a decent chance the court would also permit LSUC to deny an individual TWU grad entry into the society on the basis of that lawyer’s having signed a discriminatory covenant – as long as LSUC had gone through the motions of considering that lawyer’s religious freedom.

If any profession is to understand the importance of safeguarding the rights of unpopular minority voices, surely it’s the legal profession. But urbane legal benchers have their own biases and can be.

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