“You may have to fight a battle more than once to win it.” The saying is usually attributed, with more confidence than evidence, to Margaret Thatcher. But it could also be the motto of Trinity Western University. Just last week the Nova Scotia Court of Appeal affirmed that the provincial law society had exceeded its authority in barring graduates of TWU’s proposed new law school.
But it was only a partial win for TWU. In June, the Ontario Court of Appeal reached the opposite conclusion, almost guaranteeing the case will head to the Supreme Court (a third case, in the British Columbia Court of Appeal, is still awaiting a decision). TWU must be wondering how many times it will have to turn to the Supreme Court to affirm its rights to freedom of religion and freedom of association before its persecutors will leave them alone.
Fifteen years ago, the Supreme Court held that the British Columbia College of Teachers could not deny accreditation to TWU’s teaching program because the school’s Community Covenant, among other things, prohibits sexual intimacy for students outside traditionally defined marriage. The Supreme Court found no evidence that graduates’ sincerely-held religious beliefs meant that they would not be competent teachers.
So when TWU decided some years later to open a law school, it might fairly have assumed that the Supreme Court’s earlier ruling would save them the hassle of re-litigating this issue. Unfortunately, while the national Federation of Canadian Law Societies and most provincial law societies approved the new law school, the law societies of British Columbia, Ontario, and Nova Scotia voted to deny prospective TWU Law graduates the right even to apply for admission to their provincial bars.
Following the Supreme Court’s BCCT precedent, this should be an easy case. Because the law societies are state actors, they cannot bar individuals from participating in the labour market simply because they have exercised their Charter-protected right to pursue a degree at a religious institution. The law societies’ prejudice against TWU has nothing to do with the legal qualifications of graduates (the national accrediting body has already approved the program) and, as in the BCCT case, there is no evidence that TWU graduates will be any less inclined to uphold professional standards than graduates of other law schools.
The absurdity of the law societies’ position is exposed by the fact that law students who attended TWU as undergraduates, are members of churches that espouse the same values as TWU, or who are graduates of American law schools with similar community covenants such as Brigham Young University or Notre Dame, will all still continue to be able to apply for admission to the bar.
It seems the singular threat of a Christian law school in Canada is too much for these churlish regulators. It is not enough for them to disapprove of TWU’s values, they must denounce, deny, and utterly destroy them. This persecution of unpopular beliefs is exactly the sort of bigotry that the Charter was supposed to prevent, something the life-long Roman Catholic Pierre Trudeau would have understood.
The blanket ban against TWU law graduates entering the legal profession because of an inchoate fear that some of them may hold unfashionable views follows the same logic as Donald Trump’s proposal to ban all Muslims from entering America on the grounds that some may hold views incompatible with liberal democracy. Unlike the law societies, however, Trump has since moderated his position.
It is unfortunate TWU finds itself back here again. Even if TWU prevails at the Supreme Court a second time, this law societies’ intolerance shows that, for all their talk of respecting diversity and rooting out systemic bias in society, the guardians of Canada’s legal profession have a hard time recognizing these same problems in their own houses.
By CCF Executive Director Howard Anglin.
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