Have law societies forfeited the privilege of self-regulation?

In Canada, regulation of the legal profession is constitutionally a provincial matter; which has historically been delegated to self-governing bodies of lawyers, referred to as law societies. Law societies have operated with little constraint. As the defenders of the rule of law, their elected governors, called benchers, have been people of influence and leadership in their provinces and the nation.

Don Hutchinson

Don at the Supreme Court of Canada

In proposing to open a law school, Trinity Western University crossed all its “t”s and dotted all its “i”s to ensure compliance with nationally agreed requirements for the operation of a law school and provincial requirements for legal studies as established by the Government of British Columbia.

Following an exhaustive review of the rule of law – the applicable constitutional and legal principles – and academic requirements, the Federation of Law Societies of Canada approved TWU’s application. Similarly, the British Columbia Ministry of Advanced Education also approved TWU’s application.

Enter the provincial law societies, all independent members of the Federation and all having agreed to the standards exercised by the Federation in the process of approving new law schools.

Trinity Western University’s application presented the benchers with a test of character.

Despite the Community Covenant being five pages long, focused on biblical principles that call for love, generosity, compassion, encouragement and support of all within the university community – and treating all persons with respect and dignity – the benchers, and too many lawyers, have become preoccupied by the sexual act.

Like the one dog that seems to arrive in too many leash free parks, law societies in Nova Scotia, Ontario and British Columbia have become so consumed by focus on the sexual act they have forgotten that the freedom to self-regulate, to run free as it were, is based on trust.

They have become so fixated that these guardians of the rule of law have deliberately chosen to ignore the rule of law; the constitution, earlier decisions of the Supreme Court of Canada, human rights legislation in their respective provinces and the thorough legal assessment conducted by neutral experts on behalf of the law societies’ own national Federation.

Deliberately choosing to set aside their responsibility as protectors of the rule of law, they have instead imposed a policy of political correctness on Trinity Western; even choosing to ignore the voices of the very people on whose behalf they claim to act.

Gay students and graduates of Trinity Western have publicly expressed that the voluntary Community Covenant facilitated the community of supportive peers and professors in which they were treated with respect and grace, not discrimination. The effort has been made to silence their voices because of a few brief sentences in the Community Covenant that express the private Christian university’s religious belief that sexual activity, outside of the marriage relationship between one woman and one man, is not permitted within the Trinity Western community.

The benchers and other lawyers have deliberately tried to shut down the gay students’ voices in order to, paradoxically, intervene and speak on behalf of potential future gay students.

Contrary to the rule of law, these law societies have determined that conformity to their definition of diversity is essential. They have decided they have no tolerance for the religious freedom of this community; although that very freedom is constitutionally guaranteed and affirmed in the rule of law of Canada’s diverse, free and democratic society.

Instead, they have adopted a strategy that forces the small private university that meets all the requirements to establish a law school – at its own expense – to engage in the process of fighting this battle in the courts – at its own expense; perhaps, hoping the cost will outweigh the desire.

As a constitutional law lawyer, I’ve put my money on Trinity Western through donation to their law school project. Trinity Western’s is the only constitutionally defensible position to hold under Canada’s rule of law.

Given that the guardians of the rule of law have now turned their backs on that rule of law itself, I’m wondering if, by their behaviour, law societies have forfeited the privilege of self-regulation. At minimum, it may be time to shorten the leash.