Letter to Law Society of Newfoundland and Labrador re Trinity Western University

Brenda B. Grimes
Executive Director
Law Society of Newfoundland and Labrador
via email brenda.grimes@lawsociety.nf.ca

Dear Ms. Grimes:

RE: TRINITY WESTERN UNIVERSITY SCHOOL OF LAW

A friend tells a story of three lawyers, which I will modify slightly here.

Three friends all complete their undergraduate studies at Trinity Western University. All three decide to go to law school, however for personal reasons one goes to the University of Victoria, a second to the University of British Columbia and the third to TWU; all three accredited by the Federation of Law Societies of Canada and the B.C. Ministry of Advanced Education. Upon graduation they enter into practice together.

All three become involved in their communities and become chairs of different sections of the Canadian Bar Association. After ten years, one of the partners returns to Newfoundland for the funeral of his grandmother. The other two join him for support. While there, the partner decides he will need to move to St. John’s to help care for his parents. The second partner meets the woman of his dreams, who has recently been appointed to the Supreme Court of Newfoundland and Labrador so he too decides to make St. John’s his new home. The third partner doesn’t want to break up a supportive relationship and first rate law practice.

Interestingly, although all three have served well in law and community, and all three would be eligible for consideration for appointment to the Supreme Court of Canada, one is not eligible to practice law in Ontario or Nova Scotia only because of a decision made by the respective law societies of those provinces about the fully and properly accredited law school he attended.

Will the Law Society of Newfoundland and Labrador accept him?

The Law Society has already encouraged members and benchers to read the 2001, Supreme Court of Canada decision in Trinity Western University v. College of Teachers. In applying the principles of balancing rights the SCC determined in its 1994 decision in Dagenais v. CBC, the court concluded:

  • If TWU’s community standards could be sufficient in themselves to justify denying accreditation, it is difficult to see how the same logic would not result in the denial of accreditation to members of a particular church. (para. 33)
  • The diversity of Canadian society is partly reflected in the multiple religious organizations that mark the societal landscape and this diversity of views should be respected. (para. 33)
  • Consideration of human rights values in these circumstances encompasses consideration of the place of private institutions in our society and the reconciling of competing rights and values. Freedom of religion, conscience and association coexist with the right to be free of discrimination based on sexual orientation. (para. 34)
  • The Human Rights Act … (now the Human Rights Code)… provides … that a religious institution is not considered to breach the Act where it prefers adherents of its religious constituency. It cannot be reasonably concluded that private institutions are protected but that their graduates are de facto considered unworthy of fully participating in public activities. (para. 35)
  • There is nothing in the TWU Community Standards that indicates that graduates of TWU will not treat homosexuals fairly and respectfully. Indeed, the evidence to date is that graduates from the joint TWU-SFU teacher education program have become competent public school teachers, and there is no evidence before this Court of discriminatory conduct by any graduate. (para. 35)
  • Students attending TWU are free to adopt personal rules of conduct based on their religious beliefs provided they do not interfere with the rights of others. Their freedom of religion is not accommodated if the consequence of its exercise is the denial of the right of full participation in society. (para. 35)

There is, in fact, no evidence to suggest that these conclusions of the court have borne out to be false or that they would not be equally applicable in the instance of a law school.

The Court states at paragraph 36:

Instead, the proper place to draw the line in cases like the one at bar is generally between belief and conduct. The freedom to hold beliefs is broader than the freedom to act on them. Absent concrete evidence that training teachers at TWU fosters discrimination in the public schools of B.C., the freedom of individuals to adhere to certain religious beliefs while at TWU should be respected. The BCCT, rightfully, does not require public universities with teacher education programs to screen out applicants who hold sexist, racist or homophobic beliefs. For better or for worse, tolerance of divergent beliefs is a hallmark of a democratic society.

Which, in the current context, might be considered as:

Instead, the proper place to draw the line in cases like the one at bar is generally between belief and conduct. The freedom to hold beliefs is broader than the freedom to act on them. Absent concrete evidence that training lawyers at TWU fosters discrimination in the practice of law (in accordance with the Code of Professional Conduct), the freedom of individuals to adhere to certain religious beliefs while at TWU should be respected. The LSNL, rightfully, does not require public universities with law school programs to screen out applicants who hold sexist, racist or homophobic (or anti-religious) beliefs. For better or for worse, tolerance of divergent beliefs is a hallmark of a democratic society.

In the 2004 SCC decision in Reference re Same-Sex Marriage, the Court reinforced the principles expressed in Dagenais and Trinity Western, noting:

52  The right to same-sex marriage conferred by the Proposed Act may conflict with the right to freedom of religion if the Act becomes law, as suggested by the hypothetical scenarios presented by several interveners. However, the jurisprudence confirms that many if not all such conflicts will be resolved within the Charter, by the delineation of rights prescribed by the cases relating to s. 2(a). Conflicts of rights do not imply conflict with the Charter; rather the resolution of such conflicts generally occurs within the ambit of the Charter itself by way of internal balancing and delineation.
53  The protection of freedom of religion afforded by s. 2(a) of the Charter is broad and jealously guarded in our Charter jurisprudence. We note that should impermissible conflicts occur, the provision at issue will by definition fail the justification test under s. 1 of the Charter and will be of no force or effect under s. 52 of the Constitution Act, 1982. In this case the conflict will cease to exist.

Taking this advice from the Court, Parliament spelled out in the Civil Marriage Act that there should not be discrimination against an individual or group on the basis of holding an opinion on marriage that differs from the legal definition in the Act, including opinion founded in religious belief. The preamble includes:

WHEREAS nothing in this Act affects the guarantee of freedom of conscience and religion and, in particular, the freedom of members of religious groups to hold and declare their religious beliefs and the freedom of officials of religious groups to refuse to perform marriages that are not in accordance with their religious beliefs;

WHEREAS it is not against the public interest to hold and publicly express diverse views on marriage;

And, the body of the Act further states:

3.1 For greater certainty, no person or organization shall be deprived of any benefit, or be subject to any obligation or sanction, under any law of the Parliament of Canada solely by reason of their exercise, in respect of marriage between persons of the same sex, of the freedom of conscience and religion guaranteed under the Canadian Charter of Rights and Freedoms or the expression of their beliefs in respect of marriage as the union of a man and woman to the exclusion of all others based on that guaranteed freedom.

I encourage the Law Society of Newfoundland and Labrador to hold open its bar to those properly equipped and accredited graduates of all law schools and let their practice of the law be determinative of whether or not they belong elbow to elbow with those currently practicing who do or do not hold similar convictions in regard to marriage within the religious community.