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When Rights Collide: Freedom of Religion & Discrimination at TWU

We report on the debate concerning the controversial TWU legal case

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On October 25 2017, Professor Bruce Pardy of Queens University lead a discussion regarding the Law Society of Upper Canada’s decision (and Ontario Court of Appeals’ affirmation) not to recognize Trinity Western University’s (TWU) law program, and thus not allow their students to practice law in Ontario.  The LSUC rejected TWU because it claims they are discriminating against LGBT individuals in requiring that their students sign what the university calls the Community Covenant Agreement- a pledge to uphold a document of Christian based values (TWU is a Christian liberal arts college located in Langley, B.C). Most of the values are not a problem for the LSUC (no vulgar language, no slander/gossip for example), but they draw the line where TWU asks its students to agree that sex should be between a man and a woman restricted to the confines of marriage. This they claim discriminates against LGBT individuals pursuant to s.15 of the Charter of Rights and Freedoms and s.6 of the Human Rights Code, and would not allow an LGBT individual to be their true self while attending TWU law. Speaking in agreement with the LSUC and the Ontario Court of Appeals was the Dean of Queens Faculty of Law William Flanagan, who opened his submissions by stating that he is gay and thus touched personally by the issue at hand: “We are talking about a program that I would not be allowed to attend” he said. In defense of TWU spoke André Schutten, a Christian lawyer who is an intervener in this case and is the head lobbyist for the Association for Reformed Political Action (ARPA). In his view, it is TWU who is being discriminated against, not the LGBT community. We will look at what arguments we’re made but first a little background.

In 2012, TWU applied to the Federation of Law Societies to develop their faculty of law program. The federation approved after first meeting to discuss the covenant, which they decided wasn’t a public interest issue, particularly because TWU had agreed that section 15 of the Charter prevented any of its graduates from discriminating based on sexual orientation. The Law Society of British Columbia refused to recognize TWU’s law program however, based on their definition of marriage, alleging that it in fact violates s.15 as well as s.6 of the Human Rights Code. They asked TWU to amend the covenant, to which TWU refused stating that each value in the covenant is critical to their Christian mission.  They claimed in response that s.2 and S.15 of the Charter should shield them, not condemn them.  The B.C Court of Appeals agreed with TWU and found the LSBC to be discriminating against their right to religious freedom. The Ontario Court of Appeals went the other way and upheld the LSUC’s rejection of TWU, on the basis of s.15 Charter and S.6 Human Rights Code violations. Ontario is the only province that doesn’t accept TWU graduates.

Professor Pardy opened the discussion by providing some background for the issue at hand and then by introducing the speakers. Before he gave up the platform for Mr. Schutten to speak, he left us with the ominous warning:

“A majority acting in the name of liberalism can impose its views on the minority, which are, in themselves, intolerant and illiberal.”

Mr. Schutten commenced by suggesting that this isn’t a dispute between TWU’s s.2 Charter rights and the LGBT communities’ s.15 Charter rights. Rather this is the s.2 and 15 charter rights of TWU against the encroachment of a governing body with a statutory objective. His main point was that the Charter is supposed to be a shield not a sword, and that it is being used to discriminate against TWU. Mr. Schutten says section 2(a) protects your right to have your own values while section 2(d) protects your right to associate with people of those same values and hold each other accountable.  This right to assemble with those of similar values he says, is also a right to discriminate- you can’t assemble with a certain type of people without discriminating against a different type. He doesn’t feel TWU is discriminating against LGBT students because put simply, it isn’t for them. They can choose to go to other law schools. This is just a group of people assembling for the purpose of a particular goal, and that it really has nothing to do with the LGBT community. In fact, now a graduate from Trinity Western Law will be discriminated against in Ontario. He says s.15 of the Charter shouldn’t even apply to TWU because it is a University and based on that, “the Ontario Court of Appeals failed miserably in their legal analysis”. He concluded by asserting that this is simply the Law Society of Upper Canada deciding that their moral code is more valid than TWU’s moral code.

Dean William Flanagan agreed with Mr. Schutten that TWU is exempt from the Charter, but rebuts that the Law Society of Upper Canada does not have this freedom. His main point was that this isn’t an issue of TWU’s rights, but an issue of the LSUC’s obligation to protect the rights of the LGBT community. In his submissions, Dean Flanagan focused on the analysis by both the B.C and Ontario courts in regards to the impact on TWU compared with the impact on the LGBT community. B.C Court of Appeals found the LSBC’s rejection to be particularly damaging to TWU since it resulted in the B.C Ministry of Advanced Education refusing to accredit the law school. The Ontario Court of Appeals didn’t find the impact of the LSUC’s decision on TWU to be too harmful however because it simply meant TWU graduates couldn’t practice in Ontario and had no impact on the accreditation of the law school. Based on this, Dean Flanagan says the impact on TWU by the Ontario Court of Appeals is not too severe, whereas the impact on the LGBT students could be.  According to the Ontario Court of Appeals, LGBT students would have to suppress their true nature and risk expulsion if they want a coveted spot at TWU Law. Mr. Flanagan agreed with Ontario’s assessment of the strong impact on the LGBT community and said that in considering the balancing of impact on TWU and LGBT, we need to protect the LGBT community more urgently. He finished off by dropping the dagger that he spoke with the Dean of Trinity Law on a radio program and asked him if the ability to expel LGBT students really was necessary in protecting his Christian mission. He claims the dean had no response.

After applause for the two speakers, Professor Bruce Pardy took the stand again and posed an interesting question to both speakers: Is it the job of the law societies to assess values? Shouldn’t their focus be on assessing lawyers’ competencies? Flanagan answered first by suggesting that the Law Society has a duty to act in the public interest and that by accepting TWU graduates they are complicit in discrimination. Mr. Schutten stated that he doesn’t feel the LSUC should be assessing values. He then took this as a chance to rebut Dean Flanagan’s earlier point about how the LSUC is not exempt from the charter and that they must protect against TWU’s sexual discrimination. Mr. Schutten claimed that he agrees that the LSUC is not exempt, but that this means they must respect the Charter and TWU’s rights. He reaffirmed his earlier point that the way the LSUC is applying the Charter is as a sword, not a shield.

Both sides made compelling arguments, but the one I found most convincing was made by Mr. Schutten when he said that a group of people should be allowed to assemble for a particular purpose and do so in such a way that may discriminate against others. If you don’t like the school, why not go somewhere else? But then, what if you can’t get in somewhere else? What if it just so happens that you apply everywhere in Canada and only get in to TWU? If you are LGBT, does this mean you have to decide between leaving the country and suppressing your sexual identity? Should this even be TWU’s problem? In regards to Ontario Court of Appeals’ claim that the impact is greater on the LGBT community I am also torn. If you are a gay person living in Langley B.C, it certainly would be a large inconvenience to have to leave town for law school just because you happen to live in the town with the devout Christian College. The B.C Court of Appeals made a good point that Trinity Western only adds 60 seats to the current 2500 and therefore doesn’t represent a significant missed opportunity for LGBT law hopefuls. Of course one could then argue that any misdistribution of opportunity should not be tolerated. But what about the opportunity to start your own institution with its own mission and function? Is TWU discriminating against LGBT freedoms, or is the LSUC not respecting TWU’s freedom to discriminate? What do you think?

Christian Monti is a 1L and Staff Writer for Juris Diction

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