Lawyers for 91原创鈥檚 Trinity Western University and two of Canada鈥檚 law socities faced off before the Supreme Court of Canada Thursday morning.
Justices with the country鈥檚 top court questioned two lawyers for the 91原创-based university over its law school for several hours.
At issue is Trinity Western鈥檚 desire to start a law school, and the reluctance of the law socities of B.C. and Ontario to give the school accreditation.
TWU鈥檚 Community Covenant is at issue, because students must sign the document, which bans sex outside of heterosexual marriage. Although TWU does not ban LGBTQ students, it has been seen as a barrier.
鈥淚t鈥檚 our submission there is no harm caused to the legal profession or the administration of justice,鈥� said Kevin Boonstra, a lawyer for TWU.
As a private university, Trinity Western isn鈥檛 subject to the Charter of Rights and Freedoms, Boonstra noted. He then argued that the rights of the law socities only began when graduates turned up at their doors, asking to be admitted to the legal profession.
He argued, as TWU has throughout lower courts, that the law socities only other duty is to ensure that schools are properly educating students.
The supreme court judges grilled Boonstra throughout Thursday鈥檚 hearing.
鈥淪tudents who don鈥檛 share the same sexual orientation have two choices,鈥� said Justice Richard Wagner. 鈥淔irst he or she has to hide their real sexual orientation, which is not a good thing鈥� or could decide not to attend the school.鈥�
Boonstra essentially agreed.
鈥淭hose who don鈥檛 share those religious practices will tend not to join,鈥� he said.
鈥淚n my book, that is called discrimination,鈥� Wagner replied.
Later in the day, Justice Rosalie Silberman Abella had some lengthy exchanged with Boonstra.
Abella asked whether the law school has a right to impose its religious practices on people who were not members of the religious community.
Boonstra said the school was not imposing itself on others, but Abella said the school was entering the 鈥減ublic arena鈥� by becoming part of the universe of the law socities. Because law socities are created by the government, they are required to abide by the Charter of Rights.
She later noted that the question was not with the people who were leaving TWU to apply to pass the bar and become lawyers.
鈥淭he question is, who gets in the door,鈥� Abella said.
Judge Michael Moldaver was also critical of Boonstra鈥檚 arguments, saying that LGBTQ people could attend TWU, but they would have to give up their 鈥渆ssence, their being鈥� for three years in order to get through to become lawyers.
鈥淚 don鈥檛 think you see any harm here whatsoever, or any problem,鈥� said Moldaver.
The last time TWU was before the Supreme Court was also brought up frequently, with Boonstra pointing to the 2001 decision that allowed TWU to accredit teachers. The B.C. Teachers Federation opposed that, but the court found for TWU.
At one point Boonstra said there had not been much change since that decision.
鈥淲ell, it has though,鈥� said Abella. 鈥淲e have since then put a charter blanket around same sex marriage.鈥�
As part of his closing arguments, Boonstra brought up the idea that the same reasoning by the law societies could be applied to TWU鈥檚 education, nursing and counselling programs.
Lawyers for the Law Society of British Columbia and Ontario鈥檚 Law Society of Upper Canada both argued against the accrediation on the grounds that they can鈥檛 allow discrimination. Because they accredit the schools, they can鈥檛 accredit a school that would discriminate.
鈥淭he law faculties are the gateway to the profession, that鈥檚 where it starts,鈥� said Guy Pratte, representing the Law Society of Upper Canada.
鈥淭he effect of this [the Community Covenant] is to exclude those who in good conscience can鈥檛 sign it, or to renege their identity,鈥� Pratte said.
But Chief Justice Beverly McLachlin noted that the law socities do take people who come from other backgrounds, such as foreign schools.
And Justice Russell Brown asked about other barriers to law school 鈥� such as lack of money.
鈥淚s that something that the law society has something to say about?鈥� Brown asked.
Pratte stood up for the idea that the law societies have a duty to allow entry to all, going back to 1897 when the first woman in Ontario was admitted to the bar.
鈥淎 diverse bar is a better bar, in the end,鈥� Pratte said.
The hearing is expected to last through Friday as well.
The B.C. Law Society鈥檚 own members voted against accrediting lawyers graduating from the planned TWU law school.
Last year, the B.C. Court of Appeal ruled in TWU鈥檚 favour, despite the justices noting it could have a detrimental effect on the rights of LGBTQ people.
In their decision, the judges said the society鈥檚 move not to recognize the grads 鈥渨ould limit the engaged rights of freedom of religion in a significantly disproportionate way.鈥�
The B.C. Law Society has appealed.
TWU students hope they can continue serving others!
鈥� Trinity Western (@TrinityWestern)
Meanwhile in Ontario, the Law Society of Upper Canada had its decision not to accredit the graduates of TWU upheld.
Back-to-back hearings are expected, with the case of the Law Society of Upper Canada scheduled for Thursday, and that of the Law Society of B.C. for Friday.
Hearings before the Supreme Court鈥檚 justices are planned to begin at 9:30 a.m. Eastern (6:30 a.m. Pacific) on both days.
The 91原创 Advance will be watching the live webcast and livetweeting opening statements from @91原创Advance.
This story will be updated on Thursday and Friday as proceedings continue.
Two minutes into the opening statement of TWU's lawyers, and Justice Richard Wagner has interjected with questions about the nature of the case.
鈥� 91原创 Advance (@91原创Advance)
Boonstra, for TWU: "Those who don't share those religious practices will tend not to join."
鈥� 91原创 Advance (@91原创Advance)
Justice Wagner: "In my book, that is called discrimination."
Debate with justices over how to treat the debates of the benchers 鈥� the heads 鈥� of the Law Society of Upper Canada, which decided not to accredit TWU law school grads.
鈥� 91原创 Advance (@91原创Advance)
Justice Abelia: "No matter the answer, could you tell me how you say the right of a person who is in compliance with a religious associational community, how their right is interfered with to practice their own religion, whether or not the law school is religious?"
鈥� 91原创 Advance (@91原创Advance)
McLachlin: says law society has no power over creation of law school. But would have power over whether admits lawyers from a law school that admitted, e.g., only men?
鈥� 91原创 Advance (@91原创Advance)
Justice Gascon: So the law society can look only at competence, and nothing else?
鈥� 91原创 Advance (@91原创Advance)
Staley: Yes.
From some earlier exchanges: Staley on the BC Court of Appeal's decision in TWU's favour: "They got it absolutely right."
鈥� 91原创 Advance (@91原创Advance)
Staley said there had been no substantive changes since the 2001 decision on TWU getting a teachers college.
鈥� 91原创 Advance (@91原创Advance)
Justice Abelia: "Well, it has though. We have since then put a charter blanket around same sex marriage."
In another exchange, Justice Moldaver brought up the rights of LGBTQ people who are legally married 鈥� the TWU Community Covenant only acknowledges heterosexual marriage.
鈥� 91原创 Advance (@91原创Advance)
"This case is about the accreditation of a particular law school. It is not about individuals." Guy Pratte, lawyer for the Law Society of Upper Canada.
鈥� 91原创 Advance (@91原创Advance)
Pratte: "Anyone can go to an accredited law school, and in fact they have." Says nothing stopping religious people from going to existing/other law schools.
鈥� 91原创 Advance (@91原创Advance)
Pratte seems to say that there could be an alternative, individual process to accredit students from a school such as TWU. But TWU was only interested in accreditation for its whole school, Pratte says.
鈥� 91原创 Advance (@91原创Advance)
"A diverse bar is a better bar, in the end." - Pratte.
鈥� 91原创 Advance (@91原创Advance)
Pratte arguing now that the Law Society would not be allowed to discriminate itself, and that it can't delegate its powers to create lawyers to a third party that does practice discrimination.
鈥� 91原创 Advance (@91原创Advance)
Pratte arguing now that the Law Society would not be allowed to discriminate itself, and that it can't delegate its powers to create lawyers to a third party that does practice discrimination.
鈥� 91原创 Advance (@91原创Advance)
Justice Brown asks what happens if TWU graduate, accredited in Saskatchewan, moves to Ontario. Would they be automatically accredited under existing rules that allow lawyers to move to new jurisdictions?
鈥� 91原创 Advance (@91原创Advance)
Justice Karakatsanis on the Community Covenant: "I don't think it's imposing beliefs on others."
鈥� 91原创 Advance (@91原创Advance)
Pratte says it's possible, discrimination in hiring would violate rules that bind every lawyer in Ontario. Law society would object, law license would be in jeopardy.
鈥� 91原创 Advance (@91原创Advance)
