APPEAL COURT REBUKED B.C. LAW SOCIETY FOR DENYING ACCREDITATION TO TRINITY WESTERN UNIVERSITY FOR A PLANNED LAW SCHOOL

Ian Mulgrew has written a Vancouver Sun article about today’s Appeal Court ruling against the B.C. Law Society and in support of TWU’s law school.

"B.C.’s top court has set up a Supreme Court of Canada showdown between the fundamental freedoms of religion and equality by giving a ringing endorsement to a proposed evangelical law school.In a stinging defeat for the legal profession’s governing body, the B.C. Court of Appeal said the Law Society of B.C. failed to balance important rights under the Charter of Rights and Freedoms by denying Trinity Western University accreditation for the planned school.
The regulators abrogated their responsibilities and acted unreasonably, infringing the school’s right to freedom of religion and associative rights, the province’s high bench explained.“This case demonstrates that a well-intentioned majority acting in the name of tolerance and liberalism, can, if unchecked, impose its views on the minority in a manner that is in itself intolerant and illiberal,” concludes the 66-page unanimous decision signed by Chief Justice Robert Bauman and four other justices.The court upheld a lower court ruling that the law society had not given the Langley-based institution a fair shake in rejecting its law school proposal.        

 TWU first proposed the law school in June 2012 and was initially granted preliminary approval to open this year by the Federation of Law Society of Canada and the B.C. Ministry of Advanced Education. Law societies in three provinces, however, opposed accrediting the school because of the university’s controversial Bible-inspired community covenant that faculty, staff and students are required to sign.Although members of the lesbian, gay, bisexual, transgender and queer communities are welcome to apply to TWU, they cannot attend without signing the creed that prohibits sexual intimacy except between heterosexual married couples.The decision “adds another dimension to an already complex issue,” the law society said in a news release. It now will consider an appeal to the country’s highest court.A spokesman for TWU said all Canadians should celebrate the ruling as a defense of freedom and diversity.Bruce Clemenger, president of The Evangelical Fellowship of Canada, an intervener in the case for the school, agreed:“This judgment is a strong affirmation of Canada’s religious diversity and the right of everyone to contribute to Canadian society without compromising their religious beliefs.” Others denounced the conservative judgment as out of step with the times.Kasari Govender, executive director of West Coast LEAF, an intervener for the law society, feared it “harkens back to an era of segregation.”“Just as separate water fountains or areas of the bus are understood as historical hallmarks of racism, separate educational institutions undermine our constitutional guarantee of equality today,” she added.In July, the Nova Scotia Court of Appeal similarly repudiated that province’s barristers’ society for the way it resolved the clash between bedrock rights.In Ontario, the biggest legal market in the country, the appellate bench supported the professional watchdog’s balancing act. The court backed the Law Society of Upper Canada’s refusal to accredit the school, noting: “The part of TWU’s community covenant in issue in this appeal is deeply discriminatory to the LGBTQ community, and it hurts.”TWU is seeking leave to appeal that decision to the Supreme Court of Canada, and the B.C. justices took a swipe at the Ontario decision in their ruling:“Indeed, it was evident in the case before us that the language of ‘offense and hurt’ is not helpful in balancing competing rights. The beliefs expressed by some benchers and members of the Law Society that the evangelical Christian community’s view of marriage is ‘abhorrent’, ‘archaic’ and ‘hypocritical’ would no doubt be deeply offensive and hurtful to members of that community.” The B.C. justices claimed not approving the law school would have a “severe impact … on the religious freedom rights at stake” and “minimal impact” on LGBTQ persons.“It represents a shockingly outdated view of the discrimination faced by the LGBTQ community,” said Ian Bushfield, director of the B.C. Humanist Association, another intervener.“This will ultimately have to be resolved at the Supreme Court of Canada, where we’re hopeful that secular and progressive values will win the day.”Trinity Western, founded in 1962 and made a degree-granting institution in 1979, insists it doesn’t go looking for violations of its code, but discipline for breaking it can include expulsion. “We are extremely disappointed that the decision did not take seriously the discriminatory impacts of the covenant on potential LGBTQ and female students, staff and faculty — in fact, the court seems to have completely ignored the impacts on women’s rights,” said Raji Mangat, director of litigation at West Coast LEAF.In B.C., the law society originally endorsed the law school but that triggered a backlash among lawyers standing up for LGBTQ persons.As a result, the society conducted a referendum Oct. 29, 2014 and a majority of the lawyers who voted rejected the TWU proposal.The benchers accepted that outcome on Oct. 31 and the minister of advanced education also revoked his consent for the school.TWU appealed and the B.C. Supreme Court found that the benchers acted improperly. Chief Justice Christopher Hinkson said they “allowed the members to dictate,” delegated their authority and infringed the school’s freedom of religion. The court of appeal disagreed with some of Hinkson’s reasoning but not the thrust of it — that the benchers “abdicated their duty.”“They made no decision at all, instead deferring to the vote of the majority in the referendum,” the appeal justices said.They added: “TWU is a relatively small community of like-minded persons bound together by their religious principles. It is not for everyone. For those who do not share TWU’s beliefs, there are many other options …“The majority must not, however, be allowed to subvert the rights of the minority TWU community to pursue its own values. Members of that community are entitled to establish a space in which to exercise their religious freedom.” Legal regulators in Alberta, Saskatchewan, Manitoba, New Brunswick, Prince Edward Island, and Newfoundland and Labrador have gone along with TWU, which hopes to begin accepting law students by Sept. 2018."

  by Ian Mulgrew 

imulgrew@postmedia.com

Twitter.com/ianmulgrew