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Issues Re: Trinity Western University – Proposed Law School

Law Society Members:

Re: Trinity Western University

As you may already be aware, there has been substantial national controversy and commentary regarding the application by Trinity Western University, a private institution in BC associated with the Evangelical Free Church of Canada (“TWU”’), to establish a law school in British Columbia.

On 16 December 2013 the Federation of Law Societies’ Canadian Common Law Program Approval Committee (the “Approval Committee), granted preliminary approval to the law school. It did so on the basis that, subject to a couple of required changes, the law school will meet the National Requirement that all law societies have now agreed will apply to graduates of existing and prospective law schools effective in 2015. To ensure consistency in application of the National Requirement, the Approval Committee was collectively appointed by all law societies to conduct this analysis. A copy of the full report is available on our website.

On 18 December 2013, the government of British Columbia approved TWU’s program. A legal challenge of this decision has been launched.

The controversy arises from TWU’s requirement that students, faculty and staff sign a Community Covenant that requires them to refrain from any sexual intimacy that violates the sacredness of marriage between a man and a woman. The Community Covenant has been denounced as discriminatory and law societies are being asked to deny admission to graduates of TWU’s law school program.

The issue involves the competing Charter rights of freedom of religion and equality and how to reconcile the two. In 2001, the Supreme Court of Canada in Trinity Western University v. College of Teachers, [2001] 1 S.C.R. 772, 2001 SCC considered this in the context of TWU’s desire to establish a teacher’s college. In determining that TWU could proceed, the Court concluded that neither of those rights is absolute and that the proper place to draw the line is generally between belief and conduct with the freedom to hold beliefs being broader than the freedom to act on them. Without evidence that teachers trained at TWU would foster discrimination in the public schools, the Court concluded that the freedom of individuals to adhere to certain religious beliefs while at TWU should be respected. The Court pointed out that, if a teacher in the public school system engaged in discriminatory conduct, that teacher could be subject to disciplinary proceedings thus circumscribing and reconciling the scope of the freedom of religion and equality rights that had come into conflict. A link to the decision follows.

The Approval Committee’s mandate was limited and did not extend to a consideration of whether there were any public interest reasons why future graduates of TWU’s program should be denied admission to law society bar admission programs. As a result, the Federation of Law Societies (the “Federation”) established a Special Advisory Committee to provide guidance to law societies on this public interest issue. Following a review of the law, including the case cited above, it concluded that there was no public interest reason to exclude future graduates of TWU’s law school program from admission to provincial bar admission programs. A copy of this report is also available on our website.

Benchers have reviewed and discussed the information earlier referenced and have been keeping abreast of developments as they occur.

The Law Society is mandated, by legislation, to regulate the practice of law and the legal profession in the public interest. In carrying out that mandate, Benchers have the authority, under Section 18(2) of the Law Society Act, 1999, SNL, c.L-9.1 (the “Act”) to make rules governing the admission of a student and the enrolment of a person as a member of the society. On 8 April 2013, Benchers approved the Canadian Common Law Degree Implementation Report, subject to the supervisory function to be exercised by the Federation, thereby adopting the National Requirement and agreeing to the appointment of the Approval Committee to assess whether law school programs meet that requirement. On 8 June 2013, Benchers approved certain rule changes necessary to give effect to the above resolution. Some of those changes were implemented immediately, while others were deferred to 2015 (in recognition of the fact that the National Requirement will not be implemented until then).

Each law society has a slightly different legislative framework, therefore, the approach to the issue in each law society has not been the same, nor has the result of law societies’ deliberations. To date, many law societies have confirmed their acceptance of the TWU law school program. However, the Law Society of Upper Canada refused to accredit it and the Law Society of Nova Scotia has agreed to accredit it only if the Community Covenant is abolished. TWU is launching law suits against both of these law societies.

TWU wishes to know whether the Law Society of Newfoundland and Labrador (the “Law Society”) will deny admission to graduates of its law school program.

As a regulatory body, as opposed to a representative one, Benchers determine whether applicants for admission have the necessary academic qualifications, character and fitness to practice law in Newfoundland and Labrador. Any decision about whether TWU graduates should be admitted or denied will have to be made in context and in accordance with the law. As indicated, the Approval Committee has, for all intents and purposes, approved TWU’s law school program making the question of whether they will have the necessary academic qualifications likely moot. Therefore, Benchers must decide whether graduates of TWU can have the requisite character and fitness to practice law in Newfoundland and Labrador and whether that determination can be made solely on the basis of their beliefs. Benchers must do so with the knowledge that, as a result of the National Mobility Agreement and the Agreement on Internal Trade (enacted by the Agreement on Internal Trade Implementation Act S.C. 1996, c. 17), graduates of TWU’s law school program will, if already admitted to the bar of another law society, be able to practice in Newfoundland and Labrador in accordance with our mobility Rules.

Benchers will be discussing the issue and making a determination of how the Law Society will deal with graduates of TWU’s law school program on 6 June 2014.

If you wish to comment on the issue, please do so by 26 May 2014.