Thursday, 24 April 2014

Accrediting Discriminatory Law Schools: Ontario Says No

Hot off the press: the Law Society of Upper Canada (Ontario's legal regulator) has rejected Trinity Western University's application to be an accredited law school.

TWU is a private, Christian law school located in British Columbia. Students must sign a 'Community Covenant' which requires them to make various commitments. As Jeremy Webber has explained:
It requires students “reserve sexual expressions of intimacy for marriage” and defines marriage as exclusively between a man and a woman. Students can be disciplined if they breach the covenant.
This means, for example, that validly-married gays and lesbians would be barred from TWU unless they renounced “sexual expressions of intimacy.” It is this discrimination against same-sex relationships at the foundation of the objections.


The legal framework for accreditation is complicated. A national body, the Federation of Law Societies of Canada, sets out criteria for law schools to be accredited by regulators across the country. It approved TWU's programme. But some individual law societies have had to decide whether or not to ratify this decision. Ontario's is one of them. British Columbia's is another: its decision-making body voted in favour last week (although steps have been taken to hold a ballot of all members).

My thought since the beginning has been that decisions either way -- to accredit or not to accredit -- would probably survive challenge in the courts. Canada's well-ingrained practice of deference to administrative decision makers means that where there are multiple possible reasonable outcomes, it is up to the decision maker and not the courts to choose.

TWU won a landmark judicial review in 2001 when their accreditation for a teacher training programme was rejected, for two reasons. First, BC exempts private institutions from some anti-discrimination obligations. Second, there was no evidence of discrimination by TWU graduates: signing the community covenant did not mean they would be homophobic in their professional lives.

But there are three problems for TWU now which undermine the 2001 precedent. 

First, other provinces do not have equivalent exemptions, and in making accreditation decisions -- as is the case in Ontario -- they do not have to give effect to the exemption. 

Second, in 2012, in Doré v. Barreau du Québec the SCC held that, when applying the Charter, a decision maker only has to achieve a proportionate balancing between Charter values and its statutory objectives. This arguably reduces or obviates the need for evidence of discrimination (although to the extent there is evidence of general harm from exclusionary practices, this could presumably be taken into account). Allied to this is the enhanced legal status of same-sex relationships: although the relevant law on equality has not changed drastically since 2001, the TWU covenant discriminates on the basis of sexuality by treating same-sex married couples differently from opposite-sex married couples, so the violation of Charter values is much more obvious than it was in 2001. 

Third. LSUC's decision-making process bore the hallmarks of "transparency, justification and intelligibility": its decision is clearly understandable and was taken pursuant to a process that was rigorously fair to all concerned.

For these reasons, I think TWU would face an uphill struggle in court. It may not decide to go down that route but if its graduates are unable to work in Canada's largest legal market, the cachet of a TWU law degree would be significantly reduced.

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