#lsbc

In Slaw, University of Calgary law professor Alice Woolley discusses the process law societies took with regard to TWU's application for accreditation. While each body has been slightly different, it is her assertion that each proceeded in a quasi-legislative process. This is a problem according to Woolley because the accreditation decision is not legislative or quasi-legislative, but rather "[i]t is a decision directed at a specific party and determining the legal meaning and effect of that party's conduct. It is at its heart adjudicative."

What is the nature of the decision of the Law Societies and what does fairness require? 

The article can be read in entirety here.

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The result of these decisions is that in some provinces we have a majority of elected benchers, or law society members, who do not think TWU ought to be accredited. What we do not have is any clear articulation of the reasons for those decisions, or their basis in law or fact.

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A more adjudicative process at the law societies rejecting TWU’s application would, however, have had considerable advantages. If nothing else, it would have clarified exactly what definition of discrimination the law societies are using, and the way in which TWU contravenes it. That, in turn, would have clarified the substantive issues before the court on judicial review and allowed the court to determine whether that definition is reasonable (or correct, if that is the applicable standard) and within the legislative authority of the law society to apply. The court could consider, as it ought to do when giving deferential judicial review, whether the reasons offered by the law societies are transparent, justifiable and intelligible.

Instead, a court considering TWU’s application for judicial review will have nothing to go on other than the submissions made by parties to the law societies and to the court; a transcript of a debate; the question asked and the tally of the resulting vote. And in the case of New Brunswick and British Columbia, a vote of the membership is all that it will have. That means that even if it ostensibly applies a deferential standard, the court will end up having to essentially make its own decision on the record and the law. What choice will it have? There are no reasons for it to defer to, no decision for it to assess as justifiable, transparent and intelligible.

I have been quite critical of the law societies’ assumption of the jurisdiction and authority to define the appropriate balance between equality rights and freedom of religion, suggesting that human rights tribunals or legislatures are more appropriate institutions to make that assessment. However, had the law societies in fact taken on the task of articulating their jurisdiction over law school discrimination, had defined what constitutes discrimination at a law school and explained why TWU’s conduct is discriminatory, and had done so with relative impartiality and after a full evidentiary hearing, my concerns would be considerably ameliorated. Even if I did not agree with the result, I would understand and respect the authority of the law societies to reach it.

TWU School of Law Executive Director Earl Phillips talks to Ezra Levant about the LSBC vote to overturn accreditation of law school graduates.

Today is the final day for members of the Law Society of BC to vote in a "binding referendum" to reverse the accreditation of graduates from the Trinity Western University law school. There are serious questions over the constitutionality of this referendum and as per my previous post, the BC benchers continue to take heat from all sides.

In an article earlier this week entitled "Showing leadership on divisive issue", BC Bencher Tony Wilson offers a defence of the LSBC referendum. Once again, however, Wilson touts the issue as one of governance:

I have no horse in this race and I don’t care how you vote. I just want to ensure as many B.C. lawyers as possible vote on this issue so that no one is disenfranchised by geography or by their work or holiday schedules.

Seeking to enfranchise members of the law society would be an honourable decision, democratically speaking, if it were not for the fact that minority rights are not something that should be subjected to a vote in the first place, whether that is 50+1 or two thirds. Holding said vote and then being indifferent on the results is concerning. 

Next year, I will graduate from the University of Toronto Faculty of Law next year and begin articling in BC. If this were strictly an issue of whether the LSBC accredits graduates of Trinity Western's School of Law, I would have "no horse in this race" either. It's not and I DO care how you vote.

I care not just because I had the benefit of experiencing the outstanding quality of education at TWU for my undergraduate and graduate degrees, or because of the fact that as a lawyer my identity will remain wholly rooted in my Christian faith. I care because I want my extremely expensive legal education to mean something. I want the principles on which the Canadian legal system purports to depend to mean something. I want "Rule of Law" to mean something.

In his article "Lawyers’ Referendum Not Just About TWU – It’s About Our Commitment To The Rule Of Law", Derek Ross, Director of Legal Affairs for the Canadian Council of Christian Charities, aptly writes: 

We don’t leave human rights to be determined by popular opinion or by a majority vote. We can’t have a tyranny of the majority. That’s why we need courts. That’s why we have a Constitution.

My lawyer colleagues will recognize these words, or a variation of them, from the earliest days of their legal education. They were drilled into those of us who walked the halls of Canada’s law schools. Fierce opposition to the “tyranny of the majority” was an axiomatic concept in our law classes. It was a noble concept shared by all Canadians – or so we were told – but we in the legal profession had an especially important role in protecting it, as the so-called Guardians of the Rule of Law. It was a romantic ideal, but one many cherished – including me.

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I understand why one may disagree with TWU’s Community Covenant on a personal level. What I have difficulty understanding is why our liberal ideals of tolerating opposing views, accepting unpopular expressions and values, promoting religious diversity, and protecting minority rights, no longer seem to apply.

I have difficulty understanding how we can flatly ignore the rule of law and completely disregard Supreme Court precedent and human rights legislation directly on point – simply because we do not like or agree with them.

I especially have difficulty understanding how the LSBC – the very body charged with maintaining public confidence in the legal profession – can (rightly) conclude that the rule of law demands protection of TWU’s law school on the one hand, yet on the other hand can shirk its responsibility by deflecting a question of fundamental human rights to its members to be decided by popular vote.

Nevertheless, here we are, facing a referendum, and lawyers in British Columbia have a very important decision to make. Will Canada remain a place where a divergence of ideas and religious expression are tolerated? Will it remain a place where the rule of law is upheld?

Voting to accredit TWU’s law school in this referendum will send a vital message, but that message is not that the legal profession endorses TWU’s religious views and practices. The message, rather, is this: lawyers in Canada remain committed to opposing the tyranny of the majority and to upholding the rule of law.

-Jessie Legaree

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Derek Ross' article can be read here.

Ballots to all members of the Law Society of BC are in the mail for a binding referendum on the accreditation of TWU graduates. An article from Canadian Lawyer Magazine is being shared by both proponents and opponents of accreditation entitled "Is TWU referendum democracy or shirking of responsibility?" In short: the benchers can't win. 

If you watched the live feed of the benchers' meeting in September, you will know the predominant discussion surrounding TWU was not about the law at all, but about "governance". This seemed to stem from the commonly held belief that the question of TWU's accreditation will ultimately be determined by the Supreme Court of Canada. Indeed, Bencher Benjimen Meisner emphasized:

Anything, anything passed at this table is meaningless in the final decision of TWU... We talk about a binding referendum. There is no such thing as a binding referendum that has to take place... It's not binding on anyone. It's not binding on the courts!

While this statement is likely true, the underlying sentiment allowed governance to overshadow the fundamental freedoms of TWU graduates. The benchers overwhelmingly voted in support of a referendum - a referendum that puts the rights of minorities to majority rule. Understandably, they wanted the controversial decision out of their exhausted hands. It has resulted, however, in criticism from all sides.

Those who would like to see the benchers reverse their earlier decision to accredit the law school have called the referendum a "substantial failure of leadership". Some would like to have seen the benchers simply adopt the results of the June resolution (and reverse the accreditation), while others think it would have been more prudent to seek expert advice. Either way, they feel it was the benchers' responsibility to act.

Those who recognize the legal right of TWU's accreditation are also disappointed in the lack of courage demonstrated by benchers. It is notable that the benchers did seek expert advice by way of an independent legal opinion. It stated that if the benchers based their original decision to accredit on the law, then it cannot make a legal difference that a large number of their membership disagree. This should apply to the results of a referendum as well.

The 20 benchers who voted in April in support of TWU's accreditation after thorough consideration of the law can be comforted knowing that, as several benchers mentioned in September, the decision will ultimately be determined by the court. The law will eventually be applied even if the members misstep. However, that is not comforting to the Christian lawyers and law students whose freedom of religion is slipping away at the hands of their colleagues. 

Speaking to his motion for a referendum, Tony Wilson declared "waiting makes us look unresponsive, undemocratic, and indifferent." The benchers may have restored their reputation with some of the membership, but not with everyone. For those current and future lawyers and law students of faith, the benchers have chosen a path of indifference.

To subject minority rights to popular opinion is indifferent. To characterize a decision impacting fundamental freedoms and the balancing of charter rights as one of governance is indifferent. To care more about the will of the membership than the law is indifferent.

Bencher Lynal Doerksen fittingly concluded his remarks at the September meeting with the following warning:

If we have a referendum there may be an ironic result. The more successful it is, the more it may show that Trinity Western is in need of protection from us.

-Jessie Legaree

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"Is TWU referendum democracy or shirking of responsibility?" available here.