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Letters from OUTlaws to LSA (Feb 24 2014); LSA to OUTlaws (Mar 28 2014); OUTlaws to LSA (May 31 2014)
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UVic OUTlaws University of Victoria Faculty of Law
UBC OUTlaws University of British Columbia Faculty of Law
TRU OUTlaws Thompson Rivers University Faculty of Law
OUTlaw Alberta University of Alberta Faculty of Law
USask OUTlaws University of Saskatchewan College of Law
Manitoba OUTlaws University of Manitoba Faculty of Law
Windsor OUTlaws University of Windsor Faculty of Law
Western OUTlaws Western University Faculty of Law
Out In Law University of Toronto Faculty of Law
Osgoode OUTlaws Osgoode Hall Law School, York University
Queen's OUTlaw Queen's University Faculty of Law
uOttawa OUTlaw University of Ottawa Faculty of Law
OUTlaw at McGill McGill University Faculty of Law
UNB OUTlaw University of New Brunswick Faculty of Law
OUTlaw Society Schulich School of Law, Dalhousie University
May 31, 2014 Kevin Feth, President Law Society of Alberta Suite 800, Bell Tower 10104 103 Avenue Edmonton, Alberta T5J 0H8 Dear President Feth: Thank you for your letter of March 28, 2014 in which you responded to our correspondence concerning the accreditation of Trinity Western University's School of Law (“TWU”). Since you sent your response, the law societies in Ontario and Nova Scotia have voted not to accredit TWU, and the Law Society of British Columbia has been compelled to convene a Special General meeting in June to address this issue for a second time. We are pleased that the Benchers of various law societies are engaging in meaningful dialogue with their members and the public, and voting independently on motions regarding the accreditation of TWU. (1) The LSA cannot delegate discretionary decisions involving Charter and human rights values. In your letter
1, you focused on the history of and reasons why the Law Society of Alberta (“LSA”) delegated the
accreditation of all common law degree programs to the Federation of Law Societies of Canada (“FLSC”). In our respectful opinion, you have not squarely addressed the concerns we raised (in our letter of February 24, 2014
2), or the concerns of the faculties of Alberta's two law schools (in their letter of January 28, 2014
3), or of
innumerable other concerned parties, including the Council of Canadian Law Deans (in their letter of November 20, 2012 to the FLSC
4).
As the law school faculty members identified in their letter, the LSA, through rule 50(2)(a)(ii), has delegated to the FLSC its “decision-making power under section 37 of the Legal Profession Act to evaluate the academic qualifications of applicants for admission to the Society as students-at-law.”
5 There is nothing in the Legal
Profession Act (“LPA”) which permits the delegation of this power. We believe that the choice to delegate this power subverts the LSA’s duty to consider the Canadian Charter of Rights and Freedoms (“Charter”) and the Alberta Human Rights Act (“AHRA”) in making discretionary decisions. Choosing whether to accredit law schools is a discretionary decision-making power granted by the legislature by way of the LPA. As a body created by statute, the LSA must take into account all relevant considerations
1 Law Society of Alberta President's Letter to OUTlaws Canada, 28 March 2014, available online:
<http://www.scribd.com/doc/227381229/Letter-from-Law-Society-of-Alberta-President-to-OUTlaws> 2 OUTlaws Canada Letter to the Law Society of Alberta, 24 February 2014, available online:
<http://www.scribd.com/doc/227380942/OUTlaws-Letter-to-Law-Society-of-Alberta> 3 Letter from Members of Alberta Law School Faculties to Law Society of Alberta, 28 January 2014, available online:
<http://www.scribd.com/doc/227381357/Alberta-Law-Faculty-Letter-to-Law-Society-of-Alberta> 4 Canadian Council of Law Deans Letter to the Federation of Law Societies of Canada, 20 November 2012, available online:
<http://www.scribd.com/doc/156263670/CCLD-Letter-to-FLSC> 5 Supra, note 3.
2
when making discretionary decisions. It must exercise its discretion independently, and not under the direction or at the discretion of a third party. By surrendering its discretion to the FLSC to make independent decisions under the authority granted solely to the LSA by statute, the LSA has sidestepped the requirement that it make decisions consistent with the Charter and the AHRA. The mission of the LSA is to protect the public interest. One of its goals is to “uphold and preserve the principles of justice fundamental to a free democratic society”. These principles necessarily include those found in constitutional and quasi-constitutional laws (namely, the Charter and the AHRA). In Doré
6, the Court
confirmed that “administrative decision-makers must act consistently with the values underlying the grant of discretion, including Charter values,” “administrative decisions are always required to consider fundamental [constitutional] values,” and that “administrative bodies are empowered, and indeed required, to consider harter values within their scope of expertise.”
7
Further, the AHRA is quasi-constitutional law. We believe that the LSA is required to take into account the AHRA in situations where human rights issues arise. In Trinity Western University v. British Columbia College of Teachers, the Supreme Court stated that administrative decision-makers are entitled to consider the discriminatory practices of institutions when considering the public interest.
8 Because there is a real risk of
discrimination if TWU were to maintain or enforce its discriminatory covenant in relation to the operation of its law school, and because a decision by the LSA (by proxy) to accredit TWU could involve the LSA’s imprimatur to TWU’s discriminatory covenant, there is at least a prima facie case that the LSA is operating in contravention of the AHRA and section 15 of the Charter. Consequently, before the LSA can accede to the accreditation decision of the FLSC, the LSA must engage in an analysis of balancing rights and try to resolve the claims in a way that will preserve all competing rights. In a recent case involving the balancing of Charter rights, the Court stated that the approach favoured involves a “just and proportionate balance” between competing rights.
9 In other words, a decision-maker should first
determine whether competing rights are engaged on the facts, and then “try to resolve the claims in a way that will preserve both rights” in order to avert conflict.
10
By delegating its accreditation decision to the FLSC, the LSA has failed to meet its duty to make statutorily-authorized discretionary decisions consistent with the rule of law and, specifically, in accordance with the Charter and quasi-constitutional human rights laws. In effect, it has delegated this analysis to a third party not contemplated by the legislature nor governed in accordance with the LPA. In doing so, it has not met its legal duty to undertake an analysis of the Charter and AHRA values engaged on the facts. We believe that this duty cannot be delegated exclusively to a third party, which is what has been done in this case. And, while then-President Jensen indicated in his broadcast to LSA members on January 14 that the LSA “would welcome a judicial determination on this question,”
11 this position reveals the LSA’s reluctance to make an independent
decision that it is statutorily required to make, informed by Charter and AHRA values. A judicial determination, like the opinion of a third party such as the FLSC (and other provincial law societies throughout Canada for that matter), should be used as guidance for the LSA in its decision-making authority. However, the LSA is not permitted simply to await a judicial determination before deciding to act independently to make its own determination. (2) Delegating this accreditation decision conflicts with the LSA’s Strategic Plan. Further, the LSA’s decision to delegate accreditation decisions to the FLSC puts it in conflict with its own Strategic Plan, whether or not these decisions engage Charter and AHRA values.
6 Doré v Barreau du Québec, 2012 SCC 12, available online: <http://www.canlii.org/en/ca/scc/doc/2012/2012scc12/2012scc12.pdf>
7 Ibid. at paras. 24, 35.
8 Trinity Western University v British Columbia College of Teachers, 2001 SCC 31 at para 27, available online: <http://scc-
csc.lexum.com/decisia-scc-csc/scc-csc/scc-csc/en/item/1867/index.do> 9 R v NS, 2012 SCC 72, at para 31, available online: <http://www.canlii.org/en/ca/scc/doc/2012/2012scc72/2012scc72.html>
10 Ibid., at para. 32.
11 Statement of then-Law Society of Alberta President Carsten Jensen on Trinity Western University accreditation, 14 January 2014,
available online: <http://www.lawsociety.ab.ca/docs/default-source/bulletins/bulletin_2014_01jan_14_no1.htm?sfvrsn=4>
3
(i) Delegating an accreditation decision is not in the interest of the public in Alberta.
First, the LSA envisions itself “as a model for protecting the public interest and preserving the fundamental principles of justice through an independently regulated … legal profession,”
12 regulated in the public interest.
We believe that, by delegating accreditation to FLSC, the LSA has made itself wholly dependent on the FLSC in this matter, subverting the interests of the LSA and Albertans to those of the FLSC and its constituent bodies. Through section 37 of the LPA, the legislature chose to vest governance of the LSA in its Benchers. Delegation of Benchers’ authority is contemplated specifically in subsections 37(3) and (5). Under the former, responsibility for the matters under the control of the LSA described in subsection 37(1) may be delegated to third parties. However, these matters relate to the academic qualifications of students-at-law, and various other requirements that such individuals must meet before being admitted as members of the LSA. The matter of accreditation is not addressed in subsection 37(1). The delegation of core operational decisions to an outside body with its own mandate and governance structure is not contemplated by the LPA.
(ii) Delegating an accreditation decision conflicts with other LSA goals. Second, as indicated by then-President Jensen in his commentary in the National Post on February 7, the LSA’s “primary concern regarding the TWU application is the preservation of mobility for lawyers between Canada’s provinces and territories.”
13 While contemplating national mobility as the primary concern as regards
the TWU application may address the LSA’s strategic goal of “Access to Justice,” it conflicts squarely with two other strategic goals: 'Public Confidence' and 'Principles of Justice', especially considering that stakeholder submissions to the LSA, the FLSC, and that all of the other law societies have directly addressed Charter and human rights values. By allowing the FLSC to make an accreditation decision for a new law school where the spectre of discrimination is an obvious concern, the LSA has failed to undertake the analysis required to determine whether it complies with Charter and AHRA values, the objectives of its enabling statute, and indeed its own Strategic Plan. Further, since two of Canada’s oldest and most revered law societies have decided not to accredit TWU and instead to respect the values embodied in the Charter regarding discrimination and sexual orientation, the objective of national mobility that the LSA seeks to achieve by wrongly delegating decision-making authority to the FLSC is a moot point. Together, the Law Society of Upper Canada and the Nova Scotia Barristers’ Society represent nearly half of all legal practitioners in Canada, and the momentum in the Canadian legal profession, as well as Canadian jurisprudence is towards inclusivity as an overriding cultural concern. TWU’s highly exclusive discriminatory language in its admissions covenant agreement is in direct conflict with both the momentum in the law and the legal profession, as well as with mainstream Canadian society. To delegate decisions to the FLSC in order to facilitate national mobility will thus be ineffective. Moreover, the LSA has not addressed how such delegation addresses its other strategic goals.
(iii) Delegating this accreditation decision conflicts with the LSA’s “respect” value.
Finally, the LSA in its Strategic Plan identifies “respect” as one of its values, which it defines as “inclusion, diversity and equity in the profession and in the Law Society.”
14 Goal 4 of the Plan also identifies a strategy to
promote inclusion and diversity in the legal profession.”15
The LSA also has a policy on workplace diversity and equality for lawyers and law firms it engages for LSA work. With respect, we believe that it is plainly inconsistent for the LSA to proclaim its diversity and equality values while at the same time choosing to 'hold its nose' and let the FLSC accredit on its behalf a school with policies and practices that are discriminatory on their face.
12
About the Law Society of Alberta, Law Society of Alberta website <http://www.lawsociety.ab.ca/about_us/overview.aspx> 13
Carsten Jensen, "Marginalized by a Christian law school ," The National Post, 7 February 2014, available online <http://fullcomment.nationalpost.com/2014/02/07/carsten-jensen-marginalized-by-a-christian-law-school/> 14
Law Society of Alberta Strategic Plan for 2014-16 at p. 3, available online <http://www.lawsociety.ab.ca/docs/default-source/default-document-library/2014-16_strategic-plan_final-.pdf> 15
Ibid., at p. 10.
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If the LSA truly values respect, inclusion, diversity, and equity in the legal profession in Alberta, it must insist that it reserve the right to decide whether to accredit TWU. It must engage in a proper undertaking of public consultation and only make its decision after all stakeholders in the province have had a chance to make submissions for consideration. Only then can the LSA live up to its legal obligations to represent the public interest in a manner consistent with Charter and AHRA values, the objectives of its enabling statute, and the LSA’s own Strategic Plan. Sincerely, Christine Wilson, JD Candidate (2015) Shad Turner, JD Candidate (2015) President & Vice President OUTlaw Alberta University of Alberta Faculty of Law [email protected] | [email protected] Sent on behalf of OUTlaw Alberta and other concerned members of OUTlaws Canada.
/st/dj c. Philip Bryden, Dean, Faculty of Law, University of Alberta,
Room 487, Law Centre, 111 - 89 Avenue, Edmonton, AB, T6H 2H5; [email protected] Ian Holloway, Dean, Faculty of Law, University of Calgary, 2500 University Drive NW, Calgary, AB, T2N 1N4; [email protected] Fred W. Headon, President, Canadian Bar Association, 500-865 Carling Avenue, Ottawa, ON, K1S 5S8; [email protected] Robert A. Peterson, Co-Chair, Sexual Orientation & Gender Identity Conference, Canadian Bar Association, 500-865 Carling Avenue, Ottawa, ON, K1S 5S8; [email protected] Frank Durnford, Chair, Sexual Orientation & Gender Identity Conference, Alberta Branch, Canadian Bar Assoc., Enbridge Pipelines Inc., 3000-425 1 Street SW, Calgary, AB, T2P 3L8; [email protected] Bill Flanagan, President, Canadian Council of Law Deans, 57 Louis Pasteur Street, Ottawa, ON, K1N 5N5; [email protected] Marian De Souza, President, Alberta Branch, Canadian Bar Association, Alberta Lawyers' Assistance Society, 3400, 150 - 6 Avenue SW, Calgary, AB, T2P 3Y7; [email protected]
E1975830.DOCX;1
March 28, 2014
Christine WilsonShad TurnerKendra MorrisBrent RyanSarah MarshLeif JensenLinh LeBruce GordonPatrick JangLana McCreaDan SnyderFlora VinebergGord Lamb
Cassidy ThomsonJoshua ShawExecutive, Western University Faculty of LawLeah StaplesTed FlettBenjamin VandorpeJean-Paul BevilacquaElla HenryPedram MoussaviWilliam GoldbloomAllison VanekKatelyn Scorer
OUTlaws Canada
Dear Members of OUTlaws:
RE: Accreditation of Trinity Western University School of Law
Thank you for your letter dated February 24, 2014 and for taking the time to express your concerns about the decision by the Federation of Law Societies of Canada to grant preliminary approval to Trinity Western University’s proposed law degree program.
In December 2013, the Law Society of Alberta formally delegated the accreditation of all common law degree programs to the Federation’s Canadian Common Law Program Approval Committee. As a consequence, our Law Society recognizes the preliminary approval granted to the TWU program.
I will share with you the background to and rationale for our decision, as well as our position on the possibility of amending the approval criteria to include a non-discrimination clause.
Over the past few years, the Federation of Law Societies of Canada has led an effort to define and implement on a national scale the competencies and skills required of a Canadian common law graduate who seeks admission to the bar. The outcome of this effort included a uniform national content requirement for Canadian law degrees (approved in 2010) and a uniform national requirement for Canadian common law degrees including assessment and accountability of all Canadian common law degree granting institutions (approved in 2011).
E1975830.DOCX;1
During this policy making, the Federation consulted the Deans of Canada’s law schools in order to understand their perspectives. The conclusion reached was to balance the need for consistency in admission criteria and the needs of the academy. The accreditation process drives consistency across the country in the admission criteria to the practice of law. The academy’s needs include academic freedom, the ability to innovate, and each university’sresponsibility for its own academy, programs and teaching methods.
The national degree requirement will apply to graduates of all Canadian common law schools effective in January 2015. All common law degree programs – currently 83 -- will be reviewed annually by the Federation’s Canadian Common Law Program Approval Committee. Any new law degree program receiving preliminary approval from the Approval Committee will be subject to annual review to ensure compliance with the national requirement.
The national requirement is dependent on clear criteria, applied consistently across the country, administered by a single committee with the necessary expertise and experience drawn from multiple jurisdictions. A patchwork approach to the common law degree approval process – applying different factors, in different ways, and reaching different results from jurisdiction to jurisdiction – is inconsistent with establishing and maintaining national standards.
Since the Law Society of Alberta previously approved the national requirements, our Benchers formally delegated the accreditation of all common law degree programs to the Approval Committee in December 2013. This step fully implemented the Benchers’ policy decision from 2011 to adopt the national standard. The formal delegation was made prior to the release of the Federation’s decision about the Trinity Western Application. As a consequence, the Approval Committee’s decision to grant preliminary approval to the proposed Trinity Western University common law degree is recognized by our law society.
While provincial and territorial regulators undoubtedly have a mandate to define admission standards to the practice of law, the Law Society of Alberta has concluded that Canadian law societies need to maintain and endorse a national approach to defining and applying those standards.
We reached that conclusion because the mobility rules flowing from the National Mobility Agreements and the Agreement on Internal Trade compel a consistent approach to the approval of law degree programs. Mobility creates a high level of interdependence among Canada’s law societies since a lawyer licensed by any one law society is essentially entitled to practise law in every other Canadian jurisdiction. Mobility is a client focused approach to regulation. Clients and their work frequently cross provincial and territorial boundaries. The mobility regime was undertaken in the public interest, and facilitates clients’ choice of counsel, promotes efficiencies for lawyers with multi-jurisdictional practices, and encourages competition. We cannot have contradictory approval criteria and outcomes across the country, risking the result that a Canadian common law degree is recognized in one jurisdiction but not another, and a lawyer’s qualifications are
E1975830.DOCX;1
accepted in one jurisdiction but not another. Inconsistent decisions would tear away at the fabric of national mobility.
In January 2014, our law society communicated to the other Canadian law societies and the Federation that a review of the existing criteria by the Federation is advisable. That is consistent with the recommendation of the Federation’s Special Advisory Committee that the possibility of amended criteria, including a non-discrimination clause, should be discussed.
While a review of the approval criteria is prudent so that all stakeholders may voice their concerns and provide insight, the Law Society of Alberta has taken no position at this time on whether there should be additional approval criteria, or what those criteria might entail.
As you appreciate, part of the challenge for a non-discrimination provision is how to balancecompeting Charter and human rights values, such as freedom of religion and equality right s,and how to address the tension between competing values within the accreditation process, without unnecessarily compromising academic freedom and institutional autonomy.
Thank you for taking the time to share your views on these important issues. If the Federation undertakes a review of the approval criteria, as our law society hopes they will, I would encourage your group to assist in the discussion by providing submissions. The public consultation should be national in scope, engaging all perspectives.
Yours truly,
Kevin Feth, QCPresident, Law Society of Alberta
cc: Philip Bryden, Dean, Faculty of Law, University of Alberta ([email protected])Fred W. Headon, President, Canadian Bar Association ([email protected])Marian De Souza, President, Alberta Branch, Canadian Bar Association ([email protected])
UVic OUTlaws University of Victoria Faculty of Law
UBC OUTlaws University of British Columbia Faculty of Law
TRU OUTlaws Thompson Rivers University Faculty of Law
OUTlaw Alberta University of Alberta Faculty of Law
USask OUTlaws University of Saskatchewan College of Law
Manitoba OUTlaws University of Manitoba Faculty of Law
Windsor OUTlaws University of Windsor Faculty of Law
Western OUTlaws Western University Faculty of Law
Out In Law University of Toronto Faculty of Law
Osgoode OUTlaws Osgoode Hall Law School, York University
Queen's OUTlaw Queen's University Faculty of Law
uOttawa OUTlaw University of Ottawa Faculty of Law
OUTlaw at McGill McGill University Faculty of Law
UNB OUTlaw University of New Brunswick Faculty of Law
OUTlaw Society Schulich School of Law, Dalhousie University
February 24, 2014 Law Society of Alberta Suite 800, Bell Tower 10104 103 Avenue Edmonton, Alberta T5J 0H8 Dear President Feth, President-Elect Eamon, and Benchers: We are writing in our capacities as leaders of LGBTQ affinity groups and organizations at Canadian law schools regarding Trinity Western University’s (TWU’s) proposed law school. TWU's program is currently seeking the approval of the provincial law societies for admission to the bar of each jurisdiction. In your jurisdiction, this accreditation process falls within the authority of the Law Society of Alberta (LSA). We have serious reservations about TWU’s discriminatory policies towards LGBTQ students and the suitability of TWU as a forum to train future lawyers. We urge you to refuse or qualify TWU’s accreditation. We also encourage you to advance an accreditation requirement in your province that prevents any accredited law school from discriminating on a constitutionally protected ground, such as sexual orientation. Central to our concerns is the fact that TWU forces its students to sign a 'Community Covenant Agreement' requiring the student to abstain from “sexual intimacy that violates the sacredness of marriage between a man and a woman”.
1 Students who do not comply with the agreement may be removed from the university without
readmission.2 The Community Covenant Agreement is inconsistent with the Charter of Rights and Freedoms
and provincial human rights legislation. Accrediting a legal studies program that operates under this policy fetters the profession’s obligation to serve the public interest. Over the past year, a number of prominent stakeholders have echoed this sentiment. These include the Canadian Council of Law Deans,
3 the Canadian Bar Association,
4 the Canadian Federation of Students,
5
numerous prominent lawyers and academics, law school faculty councils,6 editorial boards,
7 and over one
thousand law students.8 They have rightly pointed out that TWU's policies place a de facto quota on the
number of law school places available to LGBTQ students. More broadly, they assert that given these discriminatory operating policies, TWU is not an appropriate venue for teaching constitutional law, nurturing
1 Trinity Western University Community Covenant Agreement at page 3, available online: <http://twu.ca/studenthandbook/twu-community-
covenant-agreement.pdf> 2 Trinity Western University Student Handbook, Student Accountability Process, available online:
<http://twu.ca/studenthandbook/university-policies/student-accountability-process.html> 3 Canadian Council of Law Deans Letter to the Federation of Law Societies of Canada, November 20, 2012, available online:
<http://www.scribd.com/doc/156263670/CCLD-Letter-to-FLSC> 4 Canadian Bar Association Letter to the Federation of Law Societies of Canada, March 18, 2013, available online:
<http://www.scribd.com/doc/156265274/CBA-Letter-to-FLSC> 5 Canadian Federation of Students Letter to the Federation of Law Societies of Canada, December 19, 2013, available online: <http://cfs-
fcee.ca/open-letter-reconsider-approval-of-law-school-at-trinity-western-university/> 6 Four law school faculty councils have passed motions condemning the Community Covenant Agreement: Osgoode
(http://bit.ly/1lCEL16), Queen's (http://bit.ly/1e7xLrj), UBC (http://bit.ly/1laMBSW), and Dalhousie (http://bit.ly/1flQgX2). Faculty from Alberta's 2 law schools have also expressed their concerns in an open letter (http://bit.ly/1flYkL6). 7 The Globe and Mail, Trinity Western should emulate its U.S. equivalents, July 25, 2013, available online:
<http://www.theglobeandmail.com/globe-debate/editorials/trinity-western-should-emulate-its-us-equivalents/article13441598/> 8 Osgoode Hall Law School Students’ Letter to the Federation of Law Societies of Canada, March 18, 2013, available online:
<http://www.scribd.com/doc/156265623/Letter-from-Osgoode-Law-Students-to-the-FLSC>; Media Release from Canadian Law Students, March 18, 2013, available online: <http://www.scribd.com/doc/156265623/Letter-from-Osgoode-Law-Students-to-the-FLSC>
2
legal ethics, or promoting academic freedom. Our agreement with these views is underscored by the fact that many of our LGBTQ peers have been subjected to systemic discrimination, exclusion, and hatred related to their sexual orientation. It would be tremendously disheartening to see the profession's leadership support policies which perpetuate these unfortunate experiences and constrain access to legal education for LGBTQ individuals. Institutionalizing the targeted humiliation of LGBTQ individuals is unacceptable. The professional community turns to the law society for leadership and governance on these important issues. To date, it has been disappointing to see some law societies remain silent on this issue - deferring to Federation of Law Societies of Canada (FLSC). In December, it was with profound disbelief that we learned of the FLSC’s recommendation that their provincial members approve TWU’s law school. This was, in effect, a rubber stamp for discrimination: TWU’s discriminatory covenant stands in direct opposition to the significant progress that has been made in the recognition of the rights of LGBTQ individuals over the past decade. Further, the FLSC’s protracted and closed-door process was patently not in the public interest contrary to the mandate of the LSA. Notably, there was no opportunity for anyone to present evidence of discrimination by TWU, or the effect of its covenant on LGBTQ faculty or students, even though the absence of such evidence was a key finding on which the committee relied to recommend that the proposed law school be recognized by the FLSC’s members. Perpetuating the flawed process, B.C.’s Minister of Advanced Education relied heavily on the FLSC’s decision to justify his own, approving the degree-granting program the day after the FLSC report was released. In 2014, the FLSC’s decision offends more than contemporary Canadian sensibilities. Our understanding is that it is also legally incorrect:
First, the FLSC relies heavily on a 2001 Supreme Court of Canada (SCC) judgment in a case involving TWU and the B.C. College of Teachers.
9 Although this precedent cannot be ignored, over
the last 12 years the law has transformed. The 2013 case of Whatcott10
departs from the 2001 Trinity Western decision in important ways, notably by wholly rejecting the “hate the sin, love the sinner” excuse adopted by TWU to continue its discrimination in 2001. An institution cannot ban “sexual intimacy that violates the sacredness of marriage between a man and a woman” (i.e., sex between LGBTQ individuals) without effectively banning LGBTQ individuals. The effect of the covenant is to exclude anyone who lives in a committed same-sex relationship, which is an issue that was completely overlooked in the 2001 SCC decision.
Second, the 2012 SCC decision in Doré11
now imposes an obligation on law societies to apply the Charter and provincial and territorial human rights codes every time they make a decision. The B.C. College of Teachers was under no such obligation in 2001. In practice, this means that private religious organizations can adopt membership rules that reflect their beliefs, but the government and other organizations operating in the public interest are not bound to approve such rules if they discriminate against individuals.
Such significant inconsistencies should prompt LSA to heavily scrutinize the FLSC recommendation. The law schools we attend have made a priority of making legal education more accessible, practical, and representative of Canadian society. The leadership of the Alberta profession should demonstrate the same interests in rendering their decision on TWU’s accreditation. As future lawyers, we are committed to equality and promoting the values of the Charter within our practices. Our experiences have taught us that such professional standards can only be fostered in a learning environment that enshrines these values in policy and practice. At the most basic level, it is unjust to open a law school that openly discriminates against a vulnerable segment of the Canadian public. We strongly recommend that you oppose or place conditions on TWU's LSA
9 Trinity Western University v British Columbia College of Teachers, 2001 SCC 31, available online: <http://scc-csc.lexum.com/decisia-
scc-csc/scc-csc/scc-csc/en/item/1867/index.do> 10
Saskatchewan (Human Rights Commission) v Whatcott, 2013 SCC 11, available online: <http://scc-csc.lexum.com/decisia-scc-csc/scc-csc/scc-csc/en/12876/1/document.do> 11
Doré v Barreau du Québec, 2012 SCC 12, available online: <http://www.canlii.org/en/ca/scc/doc/2012/2012scc12/2012scc12.pdf>
3
accreditation. We look forward to a properly balanced and progressive decision from the law society on this important issue, and appreciate this opportunity to provide input to the process. Should you wish to correspond with us as a group, please email [email protected]. Sincerely,
Christine Wilson, JD Candidate (2015) Shad Turner, JD Candidate (2015) President & Vice President OUTlaw Alberta University of Alberta Faculty of Law [email protected]
Flora Vineberg, JD Candidate (2015) Gord Lamb JD Candidate (2015) Co-Chairpersons UBC OUTlaws University of British Columbia Faculty of Law [email protected], [email protected]
Kendra Morris, JD Candidate (2014) Brent Ryan, JD Candidate (2015) Sarah Marsh, JD Candidate (2014) Executive TRU OUTlaws Thompson Rivers University Faculty of Law [email protected]
Cassidy Thomson, JD Candidate (2015) Executive UVic OUTlaws University of Victoria Faculty of Law [email protected]
Leif Jensen, JD Candidate (2014) Linh Le, JD Candidate (2015) Bruce Gordon, JD Candidate (2016) Co-Coordinators USask OUTLaws University of Saskatchewan College of Law [email protected]
Joshua Shaw, JD Candidate (2015) Co-Chair
Manitoba OUTlaws Robson Hall Faculty of Law, University of Manitoba outlaws@umanitoba
Patrick Jang, JD Candidate (2014) Co-President Queen's OUTlaw Queen's University Faculty of Law [email protected]
Executive Western OUTlaws Western University Faculty of Law [email protected]
Lana McCrea, BCL/LLB Candidate (2015) Dan Snyder, BCL/LLB Candidate (2015) Co-Presidents OUTlaw at McGill McGill University Faculty of Law [email protected]
Leah Staples, JD Candidate (2015) President Schulich OUTlaw Society Schulich School of Law, Dalhousie University [email protected]
4
Ted Flett, JD Candidate (2016) Chair UNB OUTlaw University of New Brunswick Faculty of Law [email protected]
Allison Vanek, JD Candidate (2014) Executive Member uOttawa OUTlaw University of Ottawa Faculty of Law [email protected]
Benjamin Vandorpe, JD Candidate (2015) Jean-Paul Bevilacqua, JD Candidate (2015) Co-Chairs Osgoode OUTlaws Osgoode Hall Law School, York University [email protected]
Katelyn Scorer, JD Candidate (2015) President Windsor OUTlaws University of Windsor Faculty of Law [email protected]
Ella Henry, JD Candidate (2015) Pedram Moussavi, JD/MBA Candidate (2015) William Goldbloom, JD Candidate (2015) Co-Presidents Out In Law University of Toronto Faculty of Law [email protected]
/dj c. Lorne Sossin, Dean, Osgoode Hall Law School, York University,
Ignat Kaneff Building, 4700 Keele Street, Toronto, ON, M3J 1P3; [email protected] Mayo Moran, Dean, Faculty of Law, University of Toronto, 84 Queen's Park, Toronto, ON, M5S 2C5; [email protected] Camille Cameron, Dean of Law, University of Windsor, 401 Sunset Avenue, Windsor, ON, N9B 3P4; [email protected] Nathalie Des Rosiers, Dean, Common Law Section, Faculty of Law, University of Ottawa, Fauteux Hall, 57 Louis Pasteur Street, Ottawa, ON, K1N 6N5; [email protected] Bill Flanagan, Dean, Faculty of Law, Queen's University, Macdonald Hall, 128 Union Street, Kingston, ON, K7L 3N6; [email protected] W. Iain Scott, Dean, Faculty of Law, Western University, 151 Richmond Street, London, ON, N6A 3K7; [email protected] Daniel Jutras, Dean, Faculty of Law, McGill University, Room 15, Chancellor Day Hall, 3644 Peel Street, Montreal, QC, H3A 1W9; [email protected] Kimberley Brooks, Dean, Schulich School of Law, Dalhousie University, Weldon Law Building, 6061 University Avenue, P.O. Box 15000, Halifax, NS, B3H 4R2; [email protected] John R. Williamson, Interim Dean, Faculty of Law, University of New Brunswick, Room 220, Ludlow Hall, P.O. Box 4400, Fredericton, NB, E3B 5A3; [email protected]
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Lorna Turnbull, Dean, Faculty of Law, University of Manitoba, Room 301A, Robson Hall, 224 Dysart Road, Winnipeg, MB, R3T 2N2; [email protected] Jeremy Webber, Dean, Faculty of Law, University of Victoria, P.O. Box 1700, STN CSC, Victoria, BC, V8W 2Y2; [email protected] Mary Anne Bobinski, Dean, Faculty of Law, University of British Columbia, Allard Hall, 1822 East Mall, Vancouver, BC, V6T 1Z1; [email protected] Anne N. Pappas, Interim Dean, Faculty of Law, Thompson Rivers University, 900 McGill Road, Kamloops, BC V2C 0C8; [email protected] Philip Bryden, Dean, Faculty of Law, University of Alberta, Room 487, Law Centre, 111 - 89 Avenue, Edmonton, AB, T6H 2H5; [email protected] Sanjeev Anand, Dean, College of Law, University of Saskatchewan, Room 250, Law Building, 15 Campus Drive, Saskatoon, SK, S7N 5A6; [email protected] Fred W. Headon, President, Canadian Bar Association, 500-865 Carling Avenue, Ottawa, ON, K1S 5S8; [email protected] Robert A. Peterson, Co-Chair, Sexual Orientation & Gender Identity Conference, Canadian Bar Association, 500-865 Carling Avenue, Ottawa, ON, K1S 5S8; [email protected] James Edward Merrigan, Chair, Constitutional & Human Rights Section, Canadian Bar Association, Poole Althouse, 49-51 Park Street, PO Box 812 Stn Main, Corner Brook, NL, A2H 6H7; [email protected] Bill Flanagan, President, Canadian Council of Law Deans, 57 Louis Pasteur Street, Ottawa, ON, K1N 5N5; [email protected] The Honourable Amrik Virk, Minister of Advanced Education (BC), Room 133, Parliament Buildings, Victoria, BC, V8V 1X4; [email protected] Lisa Marie Barnet, President, Young Lawyers' Division, Canadian Bar Association, Ontario Power Authority, 1600-120 Adelaide St W, Toronto, ON, M5H 1T1; [email protected] The Honourable Dave Hancock, Minister of Innovation and Advanced Education (AB), 408 Legislature Building, 10800 97 Avenue, Edmonton, AB, T5K 2B6; [email protected] Marian De Souza, President, Alberta Branch, Canadian Bar Association, Alberta Lawyers' Assistance Society (Assist), 3400, 150 - 6 Avenue SW, Calgary, AB, T2P 3Y7; [email protected]
