Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m F E B R U A R Y 2 0 1 7 3 E D I T O R ' S D E S K @canlawmag tim.wilbur@tr.com Director/Group Publisher: Karen Lorimer karen.lorimer@tr.com Managing Editor: Tim Wilbur tim.wilbur@tr.com Associate Editor: Mallory Hendry mallory.hendry@tr.com Copy Editor: Patricia Cancilla Art Director: Bill Hunter Production Co-ordinator: Catherine Giles catherine.giles@tr.com Contributors: Shannon Kari, Ian Harvey, donalee Moulton, Mark Cardwell, Geoff Ellwand, Jean Sorensen, Marg. Bruineman, Mallory Hendry, Jim Middlemiss, Jennifer Brown, Elizabeth Raymer, Alex Robinson Canadian Lawyer is published 11 times a year by Thomson Reuters Canada Ltd. All rights reserved. Contents may not be reprinted without written permission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. 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For all circulation inquiries and address changes send a copy of your mailing label or labels along with your request in writing to Canadian Lawyer, One Corporate Plaza, 2075 Kennedy Rd., Toronto, ON. M1T 3V4 Indexed in the Canadian Periodical Index awyers are often criticized for a lack of decisiveness. When clients come seeking legal advice, what they are often looking for is strategic advice, and a muddled answer can drive clients crazy. They may ask a lot of questions, but "what should I do?" is usually the most important one, and "it depends" is most often not the answer they want. But, lawyers protest, the law is rarely clear. Legal issues involve human beings, and human beings are neither predictable nor uniform. Enforcing rights is often a balancing act. Multiple interests need to be considered. If clients want certainty, they need to look elsewhere. While this can be maddening for clients who need to make deci- sions, recognizing that human rules and interactions are almost always complex is an inevitable byproduct of practising law. Lawyers are taught that the best way to advocate for a client is to understand their opponent's reasoning. A lack of decisive- ness, for a lawyer, is often an acknowledgement of complexity, not just waffling. This is why the dispute about Trinity Western's law school accreditation in our cover story (p. 26) is, in many ways, atypical of the legal community. Opponents of the proposed law school see its "community covenant" as deeply discriminatory against gays and lesbians. Proponents say the covenant is about a fundamental religious belief. Battle lines have been drawn — and even the nature of the dispute is disputed. "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," wrote a five-judge panel of the B.C. Court of Appeal. Yet Bill Flanagan, who was head of the Council of Canadian Law Deans when it sent a letter to the Federation of Law Societies with concerns about Trinity Western's application in 2013, says that the Council's objection "had nothing to do with [Trinity Western] being faith based. The con- cern was about discrimination." After last year's divisive election in the United States, this can seem like another insurmountable disagreement that is a zero-sum game. Two camps are battling it out and only one can win. Who is correct? What is the best outcome? The answer, unfortunately, may be "it depends." It depends what your beliefs are. It depends which group you represent and which right you feel is being infringed upon. But one thing is certain — a decision needs to be made. Whether it is the Supreme Court of Canada, Trinity Western, law societies or critics of the commu- nity covenant, some party needs to decide the best course of action. But acknowl- edging the complexity of getting there — and the well-reasoned and deep convic- tions of all parties — should be a requirement before the legal profession comes to any solution. What's fair? It depends By Tim Wilbur L CORRECTION In our January 2017 issue, we stated that Amanda Ghahremani is a lawyer with the Canadian Centre for International Justice in Montreal. In fact, the Canadian Centre for International Justice is located in Ottawa. Canadian Lawyer apologizes for the error.

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