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 29 Ontario Court of Appeal in its decision on Trinity Western last June. The Nova Scotia Barristers' Society was initially willing to accredit the university's law school if it amended the covenant and that option has been raised by others as a potential compromise. For those at Trinity Western, though, it is not a viable option. "This is not just a Code where we can parse these words or find a way around it," says Phil- lips, who was part of an advisory council at Trinity Western before he was appointed the law school's executive director in September 2014. "This is built more along the line of a biblical covenant. We believe that you cannot separate statements of belief with how you live your life. This is based on your call as a Christian," says Phillips. He also stresses that the cov- enant requires individuals to be respectful of others. Phillips, who practised labour and employment law at McCarthy Tétrault LLP and is a former regional man- aging partner of the firm, says he understands some of the criticism. "There is a concern that this looks like a step back. Lesbian and gay communities have suffered hugely from discrimination. It took a long time to acquire rights they were entitled to receive," he states. At the same time, though, Phillips does not believe that the 60 spots that Trinity Western is planning for its first-year class (with a projected total enrolment of 170 people) would have any substantive impact on a gay or lesbian person seeking to attend a law school in Canada — while at the Trinity Western v. B.C. College of Teachers From the moment that Trinity Western University submitted its law school proposal in June 2012 to the Federation of Law Societies, a past decision by the Supreme Court of Canada has loomed large in the debate over whether regulators can refuse to accredit the program. Supporters of the Christian university argued that the issue was already settled law. Many legal opin- ions and court decisions later, this part of the debate remains unsettled. The past ruling was an 8-1 deci- sion in 2001 by the Supreme Court in Trinity Western University v. Brit- ish Columbia College of Teachers. The college declined to accredit the teacher's program at the univer- sity because its code of community standards was discriminatory. The code, similar to the current covenant at the school, required students to agree to refrain from practices that are "biblically condemned," such as homosexual behaviour. The majority judgment, writ- ten by Justices Frank Iacobucci and Michel Bastarache, quashed the college's decision. It found that the admissions policy of the private university did not engage the equal- ity provisions of the Charter and the college's decision infringed the freedom of religion and association rights of the university, its staff and students. Justice Claire L'Heureux-Dubé was the lone judge in dissent and stated bluntly that she believed her colleagues misunderstood the cen- tral issues. "The code is not a proxy for belief: TWU students' beliefs are not the issue here. Indeed, it is impossible to know what individual students believe, since, as recognized in the code, ultimately convictions are a personal matter. Signing the community standards contract by contrast, makes the student or employee complicit in an overt, but not illegal, act of discrimination against homosexuals," she wrote. Once the Federation received the law school proposal from Trin- ity Western, it commissioned a legal opinion from John Laskin, a senior lawyer and partner at Torys LLP in Toronto. Laskin concluded that if "discriminatory practices" was cited as the reason for not approving the law school, the Federation could be susceptible to a court challenge based on the earlier Supreme Court decision. Mahmud Jamal, a partner at Osler LLP in Toronto, expressed similar views in a 2014 legal opin- ion for the Law Society in Ontario. The Supreme Court's analysis when weighing competing Charter rights "remains unchanged," he wrote. In B.C., the law society sought legal opinions from Geoffrey Gomery, a partner at Nathanson, Schachter and Thompson LLP in Vancouver. Gomery also concluded that the original Trinity Western ruling was still "good law" for the question before the regulator. All three lawyers disagreed with the analysis of Elaine Craig, a pro- fessor at Dalhousie Law School in Halifax, who was invited to make a written submission to the Fed- eration. She argued that the earlier decision could be distinguished and it was not in the public interest to accredit an institution with poli- cies that are inconsistent with core professional values and fundamental legal principles. Meanwhile, in the subsequent litigation over the proposed law school, three provincial Courts of Appeal have all approached this issue differently. In Nova Scotia, the Charter ques- tions were not addressed and the court ruled against the barristers' society on procedural grounds. The B.C. Court of Appeal stated that the 2001 Supreme Court ruling was not dispositive. At the same time, the analysis from it provided "signifi- cant guidance" on what was before the court. The Ontario Court of Appeal reached a different conclusion in its analysis and expressly adopted the reasoning of the Divisional Court in distinguishing the earlier ruling. "The issue before the Supreme Court of Canada in BCCT involved different facts, a different statutory regime and a fundamentally different question," wrote Justices Edward Then, Frank Marrocco and Ian Nordheimer. The Court of Appeal, in its deci- sion, also cited with approval some of the analysis by Professor Craig on deference to freedom of religion when an institution and its members seek to exercise their beliefs to dis- criminate against others. -Shannon Kari WE BELIEVE THAT YOU CANNOT SEPARATE STATEMENTS OF BELIEF WITH HOW YOU LIVE YOUR LIFE. THIS IS BASED ON YOUR CALL AS A CHRISTIAN. Earl Phillips, executive director for the TWU School of Law

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