Bars to the Bar: Diversity in the Legal Profession Before the Canadian Supreme Court – Michael Rhimes

21 June 2018 by Guest Contributor

On 15^th June 2018 the Canadian Supreme Court handed down two interesting and closely related judgments involving Trinity Western University: Law Society of British Columbia v Trinity Western University and Brayden Volkenant 2018 SCC 32 and Trinity Western University and Brayden Volkenant v Law Society of Upper Canada 2018 SCC 32

Trinity Western University (TWU) is a Christian University – indeed, in its own words, it is “a distinctly Christian university” (here, page 2). It takes “the Bible as the divinely inspired, authoritative guide for personal and community life” (here, page 1) and seeks“to develop godly Christian leaders”.

Prospective TWU students must sign a ‘Community Covenant’. That Covenant requires them to commit to “reserve sexual expressions of intimacy for marriage” and abstain from“sexual intimacy that violates the sacredness of marriage between a man and a woman” (here, page 3). This rule applies both on and off campus(the Abstinence Rule, see paras [1] and [319]).

The Law Society of British Columbia (LSBC) refused to approve TWU’s faculty of Law because of the Abstinence Rule (I will call this the Decision). The question before the Supreme Court of Canada was whether this was lawful. The issue in Law Society of Upper Canada dealt with a similar decision of the Law Society of another province(Ontario)to approve the TWU law school.  

The majority (7 to 2) held that the decision was lawful. I leave to the side the interpretation of the statute underpinning the LSBC and constitutional issues particular to the Canadian legal system and focus more specifically on the “balancing” of the fundamental rights at stake in this case.

Majority reasoning and two concurring opinions 

The majority reasoning, consisting of Justices Abella, Moldaver, Karakatsanis, Wagner and Gascon,first concluded that TWU’s right to religious freedom under the  Canadian Charter of Rights and Freedoms was engaged. Evangelical Christians believe that they should carry their beliefs into educational communities [65]. TWU sought to foster spiritual growth by insisting on a Christian code of conduct,the Covenant, in TWU [69], [71].

However, the majority found that the interference with the right to religious freedom was minor. The Abstinence Rule is not “absolutely required” to ensure the provision of legal education in a spiritually appropriate environment for evangelical Christians [87]. So much was supported by evidence to the effect that the Covenant enhanced previous students’experiences but was not a necessary precondition of their attendance [88]. This was not a situation of “forced apostasy” where a requirement was imposed in direct contradiction to a tenet of their faith (contrast with the requirement to have a photo taken for a driving license, contrary to the Hutterian belief that the taking of such likeness violates the Second Commandment Hutterian Brethren) [90]

In addition, the restriction in the Decision furthered the objectives of LSBC by “maintaining equal access to and diversity in the legal profession”. The 60 law schools seats proposed by TWU would be effectively barred to LGBTQ students, who could only take up a place at TWU at considerable personal cost – foregoing any sexual relations (outside a heterosexual marriage) during their time at TWU [93]. The fact those students could apply elsewhere was not germane; the point of substantive equality is the elimination of discriminatory barriers, not the mere availability of alternative options [95].

Two justices agreed with the majority in concurring opinions.

Justice Rowe went further and concluded that the right to religious freedom was not engaged, (i.e. at issue)in the present case.Heheld, assuming that a sincere belief had been demonstrated, that the Abstinence Rule sought to impose the religious beliefs of evangelical Christians on non-believers. However, the coercion of others into religious beliefs is not protected by the Charter [242].

Chief Justice McLachlin goes less far and concluded (like the majority)that the right to religious freedom is engaged but (unlike the majority)  that the infringement of that religious freedom was not minor) but substantial. She stressed that the right in issue was not simply the right to study in a religious environment, but to study in a religious environment where all members of the community adhere to common ethical standards [130]. In effect, there was an acute denial of the right to express religious beliefs in an institutional form [134].

She nevertheless agreed with the majority that the effect of the Abstinence Rule puts LGBTQ persons to a choice, namely to either “attend TWU or enjoy equal treatment” [138]. The LSBC, operating under a “unique statutory mandate” [150] could not, at the same time, give its blessing to the TWU law school by approving it and combat discrimination against LGBTQ persons, as it was required. It was therefore not unreasonable for it to refuse the approval of TWU.

Minority reasoning

A minority of two, Justices Côté and Brown,held that the decision was unlawful. Their reasoning shows three principal differences from that of the majority.

As a preliminary point, I note that the minority held that the LSBC’s Decision was ultra vires the statute governing the LSBC [281] [285]. The focus should have been solely on whether TWU graduates met the ethical and competency requirements to practice at the Barand not on broader questions of LGBTQ representation in law schools [267], [273].

The first point of difference is that the minority stressed that the LSBC is a state body. Given that the LSBC made it clear that they were prepared to approve the law school if it dropped the Abstinence Rule, the LSBC, as a state body, was forcing TWU to manifest their Christian Evangelism in a certain way, in contradiction of the principle of state neutrality [324]. It was not TWU’s duty, as a private body against whom the Charter does not apply, to facilitate greater diversity at the Bar.

The second point of difference is that  the minority held that it was misguided to place emphasis on LGBTQ diversity at the Bar given that the decision entailed a concomitant restriction on evangelical Christians’ access to the Bar [269]. The inequality stemming from the Abstinence Rule (LGBTQ persons being less likely to apply to TWU as a result of the Rule) promoted the religious freedom of evangelical Christians to associate in educational environments conducive to their spiritual beliefs. This contributes to a more pluralistic society [328]. Tolerance involves “allowing for difference” (i.e. evangelical Christians and their communal modes of association), not a “forced choice between conformity with a single majoritarian norm and withdrawal from the public square” [332] [333].

Finally, the minority took a more sanguine view of the effect of the Abstinence Rule. It affected heterosexual non-married couples as well; was not directed against LGBTQ persons; and sought to ensure the vitality of the TWU community [335]. More broadly, LSBC’s approval of TWU would not amount to condoning TWU’s viewson sexual morality. The LSBC role is to govern the legal profession and the accreditation of a particular law school; thisdoes not mean LSBC endorses that law school’s views[338].

Conclusion

It is not the purpose of this summary to take a position on the complex balancing issues that were explored in the TWU judgments. But in the current climate of seeking greater representation of minorities at the Bar, the following passage from Law Society of Upper Canada, the “sister” case to Law Society of British Columbia handed down on the same day, is particularly telling(emphasis in the original):

[20]… the [Law Society of Upper Canada] was entitled to conclude that equal access to the legal profession, diversity within the bar, and preventing harm to LGBTQ law students were all within the scope of its duty to uphold the public interest in the accreditation context, which necessarily includes upholding a positive public perception of the legal profession.

[…]

[23]The [Law Society of Upper Canada] was also entitled to interpret the public interest as being furthered by promoting a diverse bar. Access to justice is facilitated where clients seeking legal services are able to access a legal profession that is reflective of a diverse population and responsive to its diverse needs. Accordingly, ensuring a diverse legal profession, which is facilitated when there are no inequitable barriers to those seeking to access legal education, furthers access to justice and promotes the public interest.

This is a ringing endorsement of the value of LGBTQ diversity at the Bar, and one which merits careful reflection. Considerable progress has been achieved in the promotion, and visibility, of gay persons at the Bar and Bench. In that regard, I note that the Master of the Rolls of the United Kingdom, Sir Terence Etherton, is openly gay. There are other senior judges in other jurisdictions who are also openly gay, such as Justice Edwin Cameron of the Constitutional Court of South Africa, who publicly announced in 1997 that he was HIV positive. There are 11 openly gay State Supreme Court justices who currently serve in the United States of America, 8 of whom are women.

This acceptance is to be welcomed, but not taken for granted.To put it in context, it has been nearly 60 years since the film Victim was released in 1961, when homosexual acts were still criminalized. It tells the story of a barrister, Melville Farr, on the cusp of taking silk. Although married, he has a clandestine relationship with a man. While the film makes a clear plea for the decriminalization of homosexual acts, it effectively accepted the diametrical opposition between a life at the Bar, and life as an openly gay man.

Nowadays, we are fortunate that “FARR IS QUEER“, the slogan scrawled on Farr’s garage, would no longer be an epitaph for a career at the Bar. This is due to decisions of people like Sir Terence Etherton and Justice Edwin Cameron to come out, publicly, as gay. It is also due to broader social shifts, which the majority in the Canadian Supreme Court tellingly highlighted in the TWU cases.

Michael Rhimes is the fourth référendaire to Judge Christopher Vajda at the Court of Justice of the European Union. The opinions expressed in this piece are strictly personal. While the author has attempted to summarise salient features of this case, he does not have a background in Canadian law. The author wishes to thank Azeem Ahmed for drawing this case to his attention and William Moody for his comments.