Amidst a flurry of controversy, the Federation of Law Societies of Canada (FLSC) granted preliminary approval for a proposed common law program at Trinity Western University (TWU) on December 16, 2013. TWU is a Christian-based private university that mandates all students sign a “Community Covenant” in which they voluntarily abstain from a variety of acts including “sexual intimacy that violates the sacredness of marriage between a man and a woman.”
Critics of TWU argue that this covenant discriminates against LGBT students, and a TWU law school would deny LGBT students equal access to law school.
The FLSC explained its decision to approve the school by noting that its mandate is limited to determining if a proposed law school “would produce graduates competent for admission to law society bar admission programs.”
In a letter to Canada’s law societies, the president of the FLSC also stated that the debate about the form or content of a university code of conduct such as the TWU Community Covenant was one the FLSC felt was more appropriately dealt with by government legislators who oversee educational institutions as a whole.
Despite its narrow mandate, the FLSC did opt to initiate a Special Advisory Committee to determine if there was any public interest reason related to the Community Covenant that would serve as a reason to deny TWU’s application. In its final report, the Special Advisory Committee came to the conclusion that there were no public interest reasons to bar TWU’s application.
In coming to its conclusion, the Committee relied heavily on the Supreme Court’s decision in BC College of Teachers v. Trinity Western University, where the Court held that the BC College of Teachers erred in its decision to deny TWU a teacher’s college on the basis of discrimination. The Committee found that there was no evidence of any harm that would lead them to a conclusion different from that of the Supreme Court’s. The Committee did state that if evidence of harm emerged following TWU’s approval, it would be addressed at that time.
The Committee also found that it was reasonable to conclude that the Community Covenant would make TWU an “unwelcoming” place for LGBT individuals and would “likely discourage” them from applying to TWU’s law school. However, this did not result in any fewer choices for LGBT students than they have currently. The Committee’s reasoning was that there was no evidence that TWU banned the admission of LGBT individuals, and that TWU would be an attractive option for some law students, whatever their sexual orientation.
The Committee did recommend that the FLSC consider adding a non-discrimination provision to its national requirement, similar to that required of American law schools. ABA-approved schools are not permitted to discriminate based on sexual orientation, but private religious schools are free to create codes that prohibit certain conduct. The Committee did note that a Canadian clause that mirrors ABA guidelines would still not bar approval of TWU’s law school, because TWU prohibits conduct, not status.
After gaining FLSC approval, TWU cleared its final hurdle to approval two days later, when the BC Ministry of Advanced Education approved TWU’s application. Minister Amrik Virk stated that the program met quality assessment criteria and national standards for practicing law.
In response, efforts are underway to start a legal challenge to the BC and FLSC’s decisions. As of the time of publication, $4,861 has been raised in a crowdsourcing campaign started by JD student Marcus McCann and the law firm Ruby Shiller Chan Hasan to fund this challenge. TWU anticipates that it will open its doors to its first class of 60 students in the Fall of 2016.
