There is a vigorous, difficult debate seizing Canada's law societies today, one that is wrapped up in the quest to do right by this country's fervently held view of itself as a tolerant, pluralistic nation that has enshrined respect for the rights and freedoms of a diverse population. But when it comes to law, rights inevitably compete; there will be winners and losers.
British Columbia-based Trinity Western University's request for approval of its proposed law school pits its right to impose its evangelical beliefs on students' behaviour against the right of lesbian, gay and transgendered individuals to be free from discrimination.
To be admitted, students must agree to TWU's community covenant requiring them to abstain from sexual intimacy outside of marriage, described as reserved for one man and one woman. The code of conduct prohibits single students from engaging in sexually intimate behaviour and effectively bars married homosexuals from admission.
As accreditation bodies reviewing the school's application have noted, the covenant makes for an unwelcoming environment for lesbians and gays. Further, it requires students, faculty and administrators to hold each other accountable, read: Turn in offenders. TWU holds the right to take action when the covenant is breached.
Trinity Western has been in this kettle before. In 2001, the British Columbia College of Teachers refused to accredit the Langley, B.C., school as a full-fledged, degree-granting body. The Supreme Court of Canada made the BCCT back down, ruling the covenant -- which at the time called homosexuality a sin -- might discourage homosexuals from attending but would not prevent them from becoming teachers. In other words, no great harm, or at least not enough to overrule Trinity Western's admissions policy.
And now provincial law societies are in the mix because each, in its power to accredit schools, has authority to decide whether law graduates can be admitted to their own bars to practise law. TWU has already gained approval in B.C. and Saskatchewan, which have voted to fall in step with the provisional approval granted by the Federation of Canadian Law Societies. Ontario has rejected Trinity Western's request, saying it could not be party to the discrimination. Nova Scotia has said it would accredit if TWU makes ascribing to the covenant voluntary.
Manitoba's benchers are to meet in mid-May to decide what to do. Like Saskatchewan, the Manitoba Law Society currently follows the national federation's decisions on accreditation, but it is unsure now if it should expand the criteria for approval from considering simply the standards of education students receive to include admission policies.
In practical terms, the votes on TWU by provincial societies is largely symbolic; mobility rights and rules of internal trade in Canada mean once a law graduate passes the bar in one province -- as TWU students might eventually do in B.C. -- he or she can practise in any province.
But the symbolism is powerful: The law societies are held to act in the public interest and to respect values such as those enshrined in the Charter of Rights and Freedoms.
All votes to date have been close, argued in depth and with passion, weighing current law on marriage and evolving jurisprudence on the balance of charter rights. Both sides mustered convincing arguments. A pluralistic society that values diversity must resist temptation to clip the full, legitimate expression of those differences.
Further, the debates by the benchers are well-informed by the sordid history of law societies in Canada that supported discriminatory admissions policies in the past.
Trinity Western has said it intends to challenge the decisions of the Nova Scotia and Ontario benchers. The Supreme Court might eventually rule on the legal strength of the law societies' decisions. But the Law Society of Manitoba cannot anticipate the court's decision.
It should tell Trinity Western, as did Nova Scotia, to make its covenant voluntary, that a law school that constructs admission policies that discriminate against an identifiable group in society will not get its stamp of approval.