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The Law Society of Upper Canada Is Attacking Charter Freedoms

08/05/2015 08:28 EDT | Updated 08/05/2016 05:59 EDT
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Regarding the recent Ontario Superior Court of Justice ruling in Trinity Western University v. Law Society of Upper Canada, Out On Bay Street lawyer Paul Saguil and articling student Douglas Judson argued (July 8, 2015) that any defence of Trinity Western University relies on hypocrisy.

The Federation of Law Societies of Canada (FLSC) has already approved the law program of Trinity Western University (TWU) as meeting academic and professional standards. The Law Society of Upper Canada (LSUC) admits there is nothing wrong with TWU's law program; its graduates will be fully competent to practice law. The LSUC also admits that there is no evidence that Christian, Muslim, Jewish and other religious lawyers treat LGBTQ people poorly.

Yet the LSUC -- now with the Court's approval -- won't recognize TWU's law degree solely because the person who earned that degree decided, while studying law, to join others in a religious community where people share a personal commitment to traditional marriage.

Messrs. Judson and Saguil correctly point to "the public interest obligations of law societies to promote equal access to the profession," and add that law societies should not meddle with university policies or religious doctrines, regardless of how unpopular they may be.

The LSUC upholds the public interest by not requiring Ontario's lawyers to espouse "correct" views on sex and marriage. Lawyers have the freedom to advocate for, and practice, their moral beliefs about sexuality. This reflects a basic respect for fundamental Charter freedoms. So why should it be any different for those seeking to enter the legal profession?

Is it contrary to the public interest that some law students make a commitment to follow a Christian moral code (including a commitment to abstain from sex outside of traditional marriage) while studying law? Of course not. And if these same individuals live together in a religious community while completing their law degree, how is that contrary to the public interest?

Judson and Saguil argue incorrectly that law schools are gatekeepers to the legal profession. In fact, the Law Societies in each province are the gatekeepers to the legal profession, not TWU. The LSUC is the party which engages in discrimination here, primarily against Christians but also against non-Christians who are welcome to attend TWU and who choose to do so.

If TWU was the only university in Canada with a law school, then the LSUC would have legitimate concerns about LGBTQ people having access to the legal profession. But TWU merely proposes to create an additional law school, one that would not interest the vast majority of students, for many different reasons. TWU would open an additional 60 spaces for law students. This does not close any doors on anyone. By way of analogy, if Muslims, Jews, or gays were to start a new law school, this would not diminish access to the legal profession on the part of non-Muslims, non-Jews, or non-gays.

Reading the column of Judson and Saguil, one would think that same-sex couples are actually interested in attending a university which publicly proclaims its adherence to traditional Evangelical Christian beliefs about marriage and sex. The beauty of a free society is authentic diversity: Canadians have created literally tens of thousands of different charitable, cultural, ethnic, and political groups. None of these voluntary associations are welcoming towards those who disagree with the association's beliefs, goals or practices. Nobody is required to join a private institution. Forcing majority beliefs on voluntary groups destroys the unique characteristics of each one, and attacks the authentic diversity which is the hallmark of a free society like Canada. Every voluntary association espouses views, and creates its own rules, that not everyone agrees with. This does not violate anyone's rights or freedoms.

Judson and Saguil assert that the public interest requires forcing private, voluntary associations (in this case TWU) to change their policies and practices to conform to majority opinion (in this case, opinions about sex and marriage), as a prerequisite for providing professional training programs. This is the antithesis of a free society, which tolerates a broad range of opinions -- and associations -- on a broad range of issues. Why should a person have to agree with Out On Bay Street about LGBTQ issues in order to become a teacher, nurse, lawyer, or other professional?

The LSUC has launched a direct and aggressive assault on the Charter's fundamental freedoms of association, religion, and expression. To what end? To force a religious community to change its very nature, goals and mission, in order to please the majority of Canadians. The LSUC's reasoning assumes a legal right to force changes on private associations that one disagrees with. This is incompatible with a free society that allows Canadians to form -- and join -- the charitable, ethnic, recreational, political, and cultural associations of their own choosing, free from state coercion.

In a free country, one should not be compelled, on pain of being excluded from a profession, to agree with the beliefs about sex and marriage that are held by Out On Bay Street, or by anyone else. The Supreme Court of Canada decisively rejected ideological conformity for professional accreditation in Trinity Western University v. BC College of Teachers. The same principle should apply to lawyers, nurses, doctors, pharmacists, accountants, and everyone else.

The LSUC could embrace diversity in legal education by recognizing TWU's law school, thereby improving public confidence in the openness of the legal profession. Instead, the LSUC seeks conformity in legal education, and discriminates against those who would engage in a religious lifestyle of which Out On Bay Street disapproves.

TWU does not impose its beliefs on anyone. The LSUC, a government body and the gatekeeper to the legal profession, is imposing the beliefs of Out On Bay Street (and others) on TWU, and on those who would wish to study law there.

Calgary lawyer John Carpay is president of the Justice Centre for Constitutional Freedoms (www.jccf.ca), which intervened in support of freedom of association in Trinity Western University v. Law Society of Upper Canada.

Correction: A previous version of this blog misidentified Douglas Judson as a lawyer when he is actually an articling student.

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