Introduction

The Law Society of British Columbia recently released its transcript of the Benchers’ Meeting, on April 11, 2014, that resulted in the accreditation of the Trinity Western University. I implore everyone to take the time to read the words of the benchers who struggled with this TWU decision. Here is the full transcript.

Joseph Arvay Submissions

The most compelling, logical and heart-felt statements were made Joe Arvey, QC (emphasis added by myself):

Madam President, fellow Benchers, I speak to support the resolution not to approve the TWU law faculty. In my opinion, it is not in the public interest for the Law Society to approve this law school and I say that this is the ultimate issue that is before us, and not simply whether its students will be academically qualified to be lawyers. This is the view of Chief Justice Finch, and to the extent that others say otherwise, I respectfully disagree. My main objection to this law school is what I see as discriminatory conduct by the administration of the law school. I object to what I say is the metaphorical sign at the gate of the law school which says, “No LGBT students, faculty or staff are welcome.” It is this act or conduct of the administration of TWU that is discriminatory and per se harmful and it is the reason that the Law Society, which is charged with respecting the rights and freedoms of all persons in British Columbia, must refuse to approve this law school.

The Federation’s Special Advisory Report, which also by the way considered it appropriate to consider the wider public interest and not only the academic program, acknowledged that the community covenant would make the law school an unwelcome place for LGBT students and faculty even if it was not a complete ban. That committee concluded that the community covenant would likely discourage most from applying to a law school at the university. In my view, a sign that says “LGBT are not welcome” is as bad as a sign that says “you cannot apply.” The Federation, in considering whether the proposed law school should be approved, adopted the distinction that has been relied on in the United States law schools between the status of being gay, lesbian or transgendered and the conduct of such a person. The Federation says that it is impermissible to have a rule that denies or discourages entry based on status, but it is okay if it is about conduct. This was a surprising and disturbing distinction to have drawn. It is simply a euphemistic way of embracing the aphorism that we love the sinner but hate the sin, and it is indeed the very proposition that is at the core of TWU’s community covenant and why I say it should not be approved as a law school.

What is even more surprising about the Federation’s Special Advisory Report is that, while it acknowledged the most recent decision of the Supreme Court of Canada on the topic, being the Whatcott decision, it failed to point out that the Supreme Court of Canada not only unanimously and soundly rejected the sin/sinner distinction, but it did so by adopting the dissenting opinion of Madam Justice L’Heureux-Dubé in the Trinity Western case. […] In light of the Supreme Court of Canada’s adoption of Justice L’Heureux-Dubé’s dissent, one must now question whether the Supreme Court of Canada would decide that case the same today that it did 13 years ago. In my view, it would not.

But even if it might, in my view the focus of that case was very different than what ought to be the focus of the matter before us. As the Supreme Court of Canada said most recently in the Bedford case, even lower courts can refuse to follow a decision of the Supreme Court of Canada if there has been “change in the circumstances that fundamentally shifts the parameters of the debate.” And this debate has not only been unprecedented, but has fundamentally shifted from what was before the Supreme Court of Canada. The focus of the Supreme Court of Canada was the view of the College that graduates from a teachers college at TWU would discriminate against their future students. […]

There was but passing reference in the Supreme Court of Canada to what I say is now the real issue before us, and that is what I call the sign at the gate. All the Supreme Court of Canada said about that was that the admissions policy of TWU alone is not in itself sufficient to establish discrimination as it is understood in our section 15 jurisprudence and that, as a private institution, it is exempt from the BC Human Rights Act. In my view, the evolving jurisprudence of the Supreme Court of Canada section 15 […] would now condemn this admission policy were it enacted by a governing body and it would uphold the decision of this Law Society as a body subject to the Charter which refused to sanction such a discriminatory policy. That admission and hiring policy perpetuate prejudice against LGBT students and faculty and it is irrelevant that this may not be the motive or purpose of the community covenant; all that matters is that it has this effect or impact. Nor, in my opinion, could TWU take any refuge in the exemption allowed to religious organizations under the BC Human Rights Code.

The problem with TWU seeking to rely on this exemption is that it does not seek to give preference to persons of the same religious belief, since it says anyone regardless of their religious belief can attend. Instead of using belief as the criteria of admission, TWU uses a code of conduct and there is nothing in the Human Rights Act that allows discrimination based on such conduct. Once we understand that there cannot be a distinction between the status of being gay and the conduct that defines your sexual orientation, then what TWU is doing  is discriminating based on sexual orientation and not religious belief. They are not permitted, under the Human Rights Code, to give a preference to heterosexuals since even they would concede that being a homosexual is not inconsistent with their religious belief. Hence, in my opinion, the community covenant would be a breach of the Human Rights Code. […]

The Federation referred to the decision of […] Whatcott as somehow justifying its decision when it said that it was simply trying to balance freedom of religion and equality. What I fail to understand is how approving this law school in any way balances the rights of religious freedom and the rights of equality. I take no issue with there being a religious law school. I would take no issue with that law school having as one of its core beliefs that same-sex marriage and sexual intimacy that this entails being a sin. What I take issue with is that belief being imposed on those who do not share that belief. No one is asking any of their religious students or faculty to abandon their beliefs. How is it even possible to say that if we refuse to give our imprimatur, the state’s imprimatur, to this law school that we interfere with any of those religious beliefs or for that matter religious practises? But TWU in requiring LGBT students and faculty as an effective condition of entry to the law school to hide their sexual orientation and to re-enter the closet that they have been told by the Supreme Court of Canada they no longer need to hide in.

The decision of the Federation is not in any way balanced, it is horribly skewed in favour of religion without any regard to equality. Balance would have said that the law school can be approved, but only if it removed the requirement that those seeking admission or hiring must adhere to the community covenant which prevents them from, not only being true to their own selves, but actually prevents them from being married by the State, a right that was hard fought and hard won and came into existence only after the TWU decision.

I am always reluctant to invoke the race card when arguing the equality race, but I am afraid there is no way to avoid asking that question as to what this Law Society would do  if the community covenant related to interracial marriage, even if that precept was based on religion as it was in the case of the Bob Jones University. I have no doubt what your decision would be. It should be no different when the issue is same-sex marriage. This is a momentous moment for the Law Society. I urge you to resolutely support this resolution and be confident that you will be on the right side of history when the courts uphold your decision. Thank you.”

Few people in my life have put together statements so succinct, so poignant, and so powerful. Truer words have never been spoken.

Anonymous Lawyer

Edit: My apologies to J. Arvay – I previously had this bencher’s name as “Arvey”. The full name of this bencher is Joseph Arvay, QC

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Comments
  1. Bob says:

    BC Lawyer, very powerful, but doesn’t it bother you that Arvay misrepresents the SCC’s decision in Whatcott? The Court did NOT embrace L’Hereux Dube’s dissent, rather it embraced her summary of the law on a point on which she agreed with the majority. From Whatcott:

    “L’Heureux-Dubé J. in Trinity Western University v. British Columbia College of Teachers, 2001 SCC 31, [2001] 1 S.C.R. 772, in dissent (THOUGH NOT ON THIS POINT), emphasized this linkage…” [emphasis added}.

    I’m not sure how someone can read that sentence and conclude, in good faith, that the SCC embraced L’Heureux-Dube’s dissent. In TWU, the majority of the SCC clearly accepted that the TWU covenant was discriminatory – no one seriously suggests otherwise – but observed that it was discrimination that was LEGAL under the BC Human Rights Code (and, I note, would be legal under the Ontario Human Rights Code) – since TWU is a private institution it is not subject to the Charter. Moreover, while the majority of the court recognized that it engaged the section 15 protection afforded to homosexuals under the Charter (which, as a public body, the BCCT had to consider), they also noted that those values had to be balanced with the sections 2(a) and 15 rights also afforded to religion under the Charter and concluded that it was improper for the BCCT of teachers in fail to balance the religious freedoms of TWU graduates against those rights.

    In short, in Whatcott, the SCC endorsed the Court’s decision in TWU on a discrete (and uncontroversial) point, it certainly didn’t embrace the dissenting view or reject the Majority’s decision (and the fact that it cited TWU suggests that it still things that decision is good law). .It’s distressing that otherwise good lawyers are making such clearly ridiculous arguments to support an untenable position.

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    • You are entitled to your interpretation of the case law and statutes. Each lawyer should read these cases and make a determination for themselves as to what is the right thing to do. I think the Barristers’ and Solicitors’ Oath demands that I take a stand to uphold the rights of all people, including the LGTBQ community http://t.co/7nkFuqBfnj

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