Federation of Chinese Canadian Professionals (Ontario) 加 拿 大 華 人 專 業 人 員 聯 會, 安 大 略 省. Association of Chinese Canadian Lawyers of Ontario

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1 Federation of Chinese Canadian Professionals (Ontario) 加 拿 大 華 人 專 業 人 員 聯 會, 安 大 略 省 Association of Chinese Canadian Lawyers of Ontario March 20, 2014 VIA Jim Varro, Director of Policy TWU Submissions Policy Secretariat Law Society of Upper Canada Osgoode Hall 130 Queen St. W. Toronto, ON M5H 2N6 Dear Mr. Varro: Re: Trinity Western University Request for Accreditation We write to you as the Board members of the Association of Chinese Canadian Lawyers of Ontario ( ACCLO ). The ACCLO is a non-profit organization that focuses on fostering the professional development of Chinese Canadian lawyers; advocating for equality, justice and fairness for Chinese Canadians in legal matters; and facilitating Chinese Canadians access to the Canadian legal system. The ACCLO was formed in 1975 and is the legal section of the Federation of Chinese Canadian Professionals (Ontario). The ACCLO is opposed to discrimination of any kind including discrimination on the basis of ethnic origin and discrimination on the basis of sexual orientation. For this reason (which we develop further below), we ask the Law Society of Upper Canada ( LSUC ) to refuse accreditation to the law school proposed by Trinity Western University ( TWU ) pursuant to section 7 of By-Law 4. As the Treasurer has acknowledged, the LSUC s decision must be made in the public interest, which is part of the LSUC s mandate. 1 Specifically, s. 4.2 of the Law Society Act, R.S.O. 1990, c. L.8 provides: 1 Treasurer s remarks respecting TWU for February Convocation (in public), available online: < slsuc.on.ca/uploadedfiles/treasurer-twu-remarks.pdf>. 1

2 In carrying out its functions, duties and powers under this Act, the Society shall have regard to the following principles: 1. The Society has a duty to maintain and advance the cause of justice and the rule of law. 3. The Society has a duty to protect the public interest. The cause of justice, rule of law and public interest are enhanced when the values of the Canadian Charter of Rights and Freedoms ( Charter ) are respected. Thus, the LSUC s decision on TWU should be guided by the Charter. 2 TWU s proposed law school would offend the Charter value of equality because it would institutionalize a policy of discrimination against queer students. TWU requires, as a condition of admission, that all students sign a covenant in which they voluntarily abstain from sexual intimacy that violates the sacredness of marriage between a man and a woman. A breach of this covenant can result in expulsion from the university. 3 This covenant tells prospective students that if they are queer, they can only attend TWU if they deny their sexual identity or lie about their sexual behaviour at the risk of expulsion if they get caught. This is no more acceptable than a covenant that excluded students of Chinese descent. Both ethnic origin and sexual orientation are prohibited grounds of discrimination under s. 15(1) of the Charter. TWU has attempted to distinguish its covenant from recognized forms of discrimination by characterizing it as being aimed solely at homosexual behaviour and not homosexual persons. While this approach once held some currency, it has since been discredited. In Saskatchewan (Human Rights Commission) v. Whatcott (2013), the Supreme Court of Canada adopted the following passage from Justice L Heureux-Dubé s dissent in Trinity Western University v. British Columbia College of Teachers (2001): I am dismayed that at various points in the history of this case, the argument has been made that one can separate condemnation of the sexual sin of homosexual behaviour from intolerance of those with homosexual or bisexual orientations The status/conduct or identity/practice distinction for homosexuals and bisexuals should be soundly rejected. 4 2 In Doré v. Barreau du Quebec, [2012] S.C.J. No. 12 at paras. 24, 28, 35, the Supreme Court of Canada made it clear that all administrative decision-makers including law societies must consider Charter values in the exercise of their discretion. 3 Trinity Western University, Student Handbook (nd) at 23, available online: < handbook/student-handbook pdf>. 4 Saskatchewan (Human Rights Commission) v. Whatcott, [2013] S.C.J. No. 11 at para

3 TWU also asserts that its covenant is protected by freedom of religion under s. 2(a) of the Charter. This claim, however, does not stand up to scrutiny. At the core of TWU s claim is the notion that freedom of religion includes not only the right to manifest religious belief by worship and practice or by teaching and dissemination 5 (which we do not object to TWU doing), but also the right to insulate oneself from those who do not share one s religious beliefs or practices by excluding such persons even when engaged in a public activity such as operating an accredited law school. Freedom of religion does not go this far. The Supreme Court of Canada made that clear in S.L. v. Commission scolaire des Chênes, which rejected a freedom of religion claim by parents who wanted to exempt their children from a class called Ethics and Religious Culture. 6 Writing for the majority, Deschamps J. held: The suggestion that exposing children to a variety of religious facts in itself infringes their religious freedom or that of their parents amounts to a rejection of the multicultural reality of Canadian society. 7 TWU also cannot derive any assistance from s. 18 of the Ontario Human Rights Code, which exempts certain religious institutions from the anti-discrimination conditions that would otherwise apply. Section 18 provides: The rights under Part I to equal treatment with respect to services and facilities, with or without accommodation, are not infringed where membership or participation in a religious, philanthropic, educational, fraternal or social institution or organization that is primarily engaged in serving the interests of persons identified by a prohibited ground of discrimination is restricted to persons who are similarly identified. (emphasis added) 8 TWU cannot take advantage of this provision to restrict membership to students who believe in the brand of Christianity that says homosexuality is sinful because it is not primarily engaged in serving the interests of only these students. This is clear from s. 3(2) of TWU s own statute, which states: The objects of the University shall be to provide for young people of any race, colour or creed university education in the arts and sciences with an underlying philosophy and viewpoint that is Christian. 9 (emphasis added) In other words, even TWU s own governing statute recognizes the difference between teaching one s underlying philosophy and [religious] viewpoint which we do not object to TWU doing and discriminating against students of other creeds (e.g., those who do not subscribe to TWU s religious views) by excluding them. Finally, it is important to say a word about the Supreme Court of Canada s 2001 decision in Trinity Western University v. British Columbia College of Teachers, 10 since the Federation of Law Societies of Canada relied on this case to grant conditional approval. Two observations are in order. 5 R. v. Big M Drug Mart, [1985] S.C.J. No. 17 at para [2012] S.C.J. No Ibid., at para Human Rights Code, R.S.O. 1990, c. H.19, s Trinity Western University Act, S.B.C. 1969, c. 44, s. 3(2). 10 [2001] S.C.J. No

4 First, thirteen years have passed since that decision was rendered and societal views on homosexuality have continued to evolve. At the time British Columbia College of Teachers was decided, gays and lesbians were not even permitted to marry. It was not until two years later that the Ontario Court of Appeal held that a legal definition of marriage that excluded same-sex couples violated s. 15(1) of the Charter. 11 Moreover, in British Columbia College of Teachers, the Supreme Court heard but did not fully embrace the argument that there is no distinction between homosexual persons and homosexual behaviour and that practices and identity are related. 12 It was only Justice L Heureux- Dubé in dissent who stated that (t)he status/conduct or identity/practice distinction for homosexuals and bisexuals should be soundly rejected. 13 In 2013, however, a unanimous Supreme Court adopted Justice L Heureux-Dubé s statement in Saskatchewan (Human Rights Commission) v. Whatcott. 14 The Supreme Court recently recognized in Canada (Attorney General) v. Bedford that its precedents may be revisited if new legal issues are raised as a consequence of significant developments in the law or if there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate. 15 There has been a change in both circumstances and law in the area of gay and lesbian equality. Accordingly, Professor Elaine Craig s observation is apt: Today s decision makers are expected to be much more protective of gay and lesbian equality than were the decision makers of ten, fifteen, or twenty years ago. 16 Canada should move forwards and not backwards as should its legal profession. Second, the Supreme Court s analysis in British Columbia College of Teachers is not entirely applicable to the question before the LSUC because there is something unique about the legal profession. Lawyers wield tremendous power in our society. 17 As such, lawyers have long considered it part of their professional responsibilities to use that power responsibly to safeguard the rights of minorities and protect them from discrimination. It is antithetical to the professional obligations of lawyers and the values of the justice system to discriminate against queer students by excluding them from attending a law school. It is hard enough to get into law school as it is. The LSUC should not increase that burden solely for queer students by accrediting a law school that effectively excludes them from admission. This is no more justifiable than a law school that excludes Chinese Canadians. At the end of the day, everyone must have equal access to the legal profession. 11 Halpern v. Canada (Attorney General) (2003), 65 O.R. (3d) Trinity Western University v. British Columbia College of Teachers, supra at para. 23 (S.C.C.). 13 Ibid., at para Saskatchewan (Human Rights Commission) v. Whatcott, supra at para. 123 (S.C.C.). 15 Canada (Attorney General) v. Bedford, [2013] S.C.J. No. 72 at para Craig, Elaine, The Case for the Federation of Law Societies Rejecting Trinity Western University s Proposed Law Degree Program (2013), 25 C.J.W.L. 148 at See letter from Rev. Dr. Linda Yates of St. John s United Church to Nova Scotia Barristers Society dated February 9, 2014, available online: < 09_Rev.Yates_TWU.pdf>. 4

5 Yours truly, Ken Jim Josephine Kiang Roslyn M. Tsao President Vice-President/Secretary Treasurer Wennie Lee Gerald Chan Jeffrey Lem CLE Director Media Contact Executive Member Sean Zhang Carole Suen Greg Chang Michelle Cheung Simmy Yu Sue Chen Howard Yeung Justin Ho Kari Chan 5

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