Memo to the SCC: There's more to Trinity Western than LGBTQ2 equality
It has been said that hard cases make bad laws. This is the jeopardy facing the Canadian legal profession in late November, when the Supreme Court of Canada (SCC) will hold hearings that determine the outcome of Trinity Western University’s (TWU) bid to open a law school that is accredited by provincial law societies. The case is a test of legal mettle that meshes administrative law, the application of the Charter of Rights and Freedoms, and human rights codes in a decision that must reconcile legislative differences in Ontarioand B.C. (and will have repercussions in other provinces).
Of course, the dispute has entered into public consciousness more simplistically – as the next frontier in the clash of conservative Christian values with LGBTQ equality. Indeed, many of the legal minds and commentators who have been engaged on the matter have adopted this reductionism. TWU has not helped matters – going to great lengths in its crusade to mischaracterize the debate for their own ends (which I have discussed here and here).
But more is at stake for the future of Canada’s legal profession than affirming equality for LGBTQ students, and our court of last resort needs to be well-advised of these issues and the broader ripples its ruling will have on the accessibility of the legal profession. The risk is that some of these consequences may be lost on the appellate lawyers and justices, who are generally very senior and often out of touch with the struggles of current day law students and junior practitioners. (The Dead Poets Society-sort that tend to romanticize their own legal apprenticeships.)
As lawyers, we regularly hear jurists sermonizing about the importance of using our careers to defend the public interest and promote access to justice, but with scant guidance on how to square this with the present-day economics of becoming a lawyer or the profession’s labour force dynamics. If the SCC is sincerely concerned with promoting access to justice, legal services, and justice institutions, the case at hand provides an opportunity to nudge law societies and governments to take a heavier hand on the general accessibility of law schools, who are the true gatekeepers of the bar and bench – not to turn a blind eye, as TWU might prefer.
This is because a central issue in the TWU litigation is the extent to which a law society has jurisdiction over (or can make demands of) the policies of law schools and their university motherships – particularly where the policies are non-curricular in nature. Ontario is a key battleground in this litigation (owing to the size of its legal profession), and the position of the Law Society of Upper Canada (LSUC) is illustrative.
LSUC successfully argued before the Ontario Court of Appeal that it has authority to make by-laws "governing degrees in law" and "respecting legal education, including programs of pre-licensing education or training", and that throughout its 200 year history, that it has never ceded this authority, even after authorizing university law faculties to offer prerequisite legal education programs for admission to the bar.
On application to LSUC, TWU was denied accreditation because its policies effectively ban LGBTQ-identifying students from enrolling at the school. TWU’s Community Covenant Agreement requires students to abstain from “sexual intimacy that violates the sacredness of marriage between a man and a woman” – a de facto admission requirement that clearly has nothing to do with merit. LSUC’s rejection is somewhat novel because LSUC has never refused accreditation based on any other exclusionary policy at a law school.
LSUC maintains that it has exercised its authority in accordance with its statutory mandate, and that it is in the public interest to promote equal access to the profession through the law school accreditation process. The existence of equal opportunities to access the bar is important for law, as compared to other professions, because law is a gateway to numerous institutions, interfaces, and offices of state (like the judiciary itself) which ought to be freely available to all qualified Canadians. LSUC asserts that “the Law Society cannot be precluded from considering policies directly related to the admission of its prospective licensees. [It] cannot legitimately maintain its commitment to equality and diversity at the same time as it denies equal access to the profession.” LSUC insists that given that the demand for legal education far exceeds the number of law school spaces available, it is crucial that access to legal education be based on “merit alone”.
But admission to law school and the legal profession (and the full range of its opportunities) has arguably never been less about merit and equal access than it is today. For all LSUC’s bluster, it became this way on their watch. Ontario’s law school tuition – another species of university policy – is one of the most impregnable barriers to the practice of law. Together, the skyrocketing cost of law school and hefty bar fees price many out of considering law to begin with. With rising costs, their numbers grow every year, and likely already far exceed the number of would-be lawyers who would be held back by the TWU Community Covenant. If accessibility and equity were serious concerns to a law society, most of Ontario’s current law schools would be denied accreditation on this basis, just like TWU (as I’ve argued elsewhere). So long as the regulator refuses to take a stand on the affordability of pathways to the bar, it will never achieve the meritocracy it claims to protect in the TWU litigation. Just ask Amy Kishek or Eric Girard, or read the comments from participants in the Law Students’ Society of Ontario’s 2014 study.
To be fair, LSUC’s assertions about equal access are righteous. The problem is that they are also somewhat hollow. At its most basic level, protecting merit-based admission to the bar helps the profession to do its job. Lawyers generally work to be advocates for members of the public and to craft arguments couched in the public interest. But a profession increasingly built of homogenous socioeconomic privilege cannot relate to the full range of the public’s lived experiences or legal needs, and is a poor instrument for supporting access to justice. The more elite the lawyer’s craft becomes, the further law societies will drift from their legislative moorings.
Our judiciary should be alive to this concern. At one time, it appeared to be: former Chief Justice Brian Dickson once wrote that “the ethos of the profession is determined by the selection process at the law schools. In order to ensure that our legal system continues to fulfil its important role in Canadian society, it is necessary that the best candidates be chosen for admission to law schools... it is incumbent upon those involved in the admission process to ensure equality of admissions.” LSUC relied on this passage at the Court of Appeal.
Chief Justice Dickson would likely be dismayed at the sticker price of today’s three-year law degrees. Obviously a healthy bank balance is not a stated admission requirement, but the distinction between the purpose and effect of exclusionary policies should not be lost on lawyers either. Certainly, in the age of Ellen DeGeneres and all-party political support for same-sex marriage, it is ‘easy’ and somewhat in fashion to stand up against policies which advance blatant discrimination against an easily-identified group, like LGBTQ people, but often it is policies that exclude indirectly that are more pernicious and difficult to rectify. This should not make them less worthy of our concern.
This fall, it should be apparent at law school orientations across the province that the costs of becoming a lawyer are excluding otherwise-qualified individuals. Tuition at Osgoode Hall Law School will surpass $28,000 per year for this year’s entering class. (In 2011, when I enrolled, it was just over $19,000, which is still unreasonable, but slightly more manageable.) Tuition at the University of Toronto’s Faculty of Law is almost $40,000 per year, with the other Ontario schools following closely behind Osgoode. Despite limited initiatives by the law schools themselves to ease the financial burden for some, there is no indication that these annual fee hikes are going to end anytime soon. Often, those left out are equity-seeking individuals or candidates from other groups that already experience heightened barriers to accessing justice or navigating the legal system.
LSUC itself acknowledged before the Court of Appeal that “[t]he Law Society's mandate cannot be limited to mere assessments of competence of a cohort that results from discrimination.” However, by declining to act on the now-questionable grounds that it has no jurisdiction over law schools, its approach to TWU smacks of cherry-picking, not principle. As long as the profession is hesitant to confront its own systemic exclusion problems, its other accessibility and equity strategies will be no more effective at improving the face of the legal profession than Earth Hour is at winding back the clock on climate change.
The SCC should – absolutely – be persuaded to support the law societies’ fight for LGBTQ admission equality. But in doing so, it would not be misplaced for the court to also find its arguments hypocritical. While I am not optimistic that these regulators will be hoisted by their own petard anytime soon, recent suggestions that the court monitors its critics on social media have been encouraging. Let’s hope they are scrolling through with interest.