Douglas W. Judson
The case that comes after Trinity Western
This column appeared in Canadian Lawyer Magazine. |
The Supreme Court of Canada is currently penning the final chapter in Trinity Western University’s law school saga – a legal drama that has wound its way up to the top court from Ontario and B.C. over the past 4 years.
In their reasons, the justices are expected to deliver a landmark ruling on the balance of equality and religious freedom rights in Canada. In doing so, they could also queue the next challenge to the gatekeepers of Ontario’s legal profession. That challenge is whether the cost of legal education at existing Canadian law schools is at odds with the access to justice or public interest mandate of law societies, and whether law societies or governments have a duty to regulate it.
Ontario’s Attorney General appears to think so. His intervention at the SCC was focused on the public interest duties of the Law Society of Ontario and the AG. His counsel told the court that respecting the public interest requires a legal profession that is able to tap into the talents, skills, and perspectives of a diverse population – and that the profession will not reflect that diversity if there are non-merit barriers to entry in the way – such as the one defended by TWU. Lawyers are, of course, unique from other professionals in that they have a role in refining the architecture of a free and democratic society – most immediately as the public’s interface with its institutions and the rule of law. Our judiciary, for example, consists of lawyers, and such offices should be reasonably available to all qualified Ontarians.
When asked by Justice Russell Brown whether law school tuition fees were a discriminatory barrier to entry, the AG’s counsel stated that while tuition does not engage an immutable personal characteristic like sexual orientation, “[t]here may well be an argument in a different case that an accredited law school may not set their fees so prohibitively high … so as to curtail the [admission] of meritorious candidates.” With legal education now unaffordable for most middle-income households, the case he foretells may follow more closely on the heels of the TWU litigation than his client or the Law Society expects.
This candid exchange is buried in 2 days’ worth of oral argument at the SCC. Over 30 parties made submissions on the question of whether or not the B.C. and Ontario law societies could deny accreditation to TWU’s proposed law program on the basis that the school’s policies discriminate against LGBTQ people. At the heart of this debate is TWU’s Community Covenant Agreement – a mandatory pledge for incoming students that requires them to abstain from "sexual intimacy that violates the sacredness of marriage between a man and a woman." The Covenant requires TWU community members to enforce its terms against one another, and its breach carries disciplinary sanctions, including expulsion. The Covenant’s discriminatory effect is self-evident and – in the words of Ontario’s lower courts – it requires LGBTQ individuals to disavow their very identity, and it hurts. The Law Society of Ontario has maintained that they cannot accredit a pathway to the profession that is not equally available to all, based on merit.
The case before the SCC is a complex one. It pits human rights, administrative law, and conflicting Charter rights against the differing procedural backdrops of two law societies. Given all of these moving parts, it may not be an ideal case for the court to make any transformative changes to the law. Nonetheless, it also provides an ideal beachhead to address the Law Society of Ontario’s refusal to seriously engage with the problem of skyrocketing law school tuition. As former Chief Justice Brian Dickson stated, and the Law Society quoted in its argument, “…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.”
But today the ‘best’ candidates cannot possibly be chosen, because the pool of applicants is inherently exclusionary. A student who enrolled at the University of Toronto last September will pay well over $100,000 for tuition over the 3-year program. Next fall’s entering class at Osgoode Hall Law School, where I studied, will pay $28,000 per year – almost $10,000 more than I did just 6 years ago. The price tags of the other Ontario law degrees are no bargain either, and the wages that await law grads haven’t budged.
Evidence of a financial barrier to the bar is abundant. The Law Students’ Society of Ontario’s 2014 report, Just or Bust, highlights the financial hardship of then-law students. Countless comments in that report – and other profiles of law students which have appeared in the media – have depicted law faculties as finishing schools for the elite. They are often hostile places for the middle class, nevermind those of lower socioeconomic means or equity-seeking identities. The immediate impact of exclusionary tuition rates is a professional community that compounds its own lamentable mental health and substance abuse statistics; the longer-term ones are a bar that is out of touch with the general public and can’t afford to provide service to the poor, and a bench whose members all grew up going to private schools in places like Rosedale.
An accessible and representative bar helps the profession to do its job for Ontarians. A profession that does not look like the public and cannot relate to the full range of its lived experiences is poorly suited to these tasks, and is a poor instrument for supporting access to justice. The more elite the lawyer’s craft becomes, the further the Law Society drifts from its moorings under the Law Society Act. Fostering an accessible legal profession that is reflective of the society it aims to serve is a component of providing access to justice.
Sadly, the exclusionary impact of the cost of a law degree is as obvious as it is shameful. That’s why, if the Law Society’s position in the TWU case is adopted by the court – the regulator should next be called on to revisit the accreditations of most – if not all – of the currently accredited Ontario law schools on the basis that their tuition rates defy the public’s interest in maintaining an accessible legal profession. In effect, the Law Society of Ontario will be hoisted by their own petard. The TWU litigation has been the flagship of renewed Law Society concern for equity matters related to the practice of law. Its arguments before the courts have been filled with bravado around its role in regulating legal education, despite abdicating responsibility for its discriminatory economics. It may soon have to live up to this jurisdictional bluster.
To date, the Law Society’s hesitancy to engage this problem seriously impairs the impact and credibility of its other equity projects and initiatives. The profession’s internal equity, accessibility, and inclusion policies are simply window dressing if there is no care given to how the gateway to the profession itself excludes or imposes barriers to Canadians before they are even qualified to write the bar exam. So long as the profession is hesitant to confront its own systemic accessibility problems, its other equity strategies will be no more effective at improving the face of the Ontario legal profession than Earth Hour is at winding back the clock on climate change.
For this reason, the TWU decision is an opportunity for the court to plot a new course for the legal profession, and its own future. The risk, of course, is that the senior jurists tasked with weighing the TWU brief will lack the perspective of today’s debt-strapped law grads and those that sticker shock kept out of law school to begin with.