Trinity Western wins this round
B.C. chief justice reinstates original approval of proposed law school
B.C. Supreme Court Chief Justice Christopher Hinkson has hammered Law Society of B.C. governors for not treating Trinity Western University fairly.
In the stinging 43-page rebuke, the chief justice said the legal regulator’s board of directors, known as benchers, abrogated their responsibilities after calling a referendum on TWU’s proposed law school.
The benchers didn’t do their duty, infringed the school’s freedom of religion and “allowed the members to dictate,” he said.
He added the benchers denied TWU the opportunity to fully and fairly present its case during their deliberations.
“Even if I am wrong, and the benchers had the authority to delegate the decision to the members, I find that the decision was made without proper consideration and balancing of the charter rights at issue, and therefore cannot stand,” Hinkson said.
However, he declined to make any of the requested broader declarations and instead only reinstated the society’s original approval of the school.
“This decision is important to the public and the legal profession,” Law Society president Ken Walker said. “We will be reviewing the reasons for judgment carefully and consulting with our legal counsel regarding next steps.”
TWU spokesman Guy Saffold celebrated Thursday’s ruling.
“At least if it is in your favour you are happy for the day, but we know there is more process to come,” he said. “It’s a good day, but there’s always tomorrow.”
Established in 1962, the private Langley-based Evangelical institution hoped to open a law school next year.
But the largest Christian university in Canada, with about 4,000 students, requires staff and students sign a “Community Covenant” in which they pledge to maintain biblical ideals and eschew sex outside of traditional heterosexual marriage.
The school received preliminary approval for the proposed law school from the Canadian Federation of Law Societies and the B.C. Government in December 2013.
And the Law Society of B.C. (LSBC) initially approved it in April 2014, though that decision triggered a rebellion among B.C. lawyers.
As a result, on Sept. 26, 2014, the benchers voted to hold a referendum.
In the October 2014 poll, 5,951 (74 per cent of those who voted) of the roughly 13,000 LSBC members voted to deny TWU accreditation and 2,088 voted against it.
After, the benchers did an about-face, withdrawing their approval.
“I conclude that the benchers permitted a non-binding vote of the LSBC membership to supplant their judgment,” Hinkson said.
“In so doing, the benchers disabled their discretion under the (Legal Profession Act) by binding themselves to a fixed blanket policy set by LSBC members. The benchers thereby wrongfully fettered their discretion.”
Hinkson said the benchers properly considered the issue in April 2014 by weighing the complex issues and balancing the constitutional rights.
“There is no basis upon which a conclusion could be drawn or any evidence from the Special General Meeting or the October Referendum proceedings that the LSBC’s membership considered, let alone balanced, the petitioners’ charter rights against the competing rights of the LGBTQ community,” he said.
In other provinces, there was similar controversy over the school.
The Nova Scotia Barristers’ Society and the Law Society of Upper Canada each refused to recognize TWU graduates.
In Nova Scotia, the court ruled in favour of the university and in Ontario against it, but both those judgments are under appeal.
In light of the dispute, Victoria withdrew its approval of the law school in December 2014.
Saffold said no law school would open until the legal wrangles are resolved because of the commitment required from students.
He also said there were no plans to drop the covenant.
Chief Justice Hinkson concluded the law society infringed on the charter right of freedom of religion of the university and a potential student, but declined to consider, as alleged by some interveners, it also breached their freedoms of association, expression and equality.
“We are very disappointed that the decision did not engage with the human rights issues at stake in the case, instead deciding the case on procedural grounds,” noted Kendra Milne, on behalf of one of many interveners in the case, West Coast LEAF. “B.C. lawyers voted twice and made it very clear that they want an inclusive profession that respects equality.”
The ruling, as with those in Ontario and Nova Scotia, is expected to be appealed and ultimately the case is believed headed for the Supreme Court of Canada.