Letter: Call to lawyers: Think like lawyers

I would ask for that same degree of care from the rest of my profession, whatever conclusion each lawyer reaches.

Mr. Hergott’s column in the April 24, 2014 Capital News requires a reply.  Mr. Hergott, in his urging the public to “push the lawyers you deal with” to support an “uprising among the masses” by urging lawyers to support a motion that would bar graduates of Trinity Western University from practicing law in British Columbia, greatly oversimplifies a complex issue.

Like most uprisings, what “the masses” are proposing is that the lawyers of British Columbia ignore the existing law in Canada and British Columbia, and the volumes of material that went into the Law Society of British Columbia’s decision.  That decision, based on the facts and the law as the Benchers perceived them to be, defeated a similar motion by a vote of 20 to 6.  The Benchers are the Law Society’s governing body, elected by the members, and charged with the responsibility of making these difficult decisions.

Some background:  Trinity Western University has obtained all the approvals required to open a Law School.  The Federation of Law Societies of Canada, the body that the various Law Societies have delegated to approve new applications for a Law School, convened a special committee to study the Trinity Western proposal, and issued a comprehensive and carefully reasoned special report.  They reviewed the decision of the Supreme Court of Canada in the College of Teachers v Trinity Western University, in which this identical issue was argued in respect to graduates of Trinity Western’s teaching program.  In that case, the Supreme Court ruled that, absent of any evidence of real discrimination by graduates, the College had no grounds to deny Trinity Western graduates the right to teach in British Columbia.  The Federation of Law Societies engaged a respected constitutional lawyer, who wrote an opinion that the College of Teachers case is good law in Canada today.  Those documents are available to the public to review.

The British Columbia Ministry of Higher Education, the Provincial approving body for applications for new higher educational programs, reviewed Trinity Western’s proposal and approved the application.  As a result, Trinity Western can legally open a law school today.  Neither the defeated motion before the Benchers, nor the proposed petition, challenge the existence of the Law School.  Both aim at the students themselves, and require the Law Society to ban graduates, who will have fulfilled all the course requirements required by the Ministry of Higher Education, from practicing in British Columbia.

The Benchers of the Law Society did not take their task lightly.  They reviewed the Special Report of the Federation of Law Societies; they reviewed the College of Teachers decision; and they accepted and reviewed over two hundred submissions on this issue.  A special sitting of the Benchers was then convened that was web cast to anyone who wished to view the meeting.  At the meeting, every Bencher was given a five minute submission time and a three minute rebuttal.  It was clear that all the Benchers had carefully considered the issue, and were well aware of the importance of their deliberations.  Twenty of the twenty six benchers voted to defeat the motion that would disentitle graduates of Trinity Western’s law school from practicing in British Columbia.  A recording of that meeting is available through the Law Society for anyone who is interested, as are all the submissions made to the meeting.

The issue the Benchers faced can be summed up as follows:  If the College of Teachers decision is still good law in Canada, and because Trinity Western is a private religious institution and therefore exempt from the requirements of the Human Rights Code of British Columbia from review of its faith based decisions, what Trinity Western is proposing is lawful.  The Benchers, the governing body of lawyers in British Columbia, cannot therefore forbid that which the law allows.

The other issues the Benchers discussed included the following:  Trinity Western has been graduating teachers, nurses, and undergraduates who have gone to existing law schools, and there has never been a complaint of discrimination by one of those graduates.  Also, what the motion would propose is that the Law Society forbid an applicant to practice law in British Columbia on the grounds, not just of the faith of the applicant, but on the grounds of the faith of the school where the applicant received his or her education.  This introduces a whole new requirement into the approval process.  Law Societies, if they were to take this road, would become the body that would ensure that a prospective lawyer’s beliefs are in conformity with the beliefs of the Benchers, whatever those beliefs might be from time to time.  I think it is safe to say there are a number of prominent lawyers and judges practicing today that might fail such a test, even though they have practiced for all their years of service, faithful to the oath they took as a barrister before they were called to practice.

Also, if the Law Society of British Columbia were to ban graduates of Trinity Western from practicing in British Columbia, those graduates could still practice in Alberta, Saskatchewan, or the North West Territories, who have approved the admission or Trinity Western graduates.

So rather than a call to clients to tell their lawyers how to think, I would rather a call to lawyers to do as the Benchers did in their deliberations, and to think like lawyers.  Before a lawyer votes on a petition to initiate a “mass revolt”, I would hope that the lawyer would review all the material the Law Society’s Benchers reviewed.  I would hope that they would consider the material carefully, and in the awareness that there are issues here that go beyond our gut level reaction to one small clause in a comprehensive community covenant.  If, after reviewing the material and giving the matter careful consideration, a lawyer still believes that 20 of the 26 Benchers got it wrong, and if the lawyer is comfortable with the Law Society barring admission to Trinity Western graduates on the basis of the faith statement of the school where they were educated, then it is their right to sign the petition, and I have no quarrel with their decision.  Six of the Benchers voted in favour of the motion.  Their submissions were as carefully considered and well-reasoned as the majority submissions.  I would ask for that same degree of care from the rest of my profession, whatever conclusion each lawyer reaches.

Respectfully submitted,

Ron Smith, QC,Kelowna


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