Popular opinion or legal principle? TWU case heard in B.C.

25 August 2015

By EFC President Bruce J. Clemenger

(The EFC and Christian Higher Education Canada are interveners in support of TWU).

B.C. is one of three provincial law societies that have refused to accredit the law school even though the proposal to establish a law school was approved by the Federation of Law Societies of Canada. The FLSC would not have given its approval unless it believed TWU could provide a quality legal education. Two cases have been heard in Nova Scotia and Ontario, with the court in Nova Scotia ruling for TWU and the one in Ontario against. Both are being appealed.

TWU SignThe three law societies refusing TWU accreditation do not deny that TWU can provide a high quality legal education. Their objection is not concerned with the academic merit of the school but rather its community covenant – TWU requires students and faculty to agree to specific conduct consistent with the religious beliefs and commitments that undergird TWU. TWU affirms marriage is the union of one man and one woman – and sexual intimacy should only be expressed within marriage.

The Law Society of British Columbia (LSBC) benchers – the group that sets academic requirements for the LSBC – originally sided with TWU’s application. It found no reason to refuse to admit graduates of TWU to the practice of law. It was only when this original decision was put to a referendum amongst members of the law society (the majority voted who against TWU) that the benchers reversed their decision and voted not to approve the law school.

The rights of a minority – the religious freedom of the TWU community to practice their faith – were determined not by their merits and legal principle, but by popular opinion.

The BC Minister of Advanced Education had also originally given the government’s consent to the proposed TWU law school, having established an expert panel to review the application. But when the LSBC reversed its position, the Minister withdrew his consent.

While the accreditation refusals in Ontario and Nova Scotia  would not bar TWU from establishing a law school, the stakes are higher in BC. because the government has made TWU law school conditional on the LSBC’s approval.

The Community Covenant has already been found acceptable in previous court cases. Having the Covenant is not contrary to the Human Rights Code or the Charter. In fact the Supreme Court of Canada has previously ruled that the Covenant should not be a barrier to the approval of TWU programs or the recognition of its graduates.

As TWU states it, the Covenant is “part of TWU’s Christian philosophy of education, which integrates academic learning, spiritual formation and moral character development in a manner consistent with TWU’s view of biblical truth.”

In our factum filed with the court, we said “Since Roman times, Christians have self-defined, in part, through Statements of Faith, and the Codes of Conduct which emanate directly from them. Both aspects – shared affirmation of belief, and the communal living in accordance with those beliefs – are essential components of a Christian subculture.”

The proposed law school is being rejected for religious reasons. The Law Society of B.C. is requiring TWU to change its beliefs to gain accreditation.

As we argued in our factum: “The Charter reserves to the evangelical community, not to the Law Society, the freedom to decide for itself what its religious beliefs state about the importance of enforcing moral standards within its own voluntary religious community. The expert evidence in this case is uncontradicted and was correctly summarized by Justice Campbell: “Learning in an environment with people who promise to comply with the code is a religious practice and an expression of religious faith. There is nothing illegal or even rogue about that. That is a messy and uncomfortable fact of life in a pluralistic society.”

The implications of this case extend beyond TWU.  Most Christian colleges and universities have codes of conduct, as do many other religious organizations.

The president of TWU, Bob Kuhn, has asked for prayer this week. He has asked people to pray that:

  1. God would be glorified through this process;
  2. The Court’s decision would be favourable;
  3. There would be a strong presence of supportive attendees in the courtroom;
  4. The voices of the formal intervenors arguing in support of TWU at the hearing would be clear and convincing;
  5. The Charter freedoms enjoyed by people of faith in Canada—freedom to believe, speak, act and gather together—will remain secure;
  6. The TWU community would continue to gain favour in the hearts and minds of the public;
  7. Faculty members, staff, students, and the leadership team would have wisdom and strength when they find themselves engaged in any consequential debate; and
  8. We would stand firm in faith, have courage, and we would do all this in love (1Cor. 16: 13, 14).

Consider taking time this week and praying for this important case.

Author: Bruce J. Clemenger