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Trinity Western University (TWU) is a private faith based university based in British Columbia. TWU has sought approval to establish a law school. The Federation of Law Societies of Canada has approved the proposed TWU law school program.

As President of the Law Society of Alberta, I am concerned about ensuring our profession represents the diversity of the communities that lawyers serve. The Law Society of Alberta is aware of likely challenges to the Federation’s decision, and we would welcome a judicial determination on this question. We would also welcome the opportunity to work together with the other law societies in Canada, through the Federation, to consider amending the law degree approval criteria to address these issues.

The Federation of Law Societies is the national umbrella organization for the various provincial law societies in Canada, including the Law Society of Alberta. The Law Society is the regulator of the legal profession in Alberta, and it carries out its responsibilities in the public interest.

The TWU application has been controversial because of the existence of a mandatory community covenant at that school. Among other things, that covenant prohibits sexual intimacy “that violates the sacredness of marriage between a man and a woman”, and goes on to state that sexual intimacy is “reserved for marriage between one man and one woman”.

All Canadian law schools now operate in an environment where Canadian lawyers enjoy mobility rights - a law license from any province allows each lawyer to practice, on a temporary or permanent basis, in every other province in the country. Mobility started as a patchwork arrangement, but has now been extended from coast to coast. It is a hugely important achievement for lawyers and their clients. Canadian law societies have been at the forefront on breaking down barriers to trade between the provinces, and this can only have the effect of reducing the cost of legal services.

A consequence of mobility is that the provincial law societies are actively working to harmonize education, admission and discipline standards across the country, all under the framework of the Federation.

A Canadian common law university degree must be portable from one province to another within the national mobility framework. We cannot have a circumstance where a particular degree is recognized in some provinces and not others - that could not work with mobility.

The Federation’s common law degree approval process was designed to ensure consistency in the approval of law degrees across Canada. The Law Society of Alberta has subscribed to these principles by delegating the approval of law degree programs to the Law Degree Approvals Committee of the Federation of Law Societies. The Law Society of Alberta delegated this authority because we are firmly of the view that common law degree programs must be assessed at the national level in order to preserve uniform standards and mobility rights.

The national approval system was developed to ensure that those entering the legal profession have demonstrated relevant legal competencies. The criteria did not anticipate the creation of a faith based law school, and thus criteria were not developed to deal with the issues that arise in the case of TWU.

The TWU law school application was made in the context of a Supreme Court of Canada decision from over a decade ago regarding TWU’s community covenant and the education of teachers by TWU: Trinity Western University v. British Columbia College of Teachers, [2001] 1 S.C.R. 772. In that case, the Court found there was a need to balance the charter rights of freedom of religion and the right to be protected from discrimination based upon sexual orientation, and that in a private institution which receives no government funding, Trinity Western University was operating within the law.

There are differences between the TWU law school application and the teachers’ case, and it is not entirely clear that the Supreme Court decision is determinative of the TWU law school application. The Law Society is aware that this is a contentious issue, and we are aware of and concerned about the impact of the TWU community covenant on gay and lesbian students.

As President of the Law Society of Alberta, I am especially concerned about ensuring that our profession represents the diversity of the communities that lawyers serve. It remains open to the law societies in Canada, working together through the Federation of Law Societies, and other stakeholders, to consider amending the law degree approval criteria to address these issues, and we anticipate that discussion will take place.

As noted above, the Law Society of Alberta is aware of likely challenges to the approval decision of the Federation. The balancing of rights can be contentious. We would welcome a judicial determination that would have national application, as that would preserve the national mobility regime, while deciding whether the TWU community covenant can be maintained in a school offering an accredited legal education in Canada.

Sincerely,

Carsten Jensen, Q.C.
President, Law Society of Alberta

 

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