In June 2012, Trinity Western University submitted a formal proposal to open a law school; not just any law school, but Canada’s first private law school, and the first to educate lawyers from a Christian perspective.
In November 2017, TWU will argue for its right to open the law school at the Supreme Court of Canada.
What has happened in those five years, and why?
The proposal for the TWU School of Law was 20 years in the making. Intensive work starting in 2009, and broad consultation in the legal profession and with other law schools, preceded the final proposal in June 2012. Two approvals were required: one from the Federation of Law Societies of Canada (the “FLSC”), the other from the Minister for Advanced Education of British Columbia (the “Minister”).
The Deans of Canadian Law Schools raised an objection shortly after the proposal was submitted. They objected to the part of the Community Covenant which reflects TWU’s commitment to the traditional Christian view of marriage between a man and a woman. Others joined in opposition to the proposed School of Law and prompted the FLSC to add a step to its review and approval process.
The planned opening date of September 2015 had to be pushed back to 2016.
The required approvals were granted in December 2013:
The FLSC confirmed that the proposal met the national requirement for a common law program. The national requirement was developed by the FLSC with the input of all the individual law societies in Canada to provide a consistent basis for acceptance of law graduates into their bar admission programs.
The Minister also confirmed that the proposal met British Columbia’s requirements for approval of a new degree program.
In early 2014, the opposition to the proposed School of Law was re-kindled by the Deans and the Canadian Bar Association. The opposition prompted law societies in Nova Scotia, Ontario and British Columbia to undertake public review processes, notwithstanding the approval granted by the FLSC.
The leaders of the law societies in Nova Scotia and Ontario decided in March and April 2014 that they would not recognize graduates of TWU’s School of Law. The two law societies objected to the Community Covenant (Nova Scotia and Ontario). TWU took legal action in those provinces (Nova Scotia and Ontario), arguing that the decisions violated its rights and the rights of an individual, Brayden Volkenant, under the Canadian Charter of Rights and Freedoms.
Meanwhile, the law society in British Columbia also engaged in a public process to consider whether TWU’s law graduates should be recognized. That process led to dozens of submissions and the law society itself seeking a number of legal opinions. After a comprehensive debate, the leaders of the BC law society voted in favour of TWU by a 20 – 7 margin in April 2014.
Some lawyers in BC who were unhappy with that decision forced a special general meeting and achieved a majority vote against TWU in June 2014. In an unprecedented move, the leaders of the BC law society decided on September 26, 2014 to put the matter to a secret ballot referendum and to be bound by the outcome. The vote was completed on October 30, 2014 and resulted in another majority against TWU. The leaders of the law society decided the next day to not recognize the graduates of the School of Law.
When the BC law society reversed its original approval, the Minister became concerned that the professional degree program he had approved might not lead to acceptance in that profession. The Minister decided that he should revoke his previous approval of the law degree program and wait for the outcome of the litigation.
The planned opening date of September 2016 had to be pushed back indefinitely.
TWU took legal action in BC, similar to the actions started in Nova Scotia and Ontario. Those three provincial law societies are the only ones to decide against TWU. Several others have decided to recognize the graduates of the School of Law, and some are awaiting the outcome of the litigation before making a decision.
The first case to come to court was in Nova Scotia. The Nova Scotia Supreme Court decided on January 28, 2015 in favour of TWU and Brayden Volkenant.
The law society in Nova Scotia appealed that decision. The Nova Scotia Court of Appeal decided on July 26, 2016, again in favour of TWU and Brayden Volkenant. There was no appeal of that decision.
The case in Ontario came before that province’s Divisional Court. The court decided on July 2, 2015 against TWU and Brayden Volkenant. That decision was upheld by the Ontario Court of Appeal on June 29, 2016. That decision has been appealed to the Supreme Court of Canada.
The case in BC was first heard in the BC Supreme Court. Chief Justice Hinkson decided in favour of TWU and Brayden Volkenant. The law society appealed, and their appeal was dismissed on November 1, 2016. The BC Court of Appeal said, in part:
 A society that does not admit of and accommodate differences cannot be a free and democratic society — one in which its citizens are free to think, to disagree, to debate and to challenge the accepted view without fear of reprisal. This case demonstrates that a well-intentioned majority acting in the name of tolerance and liberalism, can, if unchecked, impose its views on the minority in a manner that is in itself intolerant and illiberal.
The BC law society appealed to the Supreme Court of Canada. Its appeal, and the TWU appeal of the Ontario decision, will be heard on November 30 and December 1, 2017.
As appellants and respondents in the two cases, TWU and Brayden Volkenant are arguing at the Supreme Court that their Charter rights have been violated. The Ontario and BC law societies are arguing that they are required in the public interest to deny recognition to TWU’s law graduates because of the Community Covenant; they do not challenge the quality or any aspect of the proposed law program.
There are more than 25 other organizations (known as interveners) making arguments at the Supreme Court of Canada for the BC case and the Ontario case. The number of interveners that the court has agreed to hear, and the breadth of their arguments, attest to the significance of TWU’s case.
The court will hear much about the freedoms of conscience and religion; thought, belief, opinion and expression; association; and equality (sections 2(a), (b), (d) and 15 of the Charter). The court will be asked to once again emphasize the importance of those freedoms to supporting a thriving democracy and a vibrant diversity. This promises to be one of the most significant Supreme Court of Canada cases in a generation.
The earliest possible date for opening the School of Law at TWU is now September 2019. That’s a long delay of four years, but it will be worth the wait.