ideology in academia

27
TRINITY WESTERN UNIVERSITY LAW SCHOOL Ideological Issues in Academia Jan Whyte A00815823 [email protected]

Upload: jan-whyte-btech-mciarb

Post on 18-Aug-2015

30 views

Category:

Documents


0 download

TRANSCRIPT

Page 1: Ideology in Academia

TRINITY WESTERN

UNIVERSITY LAW SCHOOL Ideological Issues in Academia

Jan Whyte A00815823 [email protected]

Page 2: Ideology in Academia

1

Executive Summary

The accreditation of Trinity Western University’s Law School by Provincial Law Society has caused

conflict across the Country of Canada. The privately owned, public access University has moral code

requirements that transgress statutory law in Canada – The Canadian Human Rights Code and the

Constitution through the Charter of Rights and Freedoms. Is ideological conflict enough to discredit a

program in a post-secondary University? Are the moral requirements of a private University considered

ideological religious requirements or legal infractions? Can a Provincial Regulatory Authority – Law

Society – decide whether secular moral beliefs discredit and disqualify a group of individuals to the

point of being unfit for duty in the profession? These and other questions will be examined in this

report.

Ideology – a set of firm beliefs which the person or person hold so dear that they do not consider the

other equally firm set of beliefs can or should co-exist – are at the root of conflicts in Canada. On the

one hand, we welcome differences of opinion and the developed Government and most citizens of

Canada do welcome diversity. However, when we have immigration from less developed countries, the

gap between Canadian tolerance and immigrant ‘relocation’ of undeveloped ideological beliefs create

danger for the Canadian public. It is well known that Canada is the “melting pot” of various cultures

from around the world. In order to maintain and improve its economic performance, Canada

encourages immigration from all ethnic populations. With that invitation comes an increased

probability of conflict in ideals and beliefs.

In this case, there are two firm sets of ideological beliefs. One claims freedom of behavior based on

religious beliefs, which are protected under the Canadian Charter of Rights and Freedoms. The other

group, also firmly braced in an ideological stance, believes all person who voluntarily agree to a

mandatory (with punitive results if breached) code of conduct that is contrary to Canadian laws, are

unfit to practice the profession of law, which has of course at its root principle the fact that the

practitioners follow and uphold the laws of Canada and the Province(s) within which they are granted

Membership and the legal right to practice law.

A major analysis of the facts from each of the groups in the areas of philosophy of law, existing

legislation and common law, the ideological belief as well as the best possible outcome (what would

ultimately be achieved) in the case of the “pro” or “con” argument with respect to a blanket non-

accreditation of graduates from Trinity Western Law School by certain Provincial Law Societies

revealed an absurd result should either party “win”. This is a serious matter, as there are multiple

formal cases filed in the Canadian Courts which will undoubtedly make their way to the Supreme Court

Page 3: Ideology in Academia

2

of Canada for final disposition (as did a 2001 case involving the Trinity Western University and the BC

Teachers’ Federation).

A further analysis of the facts revealed that the best possible result was that each of the ideological

groups consider a non-traditional approach to the philosophy surrounding their differences, which are

law-based. In dropping the arguments of “natural law” on behalf of Trinity and “command rules” on

behalf of the Law Society, the possibility of “economic law” emerged. This doctrine, equally well

established as the other two in early legal development (as early as 100 B.C.), brings the best possible

result for everyone involved.

A perspective shift by each party could bring them to unite in a common ground area they both occupy

– business. This shift toward business and economic law principles will take the spotlight off of the

ideological gap which currently defines the issues between the parties. While this solution will not

resolve the gap – indeed it may never be resolved because of the long-standing nature of conflict when

religious ideals are at stake – it will bring peace and good Government of Canada, the vision of the

Constitution of Canada which has been so faithfully pursued by Canadians since its pronouncement in

1847.

Jan Whyte

Forensic Intelligence Analyst

May 11 2014

Page 4: Ideology in Academia

3

Table of Contents

Executive Summary ....................................................................................................... 1

Introduction ................................................................................................................ 4

The Problem ............................................................................................................. 5

Facts ...................................................................................................................... 6

Students of Trinity Western University .......................................................................... 7

Graduated Law Students as Practicing Lawyers ................................................................ 8

Advocates of the Law ............................................................................................... 9

Analysis ................................................................................................................. 10

Interpreting the Law .............................................................................................. 10

Natural Law ......................................................................................................... 11

Moral Truth ......................................................................................................... 12

Law as Commands ................................................................................................. 13

Utilitarianism ....................................................................................................... 14

The Economic Analysis of Law ................................................................................... 14

The University ...................................................................................................... 15

Pros vs. Cons – Law Society Allowing Accreditation of TWU Law Grads .................................... 16

Trinity Western University, The Business......................................................................... 18

Argument ............................................................................................................... 20

Interpretation of Legislation and Common Law in Canada ................................................. 20

Case Law ............................................................................................................ 21

Common Law – TWU Academic Issues (Student Discrimination) ........................................... 23

Conclusion ............................................................................................................. 24

Ideological Effects on Civil & Criminal Justice Systems .................................................... 24

Solution .............................................................................................................. 25

Works Cited ............................................................................................................... 26

Page 5: Ideology in Academia

4

Ideology in Academia – Trinity Western University vs. Law Societies of Canadian Provinces

Introduction

Trinity Western University is a Christian University physically located near Langley, British Columbia. It

requires its students to sign a pledge abstaining from sex outside heterosexual marriage. (Braha, 2014)

Religion becomes an ideology when the followers of this religion cannot tolerate the existence of those

who have different views or beliefs, and when they understand their religious text literally and refuse

to accept any way of understanding the religion other than their own way of understanding (Glazov,

2010).

I find that Trinity fits this definition because it has imposed a Code of Conduct that is subject to

expulsion from the school if breached, ie irreparable harm to the student for loss of monies invested to

date in their education at that facility.

Trinity’s ideological stance has caused some concern in its recent application for a Law School,

effective 2016. There are numerous lawsuits both proactively and defensively involving the School,

which cite arguments of discrimination, fitness to practice in the profession and unreasonably

withholding membership status for graduates of the Trinity law school program (Ontario, Nova Scotia).

Page 6: Ideology in Academia

5

The Problem

The first factor in this case – the ideological principles of Trinity Western University - may be in conflict

with the laws of Canada. While there have been cases that uphold the University’s right to conduct

itself as an educational facility and thus in accordance with its ideological belief, there is a new twist

to the impact of those ideological beliefs on the citizens of Canada, and perhaps the World.1 The idea

of discriminating against an applicant to the Law School who might otherwise be a suitable candidate

based on their unwillingness to ascribe to the ideological beliefs of the University is strongly objected

to. But it is objected to not by a student, but by the second player in this ideological conflict – the

group of professionals who will ultimately be hiring the legal graduates.

The second ideological factor – the ideas and logic contained in the practices of a certain group of

professionals who, as a part of their professional conduct, are expected to uphold the laws of Canada.

These professionals say that should the University be allowed to produce graduates of its Law Program

who have agreed to uphold the University’s (alleged discriminatory) practices, those person would not

be suitable for the practice of Law in Canada as they would not meet the thresh holds established by

the profession for conduct that does not contravene the laws of the land. In British Columbia, same sex

marriage is legal and before-sex marriage is not considered illegal unless it involves intercourse with a

person under 16 (sexual assault). The traditions of this profession invoke the highest standard of

conduct and fairness in pursuit of truth and justice and the good Government of Canada.

As a result of this professional issue, Law Societies of several provinces in Canada – namely Ontario and

Nova Scotia – have voted to Ban graduates of the law school from practicing in those Provinces. A

lawyer in Ontario has started a law suit lawsuit alleging the BC Government’s decision to allow the

school to grant degrees was unconstitutional. The University has launched its own lawsuits in Ontario

1 Note: There are no other graduates, to my knowledge, at Trinity Western University who have been challenged

or prohibited from entering the profession upon conclusion of their post-secondary studies.

Page 7: Ideology in Academia

6

and Nova Scotia to challenge the application that may come to its Law Society for membership, which

is required in order to perform duties as a lawyer in that Province. (Keller, 2014)

On the other hand, The Law Society of British Columbia has voted to accredit the graduates of the Law

School should they apply to the British Columbia Bar for accreditation. This begs the question: what is

different about British Columbia Law Society over the Law Societies of Ontario and Nova Scotia? It may

be the differences in the wording of their governing legislation, or it may be a third ideological stance

that is a combination of the two - that is something like “all persons are free to waive or defend their

Charter rights from time to time as it benefits that person, and no person shall be summarily judged on

a third party’s opinion as to the effects of that Charter defence or waiver”.

Absent the unknown BC Law Society reasoning which may also be ideological, the main positions in

conflict are: those of the private, Christian University, those of the legal doctrines of Constitutional

freedoms in Canada, and ideologies regarding practice styles, oaths and traditions of conduct of the

legal professionals in certain provinces in Canada.

Facts

Religious ideological premises are protected under the Canadian Charter of Rights and Freedoms,

which forms part of the Canadian Constitution Act, 1867 to 1982 which is part of the Constitution Act

(Canada) the UK legislation acknowledging the sovereignty of the Dominion of Canada. This “trinity” of

legislation is collectively referred to as the “Constitution Act 1847 to 1982” (Constitution Act).

Excerpts from the Constitution Acts are set out below:

Page 8: Ideology in Academia

7

“51(1) The Constitution of Canada is the supreme law of Canada and any law that is

inconsistent with the provision of the Constitution is, to the extent of the inconsistency, of no

force or effect”.

PART I

CANADIAN CHARTER OF RIGHTS AND FREEDOMS

Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law*:

Guarantee of Rights and Freedoms

Rights and

freedoms in

Canada

1. The Canadian Charter of Rights and Freedoms guarantees the rights and

freedoms set out in it subject only to such reasonable limits prescribed by

law as can be demonstrably justified in a free and democratic society*.

Fundamental Freedoms

Fundamental

freedoms

2. Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion;

(b) freedom of thought, belief, opinion and

expression, including freedom of the press and

other media of communication;

(c) freedom of peaceful assembly; and

(d) freedom of association.

(Constitution Act, 1982)

* emphasis added

Students of Trinity Western University

The Charter rights above relate to individual freedoms, so would apply to the rights of the students

attending the University. The ideological factors that are causing such a stir are set out in a student

handbook, which the student is expected to follow. The handbook states the student could be subject

to expulsion should they contravene the policy requirements set out therein. The Law School is

scheduled to have its first cohort in 2016, therefore there is no evidence as to whether the University

would actually expel a student in contravention of the Code. Other Faculty information is not available

on this same topic.

Page 9: Ideology in Academia

8

Graduated Law Students as Practicing Lawyers

The requirements of fitness for a lawyer under the Legal Profession Act of that province (Legal

Profession Act) states the following criteria for a lawyer to be admitted to practice as a lawyer in the

province of Nova Scotia:

(g) "call to the Bar" means the admission of a person to membership in the Society as a lawyer;

(z) "lawyer" means a person who has been called to the Bar in the Province or a foreign

jurisdiction and who is eligible to carry on the practice of law in accordance with this Act and

the regulations and includes a barrister, a barrister-at-law, a barrister of the Supreme Court, a solicitor of the Supreme Court and a member of the Bar, an attorney-at-law and an avocat or notaire;

(ga) "capacity" means a member's ability to practise law with reasonable skill and judgement that is not substantially impaired by a physical, mental or emotional condition, disorder or addiction;

There are no similar definitions of capacity in the British Columbia Legal Profession Act (Legal

Profession Act), however the British Columbia Act gives us some similar, less precise views on who a

lawyer is and how they should be doing their job, as well as a useful definition of the practice of law,

as follows:

"conduct unbecoming a lawyer" includes a matter, conduct or thing that is considered, in the judgment of the benchers, a panel or a review board,

(a) to be contrary to the best interest of the public or of the legal profession, or

(b) to harm the standing of the legal profession;

"disbar" means to declare that a lawyer or former lawyer is unsuitable to practise law and to terminate the lawyer's membership in the society;

"lawyer" means a member of the society, and

(a) in Part 2, Division 1, includes a member of the governing body of the

legal profession in another province or territory of Canada who is

authorized to practise law in that province or territory,

(b) in Parts 4 to 6 and 10 includes a former member of the society, and

(c) in Part 10 includes an articled student;

"practice of law" includes

(a) appearing as counsel or advocate,

(b) drawing, revising or settling

(i) a petition, memorandum, notice of articles or articles under

the Business Corporations Act, or an application, statement,

Page 10: Ideology in Academia

9

affidavit, minute, resolution, bylaw or other document relating to

the incorporation, registration, organization, reorganization, dissolution or winding up of a corporate body,

(ii) a document for use in a proceeding, judicial or extrajudicial,

(iii) a will, deed of settlement, trust deed, power of attorney or a document relating to a probate or a grant of administration or the estate of a deceased person,

(iv) a document relating in any way to a proceeding under a statute of Canada or British Columbia, or

(v) an instrument relating to real or personal estate that is

intended, permitted or required to be registered, recorded or filed in a registry or other public office,

(c) doing an act or negotiating in any way for the settlement of, or settling, a claim or demand for damages,

(d) agreeing to place at the disposal of another person the services of a lawyer,

(e) giving legal advice,

(f) making an offer to do anything referred to in paragraphs (a) to (e), and

(g) making a representation by a person that he or she is qualified or entitled to do anything referred to in paragraphs (a) to (e),

but does not include

(h) any of those acts if performed by a person who is not a lawyer and not for or in the expectation of a fee, gain or reward, direct or indirect,

from the person for whom the acts are performed,

(i) the drawing, revising or settling of an instrument by a public officer in the course of the officer's duty,

(j) the lawful practice of a notary public,

(k) the usual business carried on by an insurance adjuster who is licensed under Division 2 of Part 6 of the Financial Institutions Act, or

(l) agreeing to do something referred to in paragraph (d), if the

agreement is made under a prepaid legal services plan or other liability insurance program;

"practising lawyer" means a member in good standing who holds or is entitled to hold a practising certificate;

Advocates of the Law

The Law Societies have the sovereign power to create rules for membership and revise those rules for

membership, as their constituency sees fit.

Page 11: Ideology in Academia

10

There is a tradition in Canada that once lawyers engage in several stages of mandatory education,

training and certification, they qualify for membership in a Law Society (law school, articling training)

and that tradition provides that the fully educated law student must be accepted as a member in a

Provincial Law Society before being permitted to practice law within the Province.

The Law Society acts as the regulatory body for conduct and discipline to the profession, and it

arranges professional associations for its membership such as reduced rates on legal practice insurance,

mailing lists for other professional affiliates such as the Canadian Bar Association, and a group of wise

practitioners referred to as “Benchers” who oversee the conduct of the profession in the particular

Province.

Analysis

As we can see from the comparison between “Membership” requirements in the Provincial Law

Societies, it is the ideological beliefs of those professional governing bodies regulatory entities that are

coming into play. The gap between practices between the British Columbia and Nova Scotia Law

Societies indicates the disparity between the practices in various provinces, and stokes the fire for

examination of the treatment of this issue as ideological amongst the advocates of the law.

In order to come to a conclusion as to the root cause of the ideological conflict in this case between

the legal practitioners and the University’s Law Program, it was necessary to review the foundations of

law both in the actual context, because law suits are being brought by the conflicting secular groups to

resolve the issue that are directly related to the interpretation and practice of law.

Interpreting the Law

A brief overview of the legal concepts relevant to this case follows to set the framework for the full

Page 12: Ideology in Academia

11

analysis of the facts.

In his book Legal Philosophies (Harris, 1997) the University of Oxford Professor of Law J.W. Harris

explains the legal philosophies which transcend all other aspects of law. The following relevant

definitions and concepts emerge:

Natural Law

Assumes a correlation between what is “good” and “what comes naturally” – parental affection,

heterosexual love, support for aged kin and comradely interdependence are natural and therefore

good. That which ignores or distorts human nature is bad. Historically, lawyers have resorted to

“naturalistic” arguments when the authority (precedent case law) does not provide answers. In

(Corbett v. Corbett, [1971]) the judge declared a marriage a nullity because there was a sex change for

one of the parties. This may be the origin of the legal doctrine that has caused so much controversy

over gay marriage – it states “Since marriage is essentially a relationship between man and woman, the

validity of the marriage in this case depends, in my judgment, upon whether the respondent is or is not

a woman…”.

However, Cicero in 1st Century (BC) provided the following more clear definition: “True law is right

reason in agreement with Nature; it is of universal application unchanging and everlasting; it summons

to duty by its commands and averts from wrong-doing by its prohibitions. … We cannot be freed from

its obligations by Senate or People, and we need not look outside ourselves for an expounder or

interpreter of it. And there will not be different laws at Rome and at Athens, now or in the future, but

one eternal and unchangeable law will be valid for all nations and for all times, and there will be one

master and one ruler, that is, God, over us all, for He is the author of this law, is promulgator, and its

enforcing judge.” This was eventually prayed in aid by the Christian Church and was referenced in the

New Testament. (p.7) This may have been the beginnings of recognition of religious law.

Page 13: Ideology in Academia

12

A useful quote from Dominican jurist St. Thomas Aquinas “Thus all humanly enacted laws are in accord

with reason to the extent that they derive from the natural law. And if a human law is at variance in

any particular with the natural law, it is no longer legal, but rather a corruptive law. … Man is bound to

obey secular Rulers to the extent that the order of justice requires. For this reason if such rules have

no just title to power, but have usurped it, or if they command things to be done which are unjust,

their subjects are not obliged to obey them; except, perhaps, in certain special cases when it is a

matter of avoiding scandal or some particular danger. (p.9)

Moral Truth

Scottish philosopher David Hume is considered to be the father of the doctrine of legal positivism, ie

that there is no rational procedure by which we can objectively know what is morally right and wrong.

In his Treaties of Human Nature (Hume, 1739), the following foundation for this argument is laid:

“In every system of morality…establishes the being of a God, or makes observation concerning

human affairs …instead of the usual copulations of is, I meet with no proposition that is not

connected with an ought, or an ought not. … it is ought not [which] expresses some new

revelation or affirmation, ‘tis necessary that it sho’ld be observ’d and explain’d; and at the

same time that a reason should be given…how this new creation can be a deduction from others

which are entirely different from it. But as authors do not commonly use this precaution, I shall

presume to recommend it to the readers; and am persuaded that this small attention wo’ld

subvert all the regular systems of morality, and let us see, that the distinction of vice and

virtue is not founded merely on the relations of objects nor is perceiv’d by reason.”

This is interpreted by Professor Harris as being an assertion about the logically necessary relationship

between propositions of natural law vs. moral truth – it deprives the natural lawyers of that most

revered of philosophic weapons, the deductive syllogism.

Syllogism: a major premise (All men are mortal) + a minor premise (Socrates is a man) +

conclusion (Socrates is mortal).”

Also helpful on this topic is Professor Harris’ description of how lawyers practice (p. 17)

Page 14: Ideology in Academia

13

“When practicing lawyers describe the law to clients, they do not give and would not be

thanked for giving, their views about what the law ought to be. They look up the books, and

from them state what the law is. As to programmes of reform, we need to know what the law is

before we can formulate ways of changing it. If, in stating the law, we base our reasoning on

inferences from morality rather than on known source materials, we may smuggle in

controversial moral claims. Better to set out the law as it is, and then go on to give our reasons

why the law is right or in what ways it should be changed. The issues of justice and or the

morally-biding nature of positive law raise questions as to which there is no specifically juristic

answers. Lawyers have nothing special to say about them; so these issues should not be

presented in the guise of supposed higher law.”

Finally, at p. 23 Professor Harris explains the difficulties when we involve human rights in political

controversies between natural and moral philosophies surrounding the law:

“…We leave aside whether there are natural rights to which all human beings at all times have been entitled. We notice that there are a number of international and supra-national treaties, and particular constitutional provisions or doctrines of case law, to live up to their commitments. The trouble is that this will not help if we are voicing attacks, on the basis of invasion of human rights, against governments which have not signed up to the particular right in question; nor, more importantly, if we are arguing for one, rather than another, interpretation of some abstract statement about human rights. How can one affirm that failure to provide some level of welfare, or mucking up the environment, or in the practice of female circumcision, violates human rights, in the teeth of someone who has not already agreed to the precise terms of one’s formulation of the right, without invoking moral truth? … Governments do not go on record as announcing, either” ‘Our subjects are mere pawns for us to manipulate as we please’; or: ‘some people are inherently inferior kinds of human being’.

Law as Commands

Positive laws are established directly or immediately by monarchs, sovereign bodies and by private

persons in pursuit of legal rights. “Every positive law is a direct command of a monarch or sovereign

number to a person or persons in a state of subjection to its author.”

Types of particular commands are “General Commands” (commands of God or divine laws; commands

of the sovereign or positive laws and commands of others or positive morality). Types of laws by

analogy, on the other hand, are Laws by a close analogy (laws of honour, public international law,

constitutional law, customary law) and laws by remote analogy (laws of physics).

Page 15: Ideology in Academia

14

Utilitarianism

“The greatest happiness of the greatest number” (Harris, 1997) at p, 40; the principle which approves

or disapproves of every action according to the tendency which it appears to have to (a) improve or (b)

impair the happiness of the party whose interest is in question.

The Economic Analysis of Law

Man will seek to maximize happiness by seeking more of that thing which makes him happy and less of

that thing that makes him less happy, per unit, or unhappy on the whole. The economic analysis of law

speaks to the most efficient solution for the greatest degree of happiness for all involved. On this

topic at p. 48 Professor Harris quotes Justice Learned Hand in United States v. Carroll Towing Company

(United States v. Carroll Towing Company, (1947)) as stating that the judicial opinions’ underlying

rationale are economic.

“Common law doctrines form a system for inducing people to behave efficiently, not only in

explicit markets, but across the whole range of social interactions. In settings in which the cost

of voluntary transactions is low, common law doctrines create incentives for people to channel

their transaction through the market… In settings in which the cost of allocating resources by

voluntary transactions is prohibitively high making the market an infeasible method of

allocating resources, the common law prices behaviour in such a way as to mimick the market.

… “When it comes to statutes he [Posner] finds, on the whole, that … although those

manning legislative and administrative agencies are themselves motivated by utility – the rules

they produce are inefficient. They are the result of pressures brought to bear by competing

interest groups, and the resulting compromises do not maximise total satisfactions. In

particular, the substitution of administrative or adjudicatory processes for low-cost market

transactions is inefficient. Posner casts a jaundiced eye on modern consumer law, whether

originating from statute or cases. If manufacturers and sellers of products cannot contract out

of liability, they will either take cost-unjustified steps to improve their products, raising the

price more than the cost of the defects to the consumer; or they will add in the cost of

anticipated damages and raise the price that way. The result will be that the total value of the

transactions to all concerned is reduced especially if the consumer is a ‘risk preferrer’, that is,

someone who would like to pay less and take the chance of defects. Fraud, incapacity and

duress are valid grounds for interfering with freedom of contract, for here the consumer is

prevented from acting as a rational maximizer; but the other more comprehensive grounds of

intervention recognized by modern law are unfortunate.”

‘If “unconscionability means that a court may nullify a contract if it considers the consideration

inadequate or the terms otherwise one-sided, the basic principle of encouraging market rather

Page 16: Ideology in Academia

15

than surrogate legal transaction where (market) transaction costs are low is badly

compromised. Economic analysis reveals no grounds other than fraud, incapacity and duress …

for allowing a party to repudiate the bargain that he made in entering into the contract.”

The University

Trinity Western University has received an A+ for the past seven years in the Canadian University

Report, a reliable survey conducted by the Globe & Mail newspaper. Trinity is the only University to

have maintained this rating for the last seven consecutive years. So, as a choice for higher education,

it would top most peoples’ lists. The utility for students going to Trinity is high.

Would students be willing to sacrifice their optional Charter rights – to agree to abstain from

homosexual and before-marriage sex in order to be at the top Canadian education source? Maybe. The

point is – that is their choice.

The Council of Canadian Law [School] Deans dislikes the University’s covenant but they do not have any

legal footing to oppose it, according to the January 19, 2013 article from Pro Bono Students Canada

(Pro Bono Students Canada, 2013).

Why does Trinity want to have a Law School in the first place? Of statements made in the Vision of

Trinity Western University’s School of Law website reflect that it has the intention of developing

servant leadership lawyers who work with NGOs and third world countries, something that is a

“different concept of professionalism than the current market promotes”. (Trinity Western University,

2014).

There, however, the possibility of a fatal flaw for the University that is in plan public view. On the

TWU “confirmation application page” of its website, it makes the following representation:

“TWU does not discriminate on the basis of race, sex or national or ethnic origin in its education programs or activities.”

Page 17: Ideology in Academia

16

The absence of the word “religion” in its non-discrimination representation brings me to conclude that

TWU knows it is discriminating based on Religion by excluding those who will not abide by or infract

the University’s Code of Conduct. By avoiding “religion” in this statement, TWU is ensuring it is able to

expel students based on a Code infraction, should it so desire.

Pros vs. Cons – Law Society Allowing Accreditation of TWU Law Grads

Page 18: Ideology in Academia

17

By allowing the accreditation of the Law School Graduates, the Law Societies preserve the Charter

rights as they now stand, eliminate the commanding nature of legal interpretation, avoid a prejudicial

view of the law graduates, take more than the economics of the situation into effect (the ideals of this

group could change the face of law to a more noble profession instead of the capitalistic business it

now is.) and create a high level of satisfaction for those stakeholders in the University.

Page 19: Ideology in Academia

18

By refusing to allow the law graduates accreditation, and a resulting judgment to this outcome, the

Law Societies and the resulting common law would in effect eliminate the constitutional items as we

know them, would create zero utilitarian benefit for the stakeholders in the University, create a biased

view of every graduate, which is in the Law Society’s best interest but certainly causes irreparable

harm to the graduate; and promotes the command of law as primary in consideration for legal

outcomes in Canada.

Trinity Western University, The Business

The analysis of Trinity Western University as a business rather than a religious place of worship brings

the most reasonable result. It eliminates the need to interpret the Charter in favour of one party or the

other, it avoids the stereotypical result that every graduate will have the controversial belief system of

the parallel religious worshipping community, it does not yet but would, if adopted, provide an

efficient answer by applying the economic analysis of law and creates limitless autonomy with respect

to business decisions and opportunities for expansion, and it is in compliance with all Canadian laws

relating to both the University as a business and the University as having Canadian individuals who

carry around with them their Constitutional, including Charter, rights.

The following analysis shows that by both parties applying a business lens to the problem, a resolution

could be reached without ideological compromise.

Page 20: Ideology in Academia

19

If both sides apply the legal philosophy of economic law, as opposed to natural law or command rule,

positive results are obtained for these two parties. The Charter rights clash is taken off the table, the

syllogism that all TWU Law Graduates are unworthy of or ineligible to be granted a Law Society

Membership is avoided, The University has the opportunity to grow its business interest on its own

terms (within legal business constraints) and all Canadian laws are complied with. In addition, as a

result of the masterful handling of the legal issues, no absurd consequence/dangerous precedent is set

Page 21: Ideology in Academia

20

regarding ideology, which could severely impact the efficacy of the Criminal Justice System in dealing

with matters in its jurisdiction regarding religious ideological defences.

Argument

With two clear pictures of what could happen and one hypothetical option, we now move onto

analyzing what should happen, and the actions required by each party to bring about that best result.

Interpretation of Legislation and Common Law in Canada

Statutory Law

The three methods of statutory interpretation are helpful for us in analyzing the interpretation of

Legislation in Canada:

Ordinary Meaning Rules

Where statutes should be interpreted in lien with the literal meaning of the words that can be

found in a dictionary or be understood by a person [fluent in the language]. This approach

concentrates on what the words actually say rather than what might have been intended by the

statute.

Purposive Approach

The emphasis is less on the exact words used in the legislation and more on the intention of the

drafters of the legislation – ie what was the problem that brought about the need for this pillar

of guidance for citizens?

Avoiding Absurd Consequences

Where legislation should not be interpreted in a manner that leads to absurd consequences;

before deciding on the interpretation of a statute [the Court] should consider consequences to

the parties of the case and consequences to other parties to whom the statue applies. The

threshold test is “reasonableness” when using this method of interpretation.

Page 22: Ideology in Academia

21

Case Law

Canada is a precedent-oriented (stare decisis) system. Referring back to Professor Harris’ guidance

(Harris, 1997), some philosophical categories do not recognize the precedent system as governing their

particular secular beliefs.

The following statutes and authorities are amongst those which are relevant to the parties involved in

the Trinity vs. various Law Societies’ issues:

The Canadian Constitution, which contains the Charter of Rights and Freedoms (Constitution

Act, 1867, 1982)

The Canadian Human Rights Act (Canadian Human Rights Act)

BC Human Rights Code (BC Human Rights Act)

The Legal Profession Acts of each affected Province, supra

Trinity Western University ats BC Teachers Federation et al (BC Teachers Federation v. Trinity

Western University et al)

Although Trinity Western University appears to agree with the right to participate in a democratic legal

system - it has already been involved in a successful legal case that was decided at the Supreme Court

of Canada – and it agrees with the Charter right of non-discrimination because it has applied this

Charter provision to bring its own challenge to what it says is discriminatory behavior of the Law

Societies in deciding now, in 2014 (denying membership to the Trinity Western law school graduates in

2020) - Trinity is an Institution relying upon individual religious freedoms Charter rights in order to

insist that its students, including but not limited to Law students, waive their Charter right to same-sex

and pre-marital sexual relations.

1. Non-obeyance of legal doctrines by certain sects in Canada - the religious premise is the fact

that “[if] a society or a country makes a law does not necessarily make that law right or

morally binding.” As Rabbi Hecht sets out in his article “Why Should Terrorists Obey Our

Criminal Code?” (Hecht, 2013), it should be noted that the statement of a criminal terrorist

that the Criminal Code was irrelevant for it had no standing as a defense argument in court – is

very relevant to the case at hand.

Page 23: Ideology in Academia

22

Rabbi Hecht’s article which states the ideologist’s non-observance of the Criminal Code of Canada had

no weight in Court, is a good argument for why Trinity Western should be found to be in contravention

of the BC Human Rights Code provision for same-sex marriage.

The underlined statement in the quote above may be the argument of the Law Societies and the

individual lawyer in Ontario – that if this ideological group’s beliefs are reaching past their individuals

who are members, and who are conducting their self freely within the Charter, to an Institution

demanding compliance of these ideologies from the general population of Canada who is free to apply

to the Trinity Western University Law School because of the terms of its accreditation under the BC

School Act and Canadian University Law School governance, this is a problem.

The constitutional monarchy of Canada has enacted laws and systems to protect its citizens from the

harm that may come from the prohibited behavior and/or to ensure Canadians have the rights to

exercise their own freedoms if they are in accordance with the law for the “peace and good

governance of Canada” (Constitution Act, 1867, 1982).

By ignoring the BC legislation that allows same-sex marriages, the Institution is crossing the line to

“ignoring the laws of the land”. While their members are free to ascribe to the beliefs, in the context

of a public University, the students should not be asked to ascribe to something that is not in

accordance with the stated laws of Canada. They should be provided the opportunity to decline to

participate in the ideology proscribed by the University – or the requirement should remain within the

handbook of the ideology in its native habitat for “worship”, not in its publically accredited University

and Law School.

2. Trinity Western University is bringing these challenges not in the context of a religious group

wanting the freedom to worship, but as an accredited Canadian University which has the

blessing of the Canadian Deans of Law School Association. They are producing a product for a

consumer. The consumer is paying for a product, and of course has the usual responsibilities to

ensure the product is well priced for the goods delivered. This is a business, an economic

Page 24: Ideology in Academia

23

entity, which is not governed by religious freedoms but rather the laws of businesses in

Canada.

By allowing Trinity to (a) discriminate against non-ascribers by forcing them to ascribe; and (b)

defending its religious freedom as a public institution and economic entity by apply individual Charter

rights of freedom is an absurd result in interpreting the legislation, and therefore the argument should

not be accepted by the Courts.

Common Law – TWU Academic Issues (Student Discrimination)

The Trinity Western v. BCTF case, supra, establishes that outside groups may decide that further

training may be required of TWU graduates should those graduates be deficient in skills required by the

profession. The BCTF case also states some background information on the general dissatisfaction by

non-Trinity critics, which is also the basis of the Law Society complaints, ie prohibition of homosexual

or pre-marital sexual activities.

Therefore, for the purposes of one or more students not passing regular Bar Admission exams because

of lack of proper training a Trinity Western University would not be considered to be an impingement

on the student’s human rights – it would mean simply that their chosen school did not meet the

standards required in the industry. This outcome is highly unlikely due to Trinity’s track record as an A+

educator for the past 7 years, however does remain a possibility.

The BCTF found that it would not be unreasonable for a student to be required to take a further year

of schooling to upgrade their deficient skills before being certified as competent by the profession’s

governing body.

Page 25: Ideology in Academia

24

Conclusion

The law TWU is applying to the public law school is the economic law, not religious law, and the

“efficiency” principle is a reasonable test for that purpose, as opposed to the “natural law” which is

the originator of the heterosexual relationship doctrine.

It is not infrequently that ideological groups attempt to “shun” or “ignore” the laws of the land in

which they are taking action – that is to state outright that they do not recognize the laws as being

binding upon them (Rabbi Hect article), and in these cases the Canadian Courts have overwhelmingly

declined to give the ignorance approach of the Defendant any weight.

Ideological Effects on Civil & Criminal Justice Systems

1. Trinity Western University must not be allowed to ignore the rights of the public consumers of

its educational product to engage in certain behaviours, including sexual behaviours which are

not only not illegal acts according to the law of the land, but are also officially stated as being

legally recognized rights of behavior.

2. To ignore the Charter rights of one group of people and ignore the same rights of another group

of people is an absurd consequence of statutorial interpretation, and must not occur.

3. The effect of a decision supporting Trinity Western’s ability to use Charter arguments to

achieve its ideological goals would have devastating effects on the Criminal Justice System. For

instance, in a case where a radical Islamist terrorist has been charged with a crime, he could

use the civil precedent established in this Trinity case to establish that the Supreme Court of

Canada, which hears both civil and criminal cases, must follow the Trinity decision in

interpreting that God’s law supercedes Constitutional Law.

Page 26: Ideology in Academia

25

Solution

A change has occurred in Trinity Western’s entity over the years. The religious group has evolved to

having its own property, educational system and has invited others to purchase its product in a public

business entity. In sum, the religious sect has branched out to include a concurrent economic entity

governed under commercial business laws, public post-secondary schooling legislation as well as the

common law and legislation of Canada. Its interests, although historically religious, are now governed

under national and provincial economic laws as well as responsibilities to a public individual in delivery

of a market product.

The result of “peace, order and good governance for Canada” is available to all parties to this

ideological conflict, if only they could both accept a secondary doctrine of legal philosophy - the

efficiency of economic law – in the circumstances of the conflict at hand.

Jan Whyte

Forensic Intelligence Analyst

May 11, 2014

Page 27: Ideology in Academia

26

Works Cited

BC Human Rights Act (RSBC 1996 c. 210).

BC Teachers Federation v. Trinity Western University et al, [2001] 1 S.C.R. 772, 2001 SCC 31.

Braha, A. (2014, April 11). Trinity Western Seeks Protection From Discrimination in Order to Promote

It. The Hook, p. 2.

Canadian Human Rights Act, RSC 1985 c. H-6.

Constitution Act, 1847 to 1982.

Constitution Act (1867, 1982).

Constitution Act, 1982 (R.S.C.).

Corbett v. Corbett, Ormerod, J. (England [1971]).

Glazov, J. (2010, June 4). Front Page Magazine. Retrieved from frontpagemag.com:

http://www.frontpgemag.com/2010/jamie-glazov/

Harris, J. (1997). Legal Philosophies. London: Butterworths.

Hecht, R. B. (2013, March 6). Huffington Post. Retrieved from www.huffintonpost.ca:

www.huffingtonpost.ca/rabbi-ben-hecht/

Hume, D. (1739). Treatise of Human Nature. Scotland.

Keller, J. (2014, May 6). Trinity Western University lauches Court Action in Three Provinces Over Its

Law School. The Vancouver Sun, p. 2.

Legal Profession Act (R.S.B.C. 1998, c. 9).

Legal Profession Act (SNS 2004, c. 28).

Pro Bono Students Canada. (2013, June 19). Op-ed: Freedom of Religion Under Fire from Canadian Law

Deans. Pro Bono Students Canada.

Trinity Western University. (2014, April 25). Retrieved from School of Law:

http://twu.ca/academics/school-of-law/

United States v. Carroll Towing Company, 159 F. 2d ((1947)).