ideology in academia
TRANSCRIPT
TRINITY WESTERN
UNIVERSITY LAW SCHOOL Ideological Issues in Academia
Jan Whyte A00815823 [email protected]
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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
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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
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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
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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).
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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.
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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:
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“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.
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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,
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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.
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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
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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.
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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)
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“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).
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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
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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.”
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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
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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.
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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.
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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
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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.
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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.
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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
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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.
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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.
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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
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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)).