THIS POST HAS BEEN WRITTEN BY GUEST AUTHOR DEREK B.M. ROSS, CCCC DIRECTOR OF LEGAL AFFAIRS,
We don’t leave human rights to be determined by popular opinion or by a majority vote. We can’t have a tyranny of the majority. That’s why we need courts. That’s why we have a Constitution.
My lawyer colleagues will recognize these words, or a variation of them, from the earliest days of their legal education. They were drilled into those of us who walked the halls of Canada’s law schools. Fierce opposition to the “tyranny of the majority” was an axiomatic concept in our law classes. It was a noble concept shared by all Canadians – or so we were told – but we in the legal profession had an especially important role in protecting it, as the so-called Guardians of the Rule of Law. It was a romantic ideal, but one many cherished – including me.
Now I’m not so sure.
Don’t get me wrong. I still want to believe that our profession respects the rule of law, even though we might not personally agree with its application in every instance. I still want to believe that our profession plays an important – even an imperative – role in protecting the civil liberties of those who are disliked, unpopular, or disenfranchised.
But I’m beginning to question whether it truly does.
To put my comments in context, most people are by now aware of Trinity Western University (TWU) and the controversy surrounding its proposed new law school. The controversy is centred on its Community Covenant, which all students and staff are required to sign, in which they agree not to engage in sexual activity outside of marriage, defined as being exclusively between one man and one woman.
TWU’s opponents have asserted that this faith-based covenant is inherently discriminatory, so much so that anyone who ascribes to it must necessarily be deemed unfit to practice law. This bald assertion involves an unwarranted, illogical, and unfair conclusion but has apparently been accepted by the Law Societies of Nova Scotia and Ontario, which have since denied accreditation of TWU’s Law School (even though it had already been accredited by the Federation of Law Societies and the B.C. Ministry of Education as meeting all necessary academic requirements). These decisions were all the more extraordinary considering that human rights legislation and the Charter specifically protect TWU’s Community Covenant, as the Supreme Court of Canada clearly decided just 13 years ago in the context of accrediting TWU’s education program.
The Law Society of British Columbia (LSBC), upon reviewing TWU’s proposed law school program and its Community Covenant, initially respected that Supreme Court decision and concluded that, notwithstanding how its individual leaders personally felt about the Covenant, the LSBC’s ultimate responsibility was to uphold the rule of law. The LSBC determined that the law clearly provided space for TWU’s Law School and that its graduates should be permitted to practice law in British Columbia. This was the right decision, and one that restored confidence in the ideals of my early legal education. This confidence, however, was short-lived.
Almost immediately, a group of lawyers – who clearly did not share the LSBC’s sentiment – called for a Special General Meeting of all lawyers in the province to challenge its decision. The vote in that Special General Meeting, which was non-binding, was successful, with the vast majority of those who voted expressing disagreement with the LSBC’s decision. The LSBC then met again, and despite the fact that nothing had changed since its initial decision that the LSBC was required by law to accredit TWU, decided to place the issue of accreditation in the hands of its members to decide by popular vote – this time, a binding one.
One does not have to look very long or hard to discover that TWU’s views are not shared by everyone, and certainly not by the vast majority. But isn’t that precisely why we should be willing to protect their views and practices? Isn’t that exactly what we lawyers signed up for: advocating for fair treatment for all, even when we may not personally agree?
In the 13 years that have passed since the 2001 TWU decision, hundreds of teachers have graduated from TWU’s education program. To my knowledge, not a shred of evidence has been presented to suggest that these graduates have exhibited any discriminatory behaviours or attitudes. One wonders how many of those so vehemently opposed to TWU’s proposed law school have ever stepped foot on its campus, talked to any of its staff or students, or met one of its graduates. Perhaps if they did, they would come to view members of the TWU community as reasonable, fellow human beings of goodwill, who would richly contribute to our profession, rather than “the others” who are to be feared and ostracised.
I understand why one may disagree with TWU’s Community Covenant on a personal level. What I have difficulty understanding is why our liberal ideals of tolerating opposing views, accepting unpopular expressions and values, promoting religious diversity, and protecting minority rights, no longer seem to apply.
I have difficulty understanding how we can flatly ignore the rule of law and completely disregard Supreme Court precedent and human rights legislation directly on point – simply because we do not like or agree with them.
I especially have difficulty understanding how the LSBC – the very body charged with maintaining public confidence in the legal profession – can (rightly) conclude that the rule of law demands protection of TWU’s law school on the one hand, yet on the other hand can shirk its responsibility by deflecting a question of fundamental human rights to its members to be decided by popular vote.
Nevertheless, here we are, facing a referendum, and lawyers in British Columbia have a very important decision to make. Will Canada remain a place where a divergence of ideas and religious expression are tolerated? Will it remain a place where the rule of law is upheld?
Voting to accredit TWU’s law school in this referendum will send a vital message, but that message is not that the legal profession endorses TWU’s religious views and practices. The message, rather, is this: lawyers in Canada remain committed to opposing the tyranny of the majority and to upholding the rule of law.
I don’t know about you, but that’s a message I’d like to send.