A quarter century ago, I sat in an official examiner’s chambers across Jim Flaherty (still a senior motor vehicle litigation lawyer) as he questioned my client, the surviving mother of an accident victim who had perished at the hands of a drunk driver. He hadn’t exactly over-prepared for the encounter. There were none of the usual probing questions. He entered the room, offered my client his condolences, asked some standard discovery questions, and left. In retrospect, he knew what I had advised my client he should know: that it did not serve his insurer client’s interests to be on the wrong side of justice.
Last year, those who witnessed Flaherty’s response to Toronto Mayor Rob Ford’s disgrace saw a Ford family friend, federal politician and former provincial attorney general grapple with the right thing to do and say when asked to comment. “At the end of the day,” Flaherty said, “he [Ford] has to make his own decision about what he ought to do.” In hindsight, this terse statement was the most measured and meaningful. Ford’s reported response to Flaherty proved a rare moment of genuine contrition from the mayor.
As reported in the Globe and Mail, Justice Colin Westman has joined a chorus of Canadian judges refusing to apply the law, as a protest against the federal government’s criminal sentencing legislation. Whatever the merits of their political views on the subject, the rebellious judges threaten a constitutional showdown which they will not, and should not win. As lawyers and law students, it is important for us to understand why judicial rebellion is not judicial independence. Judicial rebellion harms judicial independence. To see this, one has to understand the source of judicial power.
We don’t read the Bible any more. Perhaps it is the association with early starts on Sundays that puts many people off. We have a phobia about the Bible, and perhaps much of religion altogether. This is a shame. Apart from being the most important text in human history, it contains passages of unrivaled beauty and evidence that mankind strives to understand the meaning of existence itself.
As I heard the various arguments in the debate over Trinity Western University’s (TWU) application to have a law degree accredited by Canadian law societies, the focus of the discussion was on its Community Covenant. It is an agreement to be signed by all new students. Much of it is motherhood and reflects the desire of a school founded by a Christian order to promote a particular learning environment. During the debate, we have heard the voices saying it is discriminatory against the LGBTQ community, that it is not discriminatory, that it is discriminatory but justified, that it is discriminatory but exempt from human rights legislation, and perhaps several other permutations of this discussion. I have set out my analysis of the issue in my lengthy Submission to LSUC re TWU Matter. Personally, as one who attended a faith-based university for my undergraduate studies, I believe a TWU law school would have a lot to offer the legal academy. It is not the law program, but rather the admissions policy, that is the problem.
Read it like you would, if a client asked you to read it, including the fine print
The discussion thus far has avoided reading the actual document for what the words say. The Community Covenant is not a unilateral statement of faith, as TWU is perfectly entitled to state. It is bilateral between the school and the student. It is a contract of adhesion which states:
In making this pledge, members enter into a contractual agreement and a relational bond.
It is a legal agreement, and so the failure to read it and to understand what it says, including the references and footnotes, has been our gravest error thus far. Those who profess not to understand the objections made to the Community Covenant argue that Christian lawyers who follow the teachings in the Bible can and do represent those who do not follow those teachings.
The Law Times reported that an Ontario Superior Court Justice is facing a complaint by an oil sands advocacy group to the Canadian Judicial Council for his role in a public mock trial of environmentalist David Suzuki at the Royal Ontario Museum this past November 6. The basis for the complaint is that the judge’s participation in a political event compromised his judicial impartiality. Another judge of the same court had originally agreed to participate, but later withdrew in the face of a similar objection.
Judges have long been criticized for “judicial activism,” especially since the advent of the Canadian Charter of Rights and Freedoms. Whatever one’s view of this subject, it is important to differentiate the judge’s role in representing community values, when interpreting law, from use of the judicial office to support a personal view on a political issue. Judicial power resides in the authority to state what the law is and the limits of how the law can be applied. The easily-understood reason for discouraging judges from partisan politics is that interference with constitutionally valid legislative and executive power generates a perception of bias. It is for this reason that courts, even when they strike down laws or set aside administrative actions as ultra vires, do not formulate amendments or suggest more appropriate courses of actions. A Canadian judge taking the stage in a political event broadcasts a personal opinion outside the context of a properly constituted, pleaded and justiciable dispute. A perception of bias, in turn, diminishes the rule-stating authority which allows the judiciary to function.
The following anecdote illustrates a message that is more difficult to explain: why judges’ self-restraint is also important to lawyers’ function as clients’ trusted advisers and representatives.
What would Caesar Wright have said? The question ringed in my ears after I walked back to my office this week from Osgoode Hall. It was there that the dean of all Canadian law deans started his career and then departed, in order to found the first modern Canadian law school at the University of Toronto. I had just left one of those hour-long after-lunch discussions in the lawyers’ dining room which could have lasted all afternoon. Our topic: the jurisdiction of Ontario’s Law Society to consider the application of Trinity Western University’s (TWU) application for accreditation of a law school. The more the ghost of Wright haunted my thoughts, I reflected on the wider implication of the TWU Community Covenant beyond the debate over its discriminatory admissions policy. Wright’s reason for leaving Osgoode Hall remains at the core of the controversy over TWU. He would have said: No, this is not the way to start a law school.
A decade from now, after the dust of court challenges has settled, a Canadian law society president near you may be calling to the bar a graduate from the Trinity Western University Faculty of Law (TWU). TWU is a faith-based private college requiring its students to sign a “Community Covenant Agreement” banning “sexual intimacy that violates the sacredness of marriage between a man and a woman.” Considered a thinly veiled exclusion of members of the LGBT community, the document’s previously litigated antecedent required students to refrain from “biblically condemned” conduct, including “homosexual behaviour.” The prospect of law societies conferring licences on TWU graduates frightens and angers many in the legal community.
The outcry represents a broadly-based—although not unanimous—negative reaction to TWU’s application to the Federation of Law Societies of Canada (FLSC) to have its law program accredited for students applying to become lawyers. The TWU contract offends the constitutional and quasi-constitutional Canadian values expressed in our Charter of Rights and Freedoms, Bill of Rights and human rights codes, but those statutes do not reach the academic policies of a private school. The TWU application therefore challenges the resolve of the Canadian bar as the legal sector stumbles to catch up with the rest of society on the diversity file. (Lawyers are far away from being able to claim a moral high ground.)
Not all lawyers oppose the TWU bid for a law school. The dissenting camp falls into two general groups.
The first group express a desire to absent the bar from the debate. They preface their comments saying they disagree with the discriminatory conduct. Their message is that bar regulators are ultra vires of their statutory mandates to refuse to admit TWU graduates to the bar if the graduates (1) are competent to practice law and (2) do not violate the human rights of clients and others once they enter legal practice.
The second group of dissenters argue that a significant sector of higher education in Canada has been founded by religious orders. They say TWU is no different, say, from Trinity College, the Anglican school founded by Bishop Strachan where I studied for my B.A. and next to which I attended law school at the University of Toronto. (Strachan, a Loyalist believer in political influence through education rooted in Church of England doctrine, founded Canada’s other university named Trinity, in 1851, after King’s College was secularized as the University of Toronto.)
What is still missing from the discourse, especially on the side of the majority reaction to TWU’s application for accreditation, is a jurisprudential response to the grounds the university has raised. This is a problem for the majority because lawyers and law societies must uphold the law. If the bar is to debate the issue constructively, its members must do so qua jurists, not as an ad hoc protest party.