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Trinity Western University Factum

I finally read the document. Here are my thoughts.

Lie number one in the very first paragraph:

The respondent Law Society of Upper Canada (LSUC) decided that it would not accept TWU law school graduates as licencees.

That is not the case. The society refuses to accredit TWU’s law school. Law graduates would be able to approach the society on an individual basis and be accepted on their personal merits. Read more... )
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Finally, it has been announced that the Supreme Court of Canada will hear the appeals concerning whether law societies can be forced to accredit Trinity Western University's potential law school despite the university's discriminatory practices. I will be reading as many court documents as I can find. I imagine there will be a ton of intervenors.

The nature of the case is interesting. The BC law society lost at both court levels while the Ontario law society won. They operate with different statutes. The BC law society says the university's practices violate the equality rights of a bunch of different people, while the Ontario society focused only on members of the LGBTQ community. I anticipate that the Supreme Court decision will be very long.


Nov. 1st, 2016 06:02 pm
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Turns out that my problems with Windows 10 were actually a result of the computer hard drive dying. The computer is eight months old. I took it back to the store and they told me it had to be sent to the manufacturer. I specifically asked when I bought it whether it was serviced in the store, and I was told it was. So I was ticked, both by the defective product and by the lie. The service guy said it could take up to twenty-five days, which I rounded up to 30, but I actually got it within the week. They stripped out software programs which meant I had to download stuff, unless I wanted to pay them to do it. Also, it's extremely slow. I really wish the guy from whom I bought my last computer hadn't retired. He was great.

The pest control people have been here twice and I still have a rat in the ceiling. The first time the guy came, he put bait in a bait box that was already there, so this place obviously has rat issues, though there weren't any there last autumn. When he came back, he found that the rat had pretty much eaten not just the bait but the box, which he said he'd never seen before. Usually I only get "I've never seen that before" when dealing with technology. Anyway, last Friday he put in another box with more bait and the rat is still there. I asked him about the noisemaker that is supposed to drive off rats and he said those tend to drive people crazy. I may get one anyway if this goes on too long.

I'm still watching the Ark Encounter sage - boat-shaped building in Kentucky described as a replica of Noah's Ark - because it's just so sad. The guy who built it keeps making up numbers of visitors - 400,000 in less than three months, for example - while even the people who like it post photos with almost no people in them, and the guy keeps reusing old photos to support his new numbers.

The Court of Appeal of British Columbia has upheld an earlier decision stating that the law society of British Columbia couldn't refuse to accredit Trinity Western University's law school despite that university's discrimination against members of the LGBTQ community. Bah, I'm disheartened by this.
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The Nova Scotia Barristers' Society has decided not to appeal the ruling against them to the Supreme Court of Canada. I'm kind of disappointed but not really surprised. They're now facing costs for the first two court decisions, and it's not like they've got money to throw around. Nova Scotia is tiny. Besides, it's likely that Ontario's case will go to the Supreme Court, and that will probably decide the thing for the whole country. No reason for Nova Scotia to go through the hassle and cost. There's the principle of the thing, of course, the Trinity covenant didn't stop being discriminatory, but money is finite and if Ontario is going to fight the battle, which, being the largest law society in the country, it can more easily afford, Nova Scotia can sit back like almost all of the other parts of the country and watch.
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I am disappointed to report that the Nova Scotia Court of Appeal has upheld the earlier court decision denying the N.S. Barristers' Society the right to withhold accreditation from Trinity Western University's future law school, should it ever build one. That's not too surprising, since appeal courts are more likely to uphold than reverse the decisions of the courts of first instance, but it's no less heartbreaking for being predictable.

What was unpredictable, at least to me, was the rather baffling approach the Court of Appeal took to the debate. First, the judges seem to be under the impression that the barristers' society was applying the N.S. human rights code to the school, which is in B.C. If the society were doing that, it would, of course, be wrong. The law society doesn't have the right to enforce any human rights code on anything, and certainly not on anything in another province. The society hasn't claimed they were doing that and hasn't sought to do that. Their argument, to my recollection, has always been that they could not accredit the law school because it would mean they, the law society, would be violating N.S. human rights code, which they are bound by law to honour. By supporting a form of discrimination that is banned under the N.S. human rights code - accrediting a school is an action on the part of the society, not inaction, such as just refusing to get involved - the N.S. Barristers' Society would be violating the code. In my opinion, the court completely twisted around the society's argument in order to be able to dismiss it.

In addition, the judges flat out refused to consider the Charter issues. My jaw literally dropped when I read that. Absolutely everyone, pro and anti-accreditation, has argued about the clash between religious freedom and the right to equal treatment. It's basically the core of the whole argument. But, "We do not comment on the Charter issues." WTF?

Here's a link to the court decision. Warning: Court of Appeal decisions tend to be a boring read unless you're really interested in the subject.
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I am delighted to report that the Ontario Court of Appeal has upheld the Law Society of Upper Canada's (Ontario) right to deny accreditation to a religious law school that demands all students, staff, and faculty sign a covenant stating they will not engage in sexual activity outside of heterosexual marriage. Now we just have to wait for the decisions from Nova Scotia and British Columbia and then the whole thing will go to the Supreme Court. Note: The law school doesn't exist yet. The university has stated it won't build one if it can't get accreditation from all of the provinces.

The decision:
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I am very sad to announce that the B.C. court quashed the law society's decision to refuse to accredit Trinity's future law school, restoring the society's earlier decision to accredit it. (Short version of the story: the society said yes, a bunch of members of the society who hadn't been aware of what was going on freaked, and then there was a second vote that was overwhelmingly against accrediting the school. It was the second decision that was quashed.)

I'm too depressed to go into it, aside to note my shock that the judge doesn't think that recognising the right of gay people to get married represents a fundamental shift of human rights in this country. I wonder if that astounding statement is enough to hang an appeal on. Anyway, here's the decision:
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But of a different sort. Still waiting on the decision of the BC court case. What's taking that judge so long to release it?

No, this is about the school having invited one of those sort who support conversion therapy for gay people to participate in a program called the Hearts & Minds speaker series, the theme of which this year is “growing in the knowledge and love of God.” Here's a link to the article.

Mark Yarhouse performed a study. I think this is all you need to read about it's credibility:

The study was funded by Exodus International, which had been called the world’s largest so-called “ex-gay” ministry before it shuttered in 2013.

He challenges the view that sexual orientation can't be changed and claims that conversion therapy doesn't, on average, cause harm.

The name of the report is A Longitudinal Study of Attempted Religiously Mediated Sexual Orientation Change.

This study, which was performed in the 1990s, is ridiculous.

First of all, the sample size was tiny. They started with 98 people and by the end, seven years, they had 63. A bunch dropped out of the study for a variety of reasons.

These were all people who were already connected to Exodus International. These were LGBT people who already belonged to an organization that was training them to believe their sexual orientation was wrong. Or, to quote the report:

"This study focused on individuals who were troubled by their sexual orientation and participated in specific Exodus-affiliated ministries to achieve 'freedom from homosexuality through the power of Jesus Christ'"

These were all people who were already trying to change their sexual orientation.

Here's another bit:

"Most groups are guided by some sort of generalized hypothesis that homosexual orientation is the result of emotional woundedness combined with spiritual confusion that together can be resolved through prayer for healing combined with generalized growth in religious maturity as understood in the Christian tradition and with in-depth experience with nonsexualized, healthy relationships that foster interpersonal and spiritual maturity."

And regarding the sample, the report said this:

"The study did not address competing explanations as proposed by the Task Force because it had an insufficient sample size to make valid inferences."

I don't know how much I can copy without violating copyright, so I'll just point out a few choice bits that really stood out for me.

No part of the study involved exposing the participants - who were all 21 years old and older - to sexually explicit material because that offended their morals. I would think sexually explicit material would be necessary for this sort of study. I think having the entire sample comprised of people who think sexually explicit material is immoral might represent a problem. What do I know?

They didn't use psychophysiological measures to assess sexual orientation because it was impractical, the sexually explicit material is a part of it, and because they were challenging the reliability of those methods. But wouldn't you need to use those methods even to challenge them? Use those methods, then other methods, find the difference?

They admit in the report that there were a bunch of problems with the methodology they did use.

What they used to try to change these people were a variety of conversation therapies and religious stuff.

The list of outcomes was fun to read, I tell you. "Success" included conversion or chastity - the latter defined as:

Participants who reported change to be successful and who reported homosexual attraction to be present only incidentally or in a way that does not seem to bring about distress, allowing them to live contentedly without overt sexual activity.

You know, they were still sort of gay but didn't act gay, so that was ok.

"Failure" included confusion or embracing their gay identity.

The language they use about whether there was more success than failure, and whether there was any harm done by the attempt, is really vague and full of qualifiers, but ultimately they decide change can happen in some and that the attempt usually does no harm.

TWU students have expressed concern about having this guy come to speak about his 20 year old study. This is what the school has to say:

"Mr. Loeppky said Trinity Western invited Dr. Yarhouse because it felt he is a 'well-respected scholar' who would help advance the conversation on gender and sexuality issues.

'TWU is aware that some of Yarhouse’s work has been misunderstood and misrepresented,' Mr. Loeppky said. 'To help alleviate this, we are providing the TWU community with an opportunity to ask questions and dialogue with Dr. Yarhouse during an extended Q&A session on campus.'"

I just hope the students are given a genuine opportunity to point out the horrific flaws in this study. I kinda wish he was coming to our university. We wouldn't have to point out the horrific bigotry in order to tear the paper apart.

Here's a Guardian article that has people with more expertise than me pointing out a bunch of flaws with the study.
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This week involves the court action in which TWU is seeking to have the BC law society's decision to deny accreditation overturned. They're making all of the same arguments as they did the last two times, but this particular quote was hilarious.

“We can’t regulate the beliefs of people.”

You know, that school that will kick you out if you don't live according to their beliefs.

Hey, TWU, you might have more luck if you kept the flaming hypocrisy out of your legal arguments.
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I've finally read the petition and response of TWU and the Law Society of British Columbia. Fun read.

The BC law society made an excellent point that the others haven't.

Some back story: A few years ago, the BC government gave TWU conditional permission to create their law school. One of the conditions was that TWU have their school together by September of 2016. Once law socities began denying accreditation and TWU launched lawsuits, the government minister reversed course, saying that it was looking unlikely that TWU could get its school started by September of 2016, and the government was going to wait to see what the courts decided.

I think that's a lame argument. At that time, it was still possible that TWU could start a law school by the deadline. Perhaps not now. I think the minister was beginning to suspect he'd taken the wrong side.

Before the reversal, a gay man who planned to go to law school sued the BC government for granting permission, citing discrimination. (ETA: His petition was dismissed because, as TWU no longer has permission to open a law school, the court considered this petition moot.)

The BC law society's response starts with: "So you want us to change our minds about accrediting a law school you currently don't even have permission to start. You know that's stupid, right?"

moot: subject to debate, dispute, or uncertainty, and typically not admitting of a final decision

The law society is suggesting that the two arguments, government and law society, should be merged and decided together. I don't know how that would work, since they involve very different arguments. I think the government should have to make their decision first.

Read more )

TWU's petition:

Law Society's amended response:
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I am delighted to report that a three-judge Ontario court upheld the decision of the Law Society of Upper Canada to refuse accreditation of the law school TWU wants to start. I'm almost a week late with this, because I haven't been checking on it as frequently as I did in the past.

Short summary: TWU requires its students and faculty to sign a covenant stating they won't engage in a lot of things, including sex unless you're in a heterosexual marriage. As in, if you're in a homosexual marriage, you're not allowed to have sex. The covenant encourages spying and snitching, and you can get expelled if you're found in violation of the covenant. The law society refused to give them accreditation, meaning it won't recognise the degree in general and therefore those students won't qualify for the bar in Ontario. Students would have the option of applying and being granted permission individually. The law society has a duty to act in the public good and felt actively condoning discrimination violated that public good. TWU claimed violation of freedom of religion, freedom of expression, and freedom of association and sought a judicial review. The court disagreed on all counts.

The court decision is a fun read. The language is all correct and professional, of course, but there's the heavy air of "your arguments are ridiculous," throughout the whole thing.

Read more )
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In this post, I address the Society's response to the application, and then TWU's reply to the response.

Response from the Nova Scotia Barristers’ Society

Obviously, I agree with them, and my choices reflect that.

Basically, the Society says TWU mischaracterised what the Society is doing so their argument doesn’t make sense.

The Society did not violate future TWU students’ Charter rights. While the Charter does protect freedom of religion and association it does not require the Society to validate or support conduct that discriminates against others. [para. 16]

This case is about recognizing that TWU, in seeking regulatory approval from the Society, has left the purely private sphere where some discrimination may be permitted on religious grounds, and has entered the public domain of statutorily regulated professions where different rules apply and different obligations exist. [para. 19]

This case is about whether the Society, as the public interest regulator of the legal profession in Nova Scotia, with a mandate to promote equity and diversity, should endorse a law school’s admission and enrolment policy that requires LGB students to denounce their constitutionally protected sexual orientation, in exchange for a law degree. [para. 20]

I like this one just because it’s snarky:

The Society accepts that Evangelical Christians are entitled to hold beliefs which others may characterize as homophobic and the Society does not question the sincerity of those beliefs. [para. 24.]

Read more )
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So the application to force Nova Scotia to give accreditation to TWU is over, and now we’re just waiting for the judge to release a decision. The following is my review of TWU’s application.

You can find the application here:

I’m just picking out some clauses that I think are particularly stupid or egregious. TWU’s exact words will be in italics, and sometimes I just summarise or respond to things without providing a quote.

NSBS has no authority to discriminate against students who attend a particular law school. [para. 1]

NSBS does have the authority to discriminate against students who attend a particular law school. That’s what the whole accreditation requirement is about. If no accreditation were required, any university could open a law school and the societies would have to give a licence to anyone who has a degree. They don’t.

Allowing people in BC to voluntarily agree not to engage in sexual intimacy outside of an opposite sex marriage does not limit the right of people in Nova Scotia who wish to engage in sexual intimacy on some other basis. [para. 2]

TWU keeps throwing the word “voluntary” when it comes to its covenant. “You keep using that word ….” Signing the covenant isn’t voluntary. Students and faculty have to sign it or the doors are barred to them. TWU is grasping by trying to link the fact that people don’t have to go or work at their school to some twisted notion of “voluntary,” because those defending TWU think the rest of us is idiots.

I haven’t come across anyone saying that the bigotry of TWU will result in gay people in Nova Scotia not having sex with their partners. What they are saying is that gay people in Nova Scotia can’t feel safe with a law society that supports bigotry by granting accreditation to a law school that advocates bigotry. And neither can the rest of us.

Read more )
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What is it with all of these right-wing bloggers claiming that the law societies are telling TWU it can't have a law school? Do they think their followers can't understand the difference between a degree and accreditation?

Well, they would know better than I, I guess.
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The law society of British Columbia is having a special meeting tonight. Earlier, the benchers voted to give TWU accreditation, but enough lawyers signed a petition to force a special meeting, and they're hoping to reverse that decision. They can't force a change in the decision itself, unfortunately, but if there is enough opposition to the original decision, I don't know, it might accomplish something.

Of course, the university is playing the "If you don't tolerate our discrimination, you're oppressing us" card.

My favourite defence against the school's practices continues to be "People can choose not to go." Soooo, a school says, "Your kind isn't welcome here," and the fact that it attracts students who agree with it - or don't care one way or another - means it's not discriminatory. Does that qualify as circular logic?

Actually, I'd like to go undercover and see how they plan on teaching the massive amount of case law and legislation that is touched on, in some way, by s.15 of the Constitution, because that's the one they're undermining. Are they going to say that every other form of discrimination addressed by s.15 is wrong, just not the one involving sexual orientation? Are they going to claim all of the other forms of discrimination are ok as long as it's done for religious reasons? They won't be able to ignore it, because student after student is going to bring up that section of the Constitution and that part of the covenant.

A few days ago I read an article by someone who didn't care about the university's covenant because of more importance to her was the fact that there are already too many lawyers in BC and not enough jobs. In fact, a lot of students are having a hard time finding articling positions, necessary to become a lawyer in the first place. She says the province doesn't need another law school. She feels that TWU just wants the money and prestige that comes with having a law school - I don't know about that one way or another, but it's not hard to believe - and that the only party that will benefit from their law school is TWU.

So some firm wants to hire a lawyer. They have a lot of options to choose from. Will they pick someone from a school with no political baggage and a level of education they can be confident about, or a school that believes it's ok to discriminate against people as long as it says so in the Bible - thereby alienating a lot of potential clients - with potentially a dodgy understanding of Constitutional and family law? (And estate law. Criminal law. Child protection cases. Who knows what else?)

And then, if students of TWU complain about not being hired, well, everyone can just point out that they chose to go to that school, thereby accepting the "values" that it teaches, and must face the consequences of that decision.
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I posted about Trinity Western University a little while ago. They are a private Christian university that is creating a law faculty and is seeking accreditation. The law society of the province in which the school is placed, British Columbia, has granted accreditation, as has a sorta federal organisation that isn't really in power yet. The Ontario law society has stated that it will not recognise a law degree from that university - and Ontario has the largest population as well as the capital city and the largest economic centre - as has another province, Nova Scotia.

At issue is the covenant the university requires students and faculty to agree to, which, among other others, included the requirement to abstain from:

•sexual intimacy that violates the sacredness of marriage between a man and a woman

Coupled with the fact that the students are encouraged to spy and tell on each other.

Nova Scotia told the school they would change their decision if the university took that one sentence out of the covenant. Instead, the school has decided to take the Ontario and Nova Scotia law societies to court. From what I've read, Nova Scotia's response can be boiled down to, "Bring it."

One of the university's problems, aside from trying to use the Bible as a justification for treating people like subhuman trash, is that they're relying very heavily on a Supreme Court of Canada decision that was made in 2001. In that case, the British Columbia College of Teachers refused to allow the same university to have full control of their teaching program. The university wanted to be able to teach its "values" to its teaching students and the BCCT didn't think it was appropriate to have teachers who were produced by a school that advocated discrimination. The BCCT lost that case. The court decision was that while the BCCT was acting appropriately in considering the possibility of discrimination and its detrimental effects, it didn't balance that with the right to freedom of religion in its considerations and didn't provide any examples of TWU teachers exercising any discriminatory behaviour while in the classroom, so it was inappropriate to just assume these teachers would be bigots.

Here's some problems for the TWU. (In my opinion, of course, and I'm not a constitutional lawyer.) Cases aren't usually directly on point with each other - if they were, we would just look things up in a book and wouldn't need to go to court - but I would say these two cases are so different that the 2001 won't be much use to TWU.

These law societies aren't telling the university they can't have a law school and do whatever they want to it. They don't have the authority to do that. Self-regulating law societies in other provinces are saying they won't recognise the degree, which they have every right to do. Totally different thing.

Both societies made it clear that they did consider the angle of freedom of religion. In the case of the Ontario society, some people who found the covenant repugnant still voted in favour of recognising the degree because of freedom of religion. I'm not saying there can be no argument that they didn't consider it enough, but the discussion of the Ontario law society is online and they clearly talk about having to balance the rights.

When it comes to whether TWU lawyers are more likely to be discriminatory, that's impossible to demonstrate one way or another, as the school isn't expected to start for a couple of years. The 2001 case was different because the university already had a teaching program, they just didn't have complete control over it.

But let's say the school had already been producing lawyers. While it's possible to figure out if teachers are discriminating against gay students, it's much harder to find out if lawyers are discriminating against gay clients, because we can turn clients down. Lots of lawyers have their staff perform some kind of intake interview with potential clients, and once a lawyer finds out the couple is gay, if s/he is a bigot s/he can just say s/he isn't taking clients right then. Too busy. If the lawyer doesn't find out until actually sitting down with the client, the lawyer can, at the end of that interview, claim the client's case is simply too complicated and outside their scope of expertise. Given this is all confidential, lawyers can't say who they've seen even if they don't get hired, unless ordered to by the right authority, it would be extremely difficult to discover a pattern, so I would propose it would be unreasonable for the court to expect evidence of this nature.

In what might be seen as a bit of a side issue, in determining how much deference the court should give tribunals - whether the decision should be given a lot of weight or basically be brushed aside - the court looks at the expertise of the members of the tribunal. The expertise of the BCCT is in teaching standards, not legal rights. As one judge said, "More importantly, the Council is not particularly well equipped to determine the scope of freedom of religion and conscience and to weigh these rights against the right to equality in the context of a pluralistic society."

Guess what lawyers are good at?

No, lawyers aren't smarter than everyone else, but they make us go to law school for a reason.

The law society is made up of people for whom determining/fighting over legal rights is their job. I would propose that a judge, a former lawyer, would give their decisions a lot more weight.

And - ding ding ding! - the 2001 decision was made before the courts recognised that to deny gay people the right to marry was a violation of the Charter. That was not the state of law when Trinity opened back in the Jurassic era or when the 2001 decision was made. The Supreme Court changes its mind when it feels an old decision isn't appropriate for current society. Given the very issue involved is the right of gay people to marry, well, Trinity, good luck with that.

Actually, no, no good luck. I could be completely wrong, but I hope not. And TWU might actually end up with less "freedom of religion" than they started out with, should a court decide that, in these times, their covenant has to go. Catholic schools in Ontario have to allow gay/straight alliance clubs despite it violating their beliefs.


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