January 21, Mr. Rene Gallant, President Nova Scotia Barristers' Society Cogswell Tower Barrington Street Halifax NS B3J 3K1

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1 Mr. Rene Gallant, President Nova Scotia Barristers' Society Cogswell Tower Barrington Street Halifax NS B3J 3K1 Dear Mr. Gallant, We are writing to you in regard to the recent decision by the Federation of Law Societies of Canada Common Law Program Approval Committee (FLSC Approval Committee) to give preliminary approval to Trinity Western University s (TWU) Proposed School of Law and the potential response by the Nova Scotia Barristers Society (NSBS) to this decision. We are writing to you as individuals who teach or do research in legal ethics and professional responsibility. We have grave concerns about this decision on both procedural and substantive grounds and believe that it should not be adopted by the NSBS. 1. Process We were greatly heartened to read in your memo to members of the NSBS dated December 20, 2013, that the NSBS Bar Council (Bar Council) will be considering the Federation s reports and determining what decisions are to be made by Bar Council and that you do not believe that the FLSC Approval Committee decision is the final word on the issue in Nova Scotia. That said, you indicated that the reports and materials referred to in them [the Federation s reports], including the legal opinions and analysis, will provide the basis for Council s deliberations. We would argue that the Bar Council should take these documents into consideration in its deliberations but that it should not take them as the basis for the deliberations. To take them as the basis presumes a deference to the FLSC Approval Committee and legitimacy and authority for the documents that we do not believe is appropriate because, for example, neither the FLSC Approval Committee nor the Special Advisory Committee on Trinity Western University s Proposal School of Law (Special Advisory Committee) had members with the necessary expertise in legal education this point will be expanded further below. Nor should the Bar Council take only these documents into consideration (that would provide too narrow a view of the issues at stake). Rather, Bar Council should review not only the FLSC Approval Committee Report on Trinity Western University s Proposal School of Law Program (2013), the Special Advisory Committee Final Report (December 2013), and the legal opinion relied on by the FLSC, but also: 1) all of the submissions Jocelyn Downie Associate Dean Graduate Studies Professor, Faculties of Law and Medicine Weldon Law Building, 6061 University Avenue, P. O. Box Halifax, NS B3H 4R2 Tel: Fax: Jocelyn.downie@dal.ca continued../2

2 Mr. Rene Gallant, President, NSBS /2 received by the FLSC ( 2) the academic literature on the topic (e.g., the paper published by Dalhousie law professor Elaine Craig in the Canadian Journal of Women and the Law ( 3) the relevant TWU documents including its Community Covenant Agreement, the Core Values Statement Series, the TWU Statement of Faith, and the policies and practices of TWU ( and 4) submissions that Bar Council receives directly in relation to its review. We would also argue here that Bar Council has a responsibility to form its own independent opinion on: 1) whether approval of the TWU program is in the public interest; and, more specifically; 2) whether the TWU program meets the National Requirement Ethics and Professionalism Competency ( National Requirement ). The FLSC Approval Committee recognized that the former is required as law societies continue to have the statutory authority to set policies for admission to the legal profession in their respective jurisdictions. (Approval Committee Report at 1) As you will be aware, Bar Council has the statutory authority and responsibility to act in the public interest in establishing criteria for admission to the legal profession (and approval of law programs is inextricably bound up in the establishment of these admission criteria). The latter is specifically required under the obligation to make a determination on the public interest for two reasons. First, the determination of the National Requirement issue is a component of the determination of the public interest. The Special Advisory Committee noted that [s]etting appropriate standards for admission to the legal profession is an essential component of the public interest mandate shared by Canada s law societies. The National Requirement approved by each of the law societies was developed as part of this public interest mandate. (Special Advisory Committee Report at 5) Second, the determination of whether the National Requirement is met must be made independently by Bar Council because there was a fatal deficiency in the composition of the Approval Committee and the Special Advisory Committee. The three law deans who were originally on the Approval Committee recused themselves from the Committee and were not replaced. (Approval Committee Report at 7) The Approval Committee comprises seven members, each of whom possesses specific qualifications relevant to the rule. The membership of the Approval Committee must include three current or former law deans or law school administrators, one law society CEO or designate, and three lawyers with experience in law society regulation. (Approval Committee Report at 2) Clearly, and rightly, when establishing the Approval Committee, the FLSC recognized the fact that members of the legal academy were essential members of the Approval Committee. While it is possible that the Approval Committee might be confronted with issues about which the lack of members of the legal academy would not be fatal, such was not the case here. The National Requirement issue turns on matters which fall squarely within the particular expertise of legal academics including what constitutes academic freedom, and whether critical thinking about ethics and an understanding of equality and discrimination and their place in the Canadian legal system and regulation of the legal profession can be taught and learned in an environment that practices discrimination and limits academic freedom. After the Deans recused themselves, no individuals with appropriate expertise in legal

3 Mr. Rene Gallant, President, NSBS /3 education were added to the Committee. We would note here that the involvement of a former law dean ( providing technical advice ) was not sufficient to cure the compositional deficiency. We would also note that, while it would have been impossible to add three law deans (given the source of the possible apprehension of bias that led to the recusals), it would have been possible to add three legal academics to the Committee. Furthermore, the Special Advisory Committee did not include any members with expertise in legal education. This Committee was tasked with considering whether there are additional public interest issues that should be taken into consideration in determining the eligibility of future graduates of TWU s proposed law school program to enroll in law society admissions programs. (Approval Committee Report at 6) The Special Advisory Committee opined on the following matters: [w]hether TWU s Christian worldview and intention to teach from this perspective makes it incapable of effectively teaching legal ethics, constitutional and human rights law and [w]hether TWU respects academic freedom. These are matters that require expertise in legal education. Given the deficiencies in membership of both the Approval Committee and the Special Advisory Committee, we would argue that Bar Council: 1) should not rely on the conclusions drawn about what constitutes academic freedom, whether critical thinking about ethics can be taught in an environment without academic freedom, and whether an understanding of equality and discrimination and their place in the Canadian legal system and regulation of the legal profession can be taught in the TWU context; and 2) should explicitly seek out appropriate expertise in legal education (particularly with respect to academic freedom and teaching equality law and critical thinking) to inform its decision-making. 2. Substance We were also greatly heartened to read in your December memo that you described the NSBS as the public-interest regulator of the legal profession in this province and you indicated that the Society is committed to advocacy on the issue of access to justice for equityseeking groups. A focus on the public interest and equity is absolutely appropriate and, we would argue, determinative. It should take Council to a rejection of the FLSC position. Others have developed, and will continue to develop, arguments for why simply adopting the FLSC Approval Committee decision violates administrative law associated with the role of the FLSC in accreditation. Still others have and will continue to develop the arguments for why approval of the TWU program by the NSBS would violate human rights and constitutional law. We will therefore focus here on a public interest analysis. Specifically, we will argue that, as a result of its policies and practices, TWU does not meet the National Requirement. We will also offer some further reflections on the assessment of whether approval of a proposal from TWU would be in the public interest in light of legal ethics obligations of the NSBS under the Legal Profession Act, the regulations under that Act, and the Code of Conduct.

4 Mr. Rene Gallant, President, NSBS /4 a. The National Requirement 1 The National Requirement requires that [t]he applicant must have demonstrated an awareness and understanding of the ethical dimensions of the practice of law in Canada and an ability to identify and address ethical dilemmas in a legal context including the capacity to identify and engage in critical thinking about ethical issues in legal practice. (Common Law Degree Implementation Committee: Final Report (August 2011) at 17, online: The ethical dimensions of the practice of law relevant here include the rejection of discrimination and the embrace of the requirements and obligations of human rights laws and the place of equality in the NSBS Code of Conduct and the centrality of the Canadian constitutional value of equality in the Rule of Law. Much of this is familiar territory for lawyers but with respect to the place of equality in the NSBS Code, it is important to note here that, in Nova Scotia, Ch. 6 has equality in the title of the chapter (the Model Code title is merely Harassment and Discrimination ). Nova Scotia has intentionally and affirmatively embraced the value of equality and not just expressed opposition to discrimination. The question is whether the TWU program would be capable of ensuring that TWU graduates meet the competencies spelled out in the National Requirement (particularly, with respect to understanding equality and engaging in critical thinking about ethics). Indeed, given TWU policies and practices (including institutionalized discrimination on the basis of sexual orientation and the requirement that teaching and learning be conducted within the bounds of the Scripture as wholly authoritative and truthful ), we would argue that a law program at TWU would not be capable of meeting the National Requirement: the program would not ensure that students: 1) understand the ethical dimensions of the practice of law (including the value of equality and the ethical duty not to discriminate); and 2) can engage in critical thinking about legal ethics. The relevant TWU policies and practices at issue here include the Community Covenant Agreement, the Core Values Statement Series, and the TWU Statement of Faith. It is very important for anyone evaluating the TWU proposal for a law school to carefully read all of these documents. To explain why we have come to the conclusions we have with respect to the TWU proposal, we offer the following illustrative quotes and comments on some of them (organized under the two headings of the principal bases for the conclusion that the FLSC decision on the TWU proposal should be rejected). It is important to note that while the TWU documents 1 It is important to note here that denial of approval of a law school at TWU on the basis of the National Requirement would not likely trigger the application of TWU v. BCCT, [2001] 1 S.C.R 772. This point is included in John Laskin s March 21, 2103 legal opinion to the FLSC If the Approval Committee were to conclude that the teaching of the required competencies would be constrained so as to render the TWU School of Law unable to meet the national requirement, that decision would likely not engage the concerns about Charter values that underlay the decision in BCCT. It would be based not on generalized concerns about discriminatory practices grounded in religious beliefs, but on the conclusion that the TWU program would fail to teach a set of competencies that are required irrespective of religion. (at 4)

5 Mr. Rene Gallant, President, NSBS /5 considered by the Approval Committee and the Special Advisory Committee proclaim commitments to equality, critical thinking, and academic freedom, careful consideration of the required commitments and conduct required by TWU as opposed to its proclamations, reveal a very different reality. Equality Students, including those who may be partners in lawful same sex marriages, who are not willing to forswear same sex sexual intimacy will not be allowed to enroll at TWU. ( community members voluntarily abstain [but they cannot be students, faculty, or staff if they do not do so] from sexual intimacy that violates the sacredness of marriage between a man and a woman. (Community Covenant Agreement ( Covenant ))) Students who engage in same sex sexual intimacy can be expelled. Homosexuality is described in the following terms: For this cause God gave them up unto vile affections: for even their women did change the natural use into that which is against nature. (Romans 1:26) and In the same way the men also abandoned natural relations with women and were inflamed with lust for one another. Men committed shameful acts with other men, and received in themselves the due penalty for their error. (Romans 1:27) LGBT students who are not willing to embrace the view of themselves as having given themselves unto vile affections or committing shameful acts are not welcome at TWU ( Others who are willing to identify with this ethos [the central ethos of the Believers Church movement] are welcome to participate (Introductory Statement to TWU Core Values Series, Trinity Western University as an Arm of the Church, Understanding a Critical Core Value ( Introductory Statement )) the implication is that those who are not, are not welcome to participate.) LGBT students must wholeheartedly embrace the view that homosexuality entails vile affections and shameful acts. [A]ffirming Scripture as the inspired Word of God means that we gladly embrace it not only for our doctrinal commitments, but also for our daily lives. Scripture will be of little value if it does not govern and affect how we live out our lives both as individuals and as a corporate body. All that Scripture teaches in regard to our attitudes, behavior, and ethical commitments must be wholeheartedly embraced and lived out in both the church and society. In other words, ethical commitments must come from Scripture, all of Scriptures ethical commitments must be wholeheartedly embraced, therefore LGBT students must embrace the view of themselves as having given themselves up to vile affections or committing shameful acts. (TWU Core Values Statement Series No. 1 Obeying the Authority of Scripture ( No. 1 ))

6 Mr. Rene Gallant, President, NSBS /6 The same requirements and restrictions and analogous consequences (not being hired and being fired) apply to faculty ( Sincerely embracing every part of this covenant is a requirement for employment. (Covenant)) Critical thinking We believe that God has spoken in the Scriptures, both Old and New Testaments, through the words of human authors. As the verbally inspired Word of God, the Bible is without error in the original writings, the complete revelation of His will for salvation, and the ultimate authority by which every realm of human knowledge and endeavour should be judged. Therefore, it is to be believed in all that it teaches, obeyed in all that it requires, and trusted in all that it promises. (Trinity Western University Statement of Faith ( Statement of Faith ) God s written word is authoritative. We also promote the word infallibility, which implies that the Scriptures infallibly disclose God s revelation. (No. 1) If Scripture is necessary in order for human beings to know God, and Scripture as God s Word is centered in Jesus Christ, God s full and final revelation, then certainly it must be the final and ultimate standard of truth, the reference point by which every other claim to truthfulness is measured. In other words, Scripture must be our lens by which we view and evaluate our lives and the world. (No. 1) [I]nsofar as Scripture speaks, it speaks truthfully, and its principles undergird all true knowledge. (No. 1) [T]he Scriptures without error in the original writings are the Divine and final authority for all Christian faith and life. (No. 1) Furthermore, affirming Scripture as the inspired Word of God means that we gladly embrace it not only for our doctrinal commitments, but also for our daily lives. (No. 1) Turning this around, not only must students and faculty affirm Scripture as the inspired Word of God (which for TWU means true and authoritative), they must also do so for their doctrinal commitments. This is antithetical to academic freedom and critical thinking about values at the core of legal ethics. [O]ur loyalty to Scripture requires us to reject the assumption that there is no absolute truth to which human beings must submit. (No. 1) That is, faculty and students must acknowledge the absolute truth of Scripture. This constrains the teaching and learning of critical thinking about ethics. Ultimately, however, we base teaching and scholarship on biblically based truths and moral commitments that we hold to be certain. (Trinity Western University Statement Series - No. 2 Pursuing Faith-Based Learning and Faith-Affirming Learning ( No.2 )) How can you teach students to be critical thinkers about legal

7 Mr. Rene Gallant, President, NSBS /7 ethics, to think for themselves, when the teachers are not free to say anything about core legal ethics concepts other than that X is right and Y is wrong and students are not free to believe anything other than that X is right and Y is wrong? Devotion to the aim that all teaching, learning, thinking, and scholarship should take place under the direction of Scripture, which is regarded as wholly authoritative and truthful in all its teachings and within the bounds of the University s Christian faith commitments. (Introductory Statement) All teaching, learning, and thinking must take place within the bounds of the University s Christian faith commitments. Such restrictions on thinking, teaching, and learning are antithetical to critical thinking about values at the core of legal ethics. It is not a violation or threat to critical thinking for a student to go into (or even come out of) a legal ethics course believing that the Scripture is the final and ultimate standard of truth. Nor is it a violation or a threat to critical thinking for an individual faculty member to believe in the infallibility and ultimate authority of the Scripture. However, it is a fatal restriction on a teacher s capacity to teach critical thinking about values at the core of legal ethics for a teacher to be required on pain of dismissal to teach that God s Word is the final and ultimate standard of truth. ( Sincerely embracing every part of this covenant is a requirement for employment. (Covenant)). There is a difference between choosing to be Christian and hold the views on homosexuality embraced by TWU and being forced to hold them as a condition of gaining access and/or remaining in school. Of course law students should be free to embrace a Christian worldview in relation to core ethical values. But how can you have freedom to learn to think about core ethical values (essential for development of critical thinking skills in the context of legal ethics) if you are not free to change your mind (without retribution) about the meaning and place of those values? Based on these and other similar statements and positions, the context within which the students would be learning at TWU means that they could not be expected to develop an understanding of equality and the profound rejection of the practice of discrimination and support for the principle of equality by the legal system and, in particular, the NSBS. The policies and practices at TWU result in the immersion of its law students in a context within which discrimination is openly practiced and institutionally enforced. In such a context, where as a fundamental and explicit part of the mission of the institution students are taught that certain forms of inequality are essentially authorized and demanded by God, it is impossible to imagine how students could come to understand that equality is a fundamental legal ethical value and that they have an ethical duty not to engage in discriminatory behavior. Furthermore, the constraints under which the faculty must teach and students must learn also mean that the program will not meet the National Requirement with respect to critical thinking in relation to ethics. The faculty and students must adhere to a single religious position. Teaching critical thinking requires that faculty have the freedom to encourage students to question the

8 Mr. Rene Gallant, President, NSBS /8 authority of any empirical or normative claims. Learning critical thinking requires that students learn how to engage with material from a variety of positions, with the outcome of their thinking not being preordained. Critical thinking requires not learning one way of viewing things, but rather learning the skill of judging between different ways of viewing things. Thus, given the constraints placed by the various policies and practices at TWU, during their time at TWU, students are not assured training and experience in critical thinking in relation to ethics and the NSBS cannot be confident that they are likely to emerge with this skill at the level required for the practice of law. Before closing this discussion of the National Requirement, it is important to attend to the issue of academic freedom. The Special Advisory Committee directly addressed the submissions received by the FLSC to the effect that TWU violates academic freedom and therefore cannot be found to meet the National Requirement. The Special Advisory Committee noted the reliance in the submissions on the Canadian Association of University Teachers definition of academic freedom and CAUT s finding that TWU violates academic freedom. The Committee then went on to suggest that there is no single definition of academic freedom, referenced the Association of University and Colleges of Canada s 2011 definition of academic freedom, concluded that TWU does not violate the AUCC definition of academic freedom, and further concluded that it is not open to the Special Advisory Committee to conclude that academic freedom will not be respected at the proposed law school. (Special Advisory Committee at 14-15) However, the Special Advisory Committee failed to note that the AUCC Statement on Academic Freedom has been and continues to be the subject of considerable controversy and, indeed, was described by the CAUT as an attempt to undo many of the advances that have been achieved in the understanding of academic freedom over the past 100 years. The AUCC has no more authority to define academic freedom than the CAUT and there is no more legitimacy to the AUCC definition than the CAUT definition. Indeed, many academics would argue that it has less. If grounding a conclusion on whether TWU meets the National Requirement on a definition of academic freedom, then the Special Advisory Committee had an obligation to justify the definition it relied upon and the FLSC had an obligation to ensure that the Special Advisory Committee had sufficient expertise with respect to academic freedom to make a properly informed decision about what definition to rely upon. The Special Advisory Committee offered no such justification and had no such expertise among its members. The fact that it did not even seem to be aware of the controversy over precisely the element of the definition that the Committee relied upon (limits related to the mission of the institution) reinforces our claim that deference should not be shown to the Special Advisory Committee s findings. b. Additional public interest arguments Beyond the argument that TWU does not meet the National Requirement, we would offer the following additional public interest-based ethics arguments against approval of TWU by the NSBS: - the NSBS has grounded a number of positions on legal ethics issues in its concern to preserve the integrity of the legal profession. For example, the justification given for taking disciplinary action against a lawyer for dishonourable or questionable conduct on the part of a lawyer in either private life or professional practice is a

9 Mr. Rene Gallant, President, NSBS /9 concern about adverse reflections on the integrity of the profession (2.1-1 C[4]) and the purpose of demanding respect from lawyers for the duty of loyalty is to maintain public confidence in the integrity of the legal profession. (3.4-1 C[5]) To approve TWU would reflect adversely upon the integrity of the profession for how can one claim a moral coherence between the legal profession s commitments to equality and approval of a legal education program whose very identity perpetuates and increases inequality? Therefore, just as the NSBS establishes the rules outlined above, it should refuse to approve the TWU program. - Members of Bar Council who are lawyers in Nova Scotia have a duty to uphold the standards and reputation of the legal profession and to assist in the advancement of its goals, organizations and institutions. (2.1-2) To approve TWU would damage the reputation of the legal profession. Consider what the public would make of the following logical implication of approval of the TWU program. If Bar Council approves the TWU program with its policies and practices that discriminate on the basis of sexual orientation, it would also logically be committed to approval of a program at an institution with policies that discriminate on the basis of race that is, an institution prohibiting interracial sexual relationships. This institution could have a covenant identical to the TWU covenant except that where TWU s covenant says the sacredness of marriage between a man and a woman, this institution s covenant would say the sacredness of marriage between a man and a woman of the same race (such a position has been defended by reference to some of the very same passages in the Bible used to defend the condemnation of homosexuality). The reputation of the legal profession would surely suffer if the public were to understand the logical implications of approving the TWU program for approval for an analogously racist, illegal, and unethical program. - Admission to the bar is a public good. The legal profession has been granted a monopoly and, through its admissions processes (which include decisions about standards for law schools), the NSBS is the gatekeeper of this public good. Approval of TWU distributes this public good in a discriminatory fashion (in effect, unequal benefit on the basis of sexual orientation). The Special Advisory Committee responded to this concern with the following argument: we are not aware of any evidence that TWU limits or bans the admission to the university of LGBT individuals. A number of those who made submissions to the Federation noted that there are LGBT students at TWU. It is reasonable to conclude that the requirement to adhere to the Community Covenant would make TWU an unwelcoming place for LGBT individuals and would likely discourage most from applying to a law school at the university, but it may also be that a faith-based law school would be an attractive option for some prospective law students, whatever their sexual orientation. It is also clear that approval of the TWU law school would not result in any fewer choices for LGBT students than they have currently. Indeed, an overall increase in law school places in Canada

10 Mr. Rene Gallant, President, NSBS /10 seems certain to expand the choices for all students. (Special Advisory Committee Report at 15). A number of responses to this passage are possible. First, some prospective law students, whatever their sexual orientation are not a historically disadvantaged group. Second, that TWU might be an attractive option to them should not be weighed against the harm to LGBT individuals. Third, to say that LGBT students would have the same number of law school places available to them (i.e., at the schools that do not discriminate on the basis of sexual orientation) reflects a shocking misunderstanding of equality and discrimination. Could a new hotel choose to rent its rooms only to Caucasians on the basis that there are no fewer rooms available to non-caucasians than they have currently? Absolutely not. Non-LGBT students will have more access to law school places, to the exclusion of some LGBT students and that is discriminatory. With the approval of the TWU program, all but LGBT students will have access to an increased probability of admission to the practice of law without profound compromise on their personal identity and integrity. This is unethical. On the basis of all of the preceding, we urge Bar Council to reject the FLSC Approval Committee s decision with respect to the proposed TWU School of Law program and to reject a direct proposal from TWU to the NSBS. As teachers of Legal Ethics and Professional Responsibility, we hope that we will be able to point our students to your decision as an example of the legal profession living up to its statutory and ethical obligations, standing up for the rights of the historically disadvantaged, and standing up against discrimination. We hope that we will be able to point our students to your decision as an example of the legal profession understanding the nature and significance of academic freedom and critical thinking in legal education in universities. In sum, we hope that the legal profession in Nova Scotia will show itself to be worthy and capable of self-regulation in the public interest. Sincerely, Jocelyn Downie, FRSC, FCAHS, SJD Professor, Faculties of Law and Medicine Dalhousie University Richard Devlin, LL.M. Professor of Law and University Research Professor Faculty of Law, Dalhousie University

11 Mr. Rene Gallant, President, NSBS /11 W. Brent Cotter, Q.C. Professor, Faculty of Law University of Saskatchewan Jasminka Kalajdzic, LL.M. Associate Professor, Faculty of Law University of Windosr c. Darrel Pink, Executive Director, NSBS Tilly Pillay, QC, First Vice-President, Chair, Gender Equity Committee Naiomi Metallic, Chair, Racial Equity Committee, NSBS Emma Halpern, Equity Officer, NSBS Kim Brooks, Dean, Schulich School of Law