Law Times

Law Times • September 1, 2014 Page 7 www.lawtimesnews.com COMMENT Court's Trinity Western decision eagerly awaited By anna WonG For Law Times he profession will be eagerly watching as the Divisional Court hearing into Trinity West- ern University's application for judicial review of the Law Society of Upper Canada's dubious refusal to accredit its proposed law school gets underway in December. On April 24, Convocation voted 28-21 against accred- itation of the law school aer the Federation of Law Soci- eties of Canada and the B.C. Ministry of Advanced Edu- cation gave their approval. is means graduates from that law school will not be eligible to enter the LSUC's admission program. A day aer the LSUC decision, the council of the Nova Scotia Barristers' Society followed suit. e Ontario and Nova Scotia regulators are in the minority, however, as the law societies of British Colum- bia, Alberta, Saskatchewan, New Brunswick, Prince Ed- ward Island, Newfoundland and Labrador, and Nunavut have all cleared the way for Trinity Western graduates to practise law in their jurisdictions. At the heart of the controversy lies the community covenant agreement Trinity Western requires its stu- dents to sign. e community covenant pledges absti- nence from "sexual intimacy that violates the sacred- ness of marriage between a man and a woman." For those who weighed in, the debate pitted reli- gious freedom against the right to be free from dis- crimination based on sexual orientation. Freedom of religion, according to Trinity Western and its supporters, includes a right for people of the same faith to establish educational institutions and exclude those who do not share their religious views. Excluding Trin- ity Western graduates from admission to the Ontario bar violates their right to act on their religious beliefs and dis- criminates against them on the basis of religion. ere is no evidence to suggest that Trinity Western graduates will not "meet the standards of learning professional compe- tence and professional conduct that are appropriate for the legal services they provide," as stated in s. 4.1(a) of the Law Society Act, so as to justify their exclusion. Indeed, the conclusion reached by the federation's special advi- sory committee militates against such a suggestion. Moreover, Trinity Western University v. British Columbia College of Teachers effectively renders accredi- tation a foregone conclusion. In that case, the B.C. Col- lege of Teachers had found Trinity Western's application for certification of its teacher education program to be against the public interest because of the community standards contract it required its students to sign. Sid- ing with Trinity Western, the Supreme Court of Canada held the Charter of Rights and Freedoms did not apply to the school and, absent concrete evidence that graduates would discriminate when they entered their profession, the law should respect the freedom of religion of indi- viduals studying there. On the other side of the divide are those who point to the effect of Trinity Western's community covenant, which is to preclude lesbian and gay individuals from applying to the school or living there openly without the spectre of discipline, including expulsion. Such dis- crimination on the basis of sexual orientation offends the Charter, which the LSUC must consider in making decisions within its statutory mandate pursuant to Doré v. Barreau du Québec. e LSUC must act in the public interest as per s. 4.2 of the Law Society Act. It would be contrary to the public interest to accredit a law school with institutional policies and practices that discriminate against lesbian and gay individuals. An institution that publicly and staunchly opposes sexual relations between gays and lesbians cannot impart on prospective lawyers a holistic and balanced understanding of constitutional and human rights law, particularly the jurisprudence on discrimination based on sexual orientation, nor can it foster diversity of opinion and academic freedom. Fur- thermore, the community covenant is incompatible with the ethical training required of lawyers as per Rule 5.04(1) of the LSUC's Rules of Professional Conduct dealing with the "special responsibility to respect the requirements of human rights laws in force in Ontario, and specifically, to honour the obligation not to discriminate." As for the earlier Supreme Court decision on Trinity Western, not only has the law evolved in the intervening years, but the evidence, issues, and arguments that will arise this time may very well be different. Our col- lective tolerance for discrimination against the gay community has also changed. is change may tip the scale when Charter rights collide. Given the compelling arguments put forward by each camp, it is no surprise that former LSUC treasurer Tom Conway professed in Law Times recently that "the most difficult issue I've had to deal with as treasurer was the Trinity Western application." Aer much intellectual wrangling with my feminist values, I have come to con- clude that as distasteful and discriminatory as the com- munity covenant is, the LSUC's decision appears equally distasteful and discriminatory in effect. By denying ac- creditation to Trinity Western, the law society categori- cally denies its graduates the chance to practise in Ontario because they decided to exercise their freedom of religion to live by their Christian ethos and attend a private Chris- tian university that reflects those values as set out in the community covenant without giving them an opportu- nity to demonstrate they have the legal and ethical com- petency to provide legal services. We must remember that accreditation of Trinity Western entails only the eligibility of its graduates to en- ter the bar admission program. e LSUC's licensing process is a comprehensive one consisting of the bar- rister and solicitor exams, completion of articling or the law practice program, and a good-character check. Un- less there is evidentiary support for the proposition that all Trinity Western-trained lawyers would be unfit to practise in Ontario, the LSUC's decision shakily stands on theoretical speculation. It would be too easy to brand someone as anti-gay or non-progressive for not agreeing with the LSUC's decision. Yet given the evidence avail- able when it made the decision, there was insufficient justification even if it might have been the right move. Having said that, the evidence tendered to the court on the judicial review application may well illuminate the issue differently. Assuming the matter will make its way up the judicial ladder, a decision from the Supreme Court will be most welcome as it will provide clarity on an issue that has led to a checkerboard of decisions from provincial and territorial law societies. LT uAnna Wong is a Toronto civil litigator with Landy Marr Kats LLP. e opinions expressed in this article are her own. u SPEAKER'S CORNER CDLPA TROUBLED BY DUTY COUNSEL EXPANSION e County & District Law Presidents' As- sociation, representing 46 local law associa- tions across Ontario that in turn represent nearly 12,000 practising lawyers, has been hearing more and more anecdotes from the private bar of a perceived encroachment by Legal Aid Ontario into what has tradition- ally been the realm of the private bar. ese anecdotes of evidence are too numerous to ignore and signal a troubling trend if true. Although LAO denies (see "New duty counsel not public defenders: LAO," Aug. 18) that the hiring of more senior duty counsel is a move towards a public-defender model, this denial is proving to be of little comfort to those lawyers on the front lines. We ac- knowledge that there are fewer certificates being issued as a result of the general trend towards lower crime rates, and this is fuelling some of the anxiety among members of the private bar who utilize legal aid certificates in their practice. But if this is true, why are more staff lawyers or duty counsel needed to fill unmet needs? Where is the evidence that needs are going unmet by the private bar? Most troubling to CDLPA is the fact that LAO continues to make decisions on things like the hiring of more senior coun- sel without real and substantial consultation with the private bar. A general, high-level consultation consisting of a presentation to umbrella associations like CDLPA is simply not enough. Unmet needs, if they exist, will more oen than not be the result of local circumstances. As such, local solutions can oen be found. In regions across Ontario, this consultation and collaboration has not taken place and it is causing great consterna- tion among the practising bar. Instead, the consultation normally consists of a meet- ing or a presentation about how and when a duty counsel will be hired and no opportu- nity is given to offer an alternative solution. We acknowledge that the LAO is within its rights to hire senior duty counsel. We question why is it taking that approach. It is within this question that we think a common ground can be found on this matter. If a need can be demonstrated in a particular region and no viable solutions can be offered by the local private bar, then of course LAO should look internally for a solution. Establishing this local need and exhausting local private- bar options should be the first step. In our view — and the evidence supports this posi- tion — hiring additional civil servants, with the associated overhead cost (and, in par- ticular, public-sector pension costs) should never be the first option for LAO. We believe a less expensive option will almost always be found among the private bar. With the re-election of Premier Kathleen Wynne's government and the subsequent passage of the Ontario budget, there will be new money flowing into the legal aid system in Ontario and this will go a long way to al- leviating some of the financial pressures of this long underfunded system. However, the budget was just a number and a promise to build a new 10-year strategy for legal aid sus- tainability. We hope and trust that LAO will undertake a real and substantial consulta- tion with the private bar in the development of that strategy. LAO has declared that they value the partnership with the private bar. at partnership must involve true consul- tation and collaboration on finding solu- tions to local problems. Cheryl Siran, chairwoman, County & District Law Presidents' Association LAO PUTS NEW HIRES IN CONTEXT In your recent coverage of Legal Aid Ontar- io's recent hiring of additional duty counsel (see "CLA concerned about duty counsel expansion," page 5), the Criminal Lawyers' Association's comments do not reflect LAO's role and mandate to provide legal aid ser- vices that are responsive to the needs of low- income Ontarians and provide for the effec- tive use of limited taxpayers' dollars. e CLA mistakenly criticizes LAO for relying on duty counsel to deliver high- quality, cost-effective criminal legal aid ser- vices. LAO has done a financial analysis of per diem duty counsel positions in various courthouses. In areas where it makes finan- cial sense, LAO will be hiring staff lawyers to replace per diem duty counsel. Duty counsel have been a fundamental component of the criminal justice system in Ontario for almost 50 years. Duty counsel represent low-income people who are not eligible for certificates in courthouses across the province. In some cases, these clients earn more than the certificate program's financial threshold or their legal issue is not covered by a certificate. In all cases, duty counsel are required to provide effective and competent representation and act in accordance with the Rules of Professional Conduct. Let's put things into perspective: LAO's duty counsel program has always been a small fraction of its budget. It is true that LAO has hired more duty counsel and six senior counsel lawyers across Ontario in re- cent years. By way of comparison, there are 4,000 private bar lawyers who do certificate work and LAO paid those lawyers more than $181 million in 2013 to provide servic- es. Nor did the CLA mention that between January 2010 and April 2015, the hourly tariff paid to private lawyers will increase between 41 and 66 per cent. It is important to note that the majority of LAO's new hires provide family duty counsel services. ese duty counsel have helped LAO expand its services to unrepresented family litigants. More importantly for clients, the govern- ment of Ontario has committed to raising the income eligibility threshold to qualify for legal aid assistance to the level of Statis- tics Canada's low-income measure within 10 years, doubling the number of people eli- gible for legal aid services. Kristian Justesen, Director of communications, Legal Aid Ontario u LETTERS TO THE EDITOR T

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