Law Times

Page 4 February 29, 2016 • Law Times www.lawtimesnews.com NEWS It's time to rank… THE TOP 10 LITIGATION AND CORPORATE LAW BOUTIQUES Complete the survey online at canadianlawyermag.com/surveys and make your picks. SURVEY IS OPEN UNTIL MARCH 1 st Untitled-2 1 2016-02-03 9:32 AM LSUC prepares to defend its vote to not accredit TWU BY NEIL ETIENNE Law Times T he Law Society of Upper Canada has filed its fac- tum of response in the ongoing battle by Trinity Western University to gain ac- creditation for the school. The factum of response ad- dresses Trinity Western Univer- sity's efforts to have the Ontario Court of Appeal overturn the provincial regulator's decision not to accredit the school. If the court won't overturn Convocation's 2014 vote to not accredit the school, Trinity is seeking an order to set aside the decision and have it remitted back to the regulator to be re- heard by Convocation. "The Law Society [of Upper Canada] is advocating for equal access and diversity in the legal profession, and we commend them for that, because we want the same thing," says Amy Rob- ertson, TWU spokeswoman. "TWU's School of Law will make a legal education more ac- cessible to all Canadians by pro- viding more law school seats. We also advocate for diversity in the legal profession, and TWU's School of Law will contribute to this diversity by training both law- yers who come from a faith back- ground and those who do not." "Part of the privilege of being Canadian is having the freedom to follow one's conscience, re- gardless of what you believe," says Robertson. "We'll welcome anyone who wants to be part of the TWU com- munity, regardless of their sexual- ity or background," she adds. LSUC representatives were unwilling to comment as the matter is before the courts. The LSUC has consistently al- leged the evangelical Christian school's Community Covenant is discriminatory against lesbian, gay, bisexual, queer, and trans- gender individuals. Students at TWU are required to sign the Covenant. It states students are to abstain from "sexual intimacy that violates the sacredness of marriage between a man and a woman." In its factum, the LSUC argues that it holds jurisdiction to deter- mine admission to the bar and has not infringed on the religious rights of the proposed school's students. LSUC manager of media re- lations and issues management Orli Giroux Namian did confirm for Law Times that hearings have been scheduled for June 6 and 7, almost exactly a year after the two sides met in Ontario's Divisional Court where Trinity unsuccess- fully sought a similar ruling to overturn the vote. The Divisional Court ruling, written by Associate Chief Justice Frank Marrocco with justices Ed- ward Then and Ian Nordheimer concurring, upheld the LSUC's decision to not accredit, but it did find the LSUC's decision infringed on Trinity's constitutional reli- gious freedom and that is one of the key arguments by the school to the Appeal Court come June. "This appeal is about protect- ing the members of a minority religion in our pluralistic society," Trinity states in its factum to the Court of Appeal. "The LSUC refused to accredit TWU because of those religious beliefs and not because TWU's students would not meet appro- priate standards of learning, pro- fessional competence and profes- sional conduct." TWU further states that "there is no dispute that TWU students would meet these standards." "In doing so, the LSUC in- fringed not only the appellants' freedom of religion but also other rights and freedoms that protect its manifestation: the freedom of expression, the freedom of asso- ciation and the right to equality," said Trinity. In its response, the LSUC ar- gues through its lead counsel on the matter Guy Pratte, partner with Borden Ladner Gervais LLP, that it did not infringe upon those rights. Through Pratte, the LSUC ar- gues that "to the contrary, it is in conformity with its obligation of state neutrality; respects all reli- gious views equally; and ensures that access to an Ontario law li- cence will continue to be based upon the competence of appli- cants and not on any discrimina- tory personal characteristic." "Thus, like every other group, evangelical Christians continue to have equal access to every ac- credited law school in Canada and there is no evidence that evangelical Christians have greater difficulty gaining ac- cess to the Ontario bar than any other group," the LSUC argues, requesting the Appeal Court dis- miss the appeal with costs. "The salutary effect of the law society's refusal to accredit TWU is very significant. Not only does it pre- serve equal access to the profes- sion, but the law society also reaf- firms its commitment to recog- nize and promote the equality of all persons regardless of religion, marital status, gender and sexual orientation." Law societies in Alberta, Sas- katchewan, New Brunswick, Newfoundland, and Nunavut voted to accept Trinity students to their bars. The Nova Scotia Bar- risters' Society is currently appeal- ing its provincial Supreme Court's ruling that its decision to not ac- credit was an infringement of the religious freedoms of the students. The Law Society of B.C. also filed an appeal in January to chal- lenge a Supreme Court of British Columbia ruling that overturned its 2014 vote to deny accredita- tion. LT Anthony Grant and Devon Vivian, both found guilty of second-degree murder in a trial presided over by Ewaschuk. The appellants argued in R v. Grant and R v. Vivian that Ewaschuk erred when he ruled that if the defence wanted mem- bers of the jury pool excluded from the courtroom then there was no choice but to have static triers. "The trial judge's error is fatal to the court's jurisdiction and thus to the convictions," stated Paul Alexander, appeal counsel for Grant, in written arguments filed with the court. The defence made it clear to the judge that it wanted the tra- ditional method of rotating triers for jury selection. Ultimately, the lawyers at trial backed down and agreed to the exclusion of sworn and unsworn jurors and to static triers. The appellants are arguing that there was no meaningful consent to what was ordered by Ewaschuk. "When they finally acquiesced in using static triers, they did so only because they were stuck with the trial judge's erroneous deci- sion," wrote Alexander. In response, the Crown said there is no discretion under the Criminal Code unless the exclu- sion has to do with courtroom space or minimizing inconve- nience for potential jurors. "Where an application for ex- clusion is made out of concern for preserving jury impartiality, s. 640 (2.1) governs and no discre- tion exists," said Leslie Paine, in the Crown's written arguments in Grant and Vivian. Last fall, the Court of Appeal quashed the murder convictions of two men in R v. Noureddine, another jury trial presided over by Ewaschuk, because he decided on his own to impose static tri- ers, despite the opposition of the defence. Whether a trial judge can exclude only prospective jurors during the challenge for cause questions and use rotating tri- ers "was expressly not before the Court of Appeal" in Noureddine, says Michael Lacy, who acted for a co-accused in the case who was also granted a new trial. Since the section came into force, there have been a number of conf licting Superior Court rulings in Ontario about its application. One of the first rulings on the issue was by Justice Thomas Heeney during the Bandidos biker gang trial in London in 2009. He found that a Superior Court judge still had jurisdiction to exclude unsworn jurors and use rotating triers. Justice Michael Code, during the Via Rail terror trial, came to the opposite conclusion in a 2014 decision. Code stated in R v. Jaser that the changes were "not a mere technical amendment" and they were aimed at preventing sworn jurors from being tainted by hearing the challenge for cause answers by prospective jurors. Giourgas, who represented Noureddine in his appeal, says that "the Heeney path" has been the more common practice fol- lowed in jury trials in southern Ontario. The Court of Appeal has pre- viously recognized that judges have common law jurisdiction to decide whether to exclude prospective jurors, notes Lacy. "Grant and Vivian will decide if this jurisdiction has survived the 2008 amendments," he says. While the Crown has a legitimate argument based on the legisla- tive changes, Lacy says he believes that judges still have the authority to exclude only the jury pool and have rotating triers. The decision in the Grant and Vivian appeal is on reserve. There are at least two more cas- es expected to be before the Court of Appeal in the next 12 months where defendants were convicted of murder and Ewaschuk im- posed fixed triers. LT Ruling could pave way for new trials in other cases Continued from page 1

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