What’s fair? It depends
- Subtitle: Editor's Desk
Lawyers are often criticized for a lack of decisiveness. When clients come seeking legal advice, what they are often looking for is strategic advice, and a muddled answer can drive clients crazy. They may ask a lot of questions, but “what should I do?” is usually the most important one, and “it depends” is most often not the answer they want.
But, lawyers protest, the law is rarely clear. Legal issues involve human beings, and human beings are neither predictable nor uniform. Enforcing rights is often a balancing act. Multiple interests need to be considered. If clients want certainty, they need to look elsewhere.
While this can be maddening for clients who need to make decisions, recognizing that human rules and interactions are almost always complex is an inevitable byproduct of practising law.
Lawyers are taught that the best way to advocate for a client is to understand their opponent’s reasoning. A lack of decisiveness, for a lawyer, is often an acknowledgement of complexity, not just waffling.
This is why the dispute about Trinity Western’s law school accreditation in our cover story is, in many ways, atypical of the legal community. Opponents of the proposed law school see its “community covenant” as deeply discriminatory against gays and lesbians. Proponents say the covenant is about a fundamental religious belief. Battle lines have been drawn — and even the nature of the dispute is disputed. “This case demonstrates that a well-intentioned majority acting in the name of tolerance and liberalism, can, if unchecked, impose its views on the minority in a manner that is in itself intolerant and illiberal,” wrote a five-judge panel of the B.C. Court of Appeal. Yet Bill Flanagan, who was head of the Council of Canadian Law Deans when it sent a letter to the Federation of Law Societies with concerns about Trinity Western’s application in 2013, says that the Council’s objection “had nothing to do with [Trinity Western] being faith based. The concern was about discrimination.”
After last year’s divisive election in the United States, this can seem like another insurmountable disagreement that is a zero-sum game. Two camps are battling it out and only one can win. Who is correct? What is the best outcome? The answer, unfortunately, may be “it depends.” It depends what your beliefs are. It depends which group you represent and which right you feel is being infringed upon.
But one thing is certain — a decision needs to be made. Whether it is the Supreme Court of Canada, Trinity Western, law societies or critics of the community covenant, some party needs to decide the best course of action. But acknowledging the complexity of getting there — and the well-reasoned and deep convictions of all parties — should be a requirement before the legal profession comes to any solution.
Published in Commentary
Tim Wilbur is a senior editor and licensed lawyer with over ten years of experience in the legal media. He is responsible for the editorial of Canadian Lawyer and Findlaw.ca.