The case that comes after Trinity Western

The Supreme Court of Canada is currently penning the final chapter in Trinity Western University’s law school saga — a legal drama that wound its way up to the top court from Ontario and British Columbia over the past four years.

In their reasons, the justices are expected to deliver a landmark ruling on the balance of equality and religious freedom rights in Canada. In doing so, they could also queue the next challenge to the gatekeepers of Ontario’s legal profession. That challenge is whether the cost of legal education at existing Canadian law schools is at odds with the access to justice or public interest mandate of law societies, and whether law societies or governments have a duty to regulate it.

Ontario’s Attorney General Yasir Naqvi’s intervention at the SCC was focused on the public interest duties of the Law Society of Upper Canada and the AG. His counsel told the court that respecting the public interest requires a legal profession that is able to tap into the talents, skills and perspectives of a diverse population – and the profession will not reflect that diversity if there are non-merit barriers to entry in the way, such as the one defended by TWU. Lawyers are unique from other professionals in that they have a role in refining the architecture of a free and democratic society — most immediately as the public’s interface with its institutions and the rule of law.

When asked by Justice Russell Brown whether law school tuition fees were a discriminatory barrier to entry, the AG’s counsel stated that while tuition does not engage an immutable personal characteristic like sexual orientation, “[t]here may well be an argument in a different case that an accredited law school may not set their fees so prohibitively high … so as to curtail the [admission] of meritorious candidates.” With legal education now unaffordable for most middle-income households, the case he foretells may follow closely on the heels of the TWU litigation.

Over 30 parties made submissions on the question of whether or not the B.C. and Ontario law societies could deny accreditation to TWU’s proposed law program on the basis that the school’s policies discriminate against LGBTQ people. At the heart of this debate is TWU’s Community Covenant Agreement — a mandatory pledge for incoming students requiring them to abstain from "sexual intimacy that violates the sacredness of marriage between a man and a woman." The covenant’s discriminatory effect is self-evident and — in the words of Ontario’s lower courts — it requires LGBTQ individuals to disavow their very identity, and it hurts. The LSUC has maintained they cannot accredit a pathway to the profession that is not equally available to all, based on merit.

The case before the SCC is a complex one. It pits human rights, administrative law and conflicting Charter rights against the differing procedural backdrops of two law societies. Given these moving parts, it may not be an ideal case for the court to make any transformative changes to the law. Nonetheless, it also provides an ideal beachhead to address the LSUC’s refusal to seriously engage with the problem of skyrocketing law school tuition. As former Chief Justice Brian Dickson stated, and the law society quoted in its argument, “… the ethos of the profession is determined by the selection process at the law schools. In order to ensure that our legal system continues to fulfil its important role in Canadian society, it is necessary that the best candidates be chosen for admission to law schools ... it is incumbent upon those involved in the admission process to ensure equality of admissions.”

But today the “best” candidates cannot be chosen, because the pool of applicants is inherently exclusionary. A student who enrolled at the University of Toronto last September will pay well over $100,000 for tuition over the three-year program. Next fall’s entering class at Osgoode Hall Law School will pay $28,000 per year — almost $10,000 more than I did just six years ago — and the wages awaiting grads haven’t budged.

The Law Students’ Society of Ontario’s 2014 report, Just or Bust, highlights the financial hardship of then-law students. Countless comments in that report — and other profiles of law students which have appeared in the media — have depicted law faculties as finishing schools for the elite. The immediate impact of exclusionary tuition rates is a professional community that compounds its own lamentable mental health and substance abuse statistics; the longer-term ones are a bar that is out of touch with the general public and can’t afford to provide service to the poor, and a bench whose members grew up going to private schools in places like Rosedale.

An accessible and representative bar helps the profession do its job for Ontarians. A profession that does not look like the public and cannot relate to the full range of its lived experiences is a poor instrument for supporting access to justice. The more elite the lawyer’s craft becomes, the further the law society drifts from its moorings under the Law Society Act.

If the law society’s position in the TWU case is adopted by the court, the regulator should next be called on to revisit the accreditations of most — if not all — of Ontario law schools on the basis that their tuition rates defy the public’s interest in maintaining an accessible legal profession. In effect, the LSUC will be hoisted by their own petard. The TWU litigation has been the flagship of renewed law society concern for equity matters related to the practice of law. Its arguments before the courts have been filled with bravado around its role in regulating legal education, despite abdicating responsibility for its discriminatory economics. It may soon have to live up to this jurisdictional bluster.

The profession’s internal equity, accessibility and inclusion policies are simply window dressing if there is no care given to how the gateway to the profession itself excludes or imposes barriers to Canadians before they are even qualified to write the bar exam. So long as the profession is hesitant to confront its own systemic accessibility problems, its other equity strategies will be no more effective at improving the face of the Ontario legal profession than Earth Hour is at winding back the clock on climate change.

The TWU decision is an opportunity for the court to plot a new course for the legal profession, and its own future. The risk, of course, is that the senior jurists tasked with weighing the TWU brief will lack the perspective of today’s debt-strapped law grads and those that sticker shock kept out of law school to begin with.

Douglas W. Judson is lawyer based in Fort Frances, Ontario who serves on the Law Society of Upper Canada’s Equity Advisory Group. He is also a past president of the Law Students’ Society of Ontario and former board member of Start Proud — both organizations which intervened in this proceeding. Connect with him at @dwjudson.