As day two of the hotly contested TWU case drew to a close at the Supreme Court, several lawyers said they expect a split judgment — but counsel on both sides were less certain about the final outcome, or what the determinative issues of the multi-layered historic case will be.
The top court reserved judgment Dec. 1 after hearing five minutes of oral argument from each of 27 interveners on the second day of the two-day TWU hearing in Ottawa. The nine judges were far less animated and voluble than they had been the day before when they enthusiastically grilled counsel for the parties — i.e. for Trinity Western University (TWU) and the Ontario and B.C. law societies (see story on the Nov. 30 hearing).
“Yesterday, it felt like [the judges] were expressing comments that showed their hand, and then today they took their hands back and put them closer to their chest,” remarked Immanuel Lanzaderas, co-counsel for the intervener Canadian Association of University Teachers.
“The court heard all sides and was certainly alive to, and aware of, all of the angles, and all of the perspectives being brought — that’s all we can ask for ultimately,” said Albertos Polizogopoulos, co-counsel for the intervener Evangelical Fellowship of Canada.
TWU’s president, Abbotsford, B.C. lawyer Bob Kuhn, said he remains hopeful that the country’s first evangelical Christian law school will be able to open its doors, if not in 2018, then in 2019. “You can imagine that as a small university on the outskirts of Vancouver, this has taken significant resolve to get it to this level,” he told The Lawyer’s Daily outside the courtroom. “But in terms of the hearing that we’ve had over the last two days, and the process that’s led up to that, we believe that it has been fair and reasonable and addresses all the issues that we would have expected to be addressed.”
The ultimate issue before the Supreme Court is whether to uphold or reverse the regulators’ separate decisions not to accredit the proposed law school on the basis that TWU’s faith-based compulsory code of conduct restricting sexual intimacy to married heterosexuals effectively excludes LGBTQ students from scarce law school seats — which the law societies, who are bound by the Charter, say they cannot bless.
The judges sat mostly silent as the interveners weighed in with their varied perspectives (fewer than half supported TWU), but Justices Russell Brown and Malcolm Rowe pressed Susan Ursel, co-counsel for the intervener Canadian Bar Association, to explain what the logical implications are of her position (shared by the law societies) that the regulators can deny accreditation on the basis of a faith-based university’s exclusionary admissions policy. (As a private sectarian body, the university itself is not bound by the Charter or provincial human rights legislation, although the legal regulators are.)
“What TWU now seeks is access to accreditation as a tangible form of additional government support for its religious law school, despite its discriminatory and exclusionary admission policy,” Ursel maintained. “This is a case about the boundaries of government support for religious legal education.”
“Is accreditation a form of support?” Justice Brown queried.>
This article continues at [The Lawyers Daily] Lawyers anticipate split ruling as SCC reserves judgment after animated TWU hearing