In the aftermath of yesterday’s historic debate before the Law Society of Upper Canada, in which the application of Trinity Western University for accreditation of a law degree was rejected 28-21, with one abstention, a number of colleagues asked me about the tactical considerations involved in this two-day process. TWU entered the second day of the Ontario debate buoyed by a 20-6 decision by the Law Society of British Columbia to grant accreditation. Those who followed the Ontario debate saw that TWU President Kuhn took the podium, instead of his appointed counsel. He led with various hurtful statements made about his University and about Christians, and suggested that to deny accreditation would be to validate such statements. He then asserted the right of the University to operate a law school.
A Teaching Moment
This event will, one day, appear in advocacy textbooks in chapters about cases about squandered opportunities. What made it a rare teaching moment was not only that the proceedings were televised by webcast, but also that about half of the decision-makers shared their thought-processes before casting their votes. It was a bit like being a fly on the wall in a jury room.
Tactically, TWU was a Respondent
Having succeeded at every stage in British Columbia, and facing no immediate opposition in Alberta, it was TWU’s case to lose. Indeed, the fact that the Federation of Law Societies had granted preliminary approval of the curriculum placed it in the advantageous tactical position of a respondent. For this reason, the Law Society gave TWU the last word, an opportunity to address public concerns and questions raised by benchers during the first day, on April 10.
The Ontario vote was close enough that a swing of four votes could have decided the matter in the other direction. Indeed, it was apparent from the speeches made during the debate that several opponents changed their minds and voted in favour of accreditation. What stopped four more Ontario benchers from following this trend? It actually came down to a failure by the University to know its audience and to observe some very basic principles of good advocacy. Several years ago, I had the pleasure of working with TWU’s counsel, Eugene Meehan Q.C., in leading a seminar about Supreme Court advocacy at the Canadian Legal Conference. One important lesson I learned from him was that if you are the respondent or the party who has hitherto been successful, one should make the case as lackluster as possible and stick to answering questions or concerns from the bench. If you are winning, just make the decision easy. I have integrated this philosophy in my defence practice, have shared it with colleagues, and know from experience that it is extremely effective.
What went wrong?
Prior to the debate, I thought that Mr. Meehan would be appearing before the Ontario benchers. As the consummate “closer,” his task would have been to “seal the deal” between TWU and the legal profession and calm fears of extremism. TWU did not have him address the assembly. Instead of taking a page from its counsel’s playbook, the University chose portray itself as an underdog with a tactical burden. Within a few minutes of the TWU President Kuhn’s presentation, any lawyer could sense the life draining from the case for accreditation. I noted the following observations:
- The inexplicable decision to have the University President make the oral pitch to the assembly, with one of Canada’s leading appellate counsel sitting in a corner.
- It was like the Pittsburg Penguins resting Sidney Crosby during the seventh game of the Stanley Cup final. Mr. Meehan has taught most of the top lawyers in Ontario how to plead a client’s case, and commands enormous credibility as counsel.
- Instead, the University put forth an unknown corporate officer from British Columbia to speak to a body charged with protecting the public interest in Ontario. Despite the fact President Kuhn is himself a lawyer, the University was put in the position of the pro se litigant, because the submissions were made by someone lacking in counsel’s objectivity.
- Leading with information not contained in the public record.
- Mr. Kuhn led by reciting numerous tweets, online newspaper comments, and other expressions of religious intolerance expressed against the University. An assembly versed in the rule that counsel should not give evidence from the podium or refer to facts outside the official record would have actively discounted these submissions. He lost the opportunity to make arguments on central issues by starting with an irrelevancy.
- Playing the victim card and equating rejection with bigotry.
- Instead of advancing its strengths as a college of learning, the University came before the assembled benchers with a grievance. It thus squandered the strategic advantage of having its curriculum and syllabus vetted by the Federation of Law Societies.
- Even those who voted in favour of accreditation expressed their discomfort with the idea of a University which forces students to sign a document that discriminates against LGBTQ members of the public.
- Arguing that denial of accreditation would validate religious intolerance, when the cause of the controversy was a contract of adhesion drafted by the University, reminded the assembly of its duty to the student at the moment of being asked to sign.
- Attempting to appeal to the heart and not the head.
- As evident in the earlier debate in British Columbia, fence-sitters opted to side with the University on the basis that to do so would be following the law. In the Ontario debate, it would have been more advantageous to explain why the B.C. benchers arrived at the correct decision.
- Instead, the University repeated its essentially empty argument that the 2001 Supreme Court decision is binding, without entering into specifics. This unsatisfactory argument led fence-sitters to search for reasons for considering the issue de novo. In so doing, the lawyer’s mental process was to look for differences, not similarities.
- The University, by advancing the 2001 decision through a bald, “You’ve got to follow this” argument, left a vacuum to be filled by those who argued that the 2001 decision did not apply.
- Failing to listen to the questions of the assembly.
- During the initial hearing, several of the LSUC benchers alerted the University of several questions, including one about the student who discovers his or her sexual identity during the course of the three-year degree and feels unable to sign the covenant for the second or third year. This should have telegraphed the need to shore up the case by addressing the compassion to be afforded the student. Had the University dealt with this question, and some others like it, head on, it could have swung enough votes to its side.
The textbook entry will likely finish with comments and questions about the importance of making informed advocacy decisions during the course of a court submission, especially when one is entering the process from a position of tactical strength. This was not a court, but it was a room of 50 leading lawyers exercising self-governance based on legal deliberation. The same types of considerations apply to civil, criminal and administrative advocacy. Arbiters of fact and law have questions and want to arrive at the right decision. One must place trust in the lawyer to plead the case and to be sensitive to the thought processes of those arbiters, to help bring about the desired outcome.