Space Enough For All: Nova Scotia Supreme Court Makes Decision on Trinity Western University Law School

People disagree about many things in a pluralistic and multicultural society such as Canada. But perhaps the most passionate debate in recent years  is found among those caught in a controversy involving religion and sexuality. Trinity Western University (TWU), a private Christian university in Langley, B.C., has faced strong opposition to its proposed law school. The controversy is centred on TWU’s requirement that students agree to a Community Covenant, which, among other things, prohibits students to engage in “sexual intimacy that violates the sacredness of marriage between a man and a woman.”[1] So far, three law societies, including the Nova Scotia Barristers’ Society, have refused to accept the TWU law degree because of the Community Covenant. Is there enough room in Canadian society for opposing viewpoints?  The recent decision of Justice Campbell, as discussed below, has ruled that, yes, there is enough space for all.[2]

Background: Nova Scotia Barristers’ Society (NSBS)

On April 25, 2014, the Nova Scotia Barristers’ Society refused approval unless TWU either exempted law students from signing the Community Covenant or amended the Community Covenant for law students in a way that would cease to discriminate.[3]

TWU applied to the Court for a judicial review, claiming NSBS did not have authority to make the decision and that it violated TWU’s religious freedom as guaranteed by the Canadian Charter.[4] The hearing was held during the week of December 16-19, 2015 in Halifax.

NSBS’ Error

Justice Campbell was rigorous in his assessment of the Barristers’ Society’s error in refusing to recognize the TWU law school and its degree. He rejected the position that the Community Covenant was “unlawful discrimination.” “It is not unlawful,” said Campbell, “It may be offensive to many but it is not unlawful. TWU is not the government. Like churches and other private institutions, it does not have to comply with the equality provisions of the Charter.” He continued that TWU “was not in breach of any human rights legislation that applies to it.”[5]

TWU had been described by the Law Society in the December hearing as a “rogue” law school. Campbell objected to this characterization. The school could only be so considered “…in the sense that its policies are not consistent with the preferred moral values of the NSBS Council and doubtless many if not a majority of Canadians.” [6]  However, he noted, “The Charter is not a blueprint for moral conformity. Its purpose is to protect the citizen from the power of the state, not to enforce compliance by citizens or private institutions with the moral judgments of the state.”[7]

Justice Campbell recognized that Canadians have the right to attend a religious university that imposes a religiously based code of conduct, even if that code excludes or offends others who will not or cannot comply. “Learning in an environment with people who promise to comply with the code is a religious practice and an expression of religious faith. There is nothing illegal or even rogue about that. That is a messy and uncomfortable fact of life in a pluralistic society.”[8] To demand that right to be sacrificed for state recognition of professional education was an infringement of religious freedom that could not be justified.

Though Canada is a secular society, and becoming more so, Justice Campbell made it clear that the state must remain neutral on matters of religion and not favour one religion or no religion. “[The state] has not purged religiously informed moral consciences from the public sphere nor does it accord them more weight than others,” he noted. “The society is secular, but the state does not have a secularizing mission.”[9]

The Court reviewed the role of marriage as being a central institution to the faith and practice of Evangelical Christians.[10] The codes of conduct incorporating such faith communicate the identity and ethos of the university. They “are seen as establishing a community ‘conducive to spiritual growth in the context of Christian colleges and universities.’ The environments are intended to be protected from influences that are detrimental to personal spiritual growth.”[11]

A considerable portion of Campbell’s decision involved reviewing the context of the Barristers’ Society’s emphasis on eliminating discrimination against minorities from the practice of law in Nova Scotia. In December 1989 a Royal Commission concluded that the wrongful conviction of Donald Marshall Jr. was due, in a large part, to his status as a Mi’kmaq. It called for courses and programs for law students, lawyers, and judges to help them be more sensitive to minority concerns.[12] The NSBS saw its decision on TWU law school within that framework. While understandable, they went too far.

Expert Evidence Opinionated; Not Convincing

Campbell was not impressed with the affidavit evidence of experts put forward by the NSBS to support their contention that they were protecting the public interest by shielding the LGBT community from a “rogue” law school. One of those experts was Dr. Elise Chenier of Simon Fraser University whose expertise is the history of gays, lesbians, and other sexual minorities.[13]  She noted that “the values and practises underlying much of the discrimination were based on Christian theological teachings buttressed by scientific racism.”[14] Her evidence suggested that the government has a role in shaping society and social attitudes.[15] “By legitimizing acts of discrimination, it sends a clear signal to its citizens that discrimination is acceptable and justifiable, and will be defended,” she concluded.[16] Justice Campbell held that statement to be a value statement and noted, “Things are a lot more legally complicated than that view permits.”[17] Campbell described Chenier’s position as one that “would give equality presumptive priority over freedom of conscience and freedom of religion….”[18]

Another expert was Dr. Mary Bryson, a Professor of Sexuality and Gender Studies at the University of British Columbia. Bryson presented evidence that regulatory authorities that enacted or supported discrimination against LGBT professions caused negative impacts on mental health and professional development.[19] She argued, “Such systemic and lifelong harms that represent the effects of the failure of a regulatory authority to sanction TWU’s Community Covenant by recognizing the legitimacy of TWU’s law degree are very serious.”[20]

Justice Campbell rejected that assertion. He was of the view that “[t]here is nothing to support the conclusion that the NSBS would be failing to provide a non-discriminatory environment by recognizing a degree from TWU. Recognizing that degree would not result in any discriminatory action, however broadly defined, taking place in Nova Scotia. The research cited does not allow one to conclude that accepting educational qualifications from a religious school would have any effect on the LGBT community.”[21]

Jurisdiction of the NSBS

After reviewing the expert evidence, Justice Campbell turned his mind to the jurisdiction of the NSBS. He noted that the NSBS’ jurisdiction only begins once an an application is made to practise law in Nova Scotia. At that stage, the NSBS has the authority to make the determination whether the applicant is qualified. The Barristers’ Society agreed that the TWU graduate would be no less willing to comply with the ethical standards regarding LGBT equality rights than anyone else. As to the law degree, the NSBS has no authority to define what is or is not a law degree, [22] but it could prevent a person from practicing law if their degree did not properly train them for practice in Nova Scotia. [23]

Justice Campbell ruled that the NSBS was not regulating the graduate or the law degree but was attempting to regulate the law school itself. Its decision had nothing to do with the qualifications of the students or the quality of the degree.[24] It was clearly outside of its mandate. “The NSBS has no authority whatsoever to dictate directly what a university does or does not do,” said Campbell. Indeed, it could not require TWU to change its Community Covenant any more than it could regulate which professors should be granted tenure, what fees should be charged, or which admissions policies should be implemented.[25]

In short, the Barristers’ Society “cannot do indirectly what it has no authority to do directly.”[26] TWU, like any other law school, can do what it wants and not worry about NSBS regulations. NSBS used its arbitrary definition of “law degree” to impose a penalty on the TWU graduate. The Community Covenant is a non-academic policy subject to the B.C. regulatory regime and “is unrelated to, irrelevant to and extraneous to the practise of law in Nova Scotia.”[27]

Supreme Court Precedent Still Good Law

In 2001, the Supreme Court of Canada addressed a similar case involving TWU’s teaching program, which had been denied accreditation by the British Columbia College of Teachers based on the Community Covenant. The Supreme Court ordered the BCCT to provide accreditation because there was no evidence that TWU students would discriminate against LGBT students in the public school system.

In this case, the NSBS argued that the 2001 decision was no longer good law, or at least not applicable to the facts before it. Justice Campbell begged to differ. “On its face, the TWU v. BCCT decision is very much on point.” [28] On point because, in both cases, (1) the regulatory bodies were required to make a decision about accreditation acting in the public interest; (2) the central concern was about requirements to abstain from behaviour that restricted LGBT students; (3) there was no evidence that a TWU graduate would act in an intolerant or discriminatory manner. However, Campbell recognized that the NSBS argument was “somewhat more subtle” than the arguments of the College of Teachers in the 2001 case. They were not arguing that TWU graduates would be discriminatory. Rather, they were concerned that “accepting a law degree from the institution would amount to condoning discrimination.”[29] It was a matter of public perception.

In a robust manner, Campbell noted that although there has been widespread public acceptance of gay and lesbian rights over the last 14 years, that did not render the 2001 case out of step with current legal thought and social values. The case involved not only gay and lesbian rights but also freedom of religion and conscience. Therefore he concluded,

The conversation between equality and freedom of conscience has not become old fashioned or irrelevant over the last 14 years, and the Supreme Court’s treatment of it can hardly now be seen as archaic or anachronistic. Equality rights have not jumped the queue to now trump religious freedom. That delineation of rights is still a relevant concept. Religious freedom has not been relegated to a judicial nod to the toleration of cultural eccentricities that don’t offend the dominant social consensus.[30]

In the review of the case law since 2001, Justice Campbell concluded that “Religious rights have not been marginalized or in any way required to give way to a presumption that equality rights will always prevail.”[31] There remains in the law significant room for religious freedom and religious expression that offends the secular concerns and equality rights.

Was there a Charter Infringement?

Campbell recognized that the religious faith of Evangelical Christians governs every aspect of their lives, including the study of law. Part of their expression of faith is to associate with those who are of like mind and not only for the purpose of worship:

[Evangelical Christians] gain spiritual strength from communing in that way. They seek out opportunities to do that. Being part of institutions that are defined as Christian in character is not an insignificant part of who they are. Being Christian in character does not mean excluding those of other faiths but does require that everyone adhere to the code that the religion mandates. Going to such an institution is an expression of their religious faith. That is a sincerely held believe and it is not for the court or for the NSBS to tell them that it just isn’t that important. [32]

Therefore, “[r]equiring … TWU amend the Community Covenant in order to have its

degrees accepted in Nova Scotia is an infringement of religious freedom and not a

trivial matter, Justice Campbell held.[33]

Was there a Pressing and Substantial Purpose?

There was no doubt, in Campbell’s view, that dealing with diversity in the legal profession is a pressing and substantial purpose.[34]

Proportionality

Was the means by which the goal is furthered proportionate? This requires that there be a rational connection between the goal and the means used to achieve the goal.

Rational Connection

Campbell held that the decision of the Barristers’ Society to refuse recognition of the TWU law degree was not rationally connected to their stated goal to limit LGBT discrimination. He arrived at that conclusion based on the following reasons.

First, TWU being in B.C. has never been found to be in breach of BC’s human rights legislation, and the Supreme Court of Canada had already reviewed its admission policies. According to Campbell:

It would be the height of provincial arrogance, in both senses of the word ‘provincial’, to suggest that British Columbia has a less genuine respect for human rights values than Nova Scotia. It is a private university. The Charter does not apply to TWU. TWU is not engaging in unlawful discrimination. The fact that the NSBS and the Nova Scotia Human Rights Commission do not like it does not make it unlawful.[35]

 

Second, the argument that allowing TWU graduates to practise law would perpetuate the under-representation of LGBT in legal practise does not hold. TWU’s law school students represent only a 2.4% increase of Canadian law schools.To suggest that this will undermine the goal of increasing the proportion of LGBT in practise is a “stretch.” Even if it did, to make a barrier for Evangelical Christians to increase the proportion of LGBT lawyers “would be so inappropriate and wrongheaded that it could not possibly be what was intended.”[36] Campbell suggested that “A more direct approach would be to directly limit the number of heterosexual articled clerks to reduce the disparity. That is every bit as strange as it sounds. That is not how social progress is achieved in a liberal democracy.”[37]

Third, the argument that NSBS acceptance of TWU graduates would cause LGBT people to suffer is not applicable in this case. Permitting TWU graduates to practise law in Nova Scotia will not open the door to more discrimination[38] nor is there evidence that LGBT people will suffer just because they are aware of TWUs law school existence and accreditation.

Fourth, the NSBS decision is said to be about public confidence. The NSBS feared that accepting the TWU degree would appear hypocritical as they are an equality advocate.  However, Campbell noted that the NSBS decision does not interfere with the protections against discrimination already in place. Further, he explains that the decision is hardly clear and unequivocal in its attempt to fight discrimination of LGBT people as it suggests.[39] It is more of a statement than an absolute prohibition. For example, lawyers who think the same as the TWU Community Covenant are able to practise in Nova Scotia. There is no test for “correct thinking”; they are entitled to believe what they want and can form associations of like-minded lawyers. They do not have to disaffirm religious or other beliefs that are out of step with equality values.[40]

Minimal Impairment

Was there another way for NSBS to deal with the objective? Was there another way to make a statement of its disapproval of TWU policies without infringing religious freedom? Campbell notes that NSBS made “a passing nod to minimal impairment by applying its requirements only to law students.”[41] Its illogical position would allow these students to be taught by professors, other students, and administrators who would be subject to what the NSBS considers discriminatory treatment.[42]

Campbell noted that the NSBS’s decision had a disproportionate effect on TWU and its students to practise their faith. The decision did absolutely nothing to limit LGBT discrimination. It was a statement of disapproval against policies that it did not agree with, which would dramatically take away the right of TWU students who wanted to study in a strict Evangelical Christian environment. It simply could not be justified.[43]

He concluded that a liberal and multicultural society must carve out a place where religions with views that Canadians find incomprehensible or offensive can not only exist but flourish.[44]

The Case of New Brunswick

On January 9, 2015, the Law Society of New Brunswick approved TWU law graduates to practise law by the narrowest of margins. In fact, it would be more accurate to say it was with no margin. On June 27, 2014 the council of the New Brunswick Law Society approved TWU,[45] but the membership demanded the council revisit its decision. On January 9 the motion to revoke the acceptance of the TWU law school ended in a 12-12 tie and thus failed. As it stands, for now at least, TWU graduates will be permitted to practise law in New Brunswick. However, given the activist strain in the legal community, there is no guarantee that it will not be challenged again. Hélène L. Beaulieu, Q.C., FCIP, President of the Law Society of New Brunswick, said,  “This result is indicative of the difficult issue that the Courts will have to decide…The result of the decision demonstrates the difficulty Council was faced with.”[46]

The Future Litigation

Ontario

The Law Society of Upper Canada spent two very long sessions on April 10 and April 24, 2014 discussing the matter. Finally, at the end the April 24th meeting, a vote was held on the following question:

Given that the Federation Approval Committee has provided preliminary approval to the TWU law program in accordance with processes Convocation approved in 2010 respecting the national requirement and in 2011 respecting the approval of law school academic requirements, should the Law Society of Upper Canada now accredit TWU pursuant to section 7 of By-Law 4?[47]

The Benchers rejected the accreditation of TWU by a vote of 28 to 21 with one abstention.[48] Unlike the Nova Scotia Barristers’ Society, the LSUC did not seek Trinity Western University to change its admission policies—it simply rejected TWU law school. No reasons were given. However, the LSUC will be challenged to answer why it has sought to regulate a law school outside of it jurisdiction. TWU will argue the unreasonableness of LSUC to reject the TWU law school when the Federation had already approved it. LSUC will also be challenged on their evaluation of the Charter rights of TWU and its graduates.  The hearing is set for June 2015.

British Columbia

The Law Society of British Columbia on April 11, 2014, approved the TWU law school.[49] However, opposition arose amongst its membership and a special general meeting was called on June 10, 2014. A special resolution (non-binding) was passed directing the Benchers to declare the law school not an approved for the Law Society’s admission program. On September 26, 2014, the Benchers called on the Society to conduct a binding referendum of BC lawyers on the TWU law school. The referendum was conducted throughout October 2014. The final result was a total of 5,951 BC lawyers (74%) who voted in against the law school’s approval and 2,088 (26%) who voted for the approval. On October 31, 2014 the Law Society of British Columbia formally decided not to approve the TWU law school.

TWU filed a petition for judicial review of the Law Society’s decision,[50] and on January 16, 2015 the law society filed its response.[51] We expect the dates for the hearing to be announced shortly. The BC case is different from the others in that the legal issues of religious freedom that underlie TWU’s claim for a law school have been put to a vote of opinion of the members of the law society. It is ironic that the practitioners of law would consider that a fundamental rights—such as religious freedom—could ever be subject to a majority vote. It is something we are not accustomed to in the liberal democracies of Western civilization for fear of the tyranny of the majority.

Conclusion

Campbell’s decision will not be binding in Ontario and British Columbia, but it will have persuasive value. His decision has courageously faced the academic debates that have been raging in Canada’s law journals for the last three decades: the place of religion and equality rights in the context of a secularizing society. There have been a number of academics who have argued that the state has a role in ensuring that equality rights are respected by all members of society, even at the expense of religious scruples. Religion has been portrayed as archaic, anachronistic, superstitious, and lacking in understanding of modern culture.

The secularization theory has argued that as society becomes more secular, religion will fade away. To the chagrin of many, that has not happened. The opposite has occurred—religion continues to flourish in a secular society. Sociologist Peter Berger has noted that while the secularization theory has been laid to rest by many, it still holds strong in the legal and media community.[52] In one sense, it is not surprising that we have experienced a sharp response from the legal profession against TWU’s law school proposal. The proposal solidifies in their mind the archaic nature of religion and religious institutions. To solve the problem of religion, secularization theory holds that public institutions (“public” is broadly defined) must remain secular and religion must be confined within a very narrow place (in churches or houses of worship).

Campbell’s decision is incisive and brilliantly tackles this debate head on. He wisely recognizes the rights of the LGBT community and the work of the NSBS in combating discrimination. The problem has been that those advocating equality rights have assumed that their rights are in the dominant position and are of greater weight than other rights, such as freedom of religion.

The TWU case has placed before the Canadian public a rich and deeply passionate debate of religion and its place in Canadian society. It confirms the tenacious spirit of religious belief and practise. TWU has been courageous. The manner in which it has approached this struggle has been exemplary. The momentum in seeking religious freedom for religious institutions may have been wavering in recent years; however, this decision has renewed hope and given the Christian community a breath of fresh air.

The offense of being offended has been weighed in the balance and found wanting. Should this decision ultimately stand at the Supreme Court of Canada, it will advance and maintain the right of religious communities to practise their faith in an environment that is not afraid to have differences of opinion about human dignity and the common good. The rich tapestry of religious faith that spans this country from the synagogues, the mosques, and the churches from St. John’s to Victoria has been strengthened by this decision. But so too have the rights of the non-religious. The protection of religious freedom is not solely a protection of the religious. We all live on the same piece of real estate. We all have an interest in ensuring that we respect each other and the rule of law. Living together in peace is a testimony to the strength of this country. Campbell’s decision does not in any way take away from the LGBT community any of its gains in the last two decades; rather, it ensures that there is space enough for all.

[1] http://twu.ca/studenthandbook/university-policies/community-covenant-agreement.html

[2] The full decision is found online at: http://www.courts.ns.ca/Decisions_Of_Courts/documents/2015nssc25.pdf

[3] Nova Scotia Barristers’ Society, “Council votes for Option C in Trinity Western University law school decision,” http://nsbs.org/news/2014/04/council-votes-option-c-trinity-western-university-law-school-decision

[4] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11

[5] Paragraph 10.

[6] Paragraph 10.

[7] Paragraph 10.

[8] Paragraph 11.

[9] Paragraph 19.

[10] Paragraph 36.

[11] Paragraph 40.

[12] Paragraph 63-64.

[13] Paragraph 81.

[14] Paragraph 83.

[15] Paragraph 91.

[16] Paragraph 91.

[17] Paragraph 92.

[18] Paragraph 99.

[19] Paragraph 118.

[20] Paragraph 118.

[21] Paragraph 119.

[22] Paragraph 169.

[23] Paragraph 170.

[24] Paragraph 171-173.

[25] Paragraph 174.

[26] Paragraph 175.

[27] Paragraph 178.

[28] Paragraph 193.

[29] Paragraph 194.

[30] Paragraph 196.

[31] Paragraph 200.

[32] Paragraph 230.

[33] Paragraph 237.

[34] Paragraph 241.

[35] Paragraph 245.

[36] Paragraph 247.

[37] Paragraph 247.

[38] Paragraph 253.

[39] Paragraph 264.

[40] Paragraph 258.

[41] Paragraph 266.

[42] Paragraph 267.

[43] Paragraph 270.

[44] Paragraph 271.

[45] http://lawsociety-barreau.nb.ca/en/public/trinity-western-university/background-information/

[46] http://lawsociety-barreau.nb.ca/en/public/trinity-western-university

[47] http://www.lsuc.on.ca/twu/

[48] http://www.lsuc.on.ca/twu/

[49] http://www.lawsociety.bc.ca/page.cfm?cid=3912#sthash.LvJAsJrf.dpuf

[50] http://www.lawsociety.bc.ca/docs/newsroom/TWU-Petition LSBC.pdf

[51] http://www.lawsociety.bc.ca/docs/newsroom/TWU-LawSocietyResponse.pdf

[52] Peter L. Berger, The De-Secularization of the World (Grand Rapids; Eerdmans, 1999) at 34:

There exists an international subculture composed of people with western-type higher education, especially in the humanity and social sciences, that is indeed secularized. This subculture is the principle “carrier” of progressive, enlightened beliefs and values. While its members are relatively thin on the ground, they are very influential, as they control the institutions that provide the “official” definitions of reality, notably the educational system, the media of mass communication and the higher reaches of the legal system.

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Thoughts on Space Enough For All: Nova Scotia Supreme Court Makes Decision on Trinity Western University Law School

  1. Michael Packer

    Thank you, Barry, for this detailed and thorough explanation that I as a lay person can readily understand. Michael Packer

    Reply
  2. Doug Robertson

    Funny before the decision there were lots of articles on the internet against TWU but not to many after. I appreciate your concluding statements and insight on this decision. The first time I read all 143 pages I was surprised
    how the judge kind of put the NSBS in it’s place, I have a feeling lawyers here in BC and Ontario won’t be sleeping well and thinking how did we get into this. I have feeling they’re going to be embarrassed also, we’ll find out this summer. Doug

    Reply
    1. Barry W. BusseyBarry W. Bussey Post author

      Hi Doug, an excellent observation. I have written an article for Convivium Magazine (http://www.cardus.ca/convivium/) that will be coming out soon where I raise similar issues – there has been a blind spot in the legal community on this matter. The blind spot is that they thought equality rights trump all other rights including religious freedom. As Justice Campbell stated in his decision:

      The conversation between equality and freedom of conscience has not become old fashioned or irrelevant over the last 14 years, and the Supreme Court’s treatment of it can hardly now be seen as archaic or anachronistic. Equality rights have not jumped the queue to now trump religious freedom. That delineation of rights is still a relevant concept. Religious freedom has not been relegated to a judicial nod to the toleration of cultural eccentricities that don’t offend the dominant social consensus.

      Reply

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