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Court says no to roadblock for TWU graduates

Thursday, February 12, 2015 @ 7:00 PM | By Cristin Schmitz


Nova Scotia benchers are expected to decide this month whether to appeal a judgment that overturns their decision to bar future law graduates of Trinity Western University from the province’s bar admission program.

On Jan. 28, Nova Scotia Supreme Court Justice Jamie Campbell allowed TWU’s judicial review application seeking to quash the decision of the Nova Scotia Barristers’ Society last year not to approve the nascent law school and its law degree unless the evangelical Christian university either exempts law students from its faith-based “community covenant” restricting sexual intimacy to one man and one woman who are married, or rewrites the pledge so it does not discriminate against gays and lesbians.

The law society acted unreasonably in interpreting its mandate under the Legal Profession Act to “uphold and protect the public interest in the practice of law,” Justice Campbell held in Trinity Western University v. Nova Scotia Barristers’ Society [2015] N.S.J. No. 32.

“The NSBS has no authority whatsoever to dictate directly what a university does or does not do. The legal authority of the NSBS cannot [be] extended to a university because it is offended by those policies or considers those policies to contravene Nova Scotia law that in no way applies to [the university]. The extent to which NSBS members or members of the community are outraged or suffer minority stress because of the law school’s policies does not amount to a grant of jurisdiction over the university.”

Moreover, even if the law society’s authority to regulate lawyers and the practice of law in Nova Scotia did extend that far, Justice Campbell agreed with TWU that the law society did not properly consider TWU’s Charter rights to freedom of religion and freedom of conscience when the regulator made its decision.

“The NSBS has characterized TWU’s community covenant as ‘unlawful discrimination.’ It is not unlawful,” the judge said. “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. It has not been found to be in breach of any human rights legislation that applies to it.”

Justice Campbell added that 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.”

Justice Campbell said people have the right to attend a private religious university that imposes a religiously-based code of conduct, “even if the effect of that code is to exclude others or offend others who will not or cannot comply with the code of conduct.

“Learning in an environment with people who promise to comply with the code is a religious practice and an expression of religious faith,” he wrote. “There is nothing illegal or even rogue about that. That is a messy and uncomfortable fact of life in a pluralistic society. Requiring a person to give up that right in order to get his or her professional education recognized is an infringement of religious freedom.”

On the other hand, refusing a TWU law degree will not address discrimination against anyone in Nova Scotia, the judge found.

“The NSBS is not the institutional embodiment of equality rights for LGBT people” and its aim to pressure TWU to change its policy on same-sex marriage did not justify, under s. 1 of the Charter, the infringement on TWU’s religious freedom, he held. “It is hardly a pressing objective for a representative of the state to use the power of the state to compel a legally functioning private institution in another province to change a legal policy in effect there because it reflects a legally held moral stand that offends the NSBS, its members or the public.”

Nova Scotia benchers are scheduled to consider the ruling, and a possible appeal, at their Feb. 20 meeting.

“I’m not sure how enthusiastic they would be about appealing, but I don’t know,” said TWU’s Nova Scotia counsel, Brian Casey of Boyne Clarke in Halifax. “It’s a real long bow to suggest that somehow the Barristers’ Society in Nova Scotia can regulate what a university does in B.C.”

The regulator has declined to comment on the judgment.

However, the nascent law school’s executive director, Earl Phillips, called the decision “well-reasoned” and “an encouraging result” that should be persuasive in Ontario’s Divisional Court and in B.C. Supreme Court, where TWU is seeking to overturn similar provincial law society decisions.

“I think the [court’s] decision reflects what we should all want in terms of having an open and free and pluralistic society,” Phillips said.

However, Toronto lawyer Clayton Ruby, who is challenging the now-rescinded 2013 decision of the B.C. government to approve the Langley, B.C.-based law school, does not find the ruling persuasive.

“It has the very latest thinking on equality from 1930,” said Ruby, of Ruby Shiller Chan Hasan. “You are left wondering how it is that going to law school becomes a religious experience merely because, in [TWU’s] view, Jesus would have wanted it to be that way.”

Ruby’s co-counsel, Angela Chaisson, said the judge gave primacy to religious rights over the equality rights of gays and lesbians.

“I question whether Justice Campbell would have come to the same result had the issue been a covenant that prohibited interracial couples, or interfaith couples,” she said.

Chaisson also disputed the holding that the law society acted outside its public interest mandate.