British Columbia’s Trinity Western University (TWU) argued Dec 16 in Nova Scotia’s Supreme Court that the Nova Scotia Barristers’ Society (NSBS) did not have the authority to refuse to approve the university’s proposed law school.
The society’s council decided April 25 that TWU students would need to meet national requirements for skills and knowledge to be licensed to practise law. It did, however, say TWU would have to drop its community covenant prohibiting same-sex intimacy before graduates from the school would be allowed to enroll in the province’s bar admission program.
For admission to TWU, students must sign a covenant agreeing to uphold Christian biblical teachings, including no premarital sex and no homosexuality. Failure to uphold these commitments, according to the student handbook, could result in discipline, dismissal or a refusal to readmit a student to the university.
In its brief to the court, the NSBS argued that, while Canada’s Charter of Rights and Freedoms protects freedom of religion and association, it does not require the society to support conduct that discriminates against others. TWU lawyer Brian Casey told Justice Jamie Campbell that the issue is not whether the university discriminates against members of the LGBT community, but rather if a TWU graduate is qualified to practise law in the province.
“Those who hold evangelical beliefs are not singled out,” the NSBS brief states. “Instead, it is the law degree from schools that engage in discriminatory conduct that is singled out.”
In its brief to the court, TWU argued that NSBS couldn’t refuse to recognize a graduate’s “otherwise appropriate legal education because of the religious foundation of the law school, or the fact that while in law school the graduate associated with others who share the graduate’s religious beliefs.” Whether something is considered discriminatory is a question of law, Casey continued. “You can’t take a vote on it, which is what the barristers’ society has done here.”
Casey said that what the NSBS has done amounts to holding prospective lawyers, who could be qualified to practise, effectively and ethically responsible for the actions of their law school. “The barristers’ society has no authority to refuse students because of their law school’s conduct,” Casey said. “The Supreme Court of Canada has decided . . . the Charter does not apply to Trinity Western. It’s not open to the barristers’ society to reach a different conclusion.”
A brief from the federal Department of Justice backed Casey’s argument.
“The Legal Profession Act does not provide the NSBS with the statutory authority to approve law schools,” the Justice Department’s brief states. “It is unreasonable to assume that such prospective counsel will necessarily engage in discriminatory practices as lawyers simply because they sincerely hold religious beliefs that are incorporated in the mandate of the university they attend.”
Citing the 2001 Supreme Court of Canada decision in Trinity Western University v British Columbia College of Teachers, Casey said the covenant is not unlawfully discriminatory. There, the Supreme Court of Canada upheld TWU’s right to teach Christian values to would-be teachers and to insist that incoming students sign its covenant. The high court found the university’s teacher-program graduates are entitled to hold “sexist, racist or homophobic beliefs” as long as they don’t act on them in the public school classrooms to which they might be assigned.
“Trinity Western welcomes gays,” Casey added. “It welcomes people in the LGBTQ community. They just require them to abide by the covenant.” And, he noted, nobody has been expelled from the university because of the covenant. “It’s not like we have cameras in the bedrooms to see what’s happening.”
Moreover, the NSBS was required to remain neutral in its decision-making, something he asserted had not happened in the TWU case. “It’s not entitled to promote one view of marriage over another,” he said. “It has to do both.” If there are problems in the way licensed lawyers treat members of the LGBT community, those are addressed by society regulations, he added.
The NSBS brief said that in seeking regulatory approval, TWU had moved from the private sphere, where some discrimination may be permitted on religious grounds, to the public sphere, where different rules and obligations exist. The NSBS argued the case is about a public-interest regulator with a mandate to promote equality and diversity endorsing a law-school admission policy that asks students to denounce their constitutionally protected sexual orientation in exchange for a law degree. “The case is about the society’s role and obligation to ensure equal opportunity to access to the legal profession and, ultimately, the judiciary to historically disadvantaged persons,” the NSBS brief said.
Casey said not many LGBT students would attend the school. To prevent the school from graduating dozens of law students on the basis that one gay student might be affected by the admissions policy is disproportionate, he told the court.
He said the university has graduated 24,000 people, all of whom have signed the covenant. “None of them are asked to affirm Trinity Western’s theological beliefs, but all of them are asked to respect Trinity Western’s covenant for the time they are students,” Casey said.
Casey further argued that the NSBS was acting beyond its authority under the province’s Legal Profession Act and the Human Rights Act. As TWU’s actions in question occurred in British Columbia, the NSBS had no authority to attempt through its rejection of the TWU school to impose Nova Scotia’s laws in British Columbia, he said. Nowhere in Nova Scotia’s Legal Profession Act are law schools mentioned; rather, there are requirements for lawyers, he noted.
Casey said that while TWU already graduates nurses and teachers, there has been no evidence that any harm has arisen from those graduates working in their professions.
Justice Campbell asked Casey whether the case would be the same if the issue involved black and white students. “If that was the case, we wouldn’t be here,” Campbell said. “We wouldn’t even be talking about this.” If the barristers’ society accepts TWU graduates, prospective gay lawyers might not feel welcome in the profession in the province, he suggested.
Casey said TWU has a constitutional right to believe that sexual intimacy should be reserved for a married opposite-sex couple. “There’s no similar protection for racism,” Casey said.
The NSBS is expected to make its submissions to the court Dec 17. After that, a number of intervenors, including the attorney-general of Canada and various civil society and religious organizations, will address the court.
The case continues through Dec 19.
BC’s minister of advanced education revoked his approval of the law school Dec 11 following a reversal of the Law Society of British Columbia’s approval Oct 31. That revocation led to the end of a case brought by prospective Vancouver law student Trevor Loke against the ministry.
A challenge to the refusal of Ontario’s Law Society of Upper Canada to approve graduates to practise is outstanding, and it remains to be seen whether TWU will file suit against the BC law society and the Ministry of Advanced Education.