(Photograph from trunews.com)

Last week, Justice Jamie Campbell of the Nova Scotia Supreme Court delivered a scathing indictment of the decision of the Nova Scotia Barristers’ Society (the “Society”) to recognize law degrees for the proposed law school at Trinity Western University (“TWU”) only if TWU changes its “community covenant” against sex outside the confines of a legal marriage between a man and woman. The focus of the Society’s concerns is that the Community Covenant would have the effect of discriminating against members of the LGBT community. His judgment (Trinity Western University v. Nova Scotia Barristers’ Society, 2015 NSSC 25) is the first of what will no doubt be a series of judicial pronouncements on the various provincial law societies’ decision to accredit or not to accredit TWU’s proposed law school. Challenges in British Columbia and Ontario are also well on their way to being heard. Yet again, the collision between equality rights and freedom of religion finds itself on the center stage of Canada’s judicial arenas. The last time this issue went to the Supreme Court of Canada was in 2001 in yet another TWU case, Trinity Western University v. British Columbia College of Teachers, 2001 SCC 31. While the Court held that the Charter was not directly applicable in that case, it did determine that any concerns of the College of Teachers respecting the discriminatory effects against homosexuals were to be subject to the respect for the principles of the religious faith professed by TWU. Justice Campbell does not consider that the time is nigh for that 2001 judicial determination to change.

Justice Campbell opened his judgment by making the following observations:

[1] What one person sees as having the strength of moral convictions is just sanctimonious intolerance to another. As with a lot of things, it depends on perspective. Orthodoxies, secular or religious, can provide the comfort of certainty.

[2] The Nova Scotia Barristers’ Society (the “NSBS”) has said that it will recognize law degrees to be granted by the proposed law school at Trinity Western University (“TWU”) only if the institution changes its policy on student conduct. That policy now prohibits sexual intimacy for students outside traditionally defined marriage. The NSBS sees it as a matter of equality. TWU sees it as a matter of religious freedom.

[3] This decision isn’t about whether LGBT equality rights are more or less important that the religious freedoms of Evangelical Christians. It’s not a value judgment in that sense at all. It is first about whether the NSBS had the authority to do what it did. It is also about whether, even if it had that authority, the NSBS reasonably considered the implications of its actions on the religious freedoms of TWU and its students in a way that was consistent with Canadian legal values of inclusiveness, pluralism and the respect for the rule of law. In that sense, it is a value judgment. I have concluded that the NSBS did not have the authority to do what it did. I have also concluded that even if it did have that authority it did not exercise it in a way that reasonably considered the concerns for religious freedom and liberty of conscience.

[4] The NSBS can only legally do what it has been given the power to do by legislation. It acts under the authority of the Legal Profession Act 1 to regulate the practice of law in Nova Scotia. That act does not give the NSBS the power to require universities or law schools to change their policies. Its jurisdiction does not reach that far.

[5] The NSBS does have jurisdiction to deal with the educational and other qualifications of people who apply to practise law in Nova Scotia. If TWU graduates were not prepared by virtue of their education to practise law in Nova Scotia, or were inclined by virtue of their training at that institution to be intolerant, refusing them admission would not be regulating the law school. It would be regulating the competence of Nova Scotia lawyers.

While Justice Campbell found that the Act did not give the Society the power to do what it had done, he also reviewed the constitutionality of the resolution passed by the Society as well as a subsequent regulation designed to justify and substantiate that resolution. He found that neither passed constitutional muster. Perhaps some of the most interesting aspects of his judgment are found in his section 1 analysis:

[251] I accept the evidence that TWU’s Community Covenant does indeed treat LGBT people in a way that would have profoundly negative effects of their lives. For many or most LGBT people the experience of attending such a place would be traumatic and potentially damaging.

[252] It is very clear that there are systemic and widespread effects of regulatory authorities’ permitting or approving discrimination in institutional settings. Where discrimination is allowed to take place there are of course damaging effects. It is also not surprising that LGBT people suffer when they live in states where they are made to feel unvalued by the formal refusal to recognize equality rights through same-sex marriage.

[253] None of that has application here. The NSBS has taken active efforts to deal with discrimination against the LGBT community. It is simply not allowed within the legal profession in Nova Scotia. This is not in the least analogous to a profession that has failed to take steps to have appropriate policies or a state that has failed to recognize equality rights. Permitting TWU graduates to article in Nova Scotia will not open the door to discrimination in Nova Scotia.

[254] There is an important difference between the failure to regulate against discrimination in the profession and the failure to sanction someone else, somewhere else, for legally exercising a religious freedom. In other words, there is no evidence to support the claim that LGBT people or anyone else in Nova Scotia will suffer psychologically or otherwise if they are aware that TWU students, subject to the same ethical requirements as others, can be admitted to the practice of law in Nova Scotia. That is particularly the case of LGBT people who are reasonably well informed about the relevance of the requirement to respect
religious views and practices. There is no evidence beyond speculation that LBGT people in Nova Scotia are harmed in any way, however slight, by living in the knowledge that an institution in Langley British Columbia, which like any number of religious institutions in Nova Scotia, does not recognize same sex marriage but which properly educates lawyers who can practice law in Nova Scotia, where discrimination within the profession is strictly forbidden.

[255] More fundamentally the decision of the NSBS is about public confidence. Put more starkly perhaps, it is motivated by the question, “What will people think?” If the NSBS allows students from a law school that discriminates against LGB people it will appear hypocritical in light of its strong advocacy for equality
rights. That will have the indirect impact, perhaps, of making LGBT people less likely to want to practice in Nova Scotia. They would in effect be saying, that despite all of the positive work that the NSBS has done the profession in Nova Scotia is no place for LBGT people because it accepts as a law degree a law degree from an institution that discriminates.

[256] This is about a point of principle. It has been made in the context of a history of systemic inequality in the Nova Scotia justice system. Inequality will no longer be tolerated by the bar in Nova Scotia. Human dignity matters. Some would say that it is a matter about which there should be no nuance.

[257] But what doesn’t the statement say? It doesn’t say that the Nova Scotia bar will not accept people who act in ways that fail to respect the equality rights of the LBGT community. It doesn’t need to. The Code of Professional Conduct says that. Lawyers from any law school have to comply. Not accepting a TWU degree will not prevent any more bigoted lawyers from practising here than refusing the accept law degrees from other universities. It is not about what actually happens in Nova Scotia.

[258] It doesn’t keep out lawyers who hold views that are exactly the same as those expressed by the TWU Community Covenant. There is no test for “aberrant” attitudes or “correct thinking”. Lawyers are entitled to believe what they want. They are entitled to form associations of like-minded lawyers. There is no requirement to disaffirm religious or other beliefs that are out of step with equality values. There is no requirement to leave those beliefs at the door of the church, synagogue, temple, mosque or meeting hall, even if those beliefs result in discrimination being systemically practised by the institution of which the lawyer is a member. But if the issue is about perception, what would the public think of a profession that permits lawyers to practice who sincerely believe that same sex marriage is morally wrong, who join organizations that advocate that belief and who form organizations of like-minded lawyers?

…

[263] The NSBS has made serious and meaningful efforts to deal with discrimination and particularly discrimination against LGBT people. This just isn’t one of them.

[264] The NSBS is making a statement about equality and its refusal to allow the cloven hoof of discrimination in the door once again, but as a statement it does nothing to protect the equality interests of LGBT people. It is not rationally connected to the objective or purpose that is pressing and substantial which is redressing systemic discrimination in the profession. If it addresses only the need to make a statement of principle so as to not appear to be hypocritical, that is hardly a pressing and substantial purpose justifying the infringement of a Charter right. If however making such a statement is indeed important, the statement made is hardly clear and unequivocal.

Justice Campbell made the following comments respecting proportionality:

[268] On one side is a statement of principle. On the other a right to religious expression that is directly impaired.

[269] The action by the NSBS does nothing to prevent a single person in Nova Scotia from being the subject of any discriminatory action in relation to the legal profession. No lawyer will be less likely to discriminate and no person will be less likely to be discriminated against because of it. There is no evidence to support the contention that reasonably informed LGBT people will be more or less likely to
find the profession a welcoming one as a result of this particular action. It will not prevent the NSBS from being perceived as hypocritical. It will do nothing whatsoever to improve the status of LGBT people in this province.

[270] The impact on the religious expression would be to require it to be undertaken in a way that significantly diminishes its value. TWU’s character as an Evangelical Christian University where behavioural standards are required to be observed by everyone would be changed. Replacing a mandatory code with a voluntary one would mean that students who wanted to be assured that they could study in a strictly Evangelical Christian environment would have to look elsewhere if they want to practice in Nova Scotia. That impact is direct. The NSBS resolution and regulation infringe on the freedom of religion of TWU and its students in a way that cannot be justified. The rights, Charter values and regulatory objectives were reasonably balanced within a margin of appreciation.

Justice Campbell’s judgment is the first of several salvoes to be shot across the bows of the various provincial and territorial law societies wrestling with the thorny legal…and moral… issues presented by TWU’s application to have its proposed law school be designated an accredited law school. A review of his judgment leads me to believe that the Supreme Court will be making numerous references to it, given the force and conviction with which it was clearly written.

I remain

Constitutionally yours

Arthur Grant