On the Case: Issue 17

Religious Freedom and the return of Common Sense in Nova Scotia

In the last edition of On the Case, Adjunct Associate Professor Barry W Bussey, Director of Legal Affairs of Canadian Council of Christian Charities discussed the decision of the Court of Appeal for Ontario which found against Trinity Western University (TWU)¹. Adjunct Associate Professor Bussey acted for the Canadian Council of Christian Charities, which was denied intervener status in the case in Ontario but granted that status in British Columbia and in Nova Scotia. In this edition of On The Case Adjunct Associate Bussey considers the recent decision of the Nova Scotia Court of Appeal in favour of TWU².

The Background

As explained in the last edition of On The Case TWU is an evangelical Christian university which has a strong commitment to traditional Christian sexual morality. This commitment finds one expression in TWU’s Community Covenant (the Covenant) to which all students who wish to study at the University must subscribe. All students who attend the University must agree to abide by traditional Christian sexual morality. In various forums in Canada the Covenant and the University have been alleged to be discriminating against persons who identify as lesbian, gay, bisexual, transgender and/or queer (LGBTQ).

The Federation of Canadian Law Societies approved TWU’s proposed law degree in December 2013. The Nova Scotia Barristers’ Society (Society) was “discomforted” by TWU’s Covenant which, “in addition to mundane items” noted the Nova Scotia Court of Appeal (Court), “prohibits sexual intimacy outside the marriage between a man and a woman.” After undertaking broad consolation the Society passed a resolution to restrict the ability of TWU graduates to article in Nova Scotia. TWU and a prospective student, Brayden Volkenant, successfully appealed from the Society’s decision to the Supreme Court of Nova Scotia. The Supreme Court found that the Society’s resolution and regulation exceeded its statutory authority and unjustifiably infringed the religious and associated freedoms of TWU and of Mr Volkenant which were guaranteed under Canada’s Charter of Rights and Freedoms (the Charter). This case concerns the Society’s appeal from that decision to the Nova Scotia Court of Appeal.

The Decision

In the opinion of the Nova Scotia Court of Appeal, however “discomforted” the Society may have felt about that Covenant, the Society had no jurisdiction to punish a TWU law graduate in its attempt to punish the University. As the Court put it, “Trinity Western’s law graduate is not Trinity Western’s alter ego.” Well said. The Court’s decision is a helpful reminder of just how out of step the Society became with its campaign of political correctness by overreaching its jurisdiction in an attempt to control the admissions policy of a law school in another province, British Columbia.

When one steps back and considers what the Society tried to do, one cannot but be amazed at the height of hubris. Consider this: a Nova Scotia entity charged with the solemn responsibility to protect “the public interest” in the practice of law, in its province, answered the call of critical academics and activists that the Society must show its disapproval of a British Columbia law school because it is “discomforted” by the religious practice of marriage as being between one man and one woman on that campus. The Society gave itself the jurisdiction to decide that TWU’s Covenant was discriminatory against potential LGBTQ applicants, and that it violated the Charter and human rights legislation and therefore was “unlawful.”

The Court of Appeal rightly rejected the Society’s power grab. In the first place, the Court noted that TWU is a private university, as recognized by the Supreme Court of Canada in 2001, and therefore not subject to the Charter. It was illogical for the Society to suggest that TWU violated the Charter when it is not even subject to the Charter! “Trinity Western did not “unlawfully” violate an enactment that has no application to it,” the Court held.

Further, the Court of Appeal noted that there was no statutory authority for the “Society to issue an independent ruling that someone has violated Nova Scotia’s Human Rights Act.” There was not one “supportive word” in any legislation that gave the Society such authority. Nor, said the Court, was there any ability for the Society to establish its own “court of competent jurisdiction under the Charter with the authority to rule that someone’s conduct in British Columbia unlawfully violated the Charter.”

The Society’s role in protecting the “public interest” in the practice of law is to ensure that a person practicing law has the required “knowledge and skill of a person trained in the law.” To the extent that the Society needs to approve an institution to ensure law graduates obtain the proper education doing so would be within its jurisdiction. What is not in the Society’s bailiwick is to focus on matters at a university not related to the practice of law. By implication lawful religious beliefs and practices are not related to legal practice. Common sense is an apt description for this decision. The Court was not amused that the Society unilaterally declared jurisdiction to govern admissions policies that have nothing to do with the general competence to practice law. If only the Ontario Court of Appeal had followed a similar course³.

It truly is remarkable that TWU has been forced onto this arduous road of legal attrition over an issue already settled by the Supreme Court of Canada. The University has had to fight for its right to practice its religious belief a second time. In 2001 the Supreme Court of Canada ruled in its favour to have an education degree despite its admissions requirements. Today, in 2016, because it desires to have a School of Law the political correct academics and activists have created such an uproar that TWU has had to fight for its constitutionally protected right not on one front but on three separate fronts in three provinces. It is simply ridiculous.

What TWU wishes to do is to continue with its role as a religious university that issues degrees with which its graduates may enter the work force. Something it has done since the 1960s. It has not violated one iota of Canadian law in doing so. But because its religious views on marriage are no longer in vogue it was forced to face this colossal legal barrage. It is time for the harassment of Christian institutions to come to an end in Canada. The law societies show how untrue their claim is that Canada is a country for everyone when they disregard the constitutional protections of religious institutions.

Thankfully, Canada still has courts, like the Nova Scotia Court of Appeal that can see through the legal sophistry and allow common sense to prevail. We now await the soon to be released decision of the British Columbia Court of Appeal. Then off we will, no doubt, go to the Supreme Court of Canada where we will finally see whether its 2001 TWU decision that respected religious freedom is still good law. Hopefully, common sense will prevail there too.

¹ Trinity Western University v The Law Society of Upper Canada (2016) ONCA 518 (accessible at www.ontariocourts.ca/decision/2016/2016ONCA0518.htm). See Barry Bussey, “On the Case: Issue 16 Where the Offended Take Away Religious Freedom” The University of Notre Dame Australia (accessible at www.nd.edu.au/sydney/schools/law/on-the-case/on-the-case-issue-16)
² The Nova Scotia Barristers’ Society v Trinity Western University and Brayden Volkenant (2016) CA 438894 (accessible at www.courts.ns.ca/Decisions_Of_Courts/documents/2016nsca59_000.pdf)
³ See n1 above