Reflections on TWU v. Nova Scotia Barristers’ Society
By EFC President Bruce J. Clemenger
Justice Jamie S. Campbell in a 138-page decision ruled that the Nova Scotia Barristers’ Society (NSBS) did not have the authority to refuse to recognize law degrees from the TWU proposed law school unless the university changed its policy on student conduct. The university’s Community Covenant prohibits sexual intimacy outside of the marriage of a man and a woman. He concluded that the “NSBS has no authority whatsoever to dictate directly what a university does or does not do.”
This is the first of three legal challenges to provincial law societies who are objecting to the Covenant and refusing to recognize TWU law degrees unless the Covenant is changed. Law societies in Ontario are B.C. are also objecting to the Community Covenant.
In his decision, Justice Campbell noted that there was no evidence that TWU graduates would not be properly qualified, nor that they would be more likely to discriminate on the basis of sexual orientation than graduates of other law schools. The Federation of Canadian Law Societies, the national body to which provincial and territorial law societies belong, concluded that the proposed law school met the national standards and that it was not contrary to the public interest to approve the law school.
Justice Campbell also noted that the law society recognizes law degrees from American schools that have similar views of sexual morality and marriage, including the University of Notre Dame and Boston College.
TWU is a religious community and is part of the Evangelical Free Church.* It does not require students to affirm the Christian faith. It does, however, require students to sign the Community Covenant by which they agree to adhere to a code of behaviour in keeping with the religious vision of life that animates that university. Harassment, bullying, disrespectful comments or behavior for any reason, including one’s sexual orientation, violate the covenant.
The judge found that the Community Covenant is not unlawful and is not in contravention of human rights legislation in B.C. that applies to it. He wrote:
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. Requiring a person to give up that right in order to get his or her professional education recognized is an infringement of religious freedom.
The Canadian Charter of Rights and Freedoms does not apply to TWU since it is a private institution. However the Charter, which protects individuals and groups from the state, does apply to governmental or quasi-governmental bodies like the NSBS. Government bodies cannot impose beliefs nor can they coerce private institutions to conform to the beliefs of others about sexuality and marriage.
Justice Campbell wrote that the Charter cannot be used as a “tool in the hands of the state to enforce moral conformity with approved values.” He said, “It is not the role of the government” to ensure that those “who hold religious views should be educated by the state in more appropriate secular values to create a moral melting pot.” Rather, a secular government should “neither favour nor hinder a particular belief.” He concluded: “The state through the NSBS does not have the authority to try to coerce them into changing those beliefs so that they conform to those of mainstream society.”
At the heart of a liberal society is the freedom of sub-communities to exist and flourish. Canada is a religiously plural and multicultural society that affirms respect for difference. These communities have a right to self-define and establish their character and ethos. Forming a religious community is a form of religious expression – and requiring a religious community to change its standards would undermine its freedom. Justice Campbell wrote:
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 behavioral standards are required to be observed by everyone would be changed. Replacing a mandatory code with a voluntary one would mean that students who want 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.
Speaking of Evangelicals and why religious communities are so central to the expression of their faith, the judge wrote:
[Evangelical Christians’] religious faith governs every aspect of their lives. When they study law, whether at a Christian law school or elsewhere, they are studying law first as Christians. Part of their religious faith involves being in the company of other Christians, not only for the purpose of worship. They 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 belief and it is not for the court or for the NSBS to tell them that it just isn’t that important.
This decision affirms the right of religious communities to establish and maintain their character and the conduct of their members as an expression of their faith commitment.
*Note: Both TWU and the Evangelical Free Church are affiliates of The Evangelical Fellowship of Canada, which intervened in this court case.
Author:
Bruce J. Clemenger