February 7, 2014
J. René Gallant
President, Nova Scotia Barristers’ Society
Cogswell Tower, 800–2000 Barrington Street
Halifax, NS B3J 3K1 via email: equity@nsbs.org
Dear Mr. Gallant:
RE: TRINITY WESTERN UNIVERSITY SCHOOL OF LAW
The Nova Scotia Barristers’ Society (NSBS) has decided to review the issue of whether it will permit graduates of Trinity Western University’s (TWU) proposed school of law to acquire membership in the NSBS, to practice law within the requirements of the Rules of Professional Conduct. In that regard, I have a series of questions to which I would appreciate reply.
To establish a framework for my questions, I will outline the context in which they are asked through a brief reflection on my understanding of the law and the status of the TWU law school proposal.
TWU’s proposal for a new Canadian law school was considered under the accreditation guidelines established by the Federation of Law Societies of Canada (the Federation), which also convened a Special Advisory Committee to review TWU’s Community Covenant and its application in regard to the potential new school. The Committee also received many submissions, considering them in light of Canadian law and the accreditation guidelines. The Committee and Federation approved of the proposal presented by TWU.
TWU also received approval from the British Columbia Ministry of Advanced Education to grant the degree Juris Doctor (J.D.).
Those reviews and approvals are in place, bringing us to the point where some Canadian provincial law societies have determined to conduct their own reviews to determine whether they will admit graduates of the TWU law school to the practice of law in their respective jurisdictions.
The issues now being considered by the NSBS appear already to have been settled by the Supreme Court of Canada (SCC), Parliament, the various human rights codes and acts applicable in each province and the existing practices of every Law Society in this country.
In 1994, the SCC determined what has become the definitive position of the Court on the matter of competing rights in
Dagenais v. CBC. When two protected rights come into conflict,
Charterprinciples require a balance to be achieved that fully respects the importance of both rights. A hierarchical approach to rights must be avoided.
In 2001, the SCC applied these principles in
Trinity Western University v. College of Teachers. Among other things, the court concluded that:
- If TWU’s community standards could be sufficient in themselves to justify denying accreditation, it is difficult to see how the same logic would not result in the denial of accreditation to members of a particular church. (para. 33)
- The diversity of Canadian society is partly reflected in the multiple religious organizations that mark the societal landscape and this diversity of views should be respected. (para. 33)
- Consideration of human rights values in these circumstances encompasses consideration of the place of private institutions in our society and the reconciling of competing rights and values. Freedom of religion, conscience and association coexist with the right to be free of discrimination based on sexual orientation. (para. 34)
- The Human Rights Act … (now the Human Rights Code)… provides … that a religious institution is not considered to breach the Act where it prefers adherents of its religious constituency. It cannot be reasonably concluded that private institutions are protected but that their graduates are de facto considered unworthy of fully participating in public activities. (para. 35)
- There is nothing in the TWU Community Standards that indicates that graduates of TWU will not treat homosexuals fairly and respectfully. Indeed, the evidence to date is that graduates from the joint TWU-SFU teacher education program have become competent public school teachers, and there is no evidence before this Court of discriminatory conduct by any graduate. (para. 35)
- Students attending TWU are free to adopt personal rules of conduct based on their religious beliefs provided they do not interfere with the rights of others. Their freedom of religion is not accommodated if the consequence of its exercise is the denial of the right of full participation in society. (para. 35)
There is, in fact, no evidence to suggest that these conclusions of the court have borne out to be false or that they would not be equally applicable in the instance of a law school.
The Court states at paragraph 36:
Instead, the proper place to draw the line in cases like the one at bar is generally between belief and conduct. The freedom to hold beliefs is broader than the freedom to act on them. Absent concrete evidence that training teachers at TWU fosters discrimination in the public schools of B.C., the freedom of individuals to adhere to certain religious beliefs while at TWU should be respected. The BCCT, rightfully, does not require public universities with teacher education programs to screen out applicants who hold sexist, racist or homophobic beliefs. For better or for worse, tolerance of divergent beliefs is a hallmark of a democratic society.
Which, in the current context, might be considered as:
Instead, the proper place to draw the line in cases like the one at bar is generally between belief and conduct. The freedom to hold beliefs is broader than the freedom to act on them. Absent concrete evidence that training
lawyers at TWU fosters discrimination in the practice of law
(in accordance with the Rules of Professional Conduct), the freedom of individuals to adhere to certain religious beliefs while at TWU should be respected. The
NSBS, rightfully, does not require public universities with
law school programs to screen out applicants who hold sexist, racist or homophobic
(or anti-religious) beliefs. For better or for worse, tolerance of divergent beliefs is a hallmark of a democratic society.
In the 2004 SCC decision in
Reference re Same-Sex Marriage, the Court reinforced the principles expressed in
Dagenais and
Trinity Western, noting:
52 The right to same-sex marriage conferred by the
Proposed Act may conflict with the right to freedom of religion if the Act becomes law, as suggested by the hypothetical scenarios presented by several interveners. However, the jurisprudence confirms that many if not all such conflicts will be resolved
within the
Charter, by the delineation of rights prescribed by the cases relating to s. 2(
a). Conflicts of rights do not imply conflict with the
Charter; rather the resolution of such conflicts generally occurs within the ambit of the
Charter itself by way of internal balancing and delineation.
53 The protection of freedom of religion afforded by s. 2(
a) of the
Charteris broad and jealously guarded in our
Charter jurisprudence. We note that should impermissible conflicts occur, the provision at issue will by definition fail the justification test under s. 1 of the
Charter and will be of no force or effect under s. 52 of the
Constitution Act, 1982. In this case the conflict will cease to exist.
Taking this advice from the Court, Parliament spelled out in the
Civil Marriage Act that there should not be discrimination against an individual or group on the basis of holding an opinion on marriage that differs from the legal definition in the
Act, including opinion founded in religious belief. The preamble includes:
WHEREAS nothing in this Act affects the guarantee of freedom of conscience and religion and, in particular, the freedom of members of religious groups to hold and declare their religious beliefs and the freedom of officials of religious groups to refuse to perform marriages that are not in accordance with their religious beliefs;
WHEREAS it is not against the public interest to hold and publicly express diverse views on marriage;
And, the body of the
Act further states:
3.1 For greater certainty, no person or organization shall be deprived of any benefit, or be subject to any obligation or sanction, under any law of the Parliament of Canada solely by reason of their exercise, in respect of marriage between persons of the same sex, of the freedom of conscience and religion guaranteed under the
Canadian Charter of Rights and Freedoms or the expression of their beliefs in respect of marriage as the union of a man and woman to the exclusion of all others based on that guaranteed freedom.
In this context, a number of questions arise including the following:
- Is the NSBS withdrawing from the agreements made with the Federation in regard to National Admissions Standards? If so, what position is the NSBS taking?
- Is the NSBS withdrawing from the agreement made with the Federation in regard to National Mobility of the Legal Profession? If so, what restrictions will be placed on mobility by the NSBS?
- Is the NSBS considering a position that would establish a hierarchy of rights rather than a balancing of rights? If so, please describe the intended hierarchy and how it is anticipated to comply with the decisions of the Supreme Court of Canada in regard to interpretation of the Canadian Charter of Rights and Freedoms.
- Is the NSBS proposing to establish an admission standard that excludes those who hold a position on marriage that is contrary to whatever position is approved by the NSBS at any given time? If so, please describe the NSBS’s current position on marriage.
- If the NSBS is proposing to establish an admission standard based on position on marriage, what action does it propose in regard to current members who hold a position on marriage similar to that of TWU?
- Is the NSBS proposing to establish an admission standard based on religious beliefs and practices? If so, please describe how that standard will align with the decisions of the Supreme Court of Canada on the right to “freedom of religion” and with the Human Rights Act of Nova Scotia.
- If the NSBS is proposing to establish an admission standard based on religious beliefs and practices, what action does it propose in regard to current members who hold religious beliefs and engage in religious practices that will become new standards for non-admissibility to the practice of law in Nova Scotia?
- If the NSBS determines it will not admit graduates of TWU’s law school to the practice of law in Nova Scotia, will it hold a similar standard for graduates of other law schools who have previously attended faith-based universities? Faith-based high schools? Faith-based foreign law schools? Or, who share the same religious beliefs and practices of TWU students? If so, please provide details of the NSBS’s position.
I look forward to your response.
Yours sincerely,
Don Hutchinson
Vice-President, General Legal Counsel
The Evangelical Fellowship of Canada