The first of a series of decisions that will shape how the balance is to be struck between Canada’s constitutionally protected rights of equality and freedom of religion has held that the latter cannot be unduly interfered with by a private institution.
Recently, a judge of the Supreme Court of Nova Scotia held that the Nova Scotia Barristers’ Society (NSBS), an organization which regulates the legal profession in the Canadian province of Nova Scotia, overstepped its jurisdiction when it decided not to admit students from Trinity Western University (TWU) to the bar.
TWU is a private, Christian university located in the Canadian province of British Columbia. It requires its students, faculty and administrators to sign and abide by the terms of a Community Covenant (the Covenant), which includes a provision to abstain from “sexual intimacy that violates the sacredness of marriage between a man and a woman.” Individuals who breach the Covenant are subject to potential sanction.
In December 2013, TWU received approval from the government of British Columbia to administer a three-year undergraduate law program starting in 2016 (a decision that has since been revoked and is under review). The provision of the Covenant which regulates intimacy has made the proposed law school controversial, since same sex marriage is legal in Canada.
The Canadian Charter of Rights and Freedoms does not apply to TWU’s policies because it is a private university, and the Charter only applies to the actions of government institutions.
Moreover, section 41 of British Columbia’s Human Rights Code law permits private, religious institutions to grant preference to members of an “identifiable group or class of persons” if the organization “is not operated for profit” and has “as a primary purpose the promotion of the interests and welfare of an identifiable group or class of persons.”
In April 2014, the leaders of the NSBS resolved not to accredit graduates from TWU unless the school “exempts law students from signing the Community Covenant” or “amends the Community Covenant for law students in a way that ceases to discriminate.” The decision effectively prohibited future TWU graduates from meeting their requirements for entry into the legal profession in Nova Scotia, barring a change in the school’s policies.
The NSBS subsequently amended the definition of “law degree” in its Regulations, allowing its leaders to deny entry to students who attend institutions which “unlawfully [discriminate] in its law student admissions or enrollment policies or requirements on grounds prohibited by either or both the Charter of Rights and freedoms or the Nova Scotia Human Rights Act.”
In a lengthy decision, Justice Jamie Campbell held the NSBS overstepped its statutory mandate to “uphold and protect the public interest in the practice of law” and “regulate the practice of law” by trying to regulate TWU itself.
Justice Campbell held that NSBS’ actions were “directed toward the institution of the law school and not the quality of the law degree, or the qualification or lack of qualification of the student or potential lawyer in Nova Scotia.” (Paragraph 172)
The judge further explained that the “public interest in the practice of law does not extend to how law schools function. Neither the degree of moral outrage directed toward the policy, nor the extent to which it is deemed to be in the public interest to attack it, change that.” (Paragraph 176)
At the conclusion of the judgment, Justice Campbell addressed the clash of rights at the heart of the matter, stating: “The discomforting truth is that religions with views that many Canadians find incomprehensible or offensive abound in a liberal and multicultural society. The law protects them and must carve out a place not only where they can exist but flourish.” (Paragraph 271)
The NSBS has not determined whether it will appeal the decision. In the meantime, legal proceedings continue in the Canadian provinces of Ontario, and British Columbia, where the respective law societies have outright refused to recognize TWU graduates for bar accreditation.