#trinitywesternuniveristy

At hearings on fundamental issues of national importance, it is common to permit interested groups to assist the court in understanding the issues involved. In the judicial review that took place December 16-19, 2014 of the Nova Scotia Barristers’ Society’s (NSBS) 10-9 decision to deny accreditation of Trinity Western law school graduates, eight groups were granted intervener status. In addition to written submissions, the seven groups supporting accreditation were each allotted 20 minutes to make oral submissions on December 17, 2014. Below is a summary of the oral submissions.

Attorney General of Canada

Federal lawyer Jessica Harris provided comments on three matters:

Jurisdiction: NSBS only has jurisdiction to approve articling students into the Nova Scotia bar and had not jurisdiction under the Legal Profession Act to regulate or approve law schools. 

Standard of Review: if question of jurisdiction, should be standard of correctness; if standard of reasonableness, decision was unreasonable because the NSBS did not take into account the lack of any evidence of actual discriminatory conduct from TWU students; and

Reconciling Charter rights: the AG recommended looking to the 2001 Supreme Court of Canada case of TWU v BC College of Teachers as the “best guidance for this court”. 

The AG’s written submissions can be read here.

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Canadian Council of Christian Charities:

CCCC counsel Barry Bussey presented two models for Canada that are being proposed by this litigation: the Diversity Model and the Absolutist Model. Characteristics of the diversity model include recognizing religion contributes to nation building and there is a willingness to accept dissonance between views on fundamental questions (like marriage). The Absolutist Model of “civic totalism” is a all or nothing approach; it rejects autonomy for religious communities and seeks a Canada where equality rights trump religious freedom. This position “effectively moves us from the position that Trinity Western in not for everyone to Trinity Western is not for anyone.” Bussey urged the court to maintain the Diversity Model as the model that better reflects the state of the law and Canadian values of multiculturalism.

Bussey’s speaking notes can be read on the CCCC’s website here.

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Catholic Civil Rights League/Faith & Freedom Alliance:

Lawyer Philip Horgan made a joint submission for CCRL and FFA. Horgan briefly reviews the 2001 TWU v BC College of Teachers case and federal legislation as recognizing no hierarchy of rights and allowing for divergence and disagreement as”authentic pluralism” rather than require conformity of “convergence liberalism”. He referred to it as “distressing” that 10 out of 19 Nova Scotia benchers would disregard the 2001 case as well as did not recognize existing federal law on marriage. Horgan also expressed concern that the meaningful analysis required of a neutral body when balancing rights was not properly undertaken by the NSBS.  He concluded characterizing the community covenant as “a personal commitment to a variety of behaviours animated by self discipline, love of God and love of neighbour… the notion of love is repeated numerous times because that it was it is about, a religious understanding of how we should get along.”

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Justice Centre for Constitutional Freedoms

John Carpay focused submissions for the JCCF on the violation of freedom of association. Quoting Alexis de Tocqueville :

The most natural privilege of man next to the right of acting for himself is that of combining his exertions with those of his fellow creatures and of acting in common with them. The right of association therefore appears almost as inalienable in its nature as the right of personal liberty. No legislature can attack it without impairing the foundations of society.

JCCF submits what is lawful for the individual, cannot then be suppress by the government when done in association with others, particularly in the exercise of constitutionally protected rights. Central to freedom of association is that the group itself gets to determine its membership.

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Association for Reformed Political Action

The ARPA submissions by Andre Schutten focused on the violation of section 15 equality rights, which includes religion as an enumerated ground. According to Schutten, association has been mischaracterized as unlawful discrimination allowing the Charter to be applied as a sword rather than a shield to TWU and its graduates. 

The NSBS brief states at paragraph 95 that by legitimizing acts of discrimination, the state is sending a “clear signal to citizens that discrimination is acceptable and justifiable”. ARPA submits the NSBS decision indeed does perpetuate discrimination on the ground of religion as acceptable and justifiable, whereby citizens belonging to a community with biblical standards no longer have equal access to the public square. The thrust of s.15 analysis is on the effects of discrimination; here the NSBS is bound by the Charter while TWU and its graduates should be shielded by it.

Schutten closes with an apology for rule of law — that everything that is said will be “meaningless blather if there is no rule of law”; that is, that the law cannot be arbitrarily changed or changed quickly and easily on social whims. 

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Christian Legal Fellowship:

Deina Warren presented on how the NSBS decision violates religious freedom and the implications for upholding this decision. Big M Dug Mart regards the Charter as a safeguard for religious minorities “from the threat of the tyranny of the majority”. If this decision stands, Warren states, “freedom of religion will be grossly impaired rather than jealously guarded: it will be limited and restricted, and stripped of its robust nature.” 

CLF highlights the slippery slope this decision represents, asking how there can be a distinction between a TWU law school graduate applying to article versus practicing, lawyers who subscribe to similar beliefs or law students who sign a similar covenant in becoming members to other religious organizations. Warren asks how a two tiered system promotes diversity and asks who is really being sent to the back of the bus in this case.

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Evangelical Fellowship of Canada/Christian Higher Education Canada:

In a joint submission for EFC and CHEC, Albertos Polizogopoulos asked “why are we here?” According to Polizogopoulos, “the issue has been decided” (in TWU v BCCT in 2001) and “if society has changed, the fundamental freedoms set out in the Charter have not.” Polizogopoulos submits the NSBS acted beyond their authority, resulting a decision that is neither correct at law nor reasonable. He also countered the suggestion that institutions do not benefit from freedom of religion with reference to Big M Drug Mart and the more recent Alberta v Hutterian Brethren case in which there was no question over standing, He reminded the court that TWU and its covenant are not “on trial”, but rather the NSBS decision. This decision engaged 5 Charter values to be balanced with setting standards for the qualification of practice of law, the extent of the NSBS authority. 

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Trinity Western has filed applications for judicial reviews of provincial law society decisions to deny accreditation of future law school graduates in Nova Scotia, Ontario and British Columbia. Last week, the first judicial review was heard in the Nova Scotia Supreme Court by Justice Campbell. On Friday, December 19, the Nova Scotia Human Rights Commission (NSHRC) made particularly disturbing comments reminding us why these cases are of such great importance. 

The NSHRC is an independent government agency responsible for administering the Nova Scotia Human Rights Act (NSHRA). Its stated mandate is “to help build inclusive communities and protect human rights in Nova Scotia”. The NSHRC was the only intervener to speak in favour of the Nova Scotia Barristers' Society (NSBS) denying accreditation. Speaking for the NSHRC, lawyer Lisa Teryl noted she was making her submissions “not just to this court, but to the evangelical Christians in the courtroom, on the webcast and in her family". As one such evangelical Christian watching the webcast, I have felt compelled to respond. 

The topic for the NSHRC’s remarks was: “Why evangelical Christians should want the NSHRC’s vision of Canada rather than the one suggested by TWU.” The NSHRA, Teryl claimed, provides “greater freedom of religion” and “greater freedom to participate in every aspect of society”. According to Teryl, evangelical Christians are “complex individuals” with “many needs and desires”, and “due to their uniqueness as human beings they seek greater freedoms than what TWU as an institution and a party here seek”. 

I’m not that complex. I also do not need the NSHRC to tell me what my needs and desires are. 

The NSHRC goes on to explain that evangelical Christians “need a civil society that ensures their Christianity will never be a factor in having less opportunities for full employment, less opportunities for full housing and less opportunities for service.” It was in attempting to articulate how TWU’s existence results in a loss of those opportunities that they really lost me. A plurality of faith-based schools, the argument goes, may result in some schools with codes against evangelical Christians’ religious values and therefore those institutions would not be open to them. So the NSHRC is trying to protect evangelical Christians. “The irony,” Teryl claims, “is that the less secular we are in our general mainstream, the less freedoms an evangelical person has.” 

What freedoms are these? To go to whatever public or private institution we want? Private religious schools already exist for more than one faith. One does not become less free by having more options, even if those are not options that you would consider. Moreover, a state does not become "less secular" by treating religious groups equally; a secular state is areligious not anti-religious. 

The unstated premise undergirding the NSHRC’s comments seems to be that by going to a faith-based institution one’s future acceptance in civil society is limited. One must go to a publicly-endorsed institution in order not to have less opportunities in employment, housing and service. This only rings true, however, if the rest of Canada thinks like the NSHRC. That is, operates on an understanding that at “TWU-like institutions” evangelical Christians only learn how to “hang” within their “Mennonite-type” bubble (these phrases are taken from the submission). According to the NSHRC, the “TWU vision” only works if they can create a self-sufficient society, presumably absorbing all of their graduates. Fortunately, the broader Canadian society has recognized the outstanding quality of education at TWU and has proven far less ignorant than that. 

When venturing beyond the "supportive walls" into the secular world, TWU alumni have thrived. They have thrived around the world, reaching success in every type of vocation imaginable. They have thrived because TWU is not just a place to “hang”.

I chose to complete two degrees at TWU prior to entering law school at University of Toronto, and would do so again in a heartbeat. My years at TWU prepared me in a way that no other institution could. My life goal wasn’t (and isn't) to blend into society to maximize my freedom, so perhaps the NSHRC doesn’t know what’s best for me.

What if, in order to fulfill my goals, I needed an environment where I could understand how my faith interacts with my vocation? What if I desired to focus on character formation alongside the development of my mind? What if I neither needed nor desired to have a government agency “protect me” by taking away my choices?

The NSHRC made clear their objection is with far more than just a law school. They condemn any “carving up” of the secular world with institutions holding religious covenants. An inclusive society, however, need not be uniform. Under the facade of “equal opportunity”, the NSHRC (and NSBS) is seeking to restrict freedom to just one option. A truly “neutral secular” state would not fear a plurality of faith-based institutions, but welcome the diversity. It would ensure academic standards are upheld and leave the rest to the individual, whether that limits or expands their opportunities. It would support individuals in choosing their religious beliefs and the academic institution that helps further their life goals, whether they understand them or not.

The TWU applications for judicial review aren't just about a law school. As the NSHRC has demonstrated, they are about defending a vision of Canada that includes real freedom and real diversity. They are about defending a Canada in which all minority groups have space to develop.

-Jessie Legaree

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It was one year ago that decades of praying and planning came to fruition with the approval of Trinity Western University's proposal for a School of Law. 

As a law student, I had faith in the institutions responsible for accreditation. Surely lawyers could be objective and apply the doctrines I was contemporaneously being taught, regardless of personal feelings. Surely the government would recognize its responsibility for upholding religious freedom and freedom of association, regardless of short term political gain. I was right! Well, sort of.

On December 16, 2013 the Federation of Law Societies of Canada (FLSC) released its approval of the proposal after months of deliberation and the appointment of a Special Advisory Committee, which concluded “there is no public interest reason to exclude future graduates of the TWU program from law society bar admission programs”. Two days later, the Minister of Advanced Education released a statement that he had considered the reports of the Degree Quality Assessment Board and the FLSC and was granting consent to the law school application. 

This principled approach, however, did not last long. 

Since then a wellspring of hostility has dominated the public discourse related to the law school, and the minority status of evangelical Christians, particularly in the legal profession, was revealed. Principle gave way to politics. Provincial law societies rejected the authority of the FLSC to set national standards by voting individually on TWU’s accreditation. Ontario and Nova Scotia rejected TWU’s application. Benchers from the Law Society of BC (LSBC) originally voted 20-7 to accredit the program and then faced a mutiny from its membership resulting in an eventual reversal.

As aptly characterized by Lorna Dueck in her recent article “Trinity Western affair a trial of Canadian civility and tolerance”, it’s David versus Goliath - and yesterday Goliath grew yet another foot.

TWU was engaged in three legal battles with the law societies of Nova Scotia and Ontario, and it was a respondent with the BC government in a challenge by a Toronto civil rights lawyer. As previously posted about, the future of the BC case became uncertain when days before the scheduled December 1st hearing, Minister Virk sent a letter to TWU stating he was considering revoking consent. Since the LSBC decision was overturned in October, his office was under pressure to do the same. Going with the road most travelled, the required consent by the BC government was revoked yesterday.

Where does that leave TWU?

There are currently two active applications for judicial review of the decisions of the law societies of Nova Scotia and Ontario. The Nova Scotia Bar Society review takes place next week, December 16-19. Summaries of the proceedings will be posted on this site each day. The hearing can also be heard beginning at 5:30am (PST) at the following link: http://courts.ns.ca/Webcasts/webcasts_live.htm. The Ontario petition is scheduled to be heard the week of January 19th. The administration is considering further actions. 

Upon receiving “final approval” on December 18, 2013, President Bob Kuhn gave the following statement:

“We are thrilled with this news... With the final approval from the BC Ministry of Advanced Education we can proceed to launch a TWU School of Law that will develop legal professionals equipped to be highly skilled and compassionate practitioners of the future.” President Kuhn added: “It needs to be said that all students (gay or straight) are welcome to attend Trinity Western University, providing they meet our academic requirements and agree to respect our community values. Like most religious communities, we have established a set of values and principles to guide our daily lives; ours are in a manner consistent with Christian teaching. Chief among those values is to show love and respect for all people at all times.”

One year. 

In one year, TWU went from celebrating the opportunity to serve Christian law students to fighting for its right to exist. In one year, the legal profession and the BC government demonstrated how influential and widespread vehement hostility is towards people of faith living out their identities in public. In one year, we learned just how fragile our rights and freedoms are under a cloak of superficial diversity. 

My interest in the TWU accreditation saga is threefold: I'm a TWU graduate, I'm a law student and I love politics. TWU has existed for over 50 years and in 2001 its covenant was upheld by the Supreme Court of Canada as an acceptable expression of the faith principles of the private institution. Anyone can see there are pressures at play regarding their application for a law school that have overshadowed both the law and, often, reasonable discussion. 

During my six years and two degrees focusing on Canadian history and political studies at TWU, I developed a love-hate relationship with the political realm. 

For example, when the BC benchers met in April to discuss accreditation, the transcript is rife with references to the covenant as "abhorrent" and expressions of personal disgust. The vote, however, resulted in 20-7 in favour of accreditation. Why? The law. Seeking to be transparent in reaching their decision (knowing it would be controversial), anyone could watch the live feed of the meeting. No one wanted to be seen to be supporting TWU so they distanced themselves with moral indignation.

Flash forward to the decision to hold a referendum. Benchers obtained an independent legal opinion in July stating that they could not implement the results of the June 10th resolution (to reverse accreditation) unless their understanding of the law has changed or they made their decision in April based on considerations other than the law. Well isn't it nifty that the BC benchers made it abundantly clear they were only accrediting the school because of the law! And anyone who was at the June 10th vote knows the arguments made opposing accreditation were emotionally, not legally, charged. The benchers were in an unenviable position with mounting pressure to reverse their principled decision and no legal out. How'd they get out of this dilemma? Hold a referendum in which they could shift the impending decision to trample on rights out of their hands and praise democracy.

Fascinating, right?!

Now turning to the most recent potential blow to TWU: a letter from the BC Ministry of Advanced Education (Ministry) sent to the school outlining concerns that it will not be able to fulfil the conditions of its program approval, namely that students will not be enrolled by the December 2016 deadline. As is the normal process, the Minister had conditionally approved accreditation upon receiving the approval by the Federation of Law Societies in December 2013. Since then the Ministry has been embroiled in a legal battle led by Toronto lawyer Clayton Ruby. That case will be heard at the BC Supreme Court December 1-5, 2014 - i.e. in less than two weeks. It is no coincidence that TWU was given a deadline of Nov. 28 (the Friday before the trial begins) to make written submission. 

This decision to send this letter was entirely political. This is the part of politics I don't like. The Minister does not want to create a public record by going to trial in 11 days to defend his decision to accredit TWU. It is ridiculous to revoke consent over concerns about the possibility that two years from now, TWU may fail to meet requirements - especially when TWU could open a law school tomorrow with graduates accredited in several provinces. Despite the fact his decision is legally justified, Minister Virk wants to distance himself from a political bomb, just like the benchers. 

Particularly interesting about this move is that while the benchers can hang their constitutionally questionable decision on "accountability to the LSBC membership", one must wonder who is pressuring the BC Ministry of Advanced Education? Purely anecdotally, having been politically engaged since high school (aka a long time ago), I have had the pleasure of getting to know many of the other engaged British Columbians; these are the ones who get involved in their local riding associations and, more importantly, the ones who vote. If Minister Virk opts to rescind accreditation (or "revoke consent" as it is more softly phrased), he will likely lose not gain support for the BC Liberals. 

Lawyers may be powerful and persuasive, but they are certainly NOT representative of the public. 

If it were not for the fact that each of these decisions have very real consequences that set dangerous precedents, the politico in me would be enjoying this incredibly short sighted game. Unfortunately, the longterm implications are detrimental to all of our fundamental freedoms.