Canada: TWU’s Successful Judicial Review

Introduction

Nova Scotia has been on the front lines of the debate about the proposed law school at Trinity Western University ("TWU") in British Columbia. Now, the Nova Scotia Supreme Court has become the first Canadian court to release a decision on the contentious issues involved.

In Trinity Western University v Nova Scotia Barristers' Society, 2015 NSSC 25, Justice Jamie Campbell found in favour of TWU, concluding that the Nova Scotia Barristers' Society ("NSBS") overstepped its authority by imposing conditions before future TWU law graduates could practice law in this province.

In doing so, he concluded that the NSBS improperly interfered with religious freedom. (See e.g. paras 3 and 18.)

As is well known, TWU requires all students to sign its "Community Covenant." Justice Campbell paraphrased the contentious provision of the Community Covenant, which relates to sexual activity:

[34]  The Community Covenant bans all sexual intimacy outside the traditional marriage between a woman and a man. In other words, TWU does not recognize same-sex marriage. TWU does not ban LGBT students. It does not limit the sexual activity of unmarried LGB students any more than it purports to regulate the sexual activity of unmarried non-LBG students. But, significantly, it does not recognize that LGB people can be sexually intimate even if they are legally married.

The following excerpt encapsulates Justice Campbell's ultimate conclusion: The Nova Scotia Barristers' Society could not refuse to recognize TWU law degrees on the basis that the Community Covenant was discriminatory against LGBTQ students. This was despite the NSBS's argument that it was acting in the public interest:

[176]   Recognizing a degree from a law school that "unlawfully discriminates" is argued to be not in the public interest. 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. It does not expand the NSBS authority into areas where it would otherwise not have jurisdiction.  It does not act as a self-standing grant of jurisdiction.

[Emphasis added.]

What was under judicial review

TWU's application for judicial review challenged two actions of the NSBS: A resolution it passed in April 2014, and a regulation that it amended as a consequence of that resolution, in July 2014 (together, "the NSBS decision"; see para 61).

Both the resolution and regulation were adopted after the Federation of Law Societies approved TWU's proposed law program (see paras 48-49).

First, the resolution. NSBS Council resolved that it would not approve TWU's law school unless law students were exempted from the Covenant, or the Covenant was amended (para 57):

Council accepts the Report of the Federation Approval Committee that, subject to the concerns and comments as noted, the TWU program will meet the national requirement; Council resolves that the Community Covenant is discriminatory and therefore Council does not approve the proposed law school at Trinity Western unless TWU either;

exempts law students from signing the Community Covenant; or

amends the Community Covenant for law students in a way that ceases to discriminate.

Council directs the Executive Director to consider any regulatory amendments that may be required to give effect to this resolution and to bring them to Council for consideration at a future meeting.

Second, the regulation. The subsequent regulatory amendments changed the definition of "law degree" to permit NSBS Council to exclude degrees from a law school that discriminated in its admission or enrollment criteria (see para 60). For common law degrees, the regulation was amended to read:

ADMISSIONS

3.1 Interpretation

In this Part

...

(b) "law degree" means i) a Bachelor of Laws degree or a Juris Doctor degree from a faculty of common law at a Canadian university approved by the Federation of Law Societies of Canada for the granting of such degree, unless Council, acting in the public interest, determines that the university granting the degree unlawfully discriminates in its law student admissions or enrolment policies or requirements on grounds prohibited by either or both the Charter of Rights and Freedoms and the Nova Scotia Human Rights Act;1

The record

There was an extensive evidentiary record in this case, much of it characterized as "legislative facts or social science evidence" (para 26). Justice Campbell noted that it can be "tedious and time-consuming" for a trial judge to sift through this kind of material (para 27), but he nevertheless reviewed several categories of evidence, going to TWU's doctrinal stance; the NSBS's historical and ongoing initiatives to advance equity within and outside of the legal profession; the evolution of the NSBS's regulatory scheme; discrimination against the LGBTQ community; and the meaning of evangelical Christianity.

Parts of the decision read like an academic paper. For example, the concepts of "minority stress" and "dialectic" are used throughout. Interested readers are encouraged to review the entire decision to get the full flavour and to appreciate Justice Campbell's comments on the competing "moral judgments" in the case (see e.g. paras 272-274).

The balance of this post will focus on the legal analysis as much as possible: What steps did Justice Campbell take to reach the result he did?

The legal analysis

There were two legal issues for the Court to determine: The administrative law question about the NSBS's statutory and regulatory authority, and the constitutional question about the Charter rights at issue.

After a lengthy discussion about the proper standard(s) of review, the Court settled on reasonableness for both issues (see paras 159 and 164-165).

(1)  The administrative law issue

Justice Campbell framed this question as "whether the NSBS, in refusing to accept a law degree from TWU, was attempting to regulate a law school"—an area outside its authority—or "was upholding and protecting the public interest in the practice of law in Nova Scotia," which would be within NSBS authority (para 128).

The essence of the Court's decision on question one was that the NSBS was attempting to regulate the internal policies of TWU but had no statutory or regulatory authority to do so, even if it purported to be defending and promoting the public interest. In Justice Campbell's words: "The NSBS cannot do indirectly what it has no authority to do directly" (para 175; bolding added). The necessary link between TWU and the practice of law in Nova Scotia was just not there, on the Court's analysis.

Justice Campbell distinguished three issues: The competence and capability of law graduates seeking admission to the Nova Scotia Bar; the quality of a law degree; and a law school's policies. The NSBS could regulate on issues relating to the first two categories, but not the third. (See para 167.)

Instead of regulating the quality of a law degree and/or the abilities of TWU law graduates applying to practice in Nova Scotia, Justice Campbell found that the NSBS was purporting to regulate TWU itself because of its focus on the Community Covenant (paras 5-7; paras 166-168). However, the NSBS had no statutory authority to regulate the inner workings of any law school, in or outside of Nova Scotia (para 173).

As Justice Campbell put it (para 174):

The NSBS has no authority whatsoever to dictate directly what a university  does or does not do. It could not pass a regulation requiring TWU to change its Community Covenant any more than it could pass a regulation purporting to dictate what professors should be granted tenure at the Schulich School of Law at Dalhousie University, what fees should be charged by the University of Toronto Law School, or the admissions policies of McGill.

He stated further (para 178; emphasis added):

The Community Covenant, a non-academic policy at a university that is subject to the regulatory regime in British Columbia, is unrelated to, irrelevant to and extraneous to the practice of law in Nova Scotia. The fact that people in Nova Scotia are troubled by it does not make directing a regulation to it any less the regulation of university policy.

Amending the definition of "law degree" in the Regulations did not bring the matter within NSBS authority. Instead, the Court found that this approach was a colourable attempt to effect policy change at TWU, to "do indirectly" what it could not do directly (para 170):

Deeming it to not be a law degree unless something unrelated to the law degree is changed is perhaps a clever way to extend the reach of the NSBS. But for the NSBS to say that it is just defining a law degree would mean that its definition of law degree would have to be an entirely arbitrary turning on and off of the definition based on considerations entirely unrelated to the definition. That's not regulating a law degree. It's using the law degree to get at something else.

(See also paras 171-176.)

Returning to the reasonableness standard of review, Justice Campbell found it unreasonable for the NSBS to act as if it had authority under the Legal Profession Act "to refuse to accept a law degree from TWU unless TWU changed [its] Community Covenant" (para 181).

(2)  The constitutional law issue

Here, the Court had to determine "whether the NSBS appropriately considered and applied the balancing of the Charter rights to equality and freedom of religion" (para 129). If the nub of the Court's decision on the second issue could be summed up in one sentence, it may be this one: "Equality rights have not jumped the queue to now trump religious freedom" (para 196).

It was also key to the analysis that TWU was not a state actor for Charter purposes, but the NSBS was. According to Justice Campbell, TWU did not have a constitutional obligation to protect the equality rights of its potential law students, but the NSBS had a constitutional obligation to respect their religious freedom. (See paras 9-10.)

Several Supreme Court of Canada cases factored into Justice Campbell's Charter reasoning (including, not surprisingly, R v NS, 2012 SCC 72, [2012] 3 SCR 726 and Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395). But it was the Supreme Court's decision in Trinity Western University v College of Teachers, 2001 SCC 31, [2001] 1 SCR 772 that most clearly hovered over this case.

Briefly, the majority of the Court in that case had concluded that the BC College of Teachers had considered irrelevant factors when it denied certification to a revamped teaching program at TWU, on the assumption that graduates would exhibit discriminatory practices. The result meant the TWU program could go ahead as planned. Did that result determine this one?

Justice Campbell said Trinity Western was distinguishable in some respects, but had "not been overtaken by other developments and is not an expression of outdated concepts involving the intersection of rights" (paras 207-208).

And, in this case, the NSBS decision interfered with the religious freedom of TWU students. Justice Campbell accepted the importance of evangelical Christian students being surrounded by those who shared their beliefs and worldviews (para 230). It would substantially affect these students if the Community Covenant was no longer mandatory (paras 232-236):

The mandatory covenant is part of what makes TWU a distinctly Evangelical Christian institution. It is easy for outsiders to point out aspects of a faith and practises of that that do not seem that important. We don't get to make that call.

By indirectly urging TWU to change its policy vis-à-vis the Covenant, the NSBS was interfering with religious freedom (para 237):

Requiring that TWU amend the Community Covenant in order to have its degrees accepted in Nova Scotia is an infringement of religious freedom and not a trivial matter.

There may have been intersecting rights, but according to the Court they were not conflicting rights (para 239; emphasis added):

The NSBS actions were taken in support of the rights of LGBT people but at the same time, this is not a situation in which there even are conflicting rights. The passing of the resolution and the regulation by the NSBS were not in themselves the exercise of equality rights. They were aimed at supporting equality rights but not in and of themselves manifestations of the exercise of those rights.

It may be seen that Justice Campbell adopted a specific interpretation of what the NSBS was trying to do, characterizing the NSBS decision as a "statement of principle to stand in solidarity with LGBT people" (para 16) rather than an "exercise of equality rights."

The purpose of the impugned action must be considered in a Charter analysis. Justice Campbell agreed that the NSBS's goal of addressing "diversity in the legal profession" was "pressing and substantial" (para 241). However, the NSBS decision was not rationally connected to that goal (para 244). Essentially, the NSBS was so concerned about public confidence in the legal profession that it inappropriately imposed a virtual "quota system" (para 247).

Furthermore, it was inconsistent for the NSBS to target TWU degrees when lawyers from any other university, in Canada or internationally, could hold similar views (paras 258-261) but have no similar impediment to Bar admission. Similarly, TWU graduates themselves could potentially get called to the Bar in another province and then transfer to Nova Scotia through the mobility agreement, thus circumventing the regulation (para 262).

Justice Campbell categorically refused to accept that the NSBS resolution and regulation would, or could, play any role in alleviating discrimination in Nova Scotia (the NSBS had argued that "accepting a law degree from the institution would amount to condoning discrimination": para 194). For example, he stated (para 209):

It is not about anyone being discriminated against in Nova Scotia but about the profound sense of hurt that people feel when witnessing discrimination elsewhere and the compounding of that hurt by the NSBS being seen as approving of it.

And further (para 269):

The action by the NSBS does nothing to prevent a single person in Nova Scotia from being the subject of any discriminatory action in relation to the legal profession. No lawyer will be less likely to discriminate and no person will be less likely to be discriminated against because of it. There is no evidence to support the contention that reasonably informed LGBT people will be more or less likely to find the profession a welcoming one as a result of this particular action. It will not prevent the NSBS from being perceived as hypocritical. It will do nothing whatsoever to improve the status of LGBT people in this province.

As a result, the NSBS decision infringed Charter rights and values, could not be justified, and was therefore (presumably) unreasonable (para 270).2

What next?

Justice Campbell did not set out the exact consequences of his decision (e.g. is the definition of "law degree" in the Regulations struck down?), and it is unclear what the immediate effect will be in Nova Scotia. However, TWU has not even opened its law school yet, so there is no urgency in that sense.

It will not be surprising if the NSBS appeals – and, in fact, Justice Campbell assumed his decision would be appealed (see para 149). There are other court challenges on the go elsewhere in Canada, so neither will it be surprising if this matter ends up at the SCC before too long.

In other words, the debate about the fate of TWU's proposed law school may not be over yet.

1 Regulations made pursuant to the Legal Profession Act, SNS 2004, c 28, online: Nova Scotia Barristers' Society http://cdn2.nsbs.org/sites/default/files/cms/menu-pdf/currentregs.pdf (amended to 18 November 2014).

2 Justice Campbell concluded: "The rights, Charter values and regulatory objectives were reasonably balanced within a margin of appreciation." Based on his analysis leading up to that point, it is assumed he meant to say that they were "not" reasonably balanced.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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