Contrary to my normal practice on this blog, I would like to provide two short comments on breaking developments, rather than one long comment. This first one concerns an encouraging development in the story of the long fight of a Christian University in Canada to offer law degrees. The second, which will be in a separate post, notes an important recent decision on “religious vilification” in the Australian State of Victoria.
First: in Canada, Trinity Western University is a confessional Christian University in British Columbia, which has for some time been in a debate with Law Societies in Canada over whether its new Law program will be recognised for the purposes of admission to practice in the various Canadian Provinces.
I have discussed TWU and its previous litigation mostly recently here, where links can be found in turn to previous posts and a paper.As I noted there, the factual background is as follows:
Producing law graduates is a worth-while exercise on its own, of course, but even better if one’s graduates can be admitted to practice as lawyers by the relevant professional bodies. TWU obtained general accreditation for its graduates to be admitted to practice in Canada through the Federation of Law Societies of Canada’s Canadian Common Law Program Approval Committee … However, this approval was still subject to an approval process by the separate Law Societies of the Canadian Provinces.
Six Provincial Law Societies have approved TWU graduates being admitted in their jurisdictions. Three, however, have refused: British Columbia, Nova Scotia, and Ontario. Their refusal has been based on the fact that TWU students and staff are required, on commencing at the University, to undertake to comply with a “Community Covenant” reflecting the standards of life expected of those involved in an evangelical Christian institution. One of those standards is that signatories to the Covenant, as well as undertaking to observe other Biblical virtues,
must abstain from various activities, including “sexual intimacy that violates the sacredness of marriage between a man and a woman.” (at para )
This, it is claimed by those opposed to TWU, amounts to discrimination against same sex attracted persons (and of course those who wish to engage in unmarried heterosexual sexual activity.)
In Nova Scotia, an excellent decision by a trial judge upheld TWU’s right to have its students admitted on the ordinary professional grounds applicable across Canada, as against a special resolution and Regulation of the Nova Scotia Barristers’ Society purporting to lay down additional conditions for TWU. In Trinity Western University v Nova Scotia Barristers’ Society, 2015 NSSC 25, Justice Campbell of the Nova Scotia Supreme Court ruled in favour of TWU.
In the most recent decision, Nova Scotia Barristers’ Society v TWU, (26 July 2016, NS Court of Appeal, CA438894) the Court has ruled in favour of TWU on what might be called “administrative law” grounds, holding that the NSBS simply did not have the legal authority to pass the resolution, and to make the regulation, that it made. The Court declined to enter on the more controversial argument as to whether the NSBS decision was also a breach of the religious freedom rights of TWU, or its students, given its decision on the other grounds. (Justice Campbell’s decision at first instance had given a very compelling religious freedom analysis which was in favour of TWU, as well as the administrative law arguments.)
The latest decision is summed up well here by Barry Bussey, writing for one of the interveners in the litigation, the Canadian Council of Christian Charities. As he notes, one of the points that the Court of Appeal made was this:
[T]he Society could not punish a TWU law graduate for the TWU admissions policy that it did not like. Here is how the Court put it: “Trinity Western’s law graduate is not Trinity Western’s alter ego.”
It seems possible that this case, like one that I previously mentioned from Ontario, may be headed for the Supreme Court of Canada for a final decision. It is to be hoped that, as that Court did in its 2001 decision finding that the teaching program at TWU was protected by the Charter’s religious freedom provisions, TWU’s law programs will be similarly protected.