Freedom of religion wins case: N.S. Supreme Court shoots down ban on accreditation of Trinity Western law grads

Should freedom of religion extend to the study of law?
Should freedom of religion extend to the study of law?  (Photo: Evelyn Brotherston)

You don’t have the right not to be offended, but you do have the right to freedom of religion.

So ruled the Nova Scotia Supreme Court last week, when it struck down the Nova Scotia Barristers’ Society’s ban on allowing graduates of Trinity Western University’s proposed law school to practice law in the province.

The society, under the Legal Profession Act, regulates the practice of law in the province and made the ruling in April 2014.

At issue was the British Columbia school’s “Community Covenant,” an agreement that all students sign, committing to uphold a myriad of Christian values. The covenant encompasses topics from alcohol and drug abuse to a call to uphold Christian virtues such as humility and compassion.

Cindy Renkema, a Trinity Western nursing student, said that for her signing the commitment was not difficult because “it was already aligned with my own beliefs.”

“I believe that this agreement supports Biblical values and increases the respect and value that each member places on each other, putting others first selflessly. It sets the students up for success in their academic and personal lives.”

However, the society expressed concern about one section of the covenant, which urges abstinence from extra-marital sex, in which the traditional definition of marriage – between one man and one woman – is upheld.

The society said it would allow law graduates to practice in Nova Scotia only if the school changed this section of its policy on student conduct. It argued that the section was a “discriminatory code,” against LGBT students.

Justice Jamie Campbell, however, found that the society “did not have the authority to do what it did.”

Even if it did, he said, it had not exercised its authority with any consideration for religious freedom and liberty of conscience.

While the society regulates the practice of law, it does not have the power to require universities or law schools to change their policies.

“If TWU graduates were not prepared by virtue of their education to practice law in N.S., or were inclined by virtue of their training at that institution to be intolerant, refusing them admission would not be regulating the law school, it would be regulating the competence of N.S. lawyers,” said Campbell.

He upheld a decision by the Federation of Canadian Law Societies that agreed that graduates of Trinity Western’s proposed law school would be properly qualified, and “would be no more likely to discriminate than graduates of other law schools.”

The society, Campbell suggested, was in the position of arguing that, “an otherwise qualified person would be deemed not qualified. The reason would not relate in any way to the law degree, to that person’s ability or to his or her suitability to practice law. It would not be because of anything other than the university policy to which the NSBS objects.”

He pointed out this objection would be no different than deeming a law degree invalid based on any number of different university policies, such as tuition, quotas or tenure policies.

The fact that NSBS took offense to TWU’s policy does not, in Campbell’s ruling, mean that they should be given jurisdiction over the university.

It may be offensive to some to uphold a traditional view of marriage, Campbell said, “but it is not unlawful.” As a private institution Trinity Western is free to uphold its own beliefs. Such beliefs are protected by the Charter of Rights and Freedoms, which the society – as an institution of the state – must protect.

“The charter is not a blueprint for moral conformity,” said Campbell.

“Its purpose is to protect the citizen from the power of the state, not to enforce compliance by citizens or private institutions with the moral judgements of the state.”

People have the right to attend a private religious university, he said. That remains the case even if not everyone agrees with its code of conduct.

“Learning in an environment with people who promise to comply with the code is a religious practice and an expression of religious faith. There is nothing illegal or even rogue about that. That is a messy and uncomfortable fact of life in a pluralistic society. Requiring a person to give up that right in order to get his or her professional education recognized is an infringement of religious freedom.”

Guy Saffold, a spokesperson for Trinity Western, said the decision “sets an extremely valuable precedent in protection of freedoms for all religious communities and people of faith in Canada.”

The university has launched court cases in Ontario and British Columbia to counter similar bans on accreditation.

It plans to offer law degrees by 2016 with a proposed class size of 60 students, according to Emily Zmak, another spokesperson.

Zmak said that the university regularly received emails from would-be students hoping to attend the law school, in addition to interest within the current student body.

If the law school gets the go-ahead it would be the only private law school in the country, among 20 public law schools.

By contrast, more than half of the U.S.’s 250 law schools are private.

Indeed, it has been pointed out that the Nova Scotia Barristers’ Society has no such ban on the accreditation of graduates from American law schools, many of which have codes of conduct similar to Trinity Western’s.

In a statement, the society said it would be reviewing Campbell’s decision with legal counsel before deciding what their next step would be.