HALIFAX, Nova Scotia, July 26, 2016 (LifeSiteNews) – The Nova Scotia Court of Appeals ruled against a move by a provincial barristers group that sought to bar graduates of British Columbia-based Trinity Western University’s law school based on a community covenant.
The court on Tuesday upheld last year’s lower court decision after the Nova Scotia Barristers’ Society attempted in 2014 to withhold accreditation from the private Christian university because of its covenant that requires students to remain chaste as part of a commitment to the sacredness of marriage between a man and a woman.
The barristers’ society argued that the covenant violated its Charter of Rights on sexual orientation.
The Nova Scotia appeal court found that the province’s law society had no authority to decide whether anybody or any organization outside the province is violating the Canadian Charter of Rights and Freedoms or the provincial human rights code.
The court also found that the charter does not apply to the university because it is a private school. But if it did, the judges ruled that the Barristers’ Society had not reached its decision against TWU in a fair manner.
Furthermore, the Barristers’ Society was “ultra vires” with its own charter that was to protect “the practice of law in Nova Scotia.” This was because it “openly admitted in court that it found no fault” with the TWU law school’s proposed academic program and acknowledged “that there was no basis to believe that Trinity Western’s law graduates would be more likely than anyone else to discriminate against members of the LGBTQ community.” So the judges determined that its ban on TWU grads provided no protections.
Most damning, the court rejected the claim of the Barristers’ Society that it had “determine[d]” the TWU’s Community Covenant or conduct code “unlawfully discriminates” contrary to the Charter or Nova Scotia Human Rights Act. Nothing in the society’s own enabling legislation or the Nova Scotia Human Rights Act “authorizes” or “contemplates” the Barristers’ Society ruling on violations of human rights, the court said.
The court then summarized the quasi-judicial proceedings followed by the provincial human rights commission in an effort to be fair and balanced — holding public hearings, for example, and calling witnesses. The decision by the Barristers’ Society “circumvents every step of this process.”
The appeal court ordered the society to pay TWU $35,000 in legal costs.
The university applauded the ruling. Earl Phillips, executive director of the proposed School of Law, said, “Our teachers, nurses and business graduates in particular are sought after for their compassion, integrity, training, and skill. I look forward to seeing the extraordinary difference that graduates of TWU’s School of Law will make.”
The decision gives Trinity Western University, which has 3,500 students enrolled in 45 undergraduate and 17 post-graduate programs, its second legal victory against three Canadian legal organizations. TWU prevailed in British Columbia but lost in Ontario.
After the Nova Scotia appeals court’s ruling, Barristers’ Society President R. Daren Baxter said, “We received the decision today and we’re reviewing it carefully with our legal counsel. He noted that the appeal court said the society could legitimately pass a bylaw “that establishes requirements based on features of the articling applicant’s law school” and indicated the society would look at doing that.
The appeal court declined to consider the issue of whether TWU’s religious rights trumped the sexual rights of potential LGBT enrollees. The lower court had firmly declared that they did.
John Carpay of the Calgary-based Justice Centre for Constitutional Freedoms declared the decision “a victory for freedom of association, freedom of conscience and religion, and freedom of expression.”
The decisions are expected to be appealed to the Supreme Court.
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