The Strange Case of Nova Scotia Barristers’ Society Appeal of the TWU Ruling

Despite the resounding loss at the Nova Scotia Supreme Court in January, the Nova Scotia Barristers’ Society has decided to appeal.  Justice Campbell ruled that Trinity Western University’s Community Covenant was “not unlawful” and that TWU “[l]ike churches and other private institutions … does not have to comply with the equality provisions of the Charter” (Para. 10). He continued: “The Charter does not apply to TWU. TWU is not engaging in unlawful discrimination. The fact that the NSBS and the Nova Scotia Human Rights Commission do not like it does not make it unlawful” (Para. 245).

In his searing response to the Nova Scotia Barristers’ Society’s action against TWU, Justice Campbell clearly stated that the Charter is not “a blueprint for moral conformity.” . However, it would appear that the NSBS does intend to use the Charter as a blueprint for moral conformity. In its announcement of the appeal, the Society gave the following rationale as justification for its appeal:

 If left unchallenged, this ruling may significantly restrict the scope of the Society’s authority to uphold and protect the public interest in regulating the legal profession. It may also prohibit the Society from continuing to take on a wider role in the promotion of equality in all aspects of its work, including in the administration of justice. (Emphasis added. See: http://www.nsbs.org/news/2015/03/society-will-appeal-court-decision-trinity-western-law-school-matter)

That statement speaks volumes of what is motivating the Society.

First, they claim Campbell’s ruling would restrict the scope of the Society’s authority. Justice Campbell made it very clear that the Society has absolutely no legal authority to regulate law schools—especially those in another province. Even if it did, it was unreasonable in its lack of concern for the religious freedom issues (Para. 3, 4). However, the Society does not want to be limited by the current state of the law—it has much grander plans.

Second, NSBS is wanting “a wider role in the promotion of equality in all aspects of its work, including in the administration of justice.” That remarkable statement helps us to see more clearly what Canadian society—and the religious community in particular—is up against. The issue is no longer about the law—it is well beyond that point. The NSBS has unapologetically proclaimed in its rationalization that it is an advocate for taking on “a wider role in the promotion of equality in all aspects of its work.” That is an incredible statement of admission. A law society has now deemed its public interest to be the “advocate in chief” (my words) in promoting equality (as it understands equality) at the expense of religious freedom. We are indeed entering a very scary time when, under the guise of a Charter “freedom,” the Charter is now being used as “a blueprint for moral conformity.”

This statement of the NSBS reveals not only Justice Campbell’s wisdom in upholding the rule of law and rejecting the NSBS’s overreach but it also shows his prescience about how far NSBS’s radical ideas would go in trampling other Charter freedoms. The very radical nature of the NSBS agenda has been laid bare. Religious freedom of a religious university is clearly in the crosshairs of the Nova Scotia Barrister’s Society as it takes on “a wider role” to promote equality.

In other words, “Step aside! Mere religious freedom will not stop in our attempt to make Trinity Western University free!” Have we arrived at the point where our law societies can flagrantly disregard the law to push their own agendas forward? This isn’t as far-fetched as it seems. After all, a bencher of the Law Society of British Columbia was clear about his perspective on the law when he said, “We are the law!”[1] This is a no holds barred attempt at the very moral conformity Campbell warned against.

Justice Campbell stated that the NSBS decision against TWU “…amounts to a quota system by which TWU graduates who are more likely to be Evangelical Christians are discouraged from applying so that the proportion of LGBT lawyers is raised. A more direct approach would be to directly limit the number of heterosexual articled clerks to reduce the disparity. That is every bit as strange as it sounds. That is not how social progress is achieved in a liberal democracy.” (Para. 247)

It is strange—more than strange—for a law society to be so willing to take on the role of promoting one right (equality) over another (freedom of religion).

Given the radicalization of law societies in this country, it is clearer than ever that people of faith and religious organizations have got to stand up to this drastic approach by institutions that were meant to protect the public interest. It used to be that the public interest that law societies served was to uphold the rule of law. Now they seek “a wider role….”

The rule of law is society’s protection against exactly what NSBS is now doing. The rule of law carries within itself recognition that the law has its limits. The law was never meant to interfere with civil society and destroy the organizations and communities that make a liberal democracy a place where we can mutually live lives in accordance with our deep moral and ethical commitments. Without the rule of law, those in power will inevitably use the rubric of “law” to do whatever they want—including the forceful interference in our religious and personal space.

At one point the secularists said words to this effect: “As long as religionists stay to themselves we will leave them alone.”[2] The religious community that founded TWU tried to do that—establish its own religious university as permitted by law and guaranteed by the Charter. To be able to operate in a community separate from the secular world. Such universities are not new—they have been around for about 1500 years.[3] Now, unfortunately, the tables have turned—the law is being disregarded by those who claim to operate in the “public interest” as they seek “a wider role” in ensuring those universities are not left alone, despite the fact that they follow the law and want to be left alone. Strange indeed.

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[1] Joe Arvay – Bencher BC Law Society: “I don’t recognize that law, that kind of law in this country. I don’t recognize a law that is so divorced from justice that we are bound by it. We are the law; we are the law-making body charged with making a decision at hand. So long as that decision is a reasonable one and that reflects both the objects of our statute and the Charter values we are bound to embrace, it will be a law that the Supreme Court of Canada respects. See: http://www.lawsociety.bc.ca/docs/newsroom/twu-transcript.pdf pp46-47

[2] Richard Rorty, for example, argued that it would be bad taste “to bring religion into discussions of public policy.” “We shall not be able to keep a democratic political community going,” he argues, “unless the religious believers remain willing to trade privatization for a guarantee of religious liberty.” R. Rorty, Philosophy and Social Hope (London: Penguin, 2000) at 169,170.

[3] Christian universities have been around at least since the sixth century – see Pierre Riché, Education and Culture in the Barbarian West, (Columbia, South Carolina: Univ. of South Carolina Press, 1978).