Intervening for Freedom: summary of oral submissions from Nova Scotia
At hearings on fundamental issues of national importance, it is common to permit interested groups to assist the court in understanding the issues involved. In the judicial review that took place December 16-19, 2014 of the Nova Scotia Barristers’ Society’s (NSBS) 10-9 decision to deny accreditation of Trinity Western law school graduates, eight groups were granted intervener status. In addition to written submissions, the seven groups supporting accreditation were each allotted 20 minutes to make oral submissions on December 17, 2014. Below is a summary of the oral submissions.
Attorney General of Canada
Federal lawyer Jessica Harris provided comments on three matters:
Jurisdiction: NSBS only has jurisdiction to approve articling students into the Nova Scotia bar and had not jurisdiction under the Legal Profession Act to regulate or approve law schools.
Standard of Review: if question of jurisdiction, should be standard of correctness; if standard of reasonableness, decision was unreasonable because the NSBS did not take into account the lack of any evidence of actual discriminatory conduct from TWU students; and
Reconciling Charter rights: the AG recommended looking to the 2001 Supreme Court of Canada case of TWU v BC College of Teachers as the “best guidance for this court”.
The AG’s written submissions can be read here.
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Canadian Council of Christian Charities:
CCCC counsel Barry Bussey presented two models for Canada that are being proposed by this litigation: the Diversity Model and the Absolutist Model. Characteristics of the diversity model include recognizing religion contributes to nation building and there is a willingness to accept dissonance between views on fundamental questions (like marriage). The Absolutist Model of “civic totalism” is a all or nothing approach; it rejects autonomy for religious communities and seeks a Canada where equality rights trump religious freedom. This position “effectively moves us from the position that Trinity Western in not for everyone to Trinity Western is not for anyone.” Bussey urged the court to maintain the Diversity Model as the model that better reflects the state of the law and Canadian values of multiculturalism.
Bussey’s speaking notes can be read on the CCCC’s website here.
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Catholic Civil Rights League/Faith & Freedom Alliance:
Lawyer Philip Horgan made a joint submission for CCRL and FFA. Horgan briefly reviews the 2001 TWU v BC College of Teachers case and federal legislation as recognizing no hierarchy of rights and allowing for divergence and disagreement as”authentic pluralism” rather than require conformity of “convergence liberalism”. He referred to it as “distressing” that 10 out of 19 Nova Scotia benchers would disregard the 2001 case as well as did not recognize existing federal law on marriage. Horgan also expressed concern that the meaningful analysis required of a neutral body when balancing rights was not properly undertaken by the NSBS. He concluded characterizing the community covenant as “a personal commitment to a variety of behaviours animated by self discipline, love of God and love of neighbour… the notion of love is repeated numerous times because that it was it is about, a religious understanding of how we should get along.”
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Justice Centre for Constitutional Freedoms
John Carpay focused submissions for the JCCF on the violation of freedom of association. Quoting Alexis de Tocqueville :
The most natural privilege of man next to the right of acting for himself is that of combining his exertions with those of his fellow creatures and of acting in common with them. The right of association therefore appears almost as inalienable in its nature as the right of personal liberty. No legislature can attack it without impairing the foundations of society.
JCCF submits what is lawful for the individual, cannot then be suppress by the government when done in association with others, particularly in the exercise of constitutionally protected rights. Central to freedom of association is that the group itself gets to determine its membership.
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Association for Reformed Political Action
The ARPA submissions by Andre Schutten focused on the violation of section 15 equality rights, which includes religion as an enumerated ground. According to Schutten, association has been mischaracterized as unlawful discrimination allowing the Charter to be applied as a sword rather than a shield to TWU and its graduates.
The NSBS brief states at paragraph 95 that by legitimizing acts of discrimination, the state is sending a “clear signal to citizens that discrimination is acceptable and justifiable”. ARPA submits the NSBS decision indeed does perpetuate discrimination on the ground of religion as acceptable and justifiable, whereby citizens belonging to a community with biblical standards no longer have equal access to the public square. The thrust of s.15 analysis is on the effects of discrimination; here the NSBS is bound by the Charter while TWU and its graduates should be shielded by it.
Schutten closes with an apology for rule of law — that everything that is said will be “meaningless blather if there is no rule of law”; that is, that the law cannot be arbitrarily changed or changed quickly and easily on social whims.
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Christian Legal Fellowship:
Deina Warren presented on how the NSBS decision violates religious freedom and the implications for upholding this decision. Big M Dug Mart regards the Charter as a safeguard for religious minorities “from the threat of the tyranny of the majority”. If this decision stands, Warren states, “freedom of religion will be grossly impaired rather than jealously guarded: it will be limited and restricted, and stripped of its robust nature.”
CLF highlights the slippery slope this decision represents, asking how there can be a distinction between a TWU law school graduate applying to article versus practicing, lawyers who subscribe to similar beliefs or law students who sign a similar covenant in becoming members to other religious organizations. Warren asks how a two tiered system promotes diversity and asks who is really being sent to the back of the bus in this case.
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Evangelical Fellowship of Canada/Christian Higher Education Canada:
In a joint submission for EFC and CHEC, Albertos Polizogopoulos asked “why are we here?” According to Polizogopoulos, “the issue has been decided” (in TWU v BCCT in 2001) and “if society has changed, the fundamental freedoms set out in the Charter have not.” Polizogopoulos submits the NSBS acted beyond their authority, resulting a decision that is neither correct at law nor reasonable. He also countered the suggestion that institutions do not benefit from freedom of religion with reference to Big M Drug Mart and the more recent Alberta v Hutterian Brethren case in which there was no question over standing, He reminded the court that TWU and its covenant are not “on trial”, but rather the NSBS decision. This decision engaged 5 Charter values to be balanced with setting standards for the qualification of practice of law, the extent of the NSBS authority.
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The proceedings can be viewed in the Nova Scotia Supreme Court archives here.