Dec 16th, 2014
HALIFAX: The Justice Centre for Constitutional Freedoms is intervening in support of freedom of association for all voluntary associations in Canada, in a court application commenced by Trinity Western University (TWU) against the Nova Scotia Barristers’ Society.
The Justice Centre will argue for the Charter section 2(d) right to freedom of association. Based on its Legal Brief posted at www.jccf.ca, the Justice Centre will argue that the Barristers’ Society violates the Charter section 2(d) rights of TWU students by demanding, as a requirement of entering the legal profession in Nova Scotia, that students abandon their freedom to associate with others at a Christian university that has a Community Covenant.
The Barristers’ Society disagrees with TWU’s Community Covenant, which sets out the standards of behaviour expected of students, staff and faculty at the private evangelical university in British Columbia. The Barristers’ Society disagrees with the Community Covenant’s prohibition on sexual intimacy outside of the marriage of one man and one woman, claiming that this discriminates against gays and lesbians.
The Barristers’ Society does not require Nova Scotia lawyers to adhere to any particular opinion about same-sex marriage, or about sexual morality.
However, the Barristers’ Society this past April decided to bar graduates of TWU’s law school from entering the legal profession in Nova Scotia, solely because of the law students’ choice to associate together in a community that adheres to traditional Christian beliefs and practices. The Barristers’ Society demands that TWU change its Community Covenant in order for its law school graduates to be allowed to practice law in Nova Scotia.
The Barristers’ Society does not prohibit Christian law graduates of other law schools in Canada (or the U.S.) from entering the legal profession in Nova Scotia if they, as individuals, adhere to traditional Christian beliefs and practices, including those concerning sexuality and marriage. However, if those same Christian law students chose to associate with each other in a community to study law at TWU, the Barristers’ Society considers them unfit to practice law in Nova Scotia.
“Effectively, the Barristers’ Society is punishing the choice to share beliefs and pursue common goals in community. This attacks Charter-protected freedom of association,” stated lawyer John Carpay, President of the Justice Centre, and counsel as intervenor in this court action.
“The Nova Scotia Supreme Court’s decision in respect of TWU’s court action will have a significant national impact on the constitutional freedoms of all Canadians, including freedom of association, freedom of conscience and religion, and freedom of expression,” continued Carpay.
Background information about TWU and the Barristers’ Society decision
The Federation of Law Societies of Canada approved TWU’s law program in 2013, based on the program’s academic credentials and professional standards. The Federation specifically considered and rejected arguments that TWU illegally discriminates against gays and lesbians.
In the very similar 2001 case of Trinity Western University v. B.C. College of Teachers, the Supreme Court of Canada upheld the right of TWU, as a private and voluntary religious institution, to accredit teachers:
TWU is not for everybody; it is designed to address the needs of people who share a number of religious convictions.
In the B.C. College of Teachers case, the Court cited from previous authority as follows:
A truly free society is one which accommodates a wide variety of beliefs, diversity of tastes and pursuits, customs and codes of conduct. … Freedom can primarily be characterized by the absence of coercion or constraint. If a person is compelled by the state or the will of another to a course of action or inaction which he would not otherwise have chosen, he is not acting of his own volition and he cannot be said to be truly free. … Freedom in a broad sense embraces both the absence of coercion and constraint, and the right to manifest beliefs and practices. … The Charter safeguards religious minorities from the threat of “the tyranny of the majority.”
Students who choose to attend TWU agree to abide by the community’s standards of behaviour, called the “Community Covenant.” TWU students pledge to “cultivate Christian virtues, such as love, joy, peace, patience, kindness, goodness, faithfulness, gentleness, self-control, compassion, humility, forgiveness, peacemaking, mercy and justice” and to “live exemplary lives characterized by honesty, civility, truthfulness, generosity and integrity.”
The Community Covenant discriminates against any and all who are not prepared to live by its terms, which include prohibitions on many activities which are perfectly legal in Canada, including drunkenness, swearing, adultery, sexual promiscuity, pornography, etc.
The Barristers’ Society does not require lawyers who are now practicing law in Nova Scotia to adhere to any particular beliefs about sexuality and marriage. However, for law school graduates seeking to practice law in Nova Scotia, the Barristers’ Society will ban those who, while studying law, chose to join a Christian university community and adhere to a community covenant.
As individuals, evangelical Christians can maintain and practice their beliefs about sexuality and marriage while attending any other law school in Canada, without facing any barrier to practicing law in Nova Scotia. However, if these same individuals, adhering to the same Christian beliefs, associate with each other in a community such as TWU to study law, the Barristers’ Society prohibits them from practicing law in Nova Scotia. The JCCF will argue that this is a penalty, imposed by a government body on people who choose to utilize their freedom of association by joining together in exercising their constitutional freedom of religion.
Background information about freedom of association
In Reference Re Public Service Employee Relations Act (Alta.),  1 S.C.R. 313 [the Alberta Reference], McIntyre J. held that “while freedom of association like most other fundamental rights has no single purpose or value, at its core rests a rather simple proposition: the attainment of individual goals, through the exercise of individual rights, is generally impossible without the aid and cooperation of others”.
McIntyre J. further held that “[i]ndividual rights protected by the Constitution do not lose that protection when exercised in common with others. People must be free to engage collectively in those activities which are constitutionally protected for each individual.”
A primary characteristic of the democratic state is the freedom to share beliefs in community. In the Alberta Reference, McIntyre J. stated:
Historically the conqueror, seeking to control foreign peoples, invariably strikes first at freedom of association in order to eliminate effective opposition. Meetings are forbidden, curfews are enforced, trade and commerce is suppressed, and rigid controls are imposed to isolate and thus debilitate the individual. Conversely, with the restoration of national sovereignty the democratic state moves at once to remove restrictions on freedom of association.
Freedom of association applies a vast range of associations and organizations, including those of a political, cultural, religious, social or economic nature. A religious university like TWU is merely one example of the diversity of associations that emerge in a free society through individuals exercising the freedom of association.
Through its April 2014 decision, the Nova Scotia Barrister’s Society has interfered with the ability of TWU students to practice law in Nova Scotia, and with those students’ ability to collectively exercise freedom of conscience, religion and expression in association with others. This government body has infringed the freedoms of conscience, religion and expression, as well as the opportunity for gainful employment, due to TWU staff and students’ associational adherence to the Community Covenant, thereby discouraging the collective pursuit of common goals, contrary to section 2(d) of the Charter.
The study of law cannot be achieved by an individual alone, but must necessarily be done in association with a law school. The Barristers’ Society’s refusal to accredit TWU students due to the associational activity of adhering to the Community Covenant also discourages the collective pursuit of the common goal of practicing law.
The JCCF will argue that students who exercise their freedom of association by choosing TWU to obtain their professional credentials, whether in teaching, law, or any other profession, should not be penalized by government.
The exclusion of TWU law graduates from membership in Nova Scotia’s Barrister’s Society violates a student’s right to equality under section 15 of the Charter and infringes the student’s fundamental rights to freedom of religion, expression and association under sections 2(a), 2(b) and 2(d) of the Charter.