Christian Legal Fellowship appeared before the Nova Scotia Court of Appeal as intervener in the case of TWU v. NSBS earlier this month. CLF was represented by lawyers Deina Warren and Derek Ross (pictured above) at the three-day hearing. CLF’s written submissions can be accessed here. Deina Warren shares her reflections on the hearing below.
For the heart of this people has become dull, and with their ears they scarcely hear, and they have closed their eyes (Acts 28:27)
Engaging with the anti-TWU arguments and positions, I can’t help but hear this verse echo in my mind. It seems obvious that TWU’s case is one of state actors substantially interfering with Charter protected religious beliefs. Yet in Nova Scotia, the Barristers’ Society believes it has done nothing to interfere with freedom of religion.
But thankfully, the NSBS does not have the last word, and the Nova Scotia Court of Appeal was fully engaged on all the live issues.
Simply observing two full days of an appeal hearing was an experience in itself. The five-judge panel sat quietly for the first half an hour; then the questions began. Clearly drawing on litigation experience from the past, the panel questioned with expertise and an intimate familiarity with the expansive record.
Facial expressions betrayed consternation, frustration, confusion, satisfaction, irritation, bewilderment, and understanding as arguments were made and questions were (sometimes) answered.
Questions like: what has changed since the TWU v B.C. College of Teachers decision in 2001 that would fundamentally alter the analysis and outcome for this case? What test did NSBS apply to TWU to determine that TWU unlawfully discriminated? Do Charter values expand jurisdiction to regulate?
Answers from the NSBS consistently returned to several themes. First, the public interest. In its view, the public interest required action against TWU because of its admissions policy. Regulators must ensure equal access to the legal profession which, the NSBS insisted, means ensuring equal access to law schools.
NSBS’ second theme was unlawful discrimination. Although it was unclear which legal test was applied to come to the conclusion TWU unlawfully discriminates, in the end it didn’t really matter because the NSBS claimed it retained discretion to determine how, when and pursuant to what laws or principles a school “unlawfully discriminates”.
The third theme was NSBS’ view that its actions caused minimal (if any) impairment of religious freedom. You can have any religiously based education you want, the NSBS argued, but that doesn’t mean the state will validate your education for the purpose of entry to the legal profession. The NSBS also contended that TWU could make signing its Community Covenant voluntary without affecting the practice, belief or conduct of any Evangelical Christian. TWU’s position was thus characterized as a request for the right to “control the conduct of others” who do not share its beliefs.
For our part, CLF took 3 simple positions in oral argument.
First, since TWU v BCCT in 2001, religious freedom has been repeatedly affirmed, even expanded, and has been specifically protected in the context of allegedly competing LGBT equality rights; the analysis in TWU v BCCT is still relevant and applicable.
Second, the NSBS imposes on individual students a significant burden for associating with and/or personally holding to religious beliefs as expressed in the Covenant; these students will be put to a different test for bar admission, but what the components of that test will be remains a mystery. The NSBS accepted that TWU will be academically qualified and competent and that there is no evidence to suggest that they will discriminate in practice.
Third, the NSBS’ actions begs the question of whether there is a fence around its jurisdiction at all. How far back or out can a regulator reach in the name of the “public interest”? At what point does the “process” of becoming a lawyer begin? Can a student be denied admission to the bar based on her studying as an undergraduate at TWU, or at an international law school with similar policies? Where does this leave lawyers, judges, and law professors who hold beliefs similar to those embodied in TWU’s Covenant and who currently work in Nova Scotia? Will these lawyers now be subject to additional scrutiny from NSBS to ensure that any past or current associations, religious beliefs or expression align with NSBS’s definition of the public interest?
As the SCC recognized in BCCT, if signing TWU’s Covenant is enough to justify rejecting one’s academic qualifications, the same might be said of membership in a church or, by extension, any religious association. In response to this argument, one of the judges asked if we were suggesting that, as a result of the decision, Catholic lawyers will need to “keep their heads down”. We affirmed that this is exactly one of our concerns.
Overall, it was an engaging hearing. The challenging questions from the bench demonstrated a depth of understanding of the issues at stake and the broader implications of the case, which should bring some measure of reassurance to those of us who eagerly await the decision.