On August 15, 2016, the Nova Scotia Barristers Society (Society) decided against appealing to the Supreme Court of Canada its loss at the Nova Scotia Court of Appeal (on July 26, 2016) in its case against the Trinity Western University (TWU) School of Law.
The Society decided it would not accept TWU graduates to practice law in Nova Scotia because of TWU’s admissions policy contained in the “Community Covenant”. It was “discomforted” by the Covenant’s prohibition of sexual intimacy outside the marriage between a man and a woman.
However “discomforted” the Society may have felt about that Covenant, the Court of Appeal ruled that the Society had no jurisdiction to punish a TWU law graduate in its attempt to punish the University. As the Court put it, “Trinity Western’s law graduate is not Trinity Western’s alter ego.” Well said. The Court’s decision is a helpful reminder of just how out of step the Society became with its campaign of political correctness by overreaching its jurisdiction in an attempt to control the admissions policy of a law school in another province, British Columbia.
When one steps back and considers what the Society tried to do, one cannot but be amazed at the height of hubris. Consider this: a Nova Scotia entity charged with the solemn responsibility to protect “the public interest” in the practice of law, in its province, answered the call of critical academics and activists that the Society must show its disapproval of a British Columbia law school because it is “discomforted” by the religious practice of marriage as being between one man and one woman on that campus. The Society gave itself the jurisdiction to decide that TWU’s Community Covenant was discriminatory against potential LGBTQ applicants, and that it violated the Charter and human rights legislation and therefore was “unlawful.”
The Court of Appeal rightly rejected the Society’s power grab. In the first place, the Court noted that TWU is a private university, as recognized by the Supreme Court of Canada in 2001, and therefore not subject to the Charter. It was illogical for the Society to suggest that TWU violated the Charter when it is not even subject to the Charter! “Trinity Western did not “unlawfully” violate an enactment that has no application to it,” the Court held.
Further, the Court of Appeal noted that there was no statutory authority for the “Society to issue an independent ruling that someone has violated Nova Scotia’s Human Rights Act.” There was not one “supportive word” in any legislation that gave the Society such authority. Nor, said the Court, was there any ability for the Society to establish its own “court of competent jurisdiction under the Charter with the authority to rule that someone’s conduct in British Columbia unlawfully violated the Charter.”
The Society’s role in protecting the “public interest” in the practice of law is to ensure that a person practicing law has the required “knowledge and skill of a person trained in the law.” To the extent that the Society needs to approve an institution to ensure law graduates obtain the proper education is within its jurisdiction. What is not in the Society’s bailiwick is to focus on matters at a university not related to the practice of law. By implication lawful religious beliefs and practices are not related to legal practice.
Common sense is an apt description for this decision. The Court was not amused that the Barrister’s Society unilaterally declared jurisdiction to govern admissions policies that have nothing to do with the general competence to practice law.