Christian university under close scrutiny in Nova Scotia appeal court

Two men walk past a sign at Trinity Western University in Langley, B.C., on Monday, Aug. 24, 2015. (Darryl Dyck / THE CANADIAN PRESS)

HALIFAX -- Canada's legal community is keeping a close watch on a Halifax courtroom, where a Christian university is under scrutiny for its policy on intimate relations among students, the head of Nova Scotia's law society says.

Jill Perry, president of the Nova Scotia Barristers' Society, said outside court Wednesday the case is the first of three involving Trinity Western University in British Columbia to reach the provincial appeal court level.

"Everybody's watching Nova Scotia to see what happens," Perry said on the first day of what is expected to be a three-day hearing before the Nova Scotia Court of Appeal.

The university's plans to open a law school in Langley, B.C., have drawn criticism because students will be required to sign a so-called community covenant that forbids sex outside of marriage between a man and a woman.

In April 2104, the Nova Scotia law society amended its regulations to say the requirement represents unlawful discrimination against gays and lesbians. As a result, graduates of the law school would not be allowed to article or practice law in Nova Scotia.

In January, a Nova Scotia Supreme Court judge decided the law society exceeded its jurisdiction. Judge Jamie Campbell said the move also amounted to an infringement on religious freedom.

Law societies in Ontario and B.C. have also opposed granting accreditation to Trinity law school graduates. Both of those cases will be dealt with by each province's appeal court in June.

Inside the packed Halifax courtroom Wednesday, 20 lawyers shuffled through legal briefs before a five-judge panel.

Law society lawyer Marjorie Hickey told the panel that the lower court ruling failed to properly consider the broad nature of the Legal Profession Act, which says the purpose of the law society is to "uphold and protect the public interest in the practice of law."

She said the self-governing body had far-reaching obligations beyond overseeing the qualifications and conduct of its members.

As the gatekeeper of the legal profession, the law society must also seek to improve the administration of justice, while keeping up with broader societal trends, Hickey said.

"There's much more than bald words in this statute," she said, adding that the law society has a long history of focusing on equality of opportunity.

Hickey cited a landmark report in 1991 that followed the wrongful conviction of Donald Marshall Jr., which led to sweeping changes aimed at eliminating discrimination in the justice system.

After a series of meetings and broad consultations, the law society decided in 2014 that the university's covenant was discriminatory because it violates the Charter of Rights and Freedoms and the Nova Scotia Human Rights Act, Hickey said.

Justice Duncan Beveridge suggested the law society may have moved too quickly, considering the university has yet to set up its law school.

"Is this just window dressing?" he asked Hickey.

She said the group felt it had to take a stand because the covenant "limits opportunity to access to the legal profession."

Justice Joel Fichaud then asked whether it made sense for the law society to cite a potential violation of the Nova Scotia Human Rights Act.

"Can the Nova Scotia Human Rights Act render unlawful something that happened entirely outside the province?" he asked.

Outside the court, university lawyer Brian Casey had an answer for that.

"For Trinity Western, we say the answer is, 'You can't. You're stuck with the B.C. law."

Casey stressed that the covenant is considered lawful under that province's human rights act.

He also said the law society may have broad powers, but they do not extend to regulating law schools.

"Once they decide that ... graduates are qualified and won't discriminate, they can't ask the other question, 'Well what does your school do?' They're evaluating the applicant. They're not evaluating a law school in a different province."

However, the law society doesn't accept that view.

"This is not about penalizing TWU graduates," said Perry, whose group represents about 2,000 lawyers across the province. "It's about sending a message to the university that we as a law society have a problem with your admissions policies."