IN THE SUPREME COURT OF CANADA (ON APPEAL FOR THE COURT OF APPEAL OF ONTARIO) TRINITY WESTERN UNIVERSITY and BRAYDEN VOLKENANT.

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1 IN THE SUPREME COURT OF CANADA (ON APPEAL FOR THE COURT OF APPEAL OF ONTARIO) SCC No BETWEEN: TRINITY WESTERN UNIVERSITY and BRAYDEN VOLKENANT - and LAW SOCIETY OF UPPER CANADA - and Appellants Respondent ATTORNEY GENERAL OF ONTARIO, ASSOCIATION FOR REFORMED POLITICAL ACTION (ARPA) CANADA, CANADIAN CIVIL LIBERTIES ASSOCIATION, THE ADVOCATES' ADVOCATES SOCIETY, INTERNATIONAL COALITION OF PROFESSORS OF LAW, NATIONAL COALITION OF CATHOLIC SCHOOL TRUSTEES, TRUSTEES', LAWYERS' LAWYERS RIGHTS WATCH CANADA, CANADIAN BAR ASSOCIATION, CRIMINAL LAWYERS' LAWYERS ASSOCIATION (ONTARIO), CHRISTIAN LEGAL FELLOWSHIP, CANADIAN ASSOCIATION OF UNIVERSITY TEACHERS, START PROUD, OUTlaws, CANADIAN COUNCIL OF CHRISTIAN CHARITIES, UNITED CHURCH OF CANADA, LAW STUDENTS' STUDENTS SOCIETY OF ONTARIO, CANADIAN CONFERENCE OF CATHOLIC BISHOPS, SEVENTH-DAY ADVENTIST CHURCH IN CANADA, EVANGELICAL FELLOWSHIP OF CANADA, CHRISTIAN HIGHER EDUCATION CANADA, LESBIANS GAY BISEXUALS AND TRANS PEOPLE OF THE UNIVERISTY OF TORONTO, BRITISH COLUMBIA HUMANIST ASSOCIATION, CANADIAN SECULAR ALLIANCE, EGALE CANADA HUMAN RIGHTS TRUST, FAITH, FEALTY & CREED SOCIETY, ROMAN CATHOLIC ARCHDIOCESE OF VANCOUVER, CATHOLIC CIVIL RIGHTS LEAGUE, FAITH AND FREEDOM ALLIANCE and WORLD SIKH ORGANIZATION OF CANADA Interveners [Style of Cause continued on inside cover] FACTUM OF THE INTERVENER, CANADIAN SECULAR ALLIANCE (Pursuant to rule 37 of the Rules of the Supreme Court of Canada) Tim Dickson JFK Law Corporation Mainland Street Vancouver, BC V6B 5L1 Tel: Fax : tdickson@jfklaw.ca Counsel for the Intervener, Canadian Secular Alliance Guy Regimbald Régimbald Gowling WLG (Canada) LLP 160 Elgin Street, Suite 2600 Ottawa, ON K1P 1C3 Tel: Fax: guy.regimbald@gowlingwlg.com imbald@gowlingwig.com Intervener, Canadian Secular Alliance

2 SCC No IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL OF BRITISH COLUMBIA) BETWEEN: LAW SOCIETY OF BRITISH COLUMBIA - and - Appellant TRINITY WESTERN UNIVERSITY and BRAYDEN VOLKENANT Respondents - and - LAWYERS' LAWYERS RIGHTS WATCH CANADA, NATIONAL COALITION OF CATHOLIC SCHOOL TRUSTEES, TRUSTEES', INTERNATIONAL COALITION OF PROFESSORS OF LAW, CHRISTIAN LEGAL FELLOWSHIP, CANADIAN BAR ASSOCIATION, THE ADVOCATES' ADVOCATES SOCIETY, ASSOCIATION OF REFORMED POLITICAL ACTION (ARPA) CANADA, CANADIAN COUNCIL OF CHRISTIAN CHARITIES, CANADIAN CONFERENCE OF CATHOLIC BISHOPS, CANADIAN ASSOCIATION OF UNIVERSITY TEACHERS, LAW STUDENTS' STUDENTS SOCIETY OF ONTARIO, SEVENTH-DAY ADVENTIST CHURCH IN CANADA, BC LGBTQ COALITION, EVANGELICAL FELLOWSHIP OF CANADA, CHRISTIAN HIGHER EDUCATION CANADA, BRITISH COLUMBIA HUMANIST ASSOCIATION, EGALE CANADA HUMAN RIGHTS TRUST, FAITH, FEALTY & CREED SOCIETY, ROMAN CATHOLIC ARCHDIOCESE OF VANCOUVER, CATHOLIC CIVIL RIGHTS LEAGUE, FAITH AND FREEDOM ALLIANCE, CANADIAN SECULAR ALLIANCE, WEST COAST WOMEN'S WOMEN S LEGAL EDUCATION AND ACTION FUND and WORLD SIKH ORGANIZATION OF CANADA Interveners

3 ORIGINAL TO: REGISTRAR COPIES TO: Peter A. Gall, Q.C. Donald R. Munroe, Q.C. Benjamin J. Oliphant Gall, Legge, Grant & Munroe LLP West Hastings Street Vancouver, BC V6E 3T5 Tel: Fax: Counsel for the Appellant, Law Society of British Columbia Kevin L. Boonstra Jonathan Maryniuk Kuhn & Company Howe Street Vancouver, BC V6Z 2M4 Tel: Fax: Robert W. Staley Ranjan K. Agarwal Bennett Jones LLP One First Canadian Place Suite 3400, P.O. Box 130 Toronto, ON M5X 1A4 Tel: Fax: Mark C. Power Power Law 130 Albert Street, Suite 1103 Ottawa, ON K1P 5G4 Tel: Fax: Appellant, Law Society of British Columbia Mark Jewett Bennett Jones LLP World Exchange Plaza O'Connor O Connor Street Ottawa, ON K1P 1A4 Tel: Fax: jewettm@bennettjones.com Ottawa Agent for the Counsels for the Appellants/Respondents, Trinity Western University and Brayden Volkenant Counsels of the Appellants/Respondents, Trinity Western University and Brayden Volkenant Guy Pratte Borden Ladner Gervais LLP Bay Adelaide Centre, East Tower 22 Adelaide Street West Toronto, ON M5H 4E3 Tel: Fax: gpratte@b1g.com gpratte@blg.com Counsel for the Respondent, Law Society of Upper Canada Nadia Effendi Borden Ladner Gervais LLP World Exchange Plaza 100 Queen Street, Suite 1300 Ottawa, ON K1P 1J9 Tel: Fax: neffendi@blg.com Respondent, Law Society of Upper Canada

4 Andre Schutten Association for Reformed Political Action (ARPA) Canada 130 Albert Street, Suite 1705 Ottawa, ON K1P 5G4 Tel: Fax: Counsel for the Intervener, Association for Reformed Political Action (ARPA) Canada Chris G. Paliare Joanna Radbord Monique Pongracic-Speier Paliare, Roland, Rosenberg, Rothstein LLP 155 Wellington Street West, 35th Floor Toronto, ON M5V 3H1 Tel: Fax: Counsel for the Intervener, The Advocates' Advocates Society Barry W. Bussey Philip A.S. Milley 1-43 Howard Ave Elmira, ON N3B 2C9 Tel: Fax: Counsel for the Intervener, Canadian Council of Christian Charities Marie-France Major Supreme Advocacy LLP Gilmour Street Ottawa, ON K2P OR3 0R3 Tel: Fax: Intervener, Association for Reformed Political Action (ARPA) Canada Jeffrey W. Beedell Gowling WLG (Canada) LLP 160 Elgin Street, Suite 2600 Ottawa, ON K1P 1C3 Tel: Fax: Intervener, The Advocates' Advocates Society Eugene Meehan, Q.C. Supreme Advocacy LLP Gilmour Street Ottawa, ON K2P OR3 0R3 Tel: Fax: Intervener, Canadian Council of Christian Charities W.J. Sammon Barnes, Sammon LLP 200 Elgin Street, Suite 400 Ottawa, ON K2P 1L5 Tel: Fax: Counsel for the Intervener, Canadian Conference of Catholic Bishops

5 Peter Barnacle Immanuel Lanzaderas Canadian Association of University Teachers 2705 Queensview Drive Ottawa, ON K2B 8K2 Tel: Fax: Counsel for the Intervener, Canadian Association of University Teachers Susan Ursel David Grossman Angela Westmacott, Q.C. Ursel Phillips Fellows Hopkinson LLP Richmond Street West Toronto, ON M5V 3B1 Tel: Fax: Counsel for the Intervener, Canadian Bar Association Derek B.M. Ross Deina Warren Christian Legal Fellowship 470 Weber Street, Suite 202 Waterloo, ON N2L 6J2 Tel: Fax: Counsel for the Intervener, Christian Legal Fellowship Rahool P. Agarwal Kristine Spence Norton Rose Fulbright Canada LLP 200 Bay Street Royal Bank Plaza, South Tower, Suite 3800 Toronto, ON M5J 2Z4 Tel: Fax: Counsel for the Intervener, Law Students' Students Society of Ontario Colleen Bauman Goldblatt Partners LLP Metcalfe Street Ottawa, ON KIP K1P 5L4 Tel: Fax: Intervener, Canadian Association of University Teachers Jeffrey W. Beedell Gowling WLG (Canada) LLP 160 Elgin Street, Suite 2600 Ottawa, ON K1P 1C3 Tel: Fax: Intervener, Canadian Bar Association Eugene Meehan, Q.C. Supreme Advocacy LLP Gilmour Street Ottawa, ON K2P OR3 0R3 Tel: Fax: Intervener, Christian Legal Fellowship Matthew J. Halpin Norton Rose Fulbright Canada LLP 45 O Connor O'Connor Street, Suite 1500 Ottawa, ON K1P 1A4 Tel: Fax: matthew.halpin@nortonrosefulbright.com Intervener, Law Students' Students Society of Ontario

6 Gerald D. Chipeur, Q.C. Jonathan Martin Grace MacKintosh Mackintosh Miller Thomson LLP 3000, 700-9th Avenue SW Calgary, AB T2P 3V4 Tel: Fax: Counsel for the Intervener, Seventh-day Adventist Church in Canada Karey Brooks Robert Freedman Elfin Elin Sigurdson JFK Law Corporation Mainland Street Vancouver, BC V6B 5L1 Tel: Fax: Counsel for the Intervener, BC LGBTQ Coalition Eugene Meehan, Q.C. Supreme Advocacy LLP Gilmour Street Ottawa, ON K2P OR3 0R3 Tel: Fax: Intervener, Seventh-day Adventist Church in Canada Guy Regimbald Régimbald Gowling WLG (Canada) LLP 160 Elgin Street, Suite 2600 Ottawa, ON K1P 1C3 Tel: Fax: Ottawa Agent for the Counsel of the Intervener, BC LGBTQ Coalition Albertos Polizogopoulos D. Geoffrey Cowper, Q.C. Kristin Debs Geoffrey Trotter Vincent Dagenais Gibson LLP 260 Dalhousie Street, Suite 400 Ottawa, ON K1N 7E4 Tel: Fax: Counsel for the Intervener, Evangelical Fellowship of Canada

7 Albertos Polizogopoulos D. Geoffrey Cowper, Q.C. Kristin Debs Geoffrey Trotter Vincent Dagenais Gibson LLP 260 Dalhousie Street, Suite 400 Ottawa, ON K1N 7E4 Tel: Fax: Counsel for the Intervener, Christian Higher Education Canada Eugene Meehan, Q.C. Supreme Advocacy LLP Gilmour Street Ottawa, ON K2P OR3 0R3 Tel: Fax: Counsel for the Intervener, International Coalition of Professors of Law Wesley J. McMillan Hakemi & Ridgedale LLP Dunsmuir Street Vancouver, BC V6C 3K4 Tel: Fax : wmcmillan@hakemiridgedale.com Counsel for the Intervener, British Columbia Humanist Association Steven Barrett Adriel Weaver Goldblatt Partners LLP 20 Dundas Street West, Suite 1100 Toronto, ON M5G 2G8 Tel: Fax: Counsel for the Intervener, Egale Canada Human Rights Trust Marie-France Major Supreme Advocacy LLP Gilmour Street Ottawa, ON K2P OR3 0R3 Tel: Fax: mfmajor@supremeadvocacy.ca Ottawa Agent for the Counsel of the Intervener, International Coalition of Professors of Law Guy Regimbald Régimbald Gowling WLG (Canada) LLP 160 Elgin Street, Suite 2600 Ottawa, ON K1P 1C3 Tel: Fax: guy.regimbald@gowlingwlg.com Ottawa Agent for the Counsel of the Intervener, British Columbia Humanist Association Colleen Bauman Goldblatt Partners LLP Metcalfe Street Ottawa, ON KIP K1P 5L4 Tel: Fax: cbauman@goldblattpartners.com Intervener, Egale Canada Human Rights Trust

8 Blake Bromley Benefic Law Corporation West Georgia Street P.O. Box 62 Vancouver, BC V6G 1Z6 Tel : Fax : blake@beneficgroup.com Counsel for the Intervener, Faith, Fealty & Creed Society Gwendoline Allison Foy Allison Law Group Marine Drive West Vancouver, BC V7V 1L2 Tel: Fax: Gwendoline.allison@foyallison.com Counsel for the Interveners, Roman Catholic Archdiocese of Vancouver, Catholic Civil Rights League and Faith and Freedom Alliance Julius H. Grey Grey, Casgrain 1155 Rene-Levesque René-Lévesque West, Suite 1715 Montréal, Montreal, QC H3B 2K8 Tel: Fax : jhgrey@greycasgrain.net Counsel of the Intervener, Lawyers' Lawyers Rights Watch Canada Janet Winteringham, Q.C. Jessica Lithwick Robyn Trask Winteringham MacKay Water Street Vancouver, BC V6B 5C6 Tel: Fax : jwinterinham@wmlaw.ca Counsel for the Intervener, West Coast Women's Women s Legal Education and Action Fund Michael J. Sobkin 331 Somerset Street West Ottawa, ON K2P 0J8 Tel: Fax: msobkin@sympatico.ca Intervener, Faith, Fealty & Creed Society Albertos Polizogopoulos Vincent Dagenais Gibson LLP 260 Dalhousie Street, Suite 400 Ottawa, ON K1N 7E4 Tel: Fax: albertos@vdg.ca Interveners, Roman Catholic Archdiocese of Vancouver, Catholic Civil Rights League and Faith and Freedom Alliance Guy Regimbald Régimbald Gowling WLG (Canada) LLP 160 Elgin Street, Suite 2600 Ottawa, ON K1P 1C3 Tel: Fax: guy.regimbald@gowlingwlg.com imbald@gowlingwig.com Ottawa Agent for the Counsel of the Intervener, Lawyers' Lawyers Rights Watch Canada Michael J. Sobkin 331 Somerset Street West Ottawa, ON K2P 0J8 Tel: Fax: msobkin@sympatico.ca Intervener, West Coast Women's Women s Legal Education and Action Fund

9 Avnish Nanda Balpreet Singh Boparai Nanda & Company 3400 Manulife Place Street NW Edmonton, AB T5J 4K1 Tel: Fax: Counsel for the Intervener, World Sikh Organization of Canada Eugene Meehan, Q.C. Daniel D. Santoro Supreme Advocacy LLP Gilmour Street Ottawa, ON K2P OR3 0R3 Tel: Fax: Counsel for the Intervener, National Coalition of Catholic School Trustees Trustees' S. Zachary Green Josh Hunter Attorney General of Ontario 720 Bay Street, 4th 4 Floor Toronto, ON M7A 2S9 Tel: Fax: Zachary.green@ontario.ca Counsel for the Intervener, Attorney General of Ontario Marlys A. Edwardh Vanessa Payne Goldblatt Partners LLP Box Dundas Street West Toronto, ON M5G 2G8 Tel: Fax: medwardh@goldblattpartners.com Counsel for the Interveners, Start Proud and OUTlaws Marie-France Major Supreme Advocacy LLP Gilmour Street Ottawa, ON K2P OR3 0R3 Tel: Fax: mfmajor@supremeadvocacy.ca Ottawa Agent for the Counsel of the Intervener, World Sikh Organization of Canada Thomas Slade Supreme Advocacy LLP Gilmour Street Ottawa, ON K2P OR3 0R3 Tel: Fax: tslade@supremeadvocacy.ca Intervener, National Coalition of Catholic School Trustees Trustees' Robert E. Houston, Q.C. Burke-Robertson 441 MacLaren Street, Suite 200 Ottawa, ON K2P 2H3 Tel: Fax: rhouston@burkerobertson.com Intervener, Attorney General of Ontario Colleen Bauman Goldblatt Partners LLP Metcalfe Street Ottawa, ON KIP K1P 5L4 Tel: Fax: cbauman@goldblattpartners.com Interveners, Start Proud and OUTlaws

10 Alan L.W. D'Silva D Silva Nicholas Peter McHaffie Alexandra Urbanski Stikeman Elliott LLP Stikeman Elliott LLP O Connor O'Connor Street 5300 Commerce Court West Ottawa, ON KIP K1P 6L2 199 Bay Street Tel: Toronto, ON M5L 1B9 Fax: Tel: nmchaffie@stikeman.com Fax: adsilva@stikeman.com Intervener, Canadian Civil Liberties Counsel for the Intervener, Canadian Civil Association Liberties Association Sean Dewart Tim Gleason Dewart Gleason LLP Adelaide Street West Toronto, ON M5V 1R9 Tel: Fax: sdewart@dglip.ca sdewart@dgllp.ca Counsel for the Intervener, United Church of Canada John Norris David Brees Simcoe Street Toronto, ON M5H 4E2 Tel: Fax: john.norris@simcoechambers.com Counsel for the Intervener, Criminal Lawyers' Lawyers Association (Ontario) Matthew Estabrooks Gowling WLG (Canada) LLP 160 Elgin Street, Suite 2600 Ottawa, ON K1P 1C3 Tel: Fax: matthew.estabrooks@gowlingwlg.com matthew.estabrooks@gowlingwig.com Intervener, Criminal Lawyers' Lawyers Association (Ontario) Angela Chaisson Marcus McCann 197 Spadina Ave, Suite 402 Toronto, ON M5T 2C8 Tel : Fax : law@chaisson.ca Counsel for the Intervener, Lesbians Gays Bisexuals and Trans People of the University of Toronto Yael Wexler Fasken Martineau DuMoulin LLP 55 Metcalfe Street, Suite 1300 Ottawa, ON KIP K1P 6L5 Tel: Fax: ywexler@fasken.com Intervener, Lesbians Gays Bisexuals and Trans People of the University of Toronto

11 1 TABLE OF CONTENTS TABLE OF CONTENTS PART I OVERVIEW AND FACTS 1 PART II ISSUES ON APPEAL 2 PART III ARGUMENT 3 A. The Internal Limits of Freedom of Religion 3 (1) Section 2(a) does not protect practices that coerce or constrain others 3 (2) Exposure to other beliefs and conduct is not an infringement of s. 2(a) 5 (3) The decision in TWU 2001 is not determinative of the question of infringement 7 B. Institutional Freedom of Religion 7 C. Defining the "Religious Practice" at Issue 8 PART IV ORDER SOUGHT CONCERNING COSTS 10 PART V ORDER SOUGHT 10 PART VI --- TABLE OF AUTHORITIES 11

12 1 PART I OVERVIEW AND FACTS 1. This Court has held that freedom of religion means that "no one is to be forced to act in a way contrary to his beliefs or his conscience."' These cases offer an opportunity for this Court to clarify how that principle applies in circumstances where protection under s. 2(a) of the Charter is sought for an activity that has the effect of forcing non-believers to act in a manner contrary to their own beliefs. 2. Trinity Western University ("TWU") seeks to open a law school that would, through a mandatory requirement to sign a Community Covenant (the "Covenant"), discriminate against students who are LGBTQ, women, and those who do not share evangelical Christian beliefs and ethics. TWU nonetheless claims it is entitled, by virtue of freedom of religion under s. 2(a) of the Canadian Charter of Rights and Freedoms, to the benefit of accreditation from the law societies. The Canadian Secular Alliance (the "Alliance") submits that, in these circumstances, the law societies' denial of accreditation did not infringe s. 2(a). 3. The central facts relating to TWU's religious freedom claim are the following. Section 3(2) of TWU's statute sets out that its objects "shall be to provide for people of any race, colour, or creed, university education in the arts and sciences with an underlying philosophy and viewpoint that is Christian."2 Consistent with that purpose, students at TWU are expressly not required to hold evangelical Christian beliefs in order to attend the university; TWU accepts, and the evidence shows, that its student body includes students of all faiths and denominations, including nonbelievers.3 Admissions to law school would similarly be open to all, with admissions criteria, as with other Canadian law schools, focused on the "key factors" of GPA and LSAT score.4 4. With respect to governance of the student body following admission, TWU is committed to the principles of academic freedom as a liberal arts university and it affirms it would carry that R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 at pp ; see also R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713 at p Trinity Junior College Act, SBC 1969, c. 44; underlining added. 3 Affidavit of Dr. Robert Wood ("Wood #1"), at paras. 16, 67 [Appeal Record of the Law Society of British Columbia ("LSBC Record"), Vol III, at 380, 393]; Affidavit of Dr. Janet Epp- Buckingham ("Epp-Buckingham #1"),.at para. 82 [LSBC Record, Vol III, at ]. 4 Epp-Buckingham #1 at paras [LSBC Record, Vol III, at ].

13 2 through its proposed law school.5 Students are not required to sign the university's Statement of Faith and are free to hold and express opinions on moral, ethical and religious issues that diverge from evangelical Christian views on those issues, including homosexuality and same-sex relationships.6 All students are, however, required to sign the Covenant affirming that they will not engage in certain "Biblically condemned" conduct, including sex outside of a marriage between one man and one woman.? 5. In short, TWU does not limit admission to students who hold evangelical Christian beliefs, but it nonetheless requires all students to comply with evangelical Christian ethics. That requirement to obey religious norms even if students do not believe in them amounts to religious compulsion and falls outside the protection of s. 2(a). 6. Freedom of religion protects the right of each individual to hold, express and act according to their own beliefs and consciences. It does not protect efforts to coerce anyone's compliance with religious beliefs or ethics. Similarly, freedom of religion is not infringed by exposure to beliefs or ethics that contradict one's own. Section 2(a) just defends against state conduct that actually limits the ability to hold, profess or practice one's own religious beliefs. The same is true for any institutional right under s. 2(a); to the degree that there is a corporate or institutional freedom of religion protected under s. 2(a), it only acts to protect the beliefs and practices of the members of that community, not to impose beliefs upon them. PART II ISSUES ON APPEAL 7. The question that the Alliance will address in these cases is whether the decisions by the Law Society of British Columbia and the Law Society of Upper Canada to deny accreditation to TWU (together, the "Decisions") infringe s. 2(a) of the Charter. The Alliance will submit that they did not. 5 Wood #1 at para. 46 [LSBC Record, Vol III, at 386], Ex. P [Appellants' Record in the Ontario appeal, Vol I, at 110]; Epp-Buckingham #1 at paras. 10, [LSBC Record, Vol III, at ]. 6 Wood #1 at paras 48, 51 [LSBC Record, Vol III, at ]; Epp-Buckingham #1 at para. 10 [LSBC Record, Vol III, at 447]. 7 Wood #1 at paras [LSBC Record, Vol III, at ].

14 3 8. The Alliance will not address the balancing analysis set out in Dore v. Barreau du Quebec,8 but says that if the Court finds it necessary to undertake that analysis, the factors discussed in the infringement analysis are still relevant and lead to the conclusion that any impact on freedom of religion is outweighed by the impact on equality rights. PART HI ARGUMENT A. The Internal Limits of Freedom of Religion 9. Section 2(a) of the Charter is concerned with ensuring the absence of constraint or coercion of one's own religious beliefs and practices, as this Court has long held: The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination.... Freedom can primarily be characterized by the absence of coercion or constraint.... Freedom means that, subject to such limitations as are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others, no one is to be forced to act in a way contrary to his beliefs or his conscience. [Emphasis added.]9 10. Section 2(a) protects the right to hold and manifest our own beliefs or non-beliefs. Two internal limits on the scope of the freedom can be discerned from this purpose: first, s. 2(a) does not protect practices that seek to coerce or constrain the behaviour of non-believers or others outside the religious community; and, second, exposure to the beliefs practices of others is not an interference with an individual's freedom under s. 2(a). The Alliance submits that, when assessed through this lens, the Decisions do not infringe s. 2(a). (1) Section 2(a) does not protect practices that coerce or constrain others 11. Where the protection of s. 2(a) is claimed for an activity or practice that restrains or prescribes the conduct of non-believers, or otherwise involves a belief that others must behave in a certain way, it falls outside the scope of the right. Any other conclusion would contradict the 8 [2012] 1 S.C.R. 395, 2012 SCC R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 at pp ; see also R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713 at p. 759.

15 4 very principles underlying s. 2(a); a right designed to shield individuals from religious coercion cannot be used as a sword to coerce religious practice. As stated by Dickson J. in Big M: The values that underlie our political and philosophic traditions demand that every individual be free to hold and to manifest whatever beliefs and opinions his or her conscience dictates, provided inter alia only that such manifestations do not injure his or her neighbours or their parallel rights to hold and manifest beliefs and opinions of their own.1 [Emphasis added.] 12. As the British Columbia Court of Appeal stated in Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations)," s. 2(a) does not include the freedom to control or modify the behaviour of others as a method of preserving the vitality of a religious community. In that case, the Court of Appeal distinguished between scenarios where the state's regime interfered with how a voluntarily-created community passed on its religious values and cases where an organization seeks to impose religiously-based conduct on individuals who do not share the underlying religious beliefs.i2 Of those latter cases, the Court commented: It is not, in my view, consonant with the underpinning principles of the Charter to say that a group, in asserting a protected right under s. 2(a) that implicates the vitality of their religious community, is then capable of restraining and restricting the behaviour of others who do not share that belief in the name of preserving subjective religious meaning." 13. Although this Court may conclude that the Court of Appeal's reasoning was wrong or inapplicable on the facts in Ktunaxa, the Alliance submits that the underlying principle must be correct. It is consistent with this Court's direction in Amselem that freedom of religion is a personal and subjective freedom that is "a function of personal autonomy and choice."i4 The freedom is based on the idea "that no one can be forced to adhere to or refrain from a particular set of religious beliefs."i5 It does not extend to allow a person to impose on the personal choices and religious beliefs of another, let alone claim a constitutionally-protected right to do so. It would be antithetical I Big M at p See also Syndicat Northwest v. Amselem, [2004] 2 S.C.R. 551, 2004 SCC 47 at paras ; P.(D ) v. S.(C.), [1993] 4 S.C.R. 141 at p " 2015 BCCA 352 at paras Ktunaxa at paras Ktunaxa at para Syndicat Northcrest v. Amselem, 2004 SCC 47, [2004] 2 S.C.R. 551 at paras Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 S.C.R. 613 at para. 59; see also Mouvement laique quebecois v. Saguenay (City), 2015 SCC 16 at para. 69; and Congregation des temoins de Jehovah de St-Jerome-Lafontaine v. Lafontaine (Village), 2004 SCC 48, [2004] 2 S.C.R. 650 at para. 65.

16 5 to the philosophy underlying s. 2(a) to recognize a claim that requires non-believers to adhere to or refrain from a particular set of religious beliefs or to act contrary to their own beliefs. As Iacobucci and Major H. stated in their concurring opinion in B.(R.) v. Children's Aid Society of Metropolitan Toronto,"`[fireedom of religion' should not encompass activity that so categorically negates the 'freedom of conscience' of another."i6 14. The only religious constraint that arises from the facts in these cases is that imposed by TWU: the mandatory Covenant requires that every student observe evangelical Christian religious ethics, even when a student does not share the underlying religious beliefs. As noted above, students at TWU including hypothetical law students are not required to hold evangelical Christian beliefs in order to attend the university; indeed, admission to the law school will not be religiously-focused, but will instead be assessed by GPA and LSAT score. By restraining and coercing the behaviour of those outside the religious community, including those TWU has invited to attend the school, the Covenant undermines the very principles that animate s. 2(a). TWU cannot assert a s. 2(a) right to impose religious beliefs and ethics on non-believers; the right is not engaged in these circumstances, or infringed by the Decisions denying accreditation. (2) Exposure to other beliefs and conduct is not an infringement of s. 2(a) 15. Further, exposure to the beliefs or practices of others is not an interference with an individual's protected freedom of religion. It does not interfere with an evangelical Christian student's religious freedom to sit in a law school classroom with a person involved in a homosexual relationship. In S.L. v. Commission scolaire des Chenes," the Court concluded that exposing children to a variety of religious facts, although potentially a "source of friction", did not infringe their or their parents' religious freedom; rather, it was a fact of life in a multicultural society.i8 The Court expanded on this concept in Loyola High School v. Quebec (Attorney General), where the majority held that freedom of religion was engaged where the government mandated a curriculum that would force teachers at a Roman Catholic school to teach Catholicism from a "neutral" perspective.i9 In the majority's view, this amounted to "requiring a Catholic institution to speak 16 [1995] 1 S.C.R. 315 at p " 2012 SCC 7, [2012] 1 S.C.R S.L. at para Loyola at paras. 62, 64.

17 6 about Catholicism in terms defined by the state rather than by its own understanding of Catholicism."20 However, the majority then went on to conclude that a curriculum which required Loyola to teach students about other religions and ethics from a neutral perspective did not constitute an interference with freedom of religion. Abella J. concluded that asking Loyola's teachers to teach other religions and ethical positions "as objectively as possible" was not a "requirement that they shed their own beliefs." The fact that their personal religious views were not at the forefront in the teaching of ethics and other religions did "not mean that the Loyola teacher is silenced, or forced to forego his own beliefs, or even appears to be doing so." As Loyola makes clear, freedom of religion does not protect every activity undertaken by members of a religious organization or the teachers and students at educational institutions with a religious character. Inevitably, many of the activities they undertake will be secular in nature. The freedom under s. 2(a) is only engaged by state conduct that actually limits the ability to hold, profess, or practice religious beliefs. Freedom of religion is not limited or interfered with by exposure to other religious or ethical viewpoints. Section 2(a) does not entitle us to ideological uniformity and it is not infringed by seeing other people exercise their own freedom of religion In these cases, evangelical Christians are not forced to forego, silence or constrain their personal beliefs. Members of the evangelical Christian faith who attend TWU, along with teachers and staff at TWU, are free to adhere to the standards of conduct described in the Covenant. The decisions of the Law Societies do not go so far as to deny students the option of a voluntary Covenant. Students or teachers who feel that their religion requires that they undertake a contractual obligation to adhere to the Biblical standards of behaviour in question are not forced to forego that belief or refrain from acting in accordance with it. A hypothetical evangelical Christian student is not being asked to engage in or approve any activity associated with other students' Biblically-condemned acts. Sitting in the same law school classroom as a classmate in a same-sex marriage does not implicate the student in that marriage or otherwise interfere with the students' personal religious beliefs or conduct in any way. 20 Loyola at para Loyola at para. 78. See also Hall (Litigation guardian of) v. Powers, (2002), 213 D.L.R. (4th) 308, 59 O.R. (3d) 423 (Sup. Ct.). 22 Section 27 of the Charter requires that s. 2(a) be "interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians."

18 7 (3) The decision in TWU 2001 is not determinative of the question of infringement 18. The decision in Trinity Western University v. British Columbia College of Teachers23 is not determinative of the question of whether s. 2(a) is engaged in this case. The context and evidence here differ from the case before the Court in The College imposed a requirement that TWU students attend a further course of study in a secular school, out of concern that the religious views represented by the Covenant would "limit consideration of social issues by TWU graduates and have a detrimental effect on the learning environment in public schools."24 The impugned action was directly aimed at students' expression of their own religious beliefs; the Court was therefore bound to find that the regulation infringed s. 2(a). 19. In the cases at bar, the Decisions were not concerned with any alleged detrimental effect flowing from TWU students' voluntary expression of their own beliefs. Rather, they were grounded entirely in the mandatory nature of the Covenant and the invidious decision put to LGBTQ persons, women, non-evangelical Christians and conscientious objectors, that they either deny themselves a limited opportunity to attend a Canadian law school or deny profoundly personal and cherished aspects of themselves while doing so. At issue in TWU 2001 was the College's limitation of students' freedom to express and conduct themselves according to their own evangelical Christian beliefs. At issue in this case is the Covenant's limitation of the freedom to conduct oneself according to personal values and ethics that differ from those of evangelical Christianity. In doing so, the Covenant and TWU cross the line between "belief and conduct" identified in TWU 2001 itself: while the beliefs underlying the Covenant are protected, the conduct at issue (imposing the Covenant upon all, including non-believers) is not.25 B. Institutional Freedom of Religion 20. TWU claims that s. 2(a) is engaged because the Covenant embodies TWU's evangelical Christian values; the Provost of TWU, Dr. Robert Wood, deposed that the Covenant ensures that TWU "maintains its religious character" as a distinctly evangelical Christian institution.26 No 23 [2001] 1 S.C.R. 772, 2001 SCC 31 ("TWU 2001'). 24 TWU 2001 at para TWU 2001 at para Wood #1 at paras [LSBC Record, Vol III, at ].

19 8 majority of this Court has ever held that corporations or institutions are protected by s. 2(a) in their own right; in Loyola the majority would only go so far as to say that claims involving religious organizations involved the communal aspect of the freedom of religion of the individuals who make up the membership of the religious organization in question.27 The minority reasons of McLachlin C.J. and Moldaver J. went further, establishing the current high water mark for a "corporate" view of s. 2(a), stating that the communal character of religious freedom means that "protecting the religious freedom of individuals requires protecting the religious freedom of religious organizations." Even if one accepts the position that TWU is a religious organization that is entitled to claim the constitutional protection of s. 2(a) of its own accord, the analysis above is unaffected. If s. 2(a) does provide protection for institutions, then, as seen in the quote cited above, it does so in order to protect the religious freedom of individuals. The result is that, if institutions enjoy freedom of religion, then they do so only to the extent that it gives effect to individual religious freedom. It would again be inconsistent with the very purpose of s. 2(a) to protect the religious practices or precepts of an organization that had the effect of interfering with the religious freedom of that organization's own members. Whether freedom of religion is individual or corporate, the same internal limitation arises: freedom of religion cannot be used to restrict the freedom of religion of someone else. But that is precisely the effect and indeed the purpose of a mandatory Covenant, and it therefore cannot fall within the protection of s. 2(a). C. Defining the "Religious Practice" at Issue 22. The inconsistencies in TWU's position between its claim for protection against interference in its expression of religious belief, and its desire to impose religiously-motivated belief and conduct on non-believers; and between its self-description as a religious community, and its decision to admit non-believers and permit full academic freedom of expression flow naturally from the context of these two appeals. The study of secular, Canadian law is not a religious activity, and evangelical Christianity does not hold that it must only be pursued with classmates who comport with evangelical Christian ethics. Even those evangelical Christians who 27 Loyola at paras Loyola at para. 91 (emphasis added).

20 9 provided affidavits in these cases only went so far as to say that they would have considered (but not necessarily attended) TWU Law as an option if available, and they identified a Christianfocused curriculum and a learning environment that encouraged discussion of Christian values as possible benefits of the proposed law schoo1.29 Attending law school is not a religious rite or practice, but a secular activity. While that conclusion necessarily flows from the very nature of Canadian law schools, it is also demonstrated by TWU's stated respect for academic freedom and open debate, along with its open admissions policy regarding religious belief, such that an atheist student is welcome to attend the school and voice points of view contrary to evangelical Christian belief on issues including the definition of marriage or the existence of god. This is the case precisely because the study of Canadian law is not a religious practice and need not be pursued within a community of shared belief. 23. TWU's proposed law school is not a seminary or a s. 93 denominational school. But even in those kinds of educational settings, the protection of s. 2(a) does not extend to every activity. In Loyola freedom of religion in an educational context was directly linked to the interest in transmitting religious beliefs to children.3 And even in a denominational school focused on that objective, only the study of Catholicism itself not the study of other religions was found to fall within the religious sphere for Loyola's students. 24. Plainly the study, by adults, of secular Canadian law falls even farther outside the religious sphere than does the study of other religions in a denominational school. And still farther beyond that sphere is what TWU is really claiming protection for: the right to enforce evangelical Christian ethics as against non-believing students, not only when those students are engaging with others in the classroom, but also (indeed, primarily) when those students are living their private lives after class. There is no sufficient nexus between the religious dictates of evangelical Christianity and the imposition of the Covenant in this context. 29 Affidavit of Brayden Volkenant, paras. 13, 22, 29 [Appeal Record of Trinity Western University and Brayden Volkenant ("Appellants' Record"), Vol I, at 68, 70-71]; Affidavit of Jessie Legaree, para. 23 [LSBC Record, Vol II, at 257]; and. Affidavit of Natalie L. Hebert, para. 17 [Appellants' Record, Vol I, at 143]. 3 Loyola at paras. 61, 64.

21 The beliefs that underlie the Covenant are plainly religious in nature and are sincerely held by many TWU students. Those students have every right to hold and express those beliefs, including in community with others, but a voluntary covenant would permit them to do so. The imposition of a mandatoly religious code of conduct on a diverse community that includes nonbelievers, on the other hand, is the very essence of religious compulsion. Such conduct cannot be protected by s. 2(a), regardless of whether the claim is based on the religious freedom of the evangelical Christian students attending TWU or of TWU itself as an institution. PART IV ORDER SOUGHT CONCERNING COSTS 26. The Alliance does not seek costs and asks that no costs be awarded against it. PART V ORDER SOUGHT 27. The Alliance takes no position on the disposition of these appeals. ALL OF WHICH IS RESPECTFULLY SUBMITTED. DATED: September 8, 2017 Tim Dickson Catherine George Counsel for the Intervener

22 11 PART VI --- TABLE OF AUTHORITIES CASES B.(R.) v. Children's Aid Society of Metropolitan Toronto, [1995] 1 SCR Congrégation Congregation des témoins temoins de Jehovah Jéhovah de St-Jerome-Lafontaine St-Jérôme-Lafontaine v. Lafontaine (Village), [2004] 2 SCR Dore Doré v. Barreau du Quebec, Québec, [2012] 1 SCR Hall (Litigation guardian of) v. Powers, (2002), 213 D.L.R. (4th) 308, 59 O.R. (3d) 423 (Sup. Ct.) 15 Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2015 BCCA , 13 Loyola High School v. Quebec (Attorney General), [2015] 1 SCR , 16, 20, 23 Mouvement laique laïque québécois quebecois v. Saguenay (City), 2015 SCC R. v. Big M Drug Mart Ltd., [1985] 1 SCR , 9, 11 R. v. Edwards Books and Art Ltd., [1986] 2 SCR , 9 S.L. v. Commission scolaire des Chênes, Chenes, [2012] 1 SCR Syndicat Northwest v. Amselem, [2004] 2 SCR , 13 Trinity Western University v. British Columbia College of Teachers, [2001] 1 SCR STATUTES Trinity Junior College Act, SBC 1969, c. 44 3