Nova Scotia Court of Appeal THE NOVA SCOTIA BARRISTERS' SOCIETY. - and.- TRINITY WESTERN UNIVERSITY and BRAYDEN VOLKENANT. - and -

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1 2015 C.A. No, BETWEEN: Nova Scotia Court of Appeal THE NOVA SCOTIA BARRISTERS' SOCIETY - and.- APPELLANT TRINITY WESTERN UNIVERSITY and BRAYDEN VOLKENANT - and - RESPONDENTS ASSOCIATION FOR REFORMED POLITICAL ACTION (ARPA) CANADA; CANADIAN COUNCIL OF CHRISTIAN CHARITIES; THE CATHOLIC CIVIL RIGHTS LEAGUE AND FAITH AND FREEDOM ALLIANCE; THE ATTORNEY GENERAL OF CANADA; JUSTICE CENTRE FOR CONSTITUTIONAL FREEDOMS; SCHULICH SCHOOL OF LAW OUTLAW SOCIETY; THE ADVOCATES' SOCIETY; CANADIAN BAR ASSOCIATION; CHRISTIAN LEGAL FELLOWSHIP; THE CANADIAN SECULAR ALLIANCE INTERVENORS FACTUM OF THE INTERVENOR THE CANADIAN SECULAR ALLIANCE Marjorie Hickey, Q.C. Peter Rogers, Q.C. Jane O'Neill McInnes Cooper Upper Water Street Purdy's Wharf Tower II Halifax, NS B3J 2V1 Tel: (902) Fax: (902) marjorie.hickey@mcinnescooper.com Counsel for the Appellant Brian Casey, Q.C. Boyne Clarke 99 Wyse Road, Suite 600 Dartmouth, NS B2Y 3Z5 Tel: (902) Fax: (902) bcasey@boyneclarke.ca Counsel for the Respondent

2 2015 C.A. No BETWEEN: Nova Scotia Court of Appeal THE NOVA SCOTIA BARRISTERS' SOCIETY - and - APPELLANT TRINITY WESTERN UNIVERSITY and BRAYDEN VOLKENANT - and - RESPONDENTS ASSOCIATION FOR REFORMED POLITICAL ACTION (ARPA) CANADA; CANADIAN COUNCIL OF CHRISTIAN CHARITIES; THE CATHOLIC CIVIL RIGHTS LEAGUE AND FAITH AND FREEDOM ALLIANCE; THE ATTORNEY GENERAL OF CANADA; JUSTICE CENTRE FOR CONSTITUTIONAL FREEDOMS; SCHULICH SCHOOL OF LAW OUTLAW SOCIETY; THE ADVOCATES' SOCIETY; CANADIAN BAR ASSOCIATION; CHRISTIAN LEGAL FELLOWSHIP; THE CANADIAN SECULAR ALLIANCE INTERVENORS FACTUM OF THE INTERVENOR THE CANADIAN SECULAR ALLIANCE Marjorie Hickey, Q.C. Peter Rogers, Q.C. Jane O'Neill McInnes Cooper Upper Water Street Purdy's Wharf Tower II Halifax, NS B3J 2V1 Tel: (902) Fax: (902) marjorie.hickey@mcirmescooper.com Counsel for the Appellant Brian Casey, Q.C. Boyne Clarke 99 Wyse Road, Suite 600 Dartmouth, NS B2Y 3Z5 Tel: (902) Fax: (902) bcasey@boyneclarke.ca Counsel for the Respondent

3 Lori Rasmussen Barry W. Bussey Counsel for the Intervenor Counsel for the Intervenor Department of Justice Canadian Council of Christian Charities Atlantic Regional Office V-P Legal Affairs Duke Street 1 43 Howard Avenue Halifax NS B3J 1P3 Elmira ON N3B 2C9 Tel: (902) Tel: (519) Fax: (902) Fax: (519) lori.rasmussen@justice.gc.ca barry.bussey@cce.org dbond@davidbondlaw.com Philip Fourie Derek B.M. Ross Deina Warren Counsel for the Intervenor Christian Legal Fellowship c/o David Bond David Bond Law Office 5832 St. Margaret's Bay Road Head of St. Margaret's Bay NS B3Z 2E4 Tel: (902) Fax: (902) execdir@christianlegalfellowship.org dbond@davidbondlaw.com Andre Marshall Schutton Counsel for the Intervenor The Association for Reformed Political Action (Canada) ("ARPA") 130 Albert Street, Suite 2010 Ottawa ON KIP 5G4 Tel: (613) Fax: (613) andre@arpacanada.ca dbond@davidbondlaw.com John Carpay Counsel for the Intervenor Justice Centre for Constitutional Freedoms Elbow Drive, SW Calgary AB T2V 1K2 Tel: (403) j carpay@jccf. ca dbond@davidbondlaw. corn mmoore@jccf.ca Mathieu Bouchard Amy Sakalauskas Susan Ursel Counsel for the Intervenor Canadian Bar Association do Irving Mitchell Kalichman LLP De Maisonneuve Blvd West Montreal, QC H3Z 3C1 Tel: (514) Fax: (514) mbouchard@imk.ca amy.sakalauskas@outlook.com sursel@upfhlaw.ca

4 Philip Horgan Counsel for the Intervenor The Catholic Civil Rights League & Faith & Freedom Alliance Philip Horgan Law Office Carlton Street Toronto ON M5A 4K2 Tel: (416) Fax: (416) Albertos Polizopoulos Kristin Debs Counsel for the Intervenor The Evangelical Fellowship of Canada & Christian Higher Education Vincent Dagenais Gibson LLP 260 Dalhousie Street, Suite 400 Ottawa ON K1N 7E4 Tel: (613) Fax: (613) Jack Townsend Counsel for the Intervenor Schulich School of Law OUTlaw Society Cox & Palmer 1100 Purdy's Wharf Tower Upper Water Street Halifax NS B3J 3E5 Tel: (902) Fax: (902) jktownsend@coxandpalmer.com Bruce MacIntosh, QC Counsel for the Intervenor The Advocates' Society MacIntosh, MacDonnell & MacDonald East River Road New Glasgow NS B2H 5E5 Tel: (902) Fax: (902) bmacintosh@macmacmac.ns.ca Tim Dickson Arden Beddoes Catherine George Counsel for the Intervenor Canadian Secular Alliance Farris Vaughan Wills and Murphy LLP W Georgia Street Vancouver BC V7Y 1B3 Tel: (604) Fax: (604) tdickson@farris. corn

5 i TABLE OF CONTENTS PART 1 - CONCISE OVERVIEW OF THE APPEAL 1 PART 2 - CONCISE STATEMENT OF FACTS 1 PART 3 - LIST OF ISSUES 2 PART 4 - STANDARD OF REVIEW 3 PART 5 - ARGUMENT 3 PART 6 - RELIEF SOUGHT 24 APPENDIX A - LIST OF AUTHORITIES 25 APPENDIX B - STATUTES AND REGULATIONS 27

6 1 PART 1 CONCISE OVERVIEW OF THE APPEAL 1. The Canadian Secular Alliance (the "Alliance") intervenes in this appeal to address the proper scope and approach to freedom of religion under s. 2(a) of the Charter of Rights and Freedoms.' The Alliance submits that the court must not treat the first stage of the analysis in a freedom of religion claim the determination of whether a decision engages the Charter by limiting its protections in a perfunctory manner, leaving any concerns about the strength of the claim or the impact of the impugned decision for consideration during the justification or balancing process at the second stage. Before proceeding to the second stage, the court must carefully characterize the claimant's asserted religious belief or practice; examine the proper scope of the freedom delineated by s. 2(a); consider whether the practice over which the respondents seek protection falls within that scope; assess whether the claimed religious belief is sincerely held; and, finally, determine whether the state has objectively interfered with religious freedom. PART 2 CONCISE STATEMENT OF FACTS 2. The Alliance submits that there was no interference with the respondents' religious freedom on the facts of this case. Students at Trinity Western University ("TWU") are expressly not required to hold evangelical Christian beliefs in order to attend the university; TWU accepts students of all faiths and denominations, including non-believers. There are students at TWU and there would be law students for whom adherence to the Community Covenant (the "Covenant") is plainly not a matter of religious belief or practice. Rather, it is an obligation they Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982 being Schedule B to the Canada Act 1982, c. 11 ("Charter"). Appellant's Book of Authorities ("A. BOA"), Tab 53.

7 7 2 would be forced to undertake in order to attend law school. These facts necessarily lead to the conclusion that the respondents' claim falls outside the scope of the protection provided by s. 2(a). As a result, the accreditation decision (the "Decision") of the Nova Scotia Banisters' Society (the "Barristers' Society") did not infringe the respondents' freedom of religion. PART 3 LIST OF ISSUES 3. In support of this position, the Alliance will address the following issues: (a) (b) (c) (d) (e) At the outset of the freedom of religion analysis, the Court must accurately characterize the practice for which the respondents seek the protection of s. 2(a), because it is this practice that is the subject of the respondents' claim to constitutional protection. The analysis of whether freedom of religion has been infringed must take place having regard to the specific practice for which the respondents claim protection. The scope of freedom of religion does not capture the practice over which the respondents seek protection on the facts of this case. Freedom of religion does not protect practices which seek to coerce or constrain the behaviour of others for religious reasons; rather, freedom of religion is concerned with ensuring an absence of constraint or coercion with respect to religious belief and practice. In the alternative, even if the respondents' practice does fall within the scope of freedom of religion and could be protected by it, that practice nonetheless is not protected in the present circumstances because the evidence does not establish that the respondents hold a sincere belief in the claimed religious practice. In the further alternative, even if the respondents' practice is religious and protected by freedom of religion, the decision of the Barristers' Society does not interfere with that freedom. Additionally, the respondents are seeking a benefit accreditation which the

8 3 Barristers' Society cannot supply because doing so would violate the principle of state neutrality in religious matters. In any event, the requisite exceptional circumstances which would direct that the Banisters' Society must accommodate the respondents' request are absent. (f) For all of these reasons, there is no infringement of freedom of religion and it is therefore unnecessary for the Court to undertake the second stage of the analysis, either as a matter of justification under s. 1 of the Charter or by balancing competing rights and freedoms. However, if the Court concludes to the contrary, then the arguments set out above support the conclusion that any infringement is minimal and should be given little weight in the second stage of the analysis. PART 4 STANDARD OF REVIEW 4. The Alliance agrees with and adopts the submissions of the Barristers' Society as to the standard of review applicable in this appeal. PART 5 ARGUMENT A. The proper characterization of the practice at issue 5. The respondents claim that the Decision infringes their freedom of religion. In making that assertion, they impliedly assert that they have a sincerely held belief in a religious practice that requires that they teach and study law in a program that requires all of its students to adhere to a prescribed set of evangelical Christian practices and rejects those students who cannot or choose not to do so (the "Practice"), and that the Decision interferes with this practice so as to infringe their rights under s. 2(a) of the Charter. 6. The respondents do not merely seek to teach and study law in an evangelical Christian environment or atmosphere. They do not merely seek to teach and study law amongst other

9 4 evangelical Christians. Their broad rights to engage in such conduct are not challenged in this case. Rather, it is the Practice, as specifically outlined above, over which they seek constitutional protection. 7. It is critical that religiously-based practices over which constitutional protection is sought be carefully and accurately characterized, as above, because it is those practices that are the subject of the entire freedom of religion analysis. In the present case, it is the Practice outlined above to which the freedom of religion analysis must be applied. B. The Practice does not fall within the scope of freedom of religion 8. As made clear by recent jurisprudence, freedom of religion has its limits, even in the context of activities undertaken by religious organizations. In this case, any alleged constraint on the respondents' activities is not sufficient to invoke the protection of s. 2(a). Further, the Practice is not the sort of practice that s. 2(a) of the Charter protects. The respondents assert a constitutional right to impose and enforce observance of a religiously-motivated code of conduct by all students in their proposed law school program. Section 2(a) does not protect practices that seek to coerce or constrain the behaviour of other individuals for religious reasons. 9. Section 2(a) of the Charter provides that "everyone... has freedom of conscience and religion." It does not go so far as to constitutionalize any activity undertaken in the name of religion, let alone restrictions on the activities of others. Courts have concluded that s. 2(a) is designed to protect individuals from state coercion or constraint of religious belief or practice. As Dickson J. stated in R. v. Big M Drug Mart Ltd. :2 The essence of the concept of freedom of religion is the right to entertain such religious 2 [1985] 1 S.C.R. 295 at pp ("Big M"). A. BOA, Tab 28.

10 5 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.] 10. The respondents argue that, by withholding accreditation of TWU's proposed law school program, the Banisters' Society is constraining their religiously-motivated desire to teach and study law in a program in which all students are required to adhere to a prescribed set of evangelical Christian practices. However, this is not the sort of "constraint" the courts have contemplated when considering s. 2(a). 11. The only direct and palpable religious constraint that arises out of the Practice would be TWU's imposition and enforcement of the observance of evangelical Christian religious practices on its law students, regardless of their religious or conscientious beliefs and preferences. The recent freedom of religion jurisprudence does not support the protection of such a practice. 12. In Loyola High School v. Quebec (Attorney General),3 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. In the majority's view, this amounted to "requiring a Catholic institution to speak about Catholicism in terms defined by the state rather than by its own understanding of Catholicism."4 13. 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 3 [2015] 1 S.C.R. 613, 2015 SCC 12 ("Loyola"). A. BOA, Tab 21. Ibid at para. 63.

11 6 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."5 14. The Ontario Superior Court of Justice reached a similar conclusion in Hall (Litigation guardian oj) v. Powers,6 where a student at a Roman Catholic high school sought an injunction that would allow him to attend the school's prom with his boyfriend. The principal and the School Board had denied his request on the basis that approval would have been contrary to their understanding of Catholic beliefs about homosexual sexual activity. The court, in granting the injunction, rejeted this position, concluding that pen lifting Mr. Hall to attend prom with his boyfriend would not impair the freedom of religion of the principal or School Board, as it "will not compel or restrain teachings within the school and will not restrain or compel any change or alteration to Roman Catholic beliefs."7 15. As Loyola and Hall make 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. 16. In this case, evangelical Christians are not forced to forego, silence or constrain their Ibid at para (2002), 213 D.L.R. (4th) 308, 59 O.R. (3d) 423 (Sup. Ct.) ("Hall"). Alliance's Book of Authorities ("Alliance BOA", Tab 4. 7 Ibid at para. 55.

12 7 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 Decision does not even 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. 17. The respondents claim that the Practice is protected by s. 2(a) because the Covenant embodies TWU's evangelical Christian values; in the court below, the Provost of TWU, Dr. Robert Wood, deposed that the Covenant ensures that TWU "maintains its religious character" as a distinctly evangelical Christian institution. Further, he stated that it allows students to "reach their fullest potential" by surrounding them with a community mutually committed to following the Biblical code of conduct.8 In the court below, Campbell J. found that "[l]earning in an environment with people who promise to comply with the code is a religious practice and an expression of religious faith."9 Later, he accepted that being at an institution with those "who are committed to a shared Christian life style" is important to the spiritual development of those "involved with TWU."1 18. Recent authority demonstrates that the protection offered by freedom of religion does not extend that far. It does not protect practices that coerce the participation of others, nor shield religious beliefs that seek to impose behaviour or treatment on others in the community at large. In other words, where the Charter claim is based on an activity that restrains the conduct of non- Trinity Western University v. Nova Scotia Barristers' Society, 2015 NSSC 25 at paras ("TWU v. NSBS"). A.B., Part I, Tab 3. 9 Ibid at para Ibid. at para. 234.

13 8 believers, or otherwise involves a belief that others must behave in a certain way, it falls outside the protected scope of the right. This is because to hold any other way would offend the very principles underlying s. 2(a). As outlined below, a right designed to shield individuals from religious coercion cannot be used as a sword to coerce religious practice. 19. As Richard Moon states in "Conscientious Objections by Civil Servants: The Case of Marriage Commissioners and Same Sex Civil Marriages"," there is a line between the "sphere of personal or communal religious life and the sphere of political or civic life" that must be maintained in adjudicating freedom of religion claims.12 Where an ostensibly religious claim in fact concerns a position on the rights, interests or status of others in the community, that belief or practice enters the public sphere and becomes "a political position, and not a personal religious practice or belief, and as such it should not be excluded or insulated from political decisionmaking" in the way that a matter personal to the individual could be.13 Moon concludes that freedom of religion "does not support the accommodation of religious view about the rights and freedoms of others." In a recent decision by the British Columbia Court of Appeal, Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations),15 the Court came to a similar conclusion, emphasizing that freedom of religion stops at the point where it impacts the rights of others. The right cannot be used by a person or group holding one set of religious beliefs to control the behaviour of others who do not share those beliefs. "Richard Moon, "Conscientious Objections by Civil Servants: The Case of Marriage Commissioners and Same Sex Civil Marriages" in B. Berger and R. Moon, Religion and the Exercise of Public Authority (Hart, 2016) (forthcoming); Available at SSRN (2015) (Moon, "Conscientious Objections"). A. BOA, Tab Ibid at p. 3 (page citations to SSRN). 13 Ibid at p Ibid at p BCCA 352 at paras ("Ktunaxa"). A. BOA, Tab 5.

14 9 21. The Ktunaxa Nation claimed that their religion required that all persons refrain from developing a particular area of land. As the Court pointed out, the religious custom the Ktunaxa invoked "do not develop" was one that would have to be perfoi ned by all people, of every faith or creed. The Court concluded that 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: [73] In this case, the Ktunaxa derive subjective spiritual meaning from, and submit that the vitality of their religious community as a whole depends on, a requirement imposing constraints on people who do not share that same religious belief. 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... [74] In my view, in this case, s. 2(a) does not apply to protect the vitality of religious communities where the vitality of the community is predicated on the assertion by a religious group that, to preserve the communal dimension of its religious beliefs, others are required to act or refrain from acting and behave in a manner consistent with a belief that they do not share. [Emphasis added.] 22. This position is supported by the jurisprudence on freedom of religion from the Supreme Court of Canada. For example, in Big M, Dickson J. stated: 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."16 [Emphasis added.] 23. In the present case, to the extent the values cited by Dickson J. are threatened, they are threatened by the respondents' assertion of a constitutional right to impose their religious practices on others. 24. Similarly, in P. (D.) v. S. (C.)," L'Heureux-Dube J. for the majority held that freedom of 16 Big M, supra at p See also Syndicat Northwest v. Amselem, [2004] 2 S.C.R. 551, 2004 SCC 47 at pares ("Amselem"). A. BOA, Tab [1993] 4 S.C.R. 141 at p Alliance BOA, Tab 5.

15 10 religion was not infringed by state action that restricted a parent's religious beliefs or practices where the parent's religious activities interfered with a child's best interests, on the grounds that the freedom "is inherently limited by the rights and freedoms of others." While parents were free to choose and practise the religion of their choice, "such activities can and must be restricted when they are against the child's best interests, without thereby infringing the parents' freedom of religion." The Ktunaxa decision is also consistent with the position, set out in Amselem, that freedom of religion is a personal and subjective freedom, "one that is integrally linked with an individual's self-determination and fulfilment and is a function of personal autonomy and choice, elements which undergird the right." The emphasis, as lacobucci J. put it, is on "personal choice of religious beliefs."i9 The freedom is concerned with one's own individual beliefs and practices, not with the activities of others. Certainly it does not extend to allow one person to impose on the personal choice and religious beliefs of another person, let alone claim a constitutionallyprotected right to do so. 26. In this case, the Practice because of the mandatory nature of the Community Covenant has the effect of coercing non-believers into adhering to conduct motivated or required by evangelical Christian beliefs. Students who do not identify as evangelical Christians are required to act or refrain from acting in a manner that is directed by a religion they do not observe. The Alliance submits that this falls outside the sphere of protection offered by s. 2(a) of the Charter, and in fact offends its very spirit. 27. In their submissions, the respondents appear to take the position that the religious ' 8 Ibid. 19 Amselem, supra at paras

16 11 freedom at issue in the present case is exercised by TWU, as an "arm of the church," and therefore by the members of a religious organization that consists of evangelical Christians, including Mr. Volkenant.2 It appears that Campbell J. assessed the claim on this basis.21 This position overlooks the evidence of the composition of the student body of the university as a whole, as well as the composition of the student body for the hypothetical law school. The evidence of Dr. W. Robert Wood, provost at TWU, is that a "high percentage" of students at TWU identify as Christian. In Fall 2013, admissions data showed that 84% of students identified as Christian, 14% did not respond, and 2% identified with a non-christian or non-faith tradition. Even within the Christian student body there is variation in the denominations represented, so that not all Christian students come from an evangelical background. Students are free to hold and express opinions on moral, ethical and religious issues that diverge from TWU's position on those issues, including homosexuality and same-sex relationships, and are not required to sign or otherwise agree to the university's Statement of Faith.22 While the Community Covenant may, as Dr. Wood says, reflect the "dominant" religious view of the evangelical Christian community at TWU, the evidence clearly demonstrates that it does not reflect the views of all members of the community The Practice is not simply a matter of evangelical Christians choosing to adhere to a Biblical code of conduct. Admission to TWU's law school will be open to non-christians, just as 20 No majority of the Supreme Court of Canada has ever held that corporations are protected by s. 2(a) in their own right; claims involving religious organizations must be predicated on the communal aspect of the freedom of religion of the individuals who make up the membership of the religious organization in question (see discussion in Loyola, supra at paras ). It is therefore not TWU per se that makes a claim for religious freedom, but TWU acting on behalf of its constituents. 21 See for example TWU v. NSBS, supra at paras , referring to the beliefs and practices of "those involved with TWU." 22 Affidavit of Dr. W. Robert Wood, A.B. at pp. 790, and 893 (from the Introductory Statement to TWU Core Values, Trinity Western as an "Arm of the Church"). 23 Ibid at p. 800.

17 12 admission to its other programs is. The Community Covenant therefore has an impact on outsiders to TWU's religious community. Indeed, because law school admissions act as a gateway to the practice of law, the admissions criteria of accredited programs have an impact on the public interest In Ktunaxa the Court distinguished between cases like Loyola, 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.25 In contrast with Loyola, where the only persons who had to comply with the Catholic teachings were students who were voluntary members of the Catholic community, the Ktunaxa argued that the flourishing of their religious community depended on a requirement that constrained the actions of people who did not share their beliefs. 30. This case falls in the second category. The Practice is not simply an internal matter, in the sense of being a rule that applies to the internal operations of a voluntary religious organization. TWU is not a church; on the evidence, this is not a case where it can be presumed that all constituents adhere to or refrain from certain activities as an expression of their own religious beliefs. There is no coercion in the use of a code of conduct where the members of an institution have chosen to attend because of a set of shared religious beliefs and the code of conduct is rationally connected to those beliefs. That cannot be the case where, as here, the institution accepts that its members include those who do not share its beliefs. TWU admits that students are not screened for admission based on religious belief, but are instead offered admission on the 24 Richard Moon, "The Accreditation of Trinity Western University's Law School", Law Matters, Summer 2015 ( (Moon, "Accreditation"). Alliance BOA, Tab Ktunaxa, supra at paras

18 13 basis that they must sign the Covenant in order to attend.26 This is, by definition, coercion. 31. The Alliance submits that there is a further reason for excluding the respondents' claim and, more broadly, the type of claim described in Ktunaxa, where the religious practice in question requires observance by non-believers from the ambit of constitutional protection. By restraining or coercing the behaviour of others in the community, the Covenant undermines the very principles that animate s. 2(a) itself. 32. In Loyola, Abella J. noted that freedom of religion as a right "is founded on the idea that no one can be forced to adhere to or refrain from a particular set of religious beliefs."27 In Mouvement laique quebecois v. Saguenay (City), Gascon J. also emphasizes that s. 2(a) guarantees that no one can be "compelled... to act in a manner contrary to his or her beliefs." The respondents cannot claim that the Banisters' Society Decision interferes with their freedom of religion and invoke that freedom as the basis for challenging the denial of accreditation where their own actions force non-believers to "adhere or refrain from a particular set of religious beliefs" or to act contrary to their own beliefs. By doing so, their activity is antithetical to the philosophy that animates s. 2(a) of the Charter. It cannot be the case that the activities that a party claims are protected by the ambit of the Charter are in themselves antithetical to that same provision of the Charter,29 As Iacobucci and Major JJ. stated in their 26 Affidavit of Dr. W. Robert Wood, A.B. at p Loyola, supra at para SCC 16 at para. 69 ("Saguenay"). A. BOA, Tab 23. See also Congregation des tetnoins de Jehovah de St- Jerome-Lafontaine v. Lafontaine (Village), [2004] 2 S.C.R. 650, 2004 SCC 48 at para. 65 ("Lafontaine"). Alliance BOA, Tab An analogous circumstance under s. 2(b), freedom of expression, could involve a claim for protection for activity that would silence others or compel them to speak.

19 14 concurring opinion in B. (R.) v. Children's Aid Society of Metropolitan Toronto,30 "` [f]reedom of religion' should not encompass activity that so categorically negates the 'freedom of conscience' of another." 34. The Alliance does not say that TWU cannot operate a university and issue degrees, including law degrees. That is not in issue before this Court, and TWU, as a private institution, is not itself subject to the Charter. The Alliance only goes so far as to submit that where the expression of a religious belief or practice undermines the very Charter right in question, that Charter right cannot be invoked as a basis for challenging administrative action. 35. In the Alliance's submission, the decision of the Supreme Court in Trinity Western University v. British Columbia College of Teachers31 is not determinative of the question of whether the Practice is protected by the scope of s. 2(a). As discussed by the court below,32 as well as by the Ontario Divisional Court in addressing the denial of accreditation by the Law Society of Upper Canada,33 both the context and evidence in this case differ from the case before the Court in TWUv. BCCT. 36. That decision was focused on the issue of whether there was evidence of a risk of discrimination in the public school environment arising from the admission of teachers who graduated from TWU's teacher education program.34 The Court analyzed the case from the view that it concerned a clash between the religious freedom of an individual (i.e. a student at TWU) 3 [1995] 1 S.C.R. 315 at p Alliance BOA, Tab 2. The majority in B. (R.) dealt with the freedom of religion claim under s. 1, whereas Iacobucci and Major J. preferred to deal with it at as a question of scope. 31 [2001] 1 S.C.R. 772, 2001 SCC 31 ("TWUv. BCCT'). A. BOA, Tab TWUv. NSBS, supra at para. 208, concluding that, despite similarities, the cases were not so identical as to make the Supreme Court's decision determinative of the issues. u Trinity Western University v, The Law Society of Upper Canada, 2015 ONSC 4250 at paras A. BOA, Tab TWU v. BCCT, supra at para. 32.

20 15 "and the equality concerns of students in B.C.'s public school system."35 Further, it was concerned with a field of study, education, where the evidence was clear that "homosexuals... will not be prevented from becoming teachers" by their exclusion from TWU.36 It was in that context and on the evidence adduced in that case that Iacobucci and Bastarache JJ. wrote that "TWU is not for everybody; it is designed to address the needs of people who share a number of religious convictions. " The majority in TWU v. BCCT concluded that the "proper place to draw the line" in this type of case is "between belief and conduct," as the freedom to hold a belief is broader than the freedom to act on that belief. Accordingly, without any concrete evidence that teacher training at TWU would foster discrimination in the public school system, the Teachers' College had to respect the freedom of those individuals to adhere to certain religious beliefs while at TWU. In this case, the issues raised by the parties focus on conduct, not belief.38 The Barristers' Society denied accreditation because TWU would require all students to sign the Covenant, whether or not they personally held the beliefs underlying it. A voluntary Covenant would simply manifest the beliefs of those students who signed it, but a mandatory requirement crosses the line into conduct, because it necessarily entails the imposition of the Covenant onto those who would not sign it voluntarily. 38. In addition, the jurisprudence on freedom of religion has developed significantly over the Ibid at para Ibid at para. 35. See in comparison the evidence on the availability of law school seats in TWU v. NSBS, supra at para. 80 (approximately 28,000 applications per year to 16 reporting common law schools; approximately 2800 students admitted). 37 TWU v. BCCT, supra at para In her dissent in TWU v. BCCT, supra, L'Heureux-Dube J. took the view that the signing of the Community Standards document (as it was then called) was in fact an act of conduct, expressing her confusion as to why the majority classified it as "part of the freedom of belief as opposed to the narrower freedom to act on those beliefs" (at para. 72).

21 16 past 14 years; TWU v. BCCT was decided before any of the leading decisions on s. 2(a), including Loyola, which deals directly with freedom of religion in a religious educational institution. As the Court noted in TWU v. BCCT, the area of human rights is one that continues to evolve.39 Both the legal and evidentiary contexts are sufficiently different that it is open to this Court to conclude that the respondents' freedom of religion is not engaged or infringed. C. The evidence does not establish the existence of a sincere belief in a religious obligation 39. As set out in Amselem, in order to succeed in a claim under s. 2(a), the claimant must show the court that he or she has "a practice or belief, having a nexus with religion, which calls for a particular line of conduct, either by being objectively or subjectively obligatory or customary, or by, in general, engendering a personal connection with the divine or with the subject or object of an individual's spiritual faith." While individuals need not show that the particular practice or belief they assert is required by "official religious dogma" or that it is in conformity with the position of religious officials, they must show that they are "sincere" in the belief: it must be "in good faith, neither fictitious nor capricious, and... not an artifice."'" The court must assess sincerity as a question of fact, with reference to the credibility of the claimant's testimony and an analysis of whether the belief is consistent with his or her other religious practices and behaviours, albeit with an acknowledgement that a person's relationship with the divine or their perceptions of what religious obligations arise from that relationship can change over time. 41. Because the Practice seeks to interfere with the conduct of non-believers, the Alliance 39 Ibid at para. 70. A/me/ern, supra at para. 56. ' Ibid at para. 51.

22 17 says that the Court must be particularly careful in assessing whether the evidence establishes each element of the test. 42, As Iacobucci J. said in Amselem, the claimant's belief or practice must be religious in content: only "beliefs, convictions and practices rooted in religion, as opposed to those that are secular, socially based or conscientiously held, are protected by the guarantee of freedom of religion."42 While the Alliance does not dispute that the beliefs that underlie the Covenant are religious in nature, the evidence does not show that the Practice itself is in fact religious in its content. In other words, the evidence does not establish that studying law among those who have signed a covenant to refrain from Biblically-condemned practices is, in itself, a precept of evangelical Christianity. Attending law school is not a religious rite or practice, but a secular activity. There may, of course, be religious elements to education; that is the basis for the majority opinion in Loyola (where, however, the religious quality of the education was directly linked to the interest in transmitting religious beliefs to children a factor clearly absent in a law school context).43 But, as in that case, there will be elements of that education that do not enter into the sphere of the religious. In Loyola, only the study of Catholicism itself and not the study of other religions was found to fall within the religious sphere for Loyola's students; plainly the teaching of law falls even farther outside. 43. Further, the evidence does not establish that the respondents believe that this particular line of conduct attendance at law school only with those who have signed a covenant to refrain from Biblically-condemned practices is required by their religion. The evidence only goes so 42 Ibid at para Loyola, supra at paras. 61, 64 emphasizes that the interference with religious freedom arose because the Minister's decision interfered with the manner in which the members of an institution "formed for the purpose of transmitting Catholicism could teach and learn about the Catholic faith." The context here is markedly different.

23 18 far as to suggest that they might prefer an evangelical Christian atmosphere. Mr. Volkenant only says that TWU would be his "top choice" for law schoo1.44 As noted above, TWU says that it will admit non-christians to the law school, as it does to the university more generally. The evidence undermines any contention that evangelical Christianity requires attendance at law school with those of the same beliefs, or even that it requires attendance only at a law school with those who have agreed to refrain from Biblically-condemned practices The Alliance submits that the case law since Amselem has made clear that a "preference" for a certain line of conduct is not sufficient to meet the test for a freedom of religion claim. In Multani v. Commission scolaire Marguerite-Bourgeoys,46 McLachlin C.J., for the majority, noted that an individual must "show that he or she sincerely believes that a certain belief or practice is required by his or her religion." Similarly, in S.L. v. Commission scolaire des Chenes,47 the Court referred to the sincerity of the belief that "a religious practice must be observed" and the belief that a person "has an obligation to act in accordance with a practice." Where the claim relates to a practice, or a certain line of conduct, the claimant must show that they sincerely believe that it is a religious obligation that they sincerely believe that the line of conduct is required by their religion. An optional activity, or an activity that the claimant might enjoy more than the available alternatives, is not sufficient to meet the test. 44 Affidavit of Brayden Volkenant, A.B. at p He also says that he feels he would benefit from studying law in an environment that "challenged me to reconcile my personal faith and beliefs with the law, and respected that living a life of deep Christian faith can impact and enhance my practice" (ibid), and that he would "like to be able to stay in the Lower Mainland and attend a law school where I would not have to choose between receiving a Christian education and becoming a lawyer" (ibid. at p. 947). 45 Mr. Volkenant's comments on his undergraduate degree at TWU indicate that he appreciated that courses were taught from an explicitly Christian perspective, and that he wants a similar experience in law school, but there is nothing to indicate that this would not be possible in circumstances where the Covenant was voluntary. 46 [2006] 1 S.C.R. 256, 2006 SCC 6, at para. 35 [emphasis added]. A. BOA, Tab [2012] 1 SCR 235, 2012 SCC 7 at paras. 2, 22, 24, 26. [Emphasis added,] A. BOA, Tab 40. See also R. v. N.S., [2012] 3 S.C.R. 726, 2012 SCC 72, at para. 11 ("NS."), referring to the fact that the claimant had to show that she sincerely believed "that her religion requires her to wear a niqab in the presence of men who are not her relatives, including while testifying in court" (emphasis added). A. BOA, Tab 33.

24 There is no claimant in this case who states that they subjectively believe that evangelical Christianity requires that they attend law school only where the other students have signed a covenant to refrain from Biblically-condemned practices. As emphasized above, there is no question that Mr. Volkenant, and likely other evangelical Christian students (or future law students), believe that evangelical Christianity requires that they refrain from these activities as a matter of religious obligation. The Banisters' Society recognized that fact when it allowed for a voluntary covenant in its Decision. 46. This same evidence undermines the claim for the sincerity of the belief. TWU has made clear that, as a university, it welcomes anyone who wishes to pursue a liberal arts education who is willing to be part of the community. Students need not be members of the Evangelical Free Church; indeed, the evidence shows that not all of the students admitted to TWU adhere to a Christian worldview.48 Although not determinative, inconsistent adherence to a religious belief is one element that the court may take into account in determining the sincerity of the belief Further, the evidence shows that evangelical Christians have attended other law schools in Canada.5 However, there is nothing in evidence to suggest that the sexual practices of other law students in any way interfered with their religious practice or beliefs. Mr. Volkenant, who deposes to his desire to attend TWU's proposed law school, says that he wishes to learn law from a Christian perspective. This is a matter of pedagogical bent and curriculum. TWU might suggest a particular curriculum on this basis (as indeed it has).51 It might suggest that a law school with a majority Christian student body would provide the requisite Christian learning atmosphere. 48 Affidavit of Dr. W. Robert Wood, A.B. at pp. 790, and 893 (from the Introductory Statement to TWU Core Values, Trinity Western as an "Ann of the Church"). 49 Amselem, supra at para. 51; NS., supra at para Affidavit of Benjamin Shearer, A.B. at p 'Affidavit of Brayden Volkenant, A.B. at p. 947, dealing with TWU's intention to offer a specialization in the area of charity law.

25 20 However, none of this requires the Practice in question here. D. The respondents have not met the onus of showing an interference with their religious freedom 48. As stated in R. v. Edwards Books and Art Ltd.,52 interference is only established where religious beliefs or conduct "might reasonably or actually be threatened." The freedom only prohibits "burdens or impositions" on a religious practice that are non-trivial In Re Marriage Commissioners Appointed Under the Marriage Act,54 Smith J.A. in her concurring opinion found that the requirement that marriage commissioners perform same-sex marriages even where they had a religious objection to same-sex conduct affected their religious beliefs "only in a secondary way". They were not compelled to engage in the conduct that they found objectionable. She therefore concluded that any interference was trivial or insubstantial, because the interference did not threaten actual religious beliefs or conduct. 50. This conclusion applies with far greater force to the respondents. They are not being asked let alone required to forego their beliefs about what sexual behaviours are condemned by the Bible. They are not being silenced; they may share these views with others as they see fit. A hypothetical evangelical Christian student in TWU's law school 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. 51. Further, the court should consider what burden or imposition the Banisters' Society has 52 [1986] 2 S.C.R. 713 at p. 759 ("Edwards Books"). A. BOA, Tab Amselem, supra at para SKCA 3 at para. 148 ("Re Marriage Commissioners"). A. BOA, Tab 42.

26 21 in fact imposed on TWU. The accreditation Decision does not bar TWU from operating a law school where students are required to sign the Covenant. It simply denies those students automatic access to membership in the Nova Scotia Bar Society. This does not restrict the Practice. At most it increases the cost of manifesting the belief, which is not barred so long as it does not interfere with the actual belief or practice.55 E. Freedom of religion does not entitle the respondents to the provision of a state benefit 52. At its essence, the respondents' claim is a claim for a state benefit in the foiiii of accreditation. Rather than asserting freedom of religion to protect its religious practices from state interference, the respondents rely on it to justify their assertion of a privilege or accommodation that they say the state is obligated to provide There is no "right" to an accredited law program, and no obligation on the Barristers' Society to facilitate TWU's religious practices. The state does not violate freedom of religion where it fails to fund, facilitate, or otherwise provide a platform for the practice of religion: Adler v. Ontario.57 This case does not fall into the "exceptional" category of cases described by Bastarache J. in Congregation des temoins de Jehovah de St-Jerome-Lafontaine v. Lafontaine (Village) where the state may owe a benefit to a particular religious group.58 In Lafontaine 55 Edwards Books, supra at p See Moon, "Accreditation". 57 [1996] 3 S.C.R. 609, per McLachlin J. (as she then was), dissenting; L'Heureux-Dube J., dissenting; Sopinka J., concurring. Alliance BOA, Tab 1. The majority did not address the freedom of religion claim in a case involving a claim for funding for religious schools in Ontario, instead concluding that any Charter claim was foreclosed by ss. 93 of the Constitution Act, 1867, which only gave constitutional protection to funding for certain denominational schools. 58 Lafontaine, supra, per Bastarache J. in dissent. The majority did not deal with freedom of religion. Bastarache J. refers to the jurisprudence on s. 2(d), freedom of association, where the Court has held on occasion that positive government action can be required in exceptional circumstances where it is "required to make a fundamental freedom meaningful" (ibid. at para. 77). The example given is Dunmore v. Ontario (Attorney General), [2001] 3 S.C.R. 1016, 2001 SCC 94, where Bastarache J. had noted that "when the state creates a situation that interferes with the exercise of a freedom, it may be required to take positive steps to put an end to the interference", and that it will

27 22 Bastarache J. concluded that if no land had been available in the municipality that was zoned for places of worship, the respondent municipality would have been required to amend its zoning legislation in order to allow the Jehovah's Witnesses to find land for their place of worship. The facts of the case fell into the rare category of cases where the state had created a situation that interfered with the exercise of a freedom and was therefore required to put an end to the interference.59 While there may be exceptional cases where positive government action is required, as where "freedom of religion can have no real meaning unless the public authorities take positive action," this is not one of those cases. 54. Further, the duty of state neutrality acts as an internal limit on the availability of accommodation or the provision of a benefit under s. 2(a). As stated in Saguenay, the state must remain neutral in matters involving freedom of religion, not favouring any particular belief.61 As a result, the state cannot act in a way that creates "a preferential public space that favours certain religious groups and is hostile to others".62 As stated by Bastarache J. in Lafontaine (Village), if the municipality of Lafontaine had provided the appellant religious group with access to a lot that better corresponded with their criteria for their place of worship by altering its zoning bylaws, such assistance would have infringed the duty of state neutrality by having the municipality "manipulat[e] its regulatory standards in favour of a particular religion." If the Barristers' Society takes the position that discriminatory practices in a law school are a reason to deny accreditation, it cannot alter that stance on the basis that the source of the "only be in exceptional cases that underinclusive legislation will have a substantial impact on the exercise of a fundamental freedom" (para. 79). 59 Ibid. at para Ibid. 6' Saguenay, supra at para Ibid. at para. 75. See also para At para. 71.