Supreme Court

SUPREME COURT OF Nova Scotia

Citation: Trinity Western University v. Nova Scotia Barristers’ Society,

2014 NSSC 395

Date: 20141112

Docket: Hfx. No.  427840

Registry: Halifax

Between:

Trinity Western University and Brayden Volkenant

Applicants

and

Nova Scotia Barristers’ Society

Respondent

and

 

Intervenors

Justice Centre for Constitutional Freedoms

The Association for Reformed Political Action (ARPA) Canada

The Evangelical Fellowship of Canada and Christian Higher Education Canada

The Catholic Civil Rights League and Faith and Freedom Alliance

The Christian Legal Fellowship

The Canadian Council of Christian Charities

The Nova Scotia Human Rights Commission and

The Attorney General of Canada

 

Judge:	The Honourable Justice Jamie Campbell
Last Written Submissions:	October 22, 2014
Written Decision:	November 12, 2014
Counsel:	Brian Casey for the Applicants Marjorie Hickey, Q.C., Peter Roger, Q.C. and Jane O’Neill for the Respondent

 

 

Campbell, J.

[1]     The Nova Scotia Barristers’ Society (“NSBS”) has voted to recognize law degrees to be granted by the law school proposed by Trinity Western University (“TWU”) for purposes of admission to be bar in Nova Scotia on one condition.   The condition is that the university amend its Community Covenant so that it either ceases to discriminate or doesn’t apply to law students. That document in its current form has been argued by the NSBS to discriminate against students who are gay or lesbian. It prohibits students from engaging in sexual intimacy outside marriage. Marriage as defined by TWU means only a marriage between a woman and a man.  TWU is a private Christian university. A judicial review and application in court are scheduled to be heard on 16 December 2014.

[2]     There are two preliminary issues at this motion stage.  TWU has objected to portions of two affidavits filed on behalf of the NSBS. TWU and Brayden Volkenant[1] have made a motion asking to strike those parts of the affidavits. The second issue is about the requirement to answer written questions directed to the affiants of those affidavits. The NSBS objects to those questions and has made a motion seeking to have them set aside.

[3]     The two affidavits in question are those of Dr. Elise Chenier and Dr. Mary Bryson. While they are both filed in the form of affidavits they are essentially reports intended to provide expert opinion. Dr. Chenier of Simon Fraser University is an historian. Her report sets out the history of discrimination against gays, lesbians and other sexual minorities, the effect of exclusion on sexual minorities and the role that the state has taken in combatting that discrimination.

[4]     Dr. Bryson has a doctorate in Educational Psychology with specific expertise in gender and sexuality.  Her affidavit addresses the effects of the TWU covenant on sexual minorities and sets out the research that demonstrates the impact of such policies on lesbian, gay and bisexual community members. The affidavit goes on to examine the data setting out the percentage of self-identified sexual minority members in the Nova Scotia bar and compares that to a similarly situated population. The affidavit addresses the impact on recruiting sexual minorities if the NSBS were to recognize degrees from TWU’s proposed law school.

Social Science Evidence

[5]     These affidavits, as evidence, occupy a grey area. Affidavits are intended to be statements of facts. They do not contain opinions about evidence or speculation about what evidence could be. But expert reports are intended to convey an opinion based on assumed facts using specialized knowledge, training or experience. These are both affidavits and expert reports. Strictly applying the rules that pertain to affidavits would be impractical.

[6]     Reading through the affidavits gives a sense of just how different they are from the usual, sometimes rather dry, recitation of facts found in an affidavit. They clearly contain information that is not within the personal knowledge of the affiant. Of course they contain opinions. They also include statements that are intended to persuade.

[7]     They are also a departure from what might normally be expected in an expert report. It’s a bit hard at times to differentiate between conclusions based on expertise, assertions of facts, and advocacy.  The reports contain statements about historical events and trends that are supported by their assertion with no intent that they be subject to formal proof.

[8]     The language used is at times powerful. It is at times impenetrably academic. And, at other times takes the form of advocacy. One is not left in any doubt at all about whether these experts have a definite view about what the outcome of the matter should be. Dr. Bryson says, for example, at paragraph 24, the concluding paragraph of her affidavit/report, that the action of the Nova Scotia Barrister’s Society “appropriately and productively anticipates the need to address fairly and proactively the recruitment of sexual minorities into the legal profession and importantly, represents a constructive refusal to add to, or to appear to condone, the deleterious impacts of minority stress already experienced by LGB people in the larger community.” That isn’t what an expert opinion has traditionally sounded like. It isn’t what affidavits have traditionally sounded like either.

[9]     Dr. Chenier says with respect to TWU’s Community Covenant, at paragraph 90, after referencing the cap on the number of Jewish students permitted to attend Queen’s University before the1950s; “This policy is regressive in that it moves backward to a past in which exclusion based on sexual orientation was regarded as legitimate, justifiable and even Christian.” Once again, that has quite a different tone from an expert’s report offered by an engineer, an accountant, a medical doctor, or an accident reconstruction expert.

[10]   Technically, a report of an expert would contain a statement of assumed facts that would have to be proven in court. The expert would then offer an opinion or a theory relevant to the case, using training, knowledge and expertise of a kind not possessed by the judge. That opinion would be based on those assumed and to be proven facts. That opinion would be testable or verifiable.

[11]   Charter litigation has changed that.

[12]   Social science evidence is critical in making decisions on the interpretation of the Charter especially when those matters involve public policy. Reports from experts in those areas convey a kind of information that may be quite different. The way in which those reports are used by courts can also be quite different. Adjudicative facts are those that are proven by evidence and relate directly to the subject matter of the proceeding. Judges can take judicial notice of facts that are widely known and beyond dispute. Social science evidence or legislative facts fall between those more traditional categories.

[13]   Charter decisions can’t be made in a “factual vacuum”.[2]  A proper factual foundation has to exist for example when measuring legislation against the provisions of the Charter. Legislative facts provide a social, economic and cultural context. They are subject to less stringent requirements of admissibility.[3]   The Supreme Court of Canada has continued to make use of social science evidence in a wide range of matters.

[14]   The Supreme Court has noted that when social and legislative facts are put before a trial judge he or she has to “evaluate and weigh that evidence in order to arrive at the conclusions of fact necessary to decide the case”.[4]   The trial judge can be involved in a time consuming exercise of reviewing material and reconciling differences between the experts, studies and research results.  Social and legislative facts are also intertwined with adjudicative facts. The judge has to analyze and give appropriate weight to the evidence in its different forms.

[15]   Social science evidence is presented through expert witnesses.[5]   The assessment of that evidence relies heavily on the trial judge. Social science evidence will necessarily be different from the reports of experts in the natural sciences. In those areas, where there are controlled experiments, testable predictions, and quantifiable data an expert opinion will usually involve the application of rigorous testing methods. There is no hierarchy of sciences and social sciences are no less rigorous than natural sciences. That statement itself could be the subject further debate requiring expert opinion.  Suffice it to say, social sciences and natural science are just different.

[16]   A trial judge has to consider the reliability of the particular social science evidence. If the report goes beyond the scope of the expertise of the writer, that has to be considered. If it is tendentious, or argumentative, or unbalanced those are considerations as well. Social science evidence that is supported by empirical research may be given different consideration from that which is based on anecdotal observation.

[17]   Justice Doherty in the Ontario Court of Appeal in R. v. Abbey[6]  set out a two-step approach in dealing with this kind of evidence. Less stringent admissibility requirements don’t mean that everything can form part of the record.  First, the party who puts forward the evidence has to show the existence of some preconditions to the admissibility of expert evidence. The proposed witness must actually be an expert. The opinion has to relate to a subject matter that is properly the subject of expert evidence.  The opinion has to be logically relevant to a material issue. Finally, the opinion must not “run afoul of any exclusionary rule apart entirely from the expert opinion rule”.  That is a “rules based” analysis that will result in a “yes” or “no” answer. If the evidence doesn’t meet those requirements it isn’t admissible.

[18]   Second, if the trial judge decides that the expert evidence meets the preconditions of admissibility, the issue is whether it’s sufficiently beneficial to the trial process to warrant its admission. That involves a discretionary cost-benefit analysis.  The “costs” in that analysis are “a consumption of time, prejudice, and confusion.”[7]  The benefits are found in the potential value of the evidence to actually prove something of significance. Whether the expert evidence does indeed have that potential requires a consideration of the reliability of the evidence. Reliability can be assessed by considering the subject matter of the evidence, the methodology used by the expert, the expert’s expertise and the extent to which the expert is shown to be impartial and objective.

[19]   Trial judges have to be careful in Charter matters when exercising their discretion under the second part of the test. That part is sometimes called the “gatekeeper function”.  Chief Justice Bauman of the British Columbia Supreme Court, in Reference Re: Criminal Code of Canada (B.C.)[8]   the Polygamy Reference, adopted Justice Doherty’s approach in R. v. Abbey and called it an “innovation”.  He went on to say that relevant expert evidence will help to ground any meaningful analysis in reference questions and the same presumably applies in Charter  litigation generally.

The benefits of a trial reference in enabling the creation of this evidentiary foundation would be lost by the application of an unnecessarily restrictive approach to the admissibility of expert evidence.

[20]The parties in this case have different views about how the gatekeeper function ought to be exercised. TWU says that portions of the documents should be struck. The NSBS says that any concerns can just go to the weight given the opinions.

Application of the Test in R .v. Abbey

[21]   The analysis here should follow Justice Doherty’s approach.  The reports are by experts, capable of offering opinions within their respective areas of expertise. There is no argument about that. What the reports relate to are properly the subject of expert opinion.  Once again that’s not debated. They are both logically relevant to material issues involved in the application.  They don’t run afoul of any other exclusionary rules. At that point the second stage gatekeeper function of the analysis is engaged.

[22]   The cost-benefit analysis means that time, prejudice, and confusion each have to be considered. The approach also involves a review of the potential probative value of the reports having regard to the extent to which the experts are independent, the methodologies used and the nature of the subject matter.

[23]   There is no serious concern that the disputed contents will add to the time it will take to deal with the application. The prejudice or confusion here could arise from the insertion in sworn affidavits of material that amounts to a submission, plea or argument. The concern would be that the arguments might be accorded more weight or deference by virtue of their being sworn and in a report of an expert. Expert opinion and argument can be confused.

[24]   So, the cost part of the equation involves mostly the concern that argument and legal conclusions might be given more weight than they should be given. The benefit is generally that the expert reports contain the kind of context information that will be important in deciding the case. That value is assessed in a preliminary way. The experts have each expressed views that suggest that they have strong opinions about the outcome of the legal issue to be decided in the case. Each of the experts is independent however, in the sense that they are not employees or members of the NSBS. The nature of the subject matter in both cases is such that the opinions given must by their nature include assertions of facts that are not within the personal knowledge of the expert.  The experts are providing information that is not subject to the strict rules of proof. The methodologies used are not those of the natural sciences but those of social sciences. Generally, the potential value of the reports outweighs the potential prejudice or confusion that might arise from their being admitted as evidence. 

[25]   TWU has noted specific concerns about each of the affidavits. Those should be addressed individually having regard to the balancing of costs and benefits that has just been applied to the reports more generally.

Dr. Chenier’s Report

[26]   Dr. Chenier is an historian with a specialty in the history of gays, lesbians and other sexual minority groups. She can properly give opinion evidence on those matters.

[27]   In paragraph 5 of her affidavit Dr. Chenier uses the phrase, “discrimination such as that engaged in at Trinity Western University”. TWU says that this calls for a legal conclusion. She is an historian not a lawyer. It is not disputed that the community covenant in place at TWU does not recognize same sex marriage. A married couple who is not gay or lesbian can, under that covenant, engage in acts of sexual intimacy. A gay or lesbian couple, who may be legally married under the laws of their home province, cannot, because TWU doesn’t recognize that marriage. Treating people differently based on a characteristic is discrimination. Saying it is discrimination is a statement about the way in which people are treated differently. It does not say that the discrimination is legal or illegal or whether in either event it would justify the action taken by the NSBS. When the word “discrimination” is used in the report, it should be interpreted as having only that general sense and not intended to convey any legal conclusion.

[28]   In paragraph 29 Dr. Chenier says that white Canadians defended exclusionary practices on the basic of scientific racism. Scientific racism was an attempt to place notions of white superiority on scientific ground and “was merged with modern Christian theology”. TWU says that Dr. Chenier is not an expert in Christian theology and cannot offer an opinion with respect to it. I did not take that paragraph to say that all white Canadians defended those practices, nor is it a statement that scientific racism was grafted onto all Christian theology.  It is not an opinion about the content of Christian theology but in its context is a statement that confirms that scientific racism was able to insinuate itself in some cases into Christian theology. It is a comment about the nature of racism.

[29]   In paragraph 42 of her affidavit Dr. Chenier says that “up until the late nineteenth century the Church viewed the primary purpose of sex to be reproduction. For this reason the sexual activity that most concerned Christians was adultery.” TWU says that Dr. Chenier has no theological credentials to permit her to offer an opinion that the church was monolithically of one opinion.  While the comment does suggest a lack of nuance in the characterization of Christianity, it does appear only to suggest that this view was prevalent not catholic or universal. It can be seen as a generalization as opposed to an attempt to say that late nineteenth century Christians were of one opinion about anything.

[30]   In paragraph 47 Dr. Chenier says that, “Only once a type of person is identified can laws and policies be formulated to regulate police and exclude them.”  TWU says that this portion of the affidavit is outside Dr. Chenier’s area of expertise. It is not a statement about history but a general statement about how the law works. In its context though, it’s a remarkably innocuous sentence. The paragraph deals with “the invention of the homosexual as a particular type” and how that allowed for regulatory and exclusionary practises to emerge. The impugned sentence is not a statement of opinion on laws and regulations but a comment that is, if not self-evident, then at least, reasonable to assert without any expertise. It is also simply a matter of putting the rest of the paragraph in some kind of general perspective.

[31]   In paragraph 84 Dr. Chenier says that “By legitimizing acts of discrimination, it sends a clear message that discrimination is acceptable and justifiable and will be defended.” TWU says that is not an opinion. It is a form of argument. In a sense that’s right. It sets out a premise and from that premise infers a conclusion. It is a conclusion however that is within Dr. Chenier’s general area of expertise. To the extent that it is an argument it is not of the nature of a legal argument that ought to be struck from the affidavit.

[32]   In paragraph 88 Dr. Chenier states that the TWU admissions policy does not bar gays and lesbians from the school but it does “in fact discriminate against gays and lesbians as a group. One could argue that people who engage in other types of prohibited sexual behaviour are equally discriminated against.” The paragraph continues to make the point that others who are discriminated against by the “admission policy”, are not a distinct social group or social type and do not exist in a “political society”. They are not a socially, economically or politically vulnerable population or group.

[33]   TWU argues that this is outside the scope of Dr. Chenier’s expertise. TWU says that this is framed as argument or as a submission. Of course, it really doesn’t take an expert to explain that people who masturbate, to use her first example, do not form a “social group”. The purpose of the paragraph is to distinguish the gay and lesbian community from others whose behaviours might be prohibited by the TWU Community Covenant. The comments in that paragraph do not amount to a legal argument despite a rather disputatious tone.

[34]   In paragraph 90 Dr. Chenier says that the TWU policy is out of step with current government policies.  She says that choosing not to attend such a school would protect an individual from the damaging effects of living in the closet and the possible trauma of being expelled. That might indeed be true. It might even be self-evident. You don’t have to be an expert to say it. She goes on to state that a “public health campaign” to discourage gays and lesbians from attending TWU would be a partial solution. Again, that is an opinion but it doesn’t sound much like an historical one. 

[35]   Dr. Chenier compares the bar on non-celibate gays and lesbians to Queen’s University’s pre 1950 cap on the number of Jewish students who could be admitted and that this went hand in hand with the government policy regarding immigration. Once again, that is an analogy that a person who is a non-expert could make, but it does at least reference on historical fact.

[36]   The paragraph goes on to say that what is “historically distinct” is how the TWU policy is entirely out of step with current government policies. It is instituting and extending policies that existed for a short time and have been ruled a violation of the rights of Canadian citizens. She calls the policy “regressive “, contrary to current public opinion and the opinion of the majority of Christian Canadians. Once again, the comments convey a tone that is hardly restrained or measured. It’s not clear from the document upon what basis the statements about public opinion and the opinion of Christian Canadians are made. That’s beside the point at this stage. The comments in that paragraph are not so prejudicial that they need to be struck.  Furthermore, it is important that they remain so that the weight to be given the opinion as a whole can be assessed having regard to the entire opinion.

[37]   Finally, TWU objects to paragraph 93 of the affidavit on the basis that it too is a submission or argument. The paragraph starts with a statement about the advocacy of Christian clerics in the mid-1960s for lesbian and gay equality. That is the subject of Dr. Chenier’s current research. She goes on to state that today, those opposed to lesbian and gay equality draw on Christian ideology to justify their position.  She notes how “Christian attitudes” still play a role in public policy conversations about who should or should not be excluded and that those positions vary. She notes that “from a historical point of view” it makes sense that present-day Christians who oppose homosexuality and gay and lesbian equality occupy a minority position.  That opinion is tied to an historical analysis, and as Dr. Chenier has noted, she needs to keep abreast of contemporary social and political issues as an historian.

[38]   The next sentence takes a turn that seems to equate the belief that homosexuality is sinful with scientific racism. In that sense it is argumentative. “Just as the majority of Canadians no longer believe in scientific racism, they no longer believe that the purpose of sex is procreation, nor do they hold the belief that homosexuality in inherently sinful or abhorrent”. The turn of phrase doesn’t leave much doubt about Dr. Chenier’s views of evangelical Christian moral views.  It’s difficult to fit it within the scope of an historical opinion. It isn’t exactly argument though. 

[39]   The paragraph then goes on to state that shifting Christian views on race and sexuality change “in response to the worldviews of those in power”. The paragraph conveys the idea that Christian views change over time. It is not in the form of an argument or a submission and will not be struck.

[40]   Dr. Chenier’s affidavit does contain elements of sometimes strongly worded advocacy.  There are parts of the report that amount to commentary on the current state of Canadian society, politics and public opinion.  To some extent those comments are within Dr. Chenier’s expertise.  Rather than striking some portions of the document, on the basis of their being beyond the proper scope of an expert opinion they will be considered in assessing the weight to be given to the entire report. That would seem to be a better approach than editing out some references without having regard to what that might mean for the interpretation of the opinion as whole.

Dr. Bryson’s Report

[41]   TWU also objects to portions of the affidavit of Dr. Mary Bryson. Dr. Bryson is an expert on education and gender and sexual orientation studies. 

[42]   In paragraph 8 of the affidavit Dr. Bryson describes TWU’s Community Covenant. She says that signatories pledge that sexual intimacy cannot be expressed or enacted outside the bonds of “an arbitrarily restricted state of marriage”.  TWU says that this characterization is a submission. Whether the definition of marriage as maintained by TWU is or is not arbitrary is a matter of opinion. Dr. Bryson as an expert in gender and sexual orientation studies is entitled to express an opinion on that issue.  She goes on to state that requiring gay and lesbian students to be celibate “excludes them from applying” to TWU.  TWU says that this conclusion is not within her area of expertise. She is not an expert on the admissions policy of TWU.  But, Dr. Bryson’s point is that a married gay couple at TWU would not be permitted to act like a married couple and would, in effect, be excluded. That is an area that is within the scope of her expertise. It is not an opinion on the policy but an opinion about married gay and lesbian couples.

[43]   In paragraph 10 of her affidavit Dr. Bryson says that  the requirement to sign the Community Covenant “unfairly curtails those LGB Trinity Western University community members’ “ Rights to Recognition”. Whether the requirement is unfair or not is a matter for argument. It is however one word within the context of a 15 page affidavit in which no effort has apparently been made to disguise or hide Dr. Bryson’s views about TWU and the Community Covenant.   Its prejudicial effect is minimal.

[44]   In paragraph 11 Dr. Bryson uses the phrase “the insistence on the right to practise forms of discrimination”. TWU says that this is a submission coupled with a legal conclusion. The use of the word discrimination isn’t a legal conclusion when used in the sense it’s used in the report.

[45]   In paragraph 13 Dr. Bryson once again asserts that the practice by TWU is a discriminatory educational practice. She goes on to say that it will “detrimentally affect academic outcomes, and personal self- esteem, which can lead to health disparities, disparities in longevity and relatedly, suicidality, lifelong personal hardships and negative career outcomes.” It’s a broad statement but one that is within her area of expertise. It’s not a submission but an assertion of social science facts.

[46]   TWU objects to the contents of all of paragraph 15 of the affidavit. TWU says that the paragraph is a submission and a legal conclusion on matters of fact outside Dr. Bryson’s knowledge.  In summary, the paragraph contains a comment that within the field of education, research as typically interpreted, defines the harm caused by the requirement to sign the Community Covenant while being gay or lesbian as a “systematic deprivation of LGB students’ Rights to Health, and Rights to recognition”. Dr. Bryson goes on to say that it is “widely considered axiomatic by experts in Human Development” that such exclusion and the requirement to conceal LGB identity and expression combine to produce disparities in academic outcomes and health.  The concept is referred to as “minority stress”. The comments are within Dr. Bryson’s expertise and purportedly supported by academic research.

[47]   TWU objects to paragraph 17 of the affidavit. In the second sentence Dr. Bryson notes that research confirms that the pressure to conceal LGB identity can create a stressful campus climate for sexual minority members of certain Catholic secondary schools and districts where the rights of gay and lesbian students are “explicitly and unfairly restricted, abrogated and curtailed.”  Her reference to the unfairness of the restrictions in its context is not particularly prejudicial. The reference to a “homophobic” educational environment isn’t a direct accusation or argument that TWU is homophobic. It’s a reference to a hypothetical environment which may or may not apply to TWU. 

[48]   The paragraph goes on to reference the work of T.D. Callahan who is said to argue that the authorities of school district “must abide by those federal laws such as the Charter of Rights and freedoms that are intended to protect sexual minority citizens from harms”.  While that may be phrased squarely as a legal argument or perhaps more accurately as a legal conclusion unsupported in its context by any argument, it is hardly controversial. Public school districts have to comply with the provisions of the Charter when dealing with sexual minority citizens. There is no indication of how that is to be done, how compliance is defined or how it relates to the facts of this case.

[49]   The last sentence contains wording that could be both ambiguous and potentially loaded. It’s hard to tell. It might be said at the outset that if it’s expressed in language that the judge can’t even understand, it doesn’t have much effect, prejudicial or otherwise. The sentence says that exclusions experienced by sexual minority students and teachers at institutions where discrimination is publically sanctioned produce detrimental effects. That’s understandable. That statement is followed by a dash and the phrase, “impacts of minority stress that enact violence and harm both individually and in relation to groups.”

[50]   It is not clear what the phrase “enact violence and harm” means. Is the violence part of the harm?  Does it really mean “other harm”? Violence can mean physical violence but the use of the word “enact” would not normally convey that sense. Perhaps it means “cause violence”? But if that’s what it means why was the word “enact” used?  If that is the case, the minority stress would be causing or “enacting” the violence.

[51]   It could mean “to do violence to” as in to do violence to the meaning of a word.

[52]   In any event, an interpretation of the sentence without further explanation as to its meaning is purely speculation. Because it conveys no meaning it’s not prejudicial at this stage in the process. There is no reason for it to be struck.

[53]   TWU objects as well to paragraph 18 of the affidavit. In it Dr. Bryson says that the TWU Community Covenant systematically prohibits LGB students and faculty from access to the “Right to Health” and the “Right to Marriage” and that, in her opinion it is discriminatory. TWU says that this is a question of fact on which she has no personal information or a question of law on which she has no expertise. It is a question of fact but it is a question of fact upon which anyone who can read the Community Covenant can speak. It is intended to place the Covenant within the context of the concept of “Right to Health” and “Right to Marriage”. If her interpretation of the Community Covenant is wrong, it will go to the weight that should be given to the opinion itself.  Once again the comment that the TWU Community Covenant is discriminatory is not a legal opinion. It is merely an observation that LBG students are treated in a way that is different from other students.

[54]   TWU objects to paragraph 20 of the affidavit.  It argues that after the first sentence of the paragraph it is a submission. The paragraph contains Dr. Bryson’s comments that the TWU Community Covenant discriminates “against the Right to Marriage” for LGB people who do not self- identify as such. The second sentence reads as follows; “It is important to point out at this juncture, then, that the Trinity Western Covenant discriminates against the Right to Marriage for persons who attempt to exercise their rights regardless of whether those folks self-identify as LGB.”

[55]   While the discrimination might not be “against” the “Right to Marriage”, the intent appears to be to convey the idea that discrimination is against LGB people who do not self-identify. Statistics significantly underestimate the number of people in same sex relationships. The suggestion is that if there is discrimination it is then against a greater number of people than otherwise thought to be the case.

[56]   The comment does use the word “discrimination” once again. It should not be read as a legal conclusion.

[57]   The paragraph goes on to make the point that it is reasonable to conclude that there is a larger than currently estimated prevalence of prospective students whose “Charter rights on the grounds of sexual orientation would also be targets of discrimination”. It is an acknowledgement that gay and lesbian people do have equality rights under the Charter and there are more of them than statistics would suggest.  It isn’t put forward as a legal conclusion. It’s provided here to provide context for what comes after.

[58]   Dr. Bryson goes on to say that there is a need for co-ordinated anti-discrimination policies in the context of legal education. That is within her area of expertise.

[59]   In paragraph 24 of the affidavit Dr. Bryson says that rights have been “unduly foreclosed” by the TWU covenant. She goes on to say that the fact that the NSBS has voted to refuse accreditation “appropriately and productively anticipates the need to address fairly and proactively the recruitment of sexual minorities into the legal profession and importantly, represents a constructive refusal to add to, or to appear to condone, the deleterious impacts of minority stress already experienced by LGB people in the larger community.” That is advocacy on the very matter before the court.  In its favour it can at least be described as being openly and unapologetically argumentative.  Its blatant nature limits its prejudicial effect. The fact that it is argument will be relevant to the assessment of the value of not only the statement itself but of the entire affidavit of which it is the concluding salvo.

[60]   Taken as a whole, both affidavits do comply with the basic requirements of expert opinion. The elements of argument contained in both involve the kind of prejudice that can be minimized by acknowledging them for what they are.   They are not a subtle attempt to slip an argument past the gatekeeper, hidden in an expert opinion.  In the context of an expert report on legislative or social facts latitude can be given to allow the entire report to become a part of the record. Editing of the reports, in the absence of some more significant prejudicial effects being shown, could result in a loss of some of the full context that may be required both for understanding of the report as a whole and assessing the weight to be given to its conclusions.

Questions under Civil Procedure Rule 55

[61]   The second motion can be dealt with more briefly. TWU has put a number of questions in writing to each of the experts. The NSBS objects to the questions.

[62]   Rule 55.11 of the Nova Scotia Civil Procedure Rules does permit a party to submit written questions to an expert being put forth by another party. The questions can only call for information that isn’t privileged and is relevant to the expert’s qualifications, a factual assumption made by the expert or the basis for an opinion expressed in the expert’s report. The argument here is that the questions posed go beyond the scope of those permitted by the rule.

Questions for Dr. Chenier

[63]   With respect to Dr. Chenier, a number of factual assertions were put forward and she was asked to respond as to whether she agreed with them. That has now been amended. Dr. Chenier is asked whether in formulating her opinion she considered the following, and if not why not:

1.       That evangelical Christians have similarly adopted mechanisms to allow them to cope with the fear of discrimination, which range from passing, censoring, being implicitly out and bring explicitly out (as she notes in para. 69);

2.       That when children come out to their parents as evangelical Christians, parents of a different belief system have similarly sometimes attempted to have them forcibly entered into treatment or re-education ( as she notes in para. 76);

3.       That evangelical Christians find it is an important  counterweight to be part of a community where they find others like themselves (as she notes in para. 78);

4.       That studies show that for evangelical Christians to be in a community that denies them full humanity diminishes their sense of self perception and endangers their mental and physical health ( as she notes in para. 79)

5.       Evangelical Christians typically form their faith in teenage and early adult years rather than at birth and that family members sometimes ostracize the person who is struggling to identify as an evangelical Christian and parents and other mentors are unable to provide any clarity to their experiences (as she notes in para 80);

6.       It is through social, religious and political contact with other evangelical Christians that survival and coping skills are learned ( as she notes in para 81);

7.       That being in the company of other evangelical Christians affirms their sense of dignity (as she notes at para. 82).

[64]   Once again, Dr. Chenier is asked whether she considered any of those things in formulating her opinion. If she didn’t, she’s asked why she didn’t consider them. TWU says that the intent of the questions is to determine whether Dr. Chenier gave equal or any consideration to “other marginalized groups and more importantly the marginalized group at issue in these proceedings, Evangelical Christians”.

[65]   The NSBS objects to the factual underpinnings of the assertion that Evangelical Christians are a marginalized group. The statements put forward and upon which Dr. Chenier is asked to comment have no evidentiary basis.

[66]   The statements put forward are not evidence. Dr. Chenier is simply being asked whether she considered these assertions. It is open for her to state that she is an expert on the experience of lesbians, gays and other sexual minority groups and is not qualified to comment on the experience of Evangelical Christians. If she does maintain that she is qualified to comment on the history and experience of Evangelical Christians she can indicate whether she considered each of the assertions. If the assertion is in her opinion not a valid assumption she would then have no reasons to consider it. If it is a valid assumption she would explain whether or in what manner she considered it.

[67]   The purpose of the questions is not to convert the opinion into something that it was never intended to be. The opinion specifically differentiates the experience of people in the gay and lesbian community from the experiences of others. The questions go to the basis for that opinion.

 

 

 

Questions for Dr. Bryson

[68]   The questions for Dr. Bryson are somewhat different. They set out factual assertions with respect to TWU and ask Dr. Bryson to agree or disagree with them.

1.       There is not a single case of a graduate of TWU discriminating against a person on a basis of sexual orientation referred to in the literature;

2.       There is not a single case of a student at TWU suffering from “health disparities, disparities in longevity and relatedly, suicidality, life-long personal hardships or negative career outcomes” as a result of his or her sexual orientation referred to in the literature,

3.       Although TWU has graduated nurses and teachers and other Professionals there is not a single documented case in the literature of discrimination or other harm suffered by a student taught by a TWU graduate or patient cared for by  TWU graduate,

4.       There is no documented evidence that because the BC College of teachers admits graduates of TWU there are increases in “psychiatric disorders and comorbidity among LGB individuals living in BC”,

5.       There is no documented evidence that because the BC College of Teachers admits graduates from TWU that has led to “institutionalized discrimination” or “serious consequences for the psychological wellbeing of students” in BC,

6.       There is no documented evidence that because the College of Registered Nurses of British Columbia admits graduates of TWU there are increases of psychiatric disorders and comorbidity and LGB individuals living in BC”,

7.       There is no documented evidence that because the College of Registered Nurses of British Columbia admits graduates of TWU that has led to “institutionalized discrimination” or “serious consequences for the psychological wellbeing of patients” in BC,

8.       None of the research referenced in para. 13 notes any harms to students in public schools when evangelical Christians are separately educated in separate schools,

9.       TWU teaches course in sex and gender studies and has students who have identified themselves as LGBTQ as members of their student community.

[69]   The NSBS objects to those questions. It argues that they do not seek information relevant to Dr. Bryson’s qualifications, a factual assumption that she has made or the basis of her opinion.

[70]   Dr. Bryson outlines the broad range of harms that she says are caused by the TWU Community Covenant. The report notes that the literature is replete with evidence that documents the specific and persistent harms caused by discrimination against LGBT students. Dr. Bryson refers to large-scale empirical research  recently carried out in British Columbia and elsewhere that provides “robust and generalizable” evidence that there is persist and significant harm done to LGB persons in discriminatory environments. Those harms include higher rates of depression, increased suicidality and substance abuse.

[71]   Dr. Bryson‘s opinion is not about discrimination in general. It goes directly to the issue of discrimination at TWU and the effects of that discrimination on the LGBT community beyond TWU. The opinion is very wide in its scope. When an opinion is so wide in its conclusions, there must be some ability to question how those broad conclusions were reached and what evidence was or was not used.

[72]   The questions asked by TWU could be seen as merely an attempt to have facts put before the court through Dr. Bryson. The assertions set out in the questions, once again, aren’t evidence. Dr. Bryson is qualified to comment on the literature in this subject area. She can say whether or not the literature to her knowledge contains the references to which the questions direct her. That is an appropriate line on questioning under Rule 55. It goes to the basis for her opinion.

[73]   The ninth question is different. It makes a factual assertion that TWU teaches sex and gender studies and has students who identify themselves as being LGBTQ. It does not relate to the literature in the field but asks Dr. Bryson to confirm a fact about TWU. That does not deal with the basis of her opinion and is not a proper question under Rule 55.

Costs

[74]   Given the mixed success in the two motions there will be no order for costs.

 

 

                                                J.