Court File No. 27168

IN THE SUPREME COURT OF

(On Appeal from the Court of Appeal for British Columbia)

BETWEEN:

THE BRITISH COLUMBIA COLLEGE OF TEACHERS APPELLANT (Respondent)

and

TRINITY WESTERN UNIVERSITY and DONNA GAIL LINDQUIST

RESPONDENTS (Petitioners)

and

EGALE CANADA INC

Moving Party/ Proposed Intervener

______

AFFIDAVIT OF JOHN FISHER ______

I, JOHN FISHER, of the City of Ottawa, in the Regional Municipality of Ottawa-Carleton, MAKE OATH AND SAY AS FOLLOWS:

1. I am the Executive Director of Inc. (hereafter referred to as "EGALE") and as such, I have personal knowledge of the matters to which I hereinafter depose. 2

The Structure and Objectives of EGALE

2. The acronym “EGALE” stands for Equality for Gays and Everywhere.

EGALE is a federally-incorporated not-for-profit organization that advances equality and justice for lesbians, gays and bisexuals across Canada.

3. EGALE was founded in 1986. It is Canada's only national equality rights organization advocating for lesbians, gays and bisexuals and has members in every province and territory of

Canada.

4. The objectives of EGALE, as set out in the organization's by-laws, include developing expertise in issues that affect equality and justice for lesbians, gays and bisexuals; making that expertise available to the general public; communicating and cooperating with others who are interested in advancing equality and justice for all disadvantaged groups; lobbying governments on issues that affect equality and justice for lesbians, gays and bisexuals; and educating the public on issues relating to in general, and to lesbians, gays and bisexuals in particular.

5. The organizational structure of EGALE comprises a twelve-person Board of Directors, the Executive Director, six Standing Committees, Regional Coordinators in each province and territory, and the general Membership. Four of the Board positions are held by the Executive

Officers of EGALE, being the President, Vice-President, Secretary and Treasurer. The twelve 3

Board positions are filled by the election by the Membership of a male and Board representative from each of six different regions of Canada.

EGALE's Expertise in Addressing the Issues before the Court

6. Since its inception, EGALE has been committed to advancing both equality and justice for lesbians, gays and bisexuals in Canada. This includes a commitment to safeguarding the constitutional rights of lesbians, gays and bisexuals to freedom from and freedom of expression.

7. EGALE's activities include: legal research and consultation on subjects that concern lesbians, gays and bisexuals; interventions in test case litigation challenging alleged violations of the rights of lesbians, gays and bisexuals; public education the rights of lesbians, gays and bisexuals; and appearances before governmental committees dealing with important issues of concern to lesbians, gays and bisexuals.

8. EGALE has intervened in numerous Charter of Rights and human rights cases dealing with issues of equality and discrimination against lesbians, gays and bisexuals. In each case,

EGALE has sought to provide the Court with a substantive equality analysis that takes into account the social, political and legal context of the lives of lesbians, gays and bisexuals in

Canada. The cases in which EGALE has intervened before this Honourable Court include:

(i) Mossop v. Canada, [1993] 1 S.C.R. 554. In this case, EGALE coordinated a coalition

of equality-seeking groups to intervene before this Honourable Court in support of equal

funeral leave for same-sex families; 4

(ii) Egan and Nesbit v. Canada, [1995] 2 S.C.R. 513. EGALE intervened before this

Honourable Court to challenge the opposite sex definition of “spouse” in the federal Old

Age Security Act. The Court agreed that the opposite sex definition of “spouse” is

discriminatory, but ruled that the federal government would be allowed time to bring its

laws into conformity with the Charter of Rights;

(iii) Vriend v. Alberta, [1998] 1 S.C.R. 493. EGALE successfully intervened before this

Honourable Court in Vriend v. Alberta to support legal protection from discrimination

for lesbians, gays and bisexuals in Alberta;

(iv) M v. H and , [1999] 2 S.C.R. 3. This case involved a challenge to the opposite-

sex definition of “spouse” in Ontario’s Act. On May 20, 1999, this

Honourable Court ruled by a majority of 8 to 1 that Ontario must provide equality to

those in same-sex relationships. EGALE’s submissions were cited favourably on four

separate points in the judgment of the majority;

(v) Little Sisters v. Canada Customs. On July 14, 1999, this Honourable Court granted

EGALE intervenor status in the case of Little Sisters v. Customs Canada. This case

involves a challenge by the Vancouver-based bookstore Little Sisters to the prior

restraint provisions of federal customs legislation, pursuant to which materials deemed

obscene may be detained and destroyed by customs officers. I am informed and verily

believe that this matter is scheduled to be heard on March 16, 2000.

9. EGALE has also intervened before other Courts and tribunals in a number of important human rights cases: 5

(i) EGALE, along with 12 other equality-seeking groups, intervened jointly in the Ontario

Court of Appeal in the case of Rosenberg & CUPE v. Canada (1998), 158 D.L.R. (4th)

664, dealing with the issue of survivor pension benefits for same-sex spouses. In April

1998, the Ontario Court of Appeal unanimously ruled that the opposite-sex definition of

“spouse” in the pension registration provisions of the Income Tax Act was

discriminatory, constituted an unjustifiable violation of s.15 of the Charter, and must be

extended to include same-sex partners;

(ii) Hill v. Fredericton (City) Mayor, [1998] N.B.H.R.B.I.D. No. 1 (N.B. Bd. Inq.,

September 17, 1998): EGALE successfully intervened before a Fredericton Board of

Inquiry to support efforts to have and Pride Week officially proclaimed;

(iii) Re Hurley: EGALE intervened before the Ontario Court of Appeal to oppose the

extradition of a Canadian gay man to Mexico when it appeared that systemic

discrimination might limit his right to a fair trial;

(iv) Chamberlain et al v. Board of Trustees of School District #36 (Surrey): EGALE has

been granted leave to intervene by the British Columbia Court of Appeal and has filed

its factum in this challenge to a decision by the Surrey School Board to ban the use in

the classroom of materials depicting same-sex families. I am informed and verily

believe that this matter is scheduled to be heard from June 21 to June 23, 2000.

10. As EGALE's Executive Director, I was called to testify as a witness before the Canadian

Human Rights Tribunal in Moore & Akerstrom v. Canada, (1996), 25 C.H.R.R. D/351.

EGALE's then Vice-President, Lawrence Aronovitch was also called as a witness to testify before the Canadian Human Rights Tribunal in the case of Laessoe v. Air Canada (1996), 27 6

C.H.R.R. D/1. Both of these cases involved complaints about alleged discrimination based on sexual orientation. In both cases, our evidence was based on knowledge, information and expertise developed through our involvement with EGALE and its activities.

11. As EGALE’s Executive Director, I have twice presented judicial education workshops at the invitation of the National Judicial Institute, discussing lesbian and gay equality issues with Ontario Court judges.

12. Representatives of EGALE have also testified before a number of government

Committees and Commissions, and participated in public consultations, including:

(i) the Royal Commission on New Reproductive Technologies (addressing the needs,

concerns and reproductive rights of lesbians, gays and bisexuals);

(ii) the Senate Constitutional and Legal Affairs Committee (supporting Senate Bills S-15

and S-2, which proposed adding "sexual orientation" as a prohibited ground of

discrimination in the Canadian Human Rights Act);

(iii) the House of Commons Human Rights Committee (supporting proposed amendments

to the Canadian Human Rights Act, as well as measures to recognize same-sex spousal

relationships);

(iv) the House of Commons Committee on Justice and Legal Affairs (supporting Bill C-41,

which provides for more severe penalties for crimes motivated by hatred on certain

grounds, including sexual orientation);

(v) the House of Commons Committee on Human Resources Development (ensuring that

the Social Security Review recognized the diversity of family relationships, including 7

same-sex relationships, when allocating government benefits on the basis of relationship

status);

(vi) the Ministerial Legislative Review on Immigration issues (advocating for a recognition

of same-sex partners as "spouses" for the purposes of immigration sponsorship);

(vii) Federal government consultations concerning the content of the 2001 census and its

application to lesbians, gays and bisexuals and those in same-sex relationships.

(viii) the joint Parliamentary Committee on Custody and (addressing the application

of current custody laws to the children of lesbian, gay and bisexual parents);

(ix) the House of Commons Sub-Committee on Tax Equity for Families with Dependent

Children (dealing with the uneven application of current tax laws for children and

parents in same-sex households).

13. EGALE has also supported a number of provincial and territorial initiatives, including:

(i) presenting written submissions to the government of British Columbia in support of

measures to protect transgendered people from discrimination in British Columbia’s

human rights legislation;

(ii) participating in consultations to review the family law legislation of the Northwest

Territories;

(iii) supporting provincial efforts to advance omnibus relationship legislation in Ontario

(Bill 167);

(iv) supporting community efforts in Alberta to secure equal protection from discrimination

for lesbians, gays and bisexuals; 8

(v) supporting measures to add “sexual orientation” to the human rights legislation of

Prince Edward Island and Newfoundland.

14. EGALE has been accredited to participate in international conferences to advance understanding of lesbian and gay human rights, including presenting to the plenary session of the United Nations World Conference on Human Rights in Vienna, participating in the World

Conference on Women in Beijing, and speaking at the International Year of the Family

Conference in Montreal.

15. In addition, EGALE distributes a newsletter across Canada; has prepared a number of

Court Challenges Program Case Development Reports; has written a legal analysis for the

Court Challenges Program of the impact of the decision of the Supreme Court in Egan v.

Canada; has been commissioned to write a similar analysis of the impact of the decision of the

Supreme Court in Vriend v. Alberta; develops Fact Sheets on current issues affecting the lesbian, gay and bisexual communities; maintains a Website (www.egale.ca) and two e-mail discussion groups to help keep our communities informed across the country; has participated in seminars on lesbian and gay equality issues; has participated in a numerous public education programs; and has undertaken many individual human rights projects.

EGALE's Submissions on the Appeal

16. EGALE has a strong interest in the outcome of the within appeal, which raises issues of national importance for our members. EGALE supports the authority of the Council of the

British Columbia College of Teachers (“the Council”) to develop and maintain professional 9

standards to help ensure a commitment to diversity and pluralism within the public education system. In EGALE’s submission, the resolutions of the Council should properly be considered in the context of the disadvantage experienced by lesbian, gay and bisexual youth in the school environment, and the importance of professional bodies setting standards in the public interest to ensure teacher training programs which will equip prospective teachers to address a full range of diversity issues within the public education system. The Council was mandated by its enabling legislation to take into account the “public interest” in setting professional standards, which requires a consideration of the values underpinning the Charter of Rights, human rights legislation and the public education system.

17. If granted leave to intervene, EGALE will address relevant issues from a perspective that is materially different from any other party or intervenor. In particular, EGALE will make the following submissions:

(a) Council resolution to be measured in context of issues facing lesbians and gays in public education system:

18. In assessing the “public interest”, the Council was entitled to take into account the need for teachers proposing to teach in the public education system to be trained and qualified to address a broad range of diversity issues. This requires consideration of the particular issues facing young lesbians, gays and bisexuals within the education system. Ubiquitous cultural and social references to and the absence of similar references to lesbian and gay sexuality and relationships result in the popular misconception that heterosexuality is natural and normal, whereas lesbianism and are deviant and perverse. The normative 10

status of heterosexuality fuels social against lesbians, gays and bisexuals. Moreover, many lesbians, gays and bisexuals, particularly youth, internalize the prevailing message that they are not normal and consequently suffer insecurity, depression, and shame.

19. In the educational setting, the absence of references to lesbians, gays and bisexuals in appropriate contexts creates a learning environment in which young people are raised unaware of the diversity of Canadian society, and where the contributions of lesbians, gays and bisexuals to Canadian history, art, literature, culture, family and social life are systemically devalued. Lesbian, gay and bisexual youth often face name-calling and violence in the schoolyard, internalize messages of exclusion and “not belonging”, and experience feelings of isolation which contribute to inordinately high rates of youth suicide. Attached hereto and marked Exhibit “A” to this my affidavit is a copy of a report which EGALE was commissioned to write by the United Church of Canada dealing with issues affecting lesbian, gay and bisexual youth. This report, entitled “Reaching Out: A Report on Lesbian, Gay &

Bisexual Youth Issues in Canada” was completed in February 1999, and covers many issues relevant to the school environment, such as self-acceptance, youth suicide, access to materials, access to safer-sex information, school curricula and services, health issues and the need for peer and teacher support.

20. The detrimental impact of a non-inclusive school environment is not limited to lesbian, gay and bisexual youth. Students perceived as lesbian, gay or bisexual similarly experience disadvantage, as do the children of lesbian, gay or bisexual parents, and those with lesbian, gay or bisexual friends and family-members. In the absence of an inclusive 11

school environment, heterosexual youth, in turn, may develop attitudes which cause them to view lesbians, gays and bisexuals as less worthy of being treated with equal dignity and respect.

21. In EGALE’s submission, these factors provide an essential context for the Court’s consideration of the reasonableness of the Council’s resolutions and the extent to which the

Council had jurisdiction to conclude that the program of Trinity Western University

(“TWU”) would not adequately equip prospective teachers to deal with the complex issues of a pluralistic public school environment in a tolerant, accepting and inclusive manner.

(b) TWU “Community Standards” designed to instill anti-gay attitudes inconsistent with values of public education system:

22. In EGALE’s respectful submission, the majority of the Court of Appeal failed to take into account the fact that TWU’s “Community Standards” contract is not limited to restricting the behaviour and conduct of students. It also explicitly seeks to instill in students anti-gay and lesbian attitudes and beliefs which are antithetical to the values of the public education system, in the hope that students will carry these values over into their professional life. TWU’s

Community Standards are explicitly expressed to reflect “a clear mission” to develop “godly

Christian leaders … with thoroughly Christian minds” who will fulfill “the Great Commission, serving God and people in the various marketplaces of life.” The Community Standards, including the condemnation of homosexual behaviour, are expressed to represent the “core values” of the University. In EGALE’s respectful submission, the Council was entitled to take 12

into account whether the condemnation of homosexuality, as part of the core values that graduates of TWU were expected to carry into “the various marketplaces of life”, is inconsistent with the values of the public education system.

(c) Untenability of distinction between homosexual identity and behaviour:

23. TWU seeks to justify its Community Standards by reference to a purported distinction between homosexual identity and homosexual behaviour. In EGALE’s submission, the suggestion that it is possible to “love the sinner but hate the sin” is an artificial distinction which is impossible to maintain in a human rights context. Lesbian and gay identity and conduct are inextricably intertwined, and attempting to separate them would be analogous to protecting religion but not religious practices, or protecting the French language, but not its use.

24. TWU has filed an affidavit of Dr. Richard Penner, President of the Evangelical Free

Church of Canada, whose members must comprise a minimum of two-thirds of the Board of

Governors of TWU. Dr. Penner’s evidence is that homosexual behaviour is an “abomination” in relation to which biblical teachings encourage people to “change their behaviours”. Pressure to change their sexual orientation has proved tremendously damaging to young lesbians, gays and bisexuals seeking to come to terms with their sexual orientation, and has been identified as 13

a significant factor contributing to depression and youth suicide. The approach to sexual orientation issues advanced by TWU directly reinforces the of the Council’s concerns.

(d) The impact of TWU’s code of conduct needs to be assessed with an awareness of systemic discrimination and lesbian and gay invisibility issues:

25. The Court of Appeal considered that there is no evidence of students being denied admission to TWU or expelled based upon non-compliance with the Community Standards. In

EGALE’s respectful submission, this narrow determination of what constitutes evidence of discrimination overlooks the reality that many lesbians, gays and bisexuals feel compelled to conceal their for fear of discrimination. This Honourable Court recognized in the M v. H case the detrimental impact upon the dignity and self-worth of lesbians, gays and bisexuals as a result of pressures to remain invisible, which contributes to the “erasure of [the] existence” of lesbians, gays and bisexuals. The impact of TWU’s Community Standards contract cannot be measured solely by reference to external manifestations of discrimination, but must also take into account the more insidious effects of systemic discrimination and attitudes contributing to the invisibility and erasure of lesbian, gay and bisexual self-identity.

(e) Council legitimately considered TWU core values and Community Standards to be inconsistent with values of freedom of expression:

26. The Charter value of freedom of expression is premised upon the acceptance of a wide variety of beliefs. The approach of TWU is inconsistent with the principles of freedom of expression by requiring all students to subscribe to a statement of beliefs that they may not 14

agree with. In EGALE’s experience, there are many lesbians, gays and bisexuals, and others with lesbian, gay or bisexual friends or family-members, who share sincere religious beliefs and may wish to receive their education in a Christian context such as that offered by TWU, but who do not necessarily subscribe to the view that homosexuality is a sin or perversion or who at least feel that these issues should be open to debate. In EGALE’s submission, the Council, in basing its decision at least in part upon concerns about TWU’s requirement that students commit to a “homogeneous world-view”, appropriately recognized that a school and university environment flourishes when students are encouraged to question, critique and decide for themselves which ideas they will accept or reject. Although TWU professes a commitment to academic freedom, the Community Standards contract is explicit that students who do not subscribe to the contents of the document should pursue their studies elsewhere.

EGALE’s Unique Perspective and Expertise on the Issues before the Court

27. I believe that EGALE’s unique perspective, as further outlined below, will be substantially different from that of the other parties and intervenors, will not broaden the issues on appeal, and will materially assist the Court in reaching a determination on the issues before it.

28. A full consideration of the issues raised by this appeal requires the benefit of the perspective of an organization with a thorough understanding of the concerns of lesbians, gays and bisexuals. EGALE is ideally placed to position the legal issues within the framework of the social reality of lesbians, gays and bisexuals in the education system, lesbian, gay and bisexual invisibility issues, the artificiality of a distinction between homosexual identity and conduct and 15

the extent to which Council’s decision appropriately balances the values of non-discrimination based on sexual orientation, freedom of expression and freedom of religion.

29. To the best of my knowledge, none of the other parties or intervenors has a specific expertise in lesbian, gay and bisexual issues. EGALE’s perspective will therefore be unique in assisting this Honourable Court with a resolution of the issues raised by this appeal. In addition to its expertise in addressing equality rights, EGALE has a particular expertise in addressing matters relating to education, freedom of expression, and the balancing of religious freedom with equality issues, as they pertain to lesbians, gays and bisexuals.

30. Some specific activities of EGALE relevant to youth/education issues, freedom of expression and freedom of religion include:

(i) EGALE is on an Advisory Board for the “Safe Spaces Project” - a national initiative,

funded by the federal Department of Health, to help produce educational materials for

both heterosexual and lesbian and gay youth on lesbian, gay and bisexual issues, and to

create safe spaces for lesbian, gay and bisexual youth;

(ii) The Surrey School Board case, in which EGALE has been granted intervenor status

before the British Columbia Court of Appeal, involves an analysis of the extent to

which the provision of lesbian and gay materials in schools is compatible with the

religious views of some parents;

(iii) EGALE representatives have often been asked to speak at meetings of lesbian, gay

and bisexual youth, including the Victoria Youth Pride Society in Victoria, Pink

Triangle Services Youth Group in Ottawa and the Lesbian and Gay Health Services 16

Centre in Saskatoon. EGALE has made similar presentations to numerous parents’

groups, particularly branches of PFLAG (Parents, Friends and Families of Lesbians

and Gays), in communities across Canada;

(iv) EGALE has testified before the Canadian Radio-television and Telecommunications

Commission to support diversity in Canadian broadcasting policy, and specifically to

oppose censorship on the Internet, because we recognize that the Internet is a valuable

resource for younger lesbians, gays and bisexuals seeking access to accurate information

about sexual orientation. Internet “blocking” software is often used by parents and

schools to block access to any material relating to lesbians, gays and bisexuals, even

political and social commentary or educational information about health and safer-sex

issues;

(v) Materials presented by EGALE at Judge’s Conference workshops canvassed issues such

as access to lesbian and gay educational materials and balancing religious viewpoints

with equality issues;

(vi) On July 16, 1999, EGALE received an International Human Rights Award from the

Universal Fellowship of Metropolitan Community Churches. This award was conferred

at the Fellowship’s World Jubilee and 19th General Conference in Los Angeles, and

was presented to EGALE as “the Canadian national gay and lesbian organization which

has directed the struggle in their culture to make a difference for our community”;

(vii) EGALE was involved in organizing a public vigil when Rev. Fred Phelps, an American

evangelist, sought to burn the Canadian flag at the Supreme Court building in protest at

the decision of this Honourable Court in M v. H. Part of that vigil included coordinating

the participation of religious leaders from a broad variety of denominations who 17

expressed the view that affirming equality rights for lesbians, gays and bisexuals is

compatible with the values of religious tolerance and acceptance;

(viii) EGALE has also worked closely with the United Church of Canada in preparing the

report attached as Exhibit “A”, and in developing their youth education program for

lesbians, gays and bisexuals;

(ix) As EGALE’s Executive Director, I teach an upper-year course on Lesbian and Gay

Legal Issues in the Faculty of Law at the University of Ottawa and a first year course on

Lesbian and Gay Issues under the Charter of Rights in the Faculty of Public

Administration at Carleton University. Each course canvasses education, access and

youth issues, among other subjects. The 1999 – 2000 term is the third year I have

taught the Ottawa course and the second year I have taught the course at Carleton.

31. In summary, EGALE has been at the forefront of the movement to ensure equality and justice for lesbians, gays and bisexuals in Canada, has frequently intervened in significant court cases, is familiar with youth, education and religious issues as they relate to lesbians, gays and bisexuals, and is in a unique position to provide this Honourable Court with a valuable perspective relevant to the points in issue.

No Prejudice to Court or Other Parties

32. I have reviewed the decision appealed from, the Court file and the appeal materials, and have had a number of conversations with counsel for the Appellant, who have confirmed that

EGALE will provide a useful perspective different than that of the existing parties. EGALE is 18

thoroughly familiar with the factual and legal issues raised in the present appeal. We have a positive working relationship with other organizations across Canada and will be able to liaise with any other groups intervening in support of the Appellant to avoid duplication of submissions or materials.

33. EGALE’s Legal Issues Committee consists of qualified professionals, academics, law students and researchers, who contribute significant expertise on a pro bono basis. EGALE has limited financial resources, however; we would not seek costs and would also request that we not attract liability for costs.

34. EGALE is also requesting leave to present oral submissions of not more than 15 minutes at the hearing of the within appeal. We have found that brief oral submissions are an effective means of informing the Court on issues relevant to the outcome of the appeal, and I believe that the fact that EGALE’s submissions, both written and oral, have often been cited in

Court judgments, demonstrates that these submissions have been found to be relevant and useful. Brief oral submissions in the within appeal will also permit EGALE to address any issues raised by other parties or intervenors in their written submissions and reply materials.

35. I swear this affidavit in support of EGALE's application to intervene on the hearing of the within appeal and for no other or improper purpose.

19

SWORN before me at the City of Ottawa in the )

Regional Municipality of Ottawa-Carleton on )

this 21st day of February, 2000 ) John W. Fisher )

Commissioner of Oaths