Judicial Biography: Justice Malcolm Rowe

Post 8/9 in TheCourt.ca’s Judicial Biography Series (Fall 2019)


Justice Malcolm Rowe is one of the Supreme Court of Canada’s (“SCC” or the “Court”) most recent appointees. In fact, Justice Rowe perhaps best represents some of the Court’s recent changes. Justice Rowe was the first Supreme Court Justice selected through Independent Advisory Board appointment process. Appointed to the SCC in 2016, Justice Rowe experienced the tail end tenure of former Chief Justice McLachlin as Chief Justice, and correspondingly the appointment of Justice Wagner as Chief Justice of the Court.

Much of Justice Rowe’s biography and professional life was canvassed by TheCourt.ca when His Honour was first nominated to the Court. In Justice Malcolm Rowe: An Introduction, Irina Samborski canvassed Justice Rowe’s legal career from his legal education at Osgoode Hall, to private practice focussing on international law, as well as time spent in the foreign service and Newfoundland public service. Justice Rowe was first appointed to the Newfoundland and Labrador Supreme Court in 1999 and subsequently elevated to that province’s Court of Appeal in 2001.

At the time of his appointment, the question was how Justice Rowe’s diverse experience – representing Canada abroad, serving the Newfoundland government’s executive, and as a trial and appellate level judge – would inform His Honour’s role on Canada’s highest court. As Ms. Samborski noted, Justice Rowe’s local and global experience may “have potentially solidified a dual perception of the Canadian nation in the Justice’s mind. This dual perception could contribute to an original form of judicial activism at the Court.”

While it is impossible to know what is inside a judge’s mind, or the philosophy that informs judicial decision-making, this post will examine Justice Rowe’s freedom of religion jurisprudence to evaluate his “original form of judicial activism.”

Justice Rowe and the Scope of s.2(a)

In just over a six-month span from November 2017 to June 2017, the SCC released three decisions touching on the scope of freedom of religion in Canada: Ktunaxa Nation v British Columbia, 2017 SCC 54; Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v Wall, 2018 SCC 26; and Law Society of British Columbia v Trinity Western University, 2018 SCC 32. Justice Rowe participated in all three cases and penned either majority or concurring opinions in all three. These decisions offer insight into His Honour’s approach to evaluating the scope of Charter rights as well broader issues including the relationship between the executive and judiciary.

Ktunaxa Nation v British Columbia

Ktunaxa Nation v British Columbia (Ktunaxa) raised novel and complex questions regarding freedom of religion for Indigenous peoples. Some of these issues are covered TheCourt.ca’s analysis of the decision found here and here. At issue in Ktunaxa was a proposed ski resort in British Columbia’s Qat’muk region; after lengthy consultation with the Ktunaxa, the Minister approved the resort despite the Ktunaxa’s assertion that the Grizzly Bear Spirit would forever leave the region if it was permanently settled. The question for the SCC was whether the Minister’s decision unjustifiably interfered with the Ktunaxa’s freedom of religion.

The test for establishing a breach of freedom of religion was established by the SCC in the 2003 Amselem case. A court must inquire if the government interfered with a claimant’s sincerely held religious belief. If so, the analysis shifts to the s. 1 Oakes analysis to determine if the infringement could be justified. The recent trend in s.2(a) jurisprudence is for the Court to find a s.2(a) infringement and therefore the crux of the analysis occurs at the proportionality stage. In Ktunaxa, Chief Justice McLachlin and Justice Rowe, writing for the majority of the Court, departed from this trend. The majority held that freedom of religion does not protect the objects of belief, in this case, the Grizzly Bear Spirit. The Ktunaxa’s claim, then, failed at the first stage of Charter adjudication (i.e. was there a breach) and did not make it to the second step (i.e. Oakes proportionality analysis). Finding that a claim is outside the scope of s. 2(a) is significant because it prima facie denies Indigenous peoples the protection of the Charter’s freedom of religion guarantee for their spiritual practices.

We can see, then that Justice Rowe, as one of the authors of the majority opinion in Ktunaxa, supports the tightening of the scope of religious freedom guarantee.

Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v Wall

Justice Rowe’s decision in Wall could provide some insight into the commitments underlying His Honour’s decision in Ktunaxa. While freedom of religion was not directly at issue in Wall, the case raised issues of the relationship between religious and state authorities, more specifically, whether courts can be called on to review religious bodies’ decision making. In Wall, Randy Wall, a former member of Highwood Congregation of Jehovah’s Witnesses applied for judicial review of the congregation’s decision to disfellow Mr. Wall. TheCourt.ca’s analysis of the lower level decisions, the SCC hearing, and its decision are available here and here.

Justice Rowe, writing for a unanimous Supreme Court, held that there is no freestanding right to procedural fairness; rather, judicial review is only available to review state action of sufficiently public nature. What this decision emphasized is that even though other organizations besides state bodies may exercise authority over their members – indeed, often making decisions with significant personal or economic consequence for their constituents – it does not matter for the purpose of judicial review. Because there is no legal right to belong to a religious organization and ecclesiastical issues are not justiciable, Mr. Wall’s disfellowship was not subject to judicial review for procedural fairness. Wall gives us some insight into Justice Rowe’s perspective on the role of the SCC vis-a-vis other branches of government, and in Canadian society more broadly: while courts may review state action, there are clearly some corners of society where the rule of law does not go.

Law Society of British Columbia v Trinity Western University

The goal of clearly demarcating the court’s role, an idea we’ve seen reflected in Ktunaxa and Wall, seemed to inform Justice Rowe’s concurring opinion in Law Society of British Columbia v Trinity Western University (TWU). The issue in TWU was whether the British Columbia Law Society appropriately balanced religious freedom and equality interests when deciding whether to accredit TWU’s proposed law school.

A 5-judge majority of the SCC held that the Law Society appropriately balanced the competing rights in not accrediting the proposed law school, with Chief Justice McLachlin and Justice Rowe each writing concurring opinions. Justices Côté and Brown penned a dissent, holding that the Law Society, in not accrediting the proposed law school, improperly infringed the school’s and its students’ religious freedom. Justice Rowe’s concurrence is of interest because it is the sole decision holding that the Law Society did not infringe TWU’s freedom of religion. Rather, for Justice Rowe, the claim fell outside the scope of s.2(a).

While the majority, Justice McLachlin, and the dissent all held that s. 2(a) was engaged, and to varying degrees infringed, Justice Rowe held that, “what the claimants seek in this appeal falls outside the scope of freedom of religion as guaranteed by the Charter” (TWU, para. 251). In reining in the scope of s. 2(a) to encompass only the voluntary choice to follow personal beliefs – similar to His Honour’s majority opinion in Ktunaxa – Justice Rowe denied the claimant’s here access to the Charter’s religious freedom guarantee.

Summary and Conclusion

In his relatively short time on the Court, Justice Rowe has voiced an incisive critique of the SCC’s Charter jurisprudence and has articulated a more conservative or principled (depending on one’s perspective) role for the country’s highest court. What emerges from three cases touching on religious freedom – Ktunaxa, Wall, and TWU – is a reminder from Justice Rowe that the scope of Charter rights and correspondingly the SCC’s power is limited. Summarizing this perspective is his plea for loyalty to the Charter’s architecture in TWU:

“This Court has from time to time favoured an approach to Charter rights that avoids delineation and relies instead on s. 1 to ensure that rights are exercised within proper bounds…   Whatever the advantages of giving this type of reading to rights and freedoms, an interpretive approach that blurs the distinction between infringement and justification ignores the architecture of the Charter.” (TWU, paras 186- 189)

After his nomination to the Court, Justice Rowe told Members of Parliament that judging is a great responsibility.[1] But this responsibility is deeper then deciding the cases at bar. At the heart of judging is deciding what matters are appropriately within the court’s wheelhouse and delineating the scope of rights. Justice Rowe’s ‘judicial activism’ posited by Ms. Samborski above has emerged, then, in a paradoxical way: it is the activism of promoting a more limited role for courts and for the Charter. This judicial philosophy, it seems, is informed by a respect for the executive and Parliament and for analytical purity in Charter analysis – respectable aims. And whether or not we agree that respecting these principles should come at the cost of access to courts and Charter rights, it is clear from his sharp opinions on freedom of religion that Justice Rowe approaches the responsibility of judging with a strength of conviction and corresponding analytical clarity.

[1] https://www.cbc.ca/news/politics/justice-rowe-on-why-he-wants-to-be-on-the-supreme-court-1.3820690

Bailey Fox

Bailey Fox is an articling student with the Department of Justice. Her views do not represent the Department of Justice, the Attorney General or the Government of Canada. Bailey graduated from Osgoode Hall Law School in June 2019. She is particularly interested in public and constitutional law, including freedom of religion and administrative procedure and review. Prior to law school, she obtained an Honours B.A from the University of Toronto in Political Science, Jewish Studies, and Canadian Studies and worked at a small non-profit. When not in the library, you can find her at the gym, baking, or exploring Toronto's coffee and cider scene.

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