SCC Interveners Order Raises Questions Ahead of Trinity Western Hearing

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By this point, it is a virtual certainty that the outcome of the joint-appeal for Trinity Western University et al v Law Society of Upper Canada and Law Society of British Columbia v Trinity Western University et al will be a landmark ruling by the Supreme Court of Canada. Few Charter of Rights and Freedoms claims in recent memory have attracted the level of public observation and scrutiny that the Trinity Western case has. Yet with less than two months to go until the case’s two-day hearing – a rarity at the Supreme Court – questions are already being raised about the Court’s procedural management of the case. Specifically, much attention has been directed toward how the Court has decided which organizations will be granted leave to intervene in the joint-appeal.

Case Background 

The facts of the case are well-known and need not be repeated here in great detail. In June 2012, Trinity Western University submitted a proposal to the British Columbia Minister of Advanced Education seeking accreditation to open a law school at its Langley campus, which would have been be the first private Juris Doctor program in Canada. By December, 2013 the university had received all of the requisite approvals it needed from the Minister and the Federation of Law Societies of Canada (FLSC) and was on track to admit its first class for the fall of 2015.

Over the course of the next several months, however, many provincial and territorial law societies began to individually review the FLSC’s decision. The Law Society of Upper Canada (i.e. Ontario) and the Nova Scotia Barristers’ Society both voted not to accredit graduates of the proposed law school, while the Law Society of British Columbia reversed its initial decision to approve the law school following a referendum by members of that province’s bar. The grounds for each of the law societies’ decisions was Trinity Western’s long-standing community covenant, a university-wide code of conduct rooted in traditional Christian teachings and practices which, among other things, calls on students to abstain from sexual relationships that fall outside of the Biblical model of marriage between one man and one woman.

On this basis, the law societies argued that Trinity Western discriminated against LGBTQ applicants, and that it would thus be contrary to the public interest to license graduates of the university’s law program. In response, Trinity Western promptly announced that it would be pursuing legal action against all three law societies, arguing that each of their respective decisions infringed the university’s Charter right to freedom of religion and went beyond the law societies’ statutory authority. Over the course the next two years, Trinity Western successfully challenged two of the decisions at both levels of court in Nova Scotia and British Columbia, while suffering back-to-back defeats in Ontario. In February, the Supreme Court granted leave to appeal in the Ontario and British Columbia decisions, with the Nova Scotia Barristers’ Society opting not to appeal.

Justice Wagner’s Interveners’ Order and Chief Justice McLachlin’s Variation

On July 27, Justice Richard Wagner delivered the Court’s original order concerning interveners in Trinity Western joint-appeal, which only granted leave to nine of the thirty groups that had applied to intervene. In the days following the order, many lawyers expressed their surprise at the relatively small number of groups that had been granted leave to intervene. Notably, although a majority of the admitted interveners were expected to argue in favour of the law societies’ decisions, the order did not grant leave to any of the explicitly LGBTQ-identifying groups, a fact which was vehemently highlighted by many on social media.

Despite the growing online backlash, none of the groups that had been denied leave to intervene formally requested that Justice Wagner’s decision be reviewed. Then, on July 31, Chief Justice Beverly McLachlin suddenly ordered that a second day of hearings for the joint-appeal would take place on December 1. In doing so, the Chief Justice further varied Justice Wagner’s original order concerning interveners, now granting leave to all of the groups that had applied to intervene.

The Court’s Press Release

On August 2, the Supreme Court made the unusual – and possibly unprecedented – decision to explain the Chief Justice’s variation of Justice Wagner’s original order in the form of a press release. The Court began by reiterating that it does not provide reasons for its decisions concerning applications for leave to intervene, since doing so would “disproportionately burden the Court’s workload.” Nevertheless, the Court noted that in light of the circumstances “the concerns raised by some LGBTQ+ groups calls for a response.”

The press release went on to emphasize that, at the time of Justice Wagner’s original order, the hearing for the case was scheduled to only take place on November 30. In light of the additional time constraints that arose from the matter being on joint-appeal, the Court explained that “[t]hese scheduling considerations informed Justice Wagner’s decision not to grant all applicants the right to intervene.” The Court further stressed that its desire remained to “hear a wide range of views” and to ensure that the applicants and respondents “fully canvas the issues raised by the appeal.” When a second day of hearings was added, this created the potential to hear from more interveners.

The Court grounded its legal justification for the variation of Justice Wagner’s order in the Chief Justice’s administrative authorities, stating that “scheduling of hearings is the Chief Justice’s responsibility.” The press release concluded by emphasizing that Chief Justice McLachlin’s variation was made with Justice Wagner’s full consent and, furthermore, did not have the legal effect of overturning his original order, which technically remains in place.

Justice Wagner’s Globe Interview

At least initially, the Court’s press release appeared to settle the interveners question, ostensibly grounding the Chief Justice’s varied order mostly in technical scheduling considerations. Yet later that day, Justice Wagner offered further insight in a Globe and Mail interview with Sean Fine into the Court’s motivations in varying the order. The Globe article describes Justice Wagner as “a leading candidate” for Chief Justice who had “been under fire” since he had “rejected” the applications of the LGBTQ groups that had sought leave to intervene.

For his part, Justice Wagner used the interview to explain that he initially “believed the views of LGBTQ advocates were well represented” by the original slate of interveners; nevertheless, he acknowledged that the decision to vary the interveners order was made in part due to the negative feedback that the Court had received on social media. As the controversy continued to gain traction, he sought out the Chief Justice. “She was looking for me and I was looking for her,” he explained. “We talked over the phone and discussed the matter, and we decided that it would be best to add another day, and have all the applications granted.”

The Response from the Legal Community

It is uncommon for intervener decisions, even at the Supreme Court, to receive the level of public and media attention that it has in the Trinity Western case. But for the Supreme Court to justify one of its orders in a press release and interview with a major national newspaper is unheard of. Indeed, the entire chain of events has been so unorthodox that it led University of Alberta law professor and legal blogger Peter Sankoff to describe the situation as “the weirdest [Supreme Court of Canada] moment ever.”

Some legal scholars and observers, however, have begun to raise much graver concerns not just about how the Court arrived at this decision but also whether Chief Justice McLachlin even had the legal authority to vary Justice Wagner’s original order. As Patrick F. Baud and Maxime St-Hilaire note in a CanLII Connects article, “[n]either the Supreme Court Act nor the Rules of the Supreme Court expressly allow a judge to vary their own or another judge’s order on a motion for intervention.” Specifically, section 75 of the Rules of the Supreme Court provides that “there shall be no reconsideration or re-hearing of a motion.”[1] On its face, as Baud and St-Hilaire explain, this rule seemingly “prevents varying or revoking of an order made by a judge on a motion.”

Nevertheless, Baud and St-Hilaire posit that since other sections of the Rules of the Supreme Court allow the Court to set the terms and conditions of granted motions for leave to intervene, “it is conceivable that they necessarily imply the power to alter the terms and conditions imposed granted in light of changing circumstances.”[2] Yet even this appears to be a fairly generous interpretation of the rules governing interveners orders, with the authors concluding that the Chief Justice’s varied order was a “seemingly unprecedented use of … an unclearly established power.”

Furthermore, as University of Calgary law professor Alice Woolley emphasizes in an article in Slaw, the Chief Justice did not even attempt to rely on any of the theoretical powers described by Baud and St-Hilaire. Instead, the Court’s press release grounded the varied order in the Chief Justice’s authority over scheduling. This, Woolley insists, “is asking us to accept a characterization of the Chief Justice’s order that seems on its face implausible.” Woolley concludes that the Court’s justification for the variation “does not fit plausibly within the scope of what the law’s interpretive community would understand a scheduling power to include” and further acts as a “troubling [precedent] for the functioning of the law and our legal system.”

A Troubling Precedent Ahead of a Divisive Hearing

The difficult issues raised by the Chief Justice’s varied order concerning interveners have little to do with its content. Indeed, in important constitutional cases such as this, there is much to be said for granting leave to as many interveners as possible. Yet that the Chief Justice would overturn one of her colleague’s orders in such a controversial case in response to public opinion is, to put it mildly, disconcerting. Moreover, the ambiguous manner in which the Supreme Court chose to communicate and justify the Chief Justice’s varied order is equally cause for concern.

On CanLII Connects, Omar Ha-Redeye describes Justice Wagner’s interview with the Globe as the first time that the Supreme Court has directly responded to public pressure via social media concerning an order of this type. In a case as divisive as Trinity Western, however, the Court must ensure that it ultimately make its decision on the basis of the law – not public pressure. Still, it would be an exaggeration to say that the interveners episode has significantly called the Court’s impartiality into question ahead of the joint-appeal. For the sake of maintaining public confidence in the judiciary, let us hope that there is no further need for the Court’s procedural handling of the Trinity Western case to come under any serious scrutiny.

[1] Rules of the Supreme Court of Canada, SOR/2002-156, s 75 [Supreme Court Rules].

[2] See Supreme Court Rules, ss 52(a), 55, 59(1)(b).

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