A controversy over who would be allowed to intervene in a contentious legal fight over accrediting a Christian law school has left some lawyers calling for the Supreme Court of Canada to provide reasons in its decisions on intervener status.
Supreme Court Justice Richard Wagner released an order on July 27 granting leave only to less than half of the 26 groups that had applied for intervener status in the appeal of two cases that concerned whether Trinity Western University should be allowed to start a Christian law school.
Wagner did not grant intervener status to a single one of the LGBTQ groups that had applied for intervener status, sparking shock and outrage among lawyers and gay rights advocates. He also gave permission to some religious groups to intervene but not others.
What made the order all the more bewildering at the time was the lack of explanation, as the Supreme Court does not provide reasons on its decisions on motions for intervention, lawyers say.
“The problem with decisions about leave to intervene is that they don’t include reasons. So you don’t actually know what the decision was actually based on,” says Annamaria Enenajor, a criminal defence lawyer with Ruby & Shiller Barristers, who also practises constitutional law and used to clerk at the Supreme Court of Canada for Wagner as well as Justice Marie Deschamps.
Trinity Western University is seeking accreditation of law schools in provinces across the country, but it has faced opposition over a provision in the university’s covenant that bans students from “sexual intimacy that violates the sacredness of marriage between a man and a woman.”
The hearing will combine two cases that will weigh equality rights and religious freedoms. In B.C., an appeal court overturned the university’s request to overturn a decision by the province’s law society to deny it accreditation.
In Ontario, the Law Society of Upper Canada refused to accredit the school and the Court of Appeal sided with the regulator.
Wagner’s order provoked shock by lawyers who felt the process would be missing the voice of the LGBT community.
“It was appalling. It showed gross insensitivity and a lack of any kind of thought to the importance of the LGBT community and Canadian society today,” says Doug Elliott, a partner at Cambridge LLP, who has argued high-profile equality rights cases at the Supreme Court.
“The idea that the fate of LGBT law students is going to be decided on their behalf by a bunch of straight people without even hearing the LGBT community is paternalistic at best,” he says.
Just five days after Wagner’s order, Chief Justice Beverley McLachlin issued a second order, which “varied” the first so that every party that applied was granted intervener status.
Human rights lawyers and LGBT groups applauded the move, which left legal scholars wondering whether such a move by a chief justice was unprecedented.
Eugene Meehan, a former executive legal officer at the Supreme Court and a lawyer at Supreme Advocacy LLP, says he has never seen such an order by a chief justice.
He says that while Wagner was taking a stricter approach to test for intervention than other colleagues, it was appropriate as each judge has discretion in deciding who should be allowed to intervene.
However, this is the most anticipated Supreme Court appeal of the year, and it will be McLachlin’s last big case before she retires, he says.
“Given the high-profile nature of the case, the chief justice is likely erring on the side of careful caution by allowing all the interveners in and ensuring all voices are heard, even if some of those voices sing in harmony and other voices are discordant,” Meehan says.
“This appeal could be more contrapuntal Bach than symphonic Beethoven.”
Following the chief justice’s order, the Supreme Court issued a press release saying it does not provide reasons on such orders, as doing so would “disproportionately burden the court’s workload,” but that it felt a response was needed in this instance because of concerns raised by LGBTQ groups.
The court said it was originally scheduled to hear the appeals over the course of just one day, which informed Wagner’s decision not to grant all applicants the right to intervene.
The statement said that as scheduling is the chief justice’s responsibility, McLachlin made the decision to add a second day to the hearing and to grant all applicants intervener status after discussing the matter with Wagner.
“With Justice Wagner’s agreement and support, the Chief Justice issued a new order to add a second hearing day and give all the remaining applicants the right to intervene,” the statement said. “This was a variation of Justice Wagner’s order and did not overrule his order, which remains in place.”