By Ian Sinke*
The Supreme Court of Canada hears about 80 cases each year, but few receive as much publicity as the recent Trinity Western hearing. The case was heard on November 30 and December 1, 2017, and marked the conclusion of a three-year legal battle by Trinity Western University (TWU) against the law societies of Ontario and British Columbia. The case attracted an almost unprecedented number of intervenors** and resulted in an unusual two-day hearing.
By now, most are likely familiar with the facts of the case and its history, but I will briefly summarize them here. The two appeals being heard together were appeals from the courts of appeal of Ontario and British Columbia. In both provinces, the provincial Law Society had voted to deny recognition of TWU’s proposed law school, even though it had received preliminary approval from the Federation of Law Societies and was authorized to issue law degrees by the B.C. government. In both provinces, TWU appealed this decision all the way to the respective Court of Appeal. In Ontario TWU lost; in BC they won. (TWU also won in Nova Scotia, but the law society there declined to appeal to the SCC.)
Both law societies rejected TWU for the same reason: they have concerns about TWU’s “Community Covenant”, a document which all students must sign in order to attend TWU. The Covenant places many restrictions on students’ behaviour, but the law societies’ concern is with the provision which states that sexual intimacy is to be reserved for a marriage between a man and a woman. Thus, although the case is in reality more nuanced, it has been perceived by most as a battle between equality rights of the LGBT community and religious rights of the Evangelical community.
It was in this context that 26 groups applied for intervenor status at the SCC hearing. Here, an unusual series of events took place. On July 27, Justice Richard Wagner (now Chief Justice) issued an order allowing 9 intervenors, including CLF, leave to intervene. Following this order, there was a lot of media criticism and Twitter activity, focusing on the fact that no LGBT group was granted leave to intervene. Thus, on August 2, Chief Justice McLachlin issued a “variance” of the order allowing all 26 intervenors to participate.
This series of events is interesting, and relevant to CLF, for several reasons. First, the source of the legal authority for Chief Justice McLachlin’s order is unclear. Generally speaking, decisions made on motions, including motions for leave to intervene, are final. The Court does not give reasons for why they allow intervenors to participate, yet upon issuing the variance, the SCC issued a “press release” which read very much like reasons for their decision. Thus, the legal framework surrounding such a reversal is remains uncertain.
Second, as CLF regularly appears before courts as a public interest intervener, it is worth considering what the justices may be signalling as to their approach to interventions going forward. Under Chief Justice McLachlin, the Court has had a fairly liberal approach to intervenors, allowing most qualified intervenors to participate, but granting them less and less time and space. They are now reduced to five minutes of oral argument and a ten-page factum. Letting in a large number of intervenors but giving them the time to make only a tiny legal argument seems, in some sense, counter-productive. It risks turning the role of intervenors from that of sharing a unique legal perspective to a “me-too” hand-raising exercise.
Intervenors like CLF play an important role in the Canadian legal system. In this case, as I will note later, some of the best oral advocacy at the hearing came from lawyers acting for intervenors. Whether anything about the SCC’s approach to intervenors will change under incoming Chief Justice Wagner is unknown, but we can hope that the court continues to recognize the important insight that intervenors bring to their hearings.
As Supreme Court hearings go, the TWU hearing was a particularly eventful one, and not just because of the large number of intervenors. The courtroom was packed with lawyers, 69 in total, of whom 26—more than a third—were CLF members.
The first day was devoted to the parties to the case, and the second to the intervenors. Because two appeals were being heard (from Ontario and BC), TWU’s lawyers had the opportunity to speak first (for the Ontario appeal), followed by the lawyers for the Law Societies, after which TWU had another hour of argument (for the B.C. appeal). In general, the lawyers for both TWU and the Law Societies were peppered with questions from the bench. The questions revealed that the judges are truly grappling with the difficult issues at play in this case.
Although none of the lawyers for the parties can be faulted for the oral advocacy, in my opinion, some of the best oral advocacy came from the intervenors on the second day. Some CLF members and giants of the Supreme Court such as Eugene Meehan and Gerald Chipeur, Q.C., gave compelling presentations on small but important issues of relevance to the case. Given the number of intervenors, I do not have the space to mention each one, nor to discuss their arguments in any detail, but instead I will briefly describe Derek Ross’s submissions on behalf of CLF.
Derek’s submissions were a textbook example of why no amount of preparation can ever truly prepare you for a Supreme Court hearing. Although it is somewhat unusual for intervenors to receive a large number of questions, Derek barely made it through his opening remarks before being stopped by the bench.
Derek began with a bold statement of the case: “These cases ask whether law students can associate around shared religious beliefs, in pursuit of education, vocational, and professional goals. As an association which exists precisely for that purpose, Christian Legal Fellowship is directly affected by the answer to that question, and submits that the answer must be yes.” This statement caught the attention of the justices. Questions from Justices Abella and Brown led into a discussion about whether studying law is, or ought to be, a purely secular pursuit.
Derek pointed out that TWU’s mandate is to integrate faith and education. This line of argument led to an interesting question from Justice Malcolm Rowe: “Would it matter if they were educating actuaries? The actuarial science is basically applied mathematics.” Derek explained the perspective of TWU, and of CLF members: that “whatever our vocation, it is a response to a spiritual calling … a spiritual calling isn’t just limited to ministry, but to any calling or walk of life.” Religious institutions are not limited to teaching theology, but to teaching all subjects from a Christian perspective—precisely what TWU’s statute mandates it to do.
Finally, Justice Brown asked a question about whether the community covenant was an integral part of the religious practice of TWU, and asked if it was consistent with CLF’s submissions. Derek agreed that this was a distinct claim: freedom of association rather than freedom of religion. Derek then quoted Justice Dickson’s articulation of freedom of association (in the Alberta Reference) as “at its core, protecting the right of individuals to determine and control the rules, mores, and principles which govern the principles in which they live.”
This case raises a number of important legal issues, and I will not attempt to comment on them all here. The facta of the parties and intervenors together number in the hundreds of pages, if you are looking for some light bedtime reading! Instead, I will comment on a few of the issues and how they are relevant to CLF’s intervention.
The first question is one of administrative law. For the uninitiated, this branch of law is concerned with state actors and how they make decisions. In this case, the state actors are the law societies, who receive their power from their respective provincial Law Society Acts. One question which became prominent at the hearing was, what powers do the Acts confer on the law societies? In other words, what is the law societies’ mandate? Do they receive a broad-ranging power to regulate the legal profession in “the public interest”, whatever that might mean, or is their power more limited? This was the focus of CLF’s written arguments, although at the hearing, there was not enough time to discuss this. Lawyers for TWU and the law societies spent a lot of time arguing for an interpretation of the Law Society Acts which was favourable to their position.
Another administrative question is a more fundamental one: how exactly should we be making administrative decisions? The current legal framework is set out in a case called Doré, a Quebec case which coincidentally also involved a law society. In short, Doré says that administrative actors’ decisions must be “reasonable”, and must involve a balancing of the “Charter values” that are at stake. In the last few years, this framework has proved difficult to apply, and the SCC may be beginning to notice its shortcomings. Thus, it is possible that they will rework or replace it completely.
Questions of administrative law show up regularly in interventions which CLF participates in. For instance, the recent case of Wall v Highwood Congregation was essentially an administrative question with religious freedom overtones. The ET v Hamilton-Wentworth case, which the Ontario Court of Appeal recently released its decision on, was also an administrative decision which involved an application of the Doré analysis. In that decision, Justice Lauwers (Justice Miller concurring) was somewhat critical of the Doré/Charter values approach, stating that decisions involving Charter values are often subjective and lack transparency. It is easy to see how such vague Charter values as “inclusivity” can be pitted against Charter rights such as religious freedom and freedom of association, and how this framework is important to many of CLF’s interventions.
Moving on past the administrative questions, there are more fundamental questions at stake. If we are indeed concerned with balancing rights, the basic question which we will eventually run up against is “what do we do when rights conflict with one another?” In this case, it has been argued that there is a conflict at some level between TWU’s freedom of religion and association, and LGBT students’ equality rights. When such conflicts arise, courts may take one of two possible approaches: either compromise the scope of each right, so that they no longer overlap, or cede the overlapping territory to one or the other.
One worrisome sign that the SCC may be taking the first approach is the recent decision in Ktunaxa. In that decision, the Court essentially limited the scope of freedom of religion, saying that neither the Ktunaxa Nation’s freedom to hold their beliefs, nor their freedom to manifest those beliefs, was infringed by the BC government’s decision to approve a ski resort on a sacred site. Similar arguments were made at the TWU hearing; does the freedom of religion extend to the ability to compel certain behaviour from others within your religious association? To us the answer seems clear, and the Court did not seem to indicate that they would find no infringement of the freedom of religion, but nonetheless the direction the Court seems to be tracking is somewhat worrisome for those who defend religious freedom.
The second approach—ceding territory to one right or the other—is the approach which the Human Rights Codes of Ontario and BC take. In certain circumstances, freedom of association wins out. This can be seen in section 18 of the Ontario Human Rights Code, for instance: “The rights under Part I to equal treatment with respect to services and facilities […] are not infringed where membership or participation in a religious […] institution or organization that is primarily engaged in serving the interests of persons identified by a prohibited ground of discrimination is restricted to persons who are similarly identified.” TWU also made this argument at the hearing.
One final legal issue which played an important role is the idea of TWU’s status as a private university. The Charter does not apply to private actors such as TWU. However, one argument that can be made is that TWU is applying for a public benefit, namely, access to the legal profession, and as such, the Charter (or Charter values) should apply to, or inform, TWU’s actions. As CLF member Barry Bussey pointed out in his intervention for the Canadian Council of Christian Charities, this is a slippery slope: if access to the legal profession is a public benefit, charitable tax-free status certainly is; are all churches and charities now to have their beliefs and practice scrutinized under a Charter lens?
On the other side of the coin is whether TWU is able to claim Charter rights and freedoms. The Charter grants its rights to “everyone”, which has traditionally been interpreted as referring to persons. Although previous SCC cases have given indications that organizations and associations may also be able to claim certain Charter protections, the Court has never given a definitive explanation of how the freedom of religion applies to organizations.
Thus, Trinity Western represents an opportunity for the Supreme Court of Canada to clarify the scope of religious freedom, and how it applies to organizations, and to refine or completely rework their approach to administrative law. The judgment (expected to be released within the next six months, so that outgoing Chief Justice McLachlin will be able to participate in the judgment) will certainly be a significant one, and will likely find its way into the next edition of constitutional and administrative law casebooks read by all Canadian law students.
*Ian Sinke is a student at the University of Toronto Faculty of Law, where he leads Christian Legal Fellowship’s student chapter. He recently completed a constitutional litigation practicum with Christian Legal Fellowship as part of U of T’s Constitutional Advocacy course.
**Only the Marriage Reference attracted more (28).
- Watch CLF's Derek Ross give oral submissions to the Supreme Court (19:05).
- Read CLF's prepared oral submissions.
- Read more in CLF's blog post here and CLF's intervener factum.
- Read how CLF's arguments were reflected in the BCCA's Trinity Western decision.
- Read The Crux's article, "Lawyers call Canadian court case turning point for religious freedom", quoting CLF's Derek Ross