A Friend of the Court

Over nearly two decades, CLF has been granted intervener standing in almost 40 cases involving Charter issues—including 12 at the Supreme Court of Canada—seeking to advance justice, advocate for the vulnerable, and promote freedom of religion, conscience, and expression.

CLF has: 

  • a well-established history of active involvement in matters of public policy and law, especially matters involving issues surrounding the Charter.

  • appeared before Parliamentary committees and made representations to provincial governments on issues of conscience, religious freedom, inviolability of life, and human rights issues.

  • Special Consultative Status as an NGO with the Economic and Social Council of the United Nations, and has been involved in numerous international matters and court submissions.

  • been an intervener before the courts in matters involving freedom of religion and conscience, including the interface of s. 2(a)-(b) of the Charter and s. 15 of the Charter, and related provisions in human rights codes, as well as issues affecting the inviolability of life.

The Supreme Court of Canada and other courts have granted the CLF intervener status, either individually or with others, in the following cases among others (listed chronologically from the most recent.)

2021/2022

bILL 21 Appeal

Christian Legal Fellowship (L’Alliance des chrétiens en droit) has been granted leave to intervene by the Court of Appeal of Quebec in the litigation challenging Quebec’s Bill 21. CLF has now filed our factum with the Quebec Court of Appeal, which can be read here..

By way of background, Bill 21 seeks to promote the “laïcité” (or secularism) of the state by prohibiting religious symbols for public sector workers – including lawyers who work for, or are under contract with, the provincial government. CLF has expressed concern that it effectively bans openly-religious lawyers from public service. 

In enacting Bill 21, the Quebec government invoked the Charter’s notwithstanding clause (s. 33), which allows a law to operate “notwithstanding” the fact that it infringes certain Charter rights, including religious freedom (s. 2) and the right to equality without discrimination on the basis of religion (s. 15). 

Last year, Justice Blanchard of the Quebec Superior Court concluded that the notwithstanding clause shielded much of Bill 21 from Charter scrutiny, and largely upheld the law on that basis (with some exceptions). However, Justice Blanchard expressed deep reservations about the legislation. He noted that forcing individuals to choose between their religious beliefs and their work was a “cruel consequence which dehumanizes the individuals concerned”, and that prohibiting them from wearing a religious symbol amounts to “denying them one of the very foundations of their being” (paras 69 and 1098, unofficial translation).

Justice Blanchard’s decision has been appealed to the Quebec Court of Appeal, where CLF has been granted leave to intervene. Specifically, CLF has submitted arguments that the notwithstanding clause does not automatically protect every limitation on religious freedom sought by the state, because it is limited by other provisions of the Charter, such as section 31.

Comme indiqué dans un communiqué de presse préalable, l’Alliance des chrétiens en droit (Christian Legal Fellowship) a été autorisée à intervenir dans le litige contestant le projet de loi 21 au Québec. L’ACD a maintenant déposé un mémoire auprès de la Cour d'appel du Québec, lequel nous pourrions consulter ci-dessous.

En guise de contexte, le projet de loi 21 vise à promouvoir la laïcité (ou le sécularisme) de l’État en interdisant les symboles religieux pour les travailleurs du secteur public – y compris les avocats et avocates qui sont employé(e)s du gouvernement provincial ou qui travaillent à forfait pour celui-ci. L’ACD a fait part de sa préoccupation que cette règle exclut effectivement les avocats et avocates ouvertement-religieux(ses) de la fonction publique.

En adoptant le projet de loi 21, le gouvernement du Québec a invoqué la disposition de dérogation (ou clause nonobstant) de la Charte (art 33), ce qui permet à une loi de s’appliquer « nonobstant » le fait qu’elle porte atteinte à certains droits garantis sous la Charte, dont la liberté de religion (art 2) et le droit à l’égalité sans discrimination fondée sur la religion (art 15).

L’an dernier, le juge Blanchard de la Cour supérieure du Québec a conclu que la clause nonobstant protégeait une grande partie du projet de loi 21 d’un examen fondé sur la Charte et a donc largement maintenu la loi sur cette base (à quelques exceptions près). Cependant, le juge Blanchard a exprimé de profondes réserves au sujet de la législation. Il a noté qu’obliger les individus à choisir entre leurs convictions religieuses et leur travail était une « conséquence cruelle qui déshumanise les personnes visées », et que leur interdire de porter un signe religieux revient à leur nier « l’un de fondement même de leur être » (paras 69 et 1098).

Les requérants ont interjeté appel de la décision du juge Blanchard devant la Cour d’appel du Québec, auprès de laquelle l’ACD a été autorisée à intervenir. Notamment, l’ACD a présenté des arguments que la clause nonobstant ne protège pas automatiquement toute atteinte à la liberté de religion tentée par l’État, car elle-même est limitée par d’autres dispositions de la Charte, comme l’article 31.

2020

Aga

Case: Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral, et al. v. Teshome Aga, et al. (SCC)

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2019

Truchon

Case: Truchon c. Procureur général du Canada, 2019 QCCS 3792

Christian Legal Fellowship (CLF), represented by Robert Reynolds, intervened in the case, and argued that the “reasonably foreseeable” requirement was both a valid and important safeguard in fulfilling the new MAID legislation’s objectives. CLF pointed to evidence in the record, including experts who expressed concerns that an open-ended regime would undermine suicide-prevention efforts. CLF quoted legal expert Prof. Trudo Lemmens: “The more we move away from the end-of-life context, the harder it is also to argue that the practice is not a substitute for suicide.” [Trudo Lemmens, “Charter Scrutiny of Canada's Medical Assistance in Dying Law and the Shifting Landscape of Belgian and Dutch Euthanasia Practice” (2018), 85 S.C.L.R. (2nd Series) 459-544 at 54]. CLF also made detailed submissions about why the provisions were rationally connected and proportionate to the objectives of the law, and therefore constitutional.

The Quebec Superior Court declared the “reasonably foreseeable” requirement unconstitutional (it made similar findings with respect to Quebec’s provincial law regulating MAID).

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2018

Wall

Case: Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 2

Summary: CLF was granted leave to intervene before the Supreme Court of Canada (SCC) in this appeal, which concerned whether internal decisions of private religious bodies are justiciable. CLF's intervention focused on how Canada's international obligations ought to inform the scope and nature of freedom of religion, freedom of association, and church autonomy. Drawing from international jurisprudence, CLF also spoke to the implications for all religious communities if courts are entitled to intervene with the internal functions of private, autonomous, voluntary associations. The Supreme Court of Canada in a unanimous decision affirmed that church membership decisions cannot be judicially reviewed by civil courts except in narrow circumstances.  

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Freedom of conscience in health care

Case: The Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, 2018 ONSC 57

Summary: Christian Legal Fellowship was granted leave to intervene jointly with the Evangelical Fellowship of Canada and the Assembly of Catholic Bishops of Ontario. This coalition of interveners advocated for religious equality and conscience rights for health care professionals. The College of Physicians and Surgeons of Ontario adopted (1) a Human Rights policy mandating effective referrals even if it conflicts with conscience or religious beliefs; and (2) a Medical Assistance in Dying policy that specifically requires effective referrals for euthanasia. CLF supported CMDS in its position that, among other things, these policies violate freedom of conscience and religion and equality, are not in the public interest, limit patient choice and undermine the principle of state neutrality. The Court acknowledged that the CPSO policy infringes physicians’ freedom of religion by requiring them to take “positive action” to facilitate procedures such as euthanasia contrary to their beliefs. However, the three-judge panel concluded that such an infringement is justifiable to the extent that it advances the CPSO’s goal of “ensuring access to health care services in Ontario, and, in particular, to the goal of ensuring equitable access to such medical services” (para. 162). The Ontario Court of Appeal upheld the decision.

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2017

Ktunaxa

Case: Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations)

Summary: CLF was granted leave to intervene, jointly with the Evangelical Fellowship of Canada. The litigation arose from a proposed ski resort on land that is sacred to the Ktunaxa people. The Ktunaxa Nation opposed the development on the basis that it would desecrate the sacred site and interfere with a variety of their spiritual practices. The British Columbia Minister of Forests, Lands and Natural Resources approved the development but did not specifically address how the decision would impact the Ktunaxa Nation's section 2(a) Charter right to freedom of religion. Ktunaxa Nation's claim was unsuccessful at the courts below as it was found to fall outside of the scope of the protection of religious freedom. The BC Court of Appeal suggested that the Charter does not protect religious exercise to the extent that it requires others to “act or refrain from acting and behave in a manner consistent with a belief that they do not share.” The Supreme Court upheld the Minister’s ultimate decision; however, the Court was divided 7-2 on some of their underlying reasons. The Supreme Court of Canada reaffirmed in its decision that government actors have a duty to specifically consider religious freedom concerns when raised by claimants.

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Trinity Western University

Case: Trinity Western University v. The Law Society of Upper Canada; Trinity Western University v. The Law Society of British Columbia (heard by the Supreme Court of Canada, Nov 30-Dec 1, 2017)

Case: Trinity Western University v. The Law Society of Upper Canada, 2016 ONCA 518

Summary: Judicial review of the Law Society of Upper Canada's (LSUC) denial of accreditation of TWU's proposed law school. The Ontario Divisional Court dismissed Trinity Western University’s (TWU) application for judicial review, deciding that the Law Society of Upper Canada’s (LSUC) decision to not accredit TWU’s proposed law school was reasonable. The Ontario Court of Appeal upheld the decision. TWU appealed to the Supreme Court of Canada.

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Case: Trinity Western University v. The Law Society of British Columbia, 2015 BCSC 2326

Summary:  Judicial review of the Law Society of British Columbia's (LSBC) decision to reject TWU's proposed law school. The BC Supreme Court and the BC Court of Appeal both decided in TWU's favour. The LSBC appealed to the Supreme Court of Canada.

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Case: Trinity Western University v. Nova Scotia Barristers’ Society, 2015 NSSC 25

Summary: The Supreme Court of Nova Scotia held in 2015 that Christian law students have a right to attend a private religious law school with others who share their faith, and to practice law in Nova Scotia without facing additional barriers based on their beliefs. CLF’s submissions promoted the recognition of freedom of religion and equality rights of law students and lawyers in Canada. The Nova Scotia Barristers' Society's appeal was dismissed by the Nova Scotia Court of Appeal. 

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E.T.

Case: E.T. v Hamilton-Wentworth District School Board, 2017 ONCA 893

Summary: CLF was granted leave to intervene as a friend of the court in this appeal, which concerned a father, E.T., who requested that the respondent school board inform him when certain subjects are scheduled to be taught in his children’s classes. The school board refused, stating that the effect of doing so would heighten the risk of discrimination for other students by sending a message that there is something wrong with what is being taught. The lower court agreed, finding that the Board’s decision struck a reasonable balance between E.T.’s rights and the Board’s “competing legislative mandate” as well as "Charter values favouring inclusivity, equality and multiculturalism.” Christian Legal Fellowship intervened in the case and made both written and oral submissions to the Court of Appeal. CLF explained that a “values analysis” inappropriately requires courts to engage in moral prioritizing rather than rights adjudication and undermines a robust legal analysis that rests on evidentiary requirements. The appeal was dismissed for evidentiary reasons, but a majority of the Court left open the possibility for a future legal challenge and emphasized the importance of parental rights in education.

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2016

Carter

Case: Carter v. Canada (AG), 2016 SCC 4

Request for extension of suspension of invalidation issued in Carter 2015 

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2015

LOYOLA

Case: Loyola High School and John Zucchi v. Attorney General of Québec, 2015 SCC 12

Topic: Freedom of religion and association (Whether the state can secuarlize the teaching of religion and morality within a private Catholic school)

Summary: Such was the central question framed by the Superior Court in this case after Loyola, a private Catholic school, was denied permission by the Quebec government to teach a mandatory Ethics and Religious Culture (ERC) course from a Catholic perspective. The provincial curriculum required Loyola, in the words of the Superior Court, to teach “a pedagogy contrary to the teachings of the Catholic Church” but the Quebec Court of Appeal ruled in the government’s favour. CLF intervened before the Supreme Court of Canada and highlighted how the purpose of the ERC program was to shape children’s thinking and character. CLF argued that a religious school must be given the freedom to teach such a curriculum from its own faith perspective, and that any interference with that right contravenes the Canadian Charter, the Quebec Charter and international law. 

While the SCC was divided (4-3) on some issues, it was unanimous in its affirmation that the state cannot oblige a private religious school to teach morals and religion from a perspective that contradicts its own doctrine. The court’s decision reflected CLF’s submissions on the Quebec Charter and international covenants (paras. 64-65, 96-97), affirming parents have a legally protected right to pass on their beliefs to their children. The court also affirmed that an “essential ingredient of the vitality of a religious community is the ability of its members to pass on their beliefs to their children”, and measures which disrupt that vitality “represent a profound interference with religious freedom” (paras. 64, 67).

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Case: D'Amico et Saba c Procureure général du Québec

Topic: Physician-assisted suicide (whether paramountcy renders Quebec's An Act respecting end-of-life care (Bill 52) inoperative)

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Case: Carter v. Canada (AG), 2015 SCC 5

Topic: The constitutionality of section 241(b) of the Criminal Code of Canada, R.S.C. 1985, c. C-46, the criminal prohibition against physician-assisted dying

Summary: On February 6, 2015 the Supreme Court of Canada unanimously struck down as unconstitutional Canada’s Criminal Code provisions banning physician-assisted suicide, but gave Parliament one year to create a new regime with a stringently limited, carefully monitored system of exceptions to the ban. Christian Legal Fellowship was an intervener in the case. 

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2013

Case: Canada (Attorney General) v Bedford, 2012 SCC 72, [2013] SCR 1101

Topic: The constitutionality of portions of the Criminal Code designed to protect victims of prostitution

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Case: Saskatchewan (Human Rights Commission) v Whatcott, 2013 SCC 11

Topic: Hate Speech (Freedom of expression and the constitutionality of the enforcement of statutory hate-speech prohibitions) 

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2012

Case: Ginette Leblanc v Le Procureur Général du Canada et al, no. 400-17-002642-110

Topic: The constitutionality of section 241(b) of the Criminal Code of Canada, RSC 1985, c C-46, the criminal prohibition against physician-assisted dying

 

Case: S.L., et al v Commission Scolaire Des Chenes, et al, [2012] 1 SCR 235

Topic: Freedom of Religion (Whether the right to freedom of religion and conscience includes the freedom of parents to bring up their children in the religion of their choice without interference of the State)

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2011

Case: A Reference by the Lieutenant Governor in Council to the Supreme Court of British Columbia under The Constitutional Questions Act, RSBC 1986

Topic: Polygamy (C 68 relating to the criminal prohibition against polygamy under The Criminal Code of Canada, RSC 1985, c C-46)

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2009

Case: Alberta v Hutterian Brethren of Wilson Colony, [2009] 2 SCR 567

Topic: Freedom of Religion (The inviolability of freedom of religion and freedom of association to individuals and religious communities) 

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