Canadian Council of Christian Charities Granted Intervener Status in TWU Case: The Supreme Court Changes Course On TWU Interveners

Supreme Court of Canada Ottawa Credit: Barry W. Bussey

In another surprising move, the Supreme Court of Canada (SCC) has “varied” Justice Richard Wagner’s order on the Trinity Western University (TWU) School of Law case.

• On July 27, 2017, Justice Wagner granted intervener status to 9 out of 26 applications.
• Four days later, on July 31, Chief Justice Beverley McLachlin issued a new order allowing all 26 applications (of the 32 groups) intervener status.  (The Attorney General of Ontario is also intervening and is allowed intervener status as a matter of right.)

This means that all the groups will be allowed to file a 10-page brief (a factum) and make a five-minute oral argument at the hearing.  Because some of the groups filed jointly the total number of intervener briefs will be 26 (27 counting the Attorney General of Ontario).

Given that the number of participants at the hearing has tripled, the Court has extended the hearing to two days.

The hearing is now tentatively scheduled for November 30 and December 1, 2017.

Making History

This case, with some 26 intervener applications, has attracted among the highest number of interveners in Canadian judicial history.

The 2004 Reference re: Same-sex Marriage at the SCC had about 26 applications and was also held over two days. It is relatively rare for a Supreme Court of Canada hearing to cover two days; however, this case is proving to be one of the most important cases on religious freedom since the Big M Drug Mart case in the 1980s.

Ontario, Nova Scotia, and British Columbia

The TWU School of Law case has been unpredictable from the start. Despite being inundated with opposition to TWU’s law school, the Federation of Law Societies of Canada approved the school. However, that decision was rejected by the law societies in Ontario, Nova Scotia, and British Columbia.

• In British Columbia there were many twists and turns. The Law Society of BC first rejected an attempt to overthrow the Federation’s decision, but some months later, held a referendum of its membership which called on the Society to reject TWU. It did. However, the B.C. Law Society lost its judicial review in both the BC Supreme Court and the BC Court of Appeal and has now appealed to the Supreme Court of Canada in Ottawa.
• In Nova Scotia, the Nova Scotia Barristers’ Society lost on judicial review of its decision in both the Nova Scotia Supreme Court and the Nova Scotia Court of Appeal but did not appeal further.
• In Ontario, the Law Society of Upper Canada won both in the Ontario Divisional Court and in the Ontario Court of Appeal. TWU has appealed that decision to the Supreme Court of Canada.

Justice at the Supreme Court of Canada, Ottawa Credit: Barry W. Bussey

Serious Concern

Canadian Council of Christian Charities has been intervening in the case from the beginning.  Should TWU lose this case we have serious concerns about the ability of Christian groups to maintain their government licenses to operate in the long term.

General Positions

• TWU opponents have argued that because government (in this case the law societies) accredits TWU it must ensure that even private religious organizations follow public norms on issues such as marriage.
• CCCC has maintained that the promise of Canada includes the ability of religious groups to operate in accordance with traditional norms even though society at large considers that discriminatory. Public approval of a private religious institution, such as a university, does not make that institution public.

Great Importance

This case is, for that reason alone, of great importance to the Christian community. Despite all the permutations that this litigation has taken, it remains a case to watch. Until the day when the SCC releases its final decision after this year’s hearing we will continue to be in suspense.

Stay tuned, for we do not know what tomorrow will bring!