Major Supreme Court case coming up, and your support is needed

The Supreme Court of Canada will hear arguments jointly for two cases involving Trinity Western University’s now infamous law school. This case could be one of the most important cases for secularism and religious freedom in Canada since R v Big M Drug Mart Ltd, and there’s already been a bit of drama about the case.

The background is that the evangelical Christian school Trinity Western University (TWU) is trying to create a JD program – a law degree program. Naturally they want graduates of their program to be eligible for automatic accreditation as lawyers by the various law societies across Canada. So they submitted their application for the program to the Federation of Law Societies of Canada, which coordinates the various provincial law societies, and were approved in December 2013.

But a few provincial law societies objected.

The Nova Scotia Barrister’s Society (NSBS) was the first to refuse automatic accreditation to TWU law school graduates, followed by The Law Society of Upper Canada (LSUC; Ontario’s law society). Then The Law Society of British Columbia (LSBC) held a vote among its members, followed by a binding referendum, who decided to revoke their agreement to automatically accredit TWU graduates.

Naturally, TWU took all three law societies to court.

• First TWU won in Nova Scotia. The Nova Scotia Supreme Court ruled that the NSBS had done some dodgy things in its effort to avoid having to grant accreditation to TWU, not least being giving itself the authority to rule on whether TWU was breaking the law (and breaking the law in BC for that matter). The NSBS appealed, and the Nova Scotia Court of Appeal upheld the decision, so the NSBS gave up.

• Then TWU lost in Ontario. The Ontario Superior Court of Justice agreed that as an expert regulatory body, the LSUC deserves deference in its decisions, so long as they don’t straight-up flout the law. And the LSUC’s reasons for rejecting the accreditation were all soundly argued, well justified in the law, and well within the society’s purview. The decision was upheld by the Ontario Court of Appeal.

• Finally, TWU won in BC. Unfortunately, I know very little about the technical details of this (I intend to read up on it over the weekend). According to my admittedly cursory understanding of the case right now, the Supreme Court of British Columbia decided that the process that LSBC’s process in coming to the decision had been unfair – for example, in not giving TWU a chance to present its case – but I’m not sure if procedural shenanigans were the only issue here (as they were in Nova Scotia). At any rate, the British Columbia Court of Appeal upheld the decision.

If you’re keeping score, that’s 2 wins for TWU and 1 loss. But we can toss the Nova Scotia case aside because – to put it bluntly – the NSBS fucked up, and they know it, and their case isn’t being appealed.

So basically, it boils down to:

• TWU lost in Ontario.
• TWU won in BC.

And now the Supreme Court of Canada is going to hear both cases together: docket #37209 for the Ontario case and docket #37318 for the BC case.

As I mentioned above, there’s already been some drama in the case. A large number of parties wanted to intervene in the case – meaning while they’re not directly involved, they want their opinions on the case considered. Of the 32 parties, Justice Richard Wagner only granted to leave to 9… which is noteworthy in itself; the approval rate for interveners is close to 90%. More noteworthy, though was the fact that Wagner did not grant leave to a single LGBT organization, nor a single secularist or humanist organization, despite granting leave to 3 explicitly Christian groups: the Association for Reformed Political Action (ARPA) Canada, the Christian Legal Fellowship, and the National Coalition of Catholic School Trustees (note that TWU is not Catholic).

Well, in a move that many are calling unprecedented, Chief Justice Beverley McLachlin stepped in and “varied” Wagner’s decision… which, to be clear, doesn’t mean she “overruled” it, just that she changed it, ostensibly with Wagner’s blessing. Now all 32 parties will be allowed to provide a 10 page written argument, and make a 5 minute oral argument.

This may be the most important case for secularism and religious freedom in Canada since 1985’s R v Big M Drug Mart Ltd, the case that shot down the Lord’s Day Act about shopping on Sundays. Yes, it may be even be more important than the landmark case Mouvement laïque québécois v Saguenay (City) from 2015, about government prayer.

While we can’t know what the SCC will base their decision on, the question at hand can be seen as a clash of rights between those who want to discriminate for religious reasons, and those who want to discriminate for non-religious reasons – in this case, for the sake of equality and tolerance for LGBT people. Both TWU and the law societies are private organizations, who both (at least in the case of LSUC) have the right to determine which values they want to promote. Both TWU and the law societies want to force their values on the (potential) law school students, or at least make them acknowledge those values and adapt their own life choices based on them. So who gets precedence? How should the decision be made?

The potential implications of this case are huge, and could have relevance to everything from whether institutions have the right to discriminate, to whether religious freedom trumps or is subordinate to other freedoms, even to things like health care (for example, the rights of hospitals to ban their doctors from performing abortions or medical assistance).

This case may have the most number of interveners of any case in SCC history, and there are a number of groups worth mentioning. But I want to shine the spotlight on two groups:

• The Canadian Secular Alliance. The CSA doesn’t seem to have an up-to-date page about the case, but here is the summary from their intervention in the Nova Scotia case.
• The British Columbia Humanist Association. The BCHA has set up a crowdfunding page that you can use support their intervention

The hearing is scheduled for November 30^th and December 1^st, so please consider making a donation to either the CSA or the BCHA – or any of the other worthy interveners in this case – before then.

Update 2017-08-04:

In yet another unprecedented move, the Court has issued a statement about Justice Richard Wagner’s decision not to allow any LGBT groups to intervene. Wagner has also gone to the press. The gist of the explanation is that there was only a single day scheduled (Wagner does not handle the scheduling, the Chief Justice does), so Wagner was forced to whittle down the long list of wanna-be interveners, and he believed that the interveners he chose would adequately speak for LGBT views on the issue. It was only after the outcry on social media that Wagner and Chief Justice McLachlin discussed the problem, and decided to add a second day, which allowed time for all interveners.

This is certainly a reasonable and plausible explanation for what happened. After all, it’s highly unlikely that Supreme Court Justice Richard Wagner is a secret homophobe who used his power to privilege Christian interveners over LGBT voices. However, for someone who has designs on the Chief Justice position in just a few short months, Wagner’s decision strikes one as remarkably tone deaf.

As an aside, the Court’s statement and Wagner’s public explanation only cover the concern about not including LGBT groups. There has been no statement or apology for initially denying all secularist and humanist interveners.