Chief Justice of the Supreme Court of Canada Beverley McLachlin varied the order of one of her colleagues on the bench — a highly unusual move that cleared the way for LGBTQ groups to intervene in a high-profile case pitting the Charter right of religious freedom against the right to be free from discrimination.

On July 27, Supreme Court of Canada Justice Richard Wagner dismissed applications by LGBTQ groups to intervene in two major cases centred on Trinity Western University, a B.C.-based private Christian institution.

“Many of us were wondering, is he signaling some kind of approach he is taking to this case?” said Kyle Kirkup, who teaches at the University of Ottawa’s law school and who took to social media, along with many other law professors and lawyers, to protest Wagner’s decision.

Then, four days later on a Monday, McLachlin issued another order that radically varied Wagner’s decision.

McLachlin used her authority as chief justice to give the go-ahead to almost every group that applied to intervene — including Egale, the Lesbian Gays Bisexual and Trans People of the University of Toronto, Start Proud and OUTlaws, and the LGBTQ Coalition of B.C.

The complex legal case is focused on the actions of provincial law societies which have refused to accredit any future graduates of Trinity Western’s proposed law school.

The university is based in Langley, B.C. and describes its mission as one of producing “Godly Christian leaders”. It asks students at its undergraduate school and teachers’ college to sign a covenant stating they will not engage in sexual relations while they are studying at Trinity Western until they are married — and only then if they are heterosexual.

Same-sex couples at Trinity Western must take a no-sex pledge even if they are legally married. Trinity Western means to apply the covenant to its planned law school.

McLachlin’s action in overriding Wagner means close to thirty different groups will be allowed to make their legal arguments before the justices of the top court — so many that McLachlin also made an order to extend the hearing from one day to two, on Nov. 30 and Dec. 1.

“That kind of Hail Mary pass a few days later was very surprising,” Kirkup said.

McLachlin, the longest-serving chief justice of Canada in history, announced in June she will retire in December. Wagner, the colleague whose order she effectively erased, is widely rumoured to be a leading candidate to replace her.

“It seemed odd,” said University of Ottawa law professor Carissima Mathen. “One of the law societies had made a specific argument about the importance of preventing discrimination of LGBTQ people. It’s possible that he (Wagner) could have seen that … they (the LGBTQ groups) didn’t have a fresh perspective, which is the legal test for intervention.

“So, there is a bit of a judgment call on this. That said, we can’t ignore that this created strange optics.”

As is customary, Wagner didn’t give reasons for either granting or dismissing would-be interveners’ applications.

Bruce Ryder, who teaches law at Osgoode Hall Law School in Toronto, thinks Wagner may have been worried about the hearing becoming unwieldy.

“That seems more likely … as opposed to some kind of sinister move to keep voices from being heard,” he said.

“The chief justice … was probably aware of the negative feedback the court was receiving on social media, especially in LGBTQ communities, and was probably troubled that an impression was left that the court had a bias ahead of time.”

Aware that Wagner was concerned about the court’s time and resources, Ryder said, “the chief justice probably said,’You know what? Let’s add another day, and then we can let them all in.’”

But equally puzzling is the fact that Wagner — while categorically excluding LBGTQ groups whose rights are a subject of the case — did grant leave to three religious groups to intervene and explain their views: the Association for Reformed Political Action (a Christian group), the Christian Legal Fellowship and the National Coalition of Catholic School Trustees.

Kirkup points out that McLachlin, as chief justice, crafted a legacy that sought to improve the stature of the top court by making its workings more open and accessible, by allowing cameras in the courtroom, by doing media interviews and holding media lock-ups for big cases.

“You might wonder if she kind of swept in here a few days after the initial order came down because she was concerned about the institutional legitimacy of having the group excluded by Trinity Western not have a seat at the table for the court’s deliberations,” Kirkup said.

One thing McLaghlin did not vary was the terms under which interveners can make their pitch to the top judges: five minutes in oral argument and briefs no longer than ten pages.

“We’re going to get legal intervenors, but they get 5 minutes, which is an extremely minimal amount of time to make a point,” Mathen said.