In what is being described as an unprecedented move, the chief justice of the Supreme Court of Canada changed an order this week from one of her colleagues that would have excluded all LGBTQ groups from participating in two upcoming appeals that deal with discrimination based on sexual orientation.

Justice Richard Wagner had decided Friday that the groups would not be permitted to intervene in the cases involving Trinity Western University.

The private Christian university in British Columbia is facing challenges in having its proposed law school accredited in some provinces due to what critics say is a homophobic “community covenant” that bans students from having sex outside of heterosexual marriage.

Wagner’s order Friday faced backlash throughout the weekend on social media, with lawyers and LGBTQ activists expressing outrage over the exclusion of LGBTQ groups.

Some groups representing religious interests were granted leave to intervene, including the Christian Legal Fellowship and the National Coalition of Catholic School Trustees, although other religious groups were excluded.

As is customary, Wagner did not provide reasons for his decision.

Then on Monday, Chief Justice Beverley McLachlin surprised the parties by issuing a new order that “varied” Wagner’s order, declaring that the appeals would be heard over two days, Nov. 30 and Dec. 1, and granting leave to intervene to all 26 groups, including those representing LGBTQ voices.

She also provided no reasons.

LGBTQ groups in Ontario were taken aback by the initial refusal, given that some were permitted to intervene in the case in Ontario at the Divisional Court and Court of Appeal levels.

“We’re quite delighted that we can continue this case forward to its conclusion,” said lawyer Paul Jonathan Saguil, who represents Start Proud (formerly Out on Bay Street), which supports young LGBTQ professionals including lawyers, and OUTlaws, a coalition of LGBTQ student groups at Canadian law schools.

“Our focus at this point is on next steps,” said lawyer Marcus McCann, who represents LGBTOUT, a queer student association at the University of Toronto. “Our clients are looking forward to putting their perspective before the court in a way that’s useful and provides assistance to the court.”

It is the chief justice’s responsibility to manage the court’s calendar, including adding a second day for an appeal hearing that would make time to hear from more interveners, said lawyer Owen Rees, former executive legal officer at the Supreme Court.

“This is not an overruling,” he told the Star. “It was a varying of an order, and I fully expect that in this context, this would have been a collegial decision and one where the judge who made one order and the chief justice would have been on the same page.”

Lorne Sossin, dean of Osgoode Hall Law School, also pointed out it’s possible that more interveners were added simply because an extra day was set aside for the hearing.

“It may also be that the impression left by Justice Wagner’s initial decision, which granted intervention to some groups bringing additional perspectives on religious freedom, but not groups whose focus was more aligned with LGBTQ and equality rights, could have deprived the court from having the fullest possible array of perspectives for a case that has and will generate significant scrutiny,” he wrote in an email.

“Whatever the rationale or rationales, it is always preferable, in my view, to have some reasons provided where an initial decision is modified.”

The Law Society of Upper Canada, which regulates the legal profession in Ontario, voted 28-21 in 2014 to deny accreditation to Trinity Western because of the community covenant, meaning potential graduates would not be able to practise law in this province.

Law societies in Nova Scotia and British Columbia made similar decisions, but they were later overturned by the courts in those provinces. Meanwhile, the Ontario decision has been upheld by the province’s Court of Appeal. The Appeal Court endorsed the criticism around the covenant last year.

“My conclusion is a simple one,” wrote Justice James MacPherson for a unanimous three-judge panel in a 50-page judgment. “The part of TWU’s community covenant in issue in this appeal is deeply discriminatory to the LGBTQ community, and it hurts.”

Trinity Western appealed that decision to the Supreme Court, while the Law Society of British Columbia appealed from its loss in the B.C. courts.

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Interveners are not parties to a case, but have an interest in the matter and can bring a certain perspective to help the court in its decision. They are not permitted to raise new issues and have only five minutes each to present their case before the justices.

McLachlin’s decision Monday to change Wagner’s order regarding interveners left lawyers wondering if this had ever been done before. It would seem not.

“It was a very unusual reversal,” said Ottawa criminal defence lawyer Michael Spratt. “The chief justice’s act certainly left many court watchers and experts scratching their heads … But decisions on leave to intervene or appeal should be more transparent. This may be an opportune time to reconsider some of these procedures.”

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