By Patrick F. Baud and Maxime St-Hilaire
On February 23, 2017, the Supreme Court of Canada granted leave in two appeals arising from the British Columbia and Ontario law societies’ decision not to accredit of Trinity Western University’s law school. Trinity Western University, a private, evangelical Christian university in British Columbia, requires students to sign its Community Covenant as a condition of admission to the law school. The Community Covenant prohibits students from engaging “sexual intimacy that violates the sacredness of marriage between a man and a woman”. Without the law societies’ accreditation, the law school’s graduates will not be automatically eligible to be admitted to the bar.
One unprecedented order’s tale
On March 6, 2017, in all likelihood acting under section 79 of the Supreme Court Act, the Registrar of the Supreme Court scheduled the Trinity Western University appeals for one day of hearings.
In June 2017, the Supreme Court received 26 motions for intervention from a range of groups, including religious organizations, LGBTQ groups and civil liberties and lawyers’ associations.
The Registrar, according to rule 58 of the Rules of the Supreme Court of Canada, submitted the motions to Justice Richard Wagner for decision on July 27, 2017.
On July 27, Justice Wagner decided the motions for intervention, granted nine (two of which were for the British Columbia appeal alone) and dismissing the remaining 17, including all of those made by LGBTQ groups. The docket in both appeals indicates that none of the parties, successful or unsuccessful interveners requested reconsideration or rehearing of the motions for intervention.
On July 31, 2017, Chief Justice Beverley McLachlin ordered that the appeals be scheduled for two days of hearings and ordered that Justice Wagner’s order be varied, granting the 17 motions that Justice Wagner had dismissed on July 27. The Chief Justice’s ordering of an additional day of hearings probably falls under her powers over the “entry of appeals and order of hearing” under section 79 of the Supreme Court Act, but the authority for her order varying that of Justice Wagner remains unclear.
On August 2, 2017, the Supreme Court published a news release explaining that “scheduling considerations informed Justice Wagner’s decision not to grant all applicants the right to intervene”. The news release went on to explain that “[t]he scheduling of hearings is the Chief Justice’s responsibility”, that on July 31 she “decided to add a second day to the hearing”, and that the “Chief Justice and Justice Wagner discussed the matter and agreed that all applicants could now be given the right to intervene”. Finally, the news release goes on to say that “[w]ith Justice Wagner’s agreement and support, the Chief Justice issued a new order to…give all remaining applicants the right to intervene. This was a variation of Justice Wagner’s order and did not overrule his order, which remains in place”.
On August 2, the Globe and Mail reported that Justice Wagner “believed the views of LGBTQ advocates were well represented” among the nine groups whose motions for intervention he granted’; he described this as a “‘judgment call’”. But “when he was made aware of concerns on social media, he sought out Chief Justice McLachlin to see what could be done” and in Justice Wagner’s words, he and the Chief Justice “‘decided that it would be best to add another day, and have all the applications granted’”.
Express statutory powers
The Chief Justice’s order does not cite any statutory authority for the variation of Justice Wagner’s order. Although the news release and the Globe’s interview with Justice Wagner clarify the circumstances in which Chief Justice McLachlin varied Justice Wagner’s order, neither sheds light on the statutory authority by which she did so.
Neither the Supreme Court Act nor the Rules of the Supreme Court expressly allow a judge to vary their own or another judge’s order on a motion for intervention. Indeed, such a power would be at odds with the provision in rule 75 that “[s]ubject to Rule 78, there shall be no reconsideration or re-hearing of a motion” which, like this one, was decided by a judge. Rule 78 establishes that an order by the Registrar is not on an equal footing with a judge’s order in this regard: it allows “any party affected by [an] order [made by the Registrar]…[to] make a motion to a judge to review the order”, implicitly giving the reviewing judge the power to vary or revoke the order. Likewise, subsections 65(4) and 65.1(3) of the Supreme Court Act allow the Supreme Court to “modify, vary or vacate a stay [of execution or proceedings] order” made by one of its judges.
The Supreme Court Act can only be amended by the Parliament of Canada under section 101 of the Constitution Act, 1867, or, as the Supreme Court decided in the Reference re Supreme Court Act, ss 5 and 6, through the constitutional amending procedures of paragraphs 41(d) and 42(1)(d) of the Constitution Act, 1982, if it is in relation to the Court’s “composition” (including its “continued existence”) or “essential features”. Under subsection 97(1) of the Supreme Court Act, the Rules of the Supreme Court are made by all the judges of the Court “or any five of them”. There is no indication that the Rules of the Supreme Court were amended by at least five judges to allow the variation of an order in a motion for intervention, let alone retroactively.
Section 56 of the Supreme Court Act provides that “[p]roceedings on appeal shall, when not otherwise provided for by this Act…or the general rules and orders of the Court, be in conformity with any order made, on application by a party to the appeal, by the Chief Justice or, in the absence of the Chief Justice, by the senior puisne judge present.” Neither the docket in the appeals nor the news release indicate that any party to either appeal applied to the Chief Justice have Justice Wagner’s order varied. And even if a party had applied, it is not clear that the question of whether such an order can be varied is “not provided for by [the Supreme Court Act]…or the general rules and orders of the Court” since, as we have seen, rule 75 prohibits reconsideration and rehearing of a motion and, implicitly, prevents varying or revoking of an order made by a judge on a motion.
Rule 3(1) provides that “[w]henever these Rules contain no provision for exercising a right or procedure, the Court, a judge or the Registrar may adopt any procedure that is not inconsistent with these Rules or the [Supreme Court Act].” The French version of rule 3(1) – equally authoritative by virtue of section 9 of the Official Languages Act – is, in certain ways, broader, “[e]n cas de silence des présentes règles, la Cour, un juge ou le registraire peut établir toute règle procédurale non incompatible avec les présentes règles ou la Loi”. Since the Rules are arguably, but nothing is less certain, silent on whether an order on a motion for intervention can be varied, a judge, including, of course, the Chief Justice, could conceivably adopt a procedural rule to fill this gap. But there is no sign that a procedural rule along these lines was established to fill a gap in the Rules by virtue of rule 3(1). The Court may, however, interpret rule 3(1) more broadly, perhaps relying more heavily on the English text, which refers to a “procedure”, rather than a “procedural rule”, the former of which could be the procedure employed in a particular appeal, as opposed to a more generally applicable rule.
The Court could draw on two of its own judgments in support of such an interpretation. In Reekie v Messervey, Justice Sopinka, writing for himself, Chief Justice Dickson and Justice McLachlin (as she then was), concluded that rule 3(1)’s predecessor allows the Court to reconsider a decision on an application for leave to appeal where this is necessary to prevent an “injustice”. Justice Sopinka emphasized that the Court’s residual discretion does “not permit [the Court] to act in a manner that flies in the face of the express provisions of a rule”. Although the Court’s Rules both then and now prohibit the rehearing of applications for leave to appeal, Justice Sopinka concluded that this prohibition does not apply to an application which, like Reekie, was decided on the basis of written representations alone. As a result, the Court could exercise its residual discretion to hear and reconsider the application for leave to appeal.
In R v Hinse, Chief Justice Lamer, writing for a unanimous Court on this point, seemingly went further than Justice Sopinka and concluded that rule 3(1)’s predecessor allowed the Court, despite the bar in the Rules and even on its own initiative, to exercise residual discretion on applications for leave to appeal. In appropriate cases, the Court could “direct a hearing to reconsider the merits of an initial order refusing leave”, “reconsider a decision made on application for leave” or “reconsider and quash a previous ruling on leave on its own motion” (emphasis added). This residual discretion would be exercised only in “exceptional cases” and “exceedingly rare” circumstances, as where an “exceptional and unique question of jurisdiction” arises, as was the case in Hinse itself, or where, as in Reekie v Messervey, the Court becomes aware of an “injustice” that would result from not reconsidering the application for leave to appeal, or on the contrary, as in Johnson v The Queen,  3 SCR viii, the Court becomes aware of something about the appeal that makes them reconsider their decision granting leave.
As far as we know, this approach to applications for leave to appeal has not been extended to motions for intervention, though the Court seldom publishes reasons for its orders or “judgments” on motions (although it appears that a decision on a motion made by more than one judge is considered a “judgment” by the Court, the Supreme Court Act, the Rules and indeed, the Court’s own practice are unclear on this point). The 1983 version of the Rules, which were interpreted in Reekie and Hinse, prohibited rehearings of leave applications and other motions, but did not explicitly preclude their reconsideration. By contrast, the current version of the Rules, adopted in 2002, prohibits in rule 75 – apart from orders made the Registrar, as we have seen – both the reconsideration and rehearing of a “motion”, a category which, in Part 14 of Rules, is distinct from both “appeals” and “applications for leave to appeal”. Indeed, rule 73 allows for the reconsideration (but not explicitly the rehearing) of applications for leave to appeal in “extremely rare” cases, codifying Hinse, and rule 76 provides for the conditions under which an appeal may be re-heard after it has been heard and either before or after it has been decided (see M. St-Hilaire).
The current Rules signal the intention on the part of the Court to avoid both reconsideration and rehearing of motions that have been disposed of by a judge, including motions for intervention, and to make orders on those motions final. Given that intention and if the Court’s residual discretion in fact extends to such motions, the circumstances in which the exercise of that discretion will be appropriate must be all the more rare under the current Rules. Moreover, it is not clear that the Court having a residual discretion to quash or “vary” its own decisions means the Chief Justice can do the same with an order of one of her colleagues.
Implied statutory powers
The Supreme Court was originally created by Parliament by virtue of section 101 of the Constitution Act, 1867. In spite of the constitutional entrenchment of its existence, composition and essential features, including its jurisdiction as the general court of appeal for Canada (Reference re Supreme Court Act, ss. 5 and 6), the Supreme Court remains a statutory court, whose jurisdiction is d’attribution, and not de principe. In this way it is unlike the superior courts within the meaning of sections 96-100 of that same Constitution Act, 1867, but like the Federal Courts (Windsor (City) v Canadian Transit Co; Trial Lawyers Association of British Columbia v. British Columbia (Attorney General); Canada (Attorney General) v. TeleZone Inc.). Though partially protected by the constitutional amendment procedure, the source of the Supreme Court’s powers remains the Supreme Court Act and, within the framework of that Act, the Rules of the Supreme Court.
As a statutory court, the Supreme Court has the powers expressly conferred by the Supreme Court Act and the Rules as well as the powers that are implied by them. Indeed, like an administrative tribunal, a statutory court has “‘all [implied] powers practically necessary for the accomplishment of the object intended to be secured by the statutory regime’”, namely “control[ling] the conduct of legal proceedings before it” and “control[ling] its own process” (R v Cunningham).
Since rules 52(a), 55, and 59(1)(b) expressly confer the power to grant or dismiss motions for intervention and to set terms and conditions for the intervention of those whose motions are granted, it is conceivable that they necessarily imply the power to alter the terms and conditions imposed granted in light of changing circumstances. The doctrine of res judicata and the derived doctrine of functus officio do not seem to apply to incidental orders. As a result, the judge who made such an order or the Court on whose behalf he or she made the order may not only vary the terms and conditions, but also, under exceptional circumstances, reconsider the order granting or dismissing the motion for intervention. Justice Wagner did not formally reconsider his decision nor did he refer the question of whether it ought to be reconsidered to the Court.
It is also possible that the judge responsible for managing the appeal has the implied power to reconsider and vary orders incidental to the appeal. There is no clear indication in the Supreme Court Act or the Rules that the Chief Justice is the Supreme Court’s sole case management judge. However, to the degree that the Chief Justice’s case management role is established in the Court’s practice, and if the Chief Justice, as case management judge, enjoys the implied power to vary with orders incidental to the appeal, then that implied power may well have served as the basis for her order varying Justice Wagner’s original order.
But what, as a matter of principle or standard, might be at stake with such a seemingly unprecedented use of such an unclearly established power is the individual dimension of judicial independence.
Constitutionally protected individual judicial independence
In Canada, the formal, that is, supra-legislative, Constitution is composed of, not only a “written” part, the “supreme law” within the meaning of section 52 of the Constitution Act, 1982, but also an “unwritten” one. This latter part is made of judicially recognized underlying principles of the former (Reference re Secession of Quebec). Among those principles, the one that has been given the most legally tangible and far-reaching implications is judicial independence – which, depending on the tribunal, may also be directly rooted, as a constitutional protection, in sections 96-100 of the Constitution Act, 1867, or paragraph 11(d) of the Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982.
It is mainly the “collective” aspect of this two-dimensional principle that has so been given teeth, but this does not alter the fact that the Supreme of Court of Canada’s own jurisprudence does recognize an individual dimension to judicial independence. In the Reference re Remuneration of Judges of the Provincial Court (P.E.I.), Chief Justice Lamer’s majority reasons (Justice La Forest dissented in part, but not on this point) initially appear to be to the effect that the three “core characteristics” of judicial independence, “security of tenure, financial security, and administrative independence”, are present under both the collective and individual dimensions of judicial independence (para. 118). However, a few paragraphs later, Chief Justice Lamer specifies that, “[t]o be sure, sometimes a core characteristic only attaches to a particular dimension of judicial independence; administrative independence, for example, only attaches to the court as an institution (although sometimes it may be exercised on behalf of a court by its chief judge or justice). (para. 120)” As far as we know, this falls short of international standards of judicial independence, which include the judge’s individual administrative judicial independence, which precisely might be at stake here.
Global standards of internal judicial independence
In its Report on the independence of the judicial system (Part I), the Venice Commission, an advisory body established by the Council of Europe, points out that, while the “issue of internal independence within the judiciary has received less attention in international texts than the issue of external independence”, it seems, “however, no less important.” The Commission warns that “[a] hierarchical organisation of the judiciary in the sense of a subordination of the judges to the court presidents or to higher instances in their judicial decision making activity would be a clear violation of this principle.” The Commission then quotes, in support, the Consultative Council of European Judges, according to whom: « The fundamental point is that a judge is in the performance of his functions no-one’s employees; he or she is holder of a State office. He or she is thus servant of, and answerable only to, the law. It is axiomatic that a judge deciding a case does not act on any order or instruction of a third party inside or outside the judiciary. […J]udicial independence depends not only on freedom from undue external influence, but also freedom from undue influence which might in some situations come from the attitude of other judges. » The Commission sums up its recommendations by stressing that “the principle of internal judicial independence means that the independence of each individual judge is incompatible with a relationship of subordination of judges in their judicial decision-making activity.”
To the extent that the Commission also “strongly recommends that the allocation of cases to individual judges should be based to the maximum extent possible on objective and transparent criteria established in advance by the law or by special regulations on the basis of the law, e.g. in court regulations”, and that “[e]xceptions should be motivated”, one might well wonder why this standard would not apply to case management powers of court presidents or presidia, or of chief justices.
In its news release, the Supreme Court of Canada, basing itself on the fact that “scheduling of hearings is the Chief Justice’s responsibility”, explained that the Chief Justice and Justice Wagner “discussed the matter”, so that the “varying” of his order by the Chief Justice had been made “[w]ith Justice Wagner’s agreement and support”. Although this helps explain the sequence of events, it is not clear that the sequence was consistent with the individual dimension of judicial administrative independence, at least as a global standard.
Patrick F. Baud is an honours law student at McGill University. He serves as policy advisor to Ontario’s Financial Accountability Officer and research assistant to the Parliamentary Budget Officer. This post does not necessarily represent the views of either of his employers.
Maxime St-Hilaire is assistant professor of law at Université de Sherbrooke.