Nov 8, 2017

Church congregation asks top court to keep hands off membership decisions

Beatrice Britneff
iPolitics
November 2, 2017

The judicial committee of a congregation of Jehovah’s Witnesses asked the Supreme Court of Canada today to rule that Canadian courts do not have the authority to review the expulsion of one of their members — arguing that judicial review by the courts should not extend to decisions by private and voluntary associations that have no effect on the public at large.

The Highwood Congregation, located in northwest Calgary, brought its appeal to Ottawa after Randy Wall took the congregation to court for expelling him from the church. The congregation’s judicial committee “disfellowshipped” Wall in the spring of 2014 after his family reported to the group’s elders that he had been drunk on two occasions and was verbally and emotionally abusing them — and after determining he was not “not sufficiently repentant” for those actions.

After three internal and unsuccessful appeals, Wall applied for judicial review of the congregation’s decision-making process, insisting it was flawed and that the congregation’s judicial committee had “breached the principles of natural justice and the duty to be fair.” Both the Court of Queen’s Bench and Court of Appeal in Alberta declared that it is within the jurisdiction of the superior court to review Wall’s case.

The congregation’s appeal of those two rulings, heard by the Supreme Court Thursday morning, has attracted a lot of attention from legal experts and religious communities across the country. Echoing the congregation’s plea today in the packed Ottawa courtroom were 12 religious, political and civil liberties groups — all of them unanimous in arguing the top court should not interfere in the membership decisions of religious bodies.

The consequences of such interference, they said, would be detrimental to the self-determination of religious groups.

“It (would) fundamentally alter our nation and not for the better,” counsel for the Justice Centre for Constitutional Freedoms said in court.

“The wish or desire of one person to associate with an unwilling person (or an unwilling group) is not a legal right of any kind,” the group wrote in its written submission to the Supreme Court. “For a court, or the government, to support such a ‘right’ violates the right of self-determination of the unwilling parties.”

This question of jurisdiction is one that has been explored and decided on by the courts — including the Supreme Court of Canada — in the past. Case law shows the top court has recognized the the autonomous ability of religious and private voluntary associations to govern their own affairs and dictate who can and cannot be a member of a congregation.

The courts have determined, however, there is room to intervene in specific cases when a membership decision turns on property or civil rights — or is of “sufficient importance to deserve the intervention of the court.”

Wall — who does not dispute the allegations against him that formed the basis of the congregation’s decision to kick him out — argues his case meets those requirements because his “disfellowship” caused him to lose business clients, suffer “significant economic harm” and experience fraught family relations.

In return, the congregation argues that neither Wall’s property rights, nor his civil rights, were affected by their decision. Justice Russell Brown also remarked during the hearing that “one does not have a justiciable right to earn a living.”

The congregation also argued that it did not ask or force its members to boycott Wall’s business — but people choose to do so in line with their religious convictions. Counsel for the congregation also said that “the door is not closed” to Wall and he can be reinstated in the congregation in the future.

More generally, the congregation argued that it would be inappropriate for the courts to review the internal decision-making processes of religious groups because those processes are ecclesiastical.

In a news release, the Association for Reformed Political Action — one of the 12 intervening groups — said the case before the Supreme Court has “profound implications for the separation of church and state” and it believes the court should maintain a hands-off approach to membership decision-making by religious groups.

“Secular judges have no authority and no expertise to review a church membership decision,” the association’s director of law and policy, André Schutten, wrote in the statement. “Church discipline is a spiritual matter falling within spiritual jurisdiction, not a legal matter falling within the courts’ civil jurisdiction. The courts should not interfere.”

The Canadian Muslim Lawyers Association took a slightly more nuanced position, arguing in its factum that “there will inevitably be cases where judicial intervention in the decisions of religious groups is ‘warranted'” but courts “should intervene … only in the rare case where required by a prevailing public interest.”

Thursday’s hearing was heard by all nine justices on the Supreme Court bench. Chief Justice Beverley McLachlin said the court will reserve its decision after today’s hearing.

Overflow seating was set up in the front hall of the Supreme Court to accommodate all the people who came to see the hearing live.

http://ipolitics.ca/2017/11/02/church-congregation-asks-top-court-to-keep-hands-off-membership-decisions/
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