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Court Oversight of Church Discipline (an Update)

Today, the Supreme Court of Canada released a very significant decision regarding religious freedom in Canada.

Back in September, I wrote an article about a case out of Alberta called Wall v. Judicial Committee of the Highwood Congregation of Jehovah’s Witnesses. At stake in that case was whether Canadian courts have the authority to review church discipline decisions. The courts in Alberta all agreed that they did, as long as the fairness of the disciplinary decision was in question, or the decision had an impact on the economic interests of the disciplined member. Needless to say, the case had the potential to open up the floodgates to state intrusion into church affairs.

In its decision, the Supreme Court of Canada not only closed those floodgates, but bolted them shut with clear and comprehensive reasoning that essentially ends the possibility of state oversight of church membership. Justice Malcolm Rowe, on behalf of a unanimous court, summarized the Supreme Court’s conclusion as follows:

“In the end, religious groups are free to determine their own membership and rules; courts will not intervene in such matters save where it is necessary to resolve an underlying legal dispute.”[1]

Let me try to summarize the significance of this conclusion in three points:

1. Canadian courts will not intervene in church membership decisions where it’s alleged that the process was unfair

This potential implication left some churches scrambling to review their disciplinary processes to ensure that they met or surpassed Canadian legal standards (some of those are captured in this article by Paul Carter). Thanks to the Supreme Court, this will no longer be necessary, because as Justice Rowe put it,

“[T]here is no free standing right to procedural fairness with respect to decisions taken by voluntary associations. Jurisdiction cannot be established on the sole basis that there is an alleged breach of natural justice or that the complainant has exhausted the organization’s internal processes.”[2]

This broad conclusion applies not only to churches, but to any “voluntary associations”, whether they be chess clubs or churches.

When it comes to churches and religious organizations, however, Justice Rowe made a further, significant conclusion. He acknowledged that, in religious contexts, procedural rules may actually involve the interpretation of religious doctrine, which is something that Canadian courts have never wanted to touch.

He cited the example of the three-step process in Matthew 18:15-17 and noted, “The courts lack the legitimacy and institutional capacity to determine whether the steps outlined in Matthew have been followed.”[3] This recognition by the court that doctrine doesn’t apply only to beliefs but extends to practices is a very welcome one that may have a significant impact on future religious freedom cases.

While all churches should still be encouraged to adopt and implement disciplinary procedures that are fair (and we can learn a lot about fairness from the Canadian legal system), they can now do so without the threat of judicial sanction looming over their shoulders.

2. Canadian courts will not intervene in church membership decisions where it has some economic impact on the disciplined member

Recall that Mr. Wall, the disciplined member in the case, was a real estate broker who relied on his fellow Jehovah’s Witnesses for the majority of his clientele. He argued that, since his discipline had a negative impact on his economic interests (and not just his religious interests), Canadian courts had jurisdiction to review and possibly overturn the disciplinary decision. Although the courts in Alberta agreed with this reasoning, the Supreme Court did not:

“Before the chambers judge, Mr. Wall also argued his rights are at stake because the Judicial Committee’s decision damaged his economic interests in interfering with his client base. On this point, I would again part ways with the courts below. Mr. Wall had no property right in maintaining his client base… Mr. Wall does not have a right to the business of the members of the Congregation”.[4]

In other words, the fact that Mr. Wall’s livelihood was affected by the discipline didn’t warrant court intervention. It didn’t matter that the impact of the discipline extended beyond his spiritual life. Courts will not intervene unless it is necessary to resolve an underlying legal dispute (more on that below).

This is an important point. Justice Rowe is saying that having an economic interest is not the same as having a legal right. Mr. Wall may have had an economic interest in maintaining his status as a member of his congregation, but that didn’t mean that he had a legal right to that interest. Courts will only intervene if legal rights are at stake.

3. Canadian courts will intervene in church membership decisions where a legal right is in issue

This is the one exception that the court recognized as warranting court intervention. There needs to be a legal right at stake. But what does this mean? And should churches be concerned about this exception?

The answer is no. Simply put, a “legal right” is a right recognized by law, whether it be statutory law or the common law (i.e. judge-made law). The three examples cited by Justice Rowe in the decision were contract, tort (personal injury) and restitution.[5] Of all the available legal rights in Canada, Mr. Wall and his legal team only raised one legal right as being potentially applicable to this situation, and it was contract. They argued that, as a member, a contract existed between himself and the congregation, and as such, it was a legal relationship that gave rise to legal rights and responsibilities.

Justice Rowe didn’t buy this argument. He found there to be no evidence to show that Mr. Wall and his congregation intended to create legal relations that would be governed within the legal realm. The case would have been different if a civil or property right had been formally granted to Mr. Wall by virtue of his membership (e.g. property on a religious colony), but that wasn’t the case here.[6]

This means that most churches have nothing to worry about. Mere church membership does not create a legally binding contract, and without a legal right at stake, the courts have no place in weighing in on church membership decisions.

This is a significant victory for religious freedom in Canada. It’s one that we ought to give thanks for. My mentor and friend, Tim Kerr, has taught me that if we’re not thankful for the gifts that God gives us, we’re no better than spoiled children, and a good Father often withholds further gifts until his children learn to be grateful. Our Heavenly Father has given us a precious gift. It’s a gift that protects our freedom to function within our churches without state interference. And so, let us all take time today, and in the days to come, to give thanks to our Father for this undeserved blessing.

 


[1] Highwood Congregation of Jehovah’s Witnesses v. Wall, 2018 SCC 26, at para. 39.

[2] Ibid., at para. 24.

[3] Ibid., at para. 38.

[4] Ibid., at para. 30.

[5] Ibid., at para. 13.

[6] Ibid., at paras. 28-29.

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