For immediate release
“Issues of theology are not justiciable.”
LONDON, ON – In a unanimous decision, released today, the Supreme Court of Canada (SCC) has affirmed that church membership decisions cannot be judicially reviewed by civil courts except in very narrow circumstances. The Court stated: “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” and that “even where review is available, the courts will consider only those issues that are justiciable. Issues of theology are not justiciable.”
Christian Legal Fellowship (CLF) intervened in the litigation and welcomes the SCC decision. Derek Ross, CLF’s Executive Director, comments:
“We are encouraged by the Supreme Court’s strong affirmation of the autonomy of religious communities. As the European Court of Human Rights has stated, “the autonomous existence of religious communities is indispensable for pluralism in a democratic society.” In allowing this appeal, the Supreme Court has not only protected the rights of religious communities to determine their own rules and composition; it has affirmed that space must be preserved for all Canadians to pursue certain goals and relationships, free from state interference. This benefits people of all faiths, and all voluntary associations, religious or otherwise. Today’s decision is not only a victory for church autonomy, but for a truly robust and multicultural civil society.
”
Decision
The Supreme Court’s decision was penned by Justice Rowe. Rowe J explained that the central question in the appeal was “when, if ever, courts have jurisdiction to review the decisions of religious organizations where there are concerns about procedural fairness.” He concluded as follows:
“Courts are not strangers to the review of decision making on the basis of procedural fairness. However, the ability of courts to conduct such a review is subject to certain limits. These reasons address three ways in which the review on the basis of procedural fairness is limited. First, judicial review is reserved for state action. In this case, the Congregation’s Judicial Committee was not exercising statutory authority. Second, there is no free-standing right to procedural fairness. Courts may only interfere to address the procedural fairness concerns related to the decisions of religious groups or other voluntary associations if legal rights are at stake. Third, even where review is available, the courts will consider only those issues that are justiciable. Issues of theology are not justiciable.”
In short, the Court has drawn a very clear line to distinguish between ‘state actions’ that can be subjected to judicial review, and private activities that cannot. In so doing, they have affirmed that the ordinary membership decisions of churches and other voluntary associations generally do not fall under the purview of the courts, unless some other legal interest is engaged.
CLF's Submissions
The Supreme Court has repeatedly affirmed that the Charter must be interpreted consistently with Canada’s international human rights obligations and the relevant principles of international law. CLF’s factum highlighted these international authorities, including the International Covenant on Civil and Political Rights and Universal Declaration of Human Rights. CLF explained how these instruments protect the right of religious associations to “determine their statutes, structure andactivities and make decisions without State interference.” As CLF stated in its factum:
“International thought on human rights provides a persuasive source for interpreting the scope of the Charter, and within that body of thought there is growing consensus that the autonomous existence of religious communities is an important social good for at least three reasons: (i) it is necessary for the realization of individual freedom and personal autonomy; (ii) it facilitates the development and transmitting of religious beliefs between generations; and (iii) it is an indispensable element for genuine pluralism in a free and democratic society.” (para 18)
Specifically, CLF’s factum explained that international jurisprudence supports the following principles:
Religious communities are a necessary means by which individuals exercise their rights to religious freedom. Accordingly, the law must safeguard religious communities against unjustified State interference in their internal affairs and prohibit State actors from obliging a religious community to admit new members or to exclude existing ones.
State actors must respect the rights of religious communities to respond to internal dissent in accordance with their own rules and interests. It is not the duty of state authorities to act as arbiter of religious dogma whether between religious organizations or between opposing factions that may emerge within them.
The autonomy of the group’s members to live out their religious way of life in community together is undermined if the State dictates how they can determine their membership. To harm group autonomy is to harm individual autonomy.
When the State interferes with the autonomy of religious communities, particularly as it relates to the composition of the group, it meddles with the very process of forming the religion. This undermines one’s freedom to live that religious way of life, and of passing it on to future generations.
Religious communities are intrinsic social goods that produce benefits for the larger community. Their existence is necessary to the proper functioning of democracy itself; they play an indispensable role in creating and maintaining the social conditions necessary for the free development of citizens’ diverse beliefs and opinions.
Background
The appeal involved a former member of the Highwood Congregation of the Jehovah's Witnesses, Mr. Wall, who was “disfellowshipped” due to various allegations of “wrongdoings”. All appeals by Mr. Wall within the internal organization of the Jehovah's Witnesses were dismissed.
Mr. Wall sought judicial review of this expulsion. He argued that it had resulted in him being shunned by many members of the Jehovah's Witnesses community, which negatively impacted his business. The chambers judge found that the court had jurisdiction to hear the matter to the extent that the “disfellowship” had an economic impact on Mr. Wall.
On appeal, the ABCA concluded in a 2-1 decision that the court had jurisdiction to hear the matter and returned it to the lower court to be heard by another judge. However, in a strongly-worded dissent, Justice Wakeling held that the internal decisions of private religious bodies are not subject to judicial review. Even if they were, he concluded, Mr. Wall's expulsion was not a justiciable issue. The Highwood Congregation was subsequently granted leave to appeal to the Supreme Court.
About Christian Legal Fellowship
Christian Legal Fellowship (CLF) is Canada’s national association of Christian lawyers, law students, and jurists. CLF has over 700 members across Canada practicing in all areas of law and in every size of practice. While having no direct denominational affiliation, CLF’s members represent more than 35 Christian denominations working in association together.
CLF is dedicated to advancing the public good by articulating legal and moral principles that are consistent with, and illuminated by, our Christian faith through court interventions and public consultations. Over nearly two decades, CLF has been granted intervener standing in almost 40 cases involving Charterissues—including 12 at the Supreme Court of Canada—seeking to advance justice, protect the vulnerable, promote equality, and advocate for freedom of religion, conscience, and expression.
CLF has a unique expertise in international law; it has Special Consultative Status with the Economic and Social Council of the United Nations and has participated in proceedings before international courts such as the Supreme Court of Sweden and the Inter-American Court of Human Rights. CLF also has a considerable history of intervening to speak to the importance of international human rights obligations in interpreting fundamental rights and freedoms in Canada, including at the Supreme Court of Canada.
CLF was represented in Wall by Derek Ross and Deina Warren.
Read more:
To read the Supreme Court of Canada’s decision, click here
To read the factum of the Christian Legal Fellowship, click here
To read a summary of CLF’s oral submissions, click here
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For more information contact:
Sarah Mix-Ross
Associate Counsel
Christian Legal Fellowship
519-601-4099
smixross@christianlegalfellowship.org