Canada's high court to decide whether courts can hear church membership cases

Canadian Supreme Court to decide whether civil courts can review membership decisions of churches

Last week, the Supreme Court of Canada (SCC) heard oral argumentAn opportunity for lawyers to summarize their position before the court and also to answer the judges' questions. on whether the civil court system had jurisdiction involving a Jehovah’s Witness member who felt he had been wrongfully removed from church membership.

Mr. Wall had been the member of the Highwood Congregation of Jehovah’s Witnesses who had been disfellowshipped by church elders because of allegations that he had been drunk twice and allegedly verbally abused his wife. Because he had been “shunned” by the church, Wall, a real estate agent, could no longer do business with any members of the Jehovah’s Witnesses.

He appealed the elders’ decision within the church’s administrative judiciary program, and the decision was upheldThe appellate court agrees with the lower court decision and allows it to stand..

He decided to sue in civil court, and ultimately the Alberta Court of AppealA request made after a trial by a party that has lost on one or more issues that a higher court review the decision to determine if it was correct. To make such a request is "to appeal" or "to take an appeal." One who appeals is called the "appellant;" the other party is the "appellee." (ABCA) declared that the courts had jurisdiction to hear the case. In fact, the ABCA went as far as to say that a church could be sued for economic losses incurred by a dismissed member.

Several religious organizations had concerns about the government’s potential encroachment on issues that previously were addressed strictly within the church and filed briefs and intervened. Speaking on behalf of the Canadian Council of Christian Charities, attorney Barry W. Bussey stated three reasons why imposing secular requirements on religious decisions would be harmful:

"First, they may not understand the legal nuance and properly carry out the secular norms.  Second, they will be hamstrung by disgruntled members who may have an “axe” to grind in a religious dispute; Third, they have limited resources to deal with court actions – their community, indeed our country, needs those resources and energy spent in ministry, not fighting over procedure."

Mr. Wall's attorneys argued that churches should be treated the same as any other private association or club, and that they should be held civilly accountable if they fail to follow their agreed-upon membership processes.

Given the United States’ strict separation of church and state, it is difficult to conceive that a church member would be able to sue a congregation over a religious decision. In fact, courts in the United States have avoided becoming entangled in internal church decisions.

Canada’s governing document, the Canadian Charter of Rights and Freedoms which was passed in the 1980s, does not have a clear analogy to the United States’ establishment clause, and there is broad discretion provided in Charter’s “notwithstanding” clause in Section 33 for the Federal Government or the Provinces or even the courts to override portions of the Charter relating to fundamental rights including religious freedom. Where the American system’s designation of freedoms is in written format, Canada’s designation preserves the British tradition of parliamentary supremacy.

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Audio and Video of the full hearing November 2, 2017, in Judicial Committee of the Highwood Congregation of Jehovah’s Witnesses v. Randy Wall is available here.

Photo: Supreme Court of Canada – DepositPhotos.com