It is an old adage: bad facts make bad law. Last week the Alberta Court of Appeal ruled that a former member of the Jehovah’s Witnesses (JW) had the right to sue his former church because they “shunned” or disfellowshipped him. Randy Wall, a real estate agent, had been a member of the JW faith for 34 years. In March 2014 he appeared before the church’s “Judicial Committee” because of his alleged incidents of drunkenness. During the hearing he admitted to being drunk on two occasions. However, he explained that his drinking on one occasion was the result of his despondency over the expulsion, from the congregation, of his 15 year old daughter and the church’s insistence that he and his wife were to “shun” their daughter for her offences against the faith. This put the family in distress. However, the Judicial Committee decided that he was not repentant and he too was disfellowshipped.
Wall appealed to the church’s Appeal Committee but was rejected, as was his further appeal to the Watch Tower and Bible Tract Society of Canada. In the fallout of his departure Wall lost half of his business clientele because they were JWs and would no longer do business with him.
Wall then took his former congregation to court on two grounds. First, he claimed to have been denied “natural justice”. Natural justice requires that a decision-maker provide the person appearing before him or her basic procedural justice such as advanced notice of the hearing and its issues to be decided and an unbiased decision maker. Second, Wall wanted compensation for his economic loss that resulted from the church’s decision to disfellowship him.
In court, the church argued that the court lacked jurisdiction to hear the case since it concerned internal church discipline matters. Historically, in liberal democratic states, the courts have been very reluctant to get involved in church disputes. Canadian courts have followed this well-worn path. The most common example of a court getting involved in an internal church dispute involves church dismissal of a clergy member where there is an employee/employer relationship.
The only case that comes close to this one, in my recollection, is the 1874 decision of the Privy Council (in London) which involved a dispute between the family of the deceased Joseph Guibord and the Catholic Church in Montreal over where Guibord was to be buried. The family wanted him buried in the consecrated area of the Catholic cemetery but the Church took the position that Guibord had so violated the instructions of the Bishop while he was alive that he had to be buried in the non-consecrated area of the cemetery. The Privy Council ruled that Guibord was to be buried in the consecrated area. After much acrimony that is where he was eventually buried — against the wishes of the church. After his burial the Church deconsecrated his burial plot, which only showed the futility of the court’s decision.
I cannot but wonder if the sympathetic facts in the Wall case had a part to play as to why the Alberta Court of Appeal took the decision it did. Consider that the JW church disfellowshipped Mr. Wall’s 15 year old daughter. Indeed, many who are not members of the church looking on might consider that objectionable. But the facts of the case also state that the church expected Mr. Wall and his wife to have very limited contact with their daughter because of her infraction, even to the point of suggesting or encouraging the family to have the child leave home. That did, no doubt, raise incredible pressure on Mr. Wall’s family. So much pressure, according to Mr. Wall, that it led him to drink alcohol to excess. That, in turn, was the basis of his own expulsion from church membership which then led to his business loss because the church members shunned him. It is a tragedy of events.
Given those facts, perhaps it is not surprising that he received a sympathetic hearing at the Court of Queen’s Bench and then at the Court of Appeal. However, bad facts make bad law. Because there are sympathetic facts, it does not give license for court intervention in internal church matters.
It is unheard of, in my experience and to my knowledge, that a court would say it has jurisdiction to hear a claim for compensation arising from a church expulsion. That has simply never been done.
The Alberta Court of Appeal’s 2-1 decision allows a trial court to hear Mr. Wall’s case. If Wall successfully proves his case it will be the first known Canadian case holding a church liable for financial loss of a church members’ expulsion. There is still some water to go under the bridge before this is a reality since the Court of Appeal decision may be appealed to the Supreme Court of Canada.
Whatever the outcome, this case raises some very intriguing, and I would suggest, troubling implications going forward. If a court has jurisdiction to review a religious community’s decision to expel a member and to make that community potentially liable for any economic harm then I perceive the following: first, it goes against a very basic understanding of how liberal democracies operate: the separation of church and state. The state has no business telling a church what it can and cannot do. Of course, there has always been reasonable limits to this basic principle such as dealing with tax exempt regulations. We have, until now, intuitively recognized that when it comes to membership issues these are the domain of the church not the state. The church is not, as Justice Wakeling correctly observed in his dissenting opinion, a public actor.
It should be noted that Justice Wakeling’s decision is, in my view, by far more compelling than that of the majority decision. He has backed up his reasons with 110 detailed and thoughtful footnotes (verses zero footnotes by the majority) arguing that the Court’s majority decision has no legal precedent to review the church’s decision on Mr. Wall’s membership. Justice Wakeling has a deep understanding of the issues involved and I expect that if this case were to be appealed to the Supreme Court of Canada his decision will be most persuasive.
The Court’s decision violates the separation of church and state principle because churches lose their autonomy to determine who can and cannot be a member. To suggest that the Court, by awarding damages, is helping to alleviate the sense of alienation, harm to dignity or financial loss because former friends do not want to associate with the person, as a result of a church membership decision, is an attempt to influence future decisions of religious bodies by threatening them with financial consequences for their religious decisions.
Second, consider the abuses that will become possible. A disgruntled member could hold the religious community at ransom – “Give me what I want or else…I am going to sue you for my losses in the breakdown of our relationship.” The demands could cover any kind of request including a demand of a church to change its teachings on a subject that is not deemed appropriate by the individual. And, if such teaching is politically incorrect then the church faces the strong arm of the state by sympathetic courts.
Third, under this new regime where are the boundaries for the courts? For example, will expulsion from other private organizations, such as the Rotary club or a local book club, warrant court intervention? As Justice Wakeling noted, Mr. Wall has no right to belong to the congregation nor does his freedom of association interest compel his former church members to associate with him. We all recognize that our friendships will bring benefits – that is how community works. Anyone who has ever had to suffer the loss of a friendship understands that there are consequences including the loss of a larger community which may have financial implications.
But the courts are not there for us to cajole others into a relationship with us individually. Wakeling notes that “[m]ost people chose to act with others to better achieve their religious goals. They identify common values the presence of which makes a person a valuable group member.” To ensure that religious values are not curtailed by state actions, religious bodies must have the ability to select their members and religious leaders because, noted the Justice, the welfare of the religious association depends upon that ability.
Fourth, courts need to stick to their own area of expertise – the law. They do not have any ability to decipher the unique challenges and nuances faced by the religious community that made the decisions concerning membership. In order for the court to be competent to decide the issue of church membership it must fully understand the history, theology, and social realities of the Jehovah’s Witnesses faith community. To decide otherwise the judge would be imposing his or her own particular bias on the community’s decision. Thus, given the multitude of religious communities in Canada the historical hesitance for a court to become entangled in religious disputes holds much wisdom. Rejecting such societal wisdom is fraught with danger.
The place of religion
This case further causes us to be concerned about the place of religion in Canadian society. The secular influence of our elites is pervasive. Religion is continually seen as something that is foreign. In many ways it is. The secular mind has a real difficulty in trying to understand the religious prohibitions on various lifestyle choices and ways of living. Consider for example, the September 12, 2016 trip of Prime Minister Justin Trudeau to an Ottawa Muslim mosque. The media suggested that Trudeau’s presence in the mosque, where the men were on the floor in the large auditorium but the women were relegated to the balcony, showed Trudeau’s hypocrisy in light of his claim to be an ardent feminist.
However, Trudeau expressed the view that Canada’s strength lies in the fact that there is a huge diversity of communities that are to be respected. “This is an opportunity for us to come together to reflect on what makes Canada extraordinary as a country,” Trudeau explained. “We are a place that has figured out that diversity can be a source of strength not just a source of weakness. And as I look at this beautiful room with the sisters upstairs, everyone here – the diversity that we have just within this mosque, within the Islamic community, within the Muslim community in Canada, the diversity across our country, as we all know can and must be an opportunity for us to grow and to challenge ourselves to improve and create a stronger more peaceful society.”
“But the Canada we live in today didn’t happen by accident and it won’t continue without effort,” Trudeau insisted. It is only as we pull together, listen to each other, respect each other are we able to “build the kind of world that we all dream of.”
Religious communities have maintained peculiar practices and beliefs for thousands of years. Our modern secularity may consider them obsolete, anachronistic, politically incorrect, misogynist, or just plain wrong. However, the freedoms we enjoy today came, in no small part, because of the struggles over religious freedom. That heritage has given us a great legacy — one which recognized that diversity is not a weakness but a strength. That fundamental freedom has long required the courts not to interfere with the religious decisions of who can and cannot be a member of the religious community.
The Alberta Court of Appeal has willingly stepped into a quagmire with its September 8 decision. We are witnessing, yet again, that we have to relearn the wisdom of our forebearers that there are certain roads we ought not to tread. Court interference in religious communities is one of them.
- Alberta Court of Appeal Steps into the Quagmire of Religious Disputes
- Supreme Court of Canada Decides to Hear The Wall Case: Is A Church Member Entitled To Sue A Congregation Because He Was Disfellowshipped?
- Canadian Council of Christian Charities Granted Intervener Status in Wall Case
- CCCC Makes Oral Argument At Wall Case
- Bussey – National Post Op-Ed: Courts have no business reviewing religious decisions
- Bridge City News Interviews Bussey on the Wall Case
- Supreme Court of Canada: Churches Free to Determine Membership Requirements and Disciplinary Process Without Judicial Review
- Bussey’s Commentary on Wall Decision Recognizing The Freedom of Religious Communities To Make Decisions on Membership & Internal Rules