CLF Files Intervener Factum in SCC Religious Autonomy Appeal

The fundamental freedom of religious groups to determine their own membership, free of State interference, [is] necessary to protect the autonomy of believers, the proper functioning of religious institutions, and even democracy itself. It should be not be undermined by expanding courts’ jurisdiction beyond their limited role currently permitted by Canadian law.
— CLF Factum, para. 32, filed October 5, 2017

CLF has filed its written submissions with the Supreme Court of Canada in Judicial Committee of the Highwood Congregation of Jehovah's Witnesses et al v Randy Wall. CLF's oral arguments will be heard during the appeal on November 2, 2017.

OTTAWA, ON - Christian Legal Fellowship ("CLF") has filed its Factum with the Supreme Court of Canada, urging the Court to protect religious communities against State interference, particularly in the context of membership decisions and self-definition.

The outcome of this appeal is a significant one; it involves consideration of fundamental questions such as: “Are internal membership decisions of churches justiciable?” And, “May courts have a say in who a religious community admits or expels, or who one must worship with?”

A precedent setting case

Until now, Canadian courts have generally refused to interfere with the internal membership decisions of religious communities. Court jurisdiction in such instances has been limited to matters engaging civil or property law rights, and even then, only to ensure that organizations follow their internal rules, with regard to the principles of natural justice.

As CLF’s Factum explains: “To go beyond this — for example, by reconsidering the merits of the decision or questioning the propriety of certain spiritual procedural requirements — would be to unjustifiably interfere with the autonomy of religious communities and violate the principle of state neutrality.” (para 3)

The decisions under appeal in Wall, however, represent something of a departure from this traditional approach. The Wall appeal therefore raises questions about the scope of a secular court’s jurisdiction over the internal decisions of a voluntary religious organization, and particularly, the extent to which the Charter guarantees of freedom of religion and freedom of association protect against State interference with a religious community’s membership decisions. This issue has not been definitively addressed by the Supreme Court of Canada.

CLF’s unique submissions having Special Consultative Status with the United Nations

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 highlights these international authorities, including the International Covenant on Civil and Political Rights and Universal Declaration of Human Rights which “recognize the communal character of religion and support the extension of constitutional protection to the organizations through which congregants worship and teach their faith.” (para 8)

CLF’s Factum states:

"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 explains 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.

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.


The appeal involves 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 customarily 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 Court of Appeal 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: "Fundamental constitutional principles give the members of the Highwood Congregation the right to determine their coreligionists." Justice Wakeling observed:

"Without the freedom to associate with coreligionists, an individual's religious freedom may be impaired. Most people choose 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 individuals' religious values are not abridged by state acts that compromise the capacity of religious associations to independently select its members and religious leaders the state must allow religious associations to make these essential decisions upon which the welfare of the religious association depends." (in dissent at para 18, footnotes removed)

The Highwood Congregation was subsequently granted leave to appeal to the Supreme Court. In addition to CLF, 8 other groups have been granted intervener standing, 5 of which are represented by CLF members.

 The appeal will be heard by the Supreme Court on November 2.

 CLF’s Factum can be read here.