On November 2, 2017, the Supreme Court of Canada heard the appeal of Judicial Committee of the Highwood Congregation of Jehovah's Witnesses et al v. Wall. The case 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.
Christian Legal Fellowship intervened to provide submissions on Canada’s international human rights obligations and the relevant principles of international law. CLF was represented by lawyers Derek Ross and Deina Warren, and CLF’s written factum can be found here. Below are the “podium notes” which formed the basis for the oral submissions presented to the Supreme Court by CLF’s Executive Director and General Counsel Derek Ross. A webcast of the entire proceeding can be viewed online. The Court has reserved its decision.
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As an NGO with special consultative status with the United Nations, Christian Legal Fellowship wishes to provide an international perspective on the issues before you today.
To that end, I plan to address two points:
First, the right to autonomy of religious communities is a fundamental principle recognized in international law. Canada has agreed to uphold this principle in its international commitments. The present case demonstrates a need and presents an opportunity to expressly affirm religious autonomy in Canadian jurisprudence.
Second, as international case law demonstrates, in the event of an internal religious disagreement, the solution is not to coerce a religious community to accept religious practices, procedures, beliefs, or members against its will.
With respect to the first point, as you have heard this morning, a central consideration in this case is the freedom of religious communities to decide and administer their internal religious affairs without state interference.
There is strong international support for this freedom, which has traditionally been referred to as “church autonomy” – more recently international courts have described it as the “autonomy of religious communities”, or simply “religious autonomy”.
International jurisprudence recognizes religious autonomy as a key component of freedom of religion and association, and as a requirement of the duty of state neutrality – it is therefore understood to be a core characteristic of a free and democratic society.
This principle is supported in Canadian jurisprudence, but as Justice Wakeling noted, this Court has not definitively addressed the question of whether the Charter protects the internal membership decisions of religious communities against state interference. That is a central question in this case.
Canada has committed to uphold a number of international treaties that affirm this principle. For example, the Vienna Concluding Document guarantees the autonomy of religious communities to organize themselves according to their own structure [Article 16].
The Universal Declaration of Human Rights and the International Covenant of Civil and Political Rights also both protect freedom to practice religion in community with others. These have been interpreted by UN bodies to protect the internal workings and decisions of religious communities from state interference.
Further guidance can be drawn from the European Court of Human Rights. That Court has interpreted provisions in the European Convention virtually identical to these UN instruments. It has held that the principles of state neutrality and religious autonomy prohibit state actors from interfering with membership decisions or criteria of religious communities [Sindicatul “Păstorul cel Bun” v. Romania at para 137; Svyato-Mykhaylivska Parafiya v Ukraine at paras 146, 150].
It has also emphasized that the autonomous existence of religious communities is indispensable for pluralism in a democratic society and thus at the very heart of freedom of religion [Hasan and Chaush v. Bulgaria at para 62; Metropolitan Church of Bessarabia and Others v. Moldova at para 118]
This brings me to our second point: religious autonomy may sometimes be seen as competing with other claims and interests. But the solution is not to coerce a religious community to accept religious practices or members against their will.
Such coercion harms not just the religious community, but according to the European Court, interferes with the proper functioning of democracy itself [Holy Synod of the Bulgarian Orthodox Church at paras 119-120].
The overwhelming majority of cases before the European Court have upheld religious autonomy against competing claims.
In Svyato-Mykhaylivska Parafiya v Ukraine, it rejected arguments that an individual’s right to manifest his religion could supersede a church’s membership requirements [para. 52]. Instead, the individual’s freedom of religion is exercised through his freedom to leave the community [Sindicatul “Păstorul cel Bun” v. Romania at para 137].
In Sindicatul “Păstorul cel Bun” v. Romania the Court held that individual freedoms do not give rise to a “right to dissent” within religious organizations [para. 137]. Churches must be free to respond in accordance with their own rules and interests to internal disagreements that “might pose a threat to their cohesion, image or unity.” It is “not the task of the national authorities to act as the arbiter between religious communities and the various dissident factions that exist or may emerge within them” [para 165].
In Bessarabia, the Court recognized that forcing believers to worship with those outside of their community is a fundamental rights violation, even if the state thinks that doing so is necessary to ensure peaceful unity [para. 117]. The law cannot force unity in a divided religious community. Such action violates the state’s duty of neutrality and impartiality [para. 123].
There are compelling underlying reasons to uphold religious autonomy, even when it is seen as competing with other interests – these are outlined further in our factum.
The autonomy of religious communities is necessary for the realization of individual freedom and personal autonomy of their members. Without the infrastructure provided by religious organizations, a person cannot pursue a religious way of life; without a religious group’s ability to self-define, the option of a religious life is meaningless. Harm to religious organizations therefore results in harm to personal autonomy.
Autonomous religious communities are necessary for the development and transmitting of religious beliefs between generations, a right which Canada has also committed to uphold in the ICCPR and other international treaties.
As a social good, autonomous religious communities constitute a necessary building block for genuine pluralism, freedom of thought, and peaceful co-existence in a free and democratic society.
To conclude: jurisprudence rooted in Canada’s international commitments and similarly worded instruments reflect an established pattern that jealously guards religious autonomy, particularly in the context of membership decisions and self-definition.
This is a basic standard agreed to by a community of states – including Canada – and it should be the minimum standard of protection afforded by the Charter.
Subject to any questions, those are CLF’s submissions.
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For more background information on this case, read our blog post here.