The appeal for Judicial Committee of the Highwood Congregation of Jehovah's Witnesses et al v Randy Wall will be heard November 2
LONDON, ON - Are internal membership decisions of churches justiciable? May courts have a say in who a religious community admits or expels, or who one must worship with?
These questions are implicated in a case to be heard by the Supreme Court of Canada on November 2. Christian Legal Fellowship, Canada's national association of Christian legal professionals, is seeking leave to intervene as a friend of the court to assist in its understanding of some of the broader implications of this important appeal.
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. A bifurcated proceeding was ordered to first determine whether the court had jurisdiction to hear the appeal. 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 of Queen's Bench had jurisdiction to hear the appeal and returned the matter to the lower court to be heard by another judge. However, in a strongly-worded, extensively footnoted dissent, Justice Wakeling concluded that the internal decisions of private religious bodies such as the Highwood Congregation 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 went on to observe:
"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." (Para 18, footnotes omitted.)
The Highwood Congregation was subsequently granted leave to appeal to the Supreme Court.
CLF's Proposed Intervention
CLF seeks leave to intervene on the question of how Canada's international law obligations inform the scope and nature of freedom of religion, freedom of association, and church autonomy. Drawing from international jurisprudence, CLF will also speak to the implications for all religious communities if courts are entitled to intervene with the internal functions of private, autonomous, voluntary associations.
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 longstanding history of intervening to speak to the relevance and importance of international human rights obligations in interpreting the scope and nature of fundamental rights and freedoms in Canada, including the following cases: Loyola High School v Quebec (Attorney General), 2015 SCC 12; Carter v Canada, 2015 SCC 5; Reference re: Section 293 of the Criminal Code of Canada, 2011 BCSC 1588; and SL v Commission Scolaire Des Chênes, 2012 SCC 7.
If granted leave to intervene, CLF's anticipated arguments, outlined in its Motion Record, include the following:
a. Sections 2(a) and 2(d) of the Charter should be interpreted as recognizing at least the same level of protection as provided by international conventions to which Canada is a party, such as the International Convention on Civil and Political Rights.
b. International decisions interpreting this Convention (and other similarly worded agreements) are relevant to and persuasive in interpreting and applying the Charter protections at issue in this case. Such decisions have established that:
i. Freedom of religion is a right that is exercised not just individually but in community with others; religious communities are therefore a necessary means by which individuals effectively exercise their rights to religious freedom.
ii. Membership in religious organizations is strictly an internal matter. State actors should not renew or interfere with issues such as whether and how members are admitted and/or excluded. Such interference violates the principles of state neutrality and the autonomy of religious communities.
iii. Democratic societies rely on the existence and flourishing of diverse voluntary associations, and a rights violation in such a society can only be justified if it is "necessary". State interference in religious communities' internal affairs undermines and jeopardizes their very existence and therefore cannot be justified. It harms rather than promotes a democratic society.
iv. Within religious organizations, freedom of religion does not guarantee individuals a "right to dissent". 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.
A decision concerning CLF's application for leave to intervene is expected within the coming weeks.