Christian Legal Fellowship at the Supreme Court of Canada:
A Summary of CLF’s Submissions in Aga
By Garifalia Milousis, Articling Student, CLF*
Christian Legal Fellowship (CLF) had the incredible opportunity to intervene before the Supreme Court of Canada in the recent case of Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral, et al v Aga, et al [Aga]. The Aga case touches on important issues surrounding the role of secular courts in religious disputes. CLF was represented by our in-house legal team: Derek Ross, Sarah Mix-Ross, and Benjamin Ferland. The hearing took place before the Supreme Court on December 9, via video conference. Derek Ross presented oral submissions on behalf of CLF, joining other interveners across the country in encouraging the Court to respect the autonomy of religious groups, maintain clear boundaries around justiciability, and uphold the principle of judicial restraint outlined in the Highwood Congregation of Jehovah’s Witnesses v Wall [Wall] decision.[1]
The Aga litigation arose after a group of parishioners were removed from church membership, which was allegedly related to an ongoing theological dispute within the church. The parishioners sought a court order reversing the church’s decision, insisting that the church leadership had failed to properly adhere to internal church policies during the suspension process. Their claim was dismissed by the lower court on the grounds that the lack of property or other legal right meant that there was no genuine issue for trail. However, the Ontario Court of Appeal reversed the motion judge’s decision, holding that, because of the parishioners’ monetary contributions and the church’s ecclesiastical “bylaws”, there was an enforceable contract between the parties, rendering the issue justiciable before Ontario courts. This decision seemed to directly contradict the Supreme Court’s decision in Wall, where the Court found that church membership decisions could only be reviewed in narrow circumstances: namely, when the decision involves an underlying legal right, such as a property or contractual right, and does not require the court to adjudicate questions of theology. The Ontario Court of Appeal’s decision in Aga raised serious concerns for a diverse range of religious communities, who expressed concern that, without further clarification and nuance from the Supreme Court, the decision could undermine their freedom to associate and manifest their faith according to their own understanding and interpretation of their religion.
In his oral submissions, CLF’s Derek Ross clearly framed the issue before the Court by honing in on this question: why, as a matter of legal principle, should courts exercise restraint in religious disputes where no legal rights are engaged? CLF emphasized that Canadian courts have long exercised judicial restraint in religious disputes for many good reasons, including ongoing concerns about the courts’ limited capacity, expertise, and legitimacy in relation to matters of religion. Furthermore, the justiciability of a matter requires consideration of not only a court’s ability to hear a dispute, but also the constitutional appropriateness of doing so. As the Supreme Court so clearly articulated in Canada (Auditor General) v Canada (Minister of Energy, Mines and Resources): “An inquiry into justiciability is, first and foremost, a normative inquiry into the appropriateness as a matter of constitutional judicial policy of the courts deciding a given issue or, instead, deferring to other decision-making institutions of the polity.”[2]
CLF submitted that, even if a civil court had the practical capacity and expertise to resolve religious disputes, it would still be inappropriate to do so where no legal interest is engaged. This is supported by three core constitutional principles. First, the constitutional separation of powers prescribes the court’s role as primarily a legal—not a moral or religious—adjudicator. This principle was reflected in the Amselem decision, where the Supreme Court was quite clear that “a court is not qualified to rule on the validity or veracity of any given religious practice or belief, or to choose among various interpretations of belief.”[3] Justiciability is a doctrine “founded upon a concern with the appropriate role of the courts as the forum for the resolution of different types of disputes”.[4] Moreover, an issue is generally “non-justiciable if it involves ‘moral and political considerations which it is not within the province of the courts to assess’”.[5] A court must be satisfied that a matter “has a sufficient legal component to warrant the intervention of the judicial branch.”[6]
CLF pointed out that courts can adjudicate cases with a religious element only if those cases have a substantive legalinterest in dispute, not merely a religious interest. In this case, CLF submitted that the dispute fell well outside of the purview of the courts, since it dealt with the matter of religious membership and the enforcement of the internal policies of a voluntary religious association. As Derek Ross stated: “It’s a simple point, but, under our Constitution, the judicial branch consists of courts of law, not courts of religion. Section 96 courts are not ecclesiastical courts.”
Second, the state has a constitutional duty of religious neutrality, which generally precludes interference in purely religious affairs. Like the separation of powers, this doctrine not only prescribes limits, but also protects the court’s independence and legitimizes its function as an impartial adjudicator.
CLF’s third and final submission concerned religious freedom, from which flows the doctrine of religious neutrality. The freedoms of religion and association are always relevant considerations in developing common law doctrines and remedies. However, there is not an abundance of domestic jurisprudence on the relationship between freedom of religion, freedom of association, and the constitutional duty of state neutrality. This is where CLF drew helpful guidance from international jurisprudence, such as that of the European Court of Human Rights (ECtHR). In Svyato-Mykhaylivska Parafiya v Ukraine, a case that involved an internal dispute regarding membership, the ECtHR wrote:
The Court recalls that while religious freedom is primarily a matter of individual conscience, it also implies, inter alia, freedom to “manifest [one's] religion” alone and in private or in community with others, in public and within the circle of those whose faith one shares. Since religious communities traditionally exist in the form of organised structures, Article 9 [freedom of religion] must be interpreted in the light of Article 11 [freedom of association] of the Convention, which safeguards associative life against unjustified State interference.
Seen from this perspective, the right of believers to freedom of religion, which includes the right to manifest one's religion in community with others, encompasses the expectation that believers will be allowed to associate freely, without arbitrary State intervention. The State's duty of neutrality and impartiality, as defined in the Court's case-law, is incompatible with any power on the State's part to assess the legitimacy of religious beliefs.[7]
This principle of religious group autonomy generally precludes state intervention in internal disputes. As the ECtHR has identified, “[t]he internal structure of a religious organisation and the regulations governing its membership must be seen as a means by which such organisations are able to express their beliefs and maintain their religious traditions.”[8] This doctrine also means that state actors must not impose secular conceptions of procedures or membership criteria on voluntary religious groups. Religious associations must be free to “determine at their own discretion the manner in which new members are admitted and existing members excluded.”[9] To hold otherwise would be to undermine the freedoms of religion and association of voluntary religious groups by requiring them to associate (or not associate) with individuals at the direction of the state.
As was established domestically in Amselem, the ECtHR has clearly stated that “the right to freedom of religion excludes any discretion on the part of the State to determine whether the means used to express religious beliefs are legitimate”.[10] Where religious autonomy is seen to compete with other interests, the solution is not to coerce a religious community to accept religious practices or members against their will. ECtHR jurisprudence has established that, “in the event of a disagreement over matters of doctrine or organisation between a religious community and one of its members, the individual’s freedom of religion is exercised through his freedom to leave the community”.[11] Therefore, “the State should accept the right of [religious] communities to react, in accordance with their own rules and interests, to any dissident movements emerging within them that might pose a threat to their cohesion, image or unity.”[12] In short, it is up to voluntary religious groups themselves to autonomously decide who is permitted to join their association as a member and how they regulate membership internally, which includes membership denial and expulsion.
In written submissions, CLF was careful to explain that recognizing the religious group autonomy of religious association does not mean that religious groups enjoy legal immunity. Far from it. There are other legal mechanisms to ensure that groups comply with their incorporating statutes or terms of a trust. But construing church membership itself as an enforceable contract would take our law in a direction that is both unnecessary and inappropriate. While the court has proper jurisdiction in legal matters, including those within religious communities, it cannot be enlisted to enforce purely religious goals or commitments. As CLF concluded, even where a civil court has the practical capacity and expertise to resolve religious disputes, it would still be inappropriate to do so.
The Supreme Court is reserving its decision, which is expected to be released sometime next year.
Read CLF’s written submissions here, and watch CLF’s oral submissions at the 1:16:37 time mark here.
Garifalia Milousis, B.Soc.Sc., J.D., is honoured to be completing her articling position with the Christian Legal Fellowship.
Garifalia graduated summa cum laude from the University of Ottawa with a Bachelor of Social Science and Joint Honours Specialization in Women's Studies and Political Science, and she returned to the University of Ottawa to complete a Juris Doctor, graduating cum laude with a Social Justice specialization. While completing her Juris Doctor, Garifalia was on the leadership team of no less than six clubs, including the local student chapters of Christian Legal Fellowship, International Justice Mission, and the Canadian Abolitionist Students Association.
In her spare time, Garifalia volunteered as a student representative on the University of Ottawa's Standing Committee on the Prevention of Sexual Violence, and she participated in the 2019 Daughters of the Vote initiative. Garifalia continues to volunteer as the Chair of the Ottawa Coalition to End Human Trafficking.
Garifalia supported CLF’s legal team in the Aga intervention.
[1] Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v Wall, 2018 SCC 26, [2018] 1 SCR 750.
[2] Canada (Auditor General) v Canada (Minister of Energy, Mines and Resources),[1989] 2 SCR 49 at 90-91 [Canada v Canada].
[3] Syndicat Northcrest v Amselem, 2004 SCC 47 at para 51, [2004] 2 SCR 551.
[4] Canada v Canada, supra at 90.
[5] Canada v Canada, supra at 90.
[6] Reference Re Canada Assistance Plan (B.C.), [1991] 2 SCR 525 at 545.
[7] Svyato-Mykhaylivksa Parafiya v Ukraine at paras 112-113 [Svyato-Mykhaylivksa] [emphasis added].
[8] Svyato-Mykhaylivksa, supra at para 150.
[9] Svyato-Mykhaylivksa, supra at para 150.
[10] Svyato-Mykhaylivksa, supra at para 150.
[11] Sindicatul “Păstorul cel Bun” v Romania at para 137 [Sindicatul].
[12] Sindicatul, supra at para 165.