Is Religious Autonomy in Canada in Danger?

by Jeffrey A.L. Kriwetz

Much has been written lately about the decline of Christianity as an influence in modern society. For the most part, that decline in influence has been brought about, not by a direct attack on Christian institutions themselves, but by indirect means through the implementation of various social policies, the enactment of legislation and the effect of various court decisions. There are many examples of this—Sunday shopping laws, the requirements of the summer jobs program, abortion, assisted suicide, and so on. In each of these cases, Christians themselves and their institutions were still allowed to maintain their beliefs on the particular subject and their institutions were also allowed to implement and maintain internal rules and doctrines which are inconsistent with the “official” view of the state, and the state has not directly interfered with the Church’s right to do so.

Much has been written lately about the decline of Christianity as an influence in modern society. For the most part, that decline in influence has been brought about, not by a direct attack on Christian institutions themselves, but by indirect means through the implementation of various social policies, the enactment of legislation and the effect of various court decisions.

A recent court ruling, however, seems to have opened the door to such state interference and that is very serious and disturbing.

The law on this subject seemed to have been settled in the 2018 Supreme Court of Canada (SCC) decision in Wall v. Judicial Committee of the Highwood Congregation of Jehovah’s Witnesses. Briefly, in that case, a member of a congregation was “disfellowshipped” after being found by an internal judicial committee of the organization to have engaged in behaviour contrary to the beliefs of the organization. The outcast member then sought to have the judicial committee’s decision reviewed by the court. The case was ultimately heard by the SCC who, quite properly and correctly, concluded that the Court had no jurisdiction to review the internal decisions of a religious organization.

The SCC’s ruling was based on three main points. First, judicial review only applied to public entities and the judicial committee of the organization was not a public entity. Second, there is no free-standing right to procedural fairness unless there was an underlying enforceable legal right, such as a contract. Simply put, the complainant did not have any legal basis to sue the organization. Finally, and perhaps most importantly, the court stated that this was not an issue that was appropriate for the court to decide upon. In this regard, the court stated:

That being said, courts should not decide matters of religious dogma. As this Court noted in Syndicat Northcrest v. Amselem, 2004 SCC 47, [2004] 2 S.C.R. 551, at para. 50: “Secular judicial determinations of theological or religious disputes, or of contentious matters of religious doctrine, unjustifiably entangle the court in the affairs of religion.”  The courts have neither legitimacy nor institutional capacity to deal with such issues, and have repeatedly declined to consider them: see Demiris v. Hellenic Community of Vancouver, 2000 BCSC 733, at para. 33 (CanLII); Amselem, at paras. 49-51.

With that decision, the matter seemed settled, but then recently the Court of Appeal for Ontario released its decision in Aga v. Ethiopian Orthodox Tewahedo Church of Canada. The issue in Aga also involved the expulsion of members of a congregation. They, too, brought a claim against the Congregation and argued that the Congregation’s decision should be reviewed by the court to determine whether or not they were afforded procedural fairness.

Church bodies and individual congregations are not commercial entities and an attempt to analyze them in the same way as one would a commercial enterprise is simply incorrect. Their governance, including the determination of who may or may not be a member, is fundamentally based on religious doctrine. If the state is now inserting itself in such decisions, then the autonomy of our religious institutions is truly in danger.

The Congregation moved for an order to have the claim dismissed summarily. The judge who heard the motion, relied on Wall and dismissed the lawsuit. The motions judge also specifically ruled that there was no evidence of a contract between the Congregation and the expelled members and, as such, they had no enforceable legal right. The expelled members appealed the decision and the appeal court overturned the motions judge’s order. In so doing, the appeal court stated that the Congregation’s constitution and by-laws relating to congregational membership could create a contract between the members and the Congregation. Furthermore, the appeal court stated that the expelled members “entered into a mutual agreement to be part of the Congregation and abide by the governing rules, whether or not they were specifically aware of the terms.” If there is such a contract, then the Church must abide by its terms or be subject to legal action if someone alleges that it has not done so.

The most concerning aspect of the Aga decision is that it appears to fly in the face of the general principle confirmed by the SCC that the “courts should not decide matters of religious dogma.”

At first glance, it seems that facts in Aga are distinguishable from Wall, but on closer review, the differences are not significant. Furthermore, the appeal court’s analysis about the existence of a contract between the members and the Congregation is very questionable.

The Congregation in Aga is seeking leave to further appeal the decision to the SCC and that decision is pending.

The most concerning aspect of the Aga decision is that it appears to fly in the face of the general principle confirmed by the SCC that the “courts should not decide matters of religious dogma.” Church bodies and individual congregations are not commercial entities and an attempt to analyze them in the same way as one would a commercial enterprise is simply incorrect. Their governance, including the determination of who may or may not be a member, is fundamentally based on religious doctrine. If the state is now inserting itself in such decisions, then the autonomy of our religious institutions is truly in danger.

Let us pray that the SCC grants leave to hear the appeal and that it goes on to affirm the principles regarding religious freedom.
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Jeffrey A.L. Kriwetz (jkriwetz@garfinkle.com) is a partner in Garfinkle Biderman Barristers and Solicitors and a member of Lutheran Church–Canada’s Commission on Adjudication. Please note that the views expressed in this article are those of the writer and have been provided for information purposes only. Nothing in this article should be relied on as specific legal advice in any particular case. For such advice, please contact the writer directly.

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