Home News Articles The much-needed separation of church and state

The much-needed separation of church and state

By | Globe and Mail on Jan 25 2017

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Is there any limit to the law’s reach in the Charter era? Does any sphere of private life or civil society remain beyond the sweep of our judiciary’s Sauron-like gaze? What began as a membership dispute in a suburban Calgary church has landed on the steps of the Supreme Court of Canada, and if the court chooses to hear the case (and it should), these questions could make it the most consequential legal decision of the year.

The case, in a nutshell: Randy Wall attended Calgary’s Highwood Congregation of Jehovah’s Witnesses until April, 2014, when he was expelled – “disfellowshipped,” in the church’s discordant term – for alleged drunkenness, verbal abuse of his wife and insufficient repentance. Having exhausted appeals within the church, Mr. Wall sought relief from the Alberta Court of Queen’s Bench, claiming that his disfellowshipping was not consistent with the principles of fundamental justice. The church responded that Canadian courts have no jurisdiction to second-guess the membership decisions of a private religious body. By a 2-1 decision, a panel of the Alberta Court of Appeal disagreed.

In 1992, the Supreme Court of Canada held that courts may review church membership decisions when concomitant disputes over property rights or other civil rights turned on the fact of membership. While acknowledging that previous limitation, following what it described as a developing line of lower-court decisions in Ontario, British Columbia and Alberta, the majority in this case went further. It agreed with Mr. Wall that courts may also review internal decisions of religious bodies when no other rights are at stake if a complainant alleges “there has been a breach of the rules of natural justice or has exhausted the organization’s internal processes.”

Deploying 142 methodical paragraphs and 110 meticulous footnotes, dissenting Justice Thomas Wakeling dismantled the majority opinion. He explained why judges are not empowered to review the internal decisions of purely private actors and that, even if they were, the case does not pose a justiciable question because there is no legal right to church membership. Based on the unusual scope and detail of his dissent, Justice Wakeling appears to have been determined to catch the eye of the Supreme Court of Canada and, perhaps to make the case even more attractive to the justices, to do the heavy lifting of research and analysis for them.

Canadians who value the strength of our civil society should hope the Supreme Court does grant the Highwood Congregation’s application to review the case. The constitutionally guaranteed freedom to associate must include the freedom not to associate, and that right cannot be policed by the courts without an unprecedented intrusion on the privacy and autonomy of Canadians. Where no related legal rights are involved, the internal membership and disciplinary decisions of private bodies are no business of the state.

Civil society is an essential element of liberal democracy, acting both as an outlet for individual flourishing and a buffer from state intrusion into the most intimate aspects of personal and social life. Societies without a robust civil society lack the social habits of free association and co-ordination extending beyond traditional kinship circles that make democratic self-government possible in a pluralistic society.

If the Alberta Court of Appeal’s assumption of judicial omnicompetence is allowed to stand, it will sweep into the courts’ jurisdiction the membership and other internal decisions of all manner of purely private associations – from business and service clubs to amateur sports teams and churches. (Justice Wakeling’s dissent uses the example of bridge clubs.) Not only would this directly violate the Charter rights to freedom of association and religion, it would impose cumbersome and costly new burdens on voluntary organizations to engage legal counsel to oversee their internal processes. It would also tax an already-strained court system, making chambers the final arbiter of previously private disputes and recriminations.

Back in 2002, when Chief Justice Beverley McLachlin opined that the law had “some claim to the whole of human experience,” philosopher Jean Bethke Elshtain retorted that, “surely, where the rule of law in the West is concerned, there is a great deal about which the law is simply silent: the ‘King’s writ’ does not extend to every nook and cranny.” The Highwood Congregation case throws the debate back to the Chief Justice: Just how far does she believe the King’s writ should extend into the internal decisions of private organizations?

Let’s hope that, with the benefit of 15 years’ reflection, the Chief Justice and her colleagues recognize the problems with that totalizing vision, in which no decision is too private and no dispute too slight to escape the robed and magisterial scrutiny of the law. To safeguard our civil society and our democracy, some nooks and crannies must remain free and private.

The CCF filed an affidavit in support of the Highwood Congregation’s application to the Supreme Court of Canada.

(Image by Slices of Light under CC 2.0).

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