Release: Resounding victory for freedom of association of private bodies from the Supreme Court of Canada

Release: Resounding victory for freedom of association of private bodies from the Supreme Court of Canada

The Supreme Court of Canada (SCC) today decided in Highwood Congregation of Jehovah’s Witnesses v. Wall that courts do not have the jurisdiction to review the membership and internal disciplinary decisions of private voluntary associations, including religious congregations. This decision is important because it shields civil society organizations from second-guessing by the state in the form of judicial review of their internal decisions.

The CCF filed an affidavit with the SCC in 2016 in support of the Highwood Congregation and then intervened on the appeal in 2017 arguing three things:

the freedom to refrain from association is integral to the freedom of association protected by section 2 of the Charter;
the membership decisions of private voluntary associations are not subject to judicial review, and expanding the courts’ jurisdiction would undermine the freedom of association; and
the membership decisions of private voluntary associations are not reviewable by courts, as there is no legal right to be part of a voluntary association and the courts cannot compel parties to associate.

The Court held, among other things, that “mere membership in a religious organization … should remain free from court intervention. Indeed, there is no free standing right to procedural fairness with respect to decisions taken by voluntary associations” and “[i]n the end, religious groups are free to determine their own membership and rules; courts will not intervene in such matters save where it is necessary to resolve an underlying legal dispute.”


CCF Executive Director, Howard Anglin, said of today’s SCC decision:

“The 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. When Canadians choose to form private associations, their internal workings and membership are not a matter for the state. As the Court held today, where no related legal rights are involved, the membership and disciplinary decisions of private bodies are no business of the state.”

CCF Staff Lawyer, Derek From, said:

The Supreme Court’s decision prevented an unprecedented intrustion into the private affairs of civil society organizations. If the Alberta Court of Appeal’s decision had been allowed to stand, it would have swept 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. This would have imposed cumbersome and costly new burdens on voluntary organizations to engage legal counsel to oversee their internal processes. It would also have taxed an already-strained court system, making chambers the final arbiter of previously private disputes and recriminations.”

What are the facts of the case?

Randy Wall was expelled, or “disfellowshipped”, from Calgary’s Highwood Congregation of Jehovah’s Witnesses in April, 2014, for alleged drunkenness, verbal abuse of his wife and insufficient repentance. Having exhausted appeals under the church’s processes, Wall sued at the Alberta Court of Queen’s Bench (ABQB) claiming his disfellowshipping was procedurally unfair. The church argued in response that Canadian courts have never had jurisdiction to second-guess the membership decisions of purely private social groups, like their religious body.

Yet on April 16, 2015, the ABQB parted from existing precedent and ruled it did have requisite jurisdiction to hear the case. Under the Constitution of Canada, judicial review has only been available for the decisions of public bodies, never private voluntary associations. This ruling was appealed, and in a 2-1 split decision released on September 8 2016, the Alberta Court of Appeal (ABCA) upheld the lower court’s jurisdiction. Mr. Justice Tom Wakeling of the ABCA, in a lengthy and powerful dissent, wrote that Canadian courts do not have jurisdiction to hear this case because,

[Randy] Wall does not have a right to belong to the Highwood Congregation if its members do not want to associate with him. His freedom of association interest does not compel other Jehovah’s Witnesses to interact with him.

Today the SCC agreed with Justice Wakeling’s dissent and reversed the ruling of the ABQB finding.
The Canadian Constitution Foundation (“Freedom’s Defence Team”) is a registered charity, independent and non-partisan, whose mission is to defend the constitutional freedoms of Canadians through education, communication and litigation.