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The Wall of Separation

The Supreme Court of Canada released its judgement in the Wall appeal last week. It’s a victory for clarity in what had become quite a confused case.  The Court, overturning both courts below, ruled that judges do not have authority to review the decision of an unincorporated religious body to expel one of its members.

Confusion at the lower courts

Randy Wall, the applicant in Wall, was disfellowshipped from the Highwood Congregation of Jehovah’s Witnesses for lack of repentance for bad behaviour. Wall was a real estate agent. About half his clients were Witnesses, but after he was disfellowshipped they refused to do business with him. Wall applied for judicial review of the Congregation’s decision to disfellowship him.

The preliminary question of the court’s jurisdiction was raised. The chambers judge, Justice Wilson, decided the court had jurisdiction for two reasons. First, the Congregation’s decision had an economic impact on Mr. Wall. Second, Wall alleged that the Congregation’s procedure for disfellowshipping him did not satisfy the requirements of natural justice. The Congregation appealed.

The majority at the Alberta Court of Appeal agreed that the courts have jurisdiction. Since judicial review is a discretionary remedy, the majority said, the standard of review is “one of deference unless the conclusion is unreasonable” – i.e. reasonableness. Given the seriousness of what was at stake for Mr. Wall, the ABCA majority concluded that Justice Wilson’s finding on jurisdiction was reasonable and returned the matter to the Court of Queen’s Bench for a hearing on the merits. The Congregation appealed to the SCC.

The Supreme Court doing what appellate courts should do

Justice Rowe, writing for a unanimous SCC, gave three reasons for overturning the Court of Appeal majority.

First, churches are not state actors. Their procedures and decisions are not subject to supervision by civil judges, unlike public bodies such as human rights tribunals that are. Churches and other religious organizations and other private associations are independent of the state.

Second, Justice Rowe said that people do not have a “freestanding right to procedural fairness”.  That is, you can’t take your church or chess club or anyone to court, or anyone for that matter, simply because you were treated unfairly. You must come to court with a recognized legal claim, such as a property right or contractual right. The Court, thankfully is telling Canadian judges not to take on cases only because they think something unfair happened to someone.

Third, Justice Rowe noted that even if courts could claim a kind of supervisory authority over an unincorporated religious body – which they cannot – it would still be inappropriate for a court to decide the issues raised by this case, which are spiritual and ecclesiastical issues. “The Court should not decide matters of religious dogma”, he reiterated. The Respondent (Wall) had tried to argue that the court could review whether the procedure the Congregation followed was fair, but that procedure was religious. “The courts lack the legitimacy and institutional capacity to determine whether the steps outlined in [The Gospel According to] Matthew have been followed,” Justice Rowe wrote.

And despite the lower courts citing freedom of religion and freedom of association under the Charter in their judgements, and the parties and interveners arguing them at the SCC, the SCC declined to apply the Charter. This case was really a dispute between private parties, Justice Rowe explained, and longstanding principles of jurisdiction and justiciability sufficed to resolve it.

Last year, I wrote an article for this website explaining all the confusion in this case at the lower courts.

In 40 concise paragraphs, Justice Rowe neatly cleared things up. He should be applauded.

The rule of law argument at the SCC

The Respondent in Wall argued that courts should claim jurisdiction to review the decisions of a group such as the Highwood Congregation so as to preserve the rule of law. That is, courts as experts in procedural fairness should ensure people are treated fairly by a religious body that has the power to significantly impact their lives by its decisions.

Though Justice Rowe (probably wisely) avoided getting into historical commentary, this argument is somewhat ironic in light of the historical development of the idea of the rule of law.

The great legal historian Harold Berman describes the development of the state ruled by law or “law state” as emerging out of the historical struggle between secular and ecclesiastical authorities. Rule of law meant rule by law (that the authorities would enact laws and establish legal systems), rule under law (that the authorities would be bound by the laws they enacted), and that both secular and ecclesiastical authorities would be limited in their authority by the laws of other jurisdictions.

“If the church was to have inviolable legal rights, the state had to accept those rights as a lawful limitation upon its own supremacy. Similarly, the rights of the state constituted a lawful limitation upon the supremacy of the church,” Berman writes. Today, that principle applies more broadly to other associations, not just “the Church”.

As Berman writes, “Perhaps the most distinctive characteristic of the Western Legal tradition is the coexistence and competition within the same community of diverse jurisdictions and diverse legal systems. […] Legal pluralism originated in the differentiation of the ecclesiastical polity from secular polities.”

Mr. Wall’s counsel – no doubt doing his best to come up with innovative arguments, as he should – tried to turn the rule of law into a reason for courts to intervene where someone is impacted by alleged unfairness, even in the absence of a civil rights claim. But the rule of law does not require courts to ensure individuals suffer no unremedied unfairness in any sphere of life, but rather that public power is authorized by intelligible, accessible laws.

The non-exercise of state power often poses no threat to the rule of law, but its arbitrary or unlawful exercise always does.

The Supreme Court’s decision in Wall provides a jurisprudential safeguard against the arbitrary exercise of judicial power. It is clear about the limits of the courts’ jurisdiction and justiciability. It should also stand as a reminder to all judges of the virtue of judicial humility.

 

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