A perennial criticism of the Canadian judiciary is its excessive activism. Many think that the courts have helped fashion Canada into a nanny state and the Supreme Court of Canada is the most interventionist of the nanny courts.
The recent case of Highwood Congregation of Jehovah’s Witnesses v Wall deals with whether a court should intervene to settle a grievance between a religious body and its member. This time, the Supreme Court stayed on the sidelines.
Secular courts have no jurisdiction in the internal operations of religious organizations. Judicial review is only available to challenge public decision-makers acting under legislation.Randy Wall was a member of the Jehovah’s Witnesses for 34 years. He was shattered that the church had expelled his 15-year-old daughter, and that she was evicted from the family home. He admitted to being drunk twice while under this family stress, and during one of those times he verbally abused his wife. He was also “disfellowshipped” as a result of these behaviours. As in the case of his daughter, the church ordered his family and Witness members to shun him. He feared this would have a serious negative impact on his social life and livelihood as a realtor.
Wall’s appeals through three church levels were all unsuccessful. His expulsion was upheld.
Private Activities and Disputes
Consider, for example, if one forms a singing club in the neighbourhood. Disagreements about the list of songs or their order of performance at the upcoming Christmas show are not legal matters and should not be determined by a judge. Likewise, a child should not be able to sue a parent to ensure her favourite foods are packed every day in her school lunch. Private actors are not subject to judicial review. This is especially true in matters of religion. If people voluntarily join religious groups and agree to beliefs and principles by which they will be governed, it is not open to one of the members to run off to court to get a change in the rules.
This “jurisdiction” is the challenge that faced Wall as he tried to obtain a legal remedy overturning the church’s decision. He could argue that the process used by the church was unfair or that the church denied him his property and civil rights. However, the church would say it was a private, religious organization and the courts had no business in its affairs any more than a court could tell Scout troops where to meet. Secular courts have no jurisdiction in the internal operations of religious organizations. Judicial review is only available to challenge public decision-makers acting under legislation.
The “justiciability” of this dispute was also in doubt. Applicants to court must have a legal interest. There is no Charter of Rights claim or contract between the Jehovah Witnesses and Mr.Wall. The church was merely a voluntary association, not even a legal entity. Should not the church and its members have the legal right to disassociate from Wall?
Having exhausted all recourse in the church internally, Wall went to court, but the Supreme Court of Canada unanimously dismissed his application for judicial review of his expulsion. The Court said judicial review is reserved for public bodies (not churches) to ensure they act within the law. Courts can quash illegal decisions as a check on state decision-making. The church is a private actor with no statutory authority.
Further, the Court concluded there is no underlying free-standing right to natural justice in private associations and in private matters. There was no contract between Wall and the church. Mere membership in a congregation does not establish a legally enforceable contract. His loss of church clientele from expulsion was not a breach of Wall’s legal entitlements or property rights.
What about justiciability – whether Wall’s claim presents an issue fit to be determined by the courts? The Supreme Court said that depends on each case:
“the court should ask whether it has the institutional capacity and legitimacy to adjudicate the matter…The present issue is of a religious nature that pertains to fairness and process of the church’s suspension of Wall. Historically, courts lack legitimacy and capacity to determine such issues.”
The Supreme Court of Canada left Wall with no remedy but it left the rest of us considerable wiggle room on justiciability. Ultimately, these are fact-driven cases captive to human instincts and sensibilities.