The three-week trial in BC Supreme Court involving the Diocese of New Westminster and 22 former members of the Anglican Church of Canada ended on Thursday, June 11. The judge reserved his decision.
The dissidents have sued the diocese to ask Mr. Justice Stephen Kelleher to rule that their congregations should end up with the parish properties. Lay members of the congregations are not being asked to leave.
George Macintosh, QC, lawyer for the diocese, which is the defendant in this case, spent much of his final argument pointing to seven American cases—including a decision that came out on Tuesday from a California appeal court. All awarded property to a diocese rather than a local church.
While there are some differences in the way the two countries approach similar issues, “the analysis the courts in the two countries take is identical,” said Macintosh.
Geoff Cowper, QC, who represented the plaintiffs suing the diocese, sharply disagreed with Macintosh that American decisions should be considered precedent-setting in Canada. Macintosh replied that many of the relevant Canadian judgments do refer to US jurisprudence.
The lawyer for the diocese continued his attack on Cowper’s assertion that the Canadian Church’s “Solemn Declaration” of 1893—found in the Book of Common Prayer (page viii)—sets up an “implied religious purposes trust.” Cowper has argued that this implied trust means that “traditional and orthodox” Anglican doctrine must be followed. He has said their leaders would violate this trust if they accepted a bishop and a Canadian Church that have violated this trust.
If the Solemn Declaration sets up a trust so defined, “Churches would be forced into rigorous conservatism,” Macintosh said. “Adapting their doctrines and practices to changing social realities would bring the risk of schism and dissolution. They would be forced to stick with old practices and old understandings.”
Macintosh said the diocese doesn’t believe there actually is a trust created by the Solemn Declaration. He argued the structures of the diocese and the national Church are sufficient to govern Church affairs.
But even if one conceded the Solemn Declaration created a trust, that trust would be violated only if the diocese or the Anglican Church of Canada ignored very “fundamental doctrines and tenets” of the Church, said Macintosh.
Creating a blessing for homosexual couples hardly speaks to a fundamental issue, Macintosh argued. “The Church remains the same Anglican Church it has always been,” he asserted.
He said he has great respect for members of the four congregations who may sincerely hold the belief that same sex blessings are wrong. “It’s completely with their religious right and freedom to interpret the Bible that way.” However the issue is not fundamental as, for instance, whether Christ is divine.
“The non-sanctity of same-sex relationships is plainly and obviously not fundamental to the Anglican Church of Canada... Anglicanism is a ‘big tent,’ encompassing a wide diversity of beliefs. The issue of whether or not same-sex relationships can be ‘of God’ and so blessed is well within that tent,” Macintosh argued before the judge.
Ludmila Herbst, another lawyer for the defence, was given the task of taking Judge Kelleher through the history of the four parishes whose current congregations voted last year to leave the Canadian Church.
She contended that the four parishes with dissenting congregations and clergy—St. Matthew’s in Abbotsford, and three in Vancouver, St. John’s Shaughnessy, St. Matthias & St. Luke, and the Church of the Good Shepherd—have the diocese and the Anglican Church of Canada “engrained in their fibre.” All the parishes were built before the vast majority of the members of their current congregations joined the parishes.
She spoke about the bequest of Daphne Chun, a medical doctor in Hong Kong. Dr Chun died in 1992 and left her Hong Kong apartment and parking space to “the building fund of the Church of the Good Shepherd.” The parish sold the properties in 1998 for about $1.6 million, which has grown to over $2.2 million.
On Wednesday, Stanley Martin, a lawyer for the plaintiff, argued that Dr. Chun desired to leave the property to the people she knew at Good Shepherd, and the court should order that the congregation—most if not all of whose members have left the diocese and the Anglican Church of Canada—should get the money.
Martin had said that to let the diocesan parish have the money would “thwart the obvious charitable purpose” of her gift. In addition, there is no “reasonable expectation” the diocese will actually build a church for the Good Shepherd parish, since most if not all of its congregation have abandoned the diocese.
Herbst replied that when the doctor wrote her will, long before the same sex blessing issue came up, she meant to leave it to a parish in the Anglican Church of Canada. The executor of the Dr. Chun’s estate also knew the property was being conveyed to the parish corporation, she said.
She also labeled as “a great overgeneralization” a statement by one of the plaintiffs’ witnesses that “older generation Chinese Anglicans are generally very conservative in theology, and Dr. Chun never said anything to me that her own views were not conservative.”
In fact, said Herbst, the first female priest in the Anglican Communion was a Chinese-speaking woman, Florence Tim Oi Li. She was ordained in 1943. Herbst speculated that Dr. Chun, who was prominent in Hong Kong when there were few women doctors in Asia, would have had some sympathy for a ground-breaking woman priest.
As court rules provide, Cowper, the lawyer for the dissident group, got the last word before the court adjourned. He returned to the issue of the relevance of the American cases.
He argued that Americans are under a federal constitution that insists on a very strict separation of church and state, and in effect forbids US courts to get into religious disputes. They can only deal with religious organizations as they would secular organizations.
Cowper said that in Canada, the law is clear that courts can look at the religious principles that Churches and other religious organizations hold, and decide whether the organization is being true to them. Cowper said he is urging Judge Kelleher to do that and determine there is a religious trust set up by the Solemn Declaration of the Anglican Church in 1893 that has been violated by such theological innovations as same sex blessings.
Cowper again emphasized the important of the Solemn Declaration, which the diocese’s lawyers and witnesses downplay as an “historical document.” But Cowper said it always has formed the first part of the Anglican Church of Canada’s own constitution.
Cowper dismissed as of little significance the decision of the General Synod of 2007 that the same sex blessing issue was not contrary to the “core doctrine” of the Anglican Church of Canada. The synod’s resolution said that blessings weren’t core doctrine “in the sense of being creedal.” And the blessings aren’t, he admitted, they aren’t mentioned in the creeds.
However, the General Synod decision does say the blessings indeed do involve doctrine, and his clients believe that it is contrary to scripture. “They are justified in saying, ‘I don’t sign on to that vision of Christianity.’”
At this point Judge Kelleher asked about the issue of the remarriage of divorced Anglicans, which though hotly debated has not split the Church. “Aren’t there people who say that’s contrary to scripture?”
Cowper said there are many questions that Anglicans have worried about, but these questions have not resulted in the sort of protest that the blessings have caused. The Anglican Church has been very seriously divided by the same sex blessing issue, he said. It was not about the interpretation of scripture, he insisted.
In closing Cowper argued that the proper role for the judge would be to accept that Anglicans have split, and, invoking the law of trusts, allow the congregations to take the properties. The judge should not get into all the issues that divide the parties, since that would ultimately involve theological issues that Courts don’t wish to wade into. “It’s vastly preferable for you to acknowledge the division,” said Cowper.
The judge reserved his decision. He gave no indication as to when he might issue a judgment. In complicated cases of this sort, most judges take several months.
The judge had praise for the lawyers, who together gathered and submitted about 100 affidavits (sworn statements) for submission as evidence. That cut down the time required in court to hear from witnesses to two weeks, and the time for arguing the case to four days. Cases of this complexity can use up many more weeks, or months.
The lawyers worked out the procedure on their own, without the judge having to make a single order.
“It was in the best tradition of your work as barristers,” he said at the close.