The lawyer acting for four congregations who have left the Anglican Church of Canada in his final remarks Wednesday, June 10, pleaded with Mr. Justice Stephen Kelleher recognize the “reality” of division amongst Anglicans in the Diocese of New Westminster and let his clients continue to worship and minister in their church buildings.

 “Neither party has an unqualified legal right to the benefit of the properties dedicated to Anglican ministry and worship,” insisted Geoff Cowper, QC, a statement with which George Macintosh, QC, the diocese’s lawyer, strongly disagreed.

Cowper’s plea came during the third week of a trial in BC Supreme Court. The first two weeks beginning on May 25 were taken up with witnesses called by the two sides. The last week, which began on Monday, June 8, has been set aside for the lawyers to lead the judge through the testimony given in court and about 100 affidavits and documents, and make their arguments.

Some 22 leaders in four Vancouver area congregations are suing the diocese. They include four former diocesan priests. All the plaintiffs say they have left the Anglican Church of Canada and the Diocese of New Westminster. They want the court to rule that they can take their church properties with them.

The diocese says no one is being asked to leave except the clergy, because they no longer hold licenses from the bishop, having relinquished them up last year.

“Justice and equity” both require that the Court make an order which allows the four congregations to continue their ministry in their parish properties, resolves the “deadlock,” permits the congregations to have a new bishop, and lets them continue in an Anglican spiritual community that adheres to traditional doctrines and teaching of the Church.

Cowper said that the diocese’s position that the congregations just need to stay in the buildings and accept priests appointed by Bishop Michael Ingham—who has said he would appoint conservative priests—is “impractical and ungenerous.”

“[It] denies the depth and sincerity of the underlying differences between the parties,” said Cowper, as he summed up.

“All persons with religious convictions know that a time may come when those principles will carry a penalty,” he said. “If the plaintiffs’ decisions carry such a penalty under the law so be it. But is this such a case?”

Cowper suggested that to grant the diocese possession of the buildings would be to give the majority what it wants “because they form the majority here in this part of the Anglican world.” That “would leave unfulfilled the Court’s centuries old role and duty to protect faithful minorities.”

Much of the argument presented by the plaintiff’s lawyers contended that the trustees of the dissident congregations hold the church properties in a trust. Cowper asserted that both sides agreed there was “a trust in place”—a statement the diocese’s lawyer denied when he got up later.

While Cowper  insisted the dispute should not be considered primarily about the issue of homosexuality, he did insist that Bishop Michael Ingham was wrong to issue a rite of blessing of same sex unions in 2003—even if the Diocesan Synod had voted three times to request it.

The “innovation” of the blessing contributed to a world-wide breakdown in the Anglican Communion,” Cowper argued. The bishop had no unqualified ability to issue a rite that was to lead to a serious breakdown in the Anglican Communion.

Stanley Martin, also acting for the dissident group, spent much of Tuesday going over the history of the creation of the Anglican Church, and how it was born of division with the Roman Catholic Church in 16th Century England.

He put much weight on the Solemn Declaration of 1893, passed by the first General Synod of the Anglican Church of Canada, which the congregations claim holds the Anglican Church of Canada to a traditional understanding of the Bible.

The diocese’s witnesses had said they considered the Solemn Declaration was primarily an historical document, never intended to restrain the General Synod in its interpretation of doctrine. But Martin insisted it defined the Anglican Church of Canada, and was part of its constitution.

Judge Kelleher asked whether the Solemn Declaration had been used in previous disputes within the Church such as the ordination of women, or the remarriage of divorced persons. The dissident lawyers had no examples.

George Macintosh, the diocese’s lawyer, rose to remind them that in oral testimony Bishop Donald Harvey, who now is considered bishop by 29 breakaway congregations in Canada, said he had appealed to the Solemn Declaration when he was strongly opposed to the ordination of women in the Anglican Church.

Harvey has since changed his position and testified he now supports women priests, who have been ordained by Canadian Anglicans since 1976.

The judge asked Cowper if the conflict would have been resolved if Bishop Ingham had offered an alternative bishop who had episcopal oversight “with jurisdiction.” The bishop had insisted that as the diocesan bishop he could not delegate his ultimate jurisdiction.

The lawyer said that such a move would not have provided a long-term solution to the plaintiffs concerns, but would have provided a short-term workable option. His clients were doing everything they could to find a solution to remain Anglican, and faithful to what they considered was orthodox and traditional, he said.

Much of Tuesday afternoon was taken up with discussion about the not not often argued legal doctrine of cy-près, which Cowper introduced.

Cy-près, pronounced “sigh-PRAY,” is Norman French, and can be roughly translated as “as near as possible.” It gives a court the power to redirect the money in a charitable trust, if the original purpose of the trust is no longer possible.

A classic example occured in the US after slavery was abolished. A trust set up to turn public opinion against slavery was modified by a court to allow the money to be spent to assist freed slaves.

Cowper argued that the Solemn Declaration of 1893 had set up a trust, the purpose of which had been to further traditional, orthodox Anglican worship and ministry. But the actions of the Anglican Church of Canada and the Diocese of New Westminster and its bishop have made it impossible for the trustees in the four congregations to carry out that trust.

So the judge should use his common law cy-près power to “rescue” the trust. He should issue an order that the dissident trustees remain in charge and the congregations get to keep the church buildings, he argued.

Responding for the diocese when the defense’s turn came, Macintosh denied there is a trust at all. For one thing, there’s no trust document, he said: the plaintiffs need something written down. They cannot simply argue that the Solemn Declaration “implies” there is a trust. Cowper’s cy-près argument begins on “a very sandy foundation,” declared Macintosh.

He attributed the dispute not to the violation of a trust but to the attitude of the dissident congregations: “I respectfully call it intransigence.”

The congregations refused to accept the episcopal oversight of a conservative bishop—even though the Anglican House of Bishops and a “Panel of Reference” by the Anglican Communion thought they should, said Macintosh.

They refused to accept a “conscience clause” which meant they need not have anything to do with same sex blessings—even though their head bishop Harvey once praised a conscience clause that meant those opposed to the ordination of female priests didn’t have to interact with them.

Macintosh said that while the dissident Anglican Network claimed it had 29 parishes with a total membership of 3,500, the Anglican Church of Canada was made up of about 1,800 parishes with 625,000 members.

Different theological positions within a “big tent” denomination like Anglicans are “hardly surprising,” Macintosh argued. But most Canadian Anglicans—including many conservatives opposed to the blessing of same sex unions—feel they can remain in the Anglican Church of Canada.

The dissidents didn’t establish their parishes, Macintosh said. “Well over 90 per cent of the current congregations came to these places years after they were opened,” he said. The claim by congregations and their leaders that they have built the churches is false. He said the judge should distinguish between a congregation, which exists at a point in time, and a parish, which continues on as a constituent part of a diocese.

The Network dissidents are not members of the Anglican Communion, the diocese’s lawyer said, and are unlikely to become members. The link to the communion through the Archbishop of the Southern Cone, an Anglican Church in South America, has been declared “invalid” by the Anglican Church of Canada.

Their senior bishop, Harvey, was not invited to the Lambeth Conference in 2008. None of the other three “instruments of communion”—the Archbishop of Canterbury, the Primates’ meeting, or the Anglican Consultative Council—have formally recognized the dissidents as members of the Anglican Communion.

They aren’t recognized because they are trying to set up a new Anglican Church in a territory that already has one, said Macintosh. Their new Anglican Church would be defined by its theology instead of its area. That would be “completely unprecedented,” Macintosh claimed.

Allowing breakaway groups to take their property with them will have bad “disintegrative effect,” the lawyer argued. If all you need to leave with your church buildings are “sincerely held differences,” unhappy Anglicans who don’t get their way are likely to keep splitting off.

 “They want to call themselves, Anglican, but they in fact keep sailing away from what Anglicanism stands for,” he said.

Cowper and Martin finished just over two days of argument Wednesday morning, and Macintosh and Ludmila Herbst began theirs during the rest of the day. The defense lawyers expect to finish by early afternoon Thursday.

Under court rules the plaintiffs then get a chance for rebuttal, which Cowper said will not take very long. Judge Kelleher could then issue his decision from the bench, but much more likely will take several weeks or even months to write his judgment.