The Canadian approach to religious institutions should prevail in Canada over the American insistence that there be a strict separation between church and state, a lawyer told the BC Court of Appeal Monday.
Geoffrey Cowper, QC, representing four former congregations in the Diocese of New Westminster, made the argument during the first day appearing before a three-judge panel.
The four congregations are St. John’s Shaughnessy, Good Shepherd, and St. Matthias & St. Luke, all of Vancouver, and St. Matthew, Abbotsford
After a trial before Judge Stephen Kelleher May and June, 2009, the judge ruled in November that while the elected trustees of the four congregations couldn’t be removed by Bishop Michael Ingham, they had to operate in accordance with the rules and regulations of the diocese.
Judge Kelleher ruled that the dissidents may not use their properties outside the Diocese. They cannot take their properties with them if they insist on continuing to affiliate as part of the Anglican Network in Canada, whose chief bishop (or Primate) is based in South America. The group had announced it had joined the ANiC in May of 2008.
But Judge Kelleher erred in law, insisted the lawyer representing the four congregations on Monday.
Cowper told the Appeal Court that Judge Kelleher had based a key part of his judgment on the American principle that the state must base decisions involving disputes over religious property on “neutral” property law. But that is not the case in Canada, the lawyer insisted.
The hearing in Vancouver before Judges Mary Newbury, P.D. Lowry, and Nicole Garson is scheduled to continue through Thursday. The four congregations brought suit against the Diocese, so as the appellants they make their arguments first. The lawyers defending the Diocese, led by George Macintosh, Q.C., have their turn beginning Tuesday afternoon.
Cowper, arguing for the four congregations, insisted they remain Anglican, though they have left the Anglican Church of Canada.
He said that no matter what the legal title, their leaders were custodians of their church building as trustees of an implied “religious purposes trust.” That is why they are called “trustees.”
A trust is a property interest held by trustees held for the benefit of others – in this case, for the benefit of members of the congregation.
Indeed, the lawyer argued, because there is an implied religious trust, neither the Diocese nor the Bishop have power over parish property. They have “a little power” over its disposition – a parish cannot sell property without diocesan approval, for instance.
But that power is only to be exercised to uphold the religious purposes trust, Cowper argued. The trustees of that trust are chosen from the congregation, he pointed out.
The lawyer argued that Canadian law says that the Court has to take into account the original purpose of a religious purposes trust. In this case, he contended, the original purpose of the parish trusts was to support congregations that conformed to fundamental Anglican doctrine.
The original purpose certainly would not support theological innovations like the blessing of same sex unions, Cowper said. Bishop Michael Ingham in 2002 agreed to authorize the blessing (after the request of a majority of the Diocesan Synod) and implemented the blessing the following year.
In the US, said Cowper, a Court might only pay attention to such things as who holds formal title to property, but will not concern itself with religious purposes unless it’s “dragged into it kicking and screaming,”
“In Canada we ought to follow our law, not American law,” he told the Court.
Anglicans “sincerely” fall on both sides of the blessings issue, said Cowper. For those who uphold the historic, fundamental doctrines, the Court should intervene – indeed, it has a duty to intervene – and let the trustees of the four congregations fulfill the trust in a way that benefits their conservative congregations, in line with the Anglican Church’s original purposes.
The question the Court should be asking, said Cowper, is whether this can take place in the current circumstances. “Or has the trust become impracticable”? If so, the Court must intervene.
At this point Justice Lowry asked from the bench whether it was relevant that the Anglican Church of Canada had decided, at its 2007 General Synod, that the same sex blessings issue, while of theological importance, was not “core doctrine.”
Cowper replied that the issue in religious disputes, while it shouldn’t be trivial, might be over something that isn’t core doctrine – like the colour of vestments. It has to be a serious dispute in the religious body, sincerely held, but not necessarily “core” for the Court to have a duty to make sure the religious trust is upheld.
Generally, members of the congregation have purchased property for their buildings, raised funds for construction, maintained them, and paid to staff them. He suggested that “common justice” would mean that “these people have earned the right to continue in their churches.”
Cowper emphasized that while he was asking the Court to take notice of the dispute amongst Anglicans, he wasn’t asking the Court to get involved in a theological dispute over the blessing of same sex unions.
“Don’t worry,” interjected Justice Mary Newbury. “We won’t do that!”
The case continues.