Wednesday, January 6, 2010

The Strange Death of the Original-Principles Trust (Pt 2)

Kelleher J.’s approach is to treat the application of the neutral principles of law, which is step one of the process, as both beginning and end of it. The cases he cites in support of his approach are all irrelevant to the case at hand. Two cases are cited in support of the proposition that questions of church doctrine are inappropriate subjects for judicial determination. Kelleher J. notes in particular that one of these cases referred approvingly to the U. S. Supreme Court’s groundbreaking 1979 decision in Jones v. Wolf (8). However it is not necessary to look to cases relying on American constitutional law in support of the doctrine that Anglo-Canadian courts ordinarily refrain from determining issues of church doctrine. That also is a centuries-old common-law doctrine, and the inquiry into fundamental original doctrines is a carefully carved out exception to it, as Professor Ogilvie explains in her text. Kelleher J. further cites Protection of the Holy Virgin Russian Orthodox Church (9), where the Quebec Court of Appeal declined a request for a declaration that to be a member of the parish, a person must observe the teachings of the church. There was no trust argument in that case so the refusal of the court to get involved in matters of doctrine has no relevance here. The portion of the trial court decision cited an Ontario Court of Appeal decision in Balkou v. Gouleff (11). In that case the court was asked to determine whether church doctrine forbade membership in Communist organizations. Again, this is not a church property case and has no bearing on the fundamental-principle doctrine.

The oddest citation in support of this approach comes in paragraph 252, where Kelleher J. cites a statement by Burton J.A. in Itter v. Howe (1896)(12) in support of the proposition that “[t]he notion of civil courts deferring to ecclesiastical authority on questions of doctrine has deep provenance in Canada.” As a refutation of the fundamental-principles doctrine, this reference is negated more than adequately by Kelleher J. himself in paragraphs 268 and 269, where he discusses the case and demonstrates that the fundamental-principle rule was applied in it. The dissidents lost in Itter v. Howe, but the principle itself was recognized --as it always has been until Bentley v. New Westminster was released.

The other argument Kelleher J. uses is that trust doctrine does not apply in the case of a hierarchical church such as the Anglican Church, which was an elaborate and complicated set of rules, procedures, and authorities. This appears to be an acceptance of the defendants’ novel argument, also derivative of American categorizations, that the trust doctrine applies only in congregational churches, and not hierarchical ones. I have not been able to find any case law cited by either Kelleher J. or the defendants in support of this proposition; I believe none exists. The doctrine has always applied to hierarchical and non-hierarchical churches; to churches with elaborately constructed internal mechanisms and those with no written statements of doctrine at all. The analysis has been applied to eastern Orthodox churches which are more hierarchical than the Anglican Church. It has been applied to the Methodist Episcopal Church in the 1830s, a hierarchical church within the legal meaning of the term and one with a more detailed and precise set of rules and internal procedures than Anglicans have. There is no basis for this argument in either precedent or logic; the ill that the fundamental-principles doctrine attempts to remedy is the same whether the abandonment has occurred by an arbitrary decision in a single congregation with no written doctrinal statement or a thoroughly debated decision in a denomination with 500 pages of constitution and canons.

What would impel Kelleher J. to reject the existing doctrine so brazenly? I want to discuss this because orthodox Christians succumb all too easily to the temptation, and I use the word literally, to attribute all adverse judicial decisions to the implacable hostility of the secular world and its rejection of the truth in Christ. It must be acknowledged that in any case where judicial bias, open or covert, influences a decision, the probability is great that the relevant bias will be against orthodox Christianity. However in Bentley the possibility that the adverse decision was actuated by bias can be completely dismissed. A companion issue in the case involved the disposition of the Chun bequest, a $2.2 million building fund claimed by both a dissenting and a successor ACoC congregation. Without discussing the trust issues there, it may be said that the choice of beneficiary was something close to an act of pure equitable discretion. The departing ACNA congregation was awarded control of the Chun bequest. It is impossible that a judge motivated by hostility to orthodox doctrine would have made that decision.

The reason that the place of the fundamental-principles doctrine could be seen in advance of this litigation to be somewhat precarious is that it has an archaic air to it. Aspects of it seem to belong to a bygone age, to a time when any educated English gentleman, of whatever religious belief, who might find himself on the bench could be expected to know the basic doctrines of not only the Church of England but the major sectarian groups (and even of “Papists”, as they were described in one of the major early House of Lords precedents). Like the law lords in the case marking the high water mark of the doctrine, Free Church of Scotland v. Overtoun (13) (see Wikipedia entry), a judge could be expected to engage in learned discussion on the degree of significance of an alteration of the doctrine of double predestination by the adoption of the statement that “God is not willing that any should perish, but that all should come to repentance.” In a post-Christian age, we cannot expect judges to bring with them that kind of expertise. Nor are Christian churches the only religious institutions to which the doctrine applies. In the English case of Varsani v Jesani , a Hindu sect’s founder was believed to be the incarnation of the Supreme Being, and a division arose over the extent to which his successor also enjoyed divine status. Carnwith J. was faced with the task of determining which faction (if either) had deviated from the sect’s original fundamental principles, in a sect with no written doctrinal statement that could be adverted to. Understandably, he balked, and found a solution in a statutory scheme that allowed division of properties between the factions. There is no equivalent statutory provision in Canada, so a judge here would have to make that challenging factual determination.

The necessary entanglement of the state in church affairs of the fundamental-doctrines rule leads activist judges to look for some way to extinguish it. The strength of this sentiment may be seem from the reaction to the decision by Don Hutchinson, general legal counsel for the Evangelical Fellowship of Canada (EFC). It is churches like EFC members who derive the most benefit from a doctrine protecting established orthodoxy. Despite this, Hutchinson said “he found it appropriate that Justice Kelleher "respected the religious freedom of the Anglican communion" by allowing internal Anglican processes to resolve internal Anglican disputes. "We don't want the courts or government making final decisions on the beliefs, practice and polity of a church."

So far so good as to the chances of a successful appeal by the ANiC churches, who at the time of writing are in a discernment process to determine whether they should appeal. (A notice of appeal has been filed to meet the deadline.) However, as we shall subsequently see, the situation gets much stickier when we look at ANiC's ability to show that the ACoC has indeed violated the original principles doctrine as the coirts have applied it.


(8) (1979), 443 U.S. 595, 1979 U.S. LEXIS 16
(9) (1st ed., at 209).
(10) [2001] O.J. No. 438 (S.C.); varied 2002 CanLII 3570 (ON C.A.), 30 B.L.R. (3d) 315, 167 O.A.C. 138
(11) (1989) 68 O.R. (2d) 574.
(12) (1896), 23 O.A.R. 256, [1896] O.J. No. 31 (QL) (C.A.)
(13) [1904] AC 515 (H.L.)


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