Could Canadian courts become the highest appeal for Reformed Synods? On the feature today, John Sikkema explains the background to the “Wall case”, which ARPA argued before the Supreme Court of Canada last week.
In the news..
Your kids’ teachers could legally keep you in the dark: NDP introduce Bill 24, a proposed new law in Alberta that further strips parental rights in education.
Freedom of Religion for the ‘grizzly bear spirit’?: The Supreme Court has set some limits on what constitutes “Freedom of Religion” in the Charter
Do worship services deserve special protection in law?: ARPA appears before a Parliamentary Committee to argue against changes to the Criminal Code
Manitoba is unified on protecting Doctor’s consciences: All-party support for proposed law to recognize conscience protection for medical professionals in Manitoba.
Alberta Education Minister David Eggen has tabled long-expected amendments to the province’s Education Act. Among other things, Bill 24, which is entitled “An Act to Protect Gay-Straight Alliances”, will make it a crime for schools to inform parents if children are struggling with issues of sexual identity, or if they have chosen to join a so-called Gay-Straight Alliance Club at their school, unless children give their explicit consent. Donna Trimble from the group “Parents for Choice in Education” says the new rules are pretty egregious, because there are virtually no exceptions. “There’s no explicit protection… for parent notification based on age appropriateness. and we’re talking about children as young as five. There’s no explicit protection for the history of the child; so past trauma, mental health issues, issues around self-harm or suicidal ideation, the child’s mental capacity – children with autism. (And) there’s no consideration for the fact that students that are attending these GSA’s may come from families that have very different faith or cultural considerations.”
The Act also says when it comes to creating safe and inclusive environments in schools, principals are accountable to the Minister, and not to their School Boards or School Superintendents to ensure that the rules are followed, and that the government can step into any school, including private or parochial schools, if the government isn’t satisfied that those new rules are being followed.
The Supreme Court of Canada issued a major ruling last week, which places some restrictions on the definition of the Charter right of “Freedom of Religion.” The ruling was in the Ktunaxa case in British Columbia. You may recall we featured that case on Lighthouse News last December. It involved a challenge by the Ktunaxa Indian Band in southeastern BC against the BC government’s decision to approve a ski resort development.
The Band claimed the government hadn’t properly considered the “Freedom of Religion” clause in the Charter of Rights, because approving the development would interfere with their relationship with the grizzly bear spirit which occupies the land in question. They argued that if the ski resort were to go ahead, they would no longer be able to engage in a number of spiritual practices that were important to them. A number of religious organizations, including Christian Legal Fellowship, intervened in the case in support of the band’s claims. The Court’s ruling, issued last Thursday, reads in part: “”that the (Ktunaxa Band’s) claim does not engage the right to freedom of conscience and religion under Section 2 a) of the Charter.” That Section, the ruling continues, “protects the freedom of individuals and groups to hold and manifest religious beliefs. (But) the Ktunaxa’s claim does not fall within the scope of Section 2 a) because neither the Ktunaxa’s freedom to hold their beliefs nor their freedom to manifest those beliefs is infringed by the… decision to approve the project.”
“The case,” the ruling says, “is not concerned with either the freedom to hold a religious belief or to manifest that belief. The claim is rather that Section 2 a) of the Charter protects the presence of Grizzly Bear Spirit in (the land in question.)” “This,” the ruling said, “is a novel claim and invites this Court to extend Section 2 a) beyond the scope recognized in our law. The state’s duty under Section 2 a) is not to protect the object of beliefs, such as Grizzly Bear Spirit. Rather, the state’s duty is to protect everyone’s freedom to hold such beliefs and to manifest them in worship and practice or by teaching and dissemination.”
At its core, the ruling means the BC government did not act “unreasonably” in approving the ski resort. The project still has to clear several environmental and other regulatory hurdles before construction can start.
ARPA’s Director of Law and Policy, André Schutten, appeared before Parliament’s Justice Committee last week, arguing against a change to the Criminal Code.
As part of a new law called Bill C-51, the government wants to remove a section of the Criminal Code that expressly prohibits anyone from interfering with a religious service that’s in progress, and also protects members of the clergy from being harassed or interfered with on their way to or from a religious service. The government argues that this kind of behaviour is already forbidden in other sections of the Code -the sections prohibiting mischief and harassment, for example – and that disrupting a religious service is really no different than a protest against a public rally at a park. But in his appearance before the Committee, André Schutten argued that disrupting a religious service is substantially different “in kind” from other kinds of protests. An example, he said, would be if someone were to suggest other amendments to the Criminal Code, like simplifying the law against assault. “We already have assaults prohibited in Section 265; (why don’t we) get rid of sexual assault (as) prohibited in Sections 271, 272, and 273?” Schutten said he expected the Committee would disagree with that because there’s “something different ‘in kind’ with sexual assault… therefore we need both provisions to be in the Criminal Code, because we’re deterring two different things.” While he acknowledged his hypothetical situation wasn’t a perfect analogy, he insisted the example is analogous to the notion that disruptions to “religious services are different ‘in kind’ from (disruptions to) a university lecture or a rally in a public park.”
The Committee is considering whether to take that section out of Bill C-51 this week; you can send your MP and Committee members an EasyMail on this subject at this link.
It appears there will be all-party support for a bill to protect conscience rights for doctors in Manitoba. The issue came up in the Manitoba Legislature’s Question Period last month in the context of a man whose requests for euthanasia had been delayed because he was in a Catholic hospital which doesn’t offer or refer for euthanasia.
NDP leader Wab Kinew raised some questions about the process in that case, but also said his party would “respect the rights of health-care professionals to treat patients in a manner that respects their conscience.”
The Manitoba legislature is currently considering a Bill that would provide this conscience protection, and Kinew said the NDP would be supporting that bill. The Bill received second reading last week, and is now off for Committee review. ARPA has an EasyMail letter up on the website for Manitoba supporters to send to their MLA’s.
ARPA lawyer John Sikkema appeared before the Supreme Court of Canada last week, making arguments as an intervener in the so-called “Wall” case. That’s the one where the Supreme Court has been asked whether secular courts have authority to intervene in matters of ecclesiastical discipline. The arguments are being herd in the context of the “disfellowshipping” of a member of a Jehovah’s Witness congregation in Calgary.
ARPA had been accepted as an intervener in the case, and filed written arguments earlier this fall.
The issue was highlighted during the annual ARPA fall tour, and on the feature this week, we’ll hear an edited version of a presentation from John Sikkema on the background to the case. Much of the information in that presentation is very similar to the arguments he made before the Supreme Court.
JS: We’re all aware that if a person is disciplined – excommunicated – it’s very serious. As the Heidelberg Catechism says, “They (the excluded, the excommunicated person) are excluded by the elders from the Christian congregation, and by God Himself from the Kingdom of Christ.”
Now, Jehovah’s Witness congregations – although not recognizing the divinity of Christ – purport to practice a form of excommunication that’s called “disfellowshipping”. Jehovah’s Witnesses also practice something associated with that that’s referred to as “shunning”, in kind of a fairly extreme form. And Jehovah’s Witnesses are not to speak to, or associate with disfellowshipped members. In this case, in April 2014, a man by the name of Randy Wall was disfellowshipped from the Highwood Congregation in Calgary for being in their view “insufficiently repentant” for instances of drunkenness and verbal abuse of his wife. And Mr. Wall was a Real Estate agent.
So what happens is, Mr. Wall is not sufficiently repentant; he goes through a church process and then a higher church process of several congregations, and then once he’s excommunicated – once he’s disfellowshipped – the Jehovah’s Witnesses who are his clients say “We don’t want you to be our Real Estate agent anymore. In fact, we’re not supposed to use you as a Real Estate agent anymore as per the teaching of our church.”
So Mr. Wall loses a lot of business. And perhaps because of that – certainly he used that as one of the reasons – he takes his congregation to court. He wants a judge to decide that the elders’ decision to disfellowship him was made unfairly; was made in error.
Now before the court could look at that, the congregation raised a preliminary question that the court had to answer. And that question is this: “Does a secular court even have jurisdiction or authority to decide this case?” And the lower court judge held that he did have jurisdiction to review the elders’ decision to disfellowship Mr. Wall. The congregation appealed to the Alberta Court of Appeal – the highest court in Alberta – and that court had a panel of three judges. And two of the three judges there agreed with the lower court judge. The remaining judge of the three disagreed, and with that split court, the congregation appeals to the Supreme Court of Canada.
So this case, then, is about the state’s authority to over-ride a church’s decision on internal matters. And not just any internal matter. There’s something quite core. One of the keys of the Kingdom. Church discipline.
Depending on what happens at the Supreme Court, the matter will either stop there; if the court says “Look, outside of some kind of legal interest, just an issue of church membership, spiritual authority; we don’t have authority to decide this”, then the case will end there and that will be in many ways a very good precedent. Or, the Supreme Court will say “Yup, this is something courts get to decide,” and then they tell the lower court judge (to) go back and look at all the evidence and decide what actually happened here. So this is just kind of a beginning question that made its way all the way up to the Supreme Court.
You can probably see by now that this case has implications for others besides Jehovah’s Witnesses. Reformed churches, as I mentioned, recognize and teach explicitly in our Catechisms that Christ gives the authority to exercise church disciplines to the church and not to civil magistrates. It’s the Belgic Confession that says “we are to obey the state in everything that is in accordance with God’s Word.” So it sets kind of a limit there on our obedience.
And we have a few key Biblical texts that go to how church discipline is to be done. That’s another thing that the other side isn’t arguing is that “maybe we don’t need to tell the church what to believe, but certainly we’re experts on what’s fair.” And we all know churches can treat people unfairly, and people have lots of stories of being treated unfairly by the church, and I would agree that churches should have fair processes in place to do something as serious as church discipline, but what they’ve been saying is “Let’s let the court deal with fairness.” They’re not going to tell your church “what to believe”, they’re just gonna see “is your church treating people fairly.” But how we do church discipline, of course, involves interpreting Scripture, which we believe the Spirit equips the church to do.
So we’re going to look at a couple of Bible passages briefly here. One is this, where Christ gives the keys of the Kingdom to Peter. “I tell you that you are Peter, and on this rock I will build my church, and the gates of Hades will not overcome it. I will give you the keys of the kingdom of heaven; whatever you bind on earth will be bound in heaven, and whatever you loose on earth will be loosed in heaven.” Another passage going to how this is to be done is found in Matthew 18, “If your brother sins, go and point out their fault, just between the two of you. If he listens to you, you have won them over. But if he will not listen, take one or two others along, so that ‘every matter may be established by the testimony of two or three witnesses. If he still refuses to listen, tell it to the church; and if he refuses to listen even to the church, treat him as you would a pagan or a tax collector. Truly I tell you, whatever you bind on earth will be bound in heaven, and whatever you loose on earth will be loosed in heaven.”
Now it’s a very serious thing; I think it’s worth reflecting on as Christians and as church members, as to how we do this, and that we do it carefully. But where this perhaps isn’t done carefully or even where it is, the question is “Who gets to decide who is charged by God to make sure that it’s done properly?” And we are arguing in our intervention that that is the church’s job. And in this case we have the potential that a civil judge – who knows if he’s a Christian, atheist, or Buddhist, in any case, whatever his belief, it’s not his role – can decide whether the Biblical texts we looked at have been appropriately interpreted and applied.
So if you just imagine that someone in your church is unrepentant for some sin, and is being disciplined, and takes your church to court for that, and the court demands that your consistory explain whether they properly interpreted what Jesus said in Matthew 16 and 18, and whether the sin in question is actually so bad, and whether repentance might look different from what the consistory thinks — and what happens if the court overturns the church’s decision? Who are we then to obey? What’s the church to do?
And at this stage, obviously, what we’re doing is trying to make the (Supreme) Court understand and respect that there is something called ecclesiastical jurisdiction; there is a sphere of authority in the church that we do have some history of recognizing and respecting, and we’re bringing that to the Court’s attention, and reminding it of that.
We know that if the Supreme Court gets the answer wrong, we’re gonna have further struggles on this down the road.