Unless specific circumstances have been met in a criminal case, or the case in question is a Reference, appeals are heard by the Supreme Court only if leave to appeal is given. The standard for whether leave will be given is when the case involves a question of public importance. Recently, the Supreme Court has decided that a dispute between an individual and his membership at his chosen Church is of sufficient public importance.
The facts of the dispute are relatively simple. A man was disfellowshipped, a concept equal to ex-communication, from his place of worship for failing to uphold a certain standard of conduct, and then for failing to be sufficiently repentant of those wrongdoings. The man subsequently lost a lot of real estate business, as the majority of his clients were fellow members of his place of worship. However, it is not whether the man’s business actually suffered and damages occurred as a result of his disfellowship that is the concern of the Supreme Court. Rather, the leave to appeal was granted over a jurisdictional question. Is a decision made by a religious body justiciable? In other terms, does the judicial system have discretion to make decisions that interfere with the voluntary membership of an individual and his chosen religious organization?
At the trial level, the court determined that they did have jurisdiction to make a ruling over whether or not the disfellowship could be overturned. This court accepted that they had jurisdiction because the disfellowship had an impact on his civil and property rights. Undeniably, the court has jurisdiction to hear matters relating to civil and property rights.
The case was then appealed to the Court of Appeal, where the majority upheld the trial judge’s ruling. While the majority accepted that courts typically do not interfere in matters relating to memberships in voluntary associations, that they could in this case because of the impact on civil and property rights. Their argument suggests that once your membership in a religious organization has an impact on your property and civil rights it is subject to the oversight of the courts.
Most interesting to this decision is the dissent of Justice Wakeling, which focused on the constitutionality of interfering with memberships in voluntary associations. He argued that private actors are not subject to judicial review, and that as the congregation makes no decisions that have consequences for members of the public, it is not a public actor which could be subject to judicial review. That there is no justiciable question because church membership is not a legal right. He further established a Charter argument where he expressed that constituent members have the constitutional right to determine membership.
Does the freedom to associate include the freedom to not associate? TBD.
By: Samantha Hamilton, Student-at-Law