Highwood Congregation v. Wall — Factum of the Intervener Christian Legal Fellowship (Supreme Court of Canada, 2017)

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IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL OF ALBERTA)

BETWEEN:

JUDICIAL COMMITTEE OF THE HIGHWOOD CONGREGATION OF JEHOVAH'S WITNESSES (VAUGHN LEE - CHAIRMAN AND ELDERS JAMES SCOTT LANG AND JOE GURNEY) AND HIGHWOOD CONGREGATION OF JEHOVAH'S WITNESSES

and

APPELLANTS (Appellants)

RANDY WALL

and -

RESPONDENT (Respondent)

SEVENTH-DAY ADVENTIST CHURCH IN CANADA, CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS IN CANADA, CANADIAN COUNCIL OF CHRISTIAN CHARITIES, ASSOCIATION FOR REFORMED POLITICAL ACTION CANADA, BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION, CANADIAN CONSTITUTION FOUNDATION, CHRISTIAN LEGAL FELLOWSHIP, EVANGELICAL FELLOWSHIP OF CANADA, CATHOLIC CIVIL RIGHTS LEAGUE, WORLD SIKH ORGANIZATION OF CANADA AND JUSTICE CENTRE FOR CONSTITUTIONAL FREEDOMS, CANADIAN MUSLIM LAWYERS ASSOCIATION

INTERVENERS

FACTUM OF THE INTERVENER CHRISTIAN LEGAL FELLOWSHIP (Pursuant to Rule 42 of the Rules of the Supreme Court of Canada)

Suite 202-285 King Street London ON N6B 3M6

Derek B.M. Ross

SUPREME ADVOCACY LLP

Deina Warren

Tel: (519) 208-9200

Fax: (519) 601-4098

Suite 100,340 Gilmour Street Ottawa ON K2P 0R3

Email: execdir@christianlegalfellowship.org

Eugene Meehan, Q.C.

Marie-France Major

Tel: (613) 695-8855

Fax: (613) 695-8580

Email: emeechan@supremeadvocacy.ca mfmajor@supremeadvocacy.ca

Counsel for the Intervener Christian Legal Fellowship

Fellowship

n Legal FILED

SUPREME COURT

OF CANADA

OCT 05 2017

DÉPOSÉ

Freedom of religious association is a cornerstone of democracy: "the autonomous existence of religious communities is indispensable for pluralism in a democratic society." 1 Autonomous self-regulation of membership is, in turn, a cornerstone of religious association; it is a "group's foremost freedom." 2 The pre-eminence of church autonomy is affirmed in the first article of the Magna Carta, one of only three clauses which remains in force today. 3

Courts in liberal democracies worldwide generally refuse to interfere with internal membership decisions of religious communities. 4 Canada is no exception. Common law jurisprudence limits court jurisdiction in such instances to matters engaging civil or property law rights, and even then, only to ensure that organizations follow their internal rules, with regard to the principles of natural justice. 5

To go beyond this - for example, by reconsidering the merits of a decision or questioning the propriety of certain spiritual procedural requirements 6 - would be to unjustifiably interfere with the autonomy of religious communities and violate the principle of state neutrality. 7

The decisions under appeal seem to represent a departure from this traditional common law approach. 8 The present appeal raises questions about the scope of a secular court's jurisdiction over the internal decisions of a voluntary religious organization, and particularly, the extent to which the Charter guarantees of freedom of religion and freedom of association protect against State interference with a religious community's membership decisions.

9 This issue has not been definitively answered by this Court. 10

A court tasked with the resolution of an issue it has not resolved before "must turn to first principles for guidance." 1 1 Christian Legal Fellowship 1 2 submits that, in determining "first principles" in the instant matter, it is helpful to look to international law and jurisprudence.

As this Court has repeatedly affirmed, the Charter: (i) must be interpreted consistently with Canada's international obligations and the relevant principles of international law; 13 and (ii) "should generally be presumed to provide protection at least as great as that afforded by similar provisions in international human rights documents which Canada has ratified." 14

This Court's interpretation of religious freedom and freedom of association, and of common law rules relating to internal religious disputes, ought to align with Canada's international obligations and commitments. International jurisprudence rooted in these and other similarly worded instruments has consistently granted religious organizations a significant scope of autonomy, free of judicial interference, particularly in the context of membership decisions and self-definition. The instant appeal presents no reason to depart from these principles.

PART III — ARGUMENT

A. Canada's international human rights obligations protect the autonomy of religious communities

As McLachlin CJ, Moldaver J, and Rothstein J affirmed in Loyola, "international human rights instruments recognize the communal character of religion and support the extension of constitutional protection to the organizations through which congregants worship and teach their faith." 15 These instruments include:

a. the Universal Declaration of Human Rights (UDHR), Article 18: "Everyone has the right to freedom of thought, conscience and religion", and this freedom can be expressed "either alone or in community with others in public or private"; 16

b. the International Covenant on Civil and Political Rights (1966) (ICCPR), to which Canada is a signatory, Article 18: everyone has the "freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching;" Article 22: everyone has "the right to freedom of association with others"; 17

c. the European Convention on Human Rights (European Convention), which contains virtually identical provisions to the ICCPR's Article 18 and Article 22. 18

In addition, Canada is a member of the Organization of American States (OAS) and a party to the American Declaration on the Rights and Duties of Man which provides that everyone "has the right freely to profess a religious faith" and "has the right to associate with others to promote, exercise and protect his legitimate interests" including religious interests. 19

Canada is also a participating member of the Organization of Security and Co-operation in Europe (OSCE) and has committed itself to following the Vienna Concluding Document (1989), which guarantees the right of religious communities to "organize themselves according to their own hierarchical and institutional structure" and "select, appoint and replace their personnel in accordance with their respective requirements and standards...” 20

These instruments - which reflect not only international consensus but principles that Canada has itself committed to uphold 21 - and their interpretation by international tribunals provide important considerations to inform the interpretation of the Charter, 22 as well as in considering any developments to the common law. 23

B. International law affirms the communal/group aspects of religious freedom, which requires a wide scope of freedom to determine internal governance

The European Court of Human Rights (ECtHR) has developed rich jurisprudence on religious group autonomy which is pertinent to the present appeal. While Canada is not a party to the European Convention, this Court has held that international law jurisprudence is a "relevant and persuasive" source for "the interpretation of the Charter's provisions," 24 and has referred to ECtHR decisions in considering the content and scope of Charter rights, 25 describing its case law as a "very valuable guide." 26 Further, the ECtHR is a "scrupulous judicial body interpreting often-similar human rights protections"; 27 in this case, the relevant provisions of the European Convention are virtually identical to those in the ICCPR (to which Canada has acceded). 28

The ECtHR has repeatedly affirmed that freedom of religion is exercised not just individually, but "in community with others, in public and within the circle of those whose faith one shares." 29 Religious communities are therefore a necessary means by which individuals effectively exercise their rights to religious freedom: "participation in the life of the community is thus a manifestation of one's religion, protected by Article 9 of the Convention." 30 Accordingly, the right to religious freedom must safeguard religious communities against unjustified State interference in their internal affairs: 31

Where the organisation of the religious community is at issue, Article 9 [freedom of religion] of the Convention must be interpreted in the light of Article 11 [freedom of association], which safeguards associative life against unjustified State interference. Seen in this perspective, the believers' right to freedom of religion encompasses the expectation that the community will be allowed to function peacefully, free from arbitrary State intervention. Indeed, the autonomous existence of religious communities is indispensable for pluralism in a democratic society and is an issue at the very heart of the protection which Article 9 affords. 32

Protection of the religious community's organizational life requires the State to generally avoid interfering with decisions related to membership and its attendant qualifications and procedures. According to the ECtHR, the principles of state neutrality and church autonomy prohibit State actors "from obliging a religious community to admit new members or to exclude existing ones." 33 Interference with such decisions "would run counter to the freedom of religious associations to regulate their conduct and to administer their affairs freely." 34

Similarly, the "right to freedom of association with others" guaranteed by Article 22 of the ICCPR includes the "collective negative freedom of an association to expel a member who has breached the terms of association." 35 It imposes an obligation on States not to interfere with associations, and to allow their members to "determine their statutes, structure and activities and make decisions without State interference." 36 In its definitive interpretation of the ICCPR, the UN's Human Rights Committee explains that "the practice and teaching of religion or belief includes acts integral to the conduct by religious groups of their basic affairs, such as the freedom to choose their religious leaders, priests and teachers." 37

The ECtHR has also held that, within religious organizations, individuals are not entitled to a "right to dissent." 38 Respect for the autonomy of religious communities requires State actors to accept the right of such communities to respond in accordance with their own rules and interests to any internal disagreement that "might pose a threat to their cohesion, image or unity." 39 It is therefore "not the task of the national authorities to act as the arbiter between religious communities and the various dissident factions that exist or may emerge within them." 40

Most "church autonomy" cases considered by the ECtHR involve discipline of members in leadership or ecclesiastical positions, rather than lay members such as the Respondent, and there is arguably an even greater case for judicial non-interference in the latter context, where members agree to submit to the spiritual authority and decision-making of religious leadership. Regardless, the principles espoused in the jurisprudence are relevant to, and provide compelling reasons for non-interference in, both contexts: "The ECtHR's clearly stated position, and the absence of case law concerning membership admissions, indicate the vast freedom that religious organizations typically have to determine their own membership under the Convention." 41

C. Autonomous religious communities are a necessary social good

International jurisprudence also provides helpful insight as to why this "vast freedom" is necessary. International thought on human rights provides a persuasive source for interpreting the scope of the Charter, 42 and within that body of thought there is growing consensus that the autonomous existence of religious communities is an important social good for at least three reasons: (i) it is necessary for the realization of individual freedom and personal autonomy; (ii) it facilitates the development and transmitting of religious beliefs between generations; and (iii) it is an indispensable element for genuine pluralism in a free and democratic society.

It may be tempting to frame disputes such as the present one as a contest between the vitality of a religious organization and individual autonomy. But this is conceptually wrong. The vitality of religious organizations is itself a necessary precondition to the realization of individual autonomy - the two social goods are symbiotic, not antithetical:

Without the infrastructure provided by religious organizations, a person cannot pursue a religious way of life. If a person does not have the option of a religious way of life then they do not have an adequate range of options from which to live an autonomous life. Harm to religious organizations therefore results in harm to personal autonomy. 43

When a member is asked to leave a community, theirs is not the only autonomy consideration engaged. The autonomy of the group's existing members to live out their religious way of life in community together is undermined if the State dictates how they can determine their membership. 44 To harm group autonomy is to harm individual autonomy.

This is reflected in the ECtHR's repeated affirmation that autonomy for religious communities "directly concerns not only the organisation of the community as such but also the effective enjoyment of the right to freedom of religion by all its active members" and that "were the organisational life of the community not protected by Article 9 of the Convention, all other aspects of the individual's freedom of religion would become vulnerable." 45

Membership decisions lie at the core of group autonomy, since the very character of the organization is determined by its composition. Discipline or expulsion of members is essential to the group's self-definition - it enables the group to ensure that all members are acting in mutual interest and with shared goals, ideals, and commitments. As the ECtHR has held, the ability to "act collectively in a field of mutual interest is one of the most important aspects of the right to freedom of association, without which that right would be deprived of any meaning." 46

State interference in a religious community's decisions related to membership composition therefore harms the individual's religious freedom - and ultimately individual autonomy - by "altering the character of the organization by which they pursue a religious life. Without a religious group's ability to self-define, the option of a religious life is meaningless." 47

ii. Developing and transmitting religion between generations

Religious communities are not merely "aggregations of like-minded individuals who come together to exercise pre-existing beliefs with those who share their view"; rather, they "play an essential role in shaping the beliefs that individuals hold as they teach and transmit ideas from one generation to the next, and they are also the vehicles for the formation and development of religious doctrine." 48 In this regard, the autonomous existence of religious communities is necessary not only to protect the individual religious freedom of their members, but to ensure the continuation of the religion itself.

The right to transmit religious beliefs from one generation to the next is expressly protected under Canada's international human rights obligations. As this Court recognized in Loyola, the ICCPR protects the liberty of parents and legal guardians to ensure the religious and moral education of their children in conformity with their own convictions. 49 Nearly identical wording is contained in the International Covenant on Economic, Social and Cultural Rights, to which Canada acceded in 1972. 50 This Court has included both of these documents in its list of "the sources most important to the understanding of s. 2(d) of the Charter." 51

This Court has also affirmed that the Charter protects "the right of parents to bring up their children in their faith." 52 In order to do so, believers require religious communities. As LeBel J. observed, "Religion is about religious beliefs, but also about religious relationships." 53 This necessitates "a community that shares a common faith and a way of life that is viewed by its members as a way of living that faith and of passing it on to future generations." 54

Religion is developed by "persons in community as group members work together to interpret, refine and reform inherited beliefs and formulate new ones." 55 When the State interferes with the autonomy of these communities, particularly as it relates to the composition of the group, it meddles with the "very process of forming the religion as it will exist in the future."

56 This interference not only disrupts "the free development of religious doctrine" 57 in violation of state neutrality, but undermines one's freedom to live a religious way of life and the ability to pass it on to future generations. Respecting a religious community's autonomy, conversely, "preserves this option of a religious way of life by enabling a group to self-define according to religion." 58

The importance of religious association for preserving religious culture and identity has been stressed by the ECtHR, particularly in the context of minority faiths:

[F]reedom of association is particularly important for persons belonging to minorities [...] "a pluralist and genuinely democratic society should not only respect the ethnic, cultural, linguistic and religious identity of each person belonging to a national minority, but also create appropriate conditions enabling them to express, preserve and develop this identity". Indeed, forming an association in order to express and promote its identity may be instrumental in helping a minority to preserve and uphold its rights. 59

iii. Pluralism in a democratic society

Religious communities are not only essential elements for the realization of individual autonomy; they are themselves intrinsic social goods that produce benefits for the larger community. 60 Their existence is necessary to the proper functioning of democracy itself. 61

Religious communities play an indispensable role in creating and maintaining the social conditions necessary for the free development of citizens' diverse beliefs and opinions, 62 without which "freedom of thought" guaranteed by the UDHR, ICCPR, and s. 2(b) of the Charter would be meaningless.

These freedoms are, in turn, "essential for the development of new and valuable ideas, including for social and political life." 63

The ECtHR has repeatedly held that "the autonomous existence of religious communities is indispensable for pluralism in a democratic society" and that interfering with religious associations harms rather than promotes a democratic society. 64 This is consistent with the jurisprudence of this Court, and s. 27 of the Charter, which affirm Canada's commitment to preserve a pluralistic society "in which the diversity and richness of various cultural groups is a value to be protected and enhanced." 65 As the ECtHR has held:

For pluralism is also built on the genuine recognition of, and respect for, diversity and the dynamics of cultural traditions, ethnic and cultural identities, religious beliefs [...] The harmonious interaction of persons and groups with varied identities is essential for achieving social cohesion. [...] [W]here a civil society functions in a healthy manner, the participation of citizens in the democratic process is to a large extent achieved through belonging to associations in which they may integrate with each other and pursue common objectives collectively. 66

International law overwhelmingly affirms the fundamental freedom of religious groups to determine their own membership, free of State interference. 67 This freedom is necessary to protect the autonomy of believers, the proper functioning of religious institutions, and even democracy itself. 68 It should be not be undermined by expanding courts' jurisdiction beyond their limited role currently permitted by Canadian law, as delineated by Wakeling J.

PARTS IV AND V: SUBMISSIONS CONCERNING COSTS AND ORDER SOUGHT 33. CLF requests that no costs be awarded either for it or against it. CLF takes no position on the disposition of the appeals.

ALL OF WHICH IS RESPECTFULLY SUBMITTED this 4th day of October, 2017

Counsel for the Christian Legal Fellowship PART VI — TABLE OF AUTHORITIES

Source

Paragraph(s) in Factum

Case Law

Canada

Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37 12, 26

Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817

Bruker v Marcovitz, 2007 SCC 54 2

Health Services and Support – Facilities Subsector Bargaining Assn v British Columbia, 2007 SCC 27 6, 11, 18, 25

India v Badesha, 2017 SCC 44 12

Loyola High School v Quebec (Attorney General), 2015 SCC 12 8, 25

Ontario (Attorney General) v Fraser, 2011 SCC 20 6

Pankerichan v Djokic, 2014 ONCA 709 2

R v Hape, 2007 SCC 26 6, 11

R v Keegstra, [1990] 3 SCR 697 31

R v Pharmaceutical Society (Nova Scotia), [1992] 2 SCR 606 12

Reference Re Public Service Employee Relations Act (Alta), [1987] 1 SCR 313

RWDSU v. Dolphin Delivery Ltd, [1986] 2 SCR 573 11

Saskatchewan Federation of Labour v Saskatchewan, 2015 SCC 4 6

SL v Commission scolaire des Chênes, 2012 SCC 7 26

United States v Burns, 2001 SCC 7 12

Valard Construction Ltd v Bird Construction Co, 2016 ABCA 249 5

Wall v Judicial Committee of the Highwood Congregation of Jehovah’s Witnesses, 2016 ABCA 255 2, 3, 4 Source

Paragraph(s) in Factum

European Court of Human Rights

Gorzelik and Others v Poland, No 44158/98 [2004] I ECHR 219 [GC] 28, 31

Hasan & Chaush v Bulgaria, No 30985/96 [2000] XI ECHR 117 [GC] 13, 21, 31

Holy Synod of the Bulgarian Orthodox Church and Others (Metropolitan Inokentiy) v Bulgaria, Nos 412/03 and 35677/04 (16 September 2010)

Károly Nagy v Hungary, No 56665/09 (14 September 2017) [GC] 32

Leyla Sahin v Turkey, No 44774/98, [2005] XI ECHR 173 [GC] 31

Metropolitan Church of Bessarabia and Others v Moldova, No 1, 13, 29 45701/99, [2001] XII ECHR 81

Moscow Branch of the Salvation Army v. Russia, No 72881/01, [2006] XI ECHR 1

Sindicatul “Păstorul cel Bun” v Romania, No 2330/09 [2013] V ECHR 41 [GC]

Svyato-Mykhaylivska Parafiya v Ukraine, No 77703/01 (14 June 2007) 14

Secondary Sources

International Instruments (United Nations)

International Covenant on Civil and Political Rights, GA Res 2200A (XXI), UNGAOR, 1966, Supp No 16, UN Doc A/6316 52

International Economic Covenant on Economic, Social and Cultural Rights, GA Res 2200A (XXI), UNGAOR, 1966, Supp No 16, UN Doc A/6316 49

Universal Declaration of Human Rights, GA Res 217A (III), UNGAOR, 3rd Sess, Supp No 13, UN Doc A/810 (1948) 71 Source

United Nations Reports

Human Rights Committee, General Comment 22, Article 18 (Forty-eighth session, 1993). Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev.1 at 36 (1994).

Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, HR Council, 20th Sess, UN Doc A/HRC/20/27

Views under article 5, paragraph 4, of the Optional Protocol, UNHRC, 90th Sess, Annex, UN Doc CCPR/C/90/D/1296/2004 (2007)

Regional Instruments

Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950, ETS 5, Article 9 and Article 11

OAS, Inter-American Commission on Human Rights, American Declaration of the Rights and Duties of Man, Res XXX, OAS/Ser.L/V/I.4, rev 9 (2003)

Organization for Security and Co-operation in Europe, Concluding Document of the Vienna Meeting 1986 of Representatives of the Participating States of the Conference on Security and Co-Operation in Europe (1989) Source

Paragraph(s) in Factum

Commentary

Kathleen Brady, "Religious Group Autonomy: Further Reflections about What Is at Stake" (2006) 22 J L & Religion 153 at 156.

24, 27, 29, 30

Laycock, Douglas. "Towards a General Theory of the Religion Clauses: The Case of Church Labor Relations and the Right to Church Autonomy" (1981) 81 Colum L Rev 1373 at 1391

Norton, Jane Calderwood. The Freedom of Religious Organizations (Oxford: Oxford University Press, 2016)

1, 17, 19, 23, 27

Oliphant, Benjamin J. "Interpreting the Charter with International Law: Pitfalls and Principles" (2014) 19 APPEAL 105 at 126

Rivers, Julian. The Law of Organized Religions (Oxford: Oxford University Press, 2010)