Canadian Appeal Court decision made the news: Judges can overturn unfair church edicts
The other day, this court decision was posted on JWN along with a link to the court document, but few expected the media to pick up the story. So to all involved, I understand it was a surprise to see the story in print. Personally, I found the National Post's reporter's comments very interesting.
"Courts can overturn religious edicts when churches act unfairly, according to the Alberta Court of Appeal, which has allowed a Calgary real estate agent to challenge his shunning, or “disfellowship,” from a community of Jehovah’s Witnesses.
But the court’s decision was split, 2-1, as the dissenting judge decided the church is less like a public company and more like a private “bridge club,” which may choose whomever it pleases as a member. That means the case may now be appealed to the Supreme Court, which last addressed this issue 25 years ago when it sided with a man expelled from a Hutterite colony." READ MORE:
Wow. This is really surprising. I can't see that ever happening in America.
And I can't see how it would work to reverse a shunning edict. Sure, I suppose they could "reverse" a disfellowshipping, I guess, but how are they going to enforce a "no shunning order". I can't see how they can make a group of people not shun a person. The society would simply change it to a "conscience matter" and everybody would shun the person anyway. And if you don't, they might take away your mike privileges!
The fundamental mistake the Watchtower and governing body has made is rearranging the appointment date of the "faithful and discreet slave" by placing it after the formation of the Watchtower corporation and not before as it traditionally was. This makes the JW religion a tool of the Watchtower and not the other way around. The net result being the Watchtower controls the religion and as such the actions of the religion are in fact the policy directions of the Watchtower corporation.
The dissenting judge was technically wrong in this case as a so-called private "bridge club" that, for example, operates under the auspices and total control of a casino corporation and its board and with all financial proceeds given to the casino, is not private club. However, a congregation is not a private association. If it was really private then it could not qualify for charity status as it only exists to serve itself and its members and would not pass a public benefit test, keeping in mind the preaching work is now classified as a JWs private and personal ministry and not the charity work of the congregation. The Watchtower has dodged a bullet here as a win for them could have ultimately revoked their charity status as well.
Here's hoping the Watchtower appeals to the Supreme Court and wins thereby establishing itself by its own arguments that all congregations are private and not public.
Wow. This is really surprising. I can't see that ever happening in America.The principle exists in the US where if a 'shunning' by a community impacts upon your business then there is potentially a case to be heard by a court. (eg Bear v. Reformed Mennonite Church, Pennsylvania, 1975). But, you're right, more often civil law isn't keen at all to intervene in cases like this. We may disagree with the parallel drawn about a religious community being like a private members' club, but that is how they have been treated for things like this for a very long time across a number of jurisdictions. A court can't force people not to shun someone.
Will be interesting to see what practical remedy is suggested by the Canadian courts should they ultimately rule in this man's favour.
The strongest point in this judgment is that a corporation is setting the guidelines for shunning, #3 Associating with disfellowshipped people including;
- Friends - ks91-E p.103, w81 9/15 pp.25-6, w55 10/1 p.607
- Family - ks91-E p.103
Even if this is up held by the Supreme Court, like another poster mentioned the WT would just drop the official DFing but make it a conscience matter but then all they would have to do is get word around the congregation that this person is a "bad associate" and the good dubs would fall into line and shun them.
If they make disfellowshipping a conscience matter, I would be satisfied. This would automatically leave the door wide open to family members and close friends to keep a certain relationship with the disfellowshiped.
Lets not kid ourselves here. It is difficult to find things in common with JWs when their lives revolve around either work or religion. So, this lack of things in common where one of the parties believe that the other might be destroyed by God "very soon" is obviously never going to be a healthy relationship. Yet, for the very lease, much better than complete shunning.
I don't believe that the nature of relationships can be dictated by some law. But I do believe that the government could make it unlawful for religion to enforce shunning through sever religious discipline.
What the court is going to do in this case is put the elders' JC process under scrutiny.
The court will look at whether or not the JWs' judicial process follows natural justice principles.
The judicial hearings that the elders hold do not pass the sniff test and I think they will have a difficult time in court proving that their process is fair and unbiased.
The principles of natural justice concern procedural fairness and ensure a fair decision is reached by an objective decision maker. Maintaining procedural fairness protects the rights of individuals and enhances public confidence in the process.
The shunning is a consequence of the elders' actions in their JC and it is the JC itself that will come under the microscope. This is a very good thing as we all know that the JCs that the elders hold are kangaroo courts that do not give the accused the right of full disclosure, the right of representation, and the right to an objective decision maker.
This court case is happening in Canada, not the States. We are not governed by the constitution of the United States, we are governed by the Charter of Rights and Freedom. The Canadian Charter does not give a religion the freedom to oppress.
This case will have less to do with the shunning that arose from the JC and more to do with whether or not Mr. Wall's civil rights were upheld in the elders' judicial process itself. The elders will be held responsible for the consequences of their action of disfellowshipping based on whether or not their process to arrive at that decision followed natural justice rules.
These are the points on which the JWs judicial hearing fails natural justice rules (thank you to a reddit poster for this list) This is what is at issue:
1) The Judicial Meeting did not follow any rules of natural justice. Highwood did not afford, inter alia, the Applicant:
a) Notice of any kind, but certainly not any form of proper notice;
b) No disclosure of evidence was provided, accordingly, the Applicant could not know the case he was required to answer (Suresh http://www.canlii.org/en/ca/scc/doc/2002/2002scc1/2002scc1.html?autocompleteStr=suresh&autocompletePos=1 );
c) No list of witnesses was provided, nor was there any opportunity to cross-examine them or test the veracity of their statements;
d) The chairman was in a position of conflict of interest on the basis of prior association (Marques v Dylex http://www.canlii.org/en/on/onsc/doc/1977/1977canlii1157/1977canlii1157.html?resultIndex=1 ), accordingly he had a reasonable apprehension of bias;
e) Legal or other representation was forbidden;
f) No support individual was made available before, during or after the proceeding;
g) Note-taking or recording of the proceeding was forbidden;
h) The possible outcome was not disclosed;
i) No hearing rules or by-laws were provided; and,
j) No rules or by-laws outlining membership requirements and expulsion procedures were provided.
If a private “bridge club” mandated shunning of former members, then I would hope the court system would come to a similar decision.
I don’t know of anybody who has ever been kicked out or left a bridge club and committed suicide because of being severed by all their family and friends.
More and more, the Canadian, Australian, and UK legal systems are showing themselves lightyears beyond the US.