The lawyer for four congregations that have left the Diocese of New Westminster on Thursday asked the BC Court of Appeal to endorse a plan he outlined so that his clients might continue worshipping as Anglicans in the church buildings they have been using for years.
On the last day of a four-day hearing, Geoffrey Cowper, Q.C., lawyer for the four defecting congregations made final arguments in an attempt to reverse the decision of a lower court judge last year who ordered that the properties, collectively worth millions, should stay with the Diocese.
After a trial last year in a lower court, Judge Stephen Kelleher ruled the properties could only be used for the ministry of the Anglican Church of Canada.
In 2008 the four congregations– St. John’s Shaughnessy, Good Shepherd, and St. Matthias & St. Luke, all in Vancouver, and St. Matthews, Abbotsford— left the Diocese, the local branch of the Anglican Church of Canada, and joined the Anglican Network in Canada (ANiC). The split arose five years after Bishop Michael Ingham at his Diocesan Synod’s request authorized a rite to bless the union of same sex couples.
The lower court ruling was based primarily on a section of the 1893 provincial legislation that established the Diocese, as amended in 1961. It says that the Bishop and the Diocesan Council must consent before any parish can “mortgage, sell, or otherwise dispose of” property.
There was no consent, so the properties remain with the Diocese, Judge Kelleher ruled: “This is sufficient to resolve the issue.”
During the entire four-day hearing, Cowper strongly argued before the three member panel of judges hearing the case that the lower court judge was wrong, and should have considered the law of religious trusts more thoroughly. The properties are still held by the parish trustees in an “implied religious purposes trust” for the Anglicans in the four congregations, he insisted, a point which the Diocese’s lawyers did not dispute.
Although the trustees, along with all the members of the four congregations, left the Anglican Church of Canada two years ago, Cowper insisted they are still Anglican. They still have a bishop (although not Bishop Ingham), they still use the Anglican prayer book, and they still believe they are connected to the Anglican Communion through an arrangement with a South American bishop, he said.
One of the appeal court judges, Madam Justice Nicole Garson asked Cowper: “It seems to me you want us to ignore the structures of the Church and the [statute] law... Are you saying we should just look at this [case] as a trust issue?”
Cowper replied that the implied trust determines that the property is held for Anglicans who subscribe to fundamental Anglican doctrine and practice, and are in the Anglican Communion—not just for Anglicans who happen to be in the Diocese or the Anglican Church of Canada.
The lawyer for the congregations said that the diocese’s lawyers were wrong on Wednesday when they defined the Church as only the Anglican Church of Canada, “stopping at the Canadian boundary.”
By its own choice [the Anglican Church] is defined as a world wide body,” Cowper insisted. “The legally important argument is that they [the congregations] have not left that Anglican Church.”
Cowper said that the dissident congregations are still within the Anglican Communion because they still have connections through sympathetic bishops such as Bishop William Anderson of the Diocese of Caledonia, and had submitted to the authority of the Primate of the Southern Cone, Archbishop Gregory Venables.
The lawyer admitted that Archbishop of Canterbury Rowan Williams strongly disapproved of Archbishop Venables taking charge of Anglicans outside of South America, but even the Archbishop of Canterbury, head of the Anglican Communion, couldn’t do anything about it.
“No one can tell Bishop Venables that he cannot extend his authority here,” said Cowper.
While the members of the congregations find the blessing of same sex unions unacceptable, in all other ways they are similar to what members of Anglican Church of Canada parishes do under Bishop Ingham. “It’s almost invisible to an outsider what the difference might be,” he asserted.
As for the provincial legislation, Cowper said that the congregations involved had no intention to sell their properties, and would be willing to live with New Westminster Bishop Michael Ingham and the Diocesan Council having veto power over their future sale.
If the lower court’s ruling stands, the congregations will in effect be turned out of their church buildings since they hold the sincere belief they cannot continue with the Diocese and Bishop Ingham.
However, said Cowper, the Appeal Court can “rescue” the religious purposes trust by ordering the following:
On the last day of a four-day hearing, Geoffrey Cowper, Q.C., lawyer for the four defecting congregations made final arguments in an attempt to reverse the decision of a lower court judge last year who ordered that the properties, collectively worth millions, should stay with the Diocese.
After a trial last year in a lower court, Judge Stephen Kelleher ruled the properties could only be used for the ministry of the Anglican Church of Canada.
In 2008 the four congregations– St. John’s Shaughnessy, Good Shepherd, and St. Matthias & St. Luke, all in Vancouver, and St. Matthews, Abbotsford— left the Diocese, the local branch of the Anglican Church of Canada, and joined the Anglican Network in Canada (ANiC). The split arose five years after Bishop Michael Ingham at his Diocesan Synod’s request authorized a rite to bless the union of same sex couples.
The lower court ruling was based primarily on a section of the 1893 provincial legislation that established the Diocese, as amended in 1961. It says that the Bishop and the Diocesan Council must consent before any parish can “mortgage, sell, or otherwise dispose of” property.
There was no consent, so the properties remain with the Diocese, Judge Kelleher ruled: “This is sufficient to resolve the issue.”
During the entire four-day hearing, Cowper strongly argued before the three member panel of judges hearing the case that the lower court judge was wrong, and should have considered the law of religious trusts more thoroughly. The properties are still held by the parish trustees in an “implied religious purposes trust” for the Anglicans in the four congregations, he insisted, a point which the Diocese’s lawyers did not dispute.
Although the trustees, along with all the members of the four congregations, left the Anglican Church of Canada two years ago, Cowper insisted they are still Anglican. They still have a bishop (although not Bishop Ingham), they still use the Anglican prayer book, and they still believe they are connected to the Anglican Communion through an arrangement with a South American bishop, he said.
One of the appeal court judges, Madam Justice Nicole Garson asked Cowper: “It seems to me you want us to ignore the structures of the Church and the [statute] law... Are you saying we should just look at this [case] as a trust issue?”
Cowper replied that the implied trust determines that the property is held for Anglicans who subscribe to fundamental Anglican doctrine and practice, and are in the Anglican Communion—not just for Anglicans who happen to be in the Diocese or the Anglican Church of Canada.
The lawyer for the congregations said that the diocese’s lawyers were wrong on Wednesday when they defined the Church as only the Anglican Church of Canada, “stopping at the Canadian boundary.”
By its own choice [the Anglican Church] is defined as a world wide body,” Cowper insisted. “The legally important argument is that they [the congregations] have not left that Anglican Church.”
Cowper said that the dissident congregations are still within the Anglican Communion because they still have connections through sympathetic bishops such as Bishop William Anderson of the Diocese of Caledonia, and had submitted to the authority of the Primate of the Southern Cone, Archbishop Gregory Venables.
The lawyer admitted that Archbishop of Canterbury Rowan Williams strongly disapproved of Archbishop Venables taking charge of Anglicans outside of South America, but even the Archbishop of Canterbury, head of the Anglican Communion, couldn’t do anything about it.
“No one can tell Bishop Venables that he cannot extend his authority here,” said Cowper.
While the members of the congregations find the blessing of same sex unions unacceptable, in all other ways they are similar to what members of Anglican Church of Canada parishes do under Bishop Ingham. “It’s almost invisible to an outsider what the difference might be,” he asserted.
As for the provincial legislation, Cowper said that the congregations involved had no intention to sell their properties, and would be willing to live with New Westminster Bishop Michael Ingham and the Diocesan Council having veto power over their future sale.
If the lower court’s ruling stands, the congregations will in effect be turned out of their church buildings since they hold the sincere belief they cannot continue with the Diocese and Bishop Ingham.
However, said Cowper, the Appeal Court can “rescue” the religious purposes trust by ordering the following:
· The current parish trustees, who are members of the dissident congregations, are given the right to direct the use of the buildings.
· The trustees may not be dismissed by the Bishop or Diocese.
· The trustees are given the ability to employ clergy who will serve under a Bishop who is not Bishop Ingham.
· The trustees are restrained from leaving the Anglican Communion.
· Finally, the trustees are restrained from selling the properties without the consent of Bishop Ingham.
In legal terms what Cowper called for is called a cy-près scheme; the term is Norman French and means “as near as possible.”
The plan drew a question from one of the panel of three Appeal Court judges. Mr. Justice P.D. Lowry asked, “Would this then make the parish trustees independent of [the Diocesan] Bishop in all respects save the disposition of property?” Cowper agreed it would.
Arguments were also made Thursday in a companion case involving the bequest of Dr. Daphne Wai-Chan Chun of Hong Kong to the Good Shepherd parish, with interest now worth $2.2 million. Judge Kelleher ruled that it should go to the dissenting congregation, even though it has left the diocese.
Lawyer Stanley Martin argued that the ruling should stand and Good Shepherd get the money—even though she left it to the parish, not the congregation, for the building needs of Chinese Anglicans—because that would best fulfill the intent of Dr. Chun’s will. She died in 1992.
Letting the Diocese have the money would mean “the money would only sit in a bank account,” since most Chinese Anglicans have left the Diocese, Martin said.
George Macintosh, Q.C., replying, said there might be no need for a building specifically for Chinese Anglicans in the foreseeable future, but cited case law that the lawyer said indicated there was no requirement that the Diocese spend the money immediately, just that it be spent in line with the bequest’s “charitable intent.”
When the lawyers had finished their arguments, the senior judge on the panel, Madame Justice Mary Newbury, thanked them all for their “diligence” and announced the Court would reserve its judgment. No indication was give as to when a decision might be issued, but it will likely take several months.