The Appeals of BC Supreme Court Justice Stephen Kelleher's November 25th, 2009 and June 29th, 2010 Reasons for Judgment in the cases of disputed church properties and court costs began last Monday, September 13th and concluded Thursday September 16th. Diocese of New Westminster Communication's Officer Emeritus, Neale Adams covered the trial for Diocesan Communications. Neale's reports are posted on the Trial News page of the website.
Neale Adams was the Communications Officer for most of the last decade and has covered this issue extensively. He began his career in journalism, broadcast journalism, educational television administration, and communications as a court reporter. Diocesan Communications is grateful to Neale for taking some time out to share his skills and experience with the diocese. The following is Neale's summary of the three and a half day trial.
TRIAL SYNOPSIS by Neale Adams
TRIAL SYNOPSIS by Neale Adams
It will likely be several months before the BC Court of Appeal gives its opinion as to whether four congregations which left the Diocese in the spring 2008 can continue to hold on to their church buildings.
Lawyers for the Diocese, and for the congregations that have joined the Anglican Network in Canada (ANiC), were heard by a three-judge panel for four days, Sept. 13 to 16.
The four congregations—St . John’s Shaughnessy, Good Shepherd, and St. Matthias & St. Luke, all in Vancouver, and St. Matthews, Abbotsford—lost the first round of the legal battle in a lower court last year.
Judge Stephen Kelleher after a trial ruled that because the Act of the BC Legislature established the Diocese is 1893 (amended in 1961) says church properties cannot be sold or disposed of without the consent of Bishop Michael Ingham and Diocesan Council, the congregations cannot keep the buildings and continue in the ANiC.
In so doing, the lower court judge accepted the Diocese’s “church governance approach” in deciding the case. Judge Kelleher ruled that a “neutral” application of the statute law passed by the legislature was “sufficient to resolve the issue.”
Before the Appeal Court, the lawyer for the four congregations, Geoffrey Cowper, QC, replied that Judge Kelleher had taken the entirely wrong approach. Church buildings are held in trust for the congregations that use them, he said; it is the duty of the Courts to see that this implied “religious purposes trust” is carried out.
The Appeal Court has to take notice of the religious aspect of the dispute, Cowper claimed, because Canadian law is different from American law, which insists upon a very strict separation of church and state.
The lawyer said he wasn’t asking the Appeal Court to wade into religious issues and decide who is right or who is wrong. “Don’t worry,” replied one of the judges on the panel. “We won’t do that!”
However, Cowper continued, the religious trust is “frustrated” because of the “theological innovation” of the blessing of same sex unions, and the congregations feel cannot continue under Bishop Ingham. But they can and will fulfill the trust if allowed to use the buildings.
The lawyer for the Diocese, George Macintosh, Q.C., agreed with the lower court judge’s ruling that the Court doesn’t need to wade into the complexities of the law of trusts to decide the case.
But if there is a trust, he replied, it is one in which the properties are held on trust for Anglican Ministry “as defined by the Anglican Church of Canada.” That was also the lower court’s ruling.
Meanwhile the four congregations continue to use the buildings. Good Shepherd leased its building to a non-Anglican church, and in turn uses that group’s larger building. At St. Matthew’s, Diocesan-led worship is taking place in the Parish Hall at St. Matthew’s on Sundays at 8 am on Sundays after a court order from Judge Kelleher.
In addition to the main issue, the Appeal Court heard submissions as to who should get a $2.2 million bequest left to Good Shepherd parish. Judge Kelleher ruled that the ANiC congregation should; the Diocese is appealing and claims it should be left with the diocese.
Lawyers for the Diocese, and for the congregations that have joined the Anglican Network in Canada (ANiC), were heard by a three-judge panel for four days, Sept. 13 to 16.
The four congregations—St . John’s Shaughnessy, Good Shepherd, and St. Matthias & St. Luke, all in Vancouver, and St. Matthews, Abbotsford—lost the first round of the legal battle in a lower court last year.
Judge Stephen Kelleher after a trial ruled that because the Act of the BC Legislature established the Diocese is 1893 (amended in 1961) says church properties cannot be sold or disposed of without the consent of Bishop Michael Ingham and Diocesan Council, the congregations cannot keep the buildings and continue in the ANiC.
In so doing, the lower court judge accepted the Diocese’s “church governance approach” in deciding the case. Judge Kelleher ruled that a “neutral” application of the statute law passed by the legislature was “sufficient to resolve the issue.”
Before the Appeal Court, the lawyer for the four congregations, Geoffrey Cowper, QC, replied that Judge Kelleher had taken the entirely wrong approach. Church buildings are held in trust for the congregations that use them, he said; it is the duty of the Courts to see that this implied “religious purposes trust” is carried out.
The Appeal Court has to take notice of the religious aspect of the dispute, Cowper claimed, because Canadian law is different from American law, which insists upon a very strict separation of church and state.
The lawyer said he wasn’t asking the Appeal Court to wade into religious issues and decide who is right or who is wrong. “Don’t worry,” replied one of the judges on the panel. “We won’t do that!”
However, Cowper continued, the religious trust is “frustrated” because of the “theological innovation” of the blessing of same sex unions, and the congregations feel cannot continue under Bishop Ingham. But they can and will fulfill the trust if allowed to use the buildings.
The lawyer for the Diocese, George Macintosh, Q.C., agreed with the lower court judge’s ruling that the Court doesn’t need to wade into the complexities of the law of trusts to decide the case.
But if there is a trust, he replied, it is one in which the properties are held on trust for Anglican Ministry “as defined by the Anglican Church of Canada.” That was also the lower court’s ruling.
Meanwhile the four congregations continue to use the buildings. Good Shepherd leased its building to a non-Anglican church, and in turn uses that group’s larger building. At St. Matthew’s, Diocesan-led worship is taking place in the Parish Hall at St. Matthew’s on Sundays at 8 am on Sundays after a court order from Judge Kelleher.
In addition to the main issue, the Appeal Court heard submissions as to who should get a $2.2 million bequest left to Good Shepherd parish. Judge Kelleher ruled that the ANiC congregation should; the Diocese is appealing and claims it should be left with the diocese.