On April 13, 2017, the Supreme Court of Canada granted leave in Wall v. Highwood Congregation of Jehovah's Witnesses (Judicial Committee). The hearing of the appeal in the Supreme Court has been tentatively set for November 2, 2017, meaning that a decision is likely in 2018. In reasons released in September 2016, the Alberta Court of Appeal delivered a split decision on whether the court had jurisdiction to hear an application for judicial review of the appeal committee of an unincorporated religious organization. The committee had upheld an internal process expelling the applicant, Randy Wall, from membership in the organization and shunning him. For our analysis of the Alberta Court of Appeal majority and minority reasons, see Two Views on the Justiciability of Decisions of Religious Organizations.
Randy Wall and others in his family were members of the Highwood Congregation of Jehovah's Witnesses, an unincorporated religious organization based in Calgary. Wall had been a member for 34 years, until his expulsion in 2014. His 15 year-old daughter had earlier been expelled by the congregation. Church doctrine requires that congregation members shun an expelled individual, which meant that Mr. Wall and his wife were required to shun their own daughter. That in turn drove her from their home.
This event created severe hardship on the family, including Mr. Wall who, on two occasions, became drunk and, on one occasion verbally abused his wife. He admitted these wrongdoings before the judicial committee of the congregation which, however, decided to expel him because it determined that he was insufficiently repentant. An appeal committee composed of three elders chosen from three neighbouring congregations upheld the decision. No further appeal within the church was available to Mr. Wall.
Hence, he brought an application for judicial review before the Alberta Court of Queen's Bench, which held that it did indeed have jurisdiction to hear the application. The congregation appealed that decision to the Court of Appeal. The issue before the courts was strictly jurisdictional. The courts have not addressed the merits of the application for judicial review.
A majority of the three-judge panel of the Court of Appeal ruled in favour of Mr. Wall. However, there is also a strong, scholarly dissent from Wakeling, J.A. (comprising 112 paragraphs and 110 footnotes, most of which are copious).
(a) Majority Decision
The majority held that a court will interfere in the internal affairs of a religious organization only where: (i) the organization's internal processes are unfair or do not meet the requirements of natural justice; or (ii) the aggrieved party has exhausted the organization's internal processes. In the latter case, the reviewing court will not consider the merits of the internal decision but will determine only whether it was carried out in accordance with the organization's rules and the requirements of natural justice.
Mr. Wall raised several complaints regarding the process used by the organization to expel him. Without deciding the merits, the majority found that the lower court had jurisdiction to hear the application.
(b) Minority Decision
In dissent, Wakeling, J.A. viewed the expulsion of a member as a private matter, not subject to judicial review. The congregation is not governed by statute and makes no decisions that have any consequences for members of the public.
Fundamental constitutional principles (particularly, the constitutional protection of freedom of conscience and religion enshrined in the Canadian Charter of Rights and Freedoms) give members of a religious organization the right to determine their own co-religionists. Mr. Wall does not have the right to belong to the congregation if its members do not want to associate with him.
Justice Wakeling also found that the congregation's decision to expel Mr. Wall did not affect his civil or property rights.
3. Key Observations
The facts of the case are compelling and at the personal level tend to cry out for judicial intervention to prevent Mr. Wall's expulsion from the church. The expulsion of his 15 year-old daughter from the church, the requirement that she be shunned even by her own family and her departure from the family home would have caused unbearable strain within any devout family.
With respect, however, to whether judicial review should be available to an expelled member of an unincorporated church, the Supreme Court may be drawn to the minority decision as a jurisprudential matter. The church is a private institution, and ordinary courts are not equipped to render decisions on the application of tenets of faith. The decision to expel Mr. Wall was a private decision. If members of a religious organization do not wish to associate with an individual (especially after admitted wrongdoing), it seems unwise for courts to weigh in. Even if Mr. Wall succeeds in his application for judicial review, it does not mean that he will be welcomed back by the other members. The rupture between Mr. Wall and the congregation may be irreparable - or at least not reparable by the courts. As Justice Wakeling concluded, the decision to expel Mr. Wall does not appear to raise a justiciable issue.