Notable Case Law

Religious groups do not need to have the same fair procedures as public bodies, the Supreme Court has unanimously ruled. Also, courts can not interfere with their decisions on purely religious questions.

The Highwood Congregation of Jehovah’s Witnesses is a religious group with about a hundred members in Calgary. To become a member, a person must be baptized and show that s/he understands the religious teachings and lives according to the community’s rules. Anyone who doesn’t follow the rules will be urged to repent (apologize). If the behaviour continues, a committee of at least three elders can decide to expel or “disfellowship” the member. The Congregation calls this committee a “Judicial Committee.”

Randy Wall became a member in 1980. In 2014, the Judicial Committee disfellowshipped him for sinning and not fully repenting. The decision was confirmed by an appeal committee and by the Watch Tower Bible and Tract Society of Canada, the head office of Jehovah’s Witnesses in this country.

Mr. Wall asked the Alberta Court of Queen’s Bench to review the decision. “Judicial review” is when courts look at tribunals’ decisions to make sure they are proper. Courts can only judicially review the decisions of public bodies (set up by the government and acting on its behalf), not private ones. When making decisions, public tribunals must treat everyone fairly and make decisions without bias. This is what is meant by “procedural fairness.”

Mr. Wall argued that the Judicial Committee acted unfairly. He said that the decision caused him to lose money because Jehovah’s Witness clients avoided his real estate business. The lower courts first had to decide whether they had any power (or legal authority) to review the Judicial Committee’s decision to disfellowship. They decided they did, even though the Judicial Committee was not a public decision-maker. They decided this due to the financial impact on Mr. Wall and because the procedure may not have been fair.

Writing for a unanimous Supreme Court, Justice Malcolm Rowe said this was wrong. The courts did not have the power to review the disfellowship decision of a private, religious organization. Mr. Wall didn’t have a right to the Congregation members’ business. He also didn’t have a right to membership in the Congregation that courts could enforce, like a contract. Justice Rowe confirmed that courts can only review the decisions of public decision-makers and that private decision-makers don’t have to follow fair procedures unless an enforceable legal right is at stake. He also confirmed that disagreements about religious principles are “non-justiciable”—that is, not appropriate for courts of law to get involved in.

This decision confirmed that religious groups can decide their own membership and rules. Courts cannot interfere with their decisions, except when needed to resolve an underlying, “justiciable” legal dispute.

Since 1989, a Congregation of Jehovah’s Witnesses in the Town of Lafontaine, Province of Quebec, was looking for a suitable parcel of land on which to build a place of worship. The Town’s zoning authority had zoned four parcels of land for churches and other community-service uses, but all four properties were currently occupied. In 1992, the Congregation applied to re-zone a parcel of land located in a “residential” zone, in the centre of town, for their use. The Town’s zoning authority refused, on the ground this would increase the tax burden on local ratepayers. The Congregation then made two additional applications for a zoning change on a parcel of land located in a “commercial” zone, near the outskirts of town. The Town’s zoning authority categorically refused to consider the applications, gave no reasons for its denial, and claimed an absolute discretion to refuse the zoning variance. The Congregation sought a court order for a “mandamus,” compelling the Town to issue the necessary permits to build their place of worship. The courts of Quebec did not grant the mandamus. The Congregation appealed.

The Supreme Court of Canada remanded the Congregation’s zoning application to the Town’s zoning authority for further action in accordance with four basic principles of municipal law. First, a public authority is bound to exercise the powers conferred upon it fairly, in good faith and with a view to the public interest. Second, freedom of religion includes the right to have a place of worship. Third, state and public authorities have a duty of religious neutrality that assures individual or collective tolerance. Fourth, when the State creates a situation that interferes with the exercise of a freedom, it may be required to take positive steps to put an end to that interference. As established by the judicial decision of Roncarelli v Duplessis, [1959] SCR 121, an arbitrary or capricious decision by a public official cannot be shielded from judicial review. The Town’s zoning authority had acted in a manner that was arbitrary and straddled the boundary separating good faith from bad faith.

[As of today’s date, this decision has been referred to or relied on by other courts 9 times.]

The Town of Blainville in the Province of Quebec enacted a municipal by-law requiring anyone going from door-to-door to obtain a permit. The by-law specifically targeted “visits of a religious character.” The permit cost $25 [Cdn.], and the permit holder was limited to one permit for a two-month period every 12 months. Furthermore, door-to-door visits were allowed only between 10:00 a.m. and 7:30 p.m., during Monday to Friday. This was time most residents of the Town were at work or away from home. The Town relied on provincial legislation that enabled municipalities to make by-laws “to secure peace, order, good government, health and general welfare” and to regulate the distribution of “circulars, advertisements, prospects or other similar printed matters.” Mr. Beauchemin and thirteen others, Jehovah’s Witnesses, were ticketed for violating the Town’s by-law while engaged in proselytizing. They sued to challenge the Town’s law.

The Quebec Superior Court declared the municipal by-law invalid. It is insulting and degrading to liken Jehovah’s Witnesses to commercial peddlers. Jehovah’s Witnesses exchange ideas with citizens on religious subjects that are positive and of common interest and are engaged in “a Christian community service.” There is an implied license for all members of the public to approach the door of a private residence and knock in order to permit suitable communications. There was no evidence of any breach by Jehovah’s Witnesses of domicile or violation of privacy. The door-to-door community service of Jehovah’s Witnesses is a legal exercise of fundamental constitutional freedoms.

The Quebec Court of Appeal [the highest appellate court of the Province of Quebec] confirmed the decision of the Superior Court. First, the quality of life and peace of the citizens of Blainville did not require protection from the community service of Jehovah’s Witnesses. The judicial decision of Saumur v Quebec (City), [1953] 2 SCR 299, establishes that requiring a permit before anyone may go door-to-door to discuss religion with his neighbor violates freedom of expression that is crucial to democracy. Citizens have the right to listen to any message without interference from a “Big Brother” municipal council. Second, the municipal by-law violated the freedom of religion of Jehovah’s Witnesses. As enunciated by the judicial decision of the European Court of Human Rights in Kokkinakis v Greece (1993), 17 E.H.R.R. 397, proselytism is a protected aspect of freedom of religion, subject to such limitations as are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. The practice of Jehovah’s Witnesses to talk with neighbors about the Bible, during the day and mid-week as well as evenings and weekends, does not interfere with any of these necessary restrictions.

Three members of the Committee for the Commonwealth of Canada, a political group, attempted to carry placards, distribute leaflets and engage in other expressive activities inside an airport in the Province of Quebec. Airport officials stopped them and advised that advertising and solicitation were prohibited in the airport by federal law. The political group sued, and the lower court declared their constitutional right to freedom of expression was infringed. The State appealed. [The Supreme Court of Canada granted intervener status (amicus curiae) to Jehovah’s Witnesses to argue in favor of the political group’s legal position.]

The Supreme Court of Canada dismissed the State’s appeal. Freedom of expression cannot be arbitrarily denied in respect of a government-owned airport terminal concourse. The non-security zones within an airport bear the earmarks of a public arena and are in many ways a thoroughfare or contemporary crossroads, a modern equivalent of the streets and by-ways of the past. Such areas can accommodate expression without the effectiveness or function of the place being threatened in any way.

[As of today’s date, this decision has been referred to or relied on by other courts 124 times.]

In 1946, Miss Lamb and three other women engaged in proselytizing activity, distributing religious publications of Jehovah’s Witnesses while standing at a street corner in the Province of Quebec. At the request of a provincial policeman, the four women entered a car occupied by Mr. Benoit, a second policeman. He searched Miss Lamb’s handbag but found nothing objectionable. However, the other three women possessed copies of a printed article called Quebec’s Burning Hate for God and Christ and Freedom, then considered to be a seditious libel. [See Boucher v R., [1951] SCR 265.] Miss Lamb and the other women were driven to police headquarters, where they were all fingerprinted, photographed, and held in custody for two days. As a condition of Miss Lamb’s release, she was directed to sign a statement that she would take no action against the police for having detained her. She refused. Mr. Benoit then directed a third policeman to charge Miss Lamb with publishing a seditious libel and conspiracy to exhibit seditious literature in public and to deliver it from door to door. Miss Lamb sued Mr. Benoit and the two other offices for false arrest and damages. The courts of Quebec dismissed the charges against all three police officers, and Miss Lamb appealed.

The Supreme Court of Canada found Mr. Benoit alone was personally liable in damages for the false arrest, false imprisonment, and malicious prosecution of Miss Lamb. As in the judicial decision of Chaput v Romain, [1955] SCR 834, no provincial laws providing statutory immunity of a public official were available to Mr. Benoit. He acted in bad faith and with malice, knowing the charges against Miss Lamb were false.

[As of today’s date, this decision has been referred to or relied on by other courts 14 times.]

On a Sunday afternoon in 1949, in the Province of Quebec, a group of 30 to 40 persons were quietly and peacefully assembled inside the private home of Mr. Chaput for a religious ceremony of Jehovah’s Witnesses. Mr. Romain was one of three provincial policemen who, wearing uniforms, entered the house without a warrant of any kind, told the presiding minister to stop reading the Bible, ordered everyone to leave, and seized a Bible, hymn books and a number of religious pamphlets. Everyone left in an orderly manner. The officers physically grabbed the presiding minister, drove him to the provincial river-border and placed him on the ferry going to the Province of Ontario. The officers’ written report indicated a local Catholic priest had advised there was to be a religious meeting of Jehovah’s Witnesses at the home of Mr. Chaput, and that a superior officer had given orders to break it up. Mr. Chaput sued the police officers for money damages. The courts of Quebec dismissed Mr. Chaput’s action, and he appealed.

The Supreme Court of Canada awarded compensation to Mr. Chaput. First, there is no state religion in Canada. Second, under federal criminal law, it is a crime for anyone to obstruct or prevent any clergyman from celebrating divine service in any place of worship. Third, police officers that act outside the exercise of their public duty under the provincial police law cannot claim statutory immunity from a suit for damages. The duty of a police officer is to maintain the peace. Once it was ascertained that no violation of the peace was being committed, the police officers could no longer be considered to have acted in good faith and in the exercise of their public duty.

[As of today’s date, this decision has been referred to or relied on by other courts 54 times.]

The City of Quebec had a municipal by-law forbidding the distribution in the streets of any printed material without permission from the Chief of Police. Mr. Saumur, a missionary evangelist of Jehovah’s Witnesses, was arrested and imprisoned under this law because he preached the gospel of God’s Kingdom orally and by distributing printed Bible literature from house to house. Mr. Saumur sued the City of Quebec to attack its municipal by-law as a violation of his religious liberty and worship.

The Supreme Court of Canada declared the municipal by-law invalid and issued an injunction to restrain the City of Quebec from interfering with the distribution of literature by Jehovah’s Witnesses. First, the true purpose of the City’s by-law was not to control the condition of streets, but to impose a censorship upon the distribution of written publications. Second, the federal law of Canada [in 1953] provides for the “free exercise and enjoyment of Religious Profession and Worship without discrimination or preference,” which is a constitutional right of all the people of the country. It is the mode of worship of Jehovah’s Witnesses to spread their views by way of the written word as well as orally, and they had the legal right to do so. Third, according to the statutory division of powers between the federal government and provincial governments in Canada, freedom of worship and freedom of the press are not of the subject matters of provincial legislative jurisdiction. Therefore, the Province of Quebec was not empowered to authorize the City to pass such a by-law restraining freedom of worship and of the press.

[As of today’s date, this decision has been referred to or relied on by other courts 114 times.]

Mr. Boucher was one of Jehovah’s Witnesses, a farmer and “an exemplary citizen” living in the Province of Quebec. He was convicted of “uttering a seditious libel” under federal criminal law, because he distributed a pamphlet headed Quebec’s Burning Hate for God and Christ and Freedom Is the Shame of All Canada. The pamphlet was published by the official publishers for Jehovah’s Witnesses. It was a protest and detailed narrative regarding specific incidents of persecution against Jehovah’s Witnesses in the province, including mob violence, beatings, destruction of Bibles and religious literature, invasions of private homes, disruption of religious services, arrests of unoffending Jehovah’s Witnesses by police, exaction of exorbitant bail, delay in criminal proceedings, prison sentences and heavy fines, and Catholic clergy-instigated bias and animosity on the part of local police, certain public officials and members of the judiciary. The incidents of persecution were “vindictive” for the peaceable activities of Jehovah’s Witnesses, i.e., distributing Bibles and literature on Christian doctrine, holding public lectures to teach religious truth, and conducting religious services in Christian fellowship. The pamphlet concluded with an appeal to the people of Quebec to study and follow the Bible’s teaching of love. The courts of Quebec convicted Mr. Boucher of distributing a “seditious libel,” and he appealed.

The Supreme Court of Canada set aside the conviction and entered a judgment of not guilty. The crime of seditious libel was developed in 17th-Century England and came to be defined as “to raise discontent or disaffection among His Majesty’s subjects or to promote feelings of ill-will and hostility between different classes of them.” This is inadequate as a statement of Canada’s common law. The social assumptions and fundamental conceptions of government underlying this definition are different from those of modern democratic government. New conceptions of government call for new jural conclusions. The right of free public discussion upon all matters affecting the State and its government and the administration of justice have long since become firmly established in Canada, subject only to the restraints imposed by the laws of defamation and contempt of court. Therefore, proof of a “seditious” intention must be founded on evidence of incitement to violence, public disorder or unlawful conduct against the institutions of the government. Mr. Boucher had adopted as true the statements in the pamphlet and had distributed it in good faith with the desire to establish peace. There was no evidence that the facts set out in the pamphlet were untrue.

[As of today’s date, this decision has been referred to or relied on by other courts 49 times.]

Robert and Graham were school children who attended public school in the City of Hamilton. In 1940, when the boys were aged 12 and 8 respectively, they were suspended from school because they refused to sing the national anthem, to repeat the pledge of allegiance, and to salute the flag. Instead, they stood respectfully and caused no disturbance. The boys and their father, Mr. Donald, objected to such patriotic exercises because of their religious beliefs as Jehovah’s Witnesses. The expulsions were approved or authorized by the Hamilton Board of Education. Mr. Donald sought a court declaration that his sons were entitled to attend the Board’s schools and to refrain from the patriotic exercises, as well as damages for private tuition and books. The lower court denied the relief sought and held the Board had a duty to require pupils to join in such patriotic exercises. Mr. Donald appealed.

The Ontario Court of Appeal [the highest appellate court of the Province] granted all relief requested by Mr. Donald. Provincial statute excuses pupils in public school from joining in exercises of religion or devotion to which they or their parents object. The statute does not define or specify what such exercises are. It is not for a court to say that the patriotic exercises at issue had no religious or devotional significance, when Mr. Donald and his sons conscientiously believed such were an idolatrous form of worship incompatible with their faith.

G. (J.) was an indigent mother of three young children. Under provincial child-protection law, the children were placed in the care of the Minister of Health and Community Services [provincial child-protection authority]. After the mother was denied state-funded counsel by the “legal aid” system, a lawyer volunteered to represent the mother “pro bono” [at no charge] to oppose the Minister’s application to extend his wardship of the children. The mother also filed a motion asking that the Minister provide her with funds for counsel and a declaration the provincial legal-aid system had violated her constitutional rights. The parties agreed that, in the best interests of the children, the lower court would consider the Minister’s application to extend wardship and then the mother’s motion. During a 3-day hearing, the Minister presented affidavits from 15 witnesses, as well as two reports by psychological experts. The mother’s motion for state-funded counsel was dismissed. The mother appealed. [The Supreme Court of Canada granted intervener status (amicus curiae) to Jehovah’s Witnesses to argue in favor of the mother’s legal position.]

The Supreme Court of Canada allowed the appeal. When child-protection proceedings are as serious and complex as the case at bar, the provincial government is under an obligation to provide the parent with state-funded counsel. First, State removal of a parent’s child is a serious interference with the psychological integrity of the parent and constitutes a serious infringement of the parental “liberty” interest, as enunciated in the Court’s judicial decision of B. (R.) v Children’s Aid Society of Metropolitan Toronto, [1995] 1 SCR 315. Second, child-protection proceedings are a gross intrusion into the private sphere of the family, because the State makes pronouncements on a parent’s fitness, pries into the intimacy of the parent-child relationship, and usurps the parental role. A combination of stigmatization, loss of privacy, and disruption of family life are sufficient to constitute a restriction of the parent’s “security of the person” protected by the Canadian Charter of Rights and Freedoms. Third, restriction of this constitutional right must be in accordance with principles of fundamental justice, which includes effective parental participation in court proceedings. If parents are denied the opportunity to participate effectively at the hearing, the judge may be unable to make an accurate determination of the child’s best interests. The necessity for parents to be represented by counsel is directly proportional to the seriousness and complexity of the proceedings and inversely proportional to the parent’s capabilities.

[As of today’s date, this decision has been referred to or relied on by other courts 218 times.]

S. (L.) was a mother who had custody of a 5-year-old boy, whose father S. (C.) had generous access rights. The father applied to court to obtain custody, based on his fear the child would be indoctrinated in the mother’s faith, that of Jehovah’s Witnesses. The trial judge confirmed custody to the mother, but imposed restrictions on her religious activities with the child, forbidding continual indoctrination, attendance at religious meetings and proselytizing. The appellate court of Quebec upheld the restrictions, and the mother appealed.

The Supreme Court of Canada removed all of the religious restrictions. Based on the evidence, the best interests of the child had not been compromised by the religious practices of the custodial parent.

[As of today’s date, this decision has been referred to or relied on by other courts 6 times.]

In divorce proceedings, Mrs. Young sought custody of three daughters, then being the ages of 8, 6 and 1. Based on her “undisguised loathing” for Mr. Young’s faith, that of Jehovah’s Witnesses, she also sought restrictions on his access to enjoin him from inculcating his children in his faith. The lower court granted custody to Mrs. Young and imposed religious restrictions on Mr. Young’s access, forbidding private religious discussions, taking the children to any religious services or proselytizing activities, and being in the presence of co-religionists. Mr. Young appealed.

The British Columbia Court of Appeal [the highest appellate court of the Province] nullified the religious restrictions. First, as stated in the judicial decision of Bennett Infants, [1952] O.W.N. 621 (Ont. C.A.), no court in Canada can have a view that favors one religious belief against another. Second, courts of Canada have an obligation to develop the common law in a manner that is consistent with constitutional values, including freedom of religion. To achieve this, courts must maintain a role which permits no qualitative evaluation of any religious belief, except in the rare case where there is expert evidence of real harm caused to the child by the doctrine. Evidence related to the tenets of the Jehovah’s Witness faith, which Mrs. Young persistently sought to bring before the lower court, was properly excluded as clearly irrelevant. Third, it was not unlawful for fellow Jehovah’s Witnesses, motivated by charity and religious sympathy, to give Mr. Young financial support to respond to the “religious war” instigated by Mrs. Young. Similarly, the power of courts in civil cases to visit costs on counsel for conduct of a trial must be most sparingly exercised lest it inhibit or prevent counsel representing his client fearlessly.

The Supreme Court of Canada affirmed the decision of the Court of Appeal. First, it has long been the common law of Canada that courts will not prefer one religion over another in the adjudication of custody disputes. Second, under Canada’s divorce law, the criterion for determining limits on access to a child is the “best interests of the child.” The court order imposing religious restrictions departs from the best interests test in three respects. It placed undue emphasis on the custodial parent’s wishes, it ignored the statutory directive to ensure maximum contact between children and both parents, and it was not supported by the evidence. A custodial parent has no right to limit an access parent’s ability to share religious views and practices with one’s own child, unless evidence shows that it is not in the child’s best interests. Third, the analysis by the Court of Appeal on costs was “entirely satisfactory.”

[As of today’s date, this decision has been referred to or relied on by other courts 669 times.]

Baby Sheena was born 4 weeks prematurely and had many ailments. Her parents were Jehovah’s Witnesses and objected to blood transfusions. The parents authorized all treatments that were recommended, and for 5 weeks the doctors avoided the use of blood in Baby Sheena’s care. On short notice to the parents, the Children’s Aid Society [provincial child-protection authority] sought a court order for the wardship of Sheena under Ontario’s child-protection law. At the hearing, a doctor gave evidence that Baby Sheena’s life was in danger from congestive heart failure and that a blood transfusion was necessary. However, the doctor failed to disclose he had received a contrary opinion from a cardiologist that no congestive heart condition existed. The provincial court granted wardship to the Children’s Aid Society, and at review hearings the court extended the wardship to a period of 6 weeks. Baby Sheena eventually received a blood transfusion during eye surgery. The parents appealed on the ground that the wardship procedure violated their constitutional rights.

The Supreme Court of Canada held there was an interference with parental rights but justified because there was a judicial proceeding with notice to and a hearing for the parents. The Court held that freedom of religion under the Canadian Charter of Rights and Freedoms guarantees the right of parents to choose medical treatment for their infant children according to their religious beliefs, and a state wardship order is a serious infringement of this right. To balance the interests of the State and the individual, the Charter requires that infringements of religious freedom must be “a reasonable limit prescribed by law and demonstrably justified in a free and democratic society.” The State’s interest in protecting children at risk is a pressing and substantial objective. The State may assume parental rights, not when a medical professional thinks it is necessary, but only when a judge determines that parents are not providing their child with medical treatment that is necessary and for which there is no reasonable medical alternative.

Further, the right of parents to make medical decisions for their infant children is part of their parental “liberty” interest protected by the Charter. Parental decision-making must have Charter protection in order for State interference to be properly monitored by the courts. The State may intervene to safeguard a child’s life, health or well being, but such intervention must be justified and necessity must be proved. Further, an infringement of parental liberty must be in accordance with the “principles of fundamental justice.” These require fair procedure, including reasonable notice, assistance of counsel, an adversarial court process to present evidence and cross-examine witnesses, and full access to information. Fair procedure must have effect before, and not following, the action invasive of the parents’ rights.

[As of today’s date, this decision has been referred to or relied on by other courts 150 times.]

Mrs. Malette suffered serious injuries in a motor accident and was rushed unconscious to hospital. A nurse discovered in Mrs. Malette’s purse a signed card (but not dated or witnessed), essentially stating: “As a Jehovah’s Witness, I refuse blood.” The nurse so advised Dr. Shulman, then attending to Mrs. Malette. Disregarding Mrs. Malette’s instructions, Dr. Shulman personally administered blood transfusions to her. After recovering, Mrs. Malette successfully sued Dr. Shulman on the ground of assault and battery. The trial court awarded Mrs. Malette $20,000.00 damages. Dr. Shulman appealed.

The Ontario Court of Appeal [the highest appellate court of the Province] confirmed civil liability of Dr. Shulman for violating Mrs. Malette’s rights over her own body and awarded Mrs. Malette money damages. First, the right of self-determination encompasses both acceptance and refusal of medical treatment. A person’s right to determine his or her own medical treatment is paramount to a doctor’s obligation to provide needed medical care. Even in an emergency, a doctor is not free to disregard a competent person’s choice, whether made known contemporaneously or in advance. Second, the card was a valid advance directive made by a competent person. The fact that the card is carried by a person can be taken as verification of the person’s current decision regarding a specific medical procedure. Third, recognition of the right to reject medical treatment cannot be said to depreciate the interest of the State in life. To deny individuals freedom of choice with respect to their health care can only lessen, and not enhance, the value of life.

[As of today’s date, this decision has been referred to or relied on by other courts (including the Supreme Court of Canada) 36 times.]