Four congregations that have left the Diocese of New Westminster are trying to use the Diocese’s property to help create a new Anglican Church, and this shouldn’t be allowed, a lawyer for the Diocese told the BC Court of Appeal Wednesday, September 15th.
The four congregations – formerly in the parishes of St. John’s Shaughnessy, Good Shepherd, and St. Matthias & St. Luke, all in Vancouver, and St. Matthews, Abbotsford – all part of a group currently called the Anglican Network in Canada. The Network wants to help form the Anglican Church in North America (ACNA), which will incorporate dissident parishes in both Canada and the US.
“They are trying to get this Church planted on top of the Anglican Church of Canada and The Episcopal Church in the United States,” the Diocese’s lawyer George Macintosh, Q.C., told the Court. In this country they are attempting to “eat away at the physical base of the Anglican Church of Canada.”
Macintosh and his colleague Tim Dickson spent the third day of a four-day Appeal Court hearing in defense of the Diocese. In a suit launched against the Diocese in 2008, the dissident group tried but failed to get lower court Judge Stephen Kelleher to declare that they could keep the properties. The case is before a panel of three Appeal Court judges.
This attempt to form a new Church “is an unfinished project,” Dickson told the Court. “They say they hope they will be recognized as a Province [autonomous Church] of the Anglican Communion, but at this point it is not that.”
The senior judge on the panel, Madame Justice Mary Newbury, questioned whether the Anglican Network in Canada (ANiC) was already part of the Anglican Communion.
She had read in the pleadings that ANiC’s head bishop, Donald Harvey, after leaving the Anglican Church of Canada, put himself under the authority of the Primate Gregory Venables, the chief bishop of the Province of the Southern Cone. That province is in the Anglican Communion.
Macintosh replied that Archbishop Venables had been roundly condemned within the Communion for accepting jurisdiction of Anglicans not living in his own territory. This included criticism from the head of the Anglican Communion, Archbishop of Canterbury Rowan Williams.
The ANiC’s bishops were not invited by the Archbishop of Canterbury to the Lambeth Conference, Macintosh told the judge. Not being invited is “a huge deal,” said the lawyer, because the invitations almost always go to every bishop in the Anglican Communion.
He said the Province of the Southern Cone is a relatively small Anglican Church with only about 5,000 members in six South American countries, Macintosh added: “It’s a bit of a small tail wagging a rather large dog.”.
The Diocese’s lawyers spent most of their time Tuesday arguing that the Court should uphold the lower court’s decision. They argued that the 1893 Act of the BC Legislature that legally established the Diocese, and all legislation since, was clear: parishes cannot divest themselves of property on their own without the consent of the Bishop and Diocesan Council.
Hence the congregations that have left the Diocese cannot take the properties with them, the Diocese’s lawyers argued. There was no need to go into the law regarding religious trusts, which the dissenting congregations want the Court to consider.
On Wednesday, the lawyers offered an alternative defense. If the Appeal Court wanted to consider trust law, they still shouldn’t order that the properties go to the congregations who have left the Anglican Church of Canada.
While there is no expressed (or written) trust involved, the Diocese’s lawyers agreed there may be an implied trust: parish trustees may hold their church properties in trust, but for Anglican Ministry as defined by the Anglican Church of Canada – and not for another body.
For the Court to order that the parish trustees must allow the congregations to take the properties with them to the ANiC, the lawyers argued, the Anglican Church of Canada would certainly have had to have altered its fundamental doctrine – its very identity as an Anglican Church.
This the Canadian Church did not do, the lawyers argued. The same sex blessing did not involved fundamental, or “core” doctrine, as the Anglican Church of Canada’s General Synod ruled in 2007. The General Synod does have the power to change all but the most basic or fundamental doctrine.
If the ANiC congregations felt that basic doctrine had improperly been changed by the General Synod, they could have brought the matter up within the Church at its own ecclesiastical Supreme Court of Appeal; but they never did. They could have challenged the action of the General Synod in civil court; but they didn’t do that either, Dickson said.
“That is the sort of action that would have been appropriate. Correct them. Get the Church back on track,” said the lawyer. Instead, the dissidents left.
Contrary to the assertion that their case was “unprecedented,” Dickson argued that there have been many disputes, and many groups have left. The congregations now in the ANiC can call themselves Anglican – about 100 groups worldwide, not in the Anglican Communion do so. But they were not entitled to Anglican Church of Canada property.
The only part of Judge Kelleher’s lower court decision that the Diocese has objected to was awarding some $2.2 million from a bequest to the Good Shepherd church. That part of his decision is being cross-appealed.
Macintosh noted that Judge Kelleher agreed that the bequest, from Dr. Daphne Wai-Chan Chun of Hong Kong, was to the parish, not the congregation. “I thought that ended the matter,” said Macintosh, since the parish is part of the Diocese – as opposed to the congregation that left.
However, arguing that the “overwhelming majority of Chinese Anglicans” had left the Diocese, Judge Kelleher said the parties had to develop a scheme whereby the funds were held in trust for the building needs of the ANiC congregation. This would be the best way to fulfill the “charitable intent.”
The lawyer for the Diocese cited several precedents which, he said, made it clear that the judge erred. He said there are Chinese Anglicans remaining within the Diocese, at St. Chad’s, Vancouver, and elsewhere, and they can use the money now or in the future to fulfill Dr. Chun’s intentions. Her theological position was unknown, he said, and she died in 1992, long before the same sex blessing was proposed and had become controversial.