SUPREME COURT OF CANADA – Jehovah’s Witnesses Under Review

SUPREME COURT OF CANADA

Jehovah’s Witnesses Under Review

Introduction

A disfellowshipped Jehovah’s Witness, Randy Wall, approached the judicial system of Canada protesting the fairness of the procedures which led to his being disfellowshipped. Evidently, he did not impugn the merits of his disfellowshipping. He is alleged to have lapsed spiritually insofar as heavy drinking and being verbally abusive to his wife and sons is concerned, this (allegedly) being the second time.

The elders of Highwood Congregation formed a judicial committee which ultimately took the view that he was insufficiently repentant and thus disfellowshipped him. The consequence of this decision was that it affected his relationship with members of the congregation. He being a real estate agent, a number of his clients – many of whom were Witnesses – no longer sought to do business with him. Thus, his status as a disfellowshipped person had a negative impact on his livelihood.

Having said that, if the allegations are indeed true, I wish to place it on record that I do not condone the impugned conduct which eventuated Mr Wall’s removal from the congregation; in fact, I find such conduct regrettable, as I’m certain that any right-thinking person would. In any event, for my porpuses, the legal factum and viva voce arguments presented in this case did afford me the opportunity to glean a few nuggets concerning Watchtower’s strategy in the legal arena.

Shunning vs. Disfellowship

In his opening statement, David Gnam, Watchtower’s lawyer, tries to educate the court about the (religious) practice of “disfellowshipping”. He endeavours to distinguish it from the idea of shunning.

Jehovah’s Witnesses don’t use the word “shun” or “shunning”. They refer to it as “disfellowship”, “disfellowshipping”, “disfellowshipped” because that really gives the sense of what’s taking place within this particular religious community. “Disfellowship” literally means “no further spiritual fellowship” with the individual. […] The nature of the relationship, then, of a disfellowshipped person is not completely shunned. The disfellowshipped person is able to come into the congregation meetings, they’re able to attend in the Kingdom Hall of Jehovah’s Witnesses, they’re able to sit wherever they like, they can sing the spiritual songs with the congregation. As far as their family members are concerned, normal family relations continue with the exception of spiritual fellowship… and, the door is not closed to Mr Wall either. The person who is disfellowshipped can, after a period of time, ask to be re-instated in the congregation, because that is the purpose of the discipline.

What Gnam is trying to highlight here is the idea that to “disfellowship” is a practice that is isolated to “spiritual fellowship” only, this being distinct from a wholesale shunning of the individual. What he’s proposing, then, is that these two concepts should not be conflated.

Well, I must say – reluctantly – that his proposal is compelling… at least academically. The problem, however, is that, in practice, this is simply not the case. Why? Consider the following: Gnam’s formulation suggests that apart from spiritual fellowship – say, at the Kingdom Hall – the disfellowshipped individual may continue non-spiritual fellowship with members of the congregation, say, you were best friends with a particular member of the congregation with whom you shared a common interest apart from religious affinity. Gnam makes it sound as if, after the meeting, said disfellowshipped person could grab a couple o’ beers with his congregation buddies over a game of football – thus, social fellowship, as opposed to spiritual fellowship.

This suggestion is false… The documented evidence speaks for itself.

Disfellowshipping is shunning. It’s really that simple. There is no dichotomy between spiritual and social fellowship. Gnam’s narrative, therefore, is a sanitised (some might say, “bastardised”) version of reality. To be sure, this narrative is unfortunate, because, for all the talk of love, the overwhelming evidence is that disfellowshipped persons – irrespective of the prevailing circumstances that led to their being ousted – are treated as persona non grata by the masses who are not infrequently devoid of the facts of the case.

This is a highly emotive subject, herewith camouflaged with political speak in order to neutralise the veritable sting, and the otherwise inhumane aspect, of the actual practice. The truth, however, remains a simple one: disfellowshipping is shunning.

Normal Family Relations Continue

As a continuation of this narrative, Gnam suggests that when a member is disfellowshipped, apart from spiritual fellowship, “normal” family relations continue. Well…

This is simply not true. In fact, not a few disfellowshipped members, who experience the daily reality of this practice, would take offence at this suggestion. No “normal” family relations continue. Beyond outright shunning, it is not unheard of for people to get kicked out of the house or dis-inherited. As a matter of practice, social fellowship and spiritual fellowship are bundled together in the elimination process. There is nothing “normal” about this.

Gnam speaks of it as an act of “discipline”. Well, that’s certainly one way of looking at it. Alternatively, however, to speak of it as a form of spiritual or emotional blackmail isn’t too far from the truth either; in fact, if evidence is anything to go by, this alternative is, objectively speaking, within the ambit of this practice. The blackmail aspect is informed by the fact that people have been disfellowshipped for simply adopting a different view, notwithstanding that such views might be founded on principle or conscience. Very often, then – quite apart from correcting unscriptural conduct – “discipline” is a pretext for censorship.

What Gnam failed to append to his narrative is the fact that Jehovah’s Witnesses are discouraged from socialising with non-Witnesses (“worldly people”), this on the strength of scriptures which discourage Christians from walking with unwise persons.[1] Anyone who is not a member of Jehovah’s Witnesses is considered “unwise” in that sense. When all of these scriptures are puzzled together, then, it becomes a radicalising cocktail for wholesale shunning. When such is the case, what “normal” family relations are there to be spoken of in respect of a disfellowshipped member? Any Witness that is honest with themselves, that is a genuine lover of truth, will tell you that Gnam’s narrative is not a true reflection of the status quo.

Why, I can’t tell if Gnam is genuinely oblivious to this or if he’s just being a “good” lawyer.[2] Either way, whether he realises it or not, he’s engaging in a campaign of misinformation. There is nothing “normal” about the conduct of Jehovah’s Witnesses vis-à-vis their treatment of former members, especially members of one’s family.

In fact, it is owing to this modus operandi that Witnesses are often indicted as being a cult! They promote themselves as the one true religion; they draw members in on the strength of this idea; they isolate their members from “unwise” people. Then, however, when such members become wise to the real historical and objective truth about the organisation, and, as a matter of principle, react, they are shunned into compliance by starving them of their entire social network – their family, their friends. They are made to forfeit, as they put it, the “sweet fellowship with the [congregation], including much of the association he had with Christian relatives”.

What is “normal” about this, pray tell?

Members Who No Longer Believe Can Simply Leave

During Gnam’s follow-up argument, Justice Abella puts a question to him as to what the appropriate recourse should be for a member who subsequently clashes with the religion’s core beliefs. Gnam states that the dissident should simply leave. In fact, before that, Gnam suggests that the dissident could promote his views and ideas in the congregation with the aim of reaching some type of consensus with fellow members and that, failing such consensus, he should simply leave (and start his own church).

Well, I just about cracked “me-self” up at this proposition. My learned friend, Gnam, it would seem, is a gift that keeps on giving.

To be fair, however, his proposition is prima facie sound. If you disagree with the direction that your church is going, simply leave, and, if need be, start your own church. The truth is, however, that it’s not that simple with Jehovah Witnesses. As already highlighted above, the organisation does not appreciate (“tolerate”) dissent. What the Governing Body (“the Faithful and Discreet Slave”) of Jehovah’s Witnesses teaches, that is the truth. Aberration, deviation, independent thinking… these things are frowned upon. Anyone who promotes ideas that are incongruent with official doctrine will be labelled an apostate and made to endure all the effects attendant to such label. In all probability, then, such dissident, albeit bona fide, will be given a dishonourable exit… and shunned. Attempting to promote one’s independent ideas in the congregation will be met with a quick and decisive response.

To any erstwhile Witness, this process is trite… no illusions about it. However, to the learned Justices of the Supreme Court of Canada – bursting at the seams with intellectual knowledge and jurisprudence though they are – they were, in this particular aspect, found wanting, this, owing to an obvious lacuna in their appreciation of actual JW practice. Put colloquially, the Justices got played. Only an (awake) Witness could appreciate the dimensions and nuances of Gnam’s statements insofar as their “tailoredness” is concerned.

Can Witnesses Do Business With a Disfellowshipped Person?

Clearly grappling with the practices of Jehovah’s Witnesses, Justice Moldaver asks Gnam if Witnesses are permitted to engage in business with a disfellowshipped person. Recall, Gnam had already spoken of disfellowshipping as a form of discipline which foreclosed any spiritual fellowship from taking place between active members and disfellowshipped persons. From this narrative, it follows that business transactions fall outside the purview of “spiritual fellowship”. However… this is not the case.

It should be clear by now that, with Jehovah’s Witnesses, things aren’t always what they sound. You need to listen with special ears. You need to know how to ask the right question in order to draw out, not only what is said, but also what is not said because certain ommissions are an integral part of the story.

Gnam’s answer to Justice Moldaver‘s question is that, as a matter of “personal decision… based on religious conscience“, Witnesses will have no association with a disfellowshipped person, this, ostensibly, as a form of discipline to the “errant” one. However, as Gnam continues, what he reveals is that, more than just a personal conscientious decision, this practice really amounts to a “group value”.

Sure enough. However, a grand omission on Gnam’s part is the fact that, more than just personal “conscience” or a “group value”, it is, in fact, a mandatory position. Any member who, as a matter of personal conscience, sidesteps this “group value”, will themselves be open to the same kind of reprisal. Any deviation from this “group value” attracts unfavourable scrutiny from the congregation elders. Ergo, the idea that there is an actual choice to be made is nothing short of an illusion. If the elders sit you down and discourage you from continuing “undue association” with the disfellowshipped person, but you, as a matter of personal conscience, forge ahead, you may very well find yourself “disfellowed”.[3]

Peaceful Submission

Earlier on, Gnam identified – correctly, I might add – the prevailing culture within the Jehovah’s Witness community, namely, as that of “peaceful submission”. Uh. Sounds very noble and humble. What happens, though, when, as matter of scriptural insight, you cannot conscientiously submit?

Oh, yes, of course… how forgetful of me; you can just leave and start your own religion (all at the discounted price of loosing all of your friends and family).

This bespeaks the lack of tolerance and collegiality; there is only a sense of heirarchy, command, and a series of fait accompli. Wherefore, then, under such circumstances, is there any genuine room for (respectful) dissent? If Witnesses could let you go without shunning you or making you run the gauntlet, that would be genuine emancipation. If that were truly the case, this article would be moot.

As already mentioned above, Jehovah’s Witnesses often warn their members about the dangers of “independent thinking”. It has become a pejorative term, a term that attracts negativity and disdain. Witnesses are often reminded of the first (prideful) independent thinker, namely, Satan. In fact, the Bible is littered with “independent thinkers” who went contrary to official direction, the likes of Hymenaeus and Alexander. How these “bad” independent thinkers can be distinguished from “good” independent thinkers – of which Jesus was one – is a field laced with landmines. Furthermore, how this (bad) independent thinking can be reconciled with the Bible’s encouragement for Christians to “make sure of all things”[4] makes for a fascinating conundrum. What it really boils down to is a matter of emphasis.

In any event, the point I mean to draw from this, is the fact that, the idea that you can canvass the congregation and promote your own ideas (with impunity), is not as innocuous an idea as Gnam makes it sound. It is an over-simplification of a complex issue that is riddled with fine print.

Jehovah’s Witnesses Have “Religious Practices” (Not “Rules”)

Now, the purpose of this entire case was to determine if the courts have – loosely speaking – jurisdiction to entertain this case. Part of Gnam’s argument was that Highwood Congregation was a private, unincorporated religious body, and that, as such, it did not come under the purview of administrative scrutiny for purposes of determining procedural fairness. Put differently, Highwood Congregation is not a public body exercising a public function, which, if it were, would have been bound to comply with administrative law, which would mean, decisions made by the elders in judicial committees would have to be lawful, reasonable, and procedurally fair in terms of the applicable empowering legislation. However, as the argument goes, because Highwood Congregation is not a public body, administrative law does not apply and that, in fact, judicial scrutiny into its processes would amount to – I like the way Gnam puts it – an “invidious interference with religious beliefs”.

The Canadian Charter, much like South Africa’s et al, Constitution, protects freedom of religion. Hence, Gnam was attempting to safeguard what he defined as “a [religious] zone of autonomy”.

One wonders, though, if the statement is fundamentally true that Jehovah’s Witnesses don’t have rules, only “religious practices”. Would the elder’s (secret) manual – the Shepherd the Flock of God book – not evidence a case of rule-making, the import of which not infrequently fall outside of the scope of scriptural practice?

Do Members Have Access to the Elder’s Manual?

During Gnam’s reply to the submissions that had been tendered hitherto, Justice Moldaver asks a very pertinent question; effectively, whether congregation members have access to the elder’s (secret) manual:

I regret the way that Justice Moldaver phrased his question. Admittedly, however, as a non-Witness he couldn’t have known better. Gnam made it seem that the Organized book, which every Witness has access to, is an equal reflection of the contents in the Shepherd book. This is simply untrue. Only a Witness who is privy to both books would know this. The Organized book is a watered down version of the Shepherd book.

That said, a better way of phrasing Justice Moldaver’s question would have been thus:

Having regard to the importance of a members standing in the church, in conjunction with the investments made by said members, is it not the case that every member has sufficient interest in this book, this in respect of its contents and procedures, as to warrant its general circulation and availability? Do the rank-and-file members of the church, in fact, have access and permission to this book? I ask this in light of the fact that, so far as I can see, it appears that, in his originating affidavit, Mr Wall sourced this book from the internet and not the church.

That, I submit, would have been a better question.

Justiciability and Jurisdiction

This case turns on two issues, namely, justiciability and jurisdiction. These two concepts have significant overlap, but, nevertheless, remain distinct. In fact, a measure of confusion and uncertainty permeated throughout the hearing as to which of the two was being addressed at any given time.

Justiciability can be divided into two aspects, namely, 1) procedural justiciability, and 2) substantive justiciability. Regarding the former, it entails three features, namely, standing, mootness, and ripeness.[5] Of primarly concern to us, however, is substantive justiciability. As my professor, Moolman, put it:

“[S]ubstantive justiciability concerns the subject matter of the claim, and whether it is competent for the courts to decide claims of that sort. There are some issues that are not appropriately decided by the courts at all.”[6] (Italics mine)

One such issue (or subject-matter) that is not competent for courts to decide is religion. Religion, therefore, is not justiciable; it is sheltered from judicial intervention. This is the case because – frankly speaking – everyone is endowed the right to believe whatever the hell they want to believe as a matter of religious faith (at least in most constitutional democracies).

Jurisdiction, on the other hand, really has to do with the power of the particular court to hear the matter. Jurisdiction is determined by various factors such as, inter alia, 1) the location of the offending act, 2) the quantum that the plaintiff is seeking, 3) the residence of the defendant, and 4) the constitutional powers of the court. Thus, where one court might lack jurisdiction, another court might possess it.

In summary, then, where a matter is not justiciable, then, as a general rule, no court may entertain the matter (it is axiomatic that, in such case, jurisdiction is rendered nugatory). On the other hand, however, just because one court lacks jurisdiction should not be mistaken to mean that the issue or subject-matter complained of is not justiciable. That remains a question of law.

Keeping the above in mind, then, this is why the Respondent’s lawyer, Michael Feder, commenced his replying argument by stating that his client, Wall, does not challenge the substance or merits of the judicial committee’s decision to disfellowship him, and, secondly, that neither is he asking the court to make a determination as to who can be a Jehovah’s Witness.

In so doing, Feder was trying to foreclose any potential arguments mounted against his client which were based on justiciability. Instead, the thrust of Feder’s argument related to the procedure that was carried out by the judicial committee, which procedure eventually ousted Wall from the Jehovah’s Witness community. This, therefore, is what is being impugned, namely, that the procedure was flawed. Thus, Feder submits that his client is entitled to procedural fairness, which entitlement, so the argument goes, is founded on “natural justice” (or a quasi-contract) – as animated by the existence of a “sufficient interest”.

Put differently, Feder is saying is that the animating factor for judicial review is founded on the fact that his client, Randy Wall, is entitled to natural justice – which is a legal principle – not because of an underlying right belonging to Wall, such as a contractual right or property right, but, rather, on the basis that the decision made – namely, the Highwood Congregation elder’s decision (or the outcome thereof) to disfellowship Wall – is of “sufficient interest” as to warrant judicial intervention/review.

To rephrase it even further (even I am grappling to capture the tenure of his argument): the consequences of the Committee’s decision are so dire or significant that they warrant natural justice, and, in consequence, provide the courts with the requisite jurisdiction to adjudicate the matter.

As already mentioned, Feder frames it this way because to attack the merits of the Judicial Committee’s decision would amount to what Gnam characterised as “an invidious interference with religious beliefs” as articluated in the Emselem case. Thus, Feder‘s tactic is: don’t impugn the merits of the decision, impugn the procedure (notwithstanding Gnam‘s submission that the procedure (“processes”) is a religious one, and thus not justiciable) by unbundling it from the religious aspect.

Conclusion

The Watchtower organisation, through its legal representative, sought to oust this case on the basis of justiciability; furthermore, that in the absence of a private law right, Wall was not eligible for any private law remedy. That said, from a legal point of view – particularly constitutional – the argument presented on behalf of Wall, is ambitious insofar as it seeks to invoke judicial review based on an interest which is not tethered to a readily recognisible and unassilable legal right. That said, however, one is ever open to the setting of a new precedent.

Legalities aside, however, the “religious practice” narrative presented by Gnam is, in my submission, unfortunate… regrettable… damnable.

#ThinkingWitnesses

[1] 1 Corinthians 15:33; Proverbs 13:20.

[2] I have since been advised a former Jehovah’s Witness who served in the legal department at Jehovah’s Witnesses headquarters in Canada (“bethel”) that Gnam is actually, not only a Watchtower lawyer, but he also serves as a congregation elder. Thus, Gnam, is fully aware of the “shadedness” of his narrative. My source advises me that those working in the legal department were often informed of these tactics, the rationale being that “worldly” judges wouldn’t understand disfellowshipping otherwise.

[3] Organized to Do Jehovah’s Will (2015) p.141 para.29, read with Shepherd the Flock of God (2010) p.116.

[4] 1 Thessalonians 5:21; 1 John 4:1; Matthew 24:24; Acts 17:2, 3.

[5] Ian Currie & De Waal The Bill of Rights Handbook 6 ed (2013) p. 72.

[6] Stuart Moolman & Michael Bishop Constitutional Law of South Africa 2 ed (2008) Chapter 7 p.(?). Also, in the Supreme Court of the United Kingdom, Lord Neuberger, Lord Sumption and Lord Hodge described non-justiciability as “a case where an issue is said to be inherently unsuitable for judicial determination by reason… of its subject-matter”. – Shergill and others v Khaira and others [2014] UKSC 33, [2014] All ER (D) 83 (Jun) para 41.