From: Ed Hird [mailto:ed_hird@telus.net]
Sent: November 26, 2009 12:35 PM
To: Ed Hird
Subject: Here is my initial analysis and observations of the 98-page
verdict by BC Supreme Court Judge Kelleher on the four faithful Anglican
congregations that have chosen to realign with the Global South Anglican
Provinces.
Ed Hird Here
is the 98-page verdict by BC Supreme Court Judge Kelleher on the four faithful
Anglican congregations that have chosen to realign with the Global South
Anglican Provinces.
The
Anglican Coalition in Canada receives honorable mention in the 98-page
document:
"[124] In 2004, four parishes in the Diocese left the ACC and accepted
episcopal oversight from Southeast Asia and Rwanda. These parishes were St.
Simon... See More’s
North Vancouver; St. Timothy’s North Vancouver; Church of Emmanuel Richmond;
and, St. Andrew’s Pender Harbour. This group became known as the Anglican
Coalition in Canada (“ACiC”). There are now six ACiC congregations in the Lower
Mainland and a total of ten congregations in British Columbia, as well as four
more in the rest of Canada."
Has
Bishop Harvey actually settled in British Columbia, or is this a faux pas?
[139] Bishop Donald Harvey is a former bishop from
Newfoundland and Labrador. Upon his retirement, he settled in British Columbia.
He is an active conservative. His evidence is that in 2006 or 2007, he had a
conversation with Archbishop Gregory Venables, the Primate of... See More the
Province of the Southern Cone. Archbishop Venables offered to take Bishop
Harvey under his jurisdiction. That would mean that Bishop Harvey would
continue to be a bishop in the Anglican Communion although not in the ACC.
Here
is the gist of the cy pres case made by the four faithful congregations:
[182] The plaintiffs submit that the Solemn Declaration remains a limitation on
the authority of the Church to define doctrine and liturgy. They point to the
evidence of Bishop Ronald Ferris (typo corrected) who commented on the
relationship between the constitution of ... See Morethe General Synod and the Solemn Declaration:
General Synod’s foundational constitutional
obligation is not to the See of Canterbury, nor to the subsequent structures of
the Anglican Communion, but is directly linked to the other Church of England
entities “throughout the world”. Thus the General Synod has the constitutional
obligation to use its legal autonomy only by being in the fullest possible
harmony with other Anglican entities throughout the world. To break or damage
that harmony is an abrogation of its own constitutional and trust
responsibilities. When people gave land, property and resources, often to the
Bishop “in trust”, to advance the work of the Church of England in Canada, or
to advance the work of their own parish, this was the understood foundation
stone of that trust.
This
is a key summary of the case made by the four ANiC congregations:
[188] The plaintiffs argue that Bishop Ingham and the Diocese have departed
from the traditional teaching of the Anglican Church on issues of human
sexuality. That traditional belief, representing the teaching of the Christian
Church for 2000 years, is that sexual relations ...
See Morebelong only in a faithful marriage between a man and a
woman. Orthodox Anglicans believe that to go beyond treating homosexual persons
with understanding and concern and to bless homosexual unions is to countenance
same-sex unions as a gift from God. This, the plaintiffs argue, is contrary to
the Scripture, the Marriage Canon and liturgy, the ACC’s constitution, Article
20 of the Articles of Religion, and international teachings.
The
stated consequence of ruling against the four congregations:
[208] The plaintiffs argue that granting the counterclaim will cast the largest
congregation within the ACC out of its building because it stands against
innovations in doctrine and practice which are, at the least, controversial.
The same outcome will similarly befall the largest ...
See Morecongregation in the Fraser Valley and almost the entirety
of the Chinese Anglican community. This outcome should be avoided in order to
minimize the existing conflict within the Christian community.
This
is probably the most contentious conclusion by the Judge:
[256] A parish does not have authority to unilaterally leave the Diocese, and
it is consequently ultra vires for it to pass a resolution purporting to do so.
Additionally, while parish corporations may hold title to real property, the
effect of s. 7(4)(a) is that that property ... See Moreeffectively remains within the Diocese unless the
Executive Committee and Bishop agree to mortgage, sell or otherwise dispose of
it. In using the church properties for purposes related to ANiC, the parish
corporations are using them outside the jurisdiction of the Diocese, and,
indeed, the ACC. In my view, this is sufficient to bring the properties within
the ambit of s. 7(4)(a) such that the consent of the Executive Committee and Bishop
is necessary. As that consent is obviously not forthcoming, the properties
remain with the Diocese.
This
paragraph is particularly unfortunate in its comparing second-order issues to
first-order issues of faith and practice:
[258] To repeat, the plaintiffs submit that the parish properties are held on
trust for purposes of ministry consistent with historic, orthodox Anglican
doctrine and practice. “Historic... See More” and “orthodox” are uncertain and subjective terms that
cannot, in my view, form the basis of an enforceable trust. The history of
Anglicanism spans over 400 years, and thus it is simply not apparent what
period “historic” is in reference to. “Orthodox” is similarly subjective and,
therefore, equally problematic in defining a trust. Moreover, a trust which
freezes doctrine at a point in history is inconsistent with the history of
change and evolution in Anglicanism. For example, the ACC now permits the
remarriage of divorced persons. The Church ordains women as priests, and there
are also female diocesan bishops in the ACC. These developments are
inconsistent with what many would consider historic and orthodox Anglicanism.
This
shows just how damaging the 2007 ACC General Synod was to the historic Anglican
faith in Canada:
[272] In 2007, the General Synod accepted the conclusion of the Primate... See More’s
Theological Commission, passing Resolution A184, “[t]hat this General Synod
accept the conclusion of the Primate’s Theological Commission’s St. Michael
Report that the blessing of same-sex unions is a matter of doctrine, but it is
not core doctrine in the sense of being credal.” It also passed resolution A186
“[t]hat this General Synod resolves that the blessing of same-sex unions is
consistent with the core doctrine of the Anglican Church of Canada”. By these
two resolutions, the General Synod has defined the ACC’s doctrinal position on
the blessing of same-sex unions. It can also be implied from these resolutions
that the General Synod does not view the blessing of same-sex unions as being
contrary to the Solemn Declaration. It is clear that the blessing of such
unions does not engage core or fundamental doctrine, and, accordingly, there is
no breach of trust on even the terms that the plaintiffs put forth.
This
particular ruling is certainly a conundrum:
[286] For the reasons that follow, I conclude that Canon 15 does not confer the
Bishop or the Diocese with authority to terminate the appointment of trustees
and wardens elected by the vestry....Nevertheless, there is no specific
authority in Canon 15 for the extraordinary action of removing elected... See More
trustees and appointing replacements. That goes beyond restructuring, and is
not contemplated by my reading of Canon 15....[293] Accordingly, I conclude
that Bishop Ingham did not have authority to terminate the appointment of
trustees validly elected by the vestry.
[294] It follows that the individuals elected or
appointed at the annual vestry meetings of St. Matthias and St. Luke and the
Church of the Good Shepherd on February 24, 2008 continue to hold their
positions as trustees of their respective parish corporations. They are,
however, required to exercise their authority in relation to the parish
properties in accordance with the Act, as well as the Constitution, Canons,
Rules and Regulations of the Diocese. As I have already concluded, they do not
have authority to use those properties outside of the Diocese; this includes
using them for purposes related to ANiC.
Final
comments to the trustees who are still declared as legally in place:
[295] It may be that in light of the other conclusions I have reached, the
trustees will no longer wish to remain as such. I do not know. For now, I will
leave it to the parties to arrive at a workable resolution. In the event it
becomes necessary, they may return to court for further orders in this regard.
This
is one of the most interesting rulings by the Judge:
"The evidence establishes that the three parishes in the district with
substantial Chinese congregations have left the Diocese: Good Shepherd, Church
of Emmanuel (the parish planted in Richmond by Good Shepherd) and St. Matthias
& St. Luke. St. Chad... See More’s is a small congregation, approximately half the
members of which are Chinese, that remains in Diocese. Nevertheless, the
overwhelming majority of Chinese Anglicans have left. Given the unlikelihood
that there will be need for a new building for the Chinese community in the
Diocese, the proceeds of Dr. Chun’s bequest will simply remain in trust. This
would render the bequest useless and defeat Dr. Chun’s main intention: In Re
Robinson, [1923] 2 Ch. 332 (Chancery Div.). I therefore find that the fulfilment
of the purpose of Dr. Chun’s bequest has become impracticable and that this is
an apt occasion in which to apply the cy-près doctrine."...In the
circumstances, I conclude that a scheme whereby the funds are held on trust for
the building needs of the ANiC congregation will best fulfil Dr. Chun’s
charitable intent.
[330] The precise terms of the trust must now be
developed and trustees must be appointed. I leave these matters to the parties.
If they are unable to agree, any party may return to court for further orders.
Final
comments from the Judge:
[335] The defendants in Action No. S086372 are entitled to a declaration that
the plaintiffs’ entitlement to possession and control of the properties held by
the parish corporations must be exercised in accordance with the Act and the
Constitution, Canons, Rules and Regulations of the Diocese.
Counterclaim
[336] The other declarations and orders sought in the amended counterclaim are
dismissed.