T-239-89
Joseph Reed (Plaintiff)
v.
The Queen (Defendant)
INDEXED AS: REED V. CANADA (T.D.)
Trial Division, Muldoon J.—Vancouver, March
20; Ottawa, March 31, 1989.
Constitutional law — Charter of Rights — Fundamental
freedoms — Action for declaration internal closed session
disciplinary proceedings among Jehovah's Witnesses violating
Charter, s. 2(a) — Difference between secular and theocratic
state explained — Courts of secular states not intervening in
religious matters, even if religious tribunals exhibit bad judg
ment, provided no criminal offences or civil delicts committed
— Guarantee of freedom of religion not diluted by guarantee
of freedom of thought, belief and expression — Charter not
applying to religious disciplinary tribunals because freedom of
religion guaranteed — Statement of claim struck as disclosing
no reasonable cause of action.
Charities — Action against Crown to compel Minister to
revoke registered charity status — No reasonable cause of
action — Plaintiff's disapproval of "disfellowshipping" proce
dures of Jehovah's Witnesses not proper ground for judicial
intervention — Plaintiff neither petitioning Minister to review
religious organization's status, nor taking action against
organization itself in provincial superior court for accounting
— No allegation of unlawful behaviour by Minister, upon
whom responsibility for establishment and revocation of chari
table status conferred.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.), s. 2(a).
Federal Court Rules, C.R.C., c. 663, R. 419(1)(a),(2).
Income Tax Act, S.C. 1970-71-72, c. 63, ss. 149.1 (as
enacted by S.C. 1976-77, c. 4, s. 60), 168, 220.
Statute of Elizabeth, 43 Eliz. I, c. 4.
CASES JUDICIALLY CONSIDERED
CONSIDERED:
Commissioners of Income Tax v. Pemsel, [1891] A.C.
531 (H.L.).
APPEARANCE:
Joseph Reed on his own behalf.
COUNSEL:
J.A. Van Iperen, Q.C. for defendant.
PLAINTIFF ON HIS OWN BEHALF:
Joseph Reed, Delta, B.C.
SOLICITORS:
Deputy Attorney General of Canada for
defendant.
The following are the reasons for order ren
dered in English by
MULDOON J.: Counsel for the Deputy Attorney
General of Canada moves to strike out the plain
tiffs statement of claim pursuant to Rule
419(1)(a) [Federal Court Rules, C.R.C., c. 663],
that is, that it discloses no reasonable cause of
action. The expression of a cause of action must
inhere within the very words, phrases and allega
tions of the statement of claim, if cause of action
there be, because Rule 419(2) exacts that "No
evidence shall be admissible on an application
under paragraph (1)(a)." Of course, it means also,
that if a cause of action of some description be
disclosed, it does not count unless it be disclosed to
lie against the designated defendant.
The Court has carefully perused the 50-page,
174-paragraph statement of claim which Her
Majesty's Deputy Attorney General asks the
Court to strike out, in effect, by dismissing the
action before the defendant is even called upon to
lodge a statement of defence. This long, prolix,
imprecise, rhetorical, rambling, declamatory and
melodramatic statement of claim basically calls
upon the Court to revoke (or to compel the Minis
ter of National Revenue to revoke) the "registered
charity" status of the Watch Tower Bible and
Tract Society of Canada (the Society), at the
plaintiffs behest. The plaintiff also evinces a griev
ance against the Society's practice of holding
internal disciplinary proceedings which operate in
closed sessions among Jehovah's Witnesses in
Canada, and he calls upon this Court to declare
such in-camera disciplinary courts to be in viola-
tion of paragraph 2(a) of the Canadian Charter of
Rights and Freedoms [being Part I of the Consti
tution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.)].
Indeed, the plaintiff asserts, it is just because
the Watch Tower internal disciplinary tribunals
would never accord an open, public hearing to
those Jehovah's Witnesses (hereinafter J.W.'s)
who question the financial transactions and dispo
sitions of the Society's funds that he asks this
Court not only to declare such proceedings to be
against the guaranteed rights expressed in the
Charter, but also to revoke the "registered chari
ty" status of the Society.
Some examples of the passages in the statement
of claim, illustrative of the theme running through
most of its 174 paragraphs, are these:
39. Thus, Watch Tower of Canada may at any time, put in it's
[sic] own men as a judicial committee. One can be ever sure
that such appointees of Watch Tower of Canada would be well
drilled, Letters Patent, Object XI,
"to protect any other interest of the corporation",
by assuring that debaters of untaxed Watch Tower monies are
quickly pilloried out of a congregation of Jehovah's Witnesses.
40. Yet a further device to seal off debaters of Watch Tower
untaxed monies. Defence in depth, against Democratically-
inclined J.W.'s searching the whereabouts of elusive untaxed
Watch Tower monies, a supremely clever Watch Tower inven
tion of corporation-law. organization book, p. 86,
.. The Watch Tower Society through it's branch repre
sentatives has the authority to send one or more elders
(perhaps including a circuit overseer) into the congregation
to examine the situation and make it's report and recommen
dation to the branch".
41. One must marvel at the cool efficiency and thoroughness of
the Watch Tower Society of Pennsylvania's self-made ma
chinery called corporation-law where, under the guise of reli
gion, immense annual monies pour into it's hands, unimpeded,
and needing no accounting for. Much of that untaxed money
floods in through Watch Tower of Canada.
42. Watch Tower appeal judges? A coven of untouchables
empowered by home made corporation-law, to root out ques
tioners of Watch Tower money matters, and to ensure power-
in-perpetuity to the Party.
Finally, the prayer for relief runs thus:
174. THEREFORE,
I, Joseph Reed, ask this Federal Court of Canada for a
WRITTEN Judgment:
(a) That this Court, because of denial of Charter Rights,
REVOKE the "registered charity" status of Watch Tower Bible
and Tract Society of Canada, which status was granted to said
corporation by Revenue Canada, Taxation, Charitable and
Non-Profit Organizations Section.
(b) That all donations, gifts, bequests by will, to Watch Tower
Bible and Tract Society of Canada, shall henceforth and
immediately be SUBJECTED to INCOME TAXES.
(c) That the practice of Watch Tower Society of Canada-
commissioned, internal disciplinary courts which operate in
closed-session, public-excluded manner, among Jehovah's Wit
nesses in Canada, be declared to be in violation of the Canadi-
an Charter of Rights and Freedoms, sec. II, (d)
. in a fair and public hearing".
And that such closed-session courts are in violation of sec. 2(a)
"Everyone has the following freedoms; (a) freedom of con
science and religion".
And that such courts-in-camera of Watch Tower of Canada-
commission, be declared to be UNCONSTITUTIONAL.
An apt description of Canada in political-legal
terms is: a secular, federal, parliamentary democ
racy, with further definitional refinements being
provided in the Constitution of Canada, including
the Canadian Charter of Rights and Freedoms,
among several other texts both legislative and
learned. Here, the principal concern is with the
aspect of secularity. Canada is a secular State,
with freedom of religion.
A secular State must be distinguished from a
theocratic State. In a theocratic State, the (usually
the one and only permissible) church, temple or
mosque is the State, such that one can be punished
upon the judgment of judicial clergy who are
certifiably expert in State theology for disbelief or
expression of opinion contrary to official dogma.
The sentence is damnation and the execution of
the sentence not infrequently despatches the hap
less convict irrevocably and purportedly thither,
whether truly so, or not, no one ever knows for
sure. A secular State with freedom of religion
accords scope to the people, or more correctly, the
people assert their right, to establish and adhere to
their own beliefs, which when organized by many
individuals, usually evince private systematic
theocracy. In law no one is compelled to be a
member or believer, and equally no one is com
pelled to remain a member or believer. In such
religious communities, a disciplinary tribunal
might well condemn some contending member or
believer to damnation, but the secular State does
not lend its servants to the execution of the sen
tence, nor does such State condemn anyone to
damnation or to any lesser perdition.
In fact, in any collision between religious prac
tice and secular law, the secular State will jealous
ly enforce its criminal law and other public law
despite religious claims or objections. Indeed
when, as sometimes happens, congregations fall to
quarrelling less ethereally and more materialisti
cally over property, the legal title or possession of
which is a matter of law, the Courts of these
secular States, wherein are included the provinces
of Canada, will undertake to resolve the dispute
over matters within their secular jurisdiction.
However the Courts of secular States, with free
dom of religion, are not concerned with, nor en
titled to intervene in, matters of individual souls,
sanctity, fellowship, baptism, circumcision, confir
mation or ultimate hope of eternal presence in the
Beatific Vision. It is true that such matters can
become contentious and inflame the passions, but
so long as those passions and their physical expres
sions do not cause, create or commit criminal
offences or civil delicts, which are entirely within
the State's power of legislation, the secular State
will not, and ought not to intervene in religious
affairs, for which the people assert their freedom,
guaranteed in and by the Charter. Nor will it
intervene, even when the religious tribunals mani
festly exhibit bad or poor judgment, for with free
dom of religion, it is not for the secular State to
exact of religious bodies the creation of appellate
tribunals in imitation of the secular judicature.
The land of Canada's major legal heritage was
not always a secular State with freedom of reli
gion, as anyone familiar with the life stories of
Thomas More and previous and subsequent mar
tyrs well knows. Yet, over the centuries the de
velopment of the secular parliamentary democracy
went, in fits and starts, generally hand-in-hand
with the people's right to freedom of religion. In
Canada, today, the adherents of at least two of the
world's great religions, Judaism and Christianity,
exhibit a tolerance and indeed respect for the
principles of the democratic secular State with
freedom of religion. It not only accords, but exacts,
all persons' right to hold to the tenets of their
faiths without discrimination or bloodshed. That
"freedom of conscience and religion", as well as
"freedom of thought, belief, opinion and expres
sion, including freedom of the press and other
media of communication" are equally guaranteed
by the Charter, does nothing to dilute the quality
of civilization in Canada: their equality enhances
it. Nor do the latter freedoms dilute the former.
To be sure, the Charter is integral to the Consti
tution of Canada and, by section 32 thereof, it
applies to all provincial and federal legislative and
governmental power and all matters within their
respective authority. But, the Charter notably does
not provide for, nor did anyone ever imagine that
it would apply to, religious disciplinary tribunals,
precisely because, on the contrary, it guarantees
freedom of religion. Therefore, this Court will not
interfere with the obvious dispute about the prac
tice and procedure of adjudicating disfellowship
which has erupted between the plaintiff as a disaf
fected J.W. and the Watch Tower Bible and Tract
Society of Canada. In this regard it is plain and
obvious that the plaintiff's statement of claim dis
closes no cause of action which is cognizable by
this Court.
Then, to seek to move the Court to revoke the
Society's charitable status, is a misconception of
secular lines of authority. Section 220 of the
Income Tax Act [S.C. 1970-71-72, c. 63] man-
datorily imposes upon the Minister and Deputy
Minister a duty to administer and enforce that
statute, including of course the provisions regard
ing registered charities. An action to compel the
Minister, according to law, to revoke that status
would come closer to the mark, but would still
miss it.
The Income Tax Act provides no comprehensive
definition of a charity, and so the Minister and
taxpayers alike must look to the common law of
England, the land of Canada's major heritage of
law, in order to appreciate the legal meaning of the
concept. As was noted by Lord Macnaghten in the
decision of the House of Lords in Commissioners
of Income Tax v. Pemsel, [1891] A.C. 531,
"charity" is a peculiarly English concept of law
and equity. At pages 580 and 581, and at 583 and
584, he explained that charitable uses and trusts
form a distinct head of equity, made the more
conspicuous because owing to their very nature,
they are not obnoxious to the general rule against
perpetuities. The Act of 43 Eliz. I [c. 4, Statute of
Elizabeth] was held to authorize certain enumer
ated gifts to charity which otherwise would have
been held to be void. The enumerated objects of
charitable giving are not exclusive but rather illus
trative examples. Nevertheless, there is no doubt
that religious and educational charities are firmly
rooted in and among the non-exclusive list of
enumerated objects.
After noting some of the various objects which
have been held to be lawfully charitable in a legal
and technical sense not always or necessarily con
sonant with that of common parlance, Lord Mac-
naghten was reported as noting [at page 584]:
If a gentleman of education, without legal training, were asked
what is the meaning of "a trust for charitable purposes", I
think he would most probably reply, "That sounds like a legal
phrase. You had better ask a lawyer."
That it why, no doubt, the Act leaves, in the first
instance, the establishment and the disestablish-
ment of charitable status to the Minister to deter
mine upon representations from the would-be or
the impugned person or organization purporting to
carry on the work of a charity, whether religious,
educational, for the relief of poverty or with
objects generally beneficial to society. No doubt
the Federal Court of Canada can intervene to
interpret and declare the law either upon a lawsuit
or application for judicial review. But there must
be proper grounds. Such grounds do not reside in
the plaintiff's exhaustively expressed disaffection
with the Society's "disfellowshipping" procedures,
even when invoked against a J.W. who seeks to
debate the Society's use of its donated funds.
The plaintiff stated to the Court that he has
never requested or petitioned the Minister to
review the Society's status as the Minister may
surely do pursuant to sections 149.1 [as enacted by
S.C. 1976-77, c. 4, s. 60] and 168 of the Income
Tax Act. In this suit against Her Majesty there is
no allegation that the Minister has behaved unlaw
fully in this regard. Again, when asked if he had
commenced an action for accounting against the
Society in the superior court of the province where
its head office is located, the plaintiff responded
that there is "no way" in which he was going to
sue the Society directly. There is, in these circum
stances, no way in which he can sue the Watch
Tower Society, indirectly, by means of the state
ment of claim filed in this Court against Her
Majesty which seeks revocation of the Society's
charitable status, a matter confided by law to and
upon the Minister, all on the basis of the plaintiff's
complaints about the Society's conduct of its inter
nal disciplinary proceedings. If the plaintiff has
been wronged, then it is the Watch Tower Society,
and not the State, which has wronged him.
These reasons are over-long for the disposition
of a defendant's motion under Rule 419(1)(a). It
has often been said by judges of this Court that if
and when it be truly plain and obvious that a
statement of claim discloses no reasonable cause of
action, no elaborate reasons are needed to say so.
However, in deference not only to the plaintiff's
request for written reasons, but also to the consti
tutional nature and the importance of the subject-
matter, these reasons are expressed extensively,
just as both Divisions of the Court did in the cruise
missile case.
The plaintiffs statement of claim is to be struck
out and the action dismissed. It discloses no
reasonable cause of action. The plaintiff shall pay
to the Crown its taxable costs of and incidental to
this action and motion. Needless to say, the
Crown, in its discretion, is not obliged to pursue
the plaintiff for its taxed costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.