David Short, Rector of St. John’s Shaughnessy:

“the way we respond is a God-given opportunity to bear witness to Christ. As those who are disciples of Jesus Christ, this is not just about ‘what’ we do but also ‘how’ we do it. In some ways nothing will change with the decision on Thursday. We are still God’s family, and he has placed us in Vancouver to spread his glory.”

Read here

Vancouver, BC – In a decision released today, the BC Court of Appeal has dismissed an appeal by four Anglican Network in Canada churches in the Vancouver area.  The four parishes – St John’s (Vancouver), St Matthews (Abbotsford), Good Shepherd (Vancouver), and St Matthias & St Luke’s (Vancouver) – had appealed a November 25, 2009 decision of Mr Justice Stephen Kelleher awarding beneficial ownership of church properties to the Diocese of New Westminster in the case involving the split in the Anglican Church.  The Diocese of New Westminster’s counter appeal of Mr Justice Kelleher’s decision granting a sizeable bequest to the ANiC congregation of the Church of the Good Shepherd was also dismissed.

The appeals were heard in the B.C. Court of Appeal September 13-16, 2010, before Madam Justice Nicole Garson, Mr Justice P D Lowry and Madam Justice Mary Newbury. 

“Obviously, we are deeply disappointed by this decision which is currently being reviewed by our legal counsel,” said Cheryl Chang, Special Counsel for the Anglican Network in Canada.  “We are awaiting their advice before any discussion about an appeal can take place.  The congregations have always said that if they are forced to choose between their buildings and their faith, they will choose their faith. That position remains unchanged.”

About the Anglican Network in Canada                  

The Anglican Network in Canada now numbers 39 parishes and nine forming congregations in North America – primarily in Canada – with more than 3500 in church on an average Sunday. Members of the Anglican Network in Canada are committed to remaining faithful to Holy Scripture and established Anglican doctrine and to ensuring that orthodox Canadian Anglicans are able to remain in full fellowship with their Anglican brothers and sisters outside North America.

ANiC is under the Episcopal authority of Bishop Donald Harvey and is one of 20 dioceses in the Anglican Church in North America which unites over 80,000 faithful Anglicans in over 600 churches across this continent.  ANiC is also affiliated with South America’s Anglican Province of the Southern Cone, one of the 38 Anglican Churches in the worldwide Anglican Communion.

The Anglican Church in North America has been growing rapidly since its inception and has set itself the goal of planting 1000 new churches in five years – primarily through reaching unchurched North Americans with the life-transforming good news of Jesus Christ.
 
Contact:

Marilyn Jacobson
Anglican Network in Canada communication
1-866-351-2642 ext 4020
mjacobson@anglicannetwork.ca
www.anglicannetwork.ca

The diocese of New Westminster has filed a cross-appeal of a November decision in the Supreme Court of British Columbia. The cross-appeal was filed in response to an appeal filed by the trustees of four Anglican Network in Canada (ANiC) congregations in late December.

The legal dispute arose after four congregations voted to leave the Anglican Church of Canada to affiliate with the more theologically conservative ANiC. Churches in ANiC do not allow the blessing of same-sex relationships as the diocese of New Westminster has done for several years in a few parishes. Trustees for the congregation filed a lawsuit against the diocese to claim possession of the properties and assets for the congregations. But on Nov. 25, Justice Stephen Kelleher ruled that the diocese of New Westminster retains possession of all four properties. He did, however, decide that a $2.2 million bequest from a parishioner at one of the four churches should be held in trust for the building fund of the ANiC congregation.

Read here

Bishop Donald Harvey, moderator of the Anglican Network in Canada, has been appointed Dean of the Anglican Church in North America (ACNA) by Archbishop Robert Duncan. This appointment was unanimously ratified by the ACNA Executive Committee. As dean, Bishop Harvey will support the Primate by representing Archbishop Duncan at various events and meetings both within North America and internationally when the Primate is unable to attend.

The December meetings of the ACNA College of Bishops and Provincial Council identified the need for a dean to support the Primate and ease what was quickly becoming an overwhelming engagement schedule. In his new capacity as dean, Bishop Harvey will work closely with Archbishop Duncan and will be available to represent the Primate and ACNA when needed.

Bishop Harvey, who has nearly fifty years of ordained ministry, has worked closely with Archbishop Duncan for many years, as they together with others provided leadership to Biblically-faithful North America Anglicans and Episcopalians. He is well known and respected by global Anglican leaders and has built relationships with a number of Primates.

“I am delighted that Bishop Harvey has agreed to take on this new responsibility,” said Archbishop Duncan. “When the Executive Committee unanimously recommended that we create the role of “Dean of the Province”, and the Provincial Council concurred, I immediately began sounding out the members of the Executive Committee. There was unanimous sentiment among all consulted that the one senior bishop who could most easily and acceptably stand in my place was Bishop Donald Harvey.”

Read here

The trustees of four Anglican Network in Canada (ANiC) congregations in the greater Vancouver area have filed an appeal of Mr Justice Stephen Kelleher’s BC Supreme Court decision of November 25, 2009, in order to preserve their vibrant Anglican ministries. The four parishes, St Matthew’s (Abbotsford), St Matthias & St Luke’s (Vancouver), St John’s Shaughnessy (Vancouver) and Church of the Good Shepherd (Vancouver), have an average Sunday attendance of approximately 1500 people and are involved in many ministries throughout the week serving their communities.

The trustees of the churches had asked the courts in September 2008 to clarify their responsibilities after the bishop of the Diocese of New Westminster purported to replace the trustees and seize the parish bank accounts in two of the congregations. Mr Justice Kelleher found the bishop had no legal or canonical authority to replace the trustees, but he also said that the trustees owed a duty to use the church properties for the benefit of the diocese and the Anglican Church of Canada. This has left the parties in a difficult and unworkable position since both parties feel they are upholding the principles upon which the Anglican Church of Canada and the diocese were founded, but they have very different views about what that means.

“Our legal counsel have advised our parishes that there are strong legal arguments that warrant an appeal,” said Cheryl Chang, Chancellor (in-house legal advisor) for the ANiC. “Since, the deadline for filing an appeal is 30 days from the date of judgment, and since this Christmas period is the busiest season in the church year with many additional worship services and events, the trustees felt it was necessary to file the appeal now in order to protect their rights and keep their options open. This will also allow the congregations more time to discern together and move forward in unity. It has been difficult over the Christmas season for the congregations to properly consult and determine what course of action is best for their Gospel witness and ministries. They plan to continue looking at their options in the New Year. Filing an appeal now preserves their rights and their ability to maintain their ministries.”

(*Marilyn Jacobson is on holidays

“The Anglican Church League commends the leadership of the Anglican Network in Canada on its godly response to the  decision of the B.C. Supreme Court.

We remain committed to supporting the  faithful men and women of the four congregations (St John’s Shaughnessy, St Matthew’s Abbotsford, St Matthias & St Luke West 49th Vancouver, and Good Shepherd Church East 19th Vancouver) who have suffered over the past months and now face a measure of uncertainty about the future.

Throughout this ordeal it has been apparent to those who have been watching around the world that these four congregations are facing persecution for their steadfast resolve to remain true to the word of God. In this they have shown themselves to be faithful disciples of Christ and true heirs of the Anglican heritage of Cranmer, Latimer, Ridley and others. We have been encouraged by their graciousness amidst extraordinary provocation and by their refusal to surrender biblical principles for the sake of an illusory peace. With or without their buildings they are the blessed people of God who by their example are blessing others.

The ACL Council encourages all its members to continue in prayer for these four congregations, and in particular those who serve them in leadership, at this difficult time.

Mark D Thompson
ACL President.”

Related: Nov 25, 2009 letter from St. John’s Shaughnessy Leadership.

The Supreme Court of British Columbia ruled yesterday that the Anglican Church of Canada’s diocese of New Westminster retains possession of four church properties worth an estimated $20 million. Members of congregations in these churches, who voted to leave the Anglican Church of Canada and join the more conservative Anglican Network in Canada (ANiC), claimed these properties were held in trust for them.

Justice Stephen Kelleher did, however, rule that a $2.2 million bequest from a parishioner at one of the four churches should be held in trust for the building fund of the ANiC congregation.

The congregation at St. John’s (Shaughnessy), the largest parish in Canada, as well as congregations at Parish of the Good Shepherd, St. Matthias and St. Luke in Vancouver, and St. Matthew’s in Abbotsford all voted to leave the Anglican Church of Canada over theological differences, including objections to the blessing of same-sex unions and interpretations of Scriptural authority. In the ensuing dispute over who rightfully controlled the church properties, representatives of the parishes filed two lawsuits against the diocese. They claimed that parish properties are held in trust for the purposes of ministry consistent with historic, orthodox Anglican doctrine and practice, and that the Anglican Church of Canada had broken with that doctrine and practice, notably by allowing the blessing of same-sex unions.

In his judgment, however, Justice Kelleher wrote that “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 [Anglican Church of Canada]. These developments are inconsistent with what many would consider historic and orthodox Anglicanism.” He also wrote that, according to resolutions passed at General Synod 2007, the issue of same-sex blessings is one of doctrine, but not core or fundamental doctrine, for the Anglican Church of Canada. “Accordingly, there is no breach of trust on even the terms the plaintiffs put forth.”  He concluded that the parish properties are “held on trust for Anglican ministry as defined by the [Anglican Church of Canada].”

The ruling also said “a parish does not have the authority to unilaterally leave the Diocese” and that “property effectively remains with the Diocese unless the Executive Committee and  Bishop agree to mortgage, sell or otherwise dispose of it.”

Other parishes across the country are in the midst of similar legal battles over property, and George Cadman, chancellor for the diocese of New Westminster, said this “may well be a precedent-setting decision.”

ANiC chancellor Cheryl Chang said in a statement that it would take some time for ANiC and its lawyers to review the decision. But she added, “It is a great concern to hear that a majority can redefine and change the doctrine of the church and that those who wish to remain faithful to the church’s teaching must change their beliefs or sacrifice their buildings. At the end of the day, if forced to choose, we will have to choose our faith over our buildings.” 

In a letter to be read to parishioners this Sunday, Bishop Michael Ingham of the diocese of New Westminster said he intends to invite these congregations to remain in the buildings where they worship. “I intend to appoint new clergy who will respect and continue the worshipping style of the congregation, who will also work co-operatively with me and the diocese.” His letter also said that the Anglican Church of Canada and throughout the world is a “big tent” with room for a diversity of opinion. “We have a long history of welcome and respect for all people. What unites us is a strong commitment to Jesus Christ and the Christian faith, a tradition of beautiful and sacred worship, and a compassionate response to people in many kinds of need and hardship.”

Justice Kelleher did rule in favour of the plaintiffs on the question of Bishop Michael Ingham’s dismissal of the trustees of St. Matthew’s and St. Matthias and St. Luke, which he ruled “was illegal and of no force and effect.” He wrote that those elected or appointed at the annual vestry meetings on Feb. 24, 2008 “continue to hold their positions as trustees of their respective parish corporations.” But he also stipulated that those trustees must exercise their authority in accordance with the constitution, canons, rules and regulations of the diocese. In light of other parts of his decision, Justice Kelleher said they may not want to remain in those positions, but he left it to the parties to find a workable solution or return to court.

Justice Kelleher also ruled that a $2.2 million bequest left to the “the building fund of Church of the Good Shepherd” by Dr. Daphne Wai-Chan Chun should be held in trust for the ANiC congregation. “Dr. Chun intended the proceeds to be applied to the building needs of the parish that served the Chinese community. That parish voted unanimously to receive Episcopal oversight from the Province of the Southern Cone and to affiliate with ANiC. 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.” 

“We are very grateful that Mr. Justice Kelleher understood and respected Dr. Chun’s intention when she left her bequest to our building fund” said Eric Law, a trustee of the congregation of Good Shepherd.  “We look forward to using those funds toward the building we currently worship in.” 

Bishop Ingham also wrote in his letter to parishioners that his prayer is that “we might put all this sad conflict behind us and get on with the mission of Jesus Christ. No good is served by bitterness or triumphalism. The decision of the Court is clear. And the purpose of the Church is equally clear. We are here to serve the mission of God and the well-being of all of God’s children.”

St Catharines, Ontario – Three bishops were consecrated today in St Catharines, Ontario into the Church of God for ministry in the Anglican Network in Canada. The Right Reverend Stephen Leung, the Right Reverend Charles Masters and the Right Reverend Dr Trevor Walters were consecrated today by the Most Reverend Robert Duncan in a service which saw the participation of 15 bishops and more than 60 priests and deacons from across North America.

The service of consecration was the culmination of the second synod (church convention) of the Anglican Network in Canada (ANiC). During the synod, ANiC moderator, the Right Reverend Donald Harvey announced his intention to step down in November 2010. The Right Reverend Malcolm Harding, who like Bishop Harvey emerged from retirement in November 2007 to serve as the original bishops of ANiC, re-retired earlier in June.

It was also announced that the third synod would be held in Ottawa in early November 2010. The synod is planned to coincide with the visit by the Right Reverend Dr Michael Nazir-Ali, recently retired Bishop of Rochester, to ANiC’s St George’s Anglican Church for their 125th anniversary celebration.

Messages of greeting, support and encouragement were sent to synod from a number of bishops from the Church of England and from Primates (Church leaders) representing the majority of active Anglicans in the global Anglican Communion.

ANiC is under the Episcopal authority of Bishop Harvey and is a diocese in the Anglican Church in North America which unites over 100,000 faithful Anglicans from across this continent. It now numbers 33 parishes and eight forming congregations in North America with more than 3500 in church on an average Sunday.

Members of the Anglican Network in Canada are committed to remaining faithful to Holy Scripture and established Anglican doctrine and to ensuring that orthodox Anglicans are able to remain in full communion with their Anglican brothers and sisters outside North America. The newly adopted mission statement for the Anglican Network in Canada is “Building Biblically faithful, Gospel sharing, Anglican churches.”
 

Notes of the greetings when Archbishop Robert Duncan spoke to the second synod of the Anglican Network in Canada Church. Not necessarily verbatim

It is my joy as your Archbishop to greet you. It is my great joy to be here among you.  We have come a long way.  These are happy days.

It is easier to escape Egypt than Egypt’s patterns and behaviours.  Let our synods be characterized by love, respect and care for one another and our commitment to the common good – committed to let Jesus have his way with the likes of us.

I give thanks to God for every remembrance of you .  This first Archbishop of ACNA always looks north with the greatest fondness.  You stretch an incredible distance from one coast to the other.  We are thankful for the way you stood and you stand. I will express my formal thanks to Moderator Don Harvey in my sermon in the consecration service.  I am grateful and thankful to Don in these years.  We have been so many places together.  You had the right man in leadership in these days. 

I greet you as the slave of the slaves of the slaves of God.  The Archbishop is tertiary and the congregations are primary.  The importance of the overseer is what is overseen.   The overseers are apostolic- but the purpose is for the church gathered in the local place. 

I am tertiary, the bishops are secondary, and you are primary. I believe that with all my heart and all my mind. I am humbled by the office you have entrusted to me: the notion of having a primate over a great church in the international family of churches. The office is a great office. The incumbent is a lowly incumbent. You honour the office.  The incumbent who approves the theme of your assembly – God’s strength is made perfect in our weakness.

I bring you greetings from the other 27 dioceses in North America, 10 of whose bishops are here.

Greetings from Fellowship of Confessing Anglicans Primates Council in which I was recently seated, which includes the primates of Kenya, Nigeria, Rwanda, Tanzania, Southern Cone, Uganda and West Africa.

An increasing number of provinces are in full communion with us.  We are thankful for provinces around the communion. What we stand for is what they stand for.

We are mainstream Anglicans.  Our identity is mainstream Anglican.  We hold ourselves to the holy scriptures, to the great tradition, and to the Holy Spirit

Our mission is to reach North America with the transforming love of Jesus Christ.

Our method is converted individuals multiplying congregations fuelled by the Holy Spirit.  We used to think it takes money. We used to think it takes building.  It only takes the Holy Spirit.

Our distinctives are that we are loved by Jesus.  We have been called his friends. We are aware of who we are in his eyes. We are characterized by joy, love, fearlessness and mercy.

We are called to be holy

To love and know the scriptures – much of them by heart
To love the tradition – embrace the tradition.  We are not the first to believe.
To be constant in prayer.  This people talks all the time to their Father
To be committed to marriage and the family.  A lot of what the present struggle is about. Holiness is to honour the vows and the families.
To prepare the way for Him
We sacrifice for the sake of others.   We are churches for the sake of others, for those who do not know Jesus.

What is the Lord doing among us? What will the 21st century be for us in North America. It could be the Anglican century in North America. Once we are back on track as Anglicans – within the Christian church – we are the great movement that knows that the future is shaped in the same way as the past.  We are an ancient future movement of the friends of Jesus.   We will reach a rising generation.  That is the work you are an important part of, in this realignment of the Christian Church.

Greetings from Anglican Mainstream, Fellowship of Confessing Anglicans (UK and Ireland), the Bishops of Chester and Winchesterr and the Archbishop of Sydney.

Anglican Mainstream sends warm greetings and prayers to the Anglican Network in Canada and rejoice with you in celebrating the consecration of your new bishops. The brave biblical faithfulness of your Network as part of the Anglican Church of North America is an important witness in today's society to the loving purposes of God for the wholesomeness of society and family life, the supreme lordship of Jesus Christ and the reliability and authority of the Bible.
 
Dr Philip Giddings, Convenor
Canon Dr Chris Sugden, Secretary

From the Fellowship of Confessing Anglicans (UK and Ireland)

To Bishop Donald Harvey, and Bishops-elect Stephen Leung, Charlie Masters and Trevor Walters

On behalf of The Fellowship of Confessing Anglicans (UK and Ireland), we send warmest greetings and assurance of our prayers to you as new Canadian Bishops of the Anglican Church in North America. We were very privileged to welcome your Moderator Bishop Don Harvey in February to speak at a meeting at General Synod and your Archbishop, Bob Duncan to speak at our launch in London in July. We are delighted to be in fellowship and communion with you. We pray for your ministry and your communities as you witness in Canada to historic Anglican Christian faith, to the supreme Lordship of Jesus Christ and to the authority of the Holy Scriptures to bring God's truth, life and freedom to your people. May the Holy Spirit empower and strengthen you for the work to which he has called you.

Revd Paul Perkin – Chair
Bishop Michael Nazir Ali
Bishop Wallace Benn  President of Church of England Evangelical Council and Bishop of Lewes, England
Revd Eddie Coulter, Church of Ireland
Mrs Sarah Finch, Member of General Synod CofE
Revd Francis Gardom  Anglican Association
Chancellor Dr Tudor Griffiths Church in Wales
Revd David McCarthy, Scottish Episcopal Evangelical Fellowship
Mr Hugh Pratt
Rev Rod Thomas  Chair of Reform
Canon Dr Chris Sugden  Secretary

Fellowship of Confessing Anglicans (UK and Ireland).

From Archbishop Peter Jensen, Secretary of GAFCON Primates Council:

Be strong in the Lord and in his mighty power. Put on the whole armour of God so that you can take your stand. Preach the word, correct, rebuke and encourage. With our love, prayers, support and encouragement for your ministry.

Greetings from the Bishops of Chester .

Dear Bishop Donald

I am writing to send my warmest fraternal greetings to you and your fellow members of ACNA, as you prepare for the consecration of the new Bishops on 13 November.

It is sad that it has become necessary for the ACNA to operate as a separate ecclesial entity from TEC and the Anglican Church of Canada.  We pray for reconciliation, but that will only be achieved on the solid foundations of Christian orthodoxy, for which ACNA so clearly stands.

Please convey my fraternal greetings to the new Bishops, and to everyone who gathers for the Service of Consecration.

Best wishes

+ Peter

Greetings from the Bishop of Winchester

Please give my warm greetings in Christ to all who have gathered to worship God in today’s consecration service and especially to the three new bishops.  I have ACNA regularly in my prayers as I pray that we in the Church of England will also remain faithful

+Michael Scott-Joynt, Bishop of Winchester

Greetings from the Synod:

That this Synod of the Anglican Network in Canada Church sends its loyal greetings to Her Majesty the Queen and assures her of our prayers for her long reign and for success in all her endeavours as the Queen of Canada.

That this Synod of the Anglican Network in Canada Church sends its greetings to His Grace the Lord Archbishop of Canterbury and assures him of our continued prayers for the guidance of the Holy Spirit in the strengthening of the bonds of affection in the Anglican Communion as a witness for our Lord Jesus Christ.

View here  to see live the synod of the Anglican Network in Canada November 11-13, culminating in the consecration of Stephen Leung, Charlie Masters and Trevor Walters as bishops on Friday November 13 at 6 p.m.GMT.

Read Daily Blog note of presentations and information here

The Mission Statement of ANiC: 

Building biblically-faithful, gospel sharing, Anglican churches. 

The Vision Statement:

Every region, enduring churches, excellence in leadership and equipped members.

View the schedule here ( GMT – 5 hours)

Extract from Moderator Bishop Don Harvey's charge:  thanks to Archbishop Greg Venables and distress at "invitation" from the Vatican

Archbishop Greg Venables’ bold willingness to accept our Network into the jurisdiction of the Southern Cone on a pastoral, emergency, temporary basis, despite international opposition from very high sources, made what we are doing here today possible, and without that action, not just us, but several other dioceses and their bishops would have been backed into an impossible corner.

The Constitution, Canons and By-Laws will become a major project for the coming year.

Two years ago when we launched our movement with two bishops, two deacons, two priests and two parishes, we now have six bishops, 33 bishops and plants, over 80 clergy and with an average Sunday attendance approaching 4000.

We have made the conscious decision that we want to remain part of the Anglican Communion, even though there are many other options open to us.  Despite the ravages Anglicanism is enduring at home and abroad, it is still a valid expression of Christ’s One, Holy, Catholic and Apostolic Church.

I was distressed by the recent pronouncement from the Vatican offering refuge to disenchanted Anglicans. Apart from being an intrusion at the very highest levels of one major church into the internal affairs of another ( under the thin disguise of being ecumenical) this invitation offers very little of any real substance that is new.  Indeed, I find the words in the official communiqué referring to the “Catholic Church and the Anglican Tradition” offensive in the extreme and reporters who suggested that this may be a “solution” to the Network’s needs are really not aware of what we truly profess. Over and again, while explaining why we departed from the Anglican Church of Canada, we have stated that we want to remain faithful and remain part of the worldwide Anglican Family.  To accept this “invitation” would immediately deny both of these precepts. Nor am I prepared to say that for the last 45 years I have been ministering under Holy Orders that are defective in any way, much less are they “null and void”.  This is not the way to foster good ecumenical dialogue.
 

Stand Firm:

October 21, 2009

Today, the Roman Catholic Church released an “Apostolic Constitution” offering a way for some orthodox Anglicans to enter into a full communion relationship with the Roman Catholic Church while preserving some aspects of their Anglican heritage. This action recognizes how deeply broken the Anglican Communion has become as a result of the abandonment by some Anglican leaders of historic Christian teaching and discipline. Like the Roman Catholic Church, the Anglican Church in North America – of which ANiC is a part – has also provided a means for those within North America to remain faithful Anglicans.

“We are encouraged to see the Archbishop of Canterbury working with the Vatican to make accommodate these Anglicans,” said the Right Reverend Donald Harvey, moderator of the Anglican Network in Canada. “We urge him to do the same for us by joining with the Anglican Primates who have already officially recognized and endorsed the Anglican Church in North America.”

The Most Reverend Robert Duncan, Archbishop and Primate of the Anglican Church in North America also responded, saying in part, “We… thank God for the partnership that orthodox Anglicans have long enjoyed with the Roman Catholic Church… While our historic differences over church governance, dogmas regarding the Blessed Virgin Mary and the nature of Holy Orders continue to be points of prayerful dialogue, we look forward to an ever deepening partnership with the Catholic Church throughout the world.” [See Archbishop Duncan’s full statement here.]

“While we can’t know the full significance of the Vatican’s move until we have fully reviewed and considered the content of their ‘Apostolic Constitution’,” adds Bishop Harvey, “the three questions I am most interested in seeing answered are:

1. “Will the Roman Catholic Church require Anglican priests who choose this option to be re-ordained?

2. “Will people who accept this invitation have to subscribe to Roman Catholic dogmas to which the Anglican Formularies are diametrically opposed – such as “Papal Infallibility”, the “Immaculate Conception” and Transubstantiation?

3. “Will Anglican priests – especially married ones – choosing to accept the Roman Catholic Church’s invitation have equal status with existing Roman Catholic clergy and will their ministry be interchangeable and welcomed in Roman Catholic parishes?”

After hearing the news today, an ANiC priest wrote Bishop Harvey: “As for me and my house, we will remain ever faithful to the authority and primacy of the Holy Scriptures and the Faith and Order of the undivided Catholic Church. I need not become a Roman Catholic to be a Catholic Christian. As an Anglican, I am a Catholic Christian.”

“A quote from the English reformer John Jewel (1522-1571) sums up where I believe we in ANiC stand,” says Bishop Harvey. “Jewel said: "We have returned to the Apostles and the old Catholic Fathers. We have planted no new religion but only preserved the old that was undoubtedly founded and used by the Apostles of Christ and other holy Fathers of the Primitive Church."”

Today, ANiC numbers 32 parishes with 3500 Canadians in church on an average Sunday. Members of the Anglican Network in Canada are committed to remaining faithful to Holy Scripture and established Anglican doctrine and to ensuring that orthodox Canadian Anglicans are able to remain in full communion with their Anglican brothers and sisters around the world.

ANiC is under the Episcopal authority of Bishop Donald Harvey and is a diocese in the Anglican Church in North America which unites over 100,000 faithful Anglicans from across this continent.

St. John’s Anglican Church in Vancouver will join a new group of conservative parishes, the latest move in an ideological battle over same-sex marriage with the local Anglican authority.

St. John’s Rev. Canon David Short will be in Texas this week for meetings to create the Anglican Church of North America. It will include roughly 700 parishes, which are united in their belief in orthodox principles. All 30 parishes that make up the conservative Anglican Network in Canada will join.

The new group will be a permanent home for St. John’s, the largest Canadian Anglican parish, with four services and roughly 1,000 worshippers most Sundays.

After leaving the Diocese of New Westminster, which authorized same-sex blessings in 2002, St. John’s joined the Diocese of the Southern Cone in South America in February 2008. The new Anglican Church of North America will unite it with conservative Anglican churches closer to home.

"The new (group) is the response of many orthodox groupings in Canada and the United States to the innovation of Canadian and American churches," said Short. "We believe that you cannot innovate. It’s the same Jesus yesterday, today and forever."

While St. John’s will gain a new spiritual home this week, it is fighting to keep its physical home, a property worth roughly $15 million in Vancouver’s upscale Shaughnessy neighbourhood.

In August 2008, the Diocese of New Westminster froze the bank accounts and fired the trustees of two conservative churches, St. Matthew’s in Abbotsford and St. Matthias & St. Luke in Vancouver, claiming control over their assets.

Fearing they might be next, St. John’s and Good Shepherd Church, a Vancouver parish that offers services in English and Cantonese, teamed up with St. Matthew’s and St. Matthias & St. Luke. All four churches are joining the Anglican Church of North America this week.

The four churches took the Diocese of New Westminster to B.C. Supreme Court in September to determine whether the diocese or the parish owns church property.

Arguments in the court case wrapped up on June 11, and a decision by Justice Stephen Kelleher is expected later this summer.

But the case represents more to St. John’s than simply a dispute over a building.

"The case is really about who are legitimate Anglicans, and who are theological innovators. These are things Anglicans feel very strongly about," Short said. "It is precisely about our freedom to worship God in orthodox Anglican tradition."

At a parish meeting on Sunday, lawyers Geoff Cowper and Stanley Martin, representing the four churches, received a standing ovation from parishioners at St. John’s. But the issue of taking religious battles to court is not a light one for Christians.

A memorandum near the entrance to the church contains a passage from Corinthians about believers going to court before pagan judges. The passage quotes Paul as saying, "This dishonours God, flaunting failure in the church by washing dirty Christian linen in public."

The memorandum says that’s not the situation St. John’s faces.

"There are areas (of the Bible) that implore us not to take our brothers and sisters to court, which means we shouldn’t be suing other Christians. But then how do you hold that intention with the fact that they are freezing our bank account and firing our trustees?" asked St. John’s spokeswoman Lesley Bentley. "We didn’t enter into it lightly."

Since deciding to go to court in September, St. John’s has racked up $750,000 in legal bills, including $120,000 toward a two-day mediation session in May. As of last Monday, it had received donations covering more than $611,000. But it’s money that could have been spent elsewhere, said Bentley.

"We are partners with the Diocese of Upper Shire in Malawi, and $120,000 would keep them operating for four or five years," she said.
 

Counsel for the diocese continued their closing argument, followed, in the mid-afternoon, by counsel for the ANiC parishes offering a partial reply to the end of the day and submitting a more complete written reply by the following Monday morning.

Counsel for the diocese

George Macintosh, Q.C. began the day by handing up to the judge a copy of the Anglican Consultative Council’s process to apply to be a new province, noting it had been mentioned yesterday. He said it references the mechanisms they employ to initiate a new province and highlighted S. 12 for Mr. Justice Kelleher.

Mr. Cowper, Q.C., agreed to allow it to be marked as an Exhibit on the understanding there is debate in the Communion, and between the parties in particular, on whether there are other processes available, and that the ACC is considered an advisory body only; it is – as its name denotes – “consultative”. (Note: it is highly unusual to submit further evidence during closing argument, but this “Expedited Trial” has allowed many unusual processes by agreement)

Mr. Macintosh also handed up a case that was decided two days earlier in the Court of Appeal in the State of California .

He referred to Mr. Cowper’s comment yesterday that the deferential approach is not the law in Canada. The purpose of that submission, he said, would be to urge the court not to consider the American cases. He said he took issue with Mr. Cowper’s view that the U.S. law developed differently in Canada. “It may well be that U.S. constitution took the court into the same place, but it is clear in my submission that courts in both countries defer to internal church rules and . . . defer to the church on theological issues.” He referred to a paragraph in Mr. Cowper’s argument that quoted a 1979 case in which the U.S. Supreme Court specifically said the neutral principles of law approach (NPA) was “mandated by the First Amendment”, to which Mr. Macintosh said “ I say fair enough.” However, he respectfully disagreed with the next paragraph, which says the courts in Australia and Canada have noted the NPA but have not adopted it, .

It was Mr. Macintosh’s submission that an alleged trust gives way to a statutory or contractual regime that is inconsistent with it. In conclusion, he made three counter points:

1. Both in Canada and the U.S., the same 2 principles are employed:

(i) Questions of theology will be left to the church to resolve by its internal mechanisms, and

(ii) The court will employ contractual and structural rules of the church to ascertain whether they are provided for in that structure.

2. One reason the courts do so in both countries, is because a statutory provision prevails. If the legislature has spoken, and in his submission, “it has spoken in s. 7 of the Act (which incorporated the diocese) – a parish can’t dispose of property without the bishop’s consent”.

3. The parishes became party to the canons of the diocesan synod and the general synod as a matter of contract.

He said there are 2 seminal cases, Dorland and Itter v Howe, which rely predominantly on U.S. case law. Half the cases cited are U.S. authorities he said.

He quoted from Professor Ogilvie who said “In determining church property disputes, courts rely on two basic legal categories, contract and trust. Religious organizations are treated in law as voluntary associations whose legal basis is the multipartite contractual consent of all members to the doctrine, practices, and discipline of the organization. When property disputes arise, they are equally subject to the doctrine, practices, and discipline, in relation to such disputes, unless they simply leave”. He cited Craigdallie v Aikman and Hofer v Hofer in support.

He said the US’s neutral principal of law approach is the same as s. 2 of our Charter. He highlighted Dorland, and Itter v Howe again, and the underlying principles of voluntary associations. He said that when the right of property is decided by doctrine, and the highest body has decided by the highest adjudicators, then the legal tribunal must defer to them. He made a reference to a Pennsylvania decision and some further references by Canadian courts explicitly adopting the neutral principal of law approach, Balkou v Gouleff and Wolfe.

“My point this morning is that the US approach and the Canadian approach is the same, albeit the American approach may have been driven by their constitution”, he said.

He again stressed that his next argument was in the alternative because it’s in respect of the trust, saying, “The trust which the plaintiffs allege is simply not one that is countenanced by the cases on which they rely. The Free Church line of cases and those following, make very clear that a religious purpose trust will only be upheld if the trust alleged goes to the heart, to the core, to the centre of that church. It has to undermine what that church is about”. He said that was “hardly surprising when you look at what is sought is to disassemble, to take the four churches from the ACoC. Not surprising, the courts have said, just because you sincerely believe a different viewpoint, it is by no means enough to allow you to break away and take the property. If your view of scripture will not allow you to stay, of course you are free to leave. In order to take the property with you, you have to demonstrate it is at the core of the church.”

He said this was “central” before a valid religious purpose trust is established. He said the line of case law from Free Church shows it must relate to “fundamental doctrines”. “Just because you have a sincere different view of the bible – that’s not enough.” “I say with the greatest respect, the plaintiffs’ opposition to same-sex blessings is completely well founded, completely within their religious freedom to interpret the bible that way. I don’t endeavor to minimize what the plaintiffs hold dear. The courts say, before you can leave and take the property, you have to prove it undermines” the fundamental doctrines.

Reading from Dorland [my inserts are to show the parallel in this case], he said “the whole burden rests on the [parishes] to show beyond a reasonable doubt, that the [diocese] has “so far departed from the fundamental principles of the society or have so far departed from its discipline and worship. . . to cause them to be no longer members of the society. Such a departure . . .is so deep and radical as to destroy its identity. . .a suicidal destruction of the body itself, leaving its property derelict.”

He said the trust and abuse of it must clearly be established. He then referred to Chong v Lee, which described the principle in relation to a church being “formed for the purpose of promoting certain defined doctrines”, and how they must be ascertained. He referred to Anderson v Gislason, saying in that case (involving a proposed merger of Lutherans and Unitarians), Unitarian doctrine denied the divinity of Christ, whereas for Lutherans, the divinity of Christ was a core tenet of the church. “The purpose of the trust goes to the very identity of the church”, he said.

He said that in Itter v Howe, (Ontario) Chief Justice Hagerty approved U.S. law, saying the courts will only interfere where an abuse of trust involves fundamental doctrine. Mr. Macintosh said that was not the case here. He noted the St. Michael’s Report (SMR) says it is not a matter of core doctrine, it is not addressed in any of the creeds, they did not believe it was a communion breaking issue, and that the 2007 General Synod accepted the report and determined it was not “core”. He said same-sex blessings are not addressed anywhere, including the Solemn Declaration, which doesn’t embrace and define doctrine. In his submission, the parishes have not in any way linked this issue to the tenets or principles of the Anglican Church.

He said any trust alleged is not sufficiently core, but if Mr. Justice Kelleher did find it is sufficiently core, then he submitted the trust alleged does not pass the test required. He said there is no evidence supporting the terms of the trust that the parishes allege. “The Solemn Declaration upon which they rely is not a trust as it does not speak of trust or property. No other document links the Solemn Declaration to property.”

Referring again to Dorland, which he said resorted again to American law, “it must be a plain and palpable abuse of trust” for the court to interfere.

He said the jurisdiction to define doctrine is left to the General Synod and pointed out that the consecration of churches involves a rite from the 1962 BCP that says the bishop is “to consecrate and set apart . . . according to the rites and ceremonies of the ACoC”.

He said the phrase of “full communion with the Church of England throughout the world” is inconsistent with principle of autonomous provinces. Quoting from Principle 12 of The Principles of Canon Law Common to the Churches of the Anglican Communion, he read 7 points regarding self-governance, including that the Provinces are autonomous, able to order and regulate their own affairs, the validity of any act is governed by the law of that church, etc.

He said the trust plead by the diocese is for “promulgation of the Christian faith, as defined by the ACoC, and according to the Constitution and Canons of the Anglican Church of Canada” and submitted there are various rationales for that interpretation of the trust.

He again referenced Principles of Canon Law and asked are the parishes part of the Communion?

Mr. Justice Kelleher asked where the Principles of Canon Law came from. After the morning break, Mr. Macintosh replied that it was a report appended to George Cadman’s affidavit, written by Chancellors and others from the Anglican Provinces of Ghana, U.S., Hong Kong, Canada, Indian Ocean, West Indies, and England. Mr. Macintosh said it includes a forward by the current Archbishop of Canterbury and there is a Disclaimer in it saying that it is not law. He added, “this is not surprising because they don’t have the power to bind the Provinces.”

He also referred to section 7 of the Act which incorporated the Diocese of New Westminster and said the trust the diocese has plead is consistent with the history of how property is held by the diocese.

He referred to the “Dennis Canon” of the Episcopal Church, (which essentially says parishes hold property in trust for the national church) to say “the courts have stated that the Dennis Canon merely states expressly what is plainly implied”.

Mr. Macintosh said that although the parties may have very sincere differences over the issue, it is important to note that while the ACoC is not being sued and is not joined in this case, the General Synod determined in 2007 that same-sex blessings are not core doctrine.

Mr. Macintosh then referred to a section of his written argument that he did not intend to speak to, but noted that section was important. Mr. Justice Kelleher remarked somewhat jokingly (referring to both counsel), “I appreciate that neither of you have said I commend it to you “at your leisure”.

As Mr. Macintosh began his argument on Cy Pres, he reiterated his starting point that there is not a trust to begin with which the Cy Pres analysis can get to. He said all the Cy Pres cases, including Varsani, began with a trust declaration or a trust deed which is not the case here.

He highlighted two points from Varsani, as “obvious but fundamental”:

1. The ruling turned on the Charities Act; and

2. We don’t have comparable legislation.

He said this distinction is recognized by Picarda in The Law and Practice Relating to Charities. The Charities Act didn’t replace the common law but supplemented it and the common law had rigorous standards.

He submitted that if the case was decided on a trust, the diocese’s evidence supports a trust for the diocese. Any Cy Pres scheme is to be “as close as possible” and that means the property belongs to the diocese. It is not impossible to perform the trust, he said, so the Cy Pres impossibility doesn’t arise. This stems from the fact the diocese’s main case is grounded on the statute and they have constructed a trust that echoes the structure of the church.

The parishes have deeply felt religious beliefs and they can choose to leave, he said. “The Archbishop of Canterbury’s Panel of Reference (POR) has weighed the submissions of both sides and they said there is nothing here that cannot be handled by the bishop. The POR, in my submission, should be followed closely.” He said the POR determined, even from the parishes’ viewpoint, it’s not impossible to stay in the church because Episcopal Oversight is the correct way to proceed on the issue.

He recalled “the Tweedale evidence” and said there are tens of thousands of conservatives that don’t find it impossible to carry on within the church. On the evidence, it is not impossible and Cy Pres doesn’t arise. He said a number of dioceses are at various stages of proceeding with same-sex blessings and that “obviously” Episcopal Oversight is an acceptable option. He said the parishes don’t meet the strictness for Cy Pres under the Common law. His “main point” was that “you don’t have to come to Cy Pres because its so pres” – or so close to the original intention (to leave the property with the diocese) that it doesn’t require adjustment.

He then referred the judge to a number of paragraphs in his written submission on the issues relating to the broader ramifications of Cy Pres and freedom of religion, though he did not address them orally.

He concluded by summarizing his main points:

1. The statute, canons and bylaws resolve the matter fully.

2. The case upon which parishes depend does not come close to the stature that is called for under Free Church analysis as being fundamental and central to the church.

3. The parishes have not satisfied what is called for under trust law to establish the trust they claim.

4. If a trust is found on the evidence, it’s the one expressed by the diocese.

5. Cy Pres at common law does not come into play here because a Cy Pres analysis is not justified. If there is a trust, there is not the impossibility of performance.

6. Cy pres must be as close as possible to the original trust and the parishes’ proposal is as far away from the true original trust as is possible. The parishes have left the ACoC, gone outside of the Anglican Communion worldwide, and they are trying to take their churches to a place back in 1893, which is not the way Anglicanism has been (implying it has “moved on” in its doctrine and is not “fixed” in doctrinal development by the Solemn Declaration of 1893).

Ms. Ludmilla Herbst, also counsel for the diocese, then stood to speak to the parish histories and the Chun Bequest held by the Church of the Good Shepherd.

On the facts respecting the parishes, she said she would only highlight examples from her compendium “to provide examples of how the statutes and canons have infused the life of the parishes at issue.” She pointed to paragraphs in the written argument relating to the appointment of clergy, diocesan connection and said the “parish histories illustrate the diocese and ACoC are engrained in the fiber of these churches.”

She said reviewing the parish histories was important “to get a grip on where the Solemn Declaration fits into this” since the parishes “refer to the Solemn Declaration in the absence of a written declaration of trust.” She said the parishes “claim the Solemn Declaration flows through to the parish level in the front of the prayer book, but the evidence has been that the 1962 BCP is the first BCP that included the Solemn Declaration in the front cover. Prior to that, no others had.” She also noted that the Solemn Declaration is not in the BAS.

She said 1962 (when that edition of the BCP came out) is more than 60 yrs after each of the parishes of Good Shepherd, St Luke’s, and St. Matthew’s were established, 40 or so years after St. John’s was established, and 2 yrs after St. Matthias was established. She noted that Good Shepherd uses the BAS.

She said parish histories show the diversity and flux of the congregations including the theological basis, but “the objective constant in these parishes is the connection with the diocese and ACoC”.

She pointed Mr. Justice Kelleher to parts of the written argument on the history of the parish of St. John’s. She discussed Bishop de Pencier and s. 7 of the Act which incorporated the synod, to argue the parish corporations are inherently part of the diocese. She reviewed when the current building was built (1950’s) and the consecration service from the BCP at the time, saying “While it is not a trust declaration, it is certainly more so than the Solemn Declaration.”

She reviewed some statements of their witnesses, made in affidavits, including Rev Tom Anthony, Christine Trendell, daughter of Canon Trendell, Robin Woodward and Nancy Southam, regarding monies raised for the building of the church and contributions made by their families and others, claiming they were for ACoC purposes. In terms of the statute and canons, she said approval was sought and obtained by diocesan council when they renovated in the 1980s.

She referred to evidence about Harry Robinson “transforming the parish” in some ways, saying Mrs. Stevenson referred to his “changing the church’s culture”. “The idea that the congregation has been uniform throughout is not there”, she said.

She briefly referred the judge to various paragraphs of her written argument and mentioned diocesan involvement in the other parishes with some comments, including:

· St. Matthias and St. Luke’s land was originally intended for a diocesan office

· St Luke had quite a bit of diocesan involvement and “diocesan connected priests”

· Rev Randolf Bruce, former incumbent of St. Luke, said “when he came, it was a liberal parish”

· Good Shepherd was a mission parish in 1889

· The current church was built in the 1990’s

· St Matthew’s was established in 1900 and the current building was built in 1997 by a priest sent by the bishop to establish a church in a new location

RE: The Chun Bequest

Ms. Herbst said the diocese’s position is that the monies should continue to be held in the building fund of the incorporated parish in the diocese of New Westminster, whether it is held pursuant to statute or canons or a trust. She argued the intent was to bequeath to the building fund of Church of the Good Shepherd. She disagreed with the parish’s submission that if they don’t succeed on the whole, there should be an order for the ANiC congregation. “That’s not what the will said. Until this litigation, everyone referred to the parish corporation”.

She said there is evidence of people at the parish, the executor of the will and the diocese, treated the fund as affiliated with the corporation. The parish sought diocesan council permission for the Hong Kong property to be sold, pursuant to section 7 of the Act which incorporated the Synod, which “deals with real and personal property”, she said. Permission for the sale was given by the bishop and diocesan council. “The Executor of the will also seems to have been under no confusion as to the gift (being given to) a parish that was incorporated under the Synod act.” She said that “Church of the Good Shepherd or parish of the Church of the Good Shepherd is the name of the corporation” and that the correspondence between the Hong Kong solicitors and the Diocesan solicitor acting on behalf of the parish all referred to the parish corporation and included a certificate of incorporation.

She referred to her written argument saying, “This is an illustration of statute and canons providing a framework for dealing with property.” Given the clarity of the language and the way the parties have conducted themselves, “this is not a congregational church”, she said. There is a history of diocesan involvement and it was a mission of the diocese,

She said that Dr. Chun wouldn’t have contemplated the funds would be given to an ANiC congregation, saying a review of the will shows that Dr. Chun didn’t give along denominational lines.

 She said that Rev Pang (former priest at Good Shepherd) is described at “very orthodox” in the parish affidavits, but he said he doesn’t know what this means (in his affidavit). He is one of the people who opposes leaving the diocese she said, and he broke with St. Matthias and St. Luke where he attended after retirement “because he didn’t like them breaking with the diocese.”

She said the parish was making “a gross over-generalization for establishing a trust in any event.” Rev Pang said even if there is cultural conservatism in the Chinese community, that doesn’t necessarily mean theologically. Ms. Herbst suggested that because Dr. Chun was a successful physician in Hong Kong around or just after the time women were first ordained in Hong Kong in 1943, and that she “led the way on some issues”, she seemed to have a “more forward view” and would quite likely be more liberal. When Mr. Justice Kelleher questioned her on the evidence to support that suggestion, she said “Well, I am taking some liberty with that”. She then said it was clear from the will that the parish corporation was the beneficiary of the building fund.

She said there was no basis for a finding of impracticability should the diocese get the building fund. The declaration that established the parish said the limits of the parish are the Chinese community and the suggestion the diocese doesn’t have enough Chinese members was another over-generalization she was “trying to chip away at”.

In response to Rev Stephen Leung’s comments regarding the Chinese being a more conservative culture, she said that there are Chinese people who do attend the parish of St. Chad’s in the diocese. The priest of St. Chad’s said ½ of the parishioners are Chinese. She admitted it is a “small parish. . .but so was Good Shepherd for many years. The fact there is a small congregation now. . .there is no evidence that the Chinese will stay away.” Referring to Rev Pang, she said that not all have been driven out.

She said the congregation at St. Luke’s had an interesting history, and it grew when Rev Randolf Bruce, who is not Chinese, was the incumbent. She said Ms. Cheng said he was theologically liberal on homosexuality, but it was quite clear he was a much loved priest while he was there.

She concluded her remarks by saying, “Whether there will be an immediate need for the building remains to be seen, (but) that’s not the test for Cy Pres”.

Mr. Macintosh then stood and spoke to Mr. Justice Kelleher regarding a correction of some of his morning remarks regarding Cy Pres. He wanted to make clear that his comments were addressing the trust alleged by the parishes saying that trust does not meet the test of impossibility or impracticability.

He again quoted the POR report which said, “The argument that in order to remain “in full communion with the Church of England throughout the world” it is necessary for dissenting clergy and parishes to separate themselves from the diocese of New Westminster . . . cannot be sustained. The Church of England itself remains in full communion with the Diocese of New Westminster and Bishop Ingham.”

He reiterated that it was by no means impossible to have these beliefs and stay in the ACoC, citing “the Tweedale evidence”, the POR approved Episcopal Oversight without jurisdiction, and the conscience clause.

He also reiterated a second point against Cy Pres saying the parishes’ trust cannot be as near (as possible) to the original trust. The parishes “scheme – what they are proposing – is totally contrary to the polity of the Anglican Communion and how they govern themselves and resolve disputes”, he said. “It has them taking four parishes away from the Anglican Communion and it’s unreasonable to say that is close to original purpose.”

He read from Attorney General v Governors of Christ’s Hospital [1896] where Mr. Justice Chitty said, “in a word, I cannot under the guise of executing the trusts cy-pres, upset the constitution of the present body, reduce them to the position of bare trustees of the funds vested in them. To establish such a scheme as that submitted by the Attorney-General, nothing less than an Act of Parliament would suffice.”

He said his second point of why the parishes’ trust is not as near as possible to the original purpose was due to their uncertain status within the Anglican Communion.

“They’ve taken the congregations out of the Anglican Communion. It cannot be the case that it is as close as possible to the original trust”, he said.

 Counsel for the ANiC parishes

Mr. Cowper then had an opportunity for Reply beginning around 2:50 p.m. He explained to Mr. Justice Kelleher that he had agreement from Mr. Macintosh, and with his Lordship’s permission, he would use the rest of the day for oral reply and would submit a more complete written reply by Monday (which he would submit to Mr. Macintosh first for any concerns or comments) and the trial would end today. Mr. Justice Kelleher agreed.

Mr Cowper said that it was important for the judge to know and for him to state clearly, “that Cy Pres applies no matter what the trust. It would just apply differently.” You ought to apply a doctrinal trust, it’s just a different doctrinal trust affecting the promulgation of the Christian faith. (The question is – is it a faith as defined in the Solemn Declaration, or is it as defined by the ACoC?)

He said if a trust is found from the parishes’ perspective, then it is the actions of the bishop and diocese that are contrary to the constitution or the internal rules. He said he heard Mr. Macintosh speak on the premise that Itter v Howe said “leave it to internal governance”. He said one of the important points he wanted to make is – “Where is the decision here?” Mr. Macintosh said the internal rules should be applied. In fact, he said, there has been a lot of action and advice, which have been contrary to the internal rules, but those related to the decisions of the bishop.

Mr Cowper also pointed out that the POR was only an advisory body and that its advice was almost entirely rejected by the body it reported to. The POR advised the Primates and they essentially said “thank you for your work, but we reject it”. They then proposed something stronger which was rejected by the diocese.

Mr. Macintosh relied heavily upon the Legal and Canonical Commission, the General Synod Task Force on Jurisdiction and the Principles on Canon Law writers, which were all only advisory. These advisory bodies were elevated to decisional bodies in the Defendant’s argument and the judge was being urged by the diocese to accept that certain processes are concluded. In fact, he said, there has been no decision by the General Synod on the question. He said the decisions and actions of the bishop and the refusal to accept a moratorium were relying on these advisory decisions, but there has been no resolution removing the Solemn Declaration from the constitution of the ACoC.

There is no resolution of the General Synod which departs from the doctrine, and the bishop acknowledged the teaching of the church has been consistent with the position taken by the parishes. We’re content to remain in the internal rules if that is appropriate (since the parishes view, it is the bishop and diocese have breached those internal rules).

He said this is not a church whose constitution, whose own definition of itself, says “forget the rest of the world, and only worry about what happens here.” In fact, they say, “We will not exercise our freedom in a way that ignores the rest of the world.” In applying the internal rules, it is important to remember that you don’t stop at the boundary of Canada. He highlighted that the diocese has been utterly silent on the division here and around the world.

After the afternoon break, Mr. Cowper began by pointing out what deep differences existed between counsel, not only about what the law is, but also its application. “We are far apart and in final argument, we have grown farther apart”, he said.

First, he said, Mr. Macintosh sees the legal structure radically different from his own view.

Referring to parts of the diocese’s submission, he said it was “a complete rejection of the law of Canada with respect to religious purpose trusts”. He said the courts start by implying a trust as to religious purposes. Mr. Macintosh submits that the court should not imply a trust until after application of the Neutral Principles of Law Approach and reference to relevant statutes, constitutions, canons, rules and regulations, and only if that fails to resolve the issue. Mr. Cowper said that is exactly contrary to all the cases before the courts. He said Mr. Macintosh was essentially adopting an American approach.

He said the internal rules (of the ACoC) are drenched in doctrinal principles. General Synod can deal with doctrine, but “in harmony with the Solemn Declaration”. He said it is a false neutrality, contrary to Canadian law, to ignore the doctrinal foundation.

Mr. Macintosh says its wrong to presume a religious trust, but that’s essentially the modern foundation of charitable law, he said. “In my respectful submission, he (Mr. Macintosh) asks you to adopt a radically different approach”.

He said that the Mr. Macintosh’s written submission describing the parishes’ legal theory and use of Cy Pres was “a straw man”, saying, “it erects a position we’ve never taken. I don’t know who said that.”

He said Mr. Macintosh submits that the law implying a trust relating to doctrine can only apply to a small church. In doing so, Mr. Macintosh was not only rejecting the law with respect to religious purpose trusts generally, but also the laws of charity.

On the American law, he said it was important to identify their terms of departure.

Where Mr. Macintosh said the analysis was identical, Mr. Cowper entirely disagreed.

What you have in the U.S. is 2-3 principles which flow from the constitution. They will not imply a religious purpose trust on a property given to a church because it violates the First amendment. In a hierarchical church, it’s the same, but this is exactly opposite to Canadian law. One exception is where someone gives on an express trust for religious purposes and the courts say “we have no choice if it’s an express trust.”

Mr. Macintosh’s argument was that the parishes signed on to something and when they signed on, they were to take the good and the bad, and then leave; they signed on to structure – a bishop, diocese and synod. This, Mr. Cowper said, was a very incomplete statement. The very first consideration when one signs on to a church is adherence to its faith – that is what they sign on to. The diocese says everything that is secondary is all you have to take into account. But, he said, it is no coincidence that the phrase in the documents is the “doctrine and discipline” of the Church, even according to the diocese’s witnesses and documents. “Indeed the vows of obedience explicitly refer to the 39 Articles of Religion – a thoroughly conservative and thoroughly religious document also reflected in the Solemn Declaration”, he said.

Mr. Cowper said the law of charitable corporations is not a defense but merely an appropriate route to equitable relief. Charitable corporations may hold on trust or beneficially for their stated purposes and objects. This case is tricky because the parish corporations do not have stated purposes and objects, nor are they supplied by statute, so they must be implied. He said that unless an express statutory provision or agreement excludes the court’s jurisdiction, the courts have the jurisdiction. He said charitable corporations can and often do hold property in trust, and it’s clear there has to be a trust.

The diocese relies on the 8-10 U.S. cases where parish corporations were found to hold on trust for the national church. The Episcopal Church’s Dennis canon stipulates a trust for the national church. In our case, there are many examples that show the Canadian church has pushed the trust “down” rather than “up”.

On general principles of trusts, Mr. Macintosh suggested Cy Pres only applies when there is a trust document. However, Mr Cowper said, there is no authority for that proposition. It is “deeply flawed” because trust law doesn’t require an instrument to have a trust.

In the Ullverston case, both anonymous and identifiable donors put money in a building fund that never happened. The identified donors got their money back and the other money was distributed using Cy Pres.

Mr. Cowper reminded the judge that the test was “impracticability” and not only “impossibility” which Mr. Macintosh stated several times during argument. He said the references to the strictures of the 19th century have to be tempered by the development of the impracticability doctrine – based on the spirit, intention, efficacy, etc. – partly developed in the Charities Act.

He pointed out some correction on points respecting the Solemn Declaration, saying there were differences as to method and evidence. He said that on any construction of the church’s constitution, it shows the Solemn Declaration’s character, first and foremost, by its place in the constitution. It’s a question of evidence.

He said Mr. Macintosh became enthusiastic about how the Solemn Declaration was used as a “litigation device” and the centrality of the Solemn Declaration in the parishes’ case is something the lawyers dreamed up. However, Mr. Cowper said, aside from the constitution, the Montreal Declaration of Essentials expressed it prominently in 1994. Former Archbishop of Canterbury, George Carey referred to it in the context of keeping the communion together. To suggest it came up in the context of litigation is wrong.

He said that the diocese takes the liberal view that the Solemn Declaration and the 39 Articles don’t bind them anymore and takes them out of their place in the church. Those statements “are really wishful thinking for constitutional changes which have not happened.” Furthermore, the Task Force on Jurisdiction report refers to the Solemn Declaration twice, and the Galilee Report starts with the Solemn Declaration. So, saying lawyers dreamed this up is not faithful to the record.

Although it was introduced by Mr. Cadman [Chancellor for the diocese], the Principles of Canon Law is a document with no standing at this time, since it is only a draft document submitted by a drafting committee; it is not an authoritative statement.

Mr Cowper acknowledged that General Synod has some authority in terms of internal processes. However, he pointed out that the POR report, the SMR, and the Legal and Canonical Commission Report did not have any authority. He said the diocese’s position is that General Synod decided it was not core doctrine and not communion breaking. However, on numerous occasions, he dropped the words from the resolution not core “in the sense of being creedal”. That statement is absolutely true as there is nothing in the creeds about this.

Mr. Cowper pointed out that no one before had ever made a distinction between doctrine and “core” doctrine. For him to say there is a determination that it is not core doctrine is not accurate.

The issue is, have the parishes made out a case of sincere and genuine doctrinal division?

Mr Cowper pointed out that the diocese has taken the position that there has been a decision that this is not a communion breaking issue. This is fundamentally flawed because the majority cannot decide that. For example, if the General Synod decided by majority vote to drop “thou shall not commit adultery”, it is clearly doctrinal. If they dropped it, they could not then say that all ACoC parishioners had signed on to this new doctrine.

On the re-marriage of divorced Anglicans, there are many questions that Anglicans have worried about and had many debates back and forth over. However, the most telling point, he said, was that previous questions have not resulted in large numbers of Anglicans saying that this is so flawed that they will no longer remain in communion with you.

When Mr. Justice Kelleher questioned him about Bishop Harvey having said women’s ordination was prohibited by scripture and inconsistent with the Solemn Declaration, Mr. Cowper pointed out it was a different conversation with scripture – it’s about church order vs conduct specifically proscribed by scripture.

“What is your role as a judge?” he asked. “You can’t inject your own view as to what is fundamental to Christianity. The proper approach is to recognize the debate and disagreement about the fundamentals that have produced impracticability. It is vastly preferable to recognize the division rather than engage the debate as to who is right or wrong.” He said, if there is division, you can’t serve the purpose. That is by definition, impracticability.

Although Mr. Macintosh did not speak to Canon 20, Mr. Cowper noted his argument on this point at the end of his written submission. Mr. Cowper pointed to the entire absence of any mention of Canon 20 in the record (the affidavit and oral evidence), saying there was no mention of Canon 20 in the Statement of Defence, nor in any of the correspondence between the parties, nor was there any mention of it in any of the meetings with the bishop, and there was nothing in the Handbook.

He said there is a precedent of a “stated case” under Canon 20, to the Ecclesiastical Supreme Court of the ACoC, where an individual sued the Church and General Synod agreed to state the case to stop the lawsuit. Suggesting that failing to “appeal” the bishop’s decision using Canon 20 was a failure to follow the internal processes, and that this would be a bar to the court’s exercise of its equitable jurisdiction, Mr. Cowper said it was important to note there was no reference to Canon 20 in the record. Mr. Justice Kelleher asked if Mr. Cowper was suggesting that lawyers made up the argument for this litigation, and this brought chuckles from some of the observers.

Mr. Cowper concluded his remarks by flagging an issue for the judge, and asking him to consider if the diocese’s written argument on Canon 15 even addressed the alleged basis on how that canon could legally direct an independent corporate body, in this case, the parish corporations.

Mr. Justice Kelleher expressed his thanks to counsel, saying he appreciated their mutual cooperation and that he never had to make a ruling on how this case was run. He acknowledged this was a difficult case and said the court has benefited greatly from the way they had worked things out in the best tradition in their work as barristers. And, with that, the trial ended.

_______________________________________________________________

Cheryl’s comments

I also want to say that our legal counsel were absolutely outstanding and that we could not have asked for a more dedicated, hard-working, and godly team of lawyers, including their staff and students. We are proud of the work they have done and how they represented us. I feel we could not have presented this case any better.

I also want to say that I don’t think we could have asked for a better judge in this case. Mr. Justice Kelleher was clearly engaged throughout, although he looked very tired at the end of what was a very difficult case. I believe he appreciated the trial ending a day early, as we all did. It was clear he was reading the material each night and he asked very good questions which showed he grasped the issues and appreciated the complexity. He still has much more reading to do before he will be in a position to write a judgment. We do not expect a judgment before Thanksgiving and have no other guesses as to when he will be able to render his decision. Please uphold him in prayer for the coming months and pray that justice will be done.

In His service,

Cheryl Chang

Supreme Court of British Columbia hearings have concluded in a case that will decide whether the Anglican diocese of New Westminister or parishes that have split away from the Anglican Church of Canada own disputed church buildings and resources. Judge Stephen Kelleher reserved his judgment and did not say when he might announce a decision.

Two lawsuits were filed against the diocese of New Westminster and its bishop, Michael Ingham, by clergy who cut ties with the Anglican Church of Canada and individuals who say they are the lawful trustees of church properties and resources for several congregations that also voted to leave the church. Other hearings have resulted in decisions about interim possession and sharing of Anglican church buildings in British Columbia as well as in Ontario, but this trial will be the first in Canada to rule on which side owns the buildings and resources.

One suit was filed by Rev. David Short, Rev. Trevor Walters, and Rev. Simon Chin who lead congregations at St. John’s (Shaughnessy) in Vancouver, St. Matthew’s in Abbotsford, B.C. and St. Matthias and St. Luke in Vancouver, respectively, and 14 other individuals. The other was filed by Rev. Stephen Leung of Good Shepherd Church in Vancouver and four other people.

The clergy in these cases left their ministries with the Anglican Church of Canada in 2008 over theological differences, including issues such as the blessing of same-sex unions, and they were asked to vacate their former parishes. Many of their parishioners voted to leave the church and join the more conservative Anglican Network in Canada (ANiC), which is now a part of the Anglican Church in North America (ACNA). ACNA is composed of clergy and congregations that have left the Anglican Church of Canada and The Episcopal Church. ACNA has been recognized by some conservative primates (national archbishops) and hopes to be recognized as a new, theologically-defined province in the worldwide Anglican Communion. In the meanwhile, these churches have aligned themselves with the Anglican province of the Southern Cone, which is based in South America. However, Archbishop of Canterbury Rowan Williams has stated that the only ecclesial body he recognizes in Canada is the Anglican Church of Canada.

ANiC chancellor Cheryl Chang has said that the judge will have to decide whether this is a case of “division or departure.” Geoff Cowper, a lawyer for the parishes that separated from the Anglican Church of Canada, argued that this is a division or schism in the church, not merely a matter of a few congregations leaving to follow their own path. His clients continue to be Anglican, he said. “Neither party has an unqualified legal right to the benefit of the various properties dedicated to Anglican ministry and worship,” he said in his concluding remarks. He also argued that “properties are held on religious purpose trusts.”

The lawyer for the diocese, George Macintosh, said the diocese doesn’t believe the Solemn Declaration of 1893, found in the Book of Common Prayer, creates a trust, as Mr. Cowper asserted. The structures of the diocese and the national church are sufficient to govern church affairs, Mr. Macintosh said. If the Solemn Declaration sets up a trust so defined, he said, “churches would be forced into rigorous conservatism…. Adapting their doctrines and practices to changing social realities would bring the risk of schism and dissolution. They would be forced to stick with old practices and old understandings.”

But even if one conceded the Solemn Declaration created a trust, Mr. Macintosh said, that trust would be violated only if the diocese or the Anglican Church of Canada ignored very “fundamental doctrines and tenets” of the church. “The non-sanctity of same-sex relationships is plainly and obviously not fundamental to the Anglican Church of Canada… Anglicanism is a ‘big tent,’ encompassing a wide diversity of beliefs. The issue of whether or not same-sex relationships can be ‘of God’ and so blessed is well within that tent,” Mr. Macintosh argued.

The case has also involved the bequest of Daphne Chun, a medical doctor in Hong Kong who died in 1992 and left her Hong Kong apartment and parking space to “the building fund of the Church of the Good Shepherd.” The parish sold the properties in 1998 for about $1.6 million, which has grown to over $2.2 million.

Stanley Martin, a lawyer for the plaintiff, argued that Dr. Chun wanted to leave the property to the people she knew at Good Shepherd, and the court should decide the congregation—most if not all of whose members have left the diocese and the Anglican Church of Canada—should get the money. Ludmila Herbst, another lawyer for the defense, replied that when the doctor wrote her will, long before the same-sex blessing issue came up, she meant to leave it to a parish in the Anglican Church of Canada.

In his final argument, Mr. Macintosh, pointed to seven American cases, including a decision from a California appeal court this week, which awarded property to a diocese rather than a local church. Mr. Cowper said American decisions should not be considered precedent-setting in Canada.

In closing, Mr. Cowper argued that the proper role for the judge would be to accept that Anglicans have split and, invoking the law of trusts, allow the congregations to take the properties. The judge should not get into all the issues that divide the parties, since that would ultimately involve theological issues that courts don’t wish to wade into. “It’s vastly preferable for you to acknowledge the division,” said Cowper.

Although Judge Kelleher did not say when he might release his decision, a ruling on complex cases such as this one can take months.

With files from Neale Adams

Mr. Martin advised Mr. Justice Kelleher that, even if he should find against the parishes on the trust issues in respect of the other property and assets of the parishes, it was still open to him to find a specific charitable purpose intended to benefit the congregation of the Church of the Good Shepherd.

Citing a B.C. Supreme Court decision Rowland v Vancouver College Ltd., Mr. Martin said that to determine whether a bequest gives rise to a specific charitable purpose, “the courts will look to the intention of the testator (Dr. Chun), the subject matter of the trust, and its object or purpose.” The intention of the testator can be determined from the construction of the will and from the surrounding circumstances, before and during the making of the will.

Mr. Martin gave more material to Mr. Justice Kelleher and then made 2 submissions:

1. This was a charitable trust for a specific purpose which was “necessarily for the congregation that Dr. Chun was part of – for the building needs of the congregation rather than the ACoC”, or alternatively,

2. If the money is controlled by the diocese, then a Cy Pres occasion arises as there is no reasonable expectation that the funds will be used by the diocese for the intended purpose.

On the second point, he explained that there were three Chinese congregations that have left the diocese of New Westminster. One left to affiliate with the Anglican Coalition in Canada (Emmanuel, Richmond) and the other two joined ANiC (Good Shepherd and St. Matthias & St. Luke). Good Shepherd has always been a parish for outreach to the Chinese community, and in fact, planted St. Luke in 1993 and Emmanuel in 1996. The diocese has no substantial Chinese congregation and it would be unlikely they would set out to build a new church for a Chinese congregation. Therefore, they would not be able to fulfill Dr. Chun’s specific charitable purpose.

Mr. Martin said the law takes a broad view of what the Testator intended when they made the specific bequest. A charitable trust never fails for uncertainty, he said. It is a matter of construction of the general purpose as distinct from specific purpose.

Dr. Chun was a very successful professor and medical doctor at Hong Kong University and a lifelong Anglican. She attended St. Paul’s Anglican Church in Hong Kong. She retired in 1972 and moved to Vancouver in 1984, when she began attending Good Shepherd. Both St. Paul’s H.K. and Good Shepherd were conservative in theology and worship. She suffered ill health and had limited mobility so was regularly visited by Good Shepherd’s interim priest, Rev Robert Yeung. She told Rev Yeung of her intention to leave her property to St. Paul’s and asked his opinion. After discussing the needs of Good Shepherd, and specifically their building needs, Dr. Chun changed her will and advised Rev Yeung of her intention to leave the property to Good Shepherd since they needed the money more than St. Paul’s did. It is clear that she was made aware of a specific need and her response was for the purpose of meeting that need.

After Rev Stephen Leung became rector, he visited her until her death in 1992 and conducted her funeral.

Her will was changed in January 1992 and the property was left “to the building fund of the CHURCH OF THE GOOD SHEPHERD of 808 East 19th Avenue, Vancouver, B.C. V5V 1K5.” That wording, said Mr. Martin, indicates the bequest to the building fund should be read as creating a specific purpose trust. Other evidence from past vestry meetings showed the congregation was aware that this money was restricted in its purpose for a new building for Good Shepherd and could not be used to merely maintain the current building or for other purposes.

In this context, her desire was to meet the need of the congregation she knew, rather than the ACoC generally. The bequest was specific to the need – the growing congregation had outgrown the existing building and she wanted to assist them. The congregation voted unanimously to join ANIC so there is no likelihood there will be a congregation there if the diocese is given the church property and assets. Her charitable purpose would be defeated if those funds were not available to help this congregation obtain a new building.

In the diocese’s affidavits, there is a reference to a Chinese service at St. Chad’s, but they say nothing about the size of St. Chad’s. Rev Stephen Leung, in his affidavit, said that the St. Chad’s priest told him that 20 to 30 people were attending St. Chad’s in 2003, and to the best of his knowledge, that number has not changed. Therefore, there is no need for the diocese to build a new Chinese church and that is another reason for a Cy Pres order in this case, said Mr. Martin.

Geoff Cowper, QC then stood to give his final remarks, which were so inspiring to the parishioners present that I am attaching them as an appendix to this report.

George Macintosh, Q.C. then began to present final arguments for the diocese. He gave a book of exhibits from the trial, a 300 page “Statement of Facts and Written Argument”, a loose copy of an index to the written argument, and 2 volumes of law to the judge. He said he had highlighted a number of items in his “Statement of Facts” but that he wouldn’t read it although he might rarely refer to the facts in it.

He submitted that the issues are:

1. The governance structures of the ACoC ought to be and are determinative of the outcome regarding the 4 churches, such that the properties remain in the ACoC.

2. The parishes on the evidence have not made out the trust which they allege, and if they elect to leave the ACoC, they leave the church properties.

3. In the alternative, if the court finds the parishes did make out a trust, and they come into their Cy Pres argument, Cy Pres is unavailable at common law. There is no decision the parishes have offered where a Cy Pres analysis has even begun without a written declaration or trust deed. “Their Cy Pres claim begins on a sandy foundation”, he said. They are asking the court to imply a trust which has been formulated for the first time in the lawsuit, for the purposes of litigation.

“Turning to the facts, on their analysis, one thing they need to show is impossibility or impracticability as required by Cy Pres”, he said. “However, the [parishes] claim arises directly from their refusal to accept the Episcopal Oversight as it has been offered by Bishop Ingham, and as it has been very strongly endorsed by the House of Bishops, and as it has been very strongly approved by the current Archbishop of Canterbury’s Panel of Reference (POR), which ruled against the Anglican Network and in favour of Bishop Ingham and the diocese of New Westminster, on how Episcopal Oversight should be given to the [parishes] in respect of same-sex blessings”.

He read several sections of the POR Report and said the parishes claim “stems from their refusal to accept the Episcopal Oversight, and their further refusal to accept the conscience clause from Bishop Ingham”. In contrast, he pointed to a statement (which Mr. Macintosh referred to several times as a “Manifesto”) which Bishop Harvey and others signed on to in 1975, setting out their opposition to the ordination of women. That statement referred to the Solemn Declaration and said “the only way (they) could stay in the church was because of the conscience clause” which protected dissenters. Bishop Harvey testified that he has long since changed his mind on the ordination of women.

Mr. Macintosh said the parishes claim that this is an insurmountable divide and “we can’t stay” has to be tested and there are only 4 parishes out of the 78 in the diocese which have been so “intransigent”. The parishes would “convert their intransigence” for an unprecedented use of Cy Pres, he said. He compared the numbers of ANiC (29 parishes with an average Sunday attendance of 3500 people) with the ACoC (1800 parishes and approximately 625,000 members), saying “I have distilled from the evidence that other right thinking conservative Anglicans have taken a very different approach with respect to this”. He named Archbishop Terry

Buckle as a strong conservative who at one time was on the same side of the dispute but has since “reconciled” with the bishop. He said Archbishop Buckle wrote to the POR thanking them and offering to cooperate with their recommendations. He also signed statements from the House of Bishops and the Metropolitans deploring the actions of Archbishop Venables and ANiC.

He referred to Rev Sarah Tweedale, who in an affidavit said she opposed the blessing of same-sex unions, but felt the conscience clause was sufficient to accommodate conservative clergy. She is currently on leave from St. Clement’s where she was rector from September 1999-May 2008. St. Clement’s, the only parish in the diocese to seek Shared Episcopal Ministry (SEM) received pastoral care from Bishop Hockin for a period of one year.

He said Rev John Oakes, incumbent of Holy Trinity in Vancouver also opposes same-sex unions, but has remained in the diocese. He referred to a letter Rev Oakes wrote claiming he changed his position and regretted recent statements of Essentials.

He referred to other statements of witnesses (by affidavit) and claimed there is diversity within congregations. The parishes’ “allegations of impossibility need to be tested locally and across Canada”, he said.

He said that when the parishes ground their trust in “Anglicanism”, it needs to be recalled they are not part of the Anglican Communion and are not in any province of the worldwide Anglican Communion. “They seek purely and simply to take the churches out of the worldwide Anglican Communion and they may never be part of the worldwide Anglican Communion again. I would venture to say the struggle is uphill.”

He said that what matters, is not the views of a number of Anglicans from Africa, “but whether one is in the Communion as determined by the four instruments of communion – which they are not”. He continued “What is clear is that they are leaving the Communion because of their beliefs. The majority they have marshaled on their side amounts to nothing.”

He said the Anglican Communion has survived a 50/50 theological divide on women’s ordination.

He said that based upon the facts on the ground, the “plaintiffs” (parishes) comprise 2 groups:

1. The former priests of the ACoC, who were only enabled and had the right to preside in the properties on the basis of their oaths to the bishop; and

2. All the members of the 4 congregations as they stood in 2008, and voted to leave the Anglican Church. He said it is relevant to keep in mind the difference between a congregation and parish. A congregation, he said, is a group of church goers at a point in time and it changes many times. In a parish, there can be a different number of churches and congregations. He said this claim rests on 4 groups of church goers

He said they voted to leave in 2008, but in reality, they left 6 yrs earlier in 2002 when they walked out after losing a vote in synod, boycotted synod for the remaining 6 years, stopped paying assessments to the church, and the priests effectively dropped out of the parish church activities in the diocese. They also started to affiliate with groups that eventually became ANiC and they started to pay money to those groups. He said they didn’t leave until after Gen Synod 2007 because that’s when they saw that the General Synod had a different viewpoint from theirs. He told Mr. Justice Kelleher “the evidence is overwhelming they quit the church”.

He noted that at least 3 of the church properties were established and church buildings “completed long before all except 1 or 2 of the plaintiffs joined the churches.” St. John’s opened the present church 59 yrs ago, St. Matthias and St. Luke opened 49 yrs ago, St Matthew’s opened 32 yrs ago and Good Shepherd opened 24 yrs ago, he claimed. He referred to buildings being consecrated by bishops to be set aside for use of the ACoC.

He said he didn’t think it was necessary for Mr. Justice Kelleher to determine the status of ANiC’s priests and bishops, except that, in his view, Bishop Harvey and Bishop Ferris and the priests are “very far from the worldwide Anglican Communion”. He quoted from the 2007 statement of the Council of General Synod which denied the legitimacy of the actions of the Southern Cone. He said a letter from the Archbishop of Canterbury to the bishop of Brandon in February 2008, said he could not “support or sanction” cross border interventions and he only recognized “one ecclesial body in Canada” 

He said there was no canon of any body that permitted Bishop Venables to consecrate Bishop Harvey outside the Southern Cone and there is no jurisdiction for this to occur. “It is without precedent in the history of the Anglican world. I would submit the ACoC was correct when it called it invalid”, he said. He said Bishop Harvey was not invited to the Lambeth Conference in 2008 when every other bishop from Canada was invited and received communion from the Archbishop of Canterbury. He noted that Archbishop Venables did not receive communion at Lambeth 2008 and said the evidence did not clarify whether the Archbishop of Canterbury refused to give communion to him, or whether it was his decision to refuse it.

He said the parishes are seeking the formation of a new province (ACNA), where there are already two provinces in the same place (TEC and ACoC). They are seeking a province based on theology which is also unprecedented.

“It is the Anglican Consultative Council (ACC) to which you apply to become a province”, he said. “The ACC hasn’t yet received an application. All of us can only speculate on this”, so he speculated that the theological nature of the province “is completely contrary to what Anglicanism has been about from the outset. It has been a big tent which recognizes a diversity of views. . .They want to call themselves Anglican and the reality is that they keep sailing away from what Anglicanism is”.

He said the Solemn Declaration is a constitutional document of the ACoC adopted by the first Gen Synod in 1893 and there is an irony in the parishes seeking to anchor their trust claim in the Solemn Declaration “since the ACoC, whose document it is, does not believe the Solemn Declaration is what the parishes say it is.” The ACoC does not believe it freezes doctrine or that it blocks the development of same-sex blessings. He cited as “overwhelming evidence”, the Legal and Canonical Commission report from George Cadman and Dr. Stephen Toope, and the General Synod Task Force on Jurisdiction Report in 2002, which clearly determined issues like this could be addressed by the most senior body that would “take hold of it”, and this is wholly inconsistent with the Solemn Declaration blocking it.

He referred to Bishop Victoria Matthews and the St. Michael’s Report that concluded that blessing of same-sex unions is not core doctrine and was not communion breaking. His point, he said, was that no one said the Solemn Declaration stops this, no one said this is inconsistent with the Solemn Declaration.

He said at the votes in 2001 and 2002, all were of the view it was perfectly lawful and there was no talk of the Solemn Declaration blocking this. The parishes “say we get to leave and take our churches because same-sex blessings violates the Solemn Declaration, despite the fact no court has ruled on this and no one in the church believes this.” He said the House of Bishops wrestled with the topic for several years and there was “not a hint from them that this was off-side from the Solemn Declaration.”

He said their have been massive controversies over the years, “most significantly” over slavery, which demonstrated that theological development was allowed “long before 1893.”

He claimed the parishes “formulated the trust within the four walls of the lawsuit”, saying there was nothing in documents prior to 2001, when Dr. J.I. Packer wrote about it. He reminded Mr. Justice Kelleher that Rev Dixon hadn’t heard of it, saying he was not being “glib”, but that the Solemn Declaration just doesn’t have the place the parishes say it does.

He said the word “unprecedented” has been used here a lot but that if the views of the parishes required them to leave, this would be the first time anyone would be able “to take the church with them.” He said the implication of the parishes’ claim is that “sincerely held differences” are the basis upon which this can occur.

Mr. Macintosh then summarized the law in support of his submissions.

He said the governance structure of the ACoC allows for theological issues to be adjudicated within the church – in the Supreme Court of Appeal of the ACoC. In his view, the civil law in Canada and the U.S. is very clear – the civil courts will leave religious/theological decisions to the church if there are such mechanisms.

The property is part of “the parish” and the parish only exists as part of the diocese. He said the parishes’ argument that theology should trump structure was “fallacious” and that it is “the structure everyone signed on to – it is the structure that allowed them to be in the big tent.”

He said the parishes spoke and voted against same-sex blessings in 1998 and 2001 and “succeeded” when the bishop withheld his consent, even “though the majority was against them”. He said, “As long as the process was playing out in accord with their viewpoint, they were there. As soon as it went against them, they leave . . . and seek to take church buildings with them.”

He argued that the issue could’ve been so easily litigated within the church. As the parishes have portrayed this as the most important theological issue in the history of the Anglican Communion, “Canon 20 is tailor made for this situation”. He said any decision of the bishop may be appealed under Canon 20.

He made two decisions that fall within Canon 20: (1) when he accepted the Synod decision in 2002 when the diocese asked him to; and (2) When he implemented the decision and issued the rite in 2003.

He said the parishes didn’t utilize the structure to determine the theological issue and cited the Dorland case, where all four judges found in support of the larger church and against the dissenters who complained the larger church was adopting steps too conformist and liberal. This was upheld by the Supreme Court of Canada in 1887.

He said Bishop Michael Ingham’s efforts on same-sex blessings to ensure fairness and to exercise caring and caution was “exemplary”. He obtained considered advice on whether or not to proceed and the care he took was “really exceptional”. Even in the debates beforehand, the bishop “proceeded with care and with inclusivity”. He waited until 2003 to implement the decision.

Mr. Justice Kelleher asked “When you say he was cautious, etc. – is there legal significance to that?” Mr. Macintosh said if it is legally relevant, it is only so at the end of the Cy Pres argument, which he claimed, we shouldn’t get to. He thought it would then be relevant that there is no way that this was “impossible” and that the parishes didn’t have to accept same-sex blessings and they could have had Episcopal Oversight as approved by the POR and the bishop. The bishop “did everything to ensure that people could stay, like Sarah Tweedale”, he said. “The patience and care he exhibited was remarkable.” He claimed all the church doors are open within the ACoC, all the congregations are welcome, and “obviously the hardest core dissenters would not return, but the churches are open”. He said for the congregations that remain conservative, the doors are open – as for those who have stayed.

Turning to the law, he commended four of “the 100 or so cases you have” to Mr. Justice Kelleher. Those were Dorland, Itter and Howe, the Episcopal Church cases, and Varsani. He submitted that the other important law is statutory.

He said his most important argument, not addressed by the parishes, is that the structure of the church determines the outcome of what is to occur with the property as opposed to Trust law. The governance structure is determinative of the outcome today.

He said if the governance structure is not the answer, then the parishes have not made out a trust, and there can be no Cy Pres analysis if the parishes have not established a trust. There is no foundation.

On the governance structure, he said a central principle relating to church property disputes is that the courts avoid church doctrinal disputes whenever possible, and especially when internal mechanisms are in place. He cited Itter and Howe and the Dorland case in support of this proposition.

The courts give deference to the church on doctrinal issues and when the right of property is dependant upon doctrine, and doctrine is decided by the highest authority in the church, that should determine the matter. Here, he said, the St. Michael’s Report and General Synod 2007 both said it does not raise an issue of doctrine and this should be respected by the civil courts.

He referred to a number of American cases, saying the courts have also applied this principle of deference to churches. In response to Mr. Cowper’s view on the American cases (yesterday), Mr. Macintosh said the analysis here is identical. Whether the U.S. did so because of the 1st amendment doesn’t matter. What matters is that the analysis is the same (citing Itter and Howe is an example of that). He said the U.S. courts use exactly the same tools with respect to property disputes and defer to the internal church mechanisms.

The other U.S. approach in church property disputes is called the “neutral principles approach” (NPA).

The NPA is saying that the law of contract still exists and the courts will look at that. All the law that exists will be brought to bear as well. The reason that is so important he said, is that there aredecisions from the highest appellate court in the US.

Mr. Macintosh cited the recent Episcopal Church cases (Supreme Court of California) where the court said: “In this case, a local church has disaffiliated itself (from the larger church) . . . claim ownership (of the church properties) . . . (there is a) danger the courts will be entangled in church disputes. . .state courts must not decide doctrinal disputes.” He said the court ruled they should use NPA, including review of statutes. His submission was that “the reasoning is sound and well set out”. Even though the St. James parish held title to the property, the court held that St. James had agreed to be bound by the rules of the national church and that the church was held in trust for the diocese.

He said the court first looks at the internal rules to see if they’ve determined the issue, then all you have to do is apply the rules and this is consistent with the NPA.

He submitted that the Corporate Governance approach or the Church Structure approach has 4 advantages;

1. It respects the arrangements by which parties have agreed to govern themselves.

2. With respect to incorporated religious organizations, it us consistent with the law regarding charitable corporations.

3. It tends to preserve religious institutions by quashing bad decisions rather than dispersing properties.

4. It allows a church to regulate its own doctrines.

He quoted Professor Ogilvie and said that if you review all the cases where a trust is advanced, your chances of success are much better where the church is organized more congregationally.

He said the 2nd rationale (above) is consistent with law of charitable organizations. Under the law of England and the law of Canada, he submitted, “a gift of property to a corporate entity is absolute and not subject to any trust, unless there is an express trust involved in the transfer”. He said the church is merely a voluntary association, no different from any unincorporated association, and subject to bylaws and statutes.

He referred to some cases from the Supreme Court of Canada on issues of freedom of religion and cited Hofer v Hofer as support for the proposition that it is not a violation of freedom of religion to deny the claim to property of the plaintiffs (in that case, the plaintiffs were a group that had ceded from the Hutterian colony).

He again referred to the American cases which considered the Dennis Canon, saying the court relied more broadly on the law of voluntary associations and that all it did was codify what was already in place in a unified church.

He said the American NPA has been expressly adopted by the Court of Appeal in Ontario in Balkou v Gouleff (1989), and by the Supreme Court of Canada (SCC), although he needed to get the specific references to the case in the SCC. It was pointed out that a footnote in the written submission said the reference to the adoption by the SCC might be in error and might have meant the U.S. Supreme Court.

Mr. Macintosh submitted that property must always remain in the diocese; parishes are regulated by diocesan Canons; and ministry performed in the church buildings is also regulated by the Canons of the diocese and the ACoC.

He ended his submissions with respect to rights over church property by saying the rules of the church should apply and that’s the end of the matter.

He then moved on to the “Alternative” argument in response to the parishes claiming there is a trust. Those who seek trusts when they leave the church, need to start with the Free Church of Scotland case, he said. Here, the parishes are asking the court to imply a trust for historic orthodox Anglican faith and practice.

He said that Bishop Harvey characterized the Solemn Declaration as a trust document, but it doesn’t have anything to do with property. “An implied religious trust should be approached by a court with trepidation”, he said. The correct approach is deference to the church structures.

He disputed the claim that the basis of trust was something that happened in 1893 that allows the parishes to keep their properties. He said the parishes came to the court “with a trust that has been conceived and articulated for litigation” and you “cannot allow them to have a preferred right to the property”. His submission was that everything in this dispute could’ve been resolved internally.

He said Free Church and subsequent cases have limiting principles and there cannot be a trust as the parishes allege. The SMR found these issues were not core doctrine and General Synod accepted that.

Tomorrow, Mr. Macintosh expects to be about 1-1.5 hours, and then Ms. Herbst will address the facts of the 4 churches and Chun bequest. He is confident they will be finished in the morning. Mr. Cowper will have an opportunity to reply and said he is content to start at 2pm. He advised Mr. Justice Kelleher that he will endeavor to finish by the end of the day.

Please continue to uphold these proceedings in your prayers, particularly tomorrow. It was a difficult day for members of the parishes who attended.

Cheryl Chang

Exhibit “A” to Day 10 Report

ANiC Parishes v the Diocese of New Westminster

Final Remarks – Geoff Cowper, Q.C. – June 10, 2009

The Plaintiffs submit that they have proved:

· That they remain Anglicans, seeking to continue Anglican worship within any fair meaning of that term.

· That the properties are held on religious purpose trusts.

· That the principles the law of trusts applies to this dispute are those of honouring the intent of those who contributed to the church properties and assets and advancing the general charitable purpose of the free exercise of religious ministry and worship.

· That in fact, a division exists between two groups of Anglicans within the formerly united communion in New Westminster and that neither party has an unqualified legal right to the benefit of the various properties dedicated to Anglican ministry and worship.

· That in justice and equity the Court should grant a remedy which recognises both the reality of division and the benefit of the charitable purpose of religious ministry and worship and make an order:

o which permits or continues appropriate trustees to be in office to ensure the Plaintiffs’ congregations may continue their ministry in the parish properties,

o that resolves the deadlock in the administration of the trusts

o if necessary, amends the purposes of the trusts to permit the Plaintiffs’ congregations to be in communion with the worldwide Anglican Communion through a Bishop other than the Defendant Bishop and to thereby be allowed to minister and worship as Anglicans in a spiritual community which adheres to the traditional doctrines and teaching of the Anglican church and practices the liturgies which express those beliefs.

The Defendants’ answer in the pleadings and their Opening is that the trust is for the religious purposes defined by the majority of the ACoC from time to time and none other, and that the Plaintiffs can leave the ACoC but cannot take the properties with them.

In answer, the Plaintiffs say that they remain as Anglican as the Defendants, and that the buildings are going nowhere: indeed they belong to no person, and the Plaintiffs are the appropriate trustees to serve the religious purpose for which the properties were exclusively dedicated.

One premise of the Defendants’ case is that the division is unnecessary and that the Plaintiffs’ congregations should simply stay in the buildings and accept the authority of the Bishop. It is respectfully submitted that the stated welcome to the Plaintiffs’ to continue under Bishop Ingham is impractical, ungenerous and denies the depth and sincerity of the underlying differences between the parties.

In some respects this is a challenging case. The division proven in the evidence is unprecedented. The application of trust principles to church divisions happens only rarely and is not the regular work of judges or litigators.

Now that the law’s processes of proving the facts and ascertaining the law have been engaged however, we submit the way is clear: the principles of equity are applicable and well-established, the facts are clear and it remains only to apply them impartially to this dispute. To grant the counterclaim would be to accord the majority with possession because they form the majority here in this part of the Anglican world and would leave unfulfilled the Court’s centuries old role and duty to protect faithful minorities.

All persons with religious convictions know that a time may come when those principles will carry a penalty. If the Plaintiffs’ decisions carry such a penalty under the law so be it. But is this such a case? Does the conscientious choice to remain Anglican, adhering to what they consider the official teaching of the church and its liturgies, and in communion with those in the world who agree with that adherence, carry the penalty called for by the Defendants?

Equity’s vision goes deeper than the legal surface of structures and things like buildings and titles. It penetrates to the heart of what is right and just to require of a trustee who holds an office that requires service to a purpose and not a person. Equity ought not to permit any penalty here and service of purpose is what the Plaintiffs earnestly seek to honour.

The facts demonstrate the Plaintiffs’ and their congregations need is great. The law demonstrates that the remedies sought are just and equitable and represent the living out of the best features of our law.

1. The essential characteristics of Anglicanism throughout the world are enshrined in the Solemn Declaration of 1893, and also reflected in the fundamental principles of the diocese of New Westminster.
2. Anglican structures, whether international, national or diocesan, are intended to serve mission and ministry. They are adaptable as circumstances change.
3. It is clear in this case that there is a polarization of views as to what it means to be Anglican. Is it based upon a received faith, common faith and standard of teaching (as the parishes believe), or is it a structural relationship with constant evolution of doctrine (as the diocese believes)?
4. Behind the presenting issue, there are deeper “stress fractures” and theological divisions within Canadian Anglicanism.
5. Being Anglican is enormously important to the members of the congregations. The clergy and parishioners are deeply committed and the steps they’ve taken are to preserve their distinctive characteristics as Anglicans they have always valued.

He discussed “Anglican DNA”, (a term used in the recent Galilee Report of the Canadian Primate’s Theological Commission), referencing the evidence set out in the affidavits of Dr. John Stackhouse and Dr. J.I. Packer. Principally, Anglicanism is:

• catholic Christianity, embracing the fullness of the historic and apostolic faith.
• canonical Christianity, with its faith and practice based wholly on the Bible.
• creedal Christianity – including maintaining them and using them liturgically.
• comprehensive Christianity – not anything goes, but what is primary and essential?

He covered Bishop Ferris’ testimony as to the “hallmarks” of Anglicanism, including our understanding of scripture, doctrines, sacraments, creeds, the historic ministry of bishops, priests and deacons, the role of liturgy and common prayer, the sacraments, a received tradition, collegiality and, of course, the Solemn Declaration.

He said the Solemn Declaration is a comprehensive statement of Anglican identity. While the Declaration of Principles of the General Synod can be amended, the Solemn Declaration cannot be altered or amended. Definitions of doctrine must be “in harmony with the Solemn Declaration”. Simply as a matter of reading words, the Solemn Declaration was intended to be “an enduring statement of the character of the Canadian Church.” In 2001, the [then] Archbishop of Canterbury, at an Essentials conference, praised the Solemn Declaration, saying “. . . your bishops, clergy and laity in your first General Synod articulated so clearly the heritage which you have received . . . [it] serves as the bedrock of your national Anglican Church. . .”

The Supreme Court of Appeal of the ACoC in 1989, acknowledged the continuing role of the Solemn Declaration in the “stated case” regarding the Book of Alternative services, saying, “. . . [the BAS] is consistent with the Solemn Declaration in that its authorization and use does not impair “the Doctrine, Sacraments and Discipline of Christ”.”

Mr. Martin pointed out that the only dispute with respect to the Solemn Declaration are the words “full communion with the Church of England throughout the world”, saying it is “unreasonable to read those words as anything less than an intention to maintain communion with all Anglicans throughout the world.” This is not simply a commitment to maintain communion only with the Archbishop of Canterbury, as it would’ve been very easy to draft such a phrase, but “throughout the world” was intended to be meaningful. It requires an interdependent and mutual relationship with other Anglican Churches.

Mr. Martin said there are two fundamental themes in respect of Anglican structures:

1. They are not fixed in form but are adaptable to serve the needs of ministry and the faith; and
2. The real structures are organized, not in terms of juridical obligations, but around moral authority, collegiality, communion and interdependence.

He discussed the role of bishops, the episcopacy, bishops as defenders of the faith, and unity in the faith.

He talked about the important distinction between “Communion” – belonging to a club – and maintaining “communion”. He said you can still be in the Communion but cease to be “in communion”.

Archbishop Jensen, in his affidavit, said that the old patterns of the Anglican Communion have been broken and cannot be recovered. It’s possible a different structure will emerge, but the future shape of the Anglican Communion is unclear.

Mr. Justice Kelleher asked why the evidence stressed that the parishes were recognized by the majority of Anglicans and why did that matter? Mr. Martin pointed out that it showed the parishes stand in the mainstream of Anglicanism and are not merely a small sect which has “hived off”.

The Archbishop of Canterbury, at the South to South Encounter in 2005, said he recognized the members of the Networks in Canada and the U.S. as full members of the Anglican Communion but it was not within his power or authority to recognize an ecclesial structure as a province. That process is currently ongoing with the formation of the Anglican Church in North America.

He reviewed more of the evidence regarding the declining numbers in the ACoC, and the underlying stress fractures due to issues other than same-sex blessings, primarily the authority of scripture and issues raised by Bishop Ingham’s book, Mansions of the Spirit. Even Bishop Ingham said the opposing views of scripture were irreconcilable.

He discussed the evidence around Anglican Identity and pointed out this is a case of division. The parishes have not ceased to be Anglicans, but have sought to remain Anglican by accepting episcopal oversight. He pointed to the affidavits and statements that confirmed the members of ANiC, their clergy and bishops are “in full communion” with Anglicans in Canada and around the world.

Error! Reference source not found. then covered the “Legal Context for the Argument”, quoting from trust law textbooks and extensive case law and pointing out its application to the current dispute. One of the cases he discussed and quoted from related to a dispute in the Roman Catholic Church, and the role the courts have to play, even where there are internal dispute mechanisms.

Other cases, dating as far back as 1887, covered the clear jurisdiction of the court with respect to religious and charitable purpose trusts and the different kind of orders a court can make to ensure the original intent or charitable purpose would not be defeated in the event of some impracticability arising.

One principle that stood out in the cases was the inability of a majority to change their theological principles and then force out a minority that was upholding the original principles. Courts have held that where a majority seeks to change the original purposes, they lose the right to the trust over property.

There was some discussion of American cases but Mr. Cowper pointed out the constitutional separation of Church and State in the U.S., prevents the U.S. courts from doing what the British and Canadian courts have done and can do – that is, exercise a Cy Pres jurisdiction over religious purpose trusts. However, he pointed out the relevance of the recent Virginia case involving similar facts to this case, and a specific statute dealing with a case of church division. In that case, the court granted the property to the congregations – but that is an exception in the U.S. What is relevant, however, is that the court found this was a case of church “division” which then invoked the relief of the statute for the parishes. Mr. Cowper said that a similar finding of division is warranted in this case.

Based upon the case law, Mr. Cowper described “a toolbox” that Mr. Justice Kelleher has at his disposal with respect to problems arising in a case of trust.
• He has an inherent jurisdiction to substitute or replace Trustees. Such a remedy doesn’t require a change to the trust or to the purpose of the Trust.
• He can appoint either those Trustees appointed by the bishop or the parish, or appoint his own.
• He can change the administration of the trust, having regard to the purpose.
• He can invoke the doctrine of Cy Pres to change the purpose of the trust if he finds the original purpose cannot be fulfilled because it has become impossible or impracticable.

It is important for the court to rescue the general overall purpose of the Trust when the carrying out becomes impracticable. Mr. Cowper reviewed a number of cases which described various manifestations of impracticability where the courts have said this cannot defeat the original general intention.

In this case, Mr. Cowper said, “To exclude the plaintiffs from the benefit and use of their churches, would exclude from the property the very class of people who were intended to benefit from that gift”.

It was submitted that Mr. Justice Kelleher will have to determine what the terms of the Trust are. The purpose of a charitable trust is central and the Court will supply a purpose where the charitable purpose has failed.

In response to the diocese’s submission that the purpose of the trust is for the exclusive ministry of the ACoC, Mr. Cowper submitted that you can’t define a purpose trust by reference to who is to administer the purpose. That confuses the charitable purpose with the Trustee.

Second, he said, the ACoC, in its self-definition, does not define itself as independent and autonomous. Therefore, he submitted, if Mr. Justice Kelleher finds that ministry of the ACoC is the purpose, then that leads to impracticability.

Third, intrinsic in religious purpose cases, the court will assess the original purpose for the church. In the Free Church of Scotland case, the court found the majority tried to take the church somewhere else and determined that could not be done. When you give property to a church, it is for the purposes of the church as originally intended.

Finally, he said, it is abundantly clear from the evidence in this case, that the fundamental identity of all those involved is “Anglican”, not “ACoC”. There are global facets to the experience of the witnesses. It is only the diocese’s witnesses, in affidavits, that have added to their definition that it is part of the ACoC.

In some of the cases cited by Mr. Cowper, the decisions were dependant upon the doctrine of the body involved. If the definition of the doctrine in the founding documents showed it was changeable, that was one thing. Where it is intended there should be a common belief and practice, a doctrine with limits, then the courts will not allow the majority to change it. “A purpose trust is not for any beneficiary, but exists to serve its original purposes, being the advancement of religion”, he submitted. It is a question of definition on the facts. The trust is a trust for Anglican ministry, not Anglican worship and ministry defined exclusively by the ACoC. That is inconsistent with the facts and with the notion of a purpose trust.

The cases come from a time when the backdrop of charitable donations were specifically for religious purposes. Mr. Cowper quoted Chief Justice Wilmot in Attorney General v Lady Downing from 1769, saying “The donation was considered as proceeding from a general principle of piety of the testator”. Mr. Justice Kelleher noted the next sentence in the written submission stated, in fact, “Charity was an expiation of sin, to be rewarded in another state”. He was very engaged throughout the day, clearly following the submission and asking many questions.

Mr. Cowper addressed the Varsani case and said, while it is not binding, it is persuasive as it addresses what to do among members of the same faith where there was a genuine and sincere difference in their beliefs and it is the only case which has dealt with the same issue in this case. While the case involved a Charities Act statute, it also examined the wider common law jurisdiction of Cy Pres which Mr. Cowper discussed at length. He went on to say that if a remedy is available that doesn’t require the court to make a decision on the rightness or wrongness of the doctrinal question, that approach should be preferred. In Varsani, the court said in striking a balance, you need to consider what each group needs to continue exercising its faith, not what each has contributed. The property belongs to no one but the charity.

Mr. Cowper then explored the impracticability in this case, citing some of the following factors:
• The current division was unanticipated.
• Although the parishes are dissenters locally, they adhere to the official teaching of the Anglican Church. The minority in the diocese of New Westminster was not the innovator – they have not tried to change the definition of the faith.
• The Bishop’s episcopal authority is a factor, including that his actions were unilateral and without any consensus outside of the diocese.
• The Bishop’s disregard of the Solemn Declaration.
• The division continues after seven years and is not transitory or minor.

It was also noted that there is a direct admission from the Bishop in this case that this issue is different from women’s ordination and the re-marriage of divorced persons.
The evidence shows there is a clear difference.

Mr. Cowper pointed to the written submission on the impracticability of the ACoC’s Shared Episcopal Ministry (SEM) scheme and pointed out a number of problems, with the “nub” being jurisdiction.

Mr. Justice Kelleher asked “If jurisdiction had been ceded, would there have been a breach of communion?” Mr. Cowper replied that acceptance of (then) Bishop Buckle’s offer would have given the parishes a bishop who was clearly “in communion” with Anglicans around the world, and it would have allowed the Anglican Communion time to work out a solution over the longer term. He said the issue for the parishes was “how do we stay in while the Anglican Communion is working this out? We are disconnected today and we need a bishop who is connected.” He said it was not a permanent solution but it would’ve preserved communion in the structure pending the global realignment or restructuring of the Communion. He noted that we still don’t know how it’s going to work out in the ACoC or Anglican Communion.

Mr. Cowper said that once you get to a Cy Pres argument, it is a question of making an appropriate order that will allow both sides to get on with their ministry, without the ongoing conflict they have experienced. He said this requires an order with a clear break so as not to subject the parties to ongoing hostility.
Finally, he discussed the fact the parishes had independent corporations with their own bylaws and constitutions. While the Canons talk about alternative parish structures, that does not contain any legal force over the parish corporations. If the Bishop seeks relief in the event of a deadlock, he should have sought relief in civil law from the court rather than using self-help measures.
The parishes’ submissions will conclude in the morning with Mr. Martin discussing the Chun Bequest, after which the diocese will present their argument.

Cheryl Chang