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New Westminster Appeal - September 15, 2010
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The courtroom gallery was less than half full today as George Macintosh and Tim Dickson presented their arguments. They will finish some time tomorrow morning; then Stanley Martin will speak to the issue of the Chun bequest. Finally, Geoff Cowper will close and it will be all over by 4:00 pm.
Mr. Macintosh began by endorsing the trial judge’s reasons for preferring the church governance model over a trust. He referred to a couple of American cases which support his approach. He told the judges that there was no implied trust, explaining you didn’t need to engage a trust analysis to resolve this case. However, in the alternative, if there is a trust, it should be as the trial judge found and that is for the ACC and the diocese.
Tim Dickson spoke to the Cy Pres issue, saying that any such analysis is in the alternative if the case is not decided on the church governance issue. He made several arguments on this point:
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A Cy Pres order taking the properties out of the ACC and diocese was not as close as possible to the original intent so should not be made;
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The court cannot make any Cy Pres scheme that would supersede or override a government statute. S. 6 of the Act to Incorporate the Diocese of New Westminster, which says church property cannot be sold or otherwise disposed of without the bishop’s consent, precludes such an order.
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Members of ANiC and ACNA are not part of the Anglican Communion because ANiC is not a constituent member and ACNA is not an established body.
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The Appellants have ignored the contractual rules of the ACC which are highly structured and binding on the members of the voluntary association.
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There is nothing impossible or impracticable about the trust.
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The Appellants are required to allege and prove a breach of the trust, which they have not done. |
Mr. Macintosh added that courts should defer to the religious body’s internal processes to address matters of its own doctrine. He said the appellants could’ve pursued or challenged the doctrinal innovations internally using Canon 20 of the General Synod Canons, but instead they simply left the church and shouldn’t be allowed to take the properties with them.
In the afternoon, Mr. Dickson spent a great deal of time reading from the Panel of Reference Report noting that the same arguments before the court were rejected by the POR. He also read a number of sections from the Principles of Canon Law, saying it was a highly persuasive document.
Finally, Mr. Macintosh tried to persuade the judges that the trial judge was correct to award the Chun bequest to the parish, but not in making a Cy Pres order to allow the Church of Good Shepherd congregation to have the funds. He didn’t see any reason the funds could not sit in a bank account of the diocese “for years” (until the diocese had a need to build a church for the Chinese community).
Having lived with this through the last 8 years, it was a difficult day listening to opposing counsel’s views of the importance of various documents and factors supporting their arguments. There is comfort in knowing the real view of the majority of global Anglicans.
Please pray for our legal counsel on this final day of the Appeal – that they will have clarity of thought, know exactly which responses will be most effective and persuasive, and that they will present their final arguments extremely well.
Your prayers and notes of support are greatly appreciated.
In His Service,
Cheryl Chang
Chancellor
Anglican Network in Canada
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