Having the Christian Voice Heard in Litigation

The Christian community has an on-going internal debate about the appropriateness of using the courts to protect or advance rights.  People often quote I Corinthians 6 to me as authority for the proposition that Christians ought to stay out of the civil courts entirely.

I do not want to debate that here as the scripture pertains mostly to Christians taking legal action against one another.  There are some scriptures indicating that relying on civil rights is appropriate for the Christian community.  In Acts 22, we are told the story of Paul, having been bound and about to be scourged, pleading his Roman citizenship, scaring the authorities and allowing him some freedom to argue directly with the chief priests and council.  Paul knew his rights and relied on them for the purpose of promoting the kingdom of God.

The reason for getting involved in court cases is often for the same reason Paul invoked his legal rights in ancient Roman times; namely to permit God’s people to communicate His message in freedom and without fear of hindrance or reprisals.  In the first Charter case on freedom of religion at the Supreme Court of Canada, it was decided that freedom of religion is a broad right that includes the right to entertain religious beliefs, the right to manifest belief by worship and practice and also the right to declare religious belief openly with teaching and dissemination. 

In other words, the ability of Christians to learn, preach, teach and evangelize is protected by the Canadian constitution.  Without participating in constitutional litigation, such rights could be eroded.

Sometimes religious people become involved in cases involving important questions of religious freedom because of circumstances beyond their control.  Recall the case of Christopher Kempling who was disciplined by the B.C. College of Teachers for his religiously motivated writings on homosexuality.  Dr. Kempling’s defence largely involved issues of free expression and freedom of religion. 

Other times, religious groups or organizations choose to challenge injustice resting on their legal rights, as did Paul.  Such was the choice of Trinity Western University when it challenged the decision of the same College of Teachers for refusing to certify its teacher education program because of TWU’s Biblically motivated code of conduct.

There is a third way for religious people and groups to engage in litigation involving important questions of religious freedom.  By intervening in cases in which they are not directly involved, groups can bring their voice to other parties’ disputes.

Interventions allow groups to put their perspective before the courts with respect to cases in which they are not directly involved.  This is important, as sometimes the parties directly involved in litigation may not appreciate some of the religious freedom or other implications of their case.  Or, their direct pragmatic interests in the case may not address some of the wider societal implications of a decision.

With any court decision, there is the potential for broad societal impact because we have a common law judicial system.  This means that court decisions create precedents, which precedents must often be followed by judges deciding similar cases in the future.  As such, if an important perspective or argument is not addressed in a court case, the full impact of the decision may not be brought to the court’s attention. 

The purpose of an intervention is not to be adversarial or to create new issues in an existing piece of litigation.  The reason to intervene is simple: to assist the court by providing a broader perspective on the issues already before the court.  The court has to grant permission or “leave” for a group to intervene in a case, but if the group can show that it does have a unique and useful perspective, the courts will generally welcome the involvement.

Many Christian groups already take advantage of this important role in litigation.  Groups such as the Evangelical Fellowship of Canada, Catholic Civil Rights League and Christian Legal Fellowship (and many others) have become frequent interveners at all levels of court, including the Supreme Court of Canada.  Such groups have developed an expertise in issues of religious freedom and expression.  Their voices and points of view are respected and often welcomed by the courts. 

While the courts may not always accept the legal arguments made by interveners, they are often referenced in decisions and frequently accepted by the courts in decisions that broadly protect freedom of religion in Canada. 

Canada’s legal system has developed a useful and productive way for Christians to participate in some of the important questions of the day and have their voices heard in the courts of the land.  The groups that have taken up the challenge of being involved should be congratulated, and other groups should seriously consider becoming involved whenever there is litigation that can impact on their rights in the future.

This article was written by Kevin L. Boonstra, a lawyer who practices in charity and not-for-profit law with the law firm of Kuhn LLP. It is only intended as a guide and cannot cover every situation. It is important to get legal advice for specific situations. If you have questions or comments about this case or other construction law matters, please contact us at 604-864-8877.