The purpose of this note is to rebut factual inaccuracies relating to the Anglican Church of Canada in General Synod paper GS 1764A, a briefing paper for a Private Members’ Motion dealing with the relationship between the Church of England and the Anglican Church in North America (ACNA). A separate note refers to The Episcopal Church.
The paper GS 1764A makes allegations concerning two main topics: clergy and property. Quotations from the paper are in italics.
In relation to “the use of Canons in the depositions of bishops and clergy” the paper claims that 6 bishops and 69 clergy in Canada are involved in ACNA.
“bishops and priests who have not left [ACoC] are deposed without due canonical process because of what they might do, or that they should be formally advised that they have abandoned their ministry when they have done nothing of the kind”
“… most of the 69 priests and 6 bishops who relinquished their licences for ministry in the Anglican Church of Canada have been accused and convicted of “presumption of the abandonment of the ordained ministry” despite their clear statements that they were not abandoning the ministry to which they were ordained. There are cases of inhibition without due canonical process and a number of local church trustees have been summarily “dismissed” by bishops – including the Bishop of New Westminster, in ways which the courts have subsequently found to have been without any legal or canonical authority.”
Only three former bishops of the Anglican Church of Canada have associated themselves with ACNA:
None of these have been deposed. All were already retired, and all three voluntarily relinquished their ministry pursuant to Canon XIX of the Anglican Church of Canada. This is the equivalent of Canon C1 (2) of the Church of England which makes provision for a cleric “voluntarily [to] relinquish the exercise of his orders and use himself as a layman.”
However, three former presbyters of the Anglican Church of Canada have recently been consecrated as bishops by ACNA: Stephen Leung, Charles Masters and Trevor Walters. This may account for the claim of six. (Also, Silas Ng was consecrated as a bishop by the Church of Rwanda.)
As of March 2009, 52 of the clergy (other than the six bishops) in ACNA were former clergy of the Anglican Church of Canada. The claim of 69 includes the newly ordained and possibly some other transfers.
The total of Anglican Church of Canada clergy as of June 2009 was 3861.
Not a single Canadian priest has been deposed for joining ACNA. The term is almost entirely unheard of in Canada. It is one of the penalties provided for in the Canon on Discipline. However, none of those who have left to join Rwanda or Southern Cone or ACNA have been canonically disciplined.
The phrase “relinquish license for ministry” is canonically meaningless in the Anglican Church of Canada. The correct phrase is “relinquish ministry” pursuant to Canon XIX, on “The Relinquishment or Abandonment of the Ministry” which states that relinquishment:
“removes from the [cleric] the right to exercise that office, including spiritual authority as a minister of Word and Sacraments conferred in ordination.” (emphasis added)
Relinquishment renders the cleric unlicensable in any Jurisdiction. Relinquishment of ministry is reversible, but only in the jurisdiction in which ministry was relinquished.
Abandonment of ministry has the same effects as voluntary relinquishment, but is established when the cleric has “abandoned the Anglican Church of Canada either by public renunciation of its doctrine or discipline, or by formal admission into another religious body” among other grounds. Notice of abandonment is sent to the cleric who has 60 days to respond to the notice. A response is followed by due enquiry by the bishop, or in the case of a bishop the Metropolitan. A finding of abandonment of ministry may be appealed to the Metropolitan, or in the case of a bishop to the Provincial House of Bishops. Again, there is a process for reinstatement of ministry in the same jurisdiction where the cleric was previously licensed.
If the clergy who have relinquished their ministry regret that decision, there is a canonical remedy, which would involve reinstatement along with a renewal of their oaths of obedience. If the clergy who have been found to have abandoned their ministry oppose that finding, there is also an avenue of redress. It is unclear why they would refuse to avail themselves of that avenue of appeal and then complain about their status, or lack thereof, in the Anglican Church of Canada and hence in the Anglican Communion.
It is quite incorrect for the paper to imply that there are not proper avenues of appeal of canonical decisions in the Anglican Church of Canada. There are in fact three levels of appeal open to any cleric who feels mistreated in the Anglican Church of Canada, and once these avenues have been exhausted the decisions are still subject to judicial review in civil court.
Elsewhere it has been suggested that relinquishment of ministry is simply a mechanism to transfer jurisdiction. This is not the case. Transferral of jurisdiction, for a cleric in good standing, is accomplished by canonical process under Canon XVII, on “The Licensing of Clergy.” However, an ex-cleric who has relinquished or been found to have abandoned the ministry is not a cleric in good standing and cannot thus transfer jurisdiction.
Unlike the established Church of England, the Anglican Church of Canada (like TEC) is a voluntary association, in which the members and officers agree to abide by the rules that it shall from time to time adopt. Members cannot refuse to abide by the rules and then demand special treatment as victims of “oppression”. They cannot refuse to avail themselves of the canonical processes available to them and then complain that they have not been treated fairly. The ACNA complainants are reminiscent of the man convicted for murdering his parents who appealed to the court for clemency on the ground that he was an orphan.
The paper “question[s] whether the use of the Canons … has in every regard been proper or in accordance with natural justice.” Again, there are mechanisms available to the Canadian dissidents to test whether they have been treated properly, both in Canadian Canon Law and in Canadian courts.
The paper also makes criticism of the Bishop of Eastern Newfoundland and Labrador:
In December 2007, following his third anniversary as a bishop, the Bishop of Eastern Newfoundland and Labrador (whose predecessor had been a conservative bishop), issued an ad clerum advising that all clergy in the diocese would require new licences, prior to which they would have to renew their ordination vows before him on a specified date in January 2008. For good measure he also dismissed the cathedral chapter and stripped all canons of their titles and duties, subsequently appointing a new chapter.
It is true that Cyrus Pitman, the current bishop of Eastern Newfoundland and Labrador called his clergy to receive new licenses and take their oaths anew. This unusual action was entirely within his powers as a bishop. It was intended to remove all uncertainty as to the obligations of the clergy under the canons. Uncertainty had been expressed to him by some clergy about their oaths, exacerbated no doubt by the continued residence in the see city of St Johns of the retired bishop, Donald Harvey, who had become “Moderator” of the Anglican Network in Canada, which is itself now styled as a diocese within ACNA. (The oath, of course, is to obey the bishop of the diocese and his successors).
The paper claims that:
Although church property in Canada is owned in various forms, it has been historically and generally understood that these properties are held in trust for a specific religious purpose. However, the courts in Canada today appear to be favouring an American approach in resolving property disputes, despite the lack of a “Dennis Canon” or similar legislation.
In both jurisdictions, at the heart of litigation instigated by the Episcopal Church (usually in partnership with the Diocese) or the Diocese in the case of the Anglican Church of Canada, is one side claiming its institutional property “rights”. On the other side are the “rights” of a local church which believes it has held firm to historic Anglican belief and practice (effectively the Anglicanism of the Declaration of Assent). These cases generally involve property which the congregation has built and paid for with little or no help from the local dioceses. In addition, the congregations have improved and maintained the properties over the years while financially supporting the local dioceses through assessments or apportionment. They have faced eviction from their church buildings and forfeiture of their trust funds.
In Canada, congregations have no legal standing apart from the trustees who represent them. The trustees are required to be the named party in any litigation. The Canadian courts normally award costs against the losing party and trustees (ie parish officers) are therefore very exposed personally when there is litigation, potentially to the extent of several hundred thousand dollars and putting their homes at risk.
And at the end of the paper, it also says (emphasis added):
In asking Synod to express a desire to be in communion with ACNA, there is therefore no suggestion that we should not remain in communion with TEC or ACoC, nor am I suggesting that everyone in ACNA is a paragon of perfection. Rather, it is a recognition that there is a considerable and growing body of faithful Anglicans representing a wide range of church traditions, many of whom have been hurt, who are now members of ACNA. They would be grateful to be in communion with the Church of England as the Windsor/Covenant process works through. In some cases it might also help parishes to retain the property they have built and paid for.
The idea that “properties are held in trust for a specific religious purpose” is correct, but only insofar as it is understood that the purpose in question is to serve the mission of the parish, which is a unit of a diocese and is under the control of that diocese. The Anglican Church of Canada is not a congregationalist church. Like the Church of England, it is an episcopal church, in which the central unit is the diocese. Parishes do not exist apart from the diocese, and clergy do not function without the authority and license of the diocesan bishop.
The alleged conflict between the “institutional property rights” of the diocese and the “rights of a local church which believes it has held firm to historic Anglican belief and practice” is in fact a false dichotomy. The diocese has a fiduciary responsibility to ensure that the parochial properties are held and used for the mission of the church consistent with the polity of the church, which includes the constitution, canons and policies. Thus, the concern of the diocese is not simply the exercise of some institutional property rights, but the fulfillment of its duty to protect the properties for their intended use. On the parochial side, there is no right of alienation of the properties, which is what the dissident congregations are attempting to do. Their beliefs are undoubtedly sincerely held, but the sincerity and even the correctness of their beliefs do not imply a right of alienation of property.
In addition, the Declaration of Principles of the General Synod of the Anglican Church of Canada (which presumably is what is meant by “Declaration of Assent” in the paper) makes it very clear that the General Synod alone has jurisdiction over the definition of the doctrines of the church (Paragraph 6i). Thus, it is not a matter for the private or personal judgment of any individual priest or parish to determine what is or is not consistent with the doctrine of the church. For example, if the dispute is about the blessing of same-sex unions, the General Synod has determined that this is not in conflict with the core doctrine of the church. To be clear, no one is required to conduct the blessing of same sex unions, but neither can one state authoritatively that it is against the doctrine of the church and as such impermissible for others, for such a statement would be contrary to the clear statement of the General Synod.
Where property in Canada is held by parochial corporations, it is not held either by the parishioners or by the trustees in their own right, but is held by a corporate entity. In the recent judgment in New Westminster, the court held that the trustees are bound to discharge their duties pursuant to the canons of the Anglican Church of Canada, which means that these properties are recognized in law to be subject to the control of the local diocese.
It is a fallacy to suggest that the properties belong to the congregants. It is also a fallacy to suggest that the congregants have in any way paid for the buildings or their maintenance. They have contributed to a parochial corporation (and have received tax benefits for their contributions) and the parochial corporation has paid for building maintenance. The difference may seem subtle, but it is an important distinction.
It is also incorrect to suggest that anyone has been “evicted” or “excluded” from the Anglican Church of Canada. Some have decided voluntarily to leave the Anglican Church of Canada. The consequence of leaving is, well, to leave. But voluntary departure is not the same as exclusion or eviction, and cannot be depicted as such.
The paper raises concerns about the use of civil litigation to address the disputes in the Anglican Church of Canada. It incorrectly states that this litigation has been instigated by the Diocese (in the case of the Anglican Church of Canada). In fact, in the only Canadian lawsuit to come to judgment to date, Bentley v. Anglican Synod of the Diocese of New Westminster, the lawsuit was filed by the dissidents against the Diocese, and not the other way around. Those filing suit can hardly complain about being taken to court, even if their lawsuit is unsuccessful.
There have been two instances - in the Dioceses of Niagara and British Columbia - where the bishops have gone to court to seek shared occupancy of churches that have voted to leave. In neither of those cases, has the diocese sought an eviction.
The paper suggests incorrectly that Canadian civil courts have recently adopted an “American” approach to property litigation “despite a lack of any legislation similar to the First Amendment in the American Constitution, which mandates a separation of church and state.” This claim is misleading. The Supreme Court of Canada has consistently held that the civil courts should refrain from being the arbiters of religious dogma. This principle was most recently stated in Syndicat Northcrest v. Amselem,  2 S.C.R. 551, 2004 SCC 47 at paragraph 50.
The Revd Canon Alan T. Perry LL M, Diocese of Montreal
1 February 2010