Anyone hoping that the British Columbia Court of Appeal, in Bentley v Anglican Synod of the Diocese of New Westminster Footnote ¹ would resolve the doctrinal and related property disputes in the Anglican Church of Canada (ACC) and even in the world-wide Anglican Communion over same-sex blessings must come away from the decision of Newbury JA for the unanimous court greatly disappointed:Footnote ² the court left the dispute exactly where it began – in the ACC. Conversely, anyone hoping that the court would do precisely that will be greatly relieved by this exercise of judicial self-restraint in the face of the many challenging theological and legal issues presented by the case. Stripped to its essentials, the court found that the property to which four former parishes in the diocese of New Westminster laid claim by way of a cy-près application was held by the diocese pursuant to a statutory trust for the uses of the diocese and the ACC. The court further characterised the dispute over same-sex blessings as an internal dispute among Anglicans on the basis of which a cy-près order cannot be made in favour of parishes which no longer regard the Bishop of New Westminster as their bishop. This simple, legal outcome followed an 11 day trial in the British Columbia Supreme Court,Footnote ³ a four day appeal hearing, and two lengthy judgments, each of just under 100 pages, which ranged widely over the history of the dispute within the ACC and the larger Anglican Communion, and the Anglo-Canadian common law relating to the resolution of church property disputes since the 1813 decision of Lord Eldon in Craigdallie v Aikman,Footnote ⁴ almost two centuries before.

The court resisted the temptation to render judgment on all the significant matters in the case: the correct doctrine on same-sex blessings (or relationships generally) within the ACC; the appropriate standards for ascertaining a correct doctrinal position; the correct legal principles to apply to church property disputes, that is, either the implied trust approach of General Assembly of the Free Church of Scotland v Overtoun Footnote ⁵ or the so-called ‘neutral principles’ approach of the American First Amendment jurisprudence,Footnote ⁶ which has been mirrored implicitly in Canadian case law since the late 19th century;Footnote ⁷ who or what is the ‘Anglican Church’ or the ‘true’ ACC, including whether that is to be assessed by resort to international, national, diocesan or parochial standards or organisations; who has actually ‘left’ the ‘true’ ACC, the dioceses or the four parishes; and whether legal property rights should follow ‘true’ doctrine in the first place.

Conversely, in light of the actual outcome in the appeal, the British Columbia Court of Appeal could be perceived (especially by non-lawyers) to have decided in favour of restricting ‘core doctrine’ to the creeds alone and in favour of same-sex blessings and, therefore, relationships. The court could, further, be perceived to have enshrined neutral principles for resolving church property disputes and to have established the diocese within the ACC as the ‘true’ Anglican church, with the upshot that it is the parishes and not the diocese which have departed from Anglican doctrinal standards.

By setting out what the court did not decide, it may be queried whether the decision is significant beyond again showing that civil courts remain reluctant to become embroiled in ecclesiastical disputes, thereby signalling to ecclesiastical combatants the importance of dispute resolution outwith the courts in order to avoid the possibility that someday a court will snap and order a result regrettable both for the actual litigants and for ecclesiastical organisations generally. Nevertheless, how the British Columbia Court of Appeal extricated itself from the difficult position into which the Bentley protagonists propelled it, is salutary in relation to future ecclesiastical disputes in the courts.

The events over the past three decades relating to the same-sex imbroglio within the world-wide Anglican Communion are familiar to readers of this journal but it may be appropriate to review briefly the Canadian part of that story to which both parties agreed at trial.Footnote ⁸

In 1969,Footnote ⁹ the Parliament of Canada decriminalised homosexual conduct, and in 1975, the National House of Bishops established a task force to consider how the ACC should respond. In 1979, a set of guidelines was approved which rejected same-sex blessings but affirmed the status of celibate homosexuals within the church and priesthood. In 1992, the diocesan Synod of New Westminster asked the bishop to appoint a task force on human sexuality and the following year the task force recommended a two year study throughout the diocese. Also, in 1992, the General Synod of the ACC commissioned another study and it reported in 1995 condemning bigotry against homosexuals but making no further recommendations. In 1997, the National House of Bishops issued new pastoral care guidelines but resisted approval of same-sex blessings. The following year, the New Westminster diocesan synod voted by a 52.8% majority to ask the bishop to authorise same-sex blessings but the bishop declined until he could engage in further consultation at the Lambeth Conference in 1998. By resolution 1:10, the Lambeth Conference, by a large majority, affirmed the incompatibility with scripture of homosexual practice and declined to approve same-sex blessings. In 1999, the diocesan bishop initiated several commissions to study and advise further concerning the matter.Footnote ¹⁰ Subsequently, the diocesan synod, in 2001, again approved same-sex blessings by a larger, 56.5%, majority, but again the bishop declined his assent. In 2002, the General Synod received a task force report on jurisdiction within the ACC which concluded that while formal jurisdiction over doctrine and discipline resides with the General Synod, some matters might be decided at the diocesan level, but the mechanism for determining the appropriate level was left to the ‘mind of the church’. In June 2002, the diocesan synod again voted in favour of same-sex blessings by an even larger majority of 62.5% and eight parishes left the synod in protest, including the four parishes in the Bentley case. The bishop assented to this motion, provoking a critical response from within both the ACC and the wider Anglican Communion, including the Archbishop of Canterbury, who called the move ‘schismatic’.

After the synod, the eight parishes formed an informal network, the Anglican Church in New Westminster (ACiNW), in order to coordinate a response to the bishop's decision, and subsequently their vestries voted to withhold assessed payments to the diocese. In late 2002 and early 2003, mediated talks to facilitate a reconciliation of both sides failed, and in early 2003, the parishes started to look for alternative episcopal oversight. The first same-sex blessing occurred in the diocese in May 2003 and a month later Gene Robinson was elected as Bishop of New Hampshire within the Episcopal Church in the United States. In 2004 parishes in British Columbia started to leave the ACC in favour of episcopal oversight from Southeast Asia and Rwanda. Also in 2004, the General Synod resolved to affirm the integrity and sanctity of same-sex relationships but deferred until 2007 consideration of blessings, pending a determination by the Primate's Theological Commission as to whether such blessings were a matter of doctrine. Again in 2004, The Windsor Report was critical of the diocese of New Westminster for acting on its own and called for a moratorium until the matter was finally resolved within the Anglican Communion. The diocese did not implement the moratorium but the 2005 diocesan synod restricted same-sex blessings to those parishes which had already received the bishop's permission to implement the rite. Also in 2005, the Primate's Theological CommissionFootnote ¹¹ concluded that same-sex blessings were not a matter of core doctrine in the sense of being creedal. The 2007 General Synod accepted this conclusion but defeated a resolution affirming the authority of a diocesan synod and bishop to authorise same-sex blessings alone.

Later that year, the Anglican Network in Canada (ANiC) was incorporated and various bishops, clergy and parishes across Canada began to withdraw from the ACC in order to re-align with it. ANiC developed close ties with Anglican groups beyond Canada, such as the Global South, and in 2008 aligned with the Anglican Church in North America (ACNA), which had broken away from the Episcopal Church in the United States. In 2008, vestries held in the four parishes in the case voted overwhelmingly to realign with ANiC by votes ranging from 97.7% to 100%. The rectors of the four parishes relinquished their licences from the bishop and received licences from the new Canadian bishop of ANiC within the province of the Southern Cone. The bishop of New Westminster commenced diocesan processes to secure the property held by the four parishes, but the wardens and trustees of the properties responded with the view that they held the properties in trust for the purposes of Anglican ministry consistent with historic, orthodox Anglican doctrine and practice, and therefore would not relinquish them to the diocese. The bishop then invoked diocesan canon 15 to remove the officers on the ground that the parishes were in crisis in relation to their management; the diocesan council ratified this action. The four parishes then commenced legal proceedings to secure a cy-près declaration that the properties be used for orthodox Anglican ministry in contrast to the ministry of the diocese.

The essential argument of the parishes was that they held the property on implied trusts confirmed by legislation pursuant to which both they and the diocese were incorporated, for the purpose of historic, orthodox Anglican ministry; they sought a cy-près order to fulfil the intention of the trusts which could no longer be fulfilled within the diocese under the bishop. Conversely, the diocese argued that neutral principles should be applied to interpretation of the legislation which expressly provided that the properties were vested in the diocese for the purposes of the diocese and the ACC. The parishes did not deny that the diocese owned the property under the legislation but argued that they and not the diocese or bishop were using the properties for their original purpose, hence the request for a cy-près order.Footnote ¹²

The trial judge dismissed the action and came to four conclusions on the facts:

1. i. The legislation shows that even if legal title to the parish properties were held by the parishes, the properties remained intrinsically a part of the diocese because the legislation requires approval by the diocesan executive committee and the bishop for their use; use for the purposes of ANiC was clearly not possible;

2. ii. The meaning of ‘historic’ and ‘orthodox’ Anglican doctrine and practice was too uncertain, subjective and could freeze doctrine at a specific point in time; the constating constitutional documents of the ACC provided no definition of these terms, rather contemplated that parishes remain within an Anglican jurisdiction in full communion with the world-wide Communion, and that both ministry and liturgy be acceptable to that Communion. The diocese complied with all three requirements;

3. iii. Even if the implied trust doctrine was to be applied, the same-sex issue has been defined by the ACC as not a matter of core doctrine, so that there is no breach of trust;

4. iv. Again, even if the implied trust doctrine was to be applied, the parish properties are held on trust for the purposes of Anglican ministry as defined by the ACC. The trial judge did find, however, that the bishop had acted improperly in attempting to remove the parish officers since canon 15 only permitted removal where a parish is being restructured.

On appeal, much of the argument focused around two documents, The Anglican Synod of the Diocese of New Westminster Incorporation ActFootnote ¹³ and the so-called Solemn Declaration of 1893, of the ACC, setting out fundamental principles and constitutional structure.Footnote ¹⁴ The Act incorporated the diocese of New Westminster and provided for the incorporation of parishes within the diocese as they were formed. Section 2 provides for the transfer of property, real and personal, to the corporation on trust for the uses of the diocese and the ACC, and section 7(4) provides that parish corporations may hold property and mortgage, sell or ‘otherwise dispose’ of property only with the consent of the diocesan executive committee and the bishop. The Solemn Declaration sets out several relevant principles: full communion of the ACC with the world-wide Communion; subscription to the ancient creeds and to the Old and New Testaments as containing all things necessary for salvation; the BCP and Thirty-Nine Articles; and government by bishops. By section 6 (i), the General Synod is given authority over ‘the definition of the doctrine of the church in harmony with the solemn Declaration’, an obviously ambiguous statement as to the authority of any doctrinal statement at prima facie variance with scripture.

In the British Columbia Court of Appeal, both parties relied on their earlier arguments, with the parishes construing the Solemn Declaration in their own favour and emphasising the fact that their position on the orthodoxy of same-sex blessings was supported by a large majority of dioceses within the world-wide Communion. The diocese urged the court to restrict its analysis to section 7(4) of the Act and section 6(i) of the Solemn Declaration and to the compliance of the diocese with those provisions in relation to its same-sex blessing policy. The diocese further distinguished the Free Church case on the ground that the dispute was not between two opposing factions as to which is the ‘true’ church, but two groups of Anglicans within a wider Communion.

The court characterised counsels' submissions as ‘like two ships passing in the night’,Footnote ¹⁵ but asserted its jurisdiction to resolve the dispute notwithstanding its doctrinal nature.Footnote ¹⁶ The court then made a series of findings. First, it decided that the properties were held on trust and not beneficially, insofar as the assets must be used for the charitable objects of the trust.Footnote ¹⁷ Both the historical and statutory contexts in Canada for how churches hold property have favoured the trust and s 2 of the act follows that practice. Secondly, the properties are held on trust for ‘Anglican ministry’.Footnote ¹⁸ The court asserted its power to determine what that meant, as happened in the Free Church case, however, also thought that the Free Church case did not apply because the parishes have already left the ACC in contrast to the Free Church litigants, and because in this case, in contrast to the Free Church case, there is constitutional provision for doctrinal change within the ACC, that is, it is possible to acknowledge that a church is an evolving organism, again in contrast to the Free Church case.Footnote ¹⁹

Thirdly, the appellate court construed the Free Church case to have embedded within it an exception where the internal rules of a church allow for doctrinal change.Footnote ²⁰ Thus, the court distinguished both the Free Church case and Varsani v Jesani Footnote ²¹ on the ground that in neither case were there any internal rules for change within the institution. By contrast, there were in the ACC.

The parishes argued that both parties could be regarded as committed Anglicans and therefore the dispute was an internal one. But, fourthly, the court did not regard this as an argument in favour of a cy-près order because there were no legal precedents for making an order where the doctrinal dispute is internal. The court did not wish to determine whether one, both, or neither party had left the foundational principles of Anglicanism.Footnote ²² However, the court was doubtful that Anglicanism in Canada can be separated from the ACC, which, it recalled, remains a member of the larger Anglican Communion, accepts the creeds and beliefs of other Anglicans, and has an autonomous structure whereby doctrinal change can be made by the General Synod.Footnote ²³ Thus, the court concluded ‘after much anxious reflection’Footnote ²⁴ that a cy-près application of the parish properties to the uses of ANiC is not possible. It further underlined its decision by reference to an equitable reluctance to make an award that would likely create considerable uncertainty and turmoil because having four parishes within the diocese receiving episcopal oversight from another bishop and applying diocesan property for other than diocesan purposes would very likely result in future resort to the courts to resolve ongoing issues.Footnote ²⁵

In short, the parish properties are held on trust for Anglican ministry in accordance with Anglican doctrine in Canada as determined by the General Synod of the ACC. The parishes cannot remove themselves from the diocese and episcopal oversight and retain the right to use the property for Anglican ministry as they understand it.

While the outcome in Bentley is, at the end of the day, straightforward, a number of observations may be made in relation to the approach of the British Columbia Court of Appeal. First, the court readily accepted jurisdiction over the dispute notwithstanding that it was ultimately doctrinal in nature and highly controversial at that. For Canada, where courts have expressed reluctance to adjudicate whenever doctrine is involved,Footnote ²⁶ this frank admission that property disputes at bottom involve doctrine is a welcome clarification and caution for future courts. But, secondly, the court steered well clear of the doctrinal issue. As the court repeatedly noted, it was urged by the parties to adopt one of two different approaches, one requiring the court to identify and enforce an implied doctrinal trust as the basis for property use and one requiring the court to decide whether the church itself has properly resolved in law the basis for the use of the property which the court need only ratify. Each approach is supported by a significant body of legal precedent in the Anglo-Canadian common law tradition.Footnote ²⁷ The former approach is, prima facie, the more intrusive doctrinally since it involves a civil court deciding what is fundamental or core doctrine. The latter approach is less intrusive doctrinally since it requires a civil court to decide whether the church has followed its duly authorised procedures for determining doctrine: this involves interpretation of internal procedural rules without consideration of the correctness of the doctrinal outcome. The court essentially adopted the latter approach notwithstanding its express disavowal of American ‘neutral principles’.Footnote ²⁸

Thirdly, the court both accepted and rejected the Free Church case. It did not overrule it. Newbury JA found that the facts in Bentley differed from those in Free Church in that the parishes had already left the ACC rather than remained to dispute property rights. She ascribed no importance to the fact that the four parishes had realigned within the larger Anglican Communion. Bentley was also distinguished on the ground that, in the court's view, there were no rules within the Free Church to resolve doctrinal matters. This, of course, was not the case; this observation, like several others, suggests that Newbury JA thought presbyterian polity was congregational in nature rather than hierarchical and rule-bound, very much like episcopal polity.Footnote ²⁹ The court also dismissed the Free Church case on the ground that it did not acknowledge the possibility of doctrinal change.

While these observations could be characterised as relatively weak reasons for not explicitly applying Free Church, it is also the case that Newbury JA indirectly applies the Free Church principle once she has re-characterised it. The court found that the property was held on trust for Anglican ministry but instead of defining the terms of the trust in theological terms, secularises it by permitting the legal title holder, the diocese, to define the terms on which the property is held. If the trust in Free Church was defined by theological principle, the trust in Bentley is determined on ecclesiological principles, that is, the court has simply posited an ecclesiological test in place of a theological test but maintained the Free Church approach of looking to a trust. Thus, the court has assimilated the two allegedly conflicting approaches, so that it does not have to choose one over the other. Retention in the common law of the Free Church case may prove useful for future cases where there are no internal rules for determining doctrinal change or where they had not been properly followed, but this should not distract from what the court has actually done in Bentley, that is, by implicating an ecclesiological test into the Free Church approach, the court has effectively come very close to the neutral principles approach of American law, at least where there are internal rules to govern doctrinal change and these have been followed properly.

Effectively, the British Columbia Court of Appeal re-framed the case as one about ecclesiology not theology, with the result that it was not drawn into the same-sex blessing issue. Once the case is so re-framed, it becomes a simple matter, fourthly, to proceed to the interpretation of the internal rules about who has legal title to property and the purposes for which the property is held. This brings a court onto the familiar grounds of judicial review of lower tribunals (admittedly not a happy position for a church) and statutory interpretation, in this case, of the self-evident meaning of section 2 of the Act that the property is owned by the diocese for the purposes of the diocese and the ACC. Fifthly, by adopting this approach, a court also risks becoming re-entangled by different routes in the theological issue. The Act points to the Solemn Declaration as the internal rule book to determine who may decide what are the purposes for which the property is owned, that is, the General Synod pursuant to section 6(i). Section 5(i) also determines who may interpret the meaning of scripture for the ACC in the civil law, that is, the ACC and not the four parishes or the larger Anglican Communion. Thus, sixthly, the court is able to decide the case without resort to the Anglican Communion where there is majority support for the theological position of the four parishes. By restricting itself to what domestic courts normally do – interpret and apply domestic legislation – the Court of Appeal avoids a decision explicitly based on any theological position.

Finally, although the court does not say so, this is the approach taken by two Ontario lower courts in recent years faced with the same dilemma of choosing between implied doctrinal trust and neutral principles, and for Canada, at any rate, confirms a current judicial preference for the latter over the former approach. In United Church of Canada v Anderson,Footnote ³⁰ involving three pastoral changes which left the UCC after the General Council extended marriage to same-sex couples in 1998, the trial judge declined to even consider an implied trust argument but rather held that the UCC retained the properties on the basis of examination of legislation and title deeds to the properties. Again, in Montreal and Canadian Diocese Footnote ³¹ the court looked to church by-laws pursuant to incorporating legislation to decide that a parish resolution to change to another branch of the Russian Orthodox Church in Canada was non-compliant and therefore invalid; the court expressly declined to look at doctrinal issues associated with the dispute. In Bentley, an appellate court has confirmed a Canadian neutral principles approach to church property disputes.

The net result of Bentley for both the ACC and ANiC is that property disputes associated with doctrinal disputes should be resolved without the involvement of the civil courts. The court upheld the status quo in respect to property as would be expected once courts resolve to look only at the constitutional documents of the church. That those who manage the church will almost inevitably win is no surprise since it may be expected that they will follow scrupulously their internal rules to achieve their desired doctrinal outcome. It is also no surprise that a court is unlikely to award property to a small faction who dissent from a doctrinal change. The lesson of the Free Church case and the legislative fallout is well-known. Had the Court of Appeal awarded the property use to the four parishes, almost every other diocese of the ACC would have been subject to the same possibility of diocesan property being used for ANiC purposes. There is ongoing litigation in a number of dioceses involving ANiC parishes and others may have been encouraged to separate and make property claims had the outcome favoured the four parishes.Footnote ³² Although there are several different property holding models found in the ACC across Canada, all share the key characteristic that the property is to be held for the use of the diocese and of the ACC.

For the world-wide Anglican Communion, the Bentley decision indicates that for Canada, at any rate, the civil courts are unlikely to become involved in doctrinal disputes, and that like the American courts,Footnote ³³ will look to constitutional and legal property documentation to ascertain ownership and use issues. In fact, they will not get involved any more than absolutely necessary. While the Bentley outcome could not have been greeted with any joy by those who believe same-sex relationships and blessings are deeply un-scriptural, they should find some comfort in the exercise of judicial restraint by the court so as to allow Anglicans to resolve the issue for themselves without a judicial pronouncement expressly in favour of one side or the other on a doctrinal matter.Footnote ³⁴