Jim Sinclair
Acting General Secretary
The United Church of Canada
3250 Bloor Street West
Etobicoke, Ontario
M8X 2Y4

Jim

This letter is an olive branch.....

Appended is a draft appeal that will not be presented, shared more as a summary of thought.

There has to be a different way in this church than a litany of appeals for the next decade. What that way is escapes me right now other than starting with an olive branch.

Don Anderson

Jim Sinclair
Acting General Secretary
The United Church of Canada
3250 Bloor Street West
Etobicoke, Ontario
M8X 2Y4

Jim

re  ruling 02-005-R

I appeal the ruling "that these conditions may not be amended in any substantive way so as to weaken them (and thereby increase the legislative powers of the General Council)" to the Judicial Committee of the General Council.

The requested ruling was "whether the safeguards referenced in article 28(b) of The United Church of Canada Act and found in article 8.6.2 of the Basis of Union are themselves subject to remit".

My appeal is as one affected by the ruling as a member of the United Church of Canada.

The grounds for the appeal are "076(f)iv. that the Decision was wrong in law".

The appeal is with regret that the Manual offers no other means to resolve the issues, that the only grounds for appeal are adversarial.

Find included with the text of this appeal the Appellant's Statement per 076(g) outlining the arguments in support of the appeal as follows:

I submit:

For the purposes of this appeal deference is made to describing article 8.6.2(1) [formerly 24(2)(a)] as "conditions".

 1.  that the ruling offers arbitrary direction, and is thereby inappropriate.

The ruling references "the votes of which are received by the designated date, provided that at least two-thirds of the eligible courts have responded by that date", which changed 8.6.2(1) by
      a.  adding a limitation of time
           the by-laws previously provided for limitation of time
      b.  permitting less than a majority of presbyteries approving a remit
           where previously of 94 presbyteries the approval by 48 presbyteries would constitute a majority, now as few as 32 presbyteries constitute a majority
      c.  making the previously "no vote" of abstaining a "non-vote"

Most people would understood these as "substantive" changes which permitted legislation which might not otherwise be approved ["and thereby increase the legislative powers of the General Council"]; but the ruling is silent to such inconsistency, making it unclear what "substantive" means.

The word "substantive" is subjective in interpretation, and thereby offers arbitrary direction.

 2.  in drafting The United Church of Canada Act the precedents to the United Church of Canada
      a.  set forth the doctrine and polity sections of Schedule A subject to which the General Council can "...make such by-laws, rules or regulations as it may deem expedient for the exercise of any powers conferred by this Act" and "all resolutions passed by the General Council shall have the force and effect of by-laws..."
[articles 28(b), 18(h), 24 The United Church of Canada Act]
      b.  separate article 24(2) of Schedule A as "conditions" which restrict the independent and exclusive right and power of The United Church to legislate in all matters concerning its doctrine, worship, discipline and government in the areas of
            -  changing doctrine and polity
            -  membership
            -  freedom of worship
            -  property

The "conditions" are the criteria subject to which the church can legislate and a "trust" in which the precedents conveyed themselves and property into the union. That a subsequent court might
            -  change doctrine or polity without approval by a majority
            -  change the terms of membership
            -  interfere with the freedom of worship
            -  deal with property other than as provided
was specifically restricted from the legislative powers, and the "conditions" are "safeguards" which deliberately form the only immutable characteristic of what this union might be or become.

To alter these is in some sense to cease to be the church described by The United Church of Canada Act.

 3.  the preamble to the ruling concedes
"the only restriction on these powers are the three self-described conditions in Article 8.6.2 [formerly 24(2)(a)] of the Basis of Union"
in reference to
"section 28(b) of the Act gives the General Council broad legislative powers in four areas: doctrine, worship, discipline and government of the United Church".

It is unreasonable that a legislative body could itself amend a restriction to its legislative powers.

 4.  that the "conditions" [article 8.6.2(1)] are ultra vires the legislative authority of The United Church of Canada, and therefore such ruling is wrong in law.

The Basis of Union is the authority under which the United Church of Canada functions.

Such authority was provided for by The United Church of Canada Act
"28. Notwithstanding anything in this Act contained, it is hereby declared:-
(b) That nothing in this Act contained shall be deemed to limit the independent and exclusive right and power of The United Church to legislate in all matters concerning its doctrine, worship, discipline and government, including therein the right and power from time to time to frame, adopt, alter, change, add to or modify its laws, subordinate standards and formulas and to determine and declare the same or any of them, but subject to the conditions and safeguards in that behalf contained in the Basis of Union." [also found 3(b) p. 5 Manual]

Schedule A [Basis of Union] of The United Church of Canada Act uses the term "conditions" within
"24. The General Council shall have full power:
"(2)    (a) To legislate on matters respecting the doctrine, worship, membership and government of the Church, subject to the conditions: First, that before any rule or law relative to these matters can become a permanent law, it must receive the approval of a majority of the Presbyteries, and, if advisable, pastoral charges also; Second, that no terms of admission to full membership shall be described other than those laid down in the New Testament; and, Third, that the freedom of worship at present enjoyed in the negotiating Churches shall not be interfered with in the United Church.
           (b) To legislate on all matters respecting property, subject to the limitations elsewhere provided in this Basis of Union, and subject also to the approval of the Conference in which the property is situated."
[The United Church of Canada Act as found in the Statutes of Canada]

the present text of the Basis of Union
"8.6 The General Council shall have full power:
"8.6.2 (1) to legislate on matters respecting the doctrine, worship, membership, and government of the Church, subject to the following conditions: First, that before any rule or law relative to these matters can become a permanent law, it must receive the approval of a majority of the Presbyteries, and, if advisable, Pastoral Charges also, the votes of which are received by the designated date, provided that at least two-thirds of the eligible courts have responded by that date. Second, that no terms of admission to full membership shall be prescribed other than those laid down in the New Testament. And third, that the freedom of worship at present enjoyed in the negotiating Churches shall not be interfered with in the United Church;
           (2) to legislate on all matters respecting property, subject to the limitations elsewhere provided in the Basis of Union, and subject also to the approval of the Conference in which the property is situated;"

Note differences in
      a.  punctuation and case
      b.  the use of "discipline" in The United Church of Canada Act and "membership" in the Basis of Union
      c.  reference to "conditions and safeguards" by article 28(b) but "safeguards" is not used in the Basis of Union
      d.  the addition of "following" before conditions sometime after 1981 in the Manual text
      e.  the addition of "the votes of which are received by the designated date, provided that at least two-thirds of the eligible courts have responded by that date"
           authorized for remit Record of Proceedings 1988 p. 137
           received Record of Proceedings 2000 p. 190
           objection by Oshawa Presbytery and Bay of Quinte Conference that "the best interests of the Church are served by a polity which is perceived as just, rational, and creative (Basis of Union 2.14, 2.15, 3.4, 8.5.2)" Record of Proceedings 2000 pp. 656-7
      f.  the use of "described" in the Statutes of Canada and "prescribed" in the Manual text
           [a printer's error in the Statutes of Canada as other similar differences occur elsewhere?]
      g.  the use of "with in"
      h.  the use of "this Basis of Union" in the Statutes of Canada and "the Basis of Union" in the Manual text
           [a printer's error in the Statutes of Canada as other similar differences occur elsewhere?]

The United Church of Canada Act
      a.  Schedule A of The United Church of Canada Act describes itself as the Basis of Union
      b.  article 28(b) "that nothing in this Act contained shall be deemed to limit the independent and exclusive right and power of The United Church to legislate in all matters concerning its doctrine, worship, discipline and government" applies to the Basis of Union and not The United Church of Canada Act itself
      c.  "that nothing in this Act contained shall be deemed to limit the independent and exclusive right and power of The United Church to legislate in all matters concerning its doctrine, worship, discipline and government, including therein the right and power from time to time to frame, adopt, alter, change, add to or modify its laws, subordinate standards and formulas and to determine and declare the same or any of them"
           is in the same article subject to
           "the conditions and safeguards in that behalf contained in the Basis of Union"
      d.  has variance in language as evidenced by the different words "discipline" and "membership", and while the term "safeguards" is not used in the Basis of Union the "conditions" of article 8.6.2(1) [formerly 24(2)(a)] meet the criteria as referenced in article 28(b) of "safeguards"
      e.  "matters concerning its doctrine, worship, discipline and government" are found in the Basis of Union
      f.  specific reference in the same article 28(b) to "subject to the conditions and safeguards in that behalf contained in the Basis of Union" takes precedence over the generality of legislation which might otherwise be inferred in "that nothing in this Act contained shall be deemed to limit the independent and exclusive right and power of The United Church to legislate in all matters concerning its doctrine, worship, discipline and government"
      g.  was conferred by a different court, requiring permission of that court to change a referenced specific restriction

The "conditions" of article 8.6.2(1) [formerly 24(2)(a)] are a specific restriction referenced by the same article 28(b) of The United Church of Canada Act which confers "the independent and exclusive right and power of The United Church to legislate in all matters concerning its doctrine, worship, discipline and government" - it is unreasonable that a legislative body could itself amend a restriction to its legislative powers.

That a previous remit was deemed to alter the conditions of article 8.6.2(1) does not invalidate this appeal. Appendix iii 2.(b) "...where a ruling is a precedent the general question of its correctness may be brought up later when there is no business pending, but cannot then affect the business transacted under the ruling" suggests the principle that any business transacted under the above change [remits which would not otherwise have been approved] would not be affected.

The ruling 02-005-R permits amendment of the "conditions" of article 8.6.2(1) by remit.

The "conditions" of article 8.6.2(1) as
      a.  a specific restriction of The United Church of Canada Act to "the independent and exclusive right and power of The United Church to legislate in all matters concerning its doctrine, worship, discipline and government, including therein the right and power from time to time to frame, adopt, alter, change, add to or modify its laws, subordinate standards and formulas and to determine and declare the same or any of them"
      b.  conferred by different court, requiring permission of that court to change the restriction
are ultra vires the legislative authority of The United Church of Canada, and therefore such ruling is wrong in law.

Rev. Don Anderson

October 18, 2002                                                          02 - 005 - R

Karen McLean
Secretary
Renfrew Presbytery
79 Wilson Street West
Perth, Ontario
K7H 2N7

Dear Karen:

Re: Safeguards contained in Basis of Union -- whether subject to remit

Renfrew Presbytery asked for my ruling on whether the safeguards referenced in Section 28(b) of The United Church of Canada Act (the "Act") and found in Article 8.6.2 of the Basis of Union are themselves subject to remit.

Section 28(b) of the Act provides:
[Notwithstanding anything in this Act contained, it is hereby declared:]
That nothing in this Act contained shall be deemed to limit the independent and exclusive right and power of the United Church to legislate in all matters concerning its doctrine, worship, discipline and government, including therein the right and power from time to time to frame, adopt, alter, change, add to or modify its laws, subordinate standards and formulas and to determine and declare the same of any of them but subject to the conditions and safeguards in that behalf contained in the Basis of Union.

Article 8.6.2 of the Basis of Union has been amended since it was appended to the Act. The predecessor version in 1925 was numbered Article 24(2)(a) and provides:
To legislate on matters respecting the doctrine, worship, membership and government of the Church, subject to the conditions: First, that before any rule or law relative to these matters can become a permanent law, it must receive the approval of a majority of the Presbyteries, and, if advisable, pastoral charges also; Second, that no terms of admission to full membership shall be described other than those laid down in the New Testament; and, Third, that the freedom of worship at present enjoyed in the negotiating Churches shall not be interfered with in The United Church.

The current version numbered Article 8.6.2 in the 2001 edition of The Manual is the following. For easy reference, I have italicized the difference between the two versions:
to legislate on matters respecting the doctrine, worship, membership and government of the Church, subject to the conditions: First, that before any rule or law relative to these matters can become a permanent law, it must receive the approval of a majority of the Presbyteries, and, if advisable, Pastoral Charges also, the votes of which are received by the designated date, provided that at least two-thirds of the eligible courts have responded by that date. Second, that no terms of admission to full membership shall be described other than those laid down in the New Testament; and, Third, that the freedom of worship at present enjoyed in the negotiating Churches shall not be interfered with in The United Church.

The provisions in Article 8.6.2 [formerly 24(2)(a)] are described as "conditions". Although the term "safeguards" is mentioned in the Act, there is no reference to this term in the Basis of Union, either in the 1925 or current version.

Amendments to the Basis of Union are made for various reasons, including changes in church policy, updating of terminology and editing for greater clarity. Any change to the wording in the Basis of Union requires a remit regardless of the purpose for which the change is made.

Section 28(b) of the Act gives the General Council broad legislative powers in four areas: doctrine, worship, discipline and government of the United Church. The only restriction on these powers are the three self-described conditions in Article 8.6.2 [formerly 24(2)(a)] of the Basis of Union.

I rule that none of these conditions may be deleted from the Basis of Union.
I also rule that these conditions may not be amended in any substantive way so as to weaken them (and thereby increase the legislative powers of the General Council).

Yours very truly,

Jim Sinclair
Acting General Secretary, General Council

cc.      Conference Executive Secretaries
           Carol Gierak, Ministry Employment and Policy Services