Guibord case

Brown then applied to the Superior Court of Quebec for an order of mandamus compelling the church officials to provide a burial for her husband in the Côte des Neiges Cemetery. The pleadings filed by both sides were complex, with several supplemental pleadings from both sides. Brown sought to have Guibord's remains buried in the Roman Catholic portion of the cemetery, "conformably to custom and law," and argued that her husband had been a practising Roman Catholic at the time of his death, filing his baptismal certificate and their wedding certificate.[2] The church officials challenged the availability of the remedy of mandamus, as well as denying that they had refused civil burial to Guibord. They asserted that they were prepared to carry out their civil duty to bury the remains, but as a matter of religious freedom, the Church had the right to decide whether to bury him in the portion of the cemetery reserved for Roman Catholics.[3] They also alleged that Guibord had been a "pécheur public" (i.e. - a public sinner), and therefore could be denied burial under Roman Catholic doctrine.

The petition was argued on 17 March 1870, before Mr Justice Mondelet. On 2 May 1870, Mondelet J. granted Brown's petition and ordered the burial of the deceased by the church officials, according to custom and law in the same way as any other parishioner who dies with the status of a Roman Catholic, and to enter his name in the parochial register according to law. He also ordered that the church officials pay Brown's court costs.[4]

The church officials then appealed to the Court of Review, which heard argument on 23 June 1870. On 10 September 1870, that Court allowed the appeal and dismissed the widow's petition. Speaking for the Court, Mr Justice Mackay held that the pleadings and judgment below were both defective. A writ of mandamus is only available to give specific, defined relief. The order to have Guibord buried "according to custom and law" was not a specific remedy, as it did not make clear where the burial was to take place. The church officials could comply with it by burying him in the portion for non-Roman Catholics, which would not be satisfactory to the widow. As well, the order to fill out the parochial records was defective, since the church officials named in the petition did not have custody of the parochial records. Finally, the decision below was bad for dismissing the church officials' plea of their religious freedom.[5]

Old Montreal Palais de Justice

Brown then appealed to the Quebec Court of Queen's Bench (Appeal Side).

When the matter first came on for argument, on 2 December 1870, Brown's counsel applied to have four of the judges who were about to hear the appeal recuse themselves under s. 176 of the Code of Civil Procedure.[6] They argued that one of the points in issue was the extent of the civil courts' power over the church, which was denied by Roman Catholic church doctrine under pain of anathema and excommunication. Since the four judges (Chief Justice Duval and Justices Caron, Badgley and Monk) were Roman Catholics, counsel argued that they "acknowledged the authority of the Roman power" and could be under the threat of excommunication if they did not rule in favour of the church officials. The Court heard argument on the motion for recusation and reserved their decision. A week later, on 9 December 1870, they gave their decision, refusing to receive the petitions for recusation, or to allow them to be entered in the register of the Court. The Court, composed of Duval C.J., Caron, Drummond, Badgely and Monk, then heard the appeal.[7]

On 7 September 1871, the Queen's Bench unanimously dismissed Brown's appeal and upheld the decision of the Court of Review, but on divided grounds, with each judge giving reasons:

• Caron J. held that the original writ was void for not containing a command; that it was defective in being addressed to both the curé and the fabrique, as only the curé had superintendence of burials and entries in the register; that the petition was only for civil burial, which the church officials had offered to perform; and that the church officials' condition that the burial be in a particular part of the burial ground was reasonable.
• Duval C.J. agreed with Caron J., but based his judgment on the defect in the form of the writ.
• Drummond J. held that the writ was right in form, but agreed that the appeal should be dismissed because the civil courts had no jurisdiction to order ecclesiastical burial when refused by the ecclesiastical authorities.
• Badgley J. held that the writ was right in form, and that the courts did have the power to order the performance of the duties although affecting spiritual rights, but agreed that the appeal should be dismissed because the writ commanded the performance of two duties, the burial and the entry into the parochial register, and the church officials named in the petition had no power to carry out the command to enter the burial in the parochial register.
• Monk J. held that the writ and all proceedings were regular and sufficient, but agreed that the appeal should be dismissed because the courts had no jurisdiction over the matters in dispute.[8]

The Court ordered Brown to pay the church officials' court costs.

Brown then applied successfully for leave to appeal to the Judicial Committee of the Privy Council, at that time the court of last resort within the British Empire. However, before her appeal could be heard, Brown died on 24 March 1873. In her will, she left all that she had to the Institut Canadien. The Institut then applied to be allowed to prosecute the appeal, on the basis that as Brown's heir, the Institut was liable to pay the court costs in the Quebec courts and therefore had a legitimate interest in the litigation. In an interim decision in 1873, the Judicial Committee gave the Institut standing to carry the appeal, without prejudice to the church officials' right to challenge the standing at the hearing of the appeal.[9]

The Judicial Committee heard the appeal in the early summer of 1874, devoting seven sitting days to the hearing. The Institut was represented by Mr Doutre, Q.C., of the Quebec Bar, and Mr Bompas, of the English Bar. The church officials were represented by Mr Matthews, Q.C., and Mr Westlake, Q.C., both of the English Bar. On 21 November 1874, the Judicial Committee gave its decision, allowing the appeal and ordering the church officials to provide a burial for the deceased in the area of the cemetery reserved for Roman Catholics.

Sir Robert Phillimore

The judgment of the Committee was given by Sir Robert Phillimore, a noted expert in ecclesiastical law in England. He addressed the various procedural issues which had been raised by the case, beginning by noting that the church officials had not pressed their objections to the Institut's standing to carry on the appeal, since the Institut was Brown's universal legatee and therefore had an interest in having the order to pay costs overturned. He also confirmed that the Committee did not think the argument for recusation of the Queen's Bench judges could be sustained. As well, he ruled that the original writ for mandamus was in proper form and gave the court sufficient discretion to craft the remedy sought.[10]

Turning to the merits of the appeal, Phillimore J. declined to rule on the precise status of the Roman Catholic Church in Quebec, such as whether it should be considered an established church, and also declined to rule on whether the civil courts of Quebec retained the jurisdiction over the church which the courts of New France had held before the Conquest. Instead, he based his decision on the principle that even if churches are merely voluntary and private organisations, the members of church are entitled to have the church administered according to the church's own internal laws and rules. In this case, the issue was whether the deceased had forfeited the right to ecclesiastical burial according to the church's own internal laws.[11]

Phillimore J. then reviewed the pre-Conquest Quebec Ritual dealing with refusal of ecclesiastical burial. The three possibilities under the Ritual cited by counsel for the church officials in support of the refusal were that Guibord had been excommunicated as a result of his membership in the Institut; that he had failed to take communion at Easter-tide; and that he was a "pecheur public" as a result of belonging to the Institut. Phillimore J. ruled that to come under the category of excommunication, it would have been necessary for the Bishop of Montreal to excommunicate Guibord by name. Phillimore J. acknowledged that such an action was solely within the power of the Bishop, and if it had occurred, would not have been reviewable by the courts. However, the evidence showed that there had been no such explicit excommunication of Guibord. Phillimore J. also dismissed the argument based on Guibord's failure to take Easter communion since Guibord had sought to partake of the sacrament, but the church had denied him because of his membership in the Institut.[12]

Finally, Phillimore J. reviewed the category of a "pecheur public," which was defined in the Ritual by reference to activities such as prostitution and usury. Counsel for the church officials argued that this category was very broad, and could include any activities which the Bishop defined to be public sins. Phillimore J. rejected that interpretation of the Ritual and concluded that while it might be broadened beyond the specific examples of public sinners given in the Ritual, it could not be expanded indefinitely by the Bishop. The Bishop could not unilaterally dispense with the application of the general ecclesiastical law and prohibit ecclesiastical burial of a parishioner on whatever grounds the Bishop personally thought sufficient. Phillimore J. held that there was no indication in the record that the members of the Roman Catholic Church in Quebec had at any time consented to such an expansion of the Bishop's authority. Phillimore J. concluded that Guibord had not been a "pécheur public" as defined by the Ritual and so the church officials did not have the power under their own Ritual to deny him ecclesiastical burial.[13]

In conclusion, Phillimore J. noted that the Committee was not deciding whether the civil courts could order that the burial be accompanied by the usual ecclesiastical rites because Brown had forewent that demand and counsel for the Institut had not requested it in the appeal to the Committee. Instead, the Committee's judgment was that the orders of the Court of Review and Court of Queen's Bench be reversed and that an order issue, requiring the church officials to allow the burial of the deceased in the section of the cemetery reserved for Roman Catholics, upon payment of all the usual fees. The Committee also ordered costs to the Institut in all of the lower courts and the appeal to the Committee, except for the costs of the motion to recuse the judges in the Queen's Bench.[14]