Date: 20091029
Dockets: A-460-08
A-456-08
A-457-08
A-458-08
A-459-08
A-461-08
A-462-08
Citation: 2009 FCA 307
CORAM: NOËL
J.A.
NADON
J.A.
PELLETIER
J.A.
A-460-08
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
and
COLETTE LEFEBVRE
Respondent
A-456-08
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
and
JEAN-PIERRE DESNOYERS
Respondent
A-457-08
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
and
MICHELINE BOLDUC
Respondent
A-458-08
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
and
DENISE ROBERT GODIN
Respondent
A-459-08
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
and
LINDA DIAMOND
Respondent
A-461-08
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
and
MICHÈLE RICHARD AUCLAIR
Respondent
A-462-08
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
and
LISETTE SIMARD CÔTÉ
Respondent
REASONS FOR JUDGMENT
NOËL J.A.
[1]
These
are seven appeals from a decision by Madam Justice Louise Lamarre Proulx of the
Tax Court of Canada (the TCC judge) dated June 27, 2008 (2008 TCC 395), allowing,
after a consolidated hearing, each of the respondents’ appeals from assessments
by the Minister of National Revenue (the Revenue Minister) under the Income
Tax Act, R.S.C. 1985, c. 1 (5th Supp.) (the Act).
[2]
The
seven appeals were consolidated by order of this Court on November 28, 2008, with Court file A-460-08 designated as the lead
appeal. Pursuant to that order, these reasons will be filed in Court file A-460-08, and a copy entered as reasons for judgment in each of the
related files.
BACKGROUND
[3]
During the relevant
period (taxation years 2003, 2004 and 2005 for respondent Linda Diamond and
2005 for all the others), the respondents performed various duties as pastoral
agents of the Roman Catholic Church (hereinafter “the Church” or “the Catholic
Church”), specifically for the dioceses of Saint-Jean-Longueuil and
Saint-Jérôme.
[4]
Paragraph
8(1)(c), if applicable, would allow the respondents to deduct their housing
expenses in an amount not exceeding their remuneration from their employment by
the Church. The provision reads as follows:
|
Deductions
allowed
8. (1) In computing a taxpayer’s income for a taxation year from an
office or employment, there may be deducted such of the following amounts as
are wholly applicable to that source or such part of the following amounts as
may reasonably be regarded as applicable thereto
. . .
Clergy
residence
(c) where, in the year, the taxpayer
(i) is a
member of the clergy or of a religious order or a regular minister of a
religious denomination, and
(ii) is
(A) in charge of
a diocese, parish or congregation,
(B) ministering
to a diocese, parish or congregation, or
(C) engaged
exclusively in full-time administrative service by appointment of a religious
order or religious denomination,
the amount,
not exceeding the taxpayer’s remuneration for the year from the office or
employment, equal to
. . .
|
Éléments déductibles
8. (1) Sont
déductibles dans le calcul du revenu d’un contribuable
tiré, pour une année d’imposition, d’une charge ou d’un emploi ceux des
éléments suivants qui se rapportent entièrement à cette source de revenus, ou
la partie des éléments suivants qu’il est raisonnable de considérer comme s’y
rapportant :
[…]
Résidence des
membres du clergé
c) lorsque le contribuable, au
cours de l’année :
(i) d’une
part, est membre du clergé ou d’un ordre religieux ou est ministre régulier
d’une confession religieuse,
(ii)
d’autre part :
(A) soit dessert
un diocèse, une paroisse ou une congrégation,
(B) soit a la
charge d’un diocèse, d’une paroisse ou d’une congrégation,
(C) soit
s’occupe exclusivement et à plein temps du service administratif, du fait de
sa nomination par un ordre religieux ou une confession religieuse,
le montant,
n’excédant pas sa rémunération pour l’année provenant de sa charge ou de son
emploi, égal :
[…]
|
[5]
The respondents, who
are not ordained, concede that they are neither members of the clergy nor
members of a religious order. However, as they act under the authority of pastoral
mandates conferred by a bishop, they submit that they are “regular ministers”
within the meaning of the Act.
[6]
The pastoral mandates
define the pastoral ministries entrusted to the respondents. Most of these
mandates have a one-year term and are renewable. In case of renewal, subsequent
mandates generally have a three-year term.
[7]
Upon obtaining such a
mandate, pastoral agents sign an employment contract by which they undertake,
as salaried employees, to carry out their assigned functions. The contract must
specify that the employment relationship is automatically terminated by the
revocation or non-renewal of the pastoral mandate.
[8]
A pastoral agent may
be authorized to administer certain sacraments, in which case he or she acts as
an “extraordinary minister”, as opposed to an “ordinary minister”, a title
reserved for ordained ministers under the rules of the Church.
TAX COURT OF CANADA DECISION
[9]
The
TCC judge stated at the outset that two requirements must be met under paragraph 8(1)(c): a status requirement and a function
requirement (reasons, para. 3). She defined the issue as follows (reasons,
para. 4):
[4] The
deduction was disallowed under the status test in all cases. The [Appellant's]
position is that the [Respondents] are not members of the clergy or of a
religious order, and are not regular ministers of a religious denomination. The
[Respondents] admit that they were not members of the clergy and were not
members of a religious order. However, they submit that they are regular,
albeit non-ordained, ministers of the Roman Catholic Church.
[10]
The
TCC judge stressed the well-established principle that the issue of whether the
respondents are regular ministers within the meaning of the Act must be
analyzed in light of the rules of the Church. Accordingly, she referred to
various provisions of canon law (Canons 228 and 230 of the Code of
Canon Law in particular) that describe the role of pastoral agents
(reasons, para. 31), as well as a document approved by the Pope on August 13,
1997, entitled Instruction on Certain Questions Regarding the Collaboration
of the Non-Ordained Faithful in the Sacred Ministry of Priest (the
Instruction) (reasons, para. 14).
[11]
After
an exhaustive review of the evidence (reasons, paras. 5 to 48), the TCC judge
began her analysis by suggesting that inconsistent judgments had been issued by
her Court. She found that Noseworthy v. Canada, [1999] T.C.J. No. 209
(QL) (Noseworthy) and Kolot v. Canada, [1992] T.C.J. No. 673 (QL)
(Kolot), implied that the respondents could be considered regular
ministers, while Pereira v. Canada, 2006 TCC 300, [2006] T.C.J. No. 405
(QL) (Pereira) and Hardy v. Canada, [1997] T.C.J. No. 1191 (QL) (Hardy),
state the opposite (reasons, paras. 49 to 53).
[12]
The
TCC judge paid particular attention to Pereira, in which
Mr. Justice Bédard, faced with a pastoral mandate practically
identical to those of the respondents, held that Mr. Pereira did not have the status of “regular
minister” within the meaning of the Act (reasons, paras. 54 to 56).
[13]
According
to the TCC judge, Bédard J.’s refusal to recognize the status of regular
minister in the case of Mr. Pereira resulted from the latter’s failure to
provide sufficient evidence (reasons, paras. 57 to 60). The TCC judge found
that submissions presented to her shed more light on the structure of the
Catholic Church and the place of pastoral agents within it (reasons, para. 61).
In particular, the evidence reveals the following (reasons, paras. 62 and 63):
[62] . . . At a time when
there is a shortage of priests, which the Vatican hopes is temporary, the
Vatican is allowing lay persons to minister, and has established a legal
framework in which they may do so.
[63] . . . They perform
these duties in the place of ordained ministers, and do not perform all such
ministers' duties. Pastoral agents derive their legitimacy from an official
delegation by the bishop, and, in carrying out their duties, they are under
ecclesiastical authority. . . .
[14]
The
TCC judge then reviewed the attributes of a regular minister, as defined by the
courts. She wrote that a regular minister must have an appointment by the lawful
authority of a church, authorizing the person to minister spiritually to the
faithful, on an essentially ongoing basis, in accordance with the beliefs and
dogmas of the church in question. In this case, pastoral mandates or mission
letters fulfill the function of an investiture document (reasons, paras. 63
to 66).
[15]
Paragraph 71
of the reasons reveals the essence of the rationale behind the TCC judge’s
finding that that the respondents were “regular ministers” within the meaning
of the Act:
The evidence
discloses that pastoral agents, called extraordinary ministers, are regular
ministers of the Church. Their ministry is completely integrated, on a regular
basis, into the Church's ministries, including the Ministry of the Word,
catechesis, visiting the sick, sacramental preparation and mystagogia, ministry
for those who are preparing for a funeral and to the bereaved, hospitality,
solidarity with the poor, and charitable or humanitarian action. Without the
ministry of lay persons, the Church would be unable to go on. The Bishop of the
Longueuil diocese stated that their role is essential, the various authors that
were cited are in agreement, and the Vatican itself has expressed the same
opinion by providing a legal framework for these non-ordained lay persons.
[Emphasis added.]
With this finding, the TCC judge gave effect to the
recommendation of the Bishop of St-Jean-Longueuil that it would be fair and
equitable with respect to other religions to grant the sought-after deduction
to the pastoral agents of his church (reasons, para. 7).
[16]
The
TCC judge’s decision was followed by the Court of Québec in Côté c. Québec
(Sous-ministre du Revenu), 2008 QCCQ 12517 and Rivard c. Québec (Sous-ministre du
Revenu), 2009 QCCQ 1399. Applying
the reasoning of the TCC judge to those cases, the Court of Québec granted to pastoral
agents the equivalent deduction to the one at issue, pursuant to
section 76 of the Taxation Act, R.S.Q. c.
I-3. Although not identical, the provision sets out the same requirements as
paragraph 8(1)(c) of the Act.
ALLEGED ERRORS
[17]
The
appellant submits that the TCC judge confused the respondents’ status with the
functions they exercised by them for their respective dioceses, thereby
committing an error of law. The appellant argues that it is status, rather than
function, that serves to determine whether a person is a “regular minister”
within the meaning of the Act.
[18]
The
appellant claims that the TCC judge also erred in setting aside prior decisions
of the Tax Court of Canada, citing a supposed conflict. According to the
appellant, Hardy and Pereira raise the same issue, and the judge
was mistaken in refusing to follow those cases.
[19]
Finally,
the appellant submits that the TCC judge committed a palpable and overriding
error in her assessment of the facts when she held that the Catholic Church
recognized the respondents as belonging to a superior class of the faithful in
spiritual matters.
ANALYSIS AND DECISION
[20]
The
TCC judge must direct herself correctly in law and not confuse status with
function. This aspect of the challenge is subject to the standard of
correctness because it raises a pure question of law. Furthermore, the finding
that the respondents were regular ministers within the meaning of the Act and
therefore benefitted from the deduction prescribed by paragraph 8(1)(c)
is a question of mixed law and fact and cannot be set aside in the absence of a
palpable and overriding error (Housen v. Nikolaisen, 2002 SCC 33, [2002]
2 S.C.R. 235; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R.
190).
[21]
Before
undertaking the analysis, I must note that the canon law to which the TCC judge
refers in her reasons must, as foreign law relevant to the disposition of the
case, be proven by expert evidence before it can be considered (Fabrique de la paroisse
de L’Ange-Gardien c. Procureur général de la province de Québec, (1980) C.S. 175 at paras. 249
to 253). However, since the parties raised no objections on this point, I
conclude that they accept for the purposes of these appeals that the canon law
to which the TCC judge refers and on which she bases her decision faithfully
reflects the applicable law and must be taken as proven.
[22]
Paragraph
8(1)(c) of the Act sets out two requirements: a status requirement
(subparagraph 8(1)(c)(i)) and a function requirement (subparagraph
8(1)(c)(ii)). Only the status of the respondents as regular ministers
within the meaning of subparagraph 8(1)(c)(i) is being challenged
here.
[23]
The
debate surrounding the adoption of the test set out in subparagraph 8(1)(c)(ii)
in 1956 allows us better to understand Parliament’s intention with respect to
the paragraph as a whole. In its initial version introduced in 1949,
paragraph 8(1)(c) contained no function requirements. Seven years
later, following a judgment in which the deduction was granted to a minister of
the United Church of Canada whose sole occupation was teaching (James
Rattray Guthrie v. Minister of National Revenue, 55 DTC 605 (QL)), the then
Finance Minister proposed that the right to the deduction be limited to persons
who, in addition to having the required status, fulfilled the functions
described at subparagraph 8(1)(c)(ii) of the Act. According to the
Finance Minister (House of Commons, Official Report of Debates, Volume
V, (1956), at p. 6775):
The present amendment
provides that any clergyman, whether he be in fact a pastor in charge of a
congregation or a member of the church body in the higher level, if I may put it
that way, who engages in church work exclusively including acting as pastor
from time to time, would have the benefit of the deduction.
[24]
It
is therefore to status that the legislature is referring in subparagraph 8(1)(c)(i)
and not to functions. It is only in the following subparagraph that the
legislature sets out the function requirement.
[25]
The
term “regular minister” is not defined in the Act. The courts have nevertheless
been called upon to give meaning to those words. In Hardy, Mr. Justice
Rip performed an exhaustive analysis of the Canadian and British caselaw and
retained three elements from the decision of the High Court of Justiciary of
Scotland in Saltmarsh v. Adair, [1942] SC(JC) 58 (Saltmarsh),
which were later adopted in Noseworthy (para. 28) and Pereira
(para. 20). According to Rip J., the judges in Saltmarsh (Hardy,
para. 21):
. . . appear to infer
that a “regular minister” is one who
i. performs
spiritual duties, the conduct of religious services, the administration of
sacraments and the like;
ii. is
appointed by a body or person with the legitimate authority to appoint or
ordain ministers on behalf of the denomination; and
iii. is in a position or
appointment of some permanence.
Rip J. added (ibidem):
In the absence of a
legitimate appointment, the mere performance of the duties of a minister will
not suffice, in their view, to constitute a “regular minister”.
[26]
The
last comment demonstrates that it is not so much the position or the duties
that have to have some permanence (see point iii.), but rather the status of
the person who holds the position or performs the duties. The fact that a
person holds a position or performs duties in a relatively permanent manner
will not suffice if the person does not also have a legitimate appointment. This
is the proposition for which Saltmarsh stands.
[27]
The
requirement that a regular minister possess a superior status in spiritual
matters has also been adopted by the courts. This test, which originated in Walsh
v. Lord Advocate, [1956] 3 All ER 129 (C.L.) (Walsh), has been
applied by the Tax Court of Canada on several occasions, notably in Kolot (p.
6) and Pereira (para. 17):
. . . he
must have by virtue of his appointment as a minister what might be called ‘a
clergyman status’ which sets him apart from and places him over the laity of
his denomination in spiritual matters.
[28]
It
should be noted that the issue in Walsh and Saltmarsh was related
to status. It had to be determined in both cases whether the appellants, who
were active members of the Jehovah’s Witnesses, were “. . . [men] in holy
orders or [regular ministers] of any religious denomination”, in which case
they would be exempt from military service (Walsh, p. 3; Saltmarsh,
p. 4). The appellants sought the status of “regular minister” on the grounds
that they performed the functions associated with that position, even though
the status seemed to elude them.
[29]
In
refusing to grant the exemption, the judges in Walsh emphasized the
dichotomy between status and function:
. . . It is the
spiritual or pastoral status and not the performance of functions that gives
the right to exemption from military service. A clerk in holy orders is
exempted whether or not he holds a benefice or preferment, so also is the
minister or pastor of any other religious body . . . (Lord Goddard,
p. 135).
. . .
. . . What
distinguished the appellant as a regular minister, it was said, was his
functions or vocation. The appellant was discharging full time spiritual
functions as a congregation servant and pioneer publisher. This distinguished
him from other members of this sect and made him a regular minister. The
definition was satisfied by a person officially charged by his denomination
with whole time spiritual functions which constituted his vocation for the time
being. But that is not, in my opinion, the test. It would exclude many
ordained ministers who were not discharging any, or at least full time,
spiritual functions and who would according to ordinary conceptions be
regarded in this country as regular ministers. . . . (Lord Keith of
Avonholm, p. 137).
. . .
. . . The thing goes
deeper than function. At bottom there is a sacerdotal status which once it is
properly acquired remains with its holder independently of the particular
functions which he is called on to perform. Something of that sort is at
the root of the conception of being in holy orders or being a regular minister.
. . . (Lord Thomson, p. 140).
. . .
At the hearing before us
. . . [i]t was claimed that the evidence established that the pursuer as
congregation servant was the spiritual “overseer” of the congregation and
performed many of the functions such as funeral services, marriage ceremonies
(where permitted by the law of the land), conduct of the service meeting of the
congregation, visiting of the sick and so forth which are performed by the
pastors of the more ordinary religious bodies in this country. In my opinion
it is status rather than function which is the determining factor in qualifying
a man for being the holder of the position of “A man in holy orders or a
regular minister of any religious denomination”, but even in the matter of
function I do not thing that the congregation servant (or company servant as
until recently he was called) in the Jehovah Witness body truly matches up to
the position of a clergyman in a more ordinary type of religious denomination. .
. .
and further:
. . . All this goes
to show in my opinion that it is the status yielded by the position rather than
the functions which may have to be performed in it which should be regarded as
determinative of whether a man is a regular minister of a religious
denomination in the sense of the statute. . . . (Lord MacKintosh, pp. 143,
144)
[Emphasis added.]
[30]
In Saltmarsh,
decided a few years earlier, the judges focussed on the fact that the functions
the appellant was authorized to perform did not distinguish him from ordinary
members of his religion:
. . . Their ideal
was that their religious services should be conducted by laymen who occupied
the position of elders. Accordingly, when the appellant conducted the religious
services set forth in article 19 of the stated case, he was acting, not as a
person set apart and holding the sacred office of minister, but as a person
received and allowed to conduct services on the same footing as an elder of a
congregation.
The appointment by the
unlimited company, therefore, was not that of a regular minister within this
denomination, and there was no such thing as a regular ministry of the
denomination. It was not a permanent appointment; it was merely an appointment
terminable at the will of the body which appointed him, and that was an
unlimited company. . . . (Lord Normand, p. 6).
. . .
. . . It therefore
appears to me that the services performed by the appellant, even if he had been
authorized by a religious body to perform them, could not be regarded as
clerical services, seeing that, although more regularly performed than by
the occasional servants of the company, these services are regarded by the
company as services suitable to be entrusted, not only to clerics, but to
laymen. . . . (Lord Moncrieff, p. 7).
[Emphasis added.]
[31]
The
TCC judge did not question the relevance of these decisions or of the legal
tests the Tax Court of Canada has drawn from them. She held, however, that the
application of these tests by her colleagues had given rise to conflicting
decisions. I shall now take a closer look at the inconsistency supposedly
identified by the TCC judge.
[32]
According
to the TCC judge, Kolot and Noseworthy stand for a broader
interpretation of the concept of regular minister and support her finding in
this case, while Hardy and Pereira go the other way.
[33]
I
note at the outset that Kolot has limited application; the issue there
was whether the appellant was a regular minister of the United Church of
Canada. As the TCC judge is aware, the analysis must be performed in light of
the rules of the relevant church.
[34]
Nor
does Noseworthy support the TCC judge’s holding. It is true that in that
case, the Court held that the appellant, who was clearly not ordained,
nevertheless possessed the status of regular minister within the meaning of the
Act. However, as pointed out by Bédard J. in Pereira, this is explained
by the unusual facts of that case, in particular the following (Pereira,
para. 25):
1) the
Catholic archbishop of Halifax had granted [to Ms. Noseworthy] the position of
chaplain;
2) she
held that position permanently;
3) to my
great surprise, she could administer sacraments and did so;
4) the
Catholic Church considered her to be a Catholic chaplain working regularly as
minister.
[35]
On
the other hand, the two other decisions to which the TCC judge refers deal with
precisely the issue we have before us. Pereira merits close attention.
[36]
The
issue in that case was whether Mr. Pereira, who held a pastoral mandate
conferred by the archbishop of the Archdiocese of Québec, and whose duties were
those related to a hospital chaplaincy, was a “regular minister” within the
meaning of paragraph 8(1)(c) (Pereira, para. 2). As in the case
before us, it was admitted that he satisfied the function requirement; the only
doubt was as to his status (idem, para. 15).
[37]
Having
performed an exhaustive review of the evidence and submissions (idem,
paras 2 to 11), Bédard J. was not convinced that that the Catholic Church
recognized the appellant as having a superior and distinct rank in spiritual
matters (idem, para. 19). Next, after
considering the factors developed in Hardy, Bédard J. found that
although the Appellant occupied this position on a full-time basis, he
performed his duties according to the goodwill of the archbishop of Québec and
his appointment therefore does not appear to be permanent (idem, paras.20
to 23). Bédard J. concluded his analysis as follows (idem, para. 24):
In short,
simply by performing most of the duties of a “regular minister” under a precise
and temporary liturgical mandate is, in my opinion, insufficient to make the
Appellant a “regular minister” of the Catholic Church.
[38]
The
TCC judge set aside Bédard J.’s finding on the grounds that the more extensive
evidence presented to her justified the opposite finding.
[39]
The
issue of status must be analyzed from the perspective of the Catholic Church,
which alone determines the status it confers to its members. In canon law, the
distinction between ordained ministers and lay faithful (among whom pastoral
agents are recruited) remains as fundamental today as it has always been.
[40]
Moreover,
only ordained ministers are conferred a status that can be said to be permanent
(i.e. ad vitam aut
culpam).
Even though under canon law, the lay faithful are authorized to perform certain
specific functions that are normally entrusted to ordained ministers, they are
called upon to do this on a temporary basis when there is a scarcity of ordained
ministers:
Canon 228 -
. . .
§ 1. Lay
persons who are found suitable are qualified to be admitted by the sacred
pastors to those ecclesiastical offices and functions which they are able to
exercise according to the precepts of the law.
Canon 230 - .
. .
§ 2. Lay
persons can fulfill the function of lector in liturgical actions by
temporary designation. All lay persons can also perform the functions of
commentator or cantor, or other functions, according to the norm of law.
§ 3. When
the need of the Church warrants it and ministers are lacking, lay persons,
even if they are not lectors or acolytes, can also supply certain of their
duties, namely, to exercise the ministry of the word, to preside offer
liturgical prayers, to confer baptism, and to distribute Holy Communion,
according to the prescripts of the law.
[Emphasis added.]
[41]
The Instruction,
on which the TCC judge relies heavily throughout her reasons, is, as required
by canon law (Canon 34, para. § 2), consistent with
the law in that it clearly indicates that pastoral agents are called upon to
supply certain of the duties of ordinary ministers on a temporary basis.
However, it is ordinary ministers and the revival of priestly vocations that
will enable the Church to fulfill its mission on earth. This is the message of
the Instruction as a whole, but the following passage, found at the end of the
document under the heading “Conclusion” leaves no doubt on this point (Instruction,
pp. 16 and 17):
. . .
While on the
one hand the numerical shortage of priests may be particularly felt in certain
areas, on the other, it must be remembered that in other areas there is
currently a flowering of vocations which augurs well for the future. Solutions
addressing the shortage of ordained ministers cannot be other than transitory
and must be linked to a series of pastoral programs which give priority to the
promotion of vocations to the Sacrament of Holy Orders. (115)
In this
respect the Holy Father notes that in “some local situations, generous,
intelligent solutions have been sought. The legislation of the Code of Canon
Law has itself provided new possibilities, which however, must be correctly
applied, so as not to fall into the ambiguity of considering as ordinary and
normal, solutions that were meant for extraordinary situations in which priests
were lacking or in short supply”. (116)
The object
of this document is to outline specific directives to ensure the effective
collaboration of the non-ordained faithful in such circumstances while
safeguarding the integrity of the pastoral ministry of priests. “It should also
be understood that these clarifications and distinctions do not stem from a
concern to defend clerical privileges but from the need to be obedient to the
will of Christ, and to respect the constitutive form which he indelibly
impressed on his Church”. (117) (footnotes omitted)
. . .
[Emphasis added.]
[42]
The
TCC judge cites several excerpts of an article published by Anne Asselin, JCD, of
the Faculty of Canon Law of St. Paul University in Ottawa (Les laïcs au service de
leur Église, Le point actuel du droit [Lay persons serving their Church:
The current law]), which questions the hope placed by the Church in its
campaign for new vocations, as suggested by the Instruction (reasons, paras. 16
and 18):
[translation]
The
Instruction suggests that the solution to the shortage of priests lies in the
encouragement of a “zealous and well-organised pastoral promotion of vocations”.
. . . “Any other solution to problems deriving from a shortage of sacred ministers
can only lead to precarious consequences.” No one can argue with a campaign
for vocations; only a priest can replace a priest. But we can ask whether all
our hope for the future of the Church should be placed there. A well-managed
lay ministry may turn out to be a good thing for the Church.
This
doctrinal section of the document concludes with a reminder that this
collaboration of lay people in the ministry of priests is of extraordinary
character and that its application must “avoid . . . the abuse of multiplying
'exceptional' cases over and above those so designated and regulated.”
. . .
. . . The
Assembly of Quebec Catholic Bishops also studied the question of traditional
vocabulary and current experience of ministry. The bishops suggested adopting a
“certain number of agreements to avoid sterile struggles about semantics and
even more tensions between ministers that can only harm the community.” It
seems clear that, in practice, the restrictions on terminology imposed by the
Instruction did not have the desired impact, at least not yet, ten years after
its promulgation.
. . .
The
Instruction does not seem to take into account the fact that the situations
which it calls exceptional are in reality frequent, if not habitual, in many
dioceses:
My real difficulty with
this restrictive decree is that it deals with extraordinary ministers of
Communion, and lay ministers in general, at best as helpers who are reluctantly
authorized for some exceptional situations for which, unfortunately, no other solution
can be found. My real concern is the refusal to recognize the actual pastoral
situations in many countries around the world. (R. Stecher, Bishop of
Innsbruck, Austria.)
. . .
. . . What
ought to be an exception has, in many cases, become standard practice or habit.
This situation can be found everywhere in Canada, Europe and the United States.
Whereas lay
people were once said to be involved in “an apostolate in the world,” they now
exercise “pastoral ministries.” The exercise of such ministries is founded in
baptism and in a juridical act: a mandate from the competent authority. The
activities undertaken by a pastoral agent in the context of Canon 517, §2
include, among other things, preaching, catechesis, presiding over prayer,
spiritual direction, administration, assistance to those who are non-practising
and to non-believers, and the responsibility to assure that sacramental
celebrations are made available to the faithful. . . .
In his
discussion of such lay ministers, Roch Pagé describes them as “full-time
pastoral agents,” preferring this term to “permanent pastoral agents” because a
mandate is never for life. It is for a full-time office and for a certain length
of time. Permanent ministries—ministries for life—are reserved for ordained,
instituted ministries. Even if these ministers cannot exercise their ministry
full time, they are still permanent. See Pagé, “Full-Time Pastoral Ministers”,
pp. 167-168.
Let us say then that in
participating in the exercise of a pastoral office, clerics and laity are
linked together by the stability that their mandate gives them rather than by
the permanence that constitutes the basis of their mandate, since this can
differ from one person to another (Pagé, p. 168).
. . . The
inclusion of lay people in the ministry of the church and in offices of
ecclesiastical responsibility has perhaps happened because of the lack of
priests, but it is here to stay. This is not a temporary or provisional measure
that will disappear as soon as there are enough ordained ministers.
[Emphasis added.]
[43]
Conscious
of the supplemental role of pastoral agents under canon law and the temporary
mandate resulting therefrom, the TCC judge infers from this article that even
though recourse to pastoral agents is described as temporary, in reality they
are called upon to perform their functions on a regular and ongoing basis
(reasons, para. 19). It is this reality described by the author of the article
that led the TCC judge to hold that the status conferred on pastoral agents did
in fact have the requisite permanence (see also the article published by Alphonse
Borras of the Université
Catholique de Louvain entitled, “À propos des ministères, L’articulation des ministères : de la
théologie à la lettre de mission”, excerpts of which are cited by the TCC judge
(reasons, para. 20)).
[44]
The
difficulties with this approach are its focus on function rather than status
and its disregard for the perspective of the Catholic Church. Even if we accept
the argument by the author of the article that the functions of pastoral agents
are permanent, the status conferred on them by the Church nevertheless remains
temporary, and, no matter what the critics might say, this is the perspective
from which the issue must be analyzed. In this respect, the Church continues to
stress that the functions it confers on pastoral agents are not attributive of
status (Instruction, Premiss, p. 5):
. . . “The exercise of
such tasks does not make Pastors of the lay faithful, in fact, a person is not
a minister simply in performing a task, but through sacramental ordination. Only
the Sacrament of Orders gives the ordained minister a particular participation
in the office of Christ, the Shepherd and Head in his Eternal Priesthood.
The task exercised in virtue of supply takes its legitimacy formally and
immediately from the official deputation given by Pastors, as well as from its
concrete exercise under the guidance of ecclesiastical authority”. (39) (footnotes
omitted)
[Emphasis added.]
[45]
With
respect, the designation of “extraordinary minister” given by the Catholic Church
to pastoral agents, mentioned several times by the TCC judge (reasons, paras.
62, 66, 69 and 71), does not indicate any change with respect to the temporary
and supplemental role played by these agents. The word “extraordinary” is not
used in these texts as a superlative (admirable, remarkable, sublime), but in
its ordinary sense (abnormal, unusual) (translated from Le Petit Robert,
French language dictionary). Despite the commitment of time made by pastoral agents,
the fact remains that, according to the Catholic Church, only the pastoral
ministry of priests respects “the constitutive form which [Christ] indelibly
impressed on his Church” (see the last paragraph of the excerpt from the
Instruction cited at paragraph 41, above).
[46]
Moreover,
the qualities required by the faithful to have conferred on them a pastoral
mandate do not point to a finding that the persons elected must have, from the
point of view of the Church, a superior rank in spiritual matters. The formal
requirement is set out at article 13 of the Instruction (p. 16):
Should it
become necessary to provide for “supplementary” assistance in any of the cases
mentioned above, the competent Authority is bound to select lay faithful of
sound doctrine and exemplary moral life. Catholics who do not live worthy lives
or who do not enjoy good reputations or whose family situations do not conform
to the teaching of the Church may not be admitted to the exercise of such
functions. In addition, those chosen should possess that level of formation
necessary for the discharge of the responsibilities entrusted to them.
In
accordance with the norms of particular law, they should perfect their
knowledge particularly by attending, in so far as possible, those formation
courses organized for them by the competent ecclesiastical Authority in the
particular Churches, (112) (in environments other than that of the Seminary, as
this is reserved solely for those preparing for the priest hood). (113) Great
care must be exercised so that these courses conform absolutely to the teaching
of the ecclesiastical magisterium and they must be imbued with a true
spirituality. (footnotes omitted)
[47]
The
reference document adopted by the Bishops of Quebec in 2004 says the following
on this point (reasons, para. 22):
[translation]
Persons are
recognized as suitable when they accept their baptismal faith and testify to it
by the coherence of their life. They have significant experience of our common
ecclesial life, know how to make the connection between faith and life, and are
in complete solidarity with the thought and the mission of the Roman Catholic
Church through the diocesan bishop, notably in matters of doctrine. Moreover,
their state of life must conform to Church teaching, particularly in matters of
marriage.
[48]
There
is no indication that the Catholic Church expects any less from its faithful.
In principle, all of the faithful must live in accordance with their faith and
conform to the rules of the Church. According to the Instruction, it is from
this very pool of believers that the Church recruits its pastoral agents. From
the Church’s perspective, the fact that the chosen faithful must live in
accordance with their faith and adhere to its doctrine does not elevate them to
a superior rank in spiritual matters.
[49]
Moreover,
it is clear that, according to the rules of the Church, only ordained ministers
commit “ad vitam
aut culpam” and are awarded a special status. That pastoral agents do not possess
this status is evident from their temporary mandates, which the Church may
terminate at any time. In my humble opinion, the TCC judge confused status with
function in finding that the respondents possessed the status of “regular
ministers” within the meaning of the Act.
[50]
For
these reasons, I would allow the appeals, set aside the TCC judge’s decision,
and, rendering the judgment that she should have rendered, I would dismiss the
appeal of each of the appellants and because the Crown has not asked for costs,
none shall be awarded.
“Marc Noël”
“I agree.
M. Nadon
J.A.”
“I agree.
J.D.
Denis Pelletier J.A.”
Certified true
translation
Francie Gow, BCL, LLB
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