Daniel Hofer Appeals Excerpts
File F
During the "Hog Feeder Trial" of 1989, Daniel
Hofer Sr. of Lakeside Colony near Headingly, Manitoba,
challenged the Hutterite elders' right to expel him
together with other members. Jacob Kleinsasser of Crystal
Spring Colony, elder of the Schmeide-Leut group, turned
to the state to enforce the expulsion order. He was quoted
as saying to the judge at that time, "Help us. Free us. It is
destroying the unity," and added that the Hutterites
needed government protection to run their colonies
according to their own rules. He added, "If it is not given,
we are finished." At that trial, the judge ruled against
Daniel Hofer Sr. but Hofer appealed. He lost his first
appeal, with the justices split 2-to-1, but Justice
O'Sullivan's dissenting opinion contains some interesting
thoughts.
(Hofer later won on an appeal to the Supreme Court of
Canada).
Court of Appeal of Manitoba, Suit #524/ 89,
dissenting minority opinion delivered 1/23/91, by Justice
O'Sullivan:
Would "Place Hutterites In A State of Tyranny"
Page 19 ff: "I see nothing in Hutterian belief or
practice which negates the freedom of individual
Hutterites to question the order which are given by
individuals. However, the effect of the decision of the
majority [of justices in the original trial -- ed.] in this case
is, in my opinion, to place Hutterites in a state of bondage.
I have no doubt this is not the intention of my colleagues,
but I regret to say that, in my view, the effect of the
majority decision must be compared to the famous Dred
Scott decision which did so much not only to discredit
American justice but also to bolster the institution of
slavery in North America. In my opinion, the unintended
effect of the majority in this case is to impose bondage on
thousands of our fellow Hutterian citizens.
Tyranny of Kleinsasser Outrivals Pope,
I suppose, subject to considerations of public policy, it
might be possible to establish a corporation in which all
power and all property are concentrated in one man or
group of men. I do not believe Hutterites have attempted
any such corporation or society. Hutterites do not give
their property to elders they give their property to the
Church of Jesus Christ and, in so doing, they are secure in
their possession of the liberty which they believe the
Church espouses. It would indeed be surprising if the
tradition of Anabaptism espoused by the Hutterites
should end in a regime where the tyranny of a Kleinsasser
and other elders should outrival the worst pretensions of
Popes and prelates of times past. I had thought that the
Puritan tradition, so closely linked to Anabaptism, results
in assertions of liberty and even taking the extraordinary
means such as flight and voluntary exile in order to
protect it.
Previous Decision Turns Hutterites Into Zombies
In my opinion, it it not part of the Hutterite covenant
to provide blind obedience to elders or to men of any
kind. Even in a closed society like the Jesuits used to be,
experience has shown the necessity of accepting what is
called Ignatian obedience: the right of the individual to
challenge an order of a superior, even though committed
to obey. But the effect of the majority judgment, in my
opinion, turns Hutterites into zombies who can be expelled
from the Church for daring to question the conduct and
orders of the elders, at least if such questioning is
vigorous and determined. If Hutterites are so bereft of
freedom that they cannot challenge the establishment
without fear of being thrown out without even the shirt
on their backs, then theirs is a condition of slavery. It was
said long ago by Blackstone [in England -- ed] and has
remained a principle enshrined in the common law: "The
spirit of liberty is so deeply implanted in our constitution,
and rooted even in our very soil, that a slave or Negro, the
moment he lands in England, falls under the protection of
the laws, and with regard to all natural rights, becomes 'eo
instanti' a free man." Yet Hutterites who are formed since
childhood to accept the way of life of the Hutterites, are
condemned to a form of slavery worse than the slavery of
the Blacks in the United States. Their only recourse
against the unjust conduct of the elders is to speak out at
the risk of losing their livelihood. That, as I understand it,
is the result of interpretation given by the majority to the
covenants that bind the Hutterites together. And their
wives and children are even in a sorrier state.
Much has been said in this case about freedom of
religion, as if the Charter of Rights protected religious
bodies in their freedom to oppress their members. What
the Charter, as distinguished from the American First
Amendment, protects, is not freedom of a religious group
to conduct itself in whatever manner it pleases, but rather
the freedom of the individual to liberty of conscience and
religion. I see nothing in the Hutterian belief or practices
which militates against liberty of conscience.
Kleinsasser Acted In Collusion With Company
Owner
When Daniel Hofer was confronted by the overseers
of his colony with an allegation that he had been making
hog feeders contrary to a patent belonging to someone
else, he had a problem. He firmly believed that he had
invented the hog feeder in question and that it had to be
owned by the Church and available to all colonies. He
suspected that the Hutterite Church, under the leadership
of senior elder Jacob Kleinsasser, had drifted into
unchristian ways by paticipating in commercial
enterprises never dreamed of by those who had gone
before. The Church was involved in multi-million-dollar
businesses including an insurance corporation, an abattoir,
a scheme for collecting usurious interest for the benefit of
charity, oil wells, and so on. Daniel Hofer Sr. was now
confronted with the prospect of his colony paying out
$10,000 for infringement of a patent which he believed
had been improperly obtained by the Crystal Spring
Colony and transferred to a commercial company what
was threatening other colonies with suits for patent
infringement. His conscience told him he had to protest.
He spoke to the overseers he appealed from a decision to
subject him to Church discipline, appealed to a higher
court of the Church, and he circulated other colonies and
Hutterites with allegations which became increasingly
sharp. But I think the evidence is overwhelming that Mr.
Daniel Hofer Sr. had good cause to question what the
elders were doing. After all, Jacob Kleinsasser assigned the
patent in question to a commercial company while
retaining an interest, not for the Church as a whole but for
his particular colony. And he acted in collusion with the
proprietor of the company in a way what was, to say the
least, questionable....
...There remains to be considered the propriety of a
Hutterian Church suing for property rights in a civil court
of law. As I have said, the colony is not the Church, and all
the property has been given to Christ as His Church of
which He is head. The concept of a colony suing a brother
to recover property is foreign to Hutterite belief and
practice. For the colony to sue for possession of land and
goods would be to assert a right of property which has
been voluntarily given up. Dr. V. Peters, the expert called
by the plaintiffs, was asked, "Would they ever have
recourse to civil courts? Would they sue each other in the
civil courts?" His answer was, "No, I think it is contrary to
their basic doctrine." This view is confirmed in Peter
Rideman (p. 112): 'Since it is said above, all temporal
things are foreign to us and naught is our own, a Christian
can neither strive, quarrel, nor go to law on their account
on the contrary, as one whose heart is turned from the
world and set upon what is divine, he should suffer
wrong; as Paul saith, "Now therefore there is utterly a
fault among you because ye go to the law one with
another. Why do ye not rather take wrong? Why do ye
not suffer yourselves to be defrauded?" Thus since
Christians must not sue one another at law, going to law
and sitting in judgment are completely done away with
among Christians' [end of quote]
Hutterites Cannot Invoke Property Rights
In the case at bar, the plaintiffs are asserting a
property claim which they do not have. It cannot be
emphasized too strongly, in my opinion, that Hutterites
own nothing. They own nothing individually, they own
nothing collectively. All is given to the Church. It is
possible that individual Hutterites have a right of use of
property and that the law of uses remains a part of the
common law of Manitoba. It may be that a Hutterite may
assert rights with respect to property of which he is not
owner, just as Franciscans have been held to have rights
of use over property which has been dedicated entirely to
Christian purposes. But the plaintiffs have no property
and therefore they cannot invoke the jurisdiction of the
courts to enforce property rights.
Hutterites Should 'Rely on The Holy Spirit"
[Regarding the claim, formerly made by Kleinsasser,
that Daniel Hofer Sr. 'had excluded himself,' the judge
concludes:]
...It is possible for a Hutterite who adheres to another
religion to voluntarily separate himself from his brethren.
But there is no evidence in this case that Daniel Hofer Sr.
ceased to be a Hutterite or that he defected in any way
from that Church. On the contrary, his appeal to "a higher
court" showed a disposition to accept the decision of a
broad meeting of ministers provided that he had a fair
hearing of his charges and a fair hearing of his allegation
that he was not validly expelled. Daniel Hofer Sr. remains
of that view. It is to be hoped that the senior elder may
see his way clear to convene a full meeting of the
Schmieden-Leut conference and to hear Daniel out
patiently and in freedom. Then, hopefully, they will rely
on the Holy Spirit in whom they believe to indicate a way
of reconciliation out of the mess which Lakeside Colony
presently is in.
[The judge finished by allowing Daniel Hofer Sr's appeal
against the first "Hog Feeder" trial of 1989, and ordered
that his costs 'be paid out of Hutterite-controlled funds.']
From the Supreme Court of Canada's judgment
setting aside the lower courts' judgment, and allowing
Daniel Hofer's appeal, pps. 33 ff.
B. The Requirements of Natural Justice
The content of the principles of natural justice is
flexible and depends on the circumstances in which the
question arises. However, the most basic requirements are
that of notice, opportunity to make representations, and
an unbiased tribunal.
1. Notice
A member must be given notice of the cause for
which he is to be expelled. It is insufficient merely to give
notice that the conduct of a member is to be considered at
a meeting... ...adequate and timely notice is as important
for two reasons. First, it gives the person who may be
expelled an opportunity to consider his or her position
and either see the error of his or her ways and seek
reconciliation, or prepare to defend himself or herself.
Second, adequate and timely notice allows the members of
the group who are to make the decision an opportunity to
ensure that they will be able to attend the meeting and
contribute to the discussion, or perhaps to ask for an
adjournment if they are unable to attend.
2. Opportunitv to Make Representation
The member who is to be expelled must also be given
an opportunity to respond to the allegations made against
him or her. There is some flexibility in the scope of the
opportunity required, but this issue does not need to be
addressed in this case.
3. An Unbiased Tribunal
As Forbes observes in "Judicial Review of the Private
Decision Maker: The Domestic Tribunal" (1977), 15 U.W..O.
L Rev. 123, at pp. 139-141, the requirement of an
unbiased tribunal in the context of expulsion from a
voluntary association raises a number of puzzling issues.
There is no doubt that an unbiased tribunal is one of the
central requirements of natural justice. However, given
the close relationship amongst members of voluntary
associations, it seems rather likely that members of the
relevant tribunal will have had some previous contact
with the issue in question, and given the structure of a
voluntary association, it is almost inevitable that the
decision makers will have at least an indirect interest in
the question. Furthermore, the procedures set out in the
rules of the association may often require that certain
persons make certain kinds of decisions without allowing
for an alternate procedure in the case of bias.
While the defendants did raise the question of bias, I
would be reluctant to address the issue in any definitive
manner because the appropriate standard in the context
of voluntary associations was not argued by the parties
before us. In light of the conclusions I reach concerning
other issues, it will be unnecessary to discuss the question
of bias.
A final comment from The Hon. Mme. Justice
McLachlin's dissenting opinion: "I share the Court of
Appeal's sensitivity to the apparent inequity that
members who, together with their wives and children,
have contributed to the assets of a colony, find themselves
outside the colony without a share of the assets. But I
agree with the majority in the Court of Appeal that the
issue of property has not been placed before the court.
The appellants sued to remain as residents of the Colony
and as such to retain possession of their share of the
assets of the colony. Had they made a claim for a division
of the assets and judgment for their share, the court might
have been called upon to revisit the question raised in
Hofer v. Hofer [1970] S.C.R. 958, where the majority in this
Court held that persons expelled were obliged to leave the
colony without any share of its property. But the
appellants' only claim at this juncture is for the right to
remain as members of the colony. It is on that basis that
we must decide the case."
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