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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