Brown v Les Curé et Marguilliers de l'Œuvre et Fabrique de Notre Dame de Montréal, better known as the Guibord case, was a decision in 1874 by the Judicial Committee of the Privy Council in an early Canadian legal dispute over the relationship between church and state.
The question was whether the church officials of the Parish of Montréal could refuse to bury a deceased member of the Church because of his political beliefs. Joseph Guibord had been a member of the Institut Canadien de Montréal, an association dedicated to the principles of liberalism. The Institut was at odds with the Roman Catholic church, at that time very powerful in Quebec and very conservative. When he died, the church officials of the Parish of Montréal refused to allow his widow, Henriette Brown, to have his remains buried in the section of the Côte des Neiges Cemetery reserved for Roman Catholics.
Brown brought a petition in the Quebec courts to require the church officials to allow her to bury her husband in the cemetery. The case was ultimately decided by the Judicial Committee, at that time the court of last resort for Canada within the British Empire. The Judicial Committee ruled that the church officials had to allow Guibord's remains to be buried in the Roman Catholic section of the cemetery, although without full religious rites. The case caused great political and religious controversy in Quebec.
Background
The case centred on a man named Joseph Guibord, a member of the Institut Canadien. The Institut was a liberal association with a public library and debating room for literary and scientific discussions. The views of its members, who tended to support the Rouges in Quebec politics, brought them into conflict with the Roman Catholic Church, which at that time had significant influence in Quebec society and with the Quebec government. Eventually, the Bishop of Montreal, Ignace Bourget, issued a pastoral letter forbidding membership in the Institut, and stating that no absolution was possible for member, "même à l'article de la mort."
Guibord died suddenly in 1869. His widow, Henriette Brown, sought to have him buried in the Côte des Neiges Cemetery, at that time the only cemetery for Roman Catholics in Montreal. The Church refused to permit the burial, except in the portion of the cemetery reserved for non-Roman Catholics and unbaptised infants, and without religious rites. Brown was willing to forego the religious ceremony, but insisted that her husband be buried in the Roman Catholic portion of the cemetery. The church officials refused.pp. 159-160. (L.R.) Brown and her supporters argued that the Church's decision contradicted its role under the civil law to give burial, but the Church argued it would permit the civil burial, and that Guibord not being buried in holy ground was a question of religious freedom.
After two attempts to have Guibord buried in the Côte-des-Neiges Cemetery, his remains were temporarily lodged in the neighbouring Mount Royal cemetery, a Protestant cemetery.
Decisions of the Quebec Courts
Superior Court 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.pp. 161-162. (L.R.) 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.pp. 162-163. (L.R.) 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.pp. 166-167 (L.R.).
Court of Review 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.pp. 168-170 (L.R.).
Court of Queen's Bench
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.Code of Civil Procedure of Lower Canada, art. 176. 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.p. 170 (L.R.).
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.pp. 170-171 (L.R.).
The Court ordered Brown to pay the church officials' court costs.
Appeal to the Judicial Committee
Standing of the Institut to Appeal following Brown's Death 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.pp. 171-172 (L.R.).
Decision: Appeal Allowed 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.
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.pp. 192, 201 (L.R.), pp. 1-2, 11 (UKPC).
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.pp. 204-209 (L.R.), pp. 14-18 (UKPC).