C37: OF JUDICIAL PROCEEDINGS

Canon: OF JUDICIAL PROCEEDINGS

Chapter: C37 ECCLESIASTICAL TRIBUNALS and THE DISCIPLINE OF MINISTERS OF THE CHURCH

Offences

1. The following are the charges or accusations on which any Bishop, priest, or deacon of this Province may be presented for trial:
(a) A sexual assault (read with Resolution of Permanent Force
(No. 6);
(b) sexual harassment (read with Resolution of Permanent Force
(No. 6);
(c) assault or threat of assault;
(d) sexual immorality;
(e) heresy or false doctrine;
(f) schism, that is to say, acceptance of membership in a religious
body not in communion with the Church of this Province;
(g) apostasy from the Christian faith;
(h) conduct giving just cause for scandal or offence; including
without limitation, offensive or abusive language, and any inappropriate relationship or activity of whatever nature;
(i) fraudulent, corrupt or dishonest conduct;
(j) negligence or recklessness in the management or control of
church property or funds (including responsibility for the abuse of discretionary funds or breach of other fiduciary duties;
(k) misappropriation or misuse of church property or funds;
(l) violation of the Constitution or Canons of the Church of this
Province or of Resolution of Permanent Force No 5;
(m) conduct amounting to a breach or breaches of the trust
relationship between the accused and any Bishop (including the Metropolitan) or any other cleric or body with whom a trust relationship should exist for any reason,
(n) negligent or wilful contravention of, or negligent or wilful
failure to fulfil responsibilities or functions under, the Constitution or Canons of the Church, the Acts, rules or regulations, either of the Provincial Synod, or of the Diocesan Synod of the Diocese in which the cleric holds office, or of the office itself, or acts or omissions in conflict with his or her Oaths or Declarations on taking office;
(o) refusal to obey a reasonable and lawful instruction from the
Metropolitan, Bishop, Dean, Archdeacon, or any other person authorised by any of the a foregoing or by any provision of the Constitution or Canons to give such an instruction;
(p) neglect of the duties of office;
(q) failure to perform required clerical duties adequately or
competently
(r) performing church related functions while under the
influence of alcohol or any drug other than a prescribed
medication;
(s) breach of confidentiality of whatever nature;
(t) unauthorised and unexplained absence over extended
periods (4 days and more) or repeated more than 3 times over 60 days; and
(u) engaging in conduct or making false statements bringing the
Church into disrepute
(v) promoting dissension or disaffection in the Church;
(w) maligning Bishops or others in ecclesiastical authority, or
promoting dissension, division or disaffection;
(x) any matter presented for trial by the Bishop or appropriate
officer under Step 5 of Procedure B of Act XV of Provincial
Synod.

Definition of conclusive conviction

2. Any charges of heresy or false doctrine, in order to be relevant,
must aver that the Accused has taught, published, or otherwise publicly promulgated, some doctrine or opinion repugnant to or at variance with the Faith and Doctrine of the Church as contained in the Creeds, the Thirty-Nine Articles, and the Book of Common Prayer and Administration of the Sacraments and other rites and ceremonies of the Church, according to the use of the Church of England, and the form and manner of making, ordaining and consecrating of Bishops, priests and deacons, and must specify the particular passages of these Standards and Formularies to which the said charge refers as well as the particular statements of the charge which may be the subject thereof.

Judicial Proceedings

Judicial Proceedings

3. For the purpose of any proceedings under this Canon, in which the Accused is charged with any of the above offences, proof that the Accused has been convicted of such offence in any Criminal Court, and that such conviction has become conclusive, shall be sufficient proof that the Accused has committed such crime; saving to the Accused the right of submitting fresh evidence in support of his innocence. Save as aforesaid, a conviction shall be deemed to become conclusive for the purposes of this Canon:
(a) when there has been any appeal, upon the date on which the appeal is dismissed or abandoned, or the proceedings on appeal are finally concluded, and

(b) if there has been no such appeal, upon the expiration of the time limit for such appeal, or, when no time is so limited, upon the expiration of two months from the date of conviction.
But, if varied on appeal, the conviction shall be conclusive only as so varied, and, so far as it is reversed on appeal, shall cease to be of any effect.

Limitation to five years

4. (a) No original proceedings shall be instituted before any
Tribunal of this Province unless
(i) the offence on which the Accused is charged shall have been committed within a period of five years prior to the date of commencement of such proceedings, or
(ii) if the commission was initially unknown to the Complainant proceedings are instituted within five years of the date when the Complainant knew or should have known of the commission.
(b) If the Complainant was a minor at the time of commission, the five year period in each case in paragraph (a) of this section shall commence on the later of the date the Complainant attains majority or he or she knew or should have known of the commission of the offence.
(c) Special leave for an extension of such period of five years may, on good cause shown, be granted in the
Metropolitan�s discretion.
(d) Should the charge alleged be founded upon an order or judgement of a competent Civil Court or sentence of a Criminal Court having jurisdiction, then such proceedings shall be commenced within a period of six months from the date when such order, judgement or sentence became conclusive as defined in section 3 of this Canon.

Date of commencement

5. The date of the commencement of proceedings shall be deemed to be the date when the Articles of Presentment are filed with the Metropolitan or Bishop as the case may be. In the case of a complaint being lodged in terms of section 1(a) or (b), proceedings may be instituted at any time.

How charges are to be laid

6. All charges shall be made in writing signed by the presenters, wherein shall be specified all the particulars of time, place, and circumstances, alleged by them, intimation being made of the name and address of some person to whom all necessary communications in the cause shall be made, as the agent of the presenters (see section 1 of Canon 38 Of Proceedings against Bishops and section 1 of Canon 39 Of Proceedings against Ministers).

Articles of Presentment

7. In respect of charges under either Canon 38 or Canon 39 the Charge or Accusation shall be entitled �Articles of Presentment�.

Judgement to be accepted

8. With the Articles of Presentment, the presenters shall transmit
to the Metropolitan or Bishop, as the case may be, a minute of
reference and agreement, to the effect that the judgement of
the Tribunal of this Church in all matters contained in the
Articles of Presentment shall be held to be final in the cause,
saving such rights of appeal as may be allowed by the Laws of
this Church.

Counsel

9. Both the Accused and the presenters may have the aid of Counsel or representative at their own expense.

Conditions of testimony

10. No testimony shall be received at the trial except from
witnesses who shall, before giving their evidence, make an
affirmative answer to the following question put by the
President: �Do you promise, as in the presence of Almighty
God, that you will speak the truth, the whole truth, and
nothing but the truth, whether in the declaration which you
shall make or in the answers which you are about to give?�

Testimony on Commission

11. If it be necessary to make the testimony of an absent witness or witnesses, such testimony shall be taken in the form and manner above provided, by a Commissioner or Commissioners to be appointed by the President for that purpose, and the evidence pro and con shall be reduced to writing and forwarded to the Tribunal, which evidence shall be read and used at the trial: provided, however, that no application for the appointment of such Commissioner or Commissioners shall be made by either party to the President of the Tribunal, except after notice in writing, given by the one to the other, of his or their intention so to apply.

Non-appearance of the accused

12. If the Accused do not appear after citation as in these Canons provided, and no sufficient reason, in the opinion of the Tribunal, is assigned for his absence, the President shall proceed with the trial and pronounce such sentence as the case may require.

Proceedings to be public

13. The proceedings shall be public, unless the President of the Tribunal shall deem it preferable, on the ground of public morals, that they should, in whole or in part, be private.

Resignation no Bar

14. In every case where a charge has been brought against any person, being a Bishop or Cleric of this Province, if such person shall tender his resignation to the Metropolitan or Bishop, as the case may be, either before or during the trial; and if the Metropolitan or Bishop, in the exercise of his discretion, shall see fit to accept the resignation so tendered, nevertheless the person Accused shall not be exempted by such resignation from the judicial inquiry into the truth of the charge made against him, nor from any sentence which may be imposed: provided proceedings be commenced within a period not exceeding six months from the acceptance of the resignation.

Proceedings upon admission of guilt

15. If at any period in the course of the proceedings the Accused shall in writing make an admission of guilt on the charge preferred against him, and offer to submit to whatever sentence may be pronounced, the Tribunal may then at once proceed to judgement, without hearing further evidence.

Review

16. Whenever a sentence has been passed by any Tribunal, it shall be competent to the President of such Tribunal, within thirty days after sentence shall have been passed, should any new facts, which might have a bearing on the judgement, come to his knowledge, to order a re-hearing of the case.

Should such facts come to his knowledge after the period of
thirty days, the President shall then refer the matter to the
Diocesan Bishops, who shall have power to annul or modify
any such decision.

Records to be preserved

17. Every Tribunal of this Province shall keep a full record of its proceedings, including the Articles of Presentment, the names of the presenters and the Accused, the evidence and all retractions together with the judgement and sentence of the Tribunal or Court The record shall be preserved in the Registry of the Tribunal or Court.

Expenses

18. Expenses involved in summoning and holding any Court of first instance shall be paid from the funds of the Diocese concerned or of the Province (as the case may be); but the expenses of preparing the case for trial shall be borne by the parties to the suit. Expenses incurred in summoning and holding the Provincial Tribunal of Appeal shall be defrayed from the funds of the Diocese concerned unless the Tribunal shall decide that the expenses or some part of them should be paid by the Appellant.