Religious organizations should be subject to the privacy act: Our arguments at the BC Supreme Court

The Supreme Court of British Columbia is currently hearing arguments over whether religious organizations should be exempt from the province's privacy laws.

Gregory Westgarde and Gabriel-Liberty Wall are former members of the Jehovah's Witness congregations in Coldstream and Grandforks. Both had requested any records their congregations had on them, as they are entitled to under the provincial Personal Information Protection Act.

The congregations argued that these records include religious deliberations that should be exempt from disclosure requirements, in the same way solicitor-client privilege is exempt. The Office of the Information and Privacy Commissioner ultimately found that while disclosure of these records would impugn the congregation's religious freedom, it was justifiable and the records should be turned over to the office for review prior to disclosure to Westgarde and Wall.

The two congregations petitioned the Supreme Court of BC to review that finding. The BC Humanist Association was granted leave to intervene in the case.

In our factum, we argue three points:

  1. The courts have found there are reasonable limits to religious freedom in criminal investigations. Further, the privacy commissioner's process allows for a higher degree of due process to concerns about religious freedom than many criminal investigations.

    Even after the investigative stage, however, the confidentiality of a religious communication it not absolute. It can give way to an important state interest.

  2. Additional scrutiny is needed when religious freedom claims are grounded in secrecy. Without access to the records in question, the court cannot assess whether the congregation's position is motivated by a sincerely-held belief.
  3. The court should consider the religious freedom of Westgarde and Wall to freely dissociate with their former congregations, which includes knowing what records are being held on them.
    There may also be a broader public interest in religious records - as demonstrated by the records obtained by the Truth and Reconciliation Commission of Canada or the Royal Commission into Institutional Responses to Child Sexual Abuses in Australia.

    There is nothing in the record before this Court to suggest that the records at issue contain anything improper. It is possible, perhaps even probable, that the records are quite banal. However, because the records themselves are not available for review, both the Commissioner and this Court are left to speculate as to their contents.

Arguments in the case are being heard at the law courts in Vancouver from September 27-29, with the BCHA expecting to make its oral arguments in Court on Friday. The BCHA is being represented by Wes McMillan and John Trueman of Allen/McMillan Litigation Counsel.

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