British Columbia's privacy laws and the Charter's protection of religious freedom are both fundamentally based on principles of consent and freedom from coercion, we argued in our submissions to the BC Court of Appeal yesterday.
The Court is considering an appeal of a BC Supreme Court decision earlier this year that required the Jehovah's Witnesses congregations in Grand Forks and Coldstream to turn over records on two former members to the province's privacy commissioner for review. The ex-congregants (the applicants) had requested their records under the province's Personal Information Protection Act (PIPA). The Jehovah's Witnesses argued disclosing some of these records would violate their freedom of religion. The BCHA intervened in the Supreme Court hearings arguing that such claims should be scrutinized carefully and that the court should consider the rights of the applicants too.
In our factum for the Court of Appeal, we argue that both religious freedom and the privacy rights set out in PIPA are founded upon principles of consent and autonomy; that individuals, not organizations, are the primary vessel for religious rights; and that in balancing rights, the court should consider the applicant's religious freedom to dissociate.
As our lawyers, John Trueman and Chloe Trudel, conclude:
Like all Canadians, the records applicants undoubtedly enjoy the freedom to disassociate with organized religion — to withdraw their consent to participate in religious practices and to end their membership in a religious congregation. But that freedom is undermined if the records applicants are permanently tied to the appellants through secret files, the contents of which are withheld from them. This result would be the antithesis of “the absence of coercion or constraint” which section 2(a) of the Charter is supposed to guarantee.
Section 2(a) of the Charter ought not to become a sword by which religious organizations can exercise power over non-members, or former members, of their congregations through control over personal information. To do so would undermine the consent-based foundation of both religious freedom and privacy rights. It would expand the rights of religious organizations beyond what the Supreme Court of Canada has recognized to date. And it would subordinate the s. 2(a) claims of individuals who have exercised their right to leave organized religion to the claims of religious organizations.
The case is set to be heard in court on October 29, 2024.
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