B.C.’s Court of Appeal has rejected an argument made by two congregations of the Jehovah's Witnesses that releasing former church members’ records would breach religious freedoms under the Charter.
It‘s a decision that the church called disappointing, saying it will interfere with pastoral care and religious beliefs.
The case began in 2020 when Gabriel Liberty Wall and Gregory Westgarde each sought disclosure from their former congregations of all records that included their personal information. They sought the information using B.C.’s Personal Information Protection Act (PIPA).
To that end, the Office of the Information and Privacy Commissioner (OIPC) issued a 2022 order to produce the requested documents to determine what could be released.
The congregations, however, objected and sought a judicial review. The judicial review failed and led the case to the appeal court. That court upheld the Supreme Court's decision.
"The decision to issue the [2022] order was reasonable," wrote Justice Karen Horsman in .
The church had argued the legislation itself was flawed, an argument three appeal court justices unanimously rejected.
What happened?
Wall was a member of the Grand Forks congregation while Westgarde was in Coldstream.
Some documents they requested were produced but others were refused.
So, OIPC director of adjudication Elizabeth Barker, on June 20, 2022, so they could be examined to determine if the Wall and Westgarde could have them.
Barker said PIPA did infringe the Charter but that such an infringement was justified under Section 1 of the Charter which allows reasonable infringements “as can be demonstrably justified in a free and democratic society.”
However, the elders of the congregations refused, arguing that disclosure of confidential religious notes would be contrary to their religious beliefs.
They petitioned B.C. Supreme Court to quash the order. But that court refused.
“I conclude that the production order will allow for a review of the disputed records to determine whether they contain any of the applicants’ personal information and if so, whether or not they are nevertheless exempt from disclosure,” Justice Steven Wilson said in his .
Still, Wilson was alive to the assertion that the groups of elders who meet to determine membership must be able to discuss matters in confidence and without fear of having their confidential discussions disclosed.
“The petitioners are concerned that if the elders’ confidential communications are disclosed, they may be further disseminated for the purposes of mocking either the petitioners or elders, causing unnecessary embarrassment,” Wilson said.
The appeal court judges ruled Barker erred in finding PIPA sections infringed the Charter.
“Properly interpreted, these provisions empower the commissioner to consider the (congregations’) Charter rights in deciding whether to order production of records for the commissioner’s review,” Horsman wrote.
Horsman said if the production order unjustifiably infringed the Charter rights, the source of that infringement is the order itself and not the provisions of PIPA.
“In this case, the production order proportionately balanced the (congregations’) Charter rights with statutory objectives, and therefore the decision to issue the order was reasonable,” the court said.
