A landmark decision by the B.C. Court of Appeal that upheld privacy rights over the religious freedom of two Jehovah's Witnesses congregations could be heading to the Supreme Court of Canada.
The Appeal Court on Friday, March 21, that the province's Personal Information Protection Act (PIPA) did not infringe on the religious freedom rights of Jehovah's Witnesses congregations in Coldstream and Grand Forks.
In 2020, two former Jehovah's Witnesses, Gabriel Liberty Wall and Gregory Westgarde, requested access to their personal information from their former congregations in Coldstream and Grand Forks, seeking all records that included their personal information. The congregations refused to release the documents initially to Wall and Westgarde, and later to the Office of the Information and Privacy Commissioner (OIPC) which had ordered the documents so it could determine if they should be handed to the two former congregation members.
The congregations argued the requested documents contained confidential religious communications and they therefore should not be compelled to release them. They argued PIPA was unconstitutional in that it infringed on their Charter right of religious freedom.
The Appeal Court ruled that PIPA does not violate the Charter, rejecting the Jehovah's Witnesses' claim that a blanket exemption was constitutionally required for all information collected for a religious purpose. The court upheld a chamber's judge ruling to compel the congregations to produce the documents, saying the Privacy Commissioner and adjudicator can decide constitutional claims on a case-by-case basis.
Jayden MacEwan is a lawyer for Ontario-based W. Glen How and Associates LLP and is one of the lead legal representatives for the appellants 鈥� Jehovah's Witnesses elders John Fabuolas and Paul Sidhu, the Coldstream and Grand Forks congregations, and the Watch Tower Bible and Tract Society of Canada. Speaking to Black Press Media Saturday, MacEwan said lawyers for the appellants are currently reviewing the Appeal Court's decision with an eye to the Supreme Court of Canada.
"We just received the decision yesterday, it's a lengthy decision, 123 paragraphs. There are many constitutional and administrative law complexities that are tied to the case, and I can say we will not only be reviewing the decision but reviewing it with a possible appeal to the Supreme Court of Canada in mind," MacEwan said.
The question that remains at the heart of the case is whether "state intrusion" under PIPA into a minister's private notes is justified under constitutional law, MacEwan said.
"For us, what it boils down to is nobody wants their personal private notes to be forcefully taken by the state," the lawyer said. "What we'll be particularly paying attention to as we review this decision from the Court of Appeal is, has the Court of Appeal applied the Charter consistent with Supreme Court of Canada precedent?"
MacEwan acknowledged that the Court of Appeal reviewed a wide range of jurisprudence and applied it to the case, but "the question on our minds" is whether it did so in a way that's in line with the precedent set by the country's highest court.
"Of course, we argued that such intrusion into a minister's private notes is not justified under the Charter, so that's what we're going to be paying attention to," MacEwan said.
The lawyer said the problem the appellants highlighted "lies with the statute itself," that being PIPA, "and that there's no accommodation, no consideration given to an individual's religious freedom rights ... There's all sorts of exemptions that protect other rights and interests, but nothing that protects an individual's religious freedom rights."
MacEwan acknowledged the wide-reaching implications of the case which, as it stands, is being championed by some as a victory for the privacy rights of individuals, though from the appellants' point of view, this comes at the cost of state overreach.
"Everyone should be interested in the outcome of this decision," he said. "It goes back to who wants to have their personal private notes to be forcibly taken by the state?"
The appellants have 60 days from Friday to seek an appeal with the Supreme Court of Canada.
After the Appeal Court's ruling came down on Friday, Carl Pelletier, a national spokesperson for Jehovah's Witnesses in Canada, expressed disappointment in the decision.
"Jehovah's Witnesses are committed to protecting and respecting privacy," Pelletier said, adding PIPA "fails to provide any exemption" for congregation elders or religious ministers.
"Requiring elders to disclose confidential information associated with their pastoral care seriously interferes with their religious beliefs and practice protected by the Canadian Charter of Rights and Freedoms," Pelletier said.
