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A judge in B.C. ruled this week that the elders of two Jehovah’s Witnesses congregations must turn over certain confidential records to the province’s Privacy Commissioner. Those records discuss the “disfellowshipping” (similar to excommunication) of two former congregants. The elders had refused to disclose the records to the former congregants, who brought a complaint to the Privacy Commissioner.

The former congregants used BC’s Personal Information Protection Act (PIPA) to demand access to the congregational records that relate to them. PIPA governs how organizations of all kinds collect, use, and disclose information about any person. Most provinces’ privacy laws, unlike B.C.’s PIPA, do not apply to non-commercial records created by non-profits. PIPA gives a person the right to demand disclosure of information about oneself in the possession of an organization. But that right does not extend to information collected for exclusively personal, artistic, literary, or journalistic purposes.

The Privacy Commissioner ordered the elders to give the documents in question to the Commissioner to determine what, if anything, must be disclosed to the former congregants. The elders appealed the Commissioner’s ruling to the B.C. Supreme Court, arguing that providing these records to the Commissioner would violate their religious practice of keeping records related to disfellowshipping sealed and confidential. The only people who may review such records, they say, are Jehovah’s Witnesses elders – and only if and when a disfellowshipped member seeks to be readmitted as a member.

The congregations’ elders argued in court that requiring them to provide these records to the Commissioner violates their freedom of religion. They also argued that B.C.’s privacy statute, PIPA, violates the Canadian Charter of Rights and Freedoms and that PIPA should not apply to records created for exclusively religious purposes. The Charter guarantees the freedom of religion (section 2a), which is “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” (section 1).

The judge thought it would be going too far to decide that PIPA should not apply to religious records at all. The judge also thought it would not be appropriate to make a sweeping ruling about PIPA’s unconstitutionality as it applies to religious records when he had no records in the evidence before him.

Judges should indeed be careful about declaring laws unconstitutional, but the judge’s reasoning here leaves the elders in a bind. Disclosing the records to anyone, the elders say, would violate their religious beliefs. Not disclosing the records to the Court undermined their case for the law’s unconstitutionality.

The elders did provide the court with sworn affidavits describing, in general terms, the type of content contained in the records in question. But the judge was not satisfied with this. He was wary about the Commissioner or the courts taking an organization’s word about what a record does or does not contain at face value, with no way to verify the truth of the statement.

In fact, the judge thought that even when it comes to literary or journalistic records, records that are exempted from PIPA’s reach, there must be some mechanism to verify whether those records really were made for those purposes only. That mechanism is to give the records to the Commissioner to review.  It is hard to say whether the judge properly interpreted the statute on this point. It may be an issue on appeal if the elders decide to appeal the ruling.

It also seems like a slight oversimplification to say the alternative to ordering the production of records is taking someone’s word at face value. The other party may also provide sworn evidence regarding what they think the record contains and why. They may also cross-examine the party possessing the records on their affidavits. If it seems like the organization is likely hiding something to which PIPA would grant access, then an order to disclose can be made. Of course, it’s easier to find out for sure if the Commissioner or judge can simply see for himself.

In his final decision, the judge did not decide the issue of whether PIPA as a whole should or should not apply to religious records. He only decided the constitutionality of (a) the section of the law giving the Commissioner the power to demand to see the records, and (b) the decision to order the elders to give the records to the Commissioner. The judge ruled that both were constitutional.

The judge agreed that the result of the law and the Commissioner’s decision was to require the elders to violate their religious beliefs. But he thought this was justified in a free and democratic society. The judge reasoned that only by giving the Commissioner the opportunity to review the files could the former members’ right to maintain control of their personal information be balanced with the elders’ freedom of religion.

Should the Commissioner decide, after reviewing the records, that all or part must be further disclosed to the former congregants, the elders could appeal that ruling to a court and – once again – challenge the constitutionality of PIPA. Since no decision has yet been made on whether anything must be disclosed to the former congregants, that would be a new case, albeit one with similar constitutional issues.

ARPA intervened in this case to highlight the institutional and associational aspects of freedom of religion. We argued that this case involved a discrete violation of religious freedom (requiring elders to act contrary to religious belief and practice) over against an ill-defined, non-constitutional personal interest in maintaining control over information about oneself. In such cases, we submit that the constitutionally-protected freedom of religion should be prioritized. You can read our factum here.

Lawyers and judges often say that privacy statutes are “quasi-constitutional,” a point that the former congregants’ lawyers raised in this case. ARPA explained that this is because the first privacy statutes in Canada were designed to limit governments’ ability to record personal information and to ensure that people could find out what information the government had recorded about them. It’s quite another thing to suggest that finding out what somebody else (e.g. an elder, a journalist, or a friend) has written about you is a quasi-constitutional interest or right.

Unfortunately, the judgment given did not engage directly with our arguments. It seems to skip over some of the deeper constitutional issues relating to the proper jurisdiction of the state and the purpose and limits of state oversight of organizations’ record-keeping. This may be due in part to how the elders’ case was framed. They conceded that the law served an important and valid objective in this context but focused their arguments on the resulting violation of the elders’ conscience.

We will find out in the next few weeks whether the elders decide to appeal this ruling to the B.C. Court of Appeal.