Legal update on religious freedom case (Vabuolos et al v. British Columbia)
British Columbia’s highest court recently held a hearing on an important but complex religious freedom case. Vabuolos et al v. British Columbia is a case to decide whether church meeting minutes and other religious records will be exempt from unnecessary government oversight. ARPA participated in the hearing as an intervener, also known as a “friend of the court,” to present submissions to the court about the institutional aspects of religious freedom. The issue in the case is whether a former congregant can demand access to information about himself that is held by a religious body.
By order of the Privacy Commissioner
The appeal involves a dispute that began when BC’s Privacy Commissioner ordered the elders of a Jehovah’s Witnesses congregation to hand over records related to the disfellowshipping (excommunication) of former congregants. The elders refused to comply, challenged the order in court, and challenged the legislation on which the order was based, namely BC’s Personal Information Protection Act (PIPA).
To be clear, the Commissioner had not ordered the elders to disclose the records to the former congregants. Rather, he ordered the elders to disclose the records in question to the Commissioner to determine what, if anything, must be disclosed to the former congregants. PIPA only requires disclosing information about a person who requests information about himself, while protecting information about others (e.g. by redacting information about other people if it appears in the same record).
The elders appealed the Commissioner’s order to the B.C. Supreme Court, arguing that providing the 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 then only if a disfellowshipped member seeks to be readmitted as a member.
BC’s Personal Information Protection Act
PIPA governs how organizations of all kinds may collect, use, and share information about anyone. PIPA allows a person to demand disclosure of information about himself in the possession of an organization and gives him a right to be told how the organization has used that information or with whom it has shared it. Other provinces’ privacy laws, unlike B.C.’s PIPA, do not apply to non-commercial records created by non-profits.
The elders contend that PIPA should not apply to records that are created for exclusively religious purposes, just as it does not apply to records created for exclusively personal, artistic, literary, or journalistic purposes.
The lower court ruling
The elders lost at the B.C. Supreme Court earlier this year. The judge thought it would be going too far to exclude religious records from PIPA. 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 evidence before him. The judge agreed with the elders that the legislation and the Commissioner’s order infringed their religious freedom, but he thought this was justified. He reasoned that only by allowing the Commissioner to review the records could the Commissioner properly balance the former members’ right to maintain control of their personal information with the elders’ freedom of religion. ARPA commented on the lower court’s ruling in an earlier article.
The Court of Appeal
At the Court of Appeal, the appellants (elders) urged the Court to rule that personal information contained in records created for exclusively religious purposes should be exempt from PIPA – just as PIPA excludes records for journalistic, literary, artistic, and personal purposes.
The Court had questions about the possible implications of that. Could a church withhold from someone a record of that person’s wedding in the church? Would that be a record created for exclusively religious purposes? Also, is it possible that some records created for a religious purpose would not be protected by freedom of religion, meaning that excluding religious records would be a broader remedy than necessary to protect religious freedom? The appellants argued that all such records would be protected by freedom of religion and should be excluded from PIPA.
The Court asked the lawyers for both sides whether the problem was really with the law, or simply with how the Commissioner exercised his discretion under the law. Rather than invalidate the law, wouldn’t a less radical solution be for the Commissioner not to order disclosure of the records – even to himself only – in a case such as this? The problem with this, according to the appellants, is that PIPA seems to require the disclosure of the records to the Commissioner. And that’s how the Commissioner interpreted it.
And so the Court also asked whether, rather than a broad exemption for religious records, the solution might be for the legislature to amend the section of the law that gives the Commissioner the power to order the production of records, to make it explicit that such an order should not be made if it would unjustifiably infringe a Charter right. In other words, the legislature could make the Commissioner account for each freedom of religion, expression, or association claim on a case-by-case basis. BC’s Attorney General argued that the Commissioner already has this discretion.
To summarize, the appellants say the statute requires disclosure and violates their religious freedom. But the Attorney General says it’s open to the Commissioner not to order disclosure where doing so would unduly infringe a Charter right. The Attorney General also contended that the Commissioner’s order did not unduly infringe the Charter.
The Attorney General emphasized the importance of the right to control information about oneself and its connection with personal autonomy and dignity. In response, ARPA pointed out that this right simply does not exist in many contexts, such as when someone records information about you for literary, journalistic, artistic, or personal purposes. This right also does not exist vis-à-vis courts or administrative tribunals or legislative officers carrying out their duties. Also, when it comes to controlling information about yourself contained in a religious record of the sort in this case, it is only a right in BC, and only for the past 20 years.
While the appellant elders believe that they may not, as a matter of religious obligation, disclose these records, ARPA pointed out that even if a religious official did not have such a clear-cut religious obligation, it could still be a burden on a religious institution to be subject to PIPA. Even if religious freedom claims can be adjudicated before the Commissioner on a case-by-case basis, it still means that records created for exclusively religious purposes will be subject to the regulation and oversight of PIPA and the Commissioner. This could mean, for example, that a church would not be able to share personal information about a (former) member without that person’s consent. Whereas a request to a journalist to disclose their research notes can be ignored, a request for a record of religious officials’ deliberations would have to be satisfied or adjudicated before the Commissioner.
The Court of Appeal seemed to understand the elders’ dilemma and to be searching for a suitable legal solution. The least intrusive solution would be for the Court not to invalidate any part of PIPA, but simply to find that in these circumstances, the disclosure order was not justified. The issue is whether the statute can reasonably be interpreted that way, since it appears to make disclosure mandatory. It’s a challenging case for the Court and counsel, and the Justices were obviously thinking through the issues carefully.
One of ARPA’s concerns is that the Court might hold the government to too low a standard in allowing its interference with freedom of religion and association. The rhetoric of personal autonomy was prominent in parts of the case being made against the appellants. We will continue to keep you updated on developments in this case and, as in all cases, we can ask God to help the Justices reach a just and wise decision.
