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In January 2024, ARPA reported on a B.C. court ruling which concluded that Jehovah’s Witness (JW) elders must turn over certain religious records to the province’s Privacy Commissioner. Those records contained elders’ notes discussing the “disfellowshipping” (similar to excommunication) of two former JW congregants. The elders contended that, as a matter of religious practice, these notes are confidential, kept in a sealed envelope under lock and key, only to be reviewed again by JW elders if a former congregant seeks to be readmitted into the congregation. 

However, the former congregants used BC’s Personal Information Protection Act (PIPA) to demand access to the records that relate to them. PIPA governs how organizations of all kinds collect, use, and disclose information about any person. Unlike B.C.’s PIPA, most provinces’ privacy laws 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 exclusively for 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 to the B.C. Supreme Court, arguing that providing these records to the Commissioner would violate their religious practice. They also argued that PIPA violates the Charter (freedom of religion) and that PIPA should not apply to records created exclusively for religious purposes. 

The Court of Appeal found that PIPA does not infringe the Charter of Rights and Freedoms. Rather, the Court found that PIPA grants discretion to the Commissioner to order (or not) the disclosure of records and that the Commissioner must consider any Charter rights implicated in its decision. Consequently, any potential Charter infringement results from the Commissioner’s order, not the statute itself. In ARPA’s view, this overlooks the burden that results from having records created for exclusively religious purposes subjected to PIPA compliance and Commissioner oversight in the first place – whether or not the Commissioner issues any orders. 

The Court acknowledged that ordering the elders to disclose the records to the Commissioner infringed on their freedom of conscience and religion but also found this was justified. The Court saw it as the only way to advance the “pressing legislative objective” of ensuring people can exercise control over their personal information. 

ARPA intervened in this case to highlight the institutional and associational aspects of freedom of religion. We argued that the supposed justification for limiting religious freedom is an ill-defined, non-constitutional personal interest in maintaining control over information about oneself. Lawyers and judges often say that privacy statutes are “quasi-constitutional,” a point that the former congregants’ lawyers raised. 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 is 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. You can read our factum (legal arguments) here. 

Unfortunately, the Court of Appeal judgment did not directly address our arguments. In fact, its judgment seems to skip over some of the deeper constitutional issues relating to the proper jurisdiction of the state and the purpose of government oversight of organizational record-keeping. On the positive side, the Court did not stray into making comments or affirming arguments devaluing freedom of religion or denying the distinctiveness of religious organizations. They also did not insist that capturing religious records within privacy legislation is essential (which is a policy choice only B.C. has made).  

Rather, the Court simply accepts that PIPA applies to religious records and emphasizes that in the particular facts of this case, it was reasonable to order disclosure of the records to the Commissioner. The Commissioner must then weigh the former congregants’ privacy concerns against the JW elders’ freedom of religion concerns in deciding what information the elders owe the former congregants.   

The JW elders must decide within a few weeks whether to attempt to appeal to the Supreme Court of Canada. Given that the Privacy Commissioner, lower court, and unanimous Court of Appeal agreed on the outcome, it seems unlikely the Supreme Court will hear an appeal. If the case does not proceed to the Supreme Court of Canada, it will return to the Commissioner to decide what happens next. 

Should the Commissioner decide, after reviewing the elders’ notes, that all or part of the information must be disclosed to the former congregants, the elders could appeal that decision to a court. That would be a new case, albeit one with similar constitutional issues.