CLF Intervening for the Right to Religious Privacy Before Supreme Court of Canada

When can the government examine, without a warrant, the contents of our private religious reflections?

That is a central question before the Supreme Court of Canada in Vabuolas et al v Information and Privacy Commissioner for BC, et al, where Christian Legal Fellowship (CLF) has been granted leave to intervene as a friend of the court. Today, CLF filed its factum, which is available here.

CLF is intervening to advocate for a constitutional right that has not yet been fully examined in Canadian case law: the right to privacy in our spiritual relationships.

Without further guidance, the approach of the lower decisions in this case suggests that, under B.C. legislation, the government may examine the contents of internal religious communications whenever (i) they are created as part of a ‘sacred ecclesiastical duty’ between two or more co-religionists, (ii) they refer to another person, and (iii) that other person demands disclosure.

This approach seems to incorrectly assume that only the third party referenced in a religious communication has a privacy interest in it, not the people making it. However, the privacy interests of those making the communications, and the community within which (and for whose benefit) they are made, are also engaged and protected by the Charter.

 
““freedom not to be compelled to share our confidences with others is the very hallmark of a free society.””
— R v Duarte, [1990] 1 SCR 30 at 53, affirmed in R v Mills, [1999] 3 SCR 668 at para 80.
 

As CLF explains in its factum, Canadian and international authorities show that religious freedom has important privacy and associational dimensions. Vabuolas marks the first occasion for the Supreme Court of Canada to make a pronouncement on this interconnected relationship, and the right to practice religion privately in community.

As a friend of the court, CLF draws from established jurisprudence under s. 2(d) (freedom of association) and s. 8 (the right to privacy) of the Canadian Charter to argue that s. 2(a) (freedom of religion) generally protects a religious group’s private, internal, spiritual communications from state examination, unless the government can first demonstrate a specific and compelling reason for disclosure.

CLF’s legal arguments are outlined in detail in our factum. We await a hearing date.

This case marks CLF’s 15th intervention at the Supreme Court of Canada. We are grateful for the opportunity to again advocate for freedom of religion before Canada’s highest Court.

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