CLF Intervenes at the Supreme Court for the Right to Religious Privacy

 
“Respect for individual privacy is an essential component of what it means to be ‘free’.”
— R v O’Connor, [1995] 4 SCR 411 at para 113
 

Last week, Christian Legal Fellowship (CLF) intervened before the Supreme Court of Canada in Vabuolas et al v Information and Privacy Commissioner for BC, et al, as previously reported.

A central issue raised by the appeal is when the government may examine, without a warrant, the private spiritual communications of a religious community. Here, disfellowshipped members of Jehovah’s Witness congregations requested access to information contained in church elders’ notes. The congregations refused on the basis that to do so would mean disclosing their own confidential religious deliberations. The B.C. Privacy Commissioner ordered the documents to be handed over to the Commissioner for review, invoking the B.C. Personal Information Protection Act (PIPA). The congregations challenged this decision.

CLF intervened before the Supreme Court to speak to the relationship between privacy and collective religious exercise, and to show how associational privacy is a core element of the Charter’s guarantee of religious freedom under section 2(a). To read those legal arguments in detail, see CLF’s factum and condensed book. The hearing webcast may also be viewed here, with CLF’s submissions beginning at 2:27:53.

advocating for the right to religious privacy

CLF submitted that the Charter protects religious communities’ private spiritual communications from state examination, unless the state can first demonstrate a specific and compelling reason for their forced disclosure, as required by section 1 of the Charter.

This principle is supported by Supreme Court jurisprudence which recognizes that “privacy concerns are at their strongest where aspects of one’s individual identity are at stake, such as in the context of information ‘about one’s … religious opinions’” (R v Mills, [1999] 3 SCR 668 at para 80), and which decries “state-sponsored inquiries into any person’s religion” (Edwards Books).

CLF emphasized to the Court that Canadian and international law recognizes religion under s. 2(a) as being about not only religious beliefs, but also religious relationships and communities. Privacy, in turn, is necessary to protect the integrity and vitality of these relationships and communities.

These interests are engaged when church members and elders come together, for example, to prayerfully discern the answer to a religious question, engaging a group’s most personal and private beliefs.

determining privacy protection by the context of communications

CLF explained that privacy and privilege attach not to the subject matter of a discussion, but to the relationship, purpose, and expectation of confidence surrounding the communication. Therefore, privacy protection is determined by the context of communications, and not necessarily their specific content. This distinction matters for two reasons:

First, it underscores that privacy protects “a particular relationship from state intrusion” (Mills at para 26), being concerned with the nature the relationship between those who are sharing private communications and not necessarily third parties who might be referred to in them.

Secondly, privacy protection cannot depend on the state first examining the contents of religious communications to determine whether they are protected – that would invert the process, and defeat the very purpose of the Charter’s protection, which is to shield intimate communications from forced disclosure in the first place. This is especially true in a context where “privacy concerns are at their strongest” (R v Mills, [1999] 3 SCR 668 at para 80 (citations omitted)).

Contrary to others’ suggestion that the state must examine confidential religious communications line-by-line in order to determine whether they are in fact protected, CLF’s Derek Ross explained:

“The Charter is not only concerned with what the state might do with private information after it is disclosed, but its very disclosure to the state to begin with, and the chilling effect it creates. If people live under the threat that anything they say in their private relationships can one day be examined by the state, that will work upstream to change how we interact with others. It will undermine the confidence necessary for meaningful religious and associational life. That chilling effect is why privacy exists as a preventative protection.”
— Derek Ross, CLF Executive Director and General Counsel

As CLF explained in its written submissions, “It would be self-defeating to allow the state to inspect private information to determine whether it was protected from state inspection in the first place. The Charter applies to the state’s acquisition and examination of information, not just its ultimate use, and to proactively protect relationships of trust, including religious ones.”

The Supreme Court of Canada has reserved its judgment in this matter.

CLF is grateful for the opportunity to advocate for freedom of religion before Canada’s highest Court.

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