A B.C. Supreme Court judge has declined to quash an order that two Jehovah’s Witnesses congregations hand over two former members’ files to Office of the Information and Privacy Commissioner (OIPC) to determine if they can be released to those men.
In 2020, Gabriel Liberty Wall and Gregory Westgarde each sought disclosure from their former congregations of all records that included their personal information.
Wall was a member of the Grand Forks congregation while Westgarde was in Coldstream.
Some documents were produced but others were refused.
So, OIPC director of adjudication Elizabeth Barker, on June 20, 2020, ordered production of the documents so they could be examined to determine if the men could have them.
However, the elders of the congregations refused, arguing that disclosure of confidential religious notes would be contrary to their religious beliefs. They petitioned the court to quash the order. (Jehovah's Witnesses do not have paid clergy. Instead, each congregation has a group of voluntary, appointed elders who are responsible for taking the spiritual lead.)
Those elders, John Vabuolas and Paul Sidhu, and the Grand Forks Congregation of Jehovah’s Witnesses, Coldstream Congregation of Jehovah’s Witnesses, and the Watchtower Bible and Tract Society of Canada (together the petitioners) all argued that they should not be compelled to turn over the records.
They said B.C.’s Protection of Information and Privacy Act (PIPA) infringes on their religious freedoms that are protected under the Canadian Charter of Rights and Freedoms.
“I conclude that the production order will allow for a review of the disputed records to determine whether they contain any of the applicants’ personal information and if so, whether or not they are nevertheless exempt from disclosure,” Justice Steven Wilson said in his Jan. 8 ruling.
Still, Wilson was alive to the assertion that the groups of elders who meet to determine membership must be able to discuss matters in confidence and without fear of having their confidential discussions disclosed.
“The petitioners are concerned that if the elders’ confidential communications are disclosed, they may be further disseminated for the purposes of mocking either the petitioners or elders, causing unnecessary embarrassment,” Wilson said.
The petitioners had argued the files contain details of congregation elders’ confidential ecclesiastical discussions, which address fundamentally important questions such as membership.
And those, they claimed, are subject to charter religious protection.
They suggested modifying PIPA to provide an exemption for religious purposes to bring the act in line with the charter.
‘Sacred ecclesiastical duty'
The church argued at the OIPC that PIPA did not apply to it, an assertion with which Barker disagreed.
While Barker found measures in PIPA do infringe freedom of religion, that infringement is justifiable under the Canadian Charter of Rights and Freedoms.
She said the congregations did not establish that PIPA infringes freedom of expression, freedom of association or unreasonable search and seizure under the charter.
Much of the issues hinge around records made by church elders after members left the church.
Several years after Westgarde left the Jehovah’s Witnesses, he requested the Grand Forks congregation provide him a copy of all records that contain information about him.
Wall did the same a decade later when leaving the Coldstream congregation. The church initially told him it did not have any of his personal information, but later revised its response to say that his personal information was in a record that "constitutes a confidential religious communication, privileged under the common law and charter."
Barker, however, said the congregations had not produced the disputed records for her to review, claiming disclosure to anyone would violate the charter rights and freedoms of all the elders in the two congregations and all other elders and B.C. Jehovah’s Witnesses.
"The respondents' uncontradicted evidence is that the elders are ecclesiastical appointees,” Barker said. “In particular, the elders say they did not prepare the records as part of their responsibilities to the congregations; rather, they prepared them 'as part of a ‘sacred ecclesiastical duty' to God to help 'restore erring ones' and maintain the 'scripturally moral and spiritual integrity of our congregations' in the collective sense of the religious denomination of Jehovah's Witnesses."
That duty, the August 2022 petition to the court explained, includes the preparation of documents when someone decides to leave the church.
The petition further said that the records contain “elders’ private and prayerful religious deliberations and expression.”
“There is no evidence that any of the elders breached their scriptural requirement of confidentiality,” the petition said.
The elders said disclosing the records would violate religious practice and conscience.
Barker wrote that without seeing the documents, "it is not possible to decide whether they contain personal information or whose personal information may be included."
