Gabriel-Liberty Wall and Gregory Westgarde, two former Jehovah’s Witnesses, filed freedom of information requests to access their personal information held by their respective former congregations. The congregations denied these requests. An adjudicator from the Office of the Information and Privacy Commissioner (OIPC) ordered that the information be disclosed to the OIPC in order to determine whether the information could be withheld from Mr. Wall and Mr. Westgarde. The congregations challenged the order via petition, claiming that sharing this information with the OIPC violates their freedom of religion.

The petition judge found that the legislation – the Personal Information Protection Act (PIPA) – requiring the disclosure does breach the right to freedom of religion under section 2 of the Charter, but was justified under section 1 using the Oakes test – a legal framework that allows courts to determine if a law that infringes on Charter rights can be legally justified. The BC Court of Appeal found that it was not the legislation, but rather the OIPC’s discretionary decision to order the disclosure that raised Charter issues. This time applying the more deferential Doré/Loyola framework for administrative decisions, the Court upheld the judge’s decision again because it properly balanced Charter values.

The congregations have appealed the decision once more, this time to the Supreme Court of Canada.

We are intervening to argue that the distinction between Charter rights and Charter values in administrative law has become confusing and unhelpful. We are urging the Supreme Court to provide clarity on this issue. Where Charter rights are at stake, the analysis should focus on those rights and administrative orders, like the ones issued by the OIPC, should be reviewed more closely. The correctness standard of review should apply, and the Oakes test should be used to justify any infringement. This more stringent standard is necessary to ensure that Charter rights are respected, no matter the context.

Charter values can play a role in cases where Charter rights aren’t at issue, like when an administrative decision applies to a non-rights holder, but nonetheless impacts the purposes underlying a Charter right. These cases should be decided on the more deferential reasonableness standard of review.