A Calgary constitutional lawyer and religious freedom expert believes the case may be unconstitutional under the Charter and should be “thrown out.”

“The state can’t tell a Church how to be a Church,” said  Gerry Chipeur. “If the state were settling the Church’s disputes they would be telling the Church how to achieve its mission.”

The Catholic Civil Rights League is also concerned.

“I regard it as a very bad precedent for a bishop to be asked to share internal Church documents with a secular court,” said CCRL executive director Joanne McGarry.

“Traditionally we’ve had a relationship between church and state where they don’t interfere with one another.

“This case involves questions of Church doctrine, such as what does the Church teach about abortion, about marriage and about the role of a priest in public life. It also involves internal Church discipline. I don’t think these are matters for a civil court to determine.”

Gravel served as a Bloc Quebecois MP from 2006 to 2008. He argues that media articles about him led to complaints that ultimately prompted the Vatican to issue a 2008 ultimatum forcing the priest to leave politics.

The defendants’ lawyers have been granted leave to depose Lussier about the role played by the Church in Gravel’s political career.

“My motion was only partially granted,” said defence attorney Jean-Yves Côté. 

The judge will not allow a “fishing expedition,” that will engage theological matters but only permit questions regarding two subjects: the role the bishop played in Gravel’s decision to enter politics; and what role the Vatican played in his decision not to run, he said.

Gravel’s lawyer Jean-Philippe Lemire said the bishop can not be questioned on whether he believes the priest has remained faithful to the Church in what he has said.

“Maybe that will be an interesting question to ask at the trial, but not before,” said Lemire.

Whether Gravel has been faithful to Church teaching is central to the lawsuit, Côté said.

Ottawa lawyer Albertos Polizogopoulis said it is unusual for a third party (in this case Lussier) to be deposed at the discovery stage. He also warned of a dangerous “slippery slope” that could open up churches to discovery in lawsuits where they are not a party.

If the priest or the defendants had petitioned the Vatican directly, they would have been refused these Church documents, he said. But by questioning the bishop they may gain access to them.