BC Supreme Court strikes down Orders restricting outdoor protests, but maintains prohibition on in-person religious services
Mar 18th, 2021
VANCOUVER: The Justice Centre is pleased with the decision of Chief Justice Christopher Hinkson of the Supreme Court of British Columbia to strike down Public Health Orders banning outdoor protests but is disappointed in the Court’s dismissal of the challenge to the BC Government’s prohibition on in-person religious gatherings.
Regarding the Applicant churches, Chief Justice Hinkson found that Dr. Henry’s Orders infringe the fundamental freedoms of religion, speech, assembly and association, but ruled that the infringements are justified. The Chief Justice found that Dr. Henry was owed deference to her decision-making and was not required to be correct in making her orders but only needed to have acted in a reasonable range of alternatives.
The Justice Centre is reviewing the decision, which comes just two weeks after arguments concluded in a four-day hearing, held in Vancouver on March 1-3 and March 5, 2021.
On January 8, 2021, the Justice Centre filed a constitutional challenge on behalf of three churches and four individuals against restrictions on public protest and the prohibition on in-person worship services in Public Health Orders issued by BC Provincial Health Officer Dr. Bonnie Henry.
In response, the BC government filed an injunction application, targeting the three churches who filed the court challenge. On February 17, the Court denied the government’s request for an injunction.
The BC churches challenging the Provincial Health Orders assert that they have gone to extraordinary lengths to comply with onerous health guidelines, including limiting attendance to no more than 50 persons, pre-registering attendees, rearranging seating to ensure physical distancing, providing hand sanitizer and masks, and enhancing cleaning and sanitizing procedures.
Some of these churches’ members cannot access online services, and for many in these faith communities, gathering in-person is essential to their spiritual and emotional well-being. Affidavits have been filed attesting to the negative effect prohibiting in-person gatherings has had on individuals, including loneliness, depression, anxiety and fear. Although support groups are permitted to meet, the Dr. Henry’s Orders prohibit faith communities from gathering for any “worship or other religious service”.
To justify their order for an injunction, the BC government cited 180 purported Covid cases associated with religious gatherings in the province. To date, there have been nearly 90,000 COVID cases in BC. The Justice Centre provided the Court with over 1000 pages of expert evidence, including sworn testimony from an experienced and credentialed Epidemiologist and former Chief Provincial Medical Officer of Health, as well as from an Infectious Disease Specialist.
The BC government allows hundreds of people to gather at any given time in a single big box store. Liquor stores and marijuana stores remain open. The government allows residents to gather and seat six at a table at bars and restaurants. But to members of faith communities, Dr. Bonnie Henry has stated: “Do not attend a service at a church, synagogue, mosque, gurdwara, temple, or other places of worship”.
Citizens who have gathered to peacefully protest the devastating impact of Covid lockdowns have also been ticketed for the exercise of their right to peaceful assembly, expression and association—as protected by sections 2(b), (c), and (d) of the Canadian Charter of Rights and Freedoms—as a result of Dr. Henry’s Orders.
Tickets have also been issued to churches who have gathered in accordance with their sincerely-held religious beliefs. Since November 19, 2020, in-person worship services—which are protected by the freedom of religion under section 2(a) of the Charter—have been prohibited entirely, regardless of the extra safety measures implemented by faith communities.
The Petition filed with the Court challenged the Orders on the basis that they unjustifiably violate the rights and freedoms of BC residents as protected by the Charter, and are thus unconstitutional. “Freedom of conscience and religion” and “freedom of peaceful assembly” are two of the fundamental rights protected by section 2 of the Charter.
“We are pleased with the Court’s decision upholding the Charter rights of BC residents to protest but are disappointed that the challenge to the prohibition on in-person religious worship was dismissed,” states Paul Jaffe, who appeared for the Justice Centre. “We will be discussing this decision with our clients, including an appeal.”
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