Justice Centre defends Charter freedoms from Ontario government enforcement against churches

Mar 20th, 2021

WATERLOO and AYLMER: The Justice Centre has filed constitutional challenges on behalf of two Ontario churches, after the Attorney General obtained court orders forcing the churches to either comply with arbitrary restrictions on church services, or face contempt proceedings.

Trinity Bible Chapel, located near Waterloo, Ontario, was ordered by the court on January 22, 2021, to abide by a regulation which limited religious gatherings to only 10 people inside the building, regardless of overall capacity.

The pastor at Trinity, Jacob Reaume, has been a vocal advocate throughout the lockdown for the importance of gathering for worship in the life of the church and its community. Having witnessed the negative impacts of the harsh government restrictions on churches for many months in the spring, he announced on his website on December 3 that, if his region went into a hard lockdown again, his church would remain open, and that it was essential to do so.

True to his word, Pastor Reaume held church services on several Sundays for which charges were laid against Trinity and its pastors and elders. Potential fines total in the millions of dollars. Those charges are proceeding through the provincial offences court and, if not withdrawn, will be contested by the Justice Centre as unjustified violations of Charter rights and freedoms.

To raise the pressure on Trinity Bible Chapel, the Attorney General’s office obtained an emergency order under the Reopening Ontario Act, mandating that Trinity and its leadership abide by the restrictions on religious gatherings. When a further service was held, the Attorney General filed urgent contempt of court proceedings, and the church and its leaders were ordered to pay a total of $83,000, including the government’s court costs.

On February 22, 2021, the Justice Centre filed a Notice of Motion to set aside the Order, alleging that the restrictions being enforced against the churches are arbitrary and unconstitutional, and not based on sound scientific evidence that would justify these measures.

This court filing, in addition to ramped-up lobbying by several faith groups, appears to have had an impact. On March 12, the Ford government announced that the 10-person cap that was applicable in regions under “shutdown” or “grey zone” restrictions would be replaced by a 15% building capacity limit.

Meanwhile, the Church of God in Aylmer, Ontario, faced similar enforcement proceedings, after holding one indoor service and inviting some parishioners inside on another Sunday. Generally, the church has held legal drive-in services during lockdown periods, which it won the right to do after launching a Charter challenge last spring, leading the government to amend its regulations. The Attorney General obtained a court order on February 12, 2021 mandating compliance with all restrictions, regardless of which “zone” was in effect in their region. For most of the colour-coded zones regulated under the Reopening Ontario Act, including the most “open” green level, there is a limit of 30% of room capacity on all houses of worship.

The Justice Centre this week filed a Notice of Motion to also set aside the enforcement order against the Church of God, and challenge the capacity limits on religious gatherings as arbitrary and unconstitutional. A timeline for the filing of expert reports and evidence and other steps in the proceeding will be set at the first court date on March 29, 2021.

The Justice Centre will argue that Ontario has failed to consider and balance the harms that flow from lockdown measures and restrictions on civil liberties, including the right to corporate worship, noting that harsh restrictions were intended to be temporary measures and have existed now for over one year.

“All of this government pressure is being brought to bear on churches, which are easy targets, to force them to comply with arbitrary and unscientific public health edicts,” states Justice Centre Staff Lawyer, Lisa Bildy. “Yet the Ford government has not proven in a court of law that its extraordinary, indefinite restrictions on the Charter-guaranteed rights of Ontarians are themselves legal under our Constitution, which is the supreme law that governs those who govern us. They may finally be forced to do so in these proceedings.”

Premier Ford has maintained a de facto state of emergency through its Reopening Ontario Act, which is a backdoor means of continuing to hold emergency powers concentrated in a small group of cabinet members and public health officials, rather than in the elected Legislature, and without meeting the requirements for exercising these powers under the emergency legislation.

“The rule of law and the constitutional rights of these churchgoers and all Ontarians are not suspended by the declaration of a public health crisis,” says Ms. Bildy. “The Constitution, both written and unwritten, continues to apply to all legislation and government decisions and operates to protect the fundamental freedoms and civil rights of all Ontarians, notwithstanding the presence of an infectious illness.”

Government data and statistics continue to show that advanced age is the leading risk factor for death from Covid-19, particularly where there are several serious co-morbidities. For the vast majority of the population, Covid is not a deadly threat. This is especially so for children, who are statistically at greater risk of dying from the annual flu, or as likely to be killed by a lightning strike, as from Covid. There is no scientific evidence that places of worship have been a significant driver of outbreaks leading to deaths in Ontario. Indeed, most of the outbreaks are in institutional settings under the oversight of the government itself, particularly long-term care homes and hospitals.

There has been mounting evidence of lockdown harms. Statistics Canada recently released a statement saying that, since the fall, the number of excess deaths has been higher than the number of deaths due to Covid, and these deaths are affecting younger populations. This suggests that other factors, including more opioid deaths and suicides caused by lockdowns, are now at play.

Ontario’s former Chief Medical Officer of Health, Dr. Richard Schabas, who served as Chief of Staff at York Central hospital during the 2003 SARS crisis, has also spoken out against lockdowns saying, “Lockdown was never part of our planned pandemic response nor is it supported by strong science. Two recent studies on the effectiveness of lockdown show that it has, at most, a small COVID mortality benefit compared to more moderate measures. Both studies warned about the excessive cost of lockdowns.”

The Justice Centre will submit expert evidence to support its position in these court proceedings.