In a disappointing ruling released last night, the Chief Justice of the Supreme Court of British Columbia upheld the absolute prohibition of in-person worship services. These restrictions were first implemented November 19th
, 2020 and continue to this day.
“We are very disappointed with the decision,” says Levi Minderhoud, BC Manager for ARPA Canada. “Thousands of Christians in BC and many people of other faiths have an earnest, deeply-held belief that they must both respect the governing authorities and gather regularly to worship with other believers. The absolute prohibition of in-person worship services placed people of faith in a difficult dilemma of how to balance both of these convictions. This decision perpetuates the tension between obeying the government and obeying the requirements of one’s faith.”
ARPA Canada had the opportunity to intervene in the case, zeroing in on how the COVID-19 restrictions unfairly and unequally impacted churches. Chief Justice Hinkson interacted with ARPA’s arguments on a number of occasions, and accepted a number of ARPA’s legal propositions.
The churches at the centre of this case argued that these restrictions unreasonably infringed the freedom of religion, freedom of expression, freedom of assembly and freedom of association – all four of the Charter’s fundamental freedoms. Attorney General lawyers conceded that three of these freedoms were in fact infringed, and Chief Justice Hinkson agreed with the petitioners with respect to all four. However, he decided that these infringements were reasonable given the circumstances.
“We are thankful that the Chief Justice recognized the profound impact these absolute prohibitions have on religious communities. But we are concerned that he does not have an appreciation for how central, and mandatory, gathered worship is to these Christians,” says lawyer André Schutten, ARPA’s Director of Law and Policy. “Chief Justice Hinkson suggests that because both secular and religious schools can gather that the current restrictions do not disadvantage those with religious beliefs. But, with respect, this fails to appreciate the centrality of gathered worship to these communities. It is small comfort for a child to be able to gather with other Christians for the purpose of learning at school, but not to gather for the purpose of worship at church.”
“While administrative decision makers like Public Health Officers do require a level of deference, Charter rights cannot be ignored even in a pandemic. The government is still obligated to consider and respect the rights and freedoms of its citizens when crafting laws and regulations,” Schutten commented.
Although Chief Justice Hinkson deferred to the government in this case, he does recognize that the government’s authority over religious communities is not absolute. At paragraph 200, Hinkson states, “Religious bodies have a sphere of independent spiritual authority, at the core of which is the authority to determine their own membership, doctrines, and religious practices, including manner of worship.”
“Unfortunately, this decision risks entrenching unfair treatment against minority religious communities,” says Schutten. “The provincial leaders of British Columbia prohibit in-person worship services while they continue to permit in-person activities at bars, restaurants, gyms, and most other businesses. Constitutionally protected activities – such as practicing one’s religion at a worship service – are disallowed, while trivial activities – purchasing a pair of socks at any big box store – are permitted. Although the Provincial Health Officer has given the rationale that religious gatherings are higher risk than other permitted gatherings, we do not believe that the government showed evidence of this, and it is government which must justify the admitted infringements in order for them to be constitutional.”
Schutten states, “An important element of the reasonableness test for justifying Charter rights infringements is the minimal impairment test. That is, if the government is going to infringe our fundamental freedoms, they must choose a way that impairs the right minimally. When every other province – and even British Columbia for the first half of the pandemic – seems able to accommodate worship services at some capacity, whether a cap of 100 people or a percentage of a building, we feel that the absolute prohibition in BC cannot be minimally impairing. This might be an issue to bring to the Court of Appeal for clarification. If the PHO can allow other gatherings to resume with enhanced safety protocols and enforcement, we do not think it is constitutionally justifiable to refuse the same treatment to worship services but simply to continue an absolute ban with respect to them.”
Despite this decision, this issue lives on. The churches who initiated the case have the right to appeal the decision to the BC Court of Appeal. Even if the case is not successfully appealed, a collection of Canadian Reformed Churches and the Catholic Archdiocese of Vancouver have also filed their own judicial reviews on the Public Health Officer’s denial of their request for reasonable accommodations for in-person worship services in their fact-specific situations.
“We will continue to call for Dr. Bonnie Henry to repeal or relax these restrictions on in-person worship services,” says Minderhoud. “To date, Dr. Henry has prioritized keeping schools and workplaces open despite the risk of transmission there. We hope to show her that for many, gathered worship is a priority. And religious convictions and practices can’t be discarded because they are inconvenient, carry some degree of risk, are not considered as valuable as ‘economic’ or ‘educational’ activities, or are not universally practiced by all British Columbians. They are fundamental to the people of faith who practice them. That is why they are enshrined as fundamental freedoms in the Constitution. Christians can continue to abide by reasonable health protocols to help prevent the spread of the virus, and their freedom to carefully and reasonably act upon their religious convictions must be recognized and accommodated by the government.”