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B.C. Court of Appeal dismisses challenge to COVID gathering orders

Pandemic ban on church gatherings was constitutional in balancing religious and health objectives, the court ruled.
Bonnie Henry (June 11, BC Govt)
Provincial health officer Bonnie Henry.

B.C.’s Court of Appeal has upheld a lower court's decision, saying the province’s COVID-19 gathering and events restrictions were constitutionally valid.

“The ban on in-person gatherings for religious worship fell within a range of reasonable outcomes and proportionately balanced the appellants’ freedoms with the attainment of critically important public health objectives,” the decision said.

Most of the appellants were churches and their leaders: Alain Beaudoin, Brent Smith, John Koopmans, John Van Muyen, Riverside Calvary Chapel, Immanuel Covenant Reformed Church, and Free Reformed Church of Chilliwack brought the case.

“There is absolutely no basis in the record for the religious appellants’ assertion that in-person worship services were prohibited, not because of the risks they posed, but because they were religious gatherings,” the appeal court said.

Named as defendants were: the Province of British Columbia and provincial health officer Dr. Bonnie Henry.

The group challenged a March 18, 2021 decision by B.C. Supreme Court Chief Justice Christopher Hinkson.

He ruled that while the ban on in-person, indoor church services was an infringement on British Columbians' charter rights, it was "reasonable and proportionate" under Section 1 of the Charter of Rights and Freedoms.

That section states: “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

The group sought declarations that the gathering and events orders amounted to an unconstitutional infringement of their freedom of religion, expression, assembly, association and equality rights because they were unable to gather for in-person religious worship.

“(Hinkson) held that even though the orders limited certain of the petitioners’ constitutional freedoms, they were justified as reflecting a reasonable and proportionate balancing of the charter protections in play with the public health objectives underlying them,” the appeal decision said.

Outdoor protests

One of the appellants, Beaudoin, had organized public gatherings in Dawson Creek in December 2020 and January 2021 for protesters opposed to pandemic-related restrictions, state court documents.

“He did so allegedly in violation of orders made by the PHO that effectively prohibited outdoor gatherings for public protests. He was given two violation tickets,” the court said. 

The court noted Beaudoin's appeal is "moot" given the ban on outdoor protests is no longer in effect and any violation tickets have been stayed. 

The appeal court said the churches and their leaders defied Henry’s orders made between Nov. 19, 2020 and Feb. 10, 2021, to not gather in-person for religious worship. Violation tickets were issued as a result. A petition was filed on Jan. 7, 2021, with a hearing set to commence March 1, 2021.

However, on Jan. 29, 2021, the churches sought reconsideration of the orders banning in-person gatherings for religious worship. On Feb. 25, 2021, in response to the request, Henry varied her previous orders and permitted gatherings for weekly, outdoor, in-person religious services subject to order conditions.

But, the appeal court said, Hinkson found Henry’s decisions, including those temporarily banning in-person gatherings for religious worship, were made in changing circumstances amid substantial uncertainty about how the pandemic would unfold.

It stressed there was concern about the most vulnerable and the capacity of the province's health-care system to continue providing essential, potentially life-saving service for those afflicted by the virus or other serious illnesses or conditions.

“He found there was a rational basis upon which (Henry) could draw a distinction between the transmission risks associated with in-person religious worship and other types of gatherings,” the appeal court said.

“The religious appellants failed to demonstrate that the (gathering and events) orders violated their equality rights,” Justice Gregory Fitch wrote in the appeal decision.

“The restrictions on gatherings also applied equally to religious and secular activities of the same kind,” Fitch said. “A secular choir was no more able to meet in person than a church choir.”

Justice Bruce Butler and Justice Leonard Marchand concurred with Fitch’s decision.

Current class-action certification

It remains to be seen how the appeal decision might affect current proceedings in a class-action certification.

There, a lawsuit filed by the Canadian Society for the Advancement of Science in Public Policy and led by Kipling Warner, seeks to challenge and obtain compensation for various measures, mandates and restrictions imposed in response to the pandemic.

Henry is named as a defendant in the lawsuit.

Justice David Crerar is listening to applications of various kinds as well as evidence to determine if a class action is a suitable choice for the case.

Both the plaintiff’s lawyer, Polina Furtula, and defence lawyer Emily Lapper told Crerar Dec. 16 they had not had time to digest the appeal decision.

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