B.C. argues health orders balance COVID-19 safety considerations with religious rights

The British Columbia government says the provincial health officer has to strike a balance between curbing the spread of COVID-19 and religious practice, which may at times affect certain rights under the Canadian charter.

Lawyer Gareth Morley told the B.C. Supreme Court on Tuesday that Dr. Bonnie Henry is using "non-pharmaceutical interventions" to ensure the population remains healthy until vaccines are prevalent.

Morley, who works for the legal services branch of the Attorney General Ministry, said it is agreed that the province is in the middle of a pandemic.

"And measures taken to protect public health, to protect lives, to protect people from serious illness, and to protect the ability of the health-care system itself to respond, that those are the sorts of measures that can limit charter rights, including freedom of religion."

Henry has a duty under the Constitution to "proportionally and reasonably" limit freedoms by preventing the gathering of people to ensure their health and safety, Morley said.

Chief Justice Christopher Hinkson asked who decides whether the limits are proportional or reasonable, adding that he wants to understand how the provincial health officer is making her decisions.

"Aren't the churches entitled to know why if you go to the bar and watch a hockey game for an hour or two, you can't sit in a church for an hour or two? It is a point I struggle with."

Hinkson said he understands Henry has a difficult job, but she hasn't explained why or how she is making the decisions.

"If she chooses not to share her thought process with the court, there's no oversight," he said.

Morley said the decisions are made after careful review by health officials and experts.

So balancing religious rights and protecting people from an "out-of-control epidemic" is a matter of judgment, he said, adding that Henry met with religious leaders and health officials while making her decisions.

'Substantial interference with religious freedom'

Earlier Tuesday, a lawyer for several British Columbia churches told the court the province's COVID-19 restrictions substantially interfere with their right to freedom of religion.

Paul Jaffe argued religion is far more than belief, thoughts and opinions — rather, it's the "actual practice" of those things in ways that are an important part of the faith.

"There couldn't be, I say, a more substantial interference with religious freedom than to prohibit them from gathering to worship — absolutely integral to their faith," he said.

Hinkson said there are no COVID-19 restrictions on people's religious freedoms and it's the safety of those who are gathering that is at issue.

Jaffe said church is as much a part of people's lives as school, gyms and shopping.

He repeated an earlier argument to the court, saying the orders do not prohibit outdoor assemblies over matters of public interest or controversy. Religion is a matter of public interest, but there is a restriction on gatherings, he said.

"In my submission, it's entirely arbitrary," he said. "And for some reason stereotyping of churches in a way which presents them with some kind of risk."

Jaffe works with the Justice Centre for Constitutional Freedoms, a Calgary-based legal advocacy group that's also asking the court to dismiss tickets of up to $2,300 each for alleged violations of the orders.

His clients — which include the Riverside Calvary Chapel in Langley, Immanuel Covenant Reformed Church in Abbotsford and the Free Reformed Church of Chilliwack — have been careful to adopt safety protocols similar to those approved by Henry in places that remain open.

A separate petition was filed Tuesday by representatives of 10 other churches that are part of the Canadian Reformed Churches, which has about 3,000 members. The group wants the court to quash the provincial health officer's restrictions that forbid in-person services.

The Roman Catholic archbishop of Vancouver is challenging the restrictions in court as well, filing a petition on Friday arguing the orders are unconstitutional. The petition seeks an exemption to allow religious gatherings including mass, weddings and baptisms.