Rob Shaw: By introducing ‘experts’ with dubious credibility, a group of churches challenging restrictions on in-person religious services did themselves no favours.
B.C.’s churches have tried, and failed, to sideswipe the credibility of the province’s top doctor in court, as part of their bid to overturn a ban on in-person religious activities during the pandemic.
B.C. Supreme Court Chief Justice Christopher Hinkson sided with Provincial Health Officer Dr. Bonnie Henry in his ruling last week, saying her restrictions on in-person church service were a justifiable infringement on the religious rights protected by the Charter of Rights and Freedoms because they are attempting to protect society as a whole from the spread of the virus.
Hinkson has given the province a rough ride in his courtroom recently, striking down two attempts to reform ICBC, the government’s first application for an injunction to close churches and, at the start of this case, openly chastising government lawyers for showing up to defend Dr. Henry’s orders without even bothering to take a sworn affidavit from her on her reasoning.
Still, in the end, Hinkson gave a badly-needed shot of judicial support to Dr. Henry, who finds herself increasingly under attack from the epidemiological equivalent of back-seat drivers.
“I find that Dr. Henry turned her mind to the impact of her orders on religious practices and governed herself by the principle of proportionality,” Hinkson concluded.
“She consulted widely with faith leaders and individually asked for the input of the leaders of two of the churches making up the religious petitioners, while affirming the need for respect for the rule of law and public health.”
The chief justice noted that Dr. Henry “has the formidable responsibility” of trying to protect us from the virus, while balancing a wide variety of competing interests, and observed that “through the pandemic, Dr. Henry has consistently expressed her awareness of the impacts of her orders, of her mandate to protect public health, and of her duty to do so in a way that is proportionate to those impacts” even if the churches disagreed.
And boy, did the churches disagree.
The 60-page decision lays out quite an attack by “the religious petitioners” – a group of mainly Fraser Valley churches that have tried to defy the ban on in-person worship, as well as the “Association for Reformed Political Action Canada,” a political action body of the Christian right that has fought against COVID restrictions.
The churches offered up two so-called experts of their own, Dr. Thomas Warren to try and counter Dr. Henry’s assertion that the risk of transmission of COVID-19 is greater inside churches, and Dr. Joel Kettner, to try and question whether Dr. Henry is overblowing her public health response.
Kettner, a former Chief Public Health Officer in Manitoba, makes the rounds on borderline conspiracy shows, questioning the supposed lack of science behind the restrictions and questioning why the mainstream media fails to pick up on his theories.
“He queried whether Dr. Henry’s G&E Orders were evidence-based,” summarized Hinkson.
But the chief justice, mercifully, set aside second-grade science in quick order, saying he would not consider it.
“Dr. Henry did not have the reports of these two doctors available to her when she made the impugned (gathering and event) orders… if I allowed the religious petitioners to rely upon this purportedly expert evidence, that would permit them to bypass the statutory decision maker without affording deference to Dr. Henry’s findings on the face of the record before her,” he wrote.
Thank goodness. The less quackery on the record, the better.
The government pointed to the high number of outbreaks in churches – more than 180 cases in 48 churches between March 2020 to January 2021.
Henry cited the communal setting, crowded seating, less ventilation and people singing, chanting or speaking at higher than conservations volumes as some of the factors that make in-person church services a particular concern.
The churches countered with arguments that there is “no evidence” COVID-19 transmission could be expected from church services that follow proper masking, distancing and sanitization guidelines, and that disallowing in-person worship hurts the most vulnerable members of the church community while encouraging depression, anxiety, loneliness and fear.
They also argued that the church services had “obviously identical risks” to restaurants, schools, gyms and other businesses currently allowed to remain open.
Hinkson pushed that aside as well, saying the churches improperly formed the comparison and it failed to demonstrate that the health orders were targeting religious worship.
In the end, the ruling was simple: Yes, the restrictions against in-person church services violate the rights to freedom of assembly, expression and religion, under section 2 of the charter. But, those limits are reasonably justified under section 1 of the charter, which gives governments the power to limit our rights in certain circumstances. COVID-19, the greatest public health crisis of our time, is in fact one of those circumstances, ruled Hinkson.
The judge reaffirmed that the court is not there to second-guess the scientific and medical expertise of Dr. Henry, but instead to ensure she has taken reasonable steps to seek out alternatives and limit harm in making the decisions she deems necessary.
“Although the impacts of the (gathering and events) orders on the religious petitioners’ rights are significant, the benefits to the objectives of the orders are even more so,” wrote Hinkson.
“In my view, the orders represent a reasonable and proportionate balance.”
Victory for Dr. Henry’s judgement.
A satisfying dismissal of fringe experts and the peanut gallery that alleges Dr. Henry fails to follow the science or evidence.
Plus, the churches still must pay $299,990 in fines from 11 tickets for violating the public health orders in recent months.
If the churches appeal, hopefully, the penalty will be higher.
Rob Shaw has spent more than 13 years covering BC politics, now reporting for CHEK News and writing for The Orca. He is the co-author of the national best-selling book A Matter of Confidence, and a regular guest on CBC Radio.
- BC’s latest vaccine plan update is an example of the difficult decisions that must be made by provincial health officials – and, as Rob Shaw noted, an unambiguous win for the BCTF.
- Suzanne Anton wrote about the first episode in this drama, when the province argued public health orders come from Dr. Bonnie Henry alone – but was surprised when asked for an affidavit with supporting evidence from her. D’oh.
- One recent Question Period showed how BC politics has already started to shift back towards a more traditional adversarial approach, said Maclean Kay.