Suzanne Anton on the legal arguments underpinning an upcoming challenge to a public health order banning in-person religious services.
The meek shall inherit the earth – or shall they? Meekness certainly doesn’t help in politics, and not, it would appear, running a church during a pandemic.
A group of churches in the Fraser Valley are challenging the November public health order prohibiting in-person services.
The November order preventing gatherings and events, including in-person church services, was extended several times for limited periods, and has now been extended indefinitely.
The churches argue that if bars and restaurants can open safely, so can they. They are willing to abide by COVID plans and make concessions to things like capacity and seating restrictions, but believe it is fundamentally wrong that they be banned altogether from in-person services.
Their application in the BC Supreme Court will be heard on March 1.
The province could have simply waited two weeks until the hearing and dealt with the application on its merits. However, they took the opportunity offered by the case to apply for an interim injunction to prohibit the petitioners from holding services, and to authorize a police officer to detain a person intending to attend a service.
No thank you, said Chief Justice Hinkson. Don’t ask the courts to do the heavy lifting you are perfectly capable of doing yourself. You, provincial government, have the authority to enforce your own health orders – you don’t need the courts to do it for you!
Hardly a surprising ruling.
The more interesting part of the case is how the main application will be handled.
The meekness of religious leaders since the November orders has been a little surprising. Thundering from pulpits might have been a historic reaction to forced closure, but aside from a few exceptions, that has definitely not been the norm in the great 2020-21 pandemic.
Almost all religious institutions are visibly working hard on serving their congregations digitally and with forms of service that do not involve group worship. Sikh gurdwaras, for example, are well-known for the meals they serve to all comers. They continue to serve, but at the door.
However, a lack of open defiance does not mean that religious leaders are happy. 0n CBC’s February 17 Early Edition, the Sikh and Muslim leaders on the show were clear in their belief that if bars and restaurants can open safely, so can gurdwaras and mosques. (The Anglican Archbishop was more willing to accept the province’s decision.)
Freedom of religion and assembly are fundamental rights protected by the Charter of Rights and Freedoms. The rights are subject to “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
The court will decide whether the ongoing November order closing the churches – which has no end in sight –will be found to be a reasonable limit.
The challenge for the province will be twofold. The churches will likely be able to demonstrate that they can in fact operate safely, with COVID protocols. On top of that, when the province has expressed confidence in bars and restaurants (as they should), it will be hard to explain why they cannot have similar confidence in churches and other religious institutions.
The case will be argued March 1, and I expect that the decision will be fairly quickly rendered after that.
Unless – and this would not be at all surprising – the province chooses to agree to a quick resolution in advance of the hearing.
Religious institutions and their congregations across the country will be watching.
Hon. Suzanne Anton QC is a former Minister of Justice and Attorney General of British Columbia and a former Vancouver City Councillor
- Suzanne Anton – somewhat prophetically – last wrote about the need to ensure public health orders are issued in such a way so as to stand up to legal challenges. Like, for instance, the one described above. In the column you just read.
- Ada Slivinski articulated the emptiness felt by many missing in-person religious services.
- Public health orders were also issued about potential Super Bowl parties. Jody Vance threw the flag on those looking to huddle up and run the counter. (It’s a football reference!)