KELOWNA: The Justice Centre announced today that the decision of the Provincial Court of British Columbia, denying a Kelowna pastor the right to challenge the constitutionality of a provincial public health order which prohibited in-person worship services, will be appealed.

Pastor Arthur Lucier of Kelowna Harvest Church was issued a $2,300 ticket for allegedly holding an in-person worship service.  When Pastor Lucier received the ticket in January 2021, BC’s Public Health Officer, Dr. Bonnie Henry, had prohibited in-person worship services completely, while permitting gyms, bars, restaurants, retail outlets and educational settings to host in-person gatherings.

Pastor Lucier is one of several BC clergy members represented by Justice Centre lawyers.  A Notice of Constitutional Question was filed on Mr. Lucier’s behalf, giving notice that the differential treatment in Dr. Henry’s order prohibiting in-person religious worship services while permitting numerous secular in-person settings would be challenged on the basis that it is not justified by medical data or science.

Lawyers for the BC government brought a motion seeking to prevent Pastor Lucier from challenging the constitutionality of Dr. Henry’s prohibition on in-person worship services. Arguments on the motion were heard at Kelowna Provincial Court in April and June of 2022.

The Court ruled that Pastor Lucier could not challenge the constitutionality of Dr. Henry’s order prohibiting in-person worship services. Instead, the Court held that Pastor Lucier should have personally and individually requested that Dr. Henry reconsider her provincial health order, and that his failure to have done this now prevents him from challenging the constitutional validity of the health order.

The Court had clear evidence before it that Dr. Henry had been receiving repeated and persistent requests for reconsideration of her orders prohibiting in-person worship.  In one case, a Pastor wrote to Dr. Henry on December 7, 2020, requesting reconsideration of her prohibition on in-person worship services and proposing specific safety protocols to permit in-person worship.  After receiving no response, the Pastor sent another request on January 7, 2021.  The Pastor received no response from Dr. Henry or her staff until May 5, 2021, when an email was sent out by Dr. Emerson, the Deputy Public Health Officer, which stated in part:

• As you might imagine Dr. Henry has received a large volume of requests for reconsideration of Provincial Health Officer Orders. The time and expertise required to consider them has become beyond her capacity to manage and would require resources which are better directed at assessing and responding to threats to the health of the public as a whole.
• Therefore, in the interest of protecting the public health, Dr. Henry is not accepting requests to reconsider Orders until the level of transmission of infection, the incidence of serious disease, the number of hospitalizations, admissions to intensive care units and deaths, and the strain on the public health and health care systems, are significantly reduced.

The Court did not address the fact that Dr. Henry had received more requests for reconsideration than she had “capacity to manage.”

“The Court’s decision failed to address the reality that the four and a half million residents of BC affected by Dr. Henry’s health orders could not possibly receive due consideration of their personal requests for her to reconsider her order,” notes Marty Moore, a lawyer at the Justice Centre. “If the decision is allowed to stand, BC residents facing charges for allegedly violating the public health orders while exercising their Charter rights would be deprived of their ability to defend themselves based on the Charter, which is part of the supreme law of Canada.  This decision will be challenged on appeal.”