Ottawa: The Justice Centre for Constitutional Freedoms today announced that three BC churches have filed a Application for Leave to Appeal to the Supreme Court of Canada from the decision of the BC Court of Appeal which dismissed the legal challenge to British Columbia’s prohibition on in-person worship services imposed between November 2020 and May 2021.
The three Fraser Valley churches each hold as a fundamental tenet of their beliefs that in-person assembly for religious worship is commanded by God and is an essential component of their faith. In December 2020, they held in-person services while adhering to the same safety protocols applicable to other permitted settings in BC at that time. The churches were subjected to police surveillance and charges for hosting in-person worship services.
On January 8, 2021, the three churches along with a protest organizer filed a constitutional challenge against restrictions on public protest and the prohibition on in-person worship services in Public Health Orders issued by BC Provincial Health Officer Dr. Bonnie Henry.
The BC government subsequently unsuccessfully sought an injunction against the churches to permit police to detain anyone they believed intended to attend a religious service in violation of public health restrictions.
On March 18, 2021, Chief Justice Christopher Hinkson of the Supreme Court of British Columbia issued a decision dismissing the challenge to the ban on in-person worship services. At the hearing, the BC government had conceded that its ban on outdoor protests in place from November 19, 2020 to February 10, 2021 was unjustified and the Court declared it to be of no force or effect.
On March 31, 2021, a Notice of Appeal was filed with the BC Court of Appeal. Counsel for the churches argued in their written argument that the “categorical prohibition on in-person worship services did not minimally impair or give effect as fully as possible to the Charter rights engaged.”
The BC Court of Appeal hearing was held on March 29-30, 2022, with the Court issuing its decision on December 16, 2022. The Court of Appeal again dismissed the churches’ challenge to the prohibition on in-person worship services.
Counsel for the churches are seeking leave to appeal to the Supreme Court of Canada on the basis that there are issued raised by the Court of Appeal decision that are of national importance, including specifically:
- Whether the constitutionality of orders that infringe the Charter rights of all citizens ought to be treated by the court as administrative decisions rather than a law of general application.
- Whether citizens challenging the constitutionality of administrative decisions that apply to everyone can provide evidence relevant to whether the decisions are “demonstrably justified in a free and democratic society”.
- Whether citizens challenging the constitutionality of Charter-infringing measures bear the burden of proving the unreasonableness and lack of justification for those decisions.
- Whether a province can prevent the judicial review of the constitutionality of orders applicable to everyone in the province solely because those individuals can apply to the government decision maker for reconsideration.
Counsel for the churches stated in their application that “[t]hese determinations, each stemming from administrative rather than constitutional law, severely degrade the Charter’s strength in protecting citizens’ rights and freedoms.”
“This case has centred on the question of whether BC’s violation of Charter rights was a reasonable limit ‘demonstrably justified in a free and democratic society’ as required by section 1 of the Charter,” states Marty Moore, counsel for the churches. “However, this issue cannot be fairly addressed when a court prevents citizens from providing evidence on whether the restriction of their rights was justified, fails to require that the government justify its restriction of Charter rights, and in fact, holds that citizens are not entitled to challenge the constitutionality of government orders they have been charged with violating. We believe that this case warrants the consideration of the Supreme Court of Canada to address these fundamental issues of constitutional concern in Canada.”
