The Justice Centre represented the Aylmer Church of God and Pastor Henry Hildebrandt in a case against the Aylmer Police Service and the Ontario government for their infringement of the church members’ Charter-guaranteed freedom of peaceful assembly, and for clarification of what is permitted under emergency legislation. The Aylmer Police had threatened to fine the Church of God despite its use of strict “social distancing” measures to eliminate any discernible risk to public health during their drive-in-only church services beginning last Easter, during the province-wide hard lockdown.
The Church of God, like other congregations across the country, had been prevented from holding in-person services but found a creative and safe way to bring parishioners back together for worship while ensuring member and public safety. During drive-in services in their church parking lot, congregants remained in their vehicles with the windows up, listening to the service on the radio. Only members of the worship team, no greater than five in number in accordance with the gathering limit in force at the time, were outside of their vehicles and they also follow strict physical distancing guidelines.
Despite successfully conducting two such services with the approval of police, complaints were made by people who saw a photo of the Aylmer Church of God parking lot, and mistakenly assumed that the congregants were inside the building. The Aylmer Police Chief then threatened that any further services would be considered a breach of the law and subject to stiff penalties, from tickets of $750 up to $100,000 in fines, or a year in jail.
The church held its third drive-in service on April 26, again abiding by all social distancing and public health protection measures. Police attended on the church’s private property, videotaping all of the vehicles and maintaining an ominous presence.
The Justice Centre sent a demand letter to the Police Chief, and on May 12, 2020, commenced a Charter challenge against both the police and the government. Shortly thereafter, on May 16, the Ford government amended its order prohibiting gatherings to expressly allow for drive-in religious services.
Like all laws in this country, the Emergency Management and Civil Protection Act, which was in force at the time, is subject to the Canadian Charter of Rights and Freedoms, which guarantees citizens that the government will not infringe their freedoms of peaceful assembly and religion, among other fundamental freedoms, unless the restriction on freedom is demonstrably justified. Where there is a pressing and substantial concern, such as a declared public health emergency, the government may impose reasonable and narrow restrictions on Charter freedoms, but the government must violate those freedoms as little as possible, only to the extent necessary to achieve an important goal.
Since the matter settled without requiring a court order, the application was abandoned on consent of all parties.