BC churches’ challenge to total ban on in-person worship: Brent Smith v. British Columbia

In Brent Smith v. British Columbia, three Fraser Valley churches that each believe 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 all Covid regulations in force in BC at that time, including hand-washing, face masks, social distancing and capacity limits. The churches were subjected to police surveillance and charges for hosting in-person worship services.

The preamble to the Charter invokes “the supremacy of God and the rule of law” as principles upon which Canada is founded. The petitioners in this case have asserted that certain of their Charter rights have been unlawfully infringed.

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.”

On December 16, 2022, the BC Court of Appeal again dismissed the churches’ challenge to the prohibition on in-person worship services.

In February of 2023, the churches sought leave to appeal to the Supreme Court of Canada on the basis that there are issues raised by the Court of Appeal decision that are of national importance, including specifically:

  1. 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.
  2. 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”.
  3. Whether citizens challenging the constitutionality of Charter-infringing measures bear the burden of proving the unreasonableness and lack of justification for those decisions.
  4. 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.”

On August 10, 2023, the Supreme Court of Canada decided not to hear the case of three British Columbia churches who have challenged the total prohibition of in-person worship services that was imposed by the British Columbia government from November 2020 through to May 2021. The government closed all houses of worship while allowing restaurants and gyms to remain open.

“We are disappointed that the Supreme Court of Canada has declined our application for leave to appeal in this matter. Errors such as imposing on citizens the burden to show that government violations of their rights were unreasonable, contrary to the language of section 1 of the Charter, will need to be corrected in latter cases,” states lawyer Marty Moore.

“Our clients, who still face prosecution for holding safe in-person worship services in 2020 and 2021, will continue to assert their other legal and constitutional rights in defense against those charges, including that the Provincial Health Officer abused her discretion in selectively permitting and prohibiting in-person gatherings based on factors other than health and safety. The complete prohibition on in-person worship services, indoors or outdoors, in the Public Health Orders is a prime example of such conduct,” continued Moore.

For additional info, please read Beaudoin v. British Columbia.

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