The Justice Centre has launched a constitutional challenge in the Supreme Court of BC on behalf of three churches and four individuals against restrictions on public protests and the prohibition of in-person worship services order by BC Provincial Health Officer Dr. Bonnie Henry. The challenge was filed on January 8, 2021.
In response, the BC government filed an injunction application targeting the three churches participating in the court challenge. On February 17, 2021, B.C. Chief Justice Christopher Hinkson denied the government’s request for an injunction.
The churches challenging the Provincial Health Orders assert that they have gone to extraordinary lengths to comply with extensive health guidelines, including limiting attendance, pre-registering attendees, rearranging seating to ensure physical distancing, providing hand sanitizer and masks, and enhancing cleaning and sanitizing procedures.
Some of these churches’ members cannot access online services, and for many in these faith communities, gathering in-person is essential to their spiritual and emotional health. Affidavits have been filed attesting to the negative effect prohibiting in-person gatherings has had on individuals, including loneliness, depression, anxiety and fear. Although support groups are permitted to meet, Dr. Henry’s Orders prohibit faith communities from gathering for any “worship or other religious service”.
To justify its prohibition on in-person worship, the BC government cited 180 purported Covid cases “associated with” “religious settings” in the province. To date, there have been over 80,000 Covid cases in BC.
The BC government allows hundreds of people to gather at any given moment in a single big box store. Liquor stores and marijuana stores remain open. The government allows residents to gather in groupings of six at a table in bars and restaurants. But to members of the faith community, Dr. Henry has stated “Do not attend a service at a church, synagogue, mosque, gurdwara, temple, or other places of worship.”
Citizens who have gathered to peacefully protest the devastating impact of Covid lockdowns have also been ticketed for the exercise of their right to peaceful assembly, expression and association—as protected by sections 2(b), (c), and (d) of the Canadian Charter of Rights and Freedoms—as a result of Dr. Henry’s Orders. Tickets have also been issued to churches who have gathered in accordance with their sincerely-held religious beliefs.
The Petition filed with the Court challenges the Orders on the basis that they unjustifiably violate the rights and freedoms of BC residents, particularly freedom of conscience, freedom of religion and freedom of peaceful assembly as protected by the Charter, and are thus unconstitutional. The hearing of the challenge was presided over by Chief Justice Christopher Hinkson on March 1-3 and 5, 2021. During the hearing, the BC government conceded that Dr. Henry’s prohibition on outdoor political protests was unconstitutional.
More than 1000 pages of impeccably credentialed expert reports were filed by the Justice Centre, including extensive Affidavits from an epidemiologist and infectious disease specialist.
In the decision of Chief Justice Christopher Hinkson of the Supreme Court of British Columbia, issued March 18, 2021, the Court ruled to strike down Public Health Orders banning outdoor protests but dismissed the challenge to the BC Government’s prohibition on in-person religious gatherings.
Regarding the Applicant churches, Chief Justice Hinkson found that Dr. Henry’s Orders infringe the fundamental freedoms of religion, speech, assembly and association, but ruled that the infringements are justified. The Chief Justice did not address the much higher transmission risks in settings BC permits to be open, but rather granted wide deference to Dr. Bonnie Henry’s decision to categorically prohibit in-person religious services.
This BC Court of Appeal heard this case on March 29-30, 2022, in Vancouver. The decision of the Court of Appeal is pending.