Two Ontario churches have filed an application in the Supreme Court of Canada seeking leave to appeal from the decision upholding the restrictions imposed on religious gatherings by the Ontario government during the COVID pandemic.
Restrictions on gatherings were first imposed using the Ontario’s powers under the Emergency Management and Civil Protection Act, commencing March of 2020. In July of 2020, when the state of emergency ended, Ontario transferred its emergency powers into new legislation, called the Reopening Ontario Act. Orders restricting gatherings to as few as 10 people were made under this Act.
The Superior Court of Justice and the Court of Appeal have upheld these religious gathering restrictions.
The parties challenging gathering restrictions include Pastor Henry Hildebrandt and the Aylmer Church of God, who initially gained the attention of police for holding drive-in services. The Church of God was subsequently ordered to pay $274,000 in fines and costs for allegedly violating gathering limits, including three outdoor services held in May and June 2021.
The evidence in this case establishes that the risk of outdoor transmission is negligible. According to Ontario’s own expert witness, Dr. Zain Chagla:
- outdoor religious gatherings are safe, whether there are 10 COVID cases a day or 10,000, regardless of variants of concern
- the Outdoor Restrictions may have increased COVID transmission by encouraging clandestine gatherings in small indoor spaces where transmission risks are much higher
- restrictions on outdoor gatherings are not justified or appropriate from a public health perspective.
Trinity Bible Chapel in Waterloo, its lead pastor Jacob Reaume, and other church members, are also seeking permission to appeal to the Supreme Court of Canada. When Ontario closed houses of worship in December 2020, Trinity Bible Chapel, with a large 900-seat auditorium, could not in good conscience close its doors to parishioners. The 10 person limits were imposed on worship services, while essential retail was permitted 50% capacity with physical distancing. Trinity Bible Chapel received hundreds of thousands of dollars in fines and legal costs and were forcibly locked out of their church building by court order for several months.
The churches have challenged the gathering restrictions for violating the fundamental freedoms of conscience, religion, expression, peaceful assembly, and association, guaranteed by the Canadian Charter of Rights and Freedoms in a manner that could not demonstrably be justified in a free and democratic society. They argued that the harms caused by the gathering restrictions far outweighed any benefit they provided, and that they must be struck down.
Justice Pomerance of the Ontario Superior Court denied the churches’ challenge.
At the Court of Appeal hearing in December 2022, the churches argued that Justice Pomerance erred by:
- improperly assessing and weighing the expert evidence
- disregarding consideration of the freedoms of expression, peaceful assembly and association
- misapplying the legal test under section 1 of the Charter to find the gathering restrictions as justified
Nonetheless, in a decision issued on March 1, 2023, the Court of Appeal upheld the denial of the churches’ challenge. Rob Kittredge, who has represented the churches throughout their legal challenge, said: “We are disappointed in the result at the Court of Appeal. But we are optimistic that the Supreme Court of Canada will see the national importance of the issues raised in this case and hear our appeal. We maintain that the religious gathering restrictions imposed by the province of Ontario went further than what was necessary to manage the spread of Covid in the province.”
Mr. Kittredge adds: “The restrictions on outdoor gatherings were particularly unjustified, as it was well known even at the time that Covid-19 – like other infectious respiratory diseases – does not spread outdoors. In light of the severity of the impact that Covid-era restrictions had on civil liberties, Canadians are entitled to have this matter heard by this country’s highest court.”
“When fundamental freedoms – given to us by our Creator and guaranteed in our Constitution – are under attack, we are obligated to stand up and withstand the attack,” says Pastor Henry Hildebrandt. “This was never about defying our government, this was always about defending the freedom to worship and assemble without interference in Canada for all citizens. We didn’t pick this fight, our governments unfortunately did. We are grateful to the JCCF for supporting us in our bid to take this to our highest court. We pray that this application will be successful and will serve as a future defense of Canadian citizens against unconstitutional restrictions on basic, God-given freedoms.”
- The Ontario Superior Court of Justice decision: Ontario v. Trinity Bible Chapel et al, 2022 ONSC 1344 (CanLII)
- The Court of Appeal for Ontario decision: Ontario (Attorney General) v. Trinity Bible Chapel, 2023 ONCA 134 (CanLII)
- Court of Appeal factum
- Memorandum of argument filed with the application for leave to appeal to the Supreme Court
Update August 10, 2023:
The Justice Centre for Constitutional Freedoms is disappointed that the Supreme Court of Canada will not hear a further appeal of two Ontario churches who challenged the Ontario government’s violation of Charter-protected religious freedom through lockdowns measures.
“We are disappointed to learn that the Supreme Court determined that this was not a matter of national importance” says lawyer, Hatim Kheir. “This is now the final word from the courts on the constitutionality of Ontario’s religious gathering restrictions.”