May 12th, 2020
AYLMER: The Justice Centre has served a Charter challenge against the Aylmer Police Service and the Ontario government for their infringement of a church’s freedom of peaceful assembly, and for clarification of what is permitted under emergency legislation. The Aylmer Police have threatened to fine the Church of God of Aylmer despite its use of strict “social distancing” measures to eliminate any discernible risk to public health during their drive-in-only church services. The application further seeks a declaration that the police have no legal authorization to charge the church or its members under these circumstances.
The Church of God, like other congregations across the country, has 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. A drive-in service was held for the last five Sundays in their church parking lot, with congregants remaining 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, are 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.
Although the provincial Crown Attorney declined to proceed with charges on this occasion, the Aylmer Police Chief declared that this was an opportunity to educate the congregation, and that a further police investigation could follow if complaints were received. On the last two Sundays, police maintained a presence on or near the church property during the services.
The Province’s Order under the Emergency Management and Civil Protection Act, prohibits gatherings of more than five people, including for the purposes of conducting religious services, rites or ceremonies. Despite the fact that many stores and businesses remain open, with varying degrees of success in limiting physical contact between customers, churches and other religious centres have been singled out and effectively closed.
The Act, like all laws in this country, 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 it demonstrably justified. Where there is a pressing and substantial concern, such as a declared public health emergency, reasonable restrictions may be imposed, but there must be a minimal impairment of those rights.
“The Government of Ontario has had ample time to clarify its Order to ensure that it is not overly broad or arbitrarily targeting religious groups but has failed to do so, leaving the church with no option but to commence legal proceedings for declaratory relief from the courts,” said Justice Centre staff lawyer Lisa Bildy.
“Courts provide a necessary check on the other branches of government, namely the legislative and executive branch, and this is particularly important during an emergency, when civil liberties are being widely suspended and encroached upon. The Charter of Rights and Freedoms requires that governments justify their infringements on the fundamental freedoms of their citizens, and sometimes the only way to ensure they do that is in a court of law. It is therefore of fundamental importance to our free and democratic society that Charter or other constitutional challenges be heard,” added Bildy.