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UPDATE w/ REACTION – Judge Dismisses Valley Churches Petition – Re COVID Rules and Closures

Vancouver – MARCH 18 UPDATE (with files from CP) – A BC Supreme Court Judge dismissed a petition from a legal advocacy group that challenged COVID-19 rules in British Columbia says its argument that the restrictions unjustifiably infringed on religious freedoms.

The Calgary based Justice Centre for Constitutional Freedoms represented Valley Churches in their argument that the Provincial Health Officer Dr. Bonnie Henry, overstepped her authority.

From their website:

The Justice Centre is pleased with the decision of Chief Justice Christopher Hinkson of the Supreme Court of British Columbia to strike down Public Health Orders banning outdoor protests but is disappointed in the Court’s dismissal of 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 found that Dr. Henry was owed deference to her decision-making and was not required to be correct in making her orders but only needed to have acted in a reasonable range of alternatives.

The Justice Centre is reviewing the decision, which comes just two weeks after arguments concluded in a four-day hearing, held in Vancouver on March 1-3 and March 5, 2021.

On January 8, 2021, the Justice Centre filed a constitutional challenge on behalf of three churches and four individuals 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.

In response, the BC government filed an injunction application, targeting the three churches who filed the court challenge. On February 17, the Court denied the government’s request for an injunction.

The BC churches challenging the Provincial Health Orders assert that they have gone to extraordinary lengths to comply with onerous health guidelines, including limiting attendance to no more than 50 persons, 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 well-being. 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, the Dr. Henry’s Orders prohibit faith communities from gathering for any “worship or other religious service”.

To justify their order for an injunction, the BC government cited 180 purported Covid cases associated  with religious gatherings in the province. To date, there have been nearly 90,000 COVID cases in BC. The Justice Centre provided the Court with over 1000 pages of expert evidence, including sworn testimony from an experienced and credentialed Epidemiologist and former Chief Provincial Medical Officer of Health, as well as from an Infectious Disease Specialist.

The BC government allows hundreds of people to gather at any given time in a single big box store. Liquor stores and marijuana stores remain open. The government allows residents to gather and seat six at a table at bars and restaurants. But to members of faith communities, Dr. Bonnie 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. Since November 19, 2020, in-person worship services—which are protected by the freedom of religion under section 2(a) of the Charter—have been prohibited entirely, regardless of the extra safety measures implemented by faith communities.

The Petition filed with the Court challenged the Orders on the basis that they unjustifiably violate the rights and freedoms of BC residents as protected by the Charter, and are thus unconstitutional. “Freedom of conscience and religion” and “freedom of peaceful assembly” are two of the fundamental rights protected by section 2 of the Charter.

“We are pleased with the Court’s decision upholding the Charter rights of BC residents to protest but are disappointed that the challenge to the prohibition on in-person religious worship was dismissed,” states Paul Jaffe, who appeared for the Justice Centre. “We will be discussing this decision with our clients, including an appeal.”

From ARPA Canada | Association for Reformed Political Action:

In a disappointing ruling released last night, the Chief Justice of the Supreme Court of British Columbia upheld the absolute prohibition of in-person worship services. These restrictions were first implemented November 19th, 2020 and continue to this day.

“We are very disappointed with the decision,” says Levi Minderhoud, BC Manager for ARPA Canada. “Thousands of Christians in BC and many people of other faiths have an earnest, deeply-held belief that they must both respect the governing authorities and gather regularly to worship with other believers. The absolute prohibition of in-person worship services placed people of faith in a difficult dilemma of how to balance both of these convictions. This decision perpetuates the tension between obeying the government and obeying the requirements of one’s faith.”

ARPA Canada had the opportunity to intervene in the case, zeroing in on how the COVID-19 restrictions unfairly and unequally impacted churches. Chief Justice Hinkson interacted with ARPA’s arguments on a number of occasions, and accepted a number of ARPA’s legal propositions.

The churches at the centre of this case argued that these restrictions unreasonably infringed the freedom of religion, freedom of expression, freedom of assembly and freedom of association – all four of the Charter’s fundamental freedoms. Attorney General lawyers conceded that three of these freedoms were in fact infringed, and Chief Justice Hinkson agreed with the petitioners with respect to all four. However, he decided that these infringements were reasonable given the circumstances.

“We are thankful that the Chief Justice recognized the profound impact these absolute prohibitions have on religious communities. But we are concerned that he does not have an appreciation for how central, and mandatory, gathered worship is to these Christians,” says lawyer André Schutten, ARPA’s Director of Law and Policy. “Chief Justice Hinkson suggests that because both secular and religious schools can gather that the current restrictions do not disadvantage those with religious beliefs. But, with respect, this fails to appreciate the centrality of gathered worship to these communities. It is small comfort for a child to be able to gather with other Christians for the purpose of learning at school, but not to gather for the purpose of worship at church.”

“While administrative decision makers like Public Health Officers do require a level of deference, Charter rights cannot be ignored even in a pandemic. The government is still obligated to consider and respect the rights and freedoms of its citizens when crafting laws and regulations,” Schutten commented.

Although Chief Justice Hinkson deferred to the government in this case, he does recognize that the government’s authority over religious communities is not absolute. At paragraph 200, Hinkson states, “Religious bodies have a sphere of independent spiritual authority, at the core of which is the authority to determine their own membership, doctrines, and religious practices, including manner of worship.”

“Unfortunately, this decision risks entrenching unfair treatment against minority religious communities,” says Schutten. “The provincial leaders of British Columbia prohibit in-person worship services while they continue to permit in-person activities at bars, restaurants, gyms, and most other businesses. Constitutionally protected activities – such as practicing one’s religion at a worship service – are disallowed, while trivial activities – purchasing a pair of socks at any big box store – are permitted. Although the Provincial Health Officer has given the rationale that religious gatherings are higher risk than other permitted gatherings, we do not believe that the government showed evidence of this, and it is government which must justify the admitted infringements in order for them to be constitutional.”

Schutten states, “An important element of the reasonableness test for justifying Charter rights infringements is the minimal impairment test. That is, if the government is going to infringe our fundamental freedoms, they must choose a way that impairs the right minimally. When every other province – and even British Columbia for the first half of the pandemic – seems able to accommodate worship services at some capacity, whether a cap of 100 people or a percentage of a building, we feel that the absolute prohibition in BC cannot be minimally impairing. This might be an issue to bring to the Court of Appeal for clarification. If the PHO can allow other gatherings to resume with enhanced safety protocols and enforcement, we do not think it is constitutionally justifiable to refuse the same treatment to worship services but simply to continue an absolute ban with respect to them.”

Despite this decision, this issue lives on. The churches who initiated the case have the right to appeal the decision to the BC Court of Appeal. Even if the case is not successfully appealed, a collection of Canadian Reformed Churches and the Catholic Archdiocese of Vancouver have also filed their own judicial reviews on the Public Health Officer’s denial of their request for reasonable accommodations for in-person worship services in their fact-specific situations.

“We will continue to call for Dr. Bonnie Henry to repeal or relax these restrictions on in-person worship services,” says Minderhoud. “To date, Dr. Henry has prioritized keeping schools and workplaces open despite the risk of transmission there. We hope to show her that for many, gathered worship is a priority. And religious convictions and practices can’t be discarded because they are inconvenient, carry some degree of risk, are not considered as valuable as ‘economic’ or ‘educational’ activities, or are not universally practiced by all British Columbians. They are fundamental to the people of faith who practice them. That is why they are enshrined as fundamental freedoms in the Constitution. Christians can continue to abide by reasonable health protocols to help prevent the spread of the virus, and their freedom to carefully and reasonably act upon their religious convictions must be recognized and accommodated by the government.”

FEBRUARY 17 ORIGINAL STORY – BC Supreme Court Chief Justice Christopher Hinkson, dismissed the Province of BC’s application for an injunction against a number of Valley Churches, including Riverside Calvary Chapel, Immanuel Covenant Reformed Church and Free Reformed Church of Chilliwack,

This evolved into fines for churches for contravening the COVID gathering restrictions.

Further legal action from the churches arguing the rules over in person worship restrictions are scheduled to be heard March 1.

The decision came down Wednesday morning.

“To be clear, I am not condoning the petitioners’ [churches] conduct in contravention of the orders that they challenge, but find that the injunctive relief sought by the respondents should not be granted,” Hinkson wrote in his decision.

Those churches have been fined in the past and Chilliwack RCMP had told the church members they could face “up to six months in jail and massive fines, upwards of $50,000.”

 More from the decision (Which can be found here) According to a statement attributed to the Chilliwack RCMP on December 12, 2020, a report of three churches holding in-person services “was actively investigated by the RCMP and the evidence gathered has resulted in the Chilliwack RCMP forwarding a report to the B.C. Prosecution Service for charge assessment of these violations”.

Orders Sought

[8]             The petition is scheduled to be heard beginning March 1, 2021. It is at that time that the merits of the parties’ respective positions will be heard. For now, the respondents seek an injunction in the following terms:

1.       A prohibitory interlocutory injunction that no person may and, in particular, Brent Smith John Koopman, John Van Muyen and the members, directors, elders and clergy of the Riverside Calvary Chapel, Immanuel Covenant Reformed Church and Free Reformed Church of Chilliwack, B.C. must not permit the following premises of the petitioner churches:

a.       8-20178 96 Avenue, Langley, British Columbia;

b.       35063 Page Road, Abbotsford, British Columbia; or

c.       45471 Yale Road West, Chilliwack, British Columbia;

or any other premises to be used for an in-person worship or other religious service, ceremony or celebration, or other “event” as defined in the January 8, 2021 Order of the Provincial Health Officer, Gatherings and Events (“the PHO Order), as amended or as repealed and replaced except:

d.       in accordance with the PHO Order;

e.       as permitted by further order of this Court; or

f.        as permitted by an agreement under s. 38 of the Public Health Act.

Dr. Bonnie Henry, B.C.’s provincial health officer (PHO), has released the following statement in response to Chief Justice Christopher Hinkson’s injunction decision:

“I respect the chief justice’s decision on a procedural motion within a much larger case that goes beyond today, and I thank the court for its full consideration of this matter.

“Since the very start of the pandemic, the Office of the Provincial Health Officer and leaders across government have had ongoing dialogue with faith leaders and had many respectful and productive conversations with them on how best to protect their congregations. 

“Public health orders are one of many tools we use to protect the health of the public in B.C. They are ones that we use judiciously and only as far as necessary. Based on the science and evidence, I put public health orders in place to protect faith leaders, their congregations and the communities in which they worship. These are legal orders that apply to everyone in our province, and most churches are following them. I thank each of them. 

“Three churches have filed a charter challenge of the provincial events and gatherings order. While this legal challenge is heard, everyone must continue to follow the orders to protect themselves and their communities. 

“The health and safety of all British Columbians is my priority and responsibility as PHO, and together we must do everything we can to protect the health of the people of our province. I know how difficult the pandemic has been. With the presence of new COVID-19 variants of concern in B.C., it is critical that we follow public health orders and direction to limit the spread of the virus.

“I am confident that all PHO orders are in accordance with the law, including the Canadian Charter of Rights and Freedoms, and we look forward to the conclusion of the larger case that remains before the courts.”

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