In-Person Religious Services during the COVID-19 Pandemic

On March 1, 2021, several dozen individuals gathered outside of British Columbia’s Supreme Court in Vancouver to protest the public health order restricting in-person religious gatherings and services. Inside the Supreme Court, the constitutionality of the public health order is being challenged on the basis that it infringes certain rights and freedoms protected under the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11 (the “Charter”). These Charter rights and freedoms include freedom of conscience and religion, freedom of thought, belief, opinion and expression, freedom of peaceful assembly, and freedom of association.

Under the Ministerial public health order dated February 10, 2021(repealing and replacing the previous order made with respect to gatherings and events), all in-person religious gatherings and worship services of any size are prohibited. However, religious services can continue online and individuals can still visit their place of worship for individual activities such as guidance from spiritual leaders, contemplation or personal prayer.

In January of 2021, three churches from British Columbia’s Fraser Valley (Riverside Calvary Chapel, Immanuel Covenant Reformed Church, and Free Reformed Church of Chilliwack) and several other individuals filed a petition in the Supreme Court seeking to quash the public health order. By letter dated November 28, 2020, the petitioner Immanuel Covenant Reformed Church wrote that the public health order, in part, infringes their ability to gather together for worship, which is essential to their spiritual health. The letter also outlined that although some aspects of worship can be performed online, many of them cannot. Further, several affidavits from church representatives have been filed that set out the various COVID-19 protocols that have been put in place for in-person gatherings at the churches. These protocols include physical distancing, limits on the number of attendees and mask requirements.

Before the hearing of the petition began, the Provincial Government applied to the Supreme Court for an interlocutory injunction that would force the petitioners to comply with the public health order until final determination of the petition. In reasons dated February 17, 2021 (indexed as Beaudoin v. British Columbia, 2021 BCSC 248), Hinkson C.J. found that the balance of convenience did not favour granting an injunction. Hinkson C.J. noted that the Provincial Government does not necessarily require the assistance of the Court to enforce its own legislation. The Provincial Government can issue fines and prosecute offenders. At paragraphs 67 to 70 of the decision, Hinkson C.J. states:

“[67] If the statement attributed to the Chilliwack RCMP that they forwarded a report to the B.C. Prosecution Service for charge assessment of the violations alleged against three churches is correct, the B.C. Prosecution Service has already been made aware of the conduct of, or similar to, that of the petitioners.

[68] I am left to wonder what would be achieved by the issuance of an injunction in this case. If it were granted and not adhered to, would the administration of justice yet again be brought into disrepute because the B.C. Prosecution Service considers that it would not be in the public interest to prosecute those who refused to adhere to the orders sought from this Court?

[69] When asked, counsel for the respondents said that the respondents accept that the petitioners’ beliefs are deeply held, but in response to my question as to why an injunction was sought, responded that while the petitioners and others like them are not dissuaded from their beliefs and practices by the impugned orders, an order from this Court is more likely to accomplish their compliance.

[70] Given the other remedies available to the respondents, I have reservations that an injunction alone, without enforcement by the B.C. Prosecution Service, would overcome the deeply held beliefs of the petitioners and their devotees. Taking into account the decision in Sager, and the other means of enforcement open to the respondents, I find that the balance of convenience does not favour the respondents in this case, and dismiss their application for an injunction.”

The Provincial Government has conceded that the public health order restricting in-person religious services does infringe individuals’ rights of freedom of conscience and religion. However, the central issue to be determined in this petition is whether the restriction of in-person religious services can be demonstrably justified as a reasonable limitation under section 1 of the Charter. Under section 1 of the Charter, the Government can limit Charter rights if it can show that it has a pressing and substantial reason to do so and that the limitation is proportional. One of the components of proportionality is that a limitation must be minimally impairing.

Although the outcome of this petition will be of significance to many individuals across the Province, it is expected that Hinkson C.J. will reserve judgment after the hearing is complete.