BC Court of Appeal supported faith gathering ban during COVID pandemic, cites 'pluralism'

The Canadian Press / Darryl Dyck

"I acknowledge that the orders imposed significant burdens on many members of our community," wrote Justice Gregory Fitch, who penned the ruling on behalf of all three appeal court judges.

"I do not see how it could have been otherwise. The pressing goals underlying the orders could not be attained without limiting gatherings that posed an unacceptable risk to public health."

In a CBC Interview with the Justice Centre, lawyer Marty Moore said, "[The] decision failed to provide the parameters and guardrails to guide the government to respect constitutional freedoms of British Columbians." He claimed people of faith across BC continue to face legal peril under these specific health orders.

But the appeal court decision referenced arguments raised by an intervenor in the case, which discussed respect for pluralism. "A free society is a pluralistic one in which individuals are entitled to pursue, within reasonable limits, their individual beliefs," wrote Fitch. "But living in a community also acknowledges our interdependence."

He claimed that the COVID-19 pandemic highlighted BC's interdependence as a community and forced the province to confront the reality that pursuing some activities, including exercising some constitutionally protected rights, would "increase the risk of exponential spread of the disease and the loss of human life."

On January 8, 2021, the Justice Centre-funded lawyers 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.

On February 10, 2021, Chief Justice Christopher Hinkson of the Supreme Court of British Columbia Hinkson said, "the infringement of those rights by those orders cannot be demonstrably justified in a free and democratic society." While he articulated that Henry's orders infringed on the fundamental freedoms of religion, expression, peaceful assembly and association, in the court's view, Henry deserved deference to her decision-making.

Last March, Justice Centre lawyer Paul Jaffe said the provincial health officer's orders permitted secular gatherings such as in-class education and food distribution for people in need to continue while discriminating against the churches and their congregants' right to freedom of religion. Furthermore, he said the orders reflected a "value judgment."

On March 18, 2021, Hinkson issued a decision dismissing the challenge to ban in-person worship services. The decision ruled the prohibition on outdoor protests from November 19, 2020, to February 10, 2021, unconstitutional and struck it down.

On March 31, 2021, a Notice of Appeal was filed with the BC Court of Appeal. Counsel for the Appellants, provided by the Justice Centre, argued in their written argument that "categorical prohibition on in-person worship services did not minimally impair or give effect as fully as possible to the Charter rights engaged."

However, Fitch argued that the time-limited ban on in-person gatherings for religious worship fell within a "range of reasonable outcomes." The appeal court judges maintained that Henry "made time-limited and setting-specific orders restricting activities she considered most likely to foster the widespread transmission of the virus."

"She was uniquely qualified to make these decisions," reads the decision. "The exercise of her judgment must be afforded deference."