Appeal of Ban on In-Person Church Gatherings Filed in BC Supreme Court

April 2, 2021 Updated: April 4, 2021

A lawyer representing three Fraser Valley churches has filed a notice of appeal in B.C.’s top court over the province’s ban on in-person religious gatherings.

B.C. Supreme Court Chief Justice Christopher Hinkson ruled on March 18 that the order issued by B.C. Public Health Officer Dr. Bonnie Henry banning in-person religious gatherings infringed on Canadians’ religious rights protected by the Charter, but that the infringement was reasonable.

Meanwhile, Hinkson struck down public health orders banning outdoor protests.

The Justice Centre for Constitutional Freedoms (JCCF), which had filed the legal challenge on behalf of three churches and four individuals, said it was pleased with the ruling on outdoor protests but disappointed in the court’s dismissal of the challenge to the prohibition on in-person religious gatherings.

“The B.C. 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,” the statement said.

JCCF lawyer Paul Jaffe, who represents the group of petitioners—including three Fraser Valley churches that had continued to hold services in defiance of the public health order—filed a notice of appeal on March 31 with the B.C. Court of Appeal.

Jaffe told Global News that his clients are not questioning whether Henry’s public health order was reasonable in responding to a surge in new infections.

“What was at issue, though, is that the orders distinguish between religious and secular gatherings, a distinction which was an issue, and unfortunately, the judgment didn’t really address that,” he said.

Jaffe said that there no scientific proof showing different levels of virus transmissions between religious and secular environments, and the fact that the B.C. government allows people to gather in places such as schools and grocery stores while banning in-person services in churches amounts to religious discrimination.

In an interview with Rebel News, Jaffe said that when governments limit constitutional freedoms, it has to be shown “at a reasonable limit, prescribed by law, and demonstrably justified in a free and democratic society.” He said Hinkson applied a “lower test” to the Crown, saying that as long as he can’t find that Dr. Henry’s decision-making was exercised unreasonably, whether he agrees with it or not, he can’t set it aside.

“One of the most troubling things about that is that it allows for governments to infringe constitutional rights through subordinate legislation, through unelected people, in a process that has no transparency,” he said.

Jaffe said if Hinkson’s judgement stands, it will give governments incentive to infringe upon civil rights.

The JCCF says that since Nov. 19, 2020, in-person religious services—which are protected under Section 2(a) of the Charter—have been prohibited entirely, regardless of the extra safety measures implemented by faith communities.