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

Many Christians will be very disappointed, perhaps even angry, with this decision. Reformed Christians 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 many Christians in an unfair dilemma, making it very difficult to balance both of these convictions. This decision perpetuates the tension between obeying the government and obeying the requirements of one’s faith.

The churches at the centre of this case argued that these restrictions infringed their freedom of religion, freedom of expression, freedom of assembly, and freedom of association – all four of the Charter’s fundamental freedoms. Chief Justice Hinkson agreed that all four fundamental freedoms were infringed yet decided that these infringements were reasonable given the circumstances. He ruled that these infringements are reasonable and justifiable in “a free and democratic society” (s. 1 of the Charter).

We can be thankful that the Chief Justice recognized the profound impact these absolute prohibitions have on religious communities. But we should also be gravely concerned that he does not seem to have an appreciation for how central gathered worship is to Christians. In the judgement, 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 this fails to appreciate the centrality of gathered worship to Christian 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 due to their expertise, 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.

Unfortunately, this decision risks entrenching unfair treatment against minority religious communities. The provincial leaders of British Columbia prohibit in-person worship services while they continued to permit in-person activities at bars, restaurants, gyms, and most other businesses. Constitutionally protected activities – such as practicing one’s religion at a corporate worship service – are disallowed, while trivial activities – purchasing a pair of socks at any big box store – are permitted. This decision entrenches unfair treatment against religious activities.

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. For example, he does recognize that the government’s authority over religious communities is not absolute, a point that ARPA raised in its submissions. In 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 the manner of worship.” This admission from the court is worth celebrating.

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 British Columbia 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 that 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 reasonably accommodate in-person worship services in their fact-specific cases.

Christians across the province should continue to call for Dr. Bonnie Henry to repeal or relax these restrictions on in-person worship services. 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 should continue to abide by reasonable health protocols to help prevent the spread of the virus, but the freedom to act upon their religious convictions must be recognized by the government.

Last week, the BC Supreme Court spent four days (March 1-3, 5) hearing the case of Beaudoin v. BC, where three BC churches are challenging the Provincial Health Order prohibiting in-person worship services.

The case was heard by Chief Justice Hinkson, the Chief Justice of the BC Supreme Court, and now we await his decision. The Chief Justice had rejected an injunction request from the government in mid-February when the province tried to force the closure of churches that continued to hold in-person worship services contrary to the public health orders.

The Churches’ Case

The lawyer arguing on behalf of the three churches – Paul Jaffe – had the first opportunity to make his case. He emphasized points that Christians (including ARPA Canada) have made repeatedly in the past months:

• It is inconsistent and arbitrary for the government to allow schools to function, businesses to remain open, gyms to operate, and people to congregate at the bar to watch a hockey game, but not allow masked, physically distant individuals and families to gather for worship.
• The orders are overly broad; the government doesn’t need to completely shut down in-person worship services to accomplish its objective of reducing the spread of COVID-19.
• The orders infringe on several Charter rights: the freedom of religion (Charter section 2(a)), the freedom of expression (section 2(b)), the freedom of peaceful assembly (section 2(c)), the freedom of association (section 2(d)), the right to liberty (section 7), and the right to equal treatment under the law (section 15).
• The public health orders also demonstrate how Dr. Henry’s prioritization of values apply to all British Columbians, whether they share her priorities or not; she appears to value school, workouts, or shopping more highly than corporate worship.

ARPA’s Intervention

ARPA Canada is so thankful that the judge also granted ARPA leave to intervene, accepting our 20 pages of written legal argument (you can read them here) and twenty minutes of oral arguments, where we could present legal analysis on particular constitutional points from the perspective of the Reformed community. Geoffrey Trotter, the lawyer speaking on ARPA’s behalf, focused on how the importance of assembling together for worship is a central, deeply-held belief of Reformed Christians. He explained that there is no “magic number” of how many people must be present to fulfill the obligation to gather for worship, but that number certainly is more than zero. He also drove home the point that it is unfair to allow people to engage in a wide variety of activities, but not to attend an in-person worship service.

The Government’s Case

Then, the government’s lawyer stood up. His major argument was a procedural one. Since the churches involved in the case had been granted a so-called “section 43 variance” (to hold outdoor services with maximum 25 people, capped at one hour, with no singing, and with the wearing of masks while remaining physically distanced for the entire service), he argued that the churches could no longer challenge the health order. The only thing they could challenge was the reasonableness of this variance. He suggested the case had to be started all over again, specifically challenging just this variance.

In case Chief Justice Hinkson didn’t accept that argument, the government’s lawyer had a back-up argument. Although the government conceded that they did violate British Columbian Christians’ Charter section 2 fundamental freedoms of religion, expression, and peaceful assembly, he argued that these infringements were reasonable and justified under the circumstances (see section 1 of the Charter). The government lawyer argued that COVID-19, especially the new variants of the virus, posed a grave public health concern. Dr. Bonnie Henry weighed the risks of the virus spreading and the rights of people and judged that an absolute prohibition on in-person worship services was acceptable and necessary.

The Churches’ Reply

In response, Jaffe argued that the judge shouldn’t consider the variance granted to the churches because it was a strategic move to get the case thrown out. Originally, when faced with a number of churches that continued to meet, the government first refused to reconsider their orders, then sought an injunction to shut the churches down, and then, only once it was clear that a court case was imminent, gave a limited variance to the churches (an 11th-hour accommodation of sorts). Jaffe also pointed out that Dr. Henry gave a more generous variance to the Jewish community within a couple of days of asking for it, which was inconsistent and unfair.

In either case, applying for a variance of the health orders was a catch-22. If the churches did not apply for the variance, the government could claim that the churches hadn’t exhausted the internal appeal mechanism before going to court and they must apply for a variance before challenging the health orders. But if they did apply for and were granted a variance, even if it is substantially less of an accommodation than requested, the government could claim that they wouldn’t be able to challenge the health orders themselves anymore because the orders didn’t apply to them.

The Judge’s Comments

The comments and questions of Chief Justice Hinkson were encouraging. He does not consider the case a “battle of the experts” on COVID-19 and rightly considers second-guessing the medical opinion of Dr. Henry to be largely outside his area of expertise. His role is to review the health orders (or variances) to ensure that any infringements on rights and freedoms are “reasonable in a free and democratic society.” In particular, the chief justice voiced concern to the government lawyer that the apparent differential treatment of places of worship being absolutely prohibited from meeting compared to bars and pubs being open for strangers to drink and watch the hockey game together gave him serious concern.

As ARPA Canada’s lawyer Mr. Trotter explained, the judge, who does not necessarily have medical expertise, does not need to substitute his own view on what level of risk is tolerable in the circumstances. But he can just look to Dr. Henry’s choices to see what level of risk she says is tolerable and then insist under s. 15 of the Charter that she extends no less tolerance to risk created by religious gatherings.

Chief Justice Hinkson will take all the arguments into consideration as he crafts his decision in the coming weeks or months. He has a difficult task. We can be thankful that his experience and wisdom will be applied in this case. Continue to pray for this judge as he seeks to dispense justice from the bench.

How Does This Case (And Other Cases) Impact Other Churches?

This particular case (Beaudoin v. BC) involves three churches, plus several individuals, challenging the public health orders, but it is not the only such case in British Columbia. The Catholic Archdiocese of Vancouver and a number of Canadian Reformed Churches have also filed legal challenges of the worship service prohibitions. Although a judge has the power to strike down or modify the restrictions as they apply only to the petitioners before them (e.g. the three churches, Catholic churches, or Canadian Reformed Churches), it is also possible that the decision the judge issues will be general enough to benefit all churches in the province.

Depending on exactly how the judge crafts his ruling, the other two legal challenges may become moot. However, if Chief Justice Hinkson upholds the orders, then the other two legal petitions that have since been filed will give churches a second and third chance to challenge the reasonableness of the accommodations available within the orders. In any case, stay tuned for ARPA Canada’s commentary on the final ruling once it comes out.

Conclusion

Continue to pray for Chief Justice Hinkson as he deliberates on this case in the coming weeks, that he might appreciate the importance of gathering together for corporate worship and protect our freedom to peacefully, carefully, and reasonably assemble to worship God as we are directed to in His Word.