The lawyer representing B.C. churches that have continued to hold services in violation of health orders said that the rules were over-broad, arbitrary, and disproportionate in a hearing Monday in B.C. Supreme Court.
A lawyer for the Justice Centre for Constitutional Freedoms is representing a group of churches and individuals, claiming that some of B.C.’s public health orders barring many gatherings are unconstitutional.
“Who are you saying is being discriminated against?” B.C. Chief Justice Christopher Hinkson asked as lawyer Paul Jaffe argued.
Jaffe replied that churches are subject to a different standard than other, secular gatherings. Later in the proceedings, he explicitly said that retail stores, schools, and pubs are allowed to have people in them but the moment a gathering becomes worship, it’s suddenly more dangerous.
“It’s entirely arbitrary,” Jaffe argued.
But Hinkson pushed back on some of Jaffe’s arguments later in the morning, asking whether the courts were equipped to rule on Dr. Bonnie Henry’s expertise as the province’s chief medical health officer.
“She recognizes the Charter must be applied,” Hinkson said. “She says, bearing that in mind, I think from a public health interest, only certain things can happen. Now, what’s wrong with that from a correctness standard?”
Jaffe continued to argue that there was an arbitrariness between the way the health orders were being applied to religious and secular gatherings.
“What business does this court have telling Dr. Henry how to make decisions about public health?” Hinkson asked.
The judge also noted that the change in policy in November that shut down in-person church services was not an “on-off switch.”
Churches can still hold virtual meetings, Hinkson noted, just as the court hearing was being held virtually.
He also questioned Jaffe about the lack of evidence of transmission of the virus in churches.
“If the churches have not been operating, the vast majority of them, how could there be evidence their operation is creating problems?” Hinkson said.
The churches can show there was minimal risk before the November shutdown, Jaffe said.
Also involved in the petition are a few people who were ticketed for holding outdoor protests in B.C., although the rules have now been changed to accommodate outdoor protests.
After suggesting that Henry was biased against religious organizations, Gareth Morley, the lawyer representing Henry and the B.C. Attorney General, objected, saying there was not a shred of evidence before the court that Henry had any bias.
“In my submission, he’s playing to the gallery,” Morley said.
“Well Mr. Morley, the gallery aren’t going to decide this case,” Hinkson replied.
Later Jaffe said he was not trying to imply Henry was acting in bad faith in any way.
Jaffe and lawyers representing the B.C. Attorney General and Henry have already clashed in front of Hinkson, when in March the government sought an injunction to block or even arrest people from attending the services.
Hinkson rejected the government’s request, saying the health authorities and police had enforcement powers they hadn’t even used yet, and therefore the courts had no need to issue an injunction.
So far, police have issued tickets but prosecutors have not announced more serious charges against the churches. Jaffe mentioned that the RCMP in Chilliwack have apparently recommended that charges be laid under the health orders against at least one local church.
Last week, the government offered a limited in-person outdoor attendance option to the churches, but Jaffe said it didn’t go far enough.
It would allow outdoor services of no more than 25 members, with no singing, mandatory masks and no socializing after services, something Jaffe said was less than the churches were allowed during a brief period during the pandemic when in-person worship was allowed.
– More to come