Members of three churches in Langley, Abbotsford, and Chilliwack should be banned from attending services by an injunction because of the ongoing threat of the COVID-19 pandemic, a lawyer representing the Attorney General of B.C. and Dr. Bonnie Henry argued Friday morning in B.C. Supreme Court in Vancouver.
“There is no question we are facing a continuing problem,” said lawyer Gareth Morley, arguing before Supreme Court Chief Justice Christopher Hinkson.
The government is seeking the injunction to allow police to bar or potentially arrest people from gathering in Langley’s Riverside Calvary Chapel, Immanuel Covenant Reformed Church in Abbotsford, and the Free Reformed Church of Chilliwack.
All three churches have continued to hold services in defiance of the bans, and in January they petitioned the court to lift orders that banned or restricted public gatherings, “as they unjustifiably infringe the rights and freedoms of the petitioners [the churches] guaranteed by the Canadian Charter of Rights and Freedoms,” according to the claim filed by their lawyers.
The B.C. government and Henry, as Provincial Health Officer, have argued the restrictions are necessary to control the pandemic, which has killed more than 1,200 British Columbians over the past year.
Lawyer Paul Jaffe, representing the churches, said there was no scientific evidence that the churches were a COVID-19 risk, and that churches can’t do what they do without in-person services.
“The evidence you have doesn’t even mention the petitioners [the churches], doesn’t even mention the way the petitioners have been conducting their services,” Jaffe said.
The churches are using physical distancing, hand sanitizer, and contact tracing, Jaffe said.
In fact, he argued that the injunction should be denied because the province’s case is so weak that it has no chance of winning the hearing on the overall petition scheduled for March.
Jaffe also argued that one of the exemptions for meetings is for support groups, and that the churches function as support groups.
“So it’s already exempt from the banning, under this order.”
The ban on religious gatherings was “vindictive,” Jaffe suggested.
“My clients can be detained on an officer’s belief that they are going to pray. It’s incredible,” he said.
Justice Hinkson quibbled with some of Jaffe’s legal arguments.
The province’s lawyers argued that while the churches have every right to challenge the ban in court, until they win they have to abide by the law of the land, and the injunction is required to ensure that.
“Dr. Henry had to weigh the public health needs against the undeniable interests that everyone who has religious beliefs has in religious practice,” Morley said.
The injunction is needed, Morley argued, because the churches have continued meeting despite receiving tickets from the police on several occasions.
“Right now they do not have the authority to do anything other than issue a ticket,” Morley said. It’s not within Henry’s power to order arrests under her own health orders, he noted.
He also argued that not only is there evidence backing up the government’s position, there have been transmissions in churches in B.C., including at least one death, that took place under the previous distancing restrictions that were in place before November, which the churches argue make them safe.
Morley also criticized Jaffe’s arguments to the court for comparing the risk to traffic collisions – Morley said that traffic accidents aren’t contagious.
What’s at stake is more people in the community getting sick and some people dying, he argued.
Hinkson questioned some of Morley’s arguments, and noted that Jaffe, representing the churches, would ask why churches are treated differently from restaurants or health clubs, for example.
Morley said Henry has stated that those types of gatherings are different, but that whether a gathering is religious or not doesn’t inform the reasoning for the health orders.
“Religious schools are treated the same way as secular schools, religious weddings are treated the same as secular weddings, religious funerals are treated the same way as secular funerals,” Morley said.
For all the discussion around scientific evidence, Hinkson’s main concern seemed to be why the government needed the court’s help in enforcing regulations.
Hinkson noted that some recent injunctions granted by B.C. courts have then not been enforced because the Public Prosecution Office decided it wasn’t in the public interest.
“If the government are going to come to this court and ask for assistance… I have to have some confidence that if I grant an order it’s going to get dealt with and enforced by the government,” said Hinkson. “And if it’s not, why would I grant the order?”
“You ask us for assistance, and we give it, and you won’t back the courts up,” Hinkson added, saying that such a situation creates an issue of the reputation of the administration of justice.
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Morley said the government was seeking the injunction from the courts partly because the issues at stake are so fundamental, including religious freedom.
“This is not just a matter of somebody having a rave in their basement,” Morley said. The government would feel free to crack down on that using its existing tools, he said.
“The difference here is there is a matter of principle that is being adjudicated before you,” Morley told Hinkson.
He said that the church members are law abiding people and they have not said they won’t obey a court order.
“Well, they haven’t said they will, either,” the judge replied.
There was no ruling by the end of the day, despite the fact that church could be held again on Sunday.
“I am not going to give judgment today,” Hinkson said at the conclusion of the hearing.
“I am not condoning any breaches of any orders,” he added, and said he will issue his ruling on the injunction at 10 a.m. on Wednesday, Feb. 17.