A British Columbia Supreme Court judge has reserved his decision on a request from three churches to issue provincial health orders preventing them from doing face-to-face services.
Chief Justice Christopher Hinkson said on Friday that he did not want to be unnecessarily late and that he valued the urgency of the matter from the petitioners’ point of view, but that he should think the case carefully.
“You have presented me with very difficult problems to solve and I will take the time to try to solve them fairly.”
Hinkson gave no date on when he would publish his decision.
Jacqueline Hughes, BC’s attorney general’s attorney, told the court that orders from provincial doctor Bonnie Henry, a health officer, do not express or prohibit all face-to-face religious services, and Henry has invited requests for exemption.
Petitioners include Riverside Calvary Chapel in Langley, Immanuel Covenant Reformed Church in Abbotsford and Chilliwack Free Reformed Church.
Hughes said churches are now allowed to hold face-to-face services for up to 25 people, outdoors and with security measures, through a “difference” from Henry’s orders granted late last month.
Individual worship and events are also allowed to be conducted, according to orders, according to conditions, he said, while weddings, funerals and baptisms cannot include more than ten guests.
Henry has the legal powers during an emergency to issue orders he believes are reasonably necessary to prevent and mitigate damage from a health hazard, including restricting entry to a site, Hughes said.
The top doctor in the province has made efforts to consult religious leaders, weighing their letter rights against data on COVID-19 cases in the BC and explaining their reasoning in public and written meetings, she said.
“Opinions are not evidence”
Paul Jaffe, the petitioners’ attorney, has argued that Henry’s orders reflect a value judgment. On Friday, he said his clients have been discriminated against compared to other groups.
Orthodox Jewish synagogues were granted differences to hold interior services on Saturday during the time Henry and the attorney general asked for a court order to prevent his clients from worshiping him personally, Jaffe said.
Hinkson rejected the province’s ban request last month, saying the provincial health officer has the means under the Public Health Act to enforce the rules without a court order.
Jaffe told the court on Friday that there has been no change in the degree to which Henry’s orders arbitrarily violate his clients’ right to freedom of religion since they were made last November until now.
“All the Crown has been able to prove are Dr. Henry’s opinions,” he said. “But opinions are not evidence. You need convincing, convincing evidence to justify those opinions and there is simply none.”
He told the court earlier this week that his clients have taken security measures similar to those approved by the provincial health officer in the places that remain open.
Jaffe is collaborating with the Center for Justice for Constitutional Freedoms, a Calgary-based legal defense group that is also asking the court to dismiss tickets of up to $ 2,300 each for alleged violations of public health orders.
Hughes told the court Friday that “there is no absolute rule that favors constitutionally protected interests over those that are only urgent and substantial” on issues such as the petition before us.
The only requirements, he said, are that any balance achieved be reasonable, that it be adapted to “sincere religious practice” when possible, and that religious and non-religious beliefs be treated in a neutral manner.
“We say Dr. Henry understood these requirements and applied them to the best of her ability,” Hughes told Hinkson.
Henry’s mandate to protect public health is a balancing act, he said, and “statutory rights do not go beyond the public health mandate he has and continues to exercise throughout this pandemic.”