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Judge denies B.C.’s request for injunction against churches challenging COVID-19 health orders

Friday, February 19, 2021 @ 12:52 PM | By Ian Burns

The chief justice of British Columbia’s Supreme Court has denied the province’s request for an injunction against three churches that have challenged the constitutionality of the province’s public health rules which prohibit in-person religious services.

Last month, three churches in B.C.’s Fraser Valley — the Riverside Calvary Chapel in Langley, the Immanuel Covenant Reformed Church in Abbotsford and Free Reformed Church of Chilliwack — filed a challenge arguing provincial health officer (PHO) Bonnie Henry’s order to suspend in-person religious gatherings and worship services unfairly restricts freedom of religion and association.

In response, the province asked for the churches to be closed until the case was decided. But in a decision issued Feb. 17, Chief Justice Christopher Hinkson wrote that he had “reservations” an injunction alone, without enforcement by the B.C. Prosecution Service, would overcome the “deeply held beliefs of the petitioners and their devotees,” adding there were other remedies available to the government.

“I am left to wonder what would be achieved by the issuance of an injunction in this case,” he wrote in Beaudoin v. British Columbia 2021 BCSC 248. “If it were granted and not adhered to, would the administration of justice yet again be brought into disrepute because the B.C. Prosecution Service considers that it would not be in the public interest to prosecute those who refused to adhere to the orders sought from this court?”

Justice Hinkson wrote he did not condone the churches’ conduct to contravene the orders but noted the province and Henry “differ from many litigants who seek injunctive relief.”

“In particular, they do not necessarily require the assistance of the court to enforce their legislation,” he wrote. “The alternate remedies available to the respondents are a factor to be considered in the exercise of my discretion. The challenged orders remain extant unless and until set aside or overturned by this court.”

The churches’ counsel Paul Jaffe said he was grateful the court took such a deep dive into the facts and sided with his argument that the injunction was unnecessary.

“The Crown always has all the statutory power in the world to enforce the closures but instead has come to the court for discretionary relief, and [Chief Justice Hinkson] has said you haven’t used the powers you have already got,” he said. “I think the court wants to know if an injunction is granted the Attorney General will have the appetite to enforce it, because otherwise the court looks bad — but when the Attorney General’s Office itself evidently doesn’t consider those worth addressing with the powers it already has the judge is understandably concerned the court is not here to be doing what the Attorney General can do directly.”

Jaffe said the province already has “some pretty hefty arrows in its quiver if they choose to draw them,” including fines of up to $3 million and 36 months in jail for creating a public health hazard. So far, the churches have faced fines but nothing comparable to that level.

“They have been issued tickets and the police have attended their churches a few times — it has been kind of stressful and unfortunate, but the police are doing their jobs and my clients have had to deal with it,” he said. “But they are facing some pretty hefty penalties.”

In response to the court’s decision, Henry said she respected it but added “everyone must continue to follow the [health] orders” while the larger challenge is heard.

“Based on the science and evidence, I put public health orders in place to protect faith leaders, their congregations and the communities in which they worship. These are legal orders that apply to everyone in our province, and most churches are following them,” she said. “I am confident that all PHO orders are in accordance with the law, including the Canadian Charter of Rights and Freedoms, and we look forward to the conclusion of the larger case that remains before the courts.”

The constitutional challenge is scheduled to be heard from March 1-3, and also includes a case involving a man who was given a ticket after he held a public protest against COVID-19 restrictions. Jaffe said the Crown has conceded the orders do infringe some constitutional rights, but the upcoming hearing will revolve around whether it can prove those restrictions are a reasonable limit under s. 1 of the Charter.

“In-person worship is a deeply held fundamental belief of my clients and they just can’t do it on Zoom, and so they are fighting for what they strongly believe in,” he said. “That is their prerogative and thankfully we still have a court system that allows us to do that.”

The B.C. Attorney General’s Office declined a request for comment.

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