Updated Jan. 18. Two days after this article was published, Sean Murphy received a letter from the office of Assistant Deputy General Barbara Carmichael stating: “I can assure you that in making the Face Coverings Order, the Provincial Health Officer considered the particular risks of infection with COVID-19 posed by each of the types of human interaction to which the Order applies, including worship services, and also took into consideration the interests of British Columbians which are protected under the British Columbia Human Rights Code.” The full response can be read on Murphy’s website.
I have been lifted up every December since 1993 by the enthralling crescendo of the entrance processional O Come, Emmanuel at the Powell River Academy of Music’s annual Christmas concert. Sorely missed in 2020 because of pandemic restrictions, the Academy’s choirs were back for Carols by Candlelight in December.
I promptly bought my ticket and joined a large and happy fellowship for the first of three concerts in the city’s venerable Dwight Hall. The choirs once more entered singing O Come, Emmanuel,” celebrating the spirit of the season in a performance lasting almost two hours. Singers freed from assembly restrictions and the muffling effect of masks sang joyfully, and everyone in the hall was happy to hear them again, even relieved to hear them.
So was I. But I also remembered the public health order issued by Dr. Bonnie Henry on Dec. 3, 2021, so I re-read it. The Academy Choirs had fully complied with it. Choirs singing in public venues like shopping malls or community halls don’t have to wear masks.
Only choirs singing in religious worship services must wear masks.
I asked myself how choirs singing in a church on Sunday can be a public health hazard but not when they sing in Dwight Hall on Friday.
Finding no rational justification for the distinction, I asked myself another question: Why issue an order that so clearly discriminates against religious believers?
I concluded it must have been a mistake. The order is complex and 16 pages long and the discriminatory effect of the choral singing provision was probably overlooked. I wrote Dr. Henry, asking her to amend the order, either extending the masking requirement to include all choirs – religious and non-religious – or rescinding the provision that targets only religious choral singing.
She did not acknowledge or reply.
Since the order itself explained that her staff could not manage the volume of requests for reconsideration of her orders, I wrote Attorney General David Eby, with a copy to Health Minister Adrian Dix, asking him to assist Dr. Henry. Neither acknowledged the correspondence. Nor, for that matter, did my own MLA.
The provincial health officer, attorney general, or health minister could have publicly acknowledged the mistake and moved to correct it, promising in the interim that the discriminatory provision targeting religious worship services would not be enforced. That would have addressed the issue, since good faith mistakes are excusable.
But refusing to correct a mistake is not excusable, and continuing to discriminate against religious believers is not justifiable, even if public officials make a mistake and claim they are too busy to correct it. A government policy that says “we prosecute religious choirs only” is just as objectionable as a “we serve whites only” restaurant policy. Officials must be held to account when they are responsible for enacting discriminatory policies
An attempt to enforce the discriminatory provision in the order would probably not survive a challenge under the Charter of Rights and Freedoms, but as long as the current order stands, enforcement could be attempted, disrupting religious worship services and drawing police into ultimately pointless confrontations. The tickets they issue would probably be withdrawn, but only if religious believers hire lawyers and take time off work to attend court – a most objectionable form of discriminatory administrative harassment.
On Jan. 7, I filed a complaint with the BC Human Rights Tribunal, requesting a declaration that the public health order is discriminatory and an order to stop the discrimination. It leaves open the prospect of mediated resolution.
It is unfortunate that a human rights complaint has had to be submitted to the overburdened Human Rights Tribunal. It would not have been necessary had public officials demonstrated good faith by acknowledging and correcting the problem when it was brought to their attention.
Sean Powell is a parishioner at Church of the Assumption in Powell River and a former western director of the Catholic Civil Rights League. For up-to-date information visit charter1215.wordpress.com or follow Charter1215_bc on Twitter.
