Judge reserves decision on three churches’ challenge of worship ban

The B.C. Supreme Court judge hearing a constitutional challenge of the ban on in-person worship by three Lower Mainland churches reserved his decision Friday after several days of arguments from lawyers representing the churches and the B.C. government.

Chief Justice Christopher Hinkson listened to arguments from lawyer Paul Jaffe of the Justice Centre Constitutional Freedoms (representing the churches) and lawyer Gareth Morley representing the B.C. government.

He gave no date on when his decision will be released.

In court Monday, Jaffe described the health orders as “arbitrary, overbroad, and disproportionate” as they relate to church gatherings, according to news reports.

Morley argued the government’s measures were “taken to protect public health, to protect lives, to protect people from serious illness, and to protect the ability of the health-care system itself to respond, that those are the sorts of measures that can limit Charter rights, including freedom of religion.”

Hinkson pointed out that B.C. health officer Bonnie Henry did not file an affidavit and asked: “Aren’t churches entitled to know why, if you go to the bar and watch a hockey game for an hour or two, you can’t sit in a church for an hour or two? It is a point I struggle with.”

In reserving his decision Friday, Hinkson indicated there are several serious issues for him to address while being mindful of the urgency of the matter.

The government admitted that the prohibition on in-person religious gatherings infringed sections 2(a), 2(b) and 2(c) (freedoms of religion, expression and assembly) of the Charter, but argued the decision was reasonable in the circumstances. 

The chief justice questioned why someone can go to a bar and watch a Vancouver Canuck game, but is not permitted to go to a religious services.

JCCF litigation director Jay Cameron said “given the significant constitutional issues and rights which are at play,” he expects the decision will probably be “on the sooner side than the later.”

Drama also played out on the steps of the courthouse, as activists, pastors, and churchgoers gathered to show their support of the court challenge and disagreement with various government orders related to the pandemic this week.

Among them was Michelle O’Neil, who has been attending services at Langley’s Riverside Calvary Chapel, one of the three churches represented in the case. “We have a right in this country to assemble and we have a right to religion and so we need to stand up and say this is what we believe,” O’Neil told The B.C. Catholic.

She criticized the “out of control” measures taken to block in-person worship and expressed disappointment that so few churches have done what hers has to stay open and challenge the health orders.

The other two churches represented in court were Immanuel Covenant Reformed Church in Abbotsford and Free Reformed Church in Chilliwack.

Shannon and Ashley, who only provided their first names, caught a 5 a.m. ferry from Vancouver Island to attend the rally March 1. The young women said they made the trek because they are passionate about opening churches to public services again.

“They are asking us to stop doing something that we have done for thousands of years, every day, which is worship and engage. In a time of a mental health crisis during the COVID crisis, the church is more needed now than ever because it reaches out to homeless, to people who need light, people who need hope. That’s what the church is there for,” Ashley said.

Shannon said she feels a sense of unfairness that businesses have been allowed to continue operating while religious gatherings have been banned.

“How are bars open? How are strip clubs open? It doesn’t make sense. It’s not rational,” she said. “There is an attack on our faith and we need to stand up for this. It’s modern-day book burning. Our Bibles are being burned, in a sense.”

Speakers at the rally on the court steps included Christian Heritage Party leader Laura-Lynn Tyler Thompson, Action 4 Canada founder Tanya Gaw, and several pastors including Artur Pawlowski from Calgary, who has so far received 23 tickets for breeching pandemic restrictions.

“A ticket means nothing to me. What means everything to me is my freedom,” Pawlowski told the crowd on the court steps as proceedings were underway inside.

“When a government is not doing what the government is supposed to be doing – to protect our rights, to fight for our freedom – we have no other option but to resist the evil in the land.”

Catholic churches are not involved in the court proceedings, but Jaffe told media the judge’s decision could affect religious congregations beyond the ones involved in the constitutional challenge.

Archbishop J. Michael Miller of Vancouver wrote a letter Feb. 19 to government seeking an exemption that would allow Catholic churches to host indoor religious gatherings at 10 per cent of capacity. A few religious groups have already been granted exemptions, including a Jewish congregation on Vancouver Island which can welcome 25 people indoors to observe Shabbat.

The three churches in court this week also received an exemption, given just days before going to court, that allows them to worship with a maximum of 25 participants, outdoors only.

Churchgoers seeking to get back to in-person services are also holding prayer gatherings outside Holy Rosary Cathedral that have attracted hundreds of Catholics weekly since officials introduced the ban Nov. 19. Organizers say they intend to continue peaceful demonstrations until churches open again.

Catholics in Powell River have also begun praying for a return to in-person worship weekly outside Assumption Church, in solidarity with the Vancouver prayer gatherings.

Among the demonstrators outside the court, a man who gave his name only as Joseph said, “The worship of God, the holy sacrifice of the Mass, it’s the most important thing on this earth.”

A regular participant at the cathedral prayer gatherings, he said, “I think we need to stand up for it with prayers and with works.”

Updated March 5.

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