March 8, 2022

The Ontario Superior Court of Justice is the third Canadian court to uphold the constitutionality of severe restrictions on assembled worship services. ARPA Canada has had the privilege of intervening in each of the three cases (the other two being in British Columbia and Manitoba). While we are disappointed in the result from the court, this latest decision shows an acceptance of one of ARPA’s key legal arguments.

Quick Recap of the BC & Manitoba Cases

The first case was heard in British Columbia in March of 2021 after churches had been completed prohibited from gathering since the previous November (even though almost all other sectors were still open, including restaurants and pubs, museums and schools, gyms and swimming pools, business gatherings and movie sets, and more). A few churches had received tickets for gathering. British Columbia’s Chief Justice Hinkson took less than two weeks after the hearing to issue a decision in which he emphasized deference to the Provincial Health Officer and upheld her orders.

The second case was heard in May of 2021 and Manitoba’s Chief Justice Joyal took five months to write his decision. This case did not just focus on restrictions on worship services but involved thousands of pages of evidence relating to the risk of Covid-19 and different approaches to mitigating risk. As in BC, Justice Joyal focused on the deference he felt was owed to the government despite the infringement of the Charter protected freedoms of religion, expression, and assembly.

ARPA’s Arguments

ARPA’s arguments in each of the provinces have been similar. Focusing on our most recent submission, ARPA Canada made three constitutional arguments:

1. That Canada’s constitution and jurisprudence emphasize the existence of and legitimacy of authorities other than the civil government. For example, the Supreme Court of Canada affirmed this institutional pluralism in a case called Reference re Secession of Quebec where they said our “constitution may seek to ensure that vulnerable minority groups are endowed with the institutions and rights necessary to maintain and promote their identities.” These institutions need protection and are owed deference in certain matters.
2. That the court ought to weigh the cumulative impingement of the various fundamental freedoms at issue in this case – including freedom of religion, freedom of expression, freedom of peaceful assembly, and freedom of association. It is these compound Charter violations that need to be justified by the government.
3. Finally, part of the government’s duty to justify the impingement on Charter freedoms includes demonstrating that they chose measures from a range of reasonable alternatives. We argued that a range of reasonable alternatives may include percentage capacity limits. For example, a 25% and a 50% limit may both fall on the range of reasonable alternatives. But a total prohibition is something else entirely and fails this test.

The Results in Ontario

Justice Pomerance found that while the restrictions on gathered worship did violate the Charter’s guarantee of freedom of religion, the government was able to justify it. The fact that this court upheld not only total prohibitions of in-door gatherings but also of outdoor gatherings is especially concerning to us in a seeming rejection of our third argument. Justice Pomerance also rejected our compound Charter violations argument, but with the silver lining that in considering freedom of religion (the only freedom she did a full analysis of) she spent time talking about religious expression (especially singing) and the importance of religious assemblies as a part of that freedom.

A Recognition of the Role of the Church

Where we see the most encouragement is the Court’s interaction with our institutional pluralism argument. Right at the beginning in her preliminary observations, Justice Pomerance lists deference to religious claimants directly after listing deference to the state. In discussing the Charter’s protection of freedom of religion she states that it “contemplates the co-existence of spiritual and civil authority” (para 85) and continues: “The state does not hold a monopoly on helping people cope with the stress of a pandemic. Religious institutions are well equipped to offer non-medical, psychological, and spiritual guidance. Institutional pluralism recognizes the complementary roles assumed by the church and state and calls for mutual respect between their sphere of authority” (para 87).

You can even see the language of sphere sovereignty come out in that quote. She goes on to cite the BC decision’s findings of religious bodies’ sphere of independent authority concluding: “It is that authority that was constrained by religious gathering limits” (para 106). That is, not only is she recognizing that churches have authority, but that this authority was constrained by Covid-19 restrictions.

Nevertheless, the Court finds the Government Limits were Justified

Of the three cases so far, Justice Pomerance gives the most fulsome explanation of the cost that Covid-19 restrictions have on churches as an institution. But she still finds the cost was justified. Much of this comes down to how serious she views the government’s enterprise as she describes, “The government objectives in this case are amongst the most compelling imaginable – the protection of human life in the face of an unprecedented and unpredictable virus, carrying a threat of devastating health consequences” (para 159).

This sounds reasonable on its face, but the problem is that our government is supposed to also have the objective of preserving our fundamental freedoms. Yet that consideration was seemingly lacking from the Ontario government’s response. Justice Pomerance lists the factors that the government of Ontario did consider as they passed restrictions. This is the list the government put in evidence:

1. Limiting the transmission of Covid-19;
2. Avoiding closures while reducing the risk of transmission;
3. Keeping schools and childcare facilities open;
4. Maintaining health care and public health system capacity;
5. Protecting vulnerable populations; and
6. Providing additional support to those disproportionately affected by the pandemic (para 32).

What’s missing from this list is the protection of the fundamental freedoms especially freedom of religion and the public worship of our God. Why is keeping schools open being held in higher regard than allowing religious adherents to live out their religious obligations? And a full embrace of institutional pluralism would have recognized that when it comes to providing support to those affected by the pandemic, the government ought to rely on churches to care for the spiritual needs of Ontarians rather than preventing them from fulfilling their role in our society. As Dr. Schabas said in his evidence before the court, “The fear generated by public health messaging makes religion even more important to the health of believers. Promoting fear and then denying people their means of dealing with fear compounds the harm.” Churches were severely limited in their ability to minister to the spiritual needs of the people surrounding them. In trying to accomplish their objective, the government declined to consider working with what could have been a strong ally.

Conclusion

We’re disappointed with the result of this case – especially that the total prohibitions of even outdoor worship were upheld as constitutional. But these cases aren’t finished yet. The BC appeal is being heard later this month and ARPA Canada will again have the privilege of presenting arguments. We intend to continue to provide the Biblical perspective grounded in Reformed theology about the importance of the role of the church and the government’s duty to respect it even in the midst of responding to a pandemic.

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