Chief Justice Christopher Hinkson (Office of the Chief Justice)

Chief Justice Christopher Hinkson (Office of the Chief Justice)

B.C. is ‘stereotyping’ churches as riskier for COVID than other spaces, lawyer argues

Judge said that freedom of expression, religion are not at issue in the case

A lawyer representing churches in their battle to fight B.C.’s COVID restrictions on in-person worship took aim at the province Tuesday (March 2), arguing that officials are singling out churches as being more dangerous than other spaces.

“Gatherings of people don’t become more risky based on the subject of discussion,” argued Paul Jaffe in B.C. Supreme Court. He pointed to bars, restaurants and stores that remain open, while in-person church services have been banned since November. Religious institutions themselves remain open for solo visits.

The three-day trial, expected to end Wednesday, is being brought by the Justice Centre for Constitutional Freedoms, which represents a group of church and individuals in the province.

Jaffe said that a very small number of cases have been connected to religious settings, citing churches that have taken similar safety measures as establishments that are allowed to remain operate.

That, Jaffe, argued, limits freedom of expression.

“You don’t target people based on what they’re saying,” he said.

But B.C. Chief Justice Christopher Hinkson said that freedom of expression and religious freedom aren’t what is at issue in this case in his eyes.

“They’re free to have whatever religious views they wish,” Hinkson said. “No one is saying they’re not allowed to express their views.”

However, lawyer Gareth Morley, who works for the legal services branch of the Attorney General Ministry, said that comparable activities in religious settings are allowed to continue, including faith-based schools, Sunday school and limited religious marriage ceremonies.

Jaffe argued that the form of expression was also important. He said that while virtual church services exist for congregants, in-person gatherings are “absolutely integral to their faith” and that “it’s very painful to these people” to be separated from in-person worship services.

Morley said it is agreed that the province is in the middle of a pandemic.

“And measures 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.”

Henry has a duty under the Constitution to “proportionally and reasonably” limit freedoms by preventing the gathering of people to ensure their health and safety, Morley said.

Chief Justice Christopher Hinkson asked who decides whether the limits are proportional or reasonable, adding that he wants to understand how the provincial health officer is making her decisions.

“Aren’t the 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.”

Hinkson said he understands Henry has a difficult job, but she hasn’t explained why or how she is making the decisions.

“If she chooses not to share her thought process with the court, there’s no oversight,” he said.

Morley said the decisions are made after careful review by health officials and experts.

So balancing religious rights and protecting people from an “out-of-control epidemic” is a matter of judgment, he said, adding that Henry met with religious leaders and health officials while making her decisions.

READ MORE: B.C. churches in court to attempt to overturn ban on in-person services

– with files from The Canadian Press


@katslepian

katya.slepian@bpdigital.ca

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