Restrictions on worship services to prevent the spread of covid-19 were constitutionally justified, the Superior Court concluded…
In this week’s newsletter, Acacia Group lawyer John Sikkema summarizes the findings in Ontario v. Trinity Bible Chapel, an important case on the covid-related restrictions placed on places of worship.
Before we get to that, however, we have a few announcements. In the last few months, three additional professionals have joined the Acacia Group.
Elizabeth Lockhart, an experienced estates lawyer, will be advising our clients in regards to their estate planning. She also has a particular interest in helping families who have children with special needs.
Christina Canagasabey practices corporate and charity law and helps our clients meet their corporate law needs, from protecting their brands to applying for charitable status.
Jonathon Van Maren will be working with Peter Stockland, the head of our Strategic Communications division, to provide our clients with media training, help them navigate public relations crises, and provide media relations assistance.
Please don’t hesitate to reach out to them if you have questions or need their help.
Jonathon recently wrote a beautiful piece about the power of literature in an article he called The Sheer Magic of Books. After reading it, you’ll recommit to that stack of books that has been waiting for you.
Examining Ontario v. Trinity Bible Chapel
By John Sikkema
Restrictions on worship services to prevent the spread of covid-19 were constitutionally justified, the Superior Court concluded, in Ontario v. Trinity Bible Chapel (2022 ONSC 1344).
In this case, a group of Ontario churches and individuals challenged the government of Ontario’s attendance limits on religious gatherings. They argued that the limits were “unnecessary, arbitrary, and overbroad” and that they violated Ontarians’ freedom of religion. The government argued these measures were a necessary response to covid-19 and constitutional.
The Court was sympathetic to the “complex challenges” facing public health officials and characterized the virus as a “moving target” and a “shapeshifting enemy combatant” that has been hard to “pin down” and “defeat.”
The Court concluded, based on the evidence presented in the case, that the risk of covid infection increases when people congregate for long periods, and when they sing or speak loudly. The Court considered restrictions on religious gatherings to be a legitimate part of Ontario’s “holistic strategy with many interlocking parts” to fight viral spread.
When it came to the evidentiary questions of whether religious gatherings posed a greater risk than retail or other settings that had comparatively lesser restrictions, the Court demurred. Its job, it said, is not to be an “armchair epidemiologist” and resolve such debates among experts, but to decide whether the government had “scientific support for the precautionary measures that were taken” at the time those measures were taken.
The Court noted that the parties in this case had “flouted the restrictions.” This, the Court comments, is “a serious matter, but it does not bear on the constitutional analysis”.
Technically, this is true – whether a law restricting freedom of religion is constitutionally valid or invalid does not depend on whether the party challenging that law has violated the law or not. Still, Charter rights claimants should be careful about whether and how they engage in civil disobedience. It matters for reasons of morality, public witness, and reputation, to be sure. And despite what the court says here, it likely also matters legally. While the churches did not challenge all of the covid-related restrictions – only stringent capacity limits – their “flouting” of rules generally lends credence to Ontario’s argument that it had to severely restrict religious gatherings because high-risk activity (e.g. prolonged proximity to others while singing, social mingling) is more likely to take place in such a setting as compared to others (such as at Walmart).
In fact, the judge says so directly in reaching the conclusion that religious services posed greater risks:
Other factors contribute to the risks posed by religious gatherings. Persons known to each other, and bound by a common faith, may be tempted to greet each other with hugs or handshakes. The more people that congregate in one place, the more difficult it is to monitor and enforce physical distancing requirements. The best evidence of this may lie in the photographs and videos of the moving parties’ own prayer services. Admittedly, these photographs and videos captured activity during periods of non-compliance with restrictions. Nonetheless, if a picture is worth a thousand words, these depictions say a great deal about what can happen at a large, dynamic, participatory prayer service. The risk is amplified where, as here, the pastors of the churches have expressed a disinclination to enforce physical distancing requirements.
Would-be Charter litigants should understand that their conduct helps construct a narrative, and the more unsympathetic or unreasonable they appear to outsiders as characters in that narrative, the harder it is for an outsider – including a judge – to take their side (and defend taking their side in writing, as a judge must do). So, if you decide civil disobedience is necessary (for religious or conscientious reasons), you might consider how, for example, you can simultaneously show maximal respect for the civil government and any legitimate goals it may have, provided there is a way for you to contribute to those goals. A church that can show it was sensitive and responsive to the government and community’s concerns will be a more sympathetic litigant. Being an “exemplary litigant” is strategically important.
If you face a situation where you feel that civil disobedience or a pre-emptory constitutional challenge may be necessary, you should consider developing a legal and communications strategy as early in the process as possible.
But back to the Court ruling. The Court starts off strong in stating the impact of the restrictions on the claimants in this case:
Gathering restrictions prevent congregants from gathering as a single group in one place, at one time, for communal worship. This burden impacts directly and significantly on the ability of the churches and their congregants to manifest and practice their religious beliefs.
But the Court ultimately found that the government’s restrictions, if not perfect, were reasonable in the circumstances and entitled to judicial deference:
I agree with the claimants that the Constitution does not take a holiday in times of crisis. However, Ontario did not disregard the impact of measures on religious freedom; nor did it opt for the simplest and most draconian line of pandemic defence – blanket shutdowns for extended periods. The measures imposed by Ontario were carefully calibrated and recalibrated on a regular basis to reflect the effects of variants of concern, vaccination rates, and the demand on hospitals and ICUs. These measures were rationally connected to a pressing and substantial objective and were proportionate in their effect. They are properly upheld under s. 1 of the Charter.
This case expands the list of losses for churches challenging the constitutional validity of covid-related restrictions in Canada. No such challenge has yet succeeded. Next week, the British Columbia Court of Appeal will hear the churches’ appeal of their loss in Beaudoin v British Columbia, 2021 BCSC 512. The Acacia Group will continue to follow this and other cases closely.
(Note: none of the parties in the cases mentioned were represented by the Acacia Group)