Mar. 19, 2021

Why the distinction, your Honour?

Many people read this column. from all over the world. For example, yesterday there were readers from nine countries besides Canada. 

This blog is heavily North America centric although I do try to go further afield on important matters. And with my local (British Columbia/Canadian) articles I hope people in other countries get a little peek into the functioning of this country. 

Many, I am sure, see Canada as this nice country that is a real functioning democracy. And in many ways it is. But it has its flaws and I try to highlight them from time to time with the intent of hopefully making the country better. 

I spent 17 years in Provincial Politics serving for 10 years in the highest political post of Premier. After that I operated, with my wife, a consulting company that did business in North America with some clients in Western Europe. 

Right now, like many places, we are in the middle of a pandemic and governments have imposed various rules and regulations; often without very little consultation and often in a discriminatory fashion. 

Canada is a Federation composed of 10 Provinces, three territories and a federal government. Under our Constitution (Section 92(7)) health is a orovincial matter. Hence, you see all provincial governments imposing rules and regulations which are supposed to combat the Wuhan virus. There are mask wearing, social distancing, limits on businesses etc. 

As part of our Constitution there is the Charter of Right and Freedoms in which I was involved through the Province of Newfoundland and Labrador’s delegation to the Cconstitutional conference in November, 1981. 

Important provisions were outlined in this Charter which were previously traditions or conventions as in the U.K. 

For our purposes in the current virus discussion here are some of the important ones:

Fundamental freedoms

2. Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion;

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

(c) freedom of peaceful assembly; and

(d) freedom of association.

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

I live in British Columbia and this provincial government imposed “public heath orders”. Some of them were quite harsh, especially as it relates to religious matters. Here are the orders verbatim regarding churches and other secular activities:

“Inside in-person religious gatherings and worship services of any size are prohibited.

You must not attend a service at a church, synagogue, mosque, gudwara, temple or other place of worship

Religious services can continue using remote or virtual attendance options, like Zoom or Skype

You can still visit your place of worship for individual activities such as guidance from spiritual leaders, contemplation or personal prayer.

Religious leaders may attend the home of a member of their religious community to provide religious services to the occupant.’

“Retail businesses (including malls) are required to:
Establish capacity limits based on five square metres of unencumbered space per person

Post occupancy limits

Where practical, post directional signs to keep people moving in the same direction and not congregating.

“Indoor low-intensity group exercise is allowed. Low intensity group exercise does not cause a sustained and accelerated rate of breathing and does not involve close contact with other people. These include:

Yoga (Hatha)
Low intensity exercise machines and cardio equipment
Light weightlifting
Low-intensity Barre classes

“Restaurants, pubs and bars can continue to operate if they have a COVID-19 Safety Plan and employee protocols in place.”

As no doubt you have noticed churches are treated differently than the other mentioned activities. The orders (The Public Health Office, The Government) could find ways to open some secular activities but no ways to open Christian Churches. 

A number of individuals and churches went to court. The Justice Centre for Constitutional Freedoms, a national non-profit, independent organization, federally registered charity, headquartered in Calgary, Alberta argued their case. They are also involved in cases involving the Provinces of Alberta. Saskatchewan,, Manitoba and Ontario. 

The Court on Thursday upheld the public health order against the churches but allowed the other public health orders to stand permitting the other activities to remain open. 

In responding to the Court’s decision to uphold the health order against the Churches The Justice Centre said this:

‘The B.C. churches challenging the Provincial Health Orders assert that they have gone to extraordinary lengths to comply with onerous health guidelines, including limiting attendance to no more than 50 persons, pre-registering attendees, rearranging seating to ensure physical distancing, providing hand sanitizer and masks, and enhancing cleaning and sanitizing procedures.

Some of these churches’ members cannot access online services, and for many in these faith communities, gathering in-person is essential to their spiritual and emotional well-being. Affidavits have been filed attesting to the negative effect prohibiting in-person gatherings has had on individuals, including loneliness, depression, anxiety and fear. Although support groups are permitted to meet, Dr. Henry’s orders prohibit faith communities from gathering for any “worship or other religious service”.

To justify their order for an injunction, the B.C. government cited 180 purported Covid cases associated with religious gatherings in the province. To date, there have been nearly 90,000 over-all COVID cases in B.C. The Justice Centre provided the Court with more than 1,000 pages of expert evidence, including sworn testimony from an experienced and credentialed Epidemiologist and former Chief Provincial Medical Officer of Health, as well as from an Infectious Disease Specialist.

The B.C. Government allows hundreds of people to gather at any given time in a single big box store. Liquor stores and marijuana stores remain open. The government allows residents to gather and seat six at a table at bars and restaurants. But to members of faith communities, Dr. Bonnie Henry has stated: “Do not attend a service at a church, synagogue, mosque, gurdwara, temple, or other places of worship”.

Citizens who have gathered to peacefully protest the devastating impact of Covid lockdowns have also been ticketed for the exercise of their right to peaceful assembly, expression and association – as protected by sections 2(b), (c), and (d) of the Canadian Charter of Rights and Freedoms – as a result of Dr. Henry’s Orders.

Tickets have also been issued to churches which have gathered in accordance with their sincerely-held religious beliefs. Since November 19, 2020, in-person worship services – which are protected by the freedom of religion under section 2(a) of the Charter – have been prohibited entirely, regardless of the extra safety measures implemented by faith communities.

The petition filed with the Court challenged the Orders on the basis that they unjustifiably violate the rights and freedoms of B.C. residents as protected by the Charter, and are thus unconstitutional. “Freedom of conscience and religion” and “freedom of peaceful assembly” are two of the fundamental rights protected by section 2 of the Charter.’

The only place that the judge addressed the religious vs secular issue was in point 229 of the judgment less than 50 words on a 60-page judgement: 

“229] The fact that some religious activities are restricted and some secular activities are not is not necessarily evidence of arbitrariness. There needs to be a comparison of comparables and a demonstration that there is no rational basis for the distinction. That is not present here.” 

The judge presents no evidence and there is none throughout the judgment from the Government. Evidence exists that churches play a very minor role. A Washington State Department of Health study, December 17, 2020, showed heath care as being the highest sector for transmission, 24 per cent, and retail second at 10 per cent. Churches were below one per cent. I suspect British Columbia, just next door, is no different. 

Frankly, the judgment is all about a pandemic and churches – the proper analysis of issues among the various sectors of society was not addressed and that is the whole point: why other gatherings, retail and bars and clubs, malls and other retail are treated differently, more favourably than Church gatherings? The onus should be on the Government to prove that this different treatment is justified. 

I have been in restaurants and bars and Costco and malls over the last two weeks. Why provisions cannot be put in place to allow religious worship as are put in place for alcohol drinking and eating and shopping escape me. 

It is amazing to me that constitutionally-protected activities are shutdown while other activities which are not constitutionally protected activities are allowed to open. 

Additionally, on such an important issue one would think that a panel of Judges would be constituted to hear the case, not one judge. 

I am hopeful this decision will be appealed, it should not stand!

Judge, why the distinction?