Dr. Bonnie Henry gives her daily media briefing regarding COVID-19 for the province of British Columbia in Victoria, B.C., Monday, December 7, 2020. THE CANADIAN PRESS/Jonathan Hayward

Dr. Bonnie Henry gives her daily media briefing regarding COVID-19 for the province of British Columbia in Victoria, B.C., Monday, December 7, 2020. THE CANADIAN PRESS/Jonathan Hayward

Judge questions court role in managing B.C. health orders banning church gatherings

The court is ‘rather ill equipped’ to second-guess health decisions by experts equipped to make them

The chief justice of the British Columbia Supreme Court says the provincial government is putting the court in an “impossible position” by asking for an injunction ordering three churches to stop in-person services before their challenge of public health orders is heard.

Chief Justice Christopher Hinkson said Friday health orders already prohibit such gatherings and it’s within the power of provincial health officer Dr. Bonnie Henry and the government to escalate enforcement without a court order.

“There are alternate remedies,” Hinkson told Crown prosecutor Gareth Morley during a hearing.

ALSO READ: Lawyers spar over injunction against Fraser Valley

“I shouldn’t be doing Dr. Henry’s job. If she wants police to have the ability to arrest people, the order can be amended, can’t it?”

The court is “rather ill equipped” to second-guess health decisions by people who actually have the expertise to make them, Hinkson said.

The injunction request by the provincial health officer and attorney general comes after the churches filed a petition that challenges COVID-19 restrictions on in-person religious services, arguing the ban violates people’s rights and freedoms.

The Riverside Calvary Chapel in Langley, the Immanuel Covenant Reformed Church in Abbotsford and Free Reformed Church of Chilliwack were among more than a dozen individuals or churches that filed the petition last month, with the challenge to be heard in March.

They allege several charter violations including freedom of religion, belief, expression, peaceful assembly and association.

Lawyer Paul Jaffe, who represents the churches, told the court his clients have adopted safety protocols similar to those approved by Henry in places like schools that remain open.

It doesn’t make sense that some people should be allowed to gather to do yoga or to study history, but not talk about God, he said.

“It’s so arbitrary, it’s so irrational. Viruses don’t become activated because of the subject of discussion,” Jaffe said.

The health orders allow exemptions for support groups for people challenged with grief, substance use and other conditions. Jaffe said churches play a similar role.

The churches applied for an exemption in December and have not received a response, he said.

Jaffe described the application for an injunction as a “punitive” and “vindictive” move, when the court hearing is less than three weeks away.

However, Morley said existing restrictions on worshippers aren’t working without compliance and a court order could add weight and protect the public.

There is “no question” that there is an ongoing risk to public health of gatherings in the coming weeks, he said.

“They have every right to challenge the public health orders, but they do not have a right not to abide by them in the meantime.”

It’s not right to compare restrictions on churches with other venues, he said. The orders are consistent if you consider that both secular and religious schools have the same restrictions, and both secular and religious ceremonies like weddings and funerals do, too.

“Secular oranges are different from religious apples,” he said.

On Friday, Henry told a news conference that churches were open in summer and fall with safety measures in place, but as the pandemic worsened, so did transmission in faith settings.

The nature of interactions in churches is “fundamentally different” than the transactional ones in stores and restaurants, and there are more older and vulnerable churchgoers than other demographics, Henry said.

Churches will be reopened as a soon as it’s safer to do so, she said.

Hinkson asked Morley what the government planned to do if it were granted a court injunction against the churches. He noted a recent case where an injunction against protesters was given to the Vancouver Port Authority, but the public prosecution service declined to enforce the order, saying it wasn’t in the public interest to charge the protesters.

“You understand my concern is the reputation of the administration of justice,” Hinkson said.

“If we’re being asked to do these things and then we’re told it’s not in the public interest to enforce our orders, I won’t grant orders,” the judge said.

Applicants for court injunctions are typically non-governmental organizations or companies that don’t have any other option. Governments do, he said.

Morley said the attorney general’s office cannot tell police or the prosecution service how to exercise their discretion, but he assured the judge that his ruling would be taken “very, very seriously.”

“Every participant in the judicial system is concerned about the rule of law and the public health interests at stake here, and will exercise your discretion appropriately,” Morley said.

Hinkson said he will deliver a decision Wednesday, adding he does not condone breaching orders.

This report by The Canadian Press was first published Feb. 12, 2021.

Amy Smart, The Canadian Press

Coronavirus

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

A health care worker prepares to test a Coastal GasLink field worker for COVID-19. (Coastal GasLink photo)
Coastal GasLink begins COVID screening of pipeline workers

Construction is once again ramping up following Northern Health approval of COVID management plan

FILE – A COVID-19 vaccine being prepared. (Olivia Sullivan/Sound Publishing)
B.C. seniors 80 years and older to get COVID vaccine details over next 2 weeks: Henry

Province is expanding vaccine workforce as officials ramp up age-based rollout

Chris Paulson of Burns Lake took a quick selfie with a lynx over the weekend of Feb. 20-22, 2021, after the wild cat was found eating some of his chickens. (Chris Paulson/Facebook)
VIDEO: Burns Lake man grabs lynx by scruff after chickens attacked

‘Let’s see the damage you did, buddy,’ Chris Paulson says to the wild cat

Northern Health has declared a COVID-19 outbreak at Brucejack mine, 65 km north of Stewart on Feb. 11, 2021. (Pretivm Photo)
Northern Health has declared a COVID-19 outbreak at Brucejack Mine, 65 kilometres north of Stewart on Feb. 11, 2021. (Pretivm Photo)
Northern Health reports 20 more COVID-19 cases in outbreak at Brucejack Mine

So far, 42 people have tested positive, nine cases are active and self-isolating onsite

Fisheries and Oceans Canada released it's 2021 Pacific Herring Integrated Fisheries Management Plan Feb. 19. (File photo)
Northern herring opportunities kept to a minimum

2021 management plan caps Prince Rupert fishery at 5 per cent

Abbotsford’s Kris Collins turned to TikTok out of boredom when the provincial COVID-19 lockdown began in March 2020. She now has over 23 million followers on the video app. Photo: Submitted
Internet famous: Abbotsford’s Kris Collins is a TikTok comedy queen

Collins has found surprise stardom alone with a phone

A Vancouver restaurant owner was found guilty of violating B.C.’s Human Rights Code by discriminating against customers on the basis of their race. (Pixabay)
Vancouver restaurant owner ordered to pay $4,000 to customers after racist remark

Referring to patrons as ‘you Arabs’ constitutes discrimination under B.C.’s Human Rights Code, ruling deems

Nanaimo children’s author and illustrator Lindsay Ford’s latest book is ‘Science Girl.’ (Photo courtesy Lindsay Ford)
B.C. children’s writer encourages girls to pursue the sciences in new book

Lindsay Ford is holding a virtual launch for latest book, ‘Science Girl’

Pig races at the 145th annual Chilliwack Fair on Aug. 12, 2017. Monday, March 1, 2021 is Pig Day. (Jenna Hauck/ Chilliwack Progress file)
Unofficial holidays: Here’s what people are celebrating for the week of Feb. 28 to March 6

Pig Day, Canadian Bacon Day and Grammar Day are all coming up this week

Staff from the Marine Mammal Rescue Centre, passersby, RCMP and Nanaimo Fire Rescue carried a sick 300-kilogram steller sea lion up the steep bluff at Invermere Beach in north Nanaimo in an attempt to save the animal’s life Thursday. (Photo courtesy Marine Mammal Rescue Centre)
300-kilogram sea lion muscled up from B.C. beach in rescue attempt

Animal dies despite efforts of Nanaimo marine mammal rescue team, emergency personnel and bystanders

Doctors and counsellors warn of an increase in panic attacks, anxiety, depression and suicide ideas between ages 10 to 14, in Campbell River. ( Black Press file photo)
Extended pandemic feeding the anxieties of B.C.’s youth

Parents not sure what to do, urged to reach out for help

Join Black Press Media and Do Some Good
Join Black Press Media and Do Some Good

Pay it Forward program supports local businesses in their community giving

Kara Sorensen, diagnosed with lung cancer in July, says it’s important for people to view her as healthy and vibrant, rather than sick. (Photo courtesy of Karen Sorensen)
B.C. woman must seek treatment overseas for inoperable lung cancer

Fundraising page launched on Karen Sorensen’s behalf, with a goal of $250,000

Gina Adams as she works on her latest piece titled ‘Undying Love’. (Submitted photo)
‘Toothless’ the kitty inspires B.C. wood carver to break out the chainsaw

Inspired by plight of a toothless cat, Gina Adams offers proceeds from her artwork to help animals

Most Read