B.C. churches won’t rule out appeal on ‘surprising’ ruling upholding in-person service ban

The lawyer representing a group Lower Mainland churches in a failed bid to overturn the province’s ban on in-person worship says he’s “disappointed,” and still considering an appeal of the ruling.

B.C. Supreme Court Chief Justice Christopher Hinkson upheld the ban Thursday, finding provincial health officer Dr. Bonnie Henry’s order did infringe on religious rights, but that the infringement was reasonable and proportionate.

Paul Jaffe, who represented a group that included the Riverside Calvary Chapel in Langley, Immanuel Covenant Reformed Church in Abbotsford and the Free Reformed Church of Chilliwack, disagrees.

“It was a very, very surprising decision,” Jaffe said.

Jaffe and his clients maintain that banning religious gatherings but allowing pubs and stores to remain open amounts to religious discrimination.

1:47 Church challenge of government restrictions hears questions about Dr. Bonnie Henry’s policies

“What was at issue was her distinction between different kinds of gatherings — we said the nature of the gathering ought not to determine whether something is prohibited or not. Surely the infection rate is a function of whether or not people take steps to be safe,” he said.

“Many of the activities which continue to be allowed — these are not expressly protected constitutional rights, whereas the churches have a constitutionally protected freedom of religion, freedom of assembly.”

Hinkson further argued that at no point in the trial did the province produce medical evidence showing religious settings were more likely to see transmission than other activities that continue to be allowed.

According to evidence presented by the province, between March 15 2020 and Jan. 15 there were at least 48 places of worship affected by COVID-19 across the four mainland health authorities, with 180 associated cases and at least one death.

In his ruling, Hinkson found that Henry’s order did not discriminate against a particular religious group, and that some in-person worship — such as personal prayer and drive-in services — remained permitted.

But Jaffe says for his clients, the act of gathering itself is a key part of their religious practice.

2:03 Growing frustration over church closures in B.C.

“It leaves them terribly conflicted between what they regard as their religious, spiritual imperatives — their reasons for resisting these orders is so rooted in this deeply held fundamental tenet of their faith that gatherings are essential to practice their religion,” Jaffe said.

Henry responded to the judgment Friday, saying she had “great respect for the justice system.”

“(I) am thankful for the chief justice’s thoughtful decision upholding public health orders in regards to religious gatherings,” Henry said.

On Monday, Henry said the province was working on a plan to gradually resume in-person services.

Henry said the province plans to allow a class variance to permit outdoor religious services in small numbers soon, along with variances for for Passover and Easter.

In the meantime, Jaffe wouldn’t rule out taking the case to the B.C. Court of Appeal.

“We certainly feel we have a lot to work with if we did appeal, but that decision hasn’t been made,” he said.