A pair of southwestern Ontario churches had their first of several days in court on Monday as part of a constitutional challenge against public health restrictions implemented during the COVID-19 pandemic.
Leading the challenge are the Church of God in Aylmer and Trinity Bible Chapel in Waterloo, both of which have faced a variety of charges, including findings of contempt, for repeatedly defying restrictions.
“It will be our submission that both the indoor and outdoor gathering restrictions are over-broad, unreasonable and arbitrary limits that violate the charter of rights and cannot be demonstrably justified,” said Lisa Bildy, one of several lawyers representing the churches, toward the beginning of the hearing.
“Accordingly, we’ll ask this court to declare the restrictions to be of no force and effect and to set aside the restraining orders imposed to enforce them.”
The multi-day hearing for the challenge is being held virtually by the Superior Court of Justice in St. Thomas with Justice Renee Pomerance presiding over the matter. It began on Monday with opening submissions from the churches’ lawyers.
The lawyers, along with the Association for Reformed Political Action (ARPA) Canada, a Christian political advocacy organization acting as a third-party intervenor, will finish their argument during Tuesday’s hearing.
After that, representatives for Ontario’s attorney general are expected to address the court.
The group of lawyers opened their argument by citing affidavits from a number of doctors, including infectious disease physician Dr. Zain Chagla.
Making reference to an opinion piece written in part by Chagla that was published in the Toronto Star on April 12, 2021, the lawyers made reference to what the doctors testified was a negligible risk of COVID-19 transmission while outdoors, so long as distancing is maintained.
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On top of transmissibility, the lawyers also compared restrictions placed on religious settings with those placed on retail settings, with the latter settings often dealing with capacity limits rather than set numbers of people allowed inside.
They also argued too much of the justification for restrictions was deferred to a precautionary approach that made policy decisions based on a lack of conclusive evidence.
The hours-long submissions focused, in part, on Section 2 of the Charter of Rights and Freedoms, with arguments made on how the restrictions placed on churches violated all of Section 2’s subsections.
The four subsections relate to freedom of religion, freedom of expression, freedom of peaceful assembly and freedom of association. Much of this argument focused on whether the restrictions had a trivial interference or a substantial interference to these fundamental freedoms.
Section 1 of the charter states that rights and freedoms are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
The lawyers also argued there was a lack of evidence to prove that restrictions on religious settings had a direct impact on curbing prior waves of COVID-19, however, Pomerance, the Superior Court Justice presiding over the hearing, had noted that finding such proof may be difficult for specific restrictions.
Day one of the challenge drew to a close before the lawyers could finish their arguments, but more time will be given on Tuesday, along with time for ARPA Canada representatives to present their submissions.
The court has yet to hear from those representing Ontario’s attorney general.
Time for initial hearings of the case has been set aside until end of day Wednesday.