COVID-19: Ontario churches’ constitutional challenge on gathering limits dismissed

The Church of God in Aylmer, Ont., is one of two churches that led the challenge and has faced repeated charges in the past for defying COVID-19 restrictions, including findings of contempt. Phil Pang / Global News

An Ontario judge has dismissed a constitutional challenge on religious gathering restrictions implemented by the provincial government during the COVID-19 pandemic, deciding that their health benefits had outweighed the impact on religious freedom.

The challenge was put forward by 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.

Superior Court Justice Renée Pomerance’s written decision can be read in full on the website for the Canadian Legal Information Institute.

Lawyers for the churches’ had argued that both indoor and outdoor gathering restrictions issued by the Ontario government were over-broad, unreasonable, arbitrary limits that violated Charter rights and cannot be justified in a free and democratic society.

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While Pomerance agreed the restrictions had infringed on religious freedom, “these measures were rationally connected to a pressing and substantial objective and were proportionate in their effect.”

“The government objectives in this case are amongst the most compelling imaginable – the protection of human life in the face of an unprecedented and unpredictable virus, carrying a threat of devastating health consequences,” Pomerance said.

She notes that there was never a complete ban on religious gatherings or activities, rather “it was always open to the churches to deliver services to congregants, albeit in a less than optimal fashion” such as drive-in services or virtual meetings.

Pomerance added that the Ontario government, “accounted for the importance of religious activity by allowing greater latitude for religious than non-religious gatherings,” pointing to the less stringent nature of restrictions for religious activities compared to restrictions for social events and public performance events.

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Another layer of her analysis, Pomerance said, is tied to the benefit conferred to religious adherents by reducing the risk of infection at religious events.

“There may be individuals who would not have attended services absent these protections. For those individuals, the gathering limits enhanced their ability to participate in religious activities,” Pomerance said.

She also said that full accommodation of religious freedom when implementing gathering restrictions “would have represented a wholesale abdication of government responsibility to act in the public interest.”

“It would have meant turning a blind eye to the threat of severe health consequences for a large swath of the population,” said Pomerance.

Drawing on expert opinion presented during the case, Pomerance concluded that “the salutary benefits of these restrictions outweighed the deleterious effects on religious freedom.”

In a statement sent to Global News, Lisa Bildy, one of several lawyers who represented the churches during the case, expressed her disappointment with the decision.

“For nearly two years now, considerable deference has been given to governments across the country by the courts, allowing them to impose restrictions on the Charter-guaranteed rights and freedoms of Canadians seemingly without limit,” Bildy said.

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“We will be reviewing the decision closely in the next days, with a view to filing an appeal.”

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