SM The Court of Appeal sided with provincial health officials over COVID-19 restrictions on churches

The judge found that orders restricting gatherings and events were justified under two separate legal examinations

Court of Appeals B.C. has given full support to the actions of the provincial health officer Dr. Bonnie Henry in rejecting an appeal challenging the legitimacy of an order limiting in-person services.

In a unanimous decision released Friday, the provincial high court said Henry's order restricting religious gatherings and events may have violated fundamental freedoms that Canadians are guaranteed - but are justified under one of two important legal tests.

"I acknowledge that the order places a heavy burden on many members of our community," wrote Judge Gregory Fitch, who wrote the decision on behalf of the three appeals court judges.

"I don't see how it could have been the other way around. The urgent aims underlying the order cannot be achieved without limiting gatherings that pose an unacceptable public health risk." and Langley — "disappointed" by the decision.

"In our view, this decision fails to provide the parameters and guardrails to guide the government in respecting the constitutional liberties of British Columbians," said Marty Moore of the Judicial Center for Constitutional Freedoms, in an interview with CBC.

"There are still people of faith across the province, who are facing legal dangers under certain public health orders."

Moore said his client was considering whether to appeal to Canada's Supreme Court.

The ruling comes after an appeal of a lower court ruling in which B.C. Chief Justice Christopher Hinkson also sided with the government regarding a petition seeking a statement that Henry's order violated their freedom of religion.

The initial petition was launched by a group of Fraser Valley pastors and Alan Beaudoin, a man the lower court described as an "activist" who engaged himself "in advocating for what he saw as his own rights and the rights of others."

The order began with the November 18, 2020 suspension of "all indoor and outdoor events, including in-person gatherings for religious worship."

In the months that followed, Henry issued further directives that emphasized basic limits on gatherings but allowed certain exceptions such as the minister visiting someone's home.

On February 10, 2021, he also clarified that he was not banning "outdoor gatherings for the purpose of communicating positions on matters of public interest or controversy" — which would prove significant in Beaudoin's case. In a lower court decision, Hinkson found Beaudoin's right to freedom of expression had been violated by an order prior to February 10, 2021, and said "the violation of those rights by the order cannot be proven justified in a free and democratic society."

But he said the clergy had no right to challenge the Charter to the order, because the process by which they seek Henry's reconsideration only allowed for judicial review of the reconsideration itself - not the order underlying it.

Regardless, Hinkson said Henry's orders would be justified under the part of the Charter that allows governments to limit rights and freedoms in certain situations.

'Reasonable range of results'

On appealing, Beaudoin said Hinkson's assertion that his rights had been violated was insufficient. And the priests argued that the judge applied the wrong test to determine whether the order was justified.

In Beaudoin's case, the appeals court judge agreed with the government's argument that his appeal was moot because the charges against him were postponed and there was no longer an injunction against large gatherings.

The judge also rejected the reasons for the appeal put forward by the priests.

Fitch said Hinkson was right to apply the legal test that says administrative decisions must reflect a "proportionate balance of Charter protections" to the statutory mandate of provincial health officials.

"Public health orders made by PHOs at the height of the second wave of the pandemic could not have been made in a more challenging and complex environment. They were informed by the expertise and experience of public health officers," Fitch wrote. In my view, a time-limited ban on in-person gatherings for religious worship is within the reasonable range of results."

But Fitch went further, invoking the test the chaplains ordered the court to use, saying "the purpose of the action giving rise to the restriction was urgent and substantial, and that the means used to achieve that goal were proportionate."

'He is uniquely qualified'

The appeals court's decision speaks directly to the arguments advanced by one of the interventionists in the case, the Canadian Reform Political Action Association - who spoke of respecting "pluralism".

"A free society is a pluralistic society in which individuals have the right to pursue, within reasonable limits, their individual beliefs. But living in community also means recognizing our interdependence," Fitch wrote.

“The COVID-19 pandemic highlights our interdependence as a community. It forces us to face the reality that pursuing some activities, including the exercise of some constitutionally protected rights, would exponentially increase the risk of disease spreading and loss of human life." The appeals court judge said Henry "made time-limited orders and special arrangements that limited the activities that he considers most likely to encourage widespread transmission of the virus."

"He is uniquely qualified to make this decision," the ruling read.

"The exercise of judgment must be given due respect." This article was written by EDUKASI CAMPUS. 

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