Judge questions whether B.C.'s top doctor appreciated right to religious freedom

A lawyer for British Columbia's attorney general says the provincial health officer understands the importance of balancing any COVID-19 restrictions on in-person gatherings against the charter right to freedom of religion.

In a hearing over a petition challenging Dr. Bonnie Henry's health orders, Gareth Morley told the B.C. Supreme Court that Henry has outlined the reasons for her orders both verbally in public briefings and in writing.

He says Henry's statements described how rapidly rising COVID-19 cases in B.C. last fall threatened exponential growth that could have overwhelmed the health-care system, and further restrictions were necessary to prevent transmission while keeping schools and essential workplaces open.

Paul Jaffe, a lawyer for the group of petitioners that includes three Fraser Valley churches, told the court this week the restrictions substantially and unjustifiably interfere with his clients' charter right to freedom of religion.

Morley told Chief Justice Christopher Hinkson that Henry believed accelerating cases constituted a health hazard, allowing her to issue orders that she acknowledged may affect charter rights in a reasonable and proportional way.

However, Hinkson questioned whether Henry fully appreciated the right to religious freedom based on Morley's description of her statements related to the orders in November and December.

"She talks about needs of persons to attend in-person religious services, but that really wouldn't capture the charter right that's asserted by the petitioners ... would it?'' he asked.

The orders have since been amended and now include specific reference to the charter and freedom of religion, Morley said, adding Henry has always recognized the importance of religious practice and in-person worship.

Morley told the court Henry consulted with faith leaders before issuing the orders last year and invited churches to submit requests for case-specific exemptions in proposals outlining how they could conduct services in ways that minimize the risk of COVID-19 to her satisfaction.

Jaffe said during his argument this week that his clients — which include the Riverside Calvary Chapel in Langley, Immanuel Covenant Reformed Church in Abbotsford and the Free Reformed Church of Chilliwack — have been careful to adopt safety protocols similar to those approved by Henry in places that remain open.

He said during a separate hearing last month that his clients applied for an exemption in December and did not receive a response.

A separate petition was filed Tuesday representing about 3,000 parishioners at 10 churches that are part of the Canadian Reformed Churches.