Judge denies B.C.'s request for injunction against churches breaking COVID-19 rules

The chief justice of British Columbia's Supreme Court has denied an application from the province for an injunction against three Fraser Valley churches flouting COVID-19 rules that prohibit in-person services.

In a brief hearing Wednesday morning, Chief Justice Christopher Hinkson said he had dismissed the application by B.C.'s attorney general and Provincial Health Officer Dr. Bonnie Henry, which came after the churches filed a petition challenging the restrictions, arguing they violate parishioners' rights and freedoms.

Hinkson's reasons were posted on the court's website shortly after he issued his decision.

"Given the other remedies available to the respondents, I have reservations that an injunction alone, without enforcement by the B.C. Prosecution Service, would overcome the deeply held beliefs of the petitioners and their devotee," Hinkson wrote.

"To be clear, I am not condoning the petitioners' conduct in contravention of the orders that they challenge, but find that the injunctive relief sought by the respondents should not be granted."

'Balance of convenience'

Three B.C. churches — the Riverside Calvary Chapel in Langley, the Immanuel Covenant Reformed Church in Abbotsford and Free Reformed Church of Chilliwack — filed their petition last month.

Their challenge is set to be heard in March.

Paul Jaffe, a lawyer for the churches, said his clients were pleased with the decision, even though it doesn't change the fact that gatherings to worship are still forbidden under B.C.'s health orders.

Jaffe said he's confident Hinkson will see that the orders are unreasonable infringement on charter rights when the case is heard.

"They have to be proportionate. They have to be rational. They have to be evidence based. And what we've contended is that in terms of the impact on the churches of the health orders, there is no rational scientific basis for that," Jaffe said.

"They appear to be arbitrary and somewhat discriminatory and not based on medicine or science."

In a statement Wednesday, Henry thanked Hinkson for considering her request. She said she believes her orders are in line with the Constitution.

"I put public health orders in place to protect faith leaders, their congregations and the communities in which they worship. These are legal orders that apply to everyone in our province, and most churches are following them," Henry said. "I thank each of them."

The chief justice told a hearing last week that the provincial government is putting the court in an "impossible position'' by asking for an injunction before the petition is heard.

He said health orders already prohibit in-person religious services and it's in the power of Henry and the province to escalate enforcement.

In his decision, Hinkson said he had to consider the "balance of convenience" between sacrificing the charter rights of the three churches and the public health damage the province claimed might happen without an injunction.

He said the balance favoured the churches, given that Henry still had other options to enforce her rules.

The Public Health Act says that people who ignore health orders can face jail time and fines that range from $25,000 to $3 million for causing a health hazard.

Hinkson noted that Chilliwack RCMP claimed to have forwarded a report to the B.C. Prosecution Service for charge assessment of the violations alleged against three churches.

"I am left to wonder what would be achieved by the issuance of an injunction in this case," Hinkson wrote.

"If it were granted and not adhered to, would the administration of justice yet again be brought into disrepute because the B.C. Prosecution Service considers that it would not be in the public interest to prosecute those who refused to adhere to the orders sought from this Court?"

'We're not talking about arresting people'

During a hearing on Friday, Hinkson told a lawyer with the Ministry for the Attorney General there are "alternate remedies'' to the requested injunction.

He said the court is "rather ill equipped'' to second-guess health decisions by people who have the expertise to make them.

"I shouldn't be doing Dr. Henry's job. If she wants police to have the ability to arrest people, the order can be amended, can't it?'' he asked.

Henry told a news conference on Tuesday she doesn't know if she has the authority to add enforcement measures to her public health orders.

"We're not talking about arresting people," she said. "What we're talking about in terms of detention was preventing people from entering a premises, for example, and so that is something that is under the Emergency Management Act part of the [health] orders."

Henry said the rules still apply while the court challenge is being heard.

"They apply for the reasons that we put them in place based on the signs and the evidence when I believe there is risk of transmission and where we have seen transmission in these settings," she said.