Pandemic tests limits of religious freedom as churches set to fight B.C.'s COVID-19 rules in court

As Art Lucier tells it, he faced a dilemma last November when B.C.'s provincial health officer suspended in-person religious services to try to curtail the spread of COVID-19. 

The Kelowna pastor asked God to give him a dream. Lucier says God responded.

"I had a dream that I stood up," Lucier tells a crowd in a sermon recently posted as a podcast to his church's website.

He claims he saw a "mass of people" present and he spoke these words from a podium: "Pastors of Canada, it's time to open up the churches and stand together in unity over it."

The Bible and the Charter of Rights and Freedoms

Two months later, Lucier has racked up two $2,300 tickets for defying provincial health orders and his dream has become reality — to the extent he finds himself shoulder to shoulder with other pastors challenging B.C.'s COVID-19-related restrictions on places of worship.

Like other faith leaders who are fighting the rules, Lucier insists he is not rebelling against the government. He claims he finds his justification in God.

But interpretations of the Bible and the Canadian Charter of Rights and Freedoms can cut both ways when it comes to Dr. Bonnie Henry's public health orders. And the coming months will see the B.C. courts probe the legality of the rules while churchgoers try to divine God's will.

Marty Moore is a lawyer with the Justice Centre for Constitutional Freedoms, the Calgary-based organization representing several churches in a B.C. Supreme Court petition seeking to overturn the order against in-person worship.

He stresses that the legal arguments involved have nothing to do with the particular beliefs of the individuals and churches seeking a judicial review.

Freedom of expression and freedom of religion are enshrined in Canada's Charter of Rights and Freedoms. And Moore argues that by allowing restaurants and businesses to remain open while shutting churches, B.C. has gone too far.

"Government is required under the Constitution … to demonstrably justify any infringement of charter rights," he said.

"And in these particular circumstances, I don't think the demonstrable justification has been presented."

'If it's religious, you cannot have it'

The B.C. government has yet to file a response to the petition, but the province's Health Ministry has expressed confidence in the legality of Henry's orders, which derive their power from the declaration of a provincial state of emergency.

A document released last spring by the provincial COVID-19 task force said the government will consider the infringement of personal freedoms during a crisis and commit to the least restrictive and coercive measures possible.

Moore argues that some big box stores see higher volumes of traffic on a weekend than the churches involved in the lawsuit. He says his clients have also all been willing to comply with the safety measures the province has demanded of essential businesses.

B.C. has allowed retail stores to stay open as long as they can guarantee five square metres of space per customer. Shoppers and staff must wear non-medical masks in all indoor public spaces. The province has also declared retail businesses such as grocery and cannabis stores as essential. Support group meetings are allowed for up to 50 people.

"Religious services are important and many view those as essential, yet if it's religious, you cannot have it," said Moore.

"So there is certainly some questions as to whether this is over-broad and whether this has actually a disproportionate effect on faith communities in B.C."

'Not in that health emergency place'

Beyond the legal dispute — and not mentioned in the court documents — appears to be a fundamental disagreement between the province and some of the churches as to the severity of the pandemic.

COVID-19 has killed more than 1,000 people in British Columbia and infected more than 60,000. More than two million people have died worldwide.

In a question-and-answer session posted to the website of Langley's Riverside Calvary Chapel, Pastor Brent Smith acknowledges the concerns of those who "might" say the province is dealing "with a crisis, a health emergency."

"And therein lies the secondary problem," Smith says. "Because if it could really be determined clearly that this is an emergency, then I'd be happy to suspend worship services so as to not pose a risk to anybody's safety and health.

"It's my personal conviction that when I look at the data and I look at the stats, that we are not in that health emergency place."

Lucier, who declined to speak further about the lawsuit for this article, strikes a similar tone in a Facebook Live video he posted on Jan. 12 seeking donations for a legal fund.

In the video, he says COVID-19 has cost jobs, uprooted lives and caused emotional and mental stress for families struggling with addiction and poverty.

"It's 99.7 per cent beatable," he says. "This is not the bubonic plague. Fifty thousand people have not died in B.C. If that was the case, we'd tell everyone, 'Holy Cow, stay home.'"

According to B.C.'s latest COVID-19 statistics, the province has recorded 1,119 deaths out of 62,976 cases — a death rate of about 1.78 per cent. According to federal statistics, about 7.6 per cent of COVID-19 patients have been hospitalized.

'Freedom to infect' not part of Paul's vocabulary

In the question and answer video, Smith cites Romans 13 and a passage in the Bible that would seem to support following Henry's orders: "Let everyone be subject to the governing authorities, for there is no authority except that which God has established."

But the pastor goes on to say that all churchgoers need to ask themselves about the values for which they would be willing to defy authority. He says his church's leadership team has prayed and their "heart has been simply to keep [the] doors open."

"Our goal in all this is not to make some political stand or to make this a fight for our rights," he says in the video. "We just want to worship our Lord and we want to follow in what he's asking us to do."

Jason Byassee, a Methodist pastor who teaches at the Vancouver School of Theology, disputes that interpretation of the Bible.

Byassee, who has continued to preach online during the pandemic, says he believes the dissenting churches are being influenced by U.S.-based evangelicals who see COVID-19 restrictions as an affront to their freedoms.

He cites Paul in First Corinthians.

"For him, freedom doesn't mean I determine my future, it means God determines our future and the poorest among us are how God gauges that. So freedom to infect is not part of Paul's vocabulary. That's how I would mostly address my sisters and brothers in Christ who want to defy orders," he said.

"I think they're not really taking their dance steps from the Bible. They're taking it from a kind of American version of freedom, which isn't a Canadian one."

Charitable status at stake?

Beyond the Bible and the Constitution, churches choosing to defy the law may want to consider another crucial document: Canada's tax code.

The B.C. religious organizations that have been ticketed for keeping their doors open all have charitable status.

"Unlike for a business, it is a basic requirement to be a registered charity that the registered charity must comply with the laws in Canada," said Mark Blumberg, a Toronto lawyer and expert on charities. 

"Also, they must provide a public benefit. Failure to do either can result in the registered charity not meeting the eligibility requirements for being a registered charity and their status can be revoked by the CRA."

Moore, the lawyer representing the churches, says the Canada Revenue Agency's taxation concerns should not extend to religious organizations seeking a judicial review of orders that prevent them from carrying out what they see as their mandates.

In a statement, the CRA said it is not the tax agency's job to enforce public health guidelines. But "a registered charity that undertakes activities that are not charitable, including activities that are contrary to Canadian public policy, may be subject to compliance actions."

Speaking generally about the law, Blumberg said registered charities "that deliberately, flagrantly violate basic public health requirements in a pandemic will probably receive very little sympathy from the courts."

And that wouldn't just be when it comes to questions about their charitable status.

He said there's also the possibility members who catch COVID-19 might sue.