Judge questions the court's role in managing public health orders to ban church gatherings

The chief justice of the British Columbia Supreme Court says the attorney general is putting the court in an "impossible position'' by asking for an injunction ordering three churches to stop in-person religious services until their challenge of public health orders is heard.

Chief Justice Christopher Hinkson says public health orders already prohibit such gatherings and it's within the power of Provincial Health Officer Dr. Bonnie Henry and the government to escalate enforcement without a court order. 

"There are alternate remedies,'' Hinkson told Gareth Morley, legal counsel for the Ministry of the Attorney General,  during the hearing on Friday.

"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?''

The injunction request by the provincial health officer and attorney general comes after the churches filed a petition that challenges COVID-19 restrictions on in-person religious services, arguing the ban violates people's rights and freedoms.

They allege several charter violations including freedom of religion, belief, expression, peaceful assembly and association. 

Lawyer Paul Jaffe, who represents the churches, told the court his clients have adopted safety protocols similar to those approved by Henry in buildings that remain open, like schools. 

He said it doesn't make sense that people are allowed to gather to do yoga or to study history, but not talk about God.

According to the court documents, the province is seeking an order that would prevent elders and members from gathering to worship in their churches and from organizing celebrations, ceremonies, baptisms, funerals or any other "event" as defined by Henry's orders.

The order would also authorize police to detain anyone they have grounds to believe is planning to attend a religious service organized by any of the three churches.

 Jaffe argued that if shoppers are allowed to come and go freely at a Langley strip mall, so should those attending a religious service in the same complex.

"The idea they can be arrested for intending to pray is incredible," he said. "It is incredible that any court can think about imparting the police with that kind of power." 

He described the injunction application as "punitive'' and "vindictive'' when the court hearing is less than three weeks away. 

However, Morley argued existing restrictions on worshippers aren't working and a court order could add weight and protect the public. 

There is "no question'' that gatherings in the coming weeks create an ongoing risk to public health, he said.

"They have every right to challenge the public health orders, but they do not have a right not to abide by them in the meantime.'' 

Hinkson asked Morley what the government planned to do if it were granted a court injunction against the churches. He noted a recent case where an injunction against protesters was given to the Vancouver Port Authority, but the public prosecution service declined to enforce the order, saying it wasn't in the public interest to do so.

"If we're being asked to do these things and then we're told it's not in the public interest to enforce our orders, I won't grant orders,'' the judge said.

The judge is scheduled to render a decision on the injunction request Wednesday morning at 10 a.m.