OPINION | A jailed pastor, a pandemic, and our rights under the charter

This column is an opinion from Matt Szostakiwskyj, a first year student in the juris doctor program at the University of Calgary.

Pastor James Coates of GraceLife Church near Edmonton remains in jail for holding church services after being warned this contravened public health orders.

Many of his supporters believe this is a violation of his charter rights and freedoms.

Even Premier Jason Kenney acknowledged a reluctance to impose COVID-19 restrictions for fear of infringing on our charter-protected rights, only to enact measures a few weeks later.

Many Albertans are probably wondering about the status of their rights and freedoms, and how Pastor Coates could reasonably have been arrested.

The Canadian Charter of Rights and Freedoms guarantees every citizen's freedoms of religion, expression, and assembly. Most people are at least passingly familiar with these charter rights because they feature so prominently in TV and movies.

This is, to quote one of my law professors, the "sexy" part of our constitution.

Restrictions must be reasonable

What many people may not know is that the charter allows the government to limit these rights, provided they can demonstrate that doing so is consistent with the values of a free and democratic society.

To justify a limit on charter rights the government needs to show that any restrictions imposed address an important purpose and that the law is a reasonable way of achieving that purpose.

With almost 2,000 deaths from COVID-19 in Alberta to date, it shouldn't be too difficult to argue that the government needed to take measures to control the spread of the disease and maintain our healthcare system. This number is higher than the total deaths from influenza over the last decade.

And health experts have agreed since the start of this pandemic that one of the best ways to avoid the spread of this virus is to keep our distance from each other, which includes placing limits on gatherings such as religious services.

In order to justify a limit on charter rights, the government must also demonstrate that it has carefully considered its options and chosen one that limits rights as little as possible, while also achieving the stated goal. This requirement is a steep hill to climb, but it has to be to keep governments in check.

While Alberta's current restrictions are extensive, they still allow for places of worship, businesses, and daycares to remain open, albeit at reduced capacity. These measures are much less restrictive than those implemented in Ontario, where many regions have been under a stay-at-home mandate. 

And don't forget about the previous measures Alberta introduced, which placed curfews on restaurants, limited group workout classes, and capped the number of people who could attend an outdoor wedding.

These were much less restrictive, but failed to flatten the curve, as the number of cases of COVID-19 grew exponentially from 5,172 on October 30 to 14,217 on November 27.

This means lesser measures weren't effective enough in controlling the spread of disease, and that's important to the courts.

The law must strike a balance between the impact on personal freedom and the overall public benefit. While many feel they have been unduly impacted, they should remember these orders are intended to protect the systems that serve all Albertans.

It only takes one asymptomatic person to spread the virus and cause the shutdown of a hospital wing, which is a real risk this virus poses. We need to be able to rely on the safety of our hospitals, because we can't predict when cars will crash or kids will bump their heads.

What is a justifiable limit?

What would the courts say is a justifiable limit? It's hard to know — there haven't been many COVID-19-related cases put before the courts. But based on the few that have, we should expect the courts to back the government. 

In December, a group of churches from southern Alberta sued to halt the public health orders to "save Christmas." They argued the restrictions placed limits on their freedoms of religion, expression, and assembly, however the court concluded the public health benefits outweighed the right to celebrate religious holidays.

What's important is that this case was brought forward on short notice and was decided without the benefit of all the evidence. The judge noted the decision could go the other way at a full trial if the claimants can show these limits aren't necessary to control the spread of COVID-19. This is going to be a key point for Pastor Coates.

The charter protects our fundamental rights, but it also gives leeway for governments when it comes to solving serious problems.

For many of us, this pandemic is the most serious problem the world has faced in our lifetimes. We need to accept that we're all sacrificing our rights and freedoms, including my right to attend in-person classes or Pastor Coates' right to hold church services, to maintain the systems we rely on.

It's highly likely the government will be able to justify these limits, and that's probably for the best. After all, Christmas will come again, but we'll all need to contribute if we want to celebrate together.

This column is an opinion. For more information about our commentary section, please read our FAQ.