Freedom of religion and COVID restrictions

The B.C. Supreme Court examined the constitutionality of COVID-related restrictions against religious gatherings, imposed by the provincial health officer under the Provincial Health Act, in Beaudoin v British Columbia, 2021 BCSC 512.

On November 19, 2020, in response to the spread of the SARS-CoV-2 virus including numerous outbreaks of COVID-19 in religious settings, [15-18] the provincial health officer, Dr. Henry, announced a temporary province-wide ban on all in-person gatherings, including religious services. [38] These restrictions continued into the following year. In an order of February 5, 2021, however, Dr. Henry recognized her obligation to choose powers to protect the health of the public that limit Charter rights and freedoms less intrusively, where consistent with public health principles. She subsequently noted that “the nature of interactions at faith group gatherings is fundamentally different than in transactional relationships at the store or gym or at a restaurant….” [60] Various petitioners alleged that Dr. Henry’s orders unjustifiably infringed various Charter rights, including freedom of religion. [67]

The provincial respondents conceded that the orders infringed the religious petitioners’ freedom of religion, freedom of expression, right of peaceful assembly, and freedom of association. [163-177]

As to whether the infringements were justifiable, the court recognized the distinction between reviewing the constitutionality of a law, where the court applies the multi-step Oakes test, [213] and reviewing an administrative decision, where the court applies the Dore test: whether the administrative decision “reflects a proportionate balancing of the Charter protections at play”. [212 and 214]. Specifically, the court must decide whether the exercise of administrative discretion that limits a Charter right is reasonable, i.e., if it reflects a proportionate balancing of the Charter right with the objective of the measures that limit the right. [216]

The religious petitioners conceded that public health was a sufficiently important objective that it can justify limits on Charter rights. [222] Accordingly, the dispute focused on the reasonableness of the PHO’s proportionality analysis.

The petitioners asserted that Dr. Henry’s order was arbitrary, irrational and disproportionate. [222] However, the court rejected the petitioners’ assertion that religious gathering involved identical risks to school, gymnasium and restaurant settings, due to distinguishing factors including “the ages of the participants, the intimate setting of religious gatherings, and the presence of communal singing or chanting in religious gatherings (and the religious petitioners’ evidence shows that masks do not appear to be used throughout religious services and that singing is not prohibited).” [226]

The court concluded that “Dr. Henry carefully considered the significant impacts of the impugned G&E Orders on freedom of religion, consulting with the inter-faith community to discuss and understand the impact of restrictions on gatherings and events on their congregations and religious practices.” [243] Accordingly, her decision fell within a range of reasonable outcomes. [246]

Beaudoin v British Columbia, 2021 BCSC 512

Lisa C. Fong, Q.C. and Michael Ng