Freedom of Association and Assembly / Protests, National Security, Public Order, Political Expression
The Case of Leopoldo Lopez
Venezuela, Bolivarian Republic of
Closed Mixed Outcome
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On March 18, 2021, the Supreme Court of British Columbia held that the restrictions imposed by Gatherings and Events Order (“G&E Order”) infringed ss. 2(c) and (d) of the Canadian Charter of Rights and Freedoms, however the infringement was justified under s. 1 of the Charter. The petitioners claimed that the prohibition on religious gatherings including church services, festivals, and ceremonies violated freedom of religion, freedom of expression, as well as freedom of assembly and association. They contended that the orders disregarded the need for minimal impairment of the Charter rights, and were overbroad, arbitrary and disproportionate. However, the judge rejected these contentions finding the impugned G&E Orders were intended to address a pandemic and by necessity, and by design, had to be broad enough in scope to protect all British Columbians. The judge concluded that the restrictions struck a reasonable and proportionate balance, and hence were justifiable limits placed on the religious petitioners’ s. 2 Charter rights.
Alain Beaudoin, an activist; Brent Smith, Pastor of the Riverside Calvary Chapel and John Van Muyen, the Chair of the Council of Immanuel Covenant Reformed Church (“the petitioners”) alleged that their Charter rights were unlawfully infringed and sought declaratory and other relief with respect to certain orders made by the Provincial Health Officer (“PHO”) Dr. Bonnie Henry and Her Majesty the Queen in Right of the Province of British Columbia (“the respondents”) that affected the petitioners’ ability to meet in person. The other petitioners were churches, whose congregations and adherents believed they had an obligation to meet in person based upon their religious beliefs. The Association for Reformed Political Action Canada, a non-profit organization representing Reformed Christians, also intervened in the present case.
Data from the Fraser Health Region showed that, from March 15, 2020 to January 15, 2021, seven places of worship were affected by the Virus, with 59 associated COVID-19 cases. Data from the Interior Health Region showed that, from March 15, 2020 to January 15, 2021, 11 places of worship were affected with 20 associated cases. Data from the Vancouver Coastal Health Region showed that, from September 15, 2020 to January 15, 2021, 25 places of worship were affected with 61 associated cases in the region. The Gatherings and Events Order (“G&E Order”) was therefore passed by the PHO prohibited or restricted gatherings for public protests and for worship and/or other religious gatherings including services, festivals, ceremonies, receptions, weddings, funerals, baptisms, celebrations of life and related activities associated with houses of worship and faith communities.
On December 1, 5, and 12, 2020, Mr. Beaudoin organized public protests against what he contended to be an abuse of government power in the COVID-19 pandemic by imposing unnecessary and “draconian” restrictions in the name of “safety,” contradicting what is permissible in a free and democratic society. The churches also held in-person services by the members. Due to these violations of the G&E Orders, the petitioners were issued violation tickets. The churches were issued at least 11 tickets totaling $34,500.
After this, the petitioners filed the present case asserting that section 2(a) (freedom of conscience and religion); section 2(b) (freedom of thought, belief, opinion and expression); section 2(c) (freedom of peaceful assembly); section 2(d) (freedom of association); section 7 (life, liberty and security of the person); and section 15(1) (equality rights) of the Canadian Charter of Rights and Freedoms (“the Charter”) were infringed by Dr. Henry’s G&E Order. They contended that those orders disregarded the need for minimal impairment of those Charter rights, and were overbroad, arbitrary and disproportionate. Pursuant to s. 2(1) and (2) of the Judicial Review Procedure Act, 1996, they sought relief with respect to the orders of November 19, 2020, December 2, 9, 15 and 24, 2020.
After the petition was filed, Dr. Henry reconsidered her decision and stated that she was prepared to give a conditional variance to the G&E Order to the religious petitioners allowing outdoor weekly worship services, subject to the adherence to extensive and specific conditions.
The case was presided over by the Chief Justice of British Columbia, Christopher Hinkson. The central issue for consideration were whether Dr. Henry reasonably balanced the restriction on religious freedom with the protection of public health.
The petitioners contended that as their proceeding was primarily centered on what was in substance a Charter challenge to Dr. Henry’s G&E Orders, as opposed to the judicial review of an administrative decision, no deference was owed to Dr. Henry in determining the constitutionality of her orders and that a standard of correctness should be applied [p. 122]. However the judge observed that Dr. Henry’s orders were in areas of science and medicine and as long as her orders incorporated Charter values, she was entitled to deference and the appropriate standard of review should be that of reasonableness [para. 123].
The petitioners further argued that the restrictions on in-person religious gatherings interfered with their freedom of religion in a manner more than trivial or insubstantial. The respondents accepted that in-person gatherings were a practice connected with religion and that the November 19, 2020 G&E Order in particular interfered in a manner that was more than trivial or insubstantial with religious practice.
The petitioners accepted that public health measures against the spread of the virus were necessary for secular reasons, due to which they discontinued in-person services before they were under a legal obligation to do so, however, they alleged that Dr. Henry’s decisions were motivated by “administrative ease and convenience” and there was “no evidence” that she considered measures that would have limited religious communities’ Charter rights in a less drastic and severe fashion. They claimed there was “no evidence” that COVID-19 transmission could be expected from worship services adhering to the safety steps prescribed in the October 30, 2020 G&E Order relative to other forms of in-person gatherings permitted from November 2020 forward, such as in schools or retail establishments [para. 150].
The petitioners further contended that the prohibition of in-person worship services infringed freedom of expression, which they said extended even to physical acts, such as the sacrament of communion, intended to convey a religious meaning of profound significance [para. 171]. The religious petitioners gave evidence that gathering in-person for worship provided benefits in addition to the fulfillment of the religious beliefs described above. These benefits included: i) accommodating members who do not have the means to use technology; ii) identifying specific needs of vulnerable persons in the church community; iii) providing physical, mental and emotional care; and iv) providing comfort and encouragement and reducing loneliness, depression, anxiety, and fear [para. 154].
The respondents conceded that the impugned G&E Orders infringed the religious petitioners’ rights under ss. 2(a), 2(b), 2(c) and 2(d) of the Charter, but in their oral submissions resiled from the admission with respect to s. 2(d). The respondents also accepted that restrictions on gatherings affected freedom of association under s. 2(d) of the Charter [para. 134]. At this point, the judge stated that without necessarily accepting all of the religious petitioners’ s. 2(a), s. 2(b) and s. 2(c) arguments, the respondents had already conceded that those rights had been infringed by Dr. Henry’s G&E Orders, and he found the same. [paras. 168, 172, 174].
The judge also observed that “freedom of expression is understood in Canadian law as all non-violent activity intended to communicate a meaning. Any law or government action that has the purpose or effect of interfering with such an activity is a prima facie breach of freedom of expression. Although it is usually referred to simply as ‘freedom of expression’, s. 2(b) of the Charter guarantees freedom of thought, belief, opinion and expression. While restrictions on gatherings do not have the purpose of restricting communication of meaning, they can have that effect” [para. 169]. The judge accepted the petitioners’ submission that infringement of s. 2(d) occurred when the impugned government action constituted “a substantial interference with freedom of association” in either its purpose or effect, and found that the restrictions on gatherings in the G&E Orders infringed the petitioners’ right to freedom of association under s. 2(d) of the Charter.
The religious petitioners asserted that in Carter v. Canada (Attorney General), the Court determined that the phrase “right to life” might be described as a depreciation in the value of the lived experience. They said that where state action imposed an increased risk of anxiety, loneliness, domestic violence, stress, depression, substance abuse or other factors which could directly or indirectly lead to death, the right to life becomes engaged [para. 180]. The respondents accepted that in-person meetings afforded psychological health benefits to members of religious communities, but said that there was no evidence of the kind of serious psychological harm required by Blencoe v. British Columbia (Human Rights Commission), if they were unable to attend in-person meetings [para. 183]. The Court accepted the respondents’ contentions [para. 184].
The religious petitioners and the intervenor asserted that the impugned G&E Orders made a distinction between assemblies that were religious in nature, and assemblies whose nature was variously economic (business meetings), athletic (gyms and swimming pools), educational (schools are open for in-person learning), social (restaurant gatherings), mental health oriented (support group meetings), or aesthetic (art gallery viewings, the film industry, bands playing at a restaurant) [para. 189]. With respect to s. 15 of the Charter, the respondents contended that the petitioners did not shown that any of the impugned G&E Orders made a distinction based on an enumerated or analogous ground or that such a distinction created a disadvantage. They argued that the gatherings were defined neutrally, and exempted activities such as support groups or counseling were exempted whether delivered in a secular or religious way. Thus, they contended that there was no evidence that the religious petitioners’ right to the equal protection and equal benefit of the law without discrimination had been infringed, for instance religious schools were as open as secular ones [para. 136]. Due to lack of evidence of discrimination and summary submissions by the petitioners, the Court found it unnecessary to expand the jurisprudence relating to s. 15 of the Charter, and made no finding with respect to s. 15.
As the G&E Orders infringed the petitioners’ s. 2(a), (b), (c), and (d) Charter rights, the real issue was whether the impugned G&E Orders could be justified as “reasonable limits” on these freedoms under s. 1 of the Charter [para. 202]. Section 1 of the Charter constrains the ability of legislatures to enact laws that limit rights and freedoms guaranteed in the Charter.
While finding that the G&E Orders were more akin to an administrative decision than a law of general application, the judge decided that the Doré test was the appropriate test to apply as compared to the Oakes test [para. 218]. According to the judge, under the Doré analysis, the issue is not whether the exercise of administrative discretion that limits a Charter right is correct (i.e., whether the court would come to the same result), but whether it is reasonable (i.e., whether it is within the range of acceptable alternatives once appropriate curial deference is given). He further stated that an administrative decision would be considered reasonable if it reflected a proportionate balancing of the Charter right with the objective of the measures that limit the right [para. 216].
The judge found that although the impugned G&E Orders were broad in scope, they were intended to address a pandemic and by necessity, and by design, were broad enough to affect all British Columbians and therefore, the orders were not deemed to be overreaching or disproportionate [para. 232]. The Court found that Dr. Henry had applied her mind to the impact of her orders on religious practices and governed herself by the principle of proportionality [para. 234]. The judge concluded that Dr. Henry’s reasons, both in the preambles to the orders and in the media events, did not exhibit a failure of internal rationality [para. 238]. The respondents pointed to a number of ways in which G&E Orders attempted to minimize impacts on the rights in question. Although the impacts of the G&E Orders on the religious petitioners’ rights were found to be significant, the benefits to the objectives of the orders were considered much more by the judge. Resultantly, the orders were deemed to represent a reasonable and proportionate balance, which justified the limits placed on the religious petitioners’ s. 2 Charter rights under s. 1 of the Charter.
The judge concluded that although ss. 2(c) and (d) Charter rights were infringed by the G&E Orders that predated February 10, 2021, and that the infringement of those rights by those orders could not be demonstrably justified in a free and democratic society, the petitioners failed to satisfy the judge that they were entitled to challenge the G&E Orders on their judicial review under s. 2 of the Judicial Review Procedure Act. The judge found that due to the public health concerns, the infringement of their s. 2 Charter rights by the impugned G&E Orders was justified under s. 1 of the Charter. Lastly, the judge refused to adjudge the validity of violation tickets due to lack of factual background and specific information [para. 253].
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The judge balanced the freedom of expression and the public health by judging the public health measures taken to curb the spread of virus as reasonable restrictions under the Charter. The judge found that although the impugned G&E Orders were broad in scope, they were intended to address a pandemic and by necessity, and by design, were broad enough to affect all British Columbians and therefore, the orders were not deemed to be overreaching or disproportionate. The Court found that Dr. Henry had applied her mind to the impact of her orders on religious practices and governed herself by the principle of proportionality. The judge concluded that Dr. Henry’s reasons, both in the preambles to the orders and in the media events, did not exhibit a failure of internal rationality and attempted to minimize impacts on the rights in question. Although the impacts of the G&E Orders on the religious petitioners’ rights were found to be significant, they were outweighed by the benefits to the objectives of the orders.
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