BC aims for balance on curbing COVID-19 spread and religious freedoms

The British Columbia government says the provincial health officer has to strike a balance between curbing the spread of COVID-19 and religious practice, which may at times affect certain rights under the Canadian charter.

Lawyer Gareth Morley told the B.C. Supreme Court on Tuesday that Dr. Bonnie Henry is using "non-pharmaceutical interventions" to ensure the population remains healthy until vaccines are prevalent.

Morley, who works for the legal services branch of the Attorney General Ministry, said it is agreed that the province is in the middle of a pandemic.

"And measures taken to protect public health, to protect lives, to protect people from serious illness, and to protect the ability of the health-care system itself to respond, that those are the sorts of measures that can limit charter rights, including freedom of religion."

Henry has a duty under the Constitution to "proportionally and reasonably" limit freedoms by preventing the gathering of people to ensure their health and safety, Morley said.

Chief Justice Christopher Hinkson asked who decides whether the limits are proportional or reasonable, adding that he wants to understand how the provincial health officer is making her decisions.

"Aren't the churches entitled to know why if you go to the bar and watch a hockey game for an hour or two, you can't sit in a church for an hour or two? It is a point I struggle with."

Hinkson said he understands Henry has a difficult job, but she hasn't explained why or how she is making the decisions.

"If she chooses not to share her thought process with the court, there's no oversight," he said.

Morley said the decisions are made after careful review by health officials and experts.

So balancing religious rights and protecting people from an "out-of-control epidemic" is a matter of judgment, he said, adding that Henry met with religious leaders and health officials while making her decisions.

Earlier Tuesday, a lawyer for several British Columbia churches told the court the province's COVID-19 restrictions substantially interfere with their right to freedom of religion.

Paul Jaffe argued religion is far more than belief, thoughts and opinions — rather, it's the "actual practice" of those things in ways that are an important part of the faith.

"There couldn't be, I say, a more substantial interference with religious freedom than to prohibit them from gathering to worship — absolutely integral to their faith," he said.