Court rules public health order banning indoor religious gatherings are a justified infringement on Charter rights to freedom of religion and expression

Administrative law – Decisions reviewed – Health authorities – Ministerial orders – Judicial review – Compliance with legislation – Standard of review – Reasonableness – Human rights complaints – Religion – Charter of Rights and Freedoms – Freedom of religion – Physicians and surgeons – Health authorities

Beaudoin v. British Columbia, [2021] B.C.J. No. 551, 2021 BCSC 512, British Columbia Supreme Court, March 18, 2021, C.E. Hinkson C.J.S.C.

The petitioners, including three Fraser Valley churches and four individuals, sought a review of a number of provincial health officer Dr. Bonnie Henry’s COVID-19-related orders regarding gatherings and events on the basis that they infringed upon their Charter rights (ss. 2(a) – (d), 7 and 15), and are overbroad, arbitrary and disproportionate. They sought, among other things, for the orders to be declared of no force and effect as they unjustifiably infringe upon the petitioners’ Charter rights. The order at issue at the hearing was the latest order of February 10, 2021 which was then in effect, extending restrictions indefinitely. At that time, outdoor religious services were permitted via drive-in events of up to 50 vehicles, but no indoor faith gatherings had been permitted for several months.

The court considered as part of the record the information that was available to Dr. Henry when making her impugned orders. The standard of review was considered to be reasonableness given that the impugned orders are in the areas of science and medicine. The respondents admitted, and the court agreed, that the orders infringed the petitioners’ Charter rights under ss. 2(a) – (d). The court did not make any findings as to whether their rights under s. 7 or s. 15 were engaged, noting these claims were only addressed in a summary way by the petitioners, whose focus was on their s. 2 rights.

In considering whether the infringement was justified under s. 1 of the Charter, the court found that the impugned orders are more akin to an administrative decision than a law of general application, noting the Doré reasonableness framework applied. The court held the orders were based upon a reasonable assessment of the risk of transmission of the virus during religious and other types of gatherings. The court considered both potential bases of unreasonableness under the Vavilov decision, and concluded that Dr. Henry’s decision fell within a range of reasonable outcomes. Although the impacts of the orders on the petitioners’ rights were considered significant, the benefits to the objectives of the orders were “even more so.” Thus, the orders were justified under s. 1 of the Charter.

A notice of appeal from this decision has been filed.

This case was digested by Kara Hill, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact Kara Hill at khill@harpergrey.com.

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