Why did the BC Supreme Court refuse to issue an injunction ordering churches to stop flouting COVID-19 orders while regularly agreeing to industry requests for injunctions to use against protesters?
On Feb. 17, Chief Justice Christopher Hinkson rejected a provincial government bid for an injunction aimed at stopping churchgoers from gathering illegally during the pandemic.
Among Hinkson’s reasons for denying the request from the B.C. government and provincial health officer Dr. Bonnie Henry was concern that if churchgoers defied the injunction, Crown prosecutors wouldn’t charge them.
That would bring the administration of justice into disrepute, Hinkson said.
In his decision, Hinkson cited the case of protesters who blocked ports in the Lower Mainland last year in support of Wet’suwet’en land defenders. Six people were arrested at the Port of Vancouver on Feb. 25 following an injunction granted by Justice Michael Tammen, who called the blockades “a direct attack on the rule of law.”
But no charges were ever laid.
Hinkson’s church ruling said that given the prosecutors’ failure to lay charges against people who defied the port blockade injunction, “I am left to wonder what would be achieved by the issuance of an injunction in this case.”
“If it were granted and not adhered to, would the administration of justice yet again be brought into disrepute because the BC Prosecution Service considers that it would not be in the public interest to prosecute those who refused to adhere to the orders sought from this court?”
Legal experts have in the past questioned B.C.’s use of injunctions, which are often granted against protesters. They have been referred to as a “legal billy club” designed to quell civil disobedience without necessarily offering those affected their day in court.
Last year, 28 people were removed from Wet’suwet’en territory for blocking access to Coastal GasLink pipeline workers in violation of a BC Supreme Court injunction. The year before, under an interim injunction, seven people were removed from the same area. No charges were laid following the police actions.
The arrests a year ago sparked protests across the country, including a blockade on CN Railway tracks in Hazelton, B.C. The company obtained an injunction to clear the track on Feb. 24, 2020. One year later, the Crown is still considering whether to proceed with criminal contempt charges against 14 people who were arrested.
In his recent decision, Hinkson appeared to push back against injunctions that don’t result in charges.
Margot Young, a professor in the Allard School of Law at the University of British Columbia, said she found the decision not to grant an injunction based on past outcomes surprising.
“It strikes me as not a relevant consideration under the test for the granting of an injunction,” Young said.
“We know, in the case of Indigenous land defenders, that injunctions are a tool… and yet they were denied by the court the ability to use that tool here. It’s worth engaging with the reasons for not granting it here but granting it in other cases.”
The fact that the injunction was requested by government and not industry also makes it unusual.
In his ruling against the government and health officer, Hinkson said the province has “alternate remedies” under the Public Health Act to enforce public health orders. People who defy the orders can be arrested and face jail terms and fines.
RCMP have attended B.C. churches that continue to hold services, handing out thousands of dollars in fines. In Alberta, an Edmonton-area pastor was arrested for repeatedly defying health orders and jailed when he refused to accept bail conditions.
Typically, injunctions against protests or homeless camps are sought by corporations or other parties that don’t have other enforcement options.
But Young argued that corporations also have legal tools for enforcing the law without an injunction.
“Injunctions get granted when there are other possibilities for legal responses,” she said, adding that if injunctions were denied every time other options existed, they would never be granted.
Young pointed out that an enforcement order requested with the church injunction would have let health officers detain people before they attended religious events, helping prevent transmission of the virus.
“It makes sense to want to prevent in the times of COVID, because you can fine after the spread happens, but that’s not going to address the problem,” she said.
The government’s application was filed in response to a petition from Riverside Calvary Chapel in Langley, Immanuel Covenant Reformed Church in Abbotsford, Free Reformed Church of Chilliwack, and several church members seeking an exemption from a public health order issued in November that prevents gathering beyond immediate households.
A hearing on the case is scheduled for the BC Supreme Court today.
While the public health order prohibits in-person religious services, it permits drive-in events with more than 50 people as long as they remain in their vehicles, acting deputy health officer Dr. Brian Emerson said in an affidavit.
The churches say the restrictions violate their charter rights. In a Nov. 8 letter referenced in Hinkson’s decision, Immanuel Covenant Reformed Church argued that the duty to obey civil authorities “ends when they command that we engage in behaviour contrary to God’s Word.”
Prohibiting spiritual gatherings conflicts with their beliefs, the church argued. “Although some of these aspects of worship can be performed online, many of them cannot,” it said in its letter.
In his ruling, Hinkson recognized both the health risks and the opportunity for comfort represented by religious gatherings during the pandemic. He stressed that he didn’t condone the churches’ decision to hold services in violation of public health orders.
Hinkson added that he didn’t think an injunction would “overcome the deeply held beliefs of the petitioners and their devotees.”
Before last week’s decision rejecting an injunction against churches, Hinkson granted one in June that allowed the Vancouver Fraser Port Authority to remove a homeless camp located on its property adjacent to Vancouver’s Crab Park.
As in the church gathering case, public health concerns, stability during crisis and benefits of community were all considerations in Hinkson’s decision about the homeless camp. In addition, he acknowledged that Crab Park residents represented a higher-risk demographic more likely to suffer from underlying health conditions during the pandemic.
But Hinkson rejected evidence from former B.C. provincial health officer John Millar that said the stability provided by homeless camps could reduce stress and have mental health benefits for those living there.
“There is simply no basis in the evidence before me for Dr. Millar’s assertions that living at the encampment assists anyone there in overcoming the challenges of addiction or putting their lives on a better track to improve their overall health and well-being,” Hinkson said in granting the injunction.
It would result in 46 arrests and dozens more displaced from their makeshift shelters when the camp was removed on June 16.
Michelle Silongan, a Vancouver lawyer who represented some of the those charged at Crab Park, said the camp offered people the ability to isolate in tents in a way they couldn’t on the streets or in shelters.
“We advanced COVID arguments for why people, all things considered, should be sheltering in place in a parking lot that was used for buses for cruise ships, which were obviously not docking in Vancouver,” she said.
“Are homeless people, their interests and their inability to stay safe and secure during a pandemic any less important than… churches or corporations?”
In granting last summer’s injunction, Hinkson rejected arguments that camp residents had a charter right to access the lot owned by Vancouver Fraser Port Authority.
In his recent decision, he acknowledged that the churches’ charter rights would be infringed by an injunction — a main difference from Ontario’s successful bid to shut down a Toronto-area restaurant that remained open in violation of pandemic restrictions, he said.
At a media briefing held last week, B.C. Health Minister Adrian Dix would not comment on how the province would proceed following the ruling, saying decisions would be left up to enforcement agencies.
“Obviously, the orders apply, and they apply across B.C.,” Dix said, acknowledging faith leaders across the province who respect pandemic restrictions.
“People have followed those rules and continue to,” Dix said. “I think one of the real tenets of faith is to keep one another and support one another in our spiritual health, but also our physical health.”
Young said Hinkson’s decision isn’t precedent setting, but “it does now become part of the conversation in a potentially authoritative persuasive way.”
“I can’t help but think that an important question is to look at who’s getting injunctions granted against them and who isn’t,” she said. “It’s a question worth engaging with.”
The churches’ petition to be excluded from pandemic restrictions based under the Public Health Act will examine the larger constitutional issue about how far the province can go to restrict civil liberties during the pandemic, Young said.