Manitoba’s temporary ban on in-person religious services and severe limits on other gatherings, including protests, were reasonable public-health responses to the COVID-19 pandemic, and therefore lawful, a judge has ruled.
The case is notable because it is among the few in which COVID-restrictions have been challenged in a Canadian court, and because it featured an attack on the scientific evidence relied on by public-health officials and a Stanford professor offering an alternative to lockdowns.
It is also notable because the judge who decided the case – Chief Justice Glenn Joyal of the Manitoba Court of Queen’s Bench – had announced publicly that he had been followed to his home and his cottage. That announcement prompted John Carpay, a lawyer who led the Justice Centre for Constitutional Freedoms, a Calgary-based group involved in the litigation, to take a temporary leave of absence. He said he had hired a private investigator to hold government officials accountable for following COVID-19 restrictions, and had not intended to influence any court cases. (The episode is not mentioned in the Chief Justice’s ruling.)
The Manitoba case was brought by seven churches, two church leaders and a “hugs over masks” protester, objecting to several restrictions in place between November, 2020, and January of this year. The restrictions ordered by Chief Provincial Public Health Officer Brent Roussin included not only the closing of in-person religious services but also a ban on most gatherings inside homes, and a limit on outdoor gatherings to five people.
Chief Justice Joyal said judges need to show “humility” about their own limitations when governments are faced with a public-health crisis.
“In the context of this deadly and unprecedented pandemic, I have determined that this is most certainly a case where a margin of appreciation can be afforded to those making decisions quickly and in real time for the benefit of the public good and safety.”
Allison Pejovic, a lawyer for the churches, said the ruling sends the wrong message.
“The ruling unfortunately sends a message that Charter rights are effectively suspended during an emergency, and that even over-reaching government action which has catastrophic consequences on society will be excused. The ruling is in stark contrast to prominent decisions from the United States, Scotland and Germany, which found that constitutional rights and freedoms do not disappear, even during an emergency situation.”
Manitoba Justice Minister Cameron Friesen praised the ruling, and said the province had enacted “reasonable measures to prevent the spread of the virus, keep our most vulnerable citizens safe, and prevent the overwhelming of the hospital system.”
The churches, including the Gateway Bible Baptist Church, alleged that the restrictions violated, among others, their freedom of religion, assembly and expression, under the Canadian Charter of Rights and Freedoms. They also challenged Dr. Roussin’s authority, saying it was undemocratic and that only the legislature could make such laws. Chief Justice Joyal rejected that challenge, in a separate ruling, saying the legislature had properly given Dr. Roussin the authority to address immediate and urgent threats to public health.
Testifying in support of the churches was Jay Bhattacharya, a Stanford professor of health policy, and one of three authors of the Great Barrington Declaration, an alternative approach to the pandemic opposing widespread lockdowns.
That alternative would have targeted protections at people most vulnerable to dying from COVID-19: anyone over 60 and those with compromised immune systems. The premise, as summarized by Chief Justice Joyal, was that “it is necessary to build herd immunity in a population by allowing people at low risk of death to live their lives normally while protecting those who are at a higher risk.”
In legal terms, the churches relied on the Great Barrington Declaration to show that Manitoba had limited rights more than necessary to protect public health. The first section of the Charter of Rights permits governments to justify limits on a right. But those limits have generally been required to be no more than the minimal necessary to achieve the government’s goals.
Chief Justice Joyal said he did not find the Great Barrington Declaration a practical or ethical approach. One-third or more of COVID-19 cases resulting in death or hospitalization occurred in those under 60, he said. More than 40 per cent of COVID-19 patients admitted to intensive-care units were under 60. He pointed to the need to protect Indigenous persons, disproportionately affected by COVID-19, many of them off-reserve.
The approach raises “ethical and moral questions connected to the risks of knowingly exposing any citizen, including some of those most vulnerable persons who are less identifiable because of their integration into the general population,” he wrote.
Tabitha Ewert, a lawyer for an intervenor group, the Association for Reformed Political Action (ARPA) Canada, which had stressed the importance of in-person services to the Chief Justice, said she was disappointed with “the lack of appreciation for other aspects of public health,” such as spiritual health.
The ruling follows a court decision in March in British Columbia upholding that province’s temporary ban on in-person religious services, and one last September in Newfoundland and Labrador upholding restrictions on entering the province.
Karen Busby, a professor at the University of Manitoba’s Robson Hall, called Chief Justice Joyal’s decision expected. “He’s saying that in times of emergency, times where information is coming fast and furious, courts should not be ruling on these matters, unless there is something egregious going on, which there isn’t.”
Editor’s note: A previous version of this article incorrectly stated that John Carpay resigned as president of the Justice Centre for Constitutional Freedoms. In fact, he took a temporary leave of absence and has since returned to the role. This version has been corrected.
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