End limits on religious gatherings
Two Ontario churches — Aylmer’s Church of God Restoration and Waterloo’s Trinity Bible Chapel — recently argued in the Ontario Superior Court that they shouldn’t be fined for violating restrictions on religious gatherings that were meant to curb transmission of COVID-19. Such measures, they contend, unjustifiably limit freedom of religion under the Canadian Charter of Rights and Freedoms.
Significantly, the restrictions being challenged are not those currently in place throughout Ontario, but the limits that were in force last spring. At the time, COVID-19 cases were on the rise, hospitals were at or were exceeding their capacity and, crucially, vaccines (to say nothing of booster shots) were not yet widely available.
Even if this particular charter challenge is dismissed, it would be a mistake to conclude that the Ontario government has been granted an ongoing licence to restrict religious gatherings with impunity. Indeed, the government seems to have already affirmed that a time is coming — perhaps very soon — when these limits will no longer be demonstrably justified.
In January, the Ontario government implemented another round of restrictions on in-person gatherings to combat a rapid rise in cases brought on by the Omicron variant. Indoor religious services were notably exempt from new capacity limits, even as restaurants and movie theatres closed their doors. So long as worshippers wore their masks and maintained a two-metre distance from each other, they could continue to gather at the same capacities that have been in place since last summer.
Some will, no doubt, object to the seemingly preferential treatment that churches and other places of worship have received during the Omicron wave. After all, they’ll say, the virus doesn’t care whether you’re assembled for worship or to watch a hockey game. Why should churches be allowed to gather when non-religious assemblies are prohibited?
These objections fail to appreciate not only the unique constitutional calculus for restricting religious gatherings, but also how this calculus has changed over the past year. While less likely to prevent transmission of Omicron than previous variants, Ontario’s successful rollout of COVID-19 vaccines has played a significant role in curbing hospitalizations and deaths. This has allowed the province to take on more risks than it did during the earlier stages of the pandemic.
Our capacity to adopt such risks, however, also demands transparency about our priorities as a society and, just as importantly, how those priorities are reflected in our law.
Places of worship eschew the classifications of “essential” and “non-essential” that have come to dominate our pandemic vocabulary. By listing religious freedom among the “fundamental freedoms,” our charter affirms that the free exercise of religion is a public good worth protecting. Limitations on this freedom accordingly demand a higher level of justification than activities that don’t receive such constitutional protection.
Overall, religious communities have shown considerable patience throughout the pandemic as governments have cycled through varying restrictions on their ability to gather for worship. But these restrictions have come at a high cost. Many religious rites and sacraments can only be administered in person or as part of an assembled religious body; to prohibit a church’s full membership from gathering thus undermines a crucial aspect of its worship.
As time goes on, the cost of being unable to participate in religious gatherings without restrictions is only going to grow greater. As I wrote in these pages last February (in response to the arrest of an Alberta pastor who was jailed for refusing to abide by such limits), “the constitutional cost of restricting peaceful assemblies — religious or otherwise — will eventually outweigh the relative public benefit. This is not a question of if but when.”
Those words remain just as true now as they did a year ago. Thankfully, the Ontario government appears to have tacitly accepted this conclusion: under the province’s current reopening plan, places of worship are set to have all capacity restrictions lifted by midmarch, even if masks and other best practices may remain in place until the summer.
That day can’t come soon enough.
THE FREE EXERCISE OF RELIGION IS A PUBLIC GOOD WORTH PROTECTING.