Pastor's arrest a constitutional abnormality

Has it really come to this? A clergyman has been jailed because he refuses to refrain from doing what our constitution would protect in virtually any other circumstance: preaching and ministering to the full assembly of his church. It's hard to overstate how constitutionally abnormal this situation is.

To wit, Pastor James Coates of the GraceLife Church of Edmonton was arrested on Feb. 16 after turning himself in to the RCMP. Coates was charged for failing to follow public health guidelines for places of worship and for violating a previous undertaking that he would do so. While originally expected to be released following a bail hearing, Coates did not agree to the Crown's conditions and so remains in custody at a provincial remand centre. Coates intends to challenge these conditions in an appeal. If he's unsuccessful, he'll likely remain in custody until his trial in early May.

Contrary to what some have claimed, Coates has not been forbidden from preaching. Rather, the main condition of his release was that he and his church abide by the multiple orders they have received to follow the guidelines for places of worship. These same policies have also been imposed on Alberta retailers.

Coates thus remains free to preach and to minister to his congregation at applicable capacity limits. According to his lawyer, however, Coates disputes that he consented to this undertaking and, in any event, cannot agree to these conditions since he is conscience-bound to hold religious assemblies free of capacity restrictions.

GraceLife's stance has put the Alberta government (to say nothing of the courts) in an unenviable position. It would be one thing if their claim was merely that the strict 15 per cent capacity on religious services in Alberta is more constitutionally restrictive than it needs to be. There's merit to this argument. After all, other provinces (such as Ontario) currently allow for religious gatherings with capacities as high as 30 per cent to take place.

It's clear, however, that Coates and his church will accept nothing less than a full revocation of all COVID-19 restrictions on religious assemblies: no face coverings, physical distancing or capacity limits. Regardless of whether we accept the necessity of such measures — and it's worth noting that many Christian pastors and theologians disagree in good faith on this issue — there's little point in suggesting that these policies are going away any time before the summer, at the earliest.

Yet we shouldn't just dismiss Coates as a fundamentalist receiving his due. There is nothing normal about his arrest, and it's unsettling that this was the Crown's chosen method of enforcement, rather than, say, merely issuing fines against his church.

But there's another, more fundamental reason that Coates's arrest is so disconcerting. Within Canada's constitutional architecture, religion is not merely a service to be deemed essential or non-essential as a matter of policy: it is, at its core, a public good. Our Charter of Rights and Freedoms affirms this through the twin guarantees of religious freedom and religious equality. Both of these protections are reinforced by the principle that the state, as much as it can, must remain neutral toward matters of religion.

The past year has tested the limits of this principle. So far, none of the restrictions that have been imposed on religious gatherings in Canada have actually targeted the content of worship, per se. Preachers can continue to preach the same messages that they did prior to the pandemic. But there's no denying that these policies have profoundly restricted the extent to which religious communities are able to exercise their faith in community with one another.

That said, the Charter expressly allows for limitations to be placed on these freedoms where doing so is demonstrably justifiable. As I wrote in these pages last month, it's reasonable for governments to require religious assemblies to follow empirical guidelines to limit the spread of COVID-19,

COATES HAS NOT BEEN FORBIDDEN

FROM PREACHING.

even if this means issuing fines against places of worship that don't comply. Yet these restrictions, as I also explained, must be constitutionally justified on the basis of non-speculative evidence.

The burden that pandemic restrictions impose on religious communities must be constantly weighed against the health and welfare of the broader community. This balancing is an exercise in proportionality. Even if such measures are currently justified, this won't be the case forever. The hope is that these policies will succeed in reducing the long-term transmission of COVID-19. There are encouraging signs that this may already be taking place, even as public health leaders warn that we shouldn't become complacent.

But make no mistake, 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.

Coates' ordeal is a sobering reminder of just how drastic these policies are. As a pastor, he's willing to endure imprisonment in the fight to allow his church to meet together again as a whole body. None of us should take any joy in the fact that things have gone this far. For the sake of the public good, let's hope that the constitutional balance shifts back in Coates's favour sooner rather than later.