Judge asks, where is Dr. Henry's affidavit?
Lawyer grilled over top doctor's thought process in restricting attendance at places of worship
B.C.'s top trial court judge questioned a B.C. government lawyer Tuesday as to why Dr. Bonnie Henry, the provincial health officer, did not provide an affidavit in the case of three churches claiming their religious rights were violated when church services were restricted under COVID19 regulations.
Gareth Morley, the government lawyer, had barely begun his submissions in the Vancouver court case before he faced a number of questions from B.C. Supreme Court Chief Justice Christopher Hinkson.
Morley told the judge that Henry's duty under the constitution was to protect public health in a way that proportionately and reasonably limited the Charter freedoms that the three Fraser Valley churches claim were breached.
The judge asked him who decides what is proportionate and Morley responded by saying it was Henry who did so and that that was the subject of review by the court.
“Dr. Henry is really holding all the cards,” said Hinkson. “She knows why she's doing things.”
The judge noted that there was no affidavit filed by Henry, although there was an affidavit filed by another doctor in the case.
“So how do I know what Dr. Henry is doing and why?” asked the judge.
Morley noted that the process of public health orders being issued allows a party affected by an order to seek a reconsideration of the decision, an avenue that was pursued by the churches.
The judge said he wasn't sure the court was equipped to test the reasonableness of medical opinion and noted that it was not a battle of experts before him.
“But when you deprive the complainants of the ability to understand how (Dr. Henry) got from A to B, the court can't look at it, it really isn't much of a review,” said Hinkson. “It gives Dr. Henry absolute authority and if she chooses not to share her thought process with the court, there's no oversight.”
The judge said that the churches were entitled to know how the orders would allow someone to go into a bar and watch a hockey game for an hour or two but at the same time prevent someone from sitting in a church for the same amount of time.
“It is a point I'm struggling with,” he said. “Nobody elected Dr. Henry. She's been appointed and she has a difficult job. But if you just take it on faith, that's an ironic term to use. If you just take it on faith that she's balancing all of these things.”
Morley said Henry had given reasons for her health orders through her weekly televised news conferences. “And in almost every one of those, at least in the last while, she has talked about this issue in the religious communities.”
When Hinkson said that none of the information from the news conferences was before him, Morley replied that it was in fact part of the record filed in the case.
The Riverside Calvary Chapel, the Immanuel Covenant Reformed Church and the Free Reformed Church of Chilliwack are seeking to set aside the public health orders restricting religious gatherings. Morley is to continue his submissions Wednesday.