Charter challenge by 2 Ontario churches opposed to public health restrictions gets underway Monday

A challenge by two Ontario churches of public health restrictions amid the COVID-19 pandemic begins Monday, with their lawyers arguing the measures violate the right to freedom of religion and assembly under the Constitution.

The proceedings from the Ontario Superior Court of Justice in St. Thomas will be before Justice Renee Pomerance and shown virtually. 

The Church of God in Aylmer and the Trinity Bible Chapel in Waterloo were charged in the spring of 2021 for various infringements of the public health restrictions put in place to help curb the spread of the virus.

Church leaders held in-person gatherings despite provincial prohibitions, getting fines and charges under the Reopening Ontario Act. 

Eric Adams, a constitutional law expert, isn't involved in the case, but spoke to CBC News on what can be expected during the hearing.

"The burden will be on the churches to demonstrate that their rights have been infringed by these public health measures, and they'll actually have an easy time doing that and the government won't dispute it," said Adams, a vice-dean with the University of Alberta law school.

"It's absolutely clear in the case law that if you restrict the numbers that are able to worship or you constrain the ability of churches to gather, you've interfered with the freedom of religion. The question then becomes, 'Has the government done so in a reasonable manner?' The onus will then be on the government to demonstrate that its decisions were justified in a free and democratic society."

Courts in other provinces, including British Columbia and Manitoba, have decided restrictions that limit religious gatherings during the pandemic represent a reasonable limit on the rights guaranteed under Canada's Charter of Rights and Freedoms. 

"The challenge will be on churches and others who challenge these restrictions to really put forward a compelling case that governments have substantially overreached in their public health objectives and the restrictions that they've imposed, and no court to date has felt comfortable making that call," Adams said. 

In the midst of a continuing public health crisis as a result of the Omicron variant, it's unlikely the Ontario court will say the province acted unreasonably, Adams said. 

At issue are restrictions that limited the gatherings churches in the province in the spring of 2021.

A third church, the Wellandport United Reform Church from the Niagara Region, was part of the charter challenge, but has since removed itself from the court proceedings. 

The churches wanted to have their cases heard separately, but a judge ordered they go together, Lisa Bildy, a lawyer with the Justice Centre for Constitutional Freedoms, said in May.

The decision to hear both churches' arguments together means the province can file one joint set of affidavits to the court and any witnesses for the province would only be cross-examined once.