When the COVID-19 virus first appeared in March 2020, few religious institutions in Canada resisted lockdown orders that forbade or severely restricted worship activities. The nature of religious services, which tend to feature extended lingering, singing, and close contact between worshipers, made it clear that they could be high-risk centres of infection. And, like the public at large, religious leaders expected shutdowns to be extremely limited in duration. However, as provinces implemented reopening plans that seemingly favoured non-religious gatherings, such as allowing attendance at restaurants, bars, and big box stores, over constitutionally protected religious ones, resistance to ongoing restrictions intensified.
In Canada, restrictions on religious gatherings were extreme. In Ontario alone, religious gatherings were restricted to just five people from March to June 2020. From December 2020 until February 2021 and from April to June 2021, religious gatherings—even when they were conducted outdoors—were limited to just 10 people.
Part of the problem, as we will discuss in this chapter, is that although freedom of religion is a well-documented and protected right in Canadian constitutional traditions, the surrounding rights that allow believers to actually manifest their faith—such as freedom of thought, belief, and conscience—have received scant attention in the jurisprudence.
Government restrictions on in-person worship services during the COVID-19 pandemic represented the most serious infringement in recent history on one of the most fundamental aspects of religious practice: gathering as a congregation.
Throughout the pandemic, groups advocating for religious liberties argued that religious institutions were necessary safeguards of freedom and militate against excessive state authority by promoting pluralism, in the sense of granting sources of meaning, belonging, and moral order to individuals’ lives.
From the perspectives of these groups, religious groups limit the sphere of authority of state action. As the Association for Reformed Political Action (ARPA) put it, “Government shares ‘constitutional space’ with these other institutions which, like governments, also have responsibilities, duties, and a constitutionally protected public role during a time of crisis.” As a general principle, these groups thus advocated for “maximum feasible accommodation”—i.e., granting religious and other institutions of civil society the maximum liberty to operate in their normal spheres of activity, subject only to core state functions.
For religious groups, gathering in worship is an activity that rightfully attracts special constitutional protection, as it fulfills purposes at the core of section 2(a), 2(b), and 2(c) charter rights. Proponents of religious liberty argue that restrictions on religious gatherings ought to be significantly more difficult to justify, since religious institutions and their activities contribute to the benefits of a free society.
The upshot of this view? In order to justify substantial limitations on the right to gather in worship, merely pointing to evidence of the possibility of transmission at any gathering is not enough. Rather, given the strong protection our Constitution grants to religious liberty rights, the government has a general onus of demonstrating, when imposing gathering limits or defending them in a court challenge, that the reduced transmission from such limitations would be sufficient to justify the severity of the intrusion into constitutional rights.
At the time, scientists surmised that the virus’s exceptionally high attack rate in Skagit reflected two types of transmission, but in retrospect we know that COVID-19 spreads most easily through fine droplets emitted through talking, coughing, and singing. Thus, congregational singing, though undoubtedly a protected religious activity, might fall into the category of activities that can be specifically connected to a demonstrated risk of transmission and restricted accordingly.
Justice Davies in TICC agreed that there was a serious issue before the court: namely, whether the government’s physical-distancing restrictions were carefully tailored enough that they would not impair religious freedoms any more than was reasonably necessary to respond to the COVID-19 pandemic. She also noted that Ontario had already conceded that the regulations infringed the TICC’s religious freedoms by impairing the ability of people to attend their church services.
At the same time that the TICC, and all other religious bodies, were restricted to having only 10 people attend religious services, Ontario regulations also allowed some businesses to remain open at up to 50 percent capacity and others still to operate without enforcing the indoor mask mandate. On the other hand, public health authorities and available evidence suggested that COVID-19 had been spread at some religious gatherings and that there was a very high probability that someone in a 300-person crowd would be contagious with COVID-19.
Justice Davies also ruled that the TICC’s case met the second prong of the test for interim injunctions: the TICC and its followers would suffer irreparable harm to their religious freedoms if the injunction was not granted. The justice noted here that the church’s pastor, Peter Youngren, had testified that attending religious services was mandated by the Bible, and that several members of the TICC said in-person prayer was an important part of their religious practice. Because the TICC had more than 1,500 members, there was no way all their members could attend religious services under the 10-person maximum gathering restrictions. Their freedom of religion would be irreparably and immeasurably harmed by the government’s decision to prevent them from attending their religious services.
It was at the third step of the test for concluding an injunction was appropriate that Justice Davies sided with Ontario, dooming the TICC’s case for an interim injunction. The justice noted that although the TICC was seeking an injunction against the gathering restrictions only for itself, the effect of a ruling in its favour would lead other churches to seek similar injunctions based on this precedent.
While it was certainly correct that a ruling in the TICC’s favour would have a significant precedent-setting impact, her decision was still a disappointing result. First, there was evidence before the court that the TICC’s circumstances were exceptional, given the size of its facility. Second, the task of a judge on an application for an injunction for interim relief is to properly attend to the circumstances of those appearing before her who are currently suffering irreparable harm, not to consider the broader policy implications of an injunction.
