Supreme Court Refuses to Hear Appeal Challenging Manitoba’s COVID Restrictions on Churches

The Supreme Court of Canada in Ottawa on June 16, 2023. The Canadian Press/Adrian Wyld

The Supreme Court of Canada has declined to hear the appeal challenging Manitoba’s lockdown restrictions filed by a handful of churches, a decision in which a Canadian constitutional rights group has expressed disappointment.

The Justice Centre for Constitutional Freedoms (JCCF) described the case as “critically important,” because it could have served as a model for governments in accommodating charter-protected rights and freedoms when crafting public health measures.

“Our clients are disappointed in the Supreme Court’s decision not to hear their appeal,” Attorney Allison Pejovic said in a press release following the court’s March 14 decision.

“It was past time to have a conversation with Canada’s highest court about whether Charter-protected rights such as rights to worship and assemble ought to be prioritized over economic interests, such as ensuring that the Winnipeg Jets could practice indoors and that movie productions could continue.”

The application, filed Sept. 18, 2023, involved five Manitoba churches, a pastor, and a deacon asking the Supreme Court to hear their appeal. The lower courts previously dismissed their constitutional challenge to a series of church closures and restrictions on outdoor gatherings during the COVID-19 pandemic in 2020 and 2021.

The JCCF argued that while the province of Manitoba closed churches, it permitted businesses like taxis, university classes, film productions, and liquor stores to operate. At the same time, outdoor gatherings were reduced to five people or less while big box stores were allowed to remain open.

It was ruled government public health officials should not be “second-guessed” during the initial case heard in May 2021 before the Manitoba Court of King’s Bench. The court also ruled the government did not need to meet a high threshold of providing evidence to justify that violations of the Canadian Charter of Rights and Freedoms were reasonable.

The court did not order the applicants to pay court costs despite the unsuccessful outcome, because there was a significant public interest in having the case adjudicated.

‘Grave Injustice’

The applicants appealed in December 2022 and the appeal was dismissed by the Manitoba Court of Appeal in June 2023. In their Application For Leave to Appeal, JCCF lawyers argued the case raised several issues of national importance, such as how constitutionally protected activities are to be “juridically measured against comparable non-constitutionally protected activities.”

JCCF lawyers also asked whether reliance on the “precautionary principle” satisfies the government’s onus under section 1 of the charter to provide “cogent and persuasive” evidence to justify measures that infringe on charter rights.

Ms. Pejovic said it was important to hear from the Supreme Court on the importance of respecting the charter during emergencies.

“Governments urgently needed the Supreme Court of Canada’s guidance as to the degree to which they should accommodate Charter rights during a future pandemic or other emergency proclaimed by government,“ she said. ”Leaving that issue undecided at the highest level is a grave injustice for all Canadians.”

The Supreme Court refused in August 2023 to hear similar appeals by two Ontario churches that challenged pandemic bans on in-person worship. Pastor Henry Hildebrandt and the Aylmer Church of God were ordered to pay $274,000 in fines for violating pandemic rules by holding several drive-in services in 2021, according to the JCCF.

The Aylmer Church of God and Trinity Bible Chapel lost to both Ontario’s Superior Court of Justice and Court of Appeal, with the courts ruling that church restrictions were a justifiable infringement on Canadians’ freedom of religion.

The churches appealed in May, but the Supreme Court announced it would not hear the case. Canada’s top court also claimed it would not hear similar appeals from three British Columbia churches.