'Are civil liberties contingent on hospital capacity?' Two southwestern Ontario churches begin charter challenge against COVID-19 restrictions

A charter challenge against COVID-19 pandemic restrictions by two churches got underway in a St. Thomas, Ont. court on Monday.

Lawyers for The Church of God in Aylmer, Ont. and the Trinity Bible Chapel in Waterloo, Ont. spent the day arguing that measures in place in 2021 violated the right to freedom of religion and assembly under the Constitution.

"All restrictions are on the table," says Rob Kittredge, a lawyer for the Justice Centre for Constitutional Freedoms (JCCF).

Three days have been set aside for the challenge at the Ontario Superior Court of Justice in St. Thomas. The challenge is being heard before Justice Renee Pomerance.

"The project here is not to look at things today," says Ari Goldkind, a criminal lawyer who is not connected to this case, but is familiar with the charges against the two churches.

"We know that right now, boosting and vaccination doesn't prevent the spread of Omicron. But if you go back to when the court has to look at this matter back into early 2021, the restrictions were under a different rubric. There were no more than 10 people allowed and the virus was thought to be prevented by having a number of people standing shoulder to shoulder."

Goldkind feels the churches will have to prove whether the purpose of limitation on the freedoms was fair, proper and reasonable.

The JCCF spent a large part of Monday arguing indoor vs. outdoor gathering restrictions, and the likelihood of contracting COVID-19.

JCCF lawyer Lisa Bildy called restriction on outdoor gatherings is "unconstitutional."

Bildy stated, "When evidence is clear that restrictions outdoors don't make sense, the Church of God, which has many acres of space, has many charges for outdoor services."

She says police drones flew overhead, and they were charged with contempt of court, and paid massive fines (over $200,000) for outdoor services.

"There are many emergency orders that many in the public didn't agree with - restaurants, gyms and even elective surgeries have been cancelled,"says Goldkind. "But that doesn't mean if the order is properly given, and if the law is properly done and (you0 don't like it or don't agree with it doesn't mean you can go out and do it claim-free."

Goldkind says those disagreements have led to protests.

"The essential spirit behind them was for the greater good, hospital capacity, preventing the spread," says Goldkind.

"These are things that will be very difficult to get a Superior Court judge to overturn or to say the government did wrong with the information that was available at that time."

Bildy did state Monday that government has to be put to the test at some point.

"Are our civil liberties contingent on hospital capacity?" Bildy asks.

This is not the first time a challenge has been made in Canada.

Judges in other provinces like B.C. and Manitoba have ruled pandemic restrictions put in place were not in violation of charter rights.

"Hindsight is not the measure we should be using," says Pomerance.

Scientific information has changed during the pandemic, but Goldkind says this is about what was known in 2021.

"Was the government's purpose to restrict, as minimally as possible to intrude, with sacrosanct rights and freedoms?"

Goldkind adds, "It is likely - given the time back then - that the court will side with the government. So far throughout Canada, people who have made these kinds of arguments have lost, but as we see the science changing and the virus changing, one never knows when the first court in the country may step up and say what the government has done is a step too far."

The JCCF arguments will continue to be heard until Tuesday morning when the intervener and the province will get a turn to speak.