COURT OF APPEAL FOR ONTARIO
CITATION: Ontario (Attorney General) v. Trinity Bible Chapel, 2023 ONCA 134
DATE: 20230301
DOCKET: C70528
Doherty, Zarnett and Sossin JJ.A.
BETWEEN
The Attorney General of Ontario
Applicant/Responding Party
(Respondent)
and
Trinity Bible Chapel, Jacob Reaume, Will Schuurman, Dean Wanders, Randy Frey, Harvey Frey, and Daniel Gordon
Respondents/Moving Parties
(Appellants)
AND BETWEEN
His Majesty the King in Right of Ontario
Applicant/Responding Party
(Respondent)
and
The Church of God (Restoration) Aylmer, Henry Hildebrandt, Abram Bergen, Jacob Hiebert, Peter Hildebrandt, Susan Mutch, Elvira Tovstiga, and Trudy Wiebe
Respondents/Moving Parties
(Appellants)
Rob Kittredge and Hatim Kheir, for the appellants
Josh Hunter, Ryan Cookson, Maia Stevenson, and Sean Kissick, for the respondent
André Schutten and Tabitha Ewert, for the intervener Association for Reformed Political Action
Heard: December 20-21, 2022
On appeal from the order of Justice Renée M. Pomerance of the Superior Court of Justice, dated February 28, 2022, with reasons reported at 2022 ONSC 1344.
Sossin J.A.:
OVERVIEW
[1] It has become commonplace to observe that the COVID-19 pandemic represented an unprecedented challenge for governments. Individuals, families, and communities looked to governments to take urgent action to reduce the transmission of the virus, mitigate its threat, and manage its consequences. The question on this appeal is whether the government of Ontario went too far in the actions it took and unreasonably infringed on the constitutional rights of religious communities. The appellants are two churches and their members who were charged with contravening several of Ontario’s COVID-19 regulations imposing capacity restrictions on indoor and outdoor religious gatherings in late 2020 and early 2021. They each brought motions to set aside court orders made against them on the basis that the authorizing regulations infringed s. 2 of the Canadian Charter of Rights and Freedoms.
[2] Trinity Bible Chapel is a church located in Waterloo, Ontario, in the Waterloo Public Health Unit (“WA”). Jacob Reaume is the lead pastor, and the other named parties are church elders and associate pastors. While the church initially complied with pandemic regulations, it began disobeying public health restrictions on in-person gatherings in December 2020. Ontario obtained a restraining order under s. 9 of the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, S.O. 2020, c. 17 (“ROA”), directing compliance with applicable gathering limits. However, the church continued to defy regulations and faced various contempt proceedings and further fines.
[3] The Church of God (Restoration) is a non-denominational religious organization located in Aylmer, Ontario, in the Southwestern Public Health Unit (“SW”). Heinrich (Henry) Hildebrandt is the pastor, and the other named parties are church elders or former elders. While the church initially complied with pandemic regulations, in response to a January 2021 lockdown it began holding large-scale, in-person services of several hundred people, and was similarly subject to restraining orders under s. 9 of the ROA. As a result of continued non-compliance, the church has faced various contempt proceedings and fines.
[4] Different regulations were in force at different times and in different Public Health Units, based on a zone-by-zone approach across the province. The regulations at issue applied to organized public events, social gatherings, and gatherings for the purposes of conducting religious services, rites, or ceremonies. The appellants did not challenge those portions of the regulations that only imposed physical distancing requirements, but rather those imposing numerical or percentage capacity restrictions on indoor and outdoor religious gatherings, that were in force between December 2020 and July 2021.
[5] These regulations evolved over time and in response to particular public health and policy dynamics. During the relevant period, they all imposed restrictions on religious gatherings, with indoor limits ranging from 10 people to a percentage of room capacity (e.g., 15% or 30%), while the outdoor limits ranged from 10 people to 100 people, to no limit but with physical distancing.
[6] The regulations challenged as unconstitutional, and their corresponding restrictions on religious gatherings, are summarized as follows (the “challenged regulations”):
| Date | Public Health Unit | Legislation | Indoor Religious Gatherings | Outdoor Religious Gatherings |
|---|---|---|---|---|
| September 19, 2020 to December 25, 2020 | SW | O.Reg. 364/20, Sch 3, ss. 1 and 3-4 | 30% of room capacity | 100 people |
| November 23, 2020 to December 25, 2020 | WA | O.Reg. 263/20, Sch. 3, ss. 1 and 4-5 | 30% of room capacity | 100 people |
| December 26, 2020 to February 15, 2021 | SW WA |
O.Reg. 82/20, Sch. 4, ss. 1-2 | 10 people | 10 people |
| February 16, 2021 to February 28, 2021 | SW | O.Reg. 263/20, Sch. 3, ss. 1 and 4-5 | 30% of room capacity | 100 people |
| February 16, 2021 to March 28, 2021 | WA | O.Reg. 263/20, Sch. 3, ss. 1 and 4-5 | 30% of room capacity | 100 people |
| March 1, 2021 to March 28, 2021 | SW | O.Reg. 364/20, Sch. 3, ss. 1 and 3-4 | 30% of room capacity | 100 people |
| March 29, 2021 to April 2, 2021 | SW WA |
O.Reg. 364/20, Sch. 3, ss. 1 and 3-4 O.Reg. 263/20, Sch. 3, ss. 1 and 4-5 |
30% of room capacity | No limit, but must maintain physical distancing |
| April 3, 2021 to April 16, 2021 | SW WA |
O.Reg. 82/20, Sch. 4, ss. 1-2 | 15% of room capacity | Number that can maintain physical distancing |
| April 17, 2021 to April 18, 2021 | SW WA |
O.Reg. 82/20, Sch. 4, ss. 1-2 | 15% of room capacity | Number that can maintain physical distancing |
| April 19, 2021 to April 22, 2021 | SW WA |
O.Reg. 82/20, Sch. 4, ss. 1-2 | 10 people | 10 people |
| April 23, 2021 to May 21, 2021 | SW WA |
O.Reg. 82/20, Sch. 4, ss. 1-2 | 10 people | 10 people |
| May 22, 2021 to June 10, 2021 | SW WA |
O.Reg. 82/20, Sch. 4, ss. 1-2 | 10 people | 10 people |
| June 11, 2021 to June 29, 2021 | SW WA |
O.Reg. 82/20, Sch. 9, ss. 1-2 | 15% of room capacity | Number that can maintain physical distancing |
| June 30, 2021 to July 15, 2021 | SW | O.Reg. 263/20, Sch. 3, ss. 1 and 4-5 | 25% of room capacity | No limit, but must maintain physical distancing |
| June 30, 2021 to July 11, 2021 | WA | O.Reg. 263/20, Sch. 1, s. 2(2) and Sch. 3, ss. 1 and 4-5 |
15% of room capacity | 10 people |
| July 12, 2021 to July 15, 2021 | WA | O.Reg. 263/20, Sch. 3, ss. 1 and 4-5 | 25% of room capacity | No limit, but must maintain physical distancing |
[7] While all the challenged regulations have now expired or been repealed, the charges against the appellants remain outstanding pending the outcome of this litigation. The appellants ask that the challenged regulations be declared of no force and effect under s. 52(1) of the Constitution Act, 1982 and that the resulting orders against them be set aside.
[8] The motion judge found the challenged regulations infringed the appellants’ right to freedom of religion under s. 2(a) of the Charter but were justified as a reasonable limit on that right in a free and democratic society. She declined to determine whether the regulations also infringed ss. 2(b)-(d) of the Charter as she found those protected interests were subsumed by s. 2(a) in this case.
[9] The motion judge’s finding that s. 2(a) was infringed is not challenged on appeal. The appellants challenge the motion judge’s treatment of the expert evidence, her decision not to rely on “hindsight” evidence in evaluating the regulations, her decision not to consider the other alleged Charter breaches, and her conclusion that the regulations were justified under s. 1. The intervener, Association for Reformed Political Action (“ARPA”), which also intervened in the hearing below, makes submissions on the third and fourth issues.
[10] For the reasons that follow, I would dismiss the appeal.
DECISION BELOW
[11] The motion judge made several preliminary observations, noting that her role was not to resolve scientific debates between experts but to determine whether there was scientific support for the precautionary measures taken, as assessed at the time of the challenged action rather than with hindsight. Nor was she undertaking a comprehensive inquiry into Ontario’s response to the pandemic. She then reviewed the general chronology of COVID-19 restrictions in Ontario, the impact of the restrictions on the claimants, and the expert evidence regarding the threat posed by COVID-19 before analyzing the Charter breaches.
(1) The challenged regulations infringed s. 2(a) of the Charter
[12] The motion judge found that the numerical or percentage capacity limits imposed on religious gatherings, either indoors or outdoors, infringed s. 2(a). The existence of alternate methods for delivering religious services did not attenuate the infringement at this stage, given the religious significance of the collective in-person experience to the appellants.
[13] After reviewing the case law, the motion judge articulated the standard for finding a breach of s. 2(a) as a contextual one, which asks whether the limit on the exercise of s. 2(a) rights leaves the adherent with a “meaningful choice” to follow their religious beliefs and practices.
[14] Ontario relied heavily on Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567, for the proposition that religious gathering limits of more than 10 people did not deprive claimants of a meaningful choice to follow or not follow the edicts of their religion, since (for example) a church could hold multiple small services to accommodate all parishioners. The time and expense involved would be a cost or inconvenience, but not a breach.
[15] The motion judge distinguished Hutterian Brethren because there, the cost imposed by the law was of a secular nature: foregoing a driver’s license and requiring alternate forms of transport. In this case, holding multiple services would alter the character of the religious experience itself by interfering with the communal worship of congregants. Unlike in Hutterian Brethren, adherents could not simply choose religious practice over a conflicting secular option. In her view, this was more akin to Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 S.C.R. 613, in that religious freedom “will be infringed when laws or ministerial decisions affect the ability of a religious institution to engage in the very activity that animates and defines its religious character.”
[16] The motion judge was satisfied that the evidence led established the importance of congregants gathering together as one. Multiple services would not offer an equivalent means of religious expression.
[17] While Ontario conceded that limiting religious gatherings to 10 people or less infringed s. 2(a), the motion judge held that it is difficult to draw distinctions with percentage-based capacity limits, and the s. 2(a) analysis should not hinge on numerical considerations. The court should not “micro-measure” the religious significance of the exact number of attendees. The manner and practice of worship is at the core of religious freedom, and the authority to determine such matters lay with the claimants. Therefore, all the challenged regulations infringed s. 2(a).
(2) The motion judge did not conduct a separate analysis under ss. 2(b)-(d) of the Charter
[18] The motion judge found it was not necessary nor desirable to conduct separate analyses of the other fundamental freedoms, as the interests protected by those subsections were “wholly subsumed” by the s. 2(a) analysis in this case. The finding of an infringement accounted for the various manifestations of religious freedom: to engage in religious expression, to assemble in religious unity, and to associate with those who share faith-based ideals. As in Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, [2018] 2 S.C.R. 293, the factual matrix underpinning the various Charter claims was largely indistinguishable. The gravity of the infringement should not be inflated by an artificial tally of provisions.
(3) The Charter infringement was justified under s. 1 of the Charter
[19] The motion judge found the measures were justified under s. 1. The justificatory framework set out in Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395, did not apply because the restrictions were enacted by statute and regulation, and were therefore subject to the justification test in R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103.
[20] The motion judge observed that the s. 1 analysis is contextual, and this context informs the level of judicial deference to government decision-making. Less deference is owed where the state is the singular antagonist of the individual compared to cases dealing with complex social problems, balancing the interests of competing groups, or seeking to protect a vulnerable segment of the population. In her view, this case called for even greater deference than Hutterian Brethren as public officials were faced with an unprecedented public health emergency and were required to balance competing considerations including evolving medical and scientific opinion. The mix of conflicting interests and perspectives, centered on a tangible threat to public health, was a textbook recipe for deferential review.
(a) Pressing and substantial objective
[21] The objective of reducing COVID-19 transmission, hospitalization, and death, while mitigating threats to the integrity of the healthcare system, was itself pressing and substantial. However, the parties disagreed on whether this objective was legitimately connected to the outdoor gathering restrictions. The motion judge reasoned that this issue was most relevant to the minimal impairment stage of the Oakes analysis.
(b) Rational connection
[22] Ontario met its burden of showing a rational connection between restricting person-to-person contact and reducing the risk of COVID-19 transmission, particularly given the characteristics of religious services. The motion judge found that Ontario was not required to prove, with direct scientific evidence, that capacity restrictions actually reduced the spread of COVID-19.
(c) Minimal impairment
[23] At the minimal impairment stage, the operative question was whether the measures chosen fell within a range of reasonable alternatives, or whether there was an alternative, less drastic means of achieving the objective in a real and substantial manner. Ontario was not required to choose the least ambitious means of protecting the public from the pandemic, nor were the restrictions overbroad simply because there were other alternatives.
[24] The standard is not one of scientific certainty, particularly for a social problem that defies scientific consensus. The motion judge found that this case engaged the precautionary principle: where there are threats of serious, irreversible damage, lack of full scientific certainty is not a reason to postpone harm reduction strategies. The threat of harm posed by the pandemic required Ontario to act on the best scientific information available at each variable point in time. A precautionary stance was favoured over a “wait and see” approach, lest lives be lost in the interim.
[25] While all the experts agreed that the risk of transmission outdoors was lower than indoors, there was nevertheless evidence on which to conclude there remained a risk outdoors, particularly if other precautions were not respected and high-risk activities were taking place. The motion judge further accepted that at the time the outdoor restrictions were imposed, even lower risk activities could increase pressure on a health care system that was close to a breaking point. She concluded, “At times when community risk was elevated, the health care system was sufficiently fragile that even a small number of infections could have dire consequences.”
[26] While less stringent measures were imposed for the retail sector, the motion judge found that retail settings were distinguishable not only based on more transient attendance by customers, but because employers have a statutory duty to protect their employees, and customers do not generally gather to sing and speak together for an hour or more at a time.
[27] Religious gathering limits were also carefully tailored throughout the pandemic to reflect evolving circumstances, new scientific evidence, and changing levels of risk. Ontario never completely banned religious gatherings. The 10-person limit was intended to facilitate virtual or drive-in services, geographically limited to regions where the virus was most acute, and time limited only for so long as it was warranted by prevailing risk factors. The tightest restrictions corresponded to when the public health care system was pushed to capacity and pandemic dangers were at their highest.
[28] While there may have been other ways to address the ongoing threat of the pandemic, the motion judge had “no difficulty finding that Ontario’s choices fell well within the range of reasonable alternatives.” The decisions made by public officials were supported by sound medical opinion, it was imperative to take meaningful and timely steps to protect the public from a deadly and unpredictable virus, and the measures were an “eminently reasonable” means of achieving public protection during the throes of a deadly pandemic.
(d) Salutary and deleterious effects
[29] At the final proportionality step, the government objectives at issue were among the most compelling imaginable: the protection of human life in the face of an unprecedented and unpredictable virus, carrying a threat of devastating health consequences. The case also implicated the interests of the many Ontarians who wished the government to keep them safe during a public health emergency, protecting their rights to life and security of the person. COVID-19 has a communal character where individual choice can have community consequences.
[30] There was good reason to believe that the measures had their intended effect of reducing transmission rates. While the correlation between infection rates and gathering limits was not necessarily causation, it was impossible to draw a direct causal link. The motion judge therefore deferred to the opinion of Dr. David McKeown, former Associate Chief Medical Officer of Health for Ontario, that they did have a salutary effect on infection rates. It was logical to find that restricting the circumstances that breed infection would reduce its incidence. The salutary benefit flowed from the prospect of saving lives and preventing serious illness, even if we cannot precisely quantify how many lives were saved.
[31] The motion judge reiterated that the gathering restrictions interfered with the ability of the claimants to engage in religious activity as a collective in-person congregation, and further accepted that this had negative impacts on the psychological wellbeing of church members. At the same time, she observed that there was never a complete ban on religious gatherings or activity, and that the other means of religious expression (such as virtual and drive-in gatherings) mitigated the deleterious effects. Further, the limits must be understood within the broader context of the pandemic and the burdens experienced by all Ontarians.
[32] The motion judge also noted that the limits were less stringent than limits on other social and public events, and that they conferred a benefit on religious adherents by reducing the risk of infection at religious gatherings, which may have enhanced the ability of some individuals to participate.
[33] In response to the intervener’s arguments, the motion judge accepted the notion of institutional pluralism as an aspiration under the Charter but found it did not change the outcome in this case. Ontario showed respect to religious institutions by tailoring restrictions and easing them when it was possible to do so. Full accommodation of religious freedom, in her view, would not have resulted in “legitimate inconvenience” for government. Rather, she concluded that it would have represented a wholesale abdication of government responsibility to act in the public interest, and it would have meant turning a blind eye to the threat of severe health consequences for a large swath of the population.
[34] The motion judge had “little hesitation” in concluding that, while the numerical and percentage gathering limits infringed s. 2(a) of the Charter, the salutary benefits of these restrictions outweighed the deleterious effects on religious freedom. Ontario met its burden to establish that the challenged regulations were reasonable limits, demonstrably justified in a free and democratic society.
ANALYSIS
[35] The appellants raise the following issues on appeal:
(1) Did the motion judge err in her treatment of the expert evidence?
(2) Did the motion judge err in declining to evaluate the challenged regulations through the lens of hindsight?
(3) Did the motion judge err in declining to conduct separate analyses under ss. 2(b)-(d) of the Charter?
(4) Did the motion judge err in finding the challenged regulations were justified under s. 1 of the Charter?
[36] I discuss each question in turn.
[37] In doing so, I am mindful of the standard of review. While the standard of review governing questions of law, including the interpretation of the Constitution, is correctness (Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 55), the application of those constitutional standards may involve questions of fact or mixed fact and law which attract deference on appeal: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8, 10, 36.
(1) The motion judge did not err in her treatment of the expert evidence
[38] The appellants argue that the motion judge erred by admitting and heavily relying on the opinion evidence of Dr. McKeown, particularly in support of her findings that there was any risk of COVID-19 transmission outdoors and that Ontario’s gathering restrictions reduced infection rates. They submit that he was a fact witness, not a properly qualified expert witness, and for this reason did not complete the Acknowledgement of Expert’s Duty form under r. 53.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 The appellants contend that his opinion evidence was not necessary to assist the trier of fact.
[39] The respondent highlights that the appellants did not object to the admissibility of Dr. McKeown’s evidence in the court below. In fact, they attempted to rely on his evidence to support their s. 1 argument. Therefore, no substantial wrong or miscarriage of justice occurred.
[40] In any event, the respondent asserts that Dr. McKeown was a participant expert who was not required to comply with r. 53.03 and whose evidence was admissible for the truth of its contents, relying on Westerhof v. Gee Estate, 2015 ONCA 206, 124 O.R. (3d) 721, leave to appeal refused, [2015] S.C.C.A. No. 198, at para. 60. He was a witness with “special skill, knowledge, training or experience”; he directly participated in reviewing and assessing information related to COVID-19 as part of his role as Associate Chief Medical Officer of Health; and he formed his opinions as part of the ordinary exercise of his knowledge, training, and experience while advising the Ontario government on its pandemic response.
[41] I agree.
[42] The evidence called into question most directly by the appellants formed part of the motion judge’s s. 1 proportionality analysis, where she stated:
I defer to Dr. McKeown’s medical opinion that restrictions did have a salutary impact on infection rates. It is his opinion that, were it not for the restrictions, many more people would have suffered extreme illness and died. Quite apart from Dr. McKeown’s opinion, there is an inherent lay logic to this proposition. One way to curb infection is to restrict the circumstances that breed infection. That is, in essence, what was done, with varying degrees of restriction depending on the prevailing level of threat.
[43] In my view, the motion judge was entitled to consider Dr. McKeown’s opinion evidence as a participant expert. Furthermore, while the appellants submit they did not object at first instance because they could not know the motion judge would rely on this evidence in the manner she did, the time to object to evidence is when it is put before the judge, not after the judge renders a decision. I see no reason to depart from the general rule that a party cannot appeal based on some aspect of the lower court proceeding such as the admissibility of evidence to which it did not object: see e.g., Hoang (Litigation guardian of) v. Vicentini, [2016] O.J. No. 5140, 2016 ONCA 723, 352 O.A.C. 358, at para. 63; and Parliament (Litigation guardian of) v. Conley, 2021 ONCA 261, 155 O.R. (3d) 161, at paras. 63-66.
[44] In any event, even if this opinion evidence were not considered, the motion judge also provided an alternate basis for accepting the salutary impact of the measures on infection rates.
[45] The appellant also takes issue with the motion judge’s reliance on the evidence of Dr. Matthew Hodge, an emergency physician and certified specialist in public health, as well as her failure to rely on that of Dr. Zain Chagla, an infectious diseases physician and Co-Medical Director of Infection Control at St. Joseph’s Healthcare in Hamilton, and Dr. Richard Schabas, a doctor specializing in public health and internal medicine.
[46] The appellant argues that Dr. Hodge’s testimony that provincial case count numbers accounted for 90% of community cases was clearly false, calling into question his credibility and impartiality, and further points out that he did not in fact advise the government on the religious gathering restrictions.
[47] Dr. Chagla worked on certain provincial COVID-19 guidelines while Dr. Schabas was a former Chief Medical Officer of Health for Ontario. According to the appellant, the motion judge’s decision to give greater weight to the evidence of Dr. Hodge and Dr. McKeown while discounting these other experts was a palpable and overring error.
[48] The respondent submits that there is no reason to interfere with the motion judge’s weighing of the expert evidence. Conflicting evidence is not sufficient to establish a palpable and overriding error. The motion judge was not required to address the specific inconsistency raised by the appellants. In any event, the issue was peripheral and both Dr. Hodge and Dr. Chagla agreed that the number of cases captured by testing was inherently uncertain and that different experts use different data when estimating the proportion of cases that go unreported.
[49] The motion judge referred to the public health evidence at several junctures in her analysis. She explained why she preferred the evidence of Dr. McKeown and Dr. Hodge as follows:
As noted earlier, it is not my role to choose between dueling experts on the science of Covid-19. The question is whether it was reasonable for Ontario to do what it did, on the basis of the evidence available to it at the relevant time. The views expressed by Dr. McKeown and Dr. Hodge best reflect what was known and understood by Ontario when it made its decisions. [Emphasis added.]
[50] The motion judge was entitled to rely on all, part, or none of the expert evidence. Her treatment of the evidence was open to the motion judge on the record before her, and the purpose of appellate review is not to reassess the weight accorded to such evidence.
[51] I would dismiss this ground of appeal.
(2) The motion judge did not err by declining to evaluate the challenged regulations through the lens of hindsight
[52] The motion judge, in describing her framework of analysis, stated generally that she was not reviewing the regulations through the standard of hindsight:
Hindsight is not the Standard: Hindsight is not the lens through which to assess government action in this case. Close to two years into the pandemic, we know more than we did in the past, but historical measures must be understood against the backdrop of historical knowledge. The question is not what we know now; it is what was reasonably known and understood at the time of each impugned action.
[53] The appellants allege the motion judge unduly narrowed her analysis and that this approach insulates laws from scrutiny when new information reveals they have always been unjustified. They point out that when reviewing legislation, courts frequently rely on contemporary knowledge and understanding as well as evidence of the subsequent effects and application of the measures.
[54] The respondent counters that evaluating the challenged regulations based on information that was not available at the time would set an impossibly high standard for governments to justify an infringement. Section 1 should not require governments to predict the future or prevent them from acting on imperfect information. This case can be distinguished from constitutional challenges to legislation that remains in force, where the impugned government action is ongoing.
[55] I do not read the motion judge as conveying a decision on the admissibility of any specific piece of evidence in her preliminary comment about hindsight. Rather, she reiterated that the dispute before her related to the scientific and policy understandings at the time the regulations were enacted. Additionally, she was highlighting the importance of context in the analysis, particularly the absence of scientific certainty regarding COVID-19.
[56] In Beaudoin v. British Columbia (Attorney General), 2022 BCCA 427, the B.C. Court of Appeal considered the constitutionality of similar COVID-19 restrictions on religious gatherings, in that case in the form of orders issued by the Provincial Health Officer. Fitch J.A., writing for a unanimous panel, adopted and amplified the motion judge’s perspective on hindsight evidence in the following terms, at para. 268:
I emphasize that hindsight has no place in this analysis: Trinity Bible Chapel at para. 6(2). Regard must be had to what was known about the potential for the virus to cause widespread death and disable the delivery of essential services, including health care services to British Columbians. The analysis must recognize that, when the orders were made, vaccines were not widely available. The prospect of the exponential growth of COVID-19 cases was very real. Failing to act in a timely and reasonable way to prevent transmission in settings identified as high-risk could lead to the imposition of more extreme measures at a future date to curb the spread of the virus.
[57] While not binding on this court, this endorsement by a coordinate appellate court bolsters the conclusion that this approach was open to the motion judge. While the effects of the regulations on the appellants continue, the regulations themselves were regularly revisited and modified in response to changing circumstances, and ultimately repealed. Evaluating a now-repealed regulation based on what was reasonably known at the time it was enacted is different from reviewing ongoing legislation based on the state of knowledge at the time it is challenged in court.
[58] The appellants also argue that the motion judge failed to adhere to her own caution in her s. 1 proportionality analysis when she relied on Dr. McKeown’s evidence that Ontario’s public health measures, including the challenged regulations, had the effect of decreasing the spread of COVID-19, as follows:
There is good reason to believe that the measures had their intended effect of reducing Covid-19 transmission rates, and attendant illness. At para. 59 of his affidavit, Dr. McKeown testified that:
Many key public health indicators showed signs of significant improvement following the implementation of Ontario’s strictest public health measures. While there are many factors that contribute to the transmission of COVID-19, this data suggests that Ontario’s public health measures decreased the spread of COVID-19 across the province, reduced the overall strain on the healthcare system, and likely saved lives.
[59] I do not accept that this statement reflects hindsight reasoning, in the sense of relying on evidence of impact that post-dates the challenged regulations. Rather, the motion judge accepted evidence from a participant in Ontario public health policy-making that not only were the measures taken by Ontario justified by the evolving scientific data at the time, but also by the evolving track record of impact. In other words, by the time Ontario enacted regulations to counter the risks posed by the second and third waves of COVID-19, it could rely on the beneficial impact of the measures taken to address the earlier waves.
[60] I would dismiss this ground of appeal.
(3) The motion judge did not err by declining to conduct separate analyses under ss. 2(b)-(d) of the Charter
[61] The appellants submit that the motion judge erred by declining to consider and rule separately on the alleged violations of the appellants’ rights to freedom of expression under s. 2(b), freedom of assembly under s. 2(c), and freedom of association under s. 2(d). They make two main arguments. First, they attempt to distinguish Trinity Western, arguing that the parties in that case had almost exclusively framed the dispute as centering on religious freedom whereas here, the appellants made full arguments before the motion judge on the other breaches. They argue that the motion judge erred by finding their s. 2(a) claim “subsumed” the others and should have instead applied the analysis from Ross v. New Brunswick School District No. 15, 1996 CanLII 237 (SCC), [1996] 1 S.C.R. 825, where the Supreme Court considered both the ss. 2(a) and 2(b) claims.
[62] Second, the appellants and the intervener argue that the motion judge’s failure to consider each freedom separately impacted her application of the Oakes test, particularly in the final balancing of deleterious and salutary effects. In their view, assessing the cumulative effect of “compound” rights infringements is necessary to fully identify the impact on Charter rights and what constitutes sufficient justification by government. The appellants cite jurisprudence under s. 24(2) of the Charter to support their position that multiple infringements ought to be considered cumulatively in the s. 1 proportionality analysis.
[63] The respondent argues that the motion judge’s decision was consistent with Trinity Western and the principle that courts should decline to address constitutional issues unless it is necessary to do so. The allegations all related to the “single compendious act” of imposing limits on religious gatherings and the motion judge considered all relevant salutary and deleterious effects in the proportionality analysis. In the alternative, the respondent contends that no ss. 2(b), (c), or (d) breach occurred.
[64] I address each issue in turn.
(a) Can one Charter right “subsume” others?
[65] Before the court in Trinity Western, the claimants alleged breaches of ss. 2(a), 2(b), 2(d), and 15. The majority declined to conduct a separate analysis of the rights beyond the s. 2(a) claim, but added that these limitations would be considered at the proportionality balancing stage, at paras. 77-78:
The factual matrix underpinning a Charter claim in respect of any of these protections is largely indistinguishable. Further, the parties themselves have almost exclusively framed the dispute as centring on religious freedom. In our view, the religious freedom claim is sufficient to account for the expressive, associational, and equality rights of TWU’s community members in the analysis.
Put differently, whether the Charter protections of prospective students of TWU’s proposed law school are articulated in terms of their freedom to engage in the religious practice of studying law in a learning environment that is infused with the community’s religious beliefs, their freedom to express and associate in a community infused with those beliefs, or their protection from discrimination based on the enumerated ground of religion, such limitations were, as we explain next, proportionately balanced against the LSBC’s critical public interest mandate.
[66] While the majority declined to engage in a separate analysis of the other rights because the factual matrix primarily concerned freedom of religion, this does not mean that one right takes precedence over another. As McLachlin C.J., concurring but writing for herself, stated, at para. 122:
I agree with the majority that the LSBC decision limits, or infringes, the s. 2(a) Charter guarantee of freedom of religion. I would add this, however. The majority finds it unnecessary to consider the guarantees of freedom of expression and freedom of association. While it may not be necessary to conduct a separate analysis of these guarantees, the Court must, in my view, include them in the ambit of the guarantee of freedom of religion.
[67] A similar observation applies here. The alleged infringement of the appellants’ s. 2(a) rights accounted for their related rights to express their religious beliefs, assemble for the purpose of engaging in religious activity, and associate with others who share their faith. While the appellants also suggest that certain expressive activities took the form of political protest protected under s. 2(b), those activities were directly related to the government restrictions on religious gatherings. The motion judge noted that her finding that s. 2(a) was infringed accounted for these various manifestations of religious freedom, concluding, “There is no value added by repeating or repackaging the analysis under different constitutional headings.”
[68] This approach finds support in the jurisprudence beyond Trinity Western. The respondent points to Figueiras v. Toronto Police Services Board, 2015 ONCA 208, 124 O.R. (3d) 641, where the appellant alleged multiple Charter breaches arising from policing actions undertaken during the G20 Summit in Toronto. The court found a breach of s. 2(b) but concluded, at para. 78, that there was no need to address the s. 2(c) argument because the claimant’s freedom of assembly issues were “subsumed by the s. 2(b) analysis”, as was the case in British Columbia Teachers’ Federation v. British Columbia Public School Employers’ Assn., 2009 BCCA 39, 89 B.C.L.R. (4th) 96, leave to appeal refused, [2009] S.C.C.A. No. 160, [2009] S.C.C.A. No. 161.
[69] To take another example, in R. v. Khawaja, 2012 SCC 69, [2012] 3 S.C.R. 555, the appellant was convicted of five offences under the terrorism provisions of the Criminal Code, R.S.C. 1985, c. C-46, which required the relevant act or omission to be committed “in whole or in part for a political, religious or ideological purpose, objective or cause.” The appellant argued this provision violated his rights under ss. 2(a), (b), and (d). The Supreme Court expressly agreed with this court’s decision below to only address the claim under s. 2(b) because it was the broadest of the Charter infringement claims: at para. 66.
[70] Finally, this case is not like Ross or any of the other authorities relied on by the appellants. First, none of those cases stand for the proposition that every alleged Charter infringement must always be considered. Rather, it is an inference the appellants ask this court to draw from the separate analysis undertaken by the court for each Charter claim. Second, the cases are all distinguishable on their facts. In each, the same law or state action had different dimensions beyond or distinct from the impacts on religion, engaging other freedoms such as expression, as in Ross, Saskatchewan v. Durocher, 2020 SKQB 224, 453 D.L.R. (4th) 650, and Right to Life Association of Toronto v. Canada (Employment, Workforce and Labour), 2021 FC 1125, aff’d on other grounds, 2022 FCA 220; or freedom of association, as in Canadian Union of Postal Workers v. Her Majesty in Right of Canada, 2016 ONSC 418, 130 O.R. (3d) 175.
[71] Therefore, where an examination of the factual matrix reveals that one claimed s. 2 right subsumes others, it is not necessary to consider the other s. 2 claims (though, of course, there is no bar to a judge doing so). I should add that this approach is particularly apposite in the s. 2 context where the rights are related fundamental freedoms, whereas it may have less application across rights (for example, as between ss. 2, 7, and 15 rights).
[72] As a final point on the question of infringement, the appellants submit that while the challenged regulations infringe the right to religious freedom in effect, they infringe the right to peaceful assembly in purpose. They suggest this should be given more weight in the proportionality analysis, relying on R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295. However, if the appellants are correct, then the same logic could apply to the s. 2(a) infringement because the regulations specifically restrict religious gatherings. As the respondent points out, the appellants did not challenge any of the restrictions that applied to non-religious gatherings, such as for social gatherings or other public events. Thus, I think the distinction the appellants attempt to draw is one without a difference, at least on the facts of this case.
(b) Are multiple breaches considered cumulatively under the Oakes analysis?
[73] I do not agree with the appellants and the intervener that the Oakes test changes where there are multiple breaches of the Charter. The appellants cite no judicial authority to support their theory that the s. 1 proportionality analysis must consider Charter breaches in a cumulative way. However, even if the motion judge expressly had found infringements of ss. 2(b)-(d) in this case, I am not persuaded that this would have led to a different result, as those same protected interests were considered at the proportionality stage.
[74] The Oakes test is well-settled. The third step of the proportionality exercise directs that “there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of ‘sufficient importance’”: Oakes, at p. 139 (emphasis in original). Dickson C.J. further explained that not all infringements are as serious as others “in terms of right or freedom violated, the extent of the violation, and the degree to which the measures which impose the limit trench upon the integral principles of a free and democratic society”: at pp. 139-40. It is this global assessment of the deleterious effects of a measure that is weighed against its importance. Thus, courts are directed to assess the extent, degree, and severity of the effects, but this does not mean multiple infringements necessarily enhance the weight of the harms. As the intervener acknowledged, “The cumulative effect of compound Charter violations is not an arithmetic exercise, but a qualitative one.”
[75] On this point, there is little if any functional difference between the contextual proportionality exercises in Oakes and Doré. The Supreme Court has held that the Doré framework “finds analytical harmony with the final stages of the Oakes framework used to assess the reasonableness of a limit on a Charter right under s. 1: minimal impairment and balancing”: Loyola, at para. 40. See also Trinity Western, at para. 82.
[76] Despite both analytical frameworks providing a wealth of jurisprudence, neither line of cases provides precedent for the proposition that proportionality must add up Charter breaches in a cumulative way. Instead, Trinity Western, the case most on point, follows the well-known balancing stage of the proportionality analysis. To paraphrase the majority at para. 78, no matter which s. 2 right is used to label the interference, all deleterious effects will be considered in the proportionality analysis.
[77] There is no reason to distinguish Trinity Western as falling under Doré and not Oakes – nor did the appellant make that argument. The motion judge properly looked to Trinity Western on this point.
[78] Several recent articles in the Supreme Court Law Review are critical of Trinity Western, arguing it should not be broadly applied or should be limited to its facts: Dwight Newman, “Interpreting Freedom of Thought in the Canadian Charter of Rights and Freedoms” (2019) 91 S.C.L.R. (2nd) 107; or that the court missed a critical opportunity to recognize compound infringements and how they may aggravate the breach: Jamie Cameron, “Big M’s Forgotten Legacy of Freedom” (2020) 98 S.C.L.R. (2nd) 15; or that each right should have been dealt with as a distinct right and considered on its own to determine whether the infringements were justified: André Schutten, “Recovering Community: Addressing Judicial Blindspots on Freedom of Association” (2020) 98 S.C.L.R. (2nd) 399.
[79] This academic commentary was considered by the B.C. Court of Appeal in Beaudoin as support for the proposition that compound Charter breaches should be weighed cumulatively in the s. 1 analysis. The court rejected this submission and followed the majority in Trinity Western. It also found the argument that a cumulative breach analysis must inform the s. 1 inquiry in every case was foreclosed by governing jurisprudence, including Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, and Devine v. Quebec (Attorney General), 1988 CanLII 20 (SCC), [1988] 2 S.C.R. 790.
[80] I agree. Although no case (prior to Beaudoin) specifically rejects this proposition, it goes against the tide of jurisprudence that has declined to determine every alleged Charter breach, such as Carter, Khawaja, and Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101. None of the cases relied on by the appellants hold otherwise.
[81] I would add that in Ross, the Supreme Court did not conduct a separate s. 1 analysis for the ss. 2(a) and 2(b) infringements, but only one s. 1 analysis for both. At the final balancing stage, the court considered the deleterious effects “upon the respondent’s freedom of expression and freedom of religion” and concluded they were “limited to the extent necessary to the attainment of the purpose”: at para. 108.
[82] The only proffered authority for considering the cumulative effects of multiple Charter breaches comes from the s. 24(2) jurisprudence, namely R. v. Poirier, 2016 ONCA 582, 131 O.R. (3d) 433. The motion judge distinguished this case, and the applicability of s. 24(2) cases in general, on the basis that each breach stemmed from a separate act. That is true of Poirier. I would add a more fundamental difference is that the test to exclude evidence obtained in a manner that infringes the Charter, as set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, is different than the proportionality analysis in Oakes.
[83] Section 24(2) has developed its own body of case law, distinct from remedies under s. 24(1) of the Charter and s. 52(1) of the Constitution Act, 1982. Analytically, the burden of proof rests on the person seeking to exclude evidence, rather than the Crown: R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at p. 280. Furthermore, the focus of s. 24(2) is solely on the administration of justice, not what is reasonable and demonstrably justified in a free and democratic society. I am not aware of any cases borrowing concepts from the s. 24(2) jurisprudence to inform the s. 1 analysis. Also, the B.C. Court of Appeal rejected a similar argument in Beaudoin, at paras. 236-38.
[84] That said, in my view it is neither necessary nor justified for purposes of resolving this appeal to exclude the possibility that the effects of multiple Charter infringements could have a bearing on the Oakes analysis in future cases.
(c) Conclusion on cumulative breaches
[85] For these reasons, I conclude the motion judge did not err in relying on Trinity Western for the proposition that, having found the challenged regulations infringed the appellants’ Charter right to freedom of religion, she did not need to separately consider the alleged infringements of ss. 2(b), (c), and (d).
[86] Given this conclusion, I do not need to address the respondent’s alternative argument that no breach of ss. 2(b), (c) or (d) occurred.
[87] I would dismiss this ground of appeal.
(4) The motion judge did not err in finding the challenged regulations were justified under s. 1 of the Charter
[88] As noted above, the motion judge’s finding that s. 2(a) of the Charter was infringed is not challenged on appeal. Rather, the appellants take issue with her decision that this breach was justified under s. 1. The appellants contend that throughout her Oakes analysis, the motion judge was “excessively deferential” to Ontario, and that she erred at each step of the test.
[89] I will deal with each aspect of the Oakes test below.
(a) Pressing and substantial objective
[90] The motion judge accepted that the objective of the religious gathering restrictions was to reduce COVID-19 transmission, hospitalization, and death, and to mitigate threats to the integrity of the health care system. She noted that while the challenged regulations limit religious gatherings, these limits must be understood as operating within a comprehensive regulatory framework.
[91] The appellants argue that the motion judge adopted an overbroad purpose of the measures, which they submit were more narrowly intended to reduce COVID-19 transmission at gatherings, or in the alternative, that this objective was not pressing and substantial in relation to outdoor religious gatherings given the lack of evidence of outdoor transmission risk.
[92] I see no error in the motion judge’s identification of the objective, nor in her conclusion that it met the pressing and substantial threshold. Nor do I think the s. 1 analysis would substantially change if the appellants’ formulation of the objective were adopted.
[93] The motion judge also addressed the appellants’ argument that Ontario’s objective was not legitimately connected to outdoor gatherings, observing that this was more relevant to rational connection and particularly minimal impairment, where she chose to address it. It was open to the motion judge to address this issue at either or both of those stages of the Oakes analysis.
(b) Rational connection
[94] The motion judge properly instructed herself on the test for whether a challenged law is rationally connected to its objective. She recognized that the government “must show a causal connection between the infringement and the benefit sought on the basis of reason or logic” and that it is reasonable to suppose the limit may further the objective in question: RJR-MacDonald Inc. v. Canada (Attorney General), 1995 CanLII 64 (SCC), [1995] 3 S.C.R. 199, at para. 153; Hutterian Brethren, at para. 48.
[95] The motion judge found that because COVID-19 is transmitted from person to person, restricting such contact logically reduces the risk of transmission, particularly in congregate settings such as religious gatherings.
[96] In my view, it was open to the motion judge to accept the evidence in the record that outdoor gatherings, while reducing the risk of transmission, did not eliminate it, and that any increased risk of transmission could have consequences for the health care system more broadly. While certain experts disagreed with this assessment, merely pointing to some conflicting expert evidence is not sufficient to establish a palpable and overriding error. I agree with the motion judge that Ontario was not required to scientifically prove that the challenged regulations in fact reduced the spread of COVID-19.
(c) Minimal impairment
[97] At this stage of the Oakes analysis, in areas of complex social and public health policy making, the debate regarding the appropriate degree of deference owed by courts to government takes center stage.
[98] In Hutterian Brethren, McLachlin C.J. described the minimal impairment stage of the Oakes analysis as follows, at para. 53:
The question at this stage of the s. 1 proportionality analysis is whether the limit on the right is reasonably tailored to the pressing and substantial goal put forward to justify the limit. Another way of putting this question is to ask whether there are less harmful means of achieving the legislative goal. In making this assessment, the courts accord the legislature a measure of deference, particularly on complex social issues where the legislature may be better positioned than the courts to choose among a range of alternatives.
[99] The motion judge observed that, “Deference is particularly animated at this stage of the analysis.” However, she went further, stating, “This case calls for even greater deference to government decision making [than Hutterian Brethren]. Public officials were faced with an unprecedented public health emergency that foretold of serious illness and death” (emphasis added). The question on appeal is whether the motion judge was excessively deferential to Ontario.
[100] The appellants argue that the analogy to Hutterian Brethren is misplaced and that the challenged regulations are more akin to criminal sanctions which should attract stricter scrutiny at the minimal impairment stage.
[101] I disagree. There are important distinctions between Hutterian Brethren, where a statute of general application (involving the requirement to have photos on driver’s licenses) adversely affected a particular religious group, and here, where regulations targeted religious gatherings specifically. That said, a similar approach applies in the Oakes analysis.
[102] The motion judge did not err in identifying that deference under the minimal impairment stage of the Oakes analysis is contextual. I would add that deference is not a free-floating concept that moves up and down a spectrum. Nor is it a blank cheque whenever governments are faced with a challenging policy issue. Rather, it takes its meaning from the context of the challenged law or state action. In this case, the COVID-19 pandemic required Ontario to act on an urgent basis, without scientific certainty, on a broad range of public health fronts. That context not only informs the degree of deference owed to government as the crisis shifted on the ground in real time, but also the heightened importance of vigilance by all branches of government over fundamental rights and freedoms during such times of crisis.
[103] This context also represents the point of departure for the motion judge’s treatment of the precautionary principle and comparisons between the treatment of religious gatherings and other congregate settings. The appellants argue that the motion judge erred in her minimal impairment analysis by adopting the precautionary principle and rejecting the comparison between Ontario’s restrictions on religious gatherings and the retail sector.
[104] I address each aspect of the motion judge’s decision in turn.
(i) The motion judge did not err in her treatment of the precautionary principle
[105] The motion judge framed the question of whether the challenged regulations were minimally impairing against the evolving understanding of COVID-19 transmission when the various regulations were enacted:
Moreover, Ontario is not required to justify its choices on a standard of scientific certainty. That would set an impossible burden, particularly where, as here, the social problem defies scientific consensus. “The bar of constitutionality must not be set so high that responsible, creative solutions to difficult problems would be threatened”: see Hutterian, at para. 37. I agree with Burrage J. in [Taylor v. Newfoundland and Labrador, 2020 NLSC 125], at para. 411 that: “given the emergent and rapidly evolving developments, the time for analyzing evidence shrinks, all the more so when the margin for error relates to serious illness and/or death.”
It is here that the precautionary principle is engaged. Conceived in connection with climate change, this principle is a key factor in matters of public health. It recognizes that, where there are threats of serious, irreversible damage, lack of full scientific certainty is not a reason to postpone harm reduction strategies. To wait for certainty is to wait too long. Clearly, Ontario was not required to wait for scientific unanimity on the properties of the pandemic before taking steps to prevent illness and death. We would still be waiting for that chimeric marker were it the catalyst for action.
[106] The appellants submit the motion judge erred in considering the precautionary principle in two ways. First, she confused medical debates on the precautionary principle and scientific certainty with the governing legal test, which is demonstrable justification on a balance of probabilities. The Charter analysis requires potential health risks to be balanced against values like freedom of religion and expression. The government ought to err on the side of protecting fundamental freedoms, not the inverse.
[107] Second, according to the appellants, the motion judge effectively gave Ontario deference which ought to be reserved for experts exercising administrative functions. The challenged regulations are the decisions of government, not public health officials. They point out that because Cabinet discussions are privileged, there is no evidence as to what expert medical opinion the government in fact relied on when implementing the restrictions.
[108] The appellants are right to emphasize that the government cannot escape accountability for its decisions just because they were made during a public health crisis. They are also right to highlight that deference to public health experts during such a crisis does not lead to a different constitutional standard of scrutiny of regulations enacted by government.
[109] I do not accept, however, that the motion judge erred in the manner suggested by the appellants.
[110] In my view, it was appropriate for the motion judge to consider the precautionary principle as informing whether and how the state could meet its objectives of reducing transmission risk and saving lives in a situation of scientific uncertainty. This accords with the contextual approach to the Oakes test generally. As stated in Harper v. Canada (Attorney General), 2004 SCC 33, [2004] 1 S.C.R. 827, at para. 77, “Where the court is faced with inconclusive or competing social science evidence relating the harm to the legislature’s measures, the court may rely on a reasoned apprehension of that harm.” See also Thomson Newspapers Co. v. Canada (Attorney General), 1998 CanLII 829 (SCC), [1998] 1 S.C.R. 877, at para. 115; R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, at para. 85; Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11, [2013] 1 S.C.R. 467, at paras. 132-34.
[111] By the same token, a reasoned or reasonable apprehension of harm does not mean governments can justify infringing Charter rights based on apprehension alone. The minimal impairment analysis still requires an evidentiary basis to show why a measure is a reasonable means of achieving a pressing and substantial objective. While not a constitutional standard in itself, the precautionary principle helps inform what it means to rely on a reasoned apprehension of harm where scientific certainty is not possible.
[112] This court considered the role of the precautionary principle in R. v. Michaud, 2015 ONCA 585, 127 O.R. (3d) 81, leave to appeal refused, [2015] S.C.C.A. No. 450. The court found that legislation requiring a commercial truck driver to equip his truck with a speed limiter infringed his right to security of the person under s. 7 of the Charter. In concluding the limitation was justified under s. 1, the court suggested that the precautionary principle as developed in environmental law, and recognized by the Supreme Court in that context, is well-suited to regulatory situations where human life or safety is at stake, and where there is scientific uncertainty as to the precise nature or magnitude of the possible risks: see paras. 100-03, 126-28. It is also important to note that, in Michaud, it was the combination of ex ante (precautionary) and ex post (deterrent) measures that was found to justify the regulatory approach chosen to achieve the objective of highway safety.
[113] This observation is equally if not more apposite when considering the complex regulatory scheme of Ontario’s COVID-19 response. In Grandel v. Saskatchewan, 2022 SKKB 209, the Saskatchewan Court of King’s Bench found the precautionary principle was “essential” in the s. 1 context when reviewing the government’s response to COVID-19 where “some cause and effect relationships are not fully established scientifically”: at para. 84.
[114] The motion judge invoked the precautionary principle in a similar fashion here to explain why it was reasonable for Ontario to act in the manner it did, in the absence of scientific certainty.
[115] In my view, this application of the precautionary principle was consistent with the jurisprudence and did not introduce an excessively deferential standard into the s. 1 analysis.
(ii) The motion judge did not err in rejecting the analogy between religious gatherings and the retail sector
[116] The appellants further submit that the challenged regulations were not minimally impairing given the less restrictive rules for retail stores. They point to Dr. Chagla’s testimony that retail workers faced all the risks the motion judge found that churchgoers faced. According to the appellants, churches were bound by regulatory public health orders to take steps to protect their parishioners, like the statutory duties of employers to protect the health and safety of workers, so the motion judge’s finding that this was not a “comparison of comparables” was a palpable and overriding error.
[117] The intervener expands on this view, arguing that the measures chosen by Ontario cannot be minimally impairing if they ban or significantly infringe on constitutionally protected activity while imposing less onerous restrictions on non-protected activity that represents a similar level of COVID-19 transmission risk. When it comes to reducing the risk of virus transmission, some level of risk must be tolerated in a free and democratic society.
[118] In my view, it was open to the motion judge to reject the analogy between retail settings and religious gatherings based on the public health rationale she cited. However, even if this differential treatment could not be justified purely on public health grounds, that would not determine whether the challenged regulations were sufficiently tailored to be minimally impairing. In other words, Ontario was entitled to balance the objective of reducing the risk of COVID-19 transmission in congregate settings with other objectives that did not arise in the context of regulating religious gatherings, such as preserving economic activity and preserving other social benefits which that activity made possible.
[119] More significant to this analysis, in my view, is that the challenged regulations included indicia of careful tailoring. The government limited but did not outright ban religious gatherings. Less restrictive measures were generally imposed for religious gatherings than for public events and social gatherings. Ontario ensured the restrictions were time-limited and regularly revisited. Alternatives such as virtual or drive-in gatherings were available to permit at least some aspects of religious gatherings during the period of the restrictions.
(iii) Conclusions on minimal impairment
[120] For the reasons set out above, I see no error in the motion judge’s conclusion that the challenged regulations fell within a range of reasonable alternatives to address the ongoing threat of the pandemic.
[121] This conclusion is again bolstered by the findings of other courts across Canada which have considered similar restrictions at this stage of the Oakes analysis.
[122] For example, in Taylor, the Newfoundland and Labrador Supreme Court found that provincial COVID-19 travel restrictions infringed the applicant’s mobility rights under s. 6 of the Charter but were justified under s. 1, holding, at para. 486:
Based on the foregoing evidence I am satisfied that an enemy as resilient as COVID-19 will not be kept in check through the approach advocated by the Applicants. The task of wrestling this disease into submission is no easy feat and is one that requires a dynamic and multipronged approach. The travel restriction is integral to that approach. I am thus satisfied that the least drastic means component of the Oakes test has been satisfied.
[123] In Gateway Bible Baptist Church et al. v. Manitoba et al., 2021 MBQB 219, 497 C.R.R. (2d) 164, appeal heard and reserved December 13, 2022, the Manitoba Court of Queen’s Bench found that certain provincial gathering restrictions infringed ss. 2(a)-(c) of the Charter, but were reasonable limits under s. 1, holding, at para. 316:
Whether through an approach best described as multi-faceted focussed protection or otherwise, I find that in examining the exponential growth in COVID-19, the uncontrolled community spread and rise in deaths and serious illness, not to mention the impending crisis facing the healthcare system, Dr. Roussin [the Chief Public Health Officer] reasonably concluded that a quick and clear response was required. The difficult balancing that Dr. Roussin was required to perform left him to make a decision and tailor measures which I have determined fell within a range of reasonable alternatives. I am far from convinced that in the context in which Dr. Roussin was operating, there was any basis to conclude that “a significantly less intrusive” measure or measures would have been “equally effective” in flattening the curve. The reality of Dr. Roussin’s task in carrying out his duty as CPHO, is well reflected in the following excerpt from Public Health Law and Policy in Canada:
Clearly, in responding to novel public health threats, authorities will often lack scientific facts and must make judgement calls about restricting individual liberties for the sake of protecting the population as a whole. As [Dickson C.J.C.] observed in Oakes: “It may become necessary to limit rights and freedoms in circumstances where their exercise would be inimical to the realization of collective goals of fundamental importance”.
[124] Finally, in Beaudoin, the B.C. Court of Appeal only conducted an Oakes analysis in the alternative, but also found the challenged orders in that case to be minimally impairing: at paras. 301-2. Earlier, as part of its standard of review analysis, the court expressly relied on and endorsed the approach to deference taken by the motion judge in this case, at paras. 151-52:
The need for judicial deference, rooted in the expertise of public health officials, has been echoed in subsequent cases. In Trinity Bible Chapel, which also attracted an Oakes analysis for reasons I will address later, Pomerance J. determined that the situation called not for a “blind or absolute deference” from the courts, “but a thoughtful deference that recognizes the complexity of the problem presented to public officials, and the challenges associated with crafting a solution”: at para. 6(5). I agree.
As in the case at bar, Pomerance J. noted that public health officials in Ontario were faced with an unprecedented public health emergency that would inevitably result in serious illness and the loss of life. Restrictive measures would necessarily impact on social, commercial, and religious activities. The task called for a careful balancing of competing considerations, informed by an evolving body of medical evidence and scientific opinion. She found it difficult to imagine a more compelling and challenging equation. The need to balance conflicting interests and perspectives, centred on a tangible and, in modern times, unprecedented threat to public safety was held to be a textbook recipe for deferential review: at paras. 126–128; see also Taylor v. Newfoundland and Labrador, 2020 NLSC 125 at paras. 456–459 [Taylor]. Again, I agree.
[125] I see no grounds for taking a different approach. The motion judge’s findings reflect a careful assessment, rooted in the evidence, that the challenged regulations were a tailored and balanced response to an urgent public health crisis.
(d) Salutary and deleterious effects
[126] The motion judge properly instructed herself on the balancing exercise at this final stage of the Oakes analysis, which “allows for a broader assessment of whether the benefits of the challenged law are worth the cost of the rights limitations”: Hutterian Brethren, at para. 77. She added, also relying on Hutterian Brethren, that while the perspective of a religious claimant is important, it must be considered in the context of a multi-cultural, multi-religious society where the public interest as expressed through state action may conflict with individual beliefs.
[127] When articulating the benefits of the challenged regulations, the motion judge stated that:
It is not hyperbole to describe this as a crisis of the highest order, requiring early and effective intervention by public officials. Ontario was entitled to impose restrictions in the interests of public health, and the public was entitled to have those restrictions imposed. While framed as a contest between Ontario and the moving parties, this case also implicates the interests of the many Ontario residents who wished the government to keep them safe during a public health emergency. The measures protected the constitutional rights of those individuals to life and security of the person. [Emphasis in original.]
[128] The appellants argue that the motion judge considered inappropriate proportionality factors by weighing the deleterious impact of the restrictions against “a manufactured s. 7 Charter right.” They emphasize that contrary to the excerpt above, the general public does not have a Charter right to restrictive public health measures. They also submit that there was no evidentiary basis for other purported salutary benefits such as the individuals who would not have attended religious services absent the challenged regulations.
[129] In my view, the motion judge’s reference to Ontarians’ “constitutional rights” to public health measures was not a reference to a positive s. 7 right, but rather to the potential infringement of the Charter rights of Ontarians had the government taken steps to address the COVID-19 pandemic that aggravated the threat it posed. More broadly, the motion judge considered that the salutary effects of the challenged regulations were not just beneficial to wellbeing, but potentially life saving, both for religious congregants and for other Ontarians. Her rhetorical flourish did not constitute an error.
[130] Turning to the deleterious impacts, the intervener emphasizes that for those whose religious beliefs compel them to assemble in-person for worship and sacraments, the gathering restrictions did not merely change their mode of religious worship, but effectively banned it. The intervener argues that the regulations also undermine institutional pluralism as an organizing principle of the Charter and weaken civil society.
[131] I do not accept this argument.
[132] The motion judge did not downplay the negative effects experienced by the appellants, including the impact on the psychological wellbeing of congregants and their ability to “facilitate dissemination of religious content” and to “engage in religious activity as a collective in-person congregation”. She did, however, consider those effects in the context of the burdens and sacrifices borne by many individuals and communities across Ontario in the interests of public health. Further, she balanced these burdens against the benefits of the regulations, including the evidence that lives were saved by the restrictions imposed by Ontario earlier in the pandemic.
[133] Ultimately, this was a case that engaged the limits of institutional pluralism, balancing the accommodation of religious freedom with achieving Ontario’s objective of reducing the spread of COVID-19. This balance led to policies which satisfied neither goal completely. The motion judge concluded that, “[r]eligious institutions were affected, but no more than was reasonably necessary and for no longer than was reasonably required.” I see no error in the motion judge’s assessment of the deleterious effects and salutary benefits of the challenged regulations, nor in her overall conclusion that the challenged regulations were justified under s. 1 of the Charter.
[134] I would dismiss this ground of appeal.
DISPOSITION
[135] For the reasons set out above, I would dismiss the appeal.
[136] The respondent seeks costs of the appeal, while the appellants submit there should be no costs against them given the public interest nature of the litigation.
[137] Given the importance of the issues in this appeal and the novel aspects of those issues canvassed, I would make no order as to costs.
Released: March 1, 2023 “D.D.”
“L. Sossin J.A.”
“I agree. Doherty J.A.”
“I agree. B. Zarnett J.A.”