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Manitoba Churches Lose Court Challenge Against COVID-19 Restrictions

October 21, 2021 12:13 PM | The Canadian Press


By Kelly Geraldine Malone, The Canadian Press

Manitoba Law Courts

The Law Courts are shown in Winnipeg on Tuesday, Dec. 15, 2020. (THE CANADIAN PRESS/David Lipnowski)

WINNIPEG — A judge who ruled against seven Manitoba churches that were fighting public health orders says the restrictions were reasonable and necessary to stem the spread of COVID-19.

Chief Justice Glenn Joyal said the orders did not violate charter rights and the chief provincial public health officer can lawfully impose such restrictions.

“The decision to temporarily close places of worship and otherwise limit the size of gatherings, was rational, reasoned and defensible in the circumstances of an undeniable public health crisis,” Joyal wrote in one of two judgments in the case released Thursday.

Joyal said he agreed with government lawyers, who argued it would be untenable if the only way to issue broad public health orders was through legislation.

“It could potentially handcuff and immobilize government’s ability to act in a timely manner,” the judge said.

“That would certainly not be in the public interest.”

Lawyers for the Justice Centre for Constitutional Freedoms, a Calgary-based group representing the churches, argued duringthe hearing in May that Manitoba’s public health rules are unjustified violations of charter-protected freedoms. They said authority given to the health officer was unconstitutional.

Allison Pejovic, a lawyer with the justice centre, said an appeal is being considered.

“We are disappointed in these decisions and in the unwavering deference accorded to public health officials,” Pejovic said in a news release.

A special hearing for the case was held in July, after Joyal said he learned that the president of the justice centre had hired a private investigator to follow him while he was presiding over the case.

John Carpay took a short leave from his position at the justice centre and professional misconduct complaints were filed with law societies in Manitoba and Alberta.

Throughout the pandemic, there have been times when Manitoba’s health orders restricted worship services. A significant surge of infections in the second wave clogged hospitals and prompted all in-person and drive-in services to be banned.

Government lawyers told court it’s within the bounds of the legislature to grant the chief public health officer the authority to impose reasonable rules.

“The impugned (public health orders) were intended as a ‘circuit break’ to flatten the curve and avoid even greater loss of life or serious illness than was already being experienced,” Joyal said.

Dr. Brent Roussin, the chief provincial public health officer, testified that he is bound by using the least restrictive means to stop the spread of the pandemic. The decision about churches was made because, he said, “we were in crisis.”

“Our hospitals were full of COVID-19 patients. Our ICUs were full of COVID-19 patients,” he said.

Lanette Siragusa, the province’s chief nursing officer, told court she supported the orders because hospital staff were exhausted and facing tough decisions about who could get care.

During often heated and confrontational cross-examinations, the health-care leaders were questioned about capacity in hospitals and intensive-care units, as well as the efficacy of certain COVID-19 tests.

Joyal said the case was one of the first in Canada where a church’s constitutional challenge also attacked the science that a government relied on to make its decisions.

But, the judge said, after the restrictions were put in place, COVID-19 numbers began to decline in Manitoba, which was consistent with what the province’s science and modelling predicted.

“Manitobans flattened the curve and avoided a disastrous situation,” said Joyal.

Court also heard from Tobias Tissen, a minister at the Church of God Restoration, which is located south of Steinbach in rural Manitoba. Tissen said he cannot force worshippers attending his church to follow public health orders because it is “God’s jurisdiction.”

Tissen was arrested by RCMP earlier this week on an outstanding warrant for contravening health orders.

Restrictions have been loosened significantly in Manitoba since the spring as cases of COVID-19 dropped and there was less pressure on the health-care system.

Currently, places of worship have to choose between requiring people to be vaccinated or restricting in-person attendance to 33 per cent capacity or 25 people — whichever is more.

Joyal said public health orders achieve an important societal benefit: protecting the health and safety of others.

“I have no difficulty concluding that any of the restrictions on gatherings and in-person faith services that were eventually implemented, were as Manitoba has argued, temporary and necessary.”

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