The issues between the Church of God Restoration outside of Steinbach and public health officials have raised some interesting issues relating to freedom of religion. How far does it go?
Members of the church and their supporters have said Manitoba’s laws that make the wearing of masks compulsory in public places and require faith-based institutions to confine their gatherings to virtual on line gatherings which they believe violates their Charter Rights to Freedom of Religion as well as their right to mobility, security, and personal liberty.
Recently, University of Manitoba Professor of Law, whose course on aboriginal rights I audited a couple of years ago, had this to say in response:
“These organizations might be correct that Charter rights have been violated, since the threshold for establishing a rights violation is low. Idiosyncratic religious beliefs and practices are charter-protected as long as they are genuine. Yet court challenges to the face-mask and business-closure laws based on charter rights violations are bound to fail.”
She recently published an article in the Winnipeg Free Press and I want to expand a bit on what she said.
It is not enough to say that Charter Rights to Religious Freedom have been violated. That is only the first step in the analysis. That is because the Charter recognized that no Charter Rights are absolute. We live in a pluralistic society so rights always have to be balanced against the rights of others. It is never as simple as the supporters of the Church of God Restoration are making it out to be.
The Canadians Charter specifically provides that a Charter right may be justifiably violated if a restriction imposed by the government is a “reasonable limit” that is “demonstrably justified” in a “free and democratic society.” If a law passes this test even if it does infringe on Charter right like freedom of religion it is nonetheless lawful.
When rights clash a court may be called upon to determine how the conflict should be resolved.
The Province of Manitoba takes the position that its public health orders are justified because they are necessary to protect the public from a serious international health pandemic. The first question judges ask in such a situation is whether or not there is a “pressing and substantial need” for the government to respond to a problem. Charter violations will not be permitted for trivial needs. Is there any doubt that the current problem is both pressing and substantial? Not in my mind, but no doubt, in the minds of the protesters the need has been greatly exaggerated. But they must present evidence of their claims in court if they want to successfully challenge the admitted infringement.
People making claims in court, will learn that they must present evidence. Courts make decisions based on evidence. Making wild claims to the media may work when you are trying to persuade the public, but courts demand evidence. We too should demand evidence. I have not seen any evidence that supports the claim that Covid-19 is not a serious problem. Have you? As a result I think the church and its supporters will lose on this part of their claim. So the second step goes to the province. This is a serious health problem that deserves a serious response. But this does not end the dispute.
The third step in proving the province’s case is that government response must be proportionate to the harm done to the supporters of the church. The supporters of the church have had their Charter rights violated so the government response must be proportionate to the harm suffered. The province can’t wildly overstep in other words. I think most of us would agree that the admitted harm done to the church members is proportionate to the harm they have suffered and proportionate to the seriousness of the harm done to the public. Again evidence would be needed for a court to decide.
Fourthly, the province must establish in court with evidence, that there is a rational connection between the means to achieve a goal and the goal itself? In other words, does the public health order imposed by the Province of Manitoba actually help solve the serious health problem Manitoba faces? If not, and it is just there for show for example, the law would not pass as a valid violation of a Charter right. This is a bit more difficult to prove. The province would have to prove to the court’s satisfaction, again based on evidence, that the measures it imposes are really needed to curb the pandemic and would in fact help to keep the public safe.
There is still a fifth step the province must overcome. The province must prove, again based on evidence, that there is no less intrusive way to achieve its goal of protecting the public. For example, is it possible for church members to meet in a way that maintains social distancing? If the province is able to prove there is no other reasonable and viable way of achieving its goal the public health order in the circumstances it would survive the Charter challenge as a reasonable limit on the member’s religious freedom in a free and democratic society. I admit I have some doubts on this score, but suspect the province could bring sufficient evidence to bear to convince the judge that less intrusive measures would be inadequate.
I think this is a very rational approach. Letting ignorant pundits on the Internet tell us what to do would not be a rational approach.
I want to make one last point that courts will often defer to governments who have to make decisions in pressure packed environments such as an international health pandemic when governments are trying to protect vulnerable groups such as us old guys. Such decisions really should be made by public health experts and related professionals such as economists and others debating freely with the best available data in front of them. It would not be right for a single judge to make such a decision. Nor should it be made by radical protesters who ignore science at the expense of everyone else.