Public Health vs. Religious Freedom


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.


6 thoughts on “Public Health vs. Religious Freedom

  1. lovely. now maybe you could take a step back and approach the matter philosophically, as in, what does it mean that a religion-nation state disagreement is dealt with legally?
    you begin to get at this when you say that public health experts and economists plus data are needed.

    1. Actually I do think this analysis which is based on an old Supreme Court of Canada case, R. V. Oakes though based on law provides a philosophical analysis of how do deal with competing moral claims just like competing legal, constitutional , or (in Canada) charter rights. I actually learned about this from a philosophy professor at the University of Manitoba Arthur Schafer in a public lecture he gave at McNally Robinson Book store in Winnipeg. He titled his lecture “How to do ethics.” It was all based on this case of R. Oakes and the Supreme Court analysis I have very briefly used in this post. If you pay particular attention to the words I have bolded and the order of the questions/issues you have a method of solving many ethical disputes.

      1. i did not articulate myself well, as usual.
        here’s the drift…….
        bourgeois democracy has connections to the greek civitas as well as roman law.
        roman law was essentially roman catholic law. there was a rebellion. protestant christianity which placed singular emphasis on the individual relative to the more collectivist catholics was created. it was now a direct relationship to god, not mediated by ritual. is this how we got to this sense of freedom and rights? the french revolution and american revolution “enshrined” this business of rights and freedom with constitutions?
        in this regard there also developed a sense of privacy. that encompassed both the body and property, at least.
        this was buttressed by capitalism.
        capitalism was also the nail in the gradually developing domination of “nature” coffin by our species. the last 500 years have been nothing but rape and pillage of what we consider “nature”, a “nature” that does not even slightly resemble what “nature” was a few millennia ago. we have utterly degraded whatever that is, the other animal and plant species. simultaneously, and stupidly, we have domesticated all manner of the other animal species and live in close proximity to them, often eating them. so the viruses that our eco/immunological systems have no close relationship to jump from the other animals to us.
        meanwhile within that framework the nation state was evolving. included in this evolution was bureaucracy. that bureaucracy had a legal aspect.
        in that regard a scientific technocracy was built, including a medical scientific technocracy. this implicated bureaucracy as well as law. that technocracy had an intimate relationship to the body, that private, that my body, a body that i wish to “preserve” as long as possible.
        now, in the present kerfuffle the body is at play. i do not want to cover the lower part of my face of that body. i also want to place that body in close proximity with other bodies as well “focus” and “pay attention” to a spirit. it is “my” body.
        the law, which is supposed to guarantee my right to do with that body what i want is placed in a contingent relationship with bourgeois democratic law, the bureaucracy, and the technocracy.
        paradoxically, the very same “religious freedom fighters” focus on a monotheistic spirit which they wish to become the official ideo/theology of the nation state. they are theocrats, as are the other monotheist religions of the book.
        so, freedom, privacy, rights, as long as they are my type. women should not be able to control their bodies from a sexual and reproductive point of view, but they should be able to walk around without masks on their bodies, according to their ideo/theology of their spirit and their reading of capital and the nation state that they think is sanctioned by that spirit.
        overall, we have no clue what we have got ourselves into. the contradictions and complexity are beyond comprehension.
        you certainly are aware of the obsessive-compulsive minutiae of modern law just for one example.
        it is insane.

        sorry for taking up your space, but that general direction is the one i think you should apply your expertise to.

        1. Good Sir:

          Please don’t rush me. Remember I meander. Slowly with many feints along the way I intend to head in the direction you suggest (sort of). Your comment has woken me from a slumber. I am woke.

          In a meandering fashion I intend to go this way (sort of). I actually want to achieve an over-arching philosophy of everything. Sort of what Stephen Hawking was looking for in physics and cosmology I want to find philosophically. By no means a modest goal. In fact insanely ambitious. I am particularly interested in political philosophy. I want to go beyond Left and Right.

          My theory I think will be based on the notion of exploitation. I seek as a goal a world without exploitation. Again an insanely ambitious goal. Liberalism and Marxism must both be over come. We must leap over them.

          There are things I like in social democracy and liberalism. But I choose not to be constrained by either. I want to take the best of both. As well I want to take the best of indigenous philosophy. We desperately need a new attitude to nature. That requires a totally new philosophy that avoids declaring war on nature. That is the road to doom. We must learn from indigenous people around the world (rather than killing them as we did in the past).

          Western societies are fundamentally based on the liberal democratic model that is widely under attack (even in the United States!) We must recognize as facile western commentators and pundits usually fail to recognize, that the west which has brought incredible material progress has been founded on exploitation, brutality, inequality, and injustice. Such a foundation cannot hold a solid structure. The thinkers I think who understand this best are Joseph Conrad (Heart of Darkness) and Pankaj Mishra (The Age of Anger). Conrad recognized “the horror” at the heart of darkness of the west. We all must do that. Then we must start over. Unless we do that our structure will eventually collapse. I suggest we follow our indigenous brothers this time. We can cherry pick some good things from the west i.e. democracy, human rights, social democracy, pluralism, and the rule of law. At least to the extent they are not poisoned by their source. I even have an attraction to ‘western civilization” though I also recognize that this is largely an oxymoron. Put them all together into a big stew and then we will have something good.

          All of this is a monstrously big task. Pleas don’t make it even bigger. No rather make it bigger and better.

          Sorry, but I know nothing about Roman law nor Catholic law, though I recognize the importance of each for English common law, of which I know a bit. Sorry my education was sorely deficient. Please educate me.

          But remember I won’t be rushed. Rushing is a sin. Thanks for your thoughtful comments.

          1. professor:

            my invocation of roman law was simply to ask the question about whether the arrival of protestantism and capitalism signaled the evolution of this rights and freedom business relative to medieval therefore catholic law. particularly as it relates to the onset of the french and the american revolutions in cementing these rights and freedoms with their constitutional legal obsessions.
            i know next to nothing about law.

            if you are suggesting that liberalism and marxism are somehow equal i am mystified because liberalism rules and has ruled for centuries, while marxism has not been “materialized” anywhere. certainly neither the chinese nor russian revolutions were “marxist” except in name only.
            so marxism whatever its de/merits as a critique of liberalism would need to be implemented somewhere before the equation makes sense.
            the marxist issue has resonance though because it is really the only substantial critique of exploitation that is around. capital is the foundation of the exploitation and liberalism is completely embedded in capital. exploitation is also an epiphenomenon unless i misread your intent.
            deeply embedded in the recesses of western thinking there exists no doubt more fundamental matters, such as monotheistic religion, greek philosophy, patriarchy, language, economy/exchange, terrestrium, as opposed to water, as ecological niche; particularly relating to power which would be the fundamentum of exploitation.
            for example, moving from water to land mammalian evolution to primate led our ancestors to the trees and the descent out of the trees had reinforcing impacts of extreme vulnerability, even paranoia. descent from trees led to bipedalism, the narrowing of the female pelvic, which together with the “cancerous” growth of the cerebral cortex, necessitated birth in the condition of extreme and unique infantile dependence. that compounded vulnerability and produced an intense sociality.

            as for poison the question is whether that makes sense given that those “virtues” you admire are one and the same with capital. they are the ideological mystification of same. they precisely function to obfuscate the power question. marx conceptualized certain aspects of this as the fetish of the commodity. this led to the sense of the reification of same.

            as i see it the problem with an indigenous philosophy of nature is that nature is gone, at least at it relates to whatever nature was hundreds of years ago. even that nature was already to some extent transformed from the previous millennia.
            the configuration of tierra firma was most radically altered by the domestication of plants and animals and most crucially the radical subjugation of females.
            i just don’t see how we can get back to the nature of millennia ago.

            onward and upward.
            btw, are you sure your meandering is not just plain old sloth. what you may need is more mennonite “industry.”

          2. I do not equate liberalism and Marxism, I merely say there are some good things to be gleaned from each. Liberalism is certainly tied historically to capital. That is part of Pankaj Mishra’s critique too. Does that exclude all of it as valueless in your view? Liberalism, like Marxism has never been perfectly implemented either. Nowhere is it pristine. Liberals were often blind to exploitation. That is part of the problems with liberalism. Yet I would argue that it has given birth to much that is good though not perfect. E.g. the rights revolution of the 20the century. Male supremacy is certainly part of the exploitation. Nature is certainly no pristine anywhere. That does not detract from its value. We can never get back to nature. Nature is always changing, as it was before the time of homo sapiens too. Nonetheless, I do believe we need a fundamental change in our relationship to nature. I think we can learn a lot from indigenous people here. We have shown how not to do it. They had thousands of years of a better (though not perfect either) relationship to nature. No nature no life. It is the basis of it all. Not the economy nor capital. Those are all derivatives. Accusing me of sloth is a fair charge. I accept it with pride. Don’t give me any “industry” please.

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