Over the last several months, and since the decision reported on January 2021 Charity & NFP Law Update, the Ontario Superior Court of Justice has issued at least two restraining orders, followed by findings of contempt of the orders and the imposition of fines against religious organizations and their leaders in Ontario, for continued defiance of the restrictions in Regulation 82/20 under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 (“ROA”), in R v The Church of God (Restoration) Aylmer (“Aylmer”) and AG of Ontario v Trinity Bible Chapel et al (“Trinity”).

In Aylmer, the Ontario Superior Court of Justice released its reasons for sentence on May 14, 2021, imposing fines against the Church of God (Restoration) Aylmer, a pastor and an assistant pastor, for contravening the restrictions in Regulation 82/20 with regard to indoor gatherings for religious services. The first breaches of the restrictions were reported on January 24 and January 31, 2021, when Regulation 82/20 provided that indoor gatherings for the purpose of a religious service were limited to 10 people and required all attendees to wear masks or face coverings. As a result of these breaches, the court issued a restraining order on February 11, 2021 ordering the church and the pastors, as well as their employees, agents, officers, directors and anyone else acting on their behalf, to comply with Regulation 82/20 in respect of gatherings for the purpose of a religious service, rite or ceremony at, inside, or in conjunction with the operations of the Church of God (Restoration) Aylmer. However, the breaches continued after the restraining order and, on April 25, 2021, Pastor Henry Hildebrandt “openly and flagrantly conducted a live-streamed service […] which included in excess of 100 unmasked congregants […] inside the Church’s John Street place of worship”. On April 30, 2021, the court found the respondents in contempt of the restraining order. The church and the pastors continued to hold large indoor services on May 2 and May 9, 2021, in breach of Regulation 82/20. The court found that, at these gatherings, pastor Hildebrandt was “not so much conducting a service of worship as he [was] promoting his role as leader of the resistance to these public health restrictions”.

In Trinity, the Judge found that the senior pastor and the church leadership made their own determination as to the healthcare risks and related concerns of COVID-19 during the province-wide lockdown in effect from December 26, 2020, and concluded that the problem was in long-term care homes and not churches. The church held services on December 26, 2020, and January 3, 2021, with more than 10 persons in attendance. The court issued a restraining order on January 22, 2021, but the church held two indoor services for 225 people with full knowledge of the order on January 24, 2021. In its reasons for sentence released on February 23, 2021, the court found that the senior Pastor Jacob Reaume “encouraged ‘civil disobedience’ and encouraged others to attend the service in breach of the Order.” In the court’s opinion, “this is a case of a public, notorious and intentional breach of a court order” in the context of a public health risk that the Ontario regulation was intended to address.

In Aylmer, the court acknowledged that the respondent church had brought an application challenging the constitutionality of the restrictions under the ROA for infringing on the fundamental freedoms protected in section 2 of the Canadian Charter of Rights and Freedoms. However, it stated that “as long as the law remains in effect, the Court has a right to enforce its terms and any orders made pursuant thereto”. The court made the same statement in Trinity but also noted that the respondent church and its leaders did not take steps that were available and known to them to challenge the legislation under the Charter before the contempt. For that reason, they could not assert that freedom of religion justified their breach of the restraining order.

In both cases, the court ordered the doors of the church to be locked to deter further breaches of the regulations. The court recognized the church building as the centre of community for the congregation but also stated that the restrictions and state of emergency were put in place to protect the health of the community and save lives.