COVID-19 Orders Upheld as Constitutional in Light of Religious Freedom Challenge
Nov 2021 Charity & NFP Law Update
Published on November 25, 2021

By Jennifer M. Leddy and Martin U. Wissmath


In Gateway Bible Baptist Church et al v Manitoba et al, released on October 21, 2021, the Manitoba Court of Queen’s Bench has upheld various public health orders implemented by the government of Manitoba in response to the COVID-19 pandemic as constitutional. In this case, seven churches and three individuals (the “Applicants”) challenged the constitutionality of specific sections of Manitoba’s Emergency Public Health Orders (“PHOs”), arguing that those sections, together with restrictions on public gatherings, gatherings in private residences and the temporary closure of places of worship, infringed, among other freedoms, their section 2(a) freedom of conscience and religion under the Canadian Charter of Rights and Freedoms (“Charter”).

The Applicants sought, in part, a declaration that the violations could not be saved under section 1 of the Charter. They argued, in part, in favour of “herd immunity”, and that places of worship could safely hold indoor services with minimal spread by following guidelines recommended by the Centers for Disease Control and Prevention.

As the province conceded that section 2 of the Charter had been infringed by the PHOs, it contended instead that the limits on any section 2 rights are “constitutionally defensible in that they are reasonable, proportionate and justified in order to address a serious public health emergency: a global pandemic with grave, sometimes deadly consequences.” However, the court clarified that the PHOs restricted, rather than infringed, Charter rights, and that the Oakes test would be applied to determine if the restriction was justifiable under section 1 of the Charter, by asking (1) whether the legislative goal is “pressing and substantial” and sufficiently important to justify limiting a Charter right, and (2) whether the means employed is proportionate to the objective.

In examining evidence put forth by both the Applicants and the province, the court found differing views and interpretations of evolving scientific information, and considered whether there is nonetheless, a sufficiently sound and credible evidentiary basis (even in light of any opposing evidence) for Manitoba’s claim that the limitations and restrictions placed on certain fundamental freedoms represent valid policy approaches which are reasonably justified and constitutionally defensible in Canada’s free and democratic society.

The court found that “the credible science that [the province] invoked and relied upon, provides a convincing basis for concluding that the circuit-break measures, including those in the impugned PHOs, were necessary, reasonable and justified.”

Having found that the section 2(a) Charter freedom of conscience and religion had been restricted, the court considered the pressing and substantial nature of the PHO restrictions. The court found that the objectives were “clearly meant to protect public health and more specifically, they are meant to save lives, prevent serious illness and stop the exponential growth of the virus from overwhelming Manitoba’s hospitals and acute healthcare system”, a point which the Applicants did not contend. The PHO objectives were therefore sufficiently pressing and substantial.

With regard to the proportionality part of the Oakes test, the court found that the PHOs’ limits on gatherings (including places of worship) were rationally connected to the goal of reducing the spread of COVID-19, given that “the risk of transmission is particularly high in gatherings involving close contact for prolonged periods”. It also found that the measures in the PHOs minimally impaired the rights at issue, since the province required a “quick and clear response” and there was no evidence of significantly less intrusive measures that might have been equally effective. Finally, it considered the balance between the identifiable beneficial and deleterious effects of the PHO restrictions, finding that the evidence “unquestionably demonstrates that the salutary effects of the limitation far outweigh those effects that may be characterized as deleterious,” particularly in light of the benefits of the provincial response in the face of the threat of a deadly pandemic. It therefore found that, while the PHOs may have restricted section 2 Charter rights, those restrictions were justifiable under section 1, and upheld the PHOs as constitutional.

While the case also considers other matters, including administrative law matters and the doctrine of paramountcy, it is a clear example of the court’s ability balance the Charter right to freedom of conscience and religion with conflicting legislation and government measures.


Read the November 2021 Charity & NFP Law Update