It’s the time of year when Christians crowd into churches, Jews meet family for Passover, and Sikhs march to celebrate Vaisakhi, but the risk of Covid-19 has forced most religiously-observant Canadians to stay at home instead.
All provinces have placed at least some restrictions on public gatherings including religious services with hefty fines for those who break the rules. Alberta is allowing religious services to go ahead but only with fewer than 15 people and only if worshippers maintain a physical distance of two metres from one another. Ontario has banned gatherings of more than five. Quebec has outlawed gatherings of any size.
Most people understand that these bans on get-togethers are vital to slowing the spread of Covid-19 and plan to do their part by staying home. Still, they may be wondering whether such infringements are constitutional. Everyone has the right under section 2(a) of the Charter of Rights and Freedoms to “freedom of conscience and religion.” Can governments really fine us if we get together to pray?
Maxime St-Hilaire, a constitutional law professor at the Université de Sherbrooke, says he believes the infringement on freedom of religion would be easy for a government to justify under section 1 of the Charter, which allows governments to pass laws that limit rights and freedoms as long as those limits are “reasonable” and “demonstrably justified in a free and democratic society.”
The Supreme Court of Canada decided in the case R v Oakes that limits to Charter rights and freedoms can be justified if the government can show there is a pressing and substantial objective for the law and if the means chosen to achieve the law’s objectives are proportional to the burden imposed. To decide if the means are proportional, the objective must be rationally connected to the limit, the limit must minimally impair the Charter right, and there must be a balance between the benefits of the limit and its deleterious effects. St-Hilaire says it’s obvious that fighting a deadly disease is a pressing and substantial objective and that keeping people physically separated is rationally connected to limiting the size of religious services. It’s also clear that the benefit of the limit—saving lives—outweighs the negative effect—not being able to pray with one another.
The only viable argument a person might make is that such laws are not minimally impairing because it may still be possible to hold a religious gathering while keeping people two metres from others, perhaps while wearing face masks. However, St-Hilaire points out that the Supreme Court has said on numerous occasions that a limit may still be considered minimally impairing even if the claimant can think of less intrusive ways for the government to achieves its goal. After all, we elect legislators to weigh different considerations and make the calls about where to draw the lines.
In a case called RJR-MacDonald, Chief Justice Beverley McLachlin explained that rights-infringing laws “must be carefully tailored so that rights are impaired no more than necessary,” but “the tailoring process seldom admits of perfection and the courts must accord some leeway to the legislator.” As a result, “If the law falls within a range of reasonable alternatives, the courts will not find it overbroad merely because they can conceive of an alternative which might better tailor objective to infringement.”
McLachlin applied this reasoning in Alberta v Hutterian Brethren of Wilson, a case in which a religious colony argued its freedom of religion had been infringed by the Alberta government’s decision to end religious exemptions to the requirement that photos be taken for driver’s licenses. The government said they made the change so that they could create a facial-recognition technology database to cut down on identity theft. The Hutterite Brethren made up roughly half of the 450 people who had the exemption. They believed the Bible prohibited them from being photographed. The Hutterite argued in court that without photo-free driver’s licences, they would not be able to drive. McLachlin decided that the government’s program was minimally impairing because the means the Alberta government had chosen to achieve its goal of a system-wide database was “reasonably tailored to address the problem of identity theft associated with driver’s licences.”
Justice Rosalie Abella disagreed, arguing that “the harm to the constitutional rights of the Hutterites, in the absence of an exemption, is dramatic,” while “the benefits to the province of requiring them to be photographed are, at best, marginal.” Abella found that the law was not minimally impairing and lacked proportionality between its benefits and effects, noting that the gain to the government of having roughly 250 more photographs in a system with 700,000 drivers was far outweighed by the negative impact of forcing a rural religious colony to either give up driving or give up their deeply-held religious belief. McLachlin had the support of a majority of her colleagues so she won and Abella lost.
St-Hilaire believes that in the context of an emergency like Covid-19, the courts would be even more deferential to the legislature’s decision about where to draw the line on religious gatherings and are therefore likely to find these limits constitutional. In other words, we might need to start praying together on Zoom.