Ontario v. Trinity Bible Chapel et al

CITATION: Ontario v. Trinity Bible Chapel et al, 2022 ONSC 1344

KITCHENER COURT FILE NO.: CV-21-00000095-0000

ST. THOMAS COURT FILE NO.: CV-21-08

DATE: 20220228

CORRECTED RELEASE DATE: 20220603

ONTARIO

SUPERIOR COURT OF JUSTICE

)

BETWEEN:

The Attorney General of Ontario

) Josh Hunter / Ryan Cookson /

Applicant / Respondent ) Andrea Bolieiro / Maia Stevenson, for the

) Applicant

and

)

Trinity Bible Chapel, Jacob Reaume, Will

Schuurman, Dean Wanders, Randy Frey,

Harvey Frey, and Daniel Gordon

)

Rob Kittredge / Lisa Bildy / Hatim Kheir,

for the Respondents

Respondents / Moving Parties )

and

)

Association for Reformed Political Action

)

Intervenor )

André Schutten / Tabitha Ewert, for the

Intervenor

)

AND BETWEEN:

Her Majesty the Queen in Right of Ontario

)

Josh Hunter / Ryan Cookson /

Andrea Bolieiro / Maia Stevenson, for the

Applicant

Applicant / Respondent )

and

)

The Church of God (Restoration) Aylmer,

)

Henry Hildebrandt, Abram Bergen, Jacob

Hiebert, Peter Hildebrandt, Susan Mutch,

Elvira Tovstiga, and Trudy Wiebe

Rob Kittredge / Lisa Bildy / Hatim Kheir,

for the Respondents

Respondents / Moving Parties )

and

)

Association for Reformed Political Action

)

André Schutten / Tabitha Ewert, for the

Intervenor

Intervenor )

)

) HEARD: January 31, February 1, and

February 2, 2022

)

Page: 2

Correction to Ruling: The text of the original Ruling has not been amended in any way.

Paragraph number has been added at para. 61, therefore, adjusting paragraph numbers

from para. 61 onward to conclusion of Ruling. This copy replaces all other copies.

Ruling on Constitutional Validity of Religious Gathering Restrictions (Covid-19)

POMERANCE J.

[1]

The Covid-19 pandemic sent shockwaves across the globe. The virus has killed millions

worldwide and has caused many others to experience chronic debilitating health

conditions. While particularly dangerous for certain populations – those over the age of

60 and/or with underlying health conditions – Covid-19 does not discriminate based on age

or infirmity. New variants of concern have increased mortality rates among young and

healthy individuals. Covid-19 has threatened the viability of health care systems by

consuming medical resources, leaving other illnesses untreated, and stretching hospitals

and intensive care units (“ICUs”) to their limits.

[2]

These exigencies have presented complex challenges for public health officials and

government bodies. The virus, sometimes seen as an anthropomorphic enemy combatant,

has been difficult to defeat. Covid-19 was not only a new foe; its shape-shifting qualities

made it difficult to pin down. Very little was known about Covid-19 when it first took

hold. As scientific understanding evolved, so too did the virus. Moving targets defy stable

solutions. The dynamic trajectory of the pathogen, and the accompanying threat to public

health, required early and effective intervention by public officials.

[3]

The Ontario government, like other provinces across Canada, introduced measures to

reduce the risk of Covid-19 transmission. A holistic strategy with many interlocking parts,

these measures included restrictions on in-person gatherings. As the evidence in this case

reveals, the risk of infection increases when people congregate together, particularly in

proximity for extended periods. Some activities, such as singing and loud speaking, can

further increase the spread of infectious droplets from person to person. Given the method

Page: 3

and rate of transmission, one infected person can spread the virus to many others. By

limiting social, commercial, and religious gatherings, Ontario curbed those activities most

likely to cause viral spread.

[4]

At issue in this case are the limits imposed on religious gatherings. The claimants and

intervenor assert that the religious gathering limits were unnecessary, arbitrary, and

overbroad. They argue that the constitutional infringement of s. 2 of the Charter cannot

be justified as a reasonable limit under s. 1 of the Charter. Ontario resists the challenge,

arguing that the restrictive measures were overwhelmingly in accord with the Charter, but,

to the extent of inconsistency, were justifiable under s. 1.

[5]

Having applied the constitutional frameworks, I have determined that certain religious

gathering restrictions imposed by Ontario infringed s. 2(a) of the Charter. I am, however,

satisfied that the limits on s. 2(a) are amply and demonstrably justified as reasonable limits

in a free and democratic society. I will elaborate on these conclusions in the reasons that

follow.

A. PRELIMINARY OBSERVATIONS

[6]

At the outset, I offer the following observations:

1. Scientific Debate: Various affidavits were filed on this hearing, including evidence from

medical experts. These experts disagree on several points, including the extent to which

Covid-19 posed an unprecedented threat to public health, the extent to which the virus can

be transmitted outdoors, and the extent to which religious gatherings pose a greater risk of

transmission than retail settings. My role is not that of an armchair epidemiologist. I am

neither equipped nor inclined to resolve scientific debates and controversy surrounding

Covid-19. The question before me is not whether certain experts are right or wrong. The

question is whether it was open to Ontario to act as it did, and whether there was scientific

support for the precautionary measures that were taken.

2. Hindsight is not the Standard: Hindsight is not the lens through which to assess

government action in this case. Close to two years into the pandemic, we know more than

Page: 4

we did in the past, but historical measures must be understood against the backdrop of

historical knowledge. The question is not what we know now; it is what was reasonably

known and understood at the time of each impugned action.

3. Scope of the Challenge: This case presents as motions to set aside three judicial orders,

directing compliance with regulations imposing gathering limits. Different regulations

were in force at different times. Some are challenged by the moving parties; some are not.

Of those that are challenged, each must be evaluated independently against the backdrop

in place at the relevant time.

4. Non-compliance with the Law: It is no secret that the moving parties have flouted the

restrictions. That is a serious matter, but it does not bear on the constitutional analysis in

this case. First, the disobedience has been addressed in other proceedings, where findings

of contempt have been made and penalties imposed. Second, the claimants are seeking a

general declaration of constitutional invalidity. Whatever the level of their compliance,

they have the right not to be subject to an unconstitutional law: see R. v. Big M Drug Mart

Ltd., [1985] 1 S.C.R. 295 (“Big M”). Finally, constitutional analysis must logically presume

compliance, as it is through compliance that the effects of the law are experienced.

5. Judicial Humility and Deference to the State: The Charter confers upon the judiciary

the power to invalidate law that is inconsistent with the Constitution. This is an important

and legitimate function of the judiciary as a check on the exercise of executive authority

and a means of ensuring the protection of minority interests. This authority does not,

however, transfer the legislator’s pen into judges’ hands. The judicial lens is one governed

by deference, not blind or absolute deference, but a thoughtful deference that recognizes

the complexity of the problem presented to public officials, and the challenges associated

with crafting a solution.

6. Judicial Humility and Deference to the Religious Claimants: Judicial humility also

aids in understanding and appreciating the claimants’ tenets of religious belief and practice,

and the extent to which a particular restriction impeded religious activity. Ontario does not

dispute the sincerity of religious beliefs asserted in this case, though it does challenge the

Page: 5

idea that all parishioners need to be together in one place at one time for services. There is

no single or uniform standard for religious belief or practice. Such matters are inherently

variable and profoundly personal. In determining whether capacity restrictions infringe

freedom of religion, the court must pay deference to the claimants’ account of the resulting

detrimental effects.

7. The Scope of this Decision: I have had the benefit of reading the scholarly decisions

of other jurists who have presided over similar cases. I have taken valuable guidance from

the decision of Joyal C.J. in Gateway Bible Baptist Church et al. v. Manitoba et al., 2021

MBQB 219 (“Gateway”); the decision of Hinkson C.J. in Beaudoin v. British Columbia,

2021 BCSC 248 (“Beaudoin”); and the decision of Burrage J. in Taylor v. Newfoundland

and Labrador, 2020 NLSC 125 (“Taylor”). At the same time, my ruling is, by necessity,

defined by the evidence led in this case and the arguments presented by the parties before

me. This decision is not to be taken as a general edict on, or comprehensive inquiry into,

Ontario’s response to the pandemic. My task is to answer specific legal questions based

on specific evidence led by specific parties.

B. THE NATURE OF THE PROCEEDING

[7]

The moving parties seek to set aside three judicial orders directing compliance with

religious gathering limits, more specifically:

a. An order setting aside the Order of The Honourable Mr. Justice Thomas,

dated February 12, 2021 (the “Order”), directing compliance with any

continued s. 7.0.2 order, as defined in the Reopening Ontario (A Flexible

Response to Covid-19) Act, 2020, S.O. 2020, c. 17 (“ROA”), in respect of

gatherings for the purpose of a religious service, rite, or ceremony;

b. An order setting aside and/or discharging the Order of The Honourable

Mr. Justice Sweeny, dated January 22, 2021 (the “Order”), directing

compliance with Rules for Areas in Shutdown Zone and at Step 1, O. Reg.

82/20; and

Page: 6

c. An order setting aside the Order of The Honourable Mr. Justice Sweeny,

dated April 16, 2021 (the “Order”), directing compliance with Rules for

Areas in Shutdown Zone and at Step 1, O. Reg. 82/20 or any other continued

s. 7.0.2 order, as defined in the Reopening Ontario (A Flexible Response to

COVID-19) Act, 2020, S.O. 2020, c. 17 (the “ROA”), in respect of

gatherings for the purpose of a religious service.

[8]

[9]

The above orders were obtained by Ontario to compel compliance with religious gathering

limits. The moving parties/claimants argue that the orders must be set aside because the

regulations are unconstitutional. They seek declarations to that effect.

The motions are brought by two groups of litigants. The first consists of the Trinity Bible

Chapel (“Trinity”) located in Waterloo, Ontario, and various named members. The second

consists of the Church of God (Restoration) (“Church of God”) located in Aylmer, Ontario,

and various named members. Given the commonality of issues it was agreed by all parties

that the motions should be consolidated and heard together in the Superior Court of Justice

in St. Thomas, Ontario. The matter proceeded before me for three days on the virtual Zoom

platform.

C. THE CLAIMANTS/MOVING PARTIES

1.

Church of God (Restoration) Aylmer

[10] Church of God is a non-denominational religious organization located in Aylmer, Ontario.

Many of the parishioners are from a Mennonite background. Prior to Covid-19, the church

could safely accommodate approximately 400 people.

[11] Church of God closed for a time in March 2020 and then began holding drive-in services

in April of that year. Church officials initially complied with the law, adhering to capacity

limits and taking other health precautions. In January 2021, in response to a new lockdown,

Church of God took matters into their own hands and began holding large-scale, in-person

services. Ontario obtained a restraining order under s. 9 of the ROA directing compliance

with the limits. As a result of continued non-compliance, Church of God has faced

Page: 7

contempt proceedings and substantial fines. Additional charges are pending, subject to the

outcome of the constitutional litigation.

2.

Trinity Bible Chapel

[12] A second group of litigants consists of Trinity and various named individuals. Trinity can

safely accommodate up to 900 people in a non-Covid-19 context. It can also use its

gymnasium as an overflow area.

[13] Rev. Jacob Reaume is the senior pastor of Trinity. In his affidavit, he notes that prior to the

first lockdown in March 2020, Trinity often had between 600 to 700 people in attendance

for services each week, with a capacity of 900.

[14] Trinity complied with restrictions for some time but resorted to disobedience when Ontario

locked down again in December 2020. Like Church of God, Trinity was subject to

restraining orders under s. 9 of the ROA, and its continued non-compliance led to contempt

proceedings and fines.

[15] While the Trinity challenge was initially commenced in Kitchener, Ontario, the parties

agreed that both challenges should be heard together in St. Thomas.

3.

Association for Reformed Political Action

[16] I granted intervenor status to the Association for Reformed Political Action (“ARPA”) to

make written and oral submissions in this case.

[17] ARPA describes itself as a “not-for-profit, non-partisan organization which serves at the

intersection of government (including the courts) and Canada’s Reformed Christian

community – a distinct, minority religious group in Canada”. ARPA directs its mission to

Reformed Christians in Canada who primarily attend Reformed congregations across

Canada, including 80 within Ontario.

[18] Counsel for ARPA presented written and oral submissions on the constitutional issues.

These submissions complemented the submissions advanced by the main claimants.

Page: 8

D. THE REGULATIONS IN ISSUE

[19] The regulations under challenge are no longer in effect. They have been replaced, most

recently, by new law in force as of January 31, 2022. The claimants seek historical

declarations of constitutional invalidity.

[20] Not every regulation is challenged. First, the challenge relates to laws covered by the

judicial orders. The first Order is that of Sweeny J., dated January 22, 2021. Any

regulations in force, but repealed before that date, are not before the court. Second, during

oral argument, the moving parties clarified that they do not challenge regulations that only

imposed physical distancing requirements. The challenge is aimed at restrictions expressed

as numerical caps on attendance, or percentage capacity limits imposed on religious

gatherings, both indoors and outdoors.

1. Chronology

[21] By way of backdrop, it may be of assistance to present a brief and general summary of

Covid-19 restrictions in Ontario.

[22] On March 17, 2020, the Ontario cabinet, by way of an Order in Council, declared a state

of emergency in response to the outbreak of a communicable disease, namely Covid-19,

triggering the application of the Emergency Management and Civil Protection Act, R.S.O.

1990, c. E.9 (“EMCPA”). The stated goal of this action was to ensure that hospitals would

not be overwhelmed by a sudden increase in patients requiring care, and that the best way

to prevent that was to “flatten the curve” and slow the spread of the virus.

[23] Section 7.0.2 of the EMCPA sets forth the purpose and limitations of the emergency

legislation as follows:

Purpose

7.0.2 (1) The purpose of making orders under this section is to promote the

public good by protecting the health, safety and welfare of the people of

Page: 9

Ontario in times of declared emergencies in a manner that is subject to the

Canadian Charter of Rights and Freedoms.

Criteria for emergency orders

(2) During a declared emergency, the Lieutenant Governor in Council may

make orders that the Lieutenant Governor in Council believes are necessary

and essential in the circumstances to prevent, reduce or mitigate serious harm

to persons or substantial damage to property, if in the opinion of the

Lieutenant Governor in Council it is reasonable to believe that,

(a) the harm or damage will be alleviated by an order; and

(b) making an order is a reasonable alternative to other measures that might

be taken to address the emergency.

Limitations on emergency order

(3) Orders made under this section are subject to the following limitations:

1. The actions authorized by an order shall be exercised in a manner which,

consistent with the objectives of the order, limits their intrusiveness.

2. An order shall only apply to the areas of the Province where it is necessary.

3. Subject to section 7.0.8, an order shall be effective only for as long as is

necessary.

[24] By Order in Council on March 24, 2020 (O. Reg. 82/20), Ontario ordered the closing of

“non-essential” businesses and institutions, including churches and other faith settings.

Page: 10

[25] The state of emergency and the regulations (as varied from time to time) made pursuant to

the EMCPA were extended by both the cabinet and the legislature periodically until

approximately July 24, 2020, at which time the first state of emergency was declared ended

and the ROA came into force.

[26] Pursuant to s. 2 of the ROA, certain regulations made under the EMCPA were continued,

amended, and renewed regularly. This included restrictions on social, commercial, and

religious gatherings.

[27] On April 27, 2020, the Framework for Reopening the Province was released, which set out

criteria for loosening emergency measures. On November 3, 2020, the Keeping Ontario

Safe and Open Framework was produced, which introduced a modified tiered approach

intended to scale restrictions up and down. On December 26, 2020, Ontario placed the

entire province under a “shutdown”, which severely restricted many of the activities of

Ontarians, including their attendance at places of worship which were limited to a hard cap

of ten persons indoors. Retail businesses were granted exemptions, provided they limited

the number of persons inside to 25 percent of their building capacity.

[28] On or about January 12, 2021, the Province of Ontario was once again placed under a state

of emergency, which lasted until approximately February 9, 2021, and provisions of both

the EMCPA and the ROA applied during this period. The ROA then continued in force,

with various regions of the province moving in and out of certain “zones”.

[29] Effective March 15, 2021, Ontario amended O. Reg. 82 to remove the ten-person cap and

replace it with a 15 percent capacity limit.

[30] On April 7, 2021, the Province declared a third state of emergency, stating:

DECLARATION OF EMERGENCY

WHEREAS COVID-19 constitutes a danger of major proportions that could result

in serious harm to persons;

Page: 11

AND WHEREAS the criteria set out in subsection 7.0.1 (3) of the Act have been

satisfied; NOW THEREFORE, an emergency is hereby declared pursuant to

section 7.0.1 of the Act in the whole of the Province of Ontario.

[31] On April 1, 2021, the Province moved all 34 public health units in Ontario into the

“Shutdown Zone” and declared a third province-wide state of emergency on April 7, 2021.

On May 20, 2021, Ontario government announced its three-step Roadmap to Reopen, and

the province-wide stay at home order was lifted on June 2, 2021.

2. Factors Considered by Ontario

[32] As the pandemic progressed, Ontario varied the stringency of gathering limits based on

public health data and advice from public health professionals. According to Dr.

McKeown, Ontario’s Associate Chief Medical Officer of Health, the following priorities

determined which measures should be in place at which times:

a. Limiting the transmission of Covid-19;

b. Avoiding closures while reducing the risk of transmission;

c. Keeping schools and childcare facilities open;

d. Maintaining health care and public health system capacity;

e. Protecting vulnerable populations; and

f. Providing additional support to those disproportionately affected by the pandemic.

[33] The strictest gathering limits were in place during the three declared provincial states of

emergency. According to Dr. McKeown, it was during these periods that Covid-19 cases

were increasing in number rapidly. Hospitals and ICUs were approaching full capacity.

Both the rates of Covid-19 transmission in Ontario and the burden on the Ontario health

care system were at their highest levels. Dr. McKeown says that, following the

Page: 12

implementation of public health measures during the second and third states of emergency,

there were substantial decreases in the number of Covid-19 cases. Several considerations

informed Ontario’s response, but they are neither exhaustive nor determinative: methods

of transmission (e.g. close contact, poor ventilation); masks and physical distancing;

community prevalence and burden on the health care system; and variants of concern.

[34] Throughout the pandemic, churches were able to hold services online, and from May 16,

2020 onward, drive-in services were permitted so long as persons from each household

remained in their vehicles.

3. Chart of Restrictions

[35] For ease of reference, I have reproduced the chart of restrictions presented by the moving

parties. The chart refers to the restrictions in place in the Public Health Units of interest in

this case.

Date (D/M/Y)

Outdoor

Indoor

Regulation

364/20

Essential Retail

23/11/20 - 26/12/20

100 ppl

(SW)

30% cap.

(SW)

Capacity limited to

number capable of

maintaining 2m

distance

(23/11/20)

per 363/20

100 ppl

(WA)

30% cap.

(WA)

26/12/20 - 9/2/21

10/2/21 - 15/2/21

16/2/21 - 28/2/21

1/3/21 - 29/3/21

10 ppl

82/20 (26/12/20)

per 363/20

50% capacity and 2m

distance

10 ppl

82/20 (10/2/21)

per 363/20

50% capacity and 2m

distance

100 ppl

30% cap.

263/20 (16/2/21)

per 363/20

75% capacity and 2m

distance

100 ppl

(SW)

30% cap.

(SW)

364/20

Capacity limited to

number

(26/2/21)

Page: 13

capable of maintaining

2m

(SW)

100 ppl

(WA)

30% cap.

(WA)

263/20 (26/2/21)

distance (SW)

(WA)

75% capacity and 2m

distance (WA)

per 363/20

29/3/21 - 2/4/21

No fixed

limit

30% cap.

364/20

Capacity limited to

number

(29/3/21)

Maintain

2m

capable of maintaining

2m

(SW)

263/20 (29/3/21)

distance

distance (SW)

(WA)

75% capacity and 2m

distance (WA)

per 363/20

3/4/21 - 18/4/21

Maintain

2m

15% cap.

82/20 (3/4/21)

per 363/20

50% capacity and 2m

distance

10 ppl

19/4/21 - 10/6/21

11/6/21 - 29/6/21

10 ppl

82/20 (19/4/21)

per 363/20

25% capacity and 2m

distance

Maintain

2m

15% cap.

82/20 (8/6/21)

per 363/20

25% capacity and 2m

distance

Maintain

2m

30/6/21 - 15/7/21

25% cap.

263/20 (29/6/20)

per 363/20

50% capacity and 2m

distance

E. IMPACT OF THE RESTRICTIONS ON THE RELIGIOUS CLAIMANTS

[36] In his affidavit, Pastor Henry Hildebrandt of the Church of God described the impact of

religious gathering limits upon his parishioners, at paras. 4 and 55-59:

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Since its inception, the Church has been the spiritual home for a congregation

comprised mainly of small-town and rural parishioners, many of whom come from

a Mennonite background and speak Low German. The congregation currently

numbers approximately 260 people. Our facility can safely house over 400 people.

…

To our parishioners, church is indeed an essential service, and we believe it is not

for the government to decide what is essential to us.

Although the Church of God is non-denominational, most of our congregants come

from a Mennonite tradition, which has a long history of state persecution, societal

disdain for its pacifism and way of life, and movement of its people from country

to country in order to be able to worship in peace without unreasonable state

interference.

Those of us now living in Canada place great trust in the Charter of Rights and

Freedoms to protect our right to worship, assemble, associate and express ourselves

freely, and have marched in many rallies over the last year to remind Canadians to

treasure our inheritance of a free society.

As a pastor, ministering to my church and the broader community that has reached

out to me over the last year, I verily believe that the government's unprecedented

actions have harmed people and society by perpetuating loneliness, hopelessness,

fear, poverty, division, anger, the deterioration of relationships.

The effect of these restrictions was a gross and substantial interference in the

practice of our faith, individually and collectively. Our faith is fundamental to our

lives. It is not a “non-essential” service – it goes to the core of who we are as

Christians.

[37] Rev. Reaume offered similar observations in his evidence. According to Rev. Reaume,

scripture teaches that people are more than biological units and should live free, love one

another, worship together, eat with each other, and embrace one another, among other

things. The ministry of the church is central to the Christian life. He further explained, at

paras. 30-31, 73-75, and 85 of his affidavit:

My observation and belief is that these times of isolation, due to the government’s

restrictive actions, have harmed people and society by perpetuating loneliness,

hopelessness, fear, poverty, division, anger, the deterioration of relationships, and

a plethora of other evils which will become more evident with time. These

observations do not surprise me because the restrictive actions of the government

have wrongfully reduced human beings to biological units with little purpose to

existence other than to avoid contracting and spreading a virus.

Page: 15

Scripture teaches us that people are much more than biological units. We are

created in the image of God with dignity and worth to live free, love one another,

worship together, grow families, eat with each other, laugh and cry together,

embrace one another, exchange goods and services, and build things. Central to the

Christian life is the ministry of the church, and [Trinity] asserts that the church must

remain open.

…

We (being myself and the leadership at [Trinity]) believe that a person's overall

well-being must take into account much more than merely their physical health.

Mental and spiritual health are critical as well. The seemingly endless lockdowns

and stay-at-home orders, never before imposed on the entire population, are

exclusively concerned with a single virus. This seems outrageous and unjustifiable

to us.

People in Trinity Bible Chapel’s congregation make their own informed decisions

where they are comfortable going, whether it be the grocery store or to worship

services. These are personal choices that [Trinity] leaves to each individual’s

consideration and conscience.

Online video productions cannot replace the peaceful assembly and association of

our members. For a week or two during a crisis it might be reasonable, but for a

protracted period of time it is untenable. Church is not a show or spectacle on our

screens - it is a participatory experience. It involves communal prayer, song, and

fundamental rituals such as communion and baptism. Physical gathering is essential

to us, to our well- being, to our faith, and to civil society.

…

Being bound by Scripture to be with each other, members of Trinity Bible Chapel

therefore have solemnly covenanted before God to worship together and be with

each other regularly. To not be together is to violate God's commands and our own

solemn oath and covenant. …

[38] As noted above, ARPA, as intervenor, supported the claims of the moving parties. The

following statements, contained in the application to intervene, served as a foundation for

ARPA’s arguments before the court:

The impact of Covid-19 restrictions on the practice of in-person public

worship (including celebrating communion) has been a top issue of concern

for ARPA Canada’s constituency since March 2020.4 That constituency,

including the several thousand within Ontario, is profoundly impacted by

the regulations under review in this proceeding because Reformed

Christians sincerely hold to particular religious beliefs, including the belief

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in the religious obligation to be a member of a local church and to gather –

physically, in-person – with members of that local church for worship and

for the administration of religious sacraments.

Reformed Christians sincerely believe, as a matter of religious conviction,

that this corporate aspect of worship cannot be replicated through virtual

means

F. THE THREAT POSED BY COVID-19

[39] Various experts offered opinions on Covid-19 in affidavits and in cross-examination.

There are differences of opinion on core issues. Ontario relies primarily on the evidence

of Dr. McKeown, Associate Chief Medical Officer of Health, who advised Ontario on its

prevention strategy during the pandemic, and Dr. Hodge, a physician who practices public

health and preventative medicine. Ontario also tendered an affidavit from Dr. Chagla. The

moving parties rely on the evidence of Dr. Warren, an infectious diseases consultant and

medical microbiologist, and the evidence of Dr. Schabas, a doctor specializing in internal

medicine and in public health. The moving parties also rely on evidence given by Dr.

Chagla in his cross-examination.

[40] I will summarize the key points made by the experts, beginning with Ontario’s evidence

and then turning to that of the moving parties. As noted earlier, it is not my role to choose

between dueling experts on the science of Covid-19. The question is whether it was

reasonable for Ontario to do what it did, on the basis of the evidence available to it at the

relevant time. The views expressed by Dr. McKeown and Dr. Hodge best reflect what was

known and understood by Ontario when it made its decisions. Therefore, I have set out

their evidence in some detail.

1. Ontario’s Experts

a. The Nature of the Covid-19 Virus

[41] Dr. McKeown described Covid-19 as an illness caused by a coronavirus that infects the

respiratory system. Infection causes symptoms of upper respiratory tract infection

including cough, fever, and sore throat. Covid-19 infection also appears to cause a

characteristic loss of taste and smell for many infected people. Based on Ontario’s Covid-

Page: 17

19 experience, five percent of people with Covid-19 will require hospital-based care,

typically for oxygen at a minimum and often ICU-level care. Complications leading to ICU

admission or death may include respiratory failure, acute respiratory distress syndrome,

sepsis and septic shock, thromboembolism, and/or multiorgan failure, including injury of

the heart, liver, or kidneys. As of June 24, 2021, in Ontario, 543,571 people had been

diagnosed with Covid-19, and 9,101 (approximately 1.7 percent) had died. The number of

cumulative cases of Covid-19 in Ontario is likely higher than the number of recorded cases,

since some individuals who acquire Covid-19 are not tested and diagnosed.

[42] The number of reported Covid-19 infections, hospitalizations, and deaths as of June 24,

2021 (Ontario), June 29, 2021 (Canada), and June 30, 2021 (global) are set out in the table

below.

Cases

543,571

Hospitalizations

27,643

Deaths

9,101

Ontario

Canada

Global

1,414,736

181,521,067

74,044

26,273

Unavailable

3,937,437

[43] According to Dr. McKeown, the primary method of Covid-19 transmission is through

direct contact with respiratory droplets (or, in some cases, smaller particles known as

“aerosols”) from an infected person, propelled when that person coughs, sneezes, sings,

shouts, or talks. Certain behaviors, such as singing, shouting, or loud speaking, can increase

the risk of Covid-19 transmission.

[44] Transmission occurs predominantly through close contact (two metres or less) with an

infected individual, but transmission over longer distances (more than two metres) is

possible. Transmission is more likely when people are in close physical proximity with an

infected person over a prolonged period. The risk of transmission is especially high in

settings with poor ventilation or where there is recirculation of unfiltered air, which may

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allow droplets or aerosols to travel further distances. For example, there is evidence of high

rates of transmission in household settings, where individuals are in close proximity in

enclosed areas without the ability to physically distance.

[45] Because Covid-19 is spread primarily through close contact with an infected individual,

large gatherings, whether indoors or outdoors, present a risk of transmission. The larger

the gathering, the greater the likelihood that there will be individuals in that gathering who

have Covid-19 and will transmit the virus to others. If individuals in a gathering become

infected, they will often transmit the virus to other members of their households. As a

result, gatherings of people from different households presents an especially high risk of

widespread transmission throughout the population.

[46] Covid-19 can be transmitted by people who are pre-symptomatic (i.e. have not yet

developed symptoms) or asymptomatic (i.e. never developed symptoms). Some studies

have shown that transmission can occur as early as six days before the onset of symptoms,

or possibly earlier. As a result, screening for symptoms is insufficient to prevent the spread

of Covid-19 when individuals gather in groups, particularly when the level of Covid-19 in

the general population is high.

[47] Masks and physical distancing can help reduce the risk of Covid-19 transmission but are

insufficient to stop the spread of the virus, particularly when the prevalence of Covid-19 in

the population is high. Masks can be highly variable in their effectiveness in non-

healthcare settings, and their effectiveness decreases if they are ill-fitting or worn

inconsistently. In addition, physical distancing of at least two metres decreases the

likelihood of Covid-19 under some conditions. Similarly, holding gatherings outdoors can

reduce the risk of transmission of the virus, but outdoor transmission can still occur,

especially in large gatherings with inconsistent adherence to mask or physical distancing

requirements.

[48] According to Dr. Hodge, Covid-19 can spread from an infected person’s mouth or nose in

small liquid particles when they cough, sneeze, speak, sing, or breathe heavily. These liquid

particles are different sizes, ranging from larger respiratory droplets to smaller aerosols.

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While the science is still evolving, these particles travel further indoors than outdoors and

their survival on surfaces appears to be greater indoors than outdoors. Whether indoors or

outdoors, people can contract Covid-19 when the virus enters their mouth, nose, or eyes.

[49] Dr. Hodge identified several risk factors for virus transmission, including being in close

contact for prolonged periods, higher voice volume, being indoors, inconsistent use of face

coverings (such as removing a face covering to talk or shout, eat, or drink), improper use

of face coverings (e.g. not covering the nose or wearing one that is too loosely fitted), and

background infection rates in the communities from which a gathering’s attendees are

drawn. As he put it at para. 22 of his affidavit, “the World Health Organization provides

the ‘3C’ framework for assessing risks of COVID-19 transmission: crowded places, close

contact, confined spaces. Risks of Virus transmission are increased when two or more of

these conditions occur together.”

[50] Dr. Hodge agreed that many people infected with Covid-19 show no symptoms

(asymptomatic) or experience several days between when they are infected and when they

develop symptoms (pre-symptomatic). This means that most infected people will

unknowingly infect others before they themselves have symptoms. Thus, to reduce Covid-

19 transmission and the harm that such transmission can cause, restrictions need to apply

to people who do not exhibit Covid-19 symptoms in order to be effective.

b. Burden and the Precautionary Principle

[51] Both Drs. McKeown and Hodge spoke of burden as a critical factor in weighing Ontario’s

pandemic response. According to Dr. McKeown, at paras. 75-76 of his affidavit:

Ontario’s policy response to COVID-19 was also informed by the burdens that the

pandemic placed on the healthcare system. Several times during the pandemic, the

spread of COVID-19 caused hospitalizations and ICU occupancy to increase

significantly. This placed a substantial burden on the healthcare system, as Ontario

has limited capacity to treat seriously ill patients who require hospitalization or

intensive care. The increase in ICU patients was particularly concerning because it

not only threatened the ability of the healthcare system to deal with COVID-19

patients, it also compromised the ability of the healthcare system to care for regular

(i.e. non-COVID-19) patients. The diversion of healthcare resources to serve

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seriously ill patients with COVID-19 also creates a backlog of surgical and other

medical treatments for other medical problems.

When the burdens on the healthcare system are high, even small increases in

transmission within the population can have a significant negative impact on the

healthcare system and potentially impact patient care. For example, in April 2021,

ICU occupancy in some regions in Ontario was over 86%. At that time, there was

a risk that ICU capacity would be stretched beyond its limits, even with small

increases in the number of critically ill patients. Within that context, activities that

pose a relatively low risk of transmission could significantly increase the burden on

an already strained healthcare system.

[52] According to Dr. Hodge, at paras. 16 and 10 of his affidavit:

A health system in which every available bed is occupied by someone

infected with COVID-19 has no way to respond to people with heart attacks,

hip fractures or strokes, potentially adding to the elevated mortality

attributable to COVID-19. Put simply, the harms caused by COVID-19

would be compounded with additional preventable deaths due to heart

attacks, hip fractures and other health conditions if there are no beds and no

staff available to care for patients with these conditions. Once

overwhelmed, the acute care system would likely face a prolonged recovery

period, hence the relevance of the precautionary principle to decision

making aiming to ensure the integrity of the health system.

…

When Ontario enacted more stringent public health measures during each of the

three waves of the pandemic to date, there was increasing community prevalence

of COVID-19, growing numbers of new cases, and concerns about hospital and

ICU occupancy. Accordingly, in my opinion it was a reasonable public health

measure to restrict religious gatherings temporarily while community spread of

COVID-19 posed this potential (wave 1) or real (waves 2 & 3) burden on Ontario’s

health care system. Furthermore, the emergence of variants of concern (“VOC”),

with initial uncertainty about their transmissibility and severity, borne out by

evidence of higher transmissibility (alpha & delta variants) and more severe illness

(alpha variant) mandated a more stringent public health response. …

[53] The most restrictive measures were imposed at precisely those times when burden was

dangerously high. He explained that, while some types of gatherings – such as those

outdoors – may pose a relatively low risk of transmission when the level of Covid-19 in

the population is low, those same gatherings may pose a higher risk of transmission when

the level of Covid-19 in the population is high. The time periods with the lowest (or

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strictest) capacity limits corresponded to the time periods when the rate of Covid-19

transmission in the Ontario population and the burden on the Ontario health care system

were at their highest levels. There were higher risks of Covid-19 transmission in a religious

gathering when the baseline number of Covid-19 cases in the general population was, itself,

higher.

[54] Dr. McKeown testified that the public health measures Ontario has imposed at each stage

of the pandemic were informed by several key indicators, such as weekly incidence of

Covid-19, the test positivity rate, the effective reproduction number, and evidence of recent

outbreaks.

[55] Finally, both experts referred to the precautionary principle as a factor in public health

decisions. Dr. Hodge noted the “realities of public health practice in Ontario, including

the need to prepare advice and make decisions with imperfect information, and the

challenge of minimizing adverse effects of measures that establish limits on human

behaviour”: Affidavit of Dr. Hodge, at para. 7. At paras. 7-8 of his affidavit, he went on

to observe that:

Ontario’s Health Plan for an Influenza Pandemic, (“OHPIP”), cited by experts

retained by the Applicant, explicitly recognizes this reality of incomplete

information, noting that ‘the OHPIP severity model includes an initial stage before

severity is known when the limited availability of surveillance data does not allow

for confident identification of severity. The severity may not be clearly known until

after an influenza pandemic is over’. For COVID-19, the rise of variants with

increased transmissibility and, for some variants, increased severity of illness, adds

additional uncertainty.

Second, public health measures in Ontario must take into account the precautionary

principle. The OHPIP states ‘The MOHLTC does not await scientific certainty

before taking action to protect health’. The application of the precautionary

principle is particularly relevant during the early stages of a pandemic when

scientific evidence on the severity of a novel virus is limited or, for COVID-19, as

new variants are identified whose transmissibility and severity are incompletely

understood at the time that government must make decisions to protect Ontarians

from infection, illness and death.

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c. Risk of Infection at Outdoor Gatherings

[56] Dr. McKeown agreed with the claimants’ experts that there is a lower risk of infection

outdoors than indoors. However, he believed that, during certain time periods, restrictions

on outdoor gatherings were necessary to protect the health care system. As he explained

at para. 94 of his affidavit:

Throughout most of the pandemic, the capacity limits for outdoor religious

gatherings were higher (or less strict) than the capacity limits for indoor religious

gatherings. This is consistent with the evidence that the risk of COVID-19

transmission is generally higher indoors compared to outdoors. However, during

some periods when the rate of COVID-19 transmission and the burden on the

healthcare system were at their highest, capacity limits for both indoor and outdoor

religious gatherings were the same. During those periods, the rate of transmission

was so high that outdoor gatherings that would otherwise have posed a relatively

small risk of transmission could still have had a significant impact on the overall

spread of the virus across the province. The higher the number of COVID-19 cases

in the population, the more likely it is that people who participate in a religious

gathering will have COVID-19 and pass it on to others.

d. Religious v. Retail Settings

[57] Finally, both Drs. McKeown and Hodge spoke to the heightened risk of infection in

religious settings, as compared to retail shops. Given the arguments that pivot on this issue,

I will take the liberty of quoting at some length from Dr. McKeown’s affidavit, at paras.

82-86 and 101-104:

In light of the factors described above, religious services and gatherings pose a

significant risk for the spread of COVID-19. They typically involve large

gatherings of people from different households who spend prolonged periods of

time (often more than an hour) in the same physical space. That is precisely the

scenario that has been shown to be associated with a high risk COVID- 19

transmission. That risk is especially high if physical distancing is not strictly

observed, if the services are held indoors or in poorly ventilated areas, or if masks

are not worn (or not worn consistently or correctly).

Religious services are often associated with behaviours that can increase the spread

of COVID-19. For example, many religious services involve singing, chanting or

praying out loud, which can increase the spread of droplets that transmit the virus.

Religious services are also typically gatherings of families and friends in the same

community who know each other well and will be tempted to greet or socialize with

each other in violation of physical distancing requirements. While places of

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worship may take measures to promote physical distancing, in practice good

intentions are often outweighed by human nature.

The risk of transmission at a religious gathering is not confined to those who attend

those gatherings. If someone is infected with COVID-19 at a religious service, it is

very likely that he or she will transmit the virus to other members of his or her

household who, in turn, may transmit COVID-19 to others in the community.

The risk of transmission at religious gatherings increases significantly when the

prevalence of COVID-19 in the community is high. The higher the number of

COVID-19 cases in the general population, the more likely it is that people who

participate in a religious gathering will risk transmission at religious gatherings

increases significantly when the prevalence of COVID-19 in the community is

high. The higher the number of COVID-19 cases in the general population, the

more likely it is that people who participate in a religious gathering will have

COVID-19 and pass it on to others. In addition, when COVID-19 cases in the

general population are high, there is a greater burden on the healthcare system.

When that occurs, even small amounts of transmission at religious gatherings can

have a significant impact on the overall spread of the virus across the province,

resulting in an even greater strain on the healthcare system and potentially

impacting patient care.

Masks and physical distancing can help reduce the risk of COVID-19 transmission

but are insufficient to stop the spread of the virus, particularly when the prevalence

of COVID-19 in the population is high. As noted above, masks can be highly

variable in their effectiveness in healthcare settings and their effectiveness

decreases if they are ill-fitting or worn inconsistently. In addition, physical

distancing of at least 2 metres decreases the likelihood of COVID-19 transmission,

but there is evidence that droplets (or in some cases aerosols) can travel farther…

…

Having said that, there are several reasons why Ontario imposed different public

health measures on essential retail businesses compared to religious gatherings.

Ontario imposed different limits on those retail businesses not because religious

worship is any less essential than retail activities, but because religious gatherings

typically have characteristics that make them more likely to spread COVID-19 than

transient encounters in a retail setting. 102.

The behaviour of persons in religious spaces is different than the behaviour of

persons in retail spaces. First, people spend, on average, more time at religious

gatherings compared to retail settings. It is not uncommon for a person to “run in”

to retail stores to quickly purchase a number of small items. In contrast, religious

gatherings are often an extended length and typically run for more than an hour,

and sometimes for two hours or more. In addition, large groups of people tend to

arrive and depart religious services at the same time, which increases crowding, in

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contrast to retail stores where people typically arrive and depart at many different

times.

Second, the nature of human interaction in a retail setting tends to be different than

human interaction at religious gatherings. Interactions with people outside of a

person's household in a retail store are usually brief (e.g. passing someone in a store

aisle). In contrast, at religious gatherings, there is often prolonged exposure to the

same people sitting together, which presents a greater danger for the spread of the

virus, especially if social distancing rules are not followed, the indoor space is not

well ventilated, or where face coverings are not worn correctly. Another example

is that, in a religious space, people often pray out loud or sing (which is not a

concern in retail settings), which increases the risk of transmission.

Third, unlike in religious gatherings, there is typically no sense of community in

retail settings, such that groups of people would want to greet each other in violation

of physical distancing rules. While well-intentioned people at religious gatherings

may attempt to physically distance from family and friends, good intentions are

often outweighed by human nature. The conflict between the desire to warmly greet

friends and family and diligently following physical distancing rules is less of a

concern in retail stores.

e. Efficacy of Restrictive Measures

[58] Dr. McKeown believes that there is very likely a causal relationship between the measures

that have been put in place and drops in the case count. The Ontario Covid-19 science

advisory table agreed that the measures contributed to the decrease in transmission. These

measures considered case incident reports, percentage of positive testing, hospitalization

rates, and effective measure of transmissibility.

[59] While vaccination is important, Dr. McKeown observed that the trends (i.e. decline in

cases) cannot be explained by vaccination alone. The rising case counts occurred when

public health measures were largely being withdrawn or adjusted. The most effective

public health measures were the ones that were most restrictive, implemented during states

of emergency. He conceded, however, that it is more difficult to judge the effectiveness of

less strict public health measures in the context of rising case numbers. He also conceded

that the “Keep Ontario Safe and Open Framework” (November 2021) was less effective

than subsequent frameworks and was not entirely successful in meeting both objectives of

keeping Ontario safe and open.

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2. The Moving Parties’ Experts

[60] I will now turn to the expert evidence relied upon by the moving parties, addressing each

witness in turn.

a. Dr. Warren

[61] Dr. Warren is an Infectious Diseases Consultant and a medical microbiologist who has

practiced in the specialty area of microbiology for ten years. After referring to the types of

coronaviruses, he identified the factors that are relevant when considering transmission and

mortality caused by Covid-19, at paras. 11-16 of his affidavit:

a. The timing of a wave’s peak is affected by seasonal patterns (colder temperatures

are associated with increased rate of transmission);

b. Population density (provinces with the highest density tend to have the highest

number of cases);

c. Age structure (mortality is linked to age structure, as persons over 80 years of age

have 300 times greater of a chance of dying. The infection rate in those over 80 is

1,000 times greater than in those under 20, and over 95 percent of deaths are

attributed to people over 60 in Canada).

[62] In his affidavit, at para. 16, he opined that the risk of death due to covid in persons under

60 “is very small” and “less than the risk of death due to a motor vehicle fatality”.

According to Dr. Warren, most people who contract Covid-19 experience mild symptoms

or no symptoms at all, and the vast majority recover completely within a few weeks.

According to him, there are severe outcomes, but they tend to occur in people 60 years of

age and older.

[63] Regarding asymptomatic transmission, Dr. Warren referred to peer-reviewed studies that

found transmission rates to be three to 25 times lower for those who are asymptomatic. He

maintained that rates of transmission from asymptomatic persons are low and do not

warrant being considered a significant contributor of transmission.

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[64] Dr. Warren took issue with the proposition that crowding is a source of infection. He

referred to a recent study which found that social distancing measures were effective in the

control of viral respiratory tract infections, but that “the actual evidence for avoiding

crowding by the general public for the control of viral respiratory tract infections is

negligible”: Affidavit of Dr. Warren, at para. 22. A 2019 review of non-pharmaceutical

public health measures for mitigating the risk and impact of epidemic and pandemic

influenza found that only three studies called for crown avoidance: Affidavit of Dr. Warren,

at para. 23. In all three studies, the quality of evidence was rated as very low. Two of those

studies were retrospective analyses of the 1918 pandemic, both published in 2007. Dr.

Warren concluded that: “while there is clear biological and epidemiological rationale for

avoiding crowding, there is an absence of high-quality evidence, such as randomized-

controlled trials, that prove the effectiveness of lockdown measures to avoid crowding in

particular groups or contexts, including churches”: Affidavit of Dr. Warren, at para. 25.

[65] Dr. Warren observed, at para. 28 of his affidavit, that outbreak data from Ontario showed

that “less than 1% of all outbreaks (23/4151) were attributable to places of worship. Less

than 1% of all outbreak cases (221/39774) are due to outbreaks at places of worship. Places

of worship account for only 0.1% (5/3460) of all outbreak associated hospitalizations, and

places of worship account for 0% (0/3681) of all outbreaks associated deaths”. Religious

gatherings are listed in the “other” category when grouping outbreaks and their sources;

this category accounts for less than one percent of all cases. In addition, cases related to

religious gatherings make up only a fraction of the “other” category, which means they

account for far less than one percent.

[66] Finally, Dr. Warren was firmly of the view that the risk of transmission of the virus in

outdoor settings is negligible. He referred to a comprehensive study from China, in which

only one outdoor outbreak involving two cases occurred out of 7,324 identified cases. The

reason for negligible outdoor transmission is that airflow outdoors rapidly dilutes any

SARS-CoV-2 virus to negligible amounts not considered to be infectious. He testified that

outdoor religious gatherings of short duration (less than 24 hours; no overnight component)

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should be considered safe based on the evidence. As long as physical distancing can be

maintained, outdoor religious gatherings should be considered safe.

b. Dr. Schabas

[67] Dr. Schabas aimed a critical eye at Ontario’s pandemic strategy. It was his view that the

steps taken to curb the spread of one disease have come at the expense of other forms of

well-being. Dr. Schabas noted the importance of both religious belief and practice to

mental and social well-being, concluding that measures that prevent religious activity cause

their own harm to health. Dr. Schabas argued that there is no strong evidence to indicate

that limiting the size of religious gatherings is a necessary or effective means of controlling

Covid-19. While the virus can spread at religious gatherings, the rate appears to be

negligible. A properly managed religious gathering in Canada would carry only a very

small risk of Covid-19 transmission. Dr. Schabas pointed to the lesser restrictions placed

on liquor stores and retail stores, arguing that Ontario should have used the same nuanced

approach for religious services.

[68] According to Dr. Schabas, pandemic lockdowns were imposed without any substantial

scientific foundation, and without any clear idea of any goals or objectives, other than a

“vague notion” of flattening the curve: Affidavit of Dr. Schabas, at para. 10. In his view,

Public Health relies heavily on mathematical models that are dependent on unreliable

inputs. For example, the models used an infection fatality rate of one percent, whereas

analysis based on seroprevalence studies shows a much lower infection fatality rate of 0.23

percent or less. The models used do not make testable predictions but rather produce a

range of values so broad that they cannot be disproven. These mathematical models have

a track record of erroneous predictions (e.g. with SARS, H5N1, and H1N1), and they

should not determine public health policy.

[69] In the view of Dr. Schabas, the previous plan formulated to address pandemic influenza

was a far better choice. That plan was predicated on two overarching principles: to

minimize the impact of death and illness, and to minimize disruption to normal life. Dr.

Schabas opined that Ontario’s response to Covid-19 abandoned both of these principles

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because it ignored all other causes of illness, disability, and death. He argued that contact

tracing, quarantine, entry and exit screening, and border closure were all “not

recommended in any circumstance”: Affidavit of Dr. Schabas, at para. 19. According to

Dr. Schabas, Statistics Canada confirmed that lockdowns correspond to substantial

increase in non-Covid-19 deaths.

[70] Dr. Schabas engaged in comparative analysis of mortality rates attributed to Covid-19

versus other causes, such as tobacco addiction. He observed that tobacco addictions

account for 40,000 preventable deaths every year, which is “about twice” the number of

Covid-19 deaths: Affidavit of Dr. Schabas, at para. 25. He also asserted that tobacco use

leads to a four to eight times greater premature mortality rate than Covid-19. The number

of deaths caused by Covid-19 – 25,000 at the time of his affidavit – was a small fraction of

the 300,000 deaths that occur in Canada on a yearly basis. With respect to mortality rate,

Dr. Schabas pointed to British Columbia, which had consistently less aggressive control

measures but a 55 percent lower mortality rate, and Quebec, which employed some of the

most stringent measures and had a death rate more than twice as high.

[71] In his reply affidavit, Dr. Schabas disputed the evidence given by Dr. Hodge on the concept

of burden and the precautionary principle. According to Dr. Schabas, the precautionary

principle is a pretext for saying that little or no evidence is required before instituting

coercive public health measures. He criticized the burden model for not considering the

consequences of intervention. Contrary to Drs. Hodge and McKeown, Dr. Schabas argued

that the health care system was not overburdened, and that at no point did Covid-19 patients

occupy ten percent of the 25,000 acute care hospital beds.

c. Dr. Chagla

[72] The moving parties also rely on the cross-examination of Dr. Chagla, an expert proffered

by Ontario.

[73] As it relates to the comparison between religious and retail settings, Dr. Chagla testified

that Covid-19 outbreaks at religious gatherings are far fewer than at workplaces. He

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acknowledged, however, that this is proportional given that workplaces had to be open

throughout the pandemic.

[74] Nevertheless, Dr. Chagla identified the risks associated with transmission in the workplace

for essential workers. First, he pointed out that the workers are indoor with poor ventilation

for eight or more hours per shift. Second, he asserted that workers socialize, talk, and

sometimes talk loudly in their workplaces. He also presumed that some people may sing,

breathe heavily, and hug coworkers while at work. Third, even where plexiglass has been

installed to minimize the risk of transmission, people often stand at the end of such barriers.

Finally, Dr. Chagla suggested that, if workers feel symptoms, they may be reluctant to test

themselves for Covid-19 due to financial pressures and the potential resulting need to miss

work.

[75] On the point of outdoor transmission, Dr. Chagla said that transmission is more likely

indoors than outdoors, and that 99.9 percent of cases are a result of indoor transmission.

He suggested that in the outdoors, the air is diluted and therefore contains less aerosols for

transmission. Outdoor activity is therefore generally safe, but that also varies depending on

the ability to physically distance outdoors. That said, Dr. Chagla acknowledged that

measures involving large shutdowns of the outdoors were not necessarily unreasonable.

Outdoor religious gatherings could be deemed safe, but only so long as attendees use

mitigation techniques to decrease the risk.

F. ISSUES

[76] This case raises the following questions:

1. Did the Ontario restrictions on the size of religious gatherings interfere with the

fundamental guarantee of freedom of religion in s. 2(a) of the Charter?

2. Did the restrictions interfere with other fundamental freedoms guaranteed in s. 2 of

the Charter?

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3. If there was interference with freedom of religion, or other freedoms guaranteed by

s. 2 of the Charter, are such limitations reasonable and demonstrably justified in a

free and democratic society under s. 1 of the Charter?

[77] I will deal with each of these in turn.

G. SECTION 2(a) OF THE CHARTER

1. Introduction

[78] The moving parties, along with ARPA, argue that the restrictions on indoor and outdoor

religious gatherings amounted to a substantial interference with the constitutional

guarantee of religious freedom. It is said that gathering in person, as a group, is

fundamental to religious practice, and that any restrictions on attendance result in a

substantial interference with the s. 2(a) guarantee.

[79] Ontario accepts the sincerity of the moving parties’ assertions that they must gather in

person to worship. Ontario acknowledges that limiting religious gatherings to ten persons

or less infringed s. 2(a) of the Charter. However, Ontario argues that other less stringent

restrictions, in place for the bulk of the pandemic, did not infringe the Charter because that

interference with religious activity was trivial and insubstantial.

2.

Whose rights are at stake?

[80] Two of the moving parties are churches – non-human institutions defined by religious

objectives. A preliminary question is whether the churches have standing to assert their

own claim to the guarantee of freedom of religion. On the one hand, a non-human entity

does not readily experience conscience and belief. On the other hand, an entity organized

for the sole purpose of promoting faith-based activity is a collective expression of religious

belief and practice.

[81] To date, the Supreme Court of Canada has refrained from ruling definitively on this

question. In Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1

S.C.R. 613 (“Loyola”), the Court considered whether a private Catholic high school could

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assert a claim to freedom of religion. Three members of the Court found that, as a religious

organization, the school could do so. In their concurring reasons, McLachlin C.J. and

Moldaver J. observed, at para. 91, that “[t]he communal character of religion means that

protecting the religious freedom of individuals requires protecting the religious freedom of

religious organizations, including religious educational bodies such as Loyola.” Abella J.,

writing for the majority of four, took a different view, at para. 34:

In this case Loyola, as an entity lawfully created to give effect to religious

belief and practice, was denied a statutory exemption from an otherwise

mandatory regulatory scheme. As the subject of the administrative

decision, Loyola is entitled to apply for judicial review and to argue that the

Minister failed to respect the values underlying the grant of her discretion

as part of its challenge of the merits of the decision. In my view, as a result,

it is not necessary to decide whether Loyola itself, as a corporation, enjoys

the benefit of s. 2(a) rights, since the Minister is bound in any event to

exercise her discretion in a way that respects the values underlying the

grant of her decision-making authority, including the Charter-protected

religious freedom of the members of the Loyola community who seek to offer

and wish to receive a Catholic education: Chamberlain v. Surrey School

District No. 36, [2002] 4 S.C.R. 710, at para. 71. [Emphasis added.]

[82] I need not decide in this case whether the churches, as religious but non-human entities,

have an independent claim under s. 2(a) of the Charter. Ontario acknowledged during

argument that the churches represent the interests of their human congregants. That is, the

churches, as institutions, do not have independent access to s. 2(a), but they do have

standing to raise the s. 2(a) rights of their human parishioners. I accept that

acknowledgement and will proceed on that basis.

[83] This is not to say that the collective nature of religious activity is beside the point. To the

contrary, the communal and collective character of religious activity is critical to the

claimants’ arguments. I will return to this point shortly.

3.

General Principles

[84] Section 2(a) of the Charter protects “the right to entertain such religious beliefs as a person

chooses, the right to declare religious beliefs openly and without fear of hindrance or

reprisal, and the right to manifest religious belief by worship and practice or by teaching

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and dissemination”: Big M, at p. 336; Ross v. New Brunswick School District No.

15, [1996] 1 S.C.R. 825, at para. 72; Syndicat Northcrest v. Amselem, 2004 SCC 47, [2004]

2 S.C.R. 551 (“Amselem”), at para. 40; Reference re Same-Sex Marriage, 2004 SCC 79,

[2004] 3 S.C.R. 698, at para. 57; Multani v. Commission scolaire Marguerite-Bourgeoys,

2006 SCC 6, [2006] 1 S.C.R. 256, at para. 32 (“Multani”); Bruker v. Marcovitz, 2007 SCC

54, [2007] 3 S.C.R. 607, at para. 71; Ktunaxa Nation v. British Columbia (Forests, Lands

and Natural Resource Operations), 2017 SCC 54, [2017] 2 S.C.R. 386, at para. 63.

[85] Within the pluralistic, multicultural society that is Canada, religious diversity is to be

cherished and promoted. Democratic values command respect for, and accommodation of,

a broad range of spiritual beliefs and practices. Respect for religious differences is the

touchstone of neutrality in a secular state. The aspiration is that “people of all groups

understand and tolerate each other”: Adler v. Ontario, [1996] 3 S.C.R. 609, at para. 212,

McLachlin J. dissenting in part. In Loyola, the Court affirmed, at para. 48, that “[a]

pluralist, multicultural democracy depends on the capacity of its citizens to engage in

thoughtful and inclusive forms of deliberation amidst, and enriched by,” different religious

worldviews and practices: see also Benjamin L. Berger, “Religious Diversity, Education,

and the ‘Crisis’ in State Neutrality” (2014) 29 C.J.L.S. 103, at p. 115.

[86] Freedom of religion embodies concepts of liberty, equality, autonomy, and the recognition

of human dignity. It contemplates the co-existence of spiritual and civil authority. It

recognizes that the human experience is enhanced by a recognition of “other truths, other

sources of competing worldviews, of normative and authoritative communities that are

profound sources of meaning in people’s lives that ought to be nurtured as a counter-

balance to state authority”: Bruce Ryder, “State Neutrality and Freedom of Conscience and

Religion” (2005) 29 S.C.L.R. (2d); Professor Benjamin Berger has posited that the special

protection given to freedom of religion “flows in part from a recognition that religions asks

the kinds of questions and affords forms of answer to which the law is neither inclined nor

equipped to respond”: Benjamin L. Berger, “Key Theoretical Issues in the Interaction of

Law and Religion: A guide for the Perplexed” (2011) 19:2 Constitutional Forum 41 at p.

49.

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[87]

It follows that religious adherence is more than a matter of choice or preference. It is a

fulcrum of individual identity, a framework through which to perceive and understand the

world and one’s place in it. Religion defines human relationships with corporeal and

transcendent realities; it informs perceptions of oneself, humankind, nature, and in some

cases, a higher or different order of being: see R. v. Edwards Books and Art Ltd., [1986] 2

S.C.R. 713, at p. 759; Big M, at p. 346; Amselem, at p. 41; Alberta v. Hutterian Brethren

of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567 (“Hutterian”), at para. 32. By

protecting non-belief, s. 2(a) is “also a precious asset for atheists, agnostics, sceptics and

the unconcerned:”: Loyola, at para. 45, citing Kokkinakis v. Greece, judgment of 25 May

1993, Series A No. 260-A.

[88] By way of illustration, the affidavits filed by the claimants in this case attest to the vitality

and centrality of their religious beliefs. They also speak to the importance of religion

during periods of crisis, fear, and uncertainty. I accept the claimants’ assertions that

involvement in faith-based community can serve as an antidote to feelings of isolation,

despair, and anxiety, and that this is part of being a church. The state does not hold a

monopoly on helping people cope with the stress of a pandemic. Religious institutions are

well equipped to offer non-medical, psychological, and spiritual guidance. Institutional

pluralism recognizes the complementary roles assumed by church and state and calls for

mutual respect between their spheres of authority.

[89] Sometimes, however, these roles conflict with one another. Religious freedom is not

absolute. It may have to yield in the face of competing rights and interests. The

perspective of a religious claimant, while important, “must be considered in the context of

a multicultural, multi-religious society where the duty of state authorities to legislate for

the general good inevitably produces conflicts with individual beliefs”: Hutterian, at para.

90. Thus, the Supreme Court has held that “the freedom to hold beliefs is broader than the

freedom to act on them”: see Trinity Western University v. British Columbia College of

Teachers, 2001 SCC 31, [2001] 1 S.C.R. 772, at para. 36; B.(R.) v. Children’s Aid Society

of Metropolitan Toronto, [1995] 1 S.C.R. 315, at paras. 107 and 226; see

also Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11, [2013] 1

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S.C.R. 467, at para. 154; Hutterian, at para. 90. As Iacobucci J. noted, writing for the

majority of the Supreme Court in Amselem, at para. 61:

In this respect, it should be emphasized that not every action will become

summarily unassailable and receive automatic protection under the banner

of freedom of religion. No right, including freedom of religion, is absolute: see,

e.g., Big M, supra; P. (D.) v. S. (C.), [1993] 4 S.C.R. 141, at p. 182; B. (R.) v.

Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315, at para.

226; Trinity Western University v. British Columbia College of Teachers, [2001] 1

S.C.R. 772, 2001 SCC 31, at para. 29. This is so because we live in a society of

individuals in which we must always take the rights of others into account. In the

words of John Stuart Mill: “The only freedom which deserves the name, is that of

pursuing our own good in our own way, so long as we do not attempt to deprive

others of theirs or impede their efforts to obtain it”: On Liberty and Considerations

on Representative Government (1946), at p. 11. In the real world, oftentimes the

fundamental rights of individuals will conflict or compete with one another.

4.

Limits on Religious Freedom

[90] Limits on religious freedom can arise at one of two stages: a) under s. 2(a) itself; and b)

under s. 1 of the Charter. Where s. 2(a) is infringed, the government may seek to justify

the limit under s. 1 of the Charter. I will come to deal with s. 1 in due course. What is

relevant for present purposes are the limitations built into s. 2(a) itself. Section 2(a) does

not, by its language, expressly qualify the scope of the guarantee. However, the Supreme

Court of Canada has held that not every limit on religion will run afoul of the Constitution.

There must be a functional and qualitative assessment of the extent to which religious

freedom is actually threatened or constrained. A law that merely creates an inconvenience

for, or imposes a cost on, religious adherents will not make out an infringement. Nor will

a burden that is merely trivial or insubstantial. The Supreme Court of Canada put this very

plainly in Hutterian, at para. 32:

An infringement of s. 2(a) of the Charter will be made out where: (1) the

claimant sincerely believes in a belief or practice that has a nexus with

religion; and (2) the impugned measure interferes with the claimant’s

ability to act in accordance with his or her religious beliefs in a manner that

is more than trivial or insubstantial: Syndicat Northcrest v. Amselem, 2004

SCC 47, [2004] 2 S.C.R. 551, and Multani. “Trivial or insubstantial”

interference is interference that does not threaten actual religious beliefs or

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conduct. As explained in R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R.

713, at p. 759, per Dickson C.J.:

The purpose of s. 2(a) is to ensure that society does not

interfere with profoundly personal beliefs that govern one’s

perception of oneself, humankind, nature, and, in some

cases, a higher or different order of being. These beliefs, in

turn, govern one’s conduct and practices. The Constitution

shelters individuals and groups only to the extent that

religious beliefs or conduct might reasonably or actually be

threatened. For a state-imposed cost or burden to be

proscribed by s. 2(a) it must be capable of interfering with

religious belief or practice. In short, legislative or

administrative action which increases the cost of practising

or otherwise manifesting religious beliefs is not prohibited if

the burden is trivial or insubstantial: see, on this point, R. v.

Jones, [1986] 2 S.C.R. 284, per Wilson J. at p. 314.

[Emphasis added.]

[91]

At para. 95, the Court further explained that:

However, in many cases, the incidental effects of a law passed for the

general good on a particular religious practice may be less serious. The

limit may impose costs on the religious practitioner in terms of money,

tradition or inconvenience. However, these costs may still leave the

adherent with a meaningful choice concerning the religious practice at

issue. The Charter guarantees freedom of religion, but does not indemnify

practitioners against all costs incident to the practice of religion. Many

religious practices entail costs which society reasonably expects the

adherents to bear. The inability to access conditional benefits or privileges

conferred by law may be among such costs. A limit on the right that exacts

a cost but nevertheless leaves the adherent with a meaningful choice about

the religious practice at issue will be less serious than a limit that effectively

deprives the adherent of such choice.

[92] The seriousness of a particular limit must be judged on a case-by-case basis: Hutterian, at

para. 91. The question is whether the limit leaves the adherent with a meaningful choice to

follow his or her religious beliefs and practices. In Hutterian, at para. 89, the Court

contemplated that religious beliefs fall along a spectrum of sorts, with some beliefs being

of central sacred importance, and others being more akin to optional matters of personal

choice: “Between these two extremes lies a vast array of beliefs and practices, more

important to some adherents than to others.”

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[93] At issue in Hutterian was a requirement that photographs be taken for driver’s licences in

the province of Alberta. This regulatory precaution was aimed at preventing fraud and

identity theft. However, it posed an obstacle for the claimants, who believed that the

Second Commandment prohibited them from willingly allowing a photograph to be taken

of their likeness. They led evidence asserting that if members could not obtain driver’s

licences, the viability of their communal lifestyle would be threatened. Yet, to be

photographed for a licence offended sincerely held religious beliefs.

[94] The constitutional analysis in Hutterian was conducted under s. 1 of the Charter, because

the parties had conceded an infringement of s. 2(a). Nonetheless, the Court’s comments

readily transfer to the s. 2(a) framework, as articulated in that case. The Court found that

the photograph requirement imposed a cost on religious adherence but did not substantially

interfere with religious adherence. It did not deprive adherents of a meaningful choice to

follow or not follow the edicts of their religion. If they chose not to have their photo taken,

they would not be able to obtain driver’s licences. However, they could make alternate

arrangements for highway transport. This cost did not seriously affect the right to pursue

their religion, even though it would “impose some financial cost on the community and

depart from their tradition of being self-sufficient in terms of transport”: Hutterian, at para.

99.

5.

Application to this case

[95] Ontario argues that this case is like Hutterian. It is said that religious gathering limits did

not deprive claimants of a meaningful choice to follow or not follow the edicts of their

religion. If only small groups could attend a service, the churches could hold multiple

services to accommodate all parishioners. The time and expense involved in holding

multiple services would represent a cost or inconvenience, but, Ontario asserts, like the

photo requirement in Hutterian, it would not interfere with religious belief and practice.

Ontario acknowledges that the most restrictive gathering limits – those limiting attendance

to ten people indoors and outdoors – did infringe s. 2(a), but it notes that those restrictions

were only in effect for brief periods. The other limits, restricting attendance to 15, 25, or

30 percent capacity, imposed a cost but not a substantial burden on religious activity.

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[96] I find this case to be very different than Hutterian. In Hutterian, the cost imposed by the

law was of a secular nature. To adhere to the religion was to forego the requirements for a

valid driver’s licence. The effect of religious belief was to require alternate forms of

transport. While this had the potential to breach the insularity of the community, the cost

of not driving was extraneous to the religious experience itself. Persons faced with a choice

between their religious tenets and the right to drive were free to choose their religious

tenets. There are any number of analogous costs flowing from religious adherence. Where

religious practice conflicts with another activity, the answer may be to give up the other

activity, that being the cost of the religious beliefs.

[97] In this case, holding multiple services might involve expenditure of time, effort, and

money. However, beyond those secular considerations, multiple services would also alter

the character of the religious experience itself. Gathering restrictions prevent congregants

from gathering as a single group in one place, at one time, for communal worship. This

burden impacts directly and significantly on the ability of the churches and their

congregants to manifest and practice their religious beliefs.

[98] This point was made by Pastor Hildebrant and Rev. Reaume in their affidavits, which spoke

of the importance of in-person worship. As they explained, where there is no physical

gathering, there is no church. The concept of church implies all people together. At para.

61 of his affidavit, Pastor Hildebrandt testified that “the definition of ‘church’ requires us

to gather in person, and that the Law of God demands that we gather at least weekly”. Rev.

Reaume offered similar evidence, using the body as a metaphor for the church as a whole.

As he put it at paras. 90-91 of his affidavit:

To cease meeting together for worship at least weekly is to be a disobedient

Christian. Scripture describes the church as a body with many parts. As a

human body cannot exist without all its parts fastened together so the church

cannot exist without all its people together. Saint Paul wrote, “Now you are

the body of Christ and individually members of it” (1 Corinthians 12:27).

Each individual is a valuable part of the church, and the church as a whole

needs each individual. A church that does not gather is like a body with its

parts scattered across a city. A body exists as parts together, and the church

exists as Christians together.

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The church must be together to fulfill its mission because its mission

depends on in-person togetherness and physical presence. The Scriptures

command the church to partake of the Lord’s Supper together (1 Corinthians

11:17-34). …

[99] Ontario has conceded the sincerity of the beliefs asserted by the claimants, though it takes

issue with the notion that all congregants need to be together at the same time. I have no

reason to doubt the sincerity of the claimants’ beliefs. It is not for me to dictate to the

claimants how they should observe the edicts of the faith. On their evidence, the religious

ideal is one in which the entire congregation can join together in prayer.

[100] This is not a novel proposition. Canadian courts have recognized that the group is a critical

medium for the observance of individual beliefs. While freedom of religion is conferred

upon individuals, it is most often expressed through association and activity with others.

Religion is, by its very nature, a collective and communal phenomenon. As LeBel J.

(dissenting) put it in Hutterian, at para. 182: “Religion is about religious beliefs, but also

about religious relationships.” Similar observations were offered by the majority in Law

Society of British Columbia v. Trinity Western University, 2018 SCC 32, [2018] 2 S.C.R.

293 (“Trinity Western”):

Although this Court’s interpretation of freedom of religion reflects the

notion of personal choice and individual autonomy and freedom, religion is

about both religious beliefs and religious relationships (Amselem, at

para. 40; Loyola, at para. 59, quoting Justice LeBel in Hutterian Brethren,

at para. 182). The protection of individual religious rights under s. 2(a)

must therefore account for the socially embedded nature of religious belief,

as well as the “deep linkages between this belief and its manifestation

through communal institutions and traditions” (Loyola, at para. 60). In other

words, religious freedom is individual, but also “profoundly

communitarian” (Hutterian Brethren, at para. 89). The ability of religious

adherents to come together and create cohesive communities of belief and

practice is an important aspect of religious freedom under s. 2(a).

[101] In Loyola, at para. 60, Abella J. noted that:

Religious freedom under the Charter must therefore account for the socially

embedded nature of religious belief, and the deep linkages between this

belief and its manifestation through communal institutions and traditions:

Victor Muñiz-Fraticelli and Lawrence David, “Whence a nexus with

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religion? Religious institutionalism in a Canadian context”, forthcoming,

at p. 2; Dieter Grimm, “Conflicts Between General Laws and Religious

Norms” (2009), 30 Cardozo L. Rev. 2369, at p. 2373. To fail to recognize

this dimension of religious belief would be to “effectively denigrate those

religions in which more emphasis is placed on communal worship or other

communal religious activities”: Dwight Newman, Community and

Collective Rights: A Theoretical Framework for Rights held by

Groups (2011), at p. 78. See also Will Kymlicka, Multicultural Citizenship:

A Liberal Theory of Minority Rights (1995), at p. 105.

[102] In that same case, McLachlin C.J. observed that religions are necessarily collective

endeavours and that “the individual and collective aspects of freedom of religion are

indissolubly intertwined”: Loyola, at para. 94.

[103] It is the collective expression of belief that was threatened in this case. On the pastors’

evidence, the whole of the congregation is more powerful than its constituent parts.

Multiple services would allow some religious activity to continue – just like on-line or

drive in services – but they would not replicate what is lost: the ability to join as a single

group united in worship. Unlike the situation in Hutterian, adherents could not simply

could choose religious practice over a conflicting secular option.

[104] This is because, for these claimants, there is a qualitative difference between a small and a

large religious service. The synergy of the religious service fuels a collective

consciousness. As noted by ARPA in its factum, at para. 27: “Scripture also teaches that

singing in corporate worship is ‘vertical’ and ‘horizontal’, i.e. that by singing together,

believers not only praise God (vertical) but also encourage one another (horizontal),

inspiring and uplifting one another ‘with psalms, hymns and spiritual songs’.” The

experience of 200 people united in song and prayer will generate a different spiritual

resonance than 20 people united in song and prayer.

[105] In this respect, a church service is different than other public gatherings, such as live theatre

performance. If only a small group can attend the theatre, the play can be performed on

multiple occasions to smaller audiences. This does not change the play. It does not change

the experience of the actors on stage, or the audience in the gallery. Religious services do

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not draw the same bright line between the stage and the audience. The observers perform

and the performers observe in an interactive and symbiotic fashion.

[106] Therefore, I see the present case as distinguishable from Hutterian, and more akin to the

case of Loyala, where the Court, in finding an infringement of s. 2(a), observed, at para.

61:

In S.L., this Court held that the imposition of the ERC Program in public

schools did not impose limits on the religious freedom of individual

students and parents. This case, however, can be distinguished

from S.L. because Loyola is a private religious institution created to support

the collective practice of Catholicism and the transmission of the Catholic

faith. The question is not only how Loyola is required to teach

about other religions, but also how it is asked to teach about the very faith

that animates its character and the comparative relationship between

Catholicism and other faiths. The Minister’s decision therefore

demonstrably interferes with the manner in which the members of an

institution formed for the very purpose of transmitting Catholicism, can

teach and learn about the Catholic faith. This engages religious freedom

protected under s. 2(a) of the Charter. [Emphasis added.]

[107] The facts of Loyola are obviously very different from this case. What I draw from it is

that s. 2(a) will be infringed when laws or ministerial decisions affect the ability of a

religious institution to engage in the very activity that animates and defines its religious

character. That is the situation here. As held by Hinkson C.J. in Beaudoin, at para. 199:

“Religious bodies have a sphere of independent spiritual authority, at the core of which is

the authority to determine their own membership, doctrines, and religious practices,

including manner of worship.” It is that authority that was constrained by religious

gathering limits.

[108] Ontario argues that, even if this be so on a theoretical level, the claimants have failed to

discharge the evidentiary burden to establish an infringement. It is said that the claimants

have not expressly outlined why multiple services would present more than a trivial cost.

[109] It is true that the claimants did not speak of this in their evidence. However, they may not

have known that this would be Ontario’s position. Ontario did not ask claimants about this

during cross-examination and only raised the suggestion of multiple services in its factum,

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which was filed after the evidence had crystallized. For its part, Ontario says that it did not

cross-examine about multiple services because it did not know that the claimants would

argue that all congregants must be together.

[110] There is a chicken and egg quality to this debate. Did the claimants not know Ontario’s

position, or did Ontario not know the claimants’ position, and how does either scenario

impact on issues of proof? I am satisfied that the evidence that was led by the claimants,

including the affidavit of Rev. Reaume, established the importance of congregants to gather

together as one. One can logically infer from this that multiple services would not offer an

equivalent means of religious expression. The question is not whether there were any

conceivable alternatives for religious expression. There were. The question is whether

those alternatives would effectively achieve religious objectives. The claimants say no,

and I defer to them on that point.

[111] I will offer one final comment on this issue. Ontario has conceded that the strictest limits

on gatherings, those that permitted no more than ten people indoors and outdoors, infringed

s. 2(a) of the Charter. This was a reasonable and fair concession, for which Ontario is to

be commended. The difficulty lies in the distinction between what is and is not conceded.

If limiting attendance to ten people violates s. 2(a), it is not clear why limiting attendance

to 15 percent of capacity does not also violate s. 2(a).

[112] I am not persuaded that the s. 2(a) analysis hinges on numerical considerations. It is not

for the court to dictate to the claimants how many attendees should suffice for a meaningful

spiritual experience. Nor should the court micro-measure the religious significance of 40

v. 100 v. 400 attendees. To do so would itself seem contrary to the letter and spirit of the

s. 2(a) guarantee. The manner and practice of worship is at the core of religious freedom,

and the authority to determine such matters lies with the claimants.

[113] Therefore, for the above reasons, I conclude that the numerical or percentage capacity

limits imposed on religious gatherings – either indoors or outdoors – did infringe s. 2(a) of

the Charter. I find that the existence of alternate methods for the delivery of religious

services does not attenuate the infringement, given the religious significance of the

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collective in person experience. Having said that, the alternate modes of delivery are not

irrelevant and will figure into the calculus under s. 1 of the Charter. I will turn to that

shortly, after addressing the other fundamental guarantees enshrined in s. 2 of the Charter.

H. OTHER FUNDAMENTAL FREEDOMS

[114] The moving parties, together with ARPA, argue that this case is not exclusively about

freedom of religion. It is said to engage each of the distinct guarantees in s. 2 of the

Charter: freedom of religion; freedom of expression; freedom of assembly; and freedom

of association. It is said that the religious gathering limits infringe all four guarantees,

resulting in egregious constitutional harm.

[115] I agree with Ontario that, in the circumstances of this case, it is neither necessary nor

desirable to conduct separate analyses under subsections (b), (c), and (d). The interests

protected by those subsections are, in this case, wholly subsumed by the s. 2(a) analysis.

My finding that s. 2(a) has been infringed has accounted for the various manifestations of

religious freedom: the freedom to engage in religious expression; the freedom to assemble

in religious unity; and the freedom to associate with those who share faith-based ideals.

There is no value added by repeating or repackaging the analysis under different

constitutional headings. This case is like Trinity Western, in which “the religious freedom

claim [was] sufficient to account for the expressive, associational, and equality rights of

TWU’s community members in the analysis”: Trinity Western, at para. 77. Like this case,

in Trinity Western, the factual matrix underpinning the various Charter claims was largely

indistinguishable.

[116] There may well be cases in which ss. 2(b), 2(c), or 2(d) add value to the analysis. This not

one of them.

[117] Nor, contrary to the submissions of the moving parties and ARPA, is this a case involving

multiple breaches. ARPA drew upon criminal caselaw dealing with admissibility of

unconstitutionally obtained evidence under s. 24(2) of the Charter. Violations are more

serious when they represent a pattern of misconduct by police, resulting in multiple

violations. However, such cases are invariably concerned with multiple, distinct acts. For

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example, police may conduct an arbitrary stop, followed by an unreasonable search, which

then leads to a statement taken in the absence of rights to counsel. Three separate acts have

resulted in three separate breaches. That is very different than a case where, as here, a

single compendious act – the imposition of religious gathering limits – impinges on

multiple guarantees because they are interrelated. This is not to say that the infringement

here is minor or insignificant. It is only to say that its gravity should not be inflated by an

artificial tally of provisions.

I. SECTION 1 OF THE CHARTER

[118] Ontario argues that any infringement of fundamental freedoms is demonstrably justified in

a free and democratic society. It is said that the regulations were in aid of a pressing and

substantial objective, namely, the reduction of Covid-19 transmission at in-person religious

gatherings to preserve hospital and ICU capacity and save lives. Ontario submits that the

impugned laws were rationally connected to that objective, were minimally intrusive, and

were proportionate. Ontario posits that the salutary effects of the measures on public health

far outweigh the deleterious impact on freedom of religion.

[119] The moving parties disagree, arguing that the measures were arbitrary, overbroad, and

disproportionate. They offer the following submissions:

1. There can be no justification for any limit on outdoor religious gatherings, as the

risk of transmission in the outdoors is, and has been, seen as negligible.

2. On the question of minimal impairment, it is said that restrictions on religious

gatherings were more stringent than those imposed on essential retail outlets. If

retail outlets could accommodate more people, religious gatherings should have

had the same the same entitlement. It is said that this disparity belies Ontario’s

claim of minimal impairment.

3. Finally, the moving parties argue that the salutary effects of the restrictions are

outweighed by the deleterious impact on constitutionally protected activity.

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[120] I agree with the claimants that the Constitution does not take a holiday in times of crisis.

However, Ontario did not disregard the impact of measures on religious freedom; nor did

it opt for the simplest and most draconian line of pandemic defence – blanket shutdowns

for extended periods. The measures imposed by Ontario were carefully calibrated and

recalibrated on a regular basis to reflect the effects of variants of concern, vaccination rates,

and the demand on hospitals and ICUs. These measures were rationally connected to a

pressing and substantial objective and were proportionate in their effect. They are properly

upheld under s. 1 of the Charter.

[121] I will explain why in the reasons that follow.

1. Nature of Section 1

[122] In R. v. Oakes, [1986] 1 S.C.R. 103, at para. 64, Dickson C.J. identified the principles

essential to a free and democratic society as “accommodation of a wide variety of beliefs,

respect for cultural and group identity, and faith in social and political institutions which

enhance the participation of individuals and groups in society.” He went on to observe:

The broader societal context in which the law operates must inform

the

s. 1 justification analysis. A law’s constitutionality under s. 1 of

the Charter is determined, not by whether it is responsive to the unique

needs of every individual claimant, but rather by whether its infringement

of Charter rights is directed at an important objective and is proportionate

in its overall impact. While the law’s impact on the individual claimants is

undoubtedly a significant factor for the court to consider in determining

whether the infringement is justified, the court’s ultimate perspective is

societal. The question the court must answer is whether

the Charter infringement is justifiable in a free and democratic society, not

whether a more advantageous arrangement for a particular claimant could

be envisioned.

2. Context and Deference

[123] The s. 1 analysis is highly sensitive to context. Context defines the degree of judicial

deference to be shown when assessing government decision making. Deference falls along

a spectrum. Some degree of deference will usually be called for under s. 1. The degree of

deference will vary with the complexity of the decision under review.

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[124] The moving parties argue against deference in this case. They argue that the deference

shown in other cases dealing with Covid-19 restrictions has no place here. In Gateway and

Beaudoin, the restrictions imposed by public health orders were issued by medical experts.

Because the orders were administrative decisions, the judicial review of the orders was

governed by the case of Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R.

395 (“Doré”). Doré recognizes the importance of judicial deference to administrative

bodies and decision makers who have expertise in the subject matter under consideration.

It is said by the moving parties that no such deference attaches here because the decisions

were made by government officials rather than medical experts.

[125] I agree that Doré does not apply in this case. Ontario was guided by expert medical

opinion, but the orders were issued by the government, not medical experts. The limits

were given the force of law in statutory and regulatory enactment. Therefore, this case

engages the test in Oakes, rather than the test in Doré. It does not follow, however, that

deference is suspended. The Oakes test sees a very clear role for deference in the s. 1

calculus, with quantum depending on the juridical context.

[126] For example, criminal enactments tend to attract less deference because, in that context,

the state is the singular antagonist of the individual. Greater deference is owed where

public officials are dealing with a complex social problem, balancing the interests of

competing groups, or seeking to protect a vulnerable segment of the population. In

Hutterian, the impugned law, requiring photographs for driver’s licences, was aimed at

reducing licence fraud and identity theft. This called for an elevated level of deference, as

the law was “part of a complex regulatory scheme and [was] aimed at an emerging and

challenging problem”: Hutterian, at para. 56.

[127] This case calls for even greater deference to government decision making. Public officials

were faced with an unprecedented public health emergency that foretold of serious illness

and death. Ontario was called upon to protect public health, while respecting a host of

other interests and considerations. Restrictive measures aimed at curbing transmission of

the virus would necessarily impact on social, commercial, and religious activities. The

task at hand called for a careful balancing of competing considerations, informed by an

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evolving body medical and scientific opinion. As put by Ontario in its factum, at para. 82,

the government was required to “balance risks and benefits that disproportionately impact

different sectors of Ontario’s diverse population, including seniors and others with elevated

health risks, all within the context of evolving research and knowledge about COVID-19

and a virus that has continued to evolve to produce new more transmissible [variants of

concern].”

[128] It is frankly difficult to imagine a more compelling and challenging equation. Reasonable

people may disagree on precisely where the balance should be struck. Just as the claimants

say that limits were too restrictive, others have complained that they were not restrictive

enough. The question of what is “just right” will, to some extent, lie in the eye of the

beholder. This mix of conflicting interests and perspectives, centered on a tangible threat

to public health, is a textbook recipe for deferential review. As it was put by Joyal C.J. in

Gateway, at para. 292, the court must “be guided not only by the rigours of the existing

legal tests, but as well, by a requisite judicial humility that comes from acknowledging that

courts do not have the specialized expertise to casually second guess the decisions of public

health officials, which decisions are otherwise supported in the evidence.”

[129] Finally, I share the wisdom imparted by the United States Supreme Court in a similar

context (South Bay United Pentecostal Church et al. v. Gavin Newsom, Governor of

California, et al., 590 U.S. (2020), cited in Gateway, at para. 283):

The precise question of when restrictions on particular social activities should be

lifted during the pandemic is a dynamic and fact-intensive matter subject to

reasonable disagreement. Our Constitution principally entrusts “[t]he safety and the

health of the people” to the politically accountable officials of the States “to guard

and protect.” Jacobson v. Massachusetts, 197 U. S. 11, 38 (1905). When those

officials “undertake [ ] to act in areas fraught with medical and scientific

uncertainties,” their latitude “must be especially broad.” Marshall v. United States,

414 U. S. 417, 427 (1974). Where those broad limits are not exceeded, they should

not be subject to second-guessing by an “unelected federal judiciary,” which lacks

the background, competence, and expertise to assess public health and is not

accountable to the people. See Garcia v. San Antonio Metropolitan Transit

Authority, 469 U. S. 528, 545 (1985).

[130] With that, I will turn to the constituent elements of the Oakes test.

Page: 47

3. Pressing and Substantial Objective

[131] Ontario asserts that the objective of religious gathering restrictions was to reduce Covid-

19 transmission and thus hospitalization and death, both to mitigate threats to the integrity

of health care and to minimize serious illness and overall deaths through appropriate

management of Ontario’s health system.

[132] It is difficult to quarrel with the importance of these objectives. It borders on trite to observe

that human life is sacred, and that public health and safety is important. Of similar import

is the viability of the health care system relied upon by all residents of the province. Not

surprisingly, courts across Canada have held that “containing the spread of the virus and

the protection of public health is a legitimate objective that can support limits on Charter

rights under s. 1”: Beaudoin, at para. 224.

[133] How broadly should the objective be defined? The laws that are challenged impose limits

on religious gatherings. However, these restrictions formed part of a broader prevention

strategy. Each sphere of restriction contributed to the overarching objective of protecting

the life and health of people in Ontario. Therefore, while this case focusses on religious

gathering limits, the limits must be understood as operating within a comprehensive

regulatory framework.

[134] The moving parties accept Ontario’s stated objective when it comes to restrictions on

indoor gatherings. It is argued, however, that, the objective is not legitimately connected

to outdoor gatherings. The moving parties contend that, on the evidence, there is virtually

no risk of transmission of the virus at outdoor gatherings. Hence, the objective of

preventing risk in that setting is not pressing and substantial, as it is not important to prevent

something that will not happen. I understand that argument, but do not see it as arising at

the pressing and substantial stage of the Oakes test. It could be seen as bearing on rational

connection, but it has more traction at the stage of minimal impairment, which is where I

will address it.

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4. Rational Connection

[135] To establish a rational connection, the government “must show a causal connection

between the infringement and the benefit sought on the basis of reason or logic”: RJR-

MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, at para. 153. The

rational connection requirement is aimed at preventing limits being imposed on rights

arbitrarily. The government must show that it is reasonable to suppose that the limit may

further the goal, not that it will do so: see Hutterian, at para. 48.

[136] The burden on government at this stage is not particularly demanding. It suffices to show

a logical nexus between the objective sought and means chosen to attain it. That nexus is

readily established here. Because Covid-19 is transmitted from person to person,

restricting person-to-person contact logically reduces the risk of transmission. The

connection between religious gathering restrictions and the objective is fortified by

consideration of the activities at religious services. Infectious droplets are more likely to

pass from person to person when there is singing, chanting, and congregating with others

for a prolonged period. Finally, the highly transmissible character of Covid-19 means that

the infection of one person at a religious gathering can lead to the infection of many other

individuals in the community. Preventing infection in one place impacts the rate of

infection elsewhere in the community.

[137] The moving parties argue that Ontario must, at this stage of the analysis, prove, with direct

scientific evidence, that capacity restrictions “actually do reduce the spread of COVID”:

Factum of the Moving Parties, at para. 68. This overstates the burden, certainly as it relates

to the rational connection test, but also as it relates to the overarching question of

proportionality. I will return to this issue when balancing salutary benefits and deleterious

effects. For now, it will suffice to say that the burden imposed on Ontario must not be one

that is impossible to meet.

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5. Minimal Impairment

[138] The minimal impairment test is perhaps the most exacting segment of the Oakes test – the

place where many laws will falter. Deference is particularly animated at this stage of the

analysis.

a. What does minimal impairment mean?

[139] It has long been understood that minimal impairment does not literally translate into the

least intrusive choice imaginable: see Canada (Attorney General) v. JTI-Macdonald Corp.,

2007 SCC 30, [2007] 2 S.C.R. 610, at para. 41 (“JTI”) at p. 631 Complex problems may

be addressed in a variety of different ways, with no certainty as to which will be the most

effective. The operative question is whether the measures chosen by government fall

within the range of reasonable alternatives. Faced with the pandemic, Ontario was not

required to choose the least ambitious means of protecting the public. Nor are the

restrictions overbroad simply because Ontario could have chosen from other alternatives.

[140] As held in JTI, at para. 43:

There may be many ways to approach a particular problem, and no certainty

as to which will be the most effective. It may, in the calm of the courtroom,

be possible to imagine a solution that impairs the right at stake less than the

solution Parliament has adopted. But one must also ask whether the

alternative would be reasonably effective when weighed against the means

chosen by Parliament. To complicate matters, a particular legislative

regime may have a number of goals and impairing a right minimally in the

furtherance of one particular goal may inhibit achieving another

goal. Crafting legislative solutions to complex problems is necessarily a

complex task. It is a task that requires weighing and balancing. For this

reason, this Court has held that on complex social issues, the minimal

impairment requirement is met if Parliament has chosen one of several

reasonable alternatives: R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R.

713; Irwin Toy.

[141] In Hutterian, it was put this way at para. 55:

I hasten to add that in considering whether the government’s objective could be

achieved by other less drastic means, the court need not be satisfied that the

alternative would satisfy the objectdive to exactly the same extent or degree as the

impugned measure. In other words, the court should not accept an unrealistically

Page: 50

exacting or precise formulation of the government’s objective which would

effectively immunize the law from scrutiny at the minimal impairment stage. The

requirement for an “equally effective” alternative measure in the passage from RJR-

MacDonald, quoted above, should not be taken to an impractical extreme. It

includes alternative measures that give sufficient protection, in all the

circumstances, to the government’s goal: Charkaoui v. Canada (Citizenship and

Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350. While the government is entitled

to deference in formulating its objective, that deference is not blind or absolute. The

test at the minimum impairment stage is whether there is an alternative, less drastic

means of achieving the objective in a real and substantial manner. As I will explain,

in my view the record in this case discloses no such alternative.

b. The standard is not one of scientific certainty

[142] The moving parties argue that there is no scientific basis for the measure employed to curb

the impact of the pandemic. It is said that Covid-19 is largely comparable to influenza,

which also claims many lives each year. The moving parties argue, in essence, that Ontario

overreacted to the pandemic, imposing measures that were far more restrictive than was

dictated by science. As noted above, the moving parties’ medical experts saw Covid-19

rather differently than did Ontario’s experts.

[143] How does that bear on the constitutional analysis? I have already observed that it is not

my task to mediate or resolve conflicting views about Covid-19. Nor is the court to play

“Monday morning quarterback” when assessing the science behind Ontario’s decisions. I

agree with Ontario that “government decisions taken on the basis of imperfect information

should not be undermined later with the benefit of hindsight”.

[144] Moreover, Ontario is not required to justify its choices on a standard of scientific certainty.

That would set an impossible burden, particularly where, as here, the social problem defies

scientific consensus. “The bar of constitutionality must not be set so high that responsible,

creative solutions to difficult problems would be threatened”: see Hutterian, at para. 37. I

agree with Burrage J. in Taylor at para. 411 that: “given the emergent and rapidly evolving

developments, the time for analyzing evidence shrinks, all the more so when the margin

for error relates to serious illness and/or death.”

[145] It is here that the precautionary principle is engaged. Conceived in connection with

climate change, this principle is a key factor in matters of public health. It recognizes that,

Page: 51

where there are threats of serious, irreversible damage, lack of full scientific certainty is

not a reason to postpone harm reduction strategies. To wait for certainty is to wait too

long. Clearly, Ontario was not required to wait for scientific unanimity on the properties

of the pandemic before taking steps to prevent illness and death. We would still be waiting

for that chimeric marker were it the catalyst for action.

[146] I found the evidence of Dr. McKeown and Dr. Hodge to be the most informative in

explaining the challenges faced by those with responsibility for public health decision

making. Even the moving parties’ expert, Dr. Schabas, acknowledged that the science of

Covid-19 has often been “complex and uncertain” and is “constantly evolving”. He

acknowledged that “public health practitioners often don’t have the luxury of waiting for

science to solidify before they recommend action” because if “public health measures are

taken too slowly disease may spread and you may need even more stringent measures to

regain control”: Transcript of Cross-examination of Dr. Schabas, at para. 31. The threat

of harm posed by the pandemic required that Ontario act on the best scientific information

available at each variable point in time. A precautionary stance was favoured over a “wait

and see” approach, lest lives be lost in the interim.

[147] This is the backdrop for consideration of restrictions on outdoor gatherings, and the

comparison of restrictions imposed in religious and retail settings.

c. Risk in Outdoor Settings

[148] During brief periods, religious gathering restrictions were the same for indoor and outdoor

services, despite the recognition that the risk of transmission is far lower in outdoor

settings. The moving parties argue that this is an example of overbreadth. It is said that,

on the evidence presented, there is no justification for any gathering limits outdoors, as the

risk outdoors is negligible at best. On this basis, it is said that the restrictions cannot be

minimally impairing.

[149] I do not see this as a fair characterization of the evidence in this case. It is true that all

experts opined that the risk of transmission outdoors was lower than the risk of

transmission indoors. However, Ontario’s experts contended that there was nonetheless a

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risk outdoors, particularly if other precautions such as physical distancing were not

respected, and high-risk activities such as singing and loud prayer were taking place.

[150] As noted above, Ontario did not need to wait for definitive evidence on outdoor

transmission before it imposed limits. At the time outdoor limits were imposed, the public

health system was overburdened and approaching a breaking point. At times when

community risk was elevated, the health care system was sufficiently fragile that even a

small number of infections could have dire consequences. During those periods, even

lower risk activities such as outdoor gatherings could increase pressure on the health care

system.

[151] The moving parties argue that outdoor restrictions are counterproductive, in that they may

drive people to gather in large groups indoors, where the transmission risk is much higher.

Dr. Chagla offered an opinion to that effect. However, this theory is rooted in supposition

rather than empirical evidence. Furthermore, a law is not invalid because some people may

disobey it. It is anomalous to suggest that a decision to disobey indoor restrictions is

actually caused by outdoor restrictions. If someone chooses to break the law, they are

responsible for their non-compliance; it is not attributable to the law or those who have

enacted it.

d. Retail v. Religious Settings

[152] Similarly, the moving parties argue that there is no justification for placing more stringent

limits on religious gatherings than were imposed on retail settings. It is said that the

measures were not minimally impairing because more people could attend a big box store

than could attend religious services. Religious activity is constitutionally protected and

should attract at least the same latitude given to non-protected activity. It is said that, while

customers come and go in retail shops, staff are present for prolonged periods and that they

are a proper comparator for persons attending a religious service.

[153] Ontario responds by challenging the validity of the comparison. It relies on the evidence

of Dr. McKeown that “comprising the restrictions that apply in one circumstance to those

that apply in another is not a useful or appropriate exercise”. Ontario further argues that,

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if there is to be comparison, it must, to use the language of Hinkson C.J. in Beaudoin, be

“a comparison of comparables”: Beaudoin, at para. 229. Risk factors are very different in

the retail setting where attendance is transient, and people do not tend to linger. While

staff are on site for prolonged periods, employers are bound by statute to employ measures

to keep staff safe. Perhaps most importantly, the retail experience does not contemplate the

same potential for infectious droplets to be passed from person to person. As it was put by

Sotomayor J., dissenting, in Roman Catholic Diocese of Brooklyn, New York v. Andrew M.

Cuomo, Governor of New York, 592 U.S. (2020), No. 20A87, at p. 3, “bike repair shops

and liquor stores generally do not feature customers gathering inside to sing and speak

together for an hour or more at a time”.

[154] Other factors contribute to the risks posed by religious gatherings. Persons known to each

other, and bound by a common faith, may be tempted to greet each other with hugs or

handshakes. The more people that congregate in one place, the more difficult it is to

monitor and enforce physical distancing requirements. The best evidence of this may lie

in the photographs and videos of the moving parties’ own prayer services. Admittedly,

these photographs and videos captured activity during periods of non-compliance with

restrictions. Nonetheless, if a picture is worth a thousand words, these depictions say a

great deal about what can happen at a large, dynamic, participatory prayer service. The risk

is amplified where, as here, the pastors of the churches have expressed a disinclination to

enforce physical distancing requirements.

e. Restrictions Were Carefully Tailored and Modified

[155] Finally, it is important to note that, throughout the pandemic, religious gathering limits

were carefully tailored to reflect evolving circumstances, new scientific evidence, and

changing levels of risk. Ontario never completely banned religious gatherings. Even when

risk was at its highest, and public health at its most precarious, religious institutions were

permitted to have upwards of ten persons together, to facilitate virtual or drive-in services.

The ten-person limit was geographically tailored and time limited. It was in force only in

those regions where the virus was most acute, and only for so long as it was warranted by

prevailing risk factors. Caps of 15 and 25 percent on indoor gatherings were only in place

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for a few weeks (April 3 to 18 and June 11 to July 15, 2021). From March 29 to April 18

and June 11 to October 24, 2021, both churches could hold outdoor gatherings of any size

so long as there was space for physical distancing. From October 25, 2021, to January 4,

2022, there was no limit at all on the size of outdoor religious gatherings.

[156] Significantly, the tightest restrictions were imposed at times when the public health care

system was pushed to capacity, such that even a small risk was too much, in light of the

burden on hospitals and ICUs. When the prevalence of Covid-19 was high, the

corresponding pressures on hospital and ICU capacity meant that even isolated incidents

of transmission could have grave public health consequences. The most stringent

restrictions correlate with when pandemic dangers were at their highest. A pendulum of

oscillating risk factors was met with a pendulum of oscillating restrictions.

[157] There may well have been other ways to address the ongoing threat of the pandemic, but I

have no difficulty finding that Ontario’s choices fell well within the range of reasonable

alternatives. The decisions made by public officials were supported by sound medical

opinion. It was imperative that Ontario take meaningful and timely steps to protect the

public from the scourge of a deadly and unpredictable virus. I find that the measures

employed were minimally intrusive in that they were an eminently reasonable means of

achieving public protection during the throes of a deadly pandemic.

5.

Proportionality

[158] The final stage of the Oakes test “allows for a broader assessment of whether the benefits

of the impugned law are worth the cost of the rights limitations”: Hutterian, at para. 77.

The court must consider the societal benefits of the impugned restrictions and ask whether

the benefits outweigh the deleterious effects on freedom of religion. While an important

interest, religious freedom may have to yield to the public good. While the perspective of

a religious claimant is important, it must be considered “in the context of a multi-cultural,

multi-religious society where the duty of state authorities to legislate for the general good

inevitably produces conflicts with individual beliefs”: Hutterian, at para. 90.

[159] I will begin by addressing the benefits of the impugned law.

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[160] The government objectives in this case are amongst the most compelling imaginable – the

protection of human life in the face of an unprecedented and unpredictable virus, carrying

a threat of devastating health consequences. It is not hyperbole to describe this as a crisis

of the highest order, requiring early and effective intervention by public officials. Ontario

was entitled to impose restrictions in the interests of public health, and the public was

entitled to have those restrictions imposed. While framed as a contest between Ontario

and the moving parties, this case also implicates the interests of the many Ontario residents

who wished the government to keep them safe during a public health emergency. The

measures protected the constitutional rights of those individuals to life and security of the

person. This case is not just about individual choice. Covid-19 has its own communal

character whereby individual choice can have community consequences. Infection of

someone who chose to attend a religious service can lead to the infection of others who did

not make that choice and who may be made vulnerable by precarious health conditions.

These risks are multiplied when one considers the prospect of multiple religious gatherings

taking place across the province at the same time.

[161] There is good reason to believe that the measures had their intended effect of reducing

Covid-19 transmission rates, and attendant illness. At para. 59 of his affidavit, Dr.

McKeown testified that:

Many key public health indicators showed signs of significant improvement

following the implementation of Ontario’s strictest public health measures.

While there are many factors that contribute to the transmission of COVID-

19, this data suggests that Ontario’s public health measures decreased the

spread of COVID-19 across the province, reduced the overall strain on the

healthcare system, and likely saved lives.

[162] It is his opinion that the rate of illness and death in Ontario would have been much higher

were it not for gathering limits. The moving parties contest this assertion, noting that

correlation is not causation. They point out that the peaks and valleys of the graph

documenting infection rates might reflect nothing more than the seasonal peaks and valleys

of the virus itself. They point to graphs of infection rates in other jurisdictions, which seem

to reflect the same rate of climb and descent.

Page: 56

[163] I agree that correlation is not necessarily causation. However, it is not clear how else

Ontario could prove the effectiveness of its preventative measures. It may be impossible

to draw a perfectly straight causal line between religious gathering limits, or gathering

limits in general, and the reduction of Covid-19 infection. There are too many factors at

play to empirically measure the impact of a single restriction on infection rates. Nor is this

a context permitting of controlled experiments. I defer to Dr. McKeown’s medical opinion

that restrictions did have a salutary impact on infection rates. It is his opinion that, were it

not for the restrictions, many more people would have suffered extreme illness and died.

Quite apart from Dr. McKeown’s opinion, there is an inherent lay logic to this proposition.

One way to curb infection is to restrict the circumstances that breed infection. That is, in

essence, what was done, with varying degrees of restriction depending on the prevailing

level of threat.

[164] This is not about numbers. Life and health were endangered by the pandemic, and steps

were taken to prevent those dangers from being realized. The fact that people die every

year from other conditions, such as influenza, does not set a bar of tolerable mortality. The

claimants point out that Covid-19 led to approximately 4.5 times the number of deaths and

approximately 2.5 times the number of hospitalizations that one would expect from

seasonal influenza over a similar two-year period. However, no one would rationally

suggest that a certain number of preventable deaths should have been allowed in the name

of religious freedom, or that the lives of certain individuals – those who are over 60 or have

underlying health conditions – have less intrinsic value than religious observance. These

are false dichotomies. The sanctity of human life is not reducible to crass comparisons.

The salutary benefit flows from the prospect of saving lives and preventing serious illness,

even if we cannot precisely quantify how many lives were saved.

[165] What about the deleterious impact on religious freedom?

[166] In Hutterian, the Supreme Court stated, at para. 88:

The deleterious effects of a limit on freedom of religion requires us to

consider the impact in terms of Charter values, such as liberty, human

dignity, equality, autonomy, and the enhancement of democracy: Thomson

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Newspapers, at para. 125; see also Health Services and Support —

Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27,

[2007] 2 S.C.R. 391. The most fundamental of these values, and the one

relied on in this case, is liberty — the right of choice on matters of

religion. As stated in Amselem, per Iacobucci J., religious freedom

“revolves around the notion of personal choice and individual autonomy

and freedom” (para. 40). The question is whether the limit leaves the

adherent with a meaningful choice to follow his or her religious beliefs and

practices.

[167] I have found that the religious gathering limits infringed s. 2(a) by interfering with the

ability of the claimants to engage in religious activity as a collective in-person

congregation. I stand by that finding. I also accept the religious gathering limits had

negative impact on the psychological well-being of church members, as chronicled in the

affidavit evidence filed with the court. Yet, it remains the fact that, despite the claimants’

characterization as such, there was never a complete ban on religious gatherings or

religious activity. It was always open to the churches to deliver services to congregants,

albeit in a less than optimal fashion. Gathering limits imposed a significant burden on

religious activity, but they did not prevent it from occurring. During much of the pandemic,

churches were at liberty to gather the congregation for outdoor services. While other forms

of assembly, such as virtual and drive-in meetings, were not the equivalents of in-person

services, they could facilitate dissemination of religious content. The point is that the

deleterious effects of the gathering limits are mitigated by the fact that other means of

religious expression were available.

[168] Dr. McKeown attested, at para. 97 of his affidavit, that:

Ontario recognizes that religious communities are often a source of support,

comfort and guidance for the communities they serve. Religious leaders can

provide pastoral and spiritual support during public health emergencies and

other health challenges. The public health measures for religious gatherings

attempted to allow religious services to continue so that members of

religious communities could access the benefits of those services, but with

strict capacity limits that mitigate the spread of COVID-19.

[169] These other means of expression were not ideal. The limits imposed a burden on religious

freedom. However, this burden must be understood within the broader context of the

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pandemic and the burdens experienced by all residents of Ontario. Many sacrifices were

required of many individuals and institutions in the interests of public health. Religious

institutions were affected, but no more than was reasonably necessary and for no longer

than was reasonably required. Ontario accounted for the importance of religious activity

by allowing greater latitude for religious than non-religious gatherings. Limits on religious

activities were less stringent than limits on social events and public performance events.

[170] There is yet another layer to this analysis. Religious gathering limits impeded religious

activity, but they also conferred a benefit on religious adherents by reducing the risk of

infection at religious events. I expect that the claimants will see this as paternalistic, in that

contradicts their freedom of choice. However, they are not the only religious actors to

whom the laws applied. There may well be individuals who took comfort from capacity

restrictions at churches. There may be individuals who would not have attended services

absent these protections. For those individuals, the gathering limits enhanced their ability

to participate in religious activities. Ontario did not set out to target religious groups; it set

out to protect those groups, just as it set out to protect others who found themselves in

different settings and circumstances.

[171] I will close the analysis by returning to the notion of institutional pluralism. ARPA argued

that this factor has an important role to play in the balancing of salutary and deleterious

effects. Institutional pluralism envisages a mutual respect between state and other

institutions that operate within society. As it was put by ARPA, churches’ ability to fulfil

religious duties may be legitimately inconvenienced by laws of general application, and

the government’s ability to fulfil its responsibilities may be legitimately inconvenienced

by its obligation to respect religious institutions. It is through accommodation and

reciprocity that both church and state can flourish in their respective roles.

[172] I accept that this is a legitimate aspiration. However, it does not change the outcome in

this case. I note, by way of digression, that, by breaching the law, the claimants showed a

lack of respect for state authority. Their disobedience is, for constitutional purposes, beside

the point. What does matter is the respect shown by Ontario to religious institutions by

tailoring restrictions and easing them when it was possible to do so. Full accommodation

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of religious freedom would not have resulted in “legitimate inconvenience” for

government. It would have represented a wholesale abdication of government

responsibility to act in the public interest. It would have meant turning a blind eye to threat

of severe health consequences for a large swath of the population.

[173] Hence, I have little hesitation in concluding that, while numerical and percentage gathering

limits infringed s. 2(a) of the Charter, the salutary benefits of these restrictions outweighed

the deleterious effects on religious freedom. Ontario has met its burden to establish that

the regulations in issue are reasonable limits, demonstrably justified in a free and

democratic society.

J. CONCLUSION

[174] I would answer the questions posed in the case as follows:

1. Did the Ontario restrictions on the size of religious gatherings interfere with the

fundamental guarantee of freedom of religion in s. 2(a) of the Charter?

Yes.

2. Did the restrictions interfere with other fundamental freedoms guaranteed in s. 2

of the Charter?

It is not necessary to answer this question given the answer to #1.

3. If there was interference with freedom of religion, or other freedoms guaranteed

by s. 2 of the Charter, are such limitations reasonable and demonstrably justified

in a free and democratic society under s. 1 of the Charter?

Yes

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[175] The motions to set aside the impugned judicial orders are dismissed.

______________________________

Renee M. Pomerance

Justice

Released: February 28, 2022

Corrected Release Date: June 3, 2022

_______________________________________

Corrected Ruling

_______________________________________

The text of the original Ruling has not been amended in any way. Paragraph number has been

added at para. 61, therefore, adjusting paragraph numbers from para. 61 onward to conclusion of

Ruling. This copy replaces all other copies.

CITATION: Ontario v. Trinity Bible Chapel et al, 2022 ONSC 1344

KITCHENER COURT FILE NO.: CV-21-00000095-0000

ST. THOMAS COURT FILE NO.: CV-21-08

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

The Attorney General of Ontario

Applicant

and

Trinity Bible Chapel, Jacob Reaume, Will Schuurman,

Dean Wanders, Randy Frey, Harvey Frey, and Daniel

Gordon

Respondents

and

Association for Reformed Political Action

Intervenor

AND BETWEEN:

Her Majesty the Queen in Right of Ontario

Applicant

and

The Church of God (Restoration) Aylmer, Henry

Hildebrandt, Abram Bergen, Jacob Hiebert, Peter

Hildebrandt, Susan Mutch, Elvira Tovstiga, and Trudy

Wiebe

Respondents

and

Association for Reformed Political Action

Intervenor

Ruling on Constitutional Validity of Religious

Gathering Restrictions (Covid-19)

Pomerance J.

Released: February 28, 2022

Corrected Release Date: June 3, 2022