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  
10 ppl  
82/20 (26/12/20)  
per 363/20  
50% capacity and 2m  
distance  
10 ppl  
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  
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  
distance  
Maintain  
2m  
30/6/21 - 15/7/21  
25% cap.  
263/20 (29/6/20)  
per 363/20  
50% capacity and 2m  
distance  
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:  
Page: 14  
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-essentialservice 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 governments  
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 Chapels 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 individuals  
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  
Page: 16  
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  
Page: 18  
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.  
Page: 19  
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  
Page: 20  
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  
Page: 21  
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.  
Page: 22  
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  
Page: 23  
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.  
Page: 25  
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.  
Page: 26  
[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)  
Page: 27  
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  
Page: 28  
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  
Page: 29  
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?  
Page: 30  
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  
Page: 31  
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  
Page: 32  
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.  
Page: 33  
[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  
Page: 34  
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  
Page: 35  
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 drivers 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 drivers 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 ‘churchrequires 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 Lords 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 verticaland 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  
Page: 40  
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,  
Page: 41  
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  
Page: 42  
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  
Page: 43  
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  
Page: 46  
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.  
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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  
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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,  
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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 seeapproach, 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.  
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[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  
Page: 57  
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