Provincial Health Officer Dr. Bonnie Henry

From the Justice Centre for Constitutional Freedoms

These churches submitted an accommodation request to gather for in-person worship services, but their request received no response for several weeks. At the same time, however, Dr. Henry had been responding within one or two days to accommodation requests from Orthodox synagogues, granting them permission to meet in-person.

The Justice Centre for Constitutional Freedoms announces that Fraser Valley churches are arguing, in a 10-day hearing in Chilliwack, BC, that BC Provincial Health Officer Dr. Bonnie Henry granted preferential treatment to some faith groups over others when considering requests to be exempted from her total ban on all in-person worship services. The churches argue that their prosecution for violating public health orders is an abuse of process and ought to be stayed. Lawyers for the churches will present evidence that Dr. Henry acted dishonestly and in bad faith while banning in-person worship services in 2020 and 2021, granting immediate exemptions to Jewish synagogues while ignoring exemption requests from Muslims and Christians. The hearing will at the Chilliwack Law Courts, will conclude on Thursday, June 27.

In November 2020, Dr. Henry banned in-person worship services while allowing bars, restaurants, gyms, and salons to remain open for in-person services.

Along with several other churches in the Fraser Valley, the Free Reformed Church in Chilliwack, BC, re-opened its doors in 2020 and 2021 while simultaneously complying with health orders regarding face masks, hand washing, social distancing, etc. In January 2021, the Free Reformed Church, along with two other churches, filed a constitutional challenge to the prohibition on in-person worship services. After filing the challenge, these churches submitted an accommodation request to gather for in-person worship services, but their request received no response for several weeks. At the same time, however, Dr. Henry had been responding within one or two days to accommodation requests from Orthodox synagogues, granting them permission to meet in-person.

Two business days before the Court was scheduled to hear the constitutional challenge, Dr. Henry finally granted the Free Reformed Church and two other churches limited permission to gather outdoors, while refusing them permission to gather indoors, claiming that indoor gatherings were too risky. However, earlier that same week, Dr. Henry had granted all Orthodox synagogues in the province permission to gather indoors; that same week, mosques seeking permission to gather in-person received no accommodation.

On March 18, 2021, BC Supreme Court Chief Justice Christopher Hinkson dismissed the Free Reformed Church’s challenge, in part because Dr. Henry had granted them permission to meet outdoors. The BC Court of Appeal upheld Chief Justice Hinkson’s decision, and the Supreme Court of Canada subsequently refused to hear the case.

Meanwhile, Pastor Koopman of the Free Reformed Church, and other churches and pastors, were prosecuted by the Crown in BC Provincial Courts. On November 8, 2022, Pastor Koopman was found guilty of hosting an in-person worship service in December 2020.

On April 14, 2023, Pastor Koopman submitted an Application to the Provincial Court of British Columbia, alleging that the discriminatory actions of the Provincial Health Officer had made the continuation of his prosecution offensive to societal notions of fair play and decency and had brought the administration of justice into disrepute. In response, on May 10, 2023, the Crown argued that the abuse-of-process application should not proceed to an evidentiary hearing, and that Dr. Henry and Deputy Provincial Health Officer Dr. Brian Emerson should not be subpoenaed as witnesses in the case.

For three days, from May 15–18, 2023, Judge Andrea Ormiston heard arguments on whether the abuse of process Application could proceed to an evidentiary hearing. On September 6, 2023, Judge Ormiston denied the Crown’s Application to summarily dismiss Pastor Koopman’s abuse-of-process Application because she found that there was “some evidence that the Provincial Health Officer preferred some faith groups over others.” Judge Ormiston found that, under the circumstances, it was not “manifestly frivolous” to think that the continued prosecution of Pastor Koopman “risks undermining the integrity of the judicial process.” However, Judge Ormiston declined to allow Dr. Henry or Dr. Emerson to be subpoenaed on the matter.

“When government officials, including public health officers, exercise coercive government power, it is essential that they use that power honestly, in good faith and without discrimination against people based on irrelevant consideration, including their particular religious faith,” stated lawyer Marty Moore. “We believe that the evidence in this case will show that the Provincial Health Officer’s treatment of faith communities during 2020 and 2021 violated the rule of law and that the prosecution of pastors and churches in this context undermines public confidence not only in our public health officials, but also in our justice system.”