Churches in Manitoba Court of Appeal challenge COVID-19 rules

Lawyers for seven Manitoba churches tried again Tuesday to invalidate some of the province’s previous COVID-19 restrictions.

The church said public health orders in 2020 and 2021 that temporarily closed in-person religious services and then allowed them to limit attendance violated the Charter of Rights and Freedoms.

Queen’s Court judges previously rejected that argument, saying the restrictions were necessary to prevent the spread of COVID-19 and allowed under section 1 of the Charter.

Lawyers for the church told the appeals court that the trial judge erred in not fully examining whether the less restrictive rule could achieve the same goal.

“The key question was whether there were less invasive options,” Eugene Meehan told the court.

“When churches are closed, many other businesses may be open.”

At the 2021 trial, health officials testified that strict public health orders were needed to quickly curb the spread of the novel coronavirus as the number of cases soared and hospitals were overwhelmed. The shortage of intensive care beds became so severe at one point in 2021 that dozens of patients were flown to other provinces to free up beds.

Public health orders in Manitoba change frequently as case numbers change. At times, many nonessential retail stores are closed and church services are limited to online. People are restricted from receiving guests at home.

The province’s chief public health officer, Dr. Brent Roussin, has said close, prolonged indoor contact, which occurs at church services, weddings and funerals, is the main driver of the cases.

Meehan told the appeals court that religious services face stricter rules than restaurants, shops and other businesses. Even with in-person services initially allowed, attendance caps are lower than malls.

Meehan said religious services are more chartered than shopping and should not face stricter restrictions.

“Unconstitutional activities and businesses are allowed (as per the previous order) while constitutional activities are not allowed.”

Government lawyer Charles Murray said the presiding judge – Chief Justice Glenn Joyal – considered all the evidence, including testimony from expert witnesses from the Church, who said they needed to reduce limit. Joyal ended up firmly siding with government experts, including the chief public health officer.

“He found them all to be credible and reliable witnesses,” Murray said.

The risk of the virus spreading is greater in churches, where people gather for extended periods of time to sing or take communion, Murray said.

Murray asked the three-judge panel to consider how the public health order could reduce the spread of COVID-19.

“The (health) system is on the brink of collapse,” he said.

“We’ve seen the spread of the virus go down.”

The church is also appealing the trial judge’s ruling that the chief public health officer has the power to issue broad public health orders without more public scrutiny or legal constraints. In his ruling, Joyal said the orders required the approval of the provincial health minister, and provincial law governs and limits what orders can and cannot be made.

The appeals court judges reserved their decision and did not say when they would make a decision.

The Manitoba government lifted all COVID-19 public health orders in March. Meehan said it was important for the court to rule on the case so the government could provide guidance for future public health emergencies.