Canada, Ontario Superior Court of Justice, 28 February 2022, Registration No. CV-21-00000095-0000
Case overview
Country
Case ID
Decision date
Deciding body (English)
Type of body
Type of Court (material scope)
- Civil Court
- Criminal Court
Type of jurisdiction
Type of Court (territorial scope)
Instance
Area
Further areas addressed
- Health and freedom of association/public gathering/religion
- Scope of powers of public authorities (legislative, executive etc.)
Outcome of the decision
Link to the full text of the decision
General Summary
The case concerned the constitutionality of the limits imposed by the State of Ontario concerning religious gatherings during the spread of the pandemic. It has dealt with the potential violation of the freedom of religion stipulated by Section 2 of the Charter of Rights and Freedoms. The applicants (several religious associations) sought to set aside three judicial orders obtained by Ontario to compel compliance with religious gathering limits.
The Superior Court dismissed the claim and found that such limits were reasonable and demonstrably justified in light of the spread of the pandemic.
Facts of the case
The claimants sought a historical declaration of constitutional invalidity of the limits imposed on religious gatherings and they did so by requesting the set aside of three judicial orders obtained by Ontario.
The measures at stake aimed at preventing the spread of COVID-19 by prohibiting large gatherings, whether indoors or outdoors. With specific regards to religious services, the challenged measures significantly reduced the size of religious gatherings by restricting attendance to 15, 25, or 30 percent capacity. According to the claimants, such limits severely hampered the constitutional freedom of religion, giving rise to discrimination and unreasonableness.
Type of measure challenged
Measures, actions, remedies claimed
Individual / collective enforcement
Nature of the parties
Claimant(s)
Private collectiveDefendant(s)
Public
Type of procedure
Reasoning of the deciding body
The Court had analyzed Sections 1 and 2 of the Charter of Rights and Freedoms considering that the Freedom of religion embodies concepts of liberty, equality, autonomy, and the recognition of human dignity, it has concluded that it contemplates the co-existence of spiritual and civil authority. Despite such freedom being not absolute in terms, the Court found that, by reducing the attendance to religious events, the need to arrange multiple services might involve expenditure of time, effort, and money, and it would also alter the character of the religious experience itself. Hence, it found that the numerical or percentage capacity limits that have been imposed on religious gatherings – either indoors or outdoors – did transgress Section 2(a) of the Charter.
However, pursuant to Section 1 of the Charter, the Court further analyzed whether such a violation could be justifiable in light of the current circumstances affecting public health and safety (the so-called Oaks test). In this regard, the Court noted that religious gathering limits were carefully tailored to reflect evolving circumstances, new scientific evidence, and changing levels of risk. Furthermore, Ontario never completely banned religious gatherings. Significantly, the tightest restrictions were imposed at times when the public health care system was pushed to capacity. Based on the above, the Court concluded that the limits imposed on religious gatherings by Ontario – despite being a violation of the freedom of religion – were proportionate, reasonable and demonstrably justified on the grounds of the severe threat posed by the pandemic.
Conclusions of the deciding body
- The Ontario restrictions on the size of religious gatherings did interfere with the fundamental guarantee of freedom of religion enshrined within Section 2 of the Charter.
- However, such restrictions were reasonable and demonstrably justified in a free and democratic society under Section 1 of the Charter.
Fundamental Right(s) involved
- Freedom of association, Public gathering, Assembly
- Freedom of religion
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
- Health v. freedom of association / public gathering
- Health v. freedom of religion
General principle applied
- Proportionality
- Reasonableness
- State of emergency or necessity
- Precautionary
Balancing techniques and principles (proportionality, reasonableness, others)
The balancing test applied by the Court derived directly from Section 1 of the Canadian Charter, which states that the rights and freedoms enshrined therein are only subject to “such reasonable limits prescribed by the law as can be demonstrably justified in a free and democratic society”.
The Court has first found that the limits on religious gatherings did constitute a restriction to the freedom of religion. However, pursuant to Section 1 of the Charter, it considered that such limitations were still legitimate in light of the principles of proportionality, precaution and reasonableness. Such measures were not arbitrary, excessive nor disproportionate due to the severe circumstances brought by the pandemic.
Hence, the restrictions on religious freedom were justified in a democratic society.
Impact on national case law
This case directly stems from emergency legislation enacted to fight the spread of the pandemic.
