Should churches be able to keep their doors open? Why the lawyer defending them says yes

The Calgary-based Justice Centre for Constitutional Freedoms is representing a number of Ontario pastors and church elders who have been charged for holding church services in contravention of the Reopening Ontario Act. 

Just yesterday, police issued a summons to Pastor Henry Hildebrandt at the Church of God in Aylmer, Ont., for a service held on Dec. 27, 2020. The court date has been set for Feb. 11.

Centre lawyer Lisa Bildy spoke with London Morning's Rebecca Zandbergen about representing a number of places of worship, including the Church of God.

RZ: Why has the Centre for Justice decided to take on these cases? 

LB: Our organization is dedicated to the defence of Canadians civil liberties. The Charter of Rights and Freedoms guarantees Canadians certain fundamental freedoms and so it's our mandate to advance court actions and to educate and to defend those freedoms. 

RZ: Why do you believe churches should still be able to hold their services in person? 

LB: We got involved with the Church of God in Aylmer in April when they were threatened with charges for having some drive-in services and there was absolutely no public health issue associated with that. I started a charter challenge and within days had the province back down and change the rules so that drive-in services could happen.

After the drive-in services were opened up, we heard from churches that couldn't have those, whether they were in inner cities with no parking lot or members of the Orthodox Jewish community, for example, who don't use mechanized vehicles on the Sabbath. They were not able to pray together or worship, which is something that is guaranteed under the Charter. 

Fast forward, we got the churches open 30 percent with some lobbying and some meetings with the government. And the churches were working within that. Now, the government has said, 'Nope, we've got to go back to having only 10 people in your buildings.' Some of these buildings can hold 1,500 people. A few churches have decided that they're going to continue on with the 30 percent opening because they see that their congregants and their communities need to have that connection.

RZ: Why not do it online? A lot of churches are going that route.

LB: As far as these churches are concerned, it's not a spectacle you can just turn on the computer and watch. It's a very participatory experience for a lot of faith communities. They have communions, they have baptisms, they have various rites where they need to be together in person. Some of our clients are Mennonites and they're not online very much or at all, so their churches are their lifeline. 

While everybody's concerned about COVID, it isn't the only thing out there. There are other harms that ensue when we take people out of their normal environments and we put all these restrictions in place and we remove all of their civil liberties for a ten-month period.

RZ: But at what point do public health interests trump religious rights? Isn't there a greater good? 

LB: Sure, there is a greater good. But you can make this argument about anything. Every winter, we have respiratory ailments that go around the community and often are very hard on on the elderly, as it is with COVID.

RZ: Well, we know with COVID, the rates of infection and the severity of it is much greater than the general flu. 

Sure. But you can talk about a greater good argument in just about any context. Let me just take you back to the Charter of Rights and Freedoms, which is really what this is about. We, as Canadians, do have these rights. A lot of people are saying, 'That's all irrelevant during COVID.' Fair enough. The issue is that the government has to justify that the measures that it's taking are proportionate, that they are a minimal impairment of those rights, and that there's a balancing act that has to happen. They haven't been put to the test to do that. If you're charging these people, we're going to court and we're going to make the argument that you have to prove that these measures are proportionate and reasonable and justified. 

RZ: Let's put it another way. If we do look at Aylmer, that community is about 7,500 people. It's dealing with the most cases of COVID-19 in Elgin County. Is that church leader concerned about the congregation getting sick? 

LB: I would point out that that church has been doing mainly drive-in services. Aylmer isn't the only church we're dealing with. There's congregations in Windsor and Waterloo and Leamington and so on. Most of them are just trying to have 30 percent, which is what they had for the last number of months. They're not trying to open up completely. They're still putting measures in place. They're checking temperatures at the door. They're spacing people out, so it's not like it's a free for all. 

Henry Hildebrandt is the pastor of the Church of God in Aylmer, Ontario.

RZ: The first hearing is on January 20th. How long do you anticipate these cases will take? 

LB: It could take months. This is just a first appearance coming up. And then there'll be other appearances down the line until we get to a full hearing. We'll be serving a notice of constitutional challenge on the government so that they will come to defend their restrictions. They haven't been forced to do that yet. And really, that's why this case is so important, because we do have civil liberties in this country. It is a free country. And if the government is going to restrict us for ten months, they should be put to the test of showing us that the evidence justifies that. 

This interview has been edited for length and clarity.