Ontario church launches freedom of religion challenge over COVID-19 gathering restrictions


Under Ontario’s colour-coded COVID-19 response framework, Ontario has ranked regions within the province by colour, corresponding to local case numbers and trends.[1] As of November 23, 2020, Toronto has been in the grey, or “lockdown” category which limits in-person gatherings. A Church located in the North York area near Toronto is situated in a zone where religious services and ceremonies are restricted to gatherings of 10 people indoors.[2] In light of these restrictions, the Church is challenging the legality of Ontario’s lockdown.[3]

The Toronto Church has a large facility that can hold over 1000 people. Before March 2020, “the Church would hold two services every Sunday with 600 people or more in attendance”, and on special occasions the Church could accommodate 4000 people over several days.[4] For some time, the Church has only been permitted to hold religious services with 10 worshippers.

On December 18, 2020 the Church challenged the constitutionality of these restrictions in court.[5] The Church claims that the restrictions infringe the Charter of Rights and Freedoms which guarantees everyone freedom of conscience and religion. The Church argued that the in-person aspect of religious practice is very important. The Pastor presented several Bible passages that mandated congregation, and three Church members spoke about the importance of congregational prayer. Therefore, they argue the Ontario restrictions pose an unreasonable restriction on the religious freedom of the Church and its congregants.[6]

The Ontario government concedes that the lockdown restrictions do pose a limit on freedom of religion.[7] However, the Ontario government suggests that the regulations were enacted to protect public health, and the public health concern outweighs the temporary restriction on the Church’s freedom of religion.[8]

On December 18, the Ontario court was deciding whether to grant an interim injunction, which would allow the Church to operate at 30 per cent capacity (300 worshippers) pending the result of the constitutional challenge.

The Court denied the injunction, stating that “the harm that would be caused to public health…outweighs the harm being suffered by the Church and its members”.[9] The court recognized that the Church’s constitutional claim had merit, and that the restrictions would cause the Church and its members to suffer irreparable harm.[10] The court recognized that there is no way to quantify or compensate “for the lost opportunity to worship and celebrate this most holy time together”.[11] However, the court took note of the public health and medical experts who have identified close and prolonged contact of people from different households to be among several risk factors for the spread of COVID-19.[12]

At the core of this decision is the tension between protecting public health and preserving religious freedom, and the seemingly unequal restrictions of the Ontario government. As the court noted, Ontario has made policy choices about which activities are permitted and which business and services can continue to remain open and at what capacity.[13] As the Church Pastor notes, “some businesses, deemed essential, are allowed to operate at 50 per cent capacity”.[14] The argument of the Church seems to be that they are an essential service and should be allowed to operate as such. Other essential businesses such as grocery stores, pharmacies, liquor, and big box stores are permitted to remain open with capacity restrictions. Especially given the enormous capacity of the Church (more than 1000 people), operating at 0.9 per cent is simply not consistent with the capacity restrictions placed on other essential services.

On the other hand. the Ontario court also acknowledged the precedential effect of an interim injunction.[15] Granting an interim injunction is likely to encourage other religious institutions to make similar claims, leading to a potential cascading effect. The temporally and geographically limited nature of the restrictions should also be considered. However, how long the restrictions on religious gathering will last is unknown.

In its judgment, the court did acknowledge that there is a serious legal question to be decided here. The court will hopefully make a final decision on the merits of the constitutional challenge in 2021.

This blog post was written by a CCLA-PBSC Rights Watch student. Views expressed do not necessarily reflect the view of the CCLA or PBSC. 

[1] “COVID-19 response framework: keeping Ontario safe and open” (November 3, 2020), online: Government of Ontario < https://www.ontario.ca/page/covid-19-response-framework-keeping-ontario-safe-and-open>.

[2] O Reg 82/20, sched 4, s1(1)(d).

[3] Toronto International Celebration Church v Ontario (Attorney General), 2020 ONSC 8027.

[4] Ibid at para 1.

[5] Tyler Dawson, “During Christmas, some churches appeal to a higher order to protest COVID lockdowns” (December 22, 2020), online: National Post < https://nationalpost.com/news/during-christmas-some-churches-appeal-to-a-higher-order-to-protest-covid-lockdowns>.

[6] Ibid at para 23.

[7] Ibid at para 16.

[8] Ibid at para 28.

[9] Ibid at para 33.

[10] Ibid at para 23.

[11] Ibid at para 25.

[12] Ibid at para 19.

[13] Ibid at para 18

[14] “’We believe that we are an essential service’: Toronto church challenges gathering limits in court, arguing they are unconstitutional: (December 8, 2020), online: Toronto Star https://www.thestar.com/news/city_hall/2020/12/07/we-believe-that-we-are-an-essential-service-toronto-church-challenges-gathering-limits-in-court-arguing-they-are-unconstitutional.html.

[15] Supra note 3, at para 30.