19 May 2021 Understanding Section 1 of the Charter
Legal challenges to Covid-19 gathering restrictions are happening across the country. Whether it’s a percentage cap on worship, only allowing for a small group, or a total prohibition, churches have turned to the courts to challenge the constitutionality of a government response that limits citizens’ ability to gather in worship. The churches in these cases argue that the restrictions are not in accordance with our Charter of Rights and Freedoms, our highest law. Included in Charter section 2(a) is the freedom of religion, which our Supreme Court has said includes “the right to manifest religious belief by worship and practice.” It is understandable to conclude that Covid-19 restrictions that limit or restrict corporate worship infringe that right under the Charter.
And yet, the one decision we have from the courts upheld the Covid-19 restrictions. That decision out of BC was the first case to be heard. Recently the court in Manitoba heard a similar case and hearings are upcoming for further cases in Ontario, Alberta, and BC. In all these cases, the courts will undoubtedly find that the Covid-19 restrictions impinge on section 2(a), but the meat of the decisions will be under the next stage of the analysis, which is whether the court finds that the government can justify that impingement.
This justification happens under section 1 of the Charter which says, “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” That is, the rights and freedoms in the rest of the Charter can be impinged by the government as long as the government is able to justify its actions. For example, Criminal Code prohibitions on child pornography limit freedom of expression, but the Supreme Court held that this is a justifiable limit due to the inherent harms of exploiting children.
“The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” ~ Section 1 of the Charter
Not every constitution includes a provision like our section 1 – notably, there is no equivalent in the American context. When establishing the test used under section 1, the Supreme Court noted that our constitutional approach does entail “difficult value judgments,” meaning that different judges are able to come to different conclusions as to whether the limiting of a right is justified in a certain situation. But despite this room for subjectivity, the Supreme Court said, “it is preferable to make these judgments explicitly, as doing so enhances the transparency and intelligibility of the ultimate decision.” Having a two-step analysis is supposed to allow greater clarity as to why a law is struck down or upheld.
The legal cases of churches challenging Covid-19 worship restrictions are all going to depend on the section 1 analysis. For this reason, we want to encourage you to watch this hour-long presentation that lays out simply and clearly how this analysis works. The video goes over:
- The history of section 1 – why it was included in the Charter in the first place.
- How section 1 is applied.
- Different case applications of section 1.
- A conversation about how this might be applied in Covid-19 church cases.
The video is clear and easy to follow for the non-lawyers out there. We recommend taking the time to watch it if you are interested in a deeper understanding of the court decisions regarding Covid-19 restrictions and churches’ ability to gather.
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