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Court of Appeal finds gathering & events public health orders justified under Charter

January 17, 2023

Administrative law – Decisions reviewed – Health authorities – Ministerial orders – Judicial review – Appeals – Compliance with legislation – Standard of review – Reasonableness – Correctness – Human rights complaints – Religion – Charter of Rights and Freedoms – Freedom of religion – Physicians and surgeons

Beaudoin v. British Columbia, [2022] B.C.J. No. 2430, 2022 BCCA 427, British Columbia Court of Appeal, December 16, 2022, G.J. Fitch, G.B. Butler and L. Marchand JJ.A.

This was an appeal of orders made on judicial review dismissing a declaration sought by three churches and their spiritual leaders that public health orders banning indoor religious gatherings due to Covid-19 violated their Charter rights. A separate petitioner, Mr. Beaudoin, appealed a declaration on judicial review that certain restrictions imposed by the Public Health Officer (PHO) on outdoor gatherings were unconstitutional did not go far enough. A summary of the judicial review decision can be found at: https://plus.lexis.com/api/permalink/81df802c-b992-4cae-b762-906b042cfefe/?context=1537339

The Court of Appeal dismissed Mr. Beaudoin’s appeal as moot. At the time of judicial review, the order at issue was the order of February 10, 2021, which was in effect at the time, extending gathering & events (G&E) restrictions indefinitely. The Court found that neither Mr. Beaudoin nor anyone else was prohibited from engaging in outdoor protests arising out of pandemic-related public health orders at the time of the appeal. The charges against Mr. Beaudoin have been stayed and he is no longer in jeopardy as a result of Violation Tickets and faces no collateral consequences. In the circumstances, the issue had become academic.

In respect of the remaining matters upon appeal, the appeal was dismissed. The Court found that the chambers judge correctly applied Doré as the appropriate justificatory framework and made no error in the application of that framework. The same result was reached by the Court when applying the Oakes test to the facts at hand. The Court found the G&E orders were minimally impairing and were not imposed until the exponential increase in cases during the second wave. The Court commented on the societal lens that must inform the Oakes analysis:

[307] A free society is a pluralistic one in which individuals are entitled to pursue, within reasonable limits, their individual beliefs. But to live in a community is also to acknowledge our interdependence. We share limited collective resources upon which all of us depend, including our healthcare system. We share the environment, the air we breathe, and our susceptibility to transmissible diseases, the burden of which falls disproportionately on the most vulnerable among us.

The Court concluded that the deleterious effects of the G&E orders did not outweigh the salutary benefits to be gained from them. They were shown to promote public health, minimally impairing in their effects, and reflected a proportionate balancing of interests at stake.

This case was digested by Roshni Veerapen, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact Roshni Veerapen at [email protected].

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Important Notice: The information contained in this Article is intended for general information purposes only and does not create a lawyer-client relationship. It is not intended as legal advice from Harper Grey LLP or the individual author(s), nor intended as a substitute for legal advice on any specific subject matter. Detailed legal counsel should be sought prior to undertaking any legal matter. The information contained in this Article is current to the last update and may change. Last Update: January 17, 2023.

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