This week on Legally Speaking with Michael Mulligan:

Several churches in the Fraser Valley have been refusing to comply with COVID-19 health rules and have been conducting in-person services. 

The churches have started a legal challenge to the public health orders on the basis that they believe them to be unconstitutional given constitutional protection for “freedom of conscience and religion”.

This, and related constitutional protections, are subject to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”.

Ultimately, the courts will need to decide if the prohibition on in-person religious services meets this test. 

Prior to the matter being decided, the province of British Columbia, and Dr. Henry, asked the Chief Justice of the BC Supreme Court for an interim injunction to order the churches to stop conducting the in-person services, until the case had been decided.

There is a three-part test to determine if an interim injunction should be issued:

1.       Has the applicant demonstrated there is a fair question to be tried? 

2.       Will the applicant suffer irreparable harm if an injunction is not granted? 

3.       Does the balance of convenience favour the granting of an injunction?

Chief Justice Hinkson determined that while the first two parts of the test for an interim injunction had been met, including a finding that there could be irreparable harm including deaths, the third part of the test had not been met. 

His reasons for reaching this conclusion included the fact that the Public Health Act already permits large fines, and jail sentences, to be imposed where orders are not followed, and the fact that British Columbia failed to prosecute people who were alleged to have been intentionally violating a previous injunction to stop blockading the port in Vancouver. 

Chief Justice Hinkson quoted from a decision of Justice Tammen who found that the people intentionally breaching the injunction to stop blockading the port were engaged in a direct attack on the rule of law. 

Also discussed on the show is a recent BC Court of Appeal decision dealing with the definition of a motor-assisted cycle. 

The BC Motor Vehicle Act, and associated regulations, exempt some motor-assisted cycles from the need for insurance and the need for a licence to operate them.  

Unfortunately, the rules are dated, and ambiguous. 

In the case discussed, the 3 Court of Appeal judges split 2 – 1 on whether a new trial was required. 

In order to encourage people to use an alternative, electric, transportation options it would be desirable for the provincial government to update and clarify the regulations to clearly include devices that did not exist when the current regulations were created. 

Without clarity, people using newer electric transportation devices may be subject to very large fines where were intended to discourage people from operating large traditional vehicles without insurance.

For links to the cases discussed, follow this link.