Brent Smith, et al. v. Attorney General of British Columbia, et al.

(British Columbia) (Civil) (By Leave)


Charter of Rights — Freedom of religion — Freedom of expression — Freedom of peaceful assembly — Freedom of association — Administrative law — Judicial review — Is the constitutionality of provincial rules of general application that infringe Charter protections and that are imposed by order rather than regulation reviewable only under the strictures of administrative law — May citizens challenging the constitutionality of administrative decisions of general application provide evidence relevant to whether the decisions are demonstrably justified in a free and democratic society — Do citizens challenging the constitutionality of decisions which the government admits infringe Charter protections bear the burden of proving the unreasonableness and lack of justification for those decisions — Can a province prevent judicial review of the constitutionality of orders applicable to everyone in the province solely on the basis that individuals can or have applied to the government decision-maker for reconsideration — Canadian Charter of Rights and Freedoms, ss. 1, 2(a), (b), (c), and (d).


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After determining that the COVID-19 virus was an immediate and significant risk to public health in the province, the Provincial Health Officer of British Columbia (PHO) made numerous orders prohibiting or regulating specific kinds of gatherings and events based upon the risk of transmission known to be associated with the types of settings and activities involved. After receiving tickets for violating some of the orders, three churches and their spiritual leaders challenged the constitutionality of some of the restrictions imposed. Among other relief, they petitioned for a declaration that the time-limited orders imposed by the PHO in the second wave of the COVID-19 pandemic prohibiting in-person gatherings for religious worship infringed their rights under ss. 2, 7 and 15 of the Charter, and were of no force and effect. After filing their petition, the applicants sought a reconsideration of the orders and on February 25, 2021, the PHO varied her previous orders to permit gathering for weekly, outdoor, in-person religious services subject to certain conditions.

The Supreme Court of British Columbia held that the applicants were not entitled to judicial review of pre-reconsideration decision orders. However, the court went on to determine their reasonableness under the framework of Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395. The court found that there had been an infringement of s. 2 Charter rights and declined to make findings with respect to the ss. 7 and 15 Charter claims. The court found that, given the nature and extent of the threat of COVID-19, the orders temporarily prohibiting gatherings for in-person religious worship were a reasonable and proportionate balancing of the Charter rights and the underlying objectives and were justified under s. 1 of the Charter. The Court of Appeal for British Columbia dismissed an application to adduce fresh evidence and dismissed the appeal.

Lower Court Rulings

March 18, 2021
Supreme Court of British Columbia

2021 BCSC 512, S210209
Applicants held not to be entitled to judicial review of pre-reconsideration decision orders. In any event, the infringement of their rights under s. 2 of the Charter is reasonable and proportionate and is justified under s. 1 of the Charter. Mr. Beaudoin was granted a declaration that certain orders infringed his rights under s. 2(c) and (d) of the Charter and were of no force and effect.
December 16, 2022
Court of Appeal for British Columbia (Vancouver)

2022 BCCA 427, CA47363
Application to adduce fresh evidence and appeal dismissed.