10-person limit in Montreal’s houses of worship applies to each room with exterior exit, judge finds
Current restrictions on indoor religious gatherings in Montreal means that a maximum of 10 people may congregate in each room of a house of worship, as long as each has a separate entrance or access to the street, the Quebec Superior Court of Justice has ruled in interpreting public health regulations during COVID-19.
Superior Court Justice Chantal Masse’s decision on Feb. 5 ended the legal battle of the Quebec Council of Hasidic Jews and several Jewish congregations, which successfully argued the 10-person limit per synagogue was unacceptable and violated freedom of religion. Their counsel also brought into evidence that in Judaism a minimum of 10 males is required to form a minyan: a representative “community of Israel” for liturgical purposes.
In making the finding in favour of the plaintiffs, Justice Masse engaged in an interpretive exercise, as Quebec’s emergency bylaw restricting indoor religious gatherings didn’t make clear whether the 10-person limit referred to an entire building.
The decision now provides a definition of a place of worship “when it’s time to apply public health restrictions enacted by a provincial government,” says Sylvain Lanoix, a partner in Dunton Rainville LLP in Montreal, who with François Guimont and Aaron Makovka successfully represented the plaintiffs.
There had been some confusion in information given by Quebec’s public health authorities, say Lanoix and Makovka, which the police also relied on in trying to prevent individuals from entering synagogues, and even making arrests there.
“In my view, the case underscores the confusion that's arisen in the community from safety protocols mandated by local governments during this unprecedented pandemic,” says David Elmaleh, a cofounder and partner in RE-LAW LLP, a trial and advocacy law firm in the Greater Toronto Area.
“It might be members of the public religious organizations, those tasked with enforcing the laws and even other tiers of government are often at a loss as to how these laws ought to be interpreted and enforced,” Elmaleh says. “It might be members of the public, religious organizations, those tasked with enforcing the laws, and even other tiers of government are often at a loss as to how these laws ought to be interpreted and enforced.”
The second important aspect of Justice Masse’s decision concerned “freedom of religion, but also the right to the equal protection and equal benefit of the law without discrimination,” Lanoix told Canadian Lawyer, and Masse spent several pages analysing this.
Discrimination can come via an application of a rule, which may be neutral in its form – for example, limiting religious services to 10 attendees – but also from the effect of that rule, Lanoix adds: in this case, an ultraorthodox Jewish community for whom “collective prayers are so important,” but who are restricted from congregating for such a purpose.
Freedom of religion is also guaranteed by the Charter.
The decision will have an impact on other faith groups in Quebec, says Makovka, and the judge makes clear in her decision that it applies to all religions. ”We’ve received praise from a lot of Christian and Muslim groups, who are able now to have more than a group of 10” worshippers in a house of worship at once, using separate rooms such as chapels and meeting rooms in addition to the main sanctuaries, for example.
Prior to this decision, other religious groups had complained of the restrictions – particularly in Montreal, which is in the pandemic “red zone.”
“Christian groups have been demonstrating in Quebec by the hundreds,” Makovka says, protesting that the ability to congregate for religious reasons should be considered an essential service. Liquor commission stores and funeral homes remain open, he adds, without the same restrictions.
“Nobody’s going to argue that there’s a pandemic,” he adds, “but you have to be able to look at it globally, … and say, ‘what is allowed? And what's the logic behind it?’
Outside of Quebec, the Superior Court of Justice decision should remind public health authorities across Canada that -- even during a pandemic, during which a government has imposed limitations on gatherings – they cannot issue a directive which changes the terms of a government decree (in this case, the Quebec legislature’s order limiting gatherings).
The decision is also a reminder that any restriction regarding fundamental rights, such as freedom of religion, has to be written carefully, says Lanoix. “I think this decision sent a strong signal to every government authority,” that public health measures put into place “do not have disproportionately discriminatory effects on certain religious groups that cannot be justified under the Charter,” he adds.
“Among all the other exception that apply, and other services that qualify as essential, there should be a room for a place of worship.”