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Canadian legal group: Catholic bishops may be ‘engaging in discrimination’ in forcing faithful to wear masks

‘It is unclear on what basis a Catholic Church can require someone who is legally exempt ... to put on a mask, or to show a doctor’s note when secular authorities do not require this.'
Fri Dec 18, 2020 - 4:55 pm EST
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December 18, 2020 (LifeSiteNews) – A leading Canadian legal advocacy group says the country’s Catholic bishops may be “engaging in discrimination” in imposing COVID-19 protocols on the faithful such as mask mandates and requiring medical proof for an exemption that go above and beyond the rule of law.

LifeSiteNews reached out to the Justice Center for Constitutional Freedoms (JCCF) for comment on COVID-19 protocols put in place, specifically by two Ontario bishops.

Bishop Ronald Fabbro of the Diocese of London released updated COVID protocols for his diocese on Dec. 1 that require the following:

  • Those seeking an exemption from wearing a face mask while at church must provide “evidence” for such an exemption to the pastor.
  • Despite having an exemption, they should, nevertheless, “wear a mask but only to enter and exit the church unless a documented disability prevents them from doing so even briefly.”
  • Despite having an exemption, they “must wear a mask for the brief period of receiving Communion when approached by the minister unless their disability prevents them.”

Bishop Douglas Crosby of the Diocese of Hamilton released COVID protocols for his diocese in a Dec. 4 memorandum that requires the following:

  • That clergy and church volunteers “enforce” mask-wearing rules upon parishioners
  • That clergy may require that those seeking an exemption from the mask-wearing rule provide “evidence” of an exemption.
  • That people who have such an exemption are, nevertheless, required to wear a mask “in order to receive Communion.”

Protocols such as these go far beyond the requirements demanded by Ontario’s Ministry of Health, health units, and local bylaws.

Ontario’s Ministry of Health states on its website on a page titled Face coverings and face masks (updated November 20) that people in the province when they go out of their homes “must use a face covering (non-medical mask, such as a cloth mask) in public indoor spaces and whenever physical distancing is a challenge.”

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The policy, however, states that citizens “do not need to wear a face covering” if they “have a medical condition that inhibits your ability to wear a face covering.” The policy makes it clear residents of Ontario “do not need medical documentation to support any of the exceptions.”

JCCF president John Carpay and Litigation manager Jay Cameron responded to the following LifeSiteNews questions regarding the policies of the above bishops:

LifeSiteNews: Are the bishops legally within their rights to ask a citizen in Ontario to provide proof of an exemption from wearing a mask?

JCCF: As a starting point, churches are private organizations to which Human Rights Legislation does not apply when it comes to internal church policies, practices and procedures. For example, churches can legally discriminate against non-members when hiring staff. In contrast, a retail store (depending on the province; depending on municipal bylaw) might be required to honour health exemptions from mask-wearing, and further the retail store might not be legally permitted to demand to see a doctor’s note to evidence the health condition. See answer to #2 for clarification.

Are religious ministers within their rights to require a citizen of Ontario to wear a mask when entering and exiting a church despite having a medical exemption?

Generally, religious officials have discretion over rules, policies, procedures, behaviour or conduct, dress codes, etc. that they impose on their own members inside their own buildings. A Gurdwara (Sikh Temple) can refuse entry to someone who refuses to cover her/his head, for example. A Gurdwara, Mosque or Orthodox Synagogue can insist on separate seating for men and women. However, the Gurdwara requires a head covering because this is a required component of religious worship in the Sikh religion.

In contrast, the Catholic faith does not require anyone to cover their mouth or nose during Mass, or while inside a church. This requirement only comes from the government. The same governmental requirement creates an exception in most places: people do not have to wear a mask if they have a bona fide medical exemption, and most of these secular laws do not require that an exempt person show their doctor’s note. It is unclear on what basis a Catholic Church can require someone who is legally exempt (as per provincial and municipal law) to put on a mask, or to show a doctor’s note when secular authorities do not require this. The Church is arguably engaging in discrimination on the basis of disability, and the church has no bona fide religious requirement for faithful Catholics to wear masks or to require Catholics to produce doctors’ notes to prove they are exempt.

So, apart from a Catholic teaching that requires mask-wearing (and there is none), a bishop arguably cannot compel a medically-exempt person from covering their face during Mass or while inside the church building when the secular laws (which the Justice Centre will be challenging as unjustified and illegal violations of our Charter rights and freedoms) provide for exemptions and (often) specify that the exempt person cannot be required to produce proof.   

A church can refuse entry or participation on the basis of a religious ground. For example, a church can refuse to host a wiccan wedding on church premises because there is a religious imperative that forms the basis for the decision. But if a church says people in wheelchairs cannot go to confession, there would be no religious underpinning they could point to; this would simply be a breach of human rights laws. Churches cannot discriminate on the basis of a health condition, absent a bona fide religious reason or official teaching.

In a similar vein, when the civil authorities protect the privacy of mask-exempt individuals (by stipulating that no person is required to show a doctor’s note) it is likely that churches do not have the authority to disregard that civil law and require mask-exempt individuals to show a doctor’s note, unless that religion teaches that church members or adherents have no privacy rights vis-à-vis church leaders or ministers. Human rights codes don't protect privacy rights, and there's no grounds for a human rights complaint for a breach of privacy.

Is it problematic from a human rights perspective for a bishop to mandate that Ontario citizens wear a mask in order to participate fully in a religious service, such as receiving Communion as part of the service?

Human rights laws are a double-edged sword. If someone successfully uses human rights laws to oppose church leaders’ demands or requirements vis-à-vis masks, that same power can potentially be abused by someone who insists on receiving communion even while not adhering to church teachings on any number of moral or lifestyle issues. Hopefully, the Human Rights Tribunal would be capable of discerning the difference between an actual Catholic teaching and a policy of requiring mask-wearing during Mass. Sadly, Human Rights Tribunals often have a poor track record of defending human rights, and they often have little regard for religious freedom and freedom of expression. Those wishing to invoke the powers of Human Rights Tribunals to fight against church policies that they consider to be unjust should think long and hard about using these legal proceedings to strike down the policies and edicts of bishops.

Are you concerned to see such directives? If so, why?

It’s disappointing to see so many people – including religious leaders – buy into and propagate the false idea that COVID-19 is an unusually deadly killer, when the evidence (including government data and statistics) tells us this is clearly not the case. Those who claim to love truth need to take a hard look at the facts, rather than blindly submit to fearmongering by politicians, media and politically-appointed doctors.

A Catholic source in the Diocese of Hamilton, who has a medical exemption from wearing a mask, told LifeSiteNews that Bishop Crosby’s protocols made him feel like a “second class citizen.”

“When Father read the latest letter from the diocese, that I would have to produce my medical exemption for my condition, it made me feel like a second-class citizen,” the source, who wishes to remain anonymous due to fear of backlash, said.

“I felt ashamed, not welcomed and, frankly, belittled in a place where I am going to seek refuge in the Lord. It’s sad when the secular government respects my dignity more than the bishop. Anywhere else in the country this would be a violation of my human rights. I already struggle with my health, and now this? I will not be returning to any Mass in the Diocese until this gestapo-like practice ceases,” he said.

Another Catholic source in Ontario, who also wishes to remain anonymous, told LifeSiteNews that what the faithful need from their pastors is care, not for them to become the bishop’s bylaw enforcement officers.

“At a time when everyone in the Church is starving for the sacraments, why are the Bishops pushing for their overstressed pastors to become bylaw enforcement officers in their own parishes? How is that pastoral in any way,” she said.

“A church is a sanctuary, a place of refuge. Now churches are becoming ground zero for enforcement of draconian bylaws,” she added.

LifeSiteNews reached out to Bishops Fabbro and Crosby by email and phone to ask if they saw any need to amend their COVID protocols in light of the JCCF’s concerns that they may be discriminatory to Catholic citizens of Ontario in their dioceses.

LifeSiteNews also asked if the Bishops think their dioceses need to issue an apology to Catholic citizens of Ontario in their dioceses for issuing directives that override their right to privacy, make them feel like second-class citizens and unwelcome in their own churches, and that may prove to be discriminatory in a court of law.

Of the two bishops, only Bishop Fabbro’s communications manager responded with the message that “no one is available to comment on this.”

Contact information for respectful communications:

Most Rev. Ronald P. Fabbro, C.S.B.
Diocese of London
1070 Waterloo Street
London, Ontario N6A 3Y2, Canada

Phone for the office of the bishop: 519-433-0658
Use online contact form here.

 

Most Reverend Douglas Crosby, O.M.I., D.D.
Diocese of Hamilton
700 King St W
Hamilton, ON L8P 1C7

Ph: 905-528-7988, ext. 2222.
Email Bishop Crosby using online form here


  bishops, canada, catholic, coronavirus, coronavirus restrictions, covid-19, douglas crosby, exemption, justice centre for constitutional freedoms, mask mandates, masks, ontario, ronald fabbro

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