R. v. Koopman, 2022 BCPC 249 (CanLII)
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2022 BCPC 249 |
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Date: |
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File No: |
AJ06525763 |
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Registry: |
Chilliwack |
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IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
REX
v.
JOHN KOOPMAN
ORAL DECISION ON LIABILITY
OF THE
HONOURABLE JUDGE A.L. ORMISTON
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Counsel for the Crown: |
D. Williams, M. Rankin |
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Counsel for the Defendant: |
P. Jaffe, J. Wells |
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Place of Hearing: |
Chilliwack, B.C. |
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Date of Hearing: |
August 11, 12, 15, 16, 2022 |
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Date of Judgment: |
November 8, 2022 |
[1] I am going to begin today, given the community interest in this matter, by giving some context to the decision I am about to deliver. This decision is about whether Pastor Koopman acted contrary to a COVID-19 related measures order. Regardless of the outcome today a conviction will not be entered because he has filed notice of an intention to challenge the legislation that made such contraventions illegal. The only question being answered today is whether Pastor Koopman organized or hosted an event in Chilliwack, BC on December 6, 2020. If he did not, he will be acquitted and the matter ends. If he did, then a conviction will still not necessarily be entered. This will depend on the outcome of Charter related applications, including Pastor Koopman’s allegation that the law itself is a violation of constitutionally protected rights. If we get to that point, the court will make those decisions on another day.
[2] With respect to the charge alleged on ticket AJ06525763, I accept the following uncontentious evidence. Cpl. Dauphinee attended the Free Reformed Church of Chilliwack, BC on December 6, 2020. He believed that a worship service was going to be held at the church that morning based on information from the church’s public website. The officer’s plan was to attend this service to investigate whether it was an event being held in contravention of the Gathering and Events Order in place at the time. When the officer approached the doors of the church he was met by a man who denied him entry. The officer’s impression was that there was a guest list of sorts, and he was not on it. He could see other people being admitted to the church, and also some being turned away. He could see hand sanitizer and masks that appeared to be available to attendees just inside the building.
[3] Cpl. Dauphinee waited outside for an hour or so and then counted approximately 39 people leave the building and go to cars in the church parking lot. They were wearing masks and were generally in small groups consistent with families.
[4] The officer later downloaded a video recording from the website sermon.com that he believed to have been taken inside the church on December 6, 2020. Pastor Koopman’s evidence confirms this video recorded the sermon he delivered in the church that day. The video recording begins with a man who is not Pastor Koopman saying “welcome to church” and leading what he refers to as a “pre-service” hymn. Pastor Koopman then delivers a sermon to people who cannot be seen but are at times heard singing.
[5] Pastor Koopman agrees there was a congregation of people in the church for his sermon that day. He also acknowledges in his evidence that the gathering on December 6, 2020 was a worship service, which were the precise words he used to describe the gathering during the sermon as well.
[6] During the sermon Pastor Koopman directly addresses the controversy of gathering in person to worship at that time. As he said then, and as he explained in his testimony during this trial, coming together to serve God is a compulsion - a divine call that cannot be ignored or superseded by laws of the state. In Pastor Koopman’s words, “when we cannot meet together, we cannot meet with God.”
[7] Pastor Koopman denies having organized or hosted the worship service in question. He agrees, however, that as the pastor he maintains a leadership role within the church. From an ecclesiastical perspective Pastor Koopman explains how he is an integral part of the church leadership which consists of elders, deacons and a pastor.
[8] From a legal perspective, Pastor Koopman is also a leader in the church. He is a director of the society under which the church is registered. In fact, he is currently the chairman of this board. Pastor Koopman is not certain he was the chairman back in December 2020, however there is no doubt that at the relevant time he (along with other elders and deacons) was a member of the governing body, either as a director or a chairman.
[9] Pastor Koopman adopts the depositions he made in a separate Supreme Court proceeding, and his affidavit has been marked as an exhibit in this trial. This affidavit further describes his role in the church, including advocacy he has done to ensure in-person worship services could continue during the pandemic.
The Law
[10] The Gathering and Events Order in force on December 6, 2020 is entitled: Order of the Provincial Health Officer (Pursuant to Sections 30, 31, 32 and 39(3) Public Health Act, S.B.C, 2008) Gathering and Events – December 4, 2020 (‘the Order’). It is attached as Appendix 1 to this decision.[i] Part A of the Order includes the following prohibition: “No person may organize or host an event except as provided for in this Order.”
[11] As a provincial regulatory offence under the Public Health Act, a contravention of this Order is presumed to be one of strict liability, for which the defence of due diligence is available (R. v. Sault Ste. Marie, 1978 CanLII 11 (SCC), [1978] 2 S.C.R. 1299). The Order contains no language that would indicate subjective mens rea must be established, as it must be, in charges under the Criminal Code, for example. The elements of the offence that Crown must prove beyond a reasonable doubt in this case are: (i) identity of the accused, (ii) date and jurisdiction of the offence, (iii) that an “event” as defined by the Order occurred, and (iv) that Pastor Koopman organized or hosted that event.
[12] The Order defines an “event” as: “… an in-person gathering of people in any place whether private or public, inside or outside, organized or not, on a one-time, regular or irregular basis …” The statutory definition includes a non-exhaustive list of gatherings that constitute an event. This list expressly includes a “worship or other religious service.”
[13] The Order also defines an “organizer” as: “the person responsible for organizing an event and the person who hosts an event.” While this definition establishes that a host may be considered an organizer, it is clear from the wording of the Order in Part A that one can be liable as an organizer or a host. A “host” is not defined in the legislation.
[14] The Order goes on in Part B to allow for certain permitted events, provided they comply with other provisions. This part provides a limited list of permitted events, which are: “a support group meeting, a meal provided without charge to people in need, a wedding, a baptism, a funeral or a program for children or youth.”
[15] A support group is defined in the order as: “a group of people who provide support to one another with respect to grief, disability, substance use, addiction or another psychological, mental of physical health condition.”
The Issues
[16] The issues to be decided are as follows:
Was the activity in the church on December 6, 2020 an “event” as defined in Section A of the Order?
If so, was Pastor Koopman an organizer or host of this event?
If so, was the activity inside the church a permitted event as defined in Section B of the Order, such as a support group?
If so, did the permitted event comply with the provisions in Part B of the Order?
Was the Activity in the Church a Prohibited “Event”?
[17] There is no doubt that an in-person gathering of people occurred at the Free Reformed Church of Chilliwack on December 6, 2020. This is clear from the evidence of Cpl. Dauphinee, it is consistent with the video recording filed as an exhibit, and it is confirmed by the evidence of Pastor Koopman who was personally in attendance. This evidence is sufficient for me to find that an “event” as defined by the order occurred on the date in question.
[18] I also find that Crown has proven this event was a worship service. I pause here to note, this specific fact is not an essential element of the offence. However, given the legislation was in its infancy and rapidly changing, I note for the sake of clarity that there can be no question that prohibited events included “worship and other religious services.” Pastor Koopman testified that what happened in the church on December 6, 2020 was a worship service, although he said it could also meet the definition of “support group” in the Order. Nevertheless, it is clear from the totality of Pastor Koopman’s evidence that he considered what happened on December 6th to be a worship service. At several points in his testimony Pastor Koopman distinguished between what happens in the church on “Sunday mornings” and support groups that the church engages. The video recording is also consistent with the conclusion that those involved understood it at the time to be a worship service.
[19] I will come back to this issue later when I consider whether this event was a permitted event as defined in the Order; however, to answer the preliminary question of whether there was an event on December 6th, it matters not if it was a worship service or a support group. The Order creates broad prohibitions on all events in Section A. Some of those same events (such as weddings and funerals) are also defined as permitted events in Section B provided they meet certain requirements. I find the Crown has established beyond a reasonable doubt there was an “event” in the church on December 6, 2020.
Did Pastor Koopman Organize/Host the Event?
[20] Pastor Koopman denies that he organized or hosted the event on December 6, 2020. In submissions Crown invites the Court to accept the defence evidence, essentially submitting that Pastor Koopman’s view that he did not organize or host the event is an erroneous interpretation of his own actions. While the Crown and defence differ on the scope of how an organizer or host should be defined, this is not a case where Crown has challenged the credibility or reliability of the defence evidence. I agree that Pastor Koopman is an entirely honest witness. He was forthright and testified freely about matters that would have gone unproven had he remained silent.
[21] Pastor Koopman was not specifically asked in direct examination who did organize or host the gathering that day. He does not resile from the fact that he was (in his words) “part of” worship services and the work that goes into holding them. However, he explains that the pastoral role is not one of administrative organization. For instance, he cannot make the ultimate decision to convene or cancel a worship service. Pastor Koopman describes aspects of how services were organized during the pandemic, including hygiene measures, limited invitations to attend, and seating arrangements. While Pastor Koopman often used the word “we” when describing how the church took careful steps to ensure COVID-19 was not spread during in-person gatherings, he also testified that he was not the person responsible for these organizational tasks.
[22] Without clearly identifying an organizer or host for the event, Pastor Koopman spoke in general terms about the structure of his church’s leadership, which consists of elders, deacons and himself as a pastor. I rely on Pastor Koopman’s evidence in concluding that a pastor is the spiritual leader of this church. Pastor Koopman’s description of a pastor as a “shepherd” indicates the responsibility of his position. This engages his training as a counsellor and entails a broad responsibility for tending to the well-being of others. In addition, Pastor Koopman is “the one who communicates the word of God,” and “leads [the congregation] through the elements of worship.”
[23] Pastor Koopman explains how the pastor is intentionally removed from the administrative work of operating a church. There is a theological reason for this division of power, as I understand it, essentially allowing the pastor to focus on the sacred rather than the mundane. It is the deacons and elders who occupy priestly offices related to administration and authority within the church. In simplified terms, Pastor Koopman’s role is to preach, to teach, and to shepherd.
[24] He testified that logistics such as whether and when a service will take place is the domain of elders and deacons. He likened a pastor to an employee who fulfills his duties at services that are arranged by others. Pastor Koopman is also accountable to the elders and deacons for the content of the sermons he delivers. That said, I cannot conclude from Pastor Koopman’s evidence that he is in fact an employee of the church. In addition to being a pastor, he also holds the position of an elder and a director of the legal entity of the church.
[25] Crown submits the court can follow various different pathways to finding liability as an organizer.
[26] I will begin with Crown’s position on liability as a director. Crown submits that if the church organizes or hosts services, as the public sign indicates they do, any one or all of the legal directors of the church can be held liable. Crown has not provided authority to support this position. Defence has not provided authorities either, but disputes that Pastor Koopman is automatically liable on this basis.
[27] The law around legal liability of society directors in this province is not straightforward. In other cases of strict liability offences, directors have been found to be liable, however in those cases director’s liability flows from other statutes that makes their liability clear. (See R. v. A & A Food Ltd., 1997 CanLII 2163 (BC SC) para. 4, Alpha Manufacturing Inc. v. HMTQ, 2005 BCSC 773 at para. 212.) I have not been referred to any such authority in this case, and cannot find in this case that Pastor Koopman is automatically liable as a member of director of the society.
[28] Crown also submits that the extent of Pastor Koopman’s participation in the worship service, combined with the nature of his leadership role in the church is sufficient to establish that he assumed organizational responsibilities for the event.
[29] I agree with the Crown submission that liability as an organizer does not require proof that an accused was the primary organizer, or the only organizer. The question is whether Pastor Koopman assumed any organizational responsibilities for the December 6th event. The direct evidence of Pastor Koopman’s involvement in the December 6th event is that he crafted and delivered the sermon at a worship service. Do these actions and decisions make him responsible, at least in part, for the organization of the event itself?
[30] The Oxford English Dictionary defines ”organize” as follows: “1. Arrange something in a systemic way, or 2. Make arrangements or preparations for an event or activity.” In my view this definition connotes making decisions and implementing the who, what, where or when of an event. Pastor Koopman undoubtedly planned the content of the sermon, which was essentially what occurred at the event. The video evidence is consistent with Pastor Koopman exercising his role as a pastor by leading the congregation in worship. However, the question of who arranged or planned for the fact that the gathering would be a worship service was not clearly established in the evidence. Pastor Koopman’s evidence leaves open the inference that this kind of planning was the obligation of others.
[31] In deciding whether Pastor Koopman’s actions amount to organization, it is instructive to look more broadly at the Order to define “organizing.” I agree with Crown’s submission that the language and legislative scheme of the Gathering and Events Order supports a broad reading of the prohibition in question. The Order creates a very expansive prohibition on in-person gatherings, but for a short list of enumerated activities. The preamble to the Order uses strong language about the “urgent” and “immediate” need for action to reduce the spread of COVID-19. It is clear that this legislation was drafted as an emergency remedial measure in response to exceptional circumstances of a worldwide pandemic.
[32] Nevertheless, within the Order legislators have intentionally distinguished between liability for those who are patrons, and those who organize or host events. This distinction is the core issue before the Court today. Even applying a broad interpretation of what constitutes an organizer or host, the difference between these two ways of participating in an event cannot be overlooked.
[33] A patron is someone who merely attends or participates in an event, and this attracts a much lower financial penalty than being an organizer. Again, the definition of a patron in the Order provides a non-exhaustive list of examples. Included in the list of patrons is: “leader or presenter at a meeting,” “performers and presenters” and “officiants” at weddings, funerals, or baptisms. There is nothing preventing someone who meets the definition of an organizer or host from also attending or participating in an event. However, it is clear that if someone takes on the role of an organizer/host, they cannot be a considered a patron. The definition in the Order addresses this prospect by specifically stating that a patron cannot be someone who “hosts a gathering.”
[34] Defence counsel submits that the extent of Pastor Koopman’s participation on December 6th is no different than a leader or presenter at a meeting. Also, the order specifically allows officiants of enumerated ceremonies that often occur in a church to be patrons (provided they have not also participated in hosting). What is distinguishable in my view, between organizers and these examples of patrons, is that while patrons may plan and arrange the content of what primarily occurs at the event, they do not necessarily organize the event itself.
[35] Particularly in light of this contextual analysis of what constitutes organizational responsibilities, I find the fact that Pastor Koopman prepared, arranged and decided on the contents of a sermon delivered at the worship service is not on its own enough to prove that he went beyond being a patron and into the category of an organizer.
[36] However, there is additional evidence that Crown submits is relevant to this analysis, in particular Pastor Koopman’s role in the church’s leadership and the advocacy he has undertaken to ensure in-person worship could continue during the pandemic. Ultimately, I find these are strong examples of the extent of Pastor Koopman’s leadership in the church, but not necessarily capable of proving that he organized the event in question, particularly in light of his express denial that he acted in such a role on December 6th.
[37] I agree that on other occasions, such as in his direct communications with the public health officer, Pastor Koopman’s involvement can be considered organizational. Such actions are consistent with arranging or planning for future in-person worship services. Pastor Koopman’s interactions with authorities about holding in-person worship services is also consistent with his evidence that he holds the position of an elder, and not only a pastor.
[38] If Pastor Koopman’s advocacy for in-person gatherings had pre-dated the worship service in question, he could reasonably be found to have arranged or planned for the event. On the facts before me, however, the event pre-dates the conduct that could be considered organizational. There were some communications between Pastor Koopman and local police before December 6th, however I have not heard clear details about this and it appears to have been the police trying to persuade the church not to contravene the Order by holding a worship service. What remains is Pastor Koopman’s specific denial that he was involved in organizing the December 6th event.
[39] I do not find Pastor Koopman’s denial to necessarily be inconsistent with him also being a leader in the church. Not every leader is an organizer. This must be a fact specific inquiry. And before me is Pastor Koopman’s unequivocal denial that he was an organizer.
[40] While Crown does not challenge his evidence, they do emphasize that organizational responsibilities can be shared and that Pastor Koopman frequently uses the word “we” in referring to the organizational work at the church. In my view his use of the word “we” is a reflection of the fact that he, like the members who did perform organizational tasks, are all part of the church. His inclusive language makes sense and is not at odds with his evidence that he was not the one personally responsible for organizing the event in question.
[41] That said, Pastor Koopman was candid in clarifying that he is an elder as well as a pastor, and is involved with the church holding worship services generally. Can it be inferred from this body of evidence that Pastor Koopman must have participated in the organization of the December 6th event? It is not an unreasonable inference to be drawn from the totality of the evidence. However, it is not the only logical or reasonable inference. Especially when I consider Pastor Koopman’s unchallenged testimony that he did not participate in organizing this particular service beyond preparing and delivering the sermon, I am left with a reasonable doubt about whether Pastor Koopman organized the event on December 6th and I would not find him guilty on that basis.
[42] Finally, Crown submits that Pastor Koopman is liable as a host of the December 6th event. The term “host” is not defined in the legislation. The Oxford English Dictionary definition of host includes the following relevant portions:
1. A person who receives or entertains guests;
2. The presenter of a television or radio programme;
3. A place or organization that holds and organizes an event to which others are invited.
[43] The common usage of the word “host” involves the extension of hospitality to a person or group of people. Both this meaning of “host” as well as its context in the legislation lead me to find that to be liable, one must do more than simply be hospitable. In the context of a worship service for example, any person in attendance may act in a welcoming way towards others. To act in the capacity of a host, one must go beyond what the legislation defines as a patron.
[44] Given what legislators have specifically included in the definition of “patron”, I find a host must do more than present something at a gathering, even if that presentation is the defining purpose of the event. I have also considered that while officiants at certain ceremonies (provided they are not acting as hosts) are expressly defined as patrons, officiants at worship services are not included in this list. Furthermore, worship services are specifically identified as prohibited events. Since the examples of patrons in the Order are also not an exhaustive list, it remains possible that an officiant at a worship service could be a patron.
[45] Ultimately, I can only conclude that determining whether an officiant at a worship service is a patron or a host must be a fact specific inquiry. The court is in no position to speculate or take judicial notice about the role of a leader at any given worship service. Findings in this regard must be rooted in the evidentiary record before the court.
[46] In this case that evidence includes a recording of what occurred on December 6, 2020. By virtue of Pastor Koopman’s evidence which I reviewed already, the Court has been provided information about the organizational structure of the church and his place within it. Having benefited from a review of this evidence, I find that Pastor Koopman did more than simply occupy or present to those gathered in the church December 6th. I find that Pastor Koopman was part of holding this event, whether he arranged for it or not. He can fairly be described as having received the people gathered at the church that day, even if his ability to do so was assisted by others and subject to oversight. On the evidence before me I find that Pastor Koopman was not simply invited to attend as a presenter, or to lead a meeting, he was part of the governing body of a church whose primary purpose as stated in their registration as a society is to establish and maintain a place of worship. Leading worship is specifically Pastor Koopman’s responsibility.
[47] Nor is the evidence consistent with Pastor Koopman being retained to attend for this one occasion on December 6th, such as an officiant at a specific ceremony. In contrast, Pastor Koopman is a member of the church leadership that hosts worship services. He is an integral part of the entity offering the event. He demonstrates his role as a host during his sermon by promoting in person gathering to worship - essentially extending the invitation to continue to attend. Pastor Koopman explains that he functions together with the other elders and deacons when it comes to holding a service. In the context of his evidence explaining the organization of a worship service Pastor Koopman acknowledges that he is a “part of it,” while at the same time clarifying that he does not make the administrative or organizational decisions.
[48] On the specific facts of this case, I find that Pastor Koopman did more than attend and participate. He did more than lead the worship service that day. He was part of the group of people who organized this event, even if he did not assume specific organizational responsibilities himself. As such he received guests to the worship service in question. It is not difficult to imagine situations where patrons, such as a leader at a meeting or an officiant at a wedding also welcomes or informally receives guests to gather. A patron attracts liability merely by attending, even if it is to perform an essential function of the gathering. In my view, the distinction that emerges from the definitions in the Order is that a patron remains removed from the business of hosting the event over which they preside.
[49] In my view, liability as a host is different from an organizer in the sense that a host does not necessarily have to deal with the logistical planning for an event. However, a host in some way provides for the comfort and well-being of their guests even if they do not involve themselves with making the necessary arrangements. This is consistent with Pastor Koopman’s self-described role within the church. As he explains it, the role of a preacher is to meet various needs of those gathered. This support can be spiritual, or it can be quite practical in terms of welcoming and encouraging new members or providing for basic things such as food or gas for someone’s car. This evidence illuminates the breadth of a pastor’s responsibility in the church, as well as the extent of Pastor Koopman’s role at a worship service in receiving and meeting the needs of those gathered.
[50] I find Crown has established beyond a reasonable doubt that Pastor Koopman was a host of the event on December 6, 2020. He may not have been the only host, but he was one. Proving mens rea to a criminal standard is not required in this case. I am mindful that Pastor Koopman does not consider himself to have acted as a host at the worship service on December 6, 2020, and in fairness, this was very new legislation at the time that does not explicitly define what it means to “host”. Nevertheless, given police warnings, I find Pastor Koopman was well aware that worship services were prohibited by the Order, and I find that he was in a position in the church to influence others. Pastor Koopman’s conscience dictated that he must continue to lead in-person worship services on behalf of the church and encourage others to attend, and in so doing he has violated the Order by hosting an event.
Was this a Permitted Event?
[51] The Order allows some of the events listed in Section A to occur in specific circumstances. A worship or other religious service is not one of them. Defence counsel fairly submits that there are many similarities between a worship service and permitted events such as a support group, wedding, funeral, baptism or children’s program. Pastor Koopman testified about his role in facilitating support groups such as AA or children’s programs at the church, but he testified that the event on December 6, 2020 was a worship service. The record of what occurred on December 6th also shows that the people in attendance on December 6, 2020 referred to it as a worship service at the time. Pastor Koopman described the role the church plays in support groups for our community, and the fact that a worship service could meet the definition of a support group in the Order. However considering Pastor Koopman’s evidence as a whole it is clear that his participation with support groups is something different from worship services.
[52] While a worship service undoubtedly provides support to people, legislators have differentiated between these gatherings in the wording of the Order. It would be an absurd interpretation of the legislation to include worship services in the meaning of support group because the drafters of the Order have distinguished between the two events and made one permissible and not the other. I cannot find that the December 6th event was permitted by the Order.
[53] Even if I could find on the available evidence that the event on December 6th meets the definition of a support group, hosting a permitted event will still attract liability if it is not in compliance with the requirements in the Order. The extent to which the Free Reformed Church of Chilliwack went to ensure the safety of their members is indeed impressive and meets most of the requirements of the Order for permitted events. However, a defendant must be found liable unless the permitted event was in total compliance with the Order.
[54] I accept that the church took significant measures to respond to the risk of COVID-19 infection, however detailed evidence of a COVID-19 safety plan has not been tendered nor has a designated organizer been specifically identified. I am mindful that the order allows that the designated “organizer” can also be a host. However, on the specific facts before me I cannot infer that Pastor Koopman was the designated organizer, particularly given his evidence that he was intentionally removed from such duties. Pastor Koopman testified that generally the church ensured all COVID-19 prevention measures were met, while earnestly acknowledging they may have been imperfectly applied. The requirements in Part B of the Order are detailed and specific. Based on the evidence I have heard, information about some of the pre-requisites set out in that section are absent and I cannot find the event was in compliance with the Order.
Conclusion
[55] I am making a finding of guilt on ticket AJ06525763, however a conviction will not be entered at this time, pending Pastor Koopman’s challenges to the constitutionality of the Order itself.
___________________________
The Honourable Judge A.L. Ormiston
Provincial Court of British Columbia
APPENDIX “A”
ORDER OF THE PROVINCIAL HEALTH OFFICER
(Pursuant to Sections 30, 31, 32 and 39 (3) Public Health Act, S.B.C. 2008)
GATHERINGS AND EVENTS – December 4, 2020
The Public Health Act is at: http://www.bclaws.ca/civix/content/complete/statreg/08028/?xsl=/templates/browse.xsl
(excerpts enclosed)
TO: RESIDENTS OF BRITISH COLUMBIA
TO: OPERATORS AND OCCUPANTS OF VACATION ACCOMMODATION
TO: OWNERS AND OCCUPANTS OF PRIVATE RESIDENCES
TO: OWNERS AND OPERATORS OF PLACES
TO: PERSONS WHO ORGANIZE EVENTS
TO: PERSONS WHO ATTEND EVENTS
TO: PERSONS WHO OWN, OPERATE OR ARE PASSENGERS IN PERIMETER
SEATING VEHICLES OR PERIMETER SEATING BUSES
TO: MEDICAL HEALTH OFFICERS
WHEREAS:
1. On March 17, 2020 I provided notice under section 52 (2) of the Public Health Act that the transmission of the infectious agent SARS-CoV-2, which has caused cases and outbreaks of a serious communicable disease known as COVID-19 among the population of the Province of British Columbia, constitutes a regional event as defined in section 51 of the Public Health Act;
2. The SARS-CoV-2 virus, an infectious agent, can cause outbreaks of COVID-19;
3. A person infected with SARS-CoV-2 can infect other people with whom the infected person is in direct contact through droplets in the air, or from fluid containing SARS-CoV-2 left on surfaces;
4. Social interactions and close contact between people are associated with significant increases in the transmission of SARS-CoV-2, and increases in the number of people who develop COVID-19 and become seriously ill;
5. Social interactions and close contact resulting from the gathering of people and events promotes the transmission of SARS-CoV-2 and increases the number of people who develop COVID-19 and become seriously ill;
6. With schools and post-secondary institutions operating and the change of seasons bringing cooler weather, people are interacting more and spending more time indoors which increases the risk of the transmission of SARS-CoV-2 in the population and the number of people who develop COVID-19 and become seriously ill;
7. Seasonal and other celebrations and social gatherings in private residences and other places have resulted in the transmission of SARS-CoV-2 and increases in the number of people who develop COVID-19 and become seriously ill;
8. There has been a rapid increase in COVID-19 cases throughout the province which has resulted in increasing and accelerating numbers of people being hospitalized and admitted to critical care, outbreaks in health-care facilities and deaths;
9. For certainty, this Order does not apply to the Executive Council, the Legislative Assembly; a council, board, or trust committee of a local authority as defined under the Community Charter, when holding a meeting or public hearing without members of the public attending in person; the distribution of food or other supplies to people in need; health or social services provided to people in need, such as warming centres; an episodic market at which only food for human consumption is sold; health care related events such as immunization clinics, health authority COVID-19 testing centres and blood donation clinics, court sittings wherever they occur; workers at a worksite when engaged in their work activities; workers living at a work camp; students, teachers or instructors at a school operating under the School Act [RSBC 1996] Ch. 412, the Independent School Act [RSBC 1996] Ch. 216 or a First Nations School, or a post-secondary educational institution when engaged in educational activities; students and instructors when engaged in occupational training activities which cannot be provided virtually by their nature; individuals attending regularly scheduled classes or practices in a recreation centre, other than indoor group high intensity fitness activities, indoor group low intensity fitness activity or adult team sport; customers in a mall or retail or service business when engaged in shopping activities or seeking services; a volunteer work party engaged in gardening, vegetation removal, trail building or a similar outside activity; or the use of any place for local government, provincial or federal election purposes.
10. For further certainty, this Order applies to private residences, vacation accommodation and private clubs and organizations;
11. I have reason to believe and do believe that
(i) the risk of an outbreak of COVID-19 among the public constitutes a health hazard under the Public Health Act;
(ii) there is an immediate and urgent need for focused action to reduce the rate of the transmission of COVID-19 which extends beyond the authority of one or more medical health officers;
(iii) coordinated action is needed to protect the public from the transmission of COVID-19
(iv) and that it is in the public interest for me to exercise the powers in sections 30, 31, 32 and 39 (3) of the Public Health Act TO ORDER as follows:
THIS ORDER
REPEALS AND REPLACES MY ORDER OF DECEMBER 2, 2020 WITH RESPECT TO GATHERINGS AND EVENTS
RE-CONFIRMS MY ORAL ORDER OF NOVEMBER 19, 2020 WITH RESPECT TO GATHERINGS AND EVENTS AND PERIMETER SEATING VEHICLES AND PERIMETER SEATING BUSES;
MY ORAL ORDER OF NOVEMBER 19, 2020 REMAINS IN EFFECT WITH RESPECT TO WORKPLACE SAFETY AND TRAVEL RELATED TO TEAM SPORT;
Definitions in this Order:
“adult team sport” means an organized and structured activity involving a number of participants, including basketball, cheerleading, combat sports, floor hockey, floor ringette, road hockey, ice hockey, ringette, netball, skating, soccer, curling, volleyball, indoor bowling, lawn bowling, lacrosse, hockey, ultimate, rugby, football, baseball, softball;
“affected area” means British Columbia:
“banquet hall” means a stand-alone premises built for the purpose of holding large social events, including banquets, generally involving many hundreds of people. It does not include the premises associated with a private club, hotel, house of worship, recreation centre, sports organization or other non- profit organization with a community, educational, historical, sports or similar purpose, or owned or operated or otherwise controlled by a government;
“children or youth” refers to persons under nineteen years of age;
“event” refers to an in-person gathering of people in any place whether private or public, inside or outside, organized or not, on a one-time, regular or irregular basis, including drive-ins and drive-throughs, such as to see a display or to drop off items; events; meetings and conferences; a gathering in vacation accommodation, a private residence, banquet hall or other place; a gathering of passengers; a party; a worship or other religious service; ceremony or celebration; , a ceremony; a reception; a wedding; a baptism; a funeral; a celebration of life,; a musical, theatrical or dance entertainment or performance; a live solo or band musical performance; a disc jockey performance; strip dancing; comedic act; art show; magic show; puppet show; fashion show; book signing; reading; recitation; display, including a seasonal light display; a movie; film; lecture; talk; educational presentation (except in a school or post-secondary educational institution); auction; fund raising benefit; contest; competition; quiz; game; rally; festival; presentation; demonstration; adult team sport; indoor group high intensity fitness activity; indoor group low intensity fitness activity; exhibition; market or fair, including a trade fair, agricultural fair, seasonal fair or episodic indoor event that has as its primary purpose the sale of merchandise or services such as Christmas craft market, home show antique fair and similar activities; and, for certainty, includes a gathering preceding or following another event, but does not include a gathering or event which is permitted under, and in compliance with, another Order;
“group high intensity fitness activity” means a group fitness activity which causes a sustained and accelerated rate of breathing and/or involves close contact including hot yoga, spin, aerobics, bootcamp, dance classes, dance fitness, circuit training, and high-intensity interval training;
“group low intensity fitness activity” means a group fitness activity which does not cause a sustained and accelerated rate of breathing or involve close contact with another person, including yoga, Pilates, stretching, Tai-Chi, light weightlifting, stretching or strengthening;
“occupant” means an individual who occupies vacation accommodation or resides in a private residence;
“organizer” means the person responsible for organizing an event and the person who acts as host at an event;
“owner” includes an occupier, operator or person otherwise responsible for a place;
“passenger” means a person in a perimeter seating vehicle or a perimeter seating bus, other than the driver or a mechanic;
“patron” means a person who attends or is a participant in an event, including a passenger, an occupant, a person other than an occupant who is present in a private residence or vacation accommodation, a leader or presenter at a meeting, a officiant at a wedding, baptism or funeral, volunteers at an event, vendors, exhibitors, performers and presenters, but does not include a person who hosts a gathering, event staff or staff in a place subject to the Food and Liquor Serving Premises order;
“perimeter seating” and “perimeter seating bus” have the same meaning as in the Passenger Transportation Regulation made under the Passenger Transportation Act [SBC2004] Ch. 39;
“physical barrier” means a barrier which is designed, installed and maintained in accordance with WorkSafeBC guidelines at https://www.worksafebc.com/en/resources/health-safety/information-sheets/covid-19-health-safety-designing-effective-barriers?lang=en;
“a place” includes areas both inside and outside, an area open to the public and an area not open to the public, a banquet hall, private residence, vacation accommodation,
a perimeter seating vehicle or a perimeter seating bus;
“private residence” includes areas both inside and outside;
“program for children or youth” means a structured educational, music, art, drama, recreational, outdoor fitness, or social activity supervised by an adult and provided for children or youth, but does not include a performance, recital or demonstration by children or youth;
“sport for children or youth” means an activity which is delivered by a provincial sport organization or a local sport organization;
“support group” means a group of people who provide support to one another with respect to grief, disability, substance use, addiction or another psychological, mental or physical health condition;
“transport” means for the purpose of conveying a passenger, but does not include conveying a passenger:
a. to and from an event, except conveying a worker for the purpose of working at an event;
b. for the purpose of social interaction or another type of event in a perimeter seating vehicle or a perimeter seating bus; or
c. from a place which is subject to the Food and Liquor Serving Premises Order;
“vacation accommodation” means a house, townhouse, cottage, cabin, apartment, condominium, mobile home, recreational vehicle, hotel suite, tent, yurt, houseboat or any other type of living accommodation, and any associated deck, garden or yard, that is not the occupant’s primary residence;
A. EVENTS
1. No person may permit a place to be used for an event except as provided for in this Order.
2. For certainty, no person may permit a place that is subject to the Food and Liquor Serving Premises Order to be used for an event, including private events, except as provided for in this Order.
3. No person may organize or host an event except as provided for in this order.
4. No person may be present at an event except as provided for in this Order.
5. For certainty, this Part applies to and prohibits indoor group high intensity fitness activity, and adult team sport in any place.
B. PERMITTED EVENTS
1. A person may permit a place, other than a private residence or vacation accommodation, to be used for, or may organize or host, a support group meeting, a meal provided without charge to people in need, a wedding, baptism or funeral, a program for children or youth or sport for children or youth subject to the provisions of this Part.
2. An owner or organizer must not permit more than fifty patrons to be present at a support group meeting, a meal provided without charge to people in need, or a program for children or youth, or more than ten patrons to be present at a wedding, baptism or funeral.
3. A patron must not be present at a support group meeting or program for children or youth at which there are more than fifty patrons, or at a wedding, baptism or funeral at which there are more than ten patrons.
4. In this section
“event” means a support group meeting, a meal provided without charge to people in need, a wedding, a baptism, a funeral or a program for children or youth;
An event may only proceed if the following conditions are met:
a. there is a COVID-19 safety plan;
b. there is an organizer;
c. access to the event is controlled;
d. there is sufficient space available to permit the patrons to maintain a distance of two metres from one another;
e. the patrons maintain a distance of two metres from one another when standing or sitting, unless they reside together;
f. measures are put in place to prevent the congregation of patrons outside the place,
g. the place is assessed for areas where patrons may congregate, and measures are put in place to avoid congregation;
h. physical devices, markers or other methods are used to guide and assist patrons in maintaining a distance of two metres from other patrons, if they are not seated;
i. if there are tables provided for the use of patrons, no more than six patrons are seated sit at a table, even if they reside together, and there are at least two metres between the backs of the chairs at one table and the backs of the chairs at another table, unless the chairs are separated by a physical barrier;
j. if there is a leader, presenter, officiant, reader or musician, there is a physical barrier between them and other patrons which blocks the transmission of droplets, or there is at least a three metre separation between them and the patrons;
k. if there is a self-serve food or drink station,
i. hand washing facilities or alcohol-based sanitizers are within easy reach of the station;
ii. signs reminding patrons to wash or sanitize their hands before touching self-serve food, drink or other items, and to maintain a two metre distance from other patrons, are posted at the self-serve station; and
iii. high touch surfaces at the station, and utensils that are used for self- serve, are frequently cleaned and sanitized.
l. hand sanitation supplies are readily available to patrons;
m. washroom facilities with running water, soap and paper towels for hand washing and drying purposes, or hand sanitation supplies, are available;
n. there are no spectators at a program for children or youth unless the presence of a spectator is necessary in order to provide care to a child or youth.
5. Subject to the maximum numbers in section 2, the owner of a place in which an event is to be held must calculate the maximum number of patrons who can be accommodated safely during the event taking into consideration the requirements of this Part, and must document this number in the COVID-19 safety plan.
6. The organizer must monitor the number of patrons present and ensure that the number of patrons present does not exceed the maximum number documented in the COVID-19 safety plan.
7. If an event is in a part of a place which is completely separated from the rest of the place, and which has its own entrance and washrooms, there may be additional patrons present in other parts of the place who are not attending the event, if the total number of patrons present in the place does not exceed the maximum number of patrons permitted to be present in the place under the COVID - 19 safety plan. Patrons attending an event in part of a place must not have contact with patrons in another part of the place who are not attending the event.
8. If there are one or more separate premises in a place, there may be an event in each of the premises, as long as
a. patrons attending an event do not have contact with patrons attending an event\ in other premises in the place, or with individuals who are in the place but not in the premises in which the event is being held;
b. there is a separate entrance to each of the premises in which an event is being held; and
c. there are separate washrooms for each of the premises.
9. During an event, a patron who leaves the place in which an event is being held must not be replaced by another patron.
10. Following an event, and during an appropriate interval of time before another event commences, an owner must ensure that:
a. the place is cleaned, sanitized and ventilated while there are no patrons present;
b. there is a sufficient period of time between events to permit a place to be cleaned, sanitized and ventilated without any patrons being present, and patrons leaving one event, do not have contact with patrons arriving for a subsequent event.
11. Patrons must disperse immediately after an event and must not congregate with patrons who are leaving the event or arriving for a subsequent event.
12. The organizer must ensure that the COVID-19 safety plan is complied with and that the conditions and requirements in sections 2, 4, 6, 7, 8, 9, 11, 13, 15 and 16 are met.
13. The organizer must
a. collect the first and last names and telephone number, or email address, of every patron who attends an event;
b. retain this information for thirty days, in case there is a need for contact tracing on the part of the medical health officer, in which case the information must be provided to the medical health officer;
c. and destroy the information after thirty days.
14. If the organizer is not the owner of the place in which the event is held, the owner must be satisfied that the organizer is aware of the conditions and requirements in sections 2, 4, 6, 7, 8, 9, 11, 12, 13 and 15 and 16 and has the capacity to fulfill them.
15. Patrons must not congregate and must comply with
a. the limitation on the number of patrons permitted in a place at the event which they are attending,
b. the distancing and other requirements in sections 4 (e) and (i), and section 11 and
c. a request to provide the information required in section 13.
16. For certainty, no person may permit a place to be used for, or organize or host, a reception or gathering, before or after a wedding, baptism or funeral, unless the people present all reside in the same private residence.
17. For certainty, no person may attend a reception or informal gathering at any place, either before or after a wedding, baptism or funeral, unless the people present all reside in the same private residence.
18. A person may permit a place, other than a private residence or vacation accommodation, to be used for, or may provide, sport for children or youth if the following conditions are met:
a. participants maintain a physical distance of three metres from one another and do not engage in handshaking, high fives, hugging or similar behaviour;
b. the focus is on activities that have a low risk of COVID-19 virus transmission;
c. there are no spectators unless the presence of a spectator is necessary in order to provide care to a child or youth.
19. A person may permit a place, other than a private residence or vacation accommodation, to be used for, or may provide, indoor group low intensity fitness activity if the following conditions are met:
a. I have posted guidelines for indoor group low intensity fitness activities on my website;
b. the person who provides or hosts the indoor group low intensity fitness activity has developed an updated COVID-19 safety plan in accordance with my guidelines; and
c. the COVID-19 safety plan has been posted in a place easily visible to participants.
20. No person may participate in indoor group low intensity fitness activity unless the conditions in section 19 have been met.
C. PRIVATE RESIDENCES AND VACATION ACCOMMODATION
1. No person may host an event at a private residence or vacation accommodation where there is a person present who is not an occupant, except as provided for in sections 2, 5, 6 and 7.
2. A person who is not an occupant may be present at a private residence or vacation accommodation for the purpose of
a. an occupant’s work,
b. being provided with care,
c. a visit by a minor child of an occupant with whom the minor child does not reside on a regular basis,
d. providing assistance, care or services, including care to a child or an adult who requires care, health care, personal care or grooming services,
e. educational programming or tutoring,
f. music lessons,
g. legal and financial services,
h. emergency services,
i. housekeeping and window washing,
j. gardening and landscape services,
k. maintenance,
l. repairs,
m. renovations,
n. moving services,
o. or another purpose that is not social in nature.
3. No person who is not an occupant may be present at a private residence or vacation accommodation, except as provided for in sections 2, 5, 6 and 7.
4. No occupant may be present at an event in a private residence or vacation accommodation if there is any person present who is not an occupant, except as provided for in sections 2, 5, 6 and 7.
5. Despite sections 1, 3, and 4 an occupant who lives on their own may have up to two other persons who are not occupants present at the occupant’s private residence or vacation accommodation for a social purpose, if the other persons are individuals with whom the occupant regularly interacts.
6. Despite sections 1, 3 and 4, if the two persons referred to in section 5 regularly interact with one another, as well as with the occupant, they may be present for social purposes at the same time in the private residence or vacation accommodation of the occupant.
7. Despite sections 1, 3 and 4, a person who lives on their own may be present for social purposes at one private residence or vacation accommodation with more than one occupant, if the person regularly interacts with the occupants of the private residence or vacation accommodation.
D. PERIMETER SEATING VEHICLES AND PERIMETER SEATING BUSES
In this Part
“accommodated safely” means that each passenger is seated at least two metres away from every other passenger, except another passenger with whom the passenger resides in the same private residence.
1. No person may operate, or permit to be operated, a perimeter seating vehicle or a perimeter seating bus in the affected area between the hours of 11:00 PM and 6:00 AM, except for the purpose of maintenance, fueling or a related purpose
2. No person may operate, or permit to be operated, a perimeter seating vehicle or a perimeter seating bus in the affected area between the hours of 6:00 AM and 11:00 PM
a. for a purpose other than
i. maintenance, fueling or a related purpose; or
ii. transport; or
b. with more passengers than can be accommodated safely
3. No person may be a passenger between the hours of 11:00 PM and 6:00 AM.
4. No person may be a passenger between the hours of 6:00 AM and 11:00 PM
a. for a purpose other than transport; or
b. if there are more passengers than can be accommodated safely
E. RELATED MEDICAL HEALTH OFFICERS ORDERS
Recognizing that the risk differs in different regions of the province and that medical health officers are in the best position to assess local circumstances and to determine whether additional or more restrictive steps need to be taken to reduce the risk of the transmission of COVID-19 I FURTHER ORDER:
1. A medical health officer may issue an order further to this Order for the purpose of having the provisions of the order incorporated into this Order. Such an order may add further prohibitions, or impose more restrictive limitations or conditions in the whole or part of the geographic area of the province for which the medical health officer is designated and, subject to section 2, the provisions of the order are incorporated into this Order when posted on my website. For certainty, a contravention of an order of a medical health officer issued further to this Order and posted on my website is a contravention of this Order.
2. While it is in force, a provision in an order made by a medical health officer further to this Order and posted on my website, which adds further prohibitions or imposes more restrictive limitations or requirements than this Order, applies in the whole or part of the geographic area of the province for which the medical health officer is designated, despite the provisions of this Order.
Parts A, except as it applies to indoor group high intensity fitness activity and adult team sport, B, except at it applies to indoor group low intensity fitness activity and C of this Order expire at 12:00 PM on December 7, 2020 unless extended by me; Parts D and E do not have an expiration date.
You are required under section 42 of the Public Health Act to comply with this Order. Failure to comply with this Order is an offence under section 99 (1) (k) of the Public Health Act.
Under section 43 of the Public Health Act, you may request me to reconsider this Order if you:
1. Have additional relevant information that was not reasonably available to me when this Order was issued,
2. Have a proposal that was not presented to me when this Order was issued but, if implemented, would
a) meet the objective of the order, and
b) be suitable as the basis of a written agreement under section 38 [may make written agreements]
3. Require more time to comply with the order.
Under section 43 (6) an Order is not suspended during the period of reconsideration unless the health officer agrees, in writing, to suspend it.
If you fail to comply with this Order, I have the authority to take enforcement action against you under Part 4, Division 6 of the Public Health Act.
You may contact me at:
Dr. Bonnie Henry, Provincial Health Officer
4th Floor, 1515 Blanshard Street
PO Box 9648 STN PROV GOVT, Victoria BC V8W 9P4
Fax: (250) 952-1570
Email: ProvHlthOffice@gov.bc.ca
DATED THIS: 4th day of December 2020
SIGNED: __________________
Bonnie Henry
MD, MPH, FRCPC
Provincial Health Officer
DELIVERY BY: Posting to the BC Government the BC Centre for Disease Control websites.
Enclosure: Excerpts of the Public Health Act.
ENCLOSURE
Excerpts of the Public Health Act [SBC 2008] c. 28
Definitions
1 In this Act:
"health hazard" means
(a) a condition, a thing or an activity that
(i) endangers, or is likely to endanger, public health, or
(ii) interferes, or is likely to interfere, with the suppression of infectious agents or hazardous agents, or
(b) a prescribed condition, thing or activity, including a prescribed condition, thing or activity that
(i) is associated with injury or illness, or
(ii) fails to meet a prescribed standard in relation to health, injury or illness;
When orders respecting health hazards and contraventions may be made
30 (1) A health officer may issue an order under this Division only if the health officer reasonably believes that
(a) a health hazard exists,
(b) a condition, a thing or an activity presents a significant risk of causing a health hazard,
(c) a person has contravened a provision of the Act or a regulation made under it, or
(d) a person has contravened a term or condition of a licence or permit held by the person under this Act.
(2) For greater certainty, subsection (1) (a) to (c) applies even if the person subject to the order is complying with all terms and conditions of a licence, a permit, an approval or another authorization issued under this or any other enactment.
General powers respecting health hazards and contraventions
31 (1) If the circumstances described in section 30 [when orders respecting health hazards and contraventions may be made] apply, a health officer may order a person to do anything that the health officer reasonably believes is necessary for any of the following purposes:
(a) to determine whether a health hazard exists;
(b) to prevent or stop a health hazard, or mitigate the harm or prevent further harm from a health hazard;
(c) to bring the person into compliance with the Act or a regulation made under it;
(d) to bring the person into compliance with a term or condition of a licence or permit held by that person under this Act.
(2) A health officer may issue an order under subsection (1) to any of the following persons:
(a) a person whose action or omission
(i) is causing or has caused a health hazard, or
(ii) is not in compliance with the Act or a regulation made under it, or a term or condition of the person's licence or permit;
(b) a person who has custody or control of a thing, or control of a condition, that
(i) is a health hazard or is causing or has caused a health hazard, or
(ii) is not in compliance with the Act or a regulation made under it, or a term or condition of the person's licence or permit;
(c) the owner or occupier of a place where
(i) a health hazard is located, or
(ii) an activity is occurring that is not in compliance with the Act or a regulation made under it, or a term or condition of the licence or permit of the person doing the activity.
Specific powers respecting health hazards and contraventions
32 (1) An order may be made under this section only
(a) if the circumstances described in section 30 [when orders respecting health hazards and contraventions may be made] apply, and
(b) for the purposes set out in section 31 (1) [general powers respecting health hazards and contraventions].
(2) Without limiting section 31, a health officer may order a person to do one or more of the following:
(a) have a thing examined, disinfected, decontaminated, altered or destroyed, including
(i) by a specified person, or under the supervision or instructions of a specified person,
(ii) moving the thing to a specified place, and
(iii) taking samples of the thing, or permitting samples of the thing to be taken;
(b) in respect of a place,
(i) leave the place,
(ii) not enter the place,
(iii) do specific work, including removing or altering things found in the place, and altering or locking the place to restrict or prevent entry to the place,
(iv) neither deal with a thing in or on the place nor dispose of a thing from the place, or deal with or dispose of the thing only in accordance with a specified procedure, and
(v) if the person has control of the place, assist in evacuating the place or examining persons found in the place, or taking preventive measures in respect of the place or persons found in the place;
(c) stop operating, or not operate, a thing;
(d) keep a thing in a specified place or in accordance with a specified procedure;
(e) prevent persons from accessing a thing;
(f) not dispose of, alter or destroy a thing, or dispose of, alter or destroy a thing only in accordance with a specified procedure;
(g) provide to the health officer or a specified person information, records, samples or other matters relevant to a thing's possible infection with an infectious agent or contamination with a hazardous agent, including information respecting persons who may have been exposed to an infectious agent or hazardous agent by the thing;
(h) wear a type of clothing or personal protective equipment, or change, remove or alter clothing or personal protective equipment, to protect the health and safety of persons;
(i) use a type of equipment or implement a process, or remove equipment or alter equipment or processes, to protect the health and safety of persons;
(j) provide evidence of complying with the order, including
(i) getting a certificate of compliance from a medical practitioner, nurse practitioner or specified person, and
(ii) providing to a health officer any relevant record;
(k) take a prescribed action.
(3) If a health officer orders a thing to be destroyed, the health officer must give the person having custody or control of the thing reasonable time to request reconsideration and review of the order under sections 43 and 44 unless
(a) the person consents in writing to the destruction of the thing, or
(b) Part 5 [Emergency Powers] applies.
May make written agreements
38 (1) If the health officer reasonably believes that it would be sufficient for the protection of public health and, if applicable, would bring a person into compliance with this Act or the regulations made under it, or a term or condition of a licence or permit held by the person under this Act, a health officer may do one or both of the following:
(a) instead of making an order under Division 1, 3 or 4, enter into a written agreement with a person, under which the person agrees to do one or more things;
(b) order a person to do one or more things that a person has agreed under paragraph (a) to do, regardless of whether those things could otherwise have been the subject of an order under Division 1, 3 or 4.
(2) If, under the terms of an agreement under subsection (1), a health officer conducts one or more inspections, the health officer may use information resulting from the inspection as the basis of an order under this Act, but must not use the information as the basis on which to
(a) levy an administrative penalty under this Act, or
(b) charge a person with an offence under this Act.
Contents of orders
39 (3) An order may be made in respect of a class of persons.
Duty to comply with orders
42 (1) A person named or described in an order made under this Part must comply with the order.
(2) Subsection (1) applies regardless of whether the person leaves the geographic area for which the health officer who made the order is designated.
Reconsideration of orders
43 (1) A person affected by an order, or the variance of an order, may request the health officer who issued the order or made the variance to reconsider the order or variance if the person
(a) has additional relevant information that was not reasonably available to the health officer when the order was issued or varied,
(b) has a proposal that was not presented to the health officer when the order was issued or varied but, if implemented, would
(i) meet the objective of the order, and
(ii) be suitable as the basis of a written agreement under section 38 [may make written agreements], or
(c) requires more time to comply with the order.
(2) A request for reconsideration must be made in the form required by the health officer.
(3) After considering a request for reconsideration, a health officer may do one or more of the following:
(a) reject the request on the basis that the information submitted in support of the request
(i) is not relevant, or
(ii) was reasonably available at the time the order was issued;
(b) delay the date the order is to take effect or suspend the order, if satisfied that doing so would not be detrimental to public health;
(c) confirm, rescind or vary the order.
(4) A health officer must provide written reasons for a decision to reject the request under subsection (3) (a) or to confirm or vary the order under subsection (3) (c).
(5) Following a decision made under subsection (3) (a) or (c), no further request for reconsideration may be made.
(6) An order is not suspended during the period of reconsideration unless the health officer agrees, in writing, to suspend it.
(7) For the purposes of this section,
(a) if an order is made that affects a class of persons, a request for reconsideration may be made by one person on behalf of the class, and
(b) if multiple orders are made that affect a class of persons, or address related matters or issues, a health officer may reconsider the orders separately or together.
(8) If a health officer is unable or unavailable to reconsider an order he or she made, a similarly designated health officer may act under this section in respect of the order as if the similarly designated health officer were reconsidering an order that he or she made.
Review of orders
44 (1) A person affected by an order may request a review of the order under this section only after a reconsideration has been made under section 43 [reconsideration of orders].
(2) A request for a review may be made,
(a) in the case of an order made by a medical health officer, to the provincial health officer, or
(b) in the case of an order made by an environmental health officer, to a medical health officer having authority in the geographic area for which the environmental health officer is designated.
(3) If a review is requested, the review is to be based on the record.
(4) If a review is requested, the reviewer may do one or more of the following:
(a) delay the date the order is to take effect or suspend the order, if satisfied that doing so would not be detrimental to public health;
(b) confirm, vary or rescind the order;
(c) refer the matter back to the person who made the order, with or without directions.
(5) A reviewer must provide written reasons for an action taken under subsection (4) (b) or (c), and a person may not request further review of an order.
Offences
99 (1) A person who contravenes any of the following provisions commits an offence:
…
(k) section 42 [failure to comply with an order of a health officer], except in respect of an order made under section 29 (2) (e) to (g) [orders respecting examinations, diagnostic examinations or preventive measures];
[i] I pause to note that part of a Ministerial Order related to Food and Liquor Serving Premises was filed as an exhibit at the request of defence counsel given references they plan to make to it. However, this is not part of the order that includes the prohibition issue.