Saint John church that opposed COVID rules wins appeal, new judge to hear case

The New Brunswick Court of Appeal has allowed an appeal by a Saint John church accused of ignoring the province's pandemic rules.

The three-judge panel ruled that the judge hearing a contempt of court motion against His Tabernacle Family Church and several church officials erred by not recusing himself.

A reasonable, informed person would conclude that a statement made in passing in court by Justice Darrell Stephenson "gives rise to a reasonable apprehension of bias," said Chief Justice Marc Richard, speaking for the panel on Wednesday afternoon after hearing from both sides.

Lawyer Jonathan Martin filed the appeal on behalf of the church, pastor Philip Hutchings and three other church members. He argued that Stephenson should have recused himself from the case, in part because of a comment he made about what constitutes an enclosed indoor space.

Martin argued that Stephenson, the judge hearing the contempt of court motion, had already made up his mind on the issue and did not allow either side to make legal arguments before commenting on whether the tent at the heart of the case constituted a public indoor space.

The Court of Appeal judges had a difficult time characterizing what the comment was, saying it couldn't be thought of as a" decision" or a "ruling" since the comments were made about something that wasn't "properly before the judge or that was argued before the judge."

In fact, Martin said, he hadn't been allowed to speak on it at all.

In the end, Richard said the court would view the comments about the tent as "obiter dicta," meaning they were said in passing by the judge.

The original contempt of court proceeding will now be sent back to the Court of Queen's Bench to be heard by another judge. And because the obiter dicta comments are not legally binding, the new judge will be able to properly decide that issue.

Richard said the Court of Appeal will address costs in the matter when it releases a written version of its oral decision.

What began as a simple $580.50 ticket issued in October for failing to comply with COVID protocols has turned into a complicated legal battle with tentacles extending into three different courts — provincial court, the Court of Queen's Bench, and the New Brunswick Court of Appeal.

While they won this round in the Court of Appeal, Hutchings and the church previously lost another appeal about the original judge hearing the case, Justice Hugh McLellan. Martin had applied to the court to have an undertaking set aside, but that was dismissed last month.

In that decision, Richard said the three-judge panel determined that the undertaking Hutchings signed on Oct. 22 — after spending a week in jail on remand — was "supplanted" by the consent order he signed on Oct. 29. Both are legal documents in which he agreed to abide by a number of conditions.

So in the end, the result was the same as what Martin was seeking — Hutchings and the church are no longer bound by that undertaking.

The history of the case

His Tabernacle Family Church, which had been operating in the former Holy Trinity Church on Rockland Road, first came to the province's attention last September, when Hutchings posted on social media that his church would not be following a number of COVID protocols.

On Sept. 24, the province's updated emergency order said churches must either require  proof of vaccination or hold services at 50 per cent capacity with distancing, contact tracing lists and no singing. Masks were mandatory with either option.

Hutchings publicly stated the church would be doing none of that.

The Department of Public Safety issued Hutchings a ticket after officials visited the church on Oct. 3 for Sunday service and observed that the rules were not being followed.

Thus began the provincial court matters.

Not long after, the province applied to the Court of Queen's Bench for a preliminary injunction that would prohibit the church from holding "public gatherings which are in contravention" of the Public Health Act and the Emergency Measures Act.

On Oct. 8, the parties signed a consent order where Hutchings agreed to "make all reasonable efforts to ensure compliance" with the rules governing faith-based gatherings.

A week later, Hutchings was remanded to jail for a week after the province accused him and the church of violating the order.