New Brunswick

Legal case against Saint John church accused of flouting COVID rules mired in motions

The legal applications are starting to pile up in the case of His Tabernacle Family Church, a Saint John church accused of violating the province's Mandatory Order and violating an agreement with the court to abide by the rules. 

Judge denies defence motion to remove him from the case

Philip Hutchings, pastor and founder of His Tabernacle Family Church, is accused of contempt for violating an agreement with the court to obey all of the province's COVID-19 protocols. (His Tabernacle Family Church/Facebook)

The legal applications are starting to pile up in the case of a Saint John church accused of violating the province's Mandatory Order. 

There was another court appearance Wednesday afternoon for His Tabernacle Family Church, its pastor, Philip Hutchings, and other church leaders — and more motions. 

Jonathan Martin, the lawyer for the church and its officials, has filed three new motions since Jan. 14, the last time the case was in court. 

The first alleges contempt of court by the province, while the two most recent motions ask for the presiding judge to remove himself from the case and to overturn a decision he made in December. 

The piling on of legal motions continues to push the original matter — a contempt of court charge against Hutchings and the others — further down the road. 

On Wednesday, after hearing from both sides, Justice Darrell Stephenson stood by his Dec. 10 ruling. He also declined to recuse himself. 

Jonathan Martin says "the province is out for blood" against his clients. (Roger Cosman/CBC)

The defence motion asked Stephenson to revisit and change a decision he made about the tent in which the church had begun to hold their services. The judge said a tent consisting of a roof and four walls constituted an enclosed public space, and as such, was subject to the rules outlined in the order. 

Martin had also argued that Stephenson is biased, or that there is a "reasonable apprehension of bias," a legal standard for disqualifying judges. Martin said his clients have the right to be tried by an "impartial tribunal." He argued that wasn't the case because of Stephenson's Dec. 10 ruling. 

Martin said the matter should be held before a judge who hasn't made any advance rulings. He said the judge would "consciously or unconsciously want to stand by" that decision. 

That ruling, explained Stephenson, was specifically related to a description of a tent in an affidavit of an official with the Department of Justice and Public Safety. He said it wasn't meant to cover some "hypothetical" tent the church may have been proposing.

The judge said Martin agreed to the description and was even offered an opportunity to view the video footage entered as an exhibit. 

At that time, Stephenson told Martin to take it up with the Court of Appeal if he disagreed. 

The case will be back in court on Feb. 22 in order to figure out when and how the rest of the outstanding legal issues will be dealt with. 

Pictures posted on Philip Hutchings's Facebook page were submitted as exhibits and appear to show a packed church service with no one wearing masks. (Phil Hutchings/Facebook)

Only after those issues are resolved will the matter deal with the original accusation — that Hutchings, his wife, and two other members of the church violated an agreement they made with the court in October.

All sides made reference to the often-acrimonious relationship between the province and the church. Stephenson called it a "no-holds barred dispute" and referred to the "two duelling motions for contempt."

Outside the courtroom, Martin said "the province is out for blood." 

He said he still believes the defence has "a strong case" on both motions dismissed by Stephenson on Wednesday. He said he is "seriously looking at an appeal." 

First judge recused himself

The history of this case stretches back to September, when government officials noticed a social media post where Hutchings claimed his church would operate at full capacity and wouldn't require masks or proof of vaccination. 

On Oct. 1, an official with the province contacted Hutchings and explained the rules. He agreed to comply, according to the court file.

Just two days later, the church held a service that allegedly violated the rules again. Hutchings was fined for that on Oct. 6.

On Oct. 8, the province went to court to get an order to shut down the church for continued non-compliance, but Hutchings signed a consent order, agreeing to "make all reasonable efforts to ensure compliance" with the rules governing faith-based gatherings. 

Two days after the agreement was signed, Public Safety visited the church and videotaped people coming and going freely and not wearing masks. The footage included an unmasked Hutchings coming to the door of the church.

That's when Hutchings and his followers raised the ire of Court of Queen's Bench Justice Hugh McLellan, who would later recuse himself following a request by the defence. McLellan said he didn't want to become a distraction in the case. 

Philip Hutchings leaves the Saint John courthouse after being released from jail in October. (Shane Fowler/CBC)

Hutchings appeared before McLellan on Oct. 15 and was remanded to jail for a week. McLellan said the remand was necessary to protect the public. 

He also said Hutchings "mocked" the order by holding another non-compliant service two days later. As a result, he said he had concerns about the pastor's "personal credibility."

When a more repentant Hutchings returned to court one week later, he admitted to contempt of court and agreed to abide by a number of conditions imposed by the court. 

Eventually, Hutchings, and Dana and Cody Butler, were all given a stern lecture by the judge before they signed another agreement to obey the rules. 

The province contends that what followed was a series of infractions of the rules.

Martin said the church has not used the tent since Dec. 5. They have held their services on line or drive-in style. 

ABOUT THE AUTHOR

Mia Urquhart is a journalist with CBC New Brunswick, based in Saint John. She can be reached at mia.urquhart@cbc.ca.

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