https://www.cbc.ca/news/canada/new-brunswick/tabernacle-church-contempt-charge-1.6337255
Legal case against Saint John church accused of flouting COVID rules mired in motions
Judge denies defence motion to remove him from the case
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 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 News)
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.
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Now is the winter of our discontent brought on by legions of politicians and bureaucratic minions after 2 long years of illegal lock-down mandates for the benefit of the wealthy few.
Methinks everybody should enjoy a little Deja Vu on Ground Hog Day until we make things right N'esy Pas?
Groundhog Day is the classic film we now live every single day
Writer Megan Garber says the romantic comedy was a horror movie all along
CBC Radio · Posted: Jan 29, 2021 8:10 PM ET
"When Groundhog Day was released in 1993, the premise of the comedy film seemed completely implausible. It was the stuff of fiction. But then came 2020 and the COVID-19 pandemic, and suddenly the film seemed a little more relatable and realistic."
More Than 150 Comparative Studies and Articles on Mask Ineffectiveness and Harms
Paul E. Alexander
January 23, 2022 Updated: January 23, 2022
It is not unreasonable to conclude that surgical and cloth masks, used as they currently are being used (without other forms of PPE protection), have no impact on controlling the transmission of Covid-19 virus. Current evidence implies that face masks can be actually harmful. The body of evidence indicates that face masks are largely ineffective...........................................................................................Read on. Article not hard to find.. The lawyers should be referencing these studies and there is a peer review one out there now.
BTW Whitey Bulger was a mobster and a snitch
David Amos
Reply to @David Amos: Guilty until proven innocent with the help of an anonymous snitch? WOW Clearly we get the government/circus we deserve
Nicholas Hale
Reply to @David Amos: "Snitch" applies when it's someone on the same side as you. Criminals "snitch" on each other. When a community member reports what they suspect to be drug dealing they are not snitching at all, they are asking for it to be looked into, on the basis they do not want drug dealing taking place near their homes.
That said there is no substitute for due process and even former and active criminals deserve due process. It's an odd enforcement tactic, to say the least.
Would you have all other non-profit orgs taxed "like any other business" as well?
Laugh at his poor supporters.
Since it is not a civil action by either party, each party pays their own costs.
Standar for a title. NATO, north should not be capitalized? The north Atlantic Treaty Organization? Methinks not. LOL
I don't think you're informed enough about our justice system to comment on whether it is a joke or not, as evidence by you being more concerned with the appearance and your perception of threat than the actual specifics of the case. There is no "intimidation" taking place and there never was. This man signed a lawful order saying he would not continue his services and then immediately proceeded to disregard it. Enforcing the law against his outright dishonestly and contempt isn't "intimidation" at all, further proof your opinion here isn't valid or even semi-informed.
Taking away this clown's access to the media will stop this nonsense dead in its tracks.
Methinks we are entitled to witness a circus we are paying for N'esy Pas?
It seems your last point is correct.
Methinks you and Teddy must recall your last words to me yesterday N'esy Pas?
FYI I just talked to your ex bankster beancounter buddy and his boss
At least the marmot only digs through pockets of soil.
N.B. Court of Appeal orders stay in case against church accused of flouting COVID rules
No dates set for appeal filed by His Tabernacle Family Church
Even as the province prepares to lift COVID-19 restrictions, the court case against a Saint John church accused of flouting those rules continues to slowly make its way through a series of legal twists and turns.
The original contempt of court allegation against His Tabernacle Family Church has now been put on hold by the Court of Appeal of New Brunswick while it deals with two appeals by the church.
The first is a ruling on what constitutes an enclosed indoor space, and the second is the judge's refusal to recuse himself from the case.
As a result of granting leave to appeal those two issues, the Court of Appeal also issued a stay of proceedings in the original contempt case against His Tabernacle Family Church and four of its leaders, according to a decision released by the court on Thursday.
So far, no dates have been set for the appeals.
The case has been bogged down in recent months, with both sides filing additional motions with the court, making it less likely with each legal layer added that the original contempt motion will be dealt with any time soon.
Officials
with His Tabernacle Family Church who are accused by the province of
contempt of court are, from left, Jamie Hutchings, Dana Butler, Philip
Hutchings, and Cody Butler. (Graham Thompson/CBC)
The province filed the original contempt motion last fall after the church and its officials promised the court to abide by New Brunswick's COVID-19 protocols — that came after the church's pastor, Philip Hutchings, had already spent a week in jail on remand in the same case.
The province alleges that the church continued to have services that violated the rules for faith-based gatherings after they signed the agreement with the court.
Named in the case besides the church and Hutchings, are Hutchings's wife, Jamie, and Cody and Dana Butler.
Last month, Jonathan Martin, the lawyer for the church and its officials, sought leave to appeal the two decisions by Justice Darrell Stephenson. In the decision released Thursday, the Court of Appeal granted both.
Justice Charles LeBlond also issued the stay of proceedings for the original contempt charge against the church and the four named leaders of the church.
LeBlond said the stay "does not affect the obligation" of the church to obey all COVID-19 rules. He also ordered the province to pay $1,500 to the intended appellants for costs.
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More delays in trial of His Tabernacle Family Church pastors
$580 fine at centre of legal battle between church and province over COVID-19 rules
Two days had been set aside next month to hear the case against Philip Hutchings and Cody Butler of His Tabernacle Family Church for violating the Emergency Measures Act.
On Monday, defence lawyer Jonathan Martin, who is representing both men, filed an application several hundred pages long.
In court on Tuesday, Crown prosecutor Jeremy Erickson said he didn't have time to go through the entire document. He said the two days set aside for trial aren't even enough time to argue the new application, and certainly not the application and the trial.
Judge Andrew Palmer explained that both sides will be back in court on June 6 to set out a timeline for what legal steps come next.
Erickson told the judge it will likely take a week just to deal with the issues outlined in the defence application.
Defence
lawyer Jonathan Martin accompanies Jamie and Philip Hutchings into
court in December, along with an unidentified supporter in red. (Roger Cosman/CBC)
At the heart of the case is a $580.50 ticket, which was issued in October for failing to comply with COVID protocols.
The ticket could have been paid at any Service New Brunswick location by Dec. 1. Instead, it has escalated in provincial court to an impending constitutional challenge and, in the Court of Queen's Bench, to duelling motions from both sides and an application to the Court of Appeal.
Outside the courthouse, Martin said he plans to call four expert witnesses, including those from the fields of epidemiology and medical statistical analysis.
Martin said he will challenge the constitutionality of New Brunswick's COVID-19 restrictions.
Courts across the country have consistently rejected similar challenges, but Martin said his case is different.
"None of them, so far, have had to do with the time period that ours centres around, which is after the widespread availability of a vaccine that the government has said is … very effective in preventing severe COVID," said Martin.
"We're at a very different period of time in the pandemic, compared to these other challenges. Our position is that the onus on the government becomes heavier and heavier the longer these measures continue."
Philip Hutchings leaves court in October with his wife, Jamie, after spending a week in jail on remand. (Shane Fowler/CBC)
Martin said there are new and valid arguments that haven't been heard by the courts before.
In March, two Ontario churches lost a similar argument. The churches challenged Ontario's COVID-19 religious gathering restrictions, claiming they violated their right to freedom of religion and assembly under the Charter of Rights and Freedoms.
The justice in that case, Renée Pomerance, said she had the benefit of reading the decisions in similar charter challenges by churches in Manitoba and in British Columbia, where cases were also dismissed.
Hutchings and Butler, along with their wives and the church itself, have a related matter in the Court of Queen's Bench, but that case is on hold while the New Brunswick Court of Appeal deals with an application filed by Martin.
Martin said he is expecting a hearing date to be set by the Court of Appeal any day now.
Cody and Dana Butler and Jamie and Philip Hutchings arrive at the Saint
John courthouse for a court appearance in October. (Graham
Thompson/CBC)
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 choose between requiring proof of vaccination or holding services at 50 per cent capacity with distancing, contact tracing lists and no singing. Masks were mandatory with either option.
Hutchings posted on social media they would be doing none of that.
Hutchings spent a week in jail on remand in October after the church again failed to follow the rules for church services, according to affidavits by Department of Public Safety officials.
On Facebook, he described it this way: "I was locked in solitary confinement for 7 straight days in a cement box with blankets. At times in ankle chains … for not doing church the way the government wanted us to have church."
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