Court dismisses case against N.B. pastor for holding services during COVID lockdown

A New Brunswick judge has dismissed a contempt of court case against a pastor accused of ignoring COVID-19 public health rules in 2021.

Chief Justice Tracey DeWare of the Court of King’s Bench says in a Feb. 2 decision she was unable to conclude that a tent erected by Philip James Hutchings, pastor of His Tabernacle Family Church in Saint John, was “clearly and unequivocally” an enclosed space as defined by a provincial health order.

Defence lawyer Jonathan Martin says his clients are happy with the decision.

“This is a win for due process and also a win for government accountability against the drafting of vague regulations that provide limitless prosecutorial discretion,” he said in an email.

In October 2021, authorities ticketed Hutchings and his associates for being in violation of the province’s COVID-19 health order for holding weekly services inside their church. A month later, they tried to get around the rules by erecting a commercial tent with sidewalls, which were left open when the weather was warm but pulled down as it got colder, the decision says.

“Clearly a commercial tent with four sidewalls up cannot be considered an ‘enclosed space’ or ‘public indoor space’ on any interpretation given to the definition. Arguably, the commercial tent with four sidewalls down could fall with the parameters of an ‘enclosed space,”’ it says.

“However, as I write this decision, it is unclear to me when that occurs, and counsel for the applicant were unable to provide a clear answer to the question.”

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It is difficult for the court to conclude beyond a reasonable doubt that in moving the services from the church to a tent, Hutchings and his church associates knew he was breaching the mandatory order, she said.

“I am unable to conclude that the commercial tent was ‘clearly and unequivocally’ an ‘enclosed space’ as described in the mandatory order, and as such, the respondents cannot be held in contempt.”

The province’s Health Department was not immediately available for comment.

This report by The Canadian Press was first published Feb. 7, 2023.