Appeal Court dismisses pandemic-related appeal by Saint John pastor and church

The New Brunswick Court of Appeal has dismissed an appeal by a Saint John pastor accused of thumbing his nose at the province's pandemic rules. 

But the decision is actually a win for Philip Hutchings and His Tabernacle Family Church because the court also determined that the undertaking at the heart of the case was no longer in effect. 

That means Hutchings and the church are no longer bound by that undertaking, which he signed on Oct. 22, promising to follow all the COVID-19 rules that applied to church services at the time.

Lawyer Jonathan Martin, acting on behalf of Hutchings and the church, applied to the court to have the undertaking set aside, so although the appeal was dismissed, the undertaking was determined to no longer be in effect. 

• More delays in trial of His Tabernacle Family Church pastors  
• Pastor of Saint John church jailed for a week after defying COVID rules

Chief Justice Marc 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.

That's why the appeal of the undertaking was dismissed as being moot, explained Richard during Wednesday morning's proceedings. 

But there's still a long legal road ahead for Hutchings and the church, including another matter in the Court of Appeal next month. The case is scheduled to be back before the court on June 15 on a related matter about a different judge in the same case. 

Martin filed an appeal about two decisions made in December by the second of three judges who have heard the case in succession. Martin disagrees with the judge's ruling on what constitutes an enclosed indoor space, and with 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. 

The case also continues to plod along in provincial court on a separate but related matter, where Hutchings faces a $580.50 ticket issued in October for failing to comply with COVID protocols. 

That matter was scheduled for a two-day trial in June, but the case is now sidelined by a constitutional challenge of New Brunswick's COVID-19 restrictions. 

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 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 said they 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.