Judge tells Saint John pastor accused of flouting rules to work with province

Pastor Philip Hutchings still faces a contempt of court charge, but he walked out of a Saint John courtroom on Friday, free to continue holding religious services at His Tabernacle Family Church. 

Both of those things were in question after the province asked the court to find Hutchings and the church in contempt for failing to abide by signed agreements to the court in October. 

The province filed a motion on Tuesday to have Hutchings and his wife, the church itself, and two directors of the church — Dana and Cody Butler — found in contempt.

According to a pre-hearing brief, the Office of the Attorney General wanted Hutchings jailed for 90 days and fined $20,000.

The province alleges Hutchings and the church continued to hold services that contravened the mandatory emergency order aimed at controlling the spread of COVID-19 after signing agreements with the court to comply. 

On Friday, defence lawyer Jonathan Martin had asked the court for more time to prepare for the hearing. 

Justice Darrell Stephenson consented to the request and set the matter over to Jan. 14. Stephenson took over the case on Friday after Justice Hugh McLellan recused himself following an application by Martin to have McLellan removed. 

Stephenson made it clear that the church was to follow the province's COVID-19 protocols for religious gatherings. He said church officials would have to work with the province to determine what constitutes an indoor gathering. 

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 are mandatory with either option.

The emergency order also gives peace officers the authority to enter any building without permission to ensure compliance with the rules. 

Martin said the latest contempt allegation centres on a tent the church has been using for services. Essentially, Martin advised the church that a tent did not constitute an "indoor gathering" and therefore didn't have to comply with the rules for indoor gatherings. 

Martin said the church is willing to take off as many of the tent walls as necessary. 

Stephenson said it was up to the church to work out those details with the province to enable them to continue to hold services through the Christmas season.

He said his goal on Friday was to take care of the "go forward" issues. Anything to do with what is alleged to have happened in the last few weeks will be addressed at the next court appearance. 

The Attorney General's Office has made its position clear in a pre-hearing brief filed with the court. It said, given that seven days in jail didn't persuade Hutchings to follow the rules, it wants the court to consider 90 days and a $20,000 fine. 

The court was also asked to levy $5,000 fines against Jamie Hutchings, Dana Butler and Cody Butler, and a $35,000 fine for His Tabernacle Family Church. 

The province is also asking that the parties "jointly and severally" pay legal fees of $25,000. 

The document alleges that the church continues to flout COVID-19 regulations. 

Hutchings and the church "are continuing to take an antagonistic approach with regard to the COVID-19 regulations," the document says, and "are attempting to profit off the previous contempt finds by selling merchandise which states, 'My Pastor went to prison for having church.'"

Court documents show a Facebook picture of Jamie Hutchings wearing a T-shirt with that slogan and advertising that "church merch" would be available the next day. 

The briefing says Philip Hutchings has "attempted to capitalize on the notoriety related to these proceedings in order to grow his following and fill the coffers of the Church." 

It says the merchandise celebrates "their ongoing failure to comply with government restrictions."

Hutchings is also facing two counts of violating the Emergency Measures Act and one charge of wilfully obstructing a peace officer. He pleaded not guilty to those charges. A two-day trial has been scheduled to begin on June. 6. 

Cody Butler, a junior pastor at His Tabernacle Family Church, will also face trial on that date. He pleaded not guilty last week to obstructing a peace officer.

'Flagrant disregard' for rules

Court documents describe repeated infractions with COVID-19 protocols since His Tabernacle Family Church first came to the province's attention in September, when Hutchings posted on social media that 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. 

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. 

"I want to be clear," McLellan told them Oct. 29. "You could end up going to jail if there's a violation of this."

He stressed that the directors were being held personally responsible for the actions of the church. And just to make sure they understood, he made them all initial that section of the already-signed original document.

His Tabernacle Family Church lost the use of the building they were renting on Rockland Road and started holding outdoor services at 40 Ashburn Lake Rd. By Nov. 28, they were using a large tent there. 

On Dec. 2, they were informed in writing that a tent was still considered an enclosed place and that restrictions would still apply. 

On Dec. 5, despite in-person warnings from officers from the Department of Justice and Public Safety, the church service went ahead, allegedly without complying with COVID-19 protocols.