Saint John pastor plans charter challenge over COVID-19 restrictions

A Saint John pastor accused of thumbing his nose at the province's COVID-19 protocols is planning to file a charter challenge in the case. 

Philip Hutchings, of His Tabernacle Family Church, did not appear in court on Thursday morning, but his lawyer did. Jonathan Martin told the judge that the legal paperwork was "pretty much complete."

While he did not specify the section of the Charter of Rights and Freedoms he would be addressing, the charter does protect freedom of religion. 

His Tabernacle Family Church wouldn't be the first church to argue that COVID-19 religious gathering restrictions violated their right to freedom of religion and assembly. 

Earlier this month, 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 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, who has had numerous court appearances since October, and even spent a week in jail on remand, has a two-day trial scheduled in the matter, although that might be at risk once the charter challenge is filed, since that will have to be dealt with first. 

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 a promised constitutional challenge and, in the Court of Queen's Bench, to several motions which are currently at a stand-still after the Court of Appeal granted leave to appeal two decisions made by the presiding judge. 

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. 

The contempt of court charge against Hutchings is now on hold, waiting for the Court of Appeal to deal with the two appeals filed by the church and its officials.