More delays in trial of His Tabernacle Family Church pastors

A trial scheduled for two Saint John pastors accused of flouting the province's COVID-19 rules has been cancelled after a new application was filed by the defence. 

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. 

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."

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. 

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."