Contempt Charges Against NB Church Leaders for Holding Tent Services During Pandemic Restrictions Dismissed

Case hinged on legal ruling over the definition of "public indoor space"

Pastor Philip Hutchings, of His Tabernacle Family Church, Saint John, New Brunswick, preaches outside. Photo courtesy Philip Hutchings

A New Brunswick judge has dismissed contempt charges against two church leaders for holding church services in an outdoor tent during pandemic restrictions.

The case hinged on whether an outdoor tent is a “public indoor space” as the government alleged.

On Feb. 2, Chief Justice Tracey DeWare, of the Court of King’s Bench of New Brunswick, released her decision, dismissing contempt of court charges against Saint John pastor Philip James Hutchings, and church director Keith Cody Butler.

The two church leaders have faced ongoing charges for allegedly violating COVID-19 public health orders while holding worship services at His Tabernacle Family Church in Saint John, New Brunswick.

At one hearing, the Crown argued church services could become “super spreader” events.

In October 2021, a week after first receiving COVID-19 tickets, Hutchings was arrested and spent seven days imprisoned in solitary confinement.

The pastor was alleged to have breached a court order by holding a church service that did not comply with masking and social distancing requirements.

Hutchings and Butler filed a charter challenge on May 3, 2022, arguing the public health orders and resulting tickets were an unjustified infringement of constitutionally-protected rights including freedom of religion, expression, assembly, and freedom against arbitrary search and seizure.

The province withdrew those tickets, which automatically ended the charter challenge.

Police and public health officials at His Tabernacle Church in Saint John, New Brunswick during COVID-19. Photo courtesy Phil Hutchings

Tent Church Services

The first outdoor tent service took place on Nov. 7, 2021, at a time when Hutchings and Butler were under a court order that required them to make “all reasonable efforts” to comply with public health orders at the time, including an order that banned all indoor public gatherings.

“We just started having church outdoors. And with a tent, if it rains or snows, people are dry,” Hutchings said in a previous interview.

The government argued that an outdoor tent is an “indoor space,” and the pastor and Butler were charged with contempt of court for violating public health orders and previously agreed to court orders.

DeWare said the case required the court to consider whether a tent was “clearly and unequivocally a building.”

The judge noted that the tent was 30 feet by 50 feet, included a roof canopy and side wall curtains, and no floor, and that “during the first services, the sidewalls of the tent were left open.” As the weather became cooler, the church lowered the sidewalls.

“The commercial tent did not actually have doors,” she said and was rather equipped with three openings, six feet by eight feet, to enter the tent.

The province wrote to the church on Dec. 2, 2021, advising the church that the tent was a “public indoor space,” and demanded they comply with COVID-19 restrictions in place under public health orders.

Health Orders

At the time, the N.B. government had mandated public health orders regarding religious worship services.

Churches were told they had to require congregants to provide proof of vaccination or limit services to 50 percent capacity. They also had to enforce social distancing, mandatory masks, contact tracing, and avoid singing. The province’s public health orders were lifted in March 2022.

Hutchings said in an affidavit that it would be a “grave infringement” of his religious freedom, and the religious freedom of his congregation, to require proof of vaccination to attend church and said he would not ask church members about their vaccine status.

“I made sure that masks were available. I didn’t police it. I’m not going to force people to wear masks. I’m a pastor, not a policeman,” he told the Epoch Times.

Jonathan Martin, the church’s lawyer, and counsel representing both church leaders, responded to the government, disagreeing that the commercial tent was an indoor space.

The church held another service on Dec. 5, 2021, at which time the N.B. government filed court documents alleging that Hutchings and Butler were not complying with health orders, and were in contempt of previous court orders.

Pastor Philip Hutchings, of His Tabernacle Family Church in Saint John, New Brunswick, preaches outside during COVID restrictions. Courtesy of Philip Hutchings

In making her ruling against the province, DeWare said that to make a finding of contempt, there were three essential elements.

First, the order or law must clearly state what “should or should not be done.” Next, the individual alleged to have breached an order must have actual knowledge of it. Finally, the party must have intentionally done an act prohibited by an order, or, intentionally failed to do something compelled to do by court order.

DeWare said during the trial, she asked counsel for the province to define the precise moment “when the commercial tent became a ‘public indoor space’ or an ‘enclosed space.’”

“Did this description apply when two [tent] sidewalls were down, when three sidewalls were down, or when all four sidewalls were down?” she asked.

DeWare noted in her ruling that the province’s lawyer could not provide an answer. The judge noted that the province’s letter to the church, advising the tent is a “public indoor space,” also did not “explain how this is so, or when it falls within the definition.”

‘Enclosed Place’

DeWare made special note of the French version of the province’s orders, which use the term “enclosed place” when translated to English.

“The key factor is whether or not the commercial tent could be considered an ‘enclosed place,’ DeWare noted. She said it was reasonable to question whether a tent with openings rather than doors and no floor could be considered “enclosed.”

DeWare said it was also reasonable to take the view that the church leaders could have “moved their church services to the commercial tent” to avoid breaching health orders and in an attempt to comply. She ruled she could not find the men had intentionally breached a court order.

“My clients are pleased with the decision. This is a win for due process and also a win for government accountability. This case highlighted the problems with the drafting of vague regulations that provide limitless prosecutorial discretion,” said Martin, whose legal defence of the church and its leaders is funded by The Democracy Fund, a non-profit legal advocacy organization.

In November 2022, New Brunswick also dropped two outstanding tickets against the pastor, and dropped obstruction charges against both Hutchings and Butler, for allegedly refusing to allow government inspectors to enter the church earlier during the pandemic.

“If liquor stores can stay open, if Cannabis New Brunswick can stay open, and Tim Hortons can stay open … if any place should stay open, it should be the church. We provide people hope,” the pastor said.

Hutchings says he tried to comply with public health orders, “as long as they didn’t conflict with our faith.”