Philip Hutchings of His Tabernacle Family Church is accused of continuing to hold church services that contravene the province's mandatory order for the pandemic, although he signed an agreement with the court to obey all the rules. 

In its motion, the government alleges that services held on Nov. 28 and Dec. 5 contravened the order, but new affidavits filed with the court allege more breaches on Dec. 12 and Jan. 2. 

Lawyers for both sides met with the presiding judge by telephone on Friday morning to sort out some legal issues, including a new motion filed by Hutchings's lawyer, Jonathan Martin. 

In it, Martin requested a number of things, including that two government employees be made available for cross-examination, and that portions of some affidavits be struck. 

The defence motion will be dealt with first — on Feb. 2. Once that's been resolved, a date will be set to hear the province's original motion for contempt. 

Pictures posted on Philip Hutchings's Facebook page were submitted as exhibits and appear to show a packed church service with no one wearing masks. (New Brunswick Court of Queen's Bench)

Jason Caissie, the lawyer for the Attorney General of New Brunswick, asked that the issues be dealt with "as soon as possible," and said he had concerns about public safety in the meantime. He said there's still "a large group of them not vaccinated," and new affidavits allege that church officials continue to break the rules.  

He suggested they'd be in a better position before the court if they'd been able to claim they are obeying the rules. But, he said, the new affidavits "show they are not." 

Justice Darrell Stephenson responded that if something urgent arises, like "an issue of public safety," it can be brought forward for the court to deal with in the interim. 

Martin told the court that his client believes the province is harassing him and the church by repeatedly attending services and taking pictures of those in attendance. 

Stephenson urged both sides to work together to ensure church services comply with the government's COVID-19 restrictions. 

Hutchings 'mocked' the mandatory order

The history of this case stretches back to September, when government officials noticed a social media post where Hutchings claimed 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. 

Philip Hutchings leaves the Saint John courthouse after being released from jail in October. (Shane Fowler/CBC News)

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. 

The province contends that what followed was a series of infractions of the rules.