Appeal for Defying Public Health Orders Dismissed

By Jennifer M. Leddy

Nov 2022 Charity & NFP Law Update
Published on November 24, 2022



The Court of King’s Bench of Alberta (the “Court”) dismissed the appeal of the Church in the Vine of Edmonton (the “Church”) and its co-pastor, Tracy Fortin, of their convictions and sentences for obstructing a public health inspector in the execution of their duties under the Public Health Act, R.S.A.(“Act”) on three occasions by refusing the inspector entrance to the Church to ensure compliance with COVID public health orders. The Court delivered its judgment, R v Church in the Vine and Fortin, on October 21, 2022.

The Church and Ms. Fortin (“the Appellants”) raised two grounds of appeal from the trial decision, reported in the June 2022 Charity & NFP Law Update. Firstly, the Appellants argued that the trial judge’s summary dismissal of their Charter claims to freedom of religion, during a pre-trial application known as a Vukelich Application, was an unreasonable use of discretion. Secondly, they argued that the trial judge displayed a reasonable apprehension of bias. The sentences were also appealed.

The Court found that the trial judge’s pre-trial dismissal of the Charter claims was proper, based on a three-part procedure for considering a Vukelich Application: 1) the judge must assume that the facts are true, 2) consider if the facts establish a basis in law for the constitutional remedy the applicant is seeking, and 3) failing the second consideration, must consider if an evidentiary hearing is nevertheless warranted.

The Appellants claimed that the Trial Judge failed in the first step of the process by not recognizing that freedom of religion was raised by the facts in the way the public inspector exercised her authority under the Act. The Court agreed with the trial judge, finding that the facts did not support a Charter claim based on the actions of the inspector. The Appellants’ statement that on a previous visit the mere presence of the inspector in the sanctuary was disturbing to the worshippers was insufficient given the competing interests of protection of the public and compliance with government orders. In addition, the inspector did nothing on the charge dates to infringe the freedom of religion of the Appellants, leaving when entry to the Church was refused. As a result, the Court agreed with the trial judge that the Appellants real argument was an indirect challenge to the Act which they were not entitled to make. In order to advance such a claim, the Appellants would have had to do so directly in their written claim and they did not do so. Therefore, this Charter argument was not open to them. 

Ultimately, the trial judge concluded that there was no likelihood of the Charter challenge succeeding, and the Court agreed that was a reasonable exercise of her discretion. The second ground that the case was appealed on was the reasonable apprehension of bias by the trial judge. Among their complaints included her references to the severity and scope of the COVID pandemic and its transmutability. They claimed that this was political rhetoric which was intended to imply that the Church, through noncompliance, was to blame for the spread of COVID. The court rejected this, saying that the statements made by the judge were all supported by public health records and the evidence before her.

The Appellants claim that the trial judge hampered their ability to present evidence regarding religious freedom was found to be incorrect, as evidence about how the Act infringed on religious liberty was beyond the scope of the trial because the Appellants had not directly challenged the constitutionality of the Act.

Regarding the sentence appeal, the Appellants argued that the trial judge took improper judicial notice of the facts surrounding COVID. This was rejected by the court, stating that the trial judge relied on Statistics Canada data in her consideration of the seriousness of COVID, a source which is generally considered reliable by the Court. Further, there exists a litany of cases across Canada where courts have accepted the validity of information provided by public health authorities.

The final argument of the Appellants was that their sentences were “demonstrably unfit” and that there were several reasons that should warrant mitigation of the sentences. They argued that the trial judge “overemphasized the gravity of the offence”, that there was no link between their actions and the overall pandemic, that they had allowed the public health inspector to do her job by allowing her entry on one previous occasion, and that the lack of an actual contravention of the Act (other than the obstruction charge) were all elements that should indicate leniency on the part of the Court.

It was found that the sentence was justified because of a need for “strong denunciatory sentences for obstruction offences, especially when that obstruction prevents the potential discovery of other misconduct.” Considering that the fines Ms. Fortin received were only upwards of 5% of the maximum penalties she could be liable for and the Church was only liable for upwards of 30% of the maximum penalties, the Court concluded that the sentence was fit. As such, the appeals were dismissed. 


Read the Month Year Charity & NFP Law Update