CHILLIWACK, BC: The Justice Centre is pleased with the Provincial Court of British Columbia decision that a BC pastor can proceed with an application to dismiss the prosecution against him for allegedly holding an in-person worship service during COVID-19 on the basis that the prosecution “risks undermining the integrity of the judicial process.” BC Crown prosecutors had sought to summarily dismiss the application, but the Judge found that there is “some evidence that the PHO (Provincial Health Officer) preferred some faith groups over others.”
Pastor John Koopman, who has been charged with violating COVID-19 public health orders, filed an abuse of process Application to the Provincial Court of British Columbia, alleging that the discriminatory actions of the Provincial Health Officer had made the continuation of his prosecution offensive to societal notions of fair play and decency and had brought the administration of justice into disrepute.
John Koopman is the Pastor of the Free Reformed Church in Chilliwack, British Columbia. In November 2020, BC’s PHO, Dr. Bonnie Henry, prohibited in-person worship services, while numerous other in-person settings—bars, restaurants, gyms, salons, etc.—were permitted to remain open for in-person service. Because of its religious convictions to gather for worship in-person, the Free Reformed Church re-opened its doors while also complying with the government’s health orders regarding face masks, hand washing, social distancing, etc. Meanwhile, Chilliwack RCMP had been conducting surveillance on the church.
On January 8, 2021, the Free Reformed Church, along with two other churches, filed a constitutional challenge to the prohibition on in-person worship services. After filing the challenge, Pastor Koopman and others submitted a request to gather for in-person worship services, but their request received no response for several weeks. At the same time, the PHO had been promptly responding within one or two days to requests made on behalf of Orthodox Synagogues, granting permission for them to meet in-person.
Two business days before the Court heard the constitutional challenge, the Public Health Officer granted the Free Reformed Church and other churches before the court limited permission to gather outdoors, claiming that gathering indoors was too risky. However, earlier that same week, the PHO had granted all Orthodox Synagogues in the province permission to gather indoors.
On March 18, 2021, Chief Justice Christopher Hinkson decided to dismiss the Free Reformed Church’s challenge, in part because the PHO had given it permission to meet outdoors. The BC Court of Appeal upheld Chief Justice Hinkson’s decision, and the Supreme Court of Canada subsequently denied leave to appeal.
Meanwhile, Pastor Koopman and other churches and pastors were being prosecuted by the Crown in the BC Provincial Courts.
On November 8, 2022, Pastor Koopman was found guilty of hosting an event in violation of the PHO’s gathering restrictions.
Later, on April 14, 2023, Pastor Koopman submitted an Application alleging that the Crown’s prosecution against him constituted an abuse of process. In response, on May 10, the Crown argued that the abuse of process application should not proceed to an evidentiary hearing. Lawyers for the PHO argued that PHO Dr. Bonnie Henry and Deputy PHO Dr. Brian Emerson should not be subpoenaed as witnesses in the case.
On May 15 to 18, 2023, Judge Ormiston heard arguments on whether the abuse of process Application could proceed to an evidentiary hearing.
On September 6, 2023, Judge Ormiston denied the Crown’s Application to summarily dismiss Pastor Koopman’s abuse of process Application because she found that there was “some evidence that the PHO preferred some faith groups over others.” Judge Ormiston found that, under the circumstances, it was not “manifestly frivolous” to think that the continued prosecution of Pastor Koopman “risks undermining the integrity of the judicial process.”
Nonetheless, Judge Ormiston did deny Pastor Koopman’s request to subpoena the PHO and Deputy PHO as witnesses on the abuse of process Application, ruling that they are protected from having to provide evidence under the doctrines of deliberative secrecy and solicitor-client privilege.
Lawyer Marty Moore, representing Pastor Koopman, stated, “The evidence thus far presented in this matter shows that the Public Health Officer (PHO) responded promptly to one religious community’s requests for accommodation with permission to meet in-person, while simply ignoring similar requests from other faith communities. When government actors violate Charter freedoms of conscience and religion but then consider respecting the rights of only some Canadians, the rule of law is undermined. Prosecuting a pastor for holding in-person services when he could not effectively access the same permission for in-person services the PHO had granted to a different religious community undermines the integrity of the judicial process.”
