Court File and Parties

COURT FILE NO.: CV 8/21

DATE: 2021-05-14

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO

Applicant/Moving Party

– and –

THE CHURCH OF GOD (RESTORATION) AYLMER, HENRY HILDEBRANDT, ABRAM BERGEN, JACOB HIEBERT, PETER HILDEBRANDT, SUSAN MUTCH, ELVIRA TOVSTIGA and TRUDY WIEBE

Respondents/Responding Parties

Counsel:

Connie Vernon, Josh Hunter, Lisa Brost and Domenico Polla, Counsel for the Applicant/Moving Party

Lisa Bildy, Counsel for the Respondents/Responding Parties

HEARD: May 13, 2021.

REASONS FOR SENTENCE

THOMAS, RSJ.:

[1] On February 11, 2021 I granted the applicant a restraining order after considering the respondents’ obvious breaches of provincial legislation which related to the dangers of the COVID-19 pandemic. Section 9 of the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, S.O. 2020, c. 17 (“ROA”) allowed for the restraining order. Regulation 82/20 made under the ROA had limited the number of persons attending an indoor religious service to 10 and required all attendees to wear masks or face coverings. At that time the governing legislation was breached on at least two occasions on January 24 and January 31, 2021.

[2] The relevant portions of my restraining order are set out below:

2. AND THIS COURT ORDERS that pursuant to section 9 of the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, S.O. 2020, c. 17 (“ROA”), the Respondents, their servants, employees, agents, assigns, officers, directors and anyone else acting on their behalf or in conjunction with any of them, and any and all persons with notice of this Order, be and hereby are restrained from directly or indirectly, by any means whatsoever, contravening Ontario Regulation 82/20 in respect of gatherings for the purpose of a religious service, rite or ceremony at, inside, or in conjunction with the operations of the Church of God (Restoration) Aylmer.

3. AND THIS COURT ORDERS that the Respondents, their servants, employees, agents, assigns, officers, directors and anyone else acting on their behalf or in conjunction with any of them, and any and all persons with notice of this Order, be and hereby are restrained from directly or indirectly, by any means whatsoever, contravening any other continued section 7.0.2 order, as defined in the ROA, that applies or may subsequently apply to the Respondents in respect of gatherings for the purpose of a religious service, rite or ceremony at, inside, or in conjunction with the operations of the Church of God (Restoration) Aylmer.

[3] On April 30, 2021 I found The Church of God (Restoration) Aylmer, Henry Hildebrandt and Peter Wall in contempt of the order. My findings were based on the conduct of April 25, 2021. That conduct was described in my written endorsement of May 3, 2021, but to summarize, Henry Hildebrandt as Pastor openly and flagrantly conducted a live-streamed service on that date, which included in excess of 100 unmasked congregants.

[4] Peter Wall, an assistant Pastor, assisted in the service. The service was held inside the Church’s John Street place of worship. Both Henry Hildebrandt and Peter Wall are corporate officers for the respondent Church.

Purpose of Contempt Sanctions

[5] Justice McLachlin in United Nurses of Alberta v. Alberta (Attorney General), 1992 CanLII 99 (SCC), [1992] 1 S.C.R. 901 at para. 50, spoke of the importance of the rule of law and the ability of the court to enforce its process:

50 Both civil and criminal contempt of court rest on the power of the court to uphold its dignity and process. The rule of law is at the heart of our society; without it there can be neither peace, nor order nor good government. The rule of law is directly dependent on the ability of the courts to enforce their process and maintain their dignity and respect. To maintain their process and respect, courts since the 12th century have exercised the power to punish for contempt of court.

[6] In Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79 at para. 31, Justice Cromwell provided insight into the distinction between sentencings in the context of criminal and civil contempt:

[31] The common law has developed to recognize two forms of contempt of court: criminal contempt and civil contempt. The distinction, which the parties to this appeal accept, rests on the element of public defiance accompanying criminal contempt: see, e.g., United Nurses, at p. 931; Poje v. Attorney General for British Columbia, 1953 CanLII 34 (SCC), [1953] 1 S.C.R. 516, at p. 522. With civil contempt, where there is no element of public defiance, the matter is generally seen “primarily as coercive rather than punitive”: R. J. Sharpe, Injunctions and Specific Performance (2nd ed. (loose-leaf)), at para. 6.100. However, one purpose of sentencing for civil contempt is punishment for breaching a court order: Chiang (Trustee of) v. Chiang, 2009 ONCA 3, 305 D.L.R. (4th) 655, at para. 117. Courts sometimes impose substantial fines to match the gravity of the contempt, to deter the contemnor’s continuing conduct and to deter others from comparable conduct: Sharpe, at para. 6.100.

Positions of the Parties

[7] The applicant seeks monetary penalties for the individuals in contempt of $10,000. each and a fine of $50,000. assessed against the Church. Further, the applicant seeks an order locking the Church building until such time as the operations of the Church are no longer subject to any gathering limit under Ontario Regulation 82/20 or any continuing order under section 7.0.2 of the ROA. The applicant also seeks substantial costs for all proceedings to-date.

[8] The respondents argue for a significant reduction in the fines and costs sought. If the Church is to be locked, it is suggested that terms be imposed including a provision allowing the doors to reopen if the latest restrictions are eased.

[9] Ms. Bildy draws my attention to the Court of Appeal decision in Henco Industries Ltd. v. Haudenosaunee Six Nations Confederacy Council (2006), 2006 CanLII 41649 (ON CA), 82 O.R. (3d) 721. Ms. Bildy suggests that when the applicant here stresses the need to promote the Rule of Law, it should be remembered that it is not just about punishing for contempt.

[10] At paras. 141-143 of Henco, Justice Laskin said this:

[141] But the rule of law has many dimensions, or in the words of the Supreme Court of Canada is "highly textured". See Reference re Resolution to Amend the Constitution, supra, at p. 805 S.C.R. One dimension is certainly that focused on by the motions judge: the court's exercise of its contempt power to vindicate the court's authority and ultimately to uphold the rule of law. The rule of law requires a justice system that can ensure orders of the court are enforced and the process of the court is respected.

[142] Other dimensions of the rule of law, however, have a significant role in this dispute. These other dimensions include respect for minority rights, reconciliation of Aboriginal and non-Aboriginal interests through negotiations, fair procedural safeguards for those subject to criminal proceedings, respect for Crown and police discretion, respect for the separation of the executive, legislative and judicial branches of government and respect for Crown property rights.

[143] It seems to me that in focusing on vindicating the court's authority through the use of the contempt power, the motions judge did not adequately consider these other important dimensions of the rule of law.

[11] The context of the comments of Justice Laskin are all important. In Henco, the Court was confronted with a ruling by the application judge that found a class of people guilty of contempt without giving them notice or a chance to be heard. The application judge sought as well to interfere with the negotiations between the province, the police and the indigenous demonstrators in an attempt to have his orders enforced. Henco is far removed from the circumstances confronted here.

Crafting the Sentence

[12] Epstein J.A. in Boily v. Carleton Condominium Corp. 146, 2014 ONCA 574 at para. 90 considered a structure for determining a fit sentence for civil contempt:

[90] The following are the factors relevant to a determination of an appropriate sentence for civil contempt:

a) the proportionality of the sentence to the wrongdoing;

b) the presence of mitigating factors;

c) the presence of aggravating factors;

d) deterrence and denunciation;

e) the similarity of sentences in like circumstances; and

f) the reasonableness of a fine or incarceration.

Echostar Communications Corp. v. Rodgers, 2010 ONSC 2164; Sussex Group Ltd. v. Fangeat, [2003] O.J. No. 3348, [2003] O.T.C. 781 at para. 67 (Ont. S.C.); Builders Energy Services Ltd. v. Paddock, 2009 ABCA 153, at para. 13. Megill, at pp. 7-8.

[13] Let me say at this point that I recognize that the respondent Church has brought an application before this Court to consider the constitutionality of this legislation as it impacts the fundamental freedoms protected by s. 2 of the Charter of Rights. Neither my comments here nor the sentences imposed should be seen to affect the ultimate determination of constitutionality. However, as long as the law remains in effect, the Court has a right to enforce its terms and any orders made pursuant thereto. (Ontario (Attorney General) v. Paul Magder Furs Ltd. (1991), 1991 CanLII 7053 (ON CA), 85 D.L.R. (4th) 694 at p. 698 (ONCA)).

Proportionality

[14] The fundamental principle in sentencing requires that any sentence be proportionate to the gravity of the offence and the responsibility of the offender. With regard to the matters before me, I am considering the breach of a court order. A court order which seeks to assist in the enforcement of provincial legislation protecting the public in the midst of a global pandemic and a state of emergency.

[15] There is no doubt in considering the relative responsibilities of the contemnors that Henry Hildebrandt, as Pastor of this Church, is the leading force and unapologetic spokesperson for the offending activity. Peter Wall, while in a lesser role, is the assistant Pastor and active in the Church services themselves.

[16] Both men are officers of the respondent Church corporation, which I have found in contempt. I would suggest that the evidence makes it clear that Pastor Hildebrandt has spiritual control over his congregation and could stop the breaching conduct if he chose to do so.

Mitigating Factors

[17] I find it mitigating that the respondents allowed this proceeding to move forward efficiently through both the order and contempt phases. While the breaches of the governing legislation were obvious, there was no attempt to create protracted proceedings which would have served no purpose.

[18] In addition, this is the first finding of contempt and the evidence shows that for almost a year of limited restrictions, prior to my restraining order, the Church operated without charges and without confrontation with the police or the community.

[19] Both Henry Hildebrandt and Peter Wall are long-standing members of the community and have, or are, raising families in Aylmer.

Aggravating Factors

[20] There are numerous aggravating events. While the contempt finding focussed on the events of April 25, 2021, I find there were other offending gatherings at this Church between my order of February 12, 2021 and April 25, 2021. Those gatherings were on April 7, 11 and 18.

[21] After my finding of contempt on April 30, 2021 the actions of the contemnors continued unabated. I am content that the evidence supports a finding that there were two large indoor services on May 2 and May 9, 2021.

[22] On May 2, 2021 police officials counted 166 persons entering the Church with an overflowing parking lot containing 165 vehicles. On May 9, 2021, 202 persons were seen entering the Church with 128 vehicles parked on the property. It must be remembered that throughout this time period, the governing regulations allowed for a gathering limit of 10.

[23] Also aggravating are the comments made by Henry Hildebrandt and Peter Wall. All comments being live-streamed on YouTube by the Church officials.

[24] On May 2, 2021 Pastor Hildebrandt told his congregation:

We are even learning to say my ticket is your ticket. We’re about ready, we’re about ready to put a big box somewhere and say deposit all tickets here. For all of us. Because we aren’t stopping. We’re going on. We’re not giving up. We’ve, our, our, our, our eyes are on the goal, and our goal is forward, upward, (inaudible), onward, upwards and we’re not gonna be distracted, we see the goal, we see the goal and we’re going up and on until we reach the goal.

The gathering, the gathering on 751 John Street North in Aylmer Ontario this morning is just a fraction, is just a representation, of the 7000 of Canada that have not bowed their knee. And they aren’t about to. And the number is growing. It’s growing its growing, its growing.

[25] On May 9, 2021 he said:

Is it alright with you if we just speak directly? It has nothing to do with a virus. It has nothing to do with a virus. Nothing! I will prove it to you. If it was a virus, the officers will wear gloves before they touch the dirty pastor. … It’s not about a virus. It’s - the attack on the church of God in Aylmer has nothing to do with a virus! Nothing!... It is a made-up thing. It is… It is righteousness versus evil. It is light versus darkness. It is Satan versus God. And right now, we are at war, folks! We are in Canada at war right now!

[26] On May 9, 2021 Peter Wall urged the congregation to tell their friends to come to the services:

Brethren this morning, we gotta be excited because we are part of a gathering. I want to say a little bit more, brethren each one of us has a responsibility to take what you hear Sunday morning and to take it out and tell your friends. Say: ‘Listen! We are part of a gathering; you must come also!’.

[27] Pastor Hildebrandt is not so much conducting a service of worship as he is promoting his role as leader of the resistance to these public health restrictions. As he has proclaimed “we are … at war right now” … “we must stand up against those tyrants”. These comments came after my finding of contempt and I find them significantly aggravating.

Deterrence

[28] Deterrence must be the primary purpose of my sentence here. Accepting that the provincial regulations were enacted to protect the public from the spread of a deadly virus, my sentence must attempt to deter those who would similarly ignore the regulations, both at the Church of God in Aylmer, and in the community at large. General deterrence is all the more important because of the live-streaming of the services, which directly encourage civil disobedience.

Similar Sentences and the Reasonableness of the Fines

[29] The applicant has offered the recent sentences imposed on the Trinity Bible Chapel in Kitchener as a measure of the reasonableness of its request. That sentence consisted of fines of $15,000. for the institution, and $3,000. to $5,000. for the individual contemnors, depending on their level of involvement. That church has been temporarily locked by an injunction. The applicant argues that those penalties were assessed when the pandemic was less of a threat and the aggravating factors were less extensive. Substantial indemnity costs in the amount of $45,000. were also assessed there.

[30] Ms. Bildy, for the contemnors, argues that the monetary penalties sought as crushing and out of touch with the nature of the conduct to be punished. It is her position that I must temper the fines or the costs, or both. She argues that this is a rural Church and that I have no evidence of the contemnors’ ability to pay the fines sought.

Locking the Doors

[31] As mentioned, the applicant requests an order locking the doors of this Church either as injunctive relief or as part of my sentence for contempt.

[32] This Court has broad common law powers to punish contempt of its orders and to obtain compliance. (R. v. Gibbons, 2012 SCC 28 at paras. 14-15; Astley v. Verdun, 2013 ONSC 6734, aff’d 2014 ONCA 668; TG Industries Ltd. v. Williams, 2001 NSCA 105 at para. 35).

[33] These powers are now enumerated in r. 60.11(5) of the Rules of Civil Procedure:

(5) In disposing of a motion under subrule (1), the judge may make such order as is just, and where a finding of contempt is made, the judge may order that the person in contempt,

(a) be imprisoned for such period and on such terms as are just;

(b) be imprisoned if the person fails to comply with a term of the order;

(c) pay a fine;

(d) do or refrain from doing an act;

(e) pay such costs as are just; and

(f) comply with any other order that the judge considers necessary,

and may grant leave to issue a writ of sequestration under rule 60.09 against the person’s property. R.R.O. 1990, Reg. 194, r. 60.11 (5).

[34] As a sanction for contempt in College of Chiropractors v. Dies, 2016 ONCA 2, the Court of Appeal approved of the decision to allow authorities to take possession of a chiropractic clinic which was conducting unlicensed treatments. I am aware that Justice Krawchenko in Attorney General of Ontario v. Trinity Bible Chapel, 2021 ONSC 1169, locked the doors of that church as interlocutory injunctive relief. That inunction to be revisited upon the ultimate determination of contempt sanctions.

[35] Clearly, the locking of a place of business for continuing to offend this legislation or breaching a court order is a far cry from locking a place of worship. It could be argued that locking this Church may not assist in the cessation of the contempt, but clearly this location has been the crucible of the contemptuous activity, and to ignore that would simply be unacceptable.

[36] I acknowledge that this building is the centre of the community for this congregation. It is far more than just a place to come on Sundays. It is part of the fabric of their lives. However, these regulations and the state of emergency were put in place to protect the health of the community and to save lives at a time of soaring infection rates and overflowing hospitals. I accept that to be so.

[37] If this process is to have any deterrent effect, either specifically or generally, this Church must be locked.

Conclusion

[38] Taking into account the factors mentioned in Boily, as I have detailed them above, I find the following:

(a) The Church of God (Restoration) Aylmer will be fined $35,000.;

(b) Henry Hildebrandt will be fined $10,000. He is the directing mind of the continuing contempt.

(c) Peter Wall will be fined $3,000. Mr. Wall, while an assistant Pastor, is a young man with a young family, who I have no doubt was following the example and direction of his Pastor.

All of the fined parties will have 90 days to pay the fines consistent with their counsel’s submission on time to pay.

(d) The Sheriff of Elgin County is directed to forthwith lock the external doors of the property known as the Church of God (Restoration) Aylmer. The Aylmer Police Service is directed to assist the Sheriff in locking the doors, while at the same time, acting reasonably with respect to timing and methods.

[39] Access should be allowed to the property for necessary inspections, maintenance and repairs on notice to the applicant’s counsel and with the assistance of the Aylmer Police Service.

[40] This order remains in effect until the gathering limit for a religious service under the continued s. 7.0.2 order within the meaning of s. 1 of the ROA changes to permit 30 percent or more of the capacity. Upon that change in the order taking place, the respondents may bring this matter back to this Court on two days notice to define what, if any, restrictions to access continue to apply. Until a further determination, or until a total withdrawal of gathering limits by the province, the doors remain locked. I have not acceded to the applicant’s request here that I lock the Church until there are no gathering limitations. The Church functioned in the past with the 30 percent restriction. I am hopeful it can again in the future. In addition, I recognize that by locking the Church, I am punishing more than just these contemnors. I am hopeful that once the restrictions are eased, Pastor Hildebrandt will see that his foremost responsibility is to his congregation.

[41] The applicant will have its partial indemnity costs fixed at $69,000. all inclusive to be paid by the respondents jointly and severally.

[42] The costs are payable to the provincial Minister of Finance within 90 days. I have not provided for substantial indemnity costs as I have applied the totality principle in sentencing and taken into account the global monetary penalties and what I view as the means of the contemnors to pay. I note, however, that the respondents were aware at the time of the restraining order that the applicant would seek its costs if the matter progressed to a contempt finding.

[43] Having locked the Church facility as part of the sentence for contempt, the claim for injunctive relief is dismissed.

Regional Senior Justice B. G. Thomas

Released: May 14, 2021.

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

THE CHURCH OF GOD (RESTORATION) AYLMER, HENRY HILDEBRANDT, ABRAM BERGEN, JACOB HIEBERT, PETER HILDEBRANDT, SUSAN MUTCH, ELVIRA TOVSTIGA and TRUDY WIEBE

REASONS FOR SENTENCE

Thomas, RSJ.

Released: May 14, 2021