The Attorney General of Ontario v. Trinity Bible Chapel, 2021 ONSC 740

COURT FILE NO.: 21-95

DATE: 2021-02-01

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: The Attorney General of Ontario v. Trinity Bible Chapel, Jacob Reaume, Will Schuurman, Dean Wanders, Randy Frey, Harvey Frey and Daniel Gordon

BEFORE: The Honourable Mr. Justice P.R. Sweeny

COUNSEL: R. Ogden, J. Hunter, M. Chung, A. Huckins for the Applicant L. Bildy, S. Hassan, H. Parmar for the Respondents

HEARD: January 27, 2021

ENDORSEMENT

INTRODUCTION

[1] This is a motion for contempt brought by the Applicant against the Respondents for breach of my order issued January 22, 2021 (the “Order”).

[2] The Order reads, inter alia, as follows:

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, are restrained from directly or indirectly, by any means whatsoever, contravening Ontario Regulation 82/20, by holding gatherings of more than 10 persons in conjunction with the operations of Trinity Bible Chapel.

[3] Trinity Bible Chapel (the “Church”) is located at 1373 Lobsinger Line in the Township of Woolwich, in the Regional Municipality of Waterloo. Harvey Frey, Dean Wanders, and Daniel Gordon are officers and directors of the Church. Jacob Reaume, Will Schuurman, Dean Wanders, Randy Frey, Harvey Frey and Daniel Gordon are described on the Church’s website as “elders”. These individuals are persons responsible for the Church within the meaning of the Stage 1 Regulation.

[4] This contempt motion record was served on counsel for the Respondents and on some Respondents personally. At the outset of the motion, I confirmed that the Respondents all had notice of the proceeding and were represented by counsel. They did not want an adjournment to provide evidence or cross-examine any witness on the issue of whether they were in contempt of my Order. They did not oppose the finding. I have reviewed the motion record and the factum of the Applicant and heard submissions of counsel for the Applicant and the Respondents. I orally advised that I found all the Respondents in contempt of my Order of January 22, 2021. The matter was adjourned for a sentencing hearing on a date to be set.

[5] I advised that brief written reasons would follow. These are those reasons.

THE LAW OF CONTEMPT

[6] In Carey v. Laiken, 2015 SCC 17, at para. 30, the court said the following about contempt:

Contempt of court “rest[s] on the power of the court to uphold its dignity and process. . . . The rule of law is directly dependent on the ability of the courts to enforce their process and maintain their dignity and respect”: United Nurses of Alberta v. Alberta (Attorney General), 1992 CanLII 99 (SCC), [1992] 1 S.C.R. 901, at p. 931. It is well established that the purpose of a contempt order is “first and foremost a declaration that a party has acted in defiance of a court order”: Pro Swing Inc. v. Elta Golf Inc., 2006 SCC 52, [2006] 2 S.C.R. 612, at para. 35, cited in Bell ExpressVu Limited Partnership v. Torroni, 2009 ONCA 85, 94 O.R. (3d) 614, at para. 20.

[7] In Ting v. Borrelli, 2020 ONSC 5976, at para. 29, Diedrich J. succinctly articulated the test for contempt set out at paras. 32–35 of Carey as follows:

The moving party must prove beyond a reasonable doubt the following three factors: a) the order alleged to have been breached must state clearly and unequivocally what should and should not be done; b) the party alleged to have breached the order must have had actual knowledge of it; and c) the party allegedly in breach must have intentionally done the act the order prohibits or intentionally failed to do the act the order compels.

[8] Charter procedural protections apply to contempt proceedings. However, contempt proceedings may proceed summarily, including by way of affidavit evidence against the Respondent, and such a process does not violate s. 7 of the Charter as long as the principles of fundamental justice are observed. These include the right to cross-examine on the affidavit evidence. The Respondents in this case did not seek an opportunity to cross-examine or seek an adjournment of this motion on the finding of contempt.

[9] It is important to note that the Respondents cannot defend this contempt motion by arguing that the law under which the Court made the Order is unconstitutional. As the Court of Appeal noted in Ontario (Attorney General) v. Paul Magder Furs Ltd. (1991), 1991 CanLII 7053 (ON CA), 85 D.L.R. (4th) 694 at 698 (Ont. C.A.):

The charter is no license to break the law or defy an order of the court. It is elementary that so long as a law or an order of the court remains in force it must be obeyed.

[10] The Respondents have not brought a Charter application in this case. The Respondents were given 30 days to seek to vary or discharge my Order. They have not done so.

[11] As Wagner J. (as he then was) noted in Morasse v. Nadeau-Dubois, 2016 SCC 44, [2016] 2 S.C.R. 232, at para. 124:

The rule of law underpins our freedoms and is the very foundation of the Canadian Charter (B.C.G.E.U.), the preamble to which states: “. . . Canada is founded upon principles that recognize … the rule of law”. Indeed, the rule of law is the reason why our freedoms, including freedom of expression, continue to thrive today. Wood J. explained this eloquently in Bridges:

Everything which we have today, and which we cherish in this free and democratic state, we have because of the rule of law. Freedom of religion and freedom of expression exist today because of the rule of law. Your right to hold the beliefs you do, to espouse those beliefs with the fervour which you do, and to attempt to persuade others to your point of view, exists only because of the rule of law. Without the rule of law there is only the rule of might. Without the rule of law the Canadian Charter of Rights and Freedoms, which some of you sought to invoke, would be nothing but another piece of parchment adrift in the timeless evolution of man’s history. [p. 156]

[12] Contempt proceedings are usually bifurcated into two stages: (1) finding of contempt; and (2) sanction. This can provide the contemnor a chance to purge his or her contempt.

[13] This matter before me is on the issue of a finding of contempt only. The issue of sanction or sentence is to be addressed at a later date.

ANALYSIS

[14] I shall address each of the three elements of the test that the Applicant must establish beyond a reasonable doubt.

(1) Is the Order clear?

[15] The Order is clear. The Respondents are restrained from directly or indirectly, by any means whatsoever, contravening Ontario regulation 82/20 by holding gatherings of more than 10 persons in conjunction with the operations of the Church.

[16] The Respondents’ counsel participated in determining the content of the order. The Respondents do not dispute that the order was clear.

(2) Did the Respondents have notice of the Order?

[17] It established beyond a reasonable doubt that the Respondents had notice of the order. It was given to them by their counsel. Their counsel confirmed that she had sent the order to each of them. The Respondents do not dispute that they had notice of the order.

(3) Did the Respondents breach the Order?

[18] The municipal bylaw enforcement officers observed approximately 225 people enter the Church on the morning of Sunday, January 24, 2021. In addition, there is a video of the service, which was livestreamed. There is also a photograph showing a gathering of more than 50 people inside the Church. The Respondents do not dispute that they breached the Order.

[19] I am satisfied beyond a reasonable doubt that the Church intentionally acted in a manner that was in breach of the Order when approximately 225 people gathered inside the Church.

[20] Directors and officers of a corporation can be held in, and punished for, contempt of court. The violation of an injunction may give rise to a presumption that the director or officer did, or failed to do, something that caused the breach, and may put that officer or director on his or her defence. However, it is clear that an officer or director may not be punished for contempt where the evidence suggests that the director or officer did all that he or she could do to ensure that the injunction would be abided by, and where the breach occurred without any fault on the part of the director or officer: see Canada Metal Co. v. Canadian Broadcasting Corp. (No. 2) (1974), 1974 CanLII 835 (ON SC), 4 O.R. (2d) 585 at 604–05 (H.C.), aff’d (1975), 1975 CanLII 544 (ON CA), 11 O.R. (2d) 167 (C.A.).

[21] There is no evidence in this case put forth by the personal Respondents that they did anything to ensure that the injunction would be abided by. Indeed, the evidence is to the contrary.

[22] Jacob Reaume is the Senior Pastor and an elder of the Church. I am satisfied that Mr. Reaume intentionally acted in a manner that was in breach of the Order when he let a gathering of approximately 225 people inside the Church. The evidence establishes that Mr. Reaume expressed his intention to hold the services on January 24, 2021, by posting it on the Church’s website. There is no evidence that Mr. Reaume did all that he could do to ensure that the Order would be abided by, nor that the breach occurred without any fault on his part. To the contrary, Mr. Reaume, along with all of the Church elders, wrote to the Church membership on December 24, 2020, exhorting members to engage in “civil disobedience”.

[23] Will Sherman is an Associate Pastor and elder of the Church. I am satisfied beyond a reasonable doubt that he intentionally acted in a manner that was a breach of the Order when approximately 225 people gathered for a Church service on the property. There is no evidence that Mr. Sherman did all that he could do to ensure that the Order would be abided by, nor that the breach occurred without any fault on his part. To the contrary, Mr. Sherman told municipal law enforcement officers that attended the property that he was aware of the Order and confirmed that the Church would proceed with the religious service, nevertheless. In addition, Mr. Sherman, along with all of the Church elders, wrote to the Church membership on December 24, 2020, exhorting members to engage in “civil disobedience”.

[24] Harvey Frey is a Church elder. He is also director of the Church corporation. I am satisfied beyond a reasonable doubt that he intentionally acted in a manner that caused the Church to hold the service on January 24, 2021. There is no evidence that Mr. Frey did all that he could do to ensure that the Order would be abided by, nor that the breach occurred without any fault on his part. To the contrary, Mr. Frey, along with all of the Church elders, wrote to the Church membership on December 24, 2020, exhorting members to engage in “civil disobedience”.

[25] Randy Frey is a Pastor of Christian Education and a Church elder. I am satisfied beyond a reasonable doubt that he intentionally acted in a manner that caused the Church to hold the service on January 24, 2021. There is no evidence that Mr. Frey did all that he could do to ensure that the Order would be abided by, nor that the breach occurred without any fault on his part. To the contrary, Mr. Frey, along with all of the Church elders, wrote to the Church membership on December 24, 2020, exhorting members to engage in “civil disobedience”.

[26] Dean Wanders is a Church elder. He is also Director of the Church corporation. I am satisfied beyond a reasonable doubt that he acted in a manner that caused the Church to hold the service on January 24, 2021. There is no evidence that Mr. Wanders did all that he could do to ensure that the Order would be abided by, nor that the breach occurred without any fault on his part. To the contrary, Mr. Wanders, along with all of the Church elders, wrote to the Church membership on December 24, 2020, exhorting members to engage in “civil disobedience”.

[27] Daniel Gordon is a Church elder and Director of the Church corporation. I am satisfied beyond a reasonable doubt that he intentionally acted in a manner that caused the Church to hold the service on January 24, 2021. There is no evidence that Mr. Gordon did all that he could do to ensure that the Order would be abided by, nor that the breach occurred without any fault on his part. To the contrary, Mr. Gordon, along with all of the Church elders, wrote to the Church membership on December 24, 2020, exhorting members to engage in “civil disobedience”.

CONCLUSION

[28] All three requirements for contempt have been established by the Applicant, beyond a reasonable doubt, for each of the Respondents. Accordingly, I find that the Respondents Trinity Bible Chapel, Jacob Reaume, Will Schuurman, Dean Wanders, Randy Frey, Harvey Frey and Daniel Gordon are all in contempt of the Order of January 22, 2021.

[29] I note that the Respondents, represented by counsel, did not challenge the findings that they were in contempt of the Order of January 22, 2021.

[30] The matter is adjourned to February 11, 2020, at 10:00 a.m., to address the issue of sentence.

Sweeny R. S. J.