CALGARY: The Justice Centre for Constitutional Freedoms is pleased to announce that the Alberta Health Services (AHS) Contempt of Court Application against Calgary pastor Tim Stephens, of Calgary's Fairview Baptist Church, has been abandoned by AHS and will not be going to a hearing.
Lawyers for the Justice Centre, Leighton B.U. Grey Q.C. and James S. M. Kitchen, brought an Application to Strike the Contempt Application after discovering that AHS never served Pastor Stephens with the court order he was accused of having violated, a requirement under the order. Faced with this undeniable evidence, AHS has conceded that continued prosecution and attempts to have Pastor Stephens found in contempt of court are hopeless. This drops the case against Pastor Stephens completely.
Pastor Stephens was arrested and jailed after leading a church service at Fairview Baptist on May 16, 2021, allegedly for violating the terms of a May 6 court injunction issued against Whistle Stop Café in Mirror, Alberta, and certain affiliated individuals. The injunction order allowed AHS to instruct police to arrest Whistle Stop owners and other citizens upon notice of the order if they dared to continue exercising their Charter rights and freedoms contrary to public health orders.
Pastor Stephens was imprisoned in the Calgary Remand Centre for 3 days before Justice Centre lawyers could secure his release.
The arrest and confinement of Pastor Stephens was unlawful for two reasons. First, the Thursday, May 6, 2021 injunction, which originally applied to all Albertans who had notice of its terms, was amended by Associate Chief Justice Rooke on May 13 to only apply to Whistle Stop Café and individuals operating in concert with or under the direction of Whistle Stop Café or its proprietor. Pastor Stephens has no connection to either party.
Second, Pastor Stephens was never served with a copy of the court injunction, a prerequisite for the enforcement of an injunction. On May 9, 2021, Calgary Police Service (CPS) officers erroneously served a copy of the injunction upon another individual who is not Pastor Stephens. At no time did CPS ever serve the injunction upon Pastor Stephens.
The Justice Centre informed the Court and AHS of the lack of service upon Pastor Stephens, at his May 18, 2021 bail hearing, and asked AHS for proof of personal service. When this evidence was not provided, the Justice Centre filed a court application to have AHS’ contempt application struck. CPS confirmed their error. In consequence, AHS lawyers agreed to the discontinuance of the case against Pastor Stephens.
Pastor Stephens has been ticketed several times for allegedly breaching Dr. Deena Hinshaw’s public health orders. The Justice Centre still represents Pastor Stephens on these outstanding allegations.
The arrest of Pastor Stephens occurs against the backdrop of the Justice Centre’s ongoing legal challenges in two separate court actions against the Alberta lockdowns. To date, the Alberta Government has failed to produce any medical or scientific evidence, in either court action, that might justify its public health orders as required by the Charter. Lawyers for Alberta have repeatedly delayed court proceedings with procedural motions and adjournments rather than face judicial scrutiny of the health orders.
The May 6 injunction order was originally worded such that it applied not only to Whistle Stop Café and certain activists, but to every Albertan having notice of this May 6 injunction, otherwise known as “John and Jane Doe”.
AHS boasted in a May 6 news release that it “sought and received a court order against all other organizers of advertised illegal gatherings and rallies breaching COVID-19 public health orders.” Suddenly, Albertans gathering outdoors in numbers larger than five could be locked up in jail immediately, without any ability to defend themselves against unconstitutional health orders.
An injunction that applies to the entire population departs radically from precedents that require injunctions to be limited only to named individuals, or to a very narrow category of citizens who can be identified by way of a specific description.
On May 13, 2021, the Justice Centre appeared in court to amend the AHS injunction, such that it would no longer apply to every Albertan. Lawyers for AHS, aware that the May 6 order was overbroad, consented to this change. The judge amended the injunction shortly after 10:00 a.m. on May 13. From that moment onward, it applied only to the named respondents and those acting in concert with them, not to every Albertan. The CBC, Canadian Press, and other media were present (virtually) in court, but failed to report on the amendment to the injunction.
After the amendment, the Justice Centre informed the Calgary Police Service and other police forces in Alberta that the order no longer applied to the public at large, but only to certain individuals affiliated with Whistle Stop Café. The police continued to make arrests even after being informed of this court order amendment, presumably on the instruction of AHS.
“Covid does not suspend or nullify people’s Charter rights. In wrongfully arresting and imprisoning Pastor Stephens, AHS proved once again that it is far more interested in punishing dissent than paying attention to legal details, like requirements for notice and the constitutional constraints on its power”, states Mr. Cameron.
“By waging constant war on civil liberties and by refusing to justify demonstrably, with evidence put before a court, the ongoing violations of Charter rights and freedoms, it is AHS and the Alberta government who are disobeying the rule of law.