Kelowna church leader fails in challenge of ticket issued for gatherings during the pandemic | Canadian

An attempt by a Kelowna church leader to challenge the ticket he got when he broke pandemic-related gathering orders, as well as the order itself, has been tossed out by the courts.

Arthur Charles Lucier is the pastor of the Kelowna Harvest Church located at 1643 Harvey Ave.

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On Jan. 24, 2021, he was issued a ticket for contravening the Emergency Program Act after organizing a gathering at the Harvest Church after the Gathering and Events Order had been issued by provincial health officer Dr. Bonnie Henry. While the penalty came with no jail time, it did carry a fine of $2,300.

“The purpose of the Provincial Health Act is ultimately to protect the public from health hazards,” Provincial court judge Clarke Burnett wrote in the decision released Wednesday. “It provides for properly trained and licenced individuals, including physicians, to take steps to eliminate or ameliorate health hazards. It authorizes these individuals to do so by granting them the authority to issue orders to prevent or address a particular health hazard.”

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Lucier was one of the more vocal opponents of the order, however, holding regular church services and even a few protest rallies to make his case that people should have been able to meet face-to-face during the height of the pandemic.

He often claimed his Charter rights were being infringed upon and he once boasted through his social media that he had incurred at least half a dozen tickets aimed at deterring people from gathering. The provincial health officer explained often the restrictions were put in place to minimize the spread of COVID-19 in the days before vaccines became available.

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In the case of the ticket at hand, Lucier disputed its issuance and filed a Notice of Constitutional Question, challenging the validity of the Gathering and Events Order, saying it infringes a number of his rights guaranteed by the Canadian Charter of Rights and Freedoms.

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Crown counsel opposed Lucier’s Charter challenge arguing, among other things, that it is a collateral attack against an administrative order.

Crown argued the Provincial Health Act provides for a reconsideration of an order issued by the Provincial Health officer, and Lucier should have gone down that route. Then, if he was dissatisfied with the result, he could have asked for a judicial review.

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Burnette agreed with that argument, noting that the rule prohibits an attempt to challenge an order made in another separate legal proceeding.

“As I have found that all five factors clearly suggest that it was the legislature’s intention not to allow a collateral attack on orders issued by the Public Health Order under the Public Health Act, the inescapable conclusion is that allowing Pastor Lucier to proceed with a Charter challenge would be an impermissible collateral attack on the Jan. 8, 2021 G&E Order,” the provincial court judge said.

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“Pastor Lucier had options available to him to seek redress from the Jan. 8, 2021 Gathering and Events Order. He could have sought a reconsideration under the Provincial Health Act; he could have pursued a Judicial Review pursuant to the JPRA; or he could have pursued both.”

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However, instead of doing so, Burnett said that Lucier chose to ignore the Jan. 8, 2021 Gathering and Events Order and sought to challenge it in this prosecution.

In an earlier case it was described as “breach first, challenge later” which is not allowed.

“I find that Pastor Lucier’s Charter challenge must be summarily dismissed on the basis that it would be an impermissible collateral attack on the PHO’s Jan. 8, 2021 Gathering and Events Order,” Burnett said.

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