Alberta Health Services v Street Church Evangelism Ministries International Foundation (Street Church), 2021 ABQB 489

Court of Queen’s Bench of Alberta Citation: Alberta Health Services v Street Church Evangelism Ministries International Foundation (Street Church), 2021 ABQB 489 Date: 20210629 Docket: 2101 05232 Registry: Calgary Between: Alberta Health Services Applicant - and - Street Church Evangelism Ministries International Foundation, aka Street Church, aka Fortress (Cave) of Adullam, and Artur Pawlowski Respondents _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice A.W. Germain _______________________________________________________ A.

Introduction [ 1 ] Alberta Health Services (AHS) claims Calgary-based Street Church Pastor, Artur Pawlowski, breached an order of the Court of Queen’s Bench granted on April 23, 2021 by Justice David M. Gates (the Gates Order), in favor of AHS; and that the breach amounted to contempt. I have concluded that a breach occurred that amounts to contempt of the Gates Order. I have also concurrently issued two other rulings involving other respondents relating to the same or similar issues. Similar legal principles apply in each case. I

have purposely repeated myself throughout the rulings to provide transparency without resort to the companion rulings. The companion rulings are: Alberta Health Service v Pawlowski , 2021 ABQB 493 ; Alberta Health Service v Scott , 2021 ABQB 490 . B. The Facts [ 2 ] Before reviewing the position of the parties, I wish to outline the noncontroversial facts. [ 3 ] The Gates Order was an inspection order allowing AHS the right to inspect municipal property described as 4315-26 Avenue Southeast Calgary, Alberta (the Property) as permitted by

section 59 of the Public Health Act , 2000 RSA, c P 27 (the Act ). Paragraph 2 of the Gates Order restrained Artur Pawlowski from obstructing, molesting, hindering or interfering with the inspection powers of the executive officers under the Act . [ 4 ] The church operates out of the Property on Saturday mornings. On Saturday, April 24, 2021, at 8:10 AM an officer of AHS, together with members of the Calgary Police Service (CPS), arrived at the location and approached Pastor Artur Pawlowski. They served him with a copy of the Gates Order.

A video was taken of this interaction and it is attached as an exhibit to the Affidavit, sworn May 4, 2021, filed in support of this application. [ 5 ] The video establishes beyond a reasonable doubt AHS did not gain access to the Property to conduct an inspection due to the actions of Pastor Pawlowski and, after 2 ½ minutes of increasing verbal conflict, AHS departed the target address. C. The Position of the Parties [ 6 ] As AHS must establish the allegation of contempt beyond a reasonable doubt, I have outlined their position first.

Their submission is that the three-part test of establishing a breach of a court order have all been met, being: knowledge, certainty of the terms of the order, and deliberate conduct. [ 7 ] The position of the Respondent is multifaceted. The key element of it, however, is that AHS did not fairly allow Pastor Pawlowski an opportunity to review, consider, and act upon the Gates Order.

In the short period of time of the interaction it cannot be established beyond a reasonable doubt that Pastor Pawlowski understood the Gates Order, refused to obey the Order, and has taken no subsequent steps to permit compliance with the Order. The Respondent also raises other issues which I will discuss in my legal analysis. D. Legal Analysis 1. The Burden of Proof Required for a Finding of Contempt. [ 8 ] A judge considering whether a contempt of a court order has occurred must determine the existence of three essential elements, discussed below, to a level of proof beyond a reasonable doubt.

The Supreme Court of Canada in R v Starr , 2000 SCC 40 (at para 50 ) described proof beyond a reasonable doubt as something less than absolute certainty, but much greater than probable guilt. This is the standard that I propose to apply. 2. The Test for Contempt [ 9 ] Three elements are required for a finding of contempt:

(1) That the order alleged to have been breached must state clearly and unequivocally what should and should not be done;

(2) That the party alleged to have breached the order must have had actual knowledge of it; and

(3) The party allegedly in breach must have intentionally done the act that the order prohibited or intentionally failed to do the act that the order compelled ( Carey v Laiken , 2015 SCC 17 at paras 32-35 [ Carey ]). [ 10 ] Even if the test is made out beyond a reasonable doubt, if a respondent has taken reasonable steps to comply with the order, the Court retains the discretion to deny an application for contempt ( Carey at para 47 ). 3.

Applying the Facts to the Test [ 11 ] Before dealing with the submissions of counsel for Pastor Artur Pawlowski, I summarize the factual findings of this ruling. [ 12 ] The Gates Order stated clearly what needed to be done by Pastor Pawlowski: he had to allow an inspection of the Property by the AHS. [ 13 ] Actual service of the Gates Order took place. Criticisms about how the Order was obtained do not affect that reality.

It was explained to him, during a discussion made uncomfortable by Pastor Pawlowski’s conduct, so he knew that the Order required an inspection and he responded: “you can make an appointment you Gestapo! Another day another day.” [ 14 ] Pastor Pawlowski did not permit the AHS Officer to enter the Property in order to conduct the intended inspection. Pastor Pawlowski in his written materials admits that he told the AHS Officer and the CPS to leave, which they did. Therefore, there is

overwhelming evidence that Pastor Pawlowski intentionally breached the terms of the Gates Order, and by doing so was in contempt of it. [ 15 ] I now deal with the objections and defences raised by Pastor Pawlowski. 4. Reviewing the Defences Raised i. The Court should decline to find Contempt because of the ex parte nature of the Gates Order [ 16 ] Pastor Pawlowski and AHS were in a long-running dispute about AHS’s desire to reduce the spread of Covid-19 with restrictions placed on the manner in which churches held their services.

Pastor Pawlowski’s material filed in this case expresses his disbelief that AHS would get an ex parte order. That the order obtained was granted on an ex parte basis is no defence to a contempt application. [ 17 ] The enabling legislation specifically permits this type of procedure and there is no obligation on the part of AHS to give notice. Ex parte orders are often obtained in cases of this nature. The only impact of the ex parte order is that knowledge must be imparted in some fashion to the target.

In this case, the knowledge was imparted by direct personal service and an attempt by the AHS Officer to explain what they wanted to achieve. ii. The Gates Order wasn’t clear enough [ 18 ] Pastor Pawlowski admits that the obligation to allow inspection was established in the Gates Order; however, he asserts that paragraph 4 of the Order qualifies the paragraph 2 obligation by adding the element of a reasonable opportunity to comply.

He submits this vagueness means that given the short period of time between service of the Gates Order and the withdrawal of the AHS Officer from the inspection location means that Pastor Pawlowski was not given a sufficient opportunity to obey the Order. [ 19 ] I accept as a legal proposition that a contemnor is entitled to the most favourable

interpretation of an order that is vague or capable of a range of meanings. However, I find no vagueness here. Paragraph 4 restricts the power of arrest by first allowing an opportunity to comply. It does not provide a further definition qualifying Pastor Pawlowski’s ability to resist compliance for a further “reasonable” period of time. Pastor Pawlowski refused to allow the inspection on that day and time.

His belligerent refusal is a direct and wilful obstruction of the Gates Order. [ 20 ] Counsel for Pastor Pawlowski wishes to make much of the fact that the CPS did not attempt to arrest Pastor Pawlowski, preferring instead to withdraw. That is not determinative of the three-part test. Further, the fact that Pastor Pawlowski may later have complied with the order does not mean that on April 24, 2021 at 8:50 AM he was not in breach of the Gates Order. This defence fails; the Gates Order was clear on its face that he had to allow inspections by the AHS, on their timeline not his. iii.

AHS has not proven actual knowledge on the part of Pastor Pawlowski [ 21 ] The next issue raised by Pastor Pawlowski is that mere service personally on him is not enough to prove actual knowledge beyond a reasonable doubt. Usually it is; however, here factually there was more. [ 22 ] The additional element proving knowledge was the discussion between the AHS Officer and Pastor Pawlowski. This includes the statement by the AHS Officer making clear that she was there to inspect the Property and Pastor Pawlowski’s specific denial that she could do so with an indication that she could not do it on that day.

Counsel’s argument is courageous, but cut down by the facts. I’m satisfied beyond a reasonable doubt that Pastor Pawlowski was served with the Gates Order and knew what it sought to achieve; he blocked the achievement of that purpose.

I reject the suggestion that Pastor Pawlowski made the “you gestapo” comment because he wished to have more time to review the Gates Order and to obtain legal advice before permitting the AHS Officer entry to the Property for the purpose of conducting an inspection. [ 23 ] In light of my finding beyond a reasonable doubt of actual service of the Gates Order, actual knowledge of its content and obligations, and actual refusal to obey the Order, it is not necessary for me to consider the issue of wilful blindness as a method of alternate proof of the knowledge requirement. iv.

AHS has not negated “a reasonable excuse” for non-compliance with the Gates Order [ 24 ] Pastor Pawlowski submits that although he did not allow entry to the church it was not without reasonable excuse. Our Alberta Court of Appeal in Envacon Inc v 829693 Alberta Ltd , 2018 ABCA 313 [ Envacon ] reminds trial judges that the concept of a reasonable excuse may determine the outcome of a contempt application; it does not merely go to remedy or penalty. [ 25 ] I disagree with defence counsel that AHS must factually negate a reasonable excuse in all cases.

Envacon points out that in some cases the breach is so apparent on its face there is no possibility of a reasonable excuse. Counsel’s position is inconsistent with the Court of Appeal’s decision in Envacon . At paragraphs 42 to 50, the Court stated: 2. Burdens of Proof [42] With respect to civil contempt, Carey makes clear that the party alleging contempt must prove beyond a reasonable doubt the three requirements for a finding of contempt (clear order binding on the alleged contemnor of which the contemnor has notice and which

the contemnor intentionally breached); see also Morasse v Nadeau-Dubois, 2016 SCC 44 at paras 19–21 , [2016] 2 SCR 232 . The persuasive burden is on the party alleging contempt and that party also has the burden to adduce evidence or point to evidence on the record, to support the allegations. So, by the time the topic of reasonable excuse comes up , the party seeking a contempt finding will have already proven the prima facie breach. [43] The difficult question is whether the words “without reasonable excuse” in rule 10.52(3)(

a) somehow alter the burden on the party alleging contempt or imposes a burden on the alleged contemnor? Said another way, does an evidential or persuasive burden apply to a reasonable excuse for what is proven beyond a reasonable doubt (contempt by disobedience to a court order). There may often be not much practical difference when the prima facie case of contempt is shown and the only evidence of the alleged excuse must be given by the alleged contemnor. But it is not always so. [44] For one type of non-compliance, the proffered excuse might be easy to see.

For another, there might have to be rather compelling evidence to avoid a finding of contempt. For a type of non-compliance which is said to be excused on a basis that only the alleged contemnor would know, one would assume that the alleged contemnor must produce that evidence. For yet another type of non- compliance, it may be that the excuse is revealed in the overall circumstances without any need for the alleged contemnor to prove anything because as a matter of legal principle or policy a finding of contempt would work an injustice in the circumstances of the case.

Further, an excuse may apply to part of the alleged contempt but not to another part. [45] In many cases, the moving party’s burden of proof will be met by proving non- compliance with the order because, absent persuasive evidence to the contrary, the court would be entitled to infer “no reasonable excuse.” [emphasis mine [46] There are conflicting lines of authority in the Court of Queen’s Bench about who has the burden of proving whether an alleged contemnor is “without reasonable excuse.” One line of cases holds that the burden of proof is with the party alleging contempt: Schitthelm at paras 40–57 , Amalgamated Transit Union, Local No 569 v Edmonton (City), 2015 ABQB 620 at paras 55–57 , [2015] AJ No 1395 (QL) , and 473440 Alberta Ltd v Lenaco Homes Masterbuilder Inc, 2017 ABQB 538 at paras 44–55 , [2017] AWLD 5051 .

These cases suggest that the alleged contemnor has an evidential burden to put forth some evidence in support of its excuse, but the persuasive burden to establish that the excuse is not reasonable remains with the party alleging contempt. [47] The second line of authority holds that once the party alleging contempt has proven beyond a reasonable doubt that the alleged contemnor has breached a clear court order of which he or she had notice, the persuasive burden shifts to the alleged contemnor to prove on a balance of probabilities that he or she had a reasonable excuse: FIC Real Estate Fund Ltd v Lennie, 2014 ABQB 105 at paras 74–83 , [2014] AJ No 184 (QL) .

This was the approach followed by the case management judge in the decision under appeal. [48] In our view, the addition of the words “without reasonable excuse” in rule 10.52 (3)(

a) do not change the burden on the party alleging contempt. But, although the alleged contemnor has no persuasive or evidentiary burden, nonetheless the court is entitled to presume that the alleged contemnor acted with knowledge of the facts, unless there is some evidence to the contrary from the alleged contemnor who alone can know on what belief he acted and on what ground the belief, if mistaken, was held: Sweet v Parsley, [1970] AC 132 at 164, [1969] UKHL 1 , citing Woolmington v Director of Public Prosecutions, [1935] AC 462, [1935] UKHL 1 .

Consequently, as a matter of tactics and prudence, in order to avoid a finding of contempt, the alleged contemnor may be compelled by the weight of adverse evidence establishing contempt, to put forward countervailing evidence either to provide a reasonable excuse or to prove that it did what was required of the order. [49] However, this is not a “shifting of a burden” because the alleged contemnor is not obliged to do anything. “The decision of a party to go forward with evidence because the risk of an adverse verdict is too great is not a question of law but a matter of common sense.

Since the [alleged contemnor] is not required by law to do anything, this tactical decision to adduce evidence is not an evidential burden (using the definition in this text) and thus there is no shifting of the evidential burden:” Sopinka, Letterman & Bryant, The Law of Evidence in Canada, 4th ed. (Markham, Ont: LexisNexis Canada, 2014) at para 3.53 and cases cited therein. [50] In sum, the burden of proof both as to persuasion and the need for evidence is entirely on the party alleging contempt, and the standard is proof beyond a reasonable doubt.

In the main, this is the approach advocated in Schitthelm except for its suggestion that there is an evidential burden on the alleged contemnor. There is no burden placed on the alleged contemnor at all. It follows that the competing approach in FIC Real Estate and adopted by the case management judge is incorrect. [ 26 ] Although under no obligation to do so, Pastor Pawlowski elected to suggest in his affidavit reasons for his failure to obey the Gates Order.

The list of excuses for not complying all revolve around Pastor Pawlowski’s difficulties in dealing with AHS and his perception that AHS enforcement was uneven and unduly aggressive toward himself and his church. He also cites his historic antecedents about a difficult youth spent in totalitarian regimes. These do not constitute reasonable excuses in my view.

I reject any suggestion that Pastor Pawlowski had a reasonable excuse for responding the way he did to the AHS Officer. [ 27 ] Absent persuasive evidence to the contrary, (per para 45 of Envacon ) , I am entitled to infer Pastor Pawlowski had “no reasonable excuse” for refusing to allow the AHS Officer to enter the church for the purpose of conducting an inspection.

In my view, the entry was refused because Pastor Pawlowski was in breach of the Gates Order, knew it, and didn’t want AHS to find the evidence that he was conducting a church service in breach of the regulatory AHS Public Health Orders affecting church services. Indeed, his counsel admits in paragraph 54(

h) of the Respondent’s written submissions that people were not social distanced or masked and there was a gathering in excess of the 15% capacity limit. v. The Court should exercise its discretion to not find contempt because Pastor Pawlowski has either purged his contempt or has not been given an opportunity to do so [ 28 ] The intention of AHS in approaching the church at that time and date was because they believed strongly that Pastor Pawlowski was conducting a church service contrary to the Public Health Orders.

It is of no consequence for a submission to be made after the fact that he would allow an inspection at another time. Nor, does obeying later inspections militate against the clear and unequivocal finding of a contempt. While it is possible for somebody to purge a contempt, it is not possible for the contempt to be purged

in all cases. In this particular case, this was a serious breach of an AHS order obtained to protect public health. Half-hearted attempts to allow subsequent inspections do not constitute evidence of purging the contempt that occurred on April 24, 2021. Nor does subsequent obedience of the Gates Order militate against the breach when it occurred. E. Conclusion [ 29 ] On April 24, 2021, Pastor Artur Pawlowski, on behalf of himself and his church, breached the Court Order issued by the Honorable Justice David Gates on April 23, 2021 and by breaching that Order he was in contempt of it.

All of the essential elements required for a finding of contempt have been proven, beyond a reasonable doubt, in this case. There was no reasonable excuse. [ 30 ] A date will be set for determining the sanction that should be imposed. Heard on the 26 th day of May, 2021. Dated at the City of Calgary, Alberta this 28 th day of June, 2021. A.W. Germain J.C.Q.B.A. Appearances: John Siddons, & Kyle Fowler for Alberta Health Services, the Applicant Sara Miller, JSS Barristers for the Respondents