R. v. Lucier, 2022 BCPC 191

Citation: R. v. Lucier 2022 BCPC 191 Date: 20220921 File No: AJ24531528-1 Registry: Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. ARTHUR CHARLES LUCIER REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE C. BURNETT Counsel for the Crown: M. Rankin and J. Saris Counsel for the Defendant: P. Jaffe Place of Hearing: Kelowna , B.C. Date of Hearing: April 13, 14, June 22, 2022 Date of Judgment: September 21, 2022

Introduction [ 1 ] Arthur Charles Lucier (“Pastor Lucier”) is the Pastor of the Kelowna Harvest Church (the “Church”) located at 1643 Harvey Avenue in the City of Kelowna. On January 24, 2021, he was issued a violation ticket (the “Ticket”) alleging that he contravened s. 4(1) of the Emergency Program Act [RSBC 1996],

Chapter 111 (the “ EPA ”). [ 2 ] The Ticket was issued as a result of Pastor Lucier organizing a gathering at the Church in contravention of a Gathering and Events Order issued by Dr. Bonnie Henry, the Provincial Health Officer (the “PHO”), pursuant to the Public Health Act [SBC 2008],

Chapter 28 (the “ PHA ”), to minimize the spread of SARS-CoV-2. [ 3 ] Pastor Lucier has disputed the issuance of the Ticket and has filed a Notice of Constitutional Question challenging the validity of the issuance of the Gathering and Events Order on the basis that it infringes a number of his rights guaranteed by the Canadian Charter of Rights and Freedoms (the “ Charter ”). [ 4 ] The Crown is opposed to Pastor Lucier’s Charter challenge and asks that I dismiss it without the necessity of holding a full evidentiary hearing. [ 5 ] At the commencement of the trial, a Vukelich hearing was declared and over a period of three days, I heard submissions from the parties on the issue of whether I should summarily do so. [ 6 ] The facts upon which their submissions were based were agreed to as between the parties and were reduced to writing in two Agreed Statements of Facts with attachments filed with the court.

Background [ 7 ] In January of 2020, the first signs of concern arose regarding a virus capable of causing serious illness being transmitted worldwide.

Within a short span of time, this country and others were well acquainted with the SARS-CoV-2 virus and knew that it was causing outbreaks of the disease referred to as COVID-19. [ 8 ] The scientific and medical community determined that people infected with the virus can infect other people by way of direct contact, through droplets in the air, or from fluid containing the virus left on surfaces. [ 9 ] In order to manage the spread of the virus and to attempt to minimize the serious public health consequences of COVID-19, the province utilized the powers available to it under a number of Acts .

These included the EPA and the PHA . [ 10 ] On March 17, 2020, the PHO declared the transmission of SARS-Cov-2 to be a regional event, as defined by s. 51 of the PHA .

Section 51 states: 51 In this Part: "emergency" means a localized event or regional event that meets the conditions set out in section 52 (1) or (2) [conditions to be met before this Part applies] , respectively; "localized event" means an immediate and significant risk to public health in a localized area; "regional event" means an immediate and significant risk to public health throughout a region or the province. [ 11 ] On March 18, 2020, the Minister of Public Safety and Solicitor General declared a state of emergency pursuant to the EPA , which was extended from time to time until June 30, 2021. [ 12 ] Commencing in July of 2020 and through to July of 2021, the PHO issued a number of orders pursuant to the PHA which restricted individuals from attending, organizing, posting, or permitting the use of a place for an event.

These orders were commonly referred to as Gatherings and Events Orders (“G&E Orders”). [ 13 ] The purpose of doing so was to limit the opportunity for the virus to spread as a result of close contact occurring between individuals. [ 14 ] The PHO derived her authority to issue the G&E Orders from the provisions of the PHA . The court in Beaudoin v. British Columbia, 2021 BCSC 512 (“ Beaudoin ”), at paragraphs 19 to 26 , succinctly described the relevant sections of the PHA regarding her authority to do so as follows: (

b) Dr. Henry’s Authority [19]

Section 30 of the PHA provides that a health officer can issue an order if they reasonably believe that, inter alia, “a health hazard exists”, or “a condition, a thing or an activity presents a significant risk of causing a health hazard”. [20]

Section 31 of the PHA in turn provides that a health officer (or the PHO in an emergency) “may order a person to do anything that the health officer reasonably believes is necessary for any of the following purposes . . . (

b) to prevent or stop a health hazard, or mitigate the harm or prevent further harm from a health hazard”. [21]

Section 32 of the PHA permits a health officer (or the PHO in an emergency) to make orders in respect of, inter alia, “a place”,

including that a person not enter a place. Section 39(3) permits an order to be made in respect of classes of persons. [22]

Part 5 of the PHA provides for “Emergency Powers”. These powers can be exercised in an emergency. An “emergency” is defined as “a localized event or regional event that meets the conditions set out in section 51(1) or (2), respectively”. “Regional event” is in turn defined to mean “an immediate and significant risk to public health throughout a region or the province”. [23]

Section 52 of the PHA provides conditions to be met before the

Part 5 emergency powers may be exercised. Section 52(2) states:

(2) Subject to subsection (3), a person must not exercise powers under this

Part in respect of a regional event unless the provincial health officer provides notice that the provincial health officer reasonably believes that at least 2 of the following criteria exist: (

a) the regional event could have a serious impact on public health; (

b) the regional event is unusual or unexpected; (

c) there is a significant risk of the spread of an infectious agent or a hazardous agent; (

d) there is a significant risk of travel or trade restrictions as a result of the regional event.

(3) If the provincial health officer is not immediately available to give notice under subsection (2), a person may exercise powers under this Part until the provincial health officer becomes available. [24] Section 67(2) of the PHA permits the PHO to exercise a power or perform a duty of a “health officer” during an emergency. [25] One of the powers of a health officer that the PHO can exercise in an emergency is the power to issue orders respecting health hazards under

Part 4 of the PHA . The term “health hazard” is defined in s. 1 to mean: (

a) a condition, a thing or an activity that (

i) endangers, or is likely to endanger, public health, or (ii) interferes, or is likely to interfere, with the suppression of infectious agents or hazardous agents, or (

b) a prescribed condition, thing or activity, including a prescribed condition, thing or activity that (

i) is associated with injury or illness, or (ii) fails to meet a prescribed standard in relation to health, injury or illness. [26] Over the course of the past year, Gatherings and Events orders (“G&E Orders”) were made by Dr. Henry pursuant to ss. 30, 31, 32 and 39(3) of

Part 4 of the PHA . [ 15 ] On January 8, 2021 the PHO issued a G&E Order that amongst other things prohibited a “worship or other religious service” from occurring indoors. [ 16 ] On January 24, 2021, Pastor Lucier, allegedly in violation of the January 8, 2021 G&E Order, organized a gathering at the Church. He was issued the Ticket as a result. The Positions of the Parties [ 17 ] The Crown says there are four grounds upon which I should dismiss Pastor Lucier’s Charter challenge.

They are: 1) The Charter challenge is a collateral attack against an administrative order; 2) The decision of the Supreme Court in Beaudoin , supra, is binding on me by virtue of the doctrine of stare decisis ; 3) The Charter challenge is an abuse of process due to the ongoing litigation in Beaudoin ; and 4) The claims advanced pursuant to the Charter have no reasonable prospect of success. [ 18 ] Pastor Lucier opposes the Crown’s attempt to dismiss his Charter challenge and says that none of the grounds argued by the Crown should lead to a

summary dismissal. [ 19 ] I shall consider the Crown’s grounds for dismissal in the order set out above. 1) Collateral Attack [ 20 ] The Crown argues that Pastor Lucier’s Charter challenge is an impermissible collateral attack on the January 8, 2021 G&E Order. [ 21 ] The Crown says that as the PHA provides for a reconsideration of an order issued by the PHO, Pastor Lucier should have availed himself of this provision and if dissatisfied with the result, sought a judicial review. They argue that it would be improper to allow him to attack the validity of the issuance of the order in these proceedings.

They say that he is not entitled to adopt a “breach first, challenge latter” approach. [ 22 ] Pastor Lucier argues that the collateral attack rule should not be applied in these proceedings as the PHA does not contain

provisions which allow a party, subject to an order of the PHO, to have it reviewed in a forum that ensures the party’s substantive legaland procedural rights are maintained. He says that many of the cases relied upon by the Crown to support its position are distinguishableon this basis. [23] The Supreme Court of Canada has considered the collateral attack rule in a number of cases. The most recent being R. v. Bird,2019 SCC 7 (“Bird”).

The court at para. 21 of its decision described the rule as follows: [21] A collateral attack is an attack on an order “made in proceedings other than those whose specific object is the reversal, variation ornullification of the order” (Wilson v. The Queen, (SCC), [1983] 2 S.C.R. 594, at p. 599; Canada (Attorney General) v.TeleZone Inc., 2010 SCC 62, [2010] 3 S.C.R. 585, at para. 60).

This Court has recognized a general rule against collateral attacks oncourt orders: with limited exceptions, an order issued by a court must be obeyed unless it is set aside in a proceeding taken for thatpurpose (Maybrun, at paras. 2-3; R. v. Litchfield, (SCC), [1993] 4 S.C.R. 333, at p. 349; Garland v. Consumers’ GasCo., 2004 SCC 25, [2004] 1 S.C.R. 629, at para. 71). In Maybrun, the Court held that a different analysis was warranted for collateralattacks on administrative orders. . . . [24] The rule prohibits an attempt to challenge an order made in another separate legal proceeding.

To do so is considered to be animpermissible “collateral attack” and is not permitted in a subsequent prosecution. [25] In order to consider this argument, it is necessary to review the

section of the PHA that allows for a review of an order issued bythe PHO. [26]

Part 4, Division 5 of the PHA, amongst other things, sets out the process available to a person to have an order that affects themreviewed. Specifically, s. 43 states: Reconsideration of orders 43

(1) A person affected by an order, or the variance of an order, may request the health officer who issued the order or made thevariance to reconsider the order or variance if the person (

a) has additional relevant information that was not reasonably available to the health officer when the order was issued or varied, (

b) has a proposal that was not presented to the health officer when the order was issued or varied but, if implemented, would (

i) meet the objective of the order, and (ii) be suitable as the basis of a written agreement under

section 38 [may make written agreements], or (

c) requires more time to comply with the order.

(2) A request for reconsideration must be made in the form required by the health officer.

(3) After considering a request for reconsideration, a health officer may do one or more of the following: (

a) reject the request on the basis that the information submitted in support of the request (

i) is not relevant, or (ii) was reasonably available at the time the order was issued; (

b) delay the date the order is to take effect or suspend the order, if satisfied that doing so would not be detrimental to public health; (

c) confirm, rescind or vary the order.

(4) A health officer must provide written reasons for a decision to reject the request under subsection (3) (

a) or to confirm or vary theorder under subsection (3) (c).

(5) Following a decision made under subsection (3) (

a) or (c), no further request for reconsideration may be made.

(6) An order is not suspended during the period of reconsideration unless the health officer agrees, in writing, to suspend it.

(7) For the purposes of this section, (

a) if an order is made that affects a class of persons, a request for reconsideration may be made by one person on behalf of the class, and (

b) if multiple orders are made that affect a class of persons, or address related matters or issues, a health officer may reconsider theorders separately or together.

(8) If a health officer is unable or unavailable to reconsider an order he or she made, a similarly designated health officer may act underthis

section in respect of the order as if the similarly designated health officer were reconsidering an order that he or she made. [27] It is clear from the legislation that a process exists within the PHA that allows for a review of an order issued by the PHO. [28] An affected party has the ability to request a reconsideration of the order by providing information not reasonably available to theofficer that issued the order, or putting forth a proposal that would address the objective of the order (s. 43 (1)(a)-(c)). The officer whoissued the order is required to give written reasons for rejecting the reconsideration or for confirming, rescinding, or varying the order (s.

43 (4)). [29] Pastor Lucier did not seek a review under s. 43 of the PHA of the January 8, 2021 G&E Order. [30] The collateral attack rule applies to both: orders issued by a court and orders issued by an administrative body. The January 8,2021 G&E Order is an administrative order issued by a public body. The framework to consider whether there is a collateral attack on anadministrative order is different from the framework considered when it is a court order. [31] The Supreme Court of Canada in R. v.

Consolidated Maybrun Mines Ltd., (SCC), [1998] 1 SCR 706,(“Maybrun”) held that when determining whether a court can rule on the validity of an administrative order collaterally attacked in penalproceedings, five factors should be considered. [32] The Court in Bird, supra, reaffirmed the Maybrun decision and at para. 32 stated: [32] To determine the legislator’s intention as to the appropriate forum for challenging the validity of an administrative order, Maybrunidentifies five non-exhaustive factors that may be considered by a court: (1) the wording of the statute under the authority of which theorder was issued; (2) the purpose of the legislation; (3) the existence of a right of appeal; (4) the kind of collateral attack in light of theexpertise or raison d’être of the administrative appeal tribunal; and (5) the penalty on a conviction for failing to comply with the order(Maybrun, at paras. 45-49; Klippert, at para. 13).

The factors are “not independent and absolute criteria, but important clues, amongothers, for determining the legislature’s intention” (Maybrun, at para. 46). [33] Bird, supra, involved a Charter challenge by a long-term offender who had been charged criminally for having breached hisresidency condition imposed upon him by the Parole Board of Canada (the “Parole Board”) under a long-term supervision order (the“LTSO”). The court was asked to decide whether, in defending the charge, Mr.

Bird could collaterally attack the validity of the residencycondition of his LTSO on the basis that it contravened his Charter rights. [34] Mr. Bird had the ability to seek a review of the residency condition imposed upon him by the Parole Board by way of anapplication to it. He did not pursue the review. [35] The process Mr. Bird chose to take is similar to the process Pastor Lucier pursued. [36] To determine if Pastor Lucier’s Charter challenge in these proceedings is a collateral attack, I must examine the factors identifiedin Maybrun, supra, and reaffirmed in Bird, supra, to the PHA.

Factors 1 and 2 – The wording of the statute and the purpose of the legislation [37] Factors 1 and 2 are best analyzed together. The first factor deals with the wording of the statute under which the order wasissued. The focus under this factor is whether the legislature intended for orders issued pursuant to it, to be challenged in prosecutions forbreaching them. The second factor deals with the purpose of the legislation.

The focus under this factor is whether the purposes of thePHA would be enhanced, or undermined, by permitting collateral attacks to orders issued under it. [38] The purpose of the PHA is ultimately to protect the public from health hazards. It provides for properly trained and licencedindividuals, including physicians, to take steps to eliminate or ameliorate health hazards. It authorizes these individuals to do so bygranting them the authority to issue orders to prevent or address a particular health hazard. [39] The PHA is legislation drafted with a view to managing and responding to health hazards.

It is drafted so that a swift response bythe responsible authorities can occur to address a particular health hazard. It requires physicians and other health professionals to reportindividuals or places that have or contain infectious agents (s.10). It requires physicians and other health professionals to report healthhazards (s.11). It grants the PHO and other health officers the power to inspect vehicles and premises to determine if a person or place isinfected (ss. 23-25). It grants the PHO or other health officers the authority to regulate activities that may cause health hazards (ss.18-22).

It grants the power to these officials to issue orders directed at preventing and/or controlling a health hazard (ss. 30-33). Theseinclude the ability to direct a person to determine whether a health hazard exists and to prevent, stop, or mitigate the harm from a healthhazard.

Part 5 of the PHA grants emergency powers to health officers, the PHO and the Minister of Health to address an emerging,immediate and significant health hazard. [40]

Part 8 of the PHA contains provisions for consequences arising out of a person’s failure to comply with orders issued under thePHA or failing to comply with other measures of the Act. [41] It allows for a reconsideration of decisions and orders made by the PHO and other health officers. Under s. 21, a person subjectto a licence or permit may seek a reconsideration of a refusal to be issued a licence or a suspension of the same. Under s. 43, a person canseek a reconsideration of an order that affects them. [42] The PHA is legislation that is comprehensive and thorough.

It contemplates a regime within which all issues arising from ahealth hazard, commencing with identifying it, to controlling and minimizing the consequences of it, are addressed. [43] I agree with the Crown that there is nothing within the PHA that suggests a legislative intention to permit a challenge to ordersmade pursuant to it to be challenged in subsequent prosecutions. [44] I also agree with the Crown that similar to the environmental legislation that was at issue in Maybrun and R. v.

Al Klippert Ltd., (SCC), [1998] 1 SCR 737, allowing challenges to the validity of public health orders “at the stage of penal proceedingswould encourage conduct contrary to the Act’s objectives and would tend to undermine its effectiveness” (Maybrun para. 60). [45] I find that it would undermine the purpose of the PHA if individuals were allowed to ignore orders issued by health officers putin place to address an imminent health risk to the public and then be allowed to challenge them in subsequent separate proceedings. The

legislature did not intend for individuals to “breach now and challenge later” when drafting the legislation. In the circumstances, I find that factors 1 and 2 suggest that not only did the legislature not intend that the January 8, 2021 G&E Order could be collaterally attacked, but the purpose of the PHA suggests that a collateral attack should not be allowed. Factor 3 – the existence of a right of appeal [ 46 ] The third factor addresses the existence of a right of appeal.

It is this factor that Pastor Lucier forcefully argues is absent under the PHA . [ 47 ] The Crown says that Pastor Lucier had two paths open to him to have the January 8, 2021 G&E Order reviewed. Firstly, it argues that the PHA , pursuant to s. 43, has a process within which the January 8, 2021 G&E Order could have been reconsidered. Secondly, it argues he could have sought a judicial review of it pursuant to the Judicial Review Procedure Act , [ RSBC 1996],

Chapter 241 (“ JRPA ”). [ 48 ] As set out above, s. 43 of the PHA allows a person affected by an order to seek a reconsideration of it. The legislation provides a simple way to do so.

The affected party merely has to request that it be reconsidered on the basis that it has “additional relevant information that was not reasonably available to the health officer” and/or it “has a proposal that was not presented to the health officer when the order was issued”. [ 49 ] The legislation does not limit the type or volume of information that can be provided, nor does it limit or define the parameters of any proposal an applicant seeking a reconsideration can propose.

Presumably, information that suggests an applicant’s Charter rights may be impacted by a particular order can be considered in the course of the reconsideration. I find support for this by the fact that the PHO, at the time of issuing the G&E Orders, took into consideration the impact they may have on religious organizations and their ability to practice their faith.

This was specifically referenced in Beaudoin , supra, at paras. 242 to 243 , where Justice Hinkson stated: [242] While she made no specific reference to Charter rights and values prior to her G&E Orders of February 5 and 10, 2021, I am unable to accept that those rights and values were not considered by Dr. Henry from the outset of her G&E Orders in November 2020. [243] I find that Dr.

Henry carefully considered the significant impacts of the impugned G&E Orders on freedom of religion, consulting with the inter-faith community to discuss and understand the impact of restrictions on gatherings and events on their congregations and religious practices. [ 50 ] The legislation allows an affected party to request a review of the order swiftly. An applicant is not burdened with a complicated procedure to seek redress. This is consistent with the PHA itself in that it is structured to be able to respond to an emerging health crisis promptly.

In putting in place an order or orders to do so, any party that may be adversely impacted has a simple means of seeking possible relief from them. [ 51 ] Pastor Lucier says that the reconsideration process under the PHA is flawed and insufficient for him to have been able to address the impact the January 8, 2021 G&E Order had on his Charter rights . He advances this argument on the grounds that the PHA has no structured right of appeal of any orders imposed pursuant to it.

He says that the legislation lacks sufficient safeguards to ensure that he has an effective means to pursue an appeal of an order. [ 52 ] He notes, and I agree, that the legislation does not mandate the PHO to consider a request submitted to her under s. 43 . Nowhere within it does it require the PHO to respond to a request, nor does it provide any timeline in which she must do so. Section 43(3) states that after receiving a request for reconsideration, a health officer “may” – not “shall” – do one or more of the following.

The review is permissive, not mandatory. [ 53 ] Pastor Lucier says that the absence of a structured review process within the PHA , which at a minimum would require that a reconsideration be undertaken within a set time frame once a request is made, should result in a finding that the s. 43 mechanism is an ineffective means to challenge the January 8, 2021 G&E Order. He says the result must be that his Charter challenge in these proceedings must be allowed.

To support his position he references Justice Moldaver at para. 23 of Bird , supra, where he states: [23] The doctrine of collateral attack, however, recognizes that people must have an effective means to challenge court orders, particularly when those orders are alleged to violate constitutional rights. In Domm , Doherty J.A. clarified that “where constitutional rights are implicated, the court must be particularly concerned about the availability of an effective remedy apart from collateral attack when considering whether” to allow a collateral attack (p. 552).

Where a collateral attack is the only way to effectively challenge a court order, a collateral attack will be permitted (see Domm , at pp. 553-54). [ 54 ] He also points to the fact that in May of 2021, the PHO had indicated that it was no longer prepared to consider reconsideration requests. He says this is an example of the “ineffectiveness” of the process pursuant to s. 43 of the PHA . [ 55 ] I am not persuaded that the decision by the PHO to stop reviewing reconsideration requests supports his argument.

I say so because that decision was made after a number of religious organizations had taken steps to challenge the G&E Orders by way of judicial review in the Beaudoin proceedings and judgment had been rendered.

Additionally, I note that it was made after the January 8, 2021 G&E Order was issued and after the alleged breach of it by Pastor Lucier on January 24, 2021. [ 56 ] While I do agree with Pastor Lucier that the reconsideration process is not as robust as processes provided for in other similar legislation, that does not mean that the conclusion I must draw is that he does not have a “right of appeal” under the PHA .

That is because the consideration of this factor under the Maybrun analysis is not limited to only considering an actual right of appeal under the legislation at issue, but also allows for a consideration of other effective mechanisms or forums for challenging the order. [ 57 ] Additionally, when considering the Maybrun factors, the focus is on what was the intention of the legislature when drafting the legislation. Under this factor then I must consider what the legislature’s intention was, as to what the appropriate forum is for attacking the validity of any orders issued under the PHA .

[ 58 ] This is how the court in Bird , supra, at paras. 44 to 46 , described the analysis: [44] I turn now to the third Maybrun factor, “the existence of a right of appeal”. In my view, this factor permits a court to consider not only the existence of a right of appeal to an administrative appeal tribunal, but also the existence of other effective mechanisms or forums for challenging the order at issue. [45] The Court of Appeal noted and the parties conceded that there is no right of appeal under the CCRA from a decision of the Parole Board concerning the conditions of an LTSO (C.A. reasons, at para. 52).

I approach this matter on that basis. [46] Mr. Bird points out that in Maybrun and Klippert , there was a right of appeal to an administrative appeal tribunal. Given that there is no right of appeal to the Appeal Division of the Parole Board, Mr. Bird argues that the third Maybrun factor has “little, if any, application in this case” (A.F., at para. 34). However, it must be remembered that the focus under the Maybrun framework is on “the legislature’s intention as to the appropriate forum for raising the validity of an administrative order” (para. 52).

As indicated, Maybrun was careful to state that the listed factors were not “absolute criteria, but important clues, among others, for determining the legislature’s intention” (para. 46). Likewise, in Klippert , the Court emphasized that “[t]he determination of legislative intent is never a mechanical act, and an inflexible formula cannot be applied in carrying it out” (para. 14). In certain administrative contexts, the legislature may intend for people to challenge the validity of an administrative order by means other than an appeal to an administrative tribunal.

Therefore, in my view, a court can consider other review mechanisms or forums under this factor. [ 59 ] The reconsideration process under s. 43 is not a true “right of appeal” to an independent body with oversight of the PHO; however, it is nonetheless a mechanism to challenge an Order issued by the PHO. [ 60 ] The legislature anticipated that there would be situations in which a party affected by an order issued under the PHA would want it reviewed. It recognized that a review should occur in the most expeditious and least onerous manner.

It would defeat the PHA ’s purpose of immediately addressing imminent health risks, by allowing individuals to ignore the PHO’s orders and seek redress months later in separate proceedings.

The expectation of the legislature by providing a basis for a review to occur pursuant to s. 43 , I find, expressed a clear intention that it did not intend on permitting attacks to orders issued by the PHO in a subsequent prosecution. [ 61 ] In addition to the reconsideration process pursuant to s. 43 of the PHA , Pastor Lucier also could have pursued a judicial review of the January 8, 2021 G&E Order, or the results of a reconsideration of it, if he had sought one.

This was the path followed by the petitioners in Beaudoin , supra. [ 62 ] The JPRA allows a party to challenge administrative orders or legislation and raise Charter issues in the process. A judicial review is initiated in the BCSC, a superior court of jurisdiction, which has the power to strike down and make declaratory judgments on legislation, unlike the court herein which possesses no such jurisdiction or power. Judicial reviews are a

summary process. Once initiated, they can be concluded within a short period. They are arguably far more expeditious than a trial in a subsequent prosecution for a breach of an administrative order. [ 63 ] In R. v. Hawkins Bros. Fisheries Ltd. , 2005 NBQB 472 , the New Brunswick Court of Appeal in applying the Maybrun factors found the judicial review procedure should have been pursued by the accused rather than ignoring an administrative order and attacking its validity in a subsequent prosecution. At para. 27 it stated: [27] . . .

I therefore find that in enacting these narrow and specific limitations on the right to challenge a ministerial order, it was the intention of the legislature that any such attack be undertaken in a timely fashion. Such a procedure is provided for in the Rules of Court for judicial review in the Court of Queen’s Bench.

By contrast, the timing of an attack on an order in a penal proceeding is uncertain at best and, in my view, more likely than not to be prolonged given the safeguards and attendant procedural delays which commonly occur in penal proceedings. [ 64 ] I agree with the Crown that the ability to seek a reconsideration under the PHA and/or a judicial review of an order of the PHO suggests that the legislature’s intention was not to permit collateral attacks on the orders of public health officials.

In the circumstances, a consideration of this factor weighs against permitting a collateral attack on the January 8, 2021 G&E Order.

Factor 4 – the expertise and raison d’etre [ 65 ] This factor requires a consideration of the expertise, or raison d’etre, of other mechanisms or forums for challenging the order. [ 66 ] In Bird , supra , at para. 76 , the court described this factor as follows: [76] In Maybrun , the Court explained that the fourth factor examines whether the nature of the collateral attack involves considerations that fall within the expertise of the tribunal or which the tribunal was established by the legislature to address.

The Court noted that where the nature of a collateral attack “requires the consideration of factors that fall within the specific expertise of an administrative appeal tribunal, this is a strong indication that the legislature wanted that tribunal to decide the question rather than a court of penal jurisdiction” (para. 50). [ 67 ] The court in Bird , supra, however, did not limit a consideration of this factor to just administrative tribunals, but also recognized that a consideration of other mechanisms or forums for challenging the order may be examined. [ 68 ] The Crown says that in the present situation, it is the PHO who is best qualified and has the expertise to address health hazards.

The say that the legislation is designed to allow those with the requisite knowledge and expertise to make informed decisions regarding the health of the public. They point to the fact that the PHA at s. 64 defines the PHO as the “senior public health official” for the province and that the PHO pursuant to s. 65(1) must be a medical practitioner. [ 69 ] As I discussed above, the PHA is drafted such that the PHO and others have the tools available to respond to emerging health hazards promptly. The expectation being that those with the skills and knowledge to do so will successfully manage health risks to the

public. [ 70 ] The PHA provides a mechanism for a reconsideration of the PHO’s orders to occur. The intention of the legislature was that only those individuals with the appropriate training and qualifications should be tasked with ascertaining the merits of any reconsideration. To have another body do so may well undermine the primary objective of the legislation, being the protection of the public from health hazards. This is consistent with the court’s ruling in Bird , supra, where at para. 77 it stated: [77] . . .

Where the nature of the collateral attack involves considerations that fall squarely within the expertise or raison d’etre of a particularly administrative body or other forum, this may be taken as an indication that Parliament wanted that body to decide the question as opposed to permitting a collateral attack. [ 71 ] I do not find the fact that Pastor Lucier seeks to attack the January 8, 2021 G&E Order from a Charter perspective changes the conclusion above. I have come to this determination as the PHO has demonstrated when issuing the G&E Orders that she considered Charter implications.

As was stated in Bird , supra: [79] The fact that Mr. Bird’s challenge to the residency condition raises constitutional issues does not mean that it raises considerations foreign to the Parole Board’s experience and expertise. As this Court observed in Conway , “expert tribunals should play a primary role in the determination of Charter issues falling within their specialized jurisdiction” (para. 21). [ 72 ] I find that a consideration of this factor weighs against a collateral attack.

Factor 5 – the penalty on a conviction for failing to comply with the order [ 73 ] This factor is focused on the consequences for breaching the January 8, 2021 G&E Order and whether the severity of the consequences should allow a collateral attack to occur. [ 74 ] In the event Pastor Lucier is convicted of the offence that is the subject of the Ticket, the jeopardy he faces is a fine of $2,300. He has the ability pursuant to the provisions of the Offence Act [ RSBC 1996],

Chapter 388 , to seek a lessor fine. He does not face the prospect of jail. [ 75 ] In Maybrun , supra, where the jeopardy faced by the defendant company was a fine, a collateral attack was not allowed.

In Bird , supra, notwithstanding a potential period of imprisonment of 10 years, the court still determined that a collateral attack was not permissible. [ 76 ] While I am mindful of the fact that a fine of $2,300 is not an insignificant sum, I find that in the present circumstances, given the only penalty Pastor Lucier faces is a fine, a consideration of this factor suggests that it was the legislature’s intention not to allow a collateral attack.

Weighing of the Maybrun factors [ 77 ] 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 PHO under the PHA , the inescapable conclusion is that allowing Pastor Lucier to proceed with a Charter challenge would be an impermissible collateral attack on the January 8, 2021 G&E Order. [ 78 ] Pastor Lucier had options available to him to seek redress from the January 8, 2021 G&E Order.

He could have sought a reconsideration under the PHA ; he could have pursued a Judicial Review pursuant to the JPRA; or he could have pursued both. However, instead of doing so, he chose to ignore the January 8, 2021 G&E Order and seeks to challenge it in this prosecution. He, like the appellant in Bird , supra, chose to “breach first, challenge later”.

The result, similar to the result in Bird , supra, is that he shall not be permitted to do so. [ 79 ] 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 January 8, 2021 G&E Order. The other grounds for dismissal [ 80 ] In light of my ruling on the collateral-attack issue, it is not necessary that I consider the three other grounds for dismissal raised by the Crown.

Conclusion [ 81 ] I summarily dismiss Pastor Lucier’s Charter challenge, as to allow it to proceed would be an impermissible collateral attack on the January 8, 2021 G&E Order. _____________________________ The Honourable Judge C. Burnett Provincial Court of British Columbia