The lawyer of a Kelowna pastor who defied COVID-19 gathering restrictions appeared in court Tuesday to appeal his client's guilty verdict.
Pastor Art Lucier was handed a $2,300 violation ticket on Jan. 24, 2021 for hosting the service at the Kelowna Harvest Church, after Provincial Health Officer Dr. Bonnie Henry had issued a public health order on Jan. 8 that restricted in-person services due to the spread of COVID-19 at the time.
The ticket was one of many he received.
On Sept. 28, 2022 a legal challenge in provincial court failed, after a judge ruled that health orders cannot be fought with a “breach first, challenge later” approach. The judge ruled that Lucier should have filed for a judicial review of the anti-gathering restriction, rather than violate it.
On Nov. 14, 2022 Lucier was formally found guilty and penalized $2,300.
On Tuesday in BC Supreme Court in Kelowna, Lucier's lawyer Marty Moore with the Justice Centre for Constitutional Freedoms, argued that Lucier is being prosecuted on the basis of an infringement of his rights.
"If an infringement of constitutional rights as the Crown admits took place here... can be imposed by governments through an unelected delegate of power through the Ministry of Health... and then prevent somebody in the criminal courts from raising a constitutional defence... the principles here go far beyond the interests of Lucier," Moore argued.
"I have got your point. You are saying this is a grave injustice, but it is pretty clear the Court of Appeal is not with you," the judge said, likely referring to prior legal challenges targeting health orders that failed.
The two day appeal hearing was scheduled to wrap Tuesday. A decision will likely not be available for several days afterwards, at least
In a news release Monday, Moore said "if the decision is allowed to stand, governments could void Canadians’ Charter rights simply by issuing administrative decisions and providing a dysfunctional process of administrative review.”