Ethier v. THE QUEEN, 2003 FC 935

Date: 20030730

Docket: T-793-02

Citation: 2003 FC 935

Toronto, Ontario, July 30^th, 2003

Present:           THE HONOURABLE MR. JUSTICE O'REILLY                          

BETWEEN:

                                       REVEREND BROTHER MICHEL D. ETHIER

                                                        BROTHER JAMES R. HOAD

                                                                                                                                                        Plaintiffs

                                                                              - and -

                                                        HER MAJESTY THE QUEEN

                                                                                                                                                      Defendant

                                               REASONS FOR ORDER AND ORDER

[1]                 Reverend Brother Ethier and Brother Hoad have asked the Court to set aside a stay of their lawsuit against the Crown. In it, they seek a declaration that marijuana laws are unconstitutional and cannot be enforced against them as members of Tarzan's Mission of the Sacred Herb, a branch of the Assembly of the Church of the Universe. Prothonotary Lafrenière imposed the stay on July 22, 2002 pending the outcome of a similar action (File no. T-1805-98), of which the applicants were once a part. The other action has continued to unfold before this Court.

[2]                 The applicants misunderstood the effect of the stay. They thought that it would prevent the Crown from enforcing marijuana laws against them until the Court decides the legal issues. However, both applicants have since been charged with offences and have upcoming court appearances.

[3]                 The applicants ask that the stay be lifted so that they can obtain an immediate injunction against the Crown. They believe this would assist them in defending the charges against them and would prevent further charges being laid. They suggest that new developments in the case law justify allowing their action to proceed. While I understand their situation, I cannot grant the relief they are asking for.

[4]                 The Court can lift a stay only in exceptional or uncontroversial circumstances, or where the facts have changed significantly since the stay was imposed: Del Zotto v. Minister of National Revenue, [1996] 2 C.T.C. 22 (Fed. C.A.). Prothonotary Lafrenière granted the original stay so that the Crown would not have to defend two actions simultaneously on identical grounds. In that respect, nothing has changed. The parallel action is still before the Court. The applicants stressed the significance of recent case law that casts doubt on whether authorities can enforce existing marijuana laws (for example, R. v. J.P., [2003] O.J. No. 1949 (S.C.J.)). These cases show that the law is currently in a state of flux, but they do not affect the basis on which the Prothonotary imposed the stay in this case.

[5]                 The applicants also seek an injunction against the Crown, but they have not attempted to satisfy the well-recognized test for that remedy set out in RJR - MacDonald Inc. v. Canada (Attorney General), [1994]1 S.C.R. 311. They state simply that it is "indisputable" that a breach of their constitutional rights occurs when the Crown enforces an unconstitutional law. Therefore, they say, an injunction is justified. However, as the respondent points out, injunctions are simply not available against the Crown (Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, s. 22(1); Mundle v. Canada, [1994] F.C.J. No. 1342).

[6]                 Accordingly, I must dismiss this motion. Nothing, of course, prevents the applicants from raising any of the above arguments in response to the charges against them.

[7]                 Counsel for the respondent requested limited costs of this motion. I cannot fault the applicants for seeking some form of remedy in this Court in light of recent developments in the law and in their personal circumstances. In my view, costs of this motion should be awarded to the successful party in the main action.

                                                                            ORDER

THIS COURT ORDERS that:

1. The motion is dismissed.

2. Costs of the motion should be awarded to the successful party in the main action.

"James W. O'Reilly"          

                                                                                                                                                               Judge                      

FEDERAL COURT

                              NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                              T-793-02

STYLE OF CAUSE:              REVEREND BROTHER MICHEL D. ETHIER

BROTHER JAMES R. HOAD                                                   

Plaintiffs

and

HER MAJESTY THE QUEEN

Defendant

PLACE OF HEARING:                      TORONTO, ONTARIO

DATE OF HEARING:                        JULY 28, 2003

REASONS FOR ORDER

AND ORDER BY :                             THE HONOURABLE MR. JUSTICE O'REILLY .

DATED:                                                JULY 30, 2003

APPEARANCES:                                Reverend Brother Michel D. Ethier

Brother James R. Hoad

For the Plaintiffs

Ms. Andrea Horton

For the Defendant

SOLICITORS OF RECORD:           Tarzan's Mission of the Sacred Herb

Sturgeon Falls, Ontario

For the Plaintiffs

Morris Rosenberg

Deputy Attorney General of Canada

For the Defendant

FEDERAL COURT

                                    Date: 20030730

                                              Docket: T-793-02

BETWEEN:

REVEREND BROTHER MICHEL D. ETHIER

BROTHER JAMES R. HOAD

                                                                          Plaintiffs

and

HER MAJESTY THE QUEEN

                                                                        Defendant

REASONS FOR ORDER

AND ORDER