[1] These reasons follow the hearing at Hamilton, Ontario on the 23rd of June, 2003, of a motion on behalf of the Defendant for summary judgment dismissing this action with costs. The Defendant's motion was filed the 16th of December, 2002. The grounds for the motion are stated to be that the Plaintiffs have not raised a genuine issue for trial by claiming that their use of marijuana constitutes a religious practice that is protected by paragraph 2(a) of the Canadian Charter of Rights and Freedoms[1] (the "Charter") and constitutes a breach of the Controlled Drugs and Substances Act[2].
BACKGROUND
[2] In their Amended Statement of Claim, the Plaintiffs allege that they are Canadian citizens and Ministers of The Assembly of the Church of the Universe who use "The Tree of Life", Cannabis, Cannabis Sativa, Marijuana, Hemp, Chanvre ("marijuana") "... in their daily lives on the advice of the Lord God's word revealed in The Holy Bible, Book of Revelation, Chapter 22, verse 2", which is quoted to read as follows:
In the midst of the street and on either side of the river was there the tree of life, which bare twelve manner of fruits, and yielded her fruit every month: and the leaves of the tree were for the healing of the nations.
[3] The Plaintiffs further allege that:
There are no reasonable and probable grounds and/or just cause upon which the Controlled Drugs and Substances Act can be used to justify an offence and/or punishment in relation to God's Tree of Life, Cannabis, Cannabis Sativa, Marijuana, Hemp, Chanvre and/or any of it's derivatives.
For the foregoing allegation, the Plaintiffs, at some length, purport to cite a judgment of the Ontario Court of Justice (General Division)(Southwest Region).
[4] The Plaintiffs continue by alleging the following:
The Plaintiffs have knowledge as disabled persons that marijuana is medicinally beneficial to their health, well being and enjoyment of life and the denial and deprivation of this medicinal herb is cruel and unusual treatment and punishment to all of us.
Every day our freedom of association and security is being violated because at any time we can expect the government law enforcement agencies to smash down our doors and point guns at us, as they have in the past, for celebrating religious worship.
Our freedom of Association is being violated. We are afraid to gather and meet because of fear of government attacks.
We fear for our freedom and our lives because of our religious practices and beliefs.
All other avenues have been closed to us because the government refuses to acknowledge that a mistake may have been made in regard to this herb. We have been in the Provincial Criminal Courts defending ourselves against this non-criminal, civil health law many times over the past 30 years. In those courts it is to their benefit to maintain the status quo and have denied jurisdiction to change the present law and therefor all avenues except this one appear to be closed.
Our religious freedoms are being threatened on a daily basis by the current legislation prohibiting our Sacrament Marijuana and the war currently being waged against us because of it. The fact that we have been dragged through Provincial Criminal Courts, found guilty, fined and imprisoned over our religious use and practices of our said Sacrament directly affects us. This legislation constitutes a serious issue to be tried and constitutional challenges to be heard and reliefs to be decided and given in a proceeding before a Court of Competent Jurisdiction.
The exceptions we are asking to be entered in the legislation are the exceptions and exemptions of religious freedom and use and use for medicinal purposes. It is not our intention to destroy the legislation. [emphasis added]
[5] In the result, the Plaintiffs seek the following reliefs:
a. a Binding Declaration of right ... declaring the Controlled Drugs and Substances Act unconstitutional and ultra vires Parliament as it pertains to the Tree of Life Cannabis, Cannabis Sativa, Marijuana, Hemp, Chanvre and/or any of it's derivatives as it violates, infringes and denies the principles of fundamental justice; and the provisions of Sections 1., 2(a)(b)(c)(d), 7., 8., 9., 11.(d), 12., 15.(1), 24.(1), 26., 27., 31., 52.(1), 91, 91.27 and 92.9 and 13 of the Canadian Charter of Rights and Freedoms, 1867 to 1998;
b. an order ... quashing the provisions of the Controlled Drug [sic] and Substance [sic] Act pertaining to the use, cultivation and distribution of The Tree of Live, Cannabis, Cannabis Sativa, Marijuana, Hemp, Chanvre, in all its spiritual, medicinal, healing and other uses;
c. a Writ of Prohibition ... prohibiting the Federal Government and its agents from enforcing the aforesaid legislation against Members and Clergy of The Assembly of the Church of the Universe until such time as this matter can be heard and fully and finally determined; and such further and other reliefs as advised and admitted.
No interlocutory "Writ of Prohibition" has been issued in the action to this point in time. While the foregoing quotations imply infringement of a range of provisions of the Charter, I interpret them as focussing particularly on the fundamental freedom of "religion" that is reflected in paragraph 2(a) of the Charter.
[6] This action has not proceeded speedily and without difficulty. It has given rise to numerous interlocutory motions including two (2) motions on behalf of the Defendant to strike the action. The first motion to strike was successful and the Plaintiffs' Statement of Claim was struck with leave to amend, giving rise to the Amended Statement of Claim earlier referred to and quoted in part. The second motion to strike, relating to the Amended Statement of Claim, was heard by Justice Sharlow, then of the Trial Division of the Federal Court of Canada. That motion was dismissed. Justice Sharlow's reasons[3], dated the 13th of December, 1999, are of direct relevance for the purposes of this motion for summary judgment. For ease of reference, paragraphs [20] to [29] of those reasons are reproduced in full as an Annex to these reasons.
[7] Of particular relevance are paragraphs [27] and [28] from Justice Sharlow's reasons and they are again reproduced here:
On the other hand, there are at least two cases in which the courts have been persuaded to allow for a "constitutional exemption" from marijuana laws on medical grounds: R. v. Parker(1997), 12 C.R. (5th) 251) (Ont. Prov. Ct.); Wakeford v. Canada ... (1999), 173 D.L.R. (4th) 726 (Gen. Div). Whether the reasoning in those cases can be extended to protect the right of religious freedom seems to me to be an open question.
The Crown is concerned, and properly so, about the lack of a factual matrix for the determination of the constitutional questions raised by the plaintiffs, such as would exist if this constitutional challenge were raised in the context of a prosecution under the challenged legislation. However, there are factual allegations in the amended statement of claim relating specifically to the plaintiffs and their religion, and relating to the properties of marijuana and the other named substances. Evidence as to the truth of those allegations will have to be adduced at a trial or possibly through examinations for discovery. If the plaintiffs' evidence is insufficient to prove the alleged facts, their claim may fail. But that is no reason to strike the claim at this stage. [emphasis added]
THE ISSUES
1) Preliminary matters
[8] The Plaintiffs sought to file two supplementary affidavits purporting to be commissioned the 4th of May, 2003, well beyond the time provided by order of this Court for filing of the Plaintiffs' affidavit material on this motion. By direction dated the 21st of May, 2003, Prothonotary Lafrenière directed that the supplementary affidavits "... shall be rejected as submitted for filing beyond the time provided in the Order dated December 27, 2002." The Plaintiffs sought before me to appeal Prothonotary Lafrenière's direction. No right of appeal lies from a direction of the Court[4]. As a preliminary matter, at the opening of the hearing of the motion for summary judgment, I rejected the Plaintiffs' "appeal".
[9] Counsel for the Defendant drew to my attention the fact that affidavits of the Plaintiffs that were before me purported to be commissioned, in the case of the affidavit of Brother Tucker, by Brother Baldasaro, and in the case of the affidavit of Brother Baldasaro, by Brother Tucker.
[10] In Huang v. Canada (Minister of Citizenship and Immigration)[5], Justice Evans wrote at paragraph [6]:
It is obviously desirable that affidavits are submitted in the form prescribed by the Rules and if they are not, they are liable not to be admitted as evidence in proceedings in this Court.
[11] The Plaintiffs are well aware of this issue but urged before me that they should be afforded special treatment because they are "...minister[s] of the church...". I advised the Plaintiffs that their role as ministers of a church afforded them no special status such as that of commissioners for oaths. In the result, I advised the Plaintiffs that I would give no weight to their affidavits[6].
2) On the Motion for Summary Judgment
[12] Put at their simplest, I am satisfied that the issues on this motion for summary judgment are: first, the appropriate test for summary judgment; secondly, whether that test has been met; and finally, whether either side should be awarded costs of the motion.
a) Summary Judgment Principles
[13] The principles governing the determination of a motion for summary judgment under the rules of this Court were essentially not in dispute before me. They were, I am satisfied, admirably summarized by my colleague Justice Russell in Apotex Inc. v. Canada[7], where he wrote at paragraphs 9 and 10 of his reasons:
There is no material disagreement between the parties as to the general principles applicable in a motion for summary judgment under rules 213 - 219 of the Federal Court Rules, 1998. As enunciated in cases such as Granville Shipping Co. v. Pegasus Lines Ltd. S.A. et al. (1996), 111 F.T.R. 189, I am required to find that the claims in question present no genuine issue for trial or that the issue is so doubtful that it deserves no further consideration. Also, each case must be interpreted in its own context and if the necessary facts cannot be found, or if there are serious issues of credibility, the matter should go to trial.
The burden lies with the moving party to establish that there is no genuine issue to be tried, but both parties must "put their best foot forward" to enable the motions judge to decide whether or not there is a genuine issue for trial, and the judge is required to take "a hard look" at the merits and, if possible, make findings of fact and law if the materials allow this. F. Von Langsdorff Licensing Limited v. S. F. Concrete Technology Inc. (1999), 165 F.T.R. 74.
I adopt the foregoing paragraphs as my own.
b) Has the Test for Summary Judgment been met?
i) Introduction
[14] As noted earlier in these reasons, the Plaintiffs seek relief on the basis of "...Sections 1., 2(a)(b)(c)(d), 7., 8., 9.,11.(d), 12., 15.(1), 24.(1), 26., 27., 31., 52.(1), 91, 91.27 and 92.9 and 13 of the Canadian Charter of Rights and Freedoms, 1867 to 1998". Certain of the provisions cited are not provisions of the Canadian Charter of Rights and Freedoms at all but are rather provisions of the Constitution Acts 1867 to 1982. That being said, the evidence before the Court provides no basis whatsoever that I can discern for the claims for relief other than on the basis of section 2 of the Charter. That section reads as follows:
2. Everyone has the following fundamental freedoms:
a) freedom of conscience and religion;
b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
c) freedom of peaceful assembly; and
d) freedom of association
2. Chacun a les libertés fondamentales suivantes :
a) liberté de conscience et de religion;
b) liberté de pensée, de croyance, d'opinion et d'expression,
y compris la liberté de la presse et des autres moyens de communication;
c) liberté de réunion pacifique;
d) liberté d'association.
[15] As earlier noted, the Plaintiffs' amended statement of claim, and indeed, the evidence properly before the Court, discloses that the principal basis of the claim is freedom of religion, although, impliedly at least, other of the fundamental freedoms referred to in section 2 might well be called in aid of freedom of religion.
[16] I find no significant evidentiary basis on the record properly before me for a challenge to the Controlled Drugs and Substances Act in its entirety but only in relation to the provisions of that Act making possession, trafficking, production and related acts, and perhaps importation and exportation and related acts, of marijuana or "the tree of life", offences. The amended statement of claim refers to "...medicinal, healing and other uses", as well as spiritual issues. Once again I find there to be no significant evidentiary basis properly before the Court in relation to "... medicinal, healing and other uses" and in any event, Courts have otherwise spoken in relation to certain of those uses in relation to certain controlled substances. In the result, these reasons will focus only on whether or not the material properly before the Court presents a genuine issue for trial, on the basis of freedom of religion, in relation to the possession, production, trafficking, including importation and exportation, of marijuana, as earlier defined and whether or not that issue is so doubtful that it deserves no further consideration.
ii) The Evidence of the Plaintiffs that is before the Court
[17] As indicated earlier in these reasons, I give no weight to the affidavits of the Plaintiffs. That being said, counsel for the Defendant put before the Court transcripts of examination for discovery of the Plaintiffs. It is evident from the transcripts that the Plaintiffs were not easily examined. Some of the following extracts from the transcripts demonstrate the difficulties. Other of the extracts are testimony of the Plaintiffs relating to the use, cultivation and dissemination of marijuana, particularly as its use constitutes or relates to a sacrament of The Assembly of the Church of the Universe.
[18] The first attempt to examine the Plaintiffs for discovery took place on the 3rd of May, 2001. The Plaintiffs refused to be examined separately and indicated that each was "counsel" for the other. Counsel for the Defendant indicated:
I want to ask you questions about your religious beliefs, and about your church, and not to show that they're not authentic, or sorry, not to show that they're false because
...
- - - they're not honestly held -
Brother Tucker: Oh, give me a break. Will you quit it. I've been in it for 30 years. Do you think I've spent 30 years of my life in something I don't believe in. There is something wrong with you people in Ottawa, there really is, there's something wrong with your heads. Give yourself a damn good shake. I've been practising my religious beliefs for 30 years with your knowledge, and now you say, "Look, I don't know whether they're honestly held". I don't give a damn whether you believe they're honesty held or not, that's not your business.[8]
Brother Tucker had earlier commented to much the same effect:
If the government's intentions in their questions is to deny the authenticity of our church or our religious beliefs, you can forget it. We have no intention of even thinking about answering a question like that for the government, because we've - - every time we've exposed ourselves to the government through our religious beliefs, we've been attacked by their police force. We have no intention of putting ourselves in your hands any more. I've told you that. We will not march into an oven easily...[9].
[19] That being said, Brother Tucker did indicate:
My religion is about worshipping God, and my communication thereto, and the use of the cannabis marijuana plant, the tree of life for my health and for my spiritual well-being.[10]
[20] Brother Tucker re-attended for examination with Brother Baldasaro appearing with him. The following are extracts from the later examination of Brother Tucker:
Q. Okay, Now, is it a requirement of your church that a person smoke marijuana?
A. No, They can eat it. They can wear it. They can write on it. They can surround themselves in it in any way they want.
Q. But they don't have to actually use it?
A. They don't have to smoke it, no.[11]
...
Q. When did you actually start experiencing this spiritual connection through the use of marijuana?
A. Well, probably when I was born.
Q. Through the use of marijuana?
A. Well, probably when I got involved with marijuana and found that my connection was stronger.
Q. Roughly in time frame, do you recall when it was?
A. Probably ... that would probably be in 1968 or 1966, probably.
Q. Okay, before the foundation of your church?
A. Pardon?
Q. Before the foundation of your church?
A. Oh, goodness, yes.
Q. That was in 1969?
A. Yes. I smoked it, but I never . . . I never . . . really, it never became a big thing until the church formed and it helped to make me a better person and helped me to make connections with my fellow human beings and with God. And then it became the sacrament in my life from a personal dedication. I realized that marijuana . . . by smoking marijuana, my belief, my connection with God, my connection with my fellow human beings was more human.[12]
...
Q. Do you have other sacraments besides the tree of life, the marijuana?
A. I don't.
Q. Are there any in your church?
A. I don't.
Q. In your church, are there any?
A. I can't answer for anyone else, Brother. I can answer that I don't have any, and as far as I know, the . . . I don't know of any others.[13]
[21] Brother Baldasaro was subsequently examined with Brother Tucker appearing. The following are extracts from Brother Baldasaro's examination:
Q. You said that you discovered marijuana as a sacrament on your own, and how did you discover that in the late 1960's?
A. When I started using it, I guess it would have been, you know, 1969/70 is when I started ingesting marijuana.
Q. So that was the first time.
A. Yes, and I always believed in God and I found it brought me closer to God in my prayers and that. It sort of opened me up more to God, it made me feel more a part of God's creation, it made me more peaceful and then I started, I was reading the Bible with it. I mean, all my life I've studied religion and God, with the Roman Catholic Church and then with the Church of England for a little while, and, like I say, I've been talking to God. I was taught by my mother to say my prayers and God has directed me. My beliefs are just my - I can't even prove to you God exists other than I believe God does. I think that's why believing is so important in religion.
Q. What if another substance had made you feel closer to God, like say LSD or something like that? Would, then, that as well have become a sacrament for you?
A. Well, I've tried it and I found it opened up a lot of things, too, but I think it's sacred to the people that use it. I'm not standing up, I'm not here because of that, I'm here because what I do use and I found works in my relationship with God is the tree of life, that the police keep stealing it and putting me in jail for it for all these years.[14]
...
Q. Why would you say that it's morally a good thing to have this sacrament, the tree of life?
A. Because it softens people, it wakes them up, it makes them more open to God, more open to peace and all the things and it's healthy for them. The leaf of the tree is for the healing of the nations. ...[15]
Q. What do you mean by healing of the nations?
A. ..., and then I look at the benefits of it and I look at other - if you want to start saying wine as a sacrament, I can see all the harm alcohol has done, yet it's tolerated as a sacrament, and you wouldn't ask a priest why God told him wine.
Well, he can say because Jesus said this is my body and this is my blood, and I could question if that's what he meant by that. Like, so, it's all faith, what I believe is faith. What I've talked to God about in my private closet when I injected the tree of life, which I used to think was marijuana and sometimes it will still slip out, but it isn't, because God opened my eyes to that by, like I say, through experience, through judgments of these courts. This is the only plant of all the plants of this earth, you're trying to stamp out a plant that's probably on the same level with caffeine, if that. To me, the tree of life, is . . .
Q. So because the tree of life has these positive effects . . .
A. Yes, and because it has these effects on me personally.
Q. . . . that's what makes it religious and a sacrament.
A. No, no, I told you. What make it religious is it opens me up more to God. Besides all the other benefits that I can wear it, you know, it will keep me warm, because it will clean my blood also, and the tea, it warms me up that way as well as wearing clothes with it and when I smoke it, it brings me closer to God.[16]
...
Q. But my question was, how is the tree of life religiously a good thing?
A. I already told you. When I pray to God, when I smoke, when I burn it, when I ingest the smoke, it open me up to prayer with God, private communication. I'm not going to tell you what I talk to God about. I can't give you that. I go in my closet and do that or I'll share that with other people, but it's a very opening experience.
Q. Why do you go to your closet?
A. Because the Bible told me to, Jesus told me to.
Q. In the Bible.
A. Yes, if you want to pray, don't pay [sic] like the pagans do in crowds. Go to your closest and close the door and talk to God. He's listening to you. I can put up a wall right now and talk to God if I have to.
Q. So, if that's what the Bible says, then why do you also use the sacrament of the tree of life in a group?
A. Well, to share. That's a different way of worshipping God, to worship together. That's why the church, it works that way. Whose that worship that way gather to do that. We're a culture.[17]
...
Q. You're saying that you were told by God that this is the tree of life and to use it as part of your sacrament.
A. Yes, yes, God didn't tell me not to.
Q. But if you received another message from God that...
A. Wait a minute we need the rules. Did you see the rules on the site? Only the women make the rules, she can change her mind at any time. If God's a woman, yes, I'm in trouble, and the man-made is always wrong. I don't have a copy or I'd give it to you. But, seriously, no, I don't think God's going to change His mind. God isn't speaking with a forked tongue, isn't an Indian giver, and God showed me this and, you know, over the years I've been incarcerated and people have said, "Boy" the guards say, "you might live to regret what you're fighting for." And I looked at it up and down, and long before I smoked marijuana I worked in Yorkville at 17 years old with the Diggers, and I found the people that were smoking marijuana weren't idiots. They were usually school teachers trying to help drug addicts and alcoholics recover in the Yorkville scene, right.
So, later on, much later on in life, maybe I was around 20-ish when I smoked the drug, and I relate to God and that's when it happened for me and it's just kept happening and just kept growing. I realized there's a whole culture behind it. In fact, it's the oldest cult on earth. God said to Adam and Eve, tend the garden, agriculture. That's all we are and the most important plant in that garden which I have come to identify is the tree of life and I have found it. It works, it does everything God says it does and I talk best to God and pray best when I use that. All the other things are just benefits. I have to use it in my religion, I have to use it in my prayers, sister.
Q. And how strongly do you believe in needing to disseminate the tree of life? Is that also a strong belief of yours?
A. I think it's the church's responsibility to do that and that's why we're here. We can't, we can't - we don't want situations where the police are raiding our places where we grow the sacred herb. I don't want that. I want to be protected.
Q. Do you think that's also part of the sacrament, needing to disseminate?
A. Of course, tending the garden. Who's going to grow it? If we don't grow wheat we don't have bread.
Q. Is it something that you receive any donations for doing from. . .
A. We're going to have to.
Q. ...when you disseminate it?
A. We're going to have to receive donations for doing that.[18]
[22] Thus, I am satisfied that there is evidence before the Court that the Plaintiffs sincerely believe that marijuana or, as they prefer, "the tree of life", is a sacrament to them and in their church. It facilitates their communication with God, their peacefulness and their openness to God and to other persons.
[23] More directly on the issue of cultivation and dissemination, Brother Baldasaro acknowledged that "we", and I assume by that he meant the church or he and Brother Tucker, would receive "donations" for disseminating the product of " tending the garden".
iii) The Law
[24] Justice Sharlow, in her reasons dismissing an earlier motion to strike this action that are extensively quoted in the Annex to these reasons, provides an admirable summary of the caselaw that is here relevant. That being said, counsel for the Respondent cited additional cases before me which are deserving of note.
[25] In R. v. Edwards Books and Art Ltd.[19], Chief Justice Dixon, for himself and Justices Chouinard and Le Dain wrote:
The purpose of s. 2(a) [of the Charter] is to ensure that society does not interfere with profoundly personal beliefs that govern one's perception of oneself, humankind, nature, and, in some cases, a higher or different order of being. These beliefs in turn govern one's conduct and practices. The Constitution shelters individuals and groups only to the extent that religious beliefs or conduct might reasonably or actually be threatened. For a state-imposed cost or burden to be proscribed by s. 2(a) it must be capable of interfering with religious belief or practice. In short, legislative or administrative action which increases the cost of practising or otherwise manifesting religious beliefs is not prohibited if the burden is trivial or insubstantial:.. [citation omitted]
[26] In R. v. Videoflicks Ltd. et al.[20], Justice Tarnopolsky wrote for the Court:
In my view, where one claims exemption on grounds of religion or conscience to a particular government regulation or requirement, one must be prepared to show that the objection is based upon a sincerely held belief based upon a lifestyle required by one's conscience or religion. Otherwise, s.2(a) of the Charter might become a limitless excuse for avoiding all unwanted legal obligations.
[27] In B. (R.) v. Children's Aid Society of Metropolitan Toronto[21], Justices Iacobucci and Major, with the support of Justice Cory, wrote:
Just as there are limits to the ambit of freedom of expression ..., so are there limits to the scope of s. 2(a), especially so when this provision is called upon to protect activity that threatens the physical or psychological well-being of others. In other words, although the freedom of belief may be broad, the freedom to act upon those beliefs is considerably narrower, and it is the latter freedom at issue in this case. The fact that "freedom" does not operate in a vacuum was underscored by Dickson J. (as he then was) in his seminal decision in R. v. Big M Drug Mart Ltd., ...:
Freedom in a broad sense embraces both the absence of coercion and constraint, and the right to manifest beliefs and practices. Freedom means that, subject to such limitations as are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others, no one is to be forced to act in a way contrary to his beliefs or his conscience.
[citations omitted, emphasis in the original]
[28] In Trinity Western University v. British Columbia College of Teachers[22], Justices Iacobucci and Bastarache, for the majority, wrote:
...the proper place to draw the line in cases like the one at bar is generally between belief and conduct. The freedom to hold beliefs is broader than the freedom to act on them.
[29] In paragraph [16] in these reasons, I note that courts have otherwise spoken in relation to "...medicinal, healing and other uses" of certain controlled substances. Of particular relevance is the decision of the Ontario Court of Appeal in R. v. Parker[23]. The headnote to the cited report reads in part as follows:
The accused was charged with cultivating marijuana under the now-repealed Narcotic Control Act,... . As the result of a second search of his home, he was also charged with possession of marijuana under the Controlled Drugs and Substances Act. He suffered from epilepsy and experienced frequent, severe and potentially life-threatening seizures. His attempts to control those seizures with conventional medication were only moderately successful. He found that he could substantially reduce the incidence of seizures by smoking marijuana. The accused could not locate a lawful source of marijuana and grew his own.
The charges were stayed at trial. The trial judge found that the accused required marijuana to control his epilepsy and that the prohibition against marijuana infringed his rights under s. 7 of the Canadian Charter of Rights and Freedoms. In order to protect the accused and others like him who need to use marijuana for medicinal purposes, the trial judge read into the legislation an exemption for persons possessing or cultivating marijuana for their "personal medically approved use". The Crown appealed.
[30] The Ontario Court of Appeal disposed of the appeal before it in the following terms which are quoted from page 551:
Accordingly, I would vary the remedy granted by the trial judge and declare the marijuana prohibition in s. 4 of the Controlled Drugs and Substances Act to be invalid. I would suspend the declaration of invalidity for a period of 12 months from the release of these reasons. The respondent is exempt from the marijuana prohibition in s. 4 of the Controlled Drugs and Substances Act during the period of suspended invalidity for possession of marijuana for his medical needs. I would set aside those parts of Sheppard J.'s judgment reading in a medical exemption into the former Narcotic Control Act and the Controlled Drugs and Substances Act and ordering the return of the plants seized in the September 1997 search. In all other respects, I would dismiss the Crown appeal.
[31] Thus, the Plaintiffs' challenge to certain of the provisions of the Controlled Drugs and Substances Act, as they relate to marijuana, is not without successful and recent precedent, albeit those challenges have not been on the basis of freedom of religion.
iv) Findings
[32] Against the reasoning of Justice Sharlow based on the authorities cited by her and against the foregoing authorities not cited by Justice Sharlow, and against the evidence of the Plaintiffs cited herein, I make two findings with regard to the Plaintiffs' action based upon freedom of religion: first, the Plaintiffs' claim to be exempt from the provisions of the Controlled Drugs and Substances Act as it relates to dissemination of marijuana or the "tree of life" presents no genuine issue for trial or, in the alternative, is so doubtful that it deserves no further consideration; and secondly, in all other respects, the Defendant has failed to meet the burden on it to establish that there is no genuine issue for trial or success is so doubtful that the matter deserves no further consideration.
[33] With regard to cultivation and dissemination, except in relation to cultivation for personal use, the evidence on behalf of the Plaintiffs is, at best, marginal. Against such evidence as there is, I am satisfied that the interest of the public at large far outweighs the interests of the Plaintiffs in being able to cultivate and disseminate marijuana, for donation or reward, to support their own religious beliefs and practices and those of the adherents to their church. That there are alternative means to meet any legitimate demands that are established by others for acquisition and possession of marijuana for use by them as or in support of a sacrament in the Plaintiffs' church is well borne out by arrangements described in reasons for order in Patriquen v. Lucie McLung and others[24].
[34] As regards possession and cultivation by the Plaintiffs for personal use as or in support of a sacrament in their religious worship, I cannot conclude that the Plaintiffs' action presents no genuine issue for trial or that the issue presented is so doubtful that it deserves no further consideration. The Plaintiffs' evidence as cited earlier in these reasons is much stronger on simple possession and cultivation for personal use as or in support of a sacrament in strongly held personal religious beliefs than is the evidence on any other aspect of the Plaintiffs' claim for relief. Similarly, I am satisfied on the basis of the abundance of case law cited by Justice Sharlow and additional case law cited earlier in these reasons provides potential room for relief to the Plaintiffs in this area, depending almost entirely upon the credibility and strength of the Plaintiffs' evidence at trial.
CONCLUSION
[35] In the result, while the Defendant will be significantly successful on this motion for summary judgment, she will not be fully successful. The Defendant's motion will be granted in all respects except as to the Plaintiffs' claim for relief against the application of the Controlled Drugs and Substances Act as it pertains to their possession and cultivation of marijuana or the "tree of life" for their personal use as or in support of a sacrament in their religious worship, on the particular facts of this matter. The latter claim should proceed to trial or other final disposition.
COSTS
[36] Given the divided success on this motion for summary judgment, there will be no order as to costs of the motion.
_________________________________
Judge
Ottawa, Ontario
August 29, 2003
Annex
(Paragraph [6] of the reasons)
[20] Finally, the Crown argues that the plaintiffs do not have a reasonable cause of action because they have failed to establish either an actual violation of their rights under the Charter, or the threat of such a violation. As stated above, the plaintiffs say that the existence of the challenged law creates a threat of prosecution that affects their religious freedom.
[21] In a cursory survey of the case law, I have been unable to find any case that supports the general proposition that the right of freedom of religion can never prevail over a law that makes possession of a sacrament unlawful. In the absence of such authority, I cannot conclude that the plaintiff's claim has no hope of success.
[22] That is not to say that the plaintiffs' case is without difficulty. The plaintiffs seek a complete invalidation of the marijuana laws because the religious freedom of the members of their church is adversely affected by those laws. The Crown says that the remedy sought is disproportionate to the problem, and in the end a court may agree.
[23] It is abundantly clear from the case law that religious freedom, while important, is not unfettered. An early survey of some of the relevant cases can be found in R. v. Church of Scientology of Toronto and Zaharia (1987), 31 C.C.C. (3d) 449 (C.A.). In that case, the Ontario Court of Appeal said, at pp. 467-473...:
"Reliance is placed upon the Charter as constitutionally enshrining the recognition of freedom of religion. The appellant Scientology relies on R. v. Big M Drug Mart Ltd. ... [1985] 1 S.C.R. 295. The guiding principle of this judgment is set forth by Chief Justice Dickson at p. 336:
'A truly free society is one which can accommodate a wide variety of beliefs, diversity of tastes and pursuits, customs and codes of conduct. A free society is one which aims at equality with respect to the enjoyment of fundamental freedoms and I say this without any reliance upon s. 15 of the Charter. Freedom must surely be founded in respect for the inherent dignity and the inviolable rights of the human person. The essence of the concept of freedom of religion is the right to entertain such religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination. But the concept means more than that.
....
'One of the major purposes of the Charter is to protect, within reason, from compulsion or restraint. Coercion includes not only such blatant forms of compulsion as direct commands to act or refrain from acting on pain of sanction, coercion includes indirect forms of control which determine or limit alternative courses of conduct available to others. Freedom in a broad sense embraces both the absence of coercion and constraint, and the right to manifest beliefs and practices. Freedom means that, subject to such limitations as are necessary to protect public safety, order, health, or morals or the fundamental rights or freedoms of others, no one is to be forced to act in a way contrary to his beliefs or his conscience.
'What may appear good and true to a majoritarian religious group, or the state acting at their behest, may not, for religious reasons, be imposed upon citizens who take a contrary view. The Charter safeguards religious minorities from the threat of "the tyranny of the majority".
. . . .
" we think it is appropriate to note that the mere fact that an organization claims to be a religion does not bar the Crown or any other litigant from seeking the assistance of the court in the determination of either criminal or civil wrong.
. . . . .
"In Canada, there are many instances where the sincerely held beliefs of members of particular religious groups or sects have been held to be ineffectual defences to the alleged breaches of laws of this country. In R. V. Lewis (1903), 7 C.C.C. 261, ..., this Court held that a conscientious objection to medical treatment because of the belief in the doctrines of the sect known as "Christian Scientists" is not a "lawful excuse" for failing to provide medicines and medical aid under the Code. In R.V. Chomkowski (1973), 11 C.C.C. (2d) 562, ..., a Jehovah's Witness who believed that he would give his breath only to God and not to the police was convicted for refusing to provide a breath sample for breathalyzer testing. See also R. v. Reed (1983), 8 C.C.C. (3d) 153, where the accused was convicted of causing a disturbance contrary to the Code, by shouting at and disturbing an assembly of persons meeting for religious worship, despite his belief that as a dissenter from the Jehovah's Witnesses he had a right to express his freedom of conscience and religion and to denounce the Jehovah's Witnesses. In R. v. "Bear's Shin Bone" (1899), 3 C.C.C. 329, ..., an Indian who married twice, according to the marriage custom of his tribe, was convicted of bigamy.
"In Baxter v. Baxter (1983), 6 D.L.R. (4th) 557, ... Pennell J. of the High Court of Justice of this province refused to give effect to the argument of a husband respondent in a divorce proceeding that the granting of a decree absolute was an infringement of his right to exercise freely his religion and opinions, as guaranteed by s. 2 of the Charter. At p. 560, Pennell J. stated:
'The fact that the government cannot exact from the individual a surrender of the smallest part of his religious scruples does not mean that he can demand of the government exclusion of his marriage from the provisions of the Divorce Act, the better to exercise his religious beliefs.'
"Similarly, the British Columbia Supreme Court, in Price, Fraser and McRae v. A.G. of British Columbia et al., [1976] 5 W.W.R. 656, held that while the religious beliefs of a union member may have permitted him to refrain from joining a union, it was not an infringement of his rights that he be required to contribute to the union financially to the same extent as a member..
"The courts of this country have not hesitated to interfere with religious practices when they run contrary to existing laws or, indeed, in some cases, acceptable practices. In Re Singh et al. and The Queen (1985), 18 C.C.C. (3d) 31, a trial judge refused to permit a member of the Sikh religion to carry a ceremonial dagger into the courtroom. Chief Justice Dewar held that the trial judge was correct. Although the accused, as a baptized member of the Sikh religions, was required by the tenets of his religion to wear the kirpan (dagger) at all times, Dewar C.J.Q.B., held that the ruling of the trial judge was not an unconstitutional infringement of the accused's freedom of religion as guaranteed by s. 2(a) of the Charter. The Chief Justice stated that such a ruling would serve the transcending public interest that justice be administered in an environment free from any influence that might tend to thwart the process; the ruling was made in the exercise of the court's jurisdiction to maintain order and security in the courtroom. It was, therefore, a reasonable limit prescribed by law as could be demonstrably justified in a free and democratic society.
"In R. v. Harrold (1971), 3 C.C.C. (2d) 387 ..., leave to appeal to S.C.C. refused, May 5, 1971, the accused was a member of a religious group which had as its mandate the systematic propagation of spiritual knowledge to society at large. The accused was convicted of contravening the City of Vancouver's anti-noise by-law. Tysoe, J.A., speaking for the British Columbia Court of Appeal, stated at p. 374: "The right to freedom of religion does not permit anyone, acting under the umbrella of his religious teachings and practices, to violate the law of the land, whether that law be federal, provincial or municipal." Similarly, in R. v. Jack and Charlie (1982), 67 C.C.C. (2d) 289, ..., affirmed 21 C.C.C. (3d) 481, ..., the accused was convicted of hunting deer out of season despite his contention that he needed to use the meat in a religious ceremony. See also Tucker et al. v. The Queen, [[1979] O.J. No. 1532,] and R. v. Baldasaro, [[1982] O.J. No. 2082] (both unreported decisions of the Ontario Court of Appeal, the first released on November 28, 1979 and the other on November 15, 1982; leave to appeal to S.C.C. refused, January 22, 1980 and January 25, 1983 respectively), where this Court held that notwithstanding the contentions of the accused persons as to the necessity for the use of marijuana in their religious practices, they were subject to the Narcotic Control Act.
"In Re Fardella and The Queen ..., [1974] 2 F.C. 465, ..., the majority of the Federal Court of Appeal held that the requirement that a child care worker oblige the students under his charge to attend religious services did not violate his rights under the Canadian Bill of Rights, which protected, inter alia, freedom of religion. His right to believe and worship or not to believe and worship as he pleased had not been interfered with in any way. The requirement that he oblige the students under his charge to attend denominational religious services might be an infringement of the religious freedom of the children or their parents if they were compelled to attend -- which they were not -- but it was not an infringement of his rights. The Court held that he was properly discharged for failing to look after this aspect of his duties."
[24] I note that two of the cases cited in the Church of Scientology decision relate to the Plaintiffs in this case. It is not clear whether the Charter issues that are the subject of this action were or could have been raised in those proceedings. But in the later case of R. v. Baldasaro, [1982] O.J. No. 2033 (C.A.), the Ontario Court of Appeal said this:
"We do not think that the trial judge erred as a matter of law in instructing the jury that it was not a defence to the charge that the accused had possession of the marijuana for use as part of their ritual and practice of their Church. The provisions of the Charter of Rights and Freedoms granting freedom of religion affords no defence in this case."
[25] This passage gives some support to the Crown's argument that the plaintiff's case is without merit. However, it is impossible to determine from the very short reasons for decision in that case what the facts were that led to the conviction. Perhaps there was evidence in that case that would have been capable of proving the facts alleged in the amended statement of claim in this case, but perhaps there was not. Perhaps the constitutional argument proposed to be made in this case was made, but perhaps it was not.
[26] Also favouring the Crown's position are a number of cases in which the prohibition against the possession of marijuana has been held not to infringe section 7 of the Charter (the right to life, liberty and security of the person): R. v. Hamon (R.) ... (1993), 85 C.C.C. (3d) 490 (C.A.), leave to appeal refused January 27, 1994; R. v. Malmo-Levine (D.) et al., [1998] B.C.P.C. Uned. 961 (S.C.); R. v. Caine, (April 20,1998), Surrey 65381 (B.C.P.C.); R. v. Hunter (I.F.), [1997] B.C.T.C. Uned. 782 (S.C.); R. v. Clay (C.J.) and Prentice (J.K) 1997, 39 O.T.C. 89; ... . In one of those cases, Malmo-Levine, the issue of religious freedom under s. 2 of the Charter was also raised, but it was rejected on the facts; there was no religious foundation to the beliefs professed by the accused.
[27] On the other hand, there are at least two cases in which the courts have been persuaded to allow for a "constitutional exemption" from marijuana laws on medical grounds: R. v. Parker (1997), 12 C.R. (5th) 251 (Ont. Prov. Ct.); Wakeford v. Canada ... (1999), 173 D.L.R. (4th) 726 (Gen. Div.). Whether the reasoning in those cases can be extended to protect the right of religious freedom seems to me to be an open question.
[28] The Crown is concerned, and properly so, about the lack of a factual matrix for the determination of the constitutional questions raised by the plaintiffs, such as would exist if this constitutional challenge were raised in the context of a prosecution under the challenged legislation. However, there are factual allegations in the amended statement of claim relating specifically to the plaintiffs and their religion, and relating to the properties of marijuana and the other named substances. Evidence as to the truth of those allegations will have to be adduced at a trial or possibly through examinations for discovery. If the plaintiffs' evidence is insufficient to prove the alleged facts, their claim may fail. But that is no reason to strike the claim at this stage.
[29] The Crown's motion to strike the amended statement of claim is dismissed. Costs of the motion will be costs in the cause. [some citations omitted, emphasis added in paragraph [28].
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1805-98
STYLE OF CAUSE: REVEREND BROTHERWALTER A.TUCKER
REVEREND BROTHER MICHAEL J. BALDASARO
And
HER MAJESTY THE QUEEN
PLACE OF HEARING: HAMILTON, ONTARIO
DATE OF HEARING: JUNE 23,2003
REASONS FOR ORDER: THE HONOURABLE MR. JUSTICE GIBSON
DATED: August 29, 2003
APPEARANCES:
REVEREND BROTHER WALTER A. TUCKER
FOR APPLICANTS
REVEREND BROTHER MICHAEL J.BALDASARO
FOR APPLICANTS ANDREA HORTON
FOR RESPONDENT
JAMES GORHAM
FOR RESPONDENT
SOLICITORS OF RECORD:
REVEREND BROTHER WALTER A.TUCKER
REVEREND BROTHER MICHAEL J.BALDASARO
PHOENIX MISSION OF GOD
THE ASSEMBLY OF THE CHURCH OF THE
UNIVERSE
535 BARTON STREET, EAST
HAMILTON, ONTARIO
L8L 2Y9
FOR APPLICANTS
P.2
MORRIS ROSENBERG
DEPUTY ATTORNEY GENERAL OF CANADA
DEPARTMENT OF JUSTICE
ONTARIO REGIONAL OFFICE
THE EXCHANGE TOWER
130 KING STREET WEST
SUITE 3400, BOX 36
TORONTO, ONTARIO
M5X 1K6
[1] Part I of the Constitution Act, 1982 (R.S.C. 1985, Appendix II, No. 44), being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
[3] (1999), 180 F.T.R. 263.
[4] See Froom v. Canada (Minister of Justice) [2003] F.C. J. No. 448 (C.A.).
[5] [1999] F.C.J. No. 106 (F.C.T.D.).
[6] Transcript, pages 34 and following.
[7] [2003] F.C.J. No. 593 (Q.L.), (F.C.T.D.), not cited before me; appeal filed April 17, 2003, Court File: A-188-03.
[8] Evidence cited in the Defendant's Memorandum of Fact and Law (Tabs 1 to 30), Volume 2 of 2, (the "Evidence"), Tab 19, pages 17 and 18.
[9] The Evidence, Tab 19, pages 16 and 17.
[10] The Evidence, Tab 19, pages 10 and 11.
[11] The Evidence, Tab 21, page 134, questions 461 and 462.
[12] The Evidence, Tab 21, pages 135 and 136, questions 467 to 472.
[13] The Evidence, Tab 21, page 149, questions 549 to 551.
[14] The Evidence, Tab 29, pages 189 and 190, questions 718 to 720.
[15] The Evidence, Tab 29, page 202, question 754.
[16] The Evidence, Tab 29, pages 202 and 203, questions 755 to 757.
[17] The Evidence, Tab 29, pages 210 and 211, questions 786 to 789.
[18] The Evidence ,Tab 29 pages 216 to 218, questions 808 to 813.
[20] (1984), 48 O.R. (2d) 395 at 423 (Ont. C.A.).
[23] (2000), 49 O.R. (3d) 481.
[24] 2003 F.C. 927, July 29, 2003 (F.C.), at paragraph [4], not cited before me.
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