Date: 20041210
Docket: T-1805-98
Citation: 2004 FC 1729
BETWEEN:
REVEREND BROTHER WALTER A. TUCKER and
REVEREND BROTHER MICHAEL J. BALDASARO
Plaintiffs
and
HER MAJESTY THE QUEEN
Defendant
REASONS FOR ORDER
HENEGHAN, J.
INTRODUCTION
[1] These Reasons follow the Order granted in open Court at Hamilton, Ontario on Tuesday, November 30, 2004. The formal Order dismissing this action was filed in Toronto, Ontario on
the same day, that is November 30, 2004, and provides as follows:
The Defendant's motion to dismiss this action is granted, reasons to follow, the question of costs is reserved.
OVERVIEW OF PROCEDURAL BACKGROUND
[2] By a Statement of Claim issued on September 16, 1995, Reverend Brother Walter A. Tucker and Reverend Brother Michael J. Baldasaro (the "Plaintiffs") challenged the constitutional validity of the prohibitions in the Controlled Drugs and Substances Act, S.C. 1996, c. 19, as amended (the "Act") against possession and trafficking of marijuana, on the grounds that these prohibitions infringe their rights to freedom of religion pursuant to the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), c. 11 (the "Charter"). The Plaintiffs sought the following relief:
a. a Binding Declaration of right issue 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 [sic] 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 issue quashing the provisions of the Controlled Drug and Substance Act pertaining to the use, cultivation and distribution of The Tree of Life, Cannabis, Cannabis Sativa, Marijuana, Hemp, Chanvre, in all its spiritual, medicinal, healing and other uses;
c. a Writ of Prohibition issue 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.
[3] On October 20, 1998, Her Majesty the Queen (the "Defendant") filed a Notice of Motion, seeking an order to strike out the Plaintiffs' action. By Order of Associate Senior Prothonotary Giles dated December 4, 1998, the motion was granted in part and the Plaintiffs were permitted to file an amended Statement of Claim.
[4] The Plaintiffs subsequently served and filed an Amended Statement of Claim on January 10, 1999. The constitutional challenge was particularized but essentially remained the same. The prayer for relief was unchanged.
[5] On September 7, 1999, the Defendant filed another Notice of Motion, again seeking an order to strike out the Plaintiffs' Amended Statement of Claim. By Order filed on December 13, 1999, Justice Sharlow dismissed this motion.
[6] On September 1, 2000, the Defendant filed her Amended Statement of Defence and denied that the Act infringed the Plaintiffs' constitutional and Charter rights. The Defendant denied all of the factual allegations made by the Plaintiffs in their Amended Statement of Claim. The Defendant raised the alternative plea that if the provisions against possession and trafficking in marijuana were found to offend the Plaintiffs' Charter rights to freedom of religion, then such breach was justified pursuant to section 1 of the Charter.
[7] On February 23, 2001, the Defendant filed a motion seeking a stay of this decision pending the conclusion of criminal proceedings against the Plaintiffs, pursuant to the Act, in Hamilton. This motion was argued on February 26, 2001 and by Order issued on March 7, 2001, the motion was dismissed.
[8] In 2003, the Defendant moved for summary judgment, pursuant to the Federal Court Rules, 1998, SOR/98-106 (the "Rules"). The motion was argued in Hamilton on June 23, 2003. By Order dated August 29, 2003, Justice Gibson granted partial summary judgment. He determined that the Plaintiffs' claim concerning the constitutional invalidity of the prohibition against trafficking did not raise a serious issue for trial and dismissed that part of the claim. However, he decided that the constitutionality of the prohibition against possession could proceed and stated the issues for trial.
[9] A Pre-Trial Conference was conducted on November 18, 2003 in Toronto. Prothonotary Milczynski identified the issues for trial as follows:
_ Do the provisions of Controlled Drugs and Substances Act which prohibit the possession and cultivation of marijuana violate the Plaintiffs' rights under section 2(a) of the Charter?; and
_ If the impugned provisions of Controlled Drugs and Substances Act violate the Plaintiffs' rights under the Charter, which is not admitted, but denied, do they constitute a reasonable limit which is demonstrably justified in a free and democratic society?
[10] By Order of the Chief Justice dated July 28, 2004, the matter was set down for trial in Toronto for a period of seven days beginning on November 29, 2003.
[11] The Plaintiffs objected to Toronto as the trial venue. By letter dated July 29, 2004 they sought an adjournment of the trial. By further Order of the Chief Justice dated September 8, 2004, the trial was set down for Hamilton, beginning on November 29, 2004.
[12] Pursuant to the Rules, a Trial Management Conference was held in Toronto on October 7, 2004. The Trial Management Conference Record outlines the matters that were discussed, that is the number of witnesses, the length of testimony, the issue for trial, the documents to be used at trial, hours of sitting, and other matters, including the Plaintiffs' informal request that the time for filing a notice of appeal from the judgment of Justice Gibson be extended.
[13] According to the Trial Management Conference Record, the Plaintiffs said that they would be the only witnesses, as follows:
The Plaintiffs advised that they will be the only witnesses to testify on their behalf. No expert witnesses will be called on their behalf.
[14] This advice is consistent with the notes of the Defendant's counsel which were prepared after the Pre-Trial Conference at the request of Prothonotary Milczynski. Those notes were provided to the Court, with the consent of the Plaintiffs, at the Trial Management Conference held on October 7, 2004. Those notes provide as follows:
(c) The Plaintiffs indicated that they will have two expert witnesses on the issue of the nature of their religion. [Subsequently, however, the Plaintiffs notified the Defendant on December 11, 2003 that they no longer intend to call any witnesses. On January 7, 2004 the Plaintiffs notified the Defendant that they intended to give evidence at trial.]
[15] On October 18, 2004, the Plaintiff Brother Tucker wrote to the Court requesting that an order be "released" relative to the conduct of the Trial Management Conference. The Plaintiff also forwarded a draft Notice of Appeal against the requested Order. On October 27, 2004, Prothonotary Milczynski issued oral Directions that are recorded in the index of recorded entries as follows:
In response to the Plaintiff's letter dated October 19, 2004, requesting Directions of the Court,... The Court (Heneghan J.) in the Trial Management Conference Record dated October 7, 2004 and amended October 8, 2004, directed that 'the sole issue for trial is the question identified by Justice Gibson in his Order dated August 29, 2003, following the Defendant's Motion for Summary Judgment...' The Court (Milczynski P.) states that this is a direction and therefore it cannot be appealed. placed on file on 27-Oct-2004 Confirmed in writing to the party(ies)
[16] On November 4, 2004, the Plaintiff Brother Tucker submitted a Notice of Motion, in writing, seeking an adjournment of the trial date. The basis for the motion for an adjournment was an outstanding motion to the Federal Court of Appeal concerning the request for an extension of time to appeal from the Order of Justice Gibson. At the request of the Defendant, the motion was referred to the Trial Judge and following argument on November 12, an Order issued on November 15, 2004 dismissing the motion for an adjournment.
[17] On November 1, 2004, the Plaintiffs' submitted a Notice of Motion, to be dealt with in writing, to the Federal Court of Appeal, seeking an extension of time to file a Notice of Appeal from the Order of Justice Gibson. On November 19, 2004, the Federal Court of Appeal dismissed the motion for an extension of time to appeal.
[18] On November 18, 2004, the Plaintiffs submitted a second Notice of Motion, to be dealt with in writing, seeking a preliminary determination of a question of law. By Direction issued on November 19, 2004, the motion was set down for an oral hearing by conference call on November 23, 2004. By Order dated November 25, 2004, this motion was dismissed.
PROCEEDINGS OF NOVEMBER 29, 2004
[19] The trial commenced at Hamilton, Ontario on Monday, November 29, 2004 at 9:30 a.m. The Plaintiffs were present, as well as counsel for the Defendant. However, the Plaintiffs did not make an opening statement or call any witnesses, but proceeded to make a series of objections.
[20] First, the Plaintiff Brother Baldasaro said that his dignity had been diminished because counsel for the Crown had been addressing correspondence to him as "Michael Baldasaro", rather than as "Reverend Baldasaro". He said:
If I'm going to give evidence, it's not going to be as Michael Baldasaro, it's going to be as Reverend Baldasaro and if the Crown keeps portraying me and not using my title, I can't do that. I can't give evidence like that.
Transcript, p. 4, lines 14-18
[21] The Plaintiff Brother Baldasaro then objected that correspondence from counsel for the Defendant had not been addressed to the Plaintiffs as "Reverend Brother". He said that addressing correspondence to them as "Mr. Tucker" and "Mr. Baldasaro" means that the Plaintiffs had not been properly served and consequently, their ability to prepare this case had been impaired. He said that he was entitled to be called "Reverend" and referred to Reasons filed in cause No. T-152-85 by Associate Senior Prothonotary Giles where that matter had been addressed. He also said that the Ontario Courts had recognized him as "Reverend Baldasaro".
[22] The Defendant conceded that, for the purpose of facilitating the progress of the trial, counsel would address the Plaintiffs as "Reverend" without prejudice to the position stated in the Amended Statement of Defence.
[23] The Plaintiff Brother Baldasaro next sought an adjournment. He suggested that an adjournment until March 2005 would be "fair" to the Plaintiffs; see page 20 of the transcript.
[24] The Defendant opposed this motion, on the grounds that the Plaintiffs had already raised many of these issues and that they had not succeeded in an earlier motion for an adjournment. As well, the Defendant argued that the Plaintiffs were well aware that this matter was set for trial on November 29 and the Defendant was prepared, with witnesses, including one expert witness, available.
[25] The Plaintiff Brother Tucker indicated that he was prepared to proceed with the trial but he indicated that he had no evidence to give except in relation to the trafficking aspect of their Statement of Claim. He said that he understood that the Plaintiffs' claim for "protection" in relation to the trafficking prohibition of the Act had been "eviscerated" and said the following:
... no matter what you do here, no matter what your decision is here, that they are going to go ahead because they understand that what you have done is eviscerated our claim to protection of the court for our sharing of the sacrament between ourselves.
Transcript, p. 41, lines 8-12
... least I would like to hear you change that, that you can and will make a determination on our ability to distribute between ourselves and as members of the church if you want to.
Transcript, p. 43, lines 1-5
[26] Further, he said the following:
But what I'm saying is that if you're willing to listen to that part of it, then I have no objection to getting on the witness stand and declaring my sincerity and probably convincing you of it too, Your Ladyship.
But if what's going to happen is I'm going to get on that witness stand and give the evidence and say exactly what I've been saying for the past 30 years, and then it's going to be ignored again and I'm going to be attacked at all the levels again and the attacks that are already in place are not going to be just wiped out because it is a violation of my rights under the Charter and if you're not even going to listen to that and hear that or make a determination on that, then I'm wasting your time.
Transcript, p. 42, lines 9-24
And unless I have some assurance of yourself, Your Ladyship, that somehow or another, if I can convince you that what's happening here is a travesty of justice, a violation of my rights as a human being, a violation of the Charter of Rights and Freedoms, if I can convince you of that, then we can stop this criminal prosecution in the lower courts.
Transcript, p. 43, lines 5-13
[27] The Plaintiff Brother Baldasaro then objected that this Court was unable to grant the relief sought by the Plaintiffs, that is, a determination of the constitutionality of the trafficking prohibition of the Act. He said that the decision of Justice Gibson was not binding, as follows:
BROTHER BALDASARO: I only have seven days here and you're taking away the very charter protection we came here for. I don't know.
I don't think Judge Gibson has the right to tell you what to do. You're his equal. You don't have to take that. That's appealable right to the Supreme Court of Canada without any leave.
I think the court is in bed with the Crown. I really believe that. The administration of justice has been in disrepute by the way we've been treated.
Transcript, p. 60, lines 1-12
[28] Further, he indicated that he would continue to seek leave to challenge that decision, saying the following:
BROTHER BALDASARO: Yes, well, like I said, now we're at the point where this court can't give me the relief and the protection of the Charter and in law, it's failed me.
Transcript, p. 66, line 25
And I think that's a violation of my rights under the Charter of Rights and an appeal point. And the fact that Mr. Justice Gibson -- I may have that appeal overturned. That's why there are appeal courts. I will not take no from the Supreme Court an.[sic]
Transcript, p. 67, lines 1-9
[29] The Plaintiff Brother Baldasaro asked for a trial in this Court with a jury. Upon being advised that the Federal Court does not sit with a jury, as provided by section 49 of the Federal Courts Act, R.S.C. 1985, c. F-7, as amended, he stated that was another breach of his constitutional rights. He said that he was not being treated fairly, as appears from the following:
... I'm not a lawyer, but it seems to me and I still believe all the legal advice I have is that Justice Gibson does not have to be followed.
This is your court and if you're saying you can't reach us because of that, this is the same issue obstructing this trial as what's before the Federal Court.
JUSTICE HENEGHAN: It's not obstructing this trial. You don't like it, but that doesn't mean it's obstructing the trial.
BROTHER BALDASARO: I have a right to be treated fairly. And I'm not being treated fairly. You're just not the court, the Crown is taking, like I said, the meat out of why we came here.
Transcript, p. 71, lines 8-22
[30] The Plaintiff Brother Baldasaro also argued that his evidence "is entirely based on my affidavit that is in this file before Justice Gibson", that is the affidavit filed in response to the Defendant's motion for summary judgment. He asked that the affidavit be accepted as evidence by this Court. He argued that the reason for Justice Gibson's Order granting partial summary judgment to the Defendant was the lack of evidence from the Plaintiffs and he submitted that Justice Gibson had erred in failing to consider the affidavits submitted by the Plaintiffs. The Plaintiff Brother Baldasaro argued that if there was no evidence of trafficking before Justice Gibson, then he should not be precluded from introducing such evidence before the trial Court.
[31] The Plaintiff Brother Baldasaro then suggested that possibly this Court "has something to hide" (Transcript, p. 75). He then repeated his submissions concerning an adjournment of the trial, as appears below:
BROTHER BALDASARO: What I'm saying is I shouldn't be subjected to this stuff all the way through here. I shouldn't have lost my right to be who I was in the beginning, at any stage of the proceedings.
All this stuff takes time for me and makes me argue a lot of stuff that I shouldn't even -- we should be standing here in March when this court has three weeks. They'd gladly give us two weeks. I'd even agree on some stuff. And I'll get on the stand.
JUSTICE HENEGHAN: But that's your business altogether in how you want to present your defence in the criminal proceedings.
This is a civil action and you are the plaintiff and I'm waiting for you to start the plaintiff's case.
Transcript, p. 77, lines 14-25
Transcript, p. 78, lines 1-5
[32] Then the Plaintiff Brother Baldasaro argued that counsel for the Defendant in this civil action owed him the same duty that is borne by a Crown prosecutor in a criminal prosecution, as discussed in [1952] 1 S.C.R. 232">Lemay v. The King. [1952] 1 S.C.R. 232 and said the following:
And the court as well, that's his job and he's been tricking and he's been pulling little things to find some, as if I'm some kind of a lawyer and I'm supposed to know the law.
A Minister of the Crown, his duty is not to only protect me, but society. And by abusing me and pretending as he did that I wasn't reverend and all the stuff we've been through to pretend that this criminal court in Ontario and Superior Court of Ontario, that he's going to suspend all the charges against me and then to go around the back door the way he went over there with the Federal Court judge to eviscerate our claim brings the administration of justice into disrepute, totally neutralizes any benefit that would come out of this proceeding designed to over reach and over match me financially and every other which way, especially with costs that you'll order.
Because there's no point in me giving any evidence because my evidence is evidence that I have to share it. Always has been. That's the main stay of our religion. The court would have known that, had our affidavits been looked at. You can't just say the court still hasn't ruled on the validity of our affidavits no matter how much we put before this court.
Transcript, p. 82, lines 7-25 and p. 83, lines 1-7
[33] The Court then inquired about the intentions of the Plaintiffs, as follows:
JUSTICE HENEGHAN: In the meantime, you might think about this if you're telling me you're not going to give evidence, where does that, what are you doing? Are you saying that you're going to walk away from this action?
Transcript, p. 84, lines 9-13
[34] Counsel for the Defendant stated their position in respect of the decision of Justice Gibson as follows:
MR. LEAFLOOR: Yes. And let me clarify something about Justice Gibson's ruling.
It's not our job here today to go behind or around Justice Gibson's ruling. It's there. That matter is disposed of. And we're here to deal with the remaining parts of the claim.
Nonetheless, it is important to note that contrary to what the plaintiffs have said, in fact, Justice Gibson's ruling was based on evidence. There were transcripts before him.
Transcript p. 87, lines 2-11
[35] He then went on to advise that if the Plaintiffs chose not to provide evidence, then the Defendant would move to dismiss their claim, as follows:
They've complained that they want an opportunity to provide their evidence. As you've indicated, they have that opportunity this week. They can get in the witness box and provide evidence today and for the remainder of this week and that's the proper way for us to proceed.
To be fair to the plaintiffs, as well, since I think I hear them saying that it may be their intention to not get into the witness box and not provide any evidence in this trial, and if that were to be the case, it would be our position that there's no evidence before the Court in support of their action and I will invite the Court to immediately dismiss their claim.
Transcript, p. 88, lines 19-23
Transcript, p. 89, lines 1-7
[36] The initial response of the Plaintiffs to this position was to ask, again, for an adjournment, as appears from the following exchange:
JUSTICE HENEGHAN: Well, I don't know. I mean, the ordinary course of events, when an action is started by way of Statement of Claim, the party starting the action is the plaintiff the party responding to it is the defendant.
The ordinary way, the usual way is that the plaintiff presents evidence. If a plaintiff does not submit evidence, well, then there's a question what's going to happen to this action.
BROTHER TUCKER: We feel it should be adjourned to March.
JUSTICE HENEGHAN: It's not going to be adjourned, Brother Tucker.
BROTHER TUCKER: It's the only suggestion I can make that would sound reasonable to me, Your Honour.
JUSTICE HENEGHAN: No, it doesn't sound at all reasonable, given that the parties are here, witnesses are ready.
BROTHER TUCKER: But the case isn't before the court Your Ladyship.
JUSTICE HENEGHAN: Which case?
BROTHER TUCKER: The trafficking.
JUSTICE HENEGHAN: No, it is no longer before the court.
BROTHER TUCKER: That's what I'm saying, Your Ladyship. There's no use wasting your time if the relief your giving me can't be the relief I'm asking for.
JUSTICE HENEGHAN: But the trafficking issue and I want to go back and--
BROTHER TUCKER: It's been eviscerated.
JUSTICE HENEGHAN: No, it hasn't been eviscerated. It has been adjudicated and it has been judged. It has been judged against you.
BROTHER TUCKER: It hasn't been heard as far as I'm concerned.
Transcript, p. 92, lines 11-25
Transcript, p. 93, lines 1-24
[37] The Plaintiff Brother Baldasaro then referred to Mills v. The Queen, [1986] 1 S.C.R. 863 as authority for the proposition that a constitutional challenge requires a factual foundation for adjudication. He argued that Justice Gibson had no evidence to support his decision, as follows:
BROTHER BALDASARO: And Mr. Justice Gibson had none to make that decision. And constitutional charter issues must be adjudicated and determined, not eviscerated on no evidence. He had no evidence before him to cut that out and that's why I'm saying, if it comes up here, he should be ignored as an invalid order.
Transcript, p. 96, lines 21-25 and p. 97, lines 1-2
[38] The Plaintiff Brother Baldasaro then said that the decision of Justice Gibson was not relevant:
All these things add up to the failure of my being able to fight and even indeed, like I said, we still don't believe Justice Gibson's order means anything. It's totally irrelevant.
It's an order. You can't give it weight just because it's there. He's wrong in law and that's to be determined. I won't take no for an answer from even the Supreme Court of Canada.
Transcript, p. 103, lines 15-23
[39] He went on and submitted that he had been denied the equal benefits and protection of the law as follows:
... And if it's not, then I'm being denied the equal benefit and protection of law that a normal practice and all the proceedings in this court are accepted on our affidavits all the way to the Supreme Court of Canada. Not a problem.
Transcript, p. 118, lines 21-25 and p. 119, line 1
[40] The Plaintiff Brother Tucker then said that his co-Plaintiff was suggesting that, in this case, the Defendant was "judge shopping", as appears below:
The other thing that I was going to say to you is this, the Crown, Reverend Baldasaro is saying that the Crown was judge shopping. The only thing I can say--
Transcript, p. 134, lines 21-24
[41] The Plaintiff Brother Tucker then went on to say that the Court would not let him enter the witness box, as appears from the following:
... But I am precluded because what you said is no matter what you I say, no matter even if you believe me as though God was speaking in your ear, even if you, from what you tell me, if even if you believe that, no matter what happened you absolutely believed what I was telling you, you still are precluded from giving me the protection of the Charter in my distribution of sacrament between my fellow human beings and myself.
If you can't do that, then no matter how much I want to get on that witness stand, no matter how much and I do, I can't. And I apologize to Your Ladyship if you feel that I am doing anything to obstruct your court, that is not my--
JUSTICE HENEGHAN: No, no, we're not there yet. But we're getting to the stage where I have to know what the plaintiffs intend to do.
BROTHER TUCKER: I cannot, Your Ladyship, unless you give me some indication that when I'm all finished, if you've had enough evidence to prove that my distribution, my sharing of my life or my sacrament that I believe is God's gift to me, if I cannot share that with my fellow human beings in your estimation after you've heard all the evidence, then I am wasting your time and I'm wasting my time and I'm wasting all these wonderful people's time and I wouldn't do that. That's not my way.
Transcript, p. 139, lines 20-25 and p. 140, lines 1-24
JUSTICE HENEGHAN: Are you telling me you're not going to testify?
BROTHER TUCKER: I cannot.
JUSTICE HENEGHAN: So you're not going to testify?
BROTHER TUCKER: That's right, Your Ladyship, I cannot.
JUSTICE HENEGHAN: So you're saying you cannot testify.
BROTHER TUCKER: I cannot testify because you cannot give me the relief I need, therefore, you are not a competent court before which I can testify. That's all I can say, Your Ladyship, and I say it with very heavy heart and deep regret.
Transcript, p. 141, lines 6-20
[42] Counsel for the Defendant replied to the remarks about "judge shopping" as follows:
MR. LEAFLOOR: If I could just make a brief comment about the plaintiff's commentary on judge shopping.
I find the comments of that sort troubling and insulting.
BROTHER TUCKER: Me too.
MR. LEAFLOOR: And perhaps reflects a lack of understanding of, you know, how the court operates and the processes that the court observes. And obviously they're absolutely without foundation and we deny them. I'm surprised those comments would be made.
Transcript, p. 141, lines 22-25 and p. 142, lines 1-8
[43] In reply, the Plaintiff Brother Baldasaro argued that he had been obstructed by the Defendant in bringing his case forward properly. He related this proposition to the objections of the Defendant about the commissioning of his affidavit of documents and submitted that he had been deprived of an opportunity to discuss the contents of his affidavit of documents with Crown counsel, as follows:
... And like I said, I've been obstructed from even talking about it because of this concern for my affidavit as to whether or not I can even, with Mr. Gorham's letter, as to whether or not I can do anything, put in any further documents.
...
I say that has led to an awful inability for me to bring my case forward properly in a timely fashion.
... So we haven't -- we have no evidence to put on. Our claim has been eviscerated completely.
Transcript, p. 153, lines 24-25 and p. 156, lines 1-3 and lines 10-12
[44] The Plaintiff Brother Tucker then objected to some of the documents contained in the Defendant's book of documents. He said there was "stolen" material in that book. He said that if he were to object to the admission of that material in evidence, the Court could overturn his objection, as follows:
BROTHER TUCKER: And you can override my objection and it would go in any way just like what's happened here. I objected to what's happening to me. You overrode my objection. We're going ahead anyway.
And I've explained to you time and time again there's no use me arguing about something that isn't going to be found in my favour anyway.
Transcript, p. 159, lines 1-9
[45] The Plaintiff Brother Baldasaro then said that he was being denied the opportunity to present evidence, as follows:
BROTHER BALDASARO: My affidavits are before the court and they're not being taken as affidavits. So my evidence is being denied before the court.
Transcript, p. 162, lines 12-15
[46] Shortly after, the Plaintiff Brother Baldasaro said that he wished to tender his affidavit of documents as an exhibit. He claimed that he had a right to discuss the affidavit of documents with Crown counsel and had been deprived of the opportunity to do so:
Now I've got half a case. I can't expect to be mistreated at some later date because they've allowed me to treat them like that. If he signed "reverend" on everything which he could have done and cleared this up a long time ago and it should have been. Nobody should have to come to court and argue about the kind of things we're doing.
Transcript, p. 168, lines 18-25
[47] Counsel for the Defendant advised that the Plaintiffs were merely repeating prior submissions and suggested that the Court proceed on the basis that the Plaintiffs were not going to testify. The Plaintiff Brother Baldasaro disagreed, as follows:
BROTHER BALDASARO: That's not what I'm saying. I'm saying that the procedural obstacles have caused this case to become a nullity. They're unconstitutional.
Transcript, p. 169, lines 16-18
...
BROTHER BALDASARO: Judge Gibson did. And you say we can't go any further. You say our affidavits don't mean anything. You're saying we've got point of law that should be adjudicated before I'm abused any further. And I've been abused to this point and rushed and pushed into this trial that could have easily gone into 2005, easily. And I believe we said so in front of the Prothonotary.
She in fact in their own notes of the pre-trial, it says late 2004 or early 2005. Well, why the big rush? Why? Why? You know, especially when they know they have an issue with our titles and they have an issue with our affidavits. And it is over reached.
It's an abuse of the process of the honourable court.
Transcript, p. 170, lines 14-25 and p. 171, lines 1-5
[48] The Plaintiff Brother Baldasaro, upon being advised that the Federal Courts Act, supra and the Rules govern the practice and proceedings in this Court, argued that section 46 of that Act is ultra vires. See transcript, page 173.
[49] When asked directly, and not for the first time, if he was going to testify, the Plaintiff Brother Baldasaro replied, as follows:
JUSTICE HENEGHAN: So are you going to give evidence?
BROTHER BALDASARO: I can't.
JUSTICE HENEGHAN: Why not?
BROTHER BALDASARO: If I don't say I'm being raped when the rape is taking place, I cannot say I'm being raped later.
Transcript, p. 174, lines 15-21
[50] Again, the Plaintiff Brother Baldasaro returned to the Order of Justice Gibson. He said that it was not binding, as appears below:
BROTHER BALDASARO: Yes, we have. But that's because we don't believe his order. His order is -- nobody has to follow a law or an order that's unconstitutional. He didn't have the right to make that and you can change that.
Transcript, p. 177, lines 11-15
[51] Shortly after, the Plaintiff Brother Baldasaro elaborated on his decision not to testify:
...I can't give evidence. This court has violated -- this court has violated my constitutional rights.
JUSTICE HENEGHAN: Are you telling me you choose not to give evidence?
BROTHER BALDASARO: No, I can't. You have violated my Charter Rights by your decision on the affidavit.
Transcript, p. 179, lines 2-9
[52] The Defendant then argued that since the Plaintiffs had clearly demonstrated that they were not going to testify, then there was no case to be met and accordingly, presented a motion for dismissal. In this regard, the Defendant relied upon the recent decision of Justice von Finckenstein in 351694 Ontario Ltd. v. Paccar of Canada Ltd., [2004] F.C.J. No. 1919.
[53] The Plaintiffs were specifically asked if they had closed their case, as follows:
JUSTICE HENEGHAN: They haven't really closed their case. They've indicated what they said is they can't give evidence. I can ask them if they've closed their case.
BROTHER BALDASARO: I haven't been allowed to open it, Your Honour.
JUSTICE HENEGHAN: You have been allowed to open it, Brother Baldasaro. You've been repeatedly invited to open it and you've chosen not to.
Transcript, p. 191, lines 23-25 and p. 192, lines 1-7
[54] The Plaintiff Brother Baldasaro went on to challenge the impartiality of the Court, as appears below:
BROTHER BALDASARO: Or in any other way you decide to let it. And you're saying my discretion is no to you and yes with whatever they want. And that really scares me because they sit here, they do what they want.
Like, I would feel a lot better about the whole situation if you were making them do what they're supposed to treat us like everybody else.
If this court, like I said, this is the point: The court has violated my Charter Rights. I feel that it's not impartial.
Transcript, p. 194, lines 9-20
[55] The Plaintiffs were asked, again, individually, if they intended to testify, as follows:
JUSTICE HENEGHAN: Are you going to give evidence in the witness box in this trial?
BROTHER BALDASARO: I can't. I want to, but I can't. I would be to violate myself and to agree that the violation is okay. It would be to subject myself to days of testimony and transcripts just to appeal the few points of law that we've already outlined here which is about all I can afford. So I'm going to sit down and stop talking and hope that Your Honour sees that this case is going to be simply dismissed and leave us to appeal to see if we haven't been violated.
Transcript, p. 195, lines 18-25 and p. 196, lines 1-4
JUSTICE HENEGHAN: Brother Tucker, are you going to give evidence?
BROTHER TUCKER: Your Ladyship, I regret to say that I am not. I believe that I am precluded by the decisions that have been made by this Court from being able to exercise my rights under the Charter. And until that part is straightened out, I can't go any further.
Transcript, p. 196, lines 24-25 and p. 197, lines 1-5
[56] The Court adjourned to consider the Defendant's motion, and upon resuming on November 30, 2004, granted the motion and dismissed the action.
DISCUSSION
[57] This matter came on for trial at Hamilton, Ontario on Monday, November 29, 2004. Rules 274 to 278 govern trial procedures. Rule 274(1) provides as follows:
| 274. (1) Subject to subsection (2), at the trial of an action, unless the Court directs otherwise,
(a) the plaintiff shall make an opening address and then adduce evidence;
(b) when the plaintiff's evidence is concluded, the defendant shall make an opening address and then adduce evidence; and
(c) when the defendant's evidence is concluded, the plaintiff may adduce reply evidence.
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274. (1) Sous réserve du paragraphe (2), à l'instruction d'une action, sauf directives contraires de la Cour :
a) le demandeur fait un bref exposé préliminaire, puis présente sa preuve;
b) une fois que le demandeur a présenté sa preuve, le défendeur fait un bref exposé préliminaire, puis présente sa preuve;
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[58] The Plaintiffs did not follow this process but discharged a volley of objections and continually sought to adjourn the trial. Repeated inquiries were made covering their intention to testify. They ultimately chose not to present any evidence.
[59] The core of the Plaintiffs objection was the decision of Justice Gibson upon the Defendant's motion, in 2003, for summary judgment. The key complaint in this regard was that the decision, granting partial summary judgment to the Defendant, was made without evidence. The basis of that argument was that Justice Gibson had rejected the Plaintiffs' affidavits.
[60] A secondary argument was the status of the Plaintiffs' to commission affidavits. The Defendant had argued that the Plaintiffs had not shown that they were authorized to commission affidavits, in accordance with section 54(1) of the Federal Courts Act, supra and accordingly, the Plaintiffs' affidavits were not in proper form.
[61] The Plaintiffs' response was to say that their affidavits, commissioned before each other, had been recognized, on at least one occasion, by the Ontario Superior Court. The Plaintiffs referred to a habeas corpus proceeding before Justice Borkovich of the Ontario Superior Court of Justice sitting at Hamilton, Ontario on September 15, 2000.
[62] The question of admissibility of the Plaintiffs' affidavits in the Ontario Courts has nothing to do with the conduct of proceedings in this Court. The "gap" rule does not apply since this Court is governed by its own rules of practice which have been made pursuant to section 46 of the Federal Courts Act, supra. Section 46(1)(a)(v) is relevant and provides:
| 46. (1) Subject to the approval of the Governor in Council and subject also to subsection (4), the rules committee may make general rules and orders
(a) for regulating the practice and procedure in the Federal Court of Appeal and in the Federal Court, including, without restricting the generality of the
foregoing,
...
(v) rules governing the taking of evidence before a judge or any other qualified person, in or outside Canada, before or during trial and on commission or otherwise, of any person at a time either before or after the commencement of proceedings in the Federal Court of Appeal or the Federal Court to enforce the claim or possible claim in respect of which the evidence is required,
[Emphasis added]
...
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46. (1) Sous réserve de l'approbation du gouverneur en conseil et, en outre, du paragraphe (4), le comité peut, par règles ou ordonnances générales_:
a) réglementer la pratique et la procédure à la Cour d'appel fédérale et à la Cour fédérale, et notamment_:
...
(v) régir les dépositions faites devant un juge ou toute autre personne qualifiée - au Canada ou à l'étranger, avant ou pendant l'instruction et, sur commission ou autrement, avant ou après le début de l'instance devant la Cour d'appel fédérale ou la Cour fédérale -, à l'appui d'une demande effective ou éventuelle, [je souligne]
...
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[63] Rule 282 governs the manner in which evidence is given at trials in this Court and provides as follows:
| 282. (1) Unless the Court orders otherwise, witnesses at trial shall be examined orally and in open court.
(2) All witnesses shall testify under oath.
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282. (1) Sauf ordonnance contraire de la Cour, les témoins à l'instruction sont interrogés oralement, en séance publique.
(2) Les témoins déposent sous serment.
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[64] The arguments, and complaints of the Plaintiffs about their affidavits, both as part of the pre-trial process, including preparation of an affidavit of documents, and in the motion that was adjudicated by Justice Gibson, have nothing to do with the conduct of the trial that was scheduled for November 29, 2004.
[65] In my opinion, the submissions of the Plaintiffs in this regard, particularly those of the Plaintiff Brother Baldasaro, were no more than an attempt to frustrate the trial process and further, to invite this Court to review the Order of Justice Gibson. These efforts were improper, unauthorized and close to an abuse of the Court.
[66] The Plaintiffs are no novices in judicial proceedings in this Court and elsewhere. They chose to represent themselves, as permitted by Rule 119. They were fully aware that the trial was to commence on November 29, 2004. Pursuant to both the Trial Management Conference Record issued on October 8, 2004 and the Reasons for Order issued on November 25, 2004, they were aware that the evidence would be oral evidence.
[67] The Plaintiffs were, or should have been, aware that the effect of the Order of Justice Gibson issued on August 29, 2003, was an adjudication of the constitutional challenge to the trafficking prohibition in the Act. They chose to do nothing about appealing that Order until November 1, 2004.
[68] The issue before me was the consequence of their decision not to testify.
[69] This is a civil action. The Plaintiffs bear the burden of establishing, on a balance of probabilities, that their constitutional rights to freedom of religion are breached by the challenged provisions of the Act. If such breach is shown, the burden would shift to the Defendant to establish, upon a balance of probabilities, that the breach was justified pursuant to section 1 of the Charter.
[70] The Plaintiffs submitted no evidence. The Defendant moved for a non-suit. As noted by the Federal Court of Appeal in Gerald's Machine Shop Ltd. v. Ship Melina and Keith II, (1999), 243 N.R. 189 (F.C.A.) at page 192, "In this Court, there is little jurisprudence dealing with nonsuit." The Court, however, provided some guidelines as follows:
The authorities indicate that the trial judge should have been guided by the following rules: 1) he should not, of his own motion, have directed a nonsuit; 2) the motion for nonsuit on the counterclaim should not have been made until the end of the defendant's evidence. Procedural fairness requires that the judge should have left it to the plaintiff to decide whether to bring a motion for nonsuit on the counterclaim and that any motion for nonsuit should not have been entertained until after the defendant's evidence was completed. ...
[71] In the present case, the record is clear that the Plaintiffs were asked repeatedly when they were going to open their case and subsequently, if they were going to testify. They were asked if they were going to discontinue this action. Then the Defendant advised that she would move for a non-suit if the Plaintiffs failed to meet their evidentiary burden.
[72] The Plaintiffs gave no indication that they would not proceed until the morning of November 29, 2004, when they asked for an adjournment. I conclude that the purpose of that request was to foreclose an adjudication of the remainder of the claim until outstanding criminal charges under the Act are disposed of, pursuant to a trial which is scheduled before the Ontario Courts in March 2005.
[73] The Plaintiffs have not shown why a delay for that purpose was necessary. Indeed, the record shows that in 2001, the Plaintiffs opposed a motion by the Defendant to stay this proceeding pending the outcome of the criminal prosecutions in Hamilton. The Plaintiffs, in my opinion, adopted this inconsistent position before this Court simply to suit their own purposes.
[74] In the recent decision cited by the Defendant, that is 351694 Ontario Ltd., supra, the Court was faced with a motion concerning the applicability of a limitation period. This motion was argued after submission of evidence by the plaintiff and before the entry of evidence by the Defendant. At paragraph 9, the Court said as follows:
9. In this case, while the evidence of the Plaintiffs have been presented, the evidence of the Defendants is yet to come. Weighing the evidence at this point would be fundamentally unfair to the Plaintiffs as it would give the Defendants a road map for attacking the Plaintiffs' evidence if this motion does not succeed. The effect of this motion is very similar to a motion for non-suit; indeed one could consider it a non-suit motion because the Plaintiffs have not made out its case in terms of time. With regard to a non-suit motion, the Newfoundland Court of Appeal in Hodder v. Waddleton (1990), 87 Nfld & P.E.I.R. 52 stated:
"There are various observations to be made regarding the trial judge's above comments, but the principal one is that, with respect, he has confused the two separate roles of judge and jury (or, where there is no jury, that of the judge in his capacity as trier of fact) in a negligence case. A clear, succinct and correct statement of those two separate roles and the applicable law is found in the text "The Law of Evidence in Civil Cases" (Sopinka and Lederman) at p. 521:
"An important part of the division of roles between judge and jury is the assessment of the probative sufficiency of the evidence adduced by a party to establish his case. If a Plaintiff fails to lead sufficient material evidence, he may be faced at the close of his case by a motion for a non-suit by the Defendants. If such a motion is launched, it is the judge's function to determine whether any facts have been established by the Plaintiff from which liability, if it is in issue, may be inferred. It is the jury's duty to say whether, from those facts when submitted to it, liability ought to be inferred. The judge, in performing his function, does not decide whether in fact he believes the evidence. He has to decide whether there is enough evidence, if left uncontradicted, to satisfy a reasonable man. He must conclude whether a reasonable jury could find in the Plaintiff's favour if it believed the evidence given in trial up to that point. The judge does not decide whether the jury will accept the evidence, but whether the inference that the Plaintiff seeks in his favour could be drawn from the evidence adduced, if the jury chose to accept it. This decision of the judge on the sufficiency of evidence is a question of law; he is not ruling upon the weight or the believability of the evidence which is a question of fact. Because it is a question of law, the judge's assessment of the probative sufficiency of the Plaintiff's evidence, or the Defendants's evidence on a counter-claim for that matter, is subject to review by the Court of Appeal.
If the Plaintiff has failed to prove a prima facie case in his evidence in chief and the Defendants brings a successful non-suit motion, then the Plaintiff's action will be dismissed." [Emphasis added]
[75] At paragraph 10, the Court described the issue before it in the following terms:
10. The situation here is sufficiently analogous to that of a motion for non-suit that the Court will not weigh the evidence but determine 'whether the inference that the Plaintiffs seeks in their favour could be drawn from the evidence adduced'.
[76] I agree with the submissions of the Defendant that in the present case, the basis for dismissing the claim is stronger than that prevailing in 351994 Canada Ltd., supra. In that case, there was some evidence before the Court dealing with the limitation issues. The Court had to decide if that evidence was sufficient to overcome the limitation defence that was raised by the Defendant. It decided that it was not and allowed the motion for dismissing the part of the plaintiff's claim that involved the limitation period.
[77] Here, there was no evidence from the Plaintiffs. They failed to discharge their evidentiary burden to establish, on a balance of probabilities, that their constitutional right to freedom of religion has been breached.
[78] In the absence of any evidence, the Defendant's motion was granted and the action was dismissed.
[79] As noted above, the Plaintiffs are not unfamiliar with judicial proceedings. Contrary to their protestations of being disadvantaged by lack of resources and research, they have demonstrated some capacity to participate in the litigation process. However, their interests seem to lie in delaying that process, rather than moving on to a resolution. Reference to the decision of the Ontario Court of Appeal in R. v. Tucker et al. (1992), 56 O.A.C. 36, shows that this tendency is not new, as appears from page 42:
These appellants are no strangers to the courts. They take umbrage with every judge who does not agree with them. However, to the best of my knowledge, there has been no action initiated against either Tarnopolsky, J.A., or myself. Extensive research unearthed an application in the Federal Court of Canada by the appellants Walter Tucker and Baldasaro and by The Assembly of the Church of the Universe against numerous respondents including "The Supreme Court of Ontario (Appeal Division)". The suit appears to be against every court and government official who had even the remotest connection with litigation the applicants had with Steetley Industries Limited. Complaint is made about my conduct and that of numerous of my brother judges, but I am not a party to the application. This application was dismissed by The Honourable Mr. Justice Rouleau of the Federal Court of Canada on April 27, 1992. ...
[80] In the present case, the Plaintiffs, in particular the Plaintiff Brother Baldasaro made unjustified and unsubstantiated comments about the Defendant and her counsel. These remarks were improper and unfair, and should not pass without comment.
[81] The Defendant, like any party in this Court, is entitled to respectful treatment from an opposing party. The same respect is due to her counsel.
[82] Similarly, the Plaintiffs, again in particular the Plaintiff Brother Baldasaro, commented about the impartiality of this Court, in response to this Court's refusals of their requests for an adjournment and reinstatement of that part of their claim that had been dismissed by Justice Gibson.
[83] The question of costs was reserved. If the parties are unable to agree, they may make submissions, the Defendant's submissions to be served and filed within seven (7) days of the date of these reasons, the Plaintiffs' reply to be served and filed within five (5) days of receipt of the Defendant's submissions and the Defendant may make a brief reply, if desired, by January 7, 2005.
"E. Heneghan"
J.F.C.
OTTAWA, ONTARIO
DECEMBER 10, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1805-98
STYLE OF CAUSE: REVEREND BROTHER TUCKER
REVEREND BROTHER BALDASARO
v.
HER MAJESTY THE QUEEN
PLACE OF HEARING: HAMILTON, ONTARIO
DATE OF HEARING: NOVEMBER 29,2004
REASONS FOR ORDER AND
ORDER: THE HONOURABLE MADAM JUSTICE
HENEGHAN
DATED: DECEMBER 10, 2004
APPEARANCES:
REVEREND BROTHER WALTER A.TUCKER
REVEREND BROTHER MICHAEL J. BALDASARO FOR PLAINTIFFS
MR. JAMES GORHAM
MR. CHRISTOPHER LEAFLOOR
MS. ANDREA HORTON FOR DEFENDANT
REVEREND BROTHER WALTER A.TUCKER
REVEREND BROTHER MICHAEL J. BALDASARO
HAMILTON, ONTARIO FOR PLAINTIFFS
MORRIS ROSENBERG
DEPUTY ATTORNEY GENERAL OF CANADA
TORONTO, ONTARIO FOR DEFENDANT
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