Date: 20081015
Docket: T-1430-07
Citation: 2008 FC 1161
Toronto, Ontario, October 15, 2008
PRESENT: Kevin R. Aalto, Esquire, Prothonotary
BETWEEN:
REVEREND EDWIN PEARSON, REVEREND MICHEL
ETHIER and
JAMES ROSCOE HOAD
Plaintiffs
and
HER MAJESTY THE QUEEN
as represented by THE MINISTER OF JUSTICE
OF CANADA,
THE ATTORNEY GENERAL OF CANADA and
THE SOLICITOR GENERAL OF CANADA
Defendants
REASONS FOR ORDER AND ORDER
[1]
For
the individual Plaintiffs and the members of the Assembly of the Church of the
Universe (the “Assembly”) the use of cannabis is an essential element of their
religious services. For years now, many members of the Assembly have struggled
mightily to rid Canada of its criminal prohibitions on the personal
possession and consumption of marijuana. The Assembly alleges that their hopes
and dreams have been realized, and seek damages for what they claim is the
unlawful enforcement of section 4(1) of Controlled Drugs and Substances Act (“CDSA”).
[2]
The
Plaintiffs’ declaration of victory is, however, premature. For the reasons
that follow, I find that Plaintiffs’ claim must be struck.
I. Background
and Procedural History
[3]
The
Assembly, and the class on whose behalf they have brought suit, are all members
of the Assembly. The members of the Assembly are said to be devout adherents
to the belief that cannabis, the “tree of life,” is a sacrament.
[4]
The
Plaintiffs have been engaged in sacramental cannabis use for some period of
time. By their own admission, Revs. Pearson and Ethier have had multiple
encounters with Canada’s criminal justice system in relation to their
drug-related religious observances.
[5]
The
Plaintiffs commenced this action and brought a motion pursuant to former Rule
299.17, now Rule 334.15, of the Federal Courts Rules for certification
as a class proceeding on behalf of all members of the Assembly. The Plaintiffs
claim damages for violation of class members’ rights under the Canadian
Charter of Rights and Freedoms (the “Charter”). The Plaintiffs
allege that since July 31, 2001, the Defendants have been unlawfully enforcing
the CDSA to the manifest injury of the members of the Assembly.
[6]
On
December 7, 2007, the Defendants filed a motion to strike the amended statement
of claim pursuant to Rule 221(1)(a) of the Federal Court Rules. The motion
advances a number of arguments:
1.
The
action is an abuse of process because the alleged improper actions of the
Defendants were the subject of judicial determinations by the Ontario Court of
Justice, the Ontario Superior Court of Justice and the Court of Appeal for Ontario. The
Defendants argue that the Ontario Courts made judicial determinations, either
implicitly or explicitly, that the underlying offence provisions were
constitutionally valid and thus, as the Plaintiffs are seeking to revisit those
decisions, this Court is being asked to sit in appeal of the Ontario Courts.
The Defendants argue that the action therefore constitutes an abuse of process
and should be dismissed.
2.
Alternatively,
the Defendants say that the action is fatally flawed as it is entirely
dependent on an incorrect conclusion of law, viz., that there is no
valid prohibition against the possession of marijuana. Thus, they argue, the
action is doomed to failure and should be struck as disclosing no reasonable
cause of action.
3.
In
the further alternative, the Defendants say that the Plaintiffs have failed to
plead sufficient material facts to sustain an action in misfeasance in public
office or any other cause of action and for that reason must be struck.
[7]
In
responding to the Defendants’ motion to strike, the Plaintiffs raised a number
of preliminary jurisdictional objections with respect to the powers of Prothonotaries
vis-à-vis class proceedings, and in respect of the value of the damages sought
by the Plaintiffs. On January 17, 2008, I issued reasons rejecting the
Plaintiffs jurisdictional objections, finding that Prothonotaries may dispose
of motions to strike in relation to proposed class proceedings, and motions to
strike in actions where the claimed damages are in excess of $50,000 (see Pearson
v. Canada, 2008 FC 62).
II. Issues
to be Determined
[8]
In
my reasons on the preliminary jurisdictional matters, I noted that addressing
the merits of the present motion requires determining three issues:
1.
Does
the action constitute an abuse of process because it requires this Court to sit
in appeal of prior determinations made in the Ontario Courts with respect to
the constitutional validity of the provisions of the CDSA?
2.
Should
the claim be struck in its entirety under Rule 221(1)(a) of the Rules without
leave to amend and the action be dismissed because it fails to disclose a
reasonable cause of action?
3.
Should
the claim be struck in its entirety under Rule 221(1)(c) and (f) of the Rules
without leave to amend and the action be dismissed because it is frivolous and
vexatious?
[9]
At
the hearing on the merits of the present motion, the parties were in agreement
that adjudicating the present motion requires answering a single question:
In light of the existing jurisprudence,
does section 4(1) of the CDSA remain an enforceable law in Canada?
The parties
conceded that if the answer to this question was yes then this class action had
no chance of success and should be dismissed. For the reasons that follow I
conclude that section 4(1) of the CDSA remains an enforceable law in Canada.
III. Section
4(1) of the CDSA: The Battles Won and Lost
[10]
From
the outset it must be noted that the Plaintiffs are not challenging the
constitutionality of section 4 of the CDSA. Rather, the core of the position
advanced by the Plaintiffs is that the decisions of other courts have rendered
section 4(1) of the CDSA of no force and effect within the meaning of section
52 of the Constitution Act, 1982. For their part, the Defendants argue
that section 4 of the CDSA has been adjudged as constitutional.
[11]
Attacks
on the constitutionality of the marijuana possession law as codified in section
4(1) of the CDSA have, to date, proceeded on two primary grounds. The first
has been that section 4(1) unconstitutionally denies marijuana to those who
require it for medical reasons. The second is that prohibiting the personal
possession and use of marijuana offends broader societal norms, such as respect
for personal autonomy. In this respect, it is argued that the absence of any
harm in the possession and consumption of marijuana offends the principles of
fundamental justice under section 7 of the Charter.
IV. The
Medical Marijuana Cases
[12]
In
R. v. Parker (2000), 49 O.R. (3d) 481, the Ontario Court of Appeal held
that section 4(1) of the CDSA offended section 7 of the Charter to the
degree that it prevented personal possession and use of marijuana by those who
have a medical condition that necessitates the use of marijuana. The court in Parker
suspended its declaration of invalidity of section 4 of the CDSA for a one year
period expiring on July 31, 2001, in order to give the government time to put
into place measures to ensure access to marijuana by those with a medically
established need.
[13]
On
July 30, 2001, the Governor-in-Council promulgated the Marihuana Medical
Access Regulations, SOR/2001-227 (MMAR). The MMAR sought to address the
deficiencies in the CDSA by the court in Parker by creating a framework
to ensure that marijuana is available in instances of medical need.
[14]
The
MMAR has been and continues to be the subject of judicial scrutiny. In Hitzig
v. Canada (2003), 231 D.L.R. (4th) 104, the Court of Appeal for Ontario was asked to
evaluate the constitutionality of the MMAR regime. It found certain sections
of the MMAR constitutionally deficient. However, the court in Hitzig rejected calls for a
declaration that section 4 of the CSDA be deemed of no force and effect:
The
Hitzig applicants argue that the appropriate remedy for the constitutional
deficiency in the scheme of medical exemption crafted by the Government is the
declaration granted by Lederman J., namely that the MMAR in their entirety are
constitutionally invalid and of no force or effect. In their cross-appeal they
also seek a declaration that the criminal prohibition against possession in s.
4 of the CDSA is of no force or effect in relation to marihuana. Of course,
without the invalidity of the marihuana prohibition in s. 4, an order declaring
the MMAR to be of no force or effect would leave those in medical need of
marihuana with no way to possess it without criminal sanction.
We
find the remedy contended for by the Hitzig applicants to be overly broad and
inadequately tailored to the constitutional deficiencies in the MMAR. Section
52(1) of the Constitution Act, 1982 requires the court to strike down any law
that is inconsistent with the Constitution, but only "to the extent of the
inconsistency". This invites some precision in selecting a remedy (paras.
154-55).
[15]
Rather
than striking down section 4 of the CDSA, the court in Hitzig declared certain
provisions of the MMAR to be of no force an effect (at para. 176). The general
prohibition on personal possession and use was, therefore, undisturbed by the
ruling in Hitzig.
[16]
In the wake of Hitzig,
amendments to the MMAR were issued by the Governor-in-Council (see
SOR/2003-387). These amendments are the subject of ongoing litigation before
the Federal Court. On January 10, 2008, Deputy Judge Strayer held that certain
post-Hitzig amendments to the MMAR to be unconstitutional (Stefkopoulos
v. Canada (Attorney
General),
2008 FC 33). However, the remedy granted by Deputy Judge Strayer was to find
section 41(b.1) of the MMAR of no force and effect (at para. 25). Deputy Judge
Strayer’s decision was stayed by Chief Justice Richard pending the full hearing
of the appeal before the Federal Court of Appeal (see Canada (Attorney
General) v. Stefkopoulos, 2008 FCA 106). However, nothing in the Stefkopoulos
decision suggests that section 4 of the CDSA is of no force and effect.
[17]
In
sum, while the earlier medical marijuana jurisprudence (Parker, supra)
did challenge the constitutional validity of section 4 of the CDSA, the cases
have shifted in their focus to the operation of the medical marijuana supply
regime codified under the MMAR. And while the skirmishes concerning the MMAR
are ongoing, none of the jurisprudence concerning the MMAR has attacked the
underlying validity of section 4 of the CDSA.
V. Marijuana
and the Societal Principles
[18]
The
second ground of attack against section 4 of the CDSA has been that it offends
certain societal norms that are said to reside within principles of fundamental
justice under section 7 of the Charter. In R. v. Malmo-Levine,
2003 SCC 74, [2003] 3 S.C.R. 571, the Supreme Court upheld the
constitutionality of section 4 of the CDSA. In so doing, the Court rejected
the harm principle as an element of fundamental justice:
Contrary
to the appellants' assertion, we do not think there is a consensus that the
harm principle is the sole justification for criminal prohibition. There is no
doubt that our case law and academic commentary are full of statements about
the criminal law being aimed at conduct that "affects the public", or
that constitutes "a wrong against the public welfare", or is "injurious
to the public", or that "affects the community". No doubt, as
stated, the presence of harm to others may justify legislative action under the
criminal law power. However, we do not think that the absence of proven harm
creates the unqualified barrier to legislative action that the appellants
suggest. On the contrary, the state may sometimes be justified in criminalizing
conduct that is either not harmful (in the sense contemplated by the harm
principle), or that causes harm only to the accused (at para. 115).
[19]
Furthermore,
the Court in Malmo-Levine declined to find that criminalizing the
personal possession or use of marijuana is arbitrary or disproportionate (at
paras. 135 – 183). In a companion case, R. v. Clay, 2003 SCC 75, [2003]
3 S.C.R. 735, the Court also rejected arguments that the CDSA is overbroad or
violates a right to privacy vis-à-vis the personal use of marijuana.
VI. The
Marijuana Jurisprudence and the Plaintiffs Claim
[20]
Where
do these cases leave the Plaintiffs’ claim? The Plaintiffs amended statement
of claim is premised on the notion that the Defendants have obtained
“convictions, the imposition of fines, or both fines and imprisonment against
the Plaintiffs though the prosecution of offences under the CDSA.” (at
para. 11) The Defendants have done so, however, in accordance with a law that
has been upheld by both the Court of Appeal for Ontario and the
Supreme Court of Canada. Therefore, it cannot be said the Defendants
have acted unlawfully.
[21]
The
Plaintiffs point to two other cases, R. v. Long, 2007 ONCJ 340, (2007),
88 O.R. (3d) 146, supplemental reasons 2007 ONCJ 341, (2007), 88 O.R. (3d) 143,
and R. v. Bodnar, [2007] O.J. No. 5215, in support of their argument
that the CDSA is of no force and effect. Neither of these cases supports the
position of the Plaintiffs nor do they support allowing the Plaintiffs’ claim
to proceed.
[22]
Both
Long and Bodnar are decisions of the Ontario Court of Justice.
It is well settled law that the inferior courts of the provinces generally lack
the authority to declare legislation of no general force or effect under
section 52 of the Constitution Act, 1982 (see Shewchuck v. Richard (1986), 28 D.L.R. (4th)
429, 2 B.C.L.R. (2d) 324 (C.A.) cited with approval in Douglas/Kwantlen
Faculty Association v. Douglas College (1990), 77 D.L.R. (4th) 94 at 122,
[1990] 3 S.C.R. 570). As then Chief Justice Nemetz wrote in Shechuck:
It is clear that the power to make
general declarations that enactments of Parliament or of the legislature are
invalid is a high constitutional power which flows from the inherent
jurisdiction of the superior courts.
But it is equally clear that if a person
is before a Court upon a charge, complaint, or other proceeding properly within
the jurisdiction of that Court then the Court is competent to decide that the law
upon which the charge, complaint or proceeding is based is of no force and
effect by reason of the provisions of the Canadian Charter of Rights and
Freedoms, and to dismiss the charge, complaint or proceeding. The making of a
declaration that the law in question is of no force and effect, in that
context, is nothing more than a decision of a legal question properly before
the Court. It does not trench upon the exclusive right of the superior courts
to grant prerogative relief, including general declarations. (at pp. 439-40)
(emphasis mine)
[23]
Indeed,
even Judge Borenstein in Long appreciated his limited power to “declare”
section 4 of the CDSA unconstitutional:
The Crown submits that I have no
jurisdiction to declare s. 4(1) of the C.D.S.A. unconstitutional. I can find it
to be unconstitutional but I cannot declare it to be unconstitutional. My
jurisdiction is to deal with the issues presented in the case before me.
General declaratory powers are the exclusive jurisdiction of the Superior
Courts. (2007 ONCJ 341 at para. 8)
[24]
As
a result, neither Long nor Bodnar are controlling in terms of a general
declaration of invalidity of section 4 of the CDSA under section 52 of the Constitution
Act, 1982.
[25]
The
Plaintiffs in their amended statement of claim, and in their written representations
allege they are seeking to protect their right to exercise their religion
freely. However, they have not, in the context of this proceeding, challenged
the constitutional validity of section 4 of the CDSA. I note that in another proceeding,
the Plaintiffs have made such a claim, but to no avail (see Tucker v.
Canada, 2004 FC 1729).
[26]
In this case, the
Plaintiffs’ amended statement of claim is based upon a fundamentally faulty
premise: that section 4 of the CDSA is of no constitutional force and effect.
However, none of the cases cited by the Plaintiffs support their idyllic view
of the laws governing the personal possession and use of marijuana in Canada. It may very well be
that, on the ethereal plane, the possession and consumption of marijuana is a divine
experience. However, at the present moment, the laws promulgated by the
Parliament of Canada deny the Plaintiffs the sacramental satisfaction they
seek.
[27]
Given this fundamental flaw,
it must be concluded that the Plaintiffs claim discloses no reasonable cause of
action (see generally Canada v. Roitman, 2006 FCA 266) and is bereft of
any chance of success.
[28]
In coming to the conclusion that
this claim should be struck, I have considered all of the allegations in the amended
statement of claim in light of the teachings of the Supreme Court of Canada in Hunt
v. Carey Canada Inc., [1990] 2 S.C.R. 959. Applying the test in Hunt v.
Carey it is plain and obvious that this claim cannot succeed. The claim
must therefore be struck.
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