Date: 19991213
Docket: T-1805-98
Toronto, Ontario, the 13th day of December 1999
PRESENT: The Honourable Madame Justice Sharlow
BETWEEN:
REVEREND BROTHER WALTER A. TUCKER and
REVEREND BROTHER MICHAEL J. BALDASARO
Plaintiffs
- and -
HER MAJESTY THE QUEEN
Defendant
ORDER AND REASONS FOR ORDER
[1] In the amended statement of claim, the Plaintiffs allege that they are ministers of the Assembly of the Church of the Universe, that the use of cannabis or marijuana is a tenet of their religion, that the Plaintiffs have in the past been charged with offences related to cannabis, and that they are at risk of being charged in the future. They seek a declaration that the provisions of the Controlled Drugs and Substances Act pertaining to cannabis, marijuana and certain other substances are unconstitutional, and for an order declaring those provisions to be void.
[2] The Plaintiffs cite numerous sections in the Canadian Charter of Rights and Freedoms but for present purposes it is sufficient to say that they rely on sections 1 and 2(a), which read as follows:
| 1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. |
| 2. Everyone has the following fundamental freedoms: |
| (a) freedom of conscience and religion [...]. |
[3] The Crown applies to strike the action on the basis that the Court lacks jurisdiction to grant the remedies claimed, the Plaintiffs lack standing, and the amended claim does not disclose a reasonable cause of action.
[4] This is the second motion to strike filed by the Crown. The first was heard by the Associate Senior Prothonotary on December 4, 1998 in relation to the original statement of claim. He concluded that if the Plaintiffs' allegations in that document were true, which he was obliged to assume for purposes of the motion, they would be sufficient to establish the claim.
[5] However, he noted a number of errors and inconsistencies in the statement of claim. He allowed the motion to strike for failure to disclose a reasonable cause of action, with leave to file an amended statement of claim. The amended statement of claim was filed and is the subject of this application to strike.
[6] On July 6, 1999, the Plaintiff brought a number of motions, including a motion to have this matter set down for trial. Those motions were heard by Reed J. on July 19, 1999. Counsel for the Crown appeared, as did the Plaintiffs.
[7] As a result of the hearing the motions were adjourned pending a determination of a motion to be made by the Crown to strike the amended statement of claim. By order of Reed J. dated July 19, 1999, the Crown's motion to strike was required to be filed by July 30, 1999.
[8] The Crown's motion to strike was filed on September 7, 1999, and included a motion for an extension of time.
[9] The reason given for the failure to file the motion on time was that counsel for the Crown did not understand that Reed J. had set a deadline. Counsel for the Crown had written to the Plaintiffs on July 29, 1999 indicating that she would file the motion by mid-August. She was on vacation until August 10, 1999. When she returned, the written version of Reed J.'s order was not on her desk. Apparently the order had been misfiled, and she did not see it until August 24, 1999.
[10] It is difficult to accept that the order of Reed J. was not stated orally at the conclusion of the hearing on July 19, 1999, or that counsel for the Crown did not hear it. I note from the court file that the proceedings before Reed J. were recorded. It appears that no transcript was ordered. I do not accept the argument of counsel for the Crown that the delay in filing the motion was justified. That would be sufficient to deny the motion to extend the time and the motion to strike.
[11] However, I will also deal with the merits of the motion to strike. This is in deference to the Plaintiffs, as they responded to the motion in two ways. They filed a motion to add additional plaintiffs, and they appeared on November 1, 1999 to fully argue both motions.
[12] There are three grounds for the Crown's motion to strike. The first is that this Court is without jurisdiction to grant the remedies sought.
[13] The Crown characterizes the relief sought in this case as coming within subsection 18(1) of the Federal Court Act. It is argued that pursuant to subsection 18(3), relief described in subsection 18(1) cannot be claimed in an action, but only in an application for judicial review.
[14] Subsections 18(1) and (3) read as follows:
| 18(1) Subsection to section 28, the Trial Division has exclusive original jurisdiction |
| (a) to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus, or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal; and |
| (b) to hear and determine any application or other proceeding for relief in the nature of relief contemplated by paragraph (a), including any proceeding brought against the Attorney General of Canada, to obtain relief against a federal board, commission or other tribunal. |
| 18(3) The remedies provided for in subsections (1) and (2) may be obtained only on an application for judicial review made under section 18.1. |
[15] The problem with this argument is that it is premised on the incorrect characterization of the relief sought. The Plaintiffs are not seeking relief against any federal board, commission or other tribunal. Therefore, the procedural limitation in subsection 18(3) does not apply.
[16] The Plaintiffs also seek interim relief in the form of an order prohibiting the enforcement of the challenged laws against them and members of their church pending the resolution of their claim for declatory relief. The jurisdictional argument of the Crown based on that proposed interim relief is well founded. That may or may not justify striking the portion of the amended statement of claim that refers to the interim relief sought, but it cannot justify striking the entire action.
[17] For these reasons, I conclude that the statement of claim cannot be struck for want of jurisdiction.
[18] The Crown then argues that the Plaintiffs lack standing to challenge the constitutionality of the legislation because they do not claim to have been directly affected by the legislation.
[19] I do not accept this argument. The Plaintiffs are claiming to be directly affected by the legislation. They allege that their religion requires the use of marijuana, and that the challenged legislation creates a risk that they will be prosecuted for using marijuana. Such risk of prosecution makes them afraid to use marijuana and thereby practice their religion. In the context of a motion to strike, I must assume that those allegations are true. On that assumption, I conclude that the Plaintiffs have the requisite standing to challenge the law.
[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 The Queen v. Church of Scientology of Toronto (1987), 31 C.C.C. (3d) 449. In that case, the Ontario Court of Appeal said, at pages 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), 18 C.C.C. (3d) 385, 18 D.L.R. (4th) 321, [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 (l903), 7 C.C.C. 261, 6 O.L.R. 132, 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, [1973] W.W.R. 184, 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, 4 Terr.L.R. 173, 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, 450 O.R. (2d) 348, 36 R.F.L. (2d) 186, 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, 19 D.L.R. (3d) 471, [1971] 3 W.W.R. 365, 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, 139 D.L.R. (3d) 25, [1982] 5 W.W.R. 193, affirmed 21 C.C.C. (3d) 481, 21 D.L.R. (4th) 641, [1985] 2 S.C.R. 332, 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), 47 D.L.R. (3d) 689, [1974] 2 F.C. 465, 5 N.R. 571, 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, [1984] O.J. No. 2033 (QL), 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 (1993), 85 C.C.C. (3d) 490, leave to appeal to SCC refused January 27, 1994; R. v. Malmo-Levine (February 18, 1998), Vancouver CC 970509 (B.C.S.C.); R. v. Caine (April 20,1998), Surrey 65381 (B.C.P.C.); R. v. Hunter (April 14, 1997), Victoria 88807 (B.C.S.C.); R. v. Clay (1997), 39 O.T.C. 81 (Ont. Gen. Div.). In one of those cases, Malmo-Levine, the issue of religious freedom under section 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. P.C.); Wakeford v. Canada (1999), 173 D.L.R. (4th) 726 (Ont. S.C.). 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.
[30] As indicated above, the Plaintiffs' motion to add additional plaintiffs is apparently a response to the Crown's argument that the existing Plaintiffs have not established that they are currently under threat of prosecution under the challenged law.
[31] As I have already determined that the Plaintiffs have the requisite standing and that the threat of prosecution is a sufficient foundation for this action, it may be that this motion is now moot. However, there is nothing to prevent the proposed new plaintiffs from commencing their own actions framed exactly like this one. It seems more appropriate to grant the motion to allow the additional plaintiffs to be added, if the existing Plaintiffs indicate to the Registry, within 30 days of the issuance of this order, that they still wish that to be done. Costs of that motion will be costs in the cause.
Karen R. Sharlow
Judge
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