Bennett v. Canada (Attorney General), 2013 FCA 161

Date: 20130619

Docket: A-86-12

Citation: 2013 FCA 161

CORAM:       TRUDEL J.A.

                        STRATAS J.A.

                        MAINVILLE J.A.

BETWEEN:

CHRISTOPHER BENNETT

Appellant

and

THE ATTORNEY GENERAL FOR CANADA

and THE MINISTER OF HEALTH FOR CANADA

Respondents

Heard at Vancouver, B ritish Columbia, on May 15, 2013.

Judgment delivered at Ottawa, Ontario, on June 19, 2013.

REASONS FOR JUDGMENT BY:                                                                           THE COURT

Date: 20130619

Docket: A-86-12

Citation: 2013 FCA 161

CORAM:       TRUDEL J.A.

                        STRATAS J.A.

                        MAINVILLE J.A.

BETWEEN:

CHRISTOPHER BENNETT

Appellant

and

THE ATTORNEY GENERAL FOR CANADA

and THE MINISTER OF HEALTH FOR CANADA

Respondents

REASONS FOR JUDGMENT OF THE COURT

[1]               This is an appeal from the judgment dated November 15, 2011 of the Federal Court (per Shore J.): 2011 FC 1310.

[2]               The Federal Court judge copied, without attribution, 144 of 152 paragraphs of his reasons for judgment from the respondents’ memorandum of fact and law. In this Court, the appellant invokes this as one of his grounds of appeal.

[3]               Soon after the hearing of this appeal, the Supreme Court of Canada gave direction on when that sort of practice will vitiate a judgment: Cojocaru v. British Columbia Women’s Hospital and Health Centre, 2013 SCC 30. We invited the parties to offer written submissions on Cojocaru. We have received and considered those submissions.

[4]               In the circumstances, we need not deal with that ground of appeal. The appeal must be allowed on another ground.

[5]               In this case, a key issue is whether the appellant’s beliefs and activities concerning cannabis constitute a religious practice protected by the guarantee of freedom of religion under subsection 2(a) of the Charter, as opposed to a secular practice or lifestyle choice.

[6]               The reasons for judgment show conflicting factual findings on that key issue. At the beginning of his reasons, the judge writes, as original prose, that “[i]t is not for a Court to affirm or deny a revelatory experience,” suggesting some acceptance that there was some element of spirituality or spiritual epiphany surrounding the appellant’s beliefs and activities: Reasons, paragraph 1. Later, however, the judge reproduces, as copied prose, that the appellant’s beliefs and activities were matters of “lifestyle” and “secular lifestyle choice[s]”: Ibid., paragraphs 46 and 95.

[7]               We exercise our discretion against resolving these conflicting factual findings ourselves. Accordingly, we would allow the appeal, set aside the judgment of the Federal Court, and remit this matter to the Chief Justice of the Federal Court for assignment to a different judge of the Federal Court. That judge is to redetermine this matter on the basis of the existing evidentiary record, or for redetermination on the basis of this record and such additional evidence as the judge, in her or his discretion, may admit. In the circumstances, there shall be no costs here and below.

"Johanne Trudel"

"David Stratas"

"Robert M. Mainville"

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                                             A-86-12

APPEAL FROM A JUDGMENT OF THE HONOURABLE MR. JUSTICE SHORE DATED NOVEMBER 15, 2011, NO. T-1073-09

STYLE OF CAUSE:                                                            Christopher Bennett v. The Attorney General for Canada et al.

PLACE OF HEARING:                                                      Vancouver, British Columbia

DATE OF HEARING:                                                        May 15, 2013

REASONS FOR JUDGMENT BY THE COURT:          Trudel, Stratas and Mainville, JJ.A.   

DATED:                                                                                June 19, 2013

APPEARANCES:

SOLICITORS OF RECORD: