Tucker et al. v. Canada, (1999) 180 F.T.R. 263 (TD)

• Judge: Sharlow, J.
• Court: Federal Court (Canada)
• Case Date: November 01, 1999
• Jurisdiction: Canada (Federal)
• Citations: (1999), 180 F.T.R. 263 (TD)

Tucker v. Can. (1999), 180 F.T.R. 263 (TD)

MLB headnote and full text

Temp. Cite: [2000] F.T.R. TBEd. FE.033

Reverend Brother Walter A. Tucker and Reverend Brother Michael J. Baldasaro (plaintiffs/respondents) v. Her Majesty the Queen (applicant/defendant)

(T-1805-98)

Indexed As: Tucker et al. v. Canada

Federal Court of Canada

Trial Division

Sharlow, J.

December 13, 1999.

Summary:

The plaintiffs sued for a declaration that the provisions of the Controlled Drugs and Substances Act infringed their right to free­dom of conscience and religion under the Charter, and that the provi­sions were void. The Crown moved to strike the action.

The Federal Court of Canada, Trial Divi­sion, dismissed the motion.

Editor's note: see 161 F.T.R. 108 for a related deci­sion.

Civil Rights - Topic 8504

Canadian Charter of Rights and Freedoms - Enforcement - Jurisdiction - The plain­tiffs sued for a declaration that the provi­sions of the Controlled Drugs and Sub­stances Act infringed their Charter right to freedom of religion - Use of marijuana was a tenet of their religion - The Crown moved to strike the action, arguing that 1) the court lacked jurisdiction to grant the remedy, 2) the plaintiffs lacked standing because they had not been affected by the legislation, and 3) there had been no actual violation of the plaintiffs' rights - The Federal Court of Canada, Trial Divi­sion, dismissed the motion - There was jurisdic­tion to make the declaration - The plain­tiffs were affected by the legislation be­cause they were denied a religious prac­tice - The plaintiffs were threatened with an imminent violation of their rights.

Civil Rights - Topic 8507

Canadian Charter of Rights and Freedoms - Enforcement - Conditions precedent - [See Civil Rights - Topic 8504 ].

Civil Rights - Topic 8583

Canadian Charter of Rights and Freedoms - Practice - Who may raise Charter issues (incl. standing) - [See Civil Rights - Topic 8504 ].

Courts - Topic 4043

Federal Court of Canada - Jurisdiction - Trial Division - Declaratory relief - The plaintiffs sued for a declaration that the provisions of the Controlled Drugs and Substances Act infringed their Charter right to freedom of religion - The Crown moved to strike the action, arguing that, inter alia, the Federal Court of Canada, Trial Division, did not have jurisdiction to grant the remedy sought in an action, only in a judicial review - The Crown argued that s. 18(3) of the Federal Court Act prohibited declara­tory relief in an action - The court held that it had juris­diction to make a declar­ation in this case because the plain­tiffs were not seek­ing relief from a deci­sion of a federal board, commission or tribunal - Therefore, the procedural limita­tion did not apply.

Cases Noticed:

R. v. Church of Scientology of Toronto and Zaharia (1987), 18 O.A.C. 321; 31 C.C.C.(3d) 449 (C.A.), refd to. [para. 23].

R. v. Baldasaro, [1982] O.J. No. 2033 (C.A.), refd to. [para. 24].

R. v. Hamon (R.) (1993), 58 Q.A.C. 241; 85 C.C.C.(3d) 490 (C.A.), leave to appeal refused (1994), 167 N.R. 239; 62 Q.A.C. 139 (S.C.C.), refd to. [para. 26].

R. v. Malmo-Levine (D.) et al., [1998] B.C.T.C. Uned. 961 (S.C.), refd to. [para. 26].

R. v. Hunter (I.F.), [1997] B.C.T.C. Uned. 782 (S.C.), refd to. [para. 26].

R. v. Clay (C.J.) and Prentice (J.K.) (1997), 39 O.T.C. 81; 9 C.R.(5th) 349 (Gen. Div.), refd to. [para. 26].

R. v. Parker (1997), 12 C.R.(5th) 251 (Ont. Prov. Ct.), refd to. [para. 27].

Wakeford v. Canada (1998), 76 O.T.C. 1; 173 D.L.R.(4th) 726 (Gen. Div.), refd to. [para. 27].

Statutes Noticed:

Federal Court Act, R.S.C. 1985, c. F-7, sect. 18(1); sect. 18(3) [para. 14].

Counsel:

Reverand Brother Walter A. Tucker and Reverand Brother Michael J. Baldasaro, on their own behalf;

Casandra Kirewskie, for the Crown.

Solicitors of Record:

Morris Rosenberg, Deputy Attorney Gen­eral of Canada, Ottawa, Ontario, for the defendant.

This motion was heard on November 1, 1999, in Toronto, Ontario, before Sharlow, J., of the Federal Court of Canada, Trial Division, who delivered the following judg­ment on December 13, 1999.