Tucker et al. v. Canada, 2003 FC 1008

• Judge: Gibson, J.
• Court: Federal Court (Canada)
• Case Date: June 23, 2003
• Jurisdiction: Canada (Federal)
• Citations: 2003 FC 1008;(2003), 239 F.T.R. 81 (FC)

Tucker v. Can. (2003), 239 F.T.R. 81 (FC)

MLB headnote and full text

Temp. Cite: [2003] F.T.R. TBEd. SE.012

Reverend Brother Michael Baldasaro and Reverend Brother Walter Tucker (plaintiffs) v. Her Majesty the Queen (defendant)

(T-1805-98; 2003 FC 1008)

Indexed As: Tucker et al. v. Canada

Federal Court

Gibson, J.

August 29, 2003.

Summary:

The plaintiffs claimed that their use of marijuana constituted a religious practice protected by s. 2(a) of the Charter. The plaintiffs sought a declaration that the prohibition on marijuana production, use and trafficking in the Controlled Drugs and Substances Act violated their Charter rights and should be declared to be of no force and effect. The Crown sought summary judgment to have the action dismissed.

The Federal Court granted the Crown's motion in all respects except as to the plaintiffs' claim for relief against the application of the Controlled Drugs and Substances Act as it pertained to their possession and cultivation of marijuana or the "tree of life" for their personal use as or in support of a sacrament in their religious worship, on the particular facts of this matter. The court stated that the latter claim should proceed to trial or other final disposition.

Civil Rights - Topic 382

Freedom of conscience and religion - Infringement of - What constitutes - The plaintiffs claimed that their use of marijuana constituted a religious practice protected by s. 2(a) of the Charter and sought declaratory relief respecting the prohibition on marijuana production, use and trafficking in the Controlled Drugs and Substances Act - The Crown moved for summary judgment dismissing the action - The Federal Court granted the Crown's motion in all respects except as to the plaintiffs' claim for relief against the application of the Controlled Drugs and Substances Act as it pertained to their possession and cultivation of marijuana or the "tree of life" for their personal use as or in support of a sacrament in their religious worship, on the particular facts of this matter - The court stated that the latter claim should proceed to trial or other final disposition.

Courts - Topic 4074

Federal Court of Canada - Jurisdiction - Trial Division - Practice - Summary judgment proceedings - The Federal Court referred to the principles applicable to summary judgment motions under the Federal Court Rules - The court held that in order to grant summary judgment it must be satisfied that the claims in question present no genuine issue for trial or that the issue is so doubtful that it deserves no further consideration - Also, each case must be interpreted in its own context and if the necessary facts cannot be found, or if there are serious issues of credibility, the matter should go to trial - Further, the burden lies with the moving party to establish that there is no genuine issue to be tried, but both parties must "put their best foot forward" to enable the motions judge to decide whether or not there is a genuine issue for trial, and the judge is required to take "a hard look" at the merits and, if possible, make findings of fact and law if the materials allow this - See paragraph 13.

Narcotic Control - Topic 6

General - Legislation - Exemptions - [See Civil Rights - Topic 382 ].

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available - [See Courts - Topic 4074 ].

Practice - Topic 5719

Judgments and orders - Summary judgments - To dismiss action - [See Civil Rights - Topic 382 ].

Cases Noticed:

Froom v. Canada (Minister of Justice) (2003), 303 N.R. 362 (F.C.A.), refd to. [para. 8, footnote 4].

Huang v. Canada (Minister of Citizenship and Immigration), [1999] F.T.R. Uned. 40 (T.D.), refd to. [para. 10, footnote 5].

Apotex Inc. v. Canada et al., [2003] F.T.R. Uned. 263 (T.D.), refd to. [para. 13, footnote 7].

R. v. Edwards Books and Art Ltd. - see R. v. Videoflicks Ltd. et al.

R. v. Videoflicks Ltd. et al., [1986] 2 S.C.R. 713; 71 N.R. 161; 19 O.A.C. 239, refd to. [para. 25, footnote 19].

R. v. Videoflicks Ltd. et al. (1984), 5 O.A.C. 1; 48 O.R.(2d) 395 (C.A.), refd to. [para. 26, footnote 20].

R.B. v. Children's Aid Society of Metropolitan Toronto - see Sheena B., Re.

Sheena B., Re, [1995] 1 S.C.R. 315; 176 N.R. 161; 78 O.A.C. 1, refd to. [para. 27, footnote 21].

Trinity Western University et al. v. College of Teachers (B.C.) et al., [2001] 1 S.C.R. 772; 269 N.R. 1; 151 B.C.A.C. 161; 249 W.A.C. 161, refd to. [para. 28, footnote 22].

R. v. Parker (T.) (2000), 135 O.A.C. 1; 49 O.R.(3d) 481 (C.A.), refd to. [para. 29, footnote 23].

Patriquen v. Commissioner of Corrections (Can.) et al. (2003), 238 F.T.R. 153 (T.D.), refd to. [para. 33, footnote 24].

Counsel:

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

Andrea Horton and James Gorham, for the respondent.

Solicitors of Record:

Morris Rosenberg, Deputy Attorney General of Canada, Toronto, Ontario, for the respondent.

This application was heard at Hamilton, Ontario, on June 23, 2003, by Gibson, J., of the Federal Court, who filed the following decision at Ottawa, Ontario, on August 29, 2003.