PRACTICE |
Judgments and Orders |
Summary Judgment |
Baldasaro v. Canada
T-1805-98
2003 FC 1008, Gibson J.
29/8/03
25 pp.
Motion for summary judgment dismissing action on grounds plaintiffs have not raised genuine issue for trial by claiming their use of marijuana constitutes religious practice protected by Charter, s. 2(a) and constitutes breach of Controlled Drugs and Substances Act--Plaintiffs sought to file two supplementary affidavits purporting to be commissio-ned on May 4, 2003--Well beyond time provided by order of this Court for filing of plaintiffs' affidavit material on this motion--Plaintiffs well aware of issue but urged Court that they should be afforded special treatment as "minister[s] of the church"--Role as ministers of church afforded them no special status such as that of commissioners for oaths-- Accordingly, no weight given to affidavits--Appropriate test for summary judgment summarized in Apotex Inc. v. Canada (2003), 25 C.P.R. (4th) 479 (F.C.T.D.)--Whether material properly before Court presents genuine issue for trial, on basis of freedom of religion, in relation to possession, production, trafficking, including importation and exportation, of marijuana, and whether issue so doubtful that it deserves no further consideration--Counsel for defendant put before Court transcripts of examination for discovery of plaintiffs--Based upon those transcripts of examination discovery, plaintiffs sincerely believe marijuana or, as they prefer, "the tree of life", sacrament to them and in their church--It facilitates their communication with God, their peacefulness and their openness to God and to other persons--With regard to plaintiffs' action based upon freedom of religion, plaintiffs' claim to be exempt from provisions of Controlled Drugs and Substances Act as it relates to dissemination of marijuana presents no genuine issue for trial or, in alternative, so doubtful that it deserves no further consideration--In all other respects, defendant has failed to meet burden to establish no genuine issue for trial or success so doubtful matter deserves no further consideration--With regard to cultivation and dissemination, evidence of plaintiffs, at best, marginal-- Against such evidence, clear interest of public at large far outweighs interests of plaintiffs in being able to cultivate and disseminate marijuana, for donation or reward, to support their own religious belief and practices and those of adherents to their church--Defendant's motion granted in all respects except as to plaintiff's claim for relief against application of Controlled Drugs and Substances Act as it pertains to their possession and cultivation of marijuana or "tree of life" for their personal use as or in support of sacrament in their religious worship, on particular facts of this matter--Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44] s. 2(a)-- Controlled Drugs and Substances Act, S.C. 1996, c. 19.