Date: 19981204
Docket: T-1805-98, T-1806-98, T-1807-98
BETWEEN:
REVEREND BROTHER WALTER A. TUCKER and REVEREND BROTHER MICHAEL J. BALDASARO
Plaintiffs
-and
HER MAJESTY THE QUEEN
DeLndant
REASONS FOR ORDER AND ORDER
GILES, A.S.P.
[1] By the motions before me, the Crown sought to strike as disclosing no cause of action, three separate statements of claim in actions brought by the same plaintiffs. The motions were originally brought in writing and at the request of the plaintiffs were ordered heard orally, and were also ordered heard together. The Crown sought to strike on the grounds that the plaintiffs did not have standing in any of the actions. To supplement those grounds, the Crown also indicated that none of the claims disclosed a cause of action.
[2] The actions are: T-1805-98, seeking a declaration that Controlled Drugs and Substances Act is unconstitutional and ultra vires (the "Drug Action").
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[3] File T-1806-98, seeking a declaration that Canada Elections Act, section 50(1)(a) is unconstitutional and ultra vires (the "Election Action") and File T-1807-98 seeking a declaration that Bill C-68 Firearms Act is unconstitutional and ultra vires (the "Guns Action").
[4] The defendant argues that the plaintiffs do not have a direct interest because they are
'lot ü`11medlatety affected by the lel- siation "and ?n the (vase of tin Action because .t, ût least partially, is not in force). If that is the case then, argues the Crown, the only way the plaintiffs could have standing would be to show: 1 - there is a serious issue to be tried; 2 - that they were directly affected or had genuine interest; and 3 - that there is no other more reasonable or effective way in which the issue could be brought to Trial.
[5] Dealing first with the Drug Action, and initially with the matter of direct interest. The plaintiffs allege they are Canadian citizens and ministers of the Assembly of the Church of the Universe who use cannabis, et al, in their daily lives on the advice of God. There is no allegation of a present charge of breach of the subject act, although the plaintiffs offered evidence of prior convictions.
[6] A motion to strike for.failing to disclose a reasonable cause of action is by the Rules decided with reference to the pleadings and without hearing any evidence (Rule 221(2)). For the purposes of a motion such as this I am required to assume as true all the facts that are pleaded in the Statement of Claim. In paragraph 2 of the Statement of Claim the plaintiffs
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allege they use cannabis and other substances in their daily life. That being necessarily assumed to be the case, I consider it as self evident the plaintiffs have a direct personal interest in challenging the validity of the legislation as persons whose conduct is threatened by the legislation. This is not a case where the plaintiffs are of the general public whose common law right to freedom of control is being infringed. This is a case where the plaintiffs' religious rights are alleged to be threatened.
[7] If I am wrong, and it is necessary for the plaintiffs to qualify for public interest standing I note the test requires that there be a serious issue, that the plaintiffs are directly affected or threatened, or have a genuine interest in the invalidity of the legislation, that there be no other and more reasonable and effective way to bring the matter before the Court.
[8] The Crown has cited a number of cases involving cannabis in which various constitutional arguments have -been made. That would indicate that matters concerning cannabis could be an issue. The Crown in argument advised that there were many involving religion, but cited none, possibly because evidence on this type of motion is not permissible. I have not noted any such cases and consider the constitutionality of legislation controlling cannabis in the face of religious requirement is a possibly serious issue. That the plaintiffs have a genuine interest I have indicated above. There is no one else alleged to have religious grounds to challenge the legislation I would therefore be prepared to grant the plaintiffs standing should it be necessary.
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[9] The Crown alleged that all the impugned Act was not in force and as the plaintiffs did not impugn specific sections of the Act, they could be attempting to impugn sections not in force. I note that at least sixty sections have been proclaimed enforced and as the citator says so many of the regulations have been stated amended, withdrawn, and repromulgated, a perusal of the Gazette would be necessary to determine whether any regulations affecting cannabis were not in force.
[10] The Crown has cited cases in support of denial of standing on the grounds of unnecessary expenditure of valuable judicial time. With due humility I decline to waste my time determining what parts of the legislation are not in force. Should the Crown wish to rely on such facts it should specify them. Whether it can do so in a motion allowing no evidence I am not prepared to decide at this time. In any event, they did not do so at the hearing.
[11] The Statement of Claim itself is completely imprecise. It mixes, for instance, the section numbers of the Charter, and the section numbers of what was the British North America Act. The plaintiffs have claimed the violation of their rights under a large number of sections. I take as an example section 26. Section 26 of the Constitution Act, 1867 (BNA Act) deals with adding four or eight members to the Senate. Section 26 of the Charter provides that the guarantees in the Charter shall not be construed as denying the other rights and freedoms that exist. That section does not purport to protect our pre-existing rights from legislation other than the Charter. The relevance of the number 26 is lost to me. There are a
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large number of other sections, similarly cited, but no facts alleged to show how they might entitled the plaintiffs to the relief claimed.
[12] - In my view the Statement of Claim fails to disclose a reasonable cause of action and will be struck out, but because 1 am not convinced that it is plain and obvious that there is no cause of action I will strike with leave to file an amended claim before January 10, 1999.
[13] File T-1806-98 > seeks a declaration that the Canada Elections Act s.50(1) is unconstitutional and ultra vices in that it violates the plaintiffs' rights. The claim cites several sections of the Charter but fails to indicate in what way each section might be relevant. In oral argument the plaintiffs indicated that the right of theirs they claim to be infringed is the right to be voted for by persons under 18 years of age. This is, first of all, not a right but a benefit which might accrue from someone else's right to vote. The plaintiffs are not affected in any differently from anyone else in the population who cares to run for office. I find that the plaintiffs do not have standing to bring the action.
[14] The statement of claim is struck out and the action dismissed.
[15] File T-1807-98 seeks a declaration that the Firearms Act is unconstitutional and ultra
vices. It violates, infringes and denies the principles of fundamental justice. The plaintiffs cite sections of the Canadian Bill of Rights, Magna Carta, and what they describe as the
Charter of Rights and Freedoms, 1867 - 1998. The sections therein cited indicate that both
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the Charter of'Rights and Freedoms and the original BNA Act are invoked. The rights referred to in the Canadian Bill of Rights and Magna Carta are some of the rights mentioned in section 26 of the Charter of Rights and Freedoms. That section provides that the Charter shall not be interpreted to deny the existence of such rights, but it does nothing to entrench them (that is to preserve them from ordinary legislation amending or revoking them).
s, l 6] Assllminf; that our Constitution, at least in sloe common law provinces. has been correctly expressed by the poet "ancient rite unnoticed as the breath we. draw, the right to live by no man's leave underneath the law", it can e plainly seen that one would have the right to bear arms or eat mushrooms until denied the right to do so by law. If the Charter does not . specifically protect them, there is nothing to prevent a government with the jurisdiction to do so from removing those rights. When a government purports to remove such rights, every one of us is affected._ but only those specifically affected have the standing to bring an action, or more likely challenge the legislation defending an action brought by the controlling government.
[17] The plaintiffs here allege no special interest which would give them standing nor do they allege any of the prerequisites to public interest standing. The Statement of Claim in the Guns Action will be struck as disclosing no cause of action and the action is dismissed.
ORDER
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1. The Statement of Claim in action T-1805-98 is struck out as disclosing no cause of action, with leave to amend on or before January 8, 1999.
?. The Statement of Claim in action T-1806-98 is struck out and the action is dismissed.
3. The Statement of Claim in action T-1807-98 is struck out and the action is dismissed.
"Peter A.K. Giles"
A.S.P.
TORONTO, ONTARIO December 4, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: STYLE OF CAUSE:
T-1805-98, T-1806-98, T-1807-98
REVEREND BROTHER WALTER A. TUCKER and REVEREND BROTHER MICHAEL J. BALDASARO
- and -
HER MAJESTY THE QUEEN
DATE OF HEARING: PLACE OF HEARING: REASONS FOR ORDER BY: DATED:
APPEARANCES:
MONDAY, NOVEMBER 9, 1998
TORONTO, ONTARIO
GILES, A.S.P.
FRIDAY, DECEMBER 4.1998
Reverend Brother Walter A. Tucker and Reverend Brother Michael J. Baldasaro
For the Plaintiffs
Ms. Ann Margaret Oberst
For the Defendant
SOLICITORS OF RECORD:
Reverend Brother Walter A. Tucker and Reverend Brother Michael J. Baldasaro Sanctuary - Church of the Universe 401 Eagle Street, North
Cambridge, Ontario N3H 1C1
For the Plaintiffs
Morris Rosenberg
Deputy Attorney General of Canada
For the Defendant