Bennett v. Canada (Attorney General)

Bennett v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2011-11-15
Neutral citation
2011 FC 1310
File numbers
T-1073-09
Notes
A correction was made on November 29, 2019
Digest
Decision Content
Date: 20111115
Docket: T-1073-09
Citation: 2011 FC 1310
Ottawa, Ontario, November 15, 2011
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
CHRISTOPHER
BENNETT
Applicant
and
THE ATTORNEY GENERAL FOR
CANADA AND THE MINISTER OF
HEALTH FOR CANADA
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
I. Overview
[1] It is not for a Court to deny or affirm a revelatory experience. The revelatory experience exists, in and of itself. It is neither to be denied nor confirmed by law or reason. It exists in a realm of its own, outside the structure and strictures of the outer world by those who live by its essence.
[2] All that can be done is for a court to decide what the law has said and simply to interpret it.
[3] The Government is separated into three branches. The executive branch formulates policy and executes it. The legislative branch formulates the law on behalf of the electorate; and the judiciary is named, not elected, its task is simply to interpret legislation in accordance with the legislation’s formulated intention.
[4] Law is formulated in its intention for the collectivity of individuals, for society as a whole; however, the revelatory experience, which is individualistic, is in its own realm. The law is formulated by the legislative branch for the collectivity, while safeguarding the individual inasmuch as possible, when that is not to the recognized detriment of the collectivity as a whole; and, therefore, the judiciary must not do otherwise, but interpret the collective legislative will, which cannot satisfy every individual.
[5] Therefore, the Supreme Court of Canada has been clear that the courts must still show deference when reviewing discretionary decisions that involve complex weighing of interests even where that weighing involves the assessment of a claimant’s rights under the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, enacted as Schedule B to the Canada Act 1982, (UK) 1982, c 11 [Charter] (Lake v Canada (Minister of Justice), 2008 SCC 23, [2008] 1 SCR 761 at para 34-41).
[6] Since its seminal decision in R v Big M Drug Mart Ltd, [1985] 1 SCR 295, the Supreme Court of Canada has consistently articulated an expansive definition of freedom of conscience and religion, which revolves around the notion of personal choice and individual autonomy (Syndicat Northcrest v Amselem, 2004 SCC 47, [2004] 2 SCR 351 at para 40). As part of that expansive definition, the court has held that claimants who seek to invoke paragraph 2(a) of the Charter need not prove that their beliefs or practices are recognized as valid by other members of their religion (Amselem at para 43; R v Jones, [1986] 2 SCR 284; Multani v Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6, [2006] 1 SCR 256 at para 35).
[7] As was explained by
Justice
Frank
Iacobucci
in Amselem, the reason for this approach is that “judicial determinations of theological or religious disputes, or of contentious matters of religious doctrine, unjustifiably entangle the court in the affairs of religion.” Thus, in requiring courts to accept a claimant’s assertion that a practice is a part of her religion (subject to a limited inquiry into her sincerity), the court in Amselem suggested that it was adopting “a personal or subjective conception of freedom of religion” [Emphasis added] (Amselem at para 50 and 42).
[8] The court in Amselem also held that courts need not accept that a practice is religious (as opposed to non-religious or secular) just because a claimant says so. To the contrary, Justice Iacobucci suggested that an objective inquiry into it is appropriate “since only beliefs, convictions and practices rooted in religion, as opposed to those that are secular, socially based or conscientiously held, are protected by the guarantee of freedom of religion” [Emphasis added] (Amselem at para 39).
II.
Int
r
odu
c
t
i
o n
[9] This judicial review concerns a refusal by the Minister of Health to issue a statutory exemption that would have permitted the Applicant to produce and possess enough marihuana to smoke and/or imbibe seven grams of the drug every day without violating the Controlled Drugs and Substances Act, SC 1996, c 19 [CDSA]. The Applicant, who is a member of the “Church of the Universe,” believes that cannabis is the “tree of life” and states that whenever he smokes marihuana, he does so in a religious way. He argues that, as a result, both the statutory prohibitions on the possession and production of marihuana in sections 4 and 7 of the CDSA and the denial of his Ministerial exemption request violate his rights under sections 2, 7 and 15 of the Charter.
[10] The Applicant’s Charter arguments are dismissed, based on the evidence before the Court, both his practice of smoking seven grams of marihuana per day and the underlying belief that cannabis is the tree of life are secular in nature. They form the basis of a cannabis-centred lifestyle that the Applicant wishes to pursue without interference by the state. The lifestyle choices such as these are not protected by the right to freedom of religion under paragraph 2(a) of the Charter.
[11] Although the threat of imprisonment engages his right to liberty under section 7 of the Charter, the Applicant has failed to establish a corresponding inconsistency with the principles of fundamental justice. The Applicant’s arguments in this regard have been expressly rejected by the Supreme Court of Canada. The Applicant also relies on non corresponding analogies between his desire to smoke marihuana and the needs of seriously ill persons who require access to marihuana for medical reasons and intravenous drug addicts who desire access to safe injection facilities so as to reduce their risk of overdosing or contracting life threatening communicable diseases.
[12] The Applicant has not established any breach of his right to equality under section 15 of the Charter as he has not identified a distinction on an enumerated or analogous ground by which to expose any disadvantage that promotes prejudice or stereotyping.
[13] Any prima facie breach of his Charter rights that the Applicant might establish is demonstrably justifiable under section 1. The objectives pursued by the impugned prohibitions would be undermined if the Applicant were permitted unfettered access to marihuana. When measured against the minimal infringement of the Applicant’s ability to hold and manifest his beliefs, any Charter deprivation caused by the CDSA is both proportional and reasonably justifiable.
III. Background
[14] The Applicant’s life revolves around the use of cannabis (Cross-examination of C. Bennett, AR, Tab G, Q 14). He owns a store in
Vancouver that sells paraphernalia for use in consuming cannabis (among other drug related items) (Qs 223-228). He has worked as the manager of “Pot TV”, a website that streams video programming on subjects relating to cannabis (Qs 283-302). He has acted as a paid judge in cannabis “competitions” around the world (Qs 298-308). He has researched and co-authored three books about the uses of cannabis in various religions throughout history. He is a political activist promoting the industrial uses of cannabis and the legalization of marihuana (Qs 420-451, 964-969), and he is a member of the Church of the Universe, an organization whose central belief is that cannabis is the “tree of life”.
[15] The Applicant began smoking marihuana when he was twelve years old and has been doing so regularly ever since (he is now in his forties). At present, he smokes approximately seven grams of marihuana every day. This is the equivalent of approximately 35 “joints” (reference is made to
P.M.
Brauti and
B.G.
Puddington
, Prosecuting and Defending Drug Offences,
Aurora : Canada Law Book, 2003 at p 373), if smoked rather than ingested or consumed in an alternative manner (however, about the same quantity is used by him on a regular daily basis). It also constitutes more than seven times the amount that the Senate Special Committee on Illegal Drugs considered to be “heavy use” that carries the risk of “negative consequences on the physical, psychological and social well-being of the user” (Cannabis: Our Position for a Canadian Public Policy, Ottawa: Library of Parliament, September 2002, AR, Tab M at p 166).
[16] The Applicant joined the Church of the Universe in 1990 shortly after he had a drug induced epiphany that cannabis was the tree of life (Applicant’s Statutory Declaration). He was given the title of “Reverend” in the Church upon joining, though this did not require him to undertake any special training or to discharge any responsibilities (Q 469). The Applicant asserts that, in accordance with his belief, that cannabis is the tree of life, cannabis itself is the object of his spiritual faith and that every time he uses it (no matter what the context), he does so in a spiritual or religious way (Qs 311, 320-322, 324-329).
[17] The Respondent Minister of Health is statutorily responsible for the promotion and preservation of the physical, mental and social well-being of the people of Canada and for the administration of legislation and regulations that relate to the health of the people of Canada (Department of Health Act, SC 1996, c 8, s 4).
A. The Legal Regulation of Cannabis in Canada
[18] There are two broad classes of cannabis plant varieties: those that contain a high concentration of the psychoactive ingredient delta-9-tetrahydrocannabino [THC] in their leaves and flowering tops (“marihuana”), and those that have a very low content of THC (“hemp”). Marihuana is subject to widespread illicit use (R v Parker (2000), 49 OR (3d) 481 (Ont CA) at para 152), and causes a number of well-documented harms to health and society (reference is made to R v Malmo-Levine; R v Caine, 2003 SCC 74, [2003] 3 SCR 571 at para 40-60, 135-136). Hemp, which is not psychoactive, has several industrial applications, including use in textiles, oil based products and in the pulp and paper industry (Regulatory Impact Analysis Statement, Industrial Hemp Regulations, SOR/98-156, Canada Gazette, Part II, April 1, 1998 [RIAS] at pp 1, 8).
[19] The harmful effects of marihuana, as documented, use include bronchial pulmonary harm, psychomotor impairment leading to a risk of automobile accidents with no simple screening device for detection, possible precipitation of relapse in persons with schizophrenia, possible negative effects on the immune system, possible long-term negative cognitive effects in children whose mothers use marijuana while pregnant, possible long-term negative cognitive effects in long-term users, and some evidence that heavy users may develop a dependency (Parker, above, at para 143).
[20] Canada is a signatory to three United Nations conventions controlling the import, export, distribution and use of illicit drugs, including marihuana (Reference is made to Single Convention on Narcotic Drugs, 1961, as amended by the 1972 Protocol Amending the Single Convention on Narcotic Drugs, 1961; United Nations Convention on Psychotropic Substances, 1971; and, United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988; Affidavit of Jocelyn Kula [Kula Affidavit], AR, Vol 3 at para 5). The aim of the conventions is to combat the abuse and illicit trade in drugs like marihuana and to limit their use to medical and scientific purposes (Hitzig v Canada (2003), 231 DLR (4th) 104 (Ont CA) at para 32).
[21] The CDSA and its regulations are the primary instruments for implementing Canada’s international obligations (Kula Affidavit at para 5). The Act came into force in 1997. It provides for the control of substances that can alter mental processes and that may produce harm to health and to society, especially to vulnerable individuals. Sections 4 and 7 of the Act provide that the possession and production of controlled substances listed in several schedules to the Act is illegal unless authorized by regulation. Cannabis is one of the listed substances.
[22] The CDSA and its regulations offer several ways in which individuals may gain lawful access to cannabis. For example, the Industrial Hemp Regulations provide for a carefully monitored system of licences, permits and authorization that allows for the cultivation, distribution, import, export and processing of industrial hemp.
[23] Under section 67 of the Narcotic Control Regulations, CRC, c 1041, the Minister of Health has the discretion to issue licenses to qualified individuals to cultivate, gather or produce marihuana for scientific purposes on such terms and conditions as the Minister deems necessary.
[24] The Marihuana Medical Access Regulations, SOR/2001-227 [MMAR] provide the means by which individuals can be authorized to produce or possess marihuana for medical purposes. Pursuant to section 6 of the MMAR, applicants must provide a declaration from a medical practitioner that includes the applicant’s medical condition and the symptom associated with the condition or its treatment that is the basis for the application. The medical declaration must also indicate that conventional treatments for the symptom have been tried or considered and have been found to be ineffective or medically inappropriate.
[25] Finally, section 56 of the CDSA vests the Minister with the discretion to “exempt any person or class of persons or any controlled substance or precursor or any class thereof from the application of all or any of the provisions of this Act or the regulations if, in the opinion of the Minister, the exemption is necessary for a medical or scientific purpose or is otherwise in the public interest” (Kula Affidavit at para 5) By way of illustration, the Minister has granted public interest exemptions to law enforcement agencies so that they can produce marihuana for the purpose of training officers involved in drug investigations (Kula Affidavit at para 9).
[26] On four occasions (including the request that precipitated the decision under review in this case) requesters have sought access to a controlled substance in the “public interest” for religious reasons. As with all requests made under section 56, the Minister considered each of these on a case-by-case basis on its own merits (Kula Affidavit at para 11).
B. The Applicant’s Exemption Request
[27] On February 12, 2009, the Applicant’s counsel sent a letter to the Minister in which he asked the Minister to exercise her discretion under section 56 of the CDSA to permit the Applicant to produce and possess enough marihuana to smoke seven grams of the drug per day without violating sections 4 and 7 of the Act. The letter said that the Applicant “uses cannabis for religious and spiritual purposes” and that by preventing him from doing so without the threat of criminal sanction, sections 4 and 7 of the CDSA violate his rights under sections 2, 7 and 15 of the Charter (AR, Vol 1, Tab C).
[28] The letter to the Minister was accompanied by a four-page statutory declaration sworn by the Applicant. In it, the Applicant said that he uses cannabis “religiously” and has done so since 1990 when he had a drug induced epiphany that cannabis was the “Biblical Tree of Life” as mentioned in the Book of Revelation. The Applicant also indicated that he had joined the Church of the Universe because of its “strong foundation of belief in cannabis being the Tree of Life.” (Applicant’s Statutory Declaration).
[29] The Applicant concluded his statutory declaration by indicating that his “daily cannabis consumption is seven (7) grams per day”, (primarily through “inhalation”) and that he was “aware of the potential risks associated with an elevated daily consumption of dried marihuana including risks with respect to the effect on [his] cardiovascular and pulmonary systems and psychomotor performance, risks associated with the long-term use of marihuana, as well as potential drug dependency.”
[30] The Applicant’s request was assessed by Health Canada’s Office of Controlled Substances [OCS].
Ms.
Jocelyn
Kula
, who was then the Manager of the Policy and Regulatory Affairs Division with OCS, co-ordinated the assessment.
Ms.
Kula assigned,
Ms.
Cheryl
Tremblay
, Policy Analyst, to carry out an initial review of the request.
Ms. Tremblay was asked to focus on the Applicant’s claimed right to religious freedom and the manner, if any, in which it was compromised by the CDSA’s prohibition on the possession and production of marihuana (Kula Affidavit at para 21, 23).
[31] During the course of
Ms.
Tremblay ’s review, she and
Ms. Kula discussed the Applicant’s request and concluded that while the Applicant was clearly passionate about the benefits of cannabis to society, his materials did not identify a religious practice or belief that required him to produce enough cannabis so as to consume seven grams of marihuana per day (Kula Affidavit at para 25).
Ms.
Tremblay drafted a proposed response to the Applicant’s request on that basis and, on May 15, 2009,
Ms.
Kula presented the draft response to
Mr.
Ronald
Denault
, the Acting Director of the OCS.
[32]
Mr.
Denault
then independently reviewed the Applicant’s request and concluded that it ought to be refused (Kula Affidavit at para 28-30). On May 29, 2009, Mr. Denault wrote the Applicant’s counsel and indicated that the Minister was unable to grant the requested exemption as its issuance would not be in the public interest (Kula Affidavit at para 31).
C. The “Ayahuasca” Request
[33] In his written arguments, the Applicant makes reference to a section 56 exemption request made by someone other than the Applicant to consume a drug called “ayahuasca.” The Applicant asserts that when ayahuasca is ingested it causes an “extremely potent psychoactive experience,” that the request for an exemption to consume it without running afoul of the CDSA was treated “much more comprehensively” than his own request and that Health Canada developed an interim policy document to guide the ayahuasca request that was not used in the Applicant’s case. These assertions are not supported by the evidentiary record before the Court.
[34] The only evidentiary basis cited by the Applicant in this regard is the cross-examination of
Ms.
Kula
; however, the transcript of that cross-examination reveals that while Ms. Kula was asked many questions about the ayahuasca request, counsel for the respondents repeatedly objected to the vast majority of those questions on the basis of relevance (Cross-examination of Kula Affidavit, AR, Vol 3, Qs 412, 434-436).
[35] The questions that Ms. Kula did answer on the subject were limited to confirming that (1) there was a previous section 56 request by an individual from the Santo Daime Church, which is a Brazilian “syncretic” religion, to consume a tea containing ayahuasca; (2) a decision in that request was still pending; (3) she did not consider the documents from the ayahuasca request to be relevant to the Applicant’s request as each such request is considered on a case by case basis (Qs 224-225), (4) as far as she was aware, the draft “guidance document” that was put to her by the Applicant’s counsel did not play any role in the consideration of the ayahuasca request (or that of the Applicant) (Qs 462-463); and (5) there had been “some back and forth” between officials in Health Canada and the Applicant in the ayahuasca request (Q 743).
D. The Application
[36] This application, which targets the Minister’s refusal of the Applicant’s exemption request, was filed on June 30, 2009. The Applicant is seeking to strike down sections 4 and 7 of the CDSA insofar as they prohibit the possession and production of cannabis. In the alternative, he is seeking an order in the nature of mandamus to require the Minister to issue him a section 56 exemption on the terms set out in the Applicant’s exemption request. In support of his application, the Applicant adduced an affidavit on his own behalf as well as the affidavits of two academics (
Mr.
Carl
Ruck ,
Professor
Thomas
Bradford
Roberts ) and a layperson (
Mr.
Robert
Hunter
). None of these affidavits was before the Minister’s delegate when the impugned decision was made.
IV. Issues
[37] (1) What is the appropriate standard of review in respect of the impugned discretionary decision?
(2) Has the Applicant established a breach of paragraph 2(a), sections 7 or 15 of the Charter? If it is a breach, is it a reasonable limit pursuant to section 1 of the Charter?
(3) If the Applicant were to establish an unjustified breach of his Charter rights, what remedies ought to be ordered?
[38] Having had the opportunity to review the extensive evidence, written and oral arguments, and having discussed and discerned the subject matter in-depth in regard to every key piece of evidence as linked to the legislation and jurisprudence, in each and every argument of the respective parties, subsequently, that analysis has led the Court to decide in the following manner:
The Court agrees with the position of the Respondents that the decision is to be reviewed on a deferential standard of reasonableness;
The Court also fully agrees with the Respondents’ position that the Applicant has not established a breach, and, in any regard, the breach, if one exists, is justified as a reasonable limit pursuant to section 1 of the Charter;
Furthermore, the Court is in complete agreement with the position of the Respondents that an order in the nature of mandamus is unavailable [and, if there were an invalidity (of which there is none), it would be suspended to avoid a lacuna in the law].
V. Analysis
A. Standard of Review
[39] When one applies the standard of review analysis set out by the Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190, to the present case, the conclusion to be drawn is that the Minister’s decision is reviewable on the deferential standard of reasonableness.
[40] Recognizing the separation of powers as specified in the Overview, determining whether or not to exercise the discretion to issue an exemption in the public interest, pursuant to section 56 of the CDSA, requires the Minister to balance a number of complex and competing considerations in respect of which the Minister has the discretion that exceeds that of the courts. The Minister must weigh the benefit, on the one hand of the request against the other hand of the public interests served in limiting access to controlled substances, including protecting the health and safety of the public.
[41] It is for this reason that the courts have reviewed discretionary ministerial decisions made under section 56 with deference (reference is made to Dupuis v Canada (Attorney General), 2004 FC 919 266 FTR 41 at para 24; Paquette v Canada (Attorney General), 2002 FCT 759 at para 3, 24-25).
[42] The fact that the Applicant sought to rely upon his rights under the Charter when he made his section 56 request changes neither the nature of the Minister’s decision nor the applicable standard of review. Courts must still show deference when reviewing discretionary decisions that involve complex weighing of interest even where that weighing involves the assessment of a claimant’s rights under the Charter (Lake, above).
B. Charter Rights not Breach
[43] The Applicant alleges that his inability to produce and possess enough marihuana to smoke seven grams of the drug per day without breaching sections 4 and 7 of the CDSA violates his rights under paragraph 2(a), sections 7 and 15 of the Charter. As the party asserting such violations, the Applicant bears the burden of affirmatively proving each of them (Reference re Marine Transportation Security Regulations, 2009 FCA 234 (CA) at para 28). For the following reasons, he has failed to do so.
(1) No Breach of the Right to Freedom of Religion under paragraph 2(a) of the Charter
[44] In order to establish that his right to freedom of religion under paragraph 2(a) of the Charter has been infringed, the Applicant must demonstrate (1) that he sincerely believes in a practice or belief that has a nexus with religion; and (2) that the impugned conduct interferes, in a manner that is non-trivial or not insubstantial, with his ability to act in accordance with that practice or belief (Multani, above at para 34).
[45] The Applicant has not discharged his burden under this test since he has not shown that his practice of consuming seven grams of marihuana per day has any nexus with religion. While the Applicant has shown that his practice is based on the belief that cannabis is the tree of life, this, in and of itself, does not make it a religious practice.
[46] The Applicant’s evidence discloses no connection between his ongoing marihuana use and any comprehensive system of religion that would meet the definition of religion set out by the Supreme Court of Canada. Rather, the evidence suggests that the Applicant’s ongoing marihuana use is part of a longstanding lifestyle that he wishes to continue pursuing without the possibility of interference by the state. No matter how strong his desire to do so may be, such a lifestyle choice is not protected by the right to freedom of religion under paragraph 2(a) of the Charter.
(a) The Applicant must show a Nexus between his Marihuana Use and Religion
[47] While much of the controlling jurisprudence on the constitutional guarantee of freedom of religion has emphasized the need for judicial deference to claimants’ decisions as to which religious beliefs and practices they may with to adopt, such deference does not extend to the threshold question as to whether a practice or belief has a nexus with an actual religion.
[48] Ascertaining whether putatively religious beliefs or practices have the requisite nexus with religion ensures that paragraph 2(a) of the Charter is not trivialized by permitting individuals to exempt themselves from the operation of laws of general application by simply saying that it is their “religion” not to comply. Whenever the issue has arisen, courts have not hesitated to assess whether a new or unfamiliar practice or belief is truly religious and thus potentially protected by paragraph 2(a). The same scrutiny must be applied to the Applicant’s claim that he must be allowed to smoke seven grams of marihuana every day as he does for religious reasons.
[49] Since its seminal decision in Big M Drug Mart Ltd, above, the Supreme Court of Canada has consistently articulated an expansive definition of freedom of conscience and religion, which revolves around the notion of personal choice and individual autonomy (Amselem, above, at para 40). As part of that expansive definition, the Court has held that claimants who seek to invoke paragraph 2(a) need not prove that their beliefs or practices are recognized as valid by other members of their religion (Amselem at para 43; Jones, above; Multani, above, at para 35).
[50] As was explained by
Justice
Iacobucci
, the reason for this approach is that “judicial determinations of theological or religious disputes, or of contentious matters of religious doctrine, unjustifiably entangle the court in the affairs of religion.” Thus, in requiring courts to accept a claimant’s assertion that a practice is a part of her religion (subject to a limited inquiry into her sincerity), the court in Amselem suggested that it was adopting “a personal or subjective conception of freedom of religion.” (Amselem at para 50 and 42).
[51] The court, in Amselem, also held that courts need not accept that a practice is religious (as opposed to non-religious or secular) just because a claimant says so. To the contrary, Justice Iacobucci suggested that an objective inquiry into the religious nature of practices that are purported to be religious by a claimant is appropriate “since only beliefs, convictions and practices rooted in religion, as opposed to those that are secular, socially based on conscientiously held, are protected by the guarantee of freedom of religion” (Amselem at para 39).
[52] The idea that the courts must inquire into whether an asserted belief is objectively religious is entirely consistent with a personal or subjective conception of freedom of religion since it does not require a court to “entangle [itself] in the affairs of religion”. Rather, it simply means that if (as in the present case) a claimant alleges an interference with his right to freedom of religion, the Court ought to be satisfied that the asserted belief or practice has the requisite nexus with a religion – as opposed to some non-religious philosophy or lifestyle.
[53] In including only religious beliefs and practices within the constitutional guarantee of freedom of religion, the Supreme Court has charted a path similar to that taken by courts in comparable common law jurisdictions such as the United States (United States v Meyers, 906 F Supp 1494 at 1502ff (Wy DC), affm’d 95 F 3d 1475 (10th Circ 1996)); Australia (Church of the New Faith v Commissioner of Pay-Roll Tax (vic) [1983] HCA 40 at para 10); South Africa (G.
Van der Schyff , “The Legal Definition of Religion and its Application,” (2002) 119 S African LJ 288).
[54] Given that the religious character of a particular belief or practice is a requirement for the protection of freedom of religion under paragraph 2(a), the difficult question that then arises is: how can courts separate the religious from the non-religious so as to determine which beliefs and practices are protected and which are not? In answering that question,
Justice
Iacobucci
offered the following guidelines in Amselem:
39 … Defined broadly, religion typically involves a particular and comprehensive system of faith and worship. Religion also tends to involve the belief in a divine, superhuman or controlling power. In essence, religion is about freely and deeply held personal convictions or beliefs connected to an individual’s spiritual faith and integrally linked to one’s self-definition and spiritual fulfilment, the practices of which allow individuals to foster a connection with the divine or with the subject or object of that spiritual faith. [Emphasis added].
[55] The indicia of religion set out by
Justice
Iacobucci
in Amselem are similar to those that have been employed by courts in other common law jurisdictions. Fore example, in Meyers, above, the 10th Circuit Court of Appeals held that in determining whether a putatively religious practice or belief is protected by the First Amendment of the United States Constitution, courts should consider whether it is part of a belief system that:
addresses ultimate ideas…about life, purpose, and death;
contains metaphysical beliefs which transcend the physical and apparent world;
contains a moral and ethical system;
is comprehensive, providing a telos, an overarching array of beliefs that coalesce to provide the believer with answers to many, if not most, of the problems and concerns that confront humans; and
bears the accoutrements of religion in that it will: (a) have a founder or prophet, (b) refer to important writings, (c) define gathering places, (d) have keepers of the religion’s knowledge such as clergy; (e) prescribe rituals and ceremonies; (f) possess a structure or organization; (g) have sacred holidays; (h) prescribe diet or fasting; (i) prescribe appearance and or clothing; and (j) promote the propagation of its beliefs.
(The First Amendment of the United States Constitution provides: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances” [Emphasis added]).
[56] The guidelines for the identification of religion, used in Amselem and Meyers, are consistent with the dictionary definition of the term “religion” in the Oxford English Dictionary, which includes “[a] particular system of faith and worship” and “[b]elief in or acknowledgement of some superhuman power or powers (esp. a god or gods) which is typically manifested in obedience, reverence, and worship; such a belief as part of a system defining a code of living, esp. as a means of achieving spiritual or material improvement” (“religion, n.”. Oxford English Dictionary, Online. November 2010. Oxford University Press. 1 December 2010 <http://www.oed.com/viewdictionaryentry/Entry/161944>).
[57] Despite the fact that the Supreme Court in Amselem endorsed the use of guidelines similar to those used by the Court of Appeals in
Meyers (and the Oxford English Dictionary), it did not go on to explicitly apply them to the practices at issue in that case. This is because there was no question that the religion out of which the practice at issue in Amselem emerged, was a “comprehensive system of faith and worship” involving “belief in a divine, superhuman or controlling power,” etc. As was noted by
Justice
William
Ian
Corneil
Binnie
in dissent (but not on this point), the Court in Amselem was not faced with “a religion of one phenomenon, or a non-traditional claim such as the smoking of peyote as part of a claimed religious experience” [Emphasis in original]. Such claims,
Justice
Binnie
held, “will have to be addressed when they arise” (Amselem at para 189).
[58] Just such a “non-traditional claim” did subsequently arise in R v Welsh, [2007] OJ No 3666 (SCJ). Welsh involved a prosecution in which several of the accused sought to exclude evidence documenting their interactions with an undercover police officer. The officer had played the role of a spiritual advisor known as an Obeah or Obeahman who, among some cultures in the Caribbean Islands, is believed to have the ability to communicate with the spirit world and to influence events in the physical world. While playing the role of Obeahman, the police officer elicited inculpatory statements from the accused and members of their family. The accused sought to exclude the evidence on the basis that it violated their right to freedom of religion under paragraph 2(a) of the Charter.
[59] After canvassing the applicable jurisprudence, beginning with Big M Drug Mart, above, and ending with Amselem, above, the Court in Welsh, above, concluded that “it is not the task of this Court to determine whether or not Obeah is a religion worthy of mainstream recognition; rather, it is necessary only to determine whether the constellation of beliefs and practices for which Obeah is traditionally known are such that they merit consideration under s. 2(a) of the Charter…” (Welsh, above, at para 10).
[60] In order to satisfy that test, the claimants in Welsh called the opinion evidence of four academics, all of whom were qualified as experts in fields related to religious history and experience. The experts opined that Obeah met the criteria of a religious belief system and that the specific beliefs and practices that had been manifested by the undercover police officer were a part of that religion. The court in Welsh concluded that “the evidence of the four experts…clearly and convincingly establish that Obeah is a religious belief system that meets the Supreme Court definition of such in [Amselem] and thus warrants s. 2(a) protection” (Welsh at para 29).
[61] A similar approach was taken more recently by the Court in R v Kharaghani and Styrsky, 2011 ONSC 836. The Kharaghani decision arose in the context of a prosecution for possession and trafficking in cannabis, contrary to sections 4 and 5 of the CDSA. In their defence, the two accused argued that the prohibitions unjustifiably violated their right to freedom of religion under paragraph 2(a) of the Charter.
[62] Like the applicant in this case, the claimants in Kharaghani were both members of the Church of the Universe who believed that smoking marijuana was a religious act. The arguments they deployed were in many ways indistinguishable from those made by the applicant in the present case. After hearing five weeks of evidence, including numerous lay and expert witnesses, the Court rejected the claimants’ constitutional arguments.
[63] The claimants in Kharaghani argued that paragraph 2(a) is triggered whenever an individual has a practice or belief that subjectively offers them a connection with the divine (Kharaghani at para 136). The Crown argued that any such connection must also have an objective nexus with religion in order to be constitutionally protected (Kharaghani at para 138-139).
[64] After reviewing the jurisprudence of the Supreme Court of Canada (including Big M Drug Mart, above, R v Edwards Books and Art Ltd, [1986] 2 SCR 713 and Amselem, above) Justice Thea P. Herman held in Kharaghani: “I agree with the Crown that something more is needed than a connection to God or to the divine in order to fall under s. 2(a). The connection must have a relationship with religion, in that it is part of a belief system that provides a person with a sense of purpose and meaning” [Emphasis added] (Kharaghani at para 190).
[65] In coming to this conclusion, the Court emphasized that “[w]hile the court in Amselem articulated both a broad and a highly-individualized definition, there is a danger in applying the definition too broadly or too loosely. To grant protection under s. 2(a) to anyone who says ‘I believe this’ or ‘I do this because it is my religion’ runs the risk of trivializing the constitutional protection of freedom of religion” (Kharaghani at para 177).
[66] In applying this test to the claimants, Justice Herman held that – on the evidence before her – the claimants’ beliefs in fact fall under paragraph 2(a) of the Charter (Kharaghani at para 193).
[67] The Court in Kharaghani next considered whether the claimants’ beliefs were sincerely held. Justice Herman held that an “in depth” sincerity analysis was called for under the circumstances for several reasons, including the fact that – unlike other religions whose practices involve the consumption of a drug – the drug in this case was the asserted religion (Kharaghani at para 214). In addition, heightened scrutiny was required because (on the evidence before the Court) the Church of the Universe has no rules or guidelines as to the use of cannabis: “no limitations as to when it is used, where it is used, how it is used or how much is used” (Kharaghani at para 214).
Justice
Herman
held that this unregulated use makes it difficult, if not impossible, for a court to distinguish between religious and non-religious use and between religious and non-religious users.
[68] After reviewing the extensive evidence before it, the Court openly questioned “whether the Church of the Universe is a genuine religious institution or is, instead, a parody of religion, with a primary focus on the legalization of cannabis” (Kharaghani at para 339). However, given that the focus was not on the sincerity of the Church per se, but on the individual claimants, the Court went on to conclude that, based on the credibility exhibited by the claimants during their extensive viva voce testimony, the claimants’ personal consumption of marihuana was sincerely religious (Kharaghani at para 340, 345 and 347).
[69] While
Justice
Herman
found – on the evidence before her – that the beliefs and practices of the claimants in Kharaghani had the requisite nexus with religion, that same finding cannot be made with respect to the applicant’s practice of producing and possessing enough marihuana to smoke seven grams of the drug each day. As was noted by
Justice
Herman
:
42 … freedom of religion under the Charter has been given a highly individualized and subjective interpretation: see Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551; and Big M Drug Mart. Context is everything: what one adherent of a religion believes