COURT FILE NO.: CV-17-6796

DATE: 2018/05/09

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

REVEREND BROTHER MICHEL D. ETHIER

Self-Represented

Plaintiff

• and -

ATTORNEY GENERAL OF CANADA

Jennifer Bond, for the Defendant

Defendant

HEARD: March 29, 2018

ellies j.

REASONS FOR DECISION

OVERVIEW

[1] There are two motions before me in this action. In the first, the plaintiff moves for default judgment under r. 19.05 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, based on the defendant’s failure to deliver a statement of defence. In the second, the defendant moves to strike all or, alternatively, portions of the plaintiff’s statement of claim under r. 21.01(b) as disclosing no reasonable cause of action.

[2] For the following reasons, the plaintiff’s motion is dismissed and the defendant’s motion to strike portions of the statement of claim is granted, with leave to amend only what I have concluded is really a claim for a constitutional exemption from the enforcement of certain sections of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (the “CDSA”), based on the plaintiff’s rights under s. 2(a) of the Canadian Charter of Rights and Freedoms.

[3] I will begin by describing the statement of claim in a general way before dealing first with the plaintiff’s motion and then with that of the defendant.

THE STATEMENT OF CLAIM

[4] The plaintiff’s statement of claim was issued on July 31, 2017, and served upon the defendant the next day. It appears to have been prepared by the plaintiff, without the assistance of a lawyer. As one might expect, therefore, it does not contain the clarity often associated with professionally prepared pleadings. For example, many of the paragraphs are not numbered, which makes my task in referring to specific parts of the document more difficult. In deciding the defendant’s motion to strike, I have made a generous allowance for the plaintiff’s lack of legal training by giving the statement of claim the broadest interpretation possible.

[5] The statement of claim alleges that the plaintiff is a Minister with the Assembly of the Church of the Universe (the “Church”). The statement of claim also alleges that cannabis/marihuana is known as the “Tree of Life” to members of the plaintiff’s faith and is the sacrament of the Church.

[6] In the statement of claim, the plaintiff alleges that he was arrested on September 16, 2015, by a member of the West Nipissing Police Service (the “WNPS”) for possession of cannabis, contrary to s. 4(1) of the CDSA. The plaintiff was charged and the matter went to trial. The plaintiff was acquitted, apparently as a result of a finding by the trial judge that the plaintiff’s rights under s. 9 of the Charter had been breached.

[7] In the statement of claim, the plaintiff alleges that he wrote a letter “to the agent of the defendant” shortly after being charged, requesting that the charge be withdrawn. The plaintiff has attached a number of documents to the statement of claim, one of which is a copy of a letter dated October 30, 2015, to a local lawyer. Based on the contents of the letter, the lawyer was likely acting as a local agent on behalf of the Public Prosecution Service of Canada (the “PPSC”).

[8] In the October 30 letter, the plaintiff made reference to another charge of possession of cannabis having been withdrawn previously by a different agent of the PPSC. Attached to the October letter and to the statement of claim is an excerpt of a transcript of an appearance before the Ontario Court of Justice on December 17, 2009, in which the PPSC agent states that proceeding with the charge would not be in the public interest because it “could have an adverse effect on more serious matters that Mr. Ethier is presently proceeding [sic] before the court.” There is no information in the October 30 letter, the transcript, or the statement of claim regarding the other, more serious, matters.

[9] The prosecutor did not withdraw the charge that is the subject of the statement of claim. As a result, the plaintiff alleges that he had to attend court nine times before being acquitted at trial.

[10] In the statement of claim, the plaintiff seeks general damages of $100,000 for the “disregard by the defendant” of his Charter rights, aggravated damages in the amount of $100,000 for the “wilful and known violation of his s. 2(a) Charter rights”, and punitive damages in the amount of $150,000 for “stress and anxiety for the unnecessary court appearances” that he was required to make.

[11] The plaintiff also seeks an interim and permanent injunction “preventing the defendant from prosecuting the plaintiff for allegations of violations of the Controlled Drugs and Substances Act… with regards to the Tree of Life/Cannabis/Marihuana and its derivatives”.

[12] The defendant has not yet delivered a statement of defence.

THE PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT

[13] The plaintiff’s motion is brought under r. 19.05, subrule (1) of which provides:

Where a defendant has been noted in default, the plaintiff may move before a judge against a defendant on a statement of claim in respect of any claim for which default judgment has not been signed.

[14] As I explained to the plaintiff during the hearing of the motion, the defendant has not yet been noted in default of delivering a statement of defence. Under r. 19.01(5), a defendant may deliver a statement of defence at any time before he or she has been noted in default. Therefore, the clock has not yet stopped running on the defendant. As I also explained, it is common for a defendant not to deliver a statement of defence where she alleges that the statement of claim is defective, as the Attorney General does in this case.

[15] For these reasons, the plaintiff’s motion is dismissed as being premature.

THE DEFENDANT’S MOTION TO STRIKE

[16] The defendant seeks an order striking the plaintiff’s claim under three rules: 21.01(1)(b), 21.01(3)(d) and 25.11. Rule 21.01(1)(b) permits a party to move before a judge for an order striking out a pleading on the basis that it discloses no reasonable cause of action or defence. Rule 21.01(3)(d) permits a defendant to move for the stay or dismissal of an action that is frivolous, vexatious or is otherwise an abuse of the court’s process. Rule 25.11 permits the court to strike out or expunge a pleading that may prejudice or delay the fair trial of an action; is scandalous, frivolous or vexatious; or is an abuse of the court’s process.

[17] While the defendant’s notice of motion refers to all three of these rules, both in the defendant’s written argument and in the oral submissions made on her behalf, the focus has been solely on r. 21.01(1)(b). I will restrict my focus to that rule as well.

[18] The test under r. 21.01(1)(b) is well-settled. Before a pleading can be struck, it must be plain and obvious that the claim cannot succeed, assuming that the facts alleged in the statement of claim can be proved: Hunt v. Carey Canada Inc., 1990 90 (SCC), [1990] 2 S.C.R. 959, at p. 980.

[19] Pursuant to r. 25.06(1), a plaintiff must plead all relevant facts on which he intends to rely in support of his claim. Although the specific elements of the cause of action do not need to be pleaded, the plaintiff must still plead facts supporting each essential element. Where this is not done, it will be plain and obvious that the claim fails to disclose a cause of action: Dawson v. Rexcraft Storage and Warehouse Inc., 1998 4831 (Ont. C.A.), at paras. 10 and 11; EnerWorks Inc. v. Glenbarra Energy Solutions Inc., 2012 ONSC 414, at paras. 38 and 41.

[20] As Borins J.A. pointed out in Dawson, a pleading may be struck under r. 21.01(1)(b) either because it fails to contain allegations of fact that will support a legal cause of action, or because the plaintiff seeks relief for acts which are not proscribed under the law. The statement of claim in this case suffers from both types of defects, in my view.

Breaches of Sections 7 and 9 of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

[21] The defendant submits that, at its highest, the statement of claim seeks damages against her for breaches of the plaintiff’s rights under s. 2(a) (freedom of religion), s. 7 (right to life, liberty and security of the person) and s. 9 (freedom from arbitrary detention or imprisonment) of the Charter. In my opinion, this characterization is overly generous, as it relates to the Attorney General.

[22] Read as a whole, the statement of claim appears to seek damages against the defendant only with respect to an alleged breach of the plaintiff’s right under s. 2(a) of the Charter. Both in the opening section entitled “Claim” (in which the plaintiff sets out the various damage claims to which I have earlier referred) and in the final section entitled “Cause of Action”, the plaintiff refers only to an infringement of his s. 2(a) rights. The latter section consists of only two paragraphs. One proposes that the action be tried in North Bay. The other reads:

That the Defendant’s agents, officers and servants by their acts set forth in the above stated facts did knowingly, wilfully and negligently and by their omissions infringe and violate the Plaintiff’s freedom of religion as guaranteed to him by the Canadian Charter of Rights and Freedoms s. 2(a), Constitution Act, Part 1.

[23] The only reference to an alleged infringement of the plaintiff’s rights under ss. 7 or 9 is contained in a single paragraph, located under the heading “Jurisdiction”. For ease of reference, I will set out the entire paragraph, with emphasis on those portions that I believe lead inevitably to the conclusion that the plaintiff’s claims under ss. 7 and 9 are not advanced against the Attorney General. The paragraph reads:

This is a civil action brought pursuant to the Charter of Rights and Freedoms s. 24(1) before the Ontario Superior Court of Justice, a Court of competent jurisdiction within the meaning of that Charter section. The Claim seeks damages from the Defendant, the West Nipissing Police Service in the grounds hereinto [sic] alleged in that they are vicariously responsible for the known and wilful abuse of process by their officers, servants and agents; the wilful known and negligent refusal of those persons to follow the laws applicable to them as enacted, prescribed and mandated by the Acts of Parliament which empowers them [sic] the whole on the specific grounds that the said officers, agents and servants knowingly and wilfully and in complete disregard to the rights of the Plaintiff did: infringe and deprive the Plaintiff of his Charter 7 s. right not to be deprived of liberty and security except in accordance with the principles of fundamental justice and did: wilfully infringe and deprive the Plaintiff of his Charter section 9 right not to be detained except in accordance with the principles of fundamental justice.

[24] Even allowing for drafting deficiencies, it is clear from the foregoing paragraph that the plaintiff alleges breaches only against the WNPS, which has not been named as a defendant in this action. While the paragraph does refer to “the Defendant”, it is clear that the plaintiff is referring not to the Attorney General, but to the WNPS. Further, whereas the plaintiff’s claim against the Attorney General under s. 2(a) of the Charter appears to be based on the notion that the defendant ought not to have followed the CDSA in prosecuting him, his claims under ss. 7 and 9 appear to be based on a failure to follow the applicable laws, which can only be a reference to the actions of members of the WNPS.

[25] Elsewhere in the statement of claim, under the heading “Defendant”, the defendant pleads:

[The] Defendant, the Attorney General for Canada in that the named Defendant is responsible for the acts and conspiratorial acts, malicious prosecution, omissions and violations of the statutory and constitutionally imposed obligations and duties of their respective agents, officers and servants to protect the rights of the Plaintiff and to neither infringe nor violate those rights.

[26] Even if it could be said that, by virtue of this paragraph, the plaintiff is alleging that the Attorney General is responsible for the acts of the WNPS, this claim could not be sustained. The federal Crown is not vicariously liable for the acts of a municipal police force: Crown Liability and Proceedings Act, R.S.C., 1985, c. C-50.

[27] Finally, during argument, the plaintiff indicated that, if his claim was struck with leave to amend, he would not allege a s. 9 breach against the Attorney General, as he has already commenced a separate proceeding against the WNPS.

[28] For these reasons, I do not agree that the plaintiff has alleged breaches of ss. 7 or 9 of the Charter against the Attorney General.

[29] As I will explain in the next section, however, even if the plaintiff bases his claim for damages against the Attorney General under s. 7 on an alleged breach of s. 2(a) of the Charter, it cannot succeed as pleaded.

Breach of Section 2(a) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

[30] Section 2(a) of the Charter guarantees the right to freedom of conscience and religion. In Syndicat Northcrest v. Anselem, 2004 SCC 47, [2004] 2 S.C.R. 551, the Supreme Court of Canada held that “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 fulfillment, the practices of which allow individuals to foster a connection with the divine or with the subject or object of that spiritual faith” (para. 39).

[31] In Anselem, the Supreme Court held that freedom of religion “consists of the freedom to undertake practices and harbour beliefs, having a nexus with religion, in which an individual demonstrates he or she sincerely believes or is sincerely undertaking in order to connect with the divine or as a function of his or her spiritual faith, irrespective of whether a particular practice or belief is required by official religious dogma or is in conformity with the position of religious officials” (para. 46).

[32] In order for a claimant to show that an impugned act interfered with his rights under s. 2(a) of the Charter, he must show that the interference was more than trivial or insubstantial (para. 59).

[33] The defendant submits that the plaintiff has not pleaded any material facts that would, if proven, amount to a breach of his freedom of religion by the defendant. I am unable to agree. As the defendant concedes, the plaintiff has pleaded that he is a member of the Church, that the Church views cannabis as a sacrament, and that he was arrested and prosecuted for possession of cannabis. To be arrested and prosecuted for possessing a sacrament of one’s faith could constitute interference with one’s freedom of religion, in my view. In other words, it is not plain and obvious to me that this aspect of the plaintiff’s claim cannot succeed. Where the claim does fail, however, is in pleading sufficient facts in support of the relief requested by the plaintiff in connection with the alleged breach of his rights under s. 2(a) of the Charter.

Damages under [Section 24(1)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

[34] As I mentioned above, the plaintiff seeks general and aggravated damages for breaches of his Charter rights.

[35] Damages are available as a remedy under s. 24(1) of the Charter to anyone whose rights and freedoms have been infringed: Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28. In Ward, the Supreme Court held that damages will be available under s. 24(1) where appropriate and just. On behalf of the court, McLachlin C.J. set out a four-step process to determining whether s. 24(1) damages should be awarded (para. 4):

The first step in the inquiry is to establish that a Charter right has been breached. The second step is to show why damages are a just and appropriate remedy, having regard to whether they would fulfill one or more of the related functions of compensation, vindication of the right, and/or deterrence of future breaches. At the third step, the state has the opportunity to demonstrate, if it can, that countervailing factors defeat the functional considerations that support a damage award and render damages inappropriate or unjust. The final step is to assess the quantum of the damages.

[36] In Ward, the Supreme Court upheld a trial judge’s award of damages under s. 24(1) in the context of an unconstitutional strip search, even though the trial judge held that the search had not been conducted in bad faith. In order to obtain damages under s. 24(1) of the Charter for the prosecution of an offence under a valid law, however, the plaintiff must prove that the prosecution was motived by malice or an improper purpose.

[37] In McGillivray v. New Brunswick, 1994 4465 (N.B.C.A, 116 D.L.R. (4th) 104, leave to appeal to S.C.C. refused, (1995) 120 D.L.R. (4th) vii (note), the plaintiff had been charged with murder. The charge was eventually withdrawn, but not before the plaintiff had spent ten weeks in custody. The plaintiff sought damages under s. 24(1) of the Charter against the Crown as a result of the alleged infringements of her rights. Her claim was struck on a motion to determine a question of law: 1993 15472 (NB QB), 140 N.B.R. (2d) 365 (Q.B.). The plaintiff’s appeal to the New Brunswick Court of Appeal was dismissed. As Ryan J.A. wrote on behalf of the court (p. 5):

The enforcement of the criminal law is one of the most important aspects of the maintenance of law and order in a free society. So long as the carrying out of duties in relation to the investigation and prosecution of persons in pursuit of the aims of the justice system is done within jurisdiction and with an absence of mala fides, there can be no recovery.

[38] See also Osborne v. Ontario (Attorney General) (1996), 10 O.T.C. 256 (Gen. Div.), at para. 14, aff’d 1998 5920 (C.A.); Ferri v. Root, 2007 ONCA 79, 279 D.L.R. (4th) 643, at para. 108.

[39] Recently, the Supreme Court of Canada held that, in certain circumstances, it is not necessary to prove malice in order to recover damages under s. 24(1) of the Charter. In Henry v. British Columbia (Attorney General), 2015 SCC 24, [2015] 2 S.C.R. 214, the court held that it was not necessary to prove malice where the plaintiff’s Charter rights were infringed as a result of the Crown’s failure to make proper disclosure in a criminal case. However, the Supreme Court’s decision in Henry was restricted to cases involving non-disclosure. It does not impact the need to prove malice where the claim for damages is based on the initiation or continuation of a prosecution. As the court held (at para. 59):

Unlike the decision to initiate or continue a prosecution, the decision to disclose relevant information is not discretionary. Rather, disclosure is a constitutional obligation which must be properly discharged by the Crown in accordance with an accused’s right to make full answer and defence, as guaranteed under ss. 7 and 11(d) of the Charter: see R. v. Stinchcombe, 1991 45 (SCC), [1991] 3 S.C.R. 326, at p. 336; R. v. Mills, 1999 637 (SCC), [1999] 3 S.C.R. 668, at para. 5.

[40] Where a plaintiff is required to prove malice or an improper purpose, a failure to plead the facts necessary to meet the threshold will be fatal to the claim (Henry, at para. 43).

[41] The plaintiff in this case has not alleged malice or an improper purpose, nor has he pleaded the facts necessary to support such an allegation. It is not enough to plead merely that the prosecutor failed or refused to withdraw the charge even though another prosecutor had once withdrawn a similar charge.

[42] As a result, it is plain and obvious that the plaintiff’s claim for damages under the Charter for infringing his s. 2(a) rights cannot succeed.

Injunction

[43] As I also mentioned earlier, in addition to seeking damages under s. 24(1) of the Charter, the plaintiff seeks an injunction preventing the defendant from prosecuting him for alleged violations under the CDSA relating to the possession of cannabis. As I interpret the statement of claim, the plaintiff’s request for an injunction amounts to a request for a constitutional exemption from the specified provisions of the CDSA. In R. v. Big M Drug Mart Ltd., 1985 69 (SCC), [1985] 1 S.C.R. 295, the Supreme Court left open the possibility that, in certain circumstances, a constitutional exemption might be granted from otherwise valid legislation under s. 24(1) to individuals whose religious freedoms are adversely affected by the legislation.

[44] Counsel for the defendant did not address the nature of the relief requested by the plaintiff, choosing instead to argue only that the plaintiff had not pleaded the facts necessary to succeed on his claim of a s. 2(a) Charter breach. Having found that the plaintiff has pleaded the facts necessary to sustain such a claim, I can see no reason why the plaintiff’s claim for a constitutional exemption could not also succeed.

[45] In R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, the Supreme Court considered at length the remedies of a constitutional exemption under s. 24(1) and a declaration of invalidity under s. 52(1) of the Charter. Writing for the court, McLachlin C.J. pointed out that (para 61):

[Sections] 52(1) and 24(1) serve different remedial purposes. Section 52(1) provides a remedy for laws that violate Charter rights either in purpose or in effect. Section 24(1), by contrast, provides a remedy for government acts that violate Charter rights. It provides a personal remedy against unconstitutional government action and so, unlike s. 52(1), can be invoked only by a party alleging a violation of that party's own constitutional rights: Big M; R. v. Edwards, 1996 255 (SCC), [1996] 1 S.C.R. 128. Thus this Court has repeatedly affirmed that the validity of laws is determined by s. 52 of the Constitution Act, 1982, while the validity of government action falls to be determined under s. 24 of the Charter: [Citations omitted.]

[46] The court in Ferguson held that a constitutional exemption was not an appropriate remedy where an allegation is made that a minimum mandatory penalty infringes the right to be free from cruel or unusual punishment under s. 12 of the Charter. Instead, the court held that the appropriate remedy in such a case is a declaration of invalidity under s. 52 of the Charter.

[47] In this case, the plaintiff is not challenging the validity of the CDSA provisions under which he seeks to avoid being charged for possessing the sacrament of his religion under s. 24(1) of the Charter. I am aware of no authority which would require him to pursue a declaration of invalidity under s. 52 instead of, or in addition to, his claim for a constitutional exemption.

[48] It is not plain and obvious, therefore, that the plaintiff’s claim in this respect must fail.

Allegations of Tortious Wrongs

[49] In addition to alleging Charter breaches, the statement of claim refers to three possible claims in tort law. Under the heading “Defendant”, the plaintiff alleges that the defendant is responsible “for the acts and conspiratorial acts, malicious prosecution, omissions and violations of the statutory and constitutionally imposed obligations and duties of their respective agents, officers and servants to protect the rights of the plaintiff and to neither infringe nor violate those rights”. Thus, in this portion of the statement of claim, the plaintiff appears to allege the torts of conspiracy and malicious prosecution.

[50] Earlier in the statement of claim, under the heading “Claim”, the plaintiff claims punitive damages for the “unnecessary court appearances caused by the negligent omissions of the defendant”. Thus, both in this part of the claim and in the part referred to immediately above, the plaintiff also appears to be alleging negligence against the defendant.

Conspiracy

[51] In order to succeed on this claim, the plaintiff must prove four things:

(1) an agreement between two or more persons;

(2) concerted action taken pursuant to the agreement;

(3) (a) if the action is lawful, that the conspirators intended to cause damage to the plaintiff;

(b) if the action is unlawful, that the conspirators knew or ought to have known that their action would injure the plaintiff; and

(4) actual damage suffered by the plaintiff:

Mraiche Investment Corporation v. McLennan Ross LLP, 2012 ABCA 95, 60 Alta LR (5th) 92, at para. 40.

[52] With the possible exception of the last of the elements set out above, the plaintiff has not pleaded facts which, if proven, could lead to liability with respect to this tort.

[53] Therefore, this claim should be struck.

Malicious Prosecution

[54] In order to succeed on this claim, the plaintiff must prove:

(1) that the proceedings were commenced or continued by the defendant;

(2) that the proceedings terminated in favour of the plaintiff;

(3) the absence of reasonable and probable cause; and

(4) malice, or a primary purpose other than that of carrying the law into effect:

Nelles v. Ontario, 1989 77 (SCC), [1989] 2 S.C.R. 170, at p. 193.

[55] The plaintiff has pleaded the first two elements set out above. On a very liberal interpretation, the plaintiff may also have pleaded the third element, in the sense that he has pleaded that the trial judge found a s. 9 breach. If that breach was known to the defendant or her agent and was based on a lack of reasonable and probable cause, it might constitute the third element.

[56] Even on a very liberal view, however, the plaintiff has not pleaded any facts which could satisfy the fourth element. As it is presently constituted, the statement of claim alleges only that the plaintiff requested that the defendant’s agent withdraw the charge before it proceeded to trial. This is not sufficient to prove either malice or a primary purpose other than that of carrying the law into effect. The mere fact that one prosecutor did not withdraw a charge whereas another prosecutor once withdrew an earlier charge is not evidence of malice or an improper purpose. This is especially true where, as here, it seems that the earlier charge was withdrawn because proceeding with it would somehow adversely affect other proceedings, not because proceeding would have been improper or abusive.

[57] For this reason, the claim of malicious prosecution should be struck.

Negligence

[58] To sustain an action in negligence, the plaintiff must establish:

(1) that the defendant owed the plaintiff duty of care;

(2) that the defendant breached the duty of care by engaging in conduct that fell below the standard of care;

(3) that the plaintiff sustained damage; and

(4) that the damage was caused, in fact and in law, by the defendant’s breach:

Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R. 114, at para. 3.

[59] The plaintiff has not pleaded any material facts in support of the first two requirements set out above. Instead, the plaintiff has pleaded only that he was caused stress and anxiety because of “unnecessary court appearances” due to “negligent omissions”. No facts have been pleaded that could constitute the negligent omissions alleged.

[60] As pleaded, it is plain and obvious that the plaintiff’s claim of negligence cannot succeed. Therefore, it should be struck.

Damages

[61] Given my ruling with respect to the claim for damages under s. 24(1) of the Charter and the various tortious claims potentially contained in the statement of claim, the plaintiff’s claims for damages in paras. a) through d), inclusive, under the headings “Claim” should be struck, as should his claim for interest set out in para. f) under that heading.

WHETHER LEAVE TO AMEND SHOULD BE GRANTED

[62] Where a litigant’s pleading has been struck under r. 21.01(1)(b), leave to amend should be denied only where it is clear that the pleading cannot be saved by an amendment: South Holly Holdings Limited v. The Toronto-Dominion Bank, 2007 ONCA 456, at para. 6.

[63] The essence of the plaintiff’s claim is that he was charged and unsuccessfully prosecuted for possessing a substance viewed as a sacrament in his religion, notwithstanding his request that the charge be withdrawn. During argument, I asked the plaintiff what amendments he would make to the statement of claim in the event that his claims were struck. He indicated only that he would make amendments to put some emphasis on his rights under s. 2(a) of the Charter. He did not indicate that he would plead any additional facts, such as malice or an improper purpose on the part of the prosecutor.

[64] For this reason, I would grant leave to amend the statement of claim only with respect to the plaintiff’s claim for a constitutional exemption based on a violation of his rights under s. 2(a) of the Charter. It is clear from the plaintiff’s comments during argument that his other claims would not be saved by the amendments he would make if granted leave. The statement of claim should be amended to remove those parts which I have indicated should be struck and to support, to the extent he wishes to do so, the plaintiff’s claim for a constitutional exemption. However, the amended statement of claim must be brought into compliance with the Rules.

[65] The statement of claim presently violates several rules:

(a) Rule 25.02 requires that the paragraphs in a pleading be numbered consecutively. This is necessary in order that the defendant can make specific reference in the statement of defence to those allegations with which she disagrees, in accordance with r. 25.07. At present, the headings in the statement of claim are numbered, rather than the paragraphs, with the exception of the paragraphs under the fifth and sixth headings. All paragraphs should be numbered consecutively; the headings need not be.

(b) Rule 25.06(1) requires that the material facts be pleaded, but not the evidence. The plaintiff has attached a number of documents to the statement of claim as appendices, including the letter and transcript to which I referred earlier. These must be removed.

(c) Rule 25.06(2) permits a party to raise a point of law, but requires that conclusions of law be supported by the necessary facts. Under the heading “Plaintiff”, following the paragraph that begins with “Section 2(a) of the Canadian Charter…” and ending before the paragraph beginning with “Cannabis/marijuana, also known as…”, the statement of claim contains long excerpts from the Big M Drug Mart decision. These must be removed, as they constitute legal argument, rather than conclusions of law. The legal conclusion to which these excerpts are addressed is presently contained in para. a), under the heading “Cause of Action”, which alleges that the defendant, or those for whom she is liable, infringed the plaintiff’s rights under s. 2(a) of the Charter.

[66] The plaintiff shall serve a fresh as amended statement of claim in accordance with r. 26.03(1) within 30 days of the release of these reasons. The defendant shall have 20 days thereafter in which to deliver a statement of defence.

COSTS

[67] Unless the parties can agree on costs, they shall be at liberty to make written submissions with respect to that issue as follows:

(1) by the defendant, within 20 days of the release of these reasons;

(2) by the plaintiff, in response, within 10 days of the receipt of the defendants’ written submissions; and

(3) any necessary reply by the defendant, within 10 days after the receipt of the plaintiff’s written submissions.

Ellies J.

Released: May 9, 2018

COURT FILE NO.: CV-17-6796

DATE: 2018/05/09

ONTARIO

SUPERIOR COURT OF JUSTICE

REVEREND BROTHER MICHEL D. ETHIER

Plaintiff

– and –

ATTORNEY GENERAL OF CANADA

Defendant

REASONS FOR decision

Ellies J.

Released: May 9, 2018