Dear Herb: Could I use a religious defence against cannabis charges?

Hey there, time traveller!
This article was published 09/05/2018 (3043 days ago), so information in it may no longer be current.

Dear Herb: Has anyone in Canada ever used the religious defence when they were charged with cannabis possession? (I’m possessed, I tell you!)

If I had been created by Cannabis and spent my life in service to Cannabis, spreading the good news and sharing the sacrament, would that not be a religion and worthy of protection under our Charter?

C-45 is very clear that you can’t give cannabis to an organization. Would a church be different? — The Hon. Reverend Reefer

Dear Reverend: So, you thought you’d figured out the loophole that would defeat government cannabis prohibition once and for all, eh?

All it would take is a little cannabis-inspired revelation, building a temple and sticking some sacramental bud upon the altar — and maybe some cool robes for good measure — and presto, your cannabis use would be protected from the long arm of the law under the Canadian Charter of Rights and Freedoms, which guarantees freedom of religion.

It’s a neat idea, Reverend, but it’s been tried before.

The Assembly of the Church of the Universe considers cannabis a holy sacrament, and church members have taken that belief to Canadian courts many times.

Let’s take a look at a relatively recent case involving a Church of the Universe member. It doesn’t involve criminal charges for cannabis possession, but it does show that federal courts have been skeptical about the idea of cannabis use as a religious practice.

In 2010, Christopher Bennett sought a legal exemption from federal law that would let him grow enough cannabis to use seven grams per day “for his personal religious consumption.” Bennett’s argument, which is still available online, describes his 1990 “cannabis-induced epiphany during which he came to the intuitive (understanding) that cannabis was the Biblical Tree of Life.”

“The fact that Mr. Bennett’s religious and spiritual practices are illegal causes him significant anxiety, emotional and psychological anguish,” wrote his lawyer Kirk Tousaw in a memo to the court.

The Minister of Health refused Bennett’s exemption request. Bennett took it to court, arguing his Charter rights were violated.

But in his 2011 ruling, Justice Michel Shore dismissed those Charter arguments outright, finding “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,” ruled the judge. “The lifestyle choices such as these are not protected by the right to freedom of religion.”

Finding that Bennett was entitled to a religious exemption from the law “would mean that anyone who made a similar assertion would be entitled to the same relief,” wrote the judge, which would undermine the objectives of the federal Controlled Drugs and Substances Act.

Bennett lost in 2011, but in 2013 he was granted an appeal. The appeals court found “conflicting factual findings” about whether Bennett’s “beliefs and activities concerning cannabis constitute a religious practice… as opposed to a secular practice or lifestyle choice.”

As far as I can tell, that second trial never took place. (I’ve asked Bennett’s lawyer for more information, and will update this column if I get it.)

Anyhow, Reverend, the upshot here is that you wouldn’t be the first Canadian to try “the religious defence” for cannabis in court, and it looks like it would be an uphill battle. If you want to give it a shot, I’d make sure your flock of cannabis worshippers donates generously to your legal defence fund — you’ll likely need it.

As for whether a church counts as an organization for the purposes of Bill C-45, I’m going to say: absolutely. C-45 uses the Criminal Code definition of “organization,” which is:

1. a public body, body corporate, society, company, firm, partnership, trade union or municipality, or
2. an association of persons that

1. is created for a common purpose, 
2. has an operational structure, and 
3. holds itself out to the public as an association of persons

Sounds like a church to me!

Until next time, readers, accept this blessing from Father Herb and keep the questions coming.

 

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