As the Federal Court Justice exited the courtroom and closed the door behind him, an odd look flashed unanimously across the faces of those who remained that could only be described as, ‘Holy shit. What the Hell just happened?’
We had just spent the last day and a half as witnesses to possibly one of the most unorthodox and mind-bending proceedings that has ever made its way through Canada’s courts.
The unique case was a challenge put to the Canadian Charter of Rights and Freedoms by cannabis activist Chris Bennett and his attorney Kirk Tousaw, which eventually played out in a downtown Vancouver courtroom on November 8 and 9.
Bennett, the former manager of the Pot TV Network and a contributor to Cannabis Culture, believes cannabis is the Tree of Life described in the Christian Bible and a sacred plant that has played a major role in the practice of countless religions throughout human history.
He’s written three published books on the subject of marijuana and religion, and uses cannabis daily to induce a revelatory experience – his connection with the collective consciousness – as part of his Gnostic faith.
In February of 2009, Bennett applied for an exemption from the Controlled Drugs and Substances Act (CDSA) that would allow him to use seven grams of marijuana each day as a religious sacrament, submitting to the Minister of Health information about his research and beliefs, and a statutory declaration and under-oath sworn statement.
Under Section 56 of the CDSA, the Minister has the right to “exempt any person or class of persons” from the provisions of the Act if it “is necessary for a medical or scientific purpose or is otherwise in the public interest.” This provision has been used in the past – indeed, the first legal users of medical marijuana in Canada were granted exemptions under Section 56.
A few months later, without contacting Bennett for further information or doing any research into the history of the religious use of cannabis, the Minister’s office denied his request, stating only that it “would not be in the public interest.”
Bennett wasted no time in filling for a judicial review of the Minister’s decision in Federal Court and an order to compel the issuing of an exemption – or a declaration by the courts that laws prohibiting possession and production of marijuana are unconstitutional and violate several sections of the Charter. These sections include Section 2, which protects religious freedoms; Section 7, which protects the liberty and security of the person; and Section 15, which guarantees equality and prevents discrimination on the basis of religious belief.
As the months passed in the lead-up to the judicial review, Bennett submitted affidavits from several professors outlining a rich history of the use of psychoactive substances as sacraments for religious and spiritual purposes. The government also filed its own affidavits.
The Judicial Review
Bennett’s lawyer Kirk Tousaw is also a well-known cannabis activist, the executive director of the Beyond Prohibition Foundation, and a contributor to Cannabis Culture and Pot TV. Most importantly, he is a top-notch lawyer with razor-sharp courtroom prowess.
On day one of the judicial review, Tousaw laid out the history of his client’s path to his current spiritual understanding, which began in the 1990s when Bennett was a nightwatchman at fish-packing plant who smoked pot only occasionally for fun. After a series of events led him to read the Bible, Bennett had the shining epiphany that cannabis was the Holy Tree of Life referred to in the Book of Revelation, whose leaves “were for the healing of the nations”.
After his revelation, Bennett began extensive studies into the history of cannabis and its use by various religions from around the globe, which eventually lead to his becoming a full-time cannabis activist and author. His three books, Green Gold the Tree of Life: Marijuana in Magic & Religion, Sex, Drugs, Violence and the Bible and Cannabis and the Soma Solution, delve deeply into the plants long relationship with various religions.
In his explorations into the divine plant, Chris eventually found the The Church of the Universe, a religious organization that, like him, recognized cannabis as the Tree of Life. He became a member, reverend, and doctor of theology of the group.
Tousaw explained this and much more to the court, describing the intricacies of Bennett’s beliefs and explaining how the prohibition on marijuana and the Minister’s denial prevent him from practicing his chosen religion, therefore violating the Charter.
“The deleterious effects that Mr. Bennett experiences are that he is forced to chose between his liberty and his heath and religious freedom,” Tousaw said. “That he is driven to the black market in order to facilitate the exercise of his religious freedom. The stress of possible persecution. The stigma of being seen as a criminal. … As well as the possibility of losing custody of his son and having his property seized.”
He argued that the Minister’s explanation for denying his clients exemption, that it “would not be in the public interest,” was insufficient – and that since there is already a system for issuing exemptions for medical marijuana that has not led to negative consequences for Canadians, it couldn’t possibly hurt to issue one more exemption for religious purposes.
Tousaw noted that the religious use of the psychoactive substance peyote is legal in Canada. He also mentioned that a tentative exemption was granted by the government for the religious use of Ayahuasca, though the judge did not allow the latter information to be used in court.
Other Cannabis and Religion Cases
Bennett’s is one of several cases that have argued the religious right to cannabis in the Canadian courts.
In an earlier court case involving two reverends of the G13 Church of the Universe in Toronto, Bennett helped with the case. The two men were using the religious right to cannabis as a defense after they were busted trafficking in marijuana and hashish when police raided their church. The government filed an affidavit in the case from a Catholic Priest they expected to used as an “expert witness”, who called their beliefs a “parody religion”. Although the Judge ruled that the men held sincere religious beliefs about cannabis being the Tree of Life, as in other church cases, the men lost the case.
A different case involving Church of the Universe Reverend Ian Hunter’s use of cannabis as a religious sacrament also involved Bennett as a potential expert witness. The Judge ruled that Hunter was sincere and that cannabis had been used historically as a religious sacrament. But in a ridiculous verdit, the Judge said he could not allow it to go further, as that would open the law up to Indian Thugees, who ritually murder people, and cannibals who ritually eat people to practice their religion. This is obviously an irrelevant point, as both of these groups require victims and the violation of someone else’s charter rights. Hunter did not appeal the case, as he received only a small fine for selling seeds from his shop the Sacred Herb, which set a precedent for future Canadian seed sales. Hunter’s case was the last for the 72-year-old Judge Montague Drake II, who was a second-generation Canadian judge.
The Honourable Michel M.J. Shore
From the moment Judge Shore walked into the courtroom, it was evident it wasn’t going to be an average day in Federal Court.
A silver-haired man with an average build who looked about sixty-years-old, his first instruction was for his assistant to switch-off the fluorescent lights in favour of the natural light streaming in through the large windows, which he said he preferred.
He then made everyone in the room, including all the observers in the gallery, stand up and introduce themselves and reveal their profession or “what they do”. Everyone in the room complied, including an observer from the Department of Justice and an observer from Health Canada. Two observers who identified themselves as medical marijuana users were asked bluntly by the Judge to share their conditions, which they did. Later, some members of the gallery expressed discomfort with being put on the spot and asked such personal questions.
Judge Shore was eccentric, but seemed like a caring fellow. He repeated several times that all of us in the room were officers of the court, and that he wanted to “include everyone” in the decision-making process.
It sounded nice at first, but after thinking about it for a few minutes, I realized it didn’t really mean much. That pattern was repeated over and over again for the rest of the hearing in many of Judge Shore’s statements.
The judge told us repeatedly that he had spent considerable time on reviewing the material, and it seemed like he had at least some understanding of the historical relevance of cannabis through the submissions of Bennett and Touaw, and Bennett’s books. During the first break I Googled his name on my iPhone and found a list of books he had authored on the subject of religion and spirituality. At that still-early point, I was beginning to think Judge Shore might actually give Bennett a fair shot.
But all Hell broke loose when we returned from the break.
The Judge got caught up several times in a strange circular logic of nonsensical statements, and would then repeat those statements over and over again – and none of us knew what in the Lord’s Name he was talking about! Many confused glances bounced around the room.
Here’s an example of one of the Judge’s odd statements:
“In order to see what something is, you have to see what someone says it is not. That’s why, for example in any kind of religious dispute, whether it be of a talmudic nature, whether it be of a cannon nature, whether you see in Christian cannon, muslim cannon, and anything else – we have great scholars, for example, who debate, as they did for example in a debate recently in England, an atheist and a religious scholar. So what we’re saying here is that what something is, is defined very often not only by what someone says it is but what someone says it isn’t, in order to know what it is.”
Again, it sounded at first like it might make some sort of sense, but after thinking about it for a second or two, I was lost. So were the others in the gallery. There was no context to the statement and Judge Shore quickly moved into a different train of thought.
He asked Tousaw to continue his arguments several times, but every time the attorney began to speak, the Judge cut him off.
Launching into another confusing rambling, Judge Shore said,
Basically, the decision is going to be either entirely what your colleagues have said in their memorandum of law or the decision will be entirely what you have said in your memorandum of law, it’s all a part and parcel. It’s almost like the religious experience … it’s all integral. You could say we’re wrong or we’re right, whatever decision was taken – you would tell me I was right or wrong. But I have to make the conscious choice and say you are entirely right on the governments side, or Mr. Bennett’s view is completely right. Because it’s integral – you need each part. The moment you dismember or dissect something it’s no longer part of the whole. Either argument.”
And I realize that because it would be unfair to you if I dissected any of your argument. Because if I dissect it and take it away, it is not whole … my key is to identify and see does each part in each argument you have put together, if it doesn’t fall apart then it is whole. And you’ve got – it has to be – all your arguments have to be integral for you to be successful.
He went on for more than 10 minutes like that, repeating essentially the same thing over and over again and we were all stunned. When we left the courtroom for the second break, everyone admitted they had no idea what he was talking about.
When he wasn’t confusing us, the Judge seemed to want to focus on a few narrow issues that didn’t seem relevant to the case. Some of these were in regard to how some people in foreign countries, like China, are more harshly persecuted for practicing their religious beliefs than Bennett is in Canada. Since we were sitting in a Canadian courtroom arguing Canadian law, discussing what happens in other countries seemed like a waste of time and had little bearing on the case.
The Judge also suggested that though Bennett had only requested a personal exemption for his own religious beliefs, “missionary work” must be an integral part of his belief system. He repeated this several times, giving some of us the impression that he may have been setting Bennett up for a loss with the justifying rational: ‘if I give an exemption to you, I have to give one to everybody else. Then the government would have to create a new exemption scheme, which would entangle it too deeply in religious matters.’
Tousaw’s answered this point in his own remarks:
The absolute prohibition on one’s religious practice is significantly more impactful and detrimental to one’s religious practice than an exemption scheme which may require the government to make certain case by case decisions. In any event, the exemption scheme is already there. You don’t have to create a new exemption scheme. The Minister is considering exemptions on a case by case basis already. … Section 56 is already there to operate as a potential exemption scheme. What would the government consider in deciding whether to grant exemptions? It would consider those things that the Supreme Court of Canada said is permissible for the state to consider … the sincerity of the individual’s beliefs that the practice fosters a connection with the divine.
The Judge also asked Bennett whether he would be in court at all if there wasn’t a prohibition on marijuana, apparently attempting to questioning his sincerity in some way.
Tousaw said “no” and noted that if Bennett was free to smoke marijuana as he pleased and there was no law against it, it wouldn’t be possible to ask for an exemption, as there would be no law to be exempt from.
The Prosecution’s Argument
When it was Government Prosecutor Robert Danay’s turn at bat, he attempted to simplify and shorten his argument down to a few basic points:
Based on the controlling jurisprudence and legislative-backed evidence, there is no question that the applicant’s practice of smoking seven grams of marijuana everyday poses a serious risk of harm to his health [and]… as a result of that, granting the applicant the exemption that he seeks would completely undermine the primary objectives of the CDSA, particularly the protection of health.
Out of the gates, Danay claimed seven grams of pot rolls into 35 joints. The gallery chuckled and Tousaw suggested it was more like 14. Then Danay dropped the health-risk bomb, claiming marijuana is a dangerous, addictive, cancer-causing substance that may cause permanent brain damage.
Even the Judge wasn’t feeling this one and brushed it off quickly. Tousaw countered that vaporizing the marijuana would remove any negative effects associated with smoking.
The prosecution then claimed granting an exemption for Bennett would mean “opening the flood gates” for everyone, and somehow included Cannabis Culture in his argument:
If all that one needed to do in order to obtain marijuana legally was sign a declaration saying that one believes that marijuana is the Tree of Life, there can be no doubt that there will be a veritable flood of individuals doing just that. … Yesterday, one of the individuals in the gallery was the editor for Cannabis Culture Magazine, and one could only imagine what the front page of Cannabis Culture Magazine would be if the applicant today would be granted the relief that he is seeking. I think that message would be transmitted far and wide.
Danay said the best interests of the collective outweigh Bennett’s individual religious freedoms; and since marijuana is potentially dangerous, it would be irresponsible of the Judge to allow the exemption.
He also said Bennett failed in his duty to provide the minister with the evidence necessary to show his practice has “the requisite nexus with religion” and that it would be inaccurate to compare Bennett’s “completely unrestrained” consumption of marijuana use with the religious sacraments in other religions.
One other point the prosecution seemed to be in line with the Judge about, was that in other religions, as Danay put it, “the psychoactive substance itself is not the central belief, rather, the use of the substance is a religious practice that assists people in their worship.”
Another Strange Twist
Just before Tousaw was given the chance to read his final remarks, the Judge decided to pull him and Bennett and the two prosecutors into his private chambers for a closed-door discussion.
Bennett told me in a interview after court had adjourned that the Judge made him an offer to simply walk away and leave things as they were.
“The Judge said, ‘why don’t we just leave this as it is? We have two complete points of view here. Two points of view that can stand alone. And we can leave here with a new understanding.’ Then I said, ‘What would be the benefit of that? At least with a ‘No’ I can appeal it.”
Judge Shore asked Bennet how far he though he’d get with another judge who may be less interested, and Bennett answered that he didn’t make predictions about outcomes, but preferred to walk the path he is on because he felt he is right and sincere in his beliefs.
When the Judge seemed upset, Bennett told him he should just send the file back to the Minister’s office and tell them to put the same sort sort of due diligence the Judge had put into the file and write a better response.
“I told him there were only two options for me,” Bennet said. “Either I leave here as a free man or I leave here as a criminal.”
Everyone agreed the private meeting with the judge was unlike anything they had experienced before.
Tousaw told me in an interview after we finished in court that he though he had put forward the best argument possible given the state of the case law and the evidence available.
“I think we did enough to establish that Chris’s Section 2 rights are being violated and that he sincerely believes what he said to the Minister he did believe,” he said. “The question really in my mind boils down to, given that he has passed that threshold, what is society prepared to tolerate? We already tolerate exemptions for other important purposes, and I think Canadian society is ready to grant another in this case.”
In the Memorandum of Fact and Law submitted by the government, Danay wrote that Bennett failed to connect his “marihuana use” with a “comprehensive system of faith and worship”:
For example, the applicant failed to establish any connection between his practice and any moral or ethical precepts or obligations. He did not even suggest that there are any restrictions imposed by the Church of the Universe on the use of marihuana by its adherents. He did not indicate that the Church prohibits the consumption of marihuana in the presence of children or while driving a car or operating heavy machinery. To the contrary, on cross-examination the applicant repeatedly maintained that all uses of cannabis, no matter what the context, are “sacramental” (and this presumably permitted). His evidence on this point is consistent with the evidence of the accused in R. v. Hunter, who testified that the moral dictates of the Church of the Universe could be summed up by the phrase “[do]as you will”.
Tousaw closed his final argument in court with this quote from French Renaissance writer François Rabelais, a monk and bachelor of medicine, who like Bennett was persecuted for cannabis use, and wrote about it under coded references as “the plant pantagreulion”,
Do What Thou Wilt; because men that are free, well-born, well-bred, and conversant in honest companies, have naturally an instinct and spur that prompteth them unto virtuous actions, and withdraws them from vice, which is called honour. Those same men, when by base subjection and constraint they are brought under and kept down, turn aside from that noble disposition by which they formerly were inclined to virtue, to shake off and break that bond of servitude wherein they are so tyrannously enslaved; for it is agreeable with the nature of man to long after things forbidden and to desire what is denied us.
Just before leaving the courtroom and a stunned audience behind him, Shore promised he would decide soon, but would probably “need the weekend to sleep on it” before making his Final Judgment.
Bennett awaits his Rapture.
Watch Chris Bennett discuss his thoughts about the case on the latest episode of Cannabis Culture News LIVE.