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Information No. CR-06-755-MO

††††††††††††††††††††††††††††††††††††††††††††††††††††

 

SUPERIOR COURT OF JUSTICE

 

HER MAJESTY THE QUEEN

 

v.

 

MICHAEL BALDASARO

and

WALTER TUCKER

 

 

**********

 

 

P R O C E E D I N G S

 

BEFORE THE HONOURABLE JUSTICE N. BORKOVICH

on November 27, 2006 at HAMILTON, Ontario

 

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APPEARANCES:

 

J. Gorham†††††††††††† Counsel on behalf of the Federal Crown

 

P. Boushy††††††††††††††††† Counsel on behalf of M. Baldasaro

 

W. Tucker†††††††††††††††††††††††††††††††††† †††††† In Person

 

 

(i)

R. v. M. Baldasaro and W. Tucker

Table of Contents

 

SUPERIOR COURT OF JUSTICE

 

T A B L E†† O F†† C O N T E N T S

 

RULING†††††††††††††††††††††††††††††††††††††††††† †††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Page 49

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MONDAY, NOVEMBER 27, 2006:
COURT REGISTRAR:† This is the matter of The Queen v. Baldasaro and Tucker.

REV. BALDASARO:† Good morning, Your Honour.

THE COURT:† Good morning, gentlemen.

REV. TUCKER:† Good morning, Your Honour, Iím, Reverend Tucker.

THE COURT:† Yes.

REV. BALDASARO:† Reverend Baldasaro.

THE COURT:† Yes.

MR. GORHAM:† Good morning, Your Honour, James Gorham for the Crown.

THE COURT:† Gorham?

MR. GORHAM:† Gorham, yes.

THE COURT:† Yes.

REV. BALDASARO:† Your Honour, Iíd ask the courtís permission to audio-record the proceedings this morning for the purposes of supplementing my handwritten notes.

THE COURT:† I have no objection to that, so long as it doesnít....

MR. GORHAM:† The Crown has no objection.

THE COURT:† ...disturb the proceedings.

REV. BALDASARO:† No, Your Honour.† In fact, that gentleman there, our brother, Lee Hillman, has his recorder.† That way I donít have to fumble up here with it.

THE COURT:† Very well.

MR. BARDASARO:† If that Ė thank you very much.

THE COURT:† Now, Mr. Boushy, whatís your role here?

MR. BOUSHY:† Iím counsel to Reverend Baldasaro.† I was counsel to him downstairs in the interior court and Iím counsel today, Your Honour.† Itís a four week trial, but this first week was scheduled for a pre-trial application as it concerns a constitutional issue, but I think both my friend and I and the Reverend Baldasaro and Reverend Tucker wish to speak to that particular issue, because of a certain ruling that Your Honour made many years ago concerning this very same issue.

THE COURT:† All right.† What issue is that?

MR. BOUSHY:† I think itís a constitutional issue, Your Honour, but I think my friend is in a better position to speak to...

THE COURT:† All right.

MR. BOUSHY:† ...speak to this.

THE COURT:† Yes.

MR. GORHAM:† Your Honour, itís an awkward position anytime this sort of issue has to be raised, but in preparation for the trial we went through a number of old proceedings and old transcripts, and whatnot, to prepare for this and old material thatís on file, and in fact, some of things that Mr. Baldasaro, or Michael Baldasaro and Walter Tucker have given the Crown in this proceeding and we came across some Reasons for Sentence that you gave, thatís undated, in a matter between The Crown and Michael Baldasaro.†

 

Michael Baldasaro thinks that it was in 1984.† Iíll pass it up to the court.† Iíve given copies.† Weíve had a chance to discuss this.† Iíll just give you a second to read the transcript.

THE COURT:† Yes.

MR. GORHAM:† Now we wanted to raise this issue at the outset.† The Crown was concerned that the accused, the applicant in this case, might raise this issue at some later point.† We wanted to bring it out onto the table at the outset.† And I discussed with my friend, Mr. Boushy, this morning and perhaps I could leave it in††††††† †Mr. Boushyís hands...

MR. BOUSHY:† Sure.

MR. GORHAM:† ...at this point.

MR. BOUSHY:† Your Honour, this whole week concerned a pre-trial motion in asking Your Honour to either strike down the provisions of the C.D.S.A. for overbradth, or in the alternative, to ask for a religious exemption to s. 4 and 5 of the C.D.S.A., a religious exemption because it was going to be argued before you this week that my clients personally and sincerely believe that the use of marihuana is part and parcel of their religion and that as a charge in a bail hearing and a trial and then having them being caught up under the criminal justice system is a nontrivial infringement on their rights that cannot be reconciled, particularly in light of the fact that there was a lack of harm to the public.† And we would be arguing and using various cases, primarily R. v. Clay, R. v. Amselem, Big M Drug Mart and the Multani case to argue this point.

 

What we were going to do is call police witnesses who could speak to the fact that thereís a sanctuary in the church, along with various other indicia of a religion and it was our intent also, and Iím saying this pursuant to my conversation with Reverend Baldasaro recently, it was my intent obviously because of what the case law says on this point, to call the Reverend Baldasaro to testify to, and only to, his personal belief.

 

The problem here, Your Honour, is in light of the fact that Your Honour, sitting as a Superior Court judge, would have to assess the sinceritious belief.† Thatís the first stage, whether the belief is sincere.† And then the second stage, if Your Honour so finds, is whether thereís a nontrivial infringement.† And then thereís another stage where you take into consideration the societal concerns.

 

But the reality of the matter is, Your Honour has already ruled, and in quite strong language, on Reverend Baldasaroís sincerity of belief concerning the use of marihuana as a sacrament in his religion.† No less than five times, Your Honour, no less than five times you indicate quite assertively that you felt that the Reverend Baldasaro was conning you.† Now you mention that word five times, that he was conning you into asking you to believe that his religion is sincerely held, itís belief in marihuana as a sacrament is sincerely held, along with other cons.†

 

And in light of that, Your Honour, weíre asking Your Honour to, with all due respect, Your Honour, but in light of the strong language that Your Honour used here, albeit many years ago, we would respectfully submit that, you know, a bystander watching these proceedings would feel that Your Honour has already basically decided the issue and that indeed there would probably be a reasonable apprehension of bias if Your Honour were to decide this issue again, because Your Honour so strongly previously decided this issue, that with all due respect, Your Honour, I would think a reasonable bystander sitting in the courts would think that Your Honour would decide it in a very similar fashion, and effectively thereís a reasonable apprehension of bias here.

 

And the other point here, is, Your Honour....

THE COURT:† Let me ask you this question before you go on.† If part of what I need to do is to rule as to whether or not....

MR. BOUSHY:† Their belief is sincere.

THE COURT:† There is a Ė why do I have to rule on that?

MR. BOUSHY:† Thereís a Supreme Court of Canada case that came down, Syndicat Northcrest v. Amslem.† Itís basically the preeminent case here, and Justice Iacobucci says numerous times, thatís what the judge has to do, he has to access the sincerity of belief in the first stage of the constitutional argument.† And that was also followed in 2005 by the case of R. v. Multani.

And itís because of these recent Supreme Court of Canada decisions as to the very role of assessing sincerity of belief that the judge has to engage in that in light of this particular decision of yours, Your Honour, weíd ask that this matter go before a different judge.

 

And I say this with all due respect, Your Honour.† I mean, it could very well be that had you ruled the other way Mr. Gorham would be standing here asking you to recuse yourself, but youíve already basically decided the issue against my client, Reverend Baldasaro and Reverend Tucker....

REV. BALDASARO:† No, no, just me.

MR. BOUSHY:† Sorry, Reverend Baldasaro.† And in light of the fact that youíve already decided this issue, particularly in the assertive language that Your Honour used, we have to put this in front of a different judge, with all due respect, Your Honour.

THE COURT:† Well....

MR. GORHAM:† Your Honour, if I could just speak to this.† I did bring this to my friendís attention because I think itís a serious issue.

THE COURT:† Iím surprised that Ė well, I guess after 22 years Michael Baldasaroís forgotten all about it.

MR. GORHAM:† Well, Iím not sure.† Perhaps he could speak to that, but...

THE COURT:† He was a much younger man 22 years ago.

MR. GORHAM:† ...my fear is he might remember it.

THE COURT:† So was I.

MR. GORHAM:† My fear was that he might remember it in two weeks time or four weeks time.

REV. BALDASARO:† Your Honour....

MR. GORHAM:† And then we will have perhaps gone through a very lengthy exercise all for not.† I think it must be clear to Your Honour that weíre not, the Crown is not suggesting that youíre biased in this matter.† The issue is whether a reasonable person looking at this transcript would come to the conclusion that you have a closed mind.† Now, thatís not an actual bias, but actual bias isnít necessary.† Our concern is that if this went before a Court of Appeal, the Court of Appeal might be inclined to send it back for another trial and we would have wasted a great deal of time.

 

I canít stress enough that the Crown does not believe that youíre biased.† Itís simply a reasonable apprehension of bias is the test and we feel that in an abundance of caution it would be appropriate in the circumstances.† This is not a motion thatís being brought by the Crown, but the Crown is consenting to the motion being brought by the applicants in this case.

Mr. BOUSHY:† The other point, Your Honour, is the whole thing is scheduled to last four weeks and - which is a lot of time and for both the court and the accused and the Crown and a lot of expense, and it would be most unfortunate if Your Honour did not recuse yourself from this case, that if this matter were ultimately Ė if the Court of Appeal ultimately ordered this matter to be retried, that would be most unfortunate for all parties concerned, including your brother judges.

THE COURT:† See that, heís suggesting that my brother judges are evading you fellows.

REV. BALDASARO:† I would hope so.† Your Honour, Iím just pleased that they recognize us now.† I would just like everybody to and let us go home.† Thank you.

REV. TUCKER:† Your Honour, there might be a better way out of this than impugning your integrity, which I have absolutely have no intention of doing at this point and had no intention of doing when I knew that you had heard other cases before because I know that times change and so do people, so that I had no doubt that possibly over the period of Ė what is it, 30 years, Your Honour?

REV. BALDASARO:† Yeah.

THE COURT:† Not quite that long.† Only 24, only 24.

REV. TUCKER:† We both picked up a few gray hairs, Your Honour, in the process.† Now, I believe that possibly....

THE COURT:† Iíve lost quite a few, but you seem to have maintained yours.

REV. BALDASARO:† Twenty-two years, Your Honour.

REV. TUCKER:† There you go.† So what Iím saying is that I had no intention of doing that, but what I do have a problem with, Your Honour, and it might be something that Your Honour would consider as seriously as I do, and that is that when this process started, it was the Hamilton-Wentworth Regional Police doing their usual thing, as you and Judge Scime have seen them do time and time again Ė invade our church, arrest us, drag us through their processes and then we start into the court system.† And as you know, we did that with the R.C.M.P. and then at the very last moment they withdrew their charges, they didnít want a jury trial.† So then they proceeded on the second ones with the Hamilton-Wentworth Regional Police.† They proceeded on that one and the Crown again withdrew their heavy duty charge and proceeded on four or five small ones, which are before Your Honour today.† Now, because the rule of law was violated, Judge Weseloh, who took upon himself the trial procedure, at the insistence of Stefan Marinier, who was the Attorney Generalís representative at that time and then seven days into the trial realized that he had violated his own jurisdiction and the jurisdiction of judges like yourself, he turned, he decided to turn the nullity that he had created for seven days into a preliminary hearing and we Ė please, will you let me finish before you stand up.

THE COURT:† Let him finish.

REV. TUCKER: †Please.† Goodness gracious.† I donít interrupt him, Your Honour.† In any case, what they did, what he did was he turned it into a jury trial, into a preliminary hearing and committed us to a jury trial, which is what is supposed to proceed before you today.†

 

Now, what we are claiming, Your Honour, is a fraud perpetrated upon us by the Crown and the fraud was confluent with the judgment of the court at that time, Judge Weseloh, and instead of giving us our election and allowing the process of the courts to proceed according to law, he decided to proceed on his own account and then, as I said, turned it into a preliminary hearing, and then committed us to trial, which is before you today.

 

The appeal of all those decisions and the appeal against your right to hear this case today, not you specifically, sir....

THE COURT:† Yes, but....

REV. TUCKER:† The court.

THE COURT:† The court, yes.

REV. TUCKER:† The objection we have is that the court is impugned is Ė terrible hearing aid, hearing problems.† You can hear me, canít you, Your Honour?

THE COURT:† I sure can, yes.

REV. TUCKER:† Okay.

THE COURT:† Never had a problem hearing you.

REV. TUCKER:† If you really put your pedal to the metal I can hear you too without this nonsense.

THE COURT:† All right.

REV. TUCKER:† All right, good.† What weíre saying is that the court at this level, by not objecting to that occurrence on their own behalf, became a part of the violation.† You donít have the right to hear it because you have already violated us by not demanding your right to hear a case that was only yours to hear, and by allowing a lower court judge to hear something that only you have the right to hear, unless we elect him to hear it, is a violation of due process, a violation of the fundamental rights that I have in common law.† Itís a violation of all the rights.† So we have gone to the Supreme Court of Canada.† Notice has been filed.† We are waiting for the decision to accept the application, but we feel that until they do, until they accept or reject, this court is without jurisdiction to hear it for, again, the same reasons that Mr. Boushy gave you.† If we proceed through this four weeks of trial and then the Supreme Court of Canada says, wait a minute, weíll hear this, itís all a nullity again like it was when Judge Weseloh heard it for seven days and then realized he didnít have the jurisdiction to go ahead.†

 

Why are we doing this?† Why are we beating ourselves and the courts to death for, for what, four grams of marihuana?† Why are we, why are you being beaten to death?† Why am I being beaten to death?† Why are we rushing this thing when we know that it should properly go before a higher court to make a determination as to the rule of law, which is what our constitution is based on.†

 

Itís based on two things, the supremacy of God, Your Honour, and the rule of law and the rule of law said that before Judge Weseloh could proceed on a trial on the items before him, on the information before him, before he could proceed on that, he had to give me an election.† He didnít do that.† He said, no, no, I will assume complete control on Mr. Stefan Marinierís suggestion and against his own best judgment and I know it was his own best judgment.† Itís in the transcript.† It was against his own best judgment but Mr. Marinier is such a powerful speaker, he convinced him and made a terrible mistake, not only in his life but in my life.† So Iíve been dragged around, Iíve been dragged around and dragged around.† Now they want you to drag me around.† I donít think thatís the kind of man you are.† You know the law.

 

If thereís the slightest doubt in the upper courts that possibly, possibly youíre going to be wasting the courtís time, youíre not the kind of person that does that.

 

So what Iím saying to you is, I donít think anyone else really has notified you of this.† I think Reverend Baldasaro has the notice of Ė that we filed on the Supreme Court of Canada.

REV. BALDASARO:† You should file this in the record.

REV. TUCKER:† If youíd mind me passing it up to Your Honour.

THE COURT: †Certainly.

REV. TUCKER:† Thank you.† Your Honour, I think in the....

THE COURT:† I guess that Ė would it be fair to say that, as I understand that what youíre saying, is that youíre saying that Justice Weseloh was in error because he proceeded on the matter and after he determined he had no jurisdiction he then turned it into a preliminary hearing?

REV. TUCKER:† After trial, after the trial was over.† There was only 15 more minutes of trial left or 20 minutes, and after the trial was over he declared it was a preliminary hearing.† What he did was he took a nullity, which as you know, if you violate jurisdiction, what youíve done up to that time is a fraud because itís a nullity from ab initio.† So what Judge Weseloh did when he initiated the trial procedure upon us without jurisdiction, he violated us ab ibinitio at that point.† So everything he did from that point on was a nullity.† To turn a nullity into a preliminary hearing is impossible because itís a nullity.† You canít take a nullity and make it into something simply because you changed the name.† It isnít a possibility and thatís what weíre saying.† Until the rule of law is followed, Your Worship, Your Lordship, until the rule of law....

THE COURT:† Your Honour, please.

REV. TUCKER:† Your Honour, until the rule of law is followed I have been violated.† Now, if the courts are part of that violation, they should not, until that violation is cleared one way or the other, they should not proceed.† Itís a further violation.

Thank you, Your Honour.† I have no more to say.

THE COURT:† Mr. Gorham.

MR. GORHAM:† Your Honour, Iíve just been handed a copy of a notice of application for leave to appeal in the Supreme Court of Canada.

THE COURT:† Yes.

MR. GORHAM:† I believe Your Honour has that copy.

Michael Baldasaro advises me that it was served on the Attorney General of Canada on Friday.

THE COURT:† Yes.

MR. GORHAM:† This is an application for leave....

THE COURT:† Under s. 40.

MR. GORHAM:† I beg your pardon?

THE COURT:† Under s. 40.

MR. GORHAM:† Under s. 40.

THE COURT:† The Supreme Court.

MR. GORHAM:† So they require leave to the Supreme Court.† They are seeking leave on a Ė from a decision at tab 4 from the Court of Appeal for Ontario.† This was discussed, or the pending decision was discussed before Justice, and forgive me, every time I pronounce his name Iím advised Iím pronouncing it wrong, Justice Stayshyn.

THE COURT:† Stayshyn.

MR. GORHAM:† I apologize again.

THE COURT:† Remember a train or bus.

MR. GORHAM:† Stayshyn.† That should be much simpler.† It was raised before Justice Stayshyn.† It was decided that his matter would be going ahead as long as the Court of Appeal didnít grant the appeal.† The Court of Appeal dismissed the appeal and this matter is now able to go ahead.

Just for the record, I strenuously object to Walter Tuckerís use of the term ďfraudĒ.† I donít think thatís a very constructive manner to proceed with this application.† It was a matter that proceeded with great difficulty before Justice Weseloh.† It was Ė it went to the Court of Appeal while Justice Weseloh was hearing the matter and my understanding is that the Court of Appeal agreed that the applicants in this matter were not able to bring an application for certiorari during the proceeding and that Justice Weseloh did have jurisdiction.† He, nonetheless, on his motion, chose to convert it to a preliminary inquiry.† He did that.† We did not appeal that and thatís where we are today.

 

But all of that to say that that has absolutely nothing to do with the actual issue before Your Honour, which is the issue of whether, which is the issue of recusal and I have no further submissions on that issue.

REV. BALDASARO:† Your Honour, I believe Judge Weseloh, the Court of Appeal, what they said, it was moot.† Thatís all.† They didnít Ė and they left it to be determined somewhere in this proceeding, probably, maybe at the end of it, whether or not Justice Weseloh in fact erred in law with respect to turning it to even having the jurisdiction to hold the trial.† So that hasnít been decided.

THE COURT:† Excuse me.† Is there an indictment here, please?

COURT REGISTRAR:† Yes, sir.

THE COURT:† I havenít seen the indictment.† Iíve seen everything but the indictment.

MR. GORHAM:† If it would assist, Your Honour, I could walk the court through the...

THE COURT:† Yes.

MR. GORHAM:† ...the test.

THE COURT:† Iím just trying to go by memory, cause I do believe that at some point there was some motion before me where, as I understand it, one time when you came to trial....

REV. BALDASARO:† 1984.

THE COURT:† No, no, no.† Iím not talking Ė Iím talking about recent history, not back then.† But I understand and I dealt with a motion fairly recently, within the last year or so...

REV. BALDASARO:† Yes.

THE COURT:† ...involving these charges.† As I understand what happened in the circumstances is that when you gentlemen appeared at Provincial Court the Crown would not proceed with the more serious charges, but wanted to proceed with lesser charges, which were in the absolute jurisdiction of the Provincial Court judge at that time and that you brought an application asking for a jury trial and I believe I sent it back because that with respect to those, I believe, five charges, those were within the absolute jurisdiction of the justice of the Ontario Court of Justice.

REV. BALDASARO:† Yes.

THE COURT:† Now I take it weíre dealing with the other two matters?

MR. GORHAM:† No, Your Honour.

THE COURT:† Or is this....

MR. GORHAM:† Itís my understanding weíre dealing with the five hand-to-hands.

REV. TUCKER:† Same things.

MR. GORHAM: †Itís just the five hand-to-hands.

THE COURT:† Five hand-to-hand?

MR. GORHAM:† Yes.

THE COURT:† All right.

REV. TUCKER:† Same things, those things youíve already ruled on, Your Honour.

THE COURT:† So what happened was when it went back from me Justice Weseloh then turned it into a preliminary hearing?

REV. BALDASARO:† Yeah.† After he said, I have no, he had no jurisdiction to hold the trial, because it was over five kilograms, and you had ruled that, put us back down and said he had jurisdiction, he went and ignored what you said, said he didnít have jurisdiction and we appealed that and thatís whatís now before the Supreme Court because they didnít want Ė they said thatís moot.

MR. BOUSHY:† Okay, Your Honour, I can...

REV. BALDASARO:† He can do it better than me.

MR. BOUSHY:† ...clarify it.

THE COURT:† Letís get to....

REV. TUCKER:† The next thing that happened was....

THE COURT:† One minute.

REV. TUCKER:† The next thing that happened was that the...

THE COURT:† Well....

REV. TUCKER:† ...Crown went before the Superior Court and said that Judge Weseloh had violated your order that he could proceed by turning it into a preliminary hearing.† It was a really screwed up thing, Your Honour, and you should read the transcripts before you make a decision.

REV. BALDASARO:† Mr. Boushy can explain....

THE COURT:† Just let Mr....

REV. BALDASARO:† Reverend Baldasaro, Your Honour.

THE COURT:† Only one of you is going to speak about the law.† All right, so I will hear from Mr. Boushy.

MR. BOUSHY:† Okay, this is what happened, Your Honour.† Thereís actually two different certiorari applications that were made and two different certi application rulings at the Superior Court in Hamilton and two separate certiorari rulings that were decided by the Ontario Court of Appeal, okay. †

 

The first certiorari application involves yourself.† What happened was on, as Your Honour will probably recall, on the 9th or 10th day of the trial, the defence believed there was a problem in the way the information was written and we argued that because of certain defects in the information that the Crown should not have been able to proceed or the court should not have been able to proceed by way of absolute jurisdiction and therefore deny the right to an election to have a jury trial, in this example, for Reverend Baldasaro and Reverend Tucker.

 

So we filed the notice of certiorari application.† Ultimately after some preliminary motions by the Crown, because when you file these certiorari applications it automatically suspends whatís going on in the interior court, so it was argued before Your Honour.† Your Honour denied the application, in which case the trial was to continue in front of Justice Weseloh.†

 

Now, we appealed your decision ultimately from the Ontario Court of Appeal, but what happened was in between the notice that was filed with the Ontario Court of Appeal to appeal your decision and the time the Ontario Court of Appeal heard the appeal, what happened was Justice Weseloh, despite your ruling against us, reversed on his own motion, reversed the course of the trial and converted it into a prelim.† Effectively making our argument, at least as it concerns the first certiorari application, moot.† So we lost the appeal because the appeal was effectively moot and I believe Justice Laskin, writing for the three judge panel, basically used that word, if I remember it correctly, on his endorsement.

 

Okay, but what happened was that after Justice Laskinís decision we, we came up with another idea, which was that despite Justice Weseloh agreeing that it should be a prelim, because he had indicated in his reasonings that he had exceeded his jurisdiction, that would should have happened is that a prelim should have been started from the very beginning.† In other words, start the whole Ė you know, you made a mistake in the way you proceeded and, therefore, letís just Ė we have to start the whole process again, because on your own motion, and based on your own reasoning, Justice Weseloh, you indicated that you had exceeded your jurisdiction.† And our argument was, well, if you exceeded your jurisdiction, okay thatís one thing, thatís what weíve been saying, but now we have to have a prelim from the beginning.

 

But what Justice Weseloh did is that he used a relatively obscure provision of the Criminal Code, specifically s. 555(1), to convert that trial into a prelim.†

 

Now if you look at s. 555, Your Honour, any Provincial Court judge or judge of the interior court can convert a trial into a prelim.† So he has, so a judge has the power to do so, okay.† Itís 555(1) says:

 

Where in any proceedings under this Part an accused is before a provincial court judge and it appears to the provincial court judge that for any reason the charge should be prosecuted by indictment, he may, at any time before the accused has entered upon his defence, decide not to adjudicate and shall thereupon inform the accused of his decision and continue the proceedings as a preliminary inquiry.

 

Okay, so any Provincial Judge can use s. 555(1) but thatís dependant upon him having jurisdiction in the first place.

 

So once he said, well, I exceeded my jurisdiction but nonetheless Iím going to convert the trial into a prelim, we argued you canít do that.† Once youíve ruled youíve exceeded your jurisdiction, youíve lost jurisdiction and, therefore, you donít even have the jurisdiction to apply s. 555.†

 

Anyhow, we then, so we therefore brought on a second certiorari application concerning the, as we thought, the illicit use of 555(1).† So there was some preliminary motions.† We ended up appearing before Justice Ė after some preliminary motions, we ended up appearing before Justice Zelinski.

THE COURT:† Yes.

MR. BOUSHY:† A justice from I think, an out of town justice from North Bay.† And Justice Zelinski issued his ruling.† It was...

REV. BALDASARO:† It was tab....

MR. BOUSHY:† ...tab 3.

THE COURT:† Yes.

MR. BOUSHY:† Now that was heard in January.

THE COURT:† Of last year.

MR. BOUSHY:† Last year.† And the decision though was released in February, 2006.† And he indicated that what Justice Weseloh did was within his jurisdiction.

 

Okay, so just as we appealed Your Honour, we then appealed Justice Zelinski, and the great thing about certiorari applications is that you donít even have to seek leave to appeal.

THE COURT:† Right.

MR. BOUSHY:† You can straight to the Ontario Court of Appeal.

THE COURT:† Yes.

MR. BOUSHY:† Okay.† So we go straight to the Ontario Court of Appeal.† They donít get Legal Aid from Hamilton because Hamilton said there was no merit.† We then appealed the Legal Aid situation to Toronto.† They said they didnít have any merit.† Yet, when we appeared before the Ontario Court of Appeal and the three judge panel headed by Justice Gouge, they were, for a good 30 or 40 minutes, puffering to our delight, the Crown Attorney, with various informative questions as to the merits of this particular appeal.† Because as often happens with Justice Ė with Reverend Baldasaro and Reverend Tucker, thereís a bit of a, perhaps, inadvertent character assassination.† But the judges wanted nothing to do with that and they wanted to hear the actual merits of the appeal, which was great.† And what happened was, instead of dismissing the appeal and simply endorsing and providing an endorsement, what they did was actually reserve....

REV. BALDASARO:† What are you looking for?

MR. BOUSHY:† The Ontario Court of Appeal decision.† They actually reserved, at tab 4.

THE COURT:† Yes.

MR. BOUSHY:† So we made that argument on August the 24th and with all due respect, instead of just dismissing the appeal on the endorsement, which one would have thought they would have done had our argument simply had no merit, they actually reserved for some 25 days before coming out with the decision that is a few pages, some 12 paragraphs.

THE COURT:† Yes.

MR. BOUSHY:† Now, ultimately denying our appeal, but the fact that they did dismiss it based on endorsement shows you, with all due respect, where Iíd ask you Ė Iíd submit to you that it shows you that thereís actually some merit to this argument.

 

Now, when you read this decision of the Ontario Court of Appeal, they donít specifically address how a judge who had indicated heíd exceeded his jurisdiction, then would have the jurisdiction to apply s. 555 to convert the matter from a trial to a prelim, and it is because we believe, respectfully, that the Ontario Court of Appeal in essence skirted the issue, if I could say so boldly, thatís why whatís happening now is that thereís currently a leave to appeal to the Supreme Court of Canada.† Now thereís no....

THE COURT:† Thatís what the leave to appeal is about.

MR. BOUSHY:† Exactly.† Thatís right.† And so the leave to appeal has been served and filed on the appropriate authorities.† Apparently that takes a few months to actually be heard.† Itís all in writing.† But the thing is, if the Supreme Court of Canada grants leave to appeal, then Reverend Baldasaro, Reverend Tucker and myself will be heading in a truck to Ottawa to argue this point.† And I think thatís the whole thing that Reverend Walter Tuckerís been pointing out to you, that if indeed thereís a leave to appeal thatís already been served and filed and if indeed there is some merit to the argument, as we respectfully believe there is, then why not, out of deference to the Supreme Court of Canada, wait to see what their ruling is on the leave to appeal.† Because the problem is this, the problem is this, thereís three different motions before Your Honour: the constitutional motion; the no valid law motion, pretrial motion; and the s. 8 pretrial motion.† Those three motions might very well last a few weeks, with all due respect, and then youíve got the trial.† So it was my understanding speaking to Elaine on the 6th floor, that Your Honour would probably hear the pretrial motions and then probably set a date for a trial, because why would one run a jury trial through the course of the Christmas season.†

 

So in light of all these complexities going on in terms of setting dates and whatnot, in light of the length of these proceedings, the estimated length of these proceedings, why not, instead of starting day Ė this was Reverend Walterís argument Ė instead of starting today, which I believe we canít do anyhow in light of the issue that was raised by my friend Mr. Gorman[sic], instead of starting the issue today, letís just adjourn this matter, put it back to the assignment court, wait for a few months and weíd be willing to waive 11(b) with regard to this specific issue, why donít we wait a few months, see if the courts grant leave to appeal.† If the Supreme Court has granted leave to the appeal then chances are my friend would probably consent to an adjournment of this trial pending the outcome of that appeal.† If they donít, then letís proceed all over again.

 

So in essence thereís two issues before Your Honour: the issue that I raised, that was actually brought to my attention by my friend†††††††††††††† Mr. Gorman[sic] concerning the reasonable apprehension of bias test; and the second issue, and perhaps the stronger issue, concerns that put forward ever so well, eloquently, by the Reverend Walter Tucker.

 

Those are my submissions, Your Honour.

THE COURT:† All right, Mr. Gorham, what do you say about the leave to appeal to the Supreme Court of Canada on this very trial?

MR. GORHAM:† Your Honour, itís the first Iíve heard of it.† Iíve been preparing for this application for four weeks now.† Iíve had numerous discussions with Mr. Boushy.† Never has he mentioned that he plans to file an application for leave to appeal to the Supreme Court.† Itís the first time that Iíve heard that this....

THE COURT:† Well, he didnít file it.† Itís filed by....

MR. GORHAM:† Itís filed by....

THE COURT:† It says here itís Reverend Brother Walter Tucker and Reverend Brother Michael Baldasaro.

MR. GORHAM:† Well, Michael Baldasaro being Peter Boushyís client.† I wish I had of been advised so that at the very least I could have prepared for a motion that theyíre making now to ask for an adjournment...

THE COURT:† Right.

MR. GORHAM:† ...for this.† This is the first Iíve heard of it.

THE COURT:† What do you say about the situation?† Do you we proceed with a trial in face of the fact that leave to appeal has been filed in respect of this trial?

MR. GORHAM:† Your Honour, itís our position that this second motion that was filed for an adjournment is completely without merit.† Itís the first time Iíve ever heard the mere fact that reasons are issued as a indication that an application to the Supreme Court might be successful.† This isnít a case where there was even a dissent.† This was a very simple matter that the court dealt with in 12 paragraphs.† It was discussed before Justice Stayshyn at the...

THE COURT:† Assignment court.

MR. GORHAM:† ...at the pretrial conference.

THE COURT:† The pretrial conference.

MR. GORHAM:† The pretrial proceedings on September the 6th, at which time the judgment had not been issued yet, but there was no indication here given before Justice Stayshyn that if they lose that they would be not willing to proceed today.† When it was before Justice Stayshyn it was set down for four weeks, starting November 27th.

 

What theyíre saying now is, if theyíd won at the Court of Appeal weíre not proceeding.† If they lose at the Court of Appeal theyíre appealing that to the Supreme Court and weíre not proceeding.† So thereís no reason why that couldnít have been raised before Justice Stayshyn back eight weeks ago.† It would have saved everyone a great deal of time.† I feel that this motion is completely without merit, however, as Mr. Boushy has already said, there is a motion before the court with respect to recusal and it tends to become six of one, half dozen of the other.† Itís not a matter that can proceed before Your Honour this morning in light of the reasons that were issued several, many years ago in fact, which unfortunately go to the very issue thatís before the court in this case.† The court will be asked in this application to decide whether or not the applicants have sincerely held religious beliefs and had you simply dismissed such an application in the past, there would be no reasonable apprehension of bias.† But because of the fact that there are comments on the record to the effect that you found, at that time, which is a different issue, you found that in 1984, whenever this was, that Michael Baldasaro was attempting to con you.† The issue before the court now is, at the present time, do they have sincerely held religious beliefs.† Thatís a different issue, however, the mere fact that there are comments on the record with respect to the prior proceedings, raises a reasonable apprehension that you have predetermined this case.

 

So itís the Crownís position that if it does not proceed today, that it be put down to the next available judge, perhaps in January.

REV. TUCKER:† I resent very much Mr. Gormanís[sic] imputation of your decision-making abilities.† I really resent that.† I told you that before, but what Iím looking at, I donít mind going to a jury trial.† You know that, Your Honour.† Iíll take a jury on anytime, anytime at all and under any judge, because I believe the jury makes the decision.† And you know that from my record in this courtroom and other courtrooms, that I am sincere in my belief.

 

Now, I am not objecting to you as my judge and I am not objecting to having a jury trial.† What I am objecting to is the rule of law in this country, and unless I have the same rights as everyone else in this country Iím being violated and so are you, Your Honour.† Iím saying that maybe we should let the Supreme Court of Canada decide.† I have no problem with you being the judge on any decision that you make. †I donít have it Ė I donít think you have a prejudice bone in your body.

THE COURT:† Thereís a lady that reported me to the judicial council and said I was prejudiced against women.† You well know the decision where I supported your spouse at that time and said that it would be a good thing if we had all women elected, instead of only half of them elected.

REV. TUCKER:† Well, I think itís a good idea because they have ideas that you and I will never have, Your Honour.

THE COURT:† All right, letís get back to the point.

MR.† TUCKER:† In this case, like I said, I believe that you, as a decision maker, I would never have a problem or an objection with yours and I resent very much....

THE COURT:† Well, but Iíve got the objection from....

REV. TUCKER:† No, no, wait a minute.† Hold on a sec.

THE COURT:† Reverend Baldasaro is objecting to it.

REV. TUCKER:† No, no, thatís what Iím objecting to.† He laid it on us.†

REV. BALDASARO:† Yeah.

REV. TUCKER:† We didnít come in here with that piece of paper.† We didnít come in here objecting to you.† He did.† And he laid it on us and said, okay, you guys should object.† I didnít object.† I never will.† He was the one that laid it on us.† He was the one that started this bullshit and Iím not going to put up with it.† Itís laying a trip on us that is not liable.† Heís laying a trip on you and itís not right and I donít agree with it and I got to put it on the record cause I donít agree with it.

THE COURT:† All right.† Mr. Boushy, what as your Ė I understood your position to be...

MR. BOUSHY:† Yes.

THE COURT:† ...that I should recuse myself because of a reasonable apprehension of bias?

MR. BOUSHY:† Indeed.† And I think Mr....

THE COURT:† Is that still the position?

MR. BOUSHY:† Yes, thatís our position for Reverend Baldasaro and I believe Mr. Gorham[sic] are ad idem.† We agree with that, because as†††††† Mr. Gorman[sic] effectively pointed out and dispassionately pointed out, if this court were to proceed you can bet your bottom dollar this would be an issue at the Court of Appeal.† And the whole - and to proceed today is completely fret with future problems for sure.† And to save the courts lots of time it would be best this matter be remanded at the very least till January with a different judge.

 

And again, thatís not to impugn your decision- making abilities and I know firsthand that the Reverend Baldasaro and Reverend Tucker speak exceedingly highly of you and I would take that definitely as a compliment, Your Honour.† But I think Mr. Gorman[sic}, whoís experienced, a lawyer in public law in Toronto, is exceedingly well-founded in this concern of his and I agree with him, with all due respect, and Iím saying this as counsel, not to Reverend Walter, but to Reverend Michael.

MR. GORHAM:† Your Honour, if I could just clarify, I did raise it to my friendís attention for the purpose of addressing the issue right at the outset.† Had Walter Tucker and Michael Baldasaro had no objections then it would have been the Crownís position that we could proceed today.† In light of the objections I donít feel that we can proceed now.†

 

There is an issue now with respect to Walter Tuckerís objection.† I donít know exactly what his position is on this, but Mr. Boushy has laid out the objection, and in light of the objection I do feel that the motion should be granted and that Your Honour should recuse yourself for the reasons that Mr. Boushy pointed out, that it will only come back to become a problem.† If the applicants stated on the record that they had no problem, then they would be very hard-pressed to raise a problem later, but having raised their objection at the outset I think itís in an abundance of caution to grant the motion.† Thatís the position of the Crown, Your Honour.

REV. TUCKER:† I just donít like the reasons.† You know what my reasons are, that itís being heard in the Superior Court and therefore your jurisdiction is vacated for the time being and that way you can do it all without all this impugntation{ph}.† I donít like that.† I think itís a terrible thing to do to a judge, especially by the Crown.

THE COURT:† As I understand, if I was to say that there is no reasonable apprehension of bias, the Crown is Ė you wish to proceed with the hearing on this other matter even though thereís already been filed from the decision of the Court of Appeal, leave to appeal to the Supreme Court of Canada?

MR. GORHAM:† Yes, itís our position that the mere fact that thereís a leave application should not hold up these proceedings.† The chances of that leave application being granted are such that itís just Ė itís not a good use of court time to waste four weeks of court time thatís been set aside merely because on the, at the 11th hour and 59th minute the applicants have filed an application for leave to appeal to the Supreme Court, which could be completely without merit.† I havenít even reviewed the document.

THE COURT:† Well, what would have to say to me if the thing come back to me and the Court of Appeal gave leave to appeal?

MR. BOUSHY:† The Supreme Court you mean, yeah.

THE COURT:† The Supreme Court of Canada.† What would you then say to me, you know?

REV. TUCKER:† Sorry, Your Honour....

THE COURT:† For instance now, in light of the fact, in light of the fact that if this matter was going to proceed Ė I know that there is a situation of jurisdiction, for example, your certiorari application suspends the jurisdiction of the Ontario Court of Justice judge until itís dealt with, and what youíre saying here is thereís been a ruling in this court thatís been appealed to the Court of Appeal.† The Court of Appeal is to, upheld the ruling, and leave is now being sought to set aside not only the ruling of the this court, but the ruling of the Ontario Court of Appeal, and I should proceed with a trial on the basis that the chances of success are not very good.

MR. GORHAM:† Your Honour, Iím a little bit at a loss as to what would happen if leave were granted and the Supreme Court were to grant the appeal.† I mean, what are they objecting to?† Are they objecting to Justice Weselohís preliminary....

THE COURT:† They may Ė as I understand the effect of it, is that the Court of Appeal would say that the whole thing was a nullity in the first place, which I doubt very much, but the Court of Appeal may say, given everything thatís transpired it should go back and restart and the Crown should proceed on the basis of indicting the accused and that they can then choose to elect how they wish to be tried.† Thatís what Iím concerned about.

REV. TUCKER:† Yes.† Yes, the law.

MR. GORHAM:† Your Honour, I think part of my problem lies in the fact that Iíve only been given this document....

THE COURT:† Well, I can understand that.† I can understand that.† Maybe youíre not aware that they can inform you that theyíve already been twice to the Supreme Court of Canada unsuccessfully, but bearing that in mind theyíve still got a third strike at this stage of the proceedings, to speak in baseball language.† But I am not Ė I would agree that the chances of the seminal part of what this is all about, being upheld by the Supreme Court of Canada, that theyíll change anything.† But the fact is this, is that there is a procedural issue.† To put them through a trial, the taxpayers through a trial, to impose a trial upon jurors thatís going to take probably four weeks, as counsel have said, simply on the basis that I donít think that theyíre going to be successful in that court would be a proper way to proceed, would be prudent.

 

What happens if weíre in the middle of the court trial and the leave to appeal is granted?† What do we do then?

MR. GORHAM:† I....

THE COURT:† Does it suspend the proceedings?

MR. GORHAM:† This whole proceeding before you this morning could have been avoided had someone mentioned this at least before Justice Stayshyn or at very least, I would be more prepared to address this matter had it been raised with me† when we met this morning with respect to the recusal issue.† It wasnít even mentioned then when we were talking about preliminary objections.† I canít stress strongly enough, Your Honour, that this is completely meritless and I wonít make any further comments because I could go on to....

THE COURT:† Well this is dated Ė it couldnít have been brought before Justice Stayshyn because the application itself is dated the 15th of November, 2006.

MR. GORHAM:† No, Your Honour, my point is that had they....

THE COURT:† They could have raised the issue.

MR. GORHAM:† Had they said before Justice Stayshyn, if we lose weíre going to file an application for leave, so letís not even think about going ahead on the 27th of November; if we win then weíve got to start all over again, so letís not even think about going ahead on the 27th of November.† Theyíve effectively wasted court time and again, I wonít make any further comments at the risk of doing as my friend suggests, assassinating their characters.

THE COURT:† Reverend Tucker.

REV. TUCKER:† I am glad that heís not going to make anymore comments, Your Honour, because you know, this whole thing would have been okay if the Crown had not usurped such perfidy in withdrawing the original charges and leaving us with the five.† If you remember, Your Honour, you know the history of this thing as well as I do.† If they say that they were sandbagged, how do you think we were sandbagged when we walked in expecting to have a preliminary hearing and we were put to trial.† They withdrew what we were supposed to have a preliminary hearing on and we were put to trial in front of Judge Weseloh.† Now, if that isnít sandbagging, what is?† And here they are complaining all this way down the road, oh, Your Honour, we as lawyers were sandbagged by these poor jerks from the outlying place of Hamilton, like the poor Toronto lawyer was sandbagged by a couple of bumpkins from Hamilton.† Isnít that horrible, when they did it to us first.† Isnít that horrible.

REV. BALDASARO:† Your Honour, I was put through a seven day trial, a preliminary I wouldnít have even had.† I would have just gone to trial by jury.

THE COURT:† All right.† Letís deal with the other part of the application, about the reasonable apprehension of bias.† Itís like Ė I note that thereís two reasons for sentence.† The issue, as I recall, in the trial did not come up.† I believe that was now Reverend Baldasaro Ė at that time he wasnít Reverend Baldasaro but I believe it was....

REV. BALDASARO:† Oh, I was, Your Honour, and you just wouldnít recognize it then.

THE COURT:† I didnít think at that Ė I thought you were just a young covert at that time, that you had not attained the status.† Itís subsequently.† This is, I believe, your first trial in the court.

REV. BALDASARO:† Yes.† I was charged in 1980 and Judge Stiles had a preliminary hearing and some constitutional questions.

THE COURT:† It was probably earlier than 1984.† I think I dealt with this probably in í83, shortly after....

REV. BALDASARO:† I went to jail in 1984.† I believe this transcript is Ė thatís when you sent me to my first seminary.

THE COURT:† All right.† In any event...

REV. BALDASARO:† Your Honour....

THE COURT:† I was about to say, that back in those days there was a Soviet Union.† There no longer is a Soviet Union.

REV. BALDASARO:† If Your Honour feels that heís not bias, the Crown is the one who raised that.† I knew it was a little bit of a concern because I remember it and I didnít know what youíd have to say about it, but he brought this transcript this morning.† I think weíve come to know each other over the years somewhat.

THE COURT:† Well, the thing that concerned Ė as I understand, one of the issues from counsel, is that I would have to determine as part of whether or not....

REV. BALDASARO:† The appearance of bias.

THE COURT:† Your religious belief - I thought Ė or is that something for the jury?

REV. BALDASARO::† No, you.† He claimed Ė I think itís for the jury.

MR. BOUSHY:† No, no, Your Honour, I can explain the law to you.† Itís at page 56 of Syndicat Northcrest v. Amslem.

THE COURT:† Whereís....

MR. BOUSHY:† Okay, thereís an application record/book of authorities, constitutional issue Ė freedom of religion.

THE COURT:† Okay.

MR. BOUSHY:† Okay?

THE COURT:† Yes.

MR. BOUSHY:† And....

THE COURT:† Is that Syndicat Northcrest v. Amslem?

MR. BOUSHY:† Yes, sir.† Now, itís a judgment that came down 20 years after your comments with regard to your reasons for sentence with regard to Reverend Baldasaro and if you look at paragraph 56 of tab 4, Your Honour Ė well, actually letís start at paragraph 52.

THE COURT:† Fifty-two?

MR. BOUSHY:† Yes, sir.† Okay, the Justice Iacobucci is referring to American jurisprudence and he basically adopts what the constitutional law scholar Professor Laurence Tribe has to say in this area, mind you heís an American scholar, paragraph 2:

 

According to American constitutional law scholar Professor Laurence Tribe, the jurisprudence in this area evinces that inquiries into a claimantís sincerity must be as limited as possible.

 

So heís talking about how the courts go about assessing sincerity of belief and that itís got to be strictly construed and simply focus on that assessment.†

 

Later on in the bottom paragraph there, page 50 or paragraph 52:

 

Indeed, the courtís role in assessing sincerity is intended only to ensure that a presently asserted religious belief is in good faith, neither fictitious nor capricious, and that it is not an artifice.

 

In other words, not a con.

 

Otherwise, nothing short of a religious inquisition would be required to decipher the innermost beliefs of human beings.

 

And then he goes on about the courtís inquiry in this nature at the bottom of paragraph 53:

 

Because of the vacillating nature of religious belief, a courtís inquiry into sincerity, if anything, should focus not on past practice or past belief but on a personís belief at the time of the alleged interference with his or her religious belief.

 

And then the seminal part here concerning the two stage process is outlined in paragraph 56:

 

Thus, at the first stage of a religious freedom analysis, an individual advancing an issue premised upon a freedom of religion claim must show the court...

 

So the applicants must show the court that:

 

a) he or she has a practice or belief, having a nexus with religion...

 

Okay, and goes on in detail about what that is.

 

And (2) he or she is sincere in his or her belief.† Only then will freedom of religion be triggered.

 

So itís very clear, based on the reasoning of Justice Iacobucci in Syndicat Northcrest v. Amslem, followed by the Multani case at tab 6, that in the first stage of the religious freedom analysis the court has to assess, amongst other things, the sincerity of the applicantís belief.

 

And it is because of that first stage, Your Honour, in light of Your Honourís previous comments, in which you mention the word ďconĒ some five times, there is a reasonable apprehension of bias.† Iím not saying that youíre actually - but weíre not arguing youíre actually bias.† Thatís not the test.

THE COURT:† No, no, I know youíre not arguing actual bias.

MR. BOUSHY:† Yes, sir.† Right.

THE COURT:† But youíre talking about two cases, Multani v. the Commission scolaire...

MR. BOUSHY:† Right.

THE COURT:† Marguerite-Bourgeoys.

MR. BOUSHY:† Yes.

THE COURT:† And the other case youíre talking is....

MR. BOUSHY:† Amslem.

THE COURT:† Yes.† Syndicat Northcrest v Amslem.

MR. BOUSHY:† Thatís correct.

THE COURT:† Yes.

MR. BOUSHY:† Yeah.

THE COURT:† Which are cases in which the court, the judge of the law and the trier of fact was indeed the judge.

MR. BOUSHY:† Yes.

THE COURT:† All right.

MR. BOUSHY:† Yes.

THE COURT:† What youíre saying is - are you proposing that there would be a voir dire?

MR. BOUSHY:† Thatís right, yes, sir.

THE COURT:† In order for the judge to determine whether or not the belief is held sincerely?

MR. BOUSHY:† Thatís right.† Itís....

THE COURT:† Before Ė what would then prevent them, the defendants, from raising that as part of their defence?

MR. BOUSHY:† Because what weíre asking for is a Ė see, ultimately thatís Ė okay, thatís a good point, Your Honour, but ultimately as it concerns this pre-trial motion, pursuant to the notice, what weíre asking for, Your Honour, is to strike down the provisions of the C.D.S.A basically for overbradth or in the alternative, ask for a constitutional exemption or a common law exemption of the church.† So this is a legal issue before Your Honour.† Now....

THE COURT:† But itís a legal issue, like whether or not Ė itís something them tell them as a matter of law.† The jury found as a fact...

MR. BOUSHY:† Yes.

THE COURT:† ...that they had this belief, then they could do certain things, but itís not one where I would find.

MR. BOUSHY:† But the jurist canít strike.† What weíre asking, this motion concerns Your Honour, at this stage Your Honour striking down....

THE CCOURT:† Thatís because itís Ė thatís - I suggest to you...

MR. BOUSHY:† Yeah.

THE COURT:† ...that because itís heard in a different environment than a criminal jury trial Ė these are board applications, in which itís strictly a judge alone and when theyíre referring to the court, theyíre referring to the court, meaning judge alone.† In this jury case...

MR. BOUSHY:† Yes.

THE COURT:† ...Iím the judge of the law.† Iím not the finder of any facts.

MR. BOUSHY:† True, Your Honour, but the jury does not, as a trier of fact, does not have the power to have a provision to declare it unconstitutional, which is what weíre asking for.† This motion concerns an application to have this court, as a court of law, declare unconstitutional and in violation of s. (2) of the Charter the particular provisions of the C.D.S.A. that apply and in the alternative ask for a constitutional exemption.† That can only be done by the judge, not by the jury.

 

Now, thereís a whole other issue too, Your Honour, as to whether the jurors believe, in their honesty of belief perhaps, in a religious argument wrapped up in a defence of necessity, but as it concerns this specific application, only the trial judge can decide that.† And I believe my friend is in agreement, and heís the constitutional law expert here, Your Honour, not I.† But my friend would be in a better position to speak to this matter.

MR. GORHAM:† Mr. Boushyís being very kind, but I Ė it is my understanding, Your Honour, that this is a constitutional application that will be heard by judge alone, and in your capacity as the applications judge in this matter, you have the power to make findings of facts with respect to the issues raised in that application, and itís an application that is to be heard by judge alone.† Thatís our....

THE COURT:† As I see it....

MR. GORHAM:† I can understand your position.

THE COURT:† I see Ė I see the situation where I can make all the findings in the world and the jury could say, sorry, weíll do what we want, you know, we believe that their beliefs are valid and....

REV. TUCKER:† Youíre right.† Absolutely.

MR. GORHAM:† Well, as Mr. Boushy pointed out, the constitutional issue is not one to be put before the jury.† Itís to be put before the judge alone in a constitutional application and that was contemplated by all the parties when we were preparing for this.† This week was set aside to deal with the constitutional application, and it was discussed that the jury would definitely not be impaneled until after the pretrial applications were dealt....

THE COURT:† I understand that.† I understand that.

MR. GORHAM:† Yeah.†

THE COURT:† And do you think that there would be the five days, would suffice simply on that issue?

MR. GORHAM:† Well, thereís an issue as to how many witnesses would be called and how - the length of the evidence that we put....

THE COURT:† I understand that one of the evidential requirements is that there must be some expert evidence to suggest that it meets the so-called criteria.

MR. GORHAM:† Thatís right.† We have filed a notice of intent to call Professor Harold Kallant, whoís a professor of pharmacology from the University of Toronto.† We filed a....

THE COURT:† Professor of what?

MR. GORHAM:† I believe itís, I believe itís pharmacology.† Iíve got his Ė in the applicantís respondent record is the affidavit and expert report.

THE COURT:† I havenít seen that.† Thatís another thing.† I donít think Ė I havenít had any federal filings and even the document that I did receive is unsigned by Mr....

MR. GORHAM:† Yeah, Your Honour should have the respondentís application record.

THE COURT:† Thereís a single document there thatís in that file.† I know I saw a document this morning that had Ė oh, yeah, here it is.† Itís a notice of response that was filed in the court.

MR. BOUSHY:† Sorry, Your Honour, that notice of response concerns the s. 8 argument thatís going to be argued by Lou Strezos for the Crown.† That doesnít concern Mr. Gorham.

THE COURT:† Oh.

MR. BOUSHY:† See, thereís two different Crowns here.† Mr. Gorhamís handling the constitutional matter.† Thereís another Crown whoís supposed to handle the s. 8 argument, and thatís a notice, but we still havenít received a response, an actual respondentís factum with regard to our other two motions.

THE COURT:† Well, in any event, in any event, itís unsigned.

MR. GORHAM:† I will....

THE COURT:† Mr. Strezos has not signed it.

MR. GORHAM:† I will bring it to Mr. Strezosí attention.† Just by way of explanation,††††††† Mr. Strezos, obviously when this court time was set aside, obviously set it aside in his calendar as well.† In the interim, after this court date was set he had a matter that was before the Court of Appeal that was originally set for earlier in the fall and the court changed it to this date and it was something that had been outstanding for many, many years, so thatís why before Justice Stayshyn they decided that this first week would simply be set aside for the constitutional application on freedom of religion, so that I could deal with that while Mr. Strezos is before the Court of Appeal.† But I will bring to his attention his lack of signature.

THE COURT:† Well, I took a quick look at his qualifications and the affidavit in support of his qualifications.† It says all, everything about what the use of marihuana does, et cetera, et cetera, but how does that, how is that helpful in determining whether or not they believe that marihuana is the sacrament?

MR. GORHAM:† Well, an expert could not give you evidence on the sincerity of the applicantís beliefs.† The only evidence that could be used


†for you to adjudge the sincerity of the belief is the evidence given by the applicantís themselves taking the stand.† The expert evidence that we filed is with respect to the Crownís obligations under s. 1 to justify the prohibition.† So weíve set out in our s. 1...

THE COURT:† Oh, all right.

MR. GORHAM:† ...evidence why itís, why it should be justified.

 

†††††††††††† R U L I N G

 

BORKOVICH, J.† (Orally)

Well, in any event, I do not think the matter should proceed as a trial until the leave to appeal application has been disposed of.

 

MR. BOUSHY:† In light of that ruling, Your Honour, can this matter be remanded to the assignment court, say, in January?

THE COURT:† Yes.

MR. BOUSHY:† Thank you, sir.

THE COURT:† There are, there are two indictments before me.

MR. BOUSHY:† It said on the board off the sixth floor, but it should just be one indictment, with all due respect, Your Honour.

THE COURT:† Oh, all right.† One is such a good copy it appears that itís an original.† Thatís Ė obviously Ė is there more than one pretrial here?

MR. BOUSHY:† Thereís been a few, Your Honour.


THE COURT:† Well, I just note thereís an endorsement here signed by Justice Festeryga and you mentioned Justice Stayshyn, so perhaps the wrong justice was mentioned?

MR. BOUSHY:† I donít know.† This case has been going on for so long, Your Honour.† Iím a bit confused myself as to all these different judges weíve appeared before.† On the certiorari application, between the two, weíve appeared before 16 different judges between the Superior Court and Ontario Court of Appeal.

REV. TUCKER:† What a waste of time and money.

THE COURT:† To the 27th?

COURT REGISTRAR:† It would be the 19th of January.† Thatís the next assignment court, Your Honour.† Itís the 27th today.

THE COURT:† In the abundance of caution, I have a little query.† If I, in the abundance of caution put down the reasons that it might be, that there is a reasonable apprehension of bias, does that mean that I wonít have any more dealings with the two, or I wonít have any more dealings with you, Reverend Baldasaro?

REV. TUCKER:† I donít want that.† I donít like you to put that down.† Thatís not fair.† Itís not right.† I donít feel that.

MR. GORHAM:† If perhaps we could put it down to the next available date, Your Honour, because as...

THE COURT:† Well, in any event....

MR. GORHAM:† ...you can obviously appreciate, this....

THE COURT:† In any event, IĎll put it over to Ė whatís the assignment court in January?

COURT REGISTRAR:† January 19th, Your Honour.

MR. GORHAM:† If I could just raise it to your attention, this notice of application for leave to appeal to the Supreme Court has been served.† I donít know if itís been filed.† I donít know if itís been accepted by the Supreme Court.† I donít know if it will be accepted by the Supreme Court...

THE COURT:† Well, I mean...

MR. GORHAM:† ...so perhaps we could....

THE COURT:† ...at least when you come back on January 8th[sic] youíll know whatís happened.

MR. GORHAM:† Yes, Your Honour.

REV. TUCKER:† Thatís right, Your Honour.

THE COURT:† Sorry, not January Ė whatís the date?† Whatís the assignment court?

COURT REGISTRAR:† The assignment court of January 19th.

MR. BOUSHY:† Your Honour, if I could point out, just one Ė something very quickly.† Thereís only a reasonable apprehension of bias, Your Honour, concerning you hearing the constitutional argument.† It could very well be in the future, and Iím speculating here, that one judge might hear the pretrial arguments and another judge actually hear the Ė preside over the jury trial.† But I can say to Your Honour that my clients are, or that the Reverend Baldasaro Ė thereís only a reasonable apprehension of bias as it concerns the constitutional argument, not as it concerns you as the trial judge.

REV. BALDASARO:† Well, Your Honour, I donít....

THE COURT:† Thatís pretty good because every one of their cases is based on that same...

REV. TUCKER:† Yes, yes.†

THE COURT:† ...premise.

REV. TUCKER:† Yes.

THE COURT:† Theyíre excused by virtue of the fact that itís a sacrament of the church and the law doesnít apply to them, so that excludes me from all cases then.

REV. BALDASARO:† Does it?

MR. BOUSHY:† Well, maybe we could argue that at another point in the future, Your Honour, but definitely for the constitutional issue.

THE COURT:† All right, then....

REV. TUCKER:† But you didnít put down that you were biased, right?† You didnít put that down?

THE COURT:† I didnít put down that Iím biased.

REV. TUCKER:† Good.† No.

REV. BALDASARO:† I donít think you are, Your Honour.

THE COURT:† I know.† Weíre not concerned about actual bias.

REV. BALDASARO:† Right.

THE COURT:† Weíre concerned about a reasonable apprehension of bias.

REV. TUCKER:† I donít have it.

REV. BALDASARO:† I donít have it either, Your Honour.

THE COURT:† But see, the criteria, the criteria is whether the ordinary person....

REV. BALDASARO:† Might have the appearance....

THE COURT:† Might have a reasonable apprehension.

REV. TUCKER:† Somebody that doesnít know you as well as we do, Your Honour.

THE COURT:† Probably, yeah.

REV. BALDASARO:† Iíd like it to end with you, Your Honour.† It started here.

THE COURT:† Iíll put this matter over to Ė youíre both remanded to January 19th, 2007 at 10:00 a.m. to fix a trial date.

MR. BOUSHY:† Thank you.

THE COURT:† Hopefully by then when youíve fixed the trial date youíll have some....

MR. BOUSHY:† Hopefully weíll have heard back from the Supreme Court of Canada, Your Honour.

THE COURT:† Yes.

REV. BALDASARO:† Yes.

MR. BOUSHY:† Hopefully.

THE COURT:† One way or the other.

REV. TUCKER:† Thank you, Your Honour.

MR. BOUSHY:† Yes.† Hopefully weíll hear back from them, Your Honour.

MR. GORHAM:† We wonít hear back on the merits of the application by then.

THE COURT:† Oh, yes.

MR. GORHAM:† Definitely.† It will be eight to nine months.

THE COURT:† Oh, no, I donít need to endorse the applications cause they go over with....

REV. TUCKER:† And I want you to understand before you leave that we, under no circumstances, had any intention of bringing any application against you.

REV. BALDASARO:† No.

THE COURT:† Iím aware of that.

REV. TUCKER:† Thank you, Your Honour.

MR. BOUSHY:† In essence, what theyíre truly trying to say is that they love you, Your Honour.

REV. TUCKER:† No, no, we wouldnít go that far, but we like you a lot.

REV. BALDASARO:† Well, Your Honour, yes, and maybe....

MR. BOUSHY:† Thank you very much, Your Honour.

THE COURT:† Well, I take two people off my list of people who love me.

REV. BALDASARO:† Oh, I love you, Your Honour.

COURT REGISTRAR:† Order.

REV. TUCKER:† As our brother we love you, but....

MR. BOUSHY:† They love you, Your Honour.

REV. TUCKER:† Youíre a judge.† Weíre not allowed to call you brother.

REV. BALDASARO:† Have a good day.† God bless.

 

...WHEREUPON THESE PROCEEDINGS WERE ADJOURNED

 

FORM 2

Certificate of Transcript

Evidence Act, Subsection 5(2)

 

I, Michele Wild, certify that this document is a true and

accurate transcription of the Proceedings of R. v. Baldasaro and Tucker in the Superior Court of Justice held at John Sopinka Court House, 45 Main Street East, Hamilton, Ontario on November 27, 2006, taken from recording No. 4799-608-293/2006, which has been certified in Form 1.

 

 

__________________††††††††† __________________________________

†††† (Date)††††††††††††††††† (Signature of authorized person)

 

Transcript Ordered:††††††† November 27, 2006

Transcript Completed:††††† December 18, 2006

Ordering Party Notified:††