CROWN |
Prerogatives |
Blanco v. Canada
T-236-03
2003 FCT 263, Heneghan J.
28/2/03
8 pp.
Plaintiff commenced action against defendant seeking injunction restraining defendant from sending armed forces to war in Republic of Iraq without consent of Parliament of Canada--Plaintiff then brought notice of motion seeking interim injunction against defendant, pending full trial on statement of claim--Defendant raised preliminary objection to jurisdiction of Federal Court to grant injunctive relief against Crown and by order, Justice Campbell J. ordered hearing of motion be adjourned, to allow parties opportunity to address jurisdictional question raised by defendant--First, current motion premature--Second, plaintiff must show justiciable cause of action--Thrust of plaintiff's statement of claim relating to potential assumption of arms by Canada--Such decision would fall under heading of high policy--Executive decisions to sign treaty or to declare war matters of high policy--When matters of high policy concerned, public policy and public interest considerations far outweigh rights of individuals or legitimate expectations-- Apart from Charter claims, decisions not judicially reviewable --Decision of Canadian Government, in exercise of prerogative powers, in absence of Charter challenge, would not be justiciable--No Charter challenge raised in present case--Third, plaintiff's reliance upon Act of Settlement in present case misplaced--Legislation, Act of Parliament at Westminster, not applying to regulate exercise of prerogative power by Government of Canada in matters of high policy and use of armed forces--In present instance, plaintiff attempting to prevent making of high policy decision involving exercise of Crown prerogative--Plaintiff not raising any Charter challenge--No basis upon which to grant relief sought by plaintiff in present motion--Motion dismissed--Act of Settlement (The), 1700 (U.K.), 12 & 13 Will. III, c. 2-- Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44].