T-1679-83
Operation Dismantle Inc., Canadian Union of
Public Employees, Canadian Union of Postal
Workers, National Union of Provincial Govern
ment Employees, Ontario Federation of Labour,
Arts for Peace, Canadian Peace Research and
Education Association, World Federalists of
Canada, Alberni Valley Coalition for Nuclear Dis
armament, Comox Valley Nuclear Responsibility
Society, Cranbrook Citizens for Nuclear Disarma
ment, Peace Education Network, Windsor Coali
tion for Disarmament, Union of Spiritual Com
munities of Christ Committee for World Dis
armament and Peace, Against Cruise Testing
Coalition, B.C. Voice of Women, National Action
Committee on the Status of Women, Carman
Nuclear Disarmament Committee, Project Sur
vival, Denman Island Peace Group, Thunder Bay
Coalition for Peace and Nuclear Disarmament,
Muskoka Peace Group, Global Citizens' Associa
tion, Physicians for Social Responsibility (Mon-
treal Branch) (Plaintiffs)
v.
The Queen, the Right Honourable Prime Minis
ter, the Attorney General of Canada, the Secre
tary of State for External Affairs, the Minister of
Defence (Defendants)
Trial Division, Cattanach, J.—Ottawa, September
15 and 27, 1983.
Constitutional law — Charter of Rights — Motion to strike
statement of claim as disclosing no reasonable cause of action
— Plaintiffs seeking declaration that decision of defendants to
permit testing of cruise missiles in Canada unconstitutional on
ground it violates rights guaranteed under Charter — Allega
tion by defendants that decision made by Government in
executive capacity and not subject to control by judicial
branch — Motion denied — Executive decisions of Govern
ment subject to Charter by virtue of s. 32(1)(a) of Charter and
s. 52(1) of Constitution Act, 1982 — Primacy of Constitution
of Canada under s. 52(1) and application of Charter to Parlia
ment and Government of Canada under s. 32(1)(a) — Princi
ples of supremacy of Parliament and separation of powers
diluted to extent that Parliament and Government of Canada
cannot breach rights guaranteed under Charter — Language of
s. 32(1)(a) clear and for Court to hold Charter not applicable
to matters decided on basis of policy would be equivalent to
assuming function of legislator — Constitutional validity of
Act of Parliament subject to challenge by individual: Thorson
v. The Attorney General of Canada et al., /19751 1 S.C.R. 138
— Jurisdiction of Court over decision under attack conferred
by s. 24(1) of Charter — Rights guaranteed under s. 7 of
Charter subject to reasonable limits under s. l of Charter
Whether such limitation applicable proper subject matter of
defence — Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.), s. 52(1) — Canadian Charter of
Rights and Freedoms, being Part I of the Constitution Act,
1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.), ss. 1,
7, 24(1), 32(1)(a) — Act of Settlement 1701, 12 & 13 Will. 3
c. 2 — Bill of Rights 1688, 1 Will. & Mar. Sess. 2 c. 2 —
Federal Court Rules 302, 408, 419(1)(a),(c),(f).
The defendants move to strike out the plaintiffs' statement of
claim and to dismiss the action pursuant to Rule 419(1) as it
discloses no reasonable cause of action. The plaintiffs seek, by
statement of claim, a declaration that the decision of the
defendants to permit a foreign power to test cruise missiles in
Canada is unconstitutional on the ground that it violates the
rights guaranteed in the Canadian Charter of Rights and
Freedoms. The plaintiffs also seek, as consequential relief, an
injunction and damages. The defendants argue that the deci
sion to permit the testing of cruise missiles was made by the
Government of Canada in its executive capacity, that it was
based upon policy and expediency and that, as such, it was not
subject to control by the judicial branch.
Held, the motion is denied. By virtue of subsection 52(1) of
the Constitution Act, 1982 and paragraph 32(1)(a) of the
Canadian Charter of Rights and Freedoms, the executive
decisions of the Government of Canada are subject to the
Charter. Subsection 52(1) provides that the Constitution of
Canada is the supreme law of Canada and paragraph 32(1)(a),
that the Charter applies to Parliament and the Government of
Canada. It follows that the basic principle of the unwritten
Canadian Constitution heretofore existing as to the supremacy
of Parliament —a principle of English law well settled since the
deposition of James II, which was imported into Canada and
which existed in the said unwritten Canadian Constitution as a
convention—is diluted to the extent that Parliament and the
Government of Canada cannot breach the rights guaranteed by
the Charter. The defendants' argument would have been sus
tainable had the decision challenged been made prior to the
enactment of the Charter. However, subsection 32(1)(a) of the
Charter authorizes Parliament to say that it is not supreme in
certain instances and to say that the Government of Canada is
likewise subject to the Charter. To interpret the clear and
unequivocal words of section 32 to the effect that the Charter
should not apply to matters decided on the basis of policy would
be to abandon the role of judge and assume the function of a
legislator. The words "Government of Canada" in paragraph
32(1)(a) may be read as the Cabinet, and it is the function of
the Cabinet to implement the policies and decisions made by
the government of' the day. Thus, the watertight compartments
of the separation of powers, as established by the Act of
Settlement 1701, are breached by paragraph 32(1)(a) in that
executive decisions of the Government of Canada are subject to
judicial review in cases of violation of the rights guaranteed by
the Charter. A question of alleged excess of legislative power is
a justiciable one and an individual may challenge the constitu
tional validity of an Act of Parliament: Thorson v. The Attor
ney General of Canada et al., [1975] 1 S.C.R. 138. Subsection
24(1) of the Charter gives this Court jurisdiction over the
decision under attack, and the rights referred to in that subsec
tion are those guaranteed by section 7 of the Charter, subject
only "to such reasonable limits prescribed by law as can be
demonstrably justified in a free and democratic society" pursu
ant to section 1 of the Charter. The question whether such a
limitation applies in the instant case is a proper subject of
defence.
CASES JUDICIALLY CONSIDERED
FOLLOWED:
Thorson v. The Attorney General of Canada et al.,
[1975] 1 S.C.R. 138.
APPLIED:
Rylands v. Fletcher (1866), Law Rep. 1 Ex. 265; (1868),
Law Rep. 3 H.L. 330.
COUNSEL:
L. Greenspon and I. Cotler for plaintiffs.
G. Garton for defendants.
SOLICITORS:
Karam, Tannis, Greenspon, Vanier, for
plaintiffs.
Deputy Attorney General of Canada for
defendants.
The following are the reasons for judgment
rendered in English by
CATTANACH J.: The plaintiffs herein by state
ment of claim dated July 19, 1983 and filed on
July 20, 1983 seek a declaration that the decision
of the defendants, jointly or severally made,
whereby it was agreed and whereby permission has
been accorded to a foreign sovereign power and
ally to test cruise missiles within the territorial
limits of Canada is unconstitutional as being in
violation of rights guaranteed in Schedule B to the
Canada Act 1982, 1982, c. 11 (U.K.) entitled the
Constitution Act, 1982, particularly the Canadian
Charter of Rights and Freedoms constituting Part
I thereof.
In addition to the declaratory relief so sought
the plaintiffs seek other consequential relief in the
nature of an injunction and damages which may or
may not be available to them.
By notice of motion dated August 11, 1983 the
defendants moved to strike out the plaintiffs' state
ment of claim and to dismiss the action pursuant
to Rule 419(1) as disclosing no reasonable cause of
action within paragraph (1)(a) of the Rule as well
as being frivolous and vexatious within paragraph
(1)(c) and as constituting an abuse of the process
of the Court within paragraph (1)(f).
The contention advanced on behalf of the
defendants was limited to the ground that the
statement of claim disclosed no cause of action and
the effect of the motion so brought to dismiss the
action contemplates the striking out of the state
ment of claim in its entirety, without leave to
amend.
The additional two grounds were ancillary and
supplementary to the first and in actuality the first
ground is the only ground relied upon. No evidence
by way of affidavit was adduced in support of the
two additional grounds.
When a statement of claim is sought to be
struck out under paragraph (1)(a) of Rule 419 as
disclosing no reasonable cause of action no evi
dence is admissible in support of the application.
The reason therefor is obvious. The statement of
claim stands or falls upon the allegations of fact
contained therein.
By virtue of Rule 408 a statement of claim must
contain a precise statement of the material facts
upon which the plaintiff relies. The statement of
claim is limited to the pleading of material facts. It
shall not plead conclusions of law or fact, evidence
or conjecture.
The cardinal principle of long standing is that a
statement of claim will not be struck out if the
allegations of fact alleged therein are susceptible
of constituting the scintilla of a cause of action.
The British are not so much without a written
constitution as they profess to be and further a
constitution exists without being reduced to
writing.
One such principle basic to the English constitu
tion is the sovereignty of Parliament. That princi
ple of English law was imported into Canada and
existed in the unwritten Canadian Constitution as
a convention.
Upon the advent of Confederation the Parlia
ment of Canada and the Legislatures of the Prov
inces within their respective spheres of jurisdiction
remained supreme.
The supremacy of Parliament was settled
beyond question when James II was deposed and
succeeded by his daughter Mary and her husband,
William of Orange.
The Bill of Rights 1688, 1 Will. & Mar. Sess. 2
c. 2, so resolved the supremacy of Parliament and
the Act of Settlement 1701, 12 & 13 Will. 3 c. 2,
is also looked upon as the foundation of the sepa
ration of powers among the three branches of
government.
Those three branches are:
(1) the legislative branch, the primary function
of which is to make or change the laws; it is the
Sovereign acting in Parliament;
(2) the executive branch, the primary function
of which is to carry on the business of govern
ment; and
(3) the judicial branch which interprets the law
which is done in the settlement of disputes be
tween litigants by the finding of facts and apply
ing the law and legal rules to the facts as found.
The very fundamental contention advanced on
behalf of the defendants for striking out the plain
tiffs' statement of claim is that the decision to
permit the testing of the cruise missile in Canada
was one made by the Government of Canada in
its executive capacity based upon policy and
expediency and as such is not subject to control or
interference from the judicial branch.
Had the decision here in question been made
prior to the enactment and proclamation of the
Canadian Charter of Rights and Freedoms I could
not agree more with the validity of that contention.
In the remote likelihood that any solicitor would
have launched such an action, that action would
have been summarily dismissed as the present
statement of claim is sought to be dismissed.
But the decision which the present statement of
claim seeks to impugn was made after the Canadi-
an Charter of Rights and Freedoms came into
force and the decision is alleged to violate those
rights.
Subsection 52(1) of the Constitution Act, 1982
provides:
52. (1) The Constitution of Canada is the supreme law of
Canada, and any law that is inconsistent with the provisions of
the Constitution is, to the extent of the inconsistency, of no
force or effect.
Paragraph 32(1)(a), ranged under the heading
Application of Charter to which reference may be
had to interpret sections following thereunder,
which in Part I under the title Canadian Charter
of Rights and Freedoms, provides:
32. (1) This Charter applies
(a) to the Parliament and government of Canada in respect
of all matters within the authority of Parliament including all
matters relating to the Yukon Territory and Northwest
Territories;
Thus the basic principle of the unwritten
Canadian Constitution heretofore existing as to
the supremacy of Parliament is diluted or eroded
to the extent that Parliament and the Government
of Canada cannot breach the rights and freedoms
guaranteed by the Charter.
Parliament is supreme and it is within the
competence of Parliament to say that it is not
supreme in certain instances as it has done in
paragraph (a) of subsection 32(1) of the Charter
as well as to say that the Government of Canada is
likewise subject to the Canadian Charter of Rights
and Freedoms.
In the light of the plain meaning of the language
of section 32, expressed in clear and unequivocal
terms, to ignore that meaning and ascribe to those
words a different meaning to the effect that the
Charter should not apply to matters decided on the
basis of policy is to abandon the role of a judge
and assume the function of a legislator. No such
exception is made. However a method is provided
in section 33 of the Charter which applies to
legislation and would apply to executive action if
within the legislation. That method was not
adopted.
Limitations are imposed in section 1 of the
Charter which will be the subject of specific com
ment later.
The words "Government of Canada" may be
interpreted and read as the Cabinet, which by
convention is a committee of Parliament.
The Cabinet acts in an executive way to imple
ment the policies and decisions made by the Gov
ernment of the day.
Thus, too, the watertight compartments of the
separation of powers are likewise breached by
paragraph 32(1)(a) in that executive decisions of
the Government of Canada are subject to the
Canadian Charter of Rights and Freedoms and if
these decisions offend against the rights and free
doms guaranteed thereby, are subject to judicial
review.
In Thorson v. The Attorney General of Canada
et al., [ 1975] 1 S.C.R. 138 it was held that an
individual has the status and the right to challenge
the constitutional validity of an Act of Parliament.
A question of alleged excess of legislative power is
a justiciable one.
It is but a short and logical step to take to
conclude that in the light of the clear and
unequivocal language of paragraph 32(1)(a) of the
Charter that the Charter is applicable to the Gov
ernment of Canada in the event of an executive
decision being taken which is in breach of the
rights and freedoms guaranteed by the Charter.
This Court did not arrogate unto itself jurisdic
tion over the decision taken by the Government of
Canada herein.
Rather that jurisdiction has been thrust upon
the Court by subsection 24(1) of the Canadian
Charter of Rights and Freedoms which reads:
24. (1) Anyone whose rights or freedoms, as guaranteed by
this Charter, have been infringed or denied may apply to a
court of competent jurisdiction to obtain such remedy as the
court considers appropriate and just in the circumstances.
This, in turn, raised the question as to what
rights and freedoms have been infringed which,
when posed, elicited the response of those guaran
teed in section 7 which reads:
7. Everyone has the right to life, liberty and security of the
person and the right not to be deprived thereof except in
accordance with the principles of fundamental justice.
It is not incumbent upon me to proffer an
interpretation of the words "in accordance with
the principles of fundamental justice" other than
to hazard the view that the words "fundamental
justice" may be synonymous with words such as
"natural justice".
In that event should this be a case where nation
al security is involved and the state is endangered
then our cherished freedom of the individual and
doing justice to him must in the last resort take
second place to the security of the country itself.
If that should be the case it is the proper subject
of defence.
Section 1 of the Canadian Charter of Rights
and Freedoms reads:
1. The Canadian Charter of Rights and Freedoms guaran
tees the rights and freedoms set out in it subject only to such
reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society.
Whether the limitation so imposed upon the
guarantee exists is, in my view, the proper subject
of defence.
Accepting as I have the premise that the pur
pose of the motion was to strike out the statement
of claim in its entirety and dismiss the action I
directed my attention primarily to ascertaining if
the germ of a cause of action was alleged in the
statement of claim.
In so doing I did not overlook that in many
instances there are technical defects in the manner
of pleading which can be corrected by appropriate
amendments and responses to demands for further
and better particulars.
I also entertained reservations as to the availa
bility of some of the remedies sought, other than
the declaration, against one or other of the
defendants.
By virtue of Rule 302 no proceeding in this
Court shall be defeated by mere formal objection,
none of which was made. Non-compliance with the
rules of Court or a rule of practice in force does
not render the proceedings void in which an
irregularity occurs which can be corrected by
amendment.
Mention was also made that allegations of fact
in paragraph 7 of the statement of claim are
possibly conjecture, remote and constitute a causa
sine qua non rather than the causa causans of a
breach of the Canadian Charter of Rights and
Freedoms.
However I did conclude that the statement of
claim did contain sufficient allegations to raise a
justiciable issue. In so doing I had in mind the
analogy of the nature of liability from extra-
hazardous activities and the escape of noxious
things within the principle of Rylands v. Fletcher
(1866), Law Rep. 1 Ex. 265; (1868), Law Rep. 3
H.L. 330 in which a dangerous activity may be
stigmatized on account of its foreseeable harmful
potentialities coupled with the fact that a general
beneficial character requires toleration in the in
terest of the community at large which latter
circumstance would be within the exception simi
larly contemplated by section 1 of the Charter and
which I have concluded is properly the subject
matter of defence.
It was for these reasons at the conclusion of the
hearing that the application to strike out the state
ment of claim and dismiss the action was denied.
At the same time I granted the defendants an
extension of time within which to file a statement
of defence.
This was not done upon my own initiative. It
was an alternate request included in the defend
ants' notice of motion.
However on consent of counsel I did extend the
time sought for the defendants to file their answer
from 10 days to 30 days from the date of the order
which is the normal time from service of a state
ment of claim within which to file a statement of
defence.
This time further than that requested was grant
ed to permit of demands for particulars and like
matters which were foreseen as likely.
It was for the foregoing reasons that the order
was given at the conclusion of the hearing. Counsel
for the parties were well aware of the reasons
which were thoroughly discussed in the day-long
hearing but it has been considered expedient to
reduce those reasons to writing for inclusion in the
appeal book because the order has been appealed
and because the decision has excited wide public
controversy.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.