Digests

Price v. Canada (Attorney General)

T-954-03

2003 FCT 764, Tremblay-Lamer J.

19/6/03

13 pp.

Application for interim relief staying operation of National Defence Act, s. 165.21(4), Queen's Regulations and Orders, art. 15.17, 101.175 until final disposition of matter, prohibiting respondents from terminating applicant's service as military judge--Applicant officer in Canadian Forces with rank of Commander--Applicable table to art. 15.17 providing retirement age for Lieutenant-Colonel, Major 55 years of age--Applicant ceasing to hold office as military judge on July 3, 2003--Minister of National Defence announced intention to extend compulsory retirement age for all members of Canadian forces, including military judges, to 60 years of age--Applicant brought application for declaration compulsory retirement regime infringes Canadian Charter of Rights and Freedoms, s. 15, not justified by Charter, s. 1-- Applicant entitled to relief sought if able to satisfy all three branches of test set out in RJR--MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311--First branch of test whether applicant raised serious issue--Question of whether current Canadian forces compulsory retirement regime based entirely on age unconstitutional meets threshold of serious issue--Second branch of test whether applicant seeking interim relief would, unless relief granted, suffer irreparable harm--Applicant's position as military judge provides him with benefits more than financial--If interim relief not granted he will loose opportunity to serve out tenure as military judge unless reappointed--Such loss not compensable in form of damages--Applicant will suffer irreparable harm if loses judicial appointment as result of current mandatory retirement regime--Third branch of test whether balance of convenience favours applicant or respondent--Only in clear cases are interlocutory injunctions granted against enforcement of law on grounds of alleged unconstitutionality --Validly enacted law presumed to be for public good-- Assumption of public interest in enforcing law weighs heavily in balance--Public interest to maintain duly enacted legislation outweighs detriment caused to applicant--Except in rare circumstances, Court should not on interlocutory motion order applicant to act, be treated as though legislation unconstitutional in advance of complete constitutional review--Cautious restraint should be exercised when making declaration on constitutional validity of law at interim stage without full debate of issue--Minister of National Defence's decision to extend compulsory retirement age for all members of Canadian forces to 60 years of age not acknowledgement current compulsory retirement regime unconstitutional-- Granting stay raises concerns regarding validity of courts martial presided over by applicant after July 3, 2003 pending determination on constitutionality of impugned provisions-- Possibility of challenges to authority of applicant to sit as military judge in light of uncertainty surrounding eligibility-- Balance of convenience favouring respondents--Public interest in proper administration of justice militates against granting stay--Application dismissed--National Defence Act, R.S.C., 1985, c. N-5, s. 165.21 (as enacted by S.C. 1998, c. 35, s. 42)--Queen's Regulations and Orders for the Canadian Forces (1968 Revision), art. 15.17, 101.175--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], ss. 1, 15.