T-5088-80
Elaine Joyce Publicover (Applicant)
v.
The Queen, the Minister of National Defence and
Earl Hubert Publicover, a member of the Cana-
dian Armed Forces serving outside Canada
(Respondents)
Trial Division, Smith D.J.—Winnipeg, October
23, 1980 and February 12, 1981.
Prerogative writs — Habeas corpus and mandamus —
Applicant seeking to have her son returned to her custody —
Father is a member of the Canadian Forces in Germany —
Relief sought by applicant in the form of a writ of habeas
corpus and a writ of mandamus compelling the Minister to
enforce the orders sought — Applicant unable to effect service
of orders previously issued by the Court of Queen's Bench —
Respondent unwilling to accept service — Whether this Court
has jurisdiction to grant relief sought — Whether it has
jurisdiction over members of the Canadian Forces serving in
Germany — If so, whether jurisdiction extends to the service
and enforcement of court orders issued by it in civil litigation
in Canada — Federal Court Act, R.S.C. 1970 (2nd Supp.), c.
10, ss. 17(5), 55(1),(4),(5) — National Defence Act, R.S.C.
1970, c. N-4, s. 134.
Applicant seeks to have her son, who is now living with his
father in Germany, returned to her custody. The father
(respondent Publicover) is a member of the Canadian Forces
stationed at Lahr, Germany. She asks for relief in the form of a
writ of habeas corpus similar to the one ordered by the Court
of Queen's Bench of Manitoba—an order directing that her son
be returned to her custody and a writ of mandamus compelling
the respondent, E. H. Publicover, to comply with the orders
sought and compelling the Minister of National Defence to
have those orders enforced. Applicant has been unable to effect
service of the writ of habeas corpus and the related orders
issued by the Court of Queen's Bench because of respondent
Publicover's unwillingness to accept service. Applicant argues
that this Court has jurisdiction in personam over the Canadian
service personnel at the Base and relies on sections 17(5)
and 55 of the Federal Court Act. The issue is whether this
Court has jurisdiction to grant the relief sought; in other words,
whether it has jurisdiction over members of the Canadian
Forces serving in Lahr and, if so, whether it extends to the
service and enforcement of court orders issued by it in civil
litigation in Canada.
Held, the application is dismissed. This Court has jurisdic
tion in personam over the Canadian service personnel serving at
the Base for some purposes. However, generally speaking, a
member of the Canadian Forces is, in matters not related to his
military service, in the same position as a private citizen. There
are many things which he cannot be compelled to do. Section
134 of the National Defence Act which gives the military police
only the power to enforce the code of military discipline, does
not authorize them to take action in a domestic matter like
divorce proceedings. With respect to section 55(1), no legisla
tion of the Parliament of Canada has been made applicable to
the Canadian Forces Base at Lahr, Germany. Section 55(4)
and (5) does not apply to execution of process in a foreign
country. The writ of mandamus is not available to compel a
private person to do something. It is not the same as a
mandatory injunction: its purpose is to compel an inferior
court, tribunal or other body having judicial or quasi-judicial
functions to carry out its duty. Furthermore, no public or legal
duty is owed by the Minister to the applicant.
Rossi v. The Queen [1974] 1 F.C. 531, applied. Rothmans
of Pall Mall Canada Ltd. v. Minister of National Revenue
[1976] 1 F.C. 314, applied.
APPLICATION.
COUNSEL:
K. Zaifman and M. Gutkin for applicant.
J. M. Remis for respondent E. H. Publicover.
B. Meronek for respondents the Queen and
the Minister of National Defence.
SOLICITORS:
Kopstein & Company, Winnipeg, for appli
cant.
Simkin, Cantor, Goltsman & Rosenberg,
Winnipeg, for respondent E. H. Publicover.
Deputy Attorney General of Canada for
respondents the Queen and the Minister of
National Defence.
The following are the reasons for order ren
dered in English by
SMITH D.J.: This is an application by a wife,
separated from her husband, for several forms of
relief, all aimed at having her youngest son,
Thomas Edward Publicover, now 13 years of age,
returned to her custody. Under a separation agree
ment, made in 1976, between the applicant and
her husband, the respondent Earl Hubert Pub-
licover, it was agreed that the applicant would
have sole custody of the four children of the
marriage, including Thomas Edward Publicover.
On January 8, 1980, in divorce proceedings
against her husband, she was granted interim sole
custody of the infant children, by order of Nitik-
man J. in the Court of Queen's Bench.
The applicant's husband is a member of the
Canadian Armed Forces, presently stationed at
Lahr, Germany. In the summer of 1980 Thomas
Edward Publicover travelled to Germany for a
visit with his father. He was due to fly back to
Winnipeg on August 29, 1980, but about August
18 the applicant was advised by Earl Hubert Pub-
licover that Tommy would not be returning to
Winnipeg but was going to stay permanently with
his father in Germany.
The applicant commenced proceedings in the
Court of Queen's Bench. On August 28, 1980
Hunt J. made an order directing that a writ of
habeas corpus issue directing the respondent Earl
Hubert Publicover to have Tommy brought before
a Judge of the Court of Queen's Bench, also
ordering that all sheriffs, deputy sheriffs, con
stables and military police do all acts necessary to
enforce the said order of August 28, 1980 and the
interim custody order of January 8, 1980. The writ
of habeas corpus was issued on September 12,
1980.
On September 4, 1980, Hunt J. ordered the
matter adjourned to September 18, 1980, at which
date the respondent was to show cause why he
should not be found in contempt of Court for
failing to observe the order of August 28, 1980 and
the interim custody order of January 8, 1980.
The applicant failed in efforts to have the above
mentioned writ and orders served upon the
respondent Earl Hubert Publicover in Germany,
through the military authorities. On September
18, 1980, Hunt J. ordered that personal service of
true copies of the orders and writ upon the Base
Commander, C.F.B., Winnipeg or his adjutant
would be sufficient service upon the respondent.
On September 24, 1980 the applicant's solicitor
was advised that such service had been effected.
On October 2, 1980 Hunt J. ordered that a
bench warrant issue to have the respondent
brought before him or another judge of the Court
of Queen's Bench to show cause why he should not
be found guilty of contempt of Court by reason of
his failure to obey the interim custody order of
January 8, 1980 and the order of August 28, 1980
and the writ of habeas corpus dated September 12,
1980. The bench warrant was issued on October 9,
1980, but as the respondent is in Germany and
refuses to accept service of any documents, it has
not been served upon him.
Having exhausted the remedies available
through the Court of Queen's Bench, the applicant
brought this motion in the Federal Court, Trial
Division.
The interim custody order of January 8, 1980,
has been filed in this Court and, under Federal
Court Rule 1087, has become an order of this
Court.
This relief asked for on the present application
may be summarized as follows:
1. A writ of habeas corpus similar in terms to the
one ordered by Hunt J. on August 28, 1980 in the
Court of Queen's Bench.
2. An order directing that Tommy be returned to
the custody of the applicant.
3. A writ of mandamus:
(a) compelling the respondent Earl Hubert Pub-
licover to comply with
(i) the writ of habeas corpus,
(ii) the order directing that Tommy be returned
to the applicant, and/or
(iii) the order of January 8, 1980 made by
Nitikman J.;
(b) ordering the Minister of National Defence to
cause to be enforced the writ of habeas corpus, the
order of interim custody and the order directing
that Tommy be returned to the custody of the
applicant;
(c) compelling all sheriffs, deputy sheriffs, con
stables, military police and other peace officers to
do all acts necessary to enforce the said writ and
orders;
(d) compelling the Minister of National Defence
to compel the respondent Earl Hubert Publicover
to comply with the said writ and orders;
(e) compelling the Minister of National Defence
to compel all sheriffs, deputy sheriffs, constables,
military police, and all other peace officers, and
anyone under his authority to enforce the said writ
and orders.
It is apparent that the relief being sought from
the Federal Court is the same as the relief for
which the Court of Queen's Bench has already
issued process, with the addition that the Court is
now being asked to compel the Minister to have
the orders enforced. The writ of habeas corpus and
the two orders were issued by the Court of Queen's
Bench pursuant to its powers to enforce its orders
made in divorce proceedings, in this case the order
for interim custody. The jurisdiction of that Court
in divorce matters is undoubted, and no question
has been raised in this application about the validi
ty of the writ and orders issued by it. The question
naturally arises: why is duplicate relief being
sought in this Court?
It appears from the affidavit of Marla Gutkin
that the Canadian military authorities in Germany
and Canada were willing to assist the Court pro
cess, but, under military rules, only if the respond
ent Earl Hubert Publicover was willing to accept
service of the documents. This he was unwilling to
do. Eventually he was served substitutionally by
service on the Base Commander of the Canadian
Forces Base, Winnipeg. Neither this service nor
the subsequent issue of a bench warrant on the
order of Hunt J. has brought about the return to
Canada of Earl Hubert Publicover or his son
Tommy.
The applicant believes that this Court has juris
diction beyond that of the Court of Queen's Bench,
which can lead to Tommy and the respondent
being brought back to Canada. She relies first of
all on section 17(5) of the Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10, which reads:
17....
(5) The Trial Division has exclusive original jurisdiction to
hear and determine every application for a writ of habeas
corpus ad subjiciendum, writ of certiorari, writ of prohibition
or writ of mandamus, in relation to any member of the
Canadian Forces serving outside Canada.
This subsection, in terms, gives this Court exclu
sive jurisdiction to deal with and determine
applications for relief of the nature asked for in the
present application in relation to a member of the
Canadian Forces serving outside Canada. In the
view I take of this case it is not necessary to
examine whether it is intended to take away, in the
circumstances mentioned, the jurisdiction of the
Court of Queen's Bench to hear and determine
similar applications in connection with divorce
proceedings, or whether, if it is so intended, it is
constitutionally valid to produce that effect.
What the subsection does not speak about is the
enforcement of the writs mentioned. By what pro
cess is a member of the Canadian Forces serving
outside Canada to be compelled to return to
Canada himself or to produce to this Court some
body else who is also outside Canada?
As the interim custody order is now an order of
this Court, I could order the respondent to comply
with it and return Tommy to the custody of the
applicant. There is, however, nothing in the evi
dence to suggest that such an order would in itself
be any more effectual than the orders issued by the
Court of Queen's Bench. This being so I do not
think I should make an order that simply dupli
cates the order of Hunt J. The writ of habeas
corpus and the order of August 28, 1980 and
subsequent orders of the Court of Queen's Bench
have not been registered in this Court. Whether or
not they could be so registered, neither the writ
nor the orders have become process of this Court.
In my view it would be improper, simply at the
request of a litigant, to attempt to enforce the
orders of another court.
What the applicant really desires is to have her
son Tommy returned to her custody. Therefore, in
addition to a new writ of habeas corpus, and an
order directing that Tommy be returned to her
custody, and orders directing the respondent Earl
Hubert Publicover to comply with that writ and
the orders issued by the Court of Queen's Bench,
which would probably be ineffectual, she is asking
for a writ of mandamus from this Court ordering
that the Minister of National Defence cause the
writ of habeas corpus and the other orders to be
enforced, also compelling the Minister to compel
the respondent Earl Hubert Publicover to comply
with the said writ of habeas corpus and the other
orders, and finally compelling the Minister tc
compel all sheriffs, deputy sheriffs, constables,
military police, all other peace officers, and
anyone under his authority to enforce the writ of
habeas corpus and the other orders.
The only justification that I can see for asking
this Court for a new writ of habeas corpus, and for
an order that Tommy be returned to the appli
cant's custody is that, since this Court's jurisdic
tion extends throughout the whole of Canada, the
existence of that writ and order would in the
applicant's view place the Court in a position tc
order the Minister, resident in Ottawa, to carry
out the orders she is asking for, directed to him.
From the argument of counsel at the hearing it
is patent that applicant's hope of gaining her
objective rests mainly on the Court being con
vinced to issue the orders asked for against the
Minister. There is no doubt that the military
authorities and their civilian head, the Minister of
National Defence, have the power, at least for
service reasons, to order the respondent Earl
Hubert Publicover to return to Canada and to see
that he obeys such order. Assuming for the
moment that this Court has jurisdiction to order
the Minister to compel the return of Tommy,
whether or not accompanied by the respondent,
the problem would still remain: should the Court
exercise that jurisdiction?
Counsel for the applicant submits that the Court
has jurisdiction to grant all the relief asked for,
including the orders to compel the Minister to do
the things specified therein. He relies primarily on
subsection 17(5) of the Federal Court Act (quoted
supra). That subsection gives the Trial Division of
the Court exclusive jurisdiction to hear and deter
mine every application for, inter alia, a writ of
habeas corpus or a writ of mandamus. It says
nothing about enforcing the writs issued. Can it be
said that the subsection implies that an order
obtained in civil proceedings in Canada can be
enforced against a member of the Canadian Forces
serving outside Canada, by means other than those
applicable to persons not in the Canadian Forces?
Counsel also cited in support of his submission
section 55(1),(4) and (5). Section 55(1) reads:
55. (1) The process of the Court shall run throughout
Canada, including its territorial waters, and any other place to
which legislation enacted by the Parliament of Canada has
been made applicable.
No evidence or argument was submitted to indi
cate that any legislation of the Parliament of
Canada had been made applicable to the Canadian
Forces Base at Lahr, Germany. Nor do I know of
any such legislation. Subsection (4) provides, in
part:
55....
(4) A sheriff or marshal shall execute the process of the
Court that is directed to him whether or not it requires him to
act outside his geographical jurisdiction ....
In my opinion this subsection is not intended to
apply outside Canada. It cannot mean, for exam
ple, that a sheriff who has been handed a bench
warrant to arrest and bring in a certain person, is
thereby authorized to go to a foreign country, find
his man, arrest him and bring him back to
Canada.
For similar reasons, in my opinion subsection
(5) does not apply to execution of process in a
foreign country.
The applicant does not contend that the Canadi-
an Forces Base at Lahr, Germany, is part of
Canada. Nor could such a contention succeed.
There is no evidence that such is the case, and it
would be a most unusual situation if it were. The
applicant's submission is that this Court has legal
jurisdiction over the Base, not territorial jurisdic
tion, by which I presume is meant jurisdiction in
personam over the Canadian service personnel at
the Base. Agreeing that it has such jurisdiction for
some purposes a doubt remains as to how far it
extends.
Counsel for the respondent Earl Hubert Pub-
licover opposes the application on several grounds.
In the first place he submits that orders for all
possible relief have been issued by the Court of
Queen's Bench, and the fact that the Court appar
ently cannot enforce them does not justify this
Court in granting similar forms of relief. He
emphasizes that for the Federal Court to order a
new writ of habeas corpus under section 17(5) of
the Federal Court Act would only duplicate the
order of the Court of Queen's Bench. Therefore, in
his submission the application should not be
granted.
I do not find this argument convincing. The
applicant has been unable to have the writ of
habeas corpus and other orders of the Queen's
Bench enforced because, on account of a military
rule requiring the willingness of the serviceman
involved to have service of legal process accepted
before the cooperation of the military authorities
will be forthcoming, which willingness was refused
in this case, the applicant has not been able to
obtain the cooperation of the military authorities
at Lahr to effect service of Court process on the
respondent. For this reason she has been unable to
have either the writ or the other orders enforced. If
enforcement of similar orders issued by this Court
is possible through the enforced cooperation of the
Minister, I do not consider that the fact that there
would be duplication of process should in itself
preclude the applicant from getting the relief
sought.
Secondly counsel refers to the status of the
Canadian Forces Base at Lahr. I do not regard
this matter as vital to the decision in this case. The
real question is not whether the Base is a part of
Canada, of which there is no evidence and which I
can scarcely believe to be a fact, but whether this
Court has jurisdiction over members of the
Canadian Forces serving in Lahr and whether that
jurisdiction, if it exists, extends to the service and
enforcement of Court orders issued by it in civil
litigation in Canada, more particularly in relation
to divorce proceedings.
Thirdly, counsel refers to the status of the
respondent Earl Hubert Publicover as a member of
the Canadian Forces. He submits that this status
does not render him liable to a much greater range
of remedies than would apply to a private citizen.
He contends that the military authorities have
jurisdiction over him only in matters military. On
this point he relies on section 134 of the National
Defence Act, R.S.C. 1970, c. N-4, which gives the
military police only the power to enforce the code
of military discipline, and does not authorize them
to take any action in a domestic matter like
divorce proceedings.
There is force in these submissions. Generally
speaking, a member of the Canadian Forces is, in
matters not related to his military service, in the
same position as a private citizen. There are many
things which he may or may not do, according to
his own decision, but which he cannot be com
pelled to do. With respect to the last point in the
preceding paragraph a question arises as to the
effect of section 55(5) of the Federal Court Act.
Section 55 is concerned with process of the Court
and execution thereof. Subsection (4) provides
that a sheriff or marshal shall execute Court pro
cess. Subsection (5) then provides for cases in
which no sheriff or marshal is available or is able
or willing to act. It enacts that in such cases:
... the process shall be directed to a deputy sheriff or deputy
marshal, or to such other person as may be provided by the
Rules or by a special order of the Court made for a particular
case....
The question is whether an order of the Court
directing all military police to do all things neces
sary to enforce a specific Court order comes within
the meaning of the words "such other person as
may be provided by ... a special order of the
Court made for a particular case." If so, and even
though it means giving the words "such other
person" a wide interpretation, I think that is what
is intended, it means that such an order of this
Court directed to all military police would be a
valid order.
Counsel's final contention is that the writ of
mandamus is not available to compel a private
person to do something. I agree with this submis
sion. The writ of mandamus is not the same as a
mandatory injunction. Its purpose is to compel an
inferior court, tribunal, or other body or person
having judicial or quasi-judicial functions to carry
out its duty. It is not designed to compel a private
person to do something. The result, in my view of
the law, is that the writ of mandamus (one of the
old prerogative writs) is not available to the appli
cant in this case.
Counsel for the respondent Minister makes an
additional submission with respect to issuing a writ
of mandamus directing the Minister to do the
things asked for by this application. He submits
that there is no basis for using this writ to compel
the Minister to do something interfering with the
private affairs of the respondent Earl Hubert Pub-
licover. In support of this submission he cites two
cases. The first of these is Rossi v. The Queen
[1974] 1 F.C. 531.
In that case the plaintiff, an inmate of a Canadi-
an penitentiary, sought mandamus to the Crown,
as represented by the Solicitor General and offi
cers of the Canadian Penitentiary Service, requir
ing them to show cause why the Court should not
order them to furnish the plaintiff with all papers
and information pertaining to warrants outstand
ing against the plaintiff in the States of Florida
and Connecticut, U.S.A.
Walsh J. at pages 535 and 536, having stated
that mandamus does not lie against the Crown,
went on to deal with the law with respect to the
penitentiary officers named in the proceedings, as
follows:
The application must also fail on the merits, however. A writ
of mandamus lies to secure the performance of a public duty, in
the performance of which the applicant has a sufficient legal
interest. It does not lie to compel the performance of a mere
moral duty or to order anything to be done that is contrary to
law....
He then quoted from S. A. de Smith's Judicial
Review of Administration, 2nd ed., at pages
561-563:
Nor ... will it issue in respect of a merely private duty, ... or
against a respondent who is not commandable by the court or
by whom the duty is not owed.
Counsel said there is no public duty in this case,
owed by the Minister to the applicant or anyone
else, with which statement I agree.
The second case is Rothmans of Pall Mall
Canada Limited v. M.N.R. [1976] 1 F.C. 314.
In this case an, application was made, asking for
several of the extraordinary remedies, including a
writ of mandamus to require the respondent Min
ister and his Deputy Minister to include in the
length of cigarettes, as defined in section 2 of the
Excise Act, R.S.C. 1970, c. E-12, as amended, the
length of the filter tip (in which there is no tobac
co) for the purposes of calculating the number of
cigarettes upon which duties are to be imposed and
collected under the Excise Act.
Section 6 of the Excise Act contains a definition
of "cigarette". Included in the definition are the
following words:
. where any cigarette exceeds four inches in length, each
three inches or fraction thereof shall be deemed to be a
separate cigarette;
The effect of these words is that a cigarette over
four inches in length is to be treated as two
cigarettes for excise tax purposes.
Prior to 1975 there were no cigarettes on the
market in Canada having an overall length of
more than four inches, including the filter. In 1975
two companies introduced to the Canadian market
cigarettes having an overall length of more than
four inches including the filter but less than four
inches if the filter is excluded. The Department of
National Revenue, after obtaining legal advice,
concluded that the Excise Act should be adminis
tered and the duty payable should be calculated on
the basis that a cigarette in which the portion
containing tobacco is less than four inches will be
considered as one cigarette, notwithstanding that
its total length, including the filter, exceeds four
inches.
The applicant companies, which did not make
any cigarettes having a total length of over four
inches, claiming that the Department's ruling gave
the two respondent companies an unfair competi
tive advantage, brought this proceeding to compel
the Department to levy excise tax on the basis that
the length of a cigarette included the length of the
filter.
Heald J. dismissed the application on the
ground that the Court had no jurisdiction to inter
vene. At pages 320-321 he said:
There is ample authority for the proposition that when a
Minister of the Crown is performing his duties as a servant or
agent of the Crown and where Parliament has not imposed
upon the Minister a specific duty toward a citizen, the remedy
for failure to perform the duty does not lie with the Courts. The
Courts will intervene only in cases where the legislation imposes
upon a Minister a peremptory duty to do a particular act which
entails a legal duty toward an individual. In such a case the
Minister is not accountable to the Crown but to the individual
to whom the legal duty is owed.
There is no basis in the circumstances of this for
holding that the Minister owes a legal duty to the
applicant.
After reviewing the facts of this case and the
law applicable to them I have come to the conclu
sion that I have no jurisdiction to intervene and
order the relief asked for. The application is there
fore dismissed.
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