T-429-84
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
Disarmament and Peace, Against Cruise Testing
Coalition, B.C. Voice of Women, National Action
Committee on the Status of Women, Carman
Nuclear Disarmament Committee, Project Surviv
al, 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, Muldoon J.—Ottawa, March 5 and
6, 1984.
Constitutional law — Charter of Rights — Liberty and
security — Application to enjoin testing of cruise missile in
Canada or authorization thereof until trial of action — Not
demonstrated nuclear holocaust will result — No evidence
right to life and personal security would be violated — Oppos
ing view that not testing would jeopardize rights — Views
equally speculative — Direct physical risks for testing area
not established — Trial Division "court of competent jurisdic
tion" as per Charter s. 24 — Availability of remedy —
Damages undertaking not required — 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. 7,
24(1), 32(1)(a) — Federal Court Rules, C.R.C., c. 663, R. 469
— Rules of the Supreme Court of Canada, SOR/83-74, RR. 5,
7, 27.
Practice — Stay of execution — Application to enjoin
missile testing until trial — Action's dismissal under appeal to
Supreme Court — No s. 70 stay — Stay of "execution"
impossible where judgment proclaims absence of cause of
action — Stay would restore cause of action — Trial Division
must abide by dismissal — Supreme Court Act, R.S.C. 1970,
c. S-19, s. 70(1).
Crown — Royal prerogative — International treaties —
Application to enjoin missile testing under Canada-U.S.
accord — Whether "agreement" to be regarded as treaty —
Treaty must be expressly implemented by legislation —
Defendants implementing without parliamentary authorization
— Charter reinforcing courts' authority to determine limits of
prerogative power — Crown cannot infringe citizens' rights by
unratified treaties — Canadian Charter of Rights and Free
doms, being Part I of the Constitution Act, 1982, Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.), ss. 24, 32.
Jurisdiction — Trial Division — Application under R. 469
to enjoin missile testing under international accord until trial
— Action's dismissal under appeal to Supreme Court — Trial
Division "court of competent jurisdiction" as per Charter s. 24
— Action still before Court — Act s. 17 conferring jurisdiction
where relief claimed against federal Crown — S. 24 not
creating jurisdiction but allowing Act to be invoked — Charter
reinforcing courts' authority to determine limits of Crown's
prerogative power — Canadian Charter of Rights and Free
doms, being Part I of the Constitution Act, 1982, Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.), ss. 24, 32 — Federal
Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 17 — Federal
Court Rules, C.R.C., c. 663, R. 469.
The defendants entered into an "agreement" with the gov
ernment of the United States, providing for testing of the cruise
missile in Canada. The plaintiffs commenced an action in the
Trial Division, in which they sought a declaration that the
defendants' authorization of such testing was in violation of the
Charter and therefore illegal. The defendants moved to have
the statement of claim struck out as disclosing no reasonable
cause of action, and to have the action dismissed. At first
instance, this motion was unsuccessful; however, on appeal to
the Court of Appeal, the action was dismissed.
The plaintiffs, in turn, appealed the dismissal to the Supreme
Court of Canada. Argument was duly presented, but the
defendants decided to permit the first stage of airborne testing
to proceed without waiting for the Court's decision. This testing
was to involve the carrying of an unarmed missile over Canadi-
an territory by a U.S. bomber.
The plaintiffs applied to the Trial Division for an order,
pursuant to Rule 469, enjoining the defendants from carrying
out, or authorizing the performance of, testing in Canada until
the trial of the plaintiffs' action.
Held, the application is dismissed.
Until the Supreme Court delivers its ruling, the Trial Divi
sion must abide by the decision of the Court of Appeal, because
it has not been stayed. Section 70 of the Supreme Court Act
does impose a stay of execution where an appeal is submitted to
the Court; however, to hold that a judgment which proclaims
the absence of a cause of action is susceptible of a stay of
"execution" would be to stretch the meaning which attaches to
the latter word in its context. Staying the "execution" of such a
judgment would amount to restoring the cause of action, and
that is the very relief which the plaintiffs are seeking from the
Supreme Court.
Even if the plaintiffs succeed in their appeal, this will not
mean that they have achieved the proscription of the testing.
They will merely have secured the right to proceed with their
suit. Their chances of halting the initial phase of testing are
and, should they succeed in the Supreme Court, will remain,
rather slim.
Notwithstanding the circumstances in which this application
has been brought, for the purpose of adjudicating upon it this
Court is "a court of competent jurisdiction" within the meaning
of section 24 of the Charter. The plaintiffs' action is, however
tenuously, still before the Court. Moreover, by virtue of section
17 of the Federal Court Act, the Trial Division possesses
jurisdiction in all cases wherein relief is claimed against the
Crown in right of Canada. While section 24 does not create a
jurisdiction for the Court, under section 24 the jurisdiction
conferred by the Federal Court Act may be invoked.
According to the evidence, the arrangement between the
defendants and the United States government is an "agree-
ment" only, and not a treaty or convention. Nonetheless, the
plaintiffs invite the Court to regard the "agreement" as a
treaty. They seek to invoke the well-known rule to the effect
that, in order for an international treaty to become part of
municipal law, there must be legislation which expressly imple
ments the treaty; and they argue that the defendants are
contravening this rule, in that they (the defendants) are pro
ceeding to implement their accord without having first obtained
parliamentary authorization.
The courts do have the power to determine the existence,
scope and form of a prerogative power claimed by the Crown.
This apparently is the case in the United Kingdom, and it is
therefore even more true in Canada, given sections 32 and 24 of
the Charter. Furthermore, the courts have held that the pre
rogative power is not so extensive as to enable the Crown to
infringe the rights of citizens by treaties which have not been
ratified by Parliament.
The key question, however, is whether rights would be violat
ed by the anticipated actions of the defendants. The plaintiffs
have failed to present cogent evidence that this would be the
case—evidence that is required to warrant an exercise of the
Court's discretion in their favour. They have not demonstrated
that the fact of testing will be productive of a nuclear holocaust
or other disaster. The evidence which they have adduced simply
assumes that the cruise testing will jeopardize their right to life
and to security of the person. Yet there also exists an opposing
view—namely, that declining to test the missile would give rise
to such jeopardy; and in the absence of evidence substantiating
the plaintiffs' hypothesis, the two positions are equally
speculative.
Any direct physical risks which the bomber or the missile
might itself pose for the testing area have, similarly, not been
shown to be real and proximate. Other airplanes fly over
Canadian territory and other weapons are tested here, appar
ently without exposing people to any notable physical risk.
There is no merit to the objection, put forward by the
defendants, that the plaintiffs have not undertaken to compen
sate them for any loss which they might suffer if an injunction
were granted. The remedy which the plaintiffs seek is one that
should not be available only to the rich. If the plaintiffs had
been able to demonstrate the jeopardy alleged, the absence of
an undertaking would have been of no significance.
CASES JUDICIALLY CONSIDERED
APPLIED:
Re Regina and Palacios (1984), 45 O.R. (2d) 269; 7
D.L.R. (4th) 112; 10 C.C.C. (3d) 431; 1 O.A.C. 356
(C.A.); Laker Airways Ltd. v. Department of Trade,
[1977] 1 Q.B. 643 (Eng. C.A.).
DISTINGUISHED:
R. v. Lyons, [1982] 6 W.W.R. 284 (B.C.C.A.—
Chambers).
REFERRED TO:
Walker v. Baird et al., [1892] A.C. 491 (P.C.).
COUNSEL:
Gordon F. Henderson, Q.C., E. S. Binavince
and L. A. Greenspon for plaintiffs.
Ian Binnie, Q.C. and Graham R. Garton for
defendants.
SOLICITORS:
Gowling & Henderson, Ottawa, for plaintiffs.
Deputy Attorney General of Canada for
defendants.
The following are the reasons for order ren
dered in English by
MULDOON J.: The plaintiffs are applying for an
order, pursuant to Rule 469 [Federal Court Rules,
C.R.C., c. 663], to enjoin the defendants, their
officers, agents or servants and any other person
who shall have notice of such order, "from carry
ing out or authorizing the carrying out, of testing
of the cruise missile in Canada until the trial of
this action". By this, the applicants mean the trial
of the action launched in this Court on July 20,
1983, (Court file no. T-1679-83), in which they as
plaintiffs sued the defendants in order to obtain a
judgment declaring that the defendants' authoriza
tion of the testing of the missile in Canada and the
actual testing of it would be illegal as being con
trary to the provisions, especially section 7, of the
Canadian Charter of Rights and Freedoms [being
Part I of the Constitution Act, 1982, Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.)].
The defendants in that action moved to strike
out the plaintiffs' statement of claim and to dis
miss their action. Mr. Justice Cattanach of this
Court declined to accede to the defendants'
request, holding [[1983] 1 F.C. 429 (T.D.), at
page 436] that the statement of claim expressed at
least "the germ of a cause of action" and [at page
437] "that the statement of claim did contain
sufficient allegations to raise a justiciable issue."
Reference was made in those proceedings to these
provisions of the Charter:
Legal Rights
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.
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.
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; ...
The defendants' application came on for hearing
at Ottawa on September 15, 1983, and at the end
of the hearing Mr. Justice Cattanach dismissed
the defendants' application to strike out the plain
tiffs' statement of claim. His reasons for so doing
were filed on September 27, 1983, in the English
language and on September 30, 1983, in the
French language.
The defendants, having failed to have the state
ment of claim struck out in the Trial Division, then
appealed to the Appeal Division of this Court. The
appeal was heard by five judges of the Appeal
Division on October 11 and 12, 1983. It was
vigorously argued and vigorously opposed. Judg
ment was reserved, to be rendered on November
28, 1983. That judgment [[1983] 1 F.C. 745] was
rendered in favour of the defendants' contentions.
That judgment was unanimous in result, each of
the five judges expressing himself in individually
formulated reasons for judgment.
From the judgment of the Appeal Division an
appeal by the plaintiffs has been taken and argued
before the Supreme Court of Canada on
February 14 and 15, 1984 [Supreme Court file no.
18154]. The Supreme Court reserved the render
ing of its judgment for deliberation and, as of
today, that judgment is still awaited.
One further proceeding has been taken in the
Supreme Court of Canada, according to counsel in
this matter. On Friday, March 2, last, a motion
was launched in the Supreme Court for an order
pursuant to Rules 5 and 7 of that Court [Rules of
the Supreme Court of Canada, SOR/83-74],
abridging the time for the serving and filing of an
application to that Court under its Rule 27, and
also for an order in the nature of directions setting
a date for the hearing of such application on an
urgent basis. In support of that application there
was filed the affidavit of Lawrence Greenspon,
which appears to be identical in all material
aspects with his affidavit filed in support of the
plaintiffs' present application before this Court.
That motion in the Supreme Court of Canada
came on before Mr. Justice McIntyre and he
dismissed it, as counsel related, in so far as grant
ing an urgent hearing on Monday, March 5, 1984,
is concerned, but reserved a place for its argument,
if such be then still sought, during the sitting of
March 19, 1984.
The circumstances facing the Court in this
matter are urgent, somewhat unusual and far from
satisfactory in regard to the prospect of minutely
analytical deliberation upon the issues. The
defendants are permitting the first stage of air
borne testing of an unarmed cruise missile over
Canadian territory without awaiting the decision
of the Supreme Court. "Airborne testing", all
agree, means testing of the missile's guidance
system, not in free flight, but as a "passenger"
attached to a B-52 bomber of the United States
Air Force.
The evidence before the Court on this motion is
not entirely satisfactory because there has been no
opportunity to cross-examine the deponents on
their affidavits filed in support of the motion. The
affidavits, excepting that of Mr. George Barnaby,
refer to the impending testing as announced by the
defendant the Minister of National Defence
through the electronic and print media. Mr. Bar-
naby, a hunter and trapper whose residence is
within the test corridor, deposes that he is the
father of six children and that he fears for the
security and physical well-being of himself, his
children and his community on two bases: (i) the
environmental impact of the testing; and (ii) the
risk of accident. Of course, the reasonable appre
hensions of a parent and a citizen are not to be
denigrated. A satisfactory elaboration of those
apprehensions would have demonstrated some
nexus between them and the risk of jeopardy
which the deponent believes would be posed by the
imminent first stage of testing at least.
During the course of argument, both counsel
allowed that this case has generated strong views,
legitimately held, on both sides, and strong emo
tions. That is not surprising. However, lest emotion
come too strongly to colour these proceedings, that
which each side seeks to accomplish here ought to
be noted as dispassionately as possible.
The plaintiffs seek to maintain the status quo
pending a decision of the Supreme Court of
Canada, and the defendants seek to avoid an order
of this Court enjoining them to maintain the status
quo pending that decision. The awaited decision
will determine the question of whether the plain
tiffs have put forward a justiciable, or triable,
cause of action in suing the defendants, as they did
last July.
The Appeal Division of this Court has decided
unanimously that the plaintiffs' action did not
raise a justiciable issue. Although it is under
appeal, the effect of that judgment of the Appeal
Division stands because it has not been stayed.
Reference was made by the plaintiffs to section 70
of the Supreme Court Act [R.S.C. 1970, c. S-19],
which provides that:
70. (1) Upon filing and serving the notice of appeal and
depositing security as required by section 66, execution shall be
stayed in the original cause, except that [The rest of this section
is not applicable to the present case.]
Execution here has nothing to do with capital
punishment, but rather the acting upon the execu
tive provisions of any judgment, order or other
disposition from which an appeal is taken. It would
be stretching the meaning of that word in context
to hold that a judgment declaring that no justi-
ciable cause of action ever existed can somehow
have its execution stayed, for that would amount
to restoring that cause of action, and that is the
very effect for which the plaintiffs have appealed
to the Supreme Court. In the absence of a much
more cogent expression of legislative intent on that
score, the Trial Division of this Court must accord
full force and effect to the judgment of the Appeal
Division, while awaiting the definitive resolution of
the appeal by the Supreme Court of Canada. This
posture is certainly not undermined by the disposi
tion of the plaintiffs' motion effected by Mr. Jus
tice McIntyre of that Court.
Thus, if the plaintiffs lose their appeal, this
action will be terminated. On the other hand, if the
plaintiffs succeed completely in their appeal, what
will they have won? They will have won the right
to continue their suit against the defendants, who
will thereby have equally the right to mount a full
answer and defence against the plaintiffs' claims.
That does not mean that the plaintiffs will have
won the suppression of the cruise missile testing. It
means only that their action will be permitted to
proceed to judgment wherein they may still win or
lose. In terms of bringing to a halt the initial
testing scheduled for March 6, 1984, the plaintiffs'
recourse at law remains, and will still remain,
rather remote, then, even if they succeed in their
appeal to the Supreme Court in this matter. In
order to penetrate the emotional ambiance of this
case, it needs to be noted that a decision of the
Supreme Court favourable to the plaintiffs' con
tentions would merely have the effect of permit
ting the plaintiffs to get on with their suit against
the defendants. It would not in itself exact a halt
to the cruise missile testing which is the objective
of that suit.
This application by the plaintiffs, then, is for an
interlocutory injunction in their suit whose con
tinued vitality now depends on the outcome of
their appeal in the Supreme Court. In such cir-
cumstances, it was suggested by defendants' coun
sel, this Court is not a "court of competent juris
diction" within the meaning of section 24 of the
Charter. In support of that proposition, counsel
cited R. v. Lyons,' a decision of Mr. Justice
Seaton of the British Columbia Court of Appeal,
in Chambers. That case is not an authority for the
proposition. As counsel for the plaintiffs coun
tered: (1) the plaintiffs' action, however tenuously,
is still before this Court and such was not the case
in R. v. Lyons; (2) the Trial Division of this Court
has been accorded jurisdiction, par excellence, in
all cases in which relief is claimed against the
Crown (in right of Canada) and is vested with
exclusive original jurisdiction in such cases, pursu
ant to section 17 of the Federal Court Act [R.S.C.
1970 (2nd Supp.), c. 10]. It follows therefore that
where an issue of this kind is raised under the
Charter, the jurisdiction already based on the
Federal Court Act may be invoked through the
provisions of section 24 of the Charter, but is not
created by it.
That being the case, have the plaintiffs adduced
sufficient evidence on their motion to induce this
Court to exercise its discretion in their favour?
The question of whether the defendants are
acting illegally for want of legislation duly enacted
by Parliament authorizing them to proceed on
their agreement with the United States of America
was raised by the plaintiffs' counsel. He contends
that the defendants are acting illegally and uncon-
stitutionally, and cites the well-known rule which
was most recently again stated by Mr. Justice
Blair of the Ontario Court of Appeal in Re Regina
and Palacios, 2 [at page 276 O.R.]:
Treaties, unlike customary international law, only become part
of municipal law if they are expressly implemented by statute:
The "Parlement Belge" (1879), 4 P.D. 129. 3
' [1982] 6 W.W.R. 284 (B.C.C.A.—Chambers).
2 Judgment released February 10, 1984. [Now reported at
(1984), 45 O.R. (2d) 269; 7 D.L.R. (4th) 112; 10 C.C.C. (3d)
431; 1 O.A.C. 356 (C.A.).]
3 /bid. at p. 10.
Such was the import also of the Judicial Commit
tee's disposition of Walker v. Baird et al.'
Here, however, there is no evidence of a treaty
or convention. The evidence discloses only an
"agreement". In the absence of such evidence, and
indeed in the absence of an Order in Council or
cabinet minute on this subject, counsel for the
defendants invites the Court to regard this "agree-
ment" as if it were a treaty and subject to the
well-known rule stated by Blair J.A. in the
Palacios case. Without legislation in this regard,
the Crown cannot infringe the rights of Canadians
simply by entering into treaties in the exercise of
Crown prerogatives.
In the United Kingdom to whose constitution
ours is similar in principle, Mr. Justice Mocatta,
as the plaintiffs' counsel notes, has held:
Nothing that I have said in dealing with this issue has been
intended to throw any doubt upon the principle that ... the
courts are empowered to determine the existence, scope and
form of a prerogative power .... 5
Counsel emphasizes that courts are empowered to
determine the existence, scope and form of a pre
rogative power claimed by the Crown. Indeed,
since that appears to be so in the United Kingdom,
it is all the more so in Canada with the proclama
tion of section 32 of the Charter, when read in
conjunction with section 24. The courts in declar
ing the law have limited the scope of the preroga
tive power from infringing the rights of the people
through international treaties which are not imple
mented by the people's representatives in Parlia
ment. The remedy for any such infringement is
provided by the Charter.
There is a certain circuity of argument in this
case which returns to consideration of the rights
which are, or may be, violated. Evidence is
required on this application for an interlocutory
injunction in order to provide a factual underpin
ning to the question of constitutional rights. Evi
dence has been provided through the affidavits of
Lawrence Greenspon, George Barnaby and
° [1892] A.C. 491 (P.C.).
5 Laker Airways Ltd. v. Department of Trade, [1977] 1 Q.B.
643 (Eng. C.A.), at p. 678.
Thomas James Stark. In the earlier proceedings to
strike out the plaintiffs' statement of claim it had
to be assumed that the plaintiffs' allegations were
true and proved. Now the plaintiffs need to present
cogent evidence. Is it cogent?
It is not cogent evidence which has been pro
duced. The evidence proceeds upon the assumption
that the testing of the cruise missile will jeopardize
the plaintiffs'—indeed everyone's—right to life
and security of the person. That may well be a
shrewd speculation (although there are those who
disagree), but it remains a speculation because
there is no evidence to support it. If it were
demonstrably true on a balance of probability,
then it would not matter whether the plaintiffs
could demonstrate jeopardy to themselves or their
members, for if the certainty of nuclear holocaust
could be demonstrated, that would most certainly
engage the Court's injunctive powers. But without
credible evidence that some foreign power will
over-react at once, or that other negotiations or
peace initiatives will surely fail, or that the testing
of this missile generates real and proximate jeop
ardy to our rights, or some such evidence, it cannot
be held that the plaintiffs are entitled to the
injunction which they seek at this time. If their
suit be revived by the judgment of the Supreme
Court of Canada, they ought certainly to have
leave to bring a further application upon further
and other evidence if such be available.
In terms of danger to life and security of the
person, both counsel acknowledged that there are
at least two opposed views. The plaintiffs contend
that testing of the missile generates that jeopardy.
The opposing view holds that declining to test the
missile generates such jeopardy in a perilous
world. Both views appear to be equally speculative.
It would be something akin to insanity to oppose
the plaintiffs' ultimate objective of contributing to
a reduction of nuclear armaments in the world.
However their speculations about the dire conse
quences of the cruise missile tests planned by the
defendants are clearly too remote, without cogent
evidence to demonstrate that disaster—and an out
right violation of section 7 rights would be a
disaster—will surely follow.
The physical risks which the bomber or the
missile, if it ever does fly in the sparsely-populated
corridor, might pose have likewise not been
demonstrated to be real and proximate. Aero
planes fly and artillery and other weapons are
tested in Canada without posing any notable
physical risk to our people, if the only evidence
before the Court is the most cogent which the
plaintiffs can produce in the circumstances.
Plaintiffs' counsel argues that, assuming that
the defendants are truly acting unconstitutional-
ly—an assumption not yet reified—then permit
ting the initial flight test will destroy the rights
which the plaintiffs are asserting. That to permit
the defendants to nibble away by committing only
this "small" wrong will subvert the rights asserted
for all time because it is not the magnitude of the
wrong which counts, but whether there is a wrong.
That is, in fact and in law, the issue before the
Court. It is on that issue precisely that the plain
tiffs have failed to make a case in these
proceedings.
Other peripheral matters were argued. The
plaintiffs' counsel taxed the defendants with disre-
spectfor the Supreme Court in not abiding the
outcome of the appeal. The defendants' counsel
retorted that the plaintiffs could have brought
their application for an interlocutory injunction
last August when they learned of the defendants'
plan to test the missile beginning in March, 1984.
The defendants' counsel noted that the plaintiffs
have nor ndértaken to compensate the defendants
in the event that the injunction be granted. Plain
tiffs' counsel retorted that this is not a commercial
case and the remedy should not be available only
to the rich. Amen. Surely, if the plaintiffs were
able to demonstrate the jeopardy which they
assert, lack of an undertaking to compensate the
defendants would have paled into utter insignifi
cance. The failure to demonstrate that jeopardy
means that while the subject-matter is serious in
the truest sense of that word, the issue is not a
serious one on the evidence, or rather because of
the lack of evidence here.
The plaintiffs' application for an interlocutory
injunction is dismissed. This is not a case for
awarding costs against the plaintiffs in the inter
ests of dealing dispassionately with the matters
and the parties before the Court. Ordinarily costs
follow the event, but they are discretionary, and
the strong emotions mentioned by counsel ought
not to be intensified further in the circumstances
of this case.
ORDER
The plaintiffs' motion for an order enjoining the
defendants, their officers, agents or servants and
any other person, from carrying, out, or authoriz
ing thé carrying out, of testing of the cruise missile
in Canada until the trial of this action, is dis
missed, without costs in favour of or against any
party.
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.