T-1838-87
Jerilynn Prior (Plaintiff)
v.
The Queen (Defendant)
INDEXED AS: PRIOR V. CANADA
Trial Division, Addy J.—Vancouver, January 28
and February 2, 1988.
Constitutional law — Charter of Rights — Fundamental
freedoms — Plaintiff seeking declaration not required to pay
percentage of income tax equal to percentage of federal budget
allocated to military expenditures — Plaintiff, Quaker, alleg
ing requirement of paying full amount of income tax infringing
freedom of conscience and religion — No nexus between taxes
paid and government expenditures — Plaintiffs freedom of
religion not affected as not participating in military
expenditures.
Constitutional law — Charter of Rights — Limitation
clause — Quaker objecting to paying portion of income tax
used for military purposes — Not entitled to withhold per
centage of income tax — Even if freedom of conscience
infringed, reasonable limit on freedom, demonstrably justified
in free and democratic society.
Constitutional law — Charter of Rights — Equality rights
— No discrimination in taxing plaintiff same as other Canadi-
an taxpayers, notwithstanding objections to how tax dollars
spent.
Constitutional law — Distribution of powers — Quaker
withholding percentage of income tax equal to percentage of
federal budget spent on defence — Declaration requiring pay
ment of moneys to such peaceful purposes as Court directs
usurpation of Parliament's powers to tax for defence.
Income tax — Quaker seeking to withhold percentage of
income tax equal to percentage of federal budget spent on
defence — That amount paid into trust fund for peace move
ment — No nexus between taxes payable by plaintiff and
federal expenditures — Income tax payments and other
receipts paid into Consolidated Revenue Fund — Expendi
tures under Financial Administration Act unconnected with
source — While taxes enable government programmes, gov
ernment decides how money spent.
Judicial review — Equitable remedies — Declarations —
Granting declaration percentage of plaintiffs income tax pay
able to Peace Tax Fund or for such peaceful purpose as Court
directs constituting usurpation of Parliament's right to tax
Statement of claim struck as disclosing no cause of action.
This was an application to strike out the statement of claim
as disclosing no reasonable cause of action. The plaintiff, a
Quaker, objected as a matter of conscience, to the payment of
taxes which would be used for military or war purposes. She
withheld the percentage of her net federal tax which approxi
mately equalled the percentage of the federal budget used for
military purposes, and paid this amount to the Peace Tax Fund
operated by Conscience Canada Inc. The plaintiff sought a
declaration that requiring her to pay the full amount of her
income tax would infringe her rights guaranteed by paragraph
2(a) and section 15 of the Charter, and a declaration that she
was not required to pay that amount of tax proportional to the
federal military expenditures, but could pay it for such peaceful
purpose as the Court saw fit. The defendant argued that there
was no nexus between the amount of taxes payable and the
expenditures made by the Federal Government.
Held, the application should be allowed.
The plaintiff was not entitled to withhold tax moneys. Pursu
ant to the Financial Administration Act, all moneys collected
by the Federal Government on its own account are paid into
and form part of the Consolidated Revenue Fund, which Par
liament appropriates to various proposed items of expenditure.
There was no connection between the payments of income tax
into and the payments out of such Fund. When the state spends
money collected as taxes, it spends part of a general public
fund, not the citizen's money. While the taxpayer's money
enables the government to embark on programmes, the govern
ment alone is responsible for the programmes on which money
is spent. If every taxpayer who objected to a certain policy (i.e.
abortion) was entitled to withhold a percentage of income tax,
complete chaos would result and government would break
down.
With regard to the application of the Charter, although the
Constitution overrides any conflicting legislation, no part of the
Constitution can be prevented from operating by any other
section. The Charter, as part of the Constitution, does not enjoy
priority over the other provisions of the Constitution. Under
Head 7 of section 91 of the Constitution Act, 1867, the
Parliament of Canada has exclusive authority over "Militia,
Military and Naval Service and Defence". This does not mean
defence by non-violent means in light of the clear meaning of
the words themselves, and the view of the majority of Canadi- •
ans and the three major political parties that the defence of
Canada by force of arms is one of the very important roles of
the Federal Government. The right of Parliament to tax for
military purposes, as clearly provided for in the Constitution,
would be frustrated in so far as conscientious objectors are
concerned if plaintiff could secure the relief sought.
Charter, subsection 15(1) did not apply because there was no
discrimination in requiring the plaintiff to pay the same taxes
as any other resident taxpayer with the same taxable income.
The impugned legislation, in the cases relied on by the
plaintiff, imposed actual restraints on the normal rights of
citizens. Here, the plaintiff's freedom to practice her religion
was not affected since she does not participate in the spending
of moneys for military purposes. Even if the plaintiff's freedom
of conscience was being infringed, it could probably be
demonstrably justified in a free and democratic society pursu
ant to section 1 of the Charter.
The Court did not have jurisdiction to order that the moneys
be paid to the Peace Tax Fund or for another peaceful purpose
as it would be contrary to the division of powers, and would
constitute an usurpation of the powers of Parliament to appro
priate funds.
The test in Twinn v. Canada had been met. It was patently
clear to the judge hearing the motion that the claim was
without legal justification.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
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, 2(a), 15.
Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.)
[R.S.C. 1970, Appendix II, No. 5] (as am. by Canada
Act 1982, 1982, c. 11 (U.K.), Schedule to the Consti
tution Act, 1982, Item 1), s. 91(3),(7).
Constitution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.), s. 52.
Federal Court Rules, C.R.C., c. 663, R. 419(1)(a).
Financial Administration Act, R.S.C. 1970, c. F-10, ss. 2,
11(1), 24(1).
CASES JUDICIALLY CONSIDERED:
APPLIED:
Re MacKay et al. and Government of Manitoba ( 1985),
23 C.R.R. 8 (Man. C.A.); Autenrieth v. Cullen, 418 F.2d
586 (9th Cir. 1969); Barton v. C.I.R., 737 F.2d 822 (9th
Cir. 1984); Buckley v. Valeo, 96 S.C. 612 (1976); Refer
ence Re Bill 30, An Act to amend the Education Act
(Ont.), [1987] 1 S.C.R. 1148; Penikett v. R., [1988] 2
W.W.R. 481 (Yukon Territory C.A.); Twinn v. Canada,
[1987] 2 F.C. 450 (T.D.).
DISTINGUISHED:
R. v. Big M Drug Mart Ltd., et al., [ 1985] 1 S.C.R. 295;
R. v. Edwards Books and Art Ltd., [ 1986] 2 S.C.R. 713.
REFERRED TO:
Attorney General of Canada v. Inuit Tapirisat of Canada
et al., [1980] 2 S.C.R. 735; Winterhaven Stables Ltd. v.
Attorney-General of Canada (1986), 29 D.L.R. (4th)
394 (Alta. Q.B.).
COUNSEL:
David H. Vickers and C. L. Vickers for
plaintiff.
Eric A. Bowie, Q.C. and I. E. Lloyd for
defendant.
SOLICITORS:
Vickers & Palmer, Victoria, and Schroeder &
Company, Vancouver, for plaintiff.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for order ren
dered in English by
ADDY J.: The defendant applies, pursuant to
Rule 419(1)(a) [Federal Court Rules, C.R.C., c.
663] to have the statement of claim of the plaintiff
struck out and the action dismissed on the ground
that the statement of claim discloses no reasonable
cause of action.
In an application of this kind, the Court must
assume that all of the allegations of fact in a
statement of claim would be conclusively estab
lished at trial. In addition to the identification of
the plaintiff, the facts as pleaded in the various
paragraphs of the statement of claim are as
follows:
3. The Plaintiff is a member of the Society of Friends or
Quakers. It is a matter of the Plaintiffs conscience and a living
expression of her religion and faith that she refuse to partici
pate in any expenditures for military or war purposes, including
the payment of tax which will be used for military or war
purposes whether for defense or otherwise, providing such
defense involves the intent to use or actual use of violence
(hereinafter referred to as "military expenditures").
5. At all material times, the Defendant, represented by the
Government of Canada, was engaged in military expenditures,
particulars of which are known to the Defendant.
6. The Peace Tax Fund is operated by Conscience Canada
Inc., a body corporate, incorporated pursuant to the laws of
Canada. All tax money paid into the fund is held in trust for
the payees and the Defendant. It is the objective of the fund,
subject to lawful approval, to expend money for peaceful
purposes, including inter alia financial support for persons or
organizations engaged in the promotion of peace by peace
research, education and development projects.
7. The Plaintiff says and the fact is that the payment of tax
to the Peace Tax Fund, as hereinbefore pleaded and the refusal
to pay tax for military expenditures is an exercise of her
conscience and religious beliefs, ...
9. Throughout Canadian history and, in particular, during
World War I and World War II, consciencious objection to
military service has been permitted by Canadian law, and
Canadians have in fact exercised their freedom of conscience
not to engage in military service.
10. The Plaintiff says and the fact is that the money allocat
ed in the Canadian budget for military expenditures could be
allocated in the development of strategies for peace and spent
in alternate ways to promote peace and Canadian security.
In paragraph 4 the plaintiff states that the
entire tax has been paid to the Receiver General
except the percentage of - her net federal tax which
would be approximately equal to the percentage of
the federal budget used for military purposes, this
last-mentioned amount having been paid in trust
to the above-mentioned Peace Tax Fund of Con
science Canada Inc. It necessarily follows as a
question of fact from the above that the plaintiff is
not in any way seeking to avoid the payment of
monies, since she has divested herself of the full
amount she would have had to pay.
The above constitutes all of the facts which are
to be taken into account on this application. The
other matters mentioned in the statement of claim
pertain to the pleading of law or of conclusions
which it is claimed should be drawn from certain
facts in the light of common law principles and
various statutory or constitutional provisions.
The claim of the plaintiff is for declaratory
relief to the effect firstly that to require her to pay
the full amount of her income tax to the Federal
Government infringes her rights guaranteed by
paragraph 2(a) and subsection 15 (1) of the Chart
er [Canadian Charter of Rights and Freedoms,
being Part I of the Constitution Act, 1982,
Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)]
and secondly, that she is not required to pay that
part of her income tax which is proportional to the
part of the federal budget allocated to military
expenditures, but that she may pay it instead to
the Peace Tax Fund or for such other peaceful
purpose as the Honourable Court may deem fit.
The defendant cannot succeed on this present
application unless it is clear that there can be no
arguable case in favour of the plaintiff. Otherwise
the motion will have to be dismissed and the
matter will have to proceed to trial.
The first point raised by the defendant is that
there is no nexus of any kind between the amount
of taxes payable by the plaintiff and the expendi
tures made by the Federal Authority.
The following provisions of the Financial
Administration Act, R.S.C. 1970, c. F-10 are ap
plicable to this issue. In section 2 "appropriation"
is defined as:
2....
... any authority of Parliament to pay money out of the
Consolidated Revenue Fund;
"Consolidated Revenue Fund" is defined as:
2....
... the aggregate of all public moneys that are on deposit at
the credit of the Receiver General;
the term "public money" [as am. by S.C. 1980-81-
82-83, c. 170, s. 2] is defined as:
2....
"public money means all money belonging to Canada received
or collected by the Receiver General or any other public
officer in his official capacity or any person authorized to
receive or collect such money and includes
(a) duties and revenues of Canada,
(b) money borrowed by Canada or received through the issue
or sale of securities,
(c) money received or collected for or on behalf of Canada,
and
(d) money received by Canada for a special purpose;
Subsection 11(1) provides that:
11. (1) ... all public money shall be deposited to the credit
of the Receiver General.
Finally, subsection 24(1) provides, and I quote:
24. (1) At the commencement of each fiscal year or at such
other times as the Treasury Board may direct, the deputy head
or other person charged with the administration of a service for
which there is an appropriation by Parliament or an item
included in estimates then before the House of Commons shall,
unless otherwise directed by the Board, prepare a division of
such appropriation or item into allotments in the form detailed
in the estimates submitted to Parliament for such appropriation
or item, or in such other form as the Board may prescribe.
It seems clear, on a fair reading of those provi
sions, that not only moneys received from income
tax assessments but all moneys collected by the
Federal Government on its own account are paid
into and form part of the Consolidated Revenue
Fund which Parliament appropriates to various
proposed items of expenditure. It seems equally
clear that the expenditures authorized under sec
tion 24 are quite unconnected with the source.
As Twaddle J.A. stated when expressing the
judgment for the majority of the Court of Appeal
of Manitoba in the case of Re MacKay et al. and
Government of Manitoba (1985), 23 C.R.R. 8, at
page 12:
The citizen pays a tax: the state uses it not as the citizen's
money, but as part of a general public fund. As the Supreme
Court of the United States pointed out in Buckley v. Valeo,
supra, at p. 669 "... every appropriation made by Congress
uses public money in a manner to which some taxpayers
object". The notion of a taxpayer "paying for" government
programmes is not strictly in accord with the fact that, whilst
the taxpayer pays some of the money that enables the govern
ment to embark on programmes, the government alone is
responsible for the programmes on which the money is spent.
Monetary support by the state for the expression of minority
views, however distasteful to the majority or to another minori
ty group, cannot offend the conscience of those opposed to the
viewpoint. No one is compelled to agree with the minority view
nor forbidden to espouse or express a contrary one. To borrow
the words of Dickson C.J.C. in R. v. Big M Drug Mart, supra,
"No one is ... forced [by the impugned sections of the Elec
tions Finances Act] to act in a way contrary to his beliefs or his
conscience".
The Constitution does not guarantee that the state will not
act inimically to a citizen's standards of proper conduct: it
merely guarantees that a citizen will not be required to do, or
refrain from doing, something contrary to those standards
(subject always, of course, to the reasonable limitations recog
nized by s. 1 of the Charter).
Two other American cases were decided on the
same principle, namely: Autenrieth v. Cullen, 418
F.2d 586 (9th Cir. 1969) and Barton v. C.I.R., 737
F.2d 822 (9th Cir. 1984). Notwithstanding the
obvious differences in our systems of government
and in the statutes which govern appropriations, I
find that the views expressed by the Supreme
Court of the United States in the Buckley case
[Buckley v. Valeo, 96 S.C. 612 (1976)], and by
the Ninth Circuit Court of Appeals in the other
two American cases, are fully applicable and quite
persuasive. Medhurst J. of the Alberta Court of
Queen's Bench also came to the same decision in
Winterhaven Stables Ltd. v. Attorney-General of
Canada (1986), 29 D.L.R. (4th) 394.
The argument whether moneys expended for
military purposes are quite unconnected with the
source is really one of law and must, for the above
reasons, be decided against the plaintiff. Any
money withheld by the plaintiff is not withheld
from military expenditures but from the sum of all
of the moneys in the Consolidated Revenue Fund,
from which all Government expenditures are
financed by reason of the operation of the Finan
cial Administration Act and of our very system of
government.
The plaintiff's case of necessity, because of the
relief claimed, centers on paragraph 2(a) and sub
section 15(1) of the Charter. They are reproduced
hereunder for the sake of convenience:
2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
15. (1) Every individual is equal before and under the law
and has the right to the equal protection and equal benefit of
the law without discrimination and, in particular, without
discrimination based on race, national or ethnic origin, colour,
religion, sex, age or mental or physical disability.
With regard to the application of the Charter of
Rights, counsel for the defendant argues in the
first instance that no part of the Constitution can
be prohibited or prevented from operating by any
other section. He also states that the Charter of
Rights, as part and parcel of the Constitution, does
not enjoy, over the other provisions of the Consti
tution, the overriding priority which it does over
each and every one of the other laws of Canada.
One cannot say that by reason of the Charter any
other section of the Constitution becomes uncon
stitutional or inoperative.
I find that these assertions by counsel for the
defendant constitute valid statements of the law.
The Charter of Rights and Freedoms is found in
the Constitution Act, 1982 [Schedule B, Canada
Act 1982, 1982, c. 11 (U.K.)]. Section 52 under
"PART VII, GENERAL" provides that "The Consti
tution 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 incon
sistency, of no force or effect." Subsection 52(1)
does not state that the Charter of Rights and
Freedoms is the only part of the Constitution
which enjoys that overriding power. Subsection (2)
of section 52 clearly states that all of the Constitu
tional Acts and amendments as well as the Consti
tution Act, 1982, which includes the Charter, form
the Constitution of Canada.
Heads 3 and 7 of section 91 of the Constitution
Act, 1867 [30 & 31 Vict., c. 3 (U.K.) [R.S.C.
1970, Appendix II, No. 5] (as am. by Canada Act
1982, 1982, c. 11 (U.K.) Schedule to the Consti
tution Act, 1982, Item 1)] provide that the Parlia
ment of Canada has exclusive authority over:
91....
3. The raising of Money by any Mode or System of Taxation.
7. Militia, Military and Naval Service and Defence.
In the case entitled Reference Re Bill 30, An
Act to amend the Education Act (Ont.), [1987] 1
S.C.R. 1148, Madam Justice Wilson of the
Supreme Court of Canada had this to say (refer
page 1197):
This does not mean, however, that such rights or privileges
are vulnerable to attack under ss. 2(a) and 15 of the Charter. I
have indicated that the rights or privileges protected by s. 93(1)
are immune from Charter review under s. 29 of the Charter. I
think this is clear. What is less clear is whether s. 29 of the
Charter was required in order to achieve that result. In my
view, it was not. I believe it was put there simply to emphasize
that the special treatment guaranteed by the constitution to
denominational, separate or dissentient schools, even if it sits
uncomfortably with the concept of equality embodied in the
Charter because not available to other schools, is nevertheless
not impaired by the Charter. It was never intended, in my
opinion, that the Charter could be used to invalidate other
provisions of the Constitution, particularly a provision such as
s. 93 which represented a fundamental part of the Confedera
tion compromise. Section 29, in my view, is present in the
Charter only for greater certainty, at least in so far as the
Province of Ontario is concerned. [Emphasis added.]
In the unreported decision of the Court of
Appeal of the Yukon in the case of Penikett v. R.,
[1988] 2 W.W.R. 481 (Yukon Territory C.A.),
the Court had this to say, at page 488:
We agree with the view adopted by the majority of the Court
of Appeal of Ontario where, in another context, they observed
that no part of the Constitution is made by virtue of s. 52
paramount over another. Each provision, they noted, must be
read in light of the other provisions, unless otherwise specified:
... Ref re an Act to Amend the Education Act (1986), 53
O.R. (2d) 513, 23 C.R.R. 193, 25 D.L.R. (4th) 1 at 54, 13
O.A.C. 241 (sub nom. Ref. re R.C. Separate High Sch. Fund
ing), appeal dismissed by the Supreme Court of Canada 25th
June 1987 [now reported [1987] 1 S.C.R. 1148 (sub nom. Ref.
re Bill 30, an Act to Amend the Education Act), 40 D.L.R.
(4th) 18, 20 O.A.C. 321, 77 N.R. 241].
This important factual distinction applies even
more emphatically to counter another of the argu
ments of counsel for the plaintiff to the effect that
the relief sought should be granted because in both
World War I and World War II the Canadian
Government recognized the status of conscientious
objectors by exempting them from actual military
service. The conscription laws from which these
people were being exempted would have forced
them to actually participate in the violent acts of
war and in the killing of other human beings.
Needless to say the situation before me is an
entirely different one.
I simply cannot accept the argument of counsel
for the plaintiff that, because the Constitution is to
be considered as a living, breathing instrument
subject to variations in interpretation as the nation
progresses and attitudes change, Head 7 of the
Constitution Act, 1867 above-cited should now be
interpreted somehow to mean defence by strictly
non-violent means. The proposition is absurd, not
only because of the clear and unambiguous mean
ing of the words themselves but also because the
great majority of Canadians as well as the three
major political parties obviously still consider the
military defence of Canada by force of arms to be
one of the very important roles of the Federal
Government as mentioned in the Constitution.
It follows that, if one attempts to attain by
means of paragraph 2(a) or of subsection 15(1) of
the Charter the result sought by the plaintiff, the
right of the Parliament of Canada to tax for
military purposes, as clearly provided for in the
Constitution, would be frustrated, at least in so far
as any conscientious objectors are concerned.
I fail to see how subsection 15(1) could apply in
any event: requiring the plaintiff to pay the same
taxes as any other Canadian resident taxpayer
with the same taxable income cannot constitute
discrimination. The only section which can in any
way be considered relevant to the issue is para
graph 2(a).
Counsel for the plaintiff relied on and quoted
extensively from the reported case of R. v. Big M
Drug Mart Ltd., et al., [1985] 1 S.C.R. 295 and
from R. v. Edwards Books and Art Ltd., [1986] 2
S.C.R. 713. I have carefully read the cases and
particularly the passages on which the counsel for
the plaintiff relies. I shall refrain from quoting
them as there is nothing therein which, in my view,
in any way binds me or even might persuade me to
adopt the conclusion which he urges upon me. As
to the subject-matter of the cases both were con
cerned with the constitutionality of ordinary legis
lation and not with other portions of the Constitu
tion itself. The Big M case dealt with the
constitutionality of the Lord's Day Act [R.S.C.
1970, c. L-13] which was judged to be unconstitu
tional. The Edwards Books case dealt with the
constitutionality of the Retail Business Holidays
Act [R.S.O. 1980, c. 453] of the Province of
Ontario. The Act was held to be constitutional and
to not infringe either sections 2, 7 or 15 of the
Charter. In neither case is there a question of
attempting to use one part of the Constitution to
nullify or infirm another part. What is really
important however is that in both cases the legisla
tion imposed actual restraints on the normal rights
of individuals in a free society to do business or to
carry on with their normal legitimate activities.
Such is certainly not the case here. As previously
stated, the plaintiff is merely being taxed for gen
eral federal purposes and the expenditures for
military purposes are made entirely by the Federal
Authority without any personal participation by
the plaintiff in any way. Her freedom to practice
the tenets of her religion cannot reasonably be held
to be affected since she neither directly nor in
directly participates in the expending for military
purposes of the moneys collected by the Receiver
General.
It appears also that none of the remedies
requested in the plaintiff's prayer for relief could
legally be granted. The request for a declaration to
the effect that the plaintiff is not required to pay
the percentage of our net federal tax owing which
would be equal to the percentage of the federal
budget allocated to military expenditures would
have to be denied because, for the reasons previ
ously stated, there exists no connection whatsoever
between the payment by taxpayers of income tax
to the Receiver General to be credited to the
Consolidated Revenue Fund and the payment
from such fund of whatever sums Parliament
might have appropriated for military purposes.
The plaintiff also requests an order to the effect
that the moneys be paid to the Peace Tax Fund or
for such other peaceful purposes as this Honour
able Court may decide. The plaintiff, in effect, is
requesting that the Court usurp the powers of
Parliament and actually appropriate moneys des
tined by law to the Consolidated Revenue Fund for
appropriation by Parliament. This would fly
directly against one of the most basic tenets of our
Constitution namely, the division of powers.
It seems clear that the issue raised, i.e. that the
statement of claim discloses no reasonable cause of
action, requires for its disposition neither addition
al pleadings nor any evidence and may be disposed
of at this stage (refer Attorney General of Canada
v. Inuit Tapirisat of Canada et al., [1980] 2
S.C.R. 735).
Where it is patently clear to the judge hearing
the motion that the claim is without legal justifica
tion then it should be struck out. This in my view
is the case here contrary to that which existed in
the case of Twinn v. Canada, [1987] 2 F.C. 450
(T.D.), on which the plaintiff relies. In that case
Strayer J. of this Court stated, at page 458:
With respect to the grounds stated in Rule 419(1)(a), it is
important to note that it requires that there be "no reasonable
cause of action". The significance of this language was clearly
explained by Pratte J. in Creaghan Estate v. The Queen,
[1972] F.C. 732 (T.D.), at page 736 where he said that the
inclusion of the word "reasonable" means that the Court need
not decide whether the suit is truly founded in law but instead
whether, assuming all the facts alleged in the statement of
claim to be true, the plaintiff has an "arguable case". LeDain
J. said in Dowson v. Government of Canada (1981), 37 N.R.
127 (F.C.A.), at page 138 that to strike out on these grounds it
must be "plain and obvious that the action cannot succeed".
This statement was approved by the Supreme Court of Canada
in Operation Dismantle Inc. et al. v. The Queen et al., [1985] 1
S.C.R. 441, at pages 450, 487. I understand this to mean that a
judge hearing such a motion should not strike out a statement
of claim just because he does not think the plaintiff's case is
sound in law, if it is possible that a trial judge might uphold the
claim. [Emphasis added.]
I fully accept those statements of the law and I
find that in the case before me the test has been
met by the defendant.
There are also very practical obstacles to the
remedies requested by the plaintiff being granted.
One can easily envisage government actions and
policies, both present and proposed, to which cer
tain taxpayers and possibly a great number of
taxpayers might conscientiously and out of deep
and sincere moral and religious convictions, con
sider to be totally wrong, reprehensible, unjustified
and even evil. One such issue on which public
attention is being focused today is the extremely
divisive question of whether public moneys should
be expended for abortions. If each of those taxpay
ers who might be conscientiously objecting to this
policy were entitled by law to withhold a percent
age of income tax, complete chaos would result
and orderly government would break down. If the
freedom of conscience of the plaintiff were in fact
being infringed, section 1 of the Charter could
probably be successfully invoked since it would
appear to be a reasonable limit on the plaintiff's
freedom, which could be demonstrably justified in
a free and democratic society.
The motion will accordingly be allowed, the
plaintiffs statement of claim struck out and the
action dismissed with costs.
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.