Operation Dismantle Inc. et al. v. Canada, Government of, The Prime Minister, Attorney General of Canada, Secretary of State for External Affairs and Minister of Defence, (1983) 49 N.R. 363 (FCA)

• Judge: Pratte, Ryan, Le Dain, Marceau and Hugessen, JJ.
• Court: Federal Court of Appeal (Canada)
• Case Date: November 28, 1983
• Jurisdiction: Canada (Federal)
• Citations: (1983), 49 N.R. 363 (FCA)

Operation Dismantle Inc. v. Can. (1983), 49 N.R. 363 (FCA)

MLB headnote and full text

Operation Dismantle Inc. et al. v. Canada, Government of, the Prime Minister, Attorney General of Canada, Secretary of State for External Affairs and Minister of Defence

(A-1331-83)

Indexed As: Operation Dismantle Inc. et al. v. Canada, Government of, The Prime Minister, Attorney General of Canada, Secretary of State for External Affairs and Minister of Defence

Federal Court of Appeal

Pratte, Ryan, Le Dain, Marceau and Hugessen, JJ.

November 28, 1983.

Summary:

A group of organizations and unions sued the defendants, claiming a declaration that the federal government's decision to allow cruise missile testing in Canada was unconstitutional as being a violation of the rights contained in the Canadian Charter of Rights and Freedoms. The plaintiffs also sought an injunction prohibiting the cruise missile testing, and damages. The defendants moved to strike out the plaintiffs' statement of claim on the ground that it disclosed no reasonable cause of action. The Federal Court of Canada, Trial Division, in a decision unreported in this series of reports, dismissed the motion. The defendants appealed.

The Federal Court of Appeal allowed the appeal and struck out the plaintiffs' statement of claim.

Administrative Law - Topic 3202

Judicial review - General - Scope of review - The Federal Court of Appeal discussed the scope of judicial review by the courts of the exercise of the royal prerogative power - See paragraphs 16 to 18, 36 to 39 and 64 to 76.

Civil Rights - Topic 201

Life - General - The Federal Court of Appeal held that the federal government's decision to allow the testing of air- launched cruise missiles in Canada did not violate the right to life as guaranteed in s. 7 of the Canadian Charter of Rights and Freedoms - See paragraphs 10, 42, 56 to 61 and 82 to 84.

Civil Rights - Topic 201

Life - General - A judge of the Federal Court of Appeal stated that the right to life in s. 7 of the Canadian Charter of Rights and Freedoms did not protect the right not to be subjected to physical danger - See paragraph 10.

Civil Rights - Topic 1200

Security of the person - General - The Federal Court of Appeal held that the federal government's decision to allow the testing of air-launched cruise missiles in Canada did not violate the right to security of the person as guaranteed in s. 7 of the Canadian Charter of Rights and Freedoms - See paragraphs 29, 42, 56 to 61 and 82 to 84.

Civil Rights - Topic 1200

Security of the person - General - A judge of the Federal Court of Appeal stated that the phrase "security of the person" in s. 7 of the Canadian Charter of Rights and Freedoms must be used in conjunction with the phrase "liberty and security of the person" to refer to freedom from arrest and detention and to protection against arbitrary interference with that liberty - See paragraph 8.

Civil Rights - Topic 8302

Canadian Charter of Rights and Freedoms - General - Effect of - A judge of the Federal Court of Appeal stated that the Charter imposed no duty on legislatures and governments in Canada to protect fundamental rights and freedoms, but merely prevented them from adopting or making decisions which would infringe or deny those rights and freedoms - The judge stated that when a person attacked a ministerial decision on the ground that it violated the Charter, he must prove that this decision infringed upon or denied his rights under the Charter - See paragraph 10.

Civil Rights - Topic 8302

Canadian Charter of Rights and Freedoms - General - Effect of - The Federal Court of Appeal held that the Canadian Charter of Rights and Freedoms did not protect against breaches of its rights by private individuals acting without official function or by foreign powers - See paragraphs 10 and 83.

Civil Rights - Topic 8304

Canadian Charter of Rights and Freedoms - General - Application of - General - The Federal Court of Appeal held that the exercise of royal prerogative or common law authority of the Crown, as it related to the making of foreign treaties and defence, was subject to the provisions of the Canadian Charter of Rights and Freedoms, because the prerogative was "within the authority of Parliament" within the meaning of s. 32(1) of the Charter - See paragraphs 5, 16 to 18, 36 to 39 and 68 to 76.

Civil Rights - Topic 8461

Canadian Charter of Rights and Freedoms - Interpretation - General - A judge of the Federal Court of Appeal stated that the words used in the Charter, and particularly in s. 7, should not be given so wide an interpretation that the courts, as a result, would be invited to substitute their opinions for those of Parliament on purely political questions - See paragraph 7.

Civil Rights - Topic 8506

Canadian Charter of Rights and Freedoms - Enforcement - Procedure - The plaintiffs alleged that a government decision was unconstitutional, because it violated the rights contained in s. 7 of the Canadian Charter of Rights and Freedoms - The Federal Court of Appeal held that the failure of the plaintiffs to allege in the statement of claim that the decision was not made in accordance with the principles of fundamental justice, or base their allegations on any fact, or allege that the decision directly infringed upon or denied the plaintiffs' right to life, liberty and security of the person, was a serious flaw - See paragraphs 10, 42 and 82.

Crown - Topic 305

Crown at common law - Crown in right of Canada - The Federal Court of Appeal discussed whether the exercise of the royal prerogative or common law authority of the Crown was subject to judicial review by the courts, and the scope of such review - The court held that the exercise of the prerogative, as it related to the making of foreign treaties and defence, was subject to the provisions of the Canadian Charter of Rights and Freedoms - See paragraphs 5, 16 to 18, 36 to 39 and 64 to 76.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose cause of action - A group of plaintiffs alleged that the federal government's decision to allow cruise missile testing in Canada was contrary to the Canadian Charter of Rights and Freedoms and sought an injunction to prohibit the testing - The Federal Court of Appeal struck out the plaintiffs' statement of claim, because it disclosed no triable issue or reasonable cause of action - See paragraphs 3 to 11, 19 to 28, 40, 46 and 56 to 61.

Statutes - Topic 1801

Interpretation - Intrinsic aids - Bilingual statutes - Reference to either language - A judge of the Federal Court of Appeal referred to the French and English versions of the Canadian Charter of Rights and Freedoms in determining the meaning of the rights guaranteed in s. 7 - See paragraph 59.

Words and Phrases

Within the authority of parliament - The Federal Court of Appeal discussed the meaning of, as found in s. 32(1) of the Canadian Charter of Rights and Freedoms - See paragraphs 16 to 18 and 36 to 39.

Cases Noticed:

Inuit Tapirisat of Canada et al. v. Attorney General of Canada, [1980] 2 S.C.R. 735; 33 N.R. 304, refd to. [paras. 4, 47].

Marcotte et al. v. Area Selection Board of the Atlantic Region of the Canadian Penitentiary Service et al., [1977] 1 F.C. 297; 13 N.R. 490, refd to. [para. 4].

R. v. Douglas, [1976] 2 F.C. 673; 13 N.R. 41, refd to. [para. 4].

R. v. Wilfrid Nadeau Inc., [1973] F.C. 1045; 1 N.R. 67, refd to. [para. 4].

Page v. Churchill Falls (Labrador) Corp. Ltd., [1972] F.C. 1141, refd to. [para. 4].

Chandler v. Director of Public Prosecutions, [1964] A.C. 763; [1962] 3 All E.R. 142 (H.L.), consd. [paras. 16, 39].

Hubbuck v. Wilkinson, [1899] 1 Q.B. 86 (C.A.), refd to. [para. 30].

Attorney-General v. De Keyser's Hotel Ltd., [1920] A.C. 508, refd to. [para. 38].

Blackburn v. Attorney-General, [1971] 2 All E.R. 1380 (C.A.), refd to. [paras. 39, 52, 76].

Laker Airways Ltd. v. Department of Trade, [1977] 1 Q.B. 643, refd to. [para. 39].

Reference Re Section 94(2) of the Motor Vehicle Act (British Columbia) (1983), 19 M.V.R. 63 (B.C.C.A.), refd to. [paras. 42, 60].

R. v. Randall and Weir (1983), 58 N.S.R.(2d) 234; 123 A.P.R. 234 (N.S. S.C.A.D.), refd to. [para. 42].

R. v. Hayden (1983), 23 Man.R.(2d) 315, refd to. [para. 42].

Rylands v. Fletcher (1866), L.R. 1 Ex. 265, refd to. [para. 54].

R. v. Miller and Cockriell, [1977] 2 S.C.R. 680; 11 N.R. 386; 31 C.C.C.(2d) 177; [1976] 5 W.W.R. 510; 70 D.L.R.(3d) 324, refd to. [para. 59].

Re Potma and the Queen, 41 O.R.(2d) 43 (Ont. C.A.), refd to. [para. 59].

Balderstone v. R. (1983), 23 Man.R.(2d) 125, refd to. [para. 64].

Re Bateman's Trusts (1873), L.R. 15 Eq. 355, refd to. [para. 71].

Liquidators of the Maritime Bank of Canada v. Receiver-General of New Brunswick, [1892] A.C. 437, refd to. [para. 71].

Nadan v. R., [1926] A.C. 482 (P.C.), refd to. [para. 71].

Jennings v. Whitby, [1943] O.W.N. 170, refd to. [para. 71].

R. v. Chandler and Others, [1962] 2 All E.R. 314, refd to. [para. 72].

In Re a Petition of Right, [1915] 3 K.B. 666, refd to. [para. 73].

China Navigation Co. v. Attorney-General, [1932] 2 K.B. 197, refd to. [para. 73].

Chicago and Southern Airlines v. Waterman S.S. Corp. (1947), 333 U.S. 103, appld. [para. 75].

Holtzman v. Schlesinger (1973), 484 F 3d 1307 (U.S. Court of Appeals), refd to. [para. 76].

Atlee v. Laird (1972), 347 F Supp. 689, affd. (1973), 411 U.S. 911, refd to. [para. 76].

Luftig v. McNamara et al. (1968), 373 F 3d 664, refd to. [para. 76].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [paras. 2, 7 to 8, 10, 14, 32, 41 to 42, 57 to 61, 82]; sect. 24(1) [paras. 9, 34]; sect. 32 [paras. 5, 17, 36, 38, 83].

Rules of Court (Fed.), rule 419(1)(a) [paras. 46 to 47].

Authors and Works Noticed:

de Smith, Judicial Review of Administrative Action (4th Ed.), pp. 286-287 [para. 39].

Halsbury's Laws of England (4th Ed.), vol. 8, paras. 889 et seq. [para. 71].

Counsel:

Ian Binnie, Q.C. and Graham Garton, for the appellants;

Lawrence Greenspon and Irwin Cotler, for the respondents.

This appeal was heard before Pratte, Ryan, Le Dain, Marceau and Hugessen, JJ., of the Federal Court of Appeal, at Ottawa, Ontario, on October 11 and 12, 1983. The decision of the Court of Appeal was delivered at Ottawa, Ontario, on November 28, 1983, when the following opinions were filed:

Pratte, J. - see paragraphs 1 to 11;

Ryan, J. - see paragraphs 12 to 30;

Le Dain, J. - see paragraphs 31 to 43;

Marceau, J. - see paragraphs 44 to 77;

Hugessen, J. - see paragraphs 78 to 84.