Operation Dismantle Inc. et al. v. Canada et al.,

• Jurisdiction: Federal Jurisdiction (Canada)
• Judge: Ritchie, Dickson, Estey, McIntyre, Chouinard, Lamer and Wilson, JJ.
• Citation: (1985), 59 N.R. 1 (SCC),JE 85-495,[1985] CarswellNat 151,13 CRR 287,[1985] 1 SCR 441,59 NR 1,[1985] SCJ No 22 (QL),1985 CanLII 74 (SCC),12 Admin LR 16,18 DLR (4th) 481,31 ACWS (2d) 45,[1985] ACS no 22
• Court: Supreme Court (Canada)
• Date: 09 May 1985

Operation Dismantle Inc. v. Can. (1985), 59 N.R. 1 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Operation Dismantle Inc. et al. v. Canada et al.

Indexed As: Operation Dismantle Inc. et al. v. Canada et al.

Supreme Court of Canada

Ritchie, Dickson, Estey, McIntyre, Chouinard, Lamer and Wilson, JJ.

May 9, 1985.

Summary:

A group of organizations and unions brought an action for a declaration that the federal government's decision to allow cruise missile testing in Canada was unconstitutional as being a violation of the rights guaranteed under s. 7 of the Charter of Rights and Freedoms. The plaintiffs also sought an injunction to prohibit the cruise missile testing, and damages. The government 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, dismissed the motion. The government appealed.

The Federal Court of Appeal, in a judgment reported (1983), 49 N.R. 363, allowed the appeal and struck out the plaintiffs' statement of claim. The plaintiffs appealed.

The Supreme Court of Canada dismissed the appeal. The court stated that the causal link between the decision to allow the testing and the alleged violation of the plaintiffs' rights under the Charter was too uncertain, speculative and hypothetical to sustain a cause of action.

Administrative Law - Topic 3202

Judicial review - Scope of - Cabinet decisions - The Supreme Court of Canada discussed the scope of judicial review by the courts of the Crown's exercise of its royal prerogative in matters of national defence or external affairs - See paragraphs 3, 28.

Civil Rights - Topic 8304

Canadian Charter of Rights and Freedoms - Application of - General - The Supreme Court of Canada held that cabinet decisions relating to matters of national defence and external affairs, which resulted from the exercise of royal prerogative or the common law authority of the Crown, were subject to review under the Charter, because the decisions were "within the authority of Parliament" within the meaning of s. 32(1) of the Charter - See paragraphs 3, 28.

Civil Rights - Topic 8367

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - The Supreme Court of Canada stated that any person seeking declaratory relief under s. 24(1) of the Charter, s. 52 of the Constitution Act or the common law must be able to at least show a threat of violation, if not an actual violation of their Charter rights - See paragraph 9.

Civil Rights - Topic 8543

Canadian Charter of Rights and Freedoms - Interpretation - Law, s. 52(1) - The Supreme Court of Canada stated that it was not adopting the view that the reference to "law" in s. 52 (1) of the Constitution Act was confined to statutes, regulations and the common law - The court opined that "it may well be that if the supremacy of the Constitution expressed in s. 52 is to be meaningful, then all acts taken pursuant to powers granted by law will fall within s. 52" - See paragraph 39.

Civil Rights - Topic 8546

Canadian Charter of Rights and Freedoms - Interpretation - Life, liberty and security of the person, s. 7 - The Supreme Court of Canada affirmed that the federal government's decision to allow the testing of cruise missiles in Canada did not violate the right to life, liberty and security of the person, because it could not be proved that the decision violated or threatened to violate any Charter rights - The court stated that any increased risk of nuclear war was mere speculation, which was incapable of constituting evidence of a violation of any Charter rights - See paragraphs 4 to 37.

Crown - Topic 305

Crown at common law - Crown in right of Canada - The Supreme Court of Canada held that cabinet decisions relating to matters of national defence and external affairs, which resulted from the exercise of the royal prerogative or common law authority of the Crown, were subject to review under the Canadian Charter of Rights and Freedoms - See paragraphs 3, 28.

Practice - Topic 1459

Pleadings - Statement of claim - Allegations - Truthfulness of - The Supreme Court of Canada stated that the rule that the material facts in a statement of claim must be taken as true for the purpose of determining whether it discloses a reasonable cause of action did not require that allegations based on assumptions and speculations be taken as true - The court stated that the very nature of such an allegation was that it could not be proven as true by the adduction of evidence - See paragraph 27.

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 violated s. 7 of the Charter of Rights and Freedoms and sought an injunction to prohibit the testing - The Supreme Court of Canada affirmed the striking out of the plaintiffs' statement of claim on the ground that no cause of action was disclosed - The court held that a violation or threatened violation of any Charter rights (increased risk of nuclear war) was mere speculation and not provable - See paragraphs 4 to 37.

Practice - Topic 5652

Judgments and orders - Declaratory judgments - When available - The Supreme Court of Canada stated that the preventative function of the declaratory judgment must be based on more than mere hypothetical consequences; there must be a cognizable threat to a legal interest before the courts will entertain the use of its process as a preventative measure - See paragraph 33.

Statutes - Topic 1801

Interpretation - Intrinsic aids - Bilingual statutes - Reference to either language - The Supreme Court of Canada referred to the French and English versions of the Canadian Charter of Rights and Freedoms in determining the meaning of the rights guaranteed under s. 7 of the Charter - See paragraph 4.

Words and Phrases

Law - The Supreme Court of Canada referred to the meaning of the word "law", as found in s. 52(1) of the Constitution Act, 1982 - See paragraph 39.

Words and Phrases

Within the authority of parliament - The Supreme Court of Canada referred to the meaning of the phrase "within the authority of Parliament", as found in s. 32(10) of the Charter of Rights and Freedoms - See paragraphs 3, 28.

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. [para. 7].

R. v. Solosky, [1980] 1 S.C.R. 821; 30 N.R. 380, refd to. [para. 33].

Redland Bricks Ltd. v. Morris, [1970] A.C. 652, refd to. [para. 35].

Chandler v. Director of Public Prosecutions, [1962] 3 All E.R. 142 (H.L.), refd to. [para. 52].

Baker v. Carr (1962), 369 U.S. 186, refd to. [para. 55].

Marbury v. Madison (1803), 5 U.S. 137, refd to. [para. 56].

United States v. Nixon (1974), 418 U.S. 683, refd to. [para. 56].

Brown v. The Board of Education (1954), 347 U.S. 483, refd to. [para. 56].

Rylands v. Fletcher, [1861-73] All E.R. 1 (H.L.), refd to. [para. 69].

Shawn v. Robertson et al. (1965), 46 D.L.R.(2d) 363, refd to. [para. 74].

McKay v. Essex Area Health Authority, [1982] 2 All E.R. 771, refd to. [para. 75].

McGhee v. National Coal Board, [1972] 3 All E.R. 1008 (H.L.), refd to. [para. 78].

Fleming v. Hislop, [1886] 11 A.C. 686, refd to. [para. 78].

Alphacell Ltd. v. Woodward, [1972] 2 All E.R. 475, refd to. [para. 78].

Leyland Shipping Co. v. Norwich Union Fire Insurance Society, [1918] A.C. 350, refd to. [para. 79].

Borowski v. Minister of Justice, [1981] 2 S.C.R. 575; 39 N.R. 331, refd to. [para. 80].

Thorson v. Attorney General for Canada, [1975] 1 S.C.R. 138; 1 N.R. 225, refd to. [para. 80].

McNeil v. Nova Scotia Board of Censors, [1976] 2 S.C.R. 265; 5 N.R. 43; 12 N.S.R.(2d) 85; 6 A.P.R. 85, refd to. [para. 80].

R. v. Big M Drug Mart Ltd. (1985), 58 N.R. 321; 60 A.R. 161 (S.C.C.), refd to. [para. 86].

Attorney-General for Canada v. Attorney General for Ontario (Labour Conventions, [1937] A.C. 326, refd to. [para. 89].

Dyson v. Attorney General, [1911] 1 K.B. 410, refd to. [para. 93].

Drummond Jackson v. British Medical Association, [1970] 1 All E.R. 1094, refd to. [para. 94].

Dowson v. Government of Canada (1981), 37 N.R. 127 (Fed. C.A.), refd to. [para. 94].

R. v. Miller and Cockriell, [1977] 2 S.C.R. 680; 11 N.R. 386; 70 D.L.R. (3d) 324 (S.C.C.), refd to. [para. 96].

Re Federal Republic of Germany and Rauca (1983), 41 O.R.(2d) 225, refd to. [para. 101].

Famous Players Canadian Corporation Ltd. v. J.J. Turner and Sons Ltd., [1948] O.W.N. 221, refd to. [para. 106].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [paras. 4, 95]; sect. 24(1) [para. 9]; sect. 32(1) [para. 28].

Federal Court Rules, rule 419(1)(a) [para. 6]; rule 1723 [para. 83].

Constitution Act, 1982, sect. 52 [paras. 9, 85].

Colonial Laws Validity Act (1865), 28 & 29 Vic., c. 63, sect. 2 [para. 86].

Statute of Westminster (1931), 22 Geo. 5; c. 4, sect. 7 [para. 86].

Authors and Works Noticed:

Fager, The Declaratory Judgment Action (1971), pp. 5, 179 [para. 31].

Borchard, Declaratory Judgments (2nd Ed. 1941), pp. 27 [paras. 32, 81]; 48-49 [para. 81].

Sharpe, Injunctions and Specific Performance (1983), pp. 30-31 [para. 34].

Weston, Political Questions (1925), 38 Harv. L. Rev. 296, p. 299 [para. 52].

Guest, Oxford Essays In Jurisprudence, "Justiciability" (1961) [para. 53].

Summers, Justiciability (1963), 26 M.L.R. 530 [para. 53].

Stevens, Justiciability: The Restrictive Practices Court Re-examined, [1964] Public Law 221 [para. 53].

Sharp, Judicial Review and the Political Question: A Functional Analysis (1966), 75 Yale L.J. 517 [para. 57].

Wechsler, Principles, Politics and Fundamental Law (1961) [para. 57].

Wechsler, Book Review (1966), 75 Yale L.J. 672 [para. 57].

Finkelstein, Judicial Self-Limitation (1924), 37 Harv. L. Rev. 338 [para. 57].

Bickel, The Least Dangerous Branch (1962) [para. 57].

Tigar, Judicial Power, The "Political Question Doctrine" and Foreign Relations (1970), 17 U.C.L.A.L.R. 1135 [para. 57].

Henkin, Is there a "Political Question" Doctrine? (1976), 85 Yale L.J. 597 [para. 57].

Redish, M.H., Abstention, Separation of Powers, and the Limits of the Judicial Function (1984), 94 Yale L.J. 71 [para. 63].

Zamir, The Declaratory Judgment (1961), p. 193 [para. 84].

La Forest, Canadian Charter of Rights and Freedoms an Overview (1983), 61 Can. Bar Rev. 19, p. 28 [para. 86].

MacDonald, R.St.J., The Relationship between International Law and Domestic Law in Canada; Canadian Perspectives on International Law and Organization (1974), p. 88 [para. 90].

Gotlieb, Canadian Treaty-Making: Informal Agreements and Interdepartmental Arrangements, Canadian Perspectives on International Law and Organization (1974), p. 230 [para. 91].

de Smith, Constitutional and Administrative Law (11th Ed.), p. 604 [para. 93].

Adler, M.J., Six Great Ideas (1981), p. 144 [para. 98].

Rawls, J., A Theory of Justice (1971), p. 213 [para. 100].

Dworkin, Taking Rights Seriously (1977), p. 267 [para. 101].

Counsel:

Gordon F. Henderson, Q.C., Lawrence Greenspon and Emilio S. Binavince, for the appellants;

W.I.C. Binnie, Q.C., and Graham R. Garton, for the respondents.

This appeal was heard at Ottawa, Ontario, on February 14-15, 1984, before Ritchie, Dickson, Estey, McIntyre, Chouinard, Lamer and Wilson, JJ., of the Supreme Court of Canada.

On May 9, 1985, the judgment of the Supreme Court of Canada was delivered and the following opinions were filed.

Dickson, J. - see paragraphs 1 to 40;

Wilson, J. - see paragraphs 41 to 110.

Estey, McIntyre, Chouinard and Lamer, JJ., concurred with Dickson, J.

Ritchie, J., did not participate in the judgment.