Canada v. Chiasson, 2003 FCA 155

                                                                                                                                            Date: 20030324

                                                                                                                                        Docket: A-216-02

                                                                                                                Neutral citation: 2003 FCA 155

CORAM:        STRAYER J.A.

EVANS J.A.

MALONE J.A.

BETWEEN:

                                                        HER MAJESTY THE QUEEN

                                                                                                                                                       Appellant

                                                                                 and

                                                    RICHARD GEORGE CHIASSON

                                                                                                                                                   Respondent

Heard at Vancouver, British Columbia, on March 4, 2003

JUDGMENT delivered at Ottawa, Ontario on Monday, March 24, 2003

REASONS FOR JUDGMENT BY:                                                                                   STRAYER J.A.

CONCURRED IN BY:                                                                                                            EVANS J.A.

                                                                                                                                              MALONE J.A.

                                                                                                                                            Date: 20030324

                                                                                                                                        Docket: A-216-02

                                                                                                                              Citation: 2003 FCA 155

CORAM:        STRAYER J.A.

EVANS J.A.

MALONE J.A.

BETWEEN:

                                                        HER MAJESTY THE QUEEN

                                                                                                                                                       Appellant

                                                                                 and

                                                    RICHARD GEORGE CHIASSON

                                                                                                                                                   Respondent

                                                        REASONS FOR JUDGMENT

STRAYER J.A.

[1]                 This is an appeal from a decision of Blanchard J. of the Trial Division in which he dismissed an appeal from the order of Prothonotary Aronovitch. Prothonotary Aronovitch dismissed a motion by the Appellant herein to have the Respondent's action struck. The action was for mandamus to require the Honours and Awards Directorate to submit to the Canadian Bravery Decorations Committee a nomination made by the Respondent. The Appellant's motion alleged that the Respondent's claim was moot, that his Statement of Claim disclosed no reasonable cause of action, that the remedy sought in the Statement of Claim, mandamus, was only available in an application for judicial review, and that it was an abuse of process because it sought something beyond the Court's jurisdiction. When Blanchard J. dismissed the appeal to him of the Prothonotary's decision, he also granted a motion by the Respondent to convert this action into an application for judicial review.

[2]                 In March, 2000, the Respondent nominated his father for a Canadian Bravery Decoration based on his participation in a rescue of American sailors at Louisburg, Nova Scotia in January, 1943. This nomination was made by the Respondent by submitting a nomination form to the Honours and Awards Directorate of the Chancellery of Honours, an office of the Governor General of Canada responsible for administering the various awards conferred by the Governor General. He also submitted a letter in support in which he mentioned that for the same act his father had received a Silver Lifesaving Medal from the U.S. Government.

[3]                 The nomination form provided by the Honours and Awards Directorate, and completed by the Respondent, states at the very beginning as follows: "Consideration is only given to incidents that have occurred less than 2 years prior to the date of submission". This limitation period was also confirmed through telephone conversations with staff of the Directorate. Lieutenant-General Gervais, Deputy Secretary of the Chancellery of Honours, in response to letters from the Respondent objecting to this 2 year rule, undertook to put the matter before the Canadian Decorations Advisory

Committee ("Committee"). On June 14, 2000 that Committee met and considered the Respondent's submissions. The minutes of that meeting record, inter alia, the following:

The Committee once again agreed to continue the practice which was adopted within the very first year of the creation of the decorations. Indeed, as early as 1972, the Committee agreed not to consider incidents which occurred more than two years prior to the date on which a proposal has been submitted. All such nominations have been declined...

It should be clearly noted here that the Committee did not conclude that the nomination was contrary to any provision in the Regulations under which it operates, nor did it consider the nomination on its merits. It simply rejected the nomination on grounds not prescribed either in the Regulations or in any other instrument binding on the Committee.

[4]                 The main issue before Blanchard J. was as to whether such a decision and such a policy of the Committee and of the Honours Directorate amount to an exercise of the royal prerogative and therefore are beyond judicial review. Both Prothonotary Aronovitch and Blanchard J. viewed the decision and the policy as involving a question of the Committee's powers by reference to the authority conferred on it under letters patent of January 28, 1997 (P.C. 1997-123) and the Regulations made thereby, namely the Canadian Bravery Decorations Regulations, 1996. It was not "plain and obvious" to them that the Respondent's Statement of Claim called for a judicial review of the exercise of the royal prerogative.

[5]                 On the appeal before us this is the essential issue as defined by the Appellant's Memorandum of Fact and Law. The Appellant argues that what is involved is an attempt to have the Court review the exercise of the royal prerogative of granting honours, a matter which is never justiciable. It is the subject matter of that exercise, the selection of those entitled to honours, which the appellant insists is one of discretion and political in nature which is not suitable for judicial determination: counsel confirmed that even if the authority to confer honours emanated from a statute, the actual selection of honourees would still not be justiciable.

[6]                 It is important to keep in mind that on a motion to strike on the basis that a proceeding raises no cause of action, it is not for the Prothonotary who hears the motion, nor for the Motions Judge on appeal, nor for this Court on appeal from him, to determine finally the issue of whether a reasonable cause of action is raised. Instead, such a motion to strike should be rejected unless it is plain and obvious that the proceeding has no possibility of success.

[7]                 The Appellant relies heavily on the decision of the Ontario Court of Appeal in Black v. Canada (2001) 54 O.R. (3^rd) 215. There the Plaintiff brought an action against the Prime Minister for a declaration that the Prime Minister had abused his power and had been guilty of misfeasance in office. The Plaintiff was a Canadian citizen who also obtained British citizenship in order to be appointed to a peerage in the United Kingdom. The British Prime Minister had recommended to the Queen such an appointment. However, before the appointment was made by Her Majesty, the Prime Minister of Canada advised the Queen that he was objecting to such an appointment of a Canadian citizen. The appointment was not proceeded with at that time. Mr. Black sued and the Defendants, the Prime Minister and the Government of Canada represented by the Attorney General of Canada,

moved to have the action struck out for disclosing no cause of action, on the grounds that what the Prime Minister of Canada had done was in the exercise of the royal prerogative concerning the granting of honours to Canadian citizens. It was argued that, as an exercise of the royal prerogative in respect of a purely discretionary matter, his action was beyond judicial review. The Ontario Court of Appeal upheld a decision of the Motions Judge to strike out the action. The Court confirmed that the royal prerogative consists of that residual state power which is not controlled by statute or statutory instrument, that it includes the conferral of honours on Canadians, and that such conferral involves purely political decisions for which the Prime Minister is responsible to Parliament, not the courts. Further, it held that no Canadian citizen has a right to an honour nor can there be any legitimate expectations of conferral of such honour which would restrict the exercise of that discretion. Whether the advice given by Prime Minister Chrétien to Her Majesty, was characterized as communicating Canada's policy on honours for Canadian citizens or advising on the intrinsic merits of a peerage for Mr. Black, it partook of the exercise of the royal prerogative in which the Prime Minister, on behalf of Canada, was expressing a view on the conferral of an honour on a Canadian citizen. As an exercise of that prerogative, his decision was non-justiciable.

[8]                 While the full scope of the justiciability doctrine need not be analyzed here in an appeal on a motion to strike, in my view a question is normally considered non-justiciable if there are no objective legal criteria to apply or no facts to be determined to decide the question, functions which normally are within the judicial role. It may also be non-justiciable if some other branch of government is conspicuously more appropriate, in our constitutional system, to decide the matter.

(For a similar analysis see Sossin, Boundaries of Judicial Review: The Law of Justiciability in Canada (Toronto, 1999) at 233-36). Unlike the Black case where there were no written instruments controlling the power being exercised by the Prime Minister, it is certainly arguable in the present case that the Regulations, once adopted, constitute a set of rules which provide criteria for a Court to determine if the procedure prescribed therein has been followed, and if the Committee has exercised the jurisdiction assigned to it. That the Regulations themselves were promulgated under the royal prerogative does not render questions of compliance with the procedure they prescribe matters plainly beyond judicial review.

[9]                 I respectfully agree with Laskin J.A. writing for the Ontario Court of Appeal in the Black case (paragraphs 60-63) that no one has a right to an honour, nor can he or she have a legitimate expectation, in a substantive sense, of receiving an honour. However, it is in my view arguable that where a procedure has been established by one public authority, in this case by way of Regulations published in the Canada Gazette, as to how and on what basis a specific Committee, another public body, is to deal with nominations made by any citizen, then a legitimate expectation is thereby created that the prescribed procedure will be followed to screen such nominations prior to the submission of a list of nominees for the exercise by the Governor General of the royal prerogative. (See e.g. Council of Civil Service Unions v. Minister for the Civil Service [1985] 1 A.C. 374 at 417-19 (H. of L.)). I am therefore not satisfied that it is plain and obvious that the principles enunciated in the Black case are applicable to the present case. In the Black case the Ontario Court of Appeal considered that review was being sought of advice given on honours for Canadians, a subject matter

beyond judicial review. In the present case it appears to me that review is being sought of the actions of a committee, acting under specific Regulations, in the process of screening applicants for honours as a preliminary to the decision by the Governor-General actually conferring such honours.

[10]            It is important to consider the nature of the function of the Canadian Decorations Advisory Committee and the source of its authority. That source may be found in the letters patent issued on January 28, 1997 (cited supra) which replaced earlier letters patent and which were the relevant letters in effect at the time of the events here in question. The letters patent declare:

AND WE DO direct that the award of the Canadian bravery decorations shall be governed by the annexed Canadian Bravery Decorations Regulations, 1996...

[11]            The Regulations are attached to the letters patent and provide in part as follows. Section 2 states that the Regulations apply in respect of these bravery decorations: the Cross of Valour, the Star of Courage, and the Medal of Bravery. Sections 3, 4, and 5 provide in general terms the nature of the act for which each of these decorations should respectively be given.

Eligibility is defined as follows:

Section 7 continues the Canadian Decorations Advisory Committee and fixes its composition. Its duties are spelled out in section 8 as follows:

The Regulations define who may make a nomination for an award.

Finally, section 17 states:

[12]            From the foregoing it will be seen that the only criteria in terms of the qualifying acts of bravery are those set out in sections 3, 4, and 5 of the Regulations. By section 6, a person is eligible for an award if he or she is, inter alia, a Canadian citizen. By paragraphs (b) and (c) of section 8 the function of the Committee is to determine whether a nominee is eligible (i.e. is she or he a Canadian citizen) and to submit to the Governor General lists of nominees who the Committee thinks have the

greatest merit. By section 10 any person may nominate anyone for a bravery decoration. Conspicuously absent from these Regulations is any time limit within which nominations must be made, following the act of bravery, in order for the Committee to be obliged under paragraph 8(a) to consider a nomination.

[13]            In the present case it is apparent that the Respondent was entitled under section 10 to nominate his father for a bravery decoration. There is, I believe, no dispute that his father is a Canadian citizen. It seems thus clearly arguable that the Committee was obliged under paragraph 8(a) to consider the nomination.

[14]            If, therefore, it is not plain and obvious that this nomination did not fall within the scope of the Regulations, and if it is not obvious that the Committee had no obligation to consider such a nomination with a view to determining whether it should be recommended to the Governor General under paragraph 8(c) as being among those with the "greatest merit", then the question remaining is whether it is plain and obvious that the refusal of the Committee to consider such a nomination on the basis of the date of the act of bravery is within the exercise of the royal prerogative and that it is immune from judicial review.

[15]            I am satisfied that it is not plain and obvious that these functions of the Committee fall within the royal prerogative. The Committee is not engaged in making a final decision as to who is to receive a bravery award: that is the role of the Governor General, a typical royal prerogative

reserved for her by the structure and process created by the Regulations including section 17. Insofar as the Committee is concerned, the relevant exercise of the royal prerogative occurred when the letters patent were issued in 1997. When that occurred, the prerogative was exercised by the Governor General on the advice of the Prime Minister to adopt the Regulations which continued a committee and defined its mandate.

[16]            It is, in my view, arguable that the royal prerogative having been used to create a body (the Canadian Decorations Advisory Committee) to perform a screening function prior to the exercise by the Governor General of her discretion in the grant of honours, that body is bound by the Regulations creating it and its activities may be subject to judicial review (See, for example, R. v. Criminal Injuries Compensation Board ex parte Lain [1967] 2 Q.B. 864 (Eng. Div. A.)). Further, it is arguable that the Committee has declined to exercise its powers in the terms in which they were granted. It has, for reasons not recognized in the Regulations, declined to act under section 8 to determine whether a person properly nominated under section 10 is eligible for a bravery award, and if so what would be his merit compared to others also eligible for such an award, all for the purposes of reporting to the Governor General. To say that the refusal of the Committee to consider such a nomination may be subject to judicial review is not to recognize that anyone has a right to, or a legitimate expectation of, an award. But arguably it could be a recognition that a person who is capable of nominating someone for an award has certain procedural rights to the consideration of that nomination by the Committee in accordance with duly adopted Regulations. Even if the Committee's ultimate opinion given to the Governor-General under paragraph 8(e) of the

Regulations, and the Governor-General's ultimate choices, are not judicially reviewable, this should not necessarily preclude the Court from reviewing the procedure and criteria followed by the Committee to see if they comply with the Regulations.

[17]            For these reasons I believe the Prothonotary and the Motions Judge were correct in their conclusions in not striking out the claim and I would dismiss the appeal. In doing so I expressly refrain from making any finding as to the ultimate merits of the Respondent's judicial review application: I simply conclude that the action out of which it grew cannot be dismissed at this stage on the grounds that it is plain and obvious that the subject matter is non-justiciable.

[18]            The Respondent should have his costs in this Court.

                                                                                                                                          (s) "B.L. Strayer"          

J.A.

I agree

"John M. Evans" J.A.

I agreee

"B. Malone" J.A.

                                                    FEDERAL COURT OF APPEAL

                              NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                              A-216-02

STYLE OF CAUSE:                           The Queen v. Richard George Chiasson

PLACE OF HEARING:                      Vancouver, British Columbia

DATE OF HEARING:                                     March 4, 2003

REASONS FOR JUDGMENT BY: STRAYER J.A.

CONCURRED IN BY:                                    EVANS J.A.

MALONE J.A.

DATED:                                                              March 24, 2003

APPEARANCES:

Mr. Richard Chiasson                                                                                           FOR THE APPELLANT

Mr. Jan Brongers

Mr. Edward Burnet                                                                                           FOR THE RESPONDENT

SOLICITORS OF RECORD:

Mr. Richard Chiasson

on his own behalf                                                                                                   FOR THE APPELLANT

Mr. Morris Rosenberg

Department of Justice

Ottawa, Ontario                                                                                                 FOR THE RESPONDENT