Gerard O'SULLIVAN v. Her Majesty the Queen (No. 2), [1991] 2 CTC 117

Muldoon, J.:—In this case are involved very serious considerations about the nature of Canada and whether the State is to be characterized legally and constitutionally as atheistic, secular or theocratic. In fact, the nature of the present proceeding is the plaintiff's appeal by way of trial de novo from the decision of Judge Mogan of the Tax Court dismissing his appeal, in file no. 90-691 (IT). The Crown moved to strike out the plaintiff's statement of claim — his means of appealing against the Tax Court decision — on most of the multiple grounds stated in Rule 419, by alleging:

(a) the statement of claim discloses no reasonable cause of action under Rule 419(1)(a) . . .; and

(b) the statement of claim is immaterial or redundant, is scandalous, frivolous, and vexatious, or is otherwise an abuse of the proceeds [sic] of the Court under Rules 419(1)(b), (c) and (f) . . .,

(c) the [Federal] Court lacks jurisdiction to grant the relief claimed.

The Crown's motion was allowed by Peter A.K. Giles, Esq., Associate Senior Prothonotary, who ordered that the plaintiff's statement of claim be struck out, but without applying any pejorative adjectives to it. The plaintiff now appeals from the prothonotary's order.

In filing his 1988 income tax return, Mr. O'Sullivan [hereinafter: the taxpayer] computed his tax and remitted the sum payable, less the amount of $50 which he withheld for the reason expressed in a letter attached to that return:

This money will be held in trust in solemn protest against the use of taxpayer's money to pay for the murder of the unborn.

In his notice of appeal in the Tax Court, the taxpayer stated his primary reason for appealing to be:

The use of taxpayers’ money to pay for the annual killing of an estimated 100,000 unborn children is a flagrant violation of law and cannot be justified by any method of tax assessment.

In light of the sum of $50 which the taxpayer withheld, it is not correct to say, as the Crown earlier did, that he is not seeking a change to his taxable income as assessed. In effect the taxpayer claims that the last $50 of tax which he would otherwise have had to pay is too much to accommodate his conscience in regard to its use in funding “the murder of the unborn". Obviously the taxpayer does not refer to unborn generations yet to come: he clearly means already conceived foetal humans, snuffed out in the process of terminating their mothers’ pregnancies.

Given the definition of a "human being" enacted by Parliament in section. 223 of the Criminal Code, some may criticize the expression “foetal human", but, of course, the human being's predecessor according to section 223 is a “child” or, one might equally logically say a baby, infant or foetal human as distinct from a juvenile human or an adult human. Not a pig or a puppy. When abortionists snuff out foetal humans, it is an occasion of humans killing their own species. This, it seems clear, is the taxpayer's view of it, and is his religious belief which the Crown attorney herein characterized as undoubtedly "sincere". It is based on the religious commandment which some juvenile and adult humans would extend to pigs and puppies, but which applies certainly to humans: "Thou shalt not kill.” The whole question of Parliament's purporting to define by ordinary legislation (subsection 223(1) of the Criminal Code) when the foetal sons and foetal daughters, the children of certifiably human parents become human beings is not a question directly in issue here, but it obviously is central to the taxpayer's religious beliefs. This matter merits further consideration, but first one ought to dispose of the matter of jurisdiction.

There is no doubt that the taxpayer has standing to brin this issue before the Court. As it had done before, the Crown alleged that the Tax Court (and hence, presumably, this Court, on appeal from the former) lacked jurisdiction. The learned Tax Court judge in this taxpayer's appeal, noted such objection on the Crown's part: and he either did not deal with it; or he held that it had been answered when the taxpayer “then stated orally that he wanted his federal income tax liability reduced by $1 as a sign that his conscience has been violated.”

It is not entirely clear in his reasons how Judge Mogan disposed of that issue. In any event, the Appeal Division of this Court has recently cast doubt on the matter in The Queen v. Optical Recording Corp., [1991] 1 F.C. 309, wherein the Court appears to immunize the Minister of National Revenue from judicial review at a taxpayer's behest or any other proceedings outside of the strict parameters and avenues of appeal provided in the Income Tax Act, R.S.C. 1952, c. 148 (am. S.C. 1970-71-72, c. 63) (the "Act"). While attempting to formulate his appeal in accordance with those strictures, the taxpayer concurrently, and apparently without the benefit of a solicitor's services, draws the Court's attention to section 52 of the Constitution Act, 1982 which proclaims the Constitution's hegemony over all other inconsistent laws. Despite the taxpayer's claim that any law which compels him to pay tax money to the State for distribution in part to fund abortion services is unconstitutional by reason, as he asserts, that it violates his fundamental freedom of conscience and religion, he is compliantly following what now may be the only appellate avenue open to him if, indeed, the Appeal Division's decision (at pages 319-21) in the Optical Recording case, supra, does immunize the Minister, and the operation of the Income Tax Act, from judicial review. On the other hand, that judgment does not prevent anyone from seeking a declaration against the Government of Canada.

The taxpayer's standing here, however, is the locus classicus for the type of relief he seeks. Prior to the landmark majority decision of the Supreme Court of Canada in Thorson v. A.-G. Canada, [1975] 1 S.C.R. 138; 43 D.L.R. (3d) 1, such a situation was as described therein at pages 144-45 (D.L.R. 6):

In my judgment, the principle stated in the Smith case [reported [1924] S.C.R. 331] is one of general application. This principle is that an individual has no status or standing to challenge the constitutional validity of an Act of Parliament in an action of this type unless he is specially affected or exceptionally prejudiced by it . . . The fact that the taxes of the plaintiff and the taxes of every taxpayer in Canada will be raised as a result of the implementation of the Official Languages Act is not, in my opinion, sufficient to constitute special damage or prejudice to the plaintiff so as to-enable the plaintiff to bring this action.

I think there is sound reason for this result. If every taxpayer could bring an action to test the validity of a statute that involved the expenditure of public money it would in my view lead to grave inconvenience and public disorder. It is for this reason, I believe, that the plaintiff has been unable to find any Canadian or English decision as authority for the position he is asserting.

Of course, in the present action the taxpayer is both “specially affected and exceptionally prejudiced” in his view of his constitutionally guaranteed freedom of conscience and religion, and in the view of others, maybe many of his co-religionists, he is in the same taxation plight as everyone else without any special or exceptional aspect about it.

The Thorson case, supra, is a landmark judgment because it was the first of a line of cases which made standing to challenge the constitutionality of legislation a matter of relatively easy attainment. It enunciated these principles according to the majority of the judges (at pages 145-163 (D.L.R. 7-19)):

A more telling consideration for me, but on the other side of the issue, is whether a question of constitutionality should be immunized from judicial review by denying standing to anyone to challenge the impugned statute. That, in my view, is the consequence of the judgments below in the present case. The substantive issue raised by the plaintiff's action is a justiciable one; and, prima facie, it would be strange and, indeed, alarming, if there was no way in which a question of alleged excess of legislative power, a matter traditionally within the scope of the judicial process, could be made the subject of adjudication.

The question of the constitutionality of legislation has in this country always been a justiciable question. Any attempt by Parliament or a Legislature to fix conditions precedent, as by way of requiring consent of some public officer or authority, to the determination of an issue of constitutionality of legislation cannot foreclose the Courts merely because the conditions remain unsatisfied: Electrical Development Co. of Ontario v. Attorney General of Ontario [reported [1919] A.C. 687], B.C. Power Corp. Ltd. v. B.C. Electric Co. Ltd. [reported [1962] S.C.R. 642]. Should they then foreclose themselves by drawing strict lines on standing, regardless of the nature of the legislation whose validity is questioned?

I recognize that any attempt to place standing in a federal taxpayer suit on the likely tax burden or debt resulting from an illegal expenditure, by analogy to one of the reasons given for allowing municipal taxpayers' suits, is as unreal as it is in the municipal taxpayer cases. Certainly, a federal taxpayer's interest may be no less than that of a municipal taxpayer in that respect. It is not the alleged waste of public funds alone that will support standing but rather the right of the citizenry to constitutional behaviour by Parliament where the issue in such behaviour is justiciable as a legal question.

The majority of the Supreme Court judges thereupon “as a matter of discretion" held that the appellant Thorson should be allowed to have his action determined on the merits.

So it was also determined, again by the majority in the case of Minister of Justice of Canada v. Borowski, [1981] 2 S.C.R. 575. That majority decision was written by Mr. Justice Martland for himself and Ritchie, Dickson, Beetz, Estey, McIntyre and Chouinard, JJ., with Laskin, C.J. and Lamer, J. (then) dissenting. Mr. Borowski, whose viewpoint was virtually identical with the taxpayer's, was accorded standing. Here are some pertinent passages from the majority judgment (at pages 594-596 (D.L.R. 603-604)):

The Thorson case was followed shortly afterwards by the case of Nova Scotia Board of Censors v. McNeil [reported [1976] 2 S.C.R. 265].

In that case the plaintiff sought to challenge the constitutional validity of certain sections of the Theatres and Amusements Act, R.S.N.S. 1967, c. 304 and certain Regulations made thereunder. He was a resident and taxpayer in the Province of Nova Scotia. He was concerned about the powers of censorship provided in that Act.

It is obvious that in this [McNeil] case certain classes of persons were directly affected by the operation of the Act and the regulations, i.e. film exchanges, theatre owners and cinematograph operators. A theatre owner who wishes to challenge the validity of the Act could have done so by showing a film whose exhibition had been refused by the Board and, thereafter, resisting the imposition of a penalty.

Notwithstanding these circumstances, the plaintiff was recognized by this Court as having the necessary legal standing to seek a declaration that the legislation was constitutionally invalid.

In both the Thorson and McNeil cases, the challenge to the legislation in question was founded upon their alleged constitutional invalidity. In the present case, the challenge is based upon the operation of the Canadian Bill of Rights. I agree with the view expressed by the Chief Justice that no distinction should be made between a declaratory action to obtain a decision on validity under the British North America Act and a declaratory action to obtain a decision on the operative effect in the face of the Canadian Bill of Rights. [This judgment was released some four months before the Charter's proclamation into force.]

The legislation under attack here is not declaratory or directory as in the case of the Official Languages Act nor is it regulatory as in the case of the Theatres and Amusements Act. It is exculpatory in nature. It provides that in certain specified circumstances conduct which otherwise would be criminal is permissible. It does not impose duties, but instead provides exemption from criminal liability. That being so, it is difficult to find any class of person directly affected or exceptionally prejudiced by it who would have cause to attack the legislation.

The legislation proposed to be attacked has a direct impact upon the unborn human foetuses whose existence may be terminated by legalized abortions. They obviously cannot be parties to proceedings in court and yet the issue as to the scope of the Canadian Bill of Rights in the protection of the human right to life is a matter of considerable importance. There is no reasonable way in which that issue can be brought into court unless proceedings are launched by some interested citizen.

In the light of the Thorson and McNeil cases, it is my opinion that the respondent should be recognized as having legal standing to continue with his action. In the Thorson case, the plaintiff, as an interested citizen, challenged the constitutional validity of the Official Languages Act. The legislation did not directly affect him, save in his position as a taxpayer. He had sought, without avail, to have the constitutional issue raised by other means. He was recognized to have status. The position is the same in the present case. The respondent is a concerned citizen and a taxpayer. He has sought unsuccessfully to have the issue determined by other means.

I interpret these cases as deciding that to establish status as a plaintiff in a suit seeking a declaration that legislation is invalid, if there is a serious issue as to its invalidity, a person need [sic] only to show that he is affected by it directly or that he has a genuine interest as a citizen in the validity of the legislation and that there is no other reasonable and effective manner in which the issue may be brought before the Court. In my opinion, the respondent has met this test and should be permitted to proceed with his action.

Joseph Borowski did indeed proceed with his action, which was dismissed by the Saskatchewan Court of Queen's Bench, whose said dismissal was upheld by the Court of Appeal. Borowski's appeal to the Supreme Court of Canada came on for hearing on October 3 and 4, 1988, but by that time section 251 of the Criminal Code with the impugned subsections (4), (5) and (6) thereof had been declared invalid by the Supreme Court in R. v. Morgentaler (No. 2), [1988] 1 S.C.R. 30; 44 D.L.R. (4th) 385. To this day Parliament has enacted no other law whatever in the place of section 251 on the subject of abortions. The Supreme Court on March 9, 1989, in such circumstances dismissed Mr. Borowski's appeal on the grounds that it had become moot and, thus, his standing had then eroded: Borowski v. A.-G. Canada, [1989] 1 S.C.R. 342; 57 D.L.R. (4th) 231. Through all, however, Borowski's standing was not placed in any doubt, until his appeal became merely theoretical, and the Supreme Court declined to adjudicate it.

In the case at bar, the taxpayer in light of the jurisprudence and of section 52 of the Constitution Act, 1982, c. 11, Schedule B (U.K.) surely has the standing as a taxpayer to bring, and this superior Court surely has jurisdiction to entertain, a suit for a general declaration of constitutional interpretation, and as a taxpayer he must also have the standing to seek such an interpretation in the context of his own appeal against his assessment of his own income tax liability. The latter must be so, as it most recently was unanimously affirmed, for example, by the Court Martial Appeal Court in /ngebrigtson v. The Queen, CMAC 315 (November 1, 1990) where, on appeal from conviction the appellant successfully challenged the constitutional validity of Standing Courts Martial in regard to paragraph 11(d) of the Charter. That amounts to judicial review invoked through another procedural route. In any event, the judiciary must take seriously the provisions of section 52 which nullifies the effect of any provisions of any law which are inconsistent with those of the Constitution. Applicants such as the taxpayer ought not to be thwarted merely by having sterile procedural obstacles raised against sincere efforts to vivify the Constitution's apparent imperatives.

The taxpayer's standing, and the Court's jurisdiction in this matter being established, the Court now turns to the viability of the taxpayer's statement of claim.

The Court, for the purposes of the Crown's application for the summary striking out of the taxpayer's statement of claim, must take all of its allegations of fact to be true, as if proved. Some significant passages expressed in Mr. O’Sullivan’s impugned statement of claim are as follows: (The taxpayer omits apostrophes "s" for possessives in his writing, so, rather than sprinkle the quotations with [sic], the missing apostrophes are simply supplied herein. The appellant is the taxpayer.)

1. The appellant, Gerard O'Sullivan, in the appeal heard on September 10, 1990 in the Tax Court of Canada, Toronto, by Mogan T.C.J. (90-691-IT), clearly demonstrated that his freedom of conscience and religion had been violated and infringed by his requirement to pay income tax which would be used to finance abortions. He demonstrated this by written and oral arguments based on the teachings of the Pope and the Christian church, on the testimony of outstanding Jewish writers, on the Bible, on the Criminal Code of Canada, the universal declaration of Human Rights, and on the testimony of Judges in the following cases — The Mills case, Operation Dismantle case, Big M. Drug Mart case, and the Prior case.

2. The appellant demonstrated that the unborn child's right to life was protected by Section 15 of the Charter of Rights & Freedoms, and Article 8 of the Universal Declaration of Human Rights. He proved that the child’s right to life is protected by Section 7 of the Charter.

3. The appellant showed that as his rights, under Section 2 of the Charter, had been violated and infringed, he was entitled to obtain a remedy in the Tax Court of Canada.

4. The appellant showed that, under Section 52 of the Constitution Act 1982, the law, which permits the use of taxpayer's money to finance abortion, is inconsistent with the Charter of Rights and, therefore, is of no force or effect.

5. The appellant argued that his case differs from the Prior case in that the deliberate killing of the innocent is taking place daily, and is not based on a subjective or futuristic opinion. The coercive link between the payment of income tax to finance abortion, and the deprivation of the life of the child, exists; and therefore meets the requirements of Justice Dickson in the "Operation Dismantle case” for a remedy to be sought.

7. The appellant's reliance on the Prior case was to show that he had the right to a remedy under Section 24(1) in the Tax Court of Canada. As explained above there is a fundamental difference in the two cases.

9. The appellant did not challenge the respondent's computation of his income tax, but ne does seek a remedy under Section 169 of the Income Tax Act.

10. His Honor Judge Mogan erred when he selected a statement of the Federal Court of Appeal in Prior v. The Queen to throw out all the above arguments. This statement applies strictly to the Prior case. His Honor's reasoning would place the Income Tax Act above the Charter of Rights & Freedoms, and Constitutional Act of Canada 1982. Under the guise of socialism any evil could then be perpetuated.

11. The appellant's freedom of conscience and religion is violated and infringed by the Income Tax Act. He is required to participate in the performance of abortions by financing them. This fact is a basic element of criminal law.

12. The appellant as a citizen of Canada and by his payment of lawful income tax shares in all functions of his government.

Relief Sought

The Plaintiff therefore claims as follows:

a) He is entitled to a remedy by a reduction of income tax for the year 1980, and every year thereafter.

b) That part of the law which permits the use of taxpayers' money to finance legal abortions has no force or effect; and therefore should be declared null and void under the power of Section 52 of the Constitutional Act 1982 given to this Court.

This statement of claim evinces the lack of a lawyer's services in its drafting.

The taxpayer was represented by counsel at the hearing of this appeal from the prothonotary's order striking his statement of claim. A most useful and thorough discussion of the issues of this case took place between counsel for each party and the Court.

Counsel for the taxpayer asserted that the State should be compelled to accede to the taxpayer's request for a reduction in his income tax on the basis of his religious tenets. Counsel referred to the preamble in the Charter which pertinently proclaims that "Canada is founded upon principles that recognize the supremacy of God .. .”. Counsel noted that the taxpayer is a religious believer in God, a Christian, a Roman Catholic. Accordingly, he posited, the State is obliged to accommodate this sincerely God-fearing taxpayer's imperative, to avoid offending God by contributing to so much of the country’s health care system as conducts abortions. Is that the necessary implication of the preamble's recognition of the supremacy of God?

The "supremacy of God" was inserted as an amendment to the Charter's preamble as a result of a motion made in the House of Commons by the Honourable Jake Epp, member for Provencher, Manitoba, in February 1981, and of necessity for its adoption, accepted by the Prime Minister of the day. The principles based upon the supremacy or God (and its companion basis, the rule of law) are not stated in the preamble but may, in part be found, or logically inferred from the Charter's text and the historical roots of Canada which also evinced those principles.

What does the recognition of the supremacy of God mean in constitutional and legal terms? After all, the supremacy of God is recognized by people of many similar and different religions; but their professed worship of God does not prevent them from killing, maiming and torturing each other, including, in many instances, their own co-religionists. Did the inclusion in Canada's constitution of recognition of the supremacy of God mean to make a theocracy of Canada? Hardly. Had the expression been inserted about a century or more, ago, it might have been taken to mean that Canada was a Christian State, or kingdom. Since the first settlement of western Europeans, at first almost exclusively the French, in this land nearly 400 years ago, the religions of North American Europeans were those of western Europe, principally England (later Britain) and France. The Roman Catholic faith to which the taxpayer here adheres, was implanted from the beginning in the early 1600s in New France, which was a virtual theocracy. The arrival of the British brought Protestantism, but the overwhelmingly Christian aspect of the population remained. So ingrained was the popular assumption of the eternally Christian complexion of the population, that whereas minority Roman Catholic and Protestant separate schools were constitutionally recognized, the majority were always content to find their educational formation imparted in public schools. It was thought then, and never foreseen otherwise, that the Canadian public would always remain nearly 100 per cent Christian. So, the taxpayer's religious beliefs and principles are well known in history and generally familiar to the population of Canada. Nevertheless, the late amendment to the Charter in 1981 cannot be construed to have converted Canada into a Roman Catholic theocracy, a Mennonite theocracy, an Anglican theocracy or a Jehovah's Witnesses' theocracy any more than Canada was thereby converted into an Islamic theocracy, (whether Sunnite or Shiite), a Hindu theocracy, a Sikh theocracy, or a Buddhist theocracy.

What then is meant by this preamble? Obviously it is meant to accord security to all believers in God, no matter what their particular faith and no matter in what beastly manner they behave to others. In assuring that security to believers, this recognition of the supremacy of God means that, unless or until the Constitution be amended — the best of the alternatives imaginable — Canada cannot become an officially atheistic State, as was the Union of Soviet Socialist Republics or as the Peoples' Republic of China is understood to be. Some may see little difference between an atheistic State and a secular State, but it is apparent that when the former begins, as several have done, to enforce its basic principles, it must thereby suppress theistic religions and the believers who practice such religions. The fact that the political "philosophy" with its "party line" is a non-theistic religion never deters those who lust for political power and control. A secular state just leaves religion alone, with one exception, founded on pure reason.

The preamble to the Charter provides an important element in defining Canada, but recognition of the supremacy of God, emplaced in the supreme law of Canada, goes no further than this: it prevents the Canadian state from becoming officially atheistic. It does not make Canada a theocracy because of the enormous variety of beliefs of how God (apparently the very same deity for Jews, Christians ana Muslims) wants people to behave generally and to worship in particular. The preamble's recognition of the supremacy of God, then, does not prevent Canada from being a secular state.

Indeed, section 1 of the Charter directly defines Canada in purely secular terms by guaranteeing

. . . the rights and freedoms set out in it subject only to such reasonable [but not, or not necessarily, religious] limits prescribed by law [not religion] as can be demonstrably justified [again, reason, not necessarily religion] in a free and democratic society.

Thus, defining Canada as a "free and democratic" society is to avoid defining it in religious terms such as "très chrétien" or “Islamic”, or the like.

The taxpayer's counsel also argued that to compel Mr. O'Sullivan to pay over money to the government as taxes, some of which goes to pay for the aborting of foetal human life, is to violate that taxpayer's Charter guaranteed "freedom of conscience and religion". Counsel argued against the "no nexus" approach which was taken by both the Trial and Appeal Divisions of this Court in the case of Jerilynn Prior v. The Queen, [1988] 2 F.C. 371; [1988] 1 C.T.C. 241; 88 D.T.C. 6207; affd (1990), 101 N.R. 401; [1989] 2 C.T.C. 280; 89 D.T.C. 5503.

In the Trial Division, Mr. Justice Addy cited pertinent provisions of the Financial Administration Act, R.S.C. 1970, c. F-10 and the majority reasons expressed by Twaddle, J.A. of the Manitoba Court of Appeal in McKay v. Government of Manitoba, 23 C.R.R. 8. Addy, J. also wrote on this issue at 246 (D.T.C. 6211; F.C. 382):

. . . 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 oe denied because, for the reasons previously 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.

In the Appeal Division, Mr. Justice Marceau, for a unanimous panel, first indicated that he adopted the judgment of Addy, J., seeing "no purpose in trying to say differently what he has already said". Then, Marceau, J.A. wrote this at 282 (D.T.C. 5505):

. . . It is clear that the action of the appellant could only succeed if the taxes levied on the appellant's income from employment or business are sufficiently connected to the moneys expended for military purposes, so as to render the payment of taxes an insult to the beliefs and conscience of the appellant as regards the use of violence. The motions judge was right in finding that the existence or absence of such connection was strictly a question of law to be answered in the light of the provisions of the Income Tax Act, the Constitution Acts 1867 to 1982, and the Financial Administration Act.

The Supreme Court of Canada refused to give Dr. Prior leave to appeal on February 22, 1990, and only months later, on September 20, 1990, it dismissed her application for reconsideration.

To pass off the present taxpayer's understanding or that of Dr. Prior, of the contribution which all taxpayers make and every taxpayer makes to the projects, services and programs of the government which exacts the payment of taxes, as having no connection the one to the other, is perhaps little more than lawyers’ solemn sophistry, for patriots and politicians are always telling Canadians how much Canadians ought to admire the exploits of the Canadian Forces and the universality of Canada's health care system. On the other hand, the Auditor General annually demonstrates in what regard the folks in charge of governmental services and programs waste the taxpayers' money. That money is neither extra-territorial, nor extra-terrestrial. The nexus, despite the defendant's counsel's erudite arguments, is real and really understood by a dignified, self-governing populace.

On the other hand, Canada is not a dictatorship never scrutinized by the people. Whereas there have been, and still are, conscientious people who courageously oppose tyrannical governments throughout the world, Canada's is truly, as well as constitutionally, “a free and democratic society". Opposition to the law as well as the government's projects, services and projects can be legally expressed firstly at election balloting, secondly in Parliament and thirdly in the courts. Other means reside in letters to newspapers and letters and petitions to Members of Parliament. If, after all that expression of dissent one oses, there is no other legal recourse.

The taxpayer here is lawfully pursuing the resort to law as administered by the Court. His counsel invokes paragraph 2(a) of the Charter, the constitutionally entrenched "freedom of conscience and religion". He argues that the taxpayer's freedom of conscience and religion is infringed by being compelled by the government to pay over that portion of his taxes which proportionately represents financial support for abortions. It is correctly argued that the constitutional guaranty of that freedom means not only that the State must not infringe it, but also that the State must positively defend it from all infringement, or else there is no such guaranty. So, subject to the secular strictures expressed in section 1 of the Charter, everyone is free to entertain, openly to declare, and to practise through worship or outward manifestation freely accepted or chosen religious beliefs without hindrance or reprisal: and the State is bound to defend this freedom along with the other rights and freedoms guaranteed by and in the Charter.

Does legal compulsion to pay taxes some of which to support abortions mean State coercion which infringes freedom of religion and conscience? It probably does, but in any event, given the rights of legal opposition in a free and democratic society it is no doubt justified in terms of section 1, which, as noted above imposes secular limitations on the freedom. After all, there are religions and religions. Some exact not only beliefs, but also manifestations or practices which are inimical to Canada's constitutional values and imperatives. For example religions or sects which exact suppression of the equal rights of women, or which exact the taking of stupefying drugs as a "sacrament", or which exact the involuntary servitude of some of their adherents, or which condone and incite their believers to the murder of an alleged blasphemer. Mr. O’Sullivan would be offended to be compared with such, and yet there have been surely, and may still be, some who regard his religion as being repugnant to the Constitution and its values even although it has been rooted in Canada for about four centuries. However, if this taxpayer's assertion that he is compulsorily made party to the abuse of the health care system by means of tax funded abortions which kill foetal humans, his plea of infringement of free dom of religion ought to be constitutionally, if not socially, as acceptable as anyone else's plea to the same effect.

There are certain vociferous believers in Canada who believe that their Creator has done such a lamentably poor job in forming female humans that they arrogate to themselves the right to improve on their God's allegedly fumbled handiwork. The improvement under the euphemistically misleading appellation of “female circumcision" is nothing less than the mutilation of their dependant daughters by cutting off the clitoris and outer and inner labia of the vulva. Whether called a manifestation of religion, ethnicity or culture this cruel mutilation is practised presumably because God bungled and to leave these girls and women as they were created would be to pander to sexual immorality. The adherents of this belief say it is a parent's right to inflict such mutilation upon their daughters, and moreover, they ought to have access to the health care system to do it. Can they legally withhold some taxes as compensation for the refusal of surgeons and hospitals to do this? How is their constitutional posture different from Mr. O'Sullivan's? What he seeks on a constitutional oasis ought, constitutionally, to be accorded to those undoubtedly sincere daughter mutilators.

The Court emphasizes the constitutional plane of approach, invoked by the taxpayer here, even although the practice of mutilation of daughters, which is nothing akin to the harmless male circumcision, causes irreversible bodily harm and should excite the attention of children’s aid societies. The taxpayer's counsel would not concede that this practice should be immunized and permitted by operation of paragraph 2(a) of the Charter. Indeed, he is correct, for if the State were to support that practice at the expense of the taxpaying public it would surely be infringing those unfortunate daughters’ guaranteed rights to “security of the person" enunciated in section 7 of the Charter. Section 28 emphasizes female persons' equal standing in all matters of rights and freedoms.

In R. v. Morgentaler (No. 2), supra, a majority judgment of the Supreme Court of Canada held that section 251 of the Criminal Code which criminalized abortions, but also permitted them to be authorized by therapeutic abortion committees violated the pregnant woman's right to the security of her person guaranteed by section 7, and that such infringement was not justified pursuant to section 1 of the Charter. Thus does the well known tenet of the taxpayer's religion collide with another right. It is on the same constitutional footing as the less well known tenet of those parents who have their daughters mutilated, for such daughters are surely guaranteed the right to security of their persons as much as pregnant women who seek to abort their pregnancies.

The Court holds that this secular State of Canada simply leaves conscience and religion quite alone, with one exception, founded on pure reason. The exception requires the State to intervene to prevent the practice or expression of conscience and religion from causing harm to others physically or mentally, or from violating the constitutionally guaranteed rights of others.

Moreover, the State may also intervene to enforce generally accepted standards of public decency, but such intervention requires a nicely balanced judgment on the part of the legislators and law enforcers. In every city and beach resort in Canada during summertime many persons are clad in such a minimal manner as to offend certain sincere persons' sense of decency. However the State, except in instances of public nudity or exposing an indecent exhibition in a public place, contrary respectively to section 174 and paragraph 175(b) of the Criminal Code (the former requiring the consent of the Attorney General to commence proceedings) and such similar specific offenses is not obliged, and probably not permitted, to enforce those certain persons' conscientious or religious objections against the rest of the populace. In any event, the criterion is stated to be an offence "against public decency or order", a secular standard which, of course, could include some persons' standard of conscience and religion but not necessarily everybody's conscience and religion.

When it comes to practices which harm others, obviously the State not only must not foster or promote them, but is justified pursuant to the Charter's section 1, to enact reasonable limits in law in order to prevent or to eradicate such harm, despite the guaranty of freedom of conscience and religion. Since those perceptions depend upon whose "ox is gored”, the Court must strive for fastidious objectivity. Here is how the taxpayers's counsel put the distinction between Mr. O'Sullivan and the daughter-mutilators:

And in one case [the surgical procedure] destroys, terminates . . . that particular young person, the child in utero and the . . . case . . . is what Mr. O'Sullivan wishes to prevent and not contribute towards. Whereas in the other case, I would imagine . . . that female circumcision can in fact be harmful to the health and could even possibly be an assault on the child. ***

It mutilates the child and that is what the religion is [standing] for and therefore . . . I don't see why that should not be forbidden. In one case it’s the harm that Mr. O’Sullivan is opposed to, in the other case in fact there is in fact. . . there may be harm if the religious belief is fostered. I think that’s the central distinction.

So it is that sincere, conscientious religious beliefs can so often blind one to the sincerity of other conscientious religious beliefs. Thus, while the secular State is bound to defend, that is to guarantee, everyone's freedom of conscience and religion, it is not bound or even permitted, to promote every expression or manifestation of conscience and religion, just as it is not bound to promote every manifestation of freedom of opinion and expression, some of which are defamatory. Indeed, it is the constitutional entrenchment of these very disparate freedoms which demonstrates the inherent secularity of the Canadian State. The sorry story of human strife and savagery in the Name of God amply shows that the resolutely secular State is the sure foundation of everyone's security, even if it leaves something, or much, for sincere believers to desire.

The unstated principles upon which Canada is founded, which “recognize the supremacy of God . . .”, do not enshrine either the taxpayer's beliefs and perceptions of God any more than they enshrine the daughter-mutilators' beliefs and perceptions of God. Mr. O'Sullivan is utterly free to adhere to, and to promote through any medium of communication, his beliefs about the moral depravity of abortion. The State cannot compel him to witness or to participate personally in any such deeds. It could forbid and prevent him from physically harming others. That, however is as far as his freedom of conscience and religion goes.

At the present time the Supreme Court of Canada declines to weigh the foetal human's right to life and security of the person as against the pregnant woman's right to security of the person. A provincial Court of Appeal has, in the Borowski case, supra, affirmed that a foetal human enjoys no such rights, whereas on the other hand the Supreme Court of Canada has in Morgentaler (No.2), supra, affirmed that legislated obstacles to terminating a pregnancy prematurely pose an infringement of a pregnant woman's right to the security of her person. In this situation there is no constitutional obligation on the State either to fund abortion facilities or not to fund them.

So it is, that in this free and democratic society, the taxpayer cannot exert his freedom of conscience and religion so as to compel the State to forgive him that notionally exact proportion of his assessed 1988 income tax which represents his share of the State's distribution of its revenues to fund abortion facilities. Perhaps it is paradoxical that it is the State’s own secularity which best secures everyone's freedom of conscience and religion. Theocracies past and present and officially atheistic states are seen to be notoriously bad at providing such security.

Because nothing human or organized by humans is perfect, there is a murky side to Canada's posture in regard to individual security. It is a precarious situation when Parliament, by means of ordinary legislation ( the Criminal Code) purports as earlier above mentioned, to define who or what is, and is not, a human being (and thereby vested with the rights to life and security of the person) according only to such easily amended legislation. The precariousness of this situation could be reified if, say, a transient parliamentary plurality decided that old humans had become a social burden or other inconvenience. Would the constitutional prohibition against discrimination on the basis of age save them? It has not currently saved thousands and thousands of foetal humans from widespread destruction through abortion.

The taxpayer is, no doubt, sorely and sincerely aggrieved over such widespread destruction, as he is entitled to be and as he is entitled to tell the world. He is not to be muzzled or shouted down on any tyrannical notion of what is "politically correct".

However, his conscientiously religious sense of grievance does not constitute an infringement of his manifest freedom of conscience and religion. Like Dr. Prior, whose same freedom has not been infringed either, the taxpayer therefore cannot legally withhold a portion, or be accorded a reduction of his assessed taxes on the basis of infringement of the freedom of conscience and religion.

Of course, if the O'Sullivans and the Priors of this country could, with numerous others, influence the election of a majority of Members of Parliament, that institution could, for secular reasons, dry up all funding of abortion facilities and/or national defence operations. But, such is the supremacy of the Constitution that not even a majoritarian Parliament could be permitted to carry out such programs for religious reasons, for even the majority may not prefer anyone's religious or conscientious tenets in legislative measures. A good illustration is the prohibition against weekly celebration of the Sabbath on Sunday in order to accommodate Christians; or if it were Saturday, to accommodate Jews; or if it were Friday, to accommodate Muslims. However nothing forbids the weekly observance of a secular "pause day" with no religious trappings, and if the majority of legislators in response to the wishes of their constituents choose Sunday for the one “pause day" per week, then Sunday it is: but if popular convenience shifted, any other day of the week could become the "pause day". So, also, a majority could cease funding abortions on the basis of a disastrously declining birth-rate, or of an apparently needed constraint on public spending, or on the basis of any other secular reason or purpose. In any such political movement this taxpayer could legitimately participate, for the Court could hardly enquire into the motive of each individual in a citizens’ coalition. The only constraint in constitutional terms would be against a legislative purpose overtly pandering to any particular conscientious or religious tenet. The relationship of citizens’ religions to their secular State is amply explained in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 18 D.L.R. (4th) 321 at 336 et seq., and again in Reed v. Canada, [1989] 3 F.C. 259; (1990), 41 C.R.R. 371, affd May 7, 1990, leave to appeal to the Supreme Court of Canada refused [1990] 2 S.C.R. (parts 1-5) x.

Because the taxpayer's action de novo is founded solely upon the alleged infringement of his freedom of conscience and religion, it is clear and obvious that because he, like Dr. Prior and all the other taxpayers, is under legal compulsion to pay income tax, he cannot legitimately be reproached by his conscience for he does not wish to pay the impugned portion of his tax and does not do so freely and voluntarily. There must be very few occasions when a Canadian Court would approve of evasion of a legal duty, but here no legal authority purports to impose upon the taxpayer any legal duty to participate personally in the counselling or performance of an abortion. Indeed, the taxpayer has a constitutional right to express his vehement condemnation of such practices, so long as he physically harms no one. So his freedom of conscience cannot be seen to be infringed.

The taxpayer's religious tenets run contrary to the State-tolerated practice of permitting abortions, and for reasons which the taxpayer cannot accept as justifiable.(lt must not be thought that the taxpayer's religion necessarily condemns all abortions, as for example, in the case of an ectopic pregnancy, but there is no evidence before this Court of the detailed belief-content of the taxpayer's religion. General opposition to abortion by Roman Catholics as a matter of faith is “a notorious historical fact" of which the Court may take judicial notice, in addition to its being stated in the statement of claim). The Charter guarantees the taxpayer the right to hold firm to his belief, even to denounce publicly State funding of abortions, and to participate in lawful political activities against such funding. So, it is not shown that his freedom of religion and the manifestation of his religion by worship and practice are infringed by the exaction of income tax. [R. v. Fosty and Gruenke (1990), 41 C.R.R. 20 at 33 (Man. C.A); R. v. Gruenke appeal heard by the Supreme Court of Canada, 12241 on May 10, 1991]. Indeed, the State does not even attempt such an infringement in these circumstances.

In this parliamentary democracy with its constitutionally entrenched imperatives, principles and other implicit values, adherents both of religions long established among the people and of religions recently introduced into Canada cannot admissibly claim or practice manifestations of religious law or dogma which are inimical to Canada's constitutional imperatives or values, or which are harmful to others including their own current or fallen-away coreligionists, or which circumvent the enforcement of validly enacted laws. In this Canadian democracy, the will of the majority expressed through the medium of Parliament is not to be thwarted unless it conflicts with those same constitutional imperatives, principles and values. No individual believer, or religious group of believers, asserting inter alia the freedom of conscience and religion, can exact a higher status or greater privilege than the majority of Canadians represented in the national law-making body. The secular State, therefore, cannot constitutionally enforce the imperatives of anyone's religious belief per se (except for the above noted, historically entrenched educational provisions), nor can the secular State permit ardent believers to incite their coreligionists to commit illegal or anti-constitutional acts in the name of religion or even in the Name of God. In any such conflict, it is the Constitution which must be resolutely defended, for it simply cannot on any pretext be seen to contain, under the rubric of any right or freedom, the seeds of its own dilution or destruction. No constitutional imperative, principle or value can be interpreted to be inconsistent with any other such imperative, principle or value.(Reference Re Bill 30, An Act to Amend the Education Act (Ont.) [1987] 1 S.C.R. 1148). No religious value or manifestation can admissibly distort or subvert validly enacted law or the entrenched constitutional imperatives, principles and values of Canada.

Whether it is still open to Parliament to prohibit the performance of any abortions upon pain of prosecution and punishment could in future be determined by legislation not yet passed and consequent litigation yet to be resolved. It seems much clearer in a constitutional context that public funding of abortion facilities could be diminished or deleted, but the taxpayer is clearly not entitled under the rubric of freedom of conscience and religion to usurp Parliament's function by taking the law into his own hands. Nor could he lawfully incite or counsel others to do so, if he were so inclined, which is not shown here to be the case. Until he and others of like mind can persuade Parliament to grant lawful exemptions to him and Dr. Prior and other persons motivated by religion, they simply have no case based on freedom of conscience and religion when it comes to paying lawfully assessed taxes.

For the Court to apply any less rigorous standard for this taxpayer would be to subvert the companion premise of “the supremacy of God" which of course is "[the supremacy of] . . . the rule of law.” In summation, the Court holds that:

1. this Court has jurisdiction in these proceedings to adjudicate the issue raised by Mr. O'Sullivan;

2. he has standing to raise the issue in these proceedings on the classical basis that he is a taxpayer who not only deems himself to be particularly affected by tax- supported funding of abortion facilities, but he is such, objectively, in view of the truth that he could hardly expect the Attorney General to support his view, and this is the taxpayer's own case, his statutorily provided means of appeal by trial de novo;

3. there is a definite nexus between the sums a taxpayer is compelled to pay and the programs upon which the government spends its tax-raised revenues, and it is obvious in the basis-of-standing jurisprudence that the plaintiff is classically described as a taxpayer, and as well in the operations of that “grand inquest of the nation”, Parliament itself, as well as inherent in the office of the Auditor General of Canada: the precise, pointed and ever proper inquiry is always "what has been done with the taxpayers’ money?” which is what those revenues are; this is the stuff of democratic politics;

4. the taxpayer's manner of asserting freedom of conscience and religion in this case “locates” or situates or places him for valid purposes of assessment of his assertion’s validity, among those like Dr. Prior and the other mentioned believers who assert special interest status to exempt themselves from the operation of ordinary laws (here, the Income Tax Act) as well as, notionally, those constitutional imperatives, principles and values which he and they would deny to others (the right to security of the person guaranteed by the Charter in section 7) for what he and they assert to be a higher moral purpose in conformity with his and their religious beliefs or religious laws — it must be noted that apart from asking this Court to ratify his withholding of $50 from his income tax in order to accommodate his higher moral purpose, this taxpayer Gerard O’Sullivan, has not been shown to have committed any unlawful act, nor to have incited or counselled others to commit any violent or other unlawful acts — the Court is not here concerned with the taxpayer's lawful political action, if he chooses to indulge in the same, with a view to persuading the State, if it could, to strip itself of its protective garment of secularity;

5. despite the volume and density of these reasons and notwithstanding foregoing conclusions 2 and 3, it is clear and obvious that the taxpayer's statement of claim does not disclose any reasonable cause of action as articulated, on the basis of freedom of conscience and religion or any other basis.

This appeal from the decision of the learned Associate Senior Prothonotary, in which he ordered the taxpayer's statement of claim to be struck out, is dismissed. Were it not for other litigation in which the taxpayer has been personally involved, as well as the preceding Prior case, the Court would have been inclined to dismiss this appeal without giving judgment for costs against this taxpayer. In the circumstances, however, the taxpayer, Gerard O'Suiïivan, shall pay to the defendant all of the latter's party-and-party costs of and incidental to this appeal from the Associate Senior Prothonotary's decision of May 17, 1991.

Appeal dismissed.