Jerilynn Prior v. The Queen, [1989] 2 CTC 280, 89 DTC 5503

Marceau, J.A.: — This is an appeal against a judgment of Addy, J. of the Trial Division of this Court whereby, upon motion made by the defendant, Her Majesty the Queen, pursuant to rule 419(1)(a) [1] of the Federal Court Rules, the action herein was dismissed on the ground that the statement of claim disclosed no reasonable cause of action.

Throughout the years 1982 to 1986, the appellant withheld a portion of the tax payable by her pursuant to the Income Tax Act approximately equal to the percentage of the federal budget used for military expenditures; she deposited such portion with the Peace Tax Fund of Conscience of Canada Inc. to be held in trust. The appellant, who is a member of the Society of Friends or Quakers, submits that her refusal to pay taxes for military expenditure is an exercise of her conscience and religious beliefs as guaranteed by paragraph 2(a) of the Charter. She adds that to compel her to pay taxes eventually used for military expenditure would breach her rights under subsection 15(1) of the Charter in that she, as a Quaker, would be denied the equal right to act according to her beliefs and to practice her religion. The basic allegation of her statement of claim is contained in paragraph 3 which reads:

The Plaintiff is a member of the Society of Friends or Quakers. It is a matter of the Plaintiff's conscience and a living expression of her religion and faith that she refuse to participate in any expenditures for military or war purposes, including the payment of tax which will be used for military or war purposes whether for defense or otherwise, providing such defense involves the intent to use or actual use of violence (hereinafter referred to as “military expenditures").

The action is a declaratory one. The prayer for reliefs reads as follows:

The Plaintiff prays for a declaration that the requirement to pay the full assessment of the Plaintiff's Federal tax owing for the 1982, 1983, 1984, 1985 and 1986 taxation years infringes the Plaintiff's constitutionally guaranteed rights under Sections 2(a) and 15(1) of the Canadian Charter of Rights and Freedoms, for a declaration that the Plaintiff is not required to pay the percentage of her net Federal tax owing equal to the percentage of the Federal budget allocated to military expenditures in contravention of her guaranteed rights under Section 2(a) and 15(1) of the Canadian Charter of Rights and Freedoms, and for an Order that the Plaintiff is entitled to pay such taxes to the Peace Tax Fund or for such other peaceful purposes as this Honourable Court may deem fit, with costs to the Plaintiff.

The attack against the judgment of the Trial Division is led on many grounds. It is submitted: that the motions judge misapplied the principles involved in a motion under rule 419; that he could not at this stage, before trial and the giving of any evidence, find that there is no nexus between the taxes she has to pay pursuant to the Income Tax Act and the defence expenditures of the Government, and therefore her Charter rights under paragraph 2(a) and subsection 15(1) could not be infringed; that he was wrong in treating the action as a challenge to the Constitution Act, 1867 and the powers conferred thereby on Parliament; that he erred in thinking that the reliefs sought by the action were beyond the powers of the Court.

I see no merit in any of the grounds advanced against the judgment under attack. My understanding of the law and of the principles applicable is, in all respect, the same as that expressed by the Trial Division judge. I have nothing substantial to add to what he wrote and see no purpose in trying to say differently what he has already said. I think he dealt with all the issues involved and considered all the arguments advanced in a proper way and I simply adopt his reasons. The brief following comments are intended only to put some emphasis on a few basic points.

1. Since the judgment of the Supreme Court in Attorney General of Canada v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735; 115 D.L.R. (3d) 1, it has become trite to say, in the words used by Estey, J. in his reasons (at page 740), that, under rule 419(1)(a), a motion may succeed only in "plain and obvious cases and where the court is satisfied that the case is beyond doubt". The principle so expressed, as I understand it, does not refer to the simplicity or straightforwardness or lack of difficulty of the legal submissions that may be set forth in support of the motion. Both Inuit Tapirisat and the other leading case on the question of the application of rule 419(1)(a), Operation Dismantle v. The Queen, [1985] 1 S.C.R. 441; 18 D.L.R. (4th) 481 required extended hearing before this Court as well as before the Supreme Court and gave rise to lengthy reasons from several judges: the legal submissions involved there were far from being simple. The principle expressed by the words used by Estey, J. refers to the effect the legal submissions set forth, if recognized as valid, will have on the fate of the action. When the success of an action is wholly dependant on a proposition of law that can easily be seen and precisely defined on the sole reading of the statement of claim, without any possibility of it being qualified by further pleadings, and there is no issue that could be better explored at a trial, a 419(1)(a) motion will permit the defendant to dispute the validity of such legal proposition and thereby show immediately that the action will necessarily fail since, even if the material facts alleged were all true, there is no way the Court may, in law, grant the reliefs sought (see the comments by Wilson, J. in Operation Dismantle, at page 477).

The trial judge was right in looking at the situation as being of that kind. 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. No addition to the statement of claim could alter the real nature of the action and this is why, be it said incidentally, that I would now deny the application for leave to amend made orally by counsel for the applicant in the course of the hearing — and then taken under advisement.

2. I have no difficulty in saying with the motions judge that neither the payment of income tax nor the defence expenditures of the Government of Canada in any way affect, curtail, diminish or infringe the appellant's conscience or religion within the meaning of paragraph 2(a) of the Charter. The income tax paid by her under the secular scheme of the Income Tax Act charging her business or employment income to tax, in no way identifies her with any of the functions of the Government of Canada be they political, social, economic, defence or for the peace order and good government of Canada.

3. The appellant invokes section 15 of the Charter; she says that the effect of the Income Tax Act is to discriminate against her by requiring that she act contrary to her conscience. I do not see the reason for bringing into play subsection 15(1). If the appellant were able to convince the Court that she was required to act contrary to her conscience, she would show a breach of her rights under paragraph 2(a) and her entitlement to remedy would be established. Her reliance on section 15 is to no avail.

4. I think the motions judge was entitled to rely on the proposition that the Charter does not override other provisions of the Constitution, a proposition reiterated by the Supreme Court in Re: Education Act, [1987] 1 S.C.R. 1148. Indeed, what is under attack in the appellant's action is not the way a legislative power, in a specific piece of legislation, was exercised, it is the exercise itself of the power. The declaration sought would mean that the power given to Parliament by section 91 of the Constitution Act, 1867 to levy taxes is lawful, in relation to certain taxpayers, only if the moneys collected are not used for certain types of defense expenditures. The challenge is formally directed against the Income Tax Act but, in reality, it extends to any legislation levying taxes. It is the power itself which is put in question.

5. I finally agree with the motions judge that the reliefs sought by the action are beyond the jurisdiction of the Court. As submitted by the Attorney General, to give effect to the appellant's argument, the Court must either amend the rate provisions of the Income Tax Act, or create a credit scheme exempting the appellant from payment of a portion of her income tax otherwise payable, to the Receiver General of Canada, under the provisions of that Act. A change in the statutory scheme of the Income Tax Act would therefore have to be devised. That is not the role of the Court.

I would affirm the judgment a quo striking out the statement of claim and dismiss the appeal with costs.

Appeal dismissed.