Blanco v. Canada, 2003 FCT 263

Date: 20030228

Docket: T-236-03

Neutral citation: 2003 FCT 263

OTTAWA, ONTARIO, THIS 28th DAY OF FEBRUARY, 2003

PRESENT:      THE HONOURABLE MADAM JUSTICE HENEGHAN

BETWEEN:

                                                                      MAX BLANCO

                                                                                                                                                          Plaintiff

                                                                                 and

                                                        HER MAJESTY THE QUEEN

                                                                                                                                                      Defendant

                                               REASONS FOR ORDER AND ORDER

BACKGROUND

•         On February 12, 2003, Mr. Max Blanco (the "Plaintiff") commenced an action against Her Majesty the Queen (the "Defendant") in which he seeks an injunction to restrain the Defendant from sending armed forces to war in the Republic of Iraq without the consent of the Parliament of Canada.

[2]                 The Plaintiff then brought a Notice of Motion seeking an interim injunction against the Defendant, pending a full trial on this Statement of Claim. The Defendant raised a preliminary objection to the jurisdiction of this Court to grant injunctive relief against the Crown and by Order dated February 17, 2003, Justice Campbell ordered that the hearing of the motion be adjourned until February 24, 2003, to allow the parties the opportunity to address the jurisdictional question raised by the Defendant.

DEFENDANT'S SUBMISSIONS

[3]                 The Defendant relies on section 22(1) of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, as amended, (the "Act") which provides as follows:

[4]                 The Defendant argues that section 22(1) of the Act operates as a complete bar to issuance of injunctive relief against the Crown. In this regard, the Defendant relies on the decisions of this Court in Pacific Salmon Industries Inc. et al. v. The Queen et al. [1985], 1 F.C. 504 (T.D.), Grand Council of the Crees (Quebec) et al. v The Queen et al., [1982] 1 F.C. 599 (C.A.); Saugeen Band of Indians v. Canada (Minister of Fisheries and Oceans), [1992] 3 F.C. 576 (T.D.) and Spiratos v. Canada, [1988] F.C.J. No. 415 (T.D.)(QL).

[5]                 Next, the Defendant submits that if the Court finds that it has jurisdiction to grant injunctive relief against the Crown, then in any event the Plaintiff's claim is not justiciable because any decision of the Government of Canada to engage in war in Iraq arises from the prerogative powers of the Crown and is not justiciable in any event. Here the Defendant relies on Black v. Canada (Prime Minister) (2001), 54 O.R. (3d) 215 (Ont. C.A.).

PLAINTIFF'S SUBMISSIONS

[6]                 The Plaintiff argues, in reply, that the Act does not apply in this case because Iraq is not a "person" within the meaning of section 22(1). Further, he relies on the Imperial Statute entitled the Act of Settlement, 1701 (U.K.), 12 and 13 Will. III, c. 2. The Plaintiff argues that this statute requires the consent of Parliament before a declaration of war can be made for the defence of any territory which does not belong to the Crown of England.

[7]                 Furthermore, the Plaintiff argues that the Imperial Statute is part of the law of Canada pursuant to the British North America Act, 30 Vict. 1867, c.3, now referred to as the Constitution Act, 1867.

[8]                 The Plaintiff says that the cases relied upon by the Defendant do not apply because they predate the decision of the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311. According to the Plaintiff, the Supreme Court of Canada here recognized the availability of injunctive relief against the Crown.

[9]                 Next, the Plaintiff argues that this Court has recognized the supremacy of Parliament over the actions in Cabinet and has acted to overturn decisions made in the absence of Parliament's authorization. In this regard, he relies on Saskatchewan Wheat Pool v. Canada (Attorney General) (1993), 17 Admin. L.R. (2d) 243 (F.C.T.D.). According to the Plaintiff that case stands for the principle that injunctive relief is available against the federal government.

ANALYSIS

[10]            The context of the Plaintiff's motion is the current international situation concerning Iraq and the international community. The Plaintiff seeks to enjoin the Government of Canada from engaging in hostilities in relation to Iraq, in the absence of the consent of Parliament. There are a number of difficulties with the arguments advanced by the Plaintiff.

[11]            First, I note that no such decision has been made and the current motion is premature.

[12]            Second, in order to obtain an injunction, the Plaintiff must show that he has a justiciable cause of action: see Tremblay v. Daigle, [1989] 2 S.C.R. 530 and Canada (Human Rights Commission) v. Canadian Liberty Net, [1998] 1 S.C.R. 626.

[13]               The thrust of the Plaintiff's Statement of Claim relates to a potential assumption of arms by Canada. Such a decision would fall under the heading of "high policy" (R. v. Secretary of State for Foreign and Commonwealth Affairs, Ex. p. Everett, [1989] 1 All E.R. 655 at p. 600). In Black, supra, Laskin J.A. made the following comments about such decisions at paragraph 52:

Thus, the basic question in this case is whether the Prime Minister's exercise of the honours prerogative affected a right or legitimate expectation enjoyed by Mr. Black and is therefore judicially reviewable. To put this question in context, I will briefly discuss prerogative powers that lie at the opposite ends of the spectrum of judicial reviewability. At one end of the spectrum lie executive decisions to sign a treaty or to declare war. These are matters of "high policy": R. v. Secretary of State for Foreign & Commonwealth Affairs, Ex p. Everett, [1989] 1 All E.R. 655 at p. 660, [1989) Q.B. 811, per Taylor L.J. Where matters of high policy are concerned, public policy and public interest considerations far outweigh the rights of individuals or their legitimate expectations. In my view, apart from Charter claims, these decisions are not judicially reviewable.

[14]            As well, I refer to the decision of the Supreme Court of Canada in Operation Dismantle Inc. v. Canada, [1985] 1 S.C.R. 441 where Justice Wilson acknowledged that a decision of the executive in the exercise of the prerogative, may be subject to review by the Court if such exercise gives rise to a breach of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), c. 11 (hereinafter the "Charter") at paragraph 63 and 64:

... Accordingly, if the Court were simply being asked to express its opinion on the wisdom of the executive's exercise of its defence powers in this case, the Court would have to decline.__It cannot substitute its opinion for that of the executive to whom the decision-making power is given by the Constitution. ... The question before us is not whether the government's defence policy is sound but whether or not it violates the appellants' rights under s. 7 of the Charter of Rights and Freedoms. This is a totally different question. _I do not think there can be any doubt that this is a question for the courts....

I would conclude, therefore, that if we are to look at the Constitution for the answer to the question whether it is appropriate for the courts to "second guess" the executive on matters of defence, we would conclude that it is not appropriate. However, if what we are being asked to do is to decide whether any particular act of the executive violates the rights of the citizens, then it is not only appropriate that we answer the question; it is our obligation under the Charter to do so.

[15]            On the basis of these authorities, it appears that a decision by the Canadian Government, in the exercise of its prerogative powers, in the absence of a Charter challenge, would not be justiciable. There is no Charter challenge raised in the present case.

[16]            Third, the Plaintiff's reliance upon the Act of Settlement in this case is misplaced. This legislation, an Act of the Parliament at Westminster, remains valid. However, it does not apply to regulate the exercise of the prerogative power by the Government of Canada in matters of high policy and the use of its armed forces.

[17]            Parliament has spoken through section 22(1) of the Act to give statutory effect to the common law recognition of Crown immunity against injunctive relief. In Saugeen Band of Indians, supra, Justice MacKay stated as follows at paragraphs 31, 32 and 34:

...This provision, [section 22(1) of the Act] enacted by S.C. 1990, c. 8, s. 28 and in force from February 1, 1992 by virtue of S/I 92-6, reflects the immunity of the Crown and its servants from injunctive orders which was traditionally recognized at common law. The statutory provision does not reduce the Crown's long recognized immunity from an injunction.

Relief of that kind is precluded by subsection 22(1) of the Crown Liability and Proceedings Act, in any court. Moreover, the Federal Court Act, R.S.C. 1985, c. F-7 as amended, under which this Court is created and acts, vests no authority to grant injunctive relief against the Crown. (See Grand Council of the Crees (of Quebec) v. R., [1982] 1 F.C. 599 (C.A.), per Pratte J.A., at page 600; leave to appeal to S.C.C. refused [1982] 1 S.C.R. viii; sub nom.: Grand Council of the Crees (of Quebec) v. Attorney General of Quebec et al.) Thus, Her Majesty the Queen in right of Canada is not a proper party defendant in the application for an interlocutory injunction.

... Before the enactment of subsection 22(2) of the Crown Liability and Proceedings Act, as amended, supra, it was well settled that as a general rule an injunction will not issue to prevent a Minister of the Crown from carrying on statutory functions. (See: Newfoundland Inshore Fisheries Association et al. v. Canada (Minister of the Environment) et al. (1990), 37 F.T.R. 230 (F.C.T.D.); Grand Council of the Crees (of Quebec) v. R, supra) An exception to this immunity has been recognized where the Minister or other Crown officer purporting to act under a statute clearly acts beyond the scope of statutory authority. (See: Lodge v. Minister of Employment and Immigration, [1979] 1 F.C. 775 (C.A.); Baxter Foods Ltd. v. Canada (Minister of Agriculture) (1988), 21 F.T.R. 15 (F.C.T.D.); Pacific Salmon Industries Inc. v. The Queen, [1985] 1 F.C. 504 (T.D.); Esquimalt Anglers' Association et al. v. Canada (Minister of Fisheries and Oceans) (1988), 21 F.T.R. 304 (F.C.T.D.).)

[18]            Contrary to the submissions of the Plaintiff, the Supreme Court of Canada in RJR-MacDonald, supra, did not decide that injunctive relief could be granted against the Crown. Rather, it reviewed the three-part test that must be met by a person seeking interlocutory relief in both private law and public law cases involving the Charter and found that the applicants had failed to establish that the balance of convenience lay in their favour, although they had established a serious issue and demonstrated the occurrence of irreparable harm.

[19]            The Plaintiff also mischaracterizes the decision of Justice Rothstein (as he then was) in Saskatchewan Wheat Pool, supra. In that case, the Court dealt with a challenge to the authority of the Governor in Council to make certain regulations. At paragraphs 68 and 69, the Court said as follows:

I come to my conclusion with some regret, not because of any policy views I may have, which would be irrelevant in any case, but because the order I must make in this case prevents the Federal Cabinet from effecting a policy initiative which it has chosen to pursue according to its view of the public interest. It is regrettable when the courts must interfere with elected officials pursuing their intended policies. However, Parliament is supreme, and the Cabinet in its role of making regulations pursuant to statutory authority is subject to the will of Parliament.

In this case, Parliament has not authorized the Cabinet to make the type of regulations that have been challenged. I must declare ss. 15 and 16.1 of the Canadian Wheat Board Regulations made by virtue of Order in Council P.C. 1993-1399 to be ultra vires and of no force and effect.

[20]            This decision is authority for the principle that regulations, which are subordinate legislation, must be authorized by their enabling statute.

[21]            That clearly is not the situation raised in the present matter by the Plaintiff. Here, the Plaintiff is attempting to prevent the making of a "high policy" decision which involves exercise of the Crown prerogative. The Plaintiff is not raising a Charter challenge. There is no basis upon which to grant the relief now sought by the Plaintiff in this motion.

[22]            The motion is dismissed with costs.

                                                  ORDER

The motion is dismissed with costs.

                                                                                           "E. Heneghan"

                                                                                                      J.F.C.C.

                          FEDERAL COURT OF CANADA

                                       TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                   T-236-03

STYLE OF CAUSE: MAX BLANCO v. HER MAJESTY THE QUEEN

PLACE OF HEARING:                                   TORONTO

DATE OF HEARING:                                     FEBRUARY 24, 2003

REASONS FOR ORDER AND

ORDER:                   HONOURABLE MADAM JUSTICE HENEGHAN

DATED:                      February 28, 2003

APPEARANCES:

Max Blanco                                                           For the Plaintiff

Coleen L. Mitchell                                                For the Defendant

SOLICITORS OF RECORD:

Max Blanco

868 Manning Avenue

Toronto, ON

M6G 2W8

For the Plaintiff

Morris Rosenberg, Q.C.

Deputy Attorney General of Canada                                            

For the Defendant