Date: 20030312
Docket: T-369-03
Neutral Citation: 2003 FCT 301
Montréal, Quebec, March 12, 2003
Present: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
DANIEL TURP
MARTINE BURELLE
GERVAIS COULOMBE
MAXIME DESLIPPES
ALAIN DUFOUR
ANDREW KLUG
ANNE-MARIE LACOSTE
RALUCA PETREA
MARIE-HÉLÈNE SYLVESTRE
DUC ANH THU TRAN
Applicants
and
JEAN CHRÉTIEN
Prime Minister of Canada
JOHN McCALLUM
Minister of National Defence
WILLIAM GRAHAM
Minister of Foreign Affairs of Canada
MARTIN CAUCHON
Attorney General of Canada
Respondents
REASONS FOR ORDER AND ORDER
[1] The applicants filed an application for judicial review under section 18 of the Federal Court Act and a motion for interim relief for the purpose of prohibiting the respondents from participating in any military intervention in Iraq.
[2] The respondents filed a motion record disputing the applicants' representations and they also filed a written motion to dismiss the judicial review application.
[3] On March 10, after hearing from the parties through their counsel, I decided to hear first the motion to dismiss, as it attacks both the application for judicial review and the motion for interim relief filed by the applicants. I therefore decided that it was in the interests of justice that judgment be rendered first on this motion and I informed the parties that, if the applicants were successful at this initial stage, the Court would set another date on which to hear the parties concerning the relief requested.
ISSUE
[4] Should the respondents' motion be allowed?
[5] For the following reasons, the motion shall be allowed.
PARTIES' SUBMISSIONS
[6] The respondents argue that the proceedings are premature and that the issues raised by the applicants are not justiciable. They also argue that the procedural vehicle used by the applicants is inappropriate.
[7] The applicants argue, instead, that the proceedings are not premature since Canadian troops have been sent to the Persian Gulf. This demonstrates Canada's intention to support the war measures that the United States and other countries are preparing to take.
[8] The applicants add that the decision to involve Canada in an intervention in Iraq that is not authorized by the Security Council of the United Nations would be in violation of international law and Canadian constitutional law. A decision of this kind, they say, is solely within the jurisdiction of Parliament, and not the Cabinet.
[9] They further argue that the power to declare war originates in the royal prerogative, and without the approval of Parliament a declaration of war would be contrary to our democracy. It is therefore necessary to supervise the royal prerogative not only under theCanadian Charter of Rights and Freedoms but also under the United Nations Charter and international law.
[10] The applicants argue, lastly, that the requested emergency relief must be granted at the earliest possible opportunity because the situation in Iraq is evolving day by day and the probability of aggression by the Canadian army is increasingly imminent.
[11] In conclusion, the applicants state that if the interim relief is not ordered as soon as practicable, the respondents are likely to commit violations of both domestic and international law that cannot be remedied through a subsequent judgment on the merits.
ANALYSIS
[12] In Blanco v. Her Majesty the Queen, 2003 FCT 263, the Court dismissed a motion for interim relief to prevent the Crown from sending Canadian Armed Forces to Irak without the consent of Parliament. The Court noted that the Government of Canada has not yet made any decision in regard to its participation in an intervention in Iraq. The motion before the Court was therefore premature.
[13] Furthermore, according to this judgment, the case was not justiciable because the impugned decision was one of "high policy" under the English decision R. v. Secretary of State for Foreign and Commonwealth Affairs, Ex. p. Everett, [1989] 1 All E.R. 655 (C.A.). This decision had been followed in Black v. Canada (Prime Minister) (2001), 54 O.R. (3d) 215 (Ont. C.A.) (QL). In that decision, the Ontario Court of Appeal ruled that unless there is a breach of the Canadian Charter of Rights and Freedoms (the Charter), questions of "high policy" are not reviewable by the courts.
[14] Accordingly, in Blanco, supra, Madam Justice Heneghan concluded that a decision of the Canadian government, made within the framework of its prerogatives, cannot be attacked failing a breach of the Charter. There was no such breach in Blanco and, in my opinion, there is not one in this case either.
[15] The applicants attempted to distinguish the Blanco case from the present one by alleging a different factual context. Since Blanco, they argued, statements by the respondents in the print and broadcast media or through a close adviser of one of the respondents clearly show the intention of the respondents to participate in an armed intervention without the authorization of the Security Council of the United Nations. Counsel for the respondents, to refute this statement, filed an extract from the newspaper La Presse of March 10, 2003, in which it is stated that "[translation] Mr. Chrétien used the occasion to repeat that Canada will not participate in any military offensive in Irak unless it is authorized by the Security Council."
PREMATURE NATURE OF THE PROCEEDING
[16] In paragraph 13.(a) of their application for judicial review, the applicants state:
[translation]
13. The Government of Canada does not have a clear position on Canada's participation in a military intervention in Iraq:
(a) The position taken in the House of Commons by the Canadian government in this matter is not clear. It is impossible to discover Canada's official position on the question of military participation in an intervention against Iraq from the contradictory statements by the Prime Minister, the Minister of Foreign Affairs and the Minister of National Defence;
[17] The respondents argue that a decision has not been taken so far and all present indications are that there will be no Canadian military offensive without the authorization of the Security Council.
[18] However, I note that no official Canadian decision has been taken to date. The proceedings are therefore premature.
JUSTICIABLE ISSUES
[19] I am also of the opinion that the applicants' proceedings have no reasonable chance of success. A decision to deploy the Canadian Armed Forces is one of "high policy". The applicants would like to change this term to "high accountability". I have found no justification in the cases to support this argument.
[20] In Black v. Chrétien et al., supra, the Court ruled on the issue of legal intervention in matters of "high policy" at page 232, paragraph 52:
[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". 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. ... [Citations omitted.] [Emphasis added.]
[21] In accordance with that decision, I conclude therefore that there are no justiciable issues that are raised in the applicants' proceedings.
INAPPROPRIATENESS OF THE PROCEDURAL VEHICLE
[22] Since I have concluded that the applicants' proceedings are premature, and that they do not raise any justiciable issues, I will not discuss the procedure used by the applicants.
ORDER
The applications for judicial review and interim relief by the applicants are dismissed with costs to the respondents.
"Michel Beaudry"
Judge
Certified true translation
Suzanne M. Gauthier, C.Tr., LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20030312
Docket: T-369-03
Between:
DANIEL TURP
MARTINE BURELLE
GERVAIS COULOMBE
MAXIME DESLIPPES
ALAIN DUFOUR
ANDREW KLUG
ANNE-MARIE LACOSTE
RALUCA PETREA
MARIE-HÉLÈNE SYLVESTRE
DUC ANH THU TRAN
Applicants
and
JEAN CHRÉTIEN
Prime Minister of Canada
JOHN McCALLUM
Minister of National Defence
WILLIAM GRAHAM
Minister of Foreign Affairs of Canada
MARTIN CAUCHON
Attorney General of Canada
Respondents
REASONS FOR ORDER AND ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
SOLICITORS OF RECORD
DOCKET NO: T-369-03
STYLE:
DANIEL TURP
MARTINE BURELLE
GERVAIS COULOMBE
MAXIME DESLIPPES
ALAIN DUFOUR
ANDREW KLUG
ANNE-MARIE LACOSTE
RALUCA PETREA
MARIE-HÉLÈNE SYLVESTRE
DUC ANH THU TRAN
Applicants
and
JEAN CHRÉTIEN
Prime Minister of Canada
JOHN McCALLUM
Minister of National Defence
WILLIAM GRAHAM
Minister of Foreign Affairs of Canada
MARTIN CAUCHON
Attorney General of Canada
Respondents
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: March 10, 2003
REASONS FOR ORDER
AND ORDER OF: THE HONOURABLE MR. JUSTICE BEAUDRY
DATED: March 12, 2003
APPEARANCES:
Daniel Turp FOR THE APPLICANTS
Marie-Hélène Proulx
Alexandre Cloutier
François Roch
Claude Joyal FOR THE RESPONDENTS
René Leblanc
Bernard Letarte
SOLICITORS OF RECORD:
Daniel Turp FOR THE APPLICANTS
Montréal, Quebec
Marie-Helène Proulx
Montréal, Quebec
Alexandre Cloutier
Hull, Quebec
François Roch
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENTS
Deputy Attorney General of Canada
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