Date: 20060505
Docket: T-571-06
Citation: 2006 FC 570
Ottawa, Ontario, May 05, 2006
PRESENT: The Honourable Mr. Justice
Harrington
PROPOSED CLASS
ACTION
BETWEEN:
ROBERT GILLES
GAUTHIER
Plaintiff
and
The Honourable
PETER ANDREW MILLIKEN, SPEAKER OF THE HOUSE OF COMMONS, ROBERT RUMSLEY WALSH,
LAW CLERK AND PARLIAMENTARY LEGAL COUNSEL, HOUSE OF COMMONS, Her Excellency
MICHAELLE JEAN,
GOVERNOR GENERAL
OF CANADA, The Honourable IRWIN COTLER,
former MINISTER OF
JUSTICE AND ATTORNEY GENERAL OF CANADA, The Honourable VIC TOEWS, MINISTER OF
JUSTICE AND ATTORNEY GENERAL OF CANADA, JEAN-PIERRE KINGSLEY, CHIEF ELECTORAL
OFFICER, CANADIAN RADIO-TELEVISION AND TELECOMMUNICATIONS COMMISSION, CTV
TELEVISION NETWORK, GROUPE TVA INC., CANADIAN BROADCASTING CORPORATION – CBC,
TONY BURMAN, EDITOR IN CHIEF AND EXECUTIVE DIRECTOR, CBC NEWS, CURRENT AFFAIRS
AND NEWSWORLD, JASON MACDONALD, SPOKESPERSON THE BROADCAST CONSORTIUM, THE
BROADCAST CONSORTIUM, CANWEST GLOBAL COMMUNICATIONS CORPORATION, THE CANADIAN
PARLIAMENTARY PRESS GALLERY INC, THE CANADIAN BAR ASSOCIATION, CPAC, The Right
Honourable PAUL MARTIN, former PRIME MINISTER OF CANADA AND former LEADER OF
THE LIBERAL PARTY OF CANADA, THE LIBERAL PARTY OF CANADA, The Right Honourable
STEPHEN HARPER, PRIME MINISTER OF CANADA AND LEADER OF THE CONSERVATIVE PARTY
OF CANADA, THE CONSERVATIVE PARTY OF CANADA, The Honourable JACK LAYTON, LEADER
OF THE NEW DEMOCRATIC PARTY OF CANADA, THE NEW DEMOCRATIC PARTY OF CANADA, The
Honourable GILLES DUCEPPE, LEADER OF THE BLOC QUEBECOIS PARTY OF CANADA, and THE
BLOC QUEBECOIS PARTY OF CANADA
Defendants
REASONS FOR ORDERS
[1]
Robert
Gilles Gauthier is a man of many parts: engineer, one-time newspaper publisher,
one-time political candidate, concerned citizen and registered voter. He takes
issue with the campaign leading up to the Federal General Election held on 23
January 2006, more particularly the televised debates involving the leaders of the
four political parties with representation in the House of Commons at the time
of its dissolution. In his view, the leaders of the 16 registered parties
should all have been given the opportunity to debate. He asserts that limiting the
debate to the leaders of the four incumbent parties infringed upon the
fundamental rights of every Canadian voter to be provided with all available
information. The media acted in breach of the Canadian Constitution, the Charter
and other canadian laws in concert with various government officials, and
politicians who should have enforced the law, but failed to do so. Although he
thus considers the election illegal, he is content to call upon the Court to
rule on his complaint so that in the future the media and all concerned will
fully respect freedom of expression, the political process in Canada and give proper
heed to the Elections Act and the Broadcasting Act.
[2]
As
the lengthy style of cause shows, he has taken action against various public
officials including the Governor General of Canada, the current
and former Prime Minister, the Speaker of the House of Commons, as well as the
Chief Electoral Officer and various television networks and individuals
associated therewith.
[3]
Mr.
Gauthier has not only filed a statement of claim on his own behalf, but
proposes that it be certified as a class action on behalf of all registered voters
in Canada, some 20
million all told.
[4]
Three
sets of defendants promptly moved to have the action dismissed as against them
on the grounds that the Federal Court does not have jurisdiction over them, or
if it does because the statement of claim does not disclose a cause of action
as against them. Rule 221 of the Federal Courts Rules allows the Court to
strike a pleading if it discloses no reasonable cause of action, and to order
that the action be dismissed accordingly.
[5]
Before
turning to the three motions, it is necessary to briefly discuss the
jurisdiction of the Federal Court and the different constitutional roles of the
Sovereign, the Houses of Parliament, the Executive and the Courts. Although
this brief discussion is not nuanced, it may help Mr. Gauthier, who is
self-represented and who is not a lawyer, understand why all three motions are
being granted.
THE JURISDICTION OF THE
FEDERAL COURT
[6]
The
establishment and organisation of Courts in Canada is
essentially a provincial matter under Section 92(14) of the Constitution Act,
1867. By way of exception, the Federal Parliament may, in virtue of Section 101
of the Act, create a general court of appeal for Canada, which it has,
the Supreme Court of Canada. It may also establish additional courts for the
better administration of the laws of Canada. There are four such
courts, the Federal Court, the Federal Court of Appeal, the Tax Court of Canada
and the Court Martial Appeal Court.
[7]
Unlike
the superior courts of record of the provinces, the Federal Court of Canada is
purely a creature of statute, created by the Federal Courts Act.
[8]
Generally
speaking, the jurisdiction of the Federal Court is limited to certain subject
matters. Beginning with the decision of the Supreme Court in Canadian
Pacific Ltd. v. Quebec North Shore Paper Co., [1977] 2 S.C.R. 1054, it has
been held that the Federal Court only has jurisdiction: 1) if the matter
pertains to a federal legislative class of subject, as opposed to a provincial
legislative class of subject, 2) if there is actual existing applicable Federal
Law and 3) the administration of that Law has been confided to it. Perhaps the
most elucidating case is ITO-International Terminal Operators Ltd. v. Miida
Electronics Inc., [1986] 1 S.C.R. 752.
[9]
The
Federal Court’s jurisdiction over the “Crown” differs somewhat. Historically,
and again broadly speaking, the Crown could do no wrong, and thus could not be
sued. In time the Crown consented to be sued, but only in certain specified
Courts. Thus the Exchequer Court of Canada and the Federal Court, as its
successor, had exclusive jurisdiction. However, Parliament now provides in
Section 17 of the Federal Courts Act that the Federal Court’s
jurisdiction in cases in which relief is claimed against the Crown is
concurrent with the provincial courts. Moreover, one or the other of the
Federal Court and the Federal Court of Appeal has judicial review jurisdiction
over federal boards and tribunals, in accordance with Sections 18, 18.1 and 28
of the Federal Courts Act.
THE CLAIM AGAINST THE
SPEAKER
[10]
The
Honourable Peter Andrew Milliken, Speaker of this and the last House of
Commons, and Robert Rumsley Walsh, Parliamentary Legal Counsel, House of
Commons, have moved to have the action struck as against them because neither
they personally, nor the House of Commons, as such, can be sued. They further
submit that in any event neither had any role to play in organizing or
supervising the televised debates. They are right on both counts.
[11]
Section
17 of the Federal Courts Act gives the Court jurisdiction in cases in
which relief is claimed against the “Crown”. The “Crown” is not defined,
perhaps because its meaning has been so well established that it is beyond
doubt. In the third edition of their treatise, Liability of the Crown,
Professors Hogg and Monahan note at Section 1.4(a) that the expression the “Crown”
is in fact shorthand for the executive branch of government, not the
legislative branch. Executive functions are exercised by the Prime Minister and
the other Ministers. It is not accurate to describe Parliament or a provincial
legislature as the “Crown”. See Wardle v. Manitoba Farm Loans
Association, [1956] S.C.R. 3.
[12]
Even
if the statement of claim, which is not particularly crisp, could actually be
construed as an application for judicial review covered by Sections 18 and 18.1
of the Federal Courts Act, Section 2(2) of that Act provides for greater
certainty that the Senate, House of Commons and no committee or member of
either house is a “…federal Board, commission or other tribunal”. Thus, the
Federal Court has no jurisdiction over these defendants who have to be
considered as being sued in a representative capacity. Certainly, nothing
personal is alleged against them.
[13]
This
is in accord with sound constitutional principle. Section 17 of the Constitution
Act, 1867 provides for one Parliament of Canada consisting of the Queen,
the Senate and the House of Commons. As noted in Canada (House of
Commons) v. Vaid, [2005] 1 S.C.R. 67, there must be an equilibrium amongst
the Legislature, the Executive and the Courts with each vouchsafed appropriate autonomy
from the others. This present matter is not a case like Vaid, which went
beyond parliamentary privilege and dealt with labour relations between the House
and a non-legislative employee.
[14]
Furthermore,
neither of these defendants, nor the House of Commons in general, is implicated
in general elections. The Governor General, by proclamation in virtue of Royal
Prerogative, and in accordance with Section 50 of the Constitution Act, 1867,
dissolved the 38th Parliament on 29 November 2005, following which
writs for the 39th General Election were issued. Thereafter, the
House of Commons simply did not exist and would not meet again until summoned
by the Governor General to meet 3 April 2006.
[15]
The
elections were carried out in accordance with the provisions of the Canada
Elections Act for which the Chief Electoral Officer is responsible with no
participation from the House of Commons in general, or the Speaker thereof in
particular.
MOTION BY THE CHIEF ELECTORAL
OFFICER
[16]
Jean-Pierre
Kingsley is and was the Chief Electoral Officer. It is not necessary to
consider the circumstances in which the Federal Court may or may not have
jurisdiction over him. There may be circumstances in which a decision he made,
or failed to make, could be subject to judicial review.
[17]
The
statement of claim must be read against the law. So read, it discloses no cause
of action against him. Sections 332 and following of the Canada Elections
Act deal with broadcasts, more particularly the distinction between
political broadcasts and public affairs programming. There is a broadcasting
arbitrator who deals with the allocation of paid and free airtime amongst
political parties. Those broadcasts are controlled by the parties themselves,
and are not the subject of Mr. Gauthier’s complaint. I am persuaded by the
reasons of Mr. Justice Borins in R. v. Canadian Broadcasting Corp. (CBC),
[1992] O.J. No. 957 (QL), 72 C.C.C. (3d) 545, who pointed out that the Canada
Elections Act made no reference to leadership debates. It still does not. He
drew the distinction between the requirement of the Act to provide paid and
free time to political parties and public affairs programs which include he
said, and I agree, leadership debates. He concluded:
As I have mentioned, there is no
express reference in the Canada Elections Act, in the Broadcasting Act or in
the Television Broadcasting Regulations to leadership debates. Only
the provision by broadcasters and network operators of paid and free time to
the political parties, and its allocation, are governed by legislation. Neither
statute provides a legal framework covering debates. Neither statute delegates
to the C.R.T.C. the authority to require that broadcasters and network
operators organize and present debates and to require that they invite the
leader of each political party to participate in a debate. Had
Parliament intended to include leadership debates within the scope of political
broadcasts governed by the Canada Elections Act one would expect to find an
express provision requiring broadcasters and network operators to produce
debates, as well as rules for selecting participants in a debate and, perhaps,
guidelines in respect to the format of the debate.
[18]
That
decision was handed when a CRTC Guideline called for the leaders of all
political parties to be given an opportunity to debate. That Guideline has
since been rescinded.
THE CLAIM AGAINST THE
BROADCASTERS
[19]
Having
been apprised of the Federal Court’s jurisdiction as aforesaid and being unable
to point to any Statute which gave the Federal Court jurisdiction over them, Mr.
Gauthier acquiesced in the dismissal of his action as against the Canadian
Parliamentary Press Gallery, CTV
Television Inc. (a.k.a. CTV Television Network), Canadian Broadcasting Corporation,
Tony Burman, Jason MacDonald, Canwest Global Communications Corporation and
CPAC.
The CBC is not a government agent for these purposes. (National Party of Canada v. Canadian
Broadcasting Corp. (CBC), [1993] A.J. No. 677, Natural Law Party of
Canada v. Canadian Broadcasting Corp. (CBC), [1994] 1 F.C. 580). An order
granting their motion, but without costs, was signed the day of the hearing.
CONCLUSION AND COSTS
[20]
All
three motions are granted. The names of the defendants who have successfully
moved to have the statement of claim struck and the action as against them
dismissed shall be deleted from the style of cause. The Speaker and the Chief
Electoral Officer shall each have costs fixed in the amount of $750. The
“Broadcasters” have been awarded no costs.
“Sean Harrington”
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-571-06
STYLE OF CAUSE: Proposed
Class Action
ROBERT GILLES GAUTHIER v.
The Honourable PETER ANDREW
MILLIKEN, SPEAKER OF THE HOUSE OF COMMONS, ROBERT RUMSLEY WALSH, LAW CLERK AND
PARLIAMENTARY LEGAL COUNSEL, HOUSE OF COMMONS, Her Excellency MICHAELLE JEAN,
GOVERNOR GENERAL OF CANADA, The Honourable IRWIN COTLER, former MINISTER OF
JUSTICE AND ATTORNEY GENERAL OF CANADA, The Honourable VIC TOEWS, MINISTER OF
JUSTICE AND ATTORNEY GENERAL OF CANADA, JEAN-PIERRE KINGSLEY, CHIEF ELECTORAL
OFFICER, CANADIAN RADIO-TELEVISION AND TELECOMMUNICATIONS COMMISSION, CTV
TELEVISION NETWORK, GROUPE TVA INC., CANADIAN BROADCASTING CORPORATION – CBC,
TONY BURMAN, EDITOR IN CHIEF AND EXECUTIVE DIRECTOR, CBC NEWS, CURRENT AFFAIRS
AND NEWSWORLD, JASON MACDONALD, SPOKESPERSON THE BROADCAST CONSORTIUM, THE
BROADCAST CONSORTIUM, CANWEST GLOBAL COMMUNICATIONS CORPORATION, THE CANADIAN
PARLIAMENTARY PRESS GALLERY INC, THE CANADIAN BAR ASSOCIATION, CPAC, The Right
Honourable PAUL MARTIN, former PRIME MINISTER OF CANADA AND former LEADER OF
THE LIBERAL PARTY OF CANADA, THE LIBERAL PARTY OF CANADA, The Right Honourable
STEPHEN HARPER, PRIME MINISTER OF CANADA AND LEADER OF THE CONSERVATIVE PARTY
OF CANADA, THE CONSERVAVITE PARTY OF CANADA, The Honourable JACK LAYTON, LEADER
OF THE NEW DEMOCRATIC PARTY OF CANADA, THE NEW DEMOCRATIC PARTY OF CANADA, The
Honourable GILLES DUCEPPE, LEADER OF THE BLOC QUEBECOIS PARTY OF CANADA, and
THE BLOC QUEBECOIS PARTY OF CANADA
PLACE OF
HEARING: Ottawa, Ontario
DATE OF
HEARING: May 2, 2006
REASONS FOR ORDER: HARRINGTON
J.
DATED: May
5, 2006
APPEARANCES:
|
Robert Gilles
Gauthier
|
FOR THE PLAINTIFF ON HIS OWN BEHALF
|
|
Mr. Steven
Chaplin
|
FOR THE DEFENDANTS THE HONOURABLE PETER ANDREW MILLIKEN,
SPEAKER OF THE HOUSE OF COMMONS and ROBERT RUMSLEY WALSH
|
|
Mr. Gordon
Cameron
|
FOR THE
DEFENDANTS CANADIAN PARLIAMENTARY PRESS GALLERY, CTV TELEVISION INC. (A.K.A.
CTV TELEVISION NETWORK), CANADIAN BROADCASTING CORPORATION, TONY BURNMAN,
JASON MACDONAL, GLOBAL COMMUNICATIONS CORPORATION AND CPAC
|
|
|
|
|
Mr. Ronald D.
Lunau
Ms. Catherine
Beaudoin
|
FOR THE
DEFENDANT JEAN-PIERRE KINGSLEY, CHIEF ELECTORAL OFFICER
|
SOLICITORS
OF RECORD:
|
Robert Gilles
Gauthier
|
FOR THE PLAINTIFF
ON HIS OWN BEHALF
|
|
Mr. Steven
Chaplin
Office of the
Law Clerk and Parliamentary Counsel
|
FOR THE DEFENDANTS
THE HONOURABLE PETER ANDREW MILLIKEN, SPEAKER OF THE HOUSE OF COMMONS and
ROBERT RUMSLEY WALSH
|
|
|
|
|
Blake, Cassels
& Graydon LLP
Barristers
& Solicitors
Ottawa, Ontario
|
FOR THE
DEFENDANTS CANADIAN PARLIAMENTARY PRESS GALLERY, CTV TELEVISION INC. (A.K.A.
CTV TELEVISION NETWORK), CANADIAN BROADCASTING CORPORATION, TONY BURNMAN,
JASON MACDONAL, GLOBAL COMMUNICATIONS CORPORATION AND CPAC
|
|
|
|
|
Gowling
Lafleur Henderson LLP
Barristers
& Solicitors
Ottawa, Ontario
|
FOR THE
DEFENDANT JEAN-PIERRE KINGSLEY, CHIEF ELECTORAL OFFICER
|
|
|
|
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