Held: The appeal should be dismissed.
Per Dickson, Estey, McIntyre, Chouinard and Lamer JJ.: The appellants' statement of claim should be struck out and their cause of action dismissed. The statement of claim does not disclose facts which, if taken as true, would prove that the Canadian government's decision to permit the testing of the cruise missile in Canada could cause a violation or a threat of violation of their rights under s. 7 of the Charter .
The principal allegation of the statement of claim is that the testing of the cruise missile in Canada poses a threat to the lives and security of Canadians by increasing the risk of nuclear conflict and thereby violates the right to life, liberty and security of the person. This alleged violation of s. 7 turns upon an actual increase in the risk of nuclear war resulting from the federal cabinet's decision to permit the testing. This allegation is premised upon assumptions and hypotheses about how independent and sovereign nations, operating in an international arena of uncertainty and change, will react to the Canadian government's decision to permit the testing of the cruise. Since the foreign policy decisions of independent nations are not capable of prediction on the basis of evidence to any degree of certainty approaching probability, the nature of the reaction to the federal cabinet's decision to permit the testing can only be a matter of speculation. The appellants could never prove the causal link between the decision to permit the testing and the increase in the threat of nuclear conflict.
Cabinet decisions are reviewable by the courts under s. 32(1)( a ) of the Charter and the executive branch of the Canadian government bears a general duty to act in accordance with the dictates of the Charter . The decision to permit the testing of the cruise missile cannot be considered contrary to the duties of the executive since the possible effects of this government action are matters of mere speculation. Section 7 could only give rise to a duty on the part of the executive to refrain from permitting the testing if it could be said that a deprivation of life or security of the person could be proven to result from the impugned government act.
Per Wilson J.: The government's decision to allow the testing of the U.S. cruise missile in Canada, even although an exercise of the royal prerogative, was reviewable by the courts under s. 32(1)( a ) of the Charter . It was not insulated from review because it was a "political question" since the Court had a constitutional obligation under s. 24 of the Charter to decide whether any particular act of the executive violated or threatened to violate any right of the citizen.
On a motion to strike out a statement of claim as disclosing no reasonable cause of action, the court must take the allegations of fact therein as proved. If such allegations raise a justiciable issue the court cannot abdicate its responsibility for review on the basis of anticipated problems of proof.
This statement of claim was struck, notwithstanding the general hesitancy of the courts to strike, because the facts disclosed no reasonable cause of action (1) under s. 24(1) of the Charter , (2) under s. 52(1) of the Constitution Act, 1982 or (3) under the common law power to grant declaratory relief. To succeed in their claim for relief under s. 24 of the Charter the plaintiffs would have to establish a violation or threat of violation of their right under s. 7 of the Charter . To obtain a declaration of unconstitutionality under s. 52(1) of the Constitution Act, 1982 , the plaintiffs would have to show that the government's decision to test the cruise missile in Canada was inconsistent with their right under s. 7. To obtain declaratory relief at common law, they would have to establish a violation or threatened violation of their right under s. 7.
The government's decision to test the cruise missile in Canada does not give rise to a violation or threatened violation of the plaintiffs' right under s. 7. Even an independent, substantive right to life, liberty and security of the person cannot be absolute. It must take account of the corresponding rights of others and of the right of the state to protect the collectivity as well as the individual against external threats. The central concern of the section is direct impingement by government upon the life, liberty and personal security of individual citizens. It does not extend to incidental effects of governmental action in the field of inter‑state relations.
There is at the very least a strong presumption that governmental action concerning the relation of the state with other states, and not directed at any member of the immediate political community, was never intended to be caught by s. 7 even although such action may incidentally increase the risk of death or injury that individuals generally have to face.
Section 1 of the Charter was not called into operation here given the finding that the facts as alleged could not constitute a violation of s. 7.
Since the application to amend the statement of claim was filed after the Crown instituted its appeal, the application was made "during the pendency of an appeal" to which the Rules of the Federal Court of Appeal applied. Appellants' right under Rule 421 had therefore expired and their only recourse was to proceed under Rule 1104.
Cases Cited
Chandler v. Director of Public Prosecutions, [1962] 3 All E.R. 142, affirming [1962] 2 All E.R. 314; Baker v. Carr, 369 U.S. 186 (1962); McKay v. Essex Area Health Authority, [1982] 2 All E.R. 771, considered; Atlee v. Laird, 347 F.Supp. 689 (1972); Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803); United States v. Nixon, 418 U.S. 683 (1974); Brown v. Board of Education of Topeka, 347 U.S. 483 (1954); Rylands v. Fletcher, [1861‑73] All E.R. 1; Attorney General of Canada v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735; Shawn v. Robertson (1964), 46 D.L.R. (2d) 363; McGhee v. National Coal Board, [1972] 3 All E.R. 1008; Fleming v. Hislop (1886), 11 A.C. 686; Alphacell Ltd. v. Woodward, [1972] 2 All E.R. 475; Leyland Shipping Co. v. Norwich Union Fire Insurance Society, [1918] A.C. 350; Minister of Justice of Canada v. Borowski, [1981] 2 S.C.R. 575; Thorson v. Attorney General of Canada, [1975] 1 S.C.R. 138; Nova Scotia Board of Censors v. McNeil, [1976] 2 S.C.R. 265; Solosky v. The Queen, [1980] 1 S.C.R. 821; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Attorney‑General for Canada v. Attorney‑General for Ontario, [1937] A.C. 326; Dyson v. Attorney‑General, [1911] 1 K.B. 410; Drummond‑Jackson v. British Medical Association, [1970] 1 All E.R. 1094; Dowson v. Government of Canada (1981), 37 N.R. 127; Miller v. The Queen, [1977] 2 S.C.R. 680; Re Federal Republic of Germany and Rauca (1983), 41 O.R. (2d) 225; Famous Players Canadian Corp. v. J.J. Turner and Sons Ltd., [1948] O.W.N. 221; Redland Bricks Ltd. v. Morris, [1970] A.C. 652, referred to.
Statutes and Regulations Cited
Canadian Bill of Rights, R.S.C. 1970, App. III, s. 1(a).
Canadian Charter of Rights and Freedoms , ss. 1 , 7 , 24(1) , 32(1)( a ) ,(b).
Colonial Laws Validity Act, 1865, 28 & 29 Vict., c. 63, s. 2.
Constitution Act, 1867 , ss. 9 , 10 , 11 , 12 , 13 , 14 , 15 , 91 , 92 .
Constitution Act, 1982 , s. 52 .
Federal Court Rules, ss. 408, 419(1)(a), 421, 469, 1104, 1723.
Statute of Westminster, 1931, 22 Geo. 5, c. 4 (R.S.C. 1970, App. II, No. 26), s. 7.
Authors Cited
Adler, Mortimer J. Six Great Ideas, New York, Macmillan Publishing Co., 1981.
Bickel, Alexander M. The Least Dangerous Branch, Indianapolis, Bobbs‑Merrill Co., 1962.
Borchard, Edwin. Declaratory Judgments, 2nd ed., Cleveland, Banks‑Baldwin Law Publishing Co., 1941.
de Smith, S.A. Constitutional and Administrative Law, 4th ed., Harmondsworth, England, Penguin Books Ltd., 1981.
Dworkin, Ronald Myles. Taking Rights Seriously, London, Duckworth, 1977.
Eager, Samuel W. The Declaratory Judgment Action, Buffalo, N.Y., Dennis & Co., 1971.
Finkelstein, Maurice. "Judicial Self‑Limitation," 37 Harv. L. Rev. 338 (1924), 338‑364.
Gotlieb, A.E. "Canadian Treaty‑Making: Informal Agreements and Interdepartmental Arrangements," in Canadian Perspectives on International Law and Organization, eds. R. St. J. Macdonald, Gerald L. Morris and Douglas M. Johnston, Toronto, University of Toronto Press, 1974.
Henkin, Louis. "Is There a ‘Political Question’ Doctrine?" 85 Yale L.R. 597 (1976), 597‑625.
La Forest, Gerard J. "The Canadian Charter of Rights and Freedoms : An Overview" (1983), 61 Can. Bar Rev. 19, 19‑29.
Macdonald, R. St. J. "The Relationship between International Law and Domestic Law in Canada," in Canadian Perspectives on International Law and Organization, eds. R. St. J. Macdonald, Gerald L. Morris and Douglas M. Johnston, Toronto, University of Toronto Press, 1974.
Marshall, G. "Justiciability," in Oxford Essays in Jurisprudence, ed. A.G. Guest, London, Oxford University Press, 1961.
Pound, Roscoe. Jurisprudence, vol. 4, St. Paul, Minn., West Publishing Co., 1959.
Rawls, John. A Theory of Justice, Cambridge, Mass., Belknap Press of Harvard University Press, 1971.
Redish, Martin H. "Abstention, Separation of Powers, and the Limits of the Judicial Function," 94 Yale L.J. 71 (1984), 71‑115.
Sarna, Lazar. The Law of Declaratory Judgments, Toronto, Carswell Co., 1978.
Scharpf, Fritz W. "Judicial Review and the Political Question: A Functional Analysis," 75 Yale L.J. 517 (1966), 517‑597.
Sharpe, Robert J. Injunctions and Specific Performance, Toronto, Canada Law Book Ltd., 1983.
Stevens, Robert. "Justiciability: The Restrictive Practices Court Re‑Examined," [1964] Public Law 221, 221‑255.
Summers, Robert S. "Justiciability" (1963), 26 M.L.R. 530, 530‑538.
Tigar, Michael E. "Judicial Power, the ‘Political Question Doctrine’, and Foreign Relations," 17 U.C.L.A. L.R. 1135 (1970), 1135‑1179.
Wechsler, Herbert. Book Review, 75 Yale L.J. 672 (1966).
Wechsler, Herbert. Principles, Politics, and Fundamental Law, Cambridge, Mass., Harvard University Press, 1961.
Weston, Melville. "Political Questions," 38 Harv. L. Rev. 296 (1925), 296‑333.
Zamir, J. The Declaratory Judgment, London, Stevens & Sons Ltd., 1962.
APPEAL from a judgment of the Federal Court of Appeal, [1983] l F.C. 745, 49 N.R. 363, allowing an appeal from a judgment of Cattanach J., [1983] l F.C. 429, dismissing a motion to strike out. Appeal dismissed.
Gordon F. Henderson, Q.C., Lawrence Greenspon and Emilio Binavince, for the appellants.
W. I. C. Binnie, Q.C., and Graham R. Garton, for the respondents.
The judgment of Dickson, Estey, McIntyre, Chouinard and Lamer JJ. was delivered by
1. Dickson J.‑‑This case arises out of the appellants' challenge under s. 7 of the Canadian Charter of Rights and Freedoms to the decision of the federal cabinet to permit the testing of the cruise missile by the United States of America in Canadian territory. The issue that must be addressed is whether the appellants' statement of claim should be struck out, before trial, as disclosing no reasonable cause of action. In their statement of claim, the appellants seek: (i) a declaration that the decision to permit the testing of the cruise missile is unconstitutional; (ii) injunctive relief to prohibit the testing; and (iii) damages. Cattanach J. of the Federal Court, Trial Division, refused the respondents' motion to strike. The Federal Court of Appeal unanimously allowed the respondents' appeal, struck out the statement of claim and dismissed the appellants' action.
2. The facts and procedural history of this case are fully set out and discussed in the reasons for judgment of Madame Justice Wilson. I agree with Madame Justice Wilson that the appellants' statement of claim should be struck out and this appeal dismissed. I have reached this conclusion, however, on the basis of reasons which differ somewhat from those of Madame Justice Wilson.
3. In my opinion, if the appellants are to be entitled to proceed to trial, their statement of claim must disclose facts, which, if taken as true, would show that the action of the Canadian government could cause an infringement of their rights under s. 7 of the Charter . I have concluded that the causal link between the actions of the Canadian government, and the alleged violation of appellants' rights under the Charter is simply too uncertain, speculative and hypothetical to sustain a cause of action. Thus, although decisions of the federal cabinet are reviewable by the courts under the Charter , and the government bears a general duty to act in accordance with the Charter 's dictates, no duty is imposed on the Canadian government by s. 7 of the Charter to refrain from permitting the testing of the cruise missile.
I
The Appellants' Statement of Claim
4. The relevant portion of the appellants' statement of claim is found in paragraph 7 thereof. The deprivation of s. 7 Charter rights alleged by the appellants and the facts they advance to support this deprivation are described as follows:
7. The plaintiffs state and the fact is that the testing of the cruise missile in Canada is a violation of the collective rights of the Plaintiffs and their members and all Canadians, specifically their right to security of the person and life in that:
(a) the size and eventual dispersion of the air‑launched cruise missile is such that the missile cannot be detected by surveillance satellites, thus making verification of the extent of this nuclear weapons system impossible;
(b) with the impossibility of verification, the future of nuclear weapons' control and limitation agreements is completely undermined as any such agreements become practically unenforceable;
(c) the testing of the air‑launched cruise missiles would result in an increased American military presence and interest in Canada which would result in making Canada more likely to be the target of a nuclear attack;
(d) as the cruise missile cannot be detected until approximately eight minutes before it reaches its target, a "Launch on Warning" system would be necessary in order to respond to the cruise missile thereby eliminating effective human discretion and increasing the likelihood of either a pre‑emptive strike or an accidental firing, or both;
(e) the cruise missile is a military weapon, the development of which will have the effect of a needless and dangerous escalation of the nuclear arms race, thus endangering the security and lives of all people.
Section 7 of the Charter provides in English:
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
and in French:
7. Chacun a droit à la vie, à la liberté et à la sécurité de sa personne; il ne peut être porté atteinte à ce droit qu'en conformité avec les principes de justice fondamentale.
5. Before turning to an examination of the appellants' allegations concerning the results of the decision to permit testing and its consequences on their rights under s. 7, I think it would be useful to examine the principles governing the striking out of a statement of claim and dismissal of a cause of action.
(a) Striking Out a Statement of Claim
6. The respondents, by a motion pursuant to Rule 419(1)(a) of the Federal Court Rules, moved for an order to strike out the appellants' statement of claim as disclosing no reasonable cause of action. Rule 419(1)(a) reads as follows:
Rule 419. (1) The Court may at any stage of an action order any pleading to be struck out, with or without leave to amend, on the ground that
(a) it discloses no reasonable cause of action or defence, as the case may be,...
7. The most recent and authoritative statement of the principle applicable to determine when a statement of claim may be struck out is that of Estey J. in Attorney General of Canada v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735, at p. 740:
As I have said, all the facts pleaded in the statement of claim must be deemed to have been proven. On a motion such as this a court should, of course, dismiss the action or strike out any claim made by the plaintiff only in plain and obvious cases and where the court is satisfied that "the case is beyond doubt": Ross v. Scottish Union and National Insurance Co. (1920), 47 O.L.R. 308 (App. Div.)
8. Madame Justice Wilson in her reasons in the present case [at p. 486] summarized the relevant principles as follows:
The law then would appear to be clear. The facts pleaded are to be taken as proved. When so taken, the question is do they disclose a reasonable cause of action, i.e. a cause of action "with some chance of success" (Drummond‑Jackson v. British Medical Association, [1970] 1 All E.R. 1094) or, as Le Dain J. put it in Dowson v. Government of Canada (1981), 37 N.R. 127 (F.C.A.), at p. 138, is it "plain and obvious that the action cannot succeed".
9. I agree with Madame Justice Wilson that, regardless of the basis upon which the appellants advance their claim for declaratory relief‑‑whether it be s. 24(1) of the Charter , s. 52 of the Constitution Act, 1982 , or the common law‑‑they must at least be able to establish a threat of violation, if not an actual violation, of their rights under the Charter .
10. In short then, for the appellants to succeed on this appeal, they must show that they have some chance of proving that the action of the Canadian government has caused a violation or a threat of violation of their rights under the Charter .
(b) The Allegations of the Statement of Claim
11. The principal allegation of the statement of claim is that the testing of the cruise missile in Canada poses a threat to the lives and security of Canadians by increasing the risk of nuclear conflict, and thus violates the right to life, liberty and security of the person guaranteed by s. 7 of the Charter .
12. As a preliminary matter, it should be noted that the exact nature of the deprivation of life and security of the person that the appellants rely upon as the legal foundation for the violation of s. 7 they allege is not clear. There seem to be two possibilities. The violation could be the result of actual deprivation of life and security of the person that would occur in the event of a nuclear attack on Canada, or it could be the result of general insecurity experienced by all people in Canada as a result of living under the increased threat of nuclear war.
13. The first possibility is apparent on a literal reading of the statement of claim. The second possibility, however, appears to be more consistent with the appellants' submission at p. 31 of their factum, that:
...at the minimum, the above allegations show [in paragraph 7 of the statement of claim] that there is a "threat" to the life and security of the Appellants which "threat", depending upon the construction of the concept "infringe" or "deny" in Section 7 [sic], could arguably constitute an infringement or denial of their right to life and security of the person. The amendment to the Statement of Claim, rejected by the Court of Appeal, would have made infringement or denial more explicit when it states: "The very testing of the cruise missile per se in Canada endangers the Charter of Rights and Freedoms Section 7: (sic) Rights".
14. I believe that we are obliged to read the statement of claim as generously as possible and to accommodate any inadequacies in the form of the allegations which are merely the result of drafting deficiencies.
15. Thus, I am prepared to accept that the appellants intended both of these possible deprivations as a basis for the violation of s. 7. It is apparent, however, that the violation of s. 7 alleged turns upon an actual increase in the risk of nuclear war, resulting from the federal cabinet's decision to permit the testing of the cruise missile. Thus, to succeed at trial, the appellants would have to demonstrate, inter alia, that the testing of the cruise missile would cause an increase in the risk of nuclear war. It is precisely this link between the cabinet decision to permit the testing of the cruise and the increased risk of nuclear war which, in my opinion, they cannot establish. It will not be necessary therefore to address the issue of whether the deprivations of life and security of the person advanced by the appellants could constitute violations of s. 7.
16. As I have noted, both interpretations of the nature of the infringement of the appellants' rights are founded on the premise that if the Canadian government allows the United States government to test the cruise missile system in Canada, then there will be an increased risk of nuclear war. Such a claim can only be based on the assumption that the net result of all of the various foreign powers' reactions to the testing of the cruise missile in Canada will be an increased risk of nuclear war.
17. The statement of claim speaks of weapons control agreements being "practically unenforceable", Canada being "more likely to be the target of a nuclear attack", "increasing the likelihood of either a pre‑emptive strike or an accidental firing, or both", and "escalation of the nuclear arms race". All of these eventualities, culminating in the increased risk of nuclear war, are alleged to flow from the Canadian government's single act of allowing the United States to test the cruise missile in Canada.
18. Since the foreign policy decisions of independent and sovereign nations are not capable of prediction, on the basis of evidence, to any degree of certainty approaching probability, the nature of such reactions can only be a matter of speculation; the causal link between the decision of the Canadian government to permit the testing of the cruise and the results that the appellants allege could never be proven.
19. An analysis of the specific allegations of the statement of claim reveals that they are all contingent upon the possible reactions of the nuclear powers to the testing of the cruise missile in Canada. The gist of paragraphs (a) and (b) of the statement of claim is that verification of the cruise missile system is impossible because the missile cannot be detected by surveillance satellites, and that, therefore, arms control agreements will be unenforceable. This is based on two major assumptions as to how foreign powers will react to the development of the cruise missile: first, that they will not develop new types of surveillance satellites or new methods of verification, and second, that foreign powers will not establish new modes of co‑operation for dealing with the problem of enforcement. With respect to the latter of these points, it is just as plausible that lack of verification would have the effect of enhancing enforceability than of undermining it, since an inability on the part of nuclear powers to verify systems like the cruise could precipitate a system of enforcement based on co‑operation rather than surveillance.
20. As for paragraph (c), even if it were the case that the testing of the air‑launched cruise missile would result in an increased American military presence and interest in Canada, to say that this would make Canada more likely to be the target of a nuclear attack is to assume certain reactions of hostile foreign powers to such an increased American presence. It also makes an assumption about the degree to which Canada is already a possible target of nuclear attack. Given the impossibility of determining how an independent sovereign nation might react, it can only be a matter of hypothesis whether an increased American presence would make Canada more vulnerable to nuclear attack. It would not be possible to prove it one way or the other.
21. Paragraph (d) assumes that foreign states will not develop their technology in such a way as to meet the requirements of effective detection of the cruise and that there will therefore be an increased likelihood of pre‑emptive strike or an accidental firing, or both. Again, this assumption concerns how foreign powers are likely to act in response to the development of the cruise. It would be just as plausible to argue that foreign states would improve their technology with respect to detection of missiles, thereby decreasing the likelihood of accidental firing or pre‑emptive strike.
22. Finally, paragraph (e) asserts that the development of the cruise will lead to an escalation of the nuclear arms race. This again involves speculation based on assumptions as to how foreign powers will react. One could equally argue that the cruise would be the precipitating factor in compelling the nuclear powers to negotiate agreements that would lead to a de‑escalation of the nuclear arms race.
23. One final assumption, common to all the paragraphs except (c), is that the result of testing of the cruise missile in Canada will be its development by the United States. In all of these paragraphs, the alleged harm flows from the production and eventual deployment of the cruise missile. The effect that the testing will have on the development and deployment of the cruise can only be a matter of speculation. It is possible that as a result of the tests, the Americans would decide not to develop and deploy the cruise since the very reason for the testing is to establish whether the missile is a viable weapons system. Similarly, it is possible that the Americans would develop the cruise missile even if testing were not permitted by the Canadians.
24. In the final analysis, exactly what the Americans will decide to do about development and deployment of the cruise missile, whether tested in Canada or not, is a decision that they, as an independent and sovereign nation, will make for themselves. Even with the assistance of qualified experts, a court could only speculate on how the American government may make this decision, and how important a factor the results of the testing of the cruise in Canada will be in that decision.
25. What can be concluded from this analysis of the statement of claim is that all of its allegations, including the ultimate assertion of an increased likelihood of nuclear war, are premised on assumptions and hypotheses about how independent and sovereign nations, operating in an international arena of radical uncertainty, and continually changing circumstances, will react to the Canadian government's decision to permit the testing of the cruise missile.
26. The point of this review is not to quarrel with the allegations made by the appellants about the results of cruise missile testing. They are, of course, entitled to their opinion and belief. Rather, I wish to highlight that they are raising matters that, in my opinion, lie in the realm of conjecture, rather than fact. In brief, it is simply not possible for a court, even with the best available evidence, to do more than speculate upon the likelihood of the federal cabinet's decision to test the cruise missile resulting in an increased threat of nuclear war.
(c) The Rule that Facts in a Statement of Claim Must be Taken as Proven
27. We are not, in my opinion, required by the principle enunciated in Inuit Tapirisat, supra, to take as true the appellants' allegations concerning the possible consequences of the testing of the cruise missile. The rule that the material facts in a statement of claim must be taken as true for the purpose of determining whether it discloses a reasonable cause of action does not require that allegations based on assumptions and speculations be taken as true. The very nature of such an allegation is that it cannot be proven to be true by the adduction of evidence. It would, therefore, be improper to accept that such an allegation is true. No violence is done to the rule where allegations, incapable of proof, are not taken as proven.
II
The Cabinet's Decision to Permit the Testing of the Cruise Missile and the Application of the Charter of Rights and Freedoms
(a) Application of the Charter to Cabinet Decisions
28. I agree with Madame Justice Wilson that cabinet decisions fall under s. 32(1)( a ) of the Charter and are therefore reviewable in the courts and subject to judicial scrutiny for compatibility with the Constitution. I have no doubt that the executive branch of the Canadian government is duty bound to act in accordance with the dictates of the Charter . Specifically, the cabinet has a duty to act in a manner consistent with the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
(b) The Absence of a Duty on the Government to Refrain from Allowing Testing
29. I do not believe the action impugned in the present case can be characterized as contrary to the duties of the executive under the Charter . Section 7 of the Charter cannot reasonably be read as imposing a duty on the government to refrain from those acts which might lead to consequences that deprive or threaten to deprive individuals of their life and security of the person. A duty of the federal cabinet cannot arise on the basis of speculation and hypothesis about possible effects of government action. Such a duty only arises, in my view, where it can be said that a deprivation of life and security of the person could be proven to result from the impugned government act.
30. The principles governing remedial action by the courts on the basis of allegations of future harm are illustrative of the more general principle that there is no legal duty to refrain from actions which do not prejudice the legal rights of others. A person, whether the government or a private individual, cannot be held liable under the law for an action unless that action causes the deprivation, or threat of deprivation, of legal rights. And an action cannot be said to cause such deprivation where it is not provable that the deprivation will occur as a result of the challenged action. I am not suggesting that remedial action by the courts will be inappropriate where future harm is alleged. The point is that remedial action will not be justified where the link between the action and the future harm alleged is not capable of proof.
31. The reluctance of courts to provide remedies where the causal link between an action and the future harm alleged to flow from it cannot be proven is exemplified by the principles with respect to declaratory relief. According to Eager, The Declaratory Judgment Action (1971), at p. 5:
3. The remedy [of declaratory relief] is not generally available where the controversy is not presently existing but merely possible or remote; the action is not maintainable to settle disputes which are contingent upon the happening of some future event which may never take place.
4. Conjectural or speculative issues, or feigned disputes or one‑sided contentions are not the proper subjects for declaratory relief.
Similarly, Sarna has said, "The court does not deal with unripe claims, nor does it entertain proceedings with the sole purpose of remedying only possible conflicts": (The Law of Declaratory Judgments (1978), at p. 179).
32. None of this is to deny the preventative role of the declaratory judgment. As Madame Justice Wilson points out in her judgment, Borchard, Declaratory Judgments (2nd ed. 1941), at p. 27, states that,
...no "injury" or "wrong" need have been actually committed or threatened in order to enable the plaintiff to invoke the judicial process; he need merely show that some legal interest or right of his has been placed in jeopardy or grave uncertainty....
33. Nonetheless, the preventative function of the declaratory judgment must be based on more than mere hypothetical consequences; there must be a cognizable threat to a legal interest before the courts will entertain the use of its process as a preventive measure. As this Court stated in Solosky v. The Queen, [1980] 1 S.C.R. 821, a declaration could issue to affect future rights, but not where the dispute in issue was merely speculative. In Solosky, supra, one of the questions was whether an order by a director of a prison to censor correspondence between the appellant inmate and his solicitor could be declared unlawful. The dispute had already arisen as a result of the existence of the censorship order and the declaration sought was a direct and present challenge to this order. This Court found that the fact that the relief sought would relate to letters not yet written, and thereby affect future rights, was not in itself a bar to the granting of a declaration. The Court made it clear, however, at p. 832:
... that a declaration will not normally be granted when the dispute is over and has become academic, or where the dispute has yet to arise and may not arise.
(Emphasis added.)
34. A similar concern with the problems inherent in basing relief on the prediction of future events is found in the principles relating to injunctive relief. Professor Sharpe, Injunctions and Specific Performance (1983), clearly articulates the difficulties in issuing an injunction where the alleged harm is prospective at pp. 30‑31:
All injunctions are future looking in the sense that they are intended to prevent or avoid harm rather than compensate for an injury already suffered ....
Where the harm to the plaintiff has yet to occur the problems of prediction are encountered. Here, the plaintiff sues quia timet‑‑because he fears‑‑and the judgment as to the propriety of injunctive relief must be made without the advantage of actual evidence as to the nature of harm inflicted on the plaintiff. The court is asked to predict that harm will occur in the future and that the harm is of a type that ought to be prevented by injunction.
35. The general principle with respect to such injunctions appears to be that "there must be a high degree of probability that the harm will in fact occur": Sharpe, supra, at p. 31. In Redland Bricks Ltd. v. Morris, [1970] A.C. 652, at p. 665, per Lord Upjohn, the House of Lords laid down four general propositions concerning the circumstances in which mandatory injunctive relief could be granted on the basis of prospective harm. The first of these stated [at p. 665]:
1. A mandatory injunction can only be granted where the plaintiff shows a very strong probability upon the facts that grave damage will accrue to him in the future.... It is a jurisdiction to be exercised sparingly and with caution but in the proper case unhesitatingly.
36. It is clearly illustrated by the rules governing declaratory and injunctive relief that the courts will not take remedial action where the occurrence of future harm is not probable. This unwillingness to act in the absence of probable future harm demonstrates the courts' reluctance to grant relief where it cannot be shown that the impugned action will cause a violation of rights.
37. In the present case, the speculative nature of the allegation that the decision to test the cruise missile will lead to an increased threat of nuclear war makes it manifest that no duty is imposed on the Canadian government to refrain from permitting the testing. The government's action simply could not be proven to cause the alleged violation of s. 7 of the Charter and, thus, no duty can arise.
III
Justiciability
38. The approach which I have taken is not based on the concept of justiciability. I agree in substance with Madame Justice Wilson's discussion of justiciability and her conclusion that the doctrine is founded upon a concern with the appropriate role of the courts as the forum for the resolution of different types of disputes. I have no doubt that disputes of a political or foreign policy nature may be properly cognizable by the courts. My concerns in the present case focus on the impossibility of the Court finding, on the basis of evidence, the connection, alleged by the appellants, between the duty of the government to act in accordance with the Charter of Rights and Freedoms and the violation of their rights under s. 7. As stated above, I do not believe the alleged violation‑‑namely, the increased threat of nuclear war‑‑could ever be sufficiently linked as a factual matter to the acknowledged duty of the government to respect s. 7 of the Charter .
IV
Section 52 of the Constitution Act, 1982 and Section 1 of the Charter
39. I would like to note that nothing in these reasons should be taken as the adoption of the view that the reference to "laws" in s. 52 of the Charter is confined to statutes, regulations and the common law. It may well be that if the supremacy of the Constitution expressed in s. 52 is to be meaningful, then all acts taken pursuant to powers granted by law will fall within s. 52. Equally, it is not necessary for the resolution of this case to express any opinion on the application of s. 1 of the Charter or the appropriate principles for its interpretation.
V
Conclusion
40. I would accordingly dismiss the appeal with costs.
The following are the reasons delivered by
41. Wilson J.‑‑This litigation was sparked by the decision of the Canadian government to permit the United States to test the cruise missile in Canada. It raises issues of great difficulty and considerable importance to all of us.
1. The Facts
42. The appellants are a group of organizations and unions claiming to have a collective membership of more than 1.5 million Canadians. They allege that a decision made by the Canadian government on July 15, 1983 to allow the United States to test cruise missiles within Canada violates their constitutional rights as guaranteed by the Canadian Charter of Rights and Freedoms . More specifically, quoting from their statement of claim:
7. The Plaintiffs state and the fact is that the testing of the cruise missile in Canada is a violation of the collective rights of the Plaintiffs and their members and all Canadians, specifically their right to security of the person and life in that:
(a) the size and eventual dispersion of the air‑launched cruise missile is such that the missile cannot be detected by surveillance satellites, thus making verification of the extent of this nuclear weapons system impossible;
(b) with the impossibility of verification, the future of nuclear weapons' control and limitation agreements is completely undermined as any such agreements become practically unenforceable;
(c) the testing of the air‑launched cruise missiles would result in an increased American military presence and interest in Canada which would result in making Canada more likely to be the target of a nuclear attack;
(d) as the cruise missile cannot be detected until approximately eight minutes before it reaches its target, a "Launch on Warning" system would be necessary in order to respond to the cruise missile thereby eliminating effective human discretion and increasing the likelihood of either a pre‑emptive strike or an accidental firing, or both;
(e) the cruise missile is a military weapon, the development of which will have the effect of a needless and dangerous escalation of the nuclear arms race, thus endangering the security and lives of all people.
43. The plaintiffs, in addition to declaratory relief, seek consequential relief in the nature of an injunction and damages. The defendants, by a motion pursuant to Rule 419(1) of the Federal Court Rules, moved to strike out the plaintiffs' statement of claim and to dismiss it as disclosing no reasonable cause of action. Cattanach J. dismissed the defendants' motion to strike on the grounds that the Charter applied to the Government of Canada, including executive acts of the cabinet, and that the statement of claim contained "the germ of a cause of action" and raised a "justiciable issue". The Federal Court of Appeal unanimously allowed the defendants' appeal.
2. The Judgment Appealed From
44. Each of the five judges who sat on the appeal to the Federal Court of Appeal delivered separate reasons for allowing the appeal. Four of the five (Pratte, Le Dain, Marceau and Hugessen JJ.) held that a breach of s. 7 of the Charter must involve a failure to comply with the principles of fundamental justice and the appellants had not alleged any such failure.
45. Three of the justices (Pratte, Marceau and Hugessen JJ.) were of the opinion that the facts as alleged did not constitute a violation of the right to life, liberty and security of the person as guaranteed by s. 7. Pratte and Hugessen JJ. thought that any breach of s. 7 would only occur as the result of actions by foreign powers who were not bound by the Charter . Pratte J. went further and stated that the only "liberty and security of the person" that was protected by s. 7 was security against arbitrary arrest or detention. Marceau J. felt that s. 7 could never have "any higher mission than that of protecting the life and the freedom of movement of the citizens against arbitrary action and despotism by people in power".
46. Two of the justices (Ryan and Le Dain JJ.) would have allowed the appeal on the fundamental ground that the issue was inherently non‑justiciable and therefore incapable of adjudication by a court. Ryan J. thought that the question whether national security was impaired, and hence whether the plaintiffs' own personal security had been affected, was not triable because it was not susceptible of proof. Le Dain J. took the central issue to be the effect of testing cruise missiles on the risk of nuclear conflict, a matter which he asserted to be non‑justiciable as involving factors either inaccessible to a court or incapable of being evaluated by it. The other three judges did not directly address this point.
47. Marceau J. would have allowed the appeal on the additional ground that the Charter did not give the courts a power to interfere with an exercise of the royal prerogative, especially when issues of defence and national security were involved. However, a majority of the Court (Pratte, Le Dain and Ryan JJ.) was of the opinion that the Charter did apply to decisions taken in the exercise of the royal prerogative. Hugessen J. did not deal with this question.
48. None of the five judges was prepared to say that the cabinet's decision to test the cruise missile was unreviewable because it involved a "political question". Pratte and Marceau JJ. expressly rejected this argument, Le Dain and Hugessen JJ. did not consider it necessary to deal with it, and Ryan J. did not mention it.
3. The Issues
49. The issues to be addressed on the appeal to this Court may be conveniently summarized as follows:
(1) Is a decision made by the Government of Canada in relation to a matter of national defence and foreign affairs unreviewable on any of the following grounds:
(a) it is an exercise of the royal prerogative;
(b) it is, because of the nature of the factual questions involved, inherently non‑justiciable;
(c) it involves a "political question" of a kind that a court should not decide?
(2) Under what circumstances can a Statement of Claim seeking declaratory relief concerning the constitutionality of a law or governmental decision be struck out as disclosing no cause of action?
(3) Do the facts as alleged in the Statement of Claim, which must be taken as proven, constitute a violation of s. 7 of the Canadian Charter of Rights and Freedoms ? and
(4) Do the plaintiffs have a right to amend the Statement of Claim before the filing of a Statement of Defence?
(1) Is the Government's Decision Reviewable?
(a) The Royal Prerogative
50. The respondents submit that at common law the authority to make international agreements (such as the one made with the United States to permit the testing) is a matter which falls within the prerogative power of the Crown and that both at common law and by s. 15 of the Constitution Act, 1867 the same is true of decisions relating to national defence. They further submit that since by s. 32(1)( a ) the Charter applies "to the Parliament and government of Canada in respect of all matters within the authority of Parliament", the Charter 's application must, so far as the government is concerned, be restricted to the exercise of powers which derive directly from statute. It cannot, therefore, apply to an exercice of the royal prerogative which is a source of power existing independently of Parliament; otherwise, it is argued, the limiting phrase "within the authority of Parliament" would be deprived of any effect. The answer to this argument seems to me to be that those words of limitation, like the corresponding words "within the authority of the legislature of each province" in s. 32(1)(b), are merely a reference to the division of powers in ss. 91 and 92 of the Constitution Act, 1867 . They describe the subject‑matters in relation to which the Parliament of Canada may legislate or the government of Canada may take executive action. As Le Dain J. points out, the royal prerogative is "within the authority of Parliament" in the sense that Parliament is competent to legislate with respect to matters falling within its scope. Since there is no reason in principle to distinguish between cabinet decisions made pursuant to statutory authority and those made in the exercise of the royal prerogative, and since the former clearly fall within the ambit of the Charter , I conclude that the latter do so also.
(b) Non‑Justiciability
51. Le Dain and Ryan JJ. in the Federal Court of Appeal were of the opinion that the issues involved in this case are inherently non‑justiciable, either because the question whether testing the cruise missile increases the risk of nuclear war is not susceptible of proof and hence is not triable (per Ryan J.) or because answering that question involves factors which are either inaccessible to a court or are of a nature which a court is incapable of evaluating (per Le Dain J.) To the extent that this objection to the appellants' case rests on the inherent evidentiary difficulties which would obviously confront any attempt to prove the appellants' allegations of fact, I do not think it can be sustained. It might well be that, if the issue were allowed to go to trial, the appellants would lose simply by reason of their not having been able to establish the factual basis of their claim but that does not seem to me to be a reason for striking the case out at this preliminary stage. It is trite law that on a motion to strike out a statement of claim the plaintiff's allegations of fact are to be taken as having been proved. Accordingly, it is arguable that by dealing with the case as they have done Le Dain and Ryan JJ. have, in effect, made a presumption against the appellants which they are not entitled, on a preliminary motion of this kind, to make.
52. I am not convinced, however, that Le Dain and Ryan JJ. were restricting the concept of non‑justiciability to difficulties of evidence and proof. Both rely on Lord Radcliffe's judgment in Chandler v. Director of Public Prosecutions, [1962] 3 All E.R. 142 (H.L.), and especially on the following passage at p. 151:
The disposition and equipment of the forces and the facilities afforded to allied forces for defence purposes constitute a given fact and it cannot be a matter of proof or finding that the decisions of policy on which they rest are or are not in the country's best interests. I may add that I can think of few issues which present themselves in less triable form. It would be ingenuous to suppose that the kind of evidence that the appellants wanted to call could make more than a small contribution to its final solution. The facts which they wished to establish might well be admitted: even so, throughout history men have had to run great risk for themselves and others in the hope of attaining objectives which they prize for all. The more one looks at it, the plainer it becomes, I think, that the question whether it is in the true interests of this country to acquire, retain or house nuclear armaments depends on an infinity of considerations, military and diplomatic, technical, psychological and moral, and of decisions, tentative or final, which are themselves part assessments of fact and part expectations and hopes. I do not think that there is anything amiss with a legal ruling that does not make this issue a matter for judge or jury.
(Emphasis added.)
In my opinion, this passage makes clear that in Lord Radcliffe's view these kinds of issues are to be treated as non‑justiciable not simply because of evidentiary difficulties but because they involve moral and political considerations which it is not within the province of the courts to assess. Le Dain J. maintains that the difficulty is one of judicial competence rather than anything resembling the American "political questions" doctrine. However, in response to that contention it can be pointed out that, however unsuited courts may be for the task, they are called upon all the time to decide questions of principle and policy. As Melville Weston points out in "Political Questions," 38 Harv. L. Rev. 296 (1925), at p. 299:
The word "justiciable" ... is legitimately capable of denoting almost any question. That is to say, the questions are few which are intrinsically incapable of submission to a tribunal having an established procedure, with an orderly presentation of such evidence as is available, for the purpose of an adjudication from which practical consequences in human conduct are to follow. For example, when nations decline to submit to arbitration or to the compulsory jurisdiction of a proposed international tribunal those questions of honor or interest which they call "non‑justiciable", they are really avoiding that broad sense of the word, but what they mean is a little less clear. Probably they mean only that they will not, or deem they ought not, endure the presentation of evidence on such questions, nor bind their conduct to conform to the proposed adjudications. So far as "non‑justiciable" is for them more than an epithet, it expresses a sense of a lack of fitness, and not of any inherent impossibility, of submitting these questions to judicial or quasi‑judicial determination.
53. In the 1950's and early 1960's there was considerable debate in Britain over the question whether restrictive trade practices legislation gave rise to questions which were subject to judicial determination: see Marshall, "Justiciability," in Oxford Essays in Jurisprudence (1961), ed. A.G. Guest; Summers, "Justiciability" (1963), 26 M.L.R. 530; Stevens, "Justiciability: The Restrictive Practices Court Re‑Examined," [1964] Public Law 221. I think it is fairly clear that the British restrictive trade practices legislation did not involve the courts in the resolution of issues more imponderable than those facing American courts administering the Sherman Act. Indeed, there is significantly less "policy" content in the decisions of the courts in those cases than there is in the decisions of administrative tribunals such as the Canadian Transport Commission or the CRTC. The real issue there, and perhaps also in the case at bar, is not the ability of judicial tribunals to make a decision on the questions presented, but the appropriateness of the use of judicial techniques for such purposes.
54. I cannot accept the proposition that difficulties of evidence or proof absolve the Court from making a certain kind of decision if it can be established on other grounds that it has a duty to do so. I think we should focus our attention on whether the courts should or must rather than on whether they can deal with such matters. We should put difficulties of evidence and proof aside and consider whether as a constitutional matter it is appropriate or obligatory for the courts to decide the issue before us. I will return to this question later.
(c) The Political Questions Doctrine
55. It is a well established principle of American constitutional law that there are certain kinds of "political questions" that a court ought to refuse to decide. In Baker v. Carr, 369 U.S. 186 (1962), at pp. 210‑11, Brennan J. discussed the nature of the doctrine in the following terms:
We have said that "In determining whether a question falls within (the political question) category, the appropriateness under our system of government of attributing finality to the action of the political departments and also the lack of satisfactory criteria for a judicial determination are dominant considerations." Coleman v. Miller, 307 U.S. 433, 454‑455. The nonjusticiability of a political question is primarily a function of the separation of powers. Much confusion results from the capacity of the "political question" label to obscure the need for case‑by‑case inquiry. Deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution.
At page 217 he said:
It is apparent that several formulations which vary slightly according to the settings in which the questions arise may describe a political question, although each has one or more elements which identify it as essentially a function of the separation of powers. Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
While one or two of the categories of political question referred to by Brennan J. raise the issue of judicial or institutional competence already referred to, the underlying theme is the separation of powers in the sense of the proper role of the courts vis‑à‑vis the other branches of government. In this regard it is perhaps noteworthy that a distinction is drawn in the American case law between matters internal to the United States on the one hand and foreign affairs on the other. In the area of foreign affairs the courts are especially deferential to the executive branch of government: see e.g. Atlee v. Laird, 347 F.Supp. 689 (1972) (U.S. Dist. Ct.), at pp. 701 ff.
56. While Brennan J.'s statement, in my view, accurately sums up the reasoning American courts have used in deciding that specific cases did not present questions which were judicially cognizable, I do not think it is particularly helpful in determining when American courts will find that those factors come into play. In cases from Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), to United States v. Nixon, 418 U.S. 683 (1974), the Court has not allowed the "respect due coordinate branches of government" to prevent it from rendering decisions highly embarrassing to those holding executive or legislative office. In Baker v. Carr itself, supra, Frankfurter J., in dissent, expressed concern that the judiciary could not find manageable standards for the problems presented by the reapportionment of political districts. Indeed, some would say that the enforcement of the desegregation decision in Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), gave rise to similar problems of judicial unmanageability. Yet American courts have ventured into these areas undeterred.
57. Academic commentators have expended considerable effort trying to identify when the political questions doctrine should apply. Although there are many theories (perhaps best summarized by Professor Scharpf in his article "Judicial Review and the Political Question: A Functional Analysis," 75 Yale L.J. 517 (1966)), I think it is fair to say that they break down along two broad lines. The first, championed by scholars such as Weston, "Political Questions," supra, and Wechsler, Principles, Politics, and Fundamental Law (1961); Wechsler, Book Review, 75 Yale L.J. 672 (1966), define political questions principally in terms of the separation of powers as set out in the Constitution and turn to the Constitution itself for the answer to the question when the Courts should stay their hand. The second school, represented by Finkelstein, "Judicial Self‑Limitation," 37 Harv. L.Rev. 338 (1924), and Bickel The Least Dangerous Branch (1962), especially chapter 4, "The Passive Virtues," roots the political questions doctrine in what seems to me to be a rather vague concept of judicial "prudence" whereby the courts enter into a calculation concerning the political wisdom of intervention in sensitive areas. More recently, commentators such as Tigar, "Judicial Power, the ‘Political Question Doctrine,’ and Foreign Relations," 17 U.C.L.A. L.R. 1135 (1970), and Henkin, "Is There a `Political Question' Doctrine?" 85 Yale L.J. 597 (1976), have doubted the need for a political questions doctrine at all, arguing that all the cases which were correctly decided can be accounted for in terms of orthodox separation of powers doctrine.
58. Professor Tigar in his article suggests that the political questions doctrine is not really a doctrine at all but simply "a group of quite different legal rules and principles, each resting in part upon deference to the political branches of government" (p. 1163). He sees Justice Brennan's formulation of the doctrine in Baker v. Carr, supra, as an "unsatisfactory effort to rationalize a collection of disparate precedent" (p. 1163).
59. In the House of Lords in Chandler, supra, Lord Devlin expressed a similar reluctance to retreat from traditional techniques in the interpretation of the phrase "purpose prejudicial to the safety or interests of the state..." in the Official Secrets Act, 1911. His colleagues, in particular Lord Radcliffe and Lord Reid, seem to have been of the view that in matters of defence the Crown's opinion as to what was prejudicial to the safety or interests of the State was conclusive upon the courts. Lord Devlin agreed with the result reached by his colleagues on the facts before him, and with the observation of Lord Parker on the Court of Criminal Appeal ([1962] 2 All E.R. 314, at pp. 319‑20) that "the manner of the exercise of... [the Crown's] prerogative powers [over the disposition and armament of the military] cannot be inquired into by the courts, whether in a civil or a criminal case...." ([1962] 3 All E.R. 142, at p. 157) but went on to make three observations in clarification of his position.
60. Lord Devlin's first observation was that the principle that the substance of discretionary decisions is not reviewable in the courts is one basic to administrative law and is not confined to matters of defence or the exercise of the prerogative. The second point was that even though review on the merits of a discretionary decision was excluded, that did not mean that judicial review was excluded entirely. The third comment was that the nature and effect of the principle of judicial review is "[to limit] the issue which the court has to determine...." ([1962] 3 All E.R. 142, at p. 158).
61. Lord Devlin then proceeded to apply these propositions to the case before him and asked what it was that the jury was required to determine. In his view "the fact to be proved is the existence of a purpose prejudicial to the state‑‑not a purpose which `appears to the Crown' to be prejudicial to the state" ([1962] 3 All E.R. 142, at p. 158). He accordingly went on to conclude at p. 159:
Consequently, the Crown's opinion as to what is or is not prejudicial in this case is just as inadmissible as the appellants'. The Crown's evidence about what its interests are is an entirely different matter. They can be proved by an officer of the Crown wherever it may be necessary to do so. In a case like the present, it may be presumed that it is contrary to the interests of the Crown to have one of its airfields immobilised just as it may be presumed that it is contrary to the interests of an industrialist to have his factory immobilised. The thing speaks for itself, as the Attorney‑General submitted. But the presumption is not irrebuttable. Men can exaggerate the extent of their interests and so can the Crown. The servants of the Crown, like other men animated by the highest motives, are capable of formulating a policy ad hoc so as to prevent the citizen from doing something that the Crown does not want him to do. It is the duty of the courts to be as alert now as they have always been to prevent abuse of the prerogative. But in the present case there is nothing at all to suggest that the Crown's interest in the proper operation of its airfields is not what it may naturally be presumed to be or that it was exaggerating the perils of interference with their effectiveness.
(Emphasis added.)
62. It seems to me that the point being made by Lord Devlin, as well as by Tigar and Henkin in their writings, is that the courts should not be too eager to relinquish their judicial review function simply because they are called upon to exercise it in relation to weighty matters of state. Equally, however, it is important to realize that judicial review is not the same thing as substitution of the court's opinion on the merits for the opinion of the person or body to whom a discretionary decision‑making power has been committed. The first step is to determine who as a constitutional matter has the decision‑making power; the second is to determine the scope (if any) of judicial review of the exercise of that power.
63. It might be timely at this point to remind ourselves of the question the Court is being asked to decide. It is, of course, true that the federal legislature has exclusive legislative jurisdiction in relation to defence under s. 91(7) of the Constitution Act, 1867 and that the federal executive has the powers conferred upon it in ss. 9‑15 of that Act. 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. Because the effect of the appellants' action is to challenge the wisdom of the government's defence policy, it is tempting to say that the Court should in the same way refuse to involve itself. However, I think this would be to miss the point, to fail to focus on the question which is before us. 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. Indeed, s. 24(1) of the Charter , also part of the Constitution, makes it clear that the adjudication of that question is the responsibility of "a court of competent jurisdiction". While the court is entitled to grant such remedy as it "considers appropriate and just in the circumstances", I do not think it is open to it to relinquish its jurisdiction either on the basis that the issue is inherently non‑justiciable or that it raises a so‑called "political question": see Martin H. Redish, "Abstention, Separation of Powers, and the Limits of the Judicial Function," 94 Yale L.J. 71 (1984).
64. 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.
65. One or two hypothetical situations will, I believe, illustrate the point. Let us take the case of a person who is being conscripted for service during wartime and has been ordered into battle overseas, all of this pursuant to appropriate legislative and executive authorization. He wishes to challenge his being conscripted and sent overseas as an infringement of his rights under s. 7. It is apparent that his liberty has been constrained and, if he is sent into battle, his security of the person and, indeed, his life are put in jeopardy. It seems to me that it would afford the conscriptee a somewhat illusory protection if the validity of his challenge is to be determined by the executive. On the other hand, it does not follow from these facts that the individual's rights under the Charter have been violated. Even if an individual's rights to life and liberty under s. 7 are interpreted at their broadest, it is clear from s. 1 that they are subject to "such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society". If the Court were of the opinion that conscription during wartime was a "reasonable limit" within the meaning of s. 1, a conscriptee's challenge on the facts as presented would necessarily fail.
66. By way of contrast, one can envisage a situation in which the government decided to force a particular group to participate in experimental testing of a deadly nerve gas. Although the government might argue that such experiments were an important part of our defence effort, I find it hard to believe that they would survive judicial review under the Charter . Equally we could imagine a situation during wartime in which the army began to seize people for military service without appropriate enabling legislation having been passed by Parliament. Such "press gang" tactics would, one might expect, be subject to judicial review even if the executive thought they were justified for the prosecution of the war.
67. Returning then to the present case, it seems to me that the legislature has assigned to the courts as a constitutional responsibility the task of determining whether or not a decision to permit the testing of cruise missiles violates the appellants' rights under the Charter . The preceding illustrations indicate why the legislature has done so. It is therefore, in my view, not only appropriate that we decide the matter; it is our constitutional obligation to do so.
(2) In What Circumstances May a Statement of Claim Seeking Declaratory Relief Be Struck Out?
68. In order to put this issue in context it is necessary to review the procedural history of the case.
69. On July 20, 1983 the appellants filed a statement of claim seeking a declaration that their constitutional rights had been violated and consequential relief in the form of an injunction, damages and costs. The respondents moved on August 11, 1983 under Rule 419(1) of the Federal Court Rules to strike out the statement of claim primarily on the ground that it disclosed no reasonable cause of action. The statement was also alleged to be frivolous and vexatious and an abuse of the process of the Court. Cattanach J. denied the motion on September 15, 1983. He noted the requirement under Rule 408 that a statement of claim contain a precise statement of the material facts upon which the plaintiff relies and must stand or fall on the allegations of fact. He said that a statement of claim would not be struck out if the facts alleged were capable of constituting "the scintilla of a cause of action". He noted that by virtue of s. 32(1)( a ) the Charter applies to the Parliament and government of Canada and by virtue of s. 24(1) the Court has jurisdiction to administer and provide appropriate remedies. He concluded that the statement of claim contained sufficient allegations to raise a justiciable issue and analogized the alleged liability of the respondents to liability for extra‑hazardous activities contemplated by the rule in Rylands v. Fletcher, [1861‑73] All E.R. 1 (H.L.) He concluded that there was a "germ of a cause of action" disclosed in the statement of claim.
70. On September 19, 1983 the respondents appealed to the Federal Court of Appeal. On October 7, 1983 the appellants sought leave from the Court of Appeal to amend their statement of claim under Rule 1104 to include an allegation that the testing of the cruise missile in Canada per se violated the appellants' rights under s. 7 of the Charter . Pratte J. dimissed the application without reasons on October 11, 1983. The Federal Court of Appeal heard the case on November 28, 1983 and allowed the respondents' appeal for the reasons outlined earlier.
71. The appeal to this Court was heard on February 14 and 15, 1984. On March 6, 1984 the appellants applied to Muldoon J. for an injunction under Rule 469 of the Federal Court Rules to prevent testing until the case was decided. Muldoon J. concluded that until this Court decreed differently the law applicable to the matter was that the appellants' claim was non‑justiciable. He held that in order to get an interlocutory injunction "cogent" evidence of a violation of a right had to be presented. The evidence presented was speculative only and could not establish a "real and proximate jeopardy" to the appellants' rights. There was nothing therefore to support the issue of an injunction.
72. The procedural issue before the Court then is: did the appellants' statement of claim disclose a reasonable cause of action within the meaning of Rule 419 of the Federal Court Rules?
(a) The Applicable Principle
73. Estey J. stated the applicable principle in Attorney General of Canada v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735, at p. 740:
As I have said, all the facts pleaded in the statement of claim must be deemed to have been proven. On a motion such as this a court should, of course, dismiss the action or strike out any claim made by the plaintiff only in plain and obvious cases and where the court is satisfied that "the case is beyond doubt": Ross v. Scottish Union and National Insurance Co. (1920), 47 O.L.R. 308 (App. Div.)
74. In Shawn v. Robertson (1964), 46 D.L.R. (2d) 363, a declaration was sought against a ministerial exercise of discretion. An application for striking out on the basis of no reasonable cause of action was made under the Ontario Rules. Grant J. stated, at p. 365:
The principles to be applied by the Court in determining whether to exercise jurisdiction conferred by Rule 126 or not are set out in the following cases; in Ross v. Scottish Union & National Insurance Co. (1920), 53 D.L.R. 415 at pp. 421‑2, 47 O.L.R. 308 at p. 316, Magee, J.A., states:
That inherent jurisdiction is partly embodied in our Rule 124 (now R. 126) ... The Rule has only been acted upon in plain and obvious cases, and it should only be so when the Court is satisfied that the case is one beyond doubt, and that there is no reasonable cause of action or defence.
And at p. 423 D.L.R., p. 317 O.L.R.: "To justify the use of Rule 124 ... it is not sufficient that the plaintiff is not likely to succeed at the trial."
In Gilbert Surgical Supply Co. and Gilbert v. Frank W. Horner Ltd., 34 C.P.R. 17, [1960] O.W.N. 289, 19 Fox Pat. C. 209, Aylesworth, J.A., speaking for himself, Porter C.J.O., and LeBel, J.A., states as follows at p. 289 O.W.N.:
He said that the action was novel and he could not agree that the defendant had shown the case to be one within the Rule. At this stage of litigation the Court could not conclude that the plaintiff's action could not possibly succeed or that clearly and beyond all doubt, no reasonable cause of action had been shown.
75. A case analogous to the present case, not in the nature of the issues involved but in the novelty of the alleged cause of action and the absence of precedent, is McKay v. Essex Area Health Authority, [1982] 2 All E.R. 771. In that case a pregnant mother contracted German measles in the early months of her pregnancy. Her doctor took blood samples from her which were tested by the defendant Health Authority but the infection was not diagnosed and the child was born severely disabled. The mother and child sued the doctor and the Health Authority for negligence, the child claiming damages for her "entry into a life in which her injuries are highly debilitating". The Master struck out the child's claim on the basis it disclosed no reasonable cause of action. His order was set aside on appeal, the judge holding that the defendants owed a duty of care to the child and her real claim was not that she had suffered damage by reason of "wrongful entry into life" but by reason of having been born deformed. This gave rise to a reasonable cause of action. An appeal to the Court of Appeal was allowed and the order of the Master striking out the claim restored.
76. Stephenson L.J. had to struggle with the question whether a child had a right not to be born deformed which in the case of a child deformed or disabled before birth by disease meant a right to be aborted. Counsel for the child submitted that this could not be viewed as a plain and obvious case susceptible of only one result, nor could it be viewed as frivolous or vexatious; although it might be novel, it raised issues of real substance which ought to go to trial. His Lordship disagreed. He said at p. 778:
Here the court is considering not `ancient law' but a novel cause of action, for or against which there is no authority in any reported case in the courts of the United Kingdom or the Commonwealth. It is tempting to say that the question whether it exists is so difficult and so important that it should be argued out at a trial and on appeal up to the House of Lords. But it may become just as plain and obvious, after argument on the defendants' application to strike it out, that the novel cause of action is unarguable or unsustainable or has no chance of succeeding.
(Emphasis added.)
77. It would seem then that as a general principle the Courts will be hesitant to strike out a statement of claim as disclosing no reasonable cause of action. The fact that reaching a conclusion on this preliminary issue requires lengthy argument will not be determinative of the matter nor will the novelty of the cause of action militate against the plaintiffs.
78. It has been suggested, however, that the plaintiffs' claim should be struck out because some of the allegations contained in it are not matters of fact but matters of opinion and that matters of opinion, being to some extent speculative, do not fall within the principle that the allegations of fact in the statement of claim must be taken as proved. I cannot accept this proposition since it appears to me to imply that a matter of opinion is not subject to proof. What we are concerned with for purposes of the application of the principle is, it seems to me, "evidentiary" facts. These may be either real or intangible. Real facts are susceptible of proof by direct evidence. Intangible facts, on the other hand, may be proved by inference from real facts or through the testimony of experts. Intangible facts are frequently the subject of opinion. The question of the probable cause of a certain result is a good illustration and germane to the issues at hand. An allegation that the lack of shower facilities at a defendant's brickworks probably resulted in a plaintiff employee's skin disease may in lay language appear to be merely an expression of medical opinion, but it is also in law a determination which the courts can properly infer from the surrounding facts and expert opinion evidence: see McGhee v. National Coal Board, [1972] 3 All E.R. 1008 (H.L.) Indeed, even a finding that an event "would cause" a certain result in the future is a finding of intangible fact. For example, in Fleming v. Hislop (1886), 11 A.C. 686, it was necessary to determine whether or not the finding "that the ignition of any other heap or bing of blaes on said farm or in the vicinity of the pursuers' land would cause material discomfort and annoyance to the pursuers," was a finding of fact or a finding of law. It was argued that it could not be a finding of fact because it related to something that was "prospective, future, not actually in existence". The Earl of Selborne agreed that, since the thing had not actually happened, a finding of fact as a thing past was impossible. But it was nevertheless a finding of fact and "there is a fallacy in saying that, because the word `would' is a word of futurity, the words `would cause' do not mean something which is properly a fact" (p. 690). See also on causation as an issue of fact Alphacell Ltd. v. Woodward, [1972] 2 All E.R. 475, per Lord Salmon, at pp. 489‑90.
The nature of causation has been discussed by many eminent philosophers and also by a number of learned judges in the past. I consider, however, that what or who has caused a certain event to occur is essentially a practical question of fact which can best be answered by ordinary common sense rather than abstract metaphysical theory.
79. In my view, several of the allegations contained in the statement of claim are statements of intangible fact. Some of them invite inferences; others anticipate probable consequences. They may be susceptible to proof by inference from real facts or by expert testimony or "through the application of common sense principles": see Leyland Shipping Co. v. Norwich Union Fire Insurance Society, [1918] A.C. 350, at p. 363, per Lord Dunedin. We may entertain serious doubts that the plaintiffs will be able to prove them by any of these means. It is not, however, the function of the Court at this stage to prejudge that question. I agree with Cattanach J. that the statement of claim contains sufficient allegations to raise a justiciable issue.
(b) Declaratory Relief
80. This may be an appropriate point at which to consider the appellants' submission that in order to establish a reasonable cause of action in relation to their claim for declaratory relief as opposed to their claim for an injunction and damages, they do not have to allege in their statement of claim the violation of a right or the threat of a violation of a right. It is sufficient, they submit, that the plaintiff have standing, that a "serious constitutional issue" is raised, and that the declaration sought serves a useful purpose. In support of this contention the appellants rely on Minister of Justice of Canada v. Borowski, [1981] 2 S.C.R. 575, and Thorson v. Attorney General of Canada, [1975] 1 S.C.R. 138. Thorson involved an alleged excess of legislative power by the Parliament of Canada as did the later case of Nova Scotia Board of Censors v. McNeil, [1976] 2 S.C.R. 265. Given the nature of such questions it is undoubtly true that no violation of a right need necessarily be involved.
81. Borchard, Declaratory Judgments (2nd ed. 1941), at p. 27, suggests that declaratory relief in cases which are not susceptible of any other relief is distinctive in that:
... no "injury" or "wrong" need have been actually committed or threatened in order to enable the plaintiff to invoke the judicial process; he need merely show that some legal interest or right of his has been placed in jeopardy or grave uncertainty, by denial, by the existence of a potentially injurious instrument, by some unforeseen event or catastrophe the effect of which gives rise to dispute, or by the assertion of a conflicting claim by the defendant....
Borchard then goes to expand upon the concept of a "legal interest" at pp. 48‑49:
It is an essential condition of the right to invoke judicial relief that the plaintiff have a protectible interest. The fact that under declaratory procedure so many types of legal issues are presentable for determination which are incapable of any other form of relief, has imposed upon the courts at the outset the function of determining whether the facts justify the grant of judicial relief, and more particularly, whether the plaintiff has a "legal interest" in the relief he seeks. In the more familiar executory action, the legal interest is sought in the "cause of action," but, as already observed, the narrow scope often given to this ambiguous term has served to conceal from view the many occasions and situations in which a plaintiff not yet physically injured or one seeking escape from dilemma and uncertainty by a clarification of his legal position has need for judicial relief not of the traditional kind. The wider opportunity and necessity for judicial usefulness disclosed by the declaratory judgment make necessary either a more flexible and comprehensive connotation of the term "cause of action" or the employment of a less chameleonic term to indicate when the petitioner may be accorded judicial protection. Without losing sight of the necessity for jurisdictional facts, it is suggested that the term "legal interest" meets the need.
82. Where, however, the unconstitutionality of a law or an act is founded upon its conflict with a right, then the right must be alleged to have been violated. Such was the case in Borowski where a declaration was being sought to the effect that the abortion provisions in the Criminal Code contravened the right to life guaranteed by s. 1(a) of the Canadian Bill of Rights, R.S.C. 1970, App. III. It was alleged in Borowski that rights were being violated even although they were the rights of human foetuses and not rights of the plaintiff. It seems to me that whenever a litigant raises a "serious constitutional issue" involving a violation of the Charter or the Canadian Bill of Rights then, since what is being complained of is an alleged violation of a right, it follows almost by definition that the nature of the alleged violation must be asserted. Moreover, as the respondents point out, s. 24(1) of the Charter makes the infringement or denial of a right a pre‑condition to obtaining relief in the courts under that section. That being so, it seems to follow that the infringement or denial complained of must be specifically pleaded.
83. The appellants submit, however, that while their consequential relief in the form of an injunction and damages is made pursuant to s. 24(1) of the Charter , their claim for declaratory relief is at large. It is not sought pursuant to that section in paragraph 9(c) of their statement of claim which merely seeks a declaration of unconstitutionality. It is, they submit, a separate cause of action at common law and also under s. 52 of the Constitution Act, 1982 and can stand alone even if they fail in their claim for consequential relief under s. 24(1). They cite Rule 1723 of the Federal Court Rules which provides:
Rule 1723. No action shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the Court may make binding declarations of right whether or not any consequential relief is or could be claimed.
84. The appellants acknowledge that a declaration of unconstitutionality is a discretionary remedy (Solosky v. The Queen, [1980] 1 S.C.R. 821) but say that the discretion lies with the trial court and is exercisable only after a trial on the merits. Accordingly, their claim for this relief should not have been struck out at the preliminary stage regardless of the fate of their other claims. However, as the respondents point out, declaratory relief is only discretionary in the sense that a court may refuse it even if the case for it has been made out: see Zamir, The Declaratory Judgment (1962), at p. 193. The Court, therefore, on a motion to strike on the basis that no reasonable cause of action has been disclosed in the statement of claim is not in any sense usurping the discretionary power of the trial court.
(i) Inconsistency with the Constitution Act, 1982 , s. 52(1)
85. Section 52(1) of the Constitution Act, 1982 , provides:
52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.
86. Section 52 would appear to have the same role in terms of imposing a constitutional limitation on law‑making power in Canada as its predecessors, s. 2 of the Colonial Laws Validity Act, 1865, 28 & 29 Vict., c. 63 and s. 7 of the Statute of Westminster, 1931, 22 Geo. 5, c. 4 (R.S.C. 1970, App. II, No. 26): see La Forest, "The Canadian Charter of Rights and Freedoms : An Overview" (1983), 61 Can. Bar Rev. 19, at p. 28. Section 2 of the Colonial Laws Validity Act 1865 provides:
2. Any Colonial Law which is or shall be in any respect repugnant to the Provisions of any Act of Parliament extending to the Colony to which such Law may relate, or repugnant to any Order or Regulation made under Authority of such Act of Parliament, or having in the Colony the Force and Effect of such Act, shall be read subject to such Act, Order, or Regulation, and shall, to the Extent of such Repugnancy, but not otherwise, be and remain absolutely void and inoperative.
Section 7 of the Statute of Westminster, 1931 provides:
7. (1) Nothing in this Act shall be deemed to apply to the repeal, amendment or alteration of the British North America Acts, 1867 to 1930, or any order, rule or regulation made thereunder.
(2) The provisions of section two of this Act shall extend to laws made by any of the Provinces of Canada and to the powers of the legislatures of such Provinces.
(3) The powers conferred by this Act upon the Parliament of Canada or upon the legislatures of the Provinces shall be restricted to the enactment of laws in relation to matters within the competence of the Parliament of Canada or of any of the legislatures of the Provinces respectively.
Accordingly, Dickson J., as he then was, is unquestionably correct when he states in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 at p. 313:
Section 52 sets out the fundamental principle of constitutional law that the Constitution is supreme.
Dickson J. then goes on to note that where a declaration is sought under s. 52 to the effect that legislation is unconstitutional the standing requirements for constitutional litigation must of course be met.
87. If the appellants are relying on s. 52(1) of the Constitution Act, 1982 as the source of their right to a declaration of unconstitutionality, which it would appear from their factum that they are, it is noted that that provision is directed to "laws" which are inconsistent with the provisions of the Constitution.
88. Counsel for the appellants submitted in oral argument that they should not be prejudiced in the relief sought by the absence of any law authorizing, ratifying or implementing the agreement between Canada and the United States since legislation, they submitted, should have been passed. The government should not therefore be allowed to immunize itself against judicial review under s. 52 of the Constitution Act, 1982 by its own omission to do that which it ought to have done.
89. This argument assumes, of course, that legislation was required and this does not appear to be so. The law in relation to treaty‑making power was definitively established for Canada and the rest of the Commonwealth in Attorney‑General for Canada v. Attorney‑General for Ontario (Labour Conventions), [1937] A.C. 326, where Lord Atkin stated at pp. 347‑48:
It will be essential to keep in mind the distinction between (I.) the formation, and (2.) the performance, of the obligations constituted by a treaty, using that word as comprising any agreement between two or more sovereign States. Within the British Empire there is a well‑established rule that the making of a treaty is an executive act, while the performance of its obligations, if they entail alteration of the existing domestic law, requires legislative action. Unlike some other countries, the stipulations of a treaty duly ratified do not within the Empire, by virtue of the treaty alone, have the force of law. If the national executive, the government of the day, decide to incur the obligations of a treaty which involve alteration of law they have to run the risk of obtaining the assent of Parliament to the necessary statute or statutes. To make themselves as secure as possible they will often in such cases before final ratification seek to obtain from Parliament an expression of approval. But it has never been suggested, and it is not the law, that such an expression of approval operates as law, or that in law it precludes the assenting Parliament, or any subsequent Parliament, from refusing to give its sanction to any legislative proposals that may subsequently be brought before it. Parliament, no doubt, as the Chief Justice points out, has a constitutional control over the executive: but it cannot be disputed that the creation of the obligations undertaken in treaties and the assent to their form and quality are the function of the executive alone.
(Emphasis added.)
90. A treaty, therefore, may be in full force and effect internationally without any legislative implementation and, absent such legislative implementation, it does not form part of the domestic law of Canada. Legislation is only required if some alteration in the domestic law is needed for its implementation: see R. St. J. Macdonald: "The Relationship between International Law and Domestic Law in Canada," in Canadian Perspectives on International Law and Organization (1974), eds. Macdonald, Morris and Johnston, p. 88.
91. The agreement in this case took the form of an "exchange of notes" between Allan Gotlieb, Canadian Ambassador to the United States and Kenneth W. Dam, Acting Secretary of State, The United States State Department. As Mr. Gotlieb points out in an article entitled "Canadian Treaty‑Making: Informal Agreements and Interdepartmental Arrangements," in Canadian Perspectives on International Law and Organization, supra, at p. 230, Canadian treaty‑making practice has been characterized by a movement away from formal, full‑fledged governmental "treaties" and towards informal "exchange of notes" arrangements. There is nothing unusual, therefore, in the procedure adopted in relation to the cruise testing agreement.
92. Although little, if any, argument has been addressed in this case to the question whether the government's decision to permit testing of the cruise missile in Canada falls within the meaning of the word "law" as used in s. 52 of the Constitution Act, 1982 , I am prepared to assume, without deciding, that it does. I am also prepared to assume that the appellants could establish their standing to bring an action under s. 52. The question remains, however, whether the appellants' claim raises a serious question of constitutional inconsistency. This in turn depends on the answer to the question whether the government's decision violates the appellants' rights under s. 7. If it does not, there is no inconsistency with the provisions of the Constitution.
(ii) At common law
93. If the appellants' claim for declaratory relief is a claim at common law of the type upheld in Dyson v. Attorney‑General, [1911] 1 K.B. 410, no issue arises as to whether or not there is a "law" implementing the cruise testing agreement. The common law action affords a means of attack on the acts of public officials who have allegedly exceeded their powers. However, in order to have standing to bring such an action a plaintiff must, as noted from Borchard, supra, be able to show that he or she will suffer injury to a right or legally protected interest from the conduct of such officials. The same point is made in de Smith, Constitutional and Administrative Law (4th ed.), at p. 604:
The declaratory judgment is basically a twentieth‑century judicial remedy and has come to be used for a great variety of purposes in public and private law. Declarations can be awarded in almost every situation where an injunction will lie‑‑the most important exception is that interim relief cannot be granted by way of a declaration‑‑and they extend to a number of situations where an injunction would be inappropriate (for example, because there is nothing to prohibit) or could not be obtained for other reasons (for example, because the prospective defendant was the Crown). The rules governing locus standi are in a state of confusion. In Gouriet v. Union of Post Office Workers [[1977] 3 All E.R. 70 (H.L.)] Mr. Gouriet eventually amended his claim to an application for a declaration that the Union of Post Office Workers was acting unlawfully in blocking mail from this country to South Africa. He was refused such a declaration. Lord Wilberforce said: ‘... there is no support for the proposition that declaratory relief can be granted unless the plaintiff, in proper proceedings, in which there is a dispute between the plaintiff and defendant concerning their legal respective rights and liabilities, either asserts a legal right which is denied or threatened, or claims immunity from some claim of the defendant against him, or claims that the defendant is infringing or threatens to infringe some public right so as to inflict special damage on the plaintiff.’
(Emphasis added.)
I believe, therefore, that the appellants, even on the common law action for a declaration, must establish at least a threat of violation, if not an actual violation, of their rights under s. 7 of the Charter in order to bring a viable claim for declaratory relief against governmental action.
94. The law then would appear to be clear. The facts pleaded are to be taken as proved. When so taken, the question is do they disclose a reasonable cause of action, i.e. a cause of action "with some chance of success" (Drummond‑Jackson v. British Medical Association, [1970] 1 All E.R. 1094) or, as Le Dain J. put it in Dowson v. Government of Canada (1981), 37 N.R. 127 (F.C.A.), at p. 138, is it "plain and obvious that the action cannot succeed?" Is it plain and obvious that the plaintiffs' claim for declaratory or consequential relief cannot succeed?
(3) Could the Facts as Alleged Constitute a Violation of Section 7 of the Charter ?
95. Section 7 of the Canadian Charter of Rights and Freedoms provides as follows:
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
96. Whether or not the facts that are alleged in the appellants' statement of claim could constitute a violation of s. 7 is, of course, the question that lies at the heart of this case. If they could not, then the appellants' statement of claim discloses no reasonable cause of action and the appeal must be dismissed. The appellants submit that on its proper construction s. 7 gives rise to two separate and presumably independent rights, namely the right to life, liberty and security of the person, and the right not to be deprived of such life, liberty and security of the person except in accordance with the principles of fundamental justice. In their submission, therefore, a violation of the principles of fundamental justice would only have to be alleged in relation to a claim based on a violation of the second right. As Marceau J. points out in his reasons, the French text of s. 7 does not seem to admit of this two‑rights interpretation since only one right is specifically mentioned. Moreover, as the respondents point out, the appellants' suggestion does not accord with the interpretation that the courts have placed on the similarly structured provision in s. 1(a) of the Canadian Bill of Rights: see e.g., Miller v. The Queen, [1977] 2 S.C.R. 680, per Ritchie J., at pp. 703‑04.
97. The appellants' submission, however, touches upon a number of important issues regarding the proper interpretation of s. 7. Even if the section gives rise to a single unequivocal right not to be deprived of life, liberty or security of the person except in accordance with the principles of fundamental justice, there nonetheless remains the question whether fundamental justice is entirely procedural in nature or whether it has a substantive aspect as well. This, in turn, leads to the related question whether there might not be certain deprivations of life, liberty or personal security which could not be justified no matter what procedure was employed to effect them. These are among the most important and difficult questions of interpretation arising under the Charter but I do not think it is necessary to deal with them in this case. It can, in my opinion, be disposed of without reaching these issues.
98. In my view, even an independent, substantive right to life, liberty and security of the person cannot be absolute. For example, the right to liberty, which I take to be the right to pursue one's goals free of governmental constraint, must accommodate the corresponding rights of others. The concept of "right" as used in the Charter postulates the inter‑relation of individuals in society all of whom have the same right. The aphorism that "A hermit has no need of rights" makes the point. The concept of "right" also premises the existence of someone or some group against whom the right may be asserted. As Mortimer J. Adler expressed it in Six Great Ideas (1981), at p. 144:
Living in organized societies under effective government and enforceable laws, as they must in order to survive and prosper, human beings neither have autonomy nor are they entitled to unlimited liberty of action. Autonomy is incompatible with organized society. Unlimited liberty is destructive of it.
99. The concept of "right" as used in the Charter must also, I believe, recognize and take account of the political reality of the modern state. Action by the state or, conversely, inaction by the state will frequently have the effect of decreasing or increasing the risk to the lives or security of its citizens. It may be argued, for example, that the failure of government to limit significantly the speed of traffic on the highways threatens our right to life and security in that it increases the risk of highway accidents. Such conduct, however, would not, in my view, fall within the scope of the right protected by s. 7 of the Charter .
100. In the same way, the concept of "right" as used in the Charter must take account of the fact that the self‑contained political community which comprises the state is faced with at least the possibility, if not the reality, of external threats to both its collective well‑being and to the individual well‑being of its citizens. In order to protect the community against such threats it may well be necessary for the state to take steps which incidentally increase the risk to the lives or personal security of some or all of the state's citizens. Such steps, it seems to me, cannot have been contemplated by the draftsman of the Charter as giving rise to violations of s. 7. As John Rawls states in A Theory of Justice (1971), at p. 213:
The government's right to maintain public order and security is ... a right which the government must have if it is to carry out its duty of impartially supporting the conditions necessary for everyone's pursuit of his interests and living up to his obligations as he understands them.
101. The rights under the Charter not being absolute, their content or scope must be discerned quite apart from any limitation sought to be imposed upon them by the government under s. 1. As was pointed out by the Ontario Court of Appeal in Re Federal Republic of Germany and Rauca (1983), 41 O.R. (2d) 225, at p. 244:
... the Charter was not enacted in a vacuum and the rights set out therein must be interpreted rationally having regard to the then existing laws....
There is no liberty without law and there is no law without some restriction of liberty: see Dworkin, Taking Rights Seriously (1977), p. 267. This paradox caused Roscoe Pound to conclude:
There is no more ambiguous word in legal and juristic literature than the word right. In its most general sense it means a reasonable expectation involved in civilized life. [See Jurisprudence, vol. 4, (1959), p. 56.]
102. It is not necessary to accept the restrictive interpretation advanced by Pratte J., which would limit s. 7 to protection against arbitrary arrest or detention, in order to agree that the central concern of the section is direct impingement by government upon the life, liberty and personal security of individual citizens. At the very least, it seems to me, there must be a strong presumption that governmental action which concerns the relations of the state with other states, and which is therefore not directed at any member of the immediate political community, was never intended to be caught by s. 7 even although such action may have the incidental effect of increasing the risk of death or injury that individuals generally have to face.
103. I agree with Le Dain J. that the essence of the appellants' case is the claim that permitting the cruise missile to be tested in Canada will increase the risk of nuclear war. But even accepting this allegation of fact as true, which as I have already said I think we must do on a motion to strike, it is my opinion for the reasons given above that this state of affairs could not constitute a breach of s. 7. Moreover, I do not see how one can distinguish in a principled way between this particular risk and any other danger to which the government's action vis‑à‑vis other states might incidentally subject its citizens. A declaration of war, for example, almost certainly increases the risk to most citizens of death or injury. Acceptance of the appellants' submissions, it seems to me, would mean that any such declaration would also have to be regarded as a violation of s. 7. I cannot think that that could be a proper interpretation of the Charter .
104. This is not to say that every governmental action that is purportedly taken in furtherance of national defence would be beyond the reach of s. 7. If, for example, testing the cruise missile posed a direct threat to some specific segment of the populace‑‑as, for example, if it were being tested with live warheads‑‑I think that might well raise different considerations. A court might find that that constituted a violation of s. 7 and it might then be up to the government to try to establish that testing the cruise with live warheads was justified under s. 1 of the Charter . Section 1, in my opinion, is the uniquely Canadian mechanism through which the courts are to determine the justiciability of particular issues that come before it. It embodies through its reference to a free and democratic society the essential features of our constitution including the separation of powers, responsible government and the rule of law. It obviates the need for a "political questions" doctrine and permits the Court to deal with what might be termed "prudential" considerations in a principled way without renouncing its constitutional and mandated responsibility for judicial review. It is not, however, called into operation here since the facts alleged in the statement of claim, even if they could be shown to be true, could not in my opinion constitute a violation of s. 7.
(4) Can the Statement of Claim be Amended?
105. The appellants were denied leave by Pratte J. to amend their statement of claim by adding the following:
The very testing of the cruise missiles per se in Canada endangers the Charter of Rights and Freedoms Section 7: Rights.
106. Since this is a conclusion of law, not fact, it cannot in my view affect the factual allegations which the Court must accept as proved in order to decide whether the statement of claim should be struck out. We do not know the basis on which Pratte J. refused the amendment. He gave no reasons, nor was he obliged to. The matter was purely discretionary under Rule 1104. Certainly conclusions of law may be pleaded: see Famous Players Canadian Corp. v. J.J. Turner and Sons Ltd., [1948] O.W.N. 221, per Gale J. at pp. 221‑22, but they do not form part of the factual allegations which must be taken as proved for purposes of a motion to strike. No appeal was taken from the order of Pratte J.
107. Counsel for the appellants submit that prior to the filing of a statement of defence they were entitled to amend as of right under Rule 421 and that they should not be prejudiced with respect to this right because they invoked the discretion of the Court under Rule 1104. It may, however, be of significance in this connection that their application for amendment to the statement of claim was filed after the Crown had instituted its appeal to the Federal Court of Appeal. In my view, their application was therefore one made "during the pendency of an appeal" to which the Rules of the Federal Court of Appeal would apply. This means, in my view, that the appellants' right under Rule 421 had expired and their only recourse was to proceed under Rule 1104.
108. The point, however, may be academic. The proposed amendment amounts to no more than an assertion of the conclusion which the appellants submit the Court ought to come to on the main issue in the case. Since the Court must address that issue in any event, the addition of the suggested amendment could, it seems to me, make no difference one way or the other to the appellants' case.
Conclusions
109. In summary, it seems to me that the issues raised on the appeal are to be disposed of as follows:
(1) The government's decision to permit testing of the cruise missile in Canada cannot escape judicial review on any of the grounds advanced;
(2) The statement of claim may be struck out if the facts as alleged do not disclose a reasonable cause of action which in this case could be either
(a) a cause of action under s. 24(1) of the Charter ; or
(b) a cause of action for declaratory relief at common law on the principle of Dyson v. Attorney‑General, supra; or
(c) a cause of action under s. 52(1) of the Constitution Act, 1982 for a declaration of unconstitutionality.
(3) Taking the facts alleged as proven, they could not constitute a violation of s. 7 of the Charter so as to give rise to a cause of action under s. 24(1);
(4) The appellants could not establish their status to sue at common law for declaratory relief for the same reason that they could not establish a cause of action under s. 24(1); and
(5) The appellants could not establish a cause of action for declaratory relief under s. 52(1) since the facts as alleged could not constitute a violation of s. 7 and therefore no inconsistency with the provisions of the Constitution could be established.
110. I would accordingly dismiss the appeal with costs.
Appeal dismissed with costs.
Solicitors for the appellants: Karam, Tannis, Greenspon, Vanier.
Solicitor for the respondents: R. Tassé, Ottawa.
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