Lucas v. Toronto Police Service Board et al. [Indexed as: Lucas v. Toronto Police Service Board]

54 O.R. (3d) 715

[2001] O.J. No. 2334

Docket No. 740/00

Ontario Superior Court of Justice

Divisional Court

Then, Borkovich and Hill JJ.

June 14, 2001

Charter of Rights and Freedoms--Remedies--Plaintiff arrested and charged with anal intercourse with person under 18 contrary to s. 159 of Criminal Code--Charge subsequently withdrawn --Ontario Court of Appeal had declared s. 159 unconstitutional before charge laid--Plaintiff brought civil action against Attorney General of Canada and others--Motions judge erred in not striking claim against Attorney General --Legislature cannot be held liable in tort for exercising or failing to exercise legislative power--Plaintiff's claim against Attorney General not justiciable--Plaintiff's claim in civil action for declaration that s. 159 was unconstitutional moot in view of declaration already made by Ontario Court of Appeal--Continuing presence of s. 159 in Criminal Code did not render entire Code suspect--Criminal Code, R.S.C. 1985, c. C- 46, s. 159.

Crown--Actions against Crown--Plaintiff arrested and charged with anal intercourse with person under 18 contrary to s. 159 of Criminal Code--Charge subsequently withdrawn--Ontario Court of Appeal had declared s. 159 unconstitutional before charge laid--Plaintiff brought civil action against Attorney General of Canada and others--Motions judge erred in not striking claim against Attorney General--Legislature cannot be held liable in tort for exercising or failing to exercise legislative power --Plaintiff's claim against Attorney General not justiciable --Criminal Code, R.S.C. 1985, c. C-46, s. 159.

In 1998, the plaintiff was arrested and charged with anal intercourse with a person under 18 contrary to s. 159 of the Criminal Code. The Ontario Court of Appeal had struck down s. 159 as unconstitutional in 1995, but the section was not repealed. The charge was subsequently withdrawn. The plaintiff brought an action against the Attorney General of Canada and others, asserting that there is a constitutional duty to amend the Criminal Code when there has been a constitutional change, that Canada owes a duty to the public to ensure that Canada's laws are consistent with the provisions of the Canadian Charter of Rights and Freedoms, and that it was likely and foreseeable that the continued publication of s. 159 in the Criminal Code would subject gay men to arbitrary state action under cloak of the colour of right provided by the failure to amend or repeal s. 159. The Attorney General brought a motion under Rule 21 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 for an order striking out certain paragraphs of the statement of claim and dismissing the action against the Attorney General. The motion was dismissed. The Attorney General appealed.

Held, the appeal should be allowed.

A legislative body cannot be held liable in tort for exercising or failing to exercise its legislative power. The claim based on a Charter breach, to the extent that it was based on a failure to repeal s. 159 of the Criminal Code pursuant to the ruling by the Ontario Court of Appeal that the section was unconstitutional, was equally not justiciable and should have been struck by the motions judge.

The declaration sought by the plaintiff that s. 159 is unconstitutional was moot and redundant in view of the declaration that had already been made by the Ontario Court of Appeal. The unconstitutional status of s. 159 in Ontario has been authoritatively established by the Court of Appeal, and there is no need, in the context of an action in Ontario, for clarification of the constitutional status of s. 159 elsewhere in Canada.

The continuing presence of s. 159 in the Criminal Code does not render the entire Code suspect.

APPEAL from an order of Backhouse J. (2000), 2000 22722 (ON SC), 51 O.R. (3d) 783 dismissing a motion to strike a portion of a statement of claim.

R. v. M. (C.) (1995), 1995 8924 (ON CA), 23 O.R. (3d) 629, 30 C.R.R. (2d) 112, 98 C.C.C. (3d) 481, 41 C.R. (4th) 134 (C.A.), affg (1992), 1992 12798 (ON SC), 11 C.R.R. (2d) 363, 75 C.C.C. (3d) 556, 15 C.R. (4th) 368 (Ont. Gen. Div.), consd Manitoba Language Rights, Re, 1985 33 (SCC), [1985] 1 S.C.R. 721, 35 Man. R. (2d) 83, 19 D.L.R. (4th) 1, 59 N.R. 321, [1985] 4 W.W.R. 385, 3 C.R.R. D-1 (sub nom. Language Rights Under Manitoba Act, 1870), distd Other cases referred to A.O. Farms Inc. v. Canada, 2000 17045 (FC), [2000] F.C.J. No. 1771 (T.D.); Alberta v. Lefebvre, [1993] A.J. No. 94 (C.A.); House of Sgà nisim, Nisibitada v. Canada, [2000] B.C.J. No. 821 (C.A.); Hunt v. Carey Canada Inc., 1990 90 (SCC), [1990] 2 S.C.R. 959, 49 B.C.L.R. (2d) 273, 74 D.L.R. (4th) 321, 117 N.R. 321, [1990] 6 W.W.R. 385, 4 C.C.L.T. (2d) 1, 43 C.P.C. (2d) 105 (sub nom. Hunt v. T & N plc); Kwong v. Canada (1978), 1978 ALTASCAD 403, [1979] 2 W.W.R. 1, 96 D.L.R. (3d) 214, 8 C.C.L.T. 1 (Alta. C.A.) (sub nom. Kwong v. Alberta); Masse v. Ontario (Ministry of Community and Social Services) (1996), 1996 12491 (ON SCDC), 134 D.L.R. (4th) 20, 35 C.R.R. (2d) 44 (Ont. Div. Ct.) [Leave to appeal to S.C.C. refused (1996), 39 C.R.R. (2d) 375n]; McKinney v. University of Guelph, 1990 60 (SCC), [1990] 3 S.C.R. 229, 2 O.R. (3d) 319n, 45 O.A.C. 1, 76 D.L.R. (4th) 545, 118 N.R. 1, 2 C.R.R. (2d) 1, 91 C.L.L.C. 17,004, affg (1987), 1987 179 (ON CA), 63 O.R. (2d) 1, 24 O.A.C. 241, 46 D.L.R. (4th) 193, 37 C.R.R. 44 (C.A.), affg (1986), 1986 2832 (ON SC), 57 O.R. (2d) 1, 32 D.L.R. (4th) 65, 14 C.C.E.L. 1, 87 C.L.L.C. 17,009 (H.C.J.); New Brunswick Broadcasting Co. v. Donahoe, 1993 153 (SCC), [1993] 1 S.C.R. 319, 118 N.S.R. (2d) 181, 100 D.L.R. (4th) 212, 146 N.R. 161, 327 A.P.R. 181, 13 C.R.R. (2d) 1; Ontario Association of Radiologists, [1999] O.J. No. 3027 (Div. Ct.); Penikett v. R. (1987), 1987 145 (YK CA), 21 B.C.L.R. (2d) 1, [1988] N.W.T.R. 18, 45 D.L.R. (4th) 108, [1988] 2 W.W.R. 481 (Y.T.C.A.), revg (1987), 1987 5303 (YK SC), 43 D.L.R. (4th) 324, [1987] 5 W.W.R. 691, 30 C.R.R. 107 (Y.T.S.C.) (sub nom. Penikett v. Canada); R. v. Wolf, 1974 161 (SCC), [1974] 6 W.W.R. 368, 47 D.L.R. (3d) 741, 17 C.C.C. (2d) 425, 27 C.R.N.S. 150, 2 N.R. 415 (S.C.C.); Reference re Canada Assistance Plan (British Columbia), 1991 74 (SCC), [1991] 2 S.C.R. 525, 58 B.C.L.R. (2d) 1, 83 D.L.R. (4th) 297, 127 N.R. 161, [1991] 6 W.W.R. 1 (sub nom. Constitutional Question Act, Re); Reference re Secession of Quebec, 1998 793 (SCC), [1998] 2 S.C.R. 217, 161 D.L.R. (4th) 385, 228 N.R. 203, 55 C.R.R. (2d) 1; Swanson v. Canada (1991), 1991 8226 (FCA), [1992] 1 F.C. 408, 42 F.T.R. 80n, 80 D.L.R. (4th) 741, 124 N.R. 218, 7 C.C.L.T. (2d) 186 (C.A.), affg [1990] 2 F.C. 619, 32 F.T.R. 129 (sub nom. Swanson Estate v. Canada); Turner v. Canada (1992), 93 O.L.R. (4th) 628 (F.C.A.); Welbridge Holdings Ltd. v. Winnipeg (City) (1970), 1970 1 (SCC), [1971] 1 S.C.R. 957, 22 D.L.R. (3d) 470, [1972] 3 W.W.R. 433 Statutes referred to Canadian Charter of Rights and Freedoms Constitution Act, 1982, s. 52(1) Criminal Code, R.S.C. 1985, c. C-46, s. 159 [as am. R.S.C. 1985, c. 19 (3rd Supp.), s. 3] Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 21

Michael H. Morris, for Attorney General of Canada. Karen R. Spector and David L. Corbett, for plaintiff (respondent).

[1] Endorsement BY THE COURT:--The Attorney General of Canada appeals from the order of Madam Justice Backhouse dated November 15, 2000 which dismissed the appellant's motion to strike out those portions of the plaintiff's Statement of Claim which purport to assert a cause of action against the appellant. The impugned order dismissed the Attorney General of Canada's motion under Rule 21 [Rules of Civil Procedure, R.R.O. 1990, Reg. 194] which sought: 1) an order striking out paras. 4, 58.A to 58.H (inclusive), 58 to 65 (inclusive), 65.A and 65.B, 71, 72.A to 72.C (inclusive) of the "Plaintiff's Amended Claim" and 2) judgment dismissing the action [against] the Attorney General of Canada.

[2] The facts are succinctly reproduced in the judgment of the motions judge [at p. 785 O.R.]:

The Facts

For the purposes of this motion, counsel for Canada acknowledges that the facts alleged in the amended statement of claim must be deemed to have been proven. The facts pleaded by the plaintiff relevant to this motion are that on June 24, 1998, at 6:30 a.m., the plaintiff was handcuffed by police officers, taken in a police car to the police station, photographed, fingerprinted, taken to court at College Park and then to the Don Jail, where he spent the night. The next afternoon, he was brought before a justice of the peace and charged with anal intercourse with a person under the age of 18 years, allegedly contrary to s. 159 of the Criminal Code, R.S.C. 1985, c. C-46, as amended, and administering a drug or intoxicating liquor for the purpose of illicit sex contrary to s. 212(1)(i) of the Criminal Code. He was released on bail on June 25, 1998. The plaintiff was required to appear in court on several occasions to answer to the charges until on September 22, 1998 the charges wer e withdrawn. The anal intercourse charge was dropped because s. 159 had been struck down by the Ontario Court of Appeal in R. v. M (C.), supra. The charge of administering an intoxicating substance was also dropped because there was no longer any "illicit" sexual intercourse on which to base the charge.

The plaintiff was then charged in regard to the same incident with committing a sexual assault, although the complainant had not alleged a lack of consent. On the morning scheduled for the trial on the sexual assault charge, the Crown withdrew the remaining charge against the plaintiff.

In 1995, s. 159 of the Criminal Code was struck down by the Ontario Court of Appeal because it violated s. 15 of the Charter and was not saved by s. 1. No appeal was taken from that decision. Notwithstanding that, counsel for Canada does not concede the constitutional invalidity of that section.

[3] The motions judge also summarized the pleading of the respondents' purported cause of action as follows [at p. 786 O.R.]:

(a) Canada continues to publish s. 159 of the Criminal Code as part of the Consolidated Statutes of Canada without indicating its unconstitutional status;

(b) There is an independent constitutional duty to amend the Criminal Code when there has been a constitutional change;

(c) Canada owes a duty to the public to ensure that Canada's laws are consistent with the provisions of the Charter;

(d) It was likely and foreseeable that the continued publication of s. 159 of the Criminal Code would subject gay men, including himself, to arbitrary state action under the cloak of the colour of right provided by Canada's failure to act to amend or to repeal s. 159;

(e) The plaintiff suffered damages based upon Canada's failure to amend or repeal s. 159, which gave rise to his unlawful and unjustifiable arrest, imprisonment and prosecution;

(f) Canada should be held strictly liable for damages he alleges occurred as a result of the enforcement of an unconstitutional law. In the alternative, Canada was negligent in failing to amend or repeal s. 159 or take any reasonable steps to prevent enforcement of s. 159.

[4] The appellant's grounds on the [rule] 21 motion and elaborated before this court are as follows [at pp. 784-85 O.R.]:

(a) The plaintiff's claim against it raises no reasonable cause of action and is beyond the jurisdiction of this court. More specifically:

(i) the plaintiff's claim raises issues against Canada which are not justiciable, and invites this court to inquire into the legislative process of Parliament,

(ii) there is no constitutional or any other legal duty to amend, repeal, or cease to cause the publication of legislation, which could be owed to the plaintiff,

(iii) the plaintiff's claim, on its face, fails to make out the existence of any private law duty of care known to law;

(b) The plaintiff's request for a declaration that s. 159 of the Criminal Code, R.S.C. 1985, c. C-46 is of no force or effect is moot or redundant, and otherwise an abuse of process of this court as that section has already been so declared by the Ontario Court of Appeal in R. v. M. (C.) (1995), 1995 8924 (ON CA), 23 O.R. (3d) 629, 98 C.C.C. (3d) 481 (C.A.);

(c) There are no factual or legal grounds alleged which could support an order "striking down the Criminal Code" as sought;

(d) The plaintiff seeks both constitutional declarations as well as damages for alleged Canadian Charter of Rights and Freedoms infringements, which may not be sought together with the same proceeding;

(e) The plaintiff's claim for damages against the Attorney General of Canada is statute-barred as being out of time.

[5] The motions judge referred to the test for striking out a pleading for failure to disclose a reasonable cause of action set out by Wilson J. in Hunt v. Carey Canada Inc., 1990 90 (SCC), [1990] 2 S.C.R. 959 at p. 980, 74 D.L.R. (4th) 321:

[A]ssuming that the facts as stated in the statement of claim can be proved, is it "plain and obvious" that the plaintiff's statement of claim discloses no reasonable cause of action? . . . [I]f there is a chance that the plaintiff might succeed then the plaintiff should not be "driven from the judgment seat". Neither the length and complexity of the issues, the novelty of the cause of action, nor the potential for the defendant to present a strong defence should prevent the plaintiff from proceeding with his or her case.

[6] In our view while the motions judge correctly set out the appropriate test she did not correctly apply it. Accordingly, we would allow the appeal.

[7] The essence of the respondent's claim, as pleaded, is that the appellant is strictly liable for the breach of the respondent's Charter rights, and, is also liable in negligence for failing to discharge a duty of care to the respondent. Under both approaches what constitutes the appellant, Canada, a "contributor" to the Charter breach and what constitutes the failure of the appellant's duty of care is that s. 159 has been permitted by Canada to remain on the books notwithstanding a declaration of constitutional invalidity by the Court of Appeal in R. v. M. (C.) (1995), 1995 8924 (ON CA), 23 O.R. (3d) 629, 98 C.C.C. (3d) 481 (C.A.). To rephrase, the essence of the claim of the respondent is that by failing to repeal s. 159, the appellant is at once a contributor to the Charter breach and has also failed to discharge a duty of care to the respondent by providing a colour of right to police officers to enforce s. 159 of the Criminal Code which has been declared unconstitutional by the Court of Appeal. In our view, there is no cause of action against Canada either for Charter breach or in negligence because there was no duty in either case to legislate or to repeal.

[8] We are in complete agreement with the views of O'Driscoll J., on the application for leave to appeal in the instant case and, with the authorities cited by him for the proposition, that a legislative body cannot be held liable in tort for exercising or failing to exercise its legislative power. The substantial thrust of the authorities is captured in A.O. Farms Inc. v. Canada, 2000 17045 (FC), [2000] F.C.J. No. 1771 (T.D.) per Hugessen J. as follows:

The relationship between the government and the governed is not one of individual proximity. Any, perhaps most, government actions are likely to cause harm to some members of the public. That is why government is not an easy matter. Of course, the government owes a duty to the public but it is a duty owed to the public collectively and not individually. The remedy for those who think that duty has not been fulfilled is at the polls and not before the Courts.

A public authority must be free to make its choices with an eye only to their political consequences, not to the possibility of being sued for damages. That is the primary policy consideration underlying the Welbridge and Guimond decisions with which I started these Reasons and they are equally applicable here. Government, when it legislates, even wrongly, incompetently, stupidly, or misguidedly is not liable in damages. That, in essence, is what the plaintiff has alleged and it discloses, in my view, no cause of action for trial.

[9] (See also: Welbridge Holdings Ltd. v. Winnipeg (City) (1970), 1970 1 (SCC), [1971] 1 S.C.R. 957 at p. 968, 22 D.L.R. (3d) 470 per Laskin J. (for the court); Kwong v. Canada (1978), 1978 ALTASCAD 403, [1979] 2 W.W.R. 1 at p. 9, 96 D.L.R. (3d) 214 (Alta. C.A.); Swanson v. Canada (1991), 1991 8226 (FCA), 80 D.L.R. (4th) 741 at p. 747, [1992] 1 F.C. 408 per Morden J.A.; Ontario Association of Radiologists, [1999] O.J. No. 3027 (Div. Ct.)).

[10] The claim based on Charter breach, to the extent it is based on a failure to repeal s. 159 of the Criminal Code pursuant to a ruling by a provincial appellate court that the section is unconstitutional, is equally not justiciable and should have been struck by the motions judge. In the circumstances, the court cannot purport to impose a duty to repeal or amend legislation as this would constitute a fetter on the sovereignty of Parliament, which in our federal system of government has unfettered freedom to formulate, amend and repeal legislation. Moreover, the timing of any repeal must also be the prerogative of Canada. (See: Reference Re Canada Assistance Plan (British Columbia), 1991 74 (SCC), [1991] 2 S.C.R. 525 at pp. 559-60, 83 D.L.R. (4th) 297; House of Sgà nisim, Nisibitada v. Canada, [2000] B.C.J. No. 821 at para. 5 (C.A.); Turner v. Canada (1992), 93 O.L.R. (4th) 628 (F.C.A.) at pp. 629-30; Penikett v. R. (1987), 1987 145 (YK CA), 45 D.L.R. (4th) 108 at p. 120, 21 B.C.L.R. (2d) 1 (Y.T.C.A.), leave to appeal refused; Alberta v. Lefebvre, [1993] A.J. No. 94 (C.A.); Masse v. Ontario (Ministry of Community and Social Services) (1996), 1996 12491 (ON SCDC), 134 D.L.R. (4th) 20 at p. 41, 35 C.R.R. (2d) 44 (Ont. Div. Ct.), leave to appeal dismissed [1996] O.J. No. 1526 (C.A.), leave to appeal dismissed [1996] S.C.C.A. No. 373, 39 C.R.R. (2d) 375n; McKinney v. University of Guelph (1987), 1987 179 (ON CA), 63 O.R. (2d) 1, 46 D.L.R. (4th) 193 at p. 208 (C.A.), affirmed 1990 60 (SCC), [1990] 3 S.C.R. 229, 76 D.L.R. (4th) 545; New Brunswick Broadcasting Co. v. Donahoe, 1993 153 (SCC), [1993] 1 S.C.R. 319 at p. 389, 100 D.L.R. (4th) 212 per McLachlin J.; R. v. Wolf (1974), 1974 161 (SCC), 17 C.C.C. (2d) 425 at p. 426, 47 D.L.R. (3d) 741 (S.C.C.); Reference re Secession of Quebec, 1998 793 (SCC), [1998] 2 S.C.R. 217 at pp. 250-52, 161 D.L.R. (4th) 385.)

[11] We agree with the submission of counsel for Canada that the declaration sought in the action that s. 159 of the Criminal Code is unconstitutional is moot and redundant in view of the declaration that has already been made by the Ontario Court of Appeal that s. 159 of the Criminal Code is unconstitutional in R. v. M. (C.), supra. The action of the plaintiff is founded on the law as it exists in Ontario and the state of the law in other jurisdictions as to the constitutional status of s. 159 of the Criminal Code is therefore irrelevant. There is no need, in the context of an action in Ontario, for clarification of the constitutional status of s. 159 of the Criminal Code elsewhere in Canada. In Ontario, the unconstitutional status of s. 159 has been authoritatively established by the Court of Appeal in R. v. M. (C.), supra. The claim for declaration ought to have been struck.

[12] Finally, the motions judge did not in her reasons advert to the plaintiff's request for a declaration that the entire Criminal Code be struck down although the order of the motions judge dismissed the motion of Canada that the declaration sought in para. 1.b of the Amended Statement of Claim be struck out. We agree with the appellant that the facts as pleaded, taken as proven may permit a finding that s. 159 of the Criminal Code is inconsistent with the Charter but that these facts do not support a finding that the entire Criminal Code is inconsistent with the Charter.

[13] We further cannot agree with the respondent's submission that the continuing presence of s. 159 in the Criminal Code notwithstanding the decision of the Court of Appeal in R. v. M. (C.), supra, renders the entire Criminal Code suspect. This argument is untenable not only because many of the provisions of the Criminal Code have already withstood constitutional challenge (s. 7, (3.74), 7 (3.76), 9, 16(2), 63, 86(1), 89, 91, 100, 264.1(1) by way of brief but not totally inclusive example) but more particularly, because by its terms such a declaration appears inconsistent with s. 52(1) of the Constitution Act, 1982 which states that "any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect" (our emphasis).

[14] The respondent seeks to support the inclusion of the declaration on the authority of Language Rights under the Manitoba Act, 1870, 1985 33 (SCC), [1985] 1 S.C.R. 721, 19 D.L.R. (4th) 1. In that case, s. 23 of the Manitoba Act, 1870, had mandated that all of the laws of Manitoba be available in both official languages. However, the entire law of Manitoba was translated only in the English language and was ordered by the Supreme Court to be struck down as being of no force and effect until such time as the law was also available in the French language. In our view, the Manitoba Language Reference has no bearing on the matter before us. In that case, the entire law of Manitoba was declared unconstitutional because the entire law was translated only in English. There is no suggestion here that any of the sections of the Criminal Code save for s. 159 are unconstitutional. In our view, it is plain and obvious that the action for a declaration that the entire Criminal Code be struck down has no chance of succeeding and accordingly the motions judge ought not to have dismissed Canada's motion to strike s. 1.b of the pleadings.

[15] For these reasons, the appeal is allowed, the judgment of the motions judge is set aside and an order striking out paras. 1(a.1), 1(b), 1(c), 4, 58A through 58H, 58 through 65, 65.A, 65.B, 71, 72, 72.A, 72.B, 72.C of the plaintiff's Amended Statement of Claim dated October 6, 2000, and an order dismissing the plaintiff's action against the appellant will issue. Costs of the application for leave to appeal have been left to this court. Costs to the appellant fixed in the amount of $5,000 all inclusive, payable forthwith.

Appeal allowed.