Ontario Superior Court of Justice, Divisional Court
Court File No. 01-DV-000583
Date: 2002-07-8
Blair R.S.J., J. deP. Wright and Heeney JJ.
Counsel:
Edward R. Sojonky, Q.C., for appellant.
Emilio S. Binavince, for respondents.
[1] J. deP. Wright J. (dissenting):—In this case Canadian citizens come to a Canadian court with claims for damages for personal injuries and injury to property allegedly inflicted upon them by the Executive branch of the Canadian Government. The Executive asks us to strike out these claims, unheard, and deny these Canadians their "day in court". The Executive branch submits that these claims involve issues of "High Policy" which are non-judiciable, that is issues that will not be reviewed by the courts.
[2] The Motions Judge, Mr. Justice Sedgewick, did not agree. He refused to deny these citizens their access to the court. I agree with his conclusion!
[3] In my opinion, the only issue of "High Policy" involved in this case is whether Canada is a nation under the Rule of Law or whether there are times in our national life when the Executive may inflict damage upon citizens unfettered by considerations of domestic law, international law or solemn agreements between the Crown and other nations.
[4] As Lord Bingham said in his book The Business of Judging (Oxford University Press, 2000), p. 208: "[In Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 374] the House [of Lords] made clear that almost any exercise of public power, whatever the source of the power, is reviewable by the courts."
[5] In my view no issue of justiciability arises. This is a simple action for damages for loss of property and personal injury. In defence to this action, the Executive pleads s. 8 of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50.
[6] Section 8 continues Crown immunity for acts or omissions arising from the exercise of the Prerogative or powers granted by statute.
[7] In my view the Executive may not use the Royal Prerogative to commit the Canadian Forces to active service because a statute, The National Defence Act, R.S.C. 1985, c. N-5, specifically s. 31(1), occupies the ground and "[O]nce a statute occupies ground formerly occupied by the prerogative, the prerogative goes into abeyance. The Crown may no longer act under the prerogative, but must act under and subject to the conditions imposed by the statute" (Black v. Canada (Prime Minister) (2001), 2001 8537 (ON CA), 54 O.R. (3d) 215, 199 D.L.R. (4th) 228, para. 27).
[8] If the Executive purports to have acted in accordance with s. 31(1) of the National Defence Act, and relies upon this as a defence under s. 8 then the Executive must be subject to the conditions imposed by that Act and the plaintiff is entitled to call evidence to show that those conditions were not met in fact.
[9] Section 31(1) of the National Defence Act provides:
31(1) The Governor in Council may place the Canadian Forces or any component, unit or other element thereof or any officer or non-commissioned member thereof on active service anywhere in or beyond Canada at any time when it appears advisable to do so
(a) By reason of an emergency, for the defence of Canada; or
(b) In consequence of any action undertaken by Canada under the United Nations Charter, the North Atlantic Treaty or any other similar instrument for collective defence that may be entered into by Canada.
[10] Even if the Executive may use the Prerogative to commit the Canadian Forces to active service, this does not clothe the Executive with unfettered authority. "The prerogative is a branch of the common law because decisions of courts determine both its existence and its extent. In short, the Prerogative consists of 'the powers and privileges accorded by the common law to the Crown': Peter Hogg, Constitutional Law in Canada (Toronto: Carswell, 1995) (looseleaf) at 1.9" (Black v. Canada (Prime Minister) (2001), 2001 8537 (ON CA), 54 O.R. (3d) 215 at p. 224, para. 26).
[11] Since the Case of Proclamations and the Glorious Revolution the Executive's exercise of power, including it's use of the Prerogative, has been subject to the Rule of Law. It would shock the conscience today if the Executive could rely upon the Prerogative to justify actions or omissions that were illegal or contrary to our international commitments. Maintenance of the Honour of the Crown dictates that the courts ensure that the Executive not be allowed to rely upon such acts as a defence to its torts.
[12] In my view, in determining the propriety of the Executive's actions or omissions, the trial court might consider their legality not only under domestic law but also under international law. As well, it might consider their legitimacy in light of our international commitments.
[13] In coming to this conclusion I am well aware that International law and international commitments cannot found a cause of action under domestic law unless they have been written into domestic law. I am also aware that, by Statute, Parliament may legalize that which might otherwise be illegal under international law or contrary to our international commitments. No such Statute exists in this case.
[14] This is not a case where the Plaintiffs are relying upon international law or international commitments to found their cause of action; this is a case where the Plaintiffs are relying upon international law and our international commitments as a shield to prevent the Prerogative from being raised against them as a defence to actions or omissions which might otherwise be actionable. International law and our international commitments are the metewand against which the legitimacy of the purported use of the Prerogative might be measured by the court.
[15] In my view there is no justification for striking this action at this stage.
[16] Heeney J. (Blair R.S.J. concurring):—The plaintiffs in this action claim damages in tort and as a remedy under s. 24(1) of the Canadian Charter of Rights and Freedoms relating to the participation of Canada in the North Atlantic Treaty Organization ("NATO") missile and aerial bombardment of parts of the Federal Republic of Yugoslavia ("Yugoslavia") that occurred in the spring of 1999.
[17] The defendant brought a motion before Sedgwick J. to strike the Statement of Claim, prior to the filing of a Statement of Defence, on the basis that the claims were not justiciable and that the Statement of Claim did not disclose a reasonable cause of action. For reasons released January 10, 2001, the motions judge dismissed the motion. The motions judge did, however, find the Statement of Claim to be defective in that no material facts were pleaded as to how the individual plaintiffs were affected by the actions of the Canadian ministers and officials. He gave the plaintiffs 60 days to amend their Statement of Claim by pleading the material facts relating to each cause of action, linking the alleged damages suffered to the alleged wrongful acts.
[18] Leave to appeal that order was granted by Kealey J. on March 8, 2001, which brings the matter to this court. The Statement of Claim has not yet been amended, pending the results of this appeal.
[19] The appeal raises issues of Crown prerogative, justiciability and jurisdiction, as well as the interesting question as to whether the Crown can be held liable in tort for the property damage and injury it causes during the course of a military campaign.
The Statement of Claim
[20] The Statement of Claim alleges that Canada, along with other member states of NATO, participated in a missile and aerial bombardment campaign in Yugoslavia from March 24 to June 1, 1999, relating to internal civil strife in Kosovo. It alleges that this campaign was illegal and contrary to customary and conventional international law, including the UN Charter and the Kellogg-Briand Pact, 1928.
[21] The 57 plaintiffs are divided into two groups. The 50 Part A plaintiffs are citizens or permanent residents of Canada or landed immigrants. The remaining 7 Part B plaintiffs are Yugoslavian citizens and residents.
[22] The Part A plaintiffs seek general damages of $50,000,000 along with special damages and exemplary or punitive damages of $10,000,000. Those damages are claimed both in tort under s. 3(a) of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, and as a remedy under s. 24(1) of the Charter.
[23] The Part B plaintiffs seek general damages of $15,000,000, together with special damages and exemplary or punitive damages of $1,000,000. Their claim is framed in tort only.
[24] Both groups claim injunctive relief to restrain the defendant from participating in any military action against Yugoslavia, and from using public funds in so doing. This claim is now moot and is not being pursued, and should therefore be struck on that basis.
[25] Paragraph 5 of the Statement of Claim alleges that the plaintiffs have, during the relevant time, "sojourned" in Yugoslavia, and/or have family members and relatives living there, and/or have properties and business located there or business relationships with persons living there.
[26] Paragraph 11 alleges that NATO agreed upon a plan of military action against Yugoslavia, knowing that it was contrary to international law, and knowing that it would cause the injury or killing of innocent civilians, including the relatives of the plaintiffs, the destruction of their property and the interruption of their business relationships, as well as the destruction of the economy and essential services.
[27] Paragraph 13 alleges that Canada failed to take any concrete or effective steps for the evacuation or protection of Canadian citizens or their properties other than to issue a travel advisory warning.
[28] Paragraph 14 alleges that NATO, with the direct and active participation and encouragement of Canada, initiated missile and aerial bombardment of Yugoslavia, resulting in the damage and injury described in para. 11 above. The dates and locations of the bombing runs, and a general description of the damage caused, are set out in Schedule 2 to the Statement of Claim. However, as the motions judge correctly noted, there is nothing in the Statement of Claim that alleges any specific personal injury or property damage having been sustained by any individual plaintiff, nor is there any link to such loss to any specific act of Canadian ministers, officials and agents, as distinct from the ministers, officials and agents of other countries participating in the military action.
[29] In para. 15, the Part A plaintiffs allege that the defendant breached their s. 7 Charter rights by illegally bombing Yugoslavia and thereby causing injury to the physical well-being, life and security of the persons of those plaintiffs. They further claim in para. 16 that their s. 15 right to equality was infringed, because the actions of Canada amounted to a preference for the Albanian community in Kosovo and a discrimination against the plaintiffs and their relatives on the basis of national or ethnic origin.
[30] In para. 17, both groups of plaintiffs allege that the actions of Canada constitute the torts of (i) assault and battery, (ii) intimidation, (iii) intentional infliction of nervous shock, (iv) negligence, and (v) interference with their contractual and business interests. It is alleged that all of these claims come within s. 3(a) of the Crown
Liability and Proceedings Act.
[31] In the balance of the Statement of Claim, both groups of plaintiffs also allege that NATO used weapons with depleted uranium and cluster bombs, and destroyed factories and storage facilities causing the release of environmentally toxic materials. It is alleged that these actions were illegal, and constituted a breach of ss. 7 and 15 of the Charter as well as a tort coming within s. 3(a) of the Crown Liability and Proceedings Act. The precise tort that is alleged to have been committed in this regard is not specified.
The Issues
[32] The following issues were raised for determination:
Is the executive action of the Canadian government, in the exercise of Crown prerogative, non-justiciable?
Do the alleged tort claims disclose a reasonable cause of action such that they should be allowed to proceed?
Is the executive action of the government in deciding to participate in the NATO military action reviewable under the Charter?
If it is, is the Charter engaged?
Does this court have jurisdiction to consider alleged breaches of international law?
[33] The motions judge correctly stated the test to be applied in dealing with these issues in the context of a motion to strike. Taking the material facts as proven, do they disclose a reasonable cause of action, that is, one "with some chance of success", or is it "plain and obvious that the action cannot succeed"?: Operation Dismantle Inc. v. Canada (1985), 1985 74 (SCC), 18 D.L.R. (4th) 481 (S.C.C.) at p. 515 (per Wilson J.), and authorities cited therein. The court is obliged to read the Statement of Claim as generously as possible, and to accommodate drafting deficiencies. Novelty or complexity of a cause of action ought not to weigh against a plaintiff: Operation Dismantle, supra, at p. 488 (per Dickson J.). Nor should such a motion be allowed on a question of law which has not been fully settled in the decided cases: Nash v. Ontario (1995), 1995 2934 (ON CA), 27 O.R. (3d) 1 (C.A.) at p. 6.
[34] The motions judge relied primarily on Operation Dismantle Inc. v. Canada, supra, in concluding that the Plaintiffs' claims are justiciable, and that the Statement of Claim (subject to some necessary amendments) discloses a reasonable cause of action. The focus of enquiry on this appeal is whether he erred in law in arriving at that conclusion.
Issue 1: Justiciability
[35] Mr. Sojonky, for the defendant, submits that Canada's decision to participate in the NATO bombing campaign of Yugoslavia was founded in the Crown's prerogative powers in the field of foreign affairs and in control over its armed forces. Mr. Binavince concedes that the decision in question was, indeed, founded in the Crown's prerogative.
[36] Since the exercise of such power involved policy and political considerations that are not suitable for review by the courts, Mr. Sojonky submits, the plaintiffs' claims (other than the Charter claims) are not justiciable.
[37] The nature of the Crown prerogative was discussed by Laskin J.A. in Black v. Canada (Prime Minister) (2001), 2001 8537 (ON CA), 54 O.R. (3d) 215, 199 D.L.R. (4th) 228 (C.A.). It consists of "the powers and privileges accorded by the common law to the Crown": para. 26, quoting Peter Hogg, Constitutional Law in Canada, (Toronto: Carswell 1995) (looseleaf). The Crown prerogative can be limited or displaced by statute, and once that occurs the prerogative goes into abeyance: para. 27.
[38] Laskin J.A. notes, in para. 45, that the power of the court to judicially review the prerogative was very limited until quite recently:
Under the law that existed at least into the 1960s, the court's power to judicially review the prerogative was very limited. The court could determine whether a prerogative power existed and, if so, what its scope was, and whether it had been superseded by statute. However, once a court established the existence and scope of a prerogative power, it could not review how that power was exercised .. . The appropriateness or adequacy of the grounds for its exercise, even whether the procedures used were fair, were not reviewable. The courts insisted that the source of the power — the prerogative — precluded judicial scrutiny of its exercise. The underlying rationale for this narrow review of the prerogative was that exercises of prerogative power ordinarily raised questions courts were not qualified or competent to answer.
[39] However, Laskin J.A. observed that this narrow view had to be modified due to the advent of the Charter. Operation Dismantle Inc. v. Canada, supra, established that "if an individual claims that the exercise of a prerogative power violates that individual's Charter rights, the court has a duty to decide the claim": para. 46.
[40] At para. 47, he noted that the expanding role of judicial review was not confined to Charter cases:
Apart from the Charter, the expanding scope of judicial review and of Crown liability make it no longer tenable to hold that the exercise of a prerogative power is insulated from judicial review merely because it is a prerogative and not a statutory power. The preferable approach is that adopted by the House of Lords in the Civil Service Unions case, supra [Council of Civil Service Unions v. Minister for the Civil Service, [1984] 3 All E.R. 935 (H.L.)]. There, the House of Lords emphasized that the controlling consideration in determining whether the exercise of a prerogative power is judicially reviewable is its subject matter, not its source. If, in the words of Lord Roskill, the subject matter of the prerogative power is "amenable to the judicial process", it is reviewable; if not, it is not reviewable. Lord Roskill provided content to this subject matter test of reviewability by explaining that the exercise of the prerogative will be amenable to the judicial process if it affects the rights of individuals.
[41] I digress momentarily to observe that these comments of Laskin J.A, answer a question that was touched on during argument, but which was not pursued to any degree. While argument of the appeal proceeded on the assumption that the Crown's authority for deploying the armed forces was founded in the Crown prerogative, it is possible that that authority instead flows from s. 31 of the National Defence Act, R.S.C 1985, c. N-5. Nonetheless, it is the subject matter, not the source of power, that determines reviewability, and the same result might well obtain whether the Crown's power flowed from statute or from the prerogative. It is unnecessary to decide this issue, since it was neither pleaded nor argued.
[42] To return to the point under discussion, Laskin J.A. provided a connection between the subject matter test and the issue currently under discussion, that of justiciability. At para. 50 he states the following:
At the core of the subject matter test is the notion of justiciability. The notion of justiciability is concerned with the appropriateness of courts deciding a particular issue, or instead deferring to other decision-making institutions like Parliament. . . . Only those exercises of the prerogative that are justiciable are reviewable. The court must decide "whether the question is purely political in nature and should, therefore, be determined in another forum or whether it has a sufficient legal component to warrant the intervention of the judicial branch": Reference re Canada Assistance Plan (British Columbia), 1991 74 (SCC), [1991] 2 S.C.R. 525 at p. 545, 58 B.C.L.R.(2d) 1.
[43] Laskin J.A. determined that the exercise of the prerogative will be justiciable, or amenable to the judicial process, "if its subject matter affects the rights or legitimate expectations of an individual": para. 51. He went on to consider the subject matter of the case at hand. Mr. Black wished to be appointed as a peer in the United Kingdom, which would allow him to sit in the House of Lords. He alleged in his Statement of Claim that the Prime Minister intervened with the Queen to oppose his appointment. He sued the Prime Minister for abuse of power, misfeasance in public office and negligence.
[44] Applying the subject matter test to that fact situation, Laskin J.A. summarized the central issue as follows:
Thus, the basic question in this case is whether the Prime Minister's exercise of the honours prerogative affected a right or legitimate expectation enjoyed by Mr. Black and is therefore judicially reviewable. To put this question in context, I will briefly discuss prerogative powers that lie at the opposite ends of the spectrum of judicial reviewability. At one end of the spectrum lie executive decisions to sign a treaty or to declare war. These are matters of "high policy": R. v. Secretary of State for Foreign & Commonwealth Affairs, Ex. p Everett, [1989] 1 All E.R. 655 at p. 660, [1989] Q.B. 811, per Taylor L.J. Where matters of high policy are concerned, public policy and public interest considerations far outweigh the rights of individuals or their legitimate expectations. In my view, apart from Charter claims, these decisions are not judicially reviewable. [Emphasis added.]
[45] The highlighted words in the passage just quoted are particularly germane to this appeal. Laskin J.A. makes it clear that matters of high policy, such as a declaration of war, are not judicially reviewable, apart from Charter claims.
[46] It is, in my view, beyond doubt that an executive decision to participate in the bombing of Yugoslavia is a matter of "high policy". It is closely analogous to a declaration of war. The conduct that is alleged to be wrongful in the Statement of Claim is that of Mr. Lloyd Axworthy, the then Minister of Foreign Affairs and International Trade, and Mr. Arthur C. Eggleton, the then Minister of National Defence, and their respective departments, for having made the decision to participate in the bombing. It was a pure policy decision made at the highest levels of government, dictated by purely political factors.
[47] The case at bar provides a good illustration as to why a policy decision is not amenable to the court process. The plaintiffs allege that the actions of the Crown were tortious. Applying Fleming's definition of a tort (Fleming, The Law of Torts, 9th ed. (Sydney: Law Book Co., 1998) p. 1, the plaintiffs are thereby alleging that the Crown committed a civil wrong, which the law will redress by an award of damages. By what yardstick could a court determine whether the Crown's decision to bomb was wrongful? How could a judge weigh competing political considerations to determine whether NATO's concern for the plight of the Kosovo Albanians constituted sufficient justification for the actions it took?
[48] These tort claims are qualitatively different from the Charter claims dealt with by Wilson J. in Operation Dismantle (supra). In that case, the plaintiffs sought an injunction to prevent the federal government from permitting the United States to test cruise missiles in Canada. It was alleged that such testing increased the prospects for nuclear war, putting in peril the life and security of the plaintiffs, such that their s. 7 Charter rights were infringed.
[49] At pp. 502-3, Wilson J. addressed the issue of justiciability as it relates to the deployment of the armed forces. She dealt with the reasons of Lord Devlin in Chandler v. Director of Public Prosecutions, [1962] 3 All E.R. 142 (H.L.), and noted that he agreed with Lord Parker C.J. in the court below that "the manner of 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". However, she drew a distinction between determining whether a government's defence policy is sound, and whether it violated the appellant's rights under s. 7 of the Charter. She concluded the following, at p. 504:
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 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.
[50] The Charter is the supreme law of Canada, to which all governmental action must conform, and it is appropriate for a court to determine whether any particular governmental action violated the constitutionally guaranteed rights of a citizen. The law of torts, however, has no such lofty status. If the court is to ask itself whether the Crown's action was wrongful, it must necessarily "second guess" the government in the political cost/benefit analysis that led to the decision to bomb. A court is simply not equipped to do so.
[51] To return to Black v. Canada, Laskin J.A. was clear that, apart from Charter claims, matters of high policy are not justiciable. Since the governmental action at issue in the Statement of Claim are decisions of high policy, I conclude that the tort claims are not justiciable. The Charter claims are justiciable, although the question remains whether the Charter is engaged on the facts alleged in the Statement of Claim.
Issue 2: The Cause of Action in Tort
[52] If I am wrong, and the tort claims are justiciable, it is productive to consider whether the Statement of Claim discloses any reasonable cause of action in tort. As will be seen below, the question of Crown immunity from tort liability for actions of this nature now seems to overlap the question of justiciability just discussed.
[53] If a Canadian citizen travelled to Yugoslavia, planted a bomb under someone's house and blew it up, causing injury to the occupant, there is little doubt that the occupant could come to Canada and sue the perpetrator for the personal injury and property damage he sustained. Does it make a difference if that same house is blown up not by a Canadian citizen, but by the Government of Canada, by means of a bomb dropped by a Canadian aircraft, pursuant to an executive decision by the Government of Canada to participate in NATO bombing against Yugoslavia?
[54] The answer, provided by Mr. Justice Cory in Just v. British Columbia, 1989 16 (SCC), [1989] 2 S.C.R. 1228, 64 D.L.R. (4th) 689, is that it does, indeed, make a difference. At p. 1239 of that decision, Cory J. makes it clear that "the Crown is not a person, and must be free to govern and make true policy decisions without becoming subject to tort liability as a result of those decisions". This does not mean that the Crown has blanket immunity from tort liability. Rather, the Crown will be immune from tort liability arising out of true policy decisions, but may well be held liable for losses that flow from "operational" decisions. He continues at p. 1240 with the following:
The need for distinguishing between a governmental policy decision and its operational implementation is thus clear. True policy decisions should be exempt from tortious claims so that governments are not restricted in making decisions based upon social, political or economic factors. However, the implementation of those decisions may well be subject to claims in tort.
[55] He quotes with approval, at p. 1242, from the decision of Mason J. of the Australian High Court in Sutherland Shire Council v. Heyman (1985), 1988 ABCA 234, 60 A.L.R. 1:
The distinction between policy and operational factors is not easy to formulate, but the dividing line between them will be observed if we recognize that a public authority is under no duty of care in relation to decisions which involve or are dictated by financial, economic, social or political factors or constraints. Thus budgetary allocations and the constraints which they entail in terms of allocation of resources cannot be made the subject of a duty of care. But it may be otherwise when the courts are called upon to apply a standard of care to action or inaction that is merely the product of administrative direction, expert or professional opinion, technical standards or general standards of reasonableness. [Emphasis added by Cory J.]
[56] Cory J. then added the following comments, at p. 1242:
The duty of care should apply to a public authority unless there is a valid basis for its exclusion. A true policy decision undertaken by a government agency constitutes such a valid basis for exclusion. What constitutes a policy decision may vary infinitely and may be made at different levels although usually at a high level.
[57] Allen M. Linden, in Canadian Tort Law, 7th ed. (Markham, Ont.: Butterworths 2001), offers the following helpful analysis of Just v. British Columbia at p. 621:
Another way of looking at this issue is to say that a government must be entitled to govern free from the restraints of tortious liability. It cannot be a tort for a government to govern. However, when a government is supplying services, that is, doing things for its people other than governing, it should be subject to ordinary negligence principles. Since, in the words of Mr. Justice Cory "the Crown ... must be free to govern", an immunity is necessary, but it must be limited only to those functions of government that properly can be considered to be "governing" and not extended to the other tasks of government that might be styled "servicing". In other words, governing is normally concerned with large issues, macro decisions, if you will, not routine items, that is, micro decisions.
[58] In the recent decision of Cooper v. Hobart (2001), 2001 SCC 79, 206 D.L.R. (4th) 193 (S.C.C.) at p. 206, McLaughlin C.J. and Major J. indicate that the policy reason behind the exclusion of tort liability for policy decisions is that it is inappropriate for courts to second-guess elected legislators on policy matters:
In our view, the exclusion of liability for policy decisions is properly regarded as an application of the second stage of the Anns test. The exclusion does not relate to the relationship between the parties. Apart from the legal characterization of the government duty as a matter of policy, plaintiffs can and do recover. The exclusion of liability is better viewed as an immunity imposed because of considerations outside the relationship for policy reasons — more precisely, because it is inappropriate for courts to second-guess elected legislators on policy matters.
[59] We thus return full circle to the issue of justiciability. It can be said that matters of pure policy are not amenable to the judicial process, and are therefore not justiciable. It can also be said that the Crown is immune from tort liability arising from decisions of pure policy, for essentially the same reason.
[60] I have already concluded that the allegedly wrongful acts of the Crown are matters of pure policy. This case involves "macro" decisions at the highest level of government, not "micro" activity at the operational level.
[61] Accordingly, I conclude that this case falls within the class of cases identified by Cory J. in Just v. British Columbia where the Government of Canada is immune from tort liability flowing from the policy decision to participate in NATO bombing. It follows that there is no reasonable cause of action against the Crown in tort.
[62] While I have reached this conclusion based on the general principles that govern Crown liability in tort, there is authority dealing with the specific situation of military activity by a government that leads to the same conclusion. In Foreign Affairs in English Courts (Oxford: Clarendon Press, 1986), F.A. Mann refers to a discussion by Sir William Wade in Administrative Law, 5th ed. (Oxford: Clarendon Press, 1982), p. 718, in the following passage (at p. 188):
But then Sir William asks: "If the house of a British subject living in Egypt had been damaged by British bombs in the operations against the Suez Canal in 1956, would its owner really have been able to recover damages in an English court"? One can ask the same question in regard to an inhabitant of the Falkland Islands. The answer in both cases is, of course, in the negative ...
[63] In Mulcahy v. Ministry of Defence, [1996] Q.B. 732 (C.A.), the plaintiff was a soldier serving with the forces of the United Kingdom in the Gulf War. He was part of a team manning a howitzer. While he was retrieving a can of water from the area in front of the gun, he alleged that it was negligently fired, knocking him off his feet and causing the losses for which he sought compensation from the Ministry of Defence. The government brought a motion to strike the Statement of Claim as disclosing no cause of action.
[64] The court considered whether any duty of care is owed by one soldier to another when engaging in battle conditions, and in so doing considered the broader question whether a duty of care was owed to anyone at all in such a situation. Reliance was placed on Shaw Savill and Albion Co. Ltd. v. The Commonwealth (1940), 66 C.L.R. 344 (High Court of Australia). At p. 361 of that decision, Dixon J. said:
It could hardly be maintained that during an actual engagement with the enemy or a pursuit of any of his ships the navigating officer of a King's ship of war was under a common law duty of care to avoid harm to such non-combatant ships as might appear in the theatre of operations. It cannot be enough to say that the conflict or pursuit is a circumstance affecting the reasonableness of the officer's conduct as a discharge of the duty of care, though the duty itself persists. To adopt such a view would mean that whether the combat be by sea, land or air our men go into action accompanied by the law of civil negligence, warning them to be mindful of the person and property of civilians. It would mean that the courts could be called upon to say whether the soldier on the field of battle or the sailor fighting on his ship might reasonably have been more careful to avoid causing civil loss or damage. No one can imagine a court undertaking the trial of such an issue, either during or after a war. To concede that any civil liability can rest upon a member of the armed forces for supposedly negligent acts or omissions in the course on an actual engagement with the enemy is opposed alike to reason and to policy . . . But a real distinction does exist between actual operations against the enemy and other activities of the combatant services in time of war. For instance, a warship proceeding to her anchorage or manoeuvring among other ships in a harbour, or acting as a patrol or even as a convoy must be navigated with due regard to the safety of other shipping and no reason is apparent for treating her officers as under no civil duty of care, remembering always that the standard of care is that which is reasonable in the circumstances.... It may not be easy under conditions of modern warfare to say in a given case upon which side of the line it falls. But, when, in an action of negligence against the Crown or a member of the armed forces of the Crown, it is made to appear to the court that the matters complained of formed part of, or an incident in, active naval or military operations against the enemy, then in my opinion the action must fail on the ground that, while in the course of actually operating against the enemy, the forces of the Crown are under no duty of care to avoid causing loss or damage to private individuals.
[65] Starke J. in his concurring judgment said this, at p. 356:
[T]here is no doubt that executive government and its officers must conduct operations of war, whether naval, military or in the air, without the control or interference of the courts of law. Acts done in the course of such operations are not justiciable and the courts of law cannot take cognizance of them.
[66] The court in Mulcahy also extensively reviewed the decision of the House of Lords in Burma Oil Company v. Lord Advocate, [1964] 2 All E.R. 348. In that case, the installations belonging to the appellant were destroyed by the British army to prevent them from falling into enemy hands during the Second World War. While holding that demolitions that take place otherwise than in the course of actual military operations are compensable, the House of Lords recognized an exception for "battle damage". Lord Reid said, at p. 360:
Such damage must include both accidental and deliberate damage done in the course of fighting operations. It cannot matter whether the damage was unintentional or done by our artillery or aircraft to dislodge the enemy or by the enemy to dislodge our troops; and the same must apply to destruction of a building or a bridge before the enemy actually capture it. Moreover, it would be absurd if the right to compensation for such a building or bridge depended on how near the enemy were when it was destroyed.
[67] Lord Pearce adopted a similar approach, and said the following, at p. 394:
In respect of a house that has the misfortune to be in the centre of a battle field and is inevitably demolished by the Crown's artillery, it is clear, on the principles which have been almost unanimously set out, that the subject can have no claim. In respect of a house that is demolished by the Crown with wise forethought, long before any battle, to provide a fort or a clear field of fire in case of threatened invasion I think that it is equally clear that the subject should obtain compensation.
[68] Based on these authorities, Neill L.J., speaking for the court in Mulcahy, held that there was no duty of care owed in the battle conditions presented by the Gulf War. Accordingly, the Statement of Claim was struck out.
[69] In his concurring judgment, Sir Iain Glidewell says the following, at p. 750:
Like Neill L.J., it is in my judgement clear that public policy does require that, when two or more members of the armed forces of the Crown are engaged in the course of hostilities, one is under no duty of care in tort to another . . . If during the course of hostilities no duty of care is owed by a member of the armed forces to civilians or their property, it must be even more apparent that no such duty is owed to another member of the armed forces.
[70] The Supreme Court of Canada had occasion to consider a somewhat similar issue in Canada v. Anthony, 1946 32 (SCC), [1946] S.C.R. 569, [1946] 3 D.L.R. 577. That case arose during the Second World War, although not in battle conditions. A soldier, while in transit from one base to another, fired a tracer bullet into the plaintiff's barn as he passed by, causing it to burn to the ground. Since the soldier was acting outside the scope of his employment, the Crown was not vicariously liable. However, the question remained whether the officers in charge breached a private duty of care in failing to stop the firing. In holding that there was no breach of a private duty, and hence no liability on the Crown, Rand J. raised considerations of justiciability, without actually using the word. He said the following, at p. 574:
The military law is a body of rules by which, among other objects, the possibilities of illegal and injurious action, whether by means of dangerous weapons entrusted to soldiers or otherwise, may be restricted; but it is a proposition which I am unable to accept that persons bearing that authority must have regard to private interests before they may safely abstain, in any situation, from exercising it. It would introduce fundamental questions of conflicting responsibilities, of excuses for failure to act and of legal causation; and so far as counsel have been able to discover, in generations of experience with military activities and personnel, it has never before been suggested. We enter here the field of executive action and the hierarchy of command. In this case, the sergeant's excuse was that he had to get on with the military movement in which he was engaged. It was in a time of war. Are the courts to sit in judgment on decisions of that sort in a conflict between public and private interests?
[71] In the case at bar, the property damage and personal injury that is alleged to have been suffered by the plaintiffs occurred during the course of military hostilities being carried out by Canada and the other member nations of NATO against Yugoslavia. The authorities referred to above make it clear that, in such circumstances, the Crown and their agents are under no duty of care to avoid causing injury or damage to private individuals. There is, therefore, no reasonable cause of action against the Crown in tort, and the tort claims must be struck out.
[72] Before leaving this issue, I should note that Mr. Sojonky also relied on s. 8 of the Crown Liability and Proceedings Act and suggested that it provides immunity from tortious liability for military activity. Hogg and Monahan, in Liability of the Crown, 3rd ed. (Toronto: Carswell, 2000), express the impact of s. 8 in the following manner [p. 181]:
Military activity is uniquely governmental — and often dangerous. No doubt, this is why the federal Crown Liability and Proceedings Act, by section 8, exempts the Crown from tortious liability:
"... in respect of anything done or omitted in the exercise of any power or authority exercisable by the Crown, whether in time of peace or of war, for the purpose of the defence of Canada or of training, or maintaining the efficiency of, the Canadian Forces."
This provision is a sweeping immunity for military activity, drawing no distinction between war and peace; between combat, training and discipline; or between injured civilians and injured members of the forces.
[73] While the immunity provided by s. 8 is indeed sweeping, it might not cover the fact situation presented by this case. On the facts as pleaded, the actions of Canada against Yugoslavia arguably had nothing to do with the "defence of Canada", although one could say that governments do not participate in wars unless it is necessary, in some indirect way at least, to protect Canada's position in the long run (such as fulfilling our obligations to NATO and remaining under its defensive umbrella). Canada was not in any immediate peril at any time, and the actions were not defensive, but were rather a proactive attempt to influence the policy of the Yugoslavian government concerning Kosovo Albanians. Equally, the actions appear to have had nothing to do with "training, or maintaining the efficiency of the Canadian Forces". On a plain reading of s. 8, it may not cover the fact situation before the court.
[74] However, in view of the conclusions I have already reached, it is not necessary to review the jurisprudence that has evolved concerning s. 8 and arrive at a considered decision as to the applicability of that section.
Issue 3: Is the decision to participate in the bombing reviewable under the Charter?
[75] This issue has already been canvassed in our consideration of issue 1, and the answer is clearly yes. Operation Dismantle makes it clear that, where a plaintiff is alleging that his Charter rights have been violated, the court is both competent and obliged to consider the matter.
[76] Mr. Sojonky argued that the Charter did not apply because the allegedly wrongful acts occurred outside the territorial limits of Canada. However, R. v. Cook (1998), 1998 802 (SCC), 164 D.L.R. (4th) 1 (S.C.C.), held that a Canadian citizen who was questioned by Canadian officials abroad was still entitled to the protection of the Charter, so long as the application of the Charter would not interfere with the sovereign authority of the foreign state. See also the comments of Lamer C.J. in R. v. Harrer, 1995 70 (SCC), [1995] 3 S.C.R. 562, 128 D.L.R. (4th) 98, at paras. 10 and 11. Furthermore, insofar as the allegedly wrongful conduct was the decision to bomb in the first place, that act presumably occurred in Ottawa. It is, at the very least, a triable issue as to whether the Part A plaintiffs, who were present in Yugoslavia and were allegedly affected by the actions of Canadian officials there, might claim the protection of the Charter.
Issue 4: Is the Charter engaged?
[77] The Part A plaintiffs allege that their Charter rights have been violated in two respects. First, to the extent that any of them were injured by Canadian bombing while sojourning in Yugoslavia they claim that their s. 7 right to life, liberty and security of the person has been violated. Second, they claim that the actions of NATO amounted to a preference of the interests of the Kosovo Albanians, and a corresponding discrimination against the plaintiffs, such that their s. 15 equality rights have been breached.
Section 7
[78] I will address the s. 7 claim first.
[79] The plaintiffs in Operation Dismantle similarly alleged that their s. 7 rights had been violated, by reason of the increased prospects for nuclear war allegedly resulting from permitting cruise missile testing to occur in Canada. The majority decision of Dickson J. dismissed the case because it was not possible to prove that permitting such testing would result in an increased risk of nuclear war. Section 7 could not be read as imposing a duty on the government to refrain from acts which might lead to a deprivation of life or liberty. Such a duty only arose where it could be proven to a high degree of probability that the harm would, in fact, occur.
[80] Wilson J., concurring in the result, did not base her decision on that approach. Rather, having decided that the actions of the Cabinet were open to judicial scrutiny under the Charter, and assuming the facts alleged to be proven, she directly addressed the question whether those facts could constitute a violation of s. 7. She observed at p. 516, that "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." She continued, at p. 517, as follows:
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.
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
[81] She then addresses, at p. 518, the specific case of state-to-state governmental action in the field of foreign affairs and military activity, which was at issue in that case as well as in the case at bar:
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.
I agree with LeDain 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 a ready 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.
[82] In the result, Wilson J. held that, accepting the allegations of an increased risk of nuclear war as having been proven, this could not constitute a violation of s. 7, so as to give rise to a cause of action under s. 24(1). Accordingly, the Statement of Claim was struck out.
[83] In my view, the governmental action which allegedly violates the s. 7 rights of the Part A plaintiffs in the case at bar is indistinguishable from the type of governmental action discussed by Wilson J. in the passages quoted above. It involves state-to-state activity, not activity directed at any individual members of the political community of Canada. While it might incidentally subject some of its citizens, notably those who choose to sojourn in Yugoslavia, to an increased risk of death or injury, such activity was never intended to be caught by s. 7. A decision to participate n a bombing campaign is closely analogous to a declaration of war, and the latter cannot, in the opinion of Wilson J., constitute a violation of the s. 7 rights of those affected. Neither, therefore can the executive decision under consideration here.
[84] To hold otherwise would permit any citizen to, in effect, hijack Canadian foreign policy. In any case where Canadian military intervention was contemplated, a citizen could choose to place himself in the target zone, and then complain that the intended actions of the government would vitiate his right to life and security.
[85] I conclude that the actions of the government, as outlined in the Statement of Claim and on the assumption that those allegations are true, cannot constitute a violation of s. 7 of the Charter. Accordingly, those claims must be struck out as disclosing no reasonable cause of action.
Section 15
[86] This leaves only the alleged breach of the s. 15 equality rights of the Part A plaintiffs. Similar comments apply. This is state-to-state action, not action directed at any individual protected by the Charter, giving rise to the "strong presumption" that the Charter has no application.
[87] It is also difficult to see how this fact situation could engage s. 15. That section is not a general guarantee of equality. It does not provide for equality between individuals or groups within society in a general or abstract sense, and does not impose on individuals or groups an obligation to accord equal treatment to others. It is concerned with the application of the law. It embodies the ideal that a law expressed to bind all should not, because of irrelevant personal differences, have a more burdensome or less beneficial impact on one than another: Andrews v. Law Society of British Columbia (1989), 1989 2 (SCC), 56 D.L.R. (4th) 1, [1989] 1 S.C.R. 143 (S.C.C.).
[88] The facts as pleaded do not allege the unequal application of the law based on personal differences. Considerations of discrimination simply do not arise.
[89] Even if one assumes that s. 15 could apply to governmental action of this kind, the most that could be said is that the Canadian government participated in the NATO bombing so as to exert pressure on the Yugoslavian government to alter their position toward the Kosovo Albanian community. If this amounts to a preference for one group over another, and a corresponding discrimination against the less favoured group, then it amounts to a preference of an Albanian over a Serb, neither of whom falls under the umbrella of the Charter. There are no facts pleaded to suggest that a Canadian of Serbian or Albanian or Yugoslavian national or ethnic origin is being treated differently than any other Canadian by reason of those personal characteristics.
[90] In my view, the facts as pleaded cannot constitute a breach of the s. 15 rights of the Part A plaintiffs. It follows that there is no reasonable cause of action in this regard, and this claim must be struck out.
Issue 5: Jurisdiction to consider breaches of international law
[91] In light of the decisions I have reached on the preceding issues, it, is unnecessary, to deal with this issue.
Disposition
[92] For the forgoing reasons, I would allow the appeal with costs here and below, and strike out the Statement of Claim in its entirety.
[93] Appeal allowed.