[2017] 3 F.C.R. D-5
Constitutional Law
Charter of Rights
Motions to strike statements of claim filed in two proceedings in which plaintiffs bringing respective claims in form of proposed class actions — Each statement of claim asserting cause of action alleging breach of Canadian Charter of Rights and Freedoms seeking damages pursuant to s. 24(1) thereof — Proposed classes of claimants federal inmates whose rights to accelerated parole review removed by retrospective application of Abolition of Early Parole Act, S.C. 2011, c. 11 — Parliament’s attempt to apply legislative change retrospectively ultimately held to be unconstitutional because in case of applicant Whaling, violating Charter, s. 11(h) rights of three already sentenced inmates not to be punished again for same offence (Canada (Attorney General) v. Whaling, 2014 SCC 20, [2014] 1 S.C.R. 392) — In case of applicant Liang, Charter violation found to arise under s. 11(i) which extends to guilty person benefit of lesser punishment in face of legislative change occurring between dates of commission of offence, sentencing (Liang v. Canada (Attorney General), 2014 BCCA 190, 355 BCAC 238) — Notwithstanding prior determination of Charter breaches, defendant moving to strike actions on basis statements of claim disclosing no reasonable cause of action; arguing statements insufficient to overcome Parliamentary immunity for consequences flowing from passage of unconstitutional legislation — Defendant also arguing actions statute barred, should be struck based on estoppel, abuse of process — Plaintiffs filing amended statements of claim offering further support for proposed causes of action — Whether motion to strike should be allowed; whether actions statute barred; whether actions should be struck on basis of estoppel, abuse of process — Plaintiffs relying on general references in Mackin v New Brunswick, 2002 SCC 13, [2002] 1 S.C.R. 405 to argue that Court should, at this early stage, entertain cause of action based on practical political realities, ignore de jure separation of responsibilities — Henry v. British Columbia (Attorney General) 2015 SCC 24, [2015] 2 S.C.R. 214 establishing need for adequate pleadings in context of claim to Charter damages arising from alleged prosecutorial misconduct, to particularize facts that, if proven, would be sufficient to establish state conduct meeting required threshold of gravity — Failure to do so fatal to claim — While plaintiffs’ allegations of recklessness, bad faith, abuse of power appearing unobjectionable, addressing issue of Parliamentary immunity, allegations insufficient by themselves to defeat motion to strike — Conclusory pronouncements must be supported by assertion of material facts but present pleadings coming up short thereon — Plaintiffs maintaining that requisite material facts found in reference to “proposing, pursuing, passing bill into law which [defendant] knew or ought to have known to be unconstitutional and would infringe the rights of those to whom it applied, and did so motivated by political self-interest” — This statement unsupported conclusion, insufficient to inform defendant of case to be met — Amended plea factually unsupported allegation that defendant passing into law statutory amendment it knew or ought to have known to be unconstitutional — Pleading missing assertion of material fact tending to establish liability threshold necessary to obtain Charter damages for passage of unconstitutional legislation — No bright-line test existing for grounding liability in cases such as present matter emerging from Mackin — What does emerge from majority in Mackin is uncertainty about where boundaries of limited immunity for legislative action beginning, ending — Discussion of principles of justiciability typically guiding any judicial intrusion into business of Parliament also lacking from Mackin — In context of search of Parliamentary intent in passing legislation, questions arising that not readily amenable to or appropriate for judicial determination, not justiciable — Court examining possible approaches in determining availability of Charter damages — Protection of constitutional rights, need for effective government constituting competing interests in determining availability of compensation when Charter rights’ breached — Division in thinking at Supreme Court of Canada on availability of Charter damages in face of common law, statutory immunities protecting state actors profound — Plaintiffs’ oral argument for blending of executive, legislative functions having no prospect for success since legislation subject of present action proposed, passed into law by minority government with support of members of opposition; also, nothing in proposed statements of claim articulating plaintiffs’ newly advanced theory of liability — Thus, statements of claim presently constituted failing to meet legal requirements set out in Henry — Therefore, struck out in entirety but leave to amend statements granted — Regarding limitations defence, causes of action plaintiffs seeking to advance not arising in province where any particular class member held at time of passage of impugned legislation but arising otherwise than in province as contemplated by Federal Courts Act, R.S.C., 1985, c. F-7, s. 39(2); thus subject to six-year limitation period — Because proposed class actions brought in response to Parliamentary action, pursuant to unconstitutional federal legislation, for loss of right guaranteed by federal legislation, claims can only be purposively seen to arise otherwise than in province — Therefore, even if earliest possible date chosen for causes of action to arise (date impugned legislation coming into force), plaintiffs, other members of proposed classes not statute barred — Argument that actions should be struck on basis of estoppel, abuse of process principles rejected — While technical requirements for establishing cause of action estoppel present herein, defence should not be applied to present cases — Court always having residual discretion in application of estoppel or abuse of process defences — If actions reconstituted with proper pleadings, ultimately certified as class proceedings, would be inappropriate to bar them on basis of defences argued — Members of proposed classes should not be prejudiced by litigation conduct of representative plaintiffs; also practical difficulties faced by representative plaintiffs existing in bringing initial constitutional challenges — These matters dictate that persons affected by unconstitutional removal of access to earlier parole ought not be deprived of opportunity to seek monetary relief on basis of estoppel or abuse of process — Motions allowed subject to plaintiffs’ rights to amend pleadings, refile.
Whaling v. Canada (Attorney General) (T-455-16, T-456-16, 2017 FC 121, Barnes J., judgment dated January 31, 2017, 21 pp.)