Judgments

[1993] 1 F.C. 171

T-2283-92

Native Women’s Association of Canada, Gail Stacey-Moore and Sharon McIvor (Applicants)

v.

Her Majesty the Queen, The Right Honourable Brian Mulroney and The Right Honourable Joe Clark (Respondents)

and

The Assembly of First Nations, The Native Council of Canada, The Métis National Council and The Inuit Tapirisat of Canada (Intervenors)

Indexed as: Native Women’s Assn. of Canada v. Canada (T.D.)*

Trial Division, Strayer J.—Ottawa, October 13, 14 and 16, 1992.

Constitutional law — Charter of Rights — Enforcement — Application for injunctions under Charter, s. 24 prohibiting continuation of discussions between respondents and native organizations until NWAC entitled to participate in constitutional review process on equal terms and prohibiting respondents from proceeding with referendum on constitutional reform — Applicants relying on F.C.A. declaration re: violations of NWAC’s rights — Whether rationale of F.C.A. decision applicable to process after date of judgment — With whom governments should consult in constitutional amendment development not justiciable issue — Charter, s. 32(1) not applying to constitutional amendment as not “matter” within authority of Parliament or provincial legislatures — Claims for injunctions struck out as disclosing no reasonable cause of action, abuse of process.

Elections — Referendum on constitutional reform based on Charlottetown Accord — Native Women’s Association seeking injunction prohibiting conduct of referendum — Complaint that not included in governmental consultations leading to Accord — Respondent Ministers without official role in conduct of referendum — Referendum question approved by resolution of Parliament — Proclamation issued by Governor in Council directing electors’ opinion be obtained — Chief Electoral Officer issued writs of referendum — Validity of Referendum Act not challenged — Minister lacking power to halt process even if so ordered by Court — Injunction denied as application (1) disclosing no reasonable cause of action (2) abuse of process of Court.

This was an application under the Charter, section 24 for injunctions prohibiting the continuation of discussions between the respondents (defendants) and certain designated organizations until the Native Women’s Association of Canada (NWAC) is entitled to participate in the constitutional review process on equal terms, and prohibiting the respondents from proceeding with the October 26, 1992 referendum on the Charlottetown constitutional reform agreement. The applicants had previously brought a motion in the Trial Division to prohibit the Canadian Government from making any further disbursements to certain native organizations until NWAC was accorded equal funding and the right to participate in the constitutional review process on equal terms. Upon appeal from the dismissal of the application for prohibition, the Federal Court of Appeal refused to prohibit the continued funding of the aboriginal organizations, but did issue a declaration concerning violations of NWAC’s rights. The main issue on the present application was whether the rationale of the Court of Appeal decision applied to events after August 20, 1992, the date of said decision, so that the rights of the applicants under paragraph 2(b) and section 28 of the Charter must be deemed to have been violated and to continue to be violated.

Held, the application should be dismissed.

The declaration issued by the Federal Court of Appeal must be taken to have been in relation to earlier events and not to extend to the taking and implementation of the federal and provincial governments’ joint decision of March 12, 1992 to invite the designated organizations, as the representatives of the aboriginal peoples, to participate thereafter in the constitutional process. The Court recognized that its jurisdiction under section 18 of the Federal Court Act was restricted to reviewing the decisions of federal boards and that it could not review an intergovernmental decision. It adopted the principles established in Penikett v. Canada and in the Supreme Court of Canada decision Reference Re Canada Assistance Plan (B.C.), one of those being that the formulation of a constitutional resolution is part of the legislative process of amendment with which the courts will not interfere except where a Charter guaranteed right may be affected. However one may define the “legislative process”; certain issues are not justiciable. Among those are questions as to whom federal and provincial governments ought to meet with and consult during the development of constitutional amendments. That issue is not justiciable unless there are legal or constitutional rules which a court can apply for its determination. Charter, subsection 32(1) does not apply to the making of a constitutional amendment as that is not a “matter” within the authority of either Parliament or provincial legislatures. Such amendments must be made by joint decisions of those bodies. What is involved in the present process, and has been involved since at least March 12, is an intergovernmental effort to agree on the substance and later the texts of constitutional amendments to be presented to Parliament and the legislatures for joint approval by resolution. This effort does not come within subsection 32(1) which applies the Charter to governmental activity.

The claim for injunctions with respect to the constitutional review process had to be struck out as disclosing no reasonable cause of action and as an abuse of the process of the Court in that they raised matters beyond the jurisdiction of any court to decide. The requests for interlocutory and permanent injunctions to restrain holding of the referendum could also be struck out or dismissed as disclosing no reasonable cause of action and as an abuse of the process of the Court for another reason. That referendum is being conducted under the Referendum Act and the necessary steps have been taken under that Act for its holding. Parliament has passed a resolution approving the referendum question and the Governor in Council has issued a Proclamation directing that the opinion of electors be obtained on the question approved by Parliament. The referendum had, therefore, to take place in accordance with the Act. Ministers could not halt that process, even if so ordered by the Court.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 2(b), 15, 28, 32(1).

Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44].

Federal Court Act, R.S.C., 1985, c. F-7, s. 18.

Federal Court Rules, C.R.C., c. 663, R. 419(1)(a),(f).

Referendum Act, S.C. 1992, c. 30, s. 3.

CASES JUDICIALLY CONSIDERED

FOLLOWED:

Native Women’s Assn. of Canada v. Canada, [1992] 3 F.C. 192(C.A.); Reference re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525; (1991), 83 D.L.R. (4th) 297; [1991] 6 W.W.R. 1; 58 B.C.L.R. (2d) 1; 127 N.R. 161; Penikett v. Canada (1987), 45 D.L.R. (4th) 108; [1988] 2 W.W.R. 481; 21 B.C.L.R. (2d) 1; [1988] N.W.T.R. 18; 2 Y.R. 314 (Y.T.C.A.).

REFERRED TO:

Minister of National Revenue & Queen (The) v. Creative Shoes Ltd., [1972] F.C. 993; (1972), 29 D.L.R. (3d) 89; 73 DTC 5127 (C.A.); Weider v. Beco Industries Ltd., [1976] 2 F.C. 739 (1976), 29 C.P.R. (2d) 175 (T.D.).

AUTHORS CITED

Canada. Shaping Canada’s Future Together—Proposals, Minister of Supply and Services Canada, 1991.

APPLICATION for injunctions pursuant to the Canadian Charter of Rights and Freedoms, section 24 prohibiting the continuation of discussions between the respondents and certain native organizations and prohibiting the respondents from proceeding with the October 26, 1992 referendum on constitutional reform. Application dismissed.

COUNSEL:

Mary Eberts for applicants.

Graham Garton, Q.C. and David Sgayias, Q.C. for respondents.

Peter K. Doody for intervenor Assembly of First Nations.

John D. Richard, Q.C., for intervenor Métis National Council.

Brian A. Crane, Q.C., and Martin W. Mason for intervenors Native Council of Canada and Inuit Tapirisat of Canada.

SOLICITORS:

Tory Tory DesLauriers & Binnington, Toronto, for applicants.

Deputy Attorney General of Canada for respondents.

Scott & Aylen, Ottawa, for intervenor Assembly of First Nations.

Lang, Michener, Honeywell, Ottawa, for intervenor Métis National Council.

Gowling, Strathy & Henderson, Ottawa, for intervenors Native Council of Canada and Inuit Tapirisat of Canada.

The following are the reasons for order rendered in English by

Strayer J.:

Relief Requested

This is an application for the following relief:

(a)       an injunction pursuant to section 24 of the Canadian Charter of Rights and Freedoms, prohibiting the continuation of discussions between the defendants, or any of them, on the one hand, and the AFN, ITC, NCC or MNC, or any of them, on the other hand, on subjects dealt with in the Consensus Report on the Constitution of August 28, 1992 or any Political Accord or legal text related thereto unless and until the Native Women’s Association of Canada is accorded a right to participate in the constitutional review process on equal terms;

(b)       an injunction pursuant to section 24 of the Canadian Charter of Rights and Freedoms, prohibiting the defendants, or any of them, from continuing with the referendum scheduled for October 26, 1992 or other referendum “based on” or otherwise invoking the Consensus Report of August 28, 1992 or related documents ….

Although it is not so stated in the notice of motion, it is not in dispute that the injunctions requested are interlocutory in nature. The plaintiffs commenced an action in this Court on September 15, 1992 in which damages and permanent injunctions to the same effect were requested, and this motion is an interlocutory proceeding in that action.

The defendants have also filed a motion for an order striking out the amended statement of claim and dismissing the action. This motion is based on Rule 419(1)(a) [Federal Court Rules, C.R.C., c. 663], alleging that there is no reasonable cause of action, and Rule 419(1)(f), alleging that the action is an abuse of the process of the Court.

Facts

The plaintiff Native Women’s Association of Canada (NWAC) is alleged in the statement of claim to be a “national non-profit organization … a grassroots organization, founded and led by Aboriginal women”. The individual plaintiffs are members and officers of NWAC. In March, 1992 they brought a motion in the Trial Division under section 18 of the Federal Court Act [R.S.C., 1985, c. F-7] seeking prohibition against the Government of Canada to prevent the latter from making any further disbursements under the “Aboriginal Constitutional Review Program” to the Assembly of First Nations (“AFN”), the Native Council of Canada (“NCC”), the Métis National Council (“MNC”) and the Inuit Tapirisat of Canada (“ITC”) (which I will refer to compendiously as the “designated organizations”) until the government provided to the NWAC an amount of funds equal to that provided to the AFN, the NCC, the MNC, and the ITC and the right

to participate in the constitutional review process on the same terms and in the same way as the four recipient groups, including participation in any First Ministers’ Meetings or Conferences to discuss constitutional renewal which take place in the next two years ….

I will later discuss in more detail the disposition of that application by the Federal Court of Appeal on August 20, 1992.

In the present proceedings, the plaintiffs in their statement of claim allege that meetings of First Ministers on the Constitution were held after that Court of Appeal decision, on August 21, 22, 27, and 28 at which the AFN, ITC, MNC, and NCC were full participants. The NWAC says it was not included in spite of initiatives taken by the plaintiffs to obtain access. The statement of claim alleges, and this was admitted by all parties at the hearing, that since August 28 extensive meetings and consultations (not including the NWAC) have been held by representatives of the parties to the constitutional agreement reached on August 28, 1992, now known as “the Charlottetown Accord”, to prepare legal texts for adoption in the Constitution in order to implement that Accord. The plaintiffs complain that as a result the emerging constitutional text does not meet all of their concerns. They say that this exclusion of them from the process is a continuing violation of the rights and freedoms held by the Court of Appeal to have been infringed in the past for which they seek damages as well as permanent injunctions.

Counsel for the defendants made essentially the same argument both in support of his motion to strike and in support of his position that there was in any event no serious issue raised upon which an injunction could be granted. He argued in effect that the issues raised in the request for the injunctions are not justiciable. He raised various other arguments as to the jurisdiction of the Court and the exercise of judicial discretion in the matter of injunctions. I shall mainly address the motion to strike. In doing so I am essentially able to reach my conclusions under Rule 419(1)(a) simply on the basis of the allegations in the pleadings (which must be taken to be admitted for this purpose) and the rest of the record, as well as the decision of the Federal Court of Appeal on which the plaintiffs rely. In disposing of the motion under Rule 419(1)(f) I can, of course, have resort to all the evidence filed.

The application for prohibition filed in March, referred to earlier, was dismissed by a judge of the Trial Division. On appeal the Federal Court of Appeal, in reasons issued on August 20, 1992 [[1992] 3 F.C. 192 seemingly allowed the appeal in part. Although the plaintiffs (who were the same as in the present proceeding) had requested prohibition, the Court of Appeal issued a declaration.

In that decision the Federal Court of Appeal made a number of determinations of fact, such as the following:

[…] interests [of native women] … are not only unlikely to be properly represented by AFN but are likely to be injured if AFN’s position prevails; NWAC does represent those women. The evidence is clear that AFN is not addressing their concerns.[1]

…

Measured against the norms of Canadian society as a whole, it is in the interests of aboriginal women that, if, as and when they become the subjects of aboriginal self-governments, they continue to enjoy the protection of the Canadian Charter of Rights and Freedoms and, in particular, the rights and freedoms accorded them by sections 15 and 28, or by equivalent provisions equally entrenched in aboriginal charters ….[2]

…

In my opinion, by inviting and funding the participation of those organizations [AFN, NCC, ITC] in the current constitutional review process and excluding the equal participation of NWAC, the Canadian government has accorded the advocates of male-dominated aboriginal self-governments a preferred position in the exercise of an expressive activity, the freedom of which is guaranteed to everyone by paragraph 2(b) and which is, by section 28, guaranteed equally to men and women. It has thereby taken action which has had the effect of restricting the freedom of expression of aboriginal women in a manner offensive to paragraph 2(b) and section 28 of the Charter.[3]

The Court refused to prohibit, as requested, the continued funding of the four designated aboriginal organizations until “equal funding” was provided to the NWAC. It also refused to halt such funding until the Government of Canada allowed the NWAC to participate in the discussions, taking the view that at that stage discussions had moved to the “legislative” stage with which courts cannot interfere. The Court did, however, make a declaration concerning certain violations of NWAC’s rights, in the following terms:

IT IS DECLARED THAT the Appellants’ freedom of expression guaranteed them by sections 2(b) and 28 of the Canadian Charter of Rights and Freedoms was infringed by the Government of Canada denying the Native Women’s Association of Canada equal participation to that accorded the Intervenants and the Assembly of First Nations in the constitutional review process initiated by its publication of the document entitled Shaping Canada’s Future Together—Proposals.

Conclusions

The plaintiffs argue in effect that this declaration represents determinations of law which are binding on me, which establish that there is a serious issue and preclude a striking out of the action. It is therefore necessary to consider carefully the meaning of the declaration, with reference to the reasons as required. First one must consider whether the statement that the plaintiffs’ rights were infringed by the government denying them “equal participation” refers to both the inadequate funding and the failure to ensure that they were included in the constitutional review process. It will be noted that the notice of motion, upon which the proceedings before the Federal Court of Appeal were originally based, requested prohibition both until the government had provided the NWAC with funds equal to those provided to the designated organizations, and until it provided the NWAC with “rights to participate in the constitutional review process”. The Court itself seems to treat “participation” as referring to matters other than funding.[4] Further, the Court stated that “equal funding” would not necessarily be required to achieve the equality required by section 28 of the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]].[5]. Arguably, then, the reference to “equal participation” in the declaration only refers to the failure to ensure that the NWAC was included in certain processes. As no question of funding is involved in the present proceedings, however, it is not necessary to determine finally the scope of “equal participation”. It seems at least clear that it does include invitations to meetings and a role in consultations, the subjects of the present proceeding.

The more important issue is as to whether the declaration was limited in its application to events which had occurred prior to the inter-governmental meetings held in 1992, to most of which the designated organizations were invited but not the NWAC. It is clear from both the Court of Appeal reasons and the statement of claim in the present case that a process of consultation with the public and with aboriginal organizations had commenced with the release by the Government of Canada of its constitutional proposals entitled Shaping Canada’s Future Together—Proposals in the summer of 1991. Those proposals were referred to a Parliamentary Committee which proceeded to hold hearings at which members of the public could make their views known; and at about the same time a parallel process was started by the aboriginal organizations with respect to their communities, sustained by funding to the designated organizations provided by the Government of Canada. This and other processes of public consultation continued until March 12, 1922 when representatives of the federal, provincial and territorial governments and the designated organizations started meetings which continued until July 7. Thereafter in August there were some meetings of the federal and provincial First Ministers alone and then meetings of First Ministers, representatives of the territorial governments and of the designated organizations culminating in the Charlottetown Accord of August 28. The plaintiffs here complain about the meetings to which they were not invited held after August 20, the date of the Court of Appeal decision. The question is then as to whether the rationale of the Court of Appeal decision applies equally to the process after August 20 so that the rights of the plaintiffs under paragraph 2(b) and section 28 of the Charter must equally be deemed to have been violated and continue to be violated therein.

I have concluded that the declaration issued by the Federal Court of Appeal must be taken to refer to earlier events and to be confined to the processes not involving the taking and implementation of the joint decision of the governments of March 12 to invite the designated organizations as the representatives of the aboriginal peoples to participate thereafter in the constitutional process. The Court itself recognized that it only had jurisdiction under section 18 of the Federal Court Act to review the decision of a federal board, agency, etc. and that therefore it could not review that intergovernmental decision of March 12. This is clear from the following passage:

The evidence is that the decision to invite “representatives of the Aboriginal peoples to be full participants in the constitutional process” was made at a meeting March 12, 1992, of federal, provincial and territorial representatives. That was clearly not the decision of a federal board, etc., and is relied on by the respondent in disputing the availability of section 18 relief. However, there is no evidence that the decision to invite the designated aboriginal organizations to engage in a process parallel to that of the Parliamentary Committee was made by any but an authorized emanation of the federal government alone and it is most unlikely, if not legally impossible, that the decision to allocate federal funding was made by any but a federal board, etc. As I understand our Constitution, the expenditure of funds must have been authorized by Act of Parliament. If, as it appears, the invitation to join in the process was not authorized by Act or regulation, it must have been an exercise of Crown prerogative.[6]

Thus the Court of Appeal decision can only be taken to be dealing with decisions by the Government of Canada with respect to aboriginal participation in the “parallel process” referred to[7] which preceded the intergovernmental meetings, and not decisions taken at those meetings commencing March 12 to include the designated organizations but not the NWAC.

Not only does the decision of the Court of Appeal not apply by its terms to the decisions taken by the federal and provincial governments to invite the designated organizations to participate in the intergovernmental discussions, but the rationale of the Court of Appeal judgment excludes those decisions from judicial review. The Court adopts the reasoning in Penikett v. Canada[8] and the decision of the Supreme Court of Canada in Reference re Canada Assistance Plan (B.C.)[9] [in which it was held that normally the courts should not be involved in reviewing the “legislative process”. The Supreme Court of Canada did expressly

leave aside the issue of review under the Canadian Charter of Rights and Freedoms where a guaranteed right may be affected.[10]

In following these decisions, and having regard to the latter statement, the Federal Court of Appeal stated

… it is notorious that the constitutional review process has now moved beyond consultation. Every such process necessarily will at some point, unless it aborts sooner, pass from a consultative stage to a legislative stage in which the courts will not meddle. While the CAP Reference appears to have left the question open, I frankly cannot conceive of even Charter-based circumstances in which a court could properly interfere, however indirectly, with the convening of a First Ministers’ Conference or any other purely intergovernmental meeting and dictate to them whom they ought to invite to their table.[11]

Thus in effect the Court of Appeal recognized that the current process had already gone beyond the point of judicial review.

The Court of Appeal was of the view that the following principles were established by the reference in Re Canada Assistance Plan and the Penikett case [at page 217]:

a. the Charter, Part I of the Constitution Act, 1982, cannot be invoked to interfere with the process of amending the Constitution mandated by Part V;

b. the process of amending the Constitution, as a legislative process, begins not later than when First Ministers are convened to agree upon a constitutional resolution they will put to their legislatures; and

c. the formulation of a constitutional resolution is part of the legislative process of amendment with which the courts will not interfere except, possibly, where a Charter guaranteed right may be affected.

In Penikett, which involved a complaint by the Yukon Territory that it had not been invited to the First Ministers’ meetings which resulted in the Meech Lake Accord, it was held that

the Prime Minister in convening the Meech Lake Conference of First Ministers was initiating the process of legislation which could lead to an amendment of the Constitution.

It would be hard to distinguish in principle between First Ministers’ meetings and the meeting of ministers of the respective governments “which could lead to an amendment of the Constitution”. It is common ground that such ministerial meetings started in the present process on March 12, 1992. But even if the “legislative” process is confined to meetings of First Ministers, these commenced on August 4 and everything which has followed has involved either meetings of First Ministers or meetings of officials to implement the decisions of First Ministers.

It is true that, as quoted above, the Court of Appeal stated that a court could not properly interfere

with the convening of a First Ministers’ Conference or any other purely intergovernmental meeting and dictate to them whom they ought to invite to their table. [Emphasis added.]

The plaintiffs contend that since the meetings commencing on March 12 involved the four designated organizations, these were not “purely intergovernmental” meetings. I do not think the Court of Appeal intended such a distinction, since it lays emphasis on the fact that a legislative process had begun and that is a process with which courts should not interfere. It is no less a legislative process if the governmental representatives invite certain organizations to meet with them to assist in the development of provisions for adoption in the Constitution.

Indeed, however one may define the “legislative process”—and in my view it is very difficult in an evolutionary process by which ideas for constitutional change eventually find their way into constitutional amendments, to fix a date when that process becomes ”legislative”—the fundamental problem is that certain issues are not justiciable. Among those are questions as to whom federal and provincial governments ought to meet with and consult during the development of constitutional amendments. That issue is not justiciable unless there are legal or constitutional rules which a court can apply for their determination.[12] What principles are the courts to apply in making up an invitation list for a constitutional conference? Assuming that, for example, section 15 or 28 of the Charter require that there be a gender balance in the interests represented at the constitutional table, how is one to define those interests? To what extent should they be regarded as legitimate free-standing interests, of compelling importance in disregard of competing interests and requiring separate representation? How is a judge to determine who genuinely represents those interests and who does not? These are surely political questions for which there are no legal or constitutional principles to guide a court in its decision. I cannot think that such decisions are the proper function of judges.

I also respectfully accept the conclusion of the Yukon Territory Court of Appeal (endorsed by the Federal Court of Appeal) that the Charter, relied on by the plaintiffs here to assert their right to a role in the constitutional amendment process, does not apply to the activities of governments when they are engaged in preparing or making amendments pursuant to Part V of the Constitution Act, 1982 [Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]]. As that Court held, subsection 32(1) of the Charter which makes it apply to the Government of Canada “in respect of all matters within the authority of Parliament” and to the government of a province or territory “in respect of all matters within the authority” of its legislature, does not apply to the making of a constitutional amendment. A constitutional amendment is not a “matter” within the authority of either Parliament or provincial legislatures. Rather such amendments must be made by joint decisions of those bodies.[13] What is involved in the present process, and has been involved since at least March 12, is an intergovernmental effort to agree on the substance and later the texts of constitutional amendments to be presented to Parliament and the legislatures for joint approval by resolution. This effort does not come within subsection 32(1) which applies the Charter to governmental activity.

I therefore conclude that the claims for injunctions in the statement of claim, depending as they do on the proposition that the Government of Canada is obliged to invite the plaintiff association to participate in the constitutional review process on equal terms with the designated organizations, must be struck out as disclosing no reasonable cause of action. It is plain and obvious that there is no legal basis for such a claim. Further these requests for relief are an abuse of the process of the Court involving as they do matters beyond the jurisdiction of any court to decide.[14] The requests for interlocutory injunctions to the same effect must be dismissed for the same reason.

The requests for interlocutory and permanent injunctions to stop the referendum scheduled for October 26, 1992 can be struck out or dismissed as disclosing no reasonable cause of action and as an abuse of the process of the Court for another reason. The defendants against whom these injunctions are sought are Her Majesty, the Prime Minister, and Constitutional Affairs Minister Clark. I do not understand what role Her Majesty is thought to play in all of this. Nor does the Prime Minister or the Right Honourable Mr. Clark have any official role in the conduct of the referendum. That referendum is being conducted under the Referendum Act.[15] It is not disputed that the necessary steps have been taken under that Act for the holding of a referendum. Parliament has passed the necessary resolution approving the referendum question and the Governor in Council has issued a Proclamation directing that the opinion of electors be obtained on the question approved by Parliament. Pursuant to those steps, the Chief Electoral Officer has issued the writs of referendum and is now in charge of conducting the vote. The plaintiffs do not challenge the validity of the Referendum Act nor of any steps taken thereunder. They have not, for example, named the Governor in Council as a defendant nor challenged the validity of the issue of the proclamation. Therefore the referendum must continue in accordance with the Act and neither the Prime Minister nor the Right Honourable Mr. Clark can stop that process even if the Court ordered them to do so. Further, it is not apparent to me that even if the plaintiffs had established some constitutional impropriety in the conduct of federal-provincial discussions leading up to the Charlottetown Accord, it would necessarily follow that the referendum could not be held on the basis of that Accord. In fact section 3 of the Referendum Act authorizes the use of a referendum to obtain the opinion of electors “on any question relating to the Constitution of Canada ….” Such question could emanate from any source as long as it is approved by the House of Commons and Senate. There is no condition precedent in the Referendum Act that such question be based on any intergovernmental consensus.

For the same reasons I would conclude that even if these requests for injunctive relief were not struck out or dismissed for want of jurisdiction, injunctions would have to be refused because no serious issue has been raised. For these purposes I can rely on all of the evidence submitted.

I am not going to strike out the relief for damages in the statement of claim because it may well cover as well the period prior to March 12 in respect of which the Federal Court of Appeal made its declaration. As I understand it, the complaint in that respect is that the government has not respected the declaration of the Court of Appeal and through its failure to provide funding in that period on an appropriate basis the plaintiffs have suffered damages. This issue was not debated before me and I therefore make no finding as to the viability of the claim for damages.

I am awarding costs to the respondents in accordance with usual practice but not to the intervenors who appeared at their own request.

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