Judgments

Decision Information

The Queen v. Operation Dismantle Inc.

Collection	Judgments
Date	1983-11-28
Report citation	[1983] 1 F.C. 745
File numbers	A-1331-83
Subjects	Constitutional Law

Decision Content

A-1331-83

The Queen, the Right Honourable Prime Minis ter, the Attorney General of Canada, the Secre tary of State for External Affairs, the Minister of Defence (Appellants) (Defendants)

Operation Dismantle Inc., Canadian Union of Public Employees, Canadian Union of Postal Workers, National Union of Provincial Govern ment Employees, Ontario Federation of Labour, Arts for Peace, Canadian Peace Research and Education Association, World Federalists of Canada, Alberni Valley Coalition for Nuclear Dis armament, Comox Valley Nuclear Responsibility Society, Cranbrook Citizens for Nuclear Disarma ment, Peace Education Network, Windsor Coali tion for Disarmament, Union of Spiritual Com munities of Christ Committee for World Dis armament and Peace, Against Cruise Testing Coalition, B.C. Voice of Women, National Action Committee on the Status of Women, Carman Nuclear Disarmament Committee, Project Surviv al, Denman Island Peace Group, Thunder Bay Coalition for Peace and Nuclear Disarmament, Muskoka Peace Group, Global Citizens' Associa tion, Physicians for Social Responsibility (Mon- treal Branch) (Respondents) (Plaintiffs)

Court of Appeal, Pratte, Ryan, Le Dain, Marceau and Hugessen JJ.—Ottawa, October 11 and 12; November 28, 1983.

Constitutional law — Charter of Rights — Appeal from order denying motion to strike statement of claim and dismiss action — Cabinet decision permitting testing of cruise missile in Canada by U.S.A. — Action for declaration that Cabinet decision unconstitutional as contravening rights guaranteed by Charter — Injunction against testing sought — Whether statement of claim raising justiciable issue — That decision political not ousting operation of Charter — Meaning of words "security of the person" — Security against arbitrary arrest or detention — Opinion of Viscount Radcliffe in Chandler and Others v. Director of Public Prosecutions, 119641 A.C. 763 (H.L.) approved — Matters subject to royal prerogative - with- in the authority of Parliament" and Charter applicable thereto — Charter cannot require courts to determine issues incapable of adjudication by law courts — No allegation that funda mental justice principles breached — S. 7 not creating rights giving rise to specific claims but constitutionalizing guarantees against arbitrary action — Cruise missile testing decision not arbitrary — Charter furnishing courts criteria for reviewing political decisions — Charter not abrogating tradition that royal prerogative exercised independently of courts — Appeal

allowed — Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.), ss. 7, 24(1), 32(1)(a) — Canadian Bill of Rights, S.C. 1960, c. 44 [R.S.C. 1970, Appendix III], s. I — European Convention on Human Rights, Art. 5 — Federal Court Rules 419, 474.

This is an appeal from the judgment of Cattanach J. reported at [ 1983] 1 F.C. 429 dismissing a Rule 419 application to strike the statement of claim and dismiss this action for a declaration that the decision to permit the United States of America to test cruise missiles in Canada was in contravention of rights guar anteed by the Charter and therefore unconstitutional. The plaintiffs also seek an injunction against the testing of these missiles. The Trial Judge dismissed the application as he was of the view that the statement of claim was sufficient to raise a justiciable issue.

Held, the appeal should be allowed and the action dismissed.

Per Pratte J.: The argument that as the decision to allow testing of the cruise was a political one made in the exercise of the royal prerogative and accordingly unaffected by the Charter, was not persuasive. Section 32 of the Charter clearly provides that it applies to "all matters within the authority of Parliament". But the facts alleged in the statement of claim do not constitute a denial of any right guaranteed by the Charter. The Charter did not modify our whole system of government or invite the courts to substitute their opinions for those of Parlia ment and the Executive on purely political questions. The purpose in enacting the Charter was not to confer legislative and executive powers on the judiciary. The words "security of the person" in section 7 were to be given a narrower meaning than that suggested by the plaintiffs. The only security protect ed was that against arbitrary arrest or detention. The statement of claim was seriously flawed in failing to allege that the decision to permit testing was not made in accordance with principles of fundamental justice. Upon a proper interpretation of the words "liberty and security of the person", it could not be said that the plaintiffs were affected by the decision in question. Plaintiffs argue that the decision to allow testing may incite foreign powers to act so as to endanger Canadian lives. But the Charter protects the "right to life"; it does not afford protection from being subjected to any physical danger.

Per Ryan J.: The royal prerogative, as it relates to the making of treaties and defence, is "within the authority of Parliament" and the Charter could apply to it. Everyone was at risk in a world with nuclear weapons but the question as to whether the decision to permit missile testing in Canada increases or decreases the risks is not susceptible to determina tion in a judicial proceeding. The decision to allow missile testing would be based on strategy and policy considerations

and assessing its wisdom would necessitate the evaluation of a vast range of factors and a delicate balancing of interests. As was said by Viscount Radcliffe in Chandler and Others v. Director of Public Prosecutions, [1964] A.C. 763 (H.L.) "... is it prejudicial to the interests of the State to include nuclear armament in its apparatus of defence? I do not think that a court of law can try that issue ... I can think of few issues which present themselves in less triable form." The action should be dismissed, there being no reason to suppose that it could be saved by any amendment of the pleadings.

Per Le Dain J.: A matter which is subject to the prerogative of the Crown in right of Canada is one on which Parliament may legislate so as to restrict or displace the prerogative and is therefore "within the authority of Parliament". That being so, the Charter is applicable to an exercise of the royal prerogative. The Charter imposes new legal limits on the exercise of the prerogative and has thereby enlarged the scope of judicial review of it. But the Charter is concerned with whether an exercise of prerogative power infringes a guaranteed right or freedom, not with the grounds for the exercise of the power. The Charter placed limits on both the sovereignty of Parlia ment and on the prerogative power of the Crown. Despite the enlarged scope of judicial review which the Charter imposes it cannot require the courts to determine issues not capable of adjudication by a court of law. The question as to the impact of cruise missile testing on the risk of nuclear conflict is not susceptible of adjudication by a court. It was unnecessary to take a position on the difficult question as to whether the words "the principles of fundamental justice" impose only procedural requirements or also substantive standards of justice since the statement of claim made no reference to a failure to satisfy the principles of fundamental justice in either a procedural or substantive sense. It was untenable to argue that an infringe ment of the right to security of the person was per se a denial of substantive fundamental justice.

Per Marceau J.: The wording of the French version clearly demonstrated that the purpose of section 7 of the Charter was not to create positive rights giving rise to specific claims but rather to "constitutionalize" guarantees against arbitrary action by public authorities in the exercise of powers affecting citizens in their person. This guaranty was in line with that contained in paragraph 1(a) of the Canadian Bill of Rights, but with a renewed meaning not only because, as a constitu tional provision, it is unassailable but because it applies to Parliament and governments as well as to bodies exercising judicial, quasi-judicial or administrative powers. It will never be possible to give the provision any higher mission than that of protecting the life and freedom of movement of citizens against arbitrary action and despotism by people in power directly in conflict with the general sense of justice and equity. There was nothing arbitrary in the decision on cruise missile testing and no suggestion that it was made without regard to any principle of fundamental justice. While the appeal must be allowed on that basis, the issue as to whether the Court has power to review the impugned decision should be addressed. That is a question of fundamental law since it involves the basic princi ples of the division of powers and the function assigned to the

courts in the constitutional system of Canada. The arguments in support of the proposition that a political decision is not reviewable in the courts appeal to tradition, precedent and democratic necessity but they are not convincing. While there is no suggestion of giving the courts responsibility for making political decisions, they become involved when performing their duty of ensuring that the Constitution is observed. The courts traditionally avoided reviewing political decisions because they did not have the criteria for doing so but that lack was remedied by the Charter. The narrower argument, that the decision is not reviewable because it relates to national defence and external relations, cannot be rejected. The supreme com mand of the armed forces, national defence and the conduct of external affairs are what today make up the royal prerogative. In reality, these are privileges and powers of the Cabinet. The royal prerogative can be limited only by clear and express statutory provision. It is out of the question that in incorporat ing the Charter into the constitutional whole, the Canadian Parliament intended to abrogate the legal tradition that the royal prerogative is to be exercised independently of the courts. The courts have no power to interfere with an act within the limits of the prerogative.

Per Hugessen J.: The plaintiffs' claim was fatally flawed in its failure to allege a breach of the principles of fundamental justice and in the fact that if their rights are breached that will result from the actions of those who are not parties to this action. Breaches of Charter rights by foreign powers are not justiciable under the Charter.

CASES JUDICIALLY CONSIDERED APPLIED:

Chandler and Others v. Director of Public Prosecutions, [1964] A.C. 763 (H.L.), affirming R. v. Chandler and Others, [1962] 2 All E.R. 314 (C.C.A.); China Naviga tion Company, Limited v. Attorney-General, [1932] 2 K.B. 197 (C.A.); Chicago and Southern Air Lines v. Waterman Steamship Corporation, 333 U.S. 103 (1947).

REFERRED TO:

The Attorney General of Canada v. Inuit Tapirisat of Canada et al., [1980] 2 S.C.R. 735; Canadian Peniten tiary Service v. Marcotte, et al., [1977] 1 F.C. 297 (C.A.); The Queen v. Douglas, [1976] 2 F.C. 673 (C.A.); The Queen v. Wilfrid Nadeau Inc., [1973] F.C. 1045 (CA.); Page. et al. v. Churchill Falls (Labrador) Corp. Ltd. et al., [1972] F.C. 1141 (C.A.); Hubbuck & Sons, Limited v. Wilkinson, Heywood & Clark, Limited, [1899] 1 Q.B. 86 (C.A.); Attorney-General v. De Key- ser's Royal Hotel, Limited, [1920] A.C. 508 (H.L.); Blackburn v. Attorney-General, [1971] 2 All E.R. 1380 (C.A.); Laker Airways Ltd. v. Department of Trade, [1977] 1 Q.B. 643 (C.A.); Reference Re Section 94(2) of the Motor Vehicle Act (British Columbia) (1983), 19 M.V.R. 63 (B.C. C.A.); R. v. Randall et al. (1983), 58 N.S.R. (2d) 234 (N.S. S.C. A.D.); The Queen v. Hayden (not yet reported) (Man. C.A., October 5, 1983);

Rylands et al. v. Fletcher (1866), Law Rep. 1 Ex. 265; (1868), Law Rep. 3 H.L. 330; Miller et al. v. Her Majesty The Queen, [1977] 2 S.C.R. 680; 70 D.L.R. (3d) 324; Re Potma and The Queen, 41 O.R. (2d) 43 (Ont. C.A.); Balderston et al. v. The Queen et al. (not yet reported) (Man. C.A., September 12, 1983); Re Bateman's Trusts (1873), L.R. 15 Eq 355; The Liquida tors of the Maritime Bank of Canada v. The Receiver- General of New Brunswick, [1892] A.C. 437; Nadan v. The King, [ 1926] A.C. 482 (P.C.); Jennings v. The Township of Whitby, [1943] O.W.N. 170; In re A Peti tion of Right, [1915] 3 K.B. 666 (C.A.); Holtzman v. Schlesinger, 484 F.2d 1307 (1973) (U.S. Court of Appeals); Atlee v. Laird, 347 F Supp. 689 (1972) (affirmed, 411 U.S. 911 (1973)); Luftig v. McNamara et al., 373 F.2d 664 (1967).

COUNSEL:

Ian Binnie, Q.C. and Graham Garton for appellants (defendants).

Lawrence Greenspon and Irwin Cotler for respondents (plaintiffs).

SOLICITORS:

Deputy Attorney General of Canada for appellants (defendants).

Karam, Tannis, Greenspon, Vanier, Ontario, for respondents (plaintiffs).

The following are the reasons for judgment rendered in English by

PRATTE J.: This is an appeal from a judgment of Mr. Justice Cattanach of the Trial Division [ [ 1983] 1 F.C. 429] dismissing an application made by the appellants under Rule 419 to strike out the respondents' statement of claim and dis miss their action.

The respondents, plaintiffs in the Court below, are a group of organizations and unions claiming to have a collective membership of more than 1.5 million Canadians. In their statement of claim, they allege that, pursuant to an agreement previ ously entered into with the government of the United States, the Canadian Government decided, on July 15, 1983, "to proceed with the testing of air-launched cruise missiles in Canada", a decision which was made in spite of the numerous steps they had taken to manifest their opposition to it; they further allege, in the following terms, that the testing of the cruise missiles in Canada will violate their constitutional rights as guaranteed by 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.):

7. The Plaintiffs state and the fact is that the testing of the cruise missile in Canada is a violation of the collective rights of the Plaintiffs and their members and all Canadians, specifically their right to security of the person and life in that:

(a) the size and eventual dispersion of the air-launched cruise missile is such that the missile cannot be detected by surveil lance satellites, thus making verification of the extent of this nuclear weapons system impossible;

(b) with the impossibility of verification, the future of nuclear weapons' control and limitation agreements is com pletely undermined as any such agreements become practi cally unenforceable;

(c) the testing of the air-launched cruise missiles would result in an increased American military presence and interest in Canada which would result in making Canada more likely to be the target of a nuclear attack;

(d) as the cruise missile cannot be detected until approxi mately eight minutes before it reaches its target, a "Launch on Warning" system would be necessary in order to respond to the cruise missile thereby eliminating effective human discretion and increasing the likelihood of either a pre emptive strike or an accidental firing, or both;

(e) the cruise missile is a military weapon, the development of which will have the effect of a needless and dangerous escalation of the nuclear arms race, thus endangering the security and lives of all people.

On the basis of these allegations, the respondents claim an injunction prohibiting the testing of the air-launched cruise missiles in Canada and a dec laration that the decision of the appellants that these missiles be tested in Canada "is unconstitu tional as being a violation of rights contained in the Charter of Rights and Freedoms".

After being served with that statement of claim, the appellants moved that it be struck out as disclosing no reasonable cause of action. That motion was dismissed by Mr. Justice Cattanach after a full day of argument. He was of the view [at page 437] "that the statement of claim did contain sufficient allegations to raise a justiciable issue". That is the judgment against which this appeal is directed.

As I understand the law applicable to a matter of this kind, the judgment under appeal must be

confirmed unless it be obvious, in our view, that the respondents' action cannot succeed.'

The main argument put forward by counsel for the appellants was based on what he viewed as the special nature of the decision allowing the cruise missile to be tested in Canada. That decision, said he, was purely political and had been made by the government in the exercise of a royal prerogative; he submitted that the Canadian Charter of Rights and Freedoms does not apply to decisions of that kind. That argument did not persuade me. Section 32 of the Charter specifies that the Charter applies "to the Parliament and government of Canada in respect of all matters within the authority of Par liament". In view of such a clear provision, I cannot agree with the appellants' submission that some decisions of the Government of Canada relating to certain matters should nevertheless be excepted from the application of the Charter. I share, on this point, the views of Mr. Justice Cattanach.

However, I am of opinion, for another reason, that the respondents' statement of claim does not disclose a reasonable cause of action. Indeed, in my view, the facts alleged in the statement of claim, assuming them to be proved, do not consti tute an infringement or a denial of any of the rights and freedoms guaranteed by the Charter. My views on this point will be clearer if I start by making a few preliminary observations.

The respondents claim that the appellants' deci sion to test the cruise missile violates their right to life and security as guaranteed by section 7 of the Charter. 2 In interpreting that provision, it should not be forgotten that, if the enactment of the Charter brought an important change in our Con stitution, it nevertheless did not modify our whole system of government. We continue to be governed by a Constitution "similar in principle to that of

'See: The Attorney General of Canada v. Inuit Tapirisat of Canada et al., [1980] 2 S.C.R. 735 at p. 740; Canadian Penitentiary Service v. Marcotte, et al., [1977] 1 F.C. 297 (C.A.); The Queen v. Douglas, [1976] 2 F.C. 673 (CA.); The Queen v. Wilfrid Nadeau Inc., [1973] F.C. 1045 (C.A.); Page, et al. v. Churchill Falls (Labrador) Corp. Ltd. et al., [1972]

F.C. 1141 (C.A.).

2 Section 7 reads as follows:

7. Everyone has the right to life, liberty and security of the

person and the right not to be deprived thereof except in

accordance with the principles of fundamental justice.

the United Kingdom" under which the laws are made by the elected representatives of the people to whom the Cabinet and ministers are answerable for their decisions. The words used in the Charter and, particularly, in section 7, should not, there fore, be given so wide an interpretation that the courts would, as a result, be invited to substitute their opinions to those of Parliament and the Executive on purely political questions. The Chart er was enacted for the purpose of protecting cer tain fundamental rights and freedoms; it was not meant to confer legislative and executive powers on the judges.

These general considerations are not without relevance. The respondents assumed in their argu ment that the right to "security of the person" guaranteed by section 7 is the right of every person to be protected against any danger and provided with the necessaries for his well-being. If such an interpretation of the phrase "security of the per son" were to prevail, most statutes and governmen tal decisions could be challenged in court by those contesting their wisdom or opportunity. This points to the desirability of giving to the words "security of the person" in section 7 a narrower meaning than the one proposed by the respondents. In this connection, it is interesting to note that those words are not used in isolation in section 7 but, rather, are used in conjunction with the word liberty in the phrase "liberty and security of the person". That very same phrase is found in para graph 1(a) of the Canadian Bill of Rights. 3 It is also found in the European Convention on Human Rights which, in Article 5, recognizes that "Every- one has the right to liberty and security of person." According to the established jurisprudence of the European Commission of Human Rights, the phrase "liberty and security of person" must be read as a whole as referring to freedom from arrest and detention and to protection against arbitrary

3 S.C. 1960, c. 44 [R.S.C. 1970, Appendix III], s. 1:

1. It is hereby recognized and declared that in Canada there have existed and shall continue to exist without dis crimination by reason of race, national origin, colour, reli gion or sex, the following human rights and fundamental freedoms, namely,

(a) the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law;

interference with that liberty.' In my opinion, that expression is used in the same meaning in section 7 of the Charter. The only security that is protected by that provision is, in my opinion, the security against arbitrary arrest or detention. It is of that security that a person cannot be deprived other wise than "in accordance with the principles of fundamental justice."

It is also important to bear in mind, in assessing the sufficiency of the allegations of the respond ents' statement of claim, that the Charter is a constitutional document which protects the guar anteed rights and freedoms from infringement by the various legislatures and governments in Canada but affords no protection against the acts of other persons. Moreover, the Charter does not impose on the legislatures and governments in Canada any duty to take positive steps to protect fundamental rights and freedoms; it merely pre vents the various legislatures and governmental authorities from adopting legislations or making decisions which would infringe or deny those rights and freedoms. When, therefore, a person attacks a ministerial decision on the ground that it violates the Charter, he must show, in order to succeed, that this decision has "infringed or denied" his rights under the Charter. 5

I now turn to the respondents' statement of claim. It nowhere alleges that the impugned deci sion was not made in accordance with the princi ples of fundamental justice to which section 7 refers. 6 This is a serious flaw. But there is more.

' Trechsel, S., "The Right to Liberty and Security of the Person—Article 5 of the European Convention on Human Rights in the Strasbourg Case-Law", [1980] Human Rights Law Journal 88 at p. 98; Nedjati, Z. M., Human Rights under the European Convention, 1978, North-Holland Publishing Company, pp. 85, 86 and 87.

5 Under subsection 24(1), only those whose rights or free doms have been infringed or denied may apply to the courts and invoke the Charter:

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

6 At the hearing, counsel for the respondents were asked many times to state the principle of fundamental justice that, in their view, had been ignored in this case. They could not answer.

The respondents do not allege any fact from which it could conceivably be inferred that the decision to test the cruise missile in Canada. has infringed their rights under section 7 of the Charter. As to their right to "liberty and security of the person", it is clear, when those words are given their correct interpretation, that they cannot be said to have been affected by the decision here in question. As to their right to life, the situation, in my view, is not different. It is nowhere alleged that the deci sion to test the cruise missile in Canada did, in itself, directly infringe or deny the respondents' right to life. The statement of claim alleges, in short, that the decision to test the cruise missile in Canada will create a situation which is likely to incite foreign powers to act in a way which would endanger Canadian lives. In other words, the respondents do not fear an infringement of the Charter by the government of this Country, but by third parties which are not bound by the Charter. It is the position of the respondents, however, that the decision which they attack does in itself violate the Charter because it creates a situation as a result of which Canadians are likely to be deprived of their right to life. This is tantamount to saying that any governmental decision allowing either a dangerous activity to be carried on or a dangerous situation to be created would infringe the right to life guaranteed by section 7 of the Charter unless it were made in accordance with the rules of fundamental justice. I do not agree. The Charter protects the "right to life"; it does not protect the right not to be subjected to any physical danger.

I would allow the appeal, set aside the order under attack, strike out the respondents' statement of claim and dismiss their action with costs both in this Court and in the Court below.

The following are the reasons for judgment rendered in English by

RYAN J.: This is an appeal from a decision of the Trial Division dismissing the appellants' application under Federal Court Rule 419 to strike

out the statement of claim in this action on the ground that it discloses no reasonable cause of action. The Trial Judge dismissed the application to strike because he was of the view that the statement of claim contained at least [at page 436] "the germ of a cause of action"; it contained, he found [at page 437], "sufficient allegations to raise a justiciable issue". He saw in the statement of claim a possible cause of action by way of analogy to [at page 437] "liability from extra-haz ardous activities and the escape of noxious things within the principle of Rylands v. Fletcher".

It is, of course, well established, as the Trial Judge properly indicated, that the Court should not strike a statement of claim, unless it is obvious that its allegations contain no basis for possible success. On this appeal we must decide whether, on the basis of the statement of claim and the submissions made to us in argument, the Trial Judge erred in deciding that the statement of claim asserts a reasonable cause of action.

To succeed in this action, the respondents (the plaintiffs in the action) would, as I see it, have to succeed under section 7 of the Canadian Charter of Rights and Freedoms. I see no other basis for possible success in any other provision of the Charter. Section 7 provides:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

I have had the advantage of reading the reasons for judgment of Mr. Justice Pratte. He has sum marized many of the allegations in the statement of claim and quoted others. He has also indicated the remedies sought. I will not repeat what he has written in these respects. For the purposes of these reasons, I need add nothing to what he has sum marized and quoted.

It was submitted by counsel for the defendants that the decisions of the Canadian Government to enter into the Umbrella Agreement and to permit the testing of the cruise missile (which I assume were made) were taken in the exercise of the royal prerogative in respect of the making of interna tional agreements and of defence. There appears to be no doubt of this. In Chandler and Others v.

Director of Public Prosecutions', Viscount Rad- cliffe said at page 796:

The defence of the State from external enemies is a matter of real concern, in time of peace as in days of war. The disposi tion, armament and direction of the defence forces of the State are matters decided upon by the Crown and are within its jurisdiction as the executive power of the State. So are treaties and alliances with other States for mutual defence. An airfield maintained for the service of the Royal Air Force or of the air force of one of Her Majesty's allies is an instrument of defence, as are the airplanes operating from the airfield and their armament.

It was then argued that exercise of prerogative power is not subject to judicial review under the Charter. Counsel relied on the words "in respect of all matters within the authority of Parliament" which appear in paragraph 32(1)(a) of the Charter. This paragraph reads:

32. (1) This Charter applies

(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; ...

It was submitted that the royal prerogative does not fall "within the authority of Parliament". It is, it was said, a source of power independent of that authority. This is no doubt in one sense true, but it is not enough in itself to support the submission. The royal prerogative, as it relates to the making of treaties and defence, is subject to the authority of Parliament in the sense that legislation limiting it could be enacted by Parliament. Both treaty making and defence are matters within the author ity of Parliament in that Parliament could legislate in relation to them and to the use of the preroga tive in respect of them. Thus the prerogative, as it relates to foreign affairs and defence, is "within the authority of Parliament" so that the Charter could apply to it.

I turn now to what I regard as a critical ques tion. That question is whether, given the nature of the challenged decision to permit testing, there is any possibility that the case might succeed if it were permitted to proceed. Possibly the issue can be better stated: the issue is whether the statement of claim raises a litigable question. If it does not, it must be struck.

[1964] A.C. 763 (H.L.).

It can, I think, be taken for granted that a world in which there are nuclear weapons is a world in which everyone is at risk. The statement of claim itself refers to a nuclear bomb with a force twenty times that of the bomb used at Hiroshima. There is a question, however, whether the decision to permit the United States to test the cruise missile in Canada increases or decreases the risks to which all of us are subject. The problem is whether this question is susceptible of proof one way or another in a judicial proceeding.

The decision under attack was made by the government in the exercise of its prerogative au thority in relation to defence and foreign affairs. It must be assumed that the government acted in good faith in deciding as it did. The plaintiffs do not allege otherwise. Thus it must be assumed that the government, in deciding as it did, intended to strengthen national security against attack by hos tile forces. National security would, of course, include the security of the plaintiffs.

The accuracy of the government's estimate of what national security and national defence require is, of course, open to debate in our society, and the government is responsible for its decision under the principle of responsible government. But can the rightness or wrongness of its decision to permit testing be proved in a court case? The decision would obviously be based essentially on policy considerations, including questions of strategy. Whether the testing of the cruise missile should or should not be permitted, and more par ticularly whether the Canadian Government should authorize its testing in Canada, would depend upon the evaluation of a vast range of factors and on a delicate balancing of interests.

I have found the Chandler case, a case which went to the House of Lords and to which I have already referred, helpful. The Chandler case is a case in which persons who were members of a group which sought to further the aims of the Campaign for Nuclear Disarmament were charged with conspiring to commit a breach of a section of the Official Secrets Act, 1911, 1 & 2 Geo. 5, c. 28. As I understand it, they were charged with cons piring to enter an air force base for a purpose prejudicial to the safety or interest of the State.

In the course of their trial, the accused sought to call, but were prevented from calling, certain evi dence to establish that the purpose of their demon stration was not a purpose prejudicial to the safety or interest of the State. In the words of Lord Reid at page 787 of the Report:

Earl Russell, the founder of this organisation, explained in evidence that their ultimate purpose was to prevent a nuclear war and that their more immediate purpose was to get the facts about nuclear warfare known to the public by any means they could and in particular by pursuing a campaign of non-violent civil disobedience.

Lord Reid also stated at page 788:

It is quite clear from the evidence, including documents, that all the accused intended and desired that a number of persons should enter the base and by obstruction prevent any aircraft from taking off for some six hours. Moreover, they knew that this was unlawful and had been told that the Official Secrets Act might be used against them. In fact the demonstrators were prevented from entering the base, but that is immaterial.

I now turn to Viscount Radcliffe's speech at pages 797 and 798. In his speech, Viscount Rad- cliffe referred to the evidence the accused had sought to call at trial. He said:

The appellants' counsel said that he wanted to call evidence on such matters as the devastating effects and consequences of nuclear discharge, the dangers of accidental explosions, the technical difficulty of distinguishing approaching nuclear mis siles from other harmless objects in the sky, the possibility and likelihood of retaliation to this country if we set ourselves up with nuclear armament.

He continued:

Now some of these arguments or considerations do, no doubt, rest on a basis of fact or expert knowledge and properly qualified persons could give evidence before a jury as to their views or opinions based on such facts or knowledge: some, on the other hand, are intrinsically no more than matters of political decision or judgment. But, even if all these matters were to be investigated in court, they would still constitute only various points of consideration on the ultimate general issue, is it prejudicial to the interests of the State to include nuclear armament in its apparatus of defence? I do not think that a court of law can try that issue or, accordingly, can admit evidence upon it.

His Lordship made it clear that the real problem was not that the issue he was considering was "political". He said:

It is not debarred from doing so merely because the issue is what is ordinarily known as "political". Such issues may present themselves in courts of law if they take a triable form. Nor, certainly, is it because Ministers of the State have any

inherent general authority to prescribe to the courts what is or is not prejudicial to the interests of the State.

He concluded [at pages 798 - 799]:

But here we are dealing with a matter of the defence of the realm and with an Act designed to protect State secrets and the instruments of the State's defence. If the methods of arming the defence forces and the disposition of those forces are at the decision of Her Majesty's Ministers for the time being, as we know that they are, it is not within the competence of a court of law to try the issue whether it would be better for the country that that armament or those dispositions should ,be different. The disposition and equipment of the forces and the facilities afforded to allied forces for defence purposes constitute a given fact and it cannot be a matter of proof or finding that the decisions of policy on which they rest are or are not in the country's best interests. I may add that I can think of few issues which present themselves in less triable form. It would be ingenuous to suppose that the kind of evidence that the appel lants wanted to call could make more than a small contribution to its final solution. The facts which they wished to establish might well be admitted: even so, throughout history men have had to run great risk for themselves and others in the hope of attaining objectives which they prize for all. The more one looks at it, the plainer it becomes, I think, that the question whether it is in the true interests of this country to acquire, retain or house nuclear armaments depends upon an infinity of considerations, military and diplomatic, technical, psychologi cal and moral, and of decisions, tentative or final, which are themselves part assessments of fact and part expectations and hopes. I do not think that there is anything amiss with a legal ruling that does not make this issue a matter for judge or jury.

I realize, of course, that there are differences between the issues in Chandler and those involved in this case. There are, however, similar elements. Viscount Radcliffe put the issue to which his remarks were addressed as "the question whether it is in the true interests of this country to acquire, retain or house nuclear armaments". In my view of the present case, the issue is whether the chal lenged government decision would impair our na tional security and thus adversely affect the per sonal interests of the plaintiffs in their own security. For my purpose, the quotation from Vis count Radcliffe is particularly apt if the words "interest in security" are substituted for the words "interests of the State".

For these reasons, I donclude that the statement of claim does not raise a triable issue and should, therefore, be struck.

I would add a few words. I have not found it necessary to decide whether, if it were possible to prove that on balance the risks to the personal security of the plaintiffs were increased by the government's decision, that could constitute a dep rivation of the "security of the person" as that term is used in section 7 of the Charter. I will say no more than that I doubt it could.

I have considered whether, in addition to strik ing the statement of claim, we should dismiss the action. The question is whether the cause of action might be saved by appropriate amendment of the statement of claim. I have concluded that there is no reason to suppose that the plaintiffs could save their cause of action by amendment. 8 For this reason, I have concluded that the statement of claim should not only be struck, but that the action should be dismissed. I would award costs both here and below.

* * *

The following are the reasons for judgment rendered in English by

LE DAIN J.: This is an appeal from the order of Mr. Justice Cattanach dismissing the appellants' application to strike out the respondents' statement of claim and dismiss their action on the ground that it does not disclose a reasonable cause of action.

The respondent organizations and unions chal lenge the decision of the Government of Canada, made pursuant to an agreement with the United States, to permit the testing of the air-launched cruise missile in Canada on the ground that it infringes the right to life and the right to security of the person guaranteed to their members and other Canadians by section 7 of the Canadian Charter of Rights and Freedoms (Part I of the Constitution Act, 1982), which reads as follows:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

The alleged infringement of these rights by the testing of the cruise missile in Canada is set out in paragraph 7 of the statement of claim as follows:

8 See Hubbuck & Sons, Limited v. Wilkinson, Heywood & Clark, Limited, [1899] 1 Q.B. 86 at p. 94 (C.A.).

(b) with the impossibility of verification, the future of nuclear weapons' control and limitation agreements is com pletely undermined as any such agreements become pratical- ly unenforceable;

The respondents seek an injunction to prevent the testing of the cruise missile, a declaration that the decision to test it is unconstitutional as an infringement of rights guaranteed by the Charter, and damages. As authority for the granting of such relief they invoke subsection 24(1) of the Charter, which reads:

The principal contention of the appellants in the Trial Division and in appeal was that the issues raised in the statement of claim were not justi- ciable because they were beyond the competence of a court of law to adjudicate. Alternatively, it was submitted that the statement of claim did not disclose an infringement by the Government of Canada of the right to life or the right to security of the person as guaranteed by the Charter.

Mr. Justice Cattanach expressed the principal contention of the appellants as follows [at page 433]: "the decision to permit the testing of the cruise missile in Canada was one made by the

Government of Canada in its executive capacity based upon policy and expediency and as such is not subject to control or interference from the judicial branch". He rejected this contention on the ground that the Charter is made expressly applicable to the "government of Canada", with out exception for acts or decisions of any particu lar character, by subsection 32(1), which reads:

32. (1) This Charter applies

(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and

(b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.

The appeal was argued on the assumption that the decision to permit the testing of the cruise missile in Canada rested entirely on the royal prerogative, or common law authority of the Crown, and not at all on statutory authority. The decision was said to be an exercise of the preroga tive powers in international relations and defence.

Although the main thrust of the submissions of counsel for the appellants on the first branch of the argument was that the issues raised in the statement of claim were by their nature not justi- ciable, he also contended, as I understood his argument, that subsection 32(1) of the Charter did not purport to, and indeed did not, apply to an exercise of the prerogative or common law author ity of the Crown, as distinct from an exercise of statutory authority. I propose to consider this argument before turning to the question of justici- ability. The argument, as I understood it, was based on the words "in respect of all matters within the authority of Parliament" in paragraph 32(1) (a) of the Charter and amounted to this: a matter that lies entirely within the prerogative or common law authority of the Crown is not one within the authority of Parliament. In effect, this is to give to the words the meaning that a matter is not within the authority of Parliament until Parlia ment has legislated upon it. I cannot think that was intended to be the meaning of the words, which ordinarily convey the sense of legislative competence rather than the exercise of such

competence. A matter which is subject to the prerogative of the Crown in right of Canada is one on which Parliament may legislate so as to restrict or displace the prerogative (cf. Attorney-General v. De Keyser's Royal Hotel, Limited, [1920] A.C. 508 (H.L.)), and as such, is in my opinion a matter "within the authority of Parliament", as those words are used in paragraph 32(1)(a). I note also that the French version of the words "any law" in subsection 52(1) of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.), is "toute autre règle de droit", indicating that not only statutory provisions and any law made in the exercise of statutory authority, but the common law rules of governmental authority are rendered inoperative to the extent of inconsistency with the Constitution of Canada. I am, therefore, of the opinion that the Charter is, on its face, applicable to an exercise of the royal prerogative.

Counsel for the appellants also argued that in view of the very restricted limits at common law of the scope of judicial review of an exercise of the royal prerogative, limits which he submitted re flected a fundamental principle of the Constitution concerning the proper relationship between the executive and the judiciary, it could not have been intended to subject an exercise of the prerogative to the scope of review called for by the application of the Charter, which necessarily involves issues of legislative and executive policy. He invoked, as indicating those limits, what was said in Blackburn v. Attorney-General, [1971] 2 All E.R. 1380 (C.A.) concerning the prerogative power to make treaties, and in Chandler and Others v. Director of Public Prosecutions, [1962] 3 All E.R. 142 (H.L.) concerning the prerogative power to determine the disposition and armament of the armed forces. The weight of judicial authority as to the scope of judicial review of an exercise of the royal preroga tive is summed up in de Smith's Judicial Review of Administrative Action, 4th ed. (J. M. Evans), pages 286-287, as follows:

(3) If it is claimed that the authority for the exercise of discretion derives from the royal prerogative, the courts have traditionally limited review to questions of vires in the narrow est sense of the term. They can determine whether the preroga tive power exists, what is its extent, whether it has been

exercised in the appropriate form and how far it has been superseded by statute; they have not normally been prepared to examine the appropriateness or adequacy of the grounds for exercising the power, or the fairness of the procedure followed before the power is exercised, and they will not allow bad faith to be attributed to the Crown.

The treatise goes on to suggest that there may be no reason to distinguish, in respect of the scope of judicial review, between the exercise of a preroga tive discretion and the exercise of a statutory discretion, a view expressed by Lord Denning M.R. in Laker Airways Ltd. v. Department of Trade, [1977] 1 Q.B. 643'(C.A.), which was relied on by the respondents in the present case. The Canadian Charter of Rights and Freedoms imposes new legal limits on the exercise of the prerogative and has thereby enlarged the scope of judicial review of it. But while the determination of the content of the rights and freedoms guaran teed by the Charter, having regard particularly to the words of section 1 ("subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society") raises new issues of policy, the Charter is concerned with whether an exercise of prerogative power infringes a guaranteed right or freedom, not with the appropriateness or adequacy of the grounds for the particular exercise of the power. I, therefore, find nothing in the common law limits of the scope of judicial review of the prerogative from which one must conclude that it could not have been intended to make it subject to the enlarged scope of review provided by the Charter. The Charter places limits on the sovereignty of Parliament. It is not so extraordinary that it should place the same limits on the prerogative power of the Crown, which is itself subject to the legislative authority of Parliament.

Despite the enlarged scope of judicial review which the Charter imposes it cannot, however, have the effect of requiring the courts to determine issues which are inherently non-justiciable because they are not capable of adjudication by a court of law. The central issue raised by paragraph 7 of the respondents' statement of claim is the effect of the proposed testing and availability of the cruise mis sile on the risk of nuclear conflict. That is mani festly not a question which is justiciable. It is not susceptible of adjudication by a court. It involves

factors, considerations and imponderables, many of which are inaccessible to a court or of a nature which a court is incapable of evaluating or weigh ing. On this question I find the observations of Viscount Radcliffe in the Chandler case, supra, particularly applicable. There the appellants, who had carried out a demonstration at an R.A.F. station against the possession of nuclear arms, were charged with a breach of the Official Secrets Act, 1911, by entering a prohibited place for a "purpose prejudicial to the safety or interests of the state". Addressing the question whether they should have been permitted to adduce evidence concerning the dangers and risks of nuclear weap ons to determine whether it was in the interests of the state to have such weapons, Viscount Radcliffe held that that issue was not justiciable, concluding his analysis as follows [at pages 798-799]: "The more one looks at it, the plainer it becomes, I think, that the question whether it is in the true interests of this country to acquire, retain or house nuclear armaments depends upon an infinity of considerations, military and diplomatic, technical, psychological and moral, and of decisions, tenta tive or final, which are themselves part assess ments of fact and part expectations and hopes. I do not think that there is anything amiss with a legal ruling that does not make this issue a matter for judge or jury." As Viscount Radcliffe observed, it is not necessary to rest this conclusion on a doc trine of "political questions" such as found in American jurisprudence. It is simply a question of the competence of a court of law. For this reason it is plain and obvious, in my opinion, that the respondents' statement of claim does not disclose a reasonable cause of action within the jurisdiction of the Court.

In view of this conclusion, it is not strictly necessary for me to deal with the various issues raised by the appellants' alternative contention, that the respondents' statement of claim does not disclose an infringement by the Government of Canada of the right to life or the right to security of the person as guaranteed by section 7 of the Charter. In case, however, that I am wrong on the question of justiciability, I propose to state another

reason why I think it is plain and obvious that the statement of claim does not disclose a reasonable cause of action.

The protection afforded by section 7 of the Charter to the right to life and the right to security of the person is that a person cannot be deprived of these rights except in accordance with the princi ples of fundamental justice. To show a cause of action based on a violation of section 7 it is therefore necessary to show that there has been a failure to comply with the principles of fundamen tal justice. There has been some difference of judicial opinion as to whether the words "the principles of fundamental justice" impose only procedural requirements or standards or whether they also include substantive requirements or standards of justice. See, for example, Reference Re Section 94(2) of the Motor Vehicle Act (British Columbia) (1983), 19 M.V.R. 63 (B.C. C.A.); R. v. Randall et al. (1983), 58 N.S.R. (2d) 234 (N.S. S.C. A.D.); and The Queen v. Hayden, decision of the Manitoba Court of Appeal, October 5, 1983, as yet unreported. It is not necessary to take a position on this difficult question at this time. The respondents' statement of claim makes no refer ence to a failure to satisfy the principles of funda mental justice in either a procedural or a substan tive sense. In argument counsel for the respondents clearly disavowed any reliance on principles of fundamental justice in a procedural sense. They invoked a substantive notion of fundamental jus tice, but when pressed, they were unable to point to any substantive requirement or standard of fundamental justice that had been denied by the decision to permit the testing of the cruise missile. In effect, they asserted that an infringement of the right to life or the right to security of the person is per se a denial of substantive fundamental justice, a proposition that in my opinion is simply unten able. To my mind this is fatal to their action. In view of the submissions of counsel for the respond ents it is clearly not a defect that can be cured by amendment or further argument in law.

For the foregoing reasons I would allow the appeal and set aside the order of the Trial Divi sion. I would allow the appellants' application,

strike out the statement of claim and dismiss the action, with costs in this Court and in the Trial Division.

* * *

The following are the reasons for judgment rendered in English by

MARCEAU J.: I know that my opinion as to the merits of this appeal and its validity does not differ from that of my brother Judges, and the reasons on which I base my decision are no doubt, at least in part, the same as theirs. Nevertheless, in view of the importance of the decision and the interest aroused by it I feel that, despite the duplication that will necessarily result, I should in these rea sons review briefly but as clearly as possible the way in which I arrived at my conclusion.

It is first necessary, of course, to define the questions raised by the appeal and the approach that should be taken in considering and responding to them. Although this is only a preliminary step, it should not be underestimated.

The appeal is from a trial level decision which dismissed a motion by the defendants, submitted pursuant to Rule 419(1)(a) of the Federal Court Rules, to strike out forthwith the statement of claim filed to commence the action, on the ground that it disclosed no reasonable cause of action. 9 It is traditional to view with caution a motion of this kind, which seeks to close the door to a plaintiff at the very first stage of his action. Not only must the judge ascertain whether a reasonable cause of action exists on the assumption that all the facts alleged are true, however unlikely they may seem, but the very notion of a "reasonable cause of action" must be given its widest breadth and the judge must strive to identify its fundamentals without regard to deficiencies or defects in draft ing or obscurities and ambiguities in wording. This

9 Rule 419(1)(a) reads as follows:

Rule 419. (1) The Court may at any stage of an action order any pleading or anything in any pleading to be struck out, with or without leave to amend, on the ground that

(a) it discloses no reasonable cause of action or defence, as the case may be,

is why the case law, in connection with Rule 419(1)(a), has from time to time referred to the "scintilla" test mentioned by the Judge here in his decision [at page 432], and has occasionally spoken, as he does too [at page 436], of a "germ" of a cause of action being sufficient. This is also why appeal judgments have often sought to give the trial judge greater discretion in deciding whether there is a sufficiently stated and suf ficiently reasonable cause of action to allow the proceeding to go forward. Should this strong tradi tion in our jurisprudence influence the disposition of the appeal at bar? The question must be addressed at the outset, for the answer will neces sarily have a bearing on the way in which the substantive matters at issue are examined.

It seems clear that the motion which was before the Trial Judge was not of the type which has given rise to the judicial tradition just mentioned. This was in fact a case in which the doubt as to the existence or non-existence of a cause of action depended not on the insufficiency of the allega tions in the statement of claim, as generally hap pens, but on the validity or non-validity of particu lar legal propositions the elements of which were already accepted and consideration of which did not in any way require that, first, facts be estab lished or a trial held. The principal proposition put forward by the defendants was that the impugned decision, because it was a political decision taken by the Government of Canada in accordance with its executive powers, was not subject to review by the courts: this involves a pure question of law; 10 and the alternative proposition was that, in any case, the statement of claim did not show how the impugned decision could be detrimental to consti- tutionally-guaranteed rights: this again is a ques-

10 The learned Judge explained this clearly at the start of his analysis [at p. 433]:

The very fundamental contention advanced on behalf of the defendants for striking out the plaintiffs' statement of claim is that the decision to permit the testing of the cruise missile in Canada was one made by the Government of Canada in its executive capacity based upon policy and expediency and as such is not subject to control or interfer

e ence from the judicial branch.

tion of law in so far as the interpretation to be given to certain provisions of the Canadian Charter of Rights and Freedoms is concerned. The defendants were naturally contending that the non-existence of the right of action as exercised was obvious—otherwise they could not have relied on Rule 419(1)(a)—but this obviousness was dependant on their legal submissions being recog nized as valid. At that point the Judge did perhaps have a discretion to rule that the questions raised could be more fully considered at a later stage, possibly under Rule 474 which provides for a determination by the Court before trial of any point of law relevant to the decision of the matter;" but once he undertook to consider the motion on its merits, he was no longer concerned with saving the action and his conclusions in no way involved the exercise of a discretion. 12

The Court therefore does not have to view the matter as if it were reviewing the exercise by the trial judge of his discretion. It does not have to define the questions for solution in terms of the decision rendered. It has to rule directly on the argument of inadmissibility raised by the motion in respect of the action as instituted.

This action, we know, is set forth in terms that are relatively straightforward. In it, the plaintiffs, a group of organizations and unions, are attempt ing to convince the Court to intervene to prevent the carrying out of the Cabinet decision authoriz ing Cruise missile testing, on the ground that this decision is unconstitutional because it was made in breach of rights guaranteed to them by the Consti tution. It is, of course, through the conditions required for such an attempt to have any chance of succeeding that one can more easily define the legal questions raised by the motion to dismiss, since the very purpose of such a motion is that it

11 Although Rule 474 would appear to be better suited to the case of an incidental point of law that emerged or that was clarified during a proceeding than to a fundamental point of law on which the only possible success of the action instituted clearly depends from the outset.

12 The situation was similar to that which occurred in The Attorney General of Canada v. Inuit Tapirisat of Canada et al., [1980] 2 S.C.R. 735.

be acknowledged that those conditions are not present.

Defining in general terms the conditions required for the action of the plaintiffs to be admissible presents no difficulty. The first condi tion is that the decision impugned be in itself subject to being examined and reviewed by the Court. The second is that the constitutional rights referred to be of such a nature that they can be injured by a decision of the kind in question. The third, that the allegations on the basis of which it is expected to be shown that there was in fact a denial of rights be sufficiently serious to merit examination, discussion and trial. These three con ditions are equally necessary for the action as instituted to have a cause which makes it admis sible, but the three clearly are not of equal implication. It may be necessary to determine whether the three conditions are met, but it is advisable to begin with the third one, which is the narrowest and which presents the fewest pitfalls and problems: the requirements of judicial restraint seem, at least at first sight, to require it.

1. THE SUFFICIENCY AND VALIDITY OF THE ALLEGATIONS MADE IN SUPPORT OF THE CLAIM.

The plaintiffs indicate in paragraph 7 how the impugned decision actually affects the fundamen tal rights guaranteed to them by the Constitution. They speak of a violation of their collective rights, specifically their right to security of the person, and they explain that the Cruise missile, if devel oped and adopted as a military weapon, could undermine the possibility of a disarmament agree ment because of the detection problems which it creates, so that the effect of its development could be to prompt an escalation of the arms race. They also state that testing will cause a greater U.S. military presence in Canada which could increase the likelihood that the Country will be the target of a nuclear attack.

Thus, taking the allegations of the statement of claim literally, it can be seen that the plaintiffs speak of a threat to their lives, liberty and espe cially their security, as the result of a dangerous

situation which would only be future and hypo thetical in nature and would depend essentially on the possible reaction of a foreign power. Are such allegations sufficient in themselves to meet the third of the conditions stated above for the action to be given a reasonable cause? This would seem to me very difficult to contend. The function of the judiciary is, in principle, to state the law applicable to a present, not purely contingent and future, set pf circumstances, on the basis of facts the exist ence of which is at least probable, not merely possible and hypothetical, in order to resolve an issue between present and compellable parties, not those beyond its jurisdiction. It is impossible to think that the courts can be called upon to deal with mere potential situations, that they are en titled to base their conclusions and directives on speculations, assumptions and conjectures coupled with hopes and expectations, and that they have the means to make absent persons subject to their orders. (See on these points the observations of Lord Denning M.R. in Blackburn v. Attorney- General, [1971] 2 All E.R. 1380 (C.A.).)

I am not entirely persuaded, however, that the manifest inadequacy of the allegations of the state ment of claim as worded does not result from defects in presentation and drafting which might be corrected. Thus, for example, the objection based on the fact that the breach of rights would be caused by a foreign power rests on inadequacies of wording, for what is actually alleged as causing an infringement of rights is not the act of aggres sion by the foreign power itself, it is the creation of a situation that could cause, that could lead to an act of aggression by the foreign power. If the emphasis was placed on a breach of the right to security, it is undoubtedly because what was con templated was the creation of a state of vulnerabil ity, not the nuclear attack itself. Which, inciden tally, makes it possible to limit the strength of the objection that the causal link between the impugned decision and the denial of rights would be too weak, indirect and distant to be seriously considered. Thus, also, the reference to the collec tive rights of the plaintiffs would appear to bè the result of a mere technical deféct, as the intention clearly was not to refer to the rights of the groups qua groups, but most probably was to present the plaintiffs as representatives of their members, acting collectively on their behalf.

Moreover, the sufficiency of the allegations of a statement of claim to establish the existence of a cause of action is, as noted above, precisely what has always been regarded as being within the discretion of the trial judge to appreciate in exam ining a motion under Rule 419(1)(a), and the Judge here, while emphasizing the inadequacy of the allegations before him, did not feel bound to consider them as devoid of all meaning. It is no doubt true that in order to refer to Rylands et al. v. Fletcher (1866), Law Rep. 1 Ex. 265; (1868), Law Rep. 3 H.L. 330, and the theory of hazardous activities, thus evoking the possibility of an acci dent during a test, the learned Judge not only had to read between the lines of the statement of claim, but to add something that was not there. In my opinion, however, this is not a sufficient reason for finding that his overall conclusion was without foundation and that his discretion was manifestly wrongly exercised.

I would therefore not allow this appeal solely on the basis that the allegations of the statement of claim supporting the contention that the impugned decision in fact had the effect of violating the rights of the plaintiffs were manifestly frivolous and vexatious.

2. THE POSSIBILITY THAT SECTION ,7 OF THE CANADIAN, CHARTER OF RIGHTS AND FREE - DOMS BE GIVEN THE INTERPRETATION SUG GESTED.

Determining whether this second condition required for the action to be admissible is present involves a pure question of law, the solution of which can only be objective. This can readily be seen by looking more closely at what is involved.

First, let us re-read section 7 of the Charter in both its English and French versions, since both are equally authoritative (section 3, Schedule A, Canada Act, 1982 (U.K.) 1982, c. 11, and section 57 of Schedule B, entitled Constitution Act, 1982):

7. Everyone has the right to 7. Chacun a droit à la vie,

life, liberty and security of à la liberté et à la sécurité de the person and the right not sa personne; it ne peut être to be deprived thereof except porté atteinte à ce droit qu'en in accordance with the princi- conformité avec les principes

pies of fundamental justice. de justice fondamentale.

The plaintiffs contend that the rights to life, liberty and security of the person guaranteed to them by section 7 of the Charter were breached by the impugned decision because of the provocative, therefore dangerous, effect that testing the Cruise missile may have, and also because of the greater vulnerability which would be created for Canadi- ans in general, and so for them, as a result of these tests. For such a contention to be logically tenable, the rights conferred by section 7 must necessarily be rights that can be affected by any government decision with direct or indirect, immediate or future, consequences having a negative impact on the life, liberty or security of an individual. In other words, it would be necessary to read the provision as making life, liberty and security of the person the subject of independent, individual rights, which in themselves would be in principle inviolable. I say "in principle" because, of course, no one would ever think of arguing that these rights could be absolute, and the provision itself speaks of possible infringements so long as they are imposed "in accordance with the principles of fundamental justice". The plaintiffs, however, do not speak of encroachments made without regard to some principle of fundamental justice: they argue that the decision is in itself an infringement of their rights to life, liberty and security of the person.

I simply do not see how it is possible for section 7 of the Canadian Charter of Rights and Free doms to have the meaning and scope necessarily implicit in the plaintiffs' contention. To begin with, the provision does not create several rights. While the English version raises a slight doubt in this regard, because of the repetition of the word "right" and the use of the conjunction "and", the French version, to me, admits of no doubt: only a single right is in question, and that right cannot be denied except in accordance with the principles of fundamental justice. Second, in order for concepts as disparate as those of life and liberty, and that of security of the person, a concept of a completely different order, to be joined and together made the subject of what is designated as a right, the word "right" must be taken in a very special sense which is further 'confirmed by the French title of the section, which uses not "droit" but "garantie". It

is indeed the title of the French version, "Garan- ties juridiques", which to me, makes the meaning clear, for it says exactly what it is. The purpose of section 7 was not to create positive rights in the ordinary sense of the word, that is rights with a determinate or determinable content giving rise to the possibility of specific claims; the purpose of section 7 was to "constitutionalize" guarantees against arbitrary action by public authorities in the exercise of powers capable of affecting the citizens in their person. By speaking of the "right to life, liberty and security of the person" as a whole, and guaranteeing that this right will always be protected by the principles of fundamental jus tice, the provision is directly in line with paragraph 1(a) of the Canadian Bill of Rights, which itself was meant to confirm long-standing common law practice regarding procedural guarantees. (As to this see Miller et al. v. Her Majesty The Queen, [1977] 2 S.C.R. 680; 70 D.L.R. (3d) 324; see also Re Potma and The Queen, 41 O.R. (2d) 43 (Ont. C.A.).)

I said "in line with" to emphasize that, in my opinion, this is not merely a restatement. It can be assumed that section 7 really has a renewed mean ing, not only because as a constitutional provision it is now unassailable, but because as a provision of the Charter it has to be given a meaning that makes it applicable to Parliament and to govern ments, 13 not merely to bodies exercising judicial, quasi-judicial or, as has been true for some time, administrative powers. It may readily be admitted that the section 7 protection can be extended to the content of decisions made by public authorities, not merely to the manner in which those decisions were made, and this is what the British Columbia Court of Appeal has just held in Reference Re Section 94(2) of the Motor Vehicle Act (British

1 ' As required by subsection 32(1), which reads as follows: 32. (1) This Charter applies

(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and

(b) to the legislature and government of each province in respect of all matters within the authority of the legisla ture of each province.

Columbia) (1983), 19 M.V.R. 63 (B.C. C.A.); but it will never be possible, it seems to me, to give the provision as it stands any higher mission than that of protecting the life and the freedom of movement of the citizens against arbitrary action and despot ism by people in power, against actions by public authorities which would be directly in conflict (or perhaps only make it possible for there to be a conflict) with the general sense of fair play, justice and equity.

My conclusion on this point, therefore, is firm: the right to life, liberty and security of the person guaranteed to individuals by section 7 of the Canadian Charter of Rights and Freedoms is not a right which could have been affected by the impugned decision for the reasons put forward in the statement of claim. There is nothing arbitrary in that decision, and no one suggests that it was made without regard to any principle of funda mental justice. It follows from this that the plain tiffs' criticism has no legal basis, that their state ment of claim discloses no verifiable ground of challenge. There is accordingly no cause of action. The defendants' motion to dismiss should have been allowed on this basis alone. The appeal is undoubtedly valid.

If the circumstances were not so exceptional, I would, of course, go no further. However, most of the argument, both at the trial and on appeal, turned on the existence or non-existence of the first and most fundamental condition required for the action to be admissible—namely, that the Court has the power to review and interfere with the impugned decision—and it is this aspect of the case which first aroused public interest and attracted attention. It does not seem to me quite satisfactory to dispose of the appeal without expressing any opinion on this constitutional ques tion of major significance, especially as another attempt may well be made tomorrow to present the problem again, taking care to do so more effectively and in a more attractive light. For this reason, it is better to pursue the analysis and to consider whether the first condition is met.

3. THE POWER OF THE COURT TO REVIEW AND CONTROL THE IMPUGNED DECISION.

The principal submission of the appellants is that the Cabinet's decision to authorize Cruise missile testing is a decision which in itself, by virtue of its nature, its origin and its content, cannot be questioned in a court of law. The propo sition is strictly one of law, and of absolutely fundamental law, since it involves the basic princi ples of the division of powers and the function assigned to the courts in the constitutional system of Canada. This proposition, which the learned Trial Judge discussed at length before rejecting it, must be examined in terms of the reasons advanced to support it, for it rests on the existence of a limitation inherent in the judicial power, which one would not even think of considering if not obliged to do so by factors that result, so to speak, from the very nature of things as one sees them.

The first reason given in support of the argu ment that the decision is in itself not "justiciable", not subject to being questioned in the courts, is that it is a "political decision". Such a decision, it is said, under the traditional rules of the Constitu tion belongs to the exclusive discretionary power of the Crown, which today is the Governor General in Council, the government, and it is subject to criticism by Parliament and, eventually, by the electorate, but not by courts of law. It is of the very essence of a democratic system for decisions of this kind to be left to the people's representa tives, not to judges holding their appointments during good behaviour, and the principle of the separation of powers—which, though it has never in practice been fully achieved in our system, has nonetheless always been one of its fundamental influences—particularly requires that this should be so: just as it would be intolerable for the political arm of government to interfere in judicial decisions, so the judiciary cannot be allowed to descend into the political arena, it is repeated, using the forceful comments made to that effect by O'Sullivan J. in Balderstone et al. v. The Queen et al. (an unreported decision of the Manitoba Court of Appeal dated September 12, 1983). And, to complete the argument, it is emphasized that the courts are not equipped, and their members not

trained, to exercise any authority in political mat ters, and they have indeed always wisely refrained from doing so.

Thus, the arguments presented to the effect that a political decision is not reviewable in the courts—I have only given the gist of these argu ments, but I have tried to summarize them accu- rately—appeal to tradition, the principles on which government is organized, democratic necessity, convenience, practicality and precedent. The ver satility and weight of these arguments are obvious: but I have not in the final analysis been persuaded by them.

First, I do not really see what this concept of "political decision" means exactly in the context of the proposition put forward. When the word "political" is used to qualify the words "matter" or "subject", it is naturally assumed to mean "relat- ing to the government of the nation and left to the judgment of those who actually govern"; but when it is used to qualify the word "decision", its mean ing is not so easily determined. Of course, one can think of acts of authority based on considerations of policy and expediency, but does the category include only decisions based exclusively on such considerations, or those largely based on them as well?—and in any case, in practice and for our purposes, how is one to identify the decisions that should be classified as political without undertak ing some analysis of their content and their basis? It is clear that a decision cannot be said to be political merely because of where it originates, and the fact that the decision was taken by the Cabinet is of no assistance, particularly when the Charter has been expressly made applicable to the govern ment (section 32). On the other hand, I find it hard to share entirely in the views of those who claim that allowing a political decision to be ques tioned in the courts is necessarily contrary to the essence of a system of democratic government, the value of which rests in large measure on the existence of a balance resulting from a separation of powers. There is no suggestion of giving the courts the responsibility of making political deci sions, and thus, of having the judiciary play the role reserved, by tradition, the Constitution and common sense to the executive power. It is evident

that a political decision must continue to be made by the government. But a decision involves a choice between several alternatives, and the only function which the courts can be called on to perform by actions like that at bar is to determine whether certain of these alternatives are available. Of course, the absolute sovereignty traditionally attributed to Parliament and the full and entire authority of the government are restrained (which they were already, in any case, by all the principles of civilization), but this should not be a cause for alarm as the Charter is part of the Constitution on which this supremacy and authority are based. The courts only become involved when performing their duty of ensuring that the Constitution is observed. The traditional role of the three authori ties, legislative, executive and judicial, is accord ingly not altered, and the people's representatives in particular continue to be responsible to the electorate for the choice which they make between the various courses of action authorized by the Constitution. Finally, the fact that the courts have traditionally avoided being dragged into reviewing political decisions results from their having no basis and no criteria at their disposal for doing so: but does not the Charter provide a basis and criteria which have not so far existed?

The Trial Judge was not willing to accept the contention that the decision at issue cannot be challenged in the courts solely on the ground that it was a political decision, and I do not think that he manifestly erred in this conclusion.

However, the appellants take care to submit a second argument as to why the decision at issue is not reviewable in the courts. They submit that it is a political decision which relates to the field of national defence and, to some extent, that of exter nal relations, the decision having been made in accordance with an international agreement be tween Canada and the United States. In support of this proposition—a very narrow one compared with the former one, since it applies only to certain specific and special categories of political deci- sions—they seek to make arguments which again rely on legal tradition, constitutional principles, practical convenience and simple common sense.

Here I think their approach cannot be rejected. There are indeed arguments which, in my view, provide convincing support for the proposition put forward by them.

(a) The argument based on legal tradition and constitutional principles can, I think, be stated as follows.

It is clear that the Constitution of Canada forms a whole, and that the Canadian Charter of Rights and Freedoms was adopted not to be seen and considered in isolation, but as forming part of this whole. Now then, one of the most essential parts of the "whole" is the existence of the royal prerogative.

It is well known that, historically, the royal prerogative is what has been left to the King from the wide discretionary powers he enjoyed at the time he governed as an absolute monarch, powers which the great statutes of the constitutional histo ry of England—among which those expressly referred to by the learned Judge in his decision, the Bill of Rights 1688, 1 Will. & Mar. Sess. 2 c. 2 and the Act of Settlement 1700, 12 & 13 Will. 3 c. 2—were aiming at defining and containing by proceeding to solemn declarations of the funda mental laws of England. The idea that certain privileges, freedoms and powers remained directly associated with the dignity and responsibility of the Crown persisted even after the royal authority had become totally subject to the supremacy of Parliament, except that these royal prerogatives were then seen as arising out of the common law and their content, not defined a priori, became subject to the will of the elected representatives of the people, free to intervene at any time to clarify their content or limit their extent. A host of stat utes were adopted over the years to regulate areas which had until then been matters of royal discre tion, but certain privileges and powers—including most of those connected with the supreme com mand of the armed forces, national defence and the conduct of external affairs (including declara tions of war)—have always been left intact. It is these privileges and powers which today make up the royal prerogative, which privileges and powers have continued to be exercised apart from and independently of Parliament—in the sense that, although they continue to exist by the will of

Parliament, they do not derive from it—and which, once it was established that the King would act only on the advice of his Ministers, became in reality the privileges and powers of the govern ment, and so of the Cabinet. (On all these points, see Halsbury's Laws of England, 4th ed., Vol. 8, pars. 889 et seq.) There is no doubt that the royal prerogative so defined and characterized exists in Canada in the same way as in England, and that The British North America Act, 1867, 30 & 31 Vict., c. 3 (U.K.) [R.S.C. 1970, Appendix II, No. 5], did not detract from or in any way affect its content and extent (see Re Bateman's Trusts (1873), L.R. 15 Eq 355; The Liquidators of the Maritime Bank of Canada v. The Receiver-Gen eral of New Brunswick, [1892] A.C. 437); just as there is no doubt that, in principle, neither in Canada nor in the United Kingdom can the royal prerogative be limited except by clear and express statutory provision (see Nadan v. The King, [1926] A.C. 482 (P.C.); Jennings v. The Township of Whitby, [1943] O.W.N. 170). To complete the picture, it only remains to determine the relation- 1 ship between the judiciary and the royal prerogative.

In R. v. Chandler and Others, the Lord Chief Justice, Lord Parker, rendering the judgment of the Court of Criminal Appeal, [1962] 2 All E.R. 314 (C.C.A.), summarized as follows the state of the authorities on the powers of courts to review the exercise of an act of prerogative relating to the area of national security and the command of the armed forces (at page 319):

A number of matters relating to the safety of the realm and the command of the royal forces are now regulated by statute. In so far, however, as this is not the case, the powers in that regard are at common law in the prerogative of the Crown acting on the advice of its servants. The powers so left to the unfettered control of the Crown include both in time of peace and war all matters relating to the disposition and armament of the military, naval and air forces .... In practice, it is difficult to see how any person, whether claiming to be an expert or not, could give evidence of any weight on these matters, since of necessity he could not be fully informed. It is not, however, in our view, merely a matter of the weight to be attached to such evidence. In our opinion, the manner of the exercise of such prerogative powers cannot be inquired into by the courts, whether in a civil or a criminal case. As was said by Lord Parker of Waddington in The Zamora, ([ 1916] 2 A.C. at p. 107)

"Those who are responsible for the national security must be the sole judges of what the national security requires. It would be obviously undesirable that such matters should be made the subject of evidence in a court of law or otherwise discussed in public."

It was objected that that statement related only to a time of war, but we see no reason in principle why it should be so limited. Indeed, Viscount Simon, L.C. in Duncan v. Cammell Laird & Co., Ltd., ([1942] A.C. at p. 641) cited the passage in question with approval in relation to the general power of ministers whether in war or peace to claim Crown Privilege.

These propositions by Lord Parker were not disputed by any of the law Lords in the House of Lords, to which the case was appealed, [1962] 3 All E.R. 142 (H.L.). It is true that in approving them, Lord Devlin felt he should note (at page 158) what Lord Warrington had said in an earlier case, 14 namely that in exceptional circumstances the courts could still intervene to correct excesses or abuses in cases of an improper exercise of a prerogative power. However, the learned Lord said nothing more on the point, because there was no question in that case of an abuse of power, and, as I understand the text, the reservation was certainly not intended to deviate from the traditional and universally accepted doctrine set forth inter adia by the Court of Appeal in the case of China Naviga tion Company, Limited v. Attorney-General, [1932] 2 K.B. 197 (C.A.), to which all the other learned Lords referred specifically as to a leading case, and where we find, in the speech of Lord Slesser, the following especially clear and cogent passage (at page 242):

In Chitty on Prerogatives of the Crown, 1820, p. 6, it is said: "In the exercise of his lawful prerogatives, an unbounded discretion is, generally speaking, left to the King"; and at p. 44: "The King is at the head of his army and navy, is alone entitled to order their movements, to regulate their internal arrange ments .... as may seem to His Majesty most consistent with political propriety." According to Blackstone, Comm. i., 251: "In the exertion therefore of those prerogatives, which the law has given him, the King is irresistible and absolute, according to the forms of the constitution. And yet, if the consequence of that exertion be manifestly to the grievance or dishonour of the kingdom, the Parliament will call his advisers to a just and severe account."

Prerogative is "the discretionary power of acting for the public good"; Locke on Government, 2 para. 166, quoted by Blackstone, Comm. i., 252. "The King has the sole power of

14 In re A Petition of Right, [ 1915] 3 K.B. 666 (C.A.).

raising and regulating fleets and armies": ibid. p. 262. He is "first in the military command, within the kingdom": ibid. p. 262. It is true that the prerogative is created and limited by the common law and that the sovereign can claim no preroga tives except such as the common law allows: Comyns' Digest, "Prerogative A." But in so far as such prerogative includes the government of the army, the Court cannot consider the proprie ty of its exercise. "Upon any doubtful point of prerogative the Crown and its Ministers must .... bow to the decision of the legal tribunals": Halsbury's Laws of England, vol. vi., p. 382. But, in so far as in my view the powers here under consider ation are within the prerogative, the function of the Court is exhausted in so deciding. [My emphasis.]

Thus, at the time the Canadian Charter of Rights and Freedoms was adopted, the royal pre rogative, the origin, content and significance of which have just been recalled, was an essential part of the "Canadian constitutional whole" into which the Charter was being incorporated. Is it conceivable that merely by making this Charter part of the constitutional whole, and without a clearer indication of their intention, the Canadian Parliament, by its resolution and address to the Queen, and the British Parliament, by legislating to give effect to the request by Canada, intended to depart from all this legal tradition and even put an end to it, by removing the essential aspect of the royal prerogative, namely that it be exercised autonomously and, at least in itself, independently of the courts? It does not seem possible that it be so. The entrenching of the Canadian Charter of Rights and Freedoms could not change the Consti tution on such a fundamental point in such an indirect manner. If the act is really an act of prerogative in the sense that it remains within the limits of the prerogative, the courts have no power to interfere with it. The Canadian Charter of Rights and Freedoms, introduced to provide a solemn guarantee that private rights and interests will be respected, did not affect the exercise of the royal prerogative powers, especially those associat ed with defence and national security, powers the continued existence of which is attributable strictly to considerations of pure national and collective interest.

(b) As to the argument of practical convenience and common sense, it could not, in my opinion, be better expressed than it was by the Supreme Court of the United States in Chicago and Southern Air

Lines v. Waterman Steamship Corporation, 333 U.S. 103 (1947), per Jackson J. (at page 111):

The court below considered, and we think quite rightly, that it could not review such provisions of the order as resulted from Presidential direction. The President, both as Commander-in- Chief and as the Nation's organ for foreign affairs, has avail able intelligence services whose reports are not and ought not to be published to the world. It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret. Nor can courts sit in camera in order to be taken into executive confidences. But even if courts could require full disclosure, the very nature of executive decisions as to foreign policy is political, not judicial. Such decisions are wholly con fided by our Constitution to the political departments of the government, Executive and Legislative. They are delicate, com plex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are deci sions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry. 15

These arguments, based on law and conve nience, in my view, lead to the conclusion that the first and most fundamental condition for the action of the plaintiffs to have a cause which would make it admissible does not exist any more than the second. Not only could the impugned decision not, in the circumstances mentioned, have infringed the constitutional rights guaranteed to the plaintiffs by section 7 of the Constitution, but as it was made in the exercise of a power which is clearly within the ambit of the royal prerogative, a fact which is not in dispute, the decision was not in itself subject to being reviewed and controlled by the Court.

That at some length is the analysis which led me to the conclusion that this appeal should succeed and that the trial judgment should be set aside. The motion of the defendants to strike out the

15 Reference might also be made to the observations of'U.S. judges in Holtzman v. Schlesinger, 484 F.2d 1307 (1973) (U.S. Court, of Appeals); Atlee v. Laird, 347 F Supp. 689 (1972) (affirmed, 411 U.S. 911 (1973)); Luftig v. McNamara et al., 373 F.2d 664 (1967); and of Lord Denning M.R. in Blackburn v. Attorney-General, [1971] 2 All E.R. 1380 (C.A.).

statement of claim and dismiss the action 'now appears to me to be entirely valid and should be allowed. I would render judgment accordingly.

* * *

The following are the reasons for judgment rendered in English by

HUGESSEN J.: This matter comes to us as an appeal from a decision of Cattanach J., dismissing a motion of defendants, pursuant to Rule 419(1), to strike out the statement of claim and to dismiss the action.

From a reading of the reasons delivered by the learned Trial Judge, it is quite clear that the matter was presented to him on the basis that the decision of the defendants to permit the testing of the cruise missile in Canada, which forms the basis of the plaintiffs' action, was a Government deci sion of a political nature which no court was competent to review. His dismissal of the motion was based solely on his reading of the Charter of Rights as being [at page 435]

... applicable to the Government of Çanada in the event of an executive decision being taken which is in breach of the rights and freedoms guaranteed by the Charter.

On the hearing of the appeal, the various issues of law raised on a simple reading of the plaintiffs' statement of claim were more thoroughly can vassed. In my view, it is not necessary for us to follow the learned Trial Judge onto the difficult terrain to which the parties led him or to decide what, if any, categories of executive decision are beyond the reach of judicial review under the Charter. By the same token, we do not need to determine whether it is necessary or desirable to import into Canada the "Political Question Doc trine", which seems to have given rise to much difficulty in the United States.

As it appears to me, this appeal turns on two questions, namely, whether the statement of claim alleges a breach of any of the plaintiffs' Charter- protected rights and, if so, whether the remedy sought is directed against the persons responsible for that alleged breach. In my view, both questions must be answered in the negative.

The protected rights which the plaintiffs invoke are those set out in section 7 of the Charter, namely, the rights to life, liberty and security of the person. It is clear, in my opinion, that such rights are not and cannot be absolute. We all must die, and many are, at one time or another in their lives, imprisoned or made insecure. The very text of section 7 accepts as a premise that the principles of fundamental justice are not incompatible with a deprivation of life, liberty or security of the person. That being so, it is not enough for the plaintiffs to allege, as they do here, a simple (and anticipated) deprivation. They must also allege a breach of the principles of fundamental justice. Absent that alle gation there is no proper claim before the Court. Since counsel for the plaintiffs, when pressed, was quite unable to suggest which principle of funda mental justice had been breached, there are no grounds for thinking that the defect could be cured by amendment.

There is another fatal flaw in the plaintiffs' claim: the alleged breach of their rights may be rendered more probable by the defendants but it is clear that if such breach occurs this will be the result of the activities of others who are not parties to this action. The Charter cannot have such a reach. If it did, the timorous citizen who feared a mugging on the street might enjoin the police to provide him with a continuous escort. Contrari wise, a bank customer fearful of being caught in a crossfire during a holdup might enjoin the police never to respond to bank alarms. In my view, section 32 makes it plain that the rights which the Charter enshrines are protected against direct interference by domestic governments in Canada. Breaches of Charter rights by private citizens acting , without official sanction or by foreign powers operating outside the sphere of our domes tic law are simply not justiciable under the Charter, although they may, of course, give rise to other remedies.

For these reasons, I am of opinion that the appeal should be maintained. The motion to strike should be allowed. The plaintiffs' statement of claim should be struck out and the action dis missed, the whole with costs.

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