T-1034-84
Carole Sylvestre (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Denault J.—Quebec City, Novem-
ber 21, 1984; Ottawa, January 22, 1985.
Constitutional law — Charter of Rights — Liberty of
person — Plaintiff released from Armed Forces on grounds of
homosexuality — Claiming damages and quashing of dismis
sal for discrimination — Crown moving to strike pleadings —
Right to liberty of person and freedom of conscience allegedly
infringed — Defendant invoking royal prerogative — Pre-
Charter cases holding relationship between Crown and mili
tary personnel precluding remedies in civil courts — Sexual
orientation not subject of fundamental freedom or legal right
recognized by Charter — Provisions in Armed Forces' order re
sexual orientation, different from those applying to other
Canadians, to be reviewed on merits — Whether Charter
imposes new legal limits on exercise of royal prerogative still
unclear — To be resolved by Supreme Court of Canada in
Operation Dismantle case — Motion dismissed — Canadian
Charter of Rights and Freedoms, being Part I of the Constitu
tion Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11
(U.K.), ss. 1, 7, 52(1).
Armed Forces — Release — Homosexuality — Release
allegedly discriminatory and illegal — Plaintiff arguing ss. 1
and 7 of Charter infringed — Crown invoking royal preroga
tive — Relying on pre-Charter decision in Gallant holding
relationship between Crown and military precluding remedies
in civil courts — Sexual orientation not subject-matter of
Charter — Provisions in Armed Forces' order re sexual orien
tation, different from those applying to other Canadians, to be
reviewed on merits — Unclear whether authorities followed
standard judicial process or whether service terminated by
mere administrative decision — Supreme Court of Canada
decision in Operation Dismantle will clarify effect of Charter
on exercise of royal prerogative — Motion to strike dismissed.
Practice — Motion to strike pleadings — Armed Forces
Plaintiff suing Crown following release for homosexuality —
Charter — Royal prerogative — Court not satisfied as to
absence of reasonable cause of action — Provisions in Armed
Forces' order re sexual orientation, different from those
applying to other Canadians, to be reviewed on merits — Issue
of legal limits apparently imposed by Charter on exercise of
royal prerogative still unresolved — Motion dismissed —
Federal Court Rules, C.R.C., c. 663, R. 419.
CASES JUDICIALLY CONSIDERED
CONSIDERED:
Gallant v. The Queen in right of Canada (1978), 91
D.L.R. (3d) 695 (F.C.T.D.).
REFERRED TO:
The Queen, et al. v. Operation Dismantle Inc., et al.,
[1983] 1 F.C. 745 (C.A.), reversing [1983] 1 F.C. 429
(T.D.).
COUNSEL:
Suzanne Paradis for plaintiff.
James Mabbutt for defendant.
SOLICITORS:
Jutras & Associés, Drummondville, Quebec,
for plaintiff.
Deputy Attorney General of Canada for
defendant.
The following is the English version of the
reasons for order rendered by
DENAULT J.: This is a motion by the defendant
under section 419 of the Federal Court Rules
[C.R.C., c. 663] to have the plaintiff's action
dismissed on the ground that it discloses no reason
able cause of action.
The plaintiff sued Her Majesty the Queen, the
defendant, following her release from the Canadi-
an Armed Forces on grounds of homosexuality. In
her action the plaintiff alleged that she had been
the victim of discrimination and maintained that
the administrative order that terminated her mili
tary service was [TRANSLATION] "illegal, dis
criminatory, against public policy, null and void".
She accordingly claimed damages and sought to
have the decision that terminated her service in the
Armed Forces quashed. She also asked the Court
to make the following orders:
[TRANSLATION]-TO QUASH the following orders:
—Canadian Forces Administrative Order number 19-20 en
titled: Homosexuality—Sexual Abnormality Investigation.
"Medical Examination and Disposal";
-TO STATE AND DECLARE that section 1, article 15.01, sub-
paragraph 5d of the Queen's Regulations and Orders for the
Canadian Forces is inoperative, inapplicable and unjustified
with respect to the decision of March 2, 1983 made by
Captain P. A. Tinsley; a copy of the said letter being filed in
support hereof as Exhibit P-7.
In support of the motion, counsel for the defen
dant invoked the royal prerogative and maintained
that the plaintiff did not have any remedy in the
civil courts. He argued that the Court had no
jurisdiction to hear this case because a person who
joins the Forces enters into a unilateral commit
ment in return for which the Crown assumes no
obligations. It would thus have no contractual
obligations toward members of the Armed Forcés
and the relations between the Crown and its mili
tary personnel in no way give rise to a remedy in
the civil courts. In support of his position he relied
on Marceau J.'s decision in Gallant v. The Queen
in right of Canada (1978), 91 D.L.R. (3d) 695
(F.C.T.D.), in which the facts were similar to
those in the present case.
The plaintiff contested this motion by invoking
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.)], in particular the right to liberty of the
person (section 7), the right to freedom of con
science (section 2) and the other provisions
designed to protect these rights.
Until the Constitution Act, 1982, in particular
the Canadian Charter of Rights and Freedoms,
came into effect, the relations between Her Majes
ty the Queen and members of the Armed Forces
did not give rise to any remedies in the civil courts.
On this point Marceau J. stated the following in
Gallant, mentioned above, where a former service
man had been released owing to his homosexual
ity, pursuant to the same orders [at pages
696-697]:
Both English and Canadian Courts have always considered,
and have repeated whenever the occasion arose, that the Crown
is in no way contractually bound to the members of the Armed
Forces, that a person who joins the Forces enters into a
unilateral commitment in return for which the Queen assumes
no obligations, and that relations between the Queen and Her
military personnel, as such, in no way give rise to a remedy in
the civil courts. This principle of common law Courts not
interfering in relations between the Crown and the military, the
existence of which was clearly and definitively confirmed in
England in the oft-cited case of Mitchell v. The Queen, [1896]
1 Q.B. 121, was taken over by our Courts and repeated in a
wide variety of situations; see, in particular, Leaman v. The
King, [1920] 3 K.B. 663; Bacon v. The King (1921), 21 Ex.
C.R. 25; Mulvenna v. The Admiralty, [1926] S. L. T. 568;
Cooke v. The King, [1929] Ex. C.R. 20; McArthur v. The
King, [1943] 3 D.L.R. 225, [1943] Ex. C.R. 77, particularly, p.
263 et seq. D.L.R., p. 117 et seq. Ex. C.R.; and Fitzpatrick v.
The Queen, [1959] Ex. C.R. 405.
That decision was rendered before the Constitu
tion Act, 1982 - came into force, however, and
major changes are likely to result from this
legislation.
Under the new Charter no one may be deprived
of liberty of the person "except in accordance with
the principles of fundamental justice" (section 7).
Furthermore, under section 1, the rights and free
doms set out in the Charter are "subject only to
such reasonable limits prescribed by law as can be
demonstrably justified in a free and democratic
society". Finally, subsection 52(1) of the Act pro
vides as follows:
52. (1) The Constitution of Canada is the supreme law of
Canada, and any law that is inconsistent with the provisions of
the Constitution is, to the extent of the inconsistency, of no
force or effect.
In a motion such as the one made by the defen
dant, it is well established that the action should
not be dismissed unless the allegations of fact it
contains, which are taken as established at this
stage of the proceedings, do not disclose any
reasonable cause of action. In case of doubt the
Court will decline to strike out the statement of
claim at this stage in the proceedings and will
allow the plaintiff to try to prove her allegations.
Sexual orientation is not the subject of a funda
mental freedom or legal right recognized in the
Charter, but the provisions on this subject con
tained in the Queen's Regulations and Orders for
the Canadian Forces, which are different from
those that apply to other Canadian citizens, may
be reviewed on the merits.
An analysis of the statement of claim in this
case leaves a serious doubt in my mind that justi
fies me in dismissing this motion. Without regard
to other arguments that might be raised, a reading
of the statement of claim does not indicate wheth
er the authorities followed the standard judicial
process or whether a mere administrative decision
terminated the plaintiffs service, or the circum
stances in which that decision was made. In addi
tion, the new Charter seems to impose new legal
limits on the exercise of the royal prerogative, and
the decision that will be handed down by the
Supreme Court in Operation Dismantle Inc., et al.
v. The Queen, et al., [1983] 1 F.C. 429 (T.D.)
[reversed [1983] 1 F.C. 745 (C.A.)], inter alia,
will undoubtedly shed new light on this question.
For these reasons the motion is dismissed with
costs.
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