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Canada tests the Charter

John Pendergrast — November 1983

On July 20 Operation Dismantle, along with 26 other peace organisations, filed a suit in Federal Court requesting a temporary injunction to stop testing of the cruise missile in Canada. In the suit Operation Dismantle argued that the tests would violate Article 7 of the Charter of Rights and Freedoms. The federal government responded by seeking dismissal of the suit as “frivolous and vexatious.” Thus began a legal battle that will almost certainly lead to the Supreme Court of Canada, perhaps more than once.

The issue, as the Government points out, involves more than the question of whether or not to test the cruise missile. At stake is the relation between Parliament and the judiciary, and the extent to which political decisions can be weighed against constitutional guarantees. When Justice Alex Cattanach of the Federal Court ruled on September 15 against the government’s plea for dismissal, it was on the grounds that the establishment of a Constitution with a Charter of Rights and Freedoms had in fact reduced the powers of Parliament, making it answerable to the overriding provisions of the Constitution, as interpreted by the courts.

The government immediately appealed the decision, and the matter was accordingly transferred to the Federal Court of Appeals, which received submissions on October t I and 12. As of October 24 the court had reserved its judgement.

Up to this point, it should be noted, the suit for a temporary injunction to halt cruise testing has not been debated on its own merits. All of the discussion to date has been over whether or not the courts have jurisdiction to hear the case at all. Furthermore, according to a spokesperson of Operation Dismantle, a split decision by the live-man Court of Appeals will probably be appealed by the losing side, whereupon the case will move to the Supreme Court of Canada. If the Supreme Court rules that the suit does indeed fall within the jurisdiction of the courts then it will revert to federal Court for decision. If the Federal Court rules in favour of the suit, than a temporary injunction will be issued immediately, pending the preparation of a more elaborate case for a permanent injunction. Of course the government might appeal this decision, but the spokesperson for Operation Dismantle felt that this was unlikely, since the injunction would. remain effective during the appeal and since the suit for a permanent injunction would keep the case open anyway.

Given the labyrinthine nature of the legal process, time is obviously rather short, with testing scheduled to begin in January. Accordingly Operation Dismantle has requested that the courts expedite the matter, and it is hoped that the suit for a temporary injunction will be heard and decided before Christmas. Should the suit be granted, a more lengthy preparation of the case for a permanent injunction will then be possible.