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Supreme Court hears cruise case

Roy McFarlane — March 1984

OTTAWA – The Supreme Court of Canada reserved judgement, February 15, on an appeal argued here by lawyers representing a coalition of peace groups and unions. The coalition, brought together by Operation Dismantle, is appealing a lower court decision related to their attempt to obtain an injunction against the upcoming cruise missile tests.

The Supreme Court hearing is the third stage of the first hurdle erected in front’ of the coalition by lawyers for the government. The coalition has yet to be granted permission to present their full case to the courts.

The legal action seeking the injunction was initiated July 20, 1983, one week following the federal government’s decision to test the cruise missile. Citing section 7 of the Charter of Rights and Freedoms, which reads: “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 coalition claimed that the tests would constitute a violation of the right to security for the following reasons:

“(a) the size and eventual dispersion of the air-launch cruise missile is such that the missile cannot be detected by surveillance satellites or on-site inspection thus making verification of the extent of this nuclear weaponry impossible; ,

“(b) with the impossibility of verification, the future of nuclear weapons’ control and limitation agreements is completely undermined as any such agreements become practically unenforceable;

“(c) the testing of the air-launch 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 approximately eight minutes before it reaches its target, a “Launch on Warning” system will be developed 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 further escalating the nuclear arms race, thus endangering the security and lives of all people. “

On August 11, lawyers for the government filed a motion in the court requesting that the coalition’s claim be stricken. As with meetings conducted under Parliamentary procedure (such as Robert’s Rules) this motion required resolution before the case could continue. All arguments and decisions subsequent to the filing of the motion have revolved around whether the coalition’s -claim has any legal basis.

On September 15, Mr. Justice Alex Cattanach presided over the first hearing on the motion. The government’s lawyers contended that the allegations outlined by the coalition presented no reasonable cause for a court action, that the allegations were “frivolous and vexatious,” and that the issues involved were outside the court’s jurisdiction, as the decision to test the cruise was made by cabinet and therefore not reviewable by the court.

At the end of the one day hearing, Justice Cattanach dismissed the government’s motion, finding the coalition’s claim did present reasonable cause for court action. He also stated that the Charter created a new relationship between the. government and the judiciary and that the government’s decision did fall within the realm of the Charter, citing two of its subsections, which read:

“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. .

“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;’”

Government lawyers subsequently appealed. On November 28, the Federal Court of Appeal ruled unanimously on the side of the government and struck down Justice Cattanach’s decision, thereby accepting the government’s motion and striking the coalition’s claim. The basis of their decision lay with the arguments that the coalition’s allegations did not constitute a violation to their right to security and that a court would be unable, even if presented with further argument, to judge whether or not the tests would in effect be a threat to security.

Mr. Justice Louis Pratte, one of the five Appeal Court judges, said in his written statement, “I am of the opinion…that the (coalition’s) 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 constitute an infringement or a denial of the rights and freedoms guaranteed by the Charter. ..

Mr Justice Gerald Le Dain, in his written decision added, “(t)he central issue of the (coalition’s) statement is the effect of the proposed testing’ and availability of the cruise missile on the risk of nuclear conflict. That is manifestly not a question which is judiciable. 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 weighing,”

Although all five justices ruled that a court should not hear arguments on the alleged threat resulting from the cruise tests, a majority (Justices Pratte, Ryan and Le Dain) ruled that the Charter is binding on the cabinet.

On December 20, Chief Justice Bora Laskin granted the coalition the right to appeal the Federal Court of Appeal decision and set February 14’ as the hearing date. On February 14 and IS, coalition lawyers, in their final attempt to have the government’s motion dismissed, reiterated their arguments to the Supreme Court.

Lawrence Greenspon, one of the two lawyers representing the coalition, stated that expert witnesses would be called, if the case was allowed to proceed, to testify to the effect cruise missile testing would have. Gordon Henderson, also representing the coalition, drew the court’s attention back to section 52 of the Charter, quoted earlier by Justice Cattanach, to argue that the Charter was binding on the government.

Having reserved judgement, the Supreme Court can render its decision at any time. If the Supreme Court rejects the Federal Court of Appeal ruling, and with that the government’s motion to strike the coalition’s claim, the case returns to the first level of the legal system; the Federal Court. The coalition will then have the opportunity to argue its case in full.

James Stark, President of Operation Dismantle and originator of the idea of taking the issue to court, conceded that proving the case against the cruise would not be easy. “It will be difficult,” he said. “But, it will not be impossible.”