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Cruise suit sets Charter precedent

Eudora Pendergrast — August 1983

On July 20, Operation Dismantle, a major Canadian peace group, filed a request for an interim court injunction to reverse the recent cabinet decision to permit testing of the U.S. air-launched cruise missile (ALCM) in Canada.

The group was joined in this precedent-setting action by 26 other organizations, including the Canadian Union of Public Employees, the Canadian Union of Postal Workers, the National Union of Provincial Government Employees, the Ontario Federation of Labour, the National Action Committee on the Status of Women, and 21 peace groups and coalitions from across the nation.

According to Operation Dismantle lawyer Lawrence Greenspon, the federal court suit will be based on Article 7 of the Charter of Rights and Freedoms, which guarantees the right to ‘life, liberty and security of person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice.’ Mr. Greenspon and his clients intend to demonstrate that the tests threaten the security of Canadians because they represent an escalation in the arms race. They will also argue that the nature and small size of the cruise make treaties designed to limit its development and deployment impossible to verify.

In a telephone interview just prior to the filing of the suit, Greenspon agreed that this lack of verifiability means that the development and deployment of the cruise will undermine the two-track doctrine currently endorsed by NATO.

Under the two-track doctrine, NATO is supposed to negotiate arms limitation treaties with the Soviet Union, while simultaneously developing and proposing to deploy additional nuclear weapons. These weapons are intended to establish a position of strength from which to negotiate and an arsenal which can be deployed if treaty negotiations fail.

The development and deployment of the ALCM calls into question the validity of this doctrine, because arms limitation treaties are meaningless without the possibility of verification.

Greenspon acknowledges that his clients face an uphill battle, largely because their request breaks new ground in the application of Article 7 of the Charter of Rights and Freedoms. There have been other legal cases based on the application of this section, a few of which have been successful. However, none of these has involved an executive decision of the Canadian government.

The court case will have two stages. The first is the request for a preliminary injunction. If the injunction is granted, it will immediately prevent the Canadian government from pursuing any further action in support of cruise testing until a second stage, a full hearing of the substance of the case, is completed. If the second stage is successful, a permanent injunction against cruise testing would be imposed by the federal court.

When asked about the chances of success, Greenspon noted that the granting of a preliminary injunction depends upon the successful demonstration that the case has some merit and that the interim period before a final hearing could be conducted would result in further costs. The costs in this instance would be the daily expense, borne by Canadian taxpayers, of planning for the cruise tests.

For the purposes of the preliminary injunction, Greenspon and his clients will submit written affidavits by Canadian and U.S. defense and arms experts. At the second stage, defense experts would be called to testify in person.

Operation Dismantle was founded in 1977 in order to promote global referenda on nuclear disarmament. In keeping with this objective, it has helped organize municipal referenda on the nuclear disarmament issue across Canada. In 1982, for example, 132 referenda were held, 76 of which resulted in votes in favour of a mutual and verifiable freeze on the production by the United States and the Soviet Union of nuclear arms.

The organization has 3100 members at present, with more than a dozen branches across Canada. Operation Dismantle’s main office can be contacted in Ottawa at Box 3887, Station C, Ottawa KlY 4M5, or by telephone at (613) xxx-xxxx.

Copies of the statement of claim on which the anti-cruise suit is based are available at the CANDIS office.