Operation Dismantle v. The Queen

Operation Dismantle v. The Queen
Collection
Supreme Court Judgments
Date
1985-05-09
Report
[1985] 1 SCR 441
Case number
18154
Judges
Dickson, Robert George Brian; Estey, Willard Zebedee; McIntyre, William Rogers; Chouinard, Julien; Lamer, Antonio; Wilson, Bertha
On appeal from
Federal Court of Appeal
Subjects
Action
Constitutional law
Courts
Notes
SCC Case Information: 18154
Decision Content
Operation Dismantle v. The Queen, [1985] 1 S.C.R. 441
Operation Dismantle Inc., Canadian Union of Public Employees, Canadian Union of Postal Workers, National Union of Provincial Government Employees, Ontario Federation of Labour, Arts for Peace, Canadian Peace Research and Education Association, World Federalists of Canada, Alberni Valley Coalition for Nuclear Disarmament, Comox Valley Nuclear Responsibility Society, Cranbrook Citizens for Nuclear Disarmament, Peace Education Network, Windsor Coalition for Disarmament, Union of Spiritual Communities of Christ Committee for World Disarmament and Peace, Against Cruise Testing Coalition, B.C. Voice of Women, National Action Committee on the Status of Women, Carman Nuclear Disarmament Committee, Project Survival, Denman Island Peace Group, Thunder Bay Coalition for Peace and Nuclear Disarmament, Muskoka Peace Group, Global Citizens' Association, Physicians for Social Responsibility (Montreal Branch) Appellants;
and
Her Majesty The Queen, The Right Honourable Prime Minister, the Attorney General of Canada, the Secretary of State for External Affairs, the Minister of Defence Respondents.
File No.: 18154.
1984: February 14, 15; 1985: May 9.
Present: Ritchie* Dickson, Estey, McIntyre, Chouinard, Lamer and Wilson JJ.
*Ritchie J. took no part in the judgment.
on appeal from the federal court of appeal
Constitutional law ‑‑ Canadian Charter of Rights and Freedoms ‑‑ Right to life, liberty and security of person ‑‑ U.S. cruise missile testing in Canada ‑‑ Testing alleged to increase risk of nuclear war in violation of that right ‑‑ Motion to strike out ‑‑ Whether or not facts as alleged in violation of Charter ‑‑ Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 24(1) , 32(1) (a) ‑‑ Constitution Act, 1982, s. 52(1) .
Jurisdiction ‑‑ Judicial review ‑‑ Cabinet decision relating to national defence and external affairs ‑‑ Whether or not decision reviewable by courts.
Practice ‑‑ Motion to strike ‑‑ U.S. cruise missile tests alleged to increase risk of nuclear war in violation of s. 7 of Charter ‑‑ Whether or not statement of claim should be struck out ‑‑ Whether or not statement of claim can be amended before statement of defence filed ‑‑ Federal Court Rules, Rules 419(1), 421, 1104, 1723.
This appeal is from a judgment of the Federal Court of Appeal which allowed respondents' appeal from a judgment dismissing their motion to strike out the appellants' statement of claim.
Appellants alleged that a decision made by the Government of Canada to allow the United States to test cruise missiles in Canada violated s. 7 of the Charter . The development of the cruise missile, it was argued, heightened the risk of nuclear war and the increased American military presence and interest in Canada as a result of the testing allegedly made Canada more likely to be a target for nuclear attack. Declaratory relief, an injunction and damages were sought.
Held: The appeal should be dismissed.
Per Dickson, Estey, McIntyre, Chouinard and Lamer JJ.: The appellants' statement of claim should be struck out and their cause of action dismissed. The statement of claim does not disclose facts which, if taken as true, would prove that the Canadian government's decision to permit the testing of the cruise missile in Canada could cause a violation or a threat of violation of their rights under s. 7 of the Charter .
The principal allegation of the statement of claim is that the testing of the cruise missile in Canada poses a threat to the lives and security of Canadians by increasing the risk of nuclear conflict and thereby violates the right to life, liberty and security of the person. This alleged violation of s. 7 turns upon an actual increase in the risk of nuclear war resulting from the federal cabinet's decision to permit the testing. This allegation is premised upon assumptions and hypotheses about how independent and sovereign nations, operating in an international arena of uncertainty and change, will react to the Canadian government's decision to permit the testing of the cruise. Since the foreign policy decisions of independent nations are not capable of prediction on the basis of evidence to any degree of certainty approaching probability, the nature of the reaction to the federal cabinet's decision to permit the testing can only be a matter of speculation. The appellants could never prove the causal link between the decision to permit the testing and the increase in the threat of nuclear conflict.
Cabinet decisions are reviewable by the courts under s. 32(1) (a) of the Charter and the executive branch of the Canadian government bears a general duty to act in accordance with the dictates of the Charter . The decision to permit the testing of the cruise missile cannot be considered contrary to the duties of the executive since the possible effects of this government action are matters of mere speculation. Section 7 could only give rise to a duty on the part of the executive to refrain from permitting the testing if it could be said that a deprivation of life or security of the person could be proven to result from the impugned government act.
Per Wilson J.: The government's decision to allow the testing of the U.S. cruise missile in Canada, even although an exercise of the royal prerogative, was reviewable by the courts under s. 32(1) (a) of the Charter . It was not insulated from review because it was a "political question" since the Court had a constitutional obligation under s. 24 of the Charter to decide whether any particular act of the executive violated or threatened to violate any right of the citizen.
On a motion to strike out a statement of claim as disclosing no reasonable cause of action, the court must take the allegations of fact therein as proved. If such allegations raise a justiciable issue the court cannot abdicate its responsibility for review on the basis of anticipated problems of proof.
This statement of claim was struck, notwithstanding the general hesitancy of the courts to strike, because the facts disclosed no reasonable cause of action (1) under s. 24(1) of the Charter , (2) under s. 52(1) of the Constitution Act, 1982 or (3) under the common law power to grant declaratory relief. To succeed in their claim for relief under s. 24 of the Charter the plaintiffs would have to establish a violation or threat of violation of their right under s. 7 of the Charter . To obtain a declaration of unconstitutionality under s. 52(1) of the Constitution Act, 1982 , the plaintiffs would have to show that the government's decision to test the cruise missile in Canada was inconsistent with their right under s. 7 . To obtain declaratory relief at common law, they would have to establish a violation or threatened violation of their right under s. 7 .
The government's decision to test the cruise missile in Canada does not give rise to a violation or threatened violation of the plaintiffs' right under s. 7 . Even an independent, substantive right to life, liberty and security of the person cannot be absolute. It must take account of the corresponding rights of others and of the right of the state to protect the collectivity as well as the individual against external threats. The central concern of the section is direct impingement by government upon the life, liberty and personal security of individual citizens. It does not extend to incidental effects of governmental action in the field of inter‑state relations.
There is at the very least a strong presumption that governmental action concerning the relation of the state with other states, and not directed at any member of the immediate political community, was never intended to be caught by s. 7 even although such action may incidentally increase the risk of death or injury that individuals generally have to face.
Section 1 of the Charter was not called into operation here given the finding that the facts as alleged could not constitute a violation of s. 7 .
Since the application to amend the statement of claim was filed after the Crown instituted its appeal, the application was made "during the pendency of an appeal" to which the Rules of the Federal Court of Appeal applied. Appellants' right under Rule 421 had therefore expired and their only recourse was to proceed under Rule 1104.
Cases Cited
Chandler v. Director of Public Prosecutions, [1962] 3 All E.R. 142, affirming [1962] 2 All E.R. 314; Baker v. Carr, 369 U.S. 186 (1962); McKay v. Essex Area Health Authority, [1982] 2 All E.R. 771, considered; Atlee v. Laird, 347 F.Supp. 689 (1972); Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803); United States v. Nixon, 418 U.S. 683 (1974); Brown v. Board of Education of Topeka, 347 U.S. 483 (1954); Rylands v. Fletcher, [1861‑73] All E.R. 1; Attorney General of Canada v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735; Shawn v. Robertson (1964), 46 D.L.R. (2d) 363; McGhee v. National Coal Board, [1972] 3 All E.R. 1008; Fleming v. Hislop (1886), 11 A.C. 686; Alphacell Ltd. v. Woodward, [1972] 2 All E.R. 475; Leyland Shipping Co. v. Norwich Union Fire Insurance Society, [1918] A.C. 350; Minister of Justice of Canada v. Borowski, [1981] 2 S.C.R. 575; Thorson v. Attorney General of Canada, [1975] 1 S.C.R. 138; Nova Scotia Board of Censors v. McNeil, [1976] 2 S.C.R. 265; Solosky v. The Queen, [1980] 1 S.C.R. 821; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Attorney‑General for Canada v. Attorney‑General for Ontario, [1937] A.C. 326; Dyson v. Attorney‑General, [1911] 1 K.B. 410; Drummond‑Jackson v. British Medical Association, [1970] 1 All E.R. 1094; Dowson v. Government of Canada (1981), 37 N.R. 127; Miller v. The Queen, [1977] 2 S.C.R. 680; Re Federal Republic of Germany and Rauca (1983), 41 O.R. (2d) 225; Famous Players Canadian Corp. v. J.J. Turner and Sons Ltd., [1948] O.W.N. 221; Redland Bricks Ltd. v. Morris, [1970] A.C. 652, referred to.
Statutes and Regulations Cited
Canadian Bill of Rights, R.S.C. 1970, App. III, s. 1(a).
Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 24(1) , 32(1) (a),(b).
Colonial Laws Validity Act, 1865, 28 & 29 Vict., c. 63, s. 2.
Constitution Act, 1867, ss. 9 , 10 , 11 , 12 , 13 , 14 , 15 , 91 , 92 .
Constitution Act, 1982, s. 52 .
Federal Court Rules, ss. 408, 419(1)(a), 421, 469, 1104, 1723.
Statute of Westminster, 1931, 22 Geo. 5, c. 4 (R.S.C. 1970, App. II, No. 26), s. 7 .
Authors Cited
Adler, Mortimer J. Six Great Ideas, New York, Macmillan Publishing Co., 1981.
Bickel, Alexander M. The Least Dangerous Branch, Indianapolis, Bobbs‑Merrill Co., 1962.
Borchard, Edwin. Declaratory Judgments, 2nd ed., Cleveland, Banks‑Baldwin Law Publishing Co., 1941.
de Smith, S.A. Constitutional and Administrative Law, 4th ed., Harmondsworth, England, Penguin Books Ltd., 1981.
Dworkin, Ronald Myles. Taking Rights Seriously, London, Duckworth, 1977.
Eager, Samuel W. The Declaratory Judgment Action, Buffalo, N.Y., Dennis & Co., 1971.
Finkelstein, Maurice. "Judicial Self‑Limitation," 37 Harv. L. Rev. 338 (1924), 338‑364.
Gotlieb, A.E. "Canadian Treaty‑Making: Informal Agreements and Interdepartmental Arrangements," in Canadian Perspectives on International Law and Organization, eds. R. St. J. Macdonald, Gerald L. Morris and Douglas M. Johnston, Toronto, University of Toronto Press, 1974.
Henkin, Louis. "Is There a ‘Political Question’ Doctrine?" 85 Yale L.R. 597 (1976), 597‑625.
La Forest, Gerard J. "The Canadian Charter of Rights and Freedoms : An Overview" (1983), 61 Can. Bar Rev. 19, 19‑29.
Macdonald, R. St. J. "The Relationship between International Law and Domestic Law in Canada," in Canadian Perspectives on International Law and Organization, eds. R. St. J. Macdonald, Gerald L. Morris and Douglas M. Johnston, Toronto, University of Toronto Press, 1974.
Marshall, G. "Justiciability," in Oxford Essays in Jurisprudence, ed. A.G. Guest, London, Oxford University Press, 1961.
Pound, Roscoe. Jurisprudence, vol. 4, St. Paul, Minn., West Publishing Co., 1959.
Rawls, John. A Theory of Justice, Cambridge, Mass., Belknap Press of Harvard University Press, 1971.
Redish, Martin H. "Abstention, Separation of Powers, and the Limits of the Judicial Function," 94 Yale L.J. 71 (1984), 71‑115.
Sarna, Lazar. The Law of Declaratory Judgments, Toronto, Carswell Co., 1978.
Scharpf, Fritz W. "Judicial Review and the Political Question: A Functional Analysis," 75 Yale L.J. 517 (1966), 517‑597.
Sharpe, Robert J. Injunctions and Specific Performance, Toronto, Canada Law Book Ltd., 1983.
Stevens, Robert. "Justiciability: The Restrictive Practices Court Re‑Examined," [1964] Public Law 221, 221‑255.
Summers, Robert S. "Justiciability" (1963), 26 M.L.R. 530, 530‑538.
Tigar, Michael E. "Judicial Power, the ‘Political Question Doctrine’, and Foreign Relations," 17 U.C.L.A. L.R. 1135 (1970), 1135‑1179.
Wechsler, Herbert. Book Review, 75 Yale L.J. 672 (1966).
Wechsler, Herbert. Principles, Politics, and Fundamental Law, Cambridge, Mass., Harvard University Press, 1961.
Weston, Melville. "Political Questions," 38 Harv. L. Rev. 296 (1925), 296‑333.
Zamir, J. The Declaratory Judgment, London, Stevens & Sons Ltd., 1962.
APPEAL from a judgment of the Federal Court of Appeal, [1983] l F.C. 745, 49 N.R. 363, allowing an appeal from a judgment of Cattanach J., [1983] l F.C. 429, dismissing a motion to strike out. Appeal dismissed.
Gordon F. Henderson, Q.C., Lawrence Greenspon and Emilio Binavince, for the appellants.
W. I. C. Binnie, Q.C., and Graham R. Garton, for the respondents.
The judgment of Dickson, Estey, McIntyre, Chouinard and Lamer JJ. was delivered by
1. Dickson J.‑‑This case arises out of the appellants' challenge under s. 7 of the Canadian Charter of Rights and Freedoms to the decision of the federal cabinet to permit the testing of the cruise missile by the United States of America in Canadian territory. The issue that must be addressed is whether the appellants' statement of claim should be struck out, before trial, as disclosing no reasonable cause of action. In their statement of claim, the appellants seek: (i) a declaration that the decision to permit the testing of the cruise missile is unconstitutional; (ii) injunctive relief to prohibit the testing; and (iii) damages. Cattanach J. of the Federal Court, Trial Division, refused the respondents' motion to strike. The Federal Court of Appeal unanimously allowed the respondents' appeal, struck out the statement of claim and dismissed the appellants' action.
2. The facts and procedural history of this case are fully set out and discussed in the reasons for judgment of Madame Justice Wilson. I agree with Madame Justice Wilson that the appellants' statement of claim should be struck out and this appeal dismissed. I have reached this conclusion, however, on the basis of reasons which differ somewhat from those of Madame Justice Wilson.
3. In my opinion, if the appellants are to be entitled to proceed to trial, their statement of claim must disclose facts, which, if taken as true, would show that the action of the Canadian government could cause an infringement of their rights under s. 7 of the Charter . I have concluded that the causal link between the actions of the Canadian government, and the alleged violation of appellants' rights under the Charter is simply too uncertain, speculative and hypothetical to sustain a cause of action. Thus, although decisions of the federal cabinet are reviewable by the courts under the Charter , and the government bears a general duty to act in accordance with the Charter 's dictates, no duty is imposed on the Canadian government by s. 7 of the Charter to refrain from permitting the testing of the cruise missile.
I
The Appellants' Statement of Claim
4. The relevant portion of the appellants' statement of claim is found in paragraph 7 thereof. The deprivation of s. 7 Charter rights alleged by the appellants and the facts they advance to support this deprivation are described as follows:
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 surveillance 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 completely undermined as any such agreements become practically 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 approximately 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.
Section 7 of the Charter provides in English:
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.
and in French:
7. Chacun a droit à la vie, à la liberté et à la sécurité de sa personne; il ne peut être porté atteinte à ce droit qu'en conformité avec les principes de justice fondamentale.
5. Before turning to an examination of the appellants' allegations concerning the results of the decision to permit testing and its consequences on their rights under s. 7 , I think it would be useful to examine the principles governing the striking out of a statement of claim and dismissal of a cause of action.
(a) Striking Out a Statement of Claim
6. The respondents, by a motion pursuant to Rule 419(1)(a) of the Federal Court Rules, moved for an order to strike out the appellants' statement of claim as disclosing no reasonable cause of action. Rule 419(1)(a) reads as follows:
Rule 419. (1) The Court may at any stage of an action order 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,...
7. The most recent and authoritative statement of the principle applicable to determine when a statement of claim may be struck out is that of Estey J. in Attorney General of Canada v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735, at p. 740:
As I have said, all the facts pleaded in the statement of claim must be deemed to have been proven. On a motion such as this a court should, of course, dismiss the action or strike out any claim made by the plaintiff only in plain and obvious cases and where the court is satisfied that "the case is beyond doubt": Ross v. Scottish Union and National Insurance Co. (1920), 47 O.L.R. 308 (App. Div.)
8. Madame Justice Wilson in her reasons in the present case [at p. 486] summarized the relevant principles as follows:
The law then would appear to be clear. The facts pleaded are to be taken as proved. When so taken, the question is do they disclose a reasonable cause of action, i.e. a cause of action "with some chance of success" (Drummond‑Jackson v. British Medical Association, [1970] 1 All E.R. 1094) or, as Le Dain J. put it in Dowson v. Government of Canada (1981), 37 N.R. 127 (F.C.A.), at p. 138, is it "plain and obvious that the action cannot succeed".
9. I agree with Madame Justice Wilson that, regardless of the basis upon which the appellants advance their claim for declaratory relief‑‑whether it be s. 24(1) of the Charter , s. 52 of the Constitution Act, 1982 , or the common law‑‑they must at least be able to establish a threat of violation, if not an actual violation, of their rights under the Charter .
10. In short then, for the appellants to succeed on this appeal, they must show that they have some chance of proving that the action of the Canadian government has caused a violation or a threat of violation of their rights under the Charter .
(b) The Allegations of the Statement of Claim
11. The principal allegation of the statement of claim is that the testing of the cruise missile in Canada poses a threat to the lives and security of Canadians by increasing the risk of nuclear conflict, and thus violates the right to life, liberty and security of the person guaranteed by s. 7 of the Charter .
12. As a preliminary matter, it should be noted that the exact nature of the deprivation of life and security of the person that the appellants rely upon as the legal foundation for the violation of s. 7 they allege is not clear. There seem to be two possibilities. The violation could be the result of actual deprivation of life and security of the person that would occur in the event of a nuclear attack on Canada, or it could be the result of general insecurity experienced by all people in Canada as a result of living under the increased threat of nuclear war.
13. The first possibility is apparent on a literal reading of the statement of claim. The second possibility, however, appears to be more consistent with the appellants' submission at p. 31 of their factum, that:
...at the minimum, the above allegations show [in paragraph 7 of the statement of claim] that there is a "threat" to the life and security of the Appellants which "threat", depending upon the construction of the concept "infringe" or "deny" in Section 7 [sic], could arguably constitute an infringement or denial of their right to life and security of the person. The amendment to the Statement of Claim, rejected by the Court of Appeal, would have made infringement or denial more explicit when it states: "The very testing of the cruise missile per se in Canada endangers the Charter of Rights and Freedoms Section 7: (sic) Rights".
14. I believe that we are obliged to read the statement of claim as generously as possible and to accommodate any inadequacies in the form of the allegations which are merely the result of drafting deficiencies.
15. Thus, I am prepared to accept that the appellants intended both of these possible deprivations as a basis for the violation of s. 7. It is apparent, however, that the violation of s. 7 alleged turns upon an actual increase in the risk of nuclear war, resulting from the federal cabinet's decision to permit the testing of the cruise missile. Thus, to succeed at trial, the appellants would have to demonstrate, inter alia, that the testing of the cruise missile would cause an increase in the risk of nuclear war. It is precisely this link between the cabinet decision to permit the testing of the cruise and the increased risk of nuclear war which, in my opinion, they cannot establish. It will not be necessary therefore to address the issue of whether the deprivations of life and security of the person advanced by the appellants could constitute violations of s. 7.
16. As I have noted, both interpretations of the nature of the infringement of the appellants' rights are founded on the premise that if the Canadian government allows the United States government to test the cruise missile system in Canada, then there will be an increased risk of nuclear war. Such a claim can only be based on the assumption that the net result of all of the various foreign powers' reactions to the testing of the cruise missile in Canada will be an increased risk of nuclear war.
17. The statement of claim speaks of weapons control agreements being "practically unenforceable", Canada being "more likely to be the target of a nuclear attack", "increasing the likelihood of either a pre‑emptive strike or an accidental firing, or both", and "escalation of the nuclear arms race". All of these eventualities, culminating in the increased risk of nuclear war, are alleged to flow from the Canadian government's single act of allowing the United States to test the cruise missile in Canada.
18. Since the foreign policy decisions of independent and sovereign nations are not capable of prediction, on the basis of evidence, to any degree of certainty approaching probability, the nature of such reactions can only be a matter of speculation; the causal link between the decision of the Canadian government to permit the testing of the cruise and the results that the appellants allege could never be proven.
19. An analysis of the specific allegations of the statement of claim reveals that they are all contingent upon the possible reactions of the nuclear powers to the testing of the cruise missile in Canada. The gist of paragraphs (a) and (b) of the statement of claim is that verification of the cruise missile system is impossible because the missile cannot be detected by surveillance satellites, and that, therefore, arms control agreements will be unenforceable. This is based on two major assumptions as to how foreign powers will react to the development of the cruise missile: first, that they will not develop new types of surveillance satellites or new methods of verification, and second, that foreign powers will not establish new modes of co‑operation for dealing with the problem of enforcement. With respect to the latter of these points, it is just as plausible that lack of verification would have the effect of enhancing enforceability than of undermining it, since an inability on the part of nuclear powers to verify systems like the cruise could precipitate a system of enforcement based on co‑operation rather than surveillance.
20. As for paragraph (c), even if it were the case that the testing of the air‑launched cruise missile would result in an increased American military presence and interest in Canada, to say that this would make Canada more likely to be the target of a nuclear attack is to assume certain reactions of hostile foreign powers to such an increased American presence. It also makes an assumption about the degree to which Canada is already a possible target of nuclear attack. Given the impossibility of determining how an independent sovereign nation might react, it can only be a matter of hypothesis whether an increased American presence would make Canada more vulnerable to nuclear attack. It would not be possible to prove it one way or the other.
21. Paragraph (d) assumes that foreign states will not develop their technology in such a way as to meet the requirements of effective detection of the cruise and that there will therefore be an increased likelihood of pre‑emptive strike or an accidental firing, or both. Again, this assumption concerns how foreign powers are likely to act in response to the development of the cruise. It would be just as plausible to argue that foreign states would improve their technology with respect to detection of missiles, thereby decreasing the likelihood of accidental firing or pre‑emptive strike.
22. Finally, paragraph (e) asserts that the development of the cruise will lead to an escalation of the nuclear arms race. This again involves speculation based on assumptions as to how foreign powers will react. One could equally argue that the cruise would be the precipitating factor in compelling the nuclear powers to negotiate agreements that would lead to a de‑escalation of the nuclear arms race.
23. One final assumption, common to all the paragraphs except (c), is that the result of testing of the cruise missile in Canada will be its development by the United States. In all of these paragraphs, the alleged harm flows from the production and eventual deployment of the cruise missile. The effect that the testing will have on the development and deployment of the cruise can only be a matter of speculation. It is possible that as a result of the tests, the Americans would decide not to develop and deploy the cruise since the very reason for the testing is to establish whether the missile is a viable weapons system. Similarly, it is possible that the Americans would develop the cruise missile even if testing were not permitted by the Canadians.
24. In the final analysis, exactly what the Americans will decide to do about development and deployment of the cruise missile, whether tested in Canada or not, is a decision that they, as an independent and sovereign nation, will make for themselves. Even with the assistance of qualified experts, a court could only speculate on how the American government may make this decision, and how important a factor the results of the testing of the cruise in Canada will be in that decision.
25. What can be concluded from this analysis of the statement of claim is that all of its allegations, including the ultimate assertion of an increased likelihood of nuclear war, are premised on assumptions and hypotheses about how independent and sovereign nations, operating in an international arena of radical uncertainty, and continually changing circumstances, will react to the Canadian government's decision to permit the testing of the cruise missile.
26. The point of this review is not to quarrel with the allegations made by the appellants about the results of cruise missile testing. They are, of course, entitled to their opinion and belief. Rather, I wish to highlight that they are raising matters that, in my opinion, lie in the realm of conjecture, rather than fact. In brief, it is simply not possible for a court, even with the best available evidence, to do more than speculate upon the likelihood of the federal cabinet's decision to test the cruise missile resulting in an increased threat of nuclear war.
(c) The Rule that Facts in a Statement of Claim Must be Taken as Proven
27. We are not, in my opinion, required by the principle enunciated in Inuit Tapirisat, supra, to take as true the appellants' allegations concerning the possible consequences of the testing of the cruise missile. The rule that the material facts in a statement of claim must be taken as true for the purpose of determining whether it discloses a reasonable cause of action does not require that allegations based on assumptions and speculations be taken as true. The very nature of such an allegation is that it cannot be proven to be true by the adduction of evidence. It would, therefore, be improper to accept that such an allegation is true. No violence is done to the rule where allegations, incapable of proof, are not taken as proven.
II
The Cabinet's Decision to Permit the Testing of the Cruise Missile and the Application of the Charter of Rights and Freedoms
(a) Application of the Charter to Cabinet Decisions
28. I agree with Madame Justice Wilson that cabinet decisions fall under s. 32(1) (a) of the Charter and are therefore reviewable in the courts and subject to judicial scrutiny for compatibility with the Constitution. I have no doubt that the executive branch of the Canadian government is duty bound to act in accordance with the dictates of the Charter . Specifically, the cabinet has a duty to act in a manner consistent with 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.
(b) The Absence of a Duty on the Government to Refrain from Allowing Testing
29. I do not believe the action impugned in the present case can be characterized as contrary to the duties of the executive under the Charter . Section 7 of the Charter cannot reasonably be read as imposing a duty on the government to refrain from those acts which might lead to consequences that deprive or threaten to deprive individuals of their life and security of the person. A duty of the federal cabinet cannot arise on the basis of speculation and hypothesis about possible effects of government action. Such a duty only arises, in my view, where it can be said that a deprivation of life and security of the person could be proven to result from the impugned government act.
30. The principles governing remedial action by the courts on the basis of allegations of future harm are illustrative of the more general principle that there is no legal duty to refrain from actions which do not prejudice the legal rights of others. A person, whether the government or a private individual, cannot be held liable under the law for an action unless that action causes the deprivation, or threat of deprivation, of legal rights. And an action cannot be said to cause such deprivation where it is not provable that the deprivation will occur as a result of the challenged action. I am not suggesting that remedial action by the courts will be inappropriate where future harm is alleged. The point is that remedial action will not be justified where the link between the action and the future harm alleged is not capable of proof.
31. The reluctance of courts to provide remedies where the causal link between an action and the future harm alleged to flow from it cannot be proven is exemplified by the principles with respect to declaratory relief. According to Eager, The Declaratory Judgment Action (1971), at p. 5:
3. The remedy [of declaratory relief] is not generally available where the controversy is not presently existing but merely possible or remote; the action is not maintainable to settle disputes which are contingent upon the happening of some future event which may never take place.
4. Conjectural or speculative issues, or feigned disputes or one‑sided contentions are not the proper subjects for declaratory relief.
Similarly, Sarna has said, "The court does not deal with unripe claims, nor does it entertain proceedings with the sole purpose of remedying only possible conflicts": (The Law of Declaratory Judgments (1978), at p. 179).
32. None of this is to deny the preventative role of the declaratory judgment. As Madame Justice Wilson points out in her judgment, Borchard, Declaratory Judgments (2nd ed. 1941), at p. 27, states that,
...no "injury" or "wrong" need have been actually committed or threatened in order to enable the plaintiff to invoke the judicial process; he need merely show that some legal interest or right of his has been placed in jeopardy or grave uncertainty....
33. Nonetheless, the preventative function of the declaratory judgment must be based on more than mere hypothetical consequences; there must be a cognizable threat to a legal interest before the courts will entertain the use of its process as a preventive measure. As this Court stated in Solosky v. The Queen, [1980] 1 S.C.R. 821, a declaration could issue to affect future rights, but not where the dispute in issue was merely speculative. In Solosky, supra, one of the questions was whether an order by a director of a prison to censor correspondence between the appellant inmate and his solicitor could be declared unlawful. The dispute had already arisen as a result of the existence of the censorship order and the declaration sought was a direct and present challenge to this order. This Court found that the fact that the relief sought would relate to letters not yet written, and thereby affect future rights, was not in itself a bar to the granting of a declaration. The Court made it clear, however, at p. 832:
... that a declaration will not normally be granted when the dispute is over and has become academic, or where the dispute has yet to arise and may not arise.
(Emphasis added.)
34. A similar concern with the problems inherent in basing relief on the prediction of future events is found in the principles relating to injunctive relief. Professor Sharpe, Injunctions and Specific Performance (1983), clearly articulates the difficulties in issuing an injunction where the alleged harm is prospective at pp. 30‑31:
All injunctions are future looking in the sense that they are intended to prevent or avoid harm rather than compensate for an injury already suffered ....
Where the harm to the plaintiff has yet to occur the problems of prediction are encountered. Here, the plaintiff sues quia timet‑‑because he fears‑‑and the judgment as to the propriety of injunctive relief must be made without the advantage of actual evidence as to the nature of harm inflicted on the plaintiff. The court is asked to predict that harm will occur in the future and that the harm is of a type that ought to be prevented by injunction.
35. The general principle with respect to such injunctions appears to be that "there must be a high degree of probability that the harm will in fact occur": Sharpe, supra, at p. 31. In Redland Bricks Ltd. v. Morris, [1970] A.C. 652, at p. 665, per Lord Upjohn, the House of Lords laid down four general propositions concerning the circumstances in which mandatory injunctive relief could be granted on the basis of prospective harm. The first of these stated [at p. 665]:
1. A mandatory injunction can only be granted where the plaintiff shows a very strong probability upon the facts that grave damage will accrue to him in the future.... It is a jurisdiction to be exercised sparingly and with caution but in the proper case unhesitatingly.
36. It is clearly illustrated by the rules governing declaratory and injunctive relief that the courts will not take remedial action where the occurrence of future harm is not probable. This unwillingness to act in the absence of probable future harm demonstrates the courts' reluctance to grant relief where it cannot be shown that the impugned action will cause a violation of rights.
37. In the present case, the speculative nature of the allegation that the decision to test the cruise missile will lead to an increased threat of nuclear war makes it manifest that no duty is imposed on the Canadian government to refrain from permitting the testing. The government's action simply could not be proven to cause the alleged violation of s. 7 of the Charter and, thus, no duty can arise.
III
Justiciability
38. The approach which I have taken is not based on the concept of justiciability. I agree in substance with Madame Justice Wilson's discussion of justiciability and her conclusion that the doctrine is founded upon a concern with the appropriate role of the courts as the forum for the resolution of different types of disputes. I have no doubt that disputes of a political or foreign policy nature may be properly cognizable by the courts. My concerns in the present case focus on the impossibility of the Court finding, on the basis of evidence, the connection, alleged by the appellants, between the duty of the government to act in accordance with the Charter of Rights and Freedoms and the violation of their rights under s. 7 . As stated above, I do not believe the alleged violation‑‑namely, the increased threat of nuclear war‑‑could ever be sufficiently linked as a factual matter to the acknowledged duty of the government to respect s. 7 of the Charter .
IV
Section 52 of the Constitution Act, 1982 and Section 1 of the Charter
39. I would like to note that nothing in these reasons should be taken as the adoption of the view that the reference to "laws" in s. 52 of the Charter is confined to statutes, regulations and the common law. It may well be that if the supremacy of the Constitution expressed in s. 52 is to be meaningful, then all acts taken pursuant to powers granted by law will fall within s. 52 . Equally, it is not necessary for th