MacKay v. The Queen

MacKay v. The Queen
Collection
Supreme Court Judgments
Date
1980-07-18
Report
[1980] 2 SCR 370
Judges
Laskin, Bora; Martland, Ronald; Ritchie, Roland Almon; Pigeon, Louis-Philippe; Dickson, Robert George Brian; Beetz, Jean; Estey, Willard Zebedee; McIntyre, William Rogers; Chouinard, Julien
On appeal from
Court Martial Appeal Court of Canada
Subjects
Constitutional law
Decision Content
Supreme Court of Canada
MacKay v. The Queen, [1980] 2 S.C.R. 370
Date: 1980-07-18
[SIN omitted] Private R.C. MacKay, Canadian Forces, Regular Force Appellant;
and
Her Majesty The Queen Respondent.
1980: February 5; 1980: July 18.
Present: Laskin C.J. and Martland, Ritchie, Pigeon, Dickson, Beetz, Estey, McIntyre and Chouinard JJ.
ON APPEAL FROM THE COURT MARTIAL APPEAL COURT
Constitutional law—Court martial—Equality before the law—Military prosecutor rather than Attorney General—Independent and impartial tribunal—Canadian Bill of Rights, ss. 1(a), 1(b), 2(e) and 2(f)—British North America Act, s. 91(7).
The appellant, a member of the Canadian Forces, Regular Force, was tried by a Standing Court Martial on seven charges under s. 120 of the National Defence Act, six of the charges relating to trafficking in a narcotic, contrary to s. 4(1) of the Narcotic Control Act, and one relating to possession of a narcotic, contrary to s. 3 of the Narcotic Control Act. He was found not guilty on one of the trafficking charges and guilty on the other six charges. His sentence was sixty days’ detention. On appeal to the Court Martial Appeal Court, his conviction on one of the trafficking charges was set aside and his conviction on the remaining five charges was affirmed. The trafficking offences of which he remained convicted involved other members of the armed forces and three of these offences took place on army barracks. The possession offence was also committed there.
The Court was asked to answer the following constitutional questions: 1. Are the provisions of the National Defence Act which authorized the trial by service tribunals of military personnel charged with criminal offences committed in Canada, contrary to the Narcotic Control Act or the Criminal Code, inoperative by reason of ss. 1(a), 1(b), 2(e) and 2(f) of the Canadian Bill of Rights? 2. Is the National Defence Act, in as far as it permits criminal proceedings before service tribunals… to be instituted and conducted by military prosecutor and not by the Attorney General of a province or the Attorney General of Canada, ultra vires the Parliament of Canada? Held (Laskin C.J. and Estey J. dissenting): The appeal should be dismissed and both questions answered in the negative.
Per Martland, Ritchie, Pigeon, Beetz and Chouinard JJ.: The National Defence Act, pursuant to which the charges were laid in this case, is legislation enacted in fulfillment of the legislative authority assigned to Parliament by s. 91(7) of the B.N.A. Act which provides that “the exclusive Legislative Authority of the Parliament of Canada extends to… Militia, Military and Naval Service, and Defence”. This authority must include the authority to enact legislation for regulation and control of the behaviour and discipline of members of the service, and this in turn includes the making of provision for the establishment of courts to enforce such legislation. Prata v. Minister of Manpower and Immigration, [1976] 1 S.C.R. 376, where this Court held that s. 1(b) of the Canadian Bill of Rights does not require that all federal statutes must apply to all individuals in the same manner, is directly contrary to the contention advanced by the appellant under s. 1(b) of the Bill of Rights.
The appellant’s contention that the provision for charging an accused serviceman either before a court martial or a civilian court exposes him to a duality of criminal procedures which is a badge of inequality before the law is untenable. It is to be remembered that under the National Defence Act the jurisdiction of the civil courts is never ousted (s. 61(1)) and that the military law, which stands side by side with the general law of the land, is equally part of the law of the land although limited to members of the armed services. The implementation of s. 120 of the National Defence Act of necessity occasions differences in the treatment of service personnel and civilians, and it is not inconsistent with the concept of equality before the law for Parliament to make a law that, for sound reasons of legislative policy, applies to one class of persons and not to another class. There is no deprivation of human rights in the manner in which the appellant was charged and his trial convened.
The appellant’s submission that he was deprived of a hearing by an independent and impartial tribunal because the president of the standing court martial was a member of the armed forces is equally untenable. There is no evidence to suggest that the president acted in a partial manner or that his appointment resulted or was calculated to result in the appellant being deprived of a trial before an independent and impartial tribunal. The first question should therefore be answered in the negative.
With respect to the second question, the power here to designate a federal agent to conduct the prosecution of the offence is one which is properly within federal competence. The issue was settled in the Hauser case, [1979] 1 S.C.R. 984. This question should also be answered in the negative.
Per Dickson and McIntyre JJ.: The National Defence Act has not been declared to be operative against the provisions of the Bill of Rights, whose provisions must therefore be borne in mind in construing the Act.
The appellant’s submission that a trial by court martial offends the Bill of Rights in that it deprives the serviceman of his right to a fair hearing by an independent and impartial tribunal, as provided for in s. 2(f), cannot be accepted. From the earliest times, officers of the armed forces have had this judicial function. Service officers are not less able to adjust their attitudes to meet the duty of impartiality required of them than are those who are appointed to judicial office in the civilian society. Furthermore, the existence of a Court Martial Appeal Court, a professional Court of Appeal with a general appellate jurisdiction over the courts martial, is a significant safeguard.
The appellant’s second point raises the question whether the trial of servicemen by court martial under military law for an offence under the criminal law of Canada deprives the serviceman of equality before the law contrary to the provisions of s. 1 (b) and s. 2 of the Bill of Rights. Judicial construction of the words “equality before the law” has advanced the proposition that legislation passed by Parliament does not offend against the principle of equality before the law if passed in pursuance of a “valid federal objective”. It is incontestable that Parliament has the power to legislate in such a way as to affect one group or class in society as distinct from another without any necessary offence to the Bill of Rights. The question which must be resolved in each case is whether an inequality that may be created by legislation affecting a special class—here the military—is arbitrary, capricious or unneccessary, or whether it is rationally based and acceptable as a necessary variation from the general principle of universal application of law to meet special conditions and to attain a necessary and desirable social objective.
The creation of a body of military law and the tribunals necessary for its administration, involving as a necessary incident thereto different treatment at law for servicemen in certain cases from that afforded to civilians, does not by itself constitute a denial of equality before the law. It must not however be forgotten that, since the principle of equality before the law is to be maintained, departures should be countenanced only where necessary for the attainment of desirable social objectives, and then only to the extent necessary in the circumstances to make possible the attainment of such objectives. The provisions of the National Defence Act, in so far as they confer jurisdiction upon courts martial to try servicemen in Canada for offences which are offences under the penal statutes of Canada for which civilians might also be tried, and where the commission and nature of such offences has no necessary connection with the service, are inoperative as being contrary to the Bill of Rights. In the case at bar, the offences are sufficiently connected with the service to come within the jurisdiction of the military courts. Trafficking and possession of narcotics, in a military establishment, can have no other tendency than to attack the standards of discipline and efficiency of the service.
Per Laskin C.J. and Estey J. dissenting: Special treatment and special provision for the regulation of the armed forces in their character as such represents a reasonable classification which, so long as there is no irrelevant discrimination in the regulation, may well be compatible with the Bill of Rights. The contention, here, however, is that in respect of s. 120 of the National Defence Act, there has been a clear departure from an internal military code by the provision for prosecution, through military tribunals, of offences under the ordinary criminal law but without putting the accused members of the armed forces in the same position under that law as are other members of the public when similarly charged.
It is fundamental that when a person, whatever his or her status or occupation, is charged with an offence under the ordinary criminal law and is to be tried under that law and in accordance with its prescriptions, he or she is entitled to be tried before a court of justice, separate from the prosecution and free from any suspicion of influence of or dependency on others. There is nothing in such a case, where the person charged is in the armed forces, that calls for any special skill of a superior officer, as would be the case if a strictly service or discipline offence, relating to military activity, was involved. There has therefore, been a breach of s. 2(f) of the Bill of Rights in that the accused, charged with a criminal offence, was entitled to be tried by an independent and impartial tribunal. The appellant is also entitled to succeed on the ground that he was denied equality before the law, contrary to s. 1(b) of the Bill of Rights. There cannot be in this country two such disparate ways of trying offences against the ordinary law, depending on whether the accused is a member of the armed forces or not. In the Drybones case it was Indians and here it is members of the armed forces who were under disabilities; treated differently, in short, from other persons in respect of the application to them of the same law. Section 120 of the National Defence Act must be held to be inoperative in so far as it subjects members of the armed forces to a different and, indeed, more onerous liability for a breach of ordinary law than are other persons in Canada who are also governed by that law.
[Prata v. The Minister of Manpower and Immigration, [1976] 1 S.C.R. 376; R. v. Burnshine, [1975] 1 S.C.R. 693; Curr v. The Queen, [1972] S.C.R. 889; Bliss v. The Attorney General of Canada, [1979] 1 S.C.R. 183; Smythe v. The Queen, [1971] S.C.R. 680; R. v. Court of Sessions. Ex p. Lafleur, [1967] 3 C.C.C. 244; R. v. Hauser, [1979] 1 S.C.R. 984, referred to]
APPEAL from a judgment of the Court Martial Appeal Court varying the judgment of a Standing Court Martial. Appeal dismissed, the Chief Justice and Estey J. dissenting.
B.A. Crane, Q.C., and D.R. Wilson, for the appellant.
T.B. Smith, Q.C., and S.H. Forster, for the respondent.
The reasons of Laskin C.J. and Estey J. were delivered by
THE CHIEF JUSTICE (dissenting)—The appellant is a member of the Canadian armed forces stationed in Victoria, British Columbia. He was tried by a Standing Court Martial on seven charges under s. 120 of the National Defence Act, R.S.C. 1970, c. N-4, as amended, six of the charges relating to trafficking in a narcotic, contrary to s. 4(1) of the Narcotic Control Act, R.S.C. 1970, c. N-1, as amended, and one relating to possession of a narcotic, contrary to s. 3 of the Narcotic Control Act. He was found not guilty on one of the trafficking charges and guilty on the other six charges. His sentence was sixty days’ detention. On appeal to the Court Martial Appeal Court, his conviction on one of the trafficking charges was set aside and his conviction on the remaining five charges was affirmed. The trafficking offences of which he remained convicted involved other members of the armed forces and three of these offences took place on army barracks. The possession offence was also committed there.
The single issue in the appeal to this Court, which is here by its leave, is whether the manner of prosecution and trial and the exposure of the accused to conviction under the Narcotic Control Act through s. 120 of the National Defence Act offended s. 2(f) and s. 1(b) of the Canadian Bill of Rights, 1960 (Can.), c. 44 (R.S.C. 1970, Appendix III), in that (1) being charged with a criminal offence (as contrasted with a disciplinary offence under military law) he was not tried by an independent and impartial tribunal, and (2) he was denied equality before the law.
The National Defence Act does not contain any express declaration ousting the application of the Canadian Bill of Rights in conformity with s. 2 of the Canadian Bill of Rights. The operation of the National Defence Act is, hence, subject to the Canadian Bill of Rights, which is stated in s. 5(2) to be applicable in respect of federal legislation and regulations thereunder, whether enacted or passed before or after its in-force date.
Reference to the scheme of the National Defence Act, and to some of its provisions is necessary for a determination of the issues in this appeal. I should say at once that the establishment of a special code of law governing the armed forces in their military character and in relation to military activities and discipline is not challenged in this case. Reference in this respect may be made to ss. 62 to 119 of the National Defence Act. Special treatment and special provision for the regulation of the armed forces in their character as such represents a reasonable classification which, so long as there is no irrelevant discrimination in the regulation, may well be compatible with the Canadian Bill of Rights. The contention, here, however, is that in respect of s. 120 of the National Defence Act and of its supporting provisions, there has been a clear departure from an internal military code by the provision for prosecution, through military tribunals, of offences under the ordinary criminal law but without putting the accused members of the armed forces in the same position under that law as are other members of the public when similarly charged.
The National Defence Act deals in a very wide way with what are called “service offences”. The term is defined in s. 2 to mean “an offence under this Act, the Criminal Code or any other Act of the Parliament of Canada, committed by a person while subject to the Code of Service Discipline”. The Code of Service Discipline covers, of course, members of the regular forces and also, in prescribed circumstances, members of the reserve force. It deals, in the main, with disciplinary offences and misconduct connected with military activities but, as the definition above indicates, it also deals with offences punishable by ordinary law and subjects an accused member of the armed forces to trial before a service tribunal for all classes of “service offences”. There is only the exception stated in s. 60 of the Act that “a service tribunal shall not try any person charged with an offence of murder, rape or manslaugher, committed in Canada”.
Although a scale of punishments is fixed for service offences in s. 126 of the Act, nonetheless where the offence is a contravention of the ordinary law, it is the punishment that is fixed by that law that applies. The governing provision is s. 120, headed Offences Punishable by Ordinary law, and so far as material here, it reads as follows:
120. (1) An act or omission
(a) that takes place in Canada and is punishable under Part XII of this Act, the Criminal Code or any other Act of the Parliament of Canada; or
(b) that takes place outside Canada and would, if it had taken place in Canada, be punishable under Part XII of this Act, the Criminal Code or any other Act
of the Parliament of Canada; is an offence under this Part and every person convicted thereof is liable to suffer punishment as provided in subsection (2).
(2) Subject to subsection (3), where a service tribunal convicts a person under subsection (1), the service tribunal shall,
(a) if the conviction was in respect of an offence
(i) committed in Canada, under Part XII of this Act, the Criminal Code or any other Act of the Parliament of Canada and for which a minimum punishment is prescribed, or
(ii) committed outside Canada under section 218 of the Criminal Code,
impose a punishment in accordance with the enactment prescribing the minimum punishment for the offence; or
(b) in any other case,
(i) impose the penalty prescribed for the offence by Part XII of this Act, the Criminal Code or that other Act, or
(ii) impose dismissal with disgrace from Her Majesty’s service or less punishment.
There are some offences included in the category of service offences which are similar to Criminal Code offences but are separately dealt with as, for example, stealing in s. 104 and receiving under s. 105. These do not detract from the embracive character of s. 120 and it may be, although it is unnecessary to decide this here, that there is a choice in charging an accused in such cases either under the Criminal Code or under the particular sections just mentioned.
It is also relevant to the issues herein to note that s. 61 of the National Defence Act states that “nothing in the Code of Service Discipline affects the jurisdiction of any civil court to try a person for an offence triable by that court”. A serviceman who is first tried by a service tribunal (as here, by a Standing Court Martial) is thus exposed to a further trial (whether convicted or acquitted by the service tribunal) subject only to the following punishment qualification set out in s. 61(2) which is in these terms:
61. (1). … (2) Where a person, sentenced by a service tribunal in respect of a conviction on a charge of having committed a service offence, is afterwards tried by a civil court for the same offence or for any other offence of which he might have been found guilty on that charge, the civil court shall in awarding punishment take into account any punishment imposed by the service tribunal for the service offence.
However, the converse is not true. If a civil court has acted first against a serviceman then, under s. 56(1) of the National Defence Act, he cannot be tried again by a service tribunal either for the particular offence tried by the civil court or for any included offence.
This brings me to consider the composition of a service tribunal, defined in s. 2 to mean “a court martial or a person presiding at a summary trial”. I leave aside, for the purposes of the present case, any concern with persons presiding at a summary trial. Sections 141 and 142 of the National Defence Act provide for summary trial, in prescribed circumstances, by a commanding officer and by superior commanders, being in the latter case of or above the rank of brigadier general or any officer appointed for that purpose by the Minister of National Defence. Courts martial are of various kinds, e.g., general courts martial, disciplinary courts martial, standing courts martial and special general courts martial. There appears to be concurrent jurisdiction in the various courts martial in respect of “service offences”, but their composition and numbers differ. Only in the case of a trial before a Standing Court Martial or a Special General Court Martial is there a requirement of a legal qualification in the presiding officer, being the sole member in each of these two types of courts martial.
Section 154, dealing with Standing Courts Martial reads as follows:
154. (1) The Governor in Council may establish Standing Courts Martial and each such court martial shall consist of one officer, to be called the president, who is or has been a barrister or advocate of more than three years standing and who shall be appointed by or under the authority of the Minister. (2) Subject to any limitations prescribed in regulations, a Standing Court Martial may try any person who under Part IV is liable to be charged, dealt with and tried upon a charge of having committed a service offence, but a Standing Court Martial shall not pass a sentence including any punishment higher in the scale of punishments than imprisonment for less than two years.
In the present case, the charges against the accused were laid by the accused’s commanding officer. The Standing Court Martial was ordered by a senior commander and a member of the armed forces, a Lieutenant-Colonel, was appointed from an approved list as the Standing Court Martial pursuant to s. 154. Both the officer constituting the Standing Court Martial and the prosecutor were part of the office of the Judge Advocate General. In short, the accused, who was tried on charges under a general federal statute, the Narcotic Control Act, was in the hands of his military superiors in respect of the charges, the prosecution and the tribunal by which he was tried. It is true that the Court Martial Appeal Court, consisting under s. 201 of the National Defence Act, of judges of the Federal Court of Canada and additional superior court judges appointed by the Governor in Council, exhibits independence and the appearance of independence in its composition but the same cannot be said of the constitution of a Standing Court Martial when trying an accused for breach of the ordinary criminal law. Needless to say, there is no impugning of the integrity of the presiding officer; it is just that he is not suited, by virtue of his close involvement with the prosecution and with the entire military establishment, to conduct a trial on charges of a breach of the ordinary criminal law. It would be different if he were concerned with a charge of breach of military discipline, something that was particularly associated with an accused’s membership in the armed forces. The fact that “service offences” are so broadly defined as to include breaches of the ordinary law does not, in my opinion, make a Standing Court Marital the equivalent of an independently appointed judicial officer or other than an ad hoc appointee, having no tenure and coming from the very special society of which both the accused, his prosecutor and his “judge” are members: cf. Committee for Justice and Liberty et al. v. National Energy Board et al.[1]
In my opinion, it is fundamental that when a person, any person, whatever his or her status or occupation, is charged with an offence under the ordinary criminal law and is to be tried under that law and in accordance with its prescriptions, he or she is entitled to be tried before a court of justice, separate from the prosecution and free from any suspicion of influence of or dependency on others. There is nothing in such a case, where the person charged is in the armed forces, that calls for any special knowledge or special skill of a superior officer, as would be the case if a strictly service or discipline offence, relating to military activity, was involved. It follows that there has been a breach of s. 2(f) of the Canadian Bill of Rights in that the accused, charged with a criminal offence, was entitled to be tried by an independent and impartial tribunal. Section 2(f) provides that no law of Canada shall be construed or applied so as to
deprive a person charged with a criminal offence of the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal, or of the right to reasonable bail without just cause.
In short, I regard the provisions of the National Defence Act as inoperative in so far as they provide for the trial of offences against the ordinary law by service tribunals.
I am of the opinion that the appellant is also entitled to succeed in this appeal on the second ground taken by him, namely, that he was denied equality before the law, contrary to s. 1(b) of the Canadian Bill of Rights. I cannot conceive that there can be in this country two such disparate ways of trying offences against the ordinary law, depending on whether the accused is a member of the armed forces or is not. Nor does it appear to me to be sustainable, in the face of the Canadian Bill of Rights, that an accused is exposed to trial before the civil courts for an offence of which he was first tried by a service tribunal. A person charged with a criminal offence under the ordinary law, be it the Criminal Code or some other federal penal statute such as the Narcotic Control Act, has the protection of the procedures for trial prescribed by the Criminal Code, subject to such special provisions as may be part of the federal penal statute under which he or she is charged and tried. Such an accused comes before an independent and impartial judge; he may be able to elect trial by jury and rely on other prescriptions, such as having a preliminary enquiry, the right to appeal sentence (not open before the Martial Appeal Court: see ss. 183, 200(1), 202(3)), or being able to seek an absolute discharge or a suspended sentence.
The present case is, in my opinion, on all fours in principle with the judgment of this Court in The Queen v. Drybones[2], and is also nourished by what this Court said in Curr v. The Queen[3], and in the majority judgment in Attorney-General of Canada v. Lavell[4].
Drybones was a case where under s. 94(b) of the Indian Act, R.S.C. 1952, c. 149, an Indian was liable to prosecution and conviction for being intoxicated off a reserve, even in his own home, whereas other persons were not so liable unless the intoxication occurred in a public place. The position, as it was put by Ritchie J., who delivered the majority judgment of this Court, was as follows (at p. 290):
The result is that an Indian who is intoxicated in his own home “off a reserve” is guilty of an offence and subject to a minimum fine of not less than $10 or a term of imprisonment not exceeding 3 months or both, whereas all other citizens in the Territories may, if they see fit, become intoxicated otherwise than in a public place without committing any offence at all. And even if any such other citizen is convicted of being intoxicated in a public place, the only penalty provided by the Ordinance is “a fine not exceeding $50 or… imprisonment for a term not exceeding 30 days or… both fine and imprisonment.”
In Drybones it was Indians and here it is members of the armed forces who were under disabilities; treated differently, in short, from other persons in respect of the application to them of the same law. Ritchie J., in his reasons said plainly enough that the Canadian Bill of Rights was more than an interpretation statute (whose force would be spent once it was evident that federal legislation could not be construed compatibly with the Canadian Bill of Rights); rather, it required not only construction but application to ensure conformity with its prescriptions and it rendered the federal legislation inoperative if and to the extent to which there was no conformity. He rejected the “construction” approach which had been adopted by the British Columbia Court of Appeal in Regina v. Gonzales[5], saying this (at pp. 294-5):
It seems to me that a more realistic meaning must be given to the words in question and they afford, in my view, the clearest indication that s. 2 is intended to mean and does mean that if a law of Canada cannot be “sensibly construed and applied” so that it does not abrogate, abridge or infringe one of the rights and freedoms recognized and declared by the Bill, then such law is inoperative “unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights”.
I think a declaration by the courts that a section or portion of a section of a statute is inoperative is to be distinguished from the repeal of such a section and is to be confined to the particular circumstances of the case in which the declaration is made. The situation appears to me to be somewhat analogous to a case where valid provincial legislation in an otherwise unoccupied field ceases to be operative by reason of conflicting federal legislation.
Then, addressing himself to the question whether there was, in the case before him, an abrogation or abridgement of “the right of the individual to equality before the law and the protection of the law”, he expressed his position and that of this Court as follows: (at p. 297)
I think that the word “law” as used in s. 1(b) of the Bill of Rights is to be construed as meaning “the law of Canada” as defined in s. 5(2) (i.e. Acts of the Parliament of Canada and any orders, rules or regulations thereunder) and without attempting any exhaustive definition of “equality before the law” I think that s. 1(b) means at least that no individual or group of individuals is to be treated more harshly than another under that law, and I am therefore of opinion that an individual is denied equality before the law if it is made an offence punishable at law, on account of his race, for him to do something which his fellow Canadians are free to do without having committed any offence or having been made subject to any penalty.
It is only necessary for the purpose of deciding this case for me to say that in my opinion s. 94(b) of the Indian Act is a law of Canada which creates such an offence and that it can only be construed in such manner that its application would operate so as to abrogate, abridge or infringe one of the rights declared and recognized by the Bill of Rights. For the reasons which I have indicated, I am therefore of opinion that s. 94(b) is inoperative.
And he added, by the way of postscript after referring to the dissenting reasons of Chief Justice Cartwright and Justice Pigeon, the following (at p. 298):
It may well be that the implementation of the Canadian Bill of Rights by the courts can give rise to great difficulties, but in my view full effect must be given to the terms of s. 2 thereof.
The present case discloses laws of Canada which abrogate, abridge and infringe the right of an individual Indian to equality before the law and in my opinion if those laws are to be applied in accordance with the express language used by Parliament in s. 2 of the Bill of Rights, then s. 94(b) of the Indian Act must be declared to be inoperative.
In Curr v. The Queen, supra, this Court was concerned, inter alia, with the relationship between ss. 1 and 2 of the Canadian Bill of Rights, a matter that had also engaged Ritchie J. in the Drybones case. In Curr, as in Drybones, the Court determined that s. 2 gave operative effect to the human rights and fundamental freedoms specified in s. 1 as well as to the additional protections listed in s. 2. The two sections read:
1. It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely,
(a) the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law;
(b) the right of the individual to equality before the law and the protection of the law;
(c) freedom of religion;
(d) freedom of speech;
(e) freedom of assembly and association; and
(f) freedom of the press.
2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to [then follow paras, (a) to (g). I have already quoted para. (f) which is relevant to the first point taken in this appeal.]
The majority judgment in Curr contains the following passage at pp. 896-897 which I reproduce here:
In considering the reach of s. 1(a) and s. 1(b), and, indeed, of s. 1 as a whole, I would observe, first, that the section is given its controlling force over federal law by its referential incorporation into s. 2; and, second, that I do not read it as making the existence of any of the forms of prohibited discrimination a sine qua non of its operation. Rather, the prohibited discrimination is an additional lever to which federal legislation must respond. Putting the matter another way, federal legislation which does not offend s. 1 in respect of any of the prohibited kinds of discrimination may nonetheless be offensive to s. 1 if it is violative of what is specified in any of the clauses (a) to (f) of s. 1. It is, a fortiori, offensive if there is discrimination by reason of race so as to deny equality before the law. That is what this Court decided in Regina v. Drybones and I need not say no more on this point.
It is, therefore, not an answer to reliance by the appellant on s. 1(a) and s. 1(b) of the Canadian Bill of Rights that s. 223 does not discriminate against any person by reason of race, national origin, colour, religion or sex. The absence of such discrimination still leaves open the question whether s. 223 can be construed and applied without abrogating, abridging or infringing the rights of the individual listed in s. 1(a) and s. 1(b). What the appellant pointed to in s. 1 (a) was the guarantee of “due process of law”, and his contention under s. 1 (b) was that s. 223 denied him “the protection of the law”. I shall deal with these submissions in turn.
In the Lavell case, Ritchie J. who delivered the majority judgment referred to the quoted passage from the Curr case in these words: (at pp. 1363-1364)
My understanding of this passage is that the effect of s. 1 of the Bill of Rights is to guarantee to all Canadians the rights specified in paragraphs (a) to (f) of that section, irrespective of race, national origin, colour or sex. This interpretation appears to me to be borne out by the French version which reads:
1. Il est par les présentes reconnu et déclaré que les droits de l’homme et les libertés fondamentales ci-après énoncés ont existé et continueront à exister pour tout individu au Canada quels que soient sa race, son origine nationale, sa couleur, sa religion ou son sexe:
…
It was stressed on behalf of the respondents that the provisions of s. 12(1)(b) of the Indian Act constituted “discrimination by reason of sex” and that the section could be declared inoperative on this ground alone even if such discrimination did not result in the infringement of any of the rights and freedoms specifically guaranteed by s. 1 of the Bill.
I can find no support for such a contention in the Curr case in which, in any event, no question of any kind of discrimination was either directly or indirectly involved. My own understanding of the passage which I have quoted from that case was that it recognized the fact that the primary concern evidenced by the first two sections of the Bill of Rights is to ensure that the rights and freedoms thereby recognized and declared shall continue to exist for all Canadians, and it follows, in my view, that those sections cannot be invoked unless one of the enumerated rights and freedoms has been denied to an individual Canadian or group of Canadians. Section 2 of the Bill of Rights provides for the manner in which the rights and freedoms which are recognized and declared by s. 1 are to be enforced and the effect of this section is that every law of Canada shall “be so construed and applied as not to abrogate, abridge or infringe or authorize the abrogation, abridgment or infringement of any of the rights and freedoms herein recognized and declared…” (i.e. by s. 1). There is no language anywhere in the Bill of Rights stipulating that the laws of Canada are to be construed without discrimination unless that discrimination involves the denial of one of the guaranteed rights and freedoms, but when, as in the case of The Queen v. Drybones, supra, denial of one of the enumerated rights is occasioned by reason of discrimination, then, as Mr. Justice Laskin has said, the discrimination affords an “additional lever to which federal legislation must respond.”
In view of the foregoing observations by this Court in the Curr and Lavell cases in their bearing on the Drybones case, it is plain to me that unless the Drybones case is to be overruled, its principle must be given effect here. The result is that s. 120 of the National Defence Act must be held to be inoperative in so far as it subjects members of the armed forces to a different and, indeed, more onerous liability for a breach of the ordinary law as applicable to other persons in Canada who are also governed by that law.
I do not see anything in the judgment of the Federal Court of Appeal in Praia v. Minister of Manpower and Immigration[6], or in the judgment of this Court in The Queen v. Burnshine[7], that affects my conclusion. Prata involved simply an application of provisions of the Immigration Appeal Board Act, R.S.C. 1970, c. I-3, limiting the discretion and power of the Board to stay an order of deportation where a certificate is filed by the Minister and the Solicitor General with the Board stating that by reason of security or intelligence reports it would be against the national interest for the Board to stay deportation. Jackett C.J. saw no abrogation or abridgment of “equality before the law” under s. 1(b) of the Canadian Bill of Rights in the provision made for the certificate of the two Ministers. This was not a case of an irrelevant discrimination or of an unreasonable classification but rather a situation comporting with the proper administration of immigration policy. Although Thurlow J. (as he then was) dissented on the point, I find Jackett C.J.’s approach to be more cogent.
Prata came to this Court after it had decided The Queen v. Burnshine: see [1976] 1 S.C.R. 376. This Court sustained Praia on the Canadian Bill of Rights point for the reasons given by Jackett C.J. It also adverted to what was said by the majority in the Burnshine case, namely, that “legislation dealing with a particular class of people is valid if it is enacted for the purpose of achieving a valid federal objective” (at p. 382 of [1976] 1 S.C.R.). I take it that “valid” as first used in this quoted sentence refers to operative effect since there was no violation of the Canadian Bill of Rights, nor was constitutionality in issue, as might be suggested by the phrase “valid federal objective”. The issue in the Burnshine case is far removed from that in the present case. There the question was whether a provision of the Prisons and Reformatories Act, R.S.C. 1970, c. P-21, denied “equality before the law” when it prescribed different punishments for young offenders in a specified age group and in a specified area (British Columbia) than for young offenders in another age group or in another area of Canada. The British Columbia Court of Appeal concluded that the Drybones case applied but this application was rejected by the majority in this Court. Although the operation of the provi