Bilodeau-Massé v. Canada (Attorney General)

Bilodeau-Massé v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2017-06-19
Neutral citation
2017 FC 604
File numbers
T-1159-16
Notes
A correction was made on February 15, 2018.
Reported Decision
Decision Content
Date: 20170619
Docket: T-1159-16
Citation: 2017 FC 604
[ENGLISH TRANSLATION]
Ottawa, Ontario, June 19, 2017
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
JIMMY BILODEAU-MASSÉ
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
JUDGMENT AND REASONS
I. Introduction
[1] Under subsection 52(1) of the Constitution Act, 1982, adopted as Schedule B to the Canada Act 1982, 1982, c. 11 (U.K.), 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. In this case, does the Federal Court have jurisdiction to rule on the validity of subsections 140(1) and (2) of the Corrections and Conditional Release Act, SC 1992, c. 20 [CCRA], and, if it does, would it be appropriate to grant declaratory relief today in this case?
[2] At issue is the extent of the obligations of the Parole Board of Canada [the Board] with respect to natural justice, the law and/or the Canadian Charter of Rights and Freedoms – Part I of the Constitution Act, 1982 [Charter], when, following the suspension of a long-term supervision order [LTSO], it decides under subsection 135.1(6) of the CCRA to maintain the suspension of the LTSO and/or to recommend that an information be laid charging the offender with an offence under section 753.3 of the Criminal Code, RSC 1985, c. C-46.
[3] Subsection 140(1) of the CCRA stipulates that a hearing is mandatory in the cases listed in paragraphs (a) to (e) of subsection (1). However, according to subsection 140(2) of the CCRA, the Board has the discretion to hold a hearing in other cases, which includes a post-suspension hearing following the suspension of an LTSO (section 135.1 of the CCRA).
[4] These provisions are reproduced below:
140(1) The Board shall conduct the review of the case of an offender by way of a hearing, conducted in whichever of the two official languages of Canada is requested by the offender, unless the offender waives the right to a hearing in writing or refuses to attend the hearing, in the following classes of cases:
140(1) La Commission tient une audience, dans la langue officielle du Canada que choisit le délinquant, dans les cas suivants, sauf si le délinquant a renoncé par écrit à son droit à une audience ou refuse d’être présent :
(a) the first review for day parole pursuant to subsection 122(1), except in respect of an offender serving a sentence of less than two years;
a) le premier examen du cas qui suit la demande de semi-liberté présentée en vertu du paragraphe 122(1), sauf dans le cas d’une peine d’emprisonnement de moins de deux ans;
(b) the first review for full parole under subsection 123(1) and subsequent reviews under subsection 123(5), (5.01) or (5.1);
b) l’examen prévu au paragraphe 123(1) et chaque réexamen prévu en vertu des paragraphes 123(5), (5.01) et (5.1);
(c) a review conducted under section 129 or subsection 130(1) or 131(1) or (1.1);
c) les examens ou réexamens prévus à l’article 129 et aux paragraphes 130(1) et 131(1) et (1.1);
(d) a review following a cancellation of parole; and
d) les examens qui suivent l’annulation de la libération conditionnelle;
(e) any review of a class specified in the regulations.
e) les autres examens prévus par règlement.
(2) The Board may elect to conduct a review of the case of an offender by way of a hearing in any case not referred to in subsection (1).
(2) La Commission peut décider de tenir une audience dans les autres cas non visés au paragraphe (1).
[5] The applicant, Jimmy Bilodeau-Massé, is a long-term offender subject to an LTSO. In this case, the Board maintained the suspension of the LTSO and recommended that an information be laid charging the applicant with an offence under section 753.3 of the Criminal Code. In addition, in exercising the discretion conferred upon it under subsection 140(2) of the CCRA, it determined that an oral hearing was not warranted in this case, hence this application for judicial review and declaratory relief.
[6] The Attorney General of Canada is the respondent in this case. In accordance with section 57 of the Federal Courts Act, RSC 1985, c. F-7, a notice of constitutional question was duly served on the respondent, as well as on the attorney general of each province, though they decided not to participate in the hearing. It is not disputed that subsection 91(27) of the Constitution Act, 1867 confers on Parliament exclusive jurisdiction over criminal law and procedure (except the constitution of courts of criminal jurisdiction), that the provisions of the CCRA and the Criminal Code on the supervision of long-term offenders in the community fall under federal jurisdiction, and that the legality of any decision by the Board may be reviewed by the Federal Court under sections 18 and 18.1 of the Federal Courts Act.
[7] This Court heard the parties’ submissions on the merits concurrently with the application for judicial review and declaratory judgment of another long-term offender regarding a similar decision by the Board, raising the same questions of administrative and constitutional law (see Blacksmith v Attorney General of Canada, 2017 FC 605).
[8] At the hearing, counsel for the two applicants stated that the applicants were abandoning any claim regarding the violation of section 9 of the Charter, which provides that “[e]veryone has the right not to be arbitrarily detained or imprisoned.” Nevertheless, counsel for the applicants argues that the lack of guarantee of a post-suspension hearing violates section 7 of the Charter [constitutional question]. For one, the suspension of the LTSO and the resulting reincarceration affect the offender’s residual liberty. Moreover, the principles of fundamental justice require that the offender be able, in all cases, to appear in person before the Board for a post-suspension hearing. The hearing must be held prior to the expiration of the statutory time limit of 90 days set out in section 135.1 of the CCRA, unless the offender waives this right in writing or refuses to attend the hearing. In addition, the two applicants argue that the Board also breached procedural fairness, or otherwise rendered an unreasonable decision, by refusing to hold a post-suspension hearing, which warrants Court intervention.
[9] Although the Federal Court has jurisdiction to decide the constitutional question and make a formal declaration of invalidity, the respondent defends the constitutionality of subsections 140(1) and (2) of the CCRA. The Board acted under the authority of the law. The discretion to hold a hearing granted to the Board in subsection 140(2) of the CCRA does not violate section 7 of the Charter: the offender’s freedom is not involved, and the discretion to hold a post-suspension hearing is not incompatible with the principles of fundamental justice. The Court must interpret the legislation in a manner that is consistent with these principles. A hearing is not necessarily required in all cases. Because the authority to hold a post-suspension hearing is not removed, subsections 140(1) and (2) of the CCRA do not violate section 7 of the Charter. Additionally, any violation is justifiable under section 1. Regardless, there was no breach of procedural fairness, and the impugned decision by the Board is reasonable in all regards.
[10] The standard of correctness applies to the review of the constitutional question, to the determination of the legal scope of the rules of natural justice or procedural fairness, as well as to the question as to whether — given the particular facts of the case — the Board breached procedural fairness by maintaining the suspension of the LTSO and recommending that an information be laid charging the offender with an offence under section 753.3 of the Criminal Code, without having held a hearing. At the same time, the standard of reasonableness applies to the review of the Board's determinations regarding the case (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] SCJ No. 9; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] SCJ No. 12 [Khosa]; Gallone v. Canada (Attorney General), 2015 FC 608, [2015] FCJ No. 598 at paragraph 7 [Gallone]; Laferrière v. Canada (Attorney General), 2015 FC 612, [2015] FCJ No. 578 [Laferrière FC]).
[11] In light of the particular facts of the case and the applicable federal statutory provisions, and having considered all of the parties’ submissions and the relevant case law, I am satisfied that the Federal Court has jurisdiction to decide the constitutional question. It is also appropriate to issue a declaratory judgment on the constitutionality of subsections 140(1) and (2) of the CCRA and clarifying the extent of the Board’s obligations under the principles of fundamental justice. The immediate result of the declaratory judgment that follows these reasons will be to bind the parties to the case and the tribunal against which it is rendered.
II. Background
[12] The applicant is single and has no children. He is currently 24 years old. He has various cognitive limitations and the mental age of a child in elementary school. He has attention deficit hyperactivity disorder, conduct disorders, borderline personality disorder and a potential autism spectrum disorder. He is unable, partially and permanently, to ensure the protection of his person, to exercise his civil rights and to administer his property. Since 2015, the applicant has been under the protection of the Public Curator of Quebec.
[13] The applicant’s record shows persistent criminal behaviour since his criminal record began in 2008 and a violence problem characterized by a strong, immature and explosive personality. However, despite his intellectual disability, the applicant does not have any psychiatric pathology that could explain his violent behaviour. The problem seems to be that when he gets bored or is facing a situation he feels is unfair, he tends to break the rules or demonstrate disruptive behaviour. Reintegration potential, accountability and motivation are all assessed as low. That being said, medication plays a key role in managing the risk the applicant poses to himself and society.
[14] On January 23, 2012, the applicant was charged with assault with a weapon and assault causing bodily harm against two staff members of the Institut universitaire en santé mentale de Québec. On January 22, 2012, he hit a nurse on the head twice with an iron bar while she was sitting at the station. He was also charged with uttering death threats the following day against another staff member and for failing to comply with an undertaking to be of good behaviour. The applicant pleaded guilty to these criminal charges.
[15] On February 25, 2013, the Court of Quebec ordered a pre-sentence psychiatric assessment as well as a dangerous or long-term offender assessment. The applicant was found to be responsible for his actions. On July 17, 2013, the Court of Quebec sentenced him to nine months in prison, in addition to the time already served on remand. At that time, he was declared a long-term offender.
[16] The applicant is under the legal authority of the Correctional Service of Canada [Service] and is subject to an LTSO that will expire in 2019. Specifically, the Board imposed on him supervision conditions it considered reasonable and necessary to protect society and facilitate his reintegration. The LTSO, which was amended a few times, stipulates that he must reside at the Martineau Community Correctional Centre [CCC], a specialized centre for offenders with mental health issues; participate in a treatment program to address his risk factors; and take medication as prescribed by a health practitioner. He was released into the community on April 16, 2014.
[17] The Service suspended the applicant’s community supervision multiple times as a result of various breaches of these conditions. Each time, he was reincarcerated at the Regional Mental Health Centre at Archambault Institution.
[18] Although post-suspension interviews were conducted with Service representatives and the applicant’s case was referred to the Board three times, he appeared before the Board in person only once. This was in August 2015. On that occasion (the sixth suspension), the Board recommended that an information be laid under section 753.3 of the Criminal Code. Charges for breach of LTSO were laid in September 2015. During the applicant’s appearance, his counsel requested a reassessment. He was declared fit to appear. In October 2015, the case was postponed, and the applicant was released on a promise to appear. He returned to the Martineau CCC on October 19, 2015, under a residency condition.
[19] On October 31, 2015, the applicant’s LTSO was suspended a seventh time. The applicant had stolen the medical identity cards of two other offenders and had demonstrated threatening or intimidating behaviour — actions that he later said he regretted. The case was referred to the Board, which agreed to moderate. On January 13, 2016, the Board conducted a paper review and decided to cancel the suspension of the LTSO, while formally advising the applicant that it was dissatisfied with his behaviour and expected the supervisors not to tolerate any further misconduct. Given the regret the applicant expressed, the Board did not recommend that additional charges be laid against him under section 753.3 of the Criminal Code.
[20] On March 30, 2016, the Service suspended the applicant’s supervision for the eighth time. The applicant had threatened a resident of the unit and had attempted to strangle another. He then fled from the unit. He was found several hours later. While fleeing, he hit and damaged a vehicle.
[21] On April 14, 2016, the applicant was confronted with the facts alleged against him during a post-suspension interview conducted by an authorized Service representative. The Service maintained the suspension and referred the case to the Board.
[22] On April 22, 2016, the Service prepared an “Assessment for Decision” [Assessment], including a recommendation that an information be laid charging the applicant with an offence under section 753.3 of the Criminal Code. The Assessment, which must be read in conjunction with the most recent correctional plan update and the applicant’s criminal profile, was shared with the applicant in late May 2016.
[23] On June 5, 2016, counsel for the applicant submitted written representations to the Board, while requesting an in-person post-suspension hearing on the ground that the applicant [translation] “has limited intellectual abilities, and his situation raises serious questions about the appropriate medication and treatment for his condition.” Counsel also submitted the report prepared by Dr. Pierre Gagné, Director of the Clinique médico-légale de l'Université de Sherbrooke, indicating that the applicant’s medication was not appropriate for his situation and therefore impeded his ability to comply with his LTSO conditions.
[24] The request for a post-suspension hearing was based on two arguments:
a) Subsection 140(2) of the CCRA — which provides for a discretionary post-suspension hearing for offenders subject to an LTSO — violates sections 7 and 9 of the Charter [the Charter argument]; and
b) The hearing is all the more important in the applicant’s case in order to ensure procedural fairness, because he has limited intellectual abilities and his situation raises serious questions about the appropriate medication and treatment for his condition [the administrative law argument].
[25] The Board considered the information in its possession to be [translation] “reliable and relevant” and enabled it to make an [translation] “informed decision.” With regard to the Charter and administrative law arguments, the Board said nothing in its June 7, 2016, decision except that it had [translation] “read all of the representations from [counsel for the applicant],” but ultimately did not share her opinion because [translation] “[i]t finds that a hearing is not warranted.” The Board noted that the specialists agreed that, despite his intellectual disability, the applicant had no psychiatric illness and was responsible for his actions. Examining his behaviour in terms of public safety and the protection of society, the Board maintained the suspension of the LTSO and recommended that a new information be laid under section 753.3 of the Criminal Code, finding that no supervision program could adequately protect society against the applicant’s risk of recidivism and that, by all appearances, he had failed to comply with his supervision conditions.
[26] That decision is the subject of this application.
[27] On June 21, 2016, new criminal charges were brought against the applicant for breach of LTSO.
[28] On November 10, 2016, the applicant pleaded guilty to those charges and received a concurrent sentence of 18 months in prison.
III. Mootness of certain questions raised or of certain remedies sought by the applicant
[29] Recall that under subsection 18(1) of the Federal Courts Act, subject to section 28, the Federal Court has exclusive original jurisdiction (a) to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal; and (b) to hear and determine any application or other proceeding for relief in the nature of relief contemplated by paragraph (a), including any proceeding brought against the Attorney General of Canada, to obtain relief against a federal board, commission or other tribunal. In addition, subsections 18.1(3) and (4) of the Federal Courts Act authorize the Court to declare invalid or unlawful or quash a decision of a federal board, commission or other tribunal and, if applicable, to refer the matter back for determination in accordance with such directions as it considers to be appropriate — meaning that the Court may order that a hearing be held in cases of breach of natural justice or procedural fairness, and particularly of violation of the law.
[30] Moreover, in accordance with the well-established principles on prerogative writs and other discretionary remedies, a court of law may refuse to hear an application or to decide a question that has become moot (Borowski v. Canada (Attorney General), [1989] 1 SCR 342 [Borowski]). And, even when an unlawful act was committed and a dispute still exists between the parties, the appropriate remedy is left to the Court’s discretion. For example, the Federal Court may issue a declaration in lieu of any other judicial remedy (MiningWatch Canada v. Canada (Fisheries and Oceans), 2010 SCC 2, [2010] SCJ No. 2 at paragraph 43 [MiningWatch Canada]; Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] SCJ No. 3 at paragraphs 2 and 46-47).
[31] During the hearing before this Court, counsel for the applicant was confronted with the question as to whether this application for judicial review had become moot — either partially or totally — following the filing of charges under section 753.3 of the Criminal Code and her client’s subsequent conviction. The questionable actions that resulted in the suspensions of the LTSO — including the one in spring 2016 that led to the impugned decision in this case — are not really at issue.
[32] However, counsel for the applicant argues that her client continues to be subject to an LTSO, meaning that the problematic situation alleged in this application for judicial review and declaratory relief is likely to recur more than once (for proof, one need only look at the number of suspensions of the LTSO in this case). Furthermore, other offenders are in a similar situation, which is notably the case for the applicant in the other case heard concurrently (Blacksmith v. Attorney General of Canada, 2017 FC 605). The suspensions of the LTSO are frequent, and the statutory time limit of 90 days for review is very short. In addition, the applicants make it a compelling question of law: because credibility issues are often at play before the Board, the principles of fundamental justice protected under section 7 of the Charter require that an oral post-suspension hearing be held when an LTSO is suspended. This is not frivolous: Charter and/or administrative law arguments are serious and warrant acknowledgement and an adequate response by this Court.
[33] Counsel for the respondent does not challenge this rhetoric that the offender must return to square one if this Court does not clarify the issue raised by the applicants in the meantime.
[34] I agree with counsel.
[35] Quashing the June 7, 2016 decision and referring the matter back to the Board for redetermination could no longer have any practical or legal effect on what was already accomplished; the fact remains that criminal charges were laid and that the applicant was found guilty of committing the offence set out in section 753.3 of the Criminal Code. However, the Court can still do something useful by deciding the real issue in this case: is the offender automatically entitled to an oral hearing as in the cases referred to in subsection 140(1) of the CCRA?
[36] The Charter and/or administrative law arguments were debated at length at the hearing, so, at first glance, it would seem appropriate to issue a declaratory judgment to clarify the question at issue. More often than not — when it would serve no useful purpose to quash a decision or order the resumption of an administrative process — in exercising judicial discretion, a declaratory judgment is a valid alternative remedy to prevent the repetition of systemic administrative practices that violate the law (MiningWatch Canada at paragraphs 50-52), or even the Charter or the Canadian Bill of Rights, SC 1960, c. 44 (Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177 at paragraphs 76-79, 81-85 and 124-125 [Singh]); Re Singh and M.E.I., 1986 CanLII 3950 (FCA), [1986] 3 FCR 388 at paragraphs 8-9). For a recent example of a declaratory judgment of general application from the Federal Court affecting an entire group of people who challenged the constitutionality and/or validity of certain provisions of the Citizenship Act, RSC 1985, c. C-29, as amended by the Strengthening Canadian Citizenship Act, SC 2014, c. 22, see: Hassouna v. Canada (Citizenship and Immigration), 2017 FC 473, [2017] FCJ No. 544. In addition to prohibiting the Minister of Citizenship and Immigration from applying subsections 10(3) and (4) of the Citizenship Act, RSC 1985, c. C-29, as amended, against the applicants, because those subsections are incompatible with the Canadian Bill of Rights, SC 1960, c. 44, the Court declared subsections 10(1), (3) and (4) to be inoperative, because they violate paragraph 2(e) of the Canadian Bill of Rights in a manner that cannot be avoided by interpretation. In so doing, the Court stayed judgment for a period of 60 days or for any other period that the Court may authorize at the request of one of the parties.
[37] However, a declaration of unconstitutionality is a discretionary remedy (Operation Dismantle v. The Queen, [1985] 1 SCR 441 at page 481 [Operation Dismantle], citing Solosky v. The Queen, [1980] 1 SCR 821 [Solosky]) and can be “an effective and flexible remedy for the settlement of real disputes” (R v. Gamble, [1988] 2 SCR 595 at page 649 [Gamble]). Therefore, a court can properly issue a declaratory remedy so long as it has the jurisdiction over the issue at bar, the question before the court is real and not theoretical, and the person raising it has a real interest to raise it (Canada (Prime Minister) v. Khadr, 2010 SCC 3 at paragraph 46 [Khadr]). This Court must first ascertain that it has jurisdiction over the issue, and, if it does, be satisfied that its declaratory judgment may have a useful effect on the application of the CCRA when the Service refers a case to the Board following the suspension of an LTSO.
IV. Federal Court’s jurisdiction to grant declaratory relief with respect to a constitutional and administrative issue
[38] Firstly, I am satisfied that this Court has jurisdiction to render a declaratory judgment on the constitutional validity, applicability or operability of subsections 140(1) and (2) of the CCRA, as well as on the extent of the Board’s obligations under the principles of fundamental justice and/or administrative law.
A. Words conferring jurisdiction
[39] The Federal Court, a successor to the Exchequer Court of Canada, established in 1875, was maintained in 1970 as an “additional court of law, equity and admiralty in and for Canada, for the better administration of the laws of Canada” (section 4 of the Federal Courts Act). With the status of “a superior court of record having civil and criminal jurisdiction” (section 4 of the Federal Courts Act), the Federal Court may grant declaratory relief against any federal board, commission or other tribunal (subsection 18(1) of the Federal Courts Act) or against the Crown, including an officer, servant or agent of the Crown for anything done or omitted to be done in the performance of the duties of that person (section 17 of the Federal Courts Act). However, to better understand the genesis of the Federal Court’s jurisdiction, it is appropriate to review the background, without repeating everything that might have been said on this topic in previous decisions (for example Felipa v. Canada (Citizenship and Immigration), 2010 FC 89 [Felipa FC], reversed by 2011 FCA 272 though for reasons unrelated to the historical analysis of the Court’s jurisdiction).
[40] In 1875, the legislation creating the Exchequer Court gave it concurrent original jurisdiction in “. . .any matter which might in England be the subject of a suit or action in the Court of Exchequer on its revenue side against the Crown,” while the procedure was in principle “regulated by the practice and procedure of Her Majesty’s Court of Exchequer at Westminster” (see sections 58 and 61 of the Supreme and Exchequer Court Act, SC 1875, c. 11). At that time, in England, the Court of Exchequer was a high court (Supreme Court of Judicature Act, 1873 (U.K.), 36 & 37 Vict., c. 66, section 3, 4). While the Exchequer Court’s jurisdiction was originally limited to revenue-related actions against the federal government, over the years, it gradually extended to actions against the Crown, in addition to admiralty matters, suits between citizens regarding industrial property (now intellectual property), and tax, citizenship and railway cases.
[41] Long before the Federal Court was granted statutory jurisdiction in 1970 to review the legality of decisions by a federal board, commission or other tribunal (section 18 of the Federal Courts Act), aside from the petition of right procedure, it was possible to obtain a declaratory judgment from the Exchequer Court as additional relief against the Crown, by bringing an ordinary action against the Attorney General of Canada. For example, in Jones et Maheux v. Gamache, [1969] SCR 119 [Jones et Maheux], the Supreme Court of Canada ruled that the Exchequer Court had jurisdiction to issue a declaration of nullity of the General By-laws of the Quebec Pilotage Authority establishing classes of pilots — the pilotage authority for the district of Quebec being the Minister of Transport. In his action, the plaintiff said that important and prejudicial restrictions in the exercise of his profession were inflicted upon him as a direct consequence of the application of the invalid by-laws. Ultimately, the Supreme Court dismissed without costs the action against the individual defendants, but, at the same time, allowed the plaintiff’s action against the Minister of Transport as “officer of the Crown for anything done or omitted to be done in the performance of his duty as such officer” (paragraph 29(c) of the Exchequer Court Act, RSC 1952, c. 98).
[42] The Supreme Court’s conclusion in 1968 in Jones et Maheux is unsurprising and is consistent with a long line of case law. Initially, the declaratory judgment was a discretionary remedy that could be granted in England by the Courts of equity, long before the adoption in 1850 of the Chancery Act (U.K.), 13 & 14 Vict., c. 35 and in 1852 of the Chancery Procedure Amendment Act (U.K.), c. 86, as well as the clarifications made in 1883 by the rules committee established under the Supreme Court of Judicature Act, 1873 (U.K.), 36 & 37 Vict., c. 66, on the declaratory authority of the High Court of Justice. The Court of Exchequer in England also had equitable jurisdiction to issue declaratory judgments against the Crown (Lazar Sarna, The Law of Declaratory Judgments, Thomson Carswell, Fourth edition, 2016 at pages 9-10 and 24-25 [Sarna]).
[43] That being said, it is important not to confuse the declaratory jurisdiction of the Courts of equity with that of the superior courts in prerogative writs. This important distinction was highlighted in 1975 by Justice Addy, who explained the following in B v Canada (Commission of Inquiry Relating to the Department of Manpower and Immigration), [1975] FC 602 at paragraphs 14 to 17:
[14] At common law, the prerogative writs of prohibition, certiorari and mandamus (i.e., the old prerogative writ of mandamus as opposed to equitable mandamus to enforce a legal right or as contrasted with the equitable mandatory order or injunction) were granted exclusively by the common law Courts of the King’s or Queen’s Bench and constituted a class of process by which inferior bodies, including those which are an emanation of the Crown, were answerable to the controlling jurisdiction of superior Courts. The proceedings, leading to the issue of such prerogative writs, could not be instituted by ordinary action for the simple reason that the Courts and the judicial bodies, who were subject to such process being used against them, were not liable to be sued; the only persons liable to be sued were individuals and corporations. Therefore, the proceedings for prerogative writs had to be instituted by special application to the Court by way of motion: see Rich v. Melancthon Board of Health (1912), 2 D.L.R. 866, 26 O.L.R. 48, and Hollinger Bus Lines Ltd. v. Ontario Labour Relations Board, [1952] 3 D.L.R. 162 at pp. 167-8, [1952] O.R. 366 at p. 379).
[15] On the other hand, relief by way of injunction, declaratory judgment, mandatory injunction or equitable mandatory order were exclusive equitable remedies and the proceedings were instituted in the Court of Chancery by means of a bill in equity. The Exchequer Court in England originally possessed also the equitable jurisdiction to issue declaratory judgments against the Crown.
[16] A true distinction between these remedies became obscured to some extent when the Courts of equity and of common law were fused and, in more recent years, the distinction became further obscured because in most jurisdictions all of these remedies, whatever may have been their origin, are now enforceable in the same manner, that is, by way of direct order of the Court. Furthermore, where the proceedings for the prerogative common law remedies, for the reasons previously stated, could be initiated only by special application to the Court, in certain Courts today such as the Federal Court of Canada (see Rule 603), the proceedings may now be instituted by way of a statement of claim.
[17] But neither the fact that all the above-mentioned remedies may now be obtained from the same forum, nor the fact that the relief may be initiated by means of the same type of proceedings, nor the fact that the method of enforcing all of these remedies (by Court order) is identical, in any way changes or alters their basic nature or purpose, and it is still the law that where prohibition or certiorari lies neither injunction nor any other equitable remedy such as specific performance, mandatory injunction or equitable mandamus will lie and the converse is equally true: see Hollinger Bus, supra, and Howe Sound Co. v. Int'l Union of Mine, Mill & Smelter Workers (Canada), Local 663 (1962), 33 D.L.R. (2d) 1, [1962] S.C.R. 318, 37 W.W.R. 646).
[My emphasis.]
[44] Furthermore, declaratory action has been particularly useful in cases where the validity of a procedure or the legality of an action undertaken by the Crown was challenged by a subject. This method was confirmed in Dyson v. Attorney General, [1911] 1 KB 410 (CA) [Dyson], where the Court of Appeal of England declared that a tax notice sent to the plaintiff (and to eight million other people) was not authorized by law. In that case, the defendant was the Attorney General, not the Crown, because for centuries before the English Court of Chancery, and particularly before a court of equity, it was the Attorney General who defended the interests of the Crown (Jones et Maheux at pages 129-131, citing Dyson). As could be expected, the declaratory action against the Crown became commonplace in Canada, Australia and New Zealand (Liebmann v. Canada (Minister of National Defence), [1994] 2 FC 3 (TD). In 1970, in transferring the supervisory jurisdiction over federal boards, commissions or other tribunals, Parliament took care to specify in section 18 of the Federal Court Act, RSC 1970 (2nd Supp.), c. 10, that in addition to the prerogative writs mentioned in the Trial Division, the Federal Court could render a declaratory judgment. The declaratory powers of a court of equity and a superior court were then concentrated in one federal court.
[45] Incidentally, apart from questions of interest or mootness, the Supreme Court of Canada had already recognized before the patriation of the Constitution, in Thorson v. Attorney General of Canada, [1975] 1 SCR 138 at pages 157-159, the right of taxpayers to invoke the interposition of a court of equity to challenge the constitutionality of legislation involving expenditure of public money where no other means of challenge was open. This continued with the coming into force of the Charter. For example, following the bringing of a declaratory action before the Trial Division, the Federal Court of Appeal allowed the appeal of a taxpayer, who had been unsuccessful at trial, who was challenging the constitutionality of section 231.4 of the Income Tax Act, RSC 1985, c. 1 (5th Supp.), and summonses issued by tax authorities pursuant to that provision. The Federal Court of Appeal ruled that they were inoperative under subsection 52(1) of the Constitution Act, 1982 (Del Zotto v. Canada, [1997] 3 FC 40, 147 DLR (4th) 457 (CA), rev’d on other grounds, [1999] 1 SCR 3).
[46] In A.G. Can. v. Law Society of B.C., [1982] 2 SCR 307 [Jabour], with regard to the declaratory action, the Supreme Court noted that “[t]his form of action takes on much greater significance in a federal system where it has been found to be efficient as a means of challenging the constitutionality of legislation” (page 323) [my emphasis]. While avoiding saying that the Federal Court did not have jurisdiction under section 17 of the Federal Courts Act to make a “Dyson” declaration (page 326), the Supreme Court took a pragmatic approach: the jurisdiction found in section 17 does not remove “[t]he jurisdiction of superior courts, and indeed other courts in the provinces, to review the constitutionality of federal statutes” (page 327) [my emphasis].
[47] In Canadian Transit Company v. Windsor (Corporation of the City), 2015 FCA 88 [Windsor FCA], Justice Stratas explains in paragraphs 56 to 58 how the Exchequer Court was able, since its establishment in 1875, like other Canadian courts, to review the validity of legislation for various proceedings against the Crown:
[56] In 1875, the Exchequer Court of Canada was created. Like all courts, it had to act according to law, interpreting and applying the law. At the time of the Exchequer Court’s birth, one law on the books was the Colonial Laws Validity Act, 1865 (U.K.), 28 & 29 Vict. c. 63. Under section 2 of that Act, all Canadian courts, including the Exchequer Court, had to declare “void and inoperative” any federal or provincial laws inconsistent with those of the Parliament of the United Kingdom, including the British North America Act, 1867: see also the discussion in Re Manitoba Language Rights, 1985 CanLII 33 (SCC), [1985] 1 S.C.R. 721 at page 746, 19 D.L.R. (4th) 1. The Exchequer Court recognized this power and understood that in appropriate cases it could decline to apply legislation that conflicted with a law of the Parliament of the United Kingdom: see, e.g., Algoma Central Railway Co. v. Canada (1901), 7 Ex. C.R. 239 at pages 254-255, rev’d on other grounds (1902), 1902 CanLII 76 (SCC), 32 S.C.R. 277, aff’d [1903] A.C. 478 (P.C.). Even before the Exchequer Court came into existence, other Canadian courts regularly exercised the power to declare legislation invalid or inoperative: see, e.g., R. v. Chandler (1868), 2 Cart. 421, 1 Hannay 556 (N.B.S.C.); Pope v. Griffith (1872), 2 Cart. 291, 16 L.C.J. 169 (Que. Q.B.); Ex p. Dansereau (1875), 2 Cart. 165 at page 190, 19 L.C.J. 210 (Que. Q.B.); L’Union St. Jacques v. Belisle (1872), 1 Cart. 72, 20 L.C.J. 29 (Que. Q.B.), rev’d (1874), L.R. 6 P.C. 31 (P.C.). Thus, from the very outset, all Canadian courts, including the Exchequer Court, could measure legislation up against laws of the Parliament of the United Kingdom, including the British North America Act, 1867, and determine whether they were invalid or inoperative.
[57] From 1875 to 1982, the doctrines of paramountcy and interjurisdictional immunity developed as part of the jurisprudence under sections 91 and 92 of the British North America Act, 1867. For example, as early as 1895, the doctrine of paramountcy was described as being “necessarily implied in our constitutional act,” one that had to be followed under the Colonial Laws Validity Act, 1865: Huson v. Township of South Norwich (1895), 1895 CanLII 1 (SCC), 24 S.C.R. 145 at page 149. These constitutional doctrines became part of the law that all Canadian courts, including the Exchequer Court, were bound to apply.
[58] And so the Exchequer Court did. In one case, it found that provincial water rights legislation, the Water Clauses Consolidation Act, 1897, R.S.B.C., c. 190, could not apply to lands owned by the federal Crown that fell under exclusive federal jurisdiction under subsection 91(1A) of the Constitution Act, 1867: The Burrard Power Company Limited v. The King, (1909), 12 Ex. C.R. 295, aff’d 1910 CanLII 48 (SCC), [1910] 43 S.C.R. 27, aff’d [1911] A.C. 87 (P.C.). In another case, it found that federal legislation, the Soldier Settlement Act, 1917, 9-10 Geo. V, c. 71, was intra vires the federal Parliament and if it conflicted with provincial legislation, it would prevail: R. v. Powers, [1923] Ex. C.R. 131 at page 133.
[48] In this case, the nexus between the Federal Court and the constitutional issue here arising is obviously the judicial review proceeding under section 18 of the Federal Courts Act against the decision by the Board, which in turn arises from the valid LTSO suspension proceedings clearly commenced by the Service pursuant to the CCRA. Devoid of any artifice, this is what enables this Court to intervene in the resolution of the very real dispute between the parties today. And, at the risk of repeating myself, the Federal Court’s jurisdiction to grant declaratory relief against the Crown in an action (subsection 17(1) and definition of “relief” in section 2 of the Federal Courts Act), or against any federal board, commission or other tribunal in an application for judicial review (section 18 of the Federal Courts Act), seems indisputable, unless that jurisdiction is otherwise assigned to the Federal Court