[1994] 1 F.C. 102
T-2927-91
Vancouver Island Peace Society, Anne A. Pask and Gregory P. Hartnell (Applicants)
v.
Her Majesty the Queen in the Right of Canada, Prime Minister of Canada, Minister of National Defence, Secretary of State for External Affairs, Minister of Transport and Minister of Environment (Respondents)
Indexed as: Vancouver Island Peace Society v. Canada (T.D.)
Trial Division, MacKay J.—Vancouver, June 9, 10, 11, 12; Ottawa, June 18, 1993.
Environment — Application for judicial review of two Orders in Council approving visits of nuclear-powered and nuclear-armed vessels to Canadian ports — Applicants alleging failure to meet requirements of EARPGO as no initial assessment of potentially adverse environmental effects of proposed visits, nor reference of proposal to Minister of Environment for public review — Impugned Orders not subject to EARPGO.
Crown — Prerogatives — Prerogative of Crown to provide for visit of foreign naval vessels to Canadian ports not affected by statutes identified by applicants — Orders in Council adopted within authority and discretion of Governor in Council under recognized prerogative power — Not subject to EARPGO — Claim of bad faith against Governor in Council unfounded.
Judicial review — Prerogative writs — Application for mandamus to require respondents to conduct initial assessment under EARPGO, s. 10(1), for certiorari to quash decisions of Governor in Council — Decisions made in exercise of prerogative powers of Crown in regard to international relations, national defence — Certiorari, mandamus unavailable where decision legislative, not administrative or judicial.
Federal Court jurisdiction — Trial Division — Exclusive jurisdiction in Trial Division under Federal Court Act, s. 18(1) to hear and determine proceeding against Crown, including originating motion for judicial review — Issues justiciable, to be considered on merits.
Evidence — Admissibility of affidavits — No weight given opinion evidence of affiants not experts under R. 482 — Evidence of experts inadmissible as concerning legal issues not ones of scientific or technical nature — Hearsay evidence now admissible where reliable, necessary — Portions of affidavits and exhibits relevant to issues before Court admissible as hearsay.
Practice — Parties — Joinder — Inclusion of Prime Minister as respondent inappropriate as no relief sought against him — Other Ministers joined as respondents proper parties — No statute or rule requiring Attorney General be joined as respondent in originating motion instead of Her Majesty the Queen — Failure to name A.G. in lieu of Her Majesty not bar to present application.
Practice — Pleadings — Motion to strike — Discretion to strike originating motion for judicial review exercised only where no basis for proceeding by originating motion.
This was an application for certiorari to quash two decisions (Orders in Council) made by the Governor in Council approving visits of nuclear carrying vessels (NCVs) and nuclear-propelled vessels (NPVs) to Canadian ports subject to certain conditions, and for mandamus to require the respondents to conduct an environmental screening or initial assessment under the Environmental Assessment and Review Process Guidelines Order (EARPGO). Those decisions were made after a report on the environmental effects of the visits was completed by the Department of National Defence; on the basis of an environmental assessment, the report concluded that there was sufficient confidence in the safety and high potential for insignificant adverse environmental impact associated with the visits of NCVs and NPVs to permit the visits to continue. The applicants argued that the two Orders in Council were made by improper resort to the prerogative power since Parliament has by statute withdrawn from the prerogative the capacity to adopt these Orders. Moreover, it was urged that the Orders failed to comply with the requirements of EARPGO and that they were made in bad faith, based upon an inadequate environmental review. This application raised a number of procedural and substantive issues, namely: 1) a preliminary motion to strike the application; 2) the Court’s jurisdiction in relation to the respondents, the Orders in Council and the relief sought; 3) the admissibility of the evidence filed by the applicants; 4) the Court’s jurisdiction in relation to the Orders in Council as determinations made in exercise of the royal prerogative; 5) the application of EARPGO and 6) the applicants’ claim of bad faith on the part of the Governor in Council.
Held, the application should be dismissed.
1) Where there is a preliminary motion to strike an originating motion, the Court must dispose of the preliminary motion before dealing with the merits of the originating motion. Within the inherent jurisdiction of the Court, in controlling its own process, there is discretion to strike an originating motion seeking judicial review, but that discretion would be exercised only where it is clear that there is no basis for proceeding by originating motion. In the circumstances of this application, and in light of the timing of the respondents’ preliminary motion, the Court should not exercise its discretion to strike the originating motion.
2) Inclusion of the Prime Minister as a respondent, where no relief is sought in relation to decisions made in law by his office, was clearly inappropriate. The other Ministers joined as respondents are proper parties where an order is sought against each of them to require compliance, by mandamus, with EARPGO. There is no statute or rule which requires that the Attorney General of Canada be joined as respondent in an originating motion, rather than Her Majesty the Queen, if a decision of the Crown by the Governor in Council is to be questioned. Where proceedings are brought against federal agencies, subsection 18(1) of the Federal Court Act vests exclusive jurisdiction in the Trial Division to hear and determine any proceeding against the Crown, which should include originating motions for judicial review in view of the recent amendments to the Act. Where the respondents named in an originating motion include Her Majesty the Queen, failure to name the Attorney General in lieu of Her Majesty should not be a bar to considering the application which relates to orders in council. Certiorari, or other relief available by judicial review, does not lay where the decision questioned is legislative in nature, rather than administrative or judicial. A legislative decision that is beyond consideration by the Court must usually be discretionary, general in its application and based on the exercise of judgment after assessing issues of policy which lie outside the ambit of typical concerns or methods of the courts. Policy concerns, in light of Canada’s international relations, national security and defense interests were the prime factors upon which the Orders in Council were based herein. These Orders were clearly decisions legislative in nature, made in the exercise of discretion and beyond the scope of judicial review so far as they lay within the jurisdiction of the Governor in Council under the prerogative power. The applicants’ motion was not one that simply questioned the merits of the decisions made. The issues raised warranted consideration on their merits and should not be classed as non-justiciable. The assessment of the environmental effects of any proposal is a matter entirely within the authority of the “initiating department”, as is the determination of whether public concern about a proposal is such that a public review is desirable. The Department of National Defence determined herein that a public review was not desirable since none was recommended or initiated. No legal duty existed, under EARPGO or otherwise, at this stage, to conduct a public review and therefore, there was no basis for exercise of the Court’s discretion to intervene by an order in the nature of mandamus.
3) Those portions of affidavits described by the respondents as raising non-justiciable issues were relevant but only to the issue of bad faith of the Governor in Council raised by the applicants. None of the affiants called by the applicants qualified as an expert witness and the Court was not bound to give weight to their opinions as it would to opinions of experts qualified under Rule 482. Moreover, expert evidence was irrelevant to the primary issues before the Court for those were legal issues concerning the authority of the Governor in Council and the process followed in reaching the decisions here questioned and not matters of a scientific or technical nature. In so far as the affidavits filed were opinions of the many affiants, they did not comply with Rule 332(1) and were therefore inadmissible. Hearsay evidence is now admissible on a principled basis, the governing principles being the reliability of the evidence and its necessity. Those portions of the affidavits and exhibits characterized as hearsay by the respondents and relevant to the issues before the Court were therefore admissible.
4) The royal prerogative is comprised of the residue of miscellaneous powers, rights, privileges, immunities and duties accepted under our law as vested in Her Majesty and exercised by the Governor in Council acting on advice of Ministers. The prerogative power is subject to the doctrine of parliamentary supremacy and Parliament, by statute, may withdraw or regulate the exercise of that power. None of the statutes and regulations referred to by the applicants, namely the Atomic Energy Control Act and regulations, the Canada Shipping Act, the Dangerous Goods Shipping Regulations and the Canadian Environmental Protection Act, affects the Crown’s prerogative to provide for visits of naval vessels, whether nuclear powered or nuclear capable, of friendly foreign countries. None of them affects that power of the Crown by necessary implication. In enacting these statutes and regulations, Parliament had no intention to withdraw or to fetter the prerogative of the Crown to provide for the visit of NPVs and NCVs to Canadian ports, in pursuance of Canada’s international relations and defence policy. The Orders in Council were adopted within the authority and discretion of the Governor in Council under recognized prerogative power.
5) One aspect of the issue concerning the application of EARPGO was whether that Order and the statute under which it was adopted, the Department of the Environment Act, could be said to affect the prerogative power of the Governor in Council to adopt the impugned Orders in Council. The purposes and context of both enactments do by their terms implicitly bind the Crown but there is no intent that the Act extend to the power of the Governor in Council to regulate for international relations and for defence policy and national security purposes. There was no affirmative regulatory duty pursuant to an Act of Parliament in this case. No duty to authorize visits by foreign naval vessels existed; the matter was one for decision entirely within the discretion of the Governor in Council. The latter was not bound by EARPGO and there was no condition precedent that the Order be applied before adoption of the Orders in Council.
6) This is not a case where the Governor in Council, purporting to act under the royal prerogative, has in fact done so for some purpose that is improper because it lies outside that prerogative. The applicants’ submissions, that the Governor in Council ignored the advice of senior officers of the Department of the Environment in not applying EARPGO and that his decision was made primarily to avoid a public review, were not supported by any evidence. One could not conclude, on the basis of the applicants’ criticisms of the report of National Defence, that the report was prepared in bad faith and that the decisions of the Governor in Council were tainted by bad faith or made for an improper purpose not within the scope of the prerogative power to deal with international relations and defence and security policy.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Atomic Energy Control Act, R.S.C., 1985, c. A-16, ss. 11, 18.
Canada Shipping Act, R.S.C., 1985, c. S-9.
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44].
Canadian Environmental Assessment Act, S.C. 1992, c. 37.
Canadian Environmental Protection Act, R.S.C., 1985 (4th Supp.), c. 16, s. 4.
Crown Liability and Proceedings Act, R.S.C., 1985, c. C-50, s. 23(1).
Dangerous Goods Shipping Regulations, SOR/81-951.
Department of the Environment Act, R.S.C. 1970 (2nd Supp.), c. 14, s. 6(2) (as am. by S.C. 1978-79, c. 13, s. 14).
Department of the Environment Act, R.S.C., 1985, c. E-10, s. 6.
Environmental Assessment and Review Process Guidelines Order, SOR/84-467, ss. 10, 11, 12, 13, 20.
Federal Court Act, R.S.C., 1985, c. F-7, ss. 18(1) (as am. by S.C. 1990, c. 8, s. 4), 18.1 (as enacted idem, s. 5), 28, 48(1).
Federal Court Rules, C.R.C., c. 663, RR. 332(1), 400, 419, 482 (as am. by SOR/90-846, s. 18), 1604 (as enacted by SOR/92-43, s. 19), 1618 (as enacted idem).
Interpretation Act, R.S.C. 1970, c. I-23, s. 16.
Interpretation Act, R.S.C., 1985, c. I-21, s. 17.
National Harbours Board Act, R.S.C. 1970, c. N-8.
National Transportation Act, R.S.C. 1970, c. N-17, s. 64.
National Transportation Act, 1987, R.S.C., 1985 (3rd Supp.), c. 28, s. 64.
Navigable Waters Protection Act, R.S.C., 1985, c. N-22.
State Immunity Act, R.S.C., 1985, c. S-18.
CASES JUDICIALLY CONSIDERED
FOLLOWED:
Angus v. Canada, [1990] 3 F.C. 410; (1990), 72 D.L.R. (4th) 672; 5 C.E.L.R. (N.S.) 157; 111 N.R. 321 (C.A.); Thorne’s Hardware Ltd. et al. v. The Queen et al., [1983] 1 S.C.R. 106; (1983), 143 D.L.R. (3d) 577; 46 N.R. 91; Operation Dismantle Inc. et al. v. The Queen et al., [1985] 1 S.C.R. 441; (1985), 18 D.L.R. (4th) 481; 12 Admin. L.R. 16; 13 C.R.R. 287; 59 N.R. 1; affg [1983] 1 F.C. 745; (1983), 49 N.R. 363 (C.A.); Éthier v. Canada (RCMP Commissioner), [1993] 2 F.C. 659 (C.A.); revg [1992] 1 F.C. 109; (1991), 45 F.T.R. 310 (T.D.); R. v. Khan, [1990] 2 S.C.R. 531; (1990), 59 C.C.C. (3d) 92; 79 C.R. (3d) 1; 113 N.R. 53; 41 O.A.C. 353; R. v. Smith, [1992] 2 S.C.R. 915; (1992), 94 D.L.R. (4th) 590; 75 C.C.C. (3d) 257; 15 C.R. (4th) 133; 139 N.R. 323; 55 O.A.C. 321.
APPLIED:
Attorney General of Canada v. Inuit Tapirisat of Canada et al., [1980] 2 S.C.R. 735; (1980), 115 D.L.R. (3d) 1; 33 N.R. 304; Laker Airways Ltd. v. Department of Trade, [1977] Q.B. 643 (C.A.); Council of Civil Service Unions v. Minister for the Civil Service, [1984] 3 All E.R. 935 (H.L.); Alberta Government Telephones v. Canada (Canadian Radio-television and Telecommunications Commission), [1989] 2 S.C.R. 225; [1989] 5 W.W.R. 385; (1989), 26 C.P.R. (3d) 289; 98 N.R. 161; Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3; (1992), 88 D.L.R. (4th) 1; [1992] 2 W.W.R. 193; 84 Alta. L.R. (2d) 129; 3 Admin. L.R. (2d) 1; 7 C.E.L.R. (N.S.) 1; 132 N.R. 321.
DISTINGUISHED:
Carrier-Sekani Tribal Council v. Canada (Minister of the Environment), [1992] 3 F.C. 316; (1992), 93 D.L.R. (4th) 198; 5 Admin. L.R. (2d) 38 (C.A.); National Anti-Poverty Organization v. Canada (Attorney General), [1989] 3 F.C. 684; (1989), 60 D.L.R. (4th) 712; 26 C.P.R. (3d) 440; 99 N.R. 181 (C.A.); revg [1989] 1 F.C. 208; (1988), 32 Admin. L.R. 1; 21 C.P.R. (3d) 305; 21 F.T.R. 33 (T.D.).
CONSIDERED:
Centennial Packers Ltd. v. Canada Packers Inc. et al. (1986), 13 C.P.R. (3d) 187; 9 F.T.R. 232 (F.C.T.D.); Wells v. Canada (Minister of Transport), T-2160-92, Jerome A.C.J., order dated 19/4/93, F.C.T.D., not yet reported; Vancouver Island Peace Society v. Canada, [1992] 3 F.C. 42 (T.D.).
REFERRED TO:
Kealey v. Canada (Attorney General), [1992] 1 F.C. 195; (1991), 1 Admin. L.R. (2d) 138; 46 F.T.R. 107 (T.D.).
AUTHORS CITED
Canada. Standing Joint Committee of the Senate and of the House of Commons for the Scrutiny of Regulations. Minutes of Proceedings and Evidence, Issue No. 28 (June 3, 1993).
Sopinka, John et al. The Law of Evidence in Canada. Toronto: Butterworths, 1992.
APPLICATION for judicial review of two decisions of the Governor in Council, made by Orders in Council P.C. 1991-2083 and P.C. 1991-2084, approving visits of nuclear-powered and nuclear-armed naval vessels to Canadian ports. Application dismissed.
COUNSEL:
Robert Moore-Stewart for applicants.
Harry J. Wruck for respondents.
SOLICITORS:
Robert Moore-Stewart, Victoria, for applicants.
Deputy Attorney General of Canada for respondents.
The following are the reasons for order rendered in English by
MacKay J.: This application seeks judicial review and orders in the nature of certiorari, and mandamus against some or all of the respondents named, in relation to decisions made on October 30, 1991 by the Governor in Council on the recommendation of the Secretary of State for External Affairs and the Minister of National Defence. Those decisions, by Orders in Council P.C. 1991-2083 and P.C. 1991-2084, approved, respectively,
a. visits of warships, belonging to the United States of America and to the United Kingdom of Great Britain and Northern Ireland, housing or capable of housing nuclear warheads (“nuclear carrying vessels”) or (“NCVs”), to Canadian ports subject to certain conditions; and
b. visits of nuclear-propelled warships (“NPVs”), belonging to the United States of America and to the United Kingdom of Great Britain and Northern Ireland, to the ports of Halifax, Esquimault and Nanoose subject to certain conditions.
In his reasons for order in an interlocutory proceeding in this matter, my colleague Mr. Justice Strayer aptly described the position of the applicants in the following words (see Vancouver Island Peace Society v. Canada, [1992] 3 F.C. 42 (T.D.), at pages 44-45):
The principal application is directed against two decisions of the Governor in Council, Nos. 2083 and 2084 of 1991 made on October 30, 1991. It is said that these Orders in Council approved, inter alia, visits of nuclear-powered and nuclear-armed naval vessels to Canadian ports. In effect, the applicants say that these Orders in Council were adopted without the respondents having met the requirements of the Environmental Assessment and Review Process Guidelines Order, SOR/84-467 in that there was no initial assessment of potentially adverse environmental effects of the proposed visits as required by subsection 10(1) of the Order, nor was there a reference of the proposal to the Minister of the Environment for public review by a panel pursuant to section 12 of that Order. Nor, it is said, was there any determination by the “initiating department”, the Department of National Defence, pursuant to section 13 of the Order as to whether to refer the proposal to the Minister of the Environment for public review by a panel due to “public concern about the proposal”. The applicants therefore seek mandamus to require the Minister of National Defence or other ministers [i.e., the Secretary of State for External Affairs and/or the Minister of Transport] to conduct the initial assessment to determine if there may be any “potentially adverse environmental effects” as required by section 10, to refer the proposal to the Minister of the Environment for public review by a panel presumably under section 12, and otherwise to comply with the Order. The respondents [i.e. the Vancouver Island Peace Society et al.] invoke sections 12, 13, and 20 of the Order as the basis for compelling the Minister of the Environment to hold the public review. Further, the applicants seek certiorari to quash the decisions of the Governor in Council referred to above.
The originating motion commencing this application was filed on November 22, 1991 and with it were filed the affidavits of Frederick Knelman and Al Rycroft, both of whom are directors of the applicant Society, and the affidavits of the applicants Anne A. Pask and Gregory P. Hartnell. Subsequently some 42 additional affidavits, including two further affidavits of each of Messrs. Knelman and Rycroft, were filed by the applicants. The matter was originally set down for hearing on February 25, 1992 and was later adjourned on consent to be heard in Vancouver over four days commencing June 9, 1992. On April 6, 1992 my colleague Strayer J. heard an application by the respondents that the matter be ordered to proceed by action, an application dismissed by order dated April 10, 1992 for reasons dated April 14 which I have quoted, in part, above.
The issues
The parties raise a number of issues, some of them of a preliminary procedural nature and others of substance concerning the merits of the application.
For the applicants it is argued that the Orders in Council here questioned were made by improper resort to the prerogative power since Parliament has by statute effectively withdrawn from the prerogative the capacity to adopt these orders, in particular by enactment of the Atomic Energy Control Act, R.S.C., 1985, c. A-16, and the Canada Shipping Act, R.S.C., 1985, c. S-9, and authorized regulations made thereunder, especially the Dangerous Goods Shipping Regulations, SOR/81-951. During the hearing, counsel urged also that the prerogative of the Crown was effectively restricted to preclude these Orders in Council by Parliament’s enactment of the Canadian Environmental Protection Act, R.S.C., 1985 (4th Supp.), c. 16 (enacted S.C. 1988, c. 22, now included in loose-leaf edition of R.S.C., 1985, c. C-15.3). Moreover, it is urged that the Orders in Council failed to comply with a “prerequisite”, namely the Guidelines Order [Environmental Assessment and Review Process Guidelines Order, SOR/84-467], and that they were made in bad faith, based upon an inadequate environmental review that does not comply with that Order and without regard to the public interest in a public environmental review.
Those submissions are disputed by the respondents and in addition they raise a number of procedural arguments, including a preliminary application that the originating motion be struck.
A number of the issues raised are interrelated. While it may be unnecessary to deal with all of them, since they were fully argued, conclusions on all issues of significance are here set out. These reasons set out essential background to the application and then deal with preliminary procedural issues before turning to substantive issues raised, under the following general headings:
- a preliminary motion to strike the application,
- the Court’s jurisdiction in relation to the parties respondent, the Orders in Council, and the relief sought,
- the admissibility of the evidence filed by the applicants,
- the Court’s jurisdiction in relation to the Orders in Council as determinations made in exercise of the royal prerogative,
- the application of the Guidelines Order,
- the applicants’ claim of bad faith on the part of the Governor in Council.
A summary of my conclusions is this. The preliminary procedural issues raised by the respondents do not dispose of this application. On the substantive issues raised I conclude that certiorari should not be granted to quash the decisions of the Governor in Council. Those decisions made by the Orders in Council here questioned, were made in exercise of the prerogative powers of the Crown in regard to international relations and national defence, powers that have not been withdrawn or regulated in their exercise by statutes enacted by Parliament. Those powers are discretionary and are not subject, in regard to the decisions made, to the Guidelines Order. It is not here established that the decisions were made in bad faith as the applicants allege. Since the Guidelines Order does not apply there is no duty upon any of the respondents to conduct an environmental screening or initial assessment under the Guidelines Order and no basis upon which mandamus would be ordered to initiate such an assessment. Whether or not the Guidelines Order is applicable to the decisions of the Governor in Council in this instance, there is no duty imposed by law upon any of the respondents to refer the matter of visits authorized by these decisions for a public review of environmental concerns in light of public concern about the visits. Thus there is no ground for any order of mandamus against any of the respondents.
I now turn to describing essential background and then to the issues presented at the hearing of this application.
The background
The Government of Canada first approved in 1967 a policy of allowing visits to Canadian ports by United States and United Kingdom naval NPVs and NCVs. Authority to approve visits by these types of vessels was delegated to the Department of National Defence in 1972. Under the policy an average of sixty visits a year are made to Canadian ports by vessels of both types, with NPVs visiting the ports of Halifax, Esquimault and Nanoose, and NCVs visiting these and other ports on the east and west coasts and on the Great Lakes.
In June 1990 the respondent Minister of the Environment announced in the House of Commons reforms to the federal environmental assessment process. This followed a substantial two-year process of consultation with interested persons and organizations, and the announcement included reference to a then proposed Canadian Environmental Assessment Act, subsequently enacted as S.C. 1992, c. 37 (not yet proclaimed in force), and a commitment by the government to policies to reform the environmental assessment process. That process was established by the Environmental Assessment and Review Process Guidelines Order, (“the Guidelines Order”), SOR/84-467, enacted June 1984 under subsection 6(2) of the Department of the Environment Act [R.S.C. 1970 (2nd Supp.), c. 14], as amended by the Government Organization Act, 1979 [S.C. 1978-79, c. 13, s. 14], (now section 6 of the Department of the Environment Act, R.S.C., 1985, c. E-10). While the Guidelines Order has remained unchanged following the Minister’s announcement, that announcement did specify a government requirement that all proposed policy initiatives undergo an environmental assessment culminating in a public statement on their environmental implications.
Following the initiatives announced in June 1990, the Department of National Defence undertook an environmental assessment of the policy to continue visits to Canadian ports by NPVs and NCVs. A report on the results of that environmental assessment was made public on October 30, 1991. This assessment did not include any consultation with the public, though the report does include the statement that, “[R]ecently several west coast municipalities and interest groups have requested an environmental assessment of these visits”. Reference is also made in the report to the development of a list of issues of concern in part “by interpreting the concerns raised by interest groups and communities”.
The report by National Defence is called “Environmental Assessment of Policy” and it is averred by the respondents’ affiant, A. T. Downs, the Acting Director General Environment of the Department, to have been in support of a request for approval by the Governor in Council of visits of nuclear propelled and nuclear capable vessels to Canadian ports. It includes the following paragraphs:
POLICY RATIONALE AND OPTIONS
6. The decision of the Government of Canada to approve the continuation of visits by NPVs and NCVs is intended to safeguard the policy of permitting such visits. This policy is an essential component of Canada’s security policy. Its objectives are to contribute to the strategic deterrent and demonstrate our clear commitment to, and solidarity with, our NATO allies.
7. A modification of the policy which would risk an interruption of the visits is unacceptable because of the importance to Canada’s national security of the nuclear deterrent and the damage to the deterrent that any interruption would cause. It is also rejected because of its potential effect on relations with Canada’s allies who would rightly perceive such a change as an abrogation of Canada’s Alliance responsibilities. There is, however, flexibility in the following areas:
a. a complete and detailed examination of the environmental implications of NPV/NCV visits is being undertaken in compliance with the Green Plan mechanism which directs that all federal agencies review existing policies for their environmental implications; and
b. If deemed necessary following completion of the above noted detailed study, changes to visit procedures and/or emergency response measures could be introduced to further ensure that the risk of adverse consequences from such visits is as low as is reasonably achievable.
DESCRIPTION OF PROJECT ACTIVITIES RELATED TO THE POLICY OPTIONS
…
10. Diplomatic notes exchanged between Canada, the U.S., and the U.K. contain assurances that any nuclear weapons will be stored in specialized magazines in a safe (disarmed) mode and that they will not be moved or transferred while in Canadian waters. They provide further assurances that all safety measures taken in their home ports will be observed while in Canadian waters. Conventional weapons are also stored in their normal safe mode.
11. Harbour navigation and docking procedures for NCVs are the same as for normal commercial and Canadian naval vessels. NPVs are only permitted to enter or leave the harbour during daylight when specified visibility requirements are met and escorting tugs are in attendance.
…
ENVIRONMENTAL SETTINGS
…
14. The main environmental components which may be affected are as follows:
a. air quality;
b. water quality;
c. aquatic animals (linked to water quality);
d. fishing (linked to water quality and aquatic animals);
e. human health and safety (linked to air quality, water quality, and fishing);
f. local economy (possibly linked to fishing)
g. local tourism (linked to all of the above)
15. Detailed inventories and descriptions of Valued Ecosystem Components (VECs) at each port are not yet available. They will be developed during the harbour and detailed environmental assessments.
ENVIRONMENTAL ASSESSMENT
16. Scoping of issues. A list of issues of concern has been developed by consensus among experts in nuclear safety and environmental impact (including the Department of Fisheries and Oceans and Environment Canada), and by interpreting the concerns raised by interest groups and communities. The issues identified are:
a. the safety risk associated with potential nuclear accidents;
b. the effects on marine animals of exposure to low-level radiation;
c. the long term health effects on humans of direct and indirect exposure to low-level radiation;
d. the economic impact of the local procurement and tourism/recreation activities enjoyed by crews of visiting NPVs/NCVs;
e. the social impact of the presence in the community of potentially large numbers of allied military personnel;
f. water quality and waste disposal issues associated with the routine disposal of ship sewage, grey water, and garbage;
g. the effects of the presence of these vessels on harbour traffic and the provision of berthing services; and
h. the safety of submerged submarine transits through fishing zones.
The report reviews the concerns listed in paragraph 16 then discusses briefly mitigation and monitoring. It includes five annexed documents: A—Description of NCV/NPV Port Visits, B—Nuclear Weapon Safety Systems, C—Description of Naval Nuclear Reactor, D—Results of Canadian Monitoring, and E”U.S. Assurances concerning Transits of Submarines. The full report includes as a separate three-page document, a Summary of Findings—Environmental Assessment of Policy. That Summary includes the following paragraph:
SUMMARY OF IMPACTS
…
13. Though all potential impacts were judged not significant, much of the data provided to support these conclusions comes from our allies and the historical record. It was decided in 1990 to update the assessments for NPV/NCV visits. Further, in compliance with the Green Plan, an environmental review of the current policy of permitting these visits is being carried out in concert with the harbour assessments. Therefore, all the potential impacts discussed herein will be subject to further in-depth study to confirm the analysis and, if necessary, to develop better plans and procedures to ensure that the safest conditions always prevail.
The Departmental report concluded:
27. On the basis of this assessment, it is concluded that there is sufficient confidence in the safety and high potential for insignificant adverse environmental impact associated with the visits of NCVs and NPVs to permit the visits to continue. The importance of the visits to Canadian defence and foreign policy is such that the remaining uncertainties need not be investigated as a precondition to continuing the visits.
28. The Department proposes that the Government grant approval for the continuation of NPV and NCV visits, and that the following measures be implemented:
a. specific environmental and harbour assessments be continued to ensure all possible safety and mitigation measures are identified;
b. Canadian Forces nuclear emergency response plans be reviewed and improved in accordance with the recommendations resulting from the specific environmental and harbour assessments and integrated with those of civilian authorities.
On the same day as that report was made public the Governor in Council, on the recommendation of two of the respondent Ministers, of External Affairs and of National Defence, passed the Orders in Council that are the subject of this application for judicial review. The first, P.C. 1991-2083, approves visits to Canadian ports by warships of the U.S.A. and of the U.K. classed as NCVs, and the second, P.C. 1991-2084, approves visits by naval NPVs of the same countries, but only to the ports of Halifax, Esquimault and Nanoose. In the case of both types of vessels the visits are subject to conditions. Both orders are similar in form and contain the same conditions. The text of P.C. 1991-2083 is as follows:
HIS EXCELLENCY THE GOVERNOR GENERAL IN COUNCIL, on the recommendation of the Secretary of State for External Affairs and the Minister of National Defence, is pleased hereby to approve the visits of warships belonging to the United States of America and the United Kingdom of Great Britain and Northern Ireland, housing or capable of housing nuclear warheads, to Canadian ports, subject to the following conditions:
(a) written certification by the Governments of those countries that all safety precautions and procedures followed in connection with the operation of such warships in home ports will be strictly observed in visits to Canadian ports; and
(b) written assurance by the Governments of those countries that claims, except those covered by the Agreement Between the Parties to the North Atlantic Treaty Regarding the Status of Their Forces, that might arise out of a nuclear accident or incident will be dealt with through diplomatic channels in accordance with customary procedures for the settlement of international claims under generally accepted principles of law and equity.
As earlier noted this application for judicial review was commenced by filing of the originating motion on November 22, 1991. By his affidavit sworn November 21, 1991, Alan Rycroft, a director of the applicant Vancouver Island Peace Society, (“the Society”) describes the Society as incorporated in September 1991 as Society No. S-28048 under the laws of British Columbia, with goals including the education of the greater Victoria area and Vancouver Island citizenry and the Canadian public to the dangers of visits to Canadian ports by nuclear-powered and nuclear-armed vessels, and the launching of actions and activities concerned with ending these visits. Mr. Rycroft avers that the Board of Directors of the Society unanimously agreed that the Society be a “plaintiff”, i.e., an applicant, in this proceeding.
Another director of the applicant Society, Dr. Frederick Knelman, an author, university professor with Ph.D. qualifications in Physics and Engineering, with experience of over 40 years in research and writing in relation to nuclear technology and related matters, also filed an affidavit in support of the originating motion on November 22, 1991, and he subsequently filed two others. He has been the recipient of honours as an environmentalist and for his efforts in service to the cause of peace. By affidavit he sets out his opinions in relation to naval accidents with nuclear propulsion systems and nuclear armaments, the risk of accident arising during the course of visits to Canadian ports by NPVs and NCVs, the lack of appropriate measures to deal with the risks of accident arising from such visits, the dangers and damage that could be expected to arise in the event of an accident, and the need for an open public review by way of an environmental assessment of the policy permitting visits by NPVs and NCVs. The sources for his opinions are writings and documents in the public domain, though as I read his affidavit much of this information base is itself opinion and somewhat speculative because of policies of governments concerned to treat information on NPVs and nuclear weapons as secret, including information in relation to accidents occurring on board NPVs and NCVs.
The other applicants who filed affidavits with the originating motion are individual citizens. The affidavit of Ms. Pask describes her as a peace activist, senior citizen, a member of the Raging Grannies and a longtime resident of the city of Victoria, and it describes her interest, as a former public health nurse, in avoidance of nuclear accidents and in the cause of peace, and her extensive experience in visiting sites of nuclear testing or accidents. She expresses her concern for prevention of a nuclear accident in urban harbours, for such an accident presents an “unthinkable scenario, with consequences for a time span of generations.” By his affidavit, sworn on January 14, 1992, Gregory P. Hartnell, the other individual applicant, describes himself as an artisan and publisher, a long-time resident of Victoria, and a sincerely concerned citizen who stands to be harmed or killed by the general destruction which may result from the Canadian government’s policy of allowing nuclear-armed and nuclear-powered ships to berth in Victoria and Esquimault harbours. He is President of the Greater Victoria Concerned Citizens Association, was a candidate in 1990 mayoralty elections in Victoria, is personally concerned with environmental issues, and avers widespread public support and his own, for the need for a “public environmental review” of the policy of permitting visits of NPVs and NCVs to Canadian ports, and, I infer, particularly to Esquimault and Victoria.
One other matter of significance in this proceeding concerns the source of authority for the Orders in Council here questioned. For the respondents it is explicitly stated that the orders are based on the Crown’s prerogative powers in relation to foreign affairs and national defence. Although visits by these vessels to Canadian ports have been occurring for more than two decades, the study of the environmental effects of these visits was completed by the Department of National Defence, in keeping with the policy objectives announced by the Minister of the Environment in June 1990, but that study is expressly said not to have been undertaken pursuant to the Guidelines Order. It is urged that Order is not applicable to decisions of the Governor in Council, in particular where those decisions are made in exercise of the Crown’s prerogative power.
A preliminary motion to strike the application
When the matter came on for hearing on June 9, I first dealt with an application on behalf of the respondents, dated June 4, 1992, that the originating motion be struck out, pursuant to Rule 419 [Federal Court Rules, C.R.C., c. 663] and the inherent jurisdiction of the Court to control its own process. That application was based on submissions that the Court lacked jurisdiction to grant the relief sought since the relief is sought against the wrong party, the originating motion discloses no cause of action or is an abuse of the process of the Court for certiorari is not available to challenge the validity of the two impugned Orders in Council. Further, it was urged that it would be inappropriate for this Court to grant the relief sought by mandamus since that relief is not within the Court’s jurisdiction or it would constitute the exercise of an appellate function or usurping of discretionary jurisdiction vested in certain of the respondents. Finally, it was said that the issues raised by the applicants are not justiciable and the application constitutes an abuse of the process of the Court. At the hearing counsel for the respondents in support of the motion to strike also urged that materials filed by the applicants, the numerous affidavits filed, are so seriously flawed and defective that there is no case to be met by the respondents.
Of course, this proceeding is not an action to which Rule 419 refers in providing for applications to strike pleadings. Yet it was urged on behalf of the respondents that the discretion to strike, provided by that Rule in relation to actions, is inherent in the Court’s jurisdiction in relation to motions. Reliance is placed on the decision of the Court of Appeal in Carrier-Sekani Tribal Council v. Canada (Minister of the Environment), [1992] 3 F.C. 316 (C.A.) [hereinafter referred to as Alcan] as implicitly supporting jurisdiction of this Court to consider a preliminary motion to strike an originating motion seeking judicial review. At the very least that decision does stand for the principle that where there is a preliminary motion to strike an originating motion the Court must dispose of the preliminary motion before dealing with the merits of the originating motion, at least in circumstances where the preliminary motion has been fully argued and the originating motion has not been.
I have no doubt that within the inherent jurisdiction of the Court, in controlling its own process, there is discretion to strike an originating motion seeking judicial review, but that discretion would be exercised only where it is clear there is no basis for proceeding by originating motion. In the normal course in considering motions the applicant seeking judicial review, or any other relief available by motion, is heard, and the respondent opposing the relief sought responds with all of the arguments supporting dismissal of the motion. It may well be that jurisdictional issues or issues relating to the manner in which the motion and supporting materials are framed will lead the Court to exercise its discretion to strike a motion without argument on its merits. In Centennial Packers Ltd. v. Canada Packers Inc. et al. (1986), 13 C.P.R. (3d) 187 (F.C.T.D.) my colleague Mr. Justice Cullen ordered that an originating motion be struck because it was procedurally irregular and, in the circumstances of that case, could not be corrected. In Wells v. Canada (Minister of Transport), T-2160-92, order dated 19/4/93, F.C.T.D., not yet reported, Associate Chief Justice Jerome quashed an originating motion for review of a decision of the Information Commissioner on the ground that the issue it raised was res judicata. Often the considerations affecting the exercise of discretion will require an appreciation of the circumstances in which the motion arises and of the relief sought. Frequently that appreciation is only fully provided by presentation of the applicant’s case based on the originating motion and supporting affidavits. Particularly where the preliminary motion to strike is filed, but not yet heard, just before the commencement of a special hearing scheduled to consider the originating motion, it may be more expeditious, and of assistance to the Court’s appreciation of the case for judicial review, to have the applicant’s case fully presented. Here the respondents urge that it would be more expeditious if the preliminary motion to strike be granted, for the Court could then avoid argument on the merits of the application for judicial review. For the applicants, however, it is urged that response to the matters raised in the preliminary motion to strike requires dealing with many of the matters that would otherwise be presented in relation to the merits of the originating motion.
In the circumstances of this application, and in light of the timing of the respondents’ preliminary motion, I was not persuaded that the Court should exercise discretion to strike the originating motion. The respondents’ motion to strike was dismissed, without prejudice to their raising, in response to the originating motion, any and all of the arguments raised in support of the motion to strike as grounds upon which the relief sought by the applicants should be denied and the originating motion should be dismissed.
The Court’s jurisdiction in relation to the parties respondent, the Orders in Council, and the relief sought
The respondents raise objections to the originating motion and the manner in which it is framed, objections which it is said concern the Court’s jurisdiction in this application. First, it is urged that the parties named as respondents are not the proper party where the decisions sought to be reviewed are those of the Governor in Council. Second, it is submitted that certiorari does not lie here for the decisions sought to be questioned are legislative in nature, not administrative or judicial, the issues raised by the applicants are said not to be justiciable, and the decisions were made within the valid exercise of prerogative power. Thirdly, it is urged that mandamus does not lie in the circumstances of this case to compel Ministers to direct a public environmental review.
I turn to the first of the procedural issues raised, concerning appropriate parties. The applicants’ originating notice of motion is directed to Her Majesty the Queen in right of Canada, and to the Prime Minister and the Ministers of National Defence, External Affairs, Transport, and Environment. The relief sought includes certiorari to quash the Orders in Council in question as decisions made by the Governor General in Council, and mandamus or relief in the nature thereof
1. to compel the Minister of National Defence, the Secretary of State for External Affairs, and/or the Minister of Transport to
(a) conduct an environmental screening or initial assessment to determine whether, and the extent to which, there may be any potentially adverse environmental effects from the aforementioned visits of nuclear powered and nuclear armed warships to Canadian ports, and specifically, to Esquimault and Victoria harbours,
(b) to refer the proposal to conduct the aforesaid nuclear ship visits to the Minister of the Environment for public review by a Panel, and
(c) to otherwise comply with the Environmental Assessment and Review Process Guidelines Order, SOR/84-467 in respect of the aforesaid nuclear ships visits.
2. to compel the Minister of the Environment to hold a public review pursuant to sections 12, 13 and 20 of the Environmental Assessment and Review Process Guidelines Order.
I note that no claim is made for relief directed to the Prime Minister of Canada, though the Prime Minister is named as a respondent. In argument for the applicants it is said that the Prime Minister is joined because he has ultimate responsibility for the executive branch of government. Nevertheless, he is not the legal representative of the Governor in Council and if he were joined for that purpose it would not be effective or proper. Here it is argued that in essence, the Prime Minister was involved in decisions with his Ministers in failing to provide a lawfully mandated public environmental review. That portrayal is based upon the argument that the Guidelines Order is applicable to decisions here made by Orders in Council, and further that the Guidelines Order requires a public review, but even if that were correct, inclusion of the Prime Minister as a respondent, where no relief is sought in relation to decisions made in law by his office, is clearly not appropriate.
The other Ministers joined as respondents are proper parties where the applicants seek an order directed against each to require compliance, by mandamus, with the Guidelines Order.
The respondents submit that the decisions here questioned, the Orders in Council, can only be questioned before the Court by joining the Attorney General of Canada and that failure to do so results in joining the wrong party. It is normal practice to join the Attorney General of Canada as a respondent, representing Her Majesty, when a decision of the Governor General in Council is questioned, a practice not followed in this case.
Counsel relies upon the words of Mr. Justice Marceau for the Court of Appeal in Alcan, supra, at page 331, and if only Ministers of the Crown were named as respondents here, as was the case in the originating motion in Alcan, that would resolve the matter. As indicated by Marceau J., Ministers of the Crown are not the legal representatives of the Governor in Council, and in that case the Deputy Attorney General, representing the named respondent Ministers of Environment and Transport in that case, could not be deemed to represent the Attorney General of Canada as representative of the Governor in Council.
Unlike the situation in Alcan, the applicants here have addressed their originating motion to Her Majesty the Queen in right of Canada, in addition to named Ministers, each as a respondent. That would appear to be the procedure followed in the originating motion for certiorari to quash decisions of the Governor General in Council in question in Angus v. Canada, [1990] 3 F.C. 410 (C.A.) where the respondents named were Her Majesty the Queen and the Minister of Transport, though counsel for the respondents here suggests that the issue of the proper party respondent was not raised in that case, as it was subsequently in Alcan. Reference is also made, as indicative of the normal practice, to National Anti-Poverty Organization v. Canada (Attorney General), [1989] 1 F.C. 208 (T.D.), reversed on other grounds without comment on this point, [1989] 3 F.C. 684 (C.A.), but there an originating motion directed against the Governor in Council for certiorari to quash an Order in Council was converted by amendment, upon consent, to an action against the Attorney General for a declaration.
In my view, the decisions in Alcan and National Anti-Poverty are not determinative of the issue here raised. The applicants have here joined Her Majesty the Queen as a party respondent. Since the Deputy Attorney General had notice of that in the originating motion, the Attorney General may be deemed to have notice of the applicants’ claims for relief against Her Majesty the Queen, and counsel for the Department of Justice may be taken as representing all of the respondents including Her Majesty, whose agency the Governor General in Council is when it acts as it here did to adopt Orders in Council. I note that counsel for the respondents did not disavow any responsibility here to represent Her Majesty the Queen, rather he was at pains to make clear merely that the Attorney General of Canada was not joined as a respondent as, it was submitted, is the appropriate practice.
There is no statute or rule which requires that the Attorney General of Canada be joined as respondent in an originating motion, rather than Her Majesty the Queen, if a decision of the Crown by the Governor General in Council is to be questioned. The traditional procedure to join the Attorney General as a party representing the Governor in Council is referred to by Estey J. speaking for the Supreme Court in Attorney General of Canada v. Inuit Tapirisat of Canada et al., [1980] 2 S.C.R. 735, but the learned Justice made no determination whether that procedure is essential.
The authorized practice in relation to suit against the Crown appears to depend upon the court where action is commenced. Subsection 23(1) of the Crown Liability and Proceedings Act, R.S.C., 1985, c. C-50 as amended by S.C. 1990, c. 8, ss. 21, 29 provides, in part:
23. (1) Proceedings against the Crown may be taken in the name of the Attorney General of Canada….
On the other hand, subsection 48(1) of the Federal Court Act [R.S.C., 1985, c. F-7] provides in part:
48. (1) A proceeding against the Crown shall be instituted by filing in the Registry of the Court the original and two copies of a document that may be in the form set out in the schedule….
and the schedule to the Act, reflecting an action rather than a motion, provides a style of cause in which Her Majesty the Queen is identified as “Defendant”. Similarly Rule 400 of the Federal Court Rules, which deals with actions against the Crown, refers to “a statement of claim or declaration (Form 11)”, which form in turn refers to Form 2 where the “Title of Action or Proceeding” in a statement of claim against her Majesty provides that “Her Majesty the Queen” be the defendant. Thus, in this Court, a proceeding against the Crown in the form of an action is taken against Her Majesty the Queen, not against the Attorney General as is the case in other courts under the Crown Liability and Proceedings Act.
In the case of proceedings against federal agencies subsection 18(1) of the Federal Court Act, R.S.C., 1985, c. F-7 as amended by S.C. 1990, c. 8, s. 4 vests exclusive jurisdiction in the Trial Division except for matters assigned to the Court of Appeal under section 28, “to hear and determine any application or proceeding … including any proceeding brought against the Attorney General of Canada, to obtain relief against a federal board, commission or other tribunal.”
The term “a proceeding against the Crown” is not defined in the Federal Court Act, or for that matter in the Crown Liability and Proceedings Act, but in my view, there is no reason why that term as used in the former Act should exclude originating motions now that amendments to the Federal Court Act by S.C. 1990, c. 8, would no longer seem to require that any form of relief sought against the Attorney General be pursued by an action, as was the case prior to the amending statute and pursuant to then Rule 603 of the Federal Court Rules, now repealed [SOR/92-43, s. 5]. The amending Act provided the remedy by way of judicial review under section 18.1 [as enacted by S.C. 1990, c. 8, s. 5], and the Federal Court Rules were amended by adding Part V.1 [RR. 1600-1619, as enacted by SOR/92-43, s. 19], dealing with applications for judicial review. Those changes, effective February 1, 1992, after the motion here was filed, include Rule 1604 which now provides for service of documents upon the Attorney General of Canada in all cases of proceedings by originating motion for judicial review. Service upon the Attorney General is ordinarily effected by service upon the Deputy Attorney General.
I am not prepared to dismiss the applicants’ motion in relation to certiorari on the ground that relief is sought against the wrong party, as the respondents urge. Although the Attorney General is not joined as the legal representative of the Governor General in Council, the applicants have named Her Majesty the Queen as respondent. If this were an action, that form would be appropriate. In such a case, an action, Mr. Justice Teitelbaum has held that it is sufficient to name Her Majesty the Queen as defendant and if it is not the intention to sue the Attorney General personally, it is redundant to include the Attorney General as a party. (Kealey v. Canada (Attorney General), [1992] 1 F.C. 195 (T.D.)). In my view, where the respondents named in an originating motion include Her Majesty the Queen, failure to name the Attorney General in lieu of Her Majesty should not be a bar to considering the application which relates to Orders in Council.
The respondents’ second general argument of a preliminary sort concerns the jurisdiction of the Court to review or quash by certiorari the Orders in Council in question. It is said they are decisions which are legislative in nature, not administrative or judicial, that issues raised by the applicants are not justiciable, and that the decisions were made in the proper exercise of prerogative power. For each of these reasons the Court is said to be without jurisdiction to set aside the Orders in Council, or if it had been sought, to make a declaration to the same effect. The submissions of the respondents are somewhat interrelated. The argument concerning the prerogative power I postpone to deal with later in these reasons but the other arguments are here dealt with as other preliminary issues.
It is an oft-stated principle that certiorari, or other relief available by judicial review, does not lie where the decision questioned is legislative in nature, rather than administrative or judicial. In the words of Mr. Justice Marceau, speaking for the Court of Appeal in Alcan, supra, at page 331:
It is clear to me also that, however broad its scope may have become, certiorari is a common law remedy which was developed and still exists to review administrative determinations or decisions, not legislative prescriptions.
In that case the Guidelines Order was found not to be applicable to decisions of the Ministers concerned. Then Marceau J. continued and discussed an Order in Council passed on the recommendation of the Minister of the Environment pursuant to section 6 of the Department of the Environment Act which provided that the Guidelines Order did not apply to the Kemano Completion Project. That exemption order, as it was described, was found by Marceau J.A. to be within power delegated by Parliament under the Act to make orders to establish guidelines relating to environmental matters, and he commented about the Order in Council in these terms at page 345:
Whether the order in council is characterized as an amendment to the EARP Guidelines enacted for the purpose of specifically exempting the Project from their application, or as a mere confirmation that the scope of the Guidelines did not extend to it, made with a view to clarifying the situation, it seems to me that, passed, as it was, pursuant to section 6 of the Department of the Environment Act it was clearly authorized by Parliament. The power to adopt regulations or other legislative enactments necessarily includes the power to clarify, amend or vary those regulations or enactments subsequently, provided, of course, that the power is not exercised in a manner which would contravene the intentions of the legislature.
Alcan was of course concerned with the exercise of power delegated by Parliament to make regulations, which the Court of Appeal considered in that case to be a power to make decisions legislative in nature. This portion of the decision has been criticized recently in the Ninth Report of the Standing Joint Committee for the Scrutiny of Regulations, June 3, 1993, the Senate and the House of Commons, Ottawa. The report bases its criticism on the principle that a delegation of general legislative power by Parliament ought not to be interpreted, unless it expressly so provides, as including authority to exempt individual cases from general regulations. Such a principle does not appear to be judicially recognized as yet in Canada in relation to regulating authority. The criticism has no significance for the case at bar for the Orders in Council here are general in their application and are not readily described as exemption orders.
An earlier example of the limits of judicial review in relation to decisions of the Governor in Council, made within the authority delegated by Parliament through legislation, is the decision of the Supreme Court of Canada in Thorne’s Hardware Ltd. et al. v. The Queen et al., [1983] 1 S.C.R. 106. In upholding the validity and applicability of an Order in Council made under the National Harbours Board Act, R.S.C. 1970, c. N-8, Mr. Justice Dickson (as he then was) said, at page 581,
Decisions made by the Governor in Council in matters of public convenience and general policy are final and not reviewable in legal proceedings. Although, as I have indicated, the possibility of striking down an order in council on jurisdictional or other compelling grounds remains open, it would take an egregious case to warrant such action. This is not such a case.
After discussing various factors that might have motivated the government of the day to pass the Order in Council, Dickson J. continued at page 115:
I have referred to these several pieces of evidence, not for the purpose of canvassing the considerations which may have motivated the Governor in Council in passing the Order in Council but to show that the issue of harbour extension was one of economic policy and politics; and not one of jurisdiction or jurisprudence. The Governor in Council quite obviously believed that he had reasonable grounds for passing [the] Order in Council … extending the boundaries of Saint John harbour and we cannot inquire into the validity of those beliefs in order to determine the validity of the Order in Council.
In Attorney General of Canada v. Inuit Tapirisat of Canada et al., supra, the Supreme Court of Canada held there was no basis for intervention of the courts in another instance of action by Order in Council, under section 64 of the National Transportation Act, R.S.C. 1970, c. N-17 as amended, under which the Governor in Council was authorized to consider and determine appeals from rulings of the CRTC. Estey J. for the Court, found that the authority delegated was to determine appeals in light of political, economic and social concerns of the moment and the Governor in Council was not bound to observe principles of procedural fairness. Its decisions within the scope of the enabling legislation were not within the jurisdiction of the courts to review. Thus, it seems that even where the Governor in Council is vested with authority to settle competing interests, upon appeal from some administrative agencies, decisions rendered by Order in Council may not be reviewed where the power exercised is judged by the Court to be beyond its capacity to review in light of the factors to be considered by the Governor in Council.
A variety of other cases were cited by counsel for the respondents, but I refer only to one other which, though it concerned another issue, dealt with circumstances, not unlike those in this case, where the decision of the Governor in Council in question was based on the exercise of prerogative powers in relation to treaties and national defence. In Operation Dismantle Inc. et al. v. The Queen et al., [1985] 1 S.C.R. 441, the Supreme Court of Canada dismissed an appeal where the Court of Appeal [[1993] 1 F.C. 745] had struck out a statement of claim in an action questioning the decision of government to permit testing of cruise missiles over Canadian territory by the United States. That decision was said to infringe rights secured under the Charter [Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] and the action sought a declaration to that effect, an injunction against overflights of cruise missiles and damages. There was no debate about the source of authority for government action; it was accepted as a decision made in exercise of the prerogative power in relation to international relations, treaties and national defence.
While the Supreme Court clearly recognized that decisions of the Governor in Council based on the prerogative power are subject to judicial review in regard to issues raised in contravention of the Canadian Charter of Rights and Freedoms, the circumstances in that case did not give rise to a Charter issue. Speaking for the majority of the Court, Chief Justice Dickson found no basis established for the Court to intervene in relation to the Order in Council, for, in his view, there was no connection between that decision, to permit testing of cruise missiles, and the injury complained of, an increase in the probability of nuclear war. In a concurring opinion Madam Justice Wilson found that the issues raised in the statement of claim in essence sought to question the appropriateness, the merits, of the decision, a discretionary decision vested under the Constitution in the Crown by prerogative powers, and this was not an issue for the courts. In that sense the issue raised was non-justiciable.
What constitutes a legislative decision that is beyond consideration by the Court, except in relation to issues of jurisdiction of the decision-maker, here the Governor in Council? At the very least it seems to me the decision must be discretionary, usually, but not always, general in its application, based on the exercise of judgment after assessing factors of general policy, of public interest and public convenience, morality, politics, economics, international obligations, national defence and security, or social, scientific or technical concerns, that is, issues of policy which lie outside the ambit of typical concerns or methods of the courts. The classification of a power as “legislative” is not always easily done, or easily justified. In my view, the better approach in considering powers delegated by legislation is to consider whether the power in question is within the authority delegated in light of the factors to be assessed by the delegate within the intent of Parliament. In the case of claimed prerogative powers the question will be whether the power exercised is within prerogative powers.
Here, policy concerns, in light of Canada’s international relations, national security and defence interests are the prime factors upon which the Orders in Council were based. On examination, their text makes no reference to statutory authority. Their essence, one might say their “pith and substance”, authorizing visits of certain types of naval vessels operated by friendly countries on conditions assured by their governments, is clearly a matter concerned with international relations and national defence policy. I note, for subsequent reference in these reasons, that in my view the orders do not relate, in their essence, to the regulation of atomic energy, to the shipment of dangerous goods or to the regulation of the environment, though I acknowledge that visits by vessels authorized by these orders may incidentally affect such matters.
Clearly the Orders in Council here questioned are decisions legislative in nature, made in the exercise of discretion and beyond the scope of judicial review so far as they lie within the jurisdiction of the Governor in Council under the prerogative power. Whether they do so lie is an issue dealt with after considering other preliminary issues raised.
In so far as the respondents urge that the issues raised by the applicants are non-justiciable, based on the opinion of Madam Justice Wilson in Operation Dismantle, supra, the argument is based on concluding that the essence of the applicants’ motion is to “second guess”, to question the appropriateness of the decisions made by Order in Council, i.e., the merits of the decisions, to permit visits by NPVs and NCVs, or to permit them without first undertaking a public environmental assessment review process. Those may be the ultimate goals of the applicants, but those goals do not raise issues for this Court. That has already been stressed by my colleague Strayer J. in dealing with a preliminary motion in this matter (Vancouver Island Peace Society v. Canada, supra, at page 49). For the applicants it is urged that the originating motion does not invite the Court to assess the merits of the decisions, rather, what is here sought is recognition that the decisions were made in a manner that is inconsistent with the lawful authority of the Governor in Council. The evidence offered by affidavits, in particular the evidence of risk arising from visits of NPVs and NCVs and the evidence of widespread support for a public environmental assessment is submitted, not to persuade the Court that the Governor in Council was wrong, but rather that relevant evidence available to the Crown was ignored, it is alleged in bad faith, and thus the decisions made were beyond the jurisdiction of the Governor in Council.
The applicants’ submissions, in my view, warrant consideration on the basis on which they were advanced, that is in relation to arguments that the Guidelines Order is here applicable in relation to the decisions questioned but was here ignored, and that evidence available to the Crown was ignored. Thus I decline to construe the applicants’ motion as in essence one that simply questions the merits of the decisions made. For the purposes of the applicants’ submissions the issues they raise, in my view, warrant consideration on their merits and are not properly classed as non-justiciable.
There is a final preliminary argument concerning jurisdiction of the Court in relation to the relief sought by mandamus against named Ministers to compel them to take account of the widespread public interest in the visits of NPVs and NCVs and to order an environmental screening or initial assessment, and to refer the matter for public review by a Panel, in accord with the provisions of the Guidelines Order. The respondents contend that Order has no application to these decisions, and moreover even if the Order were to apply it is clear from the Order itself that the necessity for a public review is a matter for the “initiating department” to determine.
Sections 10, 11, 12, 13 and 20 of the Guidelines Order, upon which the applicants rely, are as follows:
10. (1) Every initiating department shall ensure that each proposal for which it is the decision making authority shall be subject to an environmental screening or initial assessment to determine whether, and the extent to which, there may be any potentially adverse environmental effects from the proposal.
(2) Any decisions to be made as a result of the environmental screening or initial assessment referred to in subsection (1) shall be made by the initiating department and not delegated to any other body.
11. For the purposes of the environmental screening and initial assessment referred to in subsection 10(1), the initiating department shall develop, in cooperation with the Office,
(a) a list identifying the types of proposals that would not produce any adverse environmental effects and that would, as a result, be automatically excluded from the Process; and
(b) a list identifying the types of proposals that would produce significant adverse environmental effects and that would be automatically referred to the Minister for public review by a Panel.
12. Every initiating department shall screen or assess each proposal for which it is the decision making authority to determine if
(a) the proposal is of a type identified by the list described under paragraph 11(a), in which case the proposal may automatically proceed;
(b) the proposal is of a type identified by the list described under paragraph 11(b), in which case the proposal shall be referred to the Minister for public review by a Panel;
(c) the potentially adverse environmental effects that may be caused by the proposal are insignificant or mitigable with known technology, in which case the proposal may proceed or proceed with the mitigation, as the case may be;
(d) the potentially adverse environmental effects that may be caused by the proposal are unknown, in which case the proposal shall either require further study and subsequent rescreening or reassessment or be referred to the Minister for public review by a Panel;
(e) the potentially adverse environmental effects that may be caused by the proposal are significant, as determined in accordance with criteria developed by the Office in cooperation with the initiating department, in which case the proposal shall be referred to the Minister for public review by a Panel; or
(f) the potentially adverse environmental effects that may be caused by the proposal are unacceptable, in which case the proposal shall either be modified and subsequently rescreened or reassessed or be abandoned.
13. Notwithstanding the determination concerning a proposal made pursuant to section 12, if public concern about the proposal is such that a public review is desirable, the initiating department shall refer the proposal to the Minister for public review by a Panel.
…
20. Where a determination concerning a proposal is made pursuant to paragraph 12(b), (d) or (e) or section 13, the initiating department shall refer the proposal to the Minister for public review.
Whether the Guidelines Order is applicable in the case of these decisions, so that an initial assessment in accord with section 10 is required, is a matter dealt with under a later heading in these reasons. However, in my view, the assessment of the environmental effects of any proposal is a matter entirely within the authority of the “initiating department”, as is the determination of whether public concern about a proposal is such that a public review is desirable. No duty to refer a proposal for a public review by a Panel arises under the Guidelines Order until an “initiating department” determines that a proposal would produce potentially adverse environmental effects that are unknown and, presumably before proceeding, the proposal is not to be subject to further study and reassessment (paragraph 12(d)), or that potentially adverse environmental effects that would or may be produced are significant (paragraphs 12(b) and (e)), or that however the environmental effects may be assessed under section 12, public concern about the proposal is such that a public review is desirable (section 13).
It is said the environmental assessment carried out by National Defence was not undertaken under the Guidelines Order. It is clear that no determination of the potentially adverse environmental effects in terms set out in section 12 has here been made. Moreover, while awareness of public concern about the visits and implicitly about the desirability of a public review is acknowledged, no determination has been made by the Department of National Defence that such a review is desirable. I infer the determination was here made by National Defence that a public review was not desirable since none was recommended or initiated. Even if the Guidelines Order is here applicable and if National Defence is an initiating department, it would be under no duty to refer the matter for public review until it reached a conclusion on an initial assessment that potentially adverse environmental effects are unknown yet the proposal should proceed, or that those effects are significant as described in paragraphs 12(b), (d) or (e).
No legal duty exists, under the Guidelines Order or otherwise, at this stage, to conduct a public review. In the absence of a public duty imposed by law, which the party upon whom responsibility rests has refused to perform, there is no basis for exercise of the Court’s discretion to intervene by an order in the nature of mandamus. I conclude, as here urged on behalf of the Ministers, that the claim for such an order directed to them must be dismissed since at this stage there is no duty upon any of them to refer the matter, or to initiate consideration of it, for public review by a Panel.
Admissibility of the evidence filed by the applicants
A further major preliminary issue raised by the respondents concerns the admissibility of the evidence filed in affidavits of the applicants. Counsel for the respondents made thorough and detailed submissions about virtually each one of the 46 affidavits, and their exhibits, filed by the applicants. Many portions of those are characterized as related to issues that are non-justiciable and other portions as expressions of opinion or recounting of hearsay evidence. All those portions, it is urged, are inadmissible as evidence in support of the applicants’ motion.
Since, as I have already indicated, I am prepared to treat the applicants’ motion as one that questions the jurisdictional and procedural bases for making the decisions here questioned, and not in essence as inviting the Court to assess the merits of those decisions, I am not prepared to rule out portions of affidavits described by the respondents as raising non-justiciable issues. Rather, in so far as the portions so classified by respondents are otherwise admissible, I consider them relevant but only to the issue of bad faith of the Governor in Council, here raised by the applicants. In particular those portions concern the assessment of risk, and possible adverse consequences, of visits to Canadian ports by NPVs and NCVs, alleged inadequate planning for a possible accident and inadequate monitoring of environmental effects from authorized visits even where there are no accidents, and the widespread concern among individuals, private organizations and public bodies in British Columbia particularly for a public review of potentially adverse environmental effects.
The second ground for urging that very substantial portions of most of the affidavit material is inadmissible is that those portions recount opinions and hearsay, the latter constituted by correspondence, newspaper articles and other published material as sources of information. That evidence is said to be inadmissible in light of Rule 332 of the Federal Court Rules, which provides, in part
Rule 332. (1) Affidavits shall be confined to such facts as the witness is able of his own knowledge to prove, except on interlocutory motions on which statements as to his belief with the grounds thereof may be admitted.
An originating motion for judicial review, as in this case, is not an interlocutory motion and affidavits submitted in support of such a motion must comply with Rule 332(1), except in very limited circumstances.
One of those circumstances is where the affidavit is that of an expert adduced at trial, pursuant to Rule 482 [as am. by SOR/90-846, s. 18]. Here counsel for the applicants urges that many of the affiants are experts by reason of their training and experience, or lay experts who are knowledgeable because of long and committed study of matters germane to the possible environmental effects of visits by NPVs and NCVs to Canadian ports. While I accept counsel’s description of their expertise, none of them here qualifies as an expert witness for purposes of this application and the Court is not bound to give weight to their opinions as it would to opinions of experts qualified under Rule 482, which provides in part:
Rule 482. (1) No evidence in chief of an expert witness shall be received at the trial (unless the Court otherwise orders in a particular case) in respect of any issue unless
(a) that issue has been defined by the pleadings or by agreement of the parties filed under Rule 485;
(b) an affidavit setting out the proposed evidence has been filed and a copy of it served on all other parties at least 30 days before the commencement of the trial; and
(c) the expert witness is available at the trial for cross-examination.
Key qualifications set out in that Rule for receiving the evidence of experts at a trial have not been met. This is not a trial where viva voce evidence is proffered and cross-examination is possible, and issues requiring expert evidence have not been defined or agreed to by the parties. Moreover, expert evidence is irrelevant to the primary issues before the Court for those are legal issues concerning the authority of the Governor in Council and the process followed in reaching the decisions here questioned. These issues are not of the sort on which the evidence of experts is admissible to assist the Court, they are not issues of a scientific or technical nature (see Sopinka, Lederman and Bryant, The Law of Evidence in Canada (Toronto: Butterworths, 1992), at pages 536-537). In so far as the affidavits filed record opinions of the many affiants, they do not comply with Rule 332(1) and are therefore inadmissible. What constitutes opinion may give rise to questions but here the only line I would draw is that an affiant expressing his own “opinion” about the desirability of a public environmental review may be taken as attesting to the fact that he holds such an opinion, and that fact is admissible, if relevant, to the issues before the Court.
As for hearsay evidence, Rule 332(1) seems no longer entirely consistent with the law. In Éthier v. Canada (RCMP Commissioner), [1993] 2 F.C. 659 (C.A.), a decision rendered after argument in the case at bar, the Court of Appeal reversed the decision of my colleague Mr. Justice Cullen (Éthier v. Canada (RCMP Commissioner), [1992] 1 F.C. 109 (T.D.)) who, in reliance upon Rule 332(1), had struck an affidavit and exhibits containing hearsay evidence in an application for certiorari. On the basis of R. v. Khan, [1990] 2 S.C.R. 531 and R. v. Smith, [1992] 2 S.C.R. 915, Mr. Justice Hugessen, for the Court of Appeal, said [at page 660] that those “two decisions dramatically clarified and simplified the law of hearsay in this country”. As Chief Justice Lamer said in Smith [at page 933] they “signalled an end to the old categorical approach to the admission of hearsay evidence. Hearsay evidence is now admissible on a principled basis, the governing principles being the reliability of the evidence, and its necessity.”
Thus I do not strike those portions of the affidavits and exhibits characterized as hearsay by the respondents. Such evidence is admissible on the principles identified, if it is relevant to the issues before the Court, for example, in the applicants’ argument of bad faith on the part of the Governor in Council. I do not propose to review that evidence in any detail and assess its admissibility in light of the principles identified for, in the circumstances of this application as I set them out below in dealing with that issue, this seems unnecessary to the conclusion I have reached.
Before leaving this consideration of the affidavits here presented for the applicants, I would echo comments of my colleague Mr. Justice Strayer in his reasons dismissing the preliminary application of the respondents to convert these proceedings to an action (see Vancouver Island Peace Society v. Canada, supra, at pages 49-50). Like him, I have no doubt of the sincerity, and public spiritedness of the affiants. They are public office holders, professional people, and private citizens, some with distinguished service to Canada in the armed forces and a variety of other services and occupations. They represent many organizations vitally concerned with environmental and peace interests, as well as representing themselves. They present a varied and interesting coalition of interests, all concerned with the environmental risks they perceive arising from visits to Canadian ports of NPVs and NCVs and with the necessity, as they see it, of a public review of environmental risks they perceive. I do not doubt the sincerity of their concerns. Nevertheless, much of the content of their affidavits is of little probative value for the issues before the Court. Some of it is irrelevant, for example, concern about an Order in Council, not before the Court though it was adopted the same day as those that are here questioned, which authorizes submarines of the U.S. Navy to transit Dixon Entrance. Another example is the support for a public review of environmental concerns about the visits authorized, by the Legislature of British Columbia or by others in decisions taken after the Orders in Council were adopted. So far as there is relevant evidence before the Court it is my view that could have been provided by only a few of the affidavits filed. While this Court does not advise applicants how their case is best made, the judicial process is not swayed by numbers of affidavits in support of a cause and the process is limited by law and practice to deal with discrete legal issues, or issues of fact to which the law is applied. It cannot resolve all issues of concern to citizens, however sincere and widespread that concern may be.
The Court’s jurisdiction in relation to the Orders in Council as determinations made in exercise of the Royal prerogative.
The applicants submit that the adoption of the Orders in Council as determinations under the prerogative power is improper since Parliament, by its adoption of legislation, has effectively withdrawn the power here purported to be exercised.
The royal prerogative is comprised of the residue of miscellaneous powers, rights, privileges, immunities and duties accepted under our law as vested in Her Majesty and under our Constitution exercised by the Governor in Council acting on advice of Ministers. Orders in Council may express the decisions of the Governor in Council in relation to matters within the discretionary authority of prerogative powers. Traditionally the courts have recognized that within the ambit of these powers the Governor in Council may act in relation to matters concerning the conduct of international affairs including the making of treaties, and the conduct of measures concerning national defence and security. The prerogative power is, of course, subject to the doctrine of parliamentary supremacy and Parliament, by statute, may withdraw or regulate the exercise of the prerogative power. The authority of the Governor in Council in exercise of the prerogative is also bound by the Canadian Charter of Rights and Freedoms (Operation Dismantle, supra).
The applicants urge that by enactment of the statutes referred to earlier in setting out the issues raised in this application, Parliament has effectively withdrawn from the Governor in Council the authority to enact the Orders in Council here in question. The statutes referred to are the Atomic Energy Control Act and regulations, the Canada Shipping Act and particularly the Dangerous Goods Shipping Regulations, and the Canadian Environmental Protection Act. It is said these statutes “govern and occupy the ground that the Orders in Council purport to effect.”
Reliance is placed on the decision of the English Court of Appeal in Laker Airways Ltd. v. Department of Trade, [1977] Q.B. 643, where that Court held it was unlawful for a Minister of the Crown to withdraw a designation of an authorized air carrier under an international treaty, where that designation had been granted in accord with authority provided by statute. The statute fettered the exercise of prerogative power even in relation to treaties by providing a process which thereafter the Crown and Ministers were not free to ignore. The applicants cite the words of Lord Denning M.R. (at pages 705-706):
Seeing that the prerogative is a discretionary power to be exercised for the public good, it follows that its exercise can be examined by the courts just as any other discretionary power which is vested in the executive. At several times in our history, the executive have claimed that a discretion given by the prerogative is unfettered: just as they have claimed that a discretion given by statute or by regulation is unfettered. On some occasions the judges have upheld these claims of the executive—notably in the Ship Money case, Rex v. Hampden (1637) 3 State Tr. 826 and in one or two cases during the Second World War, and soon after it—but the judges have not done so of late. The two outstanding cases are Padfield v. Minister of Agriculture, Fisheries and Food [1968] A.C. 997, and Secretary of State for Education and Science v. Tameside Metropolitan Borough Council [1976] 3 W.L.R. 641, where the House of Lords have shown that when discretionary powers are entrusted to the executive by statute, the courts can examine the exercise of those powers to see that they are used properly, and not improperly or mistakenly. By “mistakenly” I mean under the influence of a misdirection in fact or in law. Likewise it seems to me that when discretionary powers are entrusted to the executive by the prerogative—in pursuance of the treaty-making power—the courts can examine the exercise of them so as to see that they are not used improperly or mistakenly.
Lord Denning’s comments were subsequently questioned by Lord Roskill in the House of Lords in Council of Civil Service Unions v. Minister for the Civil Service, [1984] 3 All E.R. 935, at page 955. Lord Roskill, who had been a member of the Court of Appeal which earlier decided Laker Airways, characterized as “far too wide” and as dicta, Lord Denning’s assertion that the prerogative, if exercised improperly or mistakenly, was reviewable.
Both the Laker Airways and Council of Civil Service Unions decisions do stand for the constitutional principles that Parliament by statute may withdraw, or may fetter or regulate the exercise of, prerogative powers of the Crown, and that it is the court in any given case which determines by its interpretation of the intent of Parliament whether and to what extent prerogative powers have been reduced by statutory enactment.
In this case I have considered the applicants’ submissions in relation to each of the statutes referred to and I have reviewed each Act and the regulations to which reference is made. My consideration is made in light of section 17 of the Interpretation Act, R.S.C., 1985, c. I-21 as it has been interpreted. That section provides:
17. No enactment is binding on Her Majesty or affects Her Majesty or Her Majesty’s rights or prerogatives in any manner, except as mentioned or referred to in the enactment.
In Alberta Government Telephones v. Canada (Canadian Radio-television and Telecommunications Commission), [1989] 2 S.C.R. 225, at page 281, then Chief Justice Dickson, speaking for the majority of the Supreme Court, said in relation to this section (then section 16 of the same Act, R.S.C. 1970, c. I-23):
It seems to me that the words “mentioned or referred to” in s. 16 are capable of encompassing: (1) expressly binding words (“Her Majesty is bound”); (2) a clear intention to bind which … “is manifest from the very terms of the statute”, in other words, an intention revealed when provisions are read in the context of other textual provisions … and, (3) an intention to bind where the purpose of the statute would be “wholly frustrated” if the government were not bound, or, in other words, if an absurdity (as opposed to simply an undesirable result) were produced. These three points should provide a guideline for when a statute has clearly conveyed an intention to bind the Crown.
In Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R., 3 at pages 59-61, Mr. Justice La Forest concluded that the Crown, in that case the Crown in right of Alberta, was bound by the Navigable Waters Protection Act [R.S.C., 1985, c. N-22], though it did not expressly so provide, as a necessary or logical implication of Parliament’s intention and because the purpose of the statute would be wholly frustrated or effectively emasculated, if this were not the case.
When one considers the statutes which the applicants contend have affected the prerogative power to pass the Orders in Council here in question it is clear that only the Canadian Environmental Protection Act expressly binds the Crown, but in my view none of them affects the Crown’s prerogative to provide for visits of naval vessels, whether nuclear powered or nuclear capable, of friendly foreign countries. In my view, none of the statutes suggested, or the regulations enacted thereunder, affects that power of the Crown by necessary implication. This is not to say that some interests of Her Majesty are not affected, but rather that this particular power is not. I turn to brief review of the statutes relied upon by the applicants.
The Atomic Energy Control Act and regulations thereunder provide for the regulation of atomic energy production, and use and possession of prescribed substances, to the lay person perhaps best understood as radioactive materials, all subject to licence to be granted by the Atomic Energy Control Board, unless in accord with its delegated authority the Board grants exemption in any case. The regulatory regime is substantially complete for Canada by reason of section 18 which declares all works and undertakings constructed for the production, use and application of atomic energy, or for production, refining or treatment of prescribed substances to be a work or works for the general advantage of Canada. Literal interpretation of that section would not include, in my opinion, ships of foreign nations visiting in Canadian ports. Section 11 of the Act provides for certain companies, incorporated or acquired under prior legislation to be wholly owned by the Minister, or by another company, in trust for Her Majesty, and for such companies to be agents of Her Majesty, but neither the Act nor the regulations affect directly in any other manner Her Majesty’s interests. In my view the purposes of the Act and regulations are to regulate, and to ensure safety, in the production, use or application of atomic energy or prescribed substances in Canada. They do not extend to the regulating of visits to Canadian ports, or operation in Canadian waters, of naval NPVs and NCVs of friendly foreign powers.
The Canada Shipping Act and the Dangerous Goods Shipping Regulations made under the Act are concerned with the registration, operation, staffing and crew qualifications and a host of other matters of concern in the regulation of merchant ships engaged in commercial operations in Canada, of Canadian ships outside Canadian waters, and many but not all of their provisions relate also to fishing boats and pleasure craft owned in Canada. The Act does not generally apply to foreign owned vessels except in some respects in relation to their operations in Canadian waters. Similarly, the Act does not apply in the case of Canadian naval vessels and it would be extraordinary to apply it to foreign naval vessels. Nor do the Dangerous Goods Shipping Regulations, in my view, apply in the case of foreign naval vessels. I conclude that the purposes of the Canada Shipping Act and the Dangerous Goods Shipping Regulations are not intended by Parliament to be applicable to naval vessels of friendly foreign powers visiting Canadian ports.
I come to the same conclusion in regard to the Canadian Environmental Protection Act, even though that Act expressly provides by section 4 that it is binding on Her Majesty in right of Canada or a province. The Act itself deals with a variety of environmental concerns and provides for regulatory authority, in cooperation with the provinces, for promoting environmental quality, objectives, guidelines and codes of practice, for regulating toxic substances, and nutrients in waters of Canada, for controlling operations of federal departments and agencies, for limiting international air pollution and restricting ocean dumping. Only the last of these might be seen as directly referable to foreign ships, but I do not consider the Act was intended to provide for regulation of visits by foreign naval vessels.
In the case of each statute I stress that their purposes do not include, and Parliament did not intend by these Acts and regulations to regulate visits to Canadian ports by naval NPVs and NCVs of friendly foreign states. As I have earlier set out, that is the pith and substance of the Orders in Council and they are not enacted in relation to the regulation of atomic energy, the shipment of dangerous goods or the regulation of adverse environmental conditions, even though visits by the vessels here authorized may incidentally affect those matters. It is not persuasive that Parliament used general words in these enactments and did not expressly exempt the visits of foreign naval vessels from their application. As the respondents point out the principles of international law, which affect statutory interpretation unless Parliament clearly enacts otherwise, provide within the doctrine of state immunity that vessels owned by a foreign state dedicated to public uses, as naval vessels are, are not subject to the law of other states, at least in terms of enforcement. None of the penal sanctions for violation of the statutes here raised would be enforceable in the case of violations by those visiting vessels. That principle is part of Canadian law, by virtue of the State Immunity Act, R.S.C., 1985, c. S-18.
Nothing in the provisions of the Atomic Energy Control Act or the Canada Shipping Act and Dangerous Goods Shipping Regulations or in the Canadian Environmental Protection Act, and nothing in the historic conditions of the mischief they were enacted to deal with persuades me that Parliament intended to withdraw or to fetter the prerogative of the Crown to provide for the visit of NPVs and NCVs to Canadian ports, in pursuance of Canada’s international relations and its defence policy. Further, it is my conclusion that the purposes of these statutes and regulations are not frustrated, or effectively emasculated, by recognizing that they do not extend to fettering the discretion of the Governor in Council in providing for visits by naval vessels of friendly foreign powers. Thus, I conclude that the prerogative power of the Crown here exercised is not affected by the statutes identified by the applicants. The Orders in Council were adopted within the authority and discretion of the Governor in Council under recognized prerogative power.
The application of the Guidelines Order
The applicants’ argument that the Governor in Council was subject to the Guidelines Order is substantially based upon the argument I have now disposed of, for their contention was that the prerogative power here exercised was improper since Parliament had, by statute, withdrawn the authority to make the orders here questioned. Since I find otherwise, that basis for the application of the Guidelines Order disappears, and with it the applicants’ case for arguing that the Minister of National Defence or the Secretary of State for External Affairs were initiators of a proposal subject to that Order, or that the Minister of Transport would be an initiating department under the Canada Shipping Act and the Dangerous Goods Shipping Regulations.
One further aspect of the issue concerning the application of the Guidelines Order is left to be explored. That is, whether that Order, and necessarily, the statute under which it was adopted, the Department of the Environment Act can be said to affect the prerogative power of the Governor in Council to adopt the Orders in Council here questioned. Much the same issue arose in Angus v. Canada, supra, though it was there described in different terms, that is, whether the application of the Guidelines Order was a prerequisite to action by the Governor in Council, in that case not based on the prerogative power but upon authority delegated by Parliament. For the majority of the Court of Appeal Mr. Justice MacGuigan found that the Guidelines Order did not apply to decisions of the Governor in Council made pursuant to section 64 of the National Transportation Act, 1987 [R.S.C., 1985 (3rd Supp.), c. 28] since the Governor in Council could not have been intended to be included as a “department, board or agency of the Government of Canada” to which the Guidelines Order was expressly made applicable in terms consistent with the authorizing statutory provision, section 6 of the Department of the Environment Act.
In that case, though he concurred in the result, Mr. Justice Décary reached a different conclusion concerning the application of the Guidelines Order, holding that it was applicable and constituted a condition precedent to the exercise of authority by the Governor in Council under the National Transportation Act, 1987. The applicants urge that this Court follow Décary J.A., particularly because in the later decision of Mr. Justice La Forest, speaking for the majority of the Supreme Court, in Friends of the Oldman River Society, supra, at page 46, the overall analysis of the application of the Guidelines Order by Décary J.A. was described as helpful. Since the issue was not before him, La Forest J. expressly declined to comment on the application of the Guidelines Order to the Governor in Council.
This Court is, of course, bound by the decision of the majority of the Court of Appeal in Angus. But even if that decision did not so clearly stipulate that the Guidelines Order is not applicable to decisions of the Governor in Council, I would reach that same conclusion in this case. I would do so for essentially the same reasons as I have earlier set out in regard to the application of the Atomic Energy Control Act and other statutes in the case of the Orders in Council here made. The purposes and the context of the Department of the Environment Act and of the Guidelines Order do by their terms implicitly bind the Crown, and Parliament clearly so intended, but there is no intent that the Act extend to, and the purposes of the statute are not frustrated by excluding, the power of the Governor in Council to regulate for international relations and for defence policy and national security purposes, and to authorize visits to Canadian ports of naval vessels, nuclear powered or nuclear capable, belonging to friendly foreign states.
Finally, there is another reason why the Guidelines Order is not applicable, in my view, in this case. In his analysis of the Order in Friends of the Oldman River Society, La Forest J. said (at page 47):
That is not to say that the Guidelines Order is engaged every time a project may have an environmental effect on an area of federal jurisdiction. There must first be a “proposal” which requires an “initiative, undertaking or activity for which the Government of Canada has a decision making responsibility”. (Emphasis added.) In my view the proper construction to be placed on the term “responsibility” is that the federal government, having entered the field in a subject matter assigned to it under s. 91 of the Constitution Act, 1867, must have an affirmative regulatory duty pursuant to an Act of Parliament, which relates to the proposed initiative, undertaking or activity. It cannot have been intended that the Guidelines Order would be invoked every time there is some potential environmental effect on a matter of federal jurisdiction. Therefore, “responsibility” within the definition of “proposal” should not be read as connoting matters falling generally within federal jurisdiction. Rather, it is meant to signify a legal duty or obligation. Once such duty exists, it is a matter of identifying the “initiating department” assigned responsibility for its performance, for it then becomes the decision-making authority for the proposal and thus responsible for initiating the process under the Guidelines Order.
If I understand this analysis and here seek to follow it, I find that there is no affirmative regulatory duty pursuant to an Act of Parliament in this case. Nor can any such duty be said to arise in relation to the prerogative power here exercised. No duty to authorize visits by foreign naval vessels exists; the matter is one for decision entirely within the discretion of the Governor in Council. Thus, there would be no initiating department, unless it be the Department of National Defence, to which, again in exercise of prerogative power, the Governor in Council is said to have earlier assigned responsibility for authorization of visits once the policy had been approved. Such a situation, creating an affirmative regulatory duty not by statute but by delegation of prerogative power, may raise a question for another day. Whether the courts may intervene to ensure proper exercise of such authority delegated by prerogative power, was not here argued. I note it was discussed by some members of the House of Lords in Council of Civil Service Unions, supra.
My conclusion is that the Governor in Council is not bound by the Guidelines Order and there was no condition precedent that the Order be applied before adoption of the Orders in Council here in question. There is thus no basis for an order in the nature of mandamus to compel any one of the respondents to undertake an initial screening or assessment in accord with the Guidelines Order.
The applicants’ claim of bad faith on the part of the Governor in Council
The applicants urge that certiorari is appropriate in light of what is alleged to be bad faith in the exercise of prerogative power in this case. It would be only in an extraordinary case, where the Court finds on the basis of the evidence adduced that the Governor in Council, purporting to act under the prerogative, has in fact done so for some purpose that is improper because it lies outside the prerogative power. This is not such a case.
The applicants’ submissions concerning bad faith are based on three perceptions. First, it is urged that the Governor in Council ignored the advice of senior officers of the Department of the Environment that the Guidelines Order was here applicable, and by implication that there be a public review of the policy, particularly in light of the widespread public concern which was known to Ministers in Cabinet to whom that concern had been conveyed. It is urged that the decision was made as it was, primarily to avoid a public review. The latter conclusion is not supported by any evidence. The suggestion that the Governor in Council acted despite specific advice that there be a public review is based on a memorandum recommending that the Guidelines Order applies to the decisions here made and that its process be followed. That memorandum, over the names of, but not signed by, officers of the Federal Environmental Assessment Review Office, is marked “Secret” and appended as an exhibit to the affidavit of David Williams, sworn February 7, 1992. The document apparently came into the hands of Mr. Williams and others in ways not identified. Assuming for the moment it is a document produced in government that would be admissible as evidence, though hearsay, on the principles of necessity and reliability, a finding I do not here need to make, there is no evidence that the document was presented to the Governor in Council, or that in the process of considering advice it was ignored and not weighed carefully either in the Department of the Environment as advisor to National Defence, or in the latter department in the process leading to the report recommending the action taken by the Governor in Council.
Secondly, it is urged that the action taken was designed simply to avoid a public review despite known public concern about the visits of NPVs and NCVs. There is evidence from the affidavits that at least some of the respondent Ministers were apprised through correspondence of the widespread public concern for a public review of the policy permitting visits, especially to Victoria and Esquimault, by U.S. and U.K. naval NPVs and NCVs. That awareness on their part, and the references, in the report of National Defence recommending the action here taken, to public concern about the visits and the risks perceived by interest groups, does not, in the absence of a legal duty to conduct a public review, lead to any supportable conclusion that the Governor in Council acted in bad faith in any legal sense. The evidence from affidavits and from the public report of the Department of National Defence, is that some Ministers, respondents here, were aware of public concern, and there is no evidence that was not a factor considered in the decisions either of National Defence or of the Governor in Council.
Finally, it is urged for the applicants that the report of the Department of National Defence is so seriously flawed, so wrong in many respects and so superficial that it cannot be considered as an effort performed in good faith to assess potential environmental consequences of visits by NPVs and NCVs. Those arguments, strenuously advanced, are based upon the opinions of affiants and the hearsay evidence of reports from published sources which are appended as exhibits to a number of affidavits. They are predicated also on the expectations of the applicants about the more detailed report they anticipate would result from a public review conducted under the Guidelines Order. The latter expectations cannot be evidence. The opinions of affiants on the merits of the policy adopted are not admissible evidence either. In so far as hearsay from published sources is concerned, since the applicants themselves acknowledge that information about NPVs and NCVs, their operations and risks, is kept secret by the governments concerned there is really no basis upon which the hearsay evidence here offered about these matters can be taken to be reliable. The applicants are critical of the report of National Defence as based in large part on information from foreign governments, but that information base must here be assumed as more reliable than that available to and provided here by the applicants. There is no basis for concluding, on the basis of the applicants’ criticisms of the report of National Defence, that the report was prepared in bad faith and that the decisions of the Governor in Council were tainted by bad faith or made for an improper purpose not within the scope of the prerogative power to deal with international relations and defence and security policy.
Conclusion
For the reasons here set out I have concluded that the applicants’ originating motion cannot be sustained and an order goes that it be dismissed.
While I have not been so persuaded on the basis of preliminary procedural issues raised by the respondents, my conclusion is reached on the merits of the application. I find that Orders in Council P.C. 1991-2083 and P.C. 1991-2084, both dated October 30, 1991, were adopted in exercise of the prerogative powers of the Crown in regard to international relations and national defence, powers that have not been withdrawn or regulated in their exercise by statutes enacted by Parliament. Those powers are not, in regard to the decisions made, subject to the Guidelines Order. They were not decisions made in bad faith as the applicants allege. Thus there is no basis for an order in the nature of certiorari.
Since I find the Guidelines Order is not applicable there is no ground for an order in the nature of mandamus to require any of the respondents to conduct an initial screening or assessment in accord with that Order. While I find that the Guidelines Order is not applicable in the case of these decisions, I also find that even if that Order were applicable it does not by its terms impose a duty upon any of the respondents to refer the matter of the visits by foreign naval NPVs and NCVs to a public review of environmental concerns. There is thus no ground for an order in the nature of mandamus against any of the respondents.
In accord with Rule 1618 [as enacted by SOR/92-43, s. 19] of the Federal Court Rules, since I conclude there are no special reasons to order otherwise, costs are not awarded in relation to this application for judicial review.