A-88-85
The Queen (Appellant) (Defendant)
v.
Carole Sylvestre (Respondent) (Plaintiff)
INDEXED AS: SYLVESTRE v. R. (F.C.A.)
Court of Appeal, Pratte, Marceau and Lacombe
JJ.—Montreal, June 16, 1986.
Constitutional law — Charter of Rights — Life, liberty and
security — Appeal from Trial Division dismissal of motion to
strike statement of claim as disclosing no reasonable cause of
action — Respondent released from Armed Forces for homo
sexuality — Claim for damages and for quashing of dismissal
and applicable administrative orders for discrimination
Pre-Charter cases holding relationship between Crown and
military personnel precluding remedies in civil court — Chart
er not giving respondent's action legal basis formerly lacking
— Argument based on Charter s. 7 dismissed — Doubtful
whether right to liberty including right to be homosexual — In
any event, dismissal not impairing liberty to be homosexual —
Respondent only deprived, if at all, of right, if any, to be in
Armed Forces — Dismissal of respondent not infringing
Charter s. 7 right to security — Appeal allowed — Canadian
Charter of Rights and Freedoms, being Part I of the Constitu
tion Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11
(U.K.), ss. 7, 15.
Armed forces — Release for homosexuality — Appeal from
Trial Division dismissal of motion to strike statement of claim
on ground disclosing no reasonable cause of action — Whether
release discriminatory and illegal — Pre-Charter decision
holding relationship between Crown and military precluding
remedies in civil court — Charter s. 7 right to liberty and
security not infringed — Appeal allowed — Canadian Charter
of Rights and Freedoms, being Part I of the Constitution Act,
1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.), ss. 7,
15.
Practice — Pleadings — Motion to strike — Appeal from
Trial Division dismissal of motion to strike as disclosing no
reasonable cause of action — Armed Forces — Release for
homosexuality — Respondent suing Crown on basis of Charter
s. 7 — Statement of claim disclosing no reasonable cause of
action — Charter not giving action legal basis formerly lack
ing — Appeal allowed — Canadian Charter of Rights and
Freedoms, being Part I of the Constitution Act, 1982, Schedule
B, Canada Act 1982, 1982, c. 11 (U.K.), ss. 7, 15.
CASE JUDICIALLY CONSIDERED
CONSIDERED:
Gallant v. The Queen in right of Canada (1978), 91
D.L.R. (3d) 695 (F.C.T.D.).
COUNSEL:
Jean-Marc Aubry and James Mabbutt for
appellant (defendant).
Suzanne Paradis for respondent (plaintiff).
SOLICITORS:
Deputy Attorney General of Canada for
appellant (defendant).
Jutras & Associés, Drummondville, Quebec,
for respondent (plaintiff).
The following is the English version of the
reasons for judgment of the Court delivered orally
by
PRATTE J.: This appeal is from a decision of the
Trial Division [[1984] 2 F.C. 516] dismissing a
motion to strike a statement of claim on the
ground that it discloses no reasonable cause of
action.
We are all of the view that, as soon as the
statement of claim filed by the respondent and the
applicable law are examined, it is apparent that
the statement of claim discloses no cause of action,
and that accordingly it should have been struck by
the Trial Judge.
The respondent was a member of the Armed
Forces until, on March 2, 1983, the authorities
terminated her military service on the single
ground that she had admitted being homosexual.
She maintained that this decision was unlawful,
and that the administrative orders under which it
was made were unlawful as well. She therefore
asked that the decision and orders be set aside, and
in addition she claimed damages.
The Trial Judge appeared to recognize that,
before the Constitution Act, 1982 [Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.)] and the
Charter [Canadian Charter of Rights and Free
doms, being Part I of the Constitution Act, 1982,
Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)]
contained in it came into effect, this action had no
chance of succeeding because it was then estab
lished, as Marceau J. put it in Gallant v. The
Queen in right of Canada (1978), 91 D.L.R. (3d)
695 (F.C.T.D.), "that the Crown is in no way
contractually bound to the members of the Armed
Forces, that a person who joins the Forces enters
into a unilateral commitment in return for which
the Queen assumes no obligations, and that rela
tions between the Queen and her military person
nel, as such, in no way give rise to a remedy in the
civil courts."
The Trial Judge nevertheless dismissed the
motion to strike because he held that the adoption
of the Charter could give to the respondent's
action a legal basis which it would formerly have
lacked. We consider that in this respect he was in
error.
The respondent cannot rely on section 15 of the
Charter, in view of the date of her release. She
therefore based her action solely on section 7,
which guarantees a right to "life, liberty and
security".
In the submission of the respondent, the right to
liberty protected by section 7 includes a right to be
a homosexual. It follows, she argued, that her
release was unlawful. The answer to this argu
ment, apart from the fact that it is doubtful
whether the scope of section 7 is that wide, is that
the decision and orders impugned in no way
impaired the respondent's liberty to be a homosex
ual. If she was deprived of anything by the deci
sion and orders, it was only of her right to be in the
Armed Forces (assuming that she has such a
right). This argument must therefore be dismissed.
The respondent further contended that the deci
sion and orders challenged by her contravened
section 7 for another reason, namely that they
impaired her right to security, since as a conse
quence of the decision she had been deprived of
paid employment. In her submission, it follows
that the decision terminating her military service
should have been made in accordance with "the
rules of natural justice", and this was not done.
It seems clear that this argument must also be
dismissed. Even giving a broad and liberal inter
pretation to section 7, it cannot be said, in our
view, that the mere decision to release a soldier is
an invasion of her security.
The appeal will therefore be allowed, the deci
sion a quo set aside, the motion to strike made by
the appellant granted and the statement of claim
of the plaintiff-respondent struck accordingly, the
whole with costs at trial and on appeal.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.