DATE:    20010518

                        DOCKET:  C33887

 

COURT OF APPEAL FOR ONTARIO

 

LASKIN, GOUDGE and FELDMAN JJ.A.

 

BETWEEN:

 

 

 

 

 

CONRAD BLACK

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Alan J. Lenczner, Q.C., for the appellant

 

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                                    Plaintiff

                                    (Appellant)

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- and -

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JEAN CHRÉTIEN and THE ATTORNEY GENERAL OF CANADA

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David W. Scott, Peter K. Doody and   Jan Brongers, for the respondents

 

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                                    Defendants

                                    (Respondents)

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Heard:  September 12, 2000

 

On appeal from the order of Chief Justice Patrick J. LeSage dated March 15, 2000.

LASKIN J.A.:

A.     INTRODUCTION

[1]               The appellant Conrad Black wants to be appointed a peer in the United Kingdom, which would allow him to sit in the House of Lords.  He alleges that Prime Minister Jean Chrétien intervened with the Queen to oppose his appointment and that, but for the Prime Minister’s intervention, he would have received the honour and title of peer.  Mr. Black has sued the Prime Minister for abuse of power, misfeasance in public office and negligence.  He has sued the Government of Canada, represented by the Attorney General of Canada, for negligent misrepresentation.  He seeks declaratory relief and damages of $25,000.

[2]               The respondents Prime Minister Chrétien and the Attorney General of Canada brought a motion to dismiss all of Mr. Black’s claims (except the claim for negligent misrepresentation against the Government) on two grounds:  first, that the claims are not justiciable and therefore disclose no reasonable cause of action; and second, that the Superior Court has no jurisdiction to grant declaratory relief against the respondents because that jurisdiction lies exclusively with the Federal Court.

[3]               In a decision reported as Black v. Canada (Prime Minister) (2000), 47 O.R. (3d) 532 (Sup. Ct.), LeSage C.J.S.C. held that the Superior Court had jurisdiction to entertain Mr. Black’s claims.  However, the motions judge dismissed these claims, concluding at p. 544 that “[i]t is [the Prime Minister’s] prerogative, non-reviewable in court, to give advice and express opinions on honours and foreign affairs … His actions and his reasons for giving that advice or expressing those opinions are not justiciable”.

[4]               Black appeals on the issue of justiciability and the respondents cross-appeal on the jurisdiction of the Superior Court to grant declaratory relief.  Together, the appeal and the cross-appeal raise the following three issues:

1)                Is it plain and obvious that, in advising the Queen about the conferral of an honour on a Canadian citizen, the Prime Minister was exercising a prerogative power of the Crown?;

 

2)                If so, is it plain and obvious that this exercise of the prerogative is not reviewable by the courts?; and

 

3)                If the Prime Minister’s exercise of the prerogative is reviewable, does the Superior Court have jurisdiction to grant declaratory relief?

[5]               For the reasons that follow, I would answer yes to all three questions.  Because of my answers to the first two questions, I would dismiss Mr. Black’s appeal.  In my view, in advising the Queen about the conferral of an honour on a Canadian citizen, the Prime Minister was exercising his honours prerogative, a prerogative power that is beyond the review of the courts.

B.    THE CLAIM

[6]               For the purpose of both the motion before LeSage C.J.S.C. and this appeal, the facts pleaded in Mr. Black’s amended statement of claim must be taken as true and assumed to be proven.  I will briefly summarize Mr. Black’s pleading.

(a)       The factual allegations

[7]               In February 1999, the leader of the British Conservative Party advised Mr. Black that he intended to nominate him for appointment by the Queen as a peer.  At the time, Mr. Black was a Canadian citizen ordinarily residing in England.  The nomination was accepted and recommended by the British Government.  The appointment would permit Mr. Black to use a title and sit in the House of Lords. 

[8]               On May 10, 1999, the British Government asked the Government of Canada to confirm the absence of a legal impediment to conferring a peerage on Mr. Black.  On May 24, the Canadian High Commissioner in London spoke to Mr. Black.  The Commissioner told Mr. Black that he had been advised by the Honours Committee of the Canadian Government that Mr. Black was not prevented from accepting a peerage by any statutory bar in Canada, though consultation between the United Kingdom and Canada was customary.  Mr. Black claims that hundreds of honours, including more that 25 titular honours, have been bestowed on Canadians without objection by the Canadian Government.  Some of those honours have been bestowed during Prime Minister Chrétien’s term in office. 

[9]               On May 28, 1999, the Prime Minister of England, Mr. Blair, told Mr. Black that as long as he became a British citizen and did not use the title in Canada, the Canadian Government did not object to the peerage.  The Canadian Government confirmed Prime Minister Blair’s advice in a letter to the British Government dated June 9, 1999.  The British High Commission received the same advice from Canada.

[10]          Relying on this advice, Mr. Black immediately applied for, and on June 11, 1999 obtained, British citizenship.  On June 14, Prime Minister Blair wrote Mr. Black confirming that his nomination as a peer was being forwarded to the Queen.  Mr. Black was told that his appointment would be made on June 18, 1999.

[11]          However, on June 17, Prime Minister Blair told Mr. Black that Prime Minister Chrétien had intervened with the Queen to oppose Mr. Black’s peerage, citing a contravention of Canadian law.  Prime Minister Chrétien asserted that he had a right to block Mr. Black’s nomination because of the Nickle Resolution passed by the House of Commons in 1919, which requested the King to refrain from conferring titles on any of his Canadian subjects.  Later that day, Mr. Black telephoned Prime Minister Chrétien.  The Prime Minister refused to change his position.  He defended his actions by referring to the Nickle Resolution and the status of the monarchy in Canada.  He added that he had not been kindly treated by the National Post, a newspaper published by Mr. Black.  This was the third time in six months that the Prime Minister had expressed to Mr. Black his dissatisfaction with comments made about him in the National Post.

[12]          Because of Prime Minister Chrétien’s intervention with the Queen, Mr. Black’s appointment as a peer was suspended or deferred “with considerable public embarrassment and inconvenience” to him.  The Prime Minister later tried to justify his actions by referring to a Regulation passed in 1968 and a Policy issued in 1988.

(b)       Canadian policy statements

[13]          Mr. Black’s amended statement of claim refers to three Canadian policy statements dealing with the granting of honours to Canadian citizens by foreign countries:  the 1919 Nickle Resolution, the 1968 Regulation and the 1988 Policy.

[14]          The Nickle Resolution passed by the House of Commons in 1919 asked the King “to refrain hereafter from conferring any title or honour or titular distinction upon any of your subjects domiciled or ordinarily resident in Canada …”.  The amended statement of claim states that Prime Minister Chrétien relied on the Nickle Resolution in opposing Mr. Black’s appointment.  However, Mr. Black pleads that the Nickle Resolution “had no legal effect on the prerogative of Her Majesty the Queen in Right of the United Kingdom” and “without the status of a statute … could not affect in any way the prerogative of Her Majesty the Queen.”  Mr. Black also pleads that the Nickle Resolution must yield to the Citizenship Act, R.S.C. 1985, c. C-29, which permits and recognizes dual citizenship with the United Kingdom.  And, finally, Mr. Black pleads that he was a British citizen resident in the United Kingdom before the Prime Minister intervened with the Queen.

[15]          Mr. Black also alleges that Prime Minister Chrétien relied both on the 1968 Regulation and the 1988 Policy “after the fact” and that neither justified the Prime Minister’s actions.  The 1968 Regulation[1] was issued by the Secretary of State Department, the 1988 Policy[2] by the Clerk of the Privy Council.  Both the Regulation and the Policy require foreign countries to obtain the Government of Canada’s approval before awarding an order, a decoration or a medal to a Canadian citizen.  And both the Regulation and the Policy state that the Government of Canada shall not grant approval for an award “that carries with it an honourary title or confers any precedence or privilege.”  However, s. 5 of the 1968 Regulation states that “approval is generally given to accept orders and decorations conferred on Canadian citizens who have dual nationality, provided acceptable evidence is offered that the recipient is ordinarily resident in or has a closer actual connection with the donor country”.

(c)       Relief sought

[16]          In substance, Mr. Black seeks three declarations:  first, a declaration that the Prime Minister and the Government of Canada had no right to advise the Queen not to confer an honour on a British citizen or a dual citizen; second, a declaration that the Prime Minister committed an abuse of power by intervening with the Queen to prevent him from receiving a peerage; and third, a declaration that the Government of Canada negligently misrepresented to Mr. Black that he would be entitled to receive a peerage if he became a dual citizen and refrained from using his title in Canada.  Mr. Black also seeks damages of $25,000 against both respondents for abuse of power, negligence and negligent misrepresentation.  The respondents acknowledge that the negligent misrepresentation claim against the Government of Canada can proceed to trial.  However, they move to dismiss all other claims against the Government of Canada and all claims against the Prime Minister.

C.    THE DECISION OF THE MOTIONS JUDGE

[17]          LeSage C.J.S.C. dealt first with the question whether the Superior Court had jurisdiction to grant declaratory relief against the Prime Minister and the Government of Canada.  He held that it did.  He concluded at p. 539 that Mr. Black’s claim did not “come clearly or exclusively within the jurisdiction of the Federal Court (Trial Division)” under s. 18(1) of the Federal Court Act, R.S.C. 1985, c. F-7 because Prime Minister Chrétien did not act under an Act of Parliament or make any “order”.

[18]          The motions judge then considered whether Mr. Black’s claims were justiciable.  He concluded that they were not.  He held that the justiciability of the Prime Minister’s actions depended on how these actions were characterized.  The motions judge characterized them as an exercise of the Crown prerogative in relation to the granting of honours or the giving of advice in foreign affairs.  In his view, these actions came “within the political area of the prerogative that is not subject to review in the courts”.  Supra, at p. 541.

[19]          The motions judge then looked separately at the claims in negligence and for abuse of power.  He concluded that these claims could not succeed.  Having found that Prime Minister Chrétien acted within his prerogative, the motions judge held that neither the improper exercise of that prerogative nor the wisdom of the Prime Minister’s actions was justiciable.  The motions judge therefore struck out all claims as non-justiciable, except the claim for negligent misrepresentation against the Government of Canada, which was permitted to proceed.

D.    DISCUSSION

[20]          The respondents brought their motion under Rule 21.01(1)(b) and Rule 21.01(3)(a) of the Rules of Civil Procedure.  Under Rule 21.01(1)(b), the respondents contend that Mr. Black’s claim, other than the negligent misrepresentation claim against the Government, discloses no reasonable cause of action.  Under Rule 21.01(3)(a), they contend that the Superior Court has no jurisdiction to grant the declaratory relief Mr. Black requests.

[21]          I will deal first with whether Mr. Black’s claim discloses a reasonable cause of action.  The test under Rule 21.01(1)(b) is well established.  The threshold is low.  The court must assume that the facts pleaded are true.  The court should strike out the statement of claim only if it is “plain and obvious” that the claim discloses no reasonable cause of action:  “Neither the length and complexity of the issues, the novelty of the cause of action, nor the potential for the defendant to present a strong defence should prevent the plaintiff from proceeding with his or her case.  Only if the action is certain to fail … should the relevant portions of the plaintiff’s statement of claim be struck out.”  Hunt v. Carey Canada Inc., [1992] S.C.R. 959 at 980.  In applying this test, counsel for Mr. Black appropriately cautioned us not to give this statement of claim extra scrutiny because of who the parties are.

[22]          The broad question raised by Mr. Black’s pleading is whether it discloses a justiciable cause of action against the Prime Minister.  As I stated earlier, this broad question divides into two issues:  Is it plain and obvious that in advising the Queen about the conferral of an honour on a Canadian citizen the Prime Minister was exercising a prerogative power?  If so, is the exercise of this prerogative power reviewable by the courts?

 

First issue:  Was the Prime Minister exercising a prerogative power?

 

[23]          The motions judge concluded that the Prime Minister’s communication with the Queen was an exercise of the prerogative power to grant honours and conduct foreign affairs.  I agree with the motions judge that Prime Minister Chrétien was exercising a prerogative power, although I rest my own conclusion on the honours prerogative alone.

[24]          Mr. Black submits that the motions judge erred in his conclusion for four reasons.  First, because Mr. Black did not plead that the Prime Minister exercised a Crown prerogative, the motions judge should not have concluded that he did.  Second, in Canada the Prime Minister does not have the power to exercise the Crown prerogative, only the Governor-General does.  Third, the actions of Prime Minister Chrétien pleaded in the statement of claim were not an exercise of the Crown prerogative, either in relation to the granting of honours or the conduct of foreign affairs, but an unsolicited personal intervention in which the Prime Minister gave wrong legal advice.  Fourth, in Canada the prerogative power to conduct foreign affairs has been displaced by the Department of Foreign Affairs and International Trade Act, R.S.C. 1985 c. E-22.

[25]          To put these submissions in context, I will briefly review the nature of the Crown’s prerogative power.  According to Professor Dicey, the Crown prerogative is “the residue of discretionary or arbitrary authority, which at any given time is left in the hands of the Crown”.  Dicey, Introduction to the Study of the Law of the Constitution 10th ed. (London:  Macmillan, 1959) at p. 424.  Dicey’s broad definition has been explicitly adopted by the Supreme Court of Canada and the House of Lords.  See Re The Effect of the Exercise of the Royal Prerogative of Mercy upon Deportation Proceedings, [1933] S.C.R. 269 at 272-73 and A.G. v. DeKeyser’s Royal Hotel, [1920] A.C. 508 at 526.  See also Peter Hogg and Patrick Monahan, Liability of the Crown 3rd ed. (Toronto: Carswell, 2000) at p. 15.

[26]          The prerogative is a branch of the common law because decisions of courts determine both its existence and its extent.  In short, the prerogative consists of “the powers and privileges accorded by the common law to the Crown.”  Peter Hogg, Constitutional Law in Canada Loose-Leaf Edition (Toronto: Carswell, 1995) at 1.9.  See also Case of Proclamations (1611), 77 E.R. 1352 (K.B.).  The Crown prerogative has descended from England to the Commonwealth.  As Professor Cox has recently observed, “it is clear that the major prerogatives apply throughout the Commonwealth, and are applied as a pure question of law”.  N. Cox, The Dichotomy of Legal Theory and Political Reality:  The Honours Prerogative and Imperial Unity, 14 Australian Journal of Law and Society (1998-99) 15 at 19.

[27]          Despite its broad reach, the Crown prerogative can be limited or displaced by statute.  See Parliament of Canada Act, R.S.C. 1985 c. P-1 s. 4.  Once a statute occupies ground formerly occupied by the prerogative, the prerogative goes into abeyance.  The Crown may no longer act under the prerogative, but must act under and subject to the conditions imposed by the statute.  A.G. v. DeKeyser’s Royal Hotel, supra.  In England and Canada, legislation has severely curtailed the scope of the Crown prerogative.  Dean Hogg comments that statutory displacement of the prerogative has had the effect of “shrinking the prerogative powers of the Crown down to a very narrow compass”.  Supra.  Professor Wade agrees:

[I]n the course of constitutional history the Crown’s prerogative powers have been stripped away, and for administrative purposes the prerogative is now a much-attenuated remnant.  Numerous statutes have expressly restricted it, and even where a statute merely overlaps it the doctrine is that the prerogative goes into abeyance.  E.C.S. Wade, Administrative Law, 6th ed. (Oxford: Clarendon Press, 1988) at pp. 240-41.

 

Nonetheless, as I will discuss, the granting of honours has never been displaced by statute in Canada and therefore continues to be a Crown prerogative in this country.

[28]          I turn now to Mr. Black’s submissions.  Mr. Black did not plead that Prime Minister Chrétien exercised a prerogative power.  Therefore, he first submits that on a Rule 21.01(1)(b) motion, LeSage C.J.S.C. should not have characterized his allegations about the Prime Minister’s actions as amounting to an exercise of the prerogative, and then used that characterization to strike out the amended statement of claim.  If the Prime Minister is relying on the prerogative, he must plead it in his statement of defence.

[29]          I disagree with this submission.  As is evident from my earlier discussion, whether the Prime Minister exercised a prerogative power is a question of law.  The court has the responsibility to determine whether a prerogative power exists and, if so, its scope and whether it has been superseded by statute.  Although Mr. Black did not expressly plead that the Prime Minister was exercising the Crown prerogative, the motions judge was entitled to consider the “legal character” of Mr. Black’s allegations.

[30]          That the motions judge was entitled to do so on a motion under rule 21.01(1)(b) is supported by the Supreme Court of Canada’s decision in Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441.  In that case, the plaintiffs pleaded that the decision of the federal cabinet to allow the United States to test cruise missiles in Canada violated s. 7 of the Charter.  The Court struck out the claim, holding that it did not disclose a reasonable cause of action.  The plaintiffs did not plead that in deciding to permit cruise missile testing the cabinet was exercising the Crown prerogative.  Nonetheless, both the Federal Court of Appeal and Wilson J. in her concurring judgment in the Supreme Court of Canada held that cabinet’s decision was an exercise of the Crown prerogative relating to national defence and foreign affairs.  That finding alone did not insulate the cabinet’s decision from review under the Charter.  But Wilson J.’s judgment shows that in determining whether a statement of claim discloses a reasonable cause of action, the court may consider whether, on the allegations pleaded, the defendant exercised a prerogative power.

[31]          Mr. Black’s second submission is that the Prime Minister cannot exercise the Crown prerogative.  He submits that in Canada, only the Governor-General can exercise the prerogative.  I find no support for this proposition in theory or in practice.  Admittedly, the Governor-General is the Queen’s permanent representative in Canada.  The 1947 Letters Patent Constituting the Office of the Governor-General is the instrument by which the Monarch delegates her prerogative powers for application in Canada.  The Letters Patent empowers the Governor-General “to exercise all powers and authorities lawfully belonging to Us in respect of Canada.”  By convention, the Governor-General exercises her powers on the advice of the Prime Minister or Cabinet.  Although the Governor-General retains discretion to refuse to follow this advice, in Canada that discretion has been exercised only in the most exceptional circumstances.  See Paul Lordon, Q.C., Crown Law (Toronto: Butterworths, 1991) at p. 70.

[32]          Still, nothing in the Letters Patent or the case law requires that all prerogative powers be exercised exclusively by the Governor-General.  As members of the Privy Council, the Prime Minister and other Ministers of the Crown may also exercise the Crown prerogative.  See Lordon, supra, at p. 71.  The reasons of Wilson J. in Operation Dismantle affirm that prerogative power may be exercised by cabinet ministers and therefore does not lie exclusively with the Governor-General. Similarly, in England the prerogative “[was] gradually relocated from the Monarch in person to the Monarch’s advisors or ministers.  Hence it made increasing sense to refer to those powers as belonging to the Crown …”.  Bridgid Hadfield, Judicial Review and the Prerogative Power in M. Sunkin and S. Payne, The Nature of the Crown (Oxford: Oxford University Press, 1999) at p. 199.  This gradual relocation of the prerogative is consistent with Professor Wade’s general view of the Crown prerogative as an “instrument of government”.  Commentary on Dicey’s Introduction to the Study of the Law of the Constitution 9th ed. (London:  Macmillan, 1950).  The conduct of foreign affairs, for example, “is an executive act of government in which neither the Queen nor Parliament has any part”.  F.A. Mann, Foreign Affairs in English Courts (Oxford: Clarendon Press, 1986) at p. 2.  See also Barton v. Commonwealth of Australia (1974), A.L.J.R. 161 at 172. 

[33]          Counsel for the respondents points out that if Mr. Black were correct, the Prime Minister – whose powers are not enumerated in any statute – would have no legal authority to speak for Canada on foreign affairs.  This proposition is, on its face, absurd.  I therefore reject Mr. Black’s submission that only the Governor-General can exercise prerogative powers in Canada.  I conclude that the Prime Minister and the Government of Canada can exercise the Crown prerogative as well.

[34]          Mr. Black’s third submission is that even if the Prime Minister can exercise prerogative power relating to the granting of honours or the conduct of foreign affairs, on the facts pleaded in the amended statement of claim, Prime Minister Chrétien was doing neither.  He was not deciding whether to grant Mr. Black an honour – that decision rests with the Queen – and he was not conducting foreign affairs.  Instead, according to Mr. Black, Prime Minister Chrétien intervened personally with the Queen and gave unsolicited and wrong legal advice.

[35]          In my view, however, whether one characterizes the Prime Minister’s actions as communicating Canada’s policy on honours to the Queen, giving her advice on Mr. Black’s peerage, or opposing Mr. Black’s appointment, he was exercising the prerogative power of the Crown relating to honours.

[36]          Unquestionably, the granting of honours is the prerogative of the Crown.  The Monarch is “the fountain, parent and distributor of honours, dignities, privileges and franchises”.  Joseph Chitty, A Treatise on the Law of the Prerogatives of the Crown:  And the Relative Duties and Rights of the Subject (London: Butterworths and Son, 1820) at p. 6.  Because no statute in Canada governs the conferral of honours, this prerogative has not been displaced by federal law.  Nor has it been limited by the common law.  As Hogg and Monahan observe, supra, at pp. 18-19, appointments and honours is one area in which the prerogative power “remains meaningful”.  Their view is consistent with the opinion of Lord Roskill in the important House of Lords decision, Council of Civil Service Unions v. Minister for the Civil Service, [1985] 1 A.C. 374.  In his speech in that case Lord Roskill said at p. 418 that the modern exercise of the prerogative includes “the making of treaties, the defence of the realm, the prerogative of mercy, the grant of honours, the dissolution of Parliament and the appointment of ministers as well as others …”.  [Emphasis added.]

[37]          It is one thing to state that the honours prerogative still exists in Canada.  However, one critical question on this appeal is the scope of that power.  Common sense dictates that, at a minimum, the honours prerogative includes the power to grant or refuse to grant an honour to a Canadian citizen.  However, in my view the honours prerogative is much broader than that, and is not limited to conferrals the Government of Canada or the Prime Minister might make.  The honours prerogative also includes giving advice on, even advising against, a foreign country’s conferral of an honour on a Canadian citizen.  If that were not so, the three Canadian policy statements on the granting of honours by foreign countries – the 1919 Nickle Resolution, the 1968 Regulation and the 1988 Policy – would be meaningless.  Because these policy statements guide the exercise of Canada’s honours prerogative, the exercise of the prerogative necessarily embraces the communication of these policies to a foreign country considering bestowing a title on a Canadian citizen.  Furthermore, the authority to communicate that policy rests with the nation’s leader, the Prime Minister.

[38]          The policy statements show that Canada has chosen to exercise the honours prerogative differently from England.  As we have seen, Canada calls for foreign countries to obtain the Government of Canada’s approval before granting honours to Canadian citizens.  The underlying rationale of these policies is egalitarianism.  Canada disapproves of ranking its citizens according to status and lineage.  In communicating Canada’s policy to the Queen, in giving her advice on it, right or wrong, in advising against granting a title to one of Canada’s citizens, the Prime Minister was exercising the Crown prerogative relating to honours.

[39]          Mr. Black’s argument appears to rest on the notion that Prime Minister Chrétien’s communication with the Queen was grounded not in the prerogative but was a “personal intervention” motivated by a “personal vendetta”.  He argues that the exercise of a prerogative power is confined to powers and privileges unique to the Crown; powers and privileges enjoyed equally with private persons are not part of the prerogative.  There are two answers to Mr. Black’s argument.  One answer is that the Prime Minister’s authority is always derived from either a federal statute or the prerogative; it is never personal in nature.  See Dicey, supra, at p. 424 and Schreiber v. Canada (Attorney General) (2000), 1 F.C. 427 at 444.  Here, Prime Minister Chrétien did not act under a statute; he therefore acted under the authority of the Crown prerogative.

[40]          The other answer is that even if the Prime Minister does at times act as a private citizen of Canada, he could hardly be said to have been acting as one in this case.  Private citizens cannot ordinarily communicate private advice to the Queen.  Thus, even accepting Mr. Black’s pleading, Prime Minister Chrétien’s intervention with the Queen was not personal.  Whatever his motivation, he was acting as the leader of this country, giving advice or communicating Canada’s policy on honours to a foreign head of state.

[41]          For these reasons, I conclude that it is plain and obvious the Prime Minister was exercising the Crown prerogative relating to the granting of honours.  Because I am satisfied that the Prime Minister was exercising prerogative power relating to the granting of honours, it is unnecessary to consider the alternative basis for the motions judge’s decision, the foreign affairs prerogative, or Mr. Black’s submissions on it.

 

Second issue:  Is the prerogative power exercised by the Prime Minister reviewable in the courts?

[42]          This is the main question on this appeal.  The motions judge concluded at p. 541 that Mr. Black’s complaint about the Prime Minister was not justiciable.  He wrote:  “It is not within the power of the court to decide whether or not the advice of the PM about the prerogative honour to be conferred or denied upon Black was right or wrong.  It is not for the court to give its opinion on the advice tendered by the PM to another country.  These are non-justiciable decisions for which the PM is politically accountable to Parliament and the electorate, not the courts.”

[43]          Mr. Black submits that the motions judge erred in concluding that Prime Minister Chrétien’s exercise of the honours prerogative was not reviewable by the court.  The amended statement of claim pleads that the Prime Minister gave the Queen wrong legal advice, which detrimentally affected Mr. Black.  Mr. Black argues that had the advice been given under a statutory power, it would have been subject to judicial review; it should similarly be subject to judicial review if given under a prerogative power.

[44]          I agree with Mr. Black that the source of the power – statute or prerogative – should not determine whether the action complained of is reviewable.  However, in my view, the action complained of in this case – giving advice to the Queen or communicating to her Canada’s policy on the conferral of an honour on a Canadian citizen – is not justiciable.  Even if the advice was wrong or given carelessly or negligently, it is not reviewable in the courts.  I therefore agree with the motions judge’s conclusion.

[45]          Under the law that existed at least into the 1960s, the court’s power to judicially review the prerogative was very limited.  The court could determine whether a prerogative power existed and, if so, what its scope was, and whether it had been superseded by statute.  However, once a court established the existence and scope of a prerogative power, it could not review how that power was exercised.  See S. DeSmith, H. Woolf and J. Jowell, DeSmith, Woolf & Jowell’s Principles of Judicial Review (London:  Sweet & Maxwell, 1999) at p. 175 and DeKeyser’s Royal Hotel, supra.  The appropriateness or adequacy of the grounds for its exercise, even whether the procedures used were fair, were not reviewable.  The courts insisted that the source of the power – the prerogative – precluded judicial scrutiny of its exercise.  The underlying rationale for this narrow review of the prerogative was that exercises of prerogative power ordinarily raised questions courts were not qualified or competent to answer. 

[46]          Even this narrow view of the court’s role in reviewing the prerogative power now has to be modified in Canada because of the Canadian Charter of Rights and Freedoms.  By s. 32(1)(a), the Charter applies to Parliament and the Government of Canada in respect of all matters within the authority of Parliament.  The Crown prerogative lies within the authority of Parliament.  Therefore, if an individual claims that the exercise of a prerogative power violates that individual’s Charter rights, the court has a duty to decide the claim.  See Operation Dismantle, supra.  However, Mr. Black does not assert any Charter claim.

[47]          Apart from the Charter, the expanding scope of judicial review and of Crown liability make it no longer tenable to hold that the exercise of a prerogative power is insulated from judicial review merely because it is a prerogative and not a statutory power.  The preferable approach is that adopted by the House of Lords in the Civil Service Unions case, supra.  There, the House of Lords emphasized that the controlling consideration in determining whether the exercise of a prerogative power is judicially reviewable is its subject matter, not its source.  If, in the words of Lord Roskill, the subject matter of the prerogative power is “amenable to the judicial process”, it is reviewable; if not, it is not reviewable.  Lord Roskill provided content to this subject matter test of reviewability by explaining that the exercise of the prerogative will be amenable to the judicial process if it affects the rights of individuals.  Again, in his words at p. 417:

… If the executive in pursuance of the statutory power does an act affecting the rights of the citizen, it is beyond question that in principle the manner of the exercise of that power may today be challenged on one or more of the three grounds which I have mentioned earlier in this speech.  If the executive instead of acting under a statutory power acts under a prerogative power and in particular a prerogative power delegated to the respondent under article 4 of the Order in Council of 1982, so as to affect the rights of the citizen, I am unable to see, subject to what I shall say later, that there is any logical reason why the fact that the source of the power is the prerogative and not statute should today deprive the citizen of that right of challenge to the manner of its exercise which he would possess were the source of the power statutory.  In either case the act in question is the act of the executive. …

[48]          In his speech in that case, Lord Diplock discussed two ways in which the exercise of a prerogative power may affect the rights of an individual:  by altering the individual’s legal rights and obligations or by affecting the individual’s legitimate expectations.  He stated at p. 408:

To qualify as a subject for judicial review the decision must have consequences which affect some person (or body of persons) other than the decision-maker, although it may affect him too.  It must affect such other person either:

(a) by altering rights or obligations of that person which are enforceable by or against him in private law; or

(b) by depriving him of some benefit or advantage which either (i) he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there has been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or (ii) he has received assurance from the decision-maker [that the benefit or advantage] will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn. …

[49]          I agree with the House of Lords’ that the proper test for the review of the exercise of the prerogative is the subject matter test.  It is that test that I will endeavour to apply in this case. 

[50]          At the core of the subject matter test is the notion of justiciability.  The notion of justiciability is concerned with the appropriateness of  courts deciding a particular issue, or instead deferring to other decision-making institutions like Parliament.  See Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources), [1989] 2 S.C.R. 49; Thorne’s Hardware Limited v. The Queen, [1983] 1 S.C.R. 106.  Only those exercises of the prerogative that are justiciable are reviewable.  The court must decide “whether the question is purely political in nature and should, therefore, be determined in another forum or whether it has a sufficient legal component to warrant the intervention of the judicial branch”.  Reference re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525 at 545.

[51]          Under the test set out by the House of Lords, the exercise of the prerogative will be justiciable, or amenable to the judicial process, if its subject matter affects the rights or legitimate expectations of an individual.  Where the rights or legitimate expectations of an individual are affected, the court is both competent and qualified to judicially review the exercise of the prerogative.

[52]          Thus, the basic question in this case is whether the Prime Minister’s exercise of the honours prerogative affected a right or legitimate expectation enjoyed by Mr. Black and is therefore judicially reviewable.  To put this question in context, I will briefly discuss prerogative powers that lie at the opposite ends of the spectrum of judicial reviewability.  At one end of the spectrum lie executive decisions to sign a treaty or to declare war.  These are matters of “high policy”.  R. v. Secretary of State for Foreign and Commonwealth Affairs, ex parte Everett, [1989] 1 All E.R. 655 at 660, per Taylor L.J.  Where matters of high policy are concerned, public policy and public interest considerations far outweigh the rights of individuals or their legitimate expectations.  In my view, apart from Charter claims, these decisions are not judicially reviewable.

[53]          At the other end of the spectrum lie decisions like the refusal of a passport or the exercise of mercy.  The power to grant or withhold a passport continues to be a prerogative power.  A passport is the property of the Government of Canada, and no person, strictly speaking, has a legal right to one.  However, common sense dictates that a refusal to issue a passport for improper reasons or without affording the applicant procedural fairness should be judicially reviewable.  This was the position taken by the English Court of Appeal in R. v. Secretary of State for Foreign and Commonwealth Affairs, ex parte Everett, supra.  Two passages from that case are worth highlighting.  O’Connor L.J. wrote at p. 658:

The judge held that the issue of a passport fell into an entirely different category.  That seems common sense.  It is a familiar document to all citizens who travel in the world and it would seem obvious to me that the exercise of the prerogative, because there is no doubt that passports are issued under the royal prerogative in the discretion of the Secretary of State, is an area where common sense tells one that, if for some reason a passport is wrongly refused for a bad reason, the court should be able to inquire into it.  I would reject the submission made on behalf of the Secretary of State that the judge was wrong to review the case.

 

And Taylor L.J. wrote at p. 660:

 

… At the top of the scale of executive functions under the prerogative are matters of high policy, of which examples were given by their Lordships:  making treaties, making law, dissolving Parliament, mobilising the armed forces.  Clearly those matters, and no doubt a number of others, are not justiciable.  But the grant or refusal of a passport is in a quite different category.  It is a matter of administrative decision, affecting the rights of individuals and their freedom of travel.  It raises issues which are just as justiciable as, for example, the issues arising in immigration cases. …

[54]          In today’s world, the granting of a passport is not a favour bestowed on a citizen by the state.  It is not a privilege or a luxury but a necessity.  Possession of a passport offers citizens the freedom to travel and to earn a livelihood in the global economy.  In Canada, the refusal to issue a passport brings into play Charter considerations; the guarantee of mobility under s. 6 and perhaps even the right to liberty under s. 7.  In my view, the improper refusal of a passport should, as the English courts have held, be judicially reviewable. 

[55]          A similar view might also be taken of the exercise of the prerogative of mercy, still preserved in Canada by s. 749 of the Criminal Code.  Though on one view mercy begins where legal rights end, I think the prerogative of mercy should be looked at as more than a royal favour.  The existence of this prerogative is the ultimate safeguard against mistakes in the criminal justice system and thus in some cases the Government’s refusal to exercise it may be judicially reviewable.  That was the view taken by the English Queen’s Bench Division in Re Secretary of State for the Home Department, ex parte Bentley, [1993] 4 All E.R. 442.  There, the court held that the Home Secretary’s decision not to grant a posthumous conditional pardon was judicially reviewable.

[56]          Against the context of these cases I return to the issue raised in this appeal – whether the action of the Prime Minister affected a right or legitimate expectation enjoyed by Mr. Black and is therefore judicially reviewable.  This issue turns on how the subject matter of Prime Minister Chrétien’s exercise of the honours prerogative is characterized.  Mr. Black characterizes the subject matter of the Prime Minister’s actions in one of two ways:  first, as giving unsolicited and wrong legal advice to the Queen, which detrimentally affected Mr. Black; or second, as an administrative decision involving the improper interpretation and application of Canadian policy, the Nickle Resolution, to the granting of an honour.  See also Hogg and Monahan, supra, at p. 20.

[57]          In my opinion, these are not accurate characterizations of Prime Minister Chrétien’s actions as pleaded in the amended statement of claim.  Prime Minister Chrétien was not giving legal advice or making an administrative decision.  Focussing on wrong legal advice or the improper interpretation of a policy misses what this case is about.  As I see it the action of Prime Minister Chrétien complained of by Mr. Black is his giving advice to the Queen about the conferral of an honour on a Canadian citizen.  The Prime Minister communicated Canada’s policy on honours to the Queen and advised her against conferring an honour on Mr. Black.

[58]          So characterized, it is plain and obvious that the Prime Minister’s exercise of the honours prerogative is not judicially reviewable.  Indeed, in the Civil Service Unions case, Lord Roskill listed a number of exercises of the prerogative power whose subject matters were by their very nature not justiciable.  Included in the list was the grant of honours.  He wrote, in a passage I have already referred to, at p. 418:

But I do not think that that right of challenge can be unqualified.  It must, I think, depend upon the subject matter of the prerogative power which is exercised.  Many examples were given during the argument of prerogative powers which as at present advised I do not think could properly be made the subject of judicial review.  Prerogative powers such as those relating to the making of treaties, the defence of the realm, the prerogative of mercy, the grant of honours, the dissolution of Parliament and the appointment of ministers as well as others are not, I think, susceptible to judicial review because their nature and subject matter are such as not to be amenable to the judicial process.  The courts are not the place wherein to determine whether a treaty should be concluded or the armed forces disposed in a particular manner of Parliament dissolved on one date rather than another.  [Emphasis added.]

[59]          Lord Roskill’s opinion on the grant of honours was obiter in that case, and regardless of course, is not binding on this court.  Moreover, including the grant of honours in a list of non-reviewable exercises of the prerogative has been criticized by some as overly broad.  See Hogg and Monahan, supra, at p. 15 and Hadfield, supra, at p. 217.  However, I agree with Lord Roskill.  Holding that the exercise of the honours prerogative is always beyond the review of courts is not a departure from the subject matter test espoused by the House of Lords in the Civil Service Unions case.  Rather, it is faithful to that test.  See also Cox, supra, at p. 19.

[60]          The refusal to grant an honour is far removed from the refusal to grant a passport or a pardon, where important individual interests are at stake.  Unlike the refusal of a peerage, the refusal of a passport or a pardon has real adverse consequences for the person affected.  Here, no important individual interests are at stake.  Mr. Black’s rights were not affected, however broadly “rights” are construed.  No Canadian citizen has a right to an honour.

[61]          And no Canadian citizen can have a legitimate expectation of receiving an honour.  In Canada the doctrine of legitimate expectations informs the duty of procedural fairness; it gives no substantive rights.  Baker v. Canada (Minister of Citizenship and Immigration) (1999), 174 D.L.R. (4th) 193 at 212-14 (S.C.C.).  See also Civil Service Unions, per Lord Diplock at p. 408-9.  Here Mr. Black does not assert that he was denied procedural fairness.  Indeed, he had no procedural rights.

[62]          But even if the doctrine of legitimate expectations could give substantive rights, neither Mr. Black nor any other Canadian citizen can claim a legitimate expectation of receiving an honour.  The receipt of an honour lies entirely within the discretion of the conferring body.  The conferral of the honour at issue in this case, a British peerage, is a discretionary favour bestowed by the Queen.  It engages no liberty, no property, no economic interests.  It enjoys no procedural protection.  It does not have a sufficient legal component to warrant the court’s intervention.  Instead, it involves “moral and political considerations which it is not within the province of the courts to assess”.  See Operation Dismantle, supra, per Dickson J. at p. 465.

[63]          In other words, the discretion to confer or refuse to confer an honour is the kind of discretion that is not reviewable by the court.  In this case, the court has even less reason to intervene because the decision whether to confer a British peerage on Mr. Black rests not with Prime Minister Chrétien, but with the Queen.  At its highest, all the Prime Minister could do was give the Queen advice not to confer a peerage on Mr. Black.

[64]          For these reasons, I agree with the motions judge that Prime Minister Chrétien’s exercise of the honours prerogative by giving advice to the Queen about granting Mr. Black’s peerage is not justiciable and therefore not judicially reviewable.

[65]          Once Prime Minister Chrétien’s exercise of the honours prerogative is found to be beyond review by the courts, how the Prime Minister exercised the prerogative is also beyond review.  Even if the advice was wrong or careless or negligent, even if his motives were questionable, they cannot be challenged by judicial review.  To paraphrase Dickson J. in Thorne’s Hardware, supra, at p. 112:  “It is neither our duty nor our right” to investigate the Prime Minister’s motives or his reasons for his advice.  Therefore, the declaratory relief and the tort claims asserted by Mr. Black cannot succeed.  For these reasons, I would dismiss his appeal.

 

Third issue:  Does the Superior Court have jurisdiction to grant declaratory relief against the Prime Minister and the Government of Canada?

[66]          Although raised only on the cross-appeal, the Superior Court’s jurisdiction over Mr. Black’s claim is a threshold issue.  For that reason, and because it was fully argued, I will consider it in these reasons.

[67]          Under the recent amendments to the Federal Court Act and the Crown Liability and Proceedings Act, the general rule is that the Federal Court and the courts of the provinces have concurrent jurisdiction to entertain claims for relief against the Crown.  In their cross-appeal, however, the Prime Minister and the Government of Canada submit that even if Mr. Black’s claims are justiciable, the Superior Court does not have jurisdiction to grant the declaratory relief he seeks because that jurisdiction rests exclusively with the Federal Court (Trial Division).  The respondents ask us to dismiss Mr. Black’s claims for declaratory relief under Rule 21.01(1)(3)(a) of the Rules of Civil Procedure.  This Rule permits a court to dismiss an action on the ground that “the court has no jurisdiction over the subject matter of the action”.  The motions judge concluded that the Superior Court had jurisdiction to entertain the claim against the Prime Minister.  He also held that the Superior Court could deal with the claim against the Government of Canada because for the purpose of jurisdiction it was in the same position as the Prime Minister.

[68]          The respondents rely on s. 18(1) of the Federal Court Act, which gives the Trial Division of the Federal Court exclusive original jurisdiction to grant declaratory relief against any “federal board, commission or other tribunal”:

18(1)            Subject to s. 28, the Trial Division has exclusive original jurisdiction

       (a)     to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal; and

                    (b)     to hear and determine any application or other proceeding for relief in the nature of relief contemplated by paragraph (a), including any proceeding brought against the Attorney General of Canada, to obtain relief against a federal board, commission or other tribunal.

            …

 

  (3)            The remedies provided for in subsections (1) and (2) may be obtained only on an application for judicial review made under s.18(1).

Thus, the narrow question on this cross-appeal is whether the Prime Minister or the Government of Canada was acting as a federal board, commission or other tribunal. 

[69]          When the Federal Court Act was first enacted, the phrase “federal board, commission or other tribunal” was defined in s. 2 to mean a body exercising jurisdiction or powers conferred by or under an Act of Parliament:

… any body or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament, other than any such body constituted or established by or under a law or a province or any such person or persons appointed under or in accordance with a law of a province or under section 96 of the Constitution Act, 1867.

However, in 1990, this definition was amended to include the exercise of power conferred by or under an order made pursuant to a prerogative of the Crown.  Section 2 was replaced by a new definition in s. 2(1), which reads:

“federal board, commission or other tribunal” … means any body or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made pursuant to a prerogative of the Crown, other than any such body constituted or established by or under a law or a province or any such person or persons appointed under or in accordance with a law of a province or under section 96 of the Constitution Act, 1867.  [Emphasis added.]

[70]          The respondents acknowledge that the actions complained of by Mr. Black were not performed “by or under an Act of Parliament”.  Even if Prime Minister Chrétien acted under the 1919 Nickle Resolution or the 1968 Regulation or the 1988 Policy, none of these policy statements gives powers conferred by or under a federal statute.  Therefore, the Federal Court has exclusive jurisdiction only if Prime Minister Chrétien exercised powers conferred “by or under an order made pursuant to a prerogative of the Crown”.  LeSage C.J.S.C. concluded, and the respondents accept, that Prime Minister Chrétien did not make any order.  What he did, according to the amended statement of claim, was intervene with the Queen to block Mr. Black’s peerage or advise the Queen not to appoint Mr. Black.  There was no “order”.

[71]          However, the phrase “by or under an order made pursuant to a prerogative of the Crown” admits of two possible interpretations.  Under the first interpretation, advanced by Mr. Black and accepted by the motions judge, “an order” modifies both “by” and “under”.  Under this interpretation, the Federal Court (Trial Division) would have exclusive jurisdiction if the Prime Minister exercised powers conferred by an order made pursuant to a prerogative of the Crown or exercised powers conferred under an order made pursuant to a prerogative of the Crown.  As Prime Minister Chrétien did neither, under this interpretation the Superior Court has jurisdiction to entertain Mr. Black’s claim for declaratory relief.

[72]          Under the second interpretation, advanced by the respondents, “an order” modifies “under” but not “by”.  Under this interpretation, the Federal Court would have exclusive jurisdiction if the respondents exercised powers conferred by a prerogative of the Crown or exercised powers conferred under an order made pursuant to a prerogative of the Crown.  As the Prime Minister exercised a prerogative power, under this interpretation only the Federal Court (Trial Division) would have jurisdiction to grant declaratory relief, at least against him. 

[73]          The respondents submit that their interpretation is more plausible.  They argue that the motions judge’s interpretation of the Act is contrary to Parliament’s intention to make the Federal Court the only forum for review of federal administrative action.  They point out that under the motions judge’s interpretation, if the prerogative were exercised pursuant to an order, it could only be reviewed by the Federal Court; but if the prerogative were exercised directly, that is, without an order, it could be reviewed by the Superior Court.  The respondents contend that such a result is anomalous.  And they point out that judicial review of administrative action does not depend on the existence of an order.

[74]          One possible answer to the respondents’ argument is that by defining “federal board, commission or other tribunal” in the way it did, Parliament intended that the exercise of the prerogative be immune from judicial review.  However, accepting – as I have – that some prerogative powers are reviewable, the respondents’ argument must yield to the wording and structure of s. 2(1) of the statute.  A fair reading of s. 2(1) suggests that “an order made pursuant to” modifies both “by” and “under”.  This interpretation is supported by the parallel structure of s. 2(1) – “by or under an Act of Parliament” and “by or under an order made pursuant to a prerogative of the Crown”.  The former phrase must mean by an Act of Parliament or under an Act of Parliament; similarly, the latter phrase must mean by an order made pursuant to a prerogative of the Crown or under an order made pursuant to a prerogative of the Crown.

[75]          Even if the respondents’ interpretation is plausible, it collides with the principle that clear and explicit statutory language is required to oust the jurisdiction of provincial superior courts, which, unlike the Federal Court, are courts of inherent general jurisdiction.  The Supreme Court of Canada articulated this principle in Ordon Estate v. Grail, [1998] 3 S.C.R. 437, where Iacobucci and Major JJ. wrote at p. 474:

As a statutory court, the Federal Court of Canada has no jurisdiction except that assigned to it by statute.  In light of the inherent general jurisdiction of the provincial superior courts, Parliament must use express statutory language where it intends to assign jurisdiction to the Federal Court.  In particular, it is well established that the complete ouster of jurisdiction from the provincial superior courts in favour of vesting exclusive jurisdiction in a statutory court (rather than simply concurrent jurisdiction with the superior courts) requires clear and explicit statutory wording to this effect.  This latter principle finds early expression in the judgment in Peacock v. Bell (1677), 1 Wms. Saund. 73, 85 E.R. 84, at pp. 87-88:

And the rule for jurisdiction is, that nothing shall be intended to be out of the jurisdiction of a Superior Court, but that which specially appears to be so; and, on the contrary, nothing shall be intended to be within the jurisdiction of an Inferior Court but that which is so expressly alleged.

This basic principle continues to be applied up to the present day …

Section 18(1) of the Federal Court Act does not clearly and explicitly oust the jurisdiction of the Superior Court to grant declaratory relief in respect of the Prime Minister’s exercise of the honours prerogative.

[76]          Put differently, if Parliament has left a “gap” in its grant of statutory jurisdiction to the Federal Court, the institutional and constitutional position of provincial superior courts warrants granting them this residual jurisdiction over federal matters.  See Canada (Human Rights Commission) v. Canadian Liberty Net, [1998] 1 S.C.R. 626.  I therefore conclude that absent an order, the exercise of a prerogative power may be reviewable in the Superior Court.  Thus, I agree with the motions judge and would dismiss the cross-appeal.

E.     CONCLUSION

[77]          I would dismiss the appeal with costs.  I would also dismiss the cross-appeal with costs.  I conclude by thanking counsel for their submissions.  This case was exceptionally well-argued by both sides.

(signed) “John Laskin J.A.”

(signed) “I agree S. T. Goudge J.A.”

(signed) “I agree K. Feldman J.A.”

Released:  May 18, 2001

                        “J.L.”

 


[1] The 1968 Regulation of the Secretary of State (Respecting the Acceptance and Wearing by Canadians of Commonwealth and Foreign Orders, Decorations and Medals).

[2] The 1988 Policy of the Clerk of the Privy Council (Respecting the Awarding of an Order, Decoration and Medal by a Commonwealth or a Foreign Government).