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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.
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