T-2541-90
Ian MacLeod, Ann McLaughlin and Southam Inc.
(Plaintiffs)
v.
General John de Chastelain, Chief of the Defence
Staff of the Canadian Armed Forces, Lieutenant
General Kent Foster, Brigadier General Armand
Roy and the Attorney General of Canada
(Defendants)
T-2543-90
The Corporation of the Canadian Civil Liberties
Association and Alan Borovoy (Plaintiffs)
v.
General John De Chastelain, Lieutenant General
Kent Foster and Brigadier General Armand Roy
(Defendants)
INDEXED AS: MACLEOD V. CANADA (CHIEF OF DEFENCE
STAFF, ARMED FORCES) (T.D.)
Trial Division, Joyal J.—Ottawa, September 26
and October 26, 1990.
Constitutional law — Charter of Rights — Fundamental
freedoms — Armed Forces' policy of treating journalists
during siege at Indian reservation same as natives not violating
freedom of press — Freedom of press not conferring special
status on media employees who deserve same treatment as
public when voluntarily placing selves in dangerous situations.
Judicial review — Equitable remedies — Injunctions —
Armed Forces stopping separate delivery of provisions to
journalists during siege at Indian reservation — Journalists
treated same as besieged — Reference to cases holding press
to receive same treatment as general public — Defendants'
policy not preventing journalists from filing stories — No
serious issue to be tried.
In the summer of 1990, Indians on a reservation in Quebec
set up barricades in protest against the development of a golf
course on land in which they claimed an interest. The Quebec
provincial police force was unable to cope with the situation
and the Canadian Armed Forces had to be called in. These
were applications for interlocutory injunctions by journalists
who had joined some fifty natives under siege in a detoxifica
tion centre at the Mohawk Indian Reserve near Oka. At first,
the journalists received food and supplies directly and separate
ly from that provided to the natives. Subsequently, the Armed
Forces decreed that all supplies were to be delivered once a day
for distribution among all the occupants. The journalists argued
that the refusal to permit the separate delivery of food and
supplies to them (1) infringed upon their right to the freedoms
of expression and the press guaranteed by Charter, paragraph
2(b) and (2) infringed their right to life, liberty and security of
the person guaranteed by Charter, section 7 in that they were
forced to rely on the Indians' goodwill regarding the distribu
tion of food and that they were not getting their fair share. This
reliance allegedly threatened their objectivity and indepen
dence. The denial of the tools of their trade made it difficult for
them to file stories. The defendants argued that the exigencies
of the siege had nothing to do with the presence of the
journalists and that they had no right to be treated differently
from the natives. The journalists were there on sufferance
because it suited the Indians' purposes. Furthermore, the adop
tion of stricter measures notwithstanding, the journalists had
continued to file their stories. The issues were whether an
interlocutory injunction should issue and whether the refusal to
allow delivery of tools of the trade and separate delivery of food
and supplies to the journalists violated freedom of the press.
Held, the applications should be dismissed.
The plaintiffs failed to demonstrate a serious issue to be
tried. They failed to establish that based on the Charter right to
freedom of the press, the defendants owed them a special duty
of care. They remained in the compound voluntarily despite
increasingly difficult conditions. The defendants' policy was to
treat all those present indiscriminately with respect to the
supply of food and necessities. Recent American and Canadian
cases have held that the press is to be treated the same as the
general public. Freedom of the press as a concept does not
confer special status on media people. If a journalist puts
himself in a dangerous situation to gather news, he has no
greater right to protection than his neighbour. There is no
principle of law granting him immunity from the consequences
of his conduct. The privilege, granted at the outset, of having
separate deliveries did not constitute a right which should be
encapsulated with the guaranteed right to freedom of the press.
In any event, the defendants' stricter policy regarding food
deliveries did not prevent the journalists from conveying infor
mation to their papers.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
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], ss. 2(b), 7.
CASES JUDICIALLY CONSIDERED
APPLIED:
Canadian Newspaper Co. Ltd. v. Isaac (1988), 63 O.R.
(2d) 698; 48 D.L.R. (4th) 751; 27 O.A.C. 229 (Div. Ct.);
Pell v. Procunier, 417 US 817; 94 S Ct 2800; 41 L Ed 2d
495 (1974); Branzburg y Hayes, 408 US 665; 92 S Ct
2646; 33 L Ed 2d 626 (1972); Saxbe y Washington Post
Co., 417 US 843; 94S Ct 2811; 41 L Ed 2d 514 (1974);
Manitoba (Attorney General) v. Metropolitan Stores
Ltd., [1987] 1 S.C.R. 110; (1987), 38 D.L.R. (4th) 321;
[1987] 3 W.W.R. 1; 46 Man. R. (2d) 241; 25 Admin.
L.R. 20; 87 CLLC 13,015; 18 C.P.C. (2d) 273; 73 N.R.
341.
REFERRED TO;
American Cyanamid Co. v. Ethicon Ltd., [1975] A.C.
396 (H.L.); Turbo Resources Ltd. v. Petro Canada Inc.,
[1989] 2 F.C. 451; (1989), 22 C.I.P.R. 172; 24 C.P.R.
(3d) 1; 91 N.R. 341 (C.A.); N.W.L. Ltd. v. Woods,
[1979] 1 W.L.R. 1294 (H.L.).
COUNSEL:
Richard G. Dearden, Neil Wilson, Alan D.
Reid and Milos Barutciski for plaintiffs.
Claude Joyal and Mario Dutil for defend
ants.
SOLICITORS:
Gowling, Strathy & Henderson, Ottawa, for
plaintiffs.
Deputy Attorney General of Canada for
defendants.
The following are the reasons for order ren
dered in English by
JOYAL J.:
PREAMBLE
The issues raised in these applications were
heard on September 26, 1990. By the time the
proceedings had concluded, the issues had, in a
sense, become moot. I was nevertheless asked to
rule on them. I did so rule and delivered brief oral
reasons. What follows are my more detailed writ
ten reasons for the disposition I made of the case.
These reasons are written in the context of the
circumstances as they existed at the date of
hearing.
THE PARTIES
The plaintiffs Ian MacLeod and Ann McLaugh-
lin are journalists for The Ottawa Citizen and The
/Montreal] Gazette respectively. The plaintiff
Southam Inc. owns both newspapers. These plain
tiffs apply for interlocutory relief on terms which
will be explored later in these reasons.
Concurrently, the plaintiffs, Corporation of
Civil Liberties Association and its counsel Alan
Borovoy, apply for similar relief. The issues being
the same and no objection being taken as to stand
ing of the last-named plaintiffs, the two applica
tions were heard together on common evidence.
The defendants, as their several titles imply, are
senior commanders of the Canadian Armed
Forces. The Attorney General of Canada is also
named for good measure.
THE BACKGROUND
The applications arise as a result of events
which have occurred at Mohawk Indian Reserves
near Oka and Châteauguay, Quebec during the
last three months. On July 11, 1990, the Provincial
Police force, the Sûreté du Québec, unsuccessfully
tried to dismantle a barricade near Oka. The
barricade had been erected by Mohawks in order
to protest and to prevent the proposed development
of a golf course by the Municipality of Oka on
land to which the Mohawks claimed title. To
maintain this barricade, self-defined armed Warri
ors joined the local Mohawk Band. Eventually, the
Province of Quebec called in the services of the
Canadian Armed Forces to dismantle this bar
ricade, as well as several other barricades which
had been erected by the natives and Warriors at
Oka and Châteauguay. The Canadian Armed
Forces began to dismantle the barricades on
August 27, 1990 and by September 3, they had
gained control of the final Mohawk barricade at
Oka. On that same date, some fifty Indians,
including Warriors, men, women and children,
retreated into a detoxification centre at the
Kanesatake Reserve at Oka. The Canadian Armed
Forces surrounded the centre and erected a razor
wire perimeter. From that date on, there was a
veritable standoff between the Warriors and
natives within the perimeter and the besieging
Canadian Armed Forces. Women and children in
the compound made it imperative that armed
assault be avoided if at all possible. Several jour-
nalists, among them the plaintiffs MacLeod and
McLaughlin, stayed at the treatment centre and
eleven of them are still behind the perimeter with
the Mohawks there. It is the situation of those
journalists which forms the object of the present
applications for interlocutory injunctions.
THE PLAINTIFFS' POSITION
The policy of the Canadian Armed Forces has
been to break the impasse and accordingly, secu
rity measures were taken to isolate the people
within the compound and bring the siege to an
end. Given the presence of women and children,
however, the defendants allowed food and other
essential supplies to pass through the perimeter,
albeit in a controlled fashion. There were obvious
humanitarian and compassionate grounds for that
policy. According to the plaintiffs, up until Sep-
tember 11, 1990, the defendants allowed the deliv
ery of food and supplies to the journalists directly
and separately from the food and supplies which
were being delivered to the natives inside the
centre. However, on September 12, the delivery of
supplies, such as notepads, batteries, tape and film,
was stopped. Then, on September 14, 1990, the
defendants decided to halt separate delivery of
food and other necessaries of life to the journalists
inside the treatment centre. Instead, deliveries of
food, clothing and other supplies were to be
ordered in bulk by "hot line" and to be delivered
once a day to the compound to be distributed
among all of the occupants, including the
journalists.
The plaintiffs argue that the defendants' refusal
to permit separate delivery of food and supplies to
the journalists inside the centre infringes upon the
latter's right to freedom of expression and freedom
of the press, as is guaranteed by paragraph 2(b) of
the Canadian Charter of Rights and Freedoms.'
Subsidiarily, the plaintiff Southam Inc. claims
that the defendants' actions infringe the plaintiffs'
right to life, liberty and security of the person, as is
guaranteed by section 7 of the Canadian Charter.
More specifically, the plaintiffs argue that the
journalists are being forced to rely upon the good
will of the Warriors inside the compound with
respect to the proper distribution of food. This
reliance threatens their objectivity and indepen
dence in reporting on matters as they arise at Oka.
The plaintiffs also allege that the food being
delivered is insufficient to feed the number of
people there. As a result, the journalists are receiv
ing only leftovers from the natives and their health
is thus being jeopardized. Furthermore, the
Canadian Armed Forces have denied the plaintiffs
access to the tools of their trade, so that it has
become very difficult for the journalists to file
their stories to their publishers. As a result, the
plaintiffs believe that their basic freedoms and
rights as guaranteed by the Charter are being
infringed.
THE DEFENDANTS' POSITION
The defendants argue that, whatever trials and
tribulations might be visited on the journalists, the
exigencies of the siege have nothing specifically to
do with the presence of these journalists in the
compound. The defendants' policy is to bring the
standoff to an end and to leave no alternative to
the Warriors and other natives but to evacuate the
compound.
The defendants are fettered in achieving this
purpose by the presence of women and children in
the compound. To take by assault or storm would
put these people at grave risk and would certainly
be counter to the defendants' objective of resolving
the conflict peacefully.
Furthermore, humanitarian and compassionate
grounds preclude the defendants from simply
starving the insurgents out. Again the presence of
women and children, effectively controlled by
' 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].
armed Warriors, imposes this restriction on the
defendants.
The defendants see no reason why the journal
ists in the compound should be treated differently
from the natives. The journalists are there because
it suits the Warriors' purpose to have them there.
The journalists' conditions in terms of food and
necessaries might be difficult to bear but if food is
to be provided on humanitarian grounds, there is
no reason why there should be special treatment
for the journalists.
The defendants further state that since the
adoption of stricter measures on September 11 and
September 14, the journalists have continued to
file their stories to the media. It cannot therefore
be argued that the actions of the defendants result
in an embargo on news stories to the outside world
giving rise to a Charter challenge.
THE ISSUE
The issue, therefore, is whether the refusal of
the defendants and of those under their control to
allow separate delivery of food and other supplies
to the journalists within the treatment centre, as
well as their refusal to allow delivery of additional
film, tape, batteries and other tools of the trade to
these journalists, violates the freedom of the press
as is guaranteed by paragraph 2(b) of the Canadi-
an Charter of Rights and Freedoms. The narrower
issue is whether, in the light of all the circum
stances of the case, an interlocutory injunction
should issue at this time.
It is trite law that in order to succeed in their
applications for an interlocutory injunction, the
plaintiffs must demonstrate that:
(a) there is a serious question to be tried;
(b) the plaintiffs will suffer irreparable harm
unless the injunction is granted; and
(c) the balance of convenience favours the
plaintiffs. 2
A final criteria, which was formulated by Lord
Diplock in N.W.L. Ltd. v. Woods,' is that the
issuance of the interlocutory injunction must not
have the effect of finally disposing of the action
before the trial takes place.
THE FINDINGS
On the basic facts and circumstances giving rise
to these proceedings, there is no serious conflict in
the evidence submitted by the parties. In making
findings, therefore, it should not be necessary for
me to refer to any specific piece of evidence or to
attribute such evidence to any one of the several
parties.
Admittedly, the role normally exercised by jour
nalists is one which is fundamental to a free and
democratic society. This is the role which the
plaintiffs have voluntarily undertaken by main
taining their vigil in the compound and by continu
ally filing their stories. In so doing, the plaintiffs
are exercising their right to stay there in spite of
the fact that as the critical standoff situation
evolves at the compound, the conditions which
they have to bear become increasingly onerous and
difficult.
Yet these are conditions which are not the result
of coercion, of imprisonment or of detention,
lawful or otherwise. On the contrary, the defend
ants have repeatedly invited the journalists to leave
the compound and have not hidden their displeas
ure at their continued presence there. In the con
text of the standoff itself, the Court would be
loathe to express any views on the propriety or
impropriety of the defendants' attitude towards
these journalists. There is a limit to the kind of
curial arrogance which might justify critical com
ment. I can only observe that the standoff has
lasted 70 days and, so far, the measures taken by
the defendants have not provoked serious violence.
Until September 11, 1990, both the natives and
the plaintiffs were given access to necessaries of
American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396
(H.L.); Turbo Resources Ltd. v. Petro Canada Inc., [1989] 2
F.C.451 (C.A.).
3 [1979] 1 W.L.R. 1294 (H.L.).
life. The plaintiffs were furnished with these neces
saries directly by their employer. From that date
onward, however, the defendants decreed that
deliveries of food, clothing, medical supplies and
other necessaries would be ordered on the "hot
line" and delivered once a day to the compound to
be shared by all the occupants, including the
journalists.
The delivery of these necessaries is obviously a
humanitarian gesture in regard to the women and
children in the compound. Of necessity, however,
that humanitarian gesture also enures to the ben
efit of the armed Warriors, and unless the plain
tiffs be treated with less than minimum hospital
ity, to the benefit of the plaintiffs as well. The
plaintiffs concede that at all times their presence
in the compound is on sufferance. They are there
only so long as the Warriors want them there and
only so long as the Warriors find the presence of
the journalists to be to their advantage. The War
riors, in my view, are not suffering the plaintiffs'
presence in the centre on the ground that by doing
otherwise, they would violate paragraph 2(b) of
the Charter.
It is clear that the defendants' policy is to treat
the journalists, the Warriors and the women and
children indiscriminately with respect to the
supply of food and necessaries. As the plaintiffs
state, they are not now getting their fair share of
necessaries and are denied the technical supplies
required of their trade. This, they suggest,
amounts to an oblique or indirect method of sti
fling access to information from the compound and
is tantamount to an actual prohibition by the
defendants of the coverage of events occurring at
Oka and as such constitutes a denial of Charter
rights.
The question may now be expressed as to wheth
er or not the policy imposed by the defendants on
the plaintiffs raises a triable issue justifying the
intervention of the Court by way of interlocutory
relief at this stage of the proceedings. In assisting
in such determination, consideration must of
necessity be given to some judicial pronounce
ments dealing with such fundamental principles of
Canadian law as freedom of the press and freedom
of information.
THE LAW
In Canadian Newspaper Co. Ltd. v. Isaac, 4 a
coroner allowed a witness to testify at an inquest
anonymously. Canadian Newspaper Co. brought
an application for a declaration that the coroner's
order violated paragraph 2(b) of the Canadian
Charter and to require disclosure of the name of
the witness. Mr. Justice Campbell decided that
there was some basis in law on which the coroner
could have made the order and that no public
interest would be served by requiring that the
name of the witness be published. With respect to
the rights of the press, he stated [at pages
704-705]:
The right of the press under Charter s. 2(b) is no greater
than the right of the public to know what goes on in the courts
and in public hearings such as inquests.
The right to publish what has already been compelled and
disclosed is different from the right to compel a disclosure that
has not been made to the trier of fact. The Charter does not
give the press or the public the right to insist that the coroner
compel into evidence any fact. The press has a right to report
the inquest, not to control its conduct.
I conclude therefore that there has been no infringement of
the Charter guarantee of freedom of the press.
Although Mr. Justice Hughes and Mr. Justice
Austin did not agree that the coroner's order could
be justified in law, they too felt that the applica
tion should be dismissed on the ground that to
require disclosure of the name of the witness, after
he had acted upon the promise of anonymity,
would bring the administration of justice into
disrepute.
In that decision, therefore, the press was held to
have no greater right than other members of the
public to compel disclosure of information.
Counsel for the defendants also brought to my
attention two decisions of the United States
Supreme Court which more clearly illustrate the
principle that the press is to be treated on an equal
footing with other members of the public in
general.
The first of those cases is Pell v. Procunier, 5
where prison inmates and journalists challenged
4 (1988), 63 O.R. (2d) 698 (Div. Ct.).
5 4l7 US 817 (1974).
the constitutionality of a prison regulation prohib
iting face-to-face interviews with inmates specifi
cally chosen by the media. It also prohibited inter
views which an inmate initiated himself. The
majority of the Supreme Court held that the regu
lation did not violate either the inmates' First
Amendment rights or the right of the media to
freedom of the press.
Justice Stewart, on behalf of the majority of the
Court, cited from an earlier Supreme Court deci
sion, Branzburg y Hayes, 6 which had indicated
that the press did not have a constitutional right of
special access to information not available to the
general public and that:
Newsmen have no constitutional right of access to the scenes of
crime or disaster when the general public is excluded ....'
The learned Justice then applied that principle
to the facts before him:
The First and Fourteenth Amendments bar government from
interfering in any way with a free press. The Constitution does
not, however, require government to accord the press special
access to information not shared by members of the public
generally. It is one thing to say that a journalist is free to seek
out sources of information not available to members of the
general public, that he is entitled to some constitutional protec
tion of the confidentiality of such sources, cf. Branzburg v.
Hayes, supra, and that government cannot restrain the publica
tion of news emanating from such sources. Cf. New York
Times Co. v. United States, supra. It is quite another thing to
suggest that the Constitution imposes upon government the
affirmative duty to make available to journalists sources of
information not available to members of the public generally.
That proposition finds no support in the words of the Constitu
tion or in any decision of this Court. Accordingly, since
§ 415.071 does not deny the press access to sources of informa
tion available to members of the general public, we hold that it
does not abridge the protections that the First and Fourteenth
Amendments guarantee. 8 [The underlining is my own.]
The issue was much the same in Saxbe y Wash-
ington Post Co., 9 where a policy statement prohib
ited face-to-face interviews by newsmen with
individually designated prison inmates. Mr. Justice
Stewart, again speaking for a majority of the
Court, first noted that the inmates' families, attor-
6 408 US 665 (1972).
Ibid., at pp. 684-685.
8 Supra, note 5, at pp. 834-835.
9 417 US 843 (1974).
neys and religious counsel were accorded liberal
visitation privileges; members of the public at
large were not allowed to enter prisons and inter
view consenting inmates. This policy was applied
evenly to all prospective visitors, including journal
ists. Applying the decision in Pell, supra, he con
cluded that it was:.
. unnecessary to engage in any delicate balancing of such
penal considerations against the legitimate demands of the
First Amendment. For it is apparent that the sole limitation
imposed on newsgathering by Policy Statement 1220.1A is no
more than a particularized application of the general rule that
nobody may enter the prison and designate an inmate whom he
would like to visit, unless the prospective visitor is a lawyer,
clergyman, relative, or friend of that inmate. This limitation on
visitations is justified by what, the Court of Appeals acknowl
edged as «the truism that prisons are institutions where public
access is generally limited.. 161 U.S.App.D.C., at 80, 494 F.2d,
at 999 .... In this regard, the Bureau of Prisons visitation
policy does not place the press in any less advantageous position
than the public _ g enerally. Indeed, the total access to federal
prisons and prison inmates that the Bureau of Prisons accords
to the press far surpasses that available to other members of the
publiç. 10 [The underlining is my own.]
Mr. Justice Stewart then quoted from Pell to
the effect that the Government has no affirmative
duty to make available to journalists sources of
information not available to members of the gener
al public. Accordingly, the policy statement did
not abridge the freedom of the press guaranteed by
the First Amendment.
-Although U.S. authorities are not determinative
whenever dealing with a Charter issue, they have
often been quoted whenever there is an absence of
Canadian judicial precedents on point. In essence,
the cases I have cited deny the existence of special
status to journalists on constitutional grounds. No
express stipulation is found in American law which
would directly or by inference confer such a status
on them. Neither do I find any under the Charter.
On the contrary, the decision of the Ontario Divi
sional Court in Canadian Newspaper Co. v. Isaac,
supra,'is confirmative, in my view, that journalists
have no more right to information, or to disclosure
or even to access to information than the ordinary
citizen.
10 At p. 849.
THE CONCLUSIONS
If journalists are to be treated as ordinary citi
zens and if they enjoy no special status to obtain
information denied to others, it would follow, in
my view, that under conditions of siege and in a
compound defended by armed Warriors who effec
tively control the journalists' conduct, their status
would not impose on the defendants a special
affirmative duty of care in a manner the plaintiffs
have claimed. The defendants have not forced the
plaintiffs to enter into or to remain in the com
pound. Nor have the defendants, by threats or
otherwise, stopped them from leaving. On the con
trary, they have urged the plaintiffs to leave. Irre
spective of journalistic duties or ethics, the plain
tiffs are remaining on the scene voluntarily and
their liberty to leave the compound at any time is
no more restricted than the liberty of anyone else,
women, children and armed Warriors alike, from
leaving the compound.
In such circumstances, it is my view that the
principle applied in both U.S. and Canadian juris
prudence is applicable to the 'issue before me.
Freedom of the press as a concept does not confer
any special status on media people. Should a jour
nalist in quest of news put himself in a dangerous
situation, he has no greater right to protection
than his neighbour. If he should decide to file
stories "Behind Warrior Lines" as the plaintiff
MacLeod so headnoted his articles in The Ottawa
Citizen, it does not create a concomitant duty to
people in front of the same lines to provide him
with special treatment. If a journalist, in the centre
of an armed confrontation, feels it his professional
duty to remain there, he cannot impose on any
person, an obligation to do all that would be
necessary to keep him there. If a journalist freely
and voluntarily hazards the security of his person
to fulfil his functions, I know of no principle of law
granting him immunity from the consequences of
his conduct. Finally, if as stated in Branzburg y
Hayes, supra, a journalist has no constitutional
right of access to scenes of crime or disaster when
the general public is excluded, I should fail to see
how he might gain constitutional protection wher
he voluntarily remains in a compound under siege.
I should not venture any further than is neces
sary along this line of thinking. I am not called
upon today to decide the merits of the case but
rather to ascertain if the plaintiffs present a seri
ous question to be tried and, if so, whether injunc-
tive orders at this stage are warranted.
I must conclude that on the evidence before me,
and on the state of the law made available to me,
the plaintiffs have failed to show me that on the
basis of a Charter right to freedom of the press,
the defendants thereby owe a special duty of care
towards the plaintiffs. I cannot accept they should
enjoy immunity or other special status. They
cannot expect nor do they have a right to receive
special treatment except at the invitation of whom
soever, like the Warriors, might be enjoying or
tolerating their presence.
It is true that journalists in the compound did
enjoy some semblance of privilege in having their
needs filled separately by their employer and
having deliveries accepted separately through
checkpoints. In my view, that kind of privilege
does not make a right which should now be encap
sulated within the right conferred on paragraph
2(b) of the Charter in particular or within the
rights and freedoms conferred on the Charter
generally.
In any event, the evidence discloses that since
September 11, information has been continually
fed by the journalists to their newspapers for the
purpose of fulfilling the purported insatiable need
of the public for information on the current crisis.
It is admitted of course that the policy adopted by
the defendants makes that purpose more difficult
to maintain. Such difficulties, however, are inher
ent in the circumstances which have developed at
Oka. To subscribe to the defendants' policy the
characteristics of a violation such as I have been
invited to find would go far beyond the purpose
and object of that particular Charter right.
Touching briefly upon the evidence of the plain
tiffs that the current system of food allocation is
such as to create shortages of food to individual
journalists, I can only observe that this is a matter
more properly addressed to the Warriors than to
the defendants.
In closing, I would only refer to the remarks of
Mr. Justice Beetz in Manitoba (Attorney General)
v. Metropolitan Stores Ltd.:"
In short, I conclude that in a case where the authority of a
law enforcement agency is constitutionally challenged, no inter
locutory injunction or stay should issue to restrain that author
ity from performing its duties to the public unless, in the
balance of convenience, the public interest is taken into con
sideration and given the weight it should carry. Such is the rule
where the case against the authority of the law enforcement
agency is serious, for if it were not, the question of granting
interlocutory relief should not even arise. But that is the rule
also even when there is a prima facie case against the enforce
ment agency, such as one which would require the coming into
play of s. l of the Canadian Charter of Rights and Freedoms.
[The underlining is my own.]
If such is the case when an applicant has suc
ceeded in demonstrating a prima facie case, then a
fortiori this Court should be even more loathe to
intervene in the exercise of government policy of
this nature when an applicant has been unable to
make out a serious case.
The journalists in the compound might be
deserving of admiration and respect for the forti
tude they have shown during a long siege. Never
theless, on the basis of the facts and the law put
before me, the plaintiffs have not made out a
serious issue to be tried and the applications for
injunctive relief are hereby dismissed.
This is not a matter for costs.
11 [1987] 1 S.C.R. 110, at p. 149.
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.