T-2758-90
Gerard O'Sullivan (Plaintiff)
v.
Her Majesty the Queen (Defendant)
INDEXED its: O'SULLI AN V. M.N.R. (T.D.)
Trial Division, Muldoon J.—Toronto, July 9; Ottawa,
August 12, 1991.
Constitutional law — Charter of Rights — Preamble —
Supremacy of God recognized — Preamble not converting
Canada into theocracy — Security accorded to all believers in
God — Canada not atheistic state as U.S.S.R. was — Canada
remaining secular State.
Constitutional law — Charter of Rights — Fundamental
freedoms — Conscience and religion — Taxpayer seeking to
withhold portion of income tax used to fund abortions as free
dom of conscience and religion violated — No nexus argument
(accepted by F.C.A. in Prior v. Canada) disagreed with -
Opposition to law, government projects expressible at elec
tions, in Parliament, in Court — Compulsion to pay taxes por
tion of which supporting abortions may infringe freedom of
religion but saved by Charter, s. 1.
Income tax — Taxpayer withholding $50 as use of taxpay
ers' money to fund abortions "cannot be justified by any
method of tax assessment" — Appeal from order striking state
ment of claim in appeal, by trial de novo, from Tax Court deci
sion — Reference to Charter preamble recognizing supremacy
of God — Argument taxpayer's Charter, s. 2 rights infringed
— No nexus argument, accepted by Federal Court in Prior v.
Canada, rejected as lawyers' sophistry — Requirement to pay
taxes portion of which used to fund abortions infringing free
dom of religion but saved by Charter, s. 1.
Practice — Parties — Standing — Taxpayer appealing by
trial de novo from Tax Court decision disallowing withholding
of $50 on basis use of taxpayers' money to fund abortions
unjustified by any tax assessment method — Reference to
F.C.A. decision in Optical Recording case which appears to
immunize M.N.R. from judicial review in certain circumstances
— Reference to cases on standing to challenge constitutionality
of legislation — Taxpayer having standing to seek general dec
laration of constitutional interpretation as well as in context of
own tax assessment appeal.
This was an appeal from an order of the Associate Senior
Prothonotary striking the statement of claim as disclosing no
reasonable cause of action. The principal action was an appeal
from a decision of the Tax Court refusing the taxpayer's claim
to withhold $50 from his income taxes, that sum representing
taxes which go, via transfer payments and the provincial health
systems, to pay for abortions.
Held, the appeal should be dismissed.
The taxpayer has standing to bring, and the Court has juris
diction to hear, an action for a declaration of constitutional
interpretation. As a taxpayer, he has standing to seek that inter
pretation in the context of an appeal against his tax assessment.
Applicants ought not to be thwarted in constitutional applica
tions by sterile procedural obstacles. The plaintiff meets the
test for standing to seek a declaration that legislation is uncon
stitutional enunciated by the Supreme Court in Minister of Jus
tice of Canada et al. v. Borowski: that there be a serious issue
as to its invalidity, that he have a genuine interest as a citizen
in the validity of the legislation, and that there be no other rea
sonable and effective manner in which the issue may be
brought before the Court.
The recognition of the supremacy of God in the preamble to
the Charter prevents Canada from becoming an officially athe
istic state; it does not prevent it from being a secular state. The
secular state leaves religion alone, with the exception that it is
required to intervene to prevent practices, founded in religious
beliefs, which cause physical or mental harm to others or vio
late their constitutional rights. The history of inhumanity car
ried out in the name of religion shows that the resolutely secu
lar state is the sure foundation of security, including security of
religious belief. The secular state is neither bound nor permit
ted to promote every expression of conscience or religion. The
guarantee of freedom of religion in paragraph 2(a) of the Char
ter means not only that the state may not infringe that right, but
that it must protect it. While the legal compulsion to pay taxes
which are used in a manner which offends the taxpayer's relig
ious beliefs probably does limit his freedom of religion, that
requirement is saved by the limitation clause in section 1 of the
Charter. The argument that there is no nexus between the pro
grams of government and the contribution that every taxpayer
makes to those programs—accepted by the Federal Court of
Appeal in Prior—is little more than lawyers' sophistry. The
nexus is real. The taxpayer has, however, legal means of
opposition—including voting, litigation, and lawful expres
sions of dissent—to programs with which he disagrees. Since
he is under a legal compulsion to pay taxes, the use made of
those taxes need not weigh on his conscience where he dissents
from those uses.
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], preamble, ss. 1, 2(a), 7, 11(d), 28.
Constitution Act, 1982, Schedule B, Canada Act. 1982,
1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44],
s. 52.
Criminal Code, R.S.C. 1970, c. C-34, s. 251 (as am. by
S.C. 1974-75-76, c. 93, s. 22.1).
Criminal Code, R.S.C., 1985, c. C-46, ss. 174, 175(1)(b),
223.
Income Tax Act, S.C. 1970-71-72, c. 63.
Federal Court Rules, C.R.C., c. 663, R. 419.
CASES JUDICIALLY CONSIDERED
APPLIED:
Minister of Justice of Canada et al. v. Borowski, [1981] 2
S.C.R. 575; (1981), 130 D.L.R. (3d) 588; [1982] 1
W.W.R. 97; 12 Sask. R. 420; 64 C.C.C. (2d) 97; 24
C.P.C. 62; 24 C.R. (3d) 352; 39 N.R. 331.
DISTINGUISHED:
Optical Recording Corp. v. Canada, [1991] 1 F.C. 309;
(1990), 90 DTC 6647; 116 N.R. 200 (C.A.).
CONSIDERED:
Thorson v. Attorney General of Canada et al., [1975] 1
S.C.R. 138; (1974), 43 D.L.R. (3d) l; 1 N.R. 225; Borow-
ski v. Canada (Attorney General), [1989] 1 S.C.R. 342;
(1989), 57 D.L.R. (4th) 231; [1989] 3 W.W.R. 97; 75
Sask. R. 82; 47 C.C.C. (3d) 1; 33 C.P.C. (2d) 105; 38
C.R.R. 232; 92 N.R. 110; R. v. Morgentaler, [1988] 1
S.C.R. 30; (1988), 63 O.R. (2d) 281; 44 D.L.R. (4th) 385;
37 C.C.C. (3d) 449; 62 C.R. (3d) 1; 31 C.R.R. 1; 82 N.R.
1; 26 O.A.C. 1; R. v. Ingebrigtson (1990), 114 N.R. 381
(Ct. Martial App. CL); Prior v. Canada, [1988] 2 F.C.
371; [1988] 1 C.T.C. 241; (1988), 88 D.T.C. 6207; 18
F.T.R. 227 (T.D.) affirmed (1989), 44 C.R.R. 110; [1989]
2 C.T.C. 280; 89 D.T.C. 5503; 28 F.T.R. 240; 101 N.R.
401 (C.A.).
REFERRED TO:
R. v. Big M Drug Mart Ltd. et al., [1985] 1 S.C.R. 295;
(1985), 60 A.R. 161; 18 D.L.R. (4th) 321; [1985] 3
W.W.R. 481; 37 Alta. L.R. (2d) 97; 18 C.C.C. (3d) 385;
85 CLLC 14,023; 13 C.R.R. 64; 58 N.R. 81; Reed v.
Canada, [1989] 3 F.C. 259; (1989), 41 C.R.R. 371;
[1989] 2 C.T.C. 192; 89 DTC 5230 (T.D.); R. v. Fosty,
[1989] 2 W.W.R. 193; (1989), 55 Man. R. (2d) 289; 46
C.C.C. (3d) 449; 68 C.R. (3d) 382; 41 C.R.R. 20 (Man.
C.A.); R. v. Gruenke, [1991] 3 S.C.R. 263; Reference Re
Bill 30, An Act to amend the Education Act (Ont.), [1987]
1 S.C.R. 1148.
COUNSEL:
Paul Vandervet for plaintiff.
Livia Singer for defendant.
SOLICITORS:
Vandervet Karkkainen, Brantford, Ontario, for
plaintiff.
Deputy Attorney General of Canada for defen
dant.
The following are the reasons for order rendered in
English by
MULDOON J.: In this case are involved very serious
considerations about the nature of Canada and
whether the State is to be characterized legally and
constitutionally as atheistic, secular or theocratic. In
fact, the nature of the present proceeding is the plain
tiff's appeal by way of trial de novo from the decision
of Judge Mogan of the Tax Court dismissing his
appeal, in file no. 90-691 (IT). The Crown moved to
strike out the plaintiff's statement of claim—his
means of appealing against the Tax Court deci-
sion—on most of the multiple grounds stated in Rule
419 [Federal Court Rules, C.R.C., c. 663], by alleg
ing:
(a) the statement of claim discloses no reasonable cause of
action under Rule 419(1)(a) ... ; and
(b) the statement of claim is immaterial or redundant, is scan
dalous, frivolous, and vexatious, or is otherwise an abuse of
the proceeds [sic] of the Court under Rules 419(1)(b),(c) and
(f) • • • ,
(c) the [Federal] Court lacks jurisdiction to grant the relief
claimed.
The Crown's motion was allowed by Peter A. K.
Giles, Esq., Associate Senior Prothonotary, who
ordered that the plaintiff's statement of claim be
struck out, but without applying any pejorative adjec
tives to it. The plaintiff now appeals from the protho-
notary's order.
In filing his 1988 income tax return, Mr. O'Sul-
livan [hereinafter: the taxpayer] computed his tax and
remitted the sum payable, less the amount of $50
which he withheld for the reason expressed in a letter
attached to that return:
This money will be held in trust in solemn protest against the
use of taxpayer's money to pay for the murder of the unborn.
In his notice of appeal in the Tax Court, the taxpayer
stated his primary reason for appealing to be:
The use of taxpayers' money to pay for the annual killing of an
estimated 100,000 unborn children is a flagrant violation of
law and cannot be justified by any method of tax assessment.
In light of the sum of $50 which the taxpayer with
held, it is not correct to say, as the Crown earlier did,
that he is not seeking a change to his taxable income
as assessed. In effect the taxpayer claims that the last
$50 of tax which he would otherwise have had to pay
is too much to accommodate his conscience in regard
to its use in funding "the murder of the unborn".
Obviously the taxpayer does not refer to unborn gen
erations yet to come: he clearly means already con
ceived foetal humans, snuffed out in the process of
terminating their mothers' pregnancies.
Given the definition of a "human being" enacted
by Parliament in section 223 of the Criminal Code
[R.S.C., 1985, c. C-46], some may criticize the
expression "foetal human", but, of course, the human
being's predecessor according to section 223 is a
"child" or, one might equally logically say a baby,
infant or foetal human as distinct from a juvenile
human or an adult human. Not a pig or a puppy.
When abortionists snuff out foetal humans, it is an
occasion of humans killing their own species. This, it
seems clear, is the taxpayer's view of it, and is his
religious belief which the Crown attorney herein
characterized as undoubtedly "sincere". It is based on
the religious commandment which some juvenile and
adult humans would extend to pigs and puppies, but
which applies certainly to humans: "Thou shalt not
kill." The whole question of Parliament's purporting
to define by ordinary legislation (subsection 223(1)
of the Criminal Code) when the foetal sons and foetal
daughters, the children of certifiably human parents
become human beings is not a question directly in
issue here, but it obviously is central to the taxpayer's
religious beliefs. This matter merits further consider
ation, but first one ought to dispose of the matter of
jurisdiction.
There is no doubt that the taxpayer has standing to
bring this issue before the Court. As it had done
before, the Crown alleged that the Tax Court (and
hence, presumably, this Court, on appeal from the
former) lacked jurisdiction. The learned Tax Court
Judge in this taxpayer's appeal, noted such objection
on the Crown's part: and he either did not deal with
it; or he held that it had been answered when the tax
payer "then stated orally that he wanted his federal
income tax liability reduced by $1.00 as a sign that
his conscience has been violated."
It is not entirely clear in his reasons how Judge
Mogan disposed of that issue. In any event, the
Appeal Division of this Court has recently cast doubt
on the matter in Optical Recording Corp. v. Canada,
[1991] 1 F.C. 309, wherein the Court appears to
immunize the Minister of National Revenue from
judicial review at a taxpayer's behest or any other
proceedings outside of the strict parameters and ave
nues of appeal provided in the Income Tax Act [S.C.
1970-71-72, c. 63]. While attempting to formulate his
appeal in accordance with those strictures, the tax
payer concurrently, and apparently without the bene
fit of a solicitor's services, draws the Court's atten
tion to section 52 of the Constitution Act, 1982,
Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)
[R.S.C., 1985, Appendix II, no. 44]] which proclaims
the Constitution's hegemony over all other inconsis
tent laws. Despite the taxpayer's claim that any law
which compels him to pay tax money to the State for
distribution in part to fund abortion services is uncon
stitutional by reason, as he asserts, that it violates his
fundamental freedom of conscience and religion, he
is compliantly following what now may be the only
appellate avenue open to him if, indeed, the Appeal
Division's decision (at pages 319-321) in the Optical
Recording case does immunize the Minister, and the
operation of the Income Tax Act, from judicial
review. On the other hand, that judgment does not
prevent anyone from seeking a declaration against
the Government of Canada.
The taxpayer's standing here, however, is the locus
classicus for the type of relief he seeks. Prior to the
landmark majority decision of the Supreme Court of
Canada in Thorson v. Attorney General of Canada et
al., [1975] 1 S.C.R. 138, such a situation was as
described therein at pages 144-145:
In my judgment, the principle stated in the Smith case
[reported [1924] S.C.R. 331] is one of general application.
This principle is that an individual has no status or standing to
challenge the constitutional validity of an Act of Parliament in
an action of this type unless he is specially affected or excep
tionally prejudiced by it ... The fact that the taxes of the plain
tiff and the taxes of every taxpayer in Canada will be raised as
a result of the implementation of the Official Languages Act is
not, in my opinion, sufficient to constitute special damage or
prejudice to the plaintiff so as to enable the plaintiff to bring
this action.
I think there is sound reason for this result. If every taxpayer
could bring an action to test the validity of a statute that
involved the expenditure of public money it would in my view
lead to grave inconvenience and public disorder. It is for this
reason, I believe, that the plaintiff has been unable to find any
Canadian or English decision as authority for the position he is
asserting.
Of course, in the present action the taxpayer is both
"specially affected and exceptionally prejudiced" in
his view of his constitutionally guaranteed freedom
of conscience and religion, but in the view of others,
maybe many of his co-religionists, he is in the same
taxation plight as everyone else without any special
or exceptional aspect about it.
The Thorson case is a landmark judgment because
it was first of a line of cases which made standing to
challenge the constitutionality of legislation a matter
of relatively easy attainment. It enunciated these prin
ciples according to the majority of the judges:
A more telling consideration for me, but on the other side of
the issue, is whether a question of constitutionality should be
immunized from judicial review by denying standing to any
one to challenge the impugned statute. That, in my view, is the
consequence of the judgments below in the present case. The
substantive issue raised by the plaintiff's action is a justiciable
one; and, prima facie, it would be strange and, indeed, alarm
ing, if there was no way in which a question of alleged excess
of legislative power, a matter traditionally within the scope of
the judicial process, could be made the subject of adjudication.
[At page 145.]
The question of the constitutionality of legislation has in this
country always been a justiciable question. Any attempt by
Parliament or a Legislature to fix conditions precedent, as by
way of requiring consent of some public officer or authority, to
the determination of an issue of constitutionality of legislation
cannot foreclose the Courts merely because the conditions
remain unsatisfied: Electrical Development Co. of Ontario v.
Attorney General of Ontario ([1919] A.C. 687), B.C. Power
Corp. Ltd. v. B.C. Electric Co. Ltd. ([1962] S.C.R. 642).
Should they then foreclose themselves by drawing strict lines
on standing, regardless of the nature of the legislation whose
validity is questioned? [At pages 151-152.]
I recognize that any attempt to place standing in a federal
taxpayer suit on the likely tax burden or debt resulting from an
illegal expenditure, by analogy to one of the reasons given for
allowing municipal taxpayers' suits, is as unreal as it is in the
municipal taxpayer cases. Certainly, a federal taxpayer's inter
est may be no less than that of a municipal taxpayer in that
respect. It is not the alleged waste of public funds alone that
will support standing but rather the right of the citizenry to
constitutional behaviour by Parliament where the issue in such
behaviour is justiciable as a legal question. [At pages 162-163].
The majority of the Supreme Court judges thereupon
"as a matter of discretion" held that the appellant
Thorson should be allowed to have his action deter
mined on the merits.
So it was also determined, again by the majority in
the case of Minister of Justice of Canada et al. v.
Borowski, [1981] 2 S.C.R. 575. That majority deci
sion was written by Mr. Justice Martland for himself
and Ritchie, Dickson, Beetz, Estey, McIntyre and
Chouinard JJ., with Laskin C.J. and Lamer J. (then)
dissenting. Mr. Borowski, whose viewpoint was vir
tually identical with the taxpayer's, was accorded
standing. Here are some pertinent passages from the
majority judgment [at pages 594-598]:
The Thorson case was followed shortly afterwards by the
case of Nova Scotia Board of Censors v. McNeil ([1976] 2
S.C.R. 265).
In that case the plaintiff sought to challenge the constitu
tional validity of certain sections of the Theatres and Amuse
ments Act, R.S.N.S. 1967, c. 304 and certain regulations made
thereunder. He was a resident and taxpayer in the Province of
Nova Scotia. He was concerned about the powers of censor
ship provided in that Act.
It is obvious that in this [McNeil] case certain classes of per
sons were directly affected by the operation of the Act and the
regulations, i.e. film exchanges, theatre owners and cinemato-
graph operators. A theatre owner who wishes to challenge the
validity of the Act could have done so by showing a film
whose exhibition had been refused by the Board and, thereaf
ter, resisting the imposition of a penalty.
Notwithstanding these circumstances, the plaintiff was rec
ognized by this Court as having the necessary legal standing to
seek a declaration that the legislation was constitutionally inva
lid.
In both the Thorson and McNeil cases, the challenge to the
legislation in question was founded upon their alleged constitu
tional invalidity. In the present case, the challenge is based
upon the operation of the Canadian Bill of Rights. I agree with
the view expressed by the Chief Justice that no distinction
should be made between a declaratory action to obtain a deci
sion on validity under the British North America Act and a
declaratory action to obtain a decision on the operative effect
in the face of the Canadian Bill of Rights. [This judgment was
released some four months before the Charter's proclamation
into force.]
The legislation under attack here is not declaratory or direc
tory as in the case of the Official Languages Act nor is it regu
latory as in the case of the Theatres and Amusements Act. It is
exculpatory in nature. It provides that in certain specified cir
cumstances conduct which otherwise would be criminal is per
missible. It does not impose duties, but instead provides
exemption from criminal liability. That being so, it is difficult
to find any class of person directly affected or exceptionally
prejudiced by it who would have cause to attack the legislation.
The legislation proposed to be attacked has a direct impact
upon the unborn human foetuses whose existence may be ter
minated by legalized abortions. They obviously cannot be par
ties to proceedings in court and yet the issue as to the scope of
the Canadian Bill of Rights in the protection of the human
right to life is a matter of considerable importance. There is no
reasonable way in which that issue can be brought into court
unless proceedings are launched by some interested citizen.
In the light of the Thorson and McNeil cases, it is my opin
ion that the respondent should be recognized as having legal
standing to continue with his action. In the Thorson case, the
plaintiff, as an interested citizen, challenged the constitutional
validity of the Official Languages Act. The legislation did not
directly affect him, save in his position as a taxpayer. He had
sought, without avail, to have the constitutional issue raised by
other means. He was recognized to have status. The position is
the same in the present case. The respondent is a concerned
citizen and a taxpayer. He has sought unsuccessfully to have
the issue determined by other means.
I interpret these cases as deciding that to establish status as a
plaintiff in a suit seeking a declaration that legislation is inva
lid, if there is a serious issue as to its invalidity, a person need
[sic] only to show that he is affected by it directly or that he
has a genuine interest as a citizen in the validity of the legisla
tion and that there is no other reasonable and effective manner
in which the issue may be brought before the Court. In my
opinion, the respondent has met this test and should be permit
ted to proceed with his action.
Joseph Borowski did indeed proceed with his
action, which was dismissed by the Saskatchewan
Court of Queen's Bench, whose said dismissal was
upheld by the Court of Appeal. Borowski's appeal to
the Supreme Court of Canada came on for hearing on
October 3 and 4, 1988, but by that time section 251
of the Criminal Code [R.S.C. 1970, c. C-34 (as am.
by S.C. 1974-75-76, c. 93, s. 22.1)] with the
impugned subsections (4), (5) and (6) thereof had
been declared invalid by the Supreme Court in R. v.
Morgentaler (No. 2), [1988] 1 S.C.R. 30. To this day
Parliament has enacted no other law whatever in the
place of section 251 on the subject of abortions. The
Supreme Court on March 9, 1989, in such circum
stances dismissed Mr. Borowski's appeal on the
grounds that it had become moot and, thus, his stand
ing had then eroded: Borowski v. Canada (Attorney
General), [ 1989] 1 S.C.R. 342. Through all, however,
Borowski's standing was not placed in any doubt,
until his appeal became merely theoretical, and the
Supreme Court declined to adjudicate it.
In the case at bar, the taxpayer in light of the juris
prudence and of section 52 of the Constitution Act,
1982, surely has the standing as a taxpayer to bring,
and this superior Court surely has jurisdiction to
entertain, a suit for a general declaration of constitu
tional interpretation, and as a taxpayer he must also
have the standing to seek such an interpretation in the
context of his own appeal against his assessment of
his own income tax liability. The latter must be so, as
it most recently was unanimously affirmed, for exam
ple, by the Court Martial Appeal Court in R. v.
Ingebrigtson (1990), 114 N.R. 381, where, on appeal
from conviction the appellant successfully challenged
the constitutional validity of Standing Courts Martial
in regard to paragraph 11(d) of the Charter [Cana-
dian 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]]. That amounts to judicial review invoked
through another procedural route. In any event, the
judiciary must take seriously the provisions of section
52 which nullifies the effect of any provisions of any
law which are inconsistent with those of the Constitu
tion. Applicants such as the taxpayer ought not to be
thwarted merely by having sterile procedural obsta
cles raised against sincere efforts to vivify the Consti
tution's apparent imperatives.
The taxpayer's standing, and the Court's jurisdic
tion in this matter being established, the Court now
turns to the viability of the taxpayer's statement of
claim.
The Court, for the purposes of the Crown's appli
cation for the summary striking out of the taxpayer's
statement of claim, must take all of its allegations of
fact to be true, as if proved. Some significant
passages expressed in Mr. O'Sullivan's impugned
statement of claim are as follows:
(The taxpayer omits apostrophes "s" for possessives in his
writing, so, rather than sprinkle the quotations with [sic], the
missing apostrophes are simply supplied herein. The appellant
is the taxpayer.)
1. The appellant, Gerard O'Sullivan, in the appeal heard on
September 10, 1990 in the Tax Court of Canada, Toronto, by
Mogan T.C.J. (90-691-IT), clearly demonstrated that his free
dom of conscience and religion had been violated and
infringed by his requirement to pay income tax which would
be used to finance abortions. He demonstrated this by written
and oral arguments based on the teachings of the Pope and the
Christian church, on the testimony of outstanding Jewish writ
ers, on the Bible, on the Criminal Code of Canada, the univer
sal declaration of Human Rights, and on the testimony of
Judges in the following cases—The Mills case, Operation Dis
mantle case, Big M. Drug Mart case, and the Prior case.
2. The appellant demonstrated that the unborn child's right to
life was protected by Section 15 of the Charter of Rights &
Freedoms, and Article 8 of the Universal Declaration of
Human Rights. He proved that the child's right to life is pro
tected by Section 7 of the Charter.
3. The appellant showed that as his rights, under Section 2 of
the Charter, had been violated and infringed, he was entitled to
obtain a remedy in the Tax Court of Canada.
4. The appellant showed that, under Section 52 of the Constitu
tion Act 1982, the law, which permits the use of taxpayer's
money to finance abortion, is inconsistent with the Charter of
Rights and, therefore, is of no force or effect.
5. The appellant argued that his case differs from the Prior
case in that the deliberate killing of the innocent is taking place
daily, and is not based on a subjective or futuristic opinion.
The coercive link between the payment of income tax to
finance abortion, and the deprivation of the life of the child,
exists; and therefore meets the requirements of Justice Dickson
in the "Operation Dismantle case" for a remedy to be sought.
7. The appellant's reliance on the Prior case was to show that
he had the right to a remedy under Section 24(1) in the Tax
Court of Canada. As explained above there is a fundamental
difference in the two cases.
9. The appellant did not challenge the respondent's computa
tion of his income tax, but he does seek a remedy under Sec
tion 169 of the Income Tax Act.
10. His Honor Judge Mogan erred when he selected a state
ment of the Federal Court of Appeal in Prior v. The Queen to
throw out all the above arguments. This statement applies
strictly to the Prior case. His Honor's reasoning would place
the Income Tax Act above the Charter of Rights & Freedoms,
and Constitutional Act of Canada 1982. Under the guise of
socialism any evil could then be perpetuated.
11. The appellant's freedom of conscience and religion is vio
lated and infringed by the Income Tax Act. He is required to
participate in the performance of abortions by financing them.
This fact is a basic element of criminal law.
12. The appellant as a citizen of Canada and by his payment of
lawful income tax shares in all functions of his government.
Relief Sought
The Plaintiff therefore claims as follows:
a) He is entitled to a remedy by a reduction of income tax for
the year 1980, and every year thereafter.
b) That part of the law which permits the use of taxpayers'
money to finance legal abortions has no force or effect; and
therefore should be declared null and void under the power of
Section 52 of the Constitutional Act 1982 given to this Court.
This statement of claim evinces the lack of a lawyer's
services in its drafting.
The taxpayer was represented by counsel at the
hearing of this appeal from the prothonotary's order
striking his statement of claim. A most useful and
thorough discussion of the issues of this case took
place between counsel for each party and the Court.
Counsel for the taxpayer asserted that the State
should be compelled to accede to the taxpayer's
request for a reduction in his income tax on the basis
of his religious tenets. Counsel referred to the pream
ble in the Charter which pertinently proclaims that
"Canada is founded upon principles that recognize
the supremacy of God ...." Counsel noted that the
taxpayer is a religious believer in God, a Christian, a
Roman Catholic. Accordingly, he posited, the State is
obliged to accommodate this sincerely God-fearing
taxpayer's imperative, to avoid offending God by
contributing to so much of the country's health care
system as conducts abortions. Is that the necessary
implication of the preamble's recognition of the
supremacy of God?
The "supremacy of God" was inserted as an
amendment to the Charter's preamble as a result of a
motion made in the House of Commons by the
Honourable Jake Epp, member for Provencher, Mani-
toba, in February, 1981, and of necessity for its adop
tion, accepted by the Prime Minister of the day. The
principles based upon the supremacy of God (and its
companion basis, the rule of law) are not stated in the
preamble but may, in part be found, or logically
inferred from the Charter's text and the historical
roots of Canada which also evinced those principles.
What does the recognition of the supremacy of
God mean in constitutional and legal terms? After all,
the supremacy of God is recognized by people of
many similar and different religions; but their pro
fessed worship of God does not prevent them from
killing, maiming and torturing each other, including,
in many instances, their own co-religionists. Did the
inclusion in Canada's constitution of recognition of
the supremacy of God mean to make a theocracy of
Canada? Hardly. Had the expression been inserted
about a century or more, ago, it might have been
taken to mean that Canada was a Christian State, or
kingdom. Since the first settlement of western
Europeans, at first almost exclusively the French, in
this land nearly 400 years ago, the religions of North
American Europeans were those of western Europe,
principally England (later Britain) and France. The
Roman Catholic faith to which the taxpayer here
adheres, was implanted from the beginning in the
early 1600's in New France, which was a virtual the
ocracy. The arrival of the British brought Protestant-
ism, but the overwhelmingly Christian aspect of the
population remained. So ingrained was the popular
assumption of the eternally Christian complexion of
the population, that whereas minority Roman Catho
lic and Protestant separate schools were constitution
ally recognized, the majority were always content to
find their educational formation imparted in public
schools. It was thought then, and never foreseen oth
erwise, that the Canadian public would always
remain nearly 100% Christian. So, the taxpayer's
religious beliefs and principles are well known in his
tory and generally familiar to the population of
Canada. Nevertheless, the late amendment to the
Charter in 1981 cannot be construed to have con
verted Canada into a Roman Catholic theocracy, a
Mennonite theocracy, an Anglican theocracy or a
Jehovah's Witnesses' theocracy any more than
Canada was thereby converted into an Islamic theoc
racy (whether Sunnite or Shiite), a Hindu theocracy,
a Sikh theocracy, or a Buddhist theocracy.
What then is meant by this preamble? Obviously it
is meant to accord security to all believers in God, no
matter what their particular faith and no matter in
what beastly manner they behave to others. In assur
ing that security to believers, this recognition of the
supremacy of God means that, unless or until the
Constitution be amended—the best of the alternatives
imaginable—Canada cannot become an officially
atheistic State, as was the Union of Soviet Socialist
Republics or as the Peoples' Republic of China is
understood to be. Some may see little difference
between an atheistic State and a secular State, but it is
apparent that when the former begins, as several have
done, to enforce its basic principles, it must thereby
suppress theistic religions and the believers who
practise such religions. The fact that the political
"philosophy" with its "party line" is a non-theistic
religion never deters those who lust for political
power and control. A secular state just leaves religion
alone, with one exception, founded on pure reason.
The preamble to the Charter provides an important
element in defining Canada, but recognition of the
supremacy of God, emplaced in the supreme law of
Canada, goes no further than this: it prevents the
Canadian state from becoming officially atheistic. It
does not make Canada a theocracy because of the
enormous variety of beliefs of how God (apparently
the very same deity for Jews, Christians and Mus-
lims) wants people to behave generally and to wor
ship in particular. The preamble's recognition of the
supremacy of God, then, does not prevent Canada
from being a secular state.
Indeed, section 1 of the Charter directly defines
Canada in purely secular terms by guaranteeing
1.... the rights and freedoms set out in it subject only to
such reasonable [but not, or not necessarily, religious] limits
prescribed by law [not religion] as can be demonstrably justi
fied [again, reason, not necessarily religion] in a free and dem
ocratic society. [Underlining added.]
Thus, defining Canada as a "free and democratic"
society is to avoid defining it in religious terms such
as "très chrétien" or "Islamic", or the like.
The taxpayer's counsel also argued that to compel
Mr. O'Sullivan to pay over money to the government
as taxes, some of which goes to pay for the aborting
of foetal human life, is to violate that taxpayer's
Charter guaranteed "freedom of conscience and relig
ion". Counsel argued against the "no nexus"
approach which was taken by both the Trial and
Appeal Divisions of this Court in the case of Prior v.
Canada, [1988] 2 F.C. 371, at first instance; and
(1989), 44 C.R.R. 110 on appeal.
In the Trial Division, Mr. Justice Addy cited perti
nent provisions of the Financial Administration Act,
R.S.C. 1970, c. F-10 and the majority reasons
expressed by Twaddle J.A. of the Manitoba Court of
Appeal in Re MacKay et al. and Government of Man-
itoba (1985), 23 C.R.R. 8. Addy J. also wrote on this
issue [at page 3821:
The request for a declaration to the effect that the plaintiff is
not required to pay the percentage of our net federal tax owing
which would be equal to the percentage of the federal budget
allocated to military expenditures would have to be denied
because, for the reasons previously stated, there exists no con
nection whatsoever between the payment by taxpayers of
income tax to the Receiver General to be credited to the Con
solidated Revenue Fund and the payment from such fund of
whatever sums Parliament might have appropriated for mili
tary purposes.
In the Appeal Division, Mr. Justice Marceau, for a
unanimous panel, first indicated that he adopted the
judgment of Addy J., seeing [at page 113] "no pur
pose in trying to say differently what he has already
said". Then, Marceau J.A. wrote this [at page 114]:
It is clear that the action of the appellant could only succeed if
the taxes levied on the appellant's income from employment or
business are sufficiently connected to the monies expended for
military purposes, so as to render the payment of taxes an
insult to the beliefs and conscience of the appellant as regards
the use of violence. The motions judge was right in finding
that the existence or absence of such connection was strictly a
question of law to be answered in the light of the provisions of
the Income Tax Act, the Constitution Acts 1867 to 1982, and
the Financial Administration Act... .
The Supreme Court of Canada refused to give Dr.
Prior leave to appeal on February 22, 1990, and only
months later, on September 20, 1990, it dismissed her
application for reconsideration.
To pass off the present taxpayer's understanding or
that of Dr. Prior, of the contribution which all taxpay
ers make and every taxpayer makes to the projects,
services and programs of the government which
exacts the payment of taxes, as having no connection
the one to the other, is perhaps little more than law
yers' solemn sophistry, for patriots and politicians are
always telling Canadians how much Canadians ought
to admire the exploits of the Canadian Forces and the
universality of Canada's health care system. On the
other hand, the Auditor General annually demon
strates in what regard the folks in charge of govern
mental services and programs waste the taxpayers'
money. That money is neither extra-territorial, nor
extra-terrestrial. The nexus, despite the defendant's
counsel's erudite arguments, is real and really under
stood by a dignified, self-governing populace.
On the other hand, Canada is not a dictatorship
never scrutinized by the people. Whereas there have
been, and still are, conscientious people who coura
geously oppose tyrannical governments throughout
the world, Canada's is truly, as well as constitution
ally, "a free and democratic society". Opposition to
the law as well as the government's policies, services
and projects can be legally expressed firstly at elec
tion balloting, secondly in Parliament and thirdly in
the Courts. Other means reside in letters to newspa
pers and letters and petitions to Members of Parlia
ment. If, after all that expression of dissent one loses,
there is no other legal recourse.
The taxpayer here is lawfully pursuing the resort to
law as administered by the Court. His counsel
invokes paragraph 2(a) of the Charter, the constitu
tionally entrenched "freedom of conscience and relig-
ion". He argues that the taxpayer's freedom of con
science and religion is infringed by being compelled
by the government to pay over that portion of his
taxes which proportionately represents financial sup
port for abortions. It is correctly argued that the con
stitutional guaranty of that freedom means not only
that the State must not infringe it, but also that the
State must positively defend it from all infringement,
or else there is no such guaranty. So, subject to the
secular strictures expressed in section 1 of the Char
ter, everyone is free to entertain, openly to declare,
and to practise through worship or outward manifes
tation freely accepted or chosen religious beliefs
without hinderance or reprisal: and the State is bound
to defend this freedom along with the other rights and
freedoms guaranteed by and in the Charter.
Does legal compulsion to pay taxes some of which
go to support abortions mean State coercion which
infringes freedom of religion and conscience? It
probably does, but in any event, given the rights of
legal opposition in a free and democratic society it is
no doubt justified in terms of section 1, which, as
noted above imposes secular limitations on the free
dom. After all, there are religions and religions. Some
exact not only beliefs, but also manifestations or
practices which are inimical to Canada's constitu
tional values and imperatives. For example religions
or sects which exact suppression of the equal rights
of women, or which exact the taking of stupefying
drugs as a "sacrament", or which exact the involun
tary servitude of some of their adherents, or which
condone and incite their believers to the murder of an
alleged blasphemer. Mr. O'Sullivan would be
offended to be compared with such, and yet there
have been surely, and may still be, some who regard
his religion as being repugnant to the Constitution
and its values even although it has been rooted in
Canada for about four centuries. However, this tax
payer's assertion is that he is compulsorily made
party to the abuse of the health care system by means
of tax funded abortions which kill foetal humans, so
his plea of infringement of freedom of religion ought
to be constitutionally, if not socially, as acceptable as
anyone else's plea to the same effect.
There are certain vociferous believers in Canada
who believe that their Creator has done such a lamen
tably poor job in forming female humans that they
arrogate to themselves the right to improve on their
God's allegedly fumbled handiwork. The improve
ment under the euphemistically misleading appella
tion of "female circumcision" is nothing less than the
mutilation of their dependant daughters by cutting off
the clitoris and outer and inner labia of the vulva.
Whether called a manifestation of religion, ethnicity
or culture this cruel mutilation is practised presuma
bly because God bungled and to leave these girls and
women as they were created would be to pander to
sexual immorality. The adherents of this belief say it
is a parent's right to inflict such mutilation upon their
daughters, and moreover, they ought to have access
to the health care system to do it. Can they legally
withhold some taxes as compensation for the refusal
of surgeons and hospitals to do this? How is their
constitutional posture different from Mr. O'Sul-
livan's? What he seeks on a constitutional basis
ought, constitutionally, to be accorded to those
undoubtedly sincere daughter mutilators.
The Court emphasizes the constitutional plane of
approach, invoked by the taxpayer here, even
although the practice of mutilation of daughters,
which is nothing akin to the harmless male circumci
sion, causes irreversible bodily harm and should
excite the attention of children's aid societies. The
taxpayer's counsel would not concede that this prac
tice should be immunized and permitted by operation
of paragraph 2(a) of the Charter. Indeed, he is cor
rect, for if the State were to support that practice at
the expense of the taxpaying public it would surely
be infringing those unfortunate daughters' guaran
teed rights to "security of the person" enunciated in
section 7 of the Charter. Section 28 emphasizes
female persons' equal standing in all matters of rights
and freedoms.
In R. v. Morgentaler (No. 2), a majority judgment
of the Supreme Court of Canada held that section 251
of the Criminal Code which criminalized abortions,
but also permitted them to be authorized by therapeu
tic abortion committees violated the pregnant
woman's right to the security of her person guaran
teed by section 7, and that such infringement was not
justified pursuant to section 1 of the Charter. Thus
does the well known tenet of the taxpayer's religion
collide with another right. It is on the same constitu
tional footing as the less well known tenet of those
parents who have their daughters mutilated, for such
daughters are surely guaranteed the right to security
of their persons as much as pregnant women who
seek to abort their pregnancies.
The Court holds that this secular State of Canada
simply leaves conscience and religion quite alone,
with one exception, founded on pure reason. The
exception requires the State to intervene to prevent
the practice or expression of conscience and religion
from causing harm to others physically or mentally,
or from violating the constitutionally guaranteed
rights of others.
Moreover, the State may also intervene to enforce
generally accepted standards of public decency, but
such intervention requires a nicely balanced judg
ment on the part of the legislators and law enforcers.
In every city and beach resort in Canada during sum
mertime many persons are clad in such a minimal
manner as to offend certain sincere persons' sense of
decency. However the State, except in instances of
public nudity or exposing an indecent exhibition in a
public place, contrary respectively to section 174 and
paragraph 175(1)(b) of the Criminal Code (the for
mer requiring the consent of the Attorney General to
commence proceedings) and such similar specific
offences is not obliged, and probably not permitted,
to enforce those certain persons' conscientious or
religious objections against the rest of the populace.
In any event, the criterion is stated to be an offence
"against public decency or order", a secular standard
which, of course, could include some persons' stan
dard of conscience and religion but not necessarily
everybody's conscience and religion.
When it comes to practices which harm others,
obviously the State not only must not foster or pro
mote them, but is justified pursuant to the Charter's
section 1, to enact reasonable limits in law in order to
prevent or to eradicate such harm, despite the guar
anty of freedom of conscience and religion. Since
those perceptions depend upon whose "ox is gored",
the Court must strive for fastidious objectivity. Here
is how the taxpayer's counsel put the distinction
between Mr. O'Sullivan and the daughter-mutilators:
And in one case [the surgical procedure] destroys, termi
nates ... that particular young person, the child in utero and
the ... case ... is what Mr. O'Sullivan wishes to prevent and
not contribute towards. Whereas in the other case, I would
imagine ... that female circumcision can in fact be harmful to
the health and could even possibly be an assault on the child.
It mutilates the child and that is what the religion is [stand-
ing] for and therefore ... I don't see why that should not be
forbidden. In one case it's the harm that Mr. O'Sullivan is
opposed to, in the other case in fact there is in fact ... there
may be harm if the religious belief is fostered. I think that's the
central distinction.
So it is that sincere, conscientious religious beliefs
can so often blind one to the sincerity of other consci
entious religious beliefs. Thus, while the secular State
is bound to defend, that is to guarantee, everyone's
freedom of conscience and religion, it is not bound or
even permitted, to promote every expression or mani
festation of conscience and religion, just as it is not
bound to promote every manifestation of freedom of
opinion and expression, some of which are defama
tory. Indeed, it is the constitutional entrenchment of
these very disparate freedoms which demonstrates
the inherent secularity of the Canadian State. The
sorry story of human strife and savagery in the name
of God amply shows that the resolutely secular State
is the sure foundation of everyone's security, even if
it leaves something, or much, for sincere believers to
desire.
The unstated principles upon which Canada is
founded, which "recognize the supremacy of
God ... ", do not enshrine either the taxpayer's
beliefs and perceptions of God any more than they
enshrine the daughter-mutilators' beliefs and percep
tions of God. Mr. O'Sullivan is utterly free to adhere
to, and to promote through any medium of communi
cation, his beliefs about the moral depravity of abor
tion. The State cannot compel him to witness or to
participate personally in any such deeds. It could for
bid and prevent him from physically harming others.
That, however is as far as his freedom of conscience
and religion goes.
At the present time the Supreme Court of Canada
declines to weigh the foetal human's right to life and
security of the person as against the pregnant
woman's right to security of the person. A provincial
Court of Appeal has, in the Borowski case, affirmed
that a foetal human enjoys no such rights, whereas on
the other hand the Supreme Court of Canada has in
Morgentaler (No. 2) affirmed that legislated obstacles
to terminating a pregnancy prematurely pose an
infringement of a pregnant woman's right to the
security of her person. In this situation there is no
constitutional obligation on the State either to fund
abortion facilities or not to fund them.
So it is, that in this free and democratic society, the
taxpayer cannot exert his freedom of conscience and
religion so as to compel the State to forgive him that
notionally exact proportion of his assessed 1988
income tax which represents his share of the State's
distribution of its revenues to fund abortion facilities.
Perhaps it is paradoxical that it is the State's own sec-
ularity which best secures everyone's freedom of
conscience and religion. Theocracies past and present
and officially atheistic states are seen to be notori
ously bad at providing such security.
Because nothing human or organized by humans is
perfect, there is a murky side to Canada's posture in
regard to individual security. It is a precarious situa
tion when Parliament, by means of ordinary legisla
tion (the Criminal Code) purports as earlier above
mentioned, to define who or what is, and is not, a
human being (and thereby vested with the rights to
life and security of the person) according only to
such easily amended legislation. The precariousness
of this situation could be reified if, say, a transient
parliamentary plurality decided that old humans had
become a social burden or other inconvenience.
Would the constitutional prohibition against discrimi
nation on the basis of age save them? It has not cur
rently saved thousands and thousands of foetal
humans from widespread destruction through abor
tion.
The taxpayer is, no doubt, sorely and sincerely
aggrieved over such widespread destruction, as he is
entitled to be and as he is entitled to tell the world.
He is not to be muzzled or shouted down on any
tyrannical notion of what is "politically correct".
However, his conscientiously religious sense of
grievance does not constitute an infringement of his
manifest freedom of conscience and religion. Like
Dr. Prior, whose same freedom has not been
infringed either, the taxpayer therefore cannot legally
withhold a portion, or be accorded a reduction of his
assessed taxes on the basis of infringement of the
freedom of conscience and religion.
Of course, if the O'Sullivans and the Priors of this
country could, with numerous others, influence the
election of a majority of Members of Parliament, that
institution could, for secular reasons, dry up all fund
ing of abortion facilities and/or national defence
operations. But, such is the supremacy of the Consti
tution that not even a majoritarian Parliament could
be permitted to carry out such programs for religious
reasons, for even the majority may not prefer any-
one's religious or conscientious tenets in legislative
measures. A good illustration is the prohibition
against weekly celebration of the Sabbath on Sunday
in order to accommodate Christians; or if it were Sat-
urday, to accommodate Jews; or if it were Friday, to
accommodate Muslims. However nothing forbids the
weekly observance of a secular "pause day" with no
religious trappings, and if the majority of legislators
in response to the wishes of their constituents choose
Sunday for the one "pause day" per week, then Sun-
day it is: but if popular convenience shifted, any
other day of the week could become the "pause day".
So, also, a majority could cease funding abortions on
the basis of a disastrously declining birth-rate, or of
an apparently needed constraint on public spending,
or on the basis of any other secular reason or pur
pose. In any such political movement this taxpayer
could legitimately participate, for the Court could
hardly enquire into the motive of each individual in a
citizens' coalition. The only constraint in constitu
tional terms would be against a legislative purpose
overtly pandering to any particular conscientious or
religious tenet. The relationship of citizens' religions
to their secular State is amply explained in R. v. Big
M Drug Mart Ltd. et al. [1985] 1 S.C.R. 295 at pages
336 et seq., and again in Reed v. Canada [1989] 3
F.C. 259 (T.D.), affirmed without written reasons on
May 7, 1990, leave to appeal to the Supreme Court of
Canada refused [1990] 2 S.C.R. x.
Because the taxpayer's action de novo is founded
solely upon the alleged infringement of his freedom
of conscience and religion, it is clear and obvious that
because he, like Dr. Prior and all the other taxpayers,
is under legal compulsion to pay income tax, he can
not legitimately be reproached by his conscience for
he does not wish to pay the impugned portion of his
tax and does not do so freely and voluntarily. There
must be very few occasions when a Canadian Court
would approve of evasion of a legal duty, but here no
legal authority purports to impose upon the taxpayer
any legal duty to participate personally in the coun
selling or performance of an abortion. Indeed, the
taxpayer has a constitutional right to express his
vehement condemnation of such practices, so long as
he physically harms no one. So his freedom of con
science cannot be seen to be infringed.
The taxpayer's religious tenets run contrary to the
State-tolerated practice of permitting abortions, and
for reasons which the taxpayer cannot accept as justi
fiable. (It must not be thought that the taxpayer's
religion necessarily condemns all abortions, as for
example, in the case of an ectopic pregnancy, but
there is no evidence before this Court of the detailed
belief-content of the taxpayer's religion. General
opposition to abortion by Roman Catholics as a mat
ter of faith is "a notorious historical fact" of which
the Court may take judicial notice, in addition to its
being stated in the statement of claim.) The Charter
guarantees the taxpayer the right to hold firm to his
belief, even to denounce publicly State funding of
abortions, and to participate in lawful political activi
ties against such funding. So, it is not shown that his
freedom of religion and the manifestation of his relig
ion by worship and practice are infringed by the
exaction of income tax. (R. v. Fosty, [1989] 2
W.W.R. 193 (Man. C.A.) at pages 206-207; R. v.
Gruenke, [1991] 3 S.C.R. 263.) Indeed, the State
does not even attempt such an infringement in these
circumstances.
In this parliamentary democracy with its constitu
tionally entrenched imperatives, principles and other
implicit values, adherents both of religions long
established among the people and of religions
recently introduced into Canada cannot admissibly
claim or practise manifestations of religious law or
dogma which are inimical to Canada's constitutional
imperatives or values, or which are harmful to others
including their own current or fallen-away co-reli-
gionists, or which circumvent the enforcement of val
idly enacted laws. In this Canadian democracy, the
will of the majority expressed through the medium of
Parliament is not to be thwarted unless it conflicts
with those same constitutional imperatives, principles
and values. No individual believer, or religious group
of believers, asserting inter alia the freedom of con
science and religion, can exact a higher status or
greater privilege than the majority of Canadians rep
resented in the national law-making body. The secu
lar State, therefore, cannot constitutionally enforce
the imperatives of anyone's religious belief per se
(except for the above noted, historically entrenched
educational provisions), nor can the secular State per
mit ardent believers to incite their co-religionists to
commit illegal or anti-constitutional acts in the name
of religion or even in the name of God. In any such a
conflict, it is the Constitution which must be reso
lutely defended, for it simply cannot on any pretext
be seen to contain, under the rubric of any right or
freedom, the seeds of its own dilution or destruction.
No constitutional imperative, principle or value can
be interpreted to be inconsistent with any other such
imperative, principle or value. (Reference Re Bill 30,
An Act to amend the Education Act (Ont.), [1987] 1
S.C.R. 1148.) No religious value or manifestation can
admissibly distort or subvert validly enacted law or
the entrenched constitutional imperatives, principles
and values of Canada.
Whether it is still open to Parliament to prohibit
the performance of any abortions upon pain of prose
cution and punishment could in future be determined
by legislation not yet passed and consequent litiga
tion yet to be resolved. It seems much clearer in a
constitutional context that public funding of abortion
facilities could be diminished or deleted, but the tax
payer is clearly not entitled under the rubric of free
dom of conscience and religion to usurp Parliament's
function by taking the law into his own hands. Nor
could he lawfully incite or counsel others to do so, if
he were so inclined, which is not shown here to be
the case. Until he and others of like mind can per
suade Parliament to grant lawful exemptions to him
and Dr. Prior and other persons motivated by relig
ion, they simply have no case based on freedom of
conscience and religion when it comes to paying law
fully assessed taxes.
For the Court to apply any less rigorous standard
for this taxpayer would be to subvert the companion
premise of "the supremacy of God" which of course
is "[the supremacy of] ... the rule of law."
In summation, the Court holds that:
1. this Court has jurisdiction in these proceedings
to adjudicate the issue raised by Mr. O'Sullivan;
2. he has standing to raise the issue in these pro
ceedings on the classical basis that he is a taxpayer
who not only deems himself to be particularly
affected by tax-supported funding of abortion facili
ties, but he is such, objectively, in view of the truth
that he could hardly expect the Attorney General to
support his view, and this is the taxpayer's own case,
his statutorily provided means of appeal by trial de
novo;
3. there is a definite nexus between the sums a tax
payer is compelled to pay and the programs upon
which the government spends its tax-raised revenues,
and it is obvious in the basis-of-standing jurispru
dence that the plaintiff is classically described as a
taxpayer, and as well in the operations of that "grand
inquest of the nation", Parliament itself, as well as
inherent in the office of the Auditor General of
Canada: the precise, pointed and ever proper inquiry
is always "what has been done with the taxpayers'
money?" which is what those revenues are; this is the
stuff of democratic politics;
4. the taxpayer's manner of asserting freedom of
conscience and religion in this case "locates" or situ
ates or places him for valid purposes of assessment of
his assertion's validity, among those like Dr. Prior
and the other mentioned believers who assert special
interest status to exempt themselves from the opera
tion of ordinary laws (here, the Income Tax Act) as
well as, notionally, those constitutional imperatives,
principles and values which he and they would deny
to others (the right to security of the person guaran
teed by the Charter in section 7) for what he and they
assert to be a higher moral purpose in conformity
with his and their religious beliefs or religious
laws—it must be noted that apart from asking this
Court to ratify his withholding of $50 from his
income tax in order to accommodate his higher moral
purpose, this taxpayer Gerard O'Sullivan, has not
been shown to have committed any unlawful act, nor
to have incited or counselled others to commit any
violent or other unlawful acts—the Court is not here
concerned with the taxpayer's lawful political action,
if he chooses to indulge in the same, with a view to
persuading the State, if it could, to strip itself of its
protective garment of secularity;
5. despite the volume and density of these reasons
and notwithstanding foregoing conclusions 2 and 3, it
is clear and obvious that the taxpayer's statement of
claim does not disclose any reasonable cause of
action as articulated, on the basis of freedom of con
science and religion or any other basis.
This appeal from the decision of the learned Asso
ciate Senior Prothonotary, in which he ordered the
taxpayer's statement of claim to be struck out, is dis
missed. Were it not for other litigation in which the
taxpayer has been personally involved, as well as the
preceding Prior case, the Court would have been
inclined to dismiss this appeal without giving judg
ment for costs against this taxpayer. In the circum
stances, however, the taxpayer, Gerard O'Sullivan,
shall pay to the defendant all of the latter's party-and-
party costs of and incidental to this appeal from the
Associate Senior Prothonotary's decision of May 17,
1991.
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.