Décisions de la Cour fédérale

     T-86-97

B E T W E E N:

     PACK M.J. INC., a legally constituted corporation

     having its head office or principal place of business

     at 56 rue Harde, St-Romuald, District of Québec, G6W 3T3,

-and-

     JACQUES THIBAULT, domiciled at 56 rue Harde,

     St-Romuald, District of Québec, G6W 3T3,

-and-

     LUCIE FORTIN, domiciled at 56 rue Harde,

     St-Romuald, District of Québec, G6W 3T3,

     Plaintiffs,

     - AND -

     HER MAJESTY THE QUEEN,

     Defendant.

     REASONS FOR ORDER

     (Delivered from the bench at Québec, Quebec,

     on Wednesday, June 4, 1997)

HUGESSEN J.

     The defendant, the Crown, is seeking to have the amended statement of claim struck out and the action commenced by the plaintiffs dismissed.

     The action is essentially seeking two things: (1) a declaration that certain federal statutes relating to the sale of tobacco¹ are unconstitutional; and (2) a monetary award for the damages allegedly caused to the plaintiffs when that legislation was brought into force.

     Although the allegations of unconstitutionality are not framed in the most rigorous manner and might be impossible to establish at trial, it is impossible for me to say at this stage that the plaintiffs have no chance of success and that this is a situation that plainly and beyond any doubt calls for dismissal. It is not impossible that the plaintiffs might succeed in persuading the Court that the prohibition on selling cigarettes in certain forms of packaging or packages or using certain forms of distribution constitutes an infringement of their freedom of expression. I am therefore not prepared to strike out the entire statement of claim or to dismiss the action.

     However, with respect to the portion of the action seeking a monetary award, I find that the motion is sound. The plaintiffs are arguing that they have been subject to a disguised expropriation, citing Manitoba Fisheries Ltd. v. The Queen.² In my view, that decision has no application here; the business that the plaintiffs claim to have carried on until the new legislation was brought into force will not be carried on in future by an agent of the Crown or by anyone else. On the contrary, this is a prohibition of general application which has been enacted for the public welfare and to protect the public. It is plainly not up to the Court to assess the advisability or wisdom or the effectiveness of a statute.

     In my view, even if the plaintiffs are ultimately successful on the question of the unconstitutionality of the impugned statutes, it is impossible that the Crown would then be civilly liable. It is not a civil offence for a sovereign parliament to legislate, even when it does so ultra vires. In a free and democratic society, the enactment of a statute in good faith to promote what is perceived to be the public interest does not result in liability on the part of the Crown (or, for that matter, of the other components of Parliament: senators and members of Parliament). Our system of government requires that, in the public interest, Parliament not be liable in damages for the consequences of its legislation.

     I shall therefore allow the motion in part. Paragraphs 19, 20 and 26 of the amended statement of claim, and the paragraphs setting out the relief sought in the form of a monetary award, will be struck out. I shall not grant the request to strike out the names of the two individual plaintiffs, who have sufficient interest, in my view, to challenge the validity of the statutes in question.

     Costs in the cause.

                                 James K. Hugessen

     Judge

Québec, Quebec,

Wednesday, June 4, 1997.

Certified true translation

C. Delon, LL.L.

     FEDERAL COURT OF CANADA

     TRIAL DIVISION

     NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT FILE NO:      T-96-97

STYLE OF CAUSE:      Pack M.J. Inc. et al.

         - and -

     Her Majesty the Queen

PLACE OF HEARING:      Québec, Quebec

DATE OF HEARING:      June 4, 1997

REASONS FOR OF THE HONOURABLE MR. JUSTICE HUGESSEN

DATED:      June 4, 1997

APPEARANCES:

Michel Pouliot              FOR THE PLAINTIFFS

Rosemarie Millar              FOR THE DEFENDANT

SOLICITORS OF RECORD:

Michel Pouliot              FOR THE PLAINTIFFS

Charlesbourg, Quebec

Deputy Attorney General of Canada              FOR THE DEFENDANT

Ottawa, Ontario

__________________

¹      Act to amend the Excise Act, the Customs Act and the Tobacco Sales to Young Persons Act, S.C. 1994, c. 37; Tobacco Act, S.C. 1997, c. 13.

²      [1979] 1 S.C.R. 101.