Operation Dismantle v. The Queen
Encyclopedia
Operation Dismantle v. The Queen [1985] 1 S.C.R. 441 is a decision by the Supreme Court of Canada
where the court rejected a section 7
Charter
challenge against the government for allowing the US government to test cruise missile
s over Canadian territory.
It was argued that the use of cruise missiles by the US government increased the risk of nuclear war
and that Canada's participation made Canada a more likely target.
Chief Justice Brian Dickson
, writing for the majority, struck down the claim on the basis that given the unpredictability of foreign policy decisions of sovereign nations, suggestion of an increase in danger can only be speculative. It would be impossible to prove a causal link between the testing and the increased threat.
In her reasons, Wilson J.
dismissed the use of the political question
in Canadian law. She examined the jurisprudence behind the doctrine identified its basis in the core US constitutional principle of the separation of powers
. She distinguished this from Canadian constitutional law where separation is not a core principle, but rather is only secondary. Instead, there is a foundation in overlap between the branches as demonstrated in the system of responsible government
. Wilson concludes that section 24
of the Charter requires judicial review of the executive branch of the government. For an issue to be justiciable the question must raise a legal issue. She further noted that exercise of the royal prerogative can be judicially reviewed under section 32
of the Charter.
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
where the court rejected a section 7
Section Seven of the Canadian Charter of Rights and Freedoms
Section Seven of the Canadian Charter of Rights and Freedoms is a constitutional provision that protects an individual's autonomy and personal legal rights from actions of the government in Canada. There are three types of protection within the section, namely the right to life, liberty, and...
Charter
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
challenge against the government for allowing the US government to test cruise missile
Cruise missile
A cruise missile is a guided missile that carries an explosive payload and is propelled, usually by a jet engine, towards a land-based or sea-based target. Cruise missiles are designed to deliver a large warhead over long distances with high accuracy...
s over Canadian territory.
It was argued that the use of cruise missiles by the US government increased the risk of nuclear war
Nuclear warfare
Nuclear warfare, or atomic warfare, is a military conflict or political strategy in which nuclear weaponry is detonated on an opponent. Compared to conventional warfare, nuclear warfare can be vastly more destructive in range and extent of damage...
and that Canada's participation made Canada a more likely target.
Chief Justice Brian Dickson
Brian Dickson
Robert George Brian Dickson, , commonly known as Brian Dickson, was appointed Chief Justice of Canada on April 18, 1984. He retired on June 30, 1990 and died October 17, 1998.-Career:...
, writing for the majority, struck down the claim on the basis that given the unpredictability of foreign policy decisions of sovereign nations, suggestion of an increase in danger can only be speculative. It would be impossible to prove a causal link between the testing and the increased threat.
In her reasons, Wilson J.
Bertha Wilson
Bertha Wernham Wilson, CC was a Canadian jurist and the first woman Puisne Justice of the Supreme Court of Canada.-Early life:...
dismissed the use of the political question
Political question
In American Constitutional law, the political question doctrine is closely linked to the concept of justiciability, as it comes down to a question of whether or not the court system is an appropriate forum in which to hear the case. This is because the court system only has authority to hear and...
in Canadian law. She examined the jurisprudence behind the doctrine identified its basis in the core US constitutional principle of the separation of powers
Separation of powers
The separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...
. She distinguished this from Canadian constitutional law where separation is not a core principle, but rather is only secondary. Instead, there is a foundation in overlap between the branches as demonstrated in the system of responsible government
Responsible government
Responsible government is a conception of a system of government that embodies the principle of parliamentary accountability which is the foundation of the Westminster system of parliamentary democracy...
. Wilson concludes that section 24
Section Twenty-four of the Canadian Charter of Rights and Freedoms
Section Twenty-four of the Canadian Charter of Rights and Freedoms provides for remedies available to those whose Charter rights are shown to be violated...
of the Charter requires judicial review of the executive branch of the government. For an issue to be justiciable the question must raise a legal issue. She further noted that exercise of the royal prerogative can be judicially reviewed under section 32
Section Thirty-two of the Canadian Charter of Rights and Freedoms
Section Thirty-two of the Canadian Charter of Rights and Freedoms concerns the application and scope of the Charter. Only claims based on the type of law contemplated by this section can be brought before the Court....
of the Charter.