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Black v Canada 2000 CA

Facts:

P was nominated for a peerage in the UK, which required the advice of the Canadian government. At first it was given positively, but then P was told the PM intervened against it. The PM cited a law against the assigning of honours to Canadian citizens, but this position was later changed, and besides which over 100 similar honours have been given. P was a dual citizen by that point.

Issue(s):

Is the advice of the prime minister to the Queen on the matter of appointments and honours a justiciable matter? (i.e. is it plain and obvious)

Ratio:

It is plain and obvious the Prime Minister’s advice about honours is his prerogative beyond the review of the Courts, because it does not touch upon a right or legitimate expectation.

Analysis:

A claim should only be stricken if it is “plain and obvious” (Rule 21.01(1)(b) Civil Procedures)
-“Only if the action is certain to fail … should the relevant portions of the plaintiff’s statement of claim be struck out.” Hunt v. Carey Canada Inc.,
D was acting within his prerogative (Honours power)
-“…the Crown prerogative is “the residue of discretionary or arbitrary authority, which at any given time is left in the hands of the Crown”.” Dicey, Introduction to the Study of the Law of the Constitution 10th
-This is a creature of the common law and it is heavily limited by statute
--The granting of honours has never been displaced by statute
-The Crown prerogative does not have to be pleaded to be the gorunds for a Court striking out a claim Operation Dismantle Inc. v. The Queen
-The Honours prerogative clearly includes giving advice to foreign governments otherwise the policies under question would make no sense (1919 Nickle Resolution, etc.)

Even if the advice was wrong or given carelessly or negligently, it is not reviewable in the courts.
-It would be reviewable if it altered P’s rights or legitimate expectations (i.e. what the government previously said he was entitled to, or what they said they would not revoke.
--Expectation is not meant in the subjective sense but in the objective rights-oriented sense
--There is a spectrum between matters of high policy (i.e. treaties and war) and low policy (i.e. whether to assign a passport or not). The former are not reviewable the latter should be.
--Giving advice about honours falls into the non-justiciable category Civil Service Unions
---This is because no important rights are at stake

Holding:

Appeal dismissed. D won.


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