Constance Clara Fogal et al vs Her Majesty the Queen et al A-274-99 A-276-99

Results of Federal Court of Appeal hearning on MAI, 12 June 2000

Three judges of the Federal Court of Appeal of Canada ( Isaac, Robertson, Sharlow) dismissed three appeals before the Court today which dealt with:

1.whether Cabinet, the Prime Minister and his Ministers, can sign treaties, in secret, without any Parliamentary input, and bind Canada, under our new patriated Constitution of 1982;

2.whether the secrecy of 'Cabinet' privilege, under which citizens are not entitled to inquire about secretive Cabinet deliberations and decisions, is constitutional in light of the fact that the Supreme Court of Canada has ruled that the Courts are under a duty to review Cabinet decisions; and

3.whether Judge Dubé, an ex-Cabinet Minister who served with Prime Minister Jean Chrétien, who was a named Respondent party to the challenge, should have stepped down from hearing this case.

On April 22nd of 1999 Judge McKeown had dismissed the challenge based on his finding that since the MAI was not being 'negotiated' any longer at the OECD, then the Court had no issue before it. However, even Judge McKeown, in his decision, conceded that the following issues were NOT moot, namely whether: 1.Cabinet has a 'residual prerogative' ( a right to make decisions in secret without any input or say from Parliament) over the signing of treaties that bind Canada internationally; and

2.whether the secrecy and privilege accorded to Cabinet is constitutional.

Judge McKeown quite clearly decided that these issues before him were NOT moot, along with other legal issues before him in the Application. Even so, he decided not to hear them based on his decision that the MAI was no longer being negotiated at the OECD..

In the Court of Appeal, the three judges decided to agree with the reasons of Judge McKeown. They based their wrong decision on the fact that the Federal Court of Appeal, unlike the Supreme Court of Canada, was not the place for such issues.

In what amounted to no less than an 'Alice in Wonderland' exchange with our counsel Rocco Galati, the Court of Appeal created a new class of appeals for it 'not to decide.' It stated that even where there are serious and non-moot constitutional issues, they could refuse to decide these issues based on their assessment that they are 'academic' or 'hypothetical.' This classification is one which is unknown in law and at complete odds with the law as set down by the Supreme Court of Canada with respect to these issues.

While the Federal Court only heard partial argument on the first of the three appeals, they issued reasons on the other two appeals as if they had heard arguments, which they had not.

The Court of Appeal made it quite clear in its comments to Rocco Galati during oral argument that it would be the Supreme Court of Canada who would have to decide these issues, not the Federal Court.

Confident in the fact that the flagrant figure-skating of the Federal Court is wrong, according to the law as enunciated by the Supreme Court of Canada, and given the clear open statement and invitation to appeal to the Supreme Court, we will be filing a 'Leave Application' (an application for permission to bring up the appeal) with the Supreme Court of Canada in the next sixty days.

It is clear that the decision of the Federal Court of Appeal, not only in the tone exhibited in open court, but also in its blatantly wrong reasons, amounts to a serious mis-statement of the law and a decision not to deal with serious issues even though the court concedes that the issues are non-moot.

In another exchange with our counsel, the Learned Chief Judge of the Coram stated: 'The Court does not fumble!' But in this case it may well be that it stumbled or even bumbled. The Supreme Court of Canada will decide.

It was clear that the Court of Appeal had made up its mind against us before Court started. Once again our lawyer speaking for us was unable to get to the merits of the case. The Court was so hostile to our case that a number of our citizens who were present felt personally attacked and abused.

Nevertheless, I urge people not to be discouraged. The good point is that we move more quickly now to addressing the Supreme Court of Canada which is the only Court that will deal with our issues. If we had won this appeal, we would have been sent back down to a lower court and would have had to start all over again. This Court of Appeal would have been saying to the lower court that the lower court made a mistake and must now hear the case which it had refused to hear. The cost to us to start all over would have been awful.

We are now on the last leg of our journey.

Connie Fogal