Saumur v. The Attorney-General for Quebec 1
Stephen A. Scott *
Practice and Procedure –
Actions –
Declaratory
Judgments in Quebec – Validity of Provincial Statute
– Necessary interest required to institute an action –
An Act respecting Freedom of Worship and the Mainte-
nance of Good Order, 2-3 Eliz. II, c. 15 (S. Que., 1953-4)
Shortly after Saumur had in 1953 (in a Supreme Court decision 2
holding certain Quebec City by-laws invalid as infringing the Freedom
of Worship Act 3), vindicated his right freely to distribute his reli-
gious pamphlets, the provincial Legislature enacted a statute 4 prohib-
iting on pain of fine and imprisonment dissemination, by speech in
public places, by press, radio or television, or in publications distribut-
ed from door to door or in public places, of matter
“containing abusive or insulting attacks against the practice of a religious
profession or the religious beliefs of any portion of the population of the
Province, or remarks of an abusive or insulting nature respecting the mem-
bers [in French the much stronger words “propos de caractbre outrageux on
injurieux pour les membres” –
italics added] or adherents of a religious
profession.”
This statute purported in effect to sweep away the right publicly to
disseminate opinions offensive to others, and the appellant sought to
have it declared invalid as dealing essentially with civil liberties –
Of the Junior Board of Editors, McGill Law Journal; second year law student.
1 [1964] S.C.R. 252; (1964) 45 D.L.R. (2d) 627; sustaining [1963] B.R. 116;
(1963) 37 D.L.R. (2d) 703. Proceedings on exception to the form: [1956] B.R. 565;
(1956) 5 D.L.R. (2d) 190.
2 [1953] 2 S.C.R. 299; see also [1952] B.R. 475.
3 A pre-Confederation statute of the Legislature of the Province of Canada;
reserved for the signification of Her Majesty’s pleasure, August 30, 1851; assent-
ed to by the Queen in Council May 15, 1852; proclaimed by the Earl of Elgin in
the Canada Gazette, June 9, 1852. Statutes of Canada 14-15 Vict. c. 175; Consoli-
dated Statutes of Canada, 1859, c. 74; continued in R.S.Q. 1888, Art. 3439; R.S.Q.
1909, Art. 4387; R.S.Q. 1925, c. 198; R.S.Q. 1941, c. 307.
4 An Act Respecting Freedom of Worship and the Maintenance of Good Order
2-3 Eliz. II c. 15 (S.Q., 1953-4).
No. 1]
CASE AND COMMENT
freedom of thought, conscience, and expression –
and as such beyond
provincial legislative power. The statute –
if not in contemplation
of law, at least in public notoriety – was especially directed at the
appellant’s sect, the Witnesses of Jehovah, and he accordingly sought
a declaration of its invalidity against the Attorney-General for
Quebec, the City of Quebec, and the head of the Provincial Police. The
Superior Court, upholding the validity of the statute, dismissed his
suit; the Court of Queen’s Bench, declining to hear the constitutional
question, dismissed his appeal, on the ground that he had in any
event no cause of action.
In an opinion delivered in French by the Chief Justice, a Full
Bench dismissed the appeal to the Supreme Court of Canada on the
grounds, apparently, (a) that Saumur had no interest or title to sue,
no right infringed, no cause of action; (b) that the Courts do not
give advisory opinions or legal consultations or decide academic ques-
tions; and (c) that there is in Quebec with a few statutory exceptions
no declaratory judgment.
A unanimous Court pronounced with one voice on a seemingly
self-evident matter; and indeed, the first and second of these reasons
were so obviously sound, the resulting dismissal of the appeal so
plainly correct, as to cause the third ground to be glossed over. The
first two grounds are in effect only a refusal to give an advisory
opinion, and if that were the only result of this case, the appellant
might derive some consolation from learning that George Washington
himself was unable to elicit legal opinions on Franco-American rela-
tions from a Supreme Court every member of which he had appointed,
and on partisan grounds to boot. But Taschereau C.J.’s opinion goes
much further; it purports virtually* to wipe the declaratory judgment
from the law of Quebec. This would be sufficiently serious if decided
with a clear understanding of what was being done; but when the
“declaratory action” is in one breath identified 5 with “legal consulta-
tions”, “academic and theoretical questions”, “absence of is”, “mere
fear of possible suit some day”, and is furthermore coupled 1 with a
discussion of advisory opinions given on references by federal and
provincial governments, the question arises whether we are not in the
presence of an elementary confusion between actions for declaratory
judgments and actions where there is no actual controversy or conflict
between existent legal interests.
The difference between advisory opinions and declaratory judg-
ments was well explained by the United States Supreme Court when
5 [1964] S.C.R. 252 at 257.
6 Ibid., at p. 256.
McGILL LAW JOURNAL
[Vol. 11
it sustained 7 the Federal Declaratory Judgments Act against the
charge that the act provided for advisory opinions in violation of the
strict constitutional separation of the judicial power from the
executive and legislative powers. In the words of Chief Justice
Hughes:
“The controversy must be definite and concrete, touching the legal rela-
tions of parties having adverse legal interests… It must be a real and sub-
stantial controversy admitting of specific relief through a decree of a con-
clusive character, as distinguished from an opinion advising what the law
would be upon a hypothetical state of facts… Where there is such a concrete
case admitting of an immediate and definitive determination of the legal
rights of the parties in an adversary proceeding upon the facts alleged, the
judicial function may be appropriately exercised although the adjudication
of the rights of the litigants may not require the award of process or the
payment of damages … And as it is not essential to the exercise of the
judicial power that an injunction be sought, allegations that irreparable
injury is threatened are not required.”
Little study is needed of experience in other jurisdictions to con-
vince of the economy and efficiency of the declaratory judgment in
doing justice. The prerogative writs and direct actions in nullity –
both well-established and quite respectable in Quebec –
already in
many cases free the parties from the need to commit themselves
irrevocably to their own views of their rights: no one challenges the
decisions of administrative tribunals by waiting until the officers
of the law come to enforce their orders, and by then resisting them
in order to bring an assault case before the courts. Those with legal
interest to sue can take appropriate proceedings immediately. By
generalising this principle, the declaratory judgment covers appro-
priate situations not already dealt with by prerogative writs or other
actions.
Desirable in itself, the declaratory judgment is easily founded on
statutory texts in Quebec. The Chief Justice himself points to Article
509 of the Code of Civil Procedure, which allows court decisions on
disputed questions of law arising from agreed submissions of fact.
Of course, the Chief Justice is quite right in –
literally – underlining
the fact that that section does not allow the obtaining of opinions –
so that it avails the appellant nothing – but that section shows how
little reason there is to condemn gratuitously the declaratory judg-
ment for its guilt by supposed association with the advisory opinion.
A basis can be found in Article 3 of the Code of Procedure whose very
object is to avoid frustrating the right for lack of a remedy. No one
proposes to infringe Article 77, which requires actual interest in legal
proceedings.
7Aetna Life Insurance Co. v. Haworth (1937) 300 U.S. 227, 240-41.
No. 1]
CASE AND COMMENT
Cursory examination of such works as Zamir’s study, The Decla-
ratory Judgment,8 easily replaces suspicion of the declaration with
conviction of its great value. Fortunately, the matter is not entirely
closed in Quebec. The Court rightly ruled that Saumur had no
interest to sue; that, surely, is an objection stopping the matter
in limine, and rendering obiter the dictum that if he had had an
interest to sue, he could not have done so by action for declaratory
judgment. Furthermore, the Court did not address itself to the distinc-
tion between advisory opinions and declaratory judgments; its deci-
sion is therefore distinguishable as a condemnation, properly speak-
ing, of advisory opinions, not of declaratory judgments. Otherwise,
this civil law judgment by a civil law judge in a civil law jurisdiction
must survive to mock the civilian jurists who so readily taunt the
common law for its obsession with the remedy to the exclusion of
the right. Being over one hundred years old, the declaration qualifies
as an antique; its importation into Quebec (or its discovery therein)
can surely not now offend even more conservative tastes. If (to change
the metaphor) the rule of obiter dictum can deflect the inadvertent
blow given by this case, the Supreme Court can surely re-examine
this promising child, the declaratory judgment, and, on the next
occasion, refrain from wilfully destroying it.
s I. Zamir, The Declaratory Judgment (London, 1962).
