Dutil, Hamilton, Lavallée

Appeal from a judgment of the Superior Court granting an application by the respondent, the United States Attorney General, to dismiss an application to authorize a class action against it. Dismissed.

The appellant seeks authorization to bring a class action on behalf of all persons who underwent treatments as part of the “Montreal Experiments” conducted between 1948 and 1964 by Dr. Donald Ewen Cameron at the Allan Memorial Institute in Montreal. The action also seeks compensation of their successors, assigns, family members, and dependants. The trial judge determined that the action should be dismissed after finding that the respondent was immune from the jurisdiction of any court in Canada under the State Immunity Act (R.S.C. 1985, c. S-18) (the SIA).

The judge did not err by deciding the issue of the respondent’s immunity at the preliminary stage. Article 168 para. 2 of the Code of Civil Procedure (CQLR, c. C-25.01) allows a party to ask that an application be dismissed if it is unfounded in law. The issue of state immunity is a matter of law and public order that, barring exceptional circumstances, must be decided at the application to dismiss stage.

Furthermore, the judge did not err in law by finding that the respondent benefitted from the jurisdictional immunity conferred on foreign states, notwithstanding the exceptions stemming from the SIA and common law. In this case, the alleged facts, namely the treatments administered by Dr. Cameron with the financial support of the Central Intelligence Agency, took place well before the SIA came into force in 1982, and the immunity exception for bodily injury in s. 6 does not apply since the law has no retroactive or retrospective effect.

The judge did not err in finding that the presumptions against retroactivity and against retrospectivity have not been rebutted. Nothing in the SIA indicates that it confers retroactive or retrospective reach to the exception in s. 6 of the Act, unlike s. 6.1(1), which provides that a state is not immune from the jurisdiction of a court in proceedings against it for its support of terrorism on or after January 1, 1985. Also, the SIA is not purely procedural and therefore is not of immediate application, since it affects substantive rights, that is, a defence that existed before it came into force, namely that of state immunity for bodily injury. Moreover, the Canadian courts that have addressed the issue have all concluded that the SIA does not apply when the impugned conduct took place prior to its coming into force.

Finally, the appellant’s argument that the respondent does not benefit from immunity at common law because its activities were commercial in nature must fail. What the respondent is being blamed for are its funding activities related to the Montreal Experiments. This funding was not commercial in nature. The experiments were conducted to address national security concerns in the wake of the Second World War. The appellant’s argument invoking the illegal nature of the activities must also fail, since no such exception exists in the SIA, at common law, or even in customary international law.

Legislation interpreted: s. 6 of the State Immunity Act

Text of the decision: http://citoyens.soquij.qc.ca