Date: 20000920
Docket: T-1803-91
BETWEEN:
SAIRA PERVEZ, SAIMA PERVEZ, BOBBER PERVEZ,
SAMRA PERVEZ, SOFIA PERVEZ, minors, by their
Litigation Guardian, Durdana Pervez,
DURDANA PERVEZ, personally, AND
ARSHAD PERVEZ
Plaintiffs
- and -
HER MAJESTY THE QUEEN
Defendant
REASONS FOR ORDER
(Delivered from the Bench at Toronto, Ontario
on Friday, September 15, 2000)
HUGESSEN J.
[1] The plaintiffs sue for damages arising from alleged torts and Charter breaches said to have been committed by agents of the Crown.
[2] The defendant has moved to strike out the statement of claim and dismiss the action on the grounds that the latter is frivolous, vexatious and an abuse of the process of the Court.
[3] There is affidavit evidence before the Court but the essential facts are in fact not contested although there are one or two relatively minor details which have given rise to some dispute.
[4] Customs agents and officers of the Royal Canadian Mounted Police in Canada acted to assist United States customs agents in an investigation of allegedly illegal activities by the principal plaintiff (whom I will hereinafter refer to as the plaintiff) with respect to an attempt to export certain controlled materials to Pakistan.
[5] There is an agreement between the US government and the Canadian government for mutual assistance in customs matters. That agreement, of course, does not require in the way that an extradition treaty might require, double criminality. I say (of course) because the customs laws, like other revenue laws, are different in each country and the agreement is for mutual assistance in the enforcement of each others customs laws.
[6] Plaintiff was in due course arrested in United States for an alleged breach of the US customs laws. He was convicted in that country by a jury in US District Court and sentenced to five years imprisonment. On appeal, the Third Circuit found that the evidence justified the conviction but felt constrained to order a new trial because of a recent decision of the United States' Supreme Court on the question of entrapment as to which an issue had been raised in the district court by the plaintiff.
[7] At the new trial, so ordered, there was a plea bargain and the plaintiff pleaded guilty to a charge of exporting a controlled substance, not the same controlled substance that he was thought to have attempted to have exported from Canada but another controlled substance. I say he pleaded guilty, in fact the plea was one of nolo contendere but in my understanding of United States laws, there is no substantial difference. On that plea, he was sentenced to time served on the previous conviction which amounted to a very substantial period of time, namely, 32 months.
[8] He launched civil actions in the United States, both against the United States government and against the original complainant. Those actions were dismissed in the US District Court and an appeal was dismissed for want of prosecution.
[9] He likewise launched a civil action in this country against the complainant and that action too was dismissed on a preliminary motion and that decision was confirmed by the Ontario Court of Appeal. This is the only remaining civil action.
[10] The central argument put forward by plaintiff's counsel on the motion today is that the crime of which he was convicted in the United States is not a crime under the laws of that country because the substance which he was originally convicted of having conspired to export was not a controlled substance. Subsidiarily, it is argued that the government of Canada is liable in tort for abusive or malicious prosecution in this country because a charge was laid against the plaintiff, in this country, immediately after he was arrested in United States. That charge was never proceeded with and was ultimately withdrawn.
[11] Counsel says that that Canadian charge was also for a crime not known to Canadian law. I do not accept that argument. There is evidence before me that the substance alleged to have been the subject of the exportation in question was a controlled substance.
[12] In my view, this action cannot possibly succeed and must be dismissed as an abuse of the Court's process.
[13] It is not open to the plaintiff to argue that his first conviction in United States was for a crime not known to the laws of that country. The conviction was by a Court of competent jurisdiction. It was found to have been properly made by the Court of Appeal which clearly was of opinion that the offence charged was a crime in the United States. This Court cannot overrule the American Courts on the state of American law and when the Court of Appeal for the Third Circuit found that the plaintiff's conviction was justified on the evidence, that is a finding which this Court is not in a position to dispute. Not only common sense but comity and well established principles of international law prohibit this Court from disputing a foreign Court's finding as to the state of the law in that foreign forum.
[14] The actions of Canadian authorities in aid of US authorities in accordance with intergovernmental agreements and obligations under those agreements cannot, in my view, found an action here. The conviction of the plaintiff in the United States removes any possible question that he committed a crime and it ex post facto removes any argument that there was not reasonable and probable cause for belief that he had committed a crime.
[15] In my view, the conviction in United States and the consequences which flowed from it, dispose not only of any possible liability for common law torts, but also for any claim for breaches of Charter guaranteed rights. What happened to the plaintiff has been definitively found to have been reasonable and in accord with the principles of fundamental justice.
[16] I have previously said that I do not accept that the charge laid here in Canada was for a crime not known to Canadian law but even if that were the case, the Canadian charges were never proceeded with and were withdrawn. The plaintiff was not arrested and was never deprived of his liberty as a consequence of those charges. They could not have caused him any damage, all the damage which is alleged to have been suffered by the plaintiff and subsidiarily by the co-plaintiffs is the direct result of his legitimate arrest, conviction and imprisonment in United States for charges against the laws of that country. No action in this country can be founded on those facts.
[17] Accordingly, I conclude that the motion will be allowed and the action will be dismissed. No order as to costs.
"James K. Hugessen"
Judge
Montréal, Québec
September 20, 2000
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