Date: 20100326
Docket: T-1034-09
Citation: 2010 FC 335
Ottawa,
Ontario, March 26, 2010
PRESENT:
The Honourable Mr. Justice de Montigny
BETWEEN:
MOHAMED
OMARY
Applicant
and
THE ATTORNEY GENERAL OF CANADA,
THE SECURITY INTELLIGENCE REVIEW
COMMITTEE and
THE CANADIAN
SECURITY INTELLIGENCE SERVICE
Respondents
REASONS FOR ORDER AND ORDER
[1]
This is an
application for judicial review of a decision by the Security Intelligence
Review Committee (SIRC) dated May 12, 2009, to stay the investigation of the
complaint made by the applicant against the Canadian Security Intelligence
Service (CSIS), pending the outcome of the proceedings brought by the applicant
in the Superior Court of Québec against CSIS and the Royal Canadian Mounted
Police. This decision was disclosed to the applicant by means of a letter dated
May 22, 2009, further to the recommendation made to SIRC by the Honourable
Arthur T. Porter, who presided over the hearing in this regard on May 6, 2009.
I. Background
[2]
The applicant
forwarded a complaint and a formal demand to the Director of CSIS on May 9, 2008, regarding actions of
CSIS employees. The applicant alleged that CSIS officers were involved in the
breach of his rights following his detention in Morocco for a period of almost two years; he
also alleged having been intimidated and threatened by a Moroccan secret
service agent in Canada in 2005. Mr. Omary contended
that these actions constitute wrongful acts on a civil basis, breaches of his
constitutional rights guaranteed by sections 2, 6, 7, 9 and 12 of the Canadian
Charter of Rights and Freedoms and criminal acts. He therefore demanded that
CSIS investigate these actions, that it acknowledge its responsibility in his
arrest in Morocco, and that it pay him compensation
in the amount of one million dollars.
[3]
On June 6,
2008, the Deputy Director of CSIS informed the applicant’s counsel that this
demand would not be acted upon.
[4]
On June
16, 2008, the applicant made a complaint to SIRC, as he was authorized to do
under section 41 of the Canadian Security Intelligence Service Act, R.S. 1985, c. C-23
(Act), which essentially reproduced the allegations contained in his formal
demand. Mr. Omary asked SIRC to investigate the actions of CSIS in order to
find it responsible for the alleged conduct, claimed the amount of one million
dollars and asked for the correction of any information harmful to his rights
and his reputation.
[5]
On June
30, 2008, SIRC invited the applicant to make his written submissions concerning
SIRC’s jurisdiction to proceed with this investigation. It also informed him
that it did not have jurisdiction under subsection 52(1) of the Act to order
monetary compensation and to require CSIS to take corrective measures.
[6]
On October
30, 2008, at the respondent’s request, SIRC asked the applicant for details
concerning CSIS’s alleged actions. The applicant replied to this letter on
December 17, 2008. In it, he criticized CSIS for having:
- exchanged information and/or made
arrangements with a foreign intelligence service, the Moroccan DST, which led
to the confiscation and retention of the complainant’s passport, his arrest and
his detention for nearly two years in Morocco for the purposes of obtaining his
cooperation in Canada as an informer;
- participated in an interrogation of the
complainant with the Moroccan DST in Morocco in 2003 for the purposes of obtaining
his cooperation in Canada as an informer;
- contributed to the pressure, intimidation
and threats directed at the complainant in order to, among other things,
require him to reveal information about persons in Canada and to cooperate as
an informer;
- intimidated/threatened the complainant
by, among other things, being accompanied by a Moroccan DST agent in Canada
during a meeting with the complainant in 2005 for the purposes of obtaining his
cooperation in Canada as an informer;
- participated in the violation of the
complainant’s constitutional rights.
Applicant’s Record, p. 30
[7]
On
December 30, 2008, the applicant brought at the same time, in the Superior
Court of Québec, an action in damages against the Attorney General of Canada,
CSIS and the Royal Canadian Mounted Police. In this 254-paragraph proceeding,
the applicant essentially reproduced the same allegations. He criticized the
respondents for having created and/or contributed to the pressure,
intimidation, threats and deprivations of liberty he was subjected to in
Morocco and in Canada in order to, among other things, require him to reveal
information about persons in Canada and to cooperate with CSIS as an informer
in Canada. He also demanded monetary compensation of one million dollars under Quebec civil law and the Canadian
Charter. This action is still pending.
[8]
On
February 13, 2009, SIRC informed the applicant and CSIS that a hearing would be
held to determine whether, under paragraphs 41(1)(a) and (b) and
subsection 41(2) of the Act, the complaint could be investigated, particularly
given the legal proceeding brought by the applicant in the courts.
[9]
On May 6,
2009, a hearing was held before one of the members of SIRC, the Honourable Arthur
T. Porter, to determine SIRC’s jurisdiction to investigate the applicant’s
complaint. The issues were whether the complaint before SIRC was frivolous or
vexatious within the meaning of section 41 of the Act, given the civil action
pending in Superior Court, and whether SIRC had jurisdiction to determine
breaches of Charter rights. The respondent had also asked, in the alternative,
in the event that SIRC confirmed its jurisdiction, that the investigation be stayed
pending the outcome of the civil action in Superior Court.
[10]
On the
recommendation of the Honourable Mr. Porter, SIRC found that the applicant’s
complaint was admissible and that it had jurisdiction to investigate it, but granted
the stay of the investigation pending the Superior Court’s final decision in
the civil action. This decision was disclosed to the applicant in a letter
dated May 22 as follows:
[TRANSLATION]
On behalf of SIRC, I hereby inform you
that on May 12, 2009, further to the report submitted by the Honourable Arthur
T. Porter, SIRC has determined that it has jurisdiction to investigate your
client’s complaint. However, in order to rule out any possibility that SIRC and
the Superior Court of Québec arrive at contradictory conclusions, SIRC has
decided to stay its investigation and to allow the Superior Court to make a
definitive ruling on your client’s motion instituting proceedings. Although the
complaint and the motion instituting proceedings seek different remedies, there
is considerable overlap between the questions of fact and the allegations
raised against CSIS.
Exhibit E of the affidavit of Alain Desaulniers,
Respondent’s Record, p. 207.
II. The impugned decision
[11]
In the
reasons he signed in support of his recommendation to SIRC, the Honourable Mr.
Porter first dealt with CSIS’s argument that the applicant’s complaint was
inadmissible because it was trivial, frivolous, vexatious or made in bad faith
within the meaning of paragraph 41(1)(b) of the Act, given the similar
pending civil proceeding. This provision reads as follows:
|
Complaints
41.
(1) Any
person may make a complaint to the Review Committee with respect to any act
or thing done by the Service and the Committee shall, subject to subsection
(2), investigate the complaint if
(b) the Committee is satisfied
that the complaint is not trivial, frivolous, vexatious or made in bad faith.
|
Plaintes
41.
(1) Toute
personne peut porter plainte contre des activités du Service auprès du comité
de surveillance; celui-ci, sous réserve du paragraphe (2), fait enquête à la
condition de s’assurer au préalable de ce qui suit :
b) d’autre part, la plainte
n’est pas frivole, vexatoire, sans objet ou entachée de mauvaise foi.
|
[12]
CSIS had claimed
that authorizing the applicant to proceed at the same time in both fora could
give rise to contradictory decisions and thereby bring the administration of
justice into disrepute. In contrast, the applicant had argued that the
complaint was neither frivolous nor vexatious, because it was not plain and obvious
that it was without foundation and without any possibility of success.
[13]
The
Honourable Mr. Porter agreed with the applicant’s arguments and rejected CSIS’s
claims. In his opinion, there was nothing to indicate that the complaint would
not be allowed, that it would not lead to any valid results and that it had
been filed for improper purposes. Moreover, the applicant was not seeking to
argue issues that had already been determined. This was therefore a case that
differed from Khadr v. Canada (Minister of Foreign Affairs), 2004 FC 1145, [2004] F.C.J.
No. 1391, since the two proceedings were not duplicative.
[14]
However,
the Honourable Mr. Porter found, after comparing the applicant’s allegations in
his letter to SIRC and in his motion instituting proceedings filed in Superior
Court, that there was considerable overlap between the two proceedings. Relying
on the decision by Justice Allan Lutfy (as he then was) in NFC Canada Ltd.
v. Canada (Attorney General) (1999), 87 A.C.W.S.(3d) 686, he
found that it was preferable to stay the investigation of the complaint pending
the results of the civil proceeding. The essential part of his reasons in this
regard can be found in the following paragraph:
[TRANSLATION]
Given the considerable overlap between
the allegations and the questions of fact raised in the complaint filed with SIRC
and the amended motion instituting proceedings filed in the Superior Court of
Québec, I believe that a stay of SIRC’s investigation into the complaint would
be the best solution in the circumstances. This would prevent the duplicity of
proceedings and evidence. A stay of the investigation would also prevent
contradictory judgments from being rendered regarding the allegations and
questions of fact, which could bring the administration of justice into
disrepute.
III. Issues
[15]
This
application essentially raises two issues:
A. Did the Security
Intelligence Review Committee have the power to stay its investigation?
B. In the event that
the Committee has such power, did it err in the exercise of its discretion?
IV. Analysis
[16]
At the
outset, it is important to specify that only the Attorney General of Canada may
be designated as respondent in this proceeding, in accordance with Rules 303(1)(a)
and (2) of the Federal Courts Rules (SOR/98-106). Consequently, SIRC
and CSIS must be struck from the style of cause in this case.
[17]
As regards
the applicable standard of review, a distinction must be made between the first
and second issue. Concerning the question of whether SIRC was empowered to
suspend the investigation, it seems to me that the relevant standard is
undoubtedly correctness. Regardless of whether this question is characterized
as one of jurisdiction or as one of law, the result would be the same. If it is
a question of jurisdiction, within the narrow sense intended by the Supreme
Court in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 59, there is no
doubt that the correctness standard must be applied. This seems to me to be the
situation here, since SIRC was first required to determine whether it had
jurisdiction to order a stay. But even supposing that this is a question of
law, the same standard must apply given that it is a question of general
interest that has nothing to do with the expertise of SIRC’s members.
[18]
The issue
of whether SIRC was right to stay its investigation is another story. This is
undeniably a question of mixed fact and law, given that it requires the
application of legal precedents to the specific circumstances of this case.
This type of question always calls for the application of the reasonableness
standard.
A. Did the Security Intelligence Review Committee
have the power to stay its investigation?
[19]
The
applicant claimed that the Act did not allow SIRC to stay the investigation of
a complaint. Relying on sections 38 and 41 of the Act, he argued that the
Committee has no choice but to dismiss the complaint or proceed with the
investigation if the complaint is not trivial, frivolous, vexatious or made in
bad faith.
[20]
It does
not appear to me that this argument can be accepted. While it is true that the
Act, unlike the Federal Courts Act (R.S. 1985, c. F-7, s. 50) and the Quebec Code of Civil Procedure,
R.S.Q., c. C-25 (arts. 271-273), does not explicitly provide that SIRC may
suspend an investigation, section 39 confers on the Committee in very broad
terms the power to determine its own procedure. This provision reads as
follows:
|
Committee
procedures
39.
(1) Subject
to this Act, the Review Committee may determine the procedure to be followed
in the performance of any of its duties or functions.
|
Procédure
39.
(1) Sous
réserve des autres dispositions de la présente loi, le comité de surveillance
peut déterminer la procédure à suivre dans l’exercice de ses fonctions.
|
[21]
This
provision, which is formulated in a very general way, must be interpreted in broad and liberal
manner and clearly provides that SIRC is entitled to decide how to conduct its
investigations. It is entirely consistent with the broad powers of
administrative tribunals in procedural matters. Moreover, the Supreme Court has
determined that an administrative tribunal has the inherent power to adjourn a
proceeding:
We are dealing here
with the powers of an administrative tribunal in relation to its procedures. As
a general rule, these tribunals are considered to be masters in their own
house. In the absence of specific rules laid down by statute or
regulation, they control their own procedures subject to the proviso that they
comply with the rules of fairness and, where they exercise judicial or
quasi-judicial functions, the rules of natural justice. Adjournment of their
proceedings is very much in their discretion.
Prassad v. Canada (Minister of Employment and Immigration), [1989] 1 S.C.R. 560, at para.
16
[22]
It is true
that in this matter, SIRC chose to stay the investigation rather than adjourn
it. But this difference seems secondary to me. Not only is the result
substantially the same in both cases, but also these are both procedural
mechanisms that an administrative tribunal may use to manage its cases. These
powers seem to me to be essential to the proper administration of justice and
must therefore be part of the tools available to all administrative tribunals
in managing its cases. I therefore have no hesitation in finding that SIRC was
authorized to stay the investigation of the complaint filed by the applicant.
B. In the event that the Committee has such power,
did it err in the exercise of its discretion?
[23]
The
applicant’s counsel argued that SIRC should have applied the tests developed in
the case law on stays of execution or suspension of proceedings, namely, the
existence of a serious question, evidence of irreparable harm and the balance
of inconvenience: R.J.R.- Macdonald Inc. v. Canada (Attorney
General), [1994] 1 S.C.R. 311; Manitoba (Attorney General) v.
Metropolitan Stores Ltd., [1987] 1 S.C.R. 110. In response, counsel for
the respondent argued that the applicant’s proceeding amounted in fact to a mandamus,
in that it basically required SIRC to conclude its investigation. Relying on
the case law in this area, he therefore claimed that the applicant had to show
that the mandamus was the only adequate remedy available, that he had a
clear right to have the investigation continued, that the duty was not
discretionary in nature and that his application to continue the investigation
resulted in a refusal: Karavos v. The City of Toronto, [1948] O.W.N. 17 (Ont. C.A.), J. M. O’Grady v. Baron
George Whyte, [1983] 1 F.C. 719; Apotex Inc. v. Canada (Attorney
General), [1994] 1 F.C. 742; [1993] F.C.J. No. 1098 (C.A.).
[24]
These two
approaches appear to me to be flawed for the following reasons. Even though I
am willing to recognize that administrative tribunals have a certain amount of autonomy
in managing their cases and proceedings, as the respondent has invited me to
do, this discretion must be exercised judicially, that is, in compliance with
the statutes or regulations governing them as well as with the purpose for
which they were created. From this perspective, it matters little whether a tribunal
chooses to formally suspend a proceeding or adjourn it sine die; form
must not be elevated over substance. In both cases, the tribunal makes a
decision, and the Court may be called upon to review its lawfulness. Each time
that an application for judicial review is allowed, the administrative body is
required to comply with the Court’s decision; in the event that the stay of
proceedings ordered by SIRC is set aside, the Committee will be obliged to
proceed with its investigation without it being necessary for the applicant to seek
a mandamus to compel the Committee to comply with the Court’s decision.
[25]
Nor am I
satisfied that the tests developed in the case law on stays and injunctions
apply here. We must not lose sight of the fact that the Committee’s mandate is
not to make decisions, but rather to make recommendations further to its investigations
of the complaints submitted to it: see Act, s. 52. The objective of a stay of
proceedings or an injunction is to maintain the status quo between the parties
until each party’s respective rights have been definitively determined. SIRC’s
investigation does not fall into this reasoning.
[26]
Moreover,
a stay application of the type examined by the Supreme Court in RJR-
MacDonald and Metropolitan Stores, above, usually seeks to have a Court
order an administrative body, tribunal or public employee to suspend the processing
of a file or the enforcement of a decision until the validity of the law or
decision underlying the action has been determined. In this case, the Superior
Court’s jurisdiction in regard to the motion instituting proceedings filed by
the applicant has not been called into question. Moreover, the respondents did
not ask SIRC to stay its investigation until the Federal Court ruled on the
issue of whether the risk of contradictory decisions should result in the
postponement of the investigation. It is SIRC itself that made this decision,
and this is the decision under review. The tests applicable to a stay application
cannot guide this Court in its review of the decision made by the Committee to
wait for the Superior Court’s decision before processing the applicant’s
complaint.
[27]
In short,
I am of the opinion that we should instead review the reasons given by SIRC to
stay its investigation in order to assess their reasonableness in light of its
mandate and powers and the more general purpose of the Act. In this case, SIRC’s
reason for staying the investigation of the applicant’s complaint is basically prompted
by a concern to avoid duplicity of proceedings, with the resulting risk of
contradictory judgments.
[28]
It is
worth repeating that SIRC, unlike the Superior Court, does not make judicial
decisions and does not have the power to order the respondent to compensate the
applicant or take any measure whatever. It is authorized only to make
recommendations to the Minister to ensure that CSIS carries out its mandate in
accordance with the laws governing it. Consequently, there is, properly
speaking, no risk of contradictory “decisions”, since only the Superior Court
is authorized to make a decision that is enforceable on the parties. More
fundamentally, the Committee’s mission is systemic and consists not in giving redress
to an individual who may have been injured by the Service’s actions, but rather
in ensuring that such behaviour does not recur in future. Section 40 of the Act
specifies that SIRC’s mandate consists in “…ensuring
that the activities of the Service are carried out in accordance with this Act,
the regulations and directions issued by the Minister under subsection 6(2) and
that the activities do not involve any unreasonable or unnecessary exercise by
the Service of any of its powers…”. Conversely, the Superior Court does not
have the power to intervene in the management and operation of CSIS, and can
only grant remedies on a case-by-case basis where evidence of a civil fault or
damage has been established.
[29]
This
dichotomy between the respective roles of the Superior Court and SIRC merely
illustrates a more general principle, namely, that the same facts may give rise
to different causes of action. In this regard, the Supreme Court wrote the
following in Rocois Construction Inc. v. Québec Ready Mix Inc.,
[1990] 2 S.C.R. 440, at paras. 24-25:
First, it is clear that a body of facts cannot in itself constitute
a cause of action. It is the legal characterization given to it which
makes it, in certain cases, a source of obligations. A fact taken by
itself apart from any notion of legal obligations has no meaning in itself and
cannot be a cause; it only becomes a legal fact when it is characterized in
accordance with some rule of law. The same body of facts may well be
characterized in a number of ways and give rise to completely separate
causes. For example, the same act may be characterized as murder in one
case and as civil fault in another.
…
As a general rule, the same body of facts can thus give rise
to as many causes of action as there are legal characterizations on which a
proceeding can be based.
[30]
Thus, an
employment contract may give rise to an administrative proceeding (grievance)
and a civil action for wrongful dismissal (see Danyluk v. Ainsworth
Technologies Inc., 2001 SCC 44, [2001] S.C.J. No. 46 at para. 54), a police
officer may be the subject of a disciplinary complaint and criminal proceedings
(R. v. Wigglesworth, [1987] 2 S.C.R. 541), and a sexual
assault of a minor may give rise to criminal proceedings by the Attorney
General and civil proceedings by the Director of Youth Protection.
[31]
In fact,
the case law teaches that a criminal proceeding does not automatically have the
effect of staying civil proceedings concerning similar facts. In each case, it
is up to the petitioner to show that his or her right to full answer and defence
would be compromised if the civil proceeding were to continue before the criminal
trial is completed: see, for example, Falloncrest Financial Corp. v. Ontario
and Nash v. Ontario, [1995] O.J. No. 1931 (Ont. C.A.);
Kolomeir v. L.J. Forget et Co. Ltd., [1972] C.A. 422; [1971] J.Q. No. 19 (C.A.Q.).
[32]
The same
is true when the same facts are the source of a civil proceeding and a
disciplinary complaint. The courts have recognized on many occasions that both
proceedings may be heard at the same time, since they do not have the same
purpose and do not give rise to the same conclusions. The following excerpt
from a decision rendered by the Tribunal des professions du Québec clearly
illustrates this principle:
[TRANSLATION]
17. Contrary to what the petitioner is
claiming, the complainant’s proceedings, even if based on the same facts, are not
likely to result in contradictory judgments because the purpose and scope of
the proceedings are very different, with one potentially giving rise to, among
other things, monetary compensation in favour of the respondent, and the other
not.
18. In the civil case, it must be remembered
that the Superior Court judge will re-establish the parties’ rights by, among
other things, a monetary award in favour of the complainant if the judge
believes that she has demonstrated that she has been harmed because of the wrongful
actions of the petitioner. However, the disciplinary committee will, for the
same actions, impose the appropriate sanction or sanctions that are likely to protect
the public in the future by dissuading the petitioner from starting again and
the other members of the profession from taking similar actions. The purpose of
the complainant’s applications is therefore not the same and, consequently, the
alleged facts, if proven, may be interpreted differently depending on the
purpose or scope of the disputes between these same parties.
Feldman v. Barreau, 2004 QCTP 71,
[2004] D.T.P.Q. No. 71
See also: Boulet v. Ingénieurs
(Ordre professionnel des), 2005 QCTP 124, [2005] D.T.P.Q. No. 124
[33]
The same
logic must apply, a fortiori, when the body responsible for
investigating does not make a decision, as in the case of a disciplinary
committee, but can only make recommendations, as in SIRC’s case. The latter
must avoid making findings akin to legal liability on the part of CSIS, since
that is not its mandate. This is a common characteristic of all commissions of
inquiry. However, the Superior Court is required to decide the respondent’s
legal liability, and must determine whether fault, damage and a causal link
have been proved.
[34]
What is
more, the evidence to be submitted to SIRC and the Superior Court will
undoubtedly be different. Section 39 of the Act authorizes the Committee to
have access to all relevant evidence; however, the evidence that the applicant
may submit to the Superior Court will be limited by the provisions of the Canada
Evidence Act (R.S., 1985, c. C-5) and national security
prerogatives.
[35]
For all of
the foregoing reasons, I am therefore of the opinion that this application for
judicial review must be allowed. For the reasons given in the foregoing
paragraphs, SIRC could not reasonably find that there was a risk of
contradictory judgments in the event that it decided not to stay its
investigation.
ORDER
THE COURT ORDERS that the application for judicial
review be allowed, and that SIRC’s decision to stay its investigation of the
applicant’s complaint against CSIS pending the Superior Court of Québec’s final
decision be set aside. With costs to the applicant.
“Yves
de Montigny”
Certified
true translation
Susan
Deichert, LLB
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