Date:
20130131
Docket:
T-811-12
Citation:
2013 FC 104
Ottawa, Ontario,
January 31, 2013
PRESENT: The
Honourable Mr. Justice Russell
BETWEEN:
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HAN LIN ZENG
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Applicant
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and
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THE ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
INTRODUCTION
[1]
This
is an application for judicial review pursuant to subsection 18.1 of the Federal
Courts Act, RSC 1985, c F-7 in respect of a request to the Prime
Minister of Canada by letter dated 27 February 2012 to express concern to
the Chinese government regarding the criminal proceedings taking place against
the Applicant in China. The Applicant is requesting an order of mandamus
to direct the Prime Minister of Canada, the Minister of Foreign Affairs or the
Minister of Citizenship, Immigration and Multiculturalism to make a decision in
regards to his request.
BACKGROUND
[2]
The
Applicant is a citizen of China. He is not, and has never been, a citizen or
permanent resident of Canada. He came to Canada as a visitor on 4 November 1999
after a failed business transaction in China resulted in two charges of
contract fraud being issued against him.
[3]
The
Applicant claimed refugee status in Canada on 12 January 2004 after being
arrested for overstaying his visa. The basis for his refugee claim was the
pending criminal charges against him, which he alleged would result in an
unfair trial, torture, inhuman prison conditions and the death penalty if he
was removed to China.
[4]
On
16 May 2007, the Refugee Protection Division of the Immigration and Refugee
Board refused the Applicant’s refugee claim and found that he was excluded from
refugee protection because there were serious reasons to believe that he had
committed a serious non-political crime prior to his entry into Canada.
[5]
Leave
was granted for the Applicant to have the RPD’s decision judicially reviewed.
Justice John O’Keefe refused the application (see Zeng v Canada (Minister of Citizenship and Immigration), 2008 FC 956). Justice O’Keefe specifically
found that section 7 of the Charter was not engaged by the decision to exclude
the Applicant from refugee protection.
[6]
The
Applicant then applied for a Pre-Removal Risk Assessment (PRRA), and on 31
March 2010 a PRRA officer determined that the Applicant was not at risk in China. The Applicant sought judicial review of that decision; the application was granted
by consent and the PRRA was considered by a different officer on 21 January
2011. Again the PRRA officer concluded that the Applicant was not at risk. In
particular, the PRRA officer concluded that there was no evidence the Applicant
would be a victim of a predetermined verdict, the prison conditions he would be
exposed to in China would not constitute cruel and unusual punishment, and the
Applicant would not face the risk of the death penalty.
[7]
On
10 February 2011, the Applicant filed an application for leave and judicial
review of the second PRRA application, which was dismissed. He filed a motion
for a stay of his removal on 14 February 2011, which was dismissed on 16
February 2011. Applicant’s counsel wrote to the Chief Justice of the Federal
Court requesting reconsideration of the decision dismissing the stay motion;
the Court advised the Applicant within a matter of hours that it would not
reconsider the stay motion.
[8]
The
Applicant was removed from Canada on 16 February 2011 and his application for
leave and judicial review of the second PRRA decision was dismissed on 11 April
2011.
[9]
Upon
his return to China, the Applicant was tried and convicted of contract fraud.
The Applicant says that during his detention prior to trial he was denied
contact with his family and medication for his diabetes, and he only had
limited contact with his counsel. He was only given notice of the date and the
trial and the evidence that would be used against him nine days before the
trial began. The Applicant says that none of the witnesses were available for
cross-examination, and that one of the witnesses recanted his testimony after
the trial.
[10]
The
Applicant has also produced a letter titled “Legal Opinion” written by 21 legal
scholars in China. It is available on page 48 of the Applicant’s Record. This
letter refers to a variety of factors which purportedly demonstrate the
Applicant’s innocence, the ultimate conclusion being that there is no legitimate
legal basis for the finding that the Applicant committed contract fraud.
[11]
On
20 January 2012, the Applicant was convicted and sentenced to fifteen years in
prison by the Chengdu City Intermediate People’s Court of Sichuan Province. On
21 January 2012, he appealed his conviction to the Sichuan Higher People’s
Court; this appeal was dismissed on 13 February 2012. The Applicant filed
a further appeal to the Beijing Supreme People’s Court on 22 May 2012.
[12]
On
27 February 2012, Daniel Kingwell, the Applicant’s former counsel, sent a
letter to Prime Minister Stephen Harper asking the Canadian government to
express concern to the Chinese government about the criminal proceedings
against the Applicant. This letter is found on page 59 of the Applicant’s
Record. The letter asserts that the Applicant is being denied his basic human
rights. Mr. Kingwell states that the following has occurred:
•
Denial
of contact with family;
•
Denial
of medical treatment;
•
Denial
of counsel;
•
Short
notice of trial;
•
Closed
trial;
•
Closed
decision;
•
Unlawful
decision;
•
Suppression
of professors’ opinion;
•
Obstruction
of appeal;
•
Recanting
of prosecution witness testimony.
[13]
On
29 February 2012, the Executive Correspondence Officer for the Office of the
Prime Minister responded to Mr. Kingwell’s letter, stating that his comments
have been reviewed and sent to the Minister of Foreign Affairs and the Minister
of Citizenship, Immigration and Multiculturalism, so that they be made aware of
the Applicant’s continuing interest in this matter.
[14]
On
5 March 2012, seven days after sending the initial letter to the Prime
Minister’s Officer, the Applicant filed an application seeking an order of
mandamus to compel a response to Mr. Kingwell’s letter. The Applicant states
that there have been no communications from the two Ministers or the Office of
the Prime Minister since the letter dated 29 February 2012 and, considering the
urgency of his matter, he seeks to compel a response by way of an order of mandamus.
ISSUES
[15]
The
Applicant raises the following issue in this application:
i.
Has
the Applicant met all the conditions for an issuance of mandamus?
[16]
The
Respondent raises the following preliminary issue to the issue raised by the
Applicant:
i.
Is
the exercise of this prerogative power reviewable?
ARGUMENTS
The
Applicant
[17]
The
Applicant submits that the conditions precedent for a writ of mandamus
were set out in Conille v Canada (Minister of Citizenship and Immigration),
[1999] 2 FC 33 (TD) as being:
a.
There
is a public legal duty to act;
b.
The
duty must be owed to the Applicant;
c.
There
is a clear right to the performance of the duty and, in particular:
1.
The
Applicant has satisfied all conditions precedent giving rise to the duty;
2.
There
was a prior demand for performance of the duty, a reasonable time to comply
with the demand, and a subsequent refusal which can be either expressed or
implied, e.g. unreasonable delay; and
d.
There
is no other adequate remedy.
Public Legal Duty to Act
[18]
The
Applicant points out that Canada has signed and ratified the International
Covenant on Civil and Political Rights, Can TS 1976 No 47 (ICCPR).
Article 7 provides that “No one shall be subjected to torture or to cruel,
inhuman or degrading treatment or punishment.” Further, the United Nations Human
Rights Committee General Comment No. 20, October 3, 1992 states as follows:
In the view of the Committee, States parties must
not expose individuals to the danger of torture or cruel, inhuman or degrading
treatment or punishment upon return to another country by way of their
extradition, expulsion or refoulement. States parties should indicate in their
reports what measures they have adopted to that end.
[19]
The
Applicant submits that as a result of his refoulement he has suffered cruel,
inhuman and degrading treatment and punishment in China. He further submits that
an unfair trial leading to a fifteen year prison sentence where he is being
denied medical treatment for his diabetes is arbitrary punishment and cruel,
inhuman and degrading treatment.
[20]
Article
14 of the ICCPR says:
1. All persons shall be equal before the courts and
tribunals. In the determination of any criminal charge against him, or of his
rights and obligations in a suit at law, everyone shall be entitled to a fair
and public hearing by a competent, independent and impartial tribunal
established by law. The press and the public may be excluded from all or part
of a trial for reasons of morals, public order (ordre public) or national
security in a democratic society, or when the interest of the private lives of
the parties so requires, or to the extent strictly necessary in the opinion of
the court in special circumstances where publicity would prejudice the
interests of justice; but any judgement rendered in a criminal case or in a
suit at law shall be made public except where the interest of juvenile persons
otherwise requires or the proceedings concern matrimonial disputes or the
guardianship of children.
2. Everyone charged with a criminal offence shall
have the right to be presumed innocent until proved guilty according to law.
3. In the determination of any criminal charge
against him, everyone shall be entitled to the following minimum guarantees, in
full equality:
(a) To be informed promptly and in detail in a
language which he understands of the nature and cause of the charge against
him;
(b) To have adequate time and facilities for the
preparation of his defence and to communicate with counsel of his own choosing;
(c) To be tried without undue delay;
(d) To be tried in his presence, and to defend
himself in person or through legal assistance of his own choosing; to be
informed, if he does not have legal assistance, of this right; and to have
legal assistance assigned to him, in any case where the interests of justice so
require, and without payment by him in any such case if he does not have
sufficient means to pay for it;
(e) To examine, or have examined, the witnesses
against him and to obtain the attendance and examination of witnesses on his
behalf under the same conditions as witnesses against him;
(f) To have the free assistance of an interpreter if
he cannot understand or speak the language used in court;
(g) Not to be compelled to testify against himself
or to confess guilt.
4. In the case of juvenile persons, the procedure
shall be such as will take account of their age and the desirability of
promoting their rehabilitation.
5. Everyone convicted of a crime shall have the
right to his conviction and sentence being reviewed by a higher tribunal
according to law.
[21]
The
Applicant states that, in his case, all the provisions in the above noted
Article have been violated in one way or another, as detailed in the letter
from Mr. Kingwell. He submits that Canada has an obligation not to allow
someone to be subject to cruel, inhuman or degrading treatment or punishment,
and has a duty to the Applicant to step in and mitigate the breach of this
Article.
[22]
The
Applicant also submits that section 7 of the Charter of Rights and Freedoms
[Charter] provides a guarantee of life, liberty and security of the person that
applies to non-Canadians who face the risk of cruel, inhuman or degrading
treatment or punishment if returned abroad (Suresh v Canada (Minister of
Citizenship and Immigration), 2002 SCC 1 [Suresh], United States
of America v Burns, 2001 SCC 7 [Burns]). The Applicant states that
he is owed the protection of section 7 of the Charter, and his return to China entitles him to ask the Canadian government to seek to mitigate the violation of his
rights.
Duty to the Applicant
[23]
The
Applicant points out that Canada has also signed and ratified the Optional
Protocol to the International Covenant on Civil and Political Rights, G.A.
res. 2200A (XXI), 21 UN GAOR Supp. (No 16) at 59, UN Doc. A/6316 (1966), 999
UNTS 302, entered into force March 23, 1976. It provides as follows:
Article I
A State Party to the Covenant that becomes a Party
to the present Protocol recognizes the competence of the Committee to receive
and consider communications from individuals subject to its jurisdiction who
claim to be victims of a violation by that State Party of any of the rights set
forth in the Covenant. No communication shall be received by the Committee if
it concerns a State Party to the Covenant which is not a Party to the present
Protocol.
Article 2
Subject to the provisions of article 1, individuals
who claim that any of their rights enumerated in the Covenant have been
violated and who have exhausted all available domestic remedies may submit a
written communication to the Committee for consideration.
[…]
Article 4
1. Subject to the provisions of article 3, the
Committee shall bring any communications submitted to it under the present
Protocol to the attention of the State Party to the present Protocol alleged to
be violating any provision of the Covenant.
2. Within six months, the receiving State shall
submit to the Committee written explanations or statements clarifying the
matter and the remedy, if any, that may have been taken by that State.
Article 5
1. The Committee shall consider communications
received under the present Protocol in the light of all written information
made available to it by the individual and by the State Party concerned.
2. The Committee shall not consider any
communication from an individual unless it has ascertained that:
(a) The same matter is not being examined under another
procedure of international investigation or settlement;
(b) The individual has exhausted all available
domestic remedies. This shall not be the rule where the application of the
remedies is unreasonably prolonged.
3. The Committee shall hold closed meetings when
examining communications under the present Protocol.
4. The Committee shall forward its views to the
State Party concerned and to the individual.
[…]
[24]
Based
on the above, the Applicant submits that Canada is accountable internationally
to the Applicant for his return to cruel, inhuman or degrading treatment or
punishment. Canada has a duty to mitigate the harm to the Applicant by making
the efforts requested in the letter of Mr. Kingwell. Further, the Applicant
submits that he is owed a duty under section 7 of the Charter, as previously
discussed.
Conditions Precedent to the Duty
[25]
The
Applicant submits that the only condition precedent to the duty owed to the
Applicant is a prior demand, which was made in the letter of Mr. Kingwell.
Reasonable Time
[26]
Although
the request for action was made fairly recently, the Applicant submits that the
matter is urgent. The Applicant’s conviction is presently going through the
appeal process in China, and the Applicant submits that it is important that
one of the Ministers react to China before the appeal process has been
exhausted. The Applicant also needs proper medical treatment as soon as
possible.
Implied or Express Refusal
[27]
Although
there has been no express refusal, the Applicant submits that the delay in
response is an effective refusal in light of the urgency of the matter and the
impending appeal deadlines in China.
[28]
Based
on the above, the Applicant requests that an order of mandamus be issued
requiring the Prime Minister to express concern to the Chinese authorities
regarding the ongoing criminal proceedings against the Applicant. The Applicant
does not request costs.
The Respondent
Exercise
of Prerogative Power Not Reviewable Absent a Charter Violation
[29]
The
Respondent submits that the Canadian government has already responded to Mr.
Kingwell’s letter. Specifically, by letter dated 29 February 2012, an Executive
Correspondence Officer acknowledged receipt of the letter, and advised that the
comments had been reviewed and forwarded to the Minister of Foreign Affairs and
the Minister of Citizenship, Immigration and Multiculturalism so that they
could be made aware of the Applicant’s continuing interest in the matter.
[30]
The
Applicant has not provided any evidence to indicate an obligation on the
government of Canada to respond to any letter sent to the Office of the Prime
Minister. The Respondent submits that, given the Applicant has already received
a response to the letter dated 27 February 2012, his application for a writ of mandamus
to compel a response should be dismissed outright, with costs.
[31]
Rather
than simply seeking a response to the 27 February 2012 letter, what the
Applicant’s written submissions demonstrate is that he is truly seeking a writ
of mandamus to compel the Canadian government to make representations to
the Chinese government concerning the ongoing criminal proceedings against him
in China.
[32]
The
Respondent submits that the power of the courts to review the exercise of a
prerogative power is limited. Unless there has been a breach of the Charter or
other constitutional norms, the government’s exercise of its prerogative powers
is not reviewable (Canada (Prime Minister) v Khadr, 2010 SCC 3 [Khadr]
at paragraph 35).
i) No Breach of
the Charter by the Canadian Government
[33]
An
applicant seeking a Charter remedy must prove, on a balance of probabilities,
that a Charter violation has occurred. To establish a breach of his section 7
rights under the Charter, the Applicant must demonstrate that there has been a
denial of his liberty and security of the person by Canadian officials and that
this deprivation is not in accordance with the principles of fundamental
justice (Khadr at paragraphs 21-22). The Applicant has not provided any
evidence that there has been a Charter violation by Canadian officials.
[34]
The
Respondent states that the Applicant’s deportation fully accorded with the
principles of fundamental justice. The Applicant availed himself of the full
panoply of review processes available to him in relation to his refugee claim
and removal, and the various decisions were judicially determined to have been
decided fairly. There was no evidence that he might face the death penalty or
torture upon his return to China; nor has he alleged that he currently faces
either of these risks. It was determined in relation to his motion for a stay
of removal that his removal would not violate section 7 of the Charter.
Canadian officials were entitled to act on this Court’s determination and
remove the Applicant from Canada, which they did.
[35]
Additionally,
the Supreme Court of Canada determined in Lake v Canada (Minister of
Justice), 2008 SCC 23 at paragraph 48 that removal of a person to a lengthy
prison sentence is not a breach of section 7 of the Charter. Consequently, the
Respondent submits that the Applicant’s removal was in accordance with the
principles of fundamental justice.
ii) No Basis for
Post-Deportation Application of the Charter
[36]
To
support his allegation of a Charter violation, the Applicant relies on the
decisions in Burns and Suresh. The Respondent submits that both
these cases differ significantly from the present case. In both cases, there
was prima facie evidence that the person concerned would face the death
penalty or a risk of torture upon extradition or deportation, respectively. In
both cases, the person concerned was under the control of Canadian officials at
the time that the remedy was sought. In both cases, assurances could provide
effective protection against the prospective Charter breaches and it remained
within the government’s discretion at to whether or not further steps should be
taken.
[37]
In
the present case, the risk of the death penalty or torture is not alleged. The
Applicant is also not presently under the control of the Canadian government.
The Respondent submits that it would be a significant expansion on the
decisions in Burns and Suresh to suggest that these decisions
apply where there was no violation of section 7 of the Charter at the time of
deportation; after-the-fact knowledge of alleged trial unfairness in the
criminal proceedings in China does not make Canada a party to that alleged
unfairness. There could be no Charter breach in respect of the Applicant’s
complaints of post-deportation conduct by Chinese officials, such as a lack of
access to medical care and contact with his family, as the Charter does not
apply to matters outside Parliament’s authority.
[38]
In
R v Hape, 2007 SCC 26 [Hape], the Supreme Court of Canada set out
a two-part test for determining if a foreign activity falls under subsection
32(1) of the Charter and is therefore subject to Charter protection. The first
part of the test is that the conduct at issue must be that of a Canadian state
actor (Hape, at paragraph 113) – it clearly is not in this case. The
Applicant has advanced unsubstantiated complaints of lack of medical treatment
and trial unfairness, experienced entirely at the hands of the Chinese
government. There has been no participation in the alleged treatment by any
Canadian state actors.
[39]
There
is also no nexus between the alleged post-deportation breaches and Canada. In order to advance a section 7 right, one must establish a nexus to Canada by
being present in Canada, by there being criminal proceedings in Canada, or by
Canadian citizenship (Slahi v Canada (Minister of Justice), 2009 FC 160,
aff’d 2009 FCA 259 [Slahi] at paragraphs 47-48). In Slahi, Mr.
Slahi had spent time in Canada as a permanent resident, but this was an
insufficient nexus to bring him within the protection of section 7 of the
Charter (Slahi, at paragraphs 39-48).
[40]
In
the present case, the alleged breaches result from the Applicant’s detention in
China, by Chinese authorities as a result of Chinese legal proceedings. Thus,
even if there has been a refusal of medical treatment or trial unfairness as
alleged by the Applicant, which have not been established, the Respondent
submits there is no nexus to Canada.
iii) No Evidence
Establishing the Alleged Violation(s) of the Charter
[41]
Even
if the Applicant’s proposed expansion of the principles in Burns and Suresh
could be established, the Respondent submits that the Applicant has failed to
provide any sworn or admissible evidence in support of his allegations. The
“evidence” he has included with this application is almost entirely
inadmissible double hearsay. The Respondent submits that the Applicant has not
proven, on a balance of probabilities, that he has been subjected to cruel,
inhuman or degrading treatment or punishment by Chinese officials.
[42]
The
only sworn evidence is a three-paragraph affidavit by Ms. Wu, the Applicant’s
daughter-in-law. The only substantive evidence in the affidavit is that the
Applicant is a Chinese national now in detention in China and that the
Applicant’s lawyer has advised her that a second appeal from the Applicant’s
conviction is being prepared. None of the alleged section 7 breaches have been
put into evidence through Ms. Wu or any other witness.
[43]
One
of the documents submitted by the Applicant is a petition signed by a “panel of
Chinese legal experts.” However, there is no direct evidence from any of these
“legal experts,” nor is there any evidence of their credentials, their
expertise, how they came to know of the Applicant’s case, whether they were
paid to provide the opinion given, what evidence they reviewed in relation to
the Applicant’s case or how they obtained it. The Respondent says that in the
evidentiary vacuum provided by the Applicant, no such testing or weighing of
the evidence is possible.
[44]
The
Respondent also points out that in the letter written to the Prime Minister,
reference is made to a letter written by the Applicant to his family “pleading
for medication, a blanket, and a lawyer.” This letter, purported to have been
written by the Applicant and apparently alleging denial of medical treatment,
has not been put into evidence in this proceeding. The letter to the Prime
Minister also makes reference to alleged denials of counsel during the
Applicant’s criminal trial, yet no evidence has been provided from the lawyer
representing the Applicant in his criminal proceedings in China to confirm any of these alleged denials. Moreover, no evidence has been provided by
the author of the letter attesting to how he obtained the information about the
Applicant with respect to the alleged breaches described in his letter and his
belief therein.
[45]
The
Respondent submits that the Applicant has entirely failed to meet his burden of
proof. Given the evidentiary vacuum, no Charter breach can be made out. Absent
a Charter breach, this Court has no jurisdiction to review, comment on, or give
any direction with respect to the Crown’s prerogative over foreign affairs.
No
Case for Mandamus
i)
Test for Mandamus
[46]
The
criteria for issuance of a writ of mandamus were set out by the Federal
Court of Appeal in Apotex Inc v Canada (Attorney General), [1994] 1 FC
742 (CA), aff’d [1994] 3 S.C.R. 1100. All of the criteria set out in paragraph 45
of that decision must be satisfied before the Court will issue an order of mandamus.
In particular, the Respondent submits that the following criteria have not been
met in the present case:
1. There
must be a public legal duty to act…
2. The
duty must be owed to the applicant…
3. There
is a clear right to performance of that duty, in particular:
(a) the
applicant has satisfied all conditions precedent giving rise to the duty…
(b) there
was (i) a prior demand for performance of the duty; (ii) a reasonable time to
comply with the demand unless refused outright; and (iii) a subsequent refusal
which can be either expressed or implied, e.g. unreasonable delay…
[…]
6.
The order sought will be of some practical value or effect…
[…]
8. On a “balance of
convenience” an order in the nature of mandamus should (or should not) issue.
ii) No
Public Legal Duty to Act
[47]
As
set out above, the Respondent submits that the Applicant is trying to compel
something that falls squarely within the Crown’s prerogative power over foreign
affairs, and is not reviewable (Khadr, at paragraph 35). The Applicant
propounds the existence of a duty to mitigate alleged harm, but the lawful
deportation of the Applicant from Canada provides no foundation for
establishing a mandatory public legal duty to act. While the government
undoubtedly has the discretion to make representations in such circumstances,
there is no legal principle requiring it to do so.
[48]
There
are two hurdles the Applicant must clear before he can pass the first
requirement for mandamus. First, he must show that the Canadian
government breached his section 7 Charter rights. Second, he must demonstrate
that the remedy sought is not precluded by the fact that it touches on the
Crown’s prerogative power over foreign affairs.
[49]
For
the reasons already discussed, the Applicant has not demonstrated a Charter
breach by Canadian officials. Given that no other actions were taken by
Canadian officials and the Charter was not breached, there is no foundation for
establishing the requisite legal duty.
[50]
Further,
the remedy the Applicant seeks necessarily intrudes on the Crown’s prerogative
over foreign affairs. Even the limited remedy sought in the notice of application
– an order compelling a response to the request – intrudes on the Crown’s
prerogative over foreign affairs, as a decision on whether or not to make
representations is an exercise of the prerogative over foreign relations (Khadr,
at paragraph 35).
[51]
Courts
have a narrow power to “review and intervene on matters of foreign affairs to
ensure the constitutionality of executive action” (Khadr, at paragraph
38). As previously discussed, if there is no constitutional infringement then
the Court must not intervene.
[52]
As
in Khadr, the Applicant is not under the control of the Canadian
government, the likelihood that the proposed remedy would be effective is
unclear, and the impact on Canadian foreign relations cannot be properly
assessed by the Court. The record gives a necessarily incomplete view of the
range of considerations currently faced by the government in assessing the
Applicant’s request. Even in Khadr, where Canada was found to have
actively participated in the violation of the section 7 Charter rights of a
Canadian citizen, the Supreme Court still declined to give direction as to the
diplomatic steps required by Canada.
[53]
Thus,
even if the Applicant had established a breach of the Charter, which he has
not, the Respondent submits that an intrusion into the Crown’s foreign affairs
prerogative in these circumstances would not be appropriate.
[54]
The
Respondent submits that having failed to demonstrate a public legal duty to
act, the Applicant has failed to make out a claim for mandamus.
iii) No Duty Owed to the Applicant
[55]
The
Applicant purports to rely on ICCPR to establish that Canada owes a public legal duty to him. Article 2(1) of the ICCPR expressly limits Canada’s obligations to individuals present within its territorial jurisdiction. The
Applicant patently does not come within this class of individuals. Moreover,
all the duties that Canada did owe to him when he was in Canadian territory
were met through the deportation process. Thus, the Applicant submits there is
no duty to act owed to the Applicant under the ICCPR.
iv) No Right to Performance of
Alleged Duty
[56]
In
Conille, above, the Court noted that three requirements must be met if a
delay is to be considered unreasonable. These are stated at paragraph 23:
(1) the delay in question has been longer than the nature
of the process required, prima facie;
(2) the applicant and his counsel are not
responsible for the delay; and
(3) the authority responsible for the delay has not
provided satisfactory justification.
[57]
The
Respondent submits that, in this case, there is simply no issue relating to
delay, as there is no legal duty to act owed to the Applicant and thus no right
to performance of that duty. However, even if a duty was owed, the “delay” in
processing the Applicant’s request would nonetheless be reasonable. The Prime
Minister’s Officer responded two days after the request was made. Even if the
Court found a duty to provide a further response, the time that has passed
since the first response is not prima facie longer than reasonably
required by the nature of the process. Given that there has been no
unreasonable delay in replying to the Applicant’s request, there can be no
subsequent implied refusal by the Respondent.
v) Order Sought has no Practical
Value or Effect
[58]
As
previously stated, the Respondent asserts that the Applicant already received a
response by way of the 29 February 2012 letter from the Executive
Correspondence Officer. In any event, as the Canadian government is under no
duty to make the requested representations, a compelled response to the letter
in which he requests the Canadian government to do so could simply say “no.”
Such a response would have no practice value or effect.
[59]
Moreover,
the Respondent reiterates that the Applicant is a Chinese national under the
control of Chinese officials. This is unlike those cases where the Canadian
government seeks assurances prior to extraditing or deporting an individual. In
the circumstances of the present case, even if the Canadian government decided
to exercise its discretion to make representations to the Chinese authorities,
the likelihood that any representations would be effective in affecting the
fairness of the proceeding against the Applicant is unclear.
vi) Balance of Convenience Favours
Declining the Remedy
[60]
As
previously discussed, the Respondent submits that even directing the Crown to
provide a further response to the 27 February 2012 letter would inappropriately
impinge on matters of foreign affairs. The Applicant, a Chinese national, is in
effect asking the government of Canada to intervene in his criminal proceedings
in China. To set a precedent by granting such a remedy in the absence of a
Charter breach or a duty owed would erode the deference currently owed to the
foreign affairs prerogative and the expertise of the executive to make
decisions about foreign policy. The Respondent submits that public policy, the
limitations of the Court’s institutional competence, and the need to respect
the Crown’s prerogative over foreign affairs dictate that the balance of
convenience favours the Respondent.
Conclusion
[61]
For
all the above reasons, the Respondent submits that the Applicant has failed to
meet any of the criteria that must be satisfied before the Court will issue a
writ of mandamus. The Applicant is not entitled to the remedy sought in
his application for judicial review and this application should be dismissed
with costs.
ANALYSIS
[62]
This
application must fail for a number of reasons.
[63]
First
of all, the Applicant is seeking mandamus to order the Prime Minister of
Canada, the Minister of Foreign Affairs or the Minister of Citizenship,
Immigration and Multiculturalism to “answer the request of the applicant that
the Prime Minister express concern to Chinese authorities regarding the
criminal proceedings against the applicant.”
[64]
The
Applicant’s “request” to the Canadian government is found in Mr. Kingwell’s
letter of 27 February 2012. The request reads as follows:
We are writing you to request that the Canadian
government express concern to Chinese authorities regarding the ongoing
criminal proceedings against Han Lin Zeng.
[65]
The
letter contains no request to “answer the request.” The letter asks the
government of Canada to express concerns to Chinese authorities, not to reply
and confirm to the Applicant whether or not it was prepared to do this. In so
far as Mr. Kingwell’s letter required any response, it was contained in the
prompt reply from the Prime Minister’s office of 29 February 2012:
Please be assured that your comments have been
reviewed. I have taken the liberty of forwarding your correspondence to the
Honourable John Baird, Minister of Foreign Affairs, and to the Honourable Jason
Kenney, Minister of Citizenship, Immigration, and Multiculturalism, so that
they may be made aware of your continuing interest in this matter.
[66]
There
can be no public duty to act (in this case for the government to “answer the
request”) where there has been no request for an answer. The Applicant argues
that, by implication, Mr. Kingwell’s letter requests that the government reply
to let him know whether or not there will be an approach to the Chinese
authorities on his behalf. In my view, however, the letter simply reminds the
Prime Minister of what he has publicly said on the issue, and urges him to
express concern on behalf of the Applicant. The Applicant is told that his
letter has been reviewed and passed on to the relevant Ministers. There is no
implicit request for anything else.
[67]
There
is a variety of other reasons why mandamus is not available on these
facts. But, fundamentally, I do not see how the government of Canada can be ordered to do something that the Applicant did not request it to do. Had the
Applicant wanted a further response from the one set out in Mr. Kingwell’s
letter, there was nothing to stop him initiating some kind of follow-up. There
is no evidence before me that such a follow-up has been attempted.
[68]
If
the Applicant is, in reality, seeking mandamus to compel the government
to make representations on his behalf to Chinese officials (which he denies is
part of his request), this is not requested in this application and there is no
public duty on the government to act in this way.
[69]
The
Applicant illegally overstayed his visitor’s visa and had to be arrested by
Canadian authorities. He then availed himself of the full range of protections
that Canada affords to anyone who fears returning to their home country,
including judicial review by this Court. Before he was returned to China, the Applicant’s case was fully reviewed by immigration authorities and by the
Federal Court, and he was granted due process. His removal was entirely
legitimate and in accordance with Canadian law. It involved no breach of any
Charter or other right by Canadian officials, and took place in accordance with
the principles of fundamental justice.
[70]
What
the Applicant is attempting to do is secure to himself Charter and other rights
under Canadian law as a foreign national in China. The basis for this claim is
that he came to Canada, availed himself of Canadian protections, and was then
deported back to China. I know of no legal authority that gives the Applicant
legal rights in Canada in this situation. Justice O’Keefe has already ruled
that section 7 of the Charter was not directly engaged by the exclusion of the
Applicant from refugee protection. See Zeng, above, at paragraphs 69-74.
[71]
The
Applicant is no different from any other foreign national living in his own
country and facing legal proceedings in that country. He has no legal claim on Canada. Burns and Suresh have no application here because those were
pre-deportation cases, and the individuals concerned were under the control of Canada at the time they sought relief from the Court. Also, there is no Canadian state
actor in this case who has participated in, or condoned, any mistreatment the
Applicant may have suffered at the hands of Chinese officials. See Hape,
above.
[72]
As
the Respondent points out, in Slahi, above, Justice Edmond Blanchard
made it clear that in order to advance a section 7 Charter right, an applicant
must establish a nexus to Canada by being present in Canada, by there being
criminal proceedings in Canada, or by Canadian citizenship. The Applicant’s
only connection with Canada is that he came here as a visitor, remained here
illegally and then took full advantage of our refugee protection system, and was
then legally deported back to China. At present, he has no connection with Canada.
[73]
In
addition, there is no acceptable evidence before me that the Applicant is being
treated by Chinese officials in a way that would breach a Charter right, did
any such right exist. The Applicant has not proven, on a balance of
probabilities, that he has been subjected to cruel, inhuman or degrading
treatment or punishment by Chinese authorities. The only sworn direct evidence
I have before me on point is contained in the affidavit of Ms. Wu, the
Applicant’s daughter-in-law, and she tells us nothing about any breaches of due
process or bad treatment by the Chinese authorities. The Applicant seeks to
overcome this difficulty by suggesting that the quality of the evidence required
to establish human rights violations against him in China is not required when
all he is asking is that he receive a reply to his 27 February 2012 request.
However, in my view, the request for a reply does not in itself engage any
Charter rights on these facts.
[74]
All
of this means that, irrespective of whether the Applicant is seeking to compel
a further answer to his letter from the Canadian government, or to compel the
Canadian government to act by making representations to Chinese officials on
his behalf, the Applicant has established no public legal duty to act and no
Charter violation by Canadian state actors. Anything which Canada may choose to do on his behalf lies squarely within the Crown prerogative over
foreign affairs and, in this regard, where there is no constitutional or
Charter infringement, the Court cannot intervene. See Khadr, above, at
paragraphs 35-37.
[75]
Nor,
in my view, is the Applicant assisted by his attempts to invoke IRPA or the
ICCPL. The Applicant has been legally deported back to China and is no longer subject to IRPA; and the ICCPL only applies to Canada with respect to
“individuals within its territory and subject to its jurisdiction…” which the
Applicant clearly is not. There is no evidence to suggest that the Applicant
was not afforded his full rights under the ICCPL while he was within Canada’s territory and jurisdiction. In any event, the Applicant claims that all he is
asserting in this application is a right of reply to his letter from the
government of Canada. I do not see how this alleged right engages IRPA, ICCPL,
the Charter, or the Canadian constitution.
[76]
In
summary, the Applicant’s failure to request the specific reply he wishes to
have the Court order the government to now give him is itself sufficient
grounds to refuse mandamus. In addition, the Applicant has established
no Charter or constitutional violation by Canadian authorities, and Canada’s decision to do anything about the Applicant’s situation in China falls clearly within the
Crown prerogative and none of the exceptions to non-interference by the Court
(breach of Charter or constitution, breach of statute, or breach of legitimate
expectations) have been established.
JUDGMENT
THIS
COURT’S JUDGMENT is that
1.
The
application is dismissed.
“James Russell”
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