Docket: T-2126-14
Citation:
2015 FC 402
Ottawa, Ontario, March 30, 2015
PRESENT: The Honourable Mr. Justice Manson
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BETWEEN:
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STANLEY
HOWARD TOMCHIN
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Plaintiff
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and
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HER
MAJESTY THE QUEEN AND THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Defendants
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ORDER AND REASONS
[1]
This is a motion by the Defendants for an order
pursuant to Rules 8, 221 and 359 of the Federal Courts Rules,
SOR/98-106:
a. striking
out the Statement of Claim, filed October 16, 2014 herein, in its entirety
without leave to amend, on the basis that it does not disclose a reasonable
cause of action, that it is frivolous and vexatious and amounts to an abuse of
this Court’s process;
b. in
the alternative, an order extending the time allowed for service and filing of
the Statement of Defence herein for a period of 30 days from the date of the
Court’s order in the within motion;
c. amending
the style of cause to remove “The Minister of Public Safety and Emergency
Preparedness” as a Defendant; and
d. such
further and other relief as to this Honourable Court may seem just.
[2]
The Plaintiff seeks damages from the Defendants
for alleged breaches of his rights under sections 7, 8, 13, and 24 of the Canadian
Charter of Rights and Freedoms [the Charter].
[3]
This motion is granted, for the reasons that
follow.
I.
Background Facts
[4]
The Plaintiff is a citizen of the United States.
He has no status in Canada.
[5]
In October 2011, the Plaintiff was criminally
indicted in New York State on numerous felony counts, including making illicit
gains and money laundering, in relation to the Plaintiff’s involvement in an
organized on-line gambling (bookmaking) enterprise. The Plaintiff entered into
a plea deal on July 29, 2014.
[6]
On June 1, 2014, the Plaintiff came to Vancouver
International Airport and sought to enter Canada as a visitor. On June 1 and 2,
2014, Canada Border Services Agency [CBSA] officers interviewed the Plaintiff
about whether he is inadmissible to Canada on the basis of criminality and/or
organized criminality [Admissibility Interview]. The Plaintiff has not been
interviewed by CBSA since.
[7]
The Plaintiff subsequently filed a verbatim
transcript of the Admissibility Interview in open court, in Federal Court
action T-1510-14.
[8]
On June 20, 2014, the Plaintiff left Canada.
[9]
On June 30, 2014, the Plaintiff filed a
Statement of Claim under Federal Court registry file number T-1510-14.
[10]
On September 4, 2014, Prothonotary Lafrenière
ordered the motion for document disclosure adjourned pending a decision on the
Defendants’ motion to strike.
[11]
On October 2, 2014, the Honourable Justice
Mactavish allowed the Defendants’ motion to strike, without leave to amend,
with costs. Justice Mactavish decided, inter alia, that this action
appears to be in its very early stages, and the Plaintiff has not identified
any limitation period or other impediment that would preclude him from
commencing a fresh action against the proper Defendants, and that little
prejudice would be suffered by the Plaintiff if the claim were struck, without
leave to amend, as he would be at liberty to renew his request for
interlocutory relief in the context of a properly constituted action.
[12]
On October 16, 2014, the Plaintiff filed the
within Statement of Claim, under Federal Court number T-2126-14.
[13]
A side by side review of the Statements of Claim
in T-1510-14 and T-2126-14 reveals that they are virtually verbatim copies of
one another. While the Defendants’ names have changed and the Plaintiff’s new
claim omits extracts from case law and some evidentiary issues included in
T-1510-14, the claim contains essentially the same facts in support of the
alleged causes of action, and seeks the same relief.
II.
Preliminary Objections
[14]
The Plaintiff argues the motion should be
dismissed because, in her October 2, 2014 Order, Justice Mactavish in striking
the Plaintiff’s original Statement of Claim filed, “necessarily and implicitly”
denied striking the pleadings now asserted in the Statement of Claim in this
action.
[15]
I disagree with the Plaintiff, as nowhere in
Justice Mactavish’s October 2nd Order did she indicate, directly or
implicitly, that she considered the causes of action then pleaded as proper or
improper. The pleading improperly named defendants and was struck in its
entirety, without leave to amend. The door was simply left open for the
Plaintiff to file a new action, if it could be properly pleaded, naming the
correct defendant and pleading material facts in support of alleged causes of
action, in accordance with Rule 174 of the Federal Courts Rules.
[16]
The Defendants also take issue with the naming
of “The Minister of Public Safety and Emergency Preparedness” as a defendant.
The proper defendant in an action against the federal crown is Her Majesty the
Queen. I agree, the Minister of Public Safety and Emergency Preparedness is not
a proper party in this case and should be deleted as a defendant.
III.
Current Pleading
[17]
The Plaintiff seeks damages under subsection
24(1) of the Charter for a breach of his section 7 and 13 Charter rights, to be
free from self-incrimination; his section 8 Charter rights, not to be subjected
to an unreasonable search and seizure by CBSA, and for permanent injunctive
relief prohibiting the Defendants from sharing any information compelled from
or seized from the Plaintiff under the compulsion powers of subsection 16(1) of
the Immigration and Refugee Protection Act, SC 2001, c-27 [IRPA], with
law enforcement agencies in Canada or abroad, including the Queen County
District Attorney in New York State and the New York Police Department [NYPD].
[18]
The Plaintiff also seeks:
•
an
Order requiring the Defendants and their agents to disclose to the Plaintiff’s
counsel the extent to which their investigation of the Plaintiff was commenced
as a result of information received from foreign law enforcement agencies,
including the Queens County District Attorney and the NYPD, and what
information compelled or evidence seized from the Plaintiff has already been
shared with these law enforcement authorities;
•
an
Order requiring the Defendants and their agents, including the CBSA, from
disclosing to any law enforcement authority in Canada, or abroad, including the
Queens County District Attorney in New York State and the NYPD, any evidence or
information acquired as a result of the CBSA’s search of the Plaintiff and his
personal property, including but not limited to, his luggage, his iphone or his
ipad;
•
costs
on a solicitor/own client basis.
[19]
In support of an interlocutory motion, the
Plaintiff filed a transcript from a June 10, 2014 hearing before the New York
State Court in his United States criminal proceeding. The transcript discloses
that:
•
the
New York State District Attorney has not received any incriminating compelled
information from the CBSA, and will not seek to reply on such against the
Plaintiff in any criminal proceedings; and
•
the
New York State Court will not permit reliance on such information in the
criminal proceedings against the Plaintiff, in any event.
[20]
The Defendants’ motion to strike is based on the
facts that:
a.
the
Statement of Claim is incurably deficient and not a proper pleading in form or
function;
b. the
Statement of Claim lacks particulars and fails to prove a breach of Charter
rights against self-incrimination and/or unreasonable search and seizure;
c. the
Statement of Claim is comprised largely of opinion, argument, and unsupported
allegations of “ulterior motives” and bad faith by the Defendants.
IV.
Principles on Motions to Strike
[21]
In order to strike a pleading on the ground that
it does not disclose a reasonable cause of action, those allegations that are
properly pleaded as concise material facts and are capable of being proved must
be taken as true (Hunt v Carey Canada Inc, [1990] 2 S.C.R. 959; Federal
Court Rules, Rule 174). However, that rule does not apply to allegations
based on assumptions and speculation (Operation Dismantle Inc v Canada,
[1985] 1 S.C.R. 441 at para 27).
[22]
As well, any pleading of misrepresentation,
fraud, malice or fraudulent intent must provide particulars of each and every
allegation; bald allegations of bad faith, ulterior motives or ultra vires
activities is both “scandalous, frivolous and vexatious”, and an abuse of
process of this Court (Federal Court Rules, Rule 191; Merchant Law
Group v Canada (Revenue Agency), 2010 FCA 184 at paras 34-35).
[23]
Rule 221(2) of the Federal Court Rules
provides that no evidence shall be heard on a motion for an order under
subparagraph (1)(a). However, evidence may be admitted in support of a motion
to strike based on the other subparagraphs of Rule 221.
V.
Alleged violations of the Plaintiff’s right to
not self-incriminate: Section 7 and 13 Charter rights
[24]
The Defendants argue that paragraphs 29 to 44 of
the Statement of Claim – comprising the Plaintiff’s claims for breach of his
alleged section 7 and 13 Charter “right not to self-incriminate” – should be
struck in their entirety, without leave to amend. It is argued that they do not
disclose a reasonable cause of action, and are frivolous and vexatious.
[25]
The Plaintiff submits that the Defendants’
position fails for a number of reasons. First, the Defendants fail to address
the Plaintiff’s primary position, which is that the CBSA is ultra vires
of their governing legislation, in compelling the Plaintiff to give a
statement. Secondly, with respect to the Plaintiff’s claim that the
extra-territorial dissemination of his evidence also violates his section 7
Charter rights, the Defendants’ position in its Motion to Strike rests on a
misunderstanding of the principles that underlie the right to be free from
self-incrimination. Further, even if the Defendants’ position on the latter
point was accurate, as it pertains to the extra-territorial dissemination of
compelled evidence, the Defendants’ position in law has never been recognized
by a Canadian court and as such could never be said to establish that it is
plain and obvious that the Plaintiff’s claim discloses no reasonable cause of
action.
[26]
Protection against self-incrimination applies
only in respect of incriminating evidence. It does not apply in respect of any
and all compelled information. Evidence is only incriminating if it can be used
“to prove or assist in proving one or more of the
essential elements of the offence for which the witness is being [subsequently]
tried” (R v Nedelcu, 2012 SCC 59 at para 9 [Nedelcu]).
[27]
Moreover, neither section 7 nor section 13 of
the Charter operates as an absolute bar on sharing with law enforcement
officials information (incriminating or otherwise) obtained during an
administrative investigation. Information may be properly shared by an
administrative agency with criminal law enforcement in appropriate
circumstances. The Charter “right against self-incrimination” only constrains
the use that may be made of information in a subsequent proceeding
against the person concerned, and not the collection or sharing of that
information (R v Jarvis, 2002 SCC 73 at paras 95-98; Nedelcu,
above at paras 5-7).
[28]
As well, courts have recognized that Canadian
immigration officials necessarily communicate information obtained during
immigration examinations to law enforcement in the course of assessing whether
a foreign national may be inadmissible to Canada, including on security grounds
and/or as a result of serious criminality or organized criminality. As the
Ontario Superior Court noted in United States of America v Kissel, 2006
CanLII 47314 (ON SC) at para 152:
[C]ooperation and communication between
Canadian and American authorities with respect to a certain individual who is
sought for prosecution in the United States also does not, by itself, suggest
bad faith or improper motive. Indeed, such communication and cooperation
is necessary in order for Canadian authorities to successfully pursue the
objectives of Canadian immigration law.
See also: Froom v Canada (MCI), 2003 FC 1127 at paras
150-152; Halm v Canada (MCI), [1996] 1 FC 547 at p 13; R v Nagle,
2012 BCCA 373 at paras 34-36.
[29]
The Plaintiff’s alleged cause of action rests on
the allegation that CBSA officers were constitutionally prohibited from
communicating what the Plaintiff told them to foreign law enforcement
authorities.
[30]
This position is contrary to the explicit role
and jurisdiction of CBSA officers under the IRPA (sections 15, 18, 36, 37 and
44) and the Customs Act, RSC, 1985, c 1 (2nd Supp.) (section 107).
[31]
The IRPA mandates that foreign nationals seeking
to enter Canada cannot do so until after, inter alia, a CBSA officer has
determined that they are not inadmissible. Relevant IRPA inadmissibility
provisions to the case at bar include inadmissibility for criminality under
section 36, as a result of having committed an act that would be a crime in
Canada, and inadmissibility under section 27, for organized criminality as a
result of having engaged in money laundering.
[32]
Accordingly, I find no cause of action for
“sharing information obtained from a foreign national during an immigration
examination”, and paragraphs 29 to 44 of the Statement of Claim should be
struck.
[33]
Moreover, as pointed out by the Defendants, to
support the Plaintiff’s claim to his right against “self-incrimination”, he
bears the burden of proving, inter alia:
•
he
has provided some incriminating evidence in a proceeding in which he could not
refuse to answer; and
•
that
information has been used to incriminate the Plaintiff in another proceeding.
[34]
The Statement of Claim does not plead material
facts to support this claim; it does not identify any incriminating evidence
which the Plaintiff claims to have provided to CBSA during their examination of
the Plaintiff under the IRPA and Customs Act, nor does the Statement of
Claim plead material facts to show that any information the Plaintiff has
provided to CBSA has been used, or even could be used, to incriminate the
Plaintiff in another proceeding.
VI.
Alleged allegations of compulsion for ultra vires
purposes and bad faith
[35]
The Plaintiff states that the facts pleaded
support his claim that his section 7 Charter rights were violated by CBSA
officers on June 1, 2014, and in the days following, because those officers
were acting ultra vires of their statutory mandate. The Plaintiff was
detained at the Vancouver airport by CBSA, as a result of his outstanding US
indictment, by virtue of which he was inadmissible to Canada. While he could
have been allowed to withdraw his application to enter Canada, he was detained
by CBSA and interrogated about matters that were provided by foreign law
enforcement, and the CBSA then disseminated the evidence they compelled from
the Plaintiff to foreign law enforcement. It is the Plaintiff’s position that
the allegations of improper purpose are not speculative.
[36]
Further, the Plaintiff argues that in any event,
and even in the unlikely event that the CBSA was acting solely for valid
immigration purposes when they compelled the Plaintiff to answer their
questions about criminal allegations, they violated the Plaintiff’s section 7 Charter
rights when they disseminated his compelled evidence to foreign law enforcement
agencies.
[37]
While it is certainly open to this Court to
inquire whether the purpose of a government agency was lawful, and to determine
if the purpose to surrender a person as a fugitive criminal to a foreign state
may not be a legitimate exercise of the power of deportation, that is not
supported in the facts as pleaded in this case. Moreover, this is not an
extradition case, but a deportation matter and there is a fundamental
difference :
…Deportation
occurs when a state wishes to expel a person. Extradition occurs when a state
wishes to retrieve a person, and can only be carried out when a request for
extradition has been received. Canada cannot be precluded from taking steps to
deport an individual merely because the effect of deportation may be that the
individual faces greater sanctions in the country to which he is deported than
if he is extradited. Canada has no control over whether a foreign state wishes
a person extradited, and the Government of Canada cannot be precluded from
acting in the public interest to deport undesirable aliens.
Halm v Canada (Minister of Citizenship and Immigration), [1996] 1 FC 547 at pp 10-12
[38]
Throughout the Statement of Claim, the Plaintiff
alleges bad faith and ulterior motives on the part of the Defendants. However,
I agree with the Defendants that the allegations are purely speculative and
none of the statements are supported by the facts as pleaded. What the facts
show is nothing other than legitimate, intra vires reasons for the
Plaintiff’s interview, investigation and detention by CBSA.
[39]
As the Federal Court of Appeal held in Merchant
Law Group, these unsupported conclusions and speculative accusations are an
abusive and impermissible “fishing expedition”:
34 …When
pleading bad faith or abuse of power, it is not enough to assert, baldly,
conclusory phrases such as "deliberately or negligently,"
"callous disregard," or "by fraud and theft did steal": Zundel
v. Canada, 2005 FC 1612, 144 A.C.W.S. (3d) 635; Vojic v. Canada (M.N.R.),
[1987] 2 C.T.C. 203, 87 D.T.C. 5384 (F.C.A.). "The bare assertion of a
conclusion upon which the court is called upon to pronounce is not an
allegation of material fact": Canadian Olympic Association v. USA
Hockey, Inc. (1997), 74 C.P.R. (3d) 348, 72 A.C.W.S. (3d) 346 (F.C.T.D.).
Making bald, conclusory allegations without any evidentiary foundation is an
abuse of process: AstraZeneca Canada Inc. v. Novopharm Limited, 2010 FCA
112 at paragraph 5. If the requirement of pleading material facts did not exist
in Rule 174 or if courts did not enforce it according to its terms, parties
would be able to make the broadest, most sweeping allegations without evidence
and embark upon a fishing expedition. As this Court has said, "an action
at law is not a fishing expedition and a plaintiff who starts proceedings simply
in the hope that something will turn up abuses the court's process": Kastner
v Painblanc (1994), 58 C.P.R. (3d) 502, 176 N.R. 68 at paragraph 4
(F.C.A.).
[40]
The paragraphs relating to allegations of bad
faith in the Plaintiff’s Statement of Claim, paragraphs 3, 27, 44 and 47,
should be struck.
VII.
Alleged violation of the Plaintiff’s right to be
free from unreasonable search and seizure: section 8 Charter rights
[41]
Paragraphs 45-47 of the Statement of Claim
assert a claim for “violation of the right to be free from unreasonable search
and seizure”. This claim should be struck without leave to amend, as it is
based solely on speculation and is conclusory, without any material facts
pleaded in support.
[42]
The Plaintiff makes the following assertion, to
the effect that any search or seizure must necessarily have been ultra vires:
In the case at bar, the CBSA was acting ultra
vires this mandate in conducting searches for the purposes of assisting US
law enforcement. Accordingly, the search of the Plaintiff’s luggage, his phone
and computer were not authorized by law and the search was not conducted in a
reasonable matter having due regard to the circumstances in this case.
[43]
The Supreme Court of Canada has decided that
routine searches of a foreign national seeking entry to Canada and/or of his
luggage do not breach section 8 of the Charter. This principle extends to
(non-destructive) searches of the foreign-national’s computers and cell phones
(R v Simmons, [1988] 2 S.C.R. 495; R v Nagle, 2012 BCCA 373; R v
Leask, [2008] ONCJ 25; R v Saikaley, [2012] ONSC 6794).
[44]
Paragraphs 45 to 47 of the Statement of Claim
are struck.
VIII.
The right to section 24(1) Charter damages
[45]
In order to establish a valid claim for section
24(1) Charter damages, a plaintiff must establish that:
a. there
is a breach of his rights under the Charter; and
b. there
is a functional justification for an award of damages for breach of those
rights in the specific facts of the case (Vancouver (City) v Ward, 2010
SCC 27).
[46]
Paragraph 48 of the Statement of Claim is the
plea in support of the Plaintiff’s functional justification for Charter
damages. Given my finding of no material facts pleaded that support a breach of
the Plaintiff’s rights, and the conclusory nature of paragraph 48 without
material facts necessary to support the subsection 24(1) claim, this paragraph
is also struck.
[47]
The pleading as a whole is replete with opinion
and conclusory statements, devoid of the concise, material facts needed to
support a viable cause of action. I agree with the Defendants that the Statement
of Claim appears to have been filed for collateral purposes, in the hopes that
a fishing expedition may yield some claim of substance that may somehow support
the Plaintiff’s desire for a remedy against the Defendants. His position is
simply wrong (Kastner v Painblanc, [1994] FCJ No 1671 at para 4 (FCA)).
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