Docket: T-1513-14
Citation:
2016 FC 371
Ottawa, Ontario, April 1, 2016
PRESENT: The
Honourable Mr. Justice Gleeson
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BETWEEN:
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SAFWAN ALBATAL
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Applicant
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and
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THE
COMMISSIONER OF THE ROYAL CANADIAN MOUNTED POLICE
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Respondent
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JUDGMENT AND REASONS
[1]
The applicant seeks judicial review of a
decision by the Commissioner of the Royal Canadian Mounted Police [RCMP]
not to investigate the applicant’s complaint alleging corruption in the
Canadian Embassy in Berlin, Germany. The applicant seeks an order in the nature
of mandamus compelling the RCMP to initiate an investigation into the
complaint.
[2]
For the reasons that follow, the application is
dismissed, the applicant having failed to demonstrate that the RCMP has a duty
to investigate the complaint.
I.
Background
[3]
The applicant, Safwan Albatal, is a
self-represented litigant who was born in Damascus, Syria on March 23, 1971 and
is currently a resident of the City of Ottawa, Ontario.
[4]
In the evidence filed in support of this application,
Mr. Albatal recounts that he was in the process of applying to immigrate to
Canada through the Canadian Embassy in Berlin, Germany [the Embassy] while
residing in Germany. In November of 2002, Citizenship and Immigration Canada [CIC]
waived the need for an immigration interview. However, in December of 2003, CIC
contacted Mr. Albatal for an interview [the Interview].
[5]
Mr. Albatal attended the Embassy for the
Interview in March of 2004 where he was caught in the Embassy elevator for
approximately a half hour, an event he believes was intentional. Once leaving
the elevator Mr. Albatal attended the Interview which he describes as a
security interview not the skilled-worker interview he anticipated.
[6]
Based on the questioning Mr. Albatal formed the
belief that the Interview was intended to place him in grave danger should he
ever visit his country of birth in the future. Mr. Albatal further believes that
an unidentified corrupt Canadian official provided fabricated information about
him to the Embassy in order to trigger the Interview. He identifies either
bribery and/or “vicious favouritism” as the motive for this alleged corrupt
official’s actions. Mr. Albatal further alleges that the corrupt Canadian
official was contacted by an influential German opponent who unsuccessfully tried
to prevent Mr. Albatal from earning his PhD while in Germany. Mr. Albatal alleges
this influential German opponent contacted the corrupt Canadian official who then
caused Mr. Albatal to be subjected to the security-type immigration interview.
[7]
Notwithstanding these events, CIC approved Mr.
Albatal’s immigration application and he landed in Canada in 2005.
A.
Access to Information Request
[8]
In December of 2012, Mr. Albatal submitted an access to information request to CIC
pursuant to the Access to Information Act, RSC 1985, c A-1 [ATIA]. Mr.
Albatal then filed two complaints with the Office of the Information
Commissioner [OIC]. The OIC recorded both complaints as resolved after CIC disclosed
all of the information on Mr. Albatal’s immigration process within CIC’s control
to him in April of 2013.
[9]
Dissatisfied with the information he received
from CIC, and with the OIC’s response, Mr. Albatal filed an application for
judicial review with this Court. The application was dismissed as moot by my
colleague Justice Elizabeth Heneghan on the basis that CIC had disclosed all
the records in their control relating to Mr. Albatal and thus there was no
longer a basis for the application for judicial review. In dismissing the
application Justice Heneghan notes that CIC had no control over information in
the possession and control of provincial authorities and if Mr. Albatal was
seeking such information his remedy was to make a request to provincial
authorities in accordance with relevant provincial legislation (Albatal v
Canada (Minister of Citizenship of Immigration and Immigration Canada),
2014 FC 1026 at para 29).
[10]
Mr. Albatal’s appeal to the Federal Court of
Appeal was dismissed in January of this year on the basis that Justice Heneghan
did not err in concluding that “Mr. Albatal’s suspicions about the existence of
other records was not a ground to order the Minister to do anything more” (Albatal
v Canada (Minister of Citizenship and Immigration Canada), 2016 FCA 32 at
para 2).
B.
Complaint to the RCMP
[11]
In May of 2014, Mr. Albatal contacted the RCMP
to report possible corruption in the Embassy and was advised by email that the RCMP
would not investigate the complaint, which the RCMP viewed as an immigration
matter that should be directed to CIC.
[12]
Mr. Albatal initiated a complaint with the
Commission for Public Complaints Against the Royal Canadian Mounted Police. The
complaint led to a follow-up request from the RCMP for further documentation
from Mr. Albatal, which was provided.
[13]
Mr. Albatal’s allegations,
including the evidence he provided, was reviewed. After contact with CIC
officials, the RCMP determined that the matter should be referred to the
Department of Foreign Affairs, Trade and Development Canada [DFATD] . This
information was communicated to Mr. Albatal in a letter from Sergeant Roach dated
June 3, 2014. In that letter, Mr. Albatal was advised that the matter does not
fall within the RCMP mandate, Mr. Albatal’s information package was returned to
him and it was suggested that Mr. Albatal address his concern to DFATD. Mr.
Albatal was further advised that should he have additional information or
documents justifying a reassessment of the RCMP position, that information
would be received. It is this letter that is subject to review in this judicial
review application.
II.
Issues
[14]
The sole issues arising out of this application
is whether or not Mr. Albatal has satisfied the test for an order in the nature
of mandamus from this Court compelling the RCMP to investigate his
complaint.
III.
Analysis
[15]
The test for obtaining an order in the nature of
mandamus is well known and set out in full in Apotex Inc v Canada
(Attorney General), [1993] FCJ No 1098 at para 55, 18 Admin LR (2d) 122
(CA) [Apotex]. For the purpose of this application, Mr. Albatal must
demonstrate that the respondent: (1) has a legal duty to act; and (2) the duty is
owed to Mr. Albatal. In addition, mandamus will not be used to compel the
exercise of an unfettered discretion or to compel the exercise of a fettered
discretion in a particular way. These principles are reflected in Justice
Matlow’s decision in in Holmes v White, 2014 ONSC 5809 at paras 14-15,
329 OAC 81 (Div Ct) [Holmes] , where, relying on Apotex, he states:
[14] Mandamus is a particular
form of judicial relief. While courts regularly quash decisions made by
government officials that are found to violate their statutory or regulatory
powers, requiring a government official to do a specified positive act is a
more nuanced venture. A court requiring a government official to act can raise
questions of judicial authority, legitimacy, and the balance of powers as
between the executive and the judiciary. Accordingly, tests have been developed
to ensure that the court exercises its undoubted power of compulsion only in
appropriate cases. Ramsay J. set out the correct test as accepted by the
Supreme Court of Canada in Apotex Inc. v. Canada (Attorney General),
[1994] 1 F.C. 742 (Fed. C.A.) at para. 45, aff'd [1994] SCJ No. 113.
[15] Among the many elements of the
multi-pronged Apotex test for mandamus are requirements that: (a)
the respondents must have a legal duty to act; (b) the duty must be owed to the
applicant; and (c) mandamus will not be available to compel the exercise of an
unfettered discretion or to compel the exercise of a fettered discretion in a
particular way. The applicant's proceeding runs afoul of each of these elements
of the test. Ramsay J. made no error of law or palpable and overriding error of
fact in concluding that it is plain and obvious that the applicant cannot
succeed. This is not a novel case or a close call. It is a case in which
binding authority and all of the relevant persuasive authorities on point stand
directly opposed to the applicant's request.
[16]
Justice Matlow then proceeds to address the
question of whether or not the police have a public or private law duty to
investigate, concluding that no such duty exists but rather the police exercise
a discretion in determining whether or not to initiate an investigation into a
complaint:
[16] It has been held many times that
the police do not owe either a public law or a private law duty to any
individual to investigate crime.
[…]
[18] The English cases concluded
that while the court can require the police to exercise their discretion to
decide whether to investigate, the court should not dictate to the police the
outcome of that discretionary decision. Yet in this case, the applicant seeks
to have this Court do precisely that [emphasis
added]. All three police departments represented by the respondents have
already exercised their discretion and decided not to investigate the
allegations being made by the applicant. The applicant asks the Court to compel
the police to investigate his allegations against the CN Police Service. This
is the very thing that the English courts, on which the applicant relies, have
said that they cannot and must not do.
[19] The same result is reached
under the third prong of the test in Apotex as recited above. The Court
cannot issue mandamus to require a particular result. If the discretion of the
police is unfettered, then it is not amenable to mandamus at all. But even if
the police have only a fettered or limited discretion, the Court may be
entitled to require a recalcitrant office holder to make a decision, but the
Court cannot dictate the outcome of the discretionary decision
[emphasis added]. The applicant asks the Court to do that which the Supreme
Court of Canada has said it cannot do.
[20] The applicant falls back on
statements made by the Supreme Court of Canada and the Federal Court of Appeal
to the effect that in certain flagrant and extraordinary cases, the courts can
review abusive exercises of prosecutorial discretion. (See: R. v. Beaudry,
2007 SCC 5, Ochapowace Indian Band v. Canada (Attorney General), 2009
FCA 124 and Baker v. Canada (Minister of Citizenship & Immigration),
[1999] S.C.J. No. 39. He submits that, taken together, these cases provide that
every alleged victim of a crime has a right to have the court compel the police
to either investigate his or her allegations or to require the police to establish
in court that they have objectively and subjectively reasonable grounds to
decline to investigate. Just stating the proposition is to reject it. None
of the cases relied upon by the applicant deal with Apotex or suggest
that a court can order mandamus to compel a police force to investigate a
particular criminal offence at the behest of an alleged victim of crime
[emphasis added].
[17]
In this case it is clear that the RCMP
considered Mr. Albatal’s complaint, concluded that the evidence provided does
not disclose a basis to believe that there was any corruption involved on the
part of any federal government agency or ministry in respect of Mr. Albatal’s
immigration application and have exercised their discretion not to initiate an investigation.
[18]
As was the case in Holmes, Mr. Albatal fails
on all three elements required to succeed in an application for an order in the
nature of mandamus (also see Ochapowace First Nation (Indian Band No
71) v Canada (Attorney General), 2007 FC 920 at paras 40-41, 78 WCB (2d)
352 and Goodwin v British Columbia (Superintendent of Motor Vehicles), [2015]
3 SCR 250 at para 28).
[19]
Mr. Albatal’s suspicions that CIC is in
possession of undisclosed documentation relevant to his allegations,
documentation that Mr. Albatal believes an RCMP investigation could compel CIC
to produce, does not change the character of this application. Mr. Albatal has
exercised his right to access CIC held information and pursued his remedies
before the OIC and the Courts. It has been judicially determined that CIC has
disclosed to Mr. Albatal all the records in their control relating to him (Albatal
v Canada (Minister of Citizenship of Immigration and Immigration Canada),
2014 FC 1026 at paras 29, 31).
[20]
Mr. Albatal argues that the RCMP misunderstood
their jurisdiction, I disagree. The RCMP reviewed the information provided with
Mr. Albatal’s complaint and concluded that the information did not disclose a
basis to believe an offence had been committed. The RCMP owes no duty to Mr.
Albatal to investigate. The RCMP has considered Mr. Albatal’s complaint and
exercised their discretion to not investigate. This Court cannot dictate the
outcome of that discretionary decision. Mr. Albatal’s application for mandamus
must fail.
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