Date:
20070525
Docket: A-135-06
Citation: 2007 FCA 201
CORAM: RICHARD
C.J.
LINDEN J.A.
RYER
J.A.
BETWEEN:
KUNLUN ZHANG
Appellant
(Applicant)
and
ATTORNEY GENERAL OF CANADA
Respondent
(Respondent)
REASONS FOR JUDGMENT
RYER J.A.
INTRODUCTION
[1]
Kunlun
Zhang is a sculptor and an art professor who has both Canadian and Chinese
citizenship. He is a practitioner of Falun Gong, an ancient form of qigong
which emphasizes both mind cultivation and body refinement.
[2]
Professor
Zhang travelled from Canada to China using his Chinese passport. While
in China, Professor Zhang alleges that
he was arrested on four occasions, because of his Falun Gong beliefs and
practices, and was subjected to physical and mental torture during his
detention.
[3]
Professor
Zhang requested the consent of the Attorney General of Canada, pursuant to
subsection 7(7) of the Criminal Code, R.S. 1985, c. C-46 (the “Criminal
Code”), to launch a private prosecution of his alleged torturers in Canada.
[4]
The
Attorney General refused to give consent to the private prosecution and
Professor Zhang applied to the Federal Court for judicial review of that
decision. In Zhang v. Canada (Attorney General), (2006 FC 276), Madam Justice
Tremblay-Lamer dismissed that application and Professor Zhang has appealed
against her decision.
[5]
For the
reasons that follow, I would dismiss the appeal with costs.
FACTUAL BACKGROUND
[6]
On March 12, 2004, counsel for Professor Zhang requested the consent of
the Attorney General, pursuant to subsection 7(7) of the Criminal Code, to
launch a private prosecution pursuant to section 269.1 of the Criminal Code, of
twenty-two Chinese residents, none of whom is a Canadian citizen, for acts of
torture that were allegedly inflicted by them on him while he was in China.
[7]
By correspondence dated March 23, 2005, Mr. William H. Corbett, Senior
General Counsel for the Attorney General denied the request for consent to the
private prosecution on behalf of the Attorney General, the Honourable Irwin
Cotler. Six days later, Mr. Corbett wrote to counsel for Professor Zhang withdrawing
the refusal on the basis that the Honourable Irwin Cotler had recused himself
from considering the matter.
[8]
By correspondence to counsel for Professor Zhang, dated March 31, 2005, Ms.
Clare Barry, also Senior General Counsel for the Attorney General, denied the
request for consent to the private prosecution, on behalf of the acting
Attorney General, the Honourable Anne McLellan, for the following reasons:
The
case described in your correspondence does not demonstrate that the required
threshold can be met. Much of the evidence is not available to Canadian
authorities for investigation, assessment, or trial. The persons alleged to
have committed the offences are not located in Canada, nor is there a reasonable prospect that they can be brought to trial
in Canada.
The
policy also requires that a prosecution only take place if it is in the public interest
to do so. It would not be appropriate, in the public interest, to allow charges
to be laid and thereby identify and accuse persons of very serious offences,
without a full police investigation and a reasonable prospect of being able to
bring the case to trial.
Consequently,
Minister McLellan, as acting Attorney General in this specific request
following Minister Cotler’s recusal, has decided that a consent to prosecute
cannot be granted in the circumstances of this case.
[9]
Professor Zhang brought a motion for judicial review of the decision of
the Honourable Anne McLellan on the grounds that it was not in accordance with
the duty of fairness owed to him and that it breached his rights under sections
7 and 15 of the Canadian Charter of Human Rights and Freedoms, Part I of
the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.),
1982, c. 11 (the “Charter”). On March 2, 2006, Justice Tremblay-Lamer dismissed
the application for judicial review.
STATUTORY PROVISIONS
[10]
The
statutory provisions that are germane to this appeal are subsection 7(7) of the
Criminal Code, which reads as follows:
|
7(7) If the accused is not a Canadian citizen, no
proceedings in respect of which courts have jurisdiction by virtue of this
section shall be continued unless the consent of the Attorney General of
Canada is obtained not later than eight days after the proceedings are
commenced.
|
7(7) Si
l’accusé n’a pas la citoyenneté canadienne, il est mis fin aux poursuites à
l’égard desquelles les tribunaux ont compétence aux termes du présent
article, sauf si le procureur général du Canada donne son consentement au
plus tard huit jours après qu’elles ont été engagées.
|
and
section 7 and subsection 15(1) of the Charter, which read as follows:
|
7. Everyone has the right to life, liberty
and security of the person and the right not to be deprived thereof except in
accordance with the principles of fundamental justice
|
7. Chacun a droit à la vie, à la liberté et
à la sécurité de sa personne; il ne peut être porté atteinte à ce droit qu'en
conformité avec les principes de justice fondamentale.
|
|
15. (1) Every individual is equal before and
under the law and has the right to the equal protection and equal benefit of
the law without discrimination and, in particular, without discrimination
based on race, national or ethnic origin, colour, religion, sex, age or
mental or physical disability.
|
15. (1) La loi ne fait acception de personne
et s'applique également à tous, et tous ont droit à la même protection et au
même bénéfice de la loi, indépendamment de toute discrimination, notamment
des discriminations fondées sur la race, l'origine nationale ou ethnique, la
couleur, la religion, le sexe, l'âge ou les déficiences mentales ou
physiques.
|
STANDARD OF REVIEW
[11]
Generally,
in appellate review of judicial decisions, questions of law are reviewable on a
standard of correctness and questions of fact and questions of mixed fact and
law are reviewable on the standard of palpable and overriding error (Housen
v. Nikolaisen, [2002] 2 S.C.R. 235).
ISSUES
[12]
The issues
for determination in this appeal are:
a) whether
the standard of review of the exercise of prosecutorial discretion is flagrant
impropriety;
b) whether
the denial of consent to the private prosecution constituted flagrant impropriety
on the part of the acting Attorney General; and
c) whether
there has been a breach of either section 7 or subsection 15(1) of the Charter.
ANALYSIS
Flagrant
Impropriety
[13]
Tremblay-Lamer
J. held that the exercise of prosecutorial discretion is reviewable when
flagrant impropriety can be demonstrated and that the threshold to establish
flagrant impropriety is very high. She cited with approval the statement in Kostuch
v. Alberta (Attorney General) (1995), 128 D.L.R. (4th) 440
at 447, that
… flagrant impropriety
can only be established by proof of misconduct bordering on corruption or
violation of the law, bias against or for a particular individual or offence.
In my view, Tremblay-Lamer J. correctly determined that
flagrant impropriety is the appropriate standard of review and that evidence
consistent with the excerpt from Kostuch must be available before a
finding of flagrant impropriety can be made.
[14]
Counsel for Professor Zhang argued that “an
error of law is always a flagrant impropriety” equating an “error of law” with
a “violation of the law”, as that latter phrase is used in Kostuch. With
respect, this contention is misguided. The two phrases are plainly not
interchangeable. The former may be seen as a result of an incorrect
interpretation of the law, while the latter, in the context used in Kostuch,
may be seen as an action that results in a contravention of a statutory
provision. Moreover, the notion of “an error of law” is inapplicable in the
actual circumstances under consideration in that, in refusing to grant consent
to the private prosecution, the Honourable Ann McLellan was exercising a
statutorily permitted discretion and was not engaged in an interpretation of
the law.
[15]
Counsel
for Professor Zhang raised a number of grounds in support of his argument that
the exercise of prosecutorial discretion by the acting Attorney General
constituted flagrant impropriety. The first is that the timing of the
correspondence from the acting Attorney General and the similarities between
that correspondence and the initial correspondence from Mr. Corbett raise a
reasonable apprehension of bias on the part of the acting Attorney General such
that a reasonable person would conclude that the acting Attorney General did
not reach her decision independently. It was also argued that Professor Zhang
was treated unfairly because he was not given an opportunity to respond to the
objections in Mr. Corbett’s letter before the decision of the acting Attorney
General was made.
[16]
The next
complaint was that the Honourable Ann McLellan misunderstood and misapplied the
“Decision to Prosecute” policy which, according to counsel for Professor Zhang,
deals with public prosecutions and was inapplicable in a case dealing with a
decision to permit a private prosecution.
[17]
Counsel
for Professor Zhang also argued that in reaching the decision to refuse
permission for the private prosecution, the acting Attorney General did not
consider the possibility that China would voluntarily agree to
extradite Professor Zhang’s alleged torturers. Moreover, according to Professor
Zhang’s counsel, the acting Attorney General effectively repealed provisions of
the Criminal Code that deal with prosecutions for extraterritorial torture.
[18]
In her
analysis, Justice Tremblay-Lamer thoroughly examined each of these grounds of
complaint and concluded that none of these allegations amounted to flagrant
impropriety on the part of the acting Attorney General. In my view, her
conclusions were reasonable and I would not interfere with them.
[19]
On appeal,
counsel to Professor Zhang invited the Court to conclude that the cumulative
effect of the various alleged deficiencies on the part of the acting Attorney
General was sufficient to establish flagrant impropriety in relation to her
decision not to consent to the private prosecution, even if no single
deficiency may have been sufficient to establish it. This argument presumes
that some degree of impropriety was established in respect of each of the
alleged deficiencies. However, in my view, Tremblay-Lamer J. concluded that
none of the alleged deficiencies had been substantiated and, having agreed with
that conclusion, I conclude that this argument is unsustainable.
Section 7 of the Charter
[20]
Professor
Zhang submits that the denial of consent to launch a private prosecution amounts
to a violation of his rights under section 7 of the Charter on the basis that
it amounts to a denial of life, liberty and security of his person, without
regard to the principles of fundamental justice. He argues that by not
consenting to the private prosecution, Canada has essentially provided immunity to
those who engage in torture and has consequently become an accessory after the
fact to torture. He therefore submits that there is a sufficient causal
connection between the actions of the Canadian government and the torture that he
allegedly suffered in China to engage section 7 of the
Charter.
[21]
Tremblay-Lamer
J. correctly applied the principle in Suresh v. Canada (Minister of
Citizenship and Immigration), [2002] 1 S.C.R. 3, 2002 SCC 1, that section 7
of the Charter can be applicable in respect of a deprivation of life, liberty
or security that may arise out of the actions that may arise outside Canada
provided that there is “a sufficient causal connection between our government’s
participation and the deprivation ultimately effected…” (Suresh
paragraph 54). She observed that Professor Zhang is not in jeopardy of being
removed from Canada and found that there was no
Canadian government action or participation that would result in any potential
deprivation of the life and liberty of Professor Zhang, or the security of his
person, and as such, the causal connection requirement of Suresh was not
established. Accordingly, she concluded that there was no breach of section 7
of the Charter. I agree with her analysis and her conclusion.
Subsection 15(1) of the Charter
[22]
Professor
Zhang claims that the acting Attorney General failed to take into consideration
his pre-existing disadvantage as a Canadian citizen, by virtue of his dual citizenship,
when she refused to consent to his request to launch a private prosecution, and
consequently, violated his right to equality under section 15(1) of the
Charter. Professor Zhang submits that as a Canadian with dual nationality, he
is more vulnerable in China, his state of origin, and faces an increased chance
of being tortured in that state than other Canadian citizens. This is the case,
he submits, because he may be refused Canadian consular assistance since China does not recognize his Canadian
citizenship. Accordingly, Professor Zhang argues, it is incumbent on the
Attorney General to consent to the private prosecution of the alleged torturers
in Canada.
[23]
Tremblay-Lamer
J. referred to the seminal decision on section 15 of the Charter, Law v.
Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, and
the three step analysis that it provides with respect to the determination of
whether there has been a violation of equality rights. She found that Professor
Zhang was not subject to differential treatment as a result of his dual
nationality. The disadvantage that he encountered when traveling in China was not
related to the acting Attorney General’s refusal to grant consent to the
private prosecution in this case. Rather, the claimed disadvantage arose in China and
therefore could not be considered a disadvantage within Canadian society.
Justice Tremblay-Lamer consequently found that there was no breach of section
15(1) of the Charter. I agree with her analysis and her conclusion in that
regard. Accordingly, Professor Zhang’s claim under section 15(1) of the Charter
must fail.
CONCLUSION
[24]
I would
dismiss the appeal with costs to the respondent.
“C.
Michael Ryer”
“I
agree.
J.
Richard”
“I
agree.
A.M.
Linden”
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