Docket: T-645-17
Citation:
2017 FC 818
Ottawa, Ontario, September 8, 2017
PRESENT: The
Honourable Mr. Justice Lafrenière
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BETWEEN:
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STEPHEN POLNAC
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Applicant
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and
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REGINA
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Respondent
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JUDGMENT AND REASONS
[1]
The Attorney General of Canada [AGC] has moved
in writing on behalf of the Respondent “Regina” [the
Crown] for an order pursuant to Rule 221(1)(a) of the Federal Courts Rules,
SOR/98-106, striking out the Applicant’s Notice of Habeas Corpus [the
Application] without leave to amend and summarily dismissing the proceeding
with costs. The relief is requested on the grounds that the Application is
outside the jurisdiction of the Federal Court and therefore discloses no
reasonable cause of action.
I.
Background
[2]
In support of the motion, the Crown relies on
the affidavit of Ms. Laura Oremek, a paralegal with the Public Prosecution
Service of Canada. The following facts are not in dispute.
[3]
The Applicant was arrested on or about September
1, 2016 in Vancouver, British Columbia by members of the Canada Border Service
Agency [CBSA] for being inadmissible to Canada. The Applicant was subsequently
detained at the Fraser Regional Correctional Centre [FRCC].
[4]
On September 6, 2016, the Applicant was arrested
at the FRCC and charged with two offences under the Immigration and Refugee
Protection Act, SC 2001, c 27 [IRPA], namely: (a) returning to Canada
without Ministerial authorization contrary to subsection 52(1) of IRPA (Count
1); and (b) failing to appear for an examination to determine whether the Applicant
was authorized to enter Canada contrary to subsection 18(1) of IRPA (Count 2).
[5]
On September 20, 2016, Mr. Justice Gove of the
British Columbia Provincial Court [BCPC] entered pleas of Not Guilty to the
Offences on behalf of the Applicant and denied bail.
[6]
Two days of preliminary inquiry were heard on
October 31, 2016 and November 7, 2016.
[7]
By letter dated August 2, 2017, the Respondent’s
counsel wrote to the Court to clarify that the Crown directed a stay of
proceedings on Count 2; however, the criminal prosecution in regard to Count 1
is ongoing and a trial is scheduled to proceed in September 2017.
II.
Application for Writ of Habeas Corpus
[8]
The Applicant, who is self-represented,
commenced the underlying proceeding by way of Notice of Application on May 1,
2017. The Applicant seeks a Writ of Habeas Corpus pursuant to section 10
of the Canadian Charter of Rights and Freedoms, Part I of the Constitution
Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11,
“to address several violations of the principles of
fundamental justice through abuse of process issues and rights violations that
have arisen as a direct result from Provincial Court File No. 23371-1…”
[9]
The Applicant alleges at paragraphs 1 to 3 of
the Application that the federal prosecutor failed to ensure that the Applicant
was brought before a judge within 24 hours as required by section 503 of the Criminal
Code, RSC,
1985, c C-46, that she withheld full disclosure thereby
violating the Applicant’s right to make full answer and defense, and that she
denied the Applicant’s right to a fair and meaningful hearing by proceeding in
a court that does not have jurisdiction to release the Applicant. Paragraphs 4
to 10 set out a litany of alleged errors of law and violations of the
Applicant’s rights committed by the Provincial Court.
[10]
By way of relief, the Applicant seeks an order
transferring his file before the BCPC to the Federal Court, an order removing
the “immigration hold” placed on the Applicant,
an order releasing the Applicant from custody and production of BCPC court
transcripts.
III.
Motion to strike
[11]
On June 20, 2017, the Crown moved to strike the Application
pursuant to Rule 221(1)(a) of the Federal Courts Rules on the basis that
it discloses no reasonable cause of action as the relief requested is outside
the jurisdiction of the Federal Court.
[12]
Rule 221(1), which is contained in Part 4 of the
Federal Courts Rules, provides that a statement of claim may be struck
out on various grounds. There is no corresponding rule in Part 5 of the Rules,
which governs proceedings brought by way of application, for striking out a
notice of application. This characteristic was discussed by Mr. Justice Barry
Strayer of the Federal Court of Appeal in the decision in David Bull
Laboratories (Canada) Inc v Pharmacia Inc, 1994 CanLII 3529
(FCA), [David Bull] at pages 596 and 597:
[...] the direct
and proper way to contest an originating notice of motion which the respondent
thinks to be without merit is to appear and argue at the hearing of the motion
itself. [...]
[13]
Justice Strayer nonetheless concluded that this
Court had jurisdiction, in very exceptional cases, to strike a notice of
application, at page 600:
[...] This is not
to say that there is no jurisdiction in this Court either inherent or through
Rule 5 [now Rule 4] by analogy to other rules, to dismiss in summary manner a
notice of motion which is so clearly improper as to be bereft of any
possibility of success. Such cases must be very exceptional and cannot include
cases such as the present where there is simply a debatable issue as to the
adequacy of the allegations in the notice of motion.
IV.
Analysis
[14]
In my view, this case falls squarely within the
David Bull exception on the basis that it is plain and obvious that the
Federal Court does not have jurisdiction to entertain the Applicant’s Application,
let alone to grant the relief requested.
[15]
The Federal Court is a court of statutory
jurisdiction. The tri-partite test for Federal Court jurisdiction was set out
in ITO International Terminal Operators Ltd v Miida Electronics Inc, 1986
CanLII 91 (SCC), [1986] 1 S.C.R. 752 at 766 [ITO]. There must be: (1) a
statutory grant of jurisdiction by the Parliament of Canada; (2) an existing
body of federal law essential to the disposition of the case; and (3) the law
must be a law of Canada.
[16]
This Application fails the first requirement of
the ITO test. The application for a writ of habeas corpus is
clearly bereft of any possibility of success as subsections 18(1) and 18(2) of
the Federal Courts Act do not give the Federal Court jurisdiction to
grant such relief, except to members of the Canadian Forces serving outside of
Canada, which is not the case here. The Federal Court was not created as a
court of general or inherent jurisdiction with respect to the prosecution of
criminal offences, such as those enumerated under paragraph 124(1)(a) of IRPA,
nor was it granted supervisory jurisdiction over a provincial court by section
101 of the Constitution Act, 1867, 30 & 31 Vict, c 3.
[17]
In the present case, the Applicant’s detention
arises pursuant to criminal charges after bail was denied by the BC Provincial
Court. To the extent that the Applicant wishes to contest the denial of bail,
his remedy lies elsewhere.
[18]
By way of parenthesis, it is worth mentioning
that on July 12, 2017, the Applicant was released on bail on entering into a
recognizance; however he was immediately placed under immigration detention by
the CBSA. The Applicant’s detention was ordered to continue by the Immigration
and Refugee Board [IRB] following 48-hour and 7-day detention reviews, held on
or about July 13 and July 21, 2017, respectively. In the event the Applicant
takes issue with any decision rendered by the IRB, the proper recourse is to
bring an application for leave and for judicial review pursuant to section 72 of
IRPA. This Court otherwise has no statutory or inherent jurisdiction to
entertain the matter.
V.
Conclusion
[19]
Based on the foregoing, I conclude that it is
plain and obvious that the Federal Court does not have jurisdiction to
entertain the Applicant’s Application and it is bereft of any possibility of
success. Accordingly, the Application for a writ of habeas corpus shall
be struck out and application shall be dismissed.
[20]
As for costs of the motion, I see no reason to
deviate from the general rule that costs should follow the event given that the
Applicant refused to concede that his Application was without any merit.
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