Docket: T-935-17
Citation:
2017 FC 776
[ENGLISH TRANSLATION]
Ottawa, Ontario, August 18, 2017
PRESENT: The
Honourable Madam Justice Roussel
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BETWEEN
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JEAN-FRANÇOIS
ST-LAURENT
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9105-2829
QUÉBEC INC.
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9105-2761
QUÉBEC INC.
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Applicants
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and
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THE ATTORNEY
GENERAL OF CANADA
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
The applicant, Mr. Jean-François St-Laurent, is
a Canadian citizen. He claims that he has been charged before the Spanish court—Juzgado
Central de Instrucción No. 5 Audiencia Nacional [Spanish court]—of having
committed, personally and through the applicant corporations, 9105-2829 Québec
Inc. and 9105-2761 Québec Inc., crimes of money laundering from Canada. The
trial is to begin next September 17.
[2]
According to Mr. St-Laurent, the charges to
which he is subject in Spain are based on inaccurate information that was
illegally shared and sent by Canadian authorities to both the Spanish court and
the Spanish Department of Justice.
[3]
He is requesting, on his own accord and as sole
administrator and shareholder of these two (2) applicant corporations, a mandamus-type
order to correct the inaccurate information and have the corrections sent to
the Spanish authorities. He is also asking the Court to declare the sharing and
sending of certain documents to various Canadian and Spanish authorities
illegal.
[4]
The Attorney General of Canada [AGC] maintains
that the application for judicial review must be dismissed for three (3)
reasons. First, the doctrine of estoppel applies to certain questions that the
Court has already decided in a decision delivered on November 30, 2016, in
docket T-1918-16. Second, the conditions established for obtaining a mandamus
have not been demonstrated. Third, the applicants have not shown how the
sharing of information and the exchanges of letters were done “illegally”.
[5]
For the following reasons, it is the Court’s
view that the application for judicial review must be dismissed.
II.
Context
[6]
The evidence submitted in the Court record is
deficient, such that it is difficult to establish with any certainty the
relevant facts in this case. However, there is no doubt that the events took
place over many years and involve many interveners in both Canada and Spain.
They also include a tax component and a criminal investigation component.
Tax component
[7]
Following a tax audit of Mr. St-Laurent,
corporation 9105-2829 Québec Inc., as well as seven (7) other persons and
corporations, the Minister of National Revenue of Canada issued new notices of
assessment in January 2008. Those regarding Mr. St-Laurent and the two (2)
applicant corporations concerned the 2004, 2005, and 2006 taxation years. The
tax audit was based in part on information received from the Agencia
Tributaria, Oficina Nacional de Investigación del Fraude Equipo Central de Información
[Agencia Tributaria]. The applicants challenged the new notices of assessment
and appealed them before the Tax Court of Canada (Files 2010-1955(IT)G,
2010-1958(IT), and 2010-1961(IT)G).
[8]
On February 1, 2008, the Minister of National
Revenue of Canada filed notices of motion for authorization of immediate
execution under subsections 225.1(1) and 225.2(2) of the Income Tax Act,
SRC 1985, c. 1 (5th Suppl) to seize the property, among other
things, of Mr. St-Laurent and of corporation 9105-2829 Québec Inc. (Dockets
T-190-08 and T-194-08). The motions relied in particular on the affidavits of
two (2) individuals, including that of Mr. Éric Fortin, a Canada Revenue Agency
employee, and dated January 29, 2008. The ex parte motions were approved
on February 4, 2008, by Justice Michel M.J. Shore of this Court.
[9]
On November 2, 2009, Mr. Daniel Beauchamp, legal
counsel for the Department of Justice Canada, who represented the Minister of
National Revenue of Canada in the applicants’ tax cases, wrote to Judge Baltasar
Garzón Real. According to the applicants, Judge Real oversees the investigation
regarding suspicions of illegal activities that were allegedly carried out by
the Spanish corporation Forum Filatélico. In his letter, Mr. Beauchamp provided
the Spanish judge with some information regarding the steps taken by the Canada
Revenue Agency and the status of the tax cases in Canada. In particular, he
informed him that the respondents in the tax cases raised a mean of defence
that reportedly stems from two (2) judgments that were apparently rendered by
the Spanish judge as part of his investigation. Mr. Beauchamp asked him for
information about a request to appear that was reportedly submitted to the
Spanish judge by one of the Canadian corporations targeted by the tax audit.
Mr. Beauchamp also asked him to confirm whether the Agencia Tributaria and
another person worked for and with him as part of that investigation. Finally,
Mr. Beauchamp also mentioned in his letter to the Spanish judge that one of the
respondent corporations in the tax cases had reportedly received a sum of $68
million from dubious sources over a period of three (3) and a half years.
[10]
The cases challenging the notices of assessment
were settled out of court on October 26, 2012.
Criminal investigation
component
[11]
In 2009, the Royal Canadian Mounted Police
(RCMP) received a communication from the Financial Transactions and Reports
Analysis Centre of Canada [FINTRAC] that included, among other things,
information sheets (Exhibit P-9). FINTRAC is a autonomous and independent
organization created under the Proceeds of Crime (Money Laundering) and
Terrorist Financing Act, SC 2000, c. 17 [Act] that collects, analyzes, and
shares useful information for detecting, preventing, and deterring proceeds of
crime (money laundering) and funding terrorist activities (Act, sections
40-41). In particular, it receives reports, statements, or information from
financial institutions and intermediaries sent to it under the terms of the
Act. When FINTRAC has reasonable grounds to suspect that the information would
be useful for investigations or proceedings involving the offences of proceeds
of crime (money laundering) or funding terrorist activities, it shares certain
designated information with the competent police authorities (Act, subsection
54(1) and paragraph (55(3)(a)).
[12]
An investigation report conducted by Corporal
Jean Harrisson of the RCMP’s Integrated Proceeds of Crime Unit, was prepared
and sent to an RCMP liaison officer who was based in Madrid, Spain, at that
time. The investigation report came with information sheets issued by FINTRAC:
tables, organizational charts, and incorporation documents. The investigation
report is not dated.
[13]
On March 31, 2010, Ms. Sacha Palladino, legal
counsel at the International Assistance Group at Justice Canada forwarded a
letter to the Spanish Department of Justice in which she indicated enclosing
several documents that were the result of an investigation led by the RCMP regarding
Mr. St-Laurent’s suspicious financial activities. She sent a copy of the letter
to Spanish judge Baltasar Garzón Real.
[14]
This communication was part of a request for
assistance submitted in 2007 by the Spanish Department of Justice in accordance
with the Treaty Between Canada and the Kingdom of Spain on Mutual Assistance
in Criminal Matters, E101633 – CTS 1995 No. 47 regarding the allegations
against the Spanish corporation Forum Filatélico.
[15]
The Spanish judicial authorities indicted Mr.
St-Laurent. In June 2012, they shared with him a copy of Corporal Harrisson’s report,
tables, as well as information sheets.
[16]
On July 23, 2012, Mr. St-Laurent gave the RCMP
formal notice to correct the contents of Corporal Harrisson’s report and of the
accompanying documents. On October 25, 2012, the RCMP informed counsel for Mr.
St-Laurent that after making the required checks, it was maintaining the
contents of the report, apart from adding two (2) amendments to paragraphs 3
and 8 of the report. The RCMP also pointed out that it considered the
information in connection with FINTRAC to be relevant and reliable due to their
nature and source.
[17]
On December 7, 2015, Mr. Daniel Duchesne,
Executive Director, Performance and Customer Experience at the Caisse
Desjardins in downtown Québec City [Caisse], confirmed in writing to counsel
for Mr. St-Laurent that the latter had never been a holder or signatory of bank
accounts that were attributed to him in the tables enclosed in Corporal
Harrisson’s report. This letter was received as part of an out-of-court
settlement in a case between the applicants and the Caisse in the Superior
Court, bearing number 200-05-020095-159. On February 9, 2016, Mr. Duchesne
amended his letter of December 2015 to make a correction.
[18]
On November 10, 2016, the applicants submitted
an application for judicial review (T-1918-16) to the registry of this Court to
obtain an interlocutory injunction and a mandamus-type order to order
FINTRAC to correct the inaccurate and injurious information contained in the
information sheets and to advise the RCMP and Spanish court thereof. The
applicants submitted an urgent request for those same purposes six (6) days
later.
[19]
On November 30, 2016, Justice Luc Martineau
dismissed the applicant’s request. In particular, he considered that: (1) it
was not up FINTRAC, but rather to the reporting entities to amend the previous
statements if they contained any errors; (2) the information sheets complied
with the statements received by FINTRAC, as they had not been amended by the
reporting entities; (3) Mr. Duschesne’s letter dated December 7, 2015, did not
constitute an amendment to the previous statements made by the Caisse under the
Act, as the AGC and FINTRAC were not parties to the proceedings initiated by
the applicants in the Superior Court of Quebec against the Caisse, nor to the
settlement that occurred between the parties; (4) the application for
interlocutory injunction was equivalent to a final settlement of the mandamus
application and, in the absence of a legal obligation of a public nature to the
applicants to amend the information sheets, the remedy was bound to fail, so
there was a lack of a serious question; (5) Mr. St-Laurent was free to
demonstrate to the Spanish court the inaccuracy and/or lack of reliability of
the information sheets and of Corporal Harrisson’s report, and having a debate
before the Spanish court for that purpose did not constitute irreparable
prejudice; and (6) the balance of convenience was in favour of the status quo
because the applicants were aware of FINTRAC’s decision to share the
information sheets since 2012, and it would be contrary to the spirit of the
Act and the public interest to order the correction without the intervention of
the reporting entities. The applicants did not appeal this decision and
submitted a notice of abandonment to the Court record on June 2, 2017.
Current proceedings
[20]
On May 4, 2017, the applicants gave the
Department of Justice Canada and the RCMP formal notice to correct the
erroneous information that was shared with the Spanish judicial authorities
contained in Mr. Beauchamp’s letter dated November 2, 2009, Ms. Palladino’s
letter dated March 31, 2010, as well as Corporal Harrisson’s letter, the
tables, and the enclosed information sheets. The applicants insisted in
particular on the out-of-court settlements reached with the Canada Revenue
Agency in which they issued new notices of assessment for the 2004, 2005, and
2006 taxation years, reducing the amounts owed by the applicants. The
applicants argue that the issuance of new notices of assessment following
out-of-court settlements confirms the absence of a basis to the allegations
that the applicants engaged in illicit misappropriation of money and benefitted
therefrom.
[21]
On May 31, 2017, the Department of Justice
Canada reminded the applicants that they had known about Mr. Beauchamp’s letter
since July 2010, and the information sent in Ms. Palladino’s letter since June
2012. The Department of Justice Canada also informed the applicants that Mr.
St-Laurent could himself submit as evidence the documents that he considered
relevant for the purposes of the proceedings in Spain.
[22]
On June 27, 2017, the applicants submitted this
application for judicial review, and the next day, a motion to obtain an
interlocutory injunction, a mandamus-type order, and a certiorari.
[23]
In their notice of application, the applicants
requested an order compelling the Department of Justice Canada and the RCMP to
amend the inaccurate information regarding Mr. St-Laurent and the two (2)
applicant corporations contained in the following six (6) documents:
a)
Mr. Beauchamp’s letter dated November 2, 2009;
b)
Ms. Palladino’s letter dated March 31, 2010;
c)
The undated investigation report by Corporal
Harrisson of the RCMP;
d)
The tables prepared by Corporal Harrisson of the
RCMP;
e)
The tables prepared by Mr. Fortin of the Canada
Revenue Agency;
f)
The information sheets issued by FINTRAC.
[24]
The applicants are asking the Court to compel
the Department of Justice Canada to send the correction of that inaccurate
information to the Spanish court and the Spanish Department of Justice as soon
as possible.
[25]
Finally, the applicants are also seeking an
order to declare illegal:
a)
The sending of the information sheets prepared
by FINTRAC to Corporal Harrisson;
b)
The sharing of Corporal Harrisson’s report and
its appendices to the Department of Justice Canada;
c)
The sending of the letters by Mr. Beauchamp and
Ms. Palladino to the Spanish court and the Spanish Department of Justice; and
d)
The sending of Corporal Harrisson’s
investigation report, the appendices thereof, the tables prepared by Mr.
Fortin, and the FINTRAC information sheets to the Spanish Department of Justice
and to the Spanish court.
[26]
On July 7, 2017, Justice Yvan Roy ordered that
the application for judicial review be heard on July 27, 2017, given that Mr.
St-Laurent’s trial is to begin in September 2017.
III.
Analysis
A.
Preliminary issues
[27]
At the beginning of the hearing, the applicants
submitted an application to obtain permission to file, by no later than August
15, 2017, a second opinion in response to the one submitted by the AGC in his
motion record. In particular, this would deal with the possibility for Mr.
St-Laurent to challenge the accuracy, probative value, or reliability of the
Canadian documents before the Spanish court as part of his trial in Spain. The
AGC opposed the application on the grounds that the applicants were aware since
November 30, 2016, that evidence in Spanish law must be examined by a competent
expert, which Martineau J. noted in his decision.
[28]
The Court informed counsel for the applicants of
its concerns regarding the impact of such an application on the conduct of the
proceedings. Filing such a second opinion would required additional
submissions from the parties and would result in separating the hearing for the
application for judicial review into two (2) sessions. Furthermore, the AGC
might seek to cross-examine the affiant about the expert report, thereby
resulting in an additional delay in determining the application for judicial
review. The Court reminded the applicants that they had the burden to prove
their allegations and that in fact, they were aware since November 2016 that
Spanish law had to be proven. The Court nevertheless gave the applicants the
opportunity to reach an agreement with the AGC to postpone the hearing. In the
absence of an application for postponement by the applicants and for the
reasons that were indicated to them, the Court refused the applicants’
application. Moreover, the Court considers that the order made by Roy J. on
July 7, 2017, stipulated that the full record be submitted to the Court by July
21, 2017. When the applicants received the expert report produced by the AGC on
July 14, 2017, in accordance with the deadline, they should have been able to
submit a motion for directions in order to amend the deadline and request
authorization to file a second opinion. However, they did not use that
procedure.
[29]
The applicants are also seeking to submit a
statement by Ms. Michelyne Chénard St-Laurent, the spouse of counsel for Mr.
St-Laurent, who was sworn in the morning of the hearing. In her statement, she reported
on her spouse’s health as well as her own since 2012 to justify the delay in
initiating these proceedings. The AGC opposed the filing of the sworn statement
on the grounds that it was late. In response, the applicants explained that the
late filing of the statement was attributable to mere forgetfulness on counsel’s
part.
[30]
The Court examined the sworn statement and
deemed that it would be contrary to the interests of justice and of the AGC,
who was taken by surprise, to allow the applicants to file the sworn statement
at this stage of the proceedings without a satisfactory explanation. For these
reasons, the Court found that the sworn statement on July 27, 2017, was
inadmissible.
B.
Application for a mandamus order
[31]
The conditions that must be met for a mandamus
order to be granted are set out by the Federal Court of Appeal in Apotex
Inc. v. Canada (Attorney General), [1994] 1 FC 742 (FCA) (QL) at para 45,
confirmed by [1994] 3 S.C.R. 1100 (QL) [Apotex]. These conditions must all
be fulfilled for the Court to be able to grant this extraordinary remedy (Coderre
v Canada (Office of the Information Commissioner), 2015 FC 776 at para 27; Rocky
Mountain Ecosystem Coalition v Canada (National Energy Board), (1999) FCJ
No. 1223 (QL) at para 30). In particular, there must be a legal obligation to
act publicly with respect to the applicant, who must have a clear right to have
that obligation carried out. Furthermore, the applicant must not have any other
remedies and the order requested must have a practical impact.
[32]
The Court deems that these conditions are not
fulfilled.
[33]
First, the applicants have not established that
there is a legal obligation to them, as they have not identified the source of
obligation for the Department of Justice Canada and the RCMP to correct the
information that they claim is inaccurate and to send them to the Spanish
authorities.
[34]
Although the applicants cite in their notice of
application for judicial review sections 1, 7, 8, and 24(1) of the Canadian
Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982,
which constitutes Schedule B of the Canada Act 1982 (UK), 1982, c. 11 [Charter],
section 4 of the Charter of Human Rights and Freedoms, RSQ c. C-12,
section 35 and 36 of the Crown Liability and Proceedings Act, 1985 RSC
c. C-50, as well as sections 37 et seq. of the Civil Code of Québec, and
subsection 373(1) of the Federal Courts Rules, SOR/98-106, the
applicants’ submissions are limited to affirming at paragraph 12 of their
notice of motion that it [translation]
“is in the interest of justice and protection of
fundamental rights” of Mr. St-Laurent that the information be corrected
and, in paragraphs 54, 56, and 97 of their memorandum of fact and law, that the
[translation] “fundamental rights and liberties” of Mr. St-Laurent
have been interfered with or that [translation]
“the applicants’ rights under the [Charter] have
not been respected”.
[35]
Generally speaking, it is insufficient to claim
the violation of a constitutional right to establish the existence of a legal
obligation. As they have not demonstrated the legal basis of the claimed
obligation, the applicants do not fulfil the first condition mentioned in Apotex.
[36]
Moreover, even if the applicants had established
the existence of an obligation on the part of the Department of Justice Canada
and the RCMP to act publicly, the Court is of the opinion that the applicants
have not established that they have a clear right to have this obligation
carried out.
[37]
As mentioned at the outset, the evidence
submitted by the applicants is deficient and does not allow the Court to
conclude that the applicants have a clear right to having the information
corrected that they claim is erroneous.
[38]
For example, the applicants argue that the Ms.
Palladino’s letter erroneously indicates that Mr. St-Laurent is the
administrator of two (2) listed corporations. Although Ms. Palladino’s letter
does not mention the date on which Mr. St-Laurent was reportedly registered as
the director of the corporations, the applicants have only produced the initial
declaration of each of the two (2) corporations dating back to 2003 (Exhibit
P-16) and to 2005 (Exhibit P-15), which were filed with the Quebec Entreprise
Register to demonstrate that Mr. St-Laurent was never the director of said
corporations. Unless it has declarations subsequent to the initial
declarations, the Court cannot draw any conclusions about the history of the
directors or shareholders of the two (2) corporations.
[39]
Ms. Palladino also indicates in her letter that
she enclosed several documents from the RCMP investigation, without specifying
which ones. As we cannot confirm with certainty which documents were enclosed
with the letter dated March 31, 2010, the Court cannot reasonably conclude that
the information sent to the Spanish Department of Justice are inaccurate.
[40]
The applicants claim that the appendices to Ms.
Palladino’s letter consisted of Corporal Harrisson’s investigation report,
tables of [translation] “transaction records” created by him, information
sheets issued by FINTRAC, and tables prepared by Mr. Fortin of the Canada
Revenue Agency (Applicants’ Factum at para 29). However, the tables prepared by
Mr. Fortin are not in the Court record. The Court therefore cannot conclude
that the tables contain inaccurate or erroneous information. As for the other
documents that were reportedly enclosed with Ms. Palladino’s letter, some
comments are necessary.
[41]
Regarding Corporal Harrisson’s report, the Court
notes that it is mentioned therein that [translation]
“[t]he information sheet, the organizational charts, and
the incorporation documents for the companies are enclosed so that the
connections between the various companies can be understood”. However,
neither the organizational charts nor the incorporation documents have been
filed in the Court record. Without the documents enclosed with the report, the
Court cannot know which corporations were targeted, the connections between
them, the role and involvement of Mr. St-Laurent and the applicant
corporations. The Court also notes that the two (2) corporations identified in
Ms. Palladino’s letter are not mentioned in Corporal Harrisson’s report.
[42]
Corporal Harrisson’s report also refers to the
information received from FINTRAC. The author reports that [translation] “FINTRAC
entered the transactions regarding the accounts opened by [Mr. St-Laurent], and
these are in EXCEL format. Those relating to transfers from or to Spain are:
9a, 12, 14a, 16, 17a, and 17c”. The applicants were unable to make the
connection between these numbers and the tables filed in the Court record.
[43]
The applicants maintain that Corporal Harrisson’s
report erroneously indicates that Mr. St-Laurent created an website that refers
to the use of tax havens. The claim that Mr. St-Laurent cannot have created it
because he was neither the administrator nor shareholder of the corporation
that owned the Internet domain. However, no evidence was submitted to
demonstrate that he had to be the director, shareholder, or administrator of a
corporation in order to create an website for that corporation. In support of
their claims, the applicants filed a document (Exhibit P-27) taken from the
website “whois.cira.ca”, which indicates that
the website in question was reportedly created in 2002 by another corporation
that has no connection with Mr. St-Laurent. However, the Court cannot give it
any weight, given that the source and completeness of the document have not
been established.
[44]
The applicants also accuse Corporal Harrisson of
insinuating in his report that Mr. St-Laurent gave an address in Switzerland
while he was living in Quebec. The Court does not read the same intention in
the report. The Court also notes that Corporal Harrisson indicated in his
report: [translation] “N.B. We have not identified any crimes in Canada”.
[45]
As for the tables that were filed by the applicants
as Exhibit P-8, the parties do not agree on their origin. The applicants argue
that the tables were prepared by Corporal Harrisson directly from the FINTRAC
information sheets (Exhibit P-9), whereas the AGC maintains that these tables
come from FINTRAC.
[46]
The AGC maintains that the doctrine of estoppel
arising from an issue that has already been decided applies in this case
because the issue of the accuracy of Corporal Harrisson’s report, the tables,
and the FINTRAC information sheets were already decided by Martineau J. in
2016. The latter ruled that the information sheets complied with the statements
received by FINTRAC, that those statements were not amended by the reporting entities,
and that Mr. Duchesne’s letter did not constitute an amendment to the Caisse’s
previous statements made under the Act. According to the AGC, there is nothing
to justify that the applicants reiterate the same arguments by directing their
application against the Department of Justice Canada and the RCMP instead of
FINTRAC.
[47]
Since it is of the opinion that the applicants
have not demonstrated that they meet the criteria for issuing a mandamus,
the Court does not deem it necessary to rule on the application of the
principles set out in Danyluk v Ainsworth Technologies Inc., 2001 SCC
44.
[48]
Another example of the deficient nature of the
evidence on record concerns Mr. Beauchamp’s letter to the Spanish judge dated
November 2, 2009. In their memorandum, the applicants allege that the motions
granted by Shore J. on February 4, 2008, relied on a sworn statement by Mr.
Fortin, dated January 29, 2008 (Applicants’ Factum at para 5). However, that
statement is not in the Court record, so the Court cannot assess the content of
the evidence that led to Shore J.’s orders, nor determine whether that evidence
supported the information contained in the letter, including the information
therein that one of the respondent corporations in the tax cases allegedly
received the sum of $68 million from dubious sources over a period of three (3)
and a half years.
[49]
In particular, the applicants accuse Mr.
Beauchamp of implying that Mr. St-Laurent [translation]
“allegedly participated, through that corporation, in
money laundering activities totalling $68 million” (Applicants’ Factum
at para 14). The Court cannot agree with that argument. The letter clearly
indicates that the tax audit undertaken by the Canada Revenue Agency covered
nine (9) persons and corporations, including the corporation in question. It
can also be read in the letter that at least six (6) of the nine (9) persons
and corporations mentioned were subject to orders on February 4, 2008.
[50]
The Court also notes that Mr. Beauchamp
indicated in his letter that he wanted to clarify certain information stemming
from one of the reasons raised by the respondents in their challenge of the
orders on February 4, 2008. Relying on the two (2) judgments rendered by the
Spanish judge on October 22, 2008, and January 26, 2009, the respondents in the
tax cases alleged that the information received by the Agencia Tributaria
should be rejected by the Federal Court because no charges were brought against
one of the corporations or its directors as part of the criminal case in Spain.
In that context, Mr. Beauchamp wrote to the Spanish judge to obtain information
regarding an application for intervention in the Spanish case from another
corporation covered by the tax audit. Those judgments, which might help in
better understanding the context of the Spanish case, are not in the Court
record.
[51]
In view of the above, the Court finds that the
applicants have not demonstrated that they fulfil the third condition for a mandamus
order to be issued, i.e. the existence of a clear right for a claimed
obligation to be carried out. Even if this sufficed to dismiss the application for
a mandamus order submitted by the applicants, the Court also intends to
say a few words on two (2) other conditions that the applicants must fulfil for
such an order to be issued, i.e. the absence of other remedies and the
practical impact of the requested order.
[52]
The applicants argue that the erroneous facts
contained in the letters by Mr. Beauchamp and Ms. Palladino, as well as in the
documents that were sent to the Spanish authorities demonstrate their veracity
and contents in the Spanish judicial system. To support their argument, they
refer the Court to a statement in that respect by counsel for Mr. St-Laurent
before the Spanish court, and which was sworn on May 23, 2017. They also argue
that without the Court’s intervention, Mr. St-Laurent [translation] “is very likely to be
convicted by a Spanish court on the sole basis of false information issued by
the Department [sic] of Justice Canada, the Royal Canadian Mounted Police, Mr.
Fortin, and [FINTRAC]” (Applicants’ Factum at para 80).
[53]
On the contrary, the AGC argues that the
applicants have another remedy that is more appropriate than the mandamus
remedy. The applicants could challenge the accuracy, probative value, or
reliability of the documents before the Spanish court during the trial for
money laundering. For this purpose, the AGC filed as an expert report the
affidavit of Mr. Jacobo Rios Rodriguez to show that Spanish criminal law allows
for the accused to contradict the evidence filed by the prosecution by filing
evidence to the contrary themselves.
[54]
According to Mr. Rodriguez, criminal proceedings
in Spain involve three (3) stages: (1) the investigation (instrucción), which
is the Prosecutor’s responsibility, whose goal is gather indications of crime
against a person, and in which an investigating judge participates; (2) the
intermediary period during which the parties successively prepare their
statements of prosecution and defence, in which they propose the evidence that
they intend to use during the trial and where the prosecutor fully discloses
the relevant means of evidence; and (3) the oral phase of the judgment, with a
different judge than the investigating judge, during which the evidence that
was proposed earlier is submitted before the judge and the parties may amend or
maintain the findings. He confirms that the fact that evidence coming from
employees or organizations of a foreign State does not take away the rights of
an accused to contradict the contents thereof. An accused has a very broad
right to submit evidence and to contradict those by the prosecution, whether
they are public or private documents, provided that these means of evidence are
submitted when the statement of defence is submitted during the intermediary
period. If the judge does not accept the evidence proposed in the statement of
defence, the accused has the right to file an appeal once the oral phase of the
judgment is complete. During the oral phase, the accused may also argue that a
fact is not proven and ask the judge to use his or her power to demand ex
officio evidence.
[55]
As for the impact of the requested order, the
AGC argues that the applicants have not demonstrated that the mandamus
order would have an impact of Mr. St-Laurent’s risk of being convicted. They at
least had to prove the theory of the Spanish prosecution’s case and the
evidence that it proposed against Mr. St-Laurent, as well as establish how the
alleged errors in the documents are decisive for the outcome of the trial.
[56]
Even if the applicants allege that they have
only had confirmation that the Department of Justice Canada was responsible for
sending the documents since October 20, 2016, the Court notes that the Spanish
counsel for the applicants learned of Corporal Harrison’s report and the
enclosed documents in June 2012 during the investigation stage of the Spanish
case. Although the Court has very little information about criminal proceedings
in Spain, there are strong indications that the applicants have had the
opportunity since 2012 to submit all means of evidence to contradict the
evidence that the prosecution in Spain had available to it. In the event the
applicants are correct regarding the possibility of contradicting the contents
of a piece of evidence produced by a foreign authority, the Court is of the
opinion, like Martineau J. in 2016, that the applicants had the obligation to
have the evidence of Spanish law examined by a competent authority. Apart from
paragraph 7 of the sworn statement by the Spanish prosecutor dated May 23,
2017, which affirms that [translation]
“such documents, which come from official organizations
in Canada, prove, in the Spanish legal system, the veracity of their contents”,
the sole evidence of Spanish law in this case is that submitted by the AGC.
[57]
The Court also agrees with the AGC’s argument in
that there is no evidence of the impact of the requested order on the trial in
Spain. In fact, the applicants have not proven the “theory
of the case” of the Spanish authorities. The applicants’ evidence is
limited to a claim by counsel for Mr. St-Laurent in Spain that the charges
against Mr. St-Laurent are based on the documents challenged in this court.
Furthermore, the Court notes that the applicants have not filed the indictment
against Mr. St-Laurent. The only document currently before the Court was filed
by the applicants during the proceedings before Martineau J. in 2016, and it was
filed in support of the AGC’s affidavits. It is a four (4) page document in
Spanish that seems to be an extract of an indictment covering several persons,
including Mr. St-Laurent. There is no accompanying translation to that
document. It would have been appropriate for the applicants to file a
translation of the document to demonstrate the nature of the charges brought
against Mr. St-Laurent.
[58]
For the reasons explained above, the Court finds
that the applicants have not demonstrated that the conditions for issuing a mandamus
have been fulfilled.
C.
Application for order on the nature of a
declaratory judgment
[59]
In their factum, the applicants requested an
order by means of a certiorari, to declare illegal: (1) The sending by
FINTRAC to the RCMP; (2) the sharing with Corporal Harrisson by Mr. Fortin of
tables that the latter had created for tax purposes; (3) the sharing by an RCMP
officer of his report and its appendices with the Department of Justice Canada;
(4) the sharing by the Department of Justice Canada with the Department of
Justice of a foreign country and a foreign court inaccurate information from
the RCMP and the Department of Justice Canada itself. The applicants are also
requesting that the Court reserve all remedies, including those for monetary
relief.
[60]
Although the applicants qualify their remedy as
being certiorari, the Court considers that the order they are seeking is
rather a declaratory judgment. Regardless of how the order sought is qualified,
the Court is of the opinion that it is not appropriate to allow it because the
applicants have not articulated the legal basis of their claims regarding the
alleged illegality, except regarding the sending by FINTRAC to the RCMP, where
they refer to section 55 of the Act. Although the applicants cite several
sections of acts and of the Charter in their notice of application and
that they allege in their factum that the [TRANSLATION]
“applicants’ rights under the [Charter] have not
been respected”, it was up to them to make arguments in fact and law
with supporting case law to substantiate their claims that the disclosure of
information and sending of documents were illegal. In the absence of clear
arguments on the illegality and the alleged violations, and without the
demonstration of a causal link between the actions taken by the Department of
Justice Canada and the RCMP and the violation of the applicants’ rights, the
Court cannot rule on the statements sought by the applicants.
IV.
Conclusion
[61]
To conclude, the Court understands that the
applicants are trying by all means to prevent Mr. St-Laurent from being
convicted in Spain on the basis of inaccurate or erroneous information from
Canadian authorities. Unfortunately, the record submitted by the applicants
does not allow the Court to arrive at the conclusions they are seeking.
Consequently, the application for judicial review must be dismissed with costs
in favour of the Attorney General of Canada. If the parties cannot agree on the
amount of the costs, the Attorney General of Canada must serve and file a bill
of costs with supporting documents and written submissions no longer than three
(3) pages within ten (10) days of this decision. The applicants must serve and
file their written submissions within five (5) days after receiving the
submissions by the Attorney General of Canada.
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