Date:  20060516

Docket:  T-1471-05

Montréal, Quebec, the 16^th day of May 2006

Present: The Honourable Mr. Justice Shore

 

BETWEEN:

BUI Nhu Hung

Plaintiff

and

 

Government OF Canada, ReprEsentED

BY THE ATTORNEY GEnEral OF Canada

Defendant

and

THE OTTAWA police

Mis-en-cause

 

 

ORDER

 

 

            WHEREAS the Court approves the decision of Prothonotary Tabib, removing three short extemporaneous portions in her order of January 5, 2006, that were unwarranted;

 

            WHEREAS the first portion removed by the Court is in the first paragraph on page 3, between two commas, [translation] “, and as generously as possible,”;

            WHEREAS the second portion which the Court removes is in the second paragraph on page 3, also between two commas, [translation] “, it is apparent that even assuming the facts alleged are true,”;

 

            WHEREAS the third portion, also between two commas, which the Court removes, is in the second paragraph on page 5, [translation] “, even assuming,”;

 

            IN VIEW OF further the allegations of the plaintiff-applicant, like the evil of any racism in all humanity, this Court cites in the same vein a passage from the Supreme Court of Canada in Mugesera, at paragraph 17:

 

Regretfully, we must also mention that the motion and the documents filed in support of it include anti-Semitic sentiment and views that most might have thought had disappeared from Canadian society, and even more so from legal debate in Canada. Our society is a diverse one, home to the widest variety of ethnic, linguistic and cultural groups. In this society, to resort to discourse and actions that profoundly contradict the principles of equality and mutual respect that are the foundations of our public life shows a lack of respect for the fundamental rules governing our public institutions and, more specifically, our courts and the justice system.

 

(Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 39, [2005] S.C.J. No. 40 (QL)).

           

            THE COURT ORDERS that, after removal of these three particular portions, the decision by Prothonotary Tabib stand and that the plaintiff-applicant’s motion for appeal be dismissed with costs.

 

REASONS FOR ORDER

 

            As it agrees with the decision by Prothonotary Tabib, the Court accepts most of the arguments of the defendant-respondent.

 

FACTS

 

            In his statement of claim seeking damages, the plaintiff-applicant thus summarized his cause of action:

[translation]

 

The plaintiff’s cause of action is as follows: the ULTIMATE PURPOSE of this court action is to require the defendant, here the Government of Canada, to restore order, security and justice in Canada, which have long been undermined by the Jewish Mafia, as succinctly set out in paragraphs 2, 3, 4, 5 and 6 below.

 

The Government of Canada, with the Royal Canadian Mounted Police (RCMP) and the Canadian Security Intelligence Service (CSIS), have a duty to prevent the criminal and murderous activities of the Jewish Mafia in Canada and in the world.

 

The plaintiff is asking the Court to make a declaratory judgment to recognize the guilt of the defendant as a result of the inertia of officers of the RCMP and CSIS in the fight against the crimes of the Jewish Mafia for fifteen years.

 

The plaintiff is asking the Court to render a judgment directing the Government of Canada to terminate all the criminal activities of the Jewish Mafia on Canadian soil and make affected governments around the world aware of the misdeeds of this criminal organization.

 

The plaintiff is asking the Court to render a judgment directing the plaintiff to conduct an investigation to render the Jewish criminals harmless in Canada, especially in the Ottawa Police Force involved in cases 04-CV-027972 and 04‑CV‑028252 in the Ottawa Superior Court. The Ottawa Police Hate Crimes Unit must be dissolved, as it only serves to promote the interests of the criminal Jewish Mafia.

 

Jewish criminals in the Ottawa Police Force involved in cases 04-CV-027972 and 04‑CV-028252 made unlawful arrests and committed serious perjury in order to win these cases against the plaintiff and his female friend NGUYEN Thi Minh, who were victims of police conspiracy with the international Jewish Mafia in this matter. The plaintiff demands that the defendant be held jointly liable with the Ottawa Police (mis-en-cause in this case) for the claims referred to in cases 04-CV-027972 and 04‑CV-028252.

 

 

            The plaintiff-applicant sought the following relief against the defendant-respondent, the Attorney General of Canada (AGC):

 

            [translation]

ALLOW              the Plaintiff’s action;

 

DECLARE          the Government of Canada responsible for the present state of insecurity and injustice in Canada and the U.S., by not trying to resist the murderous intrigues of the Jewish Mafia;

 

the Government of Canada has failed to prevent attacks orchestrated by the Jewish Mafia, like that of September 11, 2001 in the U.S.;

 

the Government of Canada responsible for the plaintiff’s misfortunes when he did not receive proper protection against crimes by the Jewish Mafia;

 

CONDEMN       the Government of Canada for not having properly supervised the staff in its RCMP and CSIS organizations;

 

the Government of Canada for letting the Jewish Mafia conduct oppressive action against the plaintiff, who is a fighter for world peace and justice;

 

the Government of Canada to compensate the plaintiff: to pay compensation jointly with the other victims of unlawful arrest and perjury in cases 04-CV-027972 and 04-CV-028252 (Ottawa Court House);

 

the pro-Jewish Mafia officers of the Ottawa Police for making unlawful arrests on July 14, 2003 and then fabricating evidence for perjury on October 28, 2004, offences which stained the honour of all Ottawa police officers;

 

ORDER              the Government of Canada to restore justice, order and security for all persons in Canada;

 

the Government of Canada to cause to be eliminated the members of the Jewish Mafia involved in cases 04-CV-027972 and 04‑CV‑028252 in Ottawa and cause the Jewish Mafia tool known as the Ottawa Police Hate Crimes Unit to be dissolved;

 

the Government of Canada to eliminate members of the Jewish Mafia from its entire administrative system, specially the RCMP and CSIS;

 

the Government of Canada to cause the plaintiff and his female friend Minh to be compensated for the damage sustained by reason of the deliberate acts of members of the Ottawa Police Force, claims mentioned in cases 04-CV-027972 and 04-CV-028252 in Ottawa;

 

the Government of Canada to inform all interested countries of the secret procedures of the Jewish Mafia as described in the plaintiff’s publications already given to the RCMP, in order to protect innocents in the world.

 

 

            The Court agrees that, following the three aforesaid deletions (in accordance with the Reasons for Order, at pages 11 to 16), the order by Prothonotary Tabib is correct in law and in fact and, as she ruled, the plaintiff-applicant’s statement of claim must be struck out on the ground that it disclosed no cause of action.

 

ISSUES

            The issues are the following:

(i)          What is the standard of review that should be applied by this Court to the order by Prothonotary Tabib pursuant to rule 51 of the Federal Courts Rules (1998), SOR/98-106 (the Rules)?

 

(ii)          Can the plaintiff-applicant file evidence – in the appeal at bar – which was not filed before Prothonotary Tabib?

 

(iii)         In view of the fact that the defendant-respondent acknowledged that the question raised by the plaintiff-applicant – in the appeal at bar – is central to his case, does the plaintiff-applicant’s statement of claim disclose a cause of action?

 

 

BRIEF STATEMENT OF PROPOSITIONS

 

(i)         What is the standard of review that should be applied by this Court to the order by Prothonotary Tabib pursuant to rule 51 of the Federal Courts Rules (1998), SOR/98‑106 (the Rules)?

 

            Rule 51 reads as follows:

 

            In addition, this Court has consistently approved the test laid down in Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425, [1993] F.C.J. No. 103 (QL), by Mr. Justice Mark R. MacGuigan:

 

. . . I am of the opinion that such orders sought to be disturbed on appeal only where it has been made to appear that

 

(a)        as they are clearly wrong, in the sense that the exercise of discretion by the prothonotary was based upon a wrong principle or upon a misapprehension of the facts, or

 

(b)        in making them, the prothonotary improperly exercised his discretion on a question vital to the final issue of the case.

 

In each of these classes of cases, the Motions Judge will not be bound by the opinion of the prothonotary; but will hear the matter de novo and exercise his or her own discretion.

 

The order by Prothonotary Tabib is central to the final issue of this case.

 

            (ii)        Can the plaintiff-applicant submit evidence – in the appeal at bar – which was not submitted before Prothonotary Tabib?

 

            In Camoplast Inc. v. Soucy International Inc., 2001 FCTD 169, [2001] F.C.J. No. 330 (QL), the respondent objected to the new evidence submitted by the appellant in connection with an appeal de novo from an order made by Prothonotary Richard Morneau.

 

            Mr. Justice Pierre Blais allowed this objection as follows :

 

As counsel for the plaintiff very properly pointed out, when the Court decides that it must retry a case de novo in order to exercise its own discretion, it must hear the case as it stood at this time of the decision by the prothonotary; the consistent precedents on this point are clear: James River Corp. of Virginia v. Hallmark Cards Inc. et al. (1997), 72 C.P.R. (3d) 157, at page 169:

 

. . . A motion is commenced by a notice of motion, not a notice of appeal, and is to be supported by an affidavit setting out “all the facts on which the motion is based that do not appear from the record” . Despite this seeming ambiguity in the Federal Court Rules, I understand the procedure established thereby to be, as noted above, an appeal based on the material that was before the prothonotary. This is consistent with the decisions in Woods Canada Ltd. v. Harvey Woods Inc. (November 30, 1994), [1994] F.C.J. No. 1795 (QL) and Symbol Yachts Ltd. v. Pearson, [1996] 2 F.C. 391, 107 F.T.R. 295. In some circumstances new evidence may of course be entertained; see Federal Court Rule 1102 and the jurisprudence thereunder. Such circumstances do not, however, exist in the present case.

[My emphasis.]

 

Symbol Yachts et al. v. Pearson (F.C.T.D.), [1996] 2 F.C. 391, at page 398:

 

The present matter is an appeal from the Prothonotary’s decision pursuant to subsection 336(5) of the Rules. For me to disturb the Prothonotary’s order, I must be satisfied that his order was “clearly wrong” or that the order raises a question “vital to the final issue of the case”. In Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425, Mr. Justice MacGuigan of the Federal Court of Appeal explained as follows the applicable standard of review where appeals are taken from discretionary orders of a prothonotary.

 

. . .

 

In the present instance, there is no doubt in my mind that the Prothonotary’s order raises a question vital to the final issue of the case since the effect of the Prothonotary’s order is to terminate the plaintiff’s action. However, I can only examine the Prothonotary’s order in the light of the evidence which was before him when he made his order. Consequently, I cannot, and so advised the parties at the hearing, consider the affidavits which the plaintiffs seek to introduce into the record. I do not know why these affidavits were not filed by the plaintiffs in support of their September 22, 1995 application but, in my view, that evidence, if available, should have been placed before the Prothonotary.

 

This is an appeal of the Prothonotary’s decision and it is now too late to present evidence which should have been made earlier. In my view, the purpose of these new affidavits is to correct the shortcomings of the evidence submitted to the Prothonotary. The facts sworn to, for example in the Beesley affidavit, are facts which could have been put before the Prothonotary but were not. The affidavit covers the time period from the initiation of the litigation in 1988 to October 30, 1995.

 

It was for these reasons that I informed the parties during the hearing that I would not allow the plaintiffs to introduce into the record supplementary affidavits.

 

(iii)         In view of the fact that the defendant-respondent acknowledged that the issue raised by the plaintiff-applicant – in the appeal at bar – is vital to his case, does the plaintiff-applicant’s statement of claim disclose a cause of action?

 

            Before answering this question, the defendant-respondent must determine the burden of proof it must meet.

 

                        Defendant-respondent’s burden of proof on the first issue

 

            In Canada (Attorney General) v. Inuit Tapirisat of Canada et al., [1980] 2 R.S.C. 735, Mr. Justice James Wilfrid Estey wrote at paragraph 4:

As I have said, all the facts pleaded in the statement of claim must be deemed to have been proven. On a motion such as this a court should, of course, dismiss the action or strike out any claim made by the plaintiff only in plain and obvious cases and where the court is satisfied that “the case is beyond doubt” . . .

 

            The defendant-respondent argued that it is plain and obvious that the case discloses no cause of action and that in fact the order by Prothonotary Tabib was correct in law and in fact.

 

                        Does plaintiff-applicant’s statement of claim disclose clause of action?

 

            Rule 221 provides:

 

            In order to undertake review of the aforementioned issue, the relief asked must be analyzed by category:

            (iv)       declaratory relief;

            (v)        compensatory relief, in relation to the Ottawa police officers;

            (vi)       writ of mandamus.

                        Declaratory relief

 

            The plaintiff-applicant is asking this Court to:

 

DECLARE          the Government of Canada responsible for the present state of insecurity and injustice in Canada and the U.S., by not trying to resist the murderous intrigues of the Jewish Mafia;

 

the Government of Canada has failed to prevent attacks orchestrated by the Jewish Mafia, like that of September 11, 2001 in the U.S.;

 

the Government of Canada responsible for the plaintiff’s misfortunes when he did not receive proper protection against crimes by the Jewish Mafia;

 

CONDEMN       the Government of Canada for not having properly supervised the staff in its RCMP and CSIS organizations;

 

the Government of Canada for letting the Jewish Mafia conduct oppressive action against the plaintiff, who is a fighter for world peace and justice . . .

 

 

            In Laurentian Pilotage Authority v. Pilotes du Saint-Laurent Central Inc., [1993] F.C.J. No. 1284, Mr. Justice Louis-Marcel Joyal cited Lord Dunedin in Commercial and Industrial Bank v. British Bank of Foreign Trade, [1921] A.C. 438 (H.L.) on the substantive conditions that must be met for a declaratory order to be made:

 

The question must be a real and not a theoretical question; the person raising it must have a real interest to raise it; he must be able to secure a proper contradictor, that is to say, someone presently existing who has a true interest to oppose the declaration sought.

 

 

            The question raised by the plaintiff-applicant is not a real one and the plaintiff-applicant does not have a real interest in asking this Court to make this declaratory judgment.

 

                        Absence of real question

 

            Rule 64 provides:

 

            Also, in accordance with that Rule, the Court has held that it does not have jurisdiction to make a declaration as to facts.

 

            Thus, in Gill v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 944, Mr. Justice Max Teitelbaum wrote:

I am satisfied that I, as a judge of the Federal Court of Canada, do not have the jurisdiction to make such declarations. I agree with the submission of counsel for the Defendant that only legal rights may be declared and that, in this case, the Plaintiff is seeking declarations of fact. (Emphasis by the Court)

 

(See also paragraph 22 of Laurentian Pilotage Authority, supra, and paragraph 27 of Brychka v. Canada, [1998] F.C.J. No. 124)

 

            The declaration sought by the plaintiff-applicant only relates to facts:

·        Canada is responsible for the current state of insecurity in this country and the U.S.;

 

·        Canada has failed to take preventive measures against attacks;

 

·        Canada is responsible for the plaintiff’s misfortunes;

 

·        Canada has not properly supervised the RCMP and CSIS;

 

·        Canada has allowed a criminal organization to act oppressively against the plaintiff.

 

            As this Court does not have the power under rule 64 of the Rules, and this is confirmed by the case law, to make a declaration as to facts, the statement of claim does not disclose a real question.

 

            Therefore, the first substantive condition that must be met for a declaratory order to be made has not been met.

 

            As the conditions for issuing a declaratory order are cumulative, the following analysis has but an academic interest.

 

            A second substantive argument precludes the making of the declaration sought by the plaintiff-applicant.

 

                        No real interest raised

 

            In Morneault v. Canada (Attorney General), [2001] F.C. 30, [2001] F.C.J. No. 705 (C.A.) (QL), the applicant was seeking by way of judicial review to have quashed the statements contained in the conclusions of the report by the Commission of Inquiry into the Deployment of Canadian Forces in Somalia on the ground that they injured his reputation.

 

            Mr. Justice Arthur Stone, speaking for a unanimous Court, made the following comments regarding the interest which must exist for a declaratory judgment to be granted:

There was a time when declaratory relief was not available if it would have no legal effect, but this is no longer so. In Merrick v. Nott-Bower, [1964] 1 All E.R. 717, at page 721, Lord Denning stated:

 

If a real question is involved, which is not merely theoretical, and on which the court’s decision gives practical guidance, then the court in its discretion can grant a declaration.  A good instance is the recent case on the football transfer system decided by Mr. Justice Wilberforce, Eastham v. Newcastle United Football Club, Ltd., [1963] 3 All E.R. 139.  Counsel for the plaintiff said that, in this particular case, the declaration might be of some use in removing a slur which was cast against the plaintiffs by the transfer.  He also put us on the wider ground of the public interest that the power to transfer can only be used in the interest of administrative efficiency and not as a form of punishment.  He said that it would be valuable for the court so to declare.  Again on this point, but without determining the matter, it seems to me that there is an arguable case that a declaration might serve some useful purpose.

 

Salmon L.J., concurring, added at page 774:

 

It is said: Even if the plaintiffs’ rights under the regulations were infringed, what good could the remedies which are claimed by the plaintiffs do them?  Can they benefit by these declarations?  If a plaintiff seeks some declaration in which he has a mere academic interest, or one which can fulfil no useful purpose, the court will not grant the relief claimed.  In this case, however, again without deciding the point in any way, it seems to me clearly arguable that, if the declarations are made, they might induce those in authority to consider the plaintiffs’ promotion, there being some evidence that the alleged transfers by way of punishment have prejudiced, and whilst they remain will destroy, the plaintiffs’ chances of promotion.

 

The principle was applied by Mr. Justice Pratte (as he then was) in Landreville v. Canada, [1973] F.C. 1223 (T.D.), at 1231 and very recently, again in the context of a commission of inquiry, in Peters v. Davidson, [1999] 2 NZLR 164 (C.A.), at 186-187.  The Motions Judge granted declaratory relief in respect of this error.  I am satisfied that this remedy was available notwithstanding Cory J.’s characterization of a report of a commission of inquiry in Krever, supra, as having “no legal consequences”.  Cory J. acknowledged at the same time that it is precisely because the reputation of a witness is at stake that procedural fairness must be accorded for, as he put it at paragraph 56:  “For most, a good reputation is their most highly prized attribute”.  In my view the respondent does have an interest in protecting his reputation.  It is also to be noted that rule 64 of the Federal Courts Rules, 1998 [SOR/98-106] provides for the granting of declaratory relief, whether or not any consequential relief is or can be claimed.

 

It seems to me that while a declaration would not affect a legal right, it would serve the useful purpose of removing any possible, though perhaps unintended, harm that may have been caused to the respondent’s reputation by the statement in the introductory chapter to Volume 4 of the Report.  I would restrict the declaration accordingly.

 

 

            From reading the foregoing passage, a declaratory order may be made even when it will have no practical effect on the parties provided the plaintiff has a real interest in the said order being made.

 

            In Merricks v. Nott-Bower, [1964] 1 All E.R. 717 (C.A.), cited by Mr. Justice Stone in Morneault, supra, the plaintiff’s interest was to remove from the transfer of a football player from one team to another any blame attaching to him.

 

            In Morneault, supra, the plaintiff’s interest was in restoring his reputation, damaged in the conclusions contained in the report of the Commission of Inquiry into the Deployment of Canadian Forces in Somalia.

 

            In this case, the plaintiff’s only interest is based on anti-Semitic beliefs which have no place in Canadian society, as noted by the country’s highest court in Mugesera, supra:

Regretfully, we must also mention that the motion and the documents filed in support of it include anti-Semitic sentiment and views that most might have thought had disappeared from Canadian society, and even more so from legal debate in Canada. Our society is a diverse one, home to the widest variety of ethnic, linguistic and cultural groups. In this society, to resort to discourse and actions that profoundly contradict the principles of equality and mutual respect that are the foundations of our public life shows a lack of respect for the fundamental rules governing our public institutions and, more specifically, our courts and the justice system.

 

            Therefore, the plaintiff-applicant did not raise any real interest warranting this Court to make the declaratory conclusions he is seeking.

*     *     *

            In addition, the relief sought by the plaintiff-applicant, in view of this absence of interest,  will have no practical effect on the rights of the parties.

 

            Indeed, no practical effect would ensue if this Court were to find that:

·        Canada is responsible for the current state of insecurity in this country and the U.S.;

 

·        Canada has failed to take preventive measures against attacks;

 

·        Canada is responsible for the plaintiff’s misfortunes;

 

·        Canada has not properly supervised the RCMP and CSIS;

 

·        Canada has allowed a criminal organization to act oppressively against the plaintiff.

 

            Therefore, in the light of this absence of any practical effect on the rights of the parties, together with the absence of any real questions to be decided and of any real interest of the plaintiff‑applicant, declaratory relief sought by the plaintiff-applicant must be denied.

 

            My analysis will bear on the compensatory relief asked in relation to the acts of the Ottawa police officers.

 

                        Compensatory relief sought in relation to the plaintiff’s arrest

 

            The plaintiff-applicant sought from this Court the following relief:

 

[translation]

 

CONDEMN

 

the Government of Canada to compensate the plaintiff: to pay compensation jointly with the other victims of unlawful arrest and perjury in cases 04-CV-027972 and 04-CV-028252 (Ottawa Court House) . . .

 

the pro-Jewish Mafia officers of the Ottawa Police for making unlawful arrests on July 14, 2003 and then fabricating evidence for perjury on October 28, 2004, offences which stained the honour of all Ottawa police officers.

 

ORDER

 

The Government of Canada to cause the plaintiff and his female friend Minh to be compensated for the damage sustained as a consequence of the deliberate acts of members of the Ottawa Police Force, claims mentioned in cases 04-CV-027972 and 04‑CV-028252 (Ottawa Court House).

 

 

                        Facts pertaining to the relief sought

 

            On July 14, 2003, the plaintiff was arrested by police officers of the City of Ottawa for a violation of section 319 of the Criminal Code, R.S.C. 1985, c. C-46 (public incitement of hatred): the plaintiff and his female friend were distributing pamphlets containing anti-Jewish propaganda on Parliament Hill (paragraph 40 of the plaintiff-applicant’s statement of claim, supra; paragraph (ii) of the decision by Mr. Justice Albert Roy, 04-CV-027972 and 04-CV-028252).

 

            On February 12, 2004, the charges against the plaintiff were dropped [translation] “as the Ontario prosecutor refused to approve the prosecution” (paragraph (iii) of decision by Mr. Justice Roy, supra).

 

            In June and July 2004, statements of claim seeking damages (Nos. 04-CV-027972 and 04‑CV-028252) were filed against the City of Ottawa and the Ottawa Police Force by the plaintiff (paragraph (iv) of decision by Mr. Justice Roy, supra).

 

            On February 3, 2005, these statements of claim seeking damages were struck out by Mr. Justice Roy following the submission by the defendants [translation] “of a motion to dismiss” on the ground that they were prescribed (decision by Mr. Justice Roy, supra).

 

                        Exclusion of civil liability on the part of the defendant-respondent

 

            In support of his argument pertaining to the liability of the defendant-respondent, the plaintiff-applicant alleged that the RCMP, Ottawa police officers and other persons described in his statement of claim acted wrongfully toward him.

 

                        Allegations of wrongful acts on the part of RCMP

 

            The plaintiff-applicant argued that the RCMP was responsible for his arrest on July 14, 2003, in that the RCMP did not pay attention to a report prepared by the plaintiff-applicant, entitled [translation] “The Vampires who have been Sucking American Blood for 45 years”.

 

            According to the allegations of the plaintiff-applicant, if the RCMP had taken his report into account, the attacks in the U.S. on September 11, 2001 would have been avoided, other mass killings such as that of the polytechnic would have been avoided, the sending of envelopes containing anthrax to the U.S. would have been avoided, and finally, as alleged specifically in paragraph 70 of his statement of claim, [translation] “the plaintiff would have won his case against the Ottawa Police” following his arrest for public incitement of hatred by distributing pamphlets containing anti-Jewish propaganda.

 

            The allegations of the plaintiff-applicant disclose no valid cause of action as to the alleged liability of the RCMP.

 

            The enforcement of the Criminal Code is dealt with in the definition of the Attorney General contained in section 2 of the Criminal Code:

 

 

            Indeed, RCMP officers were in no way involved in the arrest of the plaintiff-applicant on July 14, 2003.

 

            Thus, the defendant-respondent could in no way be held liable for the alleged wrongful acts committed when the plaintiff-applicant was arrested on July 14, 2003.

 

            In any event, even if the RCMP had applied their mind to the work entitled [translation] “Vampires who have been Sucking American Blood for 45 Years”, that would not have enabled the plaintiff to win his case.

 

            The plaintiff-applicant’s actions for damages were struck out on the ground that they were statute‑barred (Nhu Hung Bui v. The City of Ottawa and the Ottawa Police, 04-CV-027972 and 04‑CV‑028252, February 3, 2005, per Mr. Justice Roy, supra).

 

            Accordingly, even if the RCMP had taken any action, the plaintiff-applicant’s actions for damages would still have been struck out as being statute-barred.

 

            Also, the defendant-respondent cannot be held responsible, as argued by the plaintiff‑applicant, for alleged wrongful acts committed by the Ottawa police officers and persons described in his statement of claim.

 

                        Allegation of wrongful acts on the part of Ottawa police officers and persons described in plaintiff-applicant’s statement of claim

 

            Section 3 of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, s. 3; S.C. 2001, c. 4, s. 36 (the Act), sets out the parameters of civil liability by the Crown in right of Canada.

 

 

            Section 2 of the Act defines the term “servant”:

 

 

            The plaintiff-applicant alleged that Ottawa police officers and the following persons committed wrongful acts against him at the time of his arrest on July 14, 2003, which he described as unlawful:

·                    Det.-Sgt. Will Hinterberger of the Ottawa Police;

 

·                    Judge Jolicoeur of the Ontario Criminal Court;

 

·                    the Ottawa Police Chief;

 

·                    Prothonotary Beaudoin of the Ontario Court;

 

·                    Michael Berstein, deputy of the Attorney General of Ontario;

 

·                    the Ontario Civilian Commission on Police Services.

 

Ottawa police officers and the various individuals named by the plaintiff-applicant in paragraphs 51 to 57 of his statement of claim were not servants of the federal government.

 

            Justice of the Peace Michel F. Jolicoeur is independent of the Crown in right of Canada (paragraphs 5 and 6, Bélanger and Talbot v. Le Ministre de la justice et Le Procureur général du Canada, July 27, 2005, 500-17-025927-057).

 

            The other individuals whom the plaintiff-applicant alleged were at fault, as described in paragraph 56, were employed by the Ontario provincial government and therefore were not servants of the federal government.

 

            Finally, pursuant to subsection 17(1) of the Federal Courts Act, R.S.C. 1985, c. F-7, this Court does not have jurisdiction to make an order against the persons named in paragraph 56 hereunder in that this Court’s jurisdiction is limited to actions against the Crown in right of Canada:

 

 

            Indeed, this Court does not have jurisdiction to render a judgment against a judge who is independent of the Crown in right of Canada or employees of the Ontario provincial government.

 

            Therefore, it is clear that this Court clearly cannot award compensation as a result of the plaintiff-applicant’s arrest.

 

            The plaintiff-applicant’s statement of claim asked the Court to issue a writ of mandamus:

[translation]

                        Writ of mandamus

            The plaintiff is asking this Court to issue a writ of mandamus so as to:

ORDER              the Government of Canada to restore justice, order and security for all individuals in Canada;

 

the Government of Canada to cause to be eliminated the members of the Jewish Mafia involved in cases 04-CV-027972 and 04‑CV‑028252 in Ottawa and cause the Jewish Mafia tool known as the Ottawa Police Hate Crimes Unit to be dissolved;

 

the Government of Canada to eliminate members of the Jewish Mafia from its entire administrative system, specially the RCMP and CSIS;

 

the Government of Canada to cause the plaintiff and his female friend Minh to be compensated for the damage sustained as a consequence of the deliberate acts of members of the Ottawa Police Force, claims mentioned in cases 04-CV-027972 and 04‑CV‑028252 in Ottawa;

 

the Government of Canada to inform all interested countries of the secret procedures of the Jewish Mafia as described in the plaintiff’s publications already given to the RCMP, in order to protect innocents in the world.

 

            There are substantive arguments as to why the writ of mandamus sought by the plaintiff‑applicant clearly cannot issue.

 

                                    Substantive reasons precluding the issuance of a writ of mandamus

 

 

            In Apotex Inc. v. Canada (Attorney General), [1994] 1 FC. 742, [1993] F.C.J. No.1098 (C.A.) (QL), the Federal Court of Appeal set out the tests which must be met for a writ of mandamus to issue.

 

            These basic conditions that must be met before a writ of mandamus can issue are:

1.         there must be a legal duty to act;

 

2.         the duty must be owed to the applicant;

 

3.         there is a clear right to performance of the duty;

 

4.         no other remedy is available to the applicant;

 

5.         the order sought will be of some practical value or effect;

 

6.         in the exercise of its discretion the Court finds no equitable bar to the relief sought;

 

7.         on a balance of convenience, an order in the nature of mandamus should (or should not) issue;

 

8.         where the duty sought to be enforced is discretionary, the nature of the said duty and the way the discretion is exercised must be considered.

 

            The relief sought is in flagrant violation of the right to life protected in Canada by section 7 of the Canadian Charter of Rights and Freedoms, Part I, Schedule B of the Canada Act, 1982, 2982, c. 11 (U.K.) (the Charter), and in international law by section 6 of the International Covenant on Civil and Political Rights.

 

            Section 7 of the Charter provides:

 

            Section 6 of the International Covenant on Civil and Political Rights provides:

 

            In view of the foregoing, it is clear that the writ of mandamus sought by the plaintiff‑applicant cannot issue from this Court.

 

            For these reasons, the Court dismisses the plaintiff-applicant’s motion for appeal with costs.

 

 

“Michel M.J. Shore”

 

 

 

 

 

 

 

 

Certified true translation

François Brunet, LLB, BCL

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

 

DOCKET:                                          T-1471-05

 

STYLE OF CAUSE:                          BUI Nhu Hung v. Government of Canada Represented by the attorney General of Canada and THE Ottawa POLICE

 

 

PLACE OF HEARING:                    Montréal, Quebec

 

DATE OF HEARING:                      May 11, 2006

 

ORDER AND REASONS FOR

ORDER BY:                                      The Honourable Mr. Justice Shore

 

DATED:                                             May 16, 2006

 

APPEARANCES:

 

Bui Nhu Hung	FOR THE PLAINTIFF
Sébastien Gagné   Andrew A.H. Sherwood	FOR THE DEFENDANT   FOR THE MIS-EN-CAUSE

 

SOLICITORS OF RECORD:

 

BUI NHU HUNG	FOR THE PLAINTIFF
JOHN H. SIMS, Q.C. Deputy Attorney General of Canada   ANDREW A.H. SHERWOOD Legal Services, City of Ottawa	FOR THE DEFENDANT     FOR THE MIS-EN-CAUSE