Date: 20140127
Docket: T-1823-12
Citation: 2014 FC 86
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, January 27, 2014
PRESENT: The Honourable Mr.
Justice Annis
BETWEEN:
|
|
AGNAOU, YACINE
|
|
|
|
Applicant
|
|
and
|
|
|
ATTORNEY GENERAL OF
CANADA
|
|
|
|
Respondent
|
|
|
|
|
REASONS
FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
This is an application pursuant to section 51.2
of the Public Servants Disclosure Protection Act, SC 2005, c 46 [the Act
or the PSDPA], for judicial review of a decision dated September 6, 2012 [the
decision], of the Office of the Public Sector Integrity Commissioner [the Office
of the PSIC], which refused to accept the applicant’s disclosures of
wrongdoing.
II. Background
[2]
The
applicant, Yacine Agnaou, worked as a federal Crown prosecutor at the Public
Prosecution Service of Canada [PPSC], Quebec Regional Office [QRO]. He worked
at the PPSC from October 20, 2003, to June 2009, as part of the
Economic Crime Team. In October 2008, the applicant was assigned several
files by PPSC management. These files included a certain file “A”, in which the
applicant wanted to prosecute under the Income Tax Act, RSC, 1985, c 1
(5th Supp) [the ITA]. There is no need to go into the details of this file in
the context of the present judicial review.
[3]
On
November 4, 2008, the applicant informed one of the deputy chief federal
prosecutors that he wished to prosecute in file “A”. The chief prosecutor
informed him that she believed it to be premature to prosecute in the file; in
response, the applicant shared his objections with her. On December 24,
2008, the applicant, who, as a result of their disagreement on file “A”,
believed that he could no longer trust his supervisory relationship with this
chief prosecutor, asked to be assigned to a different supervisor, a request the
Management Committee agreed to. On January 27, 2009, the applicant met
with his new supervisor and shared his views on file “A”. The new supervisor
expressed a similar opinion to that of the first supervisor, namely that it
would be wise not to prosecute too quickly in file “A”.
[4]
Following
this meeting, the applicant became convinced that the mission of these managers
was to ensure that no proceedings were instituted in file “A”.
[5]
On
February 10, 2009, the applicant had a meeting with the general counsel of
the Economic Crime Team, during which the applicant informed this general
counsel that he wished to prosecute in file “A”.
[6]
Between
February 10 and February 24, 2009, a number of meetings and
conversations took place between the three managers and the applicant, in which
the applicant was able to explain his position on the authorization of
proceedings in file “A”. A final meeting was held on February 24, 2009,
between the applicant and the three managers, during which it became clear that
the applicant’s position had become irreconcilable with that of the managers.
[7]
On
March 9, the General Counsel Committee met without the applicant’s knowledge
to recommend not authorizing prosecution in this file.
[8]
On
March 24, 2009, the applicant’s managers informed him of the management
team’s final decision: not to authorize prosecution in file “A”.
[9]
Following
these events, the applicant decided to disclose what he believed to be
wrongdoing on the part of his superiors at the PPSC. After a discussion with
the Registrar of the Office of the PSIC on June 9, 2009, he decided not to
make a disclosure right away, explaining in his memorandum of fact and law that
he [translation] “had noted that
there were no objective criteria to guide how his disclosure would be handled, [and]
there was an arbitrariness in how discretion was exercised within the office”.
[10]
On
June 29, 2009, the applicant informed the Registrar of the Office of the
PSIC that he was leaving the PPSC to go on study leave and that he wished to
take some time to think before making a disclosure.
III. The
applicant’s disclosure
[11]
On
October 13, 2011, the applicant filed a disclosure with the person
responsible for the initial assessment of disclosures at the Office of the PSIC,
in which he alleged that the actions of the managers at the QRO and individuals
at PPSC National Headquarters failed to comply with several laws of Canada. He
alleged that his superiors and their subordinates had committed wrongdoing when
they objected to the filing of charges in file “A” using means that undermined
the integrity of Canada’s objective, transparent and independent system of
prosecution.
[12]
An
analyst from the Office of the PSIC analyzed the applicant’s disclosure and
recommended not dealing with it; this recommendation was verified by a case
analysis manager and Legal Services before it was submitted to the Deputy
Commissioner.
[13]
The
Deputy Commissioner upheld the analysis and the recommendation, and refused to
deal with the disclosure.
IV. Decision
at issue
[14]
In
a letter dated September 6, 2012, the Deputy Commissioner refused to deal
with the applicant’s disclosure on the ground that the events described in the
disclosure were the result of a balanced, informed decision-making process and that
there was no information to suggest that any wrongdoing had been committed
(paragraphs 24(1)(e) and (f) of the Act).
Paragraph 8(a) of the Act
[15]
Regarding
paragraph 8(a) of the Act, the Deputy Commissioner noted that the
relevant provisions of the ITA (231.2, 231.6 and 238) relate to the requirement
to provide documents or information and to the offences and punishment relating
to violations of sections 230 to 232 of the ITA. These provisions describe
the obligations of taxpayers and not those of the managers of the QRO; the
section cannot therefore be applied to wrongdoing committed by the managers of
the QRO for the purpose of an investigation initiated by the Office of the PSIC.
Paragraph 8(a) of the Act
[16]
Regarding
paragraph 8(c) of the Act, the Deputy Commissioner noted that the Federal
Prosecution Service Deskbook speaks of the delegated independence of Crown
counsel. The Deskbook notes that responsible prosecutorial decision-making
often requires consultation with colleagues or superiors, so although a large
measure of independence is conferred on Crown counsel, absolute discretion is
not.
[17]
The
applicant alleged that the facts submitted in support of his recommendations to
prosecute were more than sufficient to satisfy anyone that there was a
reasonable likelihood of conviction and that the public interest required
prosecution under section 238 of the ITA. The applicant also alleged that
the decision not to prosecute was based on false information.
[18]
The
Deputy Commissioner nonetheless maintained that the decision of the chief prosecutors
of the PPSC not to prosecute in file “A” was based on the facts of the file and
that they were authorized to make such a decision in an objective and
independent manner. The fact that the applicant did not agree with the decision
does not suggest that wrongdoing had been committed. Moreover, regarding the
QRO’s practices in respect of the decision not to involve the applicant in the final
decision, and the applicant’s allegation that two managers of the PPSC had an [translation] “unusual” interest in file “A”,
the information provided by the applicant did not support his allegations of
gross mismanagement.
V. Issues
1. What is the applicable
standard of review?
2. Did the procedure
followed by the Deputy Commissioner breach procedural fairness?
3. Was the Deputy Commissioner’s
decision reasonable?
VI. Statutory
provisions
|
Public
Servants Disclosure Protection Act, SC 2005, c 46
8. This Act
applies in respect of the following wrongdoings in or relating to the public
sector:
(a) a
contravention of any Act of Parliament or of the legislature of a province,
or of any regulations made under any such Act, other than a contravention of
section 19 of this Act;
. . .
(c) a gross
mismanagement in the public sector;
|
Loi sur la
protection des fonctionnaires divulgateurs d’actes répréhensibles,
LC 2005, ch 46
8. La présente
loi s’applique aux actes répréhensibles ci-après commis au sein du secteur
public ou le concernant :
a) la
contravention d’une loi fédérale ou provinciale ou d’un règlement pris sous
leur régime, ŕ l’exception de la contravention de l’article 19 de la
présente loi;
[…]
c) les cas
graves de mauvaise gestion dans le secteur public;
|
|
12. A public
servant may disclose to his or her supervisor or to the senior officer
designated for the purpose by the chief executive of the portion of the
public sector in which the public servant is employed any information that
the public servant believes could show that a wrongdoing has been committed
or is about to be committed, or that could show that the public servant has
been asked to commit a wrongdoing.
|
12. Le
fonctionnaire peut faire une divulgation en communiquant à son supérieur
hiérarchique ou à l’agent supérieur désigné par l’administrateur général de l’élément
du secteur public dont il fait partie tout renseignement qui, selon lui, peut
démontrer qu’un acte répréhensible a été commis ou est sur le point de l’être,
ou qu’il lui a été demandé de commettre un tel acte.
|
|
13. (1) A
public servant may disclose information referred to in section 12 to the
Commissioner.
(2) Nothing
in this Act authorizes a public servant to disclose to the Commissioner a
confidence of the Queen’s Privy Council for Canada in respect of which
subsection 39(1) of the Canada Evidence Act applies or any information
that is subject to solicitor-client privilege. The Commissioner may not use
the confidence or information if it is disclosed.
|
13. (1) Le
fonctionnaire peut faire une divulgation en communiquant au commissaire tout
renseignement visé ŕ l’article 12.
(2) La
présente loi n’a pas pour effet d’autoriser le fonctionnaire ŕ
communiquer au commissaire des renseignements confidentiels du Conseil privé
de la Reine pour le Canada visés par le paragraphe 39(1) de la Loi sur la
preuve au Canada ou des renseignements protégés par le secret
professionnel liant l’avocat ŕ son client. En cas de communication de
tels renseignements, le commissaire ne peut pas les utiliser.
|
|
22. The
duties of the Commissioner under this Act are to
. . .
(b) receive,
record and review disclosures of wrongdoings in order to establish whether
there are sufficient grounds for further action;
|
22. Le
commissaire exerce aux termes de la présente loi les attributions
suivantes :
[...]
b) recevoir,
consigner et examiner les divulgations afin d’établir s’il existe des motifs
suffisants pour y donner suite;
|
|
24. (1) The
Commissioner may refuse to deal with a disclosure or to commence an
investigation -- and he or she may cease an investigation -- if he or she is
of the opinion that
. . .
(e) the
subject-matter of the disclosure or the investigation relates to a matter
that results from a balanced and informed decision-making process on a public
policy issue; or
(f) there
is a valid reason for not dealing with the subject-matter of the disclosure
or the investigation.
|
24. (1) Le
commissaire peut refuser de donner suite à une divulgation ou de commencer
une enquête ou de la poursuivre, s’il estime, selon le cas :
[…]
e) que les faits
visés par la divulgation ou l’enquête résultent de la mise en application d’un
processus décisionnel équilibré et informé;
f) que cela est
opportun pour tout autre motif justifié.
|
VII. Standard
of review
[19]
According to the Federal Court in Detorakis v Canada
(Attorney General), 2010 FC 39, at paragraph 29 [Detorakis],
the standard of reasonableness should apply to a decision of the Office of the
PSIC not to pursue an investigation under paragraph 24(1)(a) of the
Act.
[20]
Questions
of procedural fairness and of natural justice are to be dealt with on a
standard of correctness, as the respondent reminds us, relying on the Supreme
Court of Canada’s decision in Canada (Citizenship and Immigration) v Khosa,
2009 SCC 12, [2009] 1 S.C.R. 339, at paragraph 43.
VIII. Analysis
[21]
The
disclosure regime is for anyone who has information that a public servant may
have committed a wrongdoing within the meaning of section 8 of the Act. Sections 12
and 13 of the Act allow public servants to disclose to the Commissioner any
information that the public servant believes could show that a wrongdoing within
the meaning of section 8 of the Act has been committed.
[22]
The
Commissioner may refuse to deal with a disclosure or to start an investigation
if he finds that there are insufficient grounds for further action
(paragraph 22(b)). If he is satisfied that there is enough
evidence, he may nonetheless refuse to proceed under paragraphs 24(1)(d)
and (e) if he is of the opinion that the subject-matter of the
disclosure relates to a matter that results from a balanced and informed
decision-making process on a public policy issue or there is a valid reason for
not dealing with the subject-matter of the disclosure.
[23]
If an applicant alleges having being the victim of a
reprisal as a result of the applicant’s disclosure, the Commissioner may also
refuse to deal with a complaint for the reasons set out in
subsection 19.3(1), which includes grounds related to the jurisdiction of
the Office of the PSIC and if he or she is of the opinion that the complaint
was not made in good faith. The discretion provided under subsection 24(1)
is of very broad scope: see Detorakis, above, at paragraph 106(i):
i. The discretionary power under section 24(1) is
extremely wide. Its apparent objective is to allow the PSIC to decide whether
it is in the public interest to investigate a complaint or to determine, on the
basis of the information provided by a complainant, whether the matter could be
better dealt with under another Act. The PSIC’s office must be taken to have
some expertise in this matter.
[24]
However, I share the opinion of Justice Mactavish in El-Helou
v Canada (Courts Administration Service), 2012 FC 1111 [El-Helou],
that given the similarities between the complaint mechanisms established under
the PSDPA and the Canadian Human Rights Act, RSC 1985, c H-6 [the CHRA],
the body of jurisprudence that has been developed in the human rights context
is very useful for determining the scope of the PSDPA.
[25]
I
would therefore like to refer to Canada Post Corporation v Canadian Human
Rights Commission, 1997 CanLII 16378 (FC), in which Justice Rothstein
discusses, at paragraph 3, why the Commissioner should refrain from
refusing to deal with a complaint at the earliest stages except in the most
plain and obvious cases:
[3] A decision by the
Commission under section 41 is normally made at an early stage before any
investigation is carried out. Because a decision not to deal with the complaint
will summarily end a matter before the complaint is investigated, the
Commission should only decide not to deal with a complaint at this stage in plain
and obvious cases. The timely processing of complaints also supports such an
approach. A lengthy analysis of a complaint at this stage is, at least to some
extent, duplicative of the investigation yet to be carried out. A time
consuming analysis will, where the Commission decides to deal with the
complaint, delay the processing of the complaint. If it is not plain and
obvious to the Commission that the complaint falls under one of the grounds for
not dealing with it under section 41, the Commission should, with dispatch,
proceed to deal with it.
[26]
Regarding
procedural fairness, I refer to the principles set out in Detorakis,
above, at paragraph 106, for when the Commissioner decides not to continue
to the investigation stage:
106 . . .
a. Section 22(d) of the PSDP Act imposes a
general obligation to ensure procedural fairness but the Act does not elaborate
upon what may be required in any specific instance. In the present case we are
dealing with someone who indicated that he wanted to submit a complaint under
section 13 of the Act.
b. The Applicant was made fully aware prior to
making his submissions on April 16, 2008 that subsection 24(1)(a) was a
threshold issue and that the PSIC might not proceed to investigate the
complaint because of subsection 24(1)(a).
c. There is nothing to suggest, when he made his
submissions on April 16, 2008, that the Applicant expected, or might reasonably
expect, before a decision was made on the threshold issue of 24(1)(a),
that he would have an opportunity to submit further arguments or evidence or
that the analyst would have further discussions with him on that issue.
d. The PSDP Act does not require that someone
making a disclosure under section 13 has a right to be heard or a right to make
further submissions after the complaint has been made. And, on the facts of the
present case, no further information was required for the PSIC to make a
decision under subsection 24(1)(a).
e. As Justice L’Heureux-Dubé made clear in Baker,
“the duty of fairness is flexible and variable, and depends on an appreciation
of the context of the particular statute and the rights affected … .”
. . .
k. The PSIC is fixed with a specific duty under
section 22(b) of the PSDP Act to review disclosures in order to
determine “whether there are sufficient grounds for further action.” Hence, the
PSIC was obliged in this case to consider and address the threshold issue that
arose under subsection 24(1)(a). The choice of procedure adapted was to
provide the Applicant with an account of how complaints are made, to
specifically identify the subsection 24(1)(a) issue that he faced, and
then to permit him to make written submissions.
l. As I have already indicated, nothing occurred
in this case to raise the Applicant’s legitimate expectations above the general
scheme of the Act or the information and advice that was provided to him by Mr.
Calvert in the phone call of April 16, 2008 on the basis of which the Applicant
made his submissions.
Procedural
fairness
[27]
The
applicant alleges that the Deputy Commissioner of the Office of the PSIC
breached procedural fairness in the following manner:
•
He
did not give the applicant an opportunity to comment on the findings regarding
the admissibility of his disclosure before confirming the decision not to carry
out an investigation.
•
He
did not personally review all of the relevant facts submitted by the applicant
in support of his disclosure before confirming the decision not to investigate,
and he lacked the necessary knowledge for working in French.
•
His
decision was inadequate in light of all the facts submitted by the applicant in
support of his disclosure.
•
In
his decision, he failed to consider the entire factual framework submitted by
the applicant in support of his disclosure.
[28]
The applicant supports his arguments on
procedural fairness mainly by relying on El-Helou, above. First, he
submits that the parties to a complaint made under the Act must be informed of
the substance of the evidence on which the decision to reject the complaint
will be based and be given the opportunity to react to this evidence and to
make any relevant submissions regarding it. However, in El-Helou,
above, the Commissioner decided to proceed to the investigation stage, during
which an investigator sought information from people other than the applicant. In the matter at bar, only
Mr. Agnaou provided the Commissioner with information to support his
allegations with which he was fully familiar.
[29]
Second, the applicant submits that, in El-Helou,
above, at paragraph 79, the Court found that an error had been made by “breach[ing]
. . . the explicit representation made by the investigator that Mr.
El-Helou would be afforded an opportunity to comment on the investigator’s
findings prior to a decision being made by the Interim Commissioner in relation
to his complaint”.
The Court had seen this as a breach of a legitimate expectation, which
includes, according to the Court, “procedures which an administrative authority
has voluntarily undertaken to follow. However,
for a legitimate expectation to be created, the undertaking has to be “clear,
unambiguous and unqualified”: See D.J.M. Brown and J.M. Evans, Judicial
Review of Administrative Action in Canada, loose-leaf (Toronto: Canvasback
Publishing, 2011), at p. 7:1710.”. In the present case, no promise was
made. On the contrary, the applicant had been warned that he would not be given
an opportunity to comment on the decision. In any event, the Deputy
Commissioner offered him the opportunity to provide additional comments after
being informed of the decision.
[30]
In the matter at bar, it is my opinion that the
principles described in Detorakis, above, should apply in order to
dispose of the issues. Consequently, the Office of the PSIC was not obliged to
allow the applicant to reply, and even if it had been, the Deputy Commissioner
sent the applicant a letter on September 13, 2012, seven days after the
initial decision, inviting him to submit any additional, new information that
might have an impact on the analysis that had been performed.
[31]
Moreover, the applicant’s affidavit reveals that
he was informed of the stages in reviewing the admissibility of his disclosure
throughout the process.
The applicant notes in his affidavit that after he received the Deputy
Commissioner’s decision, he wrote to the Executive Director of the Office of
the PSIC to find out what procedure to follow afterwards in order to file submissions
on the errors identified in the Deputy Commissioner’s decision. As mentioned
above, the Deputy Commissioner replied by inviting him to provide additional
information.
[32]
This demonstrates that the applicant was
sufficiently involved in the handling of his file, especially as the duty of
procedural fairness is minimal in disclosure cases at the admissibility review
stage.
[33]
Regarding the criticism raised against the Deputy
Commissioner, I am satisfied that he followed the usual procedure, which
involves a multi-disciplinary approach and various levels of review of the case
by a Legal Services analyst and himself.
Reasonableness
of the decision
[34]
In Detorakis, above, the Court recognized that the
scope of the discretionary power conferred on the Commissioner under
subsection 24(1) of the Act is extremely wide and requires a high degree
of deference.
However, the Commissioner should only find a complaint inadmissible if the case
is plain and obvious.
[35]
In the matter at bar, what the applicant’s memorandum of fact
and law clearly reveals is an honest difference of opinion between an employee
and his supervisor, which the applicant admitted. Several meetings took place
between the applicant and his supervisors regarding the file in question, and
the applicant had many opportunities to express his opinion. Ultimately, his
superiors, who have more experience in criminal prosecutions, and who had also
received input from the applicant’s colleagues, decided not to prosecute: this
was the result of a balanced, informed decision-making process. This type of
decision falls directly within the expertise and authority of these people.
[36]
The applicant alleges [translation]
“gross misconduct” on the part of his superiors, but even if I accept this
gross misconduct as being true, the fact remains that this type of decision
falls strictly within the very broad and flexible discretion of prosecutors and
that the procedure followed was balanced and informed. Moreover, this broad
discretion was exercised over an equally broad issue. As Justice Binnie noted
in R v Regan, [2002] 1 S.C.R. 297, at paragraph 168, “the exercise of
prosecutorial discretion is, within broad limits, effectively non-reviewable by
the courts”.
[37]
The fact that one of the applicant’s superiors,
an expert in the field in question, did not agree with the applicant on the
file in question does not mean that a wrongdoing was committed. It is entirely
normal for there to be disagreements between counsel, such as the applicant and
his superiors, but this does not mean that a wrongdoing was committed or that
the Office of the PSIC is obliged to investigate the disclosure.
[38]
The applicant also claims that there is an error in the
reasons of the Deputy Commissioner’s decision that reveals a misunderstanding
of the scope of his allegations, in that he never alleged that a wrongdoing
within the meaning of paragraph 8(a) had been committed. In the
documentation submitted by the applicant in support of his disclosure, he
checked the box corresponding to a disclosure made under paragraph 8(c)
of the Act, and not paragraph 8(a). However, he explicitly alleged
that the wrongdoings committed by his superiors included violations of the ITA,
which is an enactment of Parliament. The Office of the PSIC therefore concluded
that he wished to allege that this paragraph had been breached, even though he
did not check the correct box. This is entirely reasonable.
[39]
It is clear, ultimately, that the applicant’s disclosure is
the result of a difference in opinion between him and his superiors and not of the
commission of a wrongdoing. The Commissioner, by refusing to investigate,
respected the duties of procedural fairness and made an entirely reasonable
decision in light of the law, the facts and the evidence on the record.
[40]
The
application for judicial review is therefore dismissed.
JUDGMENT
THIS COURT’S JUDGMENT is that the
application is dismissed.
“Peter Annis”
Certified true
translation
Johanna Kratz,
Translator
Email this Content