Date: 19980723
Docket: T-583-98
BETWEEN:
DOUGLAS ROSS MCLELLAN,
Applicant,
- and -
SOLICITOR GENERAL OF CANADA,
Respondent.
REASONS FOR ORDER
JOHN A. HARGRAVE,
PROTHONOTARY
[1] These reasons arise out of the Respondent's motion to strike out an originating notice of motion seeking an order quashing the decision of the Solicitor General to publish and distribute a Royal Canadian Mounted Police ("RCMP") document, "Summary of Police Information", containing a rather bare entry indicating Mr. McLellan was the subject of an Interpol Notice arising from an unspecified 1995 incident. The Interpol Notice apparently came as a surprise to Mr. McLellan when arrested by American immigration authorities. It hampers his ability to travel for personal or business reasons. Mr. McLellan also seeks an order that the RCMP advise all foreign authorities that the Interpol Notice should be disregarded.
[2] Mr. McLellan's material indicates his only criminal conviction was in 1974, for dangerous driving, for which he was fined $100.00 and prohibited from driving for thirty days. On 1 May 1997 Mr. McLellan received a pardon. His affidavit material indicates he is unaware of any 1995 offence, to which the Interpol Notice might relate. In effect Mr. McLellan wishes to clear himself with the RCMP in order to prevent a repeat of a past awkward experience with the American immigration authorities. The Respondent, as a ground for its motion to strike out, submits that the Solicitor General has made no decision, as such, and thus the court has no jurisdiction.
CONSIDERATION
[3] The proper way to deal with a groundless originating notice of motion is to argue the point at the eventual hearing of the motion: see David Bull Laboratories (Canada) Inc. v. Pharmacia Inc. [1995] 1 F.C. 588 at 596-597 (F.C.A.). However, in the David Bull case, Mr. Justice Strayer went on to point out that this was not to deny any jurisdiction in the court to summarily dismiss a notice of motion "... which is so clearly improper as to be bereft of any possibility of success." (ibid, p. 600) but that "... such cases must be very exceptional ..." (loc. cit.).
[4] I have also kept in mind the principle that serious issues of law should not be determined on a summary motion to strike out a proceeding unless the proceeding is so futile as to warrant such a drastic stroke: Vulcan Equipment Co. Ltd. v. Coats Co. Inc. (1982) 58 C.P.R. (2d) 47 at 48 (F.C.A.), leave to appeal to the Supreme Court of Canada refused (1982) 63 C.P.R. (2d) 261.
[5] Turning now to the merits of the Respondent's motion, the issue which the Respondent raises is whether the Solicitor General of Canada made a reviewable decision within Sections 2 and 18.1 of the Federal Court Act (the "Act").
[6] One must first touch on Section 18 of the Federal Court Act which gives to the trial division the jurisdiction to grant various relief, including injunctive and declaratory relief, through judicial review, under Section 18.1 of the Act. Section 18.1(3) allows the trial division to make various orders against a federal board, commission or other tribunal requiring it to take certain action. The trial division may make such an order in various circumstances, as set out in Section 18.1(4) of the Act. The Applicant alleges, in his originating notice of motion, that the Solicitor General and his delegates, presumably the RCMP, "... failed to observe a principle of natural justice or procedural fairness in making the Decision without providing the Applicant with any notice of or opportunity to respond to the Decision or to oppose it.": this is an allegation clearly based on Section 18.1(4)(b) of the Act. The Applicant goes on to allege that the Solicitor General and his delegates contravened the Applicant's right to leave Canada, guaranteed by Section 6 of the Charter and the Applicant's liberty and security of interest guaranteed by Section 7 of the Charter.
[7] Counsel for the Crown first submits there is an absence of an enabling statute under which the Secretary of State might exercise discretion and make a decision to publish the Interpol Notice and, thus, the Secretary of State does come within the Federal Court Act definition of a federal board, commission or other tribunal. The requirement for Federal enabling legislation is set out in the definition of these entities in Section 2 of the Act. However Section 2 of the Act also refers to the exercise of jurisdiction pursuant to Crown prerogative. In effect this could refer to an order made under residual authority legally left in the hands of the Crown. Arguably what happened in Mr. McLellan's case goes beyond the mere gathering of evidence, or the common law keeping of good order by the police. Surely in publishing the Interpol Notice the RCMP were not on a frolic of their own unsupported by any authority. Certainly the Solicitor General directs the RCMP through the Commissioner of the RCMP: see section 5 of the Royal Canadian Mounted Police Act, R.S.C. 1985, ch. R-10. Even leaving aside that there might well be authority in the legislation setting up the RCMP, a judge, on the hearing of Mr. McLellan's judicial review proceeding, could decide that the power exercised is that derived from the remaining prerogatives of the Crown in right of Canada.
[8] The substance of the Respondent's second argument is that the action of the Solicitor General, through the RCMP, was neither an administrative decision nor an exercise in discretionary power which might be judicially reviewed. The Respondent, by analogy, likens the present assembly of information and the publication of the Interpol Notice material to the report prepared by the military police, which was merely to provide information to senior officers, in Lee v. Cairns et al. (1992) 51 F.T.R. 136 (F.C.T.D.); to the collecting and entry of data into an individual's immigration file in Singh v. Canada (1995) 27 Imm. L.R. 176 (F.C.T.D.); or to the learning of information, by a minister, to be set out in a tax certificate where the minister does not exercise any discretion in determining the evidence and may not alter it, for the filing of such a tax certificate in a court is neither an administrative decision nor the exercise of a discretionary power, but merely the administration of evidence, as in Fee v. Bradshaw [1982] 1 S.C.R. 607. This concept is set out at length in Fee v. Bradshaw at pp. 616 - 619, the Supreme Court concluding that:
| "The filing of a certificate stating the date on which evidence came to the Minister's knowledge does not constitute, either in the fact of filing the certificate or in the statement which it exercises, an administrative decision or the exercise of a discretionary power by the Minister so as to make the definition of the words 'federal board, commission or other tribunal' applicable to him.". |
In effect the filing of a tax certificate is really a procedural matter, the use of a certificate as a mode of proof, instead of requiring a minister to testify in each case in which a tax debt must be proven.
[9] Whether the court may review Mr. McLellan's situation depends upon how one categorizes what occurred. Thus, if what the Minister did, in publishing an Interpol Notice, is merely procedural, there can be no review.
[10] On this line of reasoning there is an interesting passage, referred to by counsel for the Solicitor General, in Singh v. Canada (supra), which has suffered in translation. In Singh Madame Justice Tremblay-Lamer, in dealing with the issue of jurisdiction, notes that the competence of the court, ratione materiae, is dependant upon how one characterizes the given action of an immigration officer, in order to determine if it is a decision within the meaning of Section 18.1 of the Act. In English translation the passage reads as follows:
| "The courts have held that in order to make this determination the decision must in nature and have legal consequences." (p.178). |
The passage, in the original reasons, is as follows:
| "Pour ce fair la jurisprudence a établi que la décision doit avoir un caractère définitif ayant des conséquences juridiques." . |
To me the passage imports that the decision must, inherently, have legal consequences.
[11] In the present instance the publication of the Interpol Notice by the RCMP could be characterized as something beyond the mere collection of information to be entered in a file. It may well be a decision to make a publication. Moreover the decision does have clear legal consequences, as Mr. McLellan found out when arrested by the American immigration authorities during his attempt to holiday in Hawaii. On this interpretation there has not merely been the collecting of information, but there has in fact been a decision with legal consequences.
[12] Counsel for Mr. McLellan submitted that the consequences include a limitation on Mr. McLellan's Charter rights, specifically Section 6 of the Charter, a right to enter, remain in and leave Canada and Section 7, a right not to be deprived of liberty, in the sense of mobility rights recognized not only by contemporary common law1, but also going back at least as far as the Magna Carta2.
[13] Counsel for Mr. McLellan went on to say that the decision to publish the cryptic summary of police information, the Interpol Notice, was without any notice to Mr. McLellan and thus in violation of the principle of fairness. He then referred to the Supreme Court of Canada decisions in Cardinal v. Director of Kent Institution [1985] 2 S.C.R. 643 and Martineau v. Matsqui Institution Disciplinary Board [1980] 1 S.C.R. 602, for the proposition that whenever a person's rights, privileges or interests are at stake there is a duty to act in a procedurally fair manner. In effect, where a right has been treated without consideration there ought to be a remedy. The Applicant submits that his remedy is in the Federal Court.
CONCLUSION
[14] The Respondent set forth reasoned arguments first to the effect that there is no enabling legislation under which the Solicitor General might make a decision and second that there is no decision which the Federal Court may review. But there are also arguments that there is enabling legislation or a Crown prerogative upon which to base a decision and that there was in fact a decision made which, perhaps improperly, curtailed the Applicant's basic rights. Rationalizing these positions is not straightforward, but rather a complex legal issue, which could well go either way, depending upon how a judge characterized what took place. Such serious issues of law ought not to be dealt with, on a motion to strike out a proceeding such as the present, for it is not a completely futile claim.
[15] This is not to say that the Applicant might well succeed. Rather, the Respondent has not met the high onus necessary to strike out an originating notice of motion: the Respondent has not shown this is an exceptional case, one bereft of any possibility of success, in which the court ought to do other than to hear the matter as a judicial review proceeding. Thus the Respondent's motion is dismissed.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
23 July 1998
FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
HEARING DATED: April 27, 1998
COURT NO.: T-583-98
STYLE OF CAUSE: DOUGLAS ROSS MCLELLAN
v.
SOLICITOR GENERAL OF CANADA
PLACE OF HEARING: Vancouver, BC
REASONS FOR ORDER OF MR. JOHN A. HARGRAVE, PROTHONOTARY
dated July 23, 1998
APPEARANCES:
Mr. Daniel Kiselbach for Applicant
Mr. Paul Partridge for Respondent
SOLICITORS OF RECORD:
Swinton & Company
Vancouver, BC for Applicant
Morris Rosenberg for Respondent
Deputy Attorney General
of Canada
__________________
1 R. v. Secretary of State for Home Department ex parte McQuillan [1995] 4 All E.R. 400 at 421 (Q.B.)
2 Kent v. Dulles [1958] 2 L. ed. 1204 at 1210 (U.S.S.C.)., a decision of Mr. Justice William O. Douglas