Date: 19981110
Docket: T-253-98
BETWEEN:
EMILE MARGUERITA MARCUS MENNES,
Applicant,
- and -
THE ATTORNEY GENERAL OF CANADA
representing Her Majesty's Governor in Council
under Section 749(2) of the Criminal Code and
Section 53 of the Supreme Court Act,
Respondent.
REASONS FOR ORDER
JOHN A. HARGRAVE,
PROTHONOTARY
[1] These reasons arise out of two motions. The first, the Applicant's motion, is for reconsideration of my Reasons and Order of 21 July 1998, requiring that various portions of the Applicant's Motion Record be removed, pursuant to the 7 May 1997 Direction of the Chief Justice. The second motion, that of the Respondent, seeks to have the Originating Notice of Motion, now referred to in the 1998 Federal Court Rules as an application (the "Application"), set aside or struck out, without leave to amend. I have granted the Respondent's motion and thus do not have to deal with the Applicant's motion.
THE APPLICATION
[2] The Application is characterized by Mr. Mennes as one to set aside the refusal of the Crown to provide a pardon and to require that the issue of a pardon be referred to the Supreme Court of Canada. Here Mr. Mennes would seem to be relying on what is now Section 748 of the Criminal Code and upon Section 53 of the Supreme Court Act of which the Governor in Council may refer important questions to the Supreme Court of Canada. Perhaps Mr. Mennes has in mind the Reference re Milgaard, reported (1992), 90 D.L.R. (4th) 1, in which the Supreme Court considered whether the conviction of Mr. Milgaard constituted a miscarriage of justice and made a recommendation as to a pardon. Mr. Mennes alleges that there has been a continuing refusal on the part of the Governor in Council, "... since at least the 9th day of September, A.D. 1997, ...". Mr. Mennes does not set out any clear date for this refusal, as was required by Rule 1602(2)(f) of the former Federal Court Rules, which were in force when this proceeding was commenced (Rule 301(c)(ii) is the current equivalent Rule).
THE CROWN'S MOTION
[3] The Crown's motion is for an order setting aside the whole of the Application Mr. Mennes has brought either by reason of a failure to file and serve his originating document, or for want of a reasonable cause of action, or because the material does not disclose the details or date of any decision, order or other matter in respect of which this judicial review is sought.
[4] To decide this motion on a possible failure of service by Mr. Mennes of the Application would not permanently resolve this Application in that Mr. Mennes might well bring it again, for he wishes review of what he believes to be a continuing or ongoing process, a continuing denial of a pardon. Thus I will deal mainly with the failure of Mr. Mennes to provide a specific date of the decision or order that he wishes to challenge. But I also note that the whole proceeding is an abuse of process and, on that basis, should also be struck out. The proceeding may also lack a reasonable cause of action, but I have not explored that aspect.
CONSIDERATION
[5] While pleadings in an action are not infrequently struck out, in whole or in part, pursuant to what is now Rule 221, the Federal Court Rules do not specifically extend to striking out an application. However the Court does strike out applications from time to time where, in the words of Mr. Justice of Appeal Strayer, the proceeding is "so clearly improper as to be bereft of any possibility of success: David Bull Laboratories (Canada) Inc. v. Pharmacia Inc. (1995), 1 F.C. 588 at 600 (F.C.A.).
[6] A proceeding may be struck out for various reasons. Pertinent in the present instance is the absence of any decision, as such, which would make review under Section 18.1 of the Federal Court Act possible.
[7] There is also the issue of abuse of process. As I will note later much of the Application itself is confusing, immaterial or concerned with unrelated events. The supporting affidavits, rather than clarifying the Application, are at least largely irrelevant, sometimes scurrilous, and add to the confusion. It would be a very difficult proceeding to know how to answer. The effect of so improperly setting out the basis for a proceeding was noted by the English Court of Appeal in Davy v. Garrett, [1877] 7 Ch.D. 473:
| ... if the Defendant is embarrassed by the Plaintiff's mode of stating his case he is entitled to be relieved from his difficulty. Now nothing is more embarrassing to a defendant than a number of statements which may be irrelevant, and with which he therefore does not know what to do. Almost every statement in this claim appears calculated to embarrass the Defendant in ascertaining what is the case which he has to meet. |
That is certainly an apt description of Mr. Mennes' Application and supporting material.
[8] In the present instance the Respondent, the Attorney General of Canada, does not set out that the Application is an abuse. However, the Court may control its own process. To allow this Application to proceed, with its disjointed application and with its irrelevant, speculative and clearly abusive supporting material, would be not only an abuse of the procedure of the Court, but also an abuse of the taxpayers who contribute to the support of the judicial system.
[9] As I say, the Respondent does not refer to this judicial review as being abusive, but rather takes the approaches that it either lacks a reasonable cause of action, an approach which I have not analyzed, or that the Application failed to disclose the details and date of the decision which is to be reviewed. I now turn to this latter concept.
[10] Counsel for the Respondent refers to Kruse v. The Queen, an unreported 25 February 1998 decision of Madame Justice Tremblay-Lamer in action T-2446-97, in which the originating notice of motion was struck out by reason of failure to specify the date of the decision or order that the applicants wished to challenge. From this failure to specify a date it followed that it was impossible to know whether the application had been commenced in a timely manner.
[11] In Kruse the applicants wished to challenge an ongoing process. As a result, their originating notice of motion did not set out a date of the decision or order they wished to challenge, a requirement under what was then Rule 1602(2)(f) and which is now Rule 301(c)(ii). From this it followed that it was impossible to determine whether the proceeding had been brought within the thirty days allowed under Section 18.1(2). The fact pattern in Kruse is relevant in the present instance in that Mr. Mennes, in his Application, characterizes the decision he wishes to have reviewed as an ongoing refusal to exercise jurisdiction, a refusal said to be ongoing since at least 9 September 1997.
[12] Section 18.1(2) contemplates the review of a specific decision, with the date of the decision being set out in the Application as is provided for in the Rules. However where there is an ongoing process the Court has on occasion allowed judicial review to go forward, outside of the time limit, if it is difficult to pinpoint a specific date or a specific decision: see for example Puccini v. Canada, [1993] 3 F.C. 557 at 567-568. In Independent Contractors and Business Associations v. Canada (1998), 225 N.R. 19, the Federal Court of Appeal dealt with an ongoing decision, but did not accept that there was an open time frame for seeking judicial review:
| Although the decision is clearly intended to have an on-going effect, that by itself is not in my view a basis for concluding that the thirty day time limit imposed by s. 18.1(2) of the Federal Court Act has not expired (p. 23). |
Mr. Justice of Appeal Stone, in the Independent Contractors case, referred to Drolet v. Surintendant des Faillites (1997), 118 F.T.R. 147, again an instance in which an application had been made on the basis of an ongoing decision. More particularly Mr. Drolet had made a series of filings naming himself as trustee in bankruptcy, each being refused. He submitted that the most recent refusal gave new and timely grounds to apply for judicial review. Mr. Justice Teitelbaum looked only to the initial decision, a refusal to accept a bankruptcy petition in which Mr. Drolet was named as trustee and found the judicial review application to be invalid, for there was not there an ongoing or fluid decision over time, but only an initial decision. In that instance, notwithstanding that the Rules did not specifically provide for striking out an originating notice of motion, Mr. Justice Teitelbaum felt that the proceeding was clearly doomed to failure and no request being made for a time extension, he dismissed Mr. Drolet's application for judicial review.
[13] The Court recently reviewed an amended or ongoing decision in Hunter v. Commissioner of Corrections (1998) 134 F.T.R. 81. There the Commissioner of Corrections had made a decision to install a new monitored telephone system in federal penitentiaries. In Hunter the Court dealt with both a decision made before the judicial review proceeding was commenced and with an ongoing or amended decision made after the proceeding had been commenced, perhaps on the basis that the challenge ought to be made on the basis of a current and relevant version of the decision.
[14] As I have already noted this "ongoing decision" argument was not successful in the Kruse (supra), for Madame Justice Tremblay-Lamer felt that Mr. Kruse's application was not the exceptional case, as in Puccini (supra), where at issue was an ongoing practice. Rather, in the case of Mr. Kruse, there was an initial decision from which subsequent yearly events flowed. There was not a new decision each year which would give rise to a fresh decision to have reviewed. Thus the Kruse proceeding was struck out. Now I am aware that the Kruse decision is under appeal, however the underlying principles are sound.
[15] In the present instance the Motion Record material of the Crown is sparse. Mr. Mennes, although served with the Respondent's material seeking the order striking out the Application, without leave to amend, has filed no material in response. Of course that does not mean that the Respondent's Motion to strike out Mr. Mennes' Application should automatically succeed, for it is only where an application is so clearly improper as to be bereft of any chance of success that it ought to be struck out: see for example David Bull Laboratories (Canada) Inc. v. Pharmacia Inc. (supra) and Vancouver Island Peace Society v. Canada (1994) 1 F.C. 102 at 121.
[16] In the present instance, in an effort to understand the nature of Mr. Mennes' Application and to determine whether there might be either a firm decision date or an ongoing decision justifying this judicial review proceeding, I have reviewed the Application and the four affidavits in support. I have taken into account that Mr. Mennes is a lay litigant acting for himself and while that does not excuse breaches of the Rules of the Court, it does mandate a generous reading.
[17] The Application of 13 February 1998 is to quash or set aside the Crown's refusal to consider Mr. Mennes' request for a free pardon under what is now Section 748(2) of the Criminal Code. Nowhere in the material does there appear to be any decision to that effect, although the Application sets out:
| "That, continuing to the present time since at least the 9th day of September, A.D. 1997, the Respondent in your Applicant's case has refused to exercise his jurisdiction under Section 749(2) of Her Majesty's Criminal Code, Section 53 of Her Majesty's Supreme Court Act and Section 12 of Letter Patent Constituted in the Office of the Governor General of Canada, now set out in these proceedings, for a free pardon to Her Majesty's Supreme Court of Canada for its determination forthwith; ...". |
The Application goes on to touch upon legislation as early as 1688, various versions of the Bible and includes references to a number of proceedings in criminal courts, to transcripts and to exhibits in various court proceedings, during at least the years 1981 through 1995.
[18] The affidavits in support of the Application are numbered one through four. Affidavit number one of Mr. Mennes does refer to a 4 September 1997 response, to two letters from Mr. Mennes, as to the form and procedure for petitioning the Governor in Council. That letter, from the Privy Council Office, is not a refusal to consider a petition for pardon, but rather is a direction on how to approach the problem. The balance of the affidavit is argumentative and contains a mishmash of references to case law, to statute law and to the Bible.
[19] Affidavit number two deals with a lengthy indictment of 9 February 1991 cataloguing many instances of indecent assault and the perceived injustice of those proceedings which were in Calgary, Alberta. The affidavit considers the illegality of a 20 February 1985 indictment, for sexual assaults, in the County Court at Victoria, British Columbia, and a warrant of commitment, said to be fraudulently obtained, in connection with that indictment.
[20] The third affidavit in support of this judicial review alleges bias on the part of an Ontario judge who presided over criminal proceedings against Mr. Mennes in January of 1996. The affidavit goes on to make scurrilous and irrelevant accusations. It touches on a 1997 application concluding in the imposition of an indeterminate sentence upon Mr. Mennes as a dangerous offender. Much of this affidavit is a rehashing of past criminal proceedings.
[21] The fourth affidavit is to a great extent an incomprehensible rant. It seems to deal with treatment prescribed for Mr. Mennes. It has no relevance to the present proceeding.
[22] This proceeding is an abuse: it ought, as such, to be struck out. The proceeding is also clearly deficient in that it fails to define either an initial decision to be reviewed or any ongoing, incremental or amended decision which might form a timely base on which to found a judicial review proceeding. The judicial review proceeding is therefore struck out for these two reasons.
[23] I have considered whether it might be possible for Mr. Mennes to amend his Application in order to set out a firm date for the decision which he wishes reviewed. The test for striking out, without leave to amend, is a difficult one to satisfy. In McMillan v. Canada (1996) 108 F.T.R. 32 at 39, Associate Chief Justice Jerome pointed out that "... there must not be a scintilla of a legitimate cause of action for a claim to be struck out without leave to amend.", there referring to Kiely v. Canada (1987) 10 F.T.R. 10. There is nothing in any of the material to indicate any decision was ever made by the Attorney General of Canada, let alone a firm date for such a decision. I am satisfied that the Application commenced by Mr. Mennes contains not a scintilla of any indication of any decision which might be reviewed. Thus this judicial review proceeding is struck out, without leave to amend.
[24] Having reached the conclusion that the proceeding is struck out, I do not have to consider the companion motion, brought by Mr. Mennes, seeking a reconsideration and extension of time for the reconsideration of a 21 July 1998 Order removing passages and material from a Motions Record which Mr. Mennes wished to file.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
10 November 1998
FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: T-253-98
| STYLE OF CAUSE: Emile Marguerita Marcus Mennes |
| v. |
| The Attorney General of Canada |
REASONS FOR ORDER OF:
John A. Hargrave, Prothonotary
dated November 10, 1998
APPEARANCES BY:
| Emile Marguerita Marcus Mennes on his own behalf |
| Campbellford, Ontario |
| Mr. Curtis Workun for the Respondent |
| Department of Justice |
SOLICITORS OF RECORD:
| Emile Marguerita Marcus Mennes on his own behalf |
| Campbellford, Ontario |
| Morris Rosenberg |
| Deputy Attorney General of Canada for the Respondent |