Date: 20050131
Docket: T-762-04
Citation: 2005 FC 148
Ottawa, Ontario, January 31, 2005
Present: The Honourable Mr. Justice Lemieux
BETWEEN:
MAJOR KEYVAN NOURHAGHIGHI
Applicant
- and -
THE CANADIAN SECURITY INTELLIGENCE REVIEW COMMITTEE,
T.R.W. FARR, MARIAN McGRATH; THE CANADIAN SECURITY INTELLIGENCE
SERVICE, WARD ELCOCK. R. MARCOUX, MARY MARDALLIRAN,
RICHARD STEWART, and THE ATTORNEY GENERAL OF CANADA
Respondents
[1] The Attorney General of Canada, on behalf of the Canadian Security Intelligence Committee (the ACommittee@), certain named Committee employees, the Canadian Security Intelligence Service (the AService@) and certain named Service employees moves the Court to strike the applicant=s notice of application and application purported to be filed under section 18(1)(a) and 18.4(2) of the Federal Court Act seeking writs of prohibition and mandamus Ato compel the Committee and the Service to observe the rule of law and to allow the due process of law...@. The applicant filed his application record on July 13, 2004.
[2] The applicant wants the Service to cease and desist its unlawful surveillance of him. He wants the Committee to be required to make an inquiry into the unlawful investigation by two Service employees in connection with his citizenship application.
[3] Those Service employees should also be required to show cause for contempt of Court.
[4] Finally, he asks the Federal Court of Canada to Acease and desist fraud and abuse of process...@.
[5] As Appendix AA@ to these reasons, I attach a summary of the grounds advanced by the applicant in support of the relief he is seeking.
[6] Stripped of its redundancies, the essence of the applicant=s application relates to two decisions.
[7] The first decision was made by the Service following a complaint filed by the applicant in September 2003 against two employees of the Service. The allegation, as noted, was that they conducted an unlawful interview.
[8] The Service responded on October 24, 2003, stating to Mr. Nourhaghighi the interviews were properly conducted under the Canadian Security Intelligence Service Act (ACSIS Act@).
[9] Mr. Nourhaghighi made a further complaint to the Service on November 13, 2003. The Assistant Director of the CSIS Secretariat responded on November 24, 2003, again stating that the Service had investigated his complaint and found it unsubstantiated. The letter advised the applicant section 41.1(1) of the CSIS Act provided for complaints to the Security Intelligence Review Committee.
[10] The second decision complained of was made by the Committee following the applicant=s December 11, 2003, complaint to the Committee pursuant to section 41 of the CSIS Act. As a matter of convenience, I set out the functions of the Review Committee provided for in paragraph 38(c) of the CSIS Act, subsection 41(1) of that Act as well as sections 47 and 48 of that same Act:
| Functions of Review Committee 38. The functions of the Review Committee are . . .
(c) to conduct investigations in relation to (i) complaints made to the Committee under sections 41 and 42,(ii) reports made to the Committee pursuant to section 19 of the Citizenship Act, and (iii) matters referred to the Committee pursuant to section 45 of the Canadian Human Rights Act.
Complaints 41. (1) Any person may make a complaint to the Review Committee with respect to any act or thing done by the Service and the Committee shall, subject to subsection (2), investigate the complaint if (a) the complainant has made a complaint to the Director with respect to that act or thing and the complainant has not received a response within such period of time as the Committee considers reasonable or is dissatisfied with the response given; and (b) the Committee is satisfied that the complaint is not trivial, frivolous, vexatious or made in bad faith.
Notice of intention to investigate 47. Before commencing an investigation of a complaint referred to in paragraph 38(c) other than an investigation under section 41, the Review Committee shall notify the Director and, where applicable, the deputy head concerned of its intention to carry out the investigation and shall inform the Director and the deputy head of the substance of the complaint. 1984, c. 21, s. 47.
48(1) Investigations in private 48. (1) Every investigation of a complaint under this Part by the Review Committee shall be conducted in private. 48(2) Right to make representations (2) In the course of an investigation of a complaint under this Part by the Review Committee, the complainant, deputy head concerned and the Director shall be given an opportunity to make representations to the Review Committee, to present evidence and to be heard personally or by counsel, but no one is entitled as of right to be present during, to have access to or to comment on representations made to the Review Committee by any other person. [my emphasis] |
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Fonctions du comité de surveillance 38. Le comité de surveillance a les fonctions suivantes_: . . . c) faire enquête sur_: (i) les plaintes qu'il reçoit en vertu des articles 41 et 42, (ii) les rapports qui lui sont transmis en vertu de l'article 19 de la Loi sur la citoyenneté, (iii) les affaires qui lui sont transmises en vertu de l'article 45 de la Loi canadienne sur les droits de la personne.
Plaintes 41. (1) Toute personne peut porter plainte contre des activités du Service auprès du comité de surveillance; celui-ci, sous réserve du paragraphe (2), fait enquête à la condition de s'assurer au préalable de ce qui suit_: a) d'une part, la plainte a été présentée au directeur sans que ce dernier ait répondu dans un délai jugé normal par le comité ou ait fourni une réponse qui satisfasse le plaignant; b) d'autre part, la plainte n'est pas frivole, vexatoire, sans objet ou entachée de mauvaise foi.
Avis d'enquête 47. Le comité de surveillance, avant de procéder aux enquêtes visées à l'alinéa 38c), autres que celles faites en vertu de l'article 41, avise le directeur et, s'il y a lieu, l'administrateur général concerné de son intention d'enquêter et leur fait connaître l'objet de la plainte. 1984, ch. 21, art. 47.
48(1) Secret 48. (1) Les enquêtes sur les plaintes présentées en vertu de la présente partie sont tenues en secret. 48(2) Droit de présenter des observations (2) Au cours d'une enquête relative à une plainte présentée en vertu de la présente partie, le plaignant, le directeur et l'administrateur général concerné doivent avoir la possibilité de présenter des observations et des éléments de preuve au comité de surveillance ainsi que d'être entendu en personne ou par l'intermédiaire d'un avocat; toutefois, nul n'a le droit absolu d'être présent lorsqu'une autre personne présente des observations au comité, ni d'en recevoir communication ou de faire des commentaires à leur sujet.
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[11] On January 9, 2004, the Committee advised the applicant it would be conducting a preliminary review; the Committee invited Mr. Nourhaghighi to submit other material to support his allegation.
[12] On March 15, 2004, the Committee wrote to Mr. Nourhaghighi stating his allegations were either not within the Committee=s mandate to investigate or, in some instances, were thoroughly investigated and the Committee came to the conclusion the Service was not involved in the practices which Mr. Nourhaghighi claimed to have been a victim.
[13] Although the Crown=s motion was scheduled for hearing for a total time of less than two (2) hours on a regular motions day, the proceeding before me largely exceeded that time limit. I permitted the parties to complete their submissions in writing.
[14] The Attorney General=s submissions were filed on September 14, 2004; those written representations contained a startling admission, namely that the Committee=s review of Mr. Nourhaghighi=s complaint under subsection 41 of the CSIS Act had been defective because the Committee=s investigation of that complaint was not conducted in compliance with subsection 48(2) of that Act because the applicant had not been provided with an opportunity to be heard personally.
[15] Paragraph 6 of the Attorney General=s written representations reads:
6. In preparing its reply to this argument, which had previously not been raised by Mr. Nourhaghighi despite his extensive written materials, the Security Intelligence Review Committee . . . has determined that its investigation did not fully comply with the requirements of the CSIS Act in that, for example, it did not provide an opportunity to be heard personally to Mr. Nourhaghighi, the deputy head or the Director as required by section 48(2). For this reason, the Crown consents to an order setting aside the Committee=s investigation and returning the complaint for review in accordance with the various provisions of the CSIS Act and the Committee=s Rules of Procedure. [emphasis mine]
[16] Counsel for the Attorney General acknowledges that in the normal course, an order to return a decision to the decision-maker is dispositive of the application for judicial review. He states, however, in this case, Mr. Nourhaghighi=s application seeks a variety of various orders against a variety of respondents and this violates Rule 302 of the Federal Court Rules and requires the Crown to maintain its position on the remainder of the relief claimed against the Service and the individually named respondents, namely, that Mr. Nourhaghighi=s application is bereft of any possibility of success.
[17] Rule 302 provides unless the Court orders otherwise, an application for judicial review shall be limited to a single order in respect of which relief is sought.
[18] I agree with counsel for the Attorney General the applicant=s application for judicial review violated section 302 of the Federal Court Rules because two decisions were attacked and separate relief was sought in respect of these separate decisions.
[19] What complicates matters in this case is the Attorney General has consented to the setting aside of one of the two decisions, namely the one made by the Committee. The Committee will be ordered to investigate the applicant=s complaint the Service acted illegally.
[20] What further complicates matters is the applicant wants two CSIS employees to be cited for contempt.
[21] The applicant=s request for contempt citations does not follow the scheme set out in sections 466 to 472 of the Rules.
[22] Finally, there is the relief claimed against the Federal Court. Reading the applicant=s material, I glean there is no complaint against any Federal Court judge but, rather, Mr. Nourhaghighi complains of actions in the Federal Court Registry in Toronto.
[23] I note, in respect of this matter, there is no decision to which section 18 of the Federal Court Act could relate and essentially the applicant is claiming tortious conduct which must be reviewed by way of an action and not by way of judicial review.
[24] These are all reasons why the balance of the applicant=s application against the Service, against named employees of the Committee and the Service and against certain employees of the Federal Court should be struck. I also note that no relief is claimed against named Committee, Service or Federal Court employees except in respect of two of them in the contempt proceedings request.
[25] More fundamentally, however, a simple reading of the balance of the application demonstrates many allegations are immaterial and redundant to what Mr. Nourhaghighi=s complaint really is C the manner in which the Service conducted the investigation of his citizenship application.
[26] In the circumstances, the appropriate remedy is to allow the judicial review application in respect of the Committee=s decision but to strike the balance of it for the reasons set out above.
O R D E R
For these reasons, this Court orders that:
1. In respect of the relief sought against the Canadian Security Intelligence Review Committee, the Committee=s decision of March 15, 2004, is set aside and the matter is remitted back to the Committee who shall, in accordance with law, investigate the applicant=s complaint of December 11, 2003;
2. The balance of the application is struck with the proviso that if the applicant chooses, he shall be at liberty to institute separate and appropriate proceedings seeking appropriate relief in compliance with the Rules;
3. There shall be no order as to costs.
AFrançois Lemieux@
J U D G E
ANNEX AA@
Mr. Nourhaghighi=s application lists several grounds as follows:
(1) He complains the Committee, by decision letter dated March 14, 2004, made an erroneous decision. He then lists several grounds of review found in subsection 18.1(4) of the Federal Court Act Afor which it is justice its decision be quashed, the relives [sic] asked in this application be granted@.
(2) He states the Service, the Government (Transport Canada), the Minister of Citizenship and Immigration, Customs Canada, the Federal Court office in Toronto, the Toronto office of the Department of Justice, the Toronto, Ottawa and Montreal Police, and the RCMP have met, planned and conspired against Athe Applicant=s legal proceedings where serious allegations of the parties= corruptions were pending before all courts, [the Supreme Court of Canada, the Ontario and Quebec Courts and the Federal Court of Canada] commissions [the Canadian, Ontario and Quebec Human Rights Commissions], and boards [the Montreal and Toronto Police Complaints Boards]@. He states A[T]he parties have abused the political poisonous atmosphere against his nationality and religion, and created ample forged transactions and communications, fraudulently indicating that he was involved in serious criminal activities then forwarded into the chamber of judges in all courts, commissions and boards@. He states from 2001 to 2003 all of his files Ain sudden were dismissed by all courts, commissions and boards, mostly on his absentia, and over $250,000.00 damages and costs have been accumulated, outrageously, against the Applicant@.
(3) Since 1995, he states the Federal Court is misleading and obstructing justice Ain the Ontario Courts where the Applicant=s claims pending in which the Government of Ontario is the main defendant for millions dollars corruption in his condominium, insurance, torts and damages@. He adds the Federal Court Acreating forged Orders pursuant to object of a conspiracy, it has covered the crime of the Transport Canada and Custom Canada by disobeying the Richard Order; it did not enforce ... [several orders of judges of this Court] misleading and obstructing its own judges@ stating one of the justices of this Court was mislead by the Toronto manager of the Federal Court. He adds that on December 17, 2001, Athe Federal Court of Appeal, in a clear conspiracy with the Ontario Court of Appeal and the RCMP, has made discontinuance Order in file A-50-01, where on same day the other parties dismissed three files, to obstruct his right of appeal to the Supreme Court of Canada@. He states the applicant filed actions, applications and complaints against judges, managers and clerks; Ahowever, they did worst in such a way that file T-1535-00 and T-768-03 are master evidence having capabilities to prove beyond a reasonable doubt that fraud and conspiracy are the standard of practice, not the rule of law; however, poor citizens do not have any other choose [sic]@.
(4) In another ground, the applicant says he is Aan Iranian-Canadian senior fighter and transport pilot, systematic inspector, standardization, flight and ground safety officer holding Major rank@; he says he is an Aauthor, translator, and Webmaster, has been lawfully admitted to Canada in 1990". He states he discovered ample corruptions [Acorruptions in the Airline Transport Pilot Licence; the Transport Canada involved that caused September 11, 2001 attacks, and may be cause of a similar future attacks. Federal Court of Canada directly responsible for cover-up of the said corruption; re files T-571-95; T-688-95; and T-942-99"]. In that same paragraph, he states the AJustice System fully supported the corruptions and brought countless malicious prosecutions by the Crown, police complainants and agents that have caused fourteen years continuous legal process and trials against him in which by direct orders of judges he was numerously tortured by police and unlawfully arrested and kept in the jail@. He states Ajudges made ample forged orders and transcripts to cover up their own wrongdoings and made malicious fines and costs against him to inhibit his access to the Court@.
(5) Ground (5) states A[T]he cause of action rose when the Court-Toronto, maliciously, asked from the RCMP to arrest and assault the Applicant at the Registry, solely, to disobey ... [a judge=s order] that set a date for show cause order against five lawyers; and it has stolen his citizenship application. The Court forwarded slanderous information against him to the RCMP and asked to be forwarded to the Minister of Citizenship who unlawfully asked from the Service to reject his citizenship application. The Contemnors Mardalliran and Stewart hired by the Service...; without any lawful authority and pursuant to an object of a conspiracy with other parties, abused the public office and authority, conducted unlawful investigation@. He states the AContemnors intent to reject his application in such that the Court loses its authority to hear his appeal against the decision of the Minister of Citizenship and Immigration Canada@. He states A[O]n the same day the Supreme Court of Canada, rejected his application for leave to appeal as the Service was investigating against him. The Toronto and Montreal Police were active in ample malicious actions and harassments to make sure that the Service would reject his application too@.
(6) Ground (6) states the A[T]he Contemnors during three hours and half have tried their best to accuse the Applicant for being the follower of Osam-Ben Laden who is accused of September 11, attacks...@.
(7) Ground (7) states that A[I]n the process of the Applicant=s citizenship, a certified copy of his file forwarded to him indicate the Contemnor Mardalliran have taken over 200 pages copied from his Websites and has disclosed his > Confidential Document= to the Service to the Minister of Citizenship. In other documents the Contemnor Mardalliran, unlawfully made comments related to his health and her report was dishonest and omitted all facts related to the interview and torture by police. In fact she inverted the facts in such that the Applicant told him many facts, which are not true@.
(8) In paragraph (8), the applicant concludes he is entitled to the writs of mandamus and prohibition requiring and compelling the respondent with statutory duty under section 41 of the Canadian Security Intelligence Service Act to Atake Care that the Laws be faithfully executed@ as mandated under the Canadian Human Rights Act, the Canadian Charter of Rights and Freedoms, sections 18(1)(a), 18.4(2) of the Federal Court Act, sections 19, 20 of the Citizenship Act and certain rules of the Federal Court Rules.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-762-04
STYLE OF CAUSE:
MAJOR KEYVAN NOURHAGHIGHI and
THE CANADIAN SECURITY INTELLIGENCE REVIEW COMMITTEE, et al.
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: August 30, 2004
REASONS FOR ORDER : Lemieux J.
DATED: January 31, 2005
APPEARANCES:
Major Keyvan Nourhaghighi FOR PLAINTIFF / APPLICANT
Roger Flaim FOR DEFENDANT/ RESPONDENT
Department of Justice Canada,
Exchange Tower, 130 King St. West
Suite 3400, Box 36
Toronto, Ontario M5X 1K6
SOLICITORS OF RECORD:
Major Keyvan Nourhaghighi FOR PLAINTIFF/APPLICANT
John H. Sims, Q.C. FOR DEFENDANT/ RESPONDENT
Deputy Minister of Justice
and Deputy Attorney General of Canada