BETWEEN:
and
Heard at Toronto, Ontario, on October 30, 2006.
Judgment delivered from the Bench at Toronto, Ontario, on October 30, 2006.
REASONS FOR JUDGMENT OF THE COURT BY: EVANS J.A.
Docket: A-648-05
Citation: 2006 FCA 356
CORAM: LINDEN J.A.
NADON J.A.
EVANS J.A.
BETWEEN:
ERNST ZUNDEL
Appellant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario, on October 30, 2006)
[1] This is an appeal by Ernst Zündel from a decision of Justice Hughes of the Federal Court, in which he granted a motion by the Crown to dismiss an action for damages brought by Mr Zündel against the Crown. His decision is reported as Zündel v. Canada, 2005 FC 1612.
[2] Mr Zündel’s amended statement of claim alleges that the Crown unlawfully detained Mr Zündel in Canada, and subsequently deported him to Germany, on the ground, among others, that he was a threat to the security of Canada.
[3] Mr Zündel says that the security certificate provisions of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”), under which he was detained and deported, are in breach of section 7 of the Canadian Charter of Rights and Freedoms and therefore cannot justify in law the damage inflicted upon him as a result of his detention and deportation.
[4] Although, the reasonableness of the security certificate was reviewed, and upheld, by Justice Blais, a designated Judge of the Federal Court, Mr Zündel elected not to pursue the constitutional issue in those proceedings. However, prior to Mr Zündel’s removal, the Federal Court of Appeal found in another case that the security certificate provisions of IRPA were valid: Charkaoui (Re), [2005] 2 F.C.R. 299, 2004 FCA 421. This decision was appealed to the Supreme Court of Canada, and was argued in June of this year. A decision from the Supreme Court in this matter is pending.
[5] Justice Hughes struck Mr Zündel’s statement of claim under Rule 221(2) of the Federal Courts Rules as disclosing no reasonable cause of action. He held that the Crown is only liable for acts of its officers pursuant to a law which is subsequently held invalid, if their conduct was “clearly wrong”, “in bad faith” or “an abuse of process”: Mackin v. New Brunswick (Minister of Finance), [2002] 1 S.C.R. 405, 2002 SCC 13 at para. 78.
[6] He concluded that, since Mr Zündel had pleaded none of these types of misconduct, his action for damages was bound to fail, even if the Supreme Court subsequently invalidates the security certificate provisions of IRPA. Justice Hughes held that, absent a remedy in damages, the paragraphs of Mr Zündel’s pleadings asking for a declaration that the IRPA provisions in dispute are invalid are moot. Since the same issues are currently under consideration by the Supreme Court, scarce judicial resources should not be spent on a “redundant challenge in this case” (para. 23).
[7] However, Justice Hughes would have declined to strike on the ground of abuse of process, since the case law permitted Mr Zündel to elect to litigate the constitutional issue in a separate action, rather than in the summary proceeding to review the reasonableness of the security certificate. It would not, he said, undermine the integrity of the adjudicative process to permit Mr Zündel to pursue the litigation strategy open to him, regardless of his motives for so doing.
[8] Before us, counsel for Mr Zündel conceded that the viability of the cause of action depends on the invalidity of the impugned provisions of IRPA. We would observe again that, prior to Mr Zündel’s removal, this Court in Charkaoui (Re) had upheld the validity of the provisions of IRPA in dispute.
[9] Nonetheless, counsel said that the question to be decided now is whether there is a scintilla of a possibility that the Crown could be held liable for the torts of misfeasance in public office or negligence, as a result of Crown counsel’s opposing Mr Zündel’s various attempts to raise the constitutionality of the legislation, with the improper purpose of blocking an adjudication of that issue before he was deported and suffered the damage foreseeably flowing from his deportation.
[10] We are not persuaded that, even on the high standard set out it in Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, for striking pleadings, it can be said that the pleadings in this case disclose a tort.
[11] In our opinion, there was nothing improper in the position taken by the Crown in any of the relevant proceedings. Thus, in the security certificate review proceedings before Justice Blais, it was appropriate for the Crown, on the basis of the jurisprudence as it then was, to take the position that the Judge had no jurisdiction to deal with the constitutional challenge in that proceeding.
[12] However, it was open to Mr Zündel to have raised the issue before Justice Blais and, if the Judge ruled against him on the jurisdictional question, to appeal. Indeed, during this period, it was held that designated Judges have jurisdiction to determine constitutional challenges to the provisions of IRPA under which security certificates are issued: Charkaoui (Re), [2004] 3 F.C.R. 32, 2003 FC 1419, aff’d. [2005] 2 F.C.R. 299, 2004 FCA 421. Instead, Mr Zündel sought to raise the constitutional issue in the Ontario Superior Court by way of a writ of habeas corpus, and withdrew the Notice of Constitutional Question in the Federal Court.
[13] Counsel for the Crown opposed Mr Zündel’s application for habeas corpus. The Ontario Superior Court declined to exercise its jurisdiction in favour of the Federal Court (R. v. Zündel (2003), 127 A.C.W.S. (3d) 115), a decision which was upheld by the Court of Appeal for Ontario (R.v. Zündel (2004), 241 D.L.R. (4th) 362). Again, we see nothing improper in the position taken by Crown counsel in those proceedings.
[14] Finally, counsel for Mr Zündel submits that it was improper for the Crown to move to dismiss his action, having previously taken the position that an action in the Federal Court was the appropriate way to challenge the constitutionality of the legislation.
[15] We do not agree. It was properly open to the Crown to argue that the pleadings disclose no reasonable cause of action because it is plain and obvious that the facts pleaded do not constitute a tort. On this basis, it was again appropriate for the Crown to say that, if it was right on this point, the declaration of invalidity requested by Mr Zündel was moot, since the constitutional issue raised by Mr Zündel is already before the Supreme Court of Canada in Charkaoui (Re).
[16] In the absence of any impropriety in the positions taken by the Crown respecting the raising of the constitutional question at any stage of this litigation, we do not see how the Crown’s conduct could be said to be tortious, either in any individual instance or when taken as a whole. It was open to Mr Zündel to have persisted with his Notice of Constitutional Question before Justice Blais and, if he lost, to appeal.
[17] We do not agree that the Crown has a legal duty giving rise to a claim for damages to co-operate with an individual in the course of litigation by making no objection to the individual’s attempts to raise a constitutional question. We note, too, that Mr Zündel’s pleadings do not impute any improper purpose to the Crown in its conduct of the litigation.
[18] Nor was the Crown under a legal duty to delay Mr Zündel’s deportation until the Supreme Court decided Charkaoui (Re). There is a statutory duty to enforce, as soon as reasonably practicable, removal orders issued against permanent residents: IRPA paragraph 46(1)(c), subsection 48(2) and paragraph 49(1)(a). And, this Court had already upheld the validity of the provisions of IRPA under which the removal order was issued in this case.
[19] In these circumstances, Mr Zündel’s case is no stronger if framed in negligence.
[20] For these reasons, the appeal will be dismissed with costs.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-648-05
STYLE OF CAUSE: ERNST ZUNDEL
Appellant
and
HER MAJESTY THE QUEEN
Respondent
DATE OF HEARING: MONDAY, OCTOBER 30, 2006
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT
OF THE COURT BY: (LINDEN, NADON, EVANS JJ.A.)
DELIVERED FROM THE
APPEARANCES BY:
Mr. Peter Lindsay FOR THE APPELLANT
Ms. Chi-Kun Shi FOR THE APPELLANT
Mr. Donald A. MacIntosh FOR THE RESPONDENT
Mr. Jamie Todd FOR THE RESPONDENT
Mr. Lorne McClenaghan FOR THE RESPONDENT
SOLICITORS OF RECORD:
Peter Lindsay
Barrister
Toronto, Ontario FOR THE APPELLANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT