Zhang v. Canada (Attorney General), (2006) 288 F.T.R. 115 (FC)

• Judge: Tremblay-Lamer, J.
• Court: Federal Court (Canada)
• Case Date: February 14, 2006
• Jurisdiction: Canada (Federal)
• Citations: (2006), 288 F.T.R. 115 (FC);2006 FC 276

Zhang v. Can. (A.G.) (2006), 288 F.T.R. 115 (FC)

MLB headnote and full text

Temp. Cite: [2006] F.T.R. TBEd. MR.019

Kunlun Zhang (applicant) v. Attorney General of Canada (respondent)

(T-769-05; 2006 FC 276; 2006 CF 276)

Indexed As: Zhang v. Canada (Attorney General)

Federal Court

Tremblay-Lamer, J.

March 2, 2006.

Summary:

Zhang applied for the Attorney General of Canada's consent to commence a private prosecution for the offence of torture allegedly committed in China by individuals who were not Canadian citizens, including charges against the former President of China. The Attorney General denied consent. Zhang applied for judicial review.

The Federal Court dismissed the application.

Administrative Law - Topic 224

The hearing and decision - Right to be heard - What constitutes being heard - Zhang applied for the Attorney General of Canada's consent for a private prosecution for the offence of torture allegedly committed in China by individuals who were not Canadian citizens - The Attorney General denied consent by letter from Corbett (Senior General Counsel) - Corbett withdrew the refusal on the basis that the then Attorney General and Minister of Justice (Colter) had recused himself from considering the request - Barry (Senior General Counsel), on behalf of the acting Attorney General (McLellan), sent a further letter denying the request - Zhang sought judicial review, asserting that the duty of fairness required disclosure to him and an opportunity to respond to the objections raised by Corbett before McLellan made her decision - The Federal Court rejected the assertion - Zhang had ample opportunity to make his case and submitted considerable material to the Attorney General in support of the request for consent - The Attorney General did not have a duty to provide a hearing - To accept Zhang’s assertion that he should have been given an opportunity to respond would compromise the independence of the Attorney General in the sphere of prosecutorial discretion - See paragraphs 21 to 24.

Administrative Law - Topic 262

The hearing and decision - Right to a hearing - When right exists - [See Administrative Law - Topic 224 ].

Administrative Law - Topic 2088.1

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Prejudgment of matter - Zhang applied for the Attorney General of Canada's consent for a private prosecution for the offence of torture allegedly committed in China by individuals who were not Canadian citizens - The Attorney General denied consent by letter from Corbett (Senior General Counsel) - Corbett withdrew the refusal on the basis that the then Attorney General and Minister of Justice (Colter) had recused himself from considering the request - Barry (Senior General Counsel), on behalf of the acting Attorney General (McLellan), sent a further letter denying the request - Zhang sought judicial review, asserting that McLellan had not formed an independent opinion, but rather just repeated Corbett’s opinion - The Federal Court rejected the assertion - A more reasonable conclusion was that, after considering the matter independently, McLellan decided to refuse the request and adopted Corbett's reasons as her own - Additionally, one would clearly anticipate the reasoning and conclusion of McLellan's decision to be the same given that it resulted from the application of the same criteria to the same factual situation - The evidence did not support a conclusion that the matter was prejudged so as to give rise to a reasonable apprehension of bias - See paragraphs 19 and 20.

Civil Rights - Topic 1410.5

Security of the person - Law enforcement - Prosecutorial discretion (incl. private prosecutions) - Zhang applied for the Attorney General of Canada's consent for a private prosecution for the offence of torture allegedly committed in China by individuals who were not Canadian citizens - The Attorney General denied consent - Zhang sought judicial review, asserting that his s. 7 Charter right to security of the person was violated - Zhang asserted that the right to security of the person encompassed freedom from torture, no matter where in the world it was inflicted and no matter whether that infliction was by a state or an individual - The Federal Court held that there was not a sufficient causal connection between Zhang’s torture in China and the Attorney General’s refusal to consent to a private prosecution - There was no Canadian government action or participation leading to any potential deprivation of Zhang’s life, liberty or security of the person - Zhang was not being removed from Canada - He was in Canada and, as a Canadian citizen, he was entitled to stay in Canada - See paragraphs 32 to 38.

Civil Rights - Topic 5653.7

Equality and protection of the law - Particular cases - Prosecutorial discretion (incl. private prosecutions) - Zhang applied under s. 7(7) of the Criminal Code for the Attorney General of Canada's consent for a private prosecution for the offence of torture allegedly committed in China by individuals who were not Canadian citizens - The Attorney General denied consent - Zhang sought judicial review, asserting that his s. 15 Charter equality rights were violated - Zhang asserted that he was subjected to discrimination because he was a Canadian citizen with dual nationality - The Federal Court stated that the appropriate comparator group was Canadian citizens, without another nationality, who would like to obtain consent to institute a private prosecution - The Attorney General's prosecutorial discretion was exercised on the basis of "The Decision to Prosecute" policy in all cases, regardless of the victim’s nationality (or multiple nationality) - The policy, neither directly nor in its effect, treated dual nationals differently - Section 7(7) was such that single nationals and dual nationals alike had the opportunity to institute private proceedings if they met the criteria set forth by the Attorney General - The disadvantage encountered by some dual nationals when travelling was not related to the Attorney General's denial of consent - Rather, the claimed disadvantage arose in the country of the dual nationals' other citizenship as a result of the laws of that country, which was not a disadvantage within Canadian society - See paragraphs 39 to 45.

Crown - Topic 614

Attorney General - Private prosecutions - Consent to - [See Administrative Law - Topic 224 , Administrative Law - Topic 2088.1 , Civil Rights - Topic 1410.5 and Civil Rights - Topic 5653.7 ].

Crown - Topic 614

Attorney General - Private prosecutions - Consent to - Zhang applied for the Attorney General of Canada's consent for a private prosecution for the offence of torture allegedly committed in China by individuals who were not Canadian citizens - The Attorney General denied consent - Zhang sought judicial review - The Federal Court stated that while a court had to exercise extreme caution before embarking on any review of prosecutorial discretion, such discretion was not irreproachable - The Supreme Court of Canada, in Krieger v. Law Society of Alberta, accepted that it would be possible to review an exercise of prosecutorial discretion in cases of flagrant impropriety or malicious prosecution - The threshold to demonstrate flagrant impropriety was very high - The evidentiary threshold was the same as in cases involving a judge entering a stay of proceedings for an abuse of process - See paragraphs 8 to 15.

Crown - Topic 614

Attorney General - Private prosecutions - Consent to - Zhang applied for the Attorney General of Canada's consent for a private prosecution for the offence of torture allegedly committed in China by individuals who were not Canadian citizens - The Attorney General denied consent - Zhang sought judicial review - Zhang asserted that prosecutorial discretion should be subjected to a pragmatic and functional analysis and that the standard of review was flagrant impropriety for questions of fact and correctness for questions of law - The Federal Court rejected the assertion - The court could not review the Attorney General's decision unless it amounted to flagrant impropriety - The purpose of the pragmatic and functional approach was to determine the proper level of deference to be shown to a tribunal’s decision, as intended by the legislature - The review of a decision of the Attorney General was not a matter of deference - The Attorney General was accountable only to Parliament and was to exercise his prosecutorial discretion without court interference except in those extremely rare cases of flagrant impropriety - The court's recognition of its limited jurisdiction to intervene was not a result of deference, but rather of the Attorney General's independence in the exercise of his executive authority - See paragraphs 16 and 17.

Crown - Topic 614

Attorney General - Private prosecutions - Consent to - Zhang applied for the Attorney General of Canada's consent for a private prosecution for the offence of torture allegedly committed in China by individuals who were not Canadian citizens - The Attorney General denied consent - Zhang sought judicial review, asserting that the Attorney General inappropriately applied "The Decision to Prosecute" policy, which was relevant to public prosecutions, but inapplicable to deciding whether to consent to a private prosecution - The Federal Court stated that the assertion was misguided - The Attorney General's decision as to whether to bring a prosecution was undeniably an exercise of prosecutorial discretion - Any attempt to distinguish this case because the issue was one of consent to prosecution merely raised a distinction without a difference - See paragraphs 25 and 26.

Crown - Topic 614

Attorney General - Private prosecutions - Consent to - Zhang applied for the Attorney General of Canada's consent for a private prosecution for the offence of torture allegedly committed in China by individuals who were not Canadian citizens - The Attorney General denied consent - Zhang sought judicial review, asserting that the Attorney General failed to consider the possibility of the accused's extradition from China and instead had thrown up a general roadblock to consent to private prosecutions where the perpetrators were abroad - The Federal Court rejected the assertion - The reasons provided for the refusal to consent included that the intended accused were not located in Canada nor was there a reasonable prospect that they could be brought to trial in Canada - This supported the conclusion that the Attorney General did indeed consider the likelihood of China cooperating with an extradition request - Even if this factor was not considered, failure to consider any single relevant criterion fell short of meeting the threshold of flagrant impropriety necessary to justify the court's interference - See paragraphs 27 and 28.

Crown - Topic 614

Attorney General - Private prosecutions - Consent to - Zhang applied under s. 7(7) of the Criminal Code for the Attorney General of Canada's consent for a private prosecution for the offence of torture allegedly committed in China by individuals who were not Canadian citizens - The Attorney General denied consent - Zhang sought judicial review, asserting that the Attorney General’s decision amounted to an effective repeal of the law or, minimally, made the law unworkable - The Federal Court rejected the assertion - Unfortunately for those who applied for consent under s. 7(7), the Attorney General's decision to exercise extraterritorial jurisdiction to prosecute an offence committed abroad gave rise to a number of clear obstacles, including the lack of evidence and difficulty in obtaining the cooperation of the State in which the offence was allegedly committed - These were factors which the "Decision to Prosecute" policy took into consideration - Here, the refusal was based on such factors - The refusal here did not suggest that the Attorney General would refuse consent in a case where these obstacles could be overcome - See paragraphs 29 and 30.

Cases Noticed:

R. v. Power (E.), [1994] 1 S.C.R. 601; 165 N.R. 241; 117 Nfld. & P.E.I.R. 269; 365 A.P.R. 269, refd to. [para. 8].

Nelles v. Ontario et al., [1989] 2 S.C.R. 170; 98 N.R. 321; 35 O.A.C. 161, refd to. [para. 10].

Wayte v. United States (1985), 470 U.S. 598, refd to. [para. 12].

Krieger et al. v. Law Society of Alberta, [2002] 3 S.C.R. 372; 293 N.R. 201; 312 A.R. 275; 281 W.A.C. 275; 2002 SCC 65, refd to. [para. 13].

Kostuch v. Alberta (Attorney General) (1995), 174 A.R. 109; 102 W.A.C. 109 (C.A.), refd to. [para. 15].

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201, refd to. [para. 16].

Saikaly v. R. (1979), 48 C.C.C.(2d) 192 (Ont. C.A.), refd to. [para. 23].

Winn v. Canada (Attorney General) et al. (1994), 84 F.T.R. 115 (T.D.), refd to. [para. 26].

Blencoe v. Human Rights Commission (B.C.) et al., [2000] 2 S.C.R. 307; 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161; 2000 SCC 44, refd to. [para. 33].

United States of America v. Burns and Rafay, [2001] 1 S.C.R. 283; 265 N.R. 212; 148 B.C.A.C. 1; 243 W.A.C. 1; 2001 SCC 7, dist. [para. 34].

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R. 1; 2002 SCC 1, dist. [para. 34].

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1, refd to. [para. 40].

Auton et al. v. British Columbia (Minister of Health) et al., [2004] 3 S.C.R. 657; 327 N.R. 1; 206 B.C.A.C. 1; 338 W.A.C. 1; 2004 SCC 78, refd to. [para. 41].

Hodge v. Canada (Minister of Human Resources Development), [2004] 3 S.C.R. 357; 326 N.R. 201; 2004 SCC 65, refd to. [para. 41].

Counsel:

David Matas, for the applicant;

Joel Katz, for the respondent.

Solicitors of Record:

David Matas, Winnipeg, Manitoba, for the applicant;

John H. Sims, Q.C., Deputy Attorney General of Canada, Winnipeg, Manitoba, for the respondent.

Tremblay-Lamer, J., of the Federal Court, heard this application at Winnipeg, Manitoba, on February 14, 2006, and delivered the following reasons for judgment on March 2, 2006.