Judgments

[2000] 1 F.C. 427

T-224-97

T-1221-98

Karlheinz Schreiber (Applicant)

v.

The Attorney General of Canada (Respondent)

Indexed as: Schreiber v. Canada (Attorney General) (T.D.)

Trial Division, MacKay J.—Vancouver, April 7, 8 and 9; Ottawa, August 30, 1999.

Administrative law — Judicial review — Declarations — Application for declaration coercive search and seizure of documents in Canada requiring prior judicial authorization by grant of search warrant — Attorney General not disputing legal proposition — No justiciable issue between parties — No legal issue to be resolved by declaration — Not Court’s practice to issue declaration about state of law for use in another forum i.e. Swiss courts.

Administrative law — Judicial review — Mandamus — Application for mandamus ordering withdrawal of letter of request from Minister of Justice to Swiss authorities seeking assistance with RCMP investigation into fraud on government — Application not out of time as proceedings could not be commenced until refusal to withdraw — Mandamus not granted unless public legal duty owed to applicant — Applicant argued Attorney General having duty to withdraw request when facts alleged in request without foundation — Relying on apology for language in request wrongly indicating RCMP concluding criminal activities had occurred — Basis for duty to withdraw request not established — Not acknowledged allegations of fact in letter of request without foundation — Criminal investigation ongoing — To extent duty on respondent arising by implication from Swiss law, duty owed to Swiss authorities, not to applicant — Court not convinced, absent evidence of abuse by Attorney General, duty to applicant outweighed duty to public re: administration of justice.

Crown — Prerogatives — Application for mandamus ordering withdrawal of letter of request from Minister of Justice to Swiss authorities seeking assistance with RCMP investigation into fraud on government — Statutes, prerogatives sources of authority for Crown — Prerogative residue of powers inherent in Crown, recognized as essential even in absence of statutory provision enacted by Parliament — Issuance of request for assistance to foreign state for assistance lawful by virtue of prerogative in respect of administration of justice, including investigation of alleged criminal activities, initiation of means of fostering international co-operation for this purpose — In issuing request, Attorney General not acting simply as any other person, but as chief law officer, adviser of Crown federal.

Federal Court jurisdiction — Trial Division — Whether refusal to withdraw letter of request from Minister of Justice to Swiss authorities seeking assistance with RCMP investigation into fraud on government decision of federal board, commission or other tribunal — Decision made pursuant to Crown prerogative within respondent’s authority as chief law officer of Crown federal — Subject to judicial review.

Practice — Res judicata — Prior to within applications for mandamus, declaration, earlier F.C.T.D. proceeding (subsequently reversed by S.C.C.) determining letter of request from Minister of Justice to Swiss authorities seeking assistance with RCMP investigation into fraud on government constituted breach of Charter, s. 8 right to protection against unlawful search and seizure — Attorney General submitting applicant precluded by application of res judicata from now questioning authority to issue request — Res judicata not applicable as earlier proceeding based on agreed facts to determine agreed question of law — Scope thereof not providing for argument about basis of authority to issue request.

These were applications for mandamus ordering withdrawal of the letter of request and for a declaration concerning Canadian law, said to be for guidance of Swiss courts. In an earlier challenge to the request, the Federal Court Trial Division held that without prior judicial approval, the request constituted infringement of the applicant’s Charter, section 8 right to protection against unlawful search and seizure. That decision was upheld by the Federal Court of Appeal, but reversed by the Supreme Court of Canada. In 1995 a letter of request had been sent to Swiss authorities on behalf of the Minister of Justice seeking their assistance in connection with an RCMP investigation into allegations of offences under Criminal Code, section 121 (fraud on the government). It included a request that Swiss authorities obtain and provide records and documents relating to the accounts, or safety deposit boxes, at a named bank in Zurich, held in the names of certain persons or corporations, including the applicant. It also included an assurance that Canada would extend to Switzerland reciprocal co-operation. None of the records and documents concerning the applicant’s bank accounts or safety deposit boxes that may have been obtained by Swiss authorities have yet been delivered to Canadian officials. After receipt of a letter of apology for language contained in the request for assistance which wrongly indicated that the RCMP had reached conclusions that the applicant had engaged in criminal activity, the applicant requested the respondent to withdraw the letter of request.

The respondent urged that the decision not to withdraw the request was not subject to judicial review since it was not a decision of a “federal board, commission or tribunal”. It also submitted that some of the applicant’s submissions, in particular those questioning the respondent’s authority to issue the request, were not raised in a timely fashion and should be precluded by application of the principle of res judicata. It was urged that these submissions could have been made in the applicant’s first proceeding, and the Court should not now permit them to be raised. The applicant urged that the request was defective on its face and without further explanation was misleading to Swiss authorities.

The two main issues were whether the applicant had established the requirements for an order of mandamus, and whether the Court should issue the declaratory relief sought. Other preliminary issues were whether a decision not to revoke or withdraw the letter of request is subject to judicial review; whether the application was filed late; whether the doctrine of res judicata precluded the applicant from raising certain arguments concerning the respondent’s authority to issue the request; and whether the request should be revoked because it was misleading.

Held, the applications should be dismissed.

For mandamus to be awarded, the Court must be satisfied that a public legal duty was owed to the applicant, that the respondent refused to fulfil that duty, and in considering all the circumstances, including the lack of any other remedy, on balance an order compelling a public officer to perform the duty is warranted. The applicant had not established that a public legal duty to withdraw the request was owed to him in the circumstances.

The sources of authority of the Crown, i.e. the government, are statutes and the prerogative. The latter is the residue of powers inherent in the Crown, which the courts recognize as essential even in the absence of statutory provision enacted by Parliament. Despite the shared view of counsel, issuance of a letter of request for assistance to a foreign state is lawful by virtue of the prerogative power in respect of the administration of justice, including the investigation of alleged criminal activities, and the initiation of means of fostering international co-operation for this purpose. In issuing the request the Attorney General does not act simply as any other person, but as the chief law officer and legal adviser of the federal Crown.

The applicant argued that the respondent has a duty, arising from her official, professional and ethical responsibilities, to withdraw the request when the facts alleged in the request are without foundation. The acknowledgement that some language in the request wrongly indicated that the RCMP had concluded that criminal activities occurred, which the apology to the applicant referred to, was not an acknowledgement that the facts alleged in the request were without foundation. The apology expressly noted that the RCMP investigation into the matter was ongoing.

The applicant submitted that a duty on the respondent to withdraw the request was implied as a result of obligations said to arise under requirements of Swiss law concerning the granting of any request. Whether the applicant was entitled to the relief sought was entirely dependent on Canadian, not Swiss, law. The determination of the application of Swiss law in the circumstances of this case should be left to the Swiss Court. Moreover, to the extent that there may be said to be any duty upon the respondent arising under or by implication from Swiss law, that duty would be one owed to Swiss authorities, not to the applicant.

Two other considerations militated against issuing an order to withdraw the request. The first was that the respondent also had a responsibility in relation to the administration of justice to facilitate arrangements for the investigation by police authorities of allegations of criminal activity. That responsibility gave rise to a public duty owed to the public at large. Weighed in the balance with the duty claimed to be owed to the applicant, the Court was not persuaded that without more, i.e. some evidence of clear abuse by the respondent, the balance would favour the granting of an order of mandamus. The second consideration was that the decision to issue or withdraw the request was within the accusatorial and investigatory functions of the law officers of the Crown in the administration of justice. In such matters the Court should accord very considerable deference to the decision of the Attorney General. By long-standing practice courts do not interfere in such matters, barring some flagrant impropriety on the respondent’s part. The decision to refuse to withdraw the request must be patently unreasonable. That was not the case here.

This was not a case for the awarding of declaratory relief as claimed by the applicant. The respondent did not dispute the basic legal proposition sought to be declared. Indeed, the Attorney General agreed with it. Thus there was no justiciable issue between the parties, no legal issue for the Court to resolve by declaration. Moreover, the applicant desired the declaration primarily for use as evidence before the Swiss Court. It is not within this Court’s practice to issue a declaration about the state of the law, without argument based on conflicting interests, for use in another forum.

The preliminary issues raised by the respondent did not preclude consideration of the merits of the applications. The decision not to withdraw the request was made by virtue of the prerogative power of the Crown within the authority of the respondent as chief law officer of the Crown federal. The decision here questioned by the mandamus application was subject to judicial review.

Proceedings relating to the decision not to withdraw the request could have begun only after there was a refusal of the applicant’s request to the respondent that the request be withdrawn. The mandamus proceeding was commenced in a timely fashion. The principle of res judicata had no application for the earlier proceeding dealing with alleged violation of Charter rights went forward on agreed facts to determine expeditiously an agreed question of law. The scope of that proceeding, determined by agreement between the parties, did not provide for argument about the basis of authority to issue the request except with respect to the application of the Charter.

It was clear that the Swiss authorities considered the request to be concerned with allegations, not conclusions, of criminal activity. Further, they understood that coercive search and seizure of documents in Canada might require different processes than those applied in Switzerland. Even if the request was misleading to Swiss authorities, thus raising issues of responsibility to Swiss authorities under principles of international comity, it would not raise any issue of a duty owed to the applicant which would warrant the granting an order of mandamus directing that the request be withdrawn.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 8.

Criminal Code, R.S.C., 1985, c. C-46, s. 121.

Department of Justice Act, R.S.C., 1985, c. J-2, s. 4(b).

Federal Court Act, R.S.C., 1985, c. F-7, ss. 2(1) “federal board, commission or other tribunal” (as am. by S.C. 1990, c. 8, s. 1), 18 (as am. idem, s. 4), 18.1 (as enacted idem, s. 5).

Mutual Legal Assistance in Criminal Matters Act, R.S.C., 1985 (4th Supp.), c. 30, s. 3(2).

Treaty between Canada and the Swiss Confederation on Mutual Assistance in Criminal Matters, 7 October, 1993, [1995] Can. T.S. No. 24.

CASES JUDICIALLY CONSIDERED

APPLIED:

Apotex Inc. v. Canada (Attorney General), [1994] 1 F.C. 742 (1993), 18 Admin. L.R. (2d) 122; 52 C.P.R. (3d) 339; 162 N.R. 177 (C.A.); affd [1994] 3 S.C.R. 1100; (1994), 29 Admin. L.R. (2d) 1; 59 C.P.R. (3d) 82; 176 N.R. 1.

DISTINGUISHED:

A.T. Arche Treuhand A.G. v. Attorney General of Gibraltar, [1995] 1 L.R.C. 656 (S.C. Gibraltar); Air Canada v. British Columbia (Attorney General), [1986] 2 S.C.R. 539; (1986), 32 D.L.R. (4th) 1; [1987] 1 W.W.R. 304; 8 B.C.L.R. (2d) 273; 22 Admin. L.R. 153; 72 N.R. 135; Teh Cheng Poh alis Char Meh v. Public Prosecutor, Malaysia, [1980] A.C. 458 (P.C.).

REFERRED TO:

Schreiber v. Canada (Attorney General), [1996] 3 F.C. 931 (1996), 137 D.L.R. (4th) 582; 108 C.C.C. (3d) 208; 1 C.R. (5th) 188; 116 F.T.R. 151 (T.D.); Schreiber v. Canada (Attorney General), [1996] 3 F.C. 947 (1996), 96 DTC 6493; 118 F.T.R. 231 (T.D.); Schreiber v. Canada (Attorney General), [1997] 2 F.C. 176 (1997), 144 D.L.R. (4th) 711; 114 C.C.C. (3d) 97; 6 C.R. (5th) 314; 210 N.R. 9 (C.A.); Schreiber v. Canada (Attorney General), [1998] 1 S.C.R. 841; (1998), 158 D.L.R. (4th) 577; 124 C.C.C. (3d) 129; 16 C.R. (5th) 1; 225 N.R. 297; Jefford v. Canada, [1988] 2 F.C. 189 (1988), 47 D.L.R. (4th) 321; 28 C.L.R. 266; 21 C.P.R. (3d) 28 (C.A.); Re Balderstone et al. and The Queen (1983), 4 D.L.R. (4th) 162; [1983] 6 W.W.R. 438; 23 Man. R. (2d) 125; 8 C.C.C. (3d) 532; 6 C.R.R. 356 (C.A.); Solosky v. The Queen, [1980] 1 S.C.R. 821; (1979), 105 D.L.R. (3d) 745; 50 C.C.C. (2d) 495; 16 C.R. (3d) 294; 30 N.R. 380; Gariepy v. Canada (Administrator of Federal Court), [1989] 1 F.C. 544 (1988), 22 F.T.R 86 (T.D.).

APPLICATIONS for mandamus ordering withdrawal of the letter of request on behalf of the Minister of Justice sent to Swiss authorities seeking their assistance in connection with an RCMP investigation into allegations of offences under Criminal Code, section 121, and for a declaration concerning Canadian law, said to be for the guidance of Swiss courts. Applications dismissed.

APPEARANCES:

Robert W. Hladun, Q.C. and Eric C. Lund for applicant.

S. David Frankel, Q.C. for respondent.

SOLICITORS OF RECORD:

Hladun & Company, Edmonton, for applicant.

Deputy Attorney General of Canada for respondent.

The following are the reasons for orders rendered in English by

[1]        MacKay J.: By two originating notices of motion the applicant seeks relief pursuant to sections 18 [as am. by S.C. 1990, c. 8, s. 4] and 18.1 [as enacted idem, s. 5] of the Federal Court Act, R.S.C., 1985, c. F-7 as amended (the Act). The applications, arising from the same facts, were heard together. These reasons explain the disposition of both applications which are now dismissed by separate orders.

[2]        The first application, in Court file T-224-97, filed on February 7, 1997, seeks relief by various orders, primarily in the nature of mandamus, and the second, filed on June 16, 1998, in Court file T-1221-98, seeks a declaration, in a particular form. Both relate to a letter of request for legal assistance, dated September 29, 1995, signed by Kimberly Prost on behalf of the Minister of Justice (the request), and forwarded to Swiss authorities seeking their assistance in relation to the investigation of circumstances that ultimately came to be widely known as the Airbus investigation.

[3]        An earlier challenge to that request, filed in Court file T-670-96, by agreement between the parties was treated as an action and proceeded by stated case. Mr. Justice Wetston of this Court upheld the applicant’s position that the Minister’s request required prior judicial approval, in accord with Canadian standards for a police search and seizure of records in this country. Without prior judicial approval the request constituted an infringement upon the applicant’s right, under section 8 of the Charter [Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]], to protection against unlawful search and seizure.[1] That decision was upheld by the Court of Appeal[2] but it was reversed by the Supreme Court of Canada.[3] After that last decision was rendered in May 1998, the applicant filed the second of these two applications now before the Court, and the two were ordered to be heard together, since they arise from the same circumstances.

The background

[4]        The letter of request, signed by Ms. Prost, Senior Counsel and Director of the International Assistance Group of the Department of Justice, Canada, requested assistance of Swiss authorities in connection with an investigation by the Royal Canadian Mounted Police (RCMP) concerning allegations of offences under section 121 of the Criminal Code [R.S.C., 1985, c. C-46]. It included a request that Swiss authorities, inter alia, obtain and provide records and documents relating to the accounts, or safety deposit boxes, at a named bank in Zurich, Switzerland, held in the names of certain persons or corporations, including Mr. Schreiber. The letter from Ms. Prost included an assurance in the following terms:

On behalf of the Government of Canada, I give the assurance to the Competent Legal Authority of Switzerland that:

1.   In similar criminal investigations, Canada will extend to the Government of Switzerland reciprocal cooperation and is ready and willing to render assistance to Switzerland in accordance with the law of Canada; and

[5]        As a follow up to the letter, Ms. Prost wrote again to Swiss authorities, on November 14, 1995, to emphasize that the request was presented in the context of an investigation and that “the information provided in the request must be read in that context”. The letter urged that the request be kept confidential, and disclosed, essentially, only to those with a need to know.

[6]        After receipt of the request by Swiss authorities, the Swiss Federal Prosecutor ordered the bank concerned to produce records and documents relating to the applicant’s accounts. A challenge to that order by Mr. Schreiber and his wife, in the Swiss Federal Court, was dismissed on May 1, 1996.

[7]        None of the records and documents concerning the applicant’s bank accounts or safety deposit boxes that may have been obtained by Swiss authorities have as yet been delivered to Canadian officials. Initially that delay followed a request on behalf of the respondent that action on the request by Swiss authorities be suspended, as had been directed by Mr. Justice Gibson as a condition of his order of August 15, 1996, by which he stayed the decision of Wetston J. pending its appeal.[4] Following the decision of the Supreme Court of Canada in May 1998, which held that the Charter was not applicable in the circumstances, advice about that decision was apparently conveyed on behalf of the respondent to Swiss authorities, who were then asked to resume action on the request. Counsel for the applicant was aware of this action in July 1998. No action appears to have been taken by Swiss authorities until a further request for resumption was made in May 1999 by Canadian officials. This apparently led to further action by Swiss authorities.

[8]        After hearing these applications in Vancouver in April, 1999, while decision was reserved, I heard further applications by telephone conference, in early July 1999 following notice to the applicant limiting a time for submissions opposing an order that the Swiss Federal Prosecutor proposed for release of information in response to the request, and again on July 28, 1999 after that order had been made. In both those applications, interlocutory orders were sought to restrain delivery to, or receipt by, Canadian officials of information ordered by the Swiss Prosecutor to be released, pending disposition of the applications now dealt with in these reasons. I dismissed both of those applications. It was clear that the applicant could, and at the time of the second application affirmed his plans to, appeal the Swiss order to the Swiss Federal Court. In the circumstances I was not persuaded that irreparable harm was established as likely to affect the applicant if the interlocutory order were not granted and I should subsequently grant the relief the applicant here seeks. Moreover, in my opinion the balance of convenience favoured the respondent’s position that the interlocutory order sought should not be granted. At the date of these reasons it is the Court’s understanding that no information has yet been conveyed by Swiss authorities in response to the request.

[9]        It is well known that the request gave rise to other proceedings, the outcome of which is said by the applicant to have significance for these proceedings. In November 1995, a civil action for damages, said to arise from the letter of request, was commenced by the Right Honourable Brian Mulroney, former Prime Minister of Canada, as one of those who, with the applicant, was alleged in the request to be implicated in offences under investigation by the RCMP. That action was settled on January 5, 1997. By an agreement of settlement a formal apology was made to Mr. Mulroney, and the parties to that civil action, including the respondent Attorney General, acknowledged that some language in the request “indicates wrongly, that the RCMP had reached conclusions that Mr. Mulroney had engaged in criminal activity”. Any such conclusions were acknowledged to be unjustified. The settlement agreement also specified that the RCMP must continue investigating allegations of illegality, and that the RCMP and the Department of Justice, in sending the request, had acted within their legitimate responsibilities.

[10]      A few days later, by letter dated January 9, 1997, the then Minister of Justice and the Commissioner of the RCMP together wrote to the applicant, enclosing a copy of the settlement agreement reached with Mr. Mulroney, and they apologized to Mr. Schreiber, stating in part:

The RCMP investigation in this matter continues. It is important to emphasize, however, that it is an investigation at this stage, no charges have been laid, and all of those under investigation are presumed to be innocent.

Some of the language contained in the Request for assistance indicates, wrongly, that the RCMP had reached conclusions that you had engaged in criminal activity.

Based on what is set out above, and as a matter of logical consistency, the Government of Canada and the RCMP fully apologize to you for that language, and regret any effect that it may have had on you or your family.

[11]      On January 28, 1997, Daniel A. Bellemare, Assistant Deputy Minister of Justice, wrote to Swiss authorities to advise them of the settlement of the litigation with the Right Honourable Mr. Mulroney. His letter stated in part:

The apology issued to Mr. Mulroney (a similar apology was subsequently issued to Mr. Moores and Mr. Schreiber), related to some of the language used in the request, which indicated wrongly, that the RCMP had concluded that illegal activity had occurred. You will recall that in her letter to you of November 14, 1995 (attached for convenience), Ms. Prost reiterated that the letter of request was always intended to convey allegations only. I believe Swiss authorities have recognized this fact all along.

[12]      On January 30, 1997, after receipt of the letter of apology by the applicant, counsel for the applicant wrote to the respondent and asked that the letter of request be withdrawn. It was urged on behalf of the applicant that, in view of the terms of settlement of the litigation initiated by Mr. Mulroney and the letters of apology sent to the applicant and others, the basis for the request had been denied and the Government of Canada could no longer ask Swiss authorities to rely upon or to reply to the request. When there was no response on behalf of the respondent, the applicant filed the originating motion in T-224-97 on February 7, 1997. That application seeks orders in the nature of mandamus directing that a copy of the settlement agreement between the Right Honourable Mr. Mulroney and the respondent, and of the letter of apology sent to the applicant, be sent to Swiss authorities; that the respondent withdraw and revoke the request, dated September 29, 1995, and that all records or documents seized by Swiss authorities on behalf of the respondent since the request be forthwith delivered up to the applicant.

[13]      The request to withdraw the request was repeated on behalf of the applicant by letters sent in February 1998 and in May 1998. On May 25, 1998, counsel, acting on behalf of the Attorney General of Canada, wrote to advise that the request would not be withdrawn.

[14]      On June 16, 1998, following the decision of the Supreme Court of Canada, the applicant filed the second originating notice of motion here dealt with, in Court file T-1221-98, seeking declaratory relief. The declaration sought is in the following terms:

The Minister of Justice, acting on behalf of the government of Canada, and assisting the Royal Canadian Mounted Police in an investigation, is not competent to judicially authorize compulsory search and seizure measures requiring a banking institution to provide detailed client financial records:

all banking information regarding accounts (including all opening documents, transaction records, deposit slips, cheques, drafts, transfer forms, etc. showing the flow of funds through the accounts and all general correspondence between the clients and the bank) and search of safety deposit boxes and seizure of contents therein;

and that Canadian investigators would be subject to judicial authorization (a search warrant) from a competent Canadian judicial authority in order to carry out such measures if the subject matter were located in Canada.

[15]      It is urged that the declaration sought merely affirms the law applicable in Canada in relation to compulsory search and seizure of records in this country, and that this was acknowledged by counsel for the Crown in the course of the appeal to the Supreme Court of Canada in relation to the decision made by Wetston J. Counsel for the Attorney General does not dispute the law as set out in the concluding words of the declaration here sought by the applicant.

[16]      When these applications came on for hearing the applicant’s requests for relief were modified, and limited, by his “Response Application Record— Submissions”, to an order in the nature of mandamus ordering withdrawal of the letter of request, and an order in the nature of a declaration concerning Canadian law, said to be for guidance to Swiss courts in relation to any future Canadian request. The latter relief is based on the applicant’s understanding of Swiss law and his assumption that Canadian legal requirements are not understood by Swiss authorities so far as he considers them relevant in relation to the letter of request in this case.

[17]      In October 1998, William H. Corbett, Senior General Counsel, Canada Department of Justice, wrote to the Swiss Central Authority to which the earlier request and the supplementary letter had both gone in 1995, to advise of the applicant’s two challenges in these proceedings and the applicant’s allegations that Swiss authorities have been and continue to be misled with respect to matters arising from the request. In particular, the applicant was said to be concerned that Swiss authorities believed the RCMP had concluded, not merely suspected, that persons named in the request had committed offences, that the assurance in the request of reciprocal action by Canadian authorities was misleading, and that lawful authority of Canadian officials would be misunderstood.

[18]      In response to that advice from Mr. Corbett, Pascal Gossin, of the Swiss Federal Office of Police (Section for International Mutual Assistance), that is the Swiss Central Authority for requests of assistance, wrote on November 4, 1998, and stated in part that:

i)    the letter of Request was acted upon on the basis that those under investigation were only suspected of criminal activity;

ii)    the “assurance” of reciprocity in the Letter was understood by Swiss authorities as “a mere willingness on the part of the Government of Canada to provide assistance to Switzerland with all lawful measures available under Canadian law”, and that this is sufficient under Swiss law for Swiss authorities to decide to proceed; and

iii)   under Swiss law the mere possibility to order compulsory measures in executing a foreign request is sufficient and the Supreme Court in Switzerland had earlier ruled that Canadian law met requirements to satisfy action by Swiss authorities.

[19]      Applicable Swiss law, as described in the response of Mr. Gossin, is disputed by the applicant on the basis of conflicting evidence provided by affidavit, and cross-examination on that, of Swiss counsel in support of the applicant’s position.

[20]      One other circumstance is worth recording. At the time the request was sent, on September 29, 1995, a treaty or agreement between Canada and Switzerland, concluded in 1993, for cooperation in investigations in criminal matters, was not in force [Treaty between Canada and the Swiss Confederation on Mutual Assistance in Criminal Matters, 7 October, 1993, [1995] Can. T.S. No. 24]. That treaty became effective in November 1995, after the request was sent. The Mutual Legal Assistance in Criminal Matters Act,[5] enacted by Parliament in 1988 provides for implementation and application of responsibilities by Canadian authorities, and particularly the respondent, in relation to reciprocal treaty obligations, but it was not applicable to the request in this case. However, that statute clearly recognized the significance of existing non-treaty arrangements between Canadian authorities and those abroad, for subsection 3(2) provides:

3. …

(2) Nothing in this Act or a treaty shall be construed so as to abrogate or derogate from an agreement, arrangement or practice respecting cooperation between a Canadian competent authority and a foreign or international authority or organization.[6]

Issues

[21]      A number of issues are raised by the parties. Some of these, raised by the respondent, are preliminary issues. Thus, it is urged for the Attorney General that a decision to send the request, or in T-224-97, not to revoke or withdraw the letter of request, is not a decision subject to judicial review under sections 18 and 18.1 of the Federal Court Act, further that application is said to be filed late and that the doctrine of res judicata precludes the applicant from raising certain arguments, in particular concerning the respondent’s authority to issue the request.

[22]      Other issues arise from the applicant’s submissions concerning the request, that it should be revoked because it is misleading: in its expressed conclusions of wrongdoing which are negated by the apology to the applicant and the settlement with Mr. Mulroney, in the assurance of reciprocity that it contains, and in leaving Swiss authorities with misunderstanding about Canadian legal requirements for judicial approval in advance of any forced search and seizure of documents in Canada comparable to that here requested of Swiss authorities. Revocation of the request is said to be appropriate, indeed, it is said to be required in light of the applicant’s evidence and understanding of Swiss law.

[23]      I deal with these issues briefly after first determining the two main issues. These two are, aside from all other preliminary issues, whether the applicant has established the requirements for an order of mandamus of the nature here sought, and should the Court issue the declaratory relief here sought?

Mandamus

[24]      In Apotex Inc. v. Canada (Attorney General),[7] Mr. Justice Robertson for the Court of Appeal reviewed the criteria considered when an order for mandamus is sought. The relief is extraordinary, awarded in the exercise of judicial discretion. Among the criteria to be considered, the Court must be satisfied that a public legal duty is owed to the applicant, that the respondent has refused to fulfil the duty, and in considering all the circumstances, including the lack of any other remedy, on balance an order compelling a public officer to perform the duty is warranted.

[25]      In this case I am not persuaded that a duty owed under the law to the applicant is established. On his behalf it is urged that a duty does arise from ministerial, professional and ethical responsibilities of the Attorney General in circumstances where, it is urged, there is no lawful authority for the request to be issued. In the alternative, if the Court finds that the respondent has authority to issue the request, it is urged that a duty to withdraw the request arises from the same basic responsibilities of the respondent in light of what is described by the applicant as a statement on the Attorney General’s behalf that allegations of fact in the letter of request are without foundation. The duty thus urged is supported by implication from responsibilities of Canada, as the requesting country, as those responsibilities are said to be recognized in Swiss law concerning requests for assistance. I review each of the claimed bases for the duty the applicant seeks to establish.

[26]      The applicant’s argument that there is no lawful authority for the issuing of a letter of request, in the absence of treaty provisions which would bring the matter within the Mutual Legal Assistance in Criminal Matters Act,[8] is in part a response to a surprising position advanced on behalf of the respondent. Acknowledging that in this case that Act did not apply since at the time of the request the treaty concluded between Canada and Switzerland was not yet in force, counsel for the respondent urges that authority for the request is not based on the prerogative power of the Crown, but rather on the ground that the Attorney General, like anyone else, could make a request for assistance to Swiss authorities. The applicant shares the view that authority does not lie in the prerogative, but he disputes the concept that the respondent is essentially just an ordinary person who can make a request for assistance from authorities of another state.

[27]      While it may be argued that issuing the request falls within the general authority delegated to the respondent as Minister of Justice, to have superintendence of all matters connected with the administration of justice in Canada not within the jurisdiction of the provinces,[9] in my opinion, despite the shared view of counsel for the parties, issuance of a letter of request for assistance to a foreign state is lawful by virtue of the prerogative power. The sources of authority of the Crown, i.e. the government, are two: statutes enacted by Parliament and the prerogative, in so far as the latter source is recognized by the courts. The latter is the residue of powers inherent in the Crown, which the courts recognize as essential even in the absence of statutory provision enacted by Parliament. The particular act here in question, issuing or revoking the request, in my opinion, is done by virtue of the prerogative, in respect of the administration of justice, including the investigation of alleged criminal activities, and the initiation of means of fostering international co-operation for this purpose.

[28]      I am not persuaded that the Attorney General, acting on behalf of the Crown, is incompetent or is not authorized by law to issue the request. In doing so, she does not act simply as any other person. Rather she acts as the chief law officer and legal adviser of the Crown federal, the Government of Canada. In issuing a letter of request, a practice well known and respected among governments of nation states, acting pursuant to the comity of nations in the absence of a treaty, the Attorney General acts under the laws of Canada with respect to the prerogative power.

[29]      I turn to the applicant’s argument that, if the respondent has authority to issue the request, she also has a duty, arising from her official, professional and ethical responsibilities, to withdraw the request when, it is urged, it has been stated that the facts alleged in the request are without foundation. I do not share the applicant’s premise that the facts alleged in the request are stated to be without foundation for, in my opinion, the evidence does not support that characterization of the circumstances.

[30]      That characterization appears to arise from the settlement reached in the action initiated by former Prime Minister Mulroney and the letter of apology sent to the applicant following that settlement. It also is said to arise from cross-examination on an affidavit filed on behalf of the respondent in relation to the circumstances here. The affiant, Mr. Corbett was questioned, inter alia, about the request, the settlement with Mr. Mulroney and subsequent events. In my opinion, the acknowledgment that some language in the request wrongly indicated that the RCMP had concluded that criminal activities occurred, which the apology to Mr. Schreiber and the enclosed copy of the settlement agreement both referred to, is not an acknowledgement that the facts alleged in the request are without foundation. Indeed, the apology to the applicant expressly noted that “the RCMP investigation in this matter continues” and the settlement agreement with the former Prime Minister affirmed that investigation of allegations of illegality would continue, and that the RCMP and the Department of Justice had acted within their responsibilities in sending the request.

[31]      The basis for the duty claimed is not established as arising from a statement on the respondent’s behalf that the allegations of fact in the letter of request are without foundation. That has not been acknowledged except in so far as the language in the request wrongly indicated that the RCMP had concluded that criminal activities had occurred.

[32]      The applicant implies a duty on the respondent to withdraw the request as a result of obligations said to arise in light of requirements of Swiss law concerning the granting of any request. Much attention was given to the requirements said to arise under Swiss law, in respect of the need for the requesting authority to demonstrate that legal requirements have been met for making a request if it were made in its home country, in this case that prior judicial approval had been granted for enforced production of records. Moreover, it is urged that Swiss law requires any statement of reciprocity in the request to spell out limitations existing under the law of the requesting state. Evidence of Swiss legal experts, on this and other aspects of Swiss law, was presented and its significance was argued.

[33]      In my opinion, interesting as the Swiss legal experts’ opinions are, they are not helpful. Experts for each of the parties disagree on key issues raised by the applicant. Moreover, their opinions are not relevant in resolution of the matter before me, for whether the applicant is entitled to the relief sought is entirely dependent on Canadian, not Swiss, law. I leave the determination of the application of Swiss law in the circumstances of this case to the Swiss Court. Moreover, I note that to the extent there may be said to be any duty upon the respondent arising under or by implication from Swiss law, that duty would be one owed to Swiss authorities, not to the applicant.

[34]      The applicant relies particularly upon a decision of the Supreme Court of Gibraltar, A.T. Arche Treuhand A.G. v. Attorney General of Gibraltar, [1995] 1 L.R.C. 656 (S.C.), which criticized the role played in that case by the Attorney General of Gibraltar. In the result, the Court there excluded from evidence in Gibraltar criminal proceedings certain banking information provided by Swiss authorities to the Attorney General of Gibraltar in response to two letters of request the latter had sent, letters which the decision subsequently described as misleading and sent without any authorization under the law of Gibraltar. Swiss authorities in that case had sought assurance that the Attorney General had authority to issue the requests, and they were assured of that by the Attorney General. In that case Chief Justice Kneller of the Gibraltar Supreme Court had no difficulty in determining the requests were improper, for under the law of the colony only the Governor could initiate a letter of request. In my view the case has no relevance to the circumstances before me.

[35]      For the applicant reliance is also placed in other decisions dealing with enforcement of duties owed by public officers. In Air Canada v. British Columbia (Attorney General),[10] mandamus was granted to order the Attorney General of British Columbia to render particular advice, which he was obligated to do in the circumstances, to the Lieutenant Governor, to grant a fiat permitting legal action against the Crown provincial. The action contested the constitutional validity of legislation under which the province had collected, and retained, certain taxes. In Teh Cheng Poh alias Char Meh v. Public Prosecutor, Malaysia,[11] the Privy Council found that statutory authority to create a security area for reasons of state security included a duty to advise revocation of the security arrangements when the conditions warranting their creation no longer existed.

[36]      In my opinion, neither of these cases is helpful. Here there is no constitutional duty on the respondent as the Court found existed in the Air Canada case and there has been no fundamental change in circumstances after the request was issued, as was found in Teh Cheng Poh. I have already indicated that I do not accept the acknowledgement of improper wording in the request as an acknowledgment that the allegations under investigation were denied. I do not read the terms of settlement with the former Prime Minister or the letter of apology to the applicant in that way. Indeed both specify that the investigation would be continuing.

[37]      For the reasons here noted I am not persuaded that the applicant has established that a public legal duty to withdraw the request is owed to him in the circumstances of this case. The primary criterion for an order of mandamus is not made out.

[38]      If I am wrong in this conclusion there are two other considerations which, in my opinion militate against issuing an order to withdraw the request. The first is that another responsibility of the respondent is engaged in this case, that is, in relation to the administration of justice, to facilitate arrangements for the investigation by police authorities of allegations of criminal activity. That responsibility gives rise to a public duty owed to the public at large. Weighed in the balance with the duty claimed to be owed to the applicant, I am not persuaded that without more, for example some evidence of clear abuse by the respondent, the balance would favour grant of an order of mandamus, as the applicant seeks.

[39]      The second consideration to be weighed is that the decision to issue the request, or to withdraw it when made, is one within the accusatorial and investigatory functions of the law officers of the Crown in the administration of justice. I agree with the respondent that in such matters the Court should accord very considerable deference to the decision of the Attorney General. By long-standing practice courts do not interfere in such matters[12] barring some flagrant impropriety on the part of the respondent. In modern parlance, the decision to refuse to withdraw the request, at a minimum must be determined to be patently unreasonable. In my opinion that is not the case here.

[40]      The applicant’s claim for mandamus is thus dismissed. I am not persuaded a public duty is established, one that is owed to the applicant, to withdraw the request.

Declaratory relief

[41]      The applicant’s request for declaratory relief as originally framed was detailed and specific, as set out earlier in these reasons. In later submissions[13] an alternative formulation was proposed, in response to suggestions on behalf of the Attorney General about the content of a declaration if the Court, despite the respondent’s opposition, should decide this is an appropriate case for declaratory relief. The applicant’s alternative form is this:

Neither the Minister of Justice nor the RCMP could obtain in Canada the coercive measures requested in Switzerland without prior judicial authorization. That condition has not been satisfied in this case, nor had there been a confirmation from such a judicial authority that the conditions are satisfied were the subject matter located on Canadian soil.

[42]      This is not a case for the award of declaratory relief claimed by the applicant. It is urged that the respondent does not dispute the basic legal proposition sought to be declared. Indeed counsel for the Attorney General agrees with it. Thus there is no justiciable issue between the parties, no legal issue for the Court to resolve by declaration.[14] Moreover, the applicant desires the declaration for use in dealing with Swiss authorities, and primarily as evidence before the Swiss Court. The applicant concedes, as the respondent urges, that this Court would not issue a declaration like that here sought for use in a Canadian court, but for the applicant it is urged that restraint has no application where the declaration is sought for use in a foreign court. In my opinion there is no basis for that submission. Rather, it is simply not within this Court’s practice to issue a declaration about the state of the law, without argument based on conflicting interests, for use in another forum.[15]

[43]      Moreover, Swiss authorities have been apprised of Canadian law, as has been acknowledged by Mr. Gossin’s letter of November 4, 1998. If Swiss law requires more than has been provided, as the applicant urges, that will be established by decision of the Swiss Court in any proceeding the applicant may now have initiated to appeal the order of the Swiss Prosecutor to release information in response to the request.

Preliminary issues

[44]      While it is unnecessary for purposes of this decision to deal with preliminary issues raised by the respondent, I deal with those briefly in the event that my determination on the main issues is not upheld in any appeal.

[45]      The respondent urges that the decision not to withdraw the request is not subject to judicial review by this Court since it is not a decision of a “federal board, commission or other tribunal” as defined in subsection 2(1) of the Federal Court Act[16] because it is not a decision made within “jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made pursuant to a prerogative of the Crown”. I have already indicated my opinion that the decision is made by virtue of the prerogative power of the Crown within the authority of the respondent as chief law officer of the Crown federal. In my opinion the decision here questioned by the application for mandamus is subject to judicial review by this Court.

[46]      A second preliminary issue raised by the respondent is that some of the submissions of the applicant, in particular those questioning the respondent’s authority to issue the request, were not raised in timely fashion and, moreover, they should be precluded now by application of the principle of res judicata. It is urged these submissions could have been made in the applicant’s first proceeding, heard by Mr. Justice Wetston, and the Court should not now permit them to be raised. Yet it is acknowledged by the respondent that proceedings relating to the decision not to withdraw the request could only have begun after there was no action, and ultimately there was a refusal, on the applicant’s request to the respondent that the request be withdrawn. The mandamus proceeding (T-224-97) obviously commenced in a timely fashion. As for the principle of res judicata, in my view, it has no application here for the earlier proceeding dealing with alleged violation of Charter rights went forward on agreed facts to determine expeditiously an agreed question of law. The scope of that proceeding, determined by agreement between the parties, did not provide for argument about the basis of authority to issue the request except with respect to the application of the Charter.

[47]      In sum, the preliminary issues raised by the respondent do not preclude consideration of the merits of the applications.

Alleged defects in the requests

[48]      The applicant urges that the request on its face is defective and without further explanation is misleading to Swiss authorities. Thus, it is urged that its allegation of criminal activity on the part of a prime suspect, identified in the request, former Prime Minister Mulroney, has not been denied to Swiss authorities. Further, it is said that the request implies authority on the part of the respondent or her representatives, to direct coercive search and seizure of documents in Canada without prior judicial autority, and that Canada (or Ms. Prost) would provide assistance upon request of the Swiss on a reciprocal basis. I note that the alleged deficiency of the assurance of reciprocity is ultimately not relied upon by the applicant in final written submissions.

[49]      As for the other defects alleged, it is clear that the Swiss authority for dealing with the request from Canada, the Swiss Federal Police authority, considered the request to be concerned with allegations, not conclusions, of criminal activity. Further, it was understood by that authority that coercive search and seizure of documents in Canada might require different processes than those applied in Switzerland. Those understandings, it seems to me, are acknowledged by Mr. Gossin’s letter of November 1998, responding to the letter of Mr. Corbett which set out the applicant’s claims, raised in the applications now before the Court, that misunderstandings had been left with Swiss authorities by the request.

[50]      Even if I were persuaded that the request was misleading to the Swiss authorities, a view I do not share, that might raise issues of responsibility to Swiss authorities under principles of international comity, and in Canada’s own long-term self interest. Yet it would not raise any issue of a duty owed to the applicant which would warrant the grant of an order of mandamus directing that the request be withdrawn.

Conclusion

[51]      For the reasons set out, I am not persuaded that a public legal duty owed to the applicant is here established. There is no basis for an order of mandamus. Further, there is no difference in the views of the parties on the basic issue of law which the applicant seeks to have declared, that is, that coercive search and seizure of documents in Canada requires prior judicial authorization by the grant of a search warrant. There is no justiciable issue between the parties that a declaration would resolve. In these circumstances the Court declines to grant a declaration in the forms sought, or to similar effect, the avowed purpose of which is that it be used as evidence in proceedings in the Swiss Federal Court or with Swiss authorities.

[52]      Separate orders now issue, one in each of the Court’s files, in T-224-97 dismissing the application for an order in the nature of mandamus, and in T-1221-98, dismissing the application for a declaration about Canadian law that would state the basic legal issues on which the parties are agreed. Both applications are dismissed, with costs on the normal party-and-party basis, but treated on the basis of a single hearing for the two applications.

---