Lawyers for the federal government are trying to dismiss an application seeking a judicial review into why the RCMP refused to launch an investigation into a deadly 2020 airliner attack that killed 63 Canadians.
Late last year, Shahin Moghaddam — whose wife and 10-year-old son died after Ukrainian International Airlines flight 752 was shot down shortly after departing Tehran on Jan. 8, 2020 — filed suit in federal court seeking a review into why Canada’s National Security and Intelligence Review Agency (NSIRA) suspended their investigation into his complaints over the RCMP’s decision not to investigate the attack.
A July 2021 letter to victims’ families from then-RCMP commissioner Brenda Lucki explained that the federal police force would not launch a criminal investigation into the crash, saying that Ukraine is in a much better position to prosecute.
That prompted Moghaddam to lodge a complaint with the RCMP’s civilian review and complaints commission, which in turn forwarded the complaint to NSIRA, as the matter concerned issues of national security.
It wasn’t until last August that Moghaddam learned the review agency had already commenced and subsequently halted their investigation into the RCMP’s actions, citing concerns that an overlapping Canadian probe would hinder the official investigation launched three years ago by the Ukrainian government.
Moghaddam’s lawyer Asher Honickman maintains that, due to Russia’s ongoing invasion of Ukraine, the government has far more pressing concerns.
In their most recent filing, the government said the agency’s investigation is merely on hold, and that the administrative process has yet to play out.
“The amended notice of application is premature, as it seeks to bypass the ongoing administrative process,” the government’s motion reads, referring to the review agency’s ongoing-but-paused investigation.
Moghaddam’s wife, Shakiba Feghahati, 39, and their 10-year-old son Rosstin, were among the 176 passengers of PS752 killed when it was struck by two Russian-made surface-to-air missiles shortly after departing Imam Khomeini International Airport in the Iranian capital of Tehran.
Iranian army officials admitted to the downing two days later, claiming operators had mistaken the Boeing 737-800 airliner for an American cruise missile.
In their response to the government’s motion, Moghaddam’s lawyers argue that even if the review agency’s investigation were to continue, the move to suspend their investigation amounts to a decision on its own, particularly since the federal agency has no mandate on if — or when — the investigation would ever continue.
“The statutory provision empowering the review agency to suspend the matter does not impose a time limit,” Moghaddam’s response states.
As for the government’s position that other remedies exist for Moghaddam, his lawyers say no such option exists.
“The (National Security and Intelligence Review Agency) Act does not provide for an internal appeal mechanism,” reads Moghaddam’s response.
“There has been excessive delay, the application is meritorious, and there is no adequate alternative remedy.”
At most, his lawyers maintain, Moghaddam would only be entitled to request reconsideration of the review agency’s decision to suspend their investigation.
“The courts have been clear that a statutory power to reconsider a decision does not amount to an adequate alternative remedy,” the response explains, later stating that a decision to indefinitely suspend the investigation would not be subject to any meaningful review.
“The review agency would effectively be able to ignore citizens’ complaints going forward under the auspices of involving a suspension.”
That, the response states, would “increase the power of the executive branch beyond what Parliament intended, what the constitution envisages, and what the rule of law can bear.”
Both the RCMP and attorney general’s office were contacted for comment.
Honickman told the National Post they’re concerned the review agency may never restart their investigation, and that only the courts can compel them to do so.
“The review agency has largely suspended its investigation and that suspension has now been ongoing for the better part of a year. There’s no indication of when it will be lifted, if ever,” he said.
“We are very concerned that unless the court makes that order now, the RCMP may never initiate a criminal investigation into the attack, and as a result, the perpetrators in the Iranian regime may never be brought to justice.”
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