MOGHADDAM ET AL. COMPLAINT AGAINST COMMISSIONER BRENDA LUCKI
1. Whereby, the following are the complainants herein (collectively, “the
complainants”):
Complainant 1: Shahin MOGHADDAM, citizen of Canada, personally
and on behalf of the Estate of his wife, Shakiba FEGHAHATI,
deceased or as Personal Representative of his wife, Shakiba
FEGHAHATI deceased;
AND on behalf of the Estate of his son, Rosstin MOGHADDAM
deceased or as Personal Representative of his son Rosstin
MOGHADDAM deceased;
Complainant 2: Mehrzad ZAREI, citizen of Canada, personally and on behalf
of the Estate of his son, Arad ZAREI deceased or as Personal
Representative of his son, Arad ZAREI deceased;
2. Whereby, the above-named deceased family members were Canadian
citizens;
3. Whereby, the complainants were established to be the legitimate legal
representatives of their above-named family members in Zarei v Iran, 2021
ONSC 3377 (CanLII), hereafter Zarei v. Iran.
https://www.canlii.org/en/on/onsc/doc/2021/2021onsc3377/2021onsc33
77.html
4. Whereby their above-mentioned family members were victims of numerous
crimes, including but not limited to, a terrorist act, conspiracy to commit
murder, offence involving an explosive or other lethal device, and
obstruction of justice, as a result of missiles shot against them while they
were passengers of a civilian airliner on January 8, 2020;
5. Whereby the perpetrator publicly admitted to the actus reus, ie the act itself,
and were found liable in Zarei v. Iran, the admitted perpetrator being the
organization called the Islamic Revolutionary Guard Corps (“IRGC”), led by
Ali KHAMENEI, the Supreme Leader of Iran, and senior commanders,
Mohammad BAGHERI also known as Mohammad-Hossein AFSHORDI,
Hossein SALAMI, Seyyed Abdolrahim MOUSAVI, and Amir Ali
HAJIZADEH;
6. Whereby the perpetrator only denied the mens rea, or intention behind the
act, claiming the act to have been a human error.
7. Whereby the obstruction of justice by the destruction of evidence by the IRGC
has been widely reported, including by the government of Canada,
government of Ukraine, and numerous North American reporters who
witnessed the site of the plane’s wreckage;
8. Whereby the above-named complainants retained expert evidence and
submitted a claim in the Ontario Superior Court (Zarei v. Iran).
9. The experts found that the acts of the accused could not have been
accidental, and were intentional.
10. The judge of the Ontario Superior Court, Justice Edward Belobaba, upon
reviewing the expert evidence, found that the acts of the accused were, on a
balance of probabilities, intentional, and constituted acts of terrorism under
Section 83.01(1)(a) of the Criminal Code R.S.C. 1970, c. C-34, as amended.
SUBECT MATTER OF THE COMPLAINT
11. Whereby, the complainants were provided with a letter from the
Commissioner of the RCMP, Brenda Lucki (“the Commissioner”), by email, on
or about July 7, 2021, stating that the Commissioner would not open a
criminal investigation against the perpetrators; (Appendix A)
12. The statements of the letter of July 7, 2021, in their entirety are the subject
matter of this complaint, including that:
A question was also raised on whether the decision to not commence or
lead a domestic criminal investigation in Canada was an RCMP decision. It
is indeed our responsibility to make these decisions, though we consult
with legal counsel and other advisors on the potential viability of obtaining
physical evidence, access to witnesses and consider related issues. In this
case, it was the RCMP that decided Ukraine was the most competent
authority to lead a criminal investigation into the downing. This is because
Ukraine had greater rights to access the crash site, to the wreckage, and
to witnesses and victims in other countries.
FACTUAL AND LEGAL FOUNDATION OF THE COMPLAINT
13. The following facts are undisputed and reported widely by credible media
sources. They are accepted as credible and summarized in Zarei v. Iran as
follows:
[9] The actual events of January 8, 2020 are not in dispute. The grim chronology, as
set out in numerous international reports and media investigations, can be
summarized as follows.
[10] Ukraine International Airlines Flight PS 752 (a Boeing 737-800) was shot down by
two Islamic Revolutionary Guard Corps (“IRGC”) Tor M-1 missiles shortly after
departing Tehran for Kiev. The first missile hit at 6:15 a.m., the second about 30
seconds later. Engulfed in flames, Flight 752 turned to return to the airport and
continued flying for another four minutes. Then it crashed. All 167 passengers (55
Canadian citizens, 30 permanent residents and 53 others on their way to Canada)
and 9 crew were killed.
[11] After several days, the IRGC publicly admitted responsibility for the crash, blaming
human error. The commander of the IRGC Aerospace Force said a defense system
operator mistook the passenger jet for a cruise missile. Iranian media offered two
explanations: that it was a mistake made by a junior IRGC officer operating the
missile system or the result of electronic warfare by the U.S. Army that caused the
missile system to see the Boeing 737-800 airplane as a U.S. cruise missile.
14. Any criminal investigation, therefore, will be necessarily narrow, focusing
solely on whether the act of violence was intentional or accidental;
15. To determine whether it was intentional or accidental requires expert
evidence to assess the plausibility of the accused’s claim that it was an
accidental act;
16. The government of Ukraine and Canada, as well as experts retained by the
complainants, have agreed that the acts could not have been accidental;1
17. The cited reports, including that of Ukraine, Canada, and the United Nations,
point to lack of credibility of Iran’s theory, gaps of information, and
destruction of evidence by the IRGC.
18. In reviewing the evidence, the Ontario Superior Court pronounced
judgement, concluding that, on a balance of probabilities:
[52] I find on a balance of probabilities that the missile attacks on Flight 752
were intentional and directly caused the deaths of all onboard. I further find on a
balance of probabilities that, at the time in question, there was no armed conflict
in the region.
1 For analysis of the expert reports, as well as the UN and Canada’s dismissal of Iran’s “human error” theory, see
paragraphs 40-44 of Zarei v. Iran. For Ukraine’s dismissal of the theory, see:
[53] The plaintiffs have established that the shooting down of Flight 752 by the
defendants was an act of terrorism and constitutes “terrorist activity” under the
SIA, the JVTA and the provisions of the Criminal Code, as discussed above.”
19. It is the duty of members of the RCMP who are peace officers, which includes
the Commissioner, as their most basic duty under Section 18 the RCMP Act:
(a) to perform all duties that are assigned to peace officers in relation to the
preservation of the peace, the prevention of crime and of offences against the
laws of Canada and the laws in force in any province in which they may be
employed, and the apprehension of criminals and offenders and others who
may be lawfully taken into custody (emphasis added);
20. It is the responsibility of every member of the RCMP, including the
Commissioner, to respect the rights of all persons, maintain the integrity of
the law, law enforcement, and administration of justice; 2
21. The Commissioner, like all members of the RCMP, must also perform its
duties promptly, impartially and diligently, in accordance with the law and
without abusing her authority.3 Therefore, although the Liberal government
of Canada may be unclear as its political intentions with the IRGC, the RCMP
must nonetheless fulfill its obligations to be impartial, respect the rights of all
persons, and prevent crime and offenses against the laws of Canada.
22. The RCMP’s discretion to decline opening an investigation is not limitless,
and the decision must be made rationally on a subjective and objective basis:
R v Beaudry, 2007 SCC 5
23. The RCMP’s discretion, as in all administrative decisions, must be exercised
reasonably, such that the exercise of its discretion is justifiable, intelligible,
and transparent.
Canada (MCI) v Vavilov, 2019 SCC 65 at para 65
THE COMPLAINT
24. The complaint is not about national security;
25. In the case at hand, there is a strong public interest to:
• deter criminal acts against Canadian citizens, according to the RCMP’s
principal duty under Section 18 of the RCMP Act;
• secure and preserve evidence of or relating to an offence on behalf of the
victims, in collaboration with experts as well as the Ukrainian authorities,
and
• pursue justice before domestic courts as well as the International
Criminal Court;
26. Declining to act on behalf of victims to investigate would thwart these
justifiable public interests.
27. And whereas the IRGC has been legislated to be added to Canada’s terrorist
list, it is in the public interest to determine the terrorist tendencies of the
IRGC;
28. And despite the Commissioner declining to open an investigation, the
government of Canada has made an official statement that the RCMP is
engaged in criminal investigations against the IRGC to determine if it is a
terrorist organization, stating:
“our national security and law enforcement agencies are actively engaged in
monitoring the activities of these groups, and gathering the evidence required to
support a determination of listing as a Terrorist Organization.”
https://petitions.ourcommons.ca/en/Petition/Details?Petition=432-00723
29. The contradiction between the statement of the government of Canada that
the RCMP is investigating the terrorist tendencies of the IRGC, versus the
Commissioner’s statement that it is not, signifies bad faith and/or
discrimination, partiality, ultimately unjustifiable use of police discretion, and
the Commissioner’s neglect of the RCMP’s duties to prevent unlawful acts of
terrorism and violence against Canadian citizens.
30. And the Iran government’s destruction of evidence means Ukraine does not
have any particular advantage over Canada;
31. And in any case, that Ukraine and Canada have concurrent jurisdiction to
investigate the matter before their domestic courts and at the International
Criminal Court;
32. Whereas the Ukrainian Prosecutor General’s Office justifies the opening of a
criminal investigation in the following way, directly contradicting the
reasoning of the Commissioner in her letter:
The investigation of this crime is carried out in absolute conditions of
extraterritoriality, without having access to the remnants of the plane
wreckage and without the possibility of questioning the witnesses and
other persons in the case in the territory of Iran. At the same time, all that
did not become a hindrance to the advancement of the investigation
toward establishing the objective truth.
https://www.gp.gov.ua/ua/b_737
33. And whereas the Ukrainian government does not have jurisdiction to pursue
justice for the 55 Canadian nationals;
34. And the Ukraine has only lost 11 citizens compared to the 55 Canadian
citizens;
35. And the Ukrainian authorities have solely relied on expert reports to make
their findings, and the only issue to be investigated is the intentionality of the
act, the identity and act itself having been established;
36. And Canadian and Ukrainian investigators have the ability to share their
findings:
37. The RCMP Commissioner has failed to follow her duties under the RCMP Act,
and acted unreasonably or partially under political influence;
38. The RCMP Commissioner has compromised the integrity of the Criminal
Code, opening it to opportunism and abuse.
RESOLUTION SOUGHT
39. As a result of the above, the Complainants seek a Canadian criminal
investigation into the downing of Ukraine International Airlines Flight
PS752 on January 8, 2020.
40. Furthermore, in order to maintain the public trust and reinforce the high
standard of conduct expected of the Commissioner as a member of the Royal
Canadian Mounted Police, the Complainants request an investigation into
the Conduct of the Commissioner as it relates to her decision on Flight
PS752 and all the circumstances surrounding that decision, as provided by
the RCMP Act:
40(1) If it appears to a conduct authority in respect of a member that the
member has contravened a provision of the Code of Conduct, the conduct
authority shall make or cause to be made any investigation that the conduct
authority considers necessary to enable the conduct authority to determine
whether the member has contravened or is contravening the provision.
41. The Complainants seek to ensure the Commissioner is held responsible and
accountable for her decision and for the totality of her conduct in relation to