Date: 20090123
Docket: T-2193-07
Citation: 2009 FC 69
Ottawa, Ontario, January 23,
2009
PRESENT: The Honourable Madam Justice Hansen
BETWEEN:
DAVID
ALLAN HRUSHKA
Applicant
and
THE MINISTER OF FOREIGN
AFFAIRS
AND PASSPOST CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
Introduction
[1] A Passport Canada Adjudicator ordered
that passport services be withheld from the Applicant for a period of three
years. In these reasons, I conclude that the decision must be set aside.
Facts
[2] As the determinative issue centres on the
authority of the Adjudicator to make such an order, only a brief summary of the
facts is necessary. Passport Canada issued a passport to the Applicant on
October 23, 2002. In June 2005, the United States Secret Service alerted
Passport Canada that copies of the Applicant’s passport
were found in the possession of an individual being investigated for fraud. In
June 2007, law enforcement officials in Ireland reported that copies of the Applicant’s
passport had been used by an individual attempting to commit acts of fraud. In
July 2007, the Canadian Border Services Agency notified Passport Canada that copies of the Applicant’s passport had been found on a
laptop seized from an individual who had entered Canada
illegally.
[3] In July 2007, the Applicant submitted an
application to renew his passport that was due to expire on October 23, 2007.
On August 22, 2007, the Security Bureau of Passport Canada (Bureau) informed the Applicant that he was the subject of
an investigation relating to the posting of the biographical information page
(the bio-page) of his passport on a website.
[4] Subsequent correspondence between the
Applicant and Passport Canada reveals that the Applicant had been
mugged in April 2000 and his identification was stolen. The Applicant then
encountered difficulties with the fraudulent use of his identification. The
Applicant claims he was advised by a lawyer to post copies of his personal
identification including the bio-page of his passport on his website in an
attempt to thwart further episodes of identity theft.
[5] As a result of its investigation, the
Bureau forwarded the file for adjudication to the Passport Canada Adjudicator
on October 15, 2007. The Bureau recommended to the Adjudicator that the
Applicant’s passport be revoked pursuant to paragraph 10(2)(c) of the Canadian
Passport Order, SI/81-86 (Order) and that passport services be withheld from
the Applicant for five years.
[6] In his November 6, 2007 decision, the
Adjudicator determined that although the grounds to revoke the passport had
been met, the Bureau’s recommendation in this regard had been rendered moot in
light of the expiration of the passport. However, based on the circumstances
of the case, he ordered that passport services be withheld from the Applicant
for three years.
[7] In written submissions and at the outset
of the hearing, the Respondent took the position that the application should be
struck based upon the absence of a proper evidentiary record. After hearing
the submissions of the parties, I was satisfied that a complete record was
before the Court and that the Respondent was not prejudiced by the deficiencies
in the Application Record. I advised the parties that I would hear the
application on its merits.
Issue
[8] The determinative issue in this
proceeding is whether in ordering that passport services be withheld from the
Applicant for three years the Adjudicator acted beyond his authority.
Submissions
of the Parties
[9] The Applicant’s primary argument is that
the Adjudicator lacked authority in ordering that passport services be withheld
from the Applicant.
[10] The Respondent’s position may be
summarized as follows. The Respondent disputes the Applicant’s assertion that
Passport Canada’s authority is limited to either a refusal to grant a passport
under section 9 of the Order or to revoke a passport under section 10 of the
Order. Relying on section 2 of the Order, the Respondent submits that Passport
Canada has been charged by the Minister of Foreign Affairs and International
Trade with “the issuing, refusing, revoking, withholding, recovery and use of
passports.” The Respondent argues that further support for this broader
authority is found in the fact that passports remain the property of Her Majesty
the Queen in Right of Canada and are issued on the conditions that the passport
holder properly use and safeguard the passport.
[11] As the Adjudicator determined that there
were grounds to revoke the passport pursuant to paragraph 10(2)(c) of the
Order, the expiration of the passport prior to the Adjudicator’s decision did
not limit Passport Canada’s authority to withhold passport
services.
[12] The Respondent maintains that the
authority to withhold passport services flows logically from the authority to
revoke a passport in order to give practical effect to the revocation. The
Respondent submits that determining an individual’s entitlement to passport
services is not a singular occurrence. Rather, the authority of Passport Canada to exercise the powers described in section 2 of the Order
permits assessment of an individual’s entitlement to passport services on an
ongoing basis. Finally, in contrast to the authority of issuing, refusing to
issue, and revoking a passport, the authority of withholding passport services
found in section 2 of the Order is not limited to any specific circumstances.
Standard
of Review
[13] The parties agree and I accept that the
standard of review in relation to Passport Canada’s
authority to impose a particular sanction is correctness.
Analysis
[14] Section 2 of the Order, in part, states:
"Passport
Canada" means a section of the Department
of Foreign Affairs and International Trade, wherever located, that has been
charged by the Minister with the issuing, refusing, revoking, withholding,
recovery and use of passports. (Passport Canada)
[15] Turning first to the language of the
provision itself, it is simply descriptive of a section within the Department
of Foreign Affairs and International Trade “that has been” charged with certain
responsibilities by the Minister. The language does not purport to confer on
Passport Canada the authority to take any of the actions
enumerated in the provision. Instead, the source of Passport Canada’s discretionary authority is found within specific
provisions of the Order. For example, Passport Canada’s
broad authority to require specific documentation or materials relevant to the
issuance of a passport or the provision of passport services is provided in
sections 6 and 8 of the Order. Similarly, and of particular relevance to the
present judicial review, the authority and the basis upon which Passport Canada
may refuse or revoke a passport are described in paragraphs 9 and 10 of the
Order, respectively. In contrast, the Order does not explicitly describe the
scope or conditions for the proper exercise of the purported authority to
withhold passport services as a stand alone sanction. The absence of these
details in the Order indicates that Passport Canada has not been empowered to
withhold passport services as an independent penalty for misuse of a passport.
[16] Second, the Respondent’s argument runs
contrary to the use and purpose of statutory definitions and recognized
drafting conventions. As stated in Sullivan and Drieger on the Construction
of Statutes, [Ruth Sullivan, Sullivan and Drieger on the Construction of
Statutes (Vancouver: Butterworths, 2002), p. 51.] there are
two kinds of statutory definitions, exhaustive and non-exhaustive. Exhaustive
definitions are normally introduced with the term “means” and serve the
following purposes: “to clarify a vague or ambiguous term; to narrow the scope
of a word or expression; to ensure that the scope of a word or expression is
not narrowed; and to create an abbreviation or other concise form of reference
to a lengthy expression.” Non-exhaustive definitions are normally introduced
by the word “includes” and serve “to expand the ordinary meaning of a word or
expression; to deal with borderline applications; and to illustrate the
application of a word or expression by setting examples.” Thus, it can be seen
that a statutory definition does not typically have substantive content.
Indeed, the inclusion of substantive content in a definition is viewed as a
drafting error. As stated by Francis Bennion in Statutory Interpretation:
Definitions with
substantive effect
It is a drafting error (less frequent now than formerly) to incorporate a
substantive enactment in a definition. A definition is not expected to have
operative effect as an independent enactment. If it is worded in that way, the
courts will tend to construe it restrictively and confine it to the proper
function of a definition.
[17] Although intended to be used only as a
guide, this same view is echoed in the Drafting Conventions of the Uniform
Law Conference of Canada. Section 21(2) states that “[a] definition should
not have any substantive content.”
[18] Accordingly, I reject the Respondent’s
argument that Passport Canada’s authority to withhold passport services is
found in section 2 of the Order.
[19] As noted above, the Respondent also
argues that the authority to withhold passport services flows logically from
the authority to revoke a passport in order to give practical effect to the
revocation. Without deciding whether this assertion is sound in law, it does
not assist the Respondent in the circumstances of the present case. In my
opinion, there is a distinction to be drawn between the withholding of passport
services for a specified period of time in conjunction with a refusal or a
revocation decision and the withholding of passport services as a stand alone
sanction. Accordingly, powers associated with revocation may not be relied
upon as the source of an independent sanction of withholding passport services.
[20] Finally, the Respondent also argues that
the authority to withhold passport services found in section 2 is not limited
to any specific circumstance. However, as this argument is reliant upon the
assumption that section 2 confers a power to withhold passport services as a
stand alone sanction it may be disregarded for the above reasons.
[21] For
these reasons, I conclude that the Order does not authorize the imposition of
the withholding of passport services as a stand alone sanction.
[22] While I fully appreciate the importance
of maintaining the integrity of the passport program, the comments of Justice
Phelan in Khadr v. Canada (Attorney General) 2006 FC 727, [2007] 2 F.C.R. 218 are
equally important. At paragraph 4 he stated:
4 For the reasons which follow, I
have concluded that, in this case, every citizen is entitled to be treated,
procedurally at least, in the manner in which the government says his or her
rights or interests will be dealt with. It is part of our law of procedural
fairness that in order to know the case one must meet, one is entitled to know
who will decide and on what criteria the decision may be based.
Conclusion
[23] As the Order does not empower the
Adjudicator to impose the stand alone sanction of withholding passport
services, the decision will be set aside and remitted for a redetermination.
While I have concluded that the decision must be set aside, but for the
Applicant’s conduct during the investigation, the matter may well have been
resolved at that stage. Accordingly, in the exercise of my discretion, no
costs will be awarded to the Applicant.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1. The application
for judicial review is allowed, the November 6, 2007 decision is set aside, and
the matter is remitted for redetermination by a different Adjudicator.
2. No costs are
awarded.
“Dolores
M. Hansen”
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