Date: 20110908
Docket: T-1366-10
Citation: 2011 FC 1061
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, September 8, 2011
PRESENT: The Honourable Mr. Justice Scott
BETWEEN:
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FATEH KAMEL
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
MINISTER OF FOREIGN AFFAIRS
PASSPORT CANADA
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Respondents
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
On April 6, 2001,
the Tribunal de Grande Instance de Paris convicted the applicant, a Canadian
citizen, as follows:
[translation]
. . .
FINDS Fateh KAMEL
GUILTY of PARTICIPATION IN A CRIMINAL ASSOCIATION FOR THE PURPOSE OF PREPARING
AN ACT OF TERRORISM (acts committed between 1996 and 1998, in ROUBAIX (North)
and in French territory as well as in CANADA, TURKEY, BOSNIA, BELGIUM and ITALY),
COMPLICITY in FORGING AN ADMINISTRATIVE DOCUMENT ATTESTING TO A RIGHT, AN IDENTITY
OR A CAPACITY (acts committed during 1996, in ROUBAIX (North) and in French
territory as well as in CANADA, TURKEY, BOSNIA and BELGIUM) and COMPLICITY in USING
A FORGED ADMINISTRATIVE DOCUMENT ATTESTING TO A RIGHT, AN IDENTITY OR A
CAPACITY (acts committed during 1996, in ROUBAIX (Nord) and in French territory
as well as in CANADA, TURKEY, BOSNIA and BELGIUM).
With the
circumstance that the offence set out above was in principal or related connection
with an individual or collective undertaking the purpose of which is to seriously
disturb public order through intimidation or terror.
SENTENCES HIM TO
A TERM OF IMPRISONMENT OF EIGHT YEARS.
ORDERS THAT HE
BE HELD IN DETENTION.
Having regard to
articles 422‑4 and 131‑30 of the Penal Code, orders that he be
PERMANENTLY BANISHED FROM FRENCH TERRITORY.
. . .
[2]
Since he
was released and returned to Canada
in January 2005, the applicant has been trying, without success, to obtain
a Canadian passport. This is why he filed an application for judicial review
under subsection 18.1(1) of the Federal Courts Act (RSC 1985,
c F‑7) and for remedy under subsection 24(1) of the Canadian
Charter of Rights and Freedoms, Part I of the Constitution Act,
1982, being Schedule B to the Canada Act (UK), 1982, c 11
(Charter). The applicant is challenging the
decision by Canada’s Minister of Foreign Affairs and the federal agency of
Passport Canada (Passport Canada) dated July 15, 2010, to refuse to issue
him a passport for reasons of national security on the basis of
section 10.1 of the Canadian Passport Order, SI/81‑86, as
amended by the Order Amending the Canadian Passport Order, SI/2004‑113
(Order).
I. Facts
[3]
The applicant has been a
Canadian citizen since January 27, 1993. He was born in Algeria in 1960
and immigrated to Canada in 1987.
[4]
In
May 1999, the applicant was arrested in Jordan, then extradited to France,
where he was convicted for his [translation]
“role as principal organizer of international networks determined to prepare
attacks and procure weapons and passports for terrorists acting throughout the
world” (Tribunal de Grande Instance de Paris, case No 9625339012, judgment
dated April 6, 2001, page 86).
[5]
After
serving half of his eight‑year prison sentence, the applicant was released. Passport Canada
then issued him a passport valid only for his return trip. He therefore returned to Canada in January 2005.
[6]
On
June 13, 2005, the applicant applies for a new passport at the Passport
Canada office in Montréal. On December 1, 2005, the Minister refused, under
section 10.1 of the Order, to issue him a passport.
[7]
The
applicant then files an application for leave and for judicial review on the
grounds that the principles of procedural fairness had been breached and that
section 10.1 of the Order violates his rights guaranteed by
sections 6, 7 and 15 of the Charter.
[8]
On
March 13, 2008, Justice Noël of the Federal Court allows the application
for judicial review in part. He concludes, first, that the principles of procedural
fairness had been breached and, second, that section 10.1 of the Order
infringes the applicant’s mobility rights guaranteed by subsection 6(1) of
the Charter. According to Justice Noël, this
infringement is not justified under section 1 of the Charter. Consequently, he does not rule on the application of
sections 7 and 15 of the Charter (Kamel v Canada (Attorney General), 2008 FC 338, [2009] 1 FCR 59
[Kamel 2008]).
[9]
Justice
Noël declares that section 10.1 of the Order is invalid and gives the Governor
General in Council six months to rewrite section 10.1 of the Order
and make a new order. The judge sets aside the Minister’s decision dated
December 1, 2005, to refuse to issue the applicant a passport, but also refuses
to make an order compelling the Minister to issue the requested passport.
[10]
The
Attorney General of Canada (AGC) files an appeal. The appeal is essentially
limited to the issue of the constitutional validity of section 10.1 of the
Order with regard to sections 1 and 6 of the Charter, since the AGC
admitted that the principles of procedural fairness had been breached.
[11]
On
January 23, 2009, the Federal Court of Appeal allows the AGC’s appeal and
sets aside Justice Noël’s decision in part (Kamel v Canada (Attorney
General), 2009 FCA 21, [2009] 4 FCR 449 [Kamel 2009]). In its decision,
the Federal Court of Appeal states that section 10.1 of the Order infringes
subsection 6(1) of the Charter, but that this infringement can be
justified under section 1 of the Charter.
[12]
The
applicant then applies for leave to appeal to the Supreme Court of Canada.
[13]
On
February 10, 2009, the applicant files another passport application. Passport Canada
informed him that this new application would not be processed immediately because
the time for filing an application for leave to the Supreme Court of Canada had
not yet expired.
[14]
In a letter
dated February 26, 2009, Passport Canada informs the applicant that his passport
application dated February 10, 2009, would not be processed because
Justice Noël’s decision still stands. This decision states that the applicant’s file
must be re‑examined. As a result, the
Minister must deal with the passport application dated June 13, 2005.
[15]
On
April 3, 2009, the applicant formally demands that Passport Canada issue
him a passport.
[16]
In a letter
dated April 24, 2009, the Department of Justice Canada confirms to the applicant that Passport
Canada intends to process his passport application.
[17]
In a
subsequent letter dated April 27, 2009, Passport Canada requires the applicant to complete and
file a new passport application form. Passport Canada’s policies and procedures
require that the passport application form not predate the review of the file
by more than one year.
[18]
On
May 5, 2009, the applicant files the new form.
[19]
In a letter
dated July 27, 2009, Passport Canada notifies the applicant that his eligibility for a passport is
being investigated under section 10.1 of the Order. The letter
specifies that the applicant’s criminal conviction by the Tribunal de Grande
Instance de Paris had triggered Passport Canada’s investigation. The applicant is invited to
file all additional facts, mitigating information and corrections to inaccurate
information which could be relevant.
[20]
On
August 20, 2009, the Supreme Court of Canada denies the applicant’s leave
to appeal.
[21]
On
December 23, 2009, the applicant files an application for leave and for
judicial review against the AGC and Passport Canada for a declaratory judgment and remedy
under the Charter (file number T‑2151‑09 of this Court).
[22]
On
January 14, 2010, Passport Canada notifies the applicant that his file has been given to the
Minister. The applicant is also given a copy of the first draft of
the recommendation to the Minister. The
applicant is asked to provide all additional facts, mitigating information and
corrections to inaccurate information which could have a bearing on Passport Canada’s recommendation to the Minister.
[23]
On
March 5, 2010, the applicant replies to Passport Canada. He points out that the first draft of the
recommendation to the Minister left out certain important facts in his favour.
[24]
On
April 7, 2010, the applicant receives a copy of the second draft of the
recommendation to the Minister which Passport Canada prepared after considering
the information he had sent the agency in March. This second draft addresses
the points raised by the applicant in response to the first draft. Passport Canada again asks him to file all additional facts that could be
relevant.
[25]
On
April 19, 2010, the applicant responds to the second draft and states that
this draft still fails to take into account the comments made in response to
the first draft.
[26]
On
June 16, 2010, Passport Canada
gives the Minister its recommendation that he refuses, under section 10.1
of the Order, to issue a passport to the applicant. In support of Passport Canada’s negative recommendation, the Minister
receives a complete file containing all of the information relied on by the
agency in making its recommendation.
[27]
In a letter
dated June 17, 2010, the applicant is notified that, following a review of
all of the information in his file, including his written representations of
March and April 2010, Passport Canada sent his file to the Minister and recommends that the Minister
refuse to issue him a passport.
This final recommendation also contains the applicant’s
comments in response to the second draft.
[28]
On June 17,
2010, the Minister makes his decision. He refuses, under section 10.1 of the
Order, to issue a passport to the applicant. The
applicant is informed of the decision in a letter dated July 15,
2010.
[29]
On
July 28, 2010, the Minister’s decision and the French translation of that
decision are sent to the applicant.
[30]
Following
the Minister’s decision, the Court concludes, on July 28, 2010, that the
application for judicial review in file T‑2151‑09 is moot. As a result, the
Court does not rule on that application.
[31]
On
August 25, 2010, the applicant files a notice of application for judicial
review of the decision to refuse him a passport.
[32]
This is the
application under consideration by the Court.
II. Issues
[33]
The issues are as
follows:
1.
What
is the appropriate standard of review for decisions made by the Minister under
section 10.1 of the Order?
2.
Were the
principles of procedural fairness breached?
3. Were the applicant’s constitutional rights guaranteed by
section 6 of the Charter violated by the investigative process, Passport
Canada’s recommendation and the Minister’s decision to refuse to issue him a
passport?
4. Were the applicant’s constitutional rights guaranteed by
section 7 of the Charter violated by the investigative process, Passport
Canada’s recommendation and the Minister’s decision to refuse to issue him a
passport?
5. Were the applicant’s constitutional rights guaranteed by
section 8 of the Charter violated by the investigative process, Passport
Canada’s recommendation and the Minister’s decision to refuse to issue him a
passport?
6. If so, are those violations justified under
section 1 of the Charter?
7. Should the Court make a declaratory judgment stating that
the Minister of Foreign Affairs and Passport Canada infringed the applicant’s
rights guaranteed by sections 6, 7 and 8 of the Charter?
8. Given the violation of the applicant’s rights as
guaranteed by sections 6, 7 and 8 of the Charter, should the Court order
Passport Canada to issue a passport to the applicant as relief under
subsection 24(1) of the Charter?
Relevant legislation
[34]
The
relevant legislation is reproduced in the Appendix to these reasons.
1. What is
the appropriate standard of review for decisions made by the Minister under
section 10.1 of the Order?
Applicant’s submissions
[35]
The
applicant has not submitted any arguments on this issue.
Respondents’ submissions
[36]
The
respondents submit that paragraphs 57 to 61 of Kamel 2008
establish that, given the specialized expertise of the decision‑maker,
the subject matter of the Order, the nature of the question to be decided and
the fact that the power to be exercised is discretionary, the Court must apply
the reasonableness standard, a standard commanding considerable deference in
its application.
Analysis
[37]
First, the
Court wishes to reiterate that the standard applying to questions of fact is
the reasonableness standard. The Court agrees entirely with Justice Noël’s position in
this same case (Kamel 2008), which he expressed as follows in his
decision:
[59] The specialized expertise of the decision maker in
these cases, the subject‑matter of the Order and the decision maker’s
concerns regarding national and international security are all factors that
plainly suggest that the decision maker should be given wide discretion and
considerable deference. In these cases, the courts must exhibit restraint. In
order to decide these questions, there must be specialized knowledge of the
subject and of Canada’s commitments in similar circumstances, both nationally
and internationally, and of the national security situation.
[38]
As for the issues
concerning the duty of procedural fairness and violations of Charter rights,
those are questions of law requiring application of the correctness standard (Kamel 2008
at paragraph 62).
2. Were
the principles of procedural fairness breached?
Applicant’s submissions
[39]
The
applicant contends that, for the reasons set out below, the principles of
procedural fairness were breached in his file.
Failure to mention favourable
information
[40]
In the case
at bar, the applicant contends that the respondents fail, in their
recommendation to the Minister, to mention a number of relevant pieces of information
favourable to the applicant, specifically:
- The applicant is not
subject to section 9 of the Order contemplating refusal to issue a
passport to an applicant, a fact not disputed by Passport Canada.
- All of the previous
passports issued to the applicant were lawfully renewed or replaced, a
fact acknowledged by Passport Canada.
- The 2005 report by the
Canadian Security Intelligence Service [CSIS] does not identify the
applicant as an individual who is a danger to national security, a fact
and an item of evidence on which Passport Canada is silent in its
recommendation to the Minister. That fact was already known by Passport Canada following the application
for judicial review.
- The applicant is not the
subject of any legal restriction on grounds of terrorism or a danger to
the national security of Canada imposed either under the Anti‑terrorism
Act or the Criminal Code or by a court order. That is a
fact and an item of evidence on which Passport Canada is silent in its
recommendation to the Minister.
- The applicant is not on a
Canadian terrorist list, a fact that Passport Canada in no way disputes.
- The applicant is not on an
international terrorist list, a fact that Passport Canada in no way
disputes.
- The French law under which
the applicant was convicted in France has received harsh criticism by the
courts in Canada and in France. The following is stated in France v
Ouzchar, [2001] OJ No 5713 (QL) [Ouzchar]:
21 In terms of the strength of the case, I am compelled to say that
I find the manner in which the charges against the defendant were proceeded
with in France to be highly disturbing. While there may be an explanation
forthcoming in the fullness of time, on the record before me it is inexplicable
why notice of the charges or of the trial was not given to the defendant.
22 Further, the information before me regarding the offences is
contained entirely in the judgment of the High Court of Paris. While I do not
mean to be critical because I do not know the usual practice of that court in
terms of what normally is included in a judgment, I must say that the judgment
is long on generalities and short on specifics as to exactly the events and
activities of this defendant in respect of the offences with which he was
charged.
23 While I appreciate that certain telephone numbers were found in
the defendant’s possession and that certain telephone calls were either placed
from the defendant’s telephone or received at his telephone number, that
evidence by itself would appear to fall considerably short of what would be
considered necessary in this court for a conviction on these offences beyond a
reasonable doubt. There is no information provided regarding the specifics of
any discussions that took place between the defendant and any of the other
individuals or the specifics of any telephone calls that were intercepted
between the defendant and any of the other individuals or any other similar
direct evidence of inculpatory behaviour by the defendant.
. . .
25 . . . I adopt the approach of Mr. Justice Green in
R. v. Parsons (1997), 124 C.C.C. (3d) 92 (Nfld. C.A.) that the court
should consider the matter from the point of view of a reasonably informed,
right thinking member of the community, cognizant of the presumption of
innocence and the notion that an accused person should not be deprived of
liberty without a sufficient legal basis.
- No new facts or
information about the applicant has been entered in Passport Canada’s file since the Tribunal
de Grande Instance de Paris delivered its judgment in 2001 (pages 1 and
6 of the recommendation).
- The applicant’s criminal
record does not establish that it is necessary, for national security, to deny
him his passport. In Thompson v Canada (Minister of Citizenship and
Immigration), [1996] FCJ No 1097 (QL), (1996), 41 Admin LR (2d) 10 at
paragraph 19, the Court wrote as follows:
19 I am satisfied that although there may be no
need to impose formal guidelines on the respondent regarding what constitutes a
danger to the public, that phrase must have some meaning in itself; it must
constitute more than mere duplication of the conviction for a serious offence
element of the legislative scheme. I am satisfied that Parliament did not intend for danger
opinions to have no meaning, and that in order for the respondent to form an opinion
pursuant to subsection 70(5), the fact of a conviction alone is an
insufficient basis; the circumstances of each case must, over and above the
conviction, indicate a danger to the public. By
this, I do not wish to be taken as indicating that there is no instance where a
danger opinion pursuant to subsection 70(5) could be properly issued where
a person has only one conviction; I simply find that there must be
circumstances in the case additional to a single conviction that indicate a
danger to the public. There may very well be cases where the circumstances
surrounding a single conviction point to a danger to the public.
. . .
- Our society has no place
for double punishment or discrimination on the basis of criminal record, which
the respondents have not taken into account. The respondents
acknowledge that the applicant’s file contains no new facts that have come
to light since the Tribunal de Grande Instance de Paris’ decision in 2001
(Quebec (Commission des droits de la personne et des droits de la jeunesse)
v Maksteel Québec Inc, [2003] 3 S.C.R. 228 at paragraph 63).
Failure to provide Passport Canada’s
investigation report
[41]
Furthermore,
the applicant contends that he never received Passport Canada’s investigation
report (applicant’s affidavit at page 28 of the Applicant’s Record), whereas,
according to the declaration in Kamel 2008, that report should have
been disclosed to him. The applicant therefore submits that the respondents are
failing to comply with the Court’s order as regards their duty to act fairly
(see Kamel 2008 at paragraphs 87 to 89).
Breaches of duty to act within a
reasonable time
[42]
The
applicant also submits that the respondents breached the principles of
procedural fairness. In fact, the respondents did not resume processing the applicant’s
passport application within a reasonable time, and the applicant has been denied
a passport since June 2005.
[43]
The
applicant also points out that, in 2008, owing to breaches of procedural
fairness, the Federal Court set aside the Minster’s decision to refuse him a
passport (Kamel 2008). On appeal, the respondents nonetheless acknowledged the
breaches of the principles of procedural fairness. This aspect of the decision was not appealed (since this
ground for appeal was withdrawn on July 9, 2008) (paragraphs 22 to 25
at pages A19 to A24 of the Applicant’s Record).
[44]
The
applicant points out that approximately two years went by following the first
decision until the Minister informed the applicant of the decision to refuse
him a passport.
Factual errors
[45]
The
applicant also submits that the respondents are incorrect to contend that he
was given 30 days to reply to the letter dated July 27, 2009 (page A40 of
the Applicant’s Record), as this is false according to the contents of the
letter from Passport Canada dated July 27, 2009 (pages A36 to A39 of the Applicant’s
Record).
Reasonable apprehension of bias
[46]
The
applicant argues that the sequence of events leading up to Passport Canada’s
final recommendation to the Minister (pages A79 to A90 of the Applicant’s
Record) supports the conclusion of a reasonable apprehension of bias.
Respondents’ submissions
[47]
The
respondents, on the other hand, reply that the principles of procedural
fairness were not breached. The respondents are relying on the decision in Kamel 2008,
in which Justice Noël stated that having regard to the five factors from Baker
v Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 [Baker]),
the principles of procedural fairness are satisfied if:
(a)
the
investigation includes disclosure to the individual affected of the facts
alleged against him or her and all of the information obtained in the course of
the investigation;
(b)
the
investigation informs the individual of the investigator’s objectives and gives
the individual an opportunity to respond fully; and
(c)
the
decision‑maker must have all of the facts necessary in order to make an
informed decision.
[48]
The
respondents therefore submit that the applicant has failed to establish that
the principles of procedural fairness were breached in any way in this case.
(a) The investigation includes disclosure to the
individual affected of the facts alleged against him or her and the information
obtained in the course of the investigation
[49]
The
respondents emphasize that the letter dated July 27, 2009, notifies the
applicant that, on account of the judgment made against him by the Tribunal de
Grande Instance de Paris in 2001, Passport Canada is in the process of
reviewing his eligibility for a passport.
[50]
The
respondents remind the Court that the applicant did not provide any additional
information in the interval between the date he received the letter dated
July 27, 2009, and the date the first draft of the recommendation was sent,
January 14, 2010.
[51]
The
respondents contend that the applicant was informed of all of the relevant
facts and documents from the investigation that form the basis for the
allegations against him when he was sent the drafts of Passport Canada’s
recommendation to the Minister on January 14 and April 7, 2010.
[52]
The
respondents also submit that Passport Canada’s recommendation, given to the
Minister on June 16, 2010, and disclosed to the applicant, contains no new
facts.
(b) The investigation
informs the individual of the investigator’s objectives and gives the
individual an opportunity to respond fully
[53]
The respondents note
that it was open to the applicant to file further information and arguments in
response to the two drafts of Passport Canada’s recommendation and that the
applicant exercised that right.
(c) The decision‑maker
must have all of the facts necessary in order to make an informed decision
[54]
The
respondents deny the applicant’s allegation that the recommendation is silent
on the points raised in his replies of March and April 2010. The
recommendation to the Minister addresses the additional information and
arguments presented by the applicant, which are appended to the recommendation.
In this regard, the respondents remind the Court of
the contents of the file sent to the Minister, which is found, more specifically,
at Tab B of the Respondents’ Record, at pages 1347 to 1905.
[55]
The
respondents submit that the Minister had all of the relevant information and
documents required to make an informed decision.
[56]
The
respondents further state that, in the circumstances, given the nature of the
decision and the legal framework through which it was made and taking into
account the process followed by Passport Canada, the applicable principles of
procedural fairness were observed.
Analysis
[57]
To establish
the scope of the duty of procedural fairness in this case, the Court is relying
on Justice Noël’s decision in Kamel 2008, especially since both
parties agree on this element of the decision. In this regard, it is
useful to reproduce the paragraphs of the judgment setting out the main
principles that are applicable:
[66] The
decision of the Supreme Court in Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, and more specifically the comments we read at
paragraph 115, offers some assistance in identifying those guarantees:
What is required
by the duty of fairness—and therefore the principles of fundamental justice—is
that the issue at hand be decided in the context of the statute involved and
the rights affected: Baker, supra, at para. 21; Knight v.
Indian Head School Division No. 19, [1990] 1 S.C.R. 653, at p. 682; Old St. Boniface Residents
Assn. Inc. v. Winnipeg (City), [1990] 3 S.C.R. 1170, per
Sopinka J. More specifically, deciding what procedural protections must be
provided involves consideration of the following factors: (1) the nature of the
decision made and the procedures followed in making it, that is, “the closeness
of the administrative process to the judicial process”; (2) the role of the
particular decision within the statutory scheme; (3) the importance of the
decision to the individual affected; (4) the legitimate expectations of the
person challenging the decision where undertakings were made concerning the
procedure to be followed; and (5) the choice of procedure made by the agency itself:
Baker, supra, at paras. 23‑27. This is not to say that
other factors or considerations may not be involved. This list of factors is
non‑exhaustive in determining the common law duty of fairness: Baker,
supra, at para. 28. It must necessarily be so in determining the
procedures demanded by the principles of fundamental justice.
[67] Having
regard to factors 1 and 2, the Court finds first that the decision to
refuse or revoke a passport is a discretionary decision. However, the nature of
the procedures leading to that decision are in the nature of an investigative
proceeding. In the case before us, the CPO carried out an investigation, and
invited Mr. Kamel to make comments; it then made a recommendation to the
Minister. Because the consequences of denying a passport are significant, the
Court concludes that evaluating and weighing the national security of Canada and other countries, having regard
to the applicant’s rights and obligations, calls for the application of
particularly stringent procedural guarantees, which must include real
participation by the applicant in the investigative process.
[68] In this
case, the Minister had to decide whether to issue a passport to a Canadian
citizen, and an administrative investigation was conducted. As we shall see,
denial of a passport application prevents a Canadian citizen from travelling
throughout the world. Accordingly, the decision is an important one for the
person who is denied a passport. As a result, the investigation leading to the
recommendation to be made to the Minister must include full participation by
the individual affected. Procedural guarantees are therefore necessary: a
passport applicant must be able to know exactly what the allegations against
him or her are and what the information collected in the course of the
investigation is, and must be able to respond to it completely, so that the
report submitted to the Minister includes his or her comments.
[69] The third
factor requires that the importance of the right affected be considered. As
noted earlier, Mr. Kamel’s interest in obtaining his Canadian passport is
an important one, not only because he needs it in order to travel, but also
because a passport is an identity document that gives its holder the protection
of the other country, at Canada’s request. Mobility rights are facilitated by
this travel document. As the Supreme Court said in Suresh, above, at
paragraph 118: “The greater the effect on the life of the individual by
the decision, the greater the need for procedural protections to meet the
common law duty of fairness and the requirements of fundamental justice under
s. 7 of the Charter.” Denial of a Canadian passport has major
consequences both personally and financially. No elaboration on that point is
needed. As a result, this factor calls for adherence to stronger procedural
guarantees to be observed in applying section 10.1 of the Order.
[70] The fourth
factor involves assessing the legitimate expectations of the person challenging
the decision where undertakings were made concerning the procedure to be
followed. In this case, it was reasonable for Mr. Kamel to expect that the
CPO would inform him of their concerns and give him a real opportunity to
respond to them. Given the history of passport renewals and the fact that the CPO
had issued him a special passport for him to return to Canada on January 19,
2005, on the one hand, and his offer to meet with CPO officers, on the other,
it is reasonable that the applicant would have had certain legitimate
expectations in respect of the investigative process.
[71] For the fifth factor, the
Court has to examine the choice of procedure made by the agency. The Minister
has to make a decision based on the information submitted by the investigator.
In this case, the information consisted entirely of what was in the CPO’s
report, and the CPO has an obligation to guarantee that its investigation is
likely to give the Minister all the information needed for making an informed
decision. The procedure followed did not include real participation by the applicant,
and that has an impact on the content of the report.
[72] Having
regard to the five factors, the Court concludes that the CPO had an obligation
to follow a procedure that was in compliance with the principles of procedural
fairness, meaning fairness to the applicant. This does not mean that a right to
a hearing would automatically be a necessary part of the investigation (for
example, where the passport applicant’s credibility is in issue). It is
sufficient if the investigation includes disclosure to the individual affected
of the facts alleged against him and the information collected in the course of
the investigation and gives the applicant an opportunity to respond to it fully
and informs him of the investigator’s objectives; as well, the decision‑maker
must have all of the facts in order to make an informed decision. Did the CPO
adhere to those principles in conducting the investigation?
[58]
In his decision,
Justice Noël criticizes Passport Canada’s omission to
provide the applicant with a copy of the CSIS report that served as a basis for
the decision to recommend that the applicant be refused a passport. As Justice
Noël points out, at paragraph 19, “In the CPO document that accompanied
the recommendation to the Minister, there is no specific reference to the CSIS
document. However, it is apparent from reading the CPO report to the Minister
that it was a determining factor.”
[59]
At
paragraph 83 of his decision, Justice Noël also takes into account the
fact that the investigation file does not objectively reflect the applicant’s
position. Justice Noël emphasizes that this report does not present
the Minister with both parties’ positions, but instead sets out the position of
Passport Canada. He also states that “[a]
report of this nature must present the parties’ positions in a factual and
balanced way”.
[60]
In this
case, the Court finds that the principles of procedural fairness were not
breached.
[61]
It is clear,
from reading the documents in the file, that Passport Canada takes the above
comments by Justice Noël into account. In addition, the report containing the
recommendation to the Minister integrates all of the applicant’s
representations. Certainly, counsel for the
applicant submits that the report leaves something to be desired in terms of
the wording used to convey the applicant’s representations that no charges have
been laid against him since his conviction in France, in 2001. However, from reading the
recommendation to the Minister, this Court is satisfied that the opposite is
true, since the recommendation reproduces verbatim excerpts from the letter to
Passport Canada, dated April 19, 2010,
from the counsel for the applicant. Indeed, the recommendation states, [translation] “In her reply to the first
draft of the recommendation made under section 10.1 of the Canadian
Passport Order concerning national security, Mr. Kamel’s legal
advisor, Johanne Doyon, states that Mr. Kamel has never been investigated
under section 9 of the Order, is not on a list of persons considered to be
Canadian or international terrorists, has never been arrested for or convicted
of any crime since his release in 2004 and has lawfully replaced all of the
passports issued in his name”.
[62]
Furthermore,
the Court notes that the applicant did indeed have access to the investigation
report prepared by Passport Canada
and was given the opportunity to comment on it. At paragraph 99 of his
memorandum, the applicant contends to the contrary. However, on written cross‑examination on his
affidavit, more specifically at page 38 of the Applicant’s Record, the
applicant gives the following answer to a question:
[translation]
I am referring to the investigation report prepared by
Passport Canada’s Investigation and Entitlement Review Section,
Security Bureau and/or Investigations Division as part of their investigation
of me. The investigation
report I refer to in my affidavit may also include all reports about me prepared
by the Canadian Security Intelligence Service and disclosed to Passport Canada, as the case may be.
[63]
Aside from
Passport Canada’s investigation report, there
are no reports in the file. The Court notes that the applicant did in fact have access
to Passport Canada’s investigation report, since
he states, many times in his written submissions, that this report does not
identify him as posing a danger to national security:
[translation]
The 2005 CSIS report did not identify him as a danger to
national security, a fact and item of evidence overlooked in the federal agency’s
recommendation to the Minister despite the fact that Passport Canada was
already in possession of the report as part of the judicial review in T‑100‑06
(Kamel c Canada, 2008 CF 338, paras. 19, 23, 79 and 85) . . .
[64]
What is
more, the following documents are included in full in the appendices to the recommendation
to the Minister: counsel for the applicant’s letters to Passport Canada dated
March 4 and 16, 2010, and a complete copy of the decision in Ouzchar,
above, referred to by the applicant. The sections of Canada’s Criminal Code referred to by
counsel for the applicant are also found in the appendices to the
recommendation. Considering this material evidence, the applicant’s
contention that the principles of procedural fairness were breached cannot be
accepted because the file given to the Minister contained all of the applicant’s
representations.
[65]
Regarding
the time that elapsed before the Minister made his decision, although the Court
sympathizes with the applicant, it cannot find that there was undue delay in
this case. It is true that the decision of the Federal Court of Appeal
is dated January 23, 2009; however, this Court finds it reasonable that
Passport Canada waited until the Supreme Court made its decision on the
application for leave to appeal. It was not
until August 2009 that the Supreme Court denied the application for leave
to appeal. The Court also notes that on
January 14, 2010, approximately five months later, Passport Canada sent the applicant the first draft of its
recommendation. Considering the particular nature of the file, the Court
cannot characterize the delay as “unreasonable”. Moreover, following the first communication by Passport Canada, the time between communications shortens
considerably.
[66]
As for the
applicant’s argument concerning Passport Canada’s errors of fact, more specifically
regarding the reference allegedly made in the letter dated July 27, 2009,
to a 30‑day time limit for the applicant to send in his representations,
the Court notes that the respondents do not specify the time limit in that
letter. This requirement is instead found in the appendices to the
letter delivered by hand to the applicant. In the
letter dated January 14, 2010, the respondents merely state that [translation] “the applicant had
30 days to reply or provide relevant information”. In the circumstances, it is difficult for the Court to
conclude that the respondents made inaccurate statements. However, the Court is of the opinion that the respondents
had to specify the time the applicant had to reply if he then wanted to object
to such a time limit. Such an error cannot provide
a valid basis for asserting an apprehension of bias, especially since it did
not result in any harm to the applicant, as, moreover, he has acknowledged
through his counsel.
[67]
For these
reasons, the Court finds that the principles of procedural fairness applicable
in this file were not breached.
3. Were
the applicant’s constitutional rights guaranteed by section 6 of the
Charter violated by the investigative process, Passport Canada’s recommendation and the Minister’s decision to
refuse to issue him a passport?
Applicant’s submissions
[68]
The
applicant states that the case law and doctrine have established that refusal
to issue a passport has a direct impact on the mobility rights guaranteed by
section 6 of the Charter.
Such a measure prevents citizens from freely entering
or leaving their country (see Kamel 2008 at paragraph 113).
[69]
The
applicant once again stresses that the right of access to a passport is also
acknowledged in the case law in various contexts. This access is considered a
direct manifestation of the right guaranteed by section 6 of the Charter and
section 12 of the International Covenant on Civil and Political Rights
(International Covenant).
[70]
The
applicant therefore argues that the respondents are refusing, without
reasonable justification, to issue him a passport, thus violating his rights
guaranteed by subsection 6(1) of the Charter.
Respondents’ submissions
[71]
The
respondents acknowledge that a decision to refuse to issue a passport to a
Canadian citizen violates the citizen’s rights guaranteed by
subsection 6(1) of the Charter.
Analysis
[72]
Given the
statements of the Federal Court of Appeal in this case, the Court acknowledges
that the decision to refuse to issue a passport to the applicant violates his
rights guaranteed by subsection 6(1) of the Charter.
4. Were the applicant’s
constitutional rights guaranteed by section 7 of the Charter violated by
the investigative process, Passport Canada’s recommendation and the Minister’s decision to
refuse to issue him a passport?
Applicant’s submissions
[73]
The
applicant asserts that the sections of the Order at issue in the case at bar,
which allow for a passport to be refused, infringe general liberty and the security
of the person.
[74]
According
to the applicant, since 2005, his mobility and liberty rights guaranteed by
sections 6 and 7 of the Charter have been unfairly infringed. As an example,
he notes that the refusal to issue him a passport prevents him from travelling,
which he must do to develop and work in the import business he intends to set
up with his brother. This refusal also denies
him the opportunity to visit his family in Algeria and travel with his spouse and son for
leisure vacations. Last, he cannot exercise complete, unfettered liberty.
[75]
The
applicant also contends that neither the Minister’s decision nor the process
followed by Passport Canada
satisfies the requirements of the principles of fundamental justice. Any decision
must turn upon the facts and the law. It must
be made without bias and by applying an appropriate standard of proof and be consistent
with all Charter values, including the presumption of innocence and good faith
and the right to privacy.
[76]
The
applicant also submits that the Minister’s decision and the process followed
are inconsistent with the principles of fundamental justice, which ensure that
everyone subject to the law has the right to a hearing by an independent and
impartial tribunal. The applicant alleges having been denied a full and
impartial hearing of his case in accordance with the principles of fundamental
justice within the meaning of section 7 of the Charter. He also relies on the International Covenant and paragraph 2(e)
of the Canadian Bill of Rights (SC 1960, c 44). The applicant asserts that Passport Canada and the Minister
of Foreign Affairs do not constitute an “independent decision‑maker” having jurisdiction to
deprive him in
this manner of his most fundamental rights.
Respondents’ submissions
[77]
The
respondents point out that, for the purposes of section 7 of the Charter,
the applicant must prove, first, that a deprivation of his right to life,
liberty and security of the person has occurred and, second, that the
deprivation is not in accordance with the principles of fundamental justice (Chaoulli
v Quebec (Attorney General), 2005 SCC 35, [2005] 1 S.C.R. 791 at paragraphs 29
and 30 [Chaoulli]).
[78]
In the case
at bar, the respondents submit that the applicant has failed to meet his burden
of proving that his constitutional rights guaranteed by section 7 of the
Charter were infringed (Mahjoub (Re), 2009 FC 988, at paragraphs 46
and 47).
[79]
The
respondents further contend that the applicant’s allegations also fail to show
that the Minister’s decision results in an infringement of the right to
liberty. The rights claimed by the applicant are not among the “basic
choices going to the core of what it means to enjoy individual dignity and
independence” (Godbout v Longueuil (City), [1997] 3 S.C.R. 844 at
paragraph 66 [Godbout]). Furthermore,
the respondents point out that the scope of the Constitution cannot be expanded
to protect any activity that a person decides to define as essential to his or
her lifestyle.
[80]
Regarding
the allegations concerning the applicant’s occupational choices, the respondents
note that it is clearly established that section 7 of the Charter does not
protect economic rights. This section does not protect the right to choose a career
or the choice to transact business whenever one wishes (Chaoulli, at
paragraphs 200 to 202).
[81]
Furthermore,
the respondents emphasize that the evidence presented by the applicant to
establish that he was prevented from travelling for leisure vacations is
insufficient to show that this is a violation of his rights guaranteed by
section 7 of the Charter (Khadr v Canada (Attorney General), 2006
FC 727, [2007] 2 FCR 218 at paragraphs 73 to 75 [Khadr]).
[82]
Last, the
respondents submit that the fact that there is a specific provision in the
Charter applicable to the facts—in this case subsection 6(1) of the
Charter, which encompasses the right to a passport—bars all recourse to other,
more general provisions of the Charter.
Analysis
[83]
The Court
agrees with the respondents’ argument that the rights claimed by the applicant
are not among the “basic choices”. The Constitution does not protect economic
rights or confer a right to travel for leisure vacations. In addition, the Applicant’s Record contains no specific
evidence showing that the issuance of a passport is essential for him to start
up his import business; in any event, the Constitution does not protect
economic rights. Furthermore, as Justice
Phelan wrote in Khadr at paragraph 73,
Liberty
includes more than freedom from physical restraint; it includes personal
autonomy. It is fairly
arguable that if choosing where to establish one’s home is a quintessentially
private decision going to the very heart of personal or individual autonomy, as
held in Godbout v. Longueuil (City), [1997] 3 S.C.R. 844 at 893, so too
is the choice of where to go either in or outside Canada.
[84]
As well,
procedural fairness does not always require that an oral hearing be held (Baker,
above, at paragraph 33; Suresh v Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3 at
paragraph 121 [Suresh]. The Court is satisfied that, in this case, it
was not necessary to hold an oral hearing. The
applicant had the opportunity to present his entire case because the process
allowed for each of his arguments to be incorporated into the file given to the
Minister. In those circumstances, there can be
no breach of the principles of procedural fairness.
5. Were the applicant’s
constitutional rights guaranteed by section 8 of the Charter violated by
the investigative process, Passport Canada’s recommendation and the Minister’s decision to
refuse to issue him a passport?
Applicant’s submissions
[85]
The
applicant submits that section 8 of the Charter gives everyone the right
to be secure against unreasonable search and seizure (R v Morelli, 2010
SCC 8, [2010] 1 S.C.R. 253). In this case, he states that Passport Canada had no right
to delve into or meddle with his private life, and even less of a right to do
so by investigating into an individual’s actions, beliefs and lawful
associations, which are among the fundamental freedoms guaranteed by
section 2 of the Charter, or to do so because the applicant allegedly had
a “dubious reputation”.
Respondents’ submissions
[86]
The
respondents state that the applicant is simply making a general allegation that
Passport Canada’s investigation violates his rights guaranteed by
section 8 of the Charter, without introducing any actual evidence to
support his allegation.
[87]
The
respondents further submit that in an investigation conducted under
section 10.1 of the Order, Passport Canada may take into consideration the applicant’s
actions, beliefs and associations without infringing the applicant’s right to
privacy. The respondents also submit that there is no evidence in
the record establishing that Passport Canada did in fact take into
consideration the actions, beliefs and associations of Mr. Kamel.
[88]
The
respondents contend that, in this case, Passport Canada opened an investigation into the
applicant’s eligibility for a passport and took into account the French
judgment, which is a public document. The respondents further state that the
responsibility the Order confers on Passport Canada entails, by necessary
implication, the power to verify the truthfulness of the information provided
and, if necessary, to investigate the applicants’ eligibility to receive
Passport Canada’s services.
[89]
The
respondents remind the Court that section 10.1 of the Order is aimed at
ensuring that the government meets its objectives with respect to fighting
international terrorism, honouring Canada’s commitments in that area and maintaining the good reputation of
the Canadian passport. The respondents therefore conclude that Passport Canada’s
investigation of the applicant is consistent with achieving those ends and
strikes the appropriate balance between those objectives and the applicant’s
right to privacy (Kamel 2009 at paragraphs 50 and 51; R v
Rodgers, 2006 SCC 15, [2006] 1 S.C.R. 554 at paragraph 44).
Analysis
[90]
The Court
notes that the applicant did not file any evidence to support his allegation
that the investigation violates his rights protected by section 8 of the
Charter. Moreover, the file accompanying the recommendation to the
Minister does not contain any objective evidence establishing that Passport
Canada took into account the applicant’s actions, beliefs and associations.
Passport Canada’s decision is predicated exclusively on
the judgment by the Tribunal de Grande Instance de Paris. In the
circumstances, the Court cannot conclude, as the applicant alleges, that his
right to privacy was infringed. The only
evidence supporting the recommendation to the Minister is public; it is the
judgment by the Tribunal de Grande Instance de Paris.
[91]
Furthermore,
the very process of issuing a passport automatically entails fact checking and
a security assessment for all Canadian citizens. The applicant cannot be
exempted from this rule, especially since there is in this case a public
document, a judgment, bearing specifically on an element that it is essential
to take into consideration given Passport Canada’s obligations under
section 10.1 of the Order, namely with regard to fighting terrorism,
honouring Canada’s commitments in that area and maintaining the good reputation
of the Canadian passport.
[92]
In these
circumstances, the Court cannot find that the applicant’s rights guaranteed
under section 8 of the Charter were violated.
6. If so, are those infringements
justified under section 1 of the Charter?
[93]
The Court declares that
the applicant’s fundamental rights guaranteed by subsection 6(1) of the
Charter were indeed infringed, but this infringement is justified under
section 1 of the Charter for the reasons below.
Analysis framework
[94]
Under section 1 of
the Charter, Charter rights are guaranteed “subject only to such reasonable
limits prescribed by law as can be demonstrably justified in a free and
democratic society”.
The decision is prescribed by law
[95]
This issue
is addressed by part of the decision in Kamel 2009. The Federal
Court of Appeal concluded that section 10.1 of the Order is, in fact, a
law. The Court fully adopts the Federal Court
of Appeal’s analysis, found in paragraphs 20 to 31 of Kamel 2009
and, more specifically, the paragraphs reproduced below, which state that the
language of section 10.1 of the Order is sufficiently precise for it to be
a law within the meaning of section 1 of the Charter.
[20] I adopt the following principles from the teachings of
the Supreme Court of Canada regarding the constitutional invalidity of
statutory or regulatory provisions for vagueness:
(1) The threshold for finding a law vague is relatively
high. State conduct is guided by approximation. The process of approximation
sometimes results in quite a narrow set of options, sometimes in a broader one
(R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606, at
pages 626, 638–639);
(2) A law is unconstitutionally vague if it does not
provide an adequate basis for legal debate and analysis, does not sufficiently
delineate any area of risk or is not intelligible. The law must offer a grasp
to the judiciary. Certainty is not required (Canadian Foundation for
Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4,
[2004] 1 S.C.R. 76, at paragraph 15; Harper v. Canada (Attorney General), 2004 SCC 33, [2004] 1 S.C.R. 827, at paragraph 90);
(3) The courts may use a number of sources to determine
whether the words used may guide a legal debate, always bearing in mind the
intention of Parliament. The courts must first consider the words used in their
legal and social context. They may also refer, inter alia, to
authorities and expert opinions, whether they were expressed before or after
the provision in question was adopted (Canada (Attorney General) v. JTI‑Macdonald
Corp., 2007 SCC 30, [2007] 2 S.C.R. 610, at paragraph 80);
(4) Even if, in a given case, the drafters could have
adopted a more detailed definition, the provision is not constitutionally vague
for that reason;
(5) Some fields, such as international relations and
security, do not lend themselves to precise codification in so far as the
situations envisaged are variable and unpredictable. In that sense, a certain level
of generality and flexibility is necessary to preserve the effectiveness of the
law for the future (Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R.
1031, at paragraph 48; Nova Scotia Pharmaceutical, at
pages 641‑642; Suresh v. Canada (Minister of Citizenship and
Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3, at paragraph 85);
(6) More specifically, with regard to the security of
Canada or national security (in a Canadian context, these terms seem to me to
be interchangeable and I consider the expression “national security of Canada”
to be redundant; in a global context, the expression “national security”
appears to me to be the most widely used), the term “national security of
Canada” serves to guide a legal debate. In Suresh, where the expression “danger
to the security of Canada” was not defined at paragraph 53(1)(b)
[as am. by S.C. 1992, c. 49, s. 43] of the Immigration Act
[R.S.C., 1985, c. I‑2], the Supreme Court of Canada recognized, at
paragraph 85, that the expression was difficult to define and accepted that the
determination of what constitutes such a danger is highly fact‑based and
political in a general sense. The Court nevertheless determined, at
paragraphs 82 and 85–90, that the expression was sufficiently intelligible
to be subject to judicial interpretation, and therefore, to satisfy the
constitutional test for precision.
[21] Section 10.1 must be read in the context of the
nature of the royal prerogative at issue and in the context of the Order
itself, particularly the September 2004 additions of subsections 4(3) and
(4) and section 10.1.
Justified in a free and
democratic society
[96]
The
analysis framework for determining whether a legislative provision is a
reasonable limit to a Charter‑guaranteed freedom or right is set out in R
v Oakes, [1986] 1 S.C.R. 103. Both parties in this case agree on that. The Federal
Court of Appeal words the test as follows in Kamel 2009 at
paragraphs 32 and 33:
[32] The analysis to determine whether a restriction of a
Charter right is justified under section 1 requires that the following two
questions be answered in the affirmative:
(1) is the restriction designed to achieve a sufficiently
important objective?
(2) are the means chosen proportional to the objective?
(The Queen v. Oakes, [1986] 1 S.C.R. 103, at
pages 138‑139; Trociuk v. British
Columbia (Attorney General), 2003 SCC 34, [2003] 1
S.C.R. 835, at paragraph 33.)
[33]
In turn, the second part—proportionality—has what Chief Justice Dickson
describes in Oakes, at page 139, as “three important components”:
‑ the
measure must be rationally connected to the objective: it must be carefully
designed to achieve this objective and be neither arbitrary nor unfair;
‑ the
means chosen to reach the objective should impair as little as possible the
right or freedom in question; and
‑ there
must be a proportionality between the effects of the measure and the objective
sought.
[97]
Justice
Décary of the Federal Court of Appeal adds, at paragraph 35, that “[t]he
standard of proof that the Attorney General must meet is that of the balance of
probabilities, which is established by the application of common sense to what
is known, even though what is known may be deficient from a scientific point of
view (RJR‑MacDonald Inc v Canada (Attorney General), [1995] 3 SCR
199, at paragraphs 63 and 137 [RJR‑MacDonald Inc]).”
[98]
In this case, the analysis
of this question by the Federal Court of Appeal, in Kamel 2009, confines
the debate. In fact, given that this is the same case, the Court must determine
whether the Federal Court of Appeal’s analysis is still relevant to the particular
facts of the case at bar. The Court also notes the judge’s comments in Abdelrazik
v Canada (Foreign Affairs), 2009 FC 580, [2010] 1 FCR 267:
[133]
Therefore, although there is no doubt that section 10.1 of
the Canadian Passport Order has been found to be constitutionally valid
by the Federal Court of Appeal in Kamel, it does not follow that every
refusal of the Minister made pursuant to that section must necessarily also be
constitutionally valid. The issue before the Federal Court of Appeal in Kamel
was limited to whether section 10.1 violated section 6 of the Charter
and, if it did, whether it was justified under section 1. In his judgment,
Justice Décary was careful to note: “I will not comment on other aspects of
this case, and nothing in my reasons shall be interpreted as having an impact
on the decision that the Minister will eventually make after reconsidering
Mr. Kamel’s passport application.” In other words, while the section is valid, the
decision made under it may not be. [Emphasis added.]
[99]
The Court must
therefore undertake a new analysis. The Court must emphasize, however, that the
distinctive feature of this case is that this analysis has already been
conducted for the same applicant in similar circumstances.
(1) Is the restriction designed to achieve a sufficiently important
objective?
[100]
For this first
question, the Court relies on the judgment of the Federal Court of Appeal, at
paragraphs 50 and 51, given that there have been no changes to the aim of
the legislation or in the concerns to do with security and the fight against
terrorism since Kamel 2009:
[50]
I conclude from the evidence that section 10.1 of the Order has both a
broad objective—to contribute to the international fight against terrorism and
to comply with Canada’s
commitments in this area, and a particular objective—to maintain the good
reputation of the Canadian passport.
[51] These objectives are, on their face, sufficiently
important for a measure to be adopted that restricts the right of a Canadian
citizen to enter or leave the country. Moreover, counsel for the respondent
acknowledged at the hearing that if we conclude that section 10.1 of the
Order is sufficiently precise to constitute a law, the intended objective was
sufficiently important.
(2) Are the means chosen
proportional to the objective?
The
rights violation must be rationally connected to the aim of the legislation
Applicant’s submissions
[101]
The applicant states
that the allegations concerning the danger in issuing him a passport because
the international community will no longer have the necessary confidence in
Canadian passports are mere, unproven conjecture related to the objective of
purportedly maintaining the “good reputation” of the Canadian passport. The
applicant submits that this fear alone cannot suffice to establish a connection
between the violation of his rights and the legislative objective.
Respondents’
submissions
[102]
In reply, the
respondents note that satisfying the rational connection test between the
violation of the applicant’s rights and the objective stated in the Order calls
for nothing more than a showing that the legitimate and
important goals of the legislature are logically furthered by the means
government has chosen to adopt. The applicant also points out that if there is
a reasonable basis for believing a rational connection exists between the means
chosen by the government and the purpose of the Order, that may suffice (RJR‑MacDonald Inc, above, at
paragraph 82).
[103]
The respondents contend
that, in this case, the evidence in the record shows that the Minister has a
basis for believing that refusing to issue Mr. Kamel a passport logically furthers
the objectives stated in the Order.
Analysis
[104] In its analysis, at paragraph 56,
the Federal Court of Appeal concludes that “[t]his evidence [Professor Rudner’s
affidavit and the United Nations conventions on terrorism ratified by Canada]
combined with logic, reason and common sense readily establishes a causal
connection between the violation—refusing to issue a passport—and the benefit
sought—maintaining the good reputation of the Canadian passport and Canada’s
participation in the international fight against terrorism”.
[105] The
Court calls attention to paragraph 5 of Fateh Kamel’s case history, which
is included in Passport Canada’s
recommendation to the Minister:
[translation]
Mr. Kamel and 21 other persons are
convicted by the Tribunal de Grande Instance de Paris for their activities in
1996, 1997 and 1998, in a conspiracy to prepare acts of terrorism and, more
specifically, for their involvement in a conspiracy to carry out bomb attacks
of metro stations located in Paris and their involvement in a series of attacks
in Roubaix, in the north of France. In its decision, the French court stated
that, in 1994 and 1995, Mr. Kamel had travelled extensively in Bosnia, in Slovenia, to
Montréal, in Austria and in the Netherlands to consolidate his
position in this terrorist network. In 1996, Mr. Kamel participated in
forging and supplying passports to benefit the terrorist network.
[106] The
applicant’s conviction is for crimes that are inextricably connected to travel
and passport use. It seems to me that the rational connection between the
objective and the rights violation is clearly established. Indeed, there is no
way to isolate the facts leading to the applicant’s conviction and examine
whether they support any sort of connection with the purpose of the Order.
The impugned provision must impair the Charter rights as little as
possible
Applicant’s submissions
[107]
The
applicant submits that section 10.1 of the Order does not satisfy the
minimal impairment test with regard to his rights. Relying on the lack of
concrete evidence in the record, the applicant concludes that it is not
necessary to deny him a passport to meet the national security objectives set
out in the departmental policy.
[108]
At the
hearing, counsel for the applicant argued that there are means to meet the
Order’s stated purpose without infringing the applicant’s rights.
Respondents’ submissions
[109]
The
respondents, for their part, note that the Supreme Court addresses what
constitutes a “minimal impairment” in Multani v Commission scolaire
Marguerite‑Bourgeoys, 2006 SCC 6, [2006] 1 S.C.R. 256. At
paragraph 50 of that decision, the Court calls to mind RJR‑MacDonald
Inc, in which it gave the following definition of the applicable test, that
is, that rights must not be impaired more than necessary:
160 . . . The impairment must be “minimal”, that
is, the law must be carefully tailored so that rights are impaired no more than
necessary. The tailoring process seldom admits of perfection and the
courts must accord some leeway to the legislator. If the law falls within a
range of reasonable alternatives, the courts will not find it overbroad merely
because they can conceive of an alternative which might better tailor objective
to infringement: . . .
[110]
The
respondents also refer to Kamel 2009, in which the Court of Appeal
stressed the following:
[59] Once it is established that the refusal to issue a
passport on the ground of national or international security rationally serves
a sufficiently important objective, it becomes difficult to imagine how the
refusal to issue a passport could, substantially, take place other than in the
manner prescribed by the Order.
[111]
The
respondents state that, in this case, the refusal to issue a passport is
limited to a five‑year period, which does not irreversibly deprive
Mr. Kamel of his right to leave the country, especially since the
applicant may still file an application for a limited validity passport for
urgent or compassionate reasons (Kamel 2009 at paragraph 62).
[112]
Last, the respondents
note that, even if a court proposes less impairing means, that is not
sufficient to make a finding that the impairment is not minimal (Trociuk v
British Columbia (Attorney General), 2003 SCC 34, [2003] 1 S.C.R. 835 at
paragraph 36; United States of America v Cotroni and United States of
America v El Zein, [1989] 1 S.C.R. 1469).
Analysis
[113] First of all, the Court notes that the
Minister is placing a five‑year time limit on his refusal to issue a
passport to the applicant. This refusal is further mitigated in that the
applicant may, at any time, apply for a limited validity passport for urgent or
compassionate reasons. These two factors show that the applicant’s rights are,
to a certain extent, being weighed against the aim of the legislation. Indeed,
the applicant is not facing a final, ill‑considered refusal. The refusal decision
mentions the possibility of obtaining a limited validity passport. In the
circumstances, the refusal to issue a passport falls within the range of
reasonable measures and, in the opinion of the Court, is a minimal impairment
of the applicant’s rights.
The effects of the measure must be proportional to its objective
Applicant’s submissions
[114]
The
applicant is contesting the merits of the conclusion that it was “necessary”
for the national security of Canada
or another country to refuse him a passport. He contends that the
respondents do not have the evidence necessary to conclude that he should be
denied a passport. Counsel for the applicant
submits that Mr. Kamel served his sentence in France and has no other entries in his criminal
record, and that the government has no evidence against him aside from the
French decision. The applicant contends that this single piece of evidence
cannot justify the Minister’s refusal, given the lack of a direct causal link
between his prior conviction and national security or the fight against
terrorism.
[115]
The
applicant states that the respondents err in law in failing to recognize the
difference between whether this measure is “necessary” for national security or
“convenient or advantageous” for Canada (see Kamel 2009 at paragraph 29).
[116]
The
applicant also submits that the respondents have failed to assess his rights in
accordance with the appropriate standard of proof and the applicable law.
Respondents’ submissions
[117]
The respondents
note that the words “if the Minister is of the opinion” contained in
section 10.1 of the Order give the Minister discretion, which is exercised
within the bounds described by the words “such action is necessary”.
[118]
In
addition, the applicant also emphasizes that the courts have recognized that a
broad and flexible interpretation must be given to the notion of “security of Canada” (Harkat (Re), 2010 FC 1241 at
paragraphs 80 and 82 to 84 [Harkat]; Suresh, above, at
paragraphs 85 to 87).
[119]
The
respondents acknowledge that the Minister’s decision was made on the basis of
the applicant’s conviction in 2001 by the Tribunal de Grande Instance de Paris. They also state
that in matters of national security, direct evidence of danger is not
required. Furthermore, a person’s past actions
may be taken into account (Harkat, above, at paragraph 83; Zündel
(Re), 2005 FC 295 at paragraph 18 [Zündel]).
[120]
The
respondents also point out that the French judgment is not the only basis. In fact, also appended
to the recommendation are the Order and documents providing a description of
the Order’s stated purpose, Passport Canada’s mandate, Canada’s commitments, the importance of a
passport and terrorism in today’s world. The respondents submit
that, on the basis of all of those elements, the Minister is able to assess the
contents of the file and exercise his discretion.
Analysis
[121]
At
paragraph 67 of Kamel 2009, the Federal Court of Appeal sets
out the elements that the Minister must take into account in such files:
[67] Once the Minister is of the opinion, in the lawful
exercise of his or her discretion, that it is necessary to refuse to issue a
passport to a Canadian citizen on the ground of national or international
security, the denial of a passport does not weigh heavily in the balance when
compared to the resultant strengthening of security. It is not for the Court to speculate on the harm that this
person could cause to the security of Canadians, Canada and the international community. The evidence
is clear: the Minister would fail in his or her duty to protect Canadians and Canada and to comply with Canada’s international commitments if the Minister
issued the requested passport. There is no reason to wait for the risk to
materialize. The Court must be satisfied, here, with hypotheses and realistic
speculations and must rely on, to quote Justice Bastarache [at
paragraph 77] in Harper, “a reasoned apprehension of . . .
harm”. Common sense dictates that the possible collective harm outweighs the
real individual harm.
[122]
What must
therefore be determined is whether the respondents meet the “necessity” test. If so, there is proportionality
between the harm to the applicant and the benefit for the community as a whole.
[123]
The Court
is very sensitive to the applicant’s arguments that there must be sufficient
evidence to justify the infringement of his right to be presumed innocent. However, it also
notes that the decision to refuse a passport is not a criminal law measure.
That being so, the Minister does not have to apply
the standards and guarantees that generally hold sway in criminal law.
[124]
Furthermore, in its analysis, the Court must take into
account the unique paradigm of national security and the rules which apply in
that sphere and evolve quickly as events unfold. Furthermore, this Court has already stated that in matters of national
security, direct evidence of danger is not required and past actions may be
taken into account (Harkat, above, at paragraph 83; Zündel,
above, at paragraph 18). It follows that,
in a certain context of the fight against terrorism and risks for national
security, the general rules of evidence are not necessarily the same as those
usually applied in other types of cases. In
the case at bar, we are in the realm of exceptions. There must be room for the exercise of informed discretion.
In this regard, it seems judicious to reiterate the words of the House of Lords
in Secretary of State for The Home Department v Rehman, [2001] UKHL 47
(October 11, 2001) at paragraph 62:
62. Postscript.
I wrote this speech some three months before the recent events in New York
and Washington. They are a
reminder that in matters of national security, the cost of failure can be
high. This seems to me to underline the need for the judicial arm of
government to respect the decision of ministers of the Crown on the question of
whether support for terrorist activities in a foreign country constitutes a
threat to national security. It is not only that the executive has access to
special information and expertise in these matters. It is also that such
decisions, with serious potential results for the community, require a
legitimacy which can be conferred only by entrusting them to persons
responsible to the community through the democratic process. If the people are
to accept the consequences of such decisions, they must be made by persons whom
the people have elected and whom they can remove.
[125]
The case
law referenced above ably defines the evidence needed to satisfy the
proportionality test and the deference required from this Court in considering
a discretionary decision made in light of a recommendation by a specialized body. In this case, the
Court is of the opinion that this test is satisfied, since the applicant’s
rights are infringed for a limited time of five years. The infringement also cannot be characterized as final and
irrevocable, since it is possible that a limited validity passport could be
issued.
[126]
The
Minister’s decision in this case complies with all of the rules of procedural
fairness and meets the Order’s stated objectives. In fact, the Order is
designed, among other things, to maintain the good reputation of the Canadian
passport. The Minister’s decision to refuse to issue a passport to the
applicant, who has previously been found guilty of offences inextricably linked
to passports, seems reasonable in the Court’s view. The
causal link with the objectives stated in the Order seems clear to the Court.
That is why the Court finds that the Minister’s
decision to refuse the applicant a passport for reasons related to the national
security of Canada or of another country is
reasonable and consistent with the law in the circumstances.
[127]
Given this
finding, the Court is of the opinion that there is no need to analyze
questions 7 and 8.
III. Conclusion
[128]
The Court
notes that the principles of procedural fairness were not breached in the
investigation leading to this dispute. As for the applicant’s constitutional rights
guaranteed by sections 6, 7 and 8 of the Charter, the Court
concludes that only subsection 6(1) was violated, but that this violation
is justified under section 1 of the Charter. Consequently, the application
for judicial review is dismissed.
JUDGMENT
THIS COURT’S JUDGMENT IS that the application for judicial review is
dismissed.
“André F.J. Scott”
Certified true
translation
Sarah Burns
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