Docket: T-
1180-13
Citation: 2014 FC 298
Ottawa, Ontario, March 28, 2014
PRESENT: The Honourable Mr. Justice Zinn
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BETWEEN:
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RUTH LUCIA SISKA
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Applicant
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and
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PASSPORT CANADA
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review of a
decision of Passport Canada under sections 10(2)(b) and 10.3 of the Canadian
Passport Order, SI/81-86 [CPO], dated June 12, 2013, to revoke the
Applicant’s passport and impose a period of refusal of passport services of four
years.
[2]
The facts are not disputed.
[3]
Lucia Siska, was issued a Canadian passport on
May 14, 2008. On September 1, 2012, she was scheduled to fly with her
daughter, Lucero Quiroz, to Toronto from Lima, Peru. They checked in for their
flight, but between check-in and boarding, their passports went missing. As a
result, they did not board their flight as scheduled.
[4]
After the flight departed, Ms. Quiroz admitted
to her mother that she had taken the passports from the check-in counter and
hidden them in her shoe, as she did not want to leave Peru. Ms. Siska in a written statement said: “I checked the passport & look like OK.”
She subsequently advised the Canada Border Services Agency [CBSA] that the
passports had been found.
[5]
On September 7, 2012, Ms. Siska and her daughter
attempted to check in for another Air Canada flight from Lima to Toronto. Both of their passports had a substituted bio-data page (i.e. the page of the
passport with a photograph and biographic information of the passport holder) which
had various deficiencies compared to a legitimate bio-data page. Specifically,
the page was a colour photocopy of the original genuine page but the page had
been cut out with scissors, the edges had not been cut straight, the text was
cut off in some places, the copy had been made with an ink jet printer, the
copy was affixed with clear adhesive tape, the pages were laminated with a
thick laminate, it was not optically variable, perforations were reproduced by
a print technique, and the corners were not die-cut.
[6]
The two passports were seized by CBSA. Ms.
Siska and her daughter were directed to the Canadian embassy where on September
10, 2012, she completed a declaration concerning a lost, stolen, inaccessible,
damaged or found Canadian travel document and she provided a written statement
of the events leading up to the seizure of the passports. She concluded that
statement as follows: “On September 07 in the airport I notice the passport
the first page was damaged [sic].” She was issued an Emergency Travel
Document for her return to Canada.
[7]
On March 27, 2013, an Investigator from the
Investigations Division of Passport Canada advised Ms. Siska in writing that
she was the subject of an investigation for misuse of a passport issued in her
name.
[8]
On May 13, 2013, Ms. Siska sent submissions to
Passport Canada from both herself and her daughter. She indicated that she had
been unaware of any tampering with her passport, and that her daughter had
altered the passports unbeknownst to her. She also stated that she had noticed
that the pictures in the passports were damaged, but thought that the damage
was caused because they had been stored in her daughter’s shoe. She said that
had she known that the page was a copy of the original, with the deficiencies noted
above, she would not have attempted to travel on the passport. Her daughter
stated that she had altered the passports one day before the flight because she
did not want to return to Canada.
[9]
On June 12, 2013, Passport Canada issued the decision revoking Ms. Siska’s passport and imposing a period of refusal
of passport services. The decision-maker concluded that Ms. Siska was, in
fact, aware of the damage to the passport, yet attempted to travel with them
anyway. The relevant portion of the decision reads as follows:
After a thorough
review of all the information gathered throughout the investigation and your
submissions, it has been determined that, based on the balance of
probabilities, there is sufficient information to support a conclusion that you
attempted to use Canadian passport WS641640 issued in your name to assist you
in committing the indictable offence of possessing a forged passport, contrary
to section 57(3) of the Criminal Code; and of attempting to use a forged
or altered document for the purpose of entering Canada, contrary to section
122(1) of the Immigration and Refugee Protection Act (the IRPA),
in combination with sections 122(2) and 123 of the IRPA.
Given the
aforementioned, it is important to note that criminal proceedings are separate
from any action taken by Passport Canada. Therefore, the decision is to revoke
passport WS641640 issued in your name under section 10(2)(b) of the Canadian
Passport Order, SI/81-86, as amended (the Order), and to impose a
period of refusal of passport services until September 7, 2016, pursuant to
section 10.3 of the Order. The application of section 10(2)(b) of
the Order does not require you to have been charged with, or convicted
of, an offence in Canada or abroad. For this section of the Order to
apply it is sufficient to determine, based on the balance of probabilities,
that the passport was used in the commission of an act or omission that
constitutes an indictable offence in Canada, or an act or omission in a foreign
state that would constitute an indictable offence if committed in Canada.
Section 10.3 of the
Order authorizes Passport Canada to impose a period of refusal of passport
services when a passport issued to a person has expired but, had the passport
not expired, could have been revoked under any of the grounds set out in
sections 10 and 10.1. Although passport WS641640 has expired, this section of
the Order applies as the misuse of the passport occurred before its
expiry on May 14, 2013.
This ineligibility
period has been computed to correspond with the date passport WS641640, was
misused, which was September 7, 2012. This reflects the seriousness with which
we regard passport abuse, misuse or misinformation in the context of
entitlement to passport services.
(bolding in original,
emphasis added)
[10]
The relevant provisions of the CPO are as
follows:
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10(2) In addition, the Minister may
revoke the passport of a person who
(a)
being outside Canada, stands charged in a foreign country or state with the
commission of any offence that would constitute an indictable offence if
committed in Canada;
(b)
uses the passport to assist him in committing an indictable offence in Canada or any offence in a foreign country or state that would constitute an indictable offence if
committed in Canada;
(c)
permits another person to use the passport;
(d)
has obtained the passport by means of false or misleading information; or
(e)
has ceased to be a Canadian citizen.
10.1 Without
limiting the generality of subsections 4(3) and (4) and for greater certainty,
the Minister may refuse or revoke a passport if the Minister is of the
opinion that such action is necessary for the national security of Canada or another country.
10.2 The
authority to make a decision to refuse to issue or to revoke a passport under
this Order, except for the grounds set out in paragraph 9(g),
includes the authority to impose a period of refusal of passport services.
10.3 If a
passport that is issued to a person has expired but could have been revoked
under any of the grounds set out in sections 10 and 10.1 had it not expired,
the Minister may impose a period of refusal of passport services on those
same grounds, except for the grounds set out in paragraph 9(g), if
the facts that could otherwise have led to the revocation of the passport
occurred before its expiry date.
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10(2) Il peut en outre révoquer le passeport de la personne qui:
a) étant en dehors du Canada, est accusée
dans un pays ou un État étranger d’avoir commis une infraction qui
constituerait un acte criminel si elle était commise au Canada;
b) utilise le passeport pour commettre un
acte criminel au Canada, ou pour commettre, dans un pays ou État étranger,
une infraction qui constituerait un acte criminel si elle était commise au
Canada;
c) permet à une autre personne de se servir
du passeport;
d) a obtenu le passeport au moyen de
renseignements faux ou trompeurs;
e) n’est plus citoyen canadien.
10.1 Sans que soit limitée la généralité des paragraphes 4(3) et (4), il
est entendu que le ministre peut refuser de délivrer un passeport ou en
révoquer un s’il est d’avis que cela est nécessaire pour la sécurité
nationale du Canada ou d’un autre pays.
10.2 Le pouvoir de prendre la décision de refuser la délivrance d’un
passeport ou d’en révoquer un en vertu du présent décret, pour tout motif
autre que celui prévu à l’alinéa 9g), comprend le pouvoir
d’imposer une période de refus de services de passeport.
10.3 Dans le cas où un passeport aurait pu être révoqué pour l’un des
motifs visés aux articles 10 et 10.1
— à l’exception du motif prévu à l’alinéa 9g)— s’il n’avait
pas été expiré, le ministre peut imposer une période de refus de services de
passeport pour le même motif si les faits qui auraient autrement pu mener à
la révocation se sont produits avant la date d’expiration.
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[11]
Ms. Siska, who is self-represented, alleges that
(1) the decision failed to acknowledge the fact that her daughter acted alone
in altering the passport, (2) the decision is incoherent, (3) the decision is
not supported by sufficient reasons, and (4) the decision is not supported by
the evidence on file. She did not allege as an issue the authority of the
Minister to revoke her passport and refuse her passport services given the
facts as the Minister found them; however, it is that issue on which this
decision rests.
[12]
In his memorandum, counsel for the Minister
relied on this Court’s decision in Vithiyananthan v Canada (Attorney
General), [2000] 3 FCR 576, [2000] FCJ 409 (QL) [Vithiyananthan] for
the proposition that it is not necessary for the purposes of paragraph 10(2)(b)
of the CPO that the person whose passport is being revoked has had a charge
laid or been convicted of an indictable offence. At paragraphs 10 and 11 of Vithiyananthan,
Justice Simpson stated as follows:
The dispute concerns the meaning of
"committing an indictable offence".
With regard to the word
"committed", it is relevant to note that section 10(a) of the CPO
deals with people who have been "charged" with an offence, while
section 9 covers both those who have been "charged" (sections 9(b)
and (c)) and those who have been "convicted" (section 9(e)). In
this context it is clear, and the Applicant does not dispute, that the word
"committed" in section 10(b) of the CPO is not intended to include a
requirement that a charge has been laid or that a conviction has been obtained.
(emphasis added)
[13]
The dispute in Vithiyananthan turned not
on whether that applicant had “committed” an offence, rather it turned on whether
it was an indictable offence as the Crown had elected to proceed summarily.
What is important to note for the present purposes is that Mr. Vithiyananthan
had been charged and convicted of an offence, specifically the offence then
provided for in subsection 94(2) of the Immigration Act, RSC 1985, c I-2,
of having aided and abetted his cousin to enter Canada illegally.
[14]
Accordingly, the emphasized portion of the
judgment recited above that is relied upon by the Minister is obiter. It
was not required for the purposes of the decision.
[15]
The Applicant here, unlike Mr. Vithiyananthan,
has not been charged or convicted of any of the offences referenced by the
decision-maker in the decision under review.
[16]
Counsel for the Minister quite properly brought
to the attention of the Court, Justice Phelan’s recent decision in Dias v Canada
(Attorney General), 2014 FC 64, [2014] FCJ No 60 (QL) [Dias]. Counsel
informed the Court that it is presently under appeal and urged the Court not to
follow it. Justice Phelan held that a revocation of a passport pursuant to
paragraph 10(2)(b) of the CPO is dependent upon there having been a
conviction. He states the basis for his conclusion succinctly in paragraphs 14
to 16, as follows:
In
interpreting paragraph 10(2)(b), the power to revoke is dependent on the
commission of an indictable offence in Canada or an offence of similar type in
another country. The words “in committing an indictable offence” mean that a
precondition to revocation or service denial is the commission of an indictable
offence by the subject person.
There
was no finding of the commission of an indictable offence. Not only did the
Director not say so (he only referred to misuse of a passport), the Director
has no jurisdiction to make such a finding. That type of finding is a matter
of criminal law to be determined by a judge, not by a government official. The
constitutional prohibition on the executive branch of government to find
someone guilty of an indictable offence is too settled to require further
elaboration.
It is
noteworthy that paragraph 10(2)(b) is not couched in terms of “has
reason to believe” or “there are grounds to believe that an offence may have
been committed” or other such words used in various other immigration
provisions. Such language might well have invested the Director with the
jurisdiction he thought he had. However, in the absence of such wording, the
Director did not have the authority to find that an indictable offence had
occurred
[17]
Although it is not referred to in his Reasons,
the decision in Vithiyananthan was before Justice Phelan in Dias,
as it was here. Comity would not have applied there, nor here, because the
passage relied upon by the Minister is obiter.
[18]
I find Justice Phelan’s reasoning compelling. I
agree with him that it is a precondition to passport revocation under paragraph
10(2)(b) of the CPO that the passport holder has been convicted of an
indictable offence. Because Ms. Siska was never convicted, let alone charged,
the decision to revoke her passport was made without authority.
[19]
In any event, the revocation was invalid because
the passport had expired by the time it was purportedly revoked. The Minister
can only revoke a passport that has not expired. This is clear from section
10.3 of the CPO which speaks to a situation where, but for the expiration of
the passport, it could have been revoked under paragraph 10(2)(b).
[20]
In fact, the Minister relied on section 10.3 to
impose a period of refusal of passport services. This decision to impose a refusal
of passport services is also made without authority as such an order can only
be made on the same grounds set out in sections 10 and 10.1. As there was no
conviction as required under section 10, and no suggestion of any national
security issues as provided for in section 10.1, there is no authority to
impose the withdrawal of services.
[21]
For these reasons, the application must be
granted.
[22]
The Applicant sought her costs in the amount of
$2,000. However, as she was self-represented and as the basis for her success is
due entirely to the Minister’s counsel fulfilling his duty to the Court and bringing
Dias to our attention, there will be no order as to costs.
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