Docket: T-1859-13
Citation:
2014 FC 829
Ottawa, Ontario, August 29, 2014
PRESENT: The
Honourable Madam Justice McVeigh
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BETWEEN:
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RYAN DESMOND DE HOEDT
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
This is an application for judicial review of a
Passport Canada decision dated October 11, 2013, that revoked Ryan Desmond De
Hoedt’s (the Applicant, or Ryan) passport from April 25, 2013 until April 25,
2018. The Director of Investigations Division Passport Program Integrity Branch
(the Director) revoked the passport when they found that the Applicant committed
an indictable offence outside of Canada by facilitating or aiding the entry of
his sister without proper documentation into Canada, contrary to s. 117 of Immigration
and Refugee Protection Act, SC 2001, c 27 (the IRPA).
I.
Issues
[2]
The issues are:
A.
Were the procedural fairness requirements met?
B.
Did the decision maker have the jurisdiction to
make the decision he made?
C.
Was the decision reasonable?
II.
Standard of Review
[3]
The standard of review is reasonable for the
decision and is correctness for the procedural fairness issue (Dunsmuir v New Brunswick, 2008 SCC 9; Villamil v Canada (Attorney General), 2013 FC 686 at
para 30).
III.
Legislative Context
[4]
The Canadian Passport Order, S1/81-86
(the Order), sections 9 & 10 (attached as Appendix A), is the legislation
that the Director relied on to make the decision. The decision to revoke the
passport was made pursuant to subparagraph 10(2)(b). That section states that
revocation of the passport can occur if the applicant commits any offence in a
foreign country, and that if it was done in Canada would be an indictable
offence. Other sections apply where there are actual charges laid or convictions.
IV.
Facts
[5]
The Applicant is a Canadian citizen originally
from Sri Lanka. He was employed as a flight attendant with WestJet until this
situation occurred. This story begins when Ryan says his sister, a Sri Lankan
citizen, called him from Sri Lanka wanting help. Ryan said his sister told him
her life was in danger in Sri Lanka as she was running from the police so she
needed him to come and help her. Ryan flew to Malaysia to assist his sister and
says he thought he was taking her back to Sri Lanka, but when he arrived in Malaysia a hired agent threatened him and told him to fly to Laos to meet her. Ryan’s evidence is
that in Malaysia he learned she had a fake Canadian passport and that the plan
was to return to Canada via Seoul, Korea and Tokyo, Japan.
[6]
Ryan said the hired agent assisted his sister to
check in at Laos airport to fly to Korea and provided her with a passport to
travel on. Ryan flew from Laos to Korea on the same flight as his sister and
says the hired agent destroyed the sister’s Sri Lankan passport and gave her
the fake Canadian passport. Their flight from Korea arrived at Tokyo, Narieta Airport on April 25, 2013. Ryan went with his sister to the Air Canada counter to try
and obtain a boarding pass for her flight to Canada. By his own admission, he
had knowledge the passport was fake when he tried to get a boarding pass for
his sister in Tokyo.
[7]
The Air Canada ticket agent staff reported the
suspicious passport to the officials after Ryan tried to convince officials of
the passport’s authenticity and gave explanations including that maybe it was
because she previously had the passport in her married name. Additional
verifications by officials in Tokyo revealed the sister’s passport was fake and
his was real.
[8]
Ryan and his sister were detained in Tokyo and because the flight to Calgary had already departed he was flown to Vancouver. In Vancouver, after being interviewed by CBSA officials they confirmed his
passport was valid. His sister was deported from Japan back to Sri Lanka.
[9]
Ryan has provided slightly different stories to
officials in Tokyo and to officials in Canada. But there is no disagreement
that by the time Ryan and his sister reached Tokyo he knew she was using a fake
passport and he used the fake passport to try to get her a boarding pass to fly
to Canada.
[10]
Ryan’s legal counsel provided written
submissions to the Director on September 11, 2013, after all of the information
regarding the investigation was disclosed.
[11]
Ryan says his actions were not a deliberate plan
to facilitate his sister’s illegal entry into Canada but his deceit was to
protect her and that the humanitarian motive is an important overriding factor
in this case.
V.
Preliminary Issue
[12]
The Respondent has pointed out that there is
evidence in the Applicant’s affidavit in paragraphs 3, 4, 16, 17, 18, 19, 20
that was not before the decision maker. The Federal Court of Appeal has held
that it is not for me to reweigh or re-decide the merits on the facts and
therefore I will disregard the evidence that was not before the decision maker
(Assn of Universities and Colleges of Canada v Canadian Copyright Licensing
Agency, 2012 FCA 22 at paras 17-20).
VI.
Analysis
A.
Were the Procedural Fairness Requirements met?
[13]
Ryan argues that the decision is not reasonable
as the reasons were vague and the specific offence that he was found to have
committed is not identified by the section number in the reasons. The Applicant
said that until the judicial review he did not know the exact offence that he
was found to have committed. The Applicant only found out what offence he had committed
when the Respondent presented evidence for the judicial review application.
[14]
In the materials filed by the Respondent
(Affidavit of Donald Closs) it states that the Director relied on section 117
of the IRPA (section 117, attached as Appendix B) as the underlying basis to
support its actions under subparagraph 10(2)(b) of the Order. The Director
stated the offence in this case was “attempting to
facilitate the illegal travel to Canada of an improperly documented individual”.
The Applicant argues that failing to inform the individual of what the specific
offence was is a breach of procedural fairness.
[15]
The Respondent submitted that not stating the
exact section of the act is not fatal as the elements were set out and the Applicant
had the ability to answer the allegations and respond. The Respondent says the Applicant
was represented by counsel and did file submissions after receiving full
disclosure so there was no breach of procedural fairness.
[16]
I am assisted by jurisprudence of this court
that considered the procedural requirements in the context of a passport
revocation.
[17]
Justice Simon Noël found in Kamel v Canada (Attorney
General), 2008 FC 338 (Kamel), that it was sufficient if the
applicant is provided with disclosure of the facts alleged and the information
collected in the course of the investigation and then the applicant is given an
opportunity to respond. I agree and in this case the Applicant was provided
with all of the disclosure and then with assistance of counsel provided a
response. This response was considered by the decision maker.
[18]
In Abdi v Canada (Attorney General), 2012
FC 642 (Abdi), Justice Mary J.L. Gleason found in the cases before her
that there was a breach as some but not all the material concerning the
allegations was provided to the applicants. She found that the applicants
needed to be given the opportunity to respond before the decision maker can
make a decision.
[19]
On these facts unlike in Abdi, all
the material facts of the investigation were given to the Applicant so they
could make a full answer.
[20]
Justice Michael L. Phelan in Dias v Canada (Attorney General), 2014 FC 64 (Dias) (Notice of Appeal filed February
18, 2014), found that not identifying the section in the decision was unreasonable
as the Director only said that the applicant misused his passport and that is
not an indictable offence.
[21]
The facts in this case are distinguishable from Dias,
above. The Director did not identify the exact section but did state what the
offence was and the facts used when the Director found Ryan had committed the
offence. The Director on our facts wrote “…while
travelling on Passport---- (removed for privacy) you were attempting to
facilitate the illegal travel to Canada of an improperly documented individual…”
[22]
I adopt the reasoning in Kamel and Abdi,
above, and I find no breach of the principles of natural justice as Ryan was
given an opportunity to respond to all of the facts gathered in the
investigation, and he did respond. The Director considered Ryan’s submissions
before the decision was made. On these facts there is no disagreement he tried
to use the fake passport to aid his sister in entering Canada illegally.
[23]
In some factual situations it would be a breach
by the Director not to have named the section in the reasons but in this case I
find all procedural fairness requirements were met and that the reasons are not
vague. It would of course have been preferable if the actual number of the
section had been used by the Director but it is not fatal in this case.
B.
Did the Decision Maker have the Jurisdiction to
make the Decision he made?
(1)
Jurisdiction and section 117 of the IRPA
[24]
The Applicant argues the Director did not have
the jurisdiction to decide that he had committed an indictable offence. The Applicant
argues that the Director used the word “facilitating” in the decision and that that
word is not even referenced to in s. 117.
[25]
The Applicant says it is clear he was
accompanying his sister to get her to Canada to seek refuge and that this is laudable
goal. Ryan argues that this compassionate motive should be a heavily weighted
factor and should out weigh what he did. Further he states that she
independently obtained the fake passport by hiring an agent and that he had
nothing to do with obtaining the fake passport. His position is that revoking his
passport when he did not organize this ill conceived plan would be an injustice
and it goes against the principles of natural justice. He submitted that Canada
does not impose penalties for refugees entering illegally and relies on R v
Appulonappa, 2013 BCSC 31, for support that s. 117 is overbroad and
infringes section 7 of the Constitution Act, 1982 (Charter Rights), when
this sanction is imposed when the motive is humanitarian.
[26]
The British Columbia Court of Appeal (BCCA) in R
v Appulonappa, 2014 BCCA 163, since the Applicant’s written argument and
before the hearing, has overturned the trial division decision that was argued
in the written submissions and leave has been granted to the SCC ([2014] SCCA
No 283). The BCCA head notes says:
The s. 117 offence is directed to Parliament's
historical domestic concern with border control by preventing individuals from
arranging the unlawful entry of undocumented migrants into Canada. The record does not support the respondents' contention that Parliament intended to
exempt those acting through altruistic motives from prosecution under s. 117.
Nor do the international instruments under consideration produce that result.
The broad scope of the offence is thus aligned with its legislative objective,
and the offence is not overbroad.
[27]
The BCCA is not binding but I find the analysis
helpful. In R v Appulonappa at paragraphs 64-65, the BCCA relied on the
Federal Court in JP v Canada (Minister of Public Safety and Emergency
Preparedness); B306 v Canada (Minister of Public Safety and Emergency
Preparedness); Hernandez v Canada (Minister of Public Safety and Emergency
Preparedness), 2013 FCA 262 at paras 85-86, leave to appeal to the SCC
granted (2014 Can 18477), when it said that s. 117 has four elements being:
[64] …the person being smuggled did not have
the required documents to enter Canada; the person was coming into Canada; the accused organized, induced, aided or abetted the person to enter Canada; and the accused knew the person lacked the required documents for entry….
[65] Motive is not a constituent element of the
offence. It is relevant only as an aggravating factor for the purpose of
sentencing…
[28]
On our facts the four elements were present so the
Director found Ryan committed the offence. It does not matter that the Director
used facilitated instead of “organized, induced, aided or
abetted” as set out in section 117. Facilitate is a synonym for “aid”, “help”,
“make easy” and “assist” so the element of the offence was met.
[29]
I agree with the BCCA that motive has no part
in this determination. I find that the Director had the jurisdiction to make
the decision that the Applicant committed the offence (Mbala v Canada (Attorney General), 2014 FC 107 at para 20).
C.
Was the decision reasonable?
[30]
I find the decision is reasonable for the
reasons set out in the paragraphs that follow.
[31]
Canada has an
international obligation to keep the integrity of our passport system (Kamel,
above, at para 41). This is a very important aspect of security, and so that
Canadians are able to continue to enjoy the benefits of maintaining this high
level of compliance:
[50] …When
dealing with passports, there are stringent standards approaching perfection
that must be adhered too, in order to meet international requirements and thus
ensure the unreserved confidence of the international community.
Slaeman v Canada (Attorney General), 2012 FC 641 at para 50
[32]
The decision maker said that on a balance of
probabilities, Ryan had committed an indictable crime of (facilitating) aiding
or abetting in human smuggling by helping his sister either obtain or travel on
a fake passport. Subparagraph 10(2)(b) uses “committed” whereas subsections 9(b)
& (c), 10(2)(a) applies to individuals that were “charged”, and subsection
9(e) is individuals that have been “convicted”. These are all intentional use
of the words and have very different legal meanings (R v Barnier, [1980]
SCJ No 33; Peach Hill Management Ltd v Canada, [2000] FCJ No 894 (FCA)).
[33]
The use of the word “committed” rather than “convicted”
or “charged” was the intent of Parliament when the section was drafted. Parliament
wanted the Canadian decision maker to be able to make the determination if there
was proof of the elements of the indictable offence and it was committed in a
foreign country. The rational would seem to be that some foreign countries do
not have the same legal processes as Canada and with this section we do not
need to rely on foreign countries justice systems for a conviction of an
equivalent offence (Vithiyananthan v Canada (Attorney General), [2000] 3
FCR 576).
[34]
I think the decision was reasonable as we have a
flight attendant who by his job title is a sophisticated, knowledgeable
individual when it comes to understanding the consequences of assisting someone
with a fake passport. He knew the passport was fake. He assisted or facilitated
his sister to try and enter Canada on a fake passport. Ryan was the one at the
Air Canada check-in in Tokyo that attempted to obtain a boarding pass for his
sister knowing it was a fake passport. It is reasonable that the board
determined that he had committed a crime in a foreign country that was
indictable if committed in Canada given the overwhelming evidence, most of
which was provided by the Applicant.
[35]
This is a sad story for this individual as he is
no longer employed as a flight attendant but Canadian officials cannot allow
people to assist others to travel on fake passports no matter what the
compassionate humanitarian motive may be.
[36]
I will dismiss this judicial review.
[37]
No costs are ordered as none were requested
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