Docket: T-1332-13
Citation:
2014 FC 763
Ottawa, Ontario, July 31, 2014
PRESENT: The
Honourable Mr. Justice Phelan
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BETWEEN:
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AZADBIR SINGH BRAR
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
This case relates to passport fraud. This is the
judicial review of a decision by Passport Canada refusing to issue the
Applicant (formerly known as Parminder Singh Sidhu) a passport and imposing a
five-year withdrawal of passport services effective November 2010.
[2]
The style of cause is also to be amended to list
only the Attorney General of Canada as Respondent.
II.
Background
[3]
The decision at issue was made pursuant to s 9(a)
and 10.2 of the Canadian Passport Order, SI/81-86:
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9. Without limiting the generality of subsections 4(3) and (4) and
for greater certainty, the Minister may refuse to issue a passport to an
applicant who
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9. Sans que soit limitée la généralité des paragraphes 4(3) et
(4), il est entendu que le ministre peut refuser de délivrer un passeport au
requérant qui :
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(a) fails to provide the Minister with
a duly completed application for a passport or with the information and
material that is required or requested
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a) ne lui
présente pas une demande de passeport dûment remplie ou ne lui fournit pas
les renseignements et les documents exigés ou demandés
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(i) in the
application for a passport, or
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(i) dans la
demande de passeport, ou
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(ii) pursuant to
section 8;
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(ii) selon
l’article 8;
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…
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…
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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.
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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.
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[4]
The Applicant emigrated from India in 1992 and became a Canadian citizen in 1998. He was issued a Canadian passport under the
name of Parminder Singh Sidhu [Sidhu] in November 2004, which was renewed in
August 2010.
[5]
On November 18, 2010, a passport application [the
November 2010 application] in the name of Azad Singh Brar [Azad Brar] was
submitted accompanied by photographs which resembled the Applicant. In
addition, the November 2010 application was accompanied by a letter from Brar
authorizing Monique Raymond (identified as Brar’s common law wife) to act on
his behalf. That application was also accompanied by a health card and
certificate of Canadian citizenship in the name of Brar.
[6]
When Raymond submitted this application, the
certificate of Canadian citizenship was identified by an officer as fraudulent.
The photos were later determined to be photos of the Applicant.
The
crux of this case is that the Applicant denies having made this November 2010
application.
[7]
On January 24, 2011, the Applicant’s passport in
the name of Sidhu was damaged. He applied for and was issued a replacement
passport two days later.
[8]
The RCMP opened an investigation into the
November 2010 application.
[9]
In 2012 the Applicant travelled to India where, he claims, he was advised by an astrologer to change his name to Azadbir
Singh Brar (not “Azad”) [Court underlining] and referred here as Azadbir Brar.
On November 2, 2012, the Applicant received a change of name certificate under
the Change of Name Act in the name of Azadbir Brar.
[10]
The Applicant then filed for a passport in the
name of Azadbir Singh Brar and returned his Sidhu passport.
[11]
Criminal charges were laid by the RCMP against
the Applicant but these were withdrawn.
[12]
On January 22, 2013, an investigator from
Passport Canada advised the Applicant of information in its possession that
indicated that he had, in filing a passport application, provided false and
misleading information supported by fraudulent documentation. The details of
the information in the hands of Passport Canada were:
•
On August 12, 2010, the Applicant attended the Brampton office to submit a passport renewal application for a passport in the name of
Parminder Singh Sidhu. The passport was issued on August 13, 2010;
•
On November 18, 2010, a passport application in
the name of Azad Singh Brar was submitted to the Mississauga office on his
behalf. This application was supported by a fraudulent certificate of Canadian
citizenship. As a result of the fraudulent certificate, no passport was issued
in the name of Azad Singh Brar;
•
On January 24, 2011, the Applicant submitted a
replacement passport application in the name of Parminder Singh Sidhu. As a
result of this application, a new passport was issued in the name of Parminder Singh
Sidhu on January 26, 2011;
•
On December 31, 2012, the Applicant submitted an
application for a passport in the name of Azadbir Singh Brar, accompanied by
his previous passport and Canadian citizenship card (both in the name of
Parminder Singh Sidhu) and a legal change of name certificate attesting that
his previous name, Parminder Singh Sidhu, had been changed to his new name,
Azadbir Singh Brar; and
•
Photo comparison technology confirmed that the
photographs submitted in the Parminder Singh Sidhu and Azadbir Singh Brar
passport applications and the November 2010 application were of the same
person.
[13]
That letter of January 22, 2013 from the
investigator provided the Applicant with an opportunity to respond and warned
of the consequences of submitting false and misleading information.
[14]
Following this letter, the investigator was in
contact with a RCMP officer who informed her that the Applicant had admitted to
“doing a wrong thing”.
[15]
In the Applicant’s response to the investigator,
he claims that the astrologer, who was aware that the Applicant’s name had been
changed, had told him to change his name again. The Applicant did not deny
filing the November 2010 application but stated that he was not a bad person.
The
investigator noted the obvious – the November 2010 application in the name Azad
Brar was submitted before the meeting with the astrologer.
[16]
In March 2013 the investigator wrote to the
Applicant to inform him that Ontario Vital Statistics records showed that the
November 2, 2012 name change application involved more than a simple name
change; that the name change application included a different date of birth,
different place of birth, different residential address, different occupation
and different spousal information. The investigator concluded that the
Applicant attempted to obtain a passport under an entirely new identity.
[17]
This time the Applicant responded to the investigator
claiming that he did not apply for the November 2010 passport and was not aware
of it until the RCMP notified him.
[18]
Later the Applicant wrote denying that he had
committed an offence and claiming that the RCMP misconstrued his statements and
denied any involvement in the November 2010 application.
[19]
On July 10, 2013, the Director of Passport
Programs issued the decision to refuse issuing a passport on the grounds that
the Applicant had provided false and misleading information.
[20]
The Director outlined the factors taken into
account in reaching the decision:
•
Passport Canada records indicate that on August
12, 2010 the Applicant submitted an application form in the name of Parminder
Singh Sidhu. As a result, Canadian passport WG207393 was issued;
•
On November 18, 2010, a passport application was
submitted in the name of Azad Singh Brar. This application listed a different
date of birth, place of birth, residential address and occupation from the
application submitted in the name of Parminder Singh Sidhu. The November 2010
application stated no passport had been issued to the Applicant in the past
five years. It was accompanied by a certificate of Canadian citizenship with a
photograph of the Applicant, along with two passport photographs;
•
Passport Canada verified the November 2010
application with Citizenship and Immigration Canada. The discussions revealed
that the certificate of Canadian citizenship submitted in support of the
application was fraudulent;
•
On January 24, 2011, the Applicant submitted an
application in the name of Parminder Singh Sidhu. The information provided on
this application matched that provided on the previous Sidhu applications. As a
result of this application, Canadian passport WG265258 was issued;
•
On December 31, 2012 the Applicant submitted a
passport application, complete with two photographs, in the name of Azadbir
Singh Brar. The application was accompanied by a written statement explaining
that the Applicant has changed his name, as well as a Legal Change of Name
certificate;
•
Verifications with Passport Canada’s photo
comparison technology revealed that the photographs submitted for the
application for Canadian passport WG207393 in the name of Parminder Singh Sidhu
were of the same person as that appearing in the photographs submitted with the
November 2010 application;
•
An email from the Applicant on February 21, 2013
explained that he had changed his name following a trip to India in 2012 when he was advised by an astrologer to change his name to Azadbir Singh Brar. This
trip to India is after the date of the November 2010 application;
•
An email from the Applicant on March 25, 2013
expressed confusion at the continuation of the Passport Canada investigation
following the criminal charges being dropped; and
•
The Director summarized the content of the
Applicant’s email dated May 8, 2013.
[21]
The Director further noted that the November
2010 application was accompanied by photographs confirmed to be the same person
as those in the Sidhu identity documents, along with a fraudulent citizenship
certificate in the name of Azad Brar. The Director also noted that although
denying any knowledge of the November 2010 application, the Applicant changed
his name to one very similar.
[22]
In addition to denying passport issuance, the
Director withdrew passport services subject to urgent, compelling and
compassionate considerations.
III.
Analysis
[23]
Despite the complexity of the facts, the issues
and their resolution are reasonably straightforward.
[24]
The issues are:
1.
was the Director’s decision reasonable?
2.
was there a breach of procedural fairness?
3.
did the decision violate s 6 or s 7 Charter
rights?
A.
Reasonableness of Decision
[25]
The decisions of Passport Canada to refuse, revoke or withhold passport services are reviewable on a standard of
reasonableness (Villamil v Canada (Attorney General), 2013 FC 686 at
para 30).
[26]
In my view, there was sufficient evidence in the
investigation file to support a conclusion based on a balance of probabilities,
that the Applicant was involved in the fraudulent November 2010 application.
The critical components supporting the reasonableness of the Director’s
conclusion are:
•
The November 2010 application was submitted by a
woman in support of her male partner’s application;
•
The November 2010 application was supported by
photographs which were determined by a computer program to be of the Applicant;
•
The November 2010 application was supported by a
fraudulent certificate of Canadian citizenship with a photo which was
determined by a computer program to be of the Applicant;
•
The Applicant was charged by the RCMP in
relation to the November 2010 application. These charges were ultimately
dropped;
•
An RCMP officer involved in the criminal charges
gave evidence that after the charges were dropped, the Applicant had not denied
his criminality and had told the officer that he had “done
a bad thing”;
•
The Applicant legally changed his name to a name
strikingly similar to that of the November 2010 application;
•
The Applicant’s denial of any involvement in the
November 2010 application; and
•
The Applicant’s story of the suggestion by an
astrologer to change his name post-dates the November 2010 application.
[27]
The choice of a five-year suspension of passport
services is likewise reasonable. It is a standard penalty for passport
misconduct and since it came into effect retroactively to November 2010, in
reality it was a two-year suspension from the decision date in July 2013.
B.
Procedural Fairness
[28]
The procedural fairness issue is focused on bias
on the part of the investigator. This issue is to be decided on a correctness
standard of review.
[29]
I note that in Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, 174 DLR (4th) 193,
at para 45, a claim of bias could be validly made against subordinates of the
decision-maker.
Procedural fairness also requires that
decisions be made free from a reasonable apprehension of bias by an impartial
decision-maker. The respondent argues that Simpson
J. was correct to find that the notes of Officer Lorenz cannot be considered to
give rise to a reasonable apprehension of bias because it was Officer Caden who
was the actual decision-maker, who was simply reviewing the recommendation
prepared by his subordinate. In my opinion, the duty to act fairly and
therefore in a manner that does not give rise to a reasonable apprehension of
bias applies to all immigration officers who play a significant role in the
making of decisions, whether they are subordinate reviewing officers, or those
who make the final decision. The subordinate officer plays an important
part in the process, and if a person with such a central role does not act
impartially, the decision itself cannot be said to have been made in an
impartial manner. In addition, as discussed in the previous section, the notes
of Officer Lorenz constitute the reasons for the decision, and if they give
rise to a reasonable apprehension of bias, this taints the decision itself.
(emphasis
by Court)
[30]
However, the test for bias is a high one as
stated in Committee for Justice and Liberty v Canada (National Energy Board),
[1978] 1 S.C.R. 369.
[31]
The role of an investigator is different from
that of the Director – the investigator searches for facts, probes evidence and
inconsistencies if any. Challenging a party’s responses is not necessarily bias
but simply the required probing which is properly part of the role of an
investigator. In this case, the investigator was obligated to forward the file
to the Director where there was evidence to support a claim that a passport
should be denied. (See Passport Policy Manual, sections 5 and 6)
[32]
The investigator is obliged to go beyond fact
finding to reach a conclusion on whether there is supportable evidence. Neither
this nor outlining of the allegations and providing an opportunity to respond
could be classed as a basis for a bias claim.
[33]
The fact that an article about another similarly
named Sidhu being extradited to the U.S. was considered by the investigator was
not bias – it was a natural follow-up in an investigation. The article played
no role in the decision to refer the matter to the Director nor, more
importantly, any role in the final decision.
[34]
There is no basis for suggesting that the
Director can only impose sanctions on a person in the name used in the passport
application. Such an interpretation of jurisdiction (a matter to be decided on
a correctness standard of review) would frustrate the whole passport process
and limit enforcement against those using aliases or false names (see Mikhail
v Canada (Attorney General), 2013 FC 724).
C.
Charter Rights
[35]
The matter of Charter rights is a “red
herring”. The Applicant claims the sanctions for a fraudulent passport
application infringes his mobility rights as if he was entitled to exercise
those rights on the basis of a fraudulent document.
[36]
As a truck driver, there is no doubt that his
mobility rights are impacted and he is prevented from travelling out of the
country. In a modern world a passport is a critical document. However, the
Applicant’s argument against the sanctions is analogous to a person convicted
of a serious offence claiming that incarceration is impermissible because it
impacts his mobility rights.
[37]
Section 6 Charter rights are limited by a
refusal to issue a passport as Justice Décary found in Kamel v Canada
(Attorney General) (FCA), 2009 FCA 21, [2009] 4 FCR 449, and Justice Zinn
did in Abdelrazik v Canada (Minister of Foreign Affairs), 2009 FC 580,
[2010] 1 FCR 267.
[38]
In respect of a claim of violation of s 7
rights, I have previously commented on the possible tension or overlap between
s 6 and s 7 rights in Khadr v Canada (Attorney General), 2006 FC 727,
[2007] 2 FCR 218, at paragraphs 74 and 75:
74 However, Godbout, above, makes
clear that the section 7 right to liberty encompasses only those matters that
can properly be characterized as fundamentally or inherently personal such
that, by their very nature, they implicate basic choices going to the core of
what it means to enjoy individual dignity and independence.
75 The ability to travel where and when
one wants outside Canada does not strike at that basic value of individual
dignity and independence. I say this because the matter of choice to leave Canada is enshrined in s. 6 of the Charter. If one provision of the Charter
covers a specific freedom, other sections of the Charter should not be
presumed to cover the same freedom. There is a presumption against redundancies
in legislation. The denial of a passport, while limiting the right to leave Canada, is not tantamount to making one a prisoner in one's own country. As such, I would
not consider that the right to leave Canada constitutes a s. 7 right to
liberty.
[39]
In my view, while s 6 rights are engaged in this
case, absent a complete ban of passport services, s 7 rights are not engaged or
if engaged are otherwise subsumed in the s 6 issue.
[40]
To the extent that there has been a violation of
Charter rights by the imposition of the Director’s sanctions, I find
that they are saved by s 1.
[41]
In keeping with Justice Abella’s reasoning in Doré
v Barreau du Québec, 2012 SCC 12, [2012] 2 S.C.R. 395 [Doré], at
paragraphs 55-56, a full Oakes s 1 analysis may be replaced by a pared
down “proportionality” analysis in the administrative context.
[42]
Having found the decision and sanctions to be
reasonable, the severity of any interference with Charter rights is
mitigated by the availability of passport services in special circumstances.
This
conclusion is buttressed by the finding in Kamel v Canada (Attorney General), 2011 FC 1061, 397 FTR 42 (decided before Doré) that these
types of sanctions pass the full Oakes test.
[43]
Therefore, there is no Charter violation
not otherwise saved by s 1.
IV.
Conclusion
[44]
For these reasons, this judicial review will be
dismissed with costs.
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