Docket: T-841-15
Citation:
2016 FC 376
Ottawa, Ontario, April 5, 2016
PRESENT: The
Honourable Mr. Justice Annis
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BETWEEN:
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MARCO FONTAINE
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Applicant
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and
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THE ATTORNEY
GENERAL OF CANADA
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Respondent
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JUDGMENT AND REASONS
[1]
This is an application for judicial review
pursuant to section 18.1 of the Federal Courts Act (RSC, 1985, c F-7)
challenging a decision made by an officer of the Passport Program Integrity
Branch of Citizenship and Immigration Canada [the Passport Program Branch or
Agency] revoking the Applicant’s passport and refusing him passport services
until March 19, 2018. The Applicant is seeking an order quashing the decision
and having the matter returned for redetermination.
[2]
For the reasons that follow, the application is dismissed.
I.
Background
[3]
On October 8, 2010, the Applicant surrendered
his passport issued in February 2010 [the 2010 Passport] to the Sûreté du
Québec [SQ] authorities as a condition of his October 1, 2010 recognizance. The
SQ provided the Applicant with a receipt in return for his 2010 Passport.
[4]
On February 21, 2013, the Applicant submitted an
application to the Montréal Passport Office with a declaration indicating that
he last saw his 2010 Passport on July 1, 2012 and thus believed it was lost. As
a result of this application and declaration, the Montréal Passport Office
issued the Applicant a new passport on March 19, 2013 [the 2013 Passport].
[5]
On February 28, 2014, the SQ returned the
Applicant’s 2010 Passport to the Passport Program Branch and on October 9, 2014
the Passport Program Branch was informed that the Applicant had surrendered this
passport due to a condition.
[6]
On October 22, 2014, the Passport Program Branch
wrote a letter to the Applicant advising that he was being investigated in
relation to his 2013 Passport. The letter was returned to the sender on October
28, 2014.
[7]
A second letter, addressed to the Applicant, was
sent to the Applicant’s brother’s address on October 30, 2014 following a
conversation between a Passport Program investigator and the Applicant’s
brother indicating that they were living together. The letter served to inform
the Applicant that the Agency was investigating him regarding information that
led them to believe that he provided false or misleading information to obtain
his 2013 Passport. In this same letter, the Applicant was encouraged to provide
the Agency with countervailing information by December 14, 2014, if any
existed.
[8]
On January 19, 2015, the Applicant and an
investigator had a phone conversation at which point the Applicant acknowledged
having received the October 30, 2014 letter. He also indicated that he would
return the 2013 Passport, which he did on January 21, 2015.
[9]
On February 5, 2015, the Passport Program Branch
sent the Applicant a second letter noting that it had not received a response
to the October 30, 2014 letter and that a decision would be rendered shortly.
The final decision was issued on April 22, 2015.
II.
Impugned Decision
[10]
The Passport Program Branch ultimately found
that on a balance of probabilities there was sufficient information to conclude
that the Applicant obtained his 2013 Passport by means of false or misleading
information. Consequently, the Agency revoked the Applicant’s 2013 Passport
pursuant to paragraph 10(2)(d) of the Canadian Passport Order, SI/81-86
[the Passport Order]. The officer also imposed a five year period of refusal of
passport services beginning March 19, 2013 pursuant to section 10.2 of the
Passport Order.
III.
Legislative Framework
[11]
The following provisions of the Passport Order
are applicable in these proceedings:
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10 (1) Without limiting the generality of subsections 4(3) and (4) and
for the greater certainty, the Minister may revoke a passport on the same
grounds on which he or she may refuse to issue a passport.
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10 (1) Sans que soit limitée la généralité des
paragraphes 4(3) et (4), il est entendu que le ministre peut révoquer un
passeport pour les mêmes motifs que ceux qu’il invoque pour refuser d’en
délivrer un.
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(2) In addition, the Minister may revoke the passport of a person who
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(2) Il peut en outre révoquer le passeport de
la personne :
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(d) has obtained the passport by means of false or misleading
information; or
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d) qui a obtenu le passeport au moyen de
renseignements faux ou trompeurs;
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10.2 (1) If the Minister refuses to issue or revokes a passport, on any
grounds other than the one set out in paragraph 9(1)(g), he or she may refuse
on those same grounds to deliver passport services for a maximum period of 10
years.
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10.2 (1) Dans le cas où le ministre refuse de
délivrer un passeport ou en révoque un pour un motif autre que celui visé à
l’alinéa 9(1)g), il peut refuser, pour le même motif, de fournir des services
de passeport pendant une période d’au plus dix ans.
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IV.
Issues
[12]
The following issues arise in this application:
1.
Were the requirements for procedural fairness
breached?
2.
Was the decision to revoke the Applicant’s 2013
Passport and impose a five year ban on passport services reasonable?
V.
Standard of Review
[13]
Decisions rendered by the Passport Program
Branch are reviewed on the reasonableness standard: Dunsmuir v New Brunswick,
2008 SCC 9, para 47; Villamil v Canada (Attorney General), 2013 FC 686,
para 30. The appropriate standard of review for procedural fairness questions
is correctness: Canada (Minister of Citizenship and Immigration) v Khosa,
2009 SCC 12, para 43.
VI.
Analysis
A.
Were the requirements for procedural fairness
breached?
[14]
The threshold for procedural fairness is not high
as indicated by Justice Noël in Kamel v Canada (Attorney General), 2008
FC 338 at paragraph 72:
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?
[My emphasis.]
[15]
I find there is no breach of procedural fairness.
The Applicant acknowledged having received the October 30, 2014 letter. Any
suggestion that he did not receive the letter is contradicted by the fact that
he returned his 2013 Passport thereafter. Furthermore, he was advised after
returning the 2013 Passport that he should respond to the letter and did
nothing before the decision was issued two months later.
[16]
In addition, his submission that he forgot that
the 2010 Passport was turned in to the police as a condition of his
recognizance when he made his declaration on February 21, 2013 is entirely
lacking in plausibility to the point that it undermines any credibility that he
could offer to support his claim of lack of knowledge of the complaint against
him. Similarly, it is equally implausible that if his brother had received the
letter that he would not have advised the Applicant. I also find the submissions
of objectionable hearsay in the Minister’s affidavit are without merit in these
administrative proceedings, particularly against the background of the
Applicant’s conduct.
[17]
In any event, even if there were some concerns
about the failure of procedural justice, I agree with the Respondent’s
submission that the Applicant’s explanation of forgetting he turned in the
previous passport to the police would not affect the outcome, inasmuch as
sections 10 and 10.2 of the Passport Order do not require proof of the
intention to defraud or mislead: Mbala v Canada (Attorney General), 2014
FC 107, para 20.
B.
Was the decision to revoke the Applicant’s 2013
Passport and impose a five year ban on passport services reasonable?
[18]
Similarly, there is no issue that the Applicant provided
false or misleading information when he declared that his 2010 Passport was
lost, and thus the decision was reasonable given the evidence before the
officer, which included the following:
- A declaration dated February 21, 2013 signed by the
Applicant indicating that he had lost his 2010 Passport;
- An SQ email dated October 9, 2013 indicating that
the Applicant had surrendered his 2010 Passport to the SQ as a condition
of his recognizance;
- A copy of the Applicant’s recognizance dated
February 26, 2010 which included the requirement to turn in his passport
to ensure that he did not leave the country; and
- The physical 2010 Passport provided by the SQ.
[19]
I also find the imposition of a five year
refusal of passport services to the Applicant more than reasonable in the
circumstances as an exercise of the Passport Program decision-maker’s
discretion. It is to be noted that in fixing the time to run from when the
misstatement was made, the actual period of suspension of services is only
three years, when it could have been from the date the falsely obtained
passport was returned to the Passport Program Branch.
VII.
Conclusion
[20]
Accordingly, the application for judicial review
is dismissed.
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