Docket: T-881-15
Citation:
2016 FC 526
Ottawa, Ontario, May 10, 2016
PRESENT: The
Honourable Madam Justice Roussel
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BETWEEN:
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JASON JANE
LIPSKAIA
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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
[1]
The Applicant seeks judicial review of a
decision by the Director, Investigations Division, Passport Program Integrity
Branch of Citizenship and Immigration Canada [Passport Program], dated April
28, 2015, which revoked the Applicant’s passport and denied him access to passport
services until October 11, 2018. The Director concluded that there was
sufficient information to determine, based on a balance of probabilities, that
the Applicant had obtained his passport by providing false or misleading
information and that he stood charged with the commission of an indictable
offence.
[2]
For the reasons set out below, the application
for judicial review is granted.
I.
Background
[3]
On November 6, 2014, a Chief Investigator of the
Passport Program sent the Applicant a letter advising him that he was the
subject of an investigation as there was reason to believe that he had provided
false or misleading information to procure a Canadian passport in the assumed
identity of Jason Jane Lipskaia. The letter informed the Applicant that the
Passport Program’s investigation had revealed the following information:
a)
On November 5, 2011, the Passport Program
received information from Service Alberta indicating that the Applicant had
assumed the identity of Jason Jane Lipskaia and had successfully obtained an
Alberta identification [ID] card. As a result of this information, an
investigation was undertaken by the Passport Program to confirm the Applicant’s
true identity;
b)
Verifications in the Passport Program records
indicated that a passport was issued in the name of Jason Jane Lipskaia on
November 19, 2008, and that the Applicant had listed John Charles Wiese as
guarantor and Randall Robert Wiese as a reference in order to authenticate his
identity;
c)
An application for the renewal of the 2008
passport in the name of Jason Jane Lipskaia was submitted by the Applicant on
October 10, 2013. In support of this application, the passport issued in 2008
was provided. A new passport was issued to the Applicant on October 11, 2013
and was collected on October 15, 2013;
d)
Verifications in the Passport Program’s database
indicated that the Applicant had obtained two passports in the identity of
Randall Robert Wiese: one issued on May 23, 1991, and the second, on April 3,
1997. The applications in both cases listed John C. Wiese, father, as emergency
contact;
e)
On November 28, 2011, the Passport Program
attempted to send the Applicant correspondence but could not deliver it to the
address indicated in the 2008 passport application in the name of Jason Jane
Lipskaia. The Passport Program thus suspended its investigation;
f)
Further verifications were conducted with
external partners. These verifications led the Passport Program to determine
that it was highly probable that the Applicant’s true identity was Randall
Robert Wiese. Accordingly, on December 3, 2013, the Passport Program
invalidated the passport which was issued to the Applicant in 2013. This
invalidation resulted in the seizure of the passport on August 10, 2014, at
Pierre Elliot Trudeau International Airport;
g)
The Passport Program’s assessment, based on a
balance of probabilities and after consideration of the information, was that
the Applicant allegedly provided false or misleading information in order to
procure a passport in the assumed identity of Jason Jane Lipskaia, depicting
his photograph;
h)
The Royal Canadian Mounted Police [RCMP]
municipal detachment in Fort Saskatchewan, Alberta informed the Passport
Program that the Applicant had been charged with committing an indictable
offence under subsection 145(3) of the Criminal Code, RSC 1985, c C-46 [Criminal
Code], and a warrant for arrest had been issued by the province of Alberta
in the Applicant’s name on July 2, 2014.
[4]
The November 6, 2014 letter also invited the
Applicant to file information for consideration that would contradict or
neutralize the information presented to him, failing which, his file would be
forwarded to a decision-maker who would determine whether the information on
file was sufficient, on a balance of probabilities, to revoke the Applicant’s
passport under paragraphs 10(2)(d), 9(1)(b) and subsection 10(1)
of the Canadian Passport Order SI/81-86 [CPO] and to impose a period of
refusal of passport services pursuant to section 10.2 of the CPO.
[5]
By letter dated December 17, 2014, the
Applicant’s representative asserted that the Applicant was Jason Jane Lipskaia.
In support of this statement, the Applicant’s representative provided the
following documents as exhibits: (1) a copy of an Order of Justice Lee of the
Alberta Court of Queen’s Bench, issued on August 7, 2008, directing that the
Applicant’s request for a delayed registration of birth be accepted by the
Director of Vital Statistics; (2) a delayed registration of birth issued in the
name of Jason Jane Lipskaia; and (3) a statutory declaration by Jason Jane
Lipskaia in support of a delayed registration of birth. The Applicant’s
representative also asserted that his other client, John Charles Wiese, had
“signed as a grantor” because he knew the Applicant.
[6]
By letter dated January 23, 2015, a Senior Investigator
of the Passport Program advised the Applicant that the information provided by
the Applicant’s representative had been reviewed and that it had been noted
that the father’s information in the birth certificate issued in the name of
the Applicant was incomplete. Only a surname appeared on the birth certificate
and his given name and place of birth were unknown. The letter also informed
the Applicant that the Passport Program had reviewed the Applicant’s passport
history and that it appeared that the Applicant had obtained two Canadian
passports in the name of Randall Robert Wiese in 1991 and 1997. Further
verifications with external partners indicated that the Applicant’s identity
was more likely Randall Robert Wiese and not Jason Jane Lipskaia. The Senior
Investigator concluded that the Applicant’s submissions did not provide new
information and failed to neutralize the findings of fact contained in the
November 6, 2014 letter. He indicated that a Passport Program decision-maker
would determine whether the information on file, including the Applicant’s
statements, were sufficient to revoke his passport under paragraphs 10(2)(d),
9(1)(b) and subsection 10(1) of the CPO. The Applicant was advised that
the maximum period for refusal of passport services was five years from the
date of the incident or information leading to the decision.
[7]
In a decision dated April 28, 2015, addressed to
Randall Robert Wiese, but sent to the Applicant’s address and to his
representative, the Director of the Passport Program revoked the passport
issued to the Applicant in 2013 and imposed a period of refusal of passport
services until October 11, 2018. Based upon the same information and for the
same reasons as enunciated in the letters of November 6, 2014 and January 23, 2015,
the Director determined that there was sufficient information to support a
conclusion that Randall Robert Wiese had obtained the passport issued in 2013
in the assumed identity of Jason Jane Lipskaia by means of false or misleading
information and that he stood charged of the commission of an indictable
offence.
[8]
It is this decision which is the subject of this
application for judicial review.
II.
Analysis
[9]
On July 2, 2013, the Minister of Citizenship and
Immigration [Minister] became responsible for the Passport Program and the
entity known as Passport Canada ceased to exist. The Minister’s authority with
respect to the issuance, revocation and recovery of passports and refusal of
passport services is set out in the CPO, which was created by the Governor in Council
exercising Her Majesty in right of Canada’s royal prerogative over passports.
[10]
Pursuant to paragraph 10(2)(d) of the
CPO, the Minister may revoke the passport of a person who has obtained the
passport by means of false or misleading information. The Minister may also,
pursuant to paragraph 9(1)(b) and subsection 10(1) of the CPO, revoke a
passport of an applicant who stands charged in Canada with the commission of an
indictable offence. Additionally, the Minister is empowered under section 10.2
of the CPO to impose a period during which passport services will be refused
when there is a decision to refuse or revoke a passport.
[11]
In the present proceedings, the Applicant claims
that he is Jason Jane Lipskaia. The Respondent, on the other hand, claims that the
Applicant is in fact Randall Robert Wiese.
[12]
While the Applicant raised a number of issues in
his notice of application upon which he did not elaborate in his written
submissions, the Respondent maintains that the Applicant was afforded
procedural fairness and that the decision to revoke the passport and to refuse
passport services for five years was reasonable.
[13]
For the following reasons, I have determined
that the decision dated April 28, 2015 revoking the Applicant’s passport and
imposing a refusal of passport services until October 11, 2018, must be set
aside as there was a breach of procedural fairness in the process followed by
the Passport Program in the Applicant’s file. Given my conclusion, I will not
pronounce on whether the decision to revoke the passport and to deny passport
services was reasonable.
[14]
This Court has previously determined that issues
of procedural fairness are to be reviewed against the standard of correctness (Gomravi
v Canada (Attorney General), 2015 FC 431 at para 23; Kamel v Canada
(Attorney General), 2008 FC 338 at paras 62, 89 [Kamel];)
[15]
In Kamel, Justice Noël summarized the
requirements of procedural fairness in the context of the revocation of a
passport and the suspension of passport services. He wrote at para 72:
…[i]t 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.
[16]
A few years later, in Abdi v Canada (Attorney
General), 2012 FC 642, Justice Gleason provided further guidance on the
scope of disclosure required to meet the threshold of procedural fairness in
the context of the revocation of a passport. At para 21, she stated:
Counsel for the applicants argues that the
requirements of procedural fairness necessitated providing the applicants with
a copy of the entire file that was placed before the adjudicator. I do not
agree that procedural fairness requires disclosure of that extent in the
circumstances of determinations by Passport Canada under the Order. Rather, in
my view, what is required is that all material facts discovered by the Section
in its investigation be disclosed to the parties affected; in addition, any
documents which make any form of submission in support of the Section's
position that are provided to the adjudicator must also be disclosed to the
parties affected. Finally, the affected parties must be afforded a full
opportunity to respond, prior to the case being remitted to the adjudicator for
determination.
[17]
In Gomravi v. Canada (Attorney General),
2013 FC 1044 at para 32, Justice Mactavish reiterated that the duty of fairness
in passport revocation matters requires that all material facts discovered by
Passport Canada in its investigation be disclosed to the affected party, which
includes both inculpatory and exculpatory information. She found that Passport
Canada had breached procedural fairness as it had not provided the Applicant
with the facial recognition analysis and an email from Canada Border Services
Agency, which it had relied upon to determine that the Applicant had facilitated
the use of a passport by a different person.
[18]
In the present case, notwithstanding the absence
of argument by the Applicant on this issue, the Respondent nevertheless
submitted in its written and oral submissions that a review of the record
indicates that the Applicant was provided with the basis upon which the
Minister proposed to revoke the passport, that the Applicant was given the
opportunity to respond to the results of the investigation and that his
representative provided submissions in response. According to the Respondent,
all requirements respecting procedural fairness were met.
[19]
I disagree. While the November 6, 2014 and
January 23, 2015 letters provide the Applicant the basis upon which the
Minister proposed to revoke the passport, the letters do not disclose relevant
information and material facts which appear to have been considered by the
Director of the Passport Program in reaching his decision.
[20]
The Certified Tribunal Record [CTR] contains
several email exchanges between the Passport Program, Service Alberta and the
RCMP which relate to both Jason Jane Lipskaia and Randall Robert Wiese. The
content of these communications was not disclosed to the Applicant.
[21]
In particular, the CTR contains the results of a
facial recognition analysis based upon the Applicant’s photograph. The facial
recognition analysis results include hits for the 2008 and 2013 passports
issued to Jason Jane Lipskaia but do not include hits for the two passports
issued to Randall Robert Wiese in 1991 and 1997 (CTR, 222-232).
[22]
The CTR also contains an email from the RCMP
dated January 13, 2015, which states that several pieces of ID in the name of
Lipskaia were seized at Randall Robert Wiese’s residence during a search in
2013 and that he also uses the alias of Jason Sgfusion [CTR, 113).
[23]
Moreover, the CTR includes an incomplete and
undated investigative report of the Special Investigations Unit, Governance and
Program Integrity, at Service Alberta concerning Randall Robert Wiese, also
identified by the report as Jason Jane Lipskaia, who is accused and charged
with uttering a forged document, contrary to paragraph 368(1)(b) of the Criminal
Code (CTR, 108-109). According to the information in the investigative
report, the documents which are alleged to have been forged consist of an
application form for an Alberta ID card, an Alberta operator’s license and a
statutory declaration, all under the identity of Jason Jane Lipskaia. The
report states that in October 2010, an investigator with the Advanced Education
and Technology, Program Compliance and Investigations Unit contacted Service
Alberta’s Special Investigations Unit regarding the suspicious actions of a
client who alleged that he had completed a legal name change and wished to have
his education records transferred from Randall Robert Wiese to Jason Jane
Lipskaia, but refused to provide evidence of a name change. The report further
states that in email communications with the investigator, the client
identified himself under both identities. Upon investigation, the unit discovered
work records from a company where an employee applied as Randall Robert Wiese
but requested to be paid as Jason Jane Lipskaia. The unit also discovered that
at the time that an Alberta Operator’s license was issued to Jason Jane
Lipskaia in June 2006, there were Court Certificates in Alberta and British
Columbia disqualifying Randall Robert Wiese from operating a motor vehicle.
[24]
The CTR also contains an email exchange between
the RCMP, Service Alberta and the Passport Program between January 13 and 20,
2015, to the effect that Randall Robert Wiese pled guilty in Provincial Court
in Edmonton for utilizing the identity of Jason Jane Lipskaia (CTR, 80). This
particular allegation is inconsistent with other information found in the CTR
which indicates that the charge upon which Randall Robert Wiese is said to have
pled guilty is one of mischief in relation to the destruction or damage of
property under paragraph 430(1)(a) of the Criminal Code (CTR, 96).
[25]
None of the above information was provided to
the Applicant prior to the April 28, 2015 decision being made. Regardless of
whether the information was determinative in the Director’s final decision, in
my view, it was material to the investigation and in the case of the facial
recognition analysis results in November 2013, possibly exculpatory.
[26]
I am also puzzled by the apparent discrepancy
between the offence upon which the Applicant’s passport was revoked and the prevalence
of other indictable offences referred to in the CTR, which were not put to the
Applicant. While the Passport Program letters to the Applicant refer to a
charge under subsection 145(3) of the Criminal Code (failure to comply
with a condition of undertaking or recognizance), the CTR heavily refers to
other charges, such as subsection 57(2) (false statement in relation to a
passport), subsection 131(1) (perjury), and paragraph 368(1)(b) (use,
trafficking or possession of forged document) of the Criminal Code.
Neither the November 6, 2014 nor the January 23, 2015 letters allude to the
other charges before the Alberta Courts.
[27]
Given the nature of the information in the CTR,
the Applicant should have been afforded the opportunity to know the case to be
met and to respond to and challenge the information. As such, I find that the
Passport Program breached the Applicant’s right to procedural fairness.
[28]
I recognize that one could be tempted to
conclude that Randall Robert Wiese and Jason Jane Lipskaia are in fact the same
person on the basis of the information found in the CTR, in addition to the
statements made by the Applicant at the hearing regarding whether he knew
Randall Robert Wiese and why he was listed as a reference on the 2008 passport
application. However, the Applicant was entitled to procedural fairness and it
is not open to this Court to deny him that right. It is also not open to this
Court to speculate as to what the result might have been had the Applicant been
apprised of the information before the Passport Program.
III.
Conclusion
[29]
For the aforementioned reasons, the application
for judicial review is granted and the decision dated April 28, 2015 is set
aside. The matter is remitted for re-determination by a different
decision-maker.
[30]
At the hearing, I raised the issue of whether
the style of cause reflected the proper respondent. Counsel for the Respondent
agreed that the proper respondent in these matters is the Attorney General of
Canada pursuant to subsections 303(1) and (2) of the Federal Courts Rules,
SOR/98-106. The style of cause is amended accordingly.
[31]
I also raised the issue of costs with the
parties. The Applicant, who is self-represented, informed the Court of his
costs and the Respondent left it within the Court’s discretion. While I have
granted the application for judicial review on the basis that there has been a
breach of procedural fairness, the Applicant failed to make any meaningful
submissions with respect to the issues raised in his notice of application for
judicial review. Notwithstanding, the Respondent provided the Court with
representations on the issues of procedural fairness and the reasonableness of
the decision. For this reason, I have decided to exercise my discretion in the
circumstances and order no costs.
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