Docket: T-1921-12
Citation: 2013 FC 1236
[UNREVISED ENGLISH CERTIFIED
TRANSLATION]
Ottawa, Ontario, this 10th day
of December 2013
PRESENT: The Honourable Mr. Justice Roy
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BETWEEN:
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Nathalie KRIVICKY
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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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REASONS FOR JUDGMENT AND JUDGMENT
[1]
CONSIDERING a decision
of Passport Canada, rendered on August 15, 2012, through which a passport application
made in the applicant’s name and a passport application made in the name of one
Cindy Bauwens were refused and, further, a period of refusal of services of
four years was imposed, retroactive to October 5, 2010, the date on which the
applicant attempted to obtain a passport under misrepresentation;
[2]
CONSIDERING that
these refusals were issued under paragraph 9(a) of the Canadian
Passport Order, SI/81-86 (the Order);
[3]
CONSIDERING the
application for judicial review submitted by the applicant, which is intended
only to remove the period of refusal of services;
[4]
CONSIDERING that the
application for judicial review is submitted under paragraph 18.1(4)(d)
of the Federal Courts Act, RSC 1985, c F-7 and that the applicant alleges
that the evidence was assessed in an unjust and arbitrary manner in coming to
the conclusion that a period of refusal of services of four years is clearly
unreasonable;
[5]
AND UPON the Court
reading the record and hearing the parties;
[6]
For the following reasons set out below, the
application for judicial review is dismissed.
[7]
All that is disputed before this Court is the
length of the period of refusal of passport services. Section 10.2 of the Order
allows for its imposition. Its text reads as follows:
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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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[8]
Essentially, the applicant claims concepts found
in sentencing matters to plead that the period of four years that was imposed
and that would expire next October is unreasonable. Thus, the applicant argues
that the duration is only based on principles of deterrence and exemplification
not taking into account the particular situation of the applicant who, we are
told, was asked to travel for work purposes. The applicant added that the principles
of proportionality and individualization of sentences should have ensured that
the period of refusal of passport services was shorter.
[9]
The appropriate standard of review in these matters
is reasonableness. Indeed, although the application for judicial review is made
under the Federal Courts Act, the principles of common law as to the standard
of review apply (Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12,
[2009] 1 S.C.R. 339). This standard of reasonableness is a deferential one in view
of the administrative tribunal’s decision. Thus, in Dunsmuir v New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190, (Dunsmuir) the Court described what
this reasonableness consists of in a now well-known passage:
[47] . . . In
judicial review, reasonableness is concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within a range
of possible, acceptable outcomes which are defensible in respect of the facts
and law.
[10]
It is the burden of the applicant to show that
the decision made was not reasonable. The Court must not attempt to substitute
its own views to those of the decision-maker.
[11]
The applicant did not show that the decision made
falls outside the range of possible, acceptable outcomes which are defensible
in respect of the facts and law. Faced with a decision that merits great deference,
more is required than raising principles used in criminal law relating to sentencing
(Slaeman v Attorney General of Canada, 2012 FC 641).
[12]
The applicant notes in passing that she was acquitted
of the criminal charges brought against her. These acquittals post-dated the decision
rendered by Passport Canada. They are not relevant in this case. In any event, I
cannot see how the acquittals have any incidence on the decision of imposing a period
of refusal of passport services. In my view, the decisions to refuse to issue
passports were fully defensible; the evidence is sufficient to find that the
applicant participated in a sham relating to the issuance of a passport. The enforcement
of criminal law by prosecution is governed by rules and a burden that are very different
from those that apply in administrative matters.
[13]
If the applicant were to need a passport in the
next 10 months, she could take the opportunity to obtain a limited-time passport
that is issued for humanitarian and compelling reasons. The decision letter also
states this very clearly.
[14]
I asked at the hearing why the applicant would
have needed a passport for her work. It is enough to say that the need for a
passport is not for the applicant’s principal use. The decision for which
judicial review is requested is perfectly reasonable in the Dunsmuir
sense.
[15]
In conclusion, the application for judicial
review is dismissed. The respondent requested that the application be dismissed
with costs. I consider that, in this case, nominal costs of $200 should be imposed
on the applicant.
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