Docket: A-102-14
Citation:
2014 FCA 195
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CORAM:
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PELLETIER J.A.
STRATAS J.A.
WEBB J.A.
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BETWEEN:
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ATTORNEY GENERAL OF CANADA
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Appellant
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and
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JOSE S. DIAS
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Respondent
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REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario, on September 10, 2014).
STRATAS J.A.
[1]
The Attorney General appeals from the judgment
dated January 21, 2014 of the Federal Court (per Justice Phelan): 2014
FC 64. The Federal Court granted Mr. Dias’ application for judicial review and
quashed the decision of the Director of the Investigation Division of the
Safety Bureau of Passport Canada.
[2]
Relying upon Canadian Passport Order,
SI/81-86, the Director decided to deny Mr. Dias passport services for five
years because he knowingly organized, induced, aided or abetted his wife to
travel using a counterfeit New Zealand passport. Mr. Dias was using a valid
Canadian passport.
[3]
Under paragraph 10(2)(b) of the Canadian
Passport Order, Passport Canada may “revoke the
passport of a person who…uses the passport to assist him in committing an
indictable offence in Canada or any offence in a foreign country or state that
would constitute an indictable offence if committed in Canada.” When the
conditions in that paragraph apply, Passport Canada has the power under section
10.3 to deny a person passport services for a period of time.
[4]
Before he made his decision, the Director wrote
Mr. Dias setting out his view of the facts and proposed course of action. The
Director invited Mr. Dias to respond. In this letter, the Director did not put
to Mr. Dias the indictable offence he had allegedly committed.
[5]
However, in another letter dated November 2,
2011, the Director did inform Mr. Dias of the offence, namely the offence under
section 117 of the Immigration and Refugee Protection
Act, S.C. 2001, c. 27: “knowingly, organiz[ing],
induc[ing], aid[ing] or abet[ting] the coming into Canada” of a person, Mr.
Dias’ wife, who is “not in possession of a…[valid] passport.”
[6]
It follows that the Federal Court was in error
when it found (at paragraph 18) that the Director acted in a procedurally unfair
manner by failing to put the alleged offence to Mr. Dias for response. It was
put to him.
[7]
However, we note that the facts relied upon by the
Director could not lead to his conclusion that Mr. Dias committed the offence
under section 117 of the Immigration and Refugee Protection Act. The Federal
Court accurately summarized those facts at paragraph 8 of its reasons. None of
those positively support a finding that Mr. Dias – as opposed to his wife – used
his passport to knowingly aid, organize, induce or abet his wife to come
to Canada with a counterfeit passport contrary to the section. Only by unreasonably
assuming guilt by association could the Director conclude from those facts
alone that Mr. Dias committed the section 117 offence.
[8]
The Director did disbelieve what Mr. Dias told
him in response to his letter of invitation to make submissions. But disbelief
in what Mr. Dias said, without more, does not support a finding that Mr. Dias himself
committed the section 117 offence, i.e., that all elements of the section
117 offence are present. In some circumstances, disbelief might cause the
Director to have reasonable grounds to believe or to develop suspicions that a section
117 offence has been committed. But the Canadian Passport Order does not
allow the Director to act on the basis of reasonable grounds or suspicions.
[9]
The appellant urged upon us the very great
importance of preventing and redressing the misuse of passports and maintaining
the integrity of the passport system. That is true: see, e.g., Kamel
v. Canada (A.G.), 2008 F.C. 338 at paragraph 41. But regulatory powers such
as this can be exercised only to the extent authorized and permitted by law.
[10]
For the foregoing reasons, we agree with the
result reached by the Federal Court. Therefore, despite the able submissions of
Ms. Tausky, we will dismiss the appeal with costs.
"David Stratas"
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