Date: 20171221
Docket :
T-293-17
Citation: 2017 FC 1178
[ENGLISH
TRANSLATION]
Ottawa, Ontario, December 21, 2017
PRESENT: The Honourable Madam Justice St-Louis
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BETWEEN:
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DJILANI, ZOHRA,
TRABELSI, SOUFIA, TRABELSI, ZEIN, TRABELSI, ASMA AND TRABELSI, MOHAMED
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Applicants
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and
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DEPARTMENT OF
FOREIGN AFFAIRS AND INTERNATIONAL TRADE
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Respondent
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JUDGMENT AND REASONS
I.
INTRODUCTION
[1]
This is an application for a judicial review of
the decision made on February 10, 2017, by the Minister of Foreign Affairs [the
Minister] refusing to recommend to the Governor in Council that the names of
the applicants be removed from the list in Schedule 1 of the Freezing Assets
of Corrupt Foreign Officials (Tunisia) Regulations SOR/2011-78 [the
Regulations]. The Minister essentially found that the applicants are still “politically exposed foreign persons” within the meaning
of section 2 of the Freezing Assets of Corrupt Foreign Officials Act, SC
2011, c.10 [the Act] and that the criteria set out in section 4 of the Act were
not met.
[2]
This decision by the Minister was in response to
the applicants’ application submitted on April 18, 2016, under
section 13 of the Act to have their names removed from this list. The relevant
sections of the Act, the Regulations and Schedule 1 of the Regulations are reproduced
in the appendix.
[3]
In support of this application for judicial
review, the applicants essentially submit that (1) the Act and the Regulations
violate their right to liberty and security guaranteed by section 7 of the Canadian
Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982,
being Schedule B of the Canada Act (U.K.), 1982, c. 11 [the Charter];
(2) the Act and the Regulations violate paragraph 2(e) of the Canadian Bill
of Rights, SC 1960, c.
44 [the Bill]; (3) the Minister’s decision is
unreasonable; and (5) the application process set out in section 13 of the Act
violates the principles of procedural fairness. Section 7 of the Charter and
section 2 of Bill are reproduced in the appendix.
[4]
The respondent (the Department or the Minister) essentially
responds that (1) the Act and the Regulations do not infringe on the right to
liberty and security guaranteed under section 7 of the Charter; (2) the Act and
the Regulations do not violate section 2 of the Bill; (3) the Minister’s decision
is reasonable; (4) the argument regarding jurisdiction is not justified; and
(5) the process for reviewing an application under section 13 of the Act
respects the principles of procedural fairness.
[5]
In short, and for the reasons that follow, the
Court dismisses this application for judicial review.
II.
FACTUAL BACKGROUND
[6]
The applicants, Zohra Djilani and four of her
children, Asma, Soufia, Zein and Mohamed Fares, are citizens of Tunisia and
members of the same family. They are, respectively, the wife and also the
children of Belhassen Trabelsi, who is also a citizen of Tunisia and the
brother of Leila Trabelsi, wife of the ousted president of Tunisia, Zine El
Abidine Ben Ali.
[7]
In January 2011, in the wake of the fall of Ben
Ali’s regime, Mr. Trabelsi, his wife and four of their children fled Tunisia,
arrived in Canada and claimed refugee status. The applicants based their fear
of returning to Tunisia mainly on the fact that they are members of the
Trabelsi “family,” which is known to be close to
the ousted president and, therefore, fear certain elements of the civilian
population and the government (decision by the Refugee Protection Division [RPD]
on February 19, 2016). Given the possibility of Mr. Trabelsi being
excluded under section 98 of the Immigration and Refugee Protection Act, SC
2001, c. 27 [IRPA], his refugee claim was filed separately from the
applicants’.
[8]
In March 2011, the government of Tunisia
issued an executive enactment and confiscated the assets of Leila Trabelsi’s
family, included the assets of her brother, Mr. Trabelsi, and those of other
family members.
[9]
In March 2011, the Act was passed in Canada.
Under section 4 of the Act, the Governor in Council may make any orders or
regulations to restrict or prohibit any activities in relation to a person’s
property and to seize, freeze or sequestrate any of the person’s property held
in Canada. A request in writing must first be made to the Government of Canada
by a foreign state, and the conditions provided for in section 2 of the Act
must be satisfied. These conditions also require that the person is, with
respect to the foreign state, a “politically exposed
foreign person.”
[10]
According to section 2 of the Act, a politically
exposed foreign person is a person who holds or has held one of the listed
offices or positions, including the position of head of state or head of
government (paragraph(a)). The definition includes “any
person who, for personal or business reasons, is or was closely associated with
such a person, including a family member” (emphasis added).
[11]
On March 23, 2011, the Governor in Council
issued the Regulations, in accordance with the aforementioned section 4. Mr.
Trabelsi’s name was included in Schedule 1 as a “politically
exposed foreign person.”
[12]
On December 16, 2011, the Regulations
were amended, and the applicants’ names were added to Schedule 1 as “politically exposed foreign persons.” They were
consequently prohibited from activities listed in subsection 4(3) of the Act
and section 3 of the Regulations.
[13]
In February 2012, the applicants submitted
an initial application to the Minister under section 13 and subsection 14(2) of
the Act to be excluded from the Regulations. They attached an application under
section 15 of the Act to exempt $178,040 from the Regulations. On
June 14, 2012, the applicants were notified that these applications
had been dismissed, and they did not challenge these decisions.
[14]
On December 17, 2012, the applicants submitted a
new application to the Minister under section 15 of the Act to have $109,680
exempted from the Regulations so that they could pay for certain living
expenses, including solicitor costs. On June 26, 2013, the Minister
dismissed this application. On June 27, 2014, this Court dismissed
the application for judicial review, finding that the Minister’s decision was
reasonable. The Court noted in passing that the father of the principal
applicant was not subject to the Regulations and that he had transferred funds
to the trust accounts of the applicants’ solicitors.
[15]
On January 30, 2015, the RPD excluded
Mr. Trabelsi, finding that he was subject to section F of Article 1 of the Refugee
Convention. Specifically, the RPD found that there were serious reasons for
considering that Mr. Trabelsi committed serious non-political crimes, such as
fraud against the government (section 121 of the Criminal Code of Canada [Criminal
Code]), fraud (section 380 of the Criminal Code) and laundering
proceeds of crime (section 462.31 of the Criminal Code). It is worth
noting at the outset that the RPD’s decision refers to wrongdoing characterized
by using dummies and shell companies to enable the Trabelsi/Ben Ali clan to
pocket vast sums of money.
[16]
On March 11, 2016, the Governor in Council
extended the validity period of the Regulations by five years effective
March 24, 2016.
[17]
On February 19, 2016, the RPD allowed
the applicants’ refugee claim, recognizing that they were Convention refugees
within the meaning of section 96 of the IRPA. The RPD found that the applicants
established that they had a reasonable chance of persecution due to their
family connections.
[18]
On April 18, 2016, the applicants filed a
new application under section 13 of the Act, under which a person who is
subject to an order or regulation may apply in writing to cease being the
subject of the order or regulation on the grounds that the person is not a
politically exposed foreign person. Consequently, if the Minister has
reasonable grounds to believe that the applicant is not a politically exposed
foreign person, she must recommend to the Governor in Council that the order or
regulation be amended or repealed, as the case may be, so that the applicant is
no longer the subject of the order or regulation.
[19]
In their application under section 13 of the
Act, the applicants essentially claimed that (1) they did not have any
involvement in Mr. Trabelsi’s affairs; (2) they were in no way accused of
economic crimes in any country; (3) they were suffering undue hardship because
their names remained on the list, the whole while they had been accepted as
Convention refugees (Exhibit P‑6 of the applicants’ file). Along with
their application, they submitted relatively extensive documentation of
approximately 150 pages, including, among other documents, two affidavits by
the principal applicant, the most recent of which is dated April 14, 2016,
statements from family members and a foreign lawyer, as well as records of
assets and transactions aboard. Furthermore, in her affidavit dated
April 14, 2016, the principal applicant confirmed that she was in
fact Mr. Trabelsi’s wife.
[20]
On February 10, 2017, the Minister
dismissed the application; that decision is the subject of this application and
is detailed below.
[21]
On May 31, 2016, Mr. Trabelsi was to be removed
from Canada, but he failed to report to the authorities and cannot be located.
III.
IMPUGNED DECISION
[22]
As previously noted, on February 10, 2017,
the Minister dismissed the applicants’ application and decided not to recommend
to the Governor in Council that their names be removed from the list in
Schedule 1 of the Regulations. The Minister also considered the application
based on the criteria in section 4 of the Act, but found that those criteria
were not met.
[23]
The Minister subsequently approved the
recommendations outlined in a memorandum and its Appendix A, both of which were
prepared for the Minister by the Deputy Minister of Foreign Affairs. The
reasons described in this memorandum and its Appendix A are therefore
consistent with the Minister’s decision, and it is appropriate to restate their
substance.
[24]
In the context of the application under section
13 of the Act, the Deputy Minister essentially considered that the applicants
were still “politically exposed foreign persons”
within the meaning of section 2 of the Act, since they themselves had asserted
their family ties in their application. The Deputy Minister found that,
consequently, there was no basis to allow the application under section 13 of
the Act.
[25]
On his review under section 4 of the Act, the
Deputy Minister noted that the Department had consulted Tunisian authorities, who
requested that the applicants’ names remain on the list. They noted that the
applicants’ family ties had not been broken, that they had unfairly benefitted
from their relationship with former president Ben Ali, that the order in
Tunisia issued in 2011 for the seizure and confiscation of Mr. Trabelsi’s and
the principal applicant’s property was still in effect and that the removal of
the applicants’ names from the list would likely negatively affect on bilateral
relations.
[26]
In Appendix A, in the section relating to
applications under section 13 off the Act, the Deputy Minister provided
evidence establishing that the applicants were still “politically
exposed foreign persons” within the meaning of section 2 of the Act.
[27]
Also in Appendix A, in the section dealing with
the issue of exempting the applicants from section 4 of the Act, the Deputy
Minister set out the relevant factors that should be considered.
[28]
On February 14, 2017, the Director of
Criminal, Security and Diplomatic Law [the Director] notified the applicants
that the Minister had decided not to recommend to the Governor in Council to
have their names removed from the list in Schedule 1 of the Regulations under
section 13 of the Act, having found that they remained “politically
exposed foreign persons” and that the Minister had decided not to
provide a recommendation pursuant to section 4 of the Act.
[29]
The Director notified the applicants that under
subsection 15(1) of the Act they could apply for a certificate exempting
property from the application of the order if the property was necessary to
meet their reasonable expenses.
IV.
PARTIES’ POSITIONS
A.
Applicants
[30]
The applicants argue that the reasonableness
standard applies to the Minister’s decision.
[31]
They raise five arguments: (1) the Act and the
Regulations infringe on their protected right to liberty and security under
section 7 of the Charter; (2) the Act violates paragraph 2(e) of the Bill; (3)
the decision to dismiss the application is not justified and intelligible and
the process and reasons are not transparent within the meaning of Dunsmuir v
New Brunswick, 2008 SCC 9 [Dunsmuir]; (4) the Minister did
not have the jurisdiction to renew the Regulations in March 2016; and (5) the
duty of fairness owed to them was breached.
(1)
The Act and the Regulations infringe on their
protected right to liberty and security under section 7 of the Charter.
[32]
The applicants referred to the Supreme Court’s
decision in Carter v Canada (Attorney General), 2015 SCC 5 [Carter]
and claimed that a two-step analysis must be done in order to establish a
violation of section 7 of the Charter. Thus, the applicants must first
establish that the Act interferes with “their life,
liberty or security of the person” and must then show that the
deprivation in question is not in accordance with the “principles
of fundamental justice.”
[33]
With respect to the first step, the applicants
submit that the Act and the Regulations infringe on their right to liberty and
security due to certain effects on their life, namely:
i.
They are not allowed to open a bank account in
their own name;
ii.
They are required to make all payments (rent,
tuition, groceries, etc.) through a third-party trust account
iii.
They are having trouble finding employment;
iv.
Their private life has been eroded as a result
of the media coverage of their immigration case;
v.
They are experiencing extreme suffering due to
stress and psychological distress;
vi.
They are suffering the humiliation of being
treated as “corrupt,” without any basis.
[34]
The applicants submit that there is infringement
on their right to liberty provided for under section 7 of the Charter if they cannot
“make fundamental personal choices free from state
interference” (Carter, at para 64) and that in this case
the state is interfering with their potential to make fundamental personal
choices, essentially by not allowing them to open bank accounts, and that not
having their own bank account affects their daily lives.
[35]
The applicants also argue that there is
infringement of their right to security under article 7—not their physical
security but their psychological integrity (Carter, at para 64). Specifically,
relying on the affidavits and unsworn letters of the principal applicant and
her daughters, the applicants claim that they are suffering extreme
psychological distress due to state interference. To the respondent, who points
to the lack of documentary evidence of this great distress, the applicants
respond that the affidavits are sufficient and that they should be presumed to
be true until proven otherwise (Maldonado v Canada (Minister of Employment
and Immigration), [1980] 2 FC 302 (FCA) at para 5).
[36]
With respect to the second step, the applicants
agree that sometimes it is necessary to enact laws that infringe on the rights
set out in section 7 of the Charter, but these infringements cannot depart from
the principles of fundamental justice according to the very language of section
7.
[37]
The principles of fundamental justice have been defined
by the case law, and infringements must not be arbitrary, overbroad or have
consequences that are grossly disproportionate to their object (Carter, at
para 72). The applicants therefore identify the object of the Act, which
is, essentially, to preserve allegedly misappropriated assets so that they are not
dispersed while a country emerges from an uncertain political situation,
completes criminal investigations and obtains the evidence required to support
a request for seizure and recover the stolen property.
[38]
According to the applicants, the Act is not
arbitrary, but it is overbroad, grossly disproportionate and vague.
[39]
Specifically, the applicants argue that the Act
is overbroad based on the parameters set out by the Supreme Court in Canada
(Attorney General) v Bedford, 2013 SCC 72 [Bedford] because (1)
section 2 could affect too many persons; (2) it prevents the applicants from
earning money in Canada; and (3) there is no mechanism to establish that the
property was acquired without a connection to the person subject to paragraphs (a)
to (j) of section 2 of the Act.
[40]
They argue that Act is completely disproportionate,
essentially because of the effects on their lives, when they are not accused of
anything.
[41]
Finally, the applicants also submit that the
wording of the Act is overly vague, since it does not provide legitimate notice
about what is prohibited and does not give clear requirements to individuals
charged with its application. Furthermore, it does not define the notions of “closely associated,” “family,”
“uncertain political situation” and “foreign state” with the result that the test that a
provision must constitute “an adequate basis for legal
debate” was not met (R v Nova Scotia Pharmaceutical Society,
[1992] 2 S.C.R. 606 [Nova Scotia Pharmaceutical] at p. 639).
(2)
The Act violates paragraph 2(e) of the Bill.
[42]
The applicants argue that the Act violates
subsection 2 of the Bill because the four conditions established by the case
law are met. Specifically, (1) the applicants are persons within the meaning of
paragraph 2(e); the Minister’s decision corresponds to a hearing involving the
rights and obligations of the applicants (Hassouna v Canada (Citizenship and
Immigration), 2017 FC 473 at para 73); (3) the process violates the
principles of fundamental justice essentially because the decision-maker is not
impartial or independent; and (4) the Act does not state that it shall operate
notwithstanding the Bill.
(3)
The decision to dismiss the application is not
justified and intelligible and the process and reasons are not transparent
within the meaning of Dunsmuir
[43]
The applicants submit that the decision is
unreasonable because (1) it is unreasonable to find that the applicants,
including minor children, are closely associated with president Ben Ali for
family reasons; (2) the evidence did not support a finding that the conditions
provided for in subsection 4(2) were met, in particular the condition set out
in paragraph 4(2)(b) regarding “internal turmoil, or an
uncertain political situation”; and (3) there is insufficient evidence
to establish that the applicants’ property constitutes diverted property, since
it allegedly emanates from the personal businesses of the principal applicant
or her father, who was acquitted of all accusations against him.
(4)
The Minister did not have the jurisdiction to extend
the Regulations in March 2016
[44]
The applicants argue that the Minister did not
have the jurisdiction to renew the Regulations in March 2016 because there was
no evidence that Tunisia faced an uncertain political situation in accordance
with paragraph 4(2)(b) of the Act.
(5)
The duty of fairness owed to the applicants was
breached.
[45]
The applicants submit that the impact of the decision
and the rights at stake militate in favour of a higher degree of procedural
fairness and that, in this case, their right to procedural fairness was not
respected because a decision by simple request is unfair. They did not have the
opportunity to challenge the evidence presented against them or to submit
evidence that they are not corrupt and that their property was lawfully
acquired.
B.
The Department (the respondent or the Minister)
[46]
In response to the applicants’ arguments, the
Minister submits that the reasonableness standard applies to the impugned
decision and that (1) the decision is reasonable; (2) the Act and the
Regulations are consistent with the Charter; (3) the Act and the Regulations
are consistent with the Bill; (4) the argument on jurisdiction is not
justified; and (5) the Minister’s decision is consistent with the duty of
procedural fairness.
(1)
The decision is reasonable
[47]
With respect to the allegation of a lack of
jurisdiction to extend the validity of the Regulations in 2016, the Minister
submits that the applicants are wrong about the issue of jurisdiction since it
is the Governor in Council who extended the validity of the Regulations, being
satisfied that the situation in Tunisia remained uncertain.
[48]
The Minister submits that the decision not to
recommend the removal of the applicants from the list of politically exposed
foreign persons is reasonable given their close family ties with the Ben Ali
clan, as well as the many financial benefits obtained through their connections
with former president Ben Ali. She argues that the Act is intended to prevent
money laundering using Canadian bank accounts of individuals with ties to the
Ben Ali regime and that identifying the applicants as politically exposed
foreign persons is thus warranted, regardless of their age, due to their continued
family ties.
[49]
The respondent also submits that the applicants
are able both to receive money from Tunisia and to pay for their daily
expenses. The respondent argues that opening bank accounts would enable the
applicants to deposit misappropriated funds in them, which would be contrary to
the objectives of the Act and that the Minister’s decision is therefore
justified in order to serve the objectives of the Act.
(2)
The Act and the Regulations are consistent with
the Charter
[50]
The Minister repeats the two steps of the
analysis identified by the applicants and argues that the Act and the
Regulations do not limit their right to life, liberty and security and that,
moreover, it cannot be determined that the Act is inconsistent with the
principles of fundamental justice.
[51]
With respect to the first step, the respondent
argues that section 7 of the Charter protects neither economic rights (except
in rare exceptions) nor the right to do business whenever one wishes or to
generate income by any means. As a result, the respondent argues that being
forced to transit money through a lawyer’s trust accounts does not violate
section 7 of the Charter.
[52]
The respondent also submits that sections 5 and
15 of the Act are meant to relax the effect of the restrictions on persons
subject to the Regulations to avoid arbitrariness. The respondent argued that
these sections must be considered in an analysis under section 7 of the
Charter, which the applicants failed to do in their argument.
[53]
The respondent submits that it cannot be
established that the Act is inconsistent with the principles of fundamental
justice in light of the test set out in Carter. Indeed, the parties
agree that the Act is not arbitrary. However, the respondent argues that the
Act is also not overbroad, as argued by the applicants, since there is a rational
connection between the definition “politically exposed
foreign persons” and the objective of the Act, which is to prevent
misappropriation through money laundering.
[54]
Similarly, the respondent submits that the Act
does not have any disproportional impact given that, on one hand, the
applicants did not submit any evidence of the Act’s alleged impact on them and,
on the other hand, the effects have a rational basis. On this point, the
respondent notes that the RPD found that it was highly probable that Mr.
Trabelsi committed various fraud-related crimes and that it was necessary that
the members of his immediate family be included as politically exposed foreign
persons to prevent fraudulently acquired money from being deposited in Canadian
bank accounts belonging to them.
[55]
Finally, the respondent argues that the wording
of the Act is clear. The wording “closely associated”
is easy to understand, and the Trabelsi family was closely associated with
president Ben Ali as a result of its family connections. As for the term “family,” the respondent asserts that it is not
defined in the Act because it is an example. It refers to a person who is “closely associated […], including a family member.”
With respect to the term “uncertain political
situation,” the respondent submits that the section cited by the
applicants deals with evidence required to reach the conclusion that such a
situation exists and not the vagueness of the term. Finally, the Act clearly
defines “foreign state.”
(3)
The Act and the Regulations are consistent with paragraph
2(e) of the Bill.
[56]
The respondent submits that paragraph 2(e) of
the Bill does not apply because the third condition established by the
jurisprudence for its application is not met, since the Act complies with the
duty to hold an impartial hearing. The respondent argues that, in a decision
under section 13 of the Act, Parliament chose an informal administrative
decision-making process. The respondent acknowledges that the decision is
important for the applicants, but states that the Act contains provisions whose
purpose is to reduce the impact on the individuals affected. The respondent
submits that, while the Act does not provide for a right of appeal, it does not
limit the number or frequency of applications that an applicant may submit
under article 13. The respondent argues that the duty of procedural fairness
under section 3 is limited and that it does not require an oral hearing.
[57]
The respondent rebuts that applicants’
allegation that the Minister could not make a decision with respect to them due
to a reasonable apprehension of bias. The respondent submits that such a
finding would go against the operation of government and that the applicants
did not submit any evidence to support their allegation.
(4)
The decision is consistent with the duty of
procedural fairness
[58]
The respondent argues that the applicants
submitted a record containing numerous documents, in accordance with the
procedures, and that this procedure is sufficient based on the arguments
relating to paragraph 2(e) of the Bill.
V.
ISSUES
[59]
According to the parties’ submissions, the Court
must first establish the standard of review applicable to the review of the
Minister’s decision and determine whether:
•
Sections 2 and 4 of the Act and section 4 of
Regulations violate the right to liberty and security guaranteed by section 7
of the Charter;
•
Sections 4 and 13 of the Act violate paragraph 2(e)
of the Bill;
•
The Minister’s decision-making process complies
with the duty of procedural fairness;
•
The Minister’s decision is reasonable; and
•
The Regulations were validly extended in March
2016.
VI.
ANALYSIS
A.
Standard of review
[60]
The Court agrees with the parties and will
review the Minister’s decision on the reasonableness standard (Dunsmuir v
New Brunswick, 2008 SCC 9 [Dunsmuir] at para 62; Djilani
v Canada (Foreign Affairs and International Trade), 2014 FC 631 at paras 12–16.
[61]
There is uncertainty as to the standard of
review that applies to assessing compliance with the duty of procedural
fairness, but the Court is prepared to use the most onerous standard, i.e. the
correctness standard (El-Helou v Canada (Courts Administration Service),
2016 FCA 273 at para 43).
B.
Sections 2 and 4 of the Act and section 4 of
Regulations violate the right to liberty and security guaranteed by section 7
of the Charter
[62]
As the parties have explained, an analysis
under section 7 of the Charter involves two steps. It must first be assessed
whether the provisions of the Act and the Regulations infringe on the life,
liberty or security of the person. If so, then it must be determined whether
this infringement is consistent with the principles of fundamental justice (Canada
(Attorney General) v PHS Community Services Society, 2011 SCC 44 at para 84;
Carter, at para 55).
[63]
In this case, since the applicants argue that it
is precisely their right to liberty and security that is restricted, the Court
will assess these two concepts.
(1)
Right to liberty and security
[64]
It is important to note that the applicants
submit that their right to liberty is being violated essentially because they
cannot open or operate bank accounts in their own names, which requires them to
forward all payments (rent, tuition, groceries, etc.) through a third-party,
makes it difficult to find and maintain employment and also makes certain
activities difficult, such as buying groceries (paragraphs 29 and 32 of the
applicants’ memorandum).
[65]
Thus, the inability to open a personal bank
account allegedly infringes on the applicants’ mental liberty, as opposed to
their physical liberty, preventing them from making “fundamental
personal choices free from state interference” (Carter, at para
64).
[66]
The Court cannot
agree with the applicants’ argument, as it cannot find that operating a bank
account constitutes a “fundamental personal choice”
according to the meaning developed in the case law. Specifically, the Supreme
Court’s decisions involving the right to freedom deal with personal choices
such as physician-assisted dying in dignity (Carter), a woman’s choice
to carry a fetus to term without threat of criminal sanction (R v
Morgentaler, [1988] 1 SCR 30 [Morgentaler]), a person’s place
of residence (Godbout v Longueuil (Ville), [1997] 3 S.C.R. 844), a parent
making decisions on behalf of children regarding their education and health (B
(R) v Children’s Aid Society of Metropolitan Toronto – [1995] 1 S.C.R. 315). The
Court simply cannot find that operating a bank account in the applicants’
situation constitutes a fundamental personal choice involving the liberty
guaranteed by section 7 of the Charter.
[67]
The applicants argue that their right to
security guaranteed by section 7 is violated because the Act undermines their
psychological integrity, causing them hardship due to stress and humiliation,
in particular as a result of the media coverage of their situation. They blame
these difficulties on the fact that they are identified as politically exposed
foreign persons.
[68]
The Court notes that the right to security of
the person guaranteed under section 7 is at issue if the psychological harm
results from state action and if it is serious. In Blencoe, it was
determined that the incessant publicity did not result from government action,
but rather from third parties, including the media (Blencoe v British
Columbia (Human Rights Commission), [2000] 2 S.C.R. 307, 2000 SCC 44 at para 59).
In this case, it has not been proved that the media attention and the insults
directed at the applicants are attributable to their designation as “politically exposed foreign persons” and may instead
be a result of their ties to Ben Ali’s deposed government. Furthermore, it is
known that Mr. Trabelsi was found guilty of fraud in Tunisia and excluded by
the RPD.
[69]
With respect to the seriousness of the psychological
distress raised by the applicants, it is, at the very least, difficult to
assess, since the applicants did not submit any medical, objective or
documentary evidence on this matter.
[70]
Furthermore, the respondent correctly argues
that “economic rights” are only protected by
section 7 of the Charter if they fundamentally impact a person’s life and
security. In this case, the applicants have not proved that they are in
financial difficulty, and the Act allows them to apply to have property
exempted from the Regulations under section 15 of the Act, which they have not
done in this case. On the contrary, they agree that they are able to pay their
living expenses using the funds deposited in their lawyer’s trust account.
[71]
The applicants also claim that they are unable
to find employment as a result of their designation, but they did not submit
any evidence to support this argument. They claim that they would be unable to deposit
wages. However, subsection 5(1) of the Act allows persons subject to the Regulations
to apply for a permit in order to carry out a prohibited or restricted
transaction, and the applicants have not availed themselves of this remedy.
[72]
The Court therefore finds that the Act and the
Regulations do not infringe on the applicants’ right to liberty and security
guaranteed by section 7 of the Charter.
(2)
Principles of fundamental justice
[73]
In the event that the Court errs on the first
stage and that the Act and the Regulations infringe on the applicants’ right to
liberty and security, it becomes necessary to consider whether the infringement
is consistent with the principles of fundamental justice. Thus, the Supreme
Court has established that the Act and the Regulations must not be arbitrary,
overbroad or have consequences that are grossly disproportionate to their
object (Rodriguez v British Columbia (Attorney General), [1993] 3 S.C.R. 519,
at p. 584; R v Beare, [1988] 2 S.C.R. 387, at p. 401; Morgentaler,
at p. 53; Singh v Minister of Employment and Immigration, [1985] 1 SCR 177,
at p. 212)
[74]
First, as the parties agree, the Act and the
Regulations are not arbitrary. They are meant to fight corruption, protect
potentially misappropriated property or funds when a state is faced with an
unstable political situation, until the situation normalizes, and that state
carries out investigations and obtains the evidence necessary to recover the
stolen assets where appropriate. Thus, the purpose of the Act and the
Regulations is to prevent potentially ill-gotten funds from being deposited in
Canadian financial institutions.
[75]
Contrary to the applicants’ argument, the Court
is satisfied that the Act and the Regulations are not overbroad because they
apply to actions that are connected to their purpose. (Bedford, at para 112).
The definition of politically exposed foreign person in section 2 is consistent
with the purpose of the Act set out in the previous paragraph.
[76]
The applicants argue that the definition is
overbroad and should only include persons who hold the offices or positions included
in paragraphs 2(1)(a) to (j) of the Act. As stated by the respondent, making
such a finding would seriously undermine the scope of the Act, since it would
not make it possible to identify persons not holding official positions within
the state government and could therefore be easily bypassed. It seems justified
that the Act allows individuals who are closely associated with the persons
subject to paragraphs (a) to (j) to be identified. In this case, it is clear
that the applicants are closely associated with the Ben Ali clan due to their
family’s connections and influence. Furthermore, the applicants availed
themselves of these family connections, and they refugee claim was accepted
based on these family connections that the possible consequences that they
would entail for the applicants were they to return to Tunisia.
[77]
The applicants also argue that section 3 of the
Regulations is overbroad, preventing them from earning money in Canada because
they would not be able to deposit paychecks into a personal account. However,
as noted above, subsection 5(1) of the Act provides for the opportunity to apply
for a permit.
[78]
Nor can the Court find that the Act and its
Regulations have consequences that are grossly disproportionate to their
purpose. Identifying the applicants as politically exposed foreign persons
appears necessary mainly to prevent the laundering of ill-gotten funds and to
protect property at the request of a foreign state. It cannot be found that the
effects of the Act on their liberty and security are so disproportionate that they
cannot have a rational basis. At paragraph 120 of Bedford, the Supreme
Court gives an example of grossly disproportionate consequences:
This idea is captured by the hypothetical of
a law with the purpose of keeping the streets clean that imposes a sentence of
life imprisonment for spitting on the sidewalk. The connection between the
draconian impact of the law and its object must be entirely outside the norms
accepted in our free and democratic society.
[79]
In light of this example, the Court cannot find
that such disproportionality exists. The effects of the Act and the Regulations
on the applicants cannot be qualified as draconian. Thus, the Court is
satisfied that the infringement, if it exists, is consistent with the
principles of fundamental justice.
[80]
In the event that the Act and the Regulations
violate section 7 of the Charter, the Crown must establish that the
infringement on the rights is warranted under the first article of the Charter,
because the purpose of the Act is pressing and substantial and the means chosen
are proportionate to that purpose. Neither the applicants nor the respondent
submitted evidence on this point, but the Court can nonetheless conclude from
the parties’ arguments that the purpose of the Act is pressing and substantial
and that the means chosen are proportionate to its purpose.
[81]
Nor can the Court agree with the applicants’
argument that subsection 2(1) of the Act is vague and, therefore, violates the
principles of fundamental justice under section 7 of the Charter. The applicants
submit that the terms “closely associated,” “uncertain political situation,” “family” and “foreign state”
are vague and make this provision unclear to the point of being
unconstitutional.
[82]
The test for establishing that a law is vague is
very high. Thus, a law will be found unconstitutionally vague if it so lacks in
precision as not to give sufficient guidance for legal debate (Nova Scotia
Pharmaceutical, at p. 609). The test has not been applied often by the
courts, which also recognize that statutory provisions must be sufficiently
broad in order to apply to various situations (R v Hall, [2002] 3 S.C.R. 309,
2002 SCC 64).
[83]
The terms that the applicants deem to be unclear
or vague are actually easy to understand and intelligible. “Foreign state” is clear and is even defined in the
Act; “family” is provided only as an example in
the definition in section 2 but is nonetheless intelligible, and the applicants
themselves used in it in their refugee claim. “Closely
associated” and “uncertain political situation”
are clear enough to be intelligible and understandable.
[84]
Consequently, the Court finds that the Act and
the Regulations do not infringe on the applicants’ right to liberty and
security guaranteed by section 7 of the Charter.
C.
Sections 4 and 13 of the Act violate paragraph 2(e)
of the Bill
[85]
The applicants submit that sections 4 and 13 of
the Act violate paragraph 2(e) of the Bill, denying them the opportunity to a
fair hearing. Their first argument is that the four recognized basic conditions
(Canadian National Railway Company v Canada (Attorney General), 2007 FC 371
at para 22) are met and that paragraph 2(e) applies to the Minister’s
decision-making process. These four conditions are as follows:
1.
The applicant must be a “person”
within the meaning of paragraph 2(e)
2.
The arbitration process must constitute a “hearing […] for the determination of [the applicant’s]
rights and obligations”;
3.
The arbitration process must be found to
violate “the principles of fundamental justice”;
4.
The alleged defect in the arbitration process
must arise as a result of a “law of Canada”
which has not been expressly declared to operate notwithstanding the Canadian
Bill of Rights.
[86]
The first condition is met since the applicants
are persons. The respondent does not challenge the applicants’ position that
the second condition is also met, and, therefore, the Court will not rule on
that issue. Finally, the fourth position is also met.
[87]
However, the applicants did not satisfy me that
the third condition was met and that the process provided for under the Act
does not respect the requirement of a fair hearing according to the principles
of fundamental justice.
[88]
The Court examines this condition by considering
that, in accordance with paragraph 2(e) of the Bill, the federal authority must
“act fairly, in good faith, without bias and in a
judicial temper” and must give a party the opportunity to adequately
state its case (Duke v The Queen, [1972] S.C.R. 917 at page 924). Furthermore,
it is established that the degree of duty of procedural fairness depends on the
context. The Supreme Court developed a non-exhaustive list of factors that may
be taken into account in determining the content of the duty of fairness: (1) the
nature of the decision being made and process followed in making it; (2) the
nature of the statutory scheme and the terms of the statute pursuant to which
the body operates; (3) the importance of the decision to the individual or
individuals affected; (4) the legitimate expectations of the person challenging
the decision; (5) the choices of procedure made by the agency itself (Baker v
Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at p. 819
[Baker]).
[89]
The applicants first argue that the Minister is
biased because she is acting as a “judge” to
decide their application and as a “party” as a
member of Cabinet. However, it does not seem abnormal or unusual for Parliament
to grant such decision-making authority to a minister, and her status as a
minister does not result in an apprehension of bias. Furthermore, the
applicants did not submit any evidence of the Minister’s alleged bias, and that
Court cannot support their proposition.
[90]
The applicants also argue that the level of
procedural fairness should be high given the importance of the decision for
them, indicating that this importance lies in the fact that the decision
involves the loss of numerous fundamental rights. However, the Court has
already found that the legislative scheme does not infringe on the applicants’
right to liberty and security guaranteed by section 7 of the Charter, and no
other fundamental right is being raised.
[91]
However, even if the Court accepts that the
decision is of great importance to the applicants, whose assets are frozen, the
legislative scheme allows for some flexibility since it also gives affected
persons the opportunity to apply for permits or certificates under sections 5
and 15 of the Act, remedies of which the applicants did not avail themselves in
this case. As the respondent also argued, there is no possibility to appeal the
Minister’s decision, but the applicants can submit an unlimited number of
applications for exemptions.
[92]
In considering an application under section 13
of the Act, the Minister must determine whether the applicant is a politically
exposed foreign person according to the Act by assessing if that person held
one of the offices or positions listed in paragraphs (a) to (j) or if he is
closely associated with a person whose held such an office or position. Overall,
the scope of the analysis is limited.
[93]
Moreover, section 13 does not provide for any
procedural requirements, except for issuing a notice to the applicant. This is
an administrative process that therefore does not involve the same fairness and
impartiality requirements as a judicial process.
[94]
While it is true that the applicants submitted a
voluminous record to the Minister, it did not contain any evidence to rebut the
decision that they are “politically exposed foreign
persons”; instead, they confirmed their family connections with the
Trabelsi clan in their application.
[95]
The Court cannot find that the principles of
procedural fairness have not been met.
D.
The Minister’s decision-making process complies
with the duty of procedural fairness
[96]
The applicants submit that the Minister’s
decision-making process violates procedural fairness because they only had the
opportunity to apply in writing and were not given a formal hearing. However,
they had the “opportunity to produce full and complete
written documentation” (Baker, at p. 819). The Court
considers the factual background, the definition of politically exposed foreign
persons provided for in the Act, the fact that Tunisia asked the Government of
Canada to keep the applicants on the list, the fact that the applicants
confirmed their family connections in their application and they had the
opportunity to submit an extensive record. Consequently, given the wording of
the sections in question and given the fact that the applicants’ credibility is
not in issue, I find that a formal hearing is not necessary and that the
process of reviewing an application submitted to the Minister under section 13
meets the duty of procedural fairness.
E.
The Minister’s decision is reasonable
[97]
Given the legislative scheme involved and the
factual background, the Court finds that the Minister’s decision to refuse to
recommend to the Governor in Council to remove the names of the applicants from
the list of politically exposed foreign persons under section 13 of the Act is
reasonable.
[98]
The applicants do in fact appear to be “closely associated” to persons holding an office or
position set out in section 2 given their family connections with ousted
president Ben Ali and their business ties with Mr. Trabelsi. The applicants’
age cannot be a reason to exclude them from the definition, especially
considering the Trabelsi clan’s recognized propensity to use dummies.
Furthermore, according to the evidence on file, Canadian authorities consulted
their Tunisian counterparts, who also confirmed that the ties between the
applicants and Mr. Trabelsi were intact and that the Trabelsi family had
profited from numerous financial benefits and privileges as a result from its
close ties to former president Ben Ali. The RPD reached the same conclusion in
its decision on Mr. Trabelsi.
[99]
If the applicants ceased to be identified as
politically exposed foreign persons, they would be able to open bank accounts
in Canada and receive potentially ill-gotten funds. They could also carry out
financial transactions involving property in Canada that could eventually end
up in Mr. Trabelsi’s hands. Their designation as “politically
exposed foreign persons” is warranted in respect of the objectives of
the Act.
[100]
The applicants also claim that the Minister’s
decision is unreasonable because the property that they want to access was
legitimately acquired. However, it is not the Minister’s responsibility to
verify the lawfulness of the property. The Act was enacted to enable the states
faced with an uncertain political situation to ask Canada to freeze property
that may have been misappropriated by certain individuals until the situation
has been restored and that state can obtain evidence and carry out
investigations of these persons or property. It seems reasonable that the
Minister did not assess the lawfulness of the property when making her decision
regarding the application submitted under section 13 of the Act.
F.
Extension of the Regulations in March 2016
[101]
The applicants next argue that the Minister’s
decision in March 2016 to extend the validity period of the Regulations for
five years was unreasonable because she did not have evidence that Tunisia was
in an uncertain political situation. However, the respondent properly noted
that it was not the Minister but rather the Governor in Council who extended
the Regulations by adopting an order on March 11, 2016. Furthermore, in the
recitals of the Regulations Amending the Freezing of Assets of Corrupt
Foreign Officials (Tunisia and Egypt) enacted by order on March 11, 2016,
the Governor in Council also noted that he was satisfied that there “continues to be internal turmoil, or an uncertain political
situation, in Tunisia” (Canada Gazette, Part II, Vol. 150,
No. 6, SOR/DORS/2016-41 at p. 563).
VII.
CONCLUSION
For these reasons, the Court dismisses the application for judicial
review.
JUDGMENT in T-293-17
THE COURT’S
JUDGMENT is that:
1.
The application for
judicial review is dismissed;
2.
No costs are awarded.
“Martine St-Louis”
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