Date: 20120525
Docket: T-1337-11
Citation: 2012 FC 641
Ottawa, Ontario, May 25,
2012
PRESENT: The Honourable Madam Justice Gleason
BETWEEN:
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NSAEIF SLAEMAN AND AMAL ROUKAN
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Applicants
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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]
This
is an application for judicial review from the decision of an adjudicator at
Passport Canada, issued on
July 19, 2011, in which the adjudicator revoked the applicants’ passports and
refused passport services to them for five years. The adjudicator concluded on
the balance of probabilities that the applicants had allowed two other
individuals to use their Canadian passports and that the applicants had
provided false information in support of their replacement applications. The
impostors in question were apprehended in Dubai, on January
15, 2010, and were in possession of the applicants’ Canadian passports and
Canadian citizenship cards. The impostors (who were Iraqi citizens) were
attempting to use this documentation to board a flight from Dubai to Toronto. The
impostors had paid $10,000 U.S., each, for the applicants’ passports.
[2]
Following
the seizure of the applicants’ passports from the impostors, Passport Canada carried out
an investigation and eventually made a recommendation to the adjudicator to
revoke the applicants’ passports and impose a five-year ban on their obtaining
another Canadian passport. The adjudicator accepted the recommendation in his
decision of July 19, 2011. In this application for judicial review, the
applicants assert that the adjudicator’s decision should be set aside due to
flaws in both Passport Canada’s investigation and the adjudicator’s decision.
[3]
More
specifically, in their Memorandum of Fact and Law, the applicants raise several
grounds of challenge, arguing that:
1.
Passport
Canada’s
investigation was incomplete and flawed;
2.
Passport
Canada engaged in
an improper assessment of the evidence;
3.
The
adjudicator’s conclusions were arrived at without a proper (or any) evidentiary
basis;
4.
The
investigative branch of Passport Canada concluded that the
applicants were complicit in allowing the impostors to use their passports at
the beginning of the investigation and prior to receipt of all of the
information; and
5.
The
evidence does not support a finding on a balance of probabilities that the
applicants were parties to the use of the passports by the impostors.
[4]
During
the hearing, counsel for the applicants focussed his submissions on the
assertions that there had been a breach of procedural fairness and that the
Passport Canada investigators were biased.
[5]
In
terms of procedural fairness, he asserted that the applicants could not
understand written English and argued that this inability should have been
apparent to Passport Canada, which, accordingly, ought to have
convened the applicants to an interview or offered them translation services.
He also asserted that there were material facts and evidence contained in the
record before the adjudicator which were not disclosed to the applicants. Counsel
also suggested that the procedure before the Court resulted in unfairness to
his clients, as the affidavit filed by the respondent placing the tribunal
record before the Court was signed by a paralegal, who could not be
cross-examined in any meaningful way. The applicants allege that they ought to
have had the ability to cross-examine the Passport Canada investigators
regarding their investigation.
[6]
In
terms of the bias allegation, the applicants assert that Passport Canada’s
investigators were biased as they came to conclusions before they completed
their investigation.
[7]
The
respondent argues that there was no breach of procedural fairness. More
specifically, the respondent submits that there was nothing before Passport Canada which would
have caused it to doubt the applicants’ ability to understand written English
and that in any event, it was incumbent upon the applicants to obtain whatever
translation services might have been necessary. In terms of disclosure, the
respondent argues that all the material facts were disclosed to the applicants
and that Passport Canada is not required to disclose every document contained
in its investigation file, but, rather, it is sufficient if affected parties
are provided with the material facts an investigation discloses and an
opportunity to respond to them. The respondent asserts that this occurred in
the present case. As for the assertion that it is unfair for the record to have
been placed before the Court via the paralegal’s affidavit, the respondent
notes that this has been common practice and that it would be highly improper
to engage in a cross-examination of the type desired by the applicants as a
judicial review application is not a hearing de novo but, rather, a
review based on the record before the tribunal.
[8]
In
terms of bias, the respondent submits that there was no inappropriate
prejudgment by the Passport Canada investigators.
[9]
The
respondent also argues that many of the grounds raised by the applicants in
their Memorandum of Fact and Law seek to have the Court re-weigh the evidence
before the adjudicator, which is not the function of a court in a judicial
review application. Rather, a court’s function is to assess whether or not the
decision was reasonable. On the latter point, the respondent asserts that there
was ample evidence before the adjudicator to support his conclusion that the
result reached is within the range of possible, acceptable outcomes and,
accordingly, that the adjudicator’s decision is reasonable. The respondent also
challenges portions of the evidence filed by the applicants in their Motion
Record, arguing that they are inadmissible as they contain facts that were not
before the adjudicator.
[10]
In
my view, the issues that arise in this application may be stated as follows:
1. As a preliminary
matter, have the applicants filed evidence that was not before the adjudicator,
and should this evidence be excluded from consideration in this judicial review
application;
2. Were the
applicants afforded procedural fairness;
3. Were the
Passport Canada investigators biased; and
4. Was the
adjudicator’s decision reasonable
[11]
Each
of these issues is discussed below.
Have the applicants raised
new evidence that ought not be considered?
[12]
The
respondent submits that paragraphs 2-5, 9 (except the last sentence), 15 and 17
of the Affidavit of Nsaeif Slaeman and paragraphs 2, 3, 4 (except the last
sentence) and 9 of the Affidavit of Ramal Roukan are not properly before the
Court in this application for judicial review as they contain evidence that was
not before the adjudicator.
[13]
In
several of the impugned paragraphs, the applicants attest to their lack of
fluency in English language, state that another individual completed all the
written representations that they provided to Passport Canada and to the Edmonton police, and
claim that they did not fully understand what was contained in these
representations. They explain that their lack of understanding resulted in
certain of the discrepancies which the adjudicator noted in his decision. In
another of the impugned paragraphs in Mr. Slaeman’s Affidavit, he suggests that
one of his sons, who “has had several problems with the law revolving around
drugs, gangs and violence”, might have stolen the passports, without the
knowledge of the applicants. The final fact set out in the impugned paragraphs
is the applicants’ claim that they do not know the impostors who sought to
fraudulently use their passports and citizenship cards to attempt to board a
flight from Dubai to Toronto.
[14]
The
respondent is correct in asserting that none of the facts contained in the
impugned paragraphs in the applicants’ affidavits was before the adjudicator.
This is not disputed by the applicants. While conceding that, normally, a court
on judicial review is limited to considering facts contained in the record
before the inferior tribunal, the applicants argue that an exception applies in
this case, which would render the impugned portions of the applicants’
affidavits admissible. More specifically, they assert that the evidence relates
to a challenge to procedural fairness or is general background information,
both of which have been found to be admissible in judicial review applications.
The respondent, for its part, argues that even if certain portions of the
impugned evidence might be relevant to the applicants’ procedural fairness
arguments, such evidence will not be admissible unless and until the Court
determines that there was a breach of procedural fairness.
[15]
The
general rule, which has been qualified as “trite law”, is that an applicant on
judicial review can only rely on evidence that was before the decision-maker
(see e.g. Ochapowace Indian Band v Canada (Attorney
General),
2007 FC 920 at para 9, 316 FTR 19 [Ochapowace Indian Band]). As
the respondent correctly notes, there are limited exceptions to this rule,
namely when the evidence relates to a challenge to procedural fairness, the
tribunal’s jurisdiction or is general background information of assistance to
the court (Ochapowace Indian Band).
[16]
This
general rule was recently affirmed by the Federal Court of Appeal in Association of
Universities and Colleges of Canada and the University of Manitoba v the
Canadian Copyright Licensing Agency, 2012 FCA 22 at paras 17-20. As noted
by Justice Stratas in that decision at paras 18-19, the differing roles of the Court
and the administrative body underlie the rule: the role of the Court is to “review the overall legality of what the Board has done, not delve into or
re-decide the merits of what the Board has done… [the] Court cannot allow itself to become a forum for fact-finding on the merits of the matter.”
[17]
Here,
the evidence contained in the impugned portions of the applicants’ affidavits
is of two varieties. The evidence regarding lack of fluency in English (set out
in paras 2-5 and 9 of Mr. Slaeman’s Affidavit and paras 2-4
of Ms. Roukan’s Affidavit) is relevant to the claim regarding a breach of
procedural fairness and to the applicants’ claim that Passport Canada should
have recognized their lack of fluency and afforded them a hearing or provided them
with a translator.
[18]
On
the other hand, the evidence regarding the possibility that Mr. Slaeman’s son
might have stolen the passports (set out in para 15 of Mr. Slaeman’s Affidavit)
and regarding the applicants’ lack of knowledge of the impostors (set out in
para 17 of Mr. Slaeman’s Affidavit and in para 9 of Ms. Roukan’s Affidavit) is
not relevant to the applicants’ procedural fairness claims. It is directed
toward the merits of the inquiry before the adjudicator, namely, whether or not
the applicants allowed the third-party impostors to use their passports. This
evidence could have been – but was not – placed before the adjudicator.
[19]
Thus,
paragraphs 2-5 and 9 of Mr. Slaeman’s Affidavit and paragraphs 2-4 of Ms.
Roukan’s Affidavit are admissible in this judicial review application. In this
regard, I find no merit in the suggestion of the respondent that the Court
should determine admissibility of this type of evidence only after it
determines whether or not there is merit to the breach of procedural fairness
claim. Were the Court to proceed as the respondent argues it should, it would
be engaged in a completely circuitous exercise where the merits of the claim
would depend on evidence which would not be before the Court unless and until
the claim is found to be meritorious. Such circularity cannot possibly be the
basis upon which admissibility is determined. Rather, in my view, admissibility
depends upon the characterization of the evidence. If it fairly relates to a
procedural fairness claim, then it is admissible. As noted, the evidence
contained in paragraphs 2-5 and 9 of Mr. Slaeman’s Affidavit and paragraphs 2-4
of Ms. Roukan’s Affidavit does relate to their procedural fairness claims. It
is therefore properly before the Court.
[20]
The
evidence contained in paragraphs 15 and 17 of Mr. Slaeman’s Affidavit and
paragraph 9 of Ms. Roukan’s Affidavit, however, is not admissible. It does not
fall within one of the recognized exceptions to the general rule that a court
is limited on a judicial review application to considering the record before
the tribunal. Indeed, admitting this evidence would be completely inimical to
the judicial review process, and would invite applicants to conduct a de
novo trial, which is certainly not the requisite inquiry on a judicial
review application. As Justice de Montigny noted in Ochapowace Indian Band
at para 10, “[t]he purpose of a judicial review application is not to determine
whether the decision of a tribunal was correct in absolute terms but rather to
determine whether its decision was correct [or reasonable] on the basis of the
record before it”. Thus, the respondent’s request to strike portions of the
applicants’ affidavits is successful only with respect to paragraphs 15 and 17
of Mr. Slaeman’s Affidavit and paragraph 9 of Ms. Roukan’s Affidavit.
Were the applicants
afforded procedural fairness?
[21]
Turning,
next, to the applicants’ procedural fairness claims, there are two separate
breaches alleged: first, an allegation that the applicants were not afforded a
fair hearing because their language difficulties were not addressed by Passport
Canada and, second, an allegation that material evidence was not disclosed to
them. In order to address these allegations, it is necessary to determine the
requirements for procedural fairness applicable in the context of a Passport
Canada investigation.
[22]
As
the respondent correctly notes, the principles regarding the requirements of
procedural fairness for administrative decisions were set out by the Supreme
Court of Canada in Baker v Minister of Citizenship and Immigration,
[1999] 2 S.C.R. 817, 174 DLR (4th) 193 [Baker]. In Baker at paras 21
to 27, the Supreme Court noted that the requirements of procedural fairness
will vary depending on the nature of the decision and the impact on the interests
of the person affected. Factors relevant to the content of the duty include:
the nature of the decision and of the procedures followed by the tribunal in
making it or the "closeness of the administrative process to the judicial
process"; the requirements of the statute under which the decision is made
and the role of the particular decision within the statutory scheme; the
importance of the decision to the individuals affected; the legitimate
expectations of the affected individuals regarding what procedures would be
followed by the tribunal; and the choices made by the tribunal regarding
procedure, especially where the tribunal is afforded the right to establish its
own procedures.
[23]
The
requirements of procedural fairness in the context of a passport revocation and
permanent passport services suspension were considered in Kamel v Attorney
General of Canada, 2008 FC 338, [2008] 1 FCR 59 [Kamel]
(which was overturned by the Federal Court of Appeal in Kamel v Canada (Attorney
General),
2009 FCA 21, [2009] 4 FCR 449 but not on these points). The situation in
Kamel was different from that in the present case in that here the passport
services were suspended by Passport Canada for five years. In Kamel,
on the other hand, the Minister of Foreign Affairs and International Trade
suspended Mr. Kamel's passport services indefinitely, based on the
determination that he posed a security risk. The Minister's decision turned on
a report from the Canadian Security Intelligence Service that was not disclosed
to Mr. Kamel. Justice Noël determined that, in not being informed of the
substance of the report, Mr. Kamel had been denied procedural fairness which,
in the circumstances of that case, required that Mr. Kamal be provided with the
ability to engage in “full participation” in the process before the Minister.
According to Justice Noël, to ensure this, he needed “… to know exactly what
the allegations against him [were] … and what the information collected in the
course of the investigation [was to] … be able to respond to it completely” (Kamel
at para 68). This, however, did not mean that Passport Canada was required
to hold a hearing, and, indeed, Justice Noël noted that in most circumstances a
hearing will not be required. Rather, according to Justice Noël, at para 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.
[24]
It
flows from the foregoing that the applicants’ assertion that they ought to have
been afforded a hearing, due to their language difficulties, must fail. Indeed,
the applicants have been unable to cite any authority in support of their
position that it is incumbent on Passport Canada to assist
those being investigated with their language difficulties.
[25]
Their
claim on the language issue, moreover, rests primarily on the extraordinarily
narrow basis of a single line in a witness statement, which the applicants
provided to the Edmonton police on January 15, 2010, when they claim
they first noted that their passports were missing. Passport Canada obtained a
copy of the statement during the course of its investigation. The statement in
question was signed by a third-party, and contains the annotation “this
statement is written by my [sic] and directed by Mr. Slaman [sic]”.
The applicants argue that this single line, and the fact that the applicants
filed two letters that contradicted each other, ought to have put Passport Canada on notice
that the applicants lacked sufficient English language abilities to fully
comprehend and participate in the investigative process.
[26]
With
respect, such an assertion is entirely without merit. In my view, no reasonable
person would be led to any such conclusion, based on this single line in the
witness statement and on the contradictory letters filed by the applicants.
This is particularly so where, as here, the applicants sent several letters to
Passport Canada, in English,
and did not once indicate that they were having difficulty understanding the
correspondence. On these facts, there was simply no basis upon which Passport
Canada could ever have ascertained that the applicants might be facing
communication difficulties.
[27]
More
importantly, however, even if this had somehow become apparent to Passport Canada, it was not
incumbent on it to arrange for translation facilities for the applicants. The
applicants filed with the Court a copy of the “Rules of Procedure in Passport
Refusal and Revocation Cases” of Passport Canada, which are
available on the Internet. Those rules clearly provide that correspondence with
Passport Canada is to be conducted in English or French (i.e. one of Canada’s
official languages) and that if someone files a document in a different
language, it is up to that individual to provide an accurate translation,
accompanied by a declaration from a translator, setting out the translator’s
credentials and attesting to the authenticity of the translation. Passport Canada’s procedure
in this regard is similar to that of this Court: Rule 93 of the Federal
Courts Rules, SOR-98-106 provides that translation shall be arranged for
witnesses who do not understand English or French, and that it is the
responsibility of the party who calls the witness to arrange and pay for the
translator.
[28]
Thus,
the applicants’ first allegation regarding a breach of procedural fairness is
without merit because there was no basis upon which Passport Canada could
reasonably have determined that the applicants had difficulties communicating
in English and because, in any event, even if it had known this to be the case,
Passport Canada was under no obligation to hold an oral hearing nor to provide
translation services to the applicants.
[29]
Turning
to the applicant's second allegation, this case and that of Abdi, Hashi and
Abshir v The Attorney General of Canada (2012 FC 642, released concurrently
with this decision) involve the application of the broad principles from Baker
and Kamel to fact patterns that are very different from that in Kamel
and from each other. In both this case and that of Abdi, Hashi and Abshir,
the applicants argue that Passport Canada ought to have disclosed copies of its
entire file to them or, alternatively, that certain pieces of information or,
in the case of' Abdi, Hashi and Abshir, certain documents amounting
effectively to written advocacy, ought to have been disclosed.
[30]
In
the present case, in support of their allegation that they were denied
procedural fairness through non-disclosure, the applicants point to a record of
over 100 pages, which was before the adjudicator, and note that they only
received a handful of letters from Passport Canada. They argue
that the entire record should have been disclosed to them and that certain
portions of it contained potentially exculpatory evidence that they did not
have the opportunity to expand upon nor to draw to the attention of the
adjudicator. More specifically, the applicants assert that Passport Canada
undertook several lines of inquiry that proved fruitless. These included
Passport Canada’s inability to determine what transpired at the Syrian Embassy
in Ottawa when it issued visas in respect of the applicants’ passports on
January 4, 2010; Passport Canada’s unsuccessful attempt to obtain copies of
the 12 Canadian documents that the impostors had in their possession when
apprehended in Dubai on January 15, 2010; and Passport Canada’s discovery that
a Shoppers Drug Mart receipt that was also in the impostors’ possession was not
issued from the same location as where the applicants had their passport photos
taken. The applicants argue that had this information been disclosed to them,
they could have made arguments in support of their position that they were not
complicit in allowing the impostors to use their passports.
[31]
Apart
from the obvious inconsistency of this position with the prior argument
regarding the applicants’ inability to understand the documents disclosed to
them, the applicants’ second argument has no merit because it is bears no
relevance to what actually transpired and the non-disclosed items are
completely irrelevant to the determination the adjudicator was called upon to
make. Much more relevant matters were disclosed by Passport Canada to
the Applicants, which would have necessitated the same response by the
applicants regarding their theory of what had transpired, yet, the applicants
provided no submissions in their defence to Passport Canada nor to the
adjudicator.
[32]
In
terms of the disclosure, on December 3, 2010, Passport Canada’s Chief
Investigator wrote a detailed letter to each of the applicants, in which he set
out all the material facts that Passport Canada gathered in its investigation.
The letters provided in this regard [differences in the letter to Nsaeif
Slaeman are noted in square brackets]:
Passport Canada received information from
the Migration Integrity Officer (MIO) in Dubai that on January 15, 2010, an
impostor attempted to board flight EK241 from Dubai to Toronto, using Canadian
passport WL615418 [or WL615414], issued in your name. The impostor was also
found to be in possession of Canadian citizenship certificate B0736668 [or
A8422217], issued in your name.
The MIO also reported that passport
WL615418 [or WL615414] contained a visa from the Syrian Arab Republic, which was issued by the Syrian
Embassy in Ottawa on January 4, 2010.
Information received from the Syrian Embassy confirmed that they did issue the
visa contained in passport WL615418 [or WL615414]. According to the Syrian
Embassy, it takes between 7 to 10 days to process an application for Syrian
visa, and applicants are advised to take mailing time and holidays into account
(i.e. five to eight working days are required).
They also note that a photograph of the
applicant is required when applying for a visa. Since January 4, 2010, was a
Monday, and five to eight working days are required to process a visa
application, this would indicate that passport WL615418 [or WL615414] would
have to have been received by the Syrian embassy no later than December 24,
2009, which meant that it would have had to have been mailed by no later than
December 23, 2009.
Passport Canada records indicate that at
the time of application for passport WL615418 [or WL615414], you requested that
it be sent to you by mail and according to verification from Canada Post, the
passport was delivered to you on December 22, 2009.
On March 12, 2010, you submitted an
application for a Canadian passport to Passport Canada’s Edmonton office. In support of this application,
you submitted a Statutory Declaration concerning a lost, stolen, damaged,
destroyed or inaccessible Canadian passport or travel document (PPTC 203),
dated January 24, 2010. On the PPTC 203, he declared that Canadian passport
WL615418 [or WL615414], issued in your name on December 17, 2009, was stolen
from your car at the Londonderry Mall in Edmonton on January 15, 2010. You also declared
that passport WL615418 [or WL615414] was last seen or used on January 15, 2010,
at 1:30 PM.
In additional correspondence from you
dated May 11, 2010, you explained that after passport WL615418 [or WL615414]
was delivered you placed [gave it to your wife who placed] the passport in a
black travel document bag, which was placed in a briefcase, and stored in a
cabinet in your bedroom. You also indicated that during the first week of
January 2010, your husband [you] removed the black travel document bag from
your house and placed it in your car, assuming that the passport was still in
the bag, and only noticed it was missing on January 15, 2010, when you went to
the travel agent at the Londonderry Mall.
In an additional letter from you dated
September 16, 2010, you indicated that your citizenship card was also stored in
the same bag [you indicated that you moved the travel document bag from your
house to your car in the first week of January 2010, that your citizenship card
and Edmonton picture identification were also stored in the same bag and that
you realized that these documents were missing at the same time as the
passport].
Passport Canada’s investigations are
administrative in nature, and evidence is assessed on a balance of probabilities
test – that is, given the information held on file, what is more likely to have
happened. When considering your explanation, in order for your version of
events to be accurate, the following would have needed take place:
1.
After
passport WL615418 [or WL615414] was delivered to you and stored in your bedroom
on December 22, 2009. Between then and December 23, 2009, someone broke into
your home, went into your bedroom, removed the briefcase from your cabinet,
removed the black travel document bag, removed passport WL615418 [or WL615414],
your citizenship card and your city of Edmonton picture ID, then placed the
travel document bag back inside the briefcase and then put the briefcase back
inside the cabinet and left. As you never mentioned a break-in at your home as
a possible explanation as to how passport WL615418 [or WL615414] could have
ended up in the possession of an impostor, one must presume that nothing else
was taken from your home.
2.
After
obtaining passport WL615418 [or WL615414] from your home, the thief completed
an application for a Syrian visa and mailed it to the Syrian embassy within 24
hours after stealing this passport. During that time, they were also able to
locate an individual who looked enough like you that the visa application was not
questioned at the Syrian Embassy when photographs on the visa application were
compared to your photograph in passport WL615418 [or WL615414].
3.
On January
15, 2010, an impostor attempted to use passport WL615418 [or WL615414] to
travel to Canada illegally from Dubai.
That same afternoon, after the impostor was apprehended, he realized that
passport WL615418 [or WL615414] had been stolen and reported this to police.
[33]
The
December 3, 2010 letters also set out Passport Canada’s conclusion that it was
more likely than not that the applicants had allowed another person to use
their passports in an attempt to travel to Canada illegally and that the
applicants had provided false or misleading statements in support of an
application for a new passport. These letters further outlined for the
applicants the process that Passport Canada was following, detailed the
applicants’ right to file submissions and the deadline for doing so, as well as
the consequences of an adverse finding (namely, that the applicants’ passports
would be revoked and no new one provided for a period of five years).
[34]
As
noted, the applicants provided absolutely no response to these letters.
Passport Canada again wrote
them on March 11, 2011, asking them to file submissions, if they had any information
that “would contradict or neutralize the information” in the December 3, 2010
letters. Once again, the applicants provided no response whatsoever. It was
only after these two requests for submissions that Passport Canada forwarded
its submissions to the adjudicator. The applicants did not make any submission
to the adjudicator.
[35]
Before
the Court, the applicants assert that someone stole their passports in the
manner suggested in Passport Canada’s December 3, 2010 letter. The suggestion
is that this person might have been Mr. Slaeman’s son, as set out in paragraph
15 of Mr. Slaeman’s Affidavit. However, no explanation was given as to why the
applicants did not make this submission to Passport Canada. This claim
is central to their defense.
[36]
The
fruitless lines of inquiry that Passport Canada did not disclose to the
applicants have no bearing on the applicants’ ability to make full answer and
defence to the case that the Passport Canada investigators had put together.
The central point in any defence was the theory that it was Mr. Slaeman’s son
who stole and sold the passports. The ability of the applicants to raise this
argument was in no way impacted by the non-disclosure of the fruitless inquires
that Passport Canada conducted. Moreover, these fruitless lines of inquiry were
not considered by Passport Canada in its recommendation to the adjudicator
nor by the adjudicator in his decision. In addition, and most importantly, the
fact that these lines of inquiry proved fruitless is in no way relevant to whether
it is more likely than not that the applicants allowed a third party to use
their passports. Thus, the fact that Passport Canada conducted certain inquires
that led nowhere is simply not material to the case.
[37]
Kamel did not
decide that Passport Canada must disclose every matter it inquires into or even
that it must disclose every document that it provides to the decision-maker.
Rather, it held that Passport Canada must disclose to both the decision-maker
and the individual under investigation all the information it gathered that is
relevant to the determination to be made. Arguably, the above-cited passages
from Kamel may go slightly further and provide that any information
given to the decision-maker must also be provided to the applicant, even if it is
immaterial. However, the need to disclose immaterial information was not
squarely addressed in Kamel as the case concerned a highly relevant and
prejudicial report that was provided to the Minister – but not to Mr. Kamel –
which played a central role in the Minster’s decision to permanently suspend
passport services for Mr. Kamel. In my view, Justice Noël’s comments regarding
what must be disclosed by Passport Canada should be read bearing these facts in
mind, and, accordingly, do not stand for the proposition that it is a breach of
natural justice for Passport Canada to fail to disclose irrelevant documents
that it might send to the adjudicator. While it might be a more prudent
practice for Passport Canada to provide identical disclosure to the adjudicator
and the individuals under investigation (and thereby ensure it would be immune
from challenges of this nature), in my view, there is no breach of natural
justice where, as here, buried in the file forwarded to the adjudicator there
are a few irrelevant facts that were not disclosed to the individuals under
investigation.
[38]
There
is ample authority from other contexts, where the interests concerned are
important but do not concern the life or liberty of individuals, to support the
notion that the requirements of natural justice are met if the investigator
provides a summary of the material facts that are relevant to the determination
to be made. For example, in the context of inquiries by visa officers under
section 40(1)(a) of the Immigration and Refugee Protection Act, SC 2001, c 27, this Court
has determined that the requirements of procedural fairness are met when the
visa officers suspect that an applicant for a visa may have made a
misrepresentation in his or her application, if the visa officer writes a
"fairness letter", outlining the perceived misrepresentations and
inviting the applicant to make responding submissions (see e.g. Sinnathamby
v Canada (Minister of Citizenship & Immigration), 2011 FC 1421, 209
ACWS (3d) 670; Mahmood v Canada (Minister of Citizenship & Immigration),
2011 FC 433, 388 FTR 69; and Natt v Canada (Minister of Citizenship &
Immigration), 2009 FC 238, [2009] FCJ No 281). To somewhat similar effect,
in the human rights context, it is sufficient if the Human Rights Commission
investigator discloses a summary investigation report (as opposed to all the
evidence gathered in the investigation) and provides a copy to the Commission
and the affected parties, who are afforded the ability to make submissions to
the Commission (see e.g. Merham v Royal Bank, 2006 FC 237 and Hutchinson
v Canada (Minister of Environment), [2003] 4 FC 580 (CA)). Likewise, in the
context of transferring prisoners to higher security institutions, this Court
has found that disclosure of summaries of the information compiled against a
prisoner is sufficient to meet the duty of procedural fairness (see e.g. Mymryk
v Canada (Attorney General), 2010 FC 632, 382 FTR 8).
[39]
Therefore,
in the circumstances of this case, the failure to disclose the fruitless lines
of inquiry that Passport Canada undertook but which led nowhere does not amount
to a breach of procedural fairness, as the non-disclosed information was not
material to the decision.
[40]
Thus,
both grounds raised by the applicants regarding an alleged breach of procedural
fairness are without merit. I also note that there is absolutely no merit
whatsoever in the suggestion that the procedures before this Court were unfair
in not allowing the applicants to cross-examine the Passport Canada
investigators. Such cross-examination would be completely inappropriate in a
judicial review application, for the reasons advanced by the respondent. Thus,
the applicants were afforded appropriate procedural fairness by Passport Canada and before
this Court.
Were the Passport Canada investigators
biased?
[41]
Turning,
next, to the applicants' second ground of attack, it is axiomatic that a
decision may be set aside on the ground of bias of the decision-maker, where
there is a reasonable apprehension that such bias exists. The test for establishing
a reasonable apprehension of bias was restated by the Supreme Court of Canada
in R v S (RD), [1997] 3 S.C.R. 484, 151 DLR (4th) 193 at para 111, where the
Court noted that a reasonable apprehension of bias exists where a reasonable
and informed person, with knowledge of all the pertinent circumstances, facing
the matter realistically and practically, would conclude that the
decision-maker’s conduct gives rise to a reasonable apprehension of bias. In
determining if there is a reasonable apprehension of bias, the court is to
consider whether an informed person would think that it is more likely than not
that the decision-maker, whether consciously or unconsciously, would not decide
fairly (Committee for Justice & Liberty v Canada (National Energy Board)
(1976), [1978] 1 S.C.R. 369, at para 29; R v S ( RD), at para 111).
[42]
The
applicants suggest that Passport Canada investigators demonstrated bias as they
“rushed to judgment” and determined the applicants’ guilt before their
investigation was completed. In support of this allegation, counsel for the
applicants relied principally on draft letters, dated May 28, 2010 that were
not sent to the applicants, and which set out the conclusion that Passport
Canada believed that the applicants had permitted another person to use their
passports. These letters, however, are clearly drafts, as they contain many
handwritten amendments and are followed in the record by a memo from a more
senior official in Passport Canada to the author of the drafts, pointing out
the various issues that still needed to be investigated. These various issues
were, in fact, investigated by Passport Canada. The final
versions of the letters that were sent to the applicants on December 3, 2010
were substantially different from the drafts and, as noted, summarized all the
material facts that Passport Canada had uncovered during its investigation.
[43]
In
my view, these draft letters do not indicate that Passport Canada pre-judged
the situation as it continued its investigation after May 28, and the subsequent
investigation included inquiry into possible exculpatory evidence. Accordingly,
in my view, there is no basis upon which an informed person would think that it
is more likely than not that Passport Canada had prejudged the situation.
Moreover, there is no suggestion made that the adjudicator, who actually made
the decision that is the subject of this judicial review application, was
biased. Accordingly, the applicants’ second basis for challenging the
adjudicator’s decision also fails.
Was the adjudicator’s
decision reasonable?
[44]
In
so far as concerns the allegation that the decision should be set aside because
it is unreasonable, as the respondent correctly notes, the reasonableness
standard of review is a highly deferential one. Indeed, a reviewing court may intervene only if it
is satisfied that the reasons of the tribunal are not “justified, transparent
or intelligible” and if the result reached by the tribunal does not fall
“within the range of possible, acceptable outcomes which are defensible in
respect of facts and law” (Dunsmuir v New Brunswick, 2008 SCC 9, [2008]
1 SCR 190, at para 47).
[45]
In
the present case, the applicants assert that the adjudicator’s factual
determinations were unreasonable. In Canada (Citizenship and Immigration)
v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 [Khosa], the Supreme Court of
Canada held that judicial review pursuant to sections 18 and 18.1 of the Federal
Courts Act, RSC 1985, c F-7 [FCA]
is governed by the common law principles set out in Dunsmuir and that
section 18.1(4)(d) of the FCA provides “legislative precision to the
reasonableness standard” by which factual findings are to be measured (Khosa
at para 46). Section 18.1(4)(d) of the FCA provides that this Court may set
aside a tribunal’s decision if it is satisfied that the tribunal “based its
decision or order on an erroneous finding of fact it made in a perverse or
capricious manner or without regard to the material before it”.
[46]
In
the decision at issue in this case, the adjudicator reviewed the procedural
history of the various exchanges of correspondence between Passport Canada and
the applicants, summarized the positions advanced by Passport Canada and the
applicants and conducted a detailed analysis in support of his conclusion
upholding Passport Canada’s position to the effect that it was more likely than
not that the applicants allowed another person to use their passports and that
the applicants had provided false information in respect of their applications
to obtain replacement passports. More specifically, the adjudicator relied on
the following facts:
1. The
applicants did not report the passports as missing to Passport Canada until March
12, 2010. In the statutory declaration they signed on January 24, 2010, in
support of the request to obtain replacement passports, the applicants stated
that the passports had been stolen from their car in Edmonton on January 15,
2010, and that they had last seen the passports at approximately 1:30 PM that
day;
2. On March 11,
2010, however, the applicants provided a contradictory statement to Passport Canada, following
Passport Canada’s disclosure to them of the fact that the passports were seized
in Dubai on January
15, 2010. Obviously, they could not have been stolen from Edmonton on the same
day. Accordingly, the applicants changed their version of events and stated
that the last time they remembered seeing their passports was the date they
were delivered to them, in late December 2009;
3. Mr. Slaeman
and Ms. Roukan provided contradictory versions of events regarding who put the
passports away in a black document bag that they claimed was later transferred
to their car, without them noticing that the passports were missing from it;
4. In subsequent
statements, “answering pointed questions from the Bureau” (adjudicator’s
decision, page 6), the applicants provided new dates regarding when they last
saw the passports, stating first that they had been put in the glove
compartment of their car in “early January” and, thereafter, Mr. Slaeman
modified his version of events again and stated that he “believed” he put the
passports in the car in the first week of January;
5. The passports
contained a Syrian visa, which was issued in Ottawa on January
4, 2010. The adjudicator noted that this fact was completely inconsistent with
the applicants’ version of events: and
6. The
applicants provided absolutely no explanation as to who could possibly have
stolen the passports from their home in the few days between their receipt and
the date they would have needed to have been sent to Ottawa to allow for
the issuance of the Syrian visas on January 4th.
[47]
The
applicants assert that the adjudicator’s decision was made without regard to
the evidence. Throughout their Memorandum of Fact and Law, they posit
alternative theories and explanations for what they suggest is more likely to
have happened to their passports. They also offer explanations for the
inconsistencies in their statements that led the investigators to conclude that
their credibility had been undermined. However, as noted, none of these
explanations was given to Passport Canada or to the adjudicator.
[48]
In
my view, these explanations and theories are an invitation to the Court to come
to its own conclusions, based on evidence that was not before the adjudicator,
which is well beyond the scope of judicial review on the reasonableness
standard. Rather, what is required is that the Court assess the reasonableness
of the adjudicator’s decision based on the record that was before him. And that
record reveals that the adjudicator made a completely reasonable decision on
the evidence before him and drew completely reasonable inferences. In short,
the applicants provided no credible explanation as to what had happened to
their passports, and changed their version of events multiple times when, as
the investigation progressed, it became apparent that previous versions were
untenable. In the circumstances and based on the evidence before the
adjudicator, the only reasonable conclusion which could have been drawn is the
one the adjudicator reached, namely, that the applicants were complicit in
allowing the passports to be utilized by someone else.
[49]
As
for the five-year ban on obtaining new passports, in my view, the adjudicator’s
determination on this point is also reasonable. The imposition of a penalty is
a highly discretionary element of the decision, and its length is certainly
within the range of possible, acceptable outcomes (and coincides with the
length of penalties in other cases that have been upheld by this Court such as
in Okhionkpanmwonyi
v Canada (Attorney General), 2011 FC 1129 at paras 8-9, 207 ACWS (3d) 316).
[50]
As
the adjudicator rightly noted in his decision, misuses of passport services are
“serious matters”. Canada is required to ensure that its passports are
not misused to deter illegal migration and meet foreign governments’
expectations regarding the reliability of Canadian travel documents. Failure to
do so may have serious consequences, including the facilitation of illegal
entries and exits from countries by unidentified individuals and the
consequential security risks and impairment to the ability of legitimate
Canadian travelers to travel to other countries without undue impediment.
Accordingly, the imposition of a five-year ban in the circumstances of this
case was entirely reasonable.
[51]
For
these reasons, this application for judicial review will be dismissed.
JUDGMENT
THIS COURT’S
JUDGMENT is that:
1.
This
application for judicial review is dismissed.
2.
The
parties shall file written submissions of no more than five pages with respect
to costs by June 8, 2012. They shall have the opportunity, if they wish, to
file a reply of up to five pages to each other’s costs submissions by June 15,
2012.
3.
I
remain seized of the issue of costs in this matter.
"Mary
J.L. Gleason"
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