Date:
20140117
Dockets: T-1379-12
T-1380-12
Citation:
2014 FC 48
[UNREVISED ENGLISH CERTIFIED
TRANSLATION]
Ottawa, Ontario,
January 17, 2014
PRESENT: The Honourable Mr.
Justice Roy
BETWEEN:
JACQUES
EASTWOOD LÉONARD SAINT-VIL
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS
FOR JUDGMENT AND JUDGMENT
[1]
The applications for judicial review filed by Jacques
Eastwood Léonard Saint-Vil, the applicant, were heard on December 17 after some
problems arose. In fact, the cases were to be the subject of a hearing on
October 15, but had to be adjourned because counsel for the applicant stated
that he could no longer act in the matter. I granted his motion to be removed,
under Rule 125 of the Federal Courts Rules, SOR/98-106, on November
13.
[2]
With some delays, largely attributable to weather, the
applicant appeared in person in Toronto on December 17 to make his submissions.
[3]
Two applications for judicial review are before the Court.
Docket T-1379-12 involves a decision dated January 26, 2012, in which Passport
Canada refused to issue a passport and ordered a five-year period of refusal of
passport services starting on May 8, 2009.
[4]
The second decision, docket T-1380-12, involves the refusal
to issue the applicant a passport for urgent, compelling and compassionate
reasons. In that case, the applicant wished to obtain a passport to allow him
to participate in certain professional activities in the Luanda Jazz Festival in
2012. He filed an application in that respect on July 5, 2012, and it was refused.
[5]
That proceeding can be disposed of quickly. In fact, the
application for judicial review is now moot. The Court cannot order a remedy
that will have any effect because the said Jazz Festival took place and is
finished. On these grounds, the matter is closed and I do not see why legal
resources should be devoted to assessing an issue that is now moot. The
decision in Borowski v Canada (Attorney General), [1989] 1 S.C.R. 342 applies.
[6]
During the hearing of this matter on December 17, the
applicant did not object when the respondent made him realize that his
application is moot. It is entirely to his credit. Like I indicated at the
hearing itself, even without that concession, I would not have been prepared to
further assess the matter given that it is now completely moot.
[7]
This therefore brings is to docket T-1379-12, which
concerns the decision dated January 26, 2012, to refuse to issue a
passport to the applicant and to impose the five-year period to which I already
referred.
[8]
The facts are important. The applicant applied for a
passport on May 8, 2009. The applicant filed that application on an urgent basis,
indicating that he required a passport to attend his father’s funeral in Paris.
That was false. Instead, he wished to go to Paris for his work.
[9]
Furthermore, he stated in that application that that was
his first passport application. However, Passport Canada verified this and
found that a passport had been issued in the name of Jacques Eastwood Léonard
Saint‑Vil. It seemed that the passport had been issued on July 16, 2004,
and that the Canadian authorities had been notified that it had been seized by
the Nigerian authorities around October 12, 2004. There is no doubt, at least
for the purposes of this matter, that specific information about Mr. Léonard
Saint-Vil had been used to obtain that passport, but that the photo appearing in
it did not match his photo. The issuance of that passport led to an
investigation. In trying to explain the use of certain identity documents, the
applicant stated that he had misplaced certain identity documents over two
periods of incarceration, that is, in 2002 and 2003 and in 2007 and 2008.
[10]
At that time, the applicant also stated that his
application for the purposes of attending his father’s funeral was false.
Charges were thus brought against him under paragraph 57(2)(b) of the Criminal
Code on April 28, 2010. He pleaded guilty and was fined $1,000, which he
paid.
[11]
That situation had consequences for the applicant. He was
obviously refused the issuance of a passport further to his application dated
May 8, 2009. First, he was criticized for not being truthful about it being his
first passport application because he was blamed for the issuance of a passport
in 2004 in his name using his identity documents but not a photo resembling him.
Finally, he was refused the passport pursuant to his conviction under section 57
of the Criminal Code.
[12]
The two paragraphs of the Canadian Passport Order, SI/81-86,
that are relevant in this case read as follows:
|
9.
Without limiting the generality of subsections 4(3) and (4) and for greater
certainty, the Minister may refuse to issue a passport to an applicant who
(a)
fails to provide the Minister with a duly completed application for a
passport or with the information and material that is required or requested
(i) in the
application for a passport, or
(ii)pursuant
to section 8;
(e)
has been convicted of an offence under section 57 of the Criminal Code
or has been convicted in a foreign state of an offence that would, if
committed in Canada, constitute an offence under section 57 of the Criminal
Code;
|
9.
Sans que soit limitée la généralité des paragraphes 4(3) et (4), il est
entendu que le ministre peut refuser de délivrer un passeport au requérant
qui :
a)
ne lui présente pas une demande de passeport dûment remplie ou ne lui fournit
pas les renseignements et les documents exigés ou demandés
(i)
dans la demande de passeport, ou
(ii)
selon l’article 8;
e)
a été déclaré coupable d’une infraction prévue à l’article 57 du Code
criminel ou, à l’étranger, d’une infraction qui constituerait une telle
infraction si elle avait été commise au Canada;
|
[13]
Passport Canada was satisfied that the first passport
issued could not have been issued unbeknownst to the applicant. His Quebec
health system identity card and a birth certificate issued on August 2, 1999,
were indeed used and the applicant was unable to provide a valid explanation as
to how that could have happened. Regarding the second reason, the guilty plea
for the offence committed is sufficient for the refusal to issue the said
passport.
[14]
Above all, it is the period of refusal of passport services
imposed on the applicant that he objects to the most. That period of refusal of
passport services was established at five years starting from the passport
application dated May 8, 2009, for the offence under paragraph 9(a),
and at four years for the guilty plea so as to acknowledge that the applicant
admitted that he did not have the urgent grounds that he had raised and chose
to plead guilty to the offence. That period would only be imposed starting on
September 11, 2009, the date on which the admission was made. Because those
periods are applied concurrently, it is obviously the five-year period starting
on May 8, 2009, that applies. The applicant submits that that period is unfair.
[15]
Passport Canada claims that the sanction was considerably reduced
with respect to the recommendations made during the investigation. Indeed, at
that time, it was suggested that the starting date for the period of refusal of
services be January 19, 2011, because the guilty plea was entered on that date.
If that were the date chosen, the period would have finished on January 19,
2016, instead of May 9, 2014.
[16]
During the hearing, the applicant essentially put himself at
the mercy of the Court. He acknowledged his errors, but needs a passport to
resume his professional activities. Clearly, and despite the quality of his plea,
an otherwise valid decision cannot be overturned simply because the applicant pleads
sympathy. The decision is not unreasonable or unjust.
[17]
The written arguments that were submitted in support of the
judicial review were a lot more considerable. However, they came up against a
significant problem. Applications for judicial review must indeed be filed
within 30 days of the decision to be reviewed. In this case, the application
was filed four months later. The reasons for that are far from convincing.
Since it has been difficult to hold a hearing in this matter because the
applicant is often very hard to reach, he became the author of his own misfortune
and his inability to meet his obligations arises essentially from his own practices.
Like he candidly acknowledged at the hearing, he is often the cause of his own misfortune.
On that basis alone, I would have been prepared to dismiss the judicial review
in docket T-1379-12.
[18]
However, I chose to briefly examine the arguments that were
raised to ensure that their quality is not sufficient to overturn the decision.
[19]
The applicant argued that a hearing before Passport Canada was
necessary and that he was deprived of one. That argument has already been examined
by my colleagues, Justice Hughes and Justice Gleason, in Sathasivam v The
Attorney General of Canada, 2013 FC 419 and Slaeman v The Attorney
General of Canada, 2012 FC 641 (Slaeman). In both cases, my
colleagues did not hesitate to state that such hearings were not required and I
agree with them. The applicant was perfectly able to make his complaints
because he was informed of the quality of the allegations against him and of the
details under review. That was sufficient in this case. Justice Gleason stated
the following at paragraph 38:
There
is ample authority from other context, 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.
[20]
The applicant also complained that the calculation of the
period of refusal of services was arbitrary in that its starting date does not
seem to be fixed anywhere. It is difficult to understand why the applicant is
complaining because he benefitted from the earliest start date for the five‑year
period of refusal of passport services. Justice Zinn stated the following in Mikhail
v Canada (Attorney General), [2013] FCJ No 788 (QL), at
paragraph 28:
The
period of suspension of services is a matter entirely within the discretion of
the adjudicator.
[21]
Regarding the length of the five-year period, Justice
Gleason stated the following in Slaeman, above, at paragraph 49:
The
imposition of the 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, 2011 FC
1129).
[22]
There is no question that the integrity of the Canadian
passport is an essential consideration and that periods of suspension must
reflect the importance of ensuring that the Canadian passport is considered authentic
everywhere in the world.
[23]
To the extent that the applicant made a false statement in
applying for his passport in May 2009 and considering that his involvement in
the issuance of a passport in 2004 was deemed not innocent, a five-year suspension
period certainly seems reasonable.
[24]
Finally, the applicant’s written submissions included
general allegations regarding the application of the Canadian Charter of
Rights and Freedoms (Charter) on this issue. Unfortunately, his arguments
were generic in nature when he referred to two decisions, that is, Kamel v
Canada (Attorney General), 2009 FCA 21, [2009] 4 FCR 449 (Kamel) and
Abdelrazik v Canada (Minister of Foreign Affairs), 2009 FC 580, [2010] 1
FCR 267 (Abdelrazik).
[25]
Those matters support the proposal that the Charter can
apply in passport issuance matters. But that is not the matter here. A
description of what constitutes the constitutional infringement in this case was
necessary. The issue in Kamel was the constitutionality of subsection 10(1)
of the Canadian Passport Order, which is not the case here. The matter
in Abdelrazik was the Minister of Foreign Affairs’ decision to not issue
a passport for reasons of national security in the case of an individual who
wanted to be repatriated to the country. In both cases, the applicants
satisfied the conditions for the issuance of a passport, which was otherwise
refused. In our case, the applicant was refused a passport not despite meeting
the conditions, but because he did not meet them.
[26]
I agree with the respondent’s argument that asking Canadian
citizens to provide honest information and to not commit offences with respect
to their passport (section 57 of the Criminal Code) constitutes
obligations that cannot be said to breach section 6 of the Charter.
[27]
In the absence of a well structured argument, given that
the applicant, who is no longer represented by counsel, never mentioned a
constitutional argument, I prefer to refrain from any further comments.
[28]
Thus, the two applications for judicial review must be
dismissed. Regarding docket T‑1380-12, the issue is moot and for this
reason alone the application for judicial review is dismissed. Regarding docket
T-1379-12, the application for judicial review was filed late, but, despite
that, my assessment of the written arguments led me to find that those
arguments would not have been successful. Thus, for both procedural and
substantive reasons, the application for judicial review must be dismissed.
[29]
The morning of the hearing, the applicant drove from Montréal
to Toronto to state his position. He was no longer expected when he appeared in
the court room. Driving in a snow storm to present his arguments is entirely to
his credit. In the circumstances, I do not see how the interests of justice
would be served by imposing costs. As a result, the applications for judicial
review are dismissed, without costs.
JUDGMENT
The
application for judicial review of the decision by Passport Canada dated
January 26, 2012, is dismissed, without costs.
“Yvan Roy”
Certified
true translation
Janine Anderson,
Translator
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