Docket:
T-1344-12
Citation: 2014 FC 64
Ottawa, Ontario, January 21, 2014
PRESENT: The Honourable Mr. Justice Phelan
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BETWEEN:
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JOSE S. DIAS
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
This is the judicial review of a decision by the
Director of the Investigation Division, Safety Bureau of Passport Canada [Director] denying Mr. Dias passport services for five years.
The
reason for the Director’s decision is his conclusion that the Applicant was
involved in the misuse of his passport by attempting to assist an “improperly
documented person” to travel.
II. BACKGROUND
[2]
The Applicant is a citizen of Canada and Brazil. On November 9, 2006, he married his wife Danielle, a Brazilian citizen, who also
claimed entitlement to New Zealand citizenship through her grandmother.
[3]
The Applicant claimed that his wife paid
approximately $5,000 US to a paralegal to obtain her New Zealand citizenship
and a New Zealand passport.
[4]
On November 3, 2010, the Applicant and his wife
travelled to St. Maarten from Brazil and attempted to leave on November 16 to
travel to Canada. The couple checked in together, the Applicant proceeded to
board but his wife was denied boarding because her New Zealand passport was
found to be counterfeit. The Applicant disembarked but eventually returned to Canada.
[5]
The Applicant’s passport was seized upon his
return to Canada. He denies that he knew that his wife’s passport was
counterfeit. There is no evidence that he was charged, much less convicted, of
committing an indictable offence in Canada or any offence in a foreign country.
[6]
The Applicant was advised on January 25, 2011
that Passport Canada was investigating him for travelling with an individual
who was using a counterfeit passport. The Applicant responded with a statutory
declaration of his version of events.
[7]
Eventually Passport Canada informed the
Applicant that since his passport had expired, revocation of it was moot but
that it would be recommending a 5-year refusal of passport services.
[8]
In the decision letter of June 15, 2012 where
the Director imposed the 5-year refusal of passport services due to misuse of
his passport, the Director concluded:
•
the Applicant was intercepted while travelling
with his spouse who was using a counterfeit New Zealand passport;
•
the payment of $5,000 was an unreasonable price
to pay for a legitimate passport;
•
the counterfeit passport was issued in the
wife’s married name almost nine months prior to the marriage; and
•
the Applicant’s account of how his wife acquired
her passport and his unawareness of it being fraudulent was not plausible. This
was particularly so since her passport’s issue date was four years prior to the
date on which the wife submitted the forms to acquire her New Zealand passport.
[9]
The Director did allow for the provision of limited
passport services to the Applicant based on urgent, compelling and
compassionate considerations.
III. ANALYSIS
[10]
The key questions in this judicial review are:
(a)
whether the Director had jurisdiction under
paragraph 10(2)(b) of the Canadian Passport Order, SI/81-86 [Passport
Order] to refuse services;
(b)
whether the decision is reasonable; and
(c)
whether the decision resulted in a violation of
the Applicant’s s 6 Charter rights.
[11]
The issues of jurisdiction and Charter
right violation are to be reviewed on a standard of correctness (Hrushka v Canada (Minister of Foreign Affairs), 2009 FC 69, 340 FTR 81 [Hrushka]).
The
decision on its merits is to be assessed against a standard of reasonableness (Sathasivam v
Canada (Attorney General), 2013 FC 419, 230 ACWS (3d) 424).
[12]
The operative provisions of the Passport Order
are:
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10. (2) In addition, Passport Canada may revoke the passport of a person who
…
(b) uses the passport to assist him in committing an indictable
offence in Canada or any offence in a foreign country or state that would
constitute an indictable offence if committed in Canada;
…
10.3 If a passport issued to a person has
expired but could have been revoked on any of the grounds set out in sections
10 and 10.1 had it not expired, Passport Canada or the Minister, as the case
may be, may impose a period of refusal of passport services on those same
grounds, except for the grounds set out in paragraph 9(g), if the
facts that could otherwise have led to the revocation of the passport
occurred before its expiry date.
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10. (2) Il peut en outre révoquer le
passeport de la personne qui :
…
b) utilise le passeport pour commettre un acte criminel au Canada,
ou pour commettre, dans un pays ou État étranger, une infraction qui
constituerait un acte criminel si elle était commise au Canada;
…
10.3 Dans le cas où un passeport aurait
pu être révoqué pour l’un des motifs visés aux articles 10 et 10.1 — à
l’exception du motif prévu à l’alinéa 9g) — s’il n’avait pas été
expiré, Passeport Canada ou le ministre, selon le cas, peut imposer une
période de refus de services de passeport pour le même motif si les faits qui
auraient autrement pu mener à la révocation se sont produits avant la date
d’expiration.
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Section
10 was amended in July 2013. These amendments are inconsequential to the issue
at hand. The above version was in force when the
Director issued his decision on June 15, 2012.
A. Jurisdiction
[13]
The Respondent grounds its jurisdiction in
paragraph 10(2)(b). The authority to revoke a passport under this
paragraph is predicated upon the commission of an indictable offence. The
Director never said which indictable offence the Applicant committed, although
the Respondent argued in this application that it was an offence under the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA], s 117 (as it was at the
relevant time):
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117. (1) No person shall knowingly
organize, induce, aid or abet the coming into Canada of one or more persons
who are not in possession of a visa, passport or other document required by
this Act.
(2) A person who contravenes subsection
(1) with respect to fewer than 10 persons is guilty of an offence and liable
(a) on
conviction on indictment
(i) for a
first offence, to a fine of not more than $500,000 or to a term of
imprisonment of not more than 10 years, or to both, or
(ii) for a
subsequent offence, to a fine of not more than $1,000,000 or to a term of
imprisonment of not more than 14 years, or to both; and
(b) on
summary conviction, to a fine of not more than $100,000 or to a term of
imprisonment of not more than two years, or to both.
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117. (1) Commet une infraction quiconque
sciemment organise l’entrée au Canada d’une ou plusieurs personnes non munies
des documents — passeport, visa ou autre — requis par la présente loi ou
incite, aide ou encourage une telle personne à entrer au Canada.
(2) L’auteur de l’infraction visant
moins de dix personnes est passible, sur déclaration de culpabilité :
a) par
mise en accusation :
(i) pour une
première infraction, d’une amende maximale de cinq cent mille dollars et d’un
emprisonnement maximal de dix ans, ou de l’une de ces peines,
(ii) en cas
de récidive, d’une amende maximale de un million de dollars et d’un
emprisonnement maximal de quatorze ans, ou de l’une de ces peines;
b) par
procédure sommaire, d’une amende maximale de cent mille dollars et d’un
emprisonnement maximal de deux ans, ou de l’une de ces peines.
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Note
s 117 was amended slightly later but is not material to this case.
[14]
In interpreting paragraph 10(2)(b), the power
to revoke is dependent on the commission of an indictable offence in Canada or an offence of similar type in another country. The words “in committing an
indictable offence” mean that a precondition to revocation or service denial is
the commission of an indictable offence by the subject person.
[15]
There was no finding of the commission of an
indictable offence. Not only did the Director not say so (he only referred to
misuse of a passport), the Director has no jurisdiction to make such a finding.
That type of finding is a matter of criminal law to be determined by a judge,
not by a government official. The constitutional prohibition on the executive branch
of government to find someone guilty of an indictable offence is too settled to
require further elaboration.
[16]
It is noteworthy that paragraph 10(2)(b)
is not couched in terms of “has reason to believe” or “there are grounds to
believe that an offence may have been committed” or other such words used in various
other immigration provisions. Such language might well have invested the
Director with the jurisdiction he thought he had. However, in the absence of
such wording, the Director did not have the authority to find that an
indictable offence had occurred.
[17]
In addition to the above issue, in this case the
Director did not identify the provision of IRPA which was to form the basis of
the indictable offence. It was Respondent’s counsel who argued that s 117 was
the relevant provision. The Director only said that the Applicant misused his
passport. That is not per se an indictable offence.
[18]
The Applicant was entitled to know what
indictable offence was being cited against him. Failure to do so is a breach of
natural justice and procedural fairness. It is no answer that the Applicant
should have known IRPA s 117 was the relevant provision. It is not the only
provision of IRPA which could be in play (see, for example, s 118 and s 122).
Moreover, the indictable offence which grounds paragraph 10(2)(b) need
not be under IRPA – any indictable offence is sufficient.
[19]
Lastly, on this point, the place of the offence
may be critical when referring to an indictable offence. If committed in Canada, the offence must be indictable to trigger paragraph 10(2)(b). If committed
outside of Canada, the act must be an offence in the country where it was
committed and that offence must be indictable in Canada. The use of the
Applicant’s passport appears to be in St. Maarten. There is no evidence that
what the wife or the Applicant did is an indictable-like offence in that
jurisdiction.
B. Reasonableness
of Decision
[20]
Even if the Respondent was correct on his
jurisdictional arguments, this decision does not satisfy the reasonableness
criteria. Consideration of this issue includes the failure of the Director to
identify the provisions of the legislation at issue.
[21]
Based on the facts elicited here, the
Respondent’s officials had good grounds to be suspicious. The dates of the passport
and the name used raise serious questions. However, the finding in respect to
payment of $5,000 fails to recognize that it was also paid to obtain
citizenship not just a passport.
[22]
However, even if IRPA s 117 was the applicable
indictable offence found by the Director, there is inadequate analysis
justifying the conclusion that the Applicant had aided and abetted the wife’s
attempt to enter Canada on false documents.
[23]
The Director’s approach was to assume that
Passport Canada had a free-standing discretion to deal with misuse of passports
through revocation or service denial. Such discretion has been found not to
exist by Justice Hansen in Hrushka.
[24]
Without identifying which offence is claimed to
be in issue, it is not possible for the Director to show his reasons to be
reasonable.
C. Charter
[25]
I will follow the Supreme Court’s admonition to
courts not to decide Charter issues where it is not necessary to do so.
However, I do note that the Director did ameliorate the severity of the penalty
by providing limited services for urgent and compassionate circumstances. The
Court was advised that the Applicant used these services from time to time to
visit his wife.
IV. CONCLUSION
[26]
This judicial review will be granted and the
decision quashed with costs. As this was not an application before the
Respondent or Passport Canada, there is nothing to remit back for
reconsideration. Likewise, there is nothing to prevent Passport Canada from taking enforcement action on a properly grounded basis.
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