Date: 20150220

Docket: T-1092-13

Citation: 2015 FC 213

Ottawa, Ontario, February, 20, 2015

PRESENT:    The Honourable Mr. Justice Fothergill

JUDGMENT AND REASONS

I.                   Introduction

[1]               Alecia Angella Allen (the Applicant) has brought an application for judicial review of a decision by Passport Canada to refuse her request for a passport and deny her passport services for a period of five years. The Applicant asks this Court to quash the decision and order reconsideration of her passport application within 30 days.

[2]               For the reasons that follow, the application for judicial review is allowed with costs. The matter is remitted to Passport Canada for re-determination within 60 days of receipt of the Applicant’s submissions and supporting documents.

II.                Facts

[3]               While attempting to cross the border into the United States with her valid passport, the Applicant was subjected to a pat-down search. According to U.S. officials, the Canadian passport of Ms. Ehimwenma Aiwerioghene (referred to as “Ms. A” in the pleadings) was discovered hidden inside her boot.

[4]               U.S. authorities reported that the Applicant had made numerous inconsistent statements and kept changing her story.

[5]               The Applicant was denied entry by U.S. officials and was returned to Canada. U.S. officials reported the incident to Canadian authorities. Passport Canada conducted an initial investigation, but ultimately decided to take no further action until the Applicant applied for a new passport. In the meantime, Ms. A was able to recover her passport, which had been seized by U.S. officials, and successfully applied for a new passport when it expired.

[6]               More than two years after the incident at the U.S. border, the Applicant applied for a new passport. During this period she had travelled to and from the U.S. without hindrance. Upon her application to renew her passport, however, Passport Canada advised her that she was the subject of an investigation and that she might lose passport services, or even be subject to criminal prosecution for making false or misleading statements when applying for a passport.

[7]               In response to a questionnaire about the incident at the border, the Applicant denied that she had tried to conceal Ms. A’s passport. She claimed that on the day in question she and Ms. A were visiting Niagara Falls, Ontario. Ms. A did not have her purse with her, and she therefore gave the passport to the Applicant for temporary safekeeping rather than leaving it in the rental car that the Applicant later attempted to drive across the border. A letter from Ms. A corroborated this claim. However, Ms. A had previously informed Passport Canada that she had accidentally left her purse containing her passport in the rental car. Passport Canada advised the Applicant of this and other contradictions in her and Ms. A’s accounts of how the Applicant came to be in possession of Ms. A’s passport.

[8]               Passport Canada concluded that the Applicant had made false statements in her application for a passport and had used her passport in the commission of the indictable offence of possessing another person’s identity document without lawful excuse. Consequently, on February 15, 2012, Passport Canada refused the Applicant’s request for a passport under s. 9(a) of the Canadian Passport Order, SI/81-86 (Order). It also denied the Applicant passport services for five years under ss 10.2 and 10.3 of the Order.

III.             Issues

[9]               Several legal issues are raised in this application for judicial review:

                                  A.      Were the reasons provided by Passport Canada to justify its decision to refuse the Applicant passport services adequate?

                                   B.      Did Passport Canada commit a jurisdictional error by refusing the Applicant’s passport application and denying her passport services on the ground that she had committed the indictable offence of being in possession of another person’s identity document without lawful excuse?

                                   C.      Was the Applicant afforded procedural fairness?

                                  D.      Were the Applicant’s mobility rights under s. 6(1) of the Charter violated?

IV.             Standard of Review

[10]           The questions of jurisdiction and violation of a Charter right are to be reviewed against a standard of correctness (Hrushka v Canada (Minister of Foreign Affairs), 2009 FC 69 at para 13, 340 FTR 81). The decision on its merits is to be assessed against a standard of reasonableness (Sathasivam v Canada (AG), 2013 FC 419 at para 13, 431 FTR 261).

V.                Analysis

[11]           Passport Canada’s decision to refuse the Applicant’s passport application and deny her passport services for a period of five years was based upon the following findings of fact:

a)      On November 15, 2009, while driving a rental car, the Applicant attempted to enter the U.S. with her own passport. The passport of Ms. A was discovered inside her boot, and she was denied entry to the U.S. and returned to Canada;

b)      The car the Applicant was driving had not been rented in her name;

c)      In a questionnaire the Applicant completed on February 15, 2012, the Applicant stated that Ms. A had given her the passport for safekeeping while they were in Niagara Falls, Ontario and that the Applicant had placed it in her boot because they were doing a lot of walking that day. This account was corroborated by a sworn statement from Ms. A;

d)     However, when Ms. A applied to recover the passport that had been seized by U.S. officials, she declared to Passport Canada that she had left her purse, which contained her passport, in the rental car. She had travelled back to Toronto with friends in another car, and had inadvertently left her purse and the passport in the car driven by the Applicant.

e)      In a second questionnaire dated May 10, 2012, the Applicant stated that Ms. A did not have a purse with her and therefore asked the Applicant to hold her passport on her behalf.  The Applicant claimed that she kept both passports in her boot for ease of access. The Applicant also said that the contract for the rental car was in her name.

[12]           Passport Canada’s decision concluded as follows:

After a thorough review of all the information gathered throughout the investigation and your submissions it has been determined that, based on the balance of probabilities, there is sufficient information to support a conclusion that you used Canadian passport [number] issued in your name to assist you in your attempt to commit the indictable offence of being in possession of an identity document that relates to another person without lawful excuse and that you provided false or misleading information in support of your passport application.

[...]

Please note that the application of section 10(2)(b) of the Order does not require you to have been charged with, or convicted of, an offence in Canada or abroad. For this section of the Order to apply it is sufficient to determine, based on the balance of probabilities, that the passport was used in the commission of an act or omission that constitutes an indictable offence in Canada, or an act or omission in a foreign state that would constitute an indictable offence if committed in Canada.

[13]           The Applicant and the Respondent agree that Passport Canada’s decision to refuse the Applicant’s passport application and deny her passport services was premised on an adverse finding of credibility against the Applicant. However, it is not clear from a review of the decision why the Applicant’s account of how she came to be in possession of Ms. A’s passport was rejected. Instead, the decision-maker recited a number of facts and stated, without analysis, that there was sufficient information to support a conclusion that the Applicant used her passport to assist her in an attempt to commit the indictable offence of being in possession of an identity document that relates to another person without lawful excuse, and that she provided false or misleading information in support of her passport application.

[14]           The indictable offence of being in possession of an identity document that relates to another person without lawful excuse is found in s. 56.1 of the Criminal Code, which provides:

[15]           Ms. A provided two conflicting accounts of how her passport came to be in the Applicant’s possession. In her declaration to Passport Canada in support of her request to recover the passport that had been seized by U.S. officials, she stated that she had inadvertently left her purse, which contained her passport, in the Applicant’s rental car. In a sworn statement that was tendered by the Applicant in support of her application to renew her passport, Ms. A claimed that she did not have a purse with her, and she therefore gave her passport to the Applicant for temporary safekeeping. It is unclear whether Passport Canada rejected one or both accounts offered by Ms. A, or why the decision-maker concluded that the Applicant had made false statements in support of her application.

[16]           Furthermore, there was no discussion in the decision about whether the Applicant held Ms. A’s passport with her consent. Pursuant to s. 56.1(2) of the Criminal Code, the absence of consent is an element of the offence of possessing another’s identity document. If Ms. A had intentionally given her passport to the Applicant, or inadvertently left it in the Applicant’s car, this may have provided the Applicant with a lawful excuse. None of this was mentioned, let alone analysed, in Passport Canada’s decision.

[17]           Another complication is that Passport Canada’s refusal of the Applicant’s passport application and denial of passport services were based on the conclusion that the Applicant used her passport to assist her in her attempt to commit the indictable offence of being in possession of an identity document that related to another person without lawful excuse It is not explained why the decision-maker referred to an “attempt” to commit the indictable offence. More fundamentally, it is unclear how the Applicant used her own passport to commit the offence of being unlawfully in possession of Ms. A’s passport. Again, discussion and analysis are absent from Passport Canada’s decision.

[18]           Counsel for the Respondent argued that there were sufficient grounds in the material considered by the decision-maker to support the conclusions reached. This may be true, but the Court is nevertheless left in considerable doubt about how the decision-maker in fact arrived at these conclusions. Where “the supervising court has been prevented from assessing [the decision] because too little information has been provided, the reasons are inadequate” (Vancouver International Airport Authority v Public Service Alliance of Canada, 2010 FCA 158 at para 16, 320 DLR (4th) 733).

[19]           In this case the decision consisted of a recitation of facts and a final determination with no intervening analysis. In this respect, the reasons for the decision were inadequate, and the decision as a whole was unreasonable (VIA Rail Canada Inc v National Transportation Agency, [2001] 2 FC 25, 193 DLR (4th) 357 (CA)).

[20]           This is sufficient to dispose of the application for judicial review. However, as the matter will be remitted to Passport Canada for re-determination, some of the other issues raised by the Applicant are also worthy of consideration.

[21]           The Order provides in s 10(2)(b):

[22]           The Applicant maintains that s 10(2)(b) of the Order authorises the temporary denial of passport services only where the person has been convicted of an indictable offence. In this regard, the Applicant takes issue with Passport Canada’s contention that:

[...] the application of section 10(2)(b) of the Order does not require you to have been charged with, or convicted of, an offence in Canada or abroad. For this section of the Order to apply it is sufficient to determine, based on the balance of probabilities, that the passport was used in the commission of an act or omission that constitutes an indictable offence in Canada, or an act or omission in a foreign state that would constitute an indictable offence if committed in Canada.

[23]           There is conflicting jurisprudence from this Court on whether a refusal of passport services under s 10(2)(b) of the Order requires a conviction, or whether it is sufficient for Passport Canada to be satisfied on the balance of probabilities that the elements of the offence are present.

[24]           In Dias v Canada (AG), 2014 FC 64, 22 Imm LR (4th) 244 (Dias), Justice Phelan held as follows:

[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.

[25]           Dias was upheld on appeal, but on the unrelated ground that Mr. Dias – as opposed to his wife – had not used his passport to commit an indictable offence (Canada (AG) v Dias, 2014 FCA 195 at para 7).

[26]           In Siska v Passport Canada, 2014 FC 298, Justice Zinn followed Justice Phelan’s decision in Dias and also provided the following helpful commentary on the earlier jurisprudence of this Court:

[12]           In his memorandum, counsel for the Minister relied on this Court's decision in Vithiyananthan v Canada (Attorney General), [2000] 3 F.C.R. 576, [2000] F.C.J. No. 409 (QL) [Vithiyananthan] for the proposition that it is not necessary for the purposes of paragraph 10(2)(b) of the CPO that the person whose passport is being revoked has had a charge laid or been convicted of an indictable offence. At paragraphs 10 and 11 of Vithiyananthan, Justice Simpson stated as follows:

The dispute concerns the meaning of committing an indictable offence.

With regard to the word committed, it is relevant to note that section 10(a) of the CPO deals with people who have been charged with an offence, while section 9 covers both those who have been charged (sections 9(b) and (c)) and those who have been convicted (section 9(e)). In this context it is clear, and the Applicant does not dispute, that the word committed in section 10(b) of the CPO is not intended to include a requirement that a charge has been laid or that a conviction has been obtained.

(emphasis added)

[13]           The dispute in Vithiyananthan turned not on whether that applicant had "committed" an offence, rather it turned on whether it was an indictable offence as the Crown had elected to proceed summarily. What is important to note for the present purposes is that Mr. Vithiyananthan had been charged and convicted of an offence, specifically the offence then provided for in subsection 94(2) of the Immigration Act, RSC 1985, c. I-2, of having aided and abetted his cousin to enter Canada illegally.

[14]           Accordingly, the emphasized portion of the judgment recited above that is relied upon by the Minister is obiter. It was not required for the purposes of the decision.

[15]           The Applicant here, unlike Mr. Vithiyananthan, has not been charged or convicted of any of the offences referenced by the decision-maker in the decision under review.

[27]           With respect to Justice Phelan’s decision in Dias, Justice Zinn said the following:

[17]           Although it is not referred to in his Reasons, the decision in Vithiyananthan was before Justice Phelan in Dias, as it was here. Comity would not have applied there, nor here, because the passage relied upon by the Minister is obiter.

[18]           I find Justice Phelan's reasoning compelling. I agree with him that it is a precondition to passport revocation under paragraph 10(2)(b) of the CPO that the passport holder has been convicted of an indictable offence. Because Ms. Siska was never convicted, let alone charged, the decision to revoke her passport was made without authority.

[28]           Subsequent to Dias and Siska, Justice McVeigh issued her decision in De Hoedt v Canada (Minister of Citizenship and Immigration), 2014 FC 829. Justice McVeigh upheld a decision to revoke a passport under s 10(2)(b) of the Order despite the absence of a criminal charge or conviction. She referred briefly to Justice Phelan’s decision in Dias, but only in the context of a discussion of procedural fairness.  She did not allude to Justice Phelan’s conclusion, shared by Justice Zinn in Siska, that it is a precondition to passport revocation under s 10(2)(b) of the Order that the passport holder first be convicted of an indictable offence.

[29]           Justice McVeigh said the following about whether a conviction was required before a passport could be revoked under s 10(2)(b) of the Order (De Hoedt at para 33):

The use of the word “committed” rather than “convicted” or “charged” was the intent of Parliament when the section was drafted. Parliament wanted the Canadian decision maker to be able to make the determination if there was proof of the elements of the indictable offence and it was committed in a foreign country. The rational [sic] would seem to be that some foreign countries do not have the same legal processes as Canada and with this section we do not need to rely on foreign countries [sic] justice systems for a conviction of an equivalent offence.

[30]           The Order is not an enactment of Parliament, but an executive order issued by the Governor-in-Council. Accordingly, no question of parliamentary intent arises in interpreting the Order.

[31]           In my view, the language of the Order is ambiguous and can potentially be reconciled with the interpretations adopted by Justices Phelan and Zinn on the one hand, and Justice McVeigh on the other. While I agree with Justice Phelan that“[t]he constitutional prohibition on the executive branch of government to find someone guilty of an indictable offence is too settled to require further elaboration” (Dias at para 15), it is not clear to me that the Order confers this power upon the executive. A refusal of a passport under s 10(2)(b) is not a finding of criminal guilt. There are no penal consequences, and it was not suggested in this proceeding that the criminal due process rights enshrined in ss 7 and 11(d) of the Charter are engaged. The Order in s 10(2)(a) permits refusal of a passport based upon a criminal charge in a foreign jurisdiction, and s 10(2)(b) permits refusal based on the commission of an offence outside Canada without the need for a domestic conviction (although there is a requirement of dual criminality between the foreign state and Canada). From a policy perspective, it seems reasonable that Passport Canada might refuse to issue a passport on the ground of serious misconduct that occurs outside Canada without requiring a criminal conviction in the foreign country.  As Justice McVeigh states, foreign countries do not have the same legal processes as Canada, and Passport Canada should not have to rely on foreign countries’ justice systems to establish whether or not the serious misconduct occurred.

[32]           As noted previously, the Order is not a statute but executive legislation issued by the Governor-in-Council. Given the conflicting jurisprudence of this Court, it would be unwise for Passport Canada to rely on s 10(2)(b) of the Order as it presently stands to refuse a passport or temporarily deny passport services in the absence of a criminal conviction, either in Canada or in a foreign state. The ambiguity in s 10(2)(b) could be resolved by amendment of the Order by the Governor-in-Council. Failing that, the conflicting jurisprudence of this Court must be settled by a decision of the Court of Appeal.

[33]           In the meantime, I am inclined to follow the decisions of Justice Phelan in Dias and Justice Zinn in Siska. I would resolve the ambiguity in the Order in favour of the Applicant. I therefore agree with Justices Phelan and Zinn that, as the Order presently stands, it is a precondition to passport revocation or denial of passport services under s 10(2)(b) of the Order that the passport holder first be convicted of an indictable offence. The Applicant in this case was neither charged with nor convicted of an indictable offence, and it follows that Passport Canada was without jurisdiction to deny passport services to her under s 10(2)(b) of the Order.  The application for judicial review must be allowed on this ground as well.

[34]           It is sufficient if an applicant is provided with disclosure of the facts alleged and the information collected in the course of the investigation, and is given an opportunity to respond (Kamel v Canada (AG), 2008 FC 338 at paras 79–88, 294 DLR (4th) 708); Abdi v Canada (AG), 2012 FC 642 at paras 24–25, [2012] FCJ No 945).

[35]           The Applicant complains that she did not receive disclosure of the document generated by the U.S. Customs official until proceedings were commenced in this Court. The U.S. document reflected badly on the Applicant’s credibility, and she states that she should have been given an opportunity to respond. More generally, the Applicant says that the delay between the incident and Passport Canada’s rejection of her passport application more than two years later compromised her ability to respond effectively. She maintains, as an example, that she was unable to obtain documentation corroborating her assertion that the car was rented in her name because records were no longer available.

[36]           I am not persuaded by the Applicant’s argument. I agree with counsel for the Respondent that the incident at the U.S. border was serious, and it would have been apparent to the Applicant that she might encounter further difficulties with either U.S. or Canadian authorities as a result. Questions of her credibility were put in issue by her own statements to Passport Canada and those of Ms. A.

[37]           I am satisfied that the Applicant was apprised of the material facts and information disclosed by the investigation, and that she was given a reasonable opportunity to respond.

[38]           The Applicant submits that Passport Canada’s refusal of her passport application and denial of passport services for a period of five years infringed her right to mobility under s 6(1) of the Charter in a manner that cannot be justified in a free and democratic society under s 1.

[39]           The Applicant’s Charter argument was not initially included among the grounds advanced in her application for judicial review. It was raised for the first time in her written argument.  Counsel for the Respondent understandably objected to the argument being advanced, given the Crown’s inability to adduce evidence to justify any infringement without applying to supplement the record. Counsel for the Applicant agreed to advance only the technical legal point that the Order, having been issued under the Royal Prerogative, is not sufficiently prescribed by law to support an infringement of a Charter right.

[40]           In Kamel v Canada (AG), 2009 FCA 21, [2009] 4 FCR 449, the Federal Court of Appeal considered whether the Order is sufficiently precise to be “prescribed by law” for the purposes of s 1 of the Charter. The Court of Appeal held at paras 19–31 that it was, concluding as follows:

[31]      I conclude that section 10.1 of the Order satisfies the test of precision that is required to constitute a "law" (règle de droit) within the meaning of section 1 of the Charter. Justice Noel erred in law by confusing the constitutional validity of a provision with the validity of the decision made under that provision. If the court believes that, in a given case, the link between the refusal to issue a passport and the national security of Canada or another country was not established or that the Minister's decision does not meet the other requirements of Canadian administrative law, the remedy is not to strike down the enabling provision but to set aside the decision.

[41]           While I accept the Applicant’s position that the question of whether the Royal Prerogative can ever provide the foundation for a Charter-infringing provision was not considered by the Federal Court of Appeal in Kamel, such a finding would be inconsistent with the result of that ruling. Furthermore, a finding that executive legislation based upon the Royal Prerogative is not “prescribed by law” for the purposes of s 1 of the Charter would have implications beyond the domain of passports, particularly in the areas of international relations, national security and national defence.

[42]           I am not satisfied that the Charter issue has been adequately canvassed before the Court on this application for judicial review. In light of my conclusions with respect to the first two grounds advanced by the Applicant, it is not necessary for me to decide the Charter issue and I decline to do so.

[43]           The Applicant asks that the decision of Passport Canada to refuse her passport application and deny her passport services for a period of five years be set aside. She also asks this Court to require Passport Canada to reconsider her passport application within 30 days.

[44]           Counsel for the Respondent objects to the 30-day deadline. He says that this is insufficient time for Passport Canada to reconsider the matter, given the questions of credibility that remain and the additional information provided by the Applicant since the first decision was made.

[45]           I accept that 30 days may be too short a time for Passport Canada to properly reconsider the Applicant’s passport application. However, I agree with counsel for the Applicant that refusal of a passport is a serious matter, and that considerable time has already elapsed since the Applicant was last permitted to hold a passport. I therefore direct Passport Canada to reconsider the Applicant’s passport application within 60 days of receipt of the Applicant’s submissions and supporting documents. If further time is required, the Respondent is at liberty to apply to this Court for an extension of time.

JUDGMENT

THIS COURT’S JUDGMENT is that the application for judicial review is allowed with costs. Passport Canada must reconsider the Applicant’s application for a passport within 60 days of receipt of the Applicant’s submissions and supporting documents.

“Simon Fothergill”

FEDERAL COURT

SOLICITORS OF RECORD

APPEARANCES:

SOLICITORS OF RECORD: