Docket: T-794-14
Citation:
2016 FC 456
Ottawa, Ontario, April 22, 2016
PRESENT: The
Honourable Mr. Justice Gleeson
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BETWEEN:
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NAVJEET SINGH
DHILLON
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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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JUDGMENT AND REASONS
I.
Background
A.
Facts
[1]
The applicant, Navjeet Singh Dhillon [Mr.
Dhillon or the applicant], was approached by a Border Services Officer [BSO] as
he was boarding an aircraft departing from Calgary to Europe in August, 2013.
In response to questioning from the BSO, Mr. Dhillon advised that he was in
possession of more than $10,000, Canadian, in cash. The BSO advised Mr. Dhillon
that exporting cash in excess of $10,000, Canadian, not previously declared to
the Canada Border Services Agency [CBSA], was in contravention of section 12 of
the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, SC
2000, c 17 [the Contravention]. Mr. Dhillon reported that he was unaware of the
obligation to declare currency exports. The currency in Mr. Dhillon’s
possession was seized. Mr. Dhillon was forthright and fully cooperative with
the BSO.
[2]
The BSO provided Mr. Dhillon with the option of
having the currency returned to him and to continue on his journey upon payment
of a fine in the amount of $250, the lowest penalty available for a contravention
of section 12 of the Proceeds of Crime (Money Laundering) and Terrorist
Financing Act, SC 2000, c 17 [Act] pursuant to paragraph 18(a) of the Cross-border
Currency and Monetary Instruments Reporting Regulations, SOR/2002-412. Mr.
Dhillon opted to pay the fine and he was permitted to board his flight. Mr.
Dhillon states in his affidavit that prior to agreeing to pay the fine he asked
the BSO if there would be any customs or immigration related consequences. The
BSO responded in the negative. Mr. Dhillon did not challenge the BSO’s finding
of the Contravention, an option that was open to him for a 90 day period under
section 25 of the Act.
[3]
Between August, 2013 and November, 2014, Mr.
Dhillon re-entered Canada after international travel on eleven occasions. On
each of these occasions he was referred to a secondary examination by CBSA
officials. In each case his luggage was searched and he was delayed for 15 to
45 minutes. He was never provided a reason for the referrals.
[4]
Mr. Dhillon believed, contrary to what he had
been told by the BSO in August, 2013, that the referrals were related to the
Contravention. He commenced this application for judicial review challenging
the decision that he believed had been made to place him on a lookout list. As
a result of this application, Mr. Dhillon became aware that the Contravention
had triggered the application of what CBSA refers to as the Previous Offender
Regime and Mr. Dhillon refers to as the Previous Offender Process. The Previous
Offender Process led to his automatic referral to secondary examination on ten
occasions between August, 2013 and November, 2014, the eleventh referral to
secondary examination in that time occurred as a result of a discretionary
decision by a BSO.
B.
The Previous Offender Process
[5]
The Previous Offender Process is described by
the respondent’s affiant, Dawn Lynch, Manager of Enforcement Systems in the
Enforcement and Intelligence Programs Section of the Business Systems
Integration Division in the Programs Branch of the CBSA.
[6]
CBSA maintains and monitors enforcement
information within the Integrated Customs Enforcement System [ICES]. The
Previous Offender Process is a component of the ICES.
[7]
When a traveller enters the country identity
documents are scanned and the traveller’s name is queried against the ICES
records. Where a traveller has a record of contravention there is a possibility
that the Previous Offender Process will automatically generate a direction to
the BSO to refer the traveller for a secondary examination.
[8]
The inclusion of an individual in the Previous
Offender Process is non-discretionary. Where a contravention is recorded and a
penalty imposed within the ICES a point value is automatically generated. The
point value has been determined for each category of offence and is dependent
upon a combination of the type of offence, the value of the commodities
involved and the type of commodity. The points value becomes the percentage
frequency that a computer generated referral to a secondary examination will
occur on subsequent entries into Canada. An individual can only be removed from
the Previous Offender Process where an enforcement action is determined to have
been invalid pursuant to section 25 of the Act.
[9]
In the case of Mr. Dhillon, upon the entry of
the Contravention into the ICES, the system assigned 45 points for the failure
to report the export of currency and a further 45 points on the basis that the
commodity involved was currency. With a total point score of 90, Mr. Dhillon’s
subsequent entries into Canada would result in a computer generated referral to
secondary examination 90% of the time.
[10]
The Previous Offender Process recognizes and
accounts for subsequent compliance through the reduction of the point score on
an annual and then semi-annual basis. Where a traveller demonstrates compliance
the point score will be reduced to zero within a maximum of six years resulting
in no further automatic referral through the Previous Offender Process,
assuming one’s continued compliance.
[11]
The entire Previous Offender Process is
automated and controlled within the ICES. CBSA officials do not possess any
discretionary authority over the process. While section 25 of the Act provides
a right of review of a CBSA officer’s decision that section 12 of the Act has
been contravened, there is no independent ability to review the application of
the Previous Offender Process to an individual who has been found in
contravention of the Act.
II.
Relevant Legislation
[12]
Relevant extracts from the Canada Border
Services Agency Act, SC 2005, c 38 [CBSA Act], the Proceeds of Crime
(Money Laundering) and Terrorist Financing Act, SC 2000, c 17, the Customs
Act, RSC 1985, c 1 (2nd Supp), the Federal Courts Act, RSC 1985, c
F-7 [Federal Courts Act] and the Cross-border Currency and Monetary
Instruments Reporting Regulations, SOR/2002-412 are reproduced in Appendix “A” to
this Judgment and Reasons.
III.
Issues
A.
Position of the Parties
[13]
In initially advancing this judicial review
application, Mr. Dhillon took the position that CBSA lacked jurisdiction to
subject him to the Previous Offender Process and that the mandatory referrals
to secondary examination violated his section 10 rights under the Canadian
Charter of Rights and Freedoms, Part I of the Constitution Act, 1982,
being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].
The applicant’s written submissions did not address the Charter argument
and in oral submissions counsel for the applicant advised that Mr. Dhillon is
not pursing arguments relating to either the Charter or CBSA’s
jurisdiction to create and implement the Previous Offender Process. Mr. Dhillon
also did not take issue with CBSA recording the history of its interactions
with him into the ICES. Nor did he take issue with a BSO, at the point of
entry, complying with a system generated mandatory referral to secondary
examination.
[14]
Instead the applicant’s arguments focused on the
manner in which CBSA subjected him to the Previous Offender Process. The
applicant maintains that CBSA’s implementation of the Previous Offender Process
constitutes a fettering of discretion, a breach of procedural fairness, and is
contrary to the applicant’s legitimate expectations. The applicant submits that
this application is not challenging the policy reflected by the Previous
Offender Process but rather the manner in which CBSA applied the policy to him.
The applicant’s issue is with the decision to enter him into the system in the
first place.
[15]
The respondent takes the position that the
Previous Offender Process is an administrative consequence arising from Mr.
Dhillon’s admitted Contravention, that there is no decision for this Court to
review and as such there is no discretion to fetter nor has there been a denial
of procedural fairness.
B.
Issues to be Addressed
[16]
The application requires that I address the following
issues:
1)
Is there a decision or matter to review?
2)
What standard of review applies?
3)
What are the consequences of subjecting the applicant
to the Previous Offender Process?
4)
If the applicant is successful, what is the
appropriate remedy?
IV.
Analysis
A.
Issue 1 – Is there a Decision or matter to review?
[17]
The respondent submits that CBSA, in advancing
its mandate under section 5 of the CBSA Act to manage risk while facilitating
the flow of goods through Canada’s borders relies on a variety of indicators to
identify which travellers will be subject to a full examination and which will
benefit from an abbreviated examination on entry. This is reflected in a policy
framework that automatically places individuals who have previously contravened
the Act or other statutes administered by CBSA into a class that will be
selected for full examination on a specific proportion of their entries into
Canada. The respondent further submits that within this framework the only
decision made in respect of the applicant was to find that he contravened
section 12 of the Act, a fact that the applicant concedes. No specific or
individual decision was made to subject the applicant to the Previous Offender
Process.
[18]
The respondent further argues that as the
Previous Offender Process does not involve the exercise of discretion, the
applicant’s complaint is about the policy underpinning the Previous Offender
Process. The respondent argues that other than its legality, a policy decision
is not subject to judicial scrutiny on judicial review (Canadian Assn of the
Deaf v Canada, 2006 FC 971 at paras 75-77, 298 FTR 90 [Canadian Assn of
the Deaf]; Moresby Explorers Ltd v Canada (Attorney General), 2007
FCA 273 at para 24, 284 DLR (4th) 708).
[19]
The applicant argues that he is not seeking a
review of the CBSA policy rather he is seeking a review of the decision to
apply that policy to him. The applicant argues that the respondent cannot
escape judicial scrutiny of its process simply because it has chosen to remove
all discretion within that process through its automation.
[20]
While I take no issue with the respondent’s
position that the grounds upon which government policy can be challenged are
limited, this does not, in my view, foreclose consideration of this
application.
[21]
In order to determine whether or not an
application engages questions of policy it is necessary to first properly
characterize the circumstances of the dispute (Smith v Canada, 2009 FC
228 at paras 30-31, 307 DLR (4th) 395). In this case the applicant’s concern
arises out of the failure of CBSA to provide him with any notice of the
possibility of a more detailed examination upon entry into Canada as a result
of the Contravention. The applicant is not seeking a review of CBSA policy but
rather seeks a review of the manner in which the Previous Offender Process has
been applied in light of the impact that his inclusion in the process has had
upon him.
[22]
I am further of the view that the absence of a “decision” to capture the applicant in the Previous
Offender Process is not determinative of this Court’s jurisdiction under the Federal
Courts Act. In this respect I agree with the view expressed by Justice Anne
Mactavish in Shea v Canada (Attorney General), 2006 FC 859 at paras
42-44, 296 FTR 81 where she states:
[42] The absence of a
"decision" is not a bar to an application for judicial review under
the Federal Courts Act, as Section 18.1 provides the Court with
jurisdiction to grant relief to a party affected by "a matter"
involving a federal board, commission or other tribunal: Canadian Museum of
Civilization Corp. v. Public Service Alliance of Canada, Local 70396 [2006]
F.C.J. No. 884, 2006 FC 703, at para. 47.
[43] The role of this Court thus
extends beyond the review of formal decisions, and extends to the review of
"a diverse range of administrative action that does not amount to a
'decision or order', such as subordinate legislation, reports or
recommendations made pursuant to statutory powers, policy statements,
guidelines and operating manuals, or any of the myriad forms that administrative
action may take in the delivery by a statutory agency of a public
programme.": Markevich v. Canada, [1999] 3 F.C. 28 (QL) (T.D.), at
para. 11, reversed on other grounds, [2001] F.C.J. No. 696, reversed on other
grounds, [2003] S.C.J. No. 8. See also Nunavut Tunngavik Inc. v. Canada
(Attorney General) [2004] F.C.J. No. 138, 2004 FC 85, at para. 8.
[44] A wide range of administrative
actions have been found to come within the Court's jurisdiction: see, for example
Gestion Complexe Cousineau (1989) Inc. v. Canada (Minister of Public Works and
Government Services), [1995] 2 F.C. 694; Morneault v. Canada (Attorney
General), [2001] 1 F.C. 30 (C.A.), and Larny Holdings (c.o.b Quickie
Convenience Stores) v. Canada (Minister of Health), [2003] 1 F.C. 541
(T.D.) .), 2002 FCT 750.
[23]
Similarly, in Canadian Assn of the Deaf
at para 76, Justice Richard Mosely states “Judicial
review is not restricted to decisions or orders that a decision maker was
expressly charged to make under the enabling legislation. The word “matter”
found in section 18.1 of the Federal Courts Act is not so restricted but
encompasses any matter in regard to which a remedy might be available under
section 18 or s-s18.1(3)”.
[24]
The matter to be reviewed here arises out of
CBSA’s statutory mandate set out in section 5 of the CBSA Act to provide
integrated border services that supports national security and public safety
priorities while facilitating the flow of persons and goods through Canada’s
borders. The respondent stresses that there is an inherent tension between the
mandated security and safety responsibilities and the facilitation
responsibility resulting in risk management being an inherent part of the CBSA
function, and the Previous Offender Process is one such risk management
strategy. The issues raised however relate not to policy itself but the manner
in which it has been implemented. This is a “matter”
coming within the scope of section 18.1 of the Federal Courts Act and is
justiciable.
B.
Issue 2 – What is the Standard of Review?
[25]
The applicant raises questions relating to
procedural fairness and the fettering of discretion in this application and
submits that the correctness standard of review applies. The respondent has not
advanced a position on the standard of review instead arguing that in the
absence of a decision there is nothing to be reviewed.
[26]
The jurisprudence establishes that in
considering questions related to the fettering of discretion and breaches of
procedural fairness the correctness standard applies (Okomaniuk v Canada
(Minister of Citizenship and Immigration), 2013 FC 473 at paras 20-21, 432
FTR 143).
C.
Issue 3 – What are the Consequences of
Subjecting the Applicant to the Previous Offender Process?
[27]
This judicial review application turns on
whether or not the nature of the consequence resulting from applicant’s
inclusion in the Previous Offender Process is such that it triggered an
obligation upon the respondent to provide the applicant with notice, an
opportunity to respond and to maintain the discretion for individual decision makers
to consider and reach a determination on the applicant’s inclusion in the
Previous Offender Process.
[28]
The applicant argues in his Amended Notice of
Application and written submissions that subjecting him to repeated referrals
to secondary examination due to the Contravention constitutes an additional
penalty or sanction. In oral submissions the applicant clarified this position
arguing that while mandatory referral to secondary examination is not a penalty
or sanction, it is a repercussion or consequence which impacts the applicant.
The applicant argues that he is singled out from other travellers and is being
detained in the physical sense, but not the legal sense, as the secondary
examination is conducted. As such the applicant argues the respondent had a
duty to provide notice of the potential for more detailed examinations on
subsequent entries into Canada and to consider the underlying circumstances of
a contravention when determining whether or not to subject him to the Previous
Offender Process.
[29]
The respondent submits that it is well-established
in the jurisprudence that CBSA has the right to conduct a full examination of
every traveller seeking to enter Canada. The respondent further submits that
the jurisprudence establishes that a full examination includes both the primary
and secondary examination undertaken by a BSO. The respondent argues, relying
on the evidence of Ms. Lynch, that while CBSA has the right to conduct a full
examination of all travellers it does not do so in every case because of the
practical challenges this presents in ensuring the efficient movement of goods
and people across the border. Instead the CBSA has adopted a risk management
strategy at Canada’s borders that allows some travellers to undergo a less
rigorous examination. However, this risk management policy does not create a
right or expectation that any traveller will avoid a full examination upon
entry into Canada.
[30]
I agree with the respondent. A process that
results in an individual’s mandatory referral to secondary examination upon
entry into Canada, based on a prior contravention by that individual of program
legislation which CBSA administers, does not trigger procedural fairness
obligations on the part of CBSA. I find support for this conclusion in the
jurisprudence, much of which the respondent cited, on the nature of the
different types of searches and examinations at the border and ports of entry.
Although in that jurisprudence Charter rights are at issue, the
reasoning on the consequences of primary and secondary examinations apply to
the present case.
[31]
In R v Simmons, [1988] 2 S.C.R. 495 Chief
Justice Dickson describes, at paragraph 27, the three categories or types of
border searches to which a traveller entering Canada may be subject:
It is, I think, of importance that the cases
and the literature seem to recognize three distinct types of border search. First
is the routine of questioning which every traveller undergoes a port of entry,
accompanied in some cases by a search of baggage and perhaps a path or frisk of
outer clothing. No stigma is attached to being one of the thousands of
travellers who are daily routinely checked in that manner upon entry to Canada
and no constitutional issues are raised [emphasis added]. It would be
absurd to suggest that a person in such circumstances is detained in a
constitutional sense and therefore entitled to be advised of his or her right
to counsel. The second type of border search is the strip or skin search of the
nature of that to which the present appellant was subjected, conducted in a
private room, after a secondary examination and with the permission of a
customs officer in authority. The third and most highly intrusive type of
search is that sometimes referred to as the body cavity search, in which
customs officers have recourse to medical doctors, the x-rays, to a medics, and
to other highly invasive means.
[32]
In Dehghani v Canada (Minister of Employment
and Immigration), [1993] 1 S.C.R. 1053 at paras 38-39 [Dehghani],
Justice Iacobucci, writing for a unanimous Supreme Court of Canada explained
that the first type of border search or examination described in Simmons
encompasses both the primary and secondary examination that a traveller is
subject to undergo upon entry into Canada. This routine examination does not
attract any stigma nor, as conceded by the applicant, does it amount to a
detention in the Constitutional sense (R v Jones [2006] OJ No 3315, at
paras 32-37, 81 OR (3d) 481 (CA) [Jones]).
[33]
Similarly, in R v Nagle, 2012 BCCA 373 at
para 34, 97 CR (6th) 346 [Nagle], Justice Chiasson and Justice Bennett
held for a unanimous British Columbia Court of Appeal that:
In the context of border crossings, routine
questioning, the search of baggage and pat-down searches are standard
practices, applicable to every ordinary traveller, and is expected and
tolerated by anyone wishing to travel internationally. This conduct by border
agents does not engage constitutional rights, including detention, the right to
counsel or a reasonable expectation of privacy.
[34]
It is clear that the jurisprudence does not
distinguish between initial routine questioning that a traveller is subjected
to on an initial screening and the baggage and pat-down search that occurs in a
secondary examination (R v Darlington, [2011] OJ No 4168 at para 75, 97
WCB (2d) 370 (Sup Ct)). These are two parts of the first category of
examination identified in Simmons. The jurisprudence demonstrates that a
secondary examination within the framework of the first category of search does
not attract or engage a different set of factors for legal analysis or
consideration (Dehghani at paras 38-39; Jones at paras 32-36).
[35]
In R v Hudson, [2005] OJ 5464 at paras
34-35, 77 OR (3d) 561 (CA) [Hudson] the Ontario Court of Appeal
considered the impact of an automatic referral to secondary examination of
persons refused entry to the United States. Citing Dehghani, the Court
concluded that an automatic referral to secondary examination arising out of
that policy does not remove that examination from the first category of search
set out in Simmons:
[35] It is important to note that
secondary inspection, in this context, does not remove it from the first
category of search set out in Simmons. Iacobucci J. in Dehghani v.
Canada (Minister of Employment and Immigration), [1993] 1 S.C.R. 1053 at 1073
had this to say about a secondary inspection in the context of the Immigration
Act, R.S.C., 1985, c. I-2:
[I]t would be unreasonable to expect
the screening process for all persons seeking entry into Canada to take place
in the primary examination line. For those persons who cannot immediately
produce documentation indicating their right of entry, the screening process
will require more time, and a referral to a secondary examination is therefore
required. There is, however, no change in the character of the examination
simply because it is necessary for reasons of time and space to continue it at
a later time in a different section of the processing area. The examination
remains a routine part of the general screening process for persons seeking
entry to Canada.
[36]
In summary the jurisprudence establishes that:
(1) the first category of border search or examination is comprised of two
components, primary and secondary examinations (Simmons at para 27; Dehghani
at paras 38-39); (2) these components are “standard
practices, applicable to every ordinary traveller” (Nagle at para
34); (3) a first category border examination does not engage constitutional
rights, the right to counsel or a reasonable expectation of privacy; (4) a
secondary examination within the first category does not attract or engage a
different set of factors for legal analysis or consideration; and (5) that a
mandatory referral to secondary examination arising out of a practice or policy
does not remove it from the first category of border search described in Simmons
(Hudson at paras 34-35).
[37]
Referral to secondary examination as a result of
the Previous Offender Process does not constitute an additional sanction,
penalty or legal consequence.
[38]
In the circumstances of this case, I am unable
to conclude that the consequence Mr. Dhillon complains of, a consequence that
is a standard practice and applicable to all travellers, imposes any procedural
fairness obligations upon CBSA (Baker v Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817 at para 20 [Baker]). CBSA has
implemented the Previous Offender Process to strike a balance between the
competing goals in discharging its statutory mandate under section 5 of the
CBSA Act to support national security and public safety while at the same time
facilitating the free flow of persons and goods. Relying on prior
contraventions of program legislation which CBSA administers and enforces under
paragraph 5(a) of the CBSA Act in pursuit of this objective is both rational
and connected to the CBSA mandate.
[39]
In addition, the evidence also demonstrates that
the Previous Offender Process is intended to enhance the efficiency of the
examination process at points of entry by automating some of the processes an
experienced BSO would follow if they had the opportunity to fully review the
history of individuals seeking to enter Canada (Cross-examination of Dawn Lynch
on her Affidavits, Applicant’s Application Record, Volume I, Tab 8 at page
282).
[40]
The Previous Offender Process essentially
functions as part of CBSA’s institutional memory. Its automation does not
constitute a fettering of discretion because the process does not lead to
automatic referrals to secondary examinations upon every attempted entry into
Canada. Instead, the Previous Offender Process is designed to recognize future
consistent compliance by decreasing the frequency of mandatory secondary
examinations, presumably on the basis that compliance reflects a reduction in
risk. This continued reduction in the frequency of automatic referrals through
the Previous Offender Process demonstrates the latter’s function as
institutional memory: the longer Mr. Dhillon complies with the Act, the less
likely that system will remember his Contravention at the time of Mr. Dhillon’s
entry into Canada.
[41]
While there is no doubt that the applicant
subjectively views the inconvenience of frequent referrals for secondary
examination as a significant negative consequence, that subjective view is not
objectively sustainable in the context of port of entry examinations.
[42]
The applicant also takes issue with the lack of
notice of the consequence in light of his specific request for information
about the immigration and customs consequences at the time of the
Contravention. The respondent notes that the applicant was not misled by the
BSO since he specifically asked about consequences flowing from the payment of
the fine as opposed to the commission of the Contravention.
[43]
It would have been preferable had the BSO
advised Mr. Dhillon that he may be subject to a more detailed examination upon
entry as a result of the Contravention. Yet this information is set out in the
publicly available CBSA publication entitled “I
Declare: A guide for residents of Canada returning to Canada” and is
accessible on the CBSA website. It states “A record of
infractions is kept in the CBSA computer system. If you have an infraction
record, you may have to undergo a more detailed examination on future trips.
You may also become ineligible for NEXUS and CANPASS programs” (Exhibit
D to the Affidavit of Dawn Lynch, Applicant’s Application Record, Volume I, Tab
6D at page 151). Moreover, the answer provided by the BSO is irrelevant to the
consequence, in that it is the Contravention itself not the payment of the fine
that led to Mr. Dhillon being included in the Previous Offender Process. As
noted Mr. Dhillon has not disputed the fact of the Contravention.
[44]
In light of my conclusions there is no need to
address the question of remedy.
V.
Costs
[45]
The parties advised in oral submissions that
they have agreed to a global costs award of $5000 inclusive of disbursements.
VI.
Conclusion
[46]
The subjection of the applicant to the Previous
Offender Process as a result of his Contravention of section 12 of the Act and
in turn his mandatory referrals for secondary examination is reviewable by this
Court. However, the consequences arising out of CBSA’s actions in these
circumstances do not engage rights, privileges or interests that impose
procedural fairness obligations upon the respondent (Baker at para 20).
Nor, based on the circumstances of this case, does Mr. Dhillon’s inclusion in
the Previous Offender Process constitute a fettering of CBSA’s discretion.
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