Docket: T-288-16
Citation:
2016 FC 1304
Ottawa, Ontario, November 25, 2016
PRESENT: The
Honourable Mr. Justice Southcott
BETWEEN:
|
JADE ELIZABETH THELWELL
|
Applicant
|
and
|
THE ATTORNEY GENERAL OF CANADA
|
Respondent
|
JUDGMENT AND REASONS
I.
Overview
[1]
This is a judicial review of a decision by the
Passport Program of Citizenship and Immigration Canada [CIC] dated November 30,
2015, which refused to reconsider an earlier decision denying the Applicant’s
passport application and imposing a five-year period of refusal of passport
services, pursuant to ss. 9(1)(a) and 10.2(1) of the Canadian Passport Order,
SI/81-86 [the Passport Order]. The original refusal was based on the conclusion
that the Applicant had provided false or misleading information in her passport
application.
[2]
As explained in greater detail below, this
application is allowed, because the impugned decision by CIC is a product of
fettered discretion and fails to recognize the power to reconsider its earlier
decision.
II.
Background
[3]
The Applicant, Jade Elizabeth Thelwell, is a
Canadian citizen, born on March 12, 1992. Ms. Thelwell is an aspiring pop
singer, using the alias “Jade Naraine”, and is
actively pursuing a career in the music industry. Ms. Thelwell explains that she
worked in the past with a potential investor whose interest in her career turned
out to be disingenuous. She reacted negatively to this and contacted this man repeatedly.
Her actions resulted in criminal charges of extortion and criminal harassment
being laid by the Toronto Police Service [TPS].
[4]
Due to a bail condition related to these
charges, Ms. Thelwell’s passport with number GF276964 was seized by the TPS on
December 10, 2014. The Crown later withdrew the extortion charge, and Ms.
Thelwell pled guilty to criminal harassment, for which she received an absolute
discharge. Ms. Thelwell’s evidence is that the TPS did not release her passport
and that her criminal defence lawyer advised her to apply for a new one.
[5]
Ms. Thelwell applied for a new passport on June
17, 2015. Her application was accompanied by a declaration that her passport
GF276964 was “…about to expire, water-damaged,
inaccessible, thrown out by someone else.” Her position in this judicial
review application is that she did not declare that her most recent passport
had been seized by the police because, based on the absolute discharge and her
criminal lawyer’s advice, she did not believe she was required to declare
information that would reveal she had been convicted of a criminal offence.
[6]
On June 22, 2015, the TPS advised CIC that they
were in possession of a passport belonging to Ms. Thelwell, which had been
seized from her pursuant to a bail condition. On July 3, 2015, in a
questionnaire requested by CIC, Ms. Thelwell stated that she could not remember
the circumstances under which her passport GF276964 had been lost, although she
thought it had occurred in approximately December 2014, and that she did not
file a police report because she knew the passport was “…thrown
out/destroyed. Not lost”.
[7]
On July 31, 2015, the Investigations Division,
Passport Integrity Branch of CIC advised Ms. Thelwell by letter that she was
the subject of an investigation, as information had been received that she may
have submitted false and/or misleading information in support of her passport
application. In an additional questionnaire requested by CIC and submitted on July
31, 2015, Ms. Thelwell stated that no passport of hers had ever been seized by
the police. However, in that same questionnaire, in response to a question
advising that CIC had received information from the TPS that her passport
GF276964 had been seized as part of a bail condition, Ms. Thelwell replied that
she was arrested and her most recent passport was taken but was not returned when
the case was over.
[8]
Ms. Thelwell and CIC exchanged further
correspondence in August 2015. She stated that, when she declared the passport
to be damaged or thrown out, she was referring to the previous passport issued
in her name and not the most recent passport. However, CIC concluded that Ms.
Thelwell’s previous passport application contradicted this description of how
the previous passport had been lost. By letter dated August 14, 2015, CIC
advised Ms. Thelwell that its investigation had concluded and that a decision
would be made on her file, including whether to impose a period of refusal of
passport services. Ms. Thelwell provided further correspondence to CIC referring
to the negative impact that being without a passport would have on her career
in the music industry.
[9]
Based on the information provided by Ms.
Thelwell and CIC’s investigations, CIC issued a decision on September 11, 2015,
refusing to issue a passport in Ms. Thelwell’s name, pursuant to s. 9(1)(a) of
the Passport Order, and further imposing a period of refusal of passport
services until June 17, 2020, pursuant to s. 10.2(1) of the Passport Order. The
refusal period was computed to correspond with the date Ms. Thelwell submitted
her passport application, June 17, 2015, making this a five-year refusal of
passport services.
[10]
CIC’s decision referred to having taken into
consideration the application, questionnaires and other information provided by
Ms. Thelwell. The decision stated that it had been determined that there was
sufficient ground to support a conclusion that Ms. Thelwell provided false or
misleading information in the declaration submitted with her passport
application. The decision also communicated that Passport Program decisions are
considered final as of the date the decision is rendered and that individuals
who choose to challenge a decision may do so by filing an application for
judicial review with the Federal Court within thirty days of the date of the
decision.
[11]
On October 29, 2015, Ms. Thelwell’s counsel
provided written submissions to CIC, requesting reconsideration of the five
year refusal period imposed in CIC’s decision. These submissions included
information explaining the impact of this period on Ms. Thelwell’s career as an
aspiring pop singer for whom travel to the USA is critical for success.
[12]
In a decision issued on November 30, 2015, the
Director of the Passport Program Integrity Branch of CIC wrote to Ms. Thelwell,
acknowledging receipt of these submissions but advising that the decision taken
by the Passport Program stands. It is this decision by CIC on November 30, 2015
that is the subject of this judicial review.
III.
Issues
[13]
Ms. Thelwell has identified the following as the
issues for the Court’s consideration in this application for judicial review:
A.
What is the standard of review?
B.
Did the Director fetter his discretion or
otherwise err by failing to recognize that he had the power to reconsider the
period of passport refusal?
C.
Was it an error not to reconsider the
application in light of the new evidence?
IV.
Analysis
A.
What is the standard of review?
[14]
On the subject of the standard of review, the
Respondent relies on authority that decisions to refuse, revoke or withhold
passport services are reviewable on a standard of reasonableness (see, e.g. Brar
v Canada (Attorney General), 2014 FC 763, at para 25). Ms. Thelwell does
not take issue with this general proposition but, in the specific context of an
alleged fettering of discretion, she relies upon the decision in Stemijon
Investments Ltd. v Canada (Attorney General), 2011 FCA 299 [Stemijon].
In that case, the Federal Court of Appeal analysed the standard of review applicable
to an allegation of fettered discretion as follows, at paragraphs 21 to 24:
[21] The appellants’ submissions, while
based on reasonableness, seem to articulate “fettering of discretion” outside
of the Dunsmuir reasonableness analysis. They seem to suggest that
“fettering of discretion” is an automatic ground for setting aside
administrative decisions and we need not engage in a Dunsmuir-type
reasonableness review.
[22] On this, there is authority on the
appellants’ side. For many decades now, “fettering of discretion” has been an
automatic or nominate ground for setting aside administrative decision-making:
see, for example, Maple Lodge Farms Ltd. v. Government of Canada, [1982]
2 S.C.R. 2 at page 6. The reasoning goes like this. Decision-makers must follow
the law. If the law gives them discretion of a certain scope, they cannot, in a
binding way, cut down that scope. To allow that is to allow them to rewrite the
law. Only Parliament or its validly authorized delegates can write or rewrite
law.
[23] This sits uncomfortably with Dunsmuir,
in which the Supreme Court’s stated aim was to simplify judicial review of the
substance of decision-making by encouraging courts to conduct one, single
methodology of review using only two standards of review, correctness and
reasonableness. In Dunsmuir, the Supreme Court did not discuss how
automatic or nominate grounds for setting aside the substance of
decision-making, such as “fettering of discretion,” fit into the scheme of
things. Might the automatic or nominate grounds now be subsumed within the
rubric of reasonableness review? On this question, this Court recently had a
difference of opinion: Kane v. Canada (Attorney General), 2011 FCA 19.
But, in my view, this debate is of no moment where we are dealing with
decisions that are the product of “fettered discretions.” The result is the
same.
[24] Dunsmuir reaffirms a
longstanding, cardinal principle: “all exercises of public authority must find
their source in law” (paragraphs 27-28). Any decision that draws upon something
other than the law – for example a decision based solely upon an informal
policy statement without regard or cognizance of law, cannot fall within the
range of what is acceptable and defensible and, thus, be reasonable as that is
defined in Dunsmuir at paragraph 47. A decision that is the product of a
fettered discretion must per se be unreasonable.
[15]
The Respondent does not dispute this explanation
of the applicable standard. I also note that, in the recent decision in Gordon
v Canada, 2016 FC 643, at para 28, Justice Mactavish relied on Stemijon in
stating that the fettering of discretion is a reviewable error and should be
set aside regardless of the standard of review applied. I adopt this approach
for purposes of the following analysis.
B.
Did the Director fetter his discretion or
otherwise err by failing to recognize that he had the power to reconsider the
period of passport refusal?
[16]
Ms. Thelwell notes that the Federal Court of
Appeal has confirmed in Kurukkal v Canada (Minister of Citizenship and
Immigration), 2010 FCA 230 [Kurukkal], at paragraphs 2 to 4, that
the principle of functus officio (meaning that, once a decision is
taken, the decision-maker has no more authority on the matter) does not
strictly apply in non-adjudicative administrative proceedings and that, in
appropriate circumstances, discretion does exist to enable an administrative
decision-maker to reconsider his or her decision. In that case, the decision-maker
erred by failing to recognize the existence of discretion to reconsider, or
refuse to reconsider, a request for relief on humanitarian and compassionate
grounds under section 25 of the Immigration and Refugee Protection Act,
SC 2000, c. 27.
[17]
In the present case, Ms. Thelwell argues that
CIC possessed the discretion to reconsider its September 11, 2015 decision to
impose a five-year period for refusal of passport services, and failed to
recognize that discretion because of the impact of departmental policy. The
policy to which she refers is entitled “Investigation
and decision-making process in passport refusal and revocation files – Category
one” and, under the heading “Reasons”,
includes the following provision:
All the Passport Program decisions are final
and take effect the date the decision is rendered. Subjects who choose to
challenge a decision may do so by filing an application for judicial review
before the Federal Court of Canada within thirty days of the date of the
decision.
[18]
In advancing her position, that the impugned
decision in the present case is a product of fettered discretion based on this
policy, Ms. Thelwell relies on the decision’s reference to the finality of the
previous decision of September 11, 2015. In analysing this argument, it is
necessary to review the entirety of the substantive portion of the decision in
response to the reconsideration request. Following a paragraph on a procedural
issue which the Respondent correctly acknowledges is not relevant to the issues
in this application, the decision reads as follows:
Notwithstanding the foregoing we have taken
into consideration the information submitted on your behalf. You were advised
in our letter dated September 11, 2015 that there was sufficient information to
support a conclusion that you provided false or misleading information when you
submitted your application for a passport. This decision resulted in imposing a
period of refusal of passport services until June 17, 2020. You were advised
that Passport Program decisions are considered final and that you could
challenge the decision by filing an application for judicial review before the
Federal Court of Canada within thirty days of the date of the decision.
Therefore the decision taken by the Passport
Program stands. However, as you have already been advised you may, during the
period of refusal of passport services apply for a passport of limited validity
and containing geographical limitations based on urgent and compelling
considerations. The following link to the web site: http://www.cic.gc.cca/english/passport/securit/limited-validity.asp
may be of assistance to you.
[19]
The Respondent argues that the reconsideration
decision’s reference to finality represented simply a confirmation of the
statement in the September 11, 2015 decision that such decision was eligible
for judicial review under sections 18 and 18.1 of the Federal Courts Act,
R.S.C. 1985, c. F-7, which might not be the case if it were only an interim
decision. The Respondent also notes the reconsideration decision’s express
reference to having taken into consideration the information submitted on Ms. Thelwell’s
behalf. The Respondent submits this demonstrates that CIC did exercise its
discretion to reconsider the earlier decision and did not decline to do so based
on departmental policy.
[20]
The Federal Court of Appeal explained in Kurukkal,
at paragraphs 4 to 5, that an administrative decision-maker’s obligation, when
presented with a request for reconsideration, is to consider, taking into
account all relevant circumstances, whether to exercise the discretion to
reconsider. The officer is not obliged to conduct such reconsideration. Chief
Justice Crampton has also noted, in Trivedi v Canada (Minister of
Citizenship and Immigration), 2010 FC 422, at paragraph 30, that there is
no general duty to provide detailed reasons for deciding not to reconsider an
application. However, in the present case, CIC has provided brief reasons in
its November 30, 2015 letter, and the Court is required to assess whether those
reasons demonstrate that CIC considered whether to exercise its discretion to
reconsider, as argued by the Respondent, or erred in failing to recognize that
it had such discretion, as argued by Ms. Thelwell.
[21]
I find that CIC’s limited reasons support Ms. Thelwell’s
characterization of the decision. I should note that the Respondent is not
arguing that the decision represents a so-called “courtesy
letter” and therefore was not a decision amenable to judicial review.
Rather, the Respondent’s position is that CIC exercised its discretion and
decided to uphold the September 11, 2015 decision. However, while the Respondent
correctly notes that the decision refers to having taken into consideration the
information submitted on Ms. Thelwell’s behalf, the remainder of the decision
supports Ms. Thelwell’s position that CIC made the decision not to reconsider
based on an erroneous conclusion that it was without the discretion to do so
because of the impact of departmental policy.
[22]
The November 30, 2015 decision refers to the
contents of the September 11, 2015 decision, culminating in a reference to Ms. Thelwell
having been advised “…that passport Program decisions
are considered final and that you could challenge the decision by filing an
application for judicial review before the Federal Court of Canada within
thirty days of the date of the decision.” This language, and the
concepts captured therein, is quite close to the language in the departmental
policy. As such, I find that the policy influenced the inclusion of the
language about finality and the availability of judicial review in both the
September 11, 2015 and November 30, 2015 decisions. In itself, that is of
course not problematic.
[23]
However, quite significantly, the next paragraph
in the November 30, 2015 decision begins with the word “therefore”
and states that the result of the previous decision stands. The reference to
finality in the policy language itself may well have been intended to refer to
the availability of Federal Court judicial review resulting from a final decision.
However, in the November 30, 2015 decision, the use of the word “therefore” before the statement that the previous
decision stands suggests, as argued by Ms. Thelwell, that CIC declined to
reconsider its previous decision because it interpreted the reference to
finality in its policy as precluding such reconsideration.
[24]
I therefore find that CIC did improperly fetter
its discretion in reaching its decision on Ms. Thelwell’s reconsideration
request, thereby committing a reviewable error. In the alternative, even if the
decision was not a product of reliance on departmental policy, the wording of
the decision still demonstrates a causal link between CIC’s statement as to the
finality of its previous decision and its conclusion that such decision stands.
I consider this to demonstrate a failure to recognize the existence of the
discretion to reconsider and therefore a reviewable error of the sort
recognized in Kurukkal.
C.
Was it an error not to reconsider the
application in light of the new evidence?
[25]
Ms. Thelwell’s position is that CIC’s error in
fettering or failing to recognize its discretion is a dispositive error which
warrants the matter being remitted to a different decision-maker within CIC.
Ms. Thelwell has also provided extensive arguments to the effect that the
discretion to reconsider the previous decision should have been exercised in
her favour, focusing upon the reasons underlying the September 11, 2015
decision and her arguments, based on the Charter, as to why that
decision was unreasonable. The Respondent has also addressed those arguments in
considerable detail. However, as I have accepted Ms. Thelwell’s
characterization of CIC’s decision as having been based on the finality of the
previous decision, it follows that, while CIC referred in its November 30, 2015
letter to having taken into consideration the information submitted on Ms. Thelwell’s
behalf, neither that information nor the analysis in the September 11, 2015
decision influenced the November 30, 2015 decision. As the latter is the decision
under judicial review, and as it is not infused with the analysis of the
earlier decision, I do not consider that it would be appropriate for the Court
in this judicial review to reach a conclusion on the reasonableness of the
earlier decision.
V.
Conclusion
[26]
It is therefore my decision to grant this
application for judicial review and order the relief requested by Ms. Thelwell,
that the November 30, 2015 decision be set aside and remitted to a different
decision-maker.
[27]
Ms. Thelwell has requested in her Memorandum of
Fact and Law that this relief include a direction that the new decision-maker
must receive any new evidence and argument submitted by her within 30 days of
the Court’s Order and that the new decision-maker must make a decision within
60 days of receiving her updated materials. The Respondent does not disagree
that the Court has jurisdiction to impose these time frames but argues that
they are unnecessary in the present circumstances, as there is no evidence of a
delay by CIC in the handling of Ms. Thelwell’s application. My decision is to
include in my Order the time frames requested by Ms. Thelwell, not because of
any lack of confidence that CIC is prepared to proceed in a timely manner, but
rather to provide the parties with certainty as to the timing of the steps
resulting from the Court’s decision.
[28]
With respect to the opportunity for Ms. Thelwell
to provide updated materials, again the Respondent does not dispute the Court’s
jurisdiction to provide such an opportunity but argues that the reconsideration
request should be considered based on the record as it presently exists. My
conclusion is that it would be artificial to preclude the reconsideration being
conducted based on potentially updated information. My Order will therefore
provide for a brief period within which Ms. Thelwell may provide any new
evidence and argument to CIC.
VI.
Costs
[29]
Having prevailed in this application, Ms. Thelwell
is entitled to costs. She proposed a figure in the $2000 to $3000 range, with
which range the Respondent concurred. I award her costs of $2000.