Docket: T-1129-16
Citation:
2017 FC 235
[ENGLISH TRANSLATION]
Ottawa, Ontario, February 24, 2017
PRESENT: The Honourable Mr. Justice Martineau
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BETWEEN:
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JOURJOS HADDAD
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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
[1]
The applicant became a permanent resident of
Canada in 2002 and obtained Canadian citizenship in 2006. He also holds Syrian
citizenship. He is married and has two children. In 2012, he left Canada to
move to the Netherlands, then to the United Arab Emirates [Emirates], where he
currently lives with his family.
[2]
In April 2016, the applicant applied to renew
his Canadian passport through the Consulate General of Canada in Dubai. On
April 15, 2016, a new passport was issued, but because of an administrative
error, it was delivered to the Canadian Embassy in Oslo. In trying to correct
that administrative error, an officer with the “Safekeeping” Section of the
Passport Program of the Security Branch of Refugees, Immigration and
Citizenship Canada [IRCC] conducted a check of the applicant’s record with the
Canadian Police Information Centre (CPIC). It was discovered that there were
criminal charges against the applicant and that a provincial arrest warrant had
been issued on July 14, 2014 while the applicant was living abroad.
[3]
In this case, the applicant is accused, on
various dates while in or out of Canada, of having made misrepresentations as
described in paragraphs 127(a) and 128(a) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA]; of having illegally used
a certificate and committed an offence as set out in subsection 29(3) of the Citizenship
Act, RSC 1985, c C-29; and/or of having made a false statement in relation
to a passport contrary to paragraphs 57(2)(a) and 380(1)(a) of
the Criminal Code, RSC 1985, c C-46 [Criminal Code] [collectively
referred to as the charges].
[4]
More specifically, the applicant is accused of
having committed the following acts, reproduced from Appendix A attached of the
arrest warrant issued in Quebec by a justice of the peace on police
information:
[translation]
In Montréal, District of Montréal, and in
the United Arab Emirates
Between March 8, 2002 and December 13, 2006,
knowingly directly or indirectly misrepresented or withheld material facts
relating to a relevant matter that induces or could induce an error in the
administration of the Immigration and Refugee Protection Act, namely:
the place of permanent residence, contrary to paragraph 127(a) of the Act,
thus committing an indictable offence under paragraph 128(a) of the
Act.
On approximately December 14, 2006, used,
acted on or caused or attempted to cause any person to use or act on a
certificate, knowing it to have been unlawfully issued, provided or altered or
to have been counterfeited, contrary to paragraph 29(3)(c) of the Citizenship
Act, R.S.C., 1985, c. C-29, thus committing an indictable offence under
subsection 29(3) of the Citizenship Act.
On approximately December 14, 2006, while in
or out of Canada, for the purpose of procuring a passport for himself or any
other person or for the purpose of procuring any material alteration or
addition to any such passport, made a written or an oral statement that he knew
was false or misleading, contrary to subsection 57(2) of the Criminal Code,
thus committing an indictable offence under paragraph 57(2)(a) of the Code.
On approximately July 10, 2007, used, acted
on or caused or attempted to cause any person to use or act on a certificate,
knowing it to have been unlawfully issued, provided or altered or to have been
counterfeited, contrary to paragraph 29(3)(c) of the Citizenship Act,
R.S.C., 1985, c. C-29, thus committing an indictable offence under subsection
29(3) of Citizenship Act.
On approximately February 12, 2008, used,
acted on or caused or attempted to cause any person to use or act on a
certificate, knowing it to have been unlawfully issued, provided or altered or
to have been counterfeited, contrary to paragraph 29(3)(c) of the Citizenship
Act, R.S.C., 1985, c. C‑29, thus committing an indictable offence
under subsection 29(3) of the Citizenship Act.
On about February 12, 2008, while in or out
of Canada, for the purpose of procuring a passport for himself or any other
person or for the purpose of procuring any material alteration or addition to
any such passport, made a written or an oral statement that they knew was false
or misleading, contrary to subsection 57(2) of the Criminal Code, thus
committing an indictable offence under paragraph 57(2)(a) of the Code.
On approximately November 15, 2010, used,
acted on or caused or attempted to cause any person to use or act on a
certificate, knowing it to have been unlawfully issued, provided or altered or
to have been counterfeited, contrary to paragraph 29(3)(c) of the Citizenship
Act, R.S.C., 1985, c. C-29, thus committing an indictable offence under
subsection 29(3) of Citizenship Act.
On approximately November 15, 2010, while in
or out of Canada, for the purpose of procuring a passport for himself or any
other person or for the purpose of procuring any material alteration or
addition to any such passport, made a written or an oral statement that he knew
was false or misleading, contrary to subsection 57(2) of the Criminal Code,
thus committing an indictable offence under paragraph 57(2)(a) of the Code.
On approximately August 19, 2011, while in
or out of Canada, for the purpose of procuring a passport for himself or any
other person or for the purpose of procuring any material alteration or
addition to any such passport, made a written or an oral statement that he knew
was false or misleading, contrary to subsection 57(2) of the Criminal Code,
thus committing an indictable offence under paragraph 57(2)(a) of the Code.
Between August 13, 2007 and April 2, 2007,
by deceit, falsehood or other fraudulent means, defrauds the public or any
person, whether ascertained or not, of any property, money or valuable security
or any service in excess of five thousand dollars, thus committing an
indictable offence under paragraph 380(1)(a) of the Criminal Code.
[5]
On May 27, 2016, following the communication of
this information by the RCMP, an IRCC investigator [the investigator] sent a
letter to the applicant, informing him of the substance of the charges against
him, and informing him that, without explanations that would allow for
reconsideration of the situation, issuance of his new passport would be refused
under the powers granted the Minister of Citizenship and Immigration [the
Minister] under paragraph 9(1)(b) of the Canadian Passport Order,
SI/81-86 [the Order] and that his current passport would be revoked on the
same grounds, in accordance with subsection 10(1) of the Order.
[6]
The provisions in question read as follows:
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9(1) 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
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9(1) 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 :
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[…]
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[…]
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(b) stands
charged in Canada with the commission of an indictable offence;
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b) est accusé au
Canada d’un acte criminel;
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10 (1) Without
limiting the generality of subsections 4(3) and (4) and for the greater
certainty, the Minister may revoke a passport on the same grounds on which
he or she may refuse to issue a passport.
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10 (1) Sans que soit limitée la généralité des paragraphes 4(3) et
(4), il est entendu que le ministre peut révoquer un passeport pour les
mêmes motifs que ceux qu’il invoque pour refuser d’en délivrer un.
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[Emphasis added]
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[Nos
soulignements]
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[7]
On June 8, 2016, in a letter from his counsel,
the applicant submitted, among other things, that he was not at all aware of
the criminal charges against him. On June 10, 2016, the applicant was advised
by the investigator that the information received from his counsel did not
allow for reconsideration of the ministerial decision to revoke the passport,
which led to this application for judicial review. That revocation took effect
on June 25, 2016.
[8]
Today, the applicant is asking the Court to
decide the following three issues:
1.
Was there a lack of procedural fairness?
2.
Was there an error in the interpretation or application
of paragraph 9(1)(b) of the Order?
3.
Was there a failure to consider relevant
mitigating factors?
[9]
The standard of reasonableness applies to the
examination of the second and third issues above, which are related to the
merits of the decision under review (Xie v Canada (Citizenship and
Immigration), 2016 FC 434, [2016] FCJ No. 440, at para 6]; Gomravi
v Canada (Attorney General), 2015 FC 431, [2015] FCJ No. 519, at para
24 [Gomravi]). The standard applicable to the first issue, related to
procedural fairness, is that of correctness (Kamel v Canada (Attorney
General) (FC), 2008 FC 338, [2009] 1 FCR 59, at para 62 and 72
[Kamel]; Gomravi, at para 23; Lipskaia v Canada
(Attorney General), 2016 FC 526, [2016] FCJ No. 489, at para 14 [Lipskaia]).
[10]
As a preliminary point, the respondent notes
that several of the applicant’s exhibits in the Court record were never
submitted to the investigator (Applicant Record, Exhibits P‑3.1 to
P-3.3, P-4 à P-10.2, P-13, P-16, P-17, P-18, P-18.1 and P-19, investigator’s
affidavit, at para 17). In effect, several exhibits were cited by the
applicant to challenge the validity and merits of his criminal charges. As a
general rule, the record submitted to the Court as part of an application for
judicial review is limited to evidence that was available to the administrative
decision-maker (Association of Universities and Colleges of Canada v Canadian
Copyright Licensing Agency (Access Copyright), 2012 FCA 22, [2012] FCJ No.
93, at para 19 [Association of Universities and Colleges]; Kharlan v
Canada (Citizenship and Immigration), 2016 FC 678, [2016] FCJ No. 687,
at para 17 [Kharlan]). This Court nonetheless considered the additional
evidence cited by the applicant to determine whether there was a lack of
procedural fairness and, if so, its impact on the results (Association of
Universities and Colleges, at para 20; Kharlan, at para 19). In this
case, not all the additional evidence is relevant, considering that the Federal
Court is not a reviewing court for decisions by a justice of the piece or
actions taken by the police.
Procedural
fairness
[11]
The applicant claims that the investigator’s
refusal to communicate the arrest warrant infringes on his right to a full
answer and defence. He alleges that the investigator invited him to submit an
access to information request to the police. Such conduct brings the
administration of justice into disrepute, particularly as the evidence on
certified record clearly shows that the investigator had the mandate in his
possession.
[12]
The applicant claims to be relying on extensive
jurisprudence that sets out the Minister’s duty regarding procedural fairness
when using his discretion to revoke a passport under sections 9 and 10 of the
Order. Having reviewed that jurisprudence, it must be noted that the applicant
misunderstands the scope of the duty of fairness, which is variable in its
content, depending on the circumstances.
[13]
In Abdi v Canada (Attorney General), 2012
FC 642, [2012] FCJ No. 945 [Abdi], the Court held that it was not
essential that the entire file available to the investigator be provided to the
applicant. To the contrary, the Minister or the Minister’s must instead ensure
that all material facts that the Section may have discovered in its
investigation is disclosed to the parties affected (Abdi, at paras
21-22; Lipskaia, at paras 19 and 20). However, the Court has noted in
other decisions that documents containing material elements must be disclosed
to the parties affected, particularly when the minister or the investigator
acting on the Minister’s behalf relies on those documents.
[14]
In Kamel, the Minister had decided to
suspend the delivery of passport services for Mr. Kamel for an indefinite
period after finding that he represented a security risk. That decision was
based primarily on a report from the Canadian Security Intelligence Service,
which was not disclosed to Mr. Kamel. The Court thus found that procedural
fairness was not respected because Mr. Kamel was not informed of the substance
of the report. Nonetheless, for procedural fairness to be respected, Noël J.
clearly indicated that it is sufficient “if the
investigation includes disclosure to the individual affected of the facts
alleged against him and the information collected in the course of the
investigation and gives the applicant an opportunity to respond to it fully and
informs him of the investigator’s objectives; as well, the decision maker must
have all of the facts in order to make an informed decision” (Kamel,
at para 72).
[15]
Another example is Gomravi, in which the
Court indicated that the Minister’s duty regarding procedural fairness requires
that all material facts discovered in the investigation, whether inculpatory or
exculpatory, be disclosed to the parties affected (Gomravi, at para 32).
In that case, the Court allowed the application for judicial review because the
Minister had failed to disclose exculpatory evidence that cast doubt on the existence
of the imposter, which was a fundamental element of the evidence against the applicant
(Gomravi, at paras 33-34).
[16]
On the other hand, that obligation for the
Minister to disclose is not automatic or unlimited, but depends on the
particular facts of each case. For example, in Fontaine v Canada, 2016
FC 376, [2016] FCJ No. 343, at para 14, the Court noted that the threshold for
procedural fairness in the revocation of a passport is not high. To the extent
that the applicant actually received a letter informing him of the substance of
the charges against him and that he had every opportunity to respond to it, the
Court found that there was no breach of procedural fairness.
[17]
In the case at hand, the Court finds that there
was no breach of procedural fairness. At this stage, it is not a matter of
whether the applicant was deprived of his right to a full answer and defence
simply because he did not have access to the arrest warrant or the full
investigator’s file, but of determining whether the investigator disclosed all
material facts to him, i.e. the nature and substance of the charges against
him. The letters dated May 27 and June 10, 2016 specifically mention the
criminal charges against him.
[18]
Moreover, the investigator respected every
procedural requirement set out in section 11.3 of the Order, namely:
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11.3(1) If a
passport has been cancelled under section 11.1, the person to whom the
passport was issued may, within 30 days after the day on which the person
becomes aware that the passport is cancelled, apply to the Minister or the
Minister of Public Safety and Emergency Preparedness, as the case may be, in
writing to have the cancellation reconsidered.
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11.3(1) La
personne qui voit le passeport qui lui a été délivré annulé en vertu de l’article
11.1 peut, dans les trente jours suivant la date à laquelle elle a pris
connaissance de l’annulation, demander par écrit au ministre ou au ministre
de la Sécurité publique et de la Protection civile, selon le cas, de
reconsidérer l’annulation.
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(2) The Minister
or the Minister of Public Safety and Emergency Preparedness, as the case may
be, shall give the person a reasonable opportunity to make representations.
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(2) Le ministre
ou le ministre de la Sécurité publique et de la Protection civile, selon le
cas, accorde au demandeur la possibilité de présenter des observations.
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(3) On receipt of
the representations, the Minister or the Minister of Public Safety and
Emergency Preparedness, as the case may be, shall decide if there are still
reasonable grounds to cancel the passport.
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(3) À la
réception des observations, le ministre ou le ministre de la Sécurité
publique et de la Protection civile, selon le cas, décide s’il existe encore
des motifs raisonnables d’annuler le passeport.
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(4) The Minister
or the Minister of Public Safety and Emergency Preparedness, as the case may
be, shall give notice to the person without delay of the decision made in
respect of the application.
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(4) Le ministre
ou le ministre de la Sécurité publique et de la Protection civile, selon le
cas, donne sans délai au demandeur un avis de la décision qu’il a rendue
relativement à la demande.
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[19]
Although the procedure described in the Order
was respected, the applicant claims that the investigator nonetheless violated
his right to a full answer and defence. Citing Dias v Canada (Attorney
General), 2014 FC 64, [2014] FCJ No. 60 (QL) [Dias], the applicant
argues that the investigator exceeded his jurisdiction in deciding on the value
and merits of the charges against him. The applicant also argues that the
arrest warrant issued against him by the Province of Quebec infringed on his
right of free movement as a Canadian citizen.
[20]
These alternative arguments must also be
dismissed in that they raise no issues of procedural fairness. Moreover, the
jurisprudence on which the applicant is relying does not apply here. Even if we
assume for a moment, for the sake of argument, that there is in fact a breach
of procedural fairness, this Court, in exercising its discretion regarding
judicial reviews, finds that it would serve no useful purpose to set aside the
ministerial decision and to refer the matter for reconsideration by another
investigator (Lou v Canada (Minister of Citizenship and Immigration),
[2000] FCJ No. 862, at paras 13 and 14; Nagulathas v Canada (Minister of
Citizenship and Immigration), 2012 FC 1159, [2012] FCJ No. 1317, at para
24; Pavicevic v Canada (Attorney General), 2013 FC 997, [2013] FCJ No.
1084, at paras 55 and 56; Mobil Oil Canada Ltd v Canada-Newfoundland
Offshore Petroleum Board, 1994 CanLII 114 (SCC), [1994] 1 SCR 202).
[21]
In the case at hand, the Minister (or his
delegate) did not base the decision to revoke the passport on the fact that the
applicant was actually guilty of the alleged offences, but solely on the fact
that he was currently facing criminal charges. In other words, the alleged
breach of procedural fairness, i.e. the fact that the warrant was not disclosed
in advance to the applicant, can have no impact on the outcome. Indeed, the
applicant is still accused of the various indictable offences. In short, the
ministerial decision was not have been different in the case under review.
[22]
Moreover, the fact that the applicant wishes to
return to Canada to defend himself against the charges is not a determining
factor in this case. At the risk of repeating myself, the key element is that
the applicant is currently facing criminal charges. Under paragraph 9(1)(b)
and subsection 10(1) of the Order, that is sufficient grounds to revoke his
passport. Moreover, there is nothing to prevent the applicant – despite the
revocation of his passport – from asking that a temporary passport or emergency
document be issued. As noted by the investigator in his two letters, that
solution would allow the applicant to return to Canada and resolve his
situation, particularly as he claims to own a condominium in Montréal since
2007 and has apparently retained the services of a lawyer to defend him against
the criminal charges.
Interpretation
and application of paragraph 9(1)(b) of the Order
[23]
The applicant claims that paragraph 9(1)(b)
of the Order only applies when the individual is convicted of the offence, not
when he is only charged. He states that the word “guilty”
– not “accused” – is used in subsections
57(2) and 380(1) of the Criminal Code, in subsection 29(3) of the Citizenship
Act and in paragraph 128(a) of the IRPA. This Court does not agree
with that interpretation, which is contrary to the very text of paragraph 9(1)(b)
of the Order and the purpose of that provision. Moreover, paragraph 9(1)(e)
of the Order – which specifically refers to the refusal to issue a passport for
a person convicted under section 57 of the Criminal Code – does not
exclude the application of paragraph 9(1)(b) of the Order.
[24]
The Minister clearly has the discretion to
suspend a passport in all cases referred to in section 9 and, therefore, to
revoke a passport under section 10 to maintain the integrity of the system for
issuing passports. The jurisprudence cited by the applicant is not truly useful
here.
[25]
For example, in Siska v Passport Canada,
2014 CF 298 [Siska], the Court held that, in accordance with the text of
paragraph 10(2)(b) of the Order, the Minister may revoke a passport if
an indictable offence is committed in Canada or if a similar offence is
committed in another country. Although there seems to be uncertainty in
jurisprudence regarding the interpretation of paragraph 10(2)(b), the
Court found that, for the purposes of this specific provision, the applicant
had to be convicted (Siska, at para 18). The same type of reasoning is
found in Allen v Canada, 2015 FC 213, at para 23 and 33. As well,
paragraphs 9(1)(b) and 10(2)(b) of the Order must not be confused
(Siska, at para 16, referring to Vithiyananthan v Canada (Attorney
General), 2000 CanLII 17124 (FC), [2000] FCJ No. 409, at para 11).
[26]
In Canada (Attorney General) v. Dias,
2014 FCA 195, [2014] FCJ No. 958, it was again a matter of interpreting
paragraph 10(2)(b) of the Order, which allows the Minister to “may revoke the passport of a person who [...] uses the
passport 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”. To meet the requirements of subsection 10(2)(b)
of the Order, the Minister must prove that all the constituent elements of the
offence are present, and that it is unreasonable for the Minister to act on
reasonable grounds or simple suspicions. However, the case at hand is quite
different, in which the investigator must simply be satisfied that a charge has
been laid against the applicant under paragraph 9(1)(b) of the Order. As
that evidence is in the file, the investigator does not need to analyze the
merits of the charges against the applicant.
[27]
The Court finds that no reviewable error in law
was committed by the decision-maker.
Mitigating
factors
[28]
Even though the Court concludes that no error in
law was committed in this case, the applicant argues alternatively that the
investigator erred in the assessment of “mitigating
factors”, making the ministerial decision otherwise unreasonable. As
well, the ministerial decision violates 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, as the revocation of the
applicant’s passport deprived him of his right to life and security and that of
his family (section 7), and his right as a Canadian Citizen to enter and leave
Canada (article 6).
[29]
The applicant’s claims are not justified. On the
one hand, there is nothing in the Order or in jurisprudence that requires that
the investigator consider compassionate considerations or mitigating factors in
the application of paragraph 9(1)(b) of the Order. On the other hand,
according to jurisprudence, in the event of revocation, the applicants can
still apply for a temporary passport based on urgent and compelling
compassionate considerations (Mikhail v Canada (Attorney General), 2013
FC 724, [2013] FCJ No. 788, at para 1). It must be noted, in passing, that the
concept of “mitigating factor” or “compassionate consideration” was examined by this
Court in De Hoedt c Canada (Minister of Citizenship and Immigration),
2014 FC 829, [2014] FCJ No. 988 [De Hoedt]. In effect, the
applicant alleged that he accompanied his sister so she could seek refuge in
Canada and that it was a laudable goal. Noting that section 117 of the IRPA is
directed to Parliament’s historical concern with border control by preventing
individuals from arranging the unlawful entry of undocumented migrants into
Canada, the Court found that the compassionate considerations cited by the
applicant had no importance in the decision to revoke the passport (De Hoedt,
at para 29 and 35).
[30]
Moreover, in the case at hand, the applicant
recognizes that all the offences of which he is accused are indictable offences
for which he can be prosecuted by indictment under paragraph 128a) of the IRPA,
subsection 28(3) of the Citizenship Act, and subsection 57(2) and
paragraph 80(1)(a) of the Criminal Code. In the case at hand, the
IRCC investigator was not required to ask whether or not the applicant would
have returned to Canada to defend himself had he known about the charges
against him. Moreover, the applicant did not demonstrate to this Court that the
late discovery of the charges that had been outstanding since the summer of
2014 caused him prejudice in terms of the evidence and arguments that he could
have made in the spring of 2016 to prevent the minister or his delegate from
revoking his passport. There are therefore no mitigating factors that could
taint the ministerial decision. As well, the compassionate considerations
raised by the applicant are not relevant in that it is possible for him to
apply for a temporary passport to come settle the criminal charges against him
in Canada.
Conclusion
[31]
The revocation of the applicant’s passport falls
within the range of possible, acceptable outcomes in light of the applicable
law and the evidence on record (Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190, and Canada (Citizenship and Immigration) v Khosa, 2009
SCC 12, [2009] 1 S.C.R. 339). The letters dated May 27 and June 10, 2016 allow the
applicant to understand reasoning of the decision-maker, who relied on the
evidence in the file. There was no breach of procedural fairness in this case.
The investigator obtained the relevant information from a reliable source – in
this case the RCMP – and then informed the applicant of the nature of the
criminal charges against him. Clearly, the revocation of a passport can have
serious consequences on the individual, such that the Minister (or his
delegate) must ensure that charges actually have been laid against the holder
of the passport and that it is in fact the same person. In the case at hand,
these conditions have been met, meaning that the decision under review is not
tainted by any reviewable error that could be a determining factor in the
outcome of the case.
[32]
For these reasons, the Court dismisses this
application for judicial review. The respondent has not claimed costs.
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