Date: 20000511
Docket: T-483-98
BETWEEN:
MALIK SULTAN MAHMOOD
Applicant
and
HER MAJESTY THE QUEEN,
THE ATTORNEY GENERAL OF CANADA,
THE MINISTER OF EXTERNAL [FOREIGN] AFFAIRS AND
INTERNATIONAL TRADE and
THE PASSPORT OFFICE
Respondents
REASONS FOR JUDGMENT
DAWSON, J.
[1] On December 29, 1997, Jocelyn Francoeur, Director of Security, Policy and Entitlement at the Canadian Passport Office ("Passport Office"), acting under the authority of subsection 10(b ) of the Canadian Passport Order, SI/81-86 ("Order") revoked Mr. Mahmood"s Canadian passport. Mr. Mahmood, the applicant, seeks judicial review of that decision.
THE FACTS
[2] The applicant is a Canadian citizen. His Canadian passport (number VB480496) was issued to him on December 5, 1994.
[3] On July 28, 1997, at Changi International Airport in Singapore, the applicant obtained a boarding pass for Singapore Airline flight SQ18, destined for Vancouver. Investigation reports, put before the Court by the respondents by way of affidavit and identified as reports contained in the Passport security file, stated that the applicant obtained the boarding pass after checking-in for the flight using his Canadian passport.
[4] The applicant then gave the boarding pass to a friend, Mr. Mahmood Jadoon Mazhar. The applicant stated that he knew Mr. Mazhar to be suffering persecution at the hands of the Pakistani Government. In turn, Mr. Mazhar gave the applicant a boarding pass in Mr. Mazhar"s name for a flight to Bangkok leaving at about the same time and from the same restricted departure area as flight SQ18.
[5] Later that day, Mr. Mazhar presented the boarding pass for flight SQ18 in the applicant"s name at the Vancouver boarding gate area at Changi International Airport. When the name on the boarding pass was noted not to match the name on Mr. Mazhar"s passport, Mr. Mazhar was questioned by authorities. Mr. Mazhar is said first to have stated that he thought he was boarding a flight for Bangkok. Apparently, a police officer then went to the boarding gate of the flight destined for Bangkok and apprehended the applicant.
[6] The applicant and Mr. Mazhar were detained and questioned separately. They both admitted to the boarding pass swap.
[7] The applicant"s Canadian passport was seized by officials in Singapore and remitted to a Canadian Immigration Control Officer in Singapore.
[8] The applicant and Mr. Mazhar were arrested. The applicant was charged, under Singapore law, with an offence.
[9] Correspondence from the Singapore police, attached to the affidavit filed in opposition to the application, states that on July 28, 1997, Mr. Mahmood was charged with, and pleaded guilty to, the offence of "attempted cheating by personation with common intention involving one Canadian passenger holder of passport number VB480946 namely Malik Sultan Mahmood at gate F58, transit lounge, Changi Airport Terminal II on 28 July 97".
[10] The Singapore police advised in such correspondence that Mr. Mahmood pleaded guilty to the offence, was convicted, and sentenced to two months imprisonment.
[11] After Mr. Mahmood"s release on September 9, 1997, he apparently travelled to Pakistan using his Pakistani passport.
[12] In Pakistan, the applicant approached the Canadian High Commission in Islamabad and applied for a Canadian passport to return to Canada. The applicant completed Passport Office form PPT-203 "Statutory Declaration Concerning a Lost, Stolen, Inaccessible or Stolen Canadian Passport or Travel Document". On that form, dated September 16, 1997, the applicant wrote, referring to the Singapore police, "[w]hen they see two passport with me they say this is something wrong. Then they keep my Canadian passport".
[13] During questioning by Canadian High Commission officials, the applicant said that his Canadian passport had been confiscated by Immigration authorities on a recent trip to Singapore when they became suspicious that he was carrying two valid passports, one Canadian and one Pakistani. He did not mention the events of July 28, 1997, leading to his arrest and conviction in Singapore. On September 22, 1997, an emergency passport, valid until September 30, 1997, was issued to the applicant to enable him to return to Canada. The applicant then returned to Canada.
[14] On September 29, 1997, Mr. Neville Wells, Manager of Security and Enforcement at the Passport Office, sent a letter to the applicant giving him formal notice that the Passport Office proposed to revoke Canadian passport VB480946 until at least July 2002. The letter set out the information which the Passport Office had received (essentially the facts noted are above). The letter also stated that the Passport Office intended to invoke subsection 10(b) of the Order. Subsection 10(b) states as follows:
| 10. The Passport Office may revoke the passport of a person on any ground on which it may refuse to issue a passport to that person if he were an applicant and may revoke the passport of a person who ... (b) uses the passport to assist him in committing an indictable offence in Canada or any offence in a foreign country or state that would constitute an indictable offence if committed in Canada. |
10. Le Bureau des passeports peut révoquer le passeport d'une personne pour toute raison qui justifierait le refus de délivrer un passeport à cette personne si elle présentait une demande, et peut révoquer le passeport d'une personne qui ... b) utilise le passeport pour commettre un acte criminel au Canada, ou pour commettre, dans un pays ou État étranger, une infraction qui constituerait un acte criminel si elle était commise au Canada. |
| [15] The applicant was given 30 days from the date of receipt of the September 29, 1997 letter to file an objection to the proposal and to provide information which might assist in arriving at a decision. |
| [16] After requesting and receiving an extension of time for reply, submissions were made on the applicant"s behalf by his counsel by a letter dated November 19, 1997. |
| [17] By a letter dated December 29, 1997, Jocelyn Francoeur advised the applicant that the Passport Office had decided to invoke subsection 10(b) of the Order and to revoke the applicant"s passport. |
| [18] In a letter also dated December 29, 1997, the applicant conveyed to the Passport Office a supplemental answer to the response submitted on November 19, 1997 by his counsel. On January 26, 1997, Jocelyn Francoeur acknowledged receipt of the applicant"s letter and indicated that the Passport Office believed that the relevant points raised in the correspondence had been dealt with in the Passport Office"s letters of September 26, 1997 and December 29, 1997. Mr. Francoeur advised that the decision to revoke stood. |
| ISSUES |
| [19] Notwithstanding the number of issues raised in the Notice of Application counsel for the applicant advised at the hearing that only two issues were being pursued: |
| 1) that the decision was made without evidence, and in disregard of the evidence and in the total absence of reasons; and, |
| 2) that the decision was ultra vires as the applicant never misused his passport. |
ANALYSIS
(i) Was the decision made without evidence, in disregard of the evidence and without reasons?
[1] In oral argument, counsel for the applicant stated that in his response to the Passport Office"s letter of September 29, 1997, he made two substantive points. The first was that Mr. Mahmood"s actions were a humanitarian gesture to a person who he "knew" to be suffering persecution at the hands of his government. The second, as stated in counsel"s letter, was that Mr. Mahmood "exercised his conscience and, complying with his domestic obligations under s. 7.1 of the Criminal Code of Canada, to not engage in acts of [sic] omissions of "crimes against humanity" which include "persecution", gave a friend of his whom he knew to be suffering persecution at the hands of his government, his boarding pass due to the extremity of the situation, the persecution and request for assistance".
[2] Counsel"s letter also complained forcefully and at length about the conduct of Canadian officials in Singapore towards the applicant, asserted that the Order was unconstitutional and in violation of section 6 of the Canadian Charter of Rights and Freedoms and complained that in Singapore the applicant had been summarily subjected to a "kangaroo proceeding".
[3] In reply to counsel"s submissions, Mr. Francoeur stated in the letter dated December 29, 1997, that:
| You have suggested that the denial of passport services to your client infringes upon his rights under the Canadian Charter of Rights and Freedoms. We do not agree with that statement and are of the opinion that the authority of the Passport Office, under sections 9(b) and 10 of the Canadian Passport Order, SI/81-86 (the Order) is constitutionally sound under the Charter. We are also of the view that the action of your client does not fall within the ambit of the provisions of the Criminal Code dealing with crimes against humanity. As per your comments in respect of the investigative and judicial processes followed by Singapore authorities, we trust that the government of Singapore is successful in administering a fair process to all Canadians entering their territory. With respect to the intervention of the officials of the Canadian mission, we do believe that they acted within the scope of their duties. |
[4] Applicant"s counsel states that in so responding there was nothing to indicate that Mr. Francoeur referred to the evidence or put his mind to the totality of the evidence.
[5] I accept, however, the submission of counsel for the respondents that the thrust of the applicant"s response to the concerns of the Passport Office was that the applicant"s actions were, in effect, required by his conscience and section 7.1 of the Criminal Code .
[6] Mr. Francoeur"s response noted that: "[w]e are also of the view that the action of your client does not fall within the ambit of the provisions of the Criminal Code dealing with crimes against humanity". Given that the applicant"s humanitarian concerns were largely subsumed by arguments as to the significance of section 7.1 of the Criminal Code , I cannot conclude that Mr. Francoeur failed to consider the submission made on behalf of the applicant.
[7] As to whether there was evidence to support the decision to revoke the passport, the affidavit sworn in opposition to the application for judicial review states that Mr. Francoeur had before him the applicant"s security file, the submission of Mr. Mahmood"s counsel and the recommendation by the Manager of Security and Enforcement concerning revocation.
[8] The security file included a report from a Canadian Immigration Control Officer and a report from an investigator with the Enforcement and Security Section. Those reports detailed the boarding pass switch and that the applicant used his Canadian passport to check-in with the airline.
[9] The applicant"s security file also contained the correspondence from the Singapore police confirming the applicant"s conviction.
[10] The submissions made by the applicant"s counsel (and later by the applicant) to the Passport Office acknowledged the exchange of boarding passes.
[11] Therefore, in my view there was sufficient evidence before Mr. Francoeur to support his decision.
[12] As to the complaint that proper reasons were not given, counsel for the respondents argued that it was far from certain that there was any requirement for formal reasons to be given.
[13] Counsel pointed to the fact that the revocation of the applicant"s passport was for a limited period of time and that even while revoked, the applicant was entitled to seek passport services on compassionate and humanitarian grounds.
[14] It is not necessary for me to decide if formal reasons were required, as I am satisfied that any requirement for the giving of reasons was met.
[15] In Baker v. Canada, [1999] 2 S.C.R. 817, the Supreme Court noted that flexibility is required when considering the sufficiency of reasons and that courts are to evaluate the requirements of the duty of fairness while recognizing the daily realities of administrative agencies. Procedural fairness requires open decision making.
[16] In my view, the December 29, 1997 letter, when read together with the letter of September 29, 1997, adequately and fairly advised the applicant of the concerns of the Passport Office and the basis on which, after receiving the applicant"s submissions, it was decided to revoke the applicant"s passport pursuant to subsection 10(b ) of the Order.
(ii) Was the decision ultra vires because the applicant never misused his passport?
[17] Pursuant to subsection 10(b) of the Order, a passport may be revoked if a person uses the passport to assist the person to commit any offence in a foreign country that would constitute an indictable offence if committed in Canada.
[18] In its initial letter of September 29, 1997, the Passport Office noted this, and specifically referenced section 94.1 of the Immigration Act and section 403 of the Criminal Code. These two sections provide as follows:
| 94.1 Every person who knowingly organizes, induces, aids or abets or attempts to organize, induce, aid or abet the coming into Canada of a person who is not in possession of a valid and subsisting visa, passport or travel document where one is required by this Act or the regulations is guilty of an offence and liable (a) on conviction on indictment, to a fine not exceeding one hundred thousand dollars or to imprisonment for a term not exceeding five years, or to both; or (b) on summary conviction, to a fine not exceeding ten thousand dollars or to imprisonment for a term not exceeding one year, or to both. ... 403. Every one who fraudulently personates any person, living or dead, (a) with intent to gain advantage for himself or another person. |
| 94.1 Quiconque incite, aide ou encourage ou tente d'inciter, d'aider ou d'encourager une personne à entrer au Canada, ou organise ou tente d'organiser l'entrée d'une telle personne au Canada, tout en sachant qu'elle n'est pas munie d'un visa, d'un passeport ou d'un document de voyage en cours de validité requis en vertu de la présente loi ou de ses règlements, commet une infraction et encourt, sur déclaration de culpabilité_: a) par mise en accusation, une amende maximale de cent mille dollars et un emprisonnement maximal de cinq ans, ou l'une de ces peines; b) par procédure sommaire, une amende maximale de dix mille dollars et un emprisonnement maximal de un an, ou l'une de ces peines. ... 403. Est coupable soit d'un acte criminel et passible d'un emprisonnement maximal de dix ans, soit d'une infraction punissable sur déclaration de culpabilité par procédure sommaire quiconque, frauduleusement, se fait passer pour une personne, vivante ou morte_: a) soit avec l'intention d'obtenir un avantage pour lui-même ou pour une autre personne; |
| [19] The record before Mr. Francoeur established that the applicant checked-in with the airline using his Canadian passport, and that he gave Mr. Mazhar his boarding pass he received when he checked-in. This was the act which led to the applicant"s arrest and conviction in Singapore. Applicant"s counsel advised that this was done so that Mr. Mazhar could claim admission to Canada as a Convention refugee. |
| [20] Before Mr. Francoeur, there was no denial of the conviction for an offence in Singapore. Indeed, applicant"s counsel, in his submissions to the Passport Office, referenced the applicant"s conviction of an offence in Singapore, albeit referring to the legal proceedings a "kangaroo proceeding". As well, correspondence was sent by the Singapore police stating the offence of which the applicant was convicted after entering a plea of guilty. |
| [21] I accept that the use of the passport to assist in the commission of that offence in Singapore was capable at law of invoking the operation of subsection 10(b) of the Order because the conduct characterized as "cheating by personation with intent" in Singapore would be capable of constituting conduct prescribed by both section 94.1 of the Immigration Act and section 403 of the Criminal Code. In respect of the applicability of section 403 of the Criminal Code, I have considered the decision of Regina v. Hetsberger (1980), 51 C.C.C. (2d) 257 (Ont. C.A.). |
| [22] Thus, I do not find the decision to be ultra vires subsection 10(b) of the Order. |
| CONCLUSION |
| [23] For the reasons above, I conclude that Mr. Francoeur committed no reviewable error. |
| [24] Consequently, the application for judicial review is dismissed. |
| "Eleanor R. Dawson" |
| _______________________________________ |
| Judge |
| OTTAWA, Ontario |
| May 11, 2000 |