[2000] 3 F.C. 576
T-491-99
Wignarajah Vithiyananthan (Applicant)
v.
The Attorney General of Canada (Respondent)
Indexed as: Vithiyananthan v. Canada (Attorney General) (T.D.)
Trial Division, Simpson J.—Toronto, March 3; Vancouver, March 29, 2000.
Citizenship and Immigration — Status in Canada — Citizens — Application for judicial review of Passport Office decision revoking applicant’s Canadian passport pursuant to Canadian Passport Order (CPO), s. 10(b) for having used passport to assist cousin to enter Canada illegally, contrary to CPO, s. 94(2) (hybrid offence punishable by indictment or by way of summary conviction) — CPO, s. 10(b) providing for revocation of passport where passport used to assist in commission of indictable offence — Case law establishing hybrid offence indictable offence even when, as herein, Crown electing proceed by way of summary conviction — Director erred in exercising discretion as mistakenly believed applicant had given cousin opportunity to “jump ahead” of other refugee claimants — In fact, no queue for refugee claimants.
The applicant was seeking judicial review of a Passport Office discretionary decision revoking his Canadian passport pursuant to paragraph 10(b) of the Canadian Passport Order (CPO) for having used his passport to assist his cousin from Sri Lanka to enter illegally into Canada, contrary to paragraph 94(1)(m) of the CPO. The applicant plead guilty to the charge under paragraph 94(1)(m), a hybrid offence which the Crown agreed to prosecute by way of summary conviction instead of by indictment, and a fine of $500 was imposed.
The applicant argued that the Director of the Passport Office did not have jurisdiction to revoke his passport because, while paragraph 10(b) of the CPO provides that the Passport Office may revoke the passport of a person who uses it to assist him in committing an indictable offence, the applicant had been convicted by way of summary conviction.
The applicant also argued that the Director erred in his exercise of discretion because he mistakenly believed that when the applicant brought his cousin to Canada as a refugee claimant, he gave her the opportunity to improperly claim refugee status ahead of other prospective refugee claimants who had been waiting in line.
Held, the application should be allowed.
The standard of review on the issue of jurisdiction was that of correctness, the issue being a question of law. The Interpretation Act makes it clear in paragraph 34(1)(a) that it is the terms of the enactment which state that an accused may be prosecuted for an offence by indictment that creates the indictable offence. The Crown’s election does not change the terms of the enactment. Case law makes it clear that hybrid offences are indictable offences even if the Crown elects to proceed by way of summary conviction. So the Director did have jurisdiction to make the impugned decision.
However, regardless of the applicable standard of review, the Director’s error in exercising his discretion was fatal to the decision. The Director stressed the point that, when the applicant brought his cousin to Canada as a refugee claimant, he gave her the opportunity to improperly claim refugee status ahead of other prospective refugee claimants who had been waiting in line. There is no queue for refugee claimants and there are no refugee camps in Sri Lanka. Had the Director not misunderstood the situation, he may well have exercised his discretion in a more generous manner.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Canadian Passport Order, SI/81-86, ss. 9, 10(a),(b).
Criminal Code, R.S.C. 1970, c. C-34, ss. 294(b) (as am. by S.C. 1974-75-76, c. 93, s. 25), 312, 313.
Immigration Act, R.S.C., 1985, c. I-2, ss. 94(1)(m),(2).
Immigration Act, 1976, S.C. 1976-77, c. 52, s. 19(2)(a).
Interpretation Act, R.S.C., 1985, c. I-21, ss. 34(1)(a),(c).
CASES JUDICIALLY CONSIDERED
APPLIED:
Ngalla v. Canada (Minister of Citizenship and Immigration) (1998), 152 F.T.R. 184; 44 Imm. L.R. (2d) 79 (F.C.T.D.); Dallman v. The King, [1942] S.C.R. 339; [1942] 3 D.L.R. 145; (1942), 77 C.C.C. 289; R. v. Connors (1998), 155 D.L.R. (4th) 391; [1998] 8 W.W.R. 421; 102 B.C.A.C. 1; 49 B.C.L.R. (3d) 376; 121 C.C.C. (3d) 358; 14 C.R. (5th) 200 (C.A.).
DISTINGUISHED:
Kai Lee v. Minister of Employment and Immigration, [1980] 1 F.C. 374 (1979), 102 D.L.R. (3d) 328; 30 N.R. 575 (C.A.).
CONSIDERED:
Potter v. Minister of Employment and Immigration, [1980] 1 F.C. 609 (1979), 108 D.L.R. (3d) 92; 31 N.R. 158 (C.A.).
REFERRED TO:
R. v. Belair (1988), 41 C.C.C. (3d) 329; 64 C.R. (3d) 179; 26 O.A.C. 340 (Ont. C.A.); R. v. Jans (1990), 108 A.R. 324; 59 C.C.C. (3d) 398 (C.A.).
APPLICATION for judicial review of a decision of the Canadian Passport Office revoking the applicant’s passport for having used it to assist his cousin from Sri Lanka to enter illegally into Canada, contrary to paragraph 94(1)(m) of the Canadian Passport Order. Application allowed.
APPEARANCES:
Lorne Waldman for applicant.
Michael H. Morris and Lara M. Speirs for respondent.
SOLICITORS OF RECORD:
Jackman, Waldman & Associates, Toronto, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order rendered in English by
[1] Simpson J.: Wignarajah Vithiyananthan (the applicant) seeks judicial review of a decision of the Director of the Security Policy and Entitlement Directorate (the Director) of the Canadian Passport Office (the Passport Office). On March 8, 1998, the Director issued a written decision (the Decision) in which he revoked the applicant’s Canadian passport pursuant to paragraph 10(b) of the Canadian Passport Order, SI/81-86 (the CPO).
The Facts
[2] The facts are not in dispute. The applicant is a Canadian citizen. He was originally a national of Sri Lanka, but was granted refugee status in Canada. The applicant was issued Canadian passport number VB967669 on July 26, 1995.
[3] On February 3, 1997, the applicant was charged under paragraph 94(1)(m) of the Immigration Act, R.S.C., 1985, c. I-2 (the Act), for having aided or abetted his cousin, a Sri Lankan national, to enter Canada illegally. The record discloses that the applicant’s cousin was in mortal danger in Sri Lanka. Relatives called the applicant and asked for his help. He determined that he could not arrange his cousin’s entry into Canada by lawful means, and he therefore agreed to meet her in Singapore for the purpose of escorting her to Canada. He helped her obtain a false Sri Lankan passport which she destroyed before her arrival in Canada. She applied for Convention refugee status upon her arrival in Canada, and has since been accepted as a Convention refugee. The applicant received no payment for helping his cousin. As well, he used his passport only for his own travel and there is no suggestion that his passport was altered, copied, or otherwise physically misused.
[4] Subsection 94(2) of the Act provides that an offence under paragraph 94(1)(m) of the Act is punishable by indictment or by way of summary conviction proceedings at the election of the Crown. Such offences are typically described as “hybrid offences”. The applicant agreed to plead guilty to the charge against him in exchange for the Crown’s agreement to proceed by way of summary conviction and to recommend a lenient sentence. The applicant was convicted by way of summary conviction on August 19, 1997, and was fined $500. He promptly paid the fine.
[5] In a letter dated February 25, 1998, Mr. Neville Wells of the Passport Office informed the applicant that the Passport Office was proposing to revoke his passport under the discretionary authority provided in paragraph 10(b) of the CPO. The Passport Office gave the applicant formal notice that he had 30 days to file an objection to the proposed revocation. There followed a lengthy exchange of correspondence between Mr. Wells and counsel for the applicant in which all the issues were canvassed.
The Decision
[6] As a matter of Passport Office policy, passports are normally revoked for five years from the date of the incident which justified the revocation. This would mean that, in the ordinary course, the applicant could have applied for a new passport after February 3, 2002. However, the Director exercised his discretion and reduced the revocation period by 15 months so that the applicant, as matters now stand, is free to apply for a passport after November 3, 2000.
[7] As I read his decision, the Director reached the following conclusions:
1. That he had jurisdiction to revoke the applicant’s passport under paragraph 10(b) of the CPO because the applicant had committed an indictable offence.
2. That the fact that the applicant had gone to the aid of a relative without payment was a positive mitigating factor.
3. That the applicant’s prompt admission of guilt and co-operation with the RCMP in its investigation was a positive mitigating factor.
4. That the applicant had helped a potential refugee applicant improperly “jump ahead” of other refugee claimants waiting to enter Canada. This was a negative factor that reduced the impact of the favourable mitigating circumstances.
5. That the need to safeguard the security, integrity and value of travel documents was an important consideration which weighed against exercise of discretion in the applicant’s favour.
The Issues
[8] At the hearing, the applicant took issue with findings 1 and 4 listed above. I will deal with each in turn.
Issue 1—Jurisdiction
[9] The standard of review I have applied in considering this issue is one of correctness as the outcome is entirely dependent on a question of law.
[10] Paragraph 10(b) of the CPO reads 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; [My emphasis.]
The dispute concerns the meaning of “committing an indictable offence”.
[11] With regard to the word “committed”, it is relevant to note that paragraph 10(a) of the CPO deals with people who have been “charged” with an offence, while section 9 covers both those who have been “charged” (paragraphs 9(b) and (c)) and those who have been “convicted” (paragraph 9(e)). In this context it is clear, and the applicant does not dispute, that the word “committed” in paragraph 10(b) of the CPO is not intended to include a requirement that a charge has been laid or that a conviction has been obtained.
[12] The problem arises with the meaning of “indictable offence”. The applicant concedes that a hybrid offence, if committed in Canada, is an indictable offence as long as no charges are laid or, if charges are laid, as long as the Crown proceeds by way of indictment. This flows from the Interpretation Act, R.S.C., 1985, c. I-21, which provides in paragraph 34(1)(a) that:
34. (1) Where an enactment creates an offence,
(a) the offence is deemed to be an indictable offence if the enactment provides that the offender may be prosecuted for the offence by indictment;
However, the applicant submits that if, as happened in his case, charges are laid and the Crown elects to proceed summarily and obtains a summary conviction, then his passport cannot be revoked for the commission of an indictable offence.
[13] The applicant relies on the decision of the Federal Court of Appeal in Kai Lee v. Minister of Employment and Immigration, [1980] 1 F.C. 374 (Lee). In that decision, the appellant was charged under paragraph 294(b) of the Criminal Code [R.S.C. 1970, c. C-34], as enacted in May of 1978 by the Criminal Law Amendment Act, 1975, S.C. 1974-75-76, c. 93 [section 25]. The section deals with theft of goods worth less than $200. It stated:
294. Except where otherwise provided by law, every one who commits theft
…
(b) is guilty
(i) of an indictable offence and is liable to imprisonment for two years, or
(ii) of an offence punishable on summary conviction,
where the value of what is stolen does not exceed two hundred dollars.
[14] The appellant was convicted by way of summary conviction under subparagraph 294(b)(ii). The question was whether paragraph 19(2)(a) of the Immigration Act, 1976 [S.C 1976-77, c. 52] applied. It said:
19. …
(2) No immigrant and, except as provided in subsection (3), no visitor shall be granted admission if he is a member of any of the following classes:
(a) persons who have been convicted of an offence that, if committed in Canada, constitutes … an offence that may be punishable by way of indictment under any other Act of Parliament and for which a maximum term of imprisonment of less than ten years may be imposed …. [My emphasis.]
The Court held that paragraph 294(b) of the Criminal Code did not create a hybrid offence. Rather, it created two separate offences. One was an indictable offence and the other was an offence which was punishable on summary conviction. Accordingly, because the appellant was convicted under subparagraph 294(b)(ii), the appellant was not caught by paragraph 19(2)(a) of the Immigration Act, 1976 because he had not been convicted of an offence that might have been punishable by way of indictment.
[15] In my view, Lee does not apply to the facts of this case because, in this case, the Act does not create two separate offences. Paragraph 94(1)(m) and subsection 94(2) read:
94. (1) Every person is guilty of an offence who
…
(m) knowingly induces, aids or abets or attempts to induce, aid or abet any person to contravene any provision of this Act or the regulations.
(2) Every person who is guilty of an offence under subsection (1) is liable
(a) on conviction on indictment, to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding two years or to both; or
(b) on summary conviction, to a fine not exceeding one thousand dollars or imprisonment for a term not exceeding six months or to both.
It is clear that, while there is only one offence, there are two procedures for obtaining a conviction. This is a hybrid offence.
[16] There is another important difference between Lee and the case at bar. In this case, the Passport Office is given jurisdiction to determine whether an offence has been committed. In contrast, in Lee, jurisdiction to exclude under the Act did not arise until there had been a conviction.
[17] In 1979, the Federal Court of Appeal considered the meaning of “indictable offence” in Potter v. Minister of Employment and Immigration, [1980] 1 F.C. 609 In that case, the appellant sought to set aside a deportation order made in the first instance by an adjudicator. He had been convicted in England of receiving stolen goods. The adjudicator had not made a finding about whether he was convicted on indictment in England, but there was no issue that, in Canada, the offence was a hybrid offence under sections 312 and 313 of the Criminal Code. Accordingly, the Court of Appeal held that paragraph 19(2)(a) of the Immigration Act, 1976 applied because, although there was no conviction in Canada, the appellant had been convicted abroad of an offence which might have been punishable in Canada by way of indictment.
[18] Against this background, counsel for the applicant argues that, once an election has been made by the Crown to prosecute a hybrid offence summarily under paragraph 94(2)(b) of the Act, the offence is no longer an indictable offence. He argues that, following an election, the fact that the prosecution could have been by indictment becomes irrelevant and the Passport Office loses its jurisdiction to revoke for the commission of an indictable offence. I am not able to agree with this submission for two reasons. Firstly, the Interpretation Act makes it clear in paragraph 34(1)(a) that it is the terms of the enactment which state that an accused may be prosecuted for an offence by indictment that creates the indictable offence. The Crown’s election does not change the terms of the enactment. Secondly, the election is not necessarily determinative of the procedure which will ultimately be used to deal with the charges. There have been cases where charges were laid and an election was made to proceed by way of summary conviction. Thereafter, before the accused entered a plea, the Crown re-elected and proceeded by indictment. (See R. v. Belair (1988), 41 C.C.C. (3d) 329 (Ont. C.A.); R. v. Jans (1990), 108 A.R. 324 (C.A.).)
[19] However, since in this case there was a summary conviction, the next question is whether the summary conviction means that the offence can no longer be an indictable offence. In this regard, counsel for the applicant relied on paragraph 34(1)(c) of the Interpretation Act. It reads:
34. (1) …
(c) if the offence is one for which the offender may be prosecuted by indictment or for which the offender is punishable on summary conviction, no person shall be considered to have been convicted of an indictable offence by reason only of having been convicted of the offence on summary conviction.
In my view, this section does not help the applicant. It changes neither the definition of indictable offence in paragraph 34(1)(a) nor the terms of the enactment which creates the indictable offence.
[20] In Ngalla v. Canada (Minister of Citizenship and Immigration) (1998), 152 F.T.R. 184 (F.C.T.D.), Nadon J. dealt with paragraph 34(1)(c). I am in complete agreement with his conclusion. He had this to say at paragraph 8 [pages 187-188]:
With respect, it is my view that counsel for the applicant has misunderstood the purpose of the Interpretation Act and in particular s. 34(1)(c) thereof. The paragraph simply provides that, where the Criminal Code gives to the prosecutor discretion with respect to the most appropriate mode of proceeding against an accused, and an accused is found guilty of such an offence on summary conviction, that person shall not be considered as having been found guilty of an indictable offence. Thus, the applicant who was found guilty of theft on summary conviction cannot be considered as having been found guilty of an indictable offence. That is the sole purpose of s. 34(1)(c) of the Interpretation Act.
[21] Finally, other case law makes it clear that hybrid offences are indictable offences even when summary proceedings are used to obtain a conviction. In this regard, I have considered Dallman v. The King, [1942] S.C.R. 339, at page 345; and R. v. Connors (1998), 155 D.L.R. (4th) 391 (B.C.C.A.), at paragraphs 69 and 73 [pages 418 and 419].
Conclusion on Issue 1
[22] I have concluded that the Director had jurisdiction to make the decision. He had for consideration an applicant who had admitted that he had committed an indictable offence. This did not change when the applicant was charged or when the Crown elected to proceed summarily, and it did not change on the applicant’s summary conviction. What changed at the time of conviction was that he could not be said to have been convicted of an indictable offence. This, however, did not alter the fact that he had committed such an offence.
[23] I have considered whether this conclusion makes practical sense and I have decided that it does. The Passport Office is concerned, among other things, with passport integrity and security. It makes sense that it would be entitled to revoke a passport if a potentially serious, i.e. an indictable, offence were committed. If it turned out that the offence was not actually very serious, the Director would have the discretion not to revoke a passport or to impose a short period of revocation. Because criminal proceedings are not a condition precedent to the revocation of a passport, it seems logical that the objectives of the Passport Office may be pursued without being thwarted if a summary conviction is obtained in respect of an indictable offence.
Issue 2—The Exercise of Discretion
[24] On this issue, the respondent urged me to accord the highest deference to the Director and to review his exercise of discretion only if I found it to be patently unreasonable. The applicant, on the other hand, asked me to review on the basis of reasonableness simpliciter. I have concluded that there is no need to determine which standard of review applies because, regardless of the standard used, the error committed by the Director is fatal to his decision.
[25] The Director believed that, when the applicant brought his cousin to Canada as a refugee claimant, he gave her the opportunity to improperly claim refugee status ahead of other prospective refugee claimants who had been waiting in line. This, as counsel for both parties acknowledged, was an error. There is no queue for refugee claimants and there are no refugee camps in Sri Lanka. However, counsel for the respondent submitted that the error must have been of no importance given that, in spite of the error, the Director reduced the period of revocation by 15 months.
[26] I am unable to agree with this submission. In my view, the Director was very troubled by what he perceived to be the unjust consequences of the applicant’s conduct. The Director said:
It is not for me to formulate an opinion as to the merits of any refugee claim. Counsel’s argument is to be verified against Canada’s policy of welcoming and settling a significant number of refugees. If passport holders “select” (by virtue of their assistance), in lieu of humanitarian or Non Profit Organizations, family members who could apply to be sponsored under the United Nations Refugee Program, they jump ahead of people who are awaiting in refugee camps to settle in foreign lands. Inasmuch as it is inappropriate for me to ignore the circumvention of the immigration process, I find it difficult to absolve subjects who would engage in such activities, whatever their objectives, beliefs and reasons, given that there are hundreds of thousands of waiting, law-abiding Convention refugees who are sponsored by recognized world humanitarian organizations.
And later, the Director said:
I am prepared to give the subject the benefit of the doubt in accepting the argument that his actions were motivated for “compassionate” reasons. However, this was not a compelling compassionate reason, given that the drama described by the subject affects many others. I have mentioned the participation of NGO’s trying to deal with the flow of Refugee claimants. I also note that the smuggle was (allegedly but for the sake of the argument, nonetheless considered by the undersigned as) a cousin, i.e. not an immediate family member of the subject, and that RCMP signalled the subject’s willingness to cooperate during their investigation leading to the charges under the Immigration Act. [Emphasis in original.]
Conclusion on Issue 2
[27] Based on these statements, I am satisfied that, had the Director understood that the applicant’s cousin did not “jump ahead” of other refugee claimants, the Director could well have exercised his discretion in a more generous manner. The error was therefore material.
The Result
[28] This matter will be sent back for redetermination by a person in the Canadian Passport Office other than the Director.
[29] As counsel for both parties advised the Court that they were not seeking costs, there will be no order as to costs.