Kamel v. Canada (Attorney General)

Kamel v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2011-09-08
Neutral citation
2011 FC 1061
File numbers
T-1366-10
Notes
Digest
Decision Content
Federal Court
Cour fédérale
Date: 20110908
Docket: T-1366-10
Citation: 2011 FC 1061
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, September 8, 2011
PRESENT: The Honourable Mr. Justice Scott
BETWEEN:
FATEH KAMEL
Applicant
and
ATTORNEY GENERAL OF CANADA
MINISTER OF FOREIGN AFFAIRS
PASSPORT CANADA
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1] On April 6, 2001, the Tribunal de Grande Instance de Paris convicted the applicant, a Canadian citizen, as follows:
[translation]
. . .
FINDS Fateh KAMEL GUILTY of PARTICIPATION IN A CRIMINAL ASSOCIATION FOR THE PURPOSE OF PREPARING AN ACT OF TERRORISM (acts committed between 1996 and 1998, in ROUBAIX (North) and in French territory as well as in CANADA, TURKEY, BOSNIA, BELGIUM and ITALY), COMPLICITY in FORGING AN ADMINISTRATIVE DOCUMENT ATTESTING TO A RIGHT, AN IDENTITY OR A CAPACITY (acts committed during 1996, in ROUBAIX (North) and in French territory as well as in CANADA, TURKEY, BOSNIA and BELGIUM) and COMPLICITY in USING A FORGED ADMINISTRATIVE DOCUMENT ATTESTING TO A RIGHT, AN IDENTITY OR A CAPACITY (acts committed during 1996, in ROUBAIX (Nord) and in French territory as well as in CANADA, TURKEY, BOSNIA and BELGIUM).
With the circumstance that the offence set out above was in principal or related connection with an individual or collective undertaking the purpose of which is to seriously disturb public order through intimidation or terror.
SENTENCES HIM TO A TERM OF IMPRISONMENT OF EIGHT YEARS.
ORDERS THAT HE BE HELD IN DETENTION.
Having regard to articles 422‑4 and 131‑30 of the Penal Code, orders that he be PERMANENTLY BANISHED FROM FRENCH TERRITORY.
. . .
[2] Since he was released and returned to Canada in January 2005, the applicant has been trying, without success, to obtain a Canadian passport. This is why he filed an application for judicial review under subsection 18.1(1) of the Federal Courts Act (RSC 1985, c F‑7) and for remedy under subsection 24(1) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act (UK), 1982, c 11 (Charter). The applicant is challenging the decision by Canada’s Minister of Foreign Affairs and the federal agency of Passport Canada (Passport Canada) dated July 15, 2010, to refuse to issue him a passport for reasons of national security on the basis of section 10.1 of the Canadian Passport Order, SI/81‑86, as amended by the Order Amending the Canadian Passport Order, SI/2004‑113 (Order).
I. Facts
[3] The applicant has been a Canadian citizen since January 27, 1993. He was born in Algeria in 1960 and immigrated to Canada in 1987.
[4] In May 1999, the applicant was arrested in Jordan, then extradited to France, where he was convicted for his [translation] “role as principal organizer of international networks determined to prepare attacks and procure weapons and passports for terrorists acting throughout the world” (Tribunal de Grande Instance de Paris, case No 9625339012, judgment dated April 6, 2001, page 86).
[5] After serving half of his eight‑year prison sentence, the applicant was released. Passport Canada then issued him a passport valid only for his return trip. He therefore returned to Canada in January 2005.
[6] On June 13, 2005, the applicant applies for a new passport at the Passport Canada office in Montréal. On December 1, 2005, the Minister refused, under section 10.1 of the Order, to issue him a passport.
[7] The applicant then files an application for leave and for judicial review on the grounds that the principles of procedural fairness had been breached and that section 10.1 of the Order violates his rights guaranteed by sections 6, 7 and 15 of the Charter.
[8] On March 13, 2008, Justice Noël of the Federal Court allows the application for judicial review in part. He concludes, first, that the principles of procedural fairness had been breached and, second, that section 10.1 of the Order infringes the applicant’s mobility rights guaranteed by subsection 6(1) of the Charter. According to Justice Noël, this infringement is not justified under section 1 of the Charter. Consequently, he does not rule on the application of sections 7 and 15 of the Charter (Kamel v Canada (Attorney General), 2008 FC 338, [2009] 1 FCR 59 [Kamel 2008]).
[9] Justice Noël declares that section 10.1 of the Order is invalid and gives the Governor General in Council six months to rewrite section 10.1 of the Order and make a new order. The judge sets aside the Minister’s decision dated December 1, 2005, to refuse to issue the applicant a passport, but also refuses to make an order compelling the Minister to issue the requested passport.
[10] The Attorney General of Canada (AGC) files an appeal. The appeal is essentially limited to the issue of the constitutional validity of section 10.1 of the Order with regard to sections 1 and 6 of the Charter, since the AGC admitted that the principles of procedural fairness had been breached.
[11] On January 23, 2009, the Federal Court of Appeal allows the AGC’s appeal and sets aside Justice Noël’s decision in part (Kamel v Canada (Attorney General), 2009 FCA 21, [2009] 4 FCR 449 [Kamel 2009]). In its decision, the Federal Court of Appeal states that section 10.1 of the Order infringes subsection 6(1) of the Charter, but that this infringement can be justified under section 1 of the Charter.
[12] The applicant then applies for leave to appeal to the Supreme Court of Canada.
[13] On February 10, 2009, the applicant files another passport application. Passport Canada informed him that this new application would not be processed immediately because the time for filing an application for leave to the Supreme Court of Canada had not yet expired.
[14] In a letter dated February 26, 2009, Passport Canada informs the applicant that his passport application dated February 10, 2009, would not be processed because Justice Noël’s decision still stands. This decision states that the applicant’s file must be re‑examined. As a result, the Minister must deal with the passport application dated June 13, 2005.
[15] On April 3, 2009, the applicant formally demands that Passport Canada issue him a passport.
[16] In a letter dated April 24, 2009, the Department of Justice Canada confirms to the applicant that Passport Canada intends to process his passport application.
[17] In a subsequent letter dated April 27, 2009, Passport Canada requires the applicant to complete and file a new passport application form. Passport Canada’s policies and procedures require that the passport application form not predate the review of the file by more than one year.
[18] On May 5, 2009, the applicant files the new form.
[19] In a letter dated July 27, 2009, Passport Canada notifies the applicant that his eligibility for a passport is being investigated under section 10.1 of the Order. The letter specifies that the applicant’s criminal conviction by the Tribunal de Grande Instance de Paris had triggered Passport Canada’s investigation. The applicant is invited to file all additional facts, mitigating information and corrections to inaccurate information which could be relevant.
[20] On August 20, 2009, the Supreme Court of Canada denies the applicant’s leave to appeal.
[21] On December 23, 2009, the applicant files an application for leave and for judicial review against the AGC and Passport Canada for a declaratory judgment and remedy under the Charter (file number T‑2151‑09 of this Court).
[22] On January 14, 2010, Passport Canada notifies the applicant that his file has been given to the Minister. The applicant is also given a copy of the first draft of the recommendation to the Minister. The applicant is asked to provide all additional facts, mitigating information and corrections to inaccurate information which could have a bearing on Passport Canada’s recommendation to the Minister.
[23] On March 5, 2010, the applicant replies to Passport Canada. He points out that the first draft of the recommendation to the Minister left out certain important facts in his favour.
[24] On April 7, 2010, the applicant receives a copy of the second draft of the recommendation to the Minister which Passport Canada prepared after considering the information he had sent the agency in March. This second draft addresses the points raised by the applicant in response to the first draft. Passport Canada again asks him to file all additional facts that could be relevant.
[25] On April 19, 2010, the applicant responds to the second draft and states that this draft still fails to take into account the comments made in response to the first draft.
[26] On June 16, 2010, Passport Canada gives the Minister its recommendation that he refuses, under section 10.1 of the Order, to issue a passport to the applicant. In support of Passport Canada’s negative recommendation, the Minister receives a complete file containing all of the information relied on by the agency in making its recommendation.
[27] In a letter dated June 17, 2010, the applicant is notified that, following a review of all of the information in his file, including his written representations of March and April 2010, Passport Canada sent his file to the Minister and recommends that the Minister refuse to issue him a passport. This final recommendation also contains the applicant’s comments in response to the second draft.
[28] On June 17, 2010, the Minister makes his decision. He refuses, under section 10.1 of the Order, to issue a passport to the applicant. The applicant is informed of the decision in a letter dated July 15, 2010.
[29] On July 28, 2010, the Minister’s decision and the French translation of that decision are sent to the applicant.
[30] Following the Minister’s decision, the Court concludes, on July 28, 2010, that the application for judicial review in file T‑2151‑09 is moot. As a result, the Court does not rule on that application.
[31] On August 25, 2010, the applicant files a notice of application for judicial review of the decision to refuse him a passport.
[32] This is the application under consideration by the Court.
II. Issues
[33] The issues are as follows:
1. What is the appropriate standard of review for decisions made by the Minister under section 10.1 of the Order?
2. Were the principles of procedural fairness breached?
3. Were the applicant’s constitutional rights guaranteed by section 6 of the Charter violated by the investigative process, Passport Canada’s recommendation and the Minister’s decision to refuse to issue him a passport?
4. Were the applicant’s constitutional rights guaranteed by section 7 of the Charter violated by the investigative process, Passport Canada’s recommendation and the Minister’s decision to refuse to issue him a passport?
5. Were the applicant’s constitutional rights guaranteed by section 8 of the Charter violated by the investigative process, Passport Canada’s recommendation and the Minister’s decision to refuse to issue him a passport?
6. If so, are those violations justified under section 1 of the Charter?
7. Should the Court make a declaratory judgment stating that the Minister of Foreign Affairs and Passport Canada infringed the applicant’s rights guaranteed by sections 6, 7 and 8 of the Charter?
8. Given the violation of the applicant’s rights as guaranteed by sections 6, 7 and 8 of the Charter, should the Court order Passport Canada to issue a passport to the applicant as relief under subsection 24(1) of the Charter?
Relevant legislation
[34] The relevant legislation is reproduced in the Appendix to these reasons.
1. What is the appropriate standard of review for decisions made by the Minister under section 10.1 of the Order?
Applicant’s submissions
[35] The applicant has not submitted any arguments on this issue.
Respondents’ submissions
[36] The respondents submit that paragraphs 57 to 61 of Kamel 2008 establish that, given the specialized expertise of the decision‑maker, the subject matter of the Order, the nature of the question to be decided and the fact that the power to be exercised is discretionary, the Court must apply the reasonableness standard, a standard commanding considerable deference in its application.
Analysis
[37] First, the Court wishes to reiterate that the standard applying to questions of fact is the reasonableness standard. The Court agrees entirely with Justice Noël’s position in this same case (Kamel 2008), which he expressed as follows in his decision:
[59] The specialized expertise of the decision maker in these cases, the subject‑matter of the Order and the decision maker’s concerns regarding national and international security are all factors that plainly suggest that the decision maker should be given wide discretion and considerable deference. In these cases, the courts must exhibit restraint. In order to decide these questions, there must be specialized knowledge of the subject and of Canada’s commitments in similar circumstances, both nationally and internationally, and of the national security situation.
[38] As for the issues concerning the duty of procedural fairness and violations of Charter rights, those are questions of law requiring application of the correctness standard (Kamel 2008 at paragraph 62).
2. Were the principles of procedural fairness breached?
Applicant’s submissions
[39] The applicant contends that, for the reasons set out below, the principles of procedural fairness were breached in his file.
Failure to mention favourable information
[40] In the case at bar, the applicant contends that the respondents fail, in their recommendation to the Minister, to mention a number of relevant pieces of information favourable to the applicant, specifically:
The applicant is not subject to section 9 of the Order contemplating refusal to issue a passport to an applicant, a fact not disputed by Passport Canada.
All of the previous passports issued to the applicant were lawfully renewed or replaced, a fact acknowledged by Passport Canada.
The 2005 report by the Canadian Security Intelligence Service [CSIS] does not identify the applicant as an individual who is a danger to national security, a fact and an item of evidence on which Passport Canada is silent in its recommendation to the Minister. That fact was already known by Passport Canada following the application for judicial review.
The applicant is not the subject of any legal restriction on grounds of terrorism or a danger to the national security of Canada imposed either under the Anti‑terrorism Act or the Criminal Code or by a court order. That is a fact and an item of evidence on which Passport Canada is silent in its recommendation to the Minister.
The applicant is not on a Canadian terrorist list, a fact that Passport Canada in no way disputes.
The applicant is not on an international terrorist list, a fact that Passport Canada in no way disputes.
The French law under which the applicant was convicted in France has received harsh criticism by the courts in Canada and in France. The following is stated in France v Ouzchar, [2001] OJ No 5713 (QL) [Ouzchar]:
21 In terms of the strength of the case, I am compelled to say that I find the manner in which the charges against the defendant were proceeded with in France to be highly disturbing. While there may be an explanation forthcoming in the fullness of time, on the record before me it is inexplicable why notice of the charges or of the trial was not given to the defendant.
22 Further, the information before me regarding the offences is contained entirely in the judgment of the High Court of Paris. While I do not mean to be critical because I do not know the usual practice of that court in terms of what normally is included in a judgment, I must say that the judgment is long on generalities and short on specifics as to exactly the events and activities of this defendant in respect of the offences with which he was charged.
23 While I appreciate that certain telephone numbers were found in the defendant’s possession and that certain telephone calls were either placed from the defendant’s telephone or received at his telephone number, that evidence by itself would appear to fall considerably short of what would be considered necessary in this court for a conviction on these offences beyond a reasonable doubt. There is no information provided regarding the specifics of any discussions that took place between the defendant and any of the other individuals or the specifics of any telephone calls that were intercepted between the defendant and any of the other individuals or any other similar direct evidence of inculpatory behaviour by the defendant.
. . .
25 . . . I adopt the approach of Mr. Justice Green in R. v. Parsons (1997), 124 C.C.C. (3d) 92 (Nfld. C.A.) that the court should consider the matter from the point of view of a reasonably informed, right thinking member of the community, cognizant of the presumption of innocence and the notion that an accused person should not be deprived of liberty without a sufficient legal basis.
No new facts or information about the applicant has been entered in Passport Canada’s file since the Tribunal de Grande Instance de Paris delivered its judgment in 2001 (pages 1 and 6 of the recommendation).
The applicant’s criminal record does not establish that it is necessary, for national security, to deny him his passport. In Thompson v Canada (Minister of Citizenship and Immigration), [1996] FCJ No 1097 (QL), (1996), 41 Admin LR (2d) 10 at paragraph 19, the Court wrote as follows:
19 I am satisfied that although there may be no need to impose formal guidelines on the respondent regarding what constitutes a danger to the public, that phrase must have some meaning in itself; it must constitute more than mere duplication of the conviction for a serious offence element of the legislative scheme. I am satisfied that Parliament did not intend for danger opinions to have no meaning, and that in order for the respondent to form an opinion pursuant to subsection 70(5), the fact of a conviction alone is an insufficient basis; the circumstances of each case must, over and above the conviction, indicate a danger to the public. By this, I do not wish to be taken as indicating that there is no instance where a danger opinion pursuant to subsection 70(5) could be properly issued where a person has only one conviction; I simply find that there must be circumstances in the case additional to a single conviction that indicate a danger to the public. There may very well be cases where the circumstances surrounding a single conviction point to a danger to the public. . . .
Our society has no place for double punishment or discrimination on the basis of criminal record, which the respondents have not taken into account. The respondents acknowledge that the applicant’s file contains no new facts that have come to light since the Tribunal de Grande Instance de Paris’ decision in 2001 (Quebec (Commission des droits de la personne et des droits de la jeunesse) v Maksteel Québec Inc, [2003] 3 SCR 228 at paragraph 63).
Failure to provide Passport Canada’s investigation report
[41] Furthermore, the applicant contends that he never received Passport Canada’s investigation report (applicant’s affidavit at page 28 of the Applicant’s Record), whereas, according to the declaration in Kamel 2008, that report should have been disclosed to him. The applicant therefore submits that the respondents are failing to comply with the Court’s order as regards their duty to act fairly (see Kamel 2008 at paragraphs 87 to 89).
Breaches of duty to act within a reasonable time
[42] The applicant also submits that the respondents breached the principles of procedural fairness. In fact, the respondents did not resume processing the applicant’s passport application within a reasonable time, and the applicant has been denied a passport since June 2005.
[43] The applicant also points out that, in 2008, owing to breaches of procedural fairness, the Federal Court set aside the Minster’s decision to refuse him a passport (Kamel 2008). On appeal, the respondents nonetheless acknowledged the breaches of the principles of procedural fairness. This aspect of the decision was not appealed (since this ground for appeal was withdrawn on July 9, 2008) (paragraphs 22 to 25 at pages A19 to A24 of the Applicant’s Record).
[44] The applicant points out that approximately two years went by following the first decision until the Minister informed the applicant of the decision to refuse him a passport.
Factual errors
[45] The applicant also submits that the respondents are incorrect to contend that he was given 30 days to reply to the letter dated July 27, 2009 (page A40 of the Applicant’s Record), as this is false according to the contents of the letter from Passport Canada dated July 27, 2009 (pages A36 to A39 of the Applicant’s Record).
Reasonable apprehension of bias
[46] The applicant argues that the sequence of events leading up to Passport Canada’s final recommendation to the Minister (pages A79 to A90 of the Applicant’s Record) supports the conclusion of a reasonable apprehension of bias.
Respondents’ submissions
[47] The respondents, on the other hand, reply that the principles of procedural fairness were not breached. The respondents are relying on the decision in Kamel 2008, in which Justice Noël stated that having regard to the five factors from Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 [Baker]), the principles of procedural fairness are satisfied if:
(a) the investigation includes disclosure to the individual affected of the facts alleged against him or her and all of the information obtained in the course of the investigation;
(b) the investigation informs the individual of the investigator’s objectives and gives the individual an opportunity to respond fully; and
(c) the decision‑maker must have all of the facts necessary in order to make an informed decision.
[48] The respondents therefore submit that the applicant has failed to establish that the principles of procedural fairness were breached in any way in this case.
(a) The investigation includes disclosure to the individual affected of the facts alleged against him or her and the information obtained in the course of the investigation
[49] The respondents emphasize that the letter dated July 27, 2009, notifies the applicant that, on account of the judgment made against him by the Tribunal de Grande Instance de Paris in 2001, Passport Canada is in the process of reviewing his eligibility for a passport.
[50] The respondents remind the Court that the applicant did not provide any additional information in the interval between the date he received the letter dated July 27, 2009, and the date the first draft of the recommendation was sent, January 14, 2010.
[51] The respondents contend that the applicant was informed of all of the relevant facts and documents from the investigation that form the basis for the allegations against him when he was sent the drafts of Passport Canada’s recommendation to the Minister on January 14 and April 7, 2010.
[52] The respondents also submit that Passport Canada’s recommendation, given to the Minister on June 16, 2010, and disclosed to the applicant, contains no new facts.
(b) The investigation informs the individual of the investigator’s objectives and gives the individual an opportunity to respond fully
[53] The respondents note that it was open to the applicant to file further information and arguments in response to the two drafts of Passport Canada’s recommendation and that the applicant exercised that right.
(c) The decision‑maker must have all of the facts necessary in order to make an informed decision
[54] The respondents deny the applicant’s allegation that the recommendation is silent on the points raised in his replies of March and April 2010. The recommendation to the Minister addresses the additional information and arguments presented by the applicant, which are appended to the recommendation. In this regard, the respondents remind the Court of the contents of the file sent to the Minister, which is found, more specifically, at Tab B of the Respondents’ Record, at pages 1347 to 1905.
[55] The respondents submit that the Minister had all of the relevant information and documents required to make an informed decision.
[56] The respondents further state that, in the circumstances, given the nature of the decision and the legal framework through which it was made and taking into account the process followed by Passport Canada, the applicable principles of procedural fairness were observed.
Analysis
[57] To establish the scope of the duty of procedural fairness in this case, the Court is relying on Justice Noël’s decision in Kamel 2008, especially since both parties agree on this element of the decision. In this regard, it is useful to reproduce the paragraphs of the judgment setting out the main principles that are applicable:
[66] The decision of the Supreme Court in Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, and more specifically the comments we read at paragraph 115, offers some assistance in identifying those guarantees:
What is required by the duty of fairness—and therefore the principles of fundamental justice—is that the issue at hand be decided in the context of the statute involved and the rights affected: Baker, supra, at para. 21; Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, at p. 682; Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 S.C.R. 1170, per Sopinka J. More specifically, deciding what procedural protections must be provided involves consideration of the following factors: (1) the nature of the decision made and the procedures followed in making it, that is, “the closeness of the administrative process to the judicial process”; (2) the role of the particular decision within the statutory scheme; (3) the importance of the decision to the individual affected; (4) the legitimate expectations of the person challenging the decision where undertakings were made concerning the procedure to be followed; and (5) the choice of procedure made by the agency itself: Baker, supra, at paras. 23‑27. This is not to say that other factors or considerations may not be involved. This list of factors is non‑exhaustive in determining the common law duty of fairness: Baker, supra, at para. 28. It must necessarily be so in determining the procedures demanded by the principles of fundamental justice.
[67] Having regard to factors 1 and 2, the Court finds first that the decision to refuse or revoke a passport is a discretionary decision. However, the nature of the procedures leading to that decision are in the nature of an investigative proceeding. In the case before us, the CPO carried out an investigation, and invited Mr. Kamel to make comments; it then made a recommendation to the Minister. Because the consequences of denying a passport are significant, the Court concludes that evaluating and weighing the national security of Canada and other countries, having regard to the applicant’s rights and obligations, calls for the application of particularly stringent procedural guarantees, which must include real participation by the applicant in the investigative process.
[68] In this case, the Minister had to decide whether to issue a passport to a Canadian citizen, and an administrative investigation was conducted. As we shall see, denial of a passport application prevents a Canadian citizen from travelling throughout the world. Accordingly, the decision is an important one for the person who is denied a passport. As a result, the investigation leading to the recommendation to be made to the Minister must include full participation by the individual affected. Procedural guarantees are therefore necessary: a passport applicant must be able to know exactly what the allegations against him or her are and what the information collected in the course of the investigation is, and must be able to respond to it completely, so that the report submitted to the Minister includes his or her comments.
[69] The third factor requires that the importance of the right affected be considered. As noted earlier, Mr. Kamel’s interest in obtaining his Canadian passport is an important one, not only because he needs it in order to travel, but also because a passport is an identity document that gives its holder the protection of the other country, at Canada’s request. Mobility rights are facilitated by this travel document. As the Supreme Court said in Suresh, above, at paragraph 118: “The greater the effect on the life of the individual by the decision, the greater the need for procedural protections to meet the common law duty of fairness and the requirements of fundamental justice under s. 7 of the Charter.” Denial of a Canadian passport has major consequences both personally and financially. No elaboration on that point is needed. As a result, this factor calls for adherence to stronger procedural guarantees to be observed in applying section 10.1 of the Order.
[70] The fourth factor involves assessing the legitimate expectations of the person challenging the decision where undertakings were made concerning the procedure to be followed. In this case, it was reasonable for Mr. Kamel to expect that the CPO would inform him of their concerns and give him a real opportunity to respond to them. Given the history of passport renewals and the fact that the CPO had issued him a special passport for him to return to Canada on January 19, 2005, on the one hand, and his offer to meet with CPO officers, on the other, it is reasonable that the applicant would have had certain legitimate expectations in respect of the investigative process.
[71] For the fifth factor, the Court has to examine the choice of procedure made by the agency. The Minister has to make a decision based on the information submitted by the investigator. In this case, the information consisted entirely of what was in the CPO’s report, and the CPO has an obligation to guarantee that its investigation is likely to give the Minister all the information needed for making an informed decision. The procedure followed did not include real participation by the applicant, and that has an impact on the content of the report.
[72] Having regard to the five factors, the Court concludes that the CPO had an obligation to follow a procedure that was in compliance with the principles of procedural fairness, meaning fairness to the applicant. This does not mean that a right to a hearing would automatically be a necessary part of the investigation (for example, where the passport applicant’s credibility is in issue). 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. Did the CPO adhere to those principles in conducting the investigation?
[58] In his decision, Justice Noël criticizes Passport Canada’s omission to provide the applicant with a copy of the CSIS report that served as a basis for the decision to recommend that the applicant be refused a passport. As Justice Noël points out, at paragraph 19, “In the CPO document that accompanied the recommendation to the Minister, there is no specific reference to the CSIS document. However, it is apparent from reading the CPO report to the Minister that it was a determining factor.”
[59] At paragraph 83 of his decision, Justice Noël also takes into account the fact that the investigation file does not objectively reflect the applicant’s position. Justice Noël emphasizes that this report does not present the Minister with both parties’ positions, but instead sets out the position of Passport Canada. He also states that “[a] report of this nature must present the parties’ positions in a factual and balanced way”.
[60] In this case, the Court finds that the principles of procedural fairness were not breached.
[61] It is clear, from reading the documents in the file, that Passport Canada takes the above comments by Justice Noël into account. In addition, the report containing the recommendation to the Minister integrates all of the applicant’s representations. Certainly, counsel for the applicant submits that the report leaves something to be desired in terms of the wording used to convey the applicant’s representations that no charges have been laid against him since his conviction in France, in 2001. However, from reading the recommendation to the Minister, this Court is satisfied that the opposite is true, since the recommendation reproduces verbatim excerpts from the letter to Passport Canada, dated April 19, 2010, from the counsel for the applicant. Indeed, the recommendation states, [translation] “In her reply to the first draft of the recommendation made under section 10.1 of the Canadian Passport Order concerning national security, Mr. Kamel’s legal advisor, Johanne Doyon, states that Mr. Kamel has never been investigated under section 9 of the Order, is not on a list of persons considered to be Canadian or international terrorists, has never been arrested for or convicted of any crime since his release in 2004 and has lawfully replaced all of the passports issued in his name”.
[62] Furthermore, the Court notes that the applicant did indeed have access to the investigation report prepared by Passport Canada and was given the opportunity to comment on it. At paragraph 99 of his memorandum, the applicant contends to the contrary. However, on written cross‑examination on his affidavit, more specifically at page 38 of the Applicant’s Record, the applicant gives the following answer to a question:
[translation]
I am referring to the investigation report prepared by Passport Canada’s Investigation and Entitlement Review Section, Security Bureau and/or Investigations Division as part of their investigation of me. The investigation report I refer to in my affidavit may also include all reports about me prepared by the Canadian Security Intelligence Service and disclosed to Passport Canada, as the case may be.
[63] Aside from Passport Canada’s investigation report, there are no reports in the file. The Court notes that the applicant did in fact have access to Passport Canada’s investigation report, since he states, many times in his written submissions, that this report does not identify him as posing a danger to national security:
[translation]
The 2005 CSIS report did not identify him as a danger to national security, a fact and item of evidence overlooked in the federal agency’s recommendation to the Minister despite the fact that Passport Canada was already in possession of the report as part of the judicial review in T‑100‑06 (Kamel c Canada, 2008 CF 338, paras. 19, 23, 79 and 85) . . .
[64] What is more, the following documents are included in full in the appendices to the recommendation to the Minister: counsel for the applicant’s letters to Passport Canada dated March 4 and 16, 2010, and a complete copy of the decision in Ouzchar, above, referred to by the applicant. The sections of Canada’s Criminal Code referred to by counsel for the applicant are also found in the appendices to the recommendation. Considering this material evidence, the applicant’s contention that the principles of procedural fairness were breached cannot be accepted because the file given to the Minister contained all of the applicant’s representations.
[65] Regarding the time that elapsed before the Minister made his decision, although the Court sympathizes with the applicant, it cannot find that there was undue delay in this case. It is true that the decision of the Federal Court of Appeal is dated January 23, 2009; however, this Court finds it reasonable that Passport Canada waited until the Supreme Court made its decision on the application for leave to appeal. It was not until August 2009 that the Supreme Court denied the application for leave to appeal. The Court also notes that on January 14, 2010, approximately five months later, Passport Canada sent the applicant the first draft of its recommendation. Considering the particular nature of the file, the Court cannot characterize the delay as “unreasonable”. Moreover, following the first communication by Passport Canada, the time between communications shortens considerably.
[66] As for the applicant’s argument concerning Passport Canada’s errors of fact, more specifically regarding the reference allegedly made in the letter dated July 27, 2009, to a 30‑day time limit for the applicant to send in his representations, the Court notes that the respondents do not specify the time limit in that letter. This requirement is instead found in the appendices to the letter delivered by hand to the applicant. In the letter dated January 14, 2010, the respondents merely state that [translation] “the applicant had 30 days to reply or provide relevant information”. In the circumstances, it is difficult for the Court to conclude that the respondents made inaccurate statements. However, the Court is of the opinion that the respondents had to specify the time the applicant had to reply if he then wanted to object to such a time limit. Such an error cannot provide a valid basis for asserting an apprehension of bias, especially since it did not result in any harm to the applicant, as, moreover, he has acknowledged through his counsel.
[67] For these reasons, the Court finds that the principles of procedural fairness applicable in this file were not breached.
3. Were the applicant’s constitutional rights guaranteed by section 6 of the Charter violated by the investigative process, Passport Canada’s recommendation and the Minister’s decision to refuse to issue him a passport?
Applicant’s submissions
[68] The applicant states that the case law and doctrine have established that refusal to issue a passport has a direct impact on the mobility rights guaranteed by section 6 of the Charter. Such a measure prevents citizens from freely entering or leaving their country (see Kamel 2008 at paragraph 113).
[69] The applicant once again stresses that the right of access to a passport is also acknowledged in the case law in various contexts. This access is considered a direct manifestation of the right guaranteed by section 6 of the Charter and section 12 of the International Covenant on Civil and Political Rights (International Covenant).
[70] The applicant therefore argues that the respondents are refusing, without reasonable justification, to issue him a passport, thus violating his rights guaranteed by subsection 6(1) of the Charter.
Respondents’ submissions
[71] The respondents acknowledge that a decision to refuse to issue a passport to a Canadian citizen violates the citizen’s rights guaranteed by subsection 6(1) of the Charter.
Analysis
[72] Given the statements of the Federal Court of Appeal in this case, the Court acknowledges that the decision to refuse to issue a passport to the applicant violates his rights guaranteed by subsection 6(1) of the Charter.
4. Were the applicant’s constitutional rights guaranteed by section 7 of the Charter violated by the investigative process, Passport Canada’s recommendation and the Minister’s decision to refuse to issue him a passport?
Applicant’s submissions
[73] The applicant asserts that the sections of the Order at issue in the case at bar, which allow for a passport to be refused, infringe general liberty and the security of the person.
[74] Acco