Kamel v. Canada (Attorney General)

Kamel v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2008-03-13
Neutral citation
2008 FC 338
File numbers
T-100-06
Notes
Reported Decision
Decision Content
Date: 20080313
Docket: T-100-06
Citation: 2008 FC 338
Ottawa, Ontario, the 13th day of March 2008
Present: Mr. Justice Simon Noël
BETWEEN:
FATEH KAMEL
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1] Fateh Kamel (the applicant or Mr. Kamel), a Canadian citizen of Algerian origin, is seeking judicial review of the decision of the Minister of Foreign Affairs (the Minister) which was delivered to him on December 14, 2005, refusing to issue him a passport under section 10.1 of the Canadian Passport Order, S.I./81-86 as amended by the Order Amending the Canadian Passport Order, S.I./2004-113 (the Order) because such action was necessary for the national security of Canada or another country.
[2] In this application, Mr. Kamel is seeking to have the Minister’s decision set aside and a passport issued. Mr. Kamel’s argument is that the principles of procedural fairness have been violated. Mr. Kamel further contends that sections 4 and 10.1 of the Order and the decision in issue are an unjustifiable infringement of the rights guaranteed by sections 6, 7 and 15 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act (U.K.), 1982, c. 11 (the Charter).
[3] The Court finds that in this case the principles of procedural fairness were violated in the investigation that led to the Minister’s decision. The court also finds that the passport is essential to the exercise of the mobility rights guaranteed by section 6 of the Charter and that section 1 can be of no assistance, given that section 10.1 of the Order is not a law. Accordingly, there has been an infringement of the rights guaranteed by section 6 of the Charter. Section 10.1 of the Order is therefore declared to be invalid and the Minister’s decision is set aside. The Court gives the Governor in Council six months to rewrite section 10.1 of the Order. The request for a decision to issue a passport to be made in the place and stead of the Minister is denied.
[4] To assist in doing the analysis that led to the conclusions stated above, I have adopted the following outline:
- Relevant legislation, page 4;
- Selected facts relevant to this application, page 9;
- The Canadian passport: a brief history, page 17;
- Terrorism and use of the passport, page 20;
- Issues, page 24;
- Does the Court have jurisdiction to review an order made pursuant to the royal prerogative in an application for judicial review of a ministerial decision? page 26;
- What is the appropriate standard of review for a decision made under section 10.1 of the Order? page 31;
- Were the principles of procedural fairness violated in the administrative investigation carried out by the Canadian Passport Office (CPO) in response to Mr. Kamel’s passport application and, if so, having regard to the applicable standard of judicial review, is intervention by this Court warranted? page 33;
- Do sections 4 and 10.1 of the Order infringe the rights associated with the mobility rights guaranteed by subsection 6(1) of the Charter? page 43;
- Is the infringement of subsection 6(1) of the Charter justified under section 1 of the Charter? page 53;
- Do sections 4 and 10.1 of the Order infringe the rights set out in sections 7 and 15 of the Charter and, if so, is the infringement justified under section 1? page 61;
- Should an order be made compelling the Minister to issue a passport to Mr. Kamel? page 65;
- Conclusions, page 67;
- Costs, page 68;
- Judgment, page 70;
- Report to the Minister by the CPO, page 72; and
- Letter from Ms. Thomas to Mr. Kamel dated December 14, 2005, page 82.
II. Relevant Legislation
[5] Sections 9 and 10 of the Order set out the requirements for issuance and revocation of a passport:
REFUSAL OF PASSPORTS AND REVOCATION
9. Passport Canada may refuse to issue a passport to an applicant who
(a) fails to provide the Passport Office with a duly completed application for a passport or with the information and material that is required or requested
(i) in the application for a passport, or
(ii) pursuant to section 8;
(b) stands charged in Canada with the commission of an indictable offence;
(c) stands charged outside Canada with the commission of any offence that would, if committed in Canada, constitute an indictable offence;
(d) is subject to a term of imprisonment in Canada or is forbidden to leave Canada or the territorial jurisdiction of a Canadian court by conditions imposed with respect to
(i) any temporary absence, work release, parole, statutory release or other similar regime of absence or release from a penitentiary or prison or any other place of confinement granted under the Corrections and Conditional Release Act, the Prisons and Reformatories Act or any law made in Canada that contains similar release provisions,
(ii) any alternative measures, judicial interim release, release from custody, conditional sentence order or probation order granted under the Criminal Code or any law made in Canada that contains similar release provisions, or
(iii) any absence without escort from a penitentiary or prison granted under any law made in Canada;
(d.1) is subject to a term of imprisonment outside Canada or is forbidden to leave a foreign state or the territorial jurisdiction of a foreign court by conditions imposed with respect to any custodial release provisions that are comparable to those set out in subparagraphs (d)(i) to (iii);
(e) has been convicted of an offence under section 57 of the Criminal Code or has been convicted in a foreign state of an offence that would, if committed in Canada, constitute an offence under section 57 of the Criminal Code;
(f) is indebted to the Crown for expenses related to repatriation to Canada or for other consular financial assistance provided abroad at his request by the Government of Canada; or
(g) has been issued a passport that has not expired and has not been revoked.
REFUSAL OF PASSPORTS AND REVOCATION
10. (1) Passport Canada may revoke a passport on the same grounds on which it may refuse to issue a passport.
(2) In addition, Passport Canada may revoke the passport of a person who
(a) being outside Canada, stands charged in a foreign country or state with the commission of any offence that would constitute an indictable offence if committed in Canada;
(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;
(c) permits another person to use the passport;
(d) has obtained the passport by means of false or misleading information; or
(e) has ceased to be a Canadian citizen.
REFUS DE DÉLIVRANCE ET RÉVOCATION
9. Passeport Canada peut refuser de délivrer un passeport au requérant qui :
a) ne lui présente pas une demande de passeport dûment remplie ou ne lui fournit pas les renseignements et les documents exigés ou demandés
(i) dans la demande de passeport, ou
(ii) selon l'article 8;
b) est accusé au Canada d'un acte criminel;
c) est accusé dans un pays étranger d'avoir commis une infraction qui constituerait un acte criminel si elle était commise au Canada;
d) est assujetti à une peine d’emprisonnement au Canada ou est frappé d’une interdiction de quitter le Canada ou le ressort d’un tribunal canadien selon les conditions imposées :
(i) à l’égard d’une permission de sortir, d’un placement à l’extérieur, d’une libération conditionnelle ou d’office, ou à l’égard de tout régime similaire d’absences ou de permissions, d’un pénitencier, d’une prison ou de tout autre lieu de détention, accordés sous le régime de la Loi sur le système correctionnel et la mise en liberté sous condition, de la Loi sur les prisons et les maisons de correction ou de toute loi édictée au Canada prévoyant des mesures semblables de mise en liberté,
(ii) à l’égard de toutes mesures de rechange, d’une mise en liberté provisoire par voie judiciaire, d’une mise en liberté ou à l’égard d’une ordonnance de sursis ou de probation établie sous le régime du Code criminel ou de toute loi édictée au Canada prévoyant des mesures semblables de mise en liberté,
(iii) dans le cadre d’une permission de sortir sans escorte d’une prison ou d’un pénitencier accordée en vertu de toute loi édictée au Canada;
d.1) est assujetti à une peine d’emprisonnement à l’étranger ou est frappé d’une interdiction de quitter un pays étranger ou le ressort d’un tribunal étranger selon les conditions imposées dans le cadre de dispositions privatives de liberté comparables à celles énumérées aux sous-alinéas d)(i) à (iii);
e) a été déclaré coupable d’une infraction prévue à l’article 57 du Code criminel ou, à l’étranger, d’une infraction qui constituerait une telle infraction si elle avait été commise au Canada;
f) est redevable envers la Couronne par suite des dépenses engagées en vue de son rapatriement au Canada ou d'une autre assistance financière consulaire qu'il a demandée et que le gouvernement du Canada lui a fournie à l'étranger; ou
g) détient un passeport qui n'est pas expiré et n'a pas été révoqué.
REFUS DE DÉLIVRANCE ET RÉVOCATION
10. (1) Passeport Canada peut révoquer un passeport pour les mêmes motifs que le refus d’en délivrer un.
(2) Il peut en outre révoquer le passeport de la personne qui :
a) étant en dehors du Canada, est accusée dans un pays ou un État étranger d'avoir commis une infraction qui constituerait un acte criminel si elle était commise au Canada;
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;
c) permet à une autre personne de se servir du passeport;
d) a obtenu le passeport au moyen de renseignements faux ou trompeurs;
e) n'est plus citoyen canadien.
[6] Section 10.1 of the Order provides:
Canadian Passport Order
REFUSAL OF PASSPORTS AND REVOCATION
10.1 Without limiting the generality of subsections 4(3) and (4) and for greater certainty, the Minister may refuse or revoke a passport if the Minister is of the opinion that such action is necessary for the national security of Canada or another country.
Décret sur les passeports canadiens
REFUS DE DÉLIVRANCE ET RÉVOCATION
10.1 Sans que soit limitée la généralité des paragraphes 4(3) et (4), il est entendu que le ministre peut refuser de délivrer un passeport ou en révoquer un s'il est d'avis que cela est nécessaire pour la sécurité nationale du Canada ou d'un autre pays.
[7] Subsections 4(3) and (4) deal with the royal prerogative in respect of passports. They provide:
ISSUANCE OF PASSPORTS
4. [. . .]
(3) Nothing in this Order in any manner limits or affects Her Majesty in right of Canada's royal prerogative over passports.
(4) The royal prerogative over passports can be exercised by the Governor in Council or the Minister on behalf of Her Majesty in right of Canada.
DÉLIVRANCE DES PASSEPORTS
4. [. . .]
(3) Le présent décret n'a pas pour effet de limiter, de quelque manière, la prérogative royale que possède Sa Majesté du chef du Canada en matière de passeport.
(4) La prérogative royale en matière de passeport peut être exercée par le gouverneur en conseil ou le ministre au nom de Sa Majesté du chef du Canada.
III. Selected Facts Relevant to this Application
[8] Mr. Kamel was born in Algeria in 1960. He immigrated to Canada in 1988 and obtained Canadian citizenship on January 27, 1993.
[9] On January 29, 1993, he applied for and was issued a Canadian passport, valid until January 1998. In October 1995, Mr. Kamel informed the authorities that it had been stolen and another passport was issued to him, that one valid until November 10, 2000. In July 1997, he again applied for a passport because he had found the passport that was stolen in 1995. On the condition that he return the “stolen” passport, which he did, the CPO issued him a new passport, valid until July 2002. That passport was not recovered when Mr. Kamel was arrested in May 1999, and a passport was issued by the CPO that vas valid only for one trip, on January 29, 2005, to enable him to return to Canada after being incarcerated in France for four years.
[10] In addition, Mr. Kamel is not certain that he still holds Algerian citizenship. He says that in 1996 he applied for and obtained an Algerian passport at the Algerian Consulate in Montréal. Within a week after the passport was issued, the Consulate contacted him to have him reattend with his Algerian documents, which he did. At that interview, he was told that the passport had been issued in error and the Algerian passport was taken back, along with his national identity card.
[11] In May 1999, the applicant was arrested in Jordan and extradited to France. He retained a lawyer who had 30 years’ experience in similar cases, Mourat Oussedik, who was assisted by Mr. Panier. On April 6, 2001, after a trial lasting several days and involving more than 20 accused, Mr. Kamel was found guilty by the Tribunal de Grande instance de Paris. In a 133-page judgment that related to each of the 24 accused, all of whom were tried on the same charges, of membership in a criminal organization for the purpose of preparing a terrorist act and complicity in forging an administrative document (passport), the court:
[TRANSLATION] FINDS Fateh Kamel guilty of membership in a criminal organization for the purpose of preparing a terrorist act (acts committed between 1996 and 1998, in Roubaix (Nord) and in French territory and also in Canada, Turkey, Bosnia, Belgium and Italy), complicity in forging an administrative document attesting to a right, identity or status (acts committed during 1996, in Roubaix (Nord) and in French territory and also in Canada, Turkey, Bosnia and Belgium) and complicity in uttering a forged administrative document attesting to a right, identity or status (acts committed during 1996, in Roubaix (Nord) and in French territory and also in Canada, Turkey, Bosnia and Belgium).
With the circumstance that the offence set out above was primarily in relation to or was connected with an individual or collective enterprise having as its purpose to cause a serious disturbance of public order by intimidation or terror.
Sentences him to a term of imprisonment for 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 excluded from France.
(Excerpt of the judgment of the Tribunal de Grande instance de Paris dated April 6, 2001, at page 128).
[12] Mr. Kamel was described as the [TRANSLATION] “… principal organizer of international networks determined to prepare attacks and procure weapons and passports for terrorists acting throughout the world”. He received the harshest sentence of all the accused, imprisonment for eight years and permanent exclusion from France.
[13] Mr. Kamel was released after serving half his sentence and returned to Montréal, his place of residence in Canada, on January 29, 2005, with a special passport issued by the CPO as an exceptional case.
[14] On June 13, 2005, Mr. Kamel again applied for a passport, at the CPO in Montréal, because he planned to go to Thailand on June 25, 2005, to conduct import business with the assistance of a member of his family. However, in a telephone conversation with Michel Leduc (Mr. Leduc), the Acting Director General of the Security Bureau of the CPO, on June 22, 2005, the applicant informed Mr. Leduc that his travel plans had changed for personal reasons. In that conversation, Mr. Leduc informed the applicant that his file was being reviewed and that the passport would not be available in the immediate future. He was invited to submit comments or questions.
[15] On August 5, 2005, Mr. Leduc wrote to Mr. Kamel informing him that his eligibility for a passport was the subject of an administrative investigation because of the judgment of the Tribunal de Grande instance de Paris on April 6, 2001. The purpose of the investigation was to determine whether the applicant could be denied a passport under sections 9, 10 and 10.1 of the Order. In that regard, the applicant was invited to submit certain information within 30 days, which would be taken into consideration when it was received.
[16] On August 18, 2005, Mr. Kamel replied as follows:
[TRANSLATION] This is to confirm that I have received your letter dated August 5 concerning my file, Reference A-9540.
I would like to know what document should be added to my file to meet the information needed for obtaining my Passport.
I am aware of the precautions your services wish to take and I would like to satisfy them to clarify the file regarding my passport, which has never been used in any offence whatsoever.
The judgment made against me in France on April 6, 2001, delivered against me by the Tribunal de grande instance de Paris, was never able to determine my role in any fraud whatsoever. I am therefore available to investigators in your services to answer all your supplementary questions in the above-mentioned file …
I hope that this will be satisfactory and I am entirely at your disposal for further information. (Emphasis added.)
[17] In the course of its administrative investigation, the CPO collected various press articles, the judgment of the French authorities relating to Mr. Kamel, the case law and an eight-page “protected” summary relating to Mr. Kamel from the Counter-terrorism section of the Canadian Security Intelligence Service (CSIS) dated August 15, 2005.
[18] Briefly, the summary, which is based on publicly available information, is strongly incriminating in relation to Mr. Kamel. According to CSIS, he played a key role in European terrorist cells, and also under the direction of leaders in Bosnia and Afghanistan, and he had ties to the Algerian Groupe islamique armée (the GIA). In Canada, he met with North Africans and Muslims to arrange for them to be sent to Afghanistan and Bosnia, using an import-export business as “cover”. The summary also refers to the French judgment to show the charges on which he was convicted. It adds that he was trained in a camp or camps in Afghanistan in 1991; that he travelled frequently in order to traffic in forged passports and to maintain “his terrorist networks”; and that he had personally seem combat, having fought “shoulder to shoulder with a number of colleagues”. His recruiting activities in Montréal are described, and it says that the primary activity of Mr. Kamel and his group was to engage in multiple thefts of money, credit cards and passports and traffic in the identity documents in order to support the Jihad.
[19] This summary was not disclosed to Mr. Kamel before the CPO made its recommendation to the Minister and he made his decision. 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.
[20] On October 28, 2005, Ms. Thomas wrote to Mr. Kamel on behalf of the CPO and informed him that the investigation was continuing, that he had been convicted in France of a terrorism-related offence and passport fraud for the purposes of terrorist activities, and that the history of his case showed that he had had his passport replaced several times. The letter states that the CPO might recommend that the Minister refuse to issue the passport to him, relying on section 10.1 of the Order. The letter concludes by inviting him to submit any additional information that he considers to be relevant within 30 days.
[21] On November 9, 2005, Mr. Kamel sent the following letter:
[TRANSLATION] This is in relation to your letter of October 28, 2005. I realize that the passport branch is continuing to consider my case for issuing my passport. In fact, I was charged by the French authorities with terrorism and passport fraud, charges for which there is no basis and no evidence, and no testimony against me, unfortunately being of Algerian origin I was easily classified and convicted …
At no time in my life have I committed fraud or used a passport that did not belong to me in my travel, or used any documents whatsoever, including for so-called terrorist activities, nor have I played any role in any alleged document frauds as the French police alleged, with no evidence whatsoever.
On the question of my Canadian passport history, my passport was in fact replaced on two occasions at my request, for the following reasons: as a result of a burglary at my home, 979 Rockland, Outremont, Que. I immediately called the police and reported all the missing property, including my Canadian passport. Shortly afterwards I found it and I went to the passport office to inform them and return it to them.
Because a passport had been issued to me to replace the first one reported stolen, with a notation on it that this passport replaced the stolen passport, the passport office employee recommended that they keep both and issue me a proper and normal one with no notations on it so that I could travel without problems, because the stolen passport replacement notation would cause me unnecessary complications.
I can assure you that I have never represented any threat to national or international security, and I am convinced that the Canadian authorities would never have admitted me to Canada to join my wife and child if that had been the case.
I need my passport to travel and work and see my family, whom I have not seen for over 16 years …
I therefore ask that you consider this information and add it to my file so that the Minister can issue my passport as speedily as possible, please.
(Emphasis added – given the nature of what the applicant wrote, I have reproduced it in its original form)
[22] On or about November 22, 2005, the CPO sent the Minister a report in which it recommended that Mr. Kamel be denied the passport. The cover memorandum classified the information as “secret”. Given the importance of the report for the purposes of the Minister’s decision, a copy is attached to these reasons as Appendix “1”.
[23] It contains information about Mr. Kamel’s background, facts found in the judgment of the French authorities and about the process for replacing valid passports, the Minister’s powers and references to definitions in legislation and international conventions, and the first page sets out the recommendation of the CPO, the Associate Deputy Minister and the Deputy Minister that a passport not be issued to Mr. Kamel. The document includes the two letters from Mr. Kamel dated August 18 and November 9, 2005, but the CSIS summary concerning Mr. Kamel dated August 15, 2005, is not included; this is all subject to the comment set out in paragraph 19 of these reasons. On December 1, 2005, the Minister accepted the recommendation that a passport not be issued to Mr. Kamel.
[24] On December 14, 2005, Ms. Thomas informed Mr. Kamel that the CPO had recommended that the Minister not issue him a passport, and that the Minister had accepted that recommendation under section 10.1 of the Order. Appendix “2” to these reasons contains a copy of the letter. At the end of the letter, he is invited to submit any additional information that might justify a new recommendation to the Minister. It is that letter that is the subject of this application for judicial review.
A. The Canadian Passport: A Brief History
[25] The source of the law governing the Canadian passport is the royal prerogative, which comes to us from English law. The royal prerogative is exercised today by the Governor in Council, and takes the form of an Order (or décret, in French). The passport is therefore not the subject of any legislation but is governed by an Order, made by the executive.
[26] On May 13, 1893, the English Privy Council authorized the Government of Canada, by order, to issue Canadian passports modeled on the English passport. On June 21, 1909, the Privy Council, by order, transferred the administration of Canadian affairs and the issuance of passports from the Department of the Secretary of State to the Department of External Affairs.
[27] On January 9, 1973, on the advice of the Secretary of State for External Affairs, the Governor in Council made the Canadian Passport Regulations, establishing the new rules governing applications for Canadian passports. On June 4, 1981, the Governor in Council amended the title of that instrument to the Canadian Passport Order, in which the administrative procedures relating to passports were laid out. It provides that the CPO is the administrative branch of the Department of Foreign Affairs that has been charged with the issuing, revoking, withholding, recovery and use of passports, under the direction of the Minister.
[28] The Order was amended on December 10, 2001: it became mandatory that a child under 16 years of age be issued an individual passport (before that, the child could be entered on the passport of one of the parents); in addition, birth certificates issued by religious, judicial or municipal authorities before the Civil Code of Québec, S.Q. 1991, c. 64, came into force, on January 1, 1994, were no longer accepted as proof of citizenship.
[29] It was not until September 1, 2004, that the Governor in Council, by order, on the recommendation of the Minister of Foreign Affairs, amended the Canadian Passport Order to add subsections 4(3) and (4) and section 10.1. The explanatory notes make reference to the Minister’s authority to refuse or revoke a passport in the interest of the national security of Canada or another country, and state that the security of Canada and foreign countries is a priority of the government in its fight against transnational crime and terrorism.
[30] The priority given to this is illustrated by the government’s continuing support for various international organizations, such as the United Nations, the G8 and the International Civil Aviation Organization (ICAO) in their determination to combat threats to national security. The notes point out that subsections 4(3) and (4) specify that the Order does not abolish the Crown prerogative over passports or limit any discretionary authority of Her Majesty over passports, in respect of her power to refuse or revoke a passport on grounds other than national security (see sections 9 and 10 of the Order).
[31] Section 2 of the Order defines the word “passport” as follows:
INTERPRETATION
2. In this Order, “Act” means the Citizenship Act; (Loi)
. . .
“passport”means an official Canadian document that shows the identity and nationality of a person for the purpose of facilitating travel by that person outside Canada; (passeport)
. . .
DÉFINITIONS
2. Dans le présent décret,
. . .
« passeport » désigne un document officiel canadien qui établit l'identité et la nationalité d'une personne afin de faciliter les déplacements de cette personne hors du Canada; (passport) . . .
A passport has two purposes: it identifies a Canadian citizen and facilitates travel by a Canadian citizen.
[32] The Minister alone may revoke or refuse a passport for a Canadian citizen, on the grounds of national security or the security of another country. That authority may not be delegated.
[33] The Order, and the passport itself, clearly state that a passport remains the property of Her Majesty in right of Canada at all times (see paragraph 3(c) of the Order).
ISSUANCE OF PASSPORTS
3. Every passport
. . .
(c) shall at all times remain the property of Her Majesty in right of Canada;
DÉLIVRANCE DES PASSEPORTS
3. Chaque passeport
. . .
c) demeure en tout temps la propriété de Sa Majesté du chef du Canada;
[34] On the first page of a passport, the Minister of Foreign Affairs, on behalf of Canada, “requests” the countries where a Canadian citizen may be to allow him or her to pass freely and to afford such assistance and protection as may be necessary. A passport specifies that it is valid for all countries, unless otherwise indicated, and adds that the bearer must also comply with the formalities for entry to those countries where he or she intends to travel. A passport also attests that the bearer is a Canadian citizen.
B. Terrorism and Use of the Passport
[35] The affidavit of Professor Emeritus Martin Rudner provides an objective, detailed description of terrorism today; among other things, he cites the fraudulent use of passports for hostile purposes. In his account, he explains the geopolitical context in which Canada finds itself. Professor Rudner was not cross-examined. The Minister did not have that expert opinion when he made his decision. I will summarize part of his testimony in the paragraphs that follow.
[36] Canada’s response to international terrorism is set out in the policy statement issued by the government in April 2004, entitled “Securing an Open Society: Canada’s National Security Policy” (the 2004 Canadian policy statement). The policy is a strategic framework and action plan designed to ensure that the government can respond to current and future threats. It focuses on addressing three core security interests:
1. Protecting Canada and Canadians at home and abroad;
2. Ensuring Canada is not a base for threats to our allies; and
3. Contributing to international security.
(We will see Canada’s international commitments in this regard later.)
[37] As a reflection of the Canadian government’s concern for border security, it will “deploy facial recognition biometric technology on the Canadian passport, in accordance with international standards” (again, we will see that Canada has signed an international agreement in this regard). Having stated the objective of protecting Canada and Canadians at home and abroad, the policy statement says: “The Government also has an obligation to offer assistance to Canadians working or travelling abroad.”
[38] To provide for border security, the 2004 Canadian policy statement requires that Canadian passports use biometric facial recognition technology (digitized photograph). The international community is increasingly using this new technology to facilitate the flow of low-risk travellers and interrupt the flow of high-risk travellers. It was announced in May 2003 that under an agreement among participating ICAO countries, facial recognition would be the international biometric standard for travel documents. Since 2005, Canada has used this sophisticated technology for Canadian passports.
[39] The April 2004 Canadian policy statement explains that four key types of terrorism affect Canada:
- religious extremism;
- violent secessionist movements;
- state-sponsored terrorism; and
- domestic extremism.
It also notes that terrorism is global and calls for international collaboration to control or prevent it.
[40] Terrorist groups must be able to obtain passports in order to carry on their activities. They devote time and money to obtaining passports. They do this by stealing genuine passports and by borrowing, renting or purchasing passports. They also make forged passports. Those passports are as important to them as weapons are. They use them to travel abroad under false names, or otherwise, so as not to be detected at borders. Members of these groups must necessarily operate clandestinely. Passports enable them to travel without disclosing their real identities, so that they can organize, receive training, plan or identify objectives and put their plans into action. According to Professor Rudner, there is intense passport trafficking activity in Thailand.
[41] For Canada, it is essential that Canadian passports be managed in such a way as not to give the international community the impression that Canadian passports are easy for anyone to obtain and so that a passport is not given to people with dubious reputations. This is in Canada’s interests. Otherwise, the international community will not have the necessary confidence in Canadian passports, and Canadian citizens will suffer the consequences when they travel outside the country. Canadians might be subject to questioning or preventive detention in other countries, or even to arrest until the authorities of the country where they are recognize that their travel documents are genuine. When dealing with passports, there are stringent standards approaching perfection that must be adhered to, in order to meet international requirements and thus ensure the unreserved confidence of the international community.
[42] In April 2005, Prime Minister Paul Martin signed “Canada’s International Policy Statement” (April 2005 international policy statement), which explained Canada’s international goals in the world and reiterated the government’s firm commitment to combating terrorism and protecting national and international security.
[43] Canada has signed United Nations conventions providing for ways of combating terrorism, and adheres to numerous Security Council resolutions on this subject. Some of those resolutions (1624 (2005)) call on states to cooperate to strengthen international borders, combat fraudulent travel documents and enhance terrorist screening. The Security Council (Resolution 1617 (2005)) welcomed the efforts of the ICAO to prevent travel documents being made available to terrorists, and has recognized its success in promoting biometric facial recognition capacity. Canada has also signed conventions and agreements among the countries of the Americas that are intended to strengthen border security and improve communications among those countries. In short, the 2004 and 2005 Canadian policy statements meet Canada’s international commitments and reflect the measures that have been taken to honour those commitments.
[44] Before identifying the issues and making the findings that are required, it must be noted that the problem in this case is an important one involving the royal prerogative enjoyed by the Governor in Council, Canada’s international commitments, concerns associated with national and international security, the principles of procedural fairness, and certain Charter rights enjoyed by Canadian citizens, including the applicant.
IV. Issues
[45] A number of questions have been put to the Court in this case, but, as we shall see, not all of them need to be answered in order to dispose of the application.
[46] The applicant served a notice of constitutional questions on the attorneys general of Canada and the provinces under section 57 of the Federal Courts Act, R.S.C. 1985, c. F-7, am. S.C. 2002, c. 8, s. 57 (Federal Courts Act). The questions are as follows:
[TRANSLATION]
1. Does the Court have jurisdiction to review an order made pursuant to the royal prerogative in an application for judicial review of a ministerial decision?
2. What is the appropriate standard of review for a decision made under section 10.1 of the Order?
3. Were the principles of procedural fairness violated in the administrative investigation carried out by the CPO in response to Mr. Kamel’s passport application and, if so, having regard to the applicable standard of judicial review, is the intervention of this Court warranted?
4. Do sections 4 and 10.1 of the Order infringe the rights associated with the mobility rights guaranteed by subsection 6(1) of the Charter?
5. Is the infringement of subsection 6(1) of the Charter justified under section 1 of the Charter?
6. Do sections 4 and 10.1 of the Order infringe the rights set out in sections 7 and 15 of the Charter and, if so, is the infringement justified under section 1?
7. Should an order be made compelling the Minister to issue a passport to Mr. Kamel?
1. Does the Court have jurisdiction to review an order made under the royal prerogative in an application for judicial review of a ministerial decision?
[47] Although the parties did not raise this point in their written submissions or in oral argument, I think it wise to do so.
[48] Section 2 of the Federal Courts Act defines “federal board, commission or other tribunal” as follows:
INTERPRETATION
Definitions
2. (1) In this Act,
“federal board, commission or other tribunal”
“office fédéral”
“federal board, commission or other tribunal” means any body, person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made pursuant to a prerogative of the Crown, other than . . . . (Emphasis added)
DÉFINITIONS
Définitions
2. (1) Les définitions qui suivent s’appliquent à la présente loi.
« office fédéral » Conseil, bureau, commission ou autre organisme, ou personne ou groupe de personnes, ayant, exerçant ou censé exercer une compétence ou des pouvoirs prévus par une loi fédérale ou par une ordonnance prise en vertu d'une prérogative royale, à l'exclusion de . . . .
[49] The subject of this application for judicial review is the Minister’s decision, under section 10.1 of the Canadian Passport Order, not to issue a passport to Mr. Kamel, the source of that Order being the royal prerogative. For the same reasons as those cited by my colleague Mr. Justice Michael Phelan in Khadr v. Canada (Attorney General), [2006] F.C.J. No. 888 (Khadr), at paragraph 42, I find that the Minister’s decision is an “order” denying a passport. It is final and not subject to appeal. It is binding on the passport applicant, subject to the application for judicial review he has made.
[50] So that we can understand the royal prerogative clearly, I will quote the comments made by Mr. Justice Andrew MacKay (formerly of this Court) in Vancouver Island Peace Society v. Canada (T.D.), [1994] 1 F.C. 102, at paragraph 4, which I adopt in their entirety:
The royal prerogative is comprised of the residue of miscellaneous powers, rights, privileges, immunities and duties accepted under our law as vested in Her Majesty and under our Constitution exercised by the Governor in Council acting on advice of Ministers. Orders in Council may express the decisions of the Governor in Council in relation to matters within the discretionary authority of prerogative powers. Traditionally the courts have recognized that within the ambit of these powers the Governor in Council may act in relation to matters concerning the conduct of international affairs including the making of treaties, and the conduct of measures concerning national defence and security. The prerogative power is, of course, subject to the doctrine of parliamentary supremacy and Parliament, by statute, may withdraw or regulate the exercise of the prerogative power.
[51] As we saw earlier, regulation of passports has always been determined by the Governor in Council or one of her Ministers, and Parliament has at no time played a role in this respect. In this case, the applicant has not challenged that authority; rather, he asserts Charter violations. For that reason, this legal analysis will deal with section 10.1 of the Order, and not section 4.
[52] There was a time when the royal prerogative, and the exercise of that prerogative, was not open to review by the courts. The maxim was: “The King can do no wrong” (or, in French, “le roi ne peut faire aucun mal”); accordingly, the validity of acts or decisions deriving from the royal prerogative could not be challenged. As time passed and the laws changed, judicial review of the royal prerogative and decisions stemming from it have come to be possible.
[53] An example is found in the decision of the Appeal Division of the Supreme Court of South Africa in Sachs v. Donges N.O., 1950 (2) SA 265 (A), per the Chief Justice, writing for the majority, in which the Court set aside a decision by the Witwatersrand Local Division finding that revocation of a passport was an executive decision based on the royal prerogative and accordingly a cour