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Adjudication of security files
Table of contents
- Opening remarks
- Introduction
- Investigation procedure (for files other than those related to national security)
- Adjudication/decision making process
- Objective and Subjective Tests in the exercise of the dicretionary authorities
- Number and types of decisions
- Comparative overview of decisions
- Length of suspension of passport services
- Backgrounders
- Supporting documents
Opening remarks
This section provides an overview of the adjudication of security files. This information was also set out in the Ombudsman's annual report but it seemed appropriate to separate the information regarding the Ombudsman from that concerning the Adjudicator, as the two functions are quite distinct, even though they report to the same authority.
We hope interested parties will be adequately informed about the processes leading to the consideration of recommendations for revocation, refusal or suspension of passport services. Please note this applies to files other than those involving national security, for which there is a separate procedure.
Introduction
In compliance with the rules of natural justice and procedural fairness, the Security bureau forwards recommendations to refuse or revoke a passport to another Bureau, the Adjudication and Conflict Management Office (ACMO). This Bureau has an adjudication component whose role is to make decisions on the applicability of the grounds for revoking or refusing passport services set in the Canadian Passport Order, in files other than those related to national security (section 10.1 of the Order).
Investigation procedure (for files other than those related to national security)
The Security, Policy and Entitlement Branch of Passport Canada underwent reorganization in 2005-06. A Security bureau was created. It remains an investigative body identified in the Privacy Act. This bureau, which includes the Security Operations Division, gathers facts and determines whether those facts seem consistent with the conditions for refusing or revoking a passport. If this is the case, a letter of proposal which states the allegations is sent to the subject. Subjects are given the opportunity to present a defence and respond to the bureau's allegations.
The bureau considers the information received from the subjects or their counsel. After considering this information, it may authorize the issuance of a full validity passport or a passport for a limited period of time and containing certain conditions. Alternatively, if the Security bureau considers that the information seems to support a conclusion that grounds for refusal or revocation apply, it can recommend that an Adjudicator, acting on behalf of Passport Canada, makes an entitlement adjudication decision. The adjudication function is located within ACMO. This ensures that the adjudicator makes decisions in a neutral and impartial manner because he is not part of the Security Bureau who carries out the investigations. Passport applicants’ representations for final decision.
Before the creation of ACMO, that role felt by default to the Director of the Security Bureau. In that situation, the incumbent of that position was accountable simultaneously for the investigation work done by the Bureau and the final decision imposed on the passport applicant or holder. In other words, the Director was both judge and party. It was for this reason that the adjudication function of ACMO was developed.
Adjudication/Decision making process
The Adjudicator decides on the matter based on the written submissions of the subjects. Acting as a neutral, impartial decision maker, the Adjudicator ensures compliance with the rules of natural justice. It is the Adjudicator's responsibility to ensure that the allegations have been described in sufficient detail to enable the subject to produce a full answer and defence.
In deciding on the merits, the Adjudicator considers the whole file and delivers an entitlement adjudication decision in writing supporting, in whole or in part, or rejecting the recommendations of the Security bureau. Where the recommendations of the bureau are maintained, the Adjudicator also makes a decision on the length of suspension of the applicable services. decisions by the Adjudicator are considered final from the date of receipt by the persons to whom they are sent, that is, the subjects of the investigations or their counsel.
The latter may challenge the decision by filing an application for judicial review before the Federal Court of Canada within thirty (30) days of receiving the said decision.
The Adjudicator may on occasion be called on to decide on a request for interim service on urgent compelling compassionate grounds pending completion of the investigation of the issue in the main file. The Security bureau may authorize such service without submitting the matter to the Adjudicator, but a refusal to provide such service must be confirmed by the Adjudicator.
Investigation files of the Security bureau cannot be the subject of a complaint to the Ombudsman. Once an active security file is confirmed, the Ombudsman refuses jurisdiction in order to preserve its impartiality as Adjudicator.
Objective and Subjective Tests in the exercise of the discretionary authority
The Adjudicator systematically applies an objective test (i.e., determining whether there is objective presence of grounds for refusal or revocation as established in the Order). Objectively, when criminal charges are layed, a guilty plea entered or a guilty verdict reached, there are grounds for revocation or refusal. But since this is a discretionary authority, a subjective test must also be applied in such files. Based on the experience of adjudicators' decisions, we have established that not all criminal offences necessarily have to translate into suspension of passport services.
Next, for files where subjects stand charged (as opposed to files where a criminal conviction was obtained), certain criteria have to be established to prevent the Adjudicator, and by extension the Agency since the Adjudicator makes an entitlement adjudication decision on its behalf, from replacing the Crown, which has the burden of determining the risk of the accused fleeing the jurisdiction of the court. In the absence of restrictions on mobility, we consider it unreasonable for Passport Canada to make a rise assessment normally performed by third parties such as law enforcement agencies and create a de facto restrictive condition that the Crown could seek from the courts. The Crown in fact has every freedom, at the stage of indictment and setting of preliminary conditions of release, to seek restrictions on mobility.
However, in cases where charges were laid for serious crimes, if discretionary authorities were specified in the operational guidelines or rules of procedure, the situation would be clearer for everyone. Finally, when charges call into question facts which directly underlie the use of a passport in the commission of the offence, the Agency has full authority to conduct its administrative investigation, which is distinct from the criminal process, and to invoke the facts in support of a recommendation for revocation/refusal and suspension of passport services. At that point, the Agency is no longer basing itself simply on the laying of criminal charges, but is satisfied that specific acts were committed by the subject, acts which objectively constitute grounds for revocation/refusal and suspension of the passport.
Number and types of decisions
| Adjudication decisions by Year | |
|---|---|
| 2009-10 | 70 |
| 2008-09 | 46 |
| 2007-08 | 68 |
| 2006-07 | 42 |
| 2005-06 | 11 |
| 2004-05 | 8 |
| 2003-04 | 17 |
| 2002-03 | 34 |
| 2001-02 | 20 |
| 2000-01 and prior | 89 |
In keeping with the process described above, the Adjudicator renders three types of decisions:
- Adjudication decision letters
- on recommendations for revocation or refusal of passport services, with recommendations for suspension of passport services for a certain period of time.
- Interim decisions
- based on the rule of Procedure under which the Adjudicator may, before rendering a decision, ask the Security bureau or the party for any additional information or documentation he/she deems necessary in rendering the decision;
- upon petition for limited validity passport services on compassionate grounds rejected by the Security bureau
- during the bureau's investigation and before an adjudication decision letter is issued, or
- when the exceptional circumstance for compassionate grounds arises after an adjudication decision letter is issued.
- Review decisions on the simplified process of revocation / refusal of service
- certain types of revocation / refusal of service may be imposed by Passport Canada without adjudication. For example, individuals on parole subject to mobility restrictions would clearly be ineligible for passport services. In files where an administrative decision is challenged, the bureau or the subject may ask the Adjudicator to review it.
The following chart outlines the two previous fiscal years, the most significant in terms of the number and types of decisions.
| 2007-08 | 2008-09 | |
|---|---|---|
| Adjudication decision letters | 61 note 1 | 41 note 3 |
| Interim decisions | 6 note 2 | 4 note 4 |
| Review decisions | 0 | 1 |
| Note 1: | 59 decisions allowed the recommendations in whole or in part; 2 decisions disallowed them, since the evidence was not preponderant in terms of the subject's involvement in the alleged acts. |
| Note 2: | one petition out of three for limited validity passport services on compassionate grounds was allowed by the Adjudicator; refusal by the Security bureau in the two other files was maintained. Three interim decisions were rendered requiring the bureau and the subject to exchange more substantial information to respond to the allegations. |
| Note 3: | 39 decisions allowed the recommendations in whole or in part; 2 decisions disallowed them, owed to the CPO ground authority not being applicable in one file, and to the absence of preponderance of the evidence with regard to the other. |
| Note 4: | three refusals for limited validity passports for urgent compelling compassionate circumstances were maintained by the Adjudicator. One interim decision under 28(6) of the rules of procedure established delays for the bureau and the subject to commit to produce final representations in the file to adjudicate. |
Adjudication decision letters allowing in whole or in part recommendations to suspend passport services determine the duration of this suspension which takes into account both the mitigating and the aggravating factors of each case.
Comparative overview of decisions
The following table continues to be updated annually. It shows certain patterns in the type of incident that is the subject of recommendations for revocation or suspension of passport services. We have grouped the incidents under seven different headings. We shall report for each of these groups files of public interest (precedents established in entitlement adjudication decision).
- Assistance to imposters consists in giving support to persons holding travel
documents which generally belong to members of the immediate family. The person
acts as a smuggler or escort to a third person who often uses the unaltered document
of the person related to the smuggler.
[ref. 10399 August 10, 2007] Escort imposters in possession of altered passports issued originally to immediate members of his family - Interception abroad - Revocation of passport under paragraph 10(2)(b) of the Canadian Passport Order (CPO) and on additional grounds under 10(1) combined with 9(d)(ii) CPO, maintained on the two grounds - Five-year suspension of passport services - Start date for calculating five-year period the latest of three applicable scenarios - Statement of passport loss by subject would not benefit him.
The facts are not being challenged. The evidence is credible and detailed. The formal notification and proposal letter presenting the facts in support of which the recommendations would be presented to an adjudicator asked for the passport to be surrendered. The subject did not comply. He reported the document lost eight months later. The adjudicator, upon receiving the recommendations for revocation and suspension of passport services, established the start date of the suspension period as the expiry date of the non-surrendered passport, owing to the particular circumstances of the file. A more detailed file summary of this decision is available in the annex.
[ref. 11163 October 6, 2008] Escort imposters in possession of unaltered documents of two of his children - Admission - Revocation of the subject's and his children's passports based on 10(2)(b) and 10(2)(c) CPO respectively, maintained in part, as the revocation of the passport of one of the children is not retained - Effect of a decision by third parties not to initiate the criminal process - Suspension of passport services - Combination of mitigating and aggravating factors in determining the period of suspension.
Mitigating circumstances retained: admission, cooperation and pressure by the family. Circumstances not retained: having acted on humanitarian grounds and incurring financial losses. Aggravating factor: potential impact on children's future travel. Combination of mitigating and aggravating factors led to a 15-month reduction of the recommended five-year suspension period. A more detailed file summary of this decision is available in the annex.
- Escorting foreigners is a variation on the previous type, in which the third person
being accompanied is carrying a fraudulent document, usually altered, that has no
connection to the smuggler.
[ref. 10979 October 16, 2006] Two incidents of interception abroad in the company of travellers with altered passports - Aiding illegal migration - Revocation under 10(b) CPO maintained - Inference that the foreign authority, by not filing criminal charges against the subject, exonerated her, rejected - Criminal conviction in a foreign court of law for the second incident - Allegations of inadequate proceedings and wrongdoing by the police and court translator rejected.
This decision demonstrates how the preponderance of evidence is established, by examining the credibility of the rebuttals and evidence filed. A more detailed file summary of this decision is available in the annex.
[ref. 4305C December 3, 2007] Interception abroad in the company of a person with a fraudulent passport - Aiding illegal migration - Revocation under 10(2)(b) CPO maintained - Start date for five-year suspension of passport services - Date retained in connection with the date on which the known offence was denied, not a subsequent statement for a separate limited validity passport application on compassionate grounds. Temporary passport services on compassionate grounds are not suspended for a given period. Similar application may simply be rejected under 9(a) CPO.
The principle established in this file is that a temporary passport application on urgent compelling compassionate circumstances that is rejected on the basis of information deemed non-compliant cannot result in suspension, for a fixed period, of future applications on the same grounds. A more detailed file summary of this decision is available in the annex.
- Lending documents is sometimes done for payment, and sometimes purely as a favour,
to allow a third person to enter the country either by altering the document by
substituting his/her own photograph or by impersonating the legitimate holder (the
lender) at the point of entry.
[ref. 11223 March 31, 2008] Declaration of loss, then theft of a document intercepted in the hands of a third party - Credibility of denial of having allowed use of his passport - Revocation under 10(2)(c)(d) maintained - Right to legal counsel in the processing of a passport application to return to Canada vs. Evidence gathered during conversations with consular officials - Suspension of passport services applicable to any type of travel document - Answers not admissible against the subject in other instances - Self-serving evidence contradicting written statement signed by subject - Start date of period during which services suspended.
The recommendation for revocation was maintained. The recommendation for suspending services for five years was maintained, however, from the date on which theory of theft was substituted by theory of loss, not the date of the last representations in support of the new theory. A more detailed file summary of this decision is available in the annex.
[ref. 080148 - March 31, 2009] Loan of passport to a related person - Subject's admissions - Objective test as to whether an offence was committed positive - Scope and purpose of subjective test in determining the sanction to impose - Revocation of passport under 10(2)(c) CPO - Mitigating factors - Passport services maintained for 3 years.
This decision explains the two steps in adjudicating recommendations to revoke passports and withhold passport services. In this specific file, major mitigating circumstances led to the adjudicator's decision to apply a 24-month reduction to the recommended 5-year period of withholding passport services. A more detailed file summary of this decision is available in the annex.
- Altering documents occurs decreasingly, particularly since the introduction of the
new design of the passport booklet and the requirement of individual passports for
minor children. Before 2004, the names of minor children could be inserted on a
remarks label affixed to the visa pages of the parents' passports. Faced with the
prospect of fraudulent insertion of remarks labels becoming widespread, the International
Civil Aviation Organization (ICAO) introduced the "one passport, one person" standard.
In conforming to this standard, Canada mitigated the financial impact on families
by establishing a schedule with reduced fees for passports of minor children.
[ref. 10543 September 5, 2006] Admission by subject that his previous passport, reported lost, had been altered by insertion of an observation label containing the names of three children - Refusal to issue passport under 9(a) CPO maintained - Defence based on naivety and humanitarian interest to help "poor children" - Elements dismissed as mitigating circumstances - Material evidence (altered document) produced - Decision In absentia rendered despite impossibility of serving a formal proposal letter - Requirements of procedural fairness met on account of extensive correspondence between the bureau and the subject - Five-year suspension of passport services.
Mitigating circumstance (admission) cancelled out by aggravating factor: having made herself the instrument of illegal migration of minors whose fate and destination were uncertain. Suspension of passport services for full five-year period. A more detailed file summary of this decision is available in the annex.
- False statements can take various forms. Mostly, these are statements of document
loss, theft or damage that the truth is disputed by the Security bureau. Other types of false statements: forging signatures of spouses or guarantors on the passport application form, submitting false documentary evidence of citizenship.
Convictions under section 57 of the Criminal Code are grounds for passport refusal and revocation under sections 9(e) and 10(1) of the Order. This type of violation is reflected in the breakdown by generic groups in this section. Thus, the vast majority of convictions under section 57 involve "false statements". Adjudication of files involving convictions for the use or production of forgeries would be reflected in our "altering documents/forgery" statistics.
[ref. 10930 March 26, 2007] Identity theft - Revocation under section 10(d) of the Canadian Passport Order, maintained - Recommendation for a five-year suspension of passport services, based on section 9 of the Order, maintained - Mitigating factor: admission - Aggravating factor: serious inconvenience resulting from the subject's action for the victim of the identity theft.
The proposal letter disclosing all of the relevant facts to the subject was quite conclusive. Realizing his true identity was known to the authorities, the subject made a confession in a subsequent document, saying that he would have "[translation] liked to have informed you of my true identity myself; the stress from the events had upset my thinking and my decision-making shortly after my arrest. I am sorry to have caused you this inconvenience."
Since the salient fact was admitted, that is, identity theft, there is the objective presence of grounds for supporting the recommendation for revoking the passport, which is provided for in 10(d). Given this finding, the adjudicator did not decide on the admissibility of the grounds under section 10(b) of the Order.
The recommendation of a five-year suspension of passport services effective on the date of arrest abroad remains to be considered. Obtaining a passport using fraudulent documents is an act that carries serious consequences. Passport Canada ensures that the security, integrity and value of the travel documents issued to citizens is maintained. Canadians expect nothing less from the government.
To balance this element like other elements in this context, by which Canada has committed to sanction passport-related abuses and fraud, it is important to note the subject's post facto cooperation, confirming his true identity to the authorities, though only after he was informed that his identity had been discovered. Moreover, the Canadian citizen identity usurpation created serious inconveniences for that person as a result of his various actions and transactions under that identity, as well as possible future inconveniences with various parties.
In view of these facts, no reduction to the period of the recommended suspension was applied. Therefore, the recommendation for suspension of passport services for the full five-year period has been maintained.
[ref. 10487 October 2, 2007] False declaration of loss - Impossibility of serving formal proposal letter of revocation to the subject, providing opportunity to submit facts contradicting the allegations - Decision in absentia, in accordance with section 8 of the rules of procedure - Recommendations maintained on account of evidence - sections 9(a) and 10(1) CPO.
This decision outlines the considerations on which the adjudicator can decide on a recommendation for revocation and suspension of passport services, even though the subject had not been notified, and therefore was unable to enter a full and complete defence. The subject subsequently learned of the decision, which he disputed on the grounds that he was not notified of same. These arguments were also set aside. A more detailed file summary of this decision is available in the annex.
[ref. 11269 December 11, 2007] Minor child passport application - Parent checking "No" to question on existence of separation agreements, court orders or legal proceedings pertaining to custody, mobility or access to child - Court judgment in these matters provided by other parent post-passport issuance - Minor passport revocation recommendation based on 10(2)(d) maintained - Parent passport revocation under 10(1) CPO and withholding of passport services recommendations maintained in part - Court permission for parent to travel obtained after the compromising fact not nullifying presence of objective ground to revoke parent passport - However, this element is factored in determining appropriate period of withheld in the subjective test to apply - Adjudication mindful of not fuelling a difficult family situation and break-up.
Negative answer by applying parent on the passport application form question cited above. Court judgment clearly stated that if the subject were to apply for a passport for the children, the authorization of the other parent is required. The other parent did not signed the application for the child. The subject tabled a detailed rebuttal explaining that as the child was born after the divorce, and because the other parent was no longer part of their life or birth, the child was given the subject's own name and the other parent's name on the birth certificate is undeclared.
It is recognized that the subject has sought the Court's permission to apply for a passport for E... but this was after having filed a Canadian passport application in the child's name, and obtained the document. This is a post facto element to the submission of the child's application. The document issued in the child's name is revoked under 10(2)(d) CPO. The subject's passport is revoked under 10(1) and 9(a)(i) CPO.
As to the period of withheld of passport services, the decision notes the objectives of deterrence and sensitizing to the gravity of the omission are mostly served with the finding on the revocation of the subject's passport. The decision notes that the other parent's request to a Court that the subject be forbidden to leave the province was rejected, as the tribunal retained the subject's clear intent to not live outside its boundaries. As the family court was trying to prevent a quarrelsome climate for the benefit of the children, the decision took into consideration that a significant period of withheld may fuel a difficult break up. Hence, a more lenient period of 18 months was applied. A more detailed file summary of this decision is available in the annex.
[ref. 11333 September 25, 2008] Revocation of a Certificate of Identity on the grounds that it was issued on the basis of false statements - Maintained under 10(2)(d) CPO - Definition of a passport inclusive of travel documents - Eligibility conditions for Certificates of Identity - Objective test not requiring intention to defraud - Issuance proscribed by applicable policy - Five-year suspension of travel document and passport services.
The eligibility requirements for Certificates of Identity state that a permanent resident without refugee status within the meaning of the applicable convention must be virtually stateless and be unable for valid reasons to obtain a passport from his/her country of birth. The subject obtained a Certificate of Identity by stating that he was unable to obtain a document from his country of birth. The evidence shows that, on the date the application for a Certificate of Identity was made, he was in possession of a national passport. The Certificate of Identity is revoked. The suspension of services applies to any type of travel document, whether a Certificate of Identity or a Canadian passport. A more detailed file summary of this decision is available in the annex.
[ref. 11264 - March 26, 2009] Spouse's signature affixed to child's passport application by the applicant parent - Consent and signature of the spouse on the application form denied - Revocation of passport of the child and of the parent who filed the passport application, pursuant to 9(a) and 10(1) CPO - Passport services withheld for 30 months - Objectives of deterrence, sensitizing and non-aggravation of a difficult family situation and break-up.
Since the allegation that the signature of one of the parents was fraudulent was disputed, this matter was decided on a balance of probabilities. The decision analyzed the specific factors of the family breakdown to determine the period in which passport services would be withheld from the parent who committed the wrong. A more detailed file summary of this decision is available in the annex.
- The "boarding pass" category, as its name suggests, refers to individuals exchanging
boarding passes.
[ref. 9860 - March 15, 2007] Escort to illegal migrants - Burden of proof - Evidence requirements - Passport revocation under 10(2)(b) Canadian Passport Order (CPO) - Finding of guilt in criminal fora not necessary to enact CPO section - Circumstantial elements of interest to determine the length of the period of withheld of passport services.
The Security bureau presented a file wherein the subject was ostensibly involved in 11 incidents as an escort to individuals in custody of fraudulent travel documents. The subject maintains he must be deemed innocent unless proven guilty with due process. This argument is not retained as Passport Canada administers the CPO, not the Criminal Code. Furthermore, he puts forward that foreign immigration authorities were satisfied as to his innocence because they released him and did not press charges. The record shows he was denied entry and deported back to his starting point in four incidents. Foreign border authorities have made an administrative decision as opposed to instituting criminal proceedings.
After having carefully examined the evidence in the 11 incidents alleged against the subject, seven of them were found to be adequately demonstrated, as per the applicable burden of proof which provides that the evidence is assessed on a balance of probabilities basis. The arguments tabled as mitigating elements to determine the length of the period of withheld of passport services are not retained. A more detailed file summary of this decision is available in the annex.
[ref. 10831 April 30, 2007] Boarding pass swaps - Passport revocation under 10(b) CPO - Of credibility of denials - Evolving story as investigation unfolded and following receipt of a formal proposal letter recommending the revocation and withholding of passport services for 5 years - Recommendations maintained.
Subject developed rebuttals as factual elements disclosed during the investigation of the Security bureau. Vague explanations aimed at portraying the elements linking the subject to third parties fraudulently using her identity and travel document number, as the result of burglars focussing on airline tickets, are assessed against the material and circumstantial evidence produced which were deemed more credible. A more detailed file summary of this decision is available in the annex.
[ref. 11051 July 18, 2007] Boarding pass swap - Passport revocation under 10(2)(b) CPO - Letters from the Security bureau not answered - Passport not returned during investigation - Formal proposal letter recommending passport revocation and withholding of passport services for 5-years not rebutted - Decision maintaining recommendations - Mitigating element (cooperation with authorities) - Conditional alternate periods of withholding of passport services applied.
The subject's admission when he was intercepted warrants a reduction of 12 months to the recommended period of maintained. However, he omitted to surrender his passport during the investigation. Conditional alternate periods of withholding of passport services are applied, that are linked to the surrender, in a specified delay, of the revoked passport which shall not have been used or altered during the investigation. A more detailed file summary of this decision is available in the annex.
[ref. 10973 June 9, 2008] Recommendation for passport refusal and suspension - Provision used to support recommendation 10(b) CPO, stipulating revocation - Natural justice - Right to opportunity to produce a full answer and defence - Reasons for which adjudicator cannot consider a CPO alternate provision to meet objective sought by Passport Canada - Recommendation rejected.
This decision applies a principle of administrative law whereby adjudicators administer files in which the parties are not represented such that they are given an opportunity to present a defence to the best of their abilities. In so doing, it must make sure that the process remains fair and their rights are not contravened. The main question at issue is to determine, in files in which the wrong legal provision is invoked by the bureau which has the burden of proof, whether the adjudicator may consider, on his/her own authority, an alternate provision that seems to meet the particulars of the case. The answer is "no." A more detailed file summary of this decision is available in the annex.
- Others, to take into account other reasons that can be invoked for revoking or suspending
passport services, as described in the Canadian Passport Order. For example: criminal charges laid against the subject, court-imposed mobility restrictions, possession of false travel documents, etc.
[ref. 10813, September 27, 2006] Charge of making a false statement concerning a passport - disclosure strictly limited to the laying of criminal charges - sanction sought (suspension of passport services) for a set period that is not suspensive at the end of the criminal investigation - terms of disclosure to the subject - natural justice - bureau and subject invited to exchange information on the alleged wrongdoing.
The Subject was advised that the Security bureau retained against him the fact that he was facing a criminal charge of making a false statement concerning a passport and using a counterfeit document. The mere disclosure that criminal charges had been laid against the subject led the subject to make representations strictly related to the hybrid nature of the offences, the fact that the mode of indictment had not been chosen, and the fact that no judgment had been rendered, as the trial had not taken place. In accordance with rules of procedure 19 and 28(6), the bureau and the subject were invited to exchange information more material than that disclosed in the letter of proposal. The subject was advised that his response did not address the material facts retained against him, which the bureau was invited to communicate to him to permit the presentation of a full answer and defence in the context of the administrative procedure brought against him.
[ref. 10980, October 20, 2006] Recommendation for revocation based on the fact that the applicant is charged in Canada with a criminal offence - sections 10(1) and 9(b) of the Order - subjective test in exercising discretionary authorities - relative seriousness of the offense - special circumstances with regard to a case pending trial.
Subject was charged with fraud over $5,000 and use of a counterfeit document (forged cheque). When criminal charges were laid, no restriction on the subject's mobility was sought by the Crown. The accused was released on a promise to appear. Considering the facts that the nature of the fraud was in no way related to the possession of a passport, that the passport was in the possession of the Security bureau and so could not facilitate the subject's flight outside the jurisdiction of the court, and that the arrest warrant issued against the subject for failure to appear was geographically restricted, attesting to the Crown's assessment of the offence as "relatively serious," the recommendation of revocation of the passport was not maintained.
[ref. 10949 September 28, 2007] Passport refusal under 9(c) CPO stating that Passport Canada may refuse to issue to an applicant who stands charged outside of Canada with the commission of any offence that would, if committed in Canada, constitute an indictable offence - Objective and subjective tests to perform - Adequate disclosure - Absence of full / unrestricted constitutional right to passport services - Perceived unfair procedural delays not creating an ipso facto obligation to issue a passport - Permissible basis to refuse to issue, following a review of the equivalency tests to perform in the case of persons "standing charged" abroad - Applicable standard in exercising the discretionary authority vested in 9(c) CPO.
Assessment as to whether the generic disclosure of alleged facts against the subject in the context of a thorough knowledge of the file by Counsel is adequate. Study of the protection afforded by the Charter (section 6) on the liberty of movement. Study on the equivalency test to conduct for charges pressed abroad relative to indictable offences in Canada (objective test). Impact of the process time of the file on the due process and fairness duties of the Agency. Explanations on the subjective test to conduct in the exercise of the discretionary authority vested in 9(c) CPO. A more detailed file summary of this decision is available in the annex.
Ref. MI89963 (January 18, 2008) – Procedure for request for temporary passport services based on urgent compelling compassionate considerations (UCCC) - Requests can be filed pending completion of security review of regular passport application - Request denied by the Security bureau, directed to adjudication as per subsection 29(2) of the rules of Procedure - Decision maintained - Request by client to Adjudicator to revisit matter - Adjudication decisions are not being reviewed by Adjudicator - New UCCC request can be filed for new circumstances, upon tabling of a new application with prescribed fee - Turned down UCCC requests not affecting subject's citizenship.
The Security bureau of Passport Canada opened an investigation on the subject's passport application. The applicant sent various faxes stressing that he needed to travel abroad to visit an ailing sibling and show respect to a deceased one's family. The bureau replied that limited validity passport (LVP) services for a life threatening illness of a family member may be considered, pending completion of a security investigation on his regular passport application, upon tabling of a separate standard application. The applicant needed to present himself to an issuing office to complete the form, pay the applicable fee and bring along documentation that supported the compelling and urgent nature of his request.
The Security bureau's turned down the LVP request. The decision is maintained by the adjudicator. A close examination of the material submitted by the applicant in support of the LVP services application was made. The telexes tabled by the applicant came from individuals who could not attest to the events described (the death of a sibling and the medical situation of another one). The hospital release certificate was confirmed as not matching the institution's records and, furthermore, was found to be questionable in terms of authenticity.
The onus is on the claimant to LVP services to provide satisfactory evidence as to the nature of the urgent compelling compassionate circumstances. The application having been reviewed, the fee cannot be reimbursed. The decision informs the applicant he can not amend post-facto his application for LVP services. He is advised that if he wished to table new circumstances on the basis of which LVP services might be considered, pending completion of the investigation of his regular full-validity passport application, a new application with the prescribed fee must be submitted.
Following receipt of the decision, the subject writes back to the adjudicator enquiring about the impact of the decision on his citizenship, and asking for a file review. The adjudicator confirms the decision strictly pertains to a petition for Temporary Passport Services based on urgent compelling compassionate considerations. This decision is not affecting his Canadian citizenship. With regard to elements filed in support of a decision re-opening, the decision was confirmed as final. The information was sent to the Security bureau for any action deemed appropriate from its end. As the outstanding regular passport application was still pending, the neutrality and impartiality to adjudicate the file merits when and if the bureau conveys proposals to deny/revoke regular passport services have to be protected. A more detailed file summary of this decision is available in the annex.
[ref. AC003364 - June 2, 2008] request to review decision to revoke passport rendered under simplified process by Security bureau, not by adjudicator - Review of parameters for application of process - Legitimacy of exchanging information among government agencies - Plea for rehabilitation - Legitimate objectives of Passport Canada. Decision maintained.
This decision examines the simplified revocation process, used in files in which the criteria for refusal or revocation are clear and reliable information is available. The information must be easily verifiable. Passport Canada communicates with the applicant or passport holder in writing to advise that his/her application is being refused or his/her passport is being revoked. This decision remains in effect until the client clarifies any inaccurate information. The subject is advised that a request to review the decision may be made with the Passport Canada Adjudicator. A more detailed file summary of this decision is available in the annex.
[ref. 080354 - March 26, 2009] Charged in the US with producing and distributing child pornography - Arrest warrant - Subject in custody in GB during extradition proceedings that are being contested - Revocation of passport under 10(1) and 9(c) CPO - Arguments that recommended measures were unnecessary and premature - Rejected - Argument concerning the obligation to preserve liberty of movement in the absence of a conviction - Rejected - Passport services withheld pending removal or disposition of charges.
This decision confirms the concepts of the equivalency test that applies in files where the subject stands charged outside of Canada with the commission of an offence that would, if committed in Canada, constitute an indictable offence (ref. 10949 examined above). It then disposes of the arguments that attempted to show that the revocation and withholding of passport services would be premature and unnecessary having regard to the fact that the client was in custody, could not travel and had not been convicted of the charges against him. A more detailed file summary of this decision is available in the annex.
The following table gives the prevalence established for activities of type I and V.
| Activities Subject to Sanctions | Adjudications | |||||||
|---|---|---|---|---|---|---|---|---|
| 2002-03 | 2003-04 | 2004-05 | 2005-06 | 2006-07 | 2007-08 | 2008-09 | 2009-10 | |
| Assistance to impersonators | 12 | 3 | 2 | 3 | 12 | 14 | 9 | 12 |
| Escorting foreigners | 5 | 4 | 1 | 1 | 4 | 11 | 9 | 2 |
| Lending documents | 8 | 2 | 1 | 0 | 5 | 5 | 4 | 7 |
| Altering documents/forgery | 4 | 1 | 0 | 1 | 4 | 0 | 0 | 2 |
| False statements | 3 | 2 | 3 | 4 | 11 | 20 | 11 | 38 |
| Boarding pass | 2 | 3 | 0 | 1 | 4 | 3 | 3 | 5 |
| Other | 0 | 2 | 1 | 1 | 2 | 15 | 10 | 8 |
| Total adjudications/year | 34 | 17 | 8 | 11 | 42 | 68 | 46 | 70 |
Length of suspension of passport services
We provide a table illustrating the diversity of the penalties, taking into account aggravating or mitigating circumstances in each individual file. The sanction examined here is the length of suspension of passport services imposed by the Adjudicator, which ranges from a maximum of five years, or the maximum length of validity of a passport, to zero, naturally in files where the recommendation of suspension is disallowed or not applicable. The periods of suspension of service may be suspensive or conditional on an event.
| Sanction | No. of decisions | ||||||
|---|---|---|---|---|---|---|---|
| Previous | 2004-05 | 2005-06 | 2006-07 | 2007-08 | 2008-09 | 2009-10 | |
| 5 years | 83 | - | 10 | 27 | 34 | 16 | 36 |
| 5 years minus 3 months | 1 | - | - | - | - | - | - |
| 5 years minus 6 months | 9 | 1 | 1 | 1 | 2 | - | - |
| 5 years minus 9 months | 0 | 1 | - | - | 2 | 1 | - |
| 5 years minus 12 months | 23 | 2 | - | 7 | 6 | 7 | 7 |
| 5 years minus 15 months | 8 | 1 | - | - | 2 | 4 | 2 |
| 5 years minus 18 months | 3 | - | - | - | 1 | 1 | 2 |
| 5 years minus 20 months | 1 | - | - | - | - | - | - |
| 5 years minus 24 months | 2 | - | - | - | 2 | 1 | 3 |
| 5 years minus 30 months | 1 | - | - | - | - | 1 | 3 |
| 2 years | - | - | - | - | 1 | 2 | 2 |
| 1 and a half year | - | - | - | - | 1 | 1 | - |
| 1 year | 0 | 1 | - | - | - | - | - |
| suspensive or alternative | - | - | - | - | - | 4 note 6 | - |
| suspensive or conditional | 3 | - | - | 5 note 2 | 5 note 4 | 2 note 7 | 4 |
| 0 (no suspension) | 9 | 2 note 1 |
- | 2 note 3 |
11 note 5 |
6 note 8 |
11 |
| 143 | 8 | 11 | 42 | 68 | 46 | 70 | |
| Note 1: | One revocation recommendation was rejected; in the second file, the subject was not a citizen, therefore it was not so much a suspension as permanent ineligibility until the subject obtains confirmed citizenship. |
| Note 2: |
Details regarding suspensive or conditional periods of non-issuance of passports:
|
| Note 3: | See files 10980 and 10813 summarized above. |
| Note 4: | details regarding suspensive, conditional or alternative periods of non-issuance of passports:
|
| Note 5: | details regarding the absence of suspension of passport services:
|
| Note 6: | details regarding suspensive or alternative periods of non-issuance of passports:
|
| Note 7: | details regarding conditional alternative periods of non-issuance of passports:
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| Note 8: | details regarding the absence of suspension of passport services:
|
The suspension period takes into consideration the aggravating or mitigating factors case. The main mitigating factors are the subject's cooperation in the investigation, the presence of compassionate or humanitarian grounds, remorse, and major loss or inconvenience resulting from the fraud. The main aggravating factors are denial in the presence of solid evidence, having been paid for committing the fraud, and having been the instrument of an illegal migration involving vulnerable individuals such as children or persons who will be exploited at work or elsewhere.
The interpretation of data can be highly debatable, depending on the source of interpretation. As the author of this report as well as the author of each of the adjudications, we believe it is relevant to ask the reader to appreciate the following elements. First, for mitigating circumstances to be taken into consideration, they must be brought to the attention of the Security bureau at the time that a file is opened for investigation.
Second, the fact that a minority of recommendations for revoking or refusing passport services were rejected leads us to believe that sufficient number of entitlement adjudication decisions now exists to help the Security bureau identify which files to send to arbitration.
