2017 FC 872, 2017 FC 872

T-232-17 2017 FC 872 Jade Elizabeth Thelwell ( Applicant ) v. The Attorney General of Canada ( Respondent ) Indexed as: Thelwell v. Canada (Attorney General) Federal Court, Mactavish J.—Ottawa, September 14 and October 3, 2017.

Citizenship and Immigration — Status in Canada — Citizens — Passports — Judicial review of decision of Investigations Division of Passport Program Integrity Branch of Citizenship and Immigration Canada finding that applicant provided false or misleading information in connection with passport application — Consequently, applicant imposed five-year suspension of passport services — Applicant, 25-year-old Canadian citizen, aspiring pop singer — Charged with extortion, criminal harassment — Police subsequently seizing applicant’s passport — Applicant tried unsuccessfully to recover seized passport — Applied for new passport but ultimately provided false information; later, notified by Passport Integrity Branch that under investigation — Passport Integrity Branch issuing decision pursuant to Canadian Passport Order — Finding that sufficient evidence existing to support finding that applicant provided false or misleading information — Five-year refusal of passport services imposed on applicant — Whether imposition of five-year suspension of passport services on applicant reasonable — Passport Integrity Branch not reasonably balancing competing considerations in this case — No indication in decision under review that Passport Integrity Branch aware that applicant’s Charter rights implicated in this case — Reasons provided for imposing five-year period of passport ineligibility on applicant not addressing impact that decision would have on applicant’s mobility rights; decision maker also not balancing applicant’s interests against objectives of Passport Program as required — Review of passport cases conducted — Misconduct in cases reviewed far more serious than applicant’s — No indication in reasons provided by Passport Integrity Branch that it engaged with applicant’s important evidence on negative consequences of decision thereon in any meaningful way; not explaining why reasonably necessary to refuse applicant’s passport for five years in order to preserve integrity of Canadian passport system — Therefore, Passport Integrity Branch failing to carry out necessary analysis in balancing severity of interference with applicant’s Charter-protected mobility rights with objectives of Passport Program — Decision set aside, matter remitted to different decision maker for reconsideration — Application allowed.

Constitutional Law — Charter of Rights — Mobility Rights —Investigations Division of Passport Program Integrity Branch of Citizenship and Immigration Canada finding that applicant provided false or misleading information in connection with passport application; therefore, imposing five-year suspension of passport services on applicant — Passport Program Delivery Instructions, which govern administration of Passport Program, not recognizing Charter-protected mobility rights implicated in decisions such as this — No indication in decision under review that Passport Integrity Branch aware that applicant’s Charter rights implicated in this case; decision not addressing, in particular, impact that decision would have on applicant’s mobility rights — Decision makers required to balance severity of interference with individual’s Charter-protected rights against objectives of program in question — Required individualized assessment absent in this case; thus, imposition of five-year period of passport ineligibility not reflecting proportionate restriction on applicant’s Charter-protected mobility rights.

This was an application for judicial review of a decision of the Investigations Division of the Passport Program Integrity Branch of Citizenship and Immigration Canada which found that the applicant had provided false or misleading information in connection with her passport application. Consequently, a five-year suspension of passport services was imposed on her. The applicant is a 25-year-old Canadian citizen and aspiring pop singer.

Because of failed dealings with a putative investor who was going to support her work, the applicant behaved in a way that led to extortion and criminal harassment charges against her. Afterwards, the police seized the applicant’s passport in satisfaction of a bail condition. The charges were either dropped or the applicant received an absolute discharge after pleading guilty to one of the charges. Afterwards, she tried unsuccessfully to obtain her seized passport from the police. She thus applied for a new passport but ultimately provided false information.

Further to this, the applicant was notified by the Passport Integrity Branch that she was under investigation. An investigator concluded that the applicant had provided false or misleading information in connection with her passport application. She was then offered the opportunity to submit information that would “contradict or neutralize” this finding prior to a final decision, which the applicant did. Nevertheless, the Passport Integrity Branch issued its decision pursuant to the Canadian Passport Order .

The Passport Integrity Branch found that there was sufficient evidence to support a finding that the applicant had provided false or misleading information in the declaration that she had submitted with her passport application. As a result, it refused to issue the applicant a passport and a five-year period of refusal of passport services was imposed on her.

The applicant argued that the five-year suspension of passport services was unreasonable since it failed to take relevant facts into account, failed to consider the disproportionate effect that a lengthy period of passport ineligibility would have on her and failed to properly balance the objectives of the Passport Program against the impact that a five-year suspension of passport services would have on her mobility rights protected by the Canadian Charter of Rights and Freedoms . The issue was whether the imposition of a five-year suspension of passport services on the applicant was reasonable.

Held , the application should be allowed. The Passport Integrity Branch did not reasonably balance the competing considerations in this case. The administration of the Passport Program is governed by the Passport Program Delivery Instructions (Instructions). There is nothing in the Instructions that recognizes that Charter-protected mobility rights are implicated in decisions such as this. Nor was there any indication in the decision under review that the Passport Integrity Branch was aware that the applicant’s Charter rights were implicated in this case.

The reasons provided for imposing a five-year period of passport ineligibility on the applicant did not address the impact that the decision would have on her

mobility rights. Nor did the decision maker balance the applicant’s interests against the objectives of the Passport Program, as was required. A review of the passport cases decided by this Court and by the Federal Court of Appeal was made. However, all of the misconduct in those cases was far more serious than that of the applicant herein. Decision makers must balance the severity of the interference with the individual’s Charter-protected rights against the objectives of the program in question.

This type of individualized assessment was absent in this case, with the result that the imposition of a five-year period of passport ineligibility did not reflect a proportionate restriction on the applicant’s Charter-protected mobility rights. The applicant provided the Passport Integrity Branch with information regarding, in particular, her mental health and the devastating impact that a suspension of passport services would have on her musical career.

There was no indication in the reasons provided by the Passport Integrity Branch that it engaged with any of this evidence in any meaningful way and it did not explain why it was reasonably necessary to refuse the applicant’s passport for five years in order to preserve the integrity of the Canadian passport system.

Moreover, since it was determined that a five-year refusal of passport services was a disproportionate infringement of the applicant’s Charter-protected mobility rights, in these circumstances, the possibility for the applicant of applying for a limited validity travel document for urgent and compassionate reasons did not sufficiently mitigate this interference. Therefore, the Passport Integrity Branch failed to carry out the necessary analysis in balancing the severity of the interference with the applicant’s Charter-protected mobility rights with the objectives of the Passport Program.

The decision was set aside and the matter was remitted to a different decision maker for reconsideration. STATUTES AND REGULATIONS CITED Canadian Charter of Rights and Freedoms , being

Part I of the Constitution Act, 1982 ,

Schedule B, Canada Act 1982 , 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 6(1). Canadian Passport Order , SI/81-86, ss. 4, 9 , 10 , 10.2 . CASES CITED APPLIED: Doré v. Barreau du Québec , 2012 SCC 12 , [2012] 1 S.C.R. 395; Dunsmuir v. New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190. DISTINGUISHED: Kamel v. Canada (Attorney General) , 2013 FCA 103 , 448 N.R. 217, [2013] F.C.J. No. 402 (QL); Fontaine v. Canada (Attorney General) , 2016 FC 376 , [2016] F.C.J. No. 343 (QL). CONSIDERED: Thelwell v. Canada (Attorney General) , 2016 FC 1304 , 46 Imm. L.R. (4th) 43; Kamel v.

Canada (Attorney General) , 2009 FCA 21 , [2009] 4 F.C.R. 449, leave to appeal to S.C.C. refused, [2009] 2 S.C.R. vii; Loyola High School v. Quebec (Attorney General) , 2015 SCC 12 , [2015] 1 S.C.R. 613; Abdi v. Canada (Attorney General) , 2012 FC 642 , [2012] F.C.J. No. 945 (QL); Brar v. Canada (Attorney General) , 2014 FC 763 , 460 F.T.R. 248; Desmond De Hoedt v. Canada (Citizenship and Immigration) , 2014 FC 829 , 462 F.T.R. 162; Dias v. Canada (Attorney General) , 2014 FC 64 , [2014] 4 F.C.R. 915, 466 N.R. 80, affd 2014 FCA 195 , 30 Imm. L.R. (4th) 47, [2014] F.C.J. No. 958 (QL); Gomravi v.

Canada (Attorney General) , 2013 FC 1044 , 441 F.T.R. 28; Latifi v. Canada (Attorney General) , 2013 FC 939 , [2013] F.C.J. No. 975 (QL); Lipskaia v. Canada (Attorney General) , 2016 FC 526 , [2016] F.C.J. No. 489 (QL); Mikhail v. Canada (Attorney General) , 2013 FC 724 , 435 F.T.R. 235; Okhionkpanmwonyi v. Canada (Attorney General) , 2011 FC 1129 , [2011] F.C.J. No. 1389 (QL); Saint-Vil v. Canada (Attorney General) , 2014 FC 48 , 446 F.T.R. 79, sub nom. Eastwood v. Canada ; Sathasivam v. Canada (Attorney General) , 2013 FC 419 , 431 F.T.R. 261; Simmonds v.

Canada (Attorney General) , 2013 FC 967 , 439 F.T.R. 206; Slaeman v. Canada (Attorney General) , 2012 FC 641 , 412 F.T.R. 103; Villamil v. Canada (Attorney General) , 2013 FC 686 , 435 F.T.R. 88; Wong v. Canada (Attorney General) , 2017 FC 152 , [2017] F.C.J. No. 177 (QL); Mbala v. Canada (Attorney General) , 2014 FC 107 , 447 F.T.R. 121; Krivicky v. Canada (Attorney General) , 2013 FC 1236 , [2013] F.C.J. No. 1335 (QL); Siska v. Passport Canada , 2014 FC 298 , [2014] F.C.J. No. 326 (QL). REFERRED TO: Kurukkal v.

Canada (Minister of Citizenship and Immigration) , 2009 FC 695 , [2010] 3 F.C.R. 195, 347 F.T.R. 60, affd 2010 FCA 230 , 324 D.L.R. (4th) 292, [2010] F.C.J. No. 1159 (QL); Catalyst Paper Corp. v. North Cowichan (District) , 2012 SCC 2 , [2012] 1 S.C.R. 5; Allen v. Canada (Attorney General) , 2015 FC 213 , 476 F.T.R. 116. APPLICATION for judicial review of a decision of the Investigations Division of the Passport Program Integrity Branch of Citizenship and Immigration Canada which found that the applicant had provided false or misleading information in connection with her passport application.

Consequently, a five-year suspension of passport services was imposed on her. Application allowed. APPEARANCES Seamus Murphy for applicant. Patrick Bendin for respondent. SOLICITORS OF RECORD Gerami Law Professional Corporation , Ottawa, for applicant.

Attorney General of Canada for respondent. The following are the reasons for judgment and judgment rendered by [ 1 ] Mactavish J. : Due to a series of extremely ill-advised decisions on her part, Jade Thelwell finds herself without a Canadian passport. As a result, she is unable to travel to the United States to pursue her dream of a career as a pop singer. [ 2 ] By this application Ms.

Thelwell seeks judicial review of a decision of the Investigations Division of the Passport Program Integrity Branch of Citizenship and Immigration Canada which found that she had provided false or misleading information in connection with her passport application. Consequently, a five-year suspension of passport services was imposed on Ms. Thelwell. [ 3 ] Ms. Thelwell does not dispute the fact that she provided false information in her passport application.

She submits, however, that the five-year suspension of passport services was unreasonable as it failed to take relevant facts into account, including her explanation for her error. The decision maker further erred, Ms.

Thelwell says, by failing to consider the disproportionate effect that a lengthy period of passport ineligibility would have on her career and mental health, and by failing to properly balance the objectives of the Passport Program against the impact that a five-year suspension of passport services would have on her Charter [ Canadian Charter of Rights and Freedoms ]-protected mobility rights. [ 4 ] For the reasons that follow, I have concluded that the Passport Program Integrity Branch failed to recognize that Charter- protected rights were at stake in this case or to weigh the objectives of the Passport Program against Ms.

Thelwell’s interests, including the effect of a five-year period of suspension of passport services on her Charter-protected mobility rights. Consequently Ms. Thelwell’s application for judicial review will be granted. I. Background [ 5 ] Ms. Thelwell is a 25-year-old Canadian citizen and aspiring pop singer. She asserts that in 2014, she had dealings with a potential backer who told her that he would support her work financially. The promised financial support never materialized, however, and the relationship between Ms.

Thelwell and the putative investor ended when it became clear that he wanted there to be more than just a business relationship between the two of them. [ 6 ] Ms. Thelwell says that she was “offended and angry” when she discovered that her putative investor was making similar promises to other young women, and, in a series of emails, she demanded that he pay her the money that he had promised. This led to Ms. Thelwell being charged with extortion and criminal harassment in November of 2014. On December 10, 2014, the Toronto police seized Ms.

Thelwell’s passport in satisfaction of a bail condition. [ 7 ] The charge of extortion was subsequently dropped, and Ms. Thelwell pled guilty to the charge of criminal harassment for which she received an absolute discharge. Although she tried to get her passport back from the police, Ms. Thelwell says that the police representative that she was dealing with refused to return the passport to her. [ 8 ] Ms. Thelwell states that she spoke to the lawyer who had represented her in her criminal case and that he told her that the police might have destroyed her passport. Ms.

Thelwell states that her lawyer also told her that her absolute discharge meant that she did not have a criminal record, and that she could simply apply for a new passport. Ms. Thelwell asserts that she understood this to mean that she did not have to disclose the fact that she had been arrested or charged with criminal offences in her passport application. [ 9 ] Ms. Thelwell applied for a new passport in June of 2015.

Along with her application she included a “Declaration concerning a lost, stolen, inaccessible, damaged or found Canadian passport”, in which she stated that her previous passport was “about to expire, water damaged, inaccessible, thrown out at home by someone else”. [ 10 ] Shortly after Ms. Thelwell applied for a new passport, the Toronto police advised the Passport Integrity Branch that they were holding Ms. Thelwell’s passport and that it had been seized pursuant to a bail condition. Consequently, Ms. Thelwell was asked to complete a questionnaire regarding her allegedly lost passport. Ms.

Thelwell stated in her completed questionnaire that she could not remember exactly when she had lost her passport, but that she thought that it had occurred sometime in the preceding four months. She also indicated that she had not filed a police report regarding her lost passport because she knew it was “thrown out/destroyed but not lost”. [ 11 ] The Passport Integrity Branch then sent Ms. Thelwell a letter informing her that she was under investigation as information had been received suggesting that she may have submitted false or misleading information in her passport application. Ms.

Thelwell was asked to complete a second questionnaire which included questions that were specifically directed to the allegations against her. [ 12 ] In particular, Ms. Thelwell was asked whether a Canadian passport in her name had ever been seized by the police, to which she responded: “[n]o a passport has never been seized”. The very next question noted that information had been received from the Toronto police that Ms. Thelwell’s passport had been seized as part of a bail condition, and she was asked for an explanation.

She responded that her most recent passport had been taken by the police, but that the police did not want to return it “when the charges were dropped”. She went on to state that her lawyer had advised her to apply for a new passport “since first was damaged and second police is giving hard time”. [ 13 ] Between July 31, 2015 and August 18, 2015, Ms. Thelwell sent more than 20 emails to the Passport Integrity Branch explaining her version of events. Amongst other things, she suggested that she had been confused as to whether it was her current passport that had been damaged or an earlier one. Ms.

Thelwell stated in an August 3, 2015 email that “[e]verything was true on that application I sent! I was just referring to my other passport I had before the one seized”. II. The Decision Under Review [ 14 ] A Passport Integrity Branch investigator concluded that Ms. Thelwell had provided false or misleading information in connection

with her passport application. She was then offered the opportunity to submit information that would “contradict or neutralize” this finding. Ms. Thelwell responded with another flurry of emails that primarily focused on the impact that a period of refusal of passport services would have on her musical career. [ 15 ] Ms. Thelwell also repeated her claim that she was referring to an earlier passport when she declared that her passport had been damaged or thrown out, and not the one that had been seized by the police. However, the Passport Integrity Branch noted that Ms.

Thelwell’s previous passport application contradicted her description of how her earlier passport had been lost. Consequently, it advised Ms.

Thelwell that its investigation had concluded and that a decision would be made in her case, which would consider whether a period of refusal of passport services would be imposed. [ 16 ] On September 11, 2015, the Passport Integrity Branch issued a decision pursuant to sections 4 , 9 , 10 and 10.2 of the Canadian Passport Order , SI/81-86, which provides the Passport Integrity Branch with the discretionary power to refuse passport services to individuals who provide false or misleading information in a passport application. [ 17 ] The Passport Integrity Branch found that there was sufficient evidence to support a finding that Ms.

Thelwell had provided false or misleading information in the declaration that she had submitted with her passport application. As a result, it refused to issue a passport in Ms. Thelwell’s name, and a five-year period of refusal of passport services was imposed on her. [ 18 ] On October 29, 2015, Ms. Thelwell’s counsel provided further written submissions to the Passport Integrity Branch, requesting reconsideration of the five-year refusal period. These submissions were primarily based on the impact that the decision would have on Ms.

Thelwell’s career as an aspiring pop singer for whom travel to the United States was critical for success. By letter dated November 30, 2015, the Passport Integrity Branch advised Ms. Thelwell that its September 11, 2015 decision was final. [ 19 ] Ms. Thelwell sought judicial review of the November 30, 2015 decision, arguing that the Passport Integrity Branch erred in refusing to reconsider her passport application in light of the new evidence provided by her counsel. In a decision reported at 2016 FC 1304 , 46 Imm.

L.R. (4th) 43, Justice Southcott found that the Passport Integrity Branch had inappropriately fettered its discretion by failing to recognize that it had the discretion to reconsider passport decisions. This constituted a reviewable error of the sort recognized by this Court in Kurukkal v. Canada (Minister of Citizenship and Immigration) , 2009 FC 695 , [2010] 3 F.C.R. 195, 347 F.T.R. 60, affd 2010 FCA 230 , [2010] F.C.J. No. 1159 (QL). [ 20 ] Consequently, Justice Southcott set aside the November 30, 2015 Passport Integrity Branch decision and remitted Ms.

Thelwell’s reconsideration request to a different decision maker for redetermination. III. The Reconsideration Decision [ 21 ] Following Justice Southcott’s decision, Ms. Thelwell provided additional submissions to the Passport Integrity Branch, including a letter from her therapist describing her mental state, as well as social media postings and a completed passport application. In a letter dated January 23, 2017, the Passport Integrity Branch informed Ms. Thelwell that the five-year refusal of passport services would stand. This decision is the subject of the present application for judicial review. IV.

The Issues [ 22 ] While she claims that it was inadvertent, Ms. Thelwell does not dispute that she provided false or misleading information in her 2015 passport application. Nor does she dispute that decisions refusing passport services are reviewable on the standard of reasonableness. Ms.

Thelwell submits, however, that the duration of the penalty imposed on her by the January 23, 2017 decision was unreasonable, as the decision maker failed to take relevant facts into consideration, and to proportionally balance these facts against the objectives of the Passport Program as required by the Supreme Court of Canada’s decision in Doré v. Barreau du Québec , 2012 SCC 12 , [2012] 1 S.C.R. 395. V. Analysis [ 23 ] Subsection 6(1) of the Canadian Charter of Rights and Freedoms , being

Part I of the Constitution Act, 1982 ,

Schedule B, Canada Act 1982 , 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], provides that “[e]very citizen of Canada has the right to enter, remain in and leave Canada.” The Federal Court of Appeal has determined that the refusal of passport services infringes the mobility rights protected under subsection 6(1) of the Charter: Kamel v. Canada (Attorney General) , 2009 FCA 21 , [2009] 4 F.C.R. 449, at paragraphs 15 and 68 , leave to appeal to S.C.C. refused, [2009] 2 S.C.R. vii ( Kamel No. 1); Kamel v. Canada (Attorney General) , 2013 FCA 103 , 448 N.R. 217, [2013] F.C.J.

No. 402 (QL) ( Kamel No. 2). [ 24 ] Discretionary administrative decisions that engage Charter rights are to be arrived at using the analytical framework established by the Supreme Court in Doré . As Justice Abella subsequently noted, “ Doré requires administrative decision-makers to proportionately balance the Charter protections — values and rights — at stake in their decisions with the relevant statutory mandate”: Loyola High School v. Quebec (Attorney General) , 2015 SCC 12 , [2015] 1 S.C.R. 613, at paragraph 35 . [ 25 ] Although Ms.

Thelwell asserts that the errors in the information that she provided to the Passport Integrity Branch were the result of innocent mistakes on her part, she has not challenged the finding that she provided false or misleading information in connection with her passport application. Given the inconsistent and evolving nature of the explanations that Ms.

Thelwell provided over the course of this matter, suffice it to say that the Passport Integrity Branch’s finding on this point is entirely reasonable. [ 26 ] The issue for determination is thus whether the imposition of a five-year suspension of passport services on Ms. Thelwell was reasonable. [ 27 ] The parties agree that the objectives of the Passport Program include contributing to the international fight against terrorism and complying with Canada’s commitments in this area, as well as maintaining the good reputation of the Canadian passport: Kamel No. 1, at paragraph 50.

[ 28 ] The parties disagree, however, as to the factors that are to be balanced in determining whether the infringement of Ms. Thelwell’s mobility rights was reasonable. The respondent submits that the objectives of the Passport Program have to be balanced against the seriousness of Ms. Thelwell’s misconduct. According to the respondent, Ms. Thelwell’s personal circumstances are irrelevant to the balancing exercise that has to be carried out by the Passport Integrity Branch. [ 29 ] In contrast, Ms.

Thelwell submits that the objectives of the Passport Program have to be balanced against the impact on her of a decision suspending her access to passport services, in light of her particular personal circumstances. [ 30 ] The Supreme Court of Canada held in Doré that once the relevant statutory or program objectives have been identified, decision makers must then consider “how the Charter value at issue will best be protected in view of the statutory objectives”: at paragraph 56.

The Court went on to note that this is “at the core of the proportionality exercise, and requires the decision-maker to balance the severity of the interference of the Charter protection with the statutory objectives”: at paragraph 56. This proportionality test will be satisfied if the measure “‘falls within a range of possible, acceptable outcomes’”: at paragraph 56, referencing Dunsmuir v.

New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190, at paragraph 47 . [ 31 ] The Federal Court of Appeal determined in Kamel No. 2 that the Passport Program must balance program objectives against an applicant’s interests in imposing a period of suspension of passport services: at paragraph 32.

The Court further noted that this is a highly fact-based exercise, which calls for deference in reviewing a decision to impose a period of suspension of passport services: Kamel No. 2, at paragraph 35. [ 32 ] However, the Federal Court of Appeal went on in Kamel No. 2 to state that it “would not give any deference to a ministerial decision that does not take Charter rights into account or that restricts them disproportionately” as “[t]hat would be an unreasonable decision”: Kamel No. 2, at paragraph 35. [ 33 ] I am not persuaded that the Passport Integrity Branch reasonably balanced the competing considerations in this case. [ 34 ] The administration of the Passport Program is governed by the Passport Program Delivery Instructions [Instructions].

These instructions provide that where it has been determined that an individual has provided false or misleading information in connection with a passport application, a maximum period of suspension of passport services of 10 years is possible in accordance with provisions of

section 10 of the Canadian Passport Order . The Instructions state, however, that the period of passport ineligibility that will usually be imposed is five years. The Instructions also note that co-operation with the Passport Program during the course of an investigation may reduce the period of refusal of passport services. No other possible mitigating factor is identified in the Instructions. [ 35 ] There is nothing in the Passport Program Delivery Instructions that recognizes that Charter-protected mobility rights are implicated in decisions such as this.

Nor is there any indication in the decision under review that the Passport Integrity Branch was aware that Ms. Thelwell’s Charter rights were implicated in this case. [ 36 ] The decision maker was clearly aware of Ms. Thelwell’s claim that she was “not an average Canadian”, and that a five-year suspension of passport services would have more of an impact on her than it would on an average person who used their passport only occasionally. However, the reasons provided for imposing a five-year period of passport ineligibility on Ms.

Thelwell do not address the impact that the decision would have on her mobility rights. Nor does the decision maker balance Ms. Thelwell’s interests against the objectives of the Passport Program, as he or she was required to do: Kamel No. 2, at paragraph 32. [ 37 ] Instead, the “standard ineligibility period” of five years was simply imposed on Ms.

Thelwell on the basis that five-year suspensions of passport services have been found by this Court “to be a reasonable period in light of the facts on which those cases were decided ” (my emphasis). [ 38 ] As the Supreme Court observed in Doré , “the nature of the reasonableness analysis is always contingent on its context”: at paragraph 7, citing Catalyst Paper Corp. v. North Cowichan (District) , 2012 SCC 2 , [2012] 1 S.C.R. 5.

The Supreme Court went on to observe that “[i]n the Charter context, the reasonableness analysis is one that centres on proportionality, that is, on ensuring that the decision interferes with the relevant Charter guarantee no more than is necessary given the statutory objectives”. The Court went on to observe that “[i]f the decision is disproportionately impairing of the guarantee, it is unreasonable.

If, on the other hand, it reflects a proper balance of the mandate with Charter protection, it is a reasonable one”: at paragraph 7. [ 39 ] A review of the passport cases decided by this Court and by the Federal Court of Appeal confirms that, almost without exception, a five-year period of passport ineligibility is imposed once it is determined that there has been misconduct, including providing false or misleading information in a passport application: Kamel No. 2; Abdi v. Canada (Attorney General) , 2012 FC 642 , [2012] F.C.J. No. 945 (QL); Allen v.

Canada (Attorney General) , 2015 FC 213 , 476 F.T.R. 116; Brar v. Canada (Attorney General) , 2014 FC 763 , 460 F.T.R. 248; Desmond De Hoedt v. Canada (Citizenship and Immigration) , 2014 FC 829 , 462 F.T.R. 162; Dias v. Canada (Attorney General) , 2014 FC 64 , [2014] 4 F.C.R. 915, 466 N.R. 80, affd 2014 FCA 195 , 30 Imm. L.R. (4th) 47, [2014] F.C.J. No. 958 (QL); Fontaine v. Canada (Attorney General) , 2016 FC 376 , [2016] F.C.J. No. 343 (QL); Gomravi v. Canada (Attorney General) , 2013 FC 1044 , 441 F.T.R. 28; Latifi v. Canada (Attorney General) , 2013 FC 939 , [2013] F.C.J. No. 975 (QL); Lipskaia v.

Canada (Attorney General) , 2016 FC 526 , [2016] F.C.J. No. 489 (QL); Mikhail v. Canada (Attorney General) , 2013 FC 724 , 435 F.T.R. 235; Okhionkpanmwonyi v. Canada (Attorney General) , 2011 FC 1129 , [2011] F.C.J. No. 1389 (QL); Eastwood v. Canada also referred to as Saint-Vil v. Canada (Attorney General) , 2014 FC 48 , 446 F.T.R. 79; Sathasivam v. Canada (Attorney General) , 2013 FC 419 , 431 F.T.R. 261; Simmonds v. Canada (Attorney General) , 2013 FC 967 , 439 F.T.R. 206; Slaeman v. Canada (Attorney General) , 2012 FC 641 , 412 F.T.R. 103; Villamil v.

Canada (Attorney General) , 2013 FC 686 , 435 F.T.R. 88; Wong v. Canada (Attorney General) , 2017 FC 152 , [2017] F.C.J. No. 177 (QL). [ 40 ] While the same period of suspension of passport services was imposed in each of these cases, they cover a wide range of misconduct. Virtually all of this misconduct was far more serious than that of Ms.

Thelwell—misconduct that in many cases was clearly intended to allow non-Canadians to use Canadian passports in order to gain unlawful entry to this country, thereby compromising the integrity of the Canadian passport system and potentially threatening the national security of this country.

[ 41 ] For example, Kamel No. 2 involved an individual who had been convicted in France of membership in a criminal organization for the purpose of preparing a terrorist act and complicity in the forgery of three passports that he had brought from Canada. The French Court described Mr. Kamel as the “principal organizer of international networks determined to prepare attacks and procure weapons and passports for terrorists acting throughout the world” for which Mr. Kamel was sentenced to eight years imprisonment and permanent exclusion from France: at paragraph 6.

Despite the gravity of the circumstances in Kamel No. 2, a five-year period of suspension of passport services was imposed in that case. [ 42 ] The applicants in Slaeman v. Canada [cited above] were each paid US$10 000 to allow foreign nationals to use their Canadian passports.

The applicants then provided false information to Canadian passport officials in support of their applications for replacement passports. [ 43 ] Abdi , De Hoedt , Dias , Gomravi , Latifi , Mikhail , Okhionkpanmwonyi and Sathasivam all involved Canadian citizens who were facilitating or attempting to facilitate travel by foreign nationals on false Canadian passports.

Like Kamel No. 2 and Slaeman , these cases raised significant security concerns, and negatively affected the integrity of the Canadian passport system. [ 44 ] Brar , Eastwood , Lipskaia and Wong were cases where individuals tried to obtain multiple Canadian passports in different names, once again potentially undermining the integrity of the Canadian passport system and jeopardizing our national security. [ 45 ] In Simmonds and Villamil , applicants were seeking passports for their children, in breach of the terms of custody orders. [ 46 ] It is true that in Fontaine , above, this Court upheld the imposition of a five-year period of passport ineligibility in a factual situation that was similar to that in Ms.

Thelwell’s case. However, Mr. Fontaine failed to respond to correspondence from the Passport Integrity Branch, and he provided no information regarding his personal circumstances or any submissions with respect to the appropriate period of passport ineligibility that should be imposed on him before a decision was made in that regard.

There were thus no countervailing considerations that had to be weighed in arriving at an appropriate period of passport ineligibility in the Fontaine case. [ 47 ] I have only been able to identify three cases where something less than a five-year period of passport ineligibility was imposed. A four-year period of passport ineligibility was imposed in Mbala v. Canada (Attorney General) , 2014 FC 107 , 447 F.T.R. 121.

In that case, the applicant admitted to submitting false or misleading information to obtain a passport issued in his name with his brother’s photo in order to facilitate his illegal entry into Canada. Once again, the applicant’s actions had the potential to undermine the integrity of the Canadian passport system, even though the actions were taken for allegedly humanitarian reasons. [ 48 ] A four-year period of passport ineligibility was also imposed in Krivicky v. Canada (Attorney General) , 2013 FC 1236 , [2013] F.C.J. No. 1335 (QL).

The facts of this case are not discussed in any detail in the Court’s decision, but it noted that the evidence before it was “sufficient to find that the applicant participated in a sham relating to the issuance of a passport”: at paragraph 12. [ 49 ] Finally, a four-year period of passport ineligibility had been imposed in Siska v. Passport Canada , 2014 FC 298 , [2014] F.C.J. No. 326 (QL).

In that case, the applicant had attempted to use a Canadian passport to assist her in committing the indictable offence of possessing a forged passport and of attempting to use a forged or altered document for the purpose of entering Canada. The applicant’s actions thus once again undermined the integrity of the Canadian passport system and potentially raised national security concerns.

An application for judicial review of this decision was granted by this Court for reasons that are not germane to the analysis in this case. [ 50 ] Making a false statement in a passport application is undoubtedly a serious matter, and the sanction for such misconduct must reflect the gravity of the matter. That said, Doré requires decision makers to balance the severity of the interference with the individual’s Charter-protected rights against the objectives of the program in question.

This type of individualized assessment was absent in this case, with the result that it cannot be said that the imposition of a five-year period of passport ineligibility reflects a proportionate restriction on Ms. Thelwell’s Charter-protected mobility rights. [ 51 ] Ms. Thelwell was 22 years old when she filed her passport application. She is a Canadian citizen, and there is no suggestion that she was not otherwise entitled to a Canadian passport.

Nor is there any suggestion that she intended to use her passport for any improper or unlawful purposes that might have undermined the integrity of the Canadian passport system or implicated Canada’s national security. Without in any way condoning Ms. Thelwell’s conduct, the gravity of her misconduct was nowhere near the order of magnitude of the misconduct of other individuals who received four- or five-year suspensions of passport services. [ 52 ] Ms.

Thelwell also provided the Passport Integrity Branch with information regarding her mental health, and the shame that she evidently felt with respect to the criminal charges that she had faced. She also provided substantial evidence with respect to the devastating impact that a suspension of passport services would have on her musical career. There is, however, no indication in the reasons provided by the Passport Integrity Branch that it engaged with any of this evidence in any meaningful way. Nor did it explain why it was reasonably necessary to refuse Ms.

Thelwell a passport for five years in order to preserve the integrity of the Canadian passport system. It simply noted that “courts have found five years to be a reasonable period in light of the facts on which those cases were decided”—facts, that, as I have already noted, were very different than the facts of this case. [ 53 ] Finally, while it is true that the negative impact of the refusal of passport services is somewhat mitigated by the fact that Ms.

Thelwell can apply for a limited validity passport with geographical restrictions for urgent, compelling and compassionate reasons, such as a life-threatening illness or death in the family, this does not address the infringement on her Charter-protected right to leave and re-enter Canada for other reasons. [ 54 ] The Federal Court of Appeal noted in Kamel No. 2 that the refusal of passport services was mitigated by the possibility of applying for a limited validity passport for urgent and compassionate reasons.

However, the option of applying for a limited validity passport is not a safety valve that renders any refusal of passport services, imposed for any reason, of any duration, reasonable. In Kamel No. 2, the Court concluded that there was a “ causal link between national security and the Minister’s refusal to issue a passport to Mr. Kamel, who was sentenced in France for crimes directly related to terrorism, including the counterfeiting of passports” (my emphasis): paragraph 48.

It was within this context that the Court concluded that the possibility of obtaining a limited validity travel document provided sufficient evidence of proportionality.

[ 55 ] Ms. Thelwell’s situation is distinguishable. As discussed above, in this case the Passport Integrity Branch failed to show a causal link between the five-year refusal of services imposed on Ms. Thelwell and the need to preserve the integrity of the Canadian passport system. As I have determined that a five-year refusal of passport services was a disproportionate infringement of Ms. Thelwell’s Charter- protected mobility rights, in these circumstances, the possibility of applying for a limited validity travel document for urgent and compassionate reasons does not sufficiently mitigate this interference. VI.

Conclusion [ 56 ] For these reasons, I am satisfied that the Passport Integrity Branch failed to carry out the necessary analysis in balancing the severity of the interference with Ms. Thelwell’s Charter-protected mobility rights with the objectives of the Passport Program. Consequently, her application for judicial review will be granted. In accordance with the agreement of the parties, Ms. Thelwell shall have her costs fixed in the amount of $2000. VII. The Request for Directions [ 57 ] Ms.

Thelwell asks that if her application for judicial review is granted, that the matter be returned to the Passport Integrity Branch with Directions. These include Directions that Ms. Thelwell be provided with a period of 30 days in which to submit new evidence and arguments, and that the Passport Integrity Branch be required to render a decision within 60 days of the date on which it receives any new evidence and arguments from Ms. Thelwell, or is advised that no new evidence or arguments will be provided. I note that Justice Southcott provided similar Directions in relation to Ms.

Thelwell’s earlier application for judicial review and I am prepared to issue such Directions in this case. [ 58 ] Ms. Thelwell also asks that the Passport Integrity Branch be directed to explicitly consider her reasons for what she calls “the omission”, as well as the impact that the refusal of passport services will have on her career and whether any further limitations on Ms.

Thelwell’s rights under subsection 6(1) of the Charter are absolutely necessary to protect national security, public order, public health or morals, or the rights and freedoms of others. [ 59 ] The obligations on the Passport Integrity Branch to consider the Charter-protected rights of passport applicants in determining whether a period of passport ineligibility is appropriate are clearly set out in the jurisprudence, including my reasons in this case. It is thus unnecessary to direct the Passport Integrity Branch to comply with the law. JUDGMENT THIS COURT’S JUDGMENT is that 1.

The application for judicial review is granted; 2. The January 23, 2017 decision of the Passport Integrity Branch is set aside and the matter is remitted to a different decision maker for reconsideration; 3. Within 30 days of this judgment, Ms. Thelwell may submit additional evidence and arguments to the Passport Integrity Branch or advise the Passport Integrity Branch that no new evidence or arguments will be provided; 4. The Passport Program shall make a decision within 60 days of the date it receives any new evidence and arguments from Ms.

Thelwell or is advised that no new evidence or arguments will be provided; and 5. Ms. Thelwell shall have her costs of this application fixed in the amount of $2000.