Thursday, January 31, 2013


Applicants are reminded that they bear the onus of providing sufficient evidence of relatives in Canada when claiming points for adaptability. See case below:

El Sherbiny v. Canada (Minister of Citizenship and Immigration)
Between Tamer El Sherbiny, Applicant, and
Minister of Citizenship and Immigration, Respondent

[2013] F.C.J. No. 50

2013 FC 69

Docket IMM-4157-12

 Federal Court
Montréal, Quebec

Martineau J.

Heard: January 16, 2013.
Judgment: January 24, 2013.

(16 paras.)


1     MARTINEAU J.:-- This is an application for the judicial review of a decision of a visa officer [officer] of Citizenship and Immigration Canada [CIC], dated March 11, 2012, which refused the applicant's permanent resident visa application [application] under the Federal Skilled Worker [FSW] class.

2     The applicant, Mr. Tamer Mohamed Shawky Ahmad El Sherbiny, is a citizen of Egypt. He submitted his application on November 23, 2009 under the FSW category as a Specialist Physician (NOC code 3111). The application was assessed by the officer in accordance with the selection criteria and point system stipulated in the Immigration and Refugee Protection Regulations, SOR/2002-227 [Regulations].

3     In particular, under the "Adaptability" criteria, the applicant was not awarded the 5 possible points for a family relationship in Canada, even though the applicant had listed Mr. Ahmed Mohamed Shawky Ahmed Ibrahim El Sherbiny [putative brother] as his brother and a permanent resident living in Canada.

4     According to the Computer Assisted Immigration Processing System [CAIPS] notes, on March 8, 2012, the officer noted the following:


·       * 

The passport pages, whilst being issued two years [sic], appear to have been issued by the same person; as indicated by the penmanship. 

·       * 

PI has a birth certificate on file and there seems to be no reason to assume that his brother does not have one, [or in other words, as reformulated by the Court: "Applicant provided a birth certificate, but did not provide his brother's birth certificate."] 

·       * 

I am not satisfied that this represent [sic] evidence of an eligible family relationship. 

5     It turns out that the officer awarded the applicant a total of 63 points. The minimum number of points required by the Minister for the application to succeed is 67. As a result, the application was refused by the officer. Had the officer recognized the applicant's alleged family relationship to the putative brother living in Canada, the applicant would have likely obtained the 5 extra points he needed for his application to succeed.

6     On one hand, an applicant bears the onus of providing adequate and sufficient evidence in support of his application, which means that the immigration officer is under no obligation to request further clarification from an applicant if he or she finds there is not enough evidence initially submitted. On the other hand, where there is a question related to the credibility, accuracy, or genuineness of the information an applicant has submitted, then the officer must give the applicant the opportunity to respond to the officer's concerns, but the credibility issue must be determinative.

7     Considering that the applicable standard of fairness is relatively low in the case of a visa application, I am not satisfied, on a balance of probabilities, that there has been a breach to procedural fairness. Moreover, the decision taken by the officer is not unreasonable in the circumstances.

8     The parties disagree on the interpretation to be given to the reasons found in the CAIPS notes. When read as a whole, I find that the officer's decision of whether or not to award the 5 points in question was based, on a balance of probabilities, as to whether or not the applicant was related to the putative brother, living in Canada as a permanent resident. In particular, I do not find that the doubts expressed in the CAIPS notes, if any, with respect to the authenticity of the applicant and the putative brother's passports is wholly determinative of the matter. Otherwise, the officer would not have also spoken of the failure to provide the brother's birth certificate. In my humble opinion, the officer simply concluded that the applicant did not supply sufficient documentation to establish that an eligible family relationship exists.

9     In this instance, on December 2, 2009, CIC's Centralized Intake Office sent the applicant a notice via email with information explaining how to submit a completed application in addition to instructions pertaining to supporting documents to be included with the application. I agree with the respondent that the applicant was informed, at this point, of the importance of submitting full actual documentation and was notified that his final eligibility would be determined based on the documentation filed. The same email pointed the applicant towards the website providing forms specific to the particular visa office as well as a list of all supporting documents the visa office required ( n.asp).

10     In the case at bar, I find that the officer has acted in accordance with the usual and standard procedure in these types of cases. I do not accept any suggestion made by applicant's counsel at the hearing that the officer should have conducted an interview. The procedure referred to in the OP 6A manual in force at the time is only a suggested guideline and the exercise of the officer's discretion depends on a number of factors. Each situation must be considered on its own. In this particular case, considering that the best proof of relationship would be the filing of the birth certificate of the putative brother instead of his passport, there was no legitimate expectation that an interview was required.

11     In particular, the respondent has drawn the Court's attention to the document checklist available to the applicant and his immigration consultant on the website at that time: Application for Permanent Residence - Skilled Workers - Visa Office Specific Instructions - Cairo - IMM7011 E (10-2009). Section 5 of this checklist outlines the documents necessary for "Proof of Relationship in Canada". It reads as follows:




·       * 

Proof of relationship to your close relative in Canada, such as birth, marriage or adoption certificates. 

·       * 

If your close relative is a permanent resident of Canada: photocopy of his or her Record of landing (IMM 1000), Confirmation of Permanent Residence or Permanent resident Card. 

·       * 

If your close relative is a Canadian citizen: proof of Canadian citizenship, such as a photocopy of pages of a Canadian passport or Canadian citizenship card. 

12     In the case at bar, documents included by the applicant in his application as proof of relationship to the close relative in Canada were simply copies of his passport and the putative brother's passport as well as the putative brother's permanent resident card. The names on the passports only show that the applicant and the putative brother apparently share the same family name (El Sherbiny) and that the father apparently has the same first name as them (Mohamed Shawky Ahmed), although the elements of the name are not necessarily in the same order. Further corroboration and proof would be warranted in this case. Unfortunately, the applicant did not provide a copy of the putative brother's birth certificate.

13     It was entirely within the officer's discretion to find the evidence submitted by the applicant inconclusive. According to the applicant, it is a widely known custom for Arabic individuals to carry their father's name within their own name. Be that as it may, there is no evidence on record that such custom was brought to the attention of the officer, and I cannot assume that the officer was cognizant of same. Moreover, while both the applicant and respondent agree that there is no legal requirement to submit a birth certificate, it is clear from the instructions that this was the quality and type of proof that CIC expected. The evaluation of the evidence rests with the officer. Courts should not be ready to interfere unless it is shown that the officer has acted arbitrarily in discarding relevant evidence or giving it very low weight.

14     As the applicant contends, assessing penmanship was clearly out the officer's specialized area of expertise, but I must agree with the respondent that the officer did not dismiss the application on the grounds that the two passports were unauthentic. Such a finding was never explicitly made by the officer, although the officer may have entertained some doubts. If the officer had concluded that the two passports were in fact not authentic, this would have been clearly indicated in the CAIPS notes. Accordingly, there would have been no reason for the officer to even process the application in the first place and to award points to the applicant.

15     Moreover, in final analysis, it cannot be concluded from the CAIPS notes that the officer rejected the application exclusively due to concerns relating to the authenticity of the passports submitted. Certainly, the applicant's omission to file a copy of the putative brother's birth certificate, a very important document to establish a family relationship, was a determinative factor. Thus, the exercise of the officer's discretion is not unreasonable in the circumstances, although this result may be unfortunate for the applicant who will have to submit a new application.

16     For these reasons, the application shall be dismissed. No serious questions of general importance were raised by the parties and none shall be certified by the Court.


THIS COURT'S JUDGMENT is that the application is dismissed. No question is certified.


Wednesday, January 30, 2013


The Ontario Court of Appeal limited and clarified the limits of flexibility n sentencing to take into consideration the immigration consequences of criminal convictions, where the result would be patently unreasonable and the sentence would be unfit.

R. v. R.B.

Between Her Majesty the Queen, Respondent, and
R.B., Appellant

[2013] O.J. No. 278

2013 ONCA 36

Docket: C52908

 Ontario Court of Appeal
Toronto, Ontario

J.I. Laskin, H.S. LaForme and A. Hoy JJ.A.

Heard: January 9, 2013.
Judgment: January 23, 2013.

(33 paras.)

Criminal law -- Criminal Code offences -- Sexual offences, public morals, disorderly conduct and nuisances -- Sexual offences -- Sexual interference -- Invitation to sexual touching -- Sexual exploitation -- Offences against person and reputation -- Assaults -- Sexual assault -- Appeal by accused from conviction for multiple sexual offences dismissed -- Accused was found to have repeatedly abused niece between 1988 and 1997 when niece was between six and 14 years of age -- Misconduct progressed from touching to intercourse -- Niece disclosed abuse to mother in 2000 and reported it to police in 2002 and 2007 -- Trial judge rejected accused's evidence denying abuse and contending his rejection of niece's infatuation led her to fabricate allegations -- No error in trial judge's analysis established -- Conviction for sexual interference stayed on basis of Kienapple principle.
 Criminal law -- Sentencing -- Criminal Code offences -- Sexual offences, public morals, disorderly conduct and nuisances -- Sexual offences -- Invitation to sexual touching -- Sexual exploitation -- Offences against person and reputation -- Assaults -- Sexual assault -- Particular sanctions -- Imprisonment -- Concurrent sentences -- Sentencing considerations -- Totality principle -- Offence involving breach of trust -- Sexual offences against children -- Seriousness of offence -- Deportation -- Procedure -- Appeals -- Appeal by accused from sentence for multiple sexual offences dismissed -- Accused was found to have repeatedly abused niece between 1988 and 1997 when niece was between six and 14 years of age -- Misconduct progressed from touching to intercourse -- Accused received five-year global sentence comprised of concurrent sentences -- He sought to have constituent sentences shortened but made consecutive to preserve right to argue against deportation with global sentence remaining unchanged -- Sentencing process could not be used to circumvent immigration provisions and policies -- Sentence as constructed was fit and complied with totality principle.

Appeal by the accused, RB, from a conviction and sentence for multiple sexual offences. The accused was a permanent resident of Canada from El Salvador and the complainant's uncle. Sexual misconduct commenced in 1988 when the complainant was six years of age and continued until 1997. The sexual contact progressed from touching to intercourse. The complainant reported the conduct to her mother in 2000 when she was 18 years of age. She reported it to police in 2002 when she was 20 and gave a statement to police in 2007 at age 25. The accused testified at trial and denied the allegations. He contended that the complainant was infatuated with him and fabricated the allegations after he rejected her. The trial judge rejected the accused's evidence and found that it did not raise a reasonable doubt, as it was unlikely the complainant would fabricate allegations in response to a rejection at age 14. The judge accepted the complainant's evidence as credible and reliable and noted that the delay in disclosing the conduct was not uncommon. The accused was convicted of sexual assault, sexual interference, invitation to sexual touching and sexual exploitation. He was sentenced to five years' imprisonment comprised of four concurrent sentences. The accused appealed the conviction and the sentence. He did not argue against the resulting five-year term, but rather sought to have the constituent concurrent sentences reduced in length and made consecutive in order to preserve his right to argue against his deportation from Canada.

HELD: Appeal dismissed. The conviction for sexual interference was stayed based on an application of the Kienapple principle. Otherwise, there was no error in the trial judge's analysis or decisions on either of the issues of the complainant's motive to fabricate or the complainant's disclosure. The conclusions were supported by the trial judge's lengthy reasons for judgment. The loss of a potential remedy against a deportation order was not a mitigating factor on sentence. Nor could the sentencing process be used to circumvent the provisions and policies of the Immigration and Refugee Protection Act. To impose a sentence of two years or less for the sustained sexual assault of a young family member would be patently inadequate or artificial. Proper application of the totality principle supported the sentence imposed by the trial judge. Sentence: Five years' imprisonment for sexual assault; one-year concurrent for invitation to sexual touching; four years' concurrent for sexual exploitation.

Statutes, Regulations and Rules Cited:

Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 64(1), s. 112, s. 113, s. 114

Appeal From:

On appeal from the conviction entered on June 17, 2009 and the sentence imposed on October 21, 2009 by Justice Alison Harvison-Young of the Superior Court of Justice, sitting without a jury.

The judgment of the Court was delivered by

H.S. LaFORME J.A.:--


1     The appellant is married to the sister of the complainant's mother and is thereby the uncle of the complainant. The sexual offences were found to have started in 1988 when the complainant was 6 years old and they continued until 1997 when she was almost 15. Throughout that time the sexual contact progressed from sexual touching to intercourse.

2     The complainant reported the appellant's conduct to her mother in 2000 when she was 18; to the police on October 27, 2002 when she was 20; and she gave a statement to the police on October 31, 2007 when she was 25. In other words, her reporting of the assaults and her police statement were 4, 6 and 11 years after the last assault.


3     At trial it was essentially the evidence of the appellant and his wife against that of the complainant. The appellant's evidence was a denial of all the allegations. His testimony was that the complainant became infatuated with him and that when he rejected her, she made the false allegations. The result of the trial therefore turned on credibility findings and the application of R. v. W.(D.), [1991] 1 S.C.R. 742.

4     The trial judge rejected the appellant's denial of involvement and his assertions that the complainant was infatuated with him and his rejection of her when she was 14 motivated her to fabricate the allegations. She held that the evidence of the defence did not raise a reasonable doubt, particularly the suggestion that the complainant would fabricate allegations as a result of having been rejected at the age of 14. She found that there was no air of reality to this assertion.

5     Finally, the trial judge held that the rest of the evidence proved the appellant's guilt beyond a reasonable doubt. She accepted the complainant's evidence, finding her to be a credible and reliable witness. She found that details, such as which vehicle the offences occurred in, were understandably unclear and peripheral. She also found that the delay in reporting is not uncommon in such cases and did not negatively affect the complainant's credibility.

6     The trial judge convicted the 42 year old appellant of four historic sexual offences -- sexual assault, sexual interference, invitation to sexual touching, and sexual exploitation. She sentenced him to a "fair, fit and global" term of 5 years imprisonment. In addition, he was required to provide a DNA sample for registration for a period of twenty years and a weapons prohibition for a period of ten years.


7     On appeal the appellant submitted that the trial judge made three critical errors. First, he argued that the trial judge ought to have applied the principle in R. v. Kienapple, [1975] 1 S.C.R. 729. Second, he submitted that the trial judge improperly reversed the onus of proof on the issue of the complainant's motive to fabricate. Third, he submitted that the trial judge failed to consider all the circumstances in her assessment of the delay of the complainant in reporting the offences. Finally, the appellant argues that the sentence imposed is unfit.


·        (a) 

Conviction appeal

8     We did not call upon the Crown to respond to any of the grounds of appeal against the convictions. We allowed the appeal on the Kienapple issue and dismissed the balance of the appeal against convictions. The following brief reasons will sufficiently explain our decision.

9     The trial judge decided that the Kienapple principle -- that an accused cannot be convicted of two offences where they are both arise out of substantially the same facts -- should not apply in this case. On appeal, the appellant submitted that the principle ought to have applied and that count 2 should have been stayed.

10     Given the particularity in the indictment in count 1 (sexual assault) and count 2 (sexual interference) the Crown did not oppose this submission. We agreed, and accordingly the less serious offence in count 2 was stayed.

11     On the balance of the appeal against the convictions, we found no error in the trial judge's analysis or decisions on either of the issues of the complainant's motive to fabricate or the complainant's disclosure. The trial judge provided lengthy reasons for her decision and when those reasons are read as a whole, the appellant's assertions of errors are simply not present. Accordingly, apart from the Kienapple point, the appeal of the convictions was dismissed.


·        (b) 

Sentence appeal

12     We were, however, somewhat sympathetic to the appellant's submissions on his sentence appeal, and reserved our decision in order to consider it more fully. In the circumstances of this case, we saw some merit in the approach submitted by the appellant, which is set out more fully below. In essence, the totality of the sentence would not change and would therefore result in the appellant serving the period of imprisonment found by the trial judge to be appropriate. Moreover, we initially wondered whether the principles and objectives of sentencing would still be addressed and would continue to reflect the objective seriousness of the offences if we were to adopt the appellant's submissions.

13     However, after further consideration, and although my initial impressions of the merits remain, I conclude that the authorities limit our ability to accede to his request. The following will explain my reasons for this conclusion.

14     At the sentencing hearing defence counsel argued for a total sentence of 3-4 years imprisonment, while the Crown sought the maximum of 10 years. The trial judge noted that the appellant "came to Canada, having fled war-torn El Salvador in 1987 ..." She rejected the Crown's submission that this was a case deserving of the maximum sentence of 10 years. Also, it is clear that she did not consider this case to be one which required strict adherence to this court's decision in R. v. D.D. (2002), 58 O.R. (3d) 788 (C.A.).

15     As noted, the trial judge ultimately sentenced the appellant to a 5 year total term of imprisonment. She apportioned his imprisonment as follows: on count 1, sexual assault, 5 years; on count 2, sexual interference, 5 years (concurrent); on count 3, invitation to sexual touching, 1 year (concurrent); and on count 4, sexual exploitation, 4 years (concurrent). Given that count 2 is stayed, the sentence being considered by us is only in respect of counts 1, 3 and 5.

16     The only submission the appellant makes on appeal is that the totality of the sentence be apportioned differently from that of the trial judge. In other words, he does not argue against the five years total sentence. Rather, he asks this court to recognize the circumstances of the appellant and the consequences to his family and to assist them by imposing a maximum sentence of two years less a day for any of the counts of 1, 3 and 4, but have them run consecutively and maintain the total sentence of five years imprisonment. He submits that this would not impose a shorter sentence in totality and would be entirely in keeping with the principles and objectives of sentencing.

17     The appellant is a permanent resident of Canada, originally from El Salvador, and was convicted of criminal offences that resulted in his being ordered deported. Thus, one of the avenues by which he could challenge that deportation order has been lost by virtue of the length of the sentences imposed for those offences, namely more than two years imprisonment: see, Immigration and Refugee Protection Act, S.C. 2001, c. 27. Under s. 64(1) of the Act, the appellant has no right to appeal the deportation order if he receives a sentence of two years imprisonment or more for any single offence. While the trial judge may have been aware of the appellant's permanent resident status, she does not consider its implications in her sentencing analysis.


·        (i) 

The appellant's circumstances

18     I begin, as the appellant suggests, with the comments of Doherty J.A. in R. v. Hamilton (2004), 72 O.R. (3d) 1 (C.A.), at para. 87:


·        Sentencing is a very human process. Most attempts to describe the proper judicial approach to sentencing are as close to the actual process as a paint-by-numbers landscape is to the real thing. I begin by recognizing, as did the trial judge, that the fixing of a fit sentence is the product of the combined effects of the circumstances of the specific offence with the unique attributes of the specific offender. 

19     It is the unique attributes and circumstances of the appellant, which he says can allow this court to reflect "the human face of the sentencing process" by giving him another opportunity to remain in Canada with his family. He has been in Canada since 1987, his family is here and he wishes to access every opportunity to remain here with them. His statutory release date we were told is February 19, 2013.

20     The appellant says he left El Salvador in 1985 "because of the war", which the trial judge seems to accept. He originally entered the United States as a refugee and in 1987 came to Canada. He obtained landed immigrant status in Canada in 1991.

21     Also in 1991, the appellant married the sister of the complainant's mother and they have three children now aged 15, 17 and 19. He did not complete high school because, he says, of the war in El Salvador. Nevertheless, since in Canada he has learned to be an auto mechanic, which was his occupation at the time of these offences. He is the sole provider for his family.

22     In his pre-sentence report he is described by others as being "devoted to his wife and children" and has a close connection with his Christian church. He is a first time offender.


23     Generally speaking I think the overall principles and objectives of sentencing would still be addressed and would continue to reflect the objective seriousness of the offences if we were to adopt the appellant's submissions. However, there are also the interests of the Parliament of Canada and existing legal principles from this court that must be considered. Because of these considerations, I believe the Crown's arguments must prevail, and ultimately compel the dismissal of the appeal against sentence.

24     I acknowledge at the outset that the risk of deportation can be a factor to be considered in choosing among the appropriate sentencing responses and tailoring the sentence to best fit the crime and the offender: R. v. Melo (1975), 26 C.C.C. (2d) 510, at p. 516 (Ont. C.A.). However, the loss of a potential remedy against a deportation order is not a mitigating factor on sentence, nor can the sentencing process be used to circumvent the provisions and policies of the Immigration and Refugee Protection Act: Hamilton, at paras. 156 and 157. The Crown submits that circumventing the Act is what results here if the appellant's submissions are accepted. I agree.

25     The second submission by the Crown is that the appellant's suggested approach is simply not available even if the totality of the sentence is not disturbed. This is because, it is argued, the appropriate sentence for either of counts 1 and 4 in this case cannot reasonably be less than 5 years imprisonment. The Crown relies on several authorities including this court's decision in R. v. D.M., 111 O.R. (3d) 721. Once again I agree.

26     This court's fairly recent decision in R. v. Badhwar, 2011 ONCA 266 comments on both the Immigration and Refugee Protection Act issue and adjusting the length of sentences where an accused person has been convicted of multiple counts as here. Moldaver J.A. first described the adjustment of the length in counts without interfering with the total length of sentence as amounting to a benefit over someone convicted of a single count. He then goes on in para. 45 to caution that:


·        No matter how one chooses to come at the issue, the bottom line remains the same. Courts ought not to be imposing inadequate or artificial sentences at all, let alone for the purpose of circumventing Parliament's will on matters of immigration. 

27     Without commenting on whether or not there is any benefit to the appellant because of his multi-count convictions, the fact remains, a sentence of 2 years less a day for either of counts 1 or 4 would be patently "inadequate or artificial." This was made abundantly clear by this court in D.M. where the issue on appeal was the proper range of sentence for prolonged sexual assault including intercourse on a single child by a person in a position of trust. At para. 44, Feldman J.A. left little doubt about the appropriate range of sentence:


·        To conclude on the issue of the proper range of sentence, although sentencing is always an individualized process of decision-making, where there is prolonged sexual abuse and assault of a child, including penetration, by an adult in a position of trust, the minimum sentence will be five or six years in the penitentiary. 

28     It is important to recall that Feldman J.A. observed that the reason the courts were being called upon to focus on sentencing in this type of case is because of the increasing number of them over the past 20 years. Partly because of this increase, the courts' strict sentencing has evolved to respond to it: see D.M., at paras. 24-26. The appellant in our case was found to have committed sexual offences against his niece from 1988 when she was 6 years old continuously until 1997 when she was almost 15. And as I noted at the outset, the sexual assaults progressed from sexual touching to intercourse.

29     Finally, I want to comment briefly on the principle of totality: i.e. a series of sentences, each properly imposed in relation to the offence to which it relates, is on the whole just and appropriate. When this principle is properly understood and applied to facts of the appellant's case, it will be seen that it does not assist him.

30     The proper approach to applying the principle of totality on sentencing is to first identify the most serious part of the accusations or offences made against the person that resulted in the criminal offenses he or she was charged with. Next, the court is to determine the total sentence to be imposed, and then to impose sentences with respect to each offence that they add up to the total sentence. In doing so, the sentence for each offence must properly reflect the most serious part of the overall criminal conduct and must reflect the proper sentence for that offence. At this stage the court will then decide whether a particular sentence should be consecutive or concurrent to the other sentences imposed: R. v. Jewell; R. v. Gramlick, [1995] O.J. No. 2213 (Ont. C.A.), at para. 27.

31     Once again, in the appellant's case, the most serious part of the offences is the sexual assault of his niece reflected in count 1. And, as I explained, this has a sentencing range that begins at least at 5 years. To accept the appellant's submissions would require the imposition of a sentence that is inadequate or artificial. Although sympathetic to the appellant's concerns to remain in Canada with his family, I believe this court is required to dismiss the appeal against sentence.


32     For these reasons I would dismiss the appeal against convictions. I would grant leave to appeal the sentence, but I would dismiss it.

33     I would conclude by noting that although the appellant may be denied his right of appeal to the Immigration Appeal Division as a consequence of this result, he is not entirely without further recourse. The appellant still has the right to apply to the Minister of Public Safety and Emergency Preparedness for protection: Immigration and Refugee Protection Act, at ss. 112-114.

J.I. LASKIN J.A.:-- I agree.
A. HOY J.A.:-- I agree.


Airport security justifies teh denial of security clearance to worker caught in drug raid. Federal court dismissed the application for review with cousts, an unusual move.

Thep-Outhainthany v. Canada (Attorney General)

Between Marilyn Thep-Outhainthany, Applicant, and
Attorney General of Canada, Respondent

[2013] F.C.J. No. 44

2013 FC 59

Docket T-476-12

 Federal Court
Ottawa, Ontario

Rennie J.

Heard: December 20, 2012.
Judgment: January 23, 2013.

(33 paras.)


1     RENNIE J.:-- The applicant seeks to set aside a decision of the Minister of Transport, Infrastructure and Communities (the Minister) dated February 7, 2012 denying the applicant transportation security clearance at the Vancouver International Airport. For the reasons that follow this application is dismissed.


2     Airport security is governed by the Aeronautics Act, RSC, 1985, c A-2 (the Aeronautics Act) and the Canadian Aviation Security Regulations, 2012 (SOR /2011-318) (the Regulations). The Regulations provide that individuals who work in the restricted areas of an airport must have a security clearance. Section 4.8 of the Aeronautics Act grants the Minister the discretion to grant or refuse that clearance.

3     The Transportation Security Clearance Program Policy (the Security Policy) sets out the process for obtaining security clearance. Applicants must undergo a comprehensive background check that includes a criminal record check and a review of the files of law enforcement agencies. If adverse information is uncovered an advisory body, comprised of government officials, reviews the matter and makes a recommendation to the Minister.

4     On October 3, 2010, the applicant applied for security clearance as a requirement of her continued employment with Westjet. During her background check the Criminal Intelligence Branch of the Royal Canadian Mounted Police (RCMP) advised that the applicant had been involved in a drug investigation.

5     While I will discuss the discrepancy in the date of the critical events that underlie the decision to deny the applicant a security clearance, on either December 22, 2006 or May 1, 2007, the applicant and her husband drove to a house in Surrey, British Columbia. The applicant remained outside the house in the passenger seat of her vehicle while her husband went inside to run an errand. At that moment the police were in the process of, or began, executing a search warrant for the house. By any description, the events that ensued were dramatic. Multiple suspects were arrested, some in the house, some were chased and arrested outside, weapons were drawn, and a dog was shot. The applicant was arrested as well as her husband.

6     The police subsequently obtained a search warrant for the vehicle. While registered to the applicant's mother the applicant was listed as the principle operator. The police found a hidden compartment in the vehicle containing a substantial amount of cocaine, along with heroin, methamphetamine, ecstasy and a loaded pistol.

7     The applicant and her husband were charged with four counts of procession for the purposes of trafficking and one count of possession of a loaded prohibited firearm. Her husband pled guilty and the prosecutor stayed the charges against the applicant. She denied, and continued to deny throughout the security clearance process, any knowledge of her husband's criminal activities.

8     On September 23, 2011, the applicant received a letter informing her that this information raised concerns about her suitability for security clearance. She was invited to provide additional information. She provided a statement and evidence, including positive reference letters along with documents establishing her legal separation from her husband and the decree nisi. The separation from her husband began on January 31, 2011.

Decision Under Review

9     The Minister denied the security clearance based on the recommendation from the Advisory Body. The Advisory Body noted the incident involved a large amount of cocaine and other drugs along with a loaded prohibited firearm. The Advisory Body concluded that the applicant, in the language of the policy, may be prone or induced to commit an act or assist or abet any person to commit an act that might unlawfully interfere with civil aviation.

10     The applicant contends however that two errors of law were committed. First, the Minister erred in considering evidence of the stayed charges in the face of her record having been expunged. Second, she contends that it was legally impossible to conclude, on the facts, that the applicant may be prone or induced to commit an act or assist or abet any person to commit an act that may unlawfully interfere with civil aviation.


11     This judicial review raises the issue whether the Minister erred in denying the applicant a security certificate. In recognition of the specialized and discretionary nature of this decision the standard of review is reasonableness: Clue v Canada (Attorney General), 2011 FC 323, para 14. Errors of law are reviewable on a standard of correctness.

12     The applicant contends that, in light of what are characterized as egregious errors in the decision, the decision to deny the recommendation was not, as a matter of law, open to the Minister. In my view, the standard of review remains that of reasonableness, regardless how the factual errors are viewed. Even the most unreasonable of decisions does not transform the standard of review of reasonableness to correctness, in the sense that jurisdiction has been lost in the process. No question of law has been identified, nor has a legal issue or principle been identified which can be extracted from the legal and factual matrix.


Preliminary Issues

13     The applicant has included various exhibits to her affidavit which were not before the Minister [Exhibits A, B, E, I, K, and CC]. The applicant submits that this evidence is admissible because it provides background to the issues before the Court, and otherwise simply confirms evidence already in the record. However, the applicant has provided this evidence for the purpose of challenging certain information in the record before the Minister. In particular, the applicant seeks to demonstrate that the Minister had incorrect information regarding the date of her arrest and whether she tried to flee the police. As this evidence was previously available, it is not, strictly speaking, admissible. It goes beyond the scope of contextual or background evidence which is of assistance to the Court in understanding the issues: Sha v Canada (Citizenship and Immigration), 2010 FC 434. In view of the disposition of this case on the merits, this additional evidence, even if admitted, would not alter the outcome.

14     Additionally, there is some dispute between the parties as to what constitutes the Minister's reasons. The Minister's letter to the applicant states:


·       Please be advised that the Minister of Transport, Infrastructure and Communities, has refused your clearance based on the information in your file and the following recommendation from the Advisory Body: 


·       "The Advisory Body was unanimous in its recommendation to refuse the transportation security clearance. An in-depth review of the file, including the police report detailing a recent drug-related incident involving the applicant and her husband that included an extremely large amount of cocaine and other drugs, as well as a loaded prohibited firearm, led the Advisory Body to believe, on a balance of probabilities, that she may be prone or induced to commit an act or assist or abet any person to commit an act that my (sic) unlawfully interfere with civil aviation. Furthermore, the applicant's written explanation and supporting documentation did not provide sufficient information that would persuade the Advisory Body to recommend issuing a clearance." 

15     While it is brief, it clearly sets out the basis for the Minister's conclusion. The applicant has argued that an Advisory Board document titled "Key Points for Discussion" should also be considered part of the Minister's decision. This document is a summary of the Advisory Board's discussion. In my view, it forms an integral part of the reasons. Indeed, without it, the Minister's letter is arguably conclusionary. The document is, on its face, significant. It is titled "Key Points of Discussion" and the factors listed in the document were "noted" by the Advisory Body in formulating its recommendation. This document also formed part of the record that was before the Minister.


16     Section 4.8 of the Aeronautics Act grants broad discretion to the Minister:


·       4.8 The Minister may, for the purposes of this Act, grant or refuse to grant a security clearance to any person or suspend or cancel a security clearance. 

* * *


·       4.8 Le ministre peut, pour l'application de la présente loi, accorder, refuser, suspendre ou annuler une habilitation de sécurité. 

17     As this Court explained in Fontaine v Transport Canada Safety and Security, 2007 FC 1160, air safety is an issue of substantial importance and access to restricted areas is a privilege, not a right.

18     When applying the standard of reasonableness the Court looks to the existence of justification, transparency and intelligibility in the decision-marking process and whether the decision falls within the range of acceptable outcomes that are defensible on the facts and law: Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190.

19     In exercising his discretion under this section the Minister may consider any factor that he considers relevant: Fontaine, para 78. This includes criminal charges that do not result in a conviction and evidence about a person's character or propensities: Clue at para 20. The fact that the charges were stayed against the applicant is not determinative. Prosecutions proceed, or do not proceed, for a variety of reasons; hence the absence of a conviction is not determinative. In my view, a proper analogy can be made to inadmissibility proceedings under the Immigration and Refugee Protection Act, SC 2001, c 27. The mere fact of criminal charges is not probative but a Court can look at the underlying circumstances. In Thuraisingam v Canada (Minister of Citizenship and Immigration), 2004 FC 607 at paragraph 35, Justice Anne MacTavish wrote:


·       In my view, a distinction must be drawn between reliance on the fact that someone has been charged with a criminal offense, and reliance on the evidence that underlies the charges in question. The fact that someone has been charged with an offense proves nothing: it is simply an allegation. In contrast, the evidence underlying the charge may indeed be sufficient to provide the foundation for a good-faith opinion that an individual poses a present or future danger to others in Canada. 

20     Secondly, the absence of a criminal conviction cannot be determinative given the different standards of proof which prevail in the two discrete legal contexts. A criminal conviction is sustained on proof beyond a reasonable doubt. Denial of a security clearance requires only a reasonable belief, on a balance of probabilities, that a person may be prone to or induced to commit an act that may interfere with civil aviation.

21     This disposes of the applicant's submission that the Minister was prohibited from considering her arrest because she had the incident expunged from the Canadian Police Information Centre (CPIC), the federal repository for criminal and non-criminal records. The absence of a criminal record does not purge her name from all and any sources that might be consulted on a background check for civil purposes. As stated above, the Minister may consider any evidence that he considers relevant. The Minister not only relies on the results of a CPIC search, but also the records of the Canadian Security Intelligence Service (CSIS) and the files of various law enforcement agencies. While the applicant's information may have been removed from CPIC, it was still in the RCMP records.

22     In concluding, it is noteworthy that the Application for Restricted Area Identity Card, Part E requests the applicant's consent. It provides:


·       For security clearance purposes under section 4.8 of the Aeronautics Act and the Transportation Security Clearance Program for airport workers and pursuant to Part 5 of the Marine Transportation Security Regulations for maritime facilities workers (hereinafter "security clearance purposes"), I consent to the disclosure by Transport Canada to the Royal Canadian Mounted Police, the Canadian Security Intelligence Service, Citizenship and Immigration Canada and law enforcement agencies, of any and all information provided by me in support of this application. Without limiting the generality of the foregoing, this includes information relating to my date of birth, education, residential history, employment history, and immigration and citizenship status in Canada. I also consent to the disclosure and use of my fingerprints and facial image for identification purposes. 


·       For security clearance purposes, I hereby authorize Transport Canada to seek, verify, assess, collect and retain any and all information relevant to this application including any criminal records and any and all information contained in law enforcement files, including intelligence gathered for law enforcement purposes, and information with respect to my immigration and citizenship status, as well as any and all information that will facilitate the conduct of a security assessment. 

23     The applicant consented to the Minister undertaking the inquiries that lead to his decision. The Minister was entitled under the terms of the Security Policy to consider conduct short of a conviction. Therefore, the question becomes whether this incident could reasonably lead the Minister to deny the applicant a security clearance.

24     As noted, the standard of proof required to support a reasonable belief that a person may be induced to interfere with the security of civil aviation is lower than what is required for a criminal conviction. The Minister must have reasonable grounds to believe that the applicant may be prone or induced to commit an act or assist or abet any person to commit an act that may unlawfully interfere with civil aviation: Clue at para 20.

25     In Fontaine, the Minister cancelled Mr. Fontaine's security clearance by reason of his past association with individuals who were members of a criminal organization. Mr. Fontaine emphasized that they were childhood friends and that he was not a member of that organization. This Court found that the Minister's decision was reasonable in those circumstances, as these individuals might have a negative influence on him.

26     In this case, the applicant's husband was implicated in a sophisticated dial-a-dope trafficking operation, and used a car of which she was the principle operator. That car included a secret compartment containing a variety of controlled substances and a loaded, prohibited firearm. While there may not have been sufficient evidence to convict the applicant, the facts reasonably support a belief she was either closely connected to this activity or wilfully blind to it.

27     Cocaine and heroin are imported into Canada and the applicant's access to a restricted area of an airport could attract the attention of her husband or his criminal associates. While the applicant is currently seeking a divorce, this evidence was not before the Minister when he reached his decision. At the time of the decision they had been separated for months.

28     The applicant has argued that the Advisory Board misunderstood certain evidence:


·       (1) 

Whether she fled the scene or stayed in her vehicle; 

·       (2) 

The date of her arrest; and 

·       (3) 

Whether she changed her name back to her original name in 2007. 

29     The Advisory Board noted that the applicant had said that she remained seated in the car but the RCMP report stated that she had attempted to flee. The Advisory Board did not make a finding of fact regarding whether or not she fled, but it noted the discrepancy.

30     I accept the applicant's argument that her conduct is a material consideration. Her conduct in fleeing or remaining in the passenger seat constitutes some evidence from which inferences could be drawn as to the extent of her knowledge of her husband's activities and of the contents of the vehicle. However, this factor must be situated in the context of the circumstances as a whole, and that of the other evidence. The secret compartment in the car, the loaded weapon, the absence of an explanation for her actions on the date of the arrest and the seriousness of the crime all provide ample support for the reasonableness of the conclusion, independent of the discrepancy. Put otherwise, the decision withstands the scrutiny of justification, transparency and intelligibility, whether the applicant fled or remained in the car.

31     The applicant provided evidence that the police incorrectly stated the date of her arrest. The police report provided to the Minister stated that she was arrested on December 22, 2006 whereas her evidence shows the date as May 1, 2007. Nothing turns on this clerical error. There is no dispute as to what, in general terms, happened.

32     Finally, while the applicant changed her name on November 17, 2009, the Advisory Board incorrectly stated that this change was "back to her original name" (emphasis added). There is no indication that the Minister's decision was based on this name change. This minor error in the Advisory Board's notes does not render the Minister's decision unreasonable.

33     The applicant also considers it unreasonable for the Advisory Board to have noted that, as the applicant lived with her husband, she must have known about his criminal activity. The drugs and weapon were found inside the vehicle that was registered with her as the principle operator. She was present with her husband when the search warrant was executed. The amount and variety of drugs recovered demonstrated that her husband had substantial involvement in serious criminal activity. These are grounds to support a reasonable belief that the applicant was either aware of or wilfully blind to her husband's illegal activities, such that the Security Policy criteria were engaged.


THIS COURT'S JUDGMENT is that the application for judicial review is dismissed, with costs.


Tuesday, January 29, 2013


Excellent editorial in the Wall Street Journal.

Review & Outlook: Immigration Breakout -

  • The Wall Street Journal

  • Immigration Breakout

    A promising Senate framework, if Obama really wants a deal.

    If President Obama wants a bipartisan immigration reform this year, the policy and political path is being laid out for him. That's the meaning of Monday's statement of reform principles from a bipartisan group of eight Senators across the political spectrum.
    The agreement is a breakthrough because it includes compromises from both Republicans and Democrats that, at least in principle, address the main obstacles that have killed reform in the past. The most politically potent of those issues is what to do about the 11 million illegals currently in the U.S. But more important for the country's future is admitting more immigrants, both high- and low-skilled, and creating a process that lets them enter and leave legally as economic opportunities ebb and flow. This will be the action to watch.


    Critics on the right assail the last big immigration reform, in 1986, and they have a point. That reform offered citizenship to current illegal immigrants but it failed to set up a process for future legal immigration to meet the needs of fast-moving labor markets. Thus it created an incentive for foreigners to arrive illegally and never leave lest they never be able to return to the U.S. if they did go home. Avoiding that mistake should be one of the main goals of this or any other immigration reform.

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    Editorial page editor Paul Gigot on the prospects for the Senate's bipartisan immigration proposal. Photos: Getty Images
    On that point, the Senate framework has promise but also a long way to go. For example, the statement says their legislation will "allow more lower-skilled immigrants to come here when our economy is creating jobs, and fewer when our economy is not creating jobs."
    Well, great, but the key is how that principle is implemented. If it means putting some government official or commission in charge of declaring that there is a "labor shortage" in an industry, it will be worse than the status quo. Political forces will control when such a shortage is declared, if ever. The better way is a large and robust guest-worker program that lets the flow of immigrants meet labor demands across the economy.
    When U.S. growth is slow, as it has been since the financial panic, fewer workers will come and many will leave. The net migration to the U.S. is estimated to have been flat for several years. But when growth recovers, a legal path to enter the U.S.—to obtain, say, a six-year work pass that would be transferable from job to job—would let immigrants respond quickly to genuine shortages without creating an incentive to stay illegally.
    This should be a priority for GOP reformers—both because it makes economic sense and because it will do more to reduce the flow of future illegal immigration than would another 100,000 border agents. The economic reality is that migrants are going to follow economic opportunities, legally or not. The trick is to give them ways to do so legally.
    This will also be the part of the bill most opposed by the AFL-CIO because unions don't want more workers who don't belong to unions. Senate Democrats gutted the guest-worker program during President George W. Bush's attempt at reform in 2007, and both Dick Durbin and then Senator Obama of Illinois were among the gutters.
    Associated Press
    President Barack Obama
    As for the millions of illegals already here, both sides have made important compromises. The four Republicans, led by Florida Senator Marco Rubio, have conceded that reform needs to include an ultimate path to citizenship. This drops the fantasy embraced by Mitt Romney and the restrictionist right that people who have been here for years and have deep family and economic roots are going to "self-deport."
    In return, the four Democrats, led by New York's Chuck Schumer and Mr. Durbin, have agreed to accept substantial enforcement guarantees and procedural hurdles before such a citizenship path would be open. This has been a sticking point for GOP cooperation and should help Republicans rebut the false charge that this amounts to an "amnesty."
    In Mr. Rubio's description, this path would require that illegals come out of the shadows, register for a special residence visa, pay a fine and back taxes, prove a work history, and then wait in line behind others who have already been waiting to get their green cards. Congress will debate the details, but the process could take as long as 15 years.
    A path to citizenship would also assist the process of assimilation that has been one of America's historic strengths. The U.S. should not want a permanent class of residents who can never be citizens and thus have less incentive to adapt to U.S. cultural mores, speak English, or move out of segregated ethnic enclaves.


    Which brings us back to Mr. Obama. The President will lay out his own reform principles Tuesday, but the question is whether he wants an achievement or a political issue. If he wants a genuine reform, the Senate framework shows how much Republicans have already moved his way. GOP leaders can read the 2012 exit polls, and thanks to the persuasion of Mr. Rubio, Jeb Bush and a few others, more conservatives are now more amenable to reform.
    Yet neither Mr. Obama nor his White House have reached out to Mr. Rubio, and many Democrats want to use the immigration issue to drive turnout in election after election. Their goal is to have a legislative dance and then blame Republicans for killing reform sometime in 2014.
    If that is Mr. Obama's real goal, he'll demand too much—by gutting the guest-worker program again or complicating it with too much bureaucracy, or by insisting on a quick and easy path to citizenship for illegals. Mr. Obama will have to decide if he wants a legacy of reform, or more partisanship.

    A version of this article appeared January 29, 2013, on page A14 in the U.S. edition of The Wall Street Journal, with the headline: Immigration Breakout.
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