Hrushka v. Canada (Minister of Foreign Affairs) et al., (2009) 340 F.T.R. 81 (FC)

• Judge: Hansen, J.
• Court: Federal Court (Canada)
• Case Date: September 09, 2008
• Jurisdiction: Canada (Federal)
• Citations: (2009), 340 F.T.R. 81 (FC);2009 FC 69

Hrushka v. Can. (2009), 340 F.T.R. 81 (FC)

MLB headnote and full text

Temp. Cite: [2009] F.T.R. TBEd. FE.020

David Allan Hrushka (applicant) v. The Minister of Foreign Affairs and Passpost Canada (respondent)

(T-2193-07; 2009 FC 69)

Indexed As: Hrushka v. Canada (Minister of Foreign Affairs) et al.

Federal Court

Hansen, J.

January 23, 2009.

Summary:

A Passport Canada Adjudicator ordered that passport services be withheld from the applicant for a period of three years. The applicant applied for judicial review.

The Federal Court allowed the application, holding that the Canadian Passport Order did not empower the Adjudicator to impose the stand alone sanction of withholding passport services. The court set aside the decision and remitted the matter for redetermination by a different Adjudicator.

Aliens - Topic 2623

Naturalization - Passports - Withholding passport services - A Passport Canada Adjudicator ordered that passport services be withheld from the applicant for a period of three years - The applicant applied for judicial review - The Federal Court allowed the application, holding that the Canadian Passport Order (the Order) did not empower the Adjudicator to impose the stand alone sanction of withholding passport services - The court rejected the respondent's argument that Passport Canada's authority to withhold passport services was found in s. 2 of the Order - Section 2 stated "'Passport Canada' means a section of the Department of Foreign Affairs and International Trade, wherever located, that has been charged by the Minister with the issuing, refusing, revoking, withholding, recovery and use of passports" - The provision was simply descriptive of a section within the Department of Foreign Affairs and International Trade "that has been" charged with certain responsibilities by the Minister - The language did not purport to confer on Passport Canada the authority to take any of the actions enumerated in the provision - Instead, the source of Passport Canada's discretionary authority was found within specific provisions of the Order - The Order did not explicitly describe the scope or conditions for the proper exercise of the purported authority to withhold passport services as a stand alone sanction - The absence of those details indicated that Passport Canada had not been empowered to withhold passport services as an independent penalty for misuse of a passport - The respondent's argument also ran contrary to the use and purpose of statutory definitions and recognized drafting conventions - A statutory definition did not typically have substantive content and the inclusion of substantive content in a definition was viewed as a drafting error - See paragraphs 14 to 18.

Aliens - Topic 2623

Naturalization - Passports - Withholding passport services - The Security Bureau of Passport Canada recommended to a Passport Canada Adjudicator that the applicant's passport be revoked pursuant to s. 10(2)(c) of the Canadian Passport Order (Order) and that passport services be withheld for five years - The Adjudicator determined that although the grounds to revoke the passport had been met, the recommendation in that regard had been rendered moot in light of the expiration of the passport - However, he ordered that passport services be withheld from the applicant for three years - The applicant applied for judicial review - The respondent argued, inter alia, that the authority to withhold passport services flowed logically from the authority to revoke a passport in order to give practical effect to the revocation - The Federal Court stated "Without deciding whether this assertion is sound in law, it does not assist the respondent in the circumstances of the present case. In my opinion, there is a distinction to be drawn between the withholding of passport services for a specified period of time in conjunction with a refusal or a revocation decision and the withholding of passport services as a stand alone sanction. Accordingly, powers associated with revocation may not be relied upon as the source of an independent sanction of withholding passport services" - See paragraph 19.

Statutes - Topic 2453

Interpretation - Interpretation of words and phrases - Interpretation and definition clauses - Effect of definition clause - [See first Aliens - Topic 2623 ].

Cases Noticed:

Khadr v. Canada (Attorney General), [2007] 2 F.C.R. 218; 293 F.T.R. 58; 2006 FC 727, refd to. [para. 22].

Statutes Noticed:

Canadian Passport Order, SI/81-86, sect. 2 [para. 14].

Authors and Works Noticed:

Bennion, Francis Alan Roscoe, Statutory Interpretation, generally [para. 16].

Uniform Law Conference of Canada, Drafting Conventions of the Uniform Law Conference of Canada, s. 21(2) [para. 17].

Sullivan, Ruth, Sullivan and Driedger on the Construction of Statutes (4th Ed. 2002), p. 51 [para. 16].

Counsel:

J. Cameron Prowse, for the applicant;

Stacey Dej and Yolande Viau, for the respondents.

Solicitors of Record:

Prowse Chowne, LLP, Edmonton, Alberta, for the applicant;

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the respondents.

This application was heard on September 9, 2008, at Edmonton, Alberta, before Hansen, J., of the Federal Court, who delivered the following decision on January 23, 2009.