T-714-86
Nafareih Mahtab (Applicant)
v.
Canada Employment and Immigration Commis
sion and Royal Canadian Mounted Police
(Respondents)
INDEXED AS: MAHTAR V. CANADA EMPLOYMENT AND IMMI
GRATION COMMISSION
Trial Division, Teitelbaum J.—Montreal, April
28; Ottawa, May 26, 1986.
Constitutional law — Charter of Rights — Criminal process
— Search or seizure — Immigration officer seizing applicant's
passport without warrant pursuant to s. 11 1(2)(6) Immigration
Act, 1976 — Applicant voluntarily giving passport to immi
gration officer at political refugee status inquiry — Seizure of
passport contrary to s. 8 Charter — Supremacy of Charter —
Prior authorization by warrant prerequisite for valid search
and seizure — Continued detention of passport seizure within
s. 8 — Seizure without warrant prima facie unreasonable —
Presumption of unreasonableness not rebutted — Canadian
Charter of Rights and Freedoms, being Part I of the Constitu
tion Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11
(U.K.), s. 8 — Immigration Act, 1976, S.C. 1976-77, c. 52, s.
111(2)(b) (as am. by S.C. 1980-81-82-83, c. 47, s. 23).
Immigration — Seizure of passport — Iranian citizen, using
Spanish passport to enter Canada — Claiming political
refugee status — Iranian passport voluntarily given to immi
gration officer at inquiry — Officer seizing passport without
warrant pursuant to s. 111(2)(b) Immigration Act, 1976 —
Passport allegedly in hands of RCMP — Seizure valid under
Immigration Act, 1976 as no warrant required — Seizure
contrary to s. 8 Charter as unreasonable — Passport ordered
returned — Seizure without warrant justified if risk person
and passport may disappear — Immigration Act, 1976, S.C.
1976-77, c. 52, s. 111(2)(b) (as am. by S.C. 1980-81-82-83, c.
47, s. 23) — Canadian Charter of Rights and Freedoms, being
Part I of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.), s. 8.
The applicant, an Iranian citizen, entered Canada using a
Spanish passport purchased on the black market. She admitted
having done so in order to circumvent Canadian law which
requires Iranian citizens to obtain a Canadian visa before
coming to Canada. Immediately upon landing, the applicant
requested political refugee status. At the special inquiry hear
ing held with respect to her claim, she voluntarily handed over
her Iranian passport to the immigration officer in the belief
that this was the custom. It is alleged that the official then
seized the passport without warrant by virtue of paragraph
111(2)(b) of the Immigration Act, 1976. The respondents
contend that the seizure was justified in that the applicant had
entered Canada using a false passport and that her Iranian
passport appeared to have been altered. The applicant moves
for an injunction ordering the respondents to advise as to where
the passport is and to return it. She also seeks damages. The
issue is whether the seizure effected under paragraph 111(2)(b)
is contrary to section 8 of the Charter as being unreasonable.
Held, the motion should be allowed in part. The respondents
are ordered to return the passport.
Paragraph 111(2)(b) of the Immigration Act, 1976 author
izes an immigration officer to seize and hold at a port of entry
or in Canada any documents where he has reasonable grounds
to believe that such action is required to facilitate the carrying
out of the provisions of the Act. Paragraph 111(2)(b) does not
require prior authorization in the form of a warrant. Therefore,
in so far as the Immigration Act, 1976 is concerned, the seizure
was validly effected.
The Court could not, however, come to the same conclusion
with respect to the Charter. As stated in Hunter et al. v.
Southam Inc., [1984] 2 S.C.R. 145, any law inconsistent with
the Constitution, the supreme law of Canada, is of no force or
effect. That case established that for a search and seizure to be
valid under Canadian law, prior authorization must be obtained
where feasible; "such authorization is a precondition for a valid
search and seizure". Osier J. in R. v. Zaharia and Church of
Scientology of Toronto (1985), 21 C.C.C. (3d) 118 (Ont.
H.C.) held that continued detention constitutes a seizure within
the meaning of section 8 of the Charter. In the case at bar,
although the passport was voluntarily given to the respondents,
its continued "detention" is a seizure.
Having regard to the facts of the case, it cannot be said that
the seizure of the passport without warrant was reasonable and
necessary. A seizure without warrant is prima fade unreason
able. The respondents have failed to show any proof as to why
it was impossible to obtain a warrant.
There may be circumstances where an immigration officer
will not be required to obtain a warrant before effecting a
seizure. One could imagine situations where, if the seizure is
not immediately made, the person and passport may disappear.
However, this is not the case here. The facts show that it would
have been feasible for the immigration officer to obtain a
warrant before seizing the passport.
CASES JUDICIALLY CONSIDERED
FOLLOWED:
Hunter et al. v. Southam Inc., [ 1984] 2 S.C.R. 145.
CONSIDERED:
R. v. Zaharia and Church of Scientology of Toronto
(1985), 21 C.C.C. (3d) 118 (Ont. H.C.).
REFERRED TO:
R. v. Jagodic and Vajagic (1985), 19 C.C.C. (3d) 305
(N.S.S.C.).
COUNSEL:
Jean- François Bertrand for applicant.
Suzanne Marcoux-Paquette for respondents.
SOLICITORS:
Jodoin & Noreau, Montreal, for applicant.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for order ren
dered in English by
TEITELBAUM J.: The applicant Nafareih
Mahtab, is asking me, in her present motion, to
order, by way of injunction, the respondents, the
Employment and Immigration Commission of
Canada and the Royal Canadian Mounted Police
to:
Order the respondents to report to the applicant on the follow
ing matters:
— Where her passport is;
— Who is responsible for her passport;
— What action will be taken regarding this passport;
Order the respondents either to lay charges relating to this
passport, to allow the applicant to defend her property, or
return the said property to her, and to do one of the foregoing
within fifteen (15) days of judgment herein;
Order the respondents, if neither of the two (2) actions men
tioned in the preceding conclusion can be taken, to furnish the
applicant with such Canadian travel documents as will allow
her freedom of action and movement equivalent to having her
passport;
Order the respondents jointly and severally to pay the applicant
the sum of $2,500 as liquidated damages:
— $1,000 as compensation for the trouble caused by the illegal
action of the respondents;
— $1,500 as compensation for the loss by the applicant of
enjoyment of her property, only if her passport can no longer
be returned to her;
The whole with costs against the respondents.
At the time of the hearing, the applicant aban
doned her request for damages. I believe that this
was a wise decision as a motion requesting an
injunction is not the proceeding in which to claim
monetary damages.
After the hearing concluded, it became clear to
me that what the applicant really wanted was an
order whereby the respondents would have to
return to her the passport seized by the immigra
tion official and, allegedly, presently in the hands
of the RCMP.
A brief résumé of the facts would be helpful in
giving a better understanding as to why this
motion for injunction became necessary.
The applicant, Nafareih Mahtab, an Iranian
citizen, on or about February 5, 1981 asked, while
in Iran, the Government of Iran for a passport so
as to be able to leave the country. The passport
was issued with an expiry date of February 5,
1984.
On or about July 16, 1983, more than two years
after the issuance of the passport, the applicant
left Iran to go to West Germany to visit with her
brother, the brother being a political refugee in
West Germany. The applicant decided to leave
West Germany on October 16, 1983 to go to
France. I assume that the applicant used her valid
Iranian passport to travel to France. According to
the affidavit filed by the applicant with her
motion, she states that her intention was to ask for
political refugee status in France.
During the hearing before me, I was told that
while in France, the applicant was a student. No
mention was made as to her supposed request for
refugee status, was it made, was it refused or was
it granted.
In that the applicant's passport (Iranian) was to
expire and did expire on February 5, 1984, the
applicant allegedly went to the Iranian Embassy in
Paris, France to ask for an extension of the expiry
date.
According to the applicant, she went to the
Iranian Embassy on February 5, 1984, the very
last day, handed in her passport, made her request
for the extension and was asked to return on
February 9, 1984. On February 9, 1984, she
returned to the Iranian Embassy, received her
passport and, without verifying the passport, left
with it.
The applicant then states that after leaving the
Embassy and while walking, she decided to look at
her passport and saw, she claims, that an error had
been made. While the passport was extended valid
ly according to the Iranian calendar, it was not
properly extended according to the "Gregorian
Calendar" that is, it was extended to 2/2/85
instead of 5/2/87.
Even if this were true, the passport was extend
ed to February 2, 1985, the original expiry date
being February 5, 1984.
The applicant claims because of this error, pass
port validity date extended to February 2, 1985
instead of February 5, 1987, she returned the
passport to the Iranian Embassy where a clerk of
the Embassy simply changed the date by writing
over the original date. That is, it was 2-2-1985 and
was changed to 5-2-1987 by simply writing a 5
over the first 2 and a 7 over the 5 in 1985. There is
also a notation to see page 11 of the passport. Page
11 of the passport states:
This passport is valid until 05.02.1987
Paris, 09.02.1984.
It should be noted that on page 9 of the passport
where the first change was made the date is
2-2-1985 or 5-2-1987. There is no "0" before the
numeral "2" or "5" as on page 11. As well, there
were no initials of the individual who made the
change nor any signature on page 11 as to who
agreed to the extension to 1987. There is what
seems to be a seal of the Government of Iran on
page 11.
In any event, the applicant decided not to
remain in France. She wished to come to Canada
and did so on November 24, 1984. Immediately
upon landing in Canada, she asked for political
refugee status.
The applicant admits that in order to come to
Canada, she came with a "false" passport. False,
at least, in the sense that she used a Spanish
passport as if she were a Spanish citizen. She
states she did this in order to avoid obtaining a
Canadian visa to come to Canada as all Iranian
citizens are obliged to do.
Her attorney gave two reasons why the appli
cant came on a "false" passport:
a) Persons holding an Iranian passport are required to obtain
a Canadian visa to come to Canada which was impossible to
obtain
and
b) The airline would refuse to allow a person to board unless
they had prima facie proof of valid travel documents.
Therefore, in order to avoid the Canadian law,
the applicant purchased, her attorney states, on
the "marché noir" [black market] a "false" Span-
ish passport.
The attorney informed me that immediately
upon landing, the applicant declared, besides that
she wished political refugee status, the passport
which she used to travel to Canada was false. This
took place on November 24, 1984. The applicant's
Iranian passport was, according to her, still in
France.
According to the applicant, she was let out on
liberty until March 26, 1985 when a special inqui
ry was to take place. The special inquiry was
postponed to April 9, 1985. It is at the special
inquiry where one formally requests political
refugee status.
The attorney for the claimant informs me that
during this time, I assume between November 24,
1984 and April 9, 1985, some four and one half
months, the applicant wrote to France to obtain
her passport and gave it to the officer holding the
special inquiry on April 9, 1985.
The passport, according to the claimant's attor
ney, was then seized in virtue of paragraph
111(2)(b) of the Canadian Immigration Act, 1976
[S.C. 1976-77, c. 52 (as am. by S.C. 1980-81-82-
83, c. 47, s. 23)].
The legal issue before me is to determine the
legality of the seizure made on April 9, 1985 by an
officer of the Department of Canadian Immigra-
tion. No warrant was obtained to effect the sei
zure. It is alleged that section 8 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.)] has been
contravened.
Section 8 states:
8. Everyone has the right to be secure against unreasonable
search or seizure.
The most important word contained in this sec
tion is the word "unreasonable". On reading this
section it would seem to me that where the search
and seizure were reasonable then the individual
would not be protected by this section of the
Charter of Rights.
This section has been subject to much contro
versy and as a result has led to many court
challenges.
I believe the most important case on the inter
pretation of this section is the Supreme Court case
of Hunter el al. v. Southam Inc., [ 1984] 2 S.C.R.
145. The said case sets the norms as to when a
seizure may be made without the prior issuance of
a warrant as well as deciding who should authorize
the issuance of a warrant for such a search and
seizure.
The judgment of Dickson J. (as he then was)
was followed by MacIntosh J. in the case of R. v.
Jagodic and Vajagic (1985), 19 C.C.C. (3d) 305
(N.S.S.C.) as well as by Osler J. in the case of R.
v. Zaharia and Church of Scientology of Toronto
(1985), 21 C.C.C. (3d) 118 (Ont. H.C.).
The principles enunciated by Dickson J. (as he
then was) in the Hunter case are of extreme
importance. The first general principle is that (at
page 148):
The Constitution of Canada, which includes the Canadian
Charter of Rights and Freedoms, is the supreme law of
Canada. Any law inconsistent with the provisions of the Consti
tution is, to the extent of the inconsistency, of no force or effect.
As I have stated, the issue is to see if paragraph
111(2)(b) of the Immigration Act, 1976 contra
venes section 8 of the Canadian Charter of Rights
and Freedoms.
Paragraph 111(2)(b) of the Immigration Act,
1976 states:
...
(2) An immigration officer may
(b) seize and hold at a port of entry or in Canada any travel
or other documents that may be used for the purpose of
determining whether a person may be granted admission or
may come into Canada where he has reasonable grounds to
believe that such action is required to facilitate the carrying
out of any provision of this Act or the regulations; ...
As can be seen, no request for a warrant for
search or seizure is required by this paragraph of
the Immigration Act, 1976.
In this case, the seizure was made at the formal
special inquiry on April 9, 1985 at which inquiry
the applicant asked for admission to come into
Canada as a political refugee.
At first blush, it can be stated that the seizure
was validly effected in so far as the Immigration
Act, 1976 is concerned but not so as a result of
section 8 of the Canadian Charter of Rights,
which is supreme to the law as enunciated in the
Immigration Act, 1976.
What is required in order for there to be a valid
search and seizure Under our law?
The following excerpt from the decision of Dick-
son J. (as he then was) in the case of Hunter et al.
v. Southam Inc. (supra) is, in my opinion, perti
nent to the issue under review (at pages 160 and
161):
A requirement of prior authorization, usually in the form of
a valid warrant, has been a consistent prerequisite for a valid
search and seizure both at common law and under most
statutes. Such a requirement puts the onus on the state to
demonstrate the superiority of its interest to that of the
individual. As such it accords with the apparent intention of the
Charter to prefer, where feasible, the right of the individual to
be free from state interference to the interests of the state in
advancing its purposes through such interference.
I recognize that it may not be reasonable in every instance to
insist on prior authorization in order to validate governmental
intrusions upon individuals' expectations of privacy. Neverthe
less, where it is feasible to obtain prior authorization, I would
hold that such authorization is a precondition for a valid search
and seizure.
Mr. Justice Dickson goes on to state that a
warrantless seizure is prima facie "unreasonable".
At page 161, Mr. Justice Dickson states:
... I would in the present instance respectfully adopt Stewart
J.'s formulation as equally applicable to the concept of "unrea-
sonableness" under s. 8, and would require the party seeking to
justify a warrantless search to rebut this presumption of unrea
sonableness. [The underlining is mine.]
In the present case the applicant, at the hearing
of April 9, 1985, voluntarily gave her Iranian
passport to the special inquiry officer Robert Raci-
cot (paragraph 10 of the applicant's affidavit) in
that she was of the belief that it was the custom to
leave with the Canadian authorities identity docu
ments (paragraph 11 of the applicant's affidavit).
In the applicant's affidavit (paragraph 10), she
states that after giving her passport to Mr. Racicot
he seized the passport, without warrant, by virtue
of paragraph 111(2)(b).
The passport is in the hands of the Canadian
Immigration or with the Royal Canadian Mounted
Police.
To the present time, no warrant for search or
seizure was obtained by the respondents.
The respondents argued that the passport was
not seized. That, as per paragraph 10 of the appli
cant's affidavit, the applicant voluntarily gave the
passport to Mr. Racicot and that the applicant
knew why the passport was being taken.
The respondents further argue that they are of
the belief that prima facie, there is reason why the
passport should be seized. They gave me two
reasons:
a) Applicant came to Canada with a passport not her own, to
avoid Canadian law;
b) On April 9, 1985, when Applicant produced her passport
it revealed, on page 9 of the passport that there may have
been an alteration.
In the application before me, I am not asked to
judge whether or not the applicant should be
granted political refugee status. I have very little
regard for persons who attempt to come to Canada
and then to remain there by illegal means.
This method, coming to Canada with a false
passport or by other illegal means, can only be
condoned if the person is trying to escape a coun
try where the person's life may be in serious
danger.
In this case, the applicant could have remained
in West Germany with her brother or in France
where she herself stated she went to claim political
refugee status.
This does not, in any way, negate the fact that
no warrant was obtained from an independent
person, such as a judge, to seize the applicant's
passport.
Mr. Justice Osler in the case of R. v. Zaharia
and Church of Scientology of Toronto (supra)
states very clearly that continued detention consti
tutes a seizure within the meaning of section 8 of
the Canadian Charter of Rights and Freedoms. At
page 124, Mr. Justice Osler states:
I am of the view that it is impossible to separate detention
from seizure for Charter purposes.
I believe that although the passport was volun
tarily given to the respondents, its continued
"detention" is a seizure.
Is the seizure of the passport without the issu
ance of a warrant reasonable and necessary having
regard to the facts in this case?
I believe not. The seizure made, by the con
tinued detention of the passport, is against the
meaning of section 8 of the Charter.
The respondents are claiming that they continue
to hold the seizure in place because of a report that
the passport was altered.
No one denies the fact that the passport was
altered. What is questioned is by whom was the
passport altered. No charges were made against
the applicant that she made the alterations, only
that alterations were made. The alterations may
have been made legally. This is a matter to be
decided at another time.
The case of Hunter et al. v. Southam Inc.
(supra) states the principle that, prima facie, a
seizure without a warrant is unreasonable. The
respondents have not shown me any proof why it
was not possible to obtain such a warrant before
effecting the seizure (detention of passport). This
is not the same as a customs officer making a
seizure of goods at a border where a person is
attempting to smuggle merchandise into Canada
and a seizure must be effected immediately.
I believe that the facts of this case show that it
was feasible for Mr. Racicot to have obtained the
issuance of a warrant before effecting a seizure of
the passport. The applicant should be given the
opportunity to rebut any claim that she committed
an illegal act by being in possession of the altered
passport.
It is not in every instance that an immigration
officer will be required to obtain a warrant before
seizing a passport. There may be instances where,
if the seizure is not immediately made, the person
and passport may disappear.
This is not the present case.
Following the principles set out by Mr. Justice
Dickson, I find the seizure of the applicant's pass
port "unreasonable" and thus illegal by virtue of
section 8 of the Canadian Charter of Rights and
Freedoms.
The motion is granted in part. I hereby order
the respondents to return to the applicant the
Iranian passport 865238, which passport contains
the name of the applicant, within 15 days of the
present judgment, the whole with costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.