Federal Involvement in the Case of Ernest Fenwick MacIntosh

Passport Issues

Who is eligible for a passport? How does Passport Canada decide?

Every Canadian citizen is allowed to apply for a Canadian passport. If an individual is not subject to any travel restrictions, and the Passport Program is not aware of any other reason they should not be eligible, then a passport is issued. The same basic process is used to determine the eligibility of every applicant. The Passport Canada Program uses a combination of trained officers and technology to verify the applicant’s identity and determine if they are entitled to a Canadian passport.

How do people get added to “watch lists”?

People are included on the Passport watch list (also called the Passport System Lookout) when there is reason to believe that the applicants are “high-risk.” This could mean that the person has a history of, for example, criminality or fraud or there is a concern about child abduction.

Today, electronic data from the Correctional Service of Canada and the Parole Board of Canada about federal offenders and parolees is automatically added to the passport system, as is information from Justice Canada concerning child support arrears. The RCMP’s Canadian Police Information Centre (CPIC), which contains records of criminal convictions and arrest warrants, is not directly linked to this system, but Passport officials do have access to that information.

When it is determined that the person is no longer high-risk, the Passport Canada Program will remove their name from the watch list.

Can someone on the watch list be issued a passport?

Being on the watch list does not mean a person is automatically ineligible for a passport. Passport officers review the files of persons on the watch list to determine whether they are still considered a risk or subject to any mobility restrictions. It does mean, however, that their application goes through a separate and additional process in order to ensure they meet the criteria for a passport.

The MacIntosh File

1997 Passport Issuance

When Mr. MacIntosh applied to the High Commission in New Delhi for a new passport in May 1997, no red flag was raised, despite his name being added to the watch list in 1996. This issuance was an error and it is unknown exactly why this error occurred. Two factors, however, likely contributed to the problem: first, information technology problems were common at the time; second, in this period the focus was on quick service to Canadians – so, for example, Canadian missions in foreign countries could print and issue passports themselves.

When Government officials learned that a passport had been issued to Mr. MacIntosh, actions were immediately taken to revoke it. On September 22, 1997, the Passport Office told Mr. MacIntosh that it was proposing to revoke his passport and informed him of his right to file an objection to the proposed revocation within 30 days. In response, Mr. MacIntosh wrote to the Passport Office on October 1, 1997, objecting to the revocation. He also stated that he intended to retain legal counsel, and asked for a two-month extension for this purpose. The Passport Office agreed to delay any decision on revocation until December 1, 1997.

In October 1997, Mr. MacIntosh’s counsel wrote to the Passport Office, requesting a copy of all information and materials in its possession that would be considered in making a decision on revocation. An investigator with the Passport Office replied and referred to the information that had been received from law enforcement officials: Mr. MacIntosh had been charged with indecent assault and gross indecency under sections 156 and 157 of the Criminal Code, and a Canada-wide warrant had been issued for his arrest on April 11, 1996. At that time, the Passport Office did not have a copy of the arrest warrant, which the RCMP subsequently sent by fax on December 3, 1997.

On December 1, 1997, Mr. MacIntosh’s counsel wrote a detailed letter to the Passport Office, setting out the reasons why his passport should not be revoked. On December 8, 1997, the Passport Office advised Mr. MacIntosh’s counsel of its final decision to revoke on February 1, 1998, in order to give Mr. MacIntosh time to arrange his affairs.

1998 Passport Litigation

Mr. MacIntosh filed legal proceedings in Federal Court in January 1998 challenging the final decision to revoke his passport. As well, he applied for an “interim stay” (temporary halt) of the removal of his passport pending the final decision on revocation by the Court. Federal counsel had four days to prepare for this motion. Typically, the full record including the warrant is not filed on an interim stay motion, although in hindsight it may have assisted in demonstrating the seriousness of the alleged crimes for which the passport was being revoked.

On January 22, 1998, Mr. Justice Rouleau of the Federal Court granted Mr. MacIntosh’s request for an interim stay. He found that the test for an interim stay was met since Mr. MacIntosh needed his passport for his work and the “balance of convenience” suggested that he keep it until the main hearing.

Justice Rouleau also commented negatively on the fact that the Government had not produced a copy of the arrest warrant. Although a copy of the warrant was not provided to Mr. MacIntosh until after the hearing, Mr. MacIntosh and the court had been provided with a summary of the outstanding charges and relevant facts.

Justice Rouleau was concerned that there was no warrant in the record before him and that the Crown was using the passport revocation process improperly in order to advance a criminal investigation. The courts have ruled that other processes such as immigration cannot be used solely to avoid the checks and balances in the extradition process. Similarly, Justice Rouleau was concerned that the passport revocation process was being used to further a separate police investigation process.

With the decision and concerns of Justice Rouleau in mind, and fearing a precedent-setting loss in front of the court, the Government made the difficult decision to settle the litigation with Mr. MacIntosh – allowing him to keep his passport, which was still valid at the time. This was certainly an unsatisfactory outcome, but Justice Rouleau’s decision underscored the risk that a court would see the passport revocation as a back-door attempt by Canadian authorities to force Mr. MacIntosh to return to Canada. If we had known then what we know now, we would have pursued revocation more aggressively in 1997 and 1998.

Two additional factors were present at the time the settlement decision was made. First, government officials knew that an extradition request was pending. There was no reason to believe at the time that the extradition proceedings would be so lengthy. Further, Passport Canada would also still be able to revoke Mr. MacIntosh’s passport if further charges were laid after 1997. Additional charges were in fact laid against Mr. MacIntosh in October and December 2001.

Issuance of 2002 Passport

When Mr. MacIntosh applied for a new passport at the mission in New Delhi in May 2002, a watchlist hit was generated based on the 1997 warrant and the mission sought guidance from the Passport Security Division. Unfortunately, contact was never successfully made between the Passport Security Division and the RCMP and the new charges were not known to the Passport Program. As a result, the mission in New Delhi once again issued a new passport to Mr. MacIntosh, valid from May 2002 to 2007.

After a thorough investigation of the 2002 issuance, the conclusion is that there was human error as a result of failed communications between the Passport Office and the RCMP.

There is no way of knowing whether successfully revoking Mr. MacIntosh’s passport in 1997, or refusing to issue him a new passport in 2002, would have led to him returning to Canada without the need for extradition. Nothing in the law would have compelled Mr. MacIntosh to return from India once his passport expired. He conceivably could have continued to live in India without a valid passport, although his activities and movements would have been significantly constrained. There is no doubt, however, that Mr. MacIntosh continuing to hold a valid passport throughout the relevant period compounded the failings by public institutions in this case.

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