Ombudsman's Annual report for 2004-2005

Adjudication and Conflict Management Office (ACMO)
Passport Canada

TABLE OF CONTENTS

Letter to the Chief Executive Officer

Executive summary

1. Function of the Public Ombudsman
   • 1.1 Two-step complaint resolution process
   • 1.2 The Ombudsman: a barometer of service quality
   • 1.3 Overview of the year's activities
   • 1.4 Trends
   • 1.5 Reflections on the mediation of difficult cases
   • 1.6 Some typical cases
2. Adjudication of Security Files
   • 2.1 Investigation procedure
   • 2.2 Adjudication/ruling
   • 2.3 Number and types of actions
   • 2.4 Comparative overview of rulings
   • 2.5 Length of suspension of passport services
3. Implementation of Policy on Disclosure of Wrongdoing in the Workplace
   • 3.1 Investigations conducted into disclosures of wrongdoing in the workplace
   • 3.2 Advice provided in confidential discussions
   • 3.3 Informal conflict management system
   • 3.4 Advice on Ethics and Values
4. Internal Coordination of Access to Information and Privacy
   • 4.1 Coordinating Access to Information requests
   • 4.2 Privacy
5. Varia
   • 5.1 Services for mediating or arbitrating contract disputes
   • 5.2 This just in: A comprehensive framework for reform of the Access to Information Act

Letter to the Chief Executive Officer

June 10, 2005

Ms. Doreen Steidle
Chief Executive Officer
Passport Canada
70 Crémazie, Ground Floor
Gatineau, Quebec
K1A 0G3

Ms. Chief Executive Officer:

We are pleased to submit our Annual Report for fiscal year 2004-2005. During this period, we consolidated three key parts of our mandate. First, Ombudsman services were established in the last quarter of the preceding fiscal year to handle complaints from clients of the Agency. This annual report provides the first portrait of a complete cycle of our activities. We had 45,817 visitors of our Web site, processed close to 400 complaints. It appears that our presence may have contributed, in part, to the lower influx of incoming correspondence from clients addressed to the Agency.

Second, last year saw a significant drop in the number of rulings related to the adjudication of security files. The trend continued this year, with only eight (8) files referred to us for a ruling. We are concerned that security files will continue to be opened on individuals without any real decisions being made in a timely fashion, thereby hindering the gathering of evidence and witnesses' statements while the events are fresh in their minds.

Third, our interventions as Officer responsible for disclosures of wrongdoing in the workplace were initiated during this fiscal year. Three such disclosures were submitted in connection with this important function, the purpose of which is to protect from retaliation public servants who disclose wrongdoing in good faith. We also conducted a number of consultations. Pursuant to the applicable policy, we are required to report on these investigations in an annual report. You have already received a detailed report, however. Your interest in issues relating to Ethics and Values was clear from the responsiveness and resolve with which you considered our recommendations on these matters.

We also summarize here other activities performed by our Office. Once apprised of our concerns related to Privacy and the Access to Information Act, you approved a supplementary budget for our Office, allowing us to hire a resource person. With this addition, we were better able to support the Agency's projects, while providing advice on the internal coordination of Access to Information requests. Finally, no contract disputes between the agency and its suppliers of goods and services were referred to our Office for mediation. All of our existing summary tables have been updated, and new ones created.

We hope this information will paint a useful picture of a very eventful year from the standpoint of many of our functions and responsibilities.

Yours sincerely,

Jocelyn Francoeur, LL.B.
Chairperson
Adjudication and Conflict Management Office

Executive summary

The Adjudication and Conflict Management Office (ACMO) enjoys institutional independence in relation to Passport Canada (formerly known as the Passport Office). This independence was recognized in 2004-05 by an organizational review conducted by the Office of the Inspector General of Foreign Affairs Canada, at the request of the Deputy Minister. We report functionally to an advisory committee that will be established to advise the Chief Executive Officer on the Agency's main operational and strategic orientations.

Our mandate is to offer impartial professional services. The cornerstones of our activities are independence, neutrality, accessibility and legitimacy, which combine to ensure credibility. We operate in five activity sectors.

1. Function of the Public Ombudsman

There is a two-step process in place for handling complaints from the public. Complaints are generally dealt with by the Agency at Step 1, for the purpose of promoting internal resolution. In cases where complaints are not resolved at Step 1, clients of the Agency can contact our Office (Step 2).

Users filed 396 complaints with our Office. Many of these complaints were resolved simply by providing information (210 cases). Other complaints that were not resolved at Step 1 were resolved by our seeking assistance from Passport Canada's operational units. We received steady cooperation throughout the year, allowing us to resolve 117 of these cases. Created last year, this year's Orange Award for cooperation goes to Western Operations. Although that region did not handle the largest number of cases referred by our Office, it received those that were hardest to resolve from a human resource perspective. The communications and follow-ups were highly professional even in the thorniest situations.

Of the 70 formal complaints and comments we received, 38 were directed to Step 1 to be handled by the Agency. Another 19 were resolved directly by our Office, without recourse to Step 1. Finally, 13 complaints involved observations, comments and suggestions that we transmitted to the appropriate branches.

With respect to trends,

• Several complaints came from clients who were unable to reach information officers at the Agency's toll-free number. Several factors contributed to this situation. These problems were raised and corrections were implemented during the last quarter by the temporary addition of staff until the backlog has been cleared.
• Clients prefer to speak to a live person, and they continue to express their surprise and satisfaction at being able to reach us relatively easily by telephone. Our Office tries to compensate for the fact that it does not have a toll-free number by calling back long-distance callers.
• The policy regarding child passport applications, which prompted many complaints, was revised and should, we believe, help the examiners better carry out their important duties with respect to these complex matters.
• Keeping on-line information up to date represents a continuing challenge for Passport Canada.

With respect to the mediation of difficult cases, only one could not be resolved at Step 2 following our interventions. It is our view that the expectations of the complainants and the Agency representatives are diametrically opposed. The clients' expectations with respect to compensation are inflated by a perception that "the government is rich". From the Agency's perspective, incentives to make reasonable offers are in conflict with performance incentives connected to "fiscal responsibility", not to mention a fear of setting undesirable precedents. Our reflections on these dilemmas are presented in our Annual Report.

Following last year's Annual Report tradition, a review of typical cases is intended to help the reader understand cases that are likely to be of concern to a large number of the Agency's clients. The following situations are covered in the Annual Report:

1. Processing times for mail-in passport applications
2. Limited availability of Declaration in Lieu of Guarantor forms
3. Parental consent in cases of joint or sole custody
4. Documentary evidence of citizenship: factors beyond Passport Canada's control
5. Birth certificates for minor children: impact of parents' marital status
6. Passport renewals
7. Rejected photographs
8. Impending expiry of passport validity

2. Adjudication of Security Files

The investigation and ruling procedures are described in detail in the Report. Last year, we received 18 files, almost 50% fewer than the previous year (34 files). This year, the decline continued; we only received 8 files. Seven cases were accepted and one rejected. The periods of suspension of passport services varied from one to five years.

In her (April 5, 2005) report covering the audit of fiscal 2004-05, the Auditor General of Canada pointed to the small number of documents revoked during the past three years. The Report reveals that of 50 files examined, 12 were never completed, partly because of a lack of resources. The branch's budget was increased by 25% during the fiscal year. In our role of Adjudicator, we are pleased to see these developments, which will hopefully clear up the problem of security files continuing to be opened on individuals without any real decisions being made in a timely fashion, in order to secure the gathering of statements while the events are still fresh.

3. Disclosure of Wrongdoing in the Workplace

Three investigations were conducted in 2004-05. Two cases related to allegations of patronage in the hiring process. One case is still in the investigation stage, with a partial resolution possible. The other case has been closed. It was demonstrated that the persons linked with the applicants were not part of the selection committees that hired the applicants. However, a combination of factual observations has led us to propose recommendations to help respect the spirit and not just the letter of the policy. The third disclosure was mainly related to working conditions. The only allegation that was relevant to the policy and the Values and Ethics Code for the Public Service was held to be unfounded.

Internal Coordination of Access to Information and Privacy

The delegated authority responsible for these matters is posted at Foreign Affairs Canada (FAC). Our Office coordinates Access to Information requests internally for the Agency. We also advise project managers on privacy issues. In some respects, we operate like a satellite office of the responsible branch at FAC

There were 50 consultations and Access to Information requests handled by the Agency in 2004-05. To that number can be added more than 100 Requests for Access to Personal Information and 350 Requests for Investigation.

With respect to privacy, we were consulted in the context of four impact studies and preliminary impact studies. Pursuant to the applicable policy, summaries of these studies must be made available to the public. These summaries must account for the fact that some initiatives are still pending approval, or that the disclosure of certain elements could compromise security measures or systems. The summaries should be published once the initiatives are up and running.

The Minister of Justice has recently tabled a comprehensive framework on access to information reform to the Standing Committee on Access to Information, Privacy and Ethics. Naturally, we have an interest in this initiative, which we believe must still make room for certain responsibilities to be exercised confidentially; if not, the effectiveness of the mediation and disclosure processes would be seriously compromised.

In our role of Ombudsman, handling complaints from Passport Canada clients, we are concerned about the negative effects of the Access to Information Act on confidential mediation processes. It is widely known that in mediation, the interest and commitment of the parties are only made possible by confidentiality, without which governmental institutions would never agree, for example, to consider ex gratia payments to resolve a dispute. A public mediation sets a precedent just as a court ruling does . . . . Hence, we will point out our interest in appearing as a witness before the Standing Committee on Access to Information during the upcoming year to present our concerns, as well as other communications options already undertaken that we feel meet the transparency and accountability requirements.

5. Services for Mediating or Arbitrating Contract Disputes

These services are provided by our Office on a voluntary basis. They were created as part of an initiative of the Department of Justice, which established its Dispute Resolution Services (DRS) in 1992.

At Passport Canada, we offer our services in cases of conflict between the Agency and its suppliers of goods and services. Since the implementation of the service last year, no conflict has been referred to our Office for mediation or adjudication. Next year, we plan to promote the service more actively by assisting with the drafting of mediation clauses to be included in contracts entered into by the Agency.

The Adjudication and Conflict Management Office (ACMO) has five functions that are made possible by its institutional independence from Passport Canada. Our mandate is to provide impartial professional services. Our guiding principles are inter-related and based on those of an Ombudsman: independence, neutrality, accessibility, legitimacy and credibility.

1. Function of the Public Ombudsman

1.1 Two-step process for handling complaints

As indicated on our website, complaints against Passport Canada are normally referred to the Agency to be handled in Step 1. Unresolved complaints may be referred to the Ombudsman (Step 2). Since the best solution is always the one arrived at by the parties, the Ombudsman encourages a mutual gains approach to the negotiation of complaints. The procedure and mechanisms are described in the "Ombudsman" pages of the Agency's website.

In some circumstances, the Ombudsman may determine that referring a complaint to Step 1 would pose an injustice or a major inconvenience for one of the parties. In such cases, we may intervene immediately to help the Agency and the complainant more quickly understand their respective priorities, motivations and expectations. This will determine how far the parties are from reaching a mutually satisfactory resolution.

1.2 The Ombudsman: a barometer of service quality

As we wrote in last year's annual report, proactive organizations concerned with service quality see an Ombudsman's input as a valuable source of information about the quality of their services. Leaders and managers committed to meeting high service standards use the Ombudsman's observations in several ways: improving the effectiveness of their own internal complaint resolution systems, raising awareness about service quality in sensitive sectors, and ensuring fairness in particular practices and policies.

By looking at the Ombudsman's observations as opportunities for improvement, Passport Canada demonstrates it leadership and its ongoing commitment to ensuring quality service.

The persuasive effect of the Ombudsman's work prompts responsible organizations to consider innovative methods for handling certain types of issues or reconsidering long-established practices. Agency representatives have seen our efforts and recommendations as useful and constructive. The complainants and Agency employees with whom we worked expressed much appreciation for the nature and purpose of our interventions. In 2004-2005, we were invited to make presentations about the work we do to various Passport Canada branches. These presentations were well received. They reassured the participants about the Ombudsman's commitment to promoting fairness for both the general public and the Agency.

1.3 Overview of the year's activities

This year marks our Office's first complete operation cycle. In 2004-2005, our website received 45,817 visitors, an average of over 200 visits per day, with the bulk of visitors being from outside Canada. We benefited from exceptional cooperation from the Passport Canada staff members we approached. Managers, coordinators, unit heads and staff from the regional and central operations all responded to our requests in a timely manner.

In turn, it appears that the presence of an Ombudsman may have had a positive effect on the Agency's correspondence workload. In the fiscal year 2002/2003, Passport Canada received more than 46,000 pieces of correspondence. In 2003/2004, the figures were down to 38,000 and for 2004/2005, the totals dropped again to 31,000.

Over the course of the year, we refined our methods of intervention with the Agency and handled 396 complaints from the public. As we have already stated, we do not systematically refer all complaints to be handled at Step 1. We have learned from experience that under the rubric of "complaints" there are other types of situations that could be directly resolved at the points of service. With this in mind, "complaints" are more appropriately subdivided into three categories: information requests, requests for assistance and formal complaints. The following table provides statistics from 2004-05 for each of these categories:

• Information requests: 53% of communications received in 2004-05 were of this type. They were resolved by providing information to the clients.
  • Number of inquiries in 2004-2005: 210
  • The majority of the inquirers are seeking explanations of the policies or documentary requirements related to a passport application. In this respect, we supplement the information provided by the Agency's website and call centre. A number of clients expressed their satisfaction at being able to reach us directly, simply and quickly. It is also interesting to note that several requests are outside of our jurisdiction. For example, clients call with inquiries about their visa applications, or to complain about difficulties they have had in boarding an aircraft. Our Office conducts research to direct these citizens to the appropriate authorities. We feel that these interventions represented value added to the services normally provided by the Agency.
• Requests for assistance: This type of complaint represented 30% of files opened in 2004-05. Clients in this category are confronted with particular or urgent situations. Generally, these situations are not familiar to Passport Canada's points of service, or they materialize after an application has been submitted. We refer this information to operations for follow-up and action. The alternative of involving the Agency at Step 1 would introduce an intermediary with no decision-making authority in a case that is generally pending (i.e. a final decision on the service request has not yet been reached). Direct contact with operations is therefore privileged.
  • Number of interventions in 2004-2005: 117
  • The problem is almost always resolved in time for the citizen to undertake the planned trip. It was mainly for this type of case that we established the Orange Award last year, to highlight exceptional cooperation from Agency representatives who assisted us. Last year, the award went to the Central Operations Division. This year we are recognizing the exceptional cooperation of Western Operations.
  • As a result, if we combine this type of complaint with the previous type, they account for more than 80% of the files we open that are handled and resolved without setting in motion any formal processes for complaint resolution or mediation, at Step 1 or Step 2.

    The "Orange Award" for cooperation goes this year to Western Operations. Although this region did not handle the largest number of cases referred by our Office, it did receive those that were most difficult to resolve from a human resource perspective. These cases were followed up very quickly, and communications were highly professional even in the thorniest situations.

• Complaints from the public: the final type of complaint we received (14%) represented formal complaints from the public. At Step 2 we handle complaints that have already been addressed to Passport Canada but whose outcome has failed to satisfy the client, or those that, based on experience, we consider unfounded or already resolved.
  • Number of complaints referred to Step 1 in 2004-2005: 38
  • Number of complaints dealt with at Step 2 in 2004-2005: 19
• Almost all of the complaints we receive represent the first step taken by clients. Clients seem naturally inclined to direct their complaints to the Ombudsman rather than the Agency. Could this be because they cannot identify a point of contact where their complaints can be received? The Agency's website includes pointers such as "Contact Us" and "Send us your Comments". The reader is also guided to the Ombudsman on the same site. Complainants prefer dealing with the Ombudsman, a concept that they associate more closely with the type of communication they wish to make. We refer to the Agency any complaint that it has never had the opportunity to deal with for treatment at Step 1. The clients are advised, and if they remain unsatisfied with the response, they may then deal with us at step 2.

1.4 Trends

• Many calls come from clients who were unable to reach information agents through the Agency's call service (a toll-free number made available to clients). This situation can be attributed to several factors:
  • during certain high-traffic periods (Easter break, Christmas), the lines become overwhelmed, with the result that clients cannot even leave a voice mail message;
  • some toll-free number users have difficulty with the "subject tree", or cannot operate the system;
  • others give up when they consider the waiting period too long.

  These problems were raised with the division and dealt in the last quarter by adding staff temporarily to clear the backlog. We also noted that clients could contact the Agency directly through its website, at www.pptc.gc.ca, by using the "Contact Us" link. This technology is not accessible to everyone (a problem at our own Office, which relies on the Web for visibility). It seems that the old-fashioned telephone is still the preferred way to reach the Agency.

• With respect to the ease with which clients are able to reach us, we studied the mechanisms by which citizens could reach various Ombudsman's offices across the country. Our Office tries to compensate for the fact that it does not have a toll-free number by calling back long-distance callers. Other more user-friendly mechanisms, such as filling out a complaint form on-line, should also be examined. The form is currently only available in PDF format, which means that citizens must print it and fill it out by hand, then fax or mail it.
• Citizens who contact our Office by telephone continue to express their surprise at being greeted by a member of our staff. In this era of automated systems, the proven formula of direct contact with an individual remains greatly appreciated, but is becoming increasingly rare. This reflects the public's expectations of personalized service from their government.
• The policy with respect to passport applications for children (under 16) has been revised. We received many complaints on this topic this year and last year. All of these were referred to the Agency as "requests for assistance". All or almost all required input from the Agency's Legal Counsels' unit, which did a remarkable job of providing advice to the operations to help overcome a number of obstacles. We consider the new policy to be much clearer, and it should help examiners better perform their important duties in complex matters (interpretation of clauses on restricted mobility, legal custody, parental authority or guardianship).
• Keeping on-line information up to date is an ongoing challenge (both for the Agency and our Office). We refer all comments on this subject to the Agency, but this has not led to much progress. Our Office intends to follow up on these observations/comments more aggressively with the Agency over the coming year.

This year, we have created a new table that will be updated in our future Annual Reports. We have assembled all communications received from people who contacted the Ombudsman's Office by region. The value of this indicator should not be measured in absolute terms, but it may confirm certain trends that the Agency has been tracking with other statistical data collection systems.

Note: the accumulated total is greater than the number of cases itemized in section 1.3 of this Report (401 vs. 396). More than one person contacted our Office about particular files.

1.5 Reflections on the mediation of difficult cases

In 2004-05, only one case could not be resolved at Step 2 following our interventions with the Agency. We conducted a mediation between the complainant and Passport Canada. There were two difficulties associated with this type of action:

The complainants' expectations regarding compensation were inflated by a perception that "the government is rich".

It is important to note that compensation is determined based on the damages incurred, not on the "debtor's" ability to pay. This can be contrasted with alimony payments, which are based on the payer's income. Therefore, in this type of mediation, where offers can be made of confidential, ex gratia payments without prejudice to existing rights, the gap between expectations and a fair and reasonable payment is often too wide for the parties to agree on an amount. In such cases, the Ombudsman's only option is to submit a compensation recommendation to the Chief Executive Officer.

From the Agency's perspective, any incentive to offer reasonable payments is in conflict with performance requirements connected to "fiscal responsibility", as well as a fear of setting undesirable precedents.

An appropriate response to a mistake is sometimes, although not always, monetary compensation. We have just discussed the difficulty with setting a compensation amount that is fair and reasonable from the client's perspective. From the perspective of Agency representatives, who are accountable to operational services, an ex gratia payment represents a black mark on your financial statement. We feel that these amounts should be seen as "operation costs", just like the costs paid by goods- and service-producing companies for labour, materials, supplies, rent and insurance. Next, it is important to realize that the friendly agreements reached during a mediation remain confidential.

The fear that a mediation will create a precedent as to "quantum" (monetary amount) is actually ill-founded. Every case is unique. In calculating reasonable compensation, parallels may necessarily be drawn with similar cases. However, these situations have to be very similar. Damages vary from one individual to another because the direct consequences of an act or omission vary from one individual to another. Some people will have to take extraordinary measures to correct inextricable situations. Others will suffer the usual inconveniences associated with normal procedural requirements for meeting particular conditions to have a "right" recognized that is not necessarily clear.

In conclusion, the dynamic of a mediation between a government agency and the citizen is quite particular. In the private sector, bottom line (cost/benefit) imperatives call for a certain amount of pragmatism when the time comes to "settle". The asker agrees to less than he or she has claimed, knowing that a court may set an even lower amount. The defendant agrees to pay a little more than it considers reasonable because "time is money", and it could very well be forced by the courts to pay more.

To hone our skills at promoting effective mediation, we took a professional training course in mediation offered by the Quebec Bar, as well as a training seminar offered by the Forum of Canadian Ombudsman. There we learned valuable tips and strategies that will be useful in future mediations. We will continue to observe the behaviours, expectations and operational constraints that discourage the parties from coming together. By pointing them out, we will try to avoid having the parties turn to the Ombudsman for a decision when no agreement is possible. This approach is of little use, since it does not put the onus on the parties to develop their own solution.

1.6 Some typical cases

Last year, we began a practice of presenting certain types of cases to the Agency that were likely to affect many of its clients. The conclusions drawn from these cases help citizens understand the validity of similar complaints and sought remedies.

We begin with a recap of the typical cases discussed in last year's Annual Report:

Case 1. Processing times for mail-in passport applications

The service standard for this type of application is 20 business days, excluding days that the documents are going through the mail system (to come to Passport Canada or to be returned to the citizen). The following situations were considered to be reasonable. The opening of the mail and the preliminary treatment of the applications must be done in the first third of the 20-day period. If, during that period, it is discovered that the application is incomplete or cannot be fulfilled, it is returned to the citizen. The 20-day period begins again from the day that the modified application is returned to the Agency. It is reasonable to set the counter back to zero in cases of incomplete applications, since processing times would be much longer if the Agency had to incorporate all files pending corrective action from the applicants to complete the application process. For a detailed discussion of these issues, please see Appendix 1 of the 2003-04 Annual Report, Case Study 1.

Case 2. Limited availability of Declaration in Lieu of Guarantor forms

To assess the reasonableness of the limited availability of guarantor substitution forms, the Ombudsman considered a combination of factors. First, the "guarantor" policy is reasonable and relatively non-invasive into the privacy of citizens, who have their identity confirmed by a third party. Second, this proven method allows the Agency to operate in a financially responsible manner. The additional checks required to process an application supported only by a Declaration in Lieu of Guarantor result in additional costs, which must be recovered by Passport Canada.

In 2003-04, a third case type was raised, which was to be reviewed over the course of 2004-05:

Case 3. Parental consent in cases of joint or sole custody

As mentioned in the overview of activities (see section 1.4, "Trends"), the policy for handling passport applications for children (under 16) has finally been revised. In our opinion, the new policy is much clearer and should help examiners carry out their important duties in complex matters. The presence of a number of contradictory clauses regarding mobility restrictions, legal custody, parental authority and guardianship made it difficult to determine the rights of a separated spouse who is not submitting a passport application.

The following are typical cases of 2004-2005:

Case 4. Documentary evidence of citizenship: factors beyond Passport Canada's control

Many inquiries and requests for assistance come from citizens in urgent situations who must travel abroad. Unfortunately, as often happens in a crisis, these people do not have access to the documentary evidence of citizenship (DEC) required to issue a passport. Passport Canada attempts to accommodate these citizens by considering a variety of evidence. Client cooperation is essential if the Agency is to meet its obligations. Passport Canada should not be held responsible, in our opinion, for the processing time required by the authorities responsible for issuing DECs. For example, in 2004-05, the period for handling applications for certificates of citizenship issued by Citizenship Canada fluctuated from 5 to 8 months.

Clearly, such turnaround times have the effect of putting intense pressure on Passport Canada to compensate for obstacles over which it has no control. In our experience, clients are in the vast majority of cases able to provide the additional information and documents requested by Passport Canada. Most clients understand that the document issued will only be valid for a limited time, long enough to satisfy the needs of the upcoming trip. The passport's validity can be extended once documentary evidence of citizenship is received.

Case 5. Birth certificates for minor children: impact of parents' marital status

Some individuals alleged that Passport Canada's policy requiring common-law partners to submit long form birth certificates of minor children born of their union constitutes discrimination. Married parents may submit a normal certificate. The Human Rights Commission has had the opportunity to review the issue, and it decided that the policy was not discriminatory. Considering the primacy of the Commission's absolute jurisdiction, our Office reviewed the complaint from the angles of transparency and efficiency of communications with the public. At the end of the fiscal year, we submitted questions to policy officials, seeking their reactions and comments regarding potential improvements. We feel that it is desirable to communicate more clearly the requirements for identifying the filiation of minor children born of common-law couples. This would avoid confusion on the part of common-law partners who believe that a normal birth certificate is sufficient. Such confusion generates frustration when parents have to start the process from scratch and appear at a point of service with the appropriate documentation.

Case 6. Passport renewals

Complementing complaints regarding documentary evidence of citizenship requirements (Case 4), many citizens have expressed frustration over the years with the fact that they must begin the process from scratch with each new application. This year, Passport Canada has introduced a simplified process for passport holders. Existing passports can be renewed more easily, with fewer supporting documents than in past years. These developments were made possible by a modern computerized file management system that also ensures improved service in cases of loss or theft, or when travellers are deprived of their documents while abroad. The renewal services are being introduced progressively, beginning with pilot projects to test the validity of the concept and its application to the general population.

Case 7. Rejected photographs

About ten cases related to the refusal of Agency representatives to accept photographs submitted to support passport applications. This type of situation does not lend itself to mediation by our Office. The photographs are either acceptable or they are not. The main difficulty rests in the fact that for the citizen looking at the photograph, it appears to be of the same quality as the examples provided on the Agency's website. Although there is a certain amount of subjectivity involved in assessing photographs, they are generally only rejected when they have a particular and identifiable flaw. The Office of the Ombudsman has thus far refused to pronounce on the acceptability of photographs in dispute. In these cases, we encourage clients to seek a second opinion from the issuing offices by contacting either a coordinator or a manager. The photograph specifications are listed on the Agency's website (www.pptc.gc.ca) under Photo Specifications in the Quick Links section.

Case 8. Impending expiry of passport validity

One case in particular raised an issue that is applicable to all Passport Canada clients. The holder of a passport whose validity was to expire in less than 6 months pointed out that he could not benefit from the full validity period of his passport (5 years) as a result of the requirements of his destination country. Several countries require that visitors be in possession of a valid passport, some for 3 months, others for 6 months. Foreign Affairs Canada (FAC) tries to make available to Canadian residents the most up-to-date information possible about such requirements by foreign countries. However, FAC is dependent on information supplied by these countries. Travellers are encouraged to contact directly the embassy of the country they plan to visit to verify what minimum validity length is required on their passport. Passport Canada cannot guarantee the accuracy of information from third parties. Any country that issues passports is faced with the same situation: the period that a passport is valid is reduced in practice by the minimum period of validity required by countries visited. Therefore, if Country X requires a passport valid for 6 months, you wish to travel to this country and your passport expires in 3 months, you will be required to obtain a new Canadian passport.

2. Adjudication of Security Cases

In order to meet the requirements relating to the rules of natural justice and procedural fairness, decisions to refuse or revoke a passport are made by an independent Adjudicator. Our role as Adjudicator is, in cases other than those related to national security (section 10.1 of the Order), to rule on the applicability of the grounds for revoking or refusing passport services set out in the Canadian Passport Order (available on the website of the Passport Canada).

2.1 Investigation procedure (for cases other than those related to national security)

The Security, Policy and Entitlement Branch of Passport Canada is an investigative body identified in the Privacy Act. This Branch gathers facts and determines whether those facts seem consistent with the conditions for refusing or revoking a passport. If this is the case, the subject is given the opportunity to present a defence and respond to the Branch's allegations.

The Branch considers the information received from the subjects or their counsel. After considering this information, it may authorize the issuance of a full validity passport or a passport for a limited period of time and containing certain conditions. Alternatively, if the Branch considers that the information seems to support a conclusion that grounds for refusal or revocation apply, it can recommend that an Adjudicator, acting on behalf of Passport Canada, rule on the matter. The submissions of each party are placed in their entirety in the security and investigation file, which is forwarded to the Adjudicator for final ruling.

2.2 Adjudication/ruling

The Adjudicator rules on the matter based on the written submissions of the parties. Acting independently, the Adjudicator ensures compliance with the rules of natural justice. It is the Adjudicator's responsibility to ensure that the defendant (the subject) has been given notice of the Section's intentions. The alleged acts must therefore have been described in sufficient detail to enable the subject to produce a full answer and defence.

In deciding on the merits, the Adjudicator considers the whole file and delivers a decision in writing supporting, in whole or in part, or rejecting the recommendations of the Section. Where the recommendations of the Section are upheld, the Adjudicator also makes a ruling on the length of suspension of the applicable services.

A ruling by the Adjudicator is considered final from the date of receipt by the person to whom it is sent, that is, the subjects of the investigation or their counsel.

The latter may challenge the ruling by filing an application for judicial review before the Federal Court of Canada within thirty (30) days of receiving said ruling.

The Adjudicator may on occasion be called on to rule on a request for interim service on compassionate grounds pending completion of the investigation and joinder of issue in the main case. The Security Branch may authorize such service without submitting the matter to the Adjudicator, but a refusal to provide such service must be confirmed by the Adjudicator.

2.3 Number and types of actions

Last year, we handled 18 cases, or roughly half the number from the previous year (34 cases). The trend continued this year with only eight cases referred to us for ruling?a continuing decline. Of this number, only one case was represented by counsel. The proportion of individuals having recourse to the services of an advisor went from 32% to 35% over the past two years to 17% this year. Seven recommendations were upheld and one rejected (it was not a case in which the subject was represented by counsel). The length of suspension of passport services varied from one to five years (refer to section 2.6 of this Report).

Adjudication Rulings by Year
Cases	100
	0	8	18	34	22	84	2004-05 2003-04 2002-03 2001-02 2000-01 and prior

According to our indications, this continuing decline should stop next year. The administrative process of adjudication that has been put in place has been described by law enforcement agencies as more useful than criminal proceedings. Criminal prosecutions remain relatively hard to complete, if only from a procedural standpoint. Furthermore, sentences imposed reflect the reality of over-burdened courts having to deal with cases with more human ramifications (there are identifiable victims of criminal offences, whereas an offence involving the fraudulent use of passports continues to be qualified as a victimless offence). In reality, fraud associated with illegal immigration can have serious consequences, be it for national security, financial or personal abuse, or the bodily security of individuals who are alone and without recourse.

In this era of heightened vigilance at border crossings, it would be logical to expect that there will be increased activity in this area. In her report (of April 5, 2005) covering the audit of fiscal year 2004-2005, the Auditor General of Canada signalled that, on average, fewer than 25 passports had been revoked over the past three years.

The Report reveals that of the 50 investigative files examined, 12 were never completed, due in part to a lack of resources. The Branch's budget was increased by 25% during the year. In our role of Adjudicator, we are pleased to see these developments, which will help decrease the likelihood that security files will continue to be opened on individuals without any real decisions being made in a timely fashion. This may contribute to the gathering of evidence and statements from witnesses as the events are fresh to memory.

2.4 Comparative overview of rulings

As illustrated by the chart below, as was the case last year, the main activity subject to investigation and referral for adjudication is assisting strangers or travellers impersonating immediate family members and carrying their travel documents. The person accompanying such persons acts as an escort for the third party or impersonator. However, this year, a similar number of cases (3/8 cases) dealt with false statements by individuals requesting passport services.

Activities	Activities Subject to Sanctions
	45	2004-05	2003-04	2002-03
	0				Assistance to impersonators Escorting foreigners Lending documents Altering documents False statements Boarding passes Other

Lastly, this year we are again presenting the cumulative chart of activities subject to sanction. The following chart reflects the full jurisprudence in the adjudication field. This chart, like all the charts in our previous Annual Reports, is updated with data from the year we are reporting on. As a result, the reader can follow the changes and trends.

Analysis of Jurisprudence (165)
70
0	33.6	14.6	17	5	17.8	5	6	Family/impersonators Strangers Loan/sale of document Alteration/mutilation False statements/documents Boarding pass swap Other (misc.)

2.5 Length of suspension of passport services

As was presented last year, this table illustrates the diversity of the penalties, taking into account aggravating and mitigating circumstances in each individual case. The penalty examined here is the suspension of passport services imposed by the Adjudicator, which ranges from a maximum of five (5) years, or the maximum length of validity of a passport, to zero (0), naturally in cases where the recommendation of the Section is dismissed.

^* A revoked recommendation was rejected; in the second case, the subject was not a citizen, therefore it was not so much a suspension as it was a permanent ineligibility until the subject obtains confirmed citizenship.

The suspension period is based on the aggravating or mitigating factors in each case. As jurisprudence evolved, these factors were established. The main mitigating factors are the subject's cooperation in the investigation, the presence of compassionate or humanitarian grounds, remorse, and major loss or inconvenience resulting from the fraud. The main aggravating factors are denial in the presence of solid evidence, having been paid for committing the fraud, having been the instrument of an illegal migration involving vulnerable individuals such as children or those who will be exploited at work or elsewhere.

3. Implementation of the Policy on Disclosure of Wrongdoing in the Workplace

Last year, one of the objectives we set was to give greater visibility to this function. Moving our offices into the new corporate building where the Agency is located has helped bring us closer to employees. We were also invited to meet with functional and operational branches, to share and make known our powers, duties and functions.

Treasury Board's Policy on the Internal Disclosure of Information Concerning Wrongdoing in the Workplace (disclosure policy) establishes the parameters of our area of activity. Under this policy, all the departments and agencies must designate an independent senior official responsible for holding disclosure investigations. We have been invested with this authority. We receive disclosures, provide consultations for employees and conduct investigations when necessary. The stages of the process are described on the Agency's Intranet site so that employees are informed on how the policy is applied. The stages are as follows:

1. researching the facts
2. screening (directing employees to more appropriate recourse when necessary) and preliminary investigation
3. resolving (mediation/discussion with the party who initiated the disclosure)
4. investigating, when the matter cannot be resolved and the preliminary investigation has brought out adequate reasons to continue the process
5. rendering a decision, which happens after assessing the recommendations made to the CEO.

Under the policy, senior officers must prepare an annual report to be submitted to the deputy head. At the very least, the report must indicate the number of general information requests made and the advice provided, the number of disclosures received and the status (refused, accepted, resolved without an investigation or still being examined) and the number of disclosures, resolved or still being examined, that were subject to investigation.

3.1 Disclosure of wrongdoing in the workplace

The Disclosure Policy seems to us to be an important tool for resolving problem situations that can arise, sometimes despite the good faith of the person targeted. It enables the parties concerned to understand and identify, in ambiguous situations, practices that go against the Values and Ethics Code for the Public Service. When investigations are carried out professionally and independently, the parties generally agree on their conclusions.

During 2004-05, we received three disclosures. Two cases were related to hiring practices. One case was deemed to be founded, not on the basis of the objective commission of a prohibited act, but rather on the basis of a subjective test in accordance with the Code of Values and Ethics. The Code prescribes that when it comes to ethics, appearances are just as important as strict adherence to policies. It was demonstrated that the persons linked with the applicants were not part of the selection boards that hired the applicants. However, a combination of factual observations led to the submission of recommendations aimed at respecting the spirit and not just the letter of the policy. The other case is still being examined, since the complainant was unavailable to discuss our conclusions from the comprehensive preliminary investigation. This case will be completed next year.

The third and final case of disclosure was mainly related to work conditions in a particular unit. Most of the allegations had to do with work relations. Other areas of recourse are better suited to examining such situations. The only allegation relevant to the Policy was rejected on the basis of the evidence and explanations gathered.

One of the internal Senior Officer's duties is to disseminate information relating to the Disclosure Policy. In our opinion, the best information is alway that which is based on everyday situations. We believe that there are many advantages to publishing biographical data on the types of practices that are acceptable and unacceptable. That information is useful to management and employees alike. We think that the lessons drawn from such data should be communicated constructively, without any sensationalism, giving attention to the typical situations revealed by the investigations. In this way, local situations are depersonalized and prevention, rather than stigma, leads to better results when it comes to raising awareness.

3.2 Advice provided in confidential discussions

In this function, we are called on to provide advice to employees who request it. Before formally filing a disclosure of wrongdoing in the workplace, employees are given the opportunity to discuss the objectives of the policy. These meetings often reveal that the subject of the employee's concern can be addressed using another mechanism, such as mediation or discussion within the framework of work relations. This year, we had private meetings with five employees on various situations. One meeting led to a formal disclosure being filed with the internal officer regarding the integrity of another department. Another case was referred to a functional branch, with the permission of the person who consulted us, for follow-up and appropriate action.

3.3 Informal conflict management system

The Public Service Modernization Act, passed during 2004-05, establishes an informal discussion framework for resolving human resources conflicts. In that sense, this framework complements, as it were, the disclosure process. The screening stage, which redirects subjects who would be more appropriately dealt with using other areas of recourse, sees this new mechanism as a valid alternative. Under the Act, the departments and agencies must appoint a senior officer of the informal conflict management system. Over the next year, Passport Canada will examine the possibility of assigning this responsibility to a section offering a guarantee of impartiality, confidentiality, independence and neutrality. We have signalled our interest and availability for taking on this function.

3.4 Advice on Ethics and Values

The Values and Ethics Code for the Public Service figures in the Policy on Disclosure of Wrongdoing in the Workplace. In fact, under this Policy, violations of the Code are considered wrongful acts and must be reported. Employees who wish to obtain advice with regard to the application of the Code can contact the designated integrity champions within the departments. At Passport Canada, this responsibility is assumed by the Director General of Human Resources. Employees and managers may also direct their inquiries to the Senior Integrity Officer as well as the Public Service Integrity Office.

During 2004-05, we were approached as Senior Integrity Officer three times. It is interesting to note that on two occasions it was members of management who, proactively, inquired as to the lawfulness of actions that had not yet been taken. These actions reflect a commitment to and an awareness of values and ethical issues. In both cases, the actions established the basis of sound practices for administering charitable fundraising or specific awareness week initiatives.

4. Internal Coordination of Access to Information and Privacy

Federal departments and agencies are subject to important legal obligations with regard to Privacy and Access to Information. It can be said that those two areas generate increased activities in terms of program management. The impact of applicable legislation calls upon Passport Canada to establish operational units that are specialized in these areas. These units must develop their expertise so that they can satisfy the obligations provided for in the Act and applicable policies. We believe that these are corporate obligations which would benefit more from being under the responsibility of a branch other than ours that deals more with conflict resolution and internal governance.

However, we understand that Passport Canada wanted to take advantage of our office's characteristics of neutrality, independence and confidentiality to internally coordinate the handling of Access to Information requests and the privacy program. We are therefore reporting on activities that took place in 2004-2005 concerning these matters.

4.1 Coordinating Access to Information requests

The Privacy Act and Access to Information Act enable Canadians to access information available in federal government data banks. The delegated authority in these matters lies with the Department of Foreign Affairs Canada (FAC). The Access to Information and Privacy Protection Division (DCP) receives and processes all requests received by the Department. It forwards requests under Passport Canada's purview to ACMO. Our office coordinates the internal handling of requests, with the Agency's branches, and asks them to perform the necessary searches. ACMO then compiles the information and forwards it to DCP.

DCP reviews the information and determines what is to be disclosed, based on legislative requirements. Our office carries out a preliminary review of the information to see if certain exclusions are potentially applicable. Passport Canada has the opportunity to consult with legal services on the formulation of exclusion recommendations. Where Passport Canada recommends an exclusion, DCP performs an independent determination as to whether or not the exclusion is applicable.

Finally, ACMO compiles and regularly updates records of access requests pending at Passport Canada, to ensure that such requests receive the necessary attention.

In fiscal year 2004-2005, ACMO coordinated 14 Access to Information requests, as well as 20 consultations initiated by other departments in possession of information produced by Passport Canada. The latter cases involved access requests made to other departments, but requiring approval by Passport Canada. These actions do not account for all requests processed at Passport Canada. For a more precise picture, the table below shows which divisions were involved in responding to all activities resulting from the Access to Information Act.

4.2 Privacy

The government's policy entrusts departments and agencies with the responsibility and duty to conduct impact studies on privacy for all major initiatives in the development stage. At the Department of Foreign Affairs (FAC), which includes Passport Canada, providing expert advice in this area falls to the Privacy Protection Division (DCP). This division is institutionally independent from the branches of the department.

The division provides liaison with the Office of the Privacy Commissioner. These close relations enable DCP to provide the department with informed advice about plans under consideration. Last year, we mentioned that DCP resources were kept very busy with work generated by FAC. The specialized nature of the FAC's spheres of activity moreover means that DCP's expertise (relating to privacy issues) leans toward areas of expertise related to the department's fields of action. Passport Canada also operates in a very specific field.

During the year, the Corporate Services Branch of the Department of Foreign Affairs Canada began reviewing a group of programs, including Privacy and Access to Information. The Branch is aware of the problems of the current model. While awaiting the results of that study, the CEO of Passport Canada took immediate action to address risks inherent to the situation that we described in last year's annual report.

Funding was granted to our office. We hired a resource person to coordinate internal Access to Information requests and provide advice with regard to privacy. Thanks to this resource, we were able to provide more complete services to functional and operational branches of Passport Canada. By doing this, we lightened the duties of the delegated departmental authority in these areas, which did not have the resources to handle the workload generated by cases pertaining to the Agency.

These arrangements have proven quite positive for all parties. The delegated authority (DCP) told us it would like to see coordination mechanisms similar to ours develop throughout all branches of the department. This largely facilitates the understanding of specific and complex technical cases in each portfolio. As part of this work, in the second half of the fiscal year, our office supported four impact studies on privacy which were undertaken by Passport Canada.

Pursuant to the applicable policy, summaries of the Impact Studies on privacy must be made available to the public. However, these summaries must account for the fact that some initiatives are still pending approval or have not yet been announced, or that the disclosure of certain elements of the Studies could compromise security measures or systems. The summaries of the Studies are generally published once the initiatives are up and running.

Varia

5.1 Services for Mediating or Arbitrating Contract Disputes

These services are provided by our office on a voluntary basis. They were created as part of an initiative of the Department of Justice, which established its Dispute Resolution Services (DRS) in 1992. The Department's objective was to promote increased understanding of dispute resolutions and help integrate these processes into the policies, activities and practices of federal departments and agencies.

At Passport Canada, we offer our services in cases of conflict between the Agency and its suppliers of goods and services. Since the implementation of the service last year, no conflict has been referred to our Office for mediation or adjudication. Next year, we plan to promote the service more actively by assisting with the drafting of mediation clauses to be included in contracts entered into by the Agency.

5.2 This just in: A comprehensive framework for reform of the Access to Information Act

On April 5, 2005, the Minister of Justice presented a comprehensive framework for Access to Information reform to the Standing Committee on Access to Information, Privacy and Ethics. Naturally, we are affected by this initiative, which we believe must allow for certain responsibilities to be carried out confidentially, without which the effectiveness of the mediation and disclosure process could be seriously compromised. We plan to consider the views of the Department of Justice.

The modernization of the Access to Information Act seeks to ensure that the Act continues to meet the needs of citizens and strengthens integrity and transparency in government. Many measures have been adopted these past few years that specifically target those objectives. With regard to integrity, let us note the Policy on Disclosure of Wrongdoing in the Workplace, which gave rise to the Public Service Integrity Office. The Values and Ethics Code for the Public Service is now part of the disclosure policy, which is poised to become law.

Under this policy, senior internal disclosure officers conduct investigations. One of the fundamental principles is protection from reprisal. On the other hand, the person targeted by the disclosure has a right to a full defence. We believe that the investigations of senior officers should be excluded from the scope of the Act. We will present our arguments to this effect and give testimony with regard to alternate means aimed at meeting the objectives of government transparency, which are in perfect harmony with the objectives of the policy itself in terms of education, awareness and prevention.

With regard to the transparency of government actions, the Access to Information Act, for all its good intentions, poses significant barriers to alternate dispute resolution mechanisms (ADRMs). In 1992, the Department of Justice created the Dispute Resolution Services. Thirteen years later, there are still very few ADRMs within the federal government. In our role as Ombudsman, handling complaints from Passport Canada clients, we are concerned about the negative effects of the Access to Information Act on confidential mediation processes. It is widely known that in mediation, the interest and commitment of the parties can be obtained provided confidentiality is assured. Without it, governmental institutions would never agree, for example, to consider ex gratia payments to resolve a dispute. A public mediation sets a precedent just as a court ruling does... We also plan to develop these arguments in support of a request that federal ombudsman complaint cases be excluded from the scope of the Act, as another privilege under section 23 of the Act (mediation privilege). In return, we will present the Committee with communications options already undertaken that we feel meet the transparency and accountability requirements.