Law Times

Page 14 February 11, 2013 Law Times • caselaw CaseLaw is a weekly summary of notable civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada, and all Ontario courts. FEDERAL COURT OF APPEAL Constitutional Law CHARTER OF RIGHTS No obligation on board to structure hearing so constitutional arguments heard last Applicant from Saint Vincent and Grenadines, while living in Canada without status, had brain tumor removed and as result suffered from hormonal deficiency. Applicant sought refugee status, and later applied for permanent residence on humanitarian and compassionate (H&C) grounds. Board found that applicant not Convention Refugee or person in need of protection. Application for judicial review dismissed and following question certified: does board violate s. 7 of Canadian Charter of Rights and Freedoms if it declines to postpone hearing based on risk to life where there is pending H&C application also based on risk to life? Applicant appealed. Applicant's right to request adjournment so he could exhaust non-constitutional remedies did not create corresponding obligation on board to structure hearing so that applicant's constitutional arguments were heard last. Consequence of board's finding that applicant would not be at risk if he were removed was that his ss. 7 and 15(1) Charter claims lacked evidentiary foundation. It followed that it was not necessary to consider application judge's analysis of Charter arguments. Laidlow v. Canada (Minister of Citizenship and Immigration) (Oct. 10, 2012, F.C.A., Noel, Dawson and Stratas JJ.A., File No. A-77-12) Decision at 213 A.C.W.S. (3d) 444 was affirmed. 221 A.C.W.S. (3d) 942. Privacy Legislation Overbroad claim of confidentiality was wrong at law This was appeal of dismissal of application for judicial review. Appellant was lawyer and represented or advised persons in conjunction with immigration proceedings or applications. Citizenship and Immigration Canada ("CIC") decided that appellant was not "authorized representative" as defined in s. 2 of Immigration and Refugee Protection Regulations (Can.). Result was that appellant was no longer able to provide services to his clients. Appellant made request for access to information under Privacy Act (Can.). CIC refused appellant's request based on third-party information and solicitor-client exemptions found in ss. 26 and 27 of Act. Appellant applied for judicial review. Applications judge held that CIC correctly found that withheld information fell within ss. 26 and 27 of Act and that discretionary decision not to disclose exempt material was reasonable. Applications judge dismissed judicial review application. Appeal allowed. Contents of confidential record were problematic because it contained non-confidential information and submissions. Overbroad claim of confidentiality was wrong at law. Proceedings of Canadian courts were open and accessible to public. Fairness required that party know case to be met. CIC failed to provide evidentiary basis that was sufficient to permit appellate court or Federal Court to properly review decision to withhold access to personal information from appellant. Decisions of administrative decision-makers must be transparent and intelligible. Evidentiary record was so thin that court could not properly assess whether decisions were correct or reasonable. It could not be determined who applied exemptions to documents, what definition of exemptions was used and what consideration was given to exercise of discretion. Material did not provide court with basic information it needed to discharge its role on judicial review. Reasons did not show that decision-maker was aware of discretion to release exempted information and exercised discretion in one way or other. Decision could not be rendered on paucity of evidence. Case was remitted to different decision-maker for redetermination. Leahy v. Canada (Minister of Citizenship and Immigration) (Sep. 4, 2012, F.C.A., Dawson, Trudel and Stratas JJ.A., File No. A-302-11) Decision at 206 A.C.W.S. (3d) 152 was reversed. 221 A.C.W.S. (3d) 1009. FEDERAL COURT Immigration EXCLUSION AND EXPULSION Series of events did not establish abuse of process Application for judicial review of deportation order. Applicant was citizen of Australia who arrived as minor in 1969. Applicant married Canadian citizen, who was now deceased, in 1973 and they had child in 1974. Applicant's family in Canada were all citizens. When applicant arrived, her sister began sponsorship process but applicant married before it was complete These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-565-6967. and her husband incorrectly informed her she had automatic status because of marriage. Applicant had been convicted of numerous offences, including theft, fraud, impaired driving and failure to comply with court order. In 2011, CBSA took applicant into custody, interviewed her and issued inadmissibility report. Delegate considered amount of time applicant had been in Canada, fact she was receiving widow's pension and was well-established in community but recommended removal because of criminal convictions and fact applicant did not renew status even when she found it was lacking. Applicant did not attend scheduled meeting with delegate, who had to attend her house and take her into custody for interview. Applicant argued delegate erred in not referring matter to immigration division for hearing, breached procedural fairness, failed to consider humanitarian and compassionate grounds and order was abuse of process because of seven-year delay. Application dismissed. Applicant did not contest criminality findings so, pursuant to s. 228(1)(a) of immigration and refugee protection regulations (Can.), any removal order had to be deportation order. Delegate did not err in failing to refer matter to Immigration Division and, in fact, would have exceeded jurisdiction had she done so. It was well-established that duty of fairness under s. 44 Immigration and Refugee Protection Act (Can.), was relaxed and consisted of right to make submissions and obtain copy of report. Applicant was granted these rights and more. Contrary to applicant's submissions, H&C factors were not relevant to s. 44 admissibility process. Respondent was not aware of applicant's lack of status until 2004. Immigration officer then advised applicant to obtain temporary resident permit. Applicant did, but failed to renew it when it expired in 2007. Inadmissibility report was issued in 2011. Series of events did not establish abuse of process and delay did not impair applicant's ability to respond. Finta v. Canada (Minister of Public Safety and Emergency Preparedness) (Sep. 25, 2012, F.C., O'Keefe J., File No. IMM-628511) 221 A.C.W.S. (3d) 931. INADMISSIBLE AND REMOVABLE CLASSES Board erred in requiring proof applicant under cartel's physical control at all times Application for judicial review of inadmissibility finding. Applicant was citizen of Mexico who began using drugs at age 12, and was addicted to crystal meth www.lawtimesnews.com by age 18. Applicant's drug dealers began beating him and forcibly recruited him into Sinaloa Cartel. Applicant was taken to house each day to package and sell drugs and occasionally deliver protection money to police. Applicant was not paid and was frequently beaten and his life and his mother's life were threatened. Applicant was given more drugs to feed his addiction. House applicant was working in was raided so applicant told police what was happening in effort to escape cartel. Police instead delivered applicant to cartel members, who severely beat and stabbed him and threatened to kill him for talking to police. Applicant overdosed and was thrown from truck outside rehabilitation facility. Applicant's mother moved him to another facility under assumed name and he overcame addiction. Applicant and mother moved to another town for two years and assumed it was safe to return to hometown, but cartel members shot at applicant, so he fled to Canada. Board accepted applicant's entire story but did not accept applicant's claim he was acting under duress. Applicant conceded he was involved in criminal organization. Application allowed. Board found applicant did not establish imminent peril because he was able to return to mother's house each night. Board erred in requiring the applicant to establish he was under the cartel's physical control at all times. Board failed to consider applicant's experiences and documentary evidence of cartel violence in assessing imminence of peril. This error tainted board's findings on second part of test as it noted the elements blended together. Board further erred in failing to address impact of applicant's drug addiction on his ability to find safe avenue of escape. Board essentially blamed harm that befell applicant on fact that he began to take drugs. Gayton v. Canada (Minister of Public Safety and Emergency Preparedness) (Sep. 11, 2012, F.C., Mactavish J., File No. IMM-83612) 221 A.C.W.S. (3d) 935. PERSON IN NEED OF PROTECTION Member could take into account history of fraud in order to assess credibility Application under s. 72(1) of Immigration and Refugee Protection Act (Can.), for judicial review of decision of board determining that applicant was not convention refugee nor person in need of protection. Applicant was citizen of China. Applicant claimed that her father was sentenced in China following interception by Chinese authorities of Christian bible sent by applicant, and that warrant was issued for her arrest. Applicant filed for refugee protection claiming fear of persecution on basis of her religious beliefs. Board concluded that applicant lacked credibility. Application dismissed. There was no breach of procedural fairness. Member could reasonably conclude that applicant was not credible. Member could reasonably take into account applicant's criminal history of fraud in order to assess her overall credibility. Applicant could provide no evidence of having sent religious material to her father. Huang v. Canada (Minister of Citizenship and Immigration) (Aug. 20, 2012, F.C., Montigny J., File No. IMM-5993-11) 221 A.C.W.S. (3d) 941. REFUGEE STATUS Board brushed aside translation issue at hearing and ignored it after hearing Application for judicial review of denial of refugee claim. Applicants were citizens of Mexico who alleged fear of gang which had attempted to force principal applicant, who was dairy merchant, to sell drugs on its behalf and had harassed, assaulted and threatened principal applicant and his wife. Board found applicants did not fall within s. 96 of Immigration and Refugee Protection Act (Can.), due to their lack of nexus to convention ground, nor did they fall under s. 97(1) as risk was not personalized. Board also found applicants had not rebutted presumption of state protection and lacked credibility. During hearing applicant's counsel had objected to translation and was directed to file written request for audit at conclusion of hearing, which applicants' counsel did. No investigation of complaint took place. Applicants contended that procedural fairness was breached by board's decision to proceed with hearing over objection of applicants to quality of interpretation. Application granted. An informed person viewing matter realistically and practically would have concluded that applicants' right to procedural fairness was breached. Issue was raised as soon as it was discovered by applicants so there was no issue of waiver. Applicants discharged their duty by raising issue, but board had not discharged its duty as issue was brushed aside at hearing and ignored after hearing. Remedy for denial of right to fair hearing must be to render decision invalid, regardless of whether it would have likely resulted in different decision. Therefore, board's decision

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