Date: 20040902
Docket: IMM-8400-03
Citation: 2004 FC 1206
Montréal, Quebec, September 2, 2004
Present: The Honourable Mr. Justice Harrington
BETWEEN:
CELONIE MERVILUS
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Mervilus, a citizen of Haïti, arrived in Canada in 1987, at the age of 19 years old, with all of his family - mother and three brothers and sisters - who came to join another sister already living in Canada for 20 years. In 1993, he was arrested for drug trafficking. Found guilty in September 1995, he received a two-year sentence for each count of drug trafficking, a sentence of four years for possession for the purposes of trafficking, and a two-year sentence for conspiracy.
[2] He was ordered to leave Canada in 1996. The execution of that order was stayed, ordered by the Appeal Division in March 1997. The stay was for a five-year period, with a review six months later and every year thereafter.
[3] This is an application for judicial review of a decision by the Immigration Appeal Division dated September 16, 2003, setting aside the stay of the deportation order and dismissing the appeal of this order against Mr. Mervilus.
[4] In the 1997 decision allowing the applicant a stay, the Appeal Division made the following points:
(a) Since his arrest in 1993, the applicant has not had any run-ins with the law. While the offence charged was serious, many factors explain it, if not excuse it. The applicant is of limited intellect, limited personal resources to find himself gainful employment. At the time of the drug trafficking, he ran a pawn shop, where associating with the wrong crowd led him down a path of crime. He is by nature very easily influenced.
(b) His family is of great help to him. They visit him at the penitentiary where he is being detained. He is making great efforts to improve his situation, taking all the courses possible to increase his chances of finding a job and function better in society. His behaviour as an inmate has been exemplary.
(c) He is the father of two children (in 1997; now three in 2004), for whom he shows a great deal of affection.
(d) The Appeal Division concludes with these words before ordering the stay:
He is not violent and poses no danger to the safety of the public. His family values are high on his priorities. His family members are educated people, and he has their strong support and understanding. He no longer has any family in his country of origin.
It is true that strict monitoring in a prison environment is conducive to such a change in behaviour for an influenceable person like the appellant and that, as a result, his return to society will not be without serious risk. To date, he remains influenceable and vulnerable. His change of course and his desire to pursue that change were expressed sincerely.
[5] There have been reviews of the case on a regular basis ever since. Mr. Mervilus was released from jail on May 7, 2002. The stay had lasted five years; the Appeal Division extended it for one year.
[6] In the 2002 decision, the Division did an overview of the years that the stay had been in effect. On the positive side, the applicant had not re-offended since 1993. On the negative side, however, the applicant's integration into Canadian society was still unsatisfactory. He did not have steady employment, he had a substantial debt with social security which still had not been paid, he failed to file documents at the Division attesting to his search for employment and employment, if any, as he had been asked to do, he failed to file income tax returns, and documents relating to the social security debt and the arrangements made to pay it.
[7] The Appeal Division determined:
It appears from this overview that Mr. Mervilus has not yet demonstrated in a satisfactory manner that he intends to make a serious effort to join the labour force and, if necessary, to settle his debts with the State. I will nonetheless give you the opportunity to do so in the coming year, since I am directing that the stay be extended for a period of one year, subject to the following conditions.
[8] The conditions were to report to the Canada Immigration Centre, to report any change of address, to refrain from the illegal use or sale of drugs, to keep the peace, etc. The last condition reads as follows:
10. At least 20 days prior to the oral review, provide the IAD and CIC with:
a) copies of tax returns for 2000 and 2001;
b) documents attesting to the determination of the amounts claimed by the department of income security and the efforts made and agreements undertaken to pay such amounts.
[9] On September 16, 2003, the applicant appeared before the Appeal Division for the annual review of the stay. For the first time since the beginning of the proceedings before the Appeal Division, he did not have counsel. At the outset of the proceedings, he requested a postponement to be able to return with counsel.
[10] The member stated that two days before the hearing, the Appeal Division had received a letter from counsel stating that she was withdrawing from the file because she was unable to contact her client.
[11] The applicant explained at the hearing that he had been in Haïti, that he had only arrived back on September 10 because he could not get a return flight, that he had spoken to counsel the day before and that she had recommended that he get a postponement and told him that next time, she could come with him.
[12] The member presiding over the hearing decided to proceed. The Notice to Appear had been dated June 5, 2003, and the applicant should have had enough time to make necessary arrangements with his counsel. The applicant explained that he had spoken with counsel in June and that she had told him that they would meet in August for the case. In August, he was stuck in Haïti without a return flight.
[13] The applicant had not filed the documents requested in the conditions of the preceding order to the member's satisfaction. He had not established that he had made progress in seeking employment or in paying his debt. He had not been diligent in his dealings with his counsel. The member determined that the applicant's integration in Canada was unsatisfactory. He lifted the stay, dismissed the appeal and made the deportation order enforceable.
ANALYSIS
[14] The applicant submits that the Court's intervention is warranted by the breach of natural justice and the fact that the Appeal Division refused the postponement so that he could retain new counsel.
[15] The respondent on the other hand submits that it was the applicant's responsibility to act diligently and to maintain contact with counsel, which he did not do. Besides, the questions raised at the hearing were questions of fact, not of law. The applicant had to establish the facts regarding his employment, his revenues, his debt. He did not do so. The respondent wrote in his memorandum: "[TRANSLATION] Contrary to what the applicant alleges, it seems clear therefore that counsel would not have made a difference in the outcome of the case".
[16] With respect, that conclusion is not obvious on reviewing the transcript. It is clear that the applicant was not able to represent himself coherently.
[17] The right to counsel in the context of an administrative proceeding is not an absolute right. However, our Court has recognized that in certain circumstances the absence of counsel has caused harm such that it was warranted to allow the judicial review.
[18] In Nemeth v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 776 (F.C.), the refugee claimants themselves waived counsel, who could not be present on the date scheduled for hearing. The Court therefore judged that that right had not been denied to them, since they themselves had chosen to proceed. Nevertheless, in the absence of counsel, the Court held that the Board had an even greater duty of fairness:
The Board was aware that the Nemeths had been represented up until just prior to the hearing. It was, or should have been, alive to the risk that the claimants were ill-prepared to represent themselves. Under the circumstances, it had an obligation to ensure that the Nemeths understood the proceedings, had a reasonable opportunity to tender any evidence that supported their claim and were given a chance to persuade the Board that their claims were well-founded. [paragraph 10]
. . . the Board's freedom to proceed in the absence of counsel obviously does not absolve it of the overarching obligation to ensure a fair hearing. Indeed, the Board's obligations in situations where claimants are without legal representation may actually be more onerous because it cannot rely on counsel to protect their interests. [paragraph 13]
[19] In that matter, the Court allowed the judicial review because the claimants were simply not able to assert their rights in a proceeding deciding their refugee claim.
[20] The right to counsel is not absolute; what is absolute, however, is the right to a fair hearing. Le Dain J. explains the importance of a fair hearing as follows in Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643:
. . . the denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a reviewing court that the hearing would likely have resulted in a different decision. The right to a fair hearing must be regarded as an independent, unqualified right which finds its essential justification in the sense of procedural justice which any person affected by an administrative decision is entitled to have. It is not for a court to deny that right and sense of justice on the basis of speculation as to what the result might have been had there been a hearing. [page 661]
[21] The case law of our Court and of the Federal Court of Appeal in immigration matters is to the effect that when the absence of counsel results in depriving the individual of his right to a fair hearing, the decision is invalid (see Castroman v. Canada (Secretary of State), [1994] F.C.J. No. 962 (F.C.T.D.); Nemeth, supra; McCarthy v. M.E.I., [1979] 1 F.C. 121 (F.C.A.); Gargano v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1385 (F.C.T.D.); De Sousa v. Canada (Minister of Employment and Immigration), [1988] F.C.J. No. 569 (F.C.A.)).
[22] In Gargano, supra, the applicant, a drug addict, had a very lengthy criminal record. A deportation order had been issued against him; at the appeal hearing he asked for yet another adjournment (the second) to retain counsel. The Board refused. Cullen J. determined that considering the applicant's incapacity to represent himself and considering the seriousness of a deportation order, it had been unfair to deny him the adjournment to retain new counsel.
[23] Glen Howard v. Presiding Officer of Inmate Disciplinary Court of Stony Mountain Institution, [1984] 2 F.C. 642 (F.C.A.) is a prison law case cited in many immigration decisions. In that case, Thurlow J.A. sets out the elements which must be considered in determining if the absence of counsel gives rise to procedural unfairness:
. . . it appears to me that whether or not the person has a right to representation by counsel will depend on the circumstances of the particular case, its nature, its gravity, its complexity, the capacity of the inmate himself to understand the case and present his defence. The list is not exhaustive. And from this, it seems to me, it follows that whether or not an inmate's request for representation by counsel can lawfully be refused is not properly referred to as a matter of discretion but is a matter of right where the circumstances are such that the opportunity to present the case adequately calls for representation by counsel.
[24] In certain cases, the right to counsel can be likened to the right to be heard. Again in Glen Howard, supra, Thurlow J.A. writes:
In this context, any right a person may have to the assistance of counsel arises from the requirement to afford the person an opportunity to adequately present his case. This particular point was observed by Goodridge J. in In re Prisons Act and in re Pollard et al. [Supreme Court of Newfoundland, February 20, 1980, unreported.] when he noted in parenthesis: "Jeopardy, of course, is not the full test, in a broader sense one is really talking about a person having the right to be heard by a tribunal."
[25] The following principles can therefore be drawn from the case law: although the right to counsel is not absolute in an administrative proceeding, refusing an individual the possibility to retain counsel by not allowing a postponement is reviewable if the following factors are in play: the case is complex, the consequences of the decision are serious, the individual does not have the resources - whether in terms of intellect or legal knowledge - to properly represent his interests.
[26] All of these factors are present in this case. The purpose of the hearing was to establish that the applicant had met the conditions for the stay. Apparently unbeknownst to the applicant, it was also a hearing to decide the appeal of the deportation order. The member brought out the shortcomings in the file; nobody argued the favourable points. The applicant learned just the day before the hearing that he would appear alone. The consequences are very serious: by removing the applicant from Canada, he is removed from the only family he has, since he no longer has family in Haïti. Moreover, he is removed from his children. The first decision in 1997 referred to the applicant's limited intellect, also an obstacle to his integrating easily in society. Reviewing the transcript, we cannot believe for an instant that the applicant had the right to a fair hearing, since he was unable to argue his case. Moreover, I would add that the applicant had a reasonable expectation of a postponement, since he had always appeared accompanied by counsel.
[27] The applicant had taken some measures to settle the social security debt. He had a job, but no evidence. The applicant could not express himself correctly or organize his presentation. He did not have in hand the evidence that he had given to his counsel. For six years, he had the right to a stay of execution of the removal order, in part due to the representation by counsel who had argued his case every year. He was obviously absolutely ill-equipped to deal with the
issue of the appeal which was decided, apparently without his awareness of it. He did not contact counsel until he received the written decision on October 13 (even though the decision was given orally on September 16). It is difficult to believe that he immediately grasped the meaning of the member's words:
[TRANSLATION]
The stay is therefore set aside and the appeal is dismissed and the deportation order is enforceable. So, I thank you, I hope you have a nice day.
[28] In my view, it is most unfair to close the file definitively without giving him the chance to be heard by an impartial tribunal.
[29] For these reasons, in my opinion the application for judicial review should be allowed and the file sent back to Appeal Division before another member.
ORDER
The application for judicial review is allowed. The file is referred for redetermination before a differently constituted panel. No serious question of general importance is certified.
"Sean Harrington" Judge
Certified true translation
Jacques Deschênes, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-8400-03
STYLE OF CAUSE: CELONIE MERVILUS
-and-
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: AUGUST 31, 2004
REASONS FOR ORDER
AND ORDER: HARRINGTON J.
DATE OF REASONS: SEPTEMBER 2, 2004
APPEARANCES:
Luc R. Desmarais FOR THE APPLICANT
Isabelle Brochu FOR THE RESPONDENT
SOLICITORS OF RECORD:
Luc R. Desmarais FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec
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