Date: 20120625
Docket: IMM-5582-11
Citation: 2012 FC 811
Ottawa, Ontario, June 25, 2012
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
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ROBEN CORPUZ LEDDA
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Applicant
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and
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THE MINISTER OF PUBLIC SAFETY
AND
EMERGENCY PREPAREDNESS
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review under section 72 of the Immigration
and Refugee Protection Act, SC 2001, c 26 (hereafter IRPA) of a decision
rendered by the Immigration Appeal Division of the Immigration and Refugee
Board (hereafter the Board) denying the applicant’s application for an
extension of time to file an appeal.
[2]
For
the reasons that follow, the application for judicial review is granted.
BACKGROUND
[3]
The
applicant, Mr. Roben Corpuz Ledda, is a citizen of the Philippines and has been
a permanent resident of Canada since 1990. His mother and siblings also
live in Canada. He is
divorced and has a teenage daughter born in Canada.
[4]
In
2004 he was charged with causing a bank to act upon a forged cheque in the
amount of $485.67. He was convicted in 2005. From that point until 2010 he was
represented by a criminal lawyer, Mr. Allen, in criminal and immigration
matters.
[5]
On
April 19, 2010, the applicant was served with a letter indicating that he had
15 days to make submission as to why he should not be found inadmissible. No
submissions were made. On June 28, 2010, the Immigration Division found the
applicant inadmissible based on his 2005 conviction and ordered him removed. No
appeal was filed. Mr. Allen never forwarded the appeal form to the applicant.
[6]
Mr.
Allen signed a statutory declaration in May 2011 stating that he had no
knowledge of immigration law, had never read the IRPA or related legislation,
had never independently researched immigration law, had never consulted an
lawyer well versed in immigration law, had not advised the applicant to consult
a lawyer familiar with immigration law, and had advised the applicant to comply
with immigration officials in order to receive a more lenient sentence on an
unrelated offence.
[7]
The
applicant, in his statutory declaration, stated that he relied on the advice of
Mr. Allen in both criminal and immigration matters. He believed he could avoid
jail by returning to the Philippines, and he thought that
compliance with immigration officials would help him obtain a more lenient
sentence. In June 2011, the applicant filed a notice of appeal to the Board and
asked for an extension of time to file an appeal or to reopen the matter.
DECISION UNDER REVIEW
[8]
The
Board found that the proper application before it was for an extension of time,
and not an application for reconsideration. In determining whether an extension
of time was required in the interest of justice, the Board considered: (1)
whether counsel’s act or omissions constituted incompetence; (2) whether
prejudice was caused to the applicant by counsel’s incompetence ; and (3)
whether, in the result, a miscarriage of justice occurred.
[9]
The
Board found that the applicant’s previous counsel had acted incompetently.
However, the Board found that the applicant’s failure to file an appeal within
time did not arise from counsel’s incompetence but rather from a strategy to
obtain a lenient sentence. Holding that the delay in filing the application was
a deliberate choice, the Board refused to exercise its discretion to grant the
extension.
ISSUES
[10]
The
sole issue in this application is the reasonableness of the Board’s decision to
deny an extension of time to file an appeal.
RELEVANT LEGISLATION
Section 58 of the Immigration Appeal Division
Rules, SOR/2002-230 is relevant to this application:
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58. The Division may
(a)
act on its own initiative, without a party having to make an application or
request to the Division;
(b)
change a requirement of a rule;
(c)
excuse a person from a requirement of a rule; and
(d)
extend or shorten a time limit, before or after the time limit has passed.
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58.
La Section
peut :
a) agir de sa propre initiative sans
qu’une partie n’ait à lui présenter une demande;
b) modifier une exigence d’une règle;
c) permettre à une partie de ne pas
suivre une règle;
d) proroger ou abréger un délai avant ou
après son expiration.
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STANDARD OF REVIEW
[11]
The
power of the Immigration Appeal Division to grant an extension of time is discretionary:
s.58(d) of the Immigration Appeal Division Rules, SOR/2002-230. It is
also a factual determination done on a case by case basis. The standard of
review is reasonableness: Dunsmuir v New Brunswick, 2008 SCC 9 at para
53; and Canada (Canadian Human Rights
Commission) v Canada (Attorney General), 2011 SCC 53 at para
16.
ANALYSIS
[12]
The
Board correctly stated the test for determining incompetence. The applicant had to
demonstrate that: 1) the counsel's acts or omissions constituted incompetence; 2)
that a prejudice was caused by the incompetence; and 3) that a miscarriage of
justice occurred as a result: R v GDB, 2000 SCC 22 at paras 26-29; Hallatt
v Canada, 2004 FCA 104 at para 20-21; and Robles v Canada (Minister of
Citizenship and Immigration), 2003 FCT 374 at paras 31-34.
[13]
In
this instance, the Board had no difficulty in finding that incompetence was
demonstrated by the evidence submitted by the applicant including his former
counsel’s statutory declaration. Counsel’s incompetence clearly prejudiced the
applicant’s ability to obtain advice about the options available to him in
dealing with the inadmissibility finding. In my view, the Board erred in
concluding that no miscarriage of justice resulted from the incompetence and
prejudice. The applicant could not make an informed decision on the options
available to him in the immigration proceedings when the deadline for filing
the appeal passed.
[14]
Miscarriage
of justice can mean a breach of natural justice that has had some effect on the
proceedings. The denial of a hearing
will constitute a miscarriage of justice: Rodrigues v Canada (Minister of
Citizenship and Immigration), 2008 FC 77 at para 39; and Gomez Bedoya
v Canada (Minister of
Citizenship and Immigration), 2007 FC 505 at para 19.
[15]
The
British Columbia Court of Appeal offers some help in the interpretation of
“miscarriage of justice” in the context of incompetence of counsel in R v
Dunbar, 2003 BCCA 667 at paragraph 26:
[26] The prejudice component requires the
appellant to show that the incompetence of trial counsel resulted in a
miscarriage of justice. Doherty J.A. discussed the meaning of "miscarriage
of justice" in this context in Joanisse, supra at 64. He
explained that a miscarriage of justice can result where the appellant
establishes a reasonable probability that but for counsel's errors, the result
of the proceedings would have been different. A reasonable probability is one
that is "sufficient to undermine confidence in the outcome" and
"lies somewhere between a mere possibility and a likelihood": Joanisse,
supra at 62; R. v. Strauss (1995), 61 B.C.A.C. 241, 100 C.C.C.
(3d) 303 (B.C. C.A.), at 319.
[16]
Here
the Board was satisfied that the applicant’s previous counsel’s actions and
omissions constituted incompetence and that the applicant was prejudiced by the
incompetence of his counsel. It is, therefore, surprising that the Board found
that Mr. Allen’s incompetence did not result in a miscarriage of justice. The
applicant was not advised that he had a right of appeal from the inadmissibility
finding. Given his long residence in Canada, his family ties to this country and the nature
of the criminal conviction an appeal could have been successful. It was
unreasonable for the Board to conclude that no miscarriage of justice resulted
from the incompetence and prejudice. In the particular circumstances of this case,
the interests of justice called for an extension of time to be granted: Groupe
Westco Inc v Nadeau Poultry Farm Limited, 2011 FCA 13 at para 10.
[17]
Although
the decision to grant an extension of time is discretionary, the Board could
not ignore the role of counsel in this case. The Board’s finding that the
applicant’s “strategy” – stemming from his counsel’s incompetence– cannot
result in a miscarriage of justice falls outside the range of acceptable
outcomes justifiable on the facts and the law.
[18]
The
application is granted. No question for certification was proposed by the
parties.
JUDGMENT
THIS COURT’S
JUDGMENT is that:
1. the applicant
is granted;
2. the matter is
remitted for consideration by a differently constituted panel in accordance
with the reasons provided; and
3. no question
is certified.
“Richard
G. Mosley”
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