Date: 20090130
Docket: IMM-2147-08
Citation: 2009 FC
104
OTTAWA, ONTARIO, JANUARY 30,
2009
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
HENRI
JEAN-CLAUDE SEYOBOKA
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1]
This is an
application for judicial review of the decision of the Immigration and Refugee
Board, Refugee Protection Division (the “Tribunal”), dated May 1, 2008,
dismissing the applicant’s motion to reopen his claim for refugee protection
pursuant to s. 72(1) of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (the “IRPA”).
BACKGROUND
[2]
The applicant is a
citizen of Rwanda, where he was born on July 22, 1966. He
came to Canada on January 17, 1996 and made a refugee
claim upon arrival. He was granted refugee status on October 25, 1996. At
that time, he made no mention of his membership in the Forces Armées
Rwandaises, the Rwandan military (“FAR”), either at the port of entry, in his
Personal Information Form (“PIF”), or during his refugee hearing.
[3]
On November 1, 1996,
the applicant filed an Application for permanent residence in Canada. Once again, he concealed his membership in the FAR.
[4]
In March 1998, two
people from the International Criminal Tribunal for Rwanda (“ICTR”) and Mr. André Denault, from the RCMP, came to the
applicant’s house in Canada to interview him about Colonel
Bagosora. They were looking for Colonel Bagosora due to his involvement in
crimes against humanity committed during the Rwandan genocide. It is only
after this interview that the applicant filed an amended version of his PIF to
reflect the fact that he had served in the Rwandan army at the time of the
genocide in April 1994.
[5]
Around September
2000, Mr. Claude Beaupré, hearing officer for the Canada Border Services Agency
(“CBSA”) contacted the War Crimes Unit of the RCMP to ascertain the status of
their file on the applicant. He learned that the RCMP’s investigation on the
applicant was still ongoing.
[6]
On October 13, 2000,
two investigators from the War Crimes Unit of the Department of Citizenship and
Immigration (“CIC”) met with the applicant. According to the interview notes,
the applicant then admitted to serving in the FAR between January 21, 1991, and
June 28, 1994. He claimed that he quit the FAR because he became “bitter”.
[7]
In April 2002, a
lawyer from ICTR telephoned the applicant and came to his house. He
subsequently faxed a file the ICTR had on him, including testimony from an
anonymous witness, DAS, who told the ICTR that the applicant had killed a woman
named Francine.
[8]
Sometime in late 2001
or early 2002, the applicant spoke to his childhood friend, Jean Claude
Ndungutse, the grandson of Bishop Sebununguri, a bishop of the Anglican Church
in Rwanda. The applicant learned that Bishop
Sebununguri had been interviewed by the RCMP about the applicant’s alleged
involvement in Francine’s death. On January 29, 2003, the applicant also spoke
to his former cook, Aimable Rutanemara, in Kigali, Rwanda.
Mr. Rutaremara told the applicant that two RCMP officers came to see him and
asked him about Francine’s death; he apparently said to the applicant that he
had told the RCMP officers that the applicant was not in any way involved. The
applicant, however, has not been able to obtain affidavits from either Bishop
Sebununguri or Mr. Rutaremara attesting to these facts.
[9]
In September 2004,
while in Ottawa for another file, Mr. Beaupré met with
an officer from the War Crimes Unit of the RCMP, Mr. Guy Poudrier, and asked
him about the status of their file on the applicant. Mr. Poudrier told the
Minister’s representative that the RCMP investigation on the applicant was
still ongoing and that the Crown was reviewing the file in order to determine
if criminal charges could be laid against the applicant. The RCMP officer said
that until a decision was made on this subject, CBSA could not use documents
from the RCMP file for immigration purposes.
[10]
Mr. Poudrier did
allow Mr. Beaupré to consult the RCMP file for five minutes. Mr. Beaupré
attests, however, that Mr. Poudrier did not allow him to make copies of
documents. Mr. Beaupré further attests that he did not read the witness
statements. Knowing that he could not use the RCMP information, Mr. Beaupré
says he stopped consulting the file. Finally, Mr. Beaupré claims that during
the meeting with Mr. Poudrier, there was no allusion to the statements of
Bishop Sebununguri or of Mr. Rutaremara, and he did not gain knowledge of these
statements.
[11]
On November 1, 2004,
the applicant sent a letter to CIC, attached to which were two documents
referring to his involvement in war crimes in Rwanda
during the genocide. These documents were the written statements by the
anonymous witness DAS, mentioned above, and the charge against Protais
Zigiranyrazo before the ICTR. According to this indictment, Second-Lieutenant
Jean-Claude Seyoboka manned a barricade with members of the Rwandan military
and a militia (the Interahamwe), and they were ordered to kill all the Tutsis
that would be found as a result of a search of neighbouring houses. The
relevant paragraphs of that indictment read as follows:
Le barrage routier de Kiyovu
11. En particulier, le ou vers
le 7 avril 1994, les militaries affectés à la garde de la résidente de Protais
Zigiranyirazo sise dans la cellule de Kiyovu, prefecture de Kigali-Ville, ont
ordonné aux gardiens employés dans les maisons du quartier de tenir un barrage
routier érigé entre le domicile de Protais Zigiranyirazo et l’église
presbytérienne qui le jouxtait. Ce barrage routier qui était le plus grand de
Kiyovu, était contrôlé par des militaires et des Interahamwe, notamment
le sous-lieutenant Jean Claude SEYOBOKA, BONKE et Jacques KANYAMIEZI. Les
civils qui y montaient la garde étaient armés de machettes et de gourdins.
12. Environ une semaine plus
tard, à une date indéterminée de la mi-avril 1994, Protais Zigiranyirazo a
ordonné aux militaires et aux Interahamwe de faction au barrage jouxtant
sa résidence de Kiyovu de fouiller les maisons du voisinage et de tuer tous les
Tutsis qu’ils y trouveraient. Protais Zigiranyirazo a également ordonné aux
hommes qui contrôlaient le barrage de tuer tout Tutsi qui tenterait de franchir
ce barrage routier. Peu après, les militaires et les Interahamwe se
sont mis à tuer, sans discontinuer, des gens qu’ils ont trouvés chez eux-mêmes
ainsi que toute personne identifiée comme tutsie, tentant de franchir ledit
barrage routier.
[12]
On March 4, 2005, the
applicant, represented by counsel, filed an application for leave and judicial
review seeking a mandamus to compel CIC to render a decision on his permanent
residence application. Leave was granted on May 16, 2005, and a hearing on the
merits of the application for mandamus was scheduled to take place on September
12, 2005. The Federal Court ordered CIC to produce a certified copy of its
file, which it did, providing the applicant with 181 pages from his immigration
file. On September 30, 2005, the Court denied the applicant’s application for
the issuance of the writ of mandamus.
[13]
On June 30, 2005, the
respondent made an application to vacate the applicant’s refugee protection
pursuant to section 109 of the IRPA and to exclude him from the definition of
“Convention Refugee” and that of protected person pursuant to sections 1F(a),
(b) and(c) of the United Nations Convention relating to the Status of
Refugees (“UNCRSR”). The notice of application to vacate listed all the
grounds relied on by the Minister to support his allegation that the
applicant’s refugee protection should be vacated and that he should be excluded
in light of his complicity in war crimes and crimes against humanity. A copy
of the exhibits relied on by the Minister in support of the application was
also attached to the notice.
[14]
There were three
hearings for the Application to vacate, held on February 22, 2006, and May 30
and 31, 2006. Before the first hearing, the applicant’s counsel, then Me
Nicole Goulet, sent the Minister a copy of the Exhibits that she intended to
rely upon at the hearing. She did not refer to any witness. At the first
hearing, Me Goulet did not request further disclosure. Following this hearing,
the applicant forwarded a second list of documents he intended to use.
[15]
The applicant was
sent a notice to appear at the second hearing, which included information on how
to call witnesses for the hearing. On May 5, 2006, the applicant sent a third
list of documents he intended to file at the hearing. He referred to Senator
Romeo Dallaire as his sole witness.
[16]
On September 29, 2006,
the applicant’s refugee status was vacated on the basis that the applicant had
obtained refugee status as a result of a material misrepresentation about his
identity as an officer in the FAR. Moreover, the Tribunal excluded the
applicant from the definition of Convention refugee and of protected person
pursuant to sections 1F(a), (b) and (c) of the UNRCSR because the Tribunal
found that he was complicit in crimes against humanity during the Rwandan
genocide.
[17]
The Tribunal found
that the applicant was, if not a participant, at least complicit in the
criminal acts committed by the FAR. Objective evidence demonstrated that the
FAR participated largely in the terrible events that took place in Rwanda. The military systematically participated in the massacres
and gave the authority and provided the example for others to follow. The FAR
was an organization with a limited brutal purpose. There was abundant evidence
that the FAR intervened militarily on the side of the “génocidaires”. The
Tribunal additionally found that the applicant was personally involved in the
murder of his neighbour Francine, who he murdered because she wouldn’t have sex
with him.
[18]
The Tribunal also
found that the applicant gave vague responses regarding what he was up to
between April 7, 1994, and April 16, 1994, when the massacres were in full
rage. In its view, it was simply implausible that the applicant had no idea
that massacres were taking place around him. The Tribunal concluded that the
applicant did not have a clear conscience in lying about his involvement with the
military and that the applicant continued to belong to the FAR during the
massacres and was thus complicit in the accomplishments of its objectives.
[19]
On October 26, 2006,
the applicant filed an application for leave and for judicial review of the
decision to vacate his refugee protection; this application was denied by the
Court on February 6, 2007. Subsequently, the applicant filed a motion asking
the Court to set aside this decision; this motion was also rejected on June 6,
2007.
THE IMPUGNED DECISION
[20]
On September 20, 2007,
the applicant submitted to the Tribunal an application to reopen the Tribunal’s
decision to vacate his refugee status. In support of his application to
reopen, the applicant alleged that the respondent had breached natural justice
in the applicant’s vacation proceedings by not disclosing the potentially
exculpatory testimonies of Bishop Sebununguri and Mr. Rutaremara undertaken by
the RCMP.
[21]
The Tribunal came to
the conclusion that there was no breach of natural justice which could give
rise to a reopening of the hearing, for the following reasons. First, the
Tribunal concluded that the applicant knew the RCMP had met with Bishop
Sebununguri and Mr. Rutaremara, but did not raise the issue of disclosure or
mention them as witnesses who could attest to his innocence at the vacation
hearing or in the subsequent application for leave and judicial review of the
decision to vacate his refugee protection. Thus, the applicant was barred from
raising the disclosure issue after there was a final decision against him.
[22]
Second, the Tribunal
found that even if the exculpatory statements of Bishop Sebununguri and Mr.
Rutaremara had been introduced and given full weight, the applicant might still
have been found excluded on the basis of his complicity to crimes against
humanity by reasons of his active involvement in the FAR. Since the applicant
did not allege the existence of exculpatory evidence regarding his involvement
with the FAR, the Tribunal found that the undisclosed information was not
determinative and the applicant would have been found to be complicit even if
the exculpatory statements had been admitted.
[23]
Thirdly, the Tribunal
held that the applicant was not prejudiced by the fact that he was
unrepresented for part of his vacation hearing. The presiding member of the
Tribunal informed the applicant of his rights and explained to him the
procedure of the Tribunal. Moreover, the applicant was represented by counsel
during his application for leave and judicial review challenging the decision
to vacate his refugee protection, yet never raised any issues relating to
disclosure at that time.
ISSUES
[24]
Counsel for the
applicant argued before this Court that, at the time of the proceedings against
him, the applicant knew that the RCMP had interviewed at least three witnesses
in Rwanda who exculpated the applicant of any
wrongdoing. What he did not know was that the RCMP had recorded or transcribed
these interviews. The applicant had received disclosure of the evidence the
Minister relied on to vacate his refugee status, but he was unaware that his
file might contain other relevant and even exculpatory evidence as he did not
know the practices of the RCMP regarding the collection and retention of
evidence. It is only when he had read a news item about the experiences of
another Rwandan facing similar allegations and after meeting him that he
understood he had been treated unfairly.
[25]
As a result, counsel
for the applicant submits the following five issues arise in this application
for judicial review:
1- What is the appropriate standard of
review of the Tribunal’s decision not to reopen the application to vacate the
applicant’s refugee protection?
2 – Does the Minister have a duty to
disclose exculpatory evidence in vacation proceedings?
3 – If so, did the Minister breach her
duty to disclose exculpatory evidence?
4 – Did the Tribunal err in law by
concluding the applicant was barred from raising the issue of disclosure at
this point?
5 – Did the Tribunal err in law by
concluding there was no breach of natural justice?
ANALYSIS
[26]
Pursuant to Rule 55
of the Refugee Protection Division Rules (the “RPD Rules”), a claimant
may make an application to reopen a claim for refugee protection that has been
decided. The application must be allowed if it is established that there was a
failure to observe the principle of natural justice:
|
55. (1) A
claimant or the Minister may make an application to the Division to reopen a
claim for refugee protection that has been decided or abandoned.
(4) The
Division must tallow the application if it is established that there was a
failure to observe a principle of natural justice.
|
55.
(1) Le demandeur d’asile ou le ministre peut demander à la Section de rouvrir
toute demande d’asile qui a fait l’objet d’une décision ou d’un désistement.
(4)
La Section accueille la demande sur preuve du manquement à un principe de
justice naturelle.
|
[27]
In Dunsmuir v.
New Brunswick, [2008] 1 S.C.R. 190, the Supreme Court
of Canada stated that a standard of review analysis need not be conducted in
every instance where the standard of review applicable to the particular
question before the court is well-settled by past jurisprudence.
[28]
Before Dunsmuir,
the jurisprudence dealing with motions to reopen under RPD Rule 55 held that
the standard of review was reasonableness simpliciter: see, for ex., Nazifpour
v. Canada (Minister of Citizenship and
Immigration), 2005 FC
1694; Masood v. Canada (Minister of Citizenship and
Immigration), 2004 FC
1224. On the other hand, it has been made abundantly clear that the standard
of review to be applied to issues of breach of natural justice is correctness
(see Sketchley v. Canada (Attorney General), 2005 FCA 404, at paragraph 46.
[29]
As a result, I will
apply the correctness standard with respect to the requirements of natural
justice and whether they have been followed in the present case; whenever
factual determinations will be at play in resolving these issues, however, they
will be reviewed against the standard of reasonableness.
[30]
The applicant
contends that the Crown had evidence from witness interviews clearly
exculpating the applicant of any crimes against humanity in its possession well
before the outset of the application to vacate the applicant’s refugee status.
In failing to include this evidence in the disclosure provided to the applicant
prior to the vacation proceedings, the respondent allegedly breached its duty
to disclose as discussed in R. v. Stinchcombe, [1991] 3 S.C.R.
326, and violated the applicant’s right to natural justice as well as his right
to life, liberty and security of the person pursuant to s. 7 of the Charter.
[31]
There are a number of
problems with this submission, which I will now address in turn. First of all,
the exculpatory nature of the statements given to the RCMP by Bishop Sebununguri
and Aimable Rutaremara is purely speculative at this stage, as neither one has
filed an affidavit in support of the applicant’s position, admittedly for
reasons out of the applicant’s control.
[32]
More importantly, Mr.
Beaupré claims to have had no knowledge of the existence of any declarations of
these two witnesses; that being the case, the respondent’s representative would
have had no knowledge of the contents of these statements, exculpatory or
otherwise. Indeed, the respondent in the case at bar did not use the
testimonies of Bishop Sebununguri or Mr. Rutaremara or any other RCMP document
at the hearing. Instead, Mr. Beaupré questioned the applicant on the basis of
documents that the applicant himself had provided to the immigration
authorities, that is, the testimony by DAS and the indictment of Protais
Zigiranyirazo before the ICTR.
[33]
The applicant retorts
that for the purposes of disclosure obligations, the Crown is indivisible.
Relying on the integrated nature of the War Crimes Unit and on the close
cooperation of the War Crimes sections in Department of Justice, the CBSA, and
the RCMP, the applicant contends that the Minister breached her legal
obligation to make inquiries of all agencies involved in investigating the
applicant to ensure a complete record was disclosed.
[34]
A careful review of
the case law on disclosure leads me to the conclusion that this is much too
broad a proposition. One must never loose sight of the fact that the Refugee
Protection Division of the Immigration and Refugee Protection Board is an
administrative tribunal with specialized knowledge, not bound by legal or
technical rules of evidence. As a result, the disclosure standards delineated
in Stinchcombe do not necessarily apply automatically in the context of
a refugee hearing and may require some adaptation. On the other hand, I agree
with the applicant that the level of disclosure owed to an applicant cannot be
decided by a simple invocation of the distinction between criminal and
administrative proceedings, and that the consequences of an adverse finding on
the applicant must be taken into consideration. As the Supreme Court wrote in Charkaoui
v. Canada (Minister of Citizenship and
Immigration), 2007 SCC
9, at para. 20:
Section 7 of the Charter requires
not a particular type of process, but a fair process having regard to the
nature of the proceedings and the interests at stake: United States of
America v. Ferras, [2006] 2 S.C.R. 77, 2006 SCC 33, at para. 14; R.
v. Rodgers, [2006] 1 S.C.R. 554, 2006 SCC 15, at para. 47; Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631, at pp. 656-57. The
procedures required to meet the demands of fundamental justice depend on the
context (see Rodgers; R. v. Lyons, [1987] 2 S.C.R. 309, at p.
361; Chiarelli, at pp. 743-44; Mount Sinai Hospital Center v. Quebec
(Minister of Health and Social Services), [2001] 2 S.C.R. 281, 2001 SCC 41,
at paras. 20-21). Societal interests may be taken into account in
elucidating the applicable principles of fundamental justice: R. v.
Malmo-Levine, [2003] 3 S.C.R. 571, 2003 SCC 74, at para. 98.
[35]
On the basis of the
five factors found to be relevant in Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817, in determining the
content of the duty of fairness in a particular set of circumstances, I am
prepared to accept that an applicant is entitled to a high degree of procedural
fairness in a proceeding to vacate his refugee status based on alleged
omissions of participation in war crimes and crimes against humanity. I rely
for that finding more particularly on the consequences for the applicant to be
branded as a war criminal, and on the adversarial nature of such a proceeding.
Indeed, the Federal Court of Appeal came to that very conclusion in the context
of a finding of exclusion based on Article 1F(a) and (c) of the Convention, and
opined that it entails the obligation for the Minister to disclose relevant
information:
Paragraph 69.1(5)(a) of the Immigration
Act requires that the Tribunal afford the refugee claimant a “reasonable
opportunity” to present evidence, cross-examine witnesses, and make
representations. Although Stinchcombe, a criminal case, does not apply
directly in the immigration context, it is nonetheless instructive. Counsel
for the Minister conceded in oral argument, correctly, in my respectful view,
that where the Minister alleges exclusion under Article 1F of the Convention,
the Minister does owe a duty to disclose information relevant to the refugee
claim. This concession is consistent with some of the literature regarding
disclosure in the administrative context.
Siad v. Canada (Secretary of State), [1997] 1 F.C. 608.
[36]
Counsel for the
applicant relied on the recent decision of Canada
(Justice) v. Khadr,
2008 SCC 28, where the Supreme Court found that Khadr was entitled to
disclosure of the records of the interviews, and of information given to U.S.
authorities as a direct consequence of conducting the interviews. In that
case, the Court based its conclusion on Khadr’s section 7 disclosure rights rather
than directly applying Stinchcombe. While it is true that, strictly
speaking, there was no criminal proceeding taking place in Canada, the fact remains that the ultimate proceedings for which
disclosure was sought were military in nature, with potential attending
consequences far more dire than criminal proceedings. Moreover, Mr. Khadr’s
Charter right to life, liberty and security of the person was triggered due to
Canada’s participation in providing information to U.S. authorities in relation to a process which is contrary to Canada’s international human rights obligations.
[37]
At the hearing, the
applicant has made much of the recently released decision in Charkaoui
v. Canada (Minister of Citizenship and
Immigration)¸2008 SCC
38, where the Supreme Court recognized certain disclosure obligations in the
security certificate context. Once again, the Court confirmed that the
constitutional guarantees deriving from section 7 of the Charter do not turn on
the areas of law involved, but on the consequences of the state’s actions for
the individual (para. 53). Dealing more specifically with the duty to
disclose, the Court went on
[56] In La (para. 20), this
Court confirmed that the duty to disclose is included in the rights protected
by s. 7. Similarly, in Ruby v. Canada (Solicitor General), [2002] 4 S.C.R. 3, 2002 SCC 75, at
paras. 39‑40, the Court stressed the importance of adopting a
contextual approach in assessing the rules of natural justice and the degree of
procedural fairness to which an individual is entitled. In our view, the
issuance of a certificate and the consequences thereof, such as detention,
demand great respect for the named person’s right to procedural fairness.
In this context, procedural fairness includes a procedure for verifying the evidence
adduced against him or her. It also includes the disclosure of the
evidence to the named person, in a manner and within limits that are consistent
with legitimate public safety interests.
[38]
Despite counsel for
the applicant’s forceful and cogent argument, I have not been convinced that
this second Charkaoui decision is determining in the present case. In Charkaoui,
the Canadian Security Intelligence Service (“CSIS”) played a central role in
the security certificate proceeding, and the consequences of that proceeding
could be dismal for the applicant. As the Court observed:
[54] Investigations by CSIS play a
central role in the decision on the issuance of a security certificate and the
consequent removal order. The consequences of security certificates are
often more severe than those of many criminal charges. For instance, the
possible repercussions of the process range from detention for an indeterminate
period to removal from Canada, and sometimes to a risk of persecution,
infringement of the right to integrity of the person, or even death.
Moreover, as Justice O’Connor observed in his report, “the security certificate
process . . . provides for broader grounds of culpability and lower
standards of proof than criminal law” (Commission of Inquiry into the Actions
of Canadian Officials in Relation to Maher Arar, A New Review Mechanism for
the RCMP’s National Security Activities, at p. 436).
[39]
The implications
of the decision not to reopen the refugee vacation hearing of the applicant,
though serious, do not compare to the consequences of issuing and validating a
security certificate. But may be more importantly, the RCMP did not play a
role even approaching that of CSIS in the decision to seek the vacation of the
applicant’s refugee status. As previously mentioned, the RCMP War Crimes Unit
had no role in the CBSA investigation, and the CBSA did not rely on RCMP
intelligence relating to the applicant. As a matter of fact, the RCMP War
Crimes Unit refused to provide any of its intelligence to the CBSA.
[40]
Contrary to the
applicant’s submissions, the CBSA and the RCMP were divisible for the purpose
of disclosure. Each agency was conducting separate investigations against the
applicant for administrative law and criminal law purposes, respectively. The
cooperation between the RCMP, CBSA, and the Department of Justice does not put
an end to the divide between the police and the government. The RCMP has a
common law investigative privilege, which can only be modified by statute.
Until this is done (and cooperation between the three War Crime Units is
certainly not explicit enough to be equated to such a curtailment of the
privilege), the RCMP is entitled and, indeed, has a duty not to share the
fruits of its criminal investigations with other agencies or departments of the
government.
[41]
The applicant relied
on a few cases where the RCMP and the Crown were found to be indivisible for
disclosure purposes. But each of these cases can be distinguished on their
facts. In R. v. Styles, [2003] O.J. No. 5824 (Ont. S.C.J.), the
Court held that any and all material, directly or indirectly connected to the
charges before the Court, whether or not in the actual possession of the Crown,
can properly be said to be in their constructive possession and must be
disclosed if the material is in the possession of the same police service as is
responsible for the particular prosecution at hand.
[42]
In R. v. Smith,
2007 ABQB 172 (Alta Q.B.), what was sought to be produced was an internal
administrative review within the RCMP that had been ordered as a result of the
death of one RCMP officer and injuries to another following a car accident. It
was determined that this material was so factually and intrinsically connected
with the circumstances of the criminal charge of dangerous driving causing
death and dangerous driving causing bodily harm that it had to be considered as
one of the fruits borne out of the investigation and disclosed as part of the
criminal prosecution.
[43]
These two decisions
are strikingly different from the case at bar. First of all, the relationship
between the Crown and the material in the hands of the police for which the
Crown was held to be in constructive possession was much more intimate in both
of these cases than was the case here between the CBSA and the RCMP. Second,
the duty to disclose was applied in the context of a criminal prosecution, and
it was the information gathered for other purposes that was ordered disclosed;
here, it is the information collected as a result of an ongoing investigation
that is sought in the context of an administrative procedure.
[44]
It is to be noted
that even these two cases do not question the general principle that the Crown
and the police are separate entities for the purposes of disclosure. In Stinchcombe,
the Supreme Court held that prosecutors have a duty to disclose relevant
matters which the investigation of the crime has disclosed and which are within
the control of the prosecutor. If the information is within the control of a
third party, a separate procedure has to be followed, as laid out in R.
v. O’Connor, [1995] 4 S.C.R. 411. It would set a dangerous
precedent if this demarcation line was to be blurred, under the pretext that
the Crown and the police were indivisible. Except in the most exceptional
circumstances, an administrative agency should not have access to the file of a
police force gathered as a result of an ongoing investigation, let alone be
held responsible for not disclosing that information.
[45]
Be that as it may,
and even if the Minister did have a duty to disclose the testimonies of Bishop
Sebununguri or of Mr. Rutaremara, it would make no difference to the outcome of
this case since the applicant waived his alleged right. Having carefully
reviewed the entire file, I am of the view that it was entirely reasonable for
the Tribunal to hold that the applicant’s failure to raise the insufficiency of
the disclosure at the earliest opportunity bars him from raising it now.
[46]
In his affidavit, the
applicant alleges that he has been aware since late 2001 or early 2002 that the
RCMP had been investigating his involvement in Francine’s death. He also knew
that Bishop Sebununguri had been interviewed by the RCMP and that the Bishop
had told the RCMP that he was innocent. He also learned, in January 2003, that
the RCMP had met his former cook, Aimable Rutaremara, and other people, who
also had told the RCMP that he was not involved in Francine’s death.
[47]
If the applicant
truly wished to rely on interview information in the control of the RCMP, he
should have raised the issue during the 2006 vacation hearing. He was
represented by counsel for much of the proceeding. He has waived any alleged
breach of natural justice. It is clear from the transcript of the February 22,
2006, vacation hearing that the applicant’s then counsel did not seek
disclosure of any RCMP information and in fact would be averse to the use of
the fruits of the RCMP investigation.
[48]
It is simply not open
to the applicant to have waited until after receiving a negative decision by
the Tribunal (and a negative decision from this Court on leave) to raise the
issue of disclosure in the context of an application to re-open. Where defence
counsel makes a tactical decision not to pursue disclosure of certain
documents, the Court will generally be unsympathetic to a plea that full
disclosure of those documents was not made: R. v. Bramwell (1996),
106 CCC (3d) 365 (B.C. C.A.). Counsel for the applicant submitted that there
was no evidence that the applicant’s then counsel made any tactical decision with
respect to disclosure, and that in any event, the duty to disclose all
exculpatory and relevant information is one that accrues to the Crown
independent of any request. This is no doubt true; nevertheless, the Supreme
Court of Canada has held that to do nothing in the face of knowledge that
relevant information could have been withheld may, in certain circumstances,
support an inference that counsel made a strategic decision not to pursue
disclosure: R. v. Dixon, [1998] 1 S.C.R. 244:
The fair and efficient functioning of the
criminal justice system requires that defence counsel exercise due diligence in
actively seeking and pursuing Crown disclosure. The very nature of the
disclosure process makes it prone to human error and vulnerable to attack. As officers
of the court, defence counsel have an obligation to pursue disclosure
diligently. When counsel becomes or ought to become aware, from other relevant
material produced by the Crown, of a failure to disclose further material,
counsel must not remain passive. Rather, they must diligently pursue
disclosure. This was aptly stated by the British Columbia Court of Appeal in R.
v. Bramwell (1996), 106 C.C.C.(3d) 365 (aff’d [1996] 3 S.C.R. 1126), at
p. 374:
…the disclosure process is one which
engages both the Crown and the defence. It is not one in which defence counsel
has no role to play except as passive receiver of information. The goal of the
disclosure process is to ensure that the accused is not denied a fair trial.
To that end, Crown counsel must disclose everything in its possession which is
not clearly irrelevant to the defence, but the defence must also play its part
by diligently pursuing disclosure from Crown counsel in a timely manner.
Further, where, as here, defence counsel makes a tactical decision not to
pursue disclosure of certain documents, the court will generally be
unsympathetic to a plea that full disclosure of those documents was not made.
[49]
The applicant
admitted that, at the time of the vacation proceedings against him, he knew
that the RCMP had interviewed at least three witnesses in Rwanda who apparently exculpated him of any wrongdoing. However,
he claimed that he did not know the RCMP had recorded or transcribed these
interviews, and that he was unaware of RCMP practices regarding the collection
and retention of evidence. He also submitted that for most of the vacation
proceedings, he was unrepresented by counsel, did not know that the Minister
had a duty to disclose exculpatory information, and that he had a right to request
further disclosure beyond what was already given to him by the Minister. It is
only after meeting with another Rwandan facing similar allegations that he
would have learned about this.
[50]
I do not find this
argument convincing, for several reasons. First of all, it is no excuse to
argue that he could not exercise his right to request further disclosure
because he did not know whether the RCMP recorded or transcribed these
interviews, or what the practices of the RCMP are regarding the collection and
retention of evidence. If he believed that some witnesses interviewed by the
RCMP had given exculpatory statements, he could at least have asked for these
statements and attempted to have them disclosed to him; all he was risking was
to be told there was no record of these interviews.
[51]
Moreover, the
applicant cannot succeed on the ground that he was unable to safeguard his
rights due to the lack of counsel. Litigants who choose to represent
themselves must accept the consequences of their choice: Wagg v. Canada, [2004] 1 F.C. 206, at paras. 23-25 (F.C.A.); Palonek
v. Minister of National Revenue, 2007 FCA 281, at para. 16; Minister
of Human Resources Development v. Hogervorst, 2007 FCA 41, at para.
35. Moreover, the applicant was represented by counsel during his application
for leave and for judicial review of the September 29, 2006 vacation and
exclusion decision, where again disclosure was not raised as an issue. It is
simply not the Board’s function at a hearing for an application to reopen to
consider issues that should have been raised in a judicial review application.
[52]
This case bears no
similarity with the case of the other Rwandan upon which he relies. It is
clear from the affidavit filed by Mr. Ndihokubwayo in support of the applicant
that his counsel (who, incidentally, is now representing the applicant) had
requested disclosure of the information contained in CBSA’s file as soon as he
received notice of the application to vacate refugee protection. He then made
a motion to be heard at a pre-hearing conference. Throughout the proceedings,
he insisted on having complete disclosure of witness statements. Also of
significance is the fact that in Mr. Ndihokubwayo’s case, the witness
statements containing exculpatory evidence at issue were within the possession
of the CBSA. The evidence originated from the RCMP and it was the CBSA’s
withholding of evidence they had knowledge of which was at issue. In light of
these facts, the Tribunal could reasonably conclude that the applicant’s case
was not comparable to Mr. Ndihokubwayo’s situation.
[53]
Finally, the
applicant faces another hurdle in his attempt to challenge the decision of the
Tribunal to dismiss his application to reopen his refugee status vacation
proceeding. As noted by the Tribunal, even if the applicant had not been
excluded for the murder of Francine, he would still have been excluded for the
more obvious crimes against humanity in which he was found to be complicit by
reason of his active involvement in the FAR. As the Tribunal stated:
Moreover, even if the exculpatory
statements of Bishop Sebununguri and Aimable Rutaremara had been introduced and
given full weight by the member, the applicant might not have been found
excluded on that basis, but the more obvious crimes against humanity in which
he was found to be complicit by reason of his active involvement in the FAR
would nevertheless have yielded the same result. After a review of the
member’s decision it is clear to the tribunal that the applicant was not
excluded only because of the murder of one Francine but because of his
complicity in crimes against humanity while serving in the FAR. The applicant
is not alleging that exculpatory evidence existed for that aspect of the case.
The tribunal finds that the undisclosed information was not determinative in
this case. In the circumstances, the applicant has suffered no prejudice.
Applicant’s Record, p. 10
[54]
This conclusion was
entirely reasonable. A simple perusal of the vacation proceeding transcript
reveals that the applicant was highly connected to the governing regime of Rwanda during the genocide of 1994. The applicant testified that
he was able to freely enter the presidential palace and wander around Kigali for two weeks while the genocide commenced. His
implausible claim that he was unaware of the extent of the massacres was
rejected by the Tribunal. Since the applicant has already unsuccessfully
sought judicial review of that decision, he should be precluded from attempting
to collaterally attack that decision.
[55]
Had the Tribunal
decided the applicant’s case exclusively on the ground of his involvement in
the murder of Francine, he might have been entitled to a new hearing (assuming,
for the sake of the argument, that there has been a breach of the applicant’s
right to a fair hearing and that he has not waived his right). But this was
not even the most serious ground to vacate his refugee status. It may well be,
as the Supreme Court of Canada said in Cardinal v. Director
of Kent Institution, [1985] 2 S.C.R. 643, at p. 661, that “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”. But when the impugned decision also rests on other grounds
which are untainted by the breach of natural justice principles, there would be
no point to send it back on judicial review: see Lord’s Evangelical Church
of Deliverance and Prayer of Toronto v. Canada, 2004 FCA 397.
[56]
The applicant
speculated that the exculpatory witness statements could have established that
he was among the minority who used their position in the FAR to save Tutsi
civilians rather than to kill them. But there is not a shred of evidence to
support that theory, which was roundly rejected by the Tribunal on the
applicant’s vacation hearing. And nowhere in his affidavit filed in support of
this application for judicial review does the applicant mention that Bishop
Sebununguru or his cook Aimabe Rutaremera would have exculpated him from his
complicity in crimes against humanity by reason of his involvement in the FAR.
The possibility that their statements might have been relevant to this more
serious ground for excluding him is therefore extremely remote, and I am
therefore unable to conclude that the Tribunal was unreasonable in finding that
the undisclosed information was not determinative at least in that respect.
[57]
For all the foregoing
reasons, I am therefore of the view that this application for judicial review
ought to be dismissed.
[58]
Counsel for the
applicant proposed four questions for certification purposes:
1. Within the context of the judicial
review hearing where the Minister intervenes to seek the exclusion of the
claimant, is the Minister under a duty to disclose all relevant evidence in his
possession, including exculpatory evidence, subject only to any claims to
privilege which would be assessed by the tribunal?
2. Is that duty contingent on any request
from the claimant or does the duty exist independently of any request from the
claimant?
3. Can the right to disclosure be
waived? If so, must the waiver be explicit, or can it be inferred from the
conduct of the claimant?
4. If there is a duty to disclose, does
that duty include a duty to disclose evidence in the possession of other
Government agencies when Minister’s counsel is aware that that government
agency has a file on the person which might contain relevant evidence?
[59]
The respondent
opposes the certification of the proposed questions.
[60]
It is well settled
that the test to certify a question is twofold: first, the question must be
serious and of general importance, and second, it must be determinative of an
appeal: Zazai v. Canada (Minister of Citizenship and
Immigration), 2004 FCA
89.
[61]
I agree with the
respondent that the questions proposed by the applicant have already been
canvassed by the case law and are quite fact specific. On the other hand,
counsel for the applicant strenuously stressed that Charkaoui no.2 has
changed the law with respect to disclosure. Since these issues are recurring
and deserve to be clarified by the Court of Appeal, I am prepared to accept the
certification of the four questions submitted by the applicant. As I made it
clear in my reasons, I do not think that they are determinative in the context
of this particular case; but in light of the serious consequences of these
proceedings for the applicant, it is well worth having the benefit of the Court
of Appeal’s assessment of these matters.
ORDER
THIS
COURT ORDERS that:
1. This application for judicial
review is dismissed.
2. The following four questions are
certified:
1. Within the context of the judicial
review hearing where the Minister intervenes to seek the exclusion of the
claimant, is the Minister under a duty to disclose all relevant evidence in his
possession, including exculpatory evidence, subject only to any claims to
privilege which would be assessed by the tribunal?
2. Is that duty contingent on any request
from the claimant or does the duty exist independently of any request from the
claimant?
3. Can the right to disclosure be
waived? If so, must the waiver be explicit, or can it be inferred from the
conduct of the claimant?
4.
If there is a duty to disclose, does that duty include a duty to disclose
evidence in the possession of other Government agencies when Minister’s counsel
is aware that that government agency has a file on the person which might
contain relevant evidence?
"Yves de
Montigny"
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