Date: 20110620
Docket: IMM-6120-10
Citation: 2011 FC 722
Toronto, Ontario, June 20, 2011
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
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MARIE MADELEINE CORNEAU
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The Refugee Protection Division of
the Immigration and Refugee Board determined that the applicant was neither a
Convention refugee nor a person in need of protection because adequate state
protection was available to her in Saint
Lucia.
[2]
Ms.
Corneau sought protection from abuse she
suffered at the hand of Denys Knox, her former common-law partner. She says
that during their 15-year relationship he was physically abusive and frequently
beat her. She approached the police for assistance five times but they did not
help her, saying that the domestic situation was a family matter between the
applicant and her common-law spouse. In 2004, after the last time she was
beaten and almost strangled to death, she left Saint Lucia to be with her
children living in Canada. She has learned that her common-law spouse was very
angry that she had left and that he has vowed to force her to live with him if
she ever returned.
[3]
The applicant delayed making a
claim for protection for more than four years. Although the Board dealt with
the delay issue and it was raised as an issue in this proceeding, it was not
the determinative issue that led to the rejection of her claim and,
accordingly, it is not required to deal with it further.
[4]
The Board stated that the
determinative issue in the claim was state protection.
[5]
On the facts of this case, the
Board’s finding that Saint Lucia was capable of providing the applicant with adequate
protection was unreasonable. The applicant approached the police five times.
No steps were taken to protect her from her abuser. She finally fled after
nearly being strangled to death. The Board made no negative credibility
finding with respect to the applicant’s version of events, and it must thus be
assumed her allegations were true.
[6]
The good intentions of a state to
protect its citizens do not constitute state protection where in practice
protection does not exist; this is reinforced, in the context of Caribbean
domestic abuse, by the cases cited by the applicant: Mitchell v Canada
(Minister of Citizenship and Immigration), 2006 FC 133; Clyne v Canada
(Minister of Citizenship and Immigration), 2004 FC 1670; Hooper v Canada
(Minister of Citizenship and Immigration), 2007 FC 1359; and Lewis v
Canada (Minister of Citizenship and Immigration), 2009 FC 282. Here, the
evidence of the applicant establishes that the state, in the form of the
police, was either unable or unwilling to provide her with protection.
[7]
The core of the Board’s decision
were its intertwined findings that (1) the government of Saint Lucia had
undertaken initiatives to combat domestic violence and (2) the applicant had
not availed herself of the services of various agencies which support battered
women or lodged a complaint with the police force’s internal complaints unit.
[8]
The first finding is unreasonable
because, as noted above, initiatives count for nothing if they do not translate
into adequate protection. I find particularly disturbing that the Board
accepted, without question, the unsupported July 2009 statement of the Director
of the Ministry of Home Affairs and Gender Relations that “police response to
domestic violence ‘improved significantly’ in the last eight to nine years
because of sensitization training provided by the Division of Gender Relations”
and that “the improvement has become ‘even more noticeable’ with the
establishment of the VPT.” The veracity of this claim for this applicant must
be examined in light of the fact that during that same period the applicant was
receiving no police support despite her reports of abuse. Further, the
document containing the Director’s statement also contains a contrary view from
the Executive Director of the Saint Lucia Crisis Centre who reports that he or
she “did not think that the police were effective in combating domestic
violence or that the formation of the VPT had improved the situation.” The
Board also fails to acknowledge the example given in that report of the death
of a victim of domestic abuse who had filed “several” reports with the police
against her abuser “which were never pursued.” Further, the Board does not
mention the statement of her Attorney in that report that “police do not always
take domestic violence cases seriously.” In short, the Board fails to cite any
of the evidence that does not support the picture painted by the government of Saint Lucia.
[9]
I agree with the respondent that
it is not necessary that the Board refer to every piece of evidence before it.
However, it is unreasonable for the Board to rely on one unsupported opinion
and to discount or fail to mention statements and evidence to the contrary
without offering any explanation as to why it preferred the positive outlook given
by a government official over the negative views and examples provided by
others.
[10]
The second ground relied upon by
the Board is unreasonable because a claimant is not required to seek protection
or assistance from non-governmental organizations or administrative agencies in
order to rebut the presumption of state protection. An attempt to obtain
protection from the police or the body responsible for the security of citizens
is sufficient. While shelters, counseling services, and hotlines may be
helpful to women escaping abuse, these institutions are not tasked with
ensuring physical safety – this is the job of the police. In most cases, if a
claimant establishes that the police force or analogous authority is unable to
protect him or her from threats identified in ss. 96 or 97 of the Immigration
and Refugee Protection Act, SC 2001, c 27, he or she will have rebutted the
presumption of state protection. In this respect, I concur with the comments
of Justice Tremblay-Lamer in Zepeda v Canada (Minister of
Citizenship and Immigration), 2008 FC
491, at para. 25:
I am of the
view that these alternate institutions do not constitute avenues of protection per
se; unless there is evidence to the contrary, the police force is the only
institution mandated with the protection of a nation's citizens and in
possession of enforcement powers commensurate with this mandate.
[11]
The Board’s suggestion that the
applicant could have consulted the police force’s internal complaints unit is
also unreasonable. There is no evidence the applicant knew about this unit of
the police or that she should have. I note that she has but five years of
primary school education. The onus on claimants to provide “clear and
convincing” evidence to rebut the presumption of state protection does not
extend so far as to require claimants to seek protection from the various
subdivisions of the police force. In any case, the Board itself suggests that
the internal complaints unit is intended to deal with police corruption, and
here the applicant alleged a failure to provide protection, not corruption.
Finally, it is not reasonable to expect the applicant, who is uneducated and
unsophisticated, to navigate the judicial system – which the documentary
evidence describes as problematic – to obtain a protection order – the value of
which the documentary evidence questions - after her repeated unsuccessful
attempts to obtain protection from the police and her near-death final assault.
[12]
The Board’s suggestion that the
“local failures” to provide effective policing did not amount to a lack of
state protection and the Board’s determination that the failure in the
applicant’s case did not suggest a broader pattern of state inability or
refusal to provide protection are also unreasonable. Saint Lucia is
a small island nation with a population of approximately 174,000 and a police
force (including coast guard) of 826 members. With such a small size it is
difficult to accept that a failure in policing could truly be “local,”
especially given that the applicant lived in the capital, Castries.
[13]
For these reasons the application
is allowed. Neither party proposed any question for certification.
JUDGMENT
THIS COURT’S JUDGMENT
is that:
the application is allowed, the application is
referred back to the Board for determination by a different Member, and no
question is certified.
"Russel W. Zinn"
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