Docket: IMM-4493-10
Citation: 2011 FC 1321
Ottawa,
Ontario, November 17,
2011
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
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VERNETTE EMILE
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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]
Ms.
Vernette Emile applies for judicial review of the July 19, 2010 decision of the
Immigration and Refugee Board’s Refugee Protection Division (RPD). The RPD
refused the Applicant’s claim for refugee protection made pursuant to section
96 and subsection 97(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 (IRPA).
[2]
The
Applicant is from St. Lucia. At the age of 15, she entered a relationship
that soon became abusive. After one incident, the Applicant reported her abuse
to the police. Her boyfriend was arrested, convicted and fined $250.00. Shortly
thereafter, her boyfriend kidnapped her and threatened her until the Applicant
escaped. Her boyfriend continued to stalk and threaten her until the Applicant
fled to Canada.
[3]
The
RPD found that the Applicant had failed to rebut the presumption of adequate
state protection in St. Lucia. As a result, the RPD rejected her claim for
protection.
[4]
I
find that the RPD’s reasons were reasonable and dismiss the Applicant’s
application for judicial review.
Background
[5]
The
Applicant is from St. Lucia. When she was 15 years old, the Applicant met a
young man by the name of Dale; she moved in with him soon after. Within a few
months, he became physically abusive towards her.
[6]
On
one occasion, Dale stabbed the Applicant with scissors. She left the house and
returned to her mother’s home. The next day, Dale called her and said he was
sorry for what had happened and promised he would mend his ways. The Applicant
returned to live with him.
[7]
Unfortunately,
the abuse continued. On one occasion, the Applicant cut her foot when she
stepped on some glass that Dale had intentionally placed on a mattress on the
floor. Dale had removed the lights which forced the Applicant to walk in the
dark. She was treated at the hospital for her injuries. That same night, the
Applicant went to the police with her mother and made a complaint against Dale.
He was arrested, convicted and sentenced to pay a $250.00 fine.
[8]
Dale
called the Applicant again. He apologized and asked her to return to him. When
he came to pick her up in his car, he forcibly removed her to a friend’s place
in the woods and threatened to kill her if she tried to leave. The Applicant
was able to escape by calling her mother who came with the Applicant’s brother
and other persons to the house and took her away.
[9]
Dale
began to stalk the Applicant and sent messages that she was going to pay
because she made him go to jail. The Applicant was afraid that Dale would
eventually hurt her. Her mother called a friend in Toronto who sent a
plane ticket to the Applicant.
[10]
The
Applicant left St. Lucia by plane on December 18, 2002 and arrived in Toronto the same
day. She lived in Toronto until she moved to Ottawa in January,
2004, to live with an aunt. The Applicant alleged she did not make a refugee
claim because her aunt did not suggest that she do so.
[11]
In
2007, the Applicant started a relationship with Jason Lesage who was a Canadian
citizen. They began to live together in July, 2007. They wanted to marry and
have Jason sponsor her. Unfortunately, Jason was murdered on March 7, 2009.
[12]
After
Jason’s murder, the Applicant was sad and concerned about her status in Canada. She had
heard from her friends and family in St. Lucia over the years that
Dale continued to tell people that he would kill her if she returned to St. Lucia. After
receiving advice from Jason’s sister, the Applicant made a refugee claim on May
1, 2009.
Decision Under Review
[13]
The
RPD found the Applicant to be a credible witness. The determinative issue for
the RDP was whether adequate state protection was available in St. Lucia.
[14]
The
RPD found that the St. Lucia police had provided protection when she asked
for it by arresting and charging Dale on November 25, 2002, for which he was
fined $250.00.
[15]
The
RPD found that St. Lucia is a multiparty, parliamentary democracy, with
a government generally respecting the human rights of its citizens, although
there were some problems in some areas including violence against women and child
abuse.
[16]
In
its decision, the RPD noted counsel’s reference to Mauricette v Minister of
Public Safety and Emergency Preparedness, 2008 FC 420, 72 Imm LR (3d) 139,
where Justice Shore remarked that St. Lucia’s infrastructure does not
adequately protect against stalking behaviour. However, the RPD also noted that
the report on domestic violence against women published by the United Nations
High Commissioner for Refugees (UNHCR) mentioned St. Lucia’s amended Criminal
Code contained provisions to address violence against women, including
provisions against stalking.
[17]
The
RPD also observed that the Domestic Violence Act in St. Lucia allowed
victims to seek protection, occupation and/or tenancy orders that would be
issued at family court. The RPD went on to note that the Royal St. Lucia Police
Force has launched a Vulnerable Persons’ Team (VPT) which in part provides
advice for domestic abuse cases, and has resulted in the increase in the number
of sexual crimes reported to the police. The RPD did note that the Executive
Director of the St. Lucia Crisis Centre did not think that the police were
effective in combating domestic violence or that the formation of the VPT had
improved the situation. However, the RPD stated this information could not be
corroborated among the sources consulted by the Research Directorate. The
RPD also noted the existence of support services including counselling and a
shelter with space for 25 people that would be able to stay as long as they
needed.
[18]
The
RPD noted that when the Applicant was directed to the contents of the reports
and the services now available, the Applicant acknowledged she had not been
aware that such services were in existence in St. Lucia.
[19]
The
RPD found that St. Lucia is making serious efforts to protect its citizens in
domestic violence cases, and that the Applicant had failed to present clear and
convincing proof of St. Lucia’s inability to protect her. The RPD stated that
it had taken into consideration the Guidelines on Women Refugee Claimants
Facing Gender-Related Persecution. The RPD concluded that the Applicant was not
a Convention refugee under section 96 of IRPA, nor a person in need of
protection under section 97.
Relevant
Legislation
[20]
The
Immigration and Refugee Protection Act, SC 2001, c 27 provides:
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96.
A Convention refugee is a person who, by reason of a well-founded fear of persecution
for reasons of race, religion, nationality, membership in a particular social
group or political opinion,
(a)
is outside each of their countries of nationality and is unable or, by reason
of that
fear,
unwilling to avail themself of the protection of each of those countries; or
(b)
not having a country of nationality, is outside the country of their former
habitual residence and is unable or, by reason of that fear, unwilling to
return to that country.
…
97.
(1) A person in need of protection is a person in Canada whose removal to their country or
countries of nationality or, if they do not have a country of nationality,
their country of former habitual residence, would subject them Personally
(a)
to a danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b)
to a risk to their life or to a risk of cruel and unusual treatment or
punishment if
(i)
the person is unable or, because of that risk, unwilling to avail themself of
the protection of that country,
(ii)
the risk would be faced by the person in every part of that country and is
not faced generally by other individuals in or from that country,
(iii)
the risk is not inherent or incidental to lawful sanctions, unless imposed in
disregard
of
accepted international standards, and
(iv)
the risk is not caused by the inability of that country to provide adequate
health or medical care.
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96.
A qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a)
soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du
fait de cette
crainte,
ne veut se réclamer de la protection de chacun de ces pays;
b)
soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel
elle avait sa
résidence
habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
…
97.
(1) A qualité de personne à protéger la personne qui se trouve au Canada et
serait personnellement, par son renvoi vers tout pays dont elle a la
nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa
résidence habituelle, exposée :
a)
soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la
torture au sens de l’article premier de la Convention contre la torture;
b)
soit à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans
le
cas suivant :
(i)
elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii)
elle y est exposée en tout lieu de ce pays alors que d’autres personnes
originaires
de
ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii)
la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv)
la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
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Issues
[21]
In
my view, the issues arising in this application are:
1.
Did the RPD properly analyze the evidence before it?
2.
Was the RPD’s finding of adequate state protection reasonable?
Standard of Review
[22]
The
Supreme Court of Canada has held that there are only two standards of review:
correctness for questions of law, and reasonableness for questions involving
fact or mixed fact and law: Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190 at paras 50 and 53.
[23]
Determinations
of state protection are matters of mixed fact and law and are therefore to be
reviewed on a reasonableness standard: Flores v Canada (Minister of
Citizenship & Immigration), 2010 FC 503, [2010] FCJ no 607 at para
21.
Analysis
1. Did the RPD properly
analyze the evidence before it?
[24]
The
Applicant submits the RPD failed to analyze the contradictory views contained
in the Immigration and Refugee Response to Information Request (IRB document)
on the adequacy of state protection, and failed to explain why it favoured one
perspective over the other. The Applicant submits the RPD must analyze
contradictory evidence and provide reasons why it does not consider it relevant
or trustworthy or why it chose to disregard it. As an example, the Applicant
argues the RPD ignored contradictory evidence in the IRB document that there
are often delays in protection orders because of understaffing in the police
department.
[25]
The
Respondent takes the position that the RPD thoroughly reviewed the documentary
evidence and its conclusions were based on the entirety of the evidence
presented. The Respondent notes the RPD specifically addressed the existing
contradictory evidence regarding the existence of adequate state protection. The
Respondent submits it was reasonably open to the RPD on the evidence before it
to find that St.
Lucia
is making serious efforts to protect its citizens in domestic violence cases.
[26]
The
case law demonstrates that the RPD is presumed to have considered all of the
evidence before it: see Cepeda-Gutierrez v Canada (Minister of
Citizenship & Immigration) (1998), 157 FTR 35 (FCTD). The RPD need
not summarize all of the evidence in its decision so long as it takes into
account evidence which may contradict its conclusion and its decision is within
the range of reasonable outcomes: Peter v Canada (Minister of Citizenship
& Immigration), 2011 FC 778 at para 45.
[27]
In
its decision, the RPD found that the documentary evidence supported a finding
that adequate state protection was available to the Applicant. The RPD referred
to the UNHCR report which stated the amended Criminal Code included a number of
provisions that address violence against women, including the introduction of
“marital rape” as an offence, as well as provisions that address stalking and
workplace sexual harassment. The RPD also discussed the formation of the VPT
and statements made by 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 been “even more
noticeable” with the establishment of the VPT.
[28]
The
Applicant submits the RPD failed to address evidence in the IRB document that
delays in issuing orders and providing protection existed because of
understaffing. The Applicant also submits that while the RPD referred to
evidence that there is shelter space in St. Lucia to
accommodate 25 people, the RPD did not refer to other evidence in the IRB
document that there are only 5 spaces for women and children.
[29]
Upon
review of the decision, the RPD did not specifically address the contrary
evidence mentioned in the Applicant’s submissions. However, this is not a case
where the RPD ignored all the contrary evidence. For example, the RPD stated
that the UNHCR report indicated that domestic violence is still a serious
problem in St.
Lucia.
The RPD also stated the Executive Director of the Saint Lucia Crisis Centre did
not think that the police were effective in combating domestic violence or that
the formation of the VPT had improved the situation because several clients of
the Crisis Center had reported not receiving an appropriate response from the
police. However, the RPD noted that this information could not be corroborated
among the sources consulted by the Research Directorate.
[30]
While
the RPD was not required to summarize all the evidence before it, it was required
to consider and take into account evidence contrary to its ultimate conclusion.
My reading of the RPD’s decision confirms that it did. The RPD expressly noted
examples of the contradictory evidence and ultimately determined that the
documentary evidence supported a finding that adequate state protection exists
in St.
Lucia.
This determination fell within the range of reasonable outcomes available to it
and ought not to be interfered with.
2. Was the RPD’s finding
of adequate state protection reasonable?
[31]
The
Applicant takes particular issue with the RPD’s finding that the St. Lucia police properly
deal with perpetrators of abuse if and when a request for assistance is made. The
Applicant submits that despite responding, the state authorities clearly had
not adequately protected the Applicant because after being given the fine, Dale
was angered and subsequently kidnapped and forcibly confined the Applicant,
threatening to kill her. The Applicant argues it is not enough for the RPD to
refer to some limited action by the police that spurred Dale on to even more
abusive behaviour as constituting effective protection.
[32]
The
Applicant also disputes the RPD’s finding that St. Lucia’s
legislature provides adequate state protection for victims of domestic abuse.
The Applicant specifically refers to the RPD’s finding that St. Lucia’s amended
Criminal Code contains provisions that address stalking. The Applicant submits
that these amendments took place in 2005 and were not in existence when the
Applicant was in St. Lucia. The Applicant argues that the RPD erred by
relying on and placing a great deal of emphasis on this amendment. Finally, the
Applicant cites this Court’s decision in Franklyn v Canada, 2005 FC
1249 [Franklyn] to support her submission that the mere existence of a
legislative framework is not enough to demonstrate that the state has the
ability to protect women in the situation of the Applicant.
[33]
In
response, the Respondent submits that there is a presumption that state
protection exists and that the burden is on the Applicant to adduce clear and
convincing evidence to rebut this presumption. The Respondent also submits that
the standard of protection that a country needs to offer its citizens is one of
adequate, though not necessarily perfect protection.
[34]
The
Respondent submits that the fact the abuser escalated his crimes after an
initial conviction does not necessarily render a country unable to provide
protection to the victim. The Respondent further submits the Applicant did not
make a second complaint against Dale after the kidnapping incident, leaving no
evidentiary basis upon which to allege that the Applicant would not be afforded
adequate protection.
[35]
I
agree with the Respondent that a presumption of state protection exists and
that the burden is on the Applicant to adduce clear and convincing evidence to
rebut this presumption. The jurisprudence of this Court is clear that absent a
situation of complete breakdown of the state apparatus, there is a presumption
that a state is able to protect its citizens: Pacasum v Canada (Minister of
Citizenship and Immigration), 2008 FC 822 at para 19. To rebut this
presumption, an applicant must adduce clear and convincing evidence that state
protection is inadequate or non-existent: Carillo v Canada (Minister of
Citizenship and Immigration), 2008 FCA 94, [2008] 4 FCR 636 at para 38.
[36]
It
is also evident from a review of the jurisprudence on state protection that a
state’s ability to protect its citizens need not be perfect: Canada (Minister of
Employment and Immigration) v Villafranca (1992), 99 DLR (4th)
334, 18 Imm LR (2d) 130 at para 7.
[37]
In
this case, the RPD found that St. Lucia is a multiparty,
parliamentary democracy whose government generally respected the human rights
of its citizens. The RPD was correct in finding that the presumption of state
protection exists in this case and that the onus was on the Applicant to rebut
this presumption.
[38]
The
RPD found that the Applicant had failed to adduce clear and convincing evidence
that adequate state protection was not available. In addition to the
documentary evidence discussed above, the RPD took into consideration the
particular factual situation of the Applicant herself. The RPD noted that on
the one occasion when the Applicant and her mother approached the police in
October, 2002, Dale was arrested, charged, convicted and was assessed a fine.
The RPD found that this was evidence that state protection was available to the
Applicant. I agree.
[39]
The
Applicant submits the $250.00 fine did not deter her abusive spouse. However,
it is to be remembered that any criminal sentence must reflect the offence
committed. It is unfortunate that Dale’s arrest, conviction and fine did not
spare the Applicant from further abuse. However, what is required is adequate
protection, not perfect protection. In order to claim that state protection was
inadequate or unavailable, it was incumbent on the Applicant to report the
subsequent abuse to the police.
[40]
In
a democratic state, such as St. Lucia, an applicant is required to show that she
exhausted all courses of action open to her without success before seeking
protection: Kadenko v Canada (Solicitor General) (1996), 143 DLR (4th)
532, 68 ACWS (3d) 334 at para 5. In this case, the Applicant received police
assistance on the one occasion she sought it. There is no evidence to suggest that
further assistance would not be forthcoming were she to request it.
[41]
I
also disagree with the Applicant’s submission that the RPD erred by relying on
the anti-stalking provisions found in the amended Criminal Code. The Applicant
argues that the amendments were not in existence when the Applicant was in St. Lucia and
therefore should not have been considered by the RPD. However, it must be
remembered that refugee protection is forward-looking: Baptiste v Canada (Minister of
Citizenship & Immigration), 2011 FC 630 at para 29. The RPD was
correct in addressing the issue of adequate state protection as it currently
exists and its finding that the amended Criminal Code suggested the existence
of adequate state protection is reasonable.
[42]
Finally,
the Applicant argues that the mere existence of a legislative framework is not
enough to demonstrate adequate state protection. The Applicant relies on Franklyn
to support her argument. However, after reviewing Franklyn, I
conclude that this case can be distinguished based on the facts. In Franklyn,
J. de Montigny stated:
[21] In the present case, the Board
came to the conclusion that the Applicant had not met her burden of
establishing that the State was not capable to protect her. Relying on Canada
(M.C.I.) v. Kadenko et al. and on Canada (M.E.I.) v. Villafranca,
the Board placed much emphasis on the fact that St-Vincent and the Grenadines
was a democratic state with the full panoply of constitutionally guaranteed
rights, and that serious efforts were being made to curb domestic violence,
both legislatively and on the ground. But with all due respect, this is not
enough to demonstrate that the State has the ability to protect women in the
situation of the Applicant.
[Citations omitted]
The decision then went on to note that the
applicant had been unsuccessful on several occasions in obtaining police
assistance. On one occasion when the applicant tried to report an assault, an
officer laughed at her and said that it was a lover’s quarrel, and that she
deserved it if she had lesbian tendencies.
[43]
Unlike
in Franklyn, the Applicant in this case was successful in obtaining
police assistance when she requested it. I find the Applicant’s success in
obtaining police assistance aligns with the RPD’s finding that St. Lucia’s
legislative framework evidences the existence of adequate state protection.
Conclusion
[44]
I
find that the RPD’s decision regarding the existence of adequate state
protection in St.
Lucia
to be reasonable based on the evidence before it. The RPD made no reviewable
errors in its analysis and this Court ought not to interfere with the RPD’s
decision. The Application for judicial review is dismissed.
[45]
No
question of general importance is certified.
JUDGMENT
THIS COURT’S JUDGMENT
is that
1. The
Application for judicial review is dismissed.
2. No question
of general importance is certified.
“Leonard
S. Mandamin”
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