Date: 20070119
Docket: IMM-2102-06
Citation: 2007 FC 49
Ottawa, Ontario, January 19, 2007
Present:
The Honourable Mr. Justice Shore
BETWEEN:
ANNE
ROSE-MARIE CONSEILLANT
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
INTRODUCTION
[1]
In some
cases, the absence of legal counsel or the refusal to grant an adjournment so
that a person can obtain counsel has been considered to be a breach of natural
justice. For example, in Austria v. Canada (Minister of Citizenship and
Immigration), 2006 FC 423, [2006] F.C.J. No. 597 (QL), Madam
Justice Danièle Tremblay-Lamer states the following:
[6] As it is clear from the decision, which provides that
state-funded legal aid is only constitutionally mandated in some cases, the
right to counsel is not absolute. In immigration matters specifically, this
Court has repeatedly held that the right to counsel is not absolute: Mervilus
v. Canada (Minister of Citizenship and Immigration), 2004 FC 1206
(CanLII), 2004 FC 1206, [2004] F.C.J. No. 1460
(F.C.)(QL) at paras. 17-25 where Justice Sean Harrington reviews the law
regarding the right to counsel. What is absolute, however, is the right to a
fair hearing. To ensure that a hearing proceeds fairly, the applicant must be
able to "participate meaningfully": Canada (Minister of
Citizenship and Immigration) v. Fast (T.D.), 2001 FCT 1269 (CanLII), 2001
FCT 1269, 2001 FCT 1269 (CanLII), [2002] 3 F.C. 373 (F.C.) at paras. 46-47.
NATURE OF THE JUDICIAL PROCEEDING
[2]
This is an
application for judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (Act), of a decision by the
Immigration and Refugee Board (Board) dated March 13, 2006, that the applicant
is not a Convention refugee or a person in need of protection (sections 96 and
97 of the Act).
FACTS
[3]
The
applicant, Anne Rose-Marie Conseillant, is a citizen of Haiti. She submits that
on September 15, 2002, thieves broke into her home to steal her belongings.
They also raped her daughter and tortured Ms. Conseillant as well as her
daughter.
[4]
This event
prompted Ms. Conseillant to leave her country. She arrived in Canada on
September 18, 2002, and claimed refugee status on September 27, 2005.
[5]
The
Minister alleged that Ms. Conseillant sent a “notification of counsel”
dated October 30, 2005, in which she indicated that her counsel was
Barthélémy Séjour. This information was also reiterated in her Personal
Information Form (PIF), signed on November 2, 2005. In a notice to appear dated
January 10, 2005, the applicant had been informed that her hearing would take
place on February 27, 2006. Ms. Conseillant had four months to find
counsel after she signed her PIF.
[6]
The Board
heard the refugee claim on February 27, 2006. At the beginning of the hearing,
Ms. Conseillant, accompanied by Barthélémy Séjour, sought an adjournment
in order to be represented by counsel rather than her immigration advisor. She
testified that she had not known that she could retain the services of counsel,
that she was illiterate and did not understand the procedural rules applicable
for appearing before the Board.
[7]
The
refugee protection officer (RPO) then recommended that the member grant the
adjournment given that Ms. Conseillant was not represented by counsel and
that she had not properly filled out the PIF. The Board nevertheless refused
the adjournment.
IMPUGNED DECISION
[8]
The Board
determined that the persecution feared by Ms. Conseillant is a risk faced
by other individuals in her country and, accordingly, it refused the applicant’s
refugee claim viva voce that same day.
ISSUE
[9]
Did the
Board breach the principles of natural justice and procedural fairness in
refusing Ms. Conseillant’s request for an adjournment?
STANDARD OF REVIEW
[10]
With
regard to the issues involving the principles of natural justice, the pragmatic
and functional analysis does not apply. However, the Court will intervene if
the Board’s determination was unreasonable, if there was a breach of the duty
to act fairly or if there was an error of law (Canadian Union of Public
Employees (C.U.P.E.) v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1
S.C.R. 539; Sketchley v. Canada (Attorney General), 2005
FCA 404, [2005] F.C.J. No. 2056 (QL), at paragraphs 52-55).
ANALYSIS
[11]
Ms. Conseillant
argued that the Board breached the principles of natural justice and procedural
fairness based on the fact that her right to counsel had been denied as a
result of the Board’s refusal to adjourn the hearing so that she could be
represented by counsel.
(1) Refusal of the request for adjournment
[12]
It is well
established in law that the decision whether or not to allow an adjournment is
a discretionary decision which must be made fairly. There is no presumption
that would automatically entitle the applicant to an adjournment. The Court will
not intervene with the refusal to grant an adjournment barring exceptional
circumstances such as those described in Siloch v. Canada
(Minister of Employment and Immigration) (F.C.A.), [1993]
F.C.J. No. 10 (QL). (See also: Wagg v. Canada, 2003
FCA 303, [2003] F.C.J. No. 1115 (QL), at paragraph 19).
[13]
As such,
even though it involved a show cause hearing, the principles raised by Madam
Justice Carolyn Layden-Stevenson in Ramadani v. Canada (Minister
of Citizenship and Immigration), 2005 FC 211, [2005] F.C.J. No. 251
(QL), apply to this case:
[10] However, the RPD did not consider any of the other factors
identified by the Federal Court of Appeal in Siloch v. Canada (Minister of
Employment and Immigration) (1993), 151 N.R. 76 (F.C.A.) - whether the
applicants had done everything in their power to be represented by counsel at
the hearing; the number of previous adjournments granted (none in this case);
the fault or blame to be placed on the applicants for not being ready; whether
any previous adjournments were granted on a peremptory basis. The decision not
to adjourn affected the applicants' ability to be represented by counsel at the
show cause hearing. The consequences of an abandonment decision are not
insignificant. It terminates a claim without consideration of its merits; a
conditional removal order becomes effective; and, a claimant is barred from
seeking refugee protection in the future.
[11] In my view, the RPD must, at a minimum, indicate that it
has had regard to the relevant factors enumerated in Siloch, supra,
before arriving at a negative decision. Its failure to do so constitutes a
reviewable error. I note that my colleagues Madam Justice Heneghan and Mr.
Justice O'Keefe arrived at a similar conclusion in Dias v. Canada (Minister
of Citizenship and Immigration) 2003 FC 84 and Sandy v. Canada (Minister
of Citizenship and Immigration) 2004 FC 1468 (CanLII),
2004 FC 1468.
[12] Regarding the allegation that the refusal amounts to a denial
of a right to counsel, I am persuaded that the circumstances in this matter
fall within the reasoning of the Federal Court of Appeal in DeSousa v.
Canada (Minister of Employment and Immigration) (1988), 93 N.R. 31 (F.C.A.)
and Mr. Justice Rothstein, then of the Trial Division as it was then
constituted, in Afrane v. Canada (Minister of Employment and
Immigration) (1993), 64 F.T.R. 1 (T.D.). Broadly speaking, in those cases, the
claimants were advised by counsel (in letters given to them shortly before the
hearing or on the day of the hearing) that counsel would be unavailable for the
hearing. The claimants presented these letters to the board at their respective
hearings in support of their requests for adjournment. In each case, the requests
were denied and the hearings proceeded without counsel. The decisions were
subsequently quashed by the reviewing Courts on the basis that the claimants
were denied their right to counsel and that the denial constituted a breach of
procedural fairness and the principles of natural justice.
[13] I would not go so far as to say that in all cases the mere
production of a letter from counsel requesting an adjournment gives rise to a
right to an adjournment. The RPD is the master of its own house and has the
right to control its proceedings. However, it must, in its deliberations, weigh
the factors militating in favour of and against the granting of the requested
adjournment. That did not happen here. It is evident from the transcript that
the applicants required representation, that they wished to be represented, and
that they wanted to obtain representation through legal aid or otherwise. While
the respondent's counsel valiantly tried to defend the decision by providing
various reasons as to why the RPD could have decided as it did, as I have
stated in other matters, the explanations for the decision must somehow be
found to exist within the reasons of the decision maker. The manner in which
the RPD approached this case amounted to a denial of the right to counsel.
[Emphasis added.]
[14]
On
reviewing the transcript of hearing and the Board’s decision, it appears that
the Board did not examine all of the factors set out in Siloch, supra.
While the Board did ask Ms. Conseillant and Mr. Séjour whether steps
had been taken to find counsel, the other factors were disregarded. Further,
the Board presumed that Mr. Séjour knew to explain to Ms. Conseillant what
steps to follow based on the information received from Immigration Canada, even
though he was not acting as counsel on the applicant’s behalf. (Transcript of
hearing, at page 5).
[15]
Moreover,
even though Ms. Conseillant had four months after signing her PIF to find
the help of counsel, the Board ought to have weighed the factors such as those
described above. On this point, in Modeste v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1027, [2006]
F.C.J. No. 1290 (QL), Mr. Justice Michael A. Kelen states the
following:
[20] All
of these factors may weigh in favour of granting an adjournment. The Board does
not appear to have taken these factors into account.
[21] In
my decision Antypov v. Canada (Minister of Citizenship and Immigration)
(2004), [2004] F.C.J. No. 1931, 135 A.C.W.S. (3d) 300 (F.C.), I considered
whether the denial of an adjournment by the Board so that the applicant could
obtain counsel constituted a breach of the rules of natural justice. In that
case, and in much of the jurisprudence where the denial of an adjournment for
this purpose was not considered a breach of the rules of natural justice, the
applicant had demonstrated a pattern of delaying the proceedings and had
already been granted adjournments on previous occasions. In the case at bar,
this is the first time the applicant has sought an adjournment. While the
applicant had ample time to make arrangements for counsel and was negligent in
doing so the Board is still obliged to consider and weigh these other factors.
[Emphasis added.]
(2) Right to counsel
[16]
Ms. Conseillant
properly argued that in refusing a request for adjournment, she was in indeed
deprived of the right to have the assistance of counsel.
[17]
There is
ample case law on the issue of the right that an individual has to the services
of counsel. Moreover, the right to be represented by counsel during
administrative proceedings is widely acknowledged. The right to counsel is
included among the principles of fundamental justice guaranteed under section 7
of the Canadian Charter of Rights and Freedoms, Part I, Schedule B
of the Canada Act 1982 (U.K.), 1982, c. 11 (Charter).
In fact, this right exists when the life, liberty or security of the person is
in play. The right to counsel is recognized once the decision-making process is
engaged. Paragraph 10(c) of the Charter also provides that everyone has
the right on arrest “to retain and instruct counsel without delay and to be
informed of that right”.
[18]
Furthermore,
subsection 30(1) of the former Act also confers to every person with respect to
whom an inquiry is to be held “[the] right to obtain the services of a
barrister or solicitor or other counsel and to be represented by any such
counsel at the inquiry and . . . a reasonable opportunity, if the person so
desires, to obtain such counsel at the person's own expense.” Similarly,
subsection 30(2) has a similar provision through which a person may be
represented by counsel who is willing and able to act in a reasonable time, at
the Minister’s expense.
[19]
Finally,
certain provisions contemplate the assistance of counsel for a minor child or
an individual under guardianship (subsections 69(1) and 69(4) of the former
Act; Stumf v. Canada (Minister of Citizenship and Immigration), 2002
FCA 148, [2002] F.C.J. No. 590 (QL), at paragraph 6; Espinoza
v. Canada (Minister of Citizenship and Immigration), [1999]
F.C.J. No. 385 (QL), at paragraph 25).
[20]
In Wagg,
supra, at paragraph 19, Mr. Justice J.D. Denis Pelletier restated the
principle that the right to assistance of counsel is not absolute, although it
is in both the
Court's and the litigant's best interests to have parties represented by
counsel. In fact,
as stated by Mr. Justice Marcel Joyal in Asomadu- Acheampong
v. Canada (Minister of Employment and Immigration), [1993]
F.C.J. No. 984 (QL), at paragraphs 7 and 8, the applicant must
also establish that prejudice resulted from absence of counsel. In some cases,
the absence of a counsel or the refusal to grant an adjournment or to allow a
person to obtain the services of counsel may be considered a breach of natural
justice. For example, in Austria, supra, Tremblay-Lamer J. states
the following:
[6] As it is clear from the decision, which provides that
state-funded legal aid is only constitutionally mandated in some cases, the
right to counsel is not absolute. In immigration matters specifically, this
Court has repeatedly held that the right to counsel is not absolute: Mervilus
v. Canada (Minister of Citizenship and Immigration), 2004 FC 1206 (CanLII),
2004 FC 1206, [2004] F.C.J. No. 1460 (F.C.)(QL) at paras. 17-25 where Justice
Sean Harrington reviews the law regarding the right to counsel. What is
absolute, however, is the right to a fair hearing. To ensure that a hearing
proceeds fairly, the applicant must be able to "participate
meaningfully": Canada (Minister of Citizenship and Immigration) v. Fast
(T.D.), 2001 FCT 1269 (CanLII), 2001 FCT 1269, 2001 FCT 1269 (CanLII),
[2002] 3 F.C. 373 (F.C.) at paras. 46-47.
[7] Therefore, in certain circumstances, the absence of counsel
may result in such unfairness during the hearing that Court intervention is
warranted. I am not satisfied, however, that the matter at hand represents such
a case. I believe that the applicant was indeed afforded a fair hearing.
[21]
In this
case, it appears from the evidence in the record that Ms. Conseillant
suffered genuine prejudice mainly as a result of her misapprehension of the
procedure to follow before the Board, since she is illiterate. Accordingly, it
resulted in a breach of natural justice for the applicant.
[22]
Ms. Conseillant
testified at the beginning of the hearing that she was not represented by
counsel, that she did not know she could retain the services of counsel and
that she did not understand what procedures to follow because she did not know
how to read or write:
BY THE MEMBER
The claimant is present
and is not represented by counsel or by an immigration counsellor.
BY THE MEMBER (addressing
the claimant)
Q. Is that
correct, Madam?
A. Yes.
- And
I also note that you do not have . . . you were never represented by counsel in
this matter.
A. No, no, I
haven’t any money.
Q. Has
anyone suggested that you go to legal aid, anything like that, Madam?
A. Not
(inaudible), but my friend there helped me, he was with me.
Q.
Okay.
So, someone explained to you that you could go to legal aid and you decided not
to go to legal aid. Is that correct?
A. No, I
didn’t decide, I don’t know, I don’t know anything.
Q. But
Madam, you said that you were told you could go to legal aid?
A. Yes,
but I did not understand anything at legal aid, I know nothing, I do not know
how to read or write. I know this friend that is there, he helped me and that’s
all, I did not understand anything.
- Okay. So
you decided . . . not to be represented by counsel.
A. Yes,
I could choose a lawyer if they gave me the opportunity to choose one, I would
take it.
- Okay,
Madam, your claim was scheduled a long time ago for hearing today.
A. Yes.
Q. You
chose instead to come with this Mr. Barthélémy who is here today?
A. Well,
I don’t know, he helps me but I do not know how to read or write and I do not
know how these lawyer things work.
. . .
. . . In this matter,
the RPO filed exhibits bearing numbers A-1 to A-2, I would like to add exhibit
A-3 . . .
. . .
Madam, I see
that you have not filed any exhibits?
A. Well, I
don’t know, I don’t know.
-
Well,
Madam, you are before a panel today . . .
A. Yes.
- . . . it
is a duly mandated panel, you . . .
A. Yes.
- .
. . you do not seem at all aware of what you are here for today.
A. Yes.
- Well now
. . .
A. I know
that I’m going before the judge.
- Well,
Madam, yes, going before the judge, you must be prepared, you have to know what
we are here to do.
. . .
BY THE MEMBER (addressing
the RCO)
Q. What do
you think, Mr. Toupin?
A. Well,
Mr. Chairperson, I . . . we know that the right to counsel is not an
absolute right, that’s one thing. However, natural justice provides that
individuals appearing before you have at least a chance to argue their . . .
their case. I admit that the claimant has been in Canada for a long time,
however, the claim was first scheduled, if I am not mistaken and correct me if
I’m wrong, on February 27, 2006.
- Well, this is
February 27, 2006.
A. Ah
yes, that’s true because I added March 13. So, this is the first hearing in the
case, excuse me.
- I
thought you had a problem.
A.
The
. . . the claimant stated that she is illiterate; she has not filed any
documentary evidence. Although we do have a passport that was seized by
Immigration which is in the file which attests to her point of . . . her
citizenship and to a certain extent the dates of her arrival in Canada, I’m
referring to the passport. However, in my record at page 8 requesting . . .
- Yes.
A. .
. . all of the information regarding the trips to Canada and the refugee claims
and all that, in mine nothing has been filled out. In my opinion, this is
information that is crucial most of the time. So, honestly, Mr. President,
I would suggest giving a chance to the claimant to give her a . . . the time to
verify, perhaps with the help of this gentleman or others, whether or not she
could qualify for legal aid in that case.
I don’t
believe legal aid does refugee claims anymore, I think.
[Emphasis added by the Court.]
[24]
In these
circumstances, all of these factors overwhelmingly establish that the applicant
suffered real prejudice because of her lack of understanding of the rules of
form and substance for presenting her claim. How can an illiterate individual
who informs the Board of her inadequacy, who asks to be represented by counsel
and whose request for adjournment is refused despite the fact that an RPO
recommended this measure, then benefit from a fair and equitable hearing?
[25]
While it
may be dangerous to grant adjournments in cases where the procedure is used for
abusive purposes to delay the administrative process, thereby leading to “legal
anarchy”, that is not the case here. This is the applicant’s first request for
an adjournment and, considering all of the foregoing, she deserved adequate
representation. (Edumadze v. Canada (Minister of Employment and Immigration),
[1993] F.C.J. No. 49 (QL); Rajkowski v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1291, [2006]
F.C.J. No. 1624 (QL)).
CONCLUSION
[26]
In short,
considering the foregoing, the Board breached the principles of natural justice
and procedural fairness when it did not adjourn the hearing on
Ms. Conseillant’s request, so that she could find counsel. Accordingly,
this Court’s intervention is warranted. For all of these reasons, the matter is
referred to the Board for predetermination before a differently constituted
panel.
JUDGMENT
THE COURT ORDERS that the application for judicial
review be allowed and the matter be referred for redetermination before a
differently constituted panel.
“Michel
M.J. Shore”
Certified true
translation
Kelley A. Harvey, BCL,
LLB
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