Date: 20070705
Docket: IMM-4145-06
Citation: 2007 FC 709
Vancouver,
British Columbia, July 5, 2007
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
CRISTHIAN
ANDRES RODRIGUEZ CHEVEZ
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an
application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the Act), for judicial review of
a decision by
a delegate of the Minister of Citizenship and Immigration Canada (the Delegate),
dated July 10, 2006, whereby an exclusion order was issued against the Applicant
(the Exclusion Order), for his failure to leave Canada at the end of his
authorized period of stay.
[2]
Cristhian
Andres Rodriguez Chevez (the Applicant) is a citizen of Costa Rica.
[3]
The
Applicant entered Canada as a visitor on January 25, 2004, and was
authorized to remain until April 26, 2004. Prior to the expiration of this
visa, his authorized stay was extended until May 28, 2004. He did not apply to
further extend his stay in Canada beyond that time.
[4]
On
July 8, 2006, the RCMP detained the Applicant for causing a disturbance.
Realizing he had no status in Canada, an Enforcement Officer of Canada Border
Services Agency (the CBSA Officer) was contacted.
[5]
While
still detained by the RCMP, the CBSA Officer interviewed the Applicant. He told
her that he had been convicted of rape in Costa Rica, and had
been incarcerated for a period of time before finally being exonerated. The CBSA Officer
arrested
the Applicant in anticipation of an immigration proceeding, believing that he
was otherwise unlikely to appear. He was transferred to the CBSA detention
facility on July 8, 2006. The CBSA Officer prepared a “Subsection 44(2) and 55
Highlights” document as well as a separate declaration outlining her exchanges
with the Applicant, both dated July 8, 2006.
[6]
On
July 10, 2006, after reviewing the CBSA Officer’s documents, the Delegate
interviewed the Applicant at the CBSA detention facility. The Applicant asked
to speak with a lawyer, but the Delegate responded that duty counsel was
unavailable, and asked the Applicant if he wished to contact another lawyer;
not knowing of any lawyers, and not having the means to afford one, the Applicant
did not contact counsel.
[7]
Whether
or not the Delegate issued the Exclusion Order on July 10, 2006, is disputed by
the parties.
[8]
The
following day, on July 11, 2006, the Delegate met with the Applicant again and
requested that he sign the written Exclusion Order that had been prepared. The Applicant
refused to sign the Exclusion Order without first speaking to a lawyer; not
being informed that duty counsel was available, he did not sign the order.
[9]
The
Applicant did not meet with a lawyer until shortly before his detention hearing
on July 11, 2006, when he met with duty counsel. At that time, the lawyer
informed the Applicant that because the Exclusion Order had already been
issued, he was precluded from claiming refugee status. The Applicant was
released from detention later that day.
[10]
The
Applicant challenges the validity of the issuance of the Exclusion Order due to
the circumstances of the matter, and claims that his right to counsel under section 10
of the Charter of Rights and Freedoms, Schedule B to the Canada Act 1982
(U.K.) 1982, c. 11 (the Charter) was infringed.
[11]
While
there is no right to counsel per se at an immigration assessment (Dehghani v. (Minister
of Employment and Immigration), [1993] 1 S.C.R. 1053), where a
person’s liberty
is significantly constrained, for instance over a period of days, he or she
has the right to retain and instruct counsel without delay, and to be informed
of that right ((Dragosin
v. Canada (Minister of Citizenship and Immigration) 2003 FCT
81, [2003]
F.C.J. No. 110 (QL); Huang v. Canada
(Minister of Citizenship and Immigration) 2002 FCT
149, [2002]
F.C.J. No. 182 (QL); Chen v. Canada (Minister of Citizenship and
Immigration), 2006 FC 910, [2006] F.C.J. No. 1163 (QL).
[12]
The
parties do not dispute that the Applicant was detained. Thus, it is clear that his liberty
was restrained, such that his section 10 Charter rights were engaged (R. v.
Therens, [1985] 1 S.C.R. 613 at p. 641) at the time he was
interviewed by the Delegate on July 10, 2006.
[13]
The
Applicant alleges that he asked to speak with a lawyer on July 10, 2006, before
the Exclusion Order was issued, but was informed by the Delegate that duty
counsel was not available that day. He was not given information with regard to
alternatives, such as legal aid, through which he might have been able to
access legal counsel, nor was he told they could wait for duty counsel to
become available before proceeding.
[14]
The
Applicant particularly relies on Dragosin, above, where it was held
that an applicant had the right to counsel the moment he was detained and that
immigration officers had an obligation to provide advice about, and to facilitate
access to, counsel. In that case, the exclusion order was set aside as the
applicant had requested to speak with counsel before the issuance of the order,
but officials had failed to facilitate access. The Applicant submits that the
facts of the present matter are indistinguishable from those in Dragosin:
he repeatedly asked to speak with counsel but was not able to speak with a
lawyer until after the Exclusion Order had been issued.
[15]
The
Respondent submits that the Applicant was read his rights when he was detained
by the CBSA Officer, and could have contacted counsel as he had access to a
telephone while in detention. He was also asked if he knew particular counsel
that he wished to contact for the interview. The Respondent relies on Rebmann
v. Canada (Solicitor General), 2005 FC 310, [2005]
F.C.J. No. 415
(QL),
asserting that it is factually similar to the present matter. Thus, as in Rebmann,
the Applicant’s right to counsel under the Charter was not breached.
[16]
Firstly,
the present matter is easily distinguished on its facts from Rebmann, above.
In that case, Mr. Rebmann actually met with duty counsel before the exclusion order
was issued. Such was not the case for Mr. Chevez in the circumstances of this
matter.
[17]
The
Applicant emphasizes that CIC’s Enforcement Manual (Chapter 7 at sections 16.2
and 16.3) requires that immigration officials inform detained persons of their
right to counsel. If he had been properly informed of his right to counsel,
and consulted a lawyer, he would have been informed of his rights to
formally claim refugee status before the issuance of the Exclusion Order. He also relies upon Cardinal
v. Director of Kent, [1985]
2 S.C.R. 643 that
there should be no causal speculation as to the results or merits of such a
claim if such a procedural fairness breach had not occurred; such a breach is a
legally sufficient error in itself.
[18]
The
sections of the CIC’s Enforcement Manual cited by the Applicant only require
that the detainee be read his or her Charter rights. According to uncontested
evidence of the CBSA Officer’s affidavit, she did in fact read the Applicant
his rights upon arrest. I find no reason to hold that his Charter rights were
infringed in this regard.
[19]
However,
more significantly, the Applicant alleges that he was not able to exercise his
right to counsel within a reasonable time; specifically, that he was
effectively denied access to counsel until after the issuance of the Exclusion
Order.
[20]
In
Dragosin, above, at paragraph 16, Justice Andrew MacKay concluded:
16 In my opinion, the applicant's right to counsel in this case
arose from the moment he was ordered to be detained at the regional
correctional centre. The immigration officers who arranged his detention had
the responsibility under s-s. 103.1(14) to provide advice about and to
facilitate access to counsel. It was an error in law not to do so, and, without
finally determining the matter it appears that failure to facilitate access to
counsel in the circumstances was not in accord with the right to counsel upon
detention which is assured to everyone in Canada, including the applicant, under s. 10 of
the Charter.
[21]
I
recognize that subsection 103.1(14) of the Immigration Act, R.S.C.
1985, c. I-2 (the former Act) specifically provided that a detainee be given a
reasonable opportunity to obtain counsel, while the Act in question does not
make such a specific reference. Nevertheless, such an obligation is inherent in
the right to retain and instruct counsel as guaranteed by subsection 10(b) of the
Charter. As such, I believe that Justice MacKay’s reasoning in Dragosin,
above, applies equally to the present matter.
[22]
I
am persuaded that, on a balance of probabilities, the evidence supports the Applicant’s
position that his subsection 10(b) Charter rights were infringed. While he was
properly informed of his right to counsel, none of the immigration officials
adequately facilitated the Applicant’s access to legal counsel before the Exclusion
Order was issued.
[23]
The
Legal Services Society of British Columbia funds private immigration lawyers to
act as duty counsel before the Immigration Division and part of their
responsibilities include providing advice to anyone in detention at the CBSA
detention area in question. Duty counsel is normally available for consultation
prior to the issuance of exclusion orders at the detention centre.
[24]
In
the present case, the evidence shows that the
Delegate summarily informed the Applicant that despite his request to speak
with a lawyer, due to unavailability of duty counsel, they would proceed
anyway.
[25]
In
cross-examination on his affidavit, the Delegate admitted that duty counsel was
present on-site at the detention center, though occupied in hearings. However,
he also acknowledged that duty counsel is normally available to those in the
detention several times during the day, even when tied up in hearings. He
similarly admitted that if an individual insists on waiting for duty
counsel before proceeding, he would normally wait a reasonable time. He also
conceded that where a detained individual has contacted an “outside” lawyer, he
is prepared to wait up to several hours for counsel to arrive before
proceeding.
[26]
Nevertheless,
in the circumstances of the present matter, the Delegate failed to wait for
duty counsel. He also did not provide the Applicant with any alternative
recourse, though admitting that a legal aid number would have been provided if
the Applicant had asked. Neither did the Delegate mention to the Applicant that
they could wait for duty counsel to become available if the Applicant insisted.
There
was no explanation given as to why the facilitation of access to counsel should
depend on repeated insistence, where an individual has already clearly
expressed a desire to speak with legal counsel.
[27]
There
is no evidence that the Delegate was required to expeditiously issue the Exclusion
Order before the Applicant could reasonably access legal advice, which was
available on-site and, according to the evidence, accessible to the Applicant
within a reasonable period of time. Indeed, the record is clear that the Applicant
was able to meet with duty counsel and was represented at his detention hearing
on July 11, 2006, demonstrating the availability of such legal advice.
[28]
In
the circumstances of the present matter, I adopt the conclusions of Justice
MacKay in Dragosin at paragraph 16 that the Applicant's right to counsel
arose from the moment he was ordered to be detained which, in effect, was on
July 8, 2006, when he was arrested by the CBSA Officer. This arrest triggered
the duty to provide advice about, and to facilitate access to, legal counsel (Dragosin,
above, at para. 16). Potential access to a telephone in the detention area, or
merely asking the Applicant if he knew a particular lawyer that he wished to
contact, was insufficient to discharge the obligation to facilitate access to
legal counsel. The failure to do so in the circumstances of this matter was not
consistent with the Applicant’s section 10(b) Charter rights, and constituted a
legal error (Dragosin, above, at paras. 16, 20).
[29]
I
agree with Justice MacKay in Dragosin, above, that the failure of the
officers to facilitate the Applicant’s access to counsel after he was detained must
result in the setting aside of the Exclusion Order. Accordingly, this matter is
to be remitted to another immigration official for re-determination.
[30]
Considering
that the matter is to be further considered, and in following the reasoning of
my colleague Justice MacKay in Dragosin, above, it would be
inappropriate and unnecessary in my opinion for the Court to resolve the issues
of exactly when the Exclusion Order was issued and whether the Applicant's
statements constituted a claim for refugee status.
[31]
For
these reasons, the application for judicial review is granted, the Exclusion
Order is set aside, and the matter referred for re-determination by a different
Delegate.
JUDGMENT
THIS COURT
ORDERS that the application for
judicial review is granted and the Exclusion Order is set aside. The matter is
referred for re-determination by a different Delegate.
"Danièle
Tremblay-Lamer"
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