Date: 20080528
Docket: IMM-4581-07
Citation: 2008 FC 685
Toronto, Ontario, May 28,
2008
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
TANESHA
WISDOM-HALL
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Applicant is an adult female citizen of Jamaica. She
arrived in Canada in February,
2005 claiming to be a visitor and has remained in Canada, without
status, ever since. The Applicant made a claim for refugee status on the basis
that she feared violence from a former boyfriend and that the state of Jamaica would not be
able to provide adequate protection. That claim was rejected in a decision of
the Immigration Refugee Board of Canada dated September 28, 2007. The
applicant seeks judicial review of that decision. For the reasons that follow,
I will allow the application and set aside the decision of the Board.
[2]
The
circumstances of this case are more unusual than many of those in which women
fear violence from men they have known should they return to their country of
origin. In this case, the Applicant came to Canada without experiencing
violence in her native country, Jamaica. While in Canada, she met
Andre, also a Jamaican citizen living in Canada, through the
internet. They began living together and a violent relationship developed.
The record shows that Andre threatened to beat and to kill the Applicant. The
Applicant made a complaint to the police in Canada. Andre was
charged and convicted of violent crimes, having pled guilty and deported to Jamaica as a
consequence.
[3]
The
Applicant fears that if she were to be returned to Jamaica, Andre would
find her and make good on his threats to kill her. The parties acknowledge
that laws exist in Jamaica purporting to provide a measure of protection
for women who fear violence or are in violent relationships. The Applicant
submissions were referred to by the Board at page 2 of the Reasons:
“The core of her position is
found at page 4 where she states “It is not possible to provide effective state
protection when there is reluctance by the authorities to protect women””
[4]
The
Board’s response is peculiar. It says:
“The law as it exists does not
support the position that there is reluctance at the political level to protect
women”
[5]
The
Board goes on to say:
“Counsel points out at page 5
that laws on their own to (sic) not establish that state protection is
available. However, I find this too speculative as to how the authorities will
react should this client return to Jamaica today”
[6]
The
Board member continues in his reasons to focus on efforts of the state that he
says are “not always perfect” and concludes that he is “satisfied
that Jamaica has put in place a system of laws” that will provide women
adequate, if not perfect, protection.
[7]
In
coming to this conclusion, the Board member did not address the evidence before
him as to how matters actually were addressed in Jamaica. For
instance, the United States Department of State Country report in Jamaica for 2006 in
evidence says that “violence against women was widespread’ and there was
a “general reluctance by the police to become involved” and that there
were “reports of sexual harassment of women by police”.
[8]
The
Board member erred in concluding that test to be applied was one requiring only
a view of the laws in place and the expectations that they might be adequate
rather than addressing the realities as to what was happening here and now. In
order for adequate state protection to exist, a government must have both the
will and the capacity to implement effectively its legislation and programmes.
The correct approach to the issue was carefully set out by Shore J. in Streanga
v. Canada (MCI), 2007 FC 792 at paragraphs 14 to 19:
14 Public
pronouncements and public awareness, as well as services for women who have
already been victimized, do not amount to state protection. In light of
the evidence of the serious inadequacies of the Romanian police (particularly
concerning the amount of corruption in the police force) in combating and preventing
human trafficking, the PRRA Officer's reliance on the standard of "serious
measures" is wrong.
15
The Applicant submits that the PRRA Officer has
erred in viewing the legal test as one of "serious measures". The
Federal Court in Elcock v. Canada (MCI), [1999] F.C.J. No. 1438 (T.D.) (QL), at paragraph 15,
established, that for adequate state protection to exist, a government must
have both the will and the capacity to effectively implement its legislation
and programs:
Ability
of a state must be seen to comprehend not only the existence of an effective
legislative and procedural framework but the capacity and the will to
effectively implement that framework.
16 In
Mitchell v. Canada (MCI), [2006] F.C.J. No. 185, 2006 FC 133, the Federal Court determined that the
evaluation of state protection involves evaluating a state's "real
capacity" to protect its citizens. The Court noted that it is an error to
look to a state's good intentions and initiatives, if the real capacity of the
state to protect women from violence was still inadequate.
17 In
Garcia v. Canada (MCI), [2007] F.C.J. No. 118, 2007 FC 79, the Federal Court held that a state's
"serious efforts" to protect women from the harm of domestic violence
are not met by simply undertaking good faith initiatives. The Court stated at
paragraph 14:
It
cannot be said that a state is making "serious efforts" to protect
women, merely by making due diligence preparations to do so, such as conducting
commissions of inquiry into the reality of violence against women, the creation
of ombudspersons to take women's complaints of police failure, or gender
equality education seminars for police officers. Such efforts are not
evidence of effective state protection which must be understood as the
current ability of a state to protect women...
Garcia
elaborates on the meaning of "serious efforts" at paragraph 16:
...
the test for "serious efforts" will only be met where it is
established that the force's capability and expertise is developed well enough
to make a credible, earnest attempt to do so, from both the perspective of
the woman involved, and the concerned community. The same test applies to the
help that a woman might be expected to receive at the complaint counter at a
local police station. That is, are the police capable of accepting and acting
on her complaint in a credible and earnest manner? Indeed, in my opinion, this
is the test that should not only be applied to a state's "serious
efforts" to protect women, but should be accepted as the appropriate test
with respect to all protection contexts.
18 Justice
La Forest stated in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 at 724 that "it would seem to
defeat the purpose of international protection if a claimant would be required
to risk his or her life seeking ineffective protection of a state, merely to
demonstrate that ineffectiveness."
19 Evidence
of improvement and progress by the state is not evidence that the
current response amounts to adequate, effective protection. As held in the
Federal Court decision of Balogh v. Canada
(MCI), [2002] F.C.J. No. 1080 (QL) at paragraph 37, a state's
willingness to provide protection is not enough:
I
am of the view that the tribunal erred when it suggested a willingness to
address the situation...can be equated to adequate state protection.
[9]
In
the Board’s decision here, there is no examination of the evidence as to how,
as a practical matter today, the state of Jamaica can effectively protect women
such as the Applicant against persons who threaten to kill her such as Andre
who was deported in Jamaica because the Applicant had the courage to report him
to the police in Canada.
[10]
The
Application is allowed. There is no question for certification. No order as
to costs.
JUDGMENT
For the Reasons
provided:
THIS COURT ORDERS that:
1.
The
application is allowed;
2.
The
matter is returned for redetermination by a different Officer;
3.
There
is no question to be certified;
4.
No
Order as to costs.
"Roger
T. Hughes"
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