Docket: IMM-7266-14
Citation:
2015 FC 856
Ottawa, Ontario, July 13, 2015
PRESENT: The
Honourable Mr. Justice Harrington
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BETWEEN:
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RICHARD
MARSHALL
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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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JUDGMENT AND REASONS
[1]
Mr. Marshall’s claim for refugee status in
Canada was not successful. Since then, he has had five, yes five, pre-removal
risk assessments. Five times it was decided that he would not be at serious
risk if returned to Trinidad and Tobago. Five times he obtained leave to have
those decisions judicially reviewed. The first four times this Court granted
his applications and sent the matter back for redetermination. This is the
decision on the fifth judicial review. For the fifth time, the decision of a senior
immigration officer is set aside and the matter referred back for
redetermination by another officer.
[2]
As Mr. Marshall’s situation was clearly set out
in the fourth judicial review, that of Mr. Justice Rennie, bearing
citation 2013 FC 726, it is not necessary to deal with the facts in any great
detail. Suffice it to say that the record indicates that Mr. Marshall emigrated
with his parents to the United States when he was a youngster. However, while
there he was convicted of “possession with the intent
to distribute heroin” and was jailed for six years. He was subsequently
deported back to Trinidad and Tobago in 2001.
[3]
Upon return there, Mr. Marshall alleges he
converted to Islam and somehow got involved with Islamic police officers. He
realized they were gangsters and decided to reconvert from Islam. Because of
the information he possesses, he claims his life has been threatened,
particularly by a rogue policeman, now ex-policeman and ex-prisoner, with the
street name “Robocop”.
[4]
He came to Canada in 2004 on a visitor’s visa
and later unsuccessfully sought refugee status.
[5]
At the heart of his assertion that he will be
killed if returned to Trinidad and Tobago are two letters; one purportedly from
Sergeant Steve Michael Moss of the Trinidad and Tobago Police Force and the
other from Superintendent Joseph Saunders of the Trinidad and Tobago Prison
Service in which they say without hesitation that he will be killed upon his
return.
[6]
By the time the fourth PRRA came around, it was
put to Mr. Marshall that the High Commission of Canada had information that
these two gentlemen do not exist and that, therefore, the letters are
fraudulent. There is now a further letter on file from Mr. Moss in which he
says that as of the result of his revelations, he had to flee Trinidad and
Tobago in fear for his life and is now hiding out in New York.
[7]
Mr. Justice Rennie held that the officer’s
analysis overall was unreasonable. Mr. Marshall had appeared before the officer
who had concerns regarding his credibility. As Mr. Justice Rennie noted at
paragraph 27:
…These concerns are reasonable in light of
statements from the authorities in Trinidad and Tobago which indicate that
certain letters may be inauthentic.
[8]
Having decided the case on the reasonableness
standard, as Mr. Justice Rennie noted himself, it was not necessary to address
procedural fairness. However, he did say that should the next officer rely on
documents from the police authorities in Trinidad and Tobago, procedural
fairness would “require disclosure of the outgoing
communication between the High Commission of Canada in Port-of-Spain and the
Trinidadian authorities.” However, he added at paragraph 38:
Should an officer accept the authenticity of
the documents, such disclosure would not be required. It may also be
reasonable for an officer to assess the applicant’s credibility without
reliance on this contested evidence.
[9]
He referred the matter back for reconsideration
before a different pre-removal risk assessment officer at an office other than
Toronto.
[10]
The fifth pre-removal risk assessment, the one
before me, was carried out by a senior immigration officer at Niagara Falls.
[11]
Although counsel had requested an oral hearing,
it was refused on the basis that there was no serious issue of credibility. The
officer took up Mr. Justice Rennie’s obiter and treated the letters from
Messrs. Moss and Saunders as authentic.
[12]
He then came to the view that the letters were
insufficient to rebut state protection, particularly since the source of
confidential information was not revealed. This was a fatal error.
[13]
There is a common law principle of police
informer privilege. In Bisaillon v Keable, [1983] 2 S.C.R. 60 reference is
made to Marks v Beyfus, (1890) 25 QBD 494 where Lord Esher wrote:
…this rule of public policy is not a matter
of discretion; it is a rule of law, and as such should be applied by the judge
at the trial, who should not treat it as a matter of discretion whether he
should tell the witness to answer or not.
[14]
This privilege is of such importance that “once found, courts are not entitled to balance the
benefit enuring from the privilege against countervailing considerations, as is
the case, for example, with Crown privilege or privileges based on Wigmore's four-part test”, see: R v Leipert, [1997] 1 SCR
281 at para 12.
[15]
The role of informer privilege is in part to
protect the identity of the informer(s); see: Bisaillon, above; Leipert,
above; R v Hunter, 34 CCC (3d) 14, [1987] OJ
No 328 (QL); R v Atout, 2013 ONSC 1312 at para 19; R v Barros,
2011 SCC 51, [2011] 3 S.C.R. 368 at para 30.
[16]
The next time around, there is no denying that
credibility is at the crux of the matter. If there is no Mr. Moss and no Mr.
Saunders, then Mr. Marshall is an unmitigated liar. On the other hand, if they
do exist and did write the letters in question, they cannot be dismissed for
failing to give full particulars of their confidential informant information.
Mr. Marshall’s credibility, and state protection, would have to be analysed
with that in mind.
[17]
It must be remembered that in the leading case
dealing with state protection, Canada (Attorney General) v Ward, [1993]
2 SCR 689, there was clear evidence from Irish officials that the state was
unable to protect Mr. Ward. Should the letters from Messrs. Moss and Saunders
be found to be authentic, then it is inappropriate to reach a conclusion on
state protection based on general country conditions. As in Ward, the
authorities in Trinidad and Tobago will have to be specifically engaged.
[18]
Full disclosure is also to be given of the
correspondence between the High Commission of Canada and the authorities in
Trinidad and Tobago so that Mr. Marshall, as required by natural justice, will
have an opportunity to respond thereto. An assessment of his risk will only be
determined following an oral interview.
[19]
Mr. Marshall sought costs. Costs were not
granted on the first four judicial reviews. As the officer in this review followed
a suggestion of Mr. Justice Rennie, but executed it badly, I do not see any
reason why the general principle in immigration matters that matters are
decided without costs should be disturbed.
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