Docket: IMM-3200-15
Citation:
2016 FC 70
Toronto, Ontario, January 21, 2016
PRESENT: The
Honourable Mr. Justice Fothergill
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BETWEEN:
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SHIYUAN SHEN
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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
I.
Introduction
[1]
Shiyuan Shen has brought an application for
judicial review pursuant to s 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 [IRPA] of a decision by the Refugee
Protection Division [RPD] of the Immigration and Refugee Board. The RPD
dismissed two preliminary motions brought by Mr. Shen regarding the
re-determination of his claim for refugee protection.
[2]
The Minister of Public Safety and Emergency
Preparedness intervened in Mr. Shen’s hearing before the RPD to argue that he
should be excluded from refugee protection pursuant to Article 1F(b) of the
United Nations Convention Relating to the Status of Refugees, Can TS 1969 No 6
[Convention] and s 98 of the IRPA. Together, these provisions provide that
refugee protection will not be conferred if there are “serious reasons for
considering” that the person committed a serious, non-political crime outside
of Canada prior to the person’s admission to Canada. The Minister submitted
evidence obtained from the Chinese Public Security Bureau [PSB] to support the
claim that there were serious reasons to believe that Mr. Shen had committed
fraud in China.
[3]
The first motion brought by Mr. Shen sought the
exclusion of all evidence emanating from Chinese authorities on the ground that
it was obtained by torture. The second motion sought to prevent the Minister
from intervening in Mr. Shen’s claim for refugee status, on the ground that the
Minister had breached the duty of candour and his conduct amounted to an abuse
of process.
[4]
For the reasons that follow, I have concluded
that it is premature for this Court to review the RPD’s refusal to exclude
certain evidence on the ground that it may have been obtained by torture.
However, given the circumstances of this case, questions concerning the duty of
candour and abuse of process are not premature. The RPD’s assessment of whether
the Crown breached the duty of candour and whether this amounted to an abuse of
process was internally inconsistent and legally incorrect. These questions are
therefore remitted to the same RPD member for re-determination. The application
for judicial review is allowed in part.
II.
Background
[5]
In these reasons, I refer to the Minister of
Public Safety and Emergency Preparedness and the Minister of Citizenship and
Immigration collectively as “the Crown”.
[6]
Mr. Shen is 43 years old and a citizen of the
People’s Republic of China. He is a businessman who was involved in the steel
trade in China. He was the directing mind of two companies in Shanghai, from
which he withdrew in July 2001. Mr. Shen left China on February 3, 2002. He
arrived in New York City, United States of America, on February 22, 2002.
[7]
On April 3, 2002, the PSB in Shanghai issued an
arrest warrant for Mr. Shen, alleging that he had committed fraud in China.
[8]
Mr. Shen entered Canada on May 26, 2007 and took
up residence in Vancouver, British Columbia. He married a Canadian citizen and
started a successful kitchen cabinet business. He applied for permanent
residence as a member of the Spouse or Common-Law Partner in Canada Class. Following
his application, the Canada Border Services Agency [CBSA] arrested him for
suspected involvement in illegal activities in China.
[9]
On March 9, 2011, Mr. Shen applied for refugee
protection in Canada. He maintains that he has never participated in any
illegal activity in China, and that the Chinese authorities have targeted him
for political reasons.
[10]
Before the RPD, Mr. Shen argued that the PSB
documents relied upon by the Crown were incomplete, and that the Crown was
required to disclose all documents obtained from China that concerned his case.
Counsel representing the Crown argued that full disclosure was not required,
and made the following statement:
In the present
case, a CBSA officer reviewed all of the documents from the PSB with an
interpreter. The officer then decided which documents were relevant to the
Crown’s case and arranged to have them translated from Chinese to English. The
Crown is not aware of any exculpatory evidence in the information from the PSB.
The claimant has not referred to any evidence that indicates the existence of
exculpatory evidence in the possession of the PSB or CBSA. The claimant’s
submissions on the point are based upon speculation and suspicion and not on
any evidence.
[11]
In a decision dated May 6, 2013, the RPD found
that Mr. Shen was excluded from refugee protection in Canada because he is a
person referred to in Article 1F(b) of the Convention. The RPD concluded that
the evidence “painted a clear picture of a fraud”
and determined that Mr. Shen was “the person who masterminded
the criminal conspiracy and was the person who gained from the illegal
activity”.
[12]
Mr. Shen applied for leave and for judicial
review of the RPD’s decision. As a result of this Court’s decision in B135 v
Canada (Minister of Citizenship and Immigration), 2013 FC 871 [B135],
the Crown conceded that there had been insufficient disclosure of information
to Mr. Shen and the application for judicial review was allowed on consent. The
Crown nevertheless refused to provide Mr. Shen with all documents obtained from
the PSB relating to Mr. Shen’s case. Mr. Shen sought relief from this Court,
and on September 15, 2014, Justice Beaudry ordered the Crown to provide Mr.
Shen with full disclosure of all documents received from the PSB regarding the
charges against him.
[13]
After reviewing the newly-disclosed documents
with his lawyers, Mr. Shen concluded that many were relevant to the charges
against him and some were exculpatory in nature. In particular, Mr. Shen
discovered records pertaining to a PSB interview with his sister, in which she
admitted to the PSB that she had delivered money to individuals in China on
behalf of her brother’s companies, and that she had withheld accounting records
from the PSB. During the interview dated February 26, 2002, she stated the
following: “… at the beginning, I did not want to tell.
Later, after repeated education from comrades at your PSB(s), I felt it would
not be all right not to tell. It would be wrong, and it would constitute a
crime. I was also shown (a) book(s) of law for me to read. The more I thought
of it, the scarier it was. I simply said it to get a lenient treatment. So I
voluntarily submitted the accounting materials”. Mr. Shen maintains that
this statement clearly demonstrates that his sister’s evidence was obtained by
torture.
[14]
Mr. Shen brought two preliminary motions at a
pre-hearing conference before the RPD. The first motion sought the exclusion of
all evidence emanating from the PSB on the basis that it was obtained by
torture. The second motion sought to prevent the Crown from intervening in the
re-determination of his claim, on the ground that the Crown had breached the
duty of candour during the first RPD hearing and that its conduct amounted to
an abuse of process.
[15]
Counsel representing the Crown acknowledged that
not all relevant documents had been disclosed, but provided no explanation for
her previous statement that no exculpatory material had been withheld. She said
only that she was “unable to enter evidence or testify
regarding the documents and motivations behind their non-disclosure where any
existed at all”.
III.
The RPD’s Decision
[16]
The RPD found that Mr. Shen had failed to
establish a “plausible connection to torture of
evidence emanating from the PSB in China in relation to his case”. The
RPD accepted that Mr. Shen had demonstrated a prima facie connection
between the evidence and the use of torture, which gave rise to a rebuttable
presumption. However, the RPD found that the Crown had successfully rebutted
the presumption, based on the argument that one cannot infer from the
widespread use of torture by Chinese officials that torture was used in Mr.
Shen’s case. The RPD declined to exclude the evidence, but stated that any
evidence that was shown to have been obtained through coercion or forced
confession would be accorded little or no weight at the hearing.
[17]
The RPD rejected Mr. Shen’s argument that the
Crown had breached its duty of candour because of counsel’s statement that no
exculpatory evidence had been withheld during the first RPD hearing. The RPD agreed
that some of the documents that were previously undisclosed could be considered
exculpatory, and noted that some of the undisclosed evidence had in fact been
translated for the first RPD hearing, thereby demonstrating that the Crown may
have been aware of its existence and relevance. The RPD stated that it would
draw a negative inference from the Crown’s failure to provide an explanation
for the false representation made during the first hearing, but then remarked: “To insinuate that Minister’s counsel was aware of the
relevance and exculpatory nature of the documents when she had received the
information from someone prior to her who had vetted the information, is
stretching”.
[18]
By the same token, the RPD rejected Mr. Shen’s
argument that the Crown’s conduct during the first hearing amounted to an abuse
of process. Applying the test in Blencoe v British Columbia (Human Rights
Commission), 2000 SCC 44, the RPD determined that the Crown’s failure to
disclose all of the evidence did not taint the proceedings to such a degree
that it amounted to one of the “clearest cases” where the Crown should be
prevented from further participation in the proceedings. The RPD noted that
there was a public interest in determining the question of Mr. Shen’s
exclusion, and found that he would now be given a full opportunity to meet the
case against him with the benefit of the newly-disclosed documents. The RPD
noted that in B135, the remedy provided for a breach of the duty of
disclosure was re-determination of the claim. Since this was already underway
in Mr. Shen’s case, the RPD concluded that no other remedy was necessary.
IV.
Issues
[19]
This application for judicial review raises the
following issues:
A.
Is the application for judicial review
premature?
B.
What is the applicable standard of review?
C.
Was the RPD’s determination that there was no
breach of the duty of candour and no abuse of process correct?
V.
Analysis
A.
Is the application for judicial review
premature?
[20]
The Crown takes the position that Mr. Shen’s
application for judicial review is premature. The Crown notes that the RPD has
not made a decision regarding Mr. Shen’s claim for refugee protection. Mr. Shen
may ultimately be successful before the RPD, rendering any concern about abuse
of process moot. Furthermore, the Crown says that although the RPD declined to
exclude the evidence emanating from the PSB, it has yet to determine whether
the evidence will be relied upon. The Crown therefore urges this Court to
refrain from intervening in the RPD’s interlocutory decisions.
[21]
The Crown relies on the general rule that “absent exceptional circumstances, courts should not
interfere with ongoing administrative processes until after they are completed,
or until the available, effective remedies are exhausted” (Canada
(Border Services Agency) v CB Powell Ltd., 2010 FCA 61 at paras 31-33 [CB
Powell]). The Crown submits that the threshold for exceptionality is high,
and even concerns about procedural fairness, bias, or important constitutional
issues do not allow the parties to bypass the administrative process where
issues may be raised and an effective remedy may be granted (CB Powell
at para 33; Halifax (Regional Municipality) v Nova Scotia (Human Rights
Commission), 2012 SCC 10 [Halifax]).
[22]
Mr. Shen does not dispute the general principle
that courts should refrain from interfering in ongoing administrative
proceedings, but submits that the exceptional circumstances of his case warrant
a departure from this rule. He asserts that the doctrine of abuse of process is
a recognized exception to the general principle against non-interference in
administrative proceedings (John Doe v Canada (Minister of Citizenship and
Immigration), 2007 FC 327; Almrei v Canada (Minister of Citizenship and
Immigration), 2014 FC 1002 [Almrei]; Beltran v Canada (Minister
of Citizenship and Immigration), 2011 FC 516).
[23]
I agree with the Crown that Mr. Shen’s request
that this Court review the RPD’s refusal to exclude evidence on the ground that
it was obtained by torture is premature. The RPD found that Mr. Shen’s
arguments were speculative, and that evidence of widespread torture in China
was not sufficiently specific to Mr. Shen’s circumstances. The RPD held that “there is insufficient evidence for me to determine that
there is a high risk that the Applicant’s sister’s statements are a product of
torture … until I have had the opportunity to conduct my own credibility
assessment in an upcoming hearing”. The RPD also found that there was a
serious possibility that the evidence had been obtained through coercion, but
this assessment would have to be made “in the fullness
of the upcoming hearing”.
[24]
The RPD rejected Mr. Shen’s motion to exclude
evidence, but left the door open to further consideration of the matter. Mr.
Shen will have an opportunity to adduce evidence and make arguments regarding
the way in which his sister’s statement, or any other evidence relied upon by
the Crown, was obtained. If Mr. Shen is able to demonstrate that evidence was
obtained not only through coercion but also by the use of torture, then that
evidence must be excluded. There is also the possibility of judicial review of
the RPD’s final decision. I am satisfied that adequate remedies are available
to Mr. Shen, and the Court’s intervention at this time would be premature.
[25]
Turning to the question of abuse of process, six
factors guide the Court in determining whether to refuse relief on the ground
of prematurity: (i) hardship to the applicant; (ii) waste; (iii) delay; (iv)
fragmentation; (v) strength of the case; and (vi) the statutory context (Almrei
at para 34, citing Air Canada v Lorenz, [2000] 1 FC 494, [1999] FCJ
No 1383). This case already has a lengthy procedural history. The first hearing
before the RPD lasted 14 days, and resulted in three applications to this
Court. This may be contrasted with CB Powell and Halifax, both of
which concerned a single administrative proceeding with no previous procedural
history (Almrei at para 36).
[26]
Although hardship to an applicant is not a
determinative factor (Almrei at para 35), the RPD found that Mr. Shen
suffered “great emotional and financial” strain during the first RPD hearing.
The statement of Mr. Shen’s sister was translated for the first hearing but not
disclosed, lending an air of reality to the allegation that it was deliberately
withheld. As Justice Mosley found in Almrei at para 59, any waste, delay
or fragmentation that may result from proceeding with this aspect of Mr. Shen’s
application for judicial review is attributable to the conduct of the Crown.
[27]
The Federal Court of Appeal held in Canada
(Minister of National Revenue) v JP Morgan Asset Management (Canada) Inc.,
2013 FCA 250 at para 89 that even if an abuse of process is present, premature
intervention by way of judicial review will be unwarranted so long as an
adequate alternative remedy exists. The adequacy of effective recourse depends
upon the circumstances of each case. Here, I am not satisfied that the
possibility of judicial review of the RPD’s final decision provides an
effective remedy.
[28]
The Supreme Court of Canada held in Behn v
Moulton Contracting Ltd., 2013 SCC 26 at para 40, [2013] 2 S.C.R. 227 that the
doctrine of abuse of process is characterized by its flexibility and is
unencumbered by specific requirements. The doctrine evokes the public interest
in a fair and just process and the proper administration of justice. In the
unusual circumstances of this case, permitting the proceedings to continue
without a proper enquiry into whether the duty of candour was breached or an
abuse of process has occurred may harm the integrity of the RPD’s proceedings,
and may ultimately bring the administration of justice into disrepute.
B.
What is the applicable standard of review?
[29]
In B006 v Canada (Minister of Citizenship and
Immigration), 2013 FC 1033 at paras 35-36, Justice Kane held that the
standard of correctness applies to the RPD’s articulation of the legal test for
abuse of process, but its determination that there has been no abuse of process
is subject to review by this Court against the standard of reasonableness.
Abuse of process may also be characterized as an aspect of procedural fairness,
which is reviewable against the standard of correctness (Muhammad v Canada
(Minister of Citizenship and Immigration), 2014 FC 448 at para 51, citing Pavicevic
v Canada (Attorney General), 2013 FC 997 at para 29 and Herrera Acevedo
v Canada (Minister of Citizenship & Immigration), 2010 FC 167 at para
10).
[30]
In this case, I am not satisfied that the RPD
articulated or applied the correct test for abuse of process. The RPD’s
decision is therefore subject to review against the standard of correctness. No
deference is owed to the RPD’s decision, and the Court must undertake its own
analysis (New Brunswick v Dunsmuir, 2008 SCC 9 at para 50).
C.
Was the RPD’s determination that there was no
breach of the duty of candour and no abuse of process correct?
[31]
Before the RPD, Mr. Shen argued that the Crown
must have known that the undisclosed PSB documents included exculpatory
evidence because his sister’s statement to the PSB was translated during the
initial proceedings. Mr. Shen says that the statement of counsel for the Crown
that she “was not aware” of any exculpatory evidence was a breach of the duty
of candour, and tantamount to an abuse of process.
[32]
The duty of candour requires the Crown’s
representatives to be candid and fair in their dealings with both litigants and
tribunals (Tursunbayev v Canada (Minister of Public Safety and Emergency
Preparedness), 2012 FC 504 at para 42 [Tursunbayev]; Odosashvili
v Canada (Minister of Citizenship and Immigration), 2014 FC 308 at para 20
[Odosashvili]). The fact that statements were made in submissions rather
than in evidence does not limit or reduce the representative’s duty of candour
(Tursunbayev at para 42).
[33]
The RPD found that there was no breach of the
duty of candour because the Crown representative who made the statement was not
the same person who reviewed the evidence to determine whether it should be
disclosed to Mr. Shen. The RPD noted that a CBSA officer reviewed the evidence,
totalling thousands of pages, decided upon its relevance, requested translation
of any relevant material, and only then provided it to counsel representing the
Crown.
[34]
The RPD found it “plausible”
that the Crown knew about the exculpatory nature of the documents. However, the
RPD held that Mr. Shen could not speculate about the motivations or state of
mind of counsel representing the Crown during the first RPD hearing. The RPD
held that, without direct evidence that the CBSA had “forwarded
the evidence to Minister’s counsel”, it could not be inferred that the
Crown had deliberately withheld the documents in order to further its case
against Mr. Shen. This analysis was internally inconsistent and legally
incorrect.
[35]
A breach of the duty of candour does not require
that the individual who makes the statement know that the information is false.
This Court has found a breach of the duty of candour when statements or
materials presented by Crown counsel contained information that was “known or ought to have been known to be false” (Odosashvili
at para 13).
[36]
The RPD found that it was incumbent upon the
Crown to provide an explanation for failing to disclose evidence that was
relevant and exculpatory. Counsel representing the Crown declined to provide
any explanation, ostensibly because she could not provide evidence and continue
to act as counsel. The RPD then declared that it was drawing an adverse
inference against the Crown, but did not explain what this inference was. The
natural inference would be that the Crown’s withholding of evidence was
deliberate, and intended to undermine Mr. Shen’s opportunity to make full
answer and defence. If this were true, then it could be sufficiently serious to
warrant a stay of the Crown’s intervention in Mr. Shen’s claim for refugee
protection.
[37]
The RPD found that the statement by counsel
representing the Crown during the first hearing that no exculpatory evidence
had been withheld was false. Mr. Shen therefore established a prima facie
case that there had been a breach of the duty of candour. It was incumbent upon
the Crown to provide an explanation for the failure to disclose relevant and
exculpatory evidence. Where a party “fails to bring
before a tribunal evidence which is within the party’s ability to adduce, an
inference may be drawn that the evidence not adduced would have been unfavourable
to the party” (Bains v Canada (Minister of Citizenship and
Immigration), [2000] FCJ No 1264 at para 38, [2001] 1 FC 284; Canada
(Minister of Citizenship and Immigration) v Malik, [1997] ACF No 378 at
para 4, 128 FTR 309 [Malik]; Ma v Canada (Minister of Citizenship and
Immigration), 2010 FC 509 at paras 1-7). An adverse inference will not be
drawn against a party where a reasonable explanation is provided (Malik
at para 4).
[38]
This matter must be returned to the RPD member
to determine whether the duty of candour was breached; whether this amounted to
an abuse of process; and, if so, the appropriate remedy. The Crown must be
given a clear opportunity to provide an explanation for its failure to disclose
relevant and exculpatory evidence. This will likely require the involvement of
counsel who did not participate in decisions respecting disclosure that were
made during the first hearing before the RPD.
[39]
The RPD must then consider the adequacy of the
Crown’s explanation. If no explanation is forthcoming, then the RPD may draw an
adverse inference and must state clearly what that inference is. If the
evidence establishes, or an inference is drawn, that the Crown’s withholding of
relevant and exculpatory documents was deliberate, then this will amount to a breach
of the duty of candour and the RPD must consider whether it also constitutes an
abuse of process. If the answer is yes, then the RPD must fashion an
appropriate remedy, bearing in mind that a stay of proceedings or equivalent
remedy will be justified only in the “clearest of
cases” (Fabbiano v Canada (Minister of Citizenship and Immigration),
2014 FC 1219 at para 9).
VI.
Conclusion
[40]
For the foregoing reasons, the application for
judicial review is granted in part. Questions regarding the duty of candour and
abuse of process are remitted to the same member of the RPD for
re-determination in accordance with these reasons.
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