Date: 20121010
Docket: A-77-12
Citation: 2012 FCA 256
CORAM: NOËL
J.A.
DAWSON J.A.
STRATAS
J.A.
BETWEEN:
RODERIC LAIDLOW
Appellant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT
OF THE COURT
(Delivered from the Bench at Toronto, Ontario, on October 10, 2012)
DAWSON J.A.
[1]
The
Refugee Protection Division of the Immigration and Refugee Board of Canada
(RPD) found that the appellant, Roderic Laidlow, is neither a Convention
refugee nor a person in need of protection. A judge of the Federal Court
(Judge), in reasons cited as 2012 FC 144, 6 Imm. L.R. (4th) 223,
dismissed Mr. Laidlow's application for judicial review of the decision of the
RPD. The Judge certified the following serious question of general importance:
Does the Immigration and Refugee
Protection Board violate the provisions of section 7 of the Charter if
it declines to postpone its hearing based on risk to life where there is a
pending humanitarian and compassionate application also based on risk to life?
[2]
This
is an appeal from the decision of the Federal Court.
[3]
On
this appeal, Mr. Laidlow raises the following three issues:
i)
Did
the RPD err by failing to adjourn his refugee hearing in light of the
constitutional issues he raised and the fact that a pending humanitarian and
compassionate application remained undetermined?
ii)
Did
the RPD err in law by ignoring evidence, misconstruing evidence and failing to
have regard to the totality of the evidence?
iii)
Does
subparagraph 97(1)(b)(iv) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (Act), as interpreted by the RPD and the Federal Court,
violate section 7 and subsection 15 (1) of the Charter and, if so, can
such violation be justified under section 1 of the Charter?
[4]
For
the reasons that follow, the certified question will be answered in the
negative and the appeal will be dismissed.
The Facts
[5]
Mr.
Laidlow is a citizen of Saint Vincent and the Grenadines (Saint Vincent). In
May 2009, while living in Canada without status, he was diagnosed with a brain
tumor. The tumor was removed, but as a result Mr. Laidlow suffers from a
deficiency of certain necessary hormones. His condition is known as
panhypopituitarism. The RPD found that Mr. Laidlow requires daily medication
and will do so for the rest of his life. Of particular relevance is DDAVP nasal
spray which Mr. Laidlow asserts is unavailable on a consistent basis in Saint Vincent. Mr. Laidlow's doctor wrote in a letter put in evidence before the RPD that
Mr. Laidlow requires this spray in order to survive.
[6]
In
September 2009, Mr. Laidlow submitted a refugee claim on the basis that his
life would be put at risk if he was deported to Saint Vincent. He later applied
on the same basis for permanent residence on humanitarian and compassionate
grounds.
[7]
Subparagraph
97(1)(b)(iv) of the Act provides:
97. (1) A person in
need of protection is a person in Canada whose removal to their country or
countries of nationality or, if they do not have a country of nationality,
their country of former habitual residence, would subject them personally
…
(b) to a risk to
their life or to a risk of cruel and unusual treatment or punishment if
…
(iv) the risk is not
caused by the inability of that country to provide adequate health or medical
care.
[8]
As
part of his application for protection Mr. Laidlow claimed that this provision
infringes both section 7 and subsection 15 (1) of the Charter.
[9]
A
refugee protection hearing originally scheduled for September 17, 2010, was
adjourned at the request of Mr. Laidlow's counsel. However, a second
adjournment request was denied. Counsel for Mr. Laidlow reapplied at the
refugee protection hearing for an adjournment. This request was also denied.
[10]
The
basis of the request for an adjournment was Mr. Laidlow's counsel's position
that the humanitarian and compassionate application should be determined prior
to the refugee claim. Counsel relied on the decision of this Court in Covarrubias
v. Canada (Minister of Citizenship and Immigration), 2006 FCA 365, [2006]
F.C.J. No. 1682 at paragraph 60 and 61 to argue that all non-constitutional
avenues are to be exhausted prior to consideration of any Charter
issues. Thus, in counsel's submission, the humanitarian and compassionate
request should be determined prior to the refugee protection hearing in which Charter
issues were raised.
[11]
The
RPD denied the request for an adjournment and rejected the Charter arguments.
The RPD found as a fact that "there is no factual foundation for the claim
that the claimant is at risk to his life, should he return to Saint Vincent".
[12]
This
decision was upheld by the Federal Court.
Consideration of the Issues
(a) The certified question
[13]
Counsel
for Mr. Laidlow did not make any submissions concerning the certified question.
[14]
The
Judge dealt with this issue at paragraphs 34 to 37 of his reasons, where he
wrote at paragraphs 34 and 35: [emphasis in original]
34 The question
is whether the possibility of risk to life and possible salvation
if an H & C decision favourable to the Applicant is made means that section
7 of the Charter has been violated because the Board did not adjourn its
hearing?
35 In this
respect, the decision of the Federal Court of Appeal in Poshteh v Canada (Minister of Citizenship and Immigration), [2005] 3 FCR 487, is instructive.
Rothstein JA (as he then was) wrote for the Court at paragraphs 62 and 63:
62 The
principles of fundamental justice in section 7 of the Charter are not
independent self-standing notions. They are to be considered only when it is
first demonstrated that an individual is being deprived of the right to life,
liberty or security of the person. It is the deprivation that must be in
accordance with the principles of fundamental justice. (See, for example,
Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307, at
paragraph 47.)
63 Here, all
that is being determined is whether Mr. Poshteh is inadmissible to Canada on the grounds of his membership in a terrorist organization. The authorities are to
the effect that a finding of inadmissibility does not engage an individual's
section 7 Charter rights. (See, for example, Barrera v. Canada (Minister of Employment and Immigration), [1993] 2 F.C. 3 (C.A.).) A number of proceedings may yet take place before he reaches the stage at which his
deportation from Canada may occur. For example, Mr. Poshteh may invoke
subsection 34(2) to try to satisfy the Minister that his presence in Canada is not detrimental to the national interest. Therefore, [page510] fundamental
justice in section 7 of the Charter is not of application in the determination
to be made under paragraph 34(1)(f) of the Act.
[15]
In
the absence of submissions on this issue asserting some particular error, we
have been unable to identify any error in the Judge's reasons. Substantially
for the reasons given by the Judge we would answer the certified question in
the negative.
(b)
Did
the RPD err by failing to adjourn the refugee hearing because the refugee claim
raised Charter issues?
[16]
As
noted above, Mr. Laidlow's argument that the refugee hearing should be
adjourned was based upon this Court’s decision in Covarrubias. There, at
paragraphs 60 and 61 the Court wrote:
[60] As I
stated earlier in these reasons, the applications Judge found that the male
appellant has failed to provide sufficient evidence of a risk to his life on
account of inadequate medical care should he be deported to Mexico. The applications Judge found, and I agree, that the appellants’ allegations of specific Charter
violations are without evidentiary foundation. Hence, there is no factual basis
for entering into a Charter analysis here.
[61] In
addition, and as the applications Judge noted, there is an adequate alternative
remedy in this case for the appellants, namely, the pending H&C
application, judicial review of that decision should the appellants be
unsuccessful, and an appeal to the discretion of the Minister. In keeping with
the reasons of Martineau J. in Adviento v. Canada (Minister of Citizenship
and Immigration) 2003 FC 1430 (CanLII),
(2003), 242 F.T.R. 295 (F.C.), at paragraph 54, I find that it is inappropriate
for the appellants to turn to the Court for relief under the Charter before
exhausting their other remedies.
[17]
Mr.
Laidlow's reliance upon this passage is, in our view, ill-founded. The RPD has
jurisdiction to consider Charter issues and did decide the Charter issues
raised by Mr. Laidlow. Covarrubias is distinguishable because the
decision-maker whose decision was under review did not have jurisdiction to
determine Charter issues. Nothing in the reasons of this Court supports
the argument that the RPD was required to hold its proceeding in abeyance
indefinitely pending a decision on the humanitarian and compassionate
application. Mr. Laidlow’s right to request an adjournment so he could exhaust
his non-constitutional remedies does not create a corresponding obligation on
the RPD to structure its hearing so that Mr. Laidlow’s constitutional arguments
are heard last.
(c)
Did
the RPD ignore or misconstrue evidence, or make a finding that was not
supported by the evidence?
[18]
The
Judge found the RPD reasonably concluded that Mr. Laidlow's life would not be
at risk if he were removed to Saint Vincent. This is substantially a question
of fact on which the Judge is entitled to deference, unless it can be shown
that the Judge's finding was premised on a wrong legal principle or that it was
vitiated by some palpable and overriding error (Canada (Information
Commissioner) v. Canada (Minister of National Defense), 2011 SCC 25, [2011]
2 S.C.R. 306 at paragraph 23).
[19]
Mr.
Laidlow’s situation is undoubtedly difficult, however no error of law or
palpable and overriding error in the Judge’s appreciation of the evidence has
been established. While there was evidence before the RPD that supported Mr.
Laidlow’s claim, equally there was evidence that reasonably supported the
conclusion reached by the RPD. As Mr. Laidlow’s counsel conceded in oral
argument the evidence was not entirely clear.
(d) The Charter issues
[20]
The
consequence of the RPD’s finding that Mr. Laidlow's life would not be at risk
if he were removed to Saint Vincent is that his Charter claims lack an
evidentiary foundation. It follows that it is not necessary for us to consider
the Judge's analysis of the Charter arguments, and we decline to do so.
Conclusion
[21]
For
these reasons the certified question is answered in the negative and the appeal
will be dismissed.
“Eleanor
R. Dawson”
Email this Content