Date: 20110209
Docket: A-247-10
Citation: 2011 FCA 51
CORAM: NOËL
J.A.
EVANS
J.A.
SHARLOW
J.A.
BETWEEN:
WAYNE ANTHONY HILLARY
Appellant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
EVANS J.A.
Introduction
[1]
Wayne
Anthony Hillary, a citizen of Jamaica, is in his early 40s. He came to Canada
as a permanent resident in 1982 when he was 13 years old and left school after
grade 9. He has been ordered deported on the basis of a string of criminal
convictions starting in 1987. He has been diagnosed as suffering from
schizophrenia, is HIV positive, and has been addicted to crack cocaine.
[2]
Mr Hillary
says that the decision of the Immigration Appeal Division (IAD) of the Immigration
and Refugee Board of Canada (Board) to dismiss his appeal against deportation
should be reopened because the IAD denied him a fair hearing when it failed to
inquire whether he appreciated the nature of the proceeding, in order to
determine whether he required the assistance of a designated representative.
[3]
In my
view, the duty of fairness did not oblige the IAD, on the facts of this case,
to make this inquiry. The fact that the IAD knew that Mr Hillary was schizophrenic
was not in itself sufficient to trigger a duty, on its own initiative, to
inquire into the level of his comprehension and, if it found him unable to
understand the nature of the proceedings, to advise him that a designated
representative would be appointed to assist him.
[4]
Mr Hillary
appeals from a decision of the Federal Court (2010 FC 638), in which Justice
Russell (Judge) dismissed his application for judicial review seeking to set
aside a decision by the IAD, dated August 7, 2009. In that decision, the IAD
dismissed an application by Mr Hillary to reopen the decision of another panel
of the IAD, dated February 21, 2007, holding that the deportation order was
valid and that, in all the circumstances, there was no basis for suspending his
removal.
[5]
The Judge
certified the following question under section 79 of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA):
When
evidence is presented that an appellant is suffering from a mental illness,
does
a duty arise in the IAD to determine in accordance with s. 167(2), whether
or
not the appellant is capable of understanding the nature of the appeal
proceedings?
If
so, what formal procedural steps must be taken by the Board to meet this duty?
First Deportation Order
[6]
Mr Hillary
was first ordered deported in 1991 on the basis of his criminal convictions.
However, in a decision dated May 31, 1993, the IAD stayed the deportation order
for five years, subject to certain conditions.
[7]
In its
reasons for decision, the IAD quoted from a report by Dr Bruce Ally, prepared
in 1993 while Mr Hillary was serving a sentence of imprisonment. Dr Ally stated
that Mr Hillary had “finally received a psychiatric examination which diagnosed
schizophrenia.” He went to say that Mr Hillary “needs a supervised treatment
setting” because otherwise he was likely to stop taking his medication, and “[a]t
such time the disordered thinking begins to reappear and he is unable to
control or order his thinking and soon finds himself in conflict with the law
once again.” For these reasons, Dr Ally concluded, “to release this client on
his own would be unconscionable”.
Second deportation order
[8]
In 1998,
shortly after the Board cancelled the 1991 deportation order, Mr Hillary
resumed his criminal activities and was convicted of several offences. He was
again ordered deported and a removal order was made against him by the
Immigration Division of the Board on June 5, 2005.
[9]
In his appeal
against this deportation order Mr Hillary was represented before the IAD by
legal counsel, but not the counsel representing him in the present proceeding.
In his evidence to the IAD, Mr Hillary denied committing most of the offences
of which he had been convicted, accusing the police, witnesses, and victims of
lying at his trials, and blaming prosecuting counsel for coercing him into
pleading guilty. On the basis of this testimony, the IAD found that Mr Hillary
showed no remorse and was a poor candidate for rehabilitation.
[10]
The IAD
noted that it could not assess the extent to which the medication for HIV and
schizophrenia, and the support of community agencies, that Mr Hillary had
received in Toronto would be jeopardised by his removal, because counsel had
submitted no evidence on the availability of treatment facilities in Jamaica.
Neither Mr Hillary’s mother, with whom he was living at the time of the
hearing, nor his sister who also lived in Toronto, provided evidence on his
behalf.
[11]
The IAD
further observed that Dr Ally’s diagnosis of schizophrenia had not been
updated, and was then 14 years old. The only other reference in the record to
Mr Hillary’s mental health was a 1995 medical report stating that Mr Hillary
“has a past history of schizophrenia being treated with Zyprexia 10 mg once
daily”. There was no evidence before the IAD on whether this condition was then
under control and what treatment, if any, Mr Hillary was receiving.
[12]
Two years
after the IAD had dismissed Mr Hillary’s appeal against the second deportation
order, he applied to the IAD to reopen its decision. The IAD refused to reopen.
Statutory provisions
[13]
The
following provisions of IRPA are relevant to the IAD’s refusal to reopen, which
is the subject of this appeal.
|
71. The Immigration Appeal Division, on
application by a foreign national who has not left Canada under a removal
order, may reopen an appeal if it is satisfied that it failed to observe a
principle of natural justice.
167.
…
(2) If a person who is the subject of
proceedings is under 18 years of age or unable, in the opinion of the
applicable division, to appreciate the nature of the proceedings, the
Division shall designate a person to represent the person.
|
71. L’étranger qui n’a pas quitté le
Canada à la suite de la mesure de renvoi peut demander la réouverture de
l’appel sur preuve de manquement à un principe de justice naturelle.
167.
[…]
(2) Est commis d’office un représentant
à l’intéressé qui n’a pas dix-huit ans ou n’est pas, selon la section, en
mesure de comprendre la nature de la procédure.
|
Decision of the IAD under review
[14]
In support
of his application requesting the IAD to reopen its dismissal of his appeal
against the second deportation order on the ground of breach of a principle of
natural justice, Mr Hillary swore an affidavit, in which he said:
10.
During the IAD hearing I do verily believe that evidence was submitted clearly
stating
that I was schizophrenic. Throughout the hearing I was extremely confused
as
to what was happening. I felt that the proceedings were moving extremely
quickly
and
I could not follow them.
11.
Given my mental health illness at the time I do believe that I would have
benefited
by having a designated representative. I did not know that this was an
option
at the time, and had I known I would have requested one.
[15]
In its
reasons for dismissing the motion to reopen, the IAD noted that: Mr Hillary had
been represented by counsel, who raised no concern over Mr Hillary’s ability to
instruct him; no request was made for a designated representative; Mr Hillary
was familiar with IAD proceedings as a result of his successful appeal against
the first deportation order; he testified and produced evidence designed to
establish humanitarian and compassionate grounds for a stay of the second
deportation order; nothing in Mr Hillary’s behaviour or demeanour at the
hearing indicated that he needed a designated representative; and two years had
elapsed between the dismissal of the appeal by the IAD and the request to
reopen.
[16]
In short,
the reopening panel concluded, there was no evidence that Mr Hillary had been
unable to “tell his story” at his appeal, and no basis for obliging the IAD to
raise the possibility of the appointment of a designated representative and to
assess his level of comprehension of the nature of the proceeding.
[17]
The panel
also observed shortcomings in the evidence submitted in the appeal. It noted in
particular: the absence of updated evidence on Mr Hillary’s schizophrenia and
its treatment, and on the availability of treatment facilities in Jamaica; and
the failure to adduce evidence from his mother and sister. However, the panel
attributed these to the conduct of the appeal by counsel, not to Mr Hillary’s
inability to provide adequate instructions.
[18]
Accordingly,
in refusing to reopen the appeal decision, the panel concluded that any
inadequacy in counsel’s handling of the appeal before the IAD was not the
result of a breach of a principle of natural justice by the panel. There was no
basis for thinking that a designated representative would have instructed
counsel to conduct the case differently and “would have provided a different
outcome.”
Decision of the Federal Court
[19]
The Judge
identified as follows the issue raised by the application for judicial review. Because
it knew that Mr Hillary suffered from schizophrenia, was the panel of the IAD
that heard his appeal thereby required by the principles of natural justice to
advise him that the appointment of a designated representative was a
possibility and to assess whether he understood the nature of the proceedings?
[20]
The Judge
set out (at paras. 26-27), and seems to have accepted counsel for the
applicant’s explanation of the functions of a designated representative appointed
by the Board in the case of a minor or a person unable to understand the nature
of a proceeding. They include: instructing counsel and ensuring that they
perform their duties; seeing that the necessary evidence is put before the
Board; and, when appropriate, testifying. A designated representative may be a
family member or friend familiar with Board proceedings, or a lawyer or social
worker, for example.
[21]
The Judge
stated that IRPA, subsection 167(2) requires the appointment of a designated
representative when the Board is of the opinion that the person concerned does
not appreciate the nature of the proceeding. However, he held, there was no
authority for the further proposition that, simply on the basis of its
knowledge that the person concerned had a mental illness, the Board must advise
the person that a designated representative could be appointed, and inquire
into his or her understanding of the nature of the proceeding.
[22]
He went on
to say that there might be circumstances in which fairness would require the
imposition of such a duty. But that would depend on an examination of the
entire context of the particular case, and the Judge found nothing in the
context of this case to give rise to a duty to advise and inquire.
[23]
However,
he agreed with counsel for Mr Hillary that, if the Board had been in breach of
a principle of natural justice by failing to advise and inquire, the panel
should have ordered the decision reopened if the appointment of a designated
representative could, not would, have made a difference to the outcome
of the appeal.
Analysis
(i) preliminary matters
[24]
Two
preliminary observations are in order. The first concerns the question certified
by the Judge:
When
evidence is presented that an appellant is suffering from a mental illness,
does
a duty arise in the IAD to determine in accordance with s. 167(2), whether
or
not the appellant is capable of understanding the nature of the appeal
proceedings?
If
so, what formal procedural steps must be taken by the Board to meet this duty?
[25]
This
question is too general and abstract to admit of a helpful answer. However, I
assume that the Judge is in effect asking the following alternative questions.
Does a determination of whether the IAD is under a duty to form an opinion of
an appellant’s understanding of the nature of the proceedings depend on an
analysis of the entire factual context? Or, was the IAD’s knowledge that Mr
Hillary was schizophrenic, in and of itself, sufficient to require it to advise
him of the possibility that it could appoint a designated representative, and
to inquire into his ability to understand the nature of the proceedings? I
shall approach the certified question on that basis.
[26]
Second,
the record before us is thin. Thus, for example, it is not apparent from the
reasons given by the IAD for dismissing Mr Hillary’s appeal whether it
considered the issue of his ability to appreciate the nature of the proceedings.
The transcript of the hearing was not before either the IAD when it decided to
reject Mr Hillary’s application to reopen the dismissal of his appeal, or the
Judge when he heard the application for judicial review. The IAD had no current
evidence about Mr Hillary’s mental health and its likely impact on his ability
to understand the nature of the proceedings. Neither Mr Hillary nor his counsel
at the time indicated to the IAD that he could not understand the nature of the
proceedings.
(ii) standard of review and
procedural fairness
[27]
This is an
unusual case in that the decision under review is a decision of an
administrative tribunal that another panel of the tribunal had not breached a
principle of natural justice in dismissing an appeal. Because section 71 of
IRPA only permits the IAD to reopen an appeal for breach of a principle of
natural justice, the question before us is whether the panel erred when it
found that no breach had occurred at the appeal hearing and therefore refused
to reopen the decision.
[28]
It is
settled law that administrative decision-makers are not entitled to curial
deference on whether they afforded an individual a fair opportunity to
participate in a proceeding that culminated in an adverse decision: Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para.129; Khosa v.
Canada (Citizenship and Immigration), 209 SCC 12, [2009] 1 S.C.R. 339 at
para. 43. In my opinion, this principle is equally applicable in the present
case, where the IAD was required to rule on whether another panel of the same
tribunal had breached a principle of natural justice.
[29]
In the
absence of independent fact-finding by either the IAD or the Judge, this Court
must answer the certified question by deciding for itself whether the IAD panel
that dismissed Mr Hillary’s appeal breached a principle of natural justice by
failing to inquire into his understanding of the nature of the appeal proceedings.
[30]
This does
not mean, however, that every exercise by the IAD of a procedural discretion,
explicitly or implicitly conferred by IRPA, is subject to de novo
judicial review. The question on judicial review is whether, in all the
circumstances, the person concerned was deprived of a reasonable opportunity to
tell his or her story and, if relevant, to respond to the case against them?
(iii) IRPA, subsection 167(2)
[31]
Subsection
167(2) requires the IAD to appoint a designated representative when it is of
the opinion that the appellant does not appreciate the nature of the proceedings.
Read literally, it does not apply to the facts of the present case, because the
IAD panel that heard Mr Hillary’s appeal seems to have formed no opinion on
whether he appreciated the nature of the proceedings.
[32]
However,
the purpose of this subsection is to provide a reasonable opportunity, through
the assistance of a designated representative, for a person unable to
appreciate the nature of the proceedings to participate in them and to have his
or her interests adequately protected. This objective would be frustrated if a
panel could avoid subsection 167(2) by simply failing to form an opinion on the
person’s capacity, or by refusing to appoint a designated representative when
it should have been clear in the circumstances that the person did not
understand the nature of the proceedings.
[33]
Consequently,
there must be circumstances in which the IAD is under a duty to form an opinion
about a person’s level of comprehension. It must also be open to a court on an
application for judicial review to determine whether there was a rational basis
for the IAD’s opinion of the person’s capacity to understand the nature of the
proceedings.
[34]
The only
question before the Court in the present case is whether the IAD panel that
dismissed Mr Hillary’s appeal denied him the benefit of a principle of natural
justice. The principle of natural justice relevant to the present case is the
right to be represented at an administrative hearing. Without representation,
an individual may not able to participate effectively in the decision-making
process, especially when facing a more powerful adversary, such as a government
department.
[35]
The right
to representation in an administrative proceeding normally means the right of a
party to appoint someone, often legal counsel, to conduct the case before the
tribunal on their behalf. However, subsection 167(2) of IRPA recognizes that,
if their interests are to be adequately protected in a proceeding before the
Board, minors, and those unable to appreciate the nature of the proceedings,
also require the assistance of a designated representative who is sensitive to
the particular needs of the individual concerned and alert to their best
interests.
[36]
Subsection
167(2) provides specific content to the right to be represented at a hearing
before the Board. Thus, a failure by the Board to comply with the express and
implied procedural duties imposed by its enabling statute may constitute a
breach of a principle of natural justice. The factors listed in Baker v.
Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at
paras. 21-28, indicate that the content of the duty of fairness in an appeal to
the IAD by a permanent resident against removal is high. Particularly important
in this regard are: the nature of the individual interest at stake; the broadly
judicial nature of the IAD’s decision-making process; and, in the present case,
Mr Hillary’s particular vulnerability because of his mental illness.
(iv) was the IAD appeal panel
in breach of a principle of natural justice?
[37]
Counsel
does not argue that Mr Hillary was denied a fair hearing because the IAD failed
to appoint a designated representative to assist him in the appeal process.
Such an argument would be untenable. It cannot be inferred from the fact that
Mr Hillary is schizophrenic that he did not appreciate the nature of the
proceedings.
[38]
Nor is it
said that, on the basis of the documentary evidence before it, and of Mr
Hillary’s behaviour at the hearing, including his responses to the questions
put to him by counsel, it should have been obvious to the IAD that he did not
understand the nature of the proceedings and therefore required the appointment
of a designated representative.
[39]
One can
say no more than this: Mr Hillary’s schizophrenia may possibly have impaired
his ability to appreciate the nature of the proceedings to such an extent that
representation by counsel alone was insufficient to enable him to protect his
interests and to participate meaningfully in the process. However, this is not
enough to establish that the IAD’s dismissal of Mr Hillary’s appeal was
vitiated by a breach of a principle of natural justice.
[40]
It is always
within the discretion of the IAD to raise the issue itself and to inquire into
the appellant’s capacity. However, if the IAD makes no such inquiry, the Court
should intervene only if satisfied on the basis of an examination of the entire
context that the Board’s inaction was unreasonable and fairness required the
IAD to be proactive.
[41]
In my
opinion, given the adversarial nature of the IAD’s procedure, it will only be
in the most unusual circumstances that a panel is obliged to make inquiries in
a case where the appellant is represented by counsel who has not raised the
issue of the client’s ability to understand the nature of the proceedings. Such
is not the case here.
[42]
That the
IAD does not bear primary responsibility for identifying appellants who are
especially vulnerable is indicated by subsection 19(1) of the Immigration
Appeal Division Rules, SOR/2002-230 (Rules), which imposes on counsel for
the appellant and for the Minister a duty to advise the IAD if they believe
that a designated representative should be appointed because of the appellant’s
inability to appreciate the nature of the proceedings.
[43]
Similarly,
the Board’s Guideline 8, Guidelines on Procedures with Respect to Vulnerable
Persons Appearing Before the IRB, effective date December 15, 2006, states
(at section 7.3) that counsel is best placed to bring to the Board’s attention
the special vulnerability of a person who may require some kind of procedural
accommodation. However, the Board may also act on its own initiative (section
7.4).
[44]
I agree
substantially with the reasons given by the Judge for concluding that, on the
basis of the record before it, the mere fact that the panel of the IAD that
heard his appeal knew that Mr Hillary was schizophrenic was not sufficient to
oblige it to inquire into whether to appoint a designated representative under
IRPA, subsection 167(2). There was no evidence in the IAD’s record about the
current state of his mental health, its treatment, and the extent to which it
was likely to impair his understanding of the nature of the proceedings.
[45]
True, Mr
Hillary’s denial of responsibility at the IAD appeal hearing for any of the
approximately twenty offences of which he had been convicted was, to say the
least, unlikely to assist him in winning his appeal. Nonetheless, it could not
be inferred from his testimony that his understanding of the nature of the
proceedings was sufficiently impaired to oblige the IAD to make further
inquiries into his mental capacity, even though the issue had not been raised
by his counsel.
[46]
Indeed,
even the affidavit sworn by Mr Hillary in support of his application for
judicial review, two years after the IAD dismissed his appeal, falls short of
asserting that he could not instruct counsel and did not appreciate that the
appeal gave him an opportunity to explain why he should not be deported. He
stated only that he found that the proceedings “were moving extremely quickly”
and that he “could not follow them”, and that he was “extremely confused as to
what was happening”. He did not attribute his confusion to his mental illness.
[47]
In most
cases, as the Rules and Guideline 8 indicate, the IAD should be able to rely on
counsel to raise any concerns on the issue, and to bring into question the
appropriateness, in a given case, of the normal assumption that appellants
understand the nature of Board’s proceedings.
[48]
Moreover,
Mr Hillary was represented by counsel whose competence has not been directly
impugned in this proceeding, although, as the IAD noted, the manner in which he
handled the appeal may seem questionable. His counsel at the IAD appeal hearing
did not suggest that Mr Hillary required further assistance. This Court is in
no position to second guess counsel’s strategy and to conclude that Mr Hillary
was, in effect, unrepresented.
[49]
I would
add only this. If procedural fairness had required the IAD to inquire on its
own initiative whether Mr Hillary appreciated the nature of the proceedings, I
agree with Judge’s view that the failure to inquire would have constituted a
breach of a principle of natural justice, unless the appointment of a
designated representative could, not would, have made no
difference to the outcome of the appeal. See also Stumf v. Canada (Minister of Citizenship and
Immigration),
2002 FCA 148 at para. 5; Duale v. Canada (Minister of Citizenship and
Immigration), 2004 FC 150 at paras. 20-21.
Conclusions
[50]
For these
reasons, and despite counsel’s able submissions, I would dismiss the appeal and
answer the certified question as follows.
Question: When
evidence is presented that an appellant is suffering from a mental illness,
does a duty arise in the IAD to determine in accordance with s. 167(2), whether
or not the appellant is capable of understanding the nature of the appeal
proceedings? If so, what formal procedural steps must be taken by the Board to
meet this duty?
Answer: Whether the
principles of natural justice require the IAD to initiate inquiries to enable
it to form an opinion on whether an appellant who is suffering from a mental
illness appreciates the nature of the proceedings depends on an examination of
all the circumstances of the case. Since no such duty arose in the present
case, it is not necessary to address the hypothetical question of the
procedural steps that would have been necessary to discharge the duty.
“John M. Evans”
“I
agree.
Marc Noël J.A.”
“I
agree.
K. Sharlow J.A.”
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