Date: 20080312
Docket: A-225-07
Citation: 2008 FCA 94
CORAM: LÉTOURNEAU
J.A.
NADON
J.A.
SHARLOW
J.A.
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Appellant
and
MARIA DEL ROSARIO FLORES CARRILLO
Respondent
REASONS FOR JUDGMENT
LÉTOURNEAU J.A.
[1]
We are
being asked to answer the following questions certified pursuant to paragraph
74(d) of the Immigration and Refugee Protection Act, S.C. 2001,
ch. 27 (Act):
What is meant by the
presumption of state protection (as mentioned in Canada (Attorney
General) v. Ward, [1993] 2 S.C.R. 689)? Does it impose a particular standard
of proof on refugee claims [sic] to rebut it, or does it merely impose an
obligation to present reliable evidence of a lack of state protection? If it
imposes a particular standard of proof, what is it?
[2]
In a
decision rendered on March 26, 2007, O’Reilly J. of the Federal Court of Canada
(judge) allowed the respondent’s application for judicial review and ordered a
new hearing by the Immigration and Refugee Board – Refugee Protection Division
(Board). The Minister of Citizenship and Immigration (Minister) appeals that
decision. For the reasons which follow, I believe the appeal should be granted.
The facts
[3]
I need not
relate the facts in detail. It is sufficient at this stage to say that the
respondent, Ms. Flores Carrillo, is a citizen of Mexico who sought refugee
protection in Canada in 2004. She stated that her
common-law spouse began abusing her in 2001. She complained to the police in
January 2004, after a severe beating and after she had hid at a friend’s house.
However, her spouse found out where she was hiding. She explained that to find
her, he had help from his brother, a federal judicial police officer. Because
she was of the view that she could not get state protection in Mexico, she fled that country on
October 20, 2004. She arrived in Canada
the same day and made a claim for refugee protection upon arrival.
The decision of the Board
[4]
The Board
dismissed the respondent’s claim. It was of the view that the respondent was
not a Convention refugee or a person in need of protection. It came to that
conclusion for two reasons.
[5]
First, the
Board did not find the respondent “to be a credible and trustworthy witness
with respect to her efforts to seek state protection”: see the reasons for
decision, appeal book, at page 41. This finding of the Board came as a result
of the inconsistencies within the body of the respondent’s evidence.
[6]
Second,
the Board concluded that even if it had found the respondent to be credible,
she had failed to rebut “the presumption of state protection with “clear and
convincing” evidence within the “preponderance of probability category” as
stated in Xue”. The Board referred in fact to the following statement of
Rothstein J. of the Federal Court Trial Division (as he then was) in the case
of Xue v. Canada (Minister of Citizenship and Immigration), [2000]
F.C.J. No. 1728, at paragraph 12.
[12] Having
regard to the approach expressed by Dickson C.J.C. in Oakes, i.e. that
in some circumstances a higher degree of probability is required, and the
requirement in Ward that evidence of a state’s inability to protect must
be clear and convincing, I do not think that it can be said that the Board
erred in its appreciation of the standard of proof in this case. If the Board
approached the matter by requiring that it be convinced beyond any doubt
(absolutely), or even beyond any reasonable doubt (the criminal standard), it
would have erred. However, the Board’s words must be read in the context of the
passage in Ward to which it was referring. Although, of course, the
Board does not make reference to Oakes or Bater, and while it
would have been more precise for the Board to say that it must be convinced
within the preponderance of probability category, it seems clear that what the
Board was doing was imposing on the applicant, for purposes of rebutting the
presumption of state protection, the burden of a higher degree of probability
commensurate with the clear and convincing requirement of Ward. In doing
so, I cannot say that the Board erred.
[Emphasis added]
[7]
Indeed,
the Board noted that the respondent “only reported the abuse on one occasion
and never made a complaint about the involvement of the abuser’s brother, a
federal judicial police officer”. The Board considered that fact in the context
of the information on the record relating to the availability of state
protection and found that the respondent’s evidence was not sufficient to meet
the onus of providing clear and convincing proof that state protection would
not be available to her: see the reasons for the Board’s decision, appeal book,
at page 49.
[8]
In
addition, the Board ruled that the “fact that a state does not provide perfect
protection is not, in itself, a basis for determining that the state is
unwilling or unable to offer reasonable protection in the circumstances: ibidem,
at pages 49 and 50.
The decision of the Federal Court
[9]
According
to the judge, the Board imposed too high a standard of proof with respect to
the issue of whether there was state protection available in Mexico. This, he said, amounted to
an error of law.
[10]
In
addition, the judge concluded that the presumption of state protection is a
legal presumption which can be rebutted when a claimant adduces reliable
evidence of the particular state’s inability to offer protection: see
paragraphs 16, 17 and 30 of his reasons for judgment.
[11]
Furthermore,
the learned judge ruled that the case of Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 did not
establish a special standard of proof in relation to state protection: ibidem,
at paragraphs 19 and 24. In his view, La Forest J. in Ward simply
describes “the kind of evidence that would be capable of satisfying the
objective branch of the definition of a refugee” when he required that there be
a clear and convincing confirmation of a state’s inability to protect: ibidem,
at paragraph 24. This requirement does not refer to a standard of proof greater
than a balance of probabilities: ibidem at paragraphs 22, 23 and 24.
The submissions of the parties
[12]
The
appellant raises two grounds of appeal. The judge erred in concluding that the
presumption of adequate state protection is a legal presumption. Rather he
submits that it is a factual presumption rebuttable by means of “clear and
convincing evidence”. Therefore, it was also an error for the judge to rule
that the respondent needed only to adduce reliable evidence of the state’s
inability to protect her in order to rebut the presumption.
[13]
Counsel
for the respondent supports the judge on all his findings although he agreed
that, in relation to the presumption of state protection, what matters for his
client is that the presumption is one that is rebuttable, not whether it is a
legal or a factual presumption. I do not think there is any doubt that the
presumption is rebuttable.
Analysis of the decision
[14]
It is
unfortunate that the judge did not address the primary finding of the Board
regarding the lack of credibility of the respondent. Had he done that, it might
not have been necessary for him to address the alternative and secondary ground
on which the Board rested its decision. The litigation would have ended there
and scarce judicial resources would have been spared.
[15]
In the
end, as a result, we are seized with an appeal the focus of which is on a
subsidiary ground for dismissing the respondent’s claim when the main reason
for dismissing it, i.e. the lack of credibility, has been totally evacuated
from the debate before us and ignored by the parties. In view of the
substantial deference required to be given to credibility findings, the judge should
have dealt with this issue first.
Burden of proof, standard of proof and
quality of the evidence
[16]
Burden of
proof, standard of proof and quality of the evidence necessary to meet the
standard of proof are three different factual realities and legal concepts
which should not be confused. Unfortunately, as counsel for the respondent
pointed out, the words are often used interchangeably, resulting in confusion
of the three concepts and realities.
a) The burden of proof
[17]
The
respondent claims that the state of Mexico
could not or failed to provide her with state protection against her husband’s
physical abuse. As a result of her claim, the respondent bears both an
evidentiary and a legal burden.
[18]
Indeed, in
order to rebut the presumption of state protection, she must first introduce
evidence of inadequate state protection (for the sake of convenience, I will
use “inadequate state protection” as including lack of such protection). This
is the evidentiary burden.
[19]
In
addition, she must convince the trier of fact that the evidence adduced
establishes that the state protection is inadequate. This is the legal burden
of persuasion.
b) The standard of proof
[20]
A claimant
must assume his or her legal burden on a balance of probabilities. I agree with
the judge that the Ward case does not require a higher probability than
what is normally required on the balance of probabilities standard to meet the
legal burden.
[21]
I also
agree with the judge that, to the extent that relying on the Xue case, supra,
meant a higher degree of probabilities than what is normally required by the
standard, this is an error of law.
[22]
It is true
that, in the case of R. v. Oakes, [1986] 1 S.C.R. 103, Chief Justice
Dickson introduced a requirement that there be a heightened standard of proof,
that is to say a higher probability than the usual standard. At paragraphs 67
and 68, he wrote:
[67] Nevertheless,
the preponderance of probability test must be applied rigorously. Indeed, the
phrase “demonstrably justified” in s. 1 of the Charter supports this
conclusion. Within the broad category of the civil standard, there exist
different degrees of probability depending on the nature of the case: see
Sopinka and Lederman, The Law of Evidence in Civil Cases (Toronto: 1974), at
p. 385. As Lord Denning explained in Bater v. Bater, [1950] 2 All E.R.
458 (C.A.), at p. 459:
The case may
be proved by a preponderance of probability, but there may be degrees of
probability within that standard. The degree depends on the subject-matter. A
civil court, when considering a charge of fraud, will naturally require a
higher degree of probability than that which it would require if considering
whether negligence were established. It does not adopt so high a degree as a
criminal court, even when it is considering a charge of a criminal nature, but
still it does require a degree of probability which is commensurate with the
occasion.
…
[68] Having regard
to the fact that s. 1 is being invoked for the purpose of justifying a
violation of the constitutional rights and freedoms the Charter was designed to
protect, a very high degree of probability will be, in the words of Lord
Denning, “commensurate with the occasion”.
[23]
However,
as Chief Justice Dickson himself acknowledged, his statement was made in the
context of a Charter challenge to a fundamental constitutional right and a
section 1 argument that the limit to such right is demonstrably justified in a
free and democratic society. The Chief Justice was addressing a state intrusion
on, or a curtailment of, a citizen’s constitutionally guaranteed right. In view
of the issue at stake, it is not surprising that the Supreme Court of Canada
would require a higher standard of proof, short of proof beyond reasonable
doubt, to ensure a better protection of constitutionally guaranteed rights
against state infringement.
[24]
Here,
however, we are dealing with a different question. We are, so to speak, in a
different ballpark. It is often a bewildered and resourceless refugee trying to
rebut a presumption of state protection by establishing that the protection is
inadequate. Nothing requires a departure from the usual balance of
probabilities standard applicable to rebuttals of presumptions in
administrative or civil matters.
[25]
I think
that La Forest J. properly stressed in paragraph 51 of the Ward case, supra,
that the “presumption serves to reinforce the underlying rationale of
international protection as a surrogate, coming into play where no alternative
remains to the claimant”. The presumption indicates that the responsibility towards
a refugee first lies with the state of which the refugee is a citizen. It is in
that sense that La Forest J., in my respectful view, said that “this
presumption increases the burden on the claimant”: ibidem. His reference
to the burden on the claimant was not a reference to the burden of proof in the
legal sense, but rather to the difficult task of rebutting a presumption that
the claimant’s state is able to provide adequate protection.
[26]
Indeed, in
Hinzman v. Canada (Minister of Citizenship and Immigration), 2007 FCA
171, at paragraph 57, our colleague Sexton J.A. used a somewhat similar
expression when he wrote that “a claimant coming from a democratic country will
have a heavy burden when attempting to show that he should not have been
required to exhaust all of the recourses available to him domestically before
claiming refugee status” (emphasis added). I think our colleague, as was La
Forest J. in the Ward case, referred to the quality of the evidence that
needs to be adduced to convince the trier of fact of the inadequate state
protection. In other words, it is more difficult in some cases than others to
rebut the presumption. But this in no way alters the standard of proof. In this
respect, I fully agree with the finding of the judge that La Forest J. in Ward
was referring to the quality of the evidence necessary to rebut the presumption
and not to a higher standard of proof.
[27]
This
brings me to the substance of the third concept, i.e. the quality or nature of
the evidence. It is on this issue that I disagree with the position taken by
the judge.
c) The nature or quality of the evidence required
to rebut the presumption
[28]
Although
the judge discussed the “clear and convincing evidence” requirement to rebut
the presumption of state protection, in the end he substituted a lower
threshold. At paragraph 30 of his reasons for judgment, he wrote:
In my view, the
presumption of state protection falls away once the claimant has provided
reliable evidence of a lack of state protection.
Evidence of the substitution also appears in the questions
that he certified.
[29]
I agree
with counsel for the appellant that this is an error of law. It is not disputed
that this error is reviewable on a standard of correctness.
[30]
In my
respectful view, it is not sufficient that the evidence adduced be reliable. It
must have probative value. For example, irrelevant evidence may be reliable,
but it would be without probative value. The evidence must not only be reliable
and probative, it must also have sufficient probative value to meet the
applicable standard of proof. The evidence will have sufficient probative value
if it convinces the trier of fact that the state protection is inadequate. In
other words, a claimant seeking to rebut the presumption of state protection
must adduce relevant, reliable and convincing evidence which satisfies the
trier of fact on a balance of probabilities that the state protection is
inadequate.
Application of these principles to the
present case
[31]
The Board
acknowledged the prevalence of domestic abuse in Mexico. It then reviewed the various steps
taken by the authorities to address the issue: see the Board’s reasons at pages
43 to 49 of the appeal book.
[32]
It
proceeded to review the law governing the presumption of state protection. It
stated that local failures to provide effective policing do not amount to a
lack of state protection. Relying upon the findings of this Court in Kadenko
v. Canada (Solicitor General) (1996), 143 D.L.R. (4th) 532,
leave to appeal to the Supreme Court of Canada refused on May 8, 1997, it
stated that “the more democratic the state’s institutions, the more the
claimant must have done to exhaust all the courses of action open to him or
her”: ibidem. It found that Mexico
is a fledgling democracy governed by the rule of law: ibidem, at pages
43-44.
[33]
The Board
found that the respondent had failed to make determined efforts to seek
protection. She reported to police only once during more than four years of
alleged abuse: ibidem, at page 45.
[34]
In
addition, the Board concluded based on the evidence before it that the
respondent did not make additional effort to seek protection from the
authorities when the local police officers allegedly did not provide the
protection she was seeking: ibidem. She could have sought redress
through National or State Human Rights Commissions, the Secretariat of Public
Administration, the Program Against Impunity, the General Comptroller’s
Assistance Directorate and the complaints procedure at the office of the
Federal Attorney General: ibidem, at page 49.
[35]
Finally,
the Board noted the respondent’s omission to make a complaint about the
involvement of the abuser’s brother, who allegedly is a federal judicial police
officer, when the evidence indicates that substantial, meaningful and often
successful efforts have been made at the federal level to combat crime and
corruption: ibidem, at pages 46 and 49.
[36]
Considering
the principles relating to the burden of proof, the standard of proof and the
quality of the evidence needed to meet that standard defined as a balance of
probabilities against the factual context, I cannot say that it is an error or
unreasonable for the Board to have concluded that the respondent has failed to
establish that the state protection is inadequate.
Conclusion
[37]
For these
reasons, I would allow the appeal, set aside the decision of the Federal Court
and restore the decision of the Board.
[38]
I would
answer the certified questions as follows:
A refugee who claims
that the state protection is inadequate or non-existent bears the evidentiary
burden of adducing evidence to that effect and the legal burden of persuading
the trier of fact that his or her claim in this respect is founded. The
standard of proof applicable is the balance of probabilities and there is no
requirement of a higher degree of probability than what that standard usually
requires. As for the quality of the evidence required to rebut the presumption
of state protection, the presumption is rebutted by clear and convincing
evidence that the state protection is inadequate or non-existent.
“Gilles
Létourneau”
“I
agree
M.
Nadon J.A.”
“I
agree
K.
Sharlow J.A.”
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