Date: 19981207
Docket: IMM-954-98
BETWEEN:
NATALIA ERMINA, ROMAN ERMIN and
MARIA ERMINA
Applicants
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TREMBLAY-LAMER J.:
[1] This is an application for judicial review of a decision of the Immigration and Refugee Board (the "Board") to grant the Minister"s application to reconsider and vacate the convention refugee status of the applicant and her two dependent children.
FACTS
[2] The applicant and her two children are from Russia and were declared convention refugees in June of 1993, no reasons were requested or given. In support of her application for convention refugee status, the applicant submitted her birth certificate as proof of her Jewish nationality.
[3] RCMP forensic testing has since established that portions of the birth certificate were altered by chemical bleaching. Upon discovery of this fact, the Minister applied for leave to reconsider and vacate the decision granting refugee status, based on the applicant"s misrepresentation of a material fact. Leave was granted, and a hearing was held on February 18, 1998.
[4] At the hearing, the applicant attempted to call Mr. Lorne Butchart as a witness. Mr. Butchart was the chair of the panel that granted the applicant"s refugee status. The applicant informed the panel that Mr. Butchart was willing to testify as to his decision. The panel refused to allow the applicant to call him, based on the doctrine of judicial immunity. The applicant then attempted to introduce an affidavit, sworn by Mr. Butchart, to the same effect. Again the panel refused to allow it. The applicant submitted no further evidence and the panel rendered its decision to grant the Minister"s application.
ISSUE
Did the Board err in law in determining that the evidence of Mr. Butchart was inadmissible on the grounds of judicial immunity?
ANALYSIS
[5] The question of judicial immunity for judges was fully addressed in MacKeigan v. Hickman.1 This case arose out of the inquiry into the wrongful conviction of Donald Marshall Jr. and whether or not the five members of the Court of Appeal were compellable or competent to testify at the inquiry.
[6] Glube C.J.T.D., held that they were neither competent nor compellable. In her opinion, any other conclusion would undermine the entire judicial system. She states the following:
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A judge must not testify before a commission or court on matters which came before the judge in his or her judicial capacity, even if the judge would like to respond to one or more of the questions which have been publicly raised. It would be wrong to do so. One question could not be asked in isolation and there is an obligation to preserve the judicial immunity for the benefit of the public. For this immunity, in the performance of judicial duties, is not for a judge personally, it is for the benefit of the public "to protect the judicial system against interference or influence which might pervert the course of justice."2 |
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[7] The Court of Appeal affirmed the decision3 and the Supreme Court of Canada dismissed the appeal,4 focussing primarily on whether or not judges were compellable.
[8] The applicant agrees that Board members are not compellable, but submits that they are competent to testify. This argument fails. It would be contrary to the administration of justice and would undermine the integrity of the system to find otherwise. The doctrine of judicial immunity applies, in my opinion, both to the compellability and competency of members of administrative tribunals.
[9] In Agnew v. Ontario Association of Architects,5 Campbell J. held that the rule of judicial immunity applies to both judges and tribunal members. He found that:
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The authorities do not make it clear whether this general rule applies equally to members of administrative tribunals. In logic, there is no reason why it should not. The mischief of penetrating the decision process of a tribunal member is exactly the same as the mischief of penetrating the decision process of a judge. |
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Apart from the practical consideration that tribunal members and judges would spend more time testifying about their decisions than making them, their compellability would be inconsistent with any system of finality of decisions. No decision and a fortiori no record, would be really final until the judge or tribunal member had been cross-examined about his decision. Instead of review by appeal or extraordinary remedy, a system would grow up of review by cross-examination. In the case of a specialized tribunal representing different interests the mischief would be even greater because the process of discussion and compromise among different points of view would not work if stripped of its confidentiality. |
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It is not necessary to catalogue all the different forms of mischief that might result from the compellability of judges and tribunal members to testify about their decisions. It is sufficient to say that there is no reason in logic to distinguish between a judge and a member of the statutory tribunal under consideration here.6 |
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[10] I accept the reasoning of Campbell J. in Agnew v. Ontario Association of Architects and find that it applies equally to the issue of competency. To permit a panel member to voluntarily testify would defeat the whole concept of judicial immunity. In the present matter, for example, the applicant would presumably ask what other evidence the panel had before it, when making its decision. This clearly opens the door to a re-examination of the panel"s decision, particularly in the event of cross-examination. Decisions must be final and subject only to review in the ordinary channels.
[11] Without the testimony of Mr. Butchart, the Board"s decision to allow the Minister"s application to vacate the applicant"s refugee status was reasonable. The applicant herself stated that her refugee status was based primarily on her Jewish nationality and only secondarily on the fact that her husband had defected.7 Therefore, the fact that the birth certificate, which was used to establish her Jewish nationality, had been altered led to the conclusion that the applicant had misrepresented a material fact. When the birth certificate was excluded, the panel determined that there was insufficient other evidence to establish her claim to refugee status. This decision was not unreasonable.
CONCLUSION
[12] The application for judicial review is dismissed.
"Danièle Tremblay-Lamer"
JUDGE
OTTAWA, ONTARIO
December 7, 1998.
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1 (1988), 43 C.C.C. (3d) 287 (N.S.T.D.).
2 Ibid. at 336 [reference omitted].
3 (1988), 46 C.C.C. (3d) 191 (N.S.C.A.).
4 (1989), 50 C.C.C. (3d) 449 ( S.C.C.).
5 (1987), 64 O.R. (2d) 8 (Div. Ct).
6 Ibid. at 14.
7 Board"s reasons, Application Record at 9.
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