Date: 20030715
Docket: IMM-2948-02
Citation: 2003 FC 877
Ottawa, Ontario, the 15th day of July 2003
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
QUEEN TAIRE
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
Introduction
[1] This is an application for judicial review of a June 5, 2002, decision by members of the Convention Refugee Determination Division of the Immigration and Refugee Board (IRB) that the applicant was not a Convention refugee.
Facts
[2] The applicant is a citizen of Nigeria, born in 1968. She claims to have a well-founded fear of persecution based on her membership in a particular social group: female victims of spousal abuse.
[3] In 1984, when she was 16, the applicant married an older man. Her parents forced her to live with him, but she refused to marry him legally. In exchange, the man promised to provide her with an education and to give her parents money and farm land, but he failed to provide the education.
[4] The applicant says her spouse constantly beat her. In 1990, she gave birth to a girl. In 1997, her spouse demanded the child have a clitoridectomy. The operation was performed. The applicant fled to her parents' home, but they sent her back to her spouse. A 50-year-old friend of her spouse said he would marry the girl when she was 13. The applicant decided to leave her spouse again.
[5] In the fall of 1998, the applicant and her daughter fled to Lagos with the help of a friend, Emmanuel. The applicant fell in love with Emmanuel, but her spouse found them. On May 23, 1999, Emmanuel was murdered, and the applicant and her daughter were forcibly brought back to the spouse.
[6] The applicant claims her spouse beat her again, this time pouring boiling water on her body. She says the police are indifferent to domestic abuse, as it is considered to be a family matter.
[7] The applicant left her spouse once again in November 1999. She fled to Canada with the help of Emmanuel's friend Olu. She left her daughter with an aunt in Benin City. She says that she is afraid of being killed by her spouse if she returns to Nigeria and that the authorities will not help her if she is abused again.
[8] In December 1999, the applicant married a Canadian citizen, Mr. Eddie Mukoro. In 2000, Mr. Mukoro applied for permanent residence in Canada for his wife.
[9] This application for judicial review is the second one the applicant has filed. Her first hearing was in April 2000. The decision of the IRB was quashed by the Federal Court in a November 2, 2001, decision by Madam Justice Hansen.
The decision of the Refugee Division
[10] The IRB heard the applicant on April 25, 2002. In its reasons dated June 5, 2002, the panel held that the applicant had not established that she was a Convention refugee. The IRB found that the applicant was not credible and had not left her country for the reasons she had given.
Passport
[11] The IRB remarked that the applicant had not produced any additional documentary evidence after her first hearing. The applicant testified that she had applied for a passport and received one in 1999 in Nigeria. She said that her brother had filled out the form and that the passport was still in Nigeria with him. The members asked why she had not produced the passport, and she answered that she had tried unsuccessfully in April 2000. She also said that she did not know she had to produce the passport and that she did have her birth certificate.
[12] The IRB noted that at the end of the hearing, the applicant requested more time in order to obtain additional documents. The request was turned down, but the IRB did say that if the documents were received before the decision was made, they would be taken into consideration. The IRB saw that three days after the hearing, the applicant produced her passport. There was no explanation of how the passport was obtained from Nigeria in three days. The IRB stated at pages 4 and 5 of its decision:
...We did not receive the shipping envelope explaining how the document was received by counsel from Nigeria three days after the hearing.
While we accept the document as corroboration of the claimant's identity as a Nigerian citizen, the speed with which she would have received it from Nigeria raises serious doubts about other testimony she gave about not being able to obtain additional information in support of her claim.
[13] The IRB pointed to the applicant's testimony that she had not tried to obtain documents concerning her father's death (apparently from a heart attack brought on by his daughter's problems) and Emmanuel's murder. She responded that she was not in a position to request documents about Emmanuel. The IRB concluded at page 5: "We found this to be a lack of diligence on the part of the claimant." The IRB felt that the applicant could have presented additional evidence before, rather than after, the hearing.
Birth certificate
[14] The IRB saw that the applicant had put in evidence Exhibit P-2, her birth certificate, dated July 20, 1991. The certificate was issued at the request of the applicant's father, who had apparently sworn a declaration of age. Attached to this certificate is the affidavit of Mr. Johnson Taire, the applicant's father, dated July 19, 1999, stating: "I, Mr. Johnson Taire (Male), a Christian and Citizen of the Federal Republic of Nigeria, residing..., do hereby make oath and state as follows...."
[15] The IRB pointed to the applicant's testimony that her father was not a Christian. With respect to this inconsistency, she said her brother had done the document, not her father. The members asked how her brother could swear an affidavit if it was not his. She said maybe it was a mistake. The IRB found that she was not credible on this point. The IRB also found her not credible when she claimed her father had agreed to apply for a birth certificate, considering that he was responsible for selling his daughter to the spouse and that he had forced her to go back and live with him.
[16] The IRB found that the applicant was a citizen of Nigeria, but that the conflicting and obscure evidence of how she obtained her birth certificate undermined her credibility with respect to the alleged abuse.
The applicant's flight
[17] The IRB pointed to the applicant's testimony that Olu, a friend of Emmanuel, had helped her to escape. She said she had bribed the guard with money from her brother. The IRB pointed out that she had given a different answer at her first hearing: she had testified that the money was from her spouse. Her response was that the money was from her spouse and her brother. The IRB concluded that she was not credible.
[18] The applicant testified that she had left home at five o'clock in the morning. The IRB asked what excuse she had used for going out so early. She said nothing, then replied that she had said she wanted to buy something. The IRB asked what kind of stores would be open at that hour. Counsel for the applicant replied that there is activity in African communities at that hour. The IRB added that the guard would have known that the applicant had already left home once. The IRB found that the story of her escape was not credible, stating that: "it was the claimant's inability to provide any consistent detail on this point which undermined her credibility."
[19] The applicant testified that she had given the guard 50 naira. She said that the money was from her brother and that her daughter had delivered it to her. She testified that when she escaped, she walked for 20 minutes because her brother was waiting for her with his car outside the compound. They drove to Lagos, a five- or six-hour trip. The IRB saw that she had written in her PIF:
Finally I left him, at the end of November 1999, with the help of one of Emmanuel's friend called Olu. I left my daughter with my maternal aunt living in Benin.
[20] The IRB said that the applicant had not mentioned her brother's help in her PIF, nor Olu's help in her testimony. The IRB stated at page 9 of its decision:
...While this specific inconsistency was not addressed in the hearing room, they both constitute declarations made by the claimant. Again, it was this type of inconsistency which repeatedly undermined the claimant's credibility.
Police assistance
[21] The applicant testified that she had gone to the police twice: after being burned by her spouse in 1999, and before seeking refuge with Emmanuel. The IRB asked for more details about the first visit to the police station. She said it was after she was beaten and abused. The IRB remarked that she gave no more details, nor the date of the incident. The IRB saw that in her PIF, she had not mentioned contacting the police after her spouse was violent. The IRB pointed out that according to her testimony at her first hearing, she had contacted the police in 1998, and they had said they would not do anything because it was a domestic dispute.
[22] The IRB found that the applicant's testimony was not credible, stating that:
Since the claimant testified that she had shown the burn marks from the boiling water poured on her to the police, which happened in 1999, we find it implausible that she would not have been able to consistently identify that incident in both hearings consistently. The vagueness of the rest of her testimony on this point further undermined her general credibility.
Medical documents
[23] The IRB saw that the applicant had submitted a document dated August 15, 1999, a receipt for burn treatment. She had also submitted a medical report dated April 17, 2000, indicating that she had multiple scars and hyperpigmentation on her body. The document says that many of the marks were caused by acne, but that according to the applicant, the rest were caused by boiling water. The IRB stated at page 11 of its decision:
...The panel does not contest the content of either Exhibit P-4 of [sic] P-5. However, given the credibility issues discussed in these reasons to this point, we find the documents insufficient in detail to counterbalance the lack of credibility in the other evidence before us.
Other documents
[24] The IRB accepted the passport as evidence of the applicant's nationality, but chose not to accept the letters and photos from her brother (submitted after the hearing) because of problems with the applicant's credibility. The IRB commented on this at page 11 of its decision:
...The photos show a building the claimant shows as her parents' home. They also show a man she identified as her brother, with wounds and cotton dressing. We find that on their own, the photos could be subject to various explanations. Therefore, they are not sufficient to counterbalance our credibility findings on the claimant's oral testimony.
[25] The IRB held that the applicant had failed to establish that there was a serious possibility of her being persecuted if she were to return to Nigeria. It said it was aware that traumatic events could affect oral evidence, but that in this case, that did not explain the numerous inconsistencies cited at pages 11 and 12 of its decision:
...The claimant's inability to consistently state the number of times or when she went to the police was one example. Her inability to consistently identify who helped her escape in November 1999 is another example. Her inability to explain why a sworn declaration of her father would indicate that he is a Christian, when the claimant clearly states that he is not, is still another. Her inability to explain how she would have gotten past the guard who was hired to increase security around the compound, after she would have run away for the second time, is another. On the one hand, the claimant stated that she had difficulty getting documentary evidence from Nigeria to corroborate her story, while on the other, she was able to produce as passport three days after the hearing, which she testified was in Nigeria.
All of these points lead the panel to conclude that we do not believe the claimant's story as she alleges it....
Issues
[26] The applicant contends that the IRB made a number of errors by making unreasonable credibility findings on the following points: (i) the production of the passport three days after the hearing; (ii) her father's application for her birth certificate; (iii) the rejection of the photos and letters from her brother; (iv) the identity of the person who helped her to escape.
[27] The applicant says that she had requested an Uvwie-French interpreter and that the lack of an interpreter created an awkward situation for herself and for counsel. She submits that because the Board failed to find an interpreter, she was denied a fair hearing. Furthermore, she argues that section 133 of the Constitution Act, 1867 gives counsel the right to use English or French in any court of Canada.
[28] The applicant says she had asked that the transcripts of the first hearing be excluded from her de novo hearing. She claims that she was not told about this decision nor the reasons for it, and that this was unfair. She also asserts that the panel's decision is based on certain points that were specifically dealt with in Madam Justice Hansen's judgment.
Standard of review
[29] It is for the Refugee Division, as a specialized tribunal, to assess the credibility of the witnesses and the evidence before it. Unless the applicant is able to show that the inferences drawn by the panel could not reasonably have been drawn, there is no basis for intervention by this Court: Kabengele v. M.C.I., [2000] F.C.J. No. 1866 (QL); Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732 (QL); (1993), 160 N.R. 315.
Analysis
Credibility
[30] The applicant submits that the IRB based its findings on the speed with which she produced her passport on speculation, without asking her any questions. She maintains that she is entitled to file additional documents before the panel makes its final determination: Sorogin v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 630 (QL); (1999), 163 F.T.R. 116. The IRB said that receiving the passport "raises doubts about other testimony she gave about not being able to obtain additional information in support of her claim." The applicant claims the IRB drew an unreasonable inference, because she had provided a document the IRB had requested at the first hearing. According to her affidavit, after the hearing, she asked a friend who was coming to Canada to bring her passport with him, and he did so a few days later.
[31] The respondent points out that on the day of the hearing, the applicant said she had tried unsuccessfully to get the passport. Despite this testimony, she obtained and delivered the passport within three days of the hearing.
[32] In my view, the IRB admitted and considered the passport, because the decision indicates that: "counsel was told by the panel that if, in the interim prior to a decision being made in this case, documentation was received, the panel would of course review it." Ultimately, the IRB accepted the passport as evidence of the applicant's nationality. However, the panel found that under the circumstances, the production of the passport three days after the hearing indicated that the applicant was not credible when she testified that she had trouble getting documentary evidence. Between her two hearings were two years in which she could have submitted documents. Under the circumstances, I do not find that the IRB's findings were patently unreasonable.
[33] The applicant also claims the IRB drew baseless conclusions by finding that she had not properly explained why her father would have declared under oath that he was a Christian if, according to her, he was not. In addition, the IRB found her not credible when she said her brother had taken care of her father's declaration, whereas it was under the father's oath. In the applicant's opinion, such contradictions are not central to the claim and therefore do not justify its rejection. In support of her argument, she referred to Mahathmasseelan v. Canada (Minister of Employment and Immigration) (1991), 15 Imm. L.R. (2d) 29 (F.C.A.).
[34] At the hearing, the applicant testified that all she knew was that her brother had worked out the details of the passport application. The IRB found it implausible that her brother could have sworn an oath on the father's behalf. In my view, this implausibility finding is not patently unreasonable. I note that in Mahathmasseelan, supra, the IRB had not found that there was a total lack of credibility. However, in this case, the IRB made a number of adverse credibility and implausibility findings, and identified inconsistencies in the applicant's testimony. Considering all of the evidence, it was open to the IRB to reasonably conclude that the applicant was not credible on this point, and consequently it did not make a reviewable error.
[35] The applicant submits that the IRB erred in finding that there could be various explanations for the photos from her brother, without asking her any questions orally or in writing. She had submitted the letters and photos after the hearing.
[36] In Hamid v. Canada, [1995] F.C.J. No. 1293 (QL), Mr. Justice Nadon held that once the IRB comes to the conclusion that an applicant is not credible, it is not required to give any weight to the documents unless the applicant can show that they are credible. In the case at bar, the IRB found that the documents "are not sufficient to counterbalance our credibility findings on the claimant's oral testimony." In light of Hamid, supra, I am of the view that the IRB did not err in rejecting the applicant's additional documentation.
[37] The applicant argues that the IRB erred in saying she had not mentioned in her testimony that her friend Olu had helped her to escape from her home in November 1999. She is right. The IRB says in its decision: "there is no mention in her PIF of her brother helping her, or in her testimony of the friend of Emmanuel, called Olu." The transcript of the hearing shows that she testified as follows: "yeah, because my brother came with a car to pick me up and we left for Lagos to meet Olu who helped me to get out of the country." However, the IRB correctly points out that her brother was not mentioned in her PIF, which reads as follows: "Finally I left him, at the end of November 1999, with the help of one of Emmanuel's friend called Olu."
[38] The applicant contends that this is a reviewable error. In Abarajithan v. M.E.I., [1992] F.C.J. No. 54 (QL), the Court held at paragraph 1:
...Not every such misunderstanding of evidence by a tribunal is fatal to its decision, but in this case the Refugee Division itself made this erroneous view of the evidence the centrepiece of its reasoning. The decision cannot, therefore, stand.
[39] In my view, this error by the IRB is inconsequential. There were several other examples of inconsistencies in the applicant's testimony to justify the panel's finding.
Language rights
[40] The applicant says she requested an Uvwie-French interpreter, but the IRB failed to find one. She submits that this case raises issues of constitutional law.
[41] The IRB sets out the relevant facts at pages 1 and 2 of its decision:
...Although the claimant speaks and understands English, current counsel, Me Lebrun, had hoped to have an interpreter capable of speaking Uvwie and French, which was counsel's first language. The claimant's first hearing was conducted in English, and there is no indication, in the transcripts or in the decision of the Federal Court, that the claimant's lack of comprehension was an issue. The claimant had done her elementary and secondary school education in English, and had indicated in her PIF, when it was originally submitted, that she was able to read and fully understand the contents of her PIF as written in English. The claimant did not state that she had trouble understanding the questions asked to her in English or expressing herself in English during the hearing.
To accommodate counsel, the panel heard his oral submissions on the claimant's behalf in French. Counsel was given time to obtain the claimant's consent to give his submissions in French without translation. Prior to his submissions, the claimant confirmed that she waived her right to translation of his submissions.
After two-and-a-half hours of testimony, counsel requested a conference with the panel to request that he be allowed to withdraw from the file, given his lack of skill in English. After counsel discussed the situation with the claimant, she requested him to remain as her counsel. After discussion with the panel, it was ruled that since the claimant herself had not expressed any difficulties with proceeding, it was the panel's intention to continue testimony, and that an adjournment would not be granted, but that counsel would be able to make his submissions on behalf of the claimant in French. Counsel agreed to continue with the claim.
[42] Section 19 of the Constitution Act, 1982 provides as follows:
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Procédures devant les tribunaux établis par le Parlement
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| 19. (1) Either English or French may be used by any person in, or in any pleading in or process issuing from, any court established by Parliament.
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19. (1) Chacun a le droit d'employer le français ou l'anglais dans toutes les affaires dont sont saisis les tribunaux établis par le Parlement et dans tous les actes de procédure qui en découlent.
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[43] The applicant also points out that subsection 17(1) of the Convention Refugee Determination Division Rules provides as follows:
| The Refugee Division shall provide an interpreter to assist a party or witness where the party or witness advises the Refugee Division in writing at least 15 days before the date set for a conference or hearing, as the case may be, that the party or witness does not understand or speak the language in which the conference or hearing is to be conducted, or is hearing impaired.
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La section du statut fournit les services d'un interprète à la partie ou au témoin qui l'avise par écrit, au moins 15 jours avant la date fixée pour la conférence ou l'audience selon le cas, qu'il est incapable de comprendre ou de parler la langue dans laquelle se déroulera la conférence ou de l'audience ou qu'il a une déficience auditive.
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[44] The applicant claims that once the choice is made, the Board has to ensure that she understands the language in which the proceedings are being conducted. The applicant asserts that the breach of her rights seriously undermined her credibility and the potential assistance of counsel in this case.
[45] The respondent states that the applicant's arguments confuse the right to an interpreter, guaranteed by section 14 of the Charter, with the language rights set out in section 19 of the Constitution Act, 1982 and in Part III of the Official Languages Act (OLA).
[46] Section 14 of the Charter reads as follows:
| 14. A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter.
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14. La partie ou le témoin qui ne peuvent suivre les procédures, soit parce qu'ils ne comprennent pas ou ne parlent pas la langue employée, soit parce qu'ils sont atteints de surdité, ont droit à l'assistance d'un interprète.
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[47] In R. v. Beaulac, [1999] 1 S.C.R. 768 at page 800, the Supreme Court dealt with this distinction between the right to an interpreter and language rights:
The right to full answer and defence is linked with linguistic abilities only in the sense that the accused must be able to understand and must be understood at his trial. But this is already guaranteed by s. 14 of the Charter.... Language rights have a totally distinct origin and role. They are meant to protect official language minorities in this country and to insure the equality of status of French and English....
According to the respondent, the applicant's arguments in no way establish that her right to an interpreter or her language rights (or those of counsel) were breached before the Refugee Division.
[48] The respondent submits that the leading case on section 14 of the Charter is R. v. Tran, [1994] 2 S.C.R. 951. The right to an interpreter is held not only by accused persons, but also by parties in civil actions and administrative proceedings and by witnesses. The respondent argues that the right to an interpreter is therefore not held by counsel involved in the proceedings in question. At page 979 of Tran, the Court wrote, "it must be clear that the accused was actually in need of interpreter assistance..., that he or she did not understand or speak the language being used in court."
[49] The respondent points out that in Bykov v. Canada (M.C.I.), [1999] F.C.J. No. 1459 (T.D.) (QL), the IRB had been unable to provide a Tchouvache interpreter, but had supplied a Russian interpreter. Mr. Bykov understood Russian and had had ten years of Russian education. Mr. Justice Teitelbaum held that the applicant understood Russian well enough for the purposes of the hearing and that the IRB was not obligated "to provide an interpreter with the exact dialect of the applicant." (paragraph 22)
[50] The respondent argues that the applicant understands and expresses herself in English, and that she did her elementary and secondary school education in Nigeria in English, which is in fact the official language of that country. The respondent also says that neither the applicant nor counsel objected to the hearings being conducted in English. Furthermore, the respondent says the applicant did not establish that there was an actual need, so the fact that there was no Uvwie-English interpreter does not provide sufficient grounds to set aside the Refugee Division's decision.
[51] With respect to language rights, the respondent points out that the rights under section 19 of the Charter are reiterated in the OLA, which provides that any person may use either English or French in, or in any pleading in or process issuing from, any federal court [see extract from the Act, attached as Schedule "A"]. The respondent also points out that the IRB is a "federal court" within the meaning of subsection 3(2) of the OLA, and that the rights contained in Part III are available to individuals whether they choose to exercise them or not.
[52] The respondent notes that the hearing was conducted in English, and that pursuant to section 133 of the Constitution Act, 1867, subsection 19(1) of the Charter and section 14 of the OLA, counsel for the applicant chose to make his oral submissions in French. The respondent asserts that under section 15 of the OLA, the applicant could have requested simultaneous interpretation from French into English for this part of the hearing. The respondent notes that no such request was made, because the Refugee Division said: "If you say, well, I would prefer to hear it in English, then we may have to get a French/English interpreter in here for the purposes of submissions."
[53] In addition, the respondent stresses that the applicant could also have chosen to proceed in French and could have requested interpretation from French into English. But whatever the case, the applicant must assert her right before the proceedings are conducted so that the panel can make the necessary arrangements. In any event, the applicant clearly chose not to exercise her right to interpretation from French into English.
[54] I agree with the respondent's submissions. In my view, the applicant suffered no prejudice because of the fact that English was used at the hearing. The adverse credibility findings are due not to language, but to the content and form of the applicant's testimony. The Board members emphasized that if the applicant did not understand the questions, she should ask for clarification. I am satisfied that the requirements of section 14 of the Charter were met.
[55] Furthermore, I am satisfied that the language services guaranteed by the OLA and the Constitution Act, 1982 were waived by counsel and his client. Accordingly, I reject the applicant's arguments about language rights.
Transcript of the first hearing
[56] The applicant says that she had asked for the transcripts of the first hearing to be excluded from her de novo hearing, but that at the hearing, a conference was held in her absence to discuss the possibility of including them. She claims that she was not told about this decision nor the reasons for it, and that this is unfair. She also asserts that the panel's decision is based on certain points that were specifically dealt with in Madam Justice Hansen's judgment.
[57] The respondent submits that the Federal Court has already ruled on the issue of using the transcript of the first hearing of a person's refugee claim when the resulting decision is quashed by the Federal Court. In Diamanama v. M.C.I., [1996] F.C.J. No. 121 (QL), Madam Justice Reed stated the following at paragraph 10:
With respect to the wording of the order, I do not think it appropriate to word it in a way which would limit the Board that rehears the application.... The second panel can, of course, use the transcript of the first hearing for whatever purposes it wishes but no order, from me, conditioning that use is either required or appropriate.
[58] The respondent adds that the judgment in Kabengele, supra, confirms that the IRB is justified in consulting the transcript of the initial hearing when it has to check the veracity of the applicant's account.
[59] The respondent maintains that the IRB's findings are not based on the findings of the first panel. The respondent says that according to the judgment of Madam Justice Hansen, the adverse credibility findings made by the first panel had to do with the length of the applicant's stay in Lagos, the plausibility of her refusal to participate in an official marriage ceremony, her inconsistency over her spouse's age, the details of the murder of her friend Emmanuel, the circumstances under which her passport was obtained, and the fact that it was her father who signed her birth certificate application. In the case at bar, the IRB based its decision on the numerous inconsistencies already set out at paragraph 25 of these reasons. The respondent argues that in any case, the Refugee Division was free to make adverse credibility findings based on the same unbelievable parts of the applicant's account if she contradicted herself again over those parts of her claim.
[60] I find that according to the case law, the IRB is entitled to use the transcripts of the first hearing in making its decision. Therefore, the applicant was not denied procedural fairness under the circumstances. With respect to the notion of res judicata raised by the applicant in relation to the credibility issues, I am essentially in agreement with the respondent's arguments. I find that the credibility issues examined by Madam Justice Hansen are different from the points raised by the IRB, except for the issue of the father's signature on the applicant's birth certificate application. In any event, the IRB was entitled to make implausibility findings under the circumstances.
Conclusion
[61] The Court being satisfied that the IRB made no reviewable error, this application for judicial review will be dismissed.
[62] The parties have not proposed the certification of a serious question of general importance as contemplated by subsection 74(d) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27. I do not propose to certify a serious question of general importance.
ORDER
THE COURT ORDERS:
1. The application for judicial review is dismissed.
2. There is no serious question of general importance to be certified.
"Edmond P. Blanchard"
Judge
Certified true translation
Peter Douglas
SCHEDULE "A"
Official Languages Act
| DEFINITIONS
3(1) Definitions
3(2) Definition of "federal court"
(2) In this section and in Parts II and III, "federal court" means any court, tribunal or other body that carries out adjudicative functions and is established by or pursuant to an Act of Parliament.
R.S., 1985, c. 31 (4th Supp.), s. 3; 1993, c. 28, s. 78.
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DÉFINITIONS
3(2) Définition de « tribunal »
(2) Pour l'application du présent article et des parties II et III, est un tribunal fédéral tout organisme créé sous le régime d'une loi fédérale pour rendre la justice.
L.R. (1985), ch. 31 (4e suppl.), art. 3; 1993, ch. 28, art. 78.
[...]
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| PART III
ADMINISTRATION OF JUSTICE
14 Official languages of federal courts
14. English and French are the official languages of the federal courts, and either of those languages may be used by any person in, or in any pleading in or process issuing from, any federal court.
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PARTIE III
ADMINISTRATION DE LA JUSTICE
14 Langues officielles des tribunaux fédéraux
14. Le français et l'anglais sont les langues officielles des tribunaux fédéraux; chacun a le droit d'employer l'une ou l'autre dans toutes les affaires dont ils sont saisis et dans les actes de procédure qui en découlent.
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| 15(1) Hearing of witnesses in official language of choice
15. (1) Every federal court has, in any proceedings before it, the duty to ensure that any person giving evidence before it may be heard in the official language of his choice, and that in being so heard the person will not be placed at a disadvantage by not being heard in the other official language.
15(2) Duty to provide simultaneous interpretation
(2) Every federal court has, in any proceedings conducted before it, the duty to ensure that, at the request of any party to the proceedings, facilities are made available for the simultaneous interpretation of the proceedings, including the evidence given and taken, from one official language into the other.
15(3) Federal court may provide simultaneous interpretation
(3) A federal court may, in any proceedings conducted before it, cause facilities to be made available for the simultaneous interpretation of the proceedings, including evidence given and taken, from one official language into the other where it considers the proceedings to be of general public interest or importance or where it otherwise considers it desirable to do so for members of the public in attendance at the proceedings.
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15(1) Droits des témoins
15. (1) Il incombe aux tribunaux fédéraux de veiller à ce que tout témoin qui comparaît devant eux puisse être entendu dans la langue officielle de son choix sans subir de préjudice du fait qu'il ne s'exprime pas dans l'autre langue officielle.
15(2) Services d'interprétation : obligation
(2) Il leur incombe également de veiller, sur demande d'une partie, à ce que soient offerts, notamment pour l'audition des témoins, des services d'interprétation simultanée d'une langue officielle à l'autre langue.
15(3) Services d'interprétation : faculté
(3) Ils peuvent faire aussi ordonner que soient offerts, notamment pour l'audition des témoins, des services d'interprétation simultanée d'une langue officielle à l'autre s'ils estiment que l'affaire présente de l'intérêt ou de l'importance pour le public ou qu'il est souhaitable de le faire pour l'auditoire.
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| 16(1) Duty to ensure understanding without an interpreter
16. (1) Every federal court, other than the Supreme Court of Canada, has the duty to ensure that(a) if English is the language chosen by the parties for proceedings conducted before it in any particular case, every judge or other officer who hears those proceedings is able to understand English without the assistance of an interpreter;
(b) if French is the language chosen by the parties for proceedings conducted before it in any particular case, every judge or other officer who hears those proceedings is able to understand French without the assistance of an interpreter; and
(c) if both English and French are the languages chosen by the parties for proceedings conducted before it in any particular case, every judge or other officer who hears those proceedings is able to understand both languages without the assistance of an interpreter.
16(2) Adjudicative functions
(2) For greater certainty, subsection (1) applies to a federal court only in relation to its adjudicative functions.
16(3) Limitation
(3) No federal court, other than the Federal Court of Canada or the Tax Court of Canada, is required to comply with subsection (1) until five years after that subsection comes into force.
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16(1) Obligation relative à la compréhension des langues officielles
16. (1) Il incombe aux tribunaux fédéraux autres que la Cour suprême du Canada de veiller à ce que celui qui entend l'affaire :
a) comprenne l'anglais sans l'aide d'un interprète lorsque les parties ont opté pour que l'affaire ait lieu en anglais;
b) comprenne le français sans l'aide d'un interprète lorsque les parties ont opté pour que l'affaire ait lieu en français;
c) comprenne l'anglais et le français sans l'aide d'un interprète lorsque les parties ont opté pour que l'affaire ait lieu dans les deux langues.
16(2) Fonctions judiciaires
(2) Il demeure entendu que le paragraphe (1) ne s'applique aux tribunaux fédéraux que dans le cadre de leurs fonctions judiciaires.
16(3) Mise en oeuvre progressive
(3) Les tribunaux fédéraux autres que la Cour fédérale et la Cour canadienne de l'impôt disposent toutefois, pour se conformer au paragraphe (1), d'un délai de cinq ans après son entrée en vigueur.
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| 17(1) Authority to make implementing rules
17. (1) The Governor in Council may make such rules governing the procedure in proceedings before any federal court, other than the Supreme Court of Canada, the Federal Court or the Tax Court of Canada, including rules respecting the giving of notice, as the Governor in Council deems necessary to enable that federal court to comply with sections 15 and 16 in the exercise of any of its powers or duties.
17(2) Supreme Court, Federal Court and Tax Court
(2) Subject to the approval of the Governor in Council, the Supreme Court of Canada, the Federal Court and the Tax Court of Canada may make such rules governing the procedure in their own proceedings, including rules respecting the giving of notice, as they deem necessary to enable themselves to comply with sections 15 and 16 in the exercise of any of their powers or duties.
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17(1) Pouvoir d'établir des règles de procédure
17. (1) Le gouverneur en conseil peut établir, sauf pour la Cour suprême du Canada, la Cour fédérale et la Cour canadienne de l'impôt, les règles de procédure judiciaire, y compris en matière de notification, qu'il estime nécessaires pour permettre aux tribunaux fédéraux de se conformer aux articles 15 et 16.
17(2) Cour suprême, Cour fédérale, Cour canadienne de l'impôt
(2) La Cour suprême du Canada, la Cour fédérale et la Cour canadienne de l'impôt peuvent exercer, pour leur propre fonctionnement, le pouvoir visé au paragraphe (1), sous réserve de l'agrément du gouverneur en conseil.
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| 18 Language of civil proceedings where Her Majesty is a party
18. Where Her Majesty in right of Canada or a federal institution is a party to civil proceedings before a federal court,
(a) Her Majesty or the institution concerned shall use, in any oral or written pleadings in the proceedings, the official language chosen by the other parties unless it is established by Her Majesty or the institution that reasonable notice of the language chosen has not been given; and
(b) if the other parties fail to choose or agree on the official language to be used in those pleadings, Her Majesty or the institution concerned shall use such official language as is reasonable, having regard to the circumstances.
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18 Cas où Sa Majesté est partie à l'affaire
18. Dans une affaire civile à laquelle elle est partie devant un tribunal fédéral, Sa Majesté du chef du Canada ou une institution fédérale utilise, pour les plaidoiries ou les actes de la procédure, la langue officielle choisie par les autres parties à moins qu'elle n'établisse le caractère abusif du délai de l'avis l'informant de ce choix. Faute de choix ou d'accord entre les autres parties, elle utilise la langue officielle la plus justifiée dans les circonstances.
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| 19(1) Bilingual forms
19. (1) The pre-printed portion of any form that is used in proceedings before a federal court and is required to be served by any federal institution that is a party to the proceedings on any other party shall be in both official languages.
19(2) Particular details
(2) The particular details that are added to a form referred to in subsection (1) may be set out in either official language but, where the details are set out in only one official language, it shall be clearly indicated on the form that a translation of the details into the other official language may be obtained, and, if a request for a translation is made, a translation shall be made available forthwith by the party that served the form.
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19(1) Actes judiciaires
19. (1) L'imprimé des actes judiciaires des tribunaux fédéraux que doivent signifier les institutions fédérales est établi dans les deux langues officielles.
19(2) Compléments d'information
(2) Ces actes peuvent être remplis dans une seule des langues officielles pourvu qu'il y soit clairement indiqué que la traduction peut être obtenue sur demande; celle-ci doit dès lors être établie sans délai par l'auteur de la signification.
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| 20(1) Decisions, orders and judgments that must be made available simultaneously
20. (1) Any final decision, order or judgment, including any reasons given therefor, issued by any federal court shall be made available simultaneously in both official languages where
(a) the decision, order or judgment determines a question of law of general public interest or importance; or
(b) the proceedings leading to its issuance were conducted in whole or in part in both official languages.
20(2) Other decisions, orders and judgments
(2) Where
(a) any final decision, order or judgment issued by a federal court is not required by subsection (1) to be made available simultaneously in both official languages, or
(b) the decision, order or judgment is required by paragraph (1)(a) to be made available simultaneously in both official languages but the court is of the opinion that to make the decision, order or judgment, including any reasons given therefor, available simultaneously in both official languages would occasion a delay prejudicial to the public interest or resulting in injustice or hardship to any party to the proceedings leading to its issuance,
the decision, order or judgment, including any reasons given therefor, shall be issued in the first instance in one of the official languages and thereafter, at the earliest possible time, in the other official language, each version to be effective from the time the first version is effective.
20(3) Oral rendition of decisions not affected
(3) Nothing in subsection (1) or (2) shall be construed as prohibiting the oral rendition or delivery, in only one of the official languages, of any decision, order or judgment or any reasons given therefor.
20(4) Decisions not invalidated
(4) No decision, order or judgment issued by a federal court is invalid by reason only that it was not made or issued in both official languages.
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20(1) Décisions de justice importantes
20. (1) Les décisions définitives - exposé des motifs compris - des tribunaux fédéraux sont simultanément mises à la disposition du public dans les deux langues officielles :
a) si le point de droit en litige présente de l'intérêt ou de l'importance pour celui-ci;
b) lorsque les débats se sont déroulés, en tout ou en partie, dans les deux langues officielles, ou que les actes de procédure ont été, en tout ou en partie, rédigés dans les deux langues officielles.
20(2) Autres décisions
(2) Dans les cas non visés par le paragraphe (1) ou si le tribunal estime que l'établissement au titre de l'alinéa (1)a) d'une version bilingue entraînerait un retard qui serait préjudiciable à l'intérêt public ou qui causerait une injustice ou un inconvénient grave à une des parties au litige, la décision - exposé des motifs compris - est rendue d'abord dans l'une des langues officielles, puis dans les meilleurs délais dans l'autre langue officielle. Elle est exécutoire à la date de prise d'effet de la première version.
20(3) Décisions orales
(3) Les paragraphes (1) et (2) n'ont pas pour effet d'interdire le prononcé, dans une seule langue officielle, d'une décision de justice ou de l'exposé des motifs.
20(4) Précision
(4) Les décisions de justice rendues dans une seule des langues officielles ne sont pas invalides pour autant.
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FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2948-02
STYLE OF CAUSE: Queen Taire v. Minister of Citizenship and Immigration
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: March 21, 2003
REASONS FOR ORDER: Blanchard J.
DATE OF REASONS: July 15, 2003
APPEARANCES:
Michel Le Brun FOR THE APPLICANT
Martine Valois FOR THE RESPONDENT
SOLICITORS OF RECORD:
Michel Lebrun FOR THE APPLICANT
Montreal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Department of Justice
Montreal, Quebec
H2Z 1X4
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