Date: 20051013
Docket: IMM-1705-05
Citation: 2005 FC 1400
Ottawa, Ontario, October 13,
2005
PRESENT: MADAM JUSTICE TREMBLAY-LAMER
BETWEEN:
JANETTE WILSON
MALLETTE
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the “Act”), for judicial review
of a decision of the Immigration Appeal Division of the Immigration and Refugee
Board (the “Board”), dated January 21, 2005, wherein the Board cancelled the
applicant’s stay of execution of a removal order, dismissed the applicant’s
appeal and maintained the deportation order which was issued against the
applicant on January 31, 2001.
[2]
The applicant arrived
as a visitor in Canada in 1968. She married while in Canada and was sponsored by her husband. She was deported in 1976 because she
had committed theft and fraud. She came back to Canada in 1977 as an undocumented visitor. She was granted amnesty in 1986
and obtained permanent residence in Canada on January 8,
1989.
[3]
The
applicant was ordered deported again on January 31, 2001 because she had been
convicted of possession of narcotics for purposes of trafficking. However, on
July 25, 2002, the Board granted the applicant a stay of execution for five
years on ten express conditions. Among other things, the conditions required
the applicant to:
- report monthly to the Ottawa
Canada Immigration Centre;
- report any change of address;
- report any criminal charges and
convictions;
- continue counselling with the
Elizabeth Fry Society once a week;
- continue attending drug
rehabilitation programs on a regular basis;
- refrain from the illegal use or
sale of drugs; and
- keep the peace and be of good
behaviour.
[4]
In its decision, the
Board advised the applicant that an oral review would take place on or about
July 10, 2003 and that the Board would review the case on or about July 10,
2007 or at such earlier date as it considered necessary.
[5]
In February 2003, the
Minister’s representative requested an early review of the stay of execution
alleging several breaches of the conditions imposed. The breaches included
further criminal offences, the use of illegal drugs, sale of drugs including
problems with keeping the peace and good behaviour.
[6]
As a result, a hearing
was held in May 2003. At the hearing, the applicant admitted to breaching
several of the conditions imposed on her. However, the Board concluded that
cancelling the stay of execution would have been too harsh a solution at that
time. Instead, the Board did not cancel the stay and modified the initial
conditions imposed on the applicant.
[7]
In its May 29, 2003
decision, the Board advised the applicant that an “oral interim
reconsideration” of the case would take place on or about May 16, 2004 and that
a “final reconsideration” would take place on or about July 10, 2007 or at such
other date as it determines.
[8]
On August 9, 2004, the
Board sent the applicant a Notice of Hearing Date. The Notice indicated that the
purpose of the hearing was to conduct an oral review of the Order of the Board
dated May 29, 2003.
[9]
The applicant arrived
at the January 21, 2005 hearing without a lawyer and testified on her own
behalf. In a written decision dated February 18, 2005, the Board cancelled the
order staying the applicant’s removal and directed that the applicant be
removed from Canada as soon as reasonably possible.
[10]
The Board found that
since the decision of May 29, 2003, the applicant had had problems with the
law, including involvement in criminal activity. She was charged on May 25,
2003 for shoplifting, although that charge was withdrawn. She was charged on
November 5, 2003 and on February 18, 2004 of prostitution and convicted of
those charges. She also had problems with reporting requirements and the
illegal use of drugs.
[11]
The Board was not
convinced that the community help she was receiving, including attending
community groups, would be of any assistance. She had been in breach of
conditions imposed on her after both previous decisions of the Board. Although
she had moved into a senior citizens building and had a boyfriend, the Board
member found nothing in the evidence which indicated she would maintain and
respect the conditions of the initial decision.
[12]
As a result, the Board
cancelled the stay of execution of a removal order, dismissed the appeal, and
maintained the deportation order issued against the applicant on January 31,
2001.
[13]
Should the Board have
adjourned the hearing when the applicant indicated she did not have counsel?
[14]
The right to counsel
is not absolute. The case law in immigration matters indicates that a decision
is invalid should the absence of counsel deprive the applicant of his or her
right to a fair hearing. In Mervilus v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1460 (QL), 2004 FC
1206, Harrington J. reviewed the law from this Court and the Federal Court of
Appeal and summarized as follows at paragraph 25:
The following principles can
therefore be drawn from the case law: although the right to counsel is not
absolute in an administrative proceeding, refusing an individual the
possibility to retain counsel by not allowing a postponement is reviewable if
the following factors are in play: the case is complex, the consequences of the
decision are serious, the individual does not have the resources - whether in
terms of intellect or legal knowledge - to properly represent his interests.
[15]
I find all of the
factors to be present in this case. It is clear that the applicant was not
capable of representing herself.
[16]
While she was formally
notified twice that the Board intended to review the applicant’s compliance
with the conditions attached to the stay of execution of her deportation order,
it is evident that she understood the purpose of the hearing to be a yearly
review of her progress in recovery, similar to her monthly stay interviews. It
is for this reason, she says, that she did not bring a lawyer to represent her.
[17]
In her affidavit, the
applicant states that about 10 minutes into the hearing, she began to feel
nervous and confused. She did not understand several of the questions being
asked of her and was surprised at being asked about her past convictions and
past immigration hearings.
[18]
Approximately 27 minutes
into the hearing, the following exchange took place between Ms. Julie Ryan,
counsel on behalf of the Minister, and the applicant:
Ms. Ryan: On page
5 we have the Certificate of Conviction for that charge. Did you get this, the
Record? It was sent to your old address.
Applicant: No I did not.
If I had known this, I would have brought a lawyer.
[19]
Moreover, a review of
the transcript indicates that she had trouble with her memory, did not
understand basic questions asked of her and that she broke down on a number of
occasions. She was not able, in any way, to argue her case. The consequences
of the decision are very serious. If she is deported, the applicant, after
having lived in Canada for the better part of almost 20 years,
will be deported to Scotland where she has no relatives that she knows
of, at the age of 61 years old. This will also interrupt any progress she has
made with her drug addiction and general rehabilitation.
[20]
The Board’s failure to
provide an adjournment in order that the applicant might retain counsel deprived
her of the right to a fair hearing.
[21]
The Board also erred
when it denied the applicant the opportunity to present evidence. Having
appeared without counsel, and with a number of letters evidencing her progress
and rehabilitation with regard to her drug addiction and problems with the sex
trade, the Board should not have refused the applicant from introducing such
relevant evidence necessary to demonstrate that her situation was, in fact,
changing. Whether or not this would have changed the outcome of the Board’s
decision is not for this Court to determine, but it is clear that these letters
could have brought a different outcome.
[22]
Thus, the decision of
the Board cancelling
the applicant’s stay of execution of a removal order, dismissing the
applicant’s appeal and maintaining the deportation order which was issued
against the applicant on January 31, 2001 is set aside and the matter is
referred back for redetermination by a newly constituted panel. No questions
were submitted for certification.
ORDER
THIS COURT ORDERS that
[1] The application for judicial review is allowed.
[2] The matter is referred back for redetermination by a newly
constituted panel.
“Danièle
Tremblay-Lamer”
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