Pel v. Canada (Minister of Citizenship and Immigration), 2005 FC 425

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2005 FC 425

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Date: 20050331

Docket: IMM-6074-04

Citation: 2005 FC 425

BETWEEN:

Sopheap PEL

Applicant

- and -

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

REASONS FOR ORDER

PINARD J.

[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board) dated June 8, 2004, that the applicant is not a Convention refugee under section 96 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, (the Act) or a person in need of protection under section 97 of the Act.

[2] Sopheap Pel (the applicant) is a citizen of Cambodia who claims he has a fear of persecution for reasons of political opinion.

[3] The applicant is criticizing the Board member, Donal Archambault, for having refused to recuse himself in light of a complaint lodged against Mr. Archambault in another case by the applicant's counsel, Mr. Cantin. Although Mr. Cantin represented the applicant in these two other cases before Board member Archambault, he no longer represented him before me, counsel for the applicant now being Éveline Fiset.

[4] It is important here to reproduce the March 29, 2004 letter, describing the complaint in question, written by Mr. Cantin to the Immigration and Refugee Board:

[translation]

Dear Sir:

On March 25, 2004, we proceeded with the above-mentioned case before the IRB, before Board member Donald Archambault.

To my complete astonishment, the Board member had already begun preparing his decision when I started questioning my client at about 10 a.m., after my client was examined by the RCO, Christian Jadue. When I completed the examination at around 10:30 a.m., the Board member told us that we were adjourning for 30 minutes, after which he would listen to our arguments and render his decision immediately.

. . .

Since this was the first time I had a case before this Board member, I was completely surprised and angry about this course of action, as I could see that the Board member was not taking notes on my client's testimony, but, rather, was clearly drafting his decision. When the decision was given orally at the hearing, as a reason for refusal, the Board member alleged that my client had made a late claim after her arrival in Canada, even though she had testified that she had arrived on October 13, 2003, in Toronto, on October 14, in Montreal, and had to rest a few days and then ask her father's friend for some information. She also said that on October 16 she had called Capital Immigrant consultant for an appointment and on October 21 had gone to Immigration offices to obtain forms.

The Board member was too busy writing his decision and did not hear or listen to my client's testimony. He even said she had not made her claim until November 5, 2003, this being the date in the Immigration officer's notes taken at a meeting with my client with said officer at 1010 St Antoine Street.

I find this course of action to be unacceptable and have no intention of ever pleading another case before this Board member.

I feel that this course of action brought the administration of justice into disrepute and infringed my client's rights.

Under the circumstances, would you please inform the persons concerned not to schedule any more hearings before Board member Donald Archambault.

I trust this is in order.

Yours truly,

JEAN CANTIN, Solicitor

[5] A few weeks later, at the beginning of the hearing in the applicant's case, Board member Archambault said the following to justify his refusal to recuse himself:

[translation]

BY THE PRESIDING MEMBER

For the benefit of the panel, we had a preparatory meeting. Mr. Cantin told me about his . . . how should I put it, his reticence about . . . about appearing before me because . . . there was . . . Mr. Cantin drafted a letter contesting my course of action at the last hearing.

And I told Mr. Cantin that I will . . . I had read his letter . . . his letter in question, that I had met with the Board regarding this matter, and I assured Mr. Cantin that I was at his complete disposal and of the fact that a letter concerning me would not influence me in this case today, because it's part of the job.

I don't think we single out people in life, we . . . we do our jobs. So, nevertheless, I told him the case had been assigned to me and that . . . I had no reason to withdraw from the case, but I can assure both him and the claimant that I am at their complete disposal and that I am not biased in this case.

[6] In my view, it was insufficient for the Board member to tell the applicant he was at his disposal and that he was not biased in the case. The Board member, whose appearance of bias constituted the basis of the request that he recuse himself, should have referred to the applicable test set out by the Supreme Court of Canada in [1978] 1 S.C.R. 369">Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369, at 394 and 395, where de Grandpré J. stated as follows:

. . . [T]he apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. . . . [T]hat test is "what would an informed person, viewing the matter realistically and practically-and having thought the matter through-conclude. Would he think that it is more likely than not that [the decision maker], whether consciously or unconsciously, would not decide fairly".

. . .

The grounds for this apprehension must, however, be substantial and I entirely agree with the Federal Court of Appeal which refused to accept the suggestion that the test be related to the "very or scrupulous conscience".

[7] In disposing of this matter, I refer to the statements of Denault J. in Grigorenko v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1224, at para. 8:

It goes without saying that the criteria for assessing the apprehension of bias apply not only to the judges who are asked to review the decision but also to the person himself or herself against whom the apprehension is alleged. In R. v. S. (R.D.), Cory J. wrote:

It is a well-established principle that all adjudicative tribunals and administrative bodies owe a duty of fairness to the parties who must appear before them. . . . In order to fulfil this duty the decision-maker must be and appear to be unbiased.

It is clear from this passage that despite the difficulty, more apparent than real, of placing himself or herself in the shoes of an informed and reasonable observer, that is nevertheless what a judge who is asked to recuse himself or herself by reason of appearance of bias must do. In fact, it is commonplace for a judge to recuse himself or herself not only because of a real or apprehended conflict with a party but also because of the appearance of an apprehension of bias. For a reference in the case law, we need only read the remarks of Mr. Justice Teitelbaum who was asked to recuse himself in Chief Victor Buffalo et al. v. R., F.C. T-2022-89, a decision dated December 8, 1997, affirmed by the Federal Court of Appeal on May 12, 1998 (A-893-97). After speaking to each of the grounds for recusal, he said (p.32):

I cannot conclude, after hearing the present application to disqualify myself, that my presiding over these two cases would be likely to raise in the mind of a reasonably informed person an apprehension of bias.

Lastly, I consider that if only the judge who is asked to review the decision of a tribunal who refused to apply the objective criterion of the apprehension of bias were required to do so, the party which was not satisfied with a judge's decision to recuse himself or herself after analysing the subjective test would be required to have the question of the reasonable apprehension of bias redetermined by another forum using the informed and reasonable observer test. This is certainly not what the Supreme Court intended in stating this test.

[8] In my view, the Board member's error in law in this case is sufficient to allow the application for judicial review without considering the applicant's other arguments. As a result, the application for judicial review is allowed, the member's decision set aside and the matter referred for rehearing by a differently constituted panel. The parties do not have any questions to be certified.

JUDGE

OTTAWA, ONTARIO

March 31, 2005

Certified true translation

Michael Palles

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET: IMM-6074-04

STYLE OF CAUSE : Sopheap PEL v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING: Montréal, Quebec

DATE OF HEARING: February 23, 2005

REASONS FOR ORDER BY: The Honourable Mr. Justice Pinard

DATED: March 31, 2005

APPEARANCES:

Éveline Fiset FOR THE APPLICANT

Isabelle Brochu FOR THE RESPONDENT

SOLICITORS OF RECORD:

Éveline Fiset FOR THE APPLICANT

Montréal, Quebec

John H. Sims, Q.C. FOR THE RESPONDENT

Deputy Attorney General of Canada