Date: 20001212
Docket: IMM-5727-00
IN THE MATTER OF the Immigration Act, R.S.C. 1985, Chap. I-2 and Amendments and Regulations (as amended) thereto; and
IN THE MATTER OF the Constitution Act, 1982, the Charter of Rights and Freedoms; and
IN THE MATTER OF the Canadian Bill of Rights, S.C. 1970, Appendix III, Chap.44; and
IN THE MATTER OF a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board dismissing the motion brought under Rule 28 of the Convention Refugee Determination Division Rules, 1993.
Between:
FRANÇOIS CHRISTIAN TEMAHAGALI,
SUZANNE NYIRAMANA,
SHARAMANIZ TEMAHAGALI and
FRANCK TEMAHAGALI,
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent
REASONS FOR ORDER
Muldoon, J.
[1] This application came on for hearing in Toronto, on Tuesday November 7, 2000, on an urgent basis. The applicants and the respondent were both represented by
counsel. The applicants' notice of motion asserts that they are pleading
| 1. for leave to apply for an order |
| a. prohibiting the resumption of the hearing by the Convention Refugee Determination Division of the Immigration and Refugee Board (the "tribunal"); |
| b. the rendering of a decision on the application of the Exclusion Clause, Article 1F(a) by the tribunal; and |
| c. the rendering of a decision on the applicants' claim for Convention refugee status by the tribunal, |
| until such time as the application for leave and for judicial review is finally disposed of; |
| 2. if leave be granted, for an order |
| a. prohibiting the resumption of the hearing by the tribunal scheduled from November 6, 2000 to November 10, 2000; |
| b. the rendering of a decision on the application of the Exclusion Clause, Article 1F(a) by the tribunal; and |
| c. the rendering of a decision on the applicants' claim for Convention refugee status by the tribunal, |
| until such time as the application for leave and for judicial review is finally disposed of; |
| The grounds for this motion are: |
| 3. That there are serious issues to be tried on the application under s. 82.1 of the Immigration Act and section 18.1 of the Federal Court Act, including a breach of the rules of natural justice by the tribunal and violations of section 7 of the Canadian Charter of Rights and Freedoms (the "Charter"); |
| 4. That in the interest of justice an opportunity should be given to the applicants to apply to the Court to seek a review and to quash the decision of Aida Graff and Suzanne Gilbert, members of the Immigration and Refugee Board (the "Tribunal") dated November 1, 2000 dismissing the applicants' motion for disclosures, production of document and witnesses by the respondent, for the removal of Ms. Barbara Stephens, as the Hearings officer for the Minister, for the issuance of summons of witness for Ms. Barbara Stephens and Mr. Joseph Rikhof, the minister's senior legal advisor, to testify before the Immigration and Refugee Board, and for providing absolute guarantee of confidentiality for the applicants' witnesses (the "Decision"). |
| 5. That in the interest of justice an opportunity should be given to the applicants to apply to the court to seek a review and to quash the decision of the tribunal. |
| 6. The threat of being excluded from making a claim for Convention refugee status under the Exclusion Clause, Article 1F(a), engages the applicants' life, liberty and security of the person interests under section 7 of the Charter. |
| 7. The tribunal, in dismissing the applicants' motion, has failed to afford the applicants both on a substantive level and in form with due process requirements of fundamental justice, and to ensure protection of the applicants' section 7 interests under the Charter. |
| 8. That irreparable harm would be caused to the applicants if the order of prohibition were not granted, in that the Exclusion of the applicants from making a claim for Convention refugee status and the resulting deportation of the applicants from Canada to Rwanda would put the applicants' lives, liberty and security of the person at risk. |
| 9. The public interest in protecting Canadian society is not a primary factor for consideration in the instant case. |
| 10. That the balance of convenience lies in favour of granting an order prohibiting the resumption of the hearing, the rendering of a decision on the application of the Exclusion Clause, Article 1F(a), and the rendering of a decision on the applicants' claim for Convention refugee status by the tribunal, pending the final disposition of the applicants' application for leave and for judicial review. |
| 11. SUCH FURTHER AND OTHER GROUNDS as counsel may advise and this Honourable Court may allow. |
[2] The applicants' claim to be refugees from Rwanda where recently genocidal massacres, and now vengeful passions run seemingly unabated. For such reasons, then, the C.R.D.D. must be extremely careful in selecting evidence and in performing its adjudicative determinations. Indeed this sort of cautious approach was acknowledged and recognized by the C.R.D.D.'s presiding member, during a September 2, 1999 hearing into the matter, wherein she was reported as saying:
PRESIDING MEMBER.
They also... and I think this investigation would lead us... would lead to that conclusion. So I would imagine that... I see that there is good faith here, and I am pleased to see that the Minister has not endangered... understands the seriousness of not going to the Rwandan government, because it may have ulterior motives, and that these safeguards have been taken. And I do agree that the privacy considerations in this particular case have to give way to the serious nature of allegations. But safeguards have to be put in place. And I think that those safeguards do exist. And I would indeed encourage the Minister not to go beyond that until we have this evidence before us. And also to share, as soon as possible, with counsel whatever information comes to pass. (Applicants' motion record, p. 141).
[3] Also emphasized and considered during the recent urgent hearing in this matter, was that provision of subsection 67 of the Act, which describes the C.R.D.D.'s powers, thus:
| (2) Powers - The Refugee Division, and each member thereof, has all the powers and authority of a commissioner appointed under Part I of the Inquiries Act and, without restricting the generality of the foregoing, may, for the purposes of a hearing, |
| (d) do any other thing necessary to provide a full and proper hearing. |
| (Emphasis not in original text) |
So, in this instance where it is proposed to require an investigator, a member of the R.C.M.Police to testify before the C.R.D.D. as to what he will have heard prospective respondent's witnesses say about the applicant's alleged genocidal misconduct years ago in Rwanda, what will it mean to provide a full and proper hearing?
[4] The C.R.D.D. is not obliged to exclude hearsay from the testimony it receives, as can be perceived in subsection 68(3) of the Act:
| 68.(3) Rules of evidence - The Refugee Division is not bound by any legal or technical rules of evidence and, in any proceedings before it, it may receive and base a decision on evidence adduced in the proceedings and considered credible or trustworthy in the circumstances of the case. |
As the presiding member noted, expelling a Rwandan - here a Hutu man married to a Tutsi woman - back into Rwanda makes one uneasy about the quality of "justice" which may be meted out to such a one, once back in Rwanda. This Court is in no way defending genocide or even lesser degrees of persecution, but this Court does defend justice even in the face of those who howl for "justice" against those who are merely accused, but not convicted, of crimes against humanity.
[5] The (male) applicant's counsel has worried aloud that there is a danger of her "client being framed" (applicants' motion record, p. 142). A full and proper hearing, by Canadian standards, might possibly leave adverse witnesses anonymous for their own security but would give the applicants' counsel much more information about the interviewed witnesses than has been offered here. Where were such prospective witnesses at material times? How were they situated, physically, geographically, socially, employment-wise or in any manner otherwise to enable them to provide trustworthy testimony? The applicants' counsel hardly needs to make a more reasonable request for information than is suggested above, in order to have the applicants provided with a full and proper hearing. Failure or refusal to provide a full and proper hearing could precipitate successful applications for judicial review, but that is a matter for the C.R.D.D. and the conduct of its important business. Justice is a fragile vessel and care ought to be taken not to fracture it.
[6] The weight of jurisprudence, despite the Court's immediately above stated cautionary observations, lies on the respondent's side of this debate. Useful to note in this regard is the index of cases found in the respondent's book of authorities, thus:
| Szczecka v. M.E.I. (1993) 170 N.R. 58 (F.C.A) |
| Ipsco Inc. v. Sollac, Aciers d'Usinor (F.C.A., May 25, 1999, A-311-99) |
| ICN Pharmaceuticals, Inc. v. Canada (Patented Medecine Prices Review Board) (1995), 65 C.P.R. (3d) 1 (F.C.T.D.) |
| Mugesera v. Canada (F.C.T.D., August 8, 1997, IMM-2750-97) |
| Boulianne v. Canada (R.C.M.P.) (F.C.T.D., March 10, 1995, T-432-95) |
| Novopharm Ltd. v. Aktiebolaget Astra (1996), 68 C.P.R. (3d) 117 (F.C.T.D.) |
| Canada (Canadian Human Rights Commission) v. Canada 3000 Airlines Ltd. (re Nijjar) (F.C.T.D., May 10, 1999, T-795-99) |
| Mohawk Council of Kahnawake v. Jacobs (F.C.T.D., May 30, 1996, T-77-96) |
[7] Virtually conclusive is the unanimous decision of the Court of Appeal in Zündel v. Citron [2000] 4 F.C. 225. The judgment was rendered by Mr. Justice Sexton and it included the following passages:
| ¶ 1 This is an appeal from an application for judicial review of two rulings made by the Canadian Human Rights Tribunal in the course of hearing a human rights complaint made against Mr. Zündel. In the first ruling (A-258-99), the Tribunal ruled that counsel for Mr. Zündel could not engage in a certain line of cross-examination. In the second ruling (A-269-99), the Tribunal refused to qualify a witness tendered by Mr. Zündel as an expert witness. The issue in these appeals is whether Mr. Zündel's applications for judicial review of the Tribunal's rulings are premature on the basis that the rulings are interlocutory decisions made during the course of the Tribunal's proceedings. This set of reasons deals with both appeals and a copy will be placed in each file. |
| ¶ 10 Are the applications for judicial review premature? As a general rule, absent jurisdictional issues, rulings made during the course of a tribunal proceeding should not be challenged until the tribunal's proceedings have been completed. The rationale for this rule is such that such applications for judicial review may ultimately be totally unnecessary: a complaining party may be successful in the end result, making the applications for judicial review of no value. Also, the unnecessary delays and expenses associated with such appeals can bring the administration of justice into disrepute. For example, in the proceedings at issue in this appeal, the Tribunal made some 53 rulings. If each and every one of the rulings was challenged by way of judicial review, the hearing would be delayed for an unconscionably long period. As this Court held in In Re Anti-Dumping Act, [See Note 7 below] "a right, vested in a party who is reluctant to have the tribunal finish its job, to have the Court review separately each position taken, or ruling made, by a tribunal in the course of a long hearing would, in effect, be a right vested in such a party to frustrate the work of the tribunal." |
| ¶ 17 In light of my conclusion that each and every ruling made by a Tribunal in the course of its proceedings cannot be the subject of an application for judicial review, it follows that the word "decision" contained in s.18.1(2) cannot refer to every interlocutory decision a tribunal makes. A party against whom an interlocutory order has been made is not therefore under an obligation to immediately appeal in order to preserve his rights. In my view, the time period prescribed in s. 18.1(2) of the Federal Court Act does not begin to run until the final decision in the proceedings has been rendered. If the Tribunal's final decision is appealed, any objection to procedures taken during the hearing of the appeal can be raised at that time. |
The appeal was allowed with costs.
[8] One must not, and does not, overlook the thought that not interrupting further proceedings in order to appeal interlocutory rulings enunciates a principle of convenience for the Courts. That does not square well with the danger facing the applicants in this proceeding. It may not square well with the principles of Siad v. Secretary of State [1997] 1 F.C. 608 (F.C.A.) which was concerned with fairness in the introduction of the Minister's article 1 F(a) and (c) evidence.
[9] The decision of Mr. Justice McDonald for unanimous Court of Appeal set forth some important principles which are highly applicable in this case at bar. Here are some pertinent facts:
| ¶ 5 On January 15, 1992, five days before the respondent's hearing was scheduled to commence, the Minister's representative informed respondent's counsel that he would be calling two witnesses who would testify as to Mr. Siad's role as Chief Custodian of the Lanta Bur prison. The next day, January 16, respondent's counsel responded with a faxed request for the names of witnesses and the evidence that they were expected to give. He referred the Minister's representative to the recent Supreme Court of Canada decision in R. v. Stinchcombe, [1991] 3 S.C.R. 326, but did not specifically request will-say statements or disclosure of previous statements by the witnesses or others contacted by the Minister during its investigation. The same day, the Minister's representative telephoned respondent's counsel and advised him of the names of the witnesses, the period to be covered by their evidence, their places of work in Somalia, the fact that they would testify that Mr. Siad had been governor of Lanta Bur, that one of them had had official dealings at the prison and that both had personal knowledge that Mr. Siad had been the governor of Lanta Bur. Respondent's counsel made no further disclosure requests until the hearing. |
The presiding member refused the claimant's counsel's request for the witnesses' personal information forms (PIFs) and declined to permit cross-examination of professor Samatar who gave an unsworn report citing "fifteen well-informed Somali informants." The tribunal admitted the statements, saying "it depends on the weight that we give to the particular document." (pp. 5-6).
The Court made the following findings in Siad:
| ¶ 15 Paragraph 69.1(5)(a) of the Immigration Act requires that the Tribunal afford the refugee claimant a "reasonable opportunity" to present evidence, cross-examine witnesses, and make representations. Although Stinchcombe, a criminal case, does not apply directly in the immigration context, it is nonetheless instructive. (Akthar v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 32 (C.A.), at pp. 42-43; Ahani v. Canada (1996), 37 C.R.R. (2d) 181 (F.C.A.). Counsel for the Minister conceded in oral argument, correctly, in my respectful view, that where the Minister alleges exclusion under Article 1F of the Convention, the Minister does owe a duty to disclose information relevant to the refugee claim. This concession is consistent with some of the literature regarding disclosure in the administrative context. (John I. Laskin, "Disclosure Obligations of Tribunals and Counsel Representing Them", in Philip Anisman and Robert F. Reid, Administrative Law: Issues and Practice (Scarborough: Carswell, 1995), at pp. 203-211.) |
| ¶ 16 Without deciding the overall content and parameters of the Minister's duty to disclose in exclusion cases, it is clear that in the particular circumstances of this case, the Minister's disclosure obligation was satisfied. More than a month before the hearing, the Minister's representative provided to respondent's counsel a summary of the anticipated evidence of his witnesses over the telephone; the testimony of the witnesses ultimately conformed to this summary. If counsel for the claimant considered the Minister's disclosure inadequate, he should have objected to it before the hearing began, as he had ample opportunity to do. |
| ¶ 17 In the criminal as well as the civil context, the obligation to disclose arises only upon the request of opposing counsel. (Stinchcombe [1991] 3 S.C.R. 326.) Thus the Minister's disclosure obligation arises only when a claimant's counsel requests disclosure. The Tribunal does not owe an independent duty to require disclosure where counsel neglects to request it. If the Minister fails to comply with his disclosure obligation, it is reasonable to expect the claimant's counsel to object in a timely manner and to draw this failure to the attention of the Tribunal at the earliest possible opportunity. Counsel's failure to do so should be an important factor in determining whether a new hearing should be ordered. (Stinchcombe, supra) |
With utmost respect, this Court directs the C.R.D.D. in this case to note and follow the principles unanimously adopted by the Federal Court of Appeal in Siad (supra).
[10] In sum, that last cited case of Siad and any further proceedings in this present case were and are all to be carried out according to the norms of Canadian law, which are profoundly fair. Fair treatment is exactly what the applicants' counsel demands and nothing before the Court in this case seems to be jeopardizing such treatment. Recourse to the Court is not foreclosed in this matter. The applicants' motion is dismissed, without costs.
Ottawa, Ontario
December 12, 2000
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