Date: 20100611
Docket: IMM-4357-09
Citation: 2010 FC 638
Ottawa, Ontario, June 11,
2010
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
WAYNE
ANTHONY HILLARY
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (Act) for judicial review
of a decision of the Immigration Appeal Division (IAD) of the Immigration and
Refugee Board, dated August 7, 2009 (Decision), in which the IAD refused the
Applicant’s request to reopen his appeal.
BACKGROUND
[2]
The
Applicant was born in Jamaica. He came to Canada in 1981 at the age of
13 and acquired permanent resident status. He never applied for citizenship.
[3]
The
Applicant was diagnosed with HIV and schizophrenia in 1989.
[4]
The
Applicant has a lengthy criminal history dating back to 1987. Because of his
criminal activities, the Applicant was ordered deported in 1991. This order was
stayed for a period of five years. The IAD then allowed the Applicant’s appeal
and quashed the deportation order in March, 1998.
[5]
The
Applicant was ordered removed again in April, 2007 as a result of a conviction
for robbery. His appeal of this decision was dismissed by the first IAD panel
(Panel). The Applicant then applied to have his file reopened pursuant to section
71 of the Act. This application was refused by the IAD.
DECISION UNDER REVIEW
[6]
The
IAD found that where it is apparent that an appellant may not appreciate the nature
of the proceedings, further inquiry and possibly the appointment of a
designated representative is required.
[7]
The
IAD noted that the Applicant was represented by counsel and that no request for
a designated representative had been made.
[8]
Moreover,
because the Applicant had been previously ordered deported from Canada and had undergone
an appeal process from that decision, he “ha[d] a much greater familiarity with
the process than someone coming before the IAD for the first time.”
[9]
The IAD
noted that the Panel that had heard his appeal was aware of the Applicant’s
schizophrenia and referred to it multiple times in its decision to dismiss his
appeal. There is nothing in the Panel’s decision indicating that the Applicant
did not understand the nature of the proceedings. Indeed, the Applicant
provided evidence at the hearing to support his application.
[10]
The
IAD found it noteworthy that more than two years had passed between the dismissal
of the Applicant’s appeal and his application to reopen the appeal. Furthermore,
the IAD noted that the Applicant
ha[d]
not argued that any request for a designated representative was put forth or
that anything in the appellant’s behaviour or demeanor should have alerted the
panel to the need for a designated representative.
Rather, the IAD determined that the Applicant was
arguing that the appointment of a designated representative should have been
considered because the Panel was aware of the Applicant’s schizophrenia.
[11]
The
IAD noted that not all persons suffering from schizophrenia are incapable of
appreciating the nature of the proceedings and so require a designated
representative. In this case, the Applicant instructed counsel and testified on
his own behalf. Furthermore, counsel for the Applicant did not raise any
concern with regard to the Applicant’s ability to instruct or appreciate the
nature of the proceedings. There was no evidence before the IAD in this
instance to demonstrate that the Applicant was unable to tell his story.
[12]
The
Applicant would have liked to make a better presentation of his case to the Panel.
The Panel’s decision was based in part on the lack of evidence as to the
“facilities, medicine and programs” available to those in Jamaica requiring treatment for
HIV and schizophrenia. The Panel also took into account that the Applicant’s
mother and sister did not attend the hearing or provide letters in support, that
the psychological evidence before the Panel was dated, and that the Applicant
had “almost completely denied any criminal involvement in relation to the
offences on his record.” The IAD determined that the Panel’s findings “point to
a failure in appeal strategy or preparedness that may reflect on counsel
decisions rather than revealing an inability to appreciate the nature of the
proceedings.”
[13]
The
IAD also determined that the inadequacy of the Applicant’s presentation was not
due to a failure on the Panel’s part to “observe a principle of natural
justice.” In the words of the IAD,
one
cannot look at the Member’s observation about the failings in the appellant’s
case and deduce that a designated representative would have dealt with those
failings in a manner that would have provided a different outcome
[14]
Indeed,
the IAD found that the availability of a designated representative would not
have affected the Panel’s negative findings with regard to the Applicant’s lack
of remorse and rehabilitation. Furthermore, the IAD determined that
there
is no basis to conclude that a designated representative would have instructed
counsel to present evidence about country conditions in relation to HIV and
schizophrenia treatment or arranged for the appellant’s mother or sister to
testify.
[15]
Because
the Applicant had not established that the Panel failed to observe a principle
of natural justice, his application to reopen the appeal was denied.
ISSUES
[16]
The
issues on this application can be summarized as follows:
1.
Whether
the Panel that heard the Applicant’s initial application erred in failing to
advise the Applicant of the possibility of having a designated representative
and asking whether one was required;
2.
Whether
the IAD used the wrong test in determining whether a breach of fairness occurred
during the Applicant’s application to reopen his appeal.
STATUTORY PROVISIONS
[17]
The
following provisions of the Act are applicable in these proceedings:
|
Reopening appeal
71. The Immigration Appeal Division, on application by a foreign
national who has not left Canada under a removal order, may reopen an appeal if it is satisfied
that it failed to observe a principle of natural justice.
Representation
167 (2) If a person who is
the subject of proceedings is under 18 years of age or unable, in the opinion
of the applicable Division, to appreciate the nature of the proceedings, the
Division shall designate a person to represent the person.
|
Réouverture de l’appel
71. L’étranger qui n’a pas quitté le Canada à la
suite de la mesure de renvoi peut demander la réouverture de l’appel sur
preuve de manquement à un principe de justice naturelle.
Représentation
167 (2) Est commis
d’office un représentant à l’intéressé qui n’a pas dix-huit ans ou n’est pas,
selon la section, en mesure de comprendre la nature de la procédure.
|
STANDARD
OF REVIEW
[18]
The
Supreme Court of Canada in Dunsmuir
v. New Brunswick,
2008 SCC 9,
[2008] 1 S.C.R. 190 held that a standard of review analysis need not be
conducted in every instance. Instead, where the standard of review applicable
to the particular question before the court is well-settled by past jurisprudence,
the reviewing court may adopt that standard of review. Only where this search
proves fruitless must the reviewing court undertake a consideration of the four
factors comprising the standard of review analysis.
[19]
Issues
of procedural fairness are to be considered on a standard of correctness. See Dunsmuir,
above, at paragraphs 126, 129. Accordingly, correctness is the appropriate
standard to use in considering whether the Panel erred by failing to inform the
Applicant about the possibility of the appointment of a designated
representative.
[20]
Correctness is also
the appropriate standard with which to consider whether or not the IAD applied
the appropriate legal test to the case at hand. Based on the Supreme Court’s
ruling in Dunsmuir, questions of law may be reviewable on a reasonableness
standard, if they are not “legal questions of central importance to the legal
system as a whole and outside a decision-maker’s specialized area of
expertise.” See Dunsmuir, above, at paragraphs 55 and 60. However, in accordance
with the analysis of Justice Dawson in Zambrano v. Canada (Minister of Citizenship
and Immigration),
2008 FC 481, [2008] F.C.J. No. 601, as in the case at hand,
having regard to the absence of a privative clause, the relative
lack of expertise on the part of an officer to appreciate whether he or she has
applied the wrong test at law, and the importance of ensuring that officers
apply the test that Parliament has prescribed, I conclude that the question of
whether the officer applied the correct test is reviewable on the correctness
standard.
In my view then, correctness is the
appropriate standard in considering whether the IAD applied the correct legal
test.
ARGUMENTS
The Applicant
Designated
Representative
[21]
The
Applicant submits that there is an obligation under section 167(2) of the Act to
designate a representative for an applicant who cannot appreciate the nature of
the proceedings. This obligation arises at “the earliest point in time at which
the Board became aware of facts which revealed the necessity of…a designated
representative.” See Duale v. Canada (Minister of
Citizenship and Immigration), 2004 FC 150, [2004] F.C.J. No. 178. A
failure to comply with this obligation is an error in jurisdiction which
renders the decision void. See, for example, Vashee v. Canada (Minister of Citizenship
and Immigration), 2005 FC 1004, [2005] F.C.J. No. 1360; Sibaja v. Canada (Minister of
Citizenship and Immigration), 2004 FC 1079, [2004] F.C.J. No. 1363; Stumf
v. Canada (Minister of
Citizenship and Immigration), 2002 FCA 148, [2002] F.C.J. No. 590.
[22]
In
this instance, the Panel was aware of the Applicant’s mental illness. However,
the Panel did not examine the Applicant with regard to his condition or his
appreciation of the nature of the proceedings. As described in his affidavit, it
was only after the hearing that it became clear that the Applicant did not
fully comprehend the nature of the proceedings.
Wrong
Legal Test
[23]
The
test to determine whether a breach of procedural fairness has occurred was
stated by Justice Dawson in Duale, above. In Duale, an
application for judicial review was allowed on the basis that Justice Dawson could
not “safely conclude that the failure to appoint a designated representative
could not have an adverse effect on the outcome of the claim.”
[24]
Accordingly,
what is important is whether the failure to appoint a designated representative
could have affected the final outcome of the claim. The Applicant
stresses the low legal threshold that exists to consider whether a designated
representative ought to have been appointed. Indeed, this consideration should
be determined on possibility rather than certainty. The Applicant submits that the
purpose of this low threshold is to ensure fairness for the most vulnerable
individuals (children and individuals living with mental illness) in the legal
system.
[25]
The
IAD erred in applying a higher threshold than that set out by Justice Dawson in
Duale: rather than considering whether a designated representative could
have changed the outcome, the IAD instead considered whether the presence of a
designated representative would have changed the outcome. The
Applicant’s application to reopen his appeal was rejected on the basis that
“one cannot look at the Member’s observations about the failings in the
appellant’s case and deduce that a designated representative would have
dealt with those failings in a manner that would have provided a different
outcome” [emphasis added]. Furthermore, the IAD stated that
similarly there is no basis to conclude
that a designated representative would have instructed counsel to present
evidence about country condition in relation to HIV and schizophrenia treatment
or arranged for the appellant’s mother or sister to testify.
The IAD erred in applying a higher legal
threshold to this issue than was necessary, as per the case of Duale.
Role
of a Designated Representative
[26]
In
creating a role for a designated representative, it is clear that Parliament
intended to provide a higher threshold of protection for individuals who would
be considered vulnerable by the Board. The Applicant submits that a large part
of a designated representative’s role is to instruct counsel and ensure they
are performing their duties. While the IAD determined that the Applicant was
able to “tell his story,” it also found that the Applicant’s counsel was not effective.
The IAD erred in failing to make the connection between the absence of a
designated representative and a client’s not being effectively represented by
counsel. A designated representative is intended to serve as a protection
against negligent counsel.
[27]
Important
tasks of the designated representative include ensuring that necessary evidence
is brought to the attention of the panel and ensuring that counsel is being properly
instructed. The Panel’s reasons make it clear that the lack of medical evidence
from Jamaica with regard
to health care was detrimental to the Applicant’s application. The IAD failed
to consider that it is the role of a designated representative to instruct and
monitor counsel as well as to present evidence. Because of the lack of a
designated representative, proper instruction of counsel did not occur in this
case and the necessary evidence was not adduced to support the Applicant’s
claim. This resulted in severe detriment to the Applicant’s application.
[28]
The
Applicant submitted to the Panel as a humanitarian and compassionate argument
that he would lose access to life-saving medications upon his return to Jamaica. This could ultimately
result in his death. The Panel, however, did not accept this argument because
it found little or no evidence to support it.
[29]
The
provision of a designated representative could have affected the Panel’s
findings significantly. First, being familiar with the process, the designated
representative would have understood the necessity of submitting country
documentation with regard to Jamaica as well as updated
medical documentation. Second, the designated representative could have ensured
that this evidence was submitted on the Applicant’s behalf. In this case, the
lack of a designated representative was directly related to the failure to
adduce adequate evidence. This failure to adduce evidence then affected the
outcome of the Applicant’s application.
[30]
The
Applicant likens the case at hand to Black v. Canada (Minister of Citizenship
and Immigration), 2009 FC 703, [2009] F.C.J. No. 872 where the Court determined
that
there are problems of care, homelessness
and incarceration, and human rights abuses in which the Jamaican authorities
are often implicated, that would have been placed before the IAD by a
designated representative who understood the nature of her role. These matters
could well have led the IAD to a different conclusion. The breach of procedural
fairness was highly material to [the] outcome in this case.
The Need
for a Designated Representative
[31]
In
this instance, the IAD determined that “where it is apparent to a Member that
the appellant may not appreciate the nature of the proceedings, then further
inquiry and possibly the appointment of a designated representative is
required.” The Applicant contends that it is necessary for the Court in this
case to determine the point at which it should have become apparent to the Panel
that the possible appointment of a designated representative was required to
deal with issues of mental health.
[32]
The
Applicant contends that, based on Duale, this is a low threshold that is
passed as soon as the issue of mental health arises in a proceeding. Indeed,
procedural fairness requires that the Applicant be notified of the possibility
of having a designated representative, and a panel must conduct an inquiry to
satisfy itself that the Applicant understands the nature of the proceedings. This
is comparable to the jurisprudence regarding children – as soon as the board is
made aware that an applicant is under 18 years of age, a designated
representative must be appointed. See, for example, Duale and Stumf,
above.
[33]
The
Applicant recognizes that children attract different requirements of procedural
fairness than people with mental health problems. Nevertheless, he submits that
the Immigration and Refugee Board is required to notify an applicant of the
possibility of a designated representative when an applicant’s mental illness
is brought to light. From there, the panel must undertake an inquiry to satisfy
itself that an applicant is able to understand the nature of the proceedings.
[34]
The
IAD essentially found that the determination of whether or not a designated
representative is required is based on whether a request is made by an applicant,
or on whether an incident occurs that alerts the panel to this requirement. The
Applicant submits that this threshold is too high. Board members have no
training in symptoms of mental health. Moreover, individuals who live with
mental health issues may learn to “cover up” their symptoms over time so that
no behavioural actions or incidents occur. The Panel has an obligation to
ensure that the rules of procedural fairness are being met, and it cannot rely
on an applicant’s counsel to ensure this; rather, this obligation must be
discharged by conducting an inquiry “at first instance when the Board becomes
aware of the issue.”
[35]
The
Respondent contends that the Applicant waived his right to procedural fairness because
he did not request a designated representative sooner; however, the Applicant
was unaware of the possibility of having a designated representative until he
acquired new counsel two years after the application. The Applicant was never
informed of this possibility. As such, it cannot be argued that he waived this
right.
The Respondent
Guidelines
[36]
The
Respondent contends that Citizenship and Immigration Canada’s “Guideline 8: The
Chairperson’s Guideline on Procedures with Respect to Vulnerable Persons
Appearing Before the IRB,” December 2006 (Guideline 8), holds that it is the
counsel for the person who may be considered vulnerable who is in the best
position to bring this vulnerability to the attention of the panel. Counsel is
expected to do this as soon as possible. Other parties, such as counsel for the
Minister, who may be aware of the vulnerability, are also encouraged to bring
this vulnerability to the attention of the panel.
[37]
Guideline
8 also states that, before protections are made available to a vulnerable
person in an adversarial hearing, the Minister must have the opportunity to
make submissions to ensure that the Minister’s case can also be presented
fairly and completely.
No Evidence
[38]
No
expert evidence was presented to bolster the Applicant’s claim that a
designated representative was required in this instance. The Respondent submits
that, absent evidence to show the requisite incapacity, it cannot be presumed
that all persons suffering from schizophrenia are incapable of appreciating the
nature of the proceedings and/or of fully participating in the hearing.
Waiver of
Rights
[39]
It
was necessary for the Applicant to raise his objection with regard to the
failure to appoint a designated representative at the earliest opportunity
possible. This is especially so where the Applicant was represented by counsel.
The Respondent submits that the appropriate time would have been “at the
hearing of the appeal at the very latest.” However, the Applicant did not raise
this issue until over two years after the refusal of the appeal. As such, the
Applicant waived his right to claim a breach of procedural fairness after
having received a negative result. See, for example, Benitez v. Canada (Minister of
Citizenship and Immigration), 2006 FC 461, [2006] F.C.J. No. 631 at
paragraphs 212-214.
All Material
Considered
[40]
It
was open to the IAD to determine that the Applicant’s schizophrenia was not in
and of itself an adequate reason for the appointment of a designated
representative. Indeed, there is no indication that the Applicant did not
understand the proceedings. Furthermore, not all persons suffering from
schizophrenia are incapable of understanding proceedings and participating in
them. Each case must be considered on its own merits.
[41]
In
this case, the Applicant was represented by counsel and he testified on his own
behalf. Neither the Applicant nor his counsel raised any concern that the
Applicant could not properly instruct counsel or fully participate in the
hearing. As determined by the IAD, the fact that the Applicant would have liked
to have presented his case better does not mean that his right to procedural
fairness was breached.
[42]
The
Applicant has submitted that the Panel should have been sensitive to his need
for a designated representative, and subsequently appointed one. To support
this statement, the Applicant cites a number of cases that relate to minors,
such as Duale and Stumf, above. However, there is a statutory
requirement that a designated representative be appointed in the case of minors.
This is not the case for those with mental illness. Pursuant to the Act and
Guideline 8, where there is no presumption of an inability to appreciate the
nature of the proceedings, counsel is best placed to bring the need for a
designated representative to the attention of the panel.
ANALYSIS
Section 167(2) Issues
[43]
Both
the Duale and Vashee cases relied upon by the Applicant dealt
with minors. In the case of minors, section 167(2) of the Act says that the relevant
Division “shall designate a person to represent the person.”
[44]
In
the case of the Applicant, who was not a minor (and who now claims that
throughout the hearing he was “extremely confused as to what was happening,” so
that he could not follow the proceedings and that he “would have benefited by
having a designated representative) the obligation of the Panel to appoint a
personal representative only arises if the Applicant was unable “in the opinion
of the [Panel], to appreciate the nature of the proceedings.”
[45]
The
Applicant concedes that “it is not the obligation of the [Panel] to appoint a
designated representative in every case where mental health is asserted.” What
he does say, though, is as follows:
Procedural fairness does require that the
[Panel] inform applicants with mental health illnesses of their ability to
appoint a designated representative and to make at least some inquiry to
determine whether one is necessary to ensure a fair hearing.
[46]
The
Applicant cites no authority for this proposition. The Applicant is, in effect,
asserting that there is a positive duty on the Panel to inquire about whether a
designated representative is needed – at least on the facts of this case where
the Panel was aware of the Applicant’s schizophrenia. He says it is not enough
for a panel, in reaching an opinion under section 167(2) as to whether or not
someone is unable to understand the nature of the proceedings, to simply rely
upon the contextual factors that were present in this case. Those contextual
factors are as follows:
a. The Applicant
had been through similar proceedings before and there was nothing to suggest
that he did not know what was required of him;
b. If the
Applicant was confused at the hearing, he did not mention this to anyone;
c. There is no
evidence to suggest from the Applicant’s conduct as the hearing that the Panel
should have formed an opinion that he needed a designated representative;
d. The Applicant
was represented at all material times by counsel and there is no evidence to
suggest that counsel did not understand the nature of the proceedings or what
was required by way of evidence or argument to support the Applicant’s case;
e. The Applicant
waited almost two years before making an application to re-open his appeal on
the basis that he was confused at the time and could have benefited from a personal
representative.
[47]
In
his affidavit, the Applicant does not say that he was unable to instruct his
legal counsel appropriately before the Panel hearing. He says that the problems
occurred at the hearing:
Throughout the hearing I was extremely
confused as to what was happening. I felt that the proceedings were moving
extremely quickly and I could not follow them. My lawyer did not counsel me
properly or advise me accurately as to what to expect. I was unable to decipher
what was happening and was left to trust him to represent me. I do not know
what he submitted on my behalf as he never informed me.
[48]
In
my view, this amounts to an allegation of incompetent counsel several years
after the fact. There is no evidence before me to support these allegations
apart from the Applicant’s affidavit. What is more, the Applicant does not say
that there was anything about his conduct at the hearing that should have
alerted the Panel to his confusion and/or the need for a designated
representative. His position is simply that, because there was evidence he was schizophrenic,
the Panel should have embarked upon an inquiry into whether he needed a
designated representative.
[49]
There
is no authority that the Applicant can point to that would support such an
absolute obligation. Section 167(2) says that whether or not someone is able to
appreciate the nature of the proceedings is a matter for “the opinion of the
applicable Division.”
[50]
In
the present case, the IAD accepted the proposition that where it is apparent to
a member that an applicant may not appreciate the nature of the proceedings
“then further inquiry and possibly the appointment of a designated
representative is required.” However, the IAD pointed out that there was
“nothing in the panel’s reasons that indicates that the appellant did not
understand the nature of the proceedings”:
The appellant has not argued that any
request for a designated representative was put forth or that anything in the
appellant’s behavior or demeanor should have alerted the panel to the need for
a designated representative. The argument is fundamentally that given that the
panel was aware of the appellant’s schizophrenia the appointment of a
designated representative must be explored.
[51]
The
IAD then reviewed the contextual factors and concluded that “the evidence
implies that the appellant would like to have presented his case better” and
not that the Panel should have been alerted to the need for a designated
representative. I cannot say this conclusion was either unreasonable or
incorrect. The Applicant says that section 167(2) is unclear as to what is
required by way of procedural fairness when a “Division” is dealing with
someone with a mental illness. He says that, once the Panel knew he suffered
from schizophrenia, it was required to:
a. Notify the
Applicant of the possibility that he might need a designated representative;
and
b. Undertake an
inquiry with the Applicant in order to decide whether or not he understood the
nature of the proceedings.
He says that such a high level of
procedural fairness is required when vulnerable people are involved and that
the Panel was obliged to satisfy itself that the Applicant understood the
nature of the proceedings. He says it was not sufficient for the Panel to rely
upon the contextual factors listed above.
[52]
The
Applicant is asking the Court to read into section 167(2) an obligation for a “Division”
to embark upon an inquiry into the understanding of someone who has an
acknowledged mental illness, even in a situation where such an applicant is
represented by counsel and displays no outward sign at the hearing that he is
unable to understand the nature of the proceedings.
[53]
In
my view, the plain reading of section 167(2) read in context says that a
Division need only designate a representative for someone who is not a minor if
it forms an opinion that the person in question is unable to appreciate the
nature of the proceedings. In my view, then, what is required to achieve
procedural fairness will depend upon the full context of each case. In this
case, the Panel knew that the Applicant had schizophrenia, but there was
nothing to indicate that his schizophrenia prevented him from understanding the
nature of the proceedings. In fact, the Applicant has a long history of
appearing in legal proceedings and there is no evidence to suggest that his
schizophrenia has prevented him from understanding what has taken place. There
may well be situations where a Division is obliged to advise an applicant and
undertake a formal inquiry into his understanding of the proceedings, but I do
not think that such a procedure was required in the full context of this case.
The
Guidelines
[54]
According to Guideline 8, vulnerable persons are
defined as
a.
Individuals whose ability to present their
cases before the IRB is severely impaired. Such persons may include, but would
not be limited to, the mentally ill, minors, the elderly, victims of torture,
survivors of genocide and crimes against humanity, and women who have suffered
gender-related persecution.
Based on this definition, it appears that there is a recognition
that the mentally ill may be included in the class of vulnerable people, but
that this is not necessarily the case. Mental illness does not automatically
equate to an inability to present the case in hand.
[55]
The objectives of
Guideline 8 include the following:
3.1 To
recognize that certain individuals face particular difficulties when they
appear for their hearings or other IRB processes because their ability to present their cases is
severely impaired.
3.2 To
ensure that such vulnerable persons are identified and appropriate procedural
accommodations are made [emphasis added].
3.3 To
the extent possible, to prevent vulnerable persons from becoming traumatized or
re-traumatized by the hearing process or other IRB process.
3.4 To
ensure the on-going sensitization of members and other hearing room
participants.
[56]
Guideline 8 suggests
ways to address the barriers encountered by vulnerable people, and provides that
the Division has a “broad discretion to tailor procedures to meet the
particular needs of a vulnerable person, and, where appropriate and permitted
by law, the Division may accommodate a person's vulnerability by various
means.”
[57]
While Guideline 8 may
be of some relevance in a general sense to the present case, the most relevant
guidance in this area is, in my view, found in the Immigration and Refugee
Board of Canada’s “Guide to Proceedings Before the Immigration Division”
(Guide). Chapter 7 of the Guide focuses specifically on persons who are unable
to appreciate the nature of the proceedings.
[58]
Section 7.3.1 of the
Guide canvasses the steps that should be taken before a hearing:
Rules 3(o) and 8(1)(m) provide that the Minister must inform the Immigration Division
if he or she believes that a
person who is to be the subject of an admissibility hearing or
a detention review is less than
18 years of age or is unable to appreciate the nature of the proceedings [emphasis in original].
This duty is also
imposed on counsel. In fact, according to Guideline 8, above, “counsel for a person who may be considered
vulnerable is best placed to bring the vulnerability to the attention of the IRB, and is expected to do so as soon as
possible.” Under Guideline 8, a similar duty is also extended to others: Guideline
8 holds that “others who are associated with the person or who have knowledge
of facts indicating that the person may be vulnerable (counsel for the Minister
or any other person) are encouraged to do the same.”
[59]
Chapter 7 also indicates
who should be represented by a designated representative. It holds that “the
member must designate a representative for any person who, in the member’s
opinion, is unable to appreciate the nature of the proceedings. Moreover, “if
there is no indication to the contrary, it is reasonable to assume that the
person concerned can appreciate the nature of the proceedings” [emphasis
added].
[60]
In accordance with the
Guide, the member’s opinion is generally to be based on: a) medical reports
concerning the mental state of intellectual ability of the person concerned; or
b) difficulties noted in meetings or discussions with the person concerned
before the hearing.
[61]
The Guide states that
“it is up to the member to determine whether the person concerned is able to
appreciate the nature of the proceedings of which he or she is the subject.”
Several factors for consideration are listed in Section 7.5.1:
7.5.1 Determining
the inability to appreciate the nature of the proceedings
To
decide whether the person concerned is able to appreciate the nature of the
proceedings, the member may base himself on the following factors:
-
admissions by the person who is the
subject of the proceedings concerning his or her inability to understand what
is going on;
-
the testimony or report of an expert on
the mental health or cognitive abilities of the person who is the subject of
the proceedings;
-
the behaviour observed at the hearing
(namely, the responses of the person who is the subject of the proceedings to
the questions that are put to him or her); and
-
the observations of the parties.
[62]
The Guide also
includes a test of sorts to determine if a person appreciates the nature of the
proceedings. Chapter 7 suggests that “the member should explain the possible
consequences of the hearing in very simple terms and, then, ask the person to
explain them in his or her own words.” If the person is unable to do this, it “usually
demonstrate[s] the person’s inability to appreciate the nature of the
proceedings and will justify the designation of a representative.”
[63]
It is important to
note, however, that Chapter 7 considers mental illness in the context of understanding the nature of the
proceedings. The Guide says that “a person may have a mental illness or limited
intellectual skills but still be able to appreciate the nature of the
proceedings.”
[64]
Although medical
reports may be “sufficiently precise and detailed to indicate” that a
designated representative may be necessary, the member must also consider other
factors and “in particular, the behaviour of the person concerned, before
designating a representative.”
[65]
The Guide notes
further that “the member only has to form an opinion that the person is unable
to appreciate the nature of the proceedings of which he or she is to be the
subject.”
Jurisprudence
[66]
The jurisprudence in
this area of the law is not fully developed. However, in my view, there are two
cases that provide guidance on the issues before me.
[67]
The case of Sharma
v. Canada (Minister of Citizenship and Immigration), 2008 FC 908, [2008] F.C.J. No. 1142 dealt
with a psychologically vulnerable couple. In determining whether the couple
should have had a designated representative, Justice Legacé stated at paragraph
19 that
the applicants’
psychological vulnerability should not be confused with that of a person who is
unable to appreciate the nature and proceedings or the questions at a hearing
before the Board. It is for the Board to determine whether an applicant
requires a designated representative, based on the individual’s apparent
understanding (or lack thereof) of the proceedings and the questions [emphasis
added].
[68]
Justice Legacé also
noted at paragraph 25 of Sharma that “neither the intervenor who
accompanied the applicants for moral support nor their counsel made any
objection that would suggest that the applicants did not understand the
questions or the procedure.”
[69]
Justice Legacé then
reviewed the transcript of the testimony and determined that the applicants “appeared
to have understood both the questions and the nature of the proceedings.” As a
result, he decided it was open to the Board to dismiss the applicants’
application for a representative and for him to uphold that decision, “absent
evidence before or during the hearing that the applicants were unable to
understand the nature of the proceedings or the questions.” See Sharma,
above, at paragraph 26.
[70]
The case of Abdousafi
v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1372, [2001]
F.C.J. No. 1891 involved a situation where the Board had expressed
concern with regard to the applicant’s ability to appreciate the nature of the
proceedings. However, after further consideration based on its own observations
and experiences with the applicant, the Board determined that the applicant was
capable of appreciating the nature of the proceedings. The Court held in
paragraph 13 of Abdousafi that “the Act does not require that the CCRD
must rely on a medical assessment rather than its own assessment of the
applicant’s ability. The onus was on the applicant to bring forward medical
evidence of his alleged deficiency.” As a result, the Court concluded that
the applicant
did not satisfy the test set out in the Act, namely, that the applicant is
unable to appreciate the nature of the proceedings in order to require the
designation of a representative at the hearing.
[71]
Furthermore, the Court
held at paragraph 14 of Abdousafi that there was no evidentiary basis to
establish “the necessary factual foundation to support the allegation that
[the] applicant’s counsel was aware of his mental health deficiency and neglected
to obtain a medical assessment.”
Conclusion on First Point
[72]
I believe that both
Chapter 7 of the Guide and the above-mentioned jurisprudence may be applied to
the facts at hand to limit the onus the Applicant has attempted to place on the
Panel with regard to the obligation to advise him of the possibility of a
designated representative.
[73]
Both Sharma and
the Guide discuss the onus on the Panel to determine whether an applicant requires a designated
representative. This determination is to be made based on the individual’s
apparent understanding of the proceedings and the questions asked by the Panel.
In this instance, the Applicant’s understanding was not considered an issue by
the Panel either before or during the hearing. As such, it appears that if the
Applicant or his counsel had concerns about the Applicant’s appreciation of the
nature of the proceedings, it was the Applicant’s onus to prove the lack of
understanding, as discussed in Abdousafi. There does not appear to be
any onus on the Panel other than to consider the appointment of a designated
representative if the Panel feels it is necessary based on its own opinion.
[74]
In the facts before me,
the Applicant made no admissions before or during the hearing with regard to
his inability to understand the proceedings. It was only after the Applicant’s
claim failed that he expressed an inability to understand what was going on.
[75]
The observed behaviour
of the Applicant during the hearing did not lead the Panel to believe that the
Applicant did not understand the nature of the proceedings. Furthermore, during
the proceedings, neither the parties nor counsel suggested that the Applicant
was unable to understand what was going on.
[76]
While the Panel was
aware that the Applicant has schizophrenia, there was no indication that the
Applicant did not understand the nature of the proceedings. As such, according
to the Guide, “it is reasonable to assume that the person concerned can
appreciate the nature of the proceedings.” This could also be compared to the
situation in Sharma, in which the applicants were psychologically
vulnerable.
[77]
The Guide and the
jurisprudence do not suggest that there is an automatic obligation for a panel
to undertake an inquiry as to an applicant’s understanding of the proceedings
simply because he/she has been diagnosed with schizophrenia or any other mental
illness. Rather, both the jurisprudence and the Guide suggest that such an
inquiry is triggered by the Panel’s own opinion, which is generally based on
medical reports with regard to the person’s mental state and/or any
difficulties noted in meetings or discussions prior to the hearing or during
the hearing itself.
[78]
In this instance, the Panel
observed nothing to suggest that a designated representative was necessary.
Furthermore, neither counsel nor the parties to the hearing (including the Applicant)
reported any concern with regard to the Applicant’s ability to appreciate the
nature of the proceedings either before or during the hearing. Accordingly, I
do not believe that the Applicant’s procedural fairness was breached in this
instance. Moreover, the law and policy in this area do not suggest that there
is an onus on a panel to inform an applicant of the possibility of a designated
representative, unless the member feels it is necessary based on his or her own
opinion.
The Correct
Test
[79]
The
IAD’s findings about whether a designated representative would have made any
difference and its use of the word “would” instead of “could”, in my view, are
to be considered in conjunction with the IAD’s finding that there was nothing
“in the appellant’s behavior or demeanor [that] should have alerted the panel
to the need for a designated representative.” I do not read the jurisprudence
of this Court as saying that, even if there was nothing that should have
alerted the IAD to the need for a designated representative, then procedural
unfairness still occurs provided a designated representative “could have
affected the outcome of the case.”
[80]
I
agree with the Applicant that, on this aspect of the Decision, the IAD applied
too high a test and should have inquired whether a designated representative
“could” have made a difference. See Duale at paragraphs 20-21 and Vashee
at paragraph 12. However, this still leaves the matter of whether the Panel
correctly complied with section 167(2) in this case and whether the panel
correctly assessed this issue. In my view, there was no reviewable error in
this regard so that the Decision must stand. Whether or not a designated
representative could, or would, have made a difference was an alternative
finding and ground for refusing the application to re-open.
Certification
[81]
The
Applicant has proposed the
following question for certification:
When evidence is
presented that an appellant is suffering from a mental illness, does a duty
arise in the IAD to determine in accordance with s. 167(2), whether or not the
appellant is capable of understanding the nature of the appeal proceedings? If
so, what formal procedural steps must be taken by the Board to meet this duty?
Parties’ Submissions
Applicant
[82]
The Applicant contends
that this question meets the test for certification, since it is a serious
question of general importance that would be dispositive of the appeal. See
Zazai v. Canada (MCI), [2004] F.C.J. No. 368 at paragraph 11.
[83]
The question is one of
general importance because it applies to all individuals with mental illness
that appear before the Panel. People with mental illness constitute a
vulnerable group, and it is imperative that the procedural protections they
receive are clear and well defined in order to ensure that they are able to
participate effectively in the hearing.
[84]
Although subsection
167(2) of the Act grants discretion to decision makers when determining whether
a designated representative is required, this discretion must still be
exercised in a manner that ensures procedural fairness. According to the
Applicant, “the rules and limitations on the exercise of this discretion are
not inherent in the statute and jurisprudence is required to determine what
they are.”
[85]
Addressing the question
posed by the Applicant would determine if the Panel has a duty to exercise its
discretion under section 167(2) and form an opinion as to whether a person is
capable of understanding the nature of the proceedings. Furthermore, it would
clarify the procedural fairness obligations that must be met in exercising this
discretion.
[86]
Finally, the Applicant
submits that this question is dispositive of the Applicant’s appeal, since his
argument is based on the Panel’s failure to meet its statutory duty to
determine whether he was capable of understanding the nature of the
proceedings. This is important to consider, since the parties in this instance
disagree as to whether a duty exists in this instance and, if so, what this
duty entails.
Respondent
[87]
The Respondent says that
it is “of the view that a certified question is not appropriate in this
instance, on the basis that the factual record is insufficient to justify a
question that meets the test for certification.”
Conclusions on Certification
[88]
I agree with the
Applicant that certification is appropriate for the question at hand. While
there is discretion granted to the Panel under subsection 167(2) to determine
whether an applicant can appreciate the nature of the proceedings, it is
important that this discretion be exercised in a procedurally fair manner.
[89]
The issue at hand is
certainly a serious question of general importance. See Zazai, above,
and Varela v. Canada (MCI), 2009 FCA 145. This issue is also one that is
dispositive of the appeal. Indeed, in determining whether the Panel adhered to
principles of procedural fairness by discharging its onus under subsection
167(2) of the Act, it must first be determined exactly what (if any) duty the Panel
has to the mentally ill based on this subsection of the Act.
[90]
Furthermore, the
question arises from the basic issue in this case, and it is an issue that is
addressed in the reasons. Based on these considerations, it continues to meet
the threshold for a certified question under Varela, above.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that
1. The
application is dismissed.
2. The following
question is certified:
When evidence
is presented that an appellant is suffering from a mental illness, does a duty
arise in the IAD to determine in accordance with s. 167(2), whether or not the
appellant is capable of understanding the nature of the appeal proceedings? If
so, what formal procedural steps must be taken by the Board to meet this duty?
“James Russell”
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