Date: 20091126
Docket: IMM-1057-09
Citation: 2009 FC 1211
Ottawa, Ontario, November 26, 2009
PRESENT: The
Honourable Mr. Justice Lemieux
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
and
JACQUES GRANDMONT
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
Introduction
and facts
[1]
The Minister of
Citizenship and Immigration (the Minister) is requesting that the decision of a
member of the Immigration
Appeal Division (the IAD or panel) of the Immigration and Refugee Board (IRB), dated February 18, 2009,
be set aside and that Mr. Grandmont’s appeal be referred back to the IAD for redetermination by a
differently constituted panel.
[2]
The
Minister cites two reasons in support of his application for judicial review. First,
he submits that paragraphs 7 to 9 of the IAD’s decision raise a reasonable
apprehension of bias that requires the intervention of this Court and, second,
he argues that the panel’s findings regarding the determining factors of its
decision are unreasonable.
[3]
Counsel
for Mr. Grandmont maintains that paragraphs 7 to 9 of the panel’s
decision, regarding the background, circumstances and content of the decision,
are not indicative of any real likelihood of a reasonable apprehension of bias;
he also submits that the panel’s findings on the merits are not unreasonable.
He raises an additional issue. He notes that the panel’s record does not
include a transcript and submits that that causes irreparable harm to his
client, since the panel’s statements during the hearing cannot be used to show
that no possible apprehension of bias exists.
[4]
Before
the IAD, Mr. Grandmont appealed the decision dated October 22, 2007
of visa officer Cormier (the officer), who was Second Secretary (Immigration)
in Beijing, to deny a permanent resident visa in the family class to
Ms. Feng Hua Xiu (the applicant), who is a citizen of China. The
officer had found that, under section 4 of the Immigration and Refugee
Protection Regulations (the Regulations), the marriage of
Mr. Grandmont and Ms. Feng Hua Xiu, which took place in
China on May 9, 2007, was not genuine and had been entered
into primarily for the purpose of acquiring a status or privilege under the
Regulations.
[5]
The
hearing before the panel took place from 11:00 a.m. to 4:30 p.m. on December 24, 2008.
The appeal was de novo, that is, it could be based on evidence that was
not before the officer. Mr. Grandmont testified by teleconference before
the IAD and the applicant. The panel also heard testimony from Mr. Lu and
Ms. Feng, the applicant’s uncle and aunt, who live in Montréal. The matter
was taken under consideration and a decision was delivered on February 18, 2009.
[6]
During
its deliberation, the panel received notification from the Minister that its
term would not be renewed; the panel made no mention of this to the parties,
but, in allowing Mr. Grandmont’s appeal, it wrote the following at
paragraphs 7, 8 and 9 of its reasons:
[7] The
panel must specify that, after that date, the undersigned Member received notification
from the Minister that his term would not be renewed, although there were still
some 4 years left to reach the usual limit of 10 years. The panel
mentions this fact because it causes a particular problem in relation to the
perceived independence of this panel. Indeed, in light of his age and
the negative impact of the Minister’s decision on his career plans and pension,
the Member must consider returning to private practice in the near future.
One of the possibilities that the Member will have to explore is obviously
returning to private practice, as Supreme Court and various provincial court
judges have done after reaching retirement age. Unfortunately, there is a
marked difference between their situation and that of the undersigned Member,
not just from a material standpoint, but also from the standpoint of
perceived independence, since they have a guarantee of independence through
their life appointments, whereas this Member is limited to a short career of
some six years. It is thus possible that one of the avenues to explore would be
returning to private practice and that the Member could find himself associated
with or in a business relationship with counsel for the appellant.
[8] Clearly,
one can easily see that the Minister might regard that situation as potentially
having an influence over this decision. In light of that, the undersigned
Member informed the IRB’s legal department of the issue and asked for
instructions as to whether it was better to withhold a decision and hear
the appeal on a de novo basis.
[9] The
undersigned Member received an opinion from the assistant to the Coordinating
Member for this Division in Montréal indicating that the legal department was
of the opinion that the Member should render a decision. The following is
therefore the panel’s decision. [Emphasis added.]
[7]
Mr. Grandmont
objected to the Minister’s request. To his respondent’s motion record, he
attached the affidavit of his counsel before the panel. Under oath, his counsel
denied having discussed with the panel (before, during or after the hearing on
December 24, 2008) the possibility that it might become associated
with him or his firm in an immigration law practice.
[8]
For
the reasons below, I find in the Minister’s favour on his first point, that
there is a reasonable apprehension of bias and a breach of procedural fairness,
in that the Minister’s representative before the IAD had no opportunity to
comment on the situation or, perhaps, to request that the panel disqualify
itself, depending on the circumstances. Therefore, it would not be prudent to
rule on whether or not the panel’s decision was reasonable on the merits. That
task shall fall within the jurisdiction of a differently constituted IAD panel.
Case law on reasonable apprehension of bias
[9]
The
parties cite the same decisions on this issue, which are found in two Supreme
Court of Canada lead-cases: (1) Committee for Justice and Liberty v.
Canada (National Energy Board), [1978] 1 S.C.R. 369 at
p. 394; and (2) R. v. R.D.S.,
[1997] 3 S.C.R. 484 (R.D.S.). The parties are divided on
the outcome of applying the principles laid down to the facts of this case and
the inferences that the Court can reasonably draw from the evidence. Counsel
for Mr. Grandmont also emphasizes that the panel benefits from the
presumption of judicial integrity. Counsel for Mr. Grandmont argues that
there is a double onus on the Minister, namely, (1) to show that, on a
balance of probabilities, there is a reasonable apprehension of bias; and
(2) to bring forward clear and convincing evidence that the presumption of
judicial integrity is rebutted.
[10]
I
quote the relevant passage from the reasons by Justice L’Heureux-Dubé and
Justice McLachlin, as she then was, in R.D.S. at
paragraph 111:
111 The
manner in which the test for bias should be applied was set out with great
clarity by de Grandpré J. in his dissenting reasons in Committee for
Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, at
p. 394:
[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. . . . [The] test is
“what would an informed person, viewing the matter realistically and
practically—and having thought the matter through—conclude. . . .” [Emphasis added.]
This
test has been adopted and applied for the past two decades. It contains a
two-fold objective element: the person considering the alleged bias must be
reasonable, and the apprehension of bias itself must also be reasonable in the
circumstances of the case. See Bertram, supra, at pp. 54-55; Gushman,
supra, at para. 31. Further the reasonable person must be an informed
person, with knowledge of all the relevant circumstances, including “the
traditions of integrity and impartiality that form a part of the background and
apprised also of the fact that impartiality is one of the duties the judges
swear to uphold”: R. v. Elrick, [1983] O.J. No. 515 (H.C.), at
para. 14. See also Stark, supra, at para. 74; R. v. Lin,
[1995] B.C.J. No. 982 (S.C.), at para. 34. To that I would add that
the reasonable person should also be taken to be aware of the social reality
that forms the background to a particular case, such as societal awareness and
acknowledgement of the prevalence of racism or gender bias in a particular
community.
[11]
The
circumstances surrounding R.D.S. are as follows. While delivering her oral
reasons, the trial judge commented, in response to a rhetorical question from
the Crown, that police officers had been known to mislead the Court in the past
and had been known to overreact, particularly with non-white groups. The judge
acquitted the appellant, who was a young person charged with assault on a
police officer. The Crown challenged the comments as raising a reasonable
apprehension of bias. The Nova Scotia Court of Appeal allowed the Crown’s
appeal and ordered a new trial. R.D.S. was successful before the Supreme Court
of Canada, and R.D.S.’s acquittal was restored.
[12]
I draw
the following principles laid down by the Supreme Court in respect of reasonable
apprehension of bias:
1. In such a case, actual
bias on the part of the tribunal need not be established; it is sufficient to
demonstrate that, on a balance of probabilities, there is a real likelihood or
probability of bias, since a mere suspicion is not enough.
2. Bias denotes a state of
mind, an attitude of the tribunal in relation to the issues—a state of mind
predisposed to decide an issue, a closed mind.
3. The onus of
demonstrating bias lies with the person who is alleging its existence. Further,
whether a reasonable apprehension of bias arises will depend entirely on the
facts of the case, that is, the circumstances of the case.
4. Context is important:
Was the decision delivered orally immediately after counsel had finished their
arguments? What was the nature of the arguments before the tribunal—a question
of law, an issue of credibility or question of fact, or an assessment of
contradictory evidence? Was the judge sitting on appeal or de novo?
5. Courts have recognized
that there is a presumption of judicial integrity, but the presumption of
judicial integrity can never relieve a judge from the sworn duty to be
impartial (R.D.S., at paragraph 117).
Absence of standard of review
[13]
When
a party, in a judicial review, raises the issue of a breach of procedural
fairness, as in the case at bar, case law establishes that the issue falls
squarely within the Court’s jurisdiction and the standard of review does not
apply (see Moreau-Bérubé
v. New Brunswick (Judicial Council), [2002] 1 S.C.R. 249, at paragraph 74).
Parties’ submissions
[14]
In
his written and oral submissions, counsel for the Minister cites cases in which
a reasonable apprehension of bias was acknowledged when, during a trial or
arbitration hearing, a business relationship existed between the tribunal and a
party (see (1) Ghirardosi
v. British Columbia (Minister of Highways), [1966] S.C.R. 367; and (2) Rothesay
Residents Association Inc. v. Rothesay Heritage Preservation & Review Board,
2006 NBCA 61).
[15]
Counsel for the
Minister adds another factor. Concerned by the risk of bias that it perceived,
the panel sought the opinion of the IRB’s legal department and “asked for
instructions” as to whether or not it was better to withhold a decision and
hear the appeal on a de novo basis. The panel decided to render a decision,
given that the IRB’s legal department “was of the opinion that the Member should
render a decision.” The Minister maintains that, in the circumstances of the
case at bar, the panel treated the response of the IRB’s legal department not
as an opinion, but as a duty or requirement to render a decision. The Minister
submits that the Member thereby failed to act with an appropriate degree of
independence.
[16]
The
Minister spent more time showing that the panel’s decision was unreasonable,
the panel having acknowledged that this case involves (1) an arranged
marriage; (2) an exchange in which the Canadian man gets a Chinese wife
who is docile and attentive to his needs, and she gets a husband who can help
her supplement her 16-year-old son’s education and provide her with the
opportunities that go with immigrating to Canada; and (3) her aunt’s
search for a husband for Ms. Feng in Canada, “obviously to facilitate her entry
into Canada,” citing the decision of Justice Frénette in The Minister of Citizenship and
Immigration v. Norman J. Champagne, 2008 FC 221, at paragraphs 25 and 26.
[17]
As for the absence of
a transcript of the hearing on December 24, 2008, counsel for
Mr. Grandmont
acknowledges that determining whether there is an apprehension of bias focuses
on the panel’s state of mind; however, he submits that the question of whether
or not there is a reasonable apprehension of bias is not limited to the panel’s
written decision, but includes the panel’s questions and comments at the
hearing. In those circumstances, the absence of a transcript deprives
Mr. Grandmont of evidence.
[18]
As
for the basis of the Minister’s allegation on the issue of reasonable
apprehension of bias, counsel for Mr. Grandmont submits that the context
of the decision is significant and this Court must extend its review beyond
paragraphs 7 to 9. He suggests that a broader examination shows no
reasonable apprehension of bias on the part of the panel, since, up to
paragraph 37 of its decision, the panel is merely establishing facts and
circumstances. In that context, it can be appreciated that the panel’s decision
was in no way influenced by what the panel wrote.
[19]
Moreover,
its comments include a purely hypothetical element. They express only the
possibility of exploring employment with Mr. Grandmont’s former counsel.
They express nothing concrete as to whether the panel will contemplate a
business relationship with Mr. Grandmont’s former counsel, who denies any
contact with the panel on that subject. Counsel argues that the possibility of
a relationship is not enough to provide a basis for a reasonable apprehension
of bias in the circumstances.
Conclusions
[20]
I
consider that the intervention of this Court is warranted in the circumstances.
Upon reading paragraphs 7 and 8 of the panel’s reasons in
Mr. Grandmont’s favour, it appears to me that the panel was very
disappointed by the decision of the Minister—one of the parties in the case
before it—not to renew its term as a member of the IRB. That decision,
according to the panel, significantly affects the Member’s life and finances.
He is considering returning to the practice of law and a potential business
relationship with the law firm of the appellant’s former counsel, among others.
In the panel’s mind, “[c]learly, one can easily see that the Minister might
regard that situation as potentially having an influence over this decision.”
[21]
It
is therefore the panel itself that acknowledges that the circumstances raise
the possibility of a reasonable apprehension of bias, to the point that it
informed the IRB’s legal department and asked for instructions as to whether it
was better to withhold a decision.
[22]
Moreover,
the fact that the Member’s mandate would not be renewed raises a specific issue
in the panel’s mind with respect to its perceived independence—the Member is
not appointed for life, as are higher-court judges, but “is limited to a short
career of some six years,” which could reasonably lead the panel to decide in
favour of Mr. Grandmont, to ensure that its independence was not
compromised.
[23]
For the
following reasons, I believe that the panel did not act fairly in the specific
circumstances of the case at bar.
[24]
It
is clear that, in the panel’s mind, the Minister’s decision not to renew the
Member’s term would lead to problems if the Member had to render a decision in the
case at bar. The Member felt that he should disqualify himself, but the legal
department was of the opinion “that the Member should render a decision.”
[25]
The
panel erred in treating the legal department’s opinion as an instruction, rather
than a recommendation that could be followed or not.
[26]
In
my opinion, the panel erred a second time by failing to inform the parties
involved that it saw a potential problem, which would have given the parties a
chance to make submissions and possibly disabuse the panel of its reluctance.
[27]
The
panel erred a third time by rendering a decision even though it was convinced
that the circumstances raised the possibility of a reasonable apprehension of
bias or undermined the panel’s independence.
[28]
Lastly,
regarding Mr. Grandmont’s argument that he was prejudiced because the
transcript of his appeal was not available, his counsel acknowledged, as did
the Court, that the transcript would have no bearing on the proceeding because
at the time the panel heard the case, it did not know that its term would not
be renewed.
[29]
For
these reasons, the judicial review is allowed.
JUDGMENT
THE COURT ORDERS AND ADJUDGES that the application for judicial review is
allowed, the panel’s decision is set aside and the matter is referred back for
redetermination by a differently constituted panel. There is no question to be
certified.
Judge
Certified
true translation
Brian
McCordick, Translator
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