Date: 20070412
Docket: IMM-5303-06
Citation: 2007 FC 385
Ottawa, Ontario, April 12,
2007
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
JEREMY
DANIEL CLARK-ERSKINE
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr.
Clark-Erskine, the Applicant, is a citizen of the United States who escaped
prison in the United States and made a refugee claim six weeks later after he
was arrested in Canada for possession of false documents, false passports
and stolen property. His refugee claim was rejected by the Immigration and
Refugee Board (Board), a critical aspect of the decision is the finding of
state protection and the absence of “cruel and unusual treatment and
punishment” at the hands of American officials – principally Indiana state
corrections officers.
I. BACKGROUND
[2]
The
Applicant has an extensive criminal record in both the United States and Canada. The crimes
are in the nature of fraud and deception. He had been in Indiana State Prison
where he claimed he was abused, beaten and denied his psychiatric medicines.
The Applicant suffers from epilepsy and bi-polar disorder.
[3]
The
Board found that the Applicant’s various crimes, including his escape from
prison, were not of sufficient gravity to fall within Article 1(F)(b) and
therefore not sufficient to exclude his application.
[4]
As
to prison conditions in the United States, the Board found that U.S. prison
conditions can be unacceptably harsh and that mistreatment of prisoners is
unfortunately too common. Despite this finding the Board found that adequate
state protection was available to him.
[5]
The
Board went on to find that, in respect of the s. 97 claim, the mistreatment that
the Applicant suffered was partly at the hands of other inmates and partly “institutional”.
Since the only institution at issue was the Indiana state prison,
the reference suggests state involvement in his mistreatment.
[6]
The
Board then concluded that there was adequate state protection to address abuses
by state officials including an ombudsman, his own counsel (generally a public
defender) and human rights groups.
[7]
A
recurring theme of the Applicant’s oral argument is that prison conditions for
himself and others with physical and psychiatric conditions were so egregious
as to constitute cruel and unusual punishment. As to the Applicant’s
personalized claim of torture and cruel and unusual punishment, the Board only
concludes that incarceration as punishment for criminal offences is not cruel
or unusual.
II. ANALYSIS
[8]
The
Applicant raises a number of issues including whether he was singled out for
persecution, errors of law in considering whether torture or cruel and unusual
punishment had been inflicted, and error in concluding state protection was
available. Since this matter can be disposed of on the issue of procedural
fairness and the matter will be reheard, no comment will be made on these other
issues.
[9]
On
the day of the Applicant’s hearing, he had intended to call at least one
witness from the Schizophrenic Society of Alberta. Since the Applicant did not
believe that his witness had arrived in time for the hearing, he advised the
Board at the immediately preceding pre-hearing conference that he had no
witnesses.
[10]
When
the Board’s hearing opened to the public, the Applicant’s witness was in
attendance. The Board refused to hear the witness because the Applicant had
indicated at the hearing that he would not be calling a witness. The Board did,
at the conclusion of the hearing, allow the witness to speak briefly but
indicated that his comments would not be considered by the Board in rendering
its decision.
[11]
With
due respect to the Board, this decision is an obvious denial of natural justice
and fairness. The reasons for not calling a witness were explained, the arrival
of the witness was unexpected and it was unfair to deny this evidence because
the Applicant was mistaken about whether his witness was available.
[12]
There
was no issue of prejudice advanced by the Respondent and it is impossible to
discern any other legitimate reason for refusing to hear the testimony. It was
an unreasonable exercise of discretion especially coupled with allowing the
witness to speak but refusing, in advance of hearing what was said, to consider
the witness’ comments.
[13]
The
Respondent acknowledges that a breach of natural justice occurred but contends
that the evidence would have made no difference because the witness was from
the Schizophrenic Society of Alberta and the Applicant is not schizophrenic.
The Respondent argues that the breach of natural justice would have no effect,
the decision would be the same – the result is inevitable.
[14]
The
difficulty with the Respondent’s position is that the witness, in an affidavit
filed in this judicial review, says that he intended to address the Board on
the nature of bi-polar disorder, the efficacy of medications in treating this
disorder and the state of the mentally ill held in jails in Canada and the
United States. These are subjects potentially relevant to the Applicant’s claim
of mistreatment in the Indiana state prison.
[15]
It
is not possible to conclude that the Applicant’s case is hopeless and that the
breach of natural justice should be ignored because the result is inevitably
the refusal of the application for protection (as occurred in cases such as Gonzalez
v. Canada (Minister of Employment and Immigration) (F.C.A.), [1991] F.C.J.
No. 408 (QL); Konadu v. Canada (Minister of Employment and Immigration)
(F.C.A.), [1991] A.C.F. No. 330 (QL)). As noted in Mobil Oil Canada Ltd.
v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202, where
the result was inevitable, it is a rare case where breaches of natural justice
can or, more importantly, should be ignored.
[16]
In
concluding that this case is not so weak as to be hopeless, the Court is not
suggesting that the case has merit (even if that were within the Court’s
jurisdiction to say) nor does it suggest that the Board’s other conclusions are
necessarily flawed. However, where a breach of natural justice occurs, absent a
clear indication that a rehearing would be no more than an exercise of form
over substance, the Court should err on the side of upholding procedural
fairness.
III. CONCLUSION
[17]
For
these reasons, this judicial review will be granted, the original Board
decision quashed and the matter referred back to a differently constituted
panel of the Board for a new determination.
[18]
The
Applicant was self-represented here and did a commendable job on his own
behalf. It is acknowledged that the Applicant suffers from a bi-polar disorder,
a common feature of which is anti-social or inappropriate behaviour. The Court
does not have the power to order that counsel be appointed for the Applicant,
but the Court trusts that Alberta legal aid officials
would be open to considering a new application for the appointment of counsel
for this Applicant.
[19]
There
is no question for certification.
JUDGMENT
IT IS ORDERED THAT this
application for judicial review will be granted, the original Board decision
quashed and the matter referred back to a differently constituted panel of the
Board for a new determination.
“Michael
L. Phelan”
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