Date: 20080729
Docket: T-2239-07
Citation: 2008 FC 909
Ottawa, Ontario, July 29,
2008
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
CHRISTINE
SIMONE FLETCHER
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Ms.
Fletcher wants to become a citizen of Canada. Her present
circumstances are such that she has not been physically present in Canada for at least
three of the previous four years preceding her application. She believed that
her connections to Canada would overcome the lack of physical presence.
The Citizenship Judge disagreed. In conducting the hearing the Judge made
comments that lead Ms. Fletcher to believe that he had made up his mind before
she had the opportunity to present evidence of her connections and make
submissions. She asks that the decision of the Judge be set aside and that she
be permitted a rehearing before another.
BACKGROUND
[2]
Ms.
Fletcher is a citizen of Jamaica and became a permanent
resident of Canada on October
2, 2002. She applied for citizenship on February 17, 2006. The relevant
period to determine whether she met the residency requirement under paragraph
5(1)(c) of the Citizenship Act, R.S.C. 1985, c. C-29, is from February
17, 2002 to February 17, 2006. The Citizenship Judge found that the Applicant
had been present 575 days, absent 659 days since the date she became a
permanent resident, and that she was short 520 days of the required 1,095 days
of residency during the period. It was acknowledged by counsel for the
Respondent that the Citizenship Judge erred in failing to include the time Ms.
Fletcher spent in Canada in the four year period prior to becoming a
permanent resident. Regardless, she failed to meet the required 1,095 days in Canada required under
the Act.
[3]
Ms.
Fletcher raises two grounds on this appeal. She submits that the decision
rejecting her application for citizenship ought to be overturned because:
a. she was
denied procedural fairness as a result of comments made by the Citizenship Judge
which raise a reasonable apprehension of bias; and
b. the Citizenship
Judge failed to apply the proper test of residency when determining whether she
had established the period of residency in Canada required for
citizenship.
ANALYSIS
[4]
Ms.
Fletcher, in her affidavit filed in support of her appeal, states that the
following comments were made by the Citizenship Judge:
a. Upon entering
the hearing room with her counsel, the Citizenship Judge commented to her
counsel that he “always” submitted applications that the Citizenship Judge was
unable to grant;
b. Prior to the
commencement of the hearing, the Citizenship Judge said that the Applicant “had
applied prematurely” and should have waited until she had the requisite number
of days in order to apply, but that he would proceed with the hearing and
review the file with her and her counsel present; and
c. After
reviewing her connections to Canada and just prior to the conclusion of the
hearing, the Citizenship Judge stated that he thought she would make a good
citizen, however because she had more “outs” than “ins”, if he were to approve
the application, “the Minister would later reverse that decision”.
There is no written record of the
proceeding before the Citizenship Judge but the Respondent did not challenge
that these statements were made.
[5]
Ms.
Fletcher, in her affidavit, says: “I felt it was clear that his decision had
been made before my hearing had commenced”. She submits that these comments,
individually and collectively, provide a foundation for the conclusion that there
was a reasonable apprehension of bias on the part of the Citizenship Judge in that
he had pre-determined the result of her application before the hearing commenced.
[6]
Allegations
of an apprehension of bias must be examined within the context of challenges to
the right to procedural fairness. As the Supreme Court of Canada noted in Baker
v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817, “the
more important the decision is to the lives of those affected and the greater
its impact on that person or those persons, the more stringent the procedural
protections that will be mandated”. I can think of few processes more important
to the lives of immigrants to Canada than the citizenship process.
[7]
The
other four factors discussed in Baker – the closeness to the judicial
process, the nature of the statutory scheme, the expectations of the parties,
and the choices of procedure made by the decision-maker - do not suggest that
in the citizenship process the applicant is to be afforded less than a high
degree of procedural fairness.
[8]
The
burden of showing that there is a reasonable apprehension of bias is on the
party who alleges it. While that burden may be high, the Court must not
hesitate to find that the allegation has been made out where the facts warrant,
even in circumstances where the result reached was reasonable and appropriate
based on the facts. The issue is a party’s right to receive procedural
fairness; not the decision reached.
[9]
The
Respondent admits that some of the comments were inappropriate, but submits
that others were mere statements of fact and do not demonstrate a reasonable
apprehension of bias. Counsel candidly acknowledged that the first comment
made at the commencement of the hearing might reasonably lead a person to the
view that the Judge had already determined the outcome but submitted that, as
the Citizenship Judge carried on with the hearing and considered the evidence
and submissions presented, these would be allayed. The Applicant argues that
the last comment of the Judge effectively undoes any ameliorating effect the
conduct of the hearing would have had.
[10]
The
Respondent also submits that in failing to raise her concerns regarding her
apprehension of bias at the earliest opportunity, the Applicant had impliedly
submitted to the jurisdiction of that judge and effectively waived a right to
subsequently raise allegations of apprehended bias: Re Human Rights
Tribunal and Atomic Energy of Canada Limited, [1986] 1 F.C. 103 (F.C.A.) at
pp. 110 and 113; Cougar Aviation Ltd. v. Canada (Minister of
Public Works and Government Services), [2000] F.C.J. No. 1946
(F.C.A.) at para. 43; Frenette v. Canada (Attorney
General),
2004 FC 879 at para. 30; Bouaouni v. Canada (Minister of
Citizenship and Immigration), 2003 FC 1211 at para. 19; Ranganathan
v. Canada (Minister of
Citizenship and Immigration), 2003 FC 1367 at paras. 18-20; Cota v. Canada (Minister of
Citizenship and Immigration), [1999] F.C.J. No. 872 (T.D.) at para. 26;
and Bassila v. Canada, 2003 FCA 276 at para. 10.
[11]
The
Applicant submits that those cases are distinguishable on their facts. She
argues that one must distinguish between allegations of institutional bias, as
in the Human Rights Tribunal decision, and attitudinal bias, which is
claimed in this case. Further, she submits, one must consider the statements
made within the context of the procedure which, in this instance is highly
informal and of short duration.
[12]
The
Supreme Court of Canada has indicated that the question to be asked when
assessing if there is a reasonable apprehension of bias is whether the litigant
would think that it was more likely than not that the decision-maker, whether
consciously or unconsciously, would not decide fairly.
… the 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. In the words of
the Court of Appeal, that 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 Mr.
Crowe [the Chairman], whether consciously or unconsciously, would not decide
fairly." (Committee for Justice and Liberty v. Canada (National Energy
Board), [1978] 1 S.C.R. 369 at 394).
[13]
In
my view, the comments of the Citizenship Judge in this case arguably do create
a reasonable apprehension of bias.
[14]
The
first comment that counsel “always” brings cases to the Citizenship Court Judge
where citizenship cannot be granted, might well cause a reasonable person to
think that her application had been pre-determined. The Respondent submits
that the Judge was merely expressing his preliminary view of the matter before
him and that he is obligated under the scheme of the Act to review the
application file prior to the hearing. Thus, it is argued, it is not
surprising or unexpected that he would have formed some preliminary opinion on
the merit of the application.
[15]
While
I agree that the Citizenship Judge is required to review the file before the
meeting with an applicant, and he will have undoubtedly formed some impression
of the merits of the application, the statement made in this case, in my view,
goes too far. The statement is embarrassing and probably unfair to counsel. More
importantly, it would lead a reasonable person hearing it to conclude that the
evidence to be lead and submissions to be made by counsel would not matter at
all, as this counsel always loses in front of this judge. In my view, this
comment, standing alone, would reasonably lead an applicant for citizenship to
the view that, like Don Quixote, she would be tilting at windmills in trying to
convince this judge of the merit of her application.
[16]
The
other comments complained of could serve to reinforce that perception.
However, standing alone, I cannot find that the subsequent comments are likely
to lead to a reasonable apprehension of bias and had the first comment not been
made, I doubt that they would have been taken as anything other than a comment
that the Applicant needed to wait until she had more days of physical residence
in Canada, coupled with a positive comment as to her personal qualities.
[17]
The
law requires that allegations of bias be made promptly, whether they are
institutional, as in the case of the Human Rights Tribunal case, or
attitudinal, as in this case and as in the Bassila case. This procedure
permits the Judge to recuse him or herself and have the matter referred to
another decision-maker and avoids an unnecessary waste of Court time and
resources. Because these objections were not raised before the Citizenship
Judge, the Applicant may not raise them now. Nonetheless, the comments of the
Judge were, in my view, inappropriate and should not have been said.
[18]
The
term "residence" has been given different interpretations by this
Court. One involves actual physical presence in Canada for a total of
three years, calculated on the basis of a strict counting of days (Pourghasemi
(Re), [1993] F.C.J. No. 232 (T.D.)). The others involve a less stringent
requirement of physical presence so long as the applicant's connection to Canada remains strong.
The
Citizenship Judge in this case applied the strictest of the tests for
residency, the Pourghasemi test that requires a physical presence in Canada and involves
a strict counting of days. The fact that the Judge listened to and considered
the Applicant’s ties to Canada notwithstanding she failed to have sufficient
actual presence in the country, suggests that he was open to be persuaded, had
the evidence been sufficient, to use one of the lesser residency tests.
However, the fact remains that he did not – he chose to use the stricter test.
[19]
The
Citizenship Judge is entitled to considerable deference and his decision is
reviewable on the standard of reasonableness. In the circumstances before him
and given the jurisprudence of this Court, his decision cannot be said to have
been unreasonable. Accordingly, this appeal is dismissed.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
this appeal is dismissed.
“Russel W. Zinn”
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