Docket: IMM-6354-14
Citation: 2015 FC 808
Ottawa, Ontario,
June 30, 2015
PRESENT: The Honourable Mr. Justice Brown
BETWEEN:
MARTIN LUTHER THOMPSON
Applicant
and
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
Respondent
JUDGMENT AND REASONS
[1]
This is an application for judicial review by
Martin Luther Thompson [the Applicant] under subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 of a decision by the Immigration
and Refugee Board of Canada, Immigration Appeal Division [IAD], dated July 23,
2014, wherein the IAD dismissed the Applicant’s removal order appeal.
[2]
The Applicant was born on October 29, 1985. He
is a citizen of Jamaica. The Applicant came to Canada in August 1996, while he
was 10 years old, and has never returned to Jamaica since. He became a
permanent resident on March 20, 2003. The Applicant has his mother,
step-father, younger brother, grandmother and two aunts in Canada. He has no
remaining family in Jamaica. The Applicant has a daughter who is a Canadian
citizen. He is engaged to a Canadian citizen who also has a daughter. Together,
they were expecting a son in January 2015 when the Applicant swore his
affidavit in support of this application.
[3]
As a result of a criminal conviction, the
Applicant lost his permanent resident status and a deportation order was issued
against him on October 14, 2011 by a member of the Immigration Division of the
Immigration and Refugee Board of Canada. The Applicant appealed the issuance of
the deportation order to the IAD.
[4]
The Applicant was unrepresented before the IAD.
Present at the hearing was the counsel for the Minister of Public Safety and
Emergency Preparedness [the Respondent]. The Applicant who had not previously
advised the IAD who would be giving evidence on his behalf told the IAD that in
addition to his own testimony, he wanted his mother and his girlfriend to give
evidence on his behalf. However, when his mother finished her evidence, the IAD
advised him that he had ten minutes left to present his evidence and asked if
he wished to call another witness. He decided to call his step-father, not the
girlfriend. When his step-father finished, the Applicant did not ask to call
his girlfriend, nor did he ask to have the hearing continue into the afternoon
or on another day to hear from her. He then summarized his case and the
Respondent made submissions. After the hearing and without previously asking for
permission to do so, the Applicant filed a letter from his girlfriend which
supported his claim.
[5]
On July 23, 2014, the IAD dismissed the
Applicant’s appeal of his deportation order. The Applicant filed an application
for leave and for judicial review of the IAD’s decision, which was granted on
March 18, 2015.
[6]
The Applicant has a very extensive criminal
record in Canada involving convictions for offences committed not only before
but also after the offence for which he was ordered removed. The conviction in
question arose out of a serious incident of domestic violence perpetrated on
his then girlfriend in 2008. He was charged with sexual assault, forcible
confinement, assault causing bodily harm, and two counts of failure to comply
with terms of recognizance (arising out of earlier convictions). Amongst other
violence perpetrated on the victim, the Applicant kicked her knee resulting in
displacement of her kneecap and tearing the ligaments and tendons around the
knee cap. An x-ray of her neck showed internal trauma from being choked. At the
time of arrest for the above-noted offences, the police noted that the Applicant
had a criminal record dating back to 2002 for 19 convictions including robbery,
forcible confinement, five assault convictions, one uttering threats, together
with firearms offences and numerous convictions for failure to attend court,
failure to comply with recognizance, failure to comply with terms of probation.
The only convictions shown as having occurred when he was under 18 were
convictions for failure to attend court (2002-2007). His record also shows two
robbery convictions and a forcible confinement conviction in 2004, when he was
19 years old. His mother, who testified on his behalf, was unaware of the full
extent of his criminal history.
[7]
As noted, the Applicant continued to commit and
be convicted for crimes after having been found inadmissible, and while still under
probation for the 2010 conviction. These offences were the same type of vicious
domestic violence but perpetrated against different women who were in
relationships with him. He was charged with assault causing bodily harm against
another girlfriend in 2012. The girlfriend was “badly
beaten. She suffered bruising about her body, and it appears that her ribs have
been broken. She is in severe discomfort and it pains her to breathe deeply. She
has had a laptop broken over her head.” He was also convicted on charges
arising out of a domestic violence incident that occurred later in 2010 (after
the subject conviction) in Nova Scotia. The victim was yet another girlfriend. He
was under probation relating to the 2010 Ontario convictions at the time. This
attack on his then girlfriend, a mother of twins, occurred while the victim was
holding a 5 month old child. He assaulted his victim numerous times between
August 10 and August 31, 2010; one of the assaults included punching her in the
face with sufficient force to cause her to fall down stairs. The Applicant did
not appear in court to contest charges and was convicted for failure to appear.
Supporting the IAD’s explicit findings that the Applicant failed to take
responsibility for his criminal actions, when questioned about the assault on
his then girlfriend in 2010 (leading to the inadmissibility proceedings), is
the following exchange:
Appellant: In my mind, it was a physical
altercation that went (sic) because I take full responsibility but it takes two
and…
Appellant: Well that’s what I mean like it
takes two, like we were both fighting. …
Appellant: She always has long nails, okay?
This girl stuck her fingers into my face and almost poked my eyes out with
about six scratches. By the time I could get to her she was running away. So
that’s how when I kicked for her legs that’s what happened…
However, the police report describes the
severe injuries suffered by the girlfriend (dislocated knee cap and torn
ligaments and tendons) and that the Applicant had kicked her, unprovoked, while
she was seated.
[8]
Other relevant factors were that the Applicant
was referred for counselling in domestic violence programs on numerous
occasions, but failed to attend. He completed one partner abuse response
program offered by the Catholic Family Services, but failed to attend a
scheduled anger management program and other programs. Despite his length of
time in Canada, the Applicant held hardly any employment. He had no assets.
[9]
After considering the Applicant’s evidence, the
seriousness of his criminal record, his behavior in dealing with the justice
system, the possibility of rehabilitation, his lengthy stay in Canada and his
establishment here, his family in Canada and dislocation that the removal may
cause, as well as the hardship caused to him by the removal, the IAD found,
taking into consideration the best interests of the child, that there were
insufficient humanitarian and compassionate grounds to allow the appeal. The
IAD found that there were more significant negative factors which, taken
together, outweighed the factors which the IAD found to be at best neutral
factors. The IAD also found the Applicant would likely re-offend.
[10]
The primary issues on judicial review were
whether the Applicant was denied procedural fairness by the IAD because his
girlfriend was not called, and because the IAD rejected the subsequent filing
of a letter from her.
[11]
In Dunsmuir v New Brunswick, 2008 SCC 9
at paras 57, 62 [Dunsmuir], the Supreme Court of Canada held that a
standard of review analysis is unnecessary where “the
jurisprudence has already determined in a satisfactory manner the degree of
deference to be accorded with regard to a particular category of question.” The
present case raises an issue of procedural fairness, reviewable under the
correctness standard of review: Canada (Minister of Citizenship and
Immigration) v Khosa, 2009 SCC 12 at para 43; Sketchley v Canada (AG),
2005 FCA 404 at paras 53-55. In Dunsmuir at para 50, the Supreme Court
of Canada explained what is required of a court reviewing on the correctness
standard of review:
When applying the correctness standard, a
reviewing court will not show deference to the decision maker’s reasoning
process; it will rather undertake its own analysis of the question. The analysis
will bring the court to decide whether it agrees with the determination of the
decision maker; if not, the court will substitute its own view and provide the
correct answer. From the outset, the court must ask whether the tribunal’s
decision was correct.
[12]
Self-represented claimants are not always or
necessarily entitled to a higher degree of procedural fairness: Martinez
Samayoa v Canada (Minister of Citizenship and Immigration), 2012 FC 441 at
para 6 [Martinez]; Turton v Canada (Minister of Citizenship and
Immigration), 2011 FC 1244; Adams v Minister of Citizenship and
Immigration, 2007 FC 529 at paras 24-25; Agri v Canada (Citizenship and
Immigration), 2007 FC 349 at paras 11-12. However, while the IAD is to be
shown much deference in its choice of procedure, and while it is not obligated
to act as counsel for unrepresented parties, it nevertheless has a duty to
ensure a fair hearing, and the content of such procedural rights is
context-dependent and is to be determined on a case-by-case basis: Singh
Dhaliwal v Canada (Minister of Citizenship and Immigration), 2011 FC 201 at
paras 13-14; Martinez at para 7; Kamtasingh v Canada (Minister of Citizenship
and Immigration), 2010 FC 45 at paras 9-10, 13; Law v Canada (Minister
of Citizenship and Immigration), 2007 FC 1006 at para 14-19; Nemeth v
Canada (Minister of Citizenship and Immigration), 2003 FCT 590 at para 13.
[13]
The content of the Applicant’s right to a fair
hearing includes the opportunity to present his views and evidence fully and
have them considered by the IAD: Baker v Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817 at para 22; Wang v Canada (Minister of
Citizenship and Immigration), 2007 FC 531 at paras 13-15, 19.
[14]
As to calling the girlfriend, I am unable to
find this constituted a denial of procedural fairness. The fact is that the
Applicant stated at the outset that he had two witnesses to call, his mother
and his girlfriend. After his mother finished giving evidence, the IAD asked if
he wished to call anyone else, and for reasons of his own choosing, he called
his step-father instead of his girlfriend. The IAD, correctly in my view given the
Applicant’s earlier representation regarding his witnesses, then called for
submissions. The Applicant did not ask to call the girlfriend, nor did he ask
the IAD to sit additional time to hear his girlfriend. This does not constitute
procedural unfairness. The Applicant wishes now that he had called his
girlfriend, but he did not make any such request before the IAD. He was under no
pressure as to who to call or who not to call.
[15]
I accept the jurisprudence cited above that a
tribunal is not obliged to act as an attorney for a party who has chosen to
appear without counsel. The IAD did not need to point out all possible rights the
Applicant may have had. As stated by the Federal Court of Appeal, a party who
chooses to represent himself must accept the consequences: see Wagg v R,
[2004] FC 206 (FCA) per Pelletier J.A., at para 25, 31, adopting dicta from the
Ontario Court of Appeal which states:
… Fairness does not demand that the
unrepresented litigant be able to present his case as effectively as a
competent lawyer. Rather, it demands that he have a fair opportunity to present
his case to the best of his ability. Nor does fairness dictate that the
unrepresented litigant have a lawyer’s familiarity with procedures and forensic
tactics.
[16]
Nor does the IAD’s refusal to accept the
girlfriend’s letter amount to procedural unfairness. The Applicant argues it
was rejected on technicalities, but I disagree. There were several defects in
the letter, as identified by the IAD in the following passage:
[T]he Panel did not accept post-hearing
evidence, as the letter is un-dated, the witness has had the benefit of
discussing the issues with the appellant, since the hearing, and no request for
post hearing evidence was made, in a timely manner.
[17]
In my view the IAD’s decision not to accept the
girlfriend’s letter was correct. The fatal flaw in the Applicant’s request is
that the girlfriend and the Applicant had the opportunity to discuss issues
that arose in the hearing, and could tailor her letter accordingly. The IAD
correctly asked the girlfriend to leave the hearing room to prevent
contamination of her evidence as a result of her hearing what was being said. It
would be inconsistent for the IAD, having ordered the Applicant’s girlfriend to
leave during the hearing, to then allow her to file evidence after the hearing since
by then she might have learned what was said.
[18]
The IAD afforded the Applicant with several indulgences.
It allowed him to lead testimonial evidence notwithstanding his failure to
comply with the rules requiring 20 days notice of their identities and other
information designed to allow the IAD to adequately schedule the hearing and to
allow the Respondent to prepare for it. The IAD also allowed the Applicant to
file documentary evidence that was walked in on the day of the hearing, again
without giving the IAD or the Respondent time to prepare or respond to it. It previously
had granted the Applicant’s request for an adjournment to obtain different
counsel, although he subsequently decided not to do so. In my view the IAD gave
this Applicant “every possible and reasonable leeway to
present [his] case in its entirety”, and respected the principle that “strict and technical rules should be relaxed for
unrepresented litigants” (Da Costa Soares v Canada (Minister of
Citizenship and Immigration), 2007 FC 190 at para 22; see also Caceres v
Canada (Minister of Citizenship and Immigration), 2004 FC 843 at paras
22-23).
[19]
The Applicant also raised what I consider to be relatively
minor errors in the IAD’s reasons concerning the visits and expenses paid in
respect of his daughter. He also alleged inadequate consideration of best
interests of the children. These are assessed on the standard of
reasonableness. Insofar as the best interests of the children are concerned,
the IAD considered this matter on the evidence before it. In my view the IAD’s
decision read as a whole falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law as required by Dunsmuir.
[20]
As noted already, there were no procedural
errors in this case.
[21]
In the result, this application for judicial
review must be dismissed.
[22]
Neither party proposed a question to certify,
and none arises.
JUDGMENT
THIS COURT’S JUDGMENT is that this
application for judicial review is dismissed, no question is certified, and
there is no order as to costs.
"Henry S. Brown"
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