IMMIGRATION LAW REPORTER Third Series/Troisi`Eme S´Erie Recueil De Jurisprudence En Droit De L’Immigration

IMMIGRATION LAW REPORTER Third Series/Troisi`eme s´erie Recueil de jurisprudence en droit de l’immigration

VOLUME 95 (Cited 95 Imm. L.R. (3d))

EDITORS-IN-CHIEF/REDACTEURS´ EN CHEF Cecil L. Rotenberg, Q.C. Mario D. Bellissimo, LL.B. Barrister & Solicitor Ormston, Bellissimo, Rotenberg Don Mills, Ontario Toronto, Ontario Certified Specialist Certified Specialist

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[Indexed as: Harkat, Re] In the Matter of a certificate signed Pursuant to subsection 77(1) of the Immigration and Refugee Protection Act, S.C. 2001, c.27, as amended (the “Act”) In the Matter of the referral of that Certificate to the Federal Court of Canada Pursuant to subsection 77(1) of the Act In the Matter of Mohammed Harkat Federal Court Simon No¨el J. Heard: September 10-12, 15-19, 2008; November 3-6, 2008; Novem- ber 23-26, 2009; December 1-2, 2009; January 18-22, 25-29, 2010; February 1-5, 8-12, 2010; March 8-11, 30-31, 2010; May 26-27, 30- 31, 2010; June 1-2, 2010 Judgment: December 9, 2010* Docket: DES-5-08, 2010 CF 1243, 2010 FC 1243 Andre Seguin, David Tyndale, Bernard Assan, Amina Riaz, Gordon Lee, for Ministers Matthew Webber, Norman Boxall, Leonard Russomanno, for Mohamed Harkat Paul Cavalluzzo, Paul Copeland, Special Advocates Immigration and citizenship –––– Exclusion and removal — Inadmissible classes — Security — Terrorists –––– Applicant was citizen of Algeria who was deemed inadmissible to Canada on security grounds — Applicant was detained and later released under conditions; proceedings were started against applicant — Part of evidence before court consisted of summaries of conversations based on notes and transcripts which had been destroyed by Canadian Security Intelligence Service (CSIS) per policy — Accused brought motion to have conversation summaries excluded from evidence and, in alternative, for stay of proceedings — Motion dismissed — Substantial disclosure was given with regard to summaries, and source documents were destroyed subsequent to effort to preserve content — Was in best interests of justice that case was decided on all evidence adduced — Destruction of originals by CSIS did not cause prejudice constituting breach

*A corrigendum issued by the Court on February 25, 2011 has been incorporated herein. 2 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d) of Charter of Rights and Freedoms — Stay of proceedings was not appropriate remedy, as cumulative effect of different factors did not result in abuse of process — Submissions made by applicant dwelled on past and alleged breaches, most of which had been remedied. Evidence –––– Admissibility — Discretion to exclude — Prejudice –––– Applicant was citizen of Algeria who was deemed inadmissible to Canada on security grounds — Appli- cant was detained and later released under conditions; proceedings were started against applicant — Part of evidence before court consisted of summaries of conversations based on notes and transcripts which had been destroyed by Canadian Security Intelligence Ser- vice (CSIS) per policy — Accused brought motion to have conversation summaries excluded from evidence and, in alternative, for stay of proceedings — Motion dismissed — Substantial disclosure was given with regard to summaries, and source documents were destroyed subsequent to effort to preserve content — Was in best interests of justice that case was decided on all evidence adduced — Destruction of originals by CSIS did not cause prejudice constituting breach of Charter of Rights and Freedoms — Stay of proceedings was not appropriate remedy, as cumulative effect of different factors did not result in abuse of process — Submissions made by applicant dwelled on past and alleged breaches, most of which had been remedied. Cases considered by Simon No¨el J.: Al Yamani v. Canada (Minister of Citizenship & Immigration) (2003), 2003 CarswellNat 4143, 2003 FCA 482, 314 N.R. 347, 246 F.T.R. 320 (note), 2003 CarswellNat 4621, 2003 CAF 482, [2003] F.C.J. No. 1931 (F.C.A.) — considered Almrei, Re (2009), 2009 CF 1263, 2009 CarswellNat 4286, 2009 FC 1263, 355 F.T.R. 222 (Eng.), 2009 CarswellNat 5657, 86 Imm. L.R. (3d) 212, [2009] F.C.J. No. 1579, [2009] A.C.F. No. 1579 (F.C.) — followed Almrei v. Canada (Minister of Citizenship & Immigration) (2005), 2005 FCA 54, 2005 CarswellNat 319, 330 N.R. 73, 45 Imm. L.R. (3d) 163, [2005] 3 F.C.R. 142, 2005 CAF 54, 2005 CarswellNat 869, 251 D.L.R. (4th) 13, [2005] F.C.J. No. 213 (F.C.A.) — referred to Blencoe v. British Columbia (Human Rights Commission) (2000), 2000 SCC 44, 2000 CarswellBC 1860, 2000 CarswellBC 1861, 3 C.C.E.L. (3d) 165, (sub nom. British Columbia (Human Rights Commission) v. Blencoe) 38 C.H.R.R. D/153, 81 B.C.L.R. (3d) 1, 190 D.L.R. (4th) 513, [2000] 10 W.W.R. 567, 23 Admin. L.R. (3d) 175, 2000 C.L.L.C. 230-040, 260 N.R. 1, (sub nom. British Columbia (Human Rights Commission) v. Blencoe) 77 C.R.R. (2d) 189, 141 B.C.A.C. 161, 231 W.A.C. 161, [2000] 2 S.C.R. 307, [2000] S.C.J. No. 43, REJB 2000-20288 (S.C.C.) — considered Canada (Minister of Citizenship & Immigration) v. Tobiass (1997), 118 C.C.C. (3d) 443, 151 D.L.R. (4th) 119, 10 C.R. (5th) 163, 1997 CarswellNat 1385, 1997 CarswellNat 1386, 1 Admin. L.R. (3d) 1, 131 F.T.R. 230 (note), [1997] 3 S.C.R. 391, 40 Imm. L.R. (2d) 23, 14 C.P.C. (4th) 1, 218 N.R. 81, [1997] S.C.J. No. 82, REJB 1997-02452 (S.C.C.) — considered Charkaoui, Re (2004), 42 Imm. L.R. (3d) 165, 126 C.R.R. (2d) 298, 2004 CAF 421, 2004 CarswellNat 4495, 2004 FCA 421, 247 D.L.R. (4th) 405, [2005] 2 F.C.R. 299, 2004 CarswellNat 4849, 328 N.R. 201, [2004] F.C.J. No. 2060 (F.C.A.) — considered Charkaoui, Re (2007), 54 Admin. L.R. (4th) 1, (sub nom. Charkaoui v. Canada (Minister of Citizenship & Immigration)) 152 C.R.R. (2d) 17, 2007 SCC 9, 44 C.R. (6th) 1, 59 Harkat, Re 3

Imm. L.R. (3d) 1, 2007 CarswellNat 325, 2007 CarswellNat 326, 358 N.R. 1, 276 D.L.R. (4th) 594, (sub nom. Charkaoui v. Canada) [2007] 1 S.C.R. 350, [2007] S.C.J. No. 9 (S.C.C.) — considered Charkaoui, Re (2008), 2008 CarswellNat 1898, 2008 CarswellNat 1899, 2008 SCC 38, (sub nom. Charkaoui v. Canada (Minister of Citizenship & Immigration)) 175 C.R.R. (2d) 120, 294 D.L.R. (4th) 478, 58 C.R. (6th) 45, 376 N.R. 154, (sub nom. Charkaoui v. Canada (Minister of Citizenship and Immigration)) [2008] 2 S.C.R. 326, 70 Imm. L.R. (3d) 1, [2008] S.C.J. No. 39 (S.C.C.) — considered Harkat, Re (2004), 2004 CarswellNat 4688, 2004 FC 1717, 2004 CF 1717, 2004 Car- swellNat 5369, 259 F.T.R. 98 (Eng.), 48 Imm. L.R. (3d) 211, 125 C.R.R. (2d) 319, [2005] 2 F.C.R. 416, [2004] F.C.J. No. 2101 (F.C.) — referred to Harkat, Re (2005), 45 Imm. L.R. (3d) 65, 2005 CF 393, 2005 CarswellNat 2504, 2005 CarswellNat 737, 2005 FC 393, 261 F.T.R. 52, [2005] F.C.J. No. 481 (F.C.) — considered Harkat, Re (2005), 2005 FCA 285, 2005 CarswellNat 2705, 2005 CAF 285, 340 N.R. 286, 2005 CarswellNat 4769 (F.C.A.) — referred to Harkat, Re (2006), 2006 CarswellNat 62, 2006 CarswellNat 63, 350 N.R. 397 (note) (S.C.C.) — referred to Harkat, Re (2008), 2008 CarswellNat 5334, 2009 FC 203, 339 F.T.R. 60 (Eng.) (F.C.) — considered Harkat, Re (2009), 2009 FC 167, 2009 CarswellNat 436, 80 Imm. L.R. (3d) 89, 339 F.T.R. 92 (Eng.), [2009] F.C.J. No. 228 (F.C.) — referred to Harkat, Re (2009), 2009 FC 553, 2009 CarswellNat 1681, 80 Imm. L.R. (3d) 252, 345 F.T.R. 143 (Eng.) (F.C.) — referred to Harkat, Re (2009), 2009 CarswellNat 600, 2009 FC 241, 339 F.T.R. 104 (Eng.) (F.C.) — referred to Harkat, Re (2009), 197 C.R.R. (2d) 286, 2009 FC 659, 2009 CarswellNat 1925, 2009 CarswellNat 4767, 2009 CF 659, 345 F.T.R. 179 (Eng.), [2010] 3 F.C.R. 169, 82 Imm. L.R. (3d) 24 (F.C.) — referred to Harkat, Re (2009), 351 F.T.R. 313 (Eng.), 2009 FC 1008, 2009 CarswellNat 3051, 2009 CarswellNat 4383, 2009 CF 1008 (F.C.) — referred to Harkat, Re (2009), 198 C.R.R. (2d) 275, 2009 CF 1050, 2009 CarswellNat 5823, 2009 FC 1050, [2009] F.C.J. No. 1242, 312 D.L.R. (4th) 464, 350 F.T.R. 143 (Eng.), 2009 CarswellNat 3192 (F.C.) — referred to Harkat, Re (2010), 2010 CF 1241, 2010 FC 1241, 2010 CarswellNat 4699, 2010 Car- swellNat 4700 (F.C.) — considered Harkat, Re (2010), 2010 CF 1242, 2010 FC 1242, 2010 CarswellNat 4714, 2010 Car- swellNat 4715 (F.C.) — referred to Jaballah, Re (2010), 88 Imm. L.R. (3d) 268, 2010 CarswellNat 1174, 2010 CF 224, 363 F.T.R. 160 (Eng.), 2010 FC 224, 2010 CarswellNat 448 (F.C.) — considered R. v. Bjelland (2009), 194 C.R.R. (2d) 148, 2009 CarswellAlta 1110, 2009 CarswellAlta 1111, 2009 SCC 38, 67 C.R. (6th) 201, 460 A.R. 230, 462 W.A.C. 230, [2009] 2 S.C.R. 651, 391 N.R. 202, 246 C.C.C. (3d) 129, 10 Alta. L.R. (5th) 1, 309 D.L.R. (4th) 257, [2009] 10 W.W.R. 387, [2009] S.C.J. No. 38 (S.C.C.) — considered R. v. Carosella (1997), 1997 CarswellOnt 85, 1997 CarswellOnt 86, 2 B.H.R.C. 23, 112 C.C.C. (3d) 289, 98 O.A.C. 81, 4 C.R. (5th) 139, [1997] 1 S.C.R. 80, 31 O.R. (3d) 4 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d)

575 (headnote only), 142 D.L.R. (4th) 595, 207 N.R. 321, 41 C.R.R. (2d) 189, [1997] S.C.J. No. 12 (S.C.C.) — considered R. v. Conway (1989), [1989] 1 S.C.R. 1659, 96 N.R. 241, 34 O.A.C. 165, 49 C.C.C. (3d) 289, 70 C.R. (3d) 209, 40 C.R.R. 1, 1989 CarswellOnt 94, 1989 CarswellOnt 962, EYB 1989-67460, [1989] S.C.J. No. 70 (S.C.C.) — referred to R. v. Grant (2009), 193 C.R.R. (2d) 1, 2009 SCC 32, 2009 CarswellOnt 4104, 2009 Cars- wellOnt 4105, 253 O.A.C. 124, 82 M.V.R. (5th) 1, 245 C.C.C. (3d) 1, 66 C.R. (6th) 1, [2009] 2 S.C.R. 353, 391 N.R. 1, 309 D.L.R. (4th) 1, [2009] A.C.S. No. 32, [2009] S.C.J. No. 32 (S.C.C.) — considered R. v. Jewitt (1985), 1985 CarswellBC 743, [1985] 2 S.C.R. 128, [1985] 6 W.W.R. 127, 20 D.L.R. (4th) 651, 61 N.R. 159, 21 C.C.C. (3d) 7, 47 C.R. (3d) 193, 1985 Car- swellBC 813, [1985] S.C.J. No. 53 (S.C.C.) — referred to R. v. La (1997), 44 C.R.R. (2d) 262, [1997] 2 S.C.R. 680, 8 C.R. (5th) 155, 1997 CarswellAlta 490, 1997 CarswellAlta 491, 148 D.L.R. (4th) 608, 200 A.R. 81, 146 W.A.C. 81, 213 N.R. 1, 116 C.C.C. (3d) 97, [1997] 8 W.W.R. 1, 51 Alta. L.R. (3d) 181, [1997] S.C.J. No. 30 (S.C.C.) — considered R. v. O’Connor (1995), [1996] 2 W.W.R. 153, 1995 CarswellBC 1098, 1995 CarswellBC 1151, [1995] 4 S.C.R. 411, 44 C.R. (4th) 1, 103 C.C.C. (3d) 1, 130 D.L.R. (4th) 235, 191 N.R. 1, 68 B.C.A.C. 1, 112 W.A.C. 1, 33 C.R.R. (2d) 1, EYB 1995-67073, [1995] S.C.J. No. 98 (S.C.C.) — considered R. v. Potvin (1993), 1993 CarswellOnt 112, 23 C.R. (4th) 10, 155 N.R. 241, 83 C.C.C. (3d) 97, [1993] 2 S.C.R. 880, 16 C.R.R. (2d) 260, 105 D.L.R. (4th) 214, 66 O.A.C. 81, 1993 CarswellOnt 985, EYB 1993-67509, [1993] S.C.J. No. 63 (S.C.C.) — referred to R. v. Regan (2002), [2002] 1 S.C.R. 297, 2002 CarswellNS 61, 2002 CarswellNS 62, 2002 SCC 12, 282 N.R. 1, 91 C.R.R. (2d) 51, 49 C.R. (5th) 1, 201 N.S.R. (2d) 63, 629 A.P.R. 63, 161 C.C.C. (3d) 97, 209 D.L.R. (4th) 41, [2002] S.C.J. No. 14, REJB 2002-27926 (S.C.C.) — referred to R. v. Scott (1990), 116 N.R. 361, 1 C.R.R. (2d) 82, 43 O.A.C. 277, 2 C.R. (4th) 153, 61 C.C.C. (3d) 300, [1990] 3 S.C.R. 979, 1990 CarswellOnt 65, 1990 CarswellOnt 1012, EYB 1990-67596, [1990] S.C.J. No. 132 (S.C.C.) — referred to Ruby v. Canada (Solicitor General) (2002), 2002 SCC 75, 2002 CarswellNat 3225, 2002 CarswellNat 3226, 99 C.R.R. (2d) 324, 219 D.L.R. (4th) 385, 295 N.R. 353, 7 C.R. (6th) 88, 22 C.P.R. (4th) 289, 49 Admin. L.R. (3d) 1, [2002] 4 S.C.R. 3, [2002] S.C.J. No. 73, REJB 2002-35620 (S.C.C.) — followed Toronto (City) v. C.U.P.E., Local 79 (2003), 232 D.L.R. (4th) 385, 9 Admin. L.R. (4th) 161, [2003] 3 S.C.R. 77, 17 C.R. (6th) 276, 2003 SCC 63, 2003 CarswellOnt 4328, 2003 CarswellOnt 4329, 311 N.R. 201, 2003 C.L.L.C. 220-071, 179 O.A.C. 291, 120 L.A.C. (4th) 225, 31 C.C.E.L. (3d) 216, [2003] S.C.J. No. 64, REJB 2003-49439 (S.C.C.) — considered United States v. Shulman (2001), 152 C.C.C. (3d) 294, 197 D.L.R. (4th) 69, [2001] 1 S.C.R. 616, 268 N.R. 115, 145 O.A.C. 201, 81 C.R.R. (2d) 245, 2001 SCC 21, 2001 CarswellOnt 962, 2001 CarswellOnt 963, 41 C.R. (5th) 100, [2001] S.C.J. No. 18, REJB 2001-23415 (S.C.C.) — referred to Valle Lopes v. Canada (Minister of Citizenship & Immigration) (2010), 367 F.T.R. 41 (Eng.), 2010 FC 403, 2010 CarswellNat 872, 6 Admin. L.R. (5th) 257, 88 Imm. L.R. (3d) 25, 2010 CF 403, 2010 CarswellNat 2631 (F.C.) — referred to Harkat, Re Simon No¨el J. 5

Statutes considered: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 Generally — referred to s. 1 — referred to s. 7 — considered s. 9 — referred to s. 10(c) — referred to s. 11(b) — referred to s. 24 — considered s. 24(1) — considered s. 24(2) — considered Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23 s. 12 — considered Criminal Code, R.S.C. 1985, c. C-46 Generally — referred to Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 77(1) — considered s. 77(2) — considered ss. 78-80 — referred to s. 83(1)(a) — referred to s. 84(2) — considered s. 85.1(1) [en. 2008, c. 3, s. 4] — referred to s. 85.1(2) [en. 2008, c. 3, s. 4] — referred to s. 85.1(3) [en. 2008, c. 3, s. 4] — referred to s. 85.1(4) [en. 2008, c. 3, s. 4] — referred to s. 85.4(1) [en. 2008, c. 3, s. 4] — referred to s. 85.4(2) [en. 2008, c. 3, s. 4] — referred to Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act, Act to amend the, S.C. 2008, c. 3 Generally — referred to

MOTION by applicant seeking exclusion of summaries of conversations from evidence or, alternately, stay of proceedings.

Simon No¨el J.: Introduction 1 The present reasons for order and order deal with a motion brought by Mr. Harkat, seeking the exclusion of summaries of conversations as evidence, based on the doctrine of abuse of process. In the alternative, a stay of proceedings is also being sought in consideration of a number of breaches which, when considered cumulatively, create such an effect as to require such a remedy (see Reply submissions on remedy pursuant to subsection 24(1) of the Charter, May 18, 2010, para. 28). In addition, the special advocates also submitted during the 6 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d)

closed hearings that a stay of proceeding should be based on their dissatisfaction with a number of measures taken by the Ministers to obtain information in relation to Mr. Harkat (see communications dated May 13, 2009, December 11, 2009, May 5, 2010, May 12, 2010 and September 1, 2010 which dealt in part on this issue). Since such determination is based on closed evidence, a specific set of reasons is issued as part of Annex A of these reasons, but, for national security purposes, is only available to those authorized to access such information. The remedies sought are denied. 2 As will be seen, a substantial portion of the relevant arguments made by Mr. Harkat have already been addressed in two other decisions, one dealing with the reasonableness of the certificate (Harkat, Re, 2010 FC 1241 (F.C.)), the other with the constitutional questions (Harkat, Re, 2010 FC 1242 (F.C.)). The summaries of conversations which Mr. Harkat seeks to exclude as evidence have been validated insofar as their content is concerned. Also, the new disclosure process with the participation of special advocates passed constitutional muster. Mr. Harkat alleges that some events or situations have given rise to Charter violations that call for a section 24(1) remedy. He is seeking remedies on an abuse of process theory. In these reasons, the Court will attempt not to repeat what has already been written on similar topics in the two other judgments, but some overlap might be inevitable.

History of Proceeding 3 A certificate stating that Mr. Harkat was inadmissible on security grounds (the “2008 Certificate”) was signed by the Minister of Public Safety and Emer- gency Preparedness and the Minister of Citizenship and Immigration and referred to the Federal Court under the new Immigration and Refugee Protection Act (the “New IRPA” or “IRPA”) legislation on February 22, 2008. 4 Previously, on December 10, 2002, the Solicitor General of Canada and the Minister of Citizenship and Immigration (“the Ministers”) had signed a certificate pursuant to then subsection 77(1) of the Immigration and Refugee Protec- tion Act (the “previous legislation”), in which they stated that they were of the opinion that Mohammed Harkat is a foreign national who is inadmissible to Canada on security grounds (the “2002 certificate”). In accordance with the legislation, he was arrested and detained. Mr. Harkat was released from detention on May 23, 2006 under conditions, which were reviewed periodically thereafter. 5 A hearing as to the reasonableness of the 2002 certificate was held before Justice Dawson in March 2005. Mr. Harkat challenged the constitutionality of sections 78 through 80 of the previous legislation on the grounds that it violated the principles of fundamental justice guaranteed by section 7 of the Canadian Charter of Rights and Freedoms (“the Charter”). Justice Dawson upheld the constitutionality of the security certificate process based on the Federal Court of Appeal’s decision in Charkaoui, Re, 2004 FCA 421 (F.C.A.). Justice Dawson Harkat, Re Simon No¨el J. 7

concluded that there were reasonable grounds to believe that Mr. Harkat had engaged in terrorism for a number of reasons, in particular by supporting terrorist activity as a member of the Bin Laden Network (“BLN”) (Harkat, Re, 2005 FC 393 (F.C.)). 6 Mr. Harkat appealed Justice Dawson’s ruling with respect to the constitutionality of the certificate proceeding. On September 6, 2005, the Federal Court of Appeal dismissed this appeal on the grounds that he had not shown any mani- fest error requiring a departure from Charkaoui, Re, supra, and Almrei v. Canada (Minister of Citizenship & Immigration), 2005 FCA 54 (F.C.A.), where the constitutionality of the same provisions of the former IRPA were upheld (see Harkat, Re, 2005 FCA 285 (F.C.A.)). Mr. Harkat sought leave to the Supreme Court, which was granted [2006 CarswellNat 62 (S.C.C.)]. 7 On February 23, 2007, the Supreme Court of Canada ruled that the disclosure procedure for certificates under the former IRPA violated section 7 of the Charter and declared the relevant provisions to be of no force or effect. Chief Justice McLachlin wrote that the disclosure made was such that the named person’s right to know and answer the case against him or her was not satisfied. The Court ruled that this violation could not be saved by section 1 of the Char- ter because it did not minimally impair the rights in question (Charkaoui, Re, 2007 SCC 9 (S.C.C.) (“Charkaoui #1”)). 8 The Supreme Court also declared that former IPRA subsection 84(2) governing applications for judicial release violated sections 9 and 10(c) of the Char- ter, because it did not provide for a timely detention review to foreign nationals as it did for permanent residents. 9 The Supreme Court suspended the declaration of invalidity of the impugned provisions of the previous legislation for one year, allowing Parliament to enact a constitutionally compliant legislation. As a result, Mr. Harkat remained subject to the 2002 security certificate and the conditions of release as imposed by Jus- tice Dawson on May 23, 2006. 10 On February 22, 2008, Bill C-3, an Act to amend the Immigration and Refu- gee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act (“Bill C-3” or the “New IRPA”), came into force in response to the ruling of the Supreme Court of Canada in Charkaoui #1. Bill C-3 made substantial modifications to the procedure governing the judicial review of certificates as well as applications for detention release in that context. These amendments included a new disclosure process of national security information and the addition of special advocates to represent the interest of the named persons during the closed hearings. Bill C-3 also eliminated the distinction between permanent residents and foreign nationals for the purposes of the judicial interim reviews of detention and release with conditions. The Ministers also sought the status quo of the conditions of release of Mr. Harkat. 8 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d)

11 On June 26, 2008, the Supreme Court of Canada rendered a second decision concerning the certificate process in Charkaoui, Re, 2008 SCC 38 (S.C.C.) (“Charkaoui #2”). In that appeal, Mr. Charkaoui sought a stay of proceedings based on the destruction of original notes taken by the Canadian Security Intelli- gence Service (“CSIS” or the “Service”) during interviews with him. The Su- preme Court allowed Mr. Charkaoui’s appeal in part. While a stay of proceedings was deemed premature, the Court held that the destruction of operational notes was a serious breach of CSIS’ duty to retain and disclose information in accordance with section 12 of the Canadian Security Intelligence Act, R.S.C. 1985, c. C-23 (the “CSIS Act”). 12 On September 24, 2008, in conformity with this ruling, the Court ordered the Ministers and CSIS to “... file all information and Intelligence related to Mo- hammed Harkat including, but not limited to, drafts, diagrams, recordings and photographs in CSIS’ possession or holdings with the designated proceedings section of the Court”. 13 The scope of disclosure required by Charkaoui #2 resulted in the filing of thousands of documents, most of them redacted in part. The production of such documents took over six months. However, the process was ongoing and began as soon as some redacted documents were ready to be filed. The redactions were necessary since a good number of documents did not only deal with Mr. Harkat, but with other matters that were not related to the case. The special advocates had access to the information relating to Mr. Harkat in accordance with the legislation but to nothing else. The Court therefore assumed an additional task in reviewing the relevance of the redactions. This exercise was time-consuming. The review identified a few questionable redactions, but they were warranted in all other cases. The special advocates reviewed the Charkaoui #2 disclosure and identified some information which they felt was relevant to the proceeding. As a result of the Charkaoui #2 review, documents were entered as exhibits (see ex. M13, M15, M17, M18, M25 and M26). Except for the human source polygraph issue (which shall be dealt with separately), the Court and the special advocates did not find any smoking gun or substantive information that was not included in the initial disclosure. This disclosure process added months to the proceeding. 14 In the fall of 2008, closed hearings were held concerning the Charkaoui #2 disclosure issue. Also, evidence through a ministerial witness was presented in support of the allegations made against Mr. Harkat and as to the reasonableness of the certificate. Since the Charkaoui #2 disclosure was ongoing, the cross- examination of the witness by the special advocates was limited to the issue of the danger associated with Mr. Harkat in relation to the review of conditions of release. The cross-examination concerning the reasonableness of the certificate was postponed to November 23, 2009. During those closed hearings, the Court dealt with other matters such as the request of the special advocates to access a CSIS employee file and human sources files. This resulted in the issuance of Harkat, Re Simon No¨el J. 9

reasons for judgment in both cases (see Harkat, Re, 2009 FC 203 (F.C.); and Harkat, Re, 2009 FC 1050 (F.C.)). 15 In October 2008, the Ministers consented to a change of residence, and to the removal of a condition that required Mr. Harkat to reside with two supervising sureties. The Ministers’ consent was conditional upon Mr. Harkat’s agreement with a number of conditions, such as the installation of surveillance cam- eras by the Canada Border Services Agency (“CBSA”). The Ministers also agreed to have Mr. Weidemann removed as a supervising surety. 16 In December 2008, an issue arose with regard to telephone intercepts and solicitor-client privilege. Closed and public hearings were held on the subject, and it was concluded that no conversation with counsel was listened to by CBSA and/or CSIS. This information was updated as of the end of August 2010. Again, no calls were listened to. 17 In March 2009, this Court conducted a review of Mr. Harkat’s release conditions in public hearings. It concluded that his release without conditions would be injurious to national security, but however confirmed his release under more appropriate conditions. In particular, Mr. Harkat could stay home alone between 8AM and 9PM provided he gave the CBSA a 36-hour notice and call them every hour on the hour Harkat, Re, 2009 FC 241 (F.C.)). 18 On April 23, 2009, as a result of the ongoing closed hearings, the Ministers disclosed facts on which they relied upon that were not previously disclosed publicly, as well as a summary and further disclosure of Charkaoui #2 documents (see ex. M15). It was agreed between counsel that only information relied upon in examination and cross-examination could be used for the purposes of the proceeding. 19 On May 12, 2009, 19 days before the public hearings as to the reasonableness of the security certificate were to begin, the CBSA conducted a search of Mr. Harkat’s residence. Sixteen law enforcement officers were involved, including three canine units. Searches were authorized under the conditions of release. Having become cognizant of how the search was done, this Court immediately cancelled such authority given to the CBSA in the conditions of release, and subjected them to a prior authorization by the designated judge (See Order dated May 12, 2009 amending the conditions of release). Upon request by Mr. Harkat, the search was reviewed by the Court. It was ruled that the search authorization granted by paragraph 16 of the conditions of release did not authorize the inten- sive and broad nature of the search and seizure done on May 12, 2009 (see Harkat, Re, 2009 FC 659 (F.C.)). All items seized were ordered to be returned to Mr. Harkat. 20 On May 26, 2009, a Ministers’ letter was delivered to the Court providing new information in relation to the reliability of a human source that had provided information on Mr. Harkat (the “polygraph issue”). The Court ordered the 10 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d)

Ministers to file, on a confidential basis, the human source file, as the Court had evidence that led it to question the completeness of the information provided by the Ministers. On June 16, 2009, the Court issued a public direction offering three CSIS witnesses an opportunity to explain their testimony and their failure to provide relevant information to the Court. The CSIS witnesses accepted the Court’s invitation. 21 In their submissions, the special advocates sought the exclusion of all information provided by the human source in question as a remedy pursuant to subsection 24(1) of the Charter. On October 15, 2009, the Court issued public reasons for order and an order (Harkat, Re, 2009 FC 1050 (F.C.)). The Court found that there had been no intent to filter or conceal the information concerning the human source on the part of the CSIS employees and that there were insufficient grounds to rule that Mr. Harkat’s rights, as guaranteed by the Charter had been violated. However, the Court ordered that another human source file relied upon by the Ministers be made available to the special advocates and the Court, set- ting aside the human source privilege, to ensure that there was no further concern in relation to the special advocates’ ability to fully test the evidence. This was found to be necessary to repair the damage done to the administration of justice and to re-establish a climate of trust and confidence in the proceeding. The review of the human source files by the special advocates and the Court did not reveal any new evidence to the effect that the information presented to the Court was incomplete or not reflecting the information gathered. The Ministers filed a new classified exhibit which reflected more properly the content of the human source file related to the polygraph test. The other human source file reviewed by the special advocates and the Court was in accordance with the original ministerial exhibits filed on human sources. The remedy sought by the special advocates pursuant to subsection 24(1) of the Charter was not granted since remedies had been granted and the situation did not call for the exclusion of the information provided by the human source. 22 On September 21, 2009, Mr. Harkat filed an application for an order reviewing his conditions of release. In light of a new threat assessment issued by the Ministers, an important number of restrictions were removed. Mr. Harkat could now go on outings without the presence of his sureties and was allowed to travel outside the Ottawa region under certain conditions (Harkat, Re, 2009 FC 1008 (F.C.)). Some restrictions remain, such as having to wear a GPS bracelet. 23 During the closed hearing, which was prior to the beginning of the public hearing on the reasonableness of the certificate, an issue arose with regard to third party information that the special advocates considered necessary to be transmitted to Mr. Harkat. However, this information is protected from disclosure by a caveat in the Intelligence world: no disclosure is allowed unless permission is obtained. This sensitive issue was dealt with at length during closed hearings. The special advocates agreed that some of the information was such Harkat, Re Simon No¨el J. 11

that permission should be sought from these specific sources of information. A process was established by the Ministers to seek such permission in specific cases. Some of this information was eventually disclosed to Mr. Harkat through summaries. 24 The special advocates and public counsel aimed to obtain updated information on Zubaydah and Wazir, two individuals alleged to have links with Mr. Harkat. Closed hearings were held and the matter was reviewed at length. When possible, public communications of the information was made (see communication dated May 12, 2010). At the end of the public hearings, the Court informed the parties that any new information concerning these two individuals could be filed with the Court until August 31, 2010. Other documents were filed in closed hearings and a summary of information was also issued (see Oral communication issued on September 1, 2010). Closed hearings began in September 2008 and finished with oral submissions in early summer 2010. Public hearings also began in the fall of 2008 and were concluded with oral submissions also in the early part of the summer 2010. Many witnesses were heard in both public and closed hearings, some of them as factual witnesses, others as experts. 25 Many lawyers have been involved in this proceeding: five lawyers for the Ministers, three public counsels for Mr. Harkat, and two special advocates. The involvement of so many persons gave rise to a multitude of motions and requests which required months of preparation, hearings and writing. Other lawyers were involved in the polygraph issue, which generated more work. 26 These proceedings are supposed to proceed as informally and as expeditiously as the circumstances and considerations of fairness and natural justice permit (see paragraph 83(1)(a) of the IRPA). From February 2008 to June 2010, at the end of public hearings, more than thirty months have passed. It has been impossible for the Court to proceed more expeditiously. A substantial amount of work was generated by the numerous lawyers who have acted on behalf of their respective clients. Sufficient time had to be allowed for the Ministers to comply with Charkaoui #2 and the reviewing process had to take place, including the evaluation of the pertinence of the redactions. The analysis of the search of Mr. Harkat’s home and the polygraph issues also required time. The scheduling of public hearings for so many counsel involved was time-consuming as well and the process of public disclosure also created hurdles. These were lengthy proceedings considering the subject matter at play.

The submissions of the parties a) The applicant on the exclusion of summaries of conversations as evidence 27 The Applicant submits that the “wholesale destruction” of documents by CSIS under the former OPS-217 policy violated his rights under section 7 of the Charter. The Supreme Court in Charkaoui #2 indeed stated that this policy ran 12 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d)

counter to CSIS’ duty of candour. However, the Applicant suggests that the past destruction of documents constitutes a “devastating assault” on his capacity to make a full legal argument. 28 Because of the destruction of documents, it is argued that the Applicant, his public counsel and his special advocates, cannot adequately verify the assertions made by the Ministers. As he is deprived of the original notes and records relevant to the case, the Applicant argues that he has suffered an insurmountable prejudice to making full answer and defence. 29 It is argued that CSIS’ actions with regard to the destruction of original documents cannot be excused on the basis of good faith. The Applicant submits that such negligence or willful blindness on CSIS’ part cannot be characterized as good faith. Furthermore, it is submitted that even the absence of bad faith cannot excuse a breach of the Applicant’s section 7 Charter rights.

b) The applicant on the stay of proceeding 30 In the alternative, the Applicant submits that the cumulative effect of several alleged Charter breaches calls for a stay of proceedings. These alleged Charter violations are said to be a “systemic violation” of the Applicant’s section 7 rights and as such, constitute an overwhelming prejudice and an affront to the integrity of the administration of justice. The prejudices suffered by the Appli- cant are argued to be perpetuated by the continuation of the proceedings, thus making the Applicant’s case one of the “clearest of cases” as recognized by the relevant case law. Because of the gravity of such cumulative breaches, the Court must clearly censure such conduct. The several alleged breaches are detailed as follows:

a. Destruction of original documents by CSIS according to the prevailing OPS- 217 policy 31 As described above, it is submitted that the destruction of documents by CSIS is a breach of the Applicant’s section 7 rights, as he cannot mount a full and adequate defence. As such, the destruction of documents should be considered as one of the cumulative breaches calling for a stay of proceedings.

b. The impact of the destruction of documents on the special advocates’ duty 32 Because of the destruction of original documents, the special advocates’ presence is not sufficient to ensure a fair hearing for the Applicant and they have not been able to assume their duties in the closed hearings.

c. The alleged breach of CSIS’ duty of candour 33 It is submitted that CSIS’ collection and divulgation of information was skewed in favour of information prejudicial to the Applicant, with neutral or exculpatory information being excluded. The Applicant submits that, absent a Harkat, Re Simon No¨el J. 13

complete verification of the information underlying the SIR, CSIS’ filtering of information is a breach of its duty of candour. Because original source documents and records are not provided, recordings and summaries of intelligence provided are subjected to a lower standard of scrutiny, contrary to the Appli- cant’s section 7 rights. It is argued that the Court cannot make meaningful inquiries into the reliability of conclusions drawn by CSIS.

d. Passage of time 34 The Applicant argues that the lengthy duration of the proceedings has resulted in a breach of his section 7 rights. The right to be tried within a reasonable time is enshrined in the Charter in section 11(b), but section 7 of the Charter is also relevant, as delays affect the security of the person; an application of the principles of fundamental justice is called for. It is submitted that passage of time hinders the applicant’s ability to respond to the case made against him, in view of the frailty of human memory. The passage of time further compromises the Applicant’s ability to secure exculpatory evidence.

e. The search of the applicant’s home 35 A search undertaken by CBSA was deemed to have been unlawful and conducted in an unreasonable manner, in violation of the Applicant’s rights (Harkat, Re, 2009 FC 659 (F.C.)). The search compounds the prejudice suffered by the Applicant and should be considered in the abuse of process claims made by the Applicant.

f. The alleged violation of solicitor-client privilege 36 As a result of the aforementioned search of the Applicant’s home, the Appli- cant argues that there was a seizure of documents protected under solicitor-client privilege. Furthermore, telephone conversations were recorded and retained, despite CSIS’ claim to a practice of dissociation. The seriousness of the breach of solicitor-client privilege has not been fully appreciated. It is therefore a Charter breach to be examined under an abuse of process theory.

g. The human sources and polygraph issues 37 These issues are related to both CSIS’ duty of candour and the reliability of the information submitted by the Ministers in support of their claims. In effect, CSIS had been negligent in not disclosing that human sources had been proven unreliable by polygraph examination. This further adds to the Applicant’s claim to an abuse of process affecting his Charter rights. 38 The applicant argues that the cumulative effect of all these elements is such that a stay of proceedings should be granted. 14 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d)

The respondent on the exclusion of summaries of conversations as evidence 39 The Ministers submit that it is not appropriate to exclude evidence before the Court. The Ministers’ are of the opinion that no abusive conduct has been shown and that the Applicant’s section 7 rights to a fair hearing have not been prejudiced. 40 The Applicant has effectively been given sufficient disclosure. In accordance with the weight of the case law, individuals are not entitled to the most favourable procedures, but rather a procedure that is fair with regard to the context and interests at stake. Because the special advocates have fulfilled their mandate and in the light of the evolution of disclosure requirements, it is argued that the Ap- plicant has effectively been given the information required to meet the case made against him. 41 The Ministers argue that exclusion of evidence is not warranted. There is no evidence of an absence of good faith on CSIS’ part with regard to their past policy as to the destruction of material. In this case, the destruction of documents was not deliberate and was not done in order to avoid disclosure. Further- more, the destruction of the evidence occurred after sufficient steps had been taken, namely, the preparation of a summary. CSIS took reasonable steps in the circumstance to preserve evidence for disclosure, which satisfy the section 7 requirements in the context of security certificate proceedings. Furthermore, in view of the seriousness of the allegations and the need to protect national security, the Court should proceed without excluding evidence.

The respondents on the stay of proceeding 42 The Ministers argue that a stay of proceedings must be granted in only the clearest of cases, which the Applicant’s case is not. A stay of proceedings is designed to stop the perpetration of a wrong that would persist if the prosecution of the case were to continue. Societal interests can and should be taken into consideration. Such an interest could call for the completion of the Applicant’s case as to the reasonableness of the security certificate. Furthermore, the Court has granted remedies in relation to several of the Applicant’s claims of section 7 violations; hence, there is nothing to suggest that the continuation of the proceeding would offend society’s sense of justice or that the integrity of the system would be put in jeopardy.

a. Destruction of original documents by CSIS according to the prevailing OPS- 217 policy 43 The Ministers argue that the destruction of documents by CSIS was not ruled by the Supreme Court in Charkaoui #2 to be one of the “clearest of cases” where a stay of proceedings is warranted. In accordance with the Supreme Court’s decision in Charkaoui #2, the designated judge is in a position to assess the impact of the destruction of notes, which the Ministers argue to be minimal. Harkat, Re Simon No¨el J. 15

The previous arguments with regard to the exclusion of evidence remedy apply to the abuse of process theory as well. In sum, the Applicant has not shown that his ability to answer the case has been prejudiced to the point that the Court should rule that there has been an abuse of process.

b. The impact of the destruction of documents on the special advocates’ duty 44 The Ministers argue that the confidential nature of certain information does not mean that the Applicant is unable to provide a full answer to the allegations summarized to him. The procedural safeguard of special advocates protects the confidentiality of information and ensures that the Applicant can make full answer and defence. The mere protection of confidential information by the Minis- ters does not amount to an abuse of process. Furthermore, nothing stops the Ap- plicant from truthfully disclosing all of his previous activities to the special advocates, prior to their review of confidential information. His ability to do so is not impeded. Through his special advocates and his public counsel, the Appli- cant can effectively know and meet the case made against him.

c. The alleged breach of CSIS’ duty of candour 45 Under subsections 77(1) and 77(2) of the IRPA, the Ministers are to file all information and evidence on which the certificate is based, as well as a summary of all other information so that the named person can reasonably be informed of the case made against him. It is normal that further information is to be provided as the proceedings evolve, as more information may become available. Conse- quently, since CSIS and the Ministers have complied with the disclosure requirements set out in Charkaoui #2, there has been no breach of the duty of candour in these proceedings.

d. Passage of time 46 Passage of time in this case does not give rise to an abuse of process. Delay, without more, cannot warrant a stay of proceedings; it must be shown that a prejudice has resulted from the alleged unacceptable delay. The Applicant’s detention was ordered and previous procedures were conducted pursuant to the law in effect at the time. Even though the Applicant’s successfully challenged the previous statutory regime, that does not make the previous proceedings and delays an abuse of process. Furthermore, time taken up in legal challenges should not count against either party in assessing passage of time. Also, because the Applicant has just flatly denied the allegations, it is difficult to imagine that passage of time prejudices his ability to make a defence. Passage of time should thus not be considered in assessing the abuse of process motion. 16 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d)

e. The search of the Applicant’s home 47 Shortly after the search, the Ministers advised the Court that all documents and material seized would be sealed pending a further order of the Court. Through the intervention of Prothonotary Tabib, a small number of documents were found to be privileged and were returned to the Applicant. Following the Court’s decision regarding the search, CBSA complied with the order. Hence, the Applicant has been granted a remedy and there is no evidence that the search resulted in a breach of the Applicant’s solicitor-client privilege.

f. The alleged violation of solicitor-client privilege 48 The Ministers submit that a completely adequate remedy has been granted to the Applicant with regard to the breach of solicitor-client privilege. There is no ongoing concern calling for a stay of proceedings. No prejudice has resulted from interceptions of solicitor-client communications, as no reports were generated as a result thereof. The Court has already granted a remedy and no wrong will be perpetuated.

g. The human sources and polygraph issues 49 As decided by the Court in Harkat, Re, 2009 FC 1050 (F.C.) and Harkat, Re, 2009 FC 553 (F.C.), there was no deliberate effort by CSIS to mislead the Court. Institutional shortcomings deprived the Court of relevant information, but were remedied by the exceptional disclosure of the sources files to the Court and the special advocates. Hence, a remedy has been provided to the Applicant with regard to human sources and polygraph issues.

The issues 50 The present motion raises questions with regard to the conduct of the Minis- ters, CSIS and, in some way, the Court in relation to the security certificate proceedings. The questions can be broken down as follows: 1) Does the destruction of originals of conversations which were summarized in accordance with a CSIS policy call for the exclusion of the summaries of evidence based on the doctrine of abuse of process and subsection 24(1) of the Charter? 2) Do any of the following events or situations, cumulatively, amount to an abuse of process which would call for a stay of proceeding: a) Has the destruction of originals of conversations (which were summarized) by CSIS in accordance with the CSIS policy OPS- 217 impaired Mr. Harkat’s right to disclosure? b) The impact of the destruction of originals of conversations (which were summarized) on the special advocates’ duties? c) The alleged breach of CSIS’s duty of candour; Harkat, Re Simon No¨el J. 17

d) The passage of time; e) The search of Mr. Harkat’s home; f) The alleged violation of the solicitor-client privilege; g) The human source and polygraph issues.

The applicable law On the exclusion of evidence 51 The exclusion of the summaries of conversations sought is based on an abuse of process doctrine. Mr. Harkat invokes subsection 24(1) of the Charter. To grant that remedy, a court must be convinced that the remedy sought is just and appropriate (R. v. O’Connor, [1995] 4 S.C.R. 411 (S.C.C.), para. 68 (“O’Connor”). The applicable criterion in determining the exclusion based on abuse of process is 1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and 2) no other remedy is reasonably capable of removing that prejudice (O’Connor, at para. 75). 52 The approach developed in the criminal law context with regard to the exclusion of evidence is informative in that it identifies the relevant criteria and factors. In R. v. Grant, 2009 SCC 32 (S.C.C.) (“Grant”), the Supreme Court indicated that the remedy of exclusion of evidence was to be used while considering the purpose of subsection 24(2) of the Charter which is to maintain the good repute of the administration of justice. In Grant, at paragraph 85, three criteria were identified for considering the exclusion of evidence when considering a Charter violation: • Society’s interest in the adjudication of the case on its merits; • The impact of the breach on the Charter protected interests of the accused; • The seriousness of the Charter infringing state conduct. These three criteria “encapsulate consideration of “all the circumstances” of the case” (Grant, at para. 85) and enable a judge to determine whether, on balance, the admission of the evidence obtained by Charter breach would bring the administration of justice into disrepute. 53 Mr. Harkat seeks the exclusion of the summaries of conversations based on subsection 24(1) of the Charter and an abuse of process doctrine. While the exclusion of evidence typically flows from subsection 24(2), it can also be granted under subsection 24(1), but only in cases where “a less intrusive remedy cannot be fashioned to safeguard the fairness of the trial process and the integrity of the justice system” (R. v. Bjelland, 2009 SCC 38 (S.C.C.), at para 19 (“Bjelland”)). Then, the accused must show one of two elements: 1) that the prejudice suffered affects the fairness of the trial, where fairness is to be consid- 18 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d)

ered both from the accused’s perspective and that of society; or 2) the admission of the evidence would compromise the integrity of the justice system (see Bjel- land, at paras. 19, 22 and 23). The Court has to analyze the exclusion remedy through the prism of subsection 24(1) of the Charter, as Mr. Harkat’s submissions indicate. However, as both parties have readily done in their written submissions, the Court will also draw principles from case law arising under subsection 24(2) in order to fully assess Mr. Harkat’s claims. This approach is also taken in the context of the stay of proceedings. It is useful here to remind the content of section 24 of the Charter: Enforcement of guaranteed rights and freedoms 24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. Exclusion of evidence bringing administration of justice into disrepute (2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. Recours en cas d’atteinte aux droits et libertés 24. (1) Toute personne, victime de violation ou de négation des droits ou libertés qui lui sont garantis par la présente charte, peut s’adresser a` un tribunal compétent pour obtenir la réparation que le tribunal estime convenable et juste eu egard´ aux circonstances. Irrecevabilité d’éléments de preuve qui risqueraient de déconsidérer l’administration de la justice (2) Lorsque, dans une instance visée au paragraphe (1), le tribunal a conclu que des el´´ ements de preuve ont et´´ e obtenus dans des conditions qui portent atteinte aux droits ou libertés garantis par la présente charte, ces el´´ ements de preuve sont ecart´´ es s’il est etabli,´ eu egard´ aux circonstances, que leur utilisation est susceptible de déconsidérer l’administration de la justice.

On the stay of proceeding 54 The Supreme Court has very clearly set out the applicable test for granting a stay of proceedings and how the Court faced with a motion for a stay under subsection 24 (1) must consider its decision. In O’Connor, at paragraph 68 (O’Connor), the Supreme Court stated that: It is important to remember, however, that even if a violation of s. 7 is proved on a balance of probabilities, the court must still determine what remedy is just and appropriate under s. 24(1). The power granted in s. 24(1) is in terms discretionary, and it is by no means automatic that a stay of proceed- Harkat, Re Simon No¨el J. 19

ings should be granted for a violation of s. 7. On the contrary, I would think that the remedy of a judicial stay of proceedings would be appropriate under s. 24(1) only in the clearest of cases. In this way, the threshold for obtaining a stay of proceedings remains, under the Charter as under the common law doctrine of abuse of process, the “clearest of cases”. 55 Thus, when a breach of the Charter has been found, a stay of proceedings is not automatic. The applicable standard is that of the “clearest of cases” where a stay is warranted and as such, a stay of proceedings is a remedy of last resort (Canada (Minister of Citizenship & Immigration) v. Tobiass, [1997] 3 S.C.R. 391 (S.C.C.) (“Tobiass”)). In any other case, the Court may fashion a remedy pursuant to subsection 24(1) in order to address the Charter breach. As stated earlier, the Supreme Court has accepted that, when an abuse of process is alleged, it must be shown that (1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and (2) no other remedy is reasonably capable of removing that prejudice (O’Connor, at para. 75). On many occasions, the underlying justification has been stated as “compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community’s sense of fair play and decency and to prevent the abuse of a court’s process through oppressive or vexatious proceedings, and only in clearest of cases should a stay be granted” (see, for example, R. v. Potvin, [1993] 2 S.C.R. 880 (S.C.C.); R. v. Scott, [1990] 3 S.C.R. 979 (S.C.C.); Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44 (S.C.C.) (“Blencoe”)). A stay of proceedings is granted when the proceedings are tainted to such a degree that allowing the case to continue would tarnish the integrity of the court (R. v. Conway, [1989] 1 S.C.R. 1659 (S.C.C.)). This test for a stay of proceedings is derived from criminal law and common law, but is wholly applicable to administrative law (Blencoe, at para. 120). Not every breach of a Charter right will amount to an abuse of process: the abuse “must have caused actual prejudice of such magni- tude that the public’s sense of decency and fairness is affected” (Blencoe, at para. 133). 56 When it is still uncertain whether the conduct in issue is sufficiently blame- worthy to warrant a stay of proceedings, a third criterion is used: society’s interest in proceeding with a full hearing leading to a final decision on the merits of the case (R. v. Regan, 2002 SCC 12 (S.C.C.), at para. 57 (“Regan”); Tobiass, at para. 92). This includes, as cited by the Ministers, the prosecution of immigration cases against a person accused of crimes against humanity (Valle Lopes v. Canada (Minister of Citizenship & Immigration), 2010 FC 403 (F.C.)). In Al Yamani v. Canada (Minister of Citizenship & Immigration), 2003 FCA 482 (F.C.A.), allegations of terrorism were deemed of the most serious kind and their gravity called for a continuation of the proceedings. Furthermore, a final deter- 20 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d)

mination of the validity of the terrorism charges was deemed to be a compelling societal interest, as it was clearly stated at paragraphs 38 and 39: Terrorist organizations by their nature are unpredictable. The existence of sleeper cells is widely recognized and the mere fact someone has lived peacefully in Canada for many years does not preclude them from being a threat to the security of Canadians. Contrary to the appellant’s arguments, an allegation that someone is a former member of a terrorist organization therefore is a very serious one. Therefore, the gravity of the allegations argues in favour of continuing the proceedings. (...) Finally, the appellant argues that it is necessary to “consider the entire context of the circumstances” and not dissect each argument one by one. I acknowledge that some of the issues raised by the appellant could, in some circumstances, support an abuse of process argument. However, in the context of proceedings concerning an allegation there are reasonable grounds to believe that the appellant is or was a member of an organization that there are reasonable grounds to believe is or was engaged in terrorism, there is a compelling societal interest in obtaining a decision on the merits. 57 When no breach of the Charter is found, an abuse of process theory can still be applied since it is recognized by the common law, even if a “strong conver- gence” between the two is noted (O’Connor; Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 (S.C.C.), at para. 36 (“C.U.P.E.”); United States v. Shulman, 2001 SCC 21 (S.C.C.)). The Supreme Court notes, at paragraph 70 of O’Connor, “that the only instances in which there may be a need to maintain any type of distinction between the two regimes will be those instances in which the Charter, for some reason, does not apply yet where the circumstances nevertheless point to an abuse of the court’s process”. Essentially, abuse of process is recognized at common law, but it is essentially subsumed into the principles of the (Regan; C.U.P.E., at para. 36). 58 The Court’s authority to declare that there has been an abuse of process is “an inherent and residual discretion to prevent an abuse of the court’s process” (C.U.P.E., at para. 35). In striking similarity to the tests applied when abuse of process is considered as a remedy provided by subsection 24(1) of the Charter, the Supreme Court noted that a stay can be granted where compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community’s sense of fair play and decency and to prevent the abuse of a court’s process through oppressive or vexatious proceedings: only in clearest of cases should a stay be granted (R. v. Jewitt, [1985] 2 S.C.R. 128 (S.C.C.)). Harkat, Re Simon No¨el J. 21

The Analysis Does the destruction of originals of conversations, which were summarized in accordance with CSIS policy, call for the exclusion of the summaries as evidence on the doctrine of abuse of process and under subsection 24(1) of the Charter? 59 It is Mr. Harkat’s submission that the summaries of conversations (see ex. M7 at Appendix K) should be excluded as evidence since the originals of these conversations have been destroyed in accordance with CSIS policy OPS-217. The Supreme Court declared that this policy was inappropriate since, in the Court’s opinion, CSIS is bound to retain the information it gathers within the limits established by the legislation governing its activities (see Charkaoui #2, at para. 2). 60 The public evidence filed by the Ministers includes both summaries of six interviews between Mr. Harkat and intelligence officers and summaries of conversations involving Mr. Harkat. Both intelligence officers’ notes and originals of conversations were destroyed after summaries were made in accordance with the CSIS policy. These conversations involve key individuals related to Mr. Harkat, either as individuals he met or family members such as his father, brother or his Algerian fianc´ee and her mother. Mr. Harkat is only seeking the exclusion of these summaries of conversations as evidence. He is not seeking the exclusion of the summaries of six interviews with intelligence officers. 61 In order to understand what is sought to be excluded, it is important to cite them as they were disclosed to Mr. Harkat. The summaries of conversations are the following: 1) In September 1996, HARKAT discussed the date and time of an individual’s, believed to be Mohammed Aissa Triki (also known as Wael) arrival at the Montreal Airport. HARKAT counseled Triki on his processing through Canadian Immigration: Triki was to tell his story as it is, not lie and call HARKAT when he has left the airport. HARKAT would pick him up. HARKAT also told Triki that the interview at the airport was brief and that he should give them photo- copies of his papers but keep the originals for his lawyer. HARKAT further told Triki to deny knowledge of anyone in Canada. Triki told HARKAT to not inform “the guys from Peshawar” of his arrival. 2) In September 1996, HARKAT received a message from Wael also known as Mohammed Aissa Triki indicating that the latter could be reached at a hotel in Montreal. 3) In September 1996, Wael (also known as Mohamed Aissa Triki) advised HARKAT that he was staying at a hotel in Montreal. Wael and HARKAT discussed whether or not the latter would be picking Wael up in Montreal. If HARKAT was not available, Wael had a friend in Toronto who was willing to pick him up. Wael planned to stay in Ottawa, get to see “the guys” and possibly go to Toronto later. Wael 22 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d)

indicated that he would take the bus and asked HARKAT to wait for him at the bus station in Ottawa. HARKAT indicated that he would send his friend to pick Wael up and drive him to HARKAT’s house. HARKAT would meet Wael at the house later that day. Later, a friend advised HARKAT that Wael had arrived in Ottawa. HARKAT asked the friend to drive Wael to HARKAT’s house. 4) In November 1996, Al Shehre spoke to HARKAT from London, United Kingdom. Al Shehre addressed HARKAT as “Abu Muslim” and asked how the “brothers” were doing. When Al Shehre said that HARKAT might remember him as “Abu Messab Al Shehre of Babi”, HARKAT quickly said that Abu Muslim was not there and identified himself as Mohamed. When asked, HARKAT told Al Shehre that he did not know where Abu Muslim was, and said he did not know when Abu Muslim would be returning. 5) In November 1996, HARKAT received an apology on behalf of Abu Messab Al Shehre for the use of HARKAT’s alias, Abu Muslim. HARKAT tried to avoid being called Abu Muslim. 6) In February 1997, HARKAT identified himself to Hadje Wazir as “Muslim” from Canada. HARKAT inquired about Khattab or any of Khattab’s ‘people’. Hadje Wazir had not seen Khattab for a long time but he did see ‘his people’. HARKAT also inquired about Wael, also known as Mohamed Aissa Triki. HARKAT furnished his telephone number and asked that it be provided to Wael and ‘any brother who showed up at Wazir’s Centre to do transaction’. HARKAT also used to do “transactions” at Hadje Wazir’s Centre. HARKAT’s number could also be provided to Abu Baseer who used to visit Hadje Wazir’s Center for transaction purposes. Hadje Wazir had not seen Abu Baseer for a while but was seeing Abu Mazen and Abu Maher. HARKAT was pleased with this news and asked for Abu Maher’s phone number. Hadje Wazir promised to have Abu Maher contact HARKAT. HARKAT also inquired about Al Dahhak and Dr. Abdelsamad. Further, HARKAT asked for Wael’s telephone number. Hadje Wazir did not have Wael’s cellular phone number ‘on the list’. 7) In March 1997, HARKAT indicated that Ahmed Khadr was in Ot- tawa. HARKAT had met with him at the Centre and would be meeting him again on Monday. 8) In March 1997, HARKAT discussed some financial arrangements with an acquaintance in Ottawa who stated that he contacted Abu Zubaydah, at the “place” (believed to be a country) where HARKAT “used to be”. Abu Zubaydah wanted HARKAT to help pay Abu Messab Al Shehre’s legal fees, and HARKAT was asked if he could come up with $1,000.00 dollars. HARKAT replied that he was ready to pay that amount if he was contacted by Abu Zubaydah. When asked, HARKAT said he did not fear being contacted at home by Abu Zubaydah, and that he knew Abu Zubaydah personally. Harkat, Re Simon No¨el J. 23

9) In August 1997, HARKAT was provided with the telephone number for Al Dahak and Zuhair. HARKAT also discussed how the Ad Daawah Center invited all Muslims to purchase gas from Mohamed, the Moroccan. HARKAT indicated that he had spent the $30,000.00 dollars he had on the side. It was his intention to travel where Hadje Wazir was residing, and ask him for money. HARKAT could easily get money from Hadje Wazir. 10) In November 1997, two individuals (1 and 2) discussed how HARKAT had strayed from Islam. HARKAT was a practising Mus- lim who had become addicted to gambling and accustomed to West- ern life. Individual 2 noted that HARKAT had lived in Pakistan. When Individual 1 asked whether HARKAT was committed to Al Gamaa Al Islamiya (AGAI), in Pakistan, Inidividual 2 indicated that HARKAT was “one of them” but he was not tasked to do “great things” due to his leg problems. 11) In January 1998, two of HARKAT’s acquaintances had a discussion about HARKAT. When one inquired about the whereabouts of Abu Muslim, the other said to ignore HARKAT because he was frequent- ing the casino, disco bars and drinking alcohol. One acquaintance told the other to inform HARKAT’s contacts in Saudi Arabia to stop wiring money to him because “he (HARKAT) had changed drasti- cally”, and the money he was receiving was not used properly. One acquaintance asked the other to cover up HARKAT’s story and he would see what he could do to get HARKAT back to his Islamic faith. 12) In February 1998, HARKAT told Fahad Al Shehri that he had to keep a “low profile” as he needed status in Canada. HARKAT mentioned that he had at the very least managed to send a friend to visit and help Al Shehri while he was in prison. HARKAT told Al Shehri that as soon as he received Canadian status, he would be “ready”. HARKAT advised that he was not in a position to say what he wanted to say. In February 1998, HARKAT discussed his immigration case with Al Shehri. HARKAT’s problems with Immigration erupted following Al Shehri’s visit to Canada and the confirmation that HARKAT and Al Shehri were associated. HARKAT asked Al Shehri to send him $1500.00 dollars to cover the legal fees for his immigration process. Al Shehri promised to send the money as soon as possible. HARKAT asked Al Shehri to get the money from “the group” if he could not get it on his own. 13) In September 1998, an acquaintance of HARKAT told him that a female investigator from CSIS had interviewed him in relation to HARKAT’s nationality, his past activities in Afghanistan and Paki- stan, and his relationship with Algerian community members in Ot- tawa. The acquaintance told the CSIS investigator that HARKAT was an Algerian from the province of Tirat (sic) and that HARKAT 24 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d)

was known to Algerians as Mohamed, the Tiarti. HARKAT indicated that CSIS checked on him with many members of the Algerian community in Ottawa and was watching him due to contradictory information CSIS had received on him. HARKAT indicated that he was questioned by CSIS in relation to possible aliases and whether or not he entered Canada using a false passport. He furthered that he tried to tell CSIS the truth but, according to him, CSIS was not lis- tening. HARKAT told CSIS that they should check on him with the Algerian government. HARKAT also commented that if CSIS pos- sessed strong evidence against him, he would have been deported by now. 14) March 12, 2009 — In May 2001, Harkat spoke with his brother Badrani in Algeria. Harkat reprimanded Badrani for giving money to an Algerian who had promised to procure immigration papers for 385. Harkat explained to his brother that this was a ploy to obtain money from na¨ıve people. Harkat said he knew people who were married in Canada and still could not get their status in Canada so why would anyone believe it would be possible to obtain Canadian immigration papers in Algeria for uneducated Algerians like Badrani. Harkat was angry and told Badrani not to waste the money he had sent him in this way. Harkat then spoke with his mother and told her he had sent 40 million. Harkat spoke with his brother Badrani again and asked him to send him a copy of his police record and also to forget about coming to Canada. Badrani promised to look into it. Harkat then spoke with his sister Jamaa and told her he was not hurt following his car accident but he had lost his job. Harkat told Jamaa that he often viewed Algerian web sites and was aware of what was going on there. 15) In May 2001, Harkat told a friend that the imam never sent him the registration papers for his marriage. Harkat said he needed proof of his marriage because he was meeting with his lawyer to cancel his refugee application and replace it with an immigration process based on marriage. Harkat explained he needed these papers because his father was 80 years old and sick. Harkat and the friend would visit the imam later that night. 16) In June 2001, Harkat spoke with a friend who said she would have to submit a new immigration request within two months or leave Can- ada, unless her brother sponsored her and her family. Harkat said the brother had not received his own immigration papers yet. The friend said her brother’s immigration case was being blocked by CSIS and added that she should not talk about it and said that CSIS was looking for people. Harkat suggested she should get married to which she replied that her brother was seeing if one of his friends wanted to marry her for money. Harkat told his friend he could no longer see her because he did not want to create any further problems with his Harkat, Re Simon No¨el J. 25

marriage. Harkat said he would like to see her to talk and suggested she call him when he was finished work. 17) In June 2001, Harkat spoke with Badrani in Algeria and asked him to find a house for him to buy in Algeria. Harkat said he would go to Algeria soon. Harkat spoke to his father and asked for news about the political and economic situation in Algeria. His father said the situation was very calm. Harkat said he was thinking of going to Algeria in the following two months. 18) In May 2001, HARKAT had a conversation with his fianc´ee Khaira Abdel Khader and her mother Yamina in Algeria. HARKAT indicated that he was still waiting for a copy of his police record and once he received this, he would be able to prepare his papers to at last be able to go to Algeria and marry Khaira. Khaira told HARKAT that she was not able to pass her baccalaureate and pleaded with HARKAT to send her 500,000 so she could buy the baccalaureate. 19) In May 2001, during another conversation with Khaira Abdel Khader and her mother Yamina in Algeria, Yamina suggested to HARKAT that he buy a house. HARKAT said that he was thinking of sending money to Algeria so that when he arrived there he would have enough money to buy a house. HARKAT explained that he was on employment insurance for a 6 month period and would not work until his papers were ready. HARKAT added that once his papers were ready, before the end of the year, he would travel to Algeria and get married. 20) In June 2001, in another conversation with his fianc´ee Khadija (another name for Khaira Abdel Khader) and her mother Yamina in Al- geriga (sic), HARKAT told Yamina that if he did not have a response for his papers, he would go to Algeria and he would buy a house and stay there for six months. HARKAT explained to Khadija that he did not understand why things were not working out for him, and that his lawyer told him that he had bad luck in his file because his file was controlled by a lazy person. HARKAT added that his lawyer was doing everything necessary to solve the problem. In response to Khadija, HARKAT said that he did not think he would bring her to Canada to live with him. Khadija said that she would like to come to Canada but HARKAT explained he would like her to remain in Algeria to raise their future children. (see ex. M7 at Appendix “K”) 62 Mr. Harkat asks the Court to exclude all the 20 summaries of conversations, including the ones involving his family (conversations 14 to 20). However, he did admit having had conversations with family members and did not disagree with the content of the summaries made in relation to them (see Transcript of Proceedings, Vol. 15 (Feb. 5, 2010) at 41). Concerning the other summaries of conversations, he rejects a good number of them (see K5, K6, K7, K8, K9 and 26 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d)

K12 and written submissions of public counsel, Annex B); he acknowledges that he may have had other conversations (K1, K3, K4, K13), but gave them some context. He also disagreed with what two acquaintances said about him (K10) and other conversations were nuanced (K1, K2). 63 The originals of these conversations were destroyed once transcribed into a report in accordance with CSIS policy OPS-217. This policy was invoked by CSIS in response to what it considered the applicable legislative requirement (section 12 of the CSIS Act), on the use and retention of operational notes. The policy included operational notes, handwritten notes, audio and video recordings. The policy made it clear that operational notes were temporary in nature, and had to be destroyed once transcribed into a report (see Charkaoui #2 at paras. 29 and following). The summaries of conversations were made accordingly and are part of reports made by intelligence officers in accordance with other policies of CSIS for the purposes of disclosure in the present proceeding. The summaries of conversations were derived from these reports which, if disclosed publicly, would be injurious to national security. As noted earlier, in Charkaoui #2 (see para. 64), the Supreme Court invalidated policy OPS-217 on the basis that CSIS must retain operational notes for disclosure to the Ministers, the Court and the special advocates when issuing security certificates. It is then the duty of the designated judge, with the help of Ministers’ counsel and the special advocates, to disclose non-privileged information to the named person without causing injury to national security or endanger the safety of any person. 64 Therefore, at the time, the destruction of originals took place in accordance with CSIS policy only after a report had been created and therefore ensuring that the information was preserved. There was no malicious intent whatsoever. 65 John, the intelligence officer who testified in public in support of the Minis- ters’ allegations against Mr. Harkat, explained the process followed by CSIS personnel to ensure the quality of the summaries of audio recordings. There was also closed evidence on that topic. 66 Having fully reviewed the confidential information in support of the allegations, and having gained a knowledge of the factual situation surrounding Mr. Harkat’s life at the time, each summary of conversation, including the ones with his family or fianc´ee, is supported by the evidence, whether public or confidential, which further supports the content of the summaries. It is significant that the individuals involved in these conversations are related to Mr. Harkat’s past life and the contents of the conversations are related thereto. The summaries accu- rately reflect Mr. Harkat’s life at the time and I therefore find them reliable. 67 They are redacted in such a way as to give Mr. Harkat more information in support of the allegations made against him. They allow him to better understand the case made and respond to it if he so chooses. In most cases, he denied having them. Harkat, Re Simon No¨el J. 27

68 As noted in R. v. La, [1997] 2 S.C.R. 680 (S.C.C.) (“R. v. La”), there is no absolute right to the production of originals of documents, but when relevant material once available becomes non-existent, then that calls for a proper explanation. Such was the case in the present proceeding. If originals of documents are not available, then we must determine whether or not the failure to have the originals has prevented the named person from making a full answer and defence, and whether or not the circumstances as described violated the fundamental principles underlying the community’s sense of decency and fair play and cause prejudice to the integrity of the judicial system. If that is the case, violation of section 7 will have been shown and a remedy pursuant to subsection 24(1) will be fashioned. 69 In the present circumstances, the originals were summarized as part of confidential reports from which summaries of conversations were made and disclosed to Mr. Harkat. The effect of disclosing such summaries was to give Mr. Harkat further disclosure to make a full answer and defence. Furthermore, the loss of the originals of the conversations did not occur as a result of a dishonest intent to destroy valid evidence, but rather as a result of the application of CSIS policy. 70 The disclosure made to Mr. Harkat as a result in part of the special advocates’ work in protecting his interests in closed hearings, gave him better access to the intelligence information gathered by CSIS on him. Through the persistent work of all concerned, more information was disclosed to Mr. Harkat and his counsel. 71 Mr. Harkat submits that the originals of these conversations would have ena- bled him to challenge them on the basis of faulty voice identification, inaccurate translation, etc. There is no evidence that these challenges would have been successful. On the contrary, the evidence presented in public and closed hearings supports the facts and substance of these summaries. 72 As noted earlier, following O’Connor a stay can be granted if prejudice caused by the alleged abuse will be perpetuated or aggravated through the conduct of the trial or its outcome and no other remedy is available. As the summaries and the information provided to Mr. Harkat show, the alleged prejudice, even if found to be existent (which in my view is dubious), it would not be perpetuated or aggravated should the proceedings continue. If anything, the proceedings have resulted in additional relief. Without a doubt, Mr. Harkat has be- nefited from more substantive disclosure. As well, the assessment of secret evidence was made by his special advocates in the defense of his interests. 73 In both Grant and Bjelland, the Supreme Court clearly shows a concern in ensuring that the administration of justice is well preserved and the integrity of the justice system is protected. Depending on the seriousness of the Charter breach, the remedy must be such that a sound administration of justice prevails. The chosen remedy must ensure that the trial is fair both from the accused’s perspective and that of society. 28 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d)

74 Whether considered through the prism of “the integrity of the justice system” or through the concept of “bringing the administration of justice into disrepute”, it is clear that the impact of admitting or excluding the evidence on the justice system’s repute must be considered. As such, the circumstances of this case do not suggest that there has been an abuse of process, nor that prejudice was suffered by Mr. Harkat. The fairness of the trial, from the Applicant and society’s perspective, has not been affected by the destruction of source documents or the admission of evidence spawned from destroyed documents. As required by Bjelland, the Court must assess if a less drastic remedy cannot be fashioned. In the present case, remedies were indeed granted, following Bjel- land, the Court must assess if a less drastic remedy cannot be fashioned. In the present case, remedies were indeed granted, following Charkaoui #2 and the disclosure orders issued by this Court. 75 As illustrated, substantial disclosure was given with regard to the summaries and while the source documents have been destroyed, this destruction was subsequent to an effort to preserve their content. It is important to recall the Su- preme Court’s findings in Charkaoui #2, at paragraph 77, with regard to the admission of documents the sources of which have been destroyed: Consequently, it would be premature at this stage of the proceedings for the Court to determine how the destruction of the notes affects the reliability of the evidence. The designated judge will be in a position to make that determination, as he will have all the evidence before him and will be able to summon and question as witnesses those who took the interview notes. If he concludes that there is a reasonable basis for the security certificate but that the destruction of the notes had a prejudicial effect, he will then consider whether Mr. Charkaoui should be granted a remedy. (emphasis added) 76 Therefore, in order to assume this duty, the Court will not exclude the summaries of conversations as evidence for the reasons mentioned above. It is also in the best interest of justice which includes the best interest of society that this certificate case be decided on all the evidence adduced. With the disclosure of these summaries of conversations, Mr. Harkat was in a better position to understand the case made against him and respond to it. The destruction of originals of conversations replaced by summaries of conversations has not caused a prejudice constituting a Charter breach based on an abuse of process theory. No section 24 Charter remedy is called for. Harkat, Re Simon No¨el J. 29

Do any of the following events or restrictions, cumulatively, amount to an abuse of process which would call for a stay of proceeding? Did the destruction of originals by CSIS in accordance with the policy OPS- 217 impair Mr. Harkat’s right to disclosure? 77 For the reasons mentioned above concerning the exclusion of evidence of summaries of conversations, Mr. Harkat’s right to disclosure has not been impaired. In addition, I would refer to Harkat, Re, 2010 FC 1241 (F.C.) and Harkat, Re, 2010 FC 1242 (F.C.), which explain at length the new disclosure process with the participation of special advocates. I would like to make additional comments. 78 Mr. Harkat submits that “it may be just impossible” to establish a procedural mechanism that would result in sufficient disclosure and ensure that the named person will be properly informed of the case made against him and able to respond to it because of national security imperatives. As can be seen from the current legislation, Parliament has adopted a disclosure process which facilitates the named person’s ability to know the case made against him and respond to it. 79 Substantial and relevant evidence was disclosed to Mr. Harkat, which apprised him of the case made against him. The responses presented to refute the allegations reveal that he has been informed satisfactorily. A review of his testimony is also informative in that regard. 80 To be explicit as to the allegations made and some of the evidence disclosed to Mr. Harkat, it is useful to describe and point out some elements disclosed to Mr. Harkat. 81 The security certificate is supported by a Classified Security Intelligence Re- port (“CSIR” or “TS SIR”) from which a Public Security Intelligence Report (“PSIR” — ex. M5) was filed on February 22, 2008, and provided to Mr. Harkat. The public document was available at the time the two special advocates were appointed and they disposed of one month to discuss it with Mr. Harkat and his public counsel prior to the time when the special advocates became privy to the classified information. At that point, the special advocates needed to obtain judicial authorization to communicate since they had received access to the TS SIR. A Revised Public Security Intelligence Report (“RPSIR” — ex. M7), the result of an ongoing process of reviewing the classified information in closed hearings with all involved which brought the disclosure of additional information, was provided on February 6, 2009. Generally, the RPSIR alleges that, prior to and after arriving in Canada, Mr. Harkat engaged in terrorism by supporting terrorist activity as a member of the terrorist entity known as the Bin Laden Network (“BLN”). The allegations and evidence disclosed by the Minis- ters are as follows: (a) Prior to arriving in Canada in October 1995, Harkat was an active member of the Bin Laden Network and was linked to individuals 30 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d)

believed to be in this Network. He was untruthful about his occupa- tion in Pakistan as he had concealed from Canadian authorities his activities in support of Islamist extremist organizations; (b) In Algeria, Harkat was a member of the Front Islamique du Salut (“FIS”), a legal political party at the time. Harkat acknowledged his support for the FIS from 1989. After being outlawed in 1992, the FIS created a military wing, the Armée islamique du salut, which supported a doctrine of political violence, and was linked with the Group islamique armé (“GIA”). The GIA supported a doctrine of depraved and indiscriminate violence, including against civilians. When the FIS severed its links with the Group islamique armé (“GIA”), Harkat indicated that his loyalties were with the GIA. Harkat’s decision to align himself with the GIA is an indication of support for the use of terrorist violence; (c) Harkat was associated with Ibn Khattab; (d) The Algerian Mohammad Adnani (a.k.a. Harkat), a former soldier in Afghanistan, was a member of the Egyptian terrorist organization Al Gamaa al Islamiya (“AGAI”); (e) After arriving in Canada, Harkat engaged in activities on behalf of the Bin Laden Network using methodologies typical of sleepers; (f) In support of clandestine activities, members of the Bin Laden Net- work use false documents. When Harkat arrived in Canada he was in possession of two passports, a Saudi Arabian passport and an Alge- rian passport. The Saudi Arabian passport bearing the name Moham- med S. Al Qahtani was declared and was verified as fraudulent. Saudi passports were determined to be the passports of choice for Muslim extremists entering Canada because prior to 2002, Saudi passport holders did not require a visa to travel to Canada; (g) Harkat used aliases such as Mohammed M. Mohammed S. Al Qahtani Abu Muslim, Abu Muslima, Mohammad Adnani, Moham- med Adnani, Abu Muslim, Mohammed Harkat, and Mohammed — the Tiarti, and concealed them in order to hide his identity and his real activities on behalf of the Bin Laden Network; (h) Harkat kept a low profile as he needed status in Canada following which he would be “ready”. He was a sleeper who entered Canada to establish himself within the community to conduct covert activities in support of Islamist extremism; (i) Harkat used security techniques and displayed a high level of security consciousness to avoid detection; (j) Harkat concealed his previous whereabouts, including the period that he spent in Afghanistan. Harkat also concealed his links with Islamist extremists, including his relationship with persons in Can- ada, in part to disassociate himself from individuals or groups who may have supported terrorism; Harkat, Re Simon Noël J. 31

(k) Harkat maintained links to the financial structure of the Bin Laden Network and concealed these links. He had access to and received, held or invested money in Canada originating from the Bin Laden Network. He also had a relationship with Hadje Wazir, a banker Harkat knew from Pakistan, who is believed to be the same individual as Pacha Wazir — an individual involved in terrorist financing through financial transactions for Ibn Khattab and the Bin Laden Network; (l) Harkat assisted Islamist extremists in Canada and their entry into Canada, and concealed these activities. Harkat counselled Wael (a.k.a. Mohammed Aissa Triki) on his processing through Canadian immigration including denying knowledge of anyone living in Can- ada, and contacting Harkat once cleared through immigration. Harkat spoke to Abu Messab Al Shehre while he was in London, U.K. Al Shehre was searched upon arrival in Canada and found to be in possession of various documents (i.e. a shopping list of munitions and weapons) and paraphernalia (i.e. weapons or parts thereof), including a head banner usually worn by Islamist extremists when in combat, and believed to be covered with written Koranic verses. Al Shehre was detained and Harkat visited him in jail, but denied any previous contact; and (m) Harkat had contacts with many international Islamist extremists, including those within the Bin Laden Network, and other numerous Islamist extremists, including Ahmed Said Khadr and Abu Zubaydah. 82 As part of the RPSIR, the appendices contain a brief description of organizations or individuals such as Al-Qaeda, the Groupe Islamique Arm´e (“GIA”), Ibn Khattab and Ahmed Said Khadr. It also includes six CSIS summary interviews with Mr. Harkat from May 1, 1997 to September 14, 2001, as well as 13 summaries of conversations (the “K conversations”) (see paragraph 61 of the present reasons). These summaries relate to Mr. Harkat, either as a participant in, or as the subject of, the conversation, from September 1996 to September 1998. They are used by the Ministers as support evidence to the allegations. Such disclosure of evidentiary information had never taken place before. The substance of these conversations was carefully set out on the basis of CSIS’s book of information and became exhibits. All counsel involved in the closed hearings made that possible. Finally, the RPSIR also has public information relied upon and immigration documents concerning Mr. Harkat. This type of evidence explains the Min- isters’ view of Mr. Harkat’s situation. 83 As a result of ongoing reviews of the classified information during closed hearings, more detailed factual allegations and evidence were provided to Mr. Harkat and filed publicly on April 23, 2009 (see ex. M10): (a) Harkat operated a “guesthouse” in a suburb of Peshawar, Pakistan. There is information to suggest that the guesthouse may be linked to 32 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d)

Ibn Khattab, and was used by mujahideen who were on their way to or from training camps in Afghanistan with the facilitation of Harkat; (b) There is information that demonstrates that Harkat had access to sums of money when he required it. After he arrived in Canada, Harkat received money from contacts abroad; and (c) There is information to the effect that Harkat worked for the same organization (Human Concern International) as Ahmed Said Khadr and was acquainted with Khadr before Harkat came to Canada. Also, there is information to suggest that Harkat was entrusted with specific tasks on behalf of Khadr. 84 The special advocates took the position that such information had to be disclosed in order to properly inform Mr. Harkat. This was done with documents prepared on the basis of sensitive information. On February 10, 2009, the Minis- ters filed a Supplementary Classified SIR, from which a Supplementary Public SIR (ex. M11) was extracted, which alleges that: (a) From 1994 to 1995 Abu Muslim (a.k.a. Harkat) was an active jihadist in Peshawar who was in the service of Ibn Al Khattab, not Al-Qaeda, for whom he ran errands and worked as a chauffeur; (b) From 1994 to 1995 one of HARKAT’s friend’s was Dahhak. In Feb- ruary 1997, HARKAT contacted an individual in Pakistan whom he addressed as Hadje Wazir. Identifying himself as Muslim from Can- ada, HARKAT asked Wazir whether he knew Al Dahhak. Wazir advised in the negative. It is believed that Dahhak, Al Dahhak and Abu Dahhak (aka Ali Saleh Husain) are the same person, and that this person is associated to Al-Qaeda; and (c) While in Pakistan, HARKAT was known to have had shoulder length hair and a noticeable limp. 85 This information became public as a result of numerous requests made by the special advocates and eventually with the cooperation of the Ministers’ counsel. As a result of a review of the Intelligence files as a consequence of the Charkaoui #2 disclosure, more detailed information was disclosed to Mr. Harkat: 1996 Contacts with Mohammed Aissa Triki: In September 1996. Harkat discussed with acquaintances the upcoming visit to Canada of his Tunisian friend, Wael who used the name of Mohamed Issa for his visit to Canada. (Wael is believed identical to Mohammed Aissa Triki). Harkat counselled “Wael” on his processing through Canadian Immi- gration. Harkat advised Triki to tell his story as it is and not to lie. Then, Harkat advised Triki to deny knowledge of anyone in Canada and instructed Triki to contact Harkat once he had cleared Canadian immigration. Triki, Harkat, Re Simon No¨el J. 33

who claimed to have $45,000.00 dollars when he arrived in Montreal in Sep- tember 1996, travelled directly to Ottawa, and took up residence with Harkat. Triki left Toronto on October 23, 1996, carrying a false Saudi passport bearing the name Mohamed Sayer Alotaibi. Later, in November 1996, it was learned that Harkat would reimburse an individual for any out standing telephone call bills made by Triki while in Canada. Immigration process: In October 1996, it was learned that Harkat did not want to be associated with anybody until he had finished with his Immigration process. Finance: In November 1996, during a conversation between Harkat and an individual, the latter asked how much Harkat was willing to pay to purchase a car. Harkat advised that money was not an issue for him. He furthered that he would pay up to $8,000.00 dollars for a car in good shape. In December 1996, Harkat advised an individual that he would pay $7,650.00 for the car. When asked if he had the money ready, Harkat replied that his friend at the school where he learns English had guaranteed the money for him. Harkat furthered that the money was in the States, and he would be transferring the money. Contacts with Abu Messab Al Shehre: In November 1996, Abu Messab Al Shehre spoke to Harkat from London, United Kingdom. Al Shehre addressed Harkat as “Abu Muslim” and asked how the “brothers” were doing. When Al Shehre said that Harkat might remember him as “Abu Messab Al Shehre of Babi”, Harkat, who identified himself as Mohamed, quickly said that Abu Muslim was not there. When asked, Harkat told Al Shehre that he did not know where Abu Muslin was, and said he did not know when Abu Muslim would be returning. In concluding, Al Shehre said sorry to bother you, Sheikh Mohamed. Later, in Novem- ber 1996, Harkat received an apology on behalf of Abu Messab Al Shehre for the use of Harkat’s alias, Abu Muslim. Harkat tried to avoid being called Abu Muslim. In December 1996, Harkat revealed to an individual that he knew Al Shehre very well and that Al Shehre was his friend. On his arrival in Canada in December 1996, Al Shehre’s effects were searched by officials of Revenue Canada Customs and Excise (RCCE), now known as the Canada Border Services Agency (CBSA). In his possession were various documents and paraphernalia, including a shopping list of munitions and weapons (for example, Kalashnikov rifle, RPG (rocket pro- pelled grenade)) and instructional documents on how to kill. Among the weapons seized by RCCE during their search were a nanchuk (a prohibited weapon under the Criminal Code (of Canada)), a garrotte, and a samurai sword (Wazi). Also found were a shoulder holster (reported to be for a Rus- sian-made gun), a balaclava and a head banner usually worn by Islamist extremists when in combat, believed to be covered with written Koranic verses. As a result, Al Shehre was detained by RCCE. 34 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d)

Throughout this period, Harkat was regularly in contact with certain acquaintances in order to keep abreast of Al Shehre’s situation. Harkat urged one of them to find money to pay Al Shehre’s lawyer, and suggested that that person contact Al Shrehre’s brother abroad and ask him for money. Harkat kept himself abreast of Al Shehre’s situation until the latter’s deportation on May 29, 1997, to Saudi Arabia, where he was arrested on May 30, 1997. 1997 Immigration process: In February 1997, Harkat informed some acquaintances that he had been accepted as a refugee, and that he was now able to apply for landed immigrant status. Contact with Hadje Wazir: In February 1997, Harkat contacted an individual in Pakistan whom he addressed as Hadje Wazir. Identified himself as “Muslim” from Canada. Harkat proceeded to inquire about “Khattab” (believed to be identical to Ibn Khattab) or any of his “people”. Wazir replied that Khattab had not shown up for a long time but his people had. At this point, Harkat asked if Wael (believed to be identical to Mohammed Aissa Triki) was visiting Wazir on a regular basis. Wazir advised in the positive. Harkat furnished his telephone number and asked to be contacted by Wael. Harkat further asked that his telephone number be provided either to Wael or any brother who showed at Wazir’s Centre to do transactions. Harkat went on to explain that he also used to do transactions at Wazir’s Centre. In August 1997, Harkat said that he intended to travel to where Hadje Wazir was residing and ask him for money. Harkat added that he could easily get money from Hadje Wazir. Contacts with Ahmed Said Khadr: In March 1997, Harkat said he had met Ahmed Said Khadr at the Islamic Information and Education Centre (IIEC) in Ottawa and would meet him again shortly. Links with Abu Zubaydah: In March 1997, Harkat discussed financial arrangements with an acquaintance in Ottawa who stated that he contacted Abu Zubaydah, at the “place” where Harkat “used to be”. Abu Zubaydah wanted Harkat to help pay Abu Messab Al Shehre’s legal fees, and Harkat was asked if he could come up with $1,000.00 dollars. Harkat replied that he was ready to pay that amount if he was contacted by Abu Zubaydah. When asked, Harkat said he did not fear being contacted at home by Abu Zubaydah, and that he knew Abu Zubaydah personally. At one point during the discussion, the acquaintance referred to Abu Zubaydah as Addahak / Aldahak Harkat, Re Simon No¨el J. 35

Employment In March 1997, Harkat discussed with a potential business partner the possibility of getting into a business venture together. Harkat revealed that he would travel and get funds from a mutual friend. Harkat explained that he would open a franchise for their mutual friend’s business in Canada. Harkat further said that he would travel to Saudi Arabia to get the money if his future partner was serious about getting into a partnership business. The partner stated that the best business he and Harkat could do was to run a gas station. This business would require $45,000.00 dollars from each partner. Harkat replied that money was not an issue for him. In October 1997, Harkat began working as a delivery person for a pizzeria in Orleans but quit two days later. Attending school: In September 1997, Harkat registered as a full time student at an adult high school located in Ottawa. Harkat wanted to continue his studies in English, physics and chemistry. Past activities: In October 1997, Harkat indicated to an acquaintance that CSIS interviewed Mohamed Elbarseigy for six hours, and the latter told CSIS every thing he knew about him, including that he worked in Amanat. 1998 to 1999 Contact with Abu Messab Al Shehre: In February 1998, in a conversation with Abu Messab Al Shehre, in Saudi Arabia at that time, Al Shehre, who addressed Harkat as our Sheikh, asked Harkat how he viewed his friendship with him. Harkat described it as a kind of brotherhood. Al Shehre replied that it is more than brotherhood. Harkat stated that since he needed status in Canada, he tried to keep a low profile during Al Shehre’s detention, but he managed to send an acquaintance of his to prison and provide Al Shehre with all kinds of help. Harkat asked Al Shehre to send $1,500.00 to cover Al Shehre’s legal fees. Harkat advised Al Shehre to acquire the funds from the “group” if he could not get it on his own. Harkat openly stated that he had to keep a “low profile” as he needed status in Canada. Further, Harkat told Al Shehre that as soon as he received his “status” he would be “ready”. Plans to get married: In June 1998, Harkat indicated to an acquaintance that he feared being ex- pelled by Canadian authorities, so he decided to marry a Muslim Canadian woman to avoid deportation. In February 1999, Harkat advised his girlfriend in Ottawa that he would be coming over to her place the following day to seek her hand in marriage. In July 1999, Harkat revealed to an acquaintance that his parents had also found him a bride in Algeria. When it was suggested that Harkat bring the 36 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d)

bride to Canada, Harkat stated that his current girlfriend in Ottawa would not accept that.” Employment In 1998 and 1999, Harkat held jobs at various gas stations and at a pizzeria. In October 1998, Harkat revealed to an acquaintance that he planned to purchase the lease of a gas station if he was granted status. Harkat revealed that he had no problem finding the money. He only needed $25,000.00 dollars deposit. In August 1999, Harkat made an appointment with Canada Trust to discuss a potential loan of $30,000.00 dollars to invest in a gas station. Plans to Visit Algeria and Tunisia: In December 1998, Harkat revealed that he would be visiting his family in Algeria in the summer of 2001. In August 1999, Harkat told an acquaintance that his family had advised him against returning to Algeria and suggested they meet them in Tunisia. Harkat revealed that if he went to Algeria, he risked being arrested simply because he was someone of importance within the Front. Taking courses: In August 1999, Harkat revealed that he would register at an adult high school to take an English as a second language course. In December 1999, Harkat was looking for someone to pass his taxi driver’s test on his behalf. In February 2000, an acquaintance of Harkat told him that he had found someone to pass Harkat’s taxi driver’s test on his behalf. Finance: In October 1999, Harkat confided to his girlfriend that he had made a mis- take in quitting his other job. He added that he could not afford to not have two jobs because he had large bills to pay. He further revealed that he had argued with the owner of the pizza store over a pay increase and over his schedule and the man had let him go. With two jobs, Harkat related, he used to make $2,500.00 dollars a month and now with only one job at the gas station and working seven days a week, he was making $1,5000.00 dollars a month. Harkat further concluded that his situation would be better if he could pass the taxi driver test in November 1999. However, by the end of the same month he was back working at the pizza store doing the same shift as before. He justified his return to work at the pizza store by noting that he had to pay his debts. 2000 to 2002 Immigration process: From 2000 to 2002, Harkat was very preoccupied with the status of his permanent resident application and often discussed his predicament with his friends. Moreover, during this period, Harkat was in regular contact with Cit- Harkat, Re Simon No¨el J. 37

izenship and Immigration Canada (CIC) to find out the status of his application. Getting married: In March 2000, Harkat believed that the only solution to his problems with immigration was to get married. In April 2000, Harkat found a new girlfriend, Sophie Lamarche. Harkat did not want to put pressure on her in order to get married, however, he was thinking of keeping her as an alternative. In April 2000, Harkat revealed that he talked to Sophie about his situation who in turn told him that she promised to help him at the appropriate time. Harkat revealed that if something happened, he would marry her. In May 2001, it was learned that Harkat had married Sophie in January 2001. Later in May 2001, Harkat revealed that his marriage with Sophie was not serious and he could leave her at any time. Plans to travel to Algeria: In March 2000, Harkat was planning to travel to Algeria in August 2000. In May 2001, Harkat said that once he received his permanent resident status, he would go to Algeria. In June 2001, Harkat indicated that he would like to receive his permanent resident status soon so he could travel to Algeria. In July 2001, Harkat indicated that he was planning to go to Algeria in January 2002. Taking a course: In July 2001, Harkat began a truck driving course. Gambling at the casino: In December 2001, Harkat revealed that he had been going to the casinos for five years and was still going. From1997 to 2002, Harkat regularly went to the Lac Leamy Casino in Hull (Gatineau), and to a lesser extent the Montreal Casino. During this period, Harkat won and lost large amounts of money. According to Harkat, in June 2001, the casino gave him a pass in the first row of the theatre for all the shows at the casino because they knew that he had lost $100,00.00 dollars while gambling. Thus, over the years, Harkat often had to borrow money from his girlfriend and her brother. During his testimony before the Federal Court on October 27, 2004, Harkat acknowledged that he had a gambling problem. Employment: In February 2000, Harkat had three jobs: gas station attendant, pizza delivery man and car parts deliveryman. In March 2000, Harkat resigned from the pizzeria and lost his two other jobs, but found two other jobs, including one at a gas bar. In December 2001, Harkat was receiving unemployment insurance while working for a pizzeria. Harkat indicated that the manager at the pizzeria had agreed to sign a letter stating Harkat had begun to work on the 15th of that month and if asked, Harkat would claim he had worked at the pizzeria on a 38 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d)

voluntary basis when he was bored at home or as a favour when the manager needed some help. Harkat was never paid by cheque therefore they could not prove anything. Previous employment: In September 2001, Harkat indicated that he had worked for Human Concern International (HCI) in Saudi Arabia and for the company ‘Muslim’. (See ex. M15 — the underlined portions show what was previously disclosed to Mr. Harkat. Both groups of lawyers agreed that not all that information could be used as evidence before the Court. It is only reproduced here as an example, among others, to indicate the scope of disclosure made to Mr. Harkat and public counsel as part of the Charkaoui #2 disclosure, but the exhibit number only pertains to the part of the document that was offered in evidence). 86 Further Summaries of Conversations he had in May and June 2001 with members of his family, friends and a fianc´ee and her mother in Algeria were made available to Mr. Harkat and added to the Public SIR following the judgment in Harkat, Re, 2009 FC 167 (F.C.) (see paragraph 61 of the present reasons). Those summaries were disclosed to Mr. Harkat and his counsel, who then had ten days to serve and file a motion asking the Court to treat these summaries of conversations confidentially. Since Mr. Harkat did not file such motion, the summaries became part of the public amended security intelligence report (see ex. M7 at Appendix K). 87 The disclosure made to Mr. Harkat also included further documentation which cannot be included as it is too voluminous (see the annexes to the PSIR, and the RPSIR). 88 Mr. Harkat discussed the quality of the evidence disclosed. He argued that only evidence of lesser importance was disclosed. I disagree. What was disclosed to Mr. Harkat was substantial and directly relevant to the allegations made against him. It was informative and shed light on important facts. 89 To illustrate the scope of disclosure and its effect on the Applicant’s ability to answer the case made against him, the Ministers allege that Mr. Harkat knew Ahmed Said Khadr (a deceased Canadian who was alleged to have been a close associate of Osama bin Laden), worked for him while in Peshawar and met him in Canada after his arrival. Mr. Harkat responded that he only met him once a few days after his arrival in Ottawa and that he did not know him while in Paki- stan, nor did he meet him again in Canada. What is unknown in public is how such evidence was gathered, by whom and from what source(s). The non-disclosed information does not add to the substance of the information. Therefore Mr. Harkat had a substantial knowledge of the allegation made against him and was in a position to respond to it. The special advocates were in a position to test and question what was not disclosed on behalf of the Applicant. Mr. Harkat’s interest was fully represented by what was disclosed publicly and the actions of Harkat, Re Simon No¨el J. 39

the special advocates on his behalf in closed hearing. Leave was granted to the special advocates to communicate with Mr. Harkat on this matter (see Order dated November 10, 2009). Specific findings were made in reference to this allegation, some favourable to Mr. Harkat, some not (see the reasonableness decision, Harkat, Re, 2010 FC 1241 (F.C.), at para 484). This example is also applicable to other allegations as well. 90 The process of disclosure requires that the named person be “reasonably informed of the case made by the Minister” (see subsections 77(2) and 85.4(1) of the IRPA). Furthermore, the Supreme Court held in Charkaoui #1 that fundamental justice requires that the named person be able to know and meet the case made against him. However, information that could be injurious to national security should not be disclosed. In Charkaoui #1, at paragraph 61, the Supreme Court of Canada’s Chief Justice made it clear that the disclosure made must be sufficient to enable the named person to know the case to be met and respond to it. In Charkaoui #2, at paragraph 47, the Supreme Court stated that a more nuanced approach was required “than simply importing the model developed by the Courts in criminal law”. However, in the context of section 7 rights and disclosure, although no particular process is required and the named person is not necessarily entitled to the most favourable procedure available, the process must be fair with regard to the nature of the proceedings and the context (Charkaoui #1, at para. 20 and case law cited therein). 91 It was held in Charkaoui #2 that CSIS’ policy OPS-217 pertaining to the destruction of operational notes was in violation of CSIS’ duty of disclosure. However, the Court did not find it necessary to order a stay of proceedings, as it was deemed premature. It is for the designated judge to determine the impact of the destruction of documents on the credibility of the evidence (Charkaoui #2, at para. 77). While it declined to order a stay, the Supreme Court confirmed CSIS’ disclosure duty towards the Court, which, in turn, provides the named person with filtered, yet relevant information. As such, the orders of disclosure can be seen as a remedy granted with regard to the destruction of operational notes or originals of conversations. 92 While it is true that national security proceedings must adopt a more nuanced approach than strictly importing the approaches developed in criminal law (Charkaoui #2, at para. 47), disclosure does not necessarily extend to all original documents in one’s possession; indeed, even criminal law does not go that far. In R. v. La, at paragraph 18, the Supreme Court stated that: the Crown can only produce what is in its possession or control. There is no absolute right to have originals produced. If the Crown has the originals of documents which ought to be produced, it should either produce them or allow them to be inspected. If, however, the originals are not available and if they have been in the Crown’s possession, then it should explain their absence. If the explanation is satisfactory, the Crown has discharged its obligation unless the conduct which resulted in the absence or loss of the original is 40 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d)

in itself such that it may warrant a remedy under the Canadian Charter of Rights and Freedoms. 93 Furthermore, the Supreme Court determined that the main consideration in assessing the Crown’s conduct in such a case is to consider the circumstances surrounding the loss of the evidence, particularly if steps were taken to preserve the evidence for disclosure (R. v. La, at para. 21). However, the more relevant the evidence, the stronger the degree of care for its preservation is expected of police (R. v. La, at para. 21 in fine). In R. v. La, the Supreme Court also states the obvious case of deliberate destruction of material in order to circumvent the Crown’s divulgation duties. This is clearly an abuse of process (R. v. La, para 22). In R. v. Carosella, [1997] 1 S.C.R. 80 (S.C.C.) (“Carosella”), a third party deliberately destroyed the only source of information that could be of use to the accused in preparation for his defence. No summaries or other forms of conser- vation attempts were made, and the impugned destruction was made with the clear motive to avoid disclosure at an eventual trial. In Carosella, as no substitute or summary of the destroyed documents was provided, a stay of proceedings was ordered, as the accused suffered a clear prejudice in his ability to mount a full answer and defence. 94 The Supreme Court quite aptly stated that: a challenge based on non-disclosure will generally require a showing of actual prejudice to the accused’s ability to make full answer and defence (...) It goes without saying that such a determination requires reasonable inquiry into the materiality of the non-disclosed information. Where the information is found to be immaterial to the accused’s ability to make full answer and defence, there cannot possibly be a violation of the Charter in this respect. I would note, moreover, that inferences or conclusions about the propriety of the Crown’s conduct or intention are not necessarily relevant to whether or not the accused’s right to a fair trial is infringed. The focus must be primarily on the effect of the impugned actions on the fairness of the accused’s trial” (O’Connor, at para. 74). 95 Hence, the Court must assess the effect of the non-disclosure on the named person’s capacity to know and meet the case made against him. In any event, that does not necessarily mean that he must have access to all original materials, so long as adequate substitutes are found, because not all documents may be divulged for confidentiality, national security or other reasons (Charkaoui #1, at para. 61). 96 The probative value of originals is obviously higher than that of summaries, and the Supreme Court has said that the assessment of the reasonableness of a security certificate may be compromised by the destruction of original documents (Charkaoui #2, at para. 42). 97 Most importantly, the Supreme Court explicitly said that its opinion “on the interpretation of s.12 of the CSIS Act and operational policy OPS-217 should not be taken to signify that we consider investigations conducted pursuant to Harkat, Re Simon No¨el J. 41

s.12 and proceedings in which the policy was applied to be unlawful” (Charkaoui #2, at para. 46). As such, and in the light of the above, the Applicant has to show actual prejudice in his capacity to make a full answer and defence in order for this element to be considered as an element of abuse of process. 98 In Jaballah, Re, 2010 FC 224 (F.C.) (“Jaballah (Re)”), Justice Dawson (as she then was), recognized that the right to know the case as explained in Charkaoui #1, was not absolute as long as proper substitutes were found: [32] To summarize, in Charkaoui 1 the Supreme Court found that section 7 of the Charter requires that either a person named in a security certificate be given the opportunity to know and meet the case, or that a substantial substitute for the provision of sufficient information must be found. ... [41] The final difficulty I see with the establishment of causal connection between the section 7 violation and Mr. Jaballah’s testimony is that the Su- preme Court in Charkaoui 1 was careful to recognize that the right to know the case is not absolute. National security considerations can limit the extent of disclosure of information to an effected individual. It appears that the Su- preme Court contemplated that a person named in a security certificate may in future have to proceed in the absence of full disclosure of the case to be met, so long as a substantial substitute is provided for that missing disclosure (for example, a Special Advocate) ... 99 In addition, my colleague, Justice Mosley, in Almrei, Re, 2009 FC 1263 (F.C.) (“Almrei (Re)”) at para. 484, concluded that Mr. Almrei was cognizant of the Ministers’ allegations against him, although he was not given full disclosure. He noted that the Canadian IRPA disclosure process results in the production of more substantial evidence than in the United Kingdom under a similar procedure (see Almrei, Re, at para. 487). He explained that Parliament, in establishing the new IRPA disclosure and special advocates’ provisions, was successful for two reasons. The first being that sufficient understanding of the allegations had been made through public summaries and further disclosure. The second is that the special advocates very effectively performed their role to protect the interests of Mr. Almrei, questioned the undisclosed information and challenged the relevance, reliability and appropriateness of what had not been disclosed (see para. 489). Again in Almrei, Re, the destruction of original interviews notes was not deemed an “issue of major concern”, as the Court was satisfied with the contem- poraneous reports that were prepared (Almrei, Re, at para. 492). I agree, and his comments also apply to the present certificate proceeding. 100 For these reasons, it is impossible to conclude that the IRPA disclosure process and the disclosure made (some of it disclosing summaries of originals) have resulted, in this case, in an abuse of process. Substantial, important disclosure took place in the interest of Mr. Harkat which in my opinion gave him good knowledge of the case and he was able to respond to it. There was not full disclosure since national security concerns needed to be addressed, but the classi- 42 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d)

fied information was known by the special advocates and they actively tested it on behalf of Mr. Harkat. In any event, since there was ample disclosure, Mr. Harkat did not show or suffer an actual prejudice in his capacity to answer the case made against him.

The impact of the destruction of documents on the special advocates’ duty to represent the interest of Mr. Harkat 101 Mr. Harkat submits that, since he was not apprised of all the evidence submitted, he is not in a position to properly instruct his public counsel and special advocates, and therefore is not in a position to properly rebut the case made against him. The Applicant argues that the special advocates must receive disclosure based on Stinchcombe standards. As such, the destruction of source documents is argued to have irreparably hindered the special advocates’ ability to fulfill their legal mandate with regard to the assessment of the evidence. As recognized in Charkaoui #1, the statute in force before the subsequent creation of the special advocates was unconstitutional and violated the named person’s section 7 rights. 102 However, the comments outlined in Charkaoui #1 at paragraph 20 remain relevant: Section 7 of the Charter requires not a particular type of process, but a fair process having regard to the nature of the proceedings and the interests at stake: United States of America v. Ferras, 2006 SCC 33 (CanLII), [2006] 2 S.C.R. 77, 2006 SCC 33, at para. 14; R. v. Rodgers, 2006 SCC 15 (CanLII), [2006] 1 S.C.R. 554, 2006 SCC 15, at para. 47; Idziak v. Canada (Minister of Justice), 1992 CanLII 51 (S.C.C.), [1992] 3 S.C.R. 631, at pp. 656-57. The procedures required to meet the demands of fundamental justice depend on the context (see Rodgers; R. v. Lyons, 1987 CanLII 25 (S.C.C.), [1987] 2 S.C.R. 309, at p. 361; Chiarelli, at pp. 743-44; Mount Sinai Hospital Center v. Quebec (Minister of Health and Social Services), 2001 SCC 41 (CanLII), [2001] 2 S.C.R. 281, 2001 SCC 41, at paras. 20-21). Societal interests may be taken into account in elucidating the applicable principles of fundamental justice: R. v. Malmo-Levine, 2003 SCC 74 (CanLII), [2003] 3 S.C.R. 571, 2003 SCC 74, at para. 98 103 Following Charkaoui #1, which decided that the right to full disclosure is not absolute, Justice Dawson stated in Jaballah, Re, at paragraph 41: National security considerations can limit the extent of disclosure of information to an affected individual. It appears that the Supreme Court contemplated that a person named in a security certificate may in future have to proceed in the absence of full disclosure of the case to be met, so long as a substantial substitute is provided for that missing disclosure (for example, a special advocate). 104 Furthermore, the legislation runs counter to the Applicant’s arguments with regard to the special advocates’ role: firstly, the designated judge has a duty to Harkat, Re Simon No¨el J. 43

ensure that the named person is reasonably informed of the case made against him, while avoiding the disclosure of national security information that could be injurious. Secondly, a summary of the SIR is made available to the named person at the beginning of the hearing. His public counsel and special advocates have a reasonable period of time to review the PSIR prior to giving the special advocates access to the SIR. Once that is done, the special advocates review, test and challenge the claims of non-disclosure and the evidence supporting the SIR. As it is the case here, more substantial disclosure was made as a result of the special advocates’ work and the Ministers’ counsel throughout the proceeding. 105 Mr. Harkat and his public counsel have been able to communicate in writing with the special advocates throughout the proceeding without the intervention of the designated judge. If at any time, the special advocates wished to communicate with Mr. Harkat and his public counsel, they could do so with a court authorization. Under the IRPA process, Mr. Harkat has often been able to instruct his public counsel and special advocates. 106 The PSIR gives relevant information as to the allegations made, and it includes some of the evidence in support thereof. This did allow Mr. Harkat to inform his public counsel and special advocates of his past activities in Algeria, Pakistan, and Canada. Names of key individuals are mentioned and also organizations that, in the Ministers’ opinion, he was tied to. As the disclosure evolved, he was also in a position to update his instructions to his public counsel and special advocates. In good part, the Court gave permission, with certain conditions, to the Special Advocates for them to speak to Mr. Harkat and his public counsel. An authorization is given if the designated judge is satisfied that the format and the topics of discussion will not facilitate an inadvertent disclosure of national security information. 107 The specific information that he is not privy to is known to the special advocates. They have the power to question the relevance, reliability and sufficiency of such classified evidence. The IRPA provisions even provide them with more powers to test this evidence with a court authorization. With their important in- put, as was seen during the course of the proceedings and also with the collabo- ration of Ministers’ counsel, appropriate summaries of information containing substantial information were made, but sensitive national security information was omitted. 108 Hence, the special advocates have the statutory mandate to “protect the interests” of the named person (subsection 85.1(1) of the IRPA) by challenging the Ministers’ refusals to disclose information on national security grounds and the sufficiency, reliability and relevance of the information submitted (subsection 85.1(2) of the IRPA). Communication between the special advocate and the named person benefits from a protection comparable to that of solicitor-client privilege, but the relationship between the special advocates and the named person falls short of a solicitor-client relationship (subsections 85.1(3), (4) of the 44 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d)

IRPA). While communication emanating from the special advocates to the named person are subject to court authorization (subsection 85.4(2) of the IRPA), the named person is under no restriction as to the information he may submit to the special advocates, to enable them to better fulfill their legal mandate. 109 An example of the wide-ranging powers and duties of special advocates is detailed in Jaballah, Re, at paragraph 23: Additionally, a person named in a security certificate has the right to have his or her interests protected in closed proceedings by a special advocate. As the public communications that have been released to Mr. Jaballah show, in the present case the special advocates have cross-examined Service witnesses, sought and obtained disclosure of further information to Mr. Jaballah, directed inquiries seeking further information from counsel for the Ministers, and moved on the closed record for an order staying the proceeding on grounds of abuse of process and res judicata 110 Furthermore, the ability of the special advocates to protect the named person’s section 7 rights seems to have been accepted by Justice Mosley in Almrei, Re, at paragraph 489: This is essentially the same conclusion as that reached by the Supreme Court of Canada in Charkaoui 1 in 2007. The individual must be provided with full disclosure or a “substantial substitute” to full disclosure. In my view, Parlia- ment’s effort to craft a suitable alternative was successful in this case for two reasons. The first is that the respondent was provided with a sufficient understanding of the allegations that were made against him in the SIR through the public summary and the further information that was ordered disclosed. The second is that the special advocates very effectively performed the roles for which they were given a statutory mandate: to protect the interests of the respondent in the closed proceedings; to question the withholding of information; and to challenge the relevance, reliability and appropriateness of the non-disclosed information and other evidence relied upon by the Ministers. 111 In view of their broad powers and duties as well as their far-reaching access to the underlying information to the Ministers’ documents regarding the named person, the special advocates have had substantial access to the Ministers’ file. The special advocates have adequately represented the named person, as man- dated by the legislation. While the destruction of source material is not an ideal development, the subsequent disclosure of documents ordered by the Court, and the involvement of the special advocates has ensured that the named person’s section 7 rights have been safeguarded throughout the proceedings. There has been “substantial substitute”, as dictated by Charkaoui #1. The active participation of the special advocates and their far-reaching access to information gave them, and the Court, full knowledge of the case which resulted in additional disclosure. No prejudice to Mr. Harkat was caused by the destruction of original documents. Harkat, Re Simon No¨el J. 45

112 Nothing prevents the named person from giving all of the relevant information he possesses to the special advocates to enable them to defend him. The destruction of some originals has not hindered the special advocates’ work and the named person’s section 7 rights have been safeguarded. In any event, no prejudice to Mr. Harkat’s ability to make a full answer and defence has been shown, other than in general terms. That has not resulted in an abuse of process. 113 Therefore, with the involvement of the special advocates, the IRPA process for disclosure of evidence did give Mr. Harkat the ability to instruct both his public counsel and special advocates. Under the IRPA regime, the named person is able to know the case made against him and to respond to it. Proper instructions can be given within such a system.

The alleged breach of CSIS’ duty of candour 114 It will be useful at this stage to define what is the Ministers and CSIS’ duty of candour, its sources and how it pertains to the case at bar. The notion of duty of candour was set out by the Supreme Court in Ruby v. Canada (Solicitor Gen- eral), 2002 SCC 75 (S.C.C.) (“Ruby”). The duty applies to in camera and ex parte proceedings, where the party making submissions privileged and exclusive access to the court, and is therefore in a position with potential for abuse. The party also has full control over the bank of information from which the facts used to support the allegations are taken. One of its duties is to ensure that a complete review of the information will be made, including that which might be detrimental to the case. This information must be disclosed so that it can be reviewed by the designated judge and the special advocates. Generally, the Su- preme Court stated that: In all cases where a party is before the court on an ex parte basis, the party is under a duty of utmost good faith in the representations that it makes to the court. The evidence presented must be complete and thorough and no relevant information adverse to the interest of that party may be withheld (...) when making ex parte submissions to the reviewing court, the government institution is under a duty to act in utmost good faith and must make full, fair and candid disclosure of the facts, including those that may be adverse to its interest (Ruby, at paras 27 and 47) 115 Under Ruby, the duty of candour is thus first and foremost a duty of good faith in the representations made and the evidence presented. The qualification of the existence of duty of candour per se in relation to security certificate proceedings arises from Justice Mosley’s decision in Almrei, at paragraph 500: “The duties of utmost good faith and candour imply that the party relying upon the presentation of ex parte evidence will conduct a thorough review of the information in its possession and make representations based on all of the information including that which is unfavourable to their case”. 46 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d)

116 It is obvious that the duty of candour can and should be assimilated in fact, and in language, to the duty of utmost good faith as defined in Ruby. The duty of utmost good faith must also be considered in the light of the particular circumstance of security certificate proceedings. The nature of security certificate proceedings requires ongoing disclosure, provided that further disclosure is not sought on tactical grounds and in bad faith (Charkaoui #2, at paras. 71-73). A functional definition of what constitutes an ex parte hearing will be useful. In such a proceeding, there are no procedural safeguards and no accountability as to what is submitted by a party; it is simply governed by a duty of good faith, as per Ruby. Can the closed hearings necessary to address sensitive and protected information be qualified as a true ex parte proceeding? In a formal sense, it is an ex parte proceeding: the named person and his public counsel are absent. How- ever, in a functional sense, the in camera certificate hearings require, in the wake of Charkaoui #1 and the subsequent amendments to IRPA, the presence of the special advocates. In addition, the judge plays an active role in assessing the evidence and the required steps to take to address the fairness of the procedure towards the named person (Charkaoui, Re, 2004 FCA 421 (F.C.A.), at para 80: “Furthermore, throughout the process, the designated judge plays a pro-active role in the interest of ensuring fairness”). In Charkaoui #1, this role was accepted by the Supreme Court of Canada (see paras. 32 and following). The special advocates have started to participate in closed hearings, and the Court has adjusted accordingly. Therefore, the process must unfold according to the parameters set by this new adversarial system. 117 The duty of good faith is meant to ensure that a judge is not given a distorted account of the facts. Hence, it must be recognized that: Charkaoui #2 disclosure, the presence of the special advocates and the role and duties of the designated judge, greatly reduce the risks of CSIS and the Ministers acting in violation of their duty of full, frank and fair disclosure, in other words their “duty of candour”. The so-called “duty of candour” is nothing more than the utmost good faith duty as per Ruby, which applies in security certificate proceedings, as was held in Harkat, Re, 2009 FC 1050 (F.C.) and Charkaoui, Re, 2004 FCA 421 (F.C.A.). The nature of the security certificate proceedings and the legal requirements of disclosure further reinforce this duty of candour. Hence, the role of the special advocates and the nature of Charkaoui #2 disclosure have provided safeguards with regard to the Ministers and CSIS’ duty to act in good faith. 118 In Almrei, at paragraph 499, Justice Mosley concluded that Bill C-3, including the participation of special advocates in the closed hearings, did not abolish the duties of utmost good faith and candour. These duties still stand since national security evidence is dealt with in closed hearings and the named person and public counsel are not present. I agree. The duties of utmost good faith and candour still apply to both the Ministers and CSIS. Mosley J. also found that, in the Almrei case, such duties were breached in that a thorough review of the Harkat, Re Simon No¨el J. 47

information had not been made and, as a result, the SIR was assembled with information that could only be construed as unfavorable to Mr. Almrei. He decided not to grant a stay of the proceeding and opted for a determination on the reasonableness of the certificate as the proper remedy (see paras. 500 and 503). 119 Additional comments are called for with regard to the prospective impact of Charkaoui #2 disclosure and its relation with the duty of good faith. While present cases overlap with the Charkaoui #2 ruling and disclosure rules, future cases will not result in such an overlap. Files and cases constructed by CSIS will have original materials, in keeping with Charkaoui #2’s findings on the Minis- ters and CSIS’ duties. Accordingly, the duty of good faith arising from Ruby will also apply to security certificate proceedings, and the Ministers and CSIS will not be exempted of their duty of good faith even if the files will contain the original material. The Ministers’ will always have a duty to report it faithfully in ex parte and in camera proceedings. 120 Each case has to be assessed on its own facts and my review of the Charkaoui #2 disclosure allows me to say that the recent SIR did present a proper view of all the evidence and that nothing of a favourable nature for Mr. Harkat’s case could have been found and required to be included. There was the issue of a human source and polygraph results (which were not properly disclosed initially) but that was dealt with specifically as seen in these reasons. A remedy was granted. In general, the duties of utmost good faith and candour were respected by both the Ministers and CSIS. No finding under an abuse of process theory can be made in this respect.

The passage of time 121 It is the view of Mr. Harkat that the passage of time, the time associated with the previous first certificate proceeding, delays attributed to the Ministers and an undefined prejudice amount to an abuse of process. Again, I disagree. 122 The certificate in issue herein was filed on February 28, 2008. Public and closed hearings were held beginning in September 2008 and final submissions were heard in the early summer of 2010. All judgments pertaining to the hearings were issued in fall 2010. Taking into consideration the great number of lawyers involved (their work was substantial and it has been difficult to schedule the hearings for all of them), the disclosure process which included thousands of documents produced as a result of Charkaoui #2, the participation of a number of witnesses in public and closed hearings, it took a little more than 32 month for the Court to render three substantive judgments; which is not unreasonable. 123 The previous proceeding under the former IRPA was commenced in Decem- ber 2002. This legislation was declared in part to be unconstitutional by the Su- preme Court in Charkaoui #1 and gave the government one year to correct the flaws identified. Meanwhile, the status quo remained and Mr. Harkat remained subjected to the same conditions of release of his detention. Surely, the delay 48 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d)

incurred as a result of the rulings of the Supreme Court cannot be used as an argument in support of an abuse of process theory. 124 This proceeding did raise many issues, the resolution of which took time: the disclosure process, the motions to access human sources files, employee file, solicitor-client communication issues, reviews of conditions of release, ongoing specific matters, the search of Mr. Harkat’s home, the human source and the polygraph issue. Delays are inevitable since they are the product of human inter- actions and systems in constant evolution. While circumstances may vary, no actions which resulted in further delays were intentional or deliberate, designed to slow down the process. Therefore, no party is to be blamed for any uncontrol- lable delay. 125 Passage of time did not result in a prejudice impairing Mr. Harkat’s ability to make a full answer and defence. 126 The facts of the present case go back to the early 1990’s. Because of his application to obtain refugee and permanent resident status, Mr. Harkat has documented his past life. This information is part of the evidence of this proceeding. Beginning in 1997, Mr. Harkat was interviewed by intelligence officers on his past life. He was arrested in December 2002 and this is when he became officially cognizant of the specific allegations made against him. Since then, with the help of counsel, he has been in a position to prepare his defence. His most recent testimony did indicate that he had a good knowledge of the facts in issue and his narrative concerning his past life did not reveal any memory lapse, on the contrary. Passage of time did not decrease the quality of the evidence, nor did it impact on his ability to challenge the allegations made. Factual witnesses (including himself), and expert witnesses did testify on his behalf. His public counsel produced professional submissions of a high quality, which clearly show a very good knowledge of the legal issues. 127 In Blencoe, the Supreme Court noted that “delay, without more, will not warrant a stay of proceedings as an abuse of process at common law. Staying proceedings for the mere passage of time would be tantamount to imposing a judicially created limitation period” (Blencoe, at para. 101). The Supreme Court further considered several criteria to be considered when assessing if a delay is excessive: The determination of whether a delay has become inordinate depends on the nature of the case and its complexity, the facts and issues, the purpose and nature of the proceedings, whether the respondent contributed to the delay or waived the delay, and other circumstances of the case. As previously mentioned, the determination of whether a delay is inordinate is not based on the length of the delay alone, but on contextual factors, including the nature of the various rights at stake in the proceedings, in the attempt to determine whether the community’s sense of fairness would be offended by the delay. (Blencoe, at para. 121) Harkat, Re Simon No¨el J. 49

128 It is not my intention to review each factor. It seems to me that a period of less than three years was reasonable considering the nature of the proceeding, the new IRPA procedure to follow, the complexity of the issues, the creation of special advocates, the thousands and thousands of documents produced as a result of Charkaoui #2, and the involvement of 14 lawyers in the course of these proceedings. On a number of occasions, this Court reminded all counsel that the legislation required the judge to proceed as informally and expeditiously as the circumstances and considerations of fairness and natural justice permitted (see paragraph 83.1(a) of the IRPA). With that legislative objective in mind, the proceeding arrived at some finality within a reasonable time. 129 In addition to the detailed account of the proceedings and the inherent delays they generated, let us outline the most relevant contextual factors to be considered in the case at bar: • These proceedings were taken pursuant to a regime that has been as- sailed in almost every respect through Charter challenges and various motions. Some of these challenges were eventually decided by the Su- preme Court. As such, the context of the proceedings is that of an evolv- ing body of law, refined by the Court and modified by Government in order to comply with the Court’s ruling. • The case itself revolves around a complex factual picture that spans over several years. • Charkaoui #2 disclosure resulted in the disclosure of several thousand pages of documents, which were reviewed for redaction purposes. Then, the special advocates identified some of the Charkaoui #2 information for disclosure purposes. • As recognized in Harkat, Re, 2004 FC 1717 (F.C.) and Harkat, Re, 2005 FC 393 (F.C.), the Applicant contributed to the delays in the proceedings. • The nature of the evidence is a factor to be considered (Valle Lopes v. Canada (Minister of Citizenship & Immigration), 2010 FC 403 (F.C.)). However, the Applicant’s submissions are to the effect that he suffered prejudice from the delays as a result from “the limitations of human memory”. But the Applicant’s attitude towards the evidence is that of a general, broad denial of the evidence, of conversations and of knowing some people. Passage of time cannot be said to be prejudicial when one responds with a general denial. If a named person was to counter evidence with nuanced, fact-based contentions, then passage of time could be said to have caused prejudice. Such is not the case here. • The previous proceedings to contest the constitutionality of the previous IRPA regime cannot be counted as constituting an unreasonable and prej- 50 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d)

udicial delay, as their sole purpose was to uphold the named person’s Charter rights and were not vexatious in any manner. 130 Consequently, in keeping with the contextual analysis presented in Blencoe, passage of time in this case has not resulted in abuse; it has not caused prejudice. The community’s sense of justice and decency cannot be said to have been offended by the delays in the present proceedings.

The solicitor-client communications 131 Mr. Harkat submits that some solicitor-client conversations were recorded and retained even though it has been claimed by the CBSA that a practice of disassociation is followed. It is true that such conversations were recorded, but they were not listened to. A practice of disassociation was followed. 132 This ambiguity arose as a result of the initial conditions of release of Mr. Harkat which included the monitoring of Mr. Harkat’s conversations and did not address the issue of conversations with counsel. Such conditions were drafted by counsel for the parties. 133 When this issue arose in the fall of 2008, this court amended the conditions to clarify the matter: “For greater certainty, when the content of intercepted oral communications associated with the land-based telephone line in the Harkat residence in- volves solicitor-client communications, the analyst, upon identifying the communication as one between solicitor and client, shall cease monitoring the communication and shall delete the interception.” (see Order, December 23, 2008, adding paragraph 13.1 to the Order dated December 5, 2008) 134 The Court also dealt with the matter of intercepts of communications which would relate to solicitor-client in public and closed hearings. At the public hearing held on December 15, 2008, the following summary of the closed hearing was read by the Court: “Telephone calls to and from Mr. Harkat’s house are intercepted pursuant to the Court’s orders and the consents provided by the parties. CSIS does the actual interception of the calls as an agent for CBSA. CBSA analysts listen to the intercepted conversations. Some of that material contains recording of telephone calls between Mr. Harkat and his solicitors. Once a CBSA analyst realizes that a communication is subject to solicitor- client privilege, the analyst disengages, which is to say that they stop listen- ing to that call and do not listen to any further part of that call. Sometimes the analyst will have to listen to the beginning of a call to determine that a lawyer or one of their staff is on the line. The CBSA adopts a broad definition of solicitor-client privilege communication. Any call from a lawyer or anyone in that lawyer’s office is treated as privileged. This policy of disengaging from privilege calls is not set out in Harkat, Re Simon No¨el J. 51

writing. CBSA analysts are advised of the policy verbally when they begin to work on these files. Mrs. Snow is not aware of anyone communicating this policy to counsel or to CSIS. The material is stored in a secure manner. Mrs. Snow is aware of evidence given by Mr. Philip Whitehorne in the Mahjoub case regarding intercepted communications. Mr. Whitehorne is a manager with Northern Ontario Re- gional Office, NORO, of the CBSA. He is not part of Mrs. Snow’s unit and does not report to her. Mrs. Snow’s understanding is that CSIS contacted NORO directly about one conversation between Mr. Harkat and his counsel which raised urgent issues regarding the safety of persons. It was a privacy matter. I am the one adding this: It was a private matter. This communication was outside of the usual delivery of material to the CBSA referred to above. The information was communicated directly to NORO in this case because of a perceived urgency of the situation. NORO deals directly with supervision of the conditions, outings, visitors. NORO contacted the Counter-Terrorism Unit. The information was not acted upon in an operational way and was not sued for any other purpose. The urgent situation ultimately resolved itself. Mrs. Snow heard from someone at NORO that the situation was resolved, but she is not sure how that information was obtained. The details of that personal matter was communicated to counsel for Mr. Harkat a few moments ago in my chambers. Apart from the phone call referred to above and the short portions of calls in which analysts determine that a call is privileged, the CBSA has not been made aware of the content or any other solicitor-client telephone call. No e- mail has been intercepted between Mr. Harkat’s lawyers and anyone living with Mr. Harkat.” (see Transcript of Proceedings, December 15, 2008, at 2 to 5 and see Tran- script of Proceedings, December 16, 2008, at 163-164) This was the situation up to the end of 2008. 135 Recently, a letter dated August 30, 2010 from Mr. Michael Pierce, Minis- ters’ counsel dealing with solicitor-client matters, updated the situation. No solicitor-client information dealt with during communications was listened to beyond the point of identification. 136 As soon as some indications were made in relation to a potential issue concerning solicitor-client communications, this Court intervened to clarify the matter, analyzed it and reported on it in public. No issue has arisen since the matter was clarified in December 2008. Therefore, no facts that could suggest an abuse of process have been shown. 52 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d)

The search of Mr. Harkat’s residence 137 On May 12, 2009, the Canadian Border Safety Agency (CBSA) conducted a search of Mr. Harkat’s residence. When hearing about this search and the way it was conducted, this Court amended the conditions of release to ensure that its authorization would be obtained prior to any future search (see Order dated May 12, 2009). Of their own initiative, the Ministers kept the items seized in a sealed envelope until the decision of the Court. 138 In addition, the Court ordered a hearing into the search and referred the solicitor-client privilege issue arising from the material seized to Prothonotary Tabib to determine any issues related to the privilege, if any. The prothonotary ordered the return of some privileged material to Mr. Harkat (see Order dated May 21, 2009). Therefore, no breach of solicitor-client privilege resulted from this search. 139 As a result of the hearing, the search was found to be unreasonable and it was ordered that all information, items and records seized be returned to Mr. Harkat Harkat, Re, 2009 FC 659 (F.C.)). Full relief has been granted with regard to the search of the Applicant’s home. The Court did not condone CBSA’s conduct and highlighted the unlawful and abusive character of the search without hesitation and without ambiguity. For example, the Court stated at paragraph 59: On reviewing the evidence before the Court, I conclude that paragraph 16 of the former order did not authorize the intrusive and over broad nature of the search and seizure undertaken by CBSA on May 12, 2009. A judicial authorization to search must be interpreted reasonably, using common sense, in light of the obligations of all state actors to comply with the Charter. The broad and liberal interpretation given to paragraph 16 by the CBSA, as evi- denced in the testimony of the witnesses, is unacceptable when dealing with the privacy rights of persons living in Canada. Thus, a Charter breach for which a remedy has been granted cannot call for a stay of proceedings.

The human source and polygraph issues 140 The human source and the polygraph issue was raised in a letter dated May 26, 2009, whereby the Ministers’ counsel informed the Court that some information of importance concerning a human source and a polygraph result had not been disclosed. Immediately, the Court ordered exceptionally that a complete human source file be disclosed to the Court and the special advocates (see Harkat, Re, 2009 FC 553 (F.C.)). After a thorough closed hearing on the matter, it was found that there had been no deliberate effort to mislead the Court on any witnesses’ part. A series of institutional shortcomings had the effect that some relevant information was not presented before the Court and that it could have resulted in a serious prejudice to Mr. Harkat if not disclosed. Exceptionally, it was ordered that another human source file be made available to the Court and Harkat, Re Simon No¨el J. 53

the special advocates. Such a remedy was called for to restore trust and confidence in the process while at the same time to protect human sources for the sake of national security (see Harkat, Re, 2009 FC 1050 (F.C.)). The special advocates had asked for a Charter section 24 remedy, seeking the exclusion of any evidence originating from the first human source. This remedy was denied. 141 The Court further found, in Harkat, Re, 2009 FC 1050 (F.C.), that the deficiencies of disclosure with regard to the reliability of certain human sources was the result of institutional shortcomings, and not of bad faith or otherwise malicious attitude on the part of CSIS. 142 As the Court noted, serious prejudice could have resulted had the findings not been made with regard to the reliability of human sources. However, such findings were made and an efficient remedy was granted by the Court. Hence, it is not necessary to relitigate this issue. 143 In both circumstances, remedies were granted to rectify the situation created. These remedies were significant: the return of all material seized to Mr. Harkat as a result of the search and the new requirement of a court authorization prior to future search, the production of two human source files viewed by the Court and the special advocates. Important remedies have been granted, and nothing war- rants another intervention of this Court.

The cumulative effect 144 It is useful here to recall the three applicable criteria in assessing whether there has been an abuse of process calling for a stay of proceedings: (1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; (2) no other remedy is reasonably capable of removing that prejudice (O’Connor, at para. 75); and (3) society’s interest in proceeding with a full hearing and a final decision on the merits of the case is put in the balance and assessed (Regan, at para. 57). 145 In the case at bar, the constituting elements of an abuse of process are to be considered as to their cumulative impact. The submissions made simply dwell on past and alleged breaches, most of which have been remedied by the Court. The possible grounds that have not been dealt with, for example the passage of time and the alleged breach of the duty of candour, do not suggest in any way that there has been an abuse of process, much less one that would call for a stay of proceedings. If anything, the conduct of the proceedings has not perpetuated or aggravated the impugned conduct, but have remedied it. On numerous occasions, the Court has been attentive and responsive to the Applicant’s Charter rights. Hence, as proceeding with the closed and public hearings does not satisfy the first criterion and as other remedies have already been granted, a stay of proceedings is not called for. 54 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d)

146 Furthermore, for the sake of greater clarity, in view of the third “public interest” criterion, the public interest calls for the prosecution of the case. It is alleged that a considerable time has passed. Substantial public resources have been allocated to the proceedings against the Applicant. To stay the proceedings, without adjudication on the Ministers’ claim that Mr. Harkat’s certificate is reasonable based on security grounds, would offend the general public’s sense of justice, rather than enhance it. The seriousness of the charges and the public interest in seeing them adjudicated on their merits have been recognized (Al Yamani v. Canada (Minister of Citizenship & Immigration), 2003 FCA 482 (F.C.A.)). In addition to the best interest of the community, Mr. Harkat himself has a personal interest in a decision on the merits, regardless of the outcome. One cannot stay the proceedings and leave a cloud of uncertainty on Mr. Harkat’s reputation. A stay of proceedings is not meant to punish public authorities (Tobiass). Consequently, it is in the public interest to see the issues decided on the merits. 147 The cumulative effect of different factors have not resulted in an abuse of process. A stay of proceedings is not an appropriate remedy.

Certified questions 148 The parties are invited to submit questions for certification. They have fif- teen (15) days to do so. Upon receipt of the questions submitted for certificate, the parties shall have five (5) days to comment on them if required.

Order THIS COURT ORDERS AND ADJUDGES that: • The motion based on abuse of process requesting the exclusion of summaries of conversations or a stay of proceedings is dismissed. Motion dismissed.

Simon No¨el J.:

Redacted Top Secret Annex A to the Public Reasons for Order and Order concerning the abuse of process motion. Neutral citation No. 2010FC1243

Annex “A”

1 The special advocates brought a motion during the in camera submissions, stating that the Ministers had breached their duty of candour and utmost good faith as they did not bring their best efforts to gather the information for the Court in order for it to reach an informed decision. They are seeking a stay of the proceeding. The Ministers submit that such duty does not apply to in camera proceedings. Assuming it does, they suggest that it has been met. In order to Harkat, Re Simon No¨el J. 55

fully understand the present order, these reasons should be read in conjunction with the public reasons issued on the matter.

Special Advocates’ submissions 2 During the in camera submissions, the special advocates argued that the Ministers and the Service breached the duty of candour and utmost good faith required in security certificate proceedings as they did not make their best efforts to gather all available information to assist the Court in reaching a proper and informed decision. They rely only upon Ruby v. Canada (Solicitor General), [2002] 4 S.C.R. 3 (“Ruby”) as authority for the existence of the duty of utmost good faith. Moreover, the special advocates submit that the Ministers and CSIS failed to obtain all information and opinions XXXXXXXXXX they failed to attempt to obtain a meaningful update or assessment of Abu Zubaydah XXXXXXXXXX they failed to seek to obtain additional information on Triki XXXXXXXXXX and they never sought to obtain information concerning Wazir until extremely late in the proceedings and only after it was learned that Wazir had been released from custody. The special advocates submit that the duty of utmost good faith as defined in Ruby (which obliges the Ministers to disclose pertinent information including information not favourable to their position) should be enlarged to include an obligation to update the evidence as the proceeding evolves. 3 The special advocates made reference to the open counsel and Ministers’ argument regarding the abuse of process, as well as to the arguments and case law cited in the Ministers’ written submissions in response to the abuse of process motion, more specifically with regards to the part on the stay of proceedings. Except for the reference to Ruby, the special advocates did not submit any other jurisprudence to support the submission that the duty of utmost good faith should be enlarged to include a duty to update the evidence as the procedure is ongoing.

Ministers’ submissions 4 The Ministers replied that the duty of utmost good faith does not apply as general rule to security certificate proceedings. They argued that the special advocates are not referring to the duty of utmost good faith applied to counsel’s obligations in ex parte proceedings where the decision maker can be misled by a one-side presentation of relevant facts. Rather they seem to be referring to the duty to inquire applicable to a Crown prosecutor in a criminal proceeding. The Ministers submit that such duty does not exist, or assuming it does, the Ministers fully satisfied it and acted reasonably in the circumstances. 56 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d)

Analysis 5 Without having to pronounce myself as to the scope of the duty of utmost good faith in in camera hearings, the facts of this case show that the Ministers and CSIS made efforts to obtain the information and update it. In the present proceedings, the Court and the parties have had the privilege to have the complete disclosure of XXXXXXXXXX human source files. An evaluation was done accordingly. This information is usually protected by a covert intelligence human source privilege (see Harkat (Re), 2009 FC 204). Having reviewed the entire evidence concerning the human sources, including XXXXXXXXXX, the Court finds that there was no obligation to update the information with XXXXXXXXXX. CSIS reported all the information they received from XXXXXXXXXX to the Court and the special advocates. XXXXXXXXXX In any event, the Service has provided the information and it is to the Court to determine the significance of such evidence. The special advocates’ wish to have some information updated XXXXXXXXXX is therefore not necessary since the Court considers that it had information to make findings XXXXXXXXXX. 6 The duty of the Ministers to get updated information was brought up during the public hearings. The Court made it clear that, although it could not force the Ministers to go back to their sources and ask for updates, it would help the Court if something was done (see Transcript of public Proceedings, Vol. 24 at 145, 146 and 147) However, as stated by counsel for the Ministers during the public hearing, public counsel has been made aware of the efforts made by the Minis- ters to get more information on both Mr. Zubaydah and Mr. Wazir (see Tran- script of public Proceedings, Vol. 25 at 2). In response, the Ministers sent a request XXXXXXXXXX and received their answer regarding Abu Zubaydah (see ex. M65). They also sent XXXXXXXXXX a request XXXXXXXXXX concerning Hadje Wazir. Since they had not received new information and that the Court allowed the parties to file any new information until August 31, 2010, the Ministers contacted XXXXXXXXXX in early August 2010 to inquire about any new information regarding Hadje Wazir. As of August 31,2010, no information has been received XXXXXXXXXX regarding Mr. Wazir (see ex. M73). The Ministers therefore discharged themselves of their duty and made reasonable efforts to get updated information XXXXXXXXXX. Whether the response XXXXXXXXXX was adequate or not cannot be controlled or dictated by the Ministers. It may not be to the satisfaction of the special advocates but it is the Court’s responsibility to assess the evidence as it is presented. 7 In relation to Triki, the evidence indicates that the information as presented was sufficient, as illustrated by the reasonableness decision. Considering the XXXXXXXXXX evidence on this individual, there was no need to inquire further. Cardin v. Canada (Minister of Citizenship & Immigration) 57

Conclusion 8 For the reasons mentioned above, the special advocates’ request for a stay of the proceedings based on the Ministers and CSIS’ duty of candour and utmost good faith is dismissed.

[Indexed as: Cardin v. Canada (Minister of Citizenship & Immigration)] Alexander David Cardin, Applicant and Minister of Citizenship and Immigration, Respondent Federal Court Anne Mactavish J. Heard: January 10, 2011 Judgment: January 12, 2011 Docket: T-663-10, 2011 FC 29 Alexander David Cardin, Applicant, for himself Peter Nostbakken, for Respondent Immigration and citizenship –––– Citizenship — Grant of citizenship — Require- ments for grant of citizenship — Residence in Canada — Business or employment outside Canada –––– Applicant came to Canada with his family when he was 14 years old and went to high school in Canada — He spent four years at university in Canada and became permanent resident of Canada in 2005 — In 2006, applicant’s Canadian employer sent him to management training program in United States, which resulted in substantial portion of his absences from Canada — Applicant was away from Canada for 688 days in four-year period immediately prior to filing of his application — Applicant’s application for Canadian citizenship was refused on basis that he did not meet residency requirement — Applicant appealed — Appeal allowed — Three tests exist with respect to how residency requirement is to be applied — It is open to citizenship judges to apply any of three tests — Test used by citizenship judge is usually applied in cases where individual comes to Canada and then immediately absents himself — This was not situation in case at bar; applicant developed deep and long-standing connection to Canada long before commencement of residency period — Applicant had ample opportunity to immerse himself in Canadian society — Facts were not properly applied to principles underlying test used. Cases considered by Anne Mactavish J.: Canada (Minister of Citizenship & Immigration) v. Elzubair (2010), 2010 CarswellNat 3030, 2010 CF 298, 2010 CarswellNat 573, 2010 FC 298, [2010] F.C.J. No. 330 (F.C.) — referred to 58 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d)

Koo, Re (1992), 19 Imm. L.R. (2d) 1, [1993] 1 F.C. 286, 59 F.T.R. 27, 1992 CarswellNat 83, 1992 CarswellNat 621, [1992] F.C.J. No. 1107 (Fed. T.D.) — considered Lam v. Canada (Minister of Citizenship & Immigration) (1999), 1999 CarswellNat 489, 164 F.T.R. 177, [1999] F.C.J. No. 410 (Fed. T.D.) — considered Lin v. Canada (Minister of Citizenship & Immigration) (2002), 2002 CFPI 346, 2002 CarswellNat 2323, 21 Imm. L.R. (3d) 104, 2002 CarswellNat 777, 2002 FCT 346, [2002] F.C.J. No. 492 (Fed. T.D.) — referred to Papadogiorgakis, Re (1978), 1978 CarswellNat 23, [1978] 2 F.C. 208, 88 D.L.R. (3d) 243, 1978 CarswellNat 23F, [1978] F.C.J. No. 31 (Fed. T.D.) — considered Pourghasemi, Re (1993), 1993 CarswellNat 77, 19 Imm. L.R. (2d) 259, 62 F.T.R. 122, [1993] F.C.J. No. 232 (Fed. T.D.) — considered Zhang v. Canada (Minister of Citizenship & Immigration) (2008), 2008 CarswellNat 1052, 2008 FC 483, 2008 CF 483, 2008 CarswellNat 2194, [2008] F.C.J. No. 603 (F.C.) — referred to Statutes considered: Citizenship Act, R.S.C. 1985, c. C-29 Generally — referred to s. 5(1)(c) — considered

APPEAL by applicant from citizenship judge’s decision rejecting his application for Ca- nadian citizenship.

Anne Mactavish J.:

1 Alexander Cardin’s application for Canadian citizenship was refused on the basis that he did not meet the residency requirement of the Citizenship Act, R.S.C. 1985, c. C-29. There is no dispute about the fact that Mr. Cardin was away from Canada for 688 days in the four year period immediately prior to the filing of his application. 2 The Citizenship Judge applied the test articulated in Pourghasemi, Re, [1993] F.C.J. No. 232, 62 F.T.R. 122 (Fed. T.D.), which requires that an applicant be physically present in Canada for 1095 days in the relevant four year period. In so doing, the Citizenship Judge adopted the reasoning of Justice Mul- doon in Pourghasemi, Re, where he stated that the purpose of paragraph 5(1)(c) of the Citizenship Act is to ensure that anyone receiving Canadian citizenship “has become, or at least has been compulsorily presented with the everyday opportunity to become, ‘Canadianized’”. 3 Quoting Justice Muldoon, the Citizenship Judge noted that ‘Canadianiza- tion’ occurs “by ‘rubbing elbows’ with Canadians in shopping malls, corner stores, libraries, concert halls, auto repair shops, pubs, cabarets, elevators, churches, synagogues, mosques and temples - in a word wherever one can meet and converse with Canadians - during the prescribed three years.” This ‘Canadi- Cardin v. Canada (Minister of Citizenship & Immigration) Anne Mactavish J. 59

anization’ can only occur through living in Canada as “Canadian life and society exist only in Canada and nowhere else”. 4 The Citizenship Judge noted Justice Muldoon’s statement that three years “is little enough time in which to become Canadianized”. If an applicant did not have that qualifying experience, it would mean that citizenship could be con- ferred on someone “who is still a foreigner in experience, social adaptation, and often in thought and outlook.”: all quotes from Pourghasemi, Re at para. 3, as cited in the Citizenship Judge’s decision. 5 The Citizenship Judge found that Mr. Cardin had not done this. 6 It is common ground that the standard of review to be applied to the Citizen- ship Judge’s decision is that of reasonableness: Zhang v. Canada (Minister of Citizenship & Immigration), 2008 FC 483 (F.C.) at para. 7-8; Canada (Minister of Citizenship & Immigration) v. Elzubair, 2010 FC 298 (F.C.) at para. 12. 7 Paragraph 5(1)(c) of the Citizenship Act provides that a permanent resident must have “within the four years immediately preceding the date of his or her application, accumulated at least three years of residence in Canada”. 8 There are three different schools of thought as to how the residency requirement of paragraph 5(1)(c) is to be applied. The first is the Pourghasemi, Re test used in this case, which only asks whether the applicant has been physically present in this country for a total of three years out of four, or a minimum of 1095 days. 9 The second test is that articulated in Papadogiorgakis, Re, [1978] 2 F.C. 208, [1978] F.C.J. No. 31 (Fed. T.D.). This is a less stringent test in that it looks at whether an applicant has an established residence and strong attachment to Canada, even if he or she has been temporarily absent away from Canada. 10 The third test is the one most commonly used in citizenship cases. This is the so-called “Koo” test, established in Koo, Re (1992), [1993] 1 F.C. 286, [1992] F.C.J. No. 1107 (Fed. T.D.). The Koo test looks at residence as being the place where one “regularly, normally or customarily lives” or has “centralized his or her mode of existence”. Koo, Re identifies six questions that are to be asked in order to determine whether this test has been met. 11 Because there is no appeal from Federal Court decisions in citizenship matters, there has never been an appellate determination as to which is the appropriate test. 12 In light of the conflicting jurisprudence, this Court has determined that it is open to Citizenship Judges to apply any of the three tests. Moreover, “if the facts of the case were properly applied to the principles of the chosen approach, the decision of the citizenship judge would not be wrong”: see Lam v. Canada (Minister of Citizenship & Immigration), [1999] F.C.J. No. 410 (Fed. T.D.) at para. 14. 60 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d)

13 Mr. Cardin’s application for citizenship was rejected based on the Citizen- ship Judge’s finding that his absences from Canada meant that he had not sufficiently “Canadianized” himself. This finding was unreasonable on the particular facts of this case. 14 Mr. Cardin is 26 years old. He came to Canada with his family in 1999, when he was 14 years old. He went to high school in Canada. He spent four years at university in Canada, ultimately receiving a Bachelor of Arts in Political Science from the University of Western Ontario in 2006. He became a permanent resident of Canada in 2005. He has worked in Canada. His parents and two brothers are Canadian citizens. 15 Mr. Cardin has thus undoubtedly had ample opportunity to immerse himself in Canadian society and to ‘rub elbows’ with Canadians throughout the forma- tive years that he spent in this country. 16 In 2006, Mr. Cardin’s Canadian employer sent him to a management training program in the United States. It was his attendance at this program that resulted in a substantial portion of his absences from Canada. Mr. Cardin has since returned to Canada, and continues to work for his Canadian employer. 17 During the time that Mr. Cardin was in the United States, his possessions remained at his family’s home in Ontario, he maintained bank accounts in Can- ada, and he returned to Canada from time to time to visit family and friends. 18 While it is clearly open to a Citizenship Judge to choose one of the three approved residency tests, whichever test is selected nevertheless had to be applied with common sense. If the underlying rationale for the application of a particular test is not present on the facts of the case, then the application of the test simply does not make sense. That is, it is not reasonable. 19 The Pourghasemi, Re test is usually applied in cases where an individual comes to Canada, and then immediately absents him- or herself from this country on a regular basis, perhaps for business reasons, often without ever really integrating into Canadian society. The principle underlying the day-counting exercise prescribed by Pourghasemi, Re is to ascertain whether such an applicant has had any real exposure to, or involvement with Canadian society. That is, whether they had become “Canadianized”. 20 This is not the situation here. Mr. Cardin developed a deep and long-standing connection to Canada long before the commencement of the residency period specified in paragraph 5(1)(c) of the Citizenship Act. He had already had ample opportunity to become “Canadianized”. 21 I am thus satisfied that the facts of this case were not properly applied to the principles underlying the Pourghasemi, Re test. Consequently, the appeal will be allowed. Mr. Cardin’s citizenship application is remitted to a different Citizen- ship Judge for re-determination in accordance with these reasons. Cardin v. Canada (Minister of Citizenship & Immigration) Anne Mactavish J. 61

22 I would leave this matter by simply echoing the observations that have repeatedly been made by judges of this Court. The law in this area is in a very unsatisfactory state. As Justice Dawson observed, it is fundamentally unfair that two persons may apply for citizenship on identical facts and yet obtain opposite results, depending on which test is applied: see Lin v. Canada (Minister of Citizenship & Immigration), [2002] F.C.J. No. 492, 2002 FCT 346 (Fed. T.D.). It is an area that cries out for legislative reform.

Judgment THIS COURT ORDERS AND ADJUDGES that this appeal is allowed, and the matter is remitted to a different Citizenship Judge for re-determination in accordance with these reasons. Appeal allowed. 62 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d)

[Indexed as: Josile v. Canada (Minister of Citizenship & Immigration)] Duleine Josile, Applicant and Minister of Citizenship and Immigration, Respondent Federal Court Luc Martineau J. Heard: December 8, 2010 Judgment: January 17, 2011 Docket: IMM-3623-10, 2011 FC 39 Russell L. Kaplan, for Applicant Helene Robertson, for Respondent Immigration and citizenship –––– Refugee protection — Elements of protected refugee status — Grounds — Membership in particular social group –––– Gender — Claimant was female Haitian who alleged that her father, minor government official, was beaten by gang members and threatened by armed men as result of his providing information to police — Claimant also feared to go back to Haiti because she claimed there was sexual abuse and violence against women and state was not protecting them — Claimant made refugee claim in Canada based on political opinion and membership in particular social group (Haitian women) — Her claim was rejected — Immigration and Refugee Board determined that she was not credible regarding her description of alleged gang attacks on her father — Board found that gang was organized criminal entity and that they no longer had political affiliations — Board also held that while Haitian women faced violence and rapes, these dangers were generally faced by population, men and women alike — Claimant brought application for judicial review — Application granted — Board’s conclusions of fact as to apolitical nature of organized criminal groups was reasonable — Evidence before Board was highly speculative and virtually untied to political involvement — However, Board’s conclusion that women in Haiti were “not targeted qua women” was untenable — Documentary evidence clearly demonstrated that women in Haiti faced elevated risk of violence and rape, risk that was not similarly experienced by men — Board acted unreasonably in finding that rape was not gender-related risk. Cases considered by Luc Martineau J.: Dezameau v. Canada (Minister of Citizenship & Immigration) (2010), 89 Imm. L.R. (3d) 169, 2010 CarswellNat 1459, 2010 FC 559, 369 F.T.R. 151 (Eng.), 2010 CarswellNat 2461, 2010 CF 559, [2010] A.C.F. No. 710, [2010] F.C.J. No. 710 (F.C.) — considered E.U.C., Re (March 13, 2001), Doc. T99-09129, [2001] C.R.D.D. No. 253 (Imm. & Ref. Bd. (Ref. Div.)) — referred to Frederic v. Canada (Minister of Citizenship & Immigration) (2010), 2010 CarswellNat 5112, 2010 CF 1100, 2010 CarswellNat 4213, 2010 FC 1100 (F.C.) — considered Josile v. Canada (Minister of Citizenship & Immigration) Luc Martineau J. 63

Frejuste v. Canada (Minister of Citizenship & Immigration) (2009), 2009 FC 586, 2009 CarswellNat 1913, 2009 CarswellNat 3960, 2009 CF 586, 81 Imm. L.R. (3d) 125, 346 F.T.R. 177 (Eng.), [2009] F.C.J. No. 831, [2009] A.C.F. No. 831 (F.C.) — considered G.L.U., Re (April 3, 2000), Doc. A99-01341, [2000] C.R.D.D. No. 69 (Imm. & Ref. Bd. (Ref. Div.)) — referred to New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Bruns- wick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — referred to R. v. Osolin (1993), 109 D.L.R. (4th) 478, 19 C.R.R. (2d) 93, 26 C.R. (4th) 1, 38 B.C.A.C. 81, 62 W.A.C. 81, 86 C.C.C. (3d) 481, [1993] 4 S.C.R. 595, 162 N.R. 1, 1993 CarswellBC 512, 1993 CarswellBC 1274, [1993] S.C.J. No. 135, EYB 1993- 67115 (S.C.C.) — considered Salibian v. Canada (Minister of Employment & Immigration) (1990), 1990 CarswellNat 50, 1990 CarswellNat 650F, 11 Imm. L.R. (2d) 165, [1990] 3 F.C. 250, (sub nom. Salibian v. Canada (Ministre de l’Emploi & de l’Immigration)) 113 N.R. 123, 73 D.L.R. (4th) 551, [1990] F.C.J. No. 454 (Fed. C.A.) — referred to Soimin c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2009), 2009 Car- swellNat 533, 2009 CF 218, 2009 CarswellNat 1541, 2009 FC 218, [2009] F.C.J. No. 246 (F.C.) — considered Ward v. Canada (Minister of Employment & Immigration) (1993), (sub nom. Canada (Attorney General) v. Ward) 103 D.L.R. (4th) 1, (sub nom. Canada (Attorney General) v. Ward) 153 N.R. 321, 20 Imm. L.R. (2d) 85, 1993 CarswellNat 90, 1993 CarswellNat 1382, [1997] I.N.L.R. 42, (sub nom. Canada (Attorney General) v. Ward) [1993] 2 S.C.R. 689, [1993] S.C.J. No. 74, EYB 1993-67292 (S.C.C.) — considered Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 96 — considered s. 97 — considered

APPLICATION for judicial review of refusal of Convention refugee status.

Luc Martineau J.:

1 This is a judicial review of a decision made by the Immigration and Refugee Board, Refugee Protection Division (the Board), dated May 25, 2010, wherein the applicant was determined to be neither a Convention refugee nor a person in need of protection within the meaning of sections 96 and 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act). 64 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d)

2 The factual background leading to the impugned decision is not challenged. 3 The applicant is a female Haitian national born in 1980. She left Haiti in 2005 and had her refugee claim rejected by the United States the same year. In 2007, she made her Canadian refugee claim based on political opinion and membership in a particular social group (Haitian women) or other social group (family). 4 The applicant alleged that her father, a minor government official in a small village in Haiti, was beaten by gang members in 2004 and threatened again by armed men in 2005 as a result of his providing information to the police about the identities of the murderers of a local pastor in 2003. She also feared to go back because there is sexual abuse and violence against women in Haiti and the state is not protecting them. 5 The Board determined that the applicant was not credible regarding her description of the alleged gang attacks on her father in 2004 and 2005. The applicant’s argument based on membership in a social group (family) was rejected. 6 The Board found that the gang which the applicant claimed to fear was an organized criminal entity. Although the evidence showed that in Haiti organized criminal entities were, at one point in history, very closed affiliated with political parties or the military, they no longer have political affiliations. The applicant’s claim based on political opinion was thus rejected. 7 Finally, the Board accepted that Haitian women do constitute a particular social group, but they do not face persecution because of their membership therein. While Haitian women face violence and rape, these dangers are generally faced by the population, men and women alike. Moreover, the Board noted that perpetrators of rape in Haiti are mostly poor, young, uneducated males who are not pursuing a political agenda. 8 The applicant does not contest the Board’s credibility findings. However, she strongly contests the correctness of the Board’s legal approach and reasonableness of its analysis of the evidence regarding the political nature of gang violence in Haiti and the gender-targeted nature of rape in Haiti. The standard of review for questions of fact and questions of mixed fact and law is reasonableness (New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9 (S.C.C.), at paragraph 51). However, the Board’s legal interpretation of sections 96 and 97 of the Act, including key elements inherent in the Refugee definition (i.e. persecution and nexus), is reviewable under a correctness standard. 9 First, the Court finds that the Board’s conclusions of fact as to the apolitical nature of organized criminal groups are reasonable. Even if one accepts that political motive can coexist with non-Convention grounds, the evidence before the Board was highly speculative and virtually untied to political involvement (or leading to an inference that political motive could constitute a secondary Josile v. Canada (Minister of Citizenship & Immigration) Luc Martineau J. 65

ground). This part of the Board’s decision is entirely supported by the evidence and thus the Court has no grounds to interfere. 10 This brings us to the applicant’s claim for protection because of her membership in a particular social group, here Haitian women. 11 The situation of sexual abuse and violence against women in Haiti has recently come to the attention of the Federal Court: Soimin c. Canada (Ministre de la Citoyennet´e & de l’Immigration), 2009 FC 218 (F.C.) (Soimin); Frejuste v. Canada (Minister of Citizenship & Immigration), 2009 FC 586 (F.C.) (.Frejuste); and Dezameau v. Canada (Minister of Citizenship & Immigration), 2010 FC 559 (F.C.) (Dezameau). In this regard, the Court has cautioned the Board not to import into the definition of a Convention refugee, legal requirements which are specific to section 97 when the Board is assessing whether the fear of persecution is based on a Convention ground in light of section 96 of the Act. 12 The claimant in Soimin, above, feared that she would be kidnapped, raped and tortured should she return to Haiti because of the general crime and violence in her country of origin, since she had travelled abroad and would therefore be perceived as being wealthy. The finding that “[t]he violence feared by the applicant arises from general criminal activity in Haiti, and not the discriminatory targeting of women in particular” (Soimin, above, at paragraph 14) was not seri- ously challenged by the claimant. 13 In dismissing the judicial review application, the Court in Soimin, above, simply accepted that in light of section 97 of the Act, the claimant was not a “person in need of protection”. Apparently, her risk of being kidnapped and raped was no different from that faced by other individuals from her country, but in the Court’s decision, there was no specific mention or analysis of the documentary evidence. Moreover, there was no analysis by the Court of relevant legal principles or case law with respect to gender-related claims under section 96 of the Act. 14 In contrast, the Court stated in Frejuste, above, that “as the documentary evidence reveals, the risk of sexual violence is one widely faced by women in Haiti, irrespective of whether or not they are returnees” (Frejuste, above, at paragraph 34). The Court further noted that there were two separate categories of risk underlying the claimant’s section 97 claim: the risk associated with being a returnee who has spent time in North America and is therefore perceived as a person of wealth, and the risk of being a single woman in Haiti. 15 In allowing the judicial review application, the Court noted in Frejuste, above, that the Board had addressed the gender issue and the returnee issue si- multaneously and that “this case may have been obscured by the applicant’s emphasis on a risk as a returnee who might be targeted because of her perceived 66 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d)

wealth”. That being said, there was no discussion regarding the application of section 96 of the Act in the context of a gender-related claim. 16 In Frederic v. Canada (Minister of Citizenship & Immigration), 2010 FC 1100 (F.C.), the Court was tasked with evaluating whether the Board’s conclusion that fear of sexual assault cannot give rise to refugee protection because it amounts to a general fear of crime which affects the entire population of Haiti, and not a particular social group, was reasonable. Justice O’Reilly of this Court dismissed the application, but explicitly stated at paragraph 11 that: ... while the issues raised in this case are difficult and merit, in appropriate circumstances, serious scrutiny both by the Board and this Court, this is not an apt case to analyze them thoroughly. As mentioned, the proposition that a woman’s fear of sexual violence could form the basis of a refugee claim was not the main thrust of Ms. Frederic’s application. Accordingly, the evidence before the Board was not as extensive as one might otherwise have expected, and the submissions on the point were not as detailed as they might have been in a case in which the issue was central to the claim. 17 The same cannot be said for the present case, in which the claim based on gender was expressly made and is well-supported by the evidence. 18 Even more telling is Dezameau, above, a case very similar to the present one. There, the claimant was a Haitian woman fearing persecution on the basis of her political opinion, as well as her membership in a social group, Haitian women. With regard to the second ground, the Court acknowledged that the Board’s failure to include a gender-based analysis in its assessment of the evidence of violence directed at women in Haiti constitutes a reviewable error. 19 That being said, in Dezameau, above, it appears that the Board had dismissed the claim on the basis that the Prime Minister of Haiti was a woman and half of Haiti’s population were women. The Board’s conclusion was that the risk of rape is not due to gender but, rather, a risk that all Haitians face as a result of generalized crime and as such, it cannot support a refugee claim. 20 Disagreeing with the respondent’s assertion that the judgment in Soimin, above, was determinative, the Court stated in Dezameau, above, at paragraph 22, that the question “is whether the Board’s finding that the applicant faced a risk of general criminality such that there is no nexus between her risk and her social group is defensible in law or in fact”. In allowing the judicial review application, the Court concluded that “the error of the Board was to use its finding of wide- spread risk of violence to rebut the assertion that there is a nexus between the applicant’s social group and the risk of rape” (Dezameau, above, at paragraph 23). Josile v. Canada (Minister of Citizenship & Immigration) Luc Martineau J. 67

21 The Court in Dezameau, above, at paragraph 24, referred expressly to the Chairperson’s Guideline 4, Women Refugee Claimants Fearing Gender-Related Persecution, Immigration and Refugee Board of Canada (Guideline 4): The fact that violence, including sexual violence and domestic violence, against women is universal is irrelevant when determining whether rape, and other gender-specific crimes constitute forms of persecution. The real issues are whether the violence — experienced or feared — is a serious violation of a fundamental human right for a Convention ground and in what circumstances can the risk of that violence be said to result from a failure of state protection. (Emphasis in original.) 22 Indeed, a gender-specific claim cannot be rejected simply because the group in question or its members face general oppression and the claimant’s fear of persecution is not supported by an individualized set of facts. Where the claimant has not, himself or herself, experienced the type of persecution, he or she fears, the claimant can use evidence of similarly-situated persons to demonstrate the risk and the unwillingness or inability of the state to protect (Dezameau, above, at paragraph 26; Salibian v. Canada (Minister of Employment & Immi- gration), [1990] 3 F.C. 250 (Fed. C.A.) at pages 258 and 259). 23 My colleague Justice Pinard, who rendered the judgment of the Court in Dezameau, above, also noted at paragraphs 29 and 31: This is not to say that membership in a particular social group is sufficient to result in a finding of persecution. The evidence provided by the applicant must still satisfy the Board that there is a risk of harm that is sufficiently serious and whose occurrence is “more than a mere possibility”. ... As mentioned before, a general risk faced by a particular social group does not preclude a finding of persecution. In other words, a finding that a risk is universally experienced by a social group does not foreclose the inquiry under section 96. The Board foreclosed a proper inquiry into this claim by making an erroneous finding that the risk of violence, specifically rape, is a risk of generalized criminality that all Haitians face. 24 With respect to the establishment of nexus, the Court in Dezameau, above, at paragraphs 34 and 35, notes that “it is well established in Canadian law that rape, and other forms of sexual assaults, are grounded in the status of women in society”, and adds to this effect that “[t]he notion that rape can be merely moti- vated by common criminal intent or desire, without regard to gender or the status of females in a society is wrong according to Canadian law”. 25 Canadian jurisprudence is also emphatic on the point. For example, in R. v. Osolin, [1993] 4 S.C.R. 595 (S.C.C.), Justice Cory for the majority of the Su- preme Court of Canada stated that “it cannot be forgotten that a sexual assault is very different from other assaults. It is true that it, like all the other forms of 68 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d)

assault, is an act of violence. Yet it is something more than a simple act of violence. Sexual assault is in the vast majority of cases gender based. It is an assault upon human dignity and constitutes a denial of any concept of equality for women” (Osolin, above, at paragraph 165). 26 Indeed, rape is referred to as a “gender-specific” crime in Guideline 4. The latter specifically categorizes rape as a gender-specific crime: The fact that violence, including sexual and domestic violence, against women is universal is irrelevant when determining whether rape, and other gender-specific crimes constitute forms of persecution. (My emphasis.) 27 Consequently, I entirely agree with the approach taken by the Court in Dezameau, above. 28 The Board, as well as the parties before the Court, accept that Haitian women can constitute a particular social group for the purpose of applying section 96 of the Act. Indeed, the Supreme Court of Canada has already recognized that the definition of a Convention refugee embraces “individuals fearing persecution on such bases as gender ...” (Ward v. Canada (Minister of Employment & Immigration), [1993] 2 S.C.R. 689 (S.C.C.), at page 739 (Ward)). 29 Indeed, Canadian scholar and practitioner, Lorne Waldman holds that women, at large, should be recognized as a particular social group, provided that the evidence proves that they are subject to severe violations of their fundamental human rights because of their gender (Lorne Waldman, The Definition of Convention Refugee (Buttersworth: Markham, Ontario, 2001) at §8.288). In my opinion, such an approach is the correct one and flows from Ward, above. 30 This conclusion is also in accordance with the human rights purpose of the Convention and is in line with other decisions of the Board, where women without male protection and adequate state protection who are persecuted in certain countries (e.g. Pakistan and Somalia) were found to be Convention refugees by reason of their membership in that group (G.L.U., Re, [2000] C.R.D.D. No. 69 (Imm. & Ref. Bd. (Ref. Div.))); E.U.C., Re, [2001] C.R.D.D. No. 253 (Imm. & Ref. Bd. (Ref. Div.))). 31 Thus, the real test is whether the claimant is subject to persecution by reason of his or her membership in that particular social group. In the case at hand, the Board has generally found that Haitian women do not face persecution in the form of violence and sexual abuse because of their membership in that group: “Women in Haiti are not targeted qua women. They, like all others in Haiti, including men and boys are subject to endemic violence and as a result all kinds including rape. They are victims, as is everyone else, of chronic state breakdown and ubiquitous crime and violence”. This conclusion is untenable in this case. 32 The applicant cited Professor Lise Gotell, a professor in the Women’s Stud- ies Programme at the University of Alberta as stating that rape is never a Josile v. Canada (Minister of Citizenship & Immigration) Luc Martineau J. 69

genderless crime. This assertion was discarded by the Board, but it is amply supported by Guideline 4. In addition, the documentary evidence before the Board clearly demonstrates that women and girls in Haiti face an elevated risk of violence and rape, a risk that is not similarly experienced by men and boys, even though men and boys can also be victims of rape. Moreover, the number of women raped in Haiti has constantly been increasing over the past months. Many of the victims are single women. Most sexual attacks are committed by men. Moreover, almost half of the women kidnapped are raped. While nearly 50 percent of cases involve minors less than 18 years of age, the Doctors Without Borders Clinic in Port-au-Prince reported that of their 500 rape victims, over half were between 19 and 45 years old. 33 Thus, the Board’s findings and general conclusion that nexus has not been established is unreasonable, as it goes directly against the legal principles already discussed above and is not based on the documentary evidence. More particularly, the Board erred or otherwise acted unreasonably in finding that rape is not a gender-related risk in Haiti or that only “some female Haitians under the age of 18 may be at risk of gender-related persecution”. The fact that much of the sexual violence against girls, and women in general, in Haiti occurs in a domestic or family context does not excuse or lift the persecutory nature of gender-related abuses against women in Haiti who are kidnapped by gangs or raped in camps since the earthquake of January 12, 2010. 34 Therefore, the suggestion made by the Board that women are randomly raped in Haiti by criminals is not supported by the evidence; while women are targeted for kidnapping just like men, they are raped because they are women. Likewise, young boys may be abused because they are part of a vulnerable social group. The fact that there has been “horrific sexual abuse of young boys by UN peace keeping forces from Sri Lanka” does not help to sustain the reasonableness of the Board’s general conclusion. Again, the real issue is whether such violence is a serious violation of a fundamental human right for a Convention ground and the Board’s analysis in this regard is perfunctory and biased. 35 The fact that the applicant “is a married 30 year old not an under 18 year old, single female” has strongly influenced the dismissal of this claim. The Court is also appalled by certain gratuitous statements of the Board, such as “rape is not the motive for criminal violence against women”, “[g]ender is not a variable in such a calculation” (in the case of kidnapped women who are raped), ““genderless” is a rather meaningless word”, and “the perpetrators of rape in Haiti...[are] mostly poor, young, uneducated, males”. Such a stereotypical view further confirms that the Board member did not have an open mind or otherwise suggests a pernicious form of bias which severely taints the reasonableness of the result. 36 In light of Canadian law and the evidence before the Board, the conclusion that as a Haitian woman, the applicant does not have reasonable fear of persecu- 70 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d)

tion because of her membership in that group is unreasonable. Had the Board accepted that a risk of rape is grounded in the applicant’s membership in a particular social group, then the inquiry should have resulted in a determination of whether there is “more than a mere possibility” that the applicant risks suffering this harm in Haiti. The particular circumstances and situation of the applicant in the case of return to Haiti have not been thoroughly considered and analyzed. The next step of the failed analysis would have been to determine whether in the alleged absence of male protection in her particular case, adequate state protection is available to the applicant. 37 The application is allowed and the impugned decision is set aside. There should be a new hearing and redetermination by a different panel of the Board in accordance with the guidance given by the Court and the following directions. 38 The impugned decision was made on May 25, 2010, that is only four months after the earthquake of January 12, 2010 in Haiti. Before this Court, the applicant alleges that “[t]here is a rape epidemic in Haiti, exacerbated by the earthquake”. It would appear that since the earthquake, some 1.5 million persons have been displaced and are living in close proximity in camps or elsewhere in extreme conditions and without adequate protection, as the case may be. Consid- ering that fear of persecution is forward-looking, the Court expects that there will be a complete and objective evaluation of the most up-to-date documentation with respect to rape and sexual abuse committed against women and children in Haiti in light of the particular situation of the applicant and increasingly worsening country conditions. 39 In particular, the Board should notably examine whether there is a rape epidemic in Haiti and whether there are serious violations of fundamental human rights against women for a Convention ground, taking into account these present reasons for judgment, the present political turmoil in Haiti and the climate of ongoing violence by different groups following the legislative elections and the first round of the presidential election of November 28, 2010. The issue of adequate state protection in the absence of male protection, as the case may be, should be fully considered and analyzed by the Board. Naturally, the geographi- cal location (whether outside of Port-au-Prince or areas not affected by the earthquake) and the applicant’s personal situation (whether she will be accompanied by a spouse or living with family) if returned to Haiti are relevant factors to consider. 40 The respondent has not proposed any general question of importance for certification. 41 In the present instance, there has been no serious attack made by the respondent against the legal reasoning of my colleague Justice Pinard in Dezameau, Josile v. Canada (Minister of Citizenship & Immigration) Luc Martineau J. 71

above, and which I have fully endorsed. Incidentally, the following question was certified in Dezameau, above: Can an assumption that rape is not a crime predicated on gender and reflecting gender imbalances be applied in an evidentiary vacuum, without regard to evidence demonstrating the contrary with respect to conditions in a refugee claimant’s country of nationality? 42 In this respect, I note that no appeal was made by the respondent against the former judgment. 43 Accordingly, no question is certified by this Court.

Judgment THE COURT ADJUGES AND ORDERS: 1. The application for judicial review is granted. 2. The decision made on May 25, 2010 by the Board is set aside and the applicant’s claim is referred back for a new hearing and redetermination by a different panel of the Board, in accordance with the reasons for judgment and the directions issued by the Court in same. 3. No question is certified. Application granted. 72 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d)

[Indexed as: Melo Sanchez v. Canada (Minister of Citizenship & Immigration)] Francisco Javier (Javie) Melo Sanchez, Guadalupe Maritza Altamirano Canchola (a.k.a. Guadalupe Marit Altamirano Canchola), Erick Melo Altamirano, Ivan Melo Altamirano, Applicants and Minister of Citizenship and Immigration, Respondent Federal Court Richard G. Mosley J. Heard: January 19, 2011 Judgment: January 20, 2011 Docket: IMM-3422-10, 2011 FC 68 Howard P. Eisenberg, for Applicants Nicole Paduraru, for Respondent Immigration and citizenship –––– Refugee protection — Practice and procedure in refugee claims — Judicial review — Natural justice — Bias –––– Applicants, citizens of Mexico, claimed refugee protection in Canada after allegedly being threatened, harassed, assaulted, kidnapped and extorted by federal police in Mexico — Member of Refugee Protection Division dismissed applicants’ claim after hearing — Applicant applied for judicial review — Application granted on other grounds — There were insufficient grounds to find reasonable apprehension of bias arising from Member’s conduct of hearing — It was clear that Member was frustrated by delay in start of proceedings, which he attributed to interpreter — This was compounded by interpreter’s requests for breaks and by lack of any provision for water in hearing room — Any frustration Mem- ber experienced was not directed at applicants — Member was somewhat abrupt in instructing applicant to give verbal answer to questions, but it appeared to have been necessary to clarify his testimony — Members must be allowed reasonable latitude in questioning claimant — Extensive and energetic questioning alone will not give rise to reasonable apprehension of bias — Objective observer would not have concluded that Member would be unlikely to decide matter fairly. Immigration and citizenship –––– Refugee protection — Credibility –––– Applicants, citizens of Mexico, claimed refugee protection in Canada after allegedly being threatened, harassed, assaulted, kidnapped and extorted by federal police in Mexico — Member of Refugee Protection Division dismissed applicants’ claim, finding that there was no credible or trustworthy evidence on which favourable decision could be made — Applicant applied for judicial review — Application granted — Member’s credibility findings were solely based on Member’s assessment of plausibility of applicants’ accounts — Member failed to justify implausibility findings in his reasons and drew conclusions that were not defensible based on oral and documentary evidence — Member’s finding that there was no credible or trustworthy evidence on which favourable decision could be made, and that there was therefore no credible basis for claim, failed to take into account documentary evidence before Member with respect to police corruption, crimi- Melo Sanchez v. Canada 73 nality and impunity in Mexico — Even if it had been open to Member to find applicants were not credible on sound plausibility reasoning, it was not reasonable to conclude that there was no credible or trustworthy evidence in support of claim — Member’s findings did not fall within range of possible, acceptable outcomes that were defensible on facts and law. Cases considered by Richard G. Mosley J.: Aguebor v. Canada (Minister of Employment & Immigration) (1993), 1993 CarswellNat 303, (sub nom. Aguebor v. Ministre de l’Emploi & de l’Immigration) 160 N.R. 315, [1993] F.C.J. No. 732 (Fed. C.A.) — referred to Aguirre v. Canada (Minister of Citizenship & Immigration) (2008), 2008 CarswellNat 1367, 2008 FC 571, [2008] F.C.J. No. 732 (F.C.) — referred to Bankole v. Canada (Minister of Citizenship & Immigration) (2005), 2005 FC 1581, 2005 CarswellNat 3875, [2005] F.C.J. No. 1942 (F.C.) — referred to C.U.P.E. v. Ontario (Minister of Labour) (2003), 2003 CarswellOnt 1803, 2003 SCC 29, 2003 CarswellOnt 1770, 2003 C.L.L.C. 220-040, [2003] 1 S.C.R. 539, (sub nom. Canadian Union of Public Employees v. Ontario (Minister of Labour)) 173 O.A.C. 38, (sub nom. Canadian Union of Public Employees v. Ontario (Minister of Labour)) 66 O.R. (3d) 735 (note), 226 D.L.R. (4th) 193, (sub nom. Canadian Union of Public Employees v. Ontario (Minister of Labour)) 304 N.R. 76, 50 Admin. L.R. (3d) 1, REJB 2003-41592, [2003] S.C.J. No. 28 (S.C.C.) — referred to Cardinal v. Kent Institution (1985), [1985] 2 S.C.R. 643, [1986] 1 W.W.R. 577, 24 D.L.R. (4th) 44, 63 N.R. 353, 69 B.C.L.R. 255, 16 Admin. L.R. 233, 23 C.C.C. (3d) 118, 49 C.R. (3d) 35, 1985 CarswellBC 402, 1985 CarswellBC 817, [1985] S.C.J. No. 78 (S.C.C.) — referred to Committee for Justice & Liberty v. Canada (National Energy Board) (1976), [1978] 1 S.C.R. 369, 68 D.L.R. (3d) 716, 9 N.R. 115, 1976 CarswellNat 434, 1976 Car- swellNat 434F, [1976] S.C.J. No. 118, [1976] A.C.S. No. 118 (S.C.C.) — referred to New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Bruns- wick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — followed R. v. S. (R.D.) (1997), 161 N.S.R. (2d) 241, 477 A.P.R. 241, 151 D.L.R. (4th) 193, 118 C.C.C. (3d) 353, 1997 CarswellNS 301, 1997 CarswellNS 302, 10 C.R. (5th) 1, 218 N.R. 1, 1 Admin. L.R. (3d) 74, [1997] 3 S.C.R. 484, [1997] S.C.J. No. 84 (S.C.C.) — referred to Upul v. Canada (Minister of Citizenship & Immigration) (2004), 2004 FC 1451, 2004 CarswellNat 3741, 2004 CF 1451, 2004 CarswellNat 4747, 41 Imm. L.R. (3d) 284, (sub nom. Kankanagme v. Canada (Minister of Citizenship & Immigration)) 259 F.T.R. 268 (Eng.), [2004] F.C.J. No. 1757 (F.C.) — referred to Valtchev v. Canada (Minister of Citizenship & Immigration) (2001), 2001 CarswellNat 1534, 2001 FCT 776, 208 F.T.R. 267, 2001 CFPI 776, [2001] F.C.J. No. 1131 (Fed. T.D.) — referred to 74 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d)

Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 72 — pursuant to s. 96 — referred to s. 97 — referred to s. 107(2) — referred to

APPLICATION for judicial review of decision of Refugee Protection Division finding applicants not to be refugees or persons in need of protection.

Richard G. Mosley J.:

1 This is an application for judicial review pursuant to section 72 of the Immi- gration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”) of the decision of the Refugee Protection Division of the Immigration and Refugee Board (“Board”), dated May 19, 2010, wherein the Board Member determined that there was no credible basis to the claim and that the applicants were not Conven- tion refugees or persons in need of protection. For the reasons that follow, the application is granted and the matter will be remitted to the Board for a fresh hearing and determination by a different panel.

I. Background 2 The applicants are citizens of Mexico. They claim a fear of harm if returned to Mexico due to the actions of members of the federal police who allegedly harassed, kidnapped, assaulted, extorted and threatened them. A first occurrence in August 2007 involving the principal male applicant, Mr. Sanchez, and his father was not reported to the local authorities, they say, due to concerns about repercussions. A further incident on June 26, 2008 involving Mr. Sanchez and his wife, Mrs. Canchola, was reported to the municipal police because threats of violence were extended to the minor children of the family and Mrs. Canchola insisted upon a report being made. The municipal police allegedly refused to include in the report that the applicants’ assailants were federal police officers. 3 The day following the June 26, 2008 incident, additional threats were made because of the filing of the police report and Mr. Sanchez was abducted. Mrs. Canchola paid a ransom for his release. Shortly thereafter, their home was broken into, valuables stolen and a threatening message was left behind. The family, which had first visited Canada in December 2006, chose at that point to return to this country and filed a claim for protection following their arrival.

II. Decision Under Review 4 The hearing of the claim took place on April 19, 2010 and April 23rd, 2010 with Mr. Sanchez and Mrs. Canchola testifying through interpreters. The Mem- ber’s decision was issued on May 19, 2010. He did not believe the applicants. Melo Sanchez v. Canada Richard G. Mosley J. 75

Rather, he found them to have “embarked on an elaborate scheme to fabricate a story around police corruption”. He thus rejected the applicants’ s. 96 claim and found there to be no other persuasive evidence that would indicate that the applicants are, on a balance of probabilities, subject to the risks enumerated under s. 97 of the IRPA. The Member found that there was no credible or trustworthy evidence on which a favourable decision could be made and, pursuant to subsection 107(2) of the IRPA, stated that there was no credible basis for the claim. As set out in his reasons, the Member’s conclusions were based on a series of plausibility findings arising from the applicants’ testimony.

III. Issues 5 The issues on this application are: 1. Did the Member’s conduct of the hearing give rise to a reasonable apprehension of bias? 2. Were the Member’s negative credibility findings reasonable?

IV. Analysis Reasonable Apprehension of Bias 6 In reviewing an administrative decision by a board or tribunal, the Court must begin with the presumption that the decision-maker is impartial. An allegation of bias or of a reasonable apprehension of bias questions the fairness of the proceeding. If the applicants were denied fairness, no deference is due and the decision is invalid: Cardinal v. Kent Institution, [1985] 2 S.C.R. 643 (S.C.C.); C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539 (S.C.C.). 7 There is no direct allegation of bias in this case. The applicants contend that the Member’s demeanour was less than appropriate during the hearing. They say certain comments displayed skepticism about their claim and belittled their evidence. Because of this, the applicants submit that they did not have a fair opportunity at the hearing. 8 A reasonable apprehension of bias may be raised where an informed person, viewing the matter realistically and practically and having thought the matter through, would think it more likely than not that the decision maker would un- consciously or consciously decide the issue unfairly. The grounds must be substantial. A real likelihood or probability of bias must be demonstrated: Committee for Justice & Liberty v. Canada (National Energy Board) (1976), [1978] 1 S.C.R. 369 (S.C.C.), R. v. S. (R.D.), [1997] 3 S.C.R. 484, 118 C.C.C. (3d) 353 (S.C.C.). 9 Having read the transcript of the two days of the hearing and having considered the applicants’ written representations and oral submissions, I am satisfied that there are insufficient grounds on which this Court could find that there is a 76 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d)

reasonable apprehension of bias arising from the Member’s conduct of the hearing. 10 There were some sharp exchanges between the Member and the interpreter on the first day of the hearing over a delay in starting the proceedings, the timing of breaks and the unavailability of water in the hearing room. The Member expressed his frustration at these matters and stated, “I must confess I don’t think that today’s my best day, but I’m going to give it my best shot.” The Member also closely examined Mr. Sanchez over the details of the claim and indicated some impatience with the applicant’s failure to articulate responses to questions. This prompted an intervention by counsel. Nothing of a similar nature occurred during the examination of Mrs. Canchola on the second day of the hearing. 11 I agree with the applicants that a member “having a bad day” should not take it out on claimants. It is clear that the Member was frustrated on the first hearing day by a delay in the start of the proceedings which he seems to have attributed to the interpreter. This was compounded by the interpreter’s requests for breaks and by the lack of any provision for water in the hearing room. From my reading of the transcript, I am satisfied that any frustration the Member experienced was not directed at the applicants. I note that the hearing proceeded more smoothly on the second day when Mrs. Canchola testified and the applicants’ submissions were presented by counsel. 12 The Member was somewhat abrupt in instructing Mr. Sanchez to give a verbal answer to questions but it appears to have been necessary to clarify his testimony. Mr. Sanchez responded to some questions with non-verbal utterances which the interpreter could not translate. I agree with the respondent that members must be allowed reasonable latitude in questioning a claimant. Extensive and energetic questioning alone will not give rise to a reasonable apprehension of bias: Bankole v. Canada (Minister of Citizenship & Immigration), 2005 FC 1581 (F.C.) at para 23; Upul v. Canada (Minister of Citizenship & Immigration), 2004 FC 1451, 259 F.T.R. 268 (Eng.) (F.C.) at para 19. 13 Looking at the hearing as a whole, I am satisfied that an objective observer would not have concluded that the Member would be unlikely to decide the matter fairly.

The reasonableness of the Member’s negative credibility findings 14 Much deference is owed to the triers of fact in judicial reviews of refugee protection claims. Their decisions are subject to the reasonableness standard of review. It is trite law that Board Members are in the best position to gauge the plausibility and credibility of a claimant’s account: Aguebor v. Canada (Minister of Employment & Immigration) (1993), 160 N.R. 315, 42 A.C.W.S. (3d) 886 (Fed. C.A.) at para 4; Aguirre v. Canada (Minister of Citizenship & Immigration), 2008 FC 571 (F.C.) at para 14. Melo Sanchez v. Canada Richard G. Mosley J. 77

15 Members are entitled, as was recognized by the Supreme Court of Canada’s decision in New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9 (S.C.C.) at para 47, to make findings that fall within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. However, the Court has a duty to interfere when findings of credibility are based on erroneous findings of fact made in a perverse or capricious manner without regard for the material before it: Valtchev v. Canada (Minister of Citizenship & Immigration) (2001), 208 F.T.R. 267 (Fed. T.D.) at para 5. 16 This is not a case in which the Member’s credibility findings are based on inconsistencies between the evidence of the claimants and their prior statements or the documentary record. They are solely based on the Member’s assessment of the plausibility of the applicants’ accounts. Unfortunately, the Member failed to justify these implausibility findings in his reasons and drew conclusions that are not defensible based on the oral and documentary evidence. 17 In one instance, the Member found an inconsistency in the fact that Mr. Sanchez did not report the first incident to the police but did report the second incident. The explanation given by the applicants was that the reason they went to the police the second time was because their children had been threatened. This explanation was found to be “vague, confusing and inconsistent with common sense and rationality”. In view of the documented evidence of corruption within Mexican police agencies that was before the Member, including evidence of cases in which other victims had not reported such incidents, and the applicants’ explanation as to why they viewed the second incident differently it is difficult to see how this could be said to be inconsistent with a rational response to such events. 18 The Member made implausibility findings with respect to the fact that the applicants filed a police report with the municipal police concerning an incident that allegedly took place involving members of the federal police. This in itself should not have been considered implausible as the municipal police are the police with jurisdiction in Mexico to investigate offences such as assault and rob- bery. It is also understandable that the applicants may not have wished to file their complaint with the agency to which the perpetrators allegedly belonged. 19 The Member characterized Mr. Sanchez’ testimony that the police said that they would inform him if they found something as a result of their inquiries as “confusing and inconsistent with common sense and rationality”. He questioned why the municipal police would bother to offer to inform the applicants of anything they might find if they refused to include a reference to the federal police in their report. Again, it is not clear from the Member’s reasons why this is implausible. The municipal police response as described by the applicants is not outside the realm of possible responses one would expect to hear from a police officer to someone who has just made a police report, even where the police may have been reluctant to include a reference to their federal counterparts. 78 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d)

20 The Member found it “odd” that Mr. Sanchez was kidnapped instead of his wife as he was the one who had a good job. When Mrs. Canchola was asked why her husband was kidnapped and not her, she said she did not know. The Member drew a negative inference from this but provided no rationale for why it was implausible. 21 The police report states that the second incident occurred on June 26, 2008. The first translation of the report submitted to the Board contained an error, placing the incident two years earlier. This was quickly found and corrected in a revised version submitted to the Board. This is indicated by a change on the translated copy with the translators name next to the fixed date. The Member found that the police report was “confusing, unclear and untidy”. The transla- tor’s error should not have been used to question the applicants’ credibility. 22 The Member found that there was no persuasive evidence that the 2007 incident took place because there was no police report. He discounted a letter from Mr. Sanchez’ father describing the incident. The fact that there was no police report for the first incident does not undermine the claim in the circumstances of this case. It is consistent with the applicants’ story that they feared repercussions if they reported the first incident and that they sought immediate protection from the police when they felt an increased threat and sense of fear from the second incident. Moreover, the father’s letter described how he and his wife had moved their city of residence out of fear as a result of these threats. The letter, while self-serving, had some corroborative value. The Member erred, in my view, in determining that there was no persuasive evidence that the 2007 incident took place without assigning any weight to the letter. 23 The Member’s finding that there was no credible or trustworthy evidence on which a favourable decision could be made, and that there was therefore no credible basis for the claim, failed to take into account the documentary evidence before the Member with respect to police corruption, criminality and impunity in Mexico. Even if it had been open to the Member to find that the applicants were not credible on sound plausibility reasoning, taking all of the documentary evidence into account, including the 2008 police report, it was not reasonable to conclude that there was no credible or trustworthy evidence in support of the claim. 24 The Member’s conclusion that the applicants “embarked on an elaborate scheme to fabricate a story around police corruption” was not well founded on a careful review of their oral testimony or the documentary evidence. The findings do not fall within a range of possible, acceptable outcomes that are defensible on the facts and the law and so the decision must be overturned. 25 No serious questions of general importance were proposed by the parties and none will be certified. R. v. Kalmar 79

Judgment IT IS THE JUDGMENT OF THIS COURT that the application is granted and the matter is remitted to the Board for a fresh hearing and a new determination by a differently constituted panel. No questions are certified. Application granted.

[Indexed as: R. v. Kalmar] R. v. Andras Kalmar Ontario Superior Court of Justice J.A. Ramsay J. Heard: January 14, 2011 Judgment: January 14, 2011 Docket: 2836/11, 2011 ONSC 335 Mr. Denis Allan for DPP Mr. Marshall Sack, Q.C. for Applicant Immigration and citizenship –––– Enforcement — Arrest and detention — Detention review — General principles –––– Accused entered Canada on Hungarian passport in name belonging to criminal — Accused resembled photograph in first passport but not photographs matching identity first passport was issued for — Accused left Canada and re-entered one month later on different Hungarian passport — Accused made Convention refugee claim — It was discovered name on passport used by accused was person with criminal record in Hungary — Accused was charged with misrepresenting or withholding material facts under s. 128 of Immigration and Refugee Protection Act — Justice of peace ordered accused to be detained on secondary and tertiary grounds — Accused brought application to review detention order — Application dismissed — Clear reading of reasons showed that he found accused posed substantial threat or he would not have been concerned with sufficiency of surety — Accused entered Canada on second occasion as visitor but was intending to stay and withheld information as to his criminal record — Even though detention on secondary and tertiary grounds was not reasonable, accused should be detained based on primary grounds — Accused had no roots in community, had record for fraud and blackmail, wanted to stay in Canada and had history of lying and withholding information to achieve that goal — Detention was necessary to ensure accused appeared in court. Statutes considered: Criminal Code, R.S.C. 1985, c. C-46 s. 515(6)(b) — referred to s. 520 — pursuant to 80 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d)

Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 128 — referred to s. 136 — referred to

APPLICATION for review of detention order.

J.A. Ramsay J.:

1 The accused applies under s.520 of the Criminal Code to review the detention order made on December 13, 2010 by Justice of the Peace Vincent Formosi. 2 The accused is charged with two counts of misrepresenting or withholding material facts under s.128 of the Immigration and Refugee Protection Act. He is charged with making misrepresentations to immigration officers at Dorval, Que- bec on February 11, 2009 and with making misrepresentations in a claim for refugee status at Hamilton on February 24, 2009. The Dorval charge can be tried in Ontario by virtue of s.136 of the Act. 3 The evidence is that on January 20, 2009, a man arrived at Toronto’s international airport on a flight from Hungary. The man produced a passport in the name Andras Bogdan, with a date of birth of 1954-02-22. The man left Canada voluntarily rather than be fingerprinted. He made a claim for refugee status, but he withdrew it. He produced a Hungarian passport, of which CBSA officers took a photocopy. The photograph of the bearer resembles the accused. The trier of fact could find that it was the accused, as the Crown alleges. I would put it no higher than that. The name and date of birth on the passport belong to a Hun- garian criminal, whose photograph has been produced. He does not resemble the accused or the photograph in the passport. 4 On February 11, 2009, the accused arrived at Dorval Airport on a flight from Hungary. He produced a Hungarian passport in the name Andras Kalmar, with a date of birth of 1960-05-20. He claimed to be a visitor. He was allowed to enter Canada. He was accompanied by Monika Illes and two young girls, said to be his wife and daughters. On February 24, 2009 he made a claim for refugee status at the office of Citizenship and Immigration Canada in Hamilton. He has since sent for three more girls, also said to be his daughters, and made refugee claims on their behalf. 5 In July 2010, an officer reviewing files noted the photographs of “Bogdan” and Kalmar and began the investigation with resulted in the arrest of the accused. 6 The fingerprints of the accused were sent to the Hungarian authorities. They confirm that the accused is Andras Kalmar, born 1960-05-20, and that he has a record in Hungary for fraud and blackmail. R. v. Kalmar J.A. Ramsay J. 81

7 The signature of Andras Bogdan on the passport that was used in Toronto bears no resemblance to the signature of Andras Bogdan in the Hungarian police records. It does to my eye bear some resemblance to the signatures on the passport produced by the accused in Dorval and the claim for refugee status in Ham- ilton, but that is not supported by any expert evidence at this point. 8 The justice of the peace issued a detention order on the secondary and tertiary grounds. First the applicant argues that the justice did not make the finding that the accused was a substantial risk to commit an offence or interfere with the administration of justice. As a result, the justice’s finding that the proposed surety is insufficient is difficult to analyse in a meaningful way. Moreover, the evidence does not justify finding the requisite substantial risk. 9 While not explicit, I think that on a fair reading of the justice’s reasons, taking into account that they were given orally, he found that the accused posed the substantial risk to offend or interfere. Otherwise he would not have been concerned with the sufficiency of the surety. 10 I also think that he was right to find the surety wanting. In cross-examination, in the context of questions about lying upon entry to Canada, she was asked, “And once turned away, this gentleman came in again to a different airport? A. Very brave, I would say.” 11 Whatever the justice thought of the surety, however, the applicant submits that the evidence does not warrant a finding that a surety is necessary to satisfy the secondary ground. Finally, the justice did not advert to the strength of the Crown’s case, which is a factor to be considered on the secondary ground as well when dealing with the other two grounds. 12 The Crown’s case on count 1 seems to have collapsed. The count specifies that at Dorval the misrepresentation was “falsely presenting himself as Andras Kalmar.” The Crown’s position must now be that the accused is Andras Kalmar, and he falsely presented himself as Andras Bogdan at Toronto. 13 On count 2, however, it is open to the Crown to prove misrepresentation to the CIC office in Hamilton whether the accused was the person who arrived at Toronto in January 2009 or not. As to whether he was that man, the proof is not overwhelming, but it is, at least as far as one can tell at this point, arguable. But even if he was not the man who came posing as Bogdan, he gained entry to Canada claiming to be a visitor when he appears to have been intending to stay, and he withheld mention of his criminal record. 14 Finally the offence is not the most serious offence in the Act. The maximum penalty for contravening s.128 is imprisonment for 5 years or a fine not exceed- ing $100,000, if the offence is prosecuted on indictment. 15 Taking all this into account, together with the fact that the accused appears to have been living with his family quietly in a Hamilton neighbourhood for some months, subject to one domestic dispute that was resolved on a basis that 82 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d)

the evidence does not reveal in any detail, I do not think that the evidence justified the findings that were made on the secondary ground or the tertiary ground. I therefore have to decide what would be the appropriate disposition as to interim release. 16 I first have to consider the primary ground. I am not sure just what the status of the accused is in Canada but I can only go by the only evidence on the record, which is found on pp. 5-6 of the transcript. At that point, Crown counsel advises the justice that the accused was granted “temporary resident status.” A temporary resident is a resident, so the reverse onus provided by s.515 (6) (b) of the Criminal Code does not apply. 17 Whether the accused was the man who posed as Bogdan at Toronto or not, he has no roots in this community, he has a record for fraud and blackmail, he wants to stay in Canada and there is strong evidence that he does not mind lying or withholding information to effect his purpose. I am satisfied that his detention is necessary to ensure his attendance in court. 18 Accordingly the application is dismissed and the detention order stands. Application dismissed. Singh v. Canada (Minister of Citizenship & Immigration) 83

[Indexed as: Singh v. Canada (Minister of Citizenship & Immigration)] Paramjit Singh, Applicant and The Minister of Citizenship and Immigration, Respondent Nirvair Singh, Applicant and The Minister of Citizenship and Immigration, Respondent Jagtaran Singh, Applicant and The Minister of Citizenship and Immigration Federal Court John A. O’Keefe J. Heard: September 8, 2010 Judgment: December 17, 2010 Docket: IMM-6162-09, IMM-6164-09, IMM-6165-09, 2010 FC 1306 Mendel M. Green, Q.C., Hilete Stein, for Applicants Stephen Jarvis, for Respondent Immigration and citizenship –––– Admission — Application for temporary resident or immigrant visa — Documentation and corroborative evidence –––– Three applicants were citizens of India and trained to become ragis or priests — One of their duties consisted of delivering hymns — Secretary of Ontario temple heard them perform in In- dia — Secretary invited applicants to work at temple in Ontario — Applications were made for temporary work permits — Applications were dismissed — Visa officer refused applications on basis that he was not satisfied that they were bona fides of applications, that they met job requirements, or that they would leave Canada at end of authorized stay — Applicants brought application for judicial review — Application granted — Re- fusal letter stated that applications were refused because they did not meet requirements of job; applicants then submitted letters outlining their previous work experience and training — Since officer found that applicants had not met requirements of job offer, these letters were relevant and she was required to acknowledge and analyse them — Applicants were not put on notice that officer was concerned with veracity of experience letters and were not requested to present further documents to corroborate letters; this was error in law. Immigration and citizenship –––– Admission — Appeals and judicial review — Judi- cial review — Miscellaneous issues –––– Duty of fairness — Three applicants were citizens of India and trained to become ragis or priests — One of their duties consisted of delivering hymns — Secretary of Ontario temple heard them perform in India — Secre- tary invited applicants to work at temple in Ontario — Applications were made for temporary work permits — Applications were dismissed — Visa officer refused applications on basis that he was not satisfied that they were bona fides of applications, that they met job requirements, or that they would leave Canada at end of authorized stay — Appli- cants brought application for judicial review — Application granted — Refusal letter 84 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d) stated that applications were refused because they did not meet requirements of job; applicants then submitted letters outlining their previous work experience and training — Since officer found that applicants had not met requirements of job offer, these letters were relevant and she was required to acknowledge and analyse them — Applicants were not put on notice that officer was concerned with veracity of experience letters and were not requested to present further documents to corroborate letters; this was error in law. Cases considered by John A. O’Keefe J.: Cepeda-Gutierrez v. Canada (Minister of Citizenship & Immigration) (1998), 157 F.T.R. 35, 1998 CarswellNat 1981, [1998] A.C.F. No. 1425, [1998] F.C.J. No. 1425 (Fed. T.D.) — considered Gonzalez v. Canada (Minister of Citizenship & Immigration) (2008), 2008 CarswellNat 2997, 2008 FC 983 (F.C.) — considered Gulati v. Canada (Minister of Citizenship & Immigration) (2010), 89 Imm. L.R. (3d) 238, 2010 CF 451, 2010 CarswellNat 4178, 2010 FC 451, 2010 CarswellNat 1743 (F.C.) — referred to Hassani v. Canada (Minister of Citizenship & Immigration) (2006), 2006 CF 1283, 2006 CarswellNat 5123, [2007] 3 F.C.R. 501, 2006 CarswellNat 3387, 2006 FC 1283, 302 F.T.R. 39 (Eng.), [2006] F.C.J. No. 1597 (F.C.) — referred to Khosa v. Canada (Minister of Citizenship & Immigration) (2009), 82 Admin. L.R. (4th) 1, 2009 SCC 12, 2009 CarswellNat 434, 2009 CarswellNat 435, 304 D.L.R. (4th) 1, 77 Imm. L.R. (3d) 1, 385 N.R. 206, (sub nom. Canada (Citizenship & Immigration) v. Khosa) [2009] 1 S.C.R. 339, [2009] S.C.J. No. 12 (S.C.C.) — followed Kojouri v. Canada (Minister of Citizenship & Immigration) (2003), 2003 FC 1389, 2003 CarswellNat 3804, 2003 CarswellNat 4457, [2003] F.C.J. No. 1779 (F.C.) — referred to Manivannan v. Canada (Minister of Citizenship & Immigration) (2008), 2008 Car- swellNat 5284, 2008 CarswellNat 4769, 2008 FC 1392, 77 Imm. L.R. (3d) 193, 338 F.T.R. 203 (Eng.), 2008 CF 1392 (F.C.) — referred to Olorunshola v. Canada (Minister of Citizenship & Immigration) (2007), 318 F.T.R. 142 (Eng.), 2007 CarswellNat 3531, 2007 FC 1056, 66 Imm. L.R. (3d) 192, 66 Admin. L.R. (4th) 155 (F.C.) — referred to Salman v. Canada (Minister of Citizenship & Immigration) (2007), 63 Imm. L.R. (3d) 285, 2007 CarswellNat 3464, 2007 CF 877, 2007 FC 877, 2007 CarswellNat 2749, [2007] F.C.J. No. 1142 (F.C.) — referred to Samuel v. Canada (Minister of Citizenship & Immigration) (2010), 2010 CarswellNat 950, 2010 CF 223, 2010 CarswellNat 435, 2010 FC 223 (F.C.) — referred to Uppal v. Canada (Minister of Citizenship & Immigration) (2005), 2005 FC 1133, 2005 CarswellNat 2437, 2005 CF 1133, 2005 CarswellNat 4845, [2005] F.C.J. No. 1390 (F.C.) — referred to Yadav v. Canada (Minister of Citizenship & Immigration) (2010), 2010 CF 140, 2010 CarswellNat 3619, 8 Admin. L.R. (5th) 86, 2010 CarswellNat 644, 2010 FC 140 (F.C.) — referred to Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 22(2) — referred to Singh v. Canada (Minister of Citizenship & Immigration) John A. O’Keefe J. 85

s. 72(1) — pursuant to Rules considered: Federal Courts Immigration and Refugee Protection Rules, SOR/93-22 R. 22 — considered

APPLICATION for judicial review from decision of visa officer rejecting applications for temporary work permits.

John A. O’Keefe J.:

1 This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act), for judicial review of a decision by a visa officer (the officer) at the Canadian High Commission in New Delhi, India, dated October 13, 2009, wherein the officer denied the applicants’ applications for temporary work permits. 2 The applicants request: 1. That the decision of the officer be quashed and the claim remitted to the Immigration Section of the High Commission of Canada in New Delhi, India, for reconsideration by a different officer; 2. Such further and other relief as may be advised and this Honourable Court considers appropriate in the circumstances.

Background 3 Paramjit Singh is a citizen of India, born on August 30, 1989. He trained to become a Ragi (monk/priest) for five years in Moga in the province of Punjab, India, beginning in April 1998. From 2004 to 2007, he worked as a Ragi in Nairobi after which he returned to India. 4 Nirvair Singh is a citizen of India born on March 25, 1983. He trained to become a Ragi for five years in Moga in the province of Punjab, India, beginning in June 1992. 5 Jagtaran Singh is a citizen of India born on May 6, 1972. He trained to become a Ragi for five years in Moga in the province of Punjab, India, beginning in June 1987. 6 The applicants’ duties as Ragis consist of, among others, delivering daily prayer services, hymns, songs and sermons. The prayers take place between 3:30 a.m. and 6:45 a.m. in the morning and 4:30 p.m. and 9:30 p.m. in the evening. 7 In 2008, the Secretary of the Nanaksar Satsang Sabha of Ontario heard the applicants perform as a group at the Nanaksar Gurdwara in Moga, India. The Secretary was impressed with the performance and recommended them to the Executive Committee of the Nanaksar Satsang Sabha of Ontario. Following this, 86 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d)

they were then invited to work at the Nanaksar Satsang Sabha Gurdwara (Sikh temple) in Brampton (the Brampton Gurdwara). 8 The Brampton Gurdwara is part of an international chain of Gurdwaras. The headquarters is in New Delhi where the applicants currently work. 9 The Brampton Gurdwara obtained a positive labour market opinion (LMO) in June 2009 for four Ragi positions each at a salary of $36,000 per year plus lodging and other expenses. In August 2009, all three applicants applied for temporary work permits to work as Ragis at the Brampton Gurdwara, pursuant to this positive LMO. 10 On October 13, 2009, the officer conducted three separate interviews of the applicants. Their applications were refused on the basis that the officer was not satisfied as to the bona fides of the applications, that they met the requirements of the job or that they would leave Canada at the end of the authorized stay.

Officer’s Decision 11 The officer provided one conclusion in the Computer Assisted Immigration Processing System (CAIPS) notes for all three applicants. 12 The officer’s refusal letter indicates through a checked box that the applicants did not meet the requirements of the job as specified in the job offer. In addition, the officer handwrote that the applicants had insufficient knowledge of the religion and its teachings and had provided inconsistent answers. 13 In the CAIPS notes, the officer questioned the bona fides of the applicants. She was not satisfied that they were genuine religious workers and would leave Canada when requested to do so. 14 The officer was concerned with inconsistencies in the responses of the applicants regarding their activities the morning of the interview, the size of the Ca- nadian congregation and what their duties would be at the Brampton Gurdwara. Further, the officer noted that the applicants’ religion taught them not to accept money for their services, yet they were to be paid a salary beyond their living expenses while in Canada. 15 As such, the officer refused the applications for temporary work permits.

Issues 16 The applicants submitted the following issues for consideration: 1. Did the immigration officer err in her assessment of the bona fides of the applicants’ applications for work permits by failing to consider the applicants’ experience letters? 2. Did the immigration officer err by failing to consider the principle of dual intent set out in subsection 22(2) of the Immigration and Refugee Protection Act? Singh v. Canada (Minister of Citizenship & Immigration) John A. O’Keefe J. 87

3. The weight to be given to the officer’s affidavit. 4. Whether the officer erred in making a negative inference with respect to the applicants’ salaries in Canada when she assessed the bona fides of the applications. 5. Whether the officer’s determination that the applicants had made inconsistent statements was unreasonable. 6. Whether costs should be awarded to the applicants. 17 I would rephrase the issues as follows: 1. What is the appropriate standard of review? 2. Did the officer base her decision on an erroneous finding of fact made without considering the material before her? 3. Did the officer breach a duty of fairness to the applicants by not alerting them to her concerns about the veracity of their experience letters? 4. Did the officer ignore the applicants’ right to enter Canada with a dual intent? 5. Did the officer make an unreasonable non-credibility finding? 6. Should costs be awarded to the applicants?

Applicants’ Written Submissions 18 The applicants submit that the officer did not consider the letters outlining their experience and training as Ragis. This was unreasonable as the letters were positive indicators of their ability to meet the requirements of the job in Brampton. 19 In addition, the applicants submit that the officer applied a broad generaliza- tion about the credibility of letters from Indian employers and failed to consider the actual letters before her, amounting to a breach of natural justice. If she had concerns about the veracity of the letters, the officer should have requested further documentation. By not doing so, the officer put the applicants in a position where they could not satisfy her of their experience regardless of whether they provided the documentation requested by CIC. 20 The applicants also provided detailed descriptions during their interview about their training, experience as Ragis, the daily routine at the Gurdwara, their musical skills and information about their religion. Yet, the officer concluded that all three applicants did not meet the job requirements and had insufficient knowledge of the religions and its teachings. The applicants submit that this demonstrates that the officer did not consider the information the applicants provided during their interview in reaching her decision. 21 The applicants submit that the officer erred by not giving any weight to the assessment by a previous officer who noted each applicant’s experience as a 88 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d)

Ragi and stated that the applicants met the Human Resources and Social Devel- opment Canada (HRSDC) requirements. 22 The applicants submit that it was unreasonable for the officer to find their responses inconsistent. Any differences between their answers were small and may be attributed to the different roles they played in the services. Their correct answers were consistent with the job offer and are evidence of their credibility and experience as Ragis and they should not be penalized for not knowing the size of the congregation in Canada. The officer unreasonably concluded that they lacked sufficient knowledge of the job in Canada as she did not consider the information they each provided in the interview. 23 The applicants submit that they would receive a salary of $36,000 to cover living expenses and although they did not explain that they would donate any excess above living costs to charity, there is nothing to suggest the salary was incentive for the applicants to stay in Canada unlawfully. The negative finding regarding the salary was unsupported and led to the assessment of the bona fides of the applicant. 24 The applicants submit that the officer failed to apply the principle of dual intent of subsection 22(2) of the Act. The applicants were permitted to have the intention of becoming permanent residents as long as they returned to India at the end of the authorized stay. The applicants provided sufficient evidence of ties to India to show that they would not stay in Canada beyond the authorized period. In particular, Paramjit Singh provided evidence of his previous travel to and return from Kenya, not considered by the officer, which is further evidence that he would not overstay the temporary work permit. 25 While the officer has acknowledged that her handwritten comments about the lack of knowledge of the religion were erroneous, it is improbable that these reasons did not form part of her actual reasons for refusal. 26 The applicants submit that the officer is improperly using her affidavit to improve upon her reasons and her affidavit should not be given any weight. For example, they submit that the officer did not indicate concerns with credibility in the refusal letter or the interview but now states that her decision focused around the applicants’ lack of credibility. In addition, her reasons in the refusal letter should be taken at face value since they were entered closer in time to the decision than the new affidavit. 27 The applicants submit that the numerous significant errors and inconsistencies in the officer’s CAIPS notes and affidavit have caused significant delay and hardship to the applicants and they should be awarded costs.

Respondent’s Written Submissions 28 The respondent submits that the fact that the officer was not convinced by the letters of experience does not mean she did not consider them. She was only Singh v. Canada (Minister of Citizenship & Immigration) John A. O’Keefe J. 89

required to acknowledge evidence before her which was relatively significant. Since the officer sees many of these letters which are fictitious, it was reasonable for her to require more than just the letters as evidence of experience. The officer did not refer to these letters because reviewing letters such as these is a routine part of her job. 29 The respondent submits that an assessment by a previous officer based on the LMO cannot be used as evidence of the applicants’ experience because the LMO assumes the truth of all information in the applicants’ applications and the officer’s assessment merely acknowledges that the training and experience satisfy the HRSDC requirements. The officer deciding the visa application must make her own assessment. 30 The respondent submits that the inconsistent answers of the Ragis raised serious concerns for the officer as to whether they were a group. The inconsistencies were not small. Getting some answers correct about the prospective employer does not cancel out the applicants’ wrong answers, especially when they are substantial in nature. 31 The respondent acknowledges that the handwritten statement that the applicants lacked religious knowledge was erroneous. However, the respondent submits that this is not fatal to the decision because the decision was wholly based on other concerns: the inconsistent answers, lack of basic knowledge about the employer, the serious breach of faith made by accepting a salary above and beyond the living expenses. 32 The respondent submits that the non-credibility finding was reasonable. The applicants admitted that the salary went against their ethical obligations and never indicated that they would give the remainder to charity. 33 The officer’s finding that the applicants were using the work program to facilitate access to Canada should be read as using the program to facilitate unlawful entry to Canada which was part of her position to assess and was not ignor- ing the principle of dual intent. 34 The respondent submits that the applicants have not raised any reviewable errors as none of the findings were unreasonable and the officer did not infringe on the applicants’ right to enter Canada with dual intent.

Analysis and Decision Issue 1 What is the appropriate standard of review? 35 Refusal of a temporary work permit is an administrative decision made within the officer’s legislative authority and is ostensibly a determination of fact (see Samuel v. Canada (Minister of Citizenship & Immigration), 2010 FC 223 (F.C.) at paragraph 26). In accordance with the direction of the Supreme Court of Canada, administrative fact-finding is afforded a high degree of deference and reasonableness is the appropriate standard of review for the officer’s factual de- 90 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d)

termination (see Khosa v. Canada (Minister of Citizenship & Immigration), 2009 SCC 12, [2009] 1 S.C.R. 339 (S.C.C.) at paragraph 46). 36 However, any issues that go to the fairness of an impugned decision must be decided on a standard of correctness. No deference is afforded a decision-maker in this regard and “it is up to this Court to form its own opinion as to the fairness of the hearing” (see Gonzalez v. Canada (Minister of Citizenship & Immigra- tion), 2008 FC 983 (F.C.) at paragraph 16).

Issue 2 Did the officer base her decision on an erroneous finding of fact made without considering the material before her? 37 The officer is expected to acknowledge and analyze the relevant evidence before her (see Cepeda-Gutierrez v. Canada (Minister of Citizenship & Immi- gration) (1998), 157 F.T.R. 35, [1998] F.C.J. No. 1425 (Fed. T.D.) at paragraph 17). A court may infer that the officer made an erroneous finding of fact if the officer failed to mention evidence before her which was relevant and pointed to a different conclusion than that which she reached (see Cepeda-Gutierrez above, at paragraph 15). 38 The refusal letter stated that the applications were refused because the applicants did not meet the requirements of the job. The applicants each submitted two letters outlining their previous work experience and training as Ragis. Since the officer found that the applicants did not meet the requirements of the job offer, these letters were relevant and pointed to a different conclusion than the one she reached. She was required to acknowledge and analyze them. 39 The officer stated in her affidavit that reviewing letters such as these is her standard practice and that is why they were not referred to directly. However, even if the officer sees and considers letters of this type in her position, it remains that she had a legal duty to acknowledge these specific pieces of evidence for this application and the failure to do so was unreasonable and constitutes a reviewable error.

Issue 3 Did the officer breach a duty of fairness to the applicants by not alerting them to her concerns about the veracity of the experience letters? 40 An officer is not generally under a duty to inform an applicant about concerns regarding the application which arise directly from the requirements of the legislation or regulations (see Hassani v. Canada (Minister of Citizenship & Im- migration), 2006 FC 1283, [2007] 3 F.C.R. 501 (F.C.) at paragraphs 23 and 24; Gulati v. Canada (Minister of Citizenship & Immigration), 2010 FC 451 (F.C.) at paragraph 43). 41 However, an officer is obliged to inform an applicant of any concerns related to the veracity of documents and is required to make further inquires (see Kojouri v. Canada (Minister of Citizenship & Immigration), 2003 FC 1389 (F.C.) at paragraphs 18 and 19; Olorunshola v. Canada (Minister of Citizenship Singh v. Canada (Minister of Citizenship & Immigration) John A. O’Keefe J. 91

& Immigration), 2007 FC 1056, 66 Imm. L.R. (3d) 192 (F.C.) at paragraphs 29 and 33; Salman v. Canada (Minister of Citizenship & Immigration), 2007 FC 877, 63 Imm. L.R. (3d) 285 (F.C.) at paragraphs 12 and 16). 42 The officer stated in her affidavit regarding the past experience letters submitted by the applicants, that the office “sees many such letters which turn out to be fictitious.” As such, she noted that she requires “more than the letters, for instance, newspaper cut outs, photos of them practicing or letters of reference, to properly corroborate claims of training, knowledge & experience.” However, the applicants were not put on notice that the officer was concerned with the veracity of the letters and were not requested to present further documents to corroborate the letters. This was an error in law. 43 Based on the above two issues, I would conclude that the officer’s decision breached the duty of fairness to the applicants and it was also unreasonable in that the officer based her decision on an erroneous finding of fact made without regard to the material before her. Consequently, I would remit the applications to another officer for reconsideration. 44 Because of my findings on the above issues, I need not deal with Issues 4 and 5.

Issue 6 Should costs be awarded to the applicants? 45 The applicants seek costs of $2,500 each. Under Rule 22 of the Federal Courts Immigration and Refugee Protection Rules, SOR/93-22, costs are only to be awarded in immigration cases where “special reasons” exist. Special reasons may exist where one party acts in a manner that is unfair, oppressive, improper, in bad faith or where there is conduct that unnecessarily or unreasonably prolongs the proceedings (see Manivannan v. Canada (Minister of Citizenship & Immigration), 2008 FC 1392, 77 Imm. L.R. (3d) 193 (F.C.) at paragraph 51). 46 This Court has held that the “threshold for ‘special reasons’ within the meaning of Rule 22 is high” (see Yadav v. Canada (Minister of Citizenship & Immi- gration), 2010 FC 140, 8 Admin. L.R. (5th) 86 (F.C.) at paragraph 39). Even where the pace of the application processing is slow, special reasons to award costs will not often exist (see Uppal v. Canada (Minister of Citizenship & Immi- gration), 2005 FC 1133, 141 A.C.W.S. (3d) 831 (F.C.) at paragraph 8). 47 In this case, the applicants have failed to establish any behaviour which would qualify as special reasons. As such, I am not prepared to make an award of costs. 48 The application for judicial review is therefore allowed. 49 Neither party wished to submit a proposed serious question of general importance for my consideration for certification. 92 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d)

Judgment 50 THIS COURT ORDERS that: 1. The application for judicial review is allowed, the decision of the officer is set aside and the matter is remitted to a different officer for redetermination. 2. No order for costs shall issue. Application granted.

Annex Relevant Statutory Provisions Immigration and Refugee Protection Act, S.C. 2001, c. 27 22.(2) An intention by a foreign national to become a permanent resident does not preclude them from becoming a temporary resident if the officer is satisfied that they will leave Canada by the end of the period authorized for their stay. ... 72.(1) Judicial review by the Federal Court with respect to any matter — a decision, determination or order made, a measure taken or a question raised — under this Act is commenced by making an application for leave to the Court. 22.(2) L’intention qu’il a de s’établir au Canada n’empêche pas l’étranger de devenir résident temporaire sur preuve qu’il aura quitté le Canada a` la fin de la période de séjour autorisée. ... 72.(1) Le contrôle judiciaire par la Cour fédérale de toute mesure — déci- sion, ordonnance, question ou affaire — prise dans le cadre de la présente loi est subordonné au dépôt d’une demande d’autorisation. Federal Courts Immigration and Refugee Protection Rules, SOR/93-22 22.No costs shall be awarded to or payable by any party in respect of an application for leave, an application for judicial review or an appeal under these Rules unless the Court, for special reasons, so orders. 22. Sauf ordonnance contraire rendue par un juge pour des raisons spéciales, la demande d’autorisation, la demande de contrôle judiciaire ou l’appel in- troduit en application des présentes règles ne donnent pas lieu a` des dépens. Chaudhry v. Canada 93

[Indexed as: Chaudhry v. Canada (Minister of Citizenship & Immigration)] Majid Hassan Chauhdry, Applicant and Minister of Citizenship and Immigration, Respondent Federal Court James Russell J. Heard: November 25, 2010 Judgment: January 11, 2011* Docket: IMM-1426-10, 2011 FC 22 Ali M. Amini, for Applicant Michael Butterfield, for Respondent Immigration and citizenship –––– Exclusion and removal — Inadmissible classes — Health –––– Applicant was full time PhD student in United States — Applicant received renal transplant in 2004 and required daily immunosuppressive medication — Applicant applied for permanent residence in Canada as skilled worker — Application was denied on ground that his medical condition might require services, costs of which would likely exceed average Canadian per capita costs over five years — Applicant brought application for judicial review on ground that there was no meaningful explanation of how evidence was taken into account — Application dismissed — Individualized assessment did take place — Letter to applicant and his response made it clear that he knew perfectly well that decisive issue was drug costs and excessive demands on public health system — He understood this because, in his response, he stated that problem could be overcome and he could make arrangement for private or group plan — Applicant’s resolution was declaration of intent; it did not constitute plan — Furthermore, his promise was not enforceable. Immigration and citizenship –––– Admission — Appeals and judicial review — Judi- cial review — Miscellaneous issues –––– Procedural fairness — Applicant was full time PhD student in United States — Applicant received renal transplant in 2004 and required daily immunosuppressive medication — Applicant applied for permanent residence in Canada as skilled worker — Application was denied on ground that his medical condition might require services, costs of which would likely exceed average Canadian per capita costs over five years — Applicant brought application for judicial review on ground that there was no meaningful explanation of how evidence was taken into account — Appli- cation dismissed — Individualized assessment did take place — Letter to applicant and his response made it clear that he knew perfectly well that decisive issue was drug costs and excessive demands on public health system — He understood this because, in his response, he stated that problem could be overcome and he could make arrangement for

*A corrigendum issued by the Court on March 22, 2011 has been incorporated herein. 94 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d) private or group plan — Applicant’s resolution was declaration of intent; it did not constitute plan — Furthermore, his promise was not enforceable. Cases considered by James Russell J.: Ashraf v. Canada (Minister of Citizenship & Immigration) (2009), 2009 CarswellNat 3976, 2009 CarswellNat 3977 (Imm. & Ref. Bd. (App. Div.)) — referred to Barnash v. Canada (Minister of Citizenship & Immigration) (2009), 2009 CF 842, 2009 CarswellNat 4137, 2009 FC 842, 2009 CarswellNat 2515, 348 F.T.R. 145 (Eng.), [2009] F.C.J. No. 990 (F.C.) — referred to Brahim c. Canada (Minister of Citizenship & Immigration) (2003), 2003 FC 1313, 2003 CarswellNat 4749, 2003 CF 1313, 2003 CarswellNat 3521 (F.C.) — referred to C.U.P.E. v. Ontario (Minister of Labour) (2003), 2003 CarswellOnt 1803, 2003 SCC 29, 2003 CarswellOnt 1770, 2003 C.L.L.C. 220-040, [2003] 1 S.C.R. 539, (sub nom. Canadian Union of Public Employees v. Ontario (Minister of Labour)) 173 O.A.C. 38, (sub nom. Canadian Union of Public Employees v. Ontario (Minister of Labour)) 66 O.R. (3d) 735 (note), 226 D.L.R. (4th) 193, (sub nom. Canadian Union of Public Employees v. Ontario (Minister of Labour)) 304 N.R. 76, 50 Admin. L.R. (3d) 1, REJB 2003-41592, [2003] S.C.J. No. 28 (S.C.C.) — referred to Canada (Minister of Citizenship & Immigration) v. Charles (2007), 2007 CarswellNat 4884, 2007 FC 1146, 69 Imm. L.R. (3d) 153, 2007 CF 1146, 2007 CarswellNat 6132, [2007] A.C.F. No. 1493, [2007] F.C.J. No. 1493 (F.C.) — considered Companioni v. Canada (Minister of Citizenship & Immigration) (2009), 360 F.T.R. 157 (Eng.), 2009 CarswellNat 4596, 2009 FC 1315, 2009 CarswellNat 4965, 2009 CF 1315, 87 Imm. L.R. (3d) 271, [2009] F.C.J. No. 1688 (F.C.) — considered Cupid v. Canada (Minister of Citizenship & Immigration) (2007), 2007 CF 176, 2007 CarswellNat 366, 2007 FC 176, 2007 CarswellNat 2371, [2007] F.C.J. No. 244 (F.C.) — referred to Deol v. Canada (Minister of Citizenship & Immigration) (2002), 2002 CarswellNat 1477, 2002 FCA 271, 291 N.R. 218, 22 Imm. L.R. (3d) 153, 97 C.R.R. (2d) 1, 2002 CAF 271, 215 D.L.R. (4th) 675, 2002 CarswellNat 2847, [2003] 1 F.C. 301, 228 F.T.R. 320 (note), [2002] F.C.J. No. 949 (Fed. C.A.) — considered Fallahi v. Canada (Minister of Citizenship & Immigration) (2003), 2003 CF 906, 2003 CarswellNat 3201, 2003 CarswellNat 2282, 2003 FC 906, 36 Imm. L.R. (3d) 51 (F.C.) — referred to Hayama v. Canada (Minister of Citizenship & Immigration) (2003), 2003 CF 1305, 2003 CarswellNat 4769, 2003 FC 1305, 33 Imm. L.R. (3d) 89, 10 Admin. L.R. (4th) 109, 2003 CarswellNat 3514, [2003] F.C.J. No. 1642 (F.C.) — considered Hersi v. Canada (Minister of Citizenship & Immigration) (2000), 198 F.T.R. 120, 2000 CarswellNat 2960, [2000] F.C.J. No. 2136 (Fed. T.D.) — referred to Hilewitz v. Canada (Minister of Citizenship & Immigration) (2005), 50 Imm. L.R. (3d) 40, 2005 SCC 57, 2005 CarswellNat 3234, 2005 CarswellNat 3235, 340 N.R. 102, 259 D.L.R. (4th) 244, 33 Admin. L.R. (4th) 1, [2005] 2 S.C.R. 706, [2005] S.C.J. No. 58 (S.C.C.) — considered Hossain v. Canada (Minister of Citizenship & Immigration) (2006), 54 Imm. L.R. (3d) 107, [2006] F.C.J. No. 602, 2006 CarswellNat 993, 2006 FC 475, 2006 CF 475, 2006 CarswellNat 5020 (F.C.) — referred to Chaudhry v. Canada 95

Jiwanpuri v. Canada (Minister of Employment & Immigration) (1990), (sub nom. Canada (Minister of Employment & Immigration) v. Jiwanpuri) 109 N.R. 293, 1990 CarswellNat 29, 10 Imm. L.R. (2d) 241 (Fed. C.A.) — referred to Kidd v. Greater Toronto Airports Authority (2004), 2004 FC 703, 2004 CarswellNat 1410, 2004 CF 703, 2004 CarswellNat 2926, 252 F.T.R. 277, [2004] F.C.J. No. 859 (F.C.) — referred to Kidd v. Greater Toronto Airports Authority (2005), 332 N.R. 380, 2005 FCA 81, 2005 CarswellNat 565, 2005 CAF 81, 2005 CarswellNat 4755, [2005] F.C.J. No. 377 (F.C.A.) — referred to Ladouceur v. Canada (Attorney General) (2006), 2006 CF 1438, 2006 CarswellNat 5597, 2006 FC 1438, 2006 CarswellNat 4255, [2006] F.C.J. No. 1817 (F.C.) — referred to Marine Atlantic Inc. v. C.M.S.G. (2000), (sub nom. Marine Atlantic Inc. v. Canadian Merchant Service Guild) 258 N.R. 112, 2000 CarswellNat 1574, 25 Admin. L.R. (3d) 250, 61 C.L.R.B.R. (2d) 174, (sub nom. Marine Atlantic Inc. v. Canadian Merchant Service Guild) [2000] F.C.J. No. 1217 (Fed. C.A.) — referred to Mazhari v. Canada (Minister of Citizenship & Immigration) (2010), 367 F.T.R. 238 (Eng.), 2010 FC 467, 2010 CarswellNat 1261 (F.C.) — referred to New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Bruns- wick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — followed Ogunfowora v. Canada (Minister of Citizenship & Immigration) (2007), 2007 CF 471, 2007 FC 471, 2007 CarswellNat 1022, 63 Imm. L.R. (3d) 157, 2007 CarswellNat 3368, [2007] F.C.J. No. 637 (F.C.) — referred to Rabang v. Canada (Minister of Citizenship & Immigration) (1999), 1999 CarswellNat 2569, 176 F.T.R. 314, [1999] F.C.J. No. 1934 (Fed. T.D.) — referred to Rashid v. Canada (Minister of Citizenship & Immigration) (2010), 88 Imm. L.R. (3d) 165, 2010 FC 157, 2010 CarswellNat 318, 364 F.T.R. 170 (Eng.), [2010] F.C.J. No. 183 (F.C.) — considered Sapru v. Canada (Minister of Citizenship & Immigration) (2010), 2010 CF 240, 2010 CarswellNat 2131, 2010 FC 240, 2010 CarswellNat 455, 364 F.T.R. 273 (Eng.), [2010] F.C.J. No. 270 (F.C.) — considered Sklyar v. Canada (Minister of Citizenship & Immigration) (2008), 2008 FC 1226, 2008 CarswellNat 4107, 2008 CarswellNat 5517, 2008 CF 1226, 76 Imm. L.R. (3d) 277 (F.C.) — considered Tong v. Canada (Minister of Citizenship & Immigration) (2009), 2009 CarswellNat 5111, 2009 CarswellNat 5112 (Imm. & Ref. Bd. (App. Div.)) — referred to VIA Rail Canada Inc. v. Canada (National Transportation Agency) (2000), 2000 Car- swellNat 2531, 26 Admin. L.R. (3d) 1, 261 N.R. 184, 193 D.L.R. (4th) 357, [2001] 2 F.C. 25, 2000 CarswellNat 3453, [2000] F.C.J. No. 1685 (Fed. C.A.) — considered Yogeswaran v. Canada (Minister of Citizenship & Immigration) (1997), 129 F.T.R. 151, 1997 CarswellNat 515, F.C.J. No. 462 (Fed. T.D.) — referred to 96 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d)

Za’Rour v. Canada (Minister of Citizenship & Immigration) (2007), 2007 CarswellNat 5394, 321 F.T.R. 120 (Eng.), 2007 CF 1281, 2007 CarswellNat 4279, 2007 FC 1281, [2007] F.C.J. No. 1647, [2007] A.C.F. No. 1647 (F.C.) — referred to Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 11(1) — considered s. 38(1) — considered s. 38(1)(c) — considered s. 72(1) — pursuant to Regulations considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Immigration and Refugee Protection Regulations, SOR/2002-227 s. 1(1) “excessive demand” — considered s. 1(1) “health services” — considered s. 1(1) “social services” — considered

APPLICATION by claimant for judicial review of visa officer’s decision refusing application for permanent residence.

James Russell J.:

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 the decision of the Designated Immigration Officer (Visa Officer) of the Immigration Regional Program Center in Buffalo, New York, dated 31 December 2009 (De- cision), which refused the Applicant’s application for a permanent residence visa on the ground that the Applicant’s health condition “might reasonably be expected to cause excessive demand on [the] health or social services” of Canada.

Background 2 The Applicant is a full-time PhD student in the Electrical and Computer En- gineering program at the University of Connecticut. He is also employed by a private company, with whom he has private health insurance. Although currently resident in the United States, the Applicant applied for permanent residence in Canada under the Federal Skilled Worker Class in December 2007. 3 The Applicant received a renal transplant in 2004. He requires daily immunosuppressive medication. Nonetheless, he says that he is in excellent health and expects to remain so for many years, a claim which is supported by letters from two medical doctors in the U.S. He also says that his health condition poses no impediment to his academic course work and research or to his work with the private company; these claims are supported with letters from his thesis supervi- Chaudhry v. Canada James Russell J. 97

sor as well as his employer. He describes himself as financially stable. He has savings and property in Pakistan in addition to the financial support of his father and brother, both of whom are veterinarians. He intends to purchase a compre- hensive health insurance package, should he be granted a permanent residence visa to Canada. 4 The Visa Officer sent the Applicant a “Fairness Letter” dated 20 February 2009, acknowledging his medical condition and advising him that he must establish a reasonable and workable plan to offset the excessive demand that he would otherwise impose on Canadian health and social services, due to his condition. The Applicant’s 20 March 2009 response stated the above-noted facts: that his condition was stable and that he required neither social services nor assistance. He also forwarded to the Visa Officer the above-mentioned academic, employment and medical letters of support; details of his own financial resources and those of his family; and a signed Declaration of Ability and Intent, in which he promised not to hold the federal or provincial authorities responsible for costs associated with his health. The final two items were submitted as evidence of the Applicant’s plan to offset the excessive demands on health or social services that could result from his medical condition. 5 The Applicant’s visa application was rejected by letter (Refusal Letter) dated 31 December 2009 on the ground that his medical condition might require services, the costs of which would likely exceed the average Canadian per capita costs over five years. This is the Decision under review.

Decision Under Review 6 The Decision consists of a Fairness Letter, the Visa Officer’s CAIPS notes and a copy of the regulatory definitions pertinent to the Applicant’s case. The letter advises the Applicant that he does not meet the requirements for immigration to Canada because his medical condition, Chronic Renal Failure-Post Renal Transplant, could reasonably be expected to require health or social services, the costs of which would likely exceed the average Canadian per capita costs over five years. In other words, the costs would be excessive. An excessive demand is currently defined as an amount greater than $4806 per year. 7 The letter acknowledges the Applicant’s 20 March 2009 submission of additional information, all of which was carefully considered but which did not alter the original assessment presented in the “Fairness Letter” of 20 February 2009. The Visa Officer notes that the Decision is final and reasonable in her view. 8 The CAIPS notes reiterate the Visa Officer’s finding that the Applicant’s 20 March 2009 submissions did not convince her that he would be able to mitigate his medical costs.

Issues 9 The Applicant raises the following issues: 98 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d)

1. Did the Visa Officer fail to provide adequate reasons for her Decision and thereby breach the principles of procedural fairness? 2. Did the Visa Officer err in failing to conduct an individualized assessment of whether the Applicant’s health condition might reasonably be expected to cause excessive demand on Canadian health or social services?

Statutory Provisions 10 The following provisions of the Act are applicable in these proceedings: Application before entering Canada 11. (1) A foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the regulations. The visa or document may be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act. ... Health grounds 38. (1) A foreign national is inadmissible on health grounds if their health condition (a) is likely to be a danger to public health; (b) is likely to be a danger to public safety; or (c) might reasonably be expected to cause excessive demand on health or social services. Visa et documents 11. (1) L’étranger doit, préalablement a` son entrée au Canada, demander a` l’agent les visa et autres documents requis par règlement. L’agent peut les délivrer sur preuve, a` la suite d’un contrôle, que l’étranger n’est pas interdit de territoire et se conforme a` la présente loi. ... Motifs sanitaires 38. (1) Emporte, sauf pour le résident permanent, interdiction de territoire pour motifs sanitaires l’état de santé de l’étranger constituant vraisemblable- ment un danger pour la santé ou la sécurité publiques ou risquant d’entraˆıner un fardeau excessif pour les services sociaux ou de santé. 11 The following provisions of the Immigration and Refugee Protection Regu- lations, SOR/2002-227, are applicable in these proceedings: Definitions 1. (1) The definitions in this subsection apply in the Act and in these Regulations. [...] Chaudhry v. Canada James Russell J. 99

“excessive demand” « fardeau excessif » “excessive demand” means (a) a demand on health services or social services for which the antici- pated costs would likely exceed average Canadian per capita health services and social services costs over a period of five consecutive years immediately following the most recent medical examination required by these Regulations, unless there is evidence that significant costs are likely to be incurred beyond that period, in which case the period is no more than 10 consecutive years; or (b) a demand on health services or social services that would add to ex- isting waiting lists and would increase the rate of mortality and mor- bidity in Canada as a result of an inability to provide timely services to Canadian citizens or permanent residents. [...] “health services” « services de santé » “health services” means any health services for which the majority of the funds are contributed by governments, including the services of family physicians, medical specialists, nurses, chiropractors and physiotherapists, labo- ratory services and the supply of pharmaceutical or hospital care. “social services” « services sociaux » “social services” means any social services, such as home care, specialized residence and residential services, special education services, social and vo- cational rehabilitation services, personal support services and the provision of devices related to those services, (a) that are intended to assist a person in functioning physically, emo- tionally, socially, psychologically or vocationally; and (b) for which the majority of the funding, including funding that provides direct or indirect financial support to an assisted person, is contributed by governments, either directly or through publicly- funded agencies. Définitions 1. (1) Les définitions qui suivent s’appliquent a` la Loi et au présent règlement. [...] « fardeau excessif » “excessive demand” « fardeau excessif » Se dit: 100 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d)

a) de toute charge pour les services sociaux ou les services de santé dont le coût prévisible dépasse la moyenne, par habitant au Canada, des dépenses pour les services de santé et pour les services sociaux sur une période de cinq années consécutives suivant la plus récente visite médicale exigée par le présent règlement ou, s’il y a lieu de croire que des dépenses importantes devront probablement etreˆ faites après cette période, sur une période d’au plus dix années consécutives; b) de toute charge pour les services sociaux ou les services de santé qui viendrait allonger les listes d’attente actuelles et qui augmenterait le taux de mortalité et de morbidité au Canada vu l’impossibilité d’offrir en temps voulu ces services aux citoyens canadiens ou aux résidents permanents. [...] « services de santé » “health services” « services de santé » Les services de santé dont la majeure partie sont fi- nancés par l’Etat,´ notamment les services des généralistes, des spécialistes, des infirmiers, des chiropraticiens et des physiothérapeutes, les services de laboratoire, la fourniture de médicaments et la prestation de soins hospitaliers. « services sociaux » “social services” « services sociaux » Les services sociaux — tels que les services a` domicile, les services d’hébergement et services en résidence spécialisés, les services d’éducation spécialisés, les services de réadaptation sociale et profession- nelle, les services de soutien personnel, ainsi que la fourniture des appareils liés a` ces services: a) qui, d’une part, sont destinés a` aider la personne sur les plans phy- sique, emotif,´ social, psychologique ou professionnel; b) dont, d’autre part, la majeure partie sont financés par l’Etat´ directe- ment ou par l’intermédiaire d’organismes qu’il finance, notamment au moyen d’un soutien financier direct ou indirect fourni aux particuliers.

Standard of Review 12 The Supreme Court of Canada in New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9 (S.C.C.), 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. Chaudhry v. Canada James Russell J. 101

13 The first issue raised by the Applicant concerns the adequacy of reasons. As held in Canada (Minister of Citizenship & Immigration) v. Charles, 2007 FC 1146 (F.C.) at paragraph 24, citing C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29 (S.C.C.), the adequacy of reasons is an issue of procedural fairness and is reviewable on a standard of correctness. 14 The second issue concerns whether the Visa Officer conducted an individualized assessment. Justice Rosalie Abella in Hilewitz v. Canada (Minister of Citizenship & Immigration), 2005 SCC 57 (S.C.C.) (Hilewitz) at paragraph 57, observed that the “Act calls for individual assessments.” In Sapru v. Canada (Minister of Citizenship & Immigration), 2010 FC 240 (F.C.) at paragraph 16, Justice Richard Mosley of this Court, relying on Hilewitz, stated: “the ... Officer failed to comply with her obligations as set down in Hilewitz. That is an issue of law which should be reviewed on a standard of correctness.” The Visa Officer’s findings of fact with respect to the assessment are reviewable on a standard of reasonableness. See Mazhari v. Canada (Minister of Citizenship & Immigra- tion), 2010 FC 467 (F.C.) at paragraph 9; Barnash v. Canada (Minister of Citizenship & Immigration), 2009 FC 842 (F.C.) at paragraph 20; Jiwanpuri v. Canada (Minister of Employment & Immigration) (1990), 109 N.R. 293 (Fed. C.A.). 15 When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency and intelligi- bility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” See Dunsmuir, above, at paragraph 47. Put another way, the Court should intervene only if the Decision was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.”

Arguments The Applicant Decision Breached Principle of Procedural Fairness 16 In her Fairness Letter, the Visa Officer stated that she had consulted with the Health Management Branch of Citizenship and Immigration and determined that, with respect to social services, the Applicant would need “immunosuppressive medications on a daily basis.” The Refusal Letter states that the Applicant’s medical condition might reasonably be expected to cause excessive demands on health or social services. 17 The Applicant argues that both letters offer the conclusion that the application must be rejected but offer no meaningful explanation as to how that conclusion was reached. There is no analysis regarding how the Applicant’s prescription medication might cause a demand on services, no explanation for the 102 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d)

conclusion that the demand would be excessive, and no explanation as to why the U.S. doctors’ letters and Applicant’s plan to offset the costs of the medication failed to satisfy the Visa Officer’s concerns. The mere statement that the Applicant requires medication in and of itself is not sufficient to explain how the cost of that medication would exceed the average per capita expenditures. 18 The Federal Court of Appeal in VIA Rail Canada Inc. v. Canada (National Transportation Agency) (2000), [2001] 2 F.C. 25 (Fed. C.A.) at paragraph 22, states that “the decision maker must set out its findings of fact and the principal evidence upon which those finds were based.” The reasons should provide a meaningful explanation that makes clear to the applicant why his or her claim has failed. See Ladouceur v. Canada (Attorney General), 2006 FC 1438 (F.C.) at paragraphs 22-27; Ogunfowora v. Canada (Minister of Citizenship & Immi- gration), 2007 FC 471 (F.C.) at paragraph 58. 19 Adequate reasons are an important component of full participation in the decision-making process. They advise the applicant of the case to be met. The Citizenship and Immigration Canada Operational Bulletin 063B (July 29, 2009, section B) states that officers must “ensure the procedural fairness letter explicitly informs the applicant of the required care and social services that are critical to the individual being assessed as medically admissible.” 20 In the instant case, the Fairness and Refusal Letters do not state which social services the Applicants will supposedly require, and they do not assess how the prescription medication might impose an excessive demand on the health care system. In failing to provide adequate reasons, the Visa Officer breached the duty of fairness.

Visa Officer Failed to Provide Individualized Assessment of Excessive Demand 21 Section 38(1)(c) of the Act requires an officer to determine whether an applicant has a health condition that might reasonably be expected to cause excessive demand on health or social services. It is not enough for the officer simply to find that the applicant has a health condition. The officer must conduct an individualized assessment to determine the “repercussions” that each particular applicant’s condition will have on those services. See Brahim c. Canada (Minister of Citizenship & Immigration), 2003 FC 1313 (F.C.) at paragraph 13. 22 Not every demand is excessive, and a “medical officer is not entitled to pre- sume that a particular medical condition or disability must necessarily result in excessive demand.” See Rabang v. Canada (Minister of Citizenship & Immigra- tion), [1999] F.C.J. No. 1934 (Fed. T.D.) at paragraphs 17-18. The Supreme Court of Canada held in Hilewitz, above, at paragraph 56, that an assessment must be carried out for each individual: If the medical officer considers the need for potential services based only on the classification of the impairment rather than on its particular manifesta- tion, the assessment becomes generic rather than individual. It is an approach Chaudhry v. Canada James Russell J. 103

which attaches a cost assessment to the disability rather than to the individual. This in turn results in an automatic exclusion for all individuals with a particular disability, even those whose admission would not cause, or would not reasonably be expected to cause, excessive demands on public funds. 23 An individualized assessment determines the expected costs of the medication based on the applicant’s “unique circumstances and dosage requirements.” See Fallahi v. Canada (Minister of Citizenship & Immigration), 2003 FC 906 (F.C.) at paragraph 7. It takes into account the applicant’s “likely demands on services, not mere eligibility for them.” See Hilewitz, above, at paragraph 54. See also Tong v. Canada (Minister of Citizenship & Immigration) [2009 Car- swellNat 5111 (Imm. & Ref. Bd. (App. Div.))], 29 September 2009, TA7-12458 at paragraphs 24 and 33; and Ashraf v. Canada (Minister of Citizenship & Immi- gration) [2009 CarswellNat 3976 (Imm. & Ref. Bd. (App. Div.))], 19 May 2009, TA7-05863 at paragraph 32. 24 Equally importantly, an individualized assessment considers the “willingness and ability of the applicant or his or her family to pay for the services.” See Hilewitz, above, at paragraphs 55 and 61. Visa officers must consider this factor. See Hossain v. Canada (Minister of Citizenship & Immigration), 2006 FC 475 (F.C.) at paragraph 23. An officer who fails to assess whether an applicant has a viable plan to cover the costs of medication commits an error. See Companioni v. Canada (Minister of Citizenship & Immigration), 2009 FC 1315 (F.C.) (Com- panioni) at paragraph 10. 25 In the instant case, the Visa Officer provided no assessment of whether the costs of the Applicant’s medication would exceed the per capita cost over five years and no assessment of whether the costs would draw on government- funded services. There is no universal government-funded out-patient drug program in Canada, so the officer should not have assumed that the Applicant’s medication would be covered through a publicly-funded drug plan for which the Applicant would be eligible. Further, the Visa Officer did not assess the Appli- cant’s financial plan to enrol in a private health insurance plan to attenuate any excessive demand on Canadian health services. 26 The Applicant submits that, in failing to carry out the appropriate assessment, the Visa Officer made an error of law, which is reviewable on the correctness standard.

The Respondent Visa Officer’s Reasons Were Adequate 27 The Respondent argues that the Visa Officer’s reasons were adequate in the circumstances. If the Applicant believed them to be inadequate, however, he was obligated to request additional information and clarification. In Hayama v. Canada (Minister of Citizenship & Immigration), 2003 FC 1305 (F.C.) (Hayama) at paragraph 15, Justice Edmond Blanchard relied on the Federal 104 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d)

Court of Appeal’s decision in Marine Atlantic Inc. v. C.M.S.G. [2000 Car- swellNat 1574 (Fed. C.A.)], 2000 CanLII 15517 (Marine Atlantic), in concluding as follows: If the applicant was unsatisfied with the decision letter and felt it did not adequately explain the decision, a request should have been made for further elucidation. There is no evidence that such a request would have been refused. I therefore conclude that, in the circumstances of this case, there is no breach of duty of fairness due to an absence of reasons, or inadequacy of reasons. 28 In the alternative, if the Applicant was not obligated to request clarification of reasons, the Respondent submits that the Visa Officer’s reasons were sufficient in that they identified both the source of the concern (namely, “Renal failure — chronic — post renal transplant”) and the nature of the concern (namely, “excessive demand on health services”). Hersi v. Canada (Minister of Citizenship & Immigration) [2000 CarswellNat 2960 (Fed. T.D.)], 2000 CanLII 16671 at paragraph 21. 29 Although the Applicant argues that he was deprived of “meaningful explanations” for how the Visa Officer arrived at her negative conclusions and evalua- tions regarding the letters of support and the plan for payment of medication costs, the Respondent argues that it would be “inappropriate” to demand such detailed reasons from this administrative officer as she is not an adjudicative administrative tribunal. See Cupid v. Canada (Minister of Citizenship & Immi- gration), 2007 FC 176 (F.C.) at paragraph 12. Further, an applicant may successfully challenge the adequacy of reasons only where such inadequacy has prejudiced his or her right of judicial review. That has not been shown here. See Za’Rour v. Canada (Minister of Citizenship & Immigration), 2007 FC 1281 (F.C.). 30 The Respondent contends that the Applicant was advised of which social services he would require in the Visa Officer’s view; a copy of the statutory definitions of “excessive demand,” “health services,” and “social services” was attached to the Visa Officer’s reasons. See Yogeswaran v. Canada (Minister of Citizenship & Immigration) [1997 CarswellNat 515 (Fed. T.D.)], 1997 CanLII 5080 at paragraph 7. 31 The Respondent submits that the Fairness Letter and the Refusal Letter respond to live issues in the case. An appeal based on inadequacy of reasons is available only where the reasons are so deficient as to foreclose meaningful appellate review. That is not the case here.

Visa Officer Conducted Individualized Assessment 32 The Respondent argues that, contrary to the Applicant’s assertions, the Visa Officer did conduct an individualized assessment of his medical status. In her affidavit, dated 26 May 2010, the Visa Officer refers to the Medical Notification Chaudhry v. Canada James Russell J. 105

produced by Dr. Jason Creaghan, the Medical Officer who determined the Ap- plicant’s inadmissibility. The notification identifies the Applicant’s health condition, the medication he was taking and the dosage, as well as the cost per year and the complete coverage that would be available through the provincial drug plan of Prince Edward Island (PEI), where the Applicant was planning to reside. The details of this assessment are confirmed and explained in Dr. Creaghan’s own affidavit, dated 25 May 2010. 33 The Visa Officer also considered the Applicant’s plan to cover the costs of medication, which she found was based on the Applicant’s promise to pay. This Court has recognized such promises as unenforceable. The Applicant, in his argument on this point, has mischaracterized Justice Sean Harrington’s decision in Companioni, above. In that case, the facts of which are similar to those of the instant case, the Court observed that “[p]romises not to access [Ontario’s provincial drug program] are simply not enforceable.” See Companioni, above, at paragraph 10; and Rashid v. Canada (Minister of Citizenship & Immigration), 2010 FC 157 (F.C.) at paragraph 23.

Applicant’s Reply 34 The affidavits of the Visa Officer and the Medical Officer introduce, for the first time, the above-noted information on specific medications, dosages and drug costs, and explain, for the first time, how the officers came to the conclusion that the Applicant’s medication costs might impose an excessive burden on the public purse. 35 The Applicant requests that, in the circumstances of this case, these affidavits be given little or no weight. In Sklyar v. Canada (Minister of Citizenship & Immigration), 2008 FC 1226 (F.C.) at paragraph 11, Justice Michael Phelan advised a cautionary approach to after-the-fact affidavit evidence, which may be offered to buttress inadequate reasons: While there may be instances where the reasons for the decision are properly contained in not only the decision letter and the CAIPS notes but also in an affidavit (see Hayama v. Canada (Minister of Citizenship and Immigration), 2003 FC 1305), the Court is concerned when the evidence submitted post- filing of an application for judicial review attempts to fill in gaps in the record of decision on the very points in issue and does so by adding major elements to the Record. The attempt to supplement the Record must be ap- proached with caution when attempted by either an applicant or a respondent. If admissible, the Court must assess its weight. 36 The Respondent, relying on Hayama, above, and Marine Atlantic, above, argues that the Applicant should have requested clarification if he found the Visa Officer’s reasons to be inadequate. However, the Applicant contends that these cases are distinguishable from the instant case: the requirement for an applicant to request further clarification is not absolute but dependent on the cir- 106 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d)

cumstances of the case. See Kidd v. Greater Toronto Airports Authority, 2004 FC 703 (F.C.) at paragraphs 29-32, aff’d Kidd v. Greater Toronto Airports Au- thority, 2005 FCA 81 (F.C.A.); Marine Atlantic, above, at paragraph 7. In cases of medical admissibility on grounds of excessive demand, such as the instant case, visa officers are expected to provide adequate reasons to allow applicants to respond effectively. 37 The Medical Officer’s affidavit is deficient. With respect to provincial drug coverage in PEI, it fails to identify when the information was obtained, the program for which the Applicant is supposedly eligible and the eligibility criteria. Eligibility for publicly-funded drug plans is not automatic. Moreover, both affidavits fail to deal with the Applicant’s intention to enrol in a private health insurance plan in Canada as he done in the United States.

Respondent’s Further Memorandum 38 The Respondent disputes the Applicant’s submissions regarding the admissibility of the affidavits of the Visa Officer and the Medical Officer. Unlike the impugned affidavits highlighted in the cases cited by the Applicant, these two affidavits are not being used to buttress the Visa Officer’s Decision or to introduce an “entire line of reasoning not reflected anywhere in her notes.” 39 The Visa Officer simply attached to her affidavit the Medical Notification issued by the Medical Officer, which is contained in the Tribunal Record and which informed the Visa Officer’s Decision. 40 The Medical Officer’s affidavit echoes the contents of the Medical Notifica- tion, which addresses the Applicant’s condition, the requisite treatment and its projected costs and the coverage of these costs by the provincial health plan in Prince Edward Island. The affidavit confirms that the Medical Officer considered the opinions of the Applicant’s physicians in the United States and was still not dissuaded from his initial determination of inadmissibility. 41 The Applicant’s Reply demonstrates no error in the Medical Officer’s affidavit. The Applicant suggests that the Medical Officer may not have confirmed that the provincial drug plan would cover the costs of the medication prior to the issuance of the Refusal Letter. This suggestion is without merit. Further, if the Applicant doubted the Medical Officer’s findings with regard to the coverage of the medication, he could have cross-examined him on his affidavit.

Analysis 42 I have reviewed all of the issues raised by the Applicant. I think it is clear that an individualized assessment did take place. The only issue of substance relates to procedural fairness. 43 The Officer provided the Applicant with reasons for the Decision. However, the Applicant now says that more should have been provided. He says that al- Chaudhry v. Canada James Russell J. 107

though “the Officer’s Refusal Letter concludes very generally that the Applicant might cause excessive demand on health or social services, there is no explanation of what actual services the Officer believes the Applicant would require.” The Applicant also complains that the “Refusal Letter also does not assess how any services required by the Applicant can be expected to exceed average Cana- dian per capita costs over 5 years.” 44 The Applicant complains that the Fairness Letter is no better: “[l]ike the Re- fusal Letter, the Fairness Letter presents statements of conclusion, some of which appear to be template phrases copied and repeated more than once.” 45 As for the CAIPS notes, the Applicant says that “there is no meaningful explanation of how the Applicant’s doctors’ letters, proposed plan and financial ability were taken into account, nor any explanation as to why they were not sufficient to alter the finding of medical inadmissibility.” 46 It is clear then, that the Applicant thinks he should have received further details that lay behind the reasons and conclusions provided. He says that it is procedurally unfair that this did not occur. 47 I have reviewed the Fairness Letter and the Applicant’s response. These documents make it clear that the Applicant knew perfectly well what the decisive issue was: drug costs and excessive demands upon the public health system in Canada. He understood this because, in his response, he says that the problem can be overcome and he can make arrangements for a private or group plan that will mean he does not make excessive demands upon the public purse. 48 As Applicant’s counsel conceded at the oral hearing, the real issue in this case was whether procedural unfairness occurred because the Applicant was not provided with the information concerning PEI which had been part of Dr. Creaghan’s assessment. He says that if he had been provided with this information he could have provided a viable plan involving medical insurance and/or he could have directed his application at Ontario, for example, rather than PEI. 49 In my view, this is not a procedural fairness issue. The Fairness Letter and the Applicant’s response make it clear that the reason for the refusal was explained to the Applicant in sufficient detail to allow him to understand why his application was refused. It was then up to the Applicant to take whatever advice he needed and suggest a solution that would avoid an excessive demand upon the public system. The Applicant’s response indicates that he knew this would involve alternative insurance coverage, but he does not say how and where this will be provided. The resolution he comes up with is a suggestion or declaration of intent. It is not a plan. It is inchoate. See Companioni, above, at paragraphs 25 and 30-31. 50 The Officer was not obliged to advise the Applicant that he might wish to consider residing elsewhere than PEI. The Applicant should have sought advice and provided a clear plan that would address the problem of excessive demand. 108 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d)

The Officer could not guess that the Applicant might be willing to go to Ontario or to some other location that would not give rise to the problems that will occur if he goes to PEI. It was the responsibility of the Applicant to review his options and provide a plan that was more than an intention to seek group and/or private insurance. 51 The Applicant did indicate his willingness to enroll in a private health insurance plan in Canada, just as he has done in the United States, but his plans were inchoate. 52 As the Court held in Companioni, above, personal undertakings not to access government programs are not enforceable. 53 In Rashid, above, Justice Mosley quoted Justice John Evans in the Federal Court of Appeal decision in Deol v. Canada (Minister of Citizenship & Immi- gration), 2002 FCA 271 (Fed. C.A.) at paragraph 46, that: [a]s has been held in several previous cases, it is not possible to enforce a personal undertaking to pay for health services that may be required after a person has been admitted to Canada as a permanent resident, if the services are available without payment. 54 I see little difference between a personal promise to pay or to refrain from accessing a government scheme, and a promise to enrol in a private health insurance plan. The Applicant may have no alternative in the United States but to purchase or enroll in such a plan but in Canada, where an alternative government scheme is available, his promise not to use it and to seek private coverage is not enforceable. The Applicant’s reply to the Fairness Letter makes it clear that the Applicant does not understand the public health system in Canada. His attitude with respect to paying for private or group insurance may well change after he arrives here and realizes that he is paying for health coverage that other Canadians receive through the public system. 55 The Applicant is at liberty to re-apply for permanent residence. He now has a full knowledge of what is required. He could have acquired this knowledge earlier if he had sought and taken appropriate advice. I can find no reviewable error in the Decision.

Judgment THIS COURT’S JUDGMENT is that 1. The application is dismissed; 2. There is no question for certification. Dhondup v. Canada (Minister of Citizenship & Immigration) 109

[Indexed as: Dhondup v. Canada (Minister of Citizenship & Immigration)] Sonam Dhondup, Tenzin Yonten and Tenzin Yeshi, Applicants and The Minister of Citizenship and Immigration, Respondent Federal Court D.G. Near J. Heard: January 19, 2011 Judgment: January 31, 2011 Docket: IMM-2104-10, 2011 FC 108 Geraldine Sadoway, for Applicants Michael Butterfield, for Respondent Administrative law –––– Prerogative remedies — Mandamus — Performance of public duty — Conditions precedent to enforcement of duty –––– Applicant made successful refugee claim in Canada and applied to sponsor his family — Minor applicants, two children allegedly from applicant’s prior common-law relationship, were excluded from sponsorship application after DNA test determined them not to be applicant’s biological children — Applicant re-applied to sponsor minor applicants as his de facto dependent children on humanitarian and compassionate grounds in 2004 — Ongoing requests for documentation, including guardianship order, were made by respondent Minister — Applicant attempted to satisfy respondent’s requests but was unable to obtain guardianship order, as Indian court considered applicant to be putative father of minor applicants — In September 2009, applicant requested temporary resident permits (TRPs) for minor applicants pending decision — In 2010, applicant applied for leave and judicial review seeking mandamus order with respect to pending application for immigrant visas and TRPs — Application granted — There was no reason to say applicant failed to meet conditions precedent — Applicant spent five years trying to address respondent’s concerns — There was nothing in record to indicate applicant’s efforts were anything less than noble attempt to comply with respondent’s demands and there were never any inconsistencies that raised suspicion of Respondent’s representatives — At this stage, passage of more time seemed unlikely to cure deficiencies on which respondent was focused. Immigration and citizenship –––– Admission — Application for temporary resident or immigrant visa — Powers and duties of visa or immigration officer –––– Applicant made successful refugee claim in Canada and applied to sponsor his family — Minor applicants, two children allegedly from applicant’s prior common-law relationship, were excluded from sponsorship application as DNA test proved them not to be applicant’s biological children — Applicant re-applied to sponsor minor applicants as his de facto dependent children on humanitarian and compassionate (H&C) grounds in 2004 — Ongoing requests for documentation, including guardianship order, were made by respondent Minister — Applicant made numerous attempts to satisfy respondent’s requests but was unable to obtain guardianship order, as Indian court considered applicant to be putative father of minor applicants — In 2009, applicant requested temporary resident 110 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d) permits (TRPs) for minor applicants pending decision on application — In 2010, applicant applied for leave and judicial review seeking mandamus order with respect to pending application for immigrant visas and TRPs — Leave was granted in October 2010 — Application granted — Requirements of mandamus test were met — Delay was unreasonable in circumstances and was not satisfactorily justified by respondent — Respon- dent gave no reason for disbelieving applicant’s documentation — Court in Canada would likely find applicant was de facto parent of minor applicants, DNA evidence aside — Applicant sought to have decision made based on H&C grounds that would exempt him from specific obligations imposed by statute and respondent — It was paradoxical that respondent refused to issue decision because it lacked specific documentation that decision itself might very well exempt applicant from having to provide. Cases considered by D.G. Near J.: Apotex Inc. v. Canada (Attorney General) (1993), 1993 CarswellNat 820, 1993 Car- swellNat 1357, (sub nom. Apotex Inc. v. Merck & Co.) 69 F.T.R. 152 (note), 51 C.P.R. (3d) 339, 162 N.R. 177, [1994] 1 F.C. 742, 18 Admin. L.R. (2d) 122, [1993] F.C.J. No. 1098 (Fed. C.A.) — followed Apotex Inc. v. Canada (Attorney General) (1994), 29 Admin. L.R. (2d) 1, 59 C.P.R. (3d) 82, 1994 CarswellNat 1402, 1994 CarswellNat 1501, (sub nom. Apotex Inc. v. Merck & Co.) 176 N.R. 1, [1994] 3 S.C.R. 1100, EYB 1994-67302 (S.C.C.) — referred to Conille v. Canada (Minister of Citizenship & Immigration) (1998), [1999] 2 F.C. 33, 1998 CarswellNat 2788, 15 Admin. L.R. (3d) 157, 1998 CarswellNat 2905, (sub nom. Conille v. Canada (Ministre de la Citoyennet´e et de l’Immigration)) 159 F.T.R. 215, [1998] F.C.J. No. 1553 (Fed. T.D.) — followed Dragan v. Canada (Minister of Citizenship & Immigration) (2003), 2003 CFPI 211, [2003] 4 F.C. 189, 2003 CarswellNat 1525, 227 F.T.R. 272, 2003 CarswellNat 467, 2003 FCT 211, 27 Imm. L.R. (3d) 157, 224 D.L.R. (4th) 738, [2003] F.C.J. No. 260 (Fed. T.D.) — followed Dragan v. Canada (Minister of Citizenship & Immigration) (2003), 2003 CarswellNat 1419, 2003 FCA 233, 27 Imm. L.R. (3d) 194, 224 D.L.R. (4th) 764, [2003] F.C.J. No. 813 (Fed. C.A.) — referred to Lee v. Canada (Secretary of State) (1987), 1987 CarswellNat 126, 4 Imm. L.R. (2d) 97, 16 F.T.R. 314, [1987] F.C.J. No. 1130 (Fed. T.D.) — referred to Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 24(1) — pursuant to s. 25(1) — pursuant to s. 72(1) — pursuant to Intercountry Adoption Act, 1998, S.O. 1998, c. 29 Generally — referred to Regulations considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Immigration and Refugee Protection Regulations, SOR/2002-227 s. 117 — referred to Dhondup v. Canada (Minister of Citizenship & Immigration) D.G. Near J. 111

s. 117(1)(g) — referred to

APPLICATION for judicial review of Minister’s failure to render decision on sponsorship application, seeking mandamus order.

D.G. Near J.:

1 This is an application by Sonam Dhondup (the Principal Applicant, PA), Tenzin Yonten and Tenzin Yeshi (together, the Applicants) made pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA), for judicial review of the Respondent Minister’s failure to render a decision with respect to Mr. Dhondup’s application to sponsor his de facto dependent children, the applicants Tenzin Yonten and Tenzin Yeshi, on humanitarian and compassionate (H&C) grounds for permanent residence in Canada. 2 The Applicants request an order for a writ of mandamus requiring the Re- spondent to make a decision regarding the PA, Sonam Dhondup’s, application to sponsor his de facto dependants Tenzin Yonten and Tenzin Yeshi, on H&C grounds pursuant to subsection 25(1) of the IRPA, with the information available before them, and to respond to the PA’s request to issue Temporary Resident Permits (TRP’s) to Tenzin Yonten and Tenzin Yeshi, pursuant to subsection 24(1) of the IRPA. 3 Based on the reasons below, this application is allowed.

I. Background A. Factual Background 4 The PA, Sonam Dhondup, is an ethnic Tibetan who lived in India. He successfully obtained refugee protection in Canada in July 2002. The PA was granted permanent resident status in May 2003 and subsequently attempted to sponsor his spouse, Tsering Paldon, their daughter Tenzin Tselha, as well as his two children from an alleged previous common-law relationship, the minor co- Applicants Tenzin Yonten and Tenzin Yeshi. His previous common-law wife, Pema Bhuti, died in 1995. 5 The PA’s spouse and children attended an interview at the Canadian High Commission (CHC) in India on July 16, 2003. While the Officer was satisfied that there was a bona fide relationship between the PA and his spouse and their child, she had concerns about the parent-child relationship between the PA and the other two children. After the interview, the Applicants received a letter requiring them to undergo DNA testing to confirm their relationship if they wanted to proceed with the application. 6 Much to the alleged surprise of the PA, the results of the DNA test showed that he was not the biological father of the minor co-Applicants. In his affidavit, the PA described this revelation as “incredibly painful” since he had raised 112 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d)

Yonten and Yeshi as his own and had no idea that their deceased mother had any other relationships during their common-law relationship. 7 As a result of the DNA test, the minor co-Applicants were excluded from the PA’s sponsorship application in January 2004. The Applicants received a letter to this effect, advising them that they could nevertheless apply to be considered separately for permanent residence “directly to any Canadian Embassy or Con- sulate outside of Canada”. The PA’s spouse and child were granted permanent resident status in March 2004. The minor co-Applicants were left behind in In- dia in the care of the PA’s brother when the PA’s spouse and child left to join the PA in Canada. 8 In an effort to bring the minor co-Applicants to Canada, the PA resubmitted his application to sponsor Yonten and Yeshi as his de facto dependent children on H&C grounds. This application was submitted to the CHC in New Delhi on April 30, 2004. The application included submissions with respect to H&C considerations, specifically the best interests of the children. 9 On May 31, 2004, by way of letter the CHC informed the PA that the application for Yonten and Yeshi could not be processed because the previous application for sponsorship had been closed after visas were issued to the PA’s spouse and child. On July 29, 2004 the PA filed an application for leave in the Federal Court to commence a judicial review challenging the refusal to process the application. Leave was granted on August 4, 2004. 10 The PA and counsel for the Minister of Citizenship and Immigration (CIC) eventually agreed to settle the matter. The terms of the settlement are found in a letter from Ms. Marinos dated September 16, 2004 and provided that the PA’s application for H&C consideration would be processed by the CHC in Delhi, backdated to the original application date of May 2004. The PA filed a notice of discontinuance on February 10, 2005, and resubmitted a completed application to the Case Processing Centre (CPC) in Mississauga on May 25, 2005. Ms. Marinos advised the PA by way of letter dated February 9, 2005 that in his application the PA should indicate that an H&C request was being made and submit all the information related to the H&C request with the children’s application. 11 It is clear from the written submissions of the parties that it is at this point their understanding of the facts giving rise to this matter diverged. The PA received a letter from the CPC in Mississauga on June 16, 2005 informing him that his application had been forwarded to the CHC in Delhi, and referring to the application he submitted “on behalf of the child you intend to adopt...” The letter further informed the PA that, as a resident of Ontario, he would be subject to the Intercountry Adoption Act and that he would receive more instructions and application kits for his children in the following weeks. The PA claims to have been surprised by this letter, as it seemed to suggest that his application was being processed on the basis that he intended to officially adopt his children. His Dhondup v. Canada (Minister of Citizenship & Immigration) D.G. Near J. 113

intent had always been, and the terms of the settlement agreement provided for, the PA to sponsor his de facto children on H&C grounds. 12 In an effort to clarify the situation, the PA wrote to the CPC in Mississauga to emphasize that the PA’s application to sponsor his de facto children would be processed in New Delhi on H&C grounds, and an exemption from the adoption requirements had therefore been requested. Nevertheless, on July 5, 2005 the PA received a letter from the provincial Ministry of Children and Youth Services, advising the PA that CIC required a “letter of no objection” from the Ministry, and requesting further information. The case assistant who wrote the letter understood that “adoption [was] part of the plan”. The PA responded with a detailed affidavit and again mentioned that he wished to sponsor his de facto dependent children, but would adopt them later in Canada. 13 In October 2005, the PA again claims to have been surprised to receive a letter from the Coordinator for Private and International Adoption for the Minis- try of Children and Youth Services, informing the PA that the adoption of the sponsored children would be subject to certain legislation and so would require the PA to fulfill a number of requirements, including obtaining a home-study report and retaining the services of a licensed adoption agency. 14 According to the affidavit of the PA, throughout 2005 and 2006 the PA still expected that his application would be processed based on H&C considerations and he continued to submit evidence of the relationship between the Applicants. The PA also began to explore whether adopting the children in India would be a viable option. 15 The PA visited his children in India in March of 2006 and attempted, unsuc- cessfully, to request an interview at the CHC in New Delhi to speed up the process. Based on this visit, the PA developed more concerns regarding the wellbeing of his children, and swore an affidavit to this effect which was forwarded to the CHC in New Delhi on June 5, 2006. It was accompanied by submissions regarding the prohibitive cost of adopting children from India. He therefore again requested that his sponsorship be processed on H&C grounds. Correspon- dence with the CPC in Mississauga and the provincial authorities was also included. 16 From the point of view of the Respondent, the PA completed his sponsorship application in 2005 as “children to be adopted in Canada”. The applications for permanent residence in Canada as “children to be adopted in Canada — FC6 category” were received at the CHC in New Delhi on June 24, 2006. Applica- tions filed under this category need to meet several requirements under subsection 117(g) of the Immigration and Refugee Protection Regulations (SOR/2002- 227). 114 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d)

17 Manjit Keshub, an Immigration Officer at the CHC in New Delhi, interviewed the minor co-Applicants along with their paternal uncle on November 16, 2006. 18 The PA received no communication from the CHC in New Delhi, and so sent a letter of inquiry on December 18, 2006, again explaining his situation and reiterating that he could not afford to adopt his children. On January 12, 2007, the PA was sent a letter requesting that he provide, within 180 days, the documents required pursuant to regulation 117 - a guardianship order from a court of competent jurisdiction giving him permission to remove the children from India, a copy of a home study completed in Canada, a Notice of Agreement or No Objection letter from provincial authorities and a No Objection Certificate from the Central Adoption Resource Agency (CARA) in India. 19 The PA believed that the CHC had mistakenly chosen to process his application on the understanding that the PA intended to adopt the minor co-Applicants, and so the PA sent another letter on February 6, 2007 repeating that the PA could not afford to adopt his children and requesting that they be granted immigrant visas as de facto family members on H&C grounds. 20 The only response the PA received was a fax from the CHC on February 27, 2007 responding to the PA’s December 2006 inquiry and requesting the same documents. The Respondent claims to have sent two similar further requests on March 1, 2007 and July 18, 2007 for the same outstanding documents. 21 The PA attempted to obtain the outstanding required documents. He ar- ranged to have a home-study conducted by a social worker from the Ontario Association of Social Workers who agreed to provide her services at a very re- duced cost given the PA’s extenuating circumstances. The PA wrote to the CHC requesting additional details regarding the specific requirements of the study three times, in May, June and July 2007. The June letter also inquired as to whether these requirements implied that the PA’s application was proceeding on an adoption basis as opposed to an H&C basis. The PA received no response. The PA decided to go ahead anyway, and the home study was completed on June 27, 2008. The completed study was sent to the CHC on June 27, 2008 along with updated submissions concerning the best interests of the child. 22 According to the affidavit of Manjit Keshub, the CHC only realized that the PA wanted his application to be assessed on H&C grounds because the he could not afford the $10,000 - $20,000 adoption fee per child following the June 27, 2008 submissions. This is reflected in his Computer Assisted Immigration Processing System (CAIPS) notes as an entry dated July 24, 2008 which reads in part, “sponsor’s counsel, Parkdale Community Legal Services advises that sponsor now wants these two applications to be assessed on H&C grounds...” (emphasis added). The only earlier reference to H&C consideration in the CAIPS was when the file was initiated in June 16, 2005 and states, “counsel has provided a complete submission for special consideration including H&C which Dhondup v. Canada (Minister of Citizenship & Immigration) D.G. Near J. 115

will be forwarded to the v/o”. However, in Mr. Keshub’s affidavit, he makes reference to receiving the June 5, 2006 submissions giving the background of the PA’s applications and a request that the application be processed on H&C grounds, but does not note that this is inconsistent with his stated belief that the PA changed his mind about how he wanted the application to be sponsored in 2008. 23 The PA continued to attempt to fulfill the requirements demanded by the CHC, corresponding with them in August 2008 regarding the outstanding documents, explaining the difficulty he was having acquiring them and again reiterating that the PA wanted to sponsor the children on H&C grounds, and as children he wished to adopt. 24 The PA travelled to India in May 2009 to obtain a guardianship order. His hearing was rescheduled three times before finally taking place June 1, 2009. During the same visit the PA repeatedly visited the CARA to obtain a “No Ob- jection Certificate”. CARA declined to provide such a certificate as neither the PA nor the minor co-Applicants were citizens of India and CARA did not belief itself to have jurisdiction over the matter. The PA eventually got the Deputy Director of CARA to issue a letter saying as much. 25 In July 2009, the PA received the written decision of the Indian court. The court decided that it could not issue the PA a guardianship order because he was found to be in fact and in law the father of the minor co-Applicants since they were born during his marriage to their mother. The judge acknowledged that the PA’s need for guardianship arose in the context of a negative DNA test, but noted that the test results had not been placed on the record, despite the fact that the PA had submitted an affidavit regarding the DNA test. 26 The PA wrote to the CHC in September 2009 including an affidavit sworn by the PA detailing his attempt to obtain a guardianship order and his current concerns regarding the wellbeing of his children, a copy of the letter from CARA and a copy of the court order refusing to grant the PA a guardianship order. The PA requested that the minor co-Applicants be granted TRPs pursuant to subsection 24(1) of IRPA allowing them to await the CHC’s final decision in Canada. 27 In October 2009 the Respondent advised the PA by e-mail that the additional information provided in September 2009 would be reviewed and that a final decision would be rendered in 10- 12 weeks. After receiving no further communication, in December 2009 the PA sent a follow-up letter requesting an update, and reminding the visa officer that the PA had made a formal request for the issuance of TRPs for the minor co-Applicants. Two additional follow-ups were sent in January 2010, each with a second and third formal request for TRPs. 28 By way of letter dated January 11, 2010 the CHC informed the PA that in order to review his application on H&C grounds they required a guardianship 116 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d)

order appointing the PA as the legal guardian. The PA was advised to apply to the court for a guardianship order, this time filing the DNA evidence. The PA responded on January 28, 2010 once again explaining the reason that he was unable to obtain the required order and urging the visa officer to make a decision based on the information available. In this letter, the PA made the third formal request for the TRPs. 29 The PA received no response to his letters, and so sent another follow-up letter to the visa officer in March 2010 including a fourth formal request for TRPs and advising the visa officer that the PA would be filing a mandamus request in the Federal Court if their was no response within seven days. The CHC responded via e-mail April 1, 2010 again asking for the guardianship document that had been requested on January 11, 2010. 30 The PA filed an Application for Leave and for Judicial Review in this Court, following which Mr. Keshub provided his affidavit on behalf of the Minister Respondent. In response to concerns the Immigration Officer raised in his affidavit regarding the non-existence of a death certificate for the minor co-Appli- cants’ mother, the PA prepared a further affidavit and sent this to the CHC on New Delhi on July 23, 2010. Included was another request that the children be granted TRPs. 31 The PA sent further submissions to the CHC in New Delhi in September 2010 emphasizing the risk faced by the children. The PA alleges that as of Feb- ruary 2011, Yonten will require an Indian Registration Certificate in order to have legal status in India. Since his only known parent, the PA, is now a Cana- dian citizen it will be impossible for Yonten to get this document. At that point he will be living in India illegally and will be unable to continue his education. Another request for TRPs was made on October 4, 2010. 32 On October 21, 2010 the Federal Court granted leave on this application. 33 On October 31, 2010 Mr. Keshub responded to the PA, again informing him that the applications were not being processed because the CHC required an order of guardianship. Mr. Keshub indicated that he believed the Indian court erred the first time because the Court only relied upon affidavit evidence for proof the PA’s marriage, which in fact was a common-law relationship. Mr. Keshub informed the PA that he could apply for Minister’s permits for the children, but that they might not be approved since it was clear that he was not the biological father of the minor co-Applicants.

II. Issue 34 The issue to be decided is whether the Applicants are entitled to an order of mandamus with respect to the PA’s pending application for immigrant visas and TRPs for his two de facto dependent children on H&C grounds based on the evidence provided and pursuant to the settlement agreement of 2004. Dhondup v. Canada (Minister of Citizenship & Immigration) D.G. Near J. 117

III. Argument and Analysis 35 Mandamus is a discretionary equitable remedy. For this Court to issue an order in the nature of mandamus, the following criteria, as set out by Justice Joseph Robertson writing for the Federal Court of Appeal in Apotex Inc. v. Canada (Attorney General) (1993), [1994] 1 F.C. 742, [1993] F.C.J. No. 1098 (Fed. C.A.); affirmed [1994] 3 S.C.R. 1100 (S.C.C.) at para 45, must be satisfied: 1. There must be a public legal duty to act... 2. The duty must be owed to the applicant... 3. There is a clear right to performance of that duty, in particular: (a) the applicant has satisfied all conditions precedent giving rise to the duty... (b) there was (i) a prior demand for performance of the duty; (ii) a reasonable time to comply with the demand unless refused outright; and (iii) a subsequent refusal which can be either expressed or implied, e.g. unreasonable delay... 4. Where the duty sought to be enforced is discretionary, the following rules apply: [omitted] 5. No other adequate remedy is available to the applicant... 6. The order sought will be of some practical value or effect... 7. The Court in the exercise of its discretion finds no equitable bar to the relief sought... 8. On a “balance of convenience” an order in the nature of mandamus should (or should not) issue. 36 The Respondent’s submission focused on the third criterion. Specifically, the Respondent submits that the PA has not satisfied all conditions precedent and that the lengthened processing time required by the presence of “special circumstances” is not prima facie unreasonable (Lee v. Canada (Secretary of State) (1987), 16 F.T.R. 314, 4 Imm. L.R. (2d) 97 (Fed. T.D.)).

A. Conditions Precedent 37 The PA submits that there is a clear right to the performance of the duty and that the PA has submitted and re-submitted all documentation requested to the best of his ability and has thus satisfied all conditions precedent giving rise to the duty. 38 The Respondent submits that the PA has failed to provide the Respondent Minister with a death certificate for his former common-law partner, Pema Bhuti, and that without this, the Respondent has no conclusive evidence that the minor co-Applicants’ mother is dead. Given the negative results of the DNA test, and in light of the factual backdrop of this case, the Respondent argues that 118 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d)

it is not unreasonable to require that the PA be designated the legal guardian of the minor co-Applicants. 39 The concern regarding the provision of a death certificate for the PA’s wife was never brought to the PA’s attention until the Respondent’s materials were filed for this application. In response, the PA swore another affidavit explaining why he did not have a death certificate and detailing his brother’s unsuccessful attempts to obtain one from the equivalent of the coroner’s office in New Delhi in the summer of 2010. 40 I understand that the Respondent has concerns regarding the parentage of the minor co-Applicants. In accordance with the legislation and regulations the potential for abuse and child trafficking remains a major concern of the Respon- dent. However, the PA has now spent five years trying to address these concerns. There is nothing in the record to indicate that the PA’s efforts have ever amounted to anything less than a noble attempt to comply with the Respondent’s demands and expedite the arrival of the minor co-Applicants in Canada. From what I can see in the record, there have never been any inconsistencies that raised the suspicion of the representatives of the Respondent. At this stage, the passage of more time seems unlikely to cure the deficiencies on which the Re- spondent remains focused. 41 The Respondent maintains that the PA should re-attempt to obtain a guardianship order from the Indian court - despite the PA’s repeated explanations of how the time and cost of doing so are prohibitive. The PA argued in his most recent submissions that the matter would be considered res judicata by the In- dian court. I am not comfortable expounding on what would or would not be the likely outcome of a second application to an Indian court, but note that at this moment, the PA is considered by the Indian court to be the putative father of the minor co-Applicants. 42 The Respondent seems to be dissatisfied with this finding that the PA is the “biological father” since it has in its hands conclusive evidence that the PA can not possibly be the biological father. Furthermore, the record reveals that the Respondent thinks this decision was arrived at in error since it is based on the belief that the birth of the minor co-Applicants occurred during a marriage between the PA and Pema Bhuti, the existence of which is not proven with the usual kinds of documents. 43 In fact, the order of the court only refers to the PA as the father and not the biological father and the PA has previously sworn to the specifics of the relationship he had with the mother of the minor co-Applicants and her subsequent death. In the initial application in 2003 the PA provided the Respondent with the birth certificates and school documents of the minor co-Applicants in which he is described as their father. Dhondup v. Canada (Minister of Citizenship & Immigration) D.G. Near J. 119

44 I can see no reason to say that the PA has failed to meet the conditions precedent, especially when the PA asked the Respondent to make a decision based on the material available, and the Respondent assented, estimating that a decision would be arrived at in 10-12 weeks from October of 2009.

B. Unreasonable Delay 45 Three requirements must be met in order for a delay to be considered unreasonable: (1) the delay in question must have been longer than the nature of the process required, prima facie; (2) the applicant and his counsel must not be responsible for the delay; and (3) the authority responsible for the delay must not have provided a satisfactory justification (Conille v. Canada (Minister of Citizenship & Immigration) (1998), [1999] 2 F.C. 33, 159 F.T.R. 215 (Fed. T.D.) at para 23. In this case, I am satisfied that the PA has satisfied all three criteria. 46 The Respondent submits that what is important in the case of permanent resident visas is not whether the Respondent has explained a lengthened processing period, but whether the record as a whole gives a preliminary indication of special circumstances. I can agree that there are special circumstances in this case, but as I think I have made clear already, the delay has been longer than these circumstances required and has not been satisfactorily justified in these proceedings by the Respondent. 47 Each demand for mandamus turns on its own particular set of facts. As Jus- tice Michael Kelen wrote in Dragan v. Canada (Minister of Citizenship & Immi- gration), [2003] 4 F.C. 189 (Fed. T.D.), affirmed 2003 FCA 233 (Fed. C.A.): [...] What period of time would be considered too long to process an immigration file? In Bhatnager, supra, the delay was four and a half years; in Dee, supra, and in Bouhaik, supra, about four years; in Conille, supra, and in Platonov, supra, about three years. All those delays were considered unreasonable on the facts. The holdings did not, in the words of Strayer J. in Bhatnager, supra. at page 317, “fix any uniform length of time as being the limit of what is reasonable.” Justice MacKay in Platonov, supra, also expressly cautioned against such an approach at paragraph 10: Each case turns upon its own facts, and I am not persuaded that the jurisprudence in relation to this matter is particularly helpful, except to outline some parameters within which the Court has issued an order in the nature of mandamus where it has found there has been unusual delay which is not reasonably explained. 48 As the PA argues, the six-year plus delay has been much longer than the one to two year processing time estimated by the Respondent for an H&C application. Mr. Keshub sent the PA a letter in October 2009 stating that a decision would be made in 10-12 weeks. However, an April 2010 e-mail from Mr. Keshub made it clear that a decision had still not been made. 120 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d)

49 The Respondent submits that the lengthened processing time has been neces- sitated by the failure of the PA to provide sufficient evidence to establish that he has the legal authority to bring the minor co-Applicants to Canada. However, more than six years since the initial application, more than two years since the Respondent re-realized that the application was to be processed on H&C grounds, a misunderstanding the Respondent makes no attempt to explain, an ample amount of time and correspondence has ensued in which the Respondent ought to have at least raised the issue on which the he now relies to explain the delay. Despite the suggestion in the Respondent’s written submission, I will not be able to deny this application on the basis that the question of whether or not Pema Bhuti is actually dead has yet to be definitively answered. 50 The PA has submitted and re-submitted evidence. No reason has been given for disbelieving any of the supported documentation. The Indian court considers him the putative father of the minor co-Applicants. I share the PA’s view that based on the evidence, a court in Canada would likely also find that the PA is the de facto parent of the minor co-Applicants, responsible for their care and support, DNA evidence aside. 51 The delay has become unreasonable. 52 The Respondent does not seem to contest, and I find, that all of the other requirements of the mandamus test are met. 53 The PA currently finds himself in a Kafkaesque state of limbo. It is unreasonable for the Respondent to expect the PA to wait any longer for a decision. The PA is asking for a decision to be made based on H&C considerations that would exempt him from specific obligations imposed by IRPA and presently imposed by the Respondent. It is paradoxical that the Respondent refuses to issue a decision because it lacks specific documentation that the decision itself might very well exempt the PA from having to provide.

IV. Conclusion 54 In consideration of the above conclusions, this application for judicial review is allowed. The Respondent is ordered to make a decision within 30 days. 55 No question to be certified was proposed and none arises.

Judgment THIS COURT’S JUDGMENT is that this application for judicial review is allowed. The Respondent if ordered to make a decision within 20 days. Application granted. Hao v. Canada 121

[Indexed as: Hao v. Canada (Minister of Citizenship & Immigration)] Tingmei Hao, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Richard G. Mosley J. Heard: November 9, 2010 Judgment: January 28, 2011 Docket: T-1073-10, 2011 FC 46 Aleksander Stojicevic, for Applicant Hilla Aharon, for Respondent Immigration and citizenship –––– Citizenship — Grant of citizenship — Require- ments for grant of citizenship — Residence in Canada — General principles –––– Applicant, citizen of China, arrived in Canada with her parents as permanent resident on February 3, 2003 — In subsequent six years, applicant was repeatedly absent from Can- ada for prolonged periods of time — Applicant finished high school in her home town in China, returned to Canada to pursue post-secondary education, and applied for citizenship on January 3, 2009 — Hearing was conducted before citizenship judge — Citizen- ship judge refused applicant’s application for citizenship on May 18, 2010 — Applicant appealed — Appeal dismissed — Underlying decision was not unreasonable — Citizen- ship judge carefully considered facts of application and wrote thorough reasons for decision — Citizenship judge took care in interviewing applicant to explore her attachment to Canada and her reasons for her absences during four-year period prior to application — This was not case where residency had been established and application of physical presence test was unreasonable. Administrative law –––– Standard of review — Miscellaneous –––– Revised standard of review — Reasonableness — Applicant, citizen of China, arrived in Canada with her parents as permanent resident on February 3, 2003 — In subsequent six years, applicant was repeatedly absent from Canada for prolonged periods of time — Applicant finished high school in her home town in China, returned to Canada to pursue post-secondary education, and applied for citizenship on January 3, 2009 — Hearing was conducted before citizenship judge — Citizenship judge refused applicant’s application for citizenship on May 18, 2010 — Applicant appealed — Appeal dismissed — Citizenship judge’s decision called for application of reasonableness standard — Citizenship judge’s decision was not unreasonable — Question at issue was not one of general law that was of central importance to legal system as whole and outside adjudicator’s specialized area of expertise — Combination of expert tribunal and question of law within tribunal’s expected range of expertise resulted in deference. Immigration and citizenship –––– Citizenship — Application for grant of or retention of citizenship — Appeals — General principles. 122 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d)

Cases considered by Richard G. Mosley J.: Abbott Laboratories v. Canada (Minister of Health) (2006), 2006 CF 120, 2006 Car- swellNat 1679, [2006] 4 F.C.R. 41, 2006 FC 120, 2006 CarswellNat 375, 53 C.P.R. (4th) 207, 286 F.T.R. 281 (Eng.), [2006] F.C.J. No. 256 (F.C.) — considered Abbott Laboratories v. Canada (Minister of Health) (2007), 2007 CAF 73, 2007 Car- swellNat 1601, 361 N.R. 90, 2007 FCA 73, 2007 CarswellNat 374, 59 C.P.R. (4th) 42, [2007] F.C.J. No. 233 (F.C.A.) — referred to ATCO Gas & Pipelines Ltd. v. Alberta (Energy & Utilities Board) (2006), 263 D.L.R. (4th) 193, 344 N.R. 293, 39 Admin. L.R. (4th) 159, 380 A.R. 1, 363 W.A.C. 1, 2006 CarswellAlta 139, 2006 CarswellAlta 140, 2006 SCC 4, 54 Alta. L.R. (4th) 1, [2006] 5 W.W.R. 1, [2006] 1 S.C.R. 140, [2006] S.C.J. No. 4 (S.C.C.) — considered British Columbia Telephone Co. v. Shaw Cable Systems (B.C.) Ltd. (1995), 1995 Car- swellNat 705, 1995 CarswellNat 968, [1995] 2 S.C.R. 739, 31 Admin. L.R. (2d) 169, 125 D.L.R. (4th) 443, 183 N.R. 184, EYB 1995-80079, [1995] S.C.J. No. 54 (S.C.C.) — referred to Canada (Attorney General) v. Mowat (2009), 4 Admin. L.R. (5th) 192, 67 C.H.R.R. D/381, 2009 CAF 309, 2009 CarswellNat 5063, 395 N.R. 52, 2010 C.L.L.C. 230- 017, 312 D.L.R. (4th) 294, 2009 CarswellNat 3405, 2009 FCA 309, [2009] F.C.J. No. 1359 (F.C.A.) — referred to Canada (Minister of Citizenship & Immigration) v. Alonso Cobos (2010), 92 Imm. L.R. (3d) 61, 2010 CarswellNat 3354, 2010 FC 903, 2010 CarswellNat 4654, 2010 CF 903 (F.C.) — referred to Canada (Minister of Citizenship & Immigration) v. Elzubair (2010), 2010 CarswellNat 3030, 2010 CF 298, 2010 CarswellNat 573, 2010 FC 298, [2010] F.C.J. No. 330 (F.C.) — referred to Canada (Minister of Citizenship & Immigration) v. Jeizan (2010), 2010 CarswellNat 2159, 2010 CF 323, 2010 FC 323, 2010 CarswellNat 633 (F.C.) — referred to Canada (Minister of Citizenship & Immigration) v. Manas (2010), 92 Imm. L.R. (3d) 211, 2010 FC 1056, 2010 CarswellNat 4024, 2010 CarswellNat 4677, 2010 CF 1056 (F.C.) — considered Canada (Minister of Citizenship & Immigration) v. Nandre (2003), 2003 CFPI 650, 2003 CarswellNat 2797, 2003 CarswellNat 1509, 2003 FCT 650, 234 F.T.R. 245, [2003] F.C.J. No. 841 (Fed. T.D.) — followed Canada (Minister of Citizenship & Immigration) v. Ryan (2009), 2009 CarswellNat 5506, 2009 CF 1159, 2009 CarswellNat 4206, 2009 FC 1159 (F.C.) — followed Canada (Minister of Citizenship & Immigration) v. Salim (2010), 2010 CarswellNat 5171, 92 Imm. L.R. (3d) 196, 2010 CF 975, 2010 CarswellNat 3654, 2010 FC 975, [2010] F.C.J. No. 1219 (F.C.) — referred to Canada (Minister of Citizenship & Immigration) v. Wall (2005), 2005 CarswellNat 274, 2005 FC 110, 45 Imm. L.R. (3d) 32, 2005 CF 110, 2005 CarswellNat 4367, 271 F.T.R. 146, [2005] F.C.J. No. 146 (F.C.) — referred to Canada (Minister of Citizenship & Immigration) v. Wang (2009), 360 F.T.R. 1 (Eng.), 2009 CarswellNat 4391, 2009 FC 1290, 2009 CF 1290, 87 Imm. L.R. (3d) 184, 2009 CarswellNat 5286 (F.C.) — considered Canada (Minister of Citizenship & Immigration) v. Zhou (2008), 2008 CarswellNat 2739, 2008 FC 939, 2008 CF 939, 2008 CarswellNat 4645, [2008] F.C.J. No. 1170 (F.C.) — referred to Hao v. Canada 123

Canada (Ministre de la Citoyenneté & de l’Immigration) c. Abou-Zahra (2010), 2010 CF 1073, 2010 CarswellNat 4088, 2010 CarswellNat 4678, 2010 FC 1073 (F.C.) — referred to Canada (Ministre de la Citoyenneté & de l’Immigration) c. Ntilivamunda (2008), 2008 FC 1081, 2008 CarswellNat 4549, (sub nom. Canada (Minister of Citizenship & Immigration) v. Ntilivamunda) 302 D.L.R. (4th) 345, 2008 CF 1081, 2008 Car- swellNat 3544, [2008] F.C.J. No. 1365 (F.C.) — referred to Canada (Ministre de la Citoyenneté & de l’Immigration) c. Takla (2009), 2009 Car- swellNat 3741, 2009 FC 1120, (sub nom. Canada (Minister of Citizenship and Immigration v. Takla) 359 F.T.R. 248 (Eng.), 2009 CarswellNat 4777, 2009 CF 1120, [2009] F.C.J. No. 1371 (F.C.) — considered Canada (Ministre de la Citoyenneté & de l’Immigration) c. Tovbin (2000), 2000 Car- swellNat 766, 2000 CarswellNat 3154, 10 Imm. L.R. (3d) 306, (sub nom. Canada (Ministre de la Citoyenneté & de l’Immigration) v. Tovbin) 190 F.T.R. 102, [2000] F.C.J. No. 527 (Fed. T.D.) — considered Cardin v. Canada (Minister of Citizenship & Immigration) (2011), 2011 CarswellNat 91, 2011 FC 29 (F.C.) — considered Chapman v. Minister of National Revenue (2002), 2002 FCT 655, 2002 CarswellNat 1496, [2002] 3 C.T.C. 563, 2002 D.T.C. 7148, [2002] G.S.T.C. 80, 2002 CarswellNat 2579, 221 F.T.R. 126, [2002] F.C.J. No. 960 (Fed. T.D.) — referred to Chen v. Canada (Minister of Citizenship & Immigration) (2001), 213 F.T.R. 137, 2001 FCT 1229, 2001 CarswellNat 2518, 17 Imm. L.R. (3d) 222, [2001] F.C.J. No. 1693 (Fed. T.D.) — considered Chen v. Canada (Minister of Citizenship & Immigration) (2006), 2006 FC 85, 2006 Car- swellNat 195, [2006] F.C.J. No. 119 (F.C.) — followed Dachan v. Canada (Minister of Citizenship & Immigration) (2010), 2010 FC 538, 2010 CarswellNat 1435, 2010 CF 538, 2010 CarswellNat 2442 (F.C.) — considered Dedaj v. Canada (Minister of Citizenship & Immigration) (2010), 2010 CarswellNat 3105, 2010 CF 777, 90 Imm. L.R. (3d) 138, 2010 FC 777, 2010 CarswellNat 2485 (F.C.) — considered Domtar Inc. c. Québec (Commission d’appel en matière de lésions professionnelles) (1993), 15 Admin. L.R. (2d) 1, 49 C.C.E.L. 1, 154 N.R. 104, (sub nom. Domtar Inc. v. Québec (Commission d’appel en matière de lésions professionnelles)) [1993] 2 S.C.R. 756, (sub nom. Domtar Inc. v. Québec (Commission d’appel en matière de lésions professionnelles)) 55 Q.A.C. 241, (sub nom. Domtar Inc. v. Québec (Commission d’appel en matière de lésions professionnelles)) 105 D.L.R. (4th) 385, 1993 CarswellQue 145, 1993 CarswellQue 159, [1993] C.A.L.P. 613, EYB 1993- 67877, [1993] A.C.S. No. 75, [1993] S.C.J. No. 75 (S.C.C.) — referred to Essex (County) Roman Catholic Separate School Board v. O.E.C.T.A. (2001), 2001 Cars- wellOnt 3116, 205 D.L.R. (4th) 700, (sub nom. Essex County Roman Catholic School Board (The Windsor-Essex Catholic School Board) v. Ontario English Catholic Teachers’ Assn.) 56 O.R. (3d) 85, (sub nom. Board of Education (Roman Catholic) of Essex v. Ontario English Catholic Teachers’ Assn.) 150 O.A.C. 2, 38 Admin. L.R. (3d) 166, [2001] O.J. No. 3602 (Ont. C.A.) — referred to Ghaedi v. Canada (Minister of Citizenship & Immigration) (2011), 2011 CarswellNat 147, 2011 FC 85 (F.C.) — considered 124 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d)

Harry, Re (1998), 1998 CarswellNat 294, 144 F.T.R. 141, [1998] F.C.J. No. 189 (Fed. T.D.) — considered Hydro Ottawa Ltd. v. I.B.E.W., Local 636 (2007), 281 D.L.R. (4th) 443, 2007 C.L.L.C. 220-051, 2007 ONCA 292, 2007 CarswellOnt 2209, (sub nom. Hydro Ottawa Ltd. v. International Brotherhood of Electrical Workers, Local 636) 223 O.A.C. 114, 161 L.A.C. (4th) 312, 85 O.R. (3d) 727, [2007] O.J. No. 1424 (Ont. C.A.) — referred to Investment Dealers Assn. of Canada v. Taub (2009), 255 O.A.C. 126, 2009 ONCA 628, 2009 CarswellOnt 5033, (sub nom. Taub v. Investment Dealers Assn. of Canada) 98 O.R. (3d) 169, (sub nom. Taub v. Investment Dealers Assn. of Canada) 311 D.L.R. (4th) 389, [2009] O.J. No. 3552 (Ont. C.A.) — considered Koo, Re (1992), 19 Imm. L.R. (2d) 1, [1993] 1 F.C. 286, 59 F.T.R. 27, 1992 CarswellNat 83, 1992 CarswellNat 621, [1992] F.C.J. No. 1107 (Fed. T.D.) — followed Lam v. Canada (Minister of Citizenship & Immigration) (1999), 1999 CarswellNat 489, 164 F.T.R. 177, [1999] F.C.J. No. 410 (Fed. T.D.) — considered Lin v. Canada (Minister of Citizenship & Immigration) (2002), 2002 CFPI 346, 2002 CarswellNat 2323, 21 Imm. L.R. (3d) 104, 2002 CarswellNat 777, 2002 FCT 346, [2002] F.C.J. No. 492 (Fed. T.D.) — considered National Steel Car Ltd. v. U.S.W.A., Local 7135 (2006), 159 L.A.C. (4th) 281, 278 D.L.R. (4th) 345, 2006 CarswellOnt 7720, 218 Q.A.C. 207, [2006] O.J. No. 4868 (Ont. C.A.) — referred to New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Bruns- wick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — followed Novaquest Finishing Inc. v. Abdoulrab (2009), 2009 CarswellOnt 3474, 2009 ONCA 491, (sub nom. Abdoulrab v. OLRB) 2009 C.L.L.C. 210-033, (sub nom. Abdoulrab v. Ontario (Labour Relations Board)) 251 O.A.C. 28, (sub nom. Abdoulrab v. Ontario (Labour Relations Board)) 95 O.R. (3d) 641, 95 Admin. L.R. (4th) 121, [2009] O.L.R.B. Rep. 480, [2009] O.J. No. 2524 (Ont. C.A.) — considered Ottawa Police Assn. v. Ottawa Police Services Board (2008), 2008 CarswellOnt 355, 2008 C.L.L.C. 220-016, (sub nom. Ottawa Police Association v. Ottawa Police Services Board) 233 O.A.C. 51 (Ont. Div. Ct.) — referred to Papadogiorgakis, Re (1978), 1978 CarswellNat 23, [1978] 2 F.C. 208, 88 D.L.R. (3d) 243, 1978 CarswellNat 23F, [1978] F.C.J. No. 31 (Fed. T.D.) — considered Pourghasemi, Re (1993), 1993 CarswellNat 77, 19 Imm. L.R. (2d) 259, 62 F.T.R. 122, [1993] F.C.J. No. 232 (Fed. T.D.) — followed Pourzand v. Canada (Minister of Citizenship & Immigration) (2008), 2008 CF 395, 2008 CarswellNat 1860, 2008 CarswellNat 831, 2008 FC 395, 71 Imm. L.R. (3d) 289, [2008] F.C.J. No. 485 (F.C.) — followed Sarvarian v. Canada (Minister of Citizenship & Immigration) (2010), 2010 CarswellNat 5047, 2010 CF 1117, 2010 FC 1117, 2010 CarswellNat 4364 (F.C.) — considered Hao v. Canada Richard G. Mosley J. 125

Shubeilat c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2010), 2010 FC 1260, 2010 CarswellNat 5401, 2010 CF 1260, 2010 CarswellNat 4874 (F.C.) — considered Statutes considered: Canadian Human Rights Act, R.S.C. 1985, c. H-6 Generally — referred to Citizenship Act, R.S.C. 1985, c. C-29 s. 5(1)(c) — considered s. 5(4) — considered s. 14(5) — pursuant to s. 15(1) — considered Rules considered: Federal Courts Rules, SOR/98-106 Generally — referred to R. 300(c) — considered

APPEAL by applicant from decision refusing her application for citizenship in Canada.

Richard G. Mosley J.:

1 The issue in this case is whether, in considering an application for Canadian citizenship, the Citizenship Judge erred in applying one of several tests for determining the residency requirements that have been previously approved by this Court. Recently, some judges of this Court have adopted the view that just one of these tests should prevail. This would, undoubtedly, avoid inconsistency in the administration of the statute. Should an appeal from the Citizenship Judge’s decision be granted when the judge chose to apply one test over another and the decision is not otherwise unreasonable?

Background 2 This is an appeal pursuant to section 14(5) of the Citizenship Act, R.S.C. 1985, c. C-29 of the decision made on May 18, 2010 by Citizenship Judge, Rob- ert D. Watt, refusing the applicant’s application for citizenship. Such appeals proceed by way of application based on the record before the citizenship judge and are governed by the Federal Courts Rules pertaining to applications: Rule 300 (c); Canada (Minister of Citizenship & Immigration) v. Wang, 2009 FC 1290, 87 Imm. L.R. (3d) 184 (F.C.). There are no further appeals from decisions of this Court. If the matter is not sent back for redetermination, an unsuccessful applicant who meets the statutory criteria may reapply. 3 The applicant, a citizen of China, arrived in Canada with her parents as a permanent resident on February 3, 2003 when she was 13 years of age. In the subsequent six years, she was repeatedly absent from Canada for prolonged peri- 126 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d)

ods of time, the first beginning just 17 days after her arrival. During her absences, the applicant visited relatives and attended high school in China. She attended a secondary school in Vancouver, BC from September 2004 through October 2006 and completed grades 10 and 11 there. For much of 2007, the applicant was in China. During that time she finished high school in her hometown of Tianjin. Returning to Canada, she pursued post-secondary education and applied for citizenship on January 3, 2009. A hearing was conducted before the Citizenship Judge on March 31, 2010. The applicant was informed of the judge’s decision and reasons in a letter dated May 18, 2010.

Decision Under Appeal: 4 The Citizenship Judge used the period between January 3, 2005 and January 3, 2009 to calculate the applicant’s residency in Canada. 5 The Citizenship Judge noted that he relied on the analytical approach of Jus- tice Francis Muldoon in Pourghasemi, Re (1993), 62 F.T.R. 122, 19 Imm. L.R. (2d) 259 (Fed. T.D.), in which it was deemed necessary for a potential citizen to establish that he or she has been physically present in the country for a total of 1095 days during the four years preceding the application for citizenship. 6 The Citizenship Judge calculated that the application showed a presence in Canada of 972 days with a shortfall of 123 days from the 1095 that would amount to three of the preceding four years. He concluded that the applicant’s frequent travel to China to visit family, including a terminally ill grandfather, or to undertake and complete high school studies, prevented the applicant from meeting the minimum requirement for physical presence in Canada. He therefore concluded that Ms. Hao did not meet the requirements for citizenship as stipulated in paragraph 5(1)(c) of the Citizenship Act. 7 Citizenship Judge Watt considered that the object and purpose of paragraph 5(1)(c), as discussed in Pourghasemi, is to ensure that individuals seeking citizenship become “Canadianized” by “rubbing elbows” with Canadians in the normal routine of everyday living. Being present in the country for this period of time would allow the applicant to observe and grow accustomed to Canadian society and to its values. Not to have such experiences would effectively allow a person “who is still a foreigner in experience, social adaptation, and often in thought and outlook” to be granted citizenship. 8 On the information available to him, the Citizenship Judge also determined that this was not a case to make a favourable recommendation for a discretionary grant of citizenship under subsections 5(4) and 15(1) of the Act. In his view, there were “inadequate circumstances of special and unusual hardship or services of an exceptional value to Canada” to warrant such a recommendation. This discretionary determination was not challenged on this application. Hao v. Canada Richard G. Mosley J. 127

Issue: 9 As noted above, the sole issue on this application, apart from the question of costs, is as follows: Is there one correct test to be used by a citizenship judge in determining whether the applicant met the residence requirement under subsection 5(1)(c) of the Citizenship Act?

Relevant Statutory Provisons: 10 Section 5(1)(c) sets out the method of calculating the length of residence, for permanent residents seeking citizenship, but does not define the term: Grant of citizenship 5. (1) The Minister shall grant citizenship to any person who [...] (c) is a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, and has, within the four years immediately preceding the date of his or her application, accumulated at least three years of residence in Canada calculated in the following manner: (i) for every day during which the person was resident in Can- ada before his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one-half of a day of residence, and (ii) for every day during which the person was resident in Can- ada after his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one day of residence Attribution de la citoyenneté 5. (1) Le ministre attribue la citoyenneté a` toute personne qui, a` la fois: [...] c) est un résident permanent au sens du paragraphe 2(1) de la Loi sur l’immigration et la protection des réfugiés et a, dans les quatre ans qui ont précédé la date de sa demande, résidé au Canada pendant au moins trois ans en tout, la durée de sa résidence etant´ calculée de la manière suivante: (i) un demi-jour pour chaque jour de résidence au Canada avant son admission a` titre de résident permanent, (ii) un jour pour chaque jour de résidence au Canada après son admission a` titre de résident permanent 128 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d)

Analysis: 11 The parties agree that the overall standard of review to be applied in an appeal from a citizenship decision is reasonableness. The weight of Federal Court jurisprudence, both prior to and subsequent to the decision of the Supreme Court of Canada in New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190 (S.C.C.), supports that conclusion. See for example: Chen v. Canada (Minister of Citizenship & Immigration), 2006 FC 85 (F.C.) at para. 6; Canada (Minister of Citizenship & Immigration) v. Ryan, 2009 FC 1159 (F.C.) at paras. 13-16. 12 Justice James Russell described the consensus in Pourzand v. Canada (Minister of Citizenship & Immigration), 2008 FC 395, 71 Imm. L.R. (3d) 289 (F.C.) at paras. 19-20: [19] There has been general consensus in the jurisprudence of this Court that the applicable standard of review for a citizenship judge’s determination of whether an applicant meets the residency requirement, which is a question of mixed fact and law, is reasonableness simpliciter (Canada (Minister of Citi- zenship and Immigration) v. Chang, 2003 FC 1472; Rizvi v. Canada (Min- ister of Citizenship and Immigration), 2005 FC 1641; Chen v. Canada (Min- ister of Citizenship and Immigration), 2006 FC 85; Zhao v. Canada (Minister of Citizenship and Immigration), 2006 FC 1536). In light of the Supreme Court of Canada’s recent decision in Dunsmuir v. New Brunswick, 2008 SCC 9 [Dunsmuir], wherein the Court collapsed this standard and the patent unreasonableness standards into one standard of reasonableness, I find that the applicable standard of review as regards the Citizenship Judge’s determination of whether the Applicant met the residency requirement is reasonableness. [20] With respect to the alleged factual errors, a number of pre-Dunsmuir authorities from this Court held that the patent unreasonableness standard was to be applied to a citizenship judge’s findings of fact. Considerable deference is owed to citizenship judges’ findings of fact, as they have access to the original documents and an opportunity to discuss the relevant facts with the applicant. Thus, applying Dunsmuir, these findings are also reviewable on a reasonableness standard. I note, however, that even if the patent unreasonableness standard had been applied when reviewing the Citizenship Judge’s findings of fact in the present case, my findings would have been the same. 13 While there has been and continues to be general agreement that the standard of review of a citizenship decision is reasonableness, judges of this Court have disagreed as to how the residency requirement was to be interpreted. This stems in part from the fact that the Federal Courts Rules formerly required that these appeals be heard de novo rather than by application. Thus, it was necessary, prior to changes in the Rules, for a judge of this Court hearing an appeal from a citizenship judge’s decision to make a fresh determination as to whether the statutory requirements had been met by the claimant. In so doing, the Court had to Hao v. Canada Richard G. Mosley J. 129

determine what was meant by “resident” (“r´esidence”) in paragraph 5(1)(c) of the Act. With the change in the Rules to treat these appeals as applications, to set aside a decision of a citizenship judge requires a finding of reviewable error: Canada (Ministre de la Citoyennet´e & de l’Immigration) c. Tovbin (2000), 10 Imm. L.R. (3d) 306, 190 F.T.R. 102 (Fed. T.D.). 14 The interpretation of the residency requirement which may be described as the most generous to an applicant who has not been physically present in Can- ada for three of the preceding four years is that exemplified by Associate Chief Justice Arthur Thurlow’s decision in Papadogiorgakis, Re, [1978] 2 F.C. 208 (Fed. T.D.). There it was held that a person with an established home in Canada can leave for extended periods and still be regarded as a resident of Canada. In Associate Chief Justice Thurlow’s opinion, the question to be determined is whether the person has centralized his or her mode of living in Canada through social relations and other interests. It is the quality of the attachment to Canada, rather than the number of days actually spent here, that is important to those who subscribe to this view. 15 A narrower interpretation of the legislation is reflected in Justice Muldoon’s decisions in Pourghasemi, Re, above, and Harry, Re (1998), 144 F.T.R. 141, 77 A.C.W.S. (3d) 933 (Fed. T.D.). Justice Muldoon held that the wording of the Act is clear. It requires a physical presence in Canada for three years in the four years prior to the application. Justice Muldoon felt strongly that the Court should not adopt an interpretation inconsistent with the plain language of the statute to accommodate applicants who were not prepared to spend three out of four years in the country prior to claiming citizenship. 16 Occupying what may be characterized as the middle ground is Justice Bar- bara Reed’s analysis in Koo, Re (1992), 59 F.T.R. 27, 19 Imm. L.R. (2d) 1 (Fed. T.D.). Justice Reed accepted Associate Chief Justice Thurlow’s view in Papadogiorgakis that persons may have centralized their existence in Canada without being physically present for three out of the four years. Justice Reed set out six, non-exhaustive questions to determine whether the person regularly, normally or customarily lived in Canada during the preceding four years. 17 The “centralized existence test” assessed by Justice Reed’s six questions has come to be the preferred standard used by citizenship judges to determine whether an applicant has satisfied the residence requirement. Justice James O’Reilly described the test in Canada (Minister of Citizenship & Immigration) v. Nandre, 2003 FCT 650, 234 F.T.R. 245 (Fed. T.D.), at paragraph 21 as a qualitative standard to be applied when a person has not met the physical test. In his view, the connection to Canada would have to be quite strong for absences to be considered periods of continued residency. 18 This qualitative assessment appears to have been encouraged by the Minister by, among other things, providing standardized forms for the citizenship judges 130 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d)

which set out the six Koo questions as factors to be considered in making the residency determination. 19 While it is sometimes said that there are three tests of residence, there are effectively only two: strict physical presence or residency as determined by the Koo qualitative factors. 20 Notwithstanding the dominance of the Koo test and the change in the manner in which these appeals are heard, the use of the physical presence standard to determine residence has continued to be accepted by this Court. Justice Allan Lutfy (now Chief Justice), considered the matter after a change in the Court’s Rules to treat these appeals as an application rather than a de novo hearing. In Lam v. Canada (Minister of Citizenship & Immigration) (1999), 164 F.T.R. 177, 87 A.C.W.S. (3d) 432 (Fed. T.D.), Justice Lutfy held that it was open to the citizenship judge to adopt either of the conflicting interpretations represented by the Koo test or by Pourghasemi, so long as the judge properly applied the principles of the chosen approach to the facts of the case. 21 When Lam was decided, legislative proposals to amend the Citizenship Act were before Parliament in Bill C-63. If adopted in the form tabled, Bill C-63 would have expressly required that physical presence serve as the test of residence. Justice Lutfy considered that the conflict in the jurisprudence would pre- sumably be resolved when Bill C-63 was enacted. In the interim, he reasoned, it was not appropriate for judges on appeal to substitute their different opinions of the residency requirement for those of the citizenship judges. He considered that deference was owed to the special knowledge and experience of the citizenship judge, particularly “during this period of transition”. That is, until the proposed amendments were adopted by Parliament. 22 As it turned out, Bill C-63 was not enacted. However, similar proposals are once again before Parliament in the form of Bill C-37, An Act to Amend the Citizenship Act (2010), introduced on June 10, 2010. Bill C-37 remains at the first reading stage as of the date of writing. 23 This Court has, until recently, consistently followed the position stated in Lam. See for example: Canada (Minister of Citizenship & Immigration) v. Wall, 2005 FC 110, 45 Imm. L.R. (3d) 32 (F.C.); Canada (Minister of Citizenship & Immigration) v. Zhou, 2008 FC 939 (F.C.); Canada (Ministre de la Citoyennet´e & de l’Immigration) c. Ntilivamunda, 2008 FC 1081 (F.C.); Canada (Minister of Citizenship & Immigration) v. Jeizan, 2010 FC 323 (F.C.). 24 The determination of residency by citizenship judges has involved a two stage process. A threshold determination is made as to whether residence has been established in Canada. If it has not been established, the matter ends. If residence has been established, the second stage requires a determination as to whether the applicant’s residency satisfies the statutorily prescribed number of days. It has remained open to citizenship judges to choose either of the two ju- Hao v. Canada Richard G. Mosley J. 131

risprudential schools represented by Pourghasemi and Papadogiorgakis/Koo in making that determination so long as they reasonably applied their preferred interpretation of the statute to the facts of the application before them. 25 I note that this situation attracted expressions of concern from the Court. Indeed, Justice Muldoon recognized that the conflicting interpretations of the residency requirement created what he described at paragraph 22 of Harry, as a “scandalous incertitude in the law”. In Lin v. Canada (Minister of Citizenship & Immigration), 2002 FCT 346, 21 Imm. L.R. (3d) 104 (Fed. T.D.) at paragraph 19, Justice Eleanor Dawson (now of the Federal Court of Appeal) was moved to comment that “[t]here can be no more than one correct interpretation of paragraph 5 (1) (c)”. She echoed the comments of Justice Marc Nadon, as he then was, in Chen v. Canada (Minister of Citizenship & Immigration), 2001 FCT 1229, 17 Imm. L.R. (3d) 222 (Fed. T.D.), “that justice and fairness will no longer be achieved by the approach suggested in Lam, supra”. The situation, Justice Dawson stated at paragraph 21, “can only be remedied by Parliament clearly expressing its will with respect to the residence requirement”. 26 Absent Parliamentary action in the interim, the status quo in this regard has recently been called into question. 27 In Canada (Ministre de la Citoyennet´e & de l’Immigration) c. Takla, 2009 FC 1120, 359 F.T.R. 248 (Eng.) (F.C.), Justice Robert Mainville (now of the Federal Court of Appeal) conducted a thorough analysis of the jurisprudence relating to the standard to be applied in an appeal from a citizenship judge’s decision. He concluded, at paragraphs 38 and 39 of his reasons, that the charac- teristics of the reasonableness standard were particularly applicable in this context but that the Court owed only a qualified deference to a citizenship judge’s determination of compliance with the residence requirement. Justice Mainville considered that it was now appropriate to settle on one interpretation of paragraph 5(1)(c): that the centralized mode of living in Canada test established in Koo, above, and the six questions set out therein for analytical purposes, should become the only test of residency. 28 In comments at paragraphs 41 and 47 of his reasons in Takla, Justice Mainville indicates that on a plain reading of the legislation he would have preferred the physical presence test required by the Pourghasemi interpretation. I agree with Justice Mainville that this interpretation appears to be what Parlia- ment intended when it enacted paragraph 5(1)(c) and provided that a person need not be actually resident in Canada for one of the four years prior to the application. A reasonable inference from a reading of the Act as a whole is that Parliament intended a one year period to be sufficient to accommodate an applicant’s necessary absences while he or she was establishing residency in this country. 29 Notwithstanding his reading of the legislation, Justice Mainville thought it necessary to resolve the continuing divergence of views as to the correct inter- 132 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d)

pretation of the statute in favour of the Koo test. He did so, Justice Mainville explained, because Koo had become the preferred standard and because it was preferable to promote a uniform approach to the interpretation and application of statutory language. In support of the latter conclusion, Justice Mainville cited Canada (Attorney General) v. Mowat, 2009 FCA 309, 312 D.L.R. (4th) 294 (F.C.A.), appeal to the Supreme Court of Canada reserved (December 13, 2010) [2009] S.C.C.A. No. 545. 30 Mowat is one of several cases that have addressed the issue of consistency in administrative decision making following the decision of the Supreme Court of Canada in Dunsmuir, above. 31 Prior to Dunsmuir, the prevailing view in the jurisprudence appeared to be that where the standard of review was not correctness, the Courts should not intervene to resolve inconsistencies in a tribunal’s interpretation of its enabling statute. A lack of unanimity was considered to be the price to pay for the decision-making freedom and independence given to tribunal members: Domtar Inc. c. Québec (Commission d’appel en matière de lésions professionnelles), [1993] 2 S.C.R. 756 (S.C.C.) at para. 94; Essex (County) Roman Catholic Separate School Board v. O.E.C.T.A. (2001), 56 O.R. (3d) 85 (Ont. C.A.) at paras. 29 and 30; National Steel Car Ltd. v. U.S.W.A., Local 7135, 278 D.L.R. (4th) 345, 218 Q.A.C. 207 at para. 31; Hydro Ottawa Ltd. v. I.B.E.W., Local 636 (2007), 85 O.R. (3d) 727 (Ont. C.A.) at para. 59; Ottawa Police Assn. v. Ottawa Police Services Board (2008), 233 O.A.C. 51 (Ont. Div. Ct.) at para. 30. 32 A refinement of this approach in the cases was that judicial interference was warranted where operational conflicts made it impossible to follow inconsistent decisions: British Columbia Telephone Co. v. Shaw Cable Systems (B.C.) Ltd., [1995] 2 S.C.R. 739 (S.C.C.) at para 53; Chapman v. Minister of National Reve- nue, 2002 FCT 655, 221 F.T.R. 126 (Fed. T.D.). 33 Following Dunsmuir, several courts have suggested that in applying the reasonableness standard, there should be a different approach to the determination of whether deference is owed to administrative decision makers who differ in their interpretations of the applicable legal principles. In Novaquest Finishing Inc. v. Abdoulrab, 2009 ONCA 491, 95 Admin. L.R. (4th) 121 (Ont. C.A.) at paragraph 48, while the decision did not turn on the question, Justice Russell Juriansz of the Ontario Court of Appeal offered the following observations: From a common sense perspective, it is difficult to accept that two truly contradictory interpretations of the same statutory provision can both be upheld as reasonable. If two interpretations of the same statutory provision are truly contradictory, it is difficult to envisage that they both would fall within the range of acceptable outcomes. More importantly, it seems incompatible with the rule of law that two contradictory interpretations of the same provision of a public statute, by which citizens order their lives, could both be accepted as reasonable. Hao v. Canada Richard G. Mosley J. 133

34 Justice Kathryn Feldman of the same Court expressed similar views in Investment Dealers Assn. of Canada v. Taub, 2009 ONCA 628, 311 D.L.R. (4th) 389 (Ont. C.A.). She stated, at paragraph 67: I agree with Juriansz J.A. that it accords with the rule of law that a public statute that applies equally to all affected citizens should have a universally accepted interpretation. It follows that where a statutory tribunal has interpreted its home statute as a matter of law, the fact that on appeal or judicial review the standard of review is reasonableness does not change the precedential effect of the decision for the tribunal. Whether a court has had the opportunity to declare the decision to be correct according to judicially applicable principles should not affect its precedential status. As in Abdoulrab, it is not necessary to decide the issue in this case. 35 Justice Feldman characterized the changing view of the concept of deference in the following terms at paragraph 24 of her reasons in Taub: It has been said that where the standard of review is not correctness, on issues within its expertise an administrative tribunal has “the right to be wrong”: e.g. Air Canada v. International Assn. of Machinists and Aerospace Workers, [1978] O.J. No. 1053 (Div. Ct.), at para. 11. In my view, Dunsmuir has made it clear that if this was ever true, it no longer is. Where there is a question that is reviewable on the reasonableness standard, a decision that is found to be unreasonable will in virtually every case for that reason be wrong. If a decision deserves deference because of the process by which it was reached and because the result is a reasonable one, then it will not be wrong. As I stated above, the administrative law concept of deference is not accorded on the basis of deference to an exercise of quasi-judicial discretion, but on the basis of respect for an experienced decision-maker with particular expertise who has engaged in a process and reached an outcome that has been demonstrated to warrant that deference. 36 These statements in Abdoulrab and Taub were cited with approval by the Federal Court of Appeal in Mowat. Mowat concerned a determination by the Canadian Human Rights Tribunal that it had the authority to award costs to a successful complainant. The question had not been answered consistently by the Tribunal and had been the subject of diverse opinions in the Federal Court. The Court of Appeal found, at paragraphs 47-51, that the application judge erred in choosing reasonableness as the standard of review. Because of the public interest mandate of the Tribunal and the public interest nature of the legislation, the issue was a general question of law of central importance to the legal system as a whole. It was also one that was outside the specialized area of the Tribunal’s expertise. Thus, it called for the application of the correctness standard. Apply- ing that standard and generally recognized principles of statutory interpretation, the Court of Appeal found that the Canadian Human Rights Act did not em- power the Tribunal to award costs. 134 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d)

37 At paragraph 45 of Mowat, citing the comments from the Ontario Court of Appeal decisions reproduced above, Justice Carolyn Layden-Stevenson, for the Court, noted that: There is much to be said for the argument that where there are two conflicting lines of authority interpreting the same statutory provision, even if each on its own could be found to be reasonable, it would not be reasonable for a court to uphold both. But Mowat was not decided on this basis. The Court of Appeal, applying the correctness standard, found that the tribunal had erred in its interpretation of the governing statute. As Justice Layden-Stevenson noted at paragraph 97, quoting from ATCO Gas & Pipelines Ltd. v. Alberta (Energy & Utilities Board), [2006] 1 S.C.R. 140 (S.C.C.) at para. 51, the “mandate of the court is to determine and apply the intention of Parliament without crossing the line between judicial interpretation and legislative drafting”. 38 In this case, it has not been argued that the citizenship judge’s interpretation of the legislation calls for the application of the correctness standard and a finding that the Citizenship Judge’s interpretation was wrong in law. Indeed it would have been difficult for the applicant to assert that proposition given Justice Mainville’s remarks in Takla and those of several other judges of this Court, that a plain reading of the statute supports the physical presence interpretation. 39 I would have had difficulty finding that the question at issue is one of general law that is of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise: Dunsmuir, above, at para. 60. In my view, the combination of an expert tribunal and a question of law within that tribunal’s expected range of expertise should result in deference, even in the face of a statutory right of appeal. 40 It was argued in this case that there are several considerations which favour a finding that the decision was unreasonable. These include the fact that the transition referred to in Lam, above, has not come to pass as Parliament has failed to deal with the issue and it is no longer reasonable to adhere to the strict interpretation. Moreover, the inconsistent interpretations of the residency requirement used by citizenship judges result in uncertainty in the application of the law to individual claimants. 41 I agree that these are important considerations and that the reasoning in the obiter comments in Abdoulrab, Taub and Mowat cited above is compelling. It is preferable from an administrative law perspective that the interpretation of provisions in a statute governing the interests of individuals be consistent. How- ever, is that a question for the Court or for Parliament to resolve? 42 The reasoning in Takla that the Koo test should be the sole standard has been endorsed in several subsequent decisions of this Court: Canada (Minister of Citizenship & Immigration) v. Elzubair, 2010 FC 298 (F.C.); Canada (Minister of Citizenship & Immigration) v. Alonso Cobos, 2010 FC 903 (F.C.); Canada Hao v. Canada Richard G. Mosley J. 135

(Minister of Citizenship & Immigration) v. Salim, 2010 FC 975 (F.C.); Canada (Minister of Citizenship & Immigration) v. Manas, 2010 FC 1056 (F.C.); Canada (Ministre de la Citoyennet´e & de l’Immigration) c. Abou-Zahra, 2010 FC 1073 (F.C.); Dedaj v. Canada (Minister of Citizenship & Immigration), 2010 FC 777 (F.C.); Ghaedi v. Canada (Minister of Citizenship & Immigration), 2011 FC 85 (F.C.). 43 The physical presence interpretation had been applied by the citizenship judges in Manas, Dedaj and Ghaedi. In Manas and Dedaj that was found to be unreasonable. In Ghaedi, Justice Robert Barnes reviewed the decision on the correctness standard. In Alonso Cobos, as in Takl, the citizenship judge had applied the Koo framework. The determinative issue in those cases was whether the questions had been answered reasonably. In Elzubair, Salim and Abou- Zahra, it was not clear from the Citizenship Judges’ reasons which test they had chosen to apply. 44 In Dachan v. Canada (Minister of Citizenship & Immigration), 2010 FC 538 (F.C.), Justice Luc Martineau took note of Takla and Elzubair without making a finding as to whether the Federal Court should prefer one test over another. Neither party had raised the question of whether a single consolidated and contextual approach should be adopted. The issue in Dachan was whether the factual finding that the applicant had not established her presence in Canada for a minimum of 1095 days was reasonable. 45 In Sarvarian v. Canada (Minister of Citizenship & Immigration), 2010 FC 1117 (F.C.), Justice Yvon Pinard noted the decisions that held that physical presence for the full 1095 days was not required. In his view, actual presence in Canada remains the most relevant and crucial factor to be taken into account for establishing whether or not a person was “resident” in Canada within the meaning of the provision. To allow a period of absence longer than the one year in four is contrary to the sprit of the Act, he considered. Accordingly, Justice Pinard dismissed an appeal from a citizenship judge’s decision that applied the Pourghasemi interpretation. 46 In another decision, Shubeilat c. Canada (Ministre de la Citoyennet´e & de l’Immigration), 2010 CF 1260 (F.C.), Justice Michel Shore endorsed the position that it is up to the citizenship judge to determine the correct test to apply, including the stricter test of physical presence set out in Pourghasemi. Justice Shore upheld the reasonableness of the Citizenship Judge’s finding that the applicant had not been physically present in the country for the required 1095 days. 47 Justice Anne Mactavish also upheld the discretion of a citizenship judge to apply any of the alternative tests in Cardin v. Canada (Minister of Citizenship & Immigration), 2011 FC 29 (F.C.) at paragraph 18. In the particular circumstances of that case, however, she found that it was unreasonable for the citizenship judge to apply the physical presence standard as the applicant had already 136 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d)

established a deep and long-standing connection to Canada. Justice Mactavish endorsed the views expressed by Justice Dawson in Lin, above, that this was an area of the law that cries out for legislative reform. 48 I am unable to find that the underlying decision in this case was unreasonable. It is apparent from the record that the Citizenship Judge carefully considered the facts of the application. From his notes to file, it is clear that he took care in interviewing the applicant to explore her attachment to this country and her reasons for her absences during the four year period prior to the application. He wrote thorough reasons for the decision that meet the standard of sufficiency. But for the applicant’s preference for an interpretation of the residency requirement that is more favourable to her personal circumstances, the merits of the decision have not been questioned. Moreover, this is not a case where I would find that residency had been established in the particular factual circumstances and the application of the physical presence test was unreasonable, as in Cardin, above. 49 In the interests of judicial comity, I have considered whether I should follow the analysis of my colleagues who favour the Koo test. The principle of judicial comity recognizes that decisions of the Court should be consistent so as to provide litigants with a certain degree of predictability: Abbott Laboratories v. Canada (Minister of Health), 2006 FC 120 (F.C.), reversed on appeal on other grounds: 2007 FCA 73, 361 N.R. 90 (F.C.A.). I note that Justice Barnes in Ghaedi, above, declined to apply the principle in this context, albeit in reference to the Lam line of authority. 50 I agree that it would be preferable to have consistency in the test applied to determine residency but several judges of this Court, including myself, have found that the physical presence interpretation is appropriate on a plain reading of the statute. And this Court, for over 11 years, has deferred to decisions by citizenship judges to choose that interpretation over the alternative as a reasonable exercise of their discretion. While the inconsistent application of the law is unfortunate, it can not be said that every example of that inconsistency in this context is unreasonable. If the situation is “scandalous” as Justice Muldoon suggested many years ago in Harry, it remains for Parliament to correct the problem. 51 The appeal is dismissed. In the circumstances, while costs were requested I do not consider it appropriate to award them.

Judgment IT IS THE JUDGMENT OF THIS COURT that the appeal from the decision of a Citizenship Judge denying the applicant’s application for citizenship under paragraph 5(1)(c) of the Citizenship Act, R.S.C. 1985, c. C-29, is dismissed. No costs are awarded. Appeal dismissed. Demiraj v. Canada (Minister of Citizenship & Immigration) 137

[Indexed as: Demiraj v. Canada (Minister of Citizenship & Immigration)] Mensur Demiraj & Vele Demiraj, Applicants and The Minister of Citizenship and Immigration, Respondent Federal Court E. Heneghan J. Heard: February 8, 2011 Judgment: February 10, 2011 Docket: IMM-3453-10, IMM-3455-10, 2011 FC 161 Jonathan Fedder, for Applicants David Cranton, for Respondent Immigration and citizenship –––– Refugee protection — Elements of protected refugee status — Protection of country of nationality — Sufficiency of state protection –––– Undue hardship — Claimants sought protection in Canada on basis of persecution in Albania arising from blood feud between their family; they claimed protection as Convention refugees or persons in need of protection — Their application was rejected on grounds that they had failed to rebut presumption of state protection — Application for judicial review was dismissed — They submitted Pre-Removal Risk Assessment (PRRA) application and application for permanent residence on humanitarian and compassionate (H&C) grounds — Applications were dismissed — Officer reasoned that because there was state protection available, that claimants faced no risk to life and therefore there would be no undue hardship if returned to Albania — Claimants brought application for judicial review — Application allowed in part; application for judicial review in respect of negative determination of H&C application allowed — PRRA officer did not apply wrong test or fail to conduct proper analysis; there was no basis for judicial interference — Officer did not err in assessing risk in context of H&C application; she properly noted that there was no evidence of change in risk — However, officer did not take correct approach in assessing potential hardship that claimants would face if returned to Albania — Officer erred in considering availability of state protection to be determinative of whether claimants would face disproportionate hardship if returned, without addressing whether they would face hardship should they need state protection. Immigration and citizenship –––– Refugee protection — Practice and procedure in refugee claims — Post-determination options — Humanitarian and compassionate review –––– Claimants sought protection in Canada on basis of persecution in Albania arising from blood feud between their family; they claimed protection as Convention refugees or persons in need of protection — Their application was rejected on grounds that they had failed to rebut presumption of state protection — Application for judicial review was dismissed — They submitted Pre-Removal Risk Assessment (PRRA) application and application for permanent residence on humanitarian and compassionate (H&C) grounds — Applications were dismissed — Officer reasoned that because there was state protection available, that claimants faced no risk to life and therefore there would be no 138 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d) undue hardship if returned to Albania — Claimants brought application for judicial review — Application allowed in part; application for judicial review in respect of negative determination of H&C application allowed — PRRA officer did not apply wrong test or fail to conduct proper analysis; there was no basis for judicial interference — Officer did not err in assessing risk in context of H&C application; she properly noted that there was no evidence of change in risk — However, officer did not take correct approach in assessing potential hardship that claimants would face if returned to Albania — Officer erred in considering availability of state protection to be determinative of whether claimants would face disproportionate hardship if returned, without addressing whether they would face hardship should they need state protection. Immigration and citizenship –––– Refugee protection — Removal — Pre-Removal Risk Assessment (PRRA). Cases considered by E. Heneghan J.: Khosa v. Canada (Minister of Citizenship & Immigration) (2009), 82 Admin. L.R. (4th) 1, 2009 SCC 12, 2009 CarswellNat 434, 2009 CarswellNat 435, 304 D.L.R. (4th) 1, 77 Imm. L.R. (3d) 1, 385 N.R. 206, (sub nom. Canada (Citizenship & Immigration) v. Khosa) [2009] 1 S.C.R. 339, [2009] S.C.J. No. 12 (S.C.C.) — followed New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Bruns- wick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — followed Pacia v. Canada (Minister of Citizenship & Immigration) (2008), 73 Imm. L.R. (3d) 274, 2008 CarswellNat 2087, 2008 CF 804, 2008 CarswellNat 3296, 2008 FC 804, [2008] F.C.J. No. 1014 (F.C.) — considered Raza v. Canada (Minister of Citizenship & Immigration) (2007), 2007 CarswellNat 4905, 2007 FCA 385, 68 Admin. L.R. (4th) 225, 2007 CarswellNat 6368, 2007 CAF 385, 370 N.R. 344, 289 D.L.R. (4th) 675, [2007] F.C.J. No. 1632 (F.C.A.) — considered Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 25(1) — referred to s. 96 — considered s. 97 — considered s. 113(a) — considered

APPLICATION by claimants for judicial review of negative determination of Pre-Re- moval Risk Assessment application and humanitarian and compassionate application. Demiraj v. Canada (Minister of Citizenship & Immigration) E. Heneghan J. 139

E. Heneghan J.:

1 Mr. Mensur Demiraj and his wife Mrs. Vele Demiraj (the “Applicants”) are citizens of Albania who came to Canada in November, 2007. They sought protection in Canada, pursuant to the provisions of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the “Act”) on the basis of persecution in Alba- nia arising from a blood feud between their extended family, that is the Demiraj family and the Bushati family. They claimed protection in Canada, either as Convention refugees or as persons in need of protection as defined in sections 96 and 97 of the Act, respectively. 2 The specific impetus for this blood feud was a romantic relationship between Taulant Demiraj, a nephew of the male Applicant and a young female member of the Bushati family. The young woman was “intended” to be the wife of another man and the romantic relationship with Taulant, when discovered by the Bushati family in February 2007 led to an attack upon Taulant. The attack was reported to the police. Subsequently, Taulant and his friends attacked a member of the Bushati family. Ultimately, a member of the Bushati family was injured by a firearm that was shot by Taulant in July 2007. The Bushati’s then declared a blood feud against the immediate family of Taulant. 3 After the shooting, Taulant, together with his brother and sister-in-law, moved into the Applicants’ house in Tirana, the capital city of Albania. After the declaration of the blood feud, the Applicants left Tirana and went to Korce, living with the male Applicant’s sister until they left Albania on September 4, 2007. 4 The Applicants travelled to Canada on false passports, obtained from a smuggler. They landed in Canada on November 22, 2007, arriving in Montreal. The Refugee Protection Division of the Immigration and Refugee Board (the “Board”) rejected their claim for status as refugees or persons in need of protection in a decision dated February 23, 2009, on the grounds that the Applicants had failed to rebut the presumption of state protection in Albania. The Appli- cants successfully obtained leave for judicial review of the Board’s decision but their application for judicial review was dismissed on September 25, 2009. 5 On January 18, 2010, the Applicants submitted a Pre-Removal Risk Assess- ment (“PRRA”) application, pursuant to the Act. In this application, they alleged that they continue to be at risk in Albania from the blood feud between the Ap- plicants’ family and the Bushati family. 6 On May 6, 2009, the Applicants also submitted an application for permanent residence from within Canada, on humanitarian and compassionate grounds (the “H & C application”), pursuant to subsection 25(1) of the Act. The basis of this application was the extreme hardship that they would suffer if separated from their daughter who lives in Michigan, United States of America, with her husband and two American-born young children. The Applicants also claimed that 140 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d)

they would face considerable hardship, for example by living in social isolation and unable to look after their basic needs, if returned to Albania. 7 A PRRA Officer (the “Officer”) assessed both the PRRA and H & C application. In a decision dated April 27, 2010, the Officer refused the PRRA application, noting that the Applicants had failed to submit new evidence of risk to them in Albania. 8 By a decision dated April 28, 2010, the Officer denied the Applicants’ H & C application. The rationale for this decision was the Applicants’ failure to show that they would face a risk if returned to Albania, as well as their failure to establish that they would suffer unusual and undeserved or disproportionate hardship if returned to Albania. In the negative H & C decision the Officer considered the Applicants’ establishment in Canada, in comparison with their establishment in Albania, as well as the best interests of children who might be affected by their return to Albania, in this case, their grandchildren who lived in Michigan but who have visited, and continue to visit the Applicants in Windsor, Ontario. 9 In the written and oral submissions made on their behalf, the Applicants argue that the Officer committed reviewable errors in making both decisions, including errors of law and failure to address relevant evidence. 10 The first issue to be addressed is the relevant standard of review. According to the decision in New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190 (S.C.C.), decisions of statutory decision-makers, like the Officer, are reviewable on one of two standards, either reasonableness for fact-driven conclusions and questions of mixed fact and law, or correctness for questions of law and issues of procedural fairness. 11 In Khosa v. Canada (Minister of Citizenship & Immigration), [2009] 1 S.C.R. 339 (S.C.C.), the Supreme Court of Canada confirmed this approach to the identification of the relevant standard of review. The issue whether the Of- ficer applied the appropriate legal test is reviewable on the standard of correctness. Otherwise, the issues decided by the Officer in this case were ones of mixed fact and law, reviewable on the standard of reasonableness. According to Dunsmuir and Khosa, that standard is met when a decision is justifiable, trans- parent and intelligible. 12 I will first discuss the PRRA decision which is the subject of cause number IMM-3453-10. I am not persuaded that any of the arguments raised by the Ap- plicants supports a finding that the Officer committed any error of law in dealing with their PRRA application. The Officer did not apply the wrong test nor fail to conduct a proper analysis. 13 Subsection 113(a) of the Act allows a person to submit new evidence upon a PRRA application when a prior request for refugee protection has been rejected by the Board. The meaning of “new evidence” was definitively reviewed by the Demiraj v. Canada (Minister of Citizenship & Immigration) E. Heneghan J. 141

Federal Court of Appeal in Raza v. Canada (Minister of Citizenship & Immigra- tion) (2007), 289 D.L.R. (4th) 675 (F.C.A.), at para. 13. “New evidence” is evidence that meets the following criteria: ... 3. Newness: Is the evidence new in the sense that it is capable of: (a) proving the current state of affairs in the country of removal or an event that occurred or a circumstance that arose after the hearing in the RPD, or (b) proving a fact that was unknown to the refugee claimant at the time of the RPD hearing, or (c) contradicting a finding of fact by the RPD (including a credibility finding)? If not, the evidence need not be considered. In the result, I see no basis for judicial interference in this negative PRRA decision. The Officer made a reasonable decision, having regard to the material submitted. This application for judicial review is dismissed. No question for certification was proposed. 14 I turn now to the decision whereby the Officer refused the Applicants’ H & C application. The Applicants here argue that the Officer erred by applying the wrong test for assessing risk, using the elevated standard for assessing risk in the context of a PRRA application rather than the less stringent test that applies in an H & C application. 15 As well, the Applicants submit that the Officer erred in her assessment of “hardship” should they be returned to Albania. 16 I am not satisfied that the Officer erred in assessing risk in the context of an H & C application. She properly noted that there was no evidence of a change in risk between the negative determination of their refugee claim, and that state protection was still available to the Applicants. 17 However, at the same time, I am not satisfied that the Officer took the correct approach to assessing the potential hardship the Applicants will face if returned to Albania. The Officer reasons that because there is state protection available in Albania, the Applicants face no risk to life, and therefore, that there will be no undue, undeserved or disproportionate hardship. 18 In Pacia v. Canada (Minister of Citizenship & Immigration) (2008), 73 Imm. L.R. (3d) 274 (F.C.), Justice Mosley held that equating state protection to a lack of undue, undeserved or disproportionate hardship is an error of law, as it indicates that the officer applied the wrong legal test. At para. 13, Justice Mos- ley said: ...The Officer accepted the applicant’s account of a long-standing dispute in her community and threats of harm. The finding that protection was available 142 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d)

to the applicant does not address the question whether she would encounter undue hardship should she be required to avail herself of the state’s shelter. 19 In my opinion, the Officer in this case committed the same error. She considered the availability of state protection to be determinative of whether the Applicants faced unusual, undeserved or disproportionate hardship if returned to Albania, without addressing whether the Applicants will face hardship should they need the protection of the state. In doing so, the Officer applied the wrong legal test. 20 The application for judicial review in respect of the negative determination of the H & C application is allowed. No question for certification was proposed. Application allowed in part.

[Indexed as: Dhaliwal v. Canada (Minister of Citizenship & Immigration)] Jaskaran Singh Dhaliwal, Applicant and The Minister of Citizenship and Immigration and The Minister of Public Safety and Emergency Preparedness, Respondent Federal Court Anne Mactavish J. Heard: February 16, 2011 Judgment: February 18, 2011 Docket: IMM-3732-10, 2011 FC 201 Barbara Jackman, Hadayt Nazami, for Applicant Brad Gotkin, for Respondent Immigration and citizenship –––– Exclusion and removal — Removal from Can- ada — Appeals and judicial review — Immigration Appeal Division — Proce- dure –––– After hearing, Immigration Division of Immigration and Refugee Board issued exclusion order against applicant for misrepresentation by entering into bad faith marriage — Applicant appealed to Immigration Appeal Division (IAD) — Presiding member refused to let self-represented applicant testify on appeal — IAD upheld exclusion order — Applicant applied for judicial review — Application granted — Applicant was denied procedural fairness — Outcome of proceedings before IAD depended entirely upon relative credibility of applicant and ex-wife, who testified at some length — Applicant was denied meaningful opportunity to fully present his case — Presiding member did not understand how self-represented applicant could put own testimony before IAD without lawyer to conduct examination — Applicant expected that member would question him, as contemplated by IAD’s own information guide, but member refused to do so and did Dhaliwal v. Canada 143 not explain that applicant could simply take witness stand and tell his side of story — Member interfered with applicant’s cross-examination of ex-wife, preventing him from asking clearly relevant questions and denied him opportunity to respond to ex-wife’s testimony — Applicant made it very clear that he wished to supplement his testimony from Immigration Division hearing with additional information and was prevented from doing so — IAD’s reasons explicitly stated that any new evidence adduced by applicant was disregarded even though it was de novo hearing — Breaches of procedural fairness were so obvious and so serious that this application should not have been opposed and so special reasons existed justifying award of costs in applicant’s favour. Cases considered by Anne Mactavish J.: Cardinal v. Kent Institution (1985), [1985] 2 S.C.R. 643, [1986] 1 W.W.R. 577, 24 D.L.R. (4th) 44, 63 N.R. 353, 69 B.C.L.R. 255, 16 Admin. L.R. 233, 23 C.C.C. (3d) 118, 49 C.R. (3d) 35, 1985 CarswellBC 402, 1985 CarswellBC 817, [1985] S.C.J. No. 78 (S.C.C.) — followed Davids v. Davids (1999), 125 O.A.C. 375, 1999 CarswellOnt 3304, [1999] O.J. No. 3930 (Ont. C.A.) — considered Ibrahim v. Canada (Minister of Citizenship & Immigration) (2007), 2007 CarswellNat 4561, 68 Imm. L.R. (3d) 43, 2007 CF 1342, 2007 FC 1342, 2007 CarswellNat 5649, [2007] F.C.J. No. 1734 (F.C.) — considered John Doe v. Canada (Minister of Citizenship & Immigration) (2006), 2006 CF 535, 2006 CarswellNat 1543, 2006 CarswellNat 1105, 2006 FC 535, 54 Imm. L.R. (3d) 212, [2006] F.C.J. No. 674 (F.C.) — referred to Johnson v. Canada (Minister of Citizenship & Immigration) (2005), 275 F.T.R. 316, 2005 CarswellNat 2838, 2005 FC 1262, 52 Imm. L.R. (3d) 76, 2005 CF 1262, 2005 CarswellNat 4848, [2005] F.C.J. No. 1523 (F.C.) — referred to Kahlon v. Canada (Minister of Employment & Immigration) (1989), 97 N.R. 349, 7 Imm. L.R. (2d) 91, 1989 CarswellNat 39, [1989] F.C.J. No. 104 (Fed. C.A.) — referred to Khosa v. Canada (Minister of Citizenship & Immigration) (2009), 82 Admin. L.R. (4th) 1, 2009 SCC 12, 2009 CarswellNat 434, 2009 CarswellNat 435, 304 D.L.R. (4th) 1, 77 Imm. L.R. (3d) 1, 385 N.R. 206, (sub nom. Canada (Citizenship & Immigration) v. Khosa) [2009] 1 S.C.R. 339, [2009] S.C.J. No. 12 (S.C.C.) — referred to Manivannan v. Canada (Minister of Citizenship & Immigration) (2008), 2008 Car- swellNat 5284, 2008 CarswellNat 4769, 2008 FC 1392, 77 Imm. L.R. (3d) 193, 338 F.T.R. 203 (Eng.), 2008 CF 1392, [2008] F.C.J. No. 1754 (F.C.) — referred to Mobil Oil Canada Ltd. v. Canada-Newfoundland (Offshore Petroleum Board) (1994), 1994 CarswellNfld 277, 163 N.R. 27, 21 Admin. L.R. (2d) 248, 115 Nfld. & P.E.I.R. 334, 360 A.P.R. 334, [1994] 1 S.C.R. 202, 111 D.L.R. (4th) 1, 1994 CarswellNfld 211, EYB 1994-67363, [1994] S.C.J. No. 14 (S.C.C.) — distinguished Qin v. Canada (Minister of Citizenship & Immigration) (2002), 2002 FCT 1154, 2002 CarswellNat 3186, 225 F.T.R. 136, 2002 CarswellNat 4619, 24 Imm. L.R. (3d) 148, [2002] F.C.J. No. 1576 (Fed. T.D.) — referred to Wagg v. R. (2003), 2003 CarswellNat 2724, 2003 CAF 303, 2003 G.T.C. 1702, [2003] G.S.T.C. 120, (sub nom. Wagg v. Canada) [2004] 1 F.C.R. 206, 2003 FCA 303, 2003 CarswellNat 2128, (sub nom. Wagg v. Minister of National Revenue (Customs & Excise)) 308 N.R. 67, [2003] F.C.J. No. 1115 (F.C.A.) — referred to 144 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d)

Rules considered: Federal Courts Immigration and Refugee Protection Rules, SOR/93-22 R. 22 — considered

APPLICATION for judicial review of decision by Immigration Appeal Division of Im- migration and Refugee Board upholding exclusion order against applicant.

Anne Mactavish J.:

1 Jaskaran Singh Dhaliwal seeks judicial review of a decision of the Immigra- tion Appeal Division of the Immigration and Refugee Board. The IAD upheld an exclusion order issued by the Immigration Division, which had found that Mr. Dhaliwal had misrepresented material facts by entering into a bad faith marriage for the purposes of securing permanent residence in Canada. 2 At the conclusion of the hearing, I advised the parties that the application would be allowed as I was satisfied that Mr. Dhaliwal had been denied a fair hearing before the IAD. These are my reasons for coming to this conclusion.

Analysis 3 As Mr. Dhaliwal claims to have been denied procedural fairness in this matter, the task for this Court is to determine whether the process followed by the IAD satisfied the level of fairness required in all of the circumstances: see Khosa v. Canada (Minister of Citizenship & Immigration), 2009 SCC 12, [2009] 1 S.C.R. 339 (S.C.C.), at para. 43. 4 As counsel for the Minister put it, this was a “he said/she said” case. The outcome of the proceedings before the IAD depended entirely upon the relative credibility of Mr. Dhaliwal and his ex-wife, Ms. Mahli. While Ms. Mahli testified at some length before the IAD, Mr. Dhaliwal was denied a meaningful opportunity to fully present his side of the story to the Board. 5 Mr. Dhaliwal and Ms. Mahli had each testified before the Immigration Divi- sion with respect to the circumstances surrounding their marriage and the subsequent breakdown of the union. The Immigration Division preferred the evidence of Ms. Mahli over that of Mr. Dhaliwal. 6 Hearings before the IAD are de novo proceedings, and are not restricted to a review of the evidence that led to the exclusion order. Where new evidence is adduced on an appeal, the IAD must consider the whole case, including any new facts put before it: Kahlon v. Canada (Minister of Employment & Immigration), [1989] F.C.J. No. 104, 7 Imm. L.R. (2d) 91 (Fed. C.A.). 7 Mr. Dhaliwal appeared before the IAD without the assistance of counsel. He made it clear to the presiding member that he wished to testify on the appeal, as he was of the view that all of the relevant facts had not been put before the Immigration Division. He was denied the opportunity to do so. Dhaliwal v. Canada Anne Mactavish J. 145

8 It is evident from a review of the transcript that the presiding member simply did not understand how a self-represented litigant could put his own testimony before the Board without a lawyer present to conduct the individual’s examination in chief. 9 Mr. Dhaliwal came to the hearing anticipating that the Board member would question him. While there is no evidence before me that Mr. Dhaliwal had read it, the IAD’s own “Information Guide” clearly contemplates that self-represented appellants may ask Board members to ask them the questions that the Member thinks are needed to decide the appeal: see Information Guide — Gen- eral Procedures for all Appeals to the Immigration Appeal Division (IAD), at section 3(1). 10 The presiding member in this case refused to question Mr. Dhaliwal, advising him that “That is not the way it works”: transcript p. 4. Rather, the member repeatedly asked Mr. Dhaliwal to explain who would question him in chief if he were to take the stand. When Mr. Dhaliwal could not provide a satisfactory answer to this question, the hearing moved on to other matters, and Mr. Dhaliwal was never given an opportunity to testify as to his version of events. 11 The Board then stated in its decision that Mr. Dhaliwal “was not examined as he had chosen to act as his own counsel”. 12 At no time did the member ever explain to Mr. Dhaliwal that he could simply take the witness stand, be sworn in and tell his side of the story. Mr. Dhaliwal would, of course, then be subject to cross-examination by the Min- ister’s counsel. 13 There is no doubt that self-represented litigants can present challenges for adjudicators, who must be careful not to enter into the fray, or to try to act as counsel for the self-represented individual. At the same time, adjudicators do have a positive duty to ensure that all parties, including those who appear without counsel, receive a fair hearing. 14 In Davids v. Davids, [1999] O.J. No. 3930, 125 O.A.C. 375 (Ont. C.A.), the Ontario Court of Appeal observed that fairness requires that decision-makers have to “attempt to accommodate unrepresented litigants’ unfamiliarity with the process so as to permit them to present their case”: at para. 36. 15 Decision-makers have an obligation to ensure that the self-represented litigant understands the nature of the proceedings, and to direct the litigant’s attention to salient points of procedure: Wagg v. R., 2003 FCA 303, [2004] 1 F.C.R. 206 (F.C.A.) at paras. 32 and 33. That did not happen here. Indeed, it appears that the presiding member did not himself understand the procedural options available when an individual appearing without counsel wished to give evidence on his own behalf. 16 Moreover, it is evident from a review of the transcript that after this initial error at the outset of the hearing, the hearing went downhill from there. The 146 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d)

presiding member repeatedly interfered with Mr. Dhaliwal’s cross-examination of Ms. Mahli. While some of these interventions were undoubtedly justified, on other occasions Mr. Dhaliwal was prevented from asking what were clearly relevant questions. 17 The member also denied Mr. Dhaliwal any opportunity to respond to Ms. Mahli’s testimony. According to the member, Mr. Dhaliwal was not entitled to adduce any rebuttal evidence responding to Ms. Mahli’s evidence because once he had heard her testimony, Mr. Dhaliwal’s own evidence would be “spoiled”: transcript at page 15. 18 Counsel for the Minister acknowledges that the IAD erred by preventing Mr. Dhaliwal from either testifying on his own account in chief or responding to Ms. Mahli’s evidence. However, counsel submits that, at the end of the day, Mr. Dhaliwal was able to get his side of the story before the Board, through both his written submissions and through the testimony that he had given before the IAD. 19 I do not agree. 20 While the testimony that Mr. Dhaliwal gave before the Immigration Division was indeed before the IAD, Mr. Dhaliwal had made it very clear that he wished to supplement that testimony with additional information. He was prevented from doing so. 21 Moreover, the Board’s reasons explicitly state that any evidence that Mr. Dhaliwal attempted to adduce through his written submissions was disregarded by the presiding member. The decision says that “In his written submissions, the appellant has tried to further rebut Ms. Mahli’s testimony, and, in so doing, he has attempted on several occasions to enter new evidence which the panel necessarily must ignore...”: at para.16, emphasis added. 22 It is therefore clear that Mr. Dhaliwal was denied some of the most fundamental elements of a fair hearing, namely the right to adduce evidence on his own behalf, and to respond to the evidence against him. 23 I do not accept the Minister’s contention that Mr. Dhaliwal should be deemed to have waived his right to complain about the procedural unfairness of his hearing. It is evident from the transcript that he continuously attempted to get his evidence before the Board, and that he was prevented from doing so by the Board. He was ultimately forced to accept the directions and rulings of the presiding member, and to proceed accordingly. The principle of waiver is not engaged in these circumstances. 24 Finally, I do not accept the Minister’s submission that notwithstanding the breaches of procedural fairness in this case, there would be no purpose to remitting the matter to the IAD, as the outcome of any re-hearing would be a fore- gone conclusion. 25 As a general rule, a breach of procedural fairness will void the hearing and the resulting decision: see Cardinal v. Kent Institution, [1985] 2 S.C.R. 643, Dhaliwal v. Canada Anne Mactavish J. 147

[1985] S.C.J. No. 78 (S.C.C.). There, the Supreme Court of Canada observed that the right to a fair hearing is “an independent, unqualified right which finds its essential justification in the sense of procedural justice which any person affected by an administrative decision is entitled to have”. The Court went on to observe that “It is not for a court to deny that right and sense of justice on the basis of speculation as to what the result might have been had there been a [fair] hearing”: at para. 23. 26 There is a limited exception to this rule. That is, a breach of natural justice may be disregarded “where the demerits of the claim are such that it would in any case be hopeless”: Mobil Oil Canada Ltd. v. Canada-Newfoundland (Offshore Petroleum Board), [1994] 1 S.C.R. 202, [1994] S.C.J. No. 14 (S.C.C.), at para. 53. This may occur where, for example, the circumstances of the case involve a legal question which has an inevitable answer: at para. 52. This is not such a case. 27 As was noted earlier, this is a classic “he said/she said” case. The stories told by Ms. Mahli and Mr. Dhaliwal differ in many fundamental respects. The Immi- gration Division preferred Ms. Mahli’s version of events to that of Mr. Dhaliwal. The IAD will ultimately have to choose between these competing stories, but it must do so only after both sides have had a full and fair opportunity to present whatever relevant evidence they deem appropriate. I cannot say at this point that the outcome of the proceeding is pre-ordained.

Costs 28 Counsel for Mr. Dhaliwal submits that the breaches of procedural fairness in this case were so egregious that an order of costs should be made in his favour. 29 Costs are not ordinarily awarded in immigration proceedings in this Court. Rule 22 of the Federal Courts Immigration and Refugee Protection Rules, SOR/93-22 provides that “No costs shall be awarded to or payable by any party in respect of an application for leave, an application for judicial review or an appeal under these Rules unless the Court, for special reasons, so orders”. 30 The threshold for establishing the existence of “special reasons” is high, and each case will turn on its own particular circumstances: Ibrahim v. Canada (Minister of Citizenship & Immigration), 2007 FC 1342, [2007] F.C.J. No. 1734 (F.C.), at para. 8. 31 This Court has found special reasons to exist where one party has acted in a manner that may be characterized as unfair, oppressive, improper or actuated by bad faith: see Manivannan v. Canada (Minister of Citizenship & Immigration), 2008 FC 1392, [2008] F.C.J. No. 1754 (F.C.), at para. 51. 32 However, “special reasons” have also been found to exist where there is conduct that unnecessarily or unreasonably prolongs the proceedings: see, for example, John Doe v. Canada (Minister of Citizenship & Immigration), 2006 148 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d)

FC 535, [2006] F.C.J. No. 674 (F.C.); and Johnson v. Canada (Minister of Citizenship & Immigration), 2005 FC 1262, [2005] F.C.J. No. 1523 (F.C.), at para. 26; Qin v. Canada (Minister of Citizenship & Immigration), 2002 FCT 1154, [2002] F.C.J. No. 1576 (Fed. T.D.). In my view, this is such a case. 33 The mere fact that an immigration application for judicial review is opposed, and the tribunal is subsequently found to have erred, does not give rise to a “special reason” justifying an award of costs. However, this is, in my view, an exceptional case. The breaches of procedural fairness here were so obvious and so serious that the application for judicial review should never have been opposed. 34 I am therefore satisfied that special reasons exist justifying an award of costs in Mr. Dhaliwal’s favour. If the parties cannot agree as to the amount of costs, the Court may be spoken to.

Judgment THIS COURT ORDERS AND ADJUDGES that: 1. The application for judicial review is allowed, with costs. The decision of the IAD is set aside and Mr. Dhaliwal’s appeal is remitted to a differently constituted panel of the IAD for re-determination in accordance with these reasons. 2. No question arises for certification. Application granted. Dunkova v. Canada 149

[Indexed as: Dunkova v. Canada (Minister of Citizenship & Immigration)] Zdena Dunkova, Klara Dunkova, Jaroslav Dunka, Dominik Dunka, Natalija Dunkovav, David Dunka, Jarosla Dunka, Applicants and The Minister of Citizenship and Immigration, Respondent Federal Court Michael A. Kelen J. Heard: December 14, 2010 Judgment: December 22, 2010 Docket: IMM-1864-10, 2010 FC 1322 Mr. George J. Kubes, for Applicants Ms Marina Stefanovic, for Respondent Immigration and citizenship –––– Refugee protection — Practice and procedure in refugee claims — Judicial review — Miscellaneous issues –––– Applicants were citizens of Czech Republic, including mother, father and four minor children — Applicants claimed systemic racial discrimination in home country due to Czech Roma heritage — Discrimination ranged from repeated severe physical violence to ambivalence and open hostility on part of police force — Applicants applied to Immigration and Refugee Board in order to be declared Convention refugees or persons in need of protection; application was denied — Applicants applied for judicial review of decision — Application granted — Objective evidence presented to Board disclosed risks of personal injury to people of Czech Roma descent living in Czech Republic — Risks detailed within evidence were in line with those detailed under s. 97 of Immigration and Refugee Protection Act — Board was obligated to consider whether objective evidence indicated that applicants were personally at risk for similar treatment — Failure of Board to conduct such analysis constituted reviewable error — Was unnecessary to consider additional issues raised by applicants — Decision of Board was set aside and matter was referred to differently constituted panel for redetermination. Immigration and citizenship –––– Refugee protection — Convention refugee or person in need of protection seeking resettlement –––– Applicants were citizens of Czech Republic, including mother, father and four minor children — Applicants claimed systemic racial discrimination in home country due to Czech Roma heritage — Discrimina- tion ranged from repeated severe physical violence to ambivalence and open hostility on part of police force — Applicants applied to Immigration and Refugee Board in order to be declared Convention refugees or persons in need of protection; application was denied — Applicants applied for judicial review of decision — Application granted — Ob- jective evidence presented to Board disclosed risks of personal injury to people of Czech Roma descent living in Czech Republic — Risks detailed within evidence were in line with those detailed under s. 97 of Immigration and Refugee Protection Act — Board was obligated to consider whether objective evidence indicated that applicants were personally at risk for similar treatment — Failure of Board to conduct such analysis constituted 150 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d) reviewable error — Was unnecessary to consider additional issues raised by applicants — Decision of Board was set aside and matter was referred to differently constituted panel for redetermination. Immigration and citizenship –––– Refugee protection — Practice and procedure in refugee claims — Judicial review — Natural justice — General principles –––– Ap- plicants were citizens of Czech Republic, including mother, father and four minor children — Applicants claimed systemic racial discrimination in home country due to Czech Roma heritage — Discrimination ranged from repeated severe physical violence to ambivalence and open hostility on part of police force — Applicants applied to Immigration and Refugee Board in order to be declared Convention refugees or persons in need of protection; application was denied — Applicants applied for judicial review of decision — Application granted — Objective evidence presented to Board disclosed risks of personal injury to people of Czech Roma descent living in Czech Republic — Risks detailed within evidence were in line with those detailed under s. 97 of Immigration and Refugee Protection Act — Board was obligated to consider whether objective evidence indicated that applicants were personally at risk for similar treatment — Failure of Board to conduct such analysis constituted reviewable error — Was unnecessary to consider additional issues raised by applicants — Decision of Board was set aside and matter was referred to differently constituted panel for redetermination. Cases considered by Michael A. Kelen J.: Amare v. Canada (Minister of Citizenship & Immigration) (2008), 2008 FC 228, 70 Imm. L.R. (3d) 252, 2008 CarswellNat 422 (F.C.) — considered Baker v. Canada (Minister of Citizenship & Immigration) (1999), 1 Imm. L.R. (3d) 1, [1999] 2 S.C.R. 817, 14 Admin. L.R. (3d) 173, 174 D.L.R. (4th) 193, 1999 Car- swellNat 1124, 1999 CarswellNat 1125, 243 N.R. 22, [1999] S.C.J. No. 39 (S.C.C.) — referred to Chamo v. Canada (Minister of Citizenship & Immigration) (2005), 2005 FC 1219, 2005 CarswellNat 2694, 2005 CF 1219, 2005 CarswellNat 4768, [2005] F.C.J. No. 1482 (F.C.) — referred to Corzas Monjaras v. Canada (Minister of Citizenship & Immigration) (2010), 2010 CF 771, 2010 CarswellNat 3371, 2010 FC 771, 2010 CarswellNat 2459 (F.C.) — referred to Dunova v. Canada (Minister of Citizenship & Immigration) (2010), 2010 CarswellNat 2734, 367 F.T.R. 89 (Eng.), 2010 CarswellNat 1137, 2010 FC 438, 2010 CF 438 (F.C.) — considered Geza v. Canada (Minister of Citizenship & Immigration) (2006), 2006 FCA 124, 2006 CarswellNat 706, (sub nom. Kozak v. Canada (Minister of Citizenship & Immigra- tion)) 349 N.R. 309, 52 Imm. L.R. (3d) 163, 2006 CAF 124, [2006] 4 F.C.R. 377, 2006 CarswellNat 2310, 267 D.L.R. (4th) 54, 41 Admin. L.R. (4th) 45, [2006] F.C.J. No. 477 (F.C.A.) — referred to Kaleja v. Canada (Minister of Citizenship & Immigration) (2010), 2010 CarswellNat 2274, 2010 CF 252, 2010 CarswellNat 502, 2010 FC 252, [2010] F.C.J. No. 291 (F.C.) — referred to Khosa v. Canada (Minister of Citizenship & Immigration) (2009), 82 Admin. L.R. (4th) 1, 2009 SCC 12, 2009 CarswellNat 434, 2009 CarswellNat 435, 304 D.L.R. (4th) 1, Dunkova v. Canada Michael A. Kelen J. 151

77 Imm. L.R. (3d) 1, 385 N.R. 206, (sub nom. Canada (Citizenship & Immigration) v. Khosa) [2009] 1 S.C.R. 339, [2009] S.C.J. No. 12 (S.C.C.) — followed Liang v. Canada (Minister of Citizenship & Immigration) (2008), 2008 FC 450, 2008 CarswellNat 922, 2008 CarswellNat 2398, 2008 CF 450, [2008] F.C.J. No. 572 (F.C.) — referred to New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Bruns- wick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — followed Ranganathan v. Canada (Minister of Citizenship & Immigration) (2003), 2003 Car- swellNat 4418, 2003 CF 1367, 34 Imm. L.R. (3d) 302, 2003 CarswellNat 3722, 2003 FC 1367, [2003] F.C.J. No. 1741 (F.C.) — referred to Rodriguez Perez v. Canada (Minister of Citizenship & Immigration) (2009), 2009 CF 1029, 2009 CarswellNat 5885, 2009 FC 1029, 2009 CarswellNat 3187 (F.C.) — referred to Singh v. Canada (Minister of Citizenship & Immigration) (2005), 2005 FC 35, 2005 Car- swellNat 193, (sub nom. Singh (Mohinder) v. Canada (Minister of Citizenship & Im- migration)) 268 F.T.R. 95 (Eng.), 2005 CF 35, 2005 CarswellNat 1555, 29 Admin. L.R. (4th) 53, 49 Imm. L.R. (3d) 122, [2005] F.C.J. No. 59 (F.C.) — referred to Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 96 — considered s. 96 “r´efugi´e” — considered s. 97 — considered s. 97(1) — considered

APPLICATION for judicial review of decision of Immigration and Refugee Board refusing applicants’ application to be deemed Convention refugees or persons in need of protection under Immigration and Refugee Protection Act.

Michael A. Kelen J.:

1 This is an application for judicial review of a decision of the Refugee Protec- tion Division of the Immigration and Refugee Board (the Board), dated March 4, 2010, concluding that the applicants are not Convention refugees or persons in need of protection pursuant to sections 96 or 97 of the Immigration and Refugee Protection Act, S.C. 2001, c.27 (the Act) because the applicants do not have a well-founded fear of persecution in the Czech Republic on a Convention ground, nor would their return to the Czech Republic subject them personally to a risk to their lives, or to a risk of cruel and unusual treatment or punishment, or of torture. 152 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d)

Facts Background 2 The applicants are a family of six citizens of the Czech Republic: Zdena Dunkova, the principal applicant, her husband, Jaroslav Dunka, and their four minor children, David Dunka, Klara Dunkova, Natalija Dunkova and Dominik Dunka. They arrived in Canada on July 17, 2008, and claimed refugee status. The claims of all six individuals were heard jointly by the Board. 3 The applicants claim that they have been persecuted in the Czech Republic because of their Roma ethnicity. On her personal information form (PIF), which was relied upon by all six applicants, the principal applicant provided examples of ill treatment, discrimination, and physical violence suffered by the applicants in the Czech Republic, which formed the basis of their claim for protection. As listed on the PIF, these incidents included the following: 1. An ongoing pattern of ill treatment and discrimination: i. At paragraph 1 of the PIF narrative: “Every shopping trip for us meant abuse, either on the street or in the stores (assuming we were even allowed in).” ii. At paragraph 4 of the PIF narrative: “On numerous occasions my wife and small daughter were standing alone at a bus stop. When the bus appeared, it would drive by and not stop for her. How- ever, if there were other non gypsy people waiting for the bus with her, the bus would stop”. iii. At para 5 of the PIF narrative: “When I was looking for work, I would call about a job opening and have an interview set up. When I got to the interview and the place saw I was a gypsy I was told the job was no longer available. This happened many times.” 2. Isolated physical attacks upon the applicants: i. Shortly after the birth of her daughter in 2001, the principal applicant was beaten in the street by a group of people. The beating was severe enough that it required her to seek treatment at a hospital. At the hospital, she was made to wait in an isolated room for a very long time before anyone attended to her. ii. On April 27, 2006, the principal applicant was again attacked by a group of people, this time on a bus. She reported the incident to the police but no investigation was conducted. When she went to the police station to follow up on the incident, she was told to leave the station. iii. On June 6, 2007, the principal applicant and her husband were verbally attacked at a shopping centre. When he responded to the Dunkova v. Canada Michael A. Kelen J. 153

taunts, her husband was beaten. Visitors at the mall did not come to their assistance; rather, a store owner complained that Roma shoppers caused problems. The couple reported the incident to the police but received no follow-up. 4 At her interview with an immigration officer at the port of entry, the principal applicant stated that she lost a child as a result of the attack on her in 2006. 5 At the hearing before the Board, the principal applicant’s testimony ex- panded upon the incidents of physical injuries suffered by the applicants in the Czech Republic. She provided the following additional details: 1. The principal applicant testified that her husband went to the hospital for his injuries following the June 2007 incident, where he was subjected to the same treatment to which she had been subjected in 2001 — namely, isolation in a separate waiting room and a long delay before attendance. She stated that she asked for a medical report but was not given one. 2. The principal applicant testified that she went to the police to report the 2001 incident and injuries. She further testified that she followed up with the police approximately two months later, but was told that they could not find any report of the incident. 3. The principal applicant testified that there were skinheads in the Czech police force. 4. When questioned by the Board about her statement to the immigration officer regarding losing her child in 2006, the principal applicant testified that she had lost a child. She stated that she was forced to wait in a separate waiting room for eight hours after arriving at the hospital, despite repeatedly telling hospital staff that she was bleeding and needed help. The doctor who finally attended told her that she had lost her baby. She testified that she went to the police but they told her that they would not do anything to help. She testified that she considered going to a lawyer but did not have enough money.

Decision under Review 6 On March 4, 2010, the Board dismissed the applicants’ refugee claims because it found that they did not establish a well-founded fear of persecution based on a Convention ground should they be returned to the Czech Republic, nor did they establish that they would be personally subjected to a risk to life, or cruel or unusual punishment, or a danger of torture if returned to the Czech Republic. 154 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d)

7 At paragraph 11 of its reasons, the Board stated the determinative issue before it: ¶11. The determinative issue is whether there is a serious possibility that the claimants will be persecuted if they return to the Czech Republic by reason of their Roma ethnicity. 8 The Board considered the principal applicant’s testimony and found discrepancies among (1) the principal applicant’s testimony at the hearing, (2) her PIF, and (3) her port of entry interview. Based upon these discrepancies, the Board found the principal applicant to be not credible for the following reasons: 1. The Board considered the principal applicant’s testimony regarding the June 2007 incident in which her husband was beaten while responding to taunts. In particular, the Board considered the principal applicant’s explanations for why she had failed to mention that her husband had gone to a hospital to seek treatment following the incident, and why she did not have documentary evidence corroborating the visit. The Board rejected the principal applicant’s explanation that she was under stress when she prepared the PIF and that the hospital refused to provide her with a report: ¶13. ... I do not accept this explanation. If the third claimant had gone to the hospital the FC would have put the details in her PIF and there would have been a medical report that she could try and access. I conclude that the FC embellished the incident. 2. The Board also considered and rejected the principal applicant’s allegation that there were skinheads in the Czech police force. At paragraph 14 the Board held: ¶14. ... The FC could not provide any evidence to support this contention and there is nothing in the documentary evidence to corroborate this allegation. 3. The Board considered the principal applicant’s explanation for why she had failed to mention in her PIF that she had reported the 2001 attack on her to the police and that she subsequently followed up on that report to no avail — namely that, again, she was under stress when she prepared the PIF: ¶15. ... I do not accept this explanation. If the FC had gone to the police this would have been an important part of her story and she would have remembered that detail. I conclude that she did not go to the police on that occasion. 4. Finally, the Board considered the principal applicant’s evidence regarding whether she had lost a child following the attack on her in 2006. The applicant had mentioned this incident to the immigration officer upon arrival, but did not include it in her PIF or in her initial testimony. She provided details in response to questions from the Board. When asked Dunkova v. Canada Michael A. Kelen J. 155

why she initially had not included these details, the principal applicant stated that the person who helped her to complete her PIF must have missed it. At paragraph 16 the Board concluded: ¶16. ... I do not accept this explanation. The loss of the baby is certainly a very traumatic experience. If the FC lost a baby in the circumstances she described, she would certainly remember it and put it in the PIF and voluntarily testify about the matter. I am sympa- thetic to the loss of a baby, but if it was connected to discrimination or persecution it would have been in her PIF and included in her testimony. 9 At paragraph 17, the Board stated the law regarding when incidents of discrimination may singularly or cumulatively amount to persecution: ¶17. ... To be considered persecution, the mistreatment suffered or antici- pated must be serious. In order to determine whether a particular mistreatment would qualify as “serious”, one must examine what interest of the claimant might be harmed; and to what extent the subsistence, enjoyment, expression or exercise of that interest might be compromised. “Persecution”, for example, undefined in the Convention, has been ascribed the meaning of sustained or systemic violation of basic human rights demonstrative of a failure of state protection.1 In the case of Chan,2 La Forest J. (in dissent) reiter- ated that the essential question is whether the persecution alleged by the claimant threatens his or her basic human rights in a fundamental way. 10 Applying its evidentiary findings to the law, the Board concluded that the applicants had failed to establish persecution: ¶18. As mentioned above, I find that the FC has embellished many parts of her story. I find that this impacts the credibility of the incidents that she describes. I acknowledge that the documentary evidence3 shows that there is discrimination against the Roma and the claimants may have been discriminated against because of their ethnicity but because of the embellishment of the incidents I do not find that this rises to the level of persecution either singularly or cumulatively. 11 Finally, the Board found that the applicants had failed to provide persuasive evidence that they would face a risk to their lives, or of cruel and unusual treatment or punishment, or of torture, if they were to return to the Czech Republic.

1James C. Hathaway, The Law of Refugee Status (Toronto: Butterworths, 1991), pp. 104- 105, cited with approval in Chan v. Canada (Minister of Employment & Immigration), [1993] 3 F.C. 675 (Fed. C.A.). 2Chan v. Canada (Minister of Employment & Immigration), [1995] 3 S.C.R. 593 (S.C.C.); affirming Chan v. Canada (Minister of Employment & Immigration), [1993] 3 F.C. 675 (Fed. C.A.). 3Exhibit R/A-1, National Documentation Package — Czech Republic, March 30, 2009. 156 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d)

Legislation 12 Section 96 of the Act grants protection to Convention refugees: 96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or (b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country 96. A qualité de réfugié au sens de la Convention — le réfugié — la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance a` un groupe social ou de ses opinions politiques: a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays; b) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner. 13 Section 97 of the Act grants protection to persons whose removal from Can- ada would subject them personally to a risk to their life, or of cruel and unusual punishment, or to a danger of torture: 97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally (a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or (b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if (i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country, (ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country, (iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and Dunkova v. Canada Michael A. Kelen J. 157

(iv) the risk is not caused by the inability of that country to provide adequate health or medical care. 97. (1) A qualité de personne a` protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nation- alité ou, si elle n’a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée: a) soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise a` la torture au sens de l’article premier de la Convention contre la torture; b) soit a` une menace a` sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant: (i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays, (ii) elle y est exposée en tout lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont généralement pas, (iii) la menace ou le risque ne résulte pas de sanctions légi- times — sauf celles infligées au mépris des normes interna- tionales — et inhérents a` celles-ci ou occasionnés par elles, (iv) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.

Issues 14 The applicants raise five issues: 1. Given the Board’s finding that the applicants did not have a well- founded fear of persecution under section 96 of the Act, did the Board analyze the country conditions evidence prior to determining that the applicants were not persons in need of protection under section 97 of the Act? 2. Did the Board err when it failed to conduct an analysis of whether the applicants are persons in need of protection, pursuant to section 97(1) of the Act, especially in view of the fact that the Board found that the applicants’ identity is that of Czech Roma and that they were discriminated against in the Czech Republic, and in view of the fact that the country conditions are such that the applicants might be at personal risk there? 3. Did the Board err by failing to meaningfully consider whether the various incidents of discrimination experienced by the applicants cumulatively amounted to persecution? 4. Did the Board ignore evidence, use irrelevant considerations, make an unreasonable decision, and fail to indicate the evidentiary basis upon which its decision was made? 158 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d)

5. As a result of the Minister’s public comments about Czech Roma, was there created a reasonable apprehension of bias, or institutional bias at the applicants’ hearing, and as a consequence was the Board biased or did the Board conduct an unfair hearing, in a tainted and biased environment, thereby denying the applicants’ right to natural justice and procedural fairness? 15 I will consider the first two issues together, considering whether the Board erred by failing to properly consider whether the applicants are persons in need of protection pursuant to section 97(1) of the Act. This will be Issue 1.

Standard of Review 16 In New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190 (S.C.C.), the Supreme Court of Canada held at paragraph 62 that the first step in conducting a standard of review analysis is to “ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of (deference) to be accorded with regard to a particular category of question”: see also Khosa v. Canada (Minister of Citizenship & Immigration), 2009 SCC 12, [2009] 1 S.C.R. 339 (S.C.C.), per Justice Binnie at paragraph 53. 17 It is clear as a result of Dunsmuir and Khosa that questions of fact or mixed fact and law are to be reviewed on a standard of reasonableness: see, for example, Liang at paragraph 15; and my decisions in Corzas Monjaras v. Canada (Minister of Citizenship & Immigration), 2010 FC 771 (F.C.) at paragraph 15; and Rodriguez Perez v. Canada (Minister of Citizenship & Immigration), 2009 FC 1029 (F.C.) at paragraph 25. 18 The determination of whether the Board has properly applied the evidence to the question of whether the applicant is a person in need of protection under section 97 of the Act is a question of mixed fact and law. It is therefore reviewable on a standard of reasonableness: see, for example, my decision in Amare v. Canada (Minister of Citizenship & Immigration), 2008 FC 228 (F.C.), at paragraph 10. 19 The determination of whether incidents of discrimination or harassment amount to persecution is also a question of mixed fact and law: Liang v. Canada (Minister of Citizenship & Immigration), 2008 FC 450 (F.C.) at paragraph 12. 20 In reviewing the Board’s decision using a standard of reasonableness, the Court will consider “the existence of justification, transparency and intelligibil- ity within the decision-making process” and “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: Dunsmuir, at paragraph 47; Khosa at paragraph 59. 21 The issue of whether the facts of the case give rise to a reasonable apprehension of bias is a an element of the duty of fairness to be determined on a standard of correctness: Geza v. Canada (Minister of Citizenship & Immigration), Dunkova v. Canada Michael A. Kelen J. 159

2006 FCA 124 (F.C.A.), at paragraph 44; Dunsmuir, above at paras. 55 and 90; and Khosa, above at paragraph 43.

Analysis Issue No. 1: Did the Board err by failing to properly consider whether the applicants are persons in need of protection pursuant to section 97(1) of the Act? 22 The evidence necessary to establish a refugee claim under section 96 of the Act is different from that required to establish a claim under section 97 of the Act. As I held in Amare, above, section 97 requires the Board to consider the generally known country conditions and how those might affect an applicant’s situation: ¶12. An analysis under section 97 is different from the Board’s determination of whether a refugee claimant is a Convention refugee under section 96 of the IRPA. Under section 96, the claimant must establish the existence of a well-founded fear of persecution tied to a Convention ground. However, under section 97 a claimant must show whether, on the balance of probabilities, their removal from Canada would subject them personally to the dangers and risks stipulated in paragraphs 97(1)(a) and (b) of the IRPA. This is a wholly objective analysis, and must be evaluated in light of all relevant considerations and with a view to the country’s human rights record: see Kandiah, above, at paragraph 18 per Martineau J. ¶13.. Further, the jurisprudence is clear that a negative credibility determination in respect of a refugee claim under section 96 is not necessarily disposi- tive of the consideration of subsection 97(1): see Bouaouni, above; Nyathi, above; Kandiah, above; and Ozdemir v. Canada (Minister of Citizenship & Immigration), 2004 FC 1008, 256 F.T.R. 154 (F.C.). For example, Mr. Jus- tice Martineau held in Kandiah at paragraph 18 that: ¶ 18 ... There may well be instances where a refugee claimant, whose identity is not disputed, is found to not to have a valid basis for his alleged subjective fear of persecution, but the country conditions are such that the claimant’s particular circumstances, make him/her a person in need of protection. It follows that a negative subjective fear determination, which may be determinative of a refugee claim under section 96 of the Act, is not necessarily determinative of a claim under subsection 97(1) of the Act. ... 23 In this case, the Board’s assessment of the applicants’ risks under section 97 was lacking. Although the Board made negative credibility determinations regarding the principal applicant, it accepted the applicants’ identity as Roma from the Czech Republic. The Board’s only comment regarding objective country 160 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d)

conditions for Roma in the Czech Republic consisted of an acknowledgment, at paragraph 18, that Roma face discrimination in the Czech Republic: ¶18. ... I acknowledge that the documentary evidence4 shows that there is discrimination against the Roma and the claimants may have been discriminated against because of their ethnicity but because of the embellishment of the incidents I do not find that this rises to the level of persecution either singularly or cumulatively. 24 The Board’s only consideration of whether the applicants would face a risk to their lives, or of cruel and unusual treatment or punishment, or of torture if they were to return to the Czech Republic, and thus of whether section 97(1) of the Act applies, is contained in the final paragraph of its decision: ¶19. ... There is also no persuasive evidence that, on a balance of probabilities, they are at risk to their lives or at risk of cruel and unusual treatment or punishment or torture if they return to the Czech Republic. 25 The Board had an obligation to address the question of the risks identified in section 97(1) that may be faced by the applicants if they return to the Czech Republic. The Board’s acceptance of the fact that the applicants were Roma constituted a sufficient link to documentary evidence regarding what the applicants claim is persecution of Roma in the Czech Republic. The Board further acknowledged that the documentary evidence revealed discrimination against Roma in the Czech Republic. 26 Before the Board, the applicant presented over 100 pages of documentary evidence reciting incident after incident of Roma being physically assaulted in the Czech Republic. One article, dated December 2007, reported on a Czech court hearing about racist attacks on “several Romani people” which caused serious injuries to Roma youth. Another article reported on a Czech senator and mayor of a district in the Czech Republic who publically spoke at a housing meeting of the mayor’s district about the “excessively multiplying Romanis” and using “dynamite” to blow them up as a means of solving problems in a Romani settlement. 27 The Amnesty International report for 2009 on the Czech Republic reported in August that four Roma were assaulted by Czech racists in a bar. The Board’s Issue Paper on State Protection in the Czech Republic, dated June 2009, found that the police have a negative view of the Roma and do not protect htem as they do other citizens. The Boards second issue paper, the Issue Paper on State Pro- tection in the Czech Republic, dated July 2009, set out the awful situation for the Roma with respect to: 1. societal discrimination; 2. inadequate housing;

4Exhibit R/A-1, National Documentation Package — Czech Republic, March 30, 2009. Dunkova v. Canada Michael A. Kelen J. 161

3. poor education; 4. high unemployment; and 5. far-right extremism. The issue paper describes physical attacks targeting Roma which result in serious injury. 28 Accordingly, the objective evidence before the Board discloses section 97 risks of personal injury to Roma in the Czech Republic, and the Board therefore had an obligation to consider the documentary evidence before it, to determine whether the objective evidence indicated that the ill treatment of people sharing the applicants’ profiles would subject the applicants personally to a section 97 risk in the Czech Republic: Kaleja v. Canada (Minister of Citizenship & Immi- gration), 2010 FC 252 (F.C.), at paras. 23-25. The failure of the Board to conduct this analysis constitutes a reviewable error. 29 In view of the Court’s finding, this application for judicial review will be allowed and the Court need not consider the third and fourth issues raised by the applicants. The Court will, however, nevertheless deal with the important issue of bias raised by the applicants.

Issue Regarding Bias: As a result of the Minister’s public comments about Czech Roma, was there created a reasonable apprehension of bias, or institutional bias at the applicants’ hearing, and as a consequence was the Board biased or did the Board conduct an unfair hearing, in a tainted and biased environment, thereby denying the applicants’ right to natural justice and procedural fairness? 30 The applicants submit that as a result of comments made by the Canadian Minister of Immigration in April 2009 there is a reasonable apprehension of bias on the part of members of the Board with regard to their determinations of refugee claims of claimants from the Czech Republic. 31 Procedural fairness requires that decisions be made free from a reasonable apprehension of bias by an impartial decision-maker: Baker v. Canada (Minister of Citizenship & Immigration), [1999] 2 S.C.R. 817 (S.C.C.) at paragraph 45. Allegations of bias are therefore serious and impugn the decision-making process and the decision-maker. 32 The test for determining the existence of a reasonable apprehension of bias was expressed by Justice Crampton in Dunova v. Canada (Minister of Citizenship & Immigration), 2010 FC 438 (F.C.): ¶48. The classic articulation of the test for what constitutes a reasonable apprehension of bias was enunciated by Justice de Grandpr´e in Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369 at 394. In the course of dissenting on the issue of whether the facts in that case gave rise to a reasonable apprehension of bias, Justice de Grandp´e ob- 162 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d)

served that “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.” He added that the “test is what would an informed person, viewing the matter realistically and practically — and having thought the matter through — conclude...” ¶49. In R. v. S. (R.D.), [1997] 3 S.C.R. 484, at paras. 111 to 113, Mr. Justice Cory adopted Justice de Grandpr´e’s statement of the test, observed that “the threshold for a finding of real or perceived bias is high”, and emphasized that “the reasonable person must be an informed person.” ¶50. In Wewaykum Indian Band v. Canada, [2003] 2 S.C.R. 259, at paragraph 76, the high test to be met when alleging bias was confirmed. In a unanimous judgment, the Supreme Court observed that “the standard refers to an apprehension of bias that rests on serious grounds, in light of the strong presumption of judicial impartiality.” The Court then proceeded to approv- ingly note that Justice de Grandpr´e added to “the now classical expression of the reasonable apprehension standard” when he observed: “The grounds for this apprehension must, however, be substantial, and I ... refus[e] to accept the suggestion that the test be related to the ‘very sensitive or scrupulous conscience’.” ¶51. In Geza, above, at paras. 52 -53, it was held that the approach described above applies to the determination of refugee claims by the Board, given the Board’s independence, its adjudicative procedure and functions, and the fact that its decisions affect the rights of claimants under the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. ... 33 The applicants submit the following “facts” would create a reasonable apprehension of bias in the mind a right-thinking person: 1. over one dozen comments by the Minister that Czech Roma are false refugee claimants demonstrate that he does not want Board members to make positive decisions in refugee cases involving Czech Roma; 2. the Board members depend on the Minister to appoint and reappoint them; 3. the Federal Court of Appeal in Kozak v. Canada (Minister of Citizenship and Immigration), 2006 FCA 124, found that the Board was biased against Roma in Hungary as a result of the “lead case” strategy adopted by the Board; 4. the acceptance rate for Roma refugee claimants from the Czech Republic consistently declined following the Minister’s comments. The applicant submits that the Board’s acceptance rate for Czech Roma refugee claimants was 97 percent in 2008. Following the Minister’s comments in April of 2009, the applicant submits that the Board’s acceptance rate for Czech Roma refugee claimants plummeted to zero percent. The applicant sub- Dunkova v. Canada Michael A. Kelen J. 163

mits that there was no improvement in country conditions for Czech Roma during that period. 34 An allegation of bias must be raised at the earliest possible opportunity; otherwise, the party waives the right to later raise bias as a ground for judicial review: Geza v. Canada (Minister of Citizenship & Immigration), 2006 FCA 124 (F.C.A.), at paragraph 66. See also Chamo v. Canada (Minister of Citizenship & Immigration), 2005 FC 1219, [2005] F.C.J. No. 1482 (F.C.), at paragraph 9; Singh v. Canada (Minister of Citizenship & Immigration), 2005 FC 35, [2005] F.C.J. No. 59 (F.C.), at paragraph 18; Ranganathan v. Canada (Minister of Citizenship & Immigration), 2003 FC 1367, [2003] F.C.J. No. 1741 (F.C.), at paragraph 15. 35 The Board hearing in this case took place on January 22, 2010. The applicants were represented by counsel. The Court has no doubt that counsel knew about the Minister’s public comments about Czech Roma being false refugee claimants. Counsel had a duty to raise the bias objection at the hearing on Janu- ary 22 or waive the right to do so after the hearing if the applicants lost their refugee claim. 36 The Court is remitting this claim back to the Board for determination for failure to conduct an adequate section 97 analysis. The applicant can then raise the issue of bias before the Board at the new hearing. The Court and the parties are aware of three recent decisions from this court which have dismissed the allegation of a reasonable apprehension of bias based on the same ground as in this case.

Conclusion 37 I agree with the applicants’ argument that the Board had a duty to canvass the country conditions materials if it came to the conclusion that the applicants are members of a potentially persecuted group. The Board dismissed this claim on the sole basis of credibility. Once it accepted the applicants’ identity as Czech Roma, the Board had a duty to consider whether that identity would subject the applicants to persecution or to the treatment specified in section 97(1) of the Act. By failing to specify which aspects of the claimants’ evidence it was rejecting and by failing to consider the objective documentary evidence, the Board therefore made a reviewable error. The decision of the Board must be set aside and the matter referred to a differently constituted panel of the Board for redetermination.

Certified Question 38 Both parties advised the Court that this case does not raise a serious question of general importance which ought to be certified for an appeal. The Court agrees. 164 IMMIGRATION LAW REPORTER 95 Imm. L.R. (3d)

Judgment THIS COURT’S JUDGMENT is that: This application for judicial review is allowed and the matter is remitted to a different panel of the Board for redetermination. Application granted.