IMMIGRATION LAW REPORTER Fourth Series/Quatri`Eme S´Erie Recueil De Jurisprudence En Droit De L’Immigration VOLUME 1 (Cited 1 Imm

IMMIGRATION LAW REPORTER Fourth Series/Quatri`eme s´erie Recueil de jurisprudence en droit de l’immigration VOLUME 1 (Cited 1 Imm. L.R. (4th))

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[Indexed as: Mico v. Canada (Minister of Citizenship & Immigration)] Aleksander Mico, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-6477-10 2011 FC 964 James Russell J. Heard: May 31, 2011 Judgment: July 29, 2011 Immigration and citizenship –––– Refugee protection — Credibility –––– Ap- plicant was citizen of Albania — Applicant and his brother were beaten by members of Labi family and were hospitalized — Applicant’s cousin shot member of Labi family — Labi family sent message to applicant’s family to declare blood feud — In December 2008, applicant left Albania and arrived in Can- ada — In January 2009, applicant made claim for refugee protection — Board refused applicant’s application — Board referred to psychiatric report stating that applicant suffered from post-traumatic stress disorder (PTSD) and noted that his allegations were based on his own reporting of events, which board found to be not credible — Applicant brought application for judicial review — Application granted — Main problem was board’s failure to grasp significance of psychological evidence or to explain why it was not taken into account when assessing discrepancies in applicant’s evidence and applicant’s explanations for those discrepancies — Board did not address whether symptoms of PTSD could have impacted applicant’s powers of recall and ability to give evidence — Board was obliged to say why doctor’s evidence regarding applicant’s mental state should not have affected its conclusions — Had board properly addressed these matters, there was no telling whether it would have reached same decision. Cases considered by James Russell J.: Aguebor v. Canada (Minister of Employment & Immigration) (1993), 1993 Car- swellNat 303, (sub nom. Aguebor v. Ministre de l’Emploi & de 2 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

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 Car- swellNat 1367, 2008 FC 571, [2008] F.C.J. No. 732 (F.C.) — referred to Arizaj v. Canada (Minister of Citizenship & Immigration) (2008), 2008 CF 774, 2008 CarswellNat 2824, 2008 FC 774, 2008 CarswellNat 2043, [2008] F.C.J. No. 978 (F.C.) — considered Atay v. Canada (Minister of Citizenship & Immigration) (2008), 2008 Car- swellNat 351, 2008 FC 201, 2008 CarswellNat 1002, 2008 CF 201, [2008] F.C.J. No. 251 (F.C.) — considered Ched c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2010), 2010 CF 1338, 2010 CarswellNat 5018, 2010 FC 1338, 2010 CarswellNat 5687 (F.C.) — referred to Csonka v. Canada (Minister of Employment & Immigration) (2001), 2001 Car- swellNat 1859, 2001 FCT 915, 16 Imm. L.R. (3d) 183, [2001] F.C.J. No. 1294 (Fed. T.D.) — considered Hilo v. Canada (Minister of Employment & Immigration) (1991), 15 Imm. L.R. (2d) 199, 130 N.R. 236, 1991 CarswellNat 96, [1991] F.C.J. No. 228 (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 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 Brunswick) 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.) — considered Rudaragi v. Canada (Minister of Citizenship & Immigration) (2006), 2006 FC 911, 2006 CarswellNat 2183, 2006 CF 911, 2006 CarswellNat 6080, [2006] F.C.J. No. 1157 (F.C.) — referred to Saha v. Canada (Minister of Citizenship & Immigration) (2009), 2009 Car- swellNat 686, 2009 FC 304, 2009 CarswellNat 1546, 2009 CF 304 (F.C.) — considered Saraci v. Canada (Minister of Citizenship & Immigration) (2005), 2005 FC 175, 2005 CarswellNat 294, 2005 CarswellNat 4870, 2005 CF 175 (F.C.) — considered Mico v. Canada (Minister of Citizenship & Immigration) James Russell J. 3

Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 72(1) — pursuant to s. 96 — considered s. 97 — considered

APPLICATION for judicial review of board’s decision rejecting applicant’s claim for refugee protection.

Jeffrey L. Goldman, for Applicant Melissa Mathieu, for Respondent

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 Refugee Protection Division (RPD) of the Immigra- tion and Refugee Board, dated 14 September 2010 (Decision), which refused the Applicant’s application to be deemed a Convention refugee or a person in need of protection under sections 96 and 97 of the Act.

Background 2 The Applicant is a citizen of Albania. His claim for refugee protection is based on his membership in a particular social group, namely his family. He alleges that his family is involved in a blood feud and that his life will be in danger if he returns to Albania. 3 This is not the Applicant’s first claim for refugee protection. In 1997, he made an unsuccessful claim for refugee protection in Greece, based on his political opinion. He returned to Albania in July 2006 and began a construction business with his brother. In August 2007, his brother and two workers were at a construction site when members of the Labi family approached them with the news that the construction team had no authority to work on that land. The Applicant’s brother telephoned the Applicant, who reported to the construction site. The Labis beat the Ap- plicant and his brother, and both men were hospitalized. During the fight, Hasan Labi disclosed that he had raped the Applicant’s sister. In revenge, the Applicant’s cousin shot and paralysed Hasan Labi’s son and fled to Greece for safety. Later that month, the Labis sent a messenger to the Applicant’s family to declare a blood feud. The Applicant immediately went into hiding at his uncle’s home in Tirana. With the assistance of a 4 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

smuggler, the Applicant left Albania in December 2008 and arrived in Canada on 14 December 2008. He made a claim for refugee protection on 5 January 2009. 4 The Applicant appeared before the RPD on 6 August 2010. He was represented by counsel and an interpreter was present. The RPD found that the Applicant lacked subjective fear and that his allegations regarding the existence of a blood feud were not credible. On this basis, it rejected the Applicant’s claim. This is the Decision under review.

Decision under Review 5 The RPD referred to a psychiatric report, dated 26 June 2010, which states that the Applicant suffers from post-traumatic stress disorder (PTSD). The RPD noted that the Applicant’s allegations as stated in this report are based solely on his own reporting of events, which the RPD found to be not credible for the following reasons. 6 First, the Applicant testified at the hearing that his cousin shot Hasan Labi’s son 3-4 days after he and his brother were assaulted at the construction site. A letter from the Peace Reconciliation Missionaries of Al- bania (Missionaries’ Letter), which was submitted as evidence by the Applicant, stated that the shooting took place two weeks after the beat- ing. The RPD found that this detracted from the Applicant’s credibility. It did not accept the Applicant’s explanation that he may have misre- membered the incident, given that it was the shooting which caused the Labis to declare the blood feud. The RPD found it reasonable to expect the Applicant’s evidence to be more consistent on this point. 7 Second, the Applicant testified at the hearing that Hasan Labi arrived at the construction site before he did. He later testified that Hasan Labi arrived at the site after he did. When challenged, he said that the evidence given later was correct. The RPD found that this unexplained inconsistency detracted from the Applicant’s credibility. 8 Third, the Applicant first testified that there was no contact between his family and the Labis after the assault at the construction site. He then testified that the Labis had sent a messenger to announce the declaration of the blood feud. Still later, he testified that his cousin shot Hasan Labi’s son after the assault. When questioned, the Applicant said that he had misunderstood the question. The RPD commented that the Applicant did not say that he misunderstood the question when it was first asked, although he knew that he could ask the RPD for clarification if need be. The RPD also observed that it was reasonable to expect that the Appli- Mico v. Canada (Minister of Citizenship & Immigration) James Russell J. 5

cant’s testimony in this regard, which was “not forthcoming,” should be “more spontaneous.” The RPD drew a negative inference with respect to the Applicant’s testimony on this point. 9 Fourth, in his Personal Information Form narrative (PIF), the Appli- cant, after talking about himself, his brother and his uncle, stated: “We contacted the blood feud organization [that is, the missionaries association] to try and help us.” The Applicant testified at the hearing that his uncle, and his uncle only, contacted this association on behalf of the family. The RPD found that the use of the pronoun “we” meant that the three men contacted the missionaries’ association and that this contradicted the Applicant’s testimony at the hearing. The RPD did not accept the Appli- cant’s explanation that “we” was meant to indicate that his uncle was dealing with the matter at the request of the Applicant’s mother and father. It found that this inconsistency detracted from the Applicant’s credibility. 10 Fifth, with respect to the timing of this contact with the missionaries’ association, the Applicant testified at the hearing that his uncle initiated contact in 2007. The Missionaries’ Letter reported the contact date as 2008. When questioned, the Applicant stated that he was mistaken. The RPD rejected this explanation, reasoning that the Labis’ unwillingness to end the feud is material to the Applicant’s claim and his evidence in this regard should have been more consistent. This detracted from the Appli- cant’s credibility. 11 Sixth, the Applicant testified at the hearing that his sister was raped 11 years prior to the hearing. The Missionaries’ Letter states that the rape took place 11 years before the assault at the construction site. When questioned, the Applicant suggested that perhaps the letter was inaccu- rate. The RPD found that it was reasonable to expect that the Applicant, who was represented by counsel, would have remedied such an inaccuracy by getting another letter or by bringing the inaccuracy to the RPD’s attention on his own initiative. The RPD drew a negative inference with respect to the Applicant’s credibility. 12 Seventh, the Applicant stated in his PIF that the Labis came looking for him when he was hiding out in Tirana. He stated twice at the hearing, however, that the Labis did not try to contact him after the assault at the construction site. When questioned, the Applicant said that he thought that the RPD, at the hearing, was asking him if the Labis tried to have a conversation with him. The RPD rejected this explanation because its question to the Applicant was whether or not the Labis tried to contact 6 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

him, an inquiry that was not limited to having a conversation with him. The RPD drew a negative inference on this point. 13 Finally, the Applicant testified at the hearing that his uncle asked the police for help at least twice after the assault at the construction site and he was sent away because, in the authorities’ view, there was nothing to be done. The Applicant was asked why he did not report this in his PIF, to which he replied that the requests for help occurred after he had completed his PIF. This contradicted his earlier testimony that he was unsure as to precisely when he learned that his uncle had asked the police for help. Moreover, the RPD noted, the Applicant could have amended his PIF to include this information; he had, in fact, amended his PIF as late as the day of the hearing. Although the Applicant stated that he did not realize that this information was important, the PIF is clear that the Ap- plicant should provide details of attempts to seek state protection. As the existence of state protection is key to the success of the Applicant’s refugee claim, the RPD found that an inconsistency on this point detracted from the Applicant’s credibility. 14 In addition to the credibility findings, the RPD also noted that, although the Applicant passed through Italy, the Netherlands and Mexico on his way to Canada, he failed to seek refugee protection in any of those three countries. This caused the RPD to draw a negative inference with respect to the Applicant’s subjective fear of persecution. It found that, if the Applicant’s fear was genuine, he would have sought protection at the earliest opportunity and would not have waited until he arrived in Can- ada. It did not accept the Applicant’s explanation that he wanted to come to Canada where there is democracy and where he would be far from Albania. The RPD observed that the Applicant, years before, had claimed refugee protection in Greece. Clearly, then, he had “no problem seeking protection in a nearby European country.” 15 In light of the negative credibility findings and the inconsistencies regarding the Missionaries’ Letter, the RPD gave this letter “little weight.” Also, the Applicant’s medical documents detailing the injuries he sustained in the assault on the construction site did not indicate who caused the injuries, nor did they state that the Applicant was involved in a blood feud. On this basis, the RPD similarly gave them little weight. 16 The RPD concluded that the Applicant lacked credibility in general and this finding tainted all of his relevant testimony. The RPD found that the Applicant’s family was not involved in a blood feud, therefore the Applicant was not in danger of being persecuted as a member of a partic- Mico v. Canada (Minister of Citizenship & Immigration) James Russell J. 7

ular social group under section 96 or of being subjected to any of the risks enumerated in section 97 of the Act.

Issues 17 The Applicant raises a number of issues, which can be summarized in the following manner: i. Whether the RPD erred in its credibility findings; and ii. Whether the RPD erred by ignoring relevant evidence, relying on irrelevant evidence, misinterpreting the evidence and making erroneous findings of fact.

Statutory Provisions 18 The following provisions of the Act are applicable in these proceedings: Convention refugee 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. Person in need of protection 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, 8 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

(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 (iv) the risk is not caused by the inability of that country to provide adequate health or medical care. Person in need of protection (2) A person in Canada who is a member of a class of persons prescribed by the regulations as being in need of protection is also a person in need of protection. Définition de « réfugié » 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. Personne a` protéger 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 nationalité 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 Conven- tion 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, Mico v. Canada (Minister of Citizenship & Immigration) James Russell J. 9

(iii) la menace ou le risque ne résulte pas de sanctions légi- times — sauf celles infligées au mépris des normes internationales — 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. Personne a` protéger (2) A egalement´ qualité de personne a` protéger la personne qui se trouve au Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par règlement le besoin de protection.

Standard of Review 19 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. 20 Both credibility assessment and treatment of the evidence are within the RPD’s areas of expertise and, therefore, deserving of deference. They are reviewable on a standard of reasonableness. See Aguebor v. Canada (Minister of Employment & Immigration) (1993), 160 N.R. 315, 42 A.C.W.S. (3d) 886 (Fed. C.A.); Aguirre v. Canada (Minister of Citizenship & Immigration), 2008 FC 571 (F.C.) at paragraph 14; Dun- smuir, above, at paragraphs 51 and 53; and Ched c. Canada (Ministre de la Citoyennet´e & de l’Immigration), 2010 FC 1338 (F.C.) at paragraph 11. 21 When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, trans- parency and intelligibility within the decisionmaking 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 Dun- smuir, above, at paragraph 47; and Khosa v. Canada (Minister of Citizenship & Immigration), 2009 SCC 12 (S.C.C.) at paragraph 59. Put another way, the Court should intervene only if the Decision was unrea- 10 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

sonable 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 The RPD’s Credibility Findings Disregard the Opinion Presented in the Psychological Report 22 The Applicant argues that the RPD failed to consider that the trauma he suffered could lead to psychological effects that would impair his ability to testify, despite being asked specifically to do so. 23 The psychological assessment by Dr. Gerald M. Devins, Ph.D., C.Psych, concludes that the Applicant “satisfies diagnostic criteria for major depressive episode of moderate severity (296.22) and chronic post- traumatic stress disorder (309.81) in the American Psychiatric Associa- tion’s Diagnostic and Statistical Manual of Mental Disorders ....” 24 Dr. Devins interviewed the Applicant, at which time the Applicant experienced flashbacks and desperation and had concentration problems, which made it difficult for him to focus. Other stress-related symptoms identified included memory problems, which, along with concentration problems, are common among people exposed to traumatic stress. He elaborated: [The Applicant] confuses dates and details of past events; he forgets names, telephone numbers, addresses and appointments .... Difficul- ties are exacerbated under pressure, such as arises in the high-stakes context of a Refugee Hearing. Symptoms can take the form of difficulty understanding questions, requests for questions to be repeated or rephrased, inability to retrieve specific details of the past, or an apparent inability to formulate a coherent response. Should such problems become evident, it will be important to understand that they likely reflect the disorganizing effects of traumatic stress rather than an effort to evade or obfuscate. 25 The Applicant submits that the RPD’s expectation, reiterated throughout the Decision, that his evidence should be more consistent is unreasonable in light of Dr. Devins’ evaluation. Although there is a presumption that the RPD considered all evidence, including the psychological report, as Justice Yves de Montigny observed in Saraci v. Canada Mico v. Canada (Minister of Citizenship & Immigration) James Russell J. 11

(Minister of Citizenship & Immigration), 2005 FC 175 (F.C.) at paragraphs 33-34: “... the more important the evidence which is not specifically mentioned and analysed, the more likely it is that a reviewing court may infer from the failure to mention the evidence that it was overlooked.” A careful reading of the tribunal’s decision shows that many aspects of the applicant’s evidence were overlooked, or ignored. It is equally disturbing to see that the Board failed to comment on important, or relevant, material evidence. 26 The RPD’s Decision is based entirely on credibility. In Csonka v. Canada (Minister of Employment & Immigration), 2001 FCT 915 (Fed. T.D.) at paragraph 29, Justice Fran¸cois Lemieux of this Court stated that a failure of the tribunal to discuss the content of the psychological report, which identified severe PTSD, warrants setting aside the decision based on credibility findings. What warrants setting aside the decision in this respect is the failure of the tribunal to mention and consider the psychological report which accompanied his counsel’s written submissions. In this respect, I follow Justice Denault in Khawaja v. The Minister of Em- ployment and Immigration (1999), 172 F.T.R. 287, who found a tribunal was wrong to conclude that a claimant was not credible without taking into account and without discussing the content of the psychological report which identified severe Post-traumatic Stress Disorder. 27 The Applicant contends that, while the RPD has clearly stated why it found him not credible, it never properly addressed evidence indicating that the Applicant was traumatized and, as such, could not remember incidents as precisely as the RPD required. The Decision’s simple reference to a psychological report addressing PTSD lacks meaningful discussion and therefore is insufficient. The RPD had a duty to consider whether the psychological circumstances might help explain an omission, lack of detail or confusion regarding the events if these are the exact cognitive errors referred to in the psychologist’s report. See Rudaragi v. Canada (Minister of Citizenship & Immigration), 2006 FC 911 (F.C.) at paragraph 6. 28 In Atay v. Canada (Minister of Citizenship & Immigration), 2008 FC 201 (F.C.), Justice John O’Keefe of this Court found that the RPD’s failure to deal with a very similarly worded report, also authored by Dr. 12 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

Devins, rendered the decision unreasonable. Justice O’Keefe observed at paragraphs 30-32: Of the cases put forward by the applicant, I find the case of Fidan above, very helpful. That case dealt with a situation almost identical to the present one. In that case, the Board mentioned the psychological report, and accepted the diagnosis of posttraumatic stress disorder, but stated that in light of their credibility findings found [sic] that the mental disorder did not have any relevance to the applicant’s well-founded fear of persecution (Fidan above at paragraph 6). The Court in Fidan above, relied on C.A. v. Canada (Minister of Citizen- ship and Immigration), [1997] F.C.J. No. 1082 for the proposition that the psychological report had to be considered in assessing the applicant’s credibility as credibility was central to the Board’s decision and the information contained in the report was relevant to this assessment. The Court in Fidan above, stated at paragraph 12: In this case, credibility was also the “linchpin” to the Board’s decision. Nonetheless, the Board failed to indicate, how, if at all, the psychological report was considered when making its credibility finding. The Board was obliged to do more than merely state that it had “considered” the report. It was obliged to provide some meaningful discussion as to how it had taken account of the applicant’s serious medical condition before it made its negative credibility finding. The failure to do so in this case constitutes a reviewable error and justified the matter being returned to a newly appointed Board. In my opinion, the same principle is true in the present case. The Board’s negative credibility finding was central to its decision. I accept the psychologist’s opinion that the claimant suffers from “chronic posttraumatic stress disorder”. How- ever, given my finding that the claimant lacks credibility respecting the central elements of his refugee protection claim and based upon the documentary evidence before me, I find that this psychological dysfunction is not related to the claimant’s alleged past mistreatment at the hand of Sunni Muslims, Turkish nationalists and the Turkish police or security forces, and as such this Psycho- logical Assessment does not assist the claimant in his refugee protection claim. As the contents of the psychological report were relevant to the Board’s credibility findings, the Board should have taken the time to consider how the applicant’s medical condition affected his beha- Mico v. Canada (Minister of Citizenship & Immigration) James Russell J. 13

viour before making its credibility finding. As the Board did not do this, I have no way of knowing what the Board’s credibility finding would have been had the report been considered first. I am of the view that the Board made a reviewable error. 29 The Applicant submits that, in the instant case, the RPD failed even to mention his mental condition, which itself is sufficient reason for this Court to find that the credibility findings were unreasonable.

The Respondent The Credibility Findings Are Reasonable 30 The RPD’s findings regarding the credibility and plausibility of the evidence were open to it, based on the record. The Applicant must prove his claim through the provision of credible and trustworthy evidence. The RPD is in the best position to gauge the credibility of this evidence and to draw the necessary inferences. See Aguebor, above. The Federal Court of Appeal has held that negative credibility findings are properly made as long as the tribunal gives reasons for doing so in “clear and unmistakable terms,” for instance, by providing the particulars of the lack of detail, inability to answers questions satisfactorily, inconsistencies and implausibility. See Hilo v. Canada (Minister of Employment & Immigration) (1991), 130 N.R. 236, [1991] F.C.J. No. 228 (Fed. C.A.). As the Decision indicates, the RPD clearly provided such particulars in the instant case. The RPD also clearly articulated its reasons for giving little weight to the Missionaries’ Letter and the medical reports. 31 The Applicant was given an opportunity to explain all of the inconsistencies noted in the Decision. His response was either that he could not remember (but yet he provided dates) or that he did not understand the question, to which the RPD reasonably replied that neither he nor his counsel ever asked the RPD to repeat the question or clarify. Also note- worthy is the RPD’s observation that the Applicant’s testimony concerning the frequency and nature of the contact between his family and the Labis was not forthcoming. 32 The RPD is entitled to make reasonable findings based on implausibilities, common sense and rationality, and it may reject evidence if it is not consistent with the probabilities affecting the case as a whole. See Aguebor, above. It did so in the instant case. 14 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

The Psychiatric Report Was Properly Considered 33 The RPD reviewed the psychiatric report and noted that it was cognizant of the many difficulties faced by the Applicant in establishing his claim. It took these considerations into account but still arrived at a general negative credibility finding based on the inconsistencies and contradictions in the Applicant’s evidence. 34 It is well established by the jurisprudence of this Court that a psychiatric report “cannot possibly serve as a cure-all for any and all deficiencies in a[n Applicant’s] testimony” and that, where such a report is submitted and there are concerns regarding the Applicant’s testimony, “opinion evidence is only as valid as the truth of the facts on which it is based.” See Arizaj v. Canada (Minister of Citizenship & Immigration), 2008 FC 774 (F.C.), at paragraphs 22 and 26. 35 It was reasonable for the RPD to conclude as it did. Where, as here, an expert accepts as fact certain assertions from an applicant, whom the tribunal has found to be not credible, it is reasonable for that tribunal to question the expert’s conclusions and to give little weight to the export report. As Justice Michael Phelan of this Court found in Saha v. Canada (Minister of Citizenship & Immigration), 2009 FC 304 (F.C.) at paragraph 16: It is within the RPD’s mandate to discount psychological evidence when the doctor merely regurgitates what the patient says are the reasons for his stress and then reaches a medical conclusion that the patient suffers stress because of those reasons. This is particularly the case where the RPD rejects the underlying facts of the diagnosis. In this case, there were no independent clinical studies performed to support the psychological assessment and no other medical basis for the diagnosis. 36 Dr. Devins met with the Applicant once for an undisclosed amount of time. The conclusions stated in the psychiatric report were based on information provided directly by the Applicant. No independent verification of the information was conducted. The RPD’s assessment of it was reasonable. 37 The Applicant has failed to demonstrate any way in which the RPD ignored relevant evidence or made erroneous findings with respect to the evidence. Although the Applicant takes issue with the manner in which the RPD weighed the evidence, this does not warrant the Court’s intervention. Mico v. Canada (Minister of Citizenship & Immigration) James Russell J. 15

The Applicant’s Reply 38 The Applicant argues that the RPD failed to address the clinical findings of the psychiatric report, which were based upon appropriate tests leading to a professional diagnosis. 39 The Decision states: “Counsel disclosed a psychiatric report ... which speaks inter alia about the claimant suffering post-traumatic stress disorder.” The report is much more detailed than this summary would indicate. It concludes that the Applicant suffers from depression and PTSD and that he requires mental-health treatment. The RPD did not consider any of the evidence supporting this clinical finding and did not refute any of the psychological findings. 40 In paragraph 4 of the Decision, the RPD states it is cognizant of the many difficulties faced by the Applicant and lists those difficulties: cultural actors; the milieu of the hearing room; and the stress inherent in responding to oral questions through an interpreter. It then confirms that it “has taken these considerations into account in arriving at negative credibility findings.” The Applicant contends that, although the RPD considered the three difficulties listed, it seems clear that it ignored the PTSD findings, which were not included in the list. 41 Contrary to the Respondent’s submissions, Dr. Devins did not merely regurgitate what the Applicant claims are the reasons for his mental condition. The doctor tested the Applicant, identified specific psychological symptoms and arrived at a specific clinical diagnosis based on specific criteria. The Respondent has not identified any specific evidence to suggest that independent verification of information is required for a psychological finding. This argument is without merit. Nevertheless, the Appli- cant submits that Dr. Devins is independent of the Applicant. Therefore, the information he discovered constitutes an independent verification of the relevant psychological information. 42 If the RPD wishes to dispute expert psychological findings (as opposed to evidence that goes to credibility), it must do so expressly. As it has failed to do so in the instant case, the Decision cannot stand.

Analysis 43 The Applicant has raised a number of conceptual issues but the focus of this application is the RPD’s failure to deal adequately with the psychological report of Dr. Devins in its assessment of the Applicant’s credibility. 16 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

44 The RPD refers to the psychological report at paragraph 4 of the De- cision in the following way: Counsel disclosed a psychiatric report pertaining to the claimant, dated June 26, 2010, which speaks inter alia about the claimant suffering post-traumatic stress disorder. The panel is cognizant of the many difficulties faced by a claimant in establishing a claim, including cultural factors, the milieu of the hearing room, and the stress inherent in responding to oral questions through an interpreter. The panel has taken these considerations into account in arriving at negative credibility findings. With respect to the claimant’s allegations, as noted in the psychiatric report, giving rise to his refugee claim, the panel notes that these are based solely on the claimant’s evidence, which the panel has found, as noted below, not to be credible. 45 It is clear that the RPD misconceives the relevance and significance of the evidence contained in the psychological report. 46 As the RPD pointed out, the determinative issue was subjective fear and “the credibility of the claimant’s allegation of the existence of a blood feud between his family and the Labi family.” 47 The RPD found that the Applicant lacked credibility and subjective fear as a result of what it regarded as a series of inconsistencies and unacceptable explanations in the Applicant’s testimony. 48 In my view, some of the stated inconsistencies are not inconsistencies at all and are extremely weak findings by the RPD. For example, the RPD’s finding, at paragraph 14, that the use of the pronoun “we” in his PIF contradicted his testimony at the hearing that only his uncle contacted the blood feud organization and warranted a negative inference makes no sense to me: The Labi family’s unwillingness to reconcile and end the blood feud is material to the claimant’s fear of returning to Albania. With respect to the claimant’s family’s efforts to end the blood feud, the claimant testified that his uncle contacted a reconciliation association for help some time in 2008. He further testified that no one else in his family, including himself, had any contact with this association. The panel noted what the claimant declared in his PIF narrative, specifically: “My family and I split up in different directions. My brother and I fled to Tirana not where we stayed inside the home of a mater- nal uncle. We contacted the blood feud organization to try and help us....” The panel gave the claimant the opportunity to explain why, instead of saying his uncle contacted the organization, he indicated “we” immediately after speaking about his brother, his uncle and Mico v. Canada (Minister of Citizenship & Immigration) James Russell J. 17

himself. The claimant replied that when he stated “we”, he meant that his father and mother asked his uncle to deal with this. The panel is not satisfied by the claimant’s explanation because the PIF narrative provides no indication that he meant to say mother and father. The PIF is the claimant’s narrative and “we” includes him. The claimant’s inconsistent evidence with respect to the efforts made to resolve the blood feud detracts from his credibility. 49 The main problem with the Decision, however, is the RPD’s failure to grasp the significance of the psychological evidence or to explain why it was not taken into account when assessing the discrepancies in the Ap- plicant’s evidence and the explanations that the Applicant gave for those discrepancies. The RPD appears to leave out of account entirely the psychological report “with respect to the claimant’s allegations, as noted in the psychiatric report, giving rise to his refugee claim....” This is because “the panel notes that these are based solely on the claimant’s evidence, which the panel has found, as noted below, not to be credible.” Nowhere does the RPD address the issue of whether the symptoms of post-traumatic stress disorder described in the report could have impacted the Ap- plicant’s powers of recall and his ability to give evidence, which are highly material considerations for the RPD’s negative credibility findings based upon inconsistencies and its rejection of the Applicant’s explanation for those inconsistencies. In other words, the psychological report was not put forward as proof of persecution in Albania; its purpose was to alert the RPD to the Applicant’s current mental condition and the im- pact this might have upon his testimony. 50 It is well accepted by this court that the RPD is in the best position to gauge the credibility of evidence and to draw reasonable inferences from that evidence. See Aguebor, above. The RPD is entitled to make reasonable findings based on implausibilities, common sense and rationality, and it may reject evidence that is not consistent with the probabilities affecting the case as a whole. 51 As the Respondent points out, it is also well established that a psychological report cannot serve as a cure-all for any and all deficiencies in an applicant’s testimony and that “opinion evidence is only as valid as the truth of the facts on which it is based.” See Arizaj, above, at paragraphs 22 and 26. 52 The Respondent says: [I]t was only reasonable for the Board to find that the report was based on self-reporting of the Applicant. Mr. Devins (sic) met with 18 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

the Applicant on one occasion only and it is unclear how long this meeting lasted. The information used to draw the conclusions reached in this report was garnered directly from the Applicant. No independent verification of the information was conducted. The Board’s assessment of the psychological evidence was proper and sufficient. 53 The Respondent is here providing reasons for ignoring or discounting Dr. Devins’ report that do not appear in the Decision. The RPD acknowledges receipt of the report “which speaks inter alia about the claimant suffering post-traumatic stress disorder.” The RPD does not address the difficulties that post-traumatic stress disorder might have upon the Appli- cant’s ability to testify and why, given some of Dr. Devins’ observations, the explanations given by the Applicant for those inconsistencies cannot reasonably be attributed to his psychological problems. 54 It has to be acknowledged that a psychological report of the kind submitted by Dr. Devins is not without its evidentiary problems. Just because a patient is suffering from psychological problems and manifests symptoms associated with those problems does not mean that the patient’s account of past persecution as the cause of those problems can be believed. However, Dr. Devins does not, in my view, base his diagnosis exclusively upon the Applicant’s own account of what has happened to him in Albania. Dr. Devins examined the Applicant and observed certain symptoms associated with post-traumatic stress disorder from what the Applicant said and from what the Applicant said about his present mental state: Mr. Mico experiences frequent headaches (“every day”). Headaches arise in his forehead and bilaterally in the temples. He described the pain as a “squeezing” sensation, accompanied by blurry vision and sometimes dizziness. Over-the-counter analgesics provide relief. Other stress-related problems include loss of appetite (he lost 12 Kg. over the past year), weakness, easy fatigability, and problems with concentration and memory. Intrusive ideation (i.e., memories of traumatic events and worries that erupt spontaneously into consciousness) occurs frequently and interferes with learning English, reading, and conversation. At times, his mind simply goes blank. Mr. Mico has become distracted and forgetful (e.g., he confuses dates and details of past events; he forgets names, telephone numbers, addresses, and appointments; he misplaces his keys, searching for them extensively before discovering that they have been in his pocket). Mico v. Canada (Minister of Citizenship & Immigration) James Russell J. 19

Concentration and memory problems are common among people exposed to traumatic stress. Difficulties are exacerbated under pressure, such as arises in the high-stakes context of a Refugee Hearing. Symptoms can take the form of difficulty understanding questions, requests for questions to be repeated or rephrased, inability to retrieve specific details of the past, or an apparent inability to formulate a coherent response. Should such problems become evident, it will be important to understand that the likely reflect the disorganizing effects of traumatic stress rather than an effort to evade or obfuscate. 55 In my view, then, this report was not a matter of Dr. Devins simply accepting the Applicant’s story. It was also based upon present observation. Its warnings about the Applicant’s mental confusion are highly relevant to the conclusions reached by the RPD about discrepancies in the Applicant’s testimony and the inadequacy of his explanations for those discrepancies. 56 The RPD was not obliged to accept Dr. Devins’ evidence as an explanation of the faults it found with the Applicant’s testimony, but it was obliged to say why Dr. Devins’ evidence regarding the Applicant’s current mental state should not affect its conclusions. The Respondent in this application has provided various reasons why Dr. Devins’ evidence could be left out of account. However, what the Respondent says in response to a judicial review application is not evidence that the report was considered for its possible relevance, or that the RPD was reasonable in not accepting advice contained in the report concerning the Applicant’s state of mind and his “problems with concentration and memory.” On the facts of this case, had the RPD properly addressed these matters, there is no telling whether it would have reached the same decision. This is the same situation that Justice O’Keefe faced in Atay, above: 32. If the contents of the psychological report were relevant to the Board’s credibility findings, the Board should have taken the time to consider how the applicant’s medical condition affected his beha- viour before making its credibility finding. As the Board did not do this, I have no way of knowing what the Board’s credibility findings would have been had the report being considered first. I am of the view that the Board made a reviewable error.

Judgment THIS COURT’S JUDGMENT is that 20 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

1. The application is allowed. The Decision is quashed and the matter is referred back to a differently constituted RPD for reconsideration in accordance with my reasons. 2. There is no question for certification. Application granted. Aguilar Valdes v. Canada (MCI) 21

[Indexed as: Aguilar Valdes v. Canada (Minister of Citizenship & Immigration)] Yesenia Nelly Aguilar Valdes and Esteban Guadalupe Hernandez Jimenez, Applicants and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-6580-10 2011 FC 959 James Russell J. Heard: June 1, 2011 Judgment: July 28, 2011 Immigration and citizenship –––– Refugee protection — Credibility –––– Claimants were couple and were both citizens of Mexico — They alleged that they both suffered persecution at hands of female claimant’s former common- law partner, C, whom she had child with — She alleged that he verbally, physically and sexually abused her and continued to harass and threaten her — Claimants were arrested in United States for drug-related offences; they pled guilty to charges — Female claimant submitted that she knew nothing of male claimant’s possession of drugs — Upon their release from prison, they were deported to Mexico — Female claimant alleged that C threatened to kill her; she reported it to Mexican police, who advised them that nothing could be done until they incurred physical injury — Claimants fled to Canada and applied for refugee protection — Immigration and Refugee Board rejected application pursuant to s. 98 of Immigration and Refugee Protection Act — Claimants did not mount defence in U.S. criminal court — Board drew negative inference from claimants’ failure to present any evidence to establish their innocence against drug- related charges — Regarding seriousness of crimes, board found that they were crimes for which maximum sentence of ten years or more could have been imposed had crimes been committed in Canada — Claimants applied for judicial review — Application granted — Without mentioning explanations provided by claimants as to why they pleaded guilty to charges, board simply held that they did not provide reasonable explanation for why such evidence was not presented in their defence — Board’s finding appeared to be based upon unproven and speculative premise that if claimants had not been involved in serious crimes, they would not have pleaded guilty — This premise was entirely speculative and unreasonable and cannot be basis for negative credibility finding — Female claimant’s amended narrative included numerous compelling reasons for pleading guilty despite her innocence; she explained that she pleaded guilty while 22 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th) detained and pregnant, and on advice of counsel — She also decided to plead guilty because detective had warned her that if she remained in detention too long, C would get custody of their son. Immigration and citizenship –––– Exclusion and removal — Inadmissible classes — Criminality. Cases considered by James Russell J.: Aguebor v. Canada (Minister of Employment & Immigration) (1993), 1993 Car- swellNat 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 Douglas v. Canada (Minister of Citizenship & Immigration) (2007), 2007 CF 740, 2007 CarswellNat 3037, 2007 FC 740, 2007 CarswellNat 1990, 63 Imm. L.R. (3d) 186 (F.C.) — referred to Gurajena v. Canada (Minister of Citizenship & Immigration) (2008), 2008 Car- swellNat 1703, 2008 FC 724, 2008 CarswellNat 5311, 2008 CF 724 (F.C.) — considered Jayasekara v. Canada (Minister of Citizenship & Immigration) (2008), 71 Imm. L.R. (3d) 23, 2008 FC 238, 2008 CarswellNat 2121, [2008] F.C.J. No. 299, 324 F.T.R. 62 (Eng.), 2008 CarswellNat 426, 2008 CF 238 (F.C.) — considered Jayasekara v. Canada (Minister of Citizenship & Immigration) (2008), 2008 CarswellNat 5525, 76 Imm. L.R. (3d) 159, 2008 CAF 404, 305 D.L.R. (4th) 630, 2008 FCA 404, 2008 CarswellNat 4718, 384 N.R. 293, [2009] 4 F.C.R. 164 (F.C.A.) — considered Khorasani v. Canada (Minister of Citizenship & Immigration) (2002), 2002 FCT 936, 2002 CarswellNat 2275, 2002 CFPI 936, 2002 CarswellNat 4146, [2002] F.C.J. No. 1219 (Fed. T.D.) — considered 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 Lai v. Canada (Minister of Citizenship & Immigration) (2005), 253 D.L.R. (4th) 606, 332 N.R. 344, 2005 CarswellNat 886, 2005 FCA 125, [2005] F.C.J. No. 584 (F.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 Brunswick) 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. Aguilar Valdes v. Canada (MCI) 23

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 Pushpanathan v. Canada (Minister of Employment & Immigration) (1998), 43 Imm. L.R. (2d) 117, 226 N.R. 201, (sub nom. Pushpanathan v. Canada (Minister of Citizenship & Immigration)) 160 D.L.R. (4th) 193, (sub nom. Pushpanathan v. Canada (Minister of Citizenship & Immigration)) [1998] 1 S.C.R. 982, 11 Admin. L.R. (3d) 1, 6 B.H.R.C. 387, [1999] I.N.L.R. 36, 1998 CarswellNat 830, 1998 CarswellNat 831, [1998] S.C.J. No. 46 (S.C.C.) — referred to R. v. Lavallee (1990), [1990] 4 W.W.R. 1, 67 Man. R. (2d) 1, [1990] 1 S.C.R. 852, 108 N.R. 321, 76 C.R. (3d) 329, 55 C.C.C. (3d) 97, 1990 CarswellMan 198, 1990 CarswellMan 377, 132 W.A.C. 243, EYB 1990-67181, [1990] S.C.J. No. 36 (S.C.C.) — considered Rihan v. Canada (Minister of Citizenship & Immigration) (2010), 2010 Car- swellNat 2951, 2010 CF 123, 362 F.T.R. 148 (Eng.), 2010 CarswellNat 225, 2010 FC 123, 88 Imm. L.R. (3d) 94, [2010] F.C.J. No. 134 (F.C.) — considered Xie v. Canada (Minister of Citizenship & Immigration) (2004), [2005] 1 F.C.R. 304, 2004 FCA 250, 2004 CarswellNat 2036, 37 Imm. L.R. (3d) 163, 2004 CarswellNat 3972, 243 D.L.R. (4th) 385, 2004 CAF 250, 325 N.R. 255, [2004] F.C.J. No. 1142 (F.C.A.) — referred to Zeng v. Canada (Minister of Citizenship & Immigration) (2008), 2008 Car- swellNat 2868, 2008 FC 956, 2008 CF 956, 2008 CarswellNat 4250, 333 F.T.R. 84 (Eng.), [2008] F.C.J. No. 1186 (F.C.) — considered Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 72(1) — pursuant to s. 98 — considered s. 101(2)(b) — considered Treaties considered: Convention Relating to the Status of Refugees, 1951, C.T.S. 1969/6; 189 U.N.T.S. 150 Article 1F(b) — considered

APPLICATION by claimants for judicial review of decision of Refugee Protec- tion Division of Immigration and Refugee Board excluding claimants from refugee protection pursuant to s. 98 of Immigration and Refugee Protection Act.

Leigh Salsberg, for Applicants Ian Hicks, for Respondent 24 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

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 Refugee Protection Division (RPD) of the Immigra- tion and Refugee Board, dated 14 October 2010 (Decision), which excluded the Applicants from refugee protection pursuant to section 98 of the Act.

Background 2 Both the Female Applicant and the Male Applicant are citizens of Mexico. They allege that they have both suffered persecution at the hands of the Female Applicant’s former common-law partner, Carlos, whom she met and with whom she began a relationship in 1999 in the U.S. The Female Applicant and Carlos have a child together. She alleges that he verbally, physically and sexually abused her throughout their six- year relationship and that he has continued to harass and threaten her despite the fact that they ended their relationship in 2005. Sometime thereafter, she and the Male Applicant began a relationship and took up residence, together with a roommate, in Ohio. 3 The Applicants separated for a period but, eventually, they reconciled and the Female Applicant moved back into their apartment. Two days later, they were arrested for drug-related offences. They pled guilty to the charges. They admit that the Male Applicant kept drugs in their apartment for his personal use and that their roommate also kept drugs there, likely for sale, but they claim that the Female Applicant knew nothing about them. 4 The Applicants pled guilty for various reasons explained in their Per- sonal Information Form (PIF) narratives. In particular, the Female Appli- cant was pregnant and had been advised by counsel that, if she waited for a trial, she would have to stay in jail for so long that she would have to give birth there. She was advised that the trial itself would be long and expensive with little chance of success and that, if she remained detained, Carlos might get custody of her son. 5 In February 2007, the Female Applicant was convicted of conspiracy to traffic in cocaine, possession of cocaine (two counts) and aggravated possession of drugs. She was sentenced to a prison term of nine months for each count to be served concurrently in the U.S. Similarly, in March 2007, the Male Applicant was convicted of trafficking in cocaine (three Aguilar Valdes v. Canada (MCI) James Russell J. 25

counts), possession of cocaine and aggravated possession of drugs and was sentenced to a prison term of nine months for each count to be served concurrently in the U.S. 6 Upon their release from prison, each Applicant was deported to Mex- ico, where they reunited and settled. The Female Applicant alleges that, a few months later, Carlos’ family informed her that Carlos was, himself, soon to be deported to Mexico and was threatening to kill both Appli- cants. Eventually, Carlos did return and continued to threaten the Appli- cants. They reported the threats to the Mexican police, who advised them that nothing could be done until the Applicants incurred physical injury. They moved to another state but were forced to return to Mexico City because the Female Applicant’s eldest child requires specialized medical treatment. 7 The Applicants fled to Canada in October 2008. Carlos currently lives with the Female Applicant’s relatives and, therefore, would easily be able to locate the Applicants. For this reason, they cannot return to Mexico. 8 The Applicants appeared before the RPD on 23 February, 26 May and 22 July in 2010. They were represented by counsel and an interpreter was present. The Minister intervened in the claims, being of the opinion that Article 1F(b) of the United Nations Convention Relating to the Sta- tus of Refugees was engaged due to the Applicants’ criminal activities in the U.S. 9 The RPD concluded that the Applicants should be excluded from the refugee protection afforded to Convention refugees and persons in need of protection because there were “serious reasons for considering that [they] committed a serious non-political crime (or crimes) within the meaning of Article 1F(b).” This is the Decision under review.

Decision Under Review 10 The RPD acknowledges the position of the Minister’s counsel that the convictions alone amount to serious reasons for considering that the Ap- plicants committed the crimes. However, there is additional evidence in the form of statements by two cooperating defendants implicating the Fe- male Applicant. 11 Nevertheless, the Applicants cannot be excluded if their evidence of the circumstances of their convictions is credible. The RPD concludes, 26 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

however, that the Applicants’ evidence is not credible for the following reasons. 12 First, the Applicants did not mount a defense against the drug-related charges. If the Applicants had had evidence to establish their innocence, it is reasonable to expect that they would have mounted a defense in the Ohio criminal court. The RPD drew a negative inference from the Appli- cant’s failure to present such evidence to the criminal court and from their failure to explain why they did not present such evidence. 13 Second, the RPD acknowledges the Applicants’ claim that their legal representation in the U.S. was inadequate but notes that this claim is un- supported by any evidence such as, for example, a complaint to the U.S. authorities. Regardless of the competency of counsel, the Applicants could have themselves presented exculpatory evidence to the criminal court. 14 Third, regarding the seriousness of the crimes, the RPD finds that they are crimes for which a maximum sentence of ten years or more could have been imposed had the crimes been committed in Canada. Al- though the amount of drugs in question was not large, a small quantity of drugs can amount to a serious crime in the context of Article 1F(b). 15 On this basis, the RPD determined that the Applicants were excluded from the protection afforded Convention refugees and persons in need of protection.

Issues 16 The Applicants formally raise the following issues: i. Whether the RPD’s credibility and plausibility findings were in error; and ii. Whether the RPD’s assessment of the seriousness of the offence was flawed, specifically with respect to its treatment of the factors relevant to this assessment. 17 The Applicants also raise the following issue in their argument: Whether the RPD unfairly deprived them of an opportunity to respond to its concerns. Aguilar Valdes v. Canada (MCI) James Russell J. 27

Statutory Provisions 18 The following provision of the Act is applicable in these proceedings: Exclusion — Refugee Convention 98. A person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention refugee or a person in need of protection. Exclusion par application de la Convention sur les réfugiés 98. La personne visée aux sections E ou F de l’article premier de la Convention sur les réfugiés ne peut avoir la qualité de réfugié ni de personne a` protéger. 19 The following provision of the United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6, Art. 1, is applicable in these proceedings: F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: [...] (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; [...] F. Les dispositions de cette Convention ne seront pas applicables aux personnes dont on aura des raisons sérieuses de penser: [...] b) Qu’elles ont commis un crime grave de droit commun en dehors du pays d’accueil avant d’y etreˆ admises comme réfugiés; [...]

Standard of Review 20 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. 21 Credibility and plausibility findings are within the RPD’s areas of expertise and, therefore, deserving of deference. They are reviewable on a standard of reasonableness. See Aguebor v. Canada (Minister of 28 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

Employment & Immigration) (1993), 160 N.R. 315, 42 A.C.W.S. (3d) 886 (Fed. C.A.); and Dunsmuir, above, at paragraphs 51 and 53. 22 On a question of exclusion under Article 1F of the Convention, the standard is reasonableness. This accords with Jayasekara v. Canada (Minister of Citizenship & Immigration), 2008 FC 238 (F.C.) at paragraph 10 [Jayasekara FC], wherein Justice Barry Strayer of this Court found: In the matter of the standard of review, I respectfully concur with other judges of this Court in the view that on a question of exclusion under Article 1F, the standard should be that of reasonableness. The decision which the Board must make is as to whether “there are serious reasons for considering that ... he has committed a serious non- political crime outside the country ....” This is a mixed question of fact and law and involves some discretion in assessing what is a “serious” reason: see M´edina v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No. 86 at paragraph 9, and other cases referred to therein. 23 When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, trans- parency and intelligibility within the decisionmaking 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 Dun- smuir, above, at paragraph 47; and Khosa v. Canada (Minister of Citizenship & Immigration), 2009 SCC 12 (S.C.C.) at paragraph 59. 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.” 24 In their arguments the Applicants contend that the RPD deprived them of their rightful opportunity to respond to its concerns. This is a question of fair process and is reviewable on a standard of correctness. See Khosa, above, at paragraph 43.

Arguments The Applicants 25 The Applicants argue that the RPD erred in three ways. First, its credibility and plausibility findings were unreasonable. Second, it deprived the Applicants of the opportunity to respond to these credibility and plausibility concerns. Third, it failed to consider most of the factors relevant to an assessment of the seriousness of the offences. Aguilar Valdes v. Canada (MCI) James Russell J. 29

Credibility Findings 26 The Applicants submit that the RPD’s credibility findings are per- verse. They fail to consider any of the traditional credibility factors such as contradictions, inconsistencies or evasion. Rather, the RPD’s reasons for excluding the Applicants under Article 1F(b) of the Convention are based almost entirely on a single plausibility finding: that, had the Appli- cants been innocent, they would not have pled guilty in the Ohio criminal court. 27 The RPD’s finding that the Applicants “did not provide a reasonable explanation” for failing to present to the Ohio criminal court evidence of their innocence, and choosing instead to plead guilty, wholly ignores the detailed evidence presented in the Female Applicant’s PIF, which addresses this very point. It indicates that the Female Applicant pled guilty because: she was pregnant and did not want to give birth in jail; she had been advised that a trial would be long and expensive with little chance of success; and she had been told and believed that, if she remained in detention too long, Carlos might get custody of their child. The Appli- cants submit that the spirit of the Gender Guidelines and the Supreme Court decision in R. v. Lavallee, [1990] 1 S.C.R. 852, [1990] S.C.J. No. 36 (S.C.C.), should have led the RPD to consider the actions of the Fe- male Applicant in her unique circumstances rather than on a reasonable person standard. 28 The Applicant contends that the RPD finds these explanations im- plausible because innocent people do not plead guilty. This is absurd. It is a “well-known reality” that, in a “slow and overburdened” justice system, people sometimes plead guilty even though they are innocent, as the Applicants’ evidence indicates. The RPD offers no explanation for why it adopts the contrary view, but it relies on this view as a justification for excluding the Applicants from refugee protection. 29 The presumption of the truth of the Applicants’ explanations was not rebutted. Indeed their explanations were never challenged. In light of this, the RPD’s finding that the Applicants were not credible is tanta- mount to ignoring evidence without explanation.

Credibility Concerns Demanded an Opportunity to Respond 30 The RPD clearly had concerns regarding the Applicants’ credibility and the plausibility of their explanations but it failed to raise them despite ample opportunity to do so during the three days of hearings. This represents a violation of the principles of natural justice. Had the RPD 30 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

advised the Applicants of its concerns with respect to the Applicants’ reasons for pleading guilty and for not filing a formal complaint against their U.S. counsel, the Applicants could have sought to address these concerns at the hearing. 31 The Applicants, however, having decided to rely on their unchal- lenged written evidence, had no way of knowing that the RPD doubted them and no opportunity to dispose of these doubts. To find the Appli- cants not credible, despite the fact that their credibility was never tested, is a violation of the principles of natural justice.

Assessment of the Seriousness of the Offence 32 The Applicants argue that the RPD’s assessment of the seriousness of the offences is “truly minimal.” The Handbook on Procedures and Crite- ria for Determining Refugee Status published by the United Nations High Commissioner for Refugees (UNHCR) states that to qualify as a serious crime pursuant to Article 1F(b), an offence must be a capital crime or a very grave punishable act. It also states that one of the main purposes of Article 1F(b) is to protect the community of the receiving country. Tribunals such as the RPD, in evaluating the seriousness of the offence, must consider “all relevant factors,” including mitigating circumstances and whether the claimant has served his or her sentence. The Federal Court of Appeal, in Jayasekara v. Canada (Minister of Citizenship & Immigration), 2008 FCA 404 (F.C.A.) [Jayasekara FCA], above, at paragraphs 27-29, held that, although the mere serving of the sentence does not mean that Article 1F(b) could not apply, the factors that govern the assessment are the continuing dangerousness of the claimant and the protection of the public. It further stated at paragraph 44 that: I believe there is a consensus among the courts that the interpretation of the exclusion clause in Article 1F(b) of the Convention, as regards the seriousness of a crime, requires an evaluation of the elements of the crime, the mode of prosecution, the penalty prescribed, the facts and the mitigating and aggravating circumstances underlying the conviction .... In other words, whatever presumption of seriousness may attach to a crime internationally or under the legislation of the receiving state, that presumption may be rebutted by reference to the above factors. Aguilar Valdes v. Canada (MCI) James Russell J. 31

The RPD’s assessment is inadequate. The only factor it considered was the length of the sentence that would have been imposed in Canada had such an offence been committed here. 33 Factors that should have been considered but were disregarded include: the Female Applicant’s completion of her sentence; the Male Ap- plicant’s subsequent abstention from drugs; the four years that have passed since the offences were committed; the Applicants’ lack of dangerousness and “criminal character”; the brevity of their actual sentences; and the Female Applicant’s ignorance of the presence of drugs in the apartment. Moreover, the RPD’s flawed credibility findings taint the assessment of the seriousness of the offence as they prevented the RPD from properly assessing the true character of each Applicant and the circumstances of the offences.

The Respondent The Applicants Improperly Invite the Court to Re-Weigh the Evidence 34 The Respondent contends that the RPD’s exclusion finding was reasonable. The crimes for which the Applicants were convicted met the requisite level of seriousness because of the length of sentence that could have been imposed under Canadian law. The RPD found that the Appli- cants had offered no persuasive evidence that the crimes were not serious, despite the fact that the amount of drugs involved was relatively small. 35 Although the Applicants claimed that they were innocent, they offered no evidence of their innocence or of the failure of the Ohio criminal court properly to carry out its duties with respect to the adjudication of the Applicants’ guilt or innocence. It was reasonably open to the RPD to prefer the documentary evidence establishing the Applicants’ convictions for serious criminality over their assertions of innocence.

The Applicants’ Reply 36 The Applicants argue that the Respondent’s submissions are unre- sponsive to the substance of their arguments. The Respondent merely re- states the RPD’s findings but in no way addresses the Applicants’ chal- lenges to the findings. 37 The Applicants’ submissions do not invite the Court to re-weigh the evidence. The Applicants acknowledge that they were convicted of their offences. The issue is that the RPD failed to consider factors beyond 32 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

their convictions, factors which this Court has held must be considered, such as the circumstances of the offence. The Respondent has been unable to point to any part of the Decision that addresses the circumstances of the offence.

The Respondent’s Further Memorandum 38 The Respondent further submits that the purpose of Article 1F(b) is not limited to protecting the community of the receiving country from dangerous persons. It also aims to ensure that the refugee system is not abused by criminals and that signatory nations should not become havens for those who have committed serious non-political offences. See Jayasekara FCA, above, at paragraphs 28-29; and Pushpanathan v. Canada (Minister of Employment & Immigration), [1998] 1 S.C.R. 982, [1998] S.C.J. No. 46 (S.C.C.) at paragraph 73. 39 The Federal Court of Appeal in Jayasekara FCA, above, at paragraph 40, recognized that, for the purposes of excluding a person from refugee protection on the basis of serious criminality, paragraph 101(2)(b) of the Act requires a conviction outside Canada which under Canadian law would be punishable by a maximum term of at least ten years. This, in the Federal Court of Appeal’s view, was a “strong indication from Parlia- ment that Canada, as a receiving state, considers crimes for which this kind of penalty is prescribed as serious crimes.” 40 The presumption of the seriousness of the crime can be rebutted based on an assessment of certain factors. See Jayasekara FCA, above, at paragraph 44. The Applicants argue that the evidence of convictions is rebuttable, relying on Rihan v. Canada (Minister of Citizenship & Immi- gration), 2010 FC 123 (F.C.), Gurajena v. Canada (Minister of Citizenship & Immigration), 2008 FC 724, (F.C.), and Zeng v. Canada (Minister of Citizenship & Immigration), 2008 FC 956 (F.C.). However, these cases concern claimants who were excluded from refugee protection based on an outstanding warrant. In the instant case, the Applicants were excluded on the basis of conviction by a court of competent jurisdiction. It was reasonable for the RPD to rely on these convictions as serious reasons for considering that the Applicants had committed serious non-political crimes. 41 Although the Applicants claim to be innocent, it was reasonable for the RPD to expect them to support their assertions with evidence of their lack of involvement in the drug-related offences for which they were charged. Aguilar Valdes v. Canada (MCI) James Russell J. 33

42 As the transcript of the hearing demonstrates, the Applicants elected not to present oral evidence on the issue of exclusion, preferring to rely instead on their PIF narratives and post-hearing submissions. They cannot now be heard to complain that they did not have an opportunity to address the exclusion issue at the hearing before the RPD. The jurisprudence of this Court indicates that the RPD is under no obligation to provide an applicant with the opportunity to address its plausibility findings. As Justice Edmond Blanchard stated in Khorasani v. Canada (Minister of Citizenship & Immigration), 2002 FCT 936 (Fed. T.D.) at paragraph 35: With respect to the argument that the applicants were not confronted with the Panel’s credibility concerns, I agree with the respondent’s submission that the Panel is under no obligation to alert an applicant, at the time of their hearing, of its concerns about weakness in testimony giving rise to implausibilities.

Analysis 43 The Decision is based upon narrow grounds. The RPD rejects the Ap- plicants’ evidence of non-involvement in the drug-related crimes as being non-credible for the following reasons: a. “Had there been evidence which established that the claimants were not involved in the crimes with which they were charged, it is reasonable to expect that the claimants would have presented this evidence to support a not guilty finding by the Ohio Courts.” (Paragraph 12 of the Decision); b. “The claimants did not provide a reasonable explanation for why such evidence was not presented in their defence.” (Paragraph 12 of the Decision); c. “Had there been exculpatory evidence that demonstrated the claimants were not involved in drug activities, I find that the Ohio court would not have ignored such evidence and thus, I find that it is reasonable to expect that the claimants would have presented such evidence in their own defence regardless of the competency of their counsel.” (Paragraph 13 of the Decision); d. “As submitted by Minister’s counsel, in order for Ohio courts to accept guilty pleas by these claimants, the elements of the crime must be made out, the plea must be voluntary and understood, and there must be no miscarriage of justice in accepting the plea. The claimants did not provide any evidence that the Ohio court ig- 34 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

nored these conditions in accepting their guilty pleas.” (Paragraph 13 of the Decision); e. The Applicants “did not provide a reasonable explanation for failing to present such evidence to support their innocence during the criminal proceedings in Ohio but, instead only presented such evidence in relation to the Minister’s intervention seeking to exclude them from refugee protection in Canada.” (Paragraph 13 of the Decision). 44 Taken as a whole, very little is being said here to support the finding by the RPD that the Applicants’ evidence of non-involvement was not credible. 45 Essentially, the RPD is saying that, if there was evidence of non-involvement in the crimes, the Applicants would not have pleaded guilty but would have presented that evidence to the Ohio court and pleaded not guilty. Without mentioning the explanations provided by the Applicants as to why they pleaded guilty to the charges in Ohio, the RPD simply says the “claimants did not provide a reasonable explanation for why such evidence was not presented in their defence.” This misses the point because some of the reasons were not related to evidentiary issues. 46 The RPD’s finding of no “reasonable explanation” is a conclusion without reasons. It appears to be based upon the unproven and speculative premise that if the Applicants had not been involved in serious crimes they would not have pleaded guilty in Ohio but would have proceeded with the trials and placed their evidence for non-involvement before the Ohio court. This premise is entirely speculative and unreasonable and cannot be the basis for a negative credibility finding. See Douglas v. Canada (Minister of Citizenship & Immigration), 2007 FC 740 (F.C.), at paragraph 21. Innocent people sometimes plead guilty for all kinds of reasons. The Applicants provided several reasons as to why they had chosen to plead guilty to the crimes in question. The RPD did not have to accept their evidence or the reasons that they gave for pleading guilty, but the RPD did have to say why their evidence and their explanations were unacceptable. A blanket statement that the “claimants did not provide a reasonable explanation for why such evidence was not presented in their defence” is not enough. It tells the Applicants and the Court nothing about why their evidence on this point was unacceptable. In the end, the RPD is simply saying that, if the Applicants had evidence of non-involvement in the crimes, they would not have pleaded guilty in Ohio, but no reason or evidentiary basis is given for this finding. Aguilar Valdes v. Canada (MCI) James Russell J. 35

47 The Female Applicant’s amended narrative included numerous compelling reasons for pleading guilty despite her innocence. She explained that she pleaded guilty while detained and pregnant, and on the advice of counsel. Her lawyer told her that since both her name and Esteban’s name were on the lease of the apartment, they would be found guilty “for sure.” He told her that waiting for trial would require her to remain in detention for a long time, would be expensive and had no chance of success anyway. He advised her that pleading guilty would allow her to be released before she was due to give birth. He advised that pleading guilty would help reduce the sentence of her common-law spouse, Mr. Her- nandez. She also decided to plead guilty because a detective had warned her that if she remained in detention too long, her son’s father (the agent of persecution) would get custody of their son. 48 In Jayasekara FCA, above, the Federal Court of Appeal provides at paragraph 44: I believe there is a consensus among the courts that the interpretation of the exclusion clause in Article 1F(b) of the Convention, as regards the seriousness of a crime, requires an evaluation of the elements of the crime, the mode of prosecution, the penalty prescribed, the facts and the mitigating and aggravating circumstances underlying the conviction: see S v. Refugee Status Appeals Authority, (N.Z. C.A.), supra; S and Others v. Secretary of State for the Home Department, [2006] EWCA Civ 1157(Royal Courts of Justice, England); Miguel- Miguel v. Gonzales, no. 05-15900, (U.S. Ct of Appeal, 9th circuit), August 29, 2007, at pages 10856 and 10858. In other words, whatever presumption of seriousness may attach to a crime internationally or under the legislation of the receiving state, that presumption may be rebutted by reference to the above factors. There is no balancing, however, with factors extraneous to the facts and circumstances underlying the conviction such as, for example, the risk of persecution in the state of origin: see Xie v. Canada, supra, at paragraph 38; INS v. Aguirre-Aguirre, supra, at page 11; T v. Home Sec- retary (1995), 1 W.L.R. 545, at pages 554-555 (English C.A.); Dhayakpa v. The Minister of Immigration and Ethnic Affairs, supra, at paragraph 24. 49 The RPD’s approach in the present case, its reliance upon speculative and unproven assumptions and its failure to address the evidence and reasons put forward by the Applicants as to why, notwithstanding their guilty pleas, they were not guilty of serious crimes, means that an appropriate analysis with reasons that accord with Jayasekara, above, was not 36 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th) conducted. Also, it means that there was no assessing and weighing of the competing factors. See Lai v. Canada (Minister of Citizenship & Im- migration), 2005 FCA 125 (F.C.A.) at paragraph 25; and Xie v. Canada (Minister of Citizenship & Immigration), 2004 FCA 250 (F.C.A.). This alone renders the Decision unreasonable and it should be returned for reconsideration.

Judgment THIS COURT’S JUDGMENT is that 1. The application is allowed. The decision is quashed and the matter is returned for reconsideration by a differently constituted RPD. 2. There is no question for certification. Application granted. Theophile v. Canada (MCI) 37

[Indexed as: Theophile v. Canada (Minister of Citizenship & Immigration)] Errol Theophile, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-6845-10 2011 FC 961 James Russell J. Heard: June 15, 2011 Judgment: July 28, 2011 Immigration and citizenship –––– Refugee protection — Practice and procedure in refugee claims — Refugee hearings — Powers and duties of board –––– Applicant was citizen of Dominica where he was member of political party — Applicant had received patronage job due to his political activity — Applicant alleged that he was targeted by members of different political party who caused him to be in car accident and assaulted him twice — Applicant claimed Convention refugee status and alleged he was person in need of protection — Claim was dismissed — Board found that applicant failed to prove continuity of risk and thus his subjective fear was not objectively well-founded — Applicant had been out of Dominica for three years and board found that he had not adduced any persuasive evidence that thugs were still looking for him — Board reviewed documentary evidence on country conditions and found that Dominica was functioning democracy and that evidence did not support allegation that people with patronage jobs were targeted systematically or widely in attacks by opposition members — Board found applicant’s documentary evidence did not establish threats to political supporters due to irrelevance or lack of timeliness — Board found there was not enough evidence that if applicant was returned to Dominica he would face risk to life, risk of torture or risk of cruel and unusual treatment — Applicant brought application for judicial review — Application granted — Board’s finding was not unreasonable as it related to s. 96 of Immigration and Refugee Protection Act — Applicant’s belief he was persecuted by opposition members was based on speculation, as his attackers never identified themselves — Board’s assessment of evidence was reasonable and it was entitled to find that applicant was not Convention refugee under ground of political persecution — Board erred by failing to perform proper s. 97 analysis — Applicant was found to be credible, so his evidence that he was attacked and required hospitalization on several occasions needed to be considered with reference to being person in need of protection — Board needed 38 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th) to assess medical evidence which it had accepted as credible — Board needed to address s. 97 claim of risk which has no relation to Convention grounds — Evi- dence applicant presented indicated some sort of targeting of him and proper analysis was required which did not refer to political connection. Cases considered by James Russell J.: Anthonimuthu v. Canada (Minister of Citizenship & Immigration) (2005), 2005 CarswellNat 267, 2005 FC 141, 45 Imm. L.R. (3d) 214, 2005 CarswellNat 3731, 2005 CF 141, [2005] F.C.J. No. 162 (F.C.) — considered Balakumar v. Canada (Minister of Citizenship & Immigration) (2008), 2008 FC 20, 2008 CarswellNat 38, 2008 CarswellNat 320, 2008 CF 20, [2008] F.C.J. No. 30 (F.C.) — considered Bouaouni v. Canada (Minister of Citizenship & Immigration) (2003), 2003 Car- swellNat 3266, 2003 CarswellNat 3267, 2003 FC 1211, 2003 CF 1211, [2003] F.C.J. No. 1540 (F.C.) — considered 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.) — referred to Ched c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2010), 2010 CF 1338, 2010 CarswellNat 5018, 2010 FC 1338, 2010 CarswellNat 5687 (F.C.) — referred to Florea v. Canada (Minister of Employment & Immigration) (June 11, 1993), Doc. A-1307-91, [1993] F.C.J. No. 598 (Fed. C.A.) — referred to Hinzman, Re (2007), 2007 CarswellNat 950, 2007 FCA 171, (sub nom. Hinzman v. Canada (Minister of Citizenship & Immigration)) 282 D.L.R. (4th) 413, 2007 CarswellNat 3596, 63 Imm. L.R. (3d) 13, 2007 CAF 171, (sub nom. Hinzman v. Canada (Minister of Citizenship & Immigration)) 362 N.R. 1, 61 Admin. L.R. (4th) 313, [2007] F.C.J. No. 584 (F.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 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 Brunswick) 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 Theophile v. Canada (MCI) James Russell J. 39

Vaval c. Canada (Ministre de la Citoyenneté & de l’Immigration) (2007), 2007 CarswellNat 412, 2007 CF 160, 2007 CarswellNat 2631, 2007 FC 160, 65 Imm. L.R. (3d) 123, [2007] A.C.F. No. 227, [2007] F.C.J. No. 227 (F.C.) — considered Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 72(1) — pursuant to s. 96 — considered s. 96 “réfugié — considered s. 97 — considered

APPLICATION for judicial review of refusal of Convention refugee claim.

Erin Roth, for Applicant Prathima Prashad, for Respondent

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 Refugee Protection Division (RPD) of the Immigra- tion and Refugee Board, dated 20 October 2010 (Decision), which refused the Applicant’s application to be deemed a Convention refugee or a person in need of protection under sections 96 and 97 of the Act.

Background 2 The Applicant is a citizen of Dominica and a former member of the Dominica Labour Party (DLP). He alleges that, in his country of origin, he was persecuted for political reasons by thugs belonging to an opposition political party, the United Workers Party (UWP). 3 The Applicant’s involvement in politics began in 1980. He cam- paigned for Roosevelt Douglas and, after Douglas was elected Prime Minister, the Applicant assumed responsibility for the Prime Minister’s personal security. After Douglas’s death in 2000, the Applicant approached the new prime minister, Pierre Charles, who assisted in securing for the Applicant the position of Senior Mechanical Engineer with the Dominica Air and Seaport Authority. The Applicant, although an experienced mechanic, lacked the education credentials that would usually be required for this position. It was a patronage appointment, and the Applicant was very well-paid. 40 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

4 The Applicant alleges that, in 2001, UWP thugs destroyed one of his vehicles and cut the brake lines of a second vehicle. As a result, the Ap- plicant was in a car accident and was hospitalized for three months. 5 He alleges that UWP thugs physically attacked him in 2006 when he and his friends were working on his newly constructed house. He was injured and required eight stitches. The Applicant suspects that these thugs were motivated by jealousy of the wealth that he enjoyed as a result of his position at the Air and Seaport Authority. He alleges that he was again attacked two months later by “ruffians” who invaded his house, beat him and then abandoned him. He regained consciousness three days later and remained in hospital for six weeks. 6 The Applicant alleges that UWP thugs attacked him again in 2007, this time with knives, and that he was hospitalized for nearly three weeks. The Applicant claims that he reported each of these incidents to the police but they did not process the complaints because the majority of senior officers had been appointed by the former UWP government. 7 The Applicant fled Dominica in November 2007. He entered the United States on a visitor’s visa in February 2008. In time, his visa ex- pired and he was detained until June 2008 when U.S. authorities ordered him to leave the country. He came to Canada and made his claim for refugee protection in July 2008. 8 The Applicant appeared before the RPD on 16 September 2010. He was represented by counsel and no interpreter was present. The RPD determined that he was neither a Convention refugee under section 96 of the Act nor a person in need of protection under section 97 of the Act. This is the Decision under review.

Decision Under Review Well-foundedness 9 The RPD found that the Applicant’s subjective fear was not objectively well-founded because he had failed to establish continuity of risk. The Decision states: The definition of Convention refugee or person in need of protection is “forward looking”. Where a claimant was subjected to persecution in the past it does not automatically lead to the conclusion that the claimant will necessarily endure persecution in the future. In order for past persecution to establish a valid basis for a prospective fear of persecution, there must be sufficient evidence to establish continuity Theophile v. Canada (MCI) James Russell J. 41

of risk. [See Mileva v Canada (Minister of Employment and Immi- gration) (1991), 15 IMM LR (2d) 204, [1991] 3 FC 398 (FCA).] 10 The Applicant has been outside Dominica for three years. He has adduced “no persuasive evidence” to indicate that UWP thugs are still actively looking for him or are planning to kill him if he returns to Domi- nica. In consequence of this failure to provide evidence of continuity of risk, the RPD found that the Applicant’s subjective fear of persecution was not well-founded.

Review of the Documentary Evidence 11 The RPD reviewed the country conditions documentation concerning Dominica for the year 2009. The RPD noted that Dominica is a mul- tiparty, parliamentary democracy. Observers from the Caribbean Com- munity (CARICOM) and the Organization of American States (OAS) declared that the 2009 parliamentary election was both fair and transparent, despite allegations from the opposition and nongovernmental organizations that basic democratic principles were not upheld during the election. The prime minister’s office oversees the Dominica Police, which is the country’s security force. This force effectively carries out its duty to maintain public order. Police corruption is not a problem. Those who wish to lodge a complaint against the police have access to a formal procedure, and no cases of misconduct were filed during 2009. The RPD found that the preponderance of the documentary evidence did not support a finding that low-level or high-level members or supporters of the DLP, who have been given plum appointments to government agencies as a result of political patronage, are being targeted by way of widespread or systematic attacks or violence at the hands of opposition thugs of the UWP. 12 The RPD also reviewed the Applicant’s documentary evidence, making specific reference to the content of each of five news articles referred to by the Applicant. The RPD concluded with respect to four of the five articles that each one fails to establish that thugs of the UWP have insti- gated or carried out violence aimed at members or supporters of the DLP. The fifth article, which suggests that the UWP may have been behind death threats issued against high-ranking government officials, was deemed of “very little probative value” because it is seven years old and because it does not establish that, at present, UWP thugs are systematically threatening or harming supporters of the DLP. Therefore, in the 42 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

RPD’s view, none of the articles establish an objective basis for the Ap- plicant’s fear of persecution at the hands of UWP thugs.

Conclusion 13 In light of the foregoing analysis, the RPD found that the Applicant was not a Convention refugee. Further, there was insufficient evidence to establish on a balance of probabilities that, if the Applicant were to return to Dominica today, he would face a risk to life, a risk of torture or a risk of cruel and unusual treatment or punishment at the hands of UWP thugs. Consequently, the Applicant’s claim under section 97 of the Act was also rejected.

Issues 14 The Applicant raises the following issues: i. Whether the RPD’s factual findings were reasonable; ii. Whether the RPD erred by ignoring objective evidence of the Ap- plicant’s risk; and iii. Whether the RPD deprived the Applicant of procedural fairness by failing to conduct a separate analysis under section 97.

Statutory Provisions 15 The following provisions of the Act are applicable in these proceedings: Convention refugee 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. Person in need of protection 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 Theophile v. Canada (MCI) James Russell J. 43

(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 (iv) the risk is not caused by the inability of that country to provide adequate health or medical care. Person in need of protection (2) A person in Canada who is a member of a class of persons prescribed by the regulations as being in need of protection is also a person in need of protection. Définition de « réfugié » 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. Personne a` protéger 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 nationalité 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 Conven- tion contre la torture; 44 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

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 légitimes — sauf celles infligées au mépris des normes internationales — 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. Personne a` protéger (2) A egalement´ qualité de personne a` protéger la personne qui se trouve au Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par règlement le besoin de protection.

Standard of Review 16 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. 17 The first and second issues concern the RPD’s fact finding and its treatment of the evidence. These are within the RPD’s areas of expertise and, therefore, deserving of deference. They are reviewable on a standard of reasonableness. See Dunsmuir, above, at paragraphs 51 and 53; and Ched c. Canada (Ministre de la Citoyennet´e & de l’Immigration), 2010 FC 1338 (F.C.), at paragraph 11. 18 When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, trans- parency and intelligibility 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 Dun- Theophile v. Canada (MCI) James Russell J. 45

smuir, above, at paragraph 47; and Khosa v. Canada (Minister of Citizenship & Immigration), 2009 SCC 12 (S.C.C.) at paragraph 59. 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.” 19 The third issue concerns the fair conduct of the hearing. Procedural fairness issues are reviewable on the correctness standard. See Khosa, above, at paragraph 43.

Arguments The Applicant The RPD’s Factual Findings Were Unreasonable 20 In setting out the well-foundedness of the Applicant’s claim, the RPD stated that, because it had been three years since the Applicant was last attacked (2007-2010), he would not be at risk if he returned to Dominica. The Applicant submits that this finding is unreasonable. The Applicant has not been attacked in three years because he was not present in Domi- nica to be attacked. While he was living in Dominica, the Applicant was attacked twice in 2001 and, despite a five-year period of relative peace, he was attacked multiple times between 2006 and 2007. The RPD acted unreasonably in concluding that the risk has disappeared in the past three years when it previously resumed after five years. The Member did not address this point.

The RPD Ignored Objective Evidence of the Applicant’s Risk 21 The Applicant contends that the RPD’s analysis relies exclusively on country conditions documentation. There is no indication that the RPD considered the evidence that the Applicant suffered actual harm. The RPD also failed to reconcile the fact of this harm with its conclusion that the Applicant would face no risk if he were to return to Dominica. 22 The Applicant submitted two reports concerning his injuries. The first was prepared by the doctor who treated him in Dominica. The second was prepared by a Canadian doctor who evaluated his injuries as well as photographs of the injuries and who opined that the injuries could have been incurred through the use of large knives. This evidence was clearly relevant to the Applicant’s refugee claim. The more significant the evidence is to the claim, the greater the error when the tribunal fails to refer to it. See Cepeda-Gutierrez v. Canada (Minister of Citizenship & Immi- 46 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

gration) (1998), 157 F.T.R. 35, [1998] F.C.J. No. 1425 (Fed. T.D.). The Applicant contends that this is particularly true when addressing claimant-specific documents that speak to the harm suffered. And, as the RPD conducted no credibility assessment, the RPD’s acceptance of the Appli- cant’s testimony is presumed.

The RPD Was Required to Conduct a Separate Section 97 Analysis 23 The Applicant argues that, regardless of its finding under section 96, the RPD was required to consider the Applicant’s risk to life or risk of cruel and unusual treatment under section 97. The RPD engaged in an improper analysis when it concluded that failure to make out a claim under section 96 results in failure of the section 97 claim as well. The RPD failed to provide adequate reasons for dismissing the section 97 analysis. 24 In Anthonimuthu v. Canada (Minister of Citizenship & Immigration), 2005 FC 141 (F.C.), at paragraphs 51-52, Justice Yves de Montigny stated: The Applicant also contends that the Refugee Division erred in not assessing her claim under section 97 of the IRPA, taking it for granted that she must fail on the grounds of a risk to like [sic] or to a risk of cruel and unusual treatment or punishment and danger to torture if she could not establish a well-founded fear of persecution. This Court has repeated on a number of occasions that the analysis under section 97 is different from the analysis required under section 96 and that claims made under both sections therefore warrant separate treatment. The Court said, in Bouaouni, supra, at paragraph 41: It follows that a negative credibility determination, which may be determinative of a refugee claim under s. 96 of the Act, is not necessarily determinative of a claim under subsection 97(1) of the Act. The elements required to establish a claim under section 97 differ from those required under section 96 of the Act where a well-founder [sic] fear of persecution to a convention ground must be established. Although the evidentiary basis may well be the same for both claims, it is essential that both claims be considered as separate. The only circumstance in which the Refugee Division may dispense with a separate section 97 analysis is when there is absolutely no evidence that could support a claim that a person is in need of protection: Soleimanian, 2004 CF 1660, at paragraph 22. Theophile v. Canada (MCI) James Russell J. 47

[emphasis added] Further, in Vaval c. Canada (Ministre de la Citoyennet´e & de l’Immigration), 2007 FC 160 (F.C.), at paragraph 12, Justice Simon No¨el stated that he was in “complete agreement” with Justice de Montigny’s observations, adding: It seems to me that the RPD assumed that its analysis of section 96 of the IRPA automatically applied to section 97. These are separate issues of law that must be treated differently. This was not the case in the analysis of section 97 of the IRPA. 25 The Applicant argues that the RPD was asked to consider the section 97 claim, which includes an assessment of his injuries and the risk of incurring further injuries if he were to return to Dominica. The Applicant was personally targeted; this was not a case of generalized risk. Moreo- ver, he reported these attacks to the police, who routinely lost any record of the complaint. If the RPD accepted the objective evidence that the Applicant was injured but rejected his claim that the injuries were the result of persecution for political reasons, then other risks needed to be evaluated under section 97. In failing to carry out the section 97 analysis, the RPD made a reviewable error.

The Respondent The Factual Findings Were Supported By the Evidence 26 Contrary to the Applicant’s suggestion, the RPD did not state that, because it had been three years since he was last attacked, the Applicant would not be at risk if returned to Dominica. Rather, the RPD found that the Applicant failed to provide evidence that his past persecution estab- lishes “continuity of risk.” The Applicant has adduced no evidence that he is being actively sought by UWP thugs or that they are planning to kill him in the event that he returns to Dominica. 27 The Applicant also errs in stating that there was evidence before the RPD to corroborate his testimony that political patronage can lead to violent retaliation. Quite the opposite is true. This is demonstrated in the RPD’s careful review of the five articles submitted by the Applicant and its findings that they do not support the Applicant’s claim. 28 The RPD is entitled to prefer documentary evidence to that of the Applicant, even where it has found the Applicant to be credible. The RPD weighed the evidence and came to a reasonable Decision. The Ap- 48 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

plicant simply disagrees with the outcome, which provides no grounds for the intervention of the Court.

The RPD’s Decision Was Reasonable 29 The Respondent submits that the RPD did not ignore the Applicant’s medical evidence. While the RPD did not make specific mention of it, it did mention the alleged incidents that caused the Applicant’s injuries as well as the Applicant’s allegations against the UWP thugs. 30 This medical evidence concerned incidents that had occurred in the past. The RPD clearly stated that the analysis under sections 96 and 97 was “forward looking.” The medical evidence did not demonstrate that the Applicant is currently in need of protection. Indeed, the Applicant adduced no evidence to show that UWP thugs have been actively looking for him or are planning to kill him if he returns to Dominica. Further- more, while the RPD made no adverse credibility finding, it did find that there was no persuasive evidence to suggest that DLP supporters who had been given “plum” patronage appointments to government agencies were targeted or systemically attacked by opposition thugs of the UWP. In the absence of continuity of risk, the RPD reasonably found that the claim had not been established. The need for the RPD to refer in its reasons to medical reports depends on the quality of that evidence and its importance to the claim. Since the RPD was not persuaded that the Ap- plicant was targeted by UWP thugs as a result of his patronage appointment, this evidence was not central to the Applicant’s claim. 31 In contrast, the country conditions documentation, which did not support the Applicant’s claims, was of primary relevance. The RPD acted reasonably in preferring it to the Applicant’s evidence, even if it found the Applicant to be trustworthy and credible. 32 Finally, the RPD is presumed to have taken all of the evidence into consideration whether or not it indicates having done so in its reasons, unless the contrary is shown. See Florea v. Canada (Minister of Employment & Immigration), [1993] F.C.J. No. 598 (Fed. C.A.).

The Section 97 Analysis Was Adequate 33 As part of its section 96 analysis, the RPD engaged in a detailed review of the country conditions documentation as well as the Applicant’s own documentary evidence. It was reasonable for the RPD to conclude, based on the same reasons, that there was insufficient evidence to estab- Theophile v. Canada (MCI) James Russell J. 49

lish on a balance of probabilities that the Applicant was objectively at risk in Dominica. 34 In Balakumar v. Canada (Minister of Citizenship & Immigration), 2008 FC 20 (F.C.), at paragraph 13, Justice Michael Phelan of this Court stated: It is not necessary that there be a rigid bright line between the s. 96 and s. 97 considerations. A finding that the objective element of s. 96 had not been met could, depending on the circumstances, dispose of the s. 97 issue as well. However, the rejection of the subjective element of s. 96 does not entitle the Board to ignore the objective element of fear particularly in respect of s. 97. The form in which that consideration occurs is not one which the Court should direct — what is important is that it be done and appear to be done. 35 Therefore, it was reasonable for the RPD to find that for the same reasons it articulated in its section 96 analysis — which took into account the subjective and objective evidence — that there was insufficient evidence to support a section 97 finding of risk to the Applicant. 36 Notably, the Applicant obtained his patronage position by appealing directly to the Prime Minister of Dominica, Pierre Charles. As the RPD noted, the Prime Minister’s office oversees the Dominica Police. Yet despite this, the Applicant did not seek the assistance of the Prime Minister when he became concerned that the police were not investigating his complaints. The Respondent submits that the Applicant did not exhaust all avenues in order to obtain the protection that he is now seeking. See Hinzman, Re, 2007 FCA 171 (F.C.A.) at paragraphs 46, 56-57.

The Applicant’s Reply 37 The Applicant argues that it was unreasonable for the RPD to expect the Applicant to adduce evidence that UWP thugs are still looking for him. In a country as small as Dominica, with a population of 72,500 people, it is reasonably inferred that people who are interested in the Appli- cant, such as the UWP thugs, would know that the Applicant has left the country. 38 In light of convincing objective evidence — namely, medical evidence attesting to the Applicant’s injuries, the failure of the authorities to address his repeated complaints and the failure of the police to protect him — the Applicant contends that the RPD cannot simply rely on the country conditions documentation to find that his life is not at risk in 50 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

Dominica. It must provide some insight as to why it believes that, despite objective evidence to the contrary, the Applicant would be safe there. 39 The Applicant further argues that the Respondent cannot buttress the Decision of the RPD by arguing that the Applicant could have turned to the prime minister for assistance when none was forthcoming from the police. The point is addressed nowhere in the Decision. That said, Pierre Charles is no longer the prime minister, and the Applicant can no longer rely on his former friends in the DLP because he has fallen out of favour with the party. 40 Finally, the Applicant submits that the RPD should not have required the Applicant to provide proof of systematic violence perpetrated by UWP thugs against DLP supporters who have received patronage appointments. Proof of systemic violence should not be required. It is too specific. This unreasonably high threshold places too onerous a burden on the Applicant.

The Respondent’s Further Memorandum 41 The Respondent posits that the Applicant has not provided convincing evidence that the attacks he suffered were not perpetrated by unknown assailants rather than by UWP thugs. The Applicant himself acknowledged that political patronage is the norm in Dominica; the Applicant’s appointment to the Seaport Authority would not come as a surprise to many. The RPD reasonably concluded that the Applicant’s assertions that he was being targeted because of his political affiliations and high-paying position were not persuasive. 42 The Applicant himself admitted in his submissions that it was his perceived wealth that made him a target. Now that the Applicant no longer has wealth and a patronage position, it is reasonable to assume that he will no longer be targeted. This provides further support for the RPD’s finding that there is no continuity of risk.

Analysis 43 As the Decision makes clear, the determinative issue under section 96 of the Act was whether the claimant’s subjective fear is objectively well-founded, or put another way, whether there is a serious possibility that the claimant will be persecuted by thugs belonging to the UWP by reason of one of the five enumerated Convention grounds should he return to Dominica. Theophile v. Canada (MCI) James Russell J. 51

44 This section 96 claim was rejected because the Applicant failed to provide sufficient evidence to establish forward-looking continuity of risk: Therefore, I find that the claimant’s fear of persecution at the hands of thugs belonging to the opposition party, the UWP, should he return to Dominica, is not well-founded because he does not face a serious possibility of persecution in the future should he return there. 45 A summary of the RPD’s findings on this point appears at paragraphs 7 and 8 of the Decision: The claimant has been outside of Dominica for three years. He left Dominica and went to St. Thomas in November 2007. The claimant testified that if he were to return to Dominica that opposition thugs of the UWP would kill him. I find that there is no persuasive evidence to indicate that any opposition thugs belonging to the UWP have been actively looking for him or are planning to kill him in the event that he returns to Dominica. Furthermore, based upon my review of the preponderance of the documentary evidence, I find that there is no persuasive evidence to suggest that low-level or high-level members or supporters of the DLP, who have been given plum appointments to government agencies as a result of political patronage, are being targeted by way of widespread or systematic attacks or violence at the hands of opposition thugs of the UWP. 46 The RPD does not comment on the credibility of the Applicant. Pre- sumably, then, the RPD was satisfied that the Applicant himself is con- vinced that the people who have attacked him over the years are thugs belonging to the UWP. However, the RPD does not accept that the Ap- plicant has adduced sufficient objective evidence to satisfy the RPD, on a balance of probabilities, that his belief is well-founded. 47 This finding is not unreasonable. The Applicant’s belief that the agents of persecution are UWP thugs seems based largely on speculation because, in every one of these violent encounters, the attackers failed to identify themselves. 48 At the RPD hearing, the Applicant stated that, in 2001, his car was damaged by unknown vandals. The RPD asked him, if he did not see who damaged the car, why he believed that the vandalism was tied to the UWP. The Applicant replied: “Nobody else could do it sir.” (See Certi- fied Tribunal Record [CTR], page 189.) He explained that, prior to get- 52 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

ting the job at the Seaport Authority, he was very well-liked; this changed when he accepted his patronage appointment. 49 The Applicant testified at the hearing that, also in 2001, the brake lines on his second vehicle were cut and, in consequence, he crashed his car and was badly injured. The RPD asked him: “Do you know who did it?” The Applicant replied: “No sir.” (See CTR, page 198.) 50 The Applicant testified that he was attacked by a “gang” of seven people in 2007 while he and his friends were working on his newly constructed house. He could not identify the attackers; he had never seen them before and they said nothing to him. (See CTR, page 203.) 51 Finally, the Applicant testified that, in 2007, he was attacked by a gang of people with knives. These people said that they wanted to “finish [him] off” and that he needed to quit his job at the Seaport Authority. (See CTR, page 207.) 52 Following each incident, the Applicant made multiple reports to the police, who said that they were investigating. The Applicant testified that he did not know if the police actually investigated or not. (See CTR, page 210.) 53 The RPD dedicates paragraphs 8-12 of the Decision to an analysis of the country conditions, finding that Dominica is a democracy with free and fair elections, a functioning police force that maintains public order and a formal complaints procedure to evaluate complaints regarding the conduct of its officers. 54 The RPD reviewed five articles submitted into evidence by the Appli- cant and gave detailed reasons for finding that none of them supported his claim that supporters of the DLP who have accepted patronage appointments to government agencies are being targeted by way of widespread or systematic attacks or violence at the hands of opposition thugs of the UWP. 55 In my view, there is nothing about the RPD’s assessment of the evidence or its findings on this point that can be said to fall outside the range of reasonableness posited in Dunsmuir. 56 The Applicant also complains that the RPD ignored objective evidence of risk found in two reports he submitted regarding his injuries, one from a Canadian doctor and one from a doctor in Dominica. There is nothing, however, in these reports that supports the case for forward- looking risk based upon a Convention ground. The reports did not need to be specifically referenced under the section 96 analysis because they Theophile v. Canada (MCI) James Russell J. 53

do not contradict the RPD’s general conclusion that there was no persuasive evidence to suggest that supporters of the DLP who had been given “plum” appointments through political patronage were being targeted or subjected to systemic attacks or violence at the hands of opposition thugs who support the UWP. 57 As the Respondent points out, this Court has held that the need for the RPD to refer in its reasons to medical reports, filed in evidence, will de- pend on the quality of that evidence and the extent to which it is material to the claim. Since the RPD was not persuaded by the evidence that the Applicant was targeted by the UWP thugs as a result of his “plum” government job with the Dominica Seaport Authority, it follows that this evidence was not central to the Applicant’s claim. Rather, the country documentary evidence, which did not support the Applicant’s claims, was of primary relevance. This documentary evidence was reasonably relied upon by the RPD in rejecting the Applicant’s speculative assertions, even though the RPD found the Applicant trustworthy and credible. 58 As regards the assessment of section 97 risk, Justice Edmond Blanchard of this Court, in Bouaouni v. Canada (Minister of Citizenship & Immigration), 2003 FC 1211 (F.C.), at paragraphs 41-42, reviewed in detail what is required for a proper section 97 analysis. He observed: A claim under section 97 must be evaluated with respect to all the relevant considerations and with a view to the country’s human rights record. While the Board must assess the applicant’s claim objectively, the analysis must still be individualized. I am satisfied that this interpretation is not only consistent with the United Nations CAT decisions considered above, but is also supported by the wording of paragraph 97(1)(a) of the Act, which refers to persons, “...whose removal ... would subject them personally...”. There may well be instances where a refugee claimant, whose identity is not disputed, is found to be not credible with respect to his 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 credibility determination, which may be determinative of a refugee claim under s. 96 of the Act, is not necessarily determinative of a claim under subsection 97(1) of the Act. The elements required to establish a claim under section 97 differ from those required under section 96 of the Act where a well-founder [sic] fear of persecution to a convention ground must be established. Al- though the evidentiary basis may well be the same for both claims, it 54 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

is essential that both claims be considered as separate. A claim under section 97 of the Act requires that the Board apply a different test, namely whether a claimant’s removal would subject him personally to the dangers and risks stipulated in paragraphs 97 (1) (a) and (b) of the Act. Arguably, the Board may also be required to apply a different standard of proof, which is an issue that I will leave for another day, since it was not argued on this application. Whether a Board properly considered both claims is a matter to be determined in the circumstances of each individual case bearing in mind the different elements required to establish each claim. In the present case the Board found important omissions, contradictions and implausibilities in the applicant’s evidence, which led it to conclude that the applicant’s story was not credible. I have already determined that these findings were open to the Board. The Board specifically disbelieved the applicant’s allegation of arrest, detention and torture by the police forces and provided detailed reasons for its findings. Further, the Board showed an appreciation of the country conditions in Tunisia and specifically considered, in its reasons, the country documentation before it. There is no evidence to suggest that the Board failed to consider evidence before it or that it misappre- hended any aspect of the evidence. Apart from the evidence that the Board found to be not credible, there was no other evidence before the board in the country documentation, or elsewhere, that could have led the Board to conclude that the applicant was a person in need of protection. I find that the Board did err in failing to specifically analyse the s. 97 claim. However, in the circumstances of this case and in the exercise of my discretion, I also find that the error is not material to the result. I find that the Board’s conclusion, that the applicant was not a “person in need of protection” under paragraphs 97(1)(a) and (b) of the Act, was open to it on the evidence. [emphasis added] 59 In Balakumar, above, at paragraph 13, Justice Phelan of this Court stated that [I]t is not necessary that there be a rigid bright line between the s. 96 and s. 97 considerations. A finding that the objective element of s. 96 had not been met could, depending on the circumstances, dispose of the s. 97 issue as well. However, the rejection of the subjective element of s. 96 does not entitle the Board to ignore the objective element of fear particularly in respect of s. 97. The form in which that consideration occurs is not one which the Court should direct — what is important is that it be done and appear to be done. [emphasis added] Theophile v. Canada (MCI) James Russell J. 55

60 The Applicant says that, for the section 97 analysis, the RPD could not simply rely upon its section 96 analysis and should have dealt with the evidence that showed that the Applicant had been attacked and hospitalized on multiple occasions. This evidence was not deemed unreliable or lacking in credibility. While the country documentation did not establish that his injuries were caused by political retaliation, the injuries nevertheless occurred and suggest that his life is in danger if he is returned to Dominica. 61 The RPD’s reasons for rejecting the section 96 claim are that “there is no persuasive evidence to indicate that any opposition thugs belonging to the UWP have been actively looking for him or are planning to kill him in the event that he returns to Dominica.” 62 The Respondent argues that, in paragraph 14 of the Decision, the RPD is simply referring to its reasons regarding the absence of evidence for a continuity of risk. I think the answer to this argument is found in paragraph 14 of the Decision itself which specifically says that the section 97 risk referred to is “a risk to life, a risk of torture, or a risk of cruel and unusual treatment or punishment at the hands of thugs of the opposition party, the United Workers Party (UWP), should he return to Domi- nica today.” The incidents related by the Applicant, and the medical evidence (none of which was questioned by the RPD), suggest some kind of targeting of the Applicant and strenuous attempts to kill him. The RPD never tells us why it was not appropriate to assess these factors under section 97 apart from the political connection, which is only relevant to its section 96 analysis. 63 The RPD cannot rely upon this reasoning to reject the Applicant’s section 97 claim. This is because no political motivation is required for section 97 risk and there is no need to connect that risk to a section 96 Convention ground. Hence, the same reasoning cannot be used to reject the Applicant’s section 97 claim. In this case the error could well be highly material to the result when the Applicant’s own evidence and the medical evidence are not challenged by the RPD. For this reason I think the Decision should be returned for reconsideration in accordance with these reasons. 64 Counsel agree that there is no question for certification and the Court concurs.

Judgment THIS COURT’S JUDGMENT is that 56 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

1. The application is allowed. The Decision is quashed and returned for reconsideration by a differently constituted RPD. 2. There is no question for certification. Application granted. Alfaro v. Canada (MCI) 57

[Indexed as: Alfaro v. Canada (Minister of Citizenship & Immigration)] Victor Labrador Alfaro, Lobelia Ester Valerino Avila, Victor Manuel Labrador Valerino, Juan Carlos Labrador Valerino, Applicants and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-7390-10 2011 FC 912 Donald J. Rennie J. Heard: July 6, 2011 Judgment: July 22, 2011 Immigration and citizenship –––– Refugee protection — Elements of protected refugee status — Fear of persecution — Well-founded fear –––– Ap- plicant, his wife, and their children were citizens of Cuba — Applicant came to Canada in December 2002 as temporary foreign worker — Cuban government sent letter to applicant describing B, his manager and close friend, as thief and traitor — When applicant expressed concerns to his new supervisor, he was accused of having ideological problems — When applicant told his supervisor that he wanted to immigrate to Canada, he was fired and called traitor — Applicants made claim for refugee protection — Board found that applicants were neither convention refugees nor persons in need of protection — Applicants brought application for judicial review — Application granted — Fact that applicant was in breach of his exit visa did not end matter — There was no prospective analysis of issue to be faced on applicant’s return to Cuba — Board found that applicant was highly trusted employee of Cuban government, who had been labelled traitor prior to expiry of his exit visa — There was no doubt that reaction of Cuban government was swift and harsh, both in terms of consequences to applicant in Canada and in Cuba — Board framed its analysis entirely on context of breach of exit laws, but events that precipitated reaction of Cuban government and applicants’ claim arose prior to expiry of visa. Immigration and citizenship –––– Refugee protection — Elements of protected refugee status — Grounds — Membership in particular social group –––– Applicant, his wife, and their children were citizens of Cuba — Ap- plicant came to Canada in December 2002 as temporary foreign worker — Cu- ban government sent letter to applicant describing B, his manager and close friend, as thief and traitor — When applicant expressed concerns to his new su- 58 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th) pervisor, he was accused of having ideological problems — When applicant told his supervisor that he wanted to immigrate to Canada, he was fired and called traitor — Applicants made claim for refugee protection — Board found that applicants were neither convention refugees nor persons in need of protection — Applicants brought application for judicial review — Application granted — Fact that applicant was in breach of his exit visa did not end matter — There was no prospective analysis of issue to be faced on applicant’s return to Cuba — Board found that applicant was highly trusted employee of Cuban government, who had been labelled traitor prior to expiry of his exit visa — There was no doubt that reaction of Cuban government was swift and harsh, both in terms of consequences to applicant in Canada and in Cuba — Board framed its analysis entirely on context of breach of exit laws, but events that precipitated reaction of Cuban government and applicants’ claim arose prior to expiry of visa. Immigration and citizenship –––– Refugee protection — Elements of protected refugee status — Grounds — Political opinion –––– Applicant, his wife, and their children were citizens of Cuba — Applicant came to Canada in December 2002 as temporary foreign worker — Cuban government sent letter to applicant describing B, his manager and close friend, as thief and traitor — When applicant expressed concerns to his new supervisor, he was accused of having ideological problems — When applicant told his supervisor that he wanted to immigrate to Canada, he was fired and called traitor — Applicants made claim for refugee protection — Board found that applicants were neither convention refugees nor persons in need of protection — Applicants brought application for judicial review — Application granted — Fact that applicant was in breach of his exit visa did not end matter — There was no prospective analysis of issue to be faced on applicant’s return to Cuba — Board found that applicant was highly trusted employee of Cuban government, who had been labelled traitor prior to expiry of his exit visa — There was no doubt that reaction of Cuban government was swift and harsh, both in terms of consequences to applicant in Canada and in Cuba — Board framed its analysis entirely on context of breach of exit laws, but events that precipitated reaction of Cuban government and applicants’ claim arose prior to expiry of visa. Cases considered by Donald J. Rennie J.: Adjei v. Canada (Minister of Employment & Immigration) (1989), [1989] 2 F.C. 680, 7 Imm. L.R. (2d) 169, 57 D.L.R. (4th) 153, 132 N.R. 24, 1989 Car- swellNat 628, 1989 CarswellNat 40, [1989] F.C.J. No. 67 (Fed. C.A.) — referred to Castaneda v. Canada (Minister of Employment & Immigration) (1993), 69 F.T.R. 133, 1993 CarswellNat 544, [1993] F.C.J. No. 1090 (Fed. T.D.) — followed Cheung v. Canada (Minister of Employment & Immigration) (1993), 19 Imm. L.R. (2d) 81, [1993] 2 F.C. 314, 153 N.R. 145, 102 D.L.R. (4th) 214, 1993 Alfaro v. Canada (MCI) Donald J. Rennie J. 59

CarswellNat 60, 1993 CarswellNat 1311, [1997] I.N.L.R. 80, [1993] F.C.J. No. 309 (Fed. C.A.) — considered Donboli v. Canada (Minister of Citizenship & Immigration) (2003), 30 Imm. L.R. (3d) 49, 2003 FC 883, 2003 CarswellNat 2300, 2003 CarswellNat 4482, 2003 CF 883 (F.C.) — considered Perez v. Canada (Minister of Citizenship & Immigration) (2010), 2010 Car- swellNat 2970, 2010 FC 833, 2010 CarswellNat 3696, 2010 CF 833 (F.C.) — followed Valentin v. Canada (Minister of Employment & Immigration) (1991), [1991] 3 F.C. 390, (sub nom. Valentin v. Canada (Ministre de l’Emploi & de l’Immigration)) 167 N.R. 1, 1991 CarswellNat 138F, 1991 CarswellNat 138, [1991] F.C.J. No. 554 (Fed. C.A.) — considered

APPLICATION for judicial review of decision dismissing applicants’ claim for refugee protection.

Rekha P. McNutt, Jean Munn, for Applicants Camille Audain, for Respondent

Donald J. Rennie J.:

1 This application for judicial review arises from a decision of the Ref- ugee Protection Division of the Immigration and Refugee Board of Can- ada (the Board) dated November 23, 2010, which determined that the applicants were neither Convention refugees nor persons in need of protection. For the reasons that follow, the application is granted.

The Facts 2 The principal applicant, (the applicant) Victor Labrador Alfaro, his wife Lobelia Ester Valerino Avila and their children Victor Manuel Lab- rador Valerino and Juan Carlos Labrador Valerino are citizens of Cuba. 3 The applicant came to Canada in December 2002 as a temporary foreign worker. He worked as an engineer for a joint venture between a company of the Cuban government and a private Canadian company. His family joined him in Canada in 2003. The female applicant, a university professor, took a five-year leave of absence at that time. In 2006, the applicant was promoted to the position of Assistant Project Manager, the second most senior position in the joint-venture company. 4 In August 2007, a year prior to the expiry of the applicant’s exit visa from Cuba, Roman Balan, the applicant’s manager, decided to stay in Canada permanently. The evidence before the Board was that Balan and 60 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

the applicant were close friends. The Cuban government subsequently sent a letter to the applicant describing Balan as a thief and a traitor. When the applicant expressed concerns about the letter to his new supervisor, his supervisor accused him of having ideological problems. 5 Shortly thereafter, the female applicant was informed that her leave of absence was being terminated early. She was told to return to work in Cuba immediately or else she would be fired. 6 In March 2008, the applicant testified as a witness at another colleague’s refugee hearing. At his own hearing the applicant testified that he suspects that his new supervisor somehow learned of this testimony, but this was rejected as speculative. 7 On June 16, 2008 after having been in Canada for close to eight years, the applicant spoke with a human resources manager at his company and told him that he wanted to immigrate to Canada. The human resources manager told him to inform his supervisor, which he did. When the applicant told his supervisor that he wanted to immigrate to Canada, his supervisor fired him and called him a traitor. The applicant was given a week to vacate the company house in which he and his family lived and was told to return his company car immediately. The applicants’ home in Cuba, which they had been renting out while they were abroad, was also seized by the government. The applicant was required to engage counsel and commence legal proceedings to recover severance pay. 8 On August 11, 2008, the date of the expiry of his exit visa, the applicant made his claim for refugee protection, alleging a fear of persecution based on imputed political opinion and membership in a particular social group.

The Decision Under Review 9 The Board found that the principal applicant and the female applicant were credible witnesses, but rejected their claim based on a lack of objective risk of persecution or that they would be considered dissidents because of their attempt to immigrate to Canada. The Board found that the applicants had not been persecuted or labelled as dissidents in the past. The Board considered the applicant’s claim that his employer learned of his involvement in his colleague’s refugee hearing, but rejected it on the basis that refugee proceedings in Canada are held in camera. It noted evidence of the Cuban government’s dissatisfaction with its Alfaro v. Canada (MCI) Donald J. Rennie J. 61

citizens who immigrate to Canada, but found that it did not establish a direct threat to the applicants. 10 The Board also rejected the applicants’ claim that their treatment around the time they initiated their refugee claim was persecutory. Spe- cifically, the Board found that there was nothing persecutory about the demand that the applicant return to Cuba to renew his permit, noting that the applicant had been highly trusted by his government. The Board also found that there was nothing persecutory about the termination of the female applicant’s and principle applicant’s employment, the requirement that the company car be returned and the company house be va- cated, or the seizure of their house in Cuba. Rather, the Board found that these events were the consequence of a decision to emigrate from a communist country, where employment and housing are government-run. 11 The Board found that the applicants had violated Cuba’s exit laws, but that the violation of those laws did not establish a need for refugee protection. In making this finding, the Board relied on Valentin v. Canada (Minister of Employment & Immigration), [1991] 3 F.C. 390 (Fed. C.A.), and Castaneda v. Canada (Minister of Employment & Immi- gration), [1993] F.C.J. No. 1090 (Fed. T.D.). The Board also found that those who violate Cuba’s exit laws may be considered dissidents, accepted that the applicants would face social isolation when returned to Cuba, but found that this isolation and discrimination fell short of persecution. 12 The Board noted that the applicants did not claim that they could be killed if they returned to Cuba, and found that they were not persons in need of protection.

The Issues 13 The applicants contend that the Board applied the incorrect test in assessing their claim and ignored relevant evidence. Whether the Board applied the correct legal test is a question of law and is therefore reviewable on the correctness standard. The weight accorded the evidence and determinations as to whether that evidence meets the burden of proof is entitled to deference and is assessed on a reasonableness standard. 14 The Court of Appeal has made clear that refugee claims cannot be self-induced simply by reason of the consequences that might subsequently befall the claimant for over-staying an exit visa issued by the claimant’s home country on return: Valentin. The fact that the applicant is in breach of the exit visa and may in consequence suffer penalties of 62 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

some form does not end the matter. There remains an obligation, well- established in the jurisprudence, on the Board to examine “... the question whether there was a risk of severe or extrajudicial treatment in the hands of a repressive regime as a result of his alleged exit from the country and a failed refugee claim.”: Donboli v. Canada (Minister of Citizenship & Immigration), 2003 FC 883 (F.C.), at para 6, per Justice Eleanor Dawson, now of the Court of Appeal. 15 The Board did not, in this case, address this latter component of the test. While there was some analysis of the immediate consequences to the applicant while in Canada, there was no prospective analysis of the issues to be faced on return to Cuba. The focus was largely retrospective. The reasons state: ... In the case of the principal claimant he has been out of Cuba for 8 years and his permit has been renewed every year without question. He has also travelled extensively to foreign countries with his work. This evidence suggests that the principal claimant has been highly trusted by his Cuban government employers. ... According to the travel records provided as part the [sic] PIFs of the principal and associate claimant’s, it appears that the claimant’s family was also permitted to travel to and exit Cuba regularly. If the claimant has been branded as dissidents or even if there were serious suspicions on the part of Cuban authorities, the panel finds, on a balance of probabilities that authorities would not have permitted the family to travel so frequently to and from Canada. 16 It is axiomatic that the absence of past persecution is not necessary to establish a Convention claim, moreover, the perspective of refugee law is forward looking: Adjei v. Canada (Minister of Employment & Immigra- tion), [1989] 2 F.C. 680 (Fed. C.A.). The Board found that the applicant was a “highly trusted” employee of the Cuban government, who had been labelled a traitor prior to the expiry of his exit visa and there is no doubt that the reaction of the Cuban government was swift and harsh, both in terms of the consequences to the applicant in Canada and in Cuba. It is in this context, taking into account the applicant’s history, position and profile that the analysis of extrajudicial consequences is framed and takes on added importance. Again, reverting to Justice Daw- son’s comment in Donboli; ...However, where a proper evidentiary basis exists it is necessary to consider whether excessive or extra-judicial punishment for an illegal exit could constitute a reasonable basis for a well-founded fear of persecution. Alfaro v. Canada (MCI) Donald J. Rennie J. 63

17 The facts as found by the Board constitute a proper evidentiary basis to warrant such inquiry. 18 The case of Perez v. Canada (Minister of Citizenship & Immigra- tion), 2010 FC 833 (F.C.), is instructive. There, after noting that the applicants could not induce their own need for protection under section 97 of the Immigration and Refugee Protection Act, 2001, c. 27 (IRPA) by voluntarily breaching a condition of their exit visa, Justice Judith Snider reviewed the facts as found by the Board: Moreover, it is far from clear that the Applicant will be charged and convicted under the applicable law. The documentary evidence demonstrates that the Applicant could still apply for a special re-entry permit to return to Cuba. There is no evidence that the Applicant would, with such a permit, be the subject of prosecution under Cuban laws. The documentary evidence contains not a single reference to a similarly-situated person being imprisoned pursuant to this law. On the facts before me, the allegation of imprisonment is mere speculation. There is simply insufficient evidence for me to find that the Ap- plicant’s fear of imprisonment is well-founded. I conclude that the Board was correct to conclude that the risk of imprisonment in Cuba upon her return did not amount to persecution under s. 96, or risk of cruel and unusual treatment under s. 97. 19 Justice Snider then concluded, in my respectful view, consistent with the antecedent jurisprudence in Valentin, Castaneda and Donboli, that: ... it is still possible that the Applicant could have satisfied the Board that she would suffer persecution - beyond a speculative prison term - upon her return to Cuba. The Applicant does not dispute the Board’s findings that her treatment prior to leaving Cuba was not persecution. However, she submits that the Board erred by failing to have regard to the evidence that relates to the time after she left Cuba ... 20 The contrast between Perez and the case before this Court is marked. The evidentiary foundation referred to by both Justices Dawson and Snider existed in this case. The evidence before the Board included the following facts: i. The applicant and Balan were friends. ii. That subsequent to Balan’s defection the applicant received a letter dated September 2, 2007 from the Cuban Ministry of Basic Industry which provided, Always it is difficult to face the betrayal from a friend and even more when that person was a 64 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

member and Team Leader. It has not been easy for you neither has been for the comrades of the Ministry. There are mixed feelings of wrath and rejection. There are people who feel like wanting to use violence and it is sad for that person has been reduced to a humiliated position as a betrayer deterred neglecting all what he has prepared for and it always deserves our maximum delivery and most of the times it is not enough. However, today is a day to work, to continue, to be patience and wait and that merely pays back to the traitors, stealers and cowards. iii. Any reasonable interpretation of that letter would include the inference that Balan would suffer severe punishment, as would any other defector. iv. The applicant testified that he expressed his disapproval and objection to the letter to his immediate supervisor, he became angry and accused the applicant of having “ideological problems”. It should be recalled that the Board found the applicant to be truthful and candid in his testimony. v. After the applicant advised, in a very transparent and direct way of this desire to immigrate to Canada. Yet he was immediately fired and deemed a traitor and accused of having committed treason. This language is found in a letter memorandum from the applicants’ Cuban superior in Canada and head of the Canadian operations. 21 Treason and traitor are strong words with significant consequences. The implications arising from the use of those words, when directed to a trusted member of a government enterprise bear directly on, and reinforce the importance of, the obligation to examine the nature of consequences of the breach of the exit visa outlined in Donboli. Similarly, in Valentin, the Court examined both the penal and non-penal sanctions. In Valentin at paragraph 9 the Court of Appeal did not preclude the possibility that exit laws may, in the context of their particular application, be persecutory. In considering the relationship between the consequences and violating the criminal law of the home country and a claim for refugee status, the Court said: In my opinion, a provision such as section 109 of the Czech Criminal Code can have a determining effect on the granting of refugee status Alfaro v. Canada (MCI) Donald J. Rennie J. 65

only in an appropriate context. This will occur in cases where the provision, either in itself or in the manner in which it is applied, is likely to add to the series of discriminatory measures to which a claimant has been subjected for a reason provided in the Convention, so that persecution may be found in the general way in which he is treated by his country... 22 Nor does the fact that the law may be one of general application end the inquiry. Where the punishment or consequences are completely disproportionate to the objective of the law, it may be persecutory, as the Court of Appeal noted in Cheung v. Canada (Minister of Employment & Immigration), [1993] 2 F.C. 314 (Fed. C.A.): ... if the punishment or treatment under a law of general application is so Draconian as to be completely disproportionate to the objective of the law, it may be viewed as persecutory. This is so regardless of whether the intent of the punishment or treatment is persecution. Cloaking persecution with a veneer of legality does not render it less persecutory. 23 The Court in Castaneda, found that the Board failed to consider elements of extrajudicial punishment beyond the risk of imprisonment, and that the Board’s failure to do so was an erroneous application of Valen- tin. The critical aspect of Justice Simon Noel’s reasoning in Castaneda is: However, as I read the Valentin decision, the isolated nature of the sentence and the lack of direct relationship between the sentence and the offender’s political opinion were determinative factors in the minds of the Appeal justices. Here, the evidence of repercussions over and beyond the statutory sentence suggests an element of repeti- tion and relentlessness in the manner in which the Cuban authorities treat the Applicant’s family as well as a direct link between the Ap- plicant’s act of defiance and the treatment afforded to his family... 24 In the case before the Board, there was evidence of consequences that arguably met the criteria articulated in Castaneda and the failure to examine these collateral consequences, as required, is an error of law. 25 The second ground upon which this application is granted is the failure of the Board to consider the claim as a sur place claim. The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status describes two situations in which a sur place claim may arise. The first, due to a change in circumstances in the country of origin while the 66 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

claimant is abroad, is not germane. The second circumstance however, is: A person may become a refugee “sur place” as a result of this own actions, such as associating with refugees already recognized, or expressing his political views in his country of residence. Whether such actions are sufficient to justify a well-founded fear of persecution must be determined by a careful examination of the circumstances. Regard should be had in particular to whether such actions may have come to the notice of the authorities of the person’s country of origin and how they are likely to be viewed by those authorities. 26 The Board framed its analysis of the case entirely in the context of breach of the exit laws. However, as noted on the evidence before the Board, the events that precipitated the claim were not the overstay of the exit visa, which still had over two month remaining; rather, the events that precipitated the reaction of the Cuban government and the applicants’ claim arose prior to the expiry of the visa. It is true that given the passage of time, the applicant became in breach of his visa, but the cata- lyst for the claim for protection, according to the evidence, was the letter from the Cuban government. For this reason, the claim requires analysis both as a sur place claim and as a breach of exit visa case.

Judgment THIS COURT’S JUDGMENT is that: 1. The application for judicial review is granted. 2. The decision of the Board is set aside and the matter remitted to the Refugee Protection Division of the Immigration Refugee Board for reconsideration before a different member of the Board. 3. No question arises for certification. Application granted. Guerrero v. Canada (MCI) 67

[Indexed as: Guerrero v. Canada (Minister of Citizenship & Immigration)] Janet Graciela Jara Guerrero, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-5599-10 2011 FC 860 Richard G. Mosley J. Heard: May 5, 2011 Judgment: July 8, 2011 Immigration and citizenship –––– Refugee protection — Elements of protected refugee status — Protection of country of nationality — Miscellane- ous issues –––– Applicant was citizen of Peru and was gay — Applicant claimed she was persecuted due to her sexual orientation and that after she was seen by co-worker at gay bar, she was ostracized at work — Applicant claimed she began living more openly and was harassed and that police failed to help her when she went to them — Applicant claimed she was assaulted on street and still received no help from authorities — Applicant claimed Convention refugee protection — Claim was dismissed — Board found applicant could have made further efforts to obtain state protection — Applicant brought application for judicial review — Application granted — Board failed to properly consider documentary evidence relating to persecution of gay people in Peru — Board’s finding on availability of state protection was not reasonable — Claimant twice tried to seek police protection but not only was not given help, was actually treated with derision — Claimant also sought legal advice — Board failed to consider police reaction as part of problem applicant faced — Board referred applicant to government departments that it later noted struggled with corruption, which was unreasonable — Board failed to explain why it discounted evidence from applicant’s sister and friend and psychologist’s report which gave important and relevant evidence on situation for gay people in Peru. Cases considered by Richard G. Mosley: 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 Gavoci v. Canada (Minister of Citizenship & Immigration) (2005), 2005 Car- swellNat 364, 2005 FC 207, 2005 CF 207, 2005 CarswellNat 2736, [2005] F.C.J. No. 249 (F.C.) — referred to 68 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

Zepeda v. Canada (Minister of Citizenship & Immigration) (2008), 2008 Car- swellNat 2671, 2008 FC 491, 2008 CarswellNat 1084, 2008 CF 491, [2009] 1 F.C.R. 237, [2008] F.C.J. No. 625 (F.C.) — referred to Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 97 — referred to

APPLICATION for judicial review.

Daniel M. Fine, for Applicant Nicole Paduraru, for Respondent

Richard G. Mosley:

1 The applicant, a citizen of Peru, seeks judicial review of a decision made on August 18, 2010 of the Refugee Protection Division of the Im- migration and Refugee Board, wherein it was determined that she was not a Convention refugee or a person in need of protection. 2 For the reasons that follow, the application is allowed and the matter remitted for a fresh determination by a differently constituted panel.

Background 3 The applicant based her refugee claim on persecution by reason of her sexual orientation. She says that in December 1999, she was seen by a male co-worker coming out of a gay bar in downtown Lima. This resulted in her being identified as a lesbian and being ostracized at her place of work. 4 In March 2003, the applicant came to Canada to visit her family. Dur- ing her visit, she had an accident and sustained a serious injury that kept her here until September 2006. During that time, the applicant began to live more openly as a lesbian. She applied for permanent residence in September 2006 and returned to Peru awaiting the process of her application. The application was denied in March 2007. That same year the applicant began to socialize more in Peru with women who shared her orientation. In December 2007, the applicant began to receive anonymous threatening phone calls from male callers. She reported the calls to the police but the police referred her to the phone company. She says that she was also harassed at work by her boss. Guerrero v. Canada (MCI) Richard G. Mosley 69

5 On July 29, 2008, the applicant was assaulted by four males on her way home from a party where she had been celebrating a small-scale Gay Pride parade. The attackers called her a “dyke” and attempted rape so as to “teach her how to be a woman”. They threatened her sister and nephew. The applicant tried to report the incident to the police the next morning but the police officer laughed and would not initiate any action. The following day, the applicant returned to the police station and reported the incident to the commanding officer. He too refused to take the report. She contacted a lawyer who advised her she would be wasting her time and money because the courts were homophobic. The claimant had a US visa and her sister helped her purchase an airline ticket to Buffalo. She then re-entered Canada and claimed refugee status on July 29, 2008.

Decision Under Review 6 The Board held that the determinative issue in this case was one of state protection. In considering the documentary evidence, it concluded that Peru was in a position to offer state protection and that the applicant could have pursued other avenues but chose to leave Peru a month after going to the police. It acknowledged that there was some contradictory evidence in the record with regard to Peru’s treatment of homosexuals but found that the Constitutional Court is attempting to address such issues and that the homophobia in Peru is a problem faced by all citizens of Peru.

Issues 7 The issues raised by the applicant are as follows: 1. Did the Board err in determining that the applicant’s fear only arose as a result of an incident on June 29, 2008? 2. Was the Board’s section 97 analysis reasonable? 3. Did the Board err by failing to address, analyze and distinguish contradictory evidence supporting the applicant? 4. Did the Board err in properly applying the Gender Guidelines? 5. Was the Board’s finding on state protection reasonable? 8 In my view, the determinative issues are whether the Board failed to properly consider the documentary evidence relating to the persecution of gays in Peru and whether its finding on state protection is reasonable. 70 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

Analysis 9 Questions regarding state protection are mixed questions of fact and law are to be decided on the reasonableness standard of review: Zepeda v. Canada (Minister of Citizenship & Immigration), 2008 FC 491, [2009] 1 F.C.R. 237 (F.C.) at para. 10. 10 In the case at bar, the applicant tried to seek protection by going twice to the police but received no assistance and was treated with derision. The applicant pursued the matter further, calling a lawyer and telling him the story. In oral testimony she said she called the lawyer because she wanted more information about what she could do in this situation and how to protect her rights. Because she did not have a police report, the lawyer advised her not to waste her time and money. In addition to stating that the courts were homophobic, he expressed concern in represent- ing her due to the nature of the claim and the effect it would have on his professional reputation. 11 The Board acknowledged the applicant’s effort to contact the police but found “there were other avenues she could have pursued”. The Board specifically named the Ministries of Interior and Defence, the Public Ministry and the Ombudsman. It noted also that there are many non-governmental organizations that fight against discrimination based on sexual orientation. That in itself is a telling factor in considering the country conditions. While Peru appears to have made progress in recognizing the place of gay persons in its society, the evidence indicates that discrimination remains a serious problem. 12 It is difficult to understand the Board’s finding that the problem of homophobia is faced by all Peruvian citizens as opposed to those within the class of gays. The Board does not appear to have considered the reaction of the authorities to the applicant’s complaints as an illustration of the extent of the problem and how it might limit access to state protection. 13 In considering the documentary evidence, the Board noted at paragraph 35 of its reasons that “Corruption and impunity remained problems” in the country. In particular, the Board acknowledged that the Ministries of Interior and Defence employ internal mechanisms to inves- tigate security force abuses and are subject to inquiries from the Public Ministry and the Ombudsman. The Board noted that access to evidence in these investigations is not always forthcoming. Guerrero v. Canada (MCI) Richard G. Mosley 71

14 It is not clear why the Board considered it necessary to cite these examples to illustrate efforts to counter corruption as the issue was whether state protection would be forthcoming from institutions alleged to be homophobic. In any event, they are the very institutions the Board suggested the applicant seek out for assistance. In light of its findings, it was unreasonable for the Board to deem such options to be viable in securing state protection. 15 Although the respondent is correct to assert that the Board is not obliged to refer to each and every piece of contrary evidence (Gavoci v. Canada (Minister of Citizenship & Immigration), 2005 FC 207 (F.C.)), the letters from the applicant’s friend, sister and the psychologist’s report should have been more than mentioned in passing. As the decision reads, it is not clear why such pieces of evidence were discounted; there is no analysis to offer an explanation. See: Cepeda-Gutierrez v. Canada (Minister of Citizenship & Immigration) (1998), 157 F.T.R. 35 (Fed. T.D.) where Justice John Evans, as he then was, set aside the tribunal’s decision when psychological evidence was not considered. This is especially so because they corroborated the applicant’s claim and gave contrary accounts of the situation in Peru to that available in some of the documentary evidence. Although not all were necessarily persuasive, they were nonetheless relevant. As such, the Board’s rationale for according no weight to this evidence should have been explained. 16 No questions for certification were proposed.

Judgment THIS COURT’S JUDGMENT is that the application for judicial review is granted and this matter is remitted for reconsideration by a differently constituted panel of the Refugee Protection Division. No questions are certified. Application granted. 72 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

[Indexed as: Vassey v. Canada (Minister of Citizenship & Immigration)] Christopher Marco Vassey, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-5834-10 2011 FC 899 Andre F.J. Scott J. Heard: May 4, 2011 Judgment: July 18, 2011 Immigration and citizenship –––– Refugee protection — Elements of protected refugee status — Protection of country of nationality — Sufficiency of state protection –––– Claimant was American citizen and member of U.S. army — Claimant was deployed to Afghanistan in 2007 — While on duty in Af- ghanistan, claimant alleged that he was ordered to perform actions contrary to rules of armed conflict — He claimed that he experienced growing mental health concerns during and after his deployment — After particular speech given by President Bush, claimant realized that in addition to no longer agreeing with mission in Afghanistan, he did not agree with war in Iraq — Claimant went absent without leave (AWOL) and entered Canada and claimed refugee protection — Immigration and Refugee Board determined that claimant was neither Convention refugee nor person in need of protection on grounds of adequate state protection — Claimant argued that system of military justice in U.S. violated basic human rights by not being independent and impartial — Board recounted that professor H stated most important protection against Unauthorized Command Influence (UCI) is article 37 of Uniform Code of Military Justice, 1970, which precludes commander from censuring any military members with respect to findings or sentences of court — Claimant brought application for judicial review — Application granted — Board’s analysis of five affiants’ evidence was limited — Only conclusion drawn by board was that while UCI was problem, it could be raised as defence, and that this and self-correcting mechanism of article 37 demonstrated that state protection was available — Board did not comment on evidence that directly stated that these self-correcting mechanisms were ineffective — Board concluded that cited decision did not stand for principle that defence of unlawful order only applied to extreme cases and that United States Court of Appeals for Armed Forces had not decided whether individual could raise question of whether he had been ordered to commit unlawful act — However, claimant’s submissions before board were that for charge of Vassey v. Canada (Minister of Citizenship & Immigration) 73 desertion, not disobeying orders, there was no defence — This was corroborated with evidence before board from two experts and three members of U.S. military — Given that claimant would not be able to present evidence of his motive for desertion, this went directly to availability of state protection — It was recognized that there was disproportionate prosecution for desertion of those who had spoken out against wars in Iraq and Afghanistan — Board’s failure to assess evidence before it concerning application of prosecutorial discretion on grounds of political opinion was unreasonable. Immigration and citizenship –––– Refugee protection — Practice and procedure in refugee claims — Refugee hearings — Powers and duties of board –––– Claimant was American citizen and member of U.S. army — Claim- ant was deployed to Afghanistan in 2007 — While on duty in Afghanistan, claimant alleged that he was ordered to perform actions contrary to rules of armed conflict — He claimed that he experienced growing mental health concerns during and after his deployment — After particular speech given by Presi- dent Bush, claimant realized that in addition to no longer agreeing with mission in Afghanistan, he did not agree with war in Iraq — Claimant went absent without leave (AWOL) and entered Canada and claimed refugee protection — Immi- gration and Refugee Board determined that claimant was neither Convention refugee nor person in need of protection on grounds of adequate state protection — Claimant argued that system of military justice in U.S. violated basic human rights by not being independent and impartial — Board recounted that professor H stated most important protection against Unauthorized Command Influence (UCI) is article 37 of Uniform Code of Military Justice, 1970, which precludes commander from censuring any military members with respect to findings or sentences of court — Claimant brought application for judicial review — Application granted — Board’s analysis of five affiants’ evidence was limited — Only conclusion drawn by board was that while UCI was problem, it could be raised as defence, and that this and self-correcting mechanism of article 37 demonstrated that state protection was available — Board did not comment on evidence that directly stated that these self-correcting mechanisms were ineffective — Board concluded that cited decision did not stand for principle that defence of unlawful order only applied to extreme cases and that United States Court of Appeals for Armed Forces had not decided whether individual could raise question of whether he had been ordered to commit unlawful act — How- ever, claimant’s submissions before board were that for charge of desertion, not disobeying orders, there was no defence — This was corroborated with evidence before board from two experts and three members of U.S. military — Given that claimant would not be able to present evidence of his motive for desertion, this went directly to availability of state protection — It was recognized that there was disproportionate prosecution for desertion of those who had spoken out against wars in Iraq and Afghanistan — Board’s failure to assess evidence 74 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th) before it concerning application of prosecutorial discretion on grounds of political opinion was unreasonable. Immigration and citizenship –––– Refugee protection — Practice and procedure in refugee claims — Judicial review — Miscellaneous issues –––– Claimant was American citizen and member of U.S. army — Claimant was deployed to Afghanistan in 2007 — While on duty in Afghanistan, claimant alleged that he was ordered to perform actions contrary to rules of armed conflict — He claimed that he experienced growing mental health concerns during and after his deployment — After particular speech given by President Bush, claimant realized that in addition to no longer agreeing with mission in Afghani- stan, he did not agree with war in Iraq — Claimant went absent without leave (AWOL) and entered Canada and claimed refugee protection — Immigration and Refugee Board determined that claimant was neither Convention refugee nor person in need of protection on grounds of adequate state protection — Claimant argued that system of military justice in U.S. violated basic human rights by not being independent and impartial — Board recounted that professor H stated most important protection against Unauthorized Command Influence (UCI) is article 37 of Uniform Code of Military Justice, 1970, which precludes commander from censuring any military members with respect to findings or sentences of court — Claimant brought application for judicial review — Appli- cation granted — Board’s analysis of five affiants’ evidence was limited — Only conclusion drawn by board was that while UCI was problem, it could be raised as defence, and that this and self-correcting mechanism of article 37 demonstrated that state protection was available — Board did not comment on evidence that directly stated that these self-correcting mechanisms were ineffective — Board concluded that cited decision did not stand for principle that defence of unlawful order only applied to extreme cases and that United States Court of Appeals for Armed Forces had not decided whether individual could raise question of whether he had been ordered to commit unlawful act — How- ever, claimant’s submissions before board were that for charge of desertion, not disobeying orders, there was no defence — This was corroborated with evidence before board from two experts and three members of U.S. military — Given that claimant would not be able to present evidence of his motive for desertion, this went directly to availability of state protection — It was recognized that there was disproportionate prosecution for desertion of those who had spoken out against wars in Iraq and Afghanistan — Board’s failure to assess evidence before it concerning application of prosecutorial discretion on grounds of political opinion was unreasonable. Cases considered by Andre F.J. Scott J.: Begashaw v. Canada (Minister of Citizenship & Immigration) (2009), 82 Imm. L.R. (3d) 309, 2009 FC 462, 2009 CarswellNat 2696 (F.C.) — referred to Vassey v. Canada (Minister of Citizenship & Immigration) 75

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.) — referred to Colby v. Canada (Minister of Citizenship & Immigration) (2008), 2008 Car- swellNat 2083, 2008 CF 805, 2008 CarswellNat 4643, 2008 FC 805, [2008] F.C.J. No. 1015 (F.C.) — considered Findlay v. United Kingdom (1997), 24 E.H.R.R. 221, [1997] ECHR 8 (European Ct. Human Rights) — considered Florea v. Canada (Minister of Employment & Immigration) (June 11, 1993), Doc. A-1307-91, [1993] F.C.J. No. 598 (Fed. C.A.) — referred to Garcia Osorio v. Canada (Minister of Citizenship & Immigration) (2010), 2010 CF 907, 2010 CarswellNat 3220, 2010 FC 907, 2010 CarswellNat 4051 (F.C.) — referred to Gunes v. Canada (Minister of Citizenship & Immigration) (2008), 2008 Car- swellNat 1573, 2008 FC 664, 2008 CF 664, 2008 CarswellNat 3174 (F.C.) — referred to Hinzman, Re (2007), 2007 CarswellNat 950, 2007 FCA 171, (sub nom. Hinzman v. Canada (Minister of Citizenship & Immigration)) 282 D.L.R. (4th) 413, 2007 CarswellNat 3596, 63 Imm. L.R. (3d) 13, 2007 CAF 171, (sub nom. Hinzman v. Canada (Minister of Citizenship & Immigration)) 362 N.R. 1, 61 Admin. L.R. (4th) 313, [2007] F.C.J. No. 584 (F.C.A.) — followed James v. Canada (Minister of Citizenship & Immigration) (2010), 2010 FC 546, 2010 CarswellNat 1413, 2010 CF 546, 2010 CarswellNat 2586 (F.C.) — referred to Kadenko v. Canada (Solicitor General) (1996), 1996 CarswellNat 2216, (sub nom. Kadenko v. Canada (Solliciteur général)) 206 N.R. 272, (sub nom. Kadenko v. Canada (Solliciteur général)) 124 F.T.R. 160 (note), 143 D.L.R. (4th) 532, [1996] F.C.J. No. 1376, [1996] A.C.F. No. 1376 (Fed. C.A.) — considered 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 Lowell v. Canada (Minister of Citizenship & Immigration) (2009), 2009 FC 649, 2009 CarswellNat 1871 (F.C.) — considered Miranda Ramos v. Canada (Minister of Citizenship & Immigration) (2011), 2011 CarswellNat 798, 2011 CF 298, 2011 CarswellNat 1702, 2011 FC 298 (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, 76 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

(sub nom. Dunsmuir v. New Brunswick) 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. G´en´ereux (1992), [1992] 1 S.C.R. 259, 70 C.C.C. (3d) 1, 88 D.L.R. (4th) 110, 8 C.R.R. (2d) 89, 133 N.R. 241, 1992 CarswellNat 668, 1992 Car- swellNat 668F, EYB 1992-67222, [1992] A.C.S. No. 10, [1992] S.C.J. No. 10 (S.C.C.) — considered Rivera v. Canada (Minister of Citizenship & Immigration) (2009), 351 F.T.R. 267 (Eng.), 2009 CF 814, 2009 CarswellNat 5802, 2009 FC 814, 2009 Car- swellNat 2385 (F.C.) — considered Satiacum v. Canada (Minister of Employment & Immigration) (1989), 99 N.R. 171, 1989 CarswellNat 906, [1989] F.C.J. No. 505 (Fed. C.A.) — followed Smith v. Canada (Minister of Citizenship & Immigration) (2009), 358 F.T.R. 189 (Eng.), 2009 CarswellNat 3800, 2009 CarswellNat 3801, 2009 CF 1194, 2009 FC 1194, [2011] 1 F.C.R. 36, 86 Imm. L.R. (3d) 114 (F.C.) — considered United States v. Huet-Vaughn (1995), 43 M.J. 105 (U.S. Ct. of Military Ap- peal) — considered United States v. Lewis (2006), 63 M.J. 405 (U.S. Ct. of Military Appeal) — 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 Car- swellNat 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: 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 Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 3(3)(d) — referred to s. 3(3)(f) — referred to s. 72(1) — pursuant to s. 96 — referred to s. 97 — referred to Uniform Code of Military Justice, 1970, 10 U.S.C. 47 Generally — referred to Article 37 — considered Vassey v. Canada (Minister of Citizenship & Immigration) Andre F.J. Scott J. 77

Article 37(a) — referred to

APPLICATION by claimant for judicial review of decision of Immigration and Refugee Board dismissing his claim for refugee protection on basis of adequate state protection.

Alyssa Manning, for Applicant Martin Anderson, for Respondent

Andre F.J. Scott J.: I. Introduction 1 This is an application for judicial review of a decision of a member of the Immigration and Refugee Board (the Board), pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001 c 27 [the Act] by Christopher Marco Vassey (the applicant). The Board determined that the applicant was neither a Convention refugee nor a person in need of protection under sections 96 and 97 of the Act. The applicant requests that the decision be set aside and the claim remitted for re-determination by a different member of the Board.

II. Background 2 The applicant is an American citizen. He was very involved in the Junior Reserve Officer Training Corps during high school and enlisted in the New Jersey Army National Guard after he turned 17, in September 2003. After completing basic training, the applicant became a recruiter assistant for the National Guard. Feeling disillusioned with the recruit- ment process in the National Guard, the applicant joined the US Army in April 2006 and was sent to Fort Bragg, North Carolina. The applicant was assigned to an infantry unit to be deployed to Afghanistan in 2007. During the lead up to the mission in Afghanistan, the applicant became concerned about the lack of organization and training of his unit as well as the capabilities of the commanders. 3 The applicant deployed to Afghanistan in January 2007 and was orig- inally scheduled to end his tour in April 2009. After several months, the applicant learned that his service would be involuntarily extended until at least May 2010. Instead, the applicant chose to voluntarily re-enlist in the Army in April 2007 to secure himself a promotion and tuition funding upon completion. On December 1, 2007, the applicant was promoted to Sergeant. 78 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

4 While on duty in Afghanistan, the applicant alleges that he was ordered to perform actions contrary to the rules of armed conflict. These orders included raiding civilian homes and recognizance by fire where his unit pre-emptively fired on a location where they believed the enemy forces were located without taking any precautions to ensure that civil- ians were not harmed. The applicant further stated that he was part of the supervision of the Afghan National Army which he learned were placing detainees in “hot boxes” under extreme conditions to obtain information. Finally, the applicant alleges that his unit strapped the dead bodies of Afghan insurgents to US military vehicles and drove through villages in order to intimidate local populations. 5 The applicant described growing mental health concerns during and after his deployment to Afghanistan. Following his voluntary reenlist- ment, the applicant began to feel depressed. On leave for two weeks in July 2007, the applicant suffered from nightmares, insomnia and mood swings. He did not describe any of his mental health issues to a superior officer nor did he seek medical assistance. After returning to the United States on April 8, 2008, the applicant stated that he could not spend time with others or be around children and that he was emotionally unstable and felt on edge. 6 During President Bush’s speech at “all American week” in 2008, the applicant realized that in addition to no longer agreeing with the mission in Afghanistan, he did not agree with the war in Iraq, as it had nothing to do with the events of September 11, 2001. The applicant began research- ing options to leave the Army and he determined that because he was a Sergeant with four years left on his contract, he would face severe punishment for going absent without leave [AWOL]. The applicant felt that he could not file for conscientious objector status because his objections were based on specific wars and not grounded in religious beliefs. 7 On July 7, 2008, the applicant collected his things from Fort Bragg and went AWOL from the US Army. He entered Canada on August 4, 2008, and claimed refugee protection the same day. 8 The refugee hearing was held on October 9, 2009. The Board’s negative decision was issued on August 27, 2010.

III. The Decision Under Review 9 The Board issued a lengthy decision, in which state protection was the determinative issue. Vassey v. Canada (Minister of Citizenship & Immigration) Andre F.J. Scott J. 79

10 The Board reviewed the relevant jurisprudence on state protection, noting that there is a presumption of state protection which a refugee claimant can rebut with clear and convincing evidence of the state’s inability to protect. The Board noted that the protection does not have to be effective but rather adequate and that there is a higher burden on the claimant when the state in question is a developed democracy such as the United States of America. 11 The Board spent several pages reviewing the case of Hinzman, Re, 2007 FCA 171 (F.C.A.) [Hinzman]. The appellants, Mr. Hinzman and Mr. Hughey, members of the US military, deserted because of their belief that the war in Iraq was illegal and immoral. The Board found that Justice Sexton of the Federal Court of Appeal held that it was not possible to conclude that the appellants would not have been adequately protected in the United States because they did not access the legal protections available to them. 12 The Board also reviewed Mr. Justice Beaudry’s decision in Colby v. Canada (Minister of Citizenship & Immigration), 2008 FC 805 (F.C.), in which he held that even where the facts raised by a refugee claimant might fall under paragraph 171 of the UNHCR Handbook on Procedures and Criteria for Determining Refugee States (the UNHCR handbook), the claimant must still establish that state protection is unavailable to him.

A. Ability to Raise the Defence of an Illegal Order 13 The Board then assessed the applicant’s submission that if the motive for desertion is deemed irrelevant and inadmissible in US court-martial proceedings then there is no opportunity to raise a proper defence against desertion charges. 14 The Board summarized the affidavit evidence of several professors and US military sergeants presented by the applicant. 15 The Board then considered the case of Captain M Huet-Vaughn in United States v. Huet-Vaughn, 43 M.J. 105 (U.S. Ct. of Military Appeal 1995), (1995 CAAF) of the United States Court of Appeals for the Armed Forces [Huet-Vaughn]. The Board found that Huet-Vaughn does not show that the defence of an unlawful order only applies to extreme cases such as war crimes of grave breaches of the Geneva Conventions. Rather, the Board concluded that the United States Court of Appeals for the Armed Forces has not decided whether an individual could raise the question of whether he or she had been ordered to commit an unlawful 80 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

act and that the duty to disobey extends to acts that are manifestly beyond the legal power or discretion of the commander as to admit to no rational doubt of their unlawfulness. 16 The Board found that the avenues of appeal were not exhausted in the case of Huet-Vaughn and that since the issue of raising an unlawful order in defence of a desertion charge has not been appealed to the Supreme Court, the examples of individuals who were not able to raise the defence do not rebut the presumption of state protection. 17 The Board also found that there was not sufficient evidence to show that the applicant could not have requested a medical discharge for his psychiatric condition.

B. Differential Prosecutorial Discretion 18 The Board then assessed the applicant’s submission that there is no state protection or procedural protections against the differential, and therefore persecutory, application of prosecutorial discretion by his commanding officer on whether to initiate charges and court-martial proceedings. 19 The Board reviewed the examples presented by the applicant of James Burmeister and Robin Long, where evidence of these individuals’ public comments against the war in Iraq was introduced at their courts- martial. The applicant submitted that these statements were used as aggravating factors and were ultimately the reason for pursuing prosecution as opposed to an administrative discharge for desertion. The Board found that prosecutorial discretion benefits that justice system. If aggravating factors, including public comments against a war, are presented in a proceeding, this does not necessarily suggest that prosecutorial discretion has been used in a discriminatory manner.

C. Independence and Impartiality of the US Military Justice System 20 The Board then assessed the applicant’s submission that the system of military justice in the United States violates basic human rights by not being independent and impartial. 21 The Board spent several pages recounting the evidence presented from Donald G. Rehkopf, Jr., Professor Eugeen Fidell, Marjorie Cohn and Kathleen M. Gilberd for the applicant and Professor Victor Hansen from the respondent. Vassey v. Canada (Minister of Citizenship & Immigration) Andre F.J. Scott J. 81

22 The Board acknowledged that the applicant’s argument that the US military justice system does not comply with the requirements of the Ca- nadian Charter of Rights and Freedoms (the Charter) or the factors outlined by the Supreme Court in R. v. G´en´ereux, [1992] 1 S.C.R. 259 (S.C.C.) [Genereux], where the Court considered the Canadian court- martial system. These factors included the lack of security of tenure, financial security and institutional independence. 23 The Board recounted that Professor Hansen, for the respondent, described the US military justice system as having sufficient checks and balances. He stated that the most important protection against Unautho- rized Command Influence (UCI) is article 37 of the Uniform Code of Military Justice [UCMJ]. Article 37 precludes a commander from censuring, reprimanding or admonishing any military members, judge or counsel with respect to findings or sentences of the court. Subsection 37(a) prevents unauthorized influence on a member of the military court. The Board noted that Professor Hansen stated that the commander acts on the advice of military lawyers before taking action and that there is a robust appellate system for preventing errors, such as UCI and other trial errors. The system is further protected by the presiding Judge Advocate. 24 The Board found that both the respondent and applicant’s affiants agree that the military commander has a central role in the US military justice system, including initiating investigations, determining what charges will be brought to what level of court-martial and selecting the panel of jurors and adjudicating the cases. 25 The Board noted that, generally, the applicant’s affiants stated that the US military justice system does not conform to the factors in Gener- eux above. Under the UMCJ, the judges are appointed at will and lack security of tenure, and institutional independence is lacking as the judges are appointed by the Judge Advocate General. They stated that a discipline model operates where a commander could choose to make an example of a soldier. Further, article 37 of the UMCJ aimed at correcting UCI is ineffective as complaints of UCI continue and are rarely success- ful. Mr. Rehkopf stated that the system lacks fundamental aspects of due process and that the checks and balances are insufficient and UCI continues. 26 The Board Member found, at paragraph 89 of his decision, that: I accept the evidence in the affidavits of Donald G. Rehkopf, Jr., Pro- fessor Eugeen Fidell, Professor Victor Hansen, Marjorie Cohn and Kathleen M. Gilberd.... I accept the affidavits for the information 82 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

provided in regard to the US military justice system. Any conclusions drawn from this evidence is the sole responsibility of the Board... 27 The Board then stated that the test for determining whether state protection is available to a person in the claimant’s position is set out in the Satiacum v. Canada (Minister of Employment & Immigration) (1989), 99 N.R. 171 (Fed. C.A.) [Satiacum]: ...In all but the most extraordinary circumstances all the events leading up to a prosecution and all of the events of a trial in a free and independent foreign judicial system must be taken to be merged into the judicial process and not open to review by a Canadian tribunal. Extraordinary circumstances would be those, for example, which tended to impeach the total system of prosecution, jury selection or judging, not discrete indiscretions or illegalities by individual partici- pants which, even if proved, are subject to correction by the process itself... 28 The Board acknowledged that the US military justice system has not changed as much as the Canadian and British systems over the past decades. 29 Concerning UCI, the Board found that in the evidence before it, there is disagreement as to the prevalence of UCI within the US military justice system. The Board concluded that the appellate case United States v. Lewis, 63 M.J. 405 (U.S. Ct. of Military Appeal 2006) shows that the problem of UCI is recognized and can be raised as a defence. The Board stated that “this would presumably extend to the misuse of prosecutorial discretion”. 30 The Board concluded that on the balance of probabilities, the evidence does not substantially impeach the US military justice system.

D. Hazing 31 The Board then assessed the applicant’s submission that there was not adequate state protection against cruel and unusual “hazing” that he could face as discipline from his commanding officer or unit if he were returned to the Army. 32 The Board found that the case of Lowell v. Canada (Minister of Citizenship & Immigration), 2009 FC 649 (F.C.), [Lowell] demonstrates that there is a mechanism for appealing treatment of authorized non-judicial punishment under Army Regulation 27-10. The Board further found that the applicant could also use the tactic of going to the media if he Vassey v. Canada (Minister of Citizenship & Immigration) Andre F.J. Scott J. 83

experiences unauthorized hazing. The Board also noted that the Eighth Amendment of the US Constitution prohibits cruel and unusual punishment. 33 The Board concluded by finding that the applicant was not a Conven- tion refugee or person in need of protection as he had not rebutted the presumption of state protection with clear and convincing evidence. It was therefore unnecessary to consider article 171 of the UNHCR Hand- book and the claim was dismissed.

IV. Relevant Legislation The relevant portions of the Act are appended to this decision.

V. Issues and Standard of Review 34 There are two principal issues in this application: 1) Did the Board ignore or misinterpret evidence or fail to provide adequate reasons for its treatment of the evidence? 2) Did the Board err in its analysis of state protection? 35 Where previous jurisprudence has determined the standard of review applicable to a particular issue before the court, the reviewing court may adopt that standard of review (New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190 (S.C.C.) at paragraph 57 [Dunsmuir]). 36 The question of whether the Board failed to consider the evidence before it is a factual one that usually attracts deference and will be reviewed on the standard of reasonableness (see Dunsmuir above, Miranda Ramos v. Canada (Minister of Citizenship & Immigration), 2011 FC 298 (F.C.), at paragraph 6; Garcia Osorio v. Canada (Minister of Citizenship & Immigration), 2010 FC 907 (F.C.), at paragraph 19). 37 Assessments of the adequacy of state protection raise questions of mixed fact and law. As such, these issues are also reviewable against a standard of reasonableness (see Hinzman above at paragraph 38; James v. Canada (Minister of Citizenship & Immigration), 2010 FC 546 (F.C.), at paragraph 16). 38 In reviewing the Board’s decision using a standard of reasonableness, the Court in concerned with whether the Board has come to a conclusion that is transparent, justifiable, and intelligible and within the range of acceptable outcomes based on the evidence before it (see Dunsmuir 84 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

above, at paragraph 47; Khosa v. Canada (Minister of Citizenship & Im- migration), 2009 SCC 12, [2009] 1 S.C.R. 339 (S.C.C.) at paragraph 59).

VI. Parties Submissions Applicant’s Submissions 39 The applicant submits that his evidence and arguments are vastly different than those put forward in Hinzman above, relied on by the Board. Unlike the applicant, the appellants in Hinzman put forward no information to rebut the presumption of state protection. The applicant’s evidence in this regard included demonstrating that the US court-martial system fails to meet international standards of fairness and that a soldier is unable to raise his motives for desertion as a defence against such charges. 40 The applicant argues that the Board mistreated the evidence on the fairness of the military justice system in the US. The Board stated that it accepted the evidence provided by the applicant in the affidavits of Don- ald G. Rehkopf, Jr., Professor Eugeen Fidell, Marjorie Cohn and Kath- leen M. Gilberd. However, the Board did not provide any reasons for why, despite accepting the information in the expert affidavits, it nonetheless concluded the opposite from what was contained therein. 41 The applicant submits that the significance and probative value of evidence before the Board reasonably increases when it emanates from a more expert source and the responsibility of the decision maker to out- line their reasons for dismissing the evidence that directly contradicts their conclusions also increases. The Board erred by failing to properly consider this evidence. 42 The Board also did not analyze the evidence provided by these individuals demonstrating that the jury selection process, as well as the lack of tenure provided to military judges and appellate judges are inadequate. 43 The applicant further contends that the Board misinterpreted and ignored evidence on the issue of available defences to the charge of desertion. 44 The applicant submits that the Board misinterpreted the US case law on this issue. The applicant submits that the case of Huet-Vaughn above stands for the proposition that the motive for why an individual soldier deserted the military is irrelevant and inadmissible on the question of whether the soldier is guilty of desertion. The applicant submits that an unlawful order defence is only applicable to orders offences and not to Vassey v. Canada (Minister of Citizenship & Immigration) Andre F.J. Scott J. 85

the charge of desertion. Further, the applicant submits that the Board erred in finding that the Huet-Vaughn decision does not limit the scope of the unlawful order defence to war crimes. There was ample evidence before the Board by experts and members of the US military on the application of the Huet-Vaughn case. The Board did not provide reasons for why it preferred its own interpretation of the law in the US to that of military law professor and practitioners and military members. This renders the Board’s reasons inadequate. 45 The applicant submits that this is important because he would not be able to raise the conduct that he was ordered to perform in Afghanistan at a court-martial for the charge of desertion. He argues that there is therefore no state protection for being prosecuted for desertion despite the fact that he deserted because he was ordered to perform acts which would satisfy section 171 of the UNCHR Handbook.

A. State Protection 46 The applicant submits that in addition to the mistreatment of evidence, the Board made several errors in its state protection analysis. 47 The applicant argues that if the Board did truly accept the evidence of the applicant’s four affiants named above that the US military justice system is not an independent or impartial tribunal and is not in conformity with international standards or the Charter, then its conclusion must be that there exists adequate protection for the applicant nonetheless is an unreasonable conclusion. 48 Under paragraphs 3(3)(d) and (f) of the Act, decisions made under sections 96 and 97 of the Act must be consistent with the Charter and must comply with Canada’s obligations under international human rights instruments. The applicant submits that interpreting adequate state protection to be that which falls below standards set out in international human rights instruments and the Charter is unreasonable and contrary to the Act. The applicant submits that this is also contrary to the UNHCR handbook which states at paragraph 60: In such cases, due to the obvious difficulty involved in evaluating the laws of another country, national authorities may frequently have to take decisions by using their own national legislation as a yardstick. Moreover, recourse may usefully be had to the principles set out in the various international instruments relating to human rights, in particular the International Covenants on Human Rights, which contain 86 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

binding commitments for the States parties and are instruments to which many States parties to the 1951 Convention have acceded. 49 In addition, the applicant argues that the Board made conclusions about differential prosecution that were not based on the evidence before it. The Board concluded that “the ability to raise UCI as a defence presumably applies to the exercise of prosecutorial discretion.” The applicant argues that there is no basis in the evidence for this conclusion and that in fact the evidence contradicts it. The decision on whether to initiate charges in the first place in the US is completely within the purview of the Command and therefore would not be considered “unlawful” and is not subject to review on the basis of UCI. The Board’s conclusion was therefore unreasonable. 50 The applicant further submits that the Board concluded that it is appropriate to punish certain soldiers over others for desertion where the prosecution feels there are aggravating factors such as speaking out about the war, because prosecutorial discretion benefits the justice system. However, the applicant submits that if the “aggravating factor” motivat- ing the prosecution is the individual’s expression of his political beliefs, then the prosecutorial discretion has been exercised in a discriminatory and persecutory manner according to section 169 of the UNHCR Hand- book. Aggravating factors cannot include an individual’s race, religion, sexual orientation, gender or political opinion. The Board erred by concluding otherwise. Further, the Board did not provide any meaningful analysis on the evidence before it indicating that members of the US military have been singled out for prosecution because of their political beliefs.

Respondent’s Submissions 51 The respondent submits that the Federal Court of Appeal’s decision in Hinzman and the Supreme Court’s decision in Ward v. Canada (Minister of Employment & Immigration), [1993] 2 S.C.R. 689 (S.C.C.) were binding on the Board. That is, states are presumed capable of protecting their own citizens and this presumption is only displaced with clear and convincing confirmation of the state’s inability to protect a claimant. This presumption is particularly strong with respect to a developed democracy like the United States. The Court of Appeal in Hinzman concluded that the US is a fully functioning democracy with a robust judicial system, that provides significant procedural protection to an individual who is the subject of a court-martial proceeding. These include the Vassey v. Canada (Minister of Citizenship & Immigration) Andre F.J. Scott J. 87

presumption of innocence, assessment by an impartial adjudicator the right to know the case against oneself and a high standard of proof to meet before conviction. Further, the Federal Court of Appeal held, in Sa- tiacum above, that a foreign legal system is presumed to be fair absent evidence that substantially impeaches its processes. Given this, the applicant was required to seek out and exhaust all avenues of protection before he could rebut the presumption of state protection. 52 The applicant made no attempt to seek recourse through any means other than refugee protection. He did not complain to his superiors, choose not to re-enlist, seek re-assignment, seek treatment for mental health issues or seek a discharge on medical grounds before deserting. The respondent submits that the Hinzman above principle that where applicants have not adequately accessed the legal protection available to them in their country, they cannot assert that their rights would not be adequately protected. 53 The respondent submits that the Board did not ignore evidence but rather undertook a detailed and meticulous examination of the evidence before it. The respondent argues that the Board accepted the qualifica- tions of each of the applicant and respondent’s affiants and carefully detailed the evidence provided by all five individuals. The Board weighed the evidence and noted the disagreement between the affiants, but concluded that the self-correcting mechanisms in the military justice system meet the requirements for adequate state protection. The conclusions of the affiants could not be substituted for the determination the Board itself was required to make. The Board also addressed US jurisprudence that while UCI can be a concern with prosecution, there is redress for an accused to raise it as a defence. The applicant is faulting the Board for preferring the evidence of Professor Hansen to that of the applicant’s. 54 The respondent submits that neither of the applicant’s main concerns substantially impeaches the US military justice system; namely, the per- sistence of UCI and the possibility that prosecutorial discretion could be misused. The evidence provided by the affiants does not indicate that even if the accused’s political opinion was considered an aggravating factor in the use of prosecutorial discretion, the accused could not appeal the decision. Similarly, there was no evidence to suggest that persons alleging UCI are unable to exercise their appeal rights. 55 The respondent further submits that the Board reasonably interpreted the case of Huet-Vaughn above to provide that, where a soldier receives an order to commit a positive act that would be considered a war crime 88 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

or other crime “so manifestly beyond the legal power of a commander” to order, the defence of “unlawful orders” is available. The applicant did not put evidence before the Board that the conduct he observed would rise to the level contemplated in paragraph 171, nor that he was ever ordered to perform such acts. The applicant also put no evidence before the Board about the duties he would be assigned if re-deployed and whether they would put him at risk of breaching the rules of armed conflict. 56 The respondent argues that the Board did not ignore evidence regarding the unlawful order defence. It fully appreciated the evidence given by Ms. Cohn and Mr. Gespass and concluded that this evidence did not demonstrate that the defence of illegal order could not be advanced as a defence on a desertion charge, or that the applicant would not be able to advance it in the circumstances of his case. The respondent submits that pursuant to Colby v. Canada (Minister of Citizenship & Immigration), 2008 FC 805 (F.C.), the applicant must first establish that the state would be unable or unwilling to protect him before the Board can consider whether particular facts would bring him within paragraph 171 of the UNHCR handbook. The applicant did not do so. 57 The respondent further submits that the test for adequate state protection is not conformity with international or Charter standards. The respondent submits that the Supreme Court in Genereux above, did not determine the degree of judicial independence required by international law of any court-martial system. Further, the criteria in Genereux and the Findlay v. United Kingdom, [1997] ECHR 8, 24 E.H.R.R. 221 (European Ct. Human Rights) decision relied on by the applicant have not risen to the level of peremptory international legal norms. The American court- martial system meets the criteria of independence established by the UNHCR General Comment No 32: it is independent of the executive, judges enjoy protections guaranteeing security of tenure, and the executive is not able to control or direct the conduct of a court-martial. Further, absent a demonstration that the standards highlighted in the Genereux decision represent minimum international norms, they cannot be used to assess a sufficiency of the protection offered by a foreign legal system. 58 The respondent submits that on the basis of the evidence before it, the Board could reasonably find that the applicant would be adequately protected within the US military justice system. The continued existence of UCI does not rise to this level. Vassey v. Canada (Minister of Citizenship & Immigration) Andre F.J. Scott J. 89

VII. Analysis 1) Did the Board ignore or misinterpret evidence or fail to provide adequate reasons for its treatment of the evidence? 59 Subject to a complete breakdown of the state apparatus, states are presumed to be able to protect their citizens. The applicant bears the onus to rebut this presumption on a balance of probabilities with clear and convincing evidence of the state’s inability to protect. This evidence can be either “testimony of similarly situated individuals let down by the state protection arrangement or the claimant’s testimony of past personal incidents in which state protection did not materialize” (Ward above at 724-725). 60 The evidentiary burden to rebut the presumption is higher when the state in question is a developed democracy. As the Federal Court held in Kadenko v. Canada (Solicitor General) (1996), 143 D.L.R. (4th) 532 (Fed. C.A.) at paragraph 5: When the state in question is a democratic state, as in the case at bar, the claimant must do more than simply show that he or she went to see some members of the police force and that his or her efforts were unsuccessful. The burden of proof that rests on the claimant is, in a way, directly proportional to the level of democracy in the state in question: the more democratic the state’s institutions, the more the claimant must have done to exhaust all the courses of action open to him or her. The Federal Court of Appeal has further considered this elevated burden with respect to the United States, noting in Hinzman above at paragraph 46, that: The United States is a democratic country with a system of checks and balances among its three branches of government, including an independent judiciary and constitutional guarantees of due process. The appellants therefore bear a heavy burden in attempting to rebut the presumption that the United States is capable of protecting them and would be required to prove that they exhausted all the domestic avenues available to them without success before claiming refugee status in Canada. In Satiacum v. Canada (Minister of Employment & Immigration) (1989), 99 N.R. 171 (Fed. C.A.) at page 176 (“Sa- tiacum”) this Court was called upon to consider a claim of insufficient state protection in the United States and commented on the dif- 90 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

ficult task facing a claimant attempting to establish a failure of state protection in the United States: In the case of a non democratic State, contrary evidence might be readily forthcoming, but in relation to a democracy like the United States contrary evidence might have to go to the extent of substantially impeaching, for example, the jury selection process in the relevant part of the country, or the independence or fair-mindedness of the judiciary itself. 61 The Court agrees with the respondent that the findings of the Federal Court of Appeal in Hinzman and Satiacum above are binding on this Court and were so on the Board, it cannot interpret these cases as over- turning the Supreme Court’s decision in Ward above. The Supreme Court clearly stated in Ward that a refugee claimant can rebut the presumption of state protection with evidence of similarly situated individuals let down by the arrangement of state protection. 62 It was therefore open to the applicant to present evidence of similarly situated individuals showing that the system of military justice in the United States was not a domestic avenue available to him in seeking state protection due to the lack of independence, impartiality or the lack of defences to the charge of desertion. But he also had to show that on a balance of probabilities that all of the avenues that were open to him would have resulted in an unfair treatment because of the US military system of justice. [emphasis added] 63 The Board, in turn, was under a duty to consider all evidence before it. This duty did not require the Board to summarize all of the evidence in its decision so long as it properly addressed evidence which contradicted its conclusions (see Cepeda-Gutierrez v. Canada (Minister of Citizenship & Immigration) (1998), 157 F.T.R. 35 (Fed. T.D.); Florea v. Canada (Minister of Employment & Immigration), [1993] F.C.J. No. 598 (Fed. C.A.)). The duty to assess this evidence increased with the expert nature of the affiants providing it (see Gunes v. Canada (Minister of Citizenship & Immigration), 2008 FC 664 (F.C.); Begashaw v. Canada (Minister of Citizenship & Immigration), 2009 FC 462 (F.C.)). 64 The Board’s duty to explain itself increases directly with the relevance of the evidence provided. 65 The evidence presented by the applicant on the independence and impartiality of the court-martial system in the US emanated from several individuals arguably experts in US military law. Mr. Fidell is a Professor Vassey v. Canada (Minister of Citizenship & Immigration) Andre F.J. Scott J. 91

of law at Yale University and the President of the National Institute of Military Justice since 1991. Mr. Rehkopf was a Judge Advocate in the US Air Force since 1976 and has been practicing military law for 34 years. Ms. Cohn is a law professor and has published widely on disen- gagement from the military in the United States. 66 After summarizing the evidence on for several pages, the Board’s analysis of the five affiant’s evidence was somewhat limited. The only conclusion drawn by the Board is that while UCI is a problem, it can be raised as a defence. This and the self-correcting mechanism of article 37 demonstrate that state protection is available. The Board did not comment specifically on all the evidence of the affiants which directly stated that these self-correcting mechanisms were ineffective. The Board did not address the findings of the affiants on the jury selection process, the lack of tenure provided to military judges and the inadequacy of appellate judges. Nor did it indicate why it preferred the evidence of Professor Hansen to that of the four other affiants. But nonetheless it concluded, at paragraph 93 of its decision, that: “Effectiveness in state protection is a consideration but I find that, on a balance of probabilities, the evidence does not substantially impeach the US military system.” Was this conclusion of the Board reasonable? 67 As Mr. Justice de Montigny held in Smith v. Canada (Minister of Citizenship & Immigration), 2009 FC 1194 (F.C.), also commenting on the Board’s assessment of Mr. Rehkopf: “...it was not sufficient to summarize the evidence presented by the applicant. The Board Member should have addressed that evidence and discussed it in his reasons...”. Justice de Montigny further held at paragraph 69 that: ...« I am of the view that his affidavit was not just a lay opinion which the board could reject without providing reasons for doing so. Mr. Rehkopf obviously had a long experience as a military lawyer and has acted as defense counsel, prosecutor and judge for many years. It was open to the Board, of course, to prefer other evidence to that provided by Mr. Rehkopf. »... The Court finds the Board’s lack of analysis of the evidence before it concerning the independence and impartiality of the US court-martial system, as well as the lack of reasons for preferring contrary evidence to that of the applicant to be unreasonable since the documentary evidence 92 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

ignored by the Board in its reasons goes to the one of the central issues of applicant’s claim. 68 Concerning the US Court of Appeals for the Armed Forces case Huet-Vaughn, the Court agrees with the applicant that the Board’s interpretation of the case was unreasonable. The US Court of Appeals for the Armed Forces held that: 43. To the extent that CPT Huet-Vaughn quit her unit because of moral or ethical reservations, her beliefs were irrelevant because they did not constitute a defence... 45. To the extent that CPT Huet-Vaughn’s acts were a refusal to obey an order that she perceived to be unlawful, the proffered evidence was irrelevant. The so-called “Nuremberg defense” applies only to individual acts committed in wartime; it does not apply to the Government’s decision to wage war. [...] The duty to disobey an unlawful order applies only to “a positive act that constitutes a crime” that is “so manifestly beyond the legal power or discretion of the commander as to admit of no rational doubt of their unlawfulness.” [...] CPT Huet-Vaughn tendered no evidence that she was individu- ally ordered to commit a “positive act” that would be a war crime. 69 The Board concluded that this decision did not stand for the principle that “the defence of an unlawful order only applies to extreme cases such as war crimes or grave breaches of the Geneva Convention” and that the “United States Court of Appeals for the Armed Forces has not decided whether an individual could raise the question of whether he or she had been ordered to commit an unlawful act”. 70 However, the applicant’s submissions before the Board were that for the charge of desertion, not disobeying orders, there is no defence. This was corroborated with evidence before the Board from two experts and three members of the US military. While the Board summarized this evidence in the decision, it did not analyze it or provide reasons for rejecting it. Rather, the Board focused on the right of appeal within the court-martial system and found that similarly situated individuals would be able to appeal their cases to the US Supreme Court, which they have not done, and therefore avenues of state protection remain. 71 The Court finds this to be an unreasonable conclusion. First, as the applicant noted in reply, leave to the US Supreme Court was denied in the case of Huet-Vaughn, making this the prevailing law. Further, the evidence of the professors, practionner, and military members in addition to the case of Huet-Vaughn demonstrate that the charge of desertion op- Vassey v. Canada (Minister of Citizenship & Immigration) Andre F.J. Scott J. 93

erates as a strict liability offence where motive for desertion is not relevant. 72 The UNHCR Handbook acknowledges that, as a general rule, prosecution of deserters does not amount to persecution. However, paragraph 171 provides a caveat: Not every conviction, genuine though it may be, will constitute a sufficient reason for claiming refugee status after desertion or draft-evasion. It is not enough for a person to be in disagreement with his government regarding the political justification for a particular military action. Where, however, the type of military action, with which an individual does not wish to be associated, is condemned by the international community as contrary to basic rules of human conduct, punishment for desertion or draft-evasion could, in the light of all other requirements of the definition, in itself be regarded as persecution. 73 While the Board correctly noted that Justice Zinn held in Lowell above, that the applicant must first show that state protection is unavailable before raising the facts under paragraph 171 of the UNHCR handbook, the applicant’s argument went directly to the issue of state protection. 74 Given that the applicant would not be able to present evidence of his motive for desertion nor of the illegality of the conduct that he was required to perform in Afghanistan which could demonstrate a breach of the Geneva Conventions on the rules of armed conflict, this goes directly to the availability of state protection. 75 As noted above, the Board was under a duty to consider the evidence before it and address that which conflicted with its conclusions. It had to provide adequate analysis and reasons for rejecting such evidence. The failure to do so with respect to the issue of applicable defences to the charge of desertion in US court-martial proceedings was unreasonable.

2) Did the Board err in its analysis of state protection? 76 The applicant argued before Board that there is no state protection for the discriminatory application of prosecutorial discretion. The applicant presented evidence before the Board indicating that while the large part of deserters are administratively discharged, those who speak out publicly against the war in Iraq were selected to be court-martialled and prosecuted for desertion. This Court recognized the disproportionate 94 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

prosecution for desertion of those who have spoken out against the wars in Iraq and Afghanistan. 77 For example, in Rivera v. Canada (Minister of Citizenship & Immi- gration), 2009 FC 814 (F.C.), Mr. Justice Russell reviewed a decision of the Board concerning the use of prosecutorial discretion to target individuals more severely through the court-martial process who have spoken out against the war. At paragraph 101, Justice Russell concluded of the Board’s decision that: ...the whole state protection analysis needs to be reconsidered in the light of the stated risk, and supporting evidence, that the U.S. authorities will not neutrally apply a law of general application, but will target the Principal Applicant for prosecution and punishment solely because of her political opinion in a context where other deserters, who have not spoken out against the war in Iraq, have been dealt with by way of administrative discharge. 78 The Board in the case at bar largely ignored the evidence presented by the applicant about similarly situated individuals and prosecutorial discretion. The Board concluded that using prosecutorial discretion is a benefit to the justice system and is appropriate where there are aggravating factors. 79 Paragraph 169 of the UNCHR handbook indicates that: A deserter or draft-evader may also be considered a refugee if it can be shown that he would suffer disproportionately severe punishment for the military offence on account of his race, religion, nationality, membership of a particular social group or political opinion. The same would apply if it can be shown that he has well-founded fear of persecution on these grounds above and beyond the punishment for desertion. 80 As such, the UNHCR handbook, as well as the jurisprudence above, hold that where prosecutorial discretion is used to inflict a disproportionately severe punishment on a deserter because of his or her political opinion, this may amount to persecution. 81 The Court finds that the Board’s failure to assess the evidence before it concerning the application of prosecutorial discretion on the grounds of political opinion was unreasonable. 82 Similarly, the Board speculated that “the ability to raise UCI as a defence presumably applies to the exercise of prosecutorial discretion.” There was no evidence before the Board to support such a finding. Vassey v. Canada (Minister of Citizenship & Immigration) Andre F.J. Scott J. 95

83 As the Federal Court of Appeal held in Satiacum above, the Board’s findings cannot be based upon evidence that is the “sheerest conjecture or the merest speculation”. As such, the Court finds that Board’s analysis on the misuse of prosecutorial discretion in US court-marital proceedings was unreasonable. 84 Given the analysis above concerning the Board’s mistreatment of the evidence about the availability of state protection and its unreasonable conclusions on the use of prosecutorial discretion, the Court concludes that it would be incorrect to allow this decision to stand. 85 The application for judicial review is allowed.

Judgment THIS COURT’S JUDGMENT is that: 1. The application for judicial review is allowed. 2. There is no question of general importance to certify. Application granted.

Annex

Immigration and Refugee Protection Act, SC 2001 c 27 Objectives and Application 3. (3) This Act is to be construed and applied in a manner that ... (d) ensures that decisions taken under this Act are consistent with the Canadian Charter of Rights and Freedoms, including its principles of equality and freedom from discrimination and of the equality of En- glish and French as the official languages of Canada; ... (f) complies with international human rights instruments to which Canada is signatory. Convention refugee 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 96 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

(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. Person in need of protection 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 (iv) the risk is not caused by the inability of that country to provide adequate health or medical care. Person in need of protection (2) A person in Canada who is a member of a class of persons prescribed by the regulations as being in need of protection is also a person in need of protection. UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, HCR/IP/4/Eng/REV.1 60. In such cases, due to the obvious difficulty involved in evaluating the laws of another country, national authorities may frequently have to take decisions by using their own national legislation as a yardstick. Moreover, recourse may usefully be had to the principles set out in the various international instruments relating to human rights, in particular the International Covenants on Human Rights, which contain binding commitments for the States parties and are instruments to which many States parties to the 1951 Convention have acceded. Vassey v. Canada (Minister of Citizenship & Immigration) Andre F.J. Scott J. 97

B. Deserters and persons avoiding military service 169. A deserter or draft-evader may also be considered a refugee if it can be shown that he would suffer disproportionately severe punishment for the military offence on account of his race, religion, nationality, membership of a particular social group or political opinion. The same would apply if it can be shown that he has well-founded fear of persecution on these grounds above and beyond the punishment for desertion. 170. There are, however, also cases where the necessity to perform military service may be the sole ground for a claim to refugee status, i.e. when a person can show that the performance of military service would have required his participation in military action contrary to his genuine political, religious or moral convictions, or to valid reasons of conscience. 171. Not every conviction, genuine though it may be, will constitute a sufficient reason for claiming refugee status after desertion or draft- evasion. It is not enough for a person to be in disagreement with his government regarding the political justification for a particular military action. Where, however, the type of military action, with which an individual does not wish to be associated, is condemned by the international community as contrary to basic rules of human conduct, punishment for desertion or draft-evasion could, in the light of all other requirements of the definition, in itself be regarded as persecution. United States Army Uniform Code of Military Justice 37. Unlawfully Influencing Action of Court (a) No authority convening a general, special, or summary court- martial, nor any other commanding officer, may censure, rep- rimand, or admonish the court or any member, military judge, or counsel thereof, with respect to the findings or sentence adjudged by the court, or with respect to any other exercises of its or his functions in the conduct of the proceedings. No person subject to this chapter may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case, or the action of any convening, approving, or reviewing authority with respect to his judicial acts. The foregoing provisions of the subsection shall not apply with respect to (1) general instruc- tional or informational courses in military justice if such courses are designed solely for the purpose of instructing 98 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

members of a command in the substantive and procedural aspects of courts-martial, or (2) to statements and instructions given in open court by the military judge, president of a special court-martial, or counsel. (b) In the preparation of an effectiveness, fitness, or efficiency report on any other report or document used in whole or in part for the purpose of determining whether a member of the armed forces is qualified to be advanced, in grade, or in determining the assignment or transfer of a member of the armed forces or in determining whether a member of the armed forces should be retained on active duty, no person subject to this chapter may, in preparing any such report (1) consider or evaluate the performance of duty of any such member, as counsel, represented any accused before a court-martial. Bronskill v. Canada (Minister of Heritage) 99

[Indexed as: Bronskill v. Canada (Minister of Heritage)] Jim Bronskill, Applicant and Minister of Canadian Heritage, Respondent and Information Commissioner of Canada, Intervener Federal Court Docket: T-1680-09 2011 FC 983, 2011 CF 983 Simon No¨el J. Heard: April 28, 2011 Judgment: August 11, 2011 Administrative law –––– Standard of review — Miscellaneous –––– Revised standard of review — Reasonableness — Journalist made access to information (ATI) request for copy of Royal Canadian Mounted Police’s files on politician, D — Library and Archives Canada (LAC) consulted with Canadian Security In- telligence Service (CSIS) about retaining D’s dossier — CSIS reviewed documents and indicated to LAC what exemption was claimed over portions of record — LAC indicated to journalist that 456 records could be disclosed, but that others were withheld under exemptions provided by ss. 15 and 19 of Access to Information Act (Act) — Journalist made unsuccessful complaint to Information Commissioner of Canada — Second review of D’s file was undertaken — Jour- nalist brought application for judicial review of LAC’s refusal to disclose information — Application granted — Matter was sent for redetermination to LAC — Applicability of injury-based exemption of s. 15 of Act was to be determined on standard of reasonableness, as this is what is instructed by ss. 50 and 15 themselves — Other cases had proceeded with reasonableness standard when dealing with s. 15 exemptions — Nature of information falling under s. 15 of Act was such that range of acceptable outcomes did exist. Privacy and freedom of information –––– Freedom of information — Fed- eral legislation — Grounds for refusal — Miscellaneous –––– Journalist made access to information (ATI) request for copy of Royal Canadian Mounted Po- lice’s files on politician, D — Library and Archives Canada (LAC) consulted with Canadian Security Intelligence Service (CSIS) about retaining D’s dossier — CSIS reviewed documents and indicated to LAC what exemption was claimed over portions of record — LAC indicated to journalist that 456 records could be disclosed, but that others were withheld under exemptions provided by ss. 15 and 19 of Access to Information Act (Act) — Journalist made unsuccessful complaint to Information Commissioner of Canada — Second review of D’s 100 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th) file was undertaken — Journalist brought application for judicial review of LAC’s refusal to disclose information — Application granted — Matter was sent for redetermination to LAC — Journalist did not raise issue that some pages were missing from D’s file until April 2011 because little to no access was given to these documents in response to ATI request — It was only once second review was done that journalist had access to many portions of documentation — Not identifying missing pages, despite having knowledge of this issue, could not be excused — Nowhere was it stated that all information in LAC’s possession pertaining to or mentioning D had been given — LAC interpreted restrictively ATI request as singular “record” on D. Civil practice and procedure –––– Parties — Intervenors — As friend of the court –––– Journalist made access to information (ATI) request for copy of Royal Canadian Mounted Police’s files on politician, D — Library and Archives Canada (LAC) consulted with Canadian Security Intelligence Service (CSIS) about retaining D’s dossier — CSIS reviewed documents and indicated to LAC what exemption was claimed over portions of record — LAC indicated to journalist that 456 records could be disclosed, but that others were withheld under exemptions provided by ss. 15 and 19 of Access to Information Act (Act) — Journalist made unsuccessful complaint to Information Commissioner of Can- ada — Second review of D’s file was undertaken — Journalist brought application for judicial review of LAC’s refusal to disclose information — Application granted — Matter was sent for redetermination to LAC — No amicus curiae was appointed — To involve amicus at this late stage would have required prolonging case for at least another six months — Given that all claimed exemptions and submitted documentation had been reviewed for second time, involving amicus would not contribute anything more — Because of remedies provided, review of documentation with amicus was not necessary. Privacy and freedom of information –––– Freedom of information — Fed- eral legislation — Grounds for refusal — Confidential information –––– Journalist made access to information (ATI) request for copy of Royal Canadian Mounted Police’s files on politician, D — Library and Archives Canada (LAC) consulted with Canadian Security Intelligence Service (CSIS) about retaining D’s dossier — CSIS reviewed documents and indicated to LAC what exemption was claimed over portions of record — LAC indicated to journalist that 456 records could be disclosed, but that others were withheld under exemptions provided by ss. 15 and 19 of Access to Information Act (Act) — Journalist made unsuccessful complaint to Information Commissioner of Canada (ICC) — Sec- ond review of D’s file was undertaken — Journalist brought application for judicial review of LAC’s refusal to disclose information — Application granted — Matter was sent for redetermination to LAC — Pertaining to first review, concerns that LAC did not meaningfully address analysis under s. 15 of Act were serious and there was nothing to suggest that discretion was considered — ICC Bronskill v. Canada (Minister of Heritage) 101 did not perform thorough investigation, ask probing questions, or secure number of further disclosures from LAC — ICC also did not undertake analysis of s. 19 of Act — Second review was not sole result of exercise of discretion — Second review was undertaken to ensure consistency and compliance with injury assessment found in s. 15 of Act — If discretion was exercised, it was not done in reasonable manner. Privacy and freedom of information –––– Freedom of information — Fed- eral legislation — Miscellaneous –––– Journalist made access to information (ATI) request for copy of Royal Canadian Mounted Police’s files on politician, D — Library and Archives Canada (LAC) consulted with Canadian Security In- telligence Service (CSIS) about retaining D’s dossier — CSIS reviewed documents and indicated to LAC what exemption was claimed over portions of record — LAC indicated to journalist that 456 records could be disclosed, but that others were withheld under exemptions provided by ss. 15 and 19 of Access to Information Act (Act) — Journalist made unsuccessful complaint to Information Commissioner of Canada — Second review of D’s file was undertaken — Jour- nalist brought application for judicial review of LAC’s refusal to disclose information — Application granted — Matter was sent for redetermination to LAC — Information still withheld was not retained in manner consistent with s. 15 of Act — Principles and objectives of Act and of Library and Archives of Canada Act were in and of themselves factors to be considered — Given principles of Act and qualification of LAC’s mandate of preserving and facilitating access to information, there was arguable implicit public interest in ATI requests — To hold onto documents of “historical significance” without public access went against LAC’s pragmatic mandate. Civil practice and procedure –––– Discovery — Discovery of documents — Privileged document — Crown privilege or public interest –––– Journalist made access to information (ATI) request for copy of Royal Canadian Mounted Police’s files on politician, D — Library and Archives Canada (LAC) consulted with Canadian Security Intelligence Service (CSIS) about retaining D’s dossier — CSIS reviewed documents and indicated to LAC what exemption was claimed over portions of record — LAC indicated to journalist that 456 records could be disclosed, but that others were withheld under exemptions provided by ss. 15 and 19 of Access to Information Act (Act) — Journalist made unsuccessful complaint to Information Commissioner of Canada — Second review of D’s file was undertaken — Journalist brought application for judicial review of LAC’s refusal to disclose information — Application granted — Matter was sent for redetermination to LAC — Information still withheld was not retained in manner consistent with s. 15 of Act — Principles and objectives of Act and of Library and Archives of Canada Act were in and of themselves factors to be considered — Given principles of Act and qualification of LAC’s mandate of preserving and facilitating access to information, there was arguable implicit 102 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th) public interest in ATI requests — To hold onto documents of “historical significance” without public access went against LAC’s pragmatic mandate. Cases considered by Simon No¨el J.: Application to proceed in camera, Re (2007), 2007 CarswellBC 2418, 2007 Car- swellBC 2419, 2007 SCC 43, [2008] 1 W.W.R. 223, 51 C.R. (6th) 262, 73 B.C.L.R. (4th) 34, 285 D.L.R. (4th) 193, (sub nom. Vancouver Sun v. Canada (Attorney General)) 368 N.R. 112, 247 B.C.A.C. 1, (sub nom. Named Person v. Vancouver Sun) [2007] 3 S.C.R. 253, 409 W.A.C. 1, (sub nom. Named Person v. Vancouver Sun) 162 C.R.R. (2d) 104, 224 C.C.C. (3d) 1, [2007] S.C.J. No. 43 (S.C.C.) — referred to Attaran v. Canada (Minister of Foreign Affairs) (2009), 191 C.R.R. (2d) 44, 2009 CarswellNat 781, 2009 FC 339, 342 F.T.R. 82 (Eng.), 2009 Car- swellNat 4929, 2009 CF 339 (F.C.) — followed Attaran v. Canada (Minister of Foreign Affairs) (2011), 2011 FCA 182, 2011 CarswellNat 3146, 2011 CarswellNat 4443, 2011 CAF 182, 337 D.L.R. (4th) 552 (F.C.A.) — considered Babcock v. Canada (Attorney General) (2002), 2002 SCC 57, 2002 CarswellBC 1576, 2002 CarswellBC 1577, [2002] 8 W.W.R. 585, 214 D.L.R. (4th) 193, 3 B.C.L.R. (4th) 1, [2002] 3 S.C.R. 3, 3 C.R. (6th) 1, 289 N.R. 341, 168 B.C.A.C. 50, 275 W.A.C. 50, [2002] S.C.J. No. 58, REJB 2002-32276 (S.C.C.) — considered Bisaillon c. Keable (1983), 1983 CarswellQue 384, [1983] 2 S.C.R. 60, 2 D.L.R. (4th) 193, 51 N.R. 81, 4 Admin. L.R. 205, 7 C.C.C. (3d) 385, 37 C.R. (3d) 289, 1983 CarswellQue 28, [1983] A.C.S. No. 65, [1983] S.C.J. No. 65 (S.C.C.) — referred to Blank v. Canada (Minister of Environment) (2001), 2001 FCA 374, 2001 Car- swellNat 2854, 41 C.E.L.R. (N.S.) 59, 2001 CarswellNat 3491, 2002 CAF 374, 216 F.T.R. 203 (note), 281 N.R. 388, [2001] F.C.J. No. 1844 (Fed. C.A.) — distinguished Blank v. Canada (Minister of Justice) (2007), 2007 CarswellNat 836, 2007 FCA 147, 2007 CAF 147, 2007 CarswellNat 2375, [2007] F.C.J. No. 523 (F.C.A.) — distinguished Byer v. Canada (Information Commissioner) (2004), 2004 FC 119, 2004 Car- swellNat 175, 2004 CF 119, 2004 CarswellNat 3042 (F.C.) — considered Canada (Attorney General) v. Almalki (2010), 377 F.T.R. 186 (Eng.), 2010 Car- swellNat 5589, 2010 CF 1106, 2010 FC 1106, 2010 CarswellNat 4260 (F.C.) — considered Canada (Attorney General) v. Almalki (2011), 2011 FCA 199, 2011 Car- swellNat 2096, 2011 CarswellNat 3019, 2011 CAF 199, (sub nom. Canada (Attorney General) v. Kalifah) 271 C.C.C. (3d) 63, (sub nom. Canada (Attorney General) v. Kalifah) 333 D.L.R. (4th) 506 (F.C.A.) — referred to Bronskill v. Canada (Minister of Heritage) 103

Canada (Attorney General) v. Commission of Inquiry into the Actions of Canadian Officials in relation to Maher Arar (2007), 2007 CarswellNat 4542, 316 F.T.R. 279 (Eng.), 72 Admin. L.R. (4th) 68, 2007 FC 766, 2007 CarswellNat 2355, 2007 CF 766, [2008] 3 F.C.R. 248, [2007] F.C.J. No. 1081 (F.C.) — referred to Canada (Information Commissioner) v. Canada (Minister of Industry) (2001), 2001 FCA 253, 2001 CarswellNat 1892, 274 N.R. 341, 14 C.P.R. (4th) 484, 209 F.T.R. 294, 213 F.T.R. 319 (note), 41 Admin. L.R. (3d) 19 (Fed. C.A.) — followed Canada (Information Commissioner) v. Canada (Minister of National Defence) (2011), 331 D.L.R. (4th) 513, 416 N.R. 105, [2011] 2 S.C.R. 306, 2011 Car- swellNat 1474, 2011 CarswellNat 1475, 2011 SCC 25, 18 Admin. L.R. (5th) 181, [2011] S.C.J. No. 25 (S.C.C.) — considered Canada (Information Commissioner) v. Canada (Prime Minister) (1992), 12 Admin. L.R. (2d) 81, 49 C.P.R. (3d) 79, 57 F.T.R. 180, [1993] 1 F.C. 427, 1992 CarswellNat 161F, 1992 CarswellNat 185, [1992] F.C.J. No. 1054 (Fed. T.D.) — followed Canada (Information Commissioner) v. Royal Canadian Mounted Police Com- missioner (2003), 47 Admin. L.R. (3d) 1, 24 C.P.R. (4th) 129, 224 D.L.R. (4th) 1, 301 N.R. 41, (sub nom. Canada (Information Commissioner) v. Canada (Commissioner of the Royal Canadian Mounted Police)) [2003] 1 S.C.R. 66, 239 F.T.R. 315 (note), 2003 CarswellNat 448, 2003 CarswellNat 449, 2003 SCC 8, [2003] S.C.J. No. 7, REJB 2003-38212 (S.C.C.) — considered Canada Packers Inc. v. Canada (Minister of Agriculture) (1988), 53 D.L.R. (4th) 246, 87 N.R. 81, 32 Admin. L.R. 178, [1989] 1 F.C. 47, 1988 Car- swellNat 667, 1988 CarswellNat 719, 26 C.P.R. (3d) 407, [1988] F.C.J. No. 615 (Fed. C.A.) — considered Canada Post Corp. v. Canada (Minister of Public Works) (1995), 1995 Car- swellNat 652, (sub nom. Societe canadienne des postes v. Canada) 1995 CarswellNat 688, 30 Admin. L.R. (2d) 242, 179 N.R. 350, (sub nom. Societe canadienne des postes v. Canada) [1995] 2 F.C. 110, 91 F.T.R. 320 (note), 60 C.P.R. (3d) 441, [1995] F.C.J. No. 241 (Fed. C.A.) — considered Canadian Council of Christian Charities v. Canada (Minister of Finance) (1999), [1999] 4 F.C. 245, 168 F.T.R. 49, 1999 CarswellNat 2844, 99 D.T.C. 5337, [1999] 3 C.T.C. 123, 1999 CarswellNat 848, [1999] F.C.J. No. 771 (Fed. T.D.) — considered Carey v. Ontario (1986), 22 Admin. L.R. 236, 58 O.R. (2d) 352n, 1986 Cars- wellOnt 1011, 1986 CarswellOnt 472, [1986] 2 S.C.R. 637, 35 D.L.R. (4th) 161, 72 N.R. 81, 20 O.A.C. 81, 30 C.C.C. (3d) 498, (sub nom. Carey v. R.) 14 C.P.C. (2d) 10, EYB 1986-67591, [1986] S.C.J. No. 74 (S.C.C.) — referred to 104 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

Charkaoui, Re (2008), 2008 CF 61, 316 F.T.R. 236 (Eng.), 2008 FC 61, 2008 CarswellNat 250, 2008 CarswellNat 78, [2009] 1 F.C.R. 507 (F.C.) — considered Criminal Lawyers’ Assn. v. Ontario (Ministry of Public Safety & Security) (2010), 319 D.L.R. (4th) 385, 255 C.C.C. (3d) 545, (sub nom. Ontario (Minister of Public Safety) v. Criminal Lawyers’ Association) 212 C.R.R. (2d) 300, (sub nom. Ontario (Public Safety & Security) v. Criminal Lawyers’ Association) [2010] 1 S.C.R. 815, 76 C.R. (6th) 283, 1 Admin. L.R. (5th) 235, 402 N.R. 350, (sub nom. Criminal Lawyers’ Assn. (Ont.) v. Ontario (Ministry of Public Safety & Security)) 262 O.A.C. 258, 2010 SCC 23, 2010 CarswellOnt 3964, 2010 CarswellOnt 3965, 84 C.P.R. (4th) 81, [2010] A.C.S. No. 23, [2010] S.C.J. No. 23 (S.C.C.) — considered Do-Ky v. Canada (Minister of Foreign Affairs & International Trade) (1999), (sub nom. Hien Do-Ky Vietnamese Refugee Sponsorship Committee v. Canada (Minister of Foreign Affairs & International Trade)) 164 F.T.R. 160 (note), (sub nom. Do-Ky v. Canada (Ministers of Foreign Affairs & International Trade)) 173 D.L.R. (4th) 515, (sub nom. Hien Do-Ky Vietnamese Refugee Sponsorship Committee v. Canada (Minister of Foreign Affairs & International Trade)) 241 N.R. 308, 1999 CarswellNat 771, (sub nom. Do-Ky v. Canada (Ministers of Foreign Affairs & International Trade)) 86 C.P.R. (3d) 289, [1999] F.C.J. No. 673 (Fed. C.A.) — considered Globe & Mail c. Canada (Procureur général) (2010), (sub nom. Globe & Mail v. Canada (Attorney General)) 220 C.R.R. (2d) 339, [2010] 2 S.C.R. 592, 2010 SCC 41, 2010 CarswellQue 10258, 2010 CarswellQue 10259, (sub nom. CTVglobemedia Publishing Inc. v. Canada (Attorney General)) 407 N.R. 202, (sub nom. Globe & Mail v. Canada (Procureur général)) 325 D.L.R. (4th) 193, 78 C.R. (6th) 205, 94 C.P.C. (6th) 1, [2010] A.C.S. No. 41, [2010] S.C.J. No. 41 (S.C.C.) — referred to Harkat, Re (2008), [2009] 4 F.C.R. 370, 2009 FC 204, 2008 CarswellNat 5335, 2008 CarswellNat 5667, 78 Imm. L.R. (3d) 303, 2009 CF 204, 306 D.L.R. (4th) 269, 339 F.T.R. 65 (Eng.) (F.C.) — distinguished Khadr v. Canada (Attorney General) (2008), 2008 CarswellNat 25, 2008 CF 46, 166 C.R.R. (2d) 134, 54 C.R. (6th) 76, 322 F.T.R. 256 (Eng.), 2008 FC 46, 2008 CarswellNat 377, [2008] 3 F.C.R. 306, [2008] F.C.J. No. 47 (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.) — referred to Bronskill v. Canada (Minister of Heritage) 105

Kitson v. Canada (Minister of National Defence) (2009), [2010] 3 F.C.R. 440, 354 F.T.R. 201 (Eng.), 2009 CarswellNat 5130, 2009 CF 1000, 2009 Car- swellNat 3663, 2009 FC 1000 (F.C.) — considered Maislin Industries Ltd. v. Canada (Minister for Industry, Trade & Commerce) (1984), [1984] 1 F.C. 939, 80 C.P.R. (2d) 253, 10 D.L.R. (4th) 417, 27 B.L.R. 84, 8 Admin. L.R. 305, 1984 CarswellNat 14, 1984 CarswellNat 629 (Fed. T.D.) — considered Murchison v. Export Development Canada (2009), 354 F.T.R. 18 (Eng.), 2009 FC 77, 2009 CarswellNat 252, [2009] F.C.J. No. 121 (F.C.) — distinguished 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 Brunswick) 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. Leipert (1997), 112 C.C.C. (3d) 385, 41 C.R.R. (2d) 266, 85 B.C.A.C. 162, 138 W.A.C. 162, 143 D.L.R. (4th) 38, 1997 CarswellBC 101, 1997 Car- swellBC 102, 207 N.R. 145, 4 C.R. (5th) 259, [1997] 3 W.W.R. 457, [1997] 1 S.C.R. 281, [1997] S.C.J. No. 14 (S.C.C.) — referred to R. v. National Post (2010), 401 N.R. 104, 2010 CarswellOnt 2776, 2010 Cars- wellOnt 2777, 2010 SCC 16, [2010] 1 S.C.R. 477, (sub nom. National Post v. Canada) 254 C.C.C. (3d) 469, (sub nom. National Post v. Canada) 318 D.L.R. (4th) 1, 262 O.A.C. 1, 211 C.R.R. (2d) 1, 74 C.R. (6th) 1, 103 O.R. (3d) 398 (note) (S.C.C.) — followed R. v. Ulybel Enterprises Ltd. (2001), 2001 SCC 56, 2001 CarswellNfld 239, 2001 CarswellNfld 240, 206 Nfld. & P.E.I.R. 304, 618 A.P.R. 304, 275 N.R. 201, 157 C.C.C. (3d) 353, 203 D.L.R. (4th) 513, 45 C.R. (5th) 1, [2001] 2 S.C.R. 867, [2001] S.C.J. No. 55, REJB 2001-25833 (S.C.C.) — followed Rubin v. Canada (Minister of Transport) (1997), [1998] 2 F.C. 430, 1997 Car- swellNat 2762, 134 F.T.R. 240 (note), 221 N.R. 145, 154 D.L.R. (4th) 414, 1997 CarswellNat 2190, [1997] F.C.J. No. 1614 (Fed. C.A.) — referred to Rubin v. Canada Mortgage & Housing Corp. (1988), 21 C.P.R. (3d) 1, 19 F.T.R. 160n, [1989] 1 F.C. 265, 1988 CarswellNat 668, 1988 CarswellNat 726, 32 Admin. L.R. 196, 52 D.L.R. (4th) 671, 86 N.R. 186, [1988] F.C.J. No. 610 (Fed. C.A.) — referred to Ruby v. Canada (Solicitor General) (2000), 187 D.L.R. (4th) 675, (sub nom. Ruby v. Royal Canadian Mounted Police) 256 N.R. 278, 2000 CarswellNat 3423, [2000] 3 F.C. 589, 6 C.P.R. (4th) 289, 42 Admin. L.R. (3d) 214, 2000 106 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

CarswellNat 1106, (sub nom. Ruby v. Royal Canadian Mounted Police) 184 F.T.R. 159 (note), [2000] F.C.J. No. 779 (Fed. C.A.) — considered 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 Saint John Shipbuilding Ltd. v. Canada (Minister of Supply & Services) (1988), 1988 CarswellNat 213, 24 F.T.R. 32, [1988] F.C.J. No. 902 (Fed. T.D.) — considered Saint John Shipbuilding Ltd. v. Canada (Minister of Supply & Services) (1990), 1990 CarswellNat 231, 107 N.R. 89, 37 F.T.R. 80 (note), 67 D.L.R. (4th) 315, [1990] F.C.J. No. 81 (Fed. C.A.) — considered Sherman v. Minister of National Revenue (2002), [2002] 3 C.T.C. 349, 20 C.P.R. (4th) 508, 2002 CFPI 586, 2002 CarswellNat 2410, 2002 Car- swellNat 1173, 2002 FCT 586, [2002] G.S.T.C. 74, 222 F.T.R. 145, [2002] F.C.J. No. 779 (Fed. T.D.) — referred to Statham v. Canadian Broadcasting Corp. (2010), 2010 CAF 315, 2010 Car- swellNat 5394, 2010 FCA 315, 2010 CarswellNat 4389, 326 D.L.R. (4th) 228, 409 N.R. 350 (F.C.A.) — considered Steinhoff v. Canada (Minister of Communications) (1998), (sub nom. Hoogers v. Canada (Minister of Communications)) 83 C.P.R. (3d) 380, 10 Admin. L.R. (3d) 232, 1998 CarswellNat 1140 (Fed. T.D.) — considered X. v. Canada (Minister of National Defence) (1991), 46 F.T.R. 206, [1992] 1 F.C. 77, 1991 CarswellNat 144, 1991 CarswellNat 144F, [1991] F.C.J. No. 817 (Fed. T.D.) — considered X v. Canada (Minister of National Defence) (1992), (sub nom. X. v. Canada (Minister of National Defence)) 58 F.T.R. 93, 1992 CarswellNat 1039, [1992] F.C.J. No. 1006 (Fed. T.D.) — considered 3430901 Canada Inc. v. Canada (Minister of Industry) (2001), 2001 FCA 254, 2001 CarswellNat 1893, [2002] 1 F.C. 421, 45 Admin. L.R. (3d) 182, 14 C.P.R. (4th) 449, 2001 CAF 254, 282 N.R. 284, 2001 CarswellNat 3236, [2001] F.C.J. No. 1327 (Fed. C.A.) — considered Statutes considered: Access to Information Act, R.S.C. 1985, c. A-1 Generally — referred to s. 2 — considered s. 2(1) — referred to s. 4(2.1) [en. 2006, c. 9, s. 143] — referred to s. 6 — referred to s. 9(1)(b) — considered s. 10 — considered Bronskill v. Canada (Minister of Heritage) 107

s. 13 — considered s. 13(1)(a) — referred to s. 15 — considered s. 15(1) — considered s. 15(1)(f) — considered s. 15(2) “activités hostiles ou subversives” — considered s. 15(2) “defence of Canada or any state allied or associated with Can- ada” — considered s. 15(2) “défense du Canada ou d’Etats´ alliés ou associés avec le Canada” — considered s. 15(2) “subversive or hostile activities” — considered s. 16(1)(c) — referred to s. 16(1)(9) — referred to s. 18(d) — referred to s. 19 — considered s. 19(1) — considered s. 20 — considered s. 21(1)(a) — referred to s. 23 — considered s. 25 — considered s. 30 — referred to s. 36(1)(a) — referred to s. 36(1)(b) — referred to s. 36(1)(c) — referred to s. 36(1)(d) — referred to s. 36(2) — referred to s. 37(1) — referred to s. 37(2) — referred to s. 37(5) — referred to s. 41 — considered s. 42 — referred to s. 45 — referred to s. 46 — referred to s. 47 — referred to s. 47(2) — referred to s. 49 — considered s. 50 — considered s. 52 — considered Canada Evidence Act, R.S.C. 1985, c. C-5 Generally — referred to s. 38.04 [en. 2001, c. 41, s. 43] — considered s. 38.04(4) [en. 2001, c. 41, s. 43] — considered s. 38.12 [en. 2001, c. 41, s. 43] — considered 108 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

s. 39 — considered Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23 s. 18 — considered Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 83(1)(d) — considered Library and Archives of Canada Act, S.C. 2004, c. 11 Generally — referred to Preamble — referred to s. 2 “government institution” — referred to s. 2 “government record” — referred to s. 2 “ministerial record” — referred to s. 12 — considered s. 12(1) — considered Privacy Act, R.S.C. 1985, c. P-21 Generally — referred to s. 2 — referred to s. 3 “personal information” (j) — considered s. 3 “personal information” (j)(i) — considered s. 3 “personal information” (j)(iv) — considered Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10 s. 3 — referred to

APPLICATION for judicial review by journalist from decision of Library and Archives Canada refusing to disclose portions of politician’s dossier.

Paul Champ, for Applicant Gregory S. Tzemenakis, for Respondent Patricia Boyd, for Intervener

Simon No¨el J.:

1 The present Application is brought under section 41 of the Access to Information Act, RSC 1985, c A-1 (the Act), whereby the Federal Court is to review Library and Archives Canada’s (LAC) refusal to disclose portions of the Royal Canadian Mounted Police’s dossier on Tommy Clement Douglas, a Canadian politician, deceased on February 24, 1986. The Applicant, Jim Bronskill, is a journalist with the Canadian Press. 2 At issue is what portions, if any, of the 1,142-page of LAC’s Douglas file should be made public, additionally to what had been initially disclosed by LAC after the access to information request (ATI request), and what has also emerged from the Application prior to this Court’s judg- Bronskill v. Canada (Minister of Heritage) Simon No¨el J. 109

ment. It should be noted that the scope of the present Judgment and the underlying ATI request does not extend to the full record on T.C. Doug- las. It only deals with the portions of the record which LAC deemed responsive to the ATI request (see Transcript of the Public Hearing of Feb- ruary 23, 2011, at p. 138).

I. Background A. Thomas Clement Douglas’ Life 3 Thomas Clement Douglas held the office of Premier of Saskatchewan from 1944 to 1961, when he led the first arguably social democratic government in North America. In 1961, he became the first leader of the newly formed New Democratic Party, a title which he held for close to ten years. Much can be said of his accomplishments both as a Member of Parliament and as a member of the Legislative Assembly of Saskatche- wan. The Court mentions in passing Douglas’ spearheading of the creation of the first provincial Medicare plan. It is clear that both History and Canadians from coast to coast have much to learn about Mr. Douglas, and this Application can be seen as contributing in this respect. It can also be said that access to information, whether the subject of the request is well-known or not, benefits all Canadians.

B. The Applicable Law 4 The public’s right to information detained by government is governed by the Access to Information Act and the Privacy Act, RSC 1985, c P-21. The purpose of the Access to Information Act is to enshrine an essential component of democracy: the public’s right to government information (s 2 of the Act). This right to government information is mandatory for both public scrutiny of government activities, as well as the full and meaningful participation in public debate and discussion. If the adage that information is power holds true, then our democracy depends on the broad and liberal interpretation of the Act, subject to valid concerns represented by the exemptions provided. The Act has been recognized as having a quasi-constitutional status by the Supreme Court in Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25 (S.C.C.). 5 The Act itself is unambiguous as to its scope and purpose. Firstly, the Act’s purpose is to extend the public’s right to access to information, and that the Act was not meant to “limit in any way” access to government information (s 2 of the Act). Section 2 of the Act also requires that the 110 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

exemptions to the right of access should be “limited and specific”. This limited scope of the exemptions provided in the Act is essential to the Court’s interpretation of any application brought forth, and Courts have consistently recognized this policy objective as being a core component of the review of refusals of disclosure: It also appears clearly from these two provisions that Parliament in- tended the Act to apply liberally and broadly with the citizen’s right of access to such information being denied only in limited and specific exceptions (Canada Post Corp. v. Canada (Minister of Public Works), [1995] 2 F.C. 110 (Fed. C.A.); see also, inter alia, Canada (Information Commissioner) v. Royal Canadian Mounted Police Commissioner, 2003 SCC 8 (S.C.C.); Rubin v. Canada (Minister of Transport) (1997), [1998] 2 F.C. 430 (Fed. C.A.)). 6 The process for access to information begins with a written and sufficiently detailed request made to the institution that has the records sought (s 6 of the Act). In this case, the Applicant made a request directly to LAC. There is currently no direct process by which citizens may know which access requests are pending and the records sought after in these requests. The “head of a government institution”, as defined by the Act, is responsible for responding accurately and completely to the ATI request (ss 4(2.1) of the Act). Furthermore, the Act instructs that the head of a government institution shall “subject to the regulations, provide timely access to the record” without regard to the identity of the person making the ATI request (ss 4(2.1) of the Act). 7 The head of a government institution may refuse access to the records sought: Where access is refused 10. (1) Where the head of a government institution refuses to give access to a record requested under this Act or a part thereof, the head of the institution shall state in the notice given under paragraph 7(a) (a) that the record does not exist, or (b) the specific provision of this Act on which the refusal was based or, where the head of the institution does not indicate whether a record exists, the provision on which a refusal could reasonably be expected to be based if the record existed, and shall state in the notice that the person who made the request has a right to make a complaint to the Information Commissioner about the refusal. Bronskill v. Canada (Minister of Heritage) Simon No¨el J. 111

Existence of a record not required to be disclosed (2) The head of a government institution may but is not required to indicate under subsection (1) whether a record exists. Deemed refusal to give access (3) Where the head of a government institution fails to give access to a record requested under this Act or a part thereof within the time limits set out in this Act, the head of the institution shall, for the purposes of this Act, be deemed to have refused to give access. Refus de communication 10. (1) En cas de refus de communication totale ou partielle d’un document demandé en vertu de la présente loi, l’avis prévu a` l’alinéa 7a) doit mentionner, d’une part, le droit de la personne qui a fait la demande de déposer une plainte auprès du Commissaire a` l’information et, d’autre part: a) soit le fait que le document n’existe pas; b) soit la disposition précise de la présente loi sur laquelle se fonde le refus ou, s’il n’est pas fait etat´ de l’existence du document, la disposition sur laquelle il pourrait vraisemblablement se fonder si le document existait. Dispense de divulgation de l’existence d’un document (2) Le paragraphe (1) n’oblige pas le responsable de l’institution fédérale a` faire etat´ de l’existence du document demandé. Présomption de refus (3) Le défaut de communication totale ou partielle d’un document dans les délais prévus par la présente loi vaut décision de refus de communication. 8 For it to have sufficient traction, the Act enshrines the independent review of refusals of disclosure as another core principle (ss 2(1)). The Office of the Information Commissioner of Canada is statutorily mandated to review refusals of disclosure if a complaint is made in writing, and may initiate an investigation on its own behalf (s 30). Its investigative powers are clearly set out in the Act, and include the power to sum- mon and enforce the appearance of persons (para 36(1)(a)); the power to administer oaths and evidence (para 36(1)(b) and para 36(1)(c)); and the power to access all government records, subject to security clearance of staff (para 36(1)(d) and ss 36(2)). 9 The Information Commissioner’s investigative mandate is complemented by its obligation to report to the government institution if it finds 112 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

a complaint to be well-founded, and must provide its findings in support (ss 37 (1)). In this respect, the Information Commissioner may also make recommendations and make a request that notice be given of the steps taken or proposed to implement these recommendations, or alternatively, reasons why these are not implemented (ss 37(2) of the Act). Where, following the investigation of a complaint, the head of a government institution maintains the refusal of disclosure of the record, the Information Commissioner informs the complainant that a right of review before the Federal Court is available (ss 37(5) of the Act). However, the Court’s review is of the decision of the head of the government institution to refuse disclosure, not the decision of the Information Commissioner (3430901 Canada Inc. v. Canada (Minister of Industry), 2001 FCA 254 (Fed. C.A.) [herein referred to as Telezone], at para 42). 10 It should also be noted that the Information Commissioner’s mandate is broader than what is alluded to in the present reasons. Suffice to say that the Information Commissioner’s mandate is one that should be taken with the utmost vigour and energy. Truly, the Information Commissioner is one of the custodians of our democracy. 11 Once the Information Commissioner’s review is completed, and if the head of the government institution’s refusal is maintained, the complainant may file an application before the Federal Court for a review of the refusal of disclosure (s 41). The Information Commissioner may file this application as well, and even appear on behalf of the initial complainant (s 42). The Court must be granted access to all the relevant documentation (s 46), and ultimately, is responsible for not divulging any of the protected information during the process of the application (s 47). The nature of the review undertaken by the Court will be discussed below. 12 In the case at bar, the exemption that was chiefly claimed is that of section 15 of the Act. Initially, LAC had refused access on the basis of section 19 as well. These provisions read as follows: International affairs and defence 15. (1) The head of a government institution may refuse to disclose any record requested under this Act that contains information the disclosure of which could reasonably be expected to be injurious to the conduct of international affairs, the defence of Canada or any state allied or associated with Canada or the detection, prevention or suppression of subversive or hostile activities, including, without re- stricting the generality of the foregoing, any such information Bronskill v. Canada (Minister of Heritage) Simon No¨el J. 113

(a) relating to military tactics or strategy, or relating to military exercises or operations undertaken in preparation for hostili- ties or in connection with the detection, prevention or suppression of subversive or hostile activities; (b) relating to the quantity, characteristics, capabilities or deployment of weapons or other defence equipment or of anything being designed, developed, produced or considered for use as weapons or other defence equipment; (c) relating to the characteristics, capabilities, performance, potential, deployment, functions or role of any defence estab- lishment, of any military force, unit or personnel or of any organization or person responsible for the detection, prevention or suppression of subversive or hostile activities; (d) obtained or prepared for the purpose of intelligence relating to (i) the defence of Canada or any state allied or associated with Canada, or (ii) the detection, prevention or suppression of subversive or hostile activities; (e) obtained or prepared for the purpose of intelligence respecting foreign states, international organizations of states or citizens of foreign states used by the Government of Canada in the process of deliberation and consultation or in the conduct of international affairs; (f) on methods of, and scientific or technical equipment for, col- lecting, assessing or handling information referred to in paragraph (d) or (e) or on sources of such information; (g) on the positions adopted or to be adopted by the Government of Canada, governments of foreign states or international organizations of states for the purpose of present or future international negotiations; (h) that constitutes diplomatic correspondence exchanged with foreign states or international organizations of states or official correspondence exchanged with Canadian diplomatic missions or consular posts abroad; or (i) relating to the communications or cryptographic systems of Canada or foreign states used (i) for the conduct of international affairs, (ii) for the defence of Canada or any state allied or associated with Canada, or 114 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

(iii) in relation to the detection, prevention or suppression of subversive or hostile activities. Definitions (2) In this section, “defence of Canada or any state allied or associated with Canada” « défense du Canada ou d’Etats´ alliés ou associés avec le Canada » “defence of Canada or any state allied or associated with Canada” includes the efforts of Canada and of foreign states toward the detection, prevention or suppression of activities of any foreign state directed toward actual or potential attack or other acts of aggression against Canada or any state allied or associated with Canada; “subversive or hostile activities” « activités hostiles ou subversives » “subversive or hostile activities” means (a) espionage against Canada or any state allied or associated with Canada, (b) sabotage, (c) activities directed toward the commission of terrorist acts, including hijacking, in or against Canada or foreign states, (d) activities directed toward accomplishing government change within Canada or foreign states by the use of or the encour- agement of the use of force, violence or any criminal means, (e) activities directed toward gathering information used for intelligence purposes that relates to Canada or any state allied or associated with Canada, and (f) activities directed toward threatening the safety of Canadians, employees of the Government of Canada or property of the Government of Canada outside Canada. Personal information 19. (1) Subject to subsection (2), the head of a government institution shall refuse to disclose any record requested under this Act that contains personal information as defined in section 3 of the Privacy Act. Where disclosure authorized (2) The head of a government institution may disclose any record requested under this Act that contains personal information if (a) the individual to whom it relates consents to the disclosure; (b) the information is publicly available; or Bronskill v. Canada (Minister of Heritage) Simon Noël J. 115

(c) the disclosure is in accordance with section 8 of the Privacy Act. [Emphasis added] Affaires internationales et défense 15. (1) Le responsable d’une institution fédérale peut refuser la communication de documents contenant des renseignements dont la divulgation risquerait vraisemblablement de porter préjudice a` la conduite des affaires internationales, a` la défense du Canada ou d’Etats´ alliés ou associés avec le Canada ou a` la détection, a` la prévention ou a` la répression d’activités hostiles ou subversives, notamment: a) des renseignements d’ordre tactique ou stratégique ou des renseignements relatifs aux manoeuvres et opérations destinées a` la préparation d’hostilités ou entreprises dans le cadre de la détection, de la prévention ou de la répression d’activités hostiles ou subversives; b) des renseignements concernant la quantité, les caractéristi- ques, les capacités ou le déploiement des armes ou des matér- iels de défense, ou de tout ce qui est con¸cu, mis au point, produit ou prévu a` ces fins; c) des renseignements concernant les caractéristiques, les capacités, le rendement, le potentiel, le déploiement, les fonctions ou le rôle des etablissements´ de défense, des forces, unités ou personnels militaires ou des personnes ou organisations chargées de la détection, de la prévention ou de la ré- pression d’activités hostiles ou subversives; d) des el´´ ements d’information recueillis ou préparés aux fins du renseignement relatif a:` (i) la défense du Canada ou d’Etats´ alliés ou associés avec le Canada, (ii) la détection, la prévention ou la répression d’activités hostiles ou subversives; e) des el´´ ements d’information recueillis ou préparés aux fins du renseignement relatif aux Etats´ etrangers,´ aux organisations internationales d’Etats´ ou aux citoyens etrangers´ et utilisés par le gouvernement du Canada dans le cadre de délibérations ou consultations ou dans la conduite des affaires internationales; f) des renseignements concernant les méthodes et le matériel technique ou scientifique de collecte, d’analyse ou de traite- 116 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

ment des el´´ ements d’information visés aux alinéas d) et e), ainsi que des renseignements concernant leurs sources; g) des renseignements concernant les positions adoptées ou en- visagées, dans le cadre de négociations internationales présentes ou futures, par le gouvernement du Canada, les gouvernements d’Etats´ etrangers´ ou les organisations internationales d’Etats;´ h) des renseignements contenus dans la correspondance diplo- matique echang´´ ee avec des Etats´ etrangers´ ou des organisations internationales d’Etats,´ ou dans la correspondance of- ficielle echang´´ ee avec des missions diplomatiques ou des postes consulaires canadiens; i) des renseignements relatifs a` ceux des réseaux de communications et des procédés de cryptographie du Canada ou d’Etats´ etrangers´ qui sont utilisés dans les buts suivants: (i) la conduite des affaires internationales, (ii) la défense du Canada ou d’Etats´ alliés ou associés avec le Canada, (iii) la détection, la prévention ou la répression d’activités hostiles ou subversives. Définitions (2) Les définitions qui suivent s’appliquent au présent article. « activités hostiles ou subversives » “subversive or hostile activities” « activités hostiles ou subversives » a) L’espionnage dirigé contre le Canada ou des Etats´ alliés ou associés avec le Canada; b) le sabotage; c) les activités visant la perpétration d’actes de terrorisme, y compris les détournements de moyens de transport, contre le Canada ou un Etat´ etranger´ ou sur leur territoire; d) les activités visant un changement de gouvernement au Can- ada ou sur le territoire d’Etats´ etrangers´ par l’emploi de moyens criminels, dont la force ou la violence, ou par l’incitation a` l’emploi de ces moyens; e) les activités visant a` recueillir des el´´ ements d’information aux fins du renseignement relatif au Canada ou aux Etats´ qui sont alliés ou associés avec lui; Bronskill v. Canada (Minister of Heritage) Simon Noël J. 117

f) les activités destinées a` menacer, a` l’étranger, la sécurité des citoyens ou des fonctionnaires fédéraux canadiens ou a` mettre en danger des biens fédéraux situés a` l’étranger. « défense du Canada ou d’Etats´ alliés ou associés avec le Canada » “defence of Canada or any state allied or associated with Canada” « défense du Canada ou d’Etats´ alliés ou associés avec le Canada » Sont assimilés a` la défense du Canada ou d’Etats´ alliés ou associés avec le Can- ada les efforts déployés par le Canada et des Etats´ etrangers´ pour détecter, prévenir ou réprimer les activités entreprises par des Etats´ etrangers´ en vue d’une attaque réelle ou eventuelle´ ou de la perpé- tration d’autres actes d’agression contre le Canada ou des Etats´ alliés ou associés avec le Canada. Renseignements personnels 19. (1) Sous réserve du paragraphe (2), le responsable d’une institution fédérale est tenu de refuser la communication de documents contenant les renseignements personnels visés a` l’article 3 de la Loi sur la protection des renseignements personnels. Cas où la divulgation est autorisée (2) Le responsable d’une institution fédérale peut donner communication de documents contenant des renseignements personnels dans les cas où: a) l’individu qu’ils concernent y consent; b) le public y a accès; c) la communication est conforme a` l’article 8 de la Loi sur la protection des renseignements personnels. 13 The exemptions laid out in the Act are to be considered in two aspects by the reviewing Court. Firstly, exemptions in the Act are either class- based or injury-based. Class-based exemptions are typically involved when the nature of the documentation sought is sensitive in and of itself. For example, the section 13 exemption is related to information obtained from foreign governments, which, by its nature, is a class-based exemption. Injury-based exemptions require that the decisionPage: maker analyze whether the release of information could be prejudicial to the interests articulated in the exemption. Section 15 is an injury-based exemption: the head of the government institution must assess whether 118 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

the disclosure of information could “be expected to be injurious to the conduct of international affairs, the defence of Canada or any state allied or associated with Canada or the detection, prevention or suppression of subversive or hostile activities”. 14 In the case at bar, while LAC had custody of some of the sought after records, it was required by the Act and Treasury Board Policy to consult with the institution from which the records originated. In this case, the record originated from the RCMP’s Security Intelligence Division. As this division was replaced by a civilian intelligence service, the Canadian Security Intelligence Service (CSIS), in 1984, LAC consulted with that organization as to the nature of the documentation and the applicability of the Act’s exemptions. 15 The second component of the exemptions under the Act is to determine whether the exemption is mandatory or discretionary. In the case of mandatory exemptions, the provisions of the Act mandate that the decision-maker “shall refuse to disclose” the records when they fall under the exemption (see, inter alia, section 19). In the case of discretionary exemptions, the decision-maker “may refuse” to disclose the record. Sec- tion 15 is a discretionary exemption, the aspects of which will be considered at length in the present reasons. 16 The Library and Archives of Canada Act, SC 2004, c 11 is inextricably linked to the Act. The most obvious link in the present application is that LAC is the respondent to the ATI request, but over and above that, the Library and Archives of Canada Act should be considered in every review of an ATI request, regardless as to the department or decision- maker involved. The responsibilities conferred by section 12 of the Li- brary and Archives of Canada Act to the Librarian and Archivist, the head of LAC support this contention: Destruction and disposal 12. (1) No government or ministerial record, whether or not it is surplus property of a government institution, shall be disposed of, including by being destroyed, without the written consent of the Libra- rian and Archivist or of a person to whom the Librarian and Archivist has, in writing, delegated the power to give such consents. Elimination´ et aliénation 12. (1) L’élimination ou l’aliénation des documents fédéraux ou ministériels, qu’il s’agisse ou non de biens de surplus, est subordon- née a` l’autorisation ecrite´ de l’administrateur général ou de la personne a` qui il a délégué, par ecrit,´ ce pouvoir. Bronskill v. Canada (Minister of Heritage) Simon Noël J. 119

17 Considering the broad definitions of “government or ministerial record” and “government institution” found within the Library and Archives of Canada Act, it can be said that the ultimate approval of destruction and retention of documentation is an integral part of LAC’s mandate. Evidently, Parliament considers access to information in Can- ada and document retention as essential components of citizens’ right to government information. 18 LAC’s objectives are to be considered by any government institution assessing ATI requests as these objectives further compound the Act’s objectives and reinforce the importance of access to government records. In all clarity, LAC’s statutory mandate is defined as: Objects 7. The objects of the Library and Archives of Canada are (a) to acquire and preserve the documentary heritage; (b) to make that heritage known to Canadians and to anyone with an interest in Canada and to facilitate access to it; (c) to be the permanent repository of publications of the Govern- ment of Canada and of government and ministerial records that are of historical or archival value; (d) to facilitate the management of information by government institutions; (e) to coordinate the library services of government institutions; and (f) to support the development of the library and archival communities. Mission 7. Bibliothèque et Archives du Canada a pour mission: a) de constituer et de préserver le patrimoine documentaire; b) de faire connaˆıtre ce patrimoine aux Canadiens et a` quiconque s’intéresse au Canada, et de le rendre accessible; c) d’être le dépositaire permanent des publications des institutions fédérales, ainsi que des documents fédéraux et ministér- iels qui ont un intérêt historique ou archivistique; d) de faciliter la gestion de l’information par les institutions fédérales; e) d’assurer la coordination des services de bibliothèque des institutions fédérales; f) d’appuyer les milieux des archives et des bibliothèques. 120 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

19 This mandate is not a passive one. LAC is instructed by Parliament to “acquire and preserve” the documentary heritage of Canadians. It is also instructed to “make that heritage known” as well as “facilitating access” to it. Insomuch as facilitating access to government documentation is the very objective of the Act, LAC’s mandate is not only similar; it is the logical extension of the Act. The Preamble of the Library and Archives of Canada Act reinforces this synergy between the Act and LAC’s mandate: HEREAS it is necessary that (a) the documentary heritage of Canada be preserved for the benefit of present and future generations; (b) Canada be served by an institution that is a source of enduring knowledge accessible to all, contributing to the cultural, social and economic advancement of Canada as a free and democratic society; (c) that institution facilitate in Canada cooperation among the communities involved in the acquisition, preservation and diffusion of knowledge; and (d) that institution serve as the continuing memory of the government of Canada and its institutions; Attendu qu’il est nécessaire: a) que le patrimoine documentaire du Canada soit préservé pour les générations présentes et futures; b) que le Canada se dote d’une institution qui soit une source de savoir permanent accessible a` tous et qui contribue a` l’épanouissement culturel, social et economique´ de la société libre et démocratique que constitue le Canada; c) que cette institution puisse faciliter au Canada la concertation des divers milieux intéressés a` l’acquisition, a` la préservation et a` la diffusion du savoir; d) que cette institution soit la mémoire permanente de l’administration fédérale et de ses institutions, 20 The use of the preamble of an act to fully grasp its purpose is a method that is without controversy and a useful tool to understand LAC’s mandate and the mission with which it was entrusted with by Par- liament. Professor Ruth Sullivan has stated that preambles and purpose statements are “the most authoritative evidence of purpose” (Ruth Sulli- van, Sullivan on the Construction of Statutes, 5th ed., Lexis Nexis, 2008, at p 271). Professor Côté offers the view that the caselaw has evolved in Bronskill v. Canada (Minister of Heritage) Simon Noël J. 121

a manner such that the preamble is to be considered, unless the circumstances, such as the clarity of the dispositions to be interpreted, justify not considering the indicia of intent that the preamble offers (Pierre-An- dré Côté, avec la collaboration de Stéphane Beaulac et Mathieu Devinat, Interprétation des lois, 4th ed., Les Editions´ Thémis, 2009, at para 226). 21 The Library and Archives of Canada Act emphasizes the accessibility of documentation, as well as its contributory role to Canada’s democracy (“enduring knowledge accessible to all, contributing to the cultural, social and economic advancement of Canada as a free and democratic society”). Again, LAC is mandated with a pragmatic mission: “acquisition, preservation and diffusion of knowledge” [emphasis added]. Ultimately, LAC is the custodian of our documentary heritage and the information contained therein (“continuing memory” or “mémoire permanente”). Whether or not the records are in LAC’s possession or not is beside the point, all government institutions answer to the Librarian and Archivist and those with his delegated authority in terms of document retention. Any decision to dispose of these records thus falls to the Librarian and Archivist or those with his delegated authority (section 12 of the Library and Archives of Canada Act). 22 Not only do the principles of statutory interpretation allow for consideration of statutes adopted on similar issues, the coherence of the Cana- dian legal order requires that the inherent principles of statutes in similar matters be considered fully complementary, especially in an issue as important as access to information. It is clear that the complimentary purposes of the Act and the Library and Archives Act of Canada are such that they are inextricably linked, as would the aims of the Privacy Act if it was to be considered by the Court in the present application. Professor Sullivan offered a learned perspective on statutes on the same subject: The presumptions of coherence and consistent expression apply as if the provisions of these statutes were part of a single Act. Definitions in one statute are taken to apply in the others and any purpose statements in the statutes are read together. (Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed., Lexis Nexis, 2008, at p 412) [Emphasis added] 23 This approach is consistent with the approach of the Supreme Court in R. v. Ulybel Enterprises Ltd., 2001 SCC 56 (S.C.C.) in terms of interpreting statutes in similar matters. 24 It should be noted that Madam Justice Sharlow of the Federal Court of Appeal has stated in Blank v. Canada (Minister of Environment), 2001 122 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

FCA 374 (Fed. C.A.) that “the Court should consider only the Act and the jurisprudence guiding its interpretation and application. Laws requir- ing disclosure in other legal proceedings cannot narrow or broaden the scope of disclosure required by the Access to Information Act.” How- ever, in Blank, the Court was asked to import the Stinchcombe standard of disclosure in criminal matters to the ATI requests. The Court distin- guishes the Blank case with the present application and comments therein with regards to the Library and Archives of Canada Act. Again, the Li- brary and Archives of Canada Act and the Access to information Act are statutes adopted in pari materia, and are thus not incompatible and do not have the same implications as importing the Stinchcombe standard of disclosure of criminal law to ATI requests. 25 Thus, the dynamic mandate and purpose of LAC, including the intrin- sic value of documentary archives and access thereof, must be considered by any decision-maker when considering ATI requests, as these fully complement the objectives and spirit of the Act itself. 26 This Court is mandated with the important task of safeguarding the confidentiality of the information it is to assess and must take “every reasonable precaution” to protect it from disclosure (s 47 of the Act). The Federal Court is also mandated with a similar task in other national security matters. Under the Canada Evidence Act, RSC 1985, c C-5, section 38.12 and subsection 38.04(4) entrust the Court with the responsibility of protecting confidential information. Under the Immigration and Refugee Protection Act, SC 2001, c-27, paragraph 83(1)(d) confers to the Court the responsibility to protect the information submitted in the context of security certificates. 27 However, under the Canada Evidence Act and under the Immigration and Refugee Protection Act, the power to draft summaries of the information is clearly provided for by statute. This power has not been clearly given by Parliament to the Information Commissioner or the decision- maker. The summary accomplishes a balance between the protection of national security information and the right to know a case or to be provided with relevant information. In the context of access to information, the right to access to information in and of itself could be balanced with national security information by providing summaries. While the Court could consider the issuance of summaries under the broad powers of section 50, it should be noted that this is a lengthy and resource-intensive exercise. It can be anticipated that the present application could have proceeded more efficiently if the head of the government institution and the Bronskill v. Canada (Minister of Heritage) Simon No¨el J. 123

Information Commissioner had the power to issue summaries, which could then be reviewed by the Court.

C. History of the Proceeding 28 Since the Applicant’s original ATI request in November 2005, the request and subsequent proceedings have evolved in such a way that a general history is required to render a clear picture of the situation, as it may be illustrative of the dynamics of access to information in Canada. Applications under the Act are supposed to proceed in a summary way (s 45 of the Act). As will be seen, the nature and volume of the records were such that proceeding in a summary way was not possible. It would be expected that such a historical file would be processed more efficiently through all stages. 29 The Applicant’s request was brought to LAC in November 2005 and stated the following: A copy of the RCMP Security Service File(s) on Thomas Clement (Tommy) Douglas. (see attached biography). The 20th anniversary of Mr. Douglas’s death is February 24, 2006. I ask that you begin processing this request immediately as it will likely involve several weeks of preparation given the backlogs in handling applications under the Access to Information Act. 30 As indicated by the Public Affidavit of Nicole Jalbert, Access to In- formation and Privacy Coordinator for the Canadian Security Intelli- gence Service (CSIS), the Douglas dossier was to be retained “because of its historical significance”. It was transferred to the National Archives of Canada, as it was then, in April 2000. 31 As the records were contained in the “RG146 — Records of the Ca- nadian Security Intelligence Service” file, LAC proceeded to consult with CSIS. After this initial consultation, the Senior Analyst in charge of the file wrote to the Applicant on December 9, 2005, indicating that an extension of up to 390 days was required beyond the statutory 30 day limit, as a result of the required consultations with CSIS, as prescribed under 9(1)(b) of the Act. 32 By way of a letter from the Senior Analyst at LAC, CSIS was instructed as follows (Exhibit 1 to the Cross-Examination of Nicole Jalbert, March 2, 2010): If you wish us to withhold these records or portions thereof, please mark them accordingly. We require a detailed written rationale demonstrating that the information recommended for exemption falls 124 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

under one or more provisions of the Access to Information Act. Other substantiating information you can produce which will help us to support an exemption would also be useful. 33 Citing concerns of administrative expediency, Nicole Jalbert indicated during her crossexamination that CSIS only relied upon “sort of an umbrella rationale”, which gives an appreciation to LAC analysts about the general rationale behind exemptions, but not case-specific evidence (pp 40-41 of the Cross-Examination of Nicole Jalbert, January 21, 2010). The review undertaken by CSIS aimed to see if the documents properly fell within the section 15(1) exemption of the Act. On October 31, 2006, CSIS provided LAC with the redacted documents with an indication of what exemption was claimed over the portions of the record (Cross-Ex- amination of Bill Wood, March 8, 2010). 34 The rationale document provided by CSIS was submitted in the public documentation, albeit in a redacted form. As will be seen later, as a result of the ex parte, in camera portion of the application, redacted portions of this document became public. The rationale document as well as the “Library and Archives (LAC) Consultations” document are now publicly available as a result of the present application. 35 The internal review of the record indicates that the Senior Analyst assigned to the review of CSIS’ recommendations was given the file on December 5, 2006 (“Access to Information Request — A-2005- 00450/MIC — Bronskill, Jim (Media)”, Exhibit 2 to the Cross-Examina- tion of Bill Wood, March 8, 2010). 36 On December 12, 2006, LAC’s Senior Analyst wrote to the Applicant indicating that 456 records from the file could be disclosed, but that the others were to be withheld under the exemptions provided by sections 15 and 19 of the Act. It was indicated that section 10 was also relied upon, whereby the institution was refusing to confirm or deny the existence of the records. It was later indicated that the reference to section 10 was said to be inadvertent. 37 On January 17, 2007, the Applicant made a formal complaint to the Information Commissioner of Canada, protesting “the excessive number and scope of the exemptions applied to the records”. 38 By way of a letter dated August 27, 2009, more than two years after this complaint was filed, the Information Commissioner found that the Applicant’s complaint was not justified. Further, the Information Com- missioner indicated that its office had reviewed the documents strictly under the prism of section 15(1) of the Act, and that it was not necessary Bronskill v. Canada (Minister of Heritage) Simon No¨el J. 125

to review the documents under section 19(1), as the documents were deemed to be properly withheld under section 15(1). 39 The Application for judicial review pursuant to section 41 of the Act was brought before this Court in October 2009. Pursuant to section 52 of the Act, Madam Prothonotary Aronovitch granted leave to the Respon- dent to file evidence on an ex parte basis by way of an Order dated De- cember 9, 2009. The Respondent sought to strike two affidavits from the record, which were deemed irrelevant and opinion-based. While acqui- escing that some of the portions of the Affidavits of Wesley Wark and Craig Heron were opinionated, Madam Prothonotary Tabib denied the Minister’s motion to strike the affidavits by an Order dated February 11, 2010. 40 Pursuant to section 52 and the nature of the section 15 exemption claimed, Chief Justice Lutfy assigned this Court to hearing the Applica- tion, both for the in camera portion, as well as the public hearing (Order dated September 7, 2010). 41 The ex parte portion of the hearing took place in Ottawa on Novem- ber 30, 2010. In light of the concerns highlighted by the Supreme Court in Ruby v. Canada (Solicitor General), 2002 SCC 75 (S.C.C.) and Chief Justice Lutfy in Kitson v. Canada (Minister of National Defence), 2009 FC 1000 (F.C.) and recently confirmed by the Federal Court of Appeal in Attaran v. Canada (Minister of Foreign Affairs), 2011 FCA 182 (F.C.A.), above, it was clear for all the Parties involved, including the Court, that the ex parte, in camera hearing of the Application was to be limited to the very minimum, so as to not adversely affect the open court principle as well as the Applicant’s interests. As related by Associate Chief Justice Jerome in Maislin Industries Ltd. v. Canada (Minister for Industry, Trade & Commerce), [1984] 1 F.C. 939 (Fed. T.D.), at page 942, the directions for proceeding on an ex parte, in camera basis “should be such as to safeguard the public interest in the administration of justice, and the rights of any parties not permitted to participate”. The Court independently also reviewed the complete, unredacted record before proceeding to this ex parte, in camera hearing. 42 After an ex parte teleconference, a summary of the ex parte, in camera hearing was prepared by counsel for the Respondent at the request of the Court. It was approved by the Court and filed. Summarily, it related 126 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

the process followed during the closed hearing, as well as the Court’s concerns. The Summary indicates the following: i. Concerns addressed by the Court were: a. Whether additional information could be released in two of the documents previously released to the Ap- plicant, entitled “Rationale Document for CSIS exemptions used by National Archives” and “Library and Archives (LAC) Consultations” b. To what extent is the mandate of Library and Archives Canada addressed in the evidence. c. How was the discretion under section 15 exercised by Library and Archives Canada? d. To what extent was that exercise of discretion reasonable? ii. Counsel for the Minister brought precision to the categories of information that had been protected by presenting the Court with a series of examples through specific reference to the documents. iii. Counsel for the Minister advised the Court of its intention, and undertook, to review a number of documents for possible release. iv. The Court presented counsel for the Minister with a number of documents that were of concern; the purpose of which was to examine the extent to which the mandate of Library and Archives Canada was considered during the exercise of discretion under section 15. 43 Due to extraneous circumstances, the public hearing which was to be held on December 14, 2010 was adjourned on consent and was to be rescheduled. In the meantime, counsel for the Minister submitted by way of a letter dated December 13, 2010 that the matter be adjourned for 90 days while the Respondent undertook a review of the documents in good faith in order to release more information further to the in camera hearing. Additional disclosure was to be made before March 31, 2011. At the time, counsel for the Applicant opposed this new review of documentation, as it was argued that the record should be evaluated as it was initially placed before the Court. It was nonetheless filed before the Court on February 16, 2011. 44 The Court indicated in a teleconference with the parties on December 17, 2010, that the present Application could proceed directly to judgment Bronskill v. Canada (Minister of Heritage) Simon No¨el J. 127

on the basis of the written representations of the Parties. However, counsel for the Parties instructed that the matter should proceed to a public hearing, as there were live issues to be debated in a public forum. The hearing was set for February 23, 2011, in Ottawa and went ahead as scheduled. 45 The public hearing allowed the Parties to make representations on the nature of the section 15(1) exemption of the Act, as well as other issues that will be dealt with in the present reasons. However, through a letter submitted on February 24, 2011, counsel for the Respondent clarified certain aspects of the representations made during the public hearing. 46 Apart from the considerations pertaining to the second review of the documentation, counsel for the Respondent clarified what was alluded to in terms of changes in policy within CSIS and LAC as a result of the proceedings. In the letter of February 24, 2011, it was said that “CSIS recommended the release of most of the records obtained through technical sources (intercepts and surveillance) when the subject of interest was transitory in nature. This recommendation will be applied to all CSIS files that were transferred to LAC, because of their historical importance, from this point forward”. This was noted to be a “significant departure” in which historical records were reviewed by CSIS and LAC. However, what consists of a subject of interest of transitory nature remains to be defined with more precision.

D. The Second Review of the Douglas File 47 As noted above, a second review of the Douglas file was undertaken by the Respondent and filed before the Court just before the public hearing. 48 Firstly, in the letter dated February 24, 2011 (see para 46 of these reasons), counsel for the Respondent clarified the three reasons why a second review of the documentation was undertaken by the Respondent. These three reasons alluded to were: more than five years had passed between the original request and the hearing of the application; the Re- spondent had acknowledged to the Court that there were inconsistencies in the withholding of information; and a number of comments during the in camera hearings were such that it “made it appropriate to conduct a further review”. 49 Secondly, in the letter dated February 24, 2011, the rationale for the release of additional information was further detailed by counsel for the Respondent. In this letter, counsel for the Respondent also stated that the 128 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

exemption of section 19(1) was no longer relied upon. During the review of the documentation, the Court found that section 19(1) concerns could still be found within the documents. However, as section 19 was not argued or relied upon, the analysis strictly deals with section 15(1). 50 In light of the second review of the litigated file, the Court was faced with an important question: what was the nature of this second review of the documents? Is it a de novo decision, which should proceed before the Information Commissioner before the Court can validly review them? At first glance, it could appear as though the requirements of section 41 imply that the matter be put to the Information Commissioner before being put before the Court. This is also the interpretation this section received recently in Statham v. Canadian Broadcasting Corp., 2010 FCA 315 (F.C.A.), at para 64. 51 This issue was raised during the public hearing, but was left open as the Parties required time to make supplementary submissions. In this respect, the Court also instructed the Parties to contact the Office of the Information Commissioner in the view of obtaining its position on whether the Court had jurisdiction to consider this second review of the Douglas dossier. 52 By consent of the Parties, the Information Commissioner brought a motion in writing to be granted intervener status for the jurisdictional issue. Leave was granted by the Court by an Order dated March 28, 2011 for the Information Commissioner to be granted status as an intervener in regards to the jurisdictional issue. 53 The Commissioner framed the jurisdictional issue as follows: Does the requirement in s.41 of the ATIA that the Commissioner in- vestigate a refusal to disclose records, or parts thereof, prior to the commencement of a s.41 ATIA application for review remove the jurisdiction of the Federal Court to review the information released by LAC on February 16, 2011? 54 Relying on Byer v. Canada (Information Commissioner), 2004 FC 119 (F.C.), the Information Commissioner submitted that once the section 37(2) of the Act report was provided, the office was functus officio for the purpose of the application, absent a new complaint made to the Office of the Information Commissioner. Furthermore, as the same exemption was claimed in the new review of the documents, the Commis- sioner had thus examined the first release of documents and found the complaint not to be founded. Hence, no new exemptions were raised, and Bronskill v. Canada (Minister of Heritage) Simon No¨el J. 129

the documents at issue were the very same. As such, the Information Commissioner is argued to be functus officio for the Application. 55 By an Oral Direction dated April 5, 2011, the Court granted the Par- ties leave to file supplementary submissions to address the second review of documents more elaborately. 56 Counsel for the Applicant submitted further representations in regards to the supplementary disclosure. Counsel appropriately highlighted that the documents made public through the second review showed the flawed logic behind the Respondent’s initial assessment of the records. Furthermore, counsel for the Applicant pointed out that portions of documents were missing from the record. 57 The essential question of the missing documentation and the fragmen- tation of the Douglas dossier will be dealt with in the present reasons, as it is a critical element of the application. 58 The Respondent has argued that disclosure was refused when information taken out of context could be unfair to Mr. Douglas. The Appli- cant submitted that this was unjustified and that it is a “patronizing approach”. 59 Citing a precedent from the United Kingdom, the Applicant also suggested that an amicus curiae or a special advocate be appointed at the late stage in the application to conduct the review of the records. It is said that the nature and extent of the documents concerned were such that they could constitute a burden on the Court. 60 Counsel for the Respondent vigorously opposed this request for several reasons: firstly, it was said that all the issues have been fully presented to the Court; secondly, that it was for the Court to conduct a de novo review; thirdly, that appointing an amicus curiae would render the role of the Information Commissioner meaningless; and, lastly, that the authorities provided were to be distinguished as they arose in different legal contexts. 61 As the thorough history of this application has been dealt with, it is proper to address the question of the applicable standards of review in this application.

E. The Applicable Standards of Review 62 As indicated, the Application was brought under section 41 of the Act. Moreover, the exemption claimed by LAC in this instance is the section 15 national security exemption. Section 50 calls upon the Court 130 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

to determine if the head of the institution had “reasonable grounds on which to refuse” disclosure, full or partial, of the records in question. 63 At face value, the plain reading of section 50 indicates that the review proceeds on the assessment of the reasonableness of LAC’s refusal of disclosure. Indeed, “reasonable grounds” for withholding the information is the standard provided by section 50. Furthermore, section 15 instructs that the head of the government institution may refuse disclosure if the disclosure could “reasonably be expected to be injurious” to the subject matters identified in section 15. On the basis of the plain reading of these sections, the Court could satisfy itself that the review of the refusal of disclosure should proceed on the assessment of a reasonableness standard. 64 Indeed, this Court has applied the reasonableness standard of review to the applications brought under section 50 (see, inter alia, Steinhoff v. Canada (Minister of Communications) (1998), 83 C.P.R. (3d) 380 (Fed. T.D.); X v. Canada (Minister of National Defence) (1992), 58 F.T.R. 93 (Fed. T.D.) (Strayer J.); Kitson, above). The pragmatic and functional analysis required to assess the standard of review could be resolved on the basis of the statute and the case law (New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9 (S.C.C.), at para 57 and Khosa v. Canada (Minister of Citizenship & Immigration), 2009 SCC 12 (S.C.C.), at para 18). 65 However, what decision is the Court to review? Should the Court proceed in a one-step analysis of the refusal to disclose under the grounds provided under section 15, or is there more under sections 15 and 50 that is required of the Court? 66 This Court has adopted different approaches to its powers of review provided by the Act under sections 49 and 50. Indeed, sections 49 and 50 remain distinct, and the assessment of the standards of review needs to adapt itself to the particular realities of these provisions of the Act. The determination of the standards of review under section 49 cannot be im- ported in the analysis under section 50. Likewise, the Court’s analysis cannot subsume one exemption to another, even if the Court’s power is derived from the same section, i.e. section 49 or section 50. The nature of the exemptions provided in the Act is such that the standard of review is not to be found in sections 49 or 50, but rather, in the wording of the exemption itself, in this case, section 15. 67 Section 49 gives the Court power to order disclosure or to make any order deemed appropriate arising from the refusal of disclosure under Bronskill v. Canada (Minister of Heritage) Simon No¨el J. 131

sections of the Act that are not referred to in section 50. Section 50 itself gives the Court power to intervene in matters arising from section 14 (federal-provincial affairs), section 15 of the Act (national security and international affairs), paragraph 16(1)(c) (enforcement of laws and conduct of an investigation), paragraph 16(1)(d) (security of penal institutions) and paragraph 18(d) (financial interests of government). What is common between the refusals reviewed under section 50 is that the head of the government institution refusing disclosure has the discretion to do so, and the exemptions are injury-based, not class-based. 68 This dichotomy between mandatory and discretionary exemptions as well as injury-based and class-based exemptions in the Act implies that the Court’s review of refusals to disclose is highly contingent of the section under which the exemption was claimed. Class-based exemptions are provided when the nature of the information is such that it can be determined on the standard of correctness whether the exemption claimed under the Act applies or not (Telezone, above; Canada (Information Commissioner) v. Canada (Minister of Industry), 2001 FCA 253 (Fed. C.A.); Sherman v. Minister of National Revenue, 2002 FCT 586 (Fed. T.D.)). It is feasible for the Court to assess whether a document falls within a class-based exemption or another. For example, either information was obtained in confidence from a foreign government or it was not (paragraph 13(1)(a) of the Act). Either information is personal information under section 19 of the Act or it is not. The determination of a class-based exemption is indeed one that lends itself to a review on a correctness basis, as counsel for the Applicant noted during the public hearing; these exemptions are of a “binary” nature. 69 However, the applicability of the injury-based exemption of section 15 is to be determined on the standard of reasonableness. Firstly, this is what is instructed by section 50 and section 15 themselves (“reasonable grounds to refuse disclosure”, “reasonably be expected to be injurious...”). Secondly, this Court has proceeded with the reasonableness standard when dealing with section 15 exemptions (Do-Ky v. Canada (Minister of Foreign Affairs & International Trade) (1999), 164 F.T.R. 160 (note) (Fed. C.A.)), at para 7; Kitson v. Canada (Minister of National Defence), above; Steinhoff v. Canada (Minister of Communica- tions), above; X v. Canada (Minister of National Defence), (Strayer J.), above; Canada (Information Commissioner) v. Canada (Prime Minister) (1992), [1993] 1 F.C. 427 (Fed. T.D.)). Thirdly, the Court notes the nature of the information falling under section 15 is such that “a range of 132 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

acceptable outcomes defensible in fact and in law” does exist in terms of what constitutes information injurious to the matters highlighted in section 15. Reasonable people can reasonably disagree as to what falls within section 15, and the present application is the perfect example of this. 70 Thus, for an application under section 50 contesting the application of the section 15 exemption, the first step is to assess whether the information could reasonably be expected to be injurious to the conduct of international affairs, the defence of Canada or any allied or associated state, or the detection, prevention or suppression of subversive or hostile activities, as defined by section 15. The standard of proof in this respect is that of the reasonable expectation of probable harm, as indicated in Canada Packers Inc. v. Canada (Minister of Agriculture) (1988), [1989] 1 F.C. 47 (Fed. C.A.). 71 The assessment of the applicable standards of review also calls for the assessment of the other component of section 15: its discretionary nature. The dichotomy between mandatory and discretionary exemptions needs to be emphasized by the Court in the assessment of the review to be undertaken. If an exemption is mandatory, the first step, i.e. the evaluation of whether information falls within an exemption, will be sufficient. In these cases, as there is no discretion, the head of the government institution has an obligation to refuse to disclose if the exemption applies. Thus, there is only one decision to review: whether the application of the exemption is correct or reasonable, according to the exemption claimed. 72 When the Court is faced with a discretionary exemption, it must also review the exercise of the head of the institution’s discretion in refusing disclosure. This was expressly discussed by Justice Rothstein, as he then was, in the case of Canada (Information Commissioner) v. Canada (Prime Minister), above, when the following was noted at paragraph 23: In the case of mandatory exemptions, the only decision to be made is whether the record comes within the description that the Act requires be exempted from disclosure. In the case of discretionary exemptions such as that under section 14, two decisions are necessary: first, does the record come within the description that is contemplated by the statutory exemption invoked in a particular case; and second, if it does, should the record nevertheless be disclosed. [Emphasis added] 73 This two-step analysis for the refusal of disclosure under discretionary exemptions was confirmed by Justice Nadon, as he then was, in the Bronskill v. Canada (Minister of Heritage) Simon No¨el J. 133

case of Do-Ky v. Canada (Minister of Foreign Affairs & International Trade), [1997] 2 F.C. 907 (Fed. T.D.), at para 32, a judgment which was appealed on other grounds and confirmed by the Appeal Division of the Federal Court of Canada, as it then was (Do-Ky (CA), above). Also, while this case dealt with the section 21(1)(a), the Federal Court of Ap- peal confirmed in Telezone, above, at para 47, that the exercise of discretion was also to be reviewed “on the grounds normally available in administrative law for the review of administrative discretion, including unreasonableness”. The Federal Court of Appeal also adopted a two-step approach in Canada (Information Commissioner) v. Canada (Minister of Industry), 2001 FCA 253 (Fed. C.A.). More recently, although considering a provincial statute, the Supreme Court confirmed that not only is the qualification of the records to be reviewed, but also the exercise of discretion when an act confers it to the decision-maker (Criminal Lawyers’ Assn. v. Ontario (Ministry of Public Safety & Security), 2010 SCC 23 (S.C.C.)). 74 It appears as though the two-step analysis for discretionary exemptions has not always been clearly and consistently applied by this Court. However, for the Act’s objects and purpose to be given full meaning and breadth, the two-step analysis, where the exercise of discretion must also be reviewed on a reasonableness standard, must prevail. 75 Firstly, the Act clearly sets out that decisions on the disclosure of government information should be reviewed independently of government. It is the Office of the Information Commissioner that assumes part of this essential duty of independently reviewing refusals of disclosure under its statutory mandate. However, this statutory power falls short of ordering disclosure of documents. While the Commissioner has a crucial role to play in access to information requests, it is clear that the Commis- sioner’s powers can only go so far, and whose recommendations are within the realm of political sanctions. It is the Federal Court that has the power to order disclosure, and to make any other orders as deemed appropriate, as per sections 49 and 50 of the Act. Thus, for the review to be truly independent of government, both the application of the exemption and the exercise of discretion, if applicable, are to be reviewed by the Court. 76 The two-step approach to the analysis and review of claimed exemptions under section 15 of the Act, under reasonableness for both issues, has recently been confirmed by the Federal Court of Appeal in Attaran v. Canada (Minister of Foreign Affairs), above. 134 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

77 These elements indicate that applications under the Act are more than a typical application for judicial review. This is supported by the fact that applications for review are brought directly under the Act and that broad remedies are available to the Court, implying that this is not a question of standards of review per se. The Court’s role in the process is also broader: in camera hearings are conducted and submissions from Appli- cants can only argue in abstracto as to why refusals of disclosure are not justified (Ruby v. Canada (Solicitor General), [2000] 3 F.C. 589 (Fed. C.A.), at para 36; Attaran v. Canada (Minister of Foreign Affairs), above, at para 26). In another respect, depending on the exemption claimed, a decision-maker’s discretion may be at play, calling for some or no deference from the Court. 78 In Canada (Information Commissioner) v. Royal Canadian Mounted Police Commissioner, 2003 SCC 8 (S.C.C.), the Supreme Court interpreted the scope and purpose of the Act, although this was done in the context of section 19, a class-based, mandatory exemption, pertaining to personal information. Justice Gonthier conducted a full pragmatic and functional analysis of the standard of review under section 19 of the Act. In this respect, Justice Gonthier emphasized the principle of independent review provided for by the Act, as well as the fact that applying exemptions of the Act imply legal analysis, something the RCMP Commis- sioner had no expertise in. This led the Supreme Court to conclude that there was a less deferential standard to be considered. More precisely, the following was noted in respect to the Act’s objectives: In my opinion, this purpose is advanced by adopting a less deferential standard of review. Under the federal scheme, those responsible for answering access to information requests are agents of a government institution. This is unlike the situation under many provincial access to information statutes, where information requests are reviewed by an administrative tribunal independent from the executive (Macdonell v. Quebec (Commission d’acc`es a` l’information), 2002 SCC 71 (CanLII), [2002] 3 S.C.R. 661, 2002 SCC 71). A less deferential standard of review thus advances the stated objective that decisions on the disclosure of government information be reviewed independently of government. Further, those charged with responding to requests under the federal Access Act might be inclined to interpret the exceptions to information disclosure in a liberal manner so as to favour their institution (3430901 Canada Inc. v. Canada (Minister of Industry), 2001 FCA 254 (CanLII), [2002] 1 F.C. 421, 2001 FCA 254, at para. 30). As such, the exercise of broad powers of Bronskill v. Canada (Minister of Heritage) Simon No¨el J. 135

review would also advance the stated purpose of providing a right of access to information in records under the control of a government institution in accordance with the principle that necessary exceptions to the right of access should be limited and specific. Finally, the nature of the issue before the Court also militates in favour of providing broad powers of review. The dispute requires the RCMP Commissioner to interpret s. 3(j), and in particular, the statement that personal information does not include “information about an individual who is or was an officer or employee of a government institution that relates to the position or functions of the individual ...”. Thus, the Commissioner is called upon to interpret the Access Act and the Privacy Act, taking into account the general principles underlying them. This is a question of law that does not turn on any finding of fact. It is also a question of a highly generalized nature, owing to the fact that the Access Act and the Privacy Act determine the disclosure obligations for each of the many institutions governed by the Access Act. These factors further indicate that courts ought not to be restrained in reviewing the Commissioner’s decisions. [Emphasis added] 79 This Court cannot import the totality of the Supreme Court’s learned reasoning in Canada (Information Commissioner) v. Royal Canadian Mounted Police Commissioner, above, as the exemption claimed was different. Furthermore, correctness cannot be adopted as the standard of review, namely because it runs counter to the plain-reading of section 15 of the Act and because the decision-maker retains some discretion in the decision to withhold information from disclosure. 80 However, some of the Supreme Court’s findings give proper context to the underlying dynamics of access to information law in Canada. Firstly, as the Federal Court of Appeal noted in Telezone, above, which was cited approvingly by Justice Gonthier, institutions responding to access to information requests may tend to apply exemptions liberally so as to limit disclosure and scrutiny of their organization. Also, it remains true that decisions on access to information require an interpretation of the Act, which is inherently a legal question for which the reviewing Court is indeed the proper forum for such a determination. 81 It should also be noted that counsel for the Respondent indicated, while discussing another topic during the Cross-Examination of Nicole Jalbert, that “a judicial review application is a de novo review by the Federal Court and a judge of the Federal Court sees the records and makes their own determination on whether the claimed exemptions apply 136 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

to the records” (Transcript of the Cross-Examination of Nicole Jalbert, March 2, 2010, p 9). 82 Considering these elements, and for exemptions under the Act to be truly “limited and specific”, as required by law, as well as the fact that the Act to be interpreted in a “purposive and liberal manner” (Statham v. Canadian Broadcasting Corp., 2010 FCA 315 (F.C.A.)), it is clear that the Court reviewing refusals of disclosure under discretionary exemptions are to review 1) whether the documents fall within the exemption claimed and 2) whether discretion was exercised properly. However, the Act’s objectives and their interpretation by the courts is such that this discretion is on the lower end of the spectrum, and that the Court is given ample jurisdiction and powers to review the exemptions claimed, as well as the exercise of discretion. This conclusion is necessary for the Act to be given its full meaning and breadth. As the Federal Court of Appeal noted in Telezone, above, at para 36, “if the Court were to confine its duty under section 41 to review ministerial refusals of access requests by deferring to ministerial interpretations and applications of the Act, it would, in effect, be putting the fox in charge of guarding the henhouse” (see also Canadian Council of Christian Charities v. Canada (Minister of Finance) (1999), 99 D.T.C. 5337 (Fed. T.D.)). Therefore, some deference has to be given, but not to the point of neutralizing the role of the judiciary as provided for by the legislation.

F. Determinative Questions 83 The questions raised by the case at bar are as follows: 1. Were the documents properly considered as section 15 exempted documents? 2. What factors are to be considered in the exercise of discretion? 3. Was the exercise of discretion reasonable in the circumstance? 84 The Court will consider both the documentation as it was reviewed initially, as well as the second exercise of discretion that is the second review. This is necessary in order to give the most representative analysis of this case as it proceeded before the Court. Furthermore, it should be noted that two of the reasons advanced by counsel for the Respondent for the second review result from the Court proceedings themselves: the passage of time and the Court’s comments in the ex parte, in camera hearings. It cannot be that the Respondent will be exempt from the Court’s Bronskill v. Canada (Minister of Heritage) Simon No¨el J. 137

scrutiny and analysis by way of Judgment because discretion was exercised de novo during the proceedings. 85 After detailing general considerations applicable to the case at bar, the Court will review the withheld information as it was classified and submitted by the Respondent.

II. Analysis A. Preliminary Matters (1) The completeness of the file before the Court 86 After the second release of the Douglas dossier, counsel for the Ap- plicant appropriately submitted to the Court that the documentation submitted was not complete, and that sections of documents were absent from the file (for example, pp199-202; pp 213-215; pp 238-242; pp 645- 649; pp 750-754; pp 819-821; pp 832-836). As this was never brought to the attention of the Court, and the Court itself did not notice this, a further public hearing was held to address this important issue. 87 Typically, the missing pages are portions of intelligence reports on other targets where only some portions are found within the ATI documentation. Some of the sections pertaining to T.C. Douglas are still within the file, others are still within the file but do not address T.C. Douglas. As such, there are no indicia of what could be found in the missing portions of the report. 88 The Respondent addressed these concerns with additional submissions and affidavits. It was confirmed that what was transferred to the Applicant was the complete record as it was its LAC’s possession. No copies of this file were kept by CSIS. However, the affidavits are silent as to whether there is more information in LAC’s possession about T.C. Douglas, for example, if he would be mentioned or targeted by an RCMP program or anything of this nature. The initial referral to section 10 of the Act in LAC’s initial response to the ATI request leaves the Court with doubts, if not concerns, about this issue. It has been stated on the public record that documents which could be covered under section 13 of the Act (Information obtained in confidence of a foreign government, international organization, provincial government, etc) remain with CSIS, and were not subject to the present application. 89 These doubts are further confirmed by counsel for LAC’s submission that the Applicant’s request “was not a request for access to all records related to Mr. Douglas in the possession or control of LAC”. LAC inter- 138 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

preted the Applicant’s ATI request literally. Indeed, what was requested was a “copy of the RCMP Security Service File(s) on Thomas Clement (Tommy) Douglas” [Emphasis added — it is plural]. Of course, the Ap- plicant would be interested in all the documents detained by LAC transferred by the RCMP or CSIS concerning T.C. Douglas. The wording of his request specified “the RCMP Security Service File(s)”, which could arguably include information on T.C. Douglas found in other files. 90 By way of example, counsel for the Applicant suggested that “if Mr Douglas’ name turns up on a document titled, for example, “Security Panel: Plans for Internment of Dissenters”, the public should know”. In- deed, what has transpired from the Respondent’s response is that such a document would not have been included in response to the Applicant’s ATI request. Again, the initial mention of LAC’s reliance on section 10 of the Act is perhaps not as inadvertent as indicated. Maybe the initial approach of referring to section 10 was replaced by a strictly literal interpretation of the ATI request, making the reference to section 10 unnecessary. Sadly, the content and scope of what information the government holds concerning T.C. Douglas was never addressed ex parte, as the Court was led to believe that there was only one “playing field”, that which constitutes the documentation submitted in response to the ATI request, save from the information emanating from foreign sources, which remains with CSIS. There needs to be a balance in an institution’s literal response to an ATI request and whether there would be more on the subject sought that is linked to the ATI request, more so when the institution is LAC, the custodian of Canada’s history and documentary heritage. 91 As for the missing pages, Ms. Jalbert’s affidavit referred and enclosed the relevant portions of an RCMP policy applicable during the time that the Douglas file was kept active (““I” Directorate Manual of Filing for Operation, Case and Policy Files”, January 1st, 1959). Applying a process known as “extracting”, the filing clerks would only incorporate into a file the relevant portions of a record with the first and last page of the original report. However, Ms. Jalbert could not address to what extent this was applied to the Douglas file. It appears likely that this policy was applied to the portions of the documentation with missing pages. How- ever, documents comparable in length and subject did not miss pages. Hence, it remains unclear as to why there were missing pages. 92 More importantly, Ms. Jalbert attests the following: “When I reviewed the records contained in the Tommy Douglas file in January, Bronskill v. Canada (Minister of Heritage) Simon No¨el J. 139

2010, and when the request was initially processed, I noticed that some pages were missing. (...) Because the issue of the missing pages was not raised by the applicant before April 18, 2011, and did not otherwise appear to be an issue, it was not addressed in the affidavit I swore in Janu- ary 2010.” 93 This is a troubling assertion. There is no wonder why the Applicant did not raise the issue: little to no access was given to these documents in response to the ATI request. It is only once the second review was done by the Respondent that the Applicant had access to many portions of the documentation. The Applicant raised the issue at the first reasonable opportunity given. Hence, the affiant’s approach is disingenuous, and is further compounded by counsel’s unsubstantiated assertion that “the purpose of the Act is to provide a right of access to information in records under the control of a government institution. The right of access is not to be confused with a right to the preservation of records”. 94 It is worrisome that such is the approach taken by the Respondent, designated by law as responsible for (a) acquiring and preserving the documentary heritage of Canada; (b) making that heritage known to Canadians and to anyone with an interest in Canada and facilitating access to it; (c) being the permanent repository of publications of the Gov- ernment of Canada and of government and ministerial records that are of historical or archival value (section 7 of the Library and Archives of Canada Act). Furthermore, this completely undermines what has been deemed “necessary” by the Preamble of the Library and Archives of Canada Act, namely: HEREAS it is necessary that (a) the documentary heritage of Canada be preserved for the benefit of present and future generations; (b) Canada be served by an institution that is a source of enduring knowledge accessible to all, contributing to the cultural, social and economic advancement of Canada as a free and democratic society; (c) that institution facilitate in Canada cooperation among the communities involved in the acquisition, preservation and diffusion of knowledge; and (d) that institution serve as the continuing memory of the government of Canada and its institutions; [Emphasis added] 140 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

Attendu qu’il est nécessaire: a) que le patrimoine documentaire du Canada soit préservé pour les générations présentes et futures; b) que le Canada se dote d’une institution qui soit une source de savoir permanent accessible a` tous et qui contribue a` l’épanouissement culturel, social et economique´ de la société libre et démocratique que constitue le Canada; c) que cette institution puisse faciliter au Canada la concertation des divers milieux intéressés a` l’acquisition, a` la préservation et a` la diffusion du savoir; d) que cette institution soit la mémoire permanente de l’administration fédérale et de ses institutions, 95 Contrary to what is submitted, there is an arguable right to the preservation of Canada’s documentary heritage. For example, if an overzealous document-destruction policy were adopted, it would surely be reviewable by the Court. It is entirely within LAC’s mandate to ensure an adequate preservation of Canada’s documentary heritage, and it is troubling that the contrary was argued by LAC, the custodian of Canada’s history, before this Court. 96 It is also worrisome that Bill Wood, Acting Director of the Access to Information, Privacy and Personnel Records Division at LAC, swears that “LAC neither verifies the completeness of the record, the content of the record nor does it do a page count of the record”. Bill Wood attests that “the record that was before the Court was the same as the record that was in the care and control of LAC in the circumstances and that the hard-copy Tommy Douglas File from which the request was processed did not contain the missing pages”. Additional missing pages were identified by LAC, and the Court thanks LAC for its efforts, albeit belated, to address these pressing issues. One has to wonder what would have happened had the Applicant not identified these missing pages in the context of this application. It is true the answers given are not entirely satisfac- tory, but the sworn information is such that LAC has gone as far as it can in respect to the issue of missing pages. 97 Ms. Jalbert was present during the ex parte hearing, as was Mr. Wood. As discussed above, and as is clear from the caselaw, ex parte submissions are to be made under a duty of utmost good faith (Ruby, above; see also para 41 of these reasons). 98 Not identifying missing pages, despite having knowledge of this issue, cannot be excused under the premise that “it was not addressed by Bronskill v. Canada (Minister of Heritage) Simon Noël J. 141

the Applicant”. In the context of the ex parte hearing, not alluding to other documents which would be of interest to the Applicant, or not explaining LAC’s literal interpretation of the ATI request are of concern and may be associated to breaches of the duty of utmost good faith highlighted by the Supreme Court in Ruby, above. Or, simply, not telling the Court that LAC has more documents concerning T.C. Douglas in its possession could also be a breach of the duty of candor. In the interest of clarity, a discussion was held on the applicability of Ruby to the ex parte hearing, and counsel for the Respondent recognized on many occasions ex parte his duty as an officer of the Court of utmost good faith. Let it be clear: it is not counsel for the Respondent’s conduct which is being reviewed, but rather, his client’s and CSIS’. 99 As for remedies for this aspect of the case, it seems as though the Court has already done what it could in the circumstances by ordering an inquiry as to the completeness of the file. Unsatisfying answers were given, but it appears that LAC is content with this approach. During the last public hearing, the Court made it clear that it would be ready to consider involving CSIS in some way, but counsel for both parties declined. There is not much more a Court can do in such circumstance. 100 In this respect, as the ATI request identified that it was the RCMP Security Service record(s), with a clear indication of a possibility of a plurality of records that were sought, the Court is not entirely satisfied that LAC has meaningfully responded to the request. Nowhere is it sworn or stated that, for example, “all the information in LAC’s possession pertaining or mentioning T.C. Douglas has been given”. Rather, the focus is drawn on the intelligence file on T.C. Douglas itself. Counsel for the Respondent stated in writing that “it was not a request for access to all records related to Mr. Douglas in the possession or control of LAC”. In this light, one can quote the case of Saint John Shipbuilding Ltd. v. Canada (Minister of Supply & Services) (1988), 24 F.T.R. 32 (Fed. T.D.), at para 6, in support of the disclosure of relevant ancillary information, more so when this information could be seen as being not being “ancillary” at all, being encompassed by the ATI request: It seems to me that the Respondent is acting within the spirit of s.2 of the Act in making available to the Requesters not just the specific document requested but ancillary documentation or information which would facilitate the ability of the Requesters to understand the government information which they have requested. Indeed, I can envisage circumstances in which the Respondent could be properly crit- 142 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

icized for withholding ancillary information of that sort once it has determined that the primary information should be released. 101 The Court finds that additional steps are to be taken by LAC, in light of the consistent characterization of the litigated records as the “responsive records”. Counsel for the Respondent argues that “there is no judicial authority supporting the suggestion that the Court should order LAC to conduct a different search, one is broader than the applicant’s own request.” The Court is inclined to believe that LAC interpreted restrictively the ATI request as the “record” (singular) on T.C. Douglas, which would only be the intelligence file itself, and not whether more information, if not all, the information on the individual in LAC’s control was sought. It was. It is reasonable to infer this from the request from the standardized ATI request form, which, it should be said, does not provide much space or envisage a dissertation as to the exact scope of the ATI request. It is an access to information request that was addressed to LAC, not a literal access to records request. Surely, reasonable inferences must be made by LAC to address whether it is meaningfully responding to the ATI request. 102 Evidently, there are concerns as to not creating a context where re- questors under the Act would be able to make broad, imprecise ATI requests. However, these reasons should not be interpreted as condoning this and encouraging overbroad and imprecise ATI requests. Simply, in this case, the request was sufficiently clear and the Court is not satisfied that it has been meaningfully addressed. 103 It is true that the Court’s powers under section 50 of the Act are re- medial, implying that orders arise from a refusal of disclosure. Justice Strayer indeed indicated in X v. Canada (Minister of National Defence), above, that “refusal of access is a condition precedent to an application” under sections 49 and 50 of the Act. 104 In this case, the Court takes the Respondent’s possible restrictive interpretation of the ATI request as a possible refusal of disclosure in and of itself. Also, the breaches of the duty of utmost good faith arising from the ex parte portion of the application are such that the remedy under section 50 is justified. 105 Otherwise, there are refusals of disclosure in this case, and it is open for the Court to make an order under section 50. If the Court’s jurisdiction to make the following order falls into question, one could also rely on the inherent jurisdiction of the Court to ensure compliance with the Bronskill v. Canada (Minister of Heritage) Simon No¨el J. 143

high standards set out in Ruby, above, which are applicable to these proceedings. 106 As will be seen, the remedy crafted is not onerous: either there are more records or there are not, or LAC has another explanation. If the Respondent relies upon section 10 of the Act, then it shall formally constitute a refusal for which the Court currently has no jurisdiction to evaluate. 107 Given that LAC’s mandate is proactive, aims to facilitate access to government records, and that LAC must seek to make Canada’s documentary heritage known, the Court orders, pursuant to section 50 of the Act, that LAC justify, in writing, to the Applicant whether it has more information on T.C. Douglas in its control, beyond what has already been disclosed within the present application, or if it relies on section 10 of the Act, or if any other response is warranted. Contrary to what counsel for the Respondent submits, it is not about expanding the ATI request. Rather, it is about ensuring that a restrictive interpretation of the ATI request has not prevailed. 108 Perhaps, if Canada proceeded as other democracies do, with a declassification process of dated records, many of these issues would arise in a more limited context. This would also make it easier for the Respondent to meet its evidentiary burden of providing specific and detailed evidence for documents or portions thereof still withheld despite declassification. It would also be less taxing for CSIS’ resources, for LAC’s resources, and indeed, for the Court’s as well. 109 In respect to the completeness of the records and the compliance with the ATI request, the sole binding order aims to ensure that LAC has com- plied with the ATI request’s spirit and intent, that is, to understand the RCMP’s interest in T.C. Douglas.

(2) The Amicus Curiae Request 110 As discussed above, the counsel for the Applicant had made a last minute request that the Court should avail itself of the broad powers provided by section 50 of the Act in order to appoint an amicus curiae in order to help the Court with its analysis and review of the documentation. 111 The power to appoint amicus curiae is not expressly provided for within the Act. Under the Canada Evidence Act, the appointment of an amicus has been done in more than one instance (see, for example, 144 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

Khadr v. Canada (Attorney General), 2008 FC 46 (F.C.)). In the security certificate context, special advocates are appointed and accomplish functions that are much broader than typical amici curiae. The Applicant has argued that the broad powers conferred by section 50 of the Act are such that the Court does indeed have the power to appoint amicus curiae. The Respondent argued that not only was the appointment of an amicus not necessary, but that such an order was not contemplated by the legislation. 112 In the context of access to information in Steinhoff v. Canada (Minister of Communications) (1998), 83 C.P.R. (3d) 380 (Fed. T.D.), Justice Rothstein, as he then was, refused a motion seeking to grant access to litigated documents by counsel for the applicant, subject to an undertaking of non-disclosure, an undertaking of obtaining proper security clearance and an undertaking of not using the documents for any other purpose. 113 For the purpose of this application, no amicus shall be appointed. Firstly, to involve an amicus at this late stage would require prolonging the case for at least another six months. The Court was aware that such a request could arise, and during the early stages of the application, at no time was this request brought to the Court. Hence, it did not arise in a timely manner, notably because it arose after lengthy reviews of the documentation by the Court. Secondly, the Court has reviewed for a second time all the claimed exemptions and the documentation submitted. To involve an amicus at this stage would not contribute anything more. Thirdly, because of the remedies provided by the present reasons, a review of the documentation with an amicus is not necessary. 114 Without deciding this issue, the Court assumes for the purposes of this file only that the appointment of an amicus could fall within the ambit of the broad powers of section 50 of the Act.

(3) The Evidence in Support of Confidentiality 115 Apart from counsel’s representations during the closed and public hearings, counsel for the Respondent submitted three affidavits. Two of them have public and confidential versions. The first is from Nicole Jalbert, the Access to Information and Privacy Coordinator for CSIS. As an exhibit to Ms. Jalbert’s Public Affidavit, an “umbrella” document sets out the main grounds on which portions of the documentation were withheld. Summarily, the Public Affidavit sets out three grounds for which the information should not be disclosed. Firstly, disclosure could identify employees, internal procedures and administrative methodologies of Bronskill v. Canada (Minister of Heritage) Simon No¨el J. 145

CSIS. Secondly, the disclosure could identify or tend to identify CSIS’ interest in individuals, groups or issues, including the existence or absence of past or present investigations, their intensity and degree of success. Thirdly, Ms. Jalbert contends that the information could tend to identify sources of information or the content of information provided by a source, technical or human. Ms. Jalbert’s affidavit also included a brief history of CSIS and how it assumed the RCMP’s Intelligence Branch’s mandate upon its creation. 116 Ms. Jalbert’s affidavits did not indicate the specific relation between disclosure of precise documents and the alleged injury: only general, class-based arguments were submitted about the nature of the documentation and the injury caused if released to the public. Also, no information was submitted as to whether discretion was exercised for the release of information, or whether if it was released because there was no injury resulting from its disclosure. In respect to discretion, no information was submitted as to whether historical interests were balanced with national security concerns. 117 As discussed, a second review of the documentation was undertaken by LAC, which undeniably proceeded with consultation with CSIS. As a result of the second review, it appears some of the grounds on which the Respondent relied to refuse disclosure were no longer relied upon with the same intensity, namely in regards to “transitional operational interests” and technical sources. Thus, Ms. Jalbert’s affidavits must be taken into consideration in light of the second review, as it nuances the arguments brought forth initially in regards to the alleged injury resulting from disclosure. 118 The second set of affidavits on file is those of Bill Wood, Acting Di- rector of the Access to Information, Privacy and Personnel Records Divi- sion of LAC. Mr. Wood clarified LAC’s mandate and detailed the process followed for the assessment of Mr. Bronskill’s ATI request. 119 The third affidavit is that of Heather Squires, an articling student employed with the Department of Justice. The affidavit presents what is otherwise known as a Vaughn Index. It is titled “Recommendations Sheet”, and indicates what provision of the Act is used to justify whether records were withheld. However, as section 19(1) is no longer in play, it can be said that the Recommendations Sheet is not particularly useful, as all records are withheld under 15(1). The Recommendations Sheet does not detail what aspect of section 15(1) is contemplated. A more specific list was made available to the Court on an ex parte basis. This list basically 146 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

correlates the grounds for refusal brought forth by Ms. Jalbert with the specific pages of the record. No such list was provided for the second review. The affidavit of Heather Squires also provides a redacted document entitled “Rationale Document for CSIS Exemptions Used by Na- tional Archives”. The unredacted version was submitted on an ex parte hearing, and following this hearing, the Court advised the Respondent to consider whether more portions of this document could be disclosed. This was done by the Respondent, and it now falls within the public domain. This document details the rationales behind CSIS’ interpretation of section 15, as well as other exemptions of the Act. 120 Also, during the course of the closed hearing, counsel for the Respon- dent made representations as to how injury could result from disclosure. This was also dealt with to a certain extent in the public context. 121 Information was submitted ex parte to classify documents under different headings to indicate which type of information was protected. This methodology was not followed for the second review, and so, the Court can only rely on the general argumentation submitted. 122 Such is the Respondent’s evidence. In all candour, the Court can state that the enterprise of reviewing the documentation consisted mainly of deductions and reading into the Respondent’s general submissions and evidence. Courts have consistently recognized the requirements of “specific and detailed” evidence as the Respondent’s burden in an ATI case. The large volume of documents, spanning over forty years of RCMP activities, probably did not lend itself to the timeconsuming enterprise of specifically and precisely detailing the alleged injury, but surely it is not for the Court to endeavour such an enterprise without more evidence from the Respondent. Considering the important interests at play when dealing with national security information, it was clear that the application could not be granted on the sole basis of the Respondent’s incapacity to meet evidentiary requirements. However, it should be said that the Court’s resources were considerably taxed during the course of the review of the documentation, as the evidence did not deal specifically with the documentation. Surely, the onus should not be on the Court to infer probable injury from over 1000 pages of documentation. More should be done on the Respondent’s part to provide more specific information, especially as a result of the second review of the documentation. Bronskill v. Canada (Minister of Heritage) Simon No¨el J. 147

B. Were the documents properly considered as section 15 exempted documents? (1) General Considerations 123 As stated above, the present application deals with section 15 of the Act. In keeping with the two-step analysis, the first step consists in identifying whether the documents fall under the claimed exemption or not. Under section 15, disclosure of the documents must be found to be “reasonably expected to be injurious to the conduct of international affairs, the defence of Canada or any state allied or associated with Canada or the detection, prevention or suppression of subversive or hostile activities”. As the grounds for injury are indicated generally, section 15 goes on to describe elements of what could constitute such injurious disclosure of information. 124 The Federal Court of Appeal has recently stated that the burden of proof under an application under the Act depends on the circumstance of the case (Attaran v. Canada (Minister of Foreign Affairs), above, at paras 20-27). Ultimately, the Federal Court of Appeal decided that within the context of the application brought under section 15, where ex parte hearings were held, and where the applicant had no precise knowledge, that “the appellant cannot be required in this case to bear the burden of establishing on a confidential record he cannot access that the respondent failed to give consideration to the exercise of discretion. The burden of proof is on the respondent to establish that the discretion was exercised in a reasonable manner” (Attaran v. Canada (Minister of Foreign Af- fairs), above, at para 27). A similar context arises in the present application, due to the nature of the file, its volume and the particular position in which the Applicant is placed. Hence, it is for the Respondent to show that the discretion was reasonably exercised. The Respondent also bears the burden of establishing the applicability of the exemptions claimed. 125 The standard of proof to be met by the Respondent, as the party re- sisting disclosure, requires that a “reasonable expectation of probable harm” is to be shown (Canada Packers Inc. v. Canada (Minister of Agri- culture), above; Canada (Information Commissioner) v. Canada (Prime Minister), above). This burden of proof has been interpreted as a “heavy onus” (Canada (Information Commissioner) v. Canada (Prime Minister), above, at para 113; see also Sherman v. Minister of National Revenue, 2004 FC 1423 (F.C.); Rubin v. Canada Mortgage & Housing Corp. (1988), [1989] 1 F.C. 265 (Fed. C.A.)). 148 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

126 Justice Rothstein, as he then was, articulated the standards which heads of government institutions refusing disclosure must meet in the seminal Canada (Information Commissioner) v. Canada (Prime Min- ister) case cited above. Noting that the Court can only act upon the evidence before it, Justice Rothstein stated that the party seeking to maintain confidentiality must demonstrate its case “clearly and directly” and that a “general approach to justifying confidentiality is not envisaged” (Canada (Information Commissioner) v. Canada (Prime Minister), above, at para 119). It has also been stated that a clear and direct linkage is required between the evidence adduced and the alleged injury, the latter which must also not be speculative (see, inter alia, Do-Ky (FCTD), at paras 32- 34). 127 The Court can do no better than to cite Justice Rothstein again in the case of Canada (Information Commissioner) v. Canada (Prime Min- ister), above, at para 122, when it was stated in all clarity that: Descriptions of possible harm, even in substantial detail, are insufficient in themselves. At the least, there must be a clear and direct linkage between the disclosure of specific information and the harm alleged. (...) The more specific and substantiated the evidence, the stronger the case for confidentiality. The more general the evidence, the more difficult it would be for a court to be satisfied as to the linkage between disclosure of particular documents and the harm alleged. 128 While the Court must rely in this case on the evidence before it by the party seeking to bar disclosure, it is clear that the evidence presented and the expertise underlying it must be “balanced against the primary purpose of the Act, namely, the provision of a public right of access to government records” (Telezone, above, at para 36). 129 The injury-based determination that must be undertaken by the Court is indeed one that balances the Act’s aims and objectives, more precisely, that the Act’s exceptions be interpreted restrictively. Again, Justice Roth- stein provided ample guidance in the Canada (Information Commissioner) v. Canada (Prime Minister) case on what factors can guide the Court’s analysis in analyzing whether there are reasonable ex- pectations grounds for probable harm. Cited as a nonexhaustive list, these are noted as follows: 1. The exceptions to access require a reasonable expectation of probable harm. Bronskill v. Canada (Minister of Heritage) Simon No¨el J. 149

2. The considered opinion of the Information Commissioner should not be ignored. 3. Use of the information is to be assumed in assessing whether its disclosure would give rise to a reasonable expectation of probable harm. 4. It is relevant to consider if the information sought to be kept confidential is available from sources otherwise available by the public or whether it could be obtained by observation or independent study by a member of the public acting on his or her own. 5. Press coverage of a confidential record is relevant to the issue of expectation of probable harm from its disclosure. 6. Evidence of the period of time between the date of the confidential record and its disclosure is relevant. 7. Evidence that relates to consequences that could ensue from disclosure that describe the consequences in a general way falls short of meeting the burden of entitlement to an exemption from disclosure. 8. Each distinct record must be considered on its own and in the context of all the documents requested for release, as the total contents of the release are bound to have considerable bearing on the reasonable consequences of its disclosure. 9. Section 25 of the Act provides for the severance of material in a record that can be disclosed from that which is protected from disclosure under an exemption provision. The severance must be reasonable. To disclose a few lines out of context would be worthless. 10. Exemptions from disclosure should be justified by affidavit evidence explaining clearly the rationale exempting each record. (Canada (Information Commissioner) v Canada (Prime Minister), above, at para 34) [Citations omitted] 130 It should also be noted that as the fact that a document is not directly linked to an ATI request does not necessarily constitute grounds for refusal of disclosure, it is not for the decisionmaker to exclude what he or she determines as not relevant to the access request, so long as these documents constitute the record sought (X. v. Canada (Minister of National Defence) (1991), [1992] 1 F.C. 77 (Fed. T.D.), at para 44 (Denault J.)). 150 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

131 In addition, the Act’s exemptions are not to be validated by the Court when used to prevent embarrassments or to hide illegal acts (Carey v. Ontario, [1986] 2 S.C.R. 637 (S.C.C.); Canada (Attorney General) v. Commission of Inquiry into the Actions of Canadian Officials in relation to Maher Arar, 2007 FC 766 (F.C.); see also subsection 47(2) of the Act). 132 The Court must also assess whether the severance of the records sought, if any, was reasonably done (s 25 of the Act). Under the broad powers conferred by the Court under section 50, it is conceivable that the Court may undertake this exercise in severability in ordering that the documents be disclosed in part. However, the records themselves in the case at bar span over 1,000 pages, and surely the Court’s expertise does not span to assessing the exact severance to be undertaken and all the interests at play. An exercise in severance of the records will not be undertaken by the Court in the context of the present application. 133 The assessment of the reasonable expectation of probable harm is one that must be consistent. It would be highly illogical, and run counter to the Act, if the head of a government institution would apply inconsistent standards between different documents, more so if the inconsistencies would be in the very same ATI request. Where the decision-maker must make a determination of the injury caused by disclosure, inconsistent redactions and assessments of the injury resulting from disclosure may constitute grounds for additional disclosure ordered by the Court. 134 This aspect of the case is not the same as in Blank v. Canada (Minister of Justice), 2007 FCA 147 (F.C.A.), where the consistency of the severance undertaken was dealt with in respect to a classbased exemption, solicitor-client privilege under section 23 of the Act. The Fed- eral Court of Appeal in 2007 FCA 147 (F.C.A.), relied upon Babcock v. Canada (Attorney General), 2002 SCC 57 (S.C.C.) to support its findings. In Babcock, the Supreme Court ruled that the doctrine of the Crown’s waiver of privilege could not apply under section 39 of the Can- ada Evidence Act. However, section 39 deals with a class-based exemption, that of Cabinet confidence. Hence, in this case, it is the assessment of injury caused by disclosure that is relevant. Whether confidentiality was waived or not is not relevant as it is in cases where sections 20 or 23 of the Act are applied. Rather, when injury was deemed absent or not sufficient as to allow the disclosure of documents, the Court must also consider whether this evaluation is consistent throughout the litigated documentation. Bronskill v. Canada (Minister of Heritage) Simon No¨el J. 151

135 In the case at bar, it was made abundantly clear by the Court to counsel for the Respondent in the ex parte, in camera hearing that the severance and disclosure made was inconsistent throughout the documentation. Counsel for the Respondent acknowledged as much, and recognized it to be one of the grounds for which the second review was undertaken. However, upon review of the second release of information, the Court finds that the documentation is still inconsistently redacted, as will be detailed below. 136 For the purpose of clarity, and before the second review of the documentation will be further discussed, it is appropriate for the Court to state that the information that was first withheld from the Applicant was clearly done in a manner than runs counter to the Act’s principles, as well as the mandate of LAC. Furthermore, it can be said that LAC failed to exercise its residual discretion, once the documents had been seen to be covered by the section 15 exemption. The finding that the release of several documents would imply “reasonable expectation of probable harm” was flawed for a considerable portion of the documentation, as the subsequent disclosure resulting from this proceeding has shown. There was simply no exercise of the residual discretion for release, which is necessary for the realization of the Act’s purpose, as well as LAC’s mandate to preserve and diffuse Canada’s history. 137 That said, this Court has to analyze the records as they now stand. The Court will analyze the categories of documents still withheld, as it follows counsel for the Respondent’s argumentation and the logic applied by the Respondent in refusing disclosure. When applicable, the Court will add other categories of information still withheld. The Court reiterates that this is the first stage of the application: the assessment of reasonable expectation of probable harm under section 15 of the Act. 138 Again, the Court emphasizes that what is at issue does not constitute the full record currently held by the government on T.C. Douglas. Only the portion which was deemed “responsive” by LAC is dealt with, as the ATI request was addressed to LAC. 139 Furthermore, rather than deal with documents themselves within these reasons, an Annex is provided where a chart identifies improperly withheld documents, and highlights reasons why this is the case. The An- nex also details how the chart is to be read and considered by the decision-maker. 152 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

(2) Current Operational Interest 140 Counsel for the Respondent indicated the following during the course of the public hearing of February 23rd, 2011: “Records that could identify subjects of investigation that are still of concern to the service were not released” (Transcript of the Public Hearing of February 23rd, 2011, p 135). However, it should be said that the evidence provided did not indicate all the likely current operational interests found in the file. The Court undertook limited independent research to verify some elements, as a cautious approach is necessary in national security matters. More should be done on the Respondent’s part so that the Court is not placed in such a position. 141 This kind of information is reasonably withheld from disclosure. The injury-test set out in section 15 is clearly met in regards to this information and LAC’s decision in this respect is reasonable, unless redactions can be made or discretion properly exercised so that some historical information is released. The Annex highlights documents where this could be done.

(3) Human Sources 142 The disclosure of information pertaining to human sources is directly anticipated as an exemption within the Act, at paragraph 15(1)(f). 143 The rationale document provided by CSIS to LAC states that “the most important tool of any security agency is a human source”. The Re- spondent’s position is such that the protection of human sources of CSIS and its predecessor must be absolute and that “there is no basis in law or in fact to support a temporal limitation on that privilege once it is recognized by the Court” (Transcript of the Public Hearing of February 23, 2011, p 129). The anonymity of human sources, past and present, is said to be paramount to the current work of sources, as well as for the recruit- ment of future sources. 144 This very Court has recognized the human source privilege in Harkat, Re, 2009 FC 204 (F.C.). The question of whether CSIS informers benefit from a class-based privilege once the conditions for finding a common- law privilege are met has been certified for consideration by the Federal Court of Appeal. Evidently, the considerations in the Harkat case were different than the present, but the applicable principles should remain the same. The general approach in Harkat, Re was followed in a case arising from section 38.04 of the Canada Evidence Act heard by my colleague Justice Mosley in Canada (Attorney General) v. Almalki, 2010 FC 1106 Bronskill v. Canada (Minister of Heritage) Simon No¨el J. 153

(F.C.), (varied by 2011 FCA 199 (F.C.A.)). Justice Mosley nuanced the approach and indicated that there were some limitations as to whether the privilege applies to only some informants for who confidentiality was assured. Evidently, further appellate guidance on this matter will prove to be timely and useful. 145 Human sources in intelligence matters should benefit from similar protection as police informers benefit under the current state of the law. 146 The privilege of anonymity has been recognized to police informers by the Supreme Court, save for the “innocent-at-stake” exception (see generally, Bisaillon c. Keable, [1983] 2 S.C.R. 60 (S.C.C.); R. v. Leipert, [1997] 1 S.C.R. 281 (S.C.C.); Application to proceed in camera, Re, 2007 SCC 43 (S.C.C.)). 147 The privilege of journalistic sources is less categorical, and applies within the evidentiary framework suggested by Wigmore on Evidence, as applied by the Supreme Court in R. v. National Post, 2010 SCC 16 (S.C.C.) and Globe & Mail c. Canada (Procureur g´en´eral), 2010 SCC 41 (S.C.C.). The four factors, cited as a “general framework”, for a Court to consider when addressing if the identity of a journalist source should be revealed are: (1) the relationship must originate in a confidence that the source’s identity will not be disclosed; (2) anonymity must be essential to the relationship in which the communication arises; (3) the relationship must be one that should be sedulously fos- tered in the public interest; and (4) the public interest served by protecting the identity of the in- formant must outweigh the public interest in getting at the truth. (R v National Post, 2010 SCC 16, at para 53) 148 It should also be noted that the Wigmore framework had also been applied by this Court in Charkaoui, Re, 2008 FC 61 (F.C.). 149 The records that are the object of the application were collected by the RCMP’s Intelligence Service Division. The RCMP is defined as a “police force” by section 3 of the Royal Canadian Mounted Police Act, RSC 1985, c R-10. It could be argued that human sources under the RCMP’s Intelligence Division were police-informers. Evidently, this argument would be in direct line with the controversies leading up to the Royal Commission of Inquiry into Certain Activities of the RCMP, 154 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

known as the MacDonald Commission. In sum, the convoluted nature of the RCMP’s activities between police work and intelligence before the creation of CSIS in 1984 is such that former RCMP informers in intelligence matters cannot be readily qualified as police-informants. 150 The Court is of a mind that the identity of human sources must be protected and that it is well established that they are the essential to CSIS’ operations. A form of triad should be expressly recognized with the three main informer-type privileges: police, intelligence, and to some extent journalistic sources. Again, the Court indicates that the power to provide summaries in other national security matters has proven to be a way to provide information while protecting the identity of sources. The power to reasonably sever records under section 25 can also be relevant to the protection of human sources. 151 Having said that, the Court notes that the public records as they now stand release considerable information pertaining to sources within RCMP investigations on T.C. Douglas. Evidently, for many documents, no source is readily identifiable within the records. Sometimes, the Re- spondent has released that “a reliable source” or “a source” has provided information. However, this has not been consistently done by the Re- spondent in the record as it was after the second round of disclosure. Again, consistency in the withholding of documents and information is a clear concern of the Court. 152 Proper perspective must be given to the protection of human sources within an ATI request. While the protection of sources is directly contemplated by paragraph 15(1)(f) of the Act, the exemption is not a class- based exemption. Information should not be withheld because it emanates from a human source. The head of the government institution, in this case LAC, in consultation with CSIS, must assess whether there is reasonable expectation of probable harm in disclosing the information. In the present records, LAC did release information pertaining to human sources, but did not do so in a consistent manner. In any event, no personal identifiers of human sources have been disclosed, such as there is no reasonable expectation of probable harm. A human source reasonably expects that the information provided will be used. It can be said that the “use” of this information also includes ATI requests pertaining to past investigations, so long as the source is not identifiable and that there is no reasonable expectation of probable harm in disclosure. Clearly, a class-based approach in regards to human sources had been followed in Bronskill v. Canada (Minister of Heritage) Simon No¨el J. 155

the original disclosure of documents, and to some extent, in the second review as well. 153 In regards to the second review of the Douglas dossier, the Annex provided with these reasons highlight documents where reasonable severance of the records can be done, so as to disclose the information within them, while protecting the identity of human sources. 154 As seen from the “Library and Archives (LAC) Consultations” document, a blanket policy was followed in regards to monitored meetings, which adopted an approach whereby the number of people present in a meeting and its date were a key factor to consider. However, it seems this very policy was not consistently followed for the second review of the documentation and as such, it cannot be seen as indicative of prejudice of disclosure of information in regards to human sources. 155 Counsel for the Respondent hinted at internal policies within CSIS that the protection of confidential sources was not timeless, despite what was argued in the pleadings and factums: “There is a timeframe with confidential sources” (p 198 of the Transcript of the Public Hearing of February 23, 2011). Perhaps this policy should be made public in order to clarify the underlying rationales to exemptions within the Act, and a public debate could ensue on the duration of the protection of human sources, something other democracies and our allies have long made public.

(4) Technical Sources 156 LAC’s first response to the applicant’s ATI request was such that a class-based approach was adopted in regards to technical sources: CSIS and LAC reasoned that all identifiers of technical sources, in current use or not, were to be protected. Thus, the injury resulting from disclosure was presumed to be applicable to all the documents where technical sources were the source of the reporting. 157 During the course of the proceeding, and through the second review of the documentation, technical sources used for the constitution of the Douglas dossier were alluded to. The approach recommended by CSIS to LAC was to release “most of the records obtained through technical sources, intercepts and surveillance where the subject of interest was transitory in nature”. This approach implies that it not so much the technical sources in and of themselves that are relevant to injury, but whether they relate to past interests or not. 156 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

158 As the decision-maker’s approach indicates, the protection of technical sources is not absolute, as it is the information obtained through technical sources that is relevant under the Act. Again, the issuance of summaries could be beneficial to reveal information relevant under the ATI request, while protecting current technical sources. The Annex will not deal with information emanating from technical sources, as the Respon- dent’s approach is reasonable in this respect.

(5) Targets of “transitory nature” 159 The first response to the ATI request was grossly erroneous in respect to past targets of the RCMP’s Intelligence Branch. There was no reasonable expectation of probable harm in disclosing most targets of a “transitory nature”. This was made clear during the ex parte, in camera hearing. In support of this contention, it was emphasized that several of these targets were already publicly known. For example, it had been confirmed through the work of the MacDonald Commission that the NDP’s Waffle Group, the Communist Party of Canada and similar groups were of interest to the RCMP. The use of the MacDonald Commission reports is highly informative in the present matter. It is this Commission which gave rise to the creation of CSIS and inspired its mandate and its separa- tion from the RCMP (see, for example, Royal Commission of Inquiry into Certain Activities of the RCMP, vol. 1, p 422, for discussions on the role of a civilian security intelligence agency). The work of the MacDon- ald Commission was referred to ex parte, as well as during the public hearing. 160 In fact, the MacDonald Commission clarified the legitimate activities that an intelligence service may enterprise with groups that represent arguably “extreme” views, yet participate in the democratic process. The Commission clearly articulated the nuance between expressing views in a democratic process that may be considered extreme and what constitutes subversive activities. The Commission stated in all clarity the following: The importance to democracy of drawing the line correctly between legitimate dissent and subversion calls for sophisticated judgment and political understanding on the part of those who carry out security operations. (Royal Commission of Inquiry into Certain Activities of the RCMP, vol. 1, p.409) Strong dissent from the status quo is not a category of activity about which security intelligence should be collected; nor is the planning Bronskill v. Canada (Minister of Heritage) Simon No¨el J. 157

and carrying out of political demonstrations and processions, which, although may involve violations of local by-laws and confrontations with law enforcement officials, are not aimed at destroying fundamental elements of Canadian democracy. (Royal Commission of In- quiry into Certain Activities of the RCMP, vol. 1, p.417) All should be free to participate in discussions over the future of Canada and none should be the target of investigation by the security intelligence agency so long as they adhere to legal and democratic means of pursuing their aspirations. (Royal Commission of Inquiry into Certain Activities of the RCMP, vol. 1, p.466) 161 Clearly, limits were placed on the RCMP’s monitoring of political parties in Canada. And as the Commission spurred the creation of CSIS, these limits can be said to be of considerable interest to CSIS as well. As such, no injury can be found in disclosing past activities that had already been made public and critiqued severely. 162 Considerable portions of the MacDonald Commission’s report are relevant to the period at issue within the documentation. More precisely, and by way of example, the Commission clearly took issue with the wide scope of the investigation of the Waffle Group, a faction of the NDP in its early days as a political party: A non-violent political group’s “extreme left posture” should provide no rationale whatsoever for a security intelligence agency to use intrusive intelligence-gathering techniques to collect information about the group’s activities and intentions. Moreover, it is even more objec- tionable when such a rationale is used to justify the collection of information about an element of a legitimate political party which is in opposition to the party in power. (Royal Commission of Inquiry into Certain Activities of the RCMP, vol. 1, p.482) 163 An entire section of the Commission’s report deals with the monitoring of elected members of Parliament and election candidates. Indeed, this review of the RCMP’s activities provides an informative analysis of the categories of information collected and whether the information was necessary (Royal Commission of Inquiry into Certain Activities of the RCMP, vol.1, p 468, “(b) Members of Parliament, election candidates and surveillance of the Waffle”). One of the Commission’s conclusions in respect to certain aspects of monitoring political activities reads as follows: Indeed the cases show that members of the Security Service have not understood the difference between legitimate political dissent, which is essential to our democratic system, and such political advocacy or 158 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

action as would constitute a threat to the security of Canada. (Royal Commission of Inquiry into Certain Activities of the RCMP, vol.1, p.474) 164 This quote should not be taken wholly out of context, as the Commis- sion’s analysis is more nuanced in regards to the monitoring of political activities. However, it can be said that relevant guidance to the RCMP’s activities has been provided by the MacDonald Commission. The Doug- las dossier is illustrative of many of the conclusions drawn in respect to the overzealousness of the RCMP’s Intelligence Division. Thus, the disclosure of targets of a transitory nature, especially when they relate to political parties and advocacy groups, has already been done in several instances. The reasons and rationale underlying the monitoring of these activities, and their inherent difficulties, have been discussed in public fora. Basically, a Royal Commission denounced some of the RCMP’s activities. Today, under the Act, access to the first-hand source of information about the scope and purpose of these activities is refused. This is unacceptable. 165 The crux of the MacDonald Commission’s work in regards to the RCMP’s monitoring of political activities is articulated around the drawn-out definition of “subversive activity”, as it was then defined by the RCMP. Commenting on the far-reaching nature of the definition, the Commission stated that: We find such a wide definition of subversion dangerous and unacceptable because it does not clearly distinguish radical dissent from genuine threats to Canada’s security. (Royal Commission of Inquiry into Certain Activities of the RCMP, vol.1, p.480) 166 It is also quite interesting to note that the MacDonald Commission reviewed the Douglas dossier in the course of its mandate, as evidenced by p1030 of the documentation. 167 It should be noted that section 15 of the Act contemplates whether the disclosure of information could hamper the monitoring of “hostile or subversive activities”. As stated, the evidence on the record does not establish which aspect of section 15 is contemplated by LAC and CSIS in refusing disclosure. However, the MacDonald Commission expressed concerns over the broad definition of subversion. In the context of the present application, the Court can safely state that it shares similar concerns in regards to the use of an overbroad definition of “prevention and detection of subversive or hostile activities” in the context of section 15 of the Act. Bronskill v. Canada (Minister of Heritage) Simon No¨el J. 159

168 Thus, there is no reasonable ground for injury preventing the release of these documents. History and Canadian democracy require that historical facts, like the monitoring of legitimate political activities, be known. Refusing disclosure under the Act of these historical events is unacceptable in most circumstances, more so when this is already made public through a Royal Commission initiated for the very purpose of investigating these activities. 169 Furthermore, the historical context in which the RCMP constituted the Douglas dossier is different from today’s. The litigated files span from the end of the 1930s to the 1980s, a tumultuous historical period to say the least. The fears of socialism leading up to the Second World War, and the Cold War context that followed it do not constitute the threats with which Canada is confronted today. Surely, extremism, whatever the dogma it is attached to, is of worry when violent means are advocated. But there is no “reasonable cause for probable harm” when the perceived threats of the time have eroded and the “transitory targets” are made public. Furthermore, the Court finds that the disclosure of these targets is in fact positive: Canadians learn from this disclosure and it informs the historical context in which our country’s intelligence community operated in and in which decisions were taken. 170 Thus, the approach followed in terms of targets of a “transitory nature” followed during the course of the second review is reasonable in most respect. Again, the Court laments the conduct of the first review of the documentation, especially in regards to targets already made public. The Court also stresses the fact that the approach followed must be consistent. As such, the Annex appended to these reasons shall highlight documents were documents pertaining to “targets of a transitory nature” should be disclosed. 171 Also, more is expected of the Respondent in defining what constitutes “targets of a transitory nature”. As noted, this approach was only brought forth in the days prior to the public hearing of February 23, 2011, and was not clearly defined for the Court. From the documentation, it also appears as an approach which was inconsistently followed.

(6) Identity of RCMP Officers 172 After the second review of the documentation, the exemption claimed by LAC over the records is that of section 15(1), not section 19(1). In fact, under section 19(1), the identity of RCMP officers would be disclosed, as the fact that people were employed by the RCMP does not 160 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

constitute “personal information” under the Act, as per the definition provided in section 2 of the Privacy Act: But, for the purposes of sections 7, 8 and 26 and section 19 of the Access to Information Act, does not include (j) information about an individual who is or was an officer or employee of a government institution that relates to the position or functions of the individual including, (i) the fact that the individual is or was an officer or employee of the government institution, (ii) the title, business address and telephone number of the individual, (iii) the classification, salary range and responsibilities of the position held by the individual, (iv) the name of the individual on a document prepared by the individual in the course of employment, and (v) the personal opinions or views of the individual given in the course of employment (emphasis added) 173 The same could not be said if the documents dealt with the information dealt with covert CSIS operatives, due to the applicability of section 18 of the CSIS Act: Offence to disclose identity 18. (1) Subject to subsection (2), no person shall disclose any information that the person obtained or to which the person had access in the course of the performance by that person of duties and functions under this Act or the participation by that person in the administration or enforcement of this Act and from which the identity of (a) any other person who is or was a confidential source of information or assistance to the Service, or (b) any person who is or was an employee engaged in covert operational activities of the Service can be inferred. Exceptions (2) A person may disclose information referred to in subsection (1) for the purposes of the performance of duties and functions under this Act or any other Act of Parliament or the administration or enforcement of this Act or as required by any other law or in the circumstances described in any of paragraphs 19(2)(a) to (d). Bronskill v. Canada (Minister of Heritage) Simon No¨el J. 161

Offence (3) Every one who contravenes subsection (1) (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or (b) is guilty of an offence punishable on summary conviction. 1984, c. 21, s. 18. Infraction 18. (1) Sous réserve du paragraphe (2), nul ne peut communiquer des informations qu’il a acquises ou auxquelles il avait accès dans l’exercice des fonctions qui lui sont conférées en vertu de la présente loi ou lors de sa participation a` l’exécution ou au contrôle d’application de cette loi et qui permettraient de découvrir l’identité: a) d’une autre personne qui fournit ou a fourni au Service des informations ou une aide a` titre confidentiel; b) d’une personne qui est ou etait´ un employé occupé a` des ac- tivités opérationnelles cachées du Service. Exceptions (2) La communication visée au paragraphe (1) peut se faire dans l’exercice de fonctions conférées en vertu de la présente loi ou de toute autre loi fédérale ou pour l’exécution ou le contrôle d’application de la présente loi, si une autre règle de droit l’exige ou dans les circonstances visées aux alinéas 19(2)a) a` d). Infraction (3) Quiconque contrevient au paragraphe (1) est coupable: a) soit d’un acte criminel et passible d’un emprisonnement max- imal de cinq ans; b) soit d’une infraction punissable par procédure sommaire. 1984, ch. 21, art. 18. 174 As for the identity of RCMP agents, LAC relied upon an umbrella rationale whereby the assessment made was one that involved the date of the report and the rank of the officer, so as to ensure that disclosure of reports from officers that could still be alive would not be released. This approach fetters the injury-assessment required by section 15. In fact, the redactions made in regards to the names of RCMP officers are completely inconsistent in regards to a section 15(1) injury assessment. 175 It could also be said that the burden of proof for showing injury from disclosure is higher when other sections of the Act or the Privacy Act require that such information be disclosed. This is so because a consis- 162 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

tent interpretation of the Act is that reliance on one exemption bars the government from relying on another during the application before this Court (see, inter alia, Saint John Shipbuilding Ltd. v. Canada (Minister of Supply & Services) (1990), 67 D.L.R. (4th) 315 (Fed. C.A.), at para 9, citing approvingly Saint John Shipbuilding Ltd. (FCTD), above). 176 Furthermore, it should be noted that the names of RCMP Officers do not fall under the scope of section 18 of the CSIS Act, whereby it is not permitted to disclose the name of CSIS employees engaged in covert operations, as the officers were not employees of CSIS. 177 The names of all the RCMP officers must be disclosed save for those involved in covert operations as infiltrators or sources. This is entirely consistent with the findings of the Supreme Court in Canada (Information Commissioner) v. Royal Canadian Mounted Police Com- missioner, 2003 SCC 8 (S.C.C.).

(7) “Incidental Reporting” 178 The Respondent’s approach, even within the second review of the documentation, was that documents where T.C. Douglas was only mentioned in passing were not disclosed. The reason behind this is that it would be “unfair” to Mr. Douglas should the information be taken out of context, and for this reason, entire documents were withheld. 179 This rationale is also entirely inconsistent with the Act. Firstly, it can be said that the assessment of T.C. Douglas’ person, affiliations and ca- reer is one for History and Canadians to judge. Surely, LAC and CSIS cannot choose to pre-empt this judgment and substituting it with one of their own. Citizens and professionals will study the records, discuss them and ultimately, conflicting opinions may arise. But this whole exercise is positive in and of itself and should not be precluded by LAC. In fact, LAC’s mandate not only enables it, but makes it responsible, for the diffusion of such historical documents. As discussed above, sole custodian- ship by LAC of government records is simply not enough: more should be done to facilitate access and be more responsive to the legislative mandate conferred by the Library and Archives of Canada Act. 180 Refusing disclosure of these documents is based on the premise that it does not relate to T.C. Douglas per se, and thus does not constitute the basis of the ATI request. As such, the mentions of Douglas’ person are said to be “incidental reporting”. Bronskill v. Canada (Minister of Heritage) Simon No¨el J. 163

181 Justice Denault has stated clearly in X. v. Canada (Minister of National Defence) (1991), [1992] 1 F.C. 77 (Fed. T.D.), at para 44, that “the fact that information is not directly related to an access request is not a basis for exemption under the Act”. As such, separating portions of a dossier under the premise that they are not related is an error in law. LAC, and all government institutions, must consider the documents sought under the Act as they are. They must not attempt to portion them off into categories based on relevance. Institutions are mandated under the Act to evaluate both whether an exemption exists, and if it is class- based or injury-based exemption. They must then consider their discretion to release the documents, despite the exemption. Nowhere in this analysis is “relevance” a factor. 182 The Respondent has argued that the purpose of the Act is “not met or advanced by providing access to isolated words or phrases that have no meaning in isolation or that do not provide “information” to the reques- tor” (citing Murchison v. Export Development Canada, 2009 FC 77 (F.C.), at paras 63-64). The Murchison case indeed arose in the context of the Privacy Act, but it remains informative. 183 However, the Murchison case is very different from the present, not because it arises in the context of the Privacy Act, but because the information withheld in that context did not relate at all to the request for information that was made. Mr. Murchison sought information as to why he was refused employment with Export Development Canada, and not all the information in or around the relevant portions of the government records addressed this request. In this case, the whole RCMP intelligence file on T.C. Douglas was sought. Provided that human source concerns and targeting issues are reasonably protected, the file is to be released as is, and not portioned off into what is deemed relevant (see also paras 153 and 158 of the present reasons). 184 It is also paramount to realize that the constitution of an intelligence file is in and of itself informative for intelligence purposes. What constitutes a file is indicative of many important considerations, such as a subject’s influence, associations or network. If the Act was construed to accept relevance as a factor to withhold information, meaningful access to files such as T.C. Douglas’ would be unduly portioned off. The nature and content of a file provides valuable information, and secluding documents which would only “directly” relate to the ATI request would hin- der this process. 164 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

185 Accepting relevance as a consideration could also contribute to a situation where the number of access requests would dramatically rise. For example, if T.C. Douglas was mentioned in passing at a Communist Party of Canada meeting, and this is frequently the case in the records, it would be illogical for LAC to block access to the records on the basis that the ATI request did not ask for anything pertaining to the Commu- nist Party of Canada. In that case, an applicant would be frustrated in his or her requests for information and would have to multiply access requests in order to get the full picture. This cannot be the intent and purpose of the Act. 186 Even if relevance was accepted, and again, the Court is strongly opposed to it, it can be said that all records pertaining to T.C. Douglas in government’s possession are relevant. Mentioning Douglas’ person, even in passing, is relevant to History. It shows who were interested in seeking his counsel, his help and critiqued his actions. In sum, “incidental reporting” constitutes relevant information on a person and his or her place in History. 187 Under the applicable standard of review, there are no reasonable grounds for probable injury in this disclosure. The reasoning applicable to “transitory targets” wholly applies in this case as well, and thus, no injury can be found in disclosing the RCMP’s interest and monitoring of targets, subject to the conclusion of this Court on human sources and the like. 188 As section 19 of the Act is not relied upon, there is also no reasonable expectation of probable harm under section 15 resulting from the disclosure of opinions about T.C. Douglas emitted “incidentally” in records found in the Douglas dossier. The Respondent has clearly stated that it is not relying upon section 19 of the Act, and bears the consequence of this decision. It is also surprising, if not worrisome, that the Information Commissioner found that LAC’s initial withholding of information could solely be justified under section 15 of the Act. Clearly, the scope of section 15 of the Act was exceeded in both reviews of the documentation, as well as in the Information Commissioner’s review of the documents. 189 Thus, for documents were incidental reporting was the premise of the refusal of disclosure, the Court orders that these documents be made public. The Annex provided will identify examples where incidental reporting is a flawed premise for the withholding of information. Bronskill v. Canada (Minister of Heritage) Simon No¨el J. 165

(8) RCMP’s Assessment of T.C. Douglas 190 Perhaps the documents pertaining to the RCMP’s assessments of T.C. Douglas form the most valuable portions of the Douglas dossier. How- ever, this is not relevant to the assessment of injury resulting from disclosure under section 15. Again, what is important and what the Court must be satisfied of is that there are “reasonable grounds for probable injury” if the information is disclosed. 191 The opinions of RCMP officers in regards to T.C. Douglas constitute “opinions made during the course of employment”. These are stated by subparagraph 2(j)(v) of the Privacy Act as not being “personal information”, which in turn, exempts it from the ambit of section 19 of the Act. 192 In the case of “investigator’s comments” or any like documents found within the records, the Court orders that the documents be made public. There are no “reasonable grounds for injury” under section 15 resulting from disclosure. There may be cases for exceptional redactions to be made, considering some of the interests described in these reasons. 193 By way of example, during the course of the application and after the second review, a news article was referred to during the public hearing whereby a retired RCMP Officer was contacted for his comments in regards to T.C. Douglas. Surely, this cannot be the injury that LAC and CSIS refer to in regards to the opinions of RCMP officers. Again, subject to the findings in regards to human sources and technical intercepts, the documents pertaining to the RCMP’s assessment of T.C. Douglas are to be disclosed. Examples of these documents are highlighted in the chart found in the Annex to these reasons.

C. Was the exercise of discretion reasonable in the circumstance? 194 As discussed above, it is for the Respondent to prove that not only was there an exercise of discretion, but that it was reasonably done. As was the case in Attaran v. Canada (Minister of Foreign Affairs) before the Federal Court of Appeal, “the question is whether the Court can infer from the subsequent release or non-release of information that the decision-maker considered [its] discretion to release information, notwithstanding that the information otherwise fell within subsection 15(1) of the Act” (para 31). 195 As was seen by the history of the proceedings, concerns were raised during the ex parte hearing in regards to the proper exercise of discretion and whether the required analysis under section 15 was meaningfully ad- 166 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

dressed by LAC. Pertaining to the first review of the documentation, these concerns were serious and there was nothing to suggest that discretion was considered in any respect. For example, some facts lead to the conclusion that LAC forwent the section 15 analysis due to deference to CSIS during the consultations. Further, the short amount of time taken by the LAC analyst (less than a week) is indicative that no reasonable assessment of discretion was made. 196 In addition, the evidence on the record, both public and confidential, does not establish that the Office of the Information Commissioner duly acquitted itself of its duties, namely in regards to discretion. Justice Kelen considered the record found in the Attaran v. Canada (Minister of Foreign Affairs), 2009 FC 339 (F.C.), (varied on other grounds in 2011 FCA 182 (F.C.A.)) and commented it as follows: The confidential information on the record shows that the Informa- tion Commissioner performed a thorough investigation, asked a number of probing questions, and secured a number of further disclosures from the respondent. At that point, the Information Commissioner was satisfied that the documents disclosed with redactions, which are now before the Court, were in compliance with the ATIA. 197 No such inquiry is supported by the evidentiary record. Even more, and as stated above, the Office of the Information Commissioner did not even undertake the analysis of section 19 of the Act, deeming that all the records were properly withheld during the course of the first review of the documentation. In keeping with the principle of independent review in the Act, it is clear that the Commissioner has a determinative role to play. The Commissioner must not be dazzled by the claims made based on national security as a thorough and independent review must be undertaken with a critical mind, in keeping with the legislative objectives at play. 198 As for the second review of the documentation undertaken as a result of the ex parte hearing, it is paramount to address the reasons submitted by counsel for the Respondent indicating why his client undertook a second review of the documentation. As described above, the reasons for the second review were: more than five years had passed between the original request and the hearing of the application; the Respondent had acknowledged to the Court that there were inconsistencies in the withholding of information; and a number of comments during the in camera hearings were such that it “made it appropriate to conduct a further review”. It does not appear that CSIS underwent an analysis as to whether Bronskill v. Canada (Minister of Heritage) Simon No¨el J. 167

there was additional discretion to disclose the documents, despite the applicability of the exemption during the course of the first review of the documentation (Cross-Examination of Nicole Jalbert, March 2, 2010, p 57). 199 In supplementary submissions, it was stated by the Respondent that “the release of less redacted records was the result of the exercise of discretion by the respondent”. No further rationale as to what factors were considered in the alleged exercise of discretion were alluded to. No specific and detailed evidence was given in regards to this exercise of discretion, other than this general statement. The Court thus prefers the initial statement explaining the reasons for the second review, rather than the general statement that “discretion was exercised”. Basically, the second review of documentation was the result of much more than the exercise of discretion, and as such, there is no indicium of discretion being considered, despite the generic statement to the contrary. The circumstance of the case and its evolution before this Court is such that the exercise of discretion cannot be inferred. The documents considered in the Annex where “historical significance” is indicated are examples of where disclosure could be made if discretion was reasonably exercised. 200 The Federal Court of Appeal recently offered guidance as to the evidentiary requirements to demonstrate the exercise of discretion. In Attaran v. Canada (Minister of Foreign Affairs), at para 36, it was stated that: Conversely, just as the absence of express evidence about the exercise of discretion is not determinative, the existence of a statement in a record that a discretion was exercised will not necessarily be determinative. To find such a statement to be conclusive of the inquiry would be to elevate form over substance, and encourage the recital of boilerplate statements in the record of the decision-maker. In every case involving the discretionary aspect of section 15 of the Act, the reviewing court must examine the totality of the evidence to determine whether it is satisfied, on a balance of probabilities, that the decision-maker understood that there was a discretion to disclose and then exercised that discretion. This may well require the reviewing court to infer from the content of the record that the decision-maker recognized the discretion and then balanced the competing interests for and against disclosure, as discussed by the Court in Telezone at paragraph 116. 201 On a balance of probability, the Court is not satisfied that discretion was exercised. 168 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

202 Initially, the reliance by LAC on a general “umbrella rationale” given by CSIS is clearly indicative of an extensive reliance on CSIS’ assessment of the records (see para 33 of these reasons). It is unclear to what extent this general rationale prevailed during the course of the second review, or even if it was relied upon. In this respect, the reasons and rationale underlying the second review of the documentation are no clearer than the three reasons identified above. 203 This is the case because the Court does not accept that the second review is the sole result of the exercise of discretion. In fact, given the discrepancies and inconsistencies in the first review of documentation, it can be said that a portion of the documentation was released simply for the purposes of consistency in the injury assessment required by section 15. As discussed above, many documents did not meet the standard of proof where a “reasonable expectation of probable harm” was to be expected from disclosure. For example, targets disclosed under the Mac- Donald Commission, or threats which have disappeared from the intelligence landscape do not reasonably meet the injury-assessment of section 15, if the Act and the Library and Archives of Canada Act are to be given their full meaning and application. Hence, the release of these documents is not the result of the exercise of discretion, but is simply the fruit of the analysis which should have been undertaken in the first place. 204 This case is different from the Attaran case which was recently decided by the Federal Court of Appeal. Here, at least after the ex parte hearing where the Court drew the attention to its existence, it can be inferred that the decision-maker knew that the discretion existed. What cannot be inferred is that it was used reasonably, if at all. However, as was the case in Attaran, the statement provided in regards to the exercise of discretion is “generic in nature and by itself cannot satisfy the Court that the discretion conferred by subsection 15(1) of the Act was exercised” (para 29). 205 The factors guiding the exercise of discretion are discussed below and provide guidance as to the scope and nature of this discretion. The Court’s review of the second release of information has not satisfied the need for a meaningful and reasonable exercise of discretion, if there even was an exercise of discretion. As detailed in the Annex, there are many examples of documents where, despite a considerable historical interest, a factor which shall be discussed below, they are still withheld, despite the fact that severance could be undertaken to protect the information Bronskill v. Canada (Minister of Heritage) Simon No¨el J. 169

which requires it, such as the identity of human sources and current operational interests. 206 For example, the interests safeguarded by the protection of human sources meet the injury assessment of section 15, if the jurisprudential standards for the recognition of the privilege are met. Thus, disclosing the identity of human sources is strongly indicative of prejudice. Yet, it is not a blanket approach to protection if the privilege is claimed under section 15, where an injury assessment must be made: discretion remains applicable if overriding factors apply. 207 The disclosure of past operational interests is arguably different to this example of the identity of human sources, more so when they have been previously known in public fora. Most of these simply do not meet the injury assessment under section 15. If they did, there would be a strong presumption in favour of disclosure, as the interests identified in section 15 are not meaningfully prejudiced by disclosure. 208 The sum total of the discussion on discretion is perfectly coherent with section 15 of the Act as an injury-based and discretionary exemption. If Parliament would have recognized the interests protected by section 15 as always being prejudiced by disclosure, even with the passage of time, institutional changes and the like, it would have adopted a class- based and non-discretionary exemption. It is also coherent with the fact that exemptions under the Act must be limited and specific. 209 In the case at bar, considering the reasons given for the second review, and considering the “generic” statement that discretion was exercised, the Court does not find that discretion was exercised. The second review was undertaken to ensure consistency and compliance with the section 15 injury-assessment. If discretion was found to have been exercised, it was not done in a reasonable manner.

D. What factors are to be considered in the exercise of discretion? 210 The interests highlighted in the Library and Archives of Canada Act as well as those in the Act itself further compound the notion that the injury-assessment under section 15 and more importantly, the exercise of discretion for the disclosure of information, are to be taken seriously, with a presumption in favour of disclosure when exercising discretion. Surely, if the discretion is given, it must be meaningfully considered and done so in keeping with the objectives of the Act. 170 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

211 It can be said that even the initial qualification of records as exempt under section 15 of the Act is in and of itself an exercise of discretion. But given that the evidentiary requirements are such that “specific and detailed” evidence must be given, it can be said that the purpose of the Act is to limit the variance of this initial qualification. Secondly, it should also be restated that the prejudice alleged in disclosure must not be abstract or speculative, as recognize by the caselaw. If this exercise is meaningfully addressed by the decision-maker, then the residual discretion to disclose despite a “reasonable expectation of probable harm” can adequately be addressed to information which actually causes this reasonable expectation of probable harm, yet can be disclosed nonetheless. The conferral of discretion by the Act is the embodiment of a clear legislative intent that some information may well be disclosed despite an alleged injury. 212 No clear policy has been submitted in regards to the way LAC and CSIS assess historical records under the Act and how discretion is to be considered by decision-makers. As for the exercise of discretion, the new “policy” in regards to “targets of a transitory nature” is one that more adequately describes the process under the injury-assessment than the exercise of discretion. 213 As for the case at bar, the following factors are relevant in the assessment of whether discretion should be exercised. 214 Firstly, the principles and objectives of the Act and of the Library and Archives of Canada Act are in and of themselves factors to be considered by the decision-maker. Because these are the enabling statutes, surely they must be considered in their entirety in the course of the analysis of a section 15 exemption, which includes discretion. Thus, given the “limited and specific” nature of exemptions, and LAC’s mandate to facilitate access to Canada’s documentary heritage, it is clear that the decision- maker’s discretion is guided by these important considerations. The quasiPage: constitutional nature of the Act further compounds this, as do the important ramifications of the principles of access to information, which have been discussed at length in these reasons. 215 Secondly, it is important to note there is no direct consideration of the “public interest” in disclosure of information, as is the case in the Can- ada Evidence Act and under some provincial statutes, namely Ontario’s, which has been considered by the Supreme Court in Criminal Lawyers’ Assn. v. Ontario (Ministry of Public Safety & Security), above. However, given the principles of the Act and the qualification of LAC’s mandate of Bronskill v. Canada (Minister of Heritage) Simon No¨el J. 171

preserving and facilitating access to information as being contributory to our democratic life, there is an arguable implicit public interest in access to information requests. While not directly at play and not as a stand- alone argument to counter necessary exemptions, the public’s right to know is always at the heart of any ATI request, not least because of the Act’s quasi-constitutional nature. Further to this argument, the Act itself cannot be used to hide embarrassments or illegal acts (see para 131 of these reasons), thereby recognizing an inherent public interest in the application of the Act. 216 In its qualification of the residual discretion for disclosure of exempt information, the Supreme Court noted that the decision-maker “must go on to ask whether, having regard to all relevant interests, including the public interest in disclosure, disclosure should be made” (Criminal Lawyers’ Assn. v. Ontario (Ministry of Public Safety & Security), at para 66). 217 “All relevant interests” include the historical value of a document. LAC has, or should have, the necessary resources to assess this, in keeping with its important mandate within our democracy. Historians are the experts in this type of assessment, and surely, their help can be sum- moned to help any institution in its assessment of whether documents are historically relevant. In the case at bar, the very reason that LAC had been transferred the documents was because of their “historical significance”. To hold on to them, without any public access, goes against LAC’s pragmatic mandate described above. As such, the historical value of a document, more so when LAC is the record-holder, is a factor to be considered in the exercise of discretion. 218 In line with the historical value of a document is the fact that the exercise of discretion shall consider the passage of time between the in- ception of the document and the ATI request. While the passage of time is to be considered in the assessment of the injury resulting from disclosure (Canada (Information Commissioner) v. Canada (Prime Minister), above), it is also to be considered under the prism of whether discretion should be exercised. This has been alluded to as obiter by Chief Justice Lutfy in Kitson, above, at para 40, in qualifying the Court’s refusal to grant the ATI request: “It may be that the outcome would be different if the request were made some time after the CF are no longer engaged in Afghanistan. However, this decision is not one to be made today”. As such, if injury is present, yet at a lower end of the spectrum, the passage of time may be an important factor. This is the case because as the times 172 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

change, so do the bases of “reasonable expectation of probable harm”, save for the protection of human sources, current operational interests and similar issues. Justice Strayer also commented on the passage of time in the case of X v. Canada (Minister of National Defence), above, at para 8: I can only say that it appears to me quite unreasonable to conclude that the information in these documents which all bear dates of 1941 or 1942 and relate to a time when Canada was engaged in a world war, could reveal anything pertinent to the conduct of Canada’s international relations and its national defence over 50 years later in time of peace. 219 The passage of time is a factor, among others. It could well be that the passage of time in regards to the identity of human sources is different, as counsel has acknowledged publicly that there is a “timeframe for confidential sources”. And so, indeed, as it is argued by the Respondent, there is no “magic number” for the passage of time, and section 15 provides no direct guidance as to what passage of time is sufficient. This highlights the importance of a considered and thorough analysis of the reasonable expectation of probable harm under section, is as well as the residual discretion to disclose. 220 Furthermore, the Federal Court of Appeal has stated that the prior public disclosure of the information provides an “incentive for the exercise of discretion to release the information” in some cases (Attaran v. Canada (Minister of Foreign Affairs), at para 41). In the case at bar, the prior public disclosure often created a context where there was no reasonable expectation of probable harm in disclosure. Where there was, and it is worthy of repeating that the evidence is insufficient in many respect to establish this, the prior public disclosure of information is clearly a factor militating for disclosure, given the passage of time. 221 From the list of relevant factors discussed by Justice Rothstein, as he then was, in Canada (Information Commissioner) v. Canada (Prime Minister) for the injury analysis, the following can also be indicative that discretion should be exercised in favour of disclosure: • Press coverage of a confidential record is relevant to the issue of expectation of probable harm from its disclosure. How- ever, this factor cannot override the fact that access requests must be processed independently of who addresses them, as media has no priority within the ATI system (para 4(2.1) of the Act); Bronskill v. Canada (Minister of Heritage) Simon No¨el J. 173

• Each distinct record must be considered on its own and in the context of all the documents requested for release, as the total contents of the release are bound to have considerable bearing on the reasonable consequences of its disclosure; • Whether section 25 of the Act, providing the power to sever records, can be applied to protect the identity of human sources and other interests. It provides for the severance of material in a record that can be disclosed from that which is protected from disclosure under an exemption provision. The severance must be reasonable. In the Annex, examples of this are found within the “Source Concerns” column. 222 Recognizing the aforementioned factors as being essential to the exercise of LAC’s, or any institutions’, discretion under section 15 is necessary for the Act to be given its full scope and for its principles to be given their proper weight. Furthermore, as the decision-maker in this case was LAC, these considerations are furthered by LAC’s mandate as the custodian of Canada’s documentary heritage and its role to actively promote access to it. 223 In this case, there is no doubt that more should have been done before the application for judicial review on the Respondent’s part to ensure it was acquitting itself of its all-too-important legislative mandate. It is dis- appointing that the Act’s intent and LAC’s mandate have been not been given their true scope, notably as this file concerns a prominent and in- fluential Canadian, Mr. Thomas Clement Douglas, which was transferred to LAC because of its historical significance.

III. Conclusion 224 In sum, the Court is not satisfied that the information still withheld is retained in a manner consistent with section 15 of the Act. More should be done on the Respondent’s part to ensure consistency in disclosure, and many documents cannot be found to be consistently, and reasonably withheld under the grounds found in section 15. Furthermore, the exercise of discretion, or rather, the lack thereof, shall be considered with the factors described above. 225 The matter is to be sent for redetermination to LAC, with specific guidance to consider these reasons, their spirit as well as the examples found within the Annex. LAC is to conduct a new review within 90 days of this Judgment. Given the lack of evidence as to the exercise of discretion, and even for the assessment made under section 15, LAC would be 174 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

wise to detail and evidence the steps and approach taken for this third review of the documentation, including how it exercised its discretion. 226 Furthermore, given the breach of the duty of candour and the considerations described in regards to the completeness of the information provided by LAC on T.C. Douglas, and pursuant to section 50 of the Act, the Court orders that LAC justify, in writing, to the Applicant whether it has more information on T.C. Douglas in its control, beyond what has already been disclosed within the present application, or if it relies on section 10 of the Act or for any other reasons. LAC has 30 days to comply with this Order. 227 It is clear that this decision should in no way be interpreted as down- playing concerns about the identification of human sources or important national security concerns such as current operational interests. Rather, this case addresses how the passage of time can assuage national security concerns. Furthermore, this case highlights the importance of transferring information to the public domain for the benefit of present and future Canadians, as well as our collective knowledge and memory as a country. 228 The parties have come to an agreement as to the costs of this application.

Judgment THIS COURT’S JUDGMENT is that • The matter is to be sent for redetermination to LAC, with specific guidance to consider these reasons, their spirit as well as the examples found within the Annex. LAC is to conduct a new review within 90 days of this Judgment; • The Court orders that LAC justify, in writing, to the Applicant whether it has more information on T.C. Douglas in its control, beyond what has already been disclosed within the present application, or if it relies on section 10 of the Act, or if another response is applicable, within 30 days of this Judgment. Application granted. Bronskill v. Canada (Minister of Heritage) Simon No¨el J. 175

Annex IV. Annex The following chart aims to highlight documents the Court has identified as inappropriately withheld or inappropriately severed. The chart should not be interpreted as being an exhaustive account of the improperly severed or withheld documents. Rather, it is the fruit of a time-consuming and thorough review by the Court of the documents. It is meant as a guide for the decision-maker in the new review that will be undertaken. Suffice to say that the Court’s review of documents has proven to be an onerous task, especially with the lack of specific evidence justifying the withholding of information. The categories of information found in the chart are linked to the sections of the reasons where they are analyzed. The ratio of the reasons is to be complemented by the following examples. The “Source Concerns” column is linked to both human and technical sources. When it has been identified as a concern for a document, what is implied is that more information could be disclosed while protecting the appropriate concerns pertaining to sources. The “Incidental Reporting” column addresses documents where T.C. Douglas was only mentioned in passing. As addressed in the reasons, relevance of the information is not a criterion which is recognized by the Act. As such, these documents should be disclosed. Furthermore, LAC’s approach to “incidental reporting” has proven inconsistent throughout the documentation, and the documents identified within the following chart are examples of this. The “Targets of a “transitory nature”” column aims to identify where LAC’s approach undertaken under the second review of documentation was inconsistent. As the Court understands LAC’s “new” approach, information found in documents where “targets of a transitory nature” were considered was to be disclosed. However, this was not the case for several documents. Again, the lack of specific evidence implied that the Court inferred that many targets were of a “transitory nature”, save for those logically connected to important operational interests identified ex parte. The “RCMP’s analysis of T.C. Douglas” column identifies documents were the assessments and opinions of RCMP officers were inappropriately withheld. 176 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

The “Historical Component” column identifies documents where the decision-maker should have considered whether the residual discretion to disclose the information in light of the historical value of the information found within the documents could trump the alleged prejudice resulting from disclosure. Here, the Court singles out documents where clearly, the exercise of discretion could have reasonably resulted in disclosure of the information within these documents, while being consistent with human and technical source concerns. Again, the review of documentation undertaken by the Court was done with evidence that was not ideal. LAC’s general evidence and approach to the section 15 analysis was such that the review of documentation needed to be done, and clear guidance needs to be given. This is especially the case as a second review was undertaken after the ex parte, in camera hearing, which resulted in a “different” approach taken by LAC. However, this approach has also proven to be inconsistent and flawed. This was not the case for all documents. In fact, it could well be that different analysts went through the documentation and made the second round of severances. The Court has to be fair and signal that not all the documentation was improperly withheld. For example, the following documents were released despite concerns the fact that the documents include “incidental reporting” about T.C. Douglas: pp.969-972; pp.960-963; pp.1002-1003. Another example of the results of a consistent and serious analysis of section 15 concerns is the documents pertaining to “New Left Actions in Political Parties in Canada” (pp.905-917). This is the perfect example of what should have been the result for most of the documents found in the Douglas dossier. It should again be stressed that one of the Court’s core concerns is that of the consistency of the severances made. As an example, there are several different documents pertaining to the McGill Moratorium Committee’s protest of February 28, 1970. While there may well be source concerns, there are clear inconsistencies in the information that is still withheld. There are important inconsistencies in the redactions of identifiers such as “a reliable source” and the like, which are often released but inexpli- cably withheld in other circumstance. Again, the chart relates the Court’s concerns for many, but not all the documents, found in the file. It cannot serve as a replacement or shortcut Bronskill v. Canada (Minister of Heritage) Simon No¨el J. 177 to a new and thorough review of the documentation which will consider the reasons and concerns highlighted therein. Page Source Incidental Targets of RCMP’s Historical number of Concerns Reporting a analysis Component document “transitory of T.C. nature” Douglas p.10 XX p.20 (para X 6) pp.22-24 XX pp.35-37 X pp.53-54 XX X pp.57-58 X pp.61-64 XX p.68 X p.69 XX p.92 (para X 2) pp.100-103 XX pp.107-109 X p.110 XX p.120 XX p.126 XX p.132 X X X (see also pp.368,371) pp.148-153 XX pp.161-165 X p.169 XX p.180 X p.183 X pp.188-189 XX 178 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

Page Source Incidental Targets of RCMP’s Historical number of Concerns Reporting a analysis Component document “transitory of T.C. nature” Douglas pp.195-196 XX pp.217-218 X pp.236-237 XXX p.269 XXX p.272 X pp.273-274 XXX pp.282-283 XXX pp.284-287 X pp.291-292 X pp.297-299 X pp.305-307 XX pp.334-335 XX X pp.337-340 X pp.354-356 XX pp.359-360 XX pp.368-370 XX pp.371-373 XX pp.375-377 X pp.379-380 XX pp.384-387 XX pp.405-406 XX pp.411-412 XX pp.415-416 XX pp.421-424 XX X pp.426-429 XX pp.452-455 XX (para 9) Bronskill v. Canada (Minister of Heritage) Simon No¨el J. 179

Page Source Incidental Targets of RCMP’s Historical number of Concerns Reporting a analysis Component document “transitory of T.C. nature” Douglas p. 457 X p.476 X p.478 X pp.482-483 XX X pp.484-485 X pp.516-517 XX X pp.521-522 XX X pp.527-528 XX pp.529-531 X p.565 XX (para 11) pp.567-568 XX pp.575-576 XX p.586 X (para 8) pp.601-605 XX pp.639-640 XX pp.642-643 XX pp.655-657 XX pp.663-665 XX pp.697-698 XX pp.727-728 XX X pp.765-768 XX pp.774-775 X (paras 9, 10, 11, 13) pp.777-781 XXX pp.787-789 XX 180 IMMIGRATION LAW REPORTER 1 Imm. L.R. (4th)

Page Source Incidental Targets of RCMP’s Historical number of Concerns Reporting a analysis Component document “transitory of T.C. nature” Douglas pp.801-802 XX pp.828-830 XX pp.837-843 XX pp.891-893 XX pp.923-924 X pp.989-993 X p.998 X pp.1009- X 1010 p.1021 X pp.1023- XX 1029 pp.1035- XXX 1039 pp.1040- XX 1046 pp.1049- Unknown 1052 (no evidentiary basis provided to the Court) p.1087 X pp.1108- X 1109