Date: 19980601
Docket: IMM-3352-97
BETWEEN:
CHERRIE ANNE LOUANNE JAMES
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
Wetston J.
[1] Ms. James is a citizen of Trinidad and Tobago. There was no issue as to her credibility nor was there any question as to her evidence being trustworthy. She has been constantly and repetitively abused by her husband. She went to the police on at least 13 or 14 occasions. Despite the existence of an interim protection order under the Domestic Violence Act, 1991, and a court imposed restraining order, her husband continued to harass and stalk her. He was never arrested or charged. Indeed, her relief from her husband's threatening behaviour was only to be assisted out of the country by a police constable. The Board found that the applicant did not provide the panel with clear and convincing proof of the state's inability to provide her with adequate protection. Despite the able submissions of counsel for the respondent, I disagree.
[2] It is the opinion of the court that Ms. James did provide clear and convincing evidence with respect to the failure of the state to provide effective protection. My review of the evidence of the applicant, as well as the documentary record, reveals significant evidence which is inconsistent with the central finding of the Board with respect to the availability of effective state protection. There is no doubt evidence which supports that finding in and of itself, but there is also abundant material, in conjunction with the trustworthy testimony of the applicant, to suggest that state protection was ineffective. The documentary evidence must be weighed in relation to and in conjunction with the oral evidence of Ms. James. In this regard, I must conclude that the finding as to effective state protection in this case is perverse.
[3] I have indicated my difficulty with the manner in which the Board considered the evidence in this matter. This is highlighted by the following finding which is, in my opinion, unreasonable. The claimant testified that she and her children received a great deal of assistance from Constable Calvin McMayo. The Board found this to be an example of the state's willingness and ability (own emphasis) to protect. However, it is also clear that Const. McMayo assisted her in leaving Trinidad. A finding of adequate protection cannot flow from police asistance to leave the country that is unable to provide adequate protection.
[4] The application for judicial review is allowed. The matter shall be returned to a differently constituted panel for rehearing and reconsideration.
[5] No question for certification was proposed.
Howard I. Wetston
Judge
Ottawa, Ontario
June 1, 1998
[6]
Date: 19980601
Docket: IMM-3352-97
Ottawa, Ontario, the 1st of June 1998
PRESENT: The Honourable Mr. Justice Wetston
BETWEEN:
CHERRIE ANNE LOUANNE JAMES
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
The application for judicial review is allowed. The matter is returned to a differently constituted panel for rehearing and reconsideration.
Howard I. Wetston
Judge
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-3352-97
STYLE OF CAUSE: CHERRIE ANNE LOUANNE JAMES v MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: May 29, 1998
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE WETSTON
DATED: June 1, 1998
APPEARANCES:
Ms. Karen Andrews FOR THE APPLICANT
Ms. Sally Thomas FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Rexdale Community Legal Clinic FOR THE APPLICANT Etobicoke, Ontario
Mr. George Thomson FOR THE RESPONDENT Deputy Attorney General of Canada