Date: 20000720
Docket: IMM-2993-99
BETWEEN:
ABDI RAHIM ALI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.:
INTRODUCTION
[1] These reasons arise out of an application for judicial review of a decision of the Appeal Division (the "Tribunal") of the Immigration and Refugee Board wherein the Tribunal allowed the appeal of the respondent and, pursuant to paragraph 73(2)(a ) of the Immigration Act1, ordered that a deportation order be made against the applicant. The decision of the Tribunal is dated the 26th of May, 1999.
BACKGROUND
[2] The applicant is a permanent resident of Canada who was born in Kenya in March of 1961. He acquired his permanent resident status in Canada in 1992 under the sponsorship of his wife.
[3] The applicant travelled to Kenya on business in October of 1994. On the 11th of February, 1995, while still in Kenya, the applicant attended a house party. He left the party by automobile sometime around 10:30 p.m. Sometime later, he returned to the party. On his return, a confrontation developed between he and two other men. In the result, one of the other men received a stab wound and died.
[4] The applicant was charged with murder, an offence for which the mandatory sentence on conviction in Kenya is death.
[5] The applicant was invited to attend a meeting at the home of a senior police officer in Nairobi so the police officer "...could explain things to [him] personally."2 The applicant decided not to attend the meeting. Instead, he hastily arranged to leave Kenya and return to Canada. The applicant explained his hasty departure from Kenya on the basis of a fear of police practices in that country. That fear is borne out by an Amnesty International Report dated December, 1995 that appears on the Tribunal Record3. The report reads in part as follows:
| Torture and ill-treatment by the security forces is widespread. Criminal suspects are routinely tortured to extract confessions, ... |
| ... |
| Torture methods are frequently very brutal, usually beating with sticks, fists, rungus (knobbed sticks), handles of hoes and gun butts on different parts of the body. The most common torture is to beat the soles of the feet where bruises may disappear rapidly but where the pain inflicted can remain for the rest of the person"s life. Detainees are often tortured by being suspended upside down on a stick passed behind their knees and in front of their elbows and then beaten on the soles of their feet. One variation used is simultaneously blows to both ears, which is extremely painful and can rupture the ear drums. |
[6] Kenya and Canada do not have an extradition agreement. In the result, Kenyan officials requested the cooperation of the Canadian government in order to secure the return of the applicant to Kenya to face the charge against him.
[7] On the 25th of September, 1996, a report was made on behalf of the respondent against the applicant under section 27 of the Immigration Act. The report identified the applicant as a permanent resident described in subparagraph 27(1)(a.1)(ii). The relevant portions of subsection 27(1) of the Immigration Act read as follows:
27. (1) An immigration officer or a peace officer shall forward a written report to the Deputy Minister setting out the details of any information in the possession of the immigration officer or peace officer indicating that a permanent resident is a person who
27. (1) L'agent d'immigration ou l'agent de la paix doit faire part au sous-ministre, dans un rapport écrit et circonstancié, de renseignements concernant un résident permanent et indiquant que celui-ci, selon le cas_:
...
...
(a.1) outside Canada,
a.1) est une personne qui a, à l'étranger_:
...
...
(ii) has committed, in the opinion of the immigration officer or peace officer, based on a balance of probabilities, an act or omission that would constitute an offence under the laws of the place where the act or omission occurred and that, if committed in Canada, would constitute an offence that may be punishable under any Act of Parliament by a maximum term of imprisonment of ten years or more,
(ii) soit commis, de l'avis, fondé sur la prépondérance des probabilités, de l'agent d'immigration ou de l'agent de la paix, un fait " acte ou omission " qui constitue une infraction dans le pays où il a été commis et qui, s'il était commis au Canada, constituerait une infraction qui pourrait être punissable, aux termes d'une loi fédérale, par mise en accusation, d'un emprisonnement maximal égal ou supérieur à dix ans, sauf si la personne peut justifier auprès du ministre de sa réadaptation et du fait qu'au moins cinq ans se sont écoulés depuis la commission du fait;
...
...
[8] The report purported to be based on the following information:
| That, Mr. Abdi Rahim Ali also known as Ali Abdi Rahim also known as Rahim Abdi Ali is a person who has committed, in my opinion as an immigration officer, based on a balance of probabilities, an act or omission, namely: the murder of one Edward Robert Wainaira, in the area of Nairobi Kenya, on or about February 11, 1995, contrary to section 208, as read with section 204 of the Kenya Penal Code and that, if committed in Canada, would constitute an offence that may be punishable under an Act of Parliament; specifically, section 234 of the Criminal Code [manslaughter] for which one would be liable to a maximum term of imprisonment for life.4 |
[9] The report led to an inquiry before an adjudicator. The evidence before the adjudicator consisted of a duplicate police report from Kenya comprising: first, an unsigned covering report; secondly, typed copies of twenty-five unsigned and unsworn witness statements; thirdly, a copy of one signed but unsworn self-recorded statement; fourthly, a copy of an unsigned medical report; fifthly, a copy of a signed Exhibit Memo Form; and lastly, a copy of a signed blood analysts report.5 The respondent"s representative at the inquiry before the adjudicator called no witnesses, either in person or by telephone conference, to support the allegations contained in the unsigned statements. The applicant testified under oath before the adjudicator and was cross-examined by the respondent"s representative.
[10] The adjudicator concluded that the applicant was not a person described in subparagraph 27(1)(a.1)(ii) of the Immigration Act and in the result did not issue a removal order against the applicant. He wrote in his reasons:
| ...There is an even more fundamental problem to accepting the statements in the police report. Counsel for Mr. Ali raised this issue in his submission when he pointed out that none of the statements in the police report are signed save for those of the police. In fact, only one police statement... bears a signature. Counsel submits this is unsworn testimony and as such it is not reliable. Counsel speculated that anyone could have typed these statements. The Minister"s response is that these statements are statutory declarations and they were signed. The statements provided by the Kenyan police to the Minister are not photocopies, but only copies that have been typed from the originals. |
| In my opinion the police statements are not reliable. When one considers the fact there are inconsistencies in them, they are unsigned, the deponents have not been subject to cross examination, and they do not contain evidence of matters that supposedly took place in front of the witnesses, they cannot be seen as dependable. Where the consequences of an inquiry are as serious as they are in his case, the evidence in support of removal ought to be more reliable and trustworthy before being assigned any weight. The Minister seeks the removal of Mr. Ali to Kenya to face a trial of which the potential consequences are the death penalty. |
| In these circumstances these police statements cannot be assigned weight for the consideration of the issues in this inquiry. The only evidence that can be given weight and considered reliable and trustworthy is the testimony of Mr. Ali. Mr. Ali testified in person and was cross-examined. In this case Mr. Ali chose to present his oral evidence first allowing the Minister"s representative to cross examine him later. The evidence of Mr. Ali was not challenged and his credibility was not impeached.6 |
[11] The adjudicator went on in his reasons to evaluate the applicant"s evidence in the following terms:
| I do not believe that the evidence leads to the conclusion that Mr. Ali committed a murder. Mr. Ali met Mr. Wainaina only a few minutes before Mr. Wainaina died. The evidence is that only moments after their meeting Mr. Wainaina and his brother James began to fight Mr. Ali. It was only a few minutes after the fights started that Mr. Wainaina was stabbed. Mr. Ali was only defending himself from Mr. Wainaina and his brother. Mr. Ali"s evidence is that he picked up the knife hoping he would scare his assailants away. Mr. Ali said he was scared of the assailants, that they would harm him. He had no intention of causing death to the assailant. The evidence does not lead one to the conclusion that Mr. Ali had an intention to cause the death of Mr. Wainaina or [to] cause him grievous harm. There is no evidence to show that Mr. Ali had knowledge that he would cause a death when he picked up the knife. He picked it up to defend himself and to scare off Mr. Wainaina. He did not take the knife into his hand for the purpose of committing a felony. He did not cause the death of Mr. Wainaina to facilitate flight or escape. ...7 |
[12] The respondent appealed the decision of the adjudicator to the Tribunal pursuant to section 71 of the Immigration Act which reads as follows:
71. The Minister may appeal to the Appeal Division from a decision by an adjudicator in the course of an inquiry on any ground of appeal that involves a question of law or fact or mixed law and fact.
71. Le ministre peut, en invoquant comme moyen une question de droit, de fait ou mixte, faire appel devant la section d'appel de toute décision rendue par un arbitre dans le cadre d'une enquête.
The appeal was based only on a question of law, not on a question of fact or mixed law and fact. The only evidence adduced before the Tribunal was the documentary evidence that was before the adjudicator and a transcript of the oral testimony of the applicant. The hearing before the Tribunal was completed on the 22nd of May, 1998.
[13] More than 8 months later, the chair of the three member panel that comprised the Tribunal conducted a teleconference with counsel for the applicant and the respondent. The reasons of the majority members of the Tribunal, including the chair read in part as follows:
| A teleconference was held between the chair of the panel and both counsel to discuss the panel"s preference of hearing viva voce evidence from the respondent [here the applicant]. Both counsel indicated they were not in favour of reconvening in order to hear from the respondent. The chair made it clear that if counsel were opposed to reconvening in order to hear from the respondent, the panel would proceed to making a decision based on the documentary evidence before it, without hearing from the respondent. Ultimately, counsel agreed to a resumption of the hearing in order to hear from the respondent to enable the panel to make its own findings of credibility, while making it clear that neither was seeking to have such evidence placed before the panel.8 |
[14] On the 2nd of February, 1999, the Tribunal reconvened to hear the testimony of the applicant.
[15] In the result, the decision here under review, dated the 26th of May, 1999 followed.
THE DECISION UNDER REVIEW
[16] Two members of the three-member Tribunal allowed the respondent"s appeal and ordered that a deportation order be made against the applicant. The third member of the Tribunal dissented, provided separate reasons for his dissent, and indicated that he would have dismissed the respondent"s appeal from the adjudicator"s decision.
[17] The majority members of the Tribunal chose to prefer the version of events on the fateful night that was disclosed by the unsigned witness statements before them over the applicant"s version of events as related to them in oral testimony and in the transcript of the applicant"s testimony before the adjudicator. The majority members wrote:
| Overall with respect to the statements in evidence, we do not dismiss them out of hand, nor assign no weight to them as did the adjudicator at inquiry. Those statements that contain no signature indicate that the originals of those statements were attested to before a witness. While it would have been preferable for the appellant to have placed the originals before us, the fact that they were not originals does not necessarily render them not credible nor trustworthy.9 |
[18] I have some difficulty with the indication in the foregoing quotation that the unsigned statements indicate that the originals of those statements were attested to before a witness. In the material that is before the Court, the unsigned statements contain a signature block which is blank for the person giving the statement and a signature block for a witness which is also blank. Nothing on the face of the statement indicates that the originals were actually signed let alone that they were signed before a witness who also signed in the block provided.
[19] The majority members continue in their reasons:
| If any weight is given to the witness statements at all, doubt is cast on the respondent"s assertions that he did not engage in a fight with two assailants, and that he was beaten three times by these assailants for several minutes before the stabbing took place. Doubt is also cast on the respondent"s assertion that the stabbing took place in the kitchen much less that it took place precisely as the respondent described. Even if we were to disregard the witness statements, we would still be left with questions concerning some of the respondent"s claimed action. If the events unfolded exactly as the respondent described, we see no reason why the respondent would have felt the need to flee Kenya.10 [emphasis in original] |
I note that the Amnesty International report referred to earlier in these reasons was before the Tribunal and would appear to provide substantial independent and credible corroboration to the applicant"s evidence as to why he felt the need to flee Kenya.
[20] In the result, the majority members concluded in the following terms:
| With respect to the five issues raised by counsel for the appellant [here the respondent], we find the following: |
| (1) the adjudicator made findings of fact not based on all of the evidence before him. We would give weight to some of the evidence, in the form of witness statements which does not appear to be not credible nor trustworthy; |
| (2) the adjudicator gave no consideration to evidence before him which put into question some of the respondent"s testimony; as the respondent would have a motive for describing events which would put him in the best possible light and we see no ulterior motive for many of those witnesses whose statements are described herein to make the statements that they did, we would give weight to their statements; |
| (3) the adjudicator erred in not considering whether the act of the respondent constitutes the Kenyan offence of manslaughter; we find that the evidence establishes on a balance of probabilities that the act of the respondent constitutes the Kenyan offence of manslaughter and the Canadian offence of manslaughter; |
| (4) as it is unnecessary for us to so do, we give no consideration to whether the act of the respondent constitutes the Kenyan offence of murder; |
| (5) the adjudicator applied the proper test in considering whether the respondent acted in self-defence, since, had the respondent established that he acted in self-defence, under Canadian law his act would not have been "unlawful". |
| In reviewing and considering all of the evidence and arguments before us, we find that the appellant has established on a balance of probabilities that the respondent committed an act which constitutes an offence in Kenya, and that the same act constitutes an offence in Canada, punishable by a term of imprisonment of ten years or more. This being the case, we find the respondent described in subparagraph 27(1)(a.1)(ii) of the Act and subject to removal from Canada.11 |
[21] The minority member of the Tribunal reached an opposite conclusion. He wrote:
| ...I agree with my colleagues with respect to four of the issues. I differ only on the second issue, which goes to the finding of credibility. In my view, when the respondent"s evidence is weighed together with the evidence contained in the Kenyan police report material, his version of the principal events in dispute is credible. Having found the respondent credible in this regard, I have concluded that his "act" either would not constitute the offence of manslaughter in Canada, or that it would constitute an act of self-defence. To put it another way, I have concluded that the appellant has failed to establish, on a balance of probabilities, that the respondent is described by section 27(1)(a.1)(ii) of the Immigration Act ... .12 |
[22] The minority member of the Tribunal provides a footnote to the first sentence of the foregoing quotation which qualifies his agreement with his colleagues in respect of one other issue. The footnote reads as follows:
| That is, with respect to the third issue, I agree with the majority that the adjudicator erred in not considering whether the alleged act of the respondent constituted the offence of manslaughter under section 202 of the Kenya Penal Code. I disagree with majority"s factual conclusions on this issue.13 |
THE ISSUES
[23] Counsel for the applicant and respondent described the issues before the Court on this application for judicial review in essentially the same terms. They are the following:
| 1. Whether the Tribunal erred in shifting the burden of proof on the appeal before it, which lay on the respondent before this Court, onto the applicant before this Court; |
| 2. Whether the Tribunal erred in its credibility finding in ignoring relevant evidence, making its decision without regard to the material before it, and relying on irrelevant considerations; |
| 3. Whether the Tribunal ignored relevant evidence in disbelieving the applicant because he did not remain in Kenya to face charges of capital murder; |
| 4. Whether the Tribunal erred in finding that the wound to the deceased"s chest was more likely to be placed by design that by accident without having any expert medical evidence to support that finding; |
| 5. Whether the Tribunal erred in substituting for the findings of fact made by the adjudicator its own; |
| 6. Whether the Tribunal erred in applying the law in Canada with respect to self-defence; and |
| 7. Whether the Tribunal erred in finding that the applicant was not acting in self-defence in arming himself with a knife in the circumstances of this matter. |
[1] In my analysis, I will deal with the first issue alone, then with the second and fifth issues together, with the sixth and seventh issues together, then with the third issue alone and finally with the fourth issue alone.
ANALYSIS
| The Issue of Burden or Onus |
[2] It was not in dispute before me that the burden or onus of establishing before the adjudicator that the applicant, on a balance of probabilities, is a person described in subparagraph 27(1)(a.1)(ii) of the Immigration Act was on the respondent before this Court. Similarly, it was not in dispute that, when the adjudicator determined, on a balance of probabilities, that the applicant is not a person so described and the respondent appealed that decision to the Tribunal, the burden or onus remained on the respondent.
[3] The evidential burden or the legal burden of proof does not shift. In the Law of Evidence in Canada, 2nd edition,14 the learned authors wrote at page 71, paragraph 3.40:
| The authorities and the jurisprudence often refer to the shifting of the evidential burden or the legal burden of proof. Except for the operation of presumptions of law or rebuttable statutory provisions, these burdens do not shift. [citations omitted] |
[4] The learned authors qualified the foregoing statement at paragraph 3.42 where they note that an evidential or a legal burden may be conditional upon the discharge of another evidential or legal burden by the opposite party but this is not, strictly speaking, a shift of burden. The burdens remain constant. A party may only be required to discharge a burden on him, her or it, if another burden on the other party is first discharged.
[5] There is some evidence on the face of the reasons of the majority members of the Tribunal that they considered there to be a conditional burden on the applicant, at least in respect of the issue of whether or not the applicant"s action constituted self-defence. In their conclusions quoted above, the majority members wrote:
| (5) The adjudicator applied the proper test in considering whether the respondent [here the applicant] acted in self-defence, since, had the respondent established that he acted in self-defence under Canadian Law his act would not have been "unlawful".15 [emphasis added] |
[6] Counsel for the respondent acknowledged that the burden lay with the respondent including the burden to disprove self-defence16.
[7] Counsel for the respondent referred me to the decision of the Privy Council in Robins v. National Trust Co., Ltd., et al17 where Viscount Dunedin wrote at page 101:
| But, as has been already explained, there was no question of onus in the determination as it came to be made. It was a considered result of the evidence, and onus as a determining factor never arose for the Judges could, and did, come to a positive conclusion on the evidence laid. |
Counsel for the respondent urged that that is the situation in this matter. I cannot accept that submission.
[8] At page 23 of their reasons, the majority members of the Tribunal wrote:
| When the actions of the respondent [here the applicant] are viewed "in toto" we are not persuaded that he has established that his version of events, on balance, is most likely what occurred.18 [emphasis added] |
The burden was not on the applicant to establish that his version of events is most likely what occurred. On the contrary, the burden was on the respondent to establish, on a balance of probabilities, that the version of events espoused by the Kenyan police was what had occurred.
[9] Again at page 27 of the reasons of the majority members, they wrote:
| The respondent [here the applicant] also failed to establish that his description of events is on a balance of probabilities, likely the manner in which they occurred.19 |
Once again, the burden was not on the applicant to establish that his description of events was, on a balance of probabilities, likely the manner in which they occurred. Quite the opposite, the onus was on the respondent to establish, on a balance of probabilities, that the version of events espoused by the Kenyan police was likely the manner in which those events occurred.
[10] I conclude that the majority members of the Tribunal erred in law, and in a reviewable manner, in placing on the applicant a burden that was not properly his. In the words of Lord Dunedin in Robins, supra, while the Tribunal, after hearing and weighing the evidence came to a determinate conclusion, it only did so by improperly assigning an onus or burden to the applicant that was not his.
[11] The foregoing conclusion is determinate of this matter. Nonetheless, I will briefly consider the other issues that were argued before me.
| Credibility Findings and Substitution of Findings of Fact |
[12] As noted earlier in these reasons, the respondent appealed to the Tribunal only on a question of law. Also as noted earlier in these reasons, neither of the parties before the Tribunal called the applicant to give viva voce evidence before the Tribunal. Rather, it was the Tribunal itself that insisted that the evidence of the applicant be provided in testimony before it. That insistence was apparently only reluctantly conceded to by counsel for the parties.
[13] The majority members of the Tribunal quite properly noted in their reasons that a hearing before the Tribunal of an appeal from an adjudicator"s initial determination is a trial de novo . In Labasova v. Canada (Secretary of State)20, Mr. Justice Marceau wrote at paragraph 7:
| If, as I noted above, it is borne in mind that the appeal from an adjudicator"s initial determination entailed a de novo trial, then so far as the Appeal Division is concerned the assessment which the adjudicator may have made of the facts no longer had any bearing... |
[14] While it is true that section 72 of the Immigration Act authorizes the Appeal Division to order a reopening of an inquiry "...for the receiving of any additional evidence or testimony", I am not satisfied that an implication can be read into section 72 that the Appeal Division is precluded itself from requesting the re-attendance of a witness who appeared before the adjudicator, such as the applicant here, to re-testify. Rule 39 of the Immigration Appeal Division Rules21 provides the Appeal Division with authority to take "...whatever measures are necessary to provide for a full and proper hearing and to dispose [of a matter before it] expeditiously."
[15] I am satisfied that the actions of the Appeal Division in requesting, if not requiring, that the applicant testify before it were reasonably open to it. I am not satisfied that the fact that the respondent appealed to the Appeal Division on a question of law only in any sense restricted the discretion of the Appeal Division to provide for a full and proper hearing, as it saw fit, in order to dispose of an appeal such as that here under consideration.
[16] Further, I am satisfied that the credibility findings of the majority members of the Tribunal were reasonably open to them since they had heard the testimony of the applicant and observed demeanour.
| Self-Defence |
[17] The law of self-defence in Canada is set out in part in section 34 of the Criminal Code of Canada22. That section reads as follows:
34. (1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.
34. (1) Toute personne illégalement attaquée sans provocation de sa part est fondée à employer la force qui est nécessaire pour repousser l'attaque si, en ce faisant, elle n'a pas l'intention de causer la mort ni des lésions corporelles graves.
[18] In R. v. Baker23, Mr. Justice Lambert, for the Court, wrote at page 374:
| ...where self-defence is raised in a homicide case it must be considered as part of the decision about whether the accused"s act was unlawful and culpable and not as a separate matter following a conclusion that the accused"s act was unlawful and culpable. |
[19] In this matter, the majority members of the Tribunal, in their reasons first considered whether the applicant"s act or omission was, on a balance of probabilities, "unlawful and culpable" and only thereafter considered self-defence "as a separate matter".
[20] In Li v. Canada (Minister of Citizenship and Immigration)24, Mr. Justice Strayer, for the Court, in the context of review of a decision of an adjudicator under a different provision of the Immigration Act, wrote at paragraph 17:
| Such determinations of equivalency must be made by an adjudicator in a quasi-judicial proceeding. It is hardly to be expected that he or she is to make such fine distinctions in Canadian, much less foreign, criminal law. The purpose of the provision is obviously to exclude from Canada persons who have done things abroad, for which they have been convicted there, which Canada regards by its laws as constituting serious misconduct. This purpose would not, for example, be served by a rule that two offences are not equivalent because the requirement of a particular intent in the foreign law is treated as an element of the offence, whereas in Canadian law its lack is treated as a defence. |
[21] I am satisfied that the foregoing applies by analogy here. While the principle of law enunciated in Baker, supra, was not properly applied by the majority members of the Tribunal, I am satisfied that nothing turns on that failure in terms of the ultimate conclusion of the majority members. In the result, I find no reviewable error in that regard.
[22] Similarly, I find no reviewable error on the part of the majority members of the Tribunal in concluding that the applicant was not acting in self-defence in arming himself with a knife in all of the circumstances of this matter as determined by them.
Ignoring Evidence Regarding Failure to Remain in Kenya
[23] As noted early on in these reasons, the majority members of the Appeal Division wrote in their reasons:
| If the events unfolded exactly as the respondent described, we see no reason why the respondent would have felt the need to flee Kenya.25 |
As also noted earlier in these reasons, the majority members would appear to have ignored compelling evidence that was before them from Amnesty International as to why the applicant would have felt the need to flee Kenya in the circumstances in which he found himself. While the ignoring of such evidence, in my view, clearly constituted an error on the part of the majority members of the Tribunal, I am not satisfied that it was an error central to their decision. In the circumstances, I do not regard it to be a reviewable error.
| The Determination by the Majority Members of the Tribunal with Regard to the Intentional or Accidental Nature of the Fatal Wound |
[24] The Tribunal had before it very sparse and, what I determine to be unsatisfactory, evidence from a pathologist/medical officer regarding the fatal wound. The majority members wrote:
| The knife, according to the respondent [here the applicant], cleanly entered the victim"s body. No bone or cartilage was encountered. A report signed by a pathologist/medical officer describes an upward slanting stab wound to the chest with a sharp object which resulted in the perforation of the heart from the "right ventricular through the inteventricular septum through the left ventricle" which provided the exit point for the knife. The estimated length given in the report for "the object in the body" was 160mm. The knife essentially entered the lower right chamber of the victim"s heart, and exited through the lower left chamber. It would have been helpful had the appellant [here the respondent] introduced expert evidence to adduce whether the injury to the victim"s heart could have resulted from running into a knife that was simply held or whether force would have had to have been applied in order for such a wound to have been inflicted which resulted in the victim"s death, however, the evidence was not put before us.26 |
Later in their reasons, the majority members wrote:
| With respect to the actual stabbing, again, in giving evidence at the appeal hearing, though the respondent asserted that the stabbing occurred as a result of a collision in the kitchen, he could provide no detail as to his position on impact, or the victim"s position on impact. Though counsel for the appellant [here the respondent] pointed to the nature of the wound incurred by the victim, and argued that an upward slanting stab wound from a knife would not occur without the knife being directed, he provided no expert evidence to confirm that such a stabbing could not have occurred through an accidental impact. However, we note that this knife not only entered the victim on impact on an upward slant, it stabbed the victim cleanly through a most vulnerable of organs, protected by the rib cage, the heart. Such a wound in such a strategic location appears more likely to have been placed by design than by accident. We have difficulty envisioning a collision wherein, without directed movement of the respondent"s arm, the victim, who according to the respondent was a number of inches taller than he, would end up stabbed cleanly through the heart by a knife held by the respondent at a level slightly higher than his own waist. The testimony of the respondent [here the applicant], because he testified that he could recall nothing about the collision, which would have occurred without witnesses according to him, was not of assistance in providing a picture of the claimed accidental impact.27 |
[25] To their credit, the majority members note with regret the lack of expert evidence provided by the respondent to assist them in interpreting the medical evidence before them. Once again, I note that the onus or burden, both before the adjudicator and before the Tribunal, was on the respondent. The respondent saw fit not to provide expert evidence. Nonetheless, the majority members of the Tribunal went on to speculate regarding whether the fatal wound was inflicted accidentally or intentionally, a central issue in their determination against the applicant. In so doing, in the absence of expert evidence, once again, I find that the majority members of the Tribunal erred in law.
[26] Counsel for the respondent cited a number of cases before me for the proposition that a trier of fact does not necessarily require expert evidence in order to draw inferences from facts.28 Having reviewed the cited cases, I am satisfied that none of them is directly applicable on the facts of this matter.
CONCLUSION
[27] Based upon the foregoing analysis, and with particular reference to what I determine to be the Tribunal"s error of law regarding the matter of onus, this application for judicial review will be allowed, the decision of the majority members of the Tribunal that is under review will be set aside and the matter will be referred back to the Tribunal for rehearing and redetermination.
CERTIFICATION OF A QUESTION
[28] The respondent shall have ten days from the date of the issuance of these reasons to make representations on certification of a question, having first served them on counsel for the applicant. Counsel for the applicant shall have ten days thereafter within which to serve and file responding representations. The respondent may, within three working days of the service on him of the respondent"s response, file any reply.
________________________________
J.F.C.C.
Ottawa, Ontario
July 20, 2000
__________________2 Tribunal Record, Volume I, page 48.
3 Tribunal Record, Volume I, page 97.
4 Tribunal Record, Volume I, page 81.
5 Tribunal Record, Volume II, pages 38 to 116.
6 Tribunal Record, Volume II, page 124.
7 Tribunal Record, Volume II, pages 125 and 126.
8 Tribunal Record, Volume III, pages 116 and 117.
9 Tribunal Record, Volume III, pages 135 and 136.
10 Tribunal Record, Volume III, pages 136 and 137.
11 Tribunal Record, Volume III, pages 141-142.
12 Tribunal Record, Volume III, page 144.
13 Tribunal Record, Volume III, page 144.
14 Sopinka, Lederman and Bryant, Butterworths.
15 Tribunal Record, Volume III, page 142.
16 See R. v. Holmes (1988), 41 C.C.C. (3d) 497 (S.C.C.), at 513.
18 Tribunal Record, Volume III, page 137.
19 Tribunal Record, Volume III, page 141.
20 (1994), 25 Imm. L.R. (2d) 97 (F.C.A.).
23 (1988), 45 C.C.C. (3d) 368 (B.C.C.A.).
25 Tribunal Record, Volume III, pages 136 and 137.
26 Tribunal Record, Volume III, pages 120-121.
27 Tribunal Record, Volume III, pages 131 and 132.
28 See Lakhani (Guardian Ad Litem ov) v. Samson, [1982] B.C. J. No. 397 (S.C.), at paragraph 3 (Q.L.).; R. v. Gould (1993), 42 Nfld. and T.E. I. R. 233 (Nfld. C.A.); and R. v. N.J.B., [1999] O.J. No. 2235 (O.C.J.).