Date: 20010502
Docket: IMM-5-00
Neutral citation: 2001 FCT 426
BETWEEN:
RODOLFO PACIFICADOR
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for leave and judicial review pursuant to section 82.1 of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act") of the conditional deportation order issued by Adjudicator Frederica Douglas ("Adjudicator Douglas") of the Immigration and Refugee Board of Canada, Adjudication Division on December 17, 1999. The applicant has also filed a Notice of Constitutional Question.
Order Sought
[2] The applicant seeks:
1. An order that the above decision be set aside.
2. An order that subparagraph 19(1)(c.1)(ii) of the Act is of no force or effect, inoperative, and cannot be applied because it is inconsistent with the applicant's rights guaranteed under section 7 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (hereafter, the "Charter").
3. In the alternative, that this Honourable Court interpret and apply subparagraph 19(1)(c.1)(ii) in a way that complies with his rights under section 7 of the Charter.
4. In the further alternative, an Order that the matter be redetermined by a differently constituted tribunal, with such directions as this Honourable Court deems appropriate.
Background Facts
[3] The applicant, Rodolfo Pacificador is a citizen of the Republic of the Philippines and is from a family who have been very active in politics in the Philippines. His father, Arturo Pacificador was associated with the Kilusan Bagong Lipunan (KLP) party of the late Ferdinand Marcos and was elected congressman for the Antique region from 1978 to 1986. The applicant worked on election campaigns for his father in 1978 and again in 1984 and was the CEO of his father's constituency office.
[4] In the February, 1986 presidential election, Evelio Javier led the campaign at the local level for Corazon Aquino, who was the opponent of Ferdinand Marcos. On February 11, 1986, Evelio Javier was shot and killed. The applicant was charged with murder, frustrated murder and attempted murder in the Philippines on October 13, 1986 and a warrant for his arrest was issued in the Philippines on January 8, 1987. With respect to the alleged offences, the Information laid against the applicant in the Philippines, which is found in volume 6 at page 1,094 of the certified record of the Adjudication Division decision, states in part:
The undersigned Senior State Prosecutor of the Ministry of Justice accuses JOHN PALOY, VINCENTE VEGAFRIA, EDUARDO IRAN alias "BOY MUSLIM" alias "MUKLO", RUDOLFO PACIFICADOR alias "DING", AVELINO T. JAVELLANA, ARTURO F. PACIFICADOR and JOHN DOES of the crime of murder committed as follows:
That between the hours of 10:00 and 11:00 o'clock in the morning of February 11, 1986, in the Municipality of San Jose, Province of Antique, Philippines, a place within the jurisdiction of this Honourable Court, the above accused, namely JOHN PALOY, VINCENTE VEGAFRIA, EDUARDO IRAN alias "BOY MUSLIM" alias "MUKLO", RUDOLFO PACIFICADOR alias "DING", AVELINO T. JAVELLANA, ARTURO F. PACIFICADOR, conspiring, confederating and mutually helping one another, with John Does whose identities and whereabouts are still unknown, with intent to kill, treachery and evident premeditation, did, then and there, wilfully, unlawfully and feloniously attack, assault and shoot ex-Governor Evelio Javier with the use of high-powered rifles, hitting him on the vital parts of his body which caused his instant death as a consequence."
[5] The applicant testified before Adjudicator Douglas that he went into hiding following the overthrow of Ferdinand Marcos on February 25, 1986 until he left the Philippines on March 15, 1986. The applicant entered Canada from the United States in September, 1987, and October 8, 1987 was set for an immigration hearing before he was directed back to the United States (there is some dispute as to his whereabouts between leaving the Philippines and arriving in the United States). In the United States an immigration judge issued a deportation order to France on October 8, 1987. The October 8, 1987 immigration hearing in Canada was adjourned until the next day. The applicant was released on immigration bail in Canada on October 9, 1987 and then later on separate bonds. According to the applicant, he was found not to be a convention refugee on September 16, 1988, for which decision he requested redetermination on October 18, 1988. On April 24, 1991 the applicant was found to have a credible basis for his refugee claim but did not apply for landing status following this decision. In late December, 1991, the applicant was detained on an extradition warrant and remanded in custody at a Toronto jail until his release on bail with terms and conditions by order dated January 23, 1998 of Dambrot J. of the Ontario Court of Justice, General Division. The applicant's refugee claim was referred to the Convention Refugee Determination Division in 1998.
[6] The applicant became the subject of an immigration inquiry which arose from a Direction for Inquiry and a report under section 27 of the Act, both dated February 18, 1997. The report alleges the applicant is a person as described in subsection 27(2)(a) and subparagraph 19(1)(c.1)(ii) of the Act. The inquiry opened in February, 1998 before Adjudicator Douglas. Various motions were brought between this time and the adjudicator's decision of December 17, 1999, including a motion that Adjudicator Douglas recuse herself. In her decision, Adjudicator Douglas issued a conditional deportation order to the applicant pursuant to subsection 32.1 (4) of the Act.
Applicant's Submissions
[7] 1. Bias
Adjudicator Douglas sat on an earlier detention review hearing of the applicant at which, in the applicant's submission, she made certain findings and comments which indicate an adverse perception of the integrity or credibility of counsel for the applicant. The applicant alleges Adjudicator Douglas did not consider his recusal motion on its merits and that she misapprehended the argument before her. Thus, on these bases alone, her decision cannot stand according to the applicant.
[8] The applicant argues that where a decision maker has previously been involved in an adjudicative capacity with the same or related issue, involving the same or substantially the same evidence, a reasonable apprehension of bias will exist on the basis that consistency can be expected of that adjudicator.
[9] The applicant further argues that where the decision maker made
credibility determinations at an earlier hearing in a situation as above and made assessments of counsel's credibility or integrity, a reasonable apprehension of bias arises in both cases.
[10] The applicant then proceeds to argue three specific situations from the
detention hearing, each of which are said to give rise to a reasonable apprehension of bias.
(1) The applicant argues that by citing with approval, the comments of a prior adjudicator that the applicant "is a fugitive from justice in the Philippines" at page 10 of her decision on the detention review, a predisposition of this central issue in the inquiry is demonstrated by Adjudicator Douglas.
(2) Adjudicator Douglas notes at page 10 of her reasons on the detention review, that upon the applicant winning his credible basis hearing, he had the option to apply for landed status despite counsel's explanation as to why this option afforded him no benefit. Adjudicator Douglas made the same determination in her ruling on the inquiry and placed the onus on the applicant to have advanced his refugee claim.
(3) Adjudicator Douglas impugned counsel's integrity and credibility at the detention hearing by attributing to counsel the delay in "realizing" that the applicant should have taken responsibility for moving his refugee claim forward. Counsel's position was that the legal responsibility for holding the hearing in a timely manner was upon the immigration authorities.
The applicant offers the decision of R v. Curragh, [1997] 1 S.C.R. 537 in
support of its submission that where predisposition or a reasonable apprehension of bias is found on review, the usual remedy will be a new hearing before a different decision maker.
[11] 2. Disclosure
The applicant made a motion to Adjudicator Douglas requesting disclosure from the Department of Citizenship and Immigration and from the Department of Justice. The applicant received documents from the Department of Citizenship and Immigration, however, exemptions were claimed and documents and portions of documents have not been disclosed. The applicant submits that an immigration officer indicated to co-counsel prior to the request for disclosure, that the Department of Justice would have relevant documents touching upon the immigration case. Thus, the applicant argues there is no issue as to the relevance of these documents to his case. The Department of Justice claimed full exemption for all documents concerning the applicant.
[12] The applicant submits he has a right to these documents and that they
would further support his "disguised extradition" constitutional argument, and that the Departments of Immigration and Justice improperly colluded to affect his removal from Canada. The applicant argues that not only is there a duty on the government to make full disclosure to a person concerned with an immigration inquiry, fairness and natural justice require that he know the case to be made against him and that he be provided with an opportunity to present his own evidence to substantiate his position.
[13] Adjudicator Douglas ruled that she did not have jurisdiction to compel
disclosure and noted that such requests were made under the Access to Information Act, R.S.C. 1985, c. A-1 and the Privacy Act, R.S.C. 1985, c. P-21. She ruled in the alternative that if she were to seize jurisdiction, there was insufficient evidence that the non-disclosure would hinder a full and proper inquiry. The applicant submits that an adjudicator has power to compel disclosure where it relates to the ability of a person to properly represent himself at an immigration inquiry. The applicant offers subsection 80.1(2) of the Act in support of this submission.
[14] The applicant submits the concepts under section 7 of the Charter
require that full disclosure be made. The applicant further submits the exemption contained in paragraph 21(1)(b) of the Access to Information Act for "consultations or deliberations involving officers or employees of a government institution, a minister or the Crown or the staff of a minister of the Crown" should not prevent him from accessing records that would demonstrate collusion. The applicant also argues that an exemption to solicitor-client privilege exists where the record demonstrates impropriety and further claims that improper collusion leading to "disguised extradition" is such an impropriety.
[15] Adjudicator Douglas, in the applicant's submission, erred in law in ruling
that disclosure was inappropriate because "counsel is unable to state what specific document he is seeking to obtain." To require a party to specify the material he is seeking, material that a party does not know of in advance with any degree of specificity, puts an impossible burden on the party according to the applicant. Thus, Adjudicator Douglas' findings were in error on these points.
[16] 3. Constitutional Issues
(a) Infringement of the applicant's right to life, liberty or security of the person
The applicant submits the protection afforded by section 7 of the Charter is very broad and that the potential consequences to him outside of Canada can be considered in assessing whether removal will violate section 7 of the Charter. The applicant submits that his immigration inquiry engaged section 7 of the Charter in the four following ways:
1. Based on the evidence set out below, his life, liberty and security of the person are put into jeopardy through proceedings which will cause him to be deported to the Philippines where he faces, among other things, torture or death.
2. As a refugee claimant in Canada he faces "the threat of physical punishment or suffering" as referred to in Singh v. Canada (Minister of Employment and Immigration) (1985), 14 C.R.R. 13 (S.C.C.), per Wilson J. at page 49. Thus, the applicant enjoys the protection of section 7 of the Charter since the result of the inquiry may have a direct impact on the adjudication of his refugee claim.
3. The applicant has been on "immigration bail" pending inquiry, which contains terms and conditions which infringe on his liberty while his inquiry is pending, and for which he faces punishment in the case of any breaches.
4. The inquiry process, in context of the applicant's broader immigration case, will lead to indicia of insecurity such as "stress and anxiety resulting from a multitude of factors, including possible disruption of family social life and work, legal costs, uncertainty as to the outcome and sanction".
The applicant submits that following Singh, supra, the Federal Court of Appeal has handed down conflicting decisions on whether there is a section 7 Charter interest involved when a person faces deportation.
(b) Principles of fundamental justice and the "reasonable grounds to believe" standard
The applicant submits that since the Charter is the supreme law of Canada, subparagraph 19(1)(c.1)(ii) of the Act must be interpreted in the context of the principles of fundamental justice and in accordance with section 3 of the Act. In particular, the words "reasonable grounds to believe" contained in subparagraph 19(1)(c.1)(ii) if interpreted as formerly interpreted by the Court in Chiau v. Canada (Minister of Citizenship and Immigration), [1998] 2 F.C. 642 (F.C.T.D.) would lead to a breach of the applicant's rights under section 7 of the Charter.
The applicant submits that in order to provide for a constitutionally acceptable standard the words "reasonable grounds to believe" found in subparagraph 19(1)(c.1)(ii) must be interpreted as requiring "clear and convincing proof" that the applicant committed an office punishable by ten years imprisonment or more.
(c) Retrospective application of the law as an infringement of fundamental justice
The applicant states that subparagraph 19(1)(c.1)(ii) of the Act came into force in February, 1993, along with a transitional provision, section 109 of S.C. 1992, c.49. He argues that because of the wording of section 109, subparagraph 19(1)(c.1)(ii) does not apply to him. He states that even if the sections do apply to him, they are contrary to the principles of fundamental justice and should be held to be of no force or effect. He also argues that the application of subparagraph 19(1)(c.1)(ii) to him infringes his section 7 Charter rights.
(d) Presumption of innocence
The applicant argues that subparagraph 19(1)(c.1) contains an exemption for persons who satisfy the Minister of their rehabilitation and for whom five years have elapsed since the expiration of their sentence or since the commission of the offence as the case may be. He states that since he must plead guilty to an offence of which he is not guilty in order to avail himself of this provision, the section is contrary to the principles of fundamental justice and should be struck down.
(e) Disguised extradition
The applicant submits it is a principle of fundamental justice to not be subjected to "disguised extradition" through deportation. This principle recognizes, according to the applicant, that it is unseemly for a country to accomplish indirectly what it may be unable to do directly (return a fugitive to a foreign state that has made a request for such return).
[17] The applicant submits that the overall evidence demonstrates that the
respondent's purpose in instituting the 1998-99 inquiry was to return him to the Philippines because the Philippine government asked for him. There is no indication, in the applicant's submission, that the respondent's purpose was to deport him because his presence in Canada is not conducive to the public good. The applicant submits the following factors demonstrate the respondent's improper purpose:
(1) Statements of immigration officers at various times that indicate the respondent's purpose is to return the applicant because of a request by the Philippine government:
(1) In 1990, an immigration officer stated that if found to be a refugee, it will be extremely difficult to remove the applicant to the Philippines as its government requested.
(2) In May 1994, an immigration officer commented that the applicant's immigration case might be moot because appeals in his extradition case might be unsuccessful and that he might be extradited.
(iii) In October 1994, a notation was made on the applicant's immigration file to "hold off" until his extradition was complete.
(iv) In May 1997, an immigration officer wrote that if the applicant does not get extradited, "then we will reconsider."
(2) The identity of interest and close cooperation shown between immigration officials and Department of Justice officials working on the applicant's extradition case.
(3) Evidence that the extradition treaty between Canada and the Philippines was specifically designed to thwart the applicant's refugee claim.
(4) The timing of the current inquiry. After the applicant's positive credible basis decision, the respondent took the position that no further immigration proceedings were to take place until completion of the extradition case, and concluded that he was not entitled to a refugee hearing because he failed to submit an application for landing under the backlog program. When the applicant was released on bail in his extradition case, the respondent's position then changed and steps were taken to have this inquiry proceed. The applicant submits that by instituting this inquiry, the respondent attempted to return the applicant to the Philippines (something which Canadian authorities have not yet been able to accomplish). The applicant submits this is an extradition purpose and not a deportation purpose.
(5) There is a lack of prior or sustained action to obtain a deportation order. The applicant argues that he has been subject of an adjourned inquiry since 1988 and that following his positive credible basis decision, the transitional provisions contained in R.S.C. 1985 (4th Supp.), c. 28, subsections 43(4) and (5) required that his refugee claim be referred to the CRDD for commencement of a hearing into the claim "as soon as practicable." The applicant submits the claim was never referred and that the respondent kept his file in "backlog" processing, and never clearly communicated to him its intentions.
[18] Finally, the applicant submits the respondent concluded, without any
support in law, that his refugee claim need no longer be dealt with. The applicant's original inquiry could not be resumed, in order for the removal order to be issued, unless his refugee claim was dealt with. The fact that, in the applicant's submission, the respondent chose to do nothing (instead of dealing with the claim with a view to obtain a removal order at a resumption of the original inquiry), indicates that the respondent's purpose is not to deport him because his presence is not conducive to the public good.
[19] Thus, the applicant submits he has satisfied the onus of demonstrating that
by instituting the present inquiry, the state is engaging in disguised extradition. As this constitutes a breach of fundamental justice under section 7 of the Charter, the applicant submits that the inquiry should be declared a nullity.
[20] 4. The Merits
The applicant submits that the decision of Legaultv. Canada (Secretary of State) (1997), 90 F.T.R. 145, (F.C.T.D.), rev'd (1997) 219 N.R. 376 is not authority for the broad general proposition that subparagraph 19(1)(c.1)(ii) could be satisfied by adducing the documentation showing that he had been charged in the Philippines. Legault, supra contains distinguishing factors such as that the applicant did not testify about the allegations against him, did not testify that he was innocent, and the adjudicator was dealing with U.S. charges arising from the grand jury process. Thus, it was inappropriate for Adjudicator Douglas to rely on the charging documents as trustworthy evidence in his case (as it is his position that the Philippine state is using false charges as the means of politically prosecuting him).
[21] Adjudicator Douglas was not satisfied that the applicant's testimony was
credible and trustworthy and found that the information in the charging documents sufficiently met "the low threshold test applied under 19(1)(c.1)(ii)." The applicant submits five findings of fact by Adjudicator Douglas in support of her conclusion that his evidence was not credible or trustworthy, are perverse, capricious or otherwise unreasonable.
Respondent's Submissions
[22] A. Answer to the applicant's bias arguments
The respondent submits Adjudicator Douglas correctly denied the applicant's motion that she recuse herself. The respondent addresses each of the three specific allegations from the detention hearing raised by the respondent.
1. It is clear from a reading of the paragraph at page 10 of the detention review decision, that Adjudicator Douglas was merely recapitulating the findings of a different adjudicator made at a previous detention review. The respondent submits that in any event, given the evidence before Adjudicator Douglas, it was not inaccurate to characterize the applicant as a fugitive from justice: he had been charged with serious crimes in the Philippines and a warrant for his arrest had been issued. Adjudicator Douglas was merely expressing conclusions on the evidence before her in the course of her duties. The respondent submits the decisions of Arthur v. Canada (Minister of Employment and Immigration), [1993] 1 F.C. 94 (F.C.A.) and Nord-Deutsche Versicherungs Gesellschaft v. R., [1968] 1 Ex.C.R. 443 (Can.Ex.Ct.) in support of this argument.
In Arthur, supra the applicant had argued that having previously formed an opinion on the general question of his credibility at a detention review, the same adjudicator should not hear an application involving a similar issue at a credible basis hearing. In dismissing the application, MacGuigan J.A. writing for the Court concluded at page 106 "I am unable to detect any predisposition by the adjudicator on the applicant's general credibility such as to amount to prejudgement of the result of the second hearing."
In Gesellschaft, supra Jackett P. similarly found that there can be no
apprehension of bias on the part of a judge merely because he has, in the course of his judicial duties, expressed his conclusion as to the proper findings on the evidence before him, having given full consideration to the parties' submissions with regard thereto.
2. The respondent argues that Adjudicator Douglas' accurate statement that the applicant could have applied for landing after his credible basis hearing in April of 1991 is inconsequential and innocuous. The respondent submits the applicant has failed to show how this comment could possibly raise a reasonable apprehension of bias at the applicant's inquiry.
3. The respondent submits Adjudicator Douglas was not impugning counsel's "integrity and credibility" when she accurately stated the following in response to counsel's submissions at the detention review:
It has been submitted that he did not proceed to a full hearing before the Refugee Board because he did not so indicate. Counsel, on the other hand, is alleging that his client has been denied this process by the Immigration Department. He did refer to documents in his possession that would support his position but these documents were not presented. It must also be noted that if, being determined to be a Convention Refugee seem to be the only certainty that would prevent Mr. Pacificador from being returned to the Philippines, that irrespective of whether or not the Immigration Department are at fault, that Counsel and Mr. Pacificador would move to do everything possible to have the matter heard. It has taken Counsel in excess of 6 years to realize this. It simply makes no sense to take such a forceful position now, attributing blame when he too could have acted on this matter much earlier. (emphasis added)
The respondent submits Adjudicator Douglas was merely responding to the applicant's inaccurate allegations and that furthermore, there is no evidence whatever that the determination at the inquiry was somehow influenced by her alleged opinion of counsel.
[23] B. Answer to the applicant's disclosure arguments
The respondent submits Adjudicator Douglas properly dismissed the
applicant's motion to compel disclosure. The applicant's motion was brought after an identical request under the Access to Information Act, supra and the Privacy Act, supra was denied by the two offices of the Department of Justice and the Public Rights Administrative Directorate of the Department of Citizenship and Immigration. These bodies determined that the documents requested by the applicant were protected by the solicitor and client privilege and/or other public interest immunity. Therefore, they were exempt from disclosure under the grounds specified in the two above acts.
[24] The applicant did not exercise his right under the relevant legislation to
appeal these decisions to the Information Commissioner of Canada. Thus, the respondent argues the applicant's motion was in actual fact, a back-door attempt to circumvent the statutory mode of appeal provided for under the Access to Information Act. The respondent further emphasizes that the majority of documents sought by the applicant are solicitor and client privileged and protected from disclosure; a privilege, in the respondent's submission, now recognized by the Supreme Court of Canada as not only a substantive rule of law, but also as a fundamental civil and legal right.
[25] Moreover, the respondent submits Adjudicator Douglas correctly held that
R. v. Creswell, [1998] B.C.J. No. 1770, April 1, 1998 (B.C.S.C.) is a criminal case and has no applicability to the case at bar. The respondent argues that immigration inquiries have always been held to be civil proceedings where the person subject to deportation, be he a refugee claimant or otherwise, does not enjoy the same rights as a criminal defendant. Additionally, unlike the facts in Creswell, supra, there was no evidence of illegal activities in bringing the applicant to inquiry in the case at bar.
[26] There was no erroneous refusal of jurisdiction in the respondent's
submission. In contrast to a Superior Court judge, an adjudicator's jurisdiction is derived from the Immigration Act and Regulations, thus the adjudicator has no inherent jurisdiction. The respondent submits the exercise of the powers granted to an adjudicator under subsection 80.1(2) of the Act must, as a consequence, be understood to be circumscribed by the statutory scheme within which an adjudicator operates.
[27] Finally, the respondent submits Adjudicator Douglas' ruling clearly
implies that the applicant's motion was nothing but a fishing expedition and bereft of a plausible factual basis.
[28] C. Answer to the applicant's constitutional arguments
(a) Infringement of the applicant's right to life, liberty or security of the person
The respondent submits the applicant's arguments that his section 7
Charter rights were engaged or somehow violated by the holding of an inquiry based on subparagraph 19(1)(c.1)(ii) are without merit. The respondent submits that the Federal Court of Appeal held in Hoang v. Canada (Minister of Employment and Immigration) (1990), 13 Imm. L.R. (2d) 35 (F.C.A.), Canepa v. Canada (Minister of Employment and Immigration), [1992] 3 F.C. 270 (F.C.A.) and Barrera v. Canada (Minister of Employment and Immigration) (1992), 18 Imm. L.R. (2d) 81 (F.C.A.) that the liberty interest does not protect against deportation from Canada. The respondent argues these pronouncements that deportation is not a deprivation of liberty entirely disposes of the applicant's contention of an alleged violation of section 7 of the Charter.
[29] Secondly, the respondent submits the particular country to which the
applicant may eventually be removed was not at issue at the inquiry, as an adjudicator therein lacks jurisdiction to determine or consider the place to which an applicant will be deported. The applicant's arguments are therefore premature. The respondent submits that it is well established that the Government of Canada does not have a duty to refrain from acts which might hypothetically interfere with an individual's life, liberty and security of the person. The respondent submits that there is a substantive difference between the making of a deportation order by an adjudicator, and the actual execution of that order. In the case at bar, the deportation order issued to the applicant is conditional pending the outcome of his refugee claim, and his country of removal has not yet been determined. The mere holding of an inquiry to determine whether the applicant falls within an inadmissible category and the consequent issuance of a deportation order, in the respondent's submission, neither engages nor violates his Charter rights.
[30] Finally, the respondent submits subparagraph 19(1)(c.1)(ii) was enacted to
protect Canadians from persons believed to have committed serious crimes outside Canada, but who have not yet been convicted for their crimes (e.g., they have fled before being brought to justice). The respondent argues the following statements at pages 733 - 734 of the Supreme Court decision in Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711 in respect to subparagraph 27(1)(d)(ii) of the Act apply mutatis mutandis to subparagraph 19(1)(c.1)(ii):
The distinction between citizens and non-citizens is recognized in the Charter. While permanent residents are given the right to move to, take up residence in, and pursue the gaining of a livelihood in any province in s. 6(2), only citizens are accorded the right "to enter, remain in and leave Canada" in s. 6(1).
Thus Parliament has the right to adopt an immigration policy and to enact legislation prescribing the conditions under which non-citizens will be permitted to enter and remain in Canada. It has done so in the Immigration Act . . .
One of the conditions Parliament has imposed on a permanent resident's right to remain in Canada is that he or she not be convicted of an offence for which a term of imprisonment of five years or more may be imposed. This condition represents a legitimate, non-arbitrary choice by Parliament of a situation in which it is not in the public interest to allow a non-citizen to remain in the country. (emphasis added)
[31] (b) Answer to the applicant's "reasonable grounds to believe" and
"Presumption of innocence" arguments
The respondent submits that the standard of proof of "reasonable grounds to believe" is procedurally and substantively fair and does not breach section 7 of the Charter. The respondent argues the applicant's arguments proceed from a false premise by missing the basic difference between deportation proceedings and criminal proceedings.
[32] The respondent submits the provisions in the Act that make the subject of
an immigration inquiry a compellable witness have withstood a Charter challenge under section 7 and subsection 11(c). Thus, the respondent argues the position of the applicant is not analogous to a criminal defendant who enjoys the "presumption of innocence." Moreover, the respondent argues the standard of proof in criminal proceedings does not apply to immigration proceedings. In Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433 (F.C.A.), it was held that "reasonable grounds to believe" means something between mere suspicion and a balance of probabilities. While this does not require a high standard of proof, the respondent submits that as it is the safety of the Canadian public that is at stake, and that no person other than a Canadian citizen has a right to enter and remain in Canada, the standard of "reasonable grounds to believe" in no manner constitutes deprivation of life, liberty or security of the person. Nor does it violate the principles of fundamental justice in the respondent's submission.
[33] (c) Answer to applicant's alleged "retrospective application" argument
The respondent submits that MacKay J. rejected the same arguments made by the applicant concerning alleged retrospective application of subparagraph 19(1)(c.1)(ii) in McAllister v. Canada (Minister of Citizenship and Immigration), [1996] 2 F.C. 190 (F.C.T.D.).
[34] Secondly, the respondent submits that the applicant's arguments are
illogical. The respondent submits that under the transitional provision in question (section 109), where an application, proceeding or matter has been commenced before the coming into force of the new provisions (that is, February 1, 1993), and is still pending after this date, the new provisions apply in respect of such application, proceeding or matter. The respondent submits that the applicant appears to be saying that because his inquiry commenced in 1998, it was not pending and therefore the new provisions do not apply. The respondent argues this cannot be correct as, if the proceeding at issue did not even commence prior to the coming into force of the new provisions, then clearly it is the new provisions that apply. Alternatively, if the applicant is saying that it is his refugee claim (which has not yet been determined) that is at issue, then such proceedings were clearly pending on February 1, 1993. Therefore, in the respondent's submission, the new provisions must apply pursuant to section 109.
[35] (d) Answer to the applicant's alleged "disguised extradition" argument
The respondent submits there was no basis upon which Adjudicator Douglas could possibly conclude that the applicant's inquiry was an extradition in disguise. The respondent argues that in order to succeed on an argument of disguised extradition, the applicant must establish that Canadian immigration authorities are attempting to extradite him without any legitimate or lawful purpose and that the immigration proceedings are essentially a sham.
[36] Adjudicator Douglas, in the respondent's submission, correctly found that
there was nothing of consequence in the evidence to negate the proposition that the purpose of the inquiry was to remove the applicant because he is inadmissible (and his presence is not conducive to the public good). Nor in the respondent's submission, was there anything to indicate that the purpose of the proceedings was to surrender the applicant as a fugitive criminal to a state because that state asked for him. Adjudicator Douglas did not accept the applicant's interpretation of events and comments of immigration officials, and correctly found that he had not discharged the onus on him.
[37] D. Answer to the applicant's arguments on the merits
The respondent submits there was accurate evidence before Adjudicator Douglas upon which she could find reasonable grounds to believe that he came within subparagraph 19(1)(c.1)(ii) of the Act. The respondent submits that the words "reasonable grounds to believe" create a very low threshold test and that the Federal Court of Appeal has held that it creates a standard of proof which is well below that required under either the criminal law or the civil law.
[38] The respondent submits Adjudicator Douglas applied the correct test to the
evidence before her, and took note of the evidence of the documents dated October 13, 1986 charging the applicant with murder, frustrated murder and attempted murder in the Philippines, as well at the warrant for his arrest dated January 8, 1987. Adjudicator Douglas considered this evidence credible and trustworthy in the circumstances of this case. The respondent offers the decision of Legault, supra where the Federal Court of Appeal held on very similar facts, that it was open to an adjudicator to find on the basis of documents of this nature that an individual fell within subparagraph 19(1)(c.1)(ii) of the Act.
[39] Finally, in response to the five alleged erroneous findings, the respondent
submits Adjudicator Douglas provided detailed reasons for finding the applicant to not be a credible witness at his inquiry. The respondent submits that the applicant's microscopic parsing of certain minor findings in Adjudicator Douglas' reasons fail to demonstrate any error, let alone an error that was central to the decision.
Relevant Statutory Provisions
[40] The relevant sections of the Immigration Act are as follows:
| 2.(1) "Convention refugee" means any person who (a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,(i) is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or (ii) not having a country of nationality, is outside the country of the person's former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and (b) has not ceased to be a Convention refugee by virtue of subsection (2), but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act; |
2.(1) « réfugié au sens de la Convention » Toute personne_: a) qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques_: (i) soit se trouve hors du pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de ce pays, (ii) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ou, en raison de cette crainte, ne veut y retourner; b) qui n'a pas perdu son statut de réfugié au sens de la Convention en application du paragraphe (2). Sont exclues de la présente définition les personnes soustraites à l'application de la Convention par les sections E ou F de l'article premier de celle-ci dont le texte est reproduit à l'annexe de la présente loi. |
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| 19. (1) No person shall be granted admission who is a member of any of the following classes: . . . (c.1) persons who there are reasonable grounds to believe (i) have been convicted outside Canada of an offence 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, or (ii) have committed outside Canada an act or omission that constitutes 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, . . . (h) persons who are not, in the opinion of an adjudicator, genuine immigrants or visitors; . . . (2) No immigrant and, except as provided in subsection (3), no visitor shall be granted admission if the immigrant or visitor is a member of any of the following classes: . . . (c) other members of a family accompanying a member of that family who may not be granted admission or who is not otherwise authorized to come into Canada; or |
19. (1) Les personnes suivantes appartiennent à une catégorie non admissible_: . . . c.1) celles dont il y a des motifs raisonnables de croire qu'elles ont, à l'étranger_: (i) soit été déclarées coupables d'une infraction qui, si elle était commise au Canada, constituerait une infraction qui pourrait être punissable, aux termes d'une loi fédérale, d'un emprisonnement maximal égal ou supérieur à dix ans, sauf si elles peuvent justifier auprès du ministre de leur réadaptation et du fait qu'au moins cinq ans se sont écoulés depuis l'expiration de toute peine leur ayant été infligée pour l'infraction, (ii) soit commis 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, d'un emprisonnement maximal égal ou supérieur à dix ans, sauf si elles peuvent justifier auprès du ministre de leur réadaptation et du fait qu'au moins cinq ans se sont écoulés depuis la commission du fait; . . . h) celles qui, de l'avis d'un arbitre, ne sont pas de véritables immigrants ou visiteurs; . . . (2) Appartiennent à une catégorie non admissible les immigrants et, sous réserve du paragraphe (3), les visiteurs qui_: . . . c) accompagnent un membre de leur famille qui ne peut être admis ou n'est pas par ailleurs autorisé à entrer au Canada; |
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| 27. (2) An immigration officer or a peace officer shall, unless the person has been arrested pursuant to subsection 103(2), 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 person in Canada, other than a Canadian citizen or permanent resident, is a person who (a) is a member of an inadmissible class, other than an inadmissible class described in paragraph 19(1)(h) or 19(2)(c); |
27. (2) L'agent d'immigration ou l'agent de la paix doit, sauf si la personne en cause a été arrêtée en vertu du paragraphe 103(2), faire un rapport écrit et circonstancié au sous-ministre de renseignements concernant une personne se trouvant au Canada autrement qu'à titre de citoyen canadien ou de résident permanent et indiquant que celle-ci, selon le cas_: a) appartient à une catégorie non admissible, autre que celles visées aux alinéas 19(1)h) ou 19(2)c); |
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| 32.1(4) Where an adjudicator decides that a claimant who is the subject of an inquiry is a person described in subsection 27(2), the adjudicator shall, subject to subsection (5), make a conditional deportation order against the claimant. |
32.1(4) S'il conclut que le demandeur de statut faisant l'objet d'une enquête relève d'un des cas visés par le paragraphe 27(2), l'arbitre, sous réserve du paragraphe (5), prend une mesure d'expulsion conditionnelle à son endroit. |
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[41] The relevant sections of the Constitution Act, 1982, being Schedule B to
the Canada Act, 1982 (U.K.), 1982, C. 11 are as follows:
| 52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. (2) The Constitution of Canada includes: (a) the Canada Act 1982, including this Act; (b) the Acts and orders referred to in the schedule; and (c) any amendment to any Act or order referred to in paragraph (a) or (b). (3) Amendments to the Constitution of Canada shall be made only in accordance with the authority contained in the Constitution of Canada. |
52.(1) La Constitution du Canada est la loi suprême du Canada; elle rend inopérantes les dispositions incompatibles de toute autre règle de droit. (2) La Constitution du Canada comprend: a) la Loi de 1982 sur le Canada, y compris la présente loi; b) les textes législatifs et les décrets figurant à l'annexe; c) Les modifications des textes législatifs et des décrets mentionnés aux alinéas a) ou b). (3) La Constitution du Canada ne peut être modifiée que conformément aux pouvoirs conférés par elle. |
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[42] Issues
1. Whether the adjudicator was biassed because she previously decided issues in the inquiry adversely to the applicant in a previous detention review hearing, and whether her refusal to recuse herself from the inquiry constitutes a reviewable error.
2. Whether the adjudicator erred in law in holding that subparagraph 19(1)(c.1)(ii) requires a "very low" standard of proof of a foreign criminal offence.
3. Whether the adjudicator's decision that she lacked jurisdiction under subsection 80.1(2) of the Immigration Act to order disclosure of material being sought by the applicant was an erroneous "refusal of jurisdiction".
4. Whether the adjudicator's decision in the alternative that the material being sought was irrelevant was based on an erroneous finding of fact made in a perverse or capricious manner.
5. Whether the section of the Immigration Act under which the inquiry was held, subparagraph 19(1)(c.1)(ii) is unconstitutional vis-à-vis the applicant as it violates his rights guaranteed by section 7 of the Canadian Charter of Rights and Freedoms.
6. Whether in rendering her decision on the merits, the adjudicator erred in law or based her decision on erroneous findings of fact made in a perverse or capricious manner or without regard for the material before her.
Analysis and Decision
[43] Issue 1
Whether the adjudicator was biassed because she previously decided issues in the inquiry adversely to the applicant in a previous detention review hearing, and whether her refusal to recuse herself from the inquiry constitutes a reviewable error.
At the commencement of the hearing before any evidence was heard, the applicant brought a motion for the adjudicator to recuse herself on the basis that she was biassed or that there was a reasonable apprehension that she was biassed. The applicant grounded his motion on the following:
7. The adjudicator's decision made reference to the applicant as "fugitive from justice in the Philippines".
8. The adjudicator blamed the applicant for not moving his Convention refugee claim forward to a hearing sooner.
9. The adjudicator stated "It has taken counsel in excess of six years to realize this".
In the decision, the adjudicator appears to have taken the view that the applicant was complaining about bias existing because she had earlier adjudicated at his detention hearing and was now hearing another matter involving the applicant. As I understood the matter, that is not what the applicant was arguing but he was arguing that certain comments made by the adjudicator at the previous hearing resulted in either bias or an apprehension of bias to exist in relation to the adjudicator.
[44] The test used to determine whether a reasonable apprehension of bias exists
was stated by DeGrandpre J. in Committee for Justice & Liberty v. National Energy Board (1976), 68 D.L.R. (3d) 716 (S.C.C.) at page 735:
What would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that [the decision maker], whether consciously or unconsciously, would not decide fairly?
[45] In the present case, the adjudicator at the earlier detention hearing based
her decision to continue the applicant's detention on the ground that he was "not likely to appear for the continuation of his inquiry". Basically, the adjudicator found that the applicant would not appear for the continuation of his hearing as a negative decision at the hearing would result in a removal order being made against him.
[46] It would appear to me that the adjudicator adopted and used the comments
of the other adjudicator with respect to the applicant being "a fugitive from justice in the Philippines" in reaching her decision to continue his detention at the earlier detention hearing. This statement is found in her decision under the heading "not likely to appear for the continuation of his inquiry". It is also noted that the adjudicator used the present tense and said "he is a fugitive . . .". My reading of the adjudicator's decision is that she did form an opinion that the applicant was a fugitive from justice in the Philippines. This would indicate that the adjudicator must have believed that and formed the opinion that the charges against the applicant were bona fide and not put forward for political reasons. This would indicate a possible prejudgment with respect to the very issues to be determined at the inquiry. When coupled with the remark about the applicant's counsel, I am of the opinion that an apprehension of bias exists with respect to the adjudicator, therefore, the adjudicator should have recused herself from sitting on the inquiry. The decision of the adjudicator is hereby set aside and the inquiry should be reheard before a different adjudicator.
[47] I must make it abundantly clear that actual bias or an apprehension of bias
does not exist on the part of an adjudicator merely because the adjudicator sat on a previous matter involving the same applicant.
[48] Because of my finding on Issue 1, I need not decide the remaining issues
raised by the applicant.
[49] Counsel for the parties will be provided with an opportunity to make a request for certification of a serious question of general importance. Counsel for the applicant shall file written representations, if any, on or before May 9, 2001 concerning the certification of a serious question. Counsel for the respondent shall file a written response, if any, on or before May 16, 2001.
"John A. O'Keefe"
J.F.C.C.
Toronto, Ontario
May 2, 2001
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5-00
STYLE OF CAUSE: RODOLFO PACIFICADOR
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: WEDNESDAY, NOVEMBER 29, 2000
REASONS FOR ORDER BY: O'KEEFE J.
APPEARANCES: Mr. Douglas Lehrer and
Mr. Wes Wilson
On Behalf of the Applicant
Mr. Stephen H. Gold
On Behalf of the Respondent
SOLICITORS OF RECORD: VanderVennen Lehrer
45 Saint Nicholas Street
Toronto, Ontario
M4Y 1W6
On Behalf of the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
On Behalf of the Respondent
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20010502
Docket: IMM-5-00
BETWEEN:
RODOLFO PACIFICADOR
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER