Date: 20040220
Docket: IMM-1185-03
Citation: 2004 FC 260
BETWEEN:
ANGHEL VLAD
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
MACTAVISH J.
[1] Why would anyone pay a police officer a $5 bribe to get out of paying a 75 ¢ fine? That is the question that Anghel Vlad poses in support of his contention that he was wrongfully convicted of bribery in his home country of Romania. Rather than being a criminal, he says that he is the victim of politically motivated persecution.
[2] The Refugee Protection Division of the Immigration and Refugee Board rejected Mr. Vlad's claim that he had been framed by the Romanian authorities, finding that what he feared was prosecution, not persecution. Mr. Vlad seeks judicial review of that decision, alleging that the Board denied him a fair hearing by constantly interrupting his testimony, and by preventing him from properly presenting his case. He further contends that the Board's findings were perverse or capricious, and were made without regard for the evidence before it.
BACKGROUND
[3] Mr. Vlad is a citizen of Romania. In 1991, he began working as a police traffic officer for the Ministry of Internal Affairs. In the summer of 1996, Mr. Vlad was working in the northern part of Bucharest, when a new nightclub opened in the area. According to Mr. Vlad, it was well-known that the establishment was run by the mafia. The club was frequented by a number of powerful and well-connected people. Mr. Vlad had a number of run-ins with the club owner. He also had run-ins with club patrons, who would leave the club in an intoxicated state, and then commit a variety of driving offenses. After Mr. Vlad charged these individuals, they would then use their influence to try to get the charges against them dismissed.
[4] Mr. Vlad's diligence did not go unnoticed. In 1997 or 1998, he says that his direct superiors advised him to "use discretion" when he checked cars, and to "close his eyes" when dealing with high-ranking people.
[5] On March 22, 1998, Mr. Vlad and two colleagues were on duty in an area close to the nightclub. Around 2 o'clock in the morning, Mr. Vlad observed two cars coming from the direction of the club. Both cars had defective headlights. Mr. Vlad stopped the second car, while his two colleagues stopped the first car. Mr. Vlad asked the driver of the car for his documents, but the driver claimed that he only had his personal identification with him, and that the rest of his documents were at home. Mr. Vlad told the driver to get the headlight repaired as soon as possible, and let the driver go. Had he decided to ticket the driver, the fine for driving with a broken headlight would have been the equivalent of 75 ¢ Cdn.
[6] Approximately 15 or 20 minutes later, the car came back and waited for Mr. Vlad on the other side of the street. As Mr. Vlad approached the car, the occupants got out of the car and thanked him for not ticketing them. One occupant hinted about offering Mr. Vlad something, and stretched out his hand. Mr. Vlad shook the individual's hand and saluted him. A few minutes later, Mr. Vlad stopped another car and the four men inside shouted "Do not move! The military prosecutor's office!". The men examined Mr. Vlad, his clothing and the area around him, looking for money. The individual who claimed to have bribed Mr. Vlad, who appears to have been an undercover police officer, said that after Mr. Vlad was handed the money, he put it in his pocket. Although the officers found no money on Mr. Vlad, one claimed to have found the equivalent of $5 Cdn. behind the front left wheel of Mr. Vlad's police vehicle. At this point, Mr. Vlad realized that he was being framed.
[7] Although the money was evidently coated with a phosphorescent powder, no traces of the powder were subsequently found on Mr. Vlad's clothes. Mr. Vlad's hands evidently showed traces of the powder, which he says resulted from shaking the hand of the driver of the first car that he stopped.
[8] Mr. Vlad was charged with bribery, and was arrested. He asked to see a lawyer, but the military prosecutor refused. Mr. Vlad says that he was only allowed to see a lawyer eight days after his arrest.
[9] On April 8, 1998, Mr. Vlad was released pending trial. The trial took place on May 25, 1998. According to Mr. Vlad, the trial lasted only 25 minutes. Despite the fact that no witnesses were called, Mr. Vlad was found guilty. He was subsequently sentenced to 3 years in jail, less the25 days already served. Mr. Vlad appealed twice, including an appeal to the Supreme Court of Justice of Romania, but to no avail. He then submitted a memorandum to the Office of the President of Romania requesting a pardon, but got no response.
[10] Mr. Vlad then went to France, where, he says, he hoped to file a complaint with what I understand to be the European Court of Justice. However, he was unable to do so as a result of the language barrier and other similar problems. After a 4-month stay in Paris, Mr. Vlad went to see his sister in Austria. Mr. Vlad's sister helped him obtain a French passport in order to come to Canada. He arrived in Toronto on June 24, 2000, and immediately made a refugee claim.
DECISION OF THE BOARD
[11] The Board determined that the purpose of the refugee hearing was not to re-try Mr. Vlad's criminal case in Romania. Rather, it was to find out whether his allegation of being framed was credible. The Board found that Mr. Vlad's explanation of why he did not simply ask for a transfer or re-assignment when he had problems relating to the nightclub was not credible. The Board also found that it was not reasonable that the military prosecutor's office would frame someone for bribery, rather than simply asking Mr. Vlad's superior to have him transferred instead.
[12] The Board further found that it was not credible that a number of different judges, prosecutors and courts would all conspire to frame Mr. Vlad. The documentary evidence before the Board showed that corruption is a systemic problem within the justice system in Romania. The Board concluded that, in all likelihood, Mr. Vlad was prosecuted as an example to deter other police officers from taking bribes. The Board found that neither the treatment that Mr. Vlad received, nor the judicial process that he underwent were consistent with or indicative of a process used to frame someone.
[13] The Board also rejected Mr. Vlad's explanation as to why he did not pursue a complaint with the European Court as not credible.
[14] The Board also found that for Mr. Vlad to be able to demonstrate that he had a subjective fear of persecution, he would have to show that he was the victim of corruption. The Board found that Mr. Vlad was a fugitive from justice, and not a Convention refugee.
[15] Finally, the Board held that there was no documentary evidence to support Mr. Vlad's contention that police officers have been mistreated by other inmates when returned to Romania to serve time. Although there was documentary evidence that indicated that prison conditions are harsh, and that excessive force is used by the police, there was no documentary or other evidence dealing with the treatment of former police officers in Romanian prisons. The Board also considered the fact that Mr. Vlad had not been mistreated during his 25 days of pre-arrest incarceration in rejecting his claim that he would be mistreated if he were returned to Romania.
ISSUES
[16] Mr. Vlad raises two issues on this application:
1. Did the Board fail to observe a principle of natural justice, procedural fairness or any other procedure that it was required by law to observe? and
2. Did the Board base their decision on erroneous findings that were made in a perverse or capricious manner or without regard for the material before them?
STANDARD OF REVIEW
[17] The first issue raised by Mr. Vlad is one of procedural fairness. Questions of procedural fairness are reviewed against a standard of correctness: Ha v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 174.
[18] The second issue challenges findings of fact made by the Board. The standard of review in this regard is patent unreasonableness: Augebor v. Minister of Employment and Immigration, [1993] F.C.J. No. 732 (C.A.).
[19] With this understanding of the standard of review, I now turn to the issues raised by Mr. Vlad.
ANALYSIS
Did the Board fail to observe a principle of natural justice, procedural fairness or any other procedure that it was required by law to observe?
[20] Mr. Vlad contends that he was denied a fair hearing as a result of the actions of the Board members. There are two aspects to Mr. Vlad's argument on this issue. First, he says that his right to present his case was inhibited by constant interruptions from the Board members. The Board's questions were not merely attempts to clarify his testimony, Mr. Vlad says, but instead demonstrated that the Board had jumped to conclusions about the veracity of his story and descended into the arena, commandeering the entire examination. Further, Mr. Vlad says, some of the Board's questions were so convoluted as to be impossible to answer.
[21] Mr. Vlad also submits that the Board prevented him from leading evidence with respect to the political motivation behind his trial, thus denying him the opportunity to properly present his claim. While Mr. Vlad was not seeking to have his criminal charge re-tried by the Immigration and Refugee Board, it was essential to his refugee claim that the Board fully understand the political considerations underlying his prosecution.
[22] The respondent states that the Board's questionning did not amount to badgering, but rather represented an attempt by the Board to clarify and understand Mr. Vlad's testimony. Mr. Vlad's testimony was difficult to understand, and was complicated by the fact that he testified with the assistance of an interpreter. The respondent submits that the Board does not err when it engages in an energetic exercise of questioning in an attempt to clear up inconsistencies in the evidence.
[23] There is no doubt that the job of a member of the Refugee Protection Division is a difficult one. The Board deals with a very significant volume of cases. Members are required to listen to tales of human misery on a daily basis, sometimes of unimaginable proportions. Their task is complicated by the fact that many claimants speak neither English nor French, and must testify with the assistance of an interpreter. Many claimants suffer from psychological trauma, which makes it more difficult for them to get their story across. Further, claimants come from a range of different ethnic backgrounds, each with their own cultural norms and attributes.
[24] Recognizing the challenges that face the Board, it may sometimes be necessary for Board members to take a somewhat active role in refugee hearings. As the Court of Appeal noted in Rajaratnam v. Canada (M.E.I.) [1991] F.C.J. No. 1271, Board interventions that amount to "an energetic exercise in attempting to clear up some inconsistencies in the evidence" will not necessarily result in an unfair hearing. If, at the conclusion of the examinations conducted by an applicant's counsel and the Refugee Protection Officer, a Board member has concerns about a claimant's testimony, the member is entitled to question the refugee applicant in order to clarify the situation.
[25] Regrettably, what happened in this case goes well beyond what was contemplated in Rajaratnam. Mr. Vlad's testimony takes up 118 pages of transcript. Questions or comments from the Board appear on 111 of those pages. The vast majority of these interventions go beyond benign questions, such as asking to have a question rephrased or an answer repeated, and come much closer to what would normally be characterized as cross-examination.
[26] The Board did not reserve its questions to the end of Mr. Vlad's examination. Rather, the Board's questions were interspersed throughout his examination in chief and cross-examination. Mr. Vlad's examination and cross-examination were frequently derailed, as Board members interrupted both Mr. Vlad's counsel and the Refugee Protection Officer, in order to pursue their own line of questions.
[27] While Mr. Vlad's testimony may have been somewhat confusing, if the Board's interventions were intended to clarify the situation, the convoluted form of the Board's questions just added to the confusion. By way of example, at one point in the hearing Mr. Vlad was endeavouring to explain why the police went to the trouble of framing him, rather than just transferring him to a different area. Clearly unsatisfied with Mr. Vlad's response, the Chairperson stated:
Sir, again let me ask you. I have to put to you a question that seems to be not plausible to you and ask for an explanation, so please forgive us for asking you questions over and over again.
Still in the same context, why would the prosecutor from the military, who has powers to ask your boss to switch your assignment ---
I'm not finished with my question.
--- which is a reasonable expectations that they could do, especially in your country, and based on the country conditions that you provided, that it appears that there is a lot of bribery, there is a lot of abuse in the police department to the point that there are now investigations conducted and so on?
Its reasonable to expect them to have done something like that rather than going through setting you up, going through court?
To which Mr. Vlad responded:
But the prosecutor doesn't have the power to move me, it's two different departments.
The Chairperson then tried again:
Sir, you're not answering my question . My question to you is - please listen carefully.
The prosecutor from the military, which actually happens that the police department is in conjunction with the military jurisdiction when it comes to investigation matters, according to the ... report, okay, it's reasonable to expect the prosecutor from the military who is a person in power, in your country condition, which is bribery is very common, police are involved in all kinds of abuses, that prosecutors from the military will tell your captain, switch Vlad's assignment, send him somewhere else in the city.
Why would they take the chance of setting you up, having to chance to send you to the courts? (sic throughout)
[28] Mr. Vlad then repeated his assertion that a military prosecutor had no jurisdiction over transfer decisions within the police force.
[29] I am also satisfied that the Board unfairly limited Mr. Vlad's ability to present his case by refusing to allow him to explain what he viewed as the political motivation behind his prosecution in Romania. In this regard, I adopt the comments of Justice Pinard in Canada (M.C.I.) v. Dhaliwal-Williams [1997] F.C.J. No. 567, where he stated that "It is...well established that procedural fairness means at a minimum allowing each side to present its case and providing both parties with the opportunity to be heard".
[30] While the Board was correct in asserting that its mandate was not to re-try Mr. Vlad in Canada, nevertheless, his assertion that he had been the victim of a politically motivated frame-up went to the very heart of his case. As such, he should have been afforded the opportunity of explaining his claim. Having stated that its mandate was not to re-try Mr. Vlad, the Board then went on to dismiss his refugee claim on the basis that his story of having been framed was not plausible. Having denied Mr. Vlad the opportunity of explaining what happened to him, this was fundamentally unfair.
[31] As a consequence, the decision of the Board should be set aside, and the matter remitted to a differently constituted panel for redetermination. In light of my conclusions on the first ground, it is not necessary to address Mr. Vlad's arguments relating to the Board's credibility findings.
CERTIFICATION
[32] Neither party has suggested a question for certification, and accordingly none will be certified.
O R D E R
1. For the reasons set out above, this application is allowed, and Mr. Vlad's refugee claim is remitted to a differently constituted panel for reconsideration; and
2. No serious question of general importance is certified.
"Anne L. Mactavish"
Judge
OTTAWA
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20040220
Docket: IMM-1185-03
BETWEEN:
ANGHEL VLAD
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER and ORDER
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1185-03
STYLE OF CAUSE:
ANGHEL VLAD v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: February 12, 2004
ORDER AND REASONS FOR ORDER:
Mactavish J.
DATED: February 20, 2004
APPEARANCES:
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FOR THE APPLICANT
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FOR THE RESPONDENT |
SOLICITORS OF RECORD:
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Green and Spiegel Barrister & Solicitor Toronto, Ontario |
FOR THE APPLICANT |
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Toronto, Ontario |
FOR THE RESPONDENT |