Date: 20030127
Docket: IMM-5261-01
Ottawa, Ontario, this 27th day of January, 2003
PRESENT: THE HONOURABLE MR. JUSTICE MACKAY
BETWEEN:
BENIAMIN DRAGOSIN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
[1] This is a judicial review, under s. 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, as amended, of an exclusion order against the applicant, issued on November 5, 2001 by an immigration officer at Halifax, Nova Scotia. The application was heard at Halifax with a similar application of Gabriel Patrasc, who arrived at Halifax at the same time as, and in similar circumstances to those concerning Mr. Dragosin.
[2] The applicant is a 23 year old man with Romanian citizenship who arrived in Canada at the port of Halifax on November 3, 2001, as a stowaway on a cargo vessel out of Spain. He had no passport or immigrant visa with him. He claimed a Romanian passport issued to him had been left in Spain.
[3] Upon his arrival ashore in Halifax, the applicant was taken by a member of a local church to the Citizenship and Immigration office, which was closed, and then to the local police. The police arranged for an interview with an immigration officer the same day.
[4] At this interview, CIC officers completed a Stowaway Questionnaire and conducted a lengthy interview with the applicant. The applicant states in his affidavit that during this first interview, he indicated to the CIC officers that he wished to have legal counsel, and a CIC officer told him that legal counsel would be arranged for him. At the conclusion of the interview, the applicant was ordered detained at the Halifax Correctional Centre by order of a CIC officer in accord with the provisions of s-s. 103.1(a) of the Immigration Act, R.S.C. 1985, c. I-2, as amended (the "IA").
[5] On November 5, 2001 the applicant was again interviewed by CIC officers. The applicant states in his affidavit that he had not at that time, had contact with any counsel. He also indicates that he reiterated his earlier statements regarding his desired access to counsel and his fear about returning to Romania where he had been called for compulsory military service. The applicant's affidavit also states that he claimed at this meeting that he had come to Canada with the intention of seeking refugee status and he feared to return to Romania.
[6] By affidavit in support of the respondent's position, CIC Officer Connors states that the applicant did not say that he feared persecution on any of the enumerated grounds required for refugee status, and that at no time did she believe the applicant was seeking Convention refugee status. In the handwritten notes exhibited with her affidavit, notes made during the two interviews with the applicant, there are references noting that the applicant repeatedly stated that life would be better for him in Canada, and that he feared mandatory military service in the Romanian army.
[7] Following the interview on November 5th, Officer Connors issued the exclusion order regarding the applicant stating that he did not meet requirements of s-s. 19(2) of the IA as he had neither a valid passport nor an immigrant visa.
[8] The applicant secured legal counsel at the last minute before his detention review hearing on November 8, 2001. In his affidavit, he states that communication was difficult during the detention hearing conducted by telephone conference, since the phone connections were poor and voices repeatedly cut out. Nonetheless, applicant's counsel did state for the record the applicant's concerns regarding the persecution he would face if he were returned to Romania, and his concerns regarding CIC's failure to facilitate legal counsel for the applicant despite his requests during the course of his earlier interviews.
[9] There are two issues raised regarding the issuance of the exclusion order: (1) whether the applicant was improperly denied access to legal counsel to deal with the interviews and to prepare for the detention hearing and (2) whether the immigration officers erred in not properly considering the applicant's expressed fear if he were forced to return to Romania as the basis of a Convention refugee claim.
[10] A subsidiary issue is whether the new Immigration and Refugee Protection Act, S.C. 2001, c.-27, (the "IRPA"), which came into force on June 28, 2002, applies to this case or whether it is determinable under the prior Immigration Act, the IA, applicable at the time of the exclusion order and filing of the application for judicial review. Counsel for the parties indicate there is no meaningful distinction between the two Acts in the sense that judicial review under both the IA and the IRPA is substantially the same process, although there are distinctions in procedures for the determination of refugee status under the two Acts. It seems clear from s-s. 348(1) of the IRPA and s. 190 of that Act that this proceeding is governed by the IRPA, but s-s. 348(6) of that Act provides that the lawfulness or validity of a decision made or an act done under the IA is to be determined in accord with provisions of the IA.
Access to Legal Counsel
[11] The applicant argues that while there may be no general right to counsel at a port-of-entry interview with a CIC officer, under s. 10 of the Charter of Rights and Freedoms, Schedule B to the Canada Act 1982 (U.K.) 1982, c. 11 (the "Charter"), a right to counsel is assured for "everyone" on their arrest or detention. That right extends to any person in Canada, regardless of status on the basis of the principle enunciated in Singh v. Canada (Minister of Employment and Immigration), [1985] 1 S.C.R. 177.
[12] By his affidavit, the applicant states that it was implied by one CIC officer that legal counsel would be arranged for him, and it was only when none was forthcoming, after the exclusion order was made, that he took steps of his own. He avers that CIC officers gave the applicant no information about local legal resources such as the Halifax Refugee Clinic or legal aid and that it was only through the advice of another inmate at the Correctional Centre that he was able to find counsel.
[13] The respondent argues that the applicant had no right to counsel during the first interview, relying on Dehghani v. Canada (Minister of Employment and Immigration) [1993] 1 S.C.R. 1053, where Mr. Justice Iaccobucci states clearly that an immigration assessment hearing does not trigger a right to counsel under s.10 of the Charter. It is the respondent's position that the applicant's right to counsel arose only when the exclusion order was granted on November 5th.
[14] The facts in this case differ significantly in two respects from those in Dehghani. In that case the person concerned was examined, then referred to another examiner, and was sent from one area of Pearson Airport to another where he waited for four hours for his secondary examination. Here, Mr. Dragosin waited two days during which he was detained in the regional detention centre. Then he was again examined on November 5th, when the examination was an inquiry by a senior immigration officer.
[15] The IA, by s-s. 12(3) permitted an immigration officer to detain a person once an immigration examination was begun. Subsection 103.1(1) provided for an immigration officer to detain a person where, inter alia, identity of the individual seeking entry into Canada was uncertain. Subsection 103.1(14) required a person detained to be advised of the right to counsel. The applicant further supports his argument by reference to Citizenship and Immigration Canada's Enforcement and Control Manual, which outlined CIC's policy that immigration officers are required to inform persons who are detained of their right to counsel, and to facilitate access to counsel. That same principle has long been recognized where a person is detained on a criminal charge (see R. v. Brydges [1990] 1 S.C.R. 190, and R. v. Posniak [1994] 3 S.C.R. 310).
[16] In my opinion, the applicant's right to counsel in this case arose from the moment he was ordered to be detained at the regional correctional centre. The immigration officers who arranged his detention had the responsibility under s-s. 103.1(14) to provide advice about and to facilitate access to counsel. It was an error in law not to do so, and, without finally determining the matter it appears that failure to facilitate access to counsel in the circumstances was not in accord with the right to counsel upon detention which is assured to everyone in Canada, including the applicant, under s. 10 of the Charter.
The Necessary Elements of a Refugee Claim
[17] The second issue raised concerns the necessary elements of a claim to refugee status and the responsibility of an immigration officer at a port of entry to recognize a claim. That responsibility is acknowledged where there is a claim made that sets out the necessary elements for a refugee claim.
[18] The affidavit evidence of the immigration officer is that there was no claim to refugee status expressed by the applicant in the course of his interviews. That evidence is said to be supported by the officers' notes made at the time of the interviews, exhibited with the officer's affidavit. The affidavit evidence of the applicant is that he came to Canada with the intention of claiming refugee status and that in the course of his interviews he expressed his desire to remain in Canada and his fear of returning to Romania. The expression of fear is reflected in the officers' notes but is there said to be related to fear of compulsory military service in Romania for which the applicant had been called. Both parties refer to specific notations in the officers' notes which they urge are in support of their respective positions.
[19] It may be conceded that the applicant did not express a fear related to particular Convention refugee grounds. At least there is no evidence that he did. In my view it is unnecessary to determine whether in light of the record of the interviews, such as it is, the decision of the officer to issue the exclusion order can be said to be reasonable, or as the applicant urges, patently unreasonable in light of his expressions of fear. Further, it would be inappropriate for the Court to resolve that issue at this stage, if the matter is to be further considered, as the order now issued directs, by a different immigration officer assessing the status of the applicant. That assessment may in part be in consideration of the record and in part be by further examination of the applicant.
[20] In my opinion, the exclusion order of November 5th is to be set aside because of the failure of the officers then concerned to facilitate access to counsel for the applicant after he was ordered detained at the regional correctional facility on November 3, 2001. An order goes so providing and directing reconsideration of the applicant's circumstances by a different immigration officer.
[21] Neither party suggested a question for consideration as a serious question of general importance within s-s. 74(d) of the IRPA. No question is certified.
"W. Andrew MacKay"
J.F.C.C.
Ottawa, Ontario
January 27, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5261-01
STYLE OF CAUSE: BENIAMIN DRAGOSIN
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Halifax, Nova Scotia
DATE OF HEARING: Tuesday, September 17, 2002
REASONS FOR ORDER OF MacKAY J.
DATED: Monday, January 27, 2003
APPEARANCES:
Mr. Lee Cohen
FOR APPLICANT
Ms. Melissa Cameron
FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. M. Lee Cohen
P. O. Box 304, Halifax CRO
Halifax, Nova Scotia
B3J 2N7
FOR APPLICANT
Department of Justice
Suite 1400, Duke Tower
5251 Duke Street
Halifax, Nova Scotia
B3J 1P3
FOR RESPONDENT