Ottawa, Ontario, April 12, 2007
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. Clark-Erskine, the Applicant, is a citizen of the United States who escaped prison in the United States and made a refugee claim six weeks later after he was arrested in Canada for possession of false documents, false passports and stolen property. His refugee claim was rejected by the Immigration and Refugee Board (Board), a critical aspect of the decision is the finding of state protection and the absence of “cruel and unusual treatment and punishment” at the hands of American officials – principally Indiana state corrections officers.
I. BACKGROUND
[2] The Applicant has an extensive criminal record in both the United States and Canada. The crimes are in the nature of fraud and deception. He had been in Indiana State Prison where he claimed he was abused, beaten and denied his psychiatric medicines. The Applicant suffers from epilepsy and bi-polar disorder.
[3] The Board found that the Applicant’s various crimes, including his escape from prison, were not of sufficient gravity to fall within Article 1(F)(b) and therefore not sufficient to exclude his application.
[4] As to prison conditions in the United States, the Board found that U.S. prison conditions can be unacceptably harsh and that mistreatment of prisoners is unfortunately too common. Despite this finding the Board found that adequate state protection was available to him.
[5] The Board went on to find that, in respect of the s. 97 claim, the mistreatment that the Applicant suffered was partly at the hands of other inmates and partly “institutional”. Since the only institution at issue was the Indiana state prison, the reference suggests state involvement in his mistreatment.
[6] The Board then concluded that there was adequate state protection to address abuses by state officials including an ombudsman, his own counsel (generally a public defender) and human rights groups.
[7] A recurring theme of the Applicant’s oral argument is that prison conditions for himself and others with physical and psychiatric conditions were so egregious as to constitute cruel and unusual punishment. As to the Applicant’s personalized claim of torture and cruel and unusual punishment, the Board only concludes that incarceration as punishment for criminal offences is not cruel or unusual.
II. ANALYSIS
[8] The Applicant raises a number of issues including whether he was singled out for persecution, errors of law in considering whether torture or cruel and unusual punishment had been inflicted, and error in concluding state protection was available. Since this matter can be disposed of on the issue of procedural fairness and the matter will be reheard, no comment will be made on these other issues.
[9] On the day of the Applicant’s hearing, he had intended to call at least one witness from the Schizophrenic Society of Alberta. Since the Applicant did not believe that his witness had arrived in time for the hearing, he advised the Board at the immediately preceding pre-hearing conference that he had no witnesses.
[10] When the Board’s hearing opened to the public, the Applicant’s witness was in attendance. The Board refused to hear the witness because the Applicant had indicated at the hearing that he would not be calling a witness. The Board did, at the conclusion of the hearing, allow the witness to speak briefly but indicated that his comments would not be considered by the Board in rendering its decision.
[11] With due respect to the Board, this decision is an obvious denial of natural justice and fairness. The reasons for not calling a witness were explained, the arrival of the witness was unexpected and it was unfair to deny this evidence because the Applicant was mistaken about whether his witness was available.
[12] There was no issue of prejudice advanced by the Respondent and it is impossible to discern any other legitimate reason for refusing to hear the testimony. It was an unreasonable exercise of discretion especially coupled with allowing the witness to speak but refusing, in advance of hearing what was said, to consider the witness’ comments.
[13] The Respondent acknowledges that a breach of natural justice occurred but contends that the evidence would have made no difference because the witness was from the Schizophrenic Society of Alberta and the Applicant is not schizophrenic. The Respondent argues that the breach of natural justice would have no effect, the decision would be the same – the result is inevitable.
[14] The difficulty with the Respondent’s position is that the witness, in an affidavit filed in this judicial review, says that he intended to address the Board on the nature of bi-polar disorder, the efficacy of medications in treating this disorder and the state of the mentally ill held in jails in Canada and the United States. These are subjects potentially relevant to the Applicant’s claim of mistreatment in the Indiana state prison.
[15] It is not possible to conclude that the Applicant’s case is hopeless and that the breach of natural justice should be ignored because the result is inevitably the refusal of the application for protection (as occurred in cases such as Gonzalez v. Canada (Minister of Employment and Immigration) (F.C.A.), [1991] F.C.J. No. 408 (QL); Konadu v. Canada (Minister of Employment and Immigration) (F.C.A.), [1991] A.C.F. No. 330 (QL)). As noted in Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202, where the result was inevitable, it is a rare case where breaches of natural justice can or, more importantly, should be ignored.
[16] In concluding that this case is not so weak as to be hopeless, the Court is not suggesting that the case has merit (even if that were within the Court’s jurisdiction to say) nor does it suggest that the Board’s other conclusions are necessarily flawed. However, where a breach of natural justice occurs, absent a clear indication that a rehearing would be no more than an exercise of form over substance, the Court should err on the side of upholding procedural fairness.
III. CONCLUSION
[17] For these reasons, this judicial review will be granted, the original Board decision quashed and the matter referred back to a differently constituted panel of the Board for a new determination.
[18] The Applicant was self-represented here and did a commendable job on his own behalf. It is acknowledged that the Applicant suffers from a bi-polar disorder, a common feature of which is anti-social or inappropriate behaviour. The Court does not have the power to order that counsel be appointed for the Applicant, but the Court trusts that Alberta legal aid officials would be open to considering a new application for the appointment of counsel for this Applicant.
[19] There is no question for certification.
JUDGMENT
IT IS ORDERED THAT this application for judicial review will be granted, the original Board decision quashed and the matter referred back to a differently constituted panel of the Board for a new determination.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5303-06
STYLE OF CAUSE: JEREMY DANIEL CLARK-ERSKINE
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: April 10, 2007
APPEARANCES:
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Mr. Jeremy Daniel Clark-Erskine
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Ms. Camille Audain
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SOLICITORS OF RECORD:
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SELF-REPRESENTED
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MR. JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Edmonton, Alberta |