[1993] 3 F.C. 630
93-A-306
Burim Nrecaj, also known as Ded Kabashi, also known as Besim Murina, also known as Adria Krasniqi, also known as Papa Massimo (Applicant)
v.
The Minister of Employment and Immigration (Respondent)
Indexed as: Nrecaj v. Canada (Minister of Employment and Immigration) (T.D.)
Trial Division, Gibson J.—Vancouver, July 6 and 9, 1993.
Citizenship and Immigration — Status in Canada — Convention refugees — Application to set aside CRDD decision denying application — Finding applicant neither credible nor trustworthy, based partly on contradictions between testimony and notes of interview with C.I.C. manager — Refugee Hearing Officer taking position bound by no rules as to disclosure — Notes disclosed to applicant on final day of hearing — CRDD decision potentially affecting liberty, security of persons — Rules of fundamental justice including duty to allow Convention refugee applicant to effectively respond to case against him — Notes likened to “documentary evidence” RHO required to disclose — Disclosure must be timely — CRDD erred in expressing concern applicant would tailor evidence if disclosure granted, but not constituting bias.
This was an application to set aside the decision of the Convention Refugee Determination Division (CRDD) of the Immigration and Refugee Board that the applicant was not a Convention refugee. Upon his arrival in Canada, the applicant was interviewed by the manager of the local Canadian Immigration Commission. The manager made notes of the interview and gave testimony before the CRDD. The notes were eventually entered into the CRDD record. A contradiction between the applicant’s viva voce testimony before the CRDD and his interview with the CIC manager was established on the basis of the notes and the manager’s testimony, which contributed to the finding that the applicant’s testimony was not credible or trustworthy. Applicant’s counsel had requested disclosure of any documents, witness statements and evidence which the Refugee Hearing Officer (RHO) intended to use. The RHO refused. The CRDD refused to hear submissions on the issue of disclosure and expressed concern about the possible use of the notes, if disclosed, to tailor the applicant’s testimony. The applicant finally received the interview notes on the morning of the last day of the hearing. The issues were whether the refusal to order disclosure breached the rules of natural justice, and whether the CRDD exhibited bias by declaring its view that the claimant would tailor his evidence.
Held, the application should be allowed.
Failure to disclose impedes the ability of the accused in criminal proceedings to make full answer and defence, a common law right which has acquired new vigour since its inclusion in Charter, section 7 as one of the principles of fundamental justice. Likewise the ability of a Convention refugee claimant to make full answer and defence to evidence adduced against his claim or to impeach his credibility is critical. The role of an RHO is similar in many ways to that of Crown counsel in criminal proceedings. Immigration’s own manuals indicate that the RHO is required to disclose all documentary evidence to be used at the hearing. While the interview notes may not be “documentary evidence”, the principles enunciated with respect thereto would extend to them. With particular reference to the CRDD, the Immigration Act ensured a claimant the right to be represented and a reasonable opportunity to present evidence, cross-examine witnesses and make representations. These provisions could be rendered illusory if the applicant can be precluded from making the equivalent of full answer and defence. To meet the test of fairness, disclosure must be sufficiently timely to allow counsel to fully and effectively fulfill his role and to allow the party requesting disclosure to prepare. That obligation was not met.
As to the risk of tailoring evidence, the law is that a witness may refresh his memory from a previous statement. The search for truth is advanced rather than retarded by disclosure of all relevant material. The CRDD erred in expressing concern about evidence tailoring, but the concerns expressed did not constitute sufficient evidence of bias to taint the decision.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 7.
Immigration Act, R.S.C., 1985, c. I-2, ss. 69(1) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18; rep. by S.C. 1992, c. 49, s. 59), 69.1(5) (as enacted idem; rep. idem, s. 60).
CASES JUDICIALLY CONSIDERED
APPLIED:
R. v. Stinchcombe, [1991] 3 S.C.R. 326; (1991), 120 A.R. 161; [1992] 1 W.W.R. 97; 83 Alta. L.R. (2d) 193; 68 C.C.C. (3d) 1; 8 C.R. (4th) 277; 130 N.R. 277; 8 W.A.C. 161; Gough v. Canada (National Parole Board), [1991] 1 F.C. 160; (1990), 5 C.R.R. (2d) 127; 37 F.T.R. 73 (T.D.); Pathak v. Canada (Canadian Human Rights Commission), T-950-92, Muldoon J., order dated 17/5/93, F.C.T.D., not yet reported.
APPLICATION to set aside CRDD decision that the applicant was not a Convention refugee. Application allowed.
COUNSEL:
Richard K. Paisley for applicant.
Ian M. Brindle for respondent.
SOLICITORS:
Legal Services Society, Vancouver, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order rendered in English by
Gibson J.:
Relief Sought
This is an application for judicial review of a decision dated 6 January 1993, of the Convention Refugee Determination Division of the Immigration and Refugee Board of Canada (the “CRDD”) determining that the applicant herein is not a Convention refugee.
The relief sought is an order setting aside the decision of the CRDD and returning the matter to the CRDD for rehearing and redetermination in a manner not inconsistent with these reasons by a differently constituted panel.
The Facts
The facts giving rise to the applicant’s claim for Convention refugee status are essentially not in dispute. He bases his claim to have a well-founded fear of persecution on his political opinion and nationality. He is a citizen of Yugoslavia, of Albanian origin, born in the province of Kosovo in July, 1956. Prior to coming to Canada, he lived and worked in Yugoslavia and in Italy and apparently, for a brief time in Iran. He arrived in Canada in July, 1989, travelling with a false Italian passport. His wife apparently preceded him in coming to Canada, and took steps to sponsor him. This sponsorship was withdrawn following an altercation that resulted in the applicant being convicted of assault with a weapon, uttering a threat and aggravated assault. As a result, he received a sentence in Canada of three years which he commenced to serve in July, 1991. These convictions followed upon earlier convictions in both Yugoslavia and Italy.
The CRDD concluded that none of the applicant’s evidence is credible or trustworthy. It also found that the claimant does not have a credible basis for his claim to be a Convention refugee.
Apparently following his arrival in Canada, the applicant had an extensive interview with the manager of the Canadian Immigration Commission in Kelowna, British Columbia. The manager made notes of the interview (the “interview notes”) and gave testimony before the CRDD concerning the interview. The interview notes were used during the course of the CRDD hearing and are central to the issues that were argued before me. The interview notes were eventually entered into the CRDD record. A contradiction between the applicant’s viva voce testimony before the CRDD and his interview with the Canadian Immigration Commission manager was established on the basis of the interview notes and the manager’s testimony. That contradiction contributed to the finding that the applicant’s evidence was not credible or trustworthy.
The hearing of this matter by the CRDD commenced on May 10, 1991 and was not concluded until April 13, 1992. The last 2 dates on which the hearing was conducted were February 24 and April 13, 1992. The applicant was represented over the period of the hearing by two different counsel. Apparently the interview notes were shared with the first. Whether they were or not, they were not passed on to the second counsel in the package of material he received from the first counsel. This set the stage for the issues in dispute.
On February 17, 1992 counsel for the applicant contacted the refugee hearing officer concerned with this matter (the “RHO”) to request disclosure of any documents, witness statements and evidence in her possession which she intended to use in the case. The RHO responded by saying she was not bound by any rules regarding disclosure, that she had a number of documents, and that the Kelowna Immigration Centre Manager would give evidence of an alleged prior inconsistent statement. Counsel for the applicant then made a written demand for disclosure but no disclosure was made prior to the resumption of the hearing on February 24, 1992.
At the hearing on February 24, the RHO acknowledged that she had the interview notes but was not aware of any rule which required her to disclose them. Presiding CRDD members refused to hear submissions on the issue of disclosure. The interview notes were in fact used in cross-examination of the applicant and objection was taken to their use on the basis of non-disclosure. The presiding CRDD member was asked to order disclosure. He declined to do so. In fact, both CRDD members expressed concern about possible use of the notes, if disclosed, to tailor the applicant’s testimony.
Finally, the notes were sent by the RHO to the applicant’s counsel on April 9, 1992, by what means is not clear, with the hearing scheduled to resume on April 13, 1992. April 9, 1992 was a Thursday and April 13 was a Monday. In the event the notes were not received until after April 13. At the resumed hearing, the notes were shared and limited time was given to the applicant and his counsel, with the offer of the aid of an interpreter, to review them.
Issues
Thus, the issues that were argued before me were joined. They were described by counsel for the applicant in the applicant’s supplementary memorandum of points to be argued filed on June 14, 1993 in the following terms:
The Refugee Board erred in law, breached the rules of natural justice and denied the Applicant fundamental justice by failing to order the Refugee Hearing Officer to disclose material in her possession which was relevant to the proceedings and which she intended to use to impeach the Applicant.
The Refugee Board Members exhibited bias by declaring their view that the Claimant would tailor his evidence and by stating that they would have grave doubts as to the veracity of his testimony if proper disclosure were ordered.
The two issues are closely interrelated.
Analysis
Counsel for the applicant, in argument before me, defined the issue as one of “fairness” and argued that disclosure is required, in the interest of “fairness” and that disclosure, if it is to ensure fairness, must be timely. He referred extensively to the decision of the Supreme Court of Canada in R. v. Stinchcombe, [1991] 3 S.C.R. 326. That case dealt with the duty of the Crown to disclose in criminal proceedings by indictment. Thus, it is of no direct application to the matter before me. It is, nonetheless, instructive.
Sopinka J., speaking for the Court, had the following to say in his reasons [at page 333]:
It is difficult to justify the position which clings to the notion that the Crown has no legal duty to disclose all relevant information. The arguments against the existence of such a duty are groundless while those in favour, are, in my view, overwhelming.
He then goes on to review the “cons”, that is, the arguments against the existence of a duty on the Crown to disclose, one of which I will return to shortly, and concludes at page 336:
This review of the pros and cons with respect to disclosure by the Crown shows that there is no valid practical reason to support the position of the opponents of a broad duty of disclosure. Apart from the practical advantages to which I have referred, there is the overriding concern that failure to disclose impedes the ability of the accused to make full answer and defence. This common law right has acquired new vigour by virtue of its inclusion in s. 7 of the Canadian Charter of Rights and Freedoms as one of the principles of fundamental justice.
The ability of a claimant to Convention refugee status “to make full answer and defence” to evidence adduced against his or her claim or to impeach his or her credibility is of critical importance since the claim must be based on a well-founded fear of persecution if the claim is to be recognized. And indeed, the role and duty of an RHO at a CRDD hearing has many features in common with that of Crown counsel in criminal proceedings. Both the Quick Reference Book for Refugee Hearing Officers and the Refugee Hearing Officer’s Manual make it clear that the RHO is required to disclose to the claimant and counsel all documentary evidence to be used at the hearing by the RHO and to alert the claimant and counsel to the issues and precedents he or she feels are relevant to the claim. While the “interview notes” in question may not themselves have been “documentary evidence”, the principles enunciated with respect to documentary evidence would logically extend to them.
One of the “cons” referred to by Sopinka J., is the risk of “tailoring evidence” that was referred to by the CRDD members at the February 24, 1992 hearing and that forms the basis of the “bias” issue that is enunciated above. The following appears at page 335 of the Stinchcombe report:
Refusal to disclose is also justified on the ground that the material will be used to enable the defence to tailor its evidence to conform with information in the Crown’s possession. For example, a witness may change his or her testimony to conform with a previous statement given to the police or counsel for the Crown. I am not impressed with this submission. All forms of discovery are subject to this criticism. There is surely nothing wrong in a witness refreshing his or her memory from a previous statement or document. The witness may even change his or her evidence as a result. This may rob the cross-examiner of a substantial advantage but fairness to the witness may require that a trap not be laid by allowing the witness to testify without the benefit of seeing contradictory writings which the prosecutor holds close to the vest. The principle has been accepted that the search for truth is advanced rather than retarded by disclosure of all relevant material.
Do these principles extend to proceedings before a tribunal such as the CRDD? In my view they do.
With particular reference to the CRDD, the Immigration Act, R.S.C., 1985, c. I-2, as amended to the time of the 1992 hearing dates herein, ensured a claimant the right to be represented, at his or her own expense, by counsel or an agent, (subsection 69(1) [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18]) and a “reasonable opportunity to present evidence, cross-examine witnesses and make representations” (paragraph 69.1(5)(a) [as enacted idem]). These provisions, which have since been repealed and replaced [S.C. 1992, c. 49, ss. 59, 60], but not substantively modified, can effectively be rendered illusory if the applicant can nonetheless be precluded from making the equivalent of full answer and defence.
As indicated by Sopinka J., that common law right “has acquired new vigour by virtue of its inclusion in s. 7 of the Canadian Charter of Rights and Freedoms as one of the principles of fundamental justice” (supra, at page 336).
In a review of a decision of the National Parole Board where it was alleged, and found, that the Board failed to provide sufficient information to a person appearing before it to allow him to effectively respond to the case marshalled against him, Madam Justice Reed of the Federal Court, Trial Division, left no doubt that the rules of fundamental justice as referred to in section 7 of the Charter [Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] comprehend the duty to allow such a person to effectively respond to the case marshalled against him or her and extend to bind a board such as the National Parole Board which, like the CRDD, has the authority to make decisions that potentially affect the liberty and security of persons (Gough v. Canada (National Parole Board), [1991] 1 F.C. 160 (T.D.)).
In a more recent decision, Pathak v. Canada (Canadian Human Rights Commission), Court file T-950-92, not yet reported, decision dated May 17, 1993, Muldoon J., of the Trial Division of this Court dealt with a failure by the Canadian Human Rights Commission to provide certain documentation in the following terms [at pages 7-8]:
In that light, the applicant’s request is innocuous enough in terms of doing justice. One may wonder why the CRHC would not be inclined to “put all the cards on the table”. The Commission, by counsel, advises in a letter dated December 9, 1992, “that it objects to providing copies of the requested documentation because the material is not relevant to the application for judicial review”. Who knows? Why should the CHRC, an important public body, be playing what the public may regard as “lawyers’ games”, even although it considers that it is entitled to do so?
The same rhetorical question might equally be asked of the RHO and the members of the CRDD who comprised the panel in this case.
But sharing of the interview notes was provided in this case at the resumed hearing on April 13, 1992. Did that meet the obligation that I find to exist on the RHO and the CRDD? The short answer is, “no”. To adequately meet the test of fairness, disclosure must be timely. It must be sufficiently timely to allow counsel to fully and effectively fulfill his or her role and to allow the party requesting disclosure to prepare. In this case, that obligation was not met.
It was argued before me by counsel for the respondent that the hearing notes and the contradiction in the applicant’s testimony that they were used to establish were not critical to the CRDD’s decision; that without their use and the establishment of the particular contradiction, the decision would have been the same. That is not for me to speculate on. It is sufficient that I find a breach of fairness, as I do, to justify referring this matter back for rehearing. It will be for another panel of the CRDD to determine the impact of a remedying of that breach.
There remains the question of bias. The quotation from page 335 of the Stinchcombe decision above, in my view, is sufficient authority for the proposition that the members of the CRDD who presided at this matter were in error in expressing concern about evidence tailoring if sharing of the hearing notes immediately following the February 24, 1992 session had been ordered and the applicant and his counsel had been allowed to consult fully with respect to them. But that does not go to the question of whether the concerns they expressed constituted sufficient evidence of bias against the applicant to taint their decision. I am not satisfied on the evidence before me that it did.
Conclusion
In the result, the application is allowed, the decision of the CRDD herein dated the 6th day of January, 1993 is set aside, and the matter is returned to the CRDD for rehearing and redetermination in a manner not inconsistent with these reasons by a differently constituted panel.
Certification
Counsel for the applicant argued before me that this case presented a serious question of general importance, that question being to the following effect: whether the Convention Refugee Determination Division is bound by rules of fairness and natural justice, and/or by section 7 of the Canadian Charter of Rights and Freedoms, to ensure the disclosure, in a timely manner, to the applicant or to his or her barrister or solicitor or other counsel, of all documentation that will or may be used to impeach the credibility of the applicant. Counsel for the respondent disagreed. I am in agreement with the position of counsel for the applicant and therefore certify a question in the terms indicated.