[2002] 3 F.C. 266
IMM-5816-00
2002 FCT 149
Wen Zhen Huang (Applicant)
v.
The Minister of Citizenship and Immigration (Respondent)
Indexed as: Huang v. Canada (Minister of Citizenship and Immigration) (T.D.)
Trial Division, MacKay J.—Vancouver, June 20, 2001; Ottawa, February 8, 2002.
Constitutional Law — Charter of Rights — Arrest, detention, imprisonment — Applicant, illegal immigrant on board ship intercepted in Canadian waters, searched, handcuffed, taken to holding facility, interviewed — Told lawyer available three days after first apprehended — Applicant detained within meaning of Charter, s. 10(b) — Violation of right to retain and instruct counsel without delay and to be informed of that right.
Constitutional Law — Charter of Rights — Enforcement — Applicant, illegal immigrant on board ship intercepted in Canadian waters, searched, handcuffed, taken to holding facility, interviewed — Told lawyer available three days after first apprehended — Applicant detained within meaning of Charter, s. 10(b) — Violation of right to retain and instruct counsel without delay and to be informed of that right — In circumstances of case, CRDD’s decision to admit port of entry notes as evidence did not affect fairness of hearing as credibility finding, basis of refusal, not based on notes.
Citizenship and Immigration — Status in Canada — Convention Refugees — Applicant, illegal immigrant on board ship intercepted in Canadian waters, searched, handcuffed, taken to holding facility, interviewed — Told lawyer available three days after first apprehended — Convention refugee claim — Applicant detained within meaning of Charter, s. 10(b) — Violation of right to retain and instruct counsel without delay and to be informed of that right — In circumstances of case, CRDD’s decision to admit port of entry notes as evidence in Convention refugee hearing did not affect fairness thereof as credibility finding, basis of refusal, not based on notes.
The applicant, a citizen of China, was on board a ship intercepted by the RCMP and by Canadian immigration authorities. She was brought to shore, searched, handcuffed, taken to a holding facility, medically examined, and interviewed four times over the next few days. It was three days after she was first apprehended that the applicant was told that a lawyer was available to see her. She met with one shortly after that. At the hearing of her Convention refugee claim, she requested that the preliminary interview form, examination notes, and handwritten interview notes (the port of entry notes), taken at interviews before she was able to consult counsel, be excluded from proceedings before the CRDD, on grounds that these documents were obtained in breach of the applicant’s right to counsel. This request was refused, and her claim for Convention refugee status was dismissed. After finding that the applicant was not credible and that her claim to refugee status was not established, the CRDD dismissed the applicant’s claims that she was a refugee sur place, and that she would face severe persecution if sent back to China because she left the country without permission. This was an application for judicial review of the CRDD’s decision, the applicant submitting that the CRDD erred by considering evidence, which was obtained in breach of her right to counsel, as guaranteed by paragraph 10(b) of the Charter.
Held, the application should be dismissed.
The issues were whether the applicant was detained within the meaning of paragraph 10(b); if so, whether there was a violation of the applicant’s right to retain and instruct counsel without delay and to be informed of that right; if so, was the violation justified as a reasonable limit under section 1 of the Charter; if not, should the port of entry notes be excluded under subsection 24(2) of the Charter?
The standard of patent unreasonableness was applicable for review of the finding of credibility. However, the Court would intervene if the CRDD committed a breach of procedural fairness, or if it otherwise erred in law.
The applicant had been “detained” within the meaning of paragraph 10(b) of the Charter. The immigration authorities and the RCMP assumed close supervision and control over the applicant’s movements for approximately three days and offered her the opportunity to consult counsel only at the end of that time, after four interviews. This kind of control meets the criteria for “detention” as defined in R. v. Therens. In these circumstances, there was a violation of the applicant’s right to retain and instruct counsel without delay and to be informed of that right. Since there was no attempt at justification by the Minister, prima facie, the violation of the applicant’s rights under paragraph 10(b) was not justified under section 1 of the Charter.
The CRDD did not, however, err in failing to exclude the evidence under subsection 24(2) of the Charter. The CRDD’s decision to admit the port of entry notes as evidence did not affect the fairness of the hearing, because the CRDD, in finding the applicant not to be credible, did not base its finding on those notes. The officers did act improperly in failing to provide the applicant with access to counsel for three days, even if ultimately that error was remedied by providing access after an unlawful delay. The ultimate remedy for that wrong, in appropriate circumstances, would be exclusion from evidence of any statements made in that period of delay if those statements were to form a significant basis for the CRDD decision. But that was not the case herein.
The decision of the CRDD was not reached by unfair process and was not patently unreasonable.
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], ss. 1, 8, 10(b), 24(2).
Immigration Act, R.S.C., 1985, c. I-2, ss. 12 (as am. by S.C. 1990, c. 44, s. 16; 1992, c. 49, s. 7), 83(1) (as am. idem, s. 73).
CASES JUDICIALLY CONSIDERED
APPLIED:
R. v. Therens, [1985] 1 S.C.R. 613; (1985), 18 D.L.R. (4th) 655; [1985] 4 W.W.R. 286; 38 Alta. L.R. (2d) 99; 40 Sask. R. 122; 18 C.C.C. (3d) 481; 45 C.R. (3d) 97; 13 C.R.R. 193; 59 N.R. 122; Singh et al. v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; (1985), 17 D.L.R. (4th) 422; 12 Admin. L.R. 137; 14 C.R.R. 13; 58 N.R. 1.
DISTINGUISHED:
R. v. Simmons, [1988] 2 S.C.R. 495; (1988), 67 O.R. (2d) 63; 55 D.L.R. (4th) 673; 45 C.C.C. (3d) 296; 66 C.R. (3d) 297; 89 N.R. 1; 30 O.A.C. 241.
CONSIDERED:
Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 S.C.R. 1053; (1993), 101 D.L.R. (4th) 654; 10 Admin. L.R. (2d) 1; 20 C.R. (4th) 34; 14 C.R.R. (2d) 1; 18 Imm. L.R. (2d) 245; 150 N.R. 241.
REFERRED TO:
R. v. Collins, [1987] 1 S.C.R. 265; (1987), 38 D.L.R. (4th) 508; [1987] 3 W.W.R. 699; 13 B.C.L.R. (2d) 1; 33 C.C.C. (3d) 1; 56 C.R. (3d) 193; 28 C.R.R. 122; 74 N.R. 276; R. v. Burlingham, [1995] 2 S.C.R. 206; (1995), 124 D.L.R. (4th) 7; 97 C.C.C. (3d) 385; 38 C.R. (4th) 265; 181 N.R. 1.
APPLICATION for judicial review of a CRDD decision (U.R.V. (Re), [2000] C.R.D.D. No. 247 (QL)) dismissing the applicant’s claim for Convention refugee status. Application dismissed.
APPEARANCES:
J. Warren Puddicombe for applicant.
Brenda Carbonell for respondent.
SOLICITORS OF RECORD:
Larson Boulton Sohn Stockholder, Vancouver, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order rendered in English by
[1] Mackay J.: This is an application for judicial review of the decision of a the Convention and Refugee Determination Division (the CRDD), dated October 20, 2000 [[2000] C.R.D.D. No. 247 (QL)], dismissing the applicant’s claim for status as a Convention refugee.
[2] The applicant submits that the CRDD erred by considering evidence which was obtained in breach of her right to counsel, as guaranteed by paragraph 10(b) of the 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]] (the Charter).
Facts
[3] The applicant is a citizen of China. On August 31, 1999, the applicant was on board a ship which was intercepted in Canadian waters, off the shore of British Columbia, by the Royal Canadian Mounted Police (RCMP) and by Canadian immigration authorities.
[4] When the applicant was brought to shore, the police searched her body and seized her personal belongings. A number was written on the back of her neck and on a band which was placed on her wrist.
[5] While the applicant was standing in line with other people who had arrived on the boat, someone threw Chinese money into the water. Immigration authorities retrieved the money and asked whose it was. When no one responded, the authorities placed plastic handcuffs on the legs of five of the women, including the applicant, who were standing in line.
[6] The applicant was ordered to board a bus, which took her to a holding facility. Upon arrival, she was given a new number on a wristband attached to her wrist and was photographed. She was then ordered to remove her clothing, and when she did, her clothes were taken away to be destroyed. She was told to shower, and then she was medically examined. The doctor asked her to provide a urine sample and submit to an x-ray, and the applicant complied. After the medical exam the applicant was given red clothes to wear, and was separated from most of the other people from the boat, who were wearing white clothes.
[7] The applicant was then assigned to a room with beds with the four other women in red clothes, and was told to go to bed. After she fell asleep, she was awakened and told to take certain pills, which she did.
[8] Over the next few days, the applicant was interviewed four times, the third time, on September 3, by a senior immigration officer, who issued her an exclusion order barring her from making a claim to refugee status in Canada. Only then was she told that a lawyer was available to see her. At that point the applicant indicated that she wanted to see a lawyer, and, after a further interview by police, she met with one briefly.
[9] On or about September 14, 1999, the applicant filed an application for leave and for judicial review of the exclusion order but before that was dealt with the respondent Minister of Immigration agreed to re-examine the applicant for the purpose of her admissibility to Canada upon her discontinuance of the application earlier filed in this Court. The applicant discontinued her application, and was found eligible to make a claim for refugee status on or about June 21, 2000. Shortly thereafter, the applicant claimed status as a Convention refugee, and a hearing was scheduled for August 30, 2000.
[10] On August 16, 2000, counsel for the applicant wrote the CRDD, requesting that the preliminary interview form, examination notes, and handwritten interview notes (the port of entry notes), taken at interviews before she was able to consult counsel, be excluded from the proceedings before the CRDD, on grounds that these documents were obtained in breach of the applicant’s right to counsel. The CRDD refused this request, and the port of entry notes were admitted as evidence at the hearing.
[11] On October 20, 2000, the CRDD dismissed the applicant’s claim for Convention refugee status. In its written reasons, the CRDD explained why it had refused the applicant’s request to exclude the port of entry notes from the proceedings, and went on to assess the applicant’s credibility. After finding that the applicant was not a credible witness and that her claim to status as a refugee was not established, the CRDD dismissed the applicant’s claims that she was a refugee sur place, and that she would face severe persecution if she returned to China because she left the country without permission.
Issues
[12] The applicant submits that the port of entry notes were obtained in breach of her right to counsel, as guaranteed by paragraph 10(b) of the Charter, and therefore should have been excluded from the proceedings before the CRDD. Paragraph 10(b) provides:
10. Everyone has the right on arrest or detention
…
(b) to retain and instruct counsel without delay and to be informed of that right; ….
[13] It is common ground between the parties, following Singh et al. v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, that the reference to “everyone” in the section quoted above includes an individual in the position of the applicant. That aside, four issues arise for consideration. First, was the applicant “detained” within the meaning of paragraph 10(b)? Second, if so, was there a violation of the applicant’s right to retain and instruct counsel without delay and to be informed of that right? Third, if so, was the violation justified as a reasonable limit under section 1 of the Charter? Fourth, if not, should the port of entry notes, which were obtained in violation of the applicant’s rights under paragraph 10(b) be excluded under subsection 24(2) of the Charter? I will address each of these issues in turn. First, however, I must determine the appropriate standard of review which should be applied in this case.
Standard of review
[14] The respondent states that the CRDD has the advantage of seeing the applicant and hearing her testimony, and submits that this Court should show substantial deference to assessments of credibility made by the CRDD. In the respondent’s submission, this Court should not intervene merely because the evidence could conceivably lead to a different conclusion; rather, this Court should intervene only if it is satisfied that the CRDD based its conclusion on credibility on irrelevant considerations or ignored evidence that did not substantiate its findings. I accept that and apply the standard of patent unreasonableness for review of the finding of credibility. To this I would add that this Court will intervene if the CRDD committed a breach of procedural fairness, or if it otherwise erred in law.
Was the applicant “detained” within the meaning of paragraph 10(b)?
[15] In its decision, the CRDD wrote, at paragraph 20:
While the claimant was under the control of Immigration, it was not a detention within the meaning of s. 10(b) of the Charter. Neither the treatment to which the claimant was subjected to [sic] brings her within the meaning of detention as contemplated under s. 10(b) of the Charter.
[16] The applicant submits that the CRDD erred in finding that she was not detained within the meaning of paragraph 10(b). In support of this submission, the applicant relies on Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 S.C.R. 1053, where Mr. Justice Iacobucci, writing for the Court, commented, at pages 1065-1066:
The starting point in determining whether or not a “detention” has occurred for the purposes of s. 10(b) is the judgment of this Court in Therens … [R. v. Therens, [1985] 1 S.C.R. 613], at pp. 641-642:
…
In addition to the case of deprivation of liberty by physical constraint, there is in my opinion a detention within s. 10 of the Charter when a police officer or other agent of the state assumes control over the movement of a person by a demand or direction which may have significant legal consequences and which prevents or impedes access to counsel.
[17] The applicant submits that she was under the direct and constant control and custody of the RCMP and immigration authorities from the moment the ship she was on was intercepted by Canadian officials, and for the next three days. Moreover, the applicant submits that she was treated in a manner which was at least equally as intrusive as the strip search carried out in R. v. Simmons, [1988] 2 S.C.R. 495.
[18] The respondent states that the port of entry notes which the applicant sought to exclude relate to her immigration processing and not to any suspected criminality on the part of the applicant, and therefore principles which apply in the criminal context should not apply in this case. In support of this submission, the respondent relies on Dehghani, supra, where Mr. Justice Iacobucci, writing for the Court, held, at page 1071, that:
It is well-established that the questioning of an individual by an agent of the state does not always give rise to a detention of constitutional import.
[19] The respondent further submits that although the applicant was searched, that search does not constitute a detention within the meaning of paragraph 10(b). In support of this submission, the respondent relies on R. v. Simmons, supra, where then-Chief Justice Dickson, writing for the majority, commented, in respect of the reasonableness of a border search, at pages 528-529:
I accept the proposition advanced by the Crown that the degree of personal privacy reasonably expected at customs is lower than in most other situations. People do not expect to be able to cross international borders free from scrutiny….
In my view, routine questioning by customs officers, searches of luggage, frisk or pat searches, and the requirement to remove in private such articles of clothing as will permit investigation of suspicious bodily bulges permitted by the framers of ss. 143 and 144 of the Customs Act, are not unreasonable within the meaning of s. 8 [of the Charter].
The analogy is interesting but not persuasive since Simmons concerned the application of section 8 of the Charter to border searches, not the application of paragraph 10(b).
[20] In my opinion, the applicant in this case was detained within the meaning of paragraph 10(b) of the Charter. While I accept, as the Supreme Court stated in Dehghani, that the questioning of an individual by the state does not always give rise to a detention, in this case the immigration authorities and the RCMP assumed close supervision and control over the applicant’s movement for approximately three days and offered her the opportunity to consult counsel only at the end of that time, after four interviews and the issuance to her of an exclusion order. Following the ruling of the Supreme Court in Therens, this control over the applicant indicates that she was detained within the meaning of paragraph 10(b).
Was there a violation of the applicant’s right to retain and instruct counsel without delay and to be informed of that right?
[21] It is common ground between the parties that approximately three days passed between the time the applicant was first apprehended, on August 31, 1999, and the time she was first provided with an opportunity to retain counsel, which appears to have occurred on September 3 or 4, 1999. In view of my earlier conclusion that the applicant was detained within the meaning of paragraph 10(b), and noting that immigration officers concerned were aware as of August 31 of the availability of duty counsel, the applicant’s right to retain and instruct counsel without delay was violated, in my opinion.
Is the violation of the applicant’s paragraph 10(b) rights saved by section 1?
[22] It is trite law that if an individual’s Charter rights are infringed, the onus is on the Crown to justify the infringement under section 1 of the Charter, as a reasonable limit, prescribed by law, which is demonstrably justified in a free and democratic society. The respondent Minister has not addressed this issue directly. I conclude that, prima facie, the violation of the applicant’s rights under paragraph 10(b) was not justified under section 1.
Did the CRDD err by failing to exclude the evidence under subsection 24(2)?
[23] Having concluded that the applicant’s rights under paragraph 10(b) were violated in a manner not justified pursuant to section 1, the issue which arises for consideration is whether the CRDD erred by declining to exclude the port of entry notes under subsection 24(2) of the Charter. Subsection 24(2) provides:
24….
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
[24] In its decision, at paragraph 26, the CRDD adopted the following comments made by another panel of the CRDD:
It is clear from Simmons [R v. Simmons, [1988] 2 S.C.R. 495] that even when the Court held that there was a violation of the appellant’s Charter rights, the remedy was not to exclude the evidence obtained. I take particular note of the fact that the appellant Simmons faced criminal charges with a potential loss of liberty. Even in these circumstances, the Supreme Court [sic] held that the evidence should be admitted.
Even if I was to accept counsel’s argument that the limitation placed on the liberty of the claimant were far more onerous than those in the Dehghani case and that it constituted a detention under s. 10(b) of the Charter, it does not follow that I have to exclude evidence obtained in the course of these interviews. I take note of the fact that unlike criminal proceedings where there is a right to remain silent, there is a statutory obligation imposed on those seeking entry to Canada to answer questions truthfully and corresponding statutory obligations placed on Immigration Officers to conduct examinations of those seeking to enter Canada.
There is no evidence before me that the Immigration Officers acted in anything other than good faith under unusual and trying circumstances. I am of the view that Immigration officers acted in accordance with statutory requirements at the time they conducted these interviews and it would be the exclusion of this evidence that would bring the administration of justice into disrepute.
[25] The applicant submits that the CRDD erred by ignoring the decision of the Supreme Court in R. v. Collins, [1987] 1 S.C.R. 265, where Mr. Justice Lamer, as he then was, writing for the majority, set out, at pages 280-289, numerous factors to be examined when considering whether evidence which has been obtained subsequent to an infringement of the Charter should be excluded.
[26] The applicant further submits that the CRDD erred by failing to recognize that the potential consequences of a negative Convention refugee determination for the applicant in the case at bar are just as serious, if not more so, than those arising from criminal charges in Canada. Finally, the applicant disputes the CRDD’s finding that there was a lack of evidence that the immigration authorities acted in bad faith.
[27] The respondent relies on R. v. Burlingham, [1995] 2 S.C.R. 206, for the proposition that, when deciding whether or not to exclude evidence under subsection 24(2) of the Charter, the most important factor to consider is the effect of the inclusion or exclusion of the evidence on the fairness of the proceeding. The respondent submits that the CRDD’s decision to include the evidence did not affect the fairness in this proceeding, because the information in the port of entry notes was provided by the applicant to immigration authorities in a non-adversarial context, in response to reasonable questions, pursuant to section 12 [as am. by S.C. 1990, c. 44, s. 16; 1992, c. 49, s. 7] of the Immigration Act, R.S.C., 1985, c. I-2, as amended, and the questions posed were straightforward, including, for example: Why are you coming to Canada? Why did you leave China?, and Any reason you do not wish to return to China?
[28] The respondent further submits that the CRDD’s decision to include the evidence did not affect the fairness of the hearing, because the CRDD, in finding the applicant not to be credible, did not base its finding on the port of entry notes. Rather, in the respondent’s submission, the CRDD’s decision was based on significant inconsistencies between the applicant’s personal information form (PIF) and her testimony, and on internal inconsistencies in the applicant’s testimony. The applicant urges that by referring to the port of entry notes in its decision, the CRDD improperly considered evidence and the extent to which this influenced the assessment of the applicant’s credibility is indeterminable.
[29] In its decision, at paragraphs 48-49, the CRDD commented upon the applicant’s testimony and her PIF as follows, after finding her evidence implausible, concerning events that were central to her expressed fear of persecution:
Her evidence is also internally inconsistent. When asked by counsel in re-direct where the other officers were, she said they were searching other rooms of the house. Her statement in her PIF creates an impression that the officers were with the supervisor when she said: “she and the officers started to yell at me”. She also said in her testimony in direct examination that there was a “charged situation” and there was “yelling and shouting”. She also said in re-direct that the officers were only ten steps away from where she and the supervisor were.
Even if the officers were searching another room, I do not find it plausible that with the ensuing shouting and yelling and the charged situation described the claimant, that the officers would not have come right away to assist the supervisor. The officers would have heard the yelling and shouting. Further, in direct examination, when describing how her aunt was able to run away, she said that there were two doors in the house. On re-direct, she said there were four doors in the house. Further, she also said that the supervisor was at the bottom of the stairs when she pushed her, but later she said that the supervisor was one step lower than the step where the claimant was, and that was seven to eight steps. This is internally inconsistent.
I find that the claimant’s account of the event of June 1999 is confused, internally inconsistent and in other respects, implausible. I do not accept it as credible.
[30] The passage quoted above makes clear that, in addition to finding her evidence implausible, the CRDD’s decision was based on significant inconsistencies between the applicant’s PIF and her testimony, and on internal inconsistencies in the applicant’s testimony. In my opinion, the CRDD’s decision to admit the port of entry notes as evidence did not affect the fairness of the hearing, because the CRDD, in finding the applicant not to be credible, did not base its finding on those notes.
[31] The applicant also urged there was bad faith on the part of the immigration authorities in deliberately refraining from advising the applicant for three days that she was entitled to consult counsel, when they knew that duty counsel had been assigned for that very purpose. In the absence of any specific legislative direction, I agree that the officers acted improperly in refraining to provide the applicant access to counsel for three days, even if ultimately that error was remedied by providing access after unlawful delay. The ultimate remedy for that wrong, in appropriate circumstances, would be exclusion from evidence of any statements made in that period of delay if those statements were to form a significant basis for the CRDD decision. In my view that was not the case here.
[32] In my opinion, the decision of the CRDD was not reached by unfair process and was not patently unreasonable. The application for judicial review will be dismissed by order. That order will issue after consideration of any written submissions from counsel, after they have consulted about any proposed question for certification pursuant to subsection 83(1) [as am. by S.C. 1992, c. 49, s. 73] of the Immigration Act. Any such submission should be filed at the Court in Vancouver on or before February 18, 2002.