Date: 19991124
Docket: IMM-896-99
Entre:
LE MINISTRE DE LA CITOYENNETÉ ET DE L"IMMIGRATION
Demandeur
-et-
TITISOR ION
Défendeur
REASONS FOR ORDER
TEITELBAUM, J:
[1] This is an application for judicial review pursuant to section 82.1 of the Immigration Act, R.S.C. 1985, c. I-2 (Act) of a decision of Mr. Michel Beauchamp, a member of the adjudication section of the Immigration and Refugee Board, dated February 12, 1999, ordering that the respondent be freed, with no conditions attached.
[2] The applicant seeks an order setting aside the decision of the adjudicator and remitting the matter back for redetermination before another adjudicator of the adjudication section of the Immigration and Refugee Board.
FACTS
[3] The respondent is a citizen of Romania of tsigane (gypsy) origin. He arrived in Canada under a false name and in possession of a false passport on April 28, 1996.
[4] On April 30, 1996, the respondent claimed refugee status in Canada and in doing so, swore that he had never committed a criminal act and had never been convicted of a criminal act in another country.
[5] The respondent has a history of criminal acts committed in his country, including thirteen crimes between 1986 and 1987, and a charge of attempted murder of a policeman in 1992 for which he was condemned to nine years imprisonment in 1997.
[6] From March 17 to March 19, 1998, the respondent was detained following his arrest pursuant to an investigation by Canada Customs and the RCMP who had been informed that the respondent was receiving gold ingots by post.
[7] Following a search conducted by the RCMP, documents were found which indicated that the respondent was receiving funds from various countries totalling approximately $18,000.
[8] Through this investigation, the RCMP learned that there was an Interpol international warrant for the arrest of the respondent and that he had a long history of criminal activity in Romania, including a sentence given in his absence on October 2, 1997 for nine years in prison for the attempted murder of a police officer. This criminal act had been committed by the respondent on September 9, 1992 and he was freed pending his trial when he fled Romania.
[9] Immigration authorities were also informed that the respondent was sentenced to seven years in prison for aggravated theft committed in Romania in 1988 for which he was considered a recurring criminal by the Court on the grounds that he had already committed thirteen previous crimes between 1986 and 1987. This sentence was reduced to three and a half years following a general amnesty by the Romanian state after the fall of Ceaucescu.
[10] For these reasons, a second report was made pursuant to paragraph 27(2)(a) of the Act and subparagraph 19(1)(c.1)(i) of the Act and the respondent was subsequently detained from March 17, 1998 until the termination of the investigation.
[11] On March 19, 1998, the respondent was released by a decision of Adjudicator Pierre Turmel following payment of a bail of $8,000. and pending the outcome of the investigation.
[12] On November 8, 1998, the respondent made an application for leave and for judicial review of an opinion issued by the Minister stating that the respondent constituted a danger to the public in Canada.
[13] On December 16, 1998 the respondent was again detained by an adjudicator who found him to be a person described under subparagraph 19(1)(c.1)(i) of the Act by reason of a criminal act committed by him abroad, which, if committed in Canada, would have been subject to a maximum term of imprisonment of ten years or more.
[14] The respondent"s claim for refugee status was deemed inadmissible on December 16, 1998 and a deportation order was made against him.
[15] The detainment of the respondent was upheld successively by several adjudicators, including Adjudicator Michel Beauchamp who found that the respondent would not present himself for deportation to Romania and therefore should continue to be detained.
[16] However, in his decision of February 1, 1999, Adjudicator Beauchamp specified that the respondent"s detainment would be unjustified if his deportation did not occur within two to three months from the date of the hearing. He concluded that the respondent should be detained until such time as he paid a bail of $8,000. at the time of either the date of the decision of the Federal Court granting leave, or in the alternative, on April 30, 1999 if no decision had been given by the Court on the application for leave.
[17] On February 11, 1999, the Federal Court granted the application for leave and set a date of March 11, 1999 for the hearing.
[18] On February 12, 1999, the Minister"s delegate made a request for an urgent hearing which was granted by the refugee section of the Immigration and Refugee Board, with Adjudicator Michel Beauchamp being designated to preside over the hearing.
[19] At the beginning of the hearing on February 12, 1999, Adjudicator Beauchamp indicated that he would render a decision freeing Mr. Ion "pure and simple" if the Minister insisted on continuing with the hearing scheduled for that day because the order he gave at the hearing on February 1, 1999 had not been followed.
[20] At the conclusion of the hearing, the Adjudicator held that the respondent should be freed with no conditions attached.
[21] The applicant filed this application for leave and judicial review as a result of this hearing conducted by Adjudicator Beauchamp on February 12, 1999 and the decision that Mr. Ion be freed.
THE DECISION OF THE ADJUDICATOR
[22] The essential paragraph of the Adjudicator"s decision, delivered orally, is as follows:
| Premièrement, lors de l"audience du 1er février, j"avais été (inaudible) pour effectivement le délai d"audience était minimum trente (30) jours, maximum quatre-vingt-dix (90) jours. Dans ce cas-ci, c"était le minimum qui était utilisé. |
| Mais aussi, la page 8 s"est précédé d"autres pages et dans ces autres pages ou un peu plus loin, j"avais, avant d"entrendre maître Sloan, j"avais déjà annoncé mes couleurs en prenant pour acquis ou comme probables les faits que vous m"aviez invoqués alors, à savoir qu"un décision devait être... était maintenant rendue assez rapidement depuis un (1) an ou deux (2), à savoir environ un (1) mois, là, vous comptiez à ce moment-là un (1) mois à six (6) semaines pour qu"une décision soit rendue sur la demande d"autorisation. |
| Et malgré tout, j"avais déjà annoncé que j"entendais reconduire l"offre que monsieur Turmel avait faite au mois de mars précédent, et ce, malgré qu"il pouvait s"écouler un délai assez court qui pouvait résulter dans une décision négative. Le délai a dépassé, pas le mot, le mot, c"est un mot contraire qui s"appliquerait, là, a, en tout cas, le délai qui s"est écoulé a dépassé tout vos espoirs... |
| [ ]...et je vais donner suite, là, à ce que j"ai dit en début d"audience, compte tenu que, il m"apparaît, et je me trompe peut-être, mais il m"apparaît que la libération n"a pas eu lieu ce matin à l"encontre de la décision que j"ai rendue. Et ne voulant surtout pas que ce fait se répète... |
| [ ]...j"ordonne présentement la libération pure et simple de monsieur Ion avec les mêmes conditions qu"il aurait à respecter, à savoir, le cautionnement n"est plus exigé, mais les conditions qu"il a, qui apparaissent sur ma décision du 1er février, s"appliquent toujours. L"audience est donc terminée. |
ISSUES RAISED
| [23] This application raises the following questions: |
| (1) Did the adjudicator behave in an impartial manner at the hearing conducted on February 12, 1999? |
| (2) Did the adjudicator breach the principles of natural justice by the comments he made at the outset of the hearing on February 12, 1999? |
POSITIONS OF THE PARTIES
Applicant"s Position
[24] The applicant argues that the Adjudicator, Michel Beauchamp, failed to act impartially at the hearing held on February 12, 1999 and thereby exceeded his jurisdiction by rendering a null and void decision.
[25] Secondly, the applicant argues that the adjudicator breached the principles of natural justice by his statements at the outset of the hearing, which amounted to a decision on the matter before having heard the arguments of the parties.
Respondent"s Position
[26] The respondent submits that the decision of the adjudicator is valid on two grounds: (1) the issue is moot as the respondent was freed on his own recognizance minutes after the decision under attack was rendered and (2) the adjudicator was not prejudicing the case when he made his comments at the outset of the hearing given that he had already heard the arguments less than two weeks earlier and had already reviewed the file.
[27] The respondent submits that the adjudicator had received a letter from Ms. Lyzann Penwarn on the day of the hearing, requesting the hearing and setting out the grounds which were the basis of the applicant"s argument, as well as the reply from counsel for the respondent.
[28] Lastly, the respondent submits that the adjudicator made his comments in a situation analogous to that where a judge calls the parties to the Bench, or into chambers, to tell them that, based on the documentary evidence in the file, a settlement is in order.
ANALYSIS
The Impartiality of the Adjudicator
[29] The issue raised by this application is whether the applicant was afforded a fair hearing by Adjudicator Beauchamp on February 12, 1999. The applicant contends that the Adjudicator"s comments at the outset of the hearing is evidence that he did not acted impartially. In effect, the applicant is arguing that the adjudicator held a bias in favour of the respondent because of his view that the Minister had no basis to request the hearing.
[30] This Court has already established in Arthur v. Minister of Employment and Immigration, [1993] 1 F.C. 94 at page 105 that:
| the mere fact of a second hearing before the same adjudicator, without more, does not give rise to a reasonable apprehension of bias... |
[31] In this case, the applicant is arguing that it was not the fact that Adjudicator Beauchamp had presided over the earlier hearing which caused him to be impartial, rather, it was his comments at the outset of the February 12, 1999 hearing which effectively denied the applicant a fair hearing.
[32] Turning back to those comments for a moment, the transcript states the following at page 2:
PAR L"ARBITRE
| - Qu"est-ce que je fais ici? |
| - Moi, en ce qui me concerne, mon offre devenait valable hier. Si quelqu"un s"est présenté et que vous n"avez pas respecté, c"est vos problèmes. Monsieur Ion pourra prendre les mesures qu"il faut en cour supérieure (inaudible) corpus . Si vous voulez absolument écoutez une audience, je vais en tenir une ordonnant la libération pure et simple de monsieur Ion. |
[33] The transcript then states at page 3:
PAR L"ARBITRE
| - J"ai donc demandé pourquoi j"étais ici cet après-midi, en indiquant que si Monsieur n"était pas libre devant moi présentement, il s"agissait, à mon avis, très humblement, là, je ne suis pas un juge de la cour supérieure, avec une déclaration illégale et que si on tenait avoir une audience aujourd"hui, j"allais en tenir une, avec... comme décision d"ordonner la libération pure et simple. |
[34] Based on these comments, the applicant alleges that the adjudicator shows a bias at the very outset of the hearing and had concluded that he would decide the matter in favour of the respondent before having heard the arguments of the parties or at least before hearing the applicant"s submissions.
[35] On this issue, the reasoning of Lord Denning in Metropolitan Properties Co. (F.C.C.) Ltd. v. Lannon, [1969] 1 Q.B. 577 at page 599 is directly on point. He stated:
| There must be circumstances from which a reasonable man would think it likely or probable that the justice, or chairman, as the case may be, would, or did, favour one side unfairly at the expense of the other. The court will not enquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence; and confidence is destroyed when right-minded people go away thinking : "The judge was biased." |
[36] The seminal case on the question of whether a decision-maker decided a case unfairly is Committee for Justice and Liberty v. Canada (N.E.B.), [1978] 1 S.C.R. 369 where the Supreme Court of Canada articulated the test for reasonable apprehension of bias as to whether or not an informed person, viewing the matter realistically and practically and having thought the matter through, would think it more likely than not that the decision-maker would unconsciously or consciously decide an issue unfairly.
[37] Applying this test to the facts of the case at bar, I am in agreement with the applicant"s submission at paragraph 40 of his written submission that a reasonable person, being apprised of all the circumstances of the case, would think it more likely than not that the adjudicator decided the issue unfairly after having made the above-cited comments at the outset of the hearing.
[38] In the matter before me, the question as to whether the respondent should be freed, and the potential fate that he faces should he be deported home to Romania, is of a very serious nature. The respondent has a lengthy criminal record which includes the most violent of crimes, attempted murder of a law enforcement officer. This in itself explains why the Minister felt it necessary to request a hearing on February 12, 1999 and why this application for judicial review is before the Court.
[39] I refer to the words of Justice LeDain in Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643 where he so eloquently states why the right to a fair hearing is of paramount importance:
| ...the denial or a right to a fair hearing must always render a decision invalid, whether or not it may appear to a reviewing court that the hearing would likely have resulted in a different decision. The right to a fair hearing must be regarded as an independent, unqualified right which finds its essential justification in the sense of procedural justice which any person affected by an administrative decision is entitled to have. It is not for a court to deny that right and sense of justice on the basis of speculation as to what the result might have been had there been a hearing. |
[40] The facts of this case illustrate that the adjudicator did not give the parties the opportunity to present their arguments in a fair manner, as he had dismissed the applicant"s submission before it was presented. It is clear from the transcript that the applicant was being penalized by the adjudicator for not having released Mr. Ion on the previous day.
[41] I find it appropriate in these circumstances to turn back to the statement made in 1924 by Hewart C.J. in Rex v. Sussex Justices, Ex Parte McCarthy, [1924] 1 K.B. 256 at page 259:
| ...it is not merely of some importance but it is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done. |
[42] Regrettably, this did not occur in the case at bar. I am of the opinion that the adjudicator had pre-judged the applicant"s case and thereby denied him a hearing consistent with the principles of natural justice.
[43] Therefore, the application is granted, the decision of Adjudicator Beauchamp is set aside, and the matter is remitted back for redetermination by a newly constituted panel of the adjudication division of the Immigration and Refugee Board.
QUESTIONS FOR CERTIFICATION
| [44] Counsel for the respondent has filed the following two questions for certification: |
| 1. If an Immigration adjudicator is faced with an apparent violation of the rule of law, constituted by the non-compliance of the Canadian government with a previous order which would have resulted in a person"s release from detention, is the adjudicator"s stated predisposition to assure that that person will be released at the end of the hearing sufficient to constitute an apprehension of bias? |
| 2. Is the issue moot if the grounds which led the adjudicator to order the respondent"s release no longer exist? |
[45] Counsel for the applicant opposes the certification on the grounds that the questions "ne sont pas des questions graves de portée générale au sens de l"article 83 de la loi sur l"immigration".
[46] I am satisfied that neither question meets the criteria of section 83 of the Immigration Act.
[47] It is plain and obvious that when an adjudicator decides an issue before allowing the party to make his or her submission that the adjudicator, in this case, showed bias.
[48] No matter how much information the adjudicator may have concerning a file before the hearing, the adjudicator must allow the parties, with an open mind, to make their submissions. This the adjudicator failed to do.
"Max M. Teitelbaum"
J.F.C.C.
Ottawa, Ontario
November 24, 1999