Docket: IMM-308-02
Ottawa, Ontario, this 24th day of January, 2003
Present: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
MILAN TOKAR
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Milan Tokar (the "applicant") has presented this application for judicial review of a decision of the Convention Refugee Determination Division ("CRDD") of the Immigration and Refugee Board. The CRDD granted the application of the respondent to vacate the Convention refugee status of the applicant. The CRDD held that the claim of the applicant for refugee status should be vacated, as he presented a fraudulent claim. The CRDD declared that the applicant was not a Convention refugee, but that the wife and two children of the applicant would continue to be recognized as Convention refugees. These three persons are not parties to this application.
ISSUE
[2] The issue before me is whether the applicant was denied the right to a fair hearing, or whether procedural fairness was denied to the applicant.
[3] My answer to this question is that there was no breach of procedural fairness, and I dismiss the application for the reasons set out below.
BACKGROUND
[4] The applicant is a citizen of Slovakia. He originally presented his refugee claim under the name Oldrich Sindelar, and claimed that he was a citizen of the Czech Republic and that he faced persecution in that country. The applicant arrived in Canada on September 10, 1997 and submitted his Personal Information Form ("PIF") on March 10, 1998. On December 17, 1998, the CRDD determined, without a hearing, that the applicant was a Convention refugee. His wife and two children had already been granted Convention refugee status on November 6, 1998, following a hearing conducted on that day.
[5] The respondent made an ex parte motion to the CRDD on April 25, 2000 seeking that the CRDD vacate the Convention refugee status of the applicant. Their ground was that they made representations which were untruthful, and that had the truth been known to the CRDD, the representations could have resulted in a different determination.
[6] The respondent decided to bring that motion following an investigation which yielded several pieces of evidence with regard to the applicant. These pieces of evidence appear as exhibits accompanying the declaration of Hearing Officer Dave Henry, an agent of the respondent.
[7] The circumstances of the applicant were brought to the attention of the respondent following requests to the Canadian government from Czech officials for assistance in locating the applicant. The applicant had sentences pending against him for theft, fraud and other offences in the Czech Republic. In short, he was a fugitive from justice in the Czech Republic. The respondent then began an investigation, enlisting assistance from the Royal Canadian Mounted Police (RCMP), Czech and Slovak authorities and the international police agency, Interpol, among others.
[8] The investigation yielded several indicia of the true identity and circumstances of the applicant. An examination of the fingerprints of the applicant revealed that the prints of the applicant, who had claimed to be Oldrich Sindelar, matched the prints on record in the Czech Republic as belonging to Milan Tokar. The physical description of Milan Tokar furnished by Czech authorities matched that of the applicant, and the sheet on which the applicant's physical description was given also contained notations to the effect that he is supposed to be serving sentences for fraud and theft, and that he may have entered Canada under a name other than his own or using a false passport. Police in Toronto added documents to the file relating to a theft charge laid in 1998 after the applicant was accused of shoplifting at a store in that city. The applicant was not convicted on that charge. Nonetheless, the collection of evidence was amply sufficient to establish the true identity of the applicant and the fact that he is wanted in the Czech Republic.
CRDD PROCEEDINGS AND DECISION
[9] The hearing on the motion to vacate the refugee status of the applicant was originally scheduled for January 12, 2001. This date was set in order to process the motion on an expedited basis, as the applicant had been in detention at the premises of the respondent when this date was set. Counsel for the applicant advised the CRDD on January 8, 2001,_ that the applicant had since been released, and that counsel could not attend on January 12, 2001.
[10] The CRDD granted the requested adjournment and rescheduled the hearing for July 25, 2001. Counsel for the applicant requested an adjournment, explaining that he had to argue another matter on that date, and that he had not been consulted to the CRDD prior to the scheduling of the hearing with respect to the applicant for that date. Counsel stated that he was the counsel of choice of the applicant and his family, and listed dates on which he would be available.
[11] The CRDD granted that adjournment and rescheduled the hearing to November 7, 2001. The Notice to Appear informing the applicant of this newly determined date was dated July 13, 2001. Counsel for the applicant wrote to the CRDD on November 5, 2001, requesting that the matter be adjourned once again, as he was required to appear before the Parliamentary Justice Committee and could therefore not be present in Toronto on the day of the hearing.
[12] The CRDD proceeded to adjourn the hearing to January 9, 2002. The Record of Hearing issued by the CRDD on November 7, 2001, noted the presence of the applicant, the absence of his counsel and indicated that the date to which the matter was adjourned would be peremptory.
[13] On January 1, 2002, counsel for the applicant sent another letter to the CRDD, which it received on January 4, 2002, asking for an adjournment as he had to attend to another matter that week. That adjournment was denied.
[14] The hearing proceeded on January 9, 2002, notwithstanding the denial of the adjournment. In spite of the refusal of the CRDD to grant another adjournment, counsel did not appear. Another request submitted to the CRDD accompanied by hand-written notes prepared by counsel was also denied, and the CRDD proceeded in the absence of counsel.
[15] The decision was rendered orally on January 9, 2002, by the panel of three CRDD members which presided over the hearing. They released their written reasons on February 6, 2002. In the decision, the panel stresses that the claimants, including the applicant in the present case, were notified at their November hearing that their hearing would proceed on January 9, 2002, with or without counsel.
[16] The CRDD proceeded to examine the merits of the motion against the applicant. It held that the applicant was Milan Tokar, and that he was the same person who claimed to be Oldrich Sindelar. He was found to have fraudulently used the name, identity and documents of Oldrich Sindelar, a Czech citizen to make a refugee claim in Canada. He failed to disclose his criminal record in the Czech Republic and the fact that he was wanted by officials in that country.
[17] The panel also found that the claimant is a citizen only of Slovakia and of no other country. Accordingly, his claims of persecution in the Czech Republic cannot serve to support a determination that he is a Convention refugee, and he made no claims with respect to Slovakia. This goes to the heart of the refugee claim, and the determination that he was a Convention refugee and accordingly, had to be vacated. The panel dismissed the motion of the respondent to vacate the Convention refugee determinations of the applicant's wife and children; therefore, that portion of the decision is not relevant to the case at bar.
SUBMISSIONS
Applicant
[18] The CRDD perversely denied the applicant natural justice and a fair hearing, and breached his right to counsel by not adjourning the hearing. The CRDD failed to consider such relevant factors as those set out in Siloch v. Canada (Minister of Employment and Immigration) (1993), 18 Imm. L.R. (2d) 239 (F.C.A.), and adopted in Ali v. Canada (Minister of Citizenship and Immigration), 2002 FCT 259, [2002] F.C.J. No. 336 (T.D.) (QL). The most notable factors that the CRDD ought to have considered were the length of the adjournment sought and whether an adjournment of that duration would unreasonably impede the proceedings.
[19] The applicant also cited R. v. McCallen (1999), 43 O.R. (3d) 56 (C.A. Ont.).
[20] The statutory right of the applicant to a hearing and counsel was not respected. The request of counsel was reasonable in the circumstances. The decision of the CRDD showed what counsel refers to in his submissions as "disregard and contempt for the function, role and priority of this Court vis-à-vis inferior administrative federal tribunals". The right to a fair hearing is an independent right that has been recognized as such by this Court and the Supreme Court of Canada.
[21] Counsel also submitted that the applicant should not be prejudiced by the scheduling dilemmas of counsel. The applicant also submitted that the decision of the Board was "'unreasonable' and ought to be set aside".
Respondent
[22] The applicants were notified in November 2001, that the hearing of the applicant would proceed on January 9, 2002, with or without counsel, and that counsel for the applicant was aware in mid-December that he had a potential conflict between this hearing and another matter. The applicant has not provided cogent evidence as to why alternate counsel could not be obtained. There is no evidence that counsel made any attempt to locate alternate counsel. In the circumstances, the decision to proceed on a peremptory basis on January 9, 2002, did not result in any unfairness to the applicants.
[23] Although applicant's counsel knew that this case was set to be heard peremptorily on January 9, 2002, he double booked himself for a hearing in the same week.
[24] The case law on the right of a party to counsel does not guarantee the party the right to the lawyer of his or her choice in all circumstances. The limitations on this right were discussed in Dadi v. Canada (Minister of Citizenship and Immigration) (1999), 173 F.T.R. 123 (F.C.T.D.).
Applicant's Reply
[25] The applicant suggested in his reply that the submissions of the respondent amounted to simple repetition and reiteration of the reasons of the CRDD, and failed to address the relevant serious issues raised by the present application. The applicant took exception to the remark by the respondent that there was no cogent reason why counsel for the applicant could not find alternate counsel. The position of the applicant was expressed in this manner in paragraph 3 of the Applicant's Reply to the Respondent's Written Submissions (filed on April 24, 2002):
In particular, with respect to the "no cogent reasons" why counsel could not obtain alternate counsel in the space of 20 days (over the Christmas holidays) ready and willing to argue an involved and complex case is, with the utmost of respect (sic) , completely indicative of the "Alice-in-Wonderland" Luxury (sic) of the Respondents' position, who have 300 + lawyers in their Toronto office at their public disposal, and no inkling of the reality of private practice. [emphasis in original]
[26] The applicant concluded his reply in the following paragraph:
With respect, the issue is: why could the Board not yield to the Federal court on a s. 40.1 proceeding [...] in which Mr. Tyndale was a participant counsel for the Respondent?
ANALYSIS
[27] In Siloch, supra, the Federal Court of Appeal held that the decision of an adjudicator to deny the request of an applicant for an adjournment due to the absence of her counsel had the effect of denying her a fair hearing. In that case, the Case Presenting Officer appearing on behalf of the respondent did not oppose the request for an adjournment, although that did not sway the decision of the adjudicator in favour of granting an adjournment. Siloch is best viewed when seen in its factual context, as described by Décary J.:
In the circumstances of this case, where the intention of the applicant to proceed was unquestionable, where the applicant had no reason to question the reliability of her counsel until the moment he did not show up, where the only adjournment granted in the case so far had been to allow the applicant to appoint counsel, where no fault or blame could be put on the applicant for not being ready, where the Adjudicator took into consideration a factor unknown to the applicant and therefore irrelevant as far as she was concerned, i.e. the actual experience of the Adjudicator that very same day in another case and the history of poor behaviour of counsel, where the Adjudicator did not enquire as to the length of the adjournment being sought nor offer the applicant a short adjournment to enable her to find new counsel; and where there is absolutely no indication that a short adjournment would affect the immigration system or needlessly delay, impede or paralyse the conduct of this particular inquiry, the Adjudicator, in denying the adjournment [...], deprived the applicant of her right to a fair hearing. [...] [emphasis added]
[28] In the present case, three adjournments had previously been granted to counsel for the applicant. Therefore the facts in the case at bar are not the same.
[29] The two factors that this Court recommended in Ali, supra, for determination as to whether an adjournment should be granted are: the length of the adjournment and whether an adjournment of that duration would reasonably impede the proceedings. However, as with the ruling in Siloch, the pronouncement of this Court in Ali requires an examination of context in order to gauge its applicability. In Ali, the bases of the refusal to grant an adjournment were not supported by the evidence and were therefore patently unreasonable.
[30] The right to a fair hearing includes the right to counsel, but it does not include the right to counsel of one's choice at all times. In Dadi, supra, the Court held that the applicant, given the circumstances, was not denied the right to a fair hearing despite the fact that the hearing proceeded in the absence of counsel.
[31] In Dadi, Pinard J. quoted a passage by Rothstein J. (as he then was) in Afrane v. Canada (Minister of Employment and Immigration) (1993), 64 F.T.R. 1 (F.C.T.D.). At paragraph 29 of that decision, the learned judge stated in his conclusion remarks:
I will take this opportunity to observe that the right to be represented by counsel is not an absolute right. It is predicated on all parties and counsel acting reasonably in all circumstances. [...]
[32] Another passage from Afrane, supra at paragraph 24, also attracts attention, particularly in light of its relevance to the case at bar:
[...] it should be observed that this is not a case where a peremptory date was set, nor is there evidence that the applicant or his counsel had deliberately attempted to delay the process. [...]
[33] In the present case, the date on which the matter proceeded and was decided was clearly defined as peremptory. The applicant knew that his case would proceed on January 9, 2002, with or without counsel. When he became aware both that the date was peremptory and that the counsel of his choice could not appear, it would have been reasonable to expect him or his counsel to make some attempt to retain alternate counsel. It is accepted that this task is difficult during the Christmas holiday period; however, it is not impossible. Claimants can and do find counsel at all times of the year.
[34] The CRDD was reasonable in granting the previous adjournments that had been requested. Similarly, its decision to refuse the most recent adjournment requested was also reasonable in the present case.
[35] For these reasons, this application for judicial review is dismissed.
[36] Counsel for the applicant submitted the following questions for certification:
a) Does an inferior tribunal have jurisdiction to proceed with a hearing where counsel is required to be in a Superior Court, having supervisory jurisdiction over that inferior tribunal, on the same day?
b) If the answer to question 1 is "yes", does the exercising of that jurisdiction infringe the client's Charter right(s) to counsel of choice?
[37] Counsel for the respondent submitted the following question for certification:
a) Do Applicants at a hearing before the Immigration and Refugee Board have a guaranteed right to have their counsel of choice present, where the hearing has been set down on a peremptory basis?
[38] The applicant gave his consent to this question, except for the word "guaranteed". In any event, I have answered the respondent's question in these reasons and I do not find that it is of general importance. Therefore, I do not propose to certify it.
[39] As for the questions proposed by the applicant, I find that they are related to the facts of the case and therefore not of general importance. Accordingly, I will not certify them.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review is dismissed.
2. No serious question of general importance is certified.
_________________________
Judge