Ottawa, Ontario, October 24, 2006
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
JEANETTE AUGUSTINA SCOTLAND AKA
JEANETTE AUGUST SCOTLAND
and
AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] Jeanette Scotland was physically and verbally abused over a period of about two years by her common-law partner. She complained to the police, but was not satisfied that they were doing anything. It culminated with her rape. She fled her native Dominica and came to Canada where she sought refuge.
[2] The Refugee Protection Division (RPD) of the Immigration and Refugee Board believed her, and accepted that she subjectively feared for her life should she be returned to Dominica. However, it found that there was sufficient state protection and so decided she was neither a refugee within the meaning of the United Nations Convention nor a person in need of our protection. This is a judicial review of that decision.
ISSUES
[3] As Ms. Scotland was believed, there are only two issues:
a. The standard of judicial review
b. The effectiveness of state protection
STANDARD OF REVIEW
[4] This Court has struggled with the notion of state protection. A determination of what protection is generally available in a state derives from findings of fact. The RPD is specialized in these matters and is owed considerable deference. Findings of fact are usually not disturbed unless patently unreasonable.
[5] On the other hand, a forward looking projection of what might happen to Ms. Scotland should she be returned to Dominica may involve the application of factual findings to the legal standard established in the leading case of Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689. That may be a mixed question of fact and law, which normally is subjected to a reasonableness simpliciter standard.
[6] The Minister, basing himself on such cases as Judge v. Canada (Minister of Citizenship and Immigration), 2004 FC 1089, submits that the standard of judicial review is patent unreasonableness. However, it has also been held that the standard is reasonableness simpliciter in Chaves v. Canada (Minister of Citizenship and Immigration), 2005 FC 193, [2005] F.C.J. No. 232 (QL) and Filigrana v. Canada (Minister of Citizenship and Immigration), 2005 FC 1447, [2005] F.C.J. No. 1765 (QL).
[7] It would be overly simplistic to hold the view that determinations with respect to all issues pertaining to state protection are subject to the same standard. As the Federal Court of Appeal noted in Sketchley v. Canada (Attorney General), 2005 FCA 404, [2006] 3 F.C.R. 392, the pragmatic and functional approach to judicial review is case specific in nature. Therefore, as Mr. Justice Linden said at paragraph 50:
…as complex as it may be, this analysis must be applied anew with respect to each decision, and not merely each general type of decision of a particular decision maker under a particular legislative provision. Even where it may appear that the issue has been settled in the jurisprudence, "[t]here is no shortcut past the components of the pragmatic and functional approach" (Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, at paragraph 21 (Ryan)).
[8] As Mr. Justice Phelan noted in Pisniak v. Canada (Minister of Citizenship and Immigration), 2006 FC 824:
[8] With respect to the standard of review regarding state protection, there are two aspects which attract two different standards. The question of whether there is adequate state protection is generally an issue of fact (see Nawaz v. Canada (Minister of Citizenship and Immigration), 2003 FC 1255, [2003] F.C.J. No. 1584 (QL) and Ali v. Canada (Minister of Citizenship and Immigration), 2004 FC 1449, [2004] F.C.J. No. 1755 (QL)) which attracts a standard of patent unreasonableness. The question of whether the Applicant adequately availed herself of state protection is one of mixed law and fact because the Board must apply factual findings to the legal standard established in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689: "clear and convincing confirmation of a state's inability to protect" the person.
[9] It is clear that the standard of review is not correctness. Sometimes it is not necessary to choose between the other two standards. I propose to analyze the decision to determine whether or not it is reasonable. If it is unreasonable, then a further analysis will have to be done to determine exactly how unreasonable it is.
STATE PROTECTION
General Principles
[10] The RPD panel correctly and succinctly summarized the general principles of state protection. The test is an objective one, with the burden of proof on the claimant. As per Ward, above, there must be “clear and convincing” evidence that state protection would not be reasonably forthcoming. In making this projection, one must take into account the democratic attributes of the state, whether there has been a breakdown of state apparatus, what has happened to the individual in the past, and what has happened to similarly situated individuals.
State Protection Available to the Claimant
[11] As the panel noted, its acceptance of her past physical and verbal abuse
…in itself is not sufficient for positive determination of her claim. Sadly, spousal or partner abuse takes place in all countries, and being a victim of spousal or partner abuse is not in itself sufficient cause to seek surrogate protection as a refugee in another country. Even accepting that all the required subjective fear exists, the lack of objective basis would cause such claims to fail. In the case at hand, I must consider whether the claimant has provided clear and convincing proof of the inability or unwillingness of the state of Dominica to protect her against her former partner.
[12] The panel member reviewed Dominica’s historical record on domestic violence and traditional social norms, and said there was little doubt that domestic violence was deeply rooted in that country’s culture. However, the question is whether Ms. Scotland “has good grounds to fear persecution in the future” (Mileva v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 398 (C.A.), per Mr. Justice Pratte at paragraph 8).
[13] The panel found, and it is not contested, that Dominica is a multi-party parliamentary democracy, in charge of its territory, with an independent judiciary. The police are controlled and responsive to the democratically elected government.
[14] At the beginning of the hearing, the panel member stated that he had read the documentary evidence on record with the IRB, as well as the material submitted by Ms. Scotland. He said: “they submit a mix of perspectives.” Having read the same material, I agree.
[15] Ms. Scotland complained to the police. They warned her partner, which was the standard initial procedure. She complained again and again, and although she says they did nothing, she testified at her hearing that the police laid criminal charges. It is in that context that I must consider the “to whom it may concern” letter from the police issued in January 2005. It states that she first complained to the police in August 2003. She requested a police warning which they issued. Later that month, she made numerous reports of incidents reoccurring; however she had since left for Canada. Although she has been in touch with the investigating officer, “…no progress has been made on the incident of threat and abuse.” Her former partner would never be convicted if she does not testify against him and subject herself to cross-examination.
[16] Ms. Scotland feared that the police would do nothing because her former partner is a private investigator who, although not a policeman, is well known to them and said to work out of the police station. However, the panel member’s finding that there was no evidence he was in a position to influence the police was not unreasonable, taking into account in fact what the police have done.
[17] Ms. Scotland provided documentary evidence in the form of newspaper reports, which recounted the stories of two other women, one of whom was scalded by boiling water, and the other killed. However, the facts of those cases were quite different, and the panel member cannot be criticized for not having specifically referred to them.
[18] What he did specifically refer to was a response to information request by the IRB itself which drew on various sources and the United States Department of State Report on Dominica. He emphasized that in 2001 a Protection Against Domestic Violence Act was enacted which allowed abused persons to appear before a magistrate without an attorney and request a protective order. Police enforcement of these orders increased, and officers have received training. Apart from the police, who did not fail her in this case, and the courts, there are also non-governmental organizations which are willing and able to assist battered women and help them apply to the state, be it the executive branch (the police) or the judiciary, for protection (Pal v. Canada (Minister of Citizenship and Immigration) 2003 FCT 698, [2003] F.C.J. No. 894 (QL). The panel also noted that state protection need not be perfect, as no state can guarantee protection. However, it found that it was adequate in this case. This is not, of course, to say that one must prove one’s point, as per Ward, above, by returning to danger and being killed.
DISPOSITION
[19] As stated by Mr. Justice Iacobucci in Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748 at paragraph 56:
An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it. [Emphasis added.]
[20] He added Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247 at paragraph 46:
Judicial review of administrative action on a standard of reasonableness involves deferential self-discipline. A court will often be forced to accept that a decision is reasonable even if it is unlikely that the court would have reasoned or decided as the tribunal did (see Southam, supra, at paras. 78-80). If the standard of reasonableness could "float" this would remove the discipline involved in judicial review: courts could hold that decisions were unreasonable by adjusting the standard towards correctness instead of explaining why the decision was not supported by any reasons that can bear a somewhat probing examination.
[21] “Applying a somewhat probing examination…” as per Southam, above, at paragraph 59, I have come to the conclusion that the decision was not unreasonable, and so need give no further consideration to the standard of review. There was ample material before the panel to justify the reasons it gave in coming to its conclusion. It does not necessarily follow that a decision to the contrary would have been unreasonable. Another panel may have weighed the evidence somewhat differently, and have come to a different conclusion .The issue before the Court is not what it would have done if it were in position to make an independent assessment of country conditions. This judicial review is not an appeal where country conditions may be considered de novo.
ORDER
THIS COURT ORDERS that the application for judicial review of the decision of the Immigration and Refugee Board dated 20 December 2005 is dismissed. There is no question of general importance to certify.
“Sean Harrington”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-197-06
STYLE OF CAUSE: Jeanette Augustina Scotland AKA Jeanette August Scotland v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: October 18, 2006
APPEARANCES:
|
Clementina Costa-D’Aguiar
|
|
|
David Cranton
|
SOLICITORS OF RECORD:
|
Clementina Costa-D’Aguiar Barrister & Solicitor Toronto, Ontario
|
|
|
John H. Sims, Q.C. Deputy Attorney General of Canada
|