Judgments

[1997] 1 F.C. 608

A-226-94

Secretary of State of Canada (Appellant)

v.

Ali Mohammed Siad (Respondent)

Indexed as: Siad v. Canada (Secretary of State) (C.A.)

Court of Appeal, Isaac C.J., McDonald J.A. and Gray D.J.—Vancouver, November 1; Ottawa, December 3, 1996.

Citizenship and Immigration — Immigration practice — Evidence — Appellant denied refugee status as serious reasons to believe had committed crimes against humanity and acts contrary to principles of United Nations — Minister’s disclosure obligation regarding anticipated evidence of witnesses — Admissibility of expert evidence where expert not cross-examined.

Evidence — Immigration — Proceedings before Convention Refugee Determination Division — Minister’s disclosure obligation regarding anticipated evidence of two witnesses satisfied where summary given over telephone — Admissibility of expert evidence where expert not cross-examined.

Practice — Affidavits — Convention refugee determination — On appeal from CRDD, Trial Judge holding expert’s affidavit inadmissible — Tribunal relieved by statute from technical rules binding courts — Affidavit relevant to allegations against claimant — Affidavit originating in State of New Jersey — Where no evidence as to requirements for valid affidavit in originating State, Judge cannot conclude document not affidavit.

The respondent was the son of deposed Somali President Mohammed Siad Barre. The Convention Refugee Determination Division (the Tribunal) found that, although the respondent had a well-founded fear of persecution if returned to Somalia, he was excluded from refugee protection because there were serious reasons for considering that he had committed crimes against humanity and acts contrary to the purposes and principles of the United Nations. The finding of exclusion depended upon the finding that the respondent had served as governor of Lanta Bur prison, where political prisoners were tortured, abused and killed. That finding was based on the evidence of three persons, two lay witnesses and one expert in Somali history.

On judicial review, the Trial Division set aside the determination of the Tribunal on the basis that it had breached natural justice when it admitted the evidence of the three witnesses. It found that the evidence of the two lay witnesses should not have been admitted because the disclosure provided by the Minister had been inadequate. It also held that the admission of the expert evidence, in the form of a report, was unfair since it was unsworn, and it contained information of unknown source obtained from unidentified informants. This was an appeal from that decision.

Held, the appeal should be allowed.

A high standard of natural justice applies in cases such as this one, where the Minister takes an adversarial position in relation to a refugee claimant. Where the Minister alleges exclusion under Article 1F of the Convention, the Minister does owe a duty to disclose information relevant to the refugee claim. In the circumstances of this case, the Minister’s obligation was satisfied. The Minister’s representative had provided to respondent’s counsel, by telephone, a summary of the anticipated evidence of his witnesses. If counsel for the claimant considered the Minister’s disclosure inadequate, he should have objected to it before the hearing began, as he had ample opportunity to do. The Tribunal does not owe an independent duty to require disclosure where counsel neglects to request it. On the facts, the opportunity afforded to counsel to question the witnesses was reasonable. Furthermore, counsel cannot be permitted, by a lack of diligence, to delay the proceeding.

The presiding Judge also erred when he held that the expert’s affidavit was inadmissible. Subsection 68(3) relieves the Tribunal of the legal and technical rules of evidence which would bind a court. In this case, the expert’s affidavit was relevant to the allegations against the respondent. The Tribunal was therefore entitled to admit the statement, as it did, if it considered it to be credible and trustworthy in the circumstances, as it did, and to give it the weight that it did. The affidavit originated in New Jersey. In the absence of evidence respecting the requirements for validity of an affidavit in New Jersey, there was no evidence upon which the presiding Judge could conclude that the document was not an affidavit. The credibility of the deponent was not directly at issue, therefore an opportunity for cross-examination was not essential to the fairness of the hearing.

Furthermore, the admission of the expert evidence was not unfair in the circumstances of this case, especially since counsel for the claimant was afforded every opportunity to raise objections to its admission before the hearing, to request cross-examination before the hearing, to call rebuttal evidence, and to make submissions as to the weight that the Tribunal should attach to it (which he did in fact). Thus, the presiding Judge erred in reversing the Tribunal for this reason.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1(2)(d) (as enacted by S.C. 1990, c. 8, s. 5).

Immigration Act, R.S.C., 1985, c. I-2, ss. 68(2) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18), (3) (as am. idem), 69.1(5)(a) (as enacted idem; S.C. 1992, c. 49, s. 60).

United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6., Art. 1F(a),(c)

CASES JUDICIALLY CONSIDERED

APPLIED:

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; Fajardo v. Canada (Minister of Employment & Immigration) (1993), 21 Imm. L.R. (2d) 113; 157 N.R. 392 (F.C.A.).

DISTINGUISHED:

Kusi v. Minister of Employment and Immigration (1993), 65 F.T.R. 58; 19 Imm. L.R. (2d) 281 (F.C.T.D.); Cheung v. Minister of Employment and Immigration, [1981] 2 F.C. 764 (1981), 122 D.L.R. (3d) 41; (1987), 36 N.R. 563 (C.A.).

CONSIDERED:

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) 93; 68 C.C.C. (3d) 1; 8 C.R. (4th) 277; 130 N.R. 277; 8 W.A.C. 161.

REFERRED TO:

Akthar v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 32 (1991), 50 Admin. L.R. 153; 14 Imm. L.R. (2d) 39; 129 N.R. 71 (C.A.); Ahani v. Canada (1996), 37 C.R.R. (2d) 181 (F.C.A.); Tax Time Services Ltd. v. National Trust Co. (1991), 3 O.R. (3d) 44; 2 W.D.C.P. (2d) 194 (Gen. Div.); Dionisopoulos v. Provias (1990), 71 O.R. (2d) 547; 45 C.P.C. (2d) 116 (H.C.); Breivik, Scorgie, Wasylko et al. v. Great Atlantic & Pacific Company of Canada Ltd. et al. (1987), 58 O.R. (2d) 794; 17 C.P.C. (2d) 81 (H.C.); Blackmore v. Slot All Ltd. (1985), 18 C.P.C. (2d) 181 (Ont. H.C.); Leerentveld v. McCulloch (1985), 4 C.P.C. (2d) 26 (Ont. Master); Mahendran v. Canada (Minister of Employment & Immigration) (1991), 14 Imm. L.R. (2d) 30; 134 N.R. 316 (F.C.A.); Giron v. Minister of Employment and Immigration (1992), 143 N.R. 238 (F.C.A.); Rajaratnam v. Minister of Employment and Immigration (1991), 135 N.R. 300 (F.C.A.); Canada (Minister of Employment & Immigration) v. Dan-Ash (1988), 5 Imm. L.R. (2d) 78; 93 N.R. 33 (F.C.A.); Okyere-Akosah v. Minister of Employment and Immigration (1992), 157 N.R. 387 (F.C.A.); Villarroel v. Minister of Employment and Immigration (1979), 31 N.R. 50 (F.C.A.); Maldonado v. Minister of Employment and Immigration, [1980] 2 F.C. 302 (1980), 31 N.R. 34 (C.A.).

AUTHORS CITED

Laskin, John I. “Disclosure Obligations of Tribunals and Counsel Representing Them”, in Anisman, Philip and Robert F. Reid. Administrative Law: Issues and Practice. Scarborough: Carswell, 1995.

APPEAL from a Trial Division judgment (Siad v. Canada (Secretary of State) (1994), 77 F.T.R. 48 (F.C.T.D.)) setting aside a determination of the Convention Refugee Determination Division that the respondent was not a Convention refugee. Appeal allowed.

COUNSEL:

Leigh A. Taylor for appellant.

William J. MacIntosh for respondent.

SOLICITORS:

Deputy Attorney General of Canada for appellant.

Wittchen, Schiffer & MacIntosh, Vancouver, for respondent.

The following are the reasons for judgment rendered in English by

McDonald J.A.: This is an appeal as of right from a judgment of the Trial Division, pronounced on April 12, 1994 [(1994), 77 F.T.R. 48], which set aside a determination of the Convention Refugee Determination Division (the Tribunal) that the respondent, Ali Mohammed Siad, is not a Convention refugee.

This appeal raises two issues: first, whether the information provided by the Minister regarding the anticipated evidence of two witnesses was adequate, and secondly, whether the written expert evidence of Professor Siad Samatar was admissible even though he was not cross-examined.

FACTS

Background

The respondent, Ali Mohammed Siad, is the eldest son of deposed Somali President Mohammed Siad Barre. The Tribunal found that Mr. Siad has a well-founded fear of persecution if returned to Somalia. Nonetheless, it also found that he is excluded from refugee protection because there were serious reasons for considering that he has committed crimes against humanity, and that he is guilty of acts contrary to the purposes and principles of the United Nations, as stated in the exclusionary clauses, paragraphs F(a) and F(c) of Article 1 of the Convention.[1]

The finding of exclusion by the Tribunal depended upon its finding of fact that, during the 1980s, the respondent had served as governor of Lanta Bur prison. It is not disputed that, during the Barre regime, Lanta Bur was a site for detention of political prisoners, nor is it disputed that torture, abuse and killing of prisoners were common there. The respondent denies that he ever served in a position of authority at the prison, although he admits that his father had him imprisoned there for eighteen months during the 1970s. The factual determination that the respondent had served as governor was based upon the evidence of three persons. Two lay witnesses, Ali Mohamed Roble and Aweis Aware Issa, testified, among other things, that they had worked near the prison, had seen the respondent in a position of authority there, and knew that he was governor. The finding by the Tribunal was also based on a report of Professor Siad Samatar, an expert in Somali history who teaches in the Department of History at Rutgers University. In his evidence, Professor Samatar attested that Mr. Siad had served as governor of Lanta Bur during the 1980s.

Disclosure of witness statements

On January 15, 1992, five days before the respondent’s hearing was scheduled to commence, the Minister’s representative informed respondent’s counsel that he would be calling two witnesses who would testify as to Mr. Siad’s role as Chief Custodian of the Lanta Bur prison. The next day, January 16, respondent’s counsel responded with a faxed request for the names of witnesses and the evidence that they were expected to give. He referred the Minister’s representative to the recent Supreme Court of Canada decision in R. v. Stinchcombe,[2] but did not specifically request will-say statements or disclosure of previous statements by the witnesses or others contacted by the Minister during its investigation. The same day, the Minister’s representative telephoned respondent’s counsel and advised him of the names of the witnesses, the period to be covered by their evidence, their places of work in Somalia, the fact that they would testify that Mr. Siad had been governor of Lanta Bur, that one of them had had official dealings at the prison and that both had personal knowledge that Mr. Siad had been the governor of Lanta Bur. Respondent’s counsel made no further disclosure requests until the hearing.

The next day, January 17, 1992, counsel for the claimant sent a letter by fax to the Tribunal requesting an adjournment as the claimant had been hospitalized in Toronto and was unable to travel to Vancouver. Counsel attended at the Tribunal on January 20, and the hearing was rescheduled for February 20, 1992.

At the hearing, counsel for the claimant learned that the lay witnesses had been accepted as Convention refugees. On the first day of the hearing, he sought disclosure of their personal information forms (PIFs); the Tribunal denied this request on the ground that they were not relevant to the determination of the respondent’s claim. On the second day of the hearing, counsel renewed his request for disclosure of the witnesses’ PIFs and added a request, based on Stinchcombe,[3] that the Minister’s representative disclose all of the information he had obtained in the investigation of the respondent’s claim. The presiding member refused this request, holding that natural justice did not require such disclosure. He stated:

The rules of evidence, as you are aware, are in this hearing not the same as in a court of law and all we have to protect is the right of the Claimant that he is given a fair hearing and the [sic] natural justice should not be denied and the evidence we are going to hear should be relevant and reliable and that’s all we are here [sic]. And it should be heard expeditiously, as you just pointed out. I agree with you.

I think at this time, your submission regarding the production of notes or the Personal Information Form of the witness here is not the issue. We made a decision yesterday regarding this issue that we won’t order this witness to produce the Personal Information Form, so same will apply to the rest of the submissions you have regarding the notes ….

And we do not find—I’m sure my colleague agrees with me that we are [not] doing anything which is denying the Claimant natural justice, so we will proceed. The ruling is we won’t order the representative of the Minister of Immigration to produce any further notes of his investigation at this time.[4]

Admissibility of Professor Samatar’s affidavit

The Minister’s representative obtained Professor Samatar’s report on January 3 and a supplementary letter on January 9, 1992. The report contained opinions that Mr. Siad had been the governor of Lanta Bur; the supplementary letter indicated that the sources of his information had been “fifteen well-informed Somali informants”. The Minister’s representative provided copies of the report and letter to respondent’s counsel on January 12, 1992, and invited counsel to contact him if he had any questions. The only response of respondent’s counsel was to request a copy of the letter by which the Minister had requested Professor Samatar’s report. He made no requests and raised no objections regarding the report until the commencement of the hearing on February 20, 1992, when he objected to the admission of the report and letter unless he could cross-examine their author. The Minister’s representative replied that he could not and would not make Professor Samatar available for cross-examination because the belated request by the respondent’s counsel was unreasonable, since he had known about the report for over a month but had made no request for cross-examination. The transcript of the proceedings before the Tribunal reflects the explanation given by the Minister’s representative:

Mr. Kent: Well, first of all, I should point out to the Board that I provided the affidavit of Professor Samatar to him, to Mr. MacIntosh, January 10th, I believe it was, 1992, I served it on him with the accompanying letter to it, and at that point I requested that he advise me if he had any concerns or questions regarding the evidence. He has never requested me to make Professor Samatar available for cross-examination. I’ve had discussions with him on two occasions, at least, since then, and he has never made any sort of request that he wanted him to be produced. Consequently, he’s not going to be produced because no request was made. It’s a little late in the day, in my view, to now say he wants to cross-examine him when he’s had this material for over a month. It is not a reasonable request at this point, and obviously I’m not in a position to produce him, having never heard of this before.[5]

The Tribunal admitted the statements, saying, “it depends on the weight that we give to the particular document.”[6]

DECISION OF THE TRIAL DIVISION

On judicial review in the Trial Division, the presiding Judge, with some hesitation, set aside the determination of the Tribunal on the basis that it had breached natural justice when it admitted the evidence of Mr. Roble and Mr. Issa and the report of Professor Samatar. He held that the evidence of Mr. Roble and Mr. Issa should not have been admitted because the disclosure provided by the Minister had been inadequate. He also held that the admission of Professor Samatar’s evidence in the absence of cross-examination was unfair since it was unsworn, and it contained information of unknown source obtained from unidentified informants.

The presiding Judge held that when the Minister alleges exclusion, he must provide adequate disclosure to the claimant. The information provided to the respondent in this case was, he said, insufficient to discharge the Minister’s disclosure obligation. He concluded:

… fairness does require that, where the Minister as here is intending to prove that there are serious reasons for considering that a claimant has been guilty of crimes against humanity or acts contrary to the principles of the United Nations, he should make every reasonable effort to provide claimant’s counsel with copies of statements he may have from witnesses or records of interviews with them or at least “will-say” statements. The kind of cursory information given here over the telephone on January 15, 1992, was not enough. If counsel for the Minister has not been forthcoming in making such disclosure a tribunal should not proceed, where the claimant so requests, until it is made.[7]

Consequently, he held that the Tribunal, by admitting this evidence without proper disclosure, had committed a reviewable error.

The presiding Judge also held that the Tribunal had erred by admitting Professor Samatar’s evidence without requiring that Professor Samatar be made available for cross-examination. He found that the Tribunal had demonstrated “confusion” when it referred to Professor Samatar’s unsworn report as an “affidavit”. The presiding Judge observed that respondent’s counsel should have indicated before the hearing that he would be insisting upon cross-examination of the deponent. Nonetheless, in the circumstances, he held, the admission of the report had been unfair. Unlike articles or books which attest to general facts, Professor Samatar’s evidence identified this claimant as having performed a particular role. Since the evidence was unsworn, not based on firsthand knowledge, and relied on information of unknown origin obtained from unidentified informants, its admission was unfair and should not have been admitted unless the introduction of viva voce evidence was impossible, and there was no such showing before the Tribunal.

ANALYSIS

Issue 1: Disclosure obligation of the Minister

In Singh et al. v. Minister of Employment and Immigration,[8] the Supreme Court of Canada held that a high standard of natural justice applies in cases such as this one, where the Minister takes an adversarial position in relation to a refugee claimant.

Paragraph 69.1(5)(a) of the Immigration Act[9] requires that the Tribunal afford the refugee claimant a “reasonable opportunity” to present evidence, cross-examine witnesses, and make representations. Although Stinchcombe, a criminal case, does not apply directly in the immigration context, it is nonetheless instructive.[10] Counsel for the Minister conceded in oral argument, correctly, in my respectful view, that where the Minister alleges exclusion under Article 1F of the Convention, the Minister does owe a duty to disclose information relevant to the refugee claim. This concession is consistent with some of the literature regarding disclosure in the administrative context.[11]

Without deciding the overall content and parameters of the Minister’s duty to disclose in exclusion cases, it is clear that in the particular circumstances of this case, the Minister’s disclosure obligation was satisfied. More than a month before the hearing, the Minister’s representative provided to respondent’s counsel a summary of the anticipated evidence of his witnesses over the telephone; the testimony of the witnesses ultimately conformed to this summary. If counsel for the claimant considered the Minister’s disclosure inadequate, he should have objected to it before the hearing began, as he had ample opportunity to do.

In the criminal as well as the civil context, the obligation to disclose arises only upon the request of opposing counsel.[12] Thus the Minister’s disclosure obligation arises only when a claimant’s counsel requests disclosure. The Tribunal does not owe an independent duty to require disclosure where counsel neglects to request it. If the Minister fails to comply with his disclosure obligation, it is reasonable to expect the claimant’s counsel to object in a timely manner and to draw this failure to the attention of the Tribunal at the earliest opportunity. Counsel’s failure to do so should be an important factor in determining whether a new hearing should be ordered.[13]

This case was not one in which counsel for the respondent diligently sought disclosure, specifically requesting interview notes and will-say statements of witnesses and others interviewed by the Minister. On the contrary, counsel for the respondent was dilatory in seeking disclosure, then sought to delay the proceedings with an eleventh-hour disclosure request. While the last-minute disclosure request was denied, counsel was afforded ample opportunity to cross-examine the witnesses with regard to their work in Somalia and their knowledge of the claimant, and he did so.[14] On the facts, the opportunity afforded to counsel to question the witnesses was reasonable.

The Tribunal is required by subsection 68(2) [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18] of the Immigration Act to conduct hearings fairly and expeditiously:

68. …

(2) The Refugee Division shall deal with all proceedings before it as informally and expeditiously as the circumstances and the considerations of fairness permit.

Counsel cannot be permitted, by his or her lack of diligence, to delay the proceeding. It was not unfair for the Tribunal to deny counsel’s belated request for disclosure when to grant it would have resulted in delay which was entirely preventable by the exercise of reasonable diligence. Under the circumstances, the disclosure by the Minister’s representative was adequate and the presiding Judge erred when he concluded otherwise.

Counsel for the respondent also argued that the Tribunal ought to have ordered disclosure of the witnesses’ personal information forms. However, he was also dilatory in seeking this disclosure. Even if the Minister’s disclosure obligation could arguably extend to include witnesses’ personal information forms upon which the Minister does not intend to rely (an issue that does not arise for decision here and on which I express no opinion), counsel’s lack of diligence likewise disentitled him from obtaining such disclosure, which he failed to request until the first day of the hearing.

Issue 2: Admissibility of Professor Samatar’s affidavit

The presiding Judge also erred when he held that Professor Samatar’s affidavit was inadmissible, as his conclusion robbed subsection 68(3) [as am. idem] of the Immigration Act of its meaning. Subsection 68(3) clearly relieves the Tribunal of the legal and technical rules of evidence which would bind a court. The subsection reads:

68. …

(3) The Refugee Division is not bound by any legal or technical rules of evidence and, in any proceedings before it, it may receive and base a decision on evidence adduced in the proceedings and considered credible or trustworthy in the circumstances of the case.

In this case, Professor Samatar’s affidavit was relevant to the allegations against the respondent. The Tribunal was therefore entitled to admit the statement if it considered it to be credible and trustworthy in the circumstances. Mahoney J.A. recently held for this Court in Fajardo v. Canada (Minister of Employment & Immigration):

By s. 68(3) of the Immigration Act, the Refugee Division is not bound by legal or technical rules of evidence and it may base a decision on evidence adduced in the proceedings which it considers credible and trustworthy in the circumstances. If the tribunal here is suggesting that the affidavit evidence of patently respectable deponents as to facts within their knowledge may be discounted because, in the very nature of the process, the deponents are not available to be cross-examined, the tribunal is wrong. It is not for the Refugee Division to impose on itself or claimants evidentiary fetters of which Parliament has freed them.[15]

Despite the hearsay frailties of Professor Samatar’s evidence highlighted in the reasons of the presiding Judge, the Tribunal was entitled to find this evidence credible and trustworthy, and to base its decision upon on it.[16] The Tribunal is uniquely situated to assess the credibility of a refugee claimant; credibility determinations, which lie within “the heartland of the discretion of triers of fact”,[17] are entitled to considerable deference upon judicial review and cannot be overturned unless they are perverse, capricious or made without regard to the evidence.[18] In this case, the credibility determination was made with regard to the evidence, and the Tribunal gave reasons to prefer Professor Samatar’s evidence to that of the respondent, as it is required to do.[19] The Tribunal was entitled to admit this evidence and to give it the weight that it did.

The presiding Judge also erred in fact when he characterized the Tribunal as having been “confused” in describing Professor Samatar’s report as an “affidavit”. The document is entitled “affidavit”. It indicates that it was deposed “In the Matter of the application for Asylum of Siad Ali Mohammed”. It indicates as well on the first page that Professor Samatar has been “duly sworn”. It bears the signature of Professor Samatar and another signature in a different hand. While it is true that the document does not contain a jurat, as one would expect to find in an affidavit sworn in Canada, this document was sent by the professor from the state of New Jersey in the United States. There was no evidence before the Tribunal or before this Court respecting the requirements for validity of an affidavit in New Jersey; thus there was no evidence upon which the presiding Judge could conclude that the document was not an affidavit, as it purported to be on its face, or that it was unsworn.

In support of his contention that Professor Samatar’s affidavit should not have been admitted because he had not been made available for cross-examination, counsel for the respondent relied upon Cheung v. Minister of Employment and Immigration[20]; and Kusi v. Minister of Employment and Immigration.[21] However, in my view these cases are distinguishable. In Kusi and Cheung, immigration tribunals were required to permit cross-examination of immigration officials who alleged in their written statements that they had heard the claimant make damaging statements or admissions which the claimant denied having made. In these cases, the credibility of the deponent was directly in issue; therefore, an opportunity for cross-examination was essential. In Professor Samatar’s affidavit, by contrast, the deponent does not allege any prior statements by the claimant. Rather, he describes the claimant’s role in Somalia on the bases of his expert knowledge of the Somali political situation and his interviews with the informants. In the circumstances, an opportunity for cross-examination is, in my view, not essential to the fairness of the hearing.

Furthermore, the admission of Professor Samatar’s evidence was not unfair in the circumstances of this case, especially since counsel for the claimant was afforded every opportunity to raise objections to its admission before the hearing, to request cross-examination before the hearing, to call rebuttal evidence, and to make submissions as to the weight that the Tribunal should attach to it (which he in fact did).[22] Thus, the presiding Judge erred in reversing the Tribunal for this reason.

CONCLUSION

For all of these reasons, this appeal will be allowed, the judgment of the Trial Division will be set aside and the application for judicial review will be dismissed.

Isaac C.J.: I agree.

Gray D.J.: I agree.

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