A-777-90
Mohammed Inman Akthar (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
A-780-90
Saijad Hussein (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
A-942-90
Mohammed Azad (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
INDEXED AS: AKTHAR V. CANADA (MINISTER OF EMPLOY
MENT AND IMMIGRATION) (CA.)
Court of Appeal, Pratte, Hugessen and Desjardins
JJ.A.—Edmonton, March 13 and 14; Ottawa,
June 7, 1991.
Immigration — Refugee status — Extraordinary delays
between time of refugee status claims and first stage Tribunal
decisions finding no credible basis — That applicants may
have passed credible basis test had hearing been held promptly
not impacting on justice of matter — Purpose of refugee
system not to provide easy means for immigrants to find more
desirable country of residence — If applicants no longer
reasonably fearing persecution in homeland, cannot complain
of unjust treatment in that refugee status claims denied —
Possibility delay in holding refugee hearing could give rise to
Charter remedy not excluded.
Constitutional law — Charter of Rights — Life, liberty and
security — Refugee status claims found to lack credible basis
following extraordinary delay in first stage decision — Appli
cants would probably have passed credible basis test if hearing
held promptly — Whether unreasonable delay in processing
claims breaching Charter right to fundamental justice and
amounting to cruel and unusual treatment — Refugee claim
ants not enjoying Charter rights of criminal accused —
Claimants having to satisfy credible basis test — No Charter
remedy for delay in absence of prejudice — No prejudice to
applicants if no longer reasonable to fear persecution in home-
land — Possibility delay in processing refugee claim could
give rise to Charter remedy not excluded.
These were applications under Federal Court Act, section 28
against a first stage Tribunal's decision finding applicants not
to have a credible basis to their refugee status claim. The three
applicants, all Fijian nationals of Indian ethnic origin, fled their
country in 1987 due to the political situation then prevailing
and entered Canada towards the end of that year. Their claims
for refugee status having been rejected almost three years later,
they alleged that the unreasonable delay in the processing of
such claims breached their rights to fundamental justice under
the Canadian Charter of Rights and Freedoms, section 7 and
amounted to cruel and unusual treatment under section 12. The
issue is whether the considerable length of time between the
original formulation of the applicants' refugee claims and the
first stage or screening decision can be a source of remedy for
them.
Held, the applications should be dismissed.
The applicants cannot benefit from the Immigration Act
since it does not set a fixed time frame within which a credible
basis hearing must be held. The process should, nevertheless, be
as expeditious as possible. The recent Immigration Act amend
ments were intended to streamline the refugee determination
process, facilitating access for genuine claimants while quickly
rejecting claims that were false. Even where the statute does set
out times, failure by a tribunal to accomplish a duty within a
legislated time span will generally have the effect of forcing it
to remedy the defect. Only in exceptional circumstances would
it result in the out of time decision being found a nullity. In the
instant case, nullifying the untimely decisions would be of no
help to the applicants.
The applicants' assertion, that delay in the determination of
their claims has resulted in a breach of Charter rights, met two
insuperable obstacles. In the first place, they were not in the
same legal position as an accused person and did not enjoy the
specific protection afforded by Charter, paragraph 11(b). The
specific dispositions of section 11 are only particular applica
tions of the principles of fundamental justice enshrined in
section 7: R. v. Askov, [1990] 2 S.R.C. 1199. The applicants
were neither charged nor claimed against by the state; rather,
they were asserting claims against the state which has no
obligation of proving anything against them. It was the appli
cants who had to prove, as a threshold test, that they had a
credible basis to their claims. Unlike an accused person, they
enjoyed no presumption in their favour and could never attain
refugee status unless they satisfied that test.
The second obstacle of the applicants' assertion is that a
delay in the resolution of their refugee status claims would not
necessarily be unfair to them. Any claim of a Charter breach
based on delay must depend on the claimant having been
prejudiced. The purpose of the refugee system is not to provide
an easy means for immigrants to find a more desirable country
of residence but rather to furnish a safe haven for those fearing
persecution in their homeland. Accordingly, the justice of the
matter was not impacted upon by the fact that applicants may
have passed the credible basis test had it been held promptly. If
they no longer have reason to fear persecution in their country
of origin, they cannot complain of unjust treatment in that their
claims to refugee status have been denied. Even in criminal
cases, a court is not justified, by the mere passage of time, to
find that there has been a denial of justice without taking all
the other circumstances into account. In the present case, there
is no indication, either by evidence or inference from the
circumstances, that the applicants have suffered prejudice or
unfairness because of the delay, or that they have suffered from
cruel or unusual treatment at the hands of Canadian authori
ties. The possibility that delay in the conduct of a refugee
hearing could give rise to a Charter remedy should not, how
ever, be excluded.
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. 7, I1(b), 12.
Federal Court Act, R.S.C., 1985, c. F-7, s. 28.
Immigration Act, R.S.C., 1985, c. I-2.
CASES JUDICIALLY CONSIDERED
FOLLOWED:
R. v. Askov, [1990] 2 S.C.R. 1199; (1990), 75 O.R. (2d)
673; 74 D.L.R. (4th) 355; 59 C.C.C. (3d) 449; 79 C.R.
(3d) 273; 49 C.R.R. I; 42 O.A.C. 81; W.K.L. v. Canada,
21616, judgment dated 16/5/91, S.C.C., not yet reported.
REFERRED TO:
Misra v. College of Physicians & Surgeons of Saskatch-
ewan (1988), 52 D.L.R. (4th) 477; [1988] 5 W.W.R. 333
(Sask. C.A.); Saskatchewan Human Rights Commission
v. Kodellas (1989), 60 D.L.R. (4th) 143; [1989] 5
W.W.R. 1 (Sask. C.A.); Mileva v. Canada (Minister of
Employment and Immigration), A-726-90, Pratte, Des-
jardins and Marceau JJ.A., judgment dated 2 5 / 2 /91,
F.C.A., not yet reported; Canada (Minister of Employ
ment and Immigration) v. Paszkowska, A-724-90,
Hugessen J.A., judgment dated 16/4/91, F.C.A., not yet
reported.
AUTHORS CITED
Canada. House of Commons Debates, vol. IX, 1st Sess.,
33rd Parl., 35 Eliz. II, 1986, pp. 13482-13483.
Canada. House of Commons Debates, vol. XIII, 2nd
Sess., 33rd Parl., 37 Eliz. II, 1988, p. 16095.
COUNSEL:
Andriy J. Semotiuk and Linda Long for
applicants.
Kirk Lambrecht for respondent.
SOLICITORS:
Andriy J. Semotiuk, Edmonton, for appli
cants.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
HUGESSEN J.A.: These three section 28 applica
tions of the Federal Court Act [R.S.C., 1985, c.
F-7] were argued together. They raise only one
serious point.
The three applicants are all Fijian nationals of
Indian ethnic origin. All three fled their country at
the time of the coups and related disturbances
there in 1987. They claimed refugee status in
Canada. They were found by a first stage Tribunal
not to have a credible basis for their claims. The
delays between their first entry into Canada claim
ing refugee status and the decision of the first
stage Tribunal varied from just over two and a half
years to just under three years.'
' Mr. Akthar entered Canada December 13, 1987 and was
found not to have a credible basis to his claim July 17, 1990.
Mr. Hussein entered Canada November 5, 1987 and was found
not to have a credible basis to his claim on July 17, 1990. Mr.
Azad entered Canada September 6, 1987 and was found not to
have a credible basis to his claim on August 8, 1990.
The question which arises for determination is
whether this quite extraordinary length of time
between the original formulation of a refugee
claim and the "first stage" or "screening" decision
can be the source of any remedy for the present
applicants. After anxious consideration I have con
cluded that it cannot, at least in the circumstances
of the present case.
In the first place, it seems evident that the
Immigration Act [R.S.C., 1985, c. I-2] itself can
provide no succour to the applicants. While the
Act does not set a fixed time frame within which a
credible basis hearing must be held, I am satisfied
that the legislative scheme envisages that the pro
cess should be as expeditious as possible. The
announced purpose of the amendments to the
Immigration Act was to streamline and update the
refugee determination process so as to facilitate
access for genuine claimants while at the same
time deterring perceived abuses by quickly turning
back those claimants who were not genuine.
In introducing the amendments at second read
ing the Minister of Employment and Immigration,
the Honourable Barbara McDougall, stated as
follows:
[Translation]
A more efficient refugee determination system, with greater
emphasis on fairness and due process, can only serve to help
those in genuine need of our protection and those who play by
the rules.
[English]
... We want to be able to deal with those who really need our
protection as quickly and humanely as possible. The Govern
ment believes that Bill C-55, in concert with the control
initiatives of Bill C-84, can achieve the stable, fair and efficient
system refugees and Canadians clearly deserve. 2 [Emphasis
added.]
At an earlier stage the Minister of State for
Immigration, the Honourable Walter McLean,
had said:
2 Canada. House of Commons Debates, 2nd Sess., 33rd Parl.,
(June 3, 1988), at p. 16095.
[English]
There is agreement that claims to refugee status should be
treated fairly, humanely and expeditiously.
In formulating our proposals, we have been mindful of our
international legal and moral obligations as a signatory to the
United Nations convention as well as Canadian standards of
justice as set out in the Canadian Bill of Rights and the
Charter of Rights and Freedoms. We have taken a cumbersome
and elaborate system, an outdated system which caused tragic
delays for genuine refugees and months of uncertainty for
others, and we have streamlined it. I believe we have made it
essentially more fair and more efficient'. [Emphasis added.]
Whatever the intention of the scheme, however,
and even if the Act did contain a fixed timetable
for the completion of the first stage hearings, it is
difficult to know how this could be of any comfort
to the applicants. As a general rule, failure by a
tribunal to accomplish a duty within a legislated
time span will usually result in no more than an
order that it remedy the defect and get on with the
job; at most, and in extraordinary circumstances, it
may result in the out of time decision being found
to be a nullity.
Here, the applicants have had their decisions,
albeit very late. It is quite obvious that nullifying
the untimely decisions can be of no help whatso
ever to them; that would only put them back where
they started. The result would be to make the
delays even longer without necessarily providing
the applicants with a favourable outcome to their
refugee claims.
This brings me to the principle ground urged by
counsel for the applicants in support of the section
28 applications, namely the Canadian Charter of
Rights and Freedoms [being Part I of the Consti
tution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II,
No. 44]]. It is said that the unreasonable delay in
the processing of the applicants' claims were in
breach of their rights to fundamental justice under
section 7 and amounted to cruel and unusual
treatment under section 12.
' Canada. House of Commons Debates, 1st Sess., 33rd Parl.,
(May 21, 1986), at pp. 13482-13483.
I am quite prepared for the purpose of this
discussion to assume that the applicants' rights to
life, liberty and security of the person are put in
issue by the refugee determination process, and
that a right to a hearing within a reasonable time
is an aspect of fundamental justice.
I might even be prepared to concede that unrea
sonable restrictions, bureaucratic hassles and
interminable delays in the processing of claims
touching the very fundamentals of human exist
ence, might, in some circumstances, be found to
constitute cruel or unusual treatment.
There are, however, as it seems to me, two
insuperable obstacles to an acceptance of the
applicants' assertion that delay in the determina
tion of their claims has resulted in a breach of
Charter rights.
In the first place, the applicants are not at all in
the same legal position as an accused person. This,
of course means that they do not enjoy the specific
protection afforded by paragraph 11(b) of the
Charter. That in itself is not conclusive for it is
well accepted that the specific dispositions of sec
tion 11 are only particular applications of the
principles of fundamental justice enshrined in
section 7. In Askov, 4 Cory J., speaking for a
majority of the Supreme Court, said [at page
1219]:
s. 11(b) explicitly focusses upon the individual interest of
liberty and security of the person. Like other specific guaran
tees provided by s. 11, this paragraph is primarily concerned
with an aspect of fundamental justice guaranteed by s. 7 of the
Charter. There could be no greater frustration imaginable for
innocent persons charged with an offence than to be denied the
opportunity of demonstrating their innocence for an uncons
cionable time as a result of unreasonable delays in their trial.
The time awaiting trial must be exquisite agony for accused
persons and their immediate family. It is a fundamental precept
of our criminal law that every individual is presumed to be
innocent until proven guilty. It follows that on the same funda
mental level of importance, all accused persons, each one of
whom is presumed to be innocent, should be given the opportu
nity to defend themselves against the charges they face and to
have their name cleared and reputation re-established at the
earliest possible time.
4 R. v. Askov, [1990] 2 S.C.R. 1199.
This passage, in my view, also serves to point up
the clear distinction in law between the position of
the present applicants and a person charged with a
criminal offense. While it may well be that
section 7 includes the right to have the state
conduct proceedings other than criminal prosecu
tions against the citizen within a reasonable delays
there can be no such analogy between these appli
cants and persons accused of crimes.
The applicants are not charged or claimed
against by the state in any way. On the contrary
they are asserting claims against the state. It is not
the state which has any burden of proving any
thing against the applicants; rather it is the appli
cants who must satisfy the very low threshold test
that they have a credible basis to their claims to be
refugees. Finally and most importantly, the appli
cants enjoy no presumption in their favour in the
way that an accused person does. If no disposition
is ever made of his case an accused is and remains
innocent; a refugee claimant in the same circum
stances never attains refugee status.
In Askov, supra, a majority of the Supreme
Court recognized that the interests served by para
graph 11 (b) of the Charter were not only individu
al but societal as well. That must equally be the
case, one would think, where one is dealing with
claims against the state: both claimant and the
state may have an interest in having a hearing
within a reasonable delay. But what is reasonable
must of necessity vary from case to case. Since
either or both parties may have a perfectly legiti
mate interest in putting off the hearing for a
greater or less period of time it would seem to me
to be impossible to affirm that any particular delay
in conducting the hearing is always unreasonable,
regardless of the circumstances. From the claim
ant's point of view, some kinds of claims against
the state may even improve or mature with the
passage of an unreasonable length of time. In the
5 See for example Misra v. College of Physicians & Sur
geons of Saskatchewan (1988), 52 D.L.R. (4th) 477 (Sask.
C.A.) and Saskatchewan Human Rights Commission v.
Kodellas (1989), 60 D.L.R. (4th) 143 (Sask. C.A.).
particular case of refugee claimants it is a com
monplace that the paralysis of the former system,
with its resulting backlogs, was only resolved by
the granting of periodic amnesties and the admis
sion into Canada of persons whose claims to
refugee status were doubtful in the extreme.
Since in my view one cannot draw a proper
analogy in law between the position of the appli
cants and persons charged with offenses, any
claims to Charter breach based on delay must
depend on a showing of prejudice by the claimant:
that the delay was for a person in his situation
unreasonable. This is the second obstacle faced by
these applicants for it is my further view that there
is nothing in the circumstances or in the evidence
in the present cases to support their claims.
To put the matter another way, a delayed hear
ing for the resolution of a claim to refugee status is
not necessarily an unfair or an unjust one for the
claimant. While it is the case that each of the
present applicants would probably have passed the
credible basis test had his hearing been held short
ly after his arrival (and the tribunal so indicated in
each case) that has no impact on the justice of the
matter. The purpose of the refugee system both in
international and domestic law is not to provide an
easy means for immigrants to find a new and more
desirable country of residence; it is to furnish a
safe haven to those who rightly fear they will be
persecuted in their country of origin. Thus, if as
was found to be the case here, the situation in the
applicants' country of origin has now returned to
one where it is no longer reasonable to fear perse
cution, the applicants can have no complaints of
unjust treatment if their claims to refugee status
are denied. 6 The shoe could, of course, have equal
ly well been on the other foot: the concept of a
réfugié sur place is well known and persons who
find themselves in Canada, at a time when events
in their country of origin give rise to a hitherto
6 See Mileva v. Canada (Minister of Employment and
Immigration) (February 25, 1991) A-726-90 (F.C.A.) and
Canada (Minister of Employment and Immigration) v. Pasz-
kowska (April 16, 1991) A-724-90 (F.C.A.).
unfounded fear of persecution, may claim and be
accepted as refugees here.
Even in criminal cases it is now clear that the
mere fact of the passage of time will not justify a
court in finding that there has been a denial of
justice without taking all the other circumstances
into account. In the very recent case of W.K.L. v.
Canada' Stevenson J., speaking for a unanimous
Supreme Court, said:
Many of the cases which have considered the issue have held
that "mere delay" or "delay in itself' will never result in the
denial of an individual's rights. This language is imprecise.
Delay can, clearly, be the sole "wrong" upon which an
individual rests the claim that his or her rights have been
denied. The question is whether an accused can rely solely on
the passage of time which is apparent on the face of the
indictment as establishing a violation of s. 7 or s. 11(d)
Delay in charging and prosecuting an individual cannot,
without more, justify staying the proceedings as an abuse of
process at common law. In Rourke v. The Queen, [1978] 1
S.C.R. 1021, Laskin C.J. (with whom the majority agreed on
this point) stated that (at pp.1040-41):
Absent any contention that the delay in apprehending the
accused had some ulterior purpose, courts are in no position
to tell the police that they did not proceed expeditiously
enough with their investigation, and then impose a sanction
of a stay when prosecution is initiated. The time lapse
between the commission of an offence and the laying of a
charge following apprehension of an accused cannot be moni
tored by Courts by fitting investigations into a standard
mould or moulds. Witnesses and evidence may disappear in
the short run as well as in the long, and the accused too may
have to be sought for a long or short period of time. Subject
to such controls as are prescribed by the Criminal Code,
prosecutions initiated a lengthy period after the alleged
commission of an offence must be left to take their course
and to be dealt with by the Court on the evidence, which
judges are entitled to weigh for cogency as well as credibility.
The Court can call for an explanation of any untoward in
prosecution and may be in a position, accordingly to assess
the weight of some of the evidence.
Does the Charter now insulate accused persons from prosecu
tion solely on the basis of the time that has passed between the
commission of the offence and the laying of the charge? In my
view, it does not.
Staying proceedings based on the mere passage of time
would be the equivalent of imposing a judicially created limita
tion period for a criminal offence. In Canada, except in rare
7 Court file number 21616, judgment dated May 16, 1991.
circumstances, there are no limitation periods in criminal law.
The comments of Laskin C.J. in Rourke are equally applicable
under the Charter.
Section 7 and s. 11(d) of the Charter protect, among other
things, an individual's right to a fair trial. The fairness of a trial
is not, however, automatically undermined by even a lengthy
pre-charge delay. Indeed, a delay may operate to the advantage
of the accused, since Crown witnesses may forget or disappear.
The comments of Lamer J., as he then was, in Mills v. the
Queen, supra, at p. 945, are apposite:
Pre-charge delay is relevant under ss.7 and 11(d) because it
is not the length of the delay which matters but rather the
effect of that delay upon the fairness of the trial. [Emphasis
added.]
Courts cannot, therefore, assess the fairness of a particular
trial without considering the particular circumstances of the
case. An accused's rights are not infringed solely because a
lengthy delay is apparent on the face of the indictment.
In my view any claim in a non-criminal case to
Charter breach based on delay requires to be
supported either by evidence or at the very least by
some inference from the surrounding circum
stances that the claimant has in fact suffered
prejudice or unfairness because of the delay. There
is no such support to be found in the present cases.
In particular there is no indication that the
applicants suffered any procedural unfairness due
to the delay in holding the hearings. Indeed, the
contrary appears to be the case. In most refugee
hearings, whether at the credible basis or at the
second stage, the claimant is likely to be the only
witness in support of his claim. Here counsel for
the applicants was able to use the time available to
gather evidence in Fiji and elsewhere; that evi
dence was produced at the hearing and relied on
by the applicants.
To the extent that the Charter claim rests on
section 7, there is also no indication in these
records as to the reason for the long delay or as to
whether any part of it may be due to the appli
cants themselves. There is equally no indication
that any of the applicants, at any time, took any
steps with a view to having the matters brought on
in a more timely fashion.
Insofar as the claim for Charter breach finds its
source in section 12, there is a total lack of any
evidentiary basis whatsoever. There is simply noth
ing upon which one could say that these applicants
in particular, or refugee claimants in general, are
suffering from cruel or unusual treatment at the
hands of Canadian authorities.
In these circumstances and while, as indicated, I
do not exclude the possibility of delay in the
conduct of a refugee hearing giving rise to a
Charter remedy, this is not such a case.
I would dismiss the section 28 applications.
PRATTE J.A.: I agree.
DESJARDINS J.A.: I concur.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.