IMM-4423-09: 'Canada' vs. Huntley: Respondents Memorandum of Fact and Law

“Immediately following the positive decision, reaction from the South African government was swift and hostile, and that government threatened that diplomatic relations would be threatened, if the decision were not reversed. The decision was further termed “racist” and “in support of Apartheid.”

-- Stefanie Gude, Assistant of Mr. Rocco Galati, Huntley's Review Lawyer

“[H]ad it not been for the explosive, hostile, and “racist” - allegation - ridden pressure of the South African government, and the public diplomatic threats made, and allegations of “racism”, that the Minister would not seek judicial review of such a decision, which rests on anemic factual complaints on evidence and factual issue(s) of effective state protection, tied to the extreme, conceded facts of Mr Huntley's ordeal, in what he suffered by way of physical attack(s).”

-- Amina Sherazee, Barrister and Solicitor, practicing exclusively in Immigration and Refugee Law.

Court File No: IMM-4423-09

FEDERAL COURT

BETWEEN:

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Applicant

- and -

Brandon Carl HUNTLEY

Respondent

RESPONDENT'S MEMORANDUM OF FACT AND LAW

PART I-THE FACTS

1. The facts regarding the surrounding circumstances of the within application are those as set out in the Affidavit of Stefanie Gude, of Amina Sherazee, and the Record herein.

2. The facts with respect to the Respondent, Brandon Carl Huntley, as found by the RPD, are as follows:

(a) the Applicant suffered seven (7) attacks, including three serious stabbings, two assaults, one of which included being burned with a cigarette;

-- RPD Decision, @ p.2
- Applicant's Record, @ p. 6

(b) during these attacks, by African South Africans, the Respondent was called such names as "a white dog", "a boor", "a settler" and a "witnai" ("white fuck");

- Ibid

(c) during these attacks, threats were also made to kill his family;

- Ibid

3. These physical attacks were triggered, instigated, and executed, in whole (or in large part), because the Respondent is a (poor) white South African.

- Applicant‘s Record, @ pp. 37-40; p. 6

4. The Respondent's evidence was:

(a) with respect to the Respondent's particular facts and ordeal, found credible by the RPD;

- Applicant's Record, p 8, @ paragraphs 28-33

(b) with respect to similarly situated white South Africans, corroborated by the viva voce evidence of Laura Anne Kaplan, a white South African, now living in Canada, whose brother suffered extensive, well-documented, widely-publicized torture, and near-death, in similar circumstances, for the same reasons, also found credible;

- Ibid, @ pp. 9-1 1, paragraphs 34-55

(c) the pointed documentary evidence further contained corroborating evidence as to South Africa's unwillingness and, moreover, inability to protect such persons as the Respondent, with respect to persecution based on race, which included some of the following:

-Ibid @ pp. 16-81; 53-54; 57, 65, 76, 83, 92, 93, 94 ,95, 101-3, 118, 121-2, 125-129, 130; 149-205

PART II - THE ISSUES

5. Whether there is any merit on the "substance" of this application for leave and judicial review?

6. Whether the bringing of this leave is:

(a) an abuse of process motivated by political pressure and motivation with respect to the Minister's statutory ‘right' to commence this application? And

(b) whether such executive action, in turn, taints the function of this Court, as enunciated by the Supreme Court of Canada in, inter alia, USA v. Cobb?

7. Whether, in the circumstances, the granting of leave itself would constitute a loss of constitutional jurisdiction on the part of this Court, by reason that there arise(s) a reasonable apprehension of bias which deprive(s) it, and the Applicant, of its status as a fair and independent tribunal and a removal of the independence of the judiciary as enunciated by, inter alia, the Supreme Court of Canada in Mackin, Quebec Secession Reference and Dunsmuir?

PART III: THE LAW AND ARGUMENT

A/ The "Merits' of the Application

(i) The Decision

8. The facts with respect to the Respondent, Brandon Carl Huntley, as found by the RPD, are as follows:

(a) the Applicant suffered seven (7) attacks, including three serious stabbings, two assaults, one of which included being burned with a cigarette;

- Decision, @ P2
- Applicant's Record, @ p. 6

(b) during these attacks, by African South Africans, the Respondent was called such names as "a white dog", "a boor", "a settler" and a "witnai" ("white fuck");

-Ibid

(c) during these attacks, threats were also made to kill his family:

- Ibid

9. These physical attacks were triggered, instigated, and executed, in whole (or in large part), because the Respondent is a (poor) white South African.

-Applicant's Record, @ pp. 37-40; 6

10. The Respondent's evidence was:

(a) with respect to the Respondent's particular facts and ordeal, found credible by the RPD;

- Ibid, p. 8, @ paragraphs 28-33

(b) with respect to similarly situated white South Africans, corroborated by the viva voce evidence of Laura Anne Kaplan, a white South African, now living in Canada, whose brother suffered extensive, well-documented, widely-publicized torture, and near-death, in similar circumstances, for the same reasons, also found credible;

- Ibid, @ pp. 9-11, @ paragraphs 34-55

(c) the documentary evidence further contained corroborating evidence as to South Africa's unwillingness and, moreover, inability to protect such persons as the Respondent.

- ibid, @ pp. 16-81; 53-54; 57, 65, 76, 83, 92, 93, 94, 95, 101-3, 1 18, 121-2, 125-129, 130; 149-205

11. During the course of the RPD's decision, while there is a "recital" of both the Respondent's and witnesses evidence,

- Decision, @ pp. 2-4; 5-10, paragraphs 2-23; 34-72
-Applicant's Record, pp. 6-7; 9-14

it is unfair, and inaccurate, as the Applicant has done, to confuse the recital of the viva voce evidence, with the RPD adopting some of the broad-sweeping statements, canvassed in the recital of the evidence, with the RPD as adopting those statements as "findings of facts". In fact, the RPD decision, when read properly and contextually, cannot be taken, as the Applicant would have it, that the RPD is adopting all statements made by the witness in the RPD's recital of her evidence.

12. It is submitted that this is made clear by the following:

(a) with respect to the Respondent's evidence, the RPD found:

[32] I find from all the evidence that the claimant is a credible witness and accept his evidence that the allegations of persecution where are described in his PIF narrative and which he related to me at the hearing occurred.

[33] Furthermore, the claimant's allegations of persecution of white South Africans by African South Africans and that is a common event today in South Africa was enhanced and supported by the oral testimony of a witness. I now refer to her evidence. I will have further comments on the claimant's evidence later on in these reasons.

(b) with respect to the witness, the RPD,

(i) firstly, when the RPD sets out her testimony of the facts and events of her family's persecution, the language of the decision is on the basis of credibility and accepting of the events as facts:

RPD Decision, e. paragraphs 34-37; 50-55

(ii) however, where the witness makes broad statements with respect to broad statements with respect to broad-sweeping generalizations and conclusions, the RPD is clearing "reciting" her evidence without making them findings of fact:

i. e. - "Most crimes, she alleges
- paragraph 48

- "Police, she believes .."
-paragraph 49

- "She believes the attack took place because
-paragraph 55

- "The witness wonders -.
-paragraph 67

- "She alleges
- paragraph 68

and lastly, the paragraph the Applicant misrepresents:

[73] This witness' evidence was the lifeline for the claimant's claim. She brought to the hearing, from her own personal experience, a vivid and detailed account of what is taking place in South Africa today vis-à-vis the African South Africans and the white South Africans and the indifference of the mainly African South Africans police force to protect them. White South Africans, she alleges, are no longer welcome in South Africa.

clearly indicates that the RPD is taking the witness' testimony of what has happened to her and her family as those similarly situated to the Applicant, and then goes on to analyze the documentary evidence;

(c) with respect to documentary evidence, as it relates to the claim, the RPD deals with it under the sub-heading "The Objective Evidence".

- Decision, paragraphs 91-118

engages in a substantial and comprehensive review and weighing of the evidence;

(d) then, the totality of the evidence found credible by the RPD is as follows:

[119] The evidence before me, which I find to be credible, is that:

[120] (a) The claimant was attacked personally by African South Africans on at least six or seven occasions because of his white skin (LL125-128 of his PIE');

[121] (b) He has scars on various parts of his body, stomach, right eye, right side of his body and hands;

[122] (c) Multiple attacks. The witness, Laura Kaplan, was attacked and threatened with guns by African South Africans on two separate occasions because of the colour of her skin and perceived wealth

[123] (d) Laura's brother Robert who was tortured and shot by African South Africans and miraculously lived, now has major physical and psychological problems;

[124] (e) Laura's brother Robert and her father survived only because of their wealth, being able to install electronic and guard protection for themselves both inside and outside their homes.

[125] The evidence of the claimant and the witness and the documentary evidence which I accept as credible show a picture of indifference and inability or unwillingness of the government and the security forces to protect White South Africans from persecution by African South Africans.

all of which does NOT include the broad-sweeping "beliefs", "wonderings", and "allegations" of the witness, at large, and her broad-sweeping "conclusions";

(e) and finally, the RPD's conclusion, on the heels of the accepted evidence, is as follows:

[127] 1 find that the claimant was a victim because of his race (white South African) rather than a victim of criminality and that he has estabiished a link between his fear of persecution and one of the five grounds in the Convention definition.

[128] I find that there is no viable IFA for the claimant in any part of South Africa. According to the most recent statistics, African South Africans make up about 80 percent of the population, white Europeans approximately 9 percent and the remainder are other coloured and Asians - the Europa World Yearbook 2008 (Exhibit A-I, Tab 1.2).

[129] I find that the claimant would stand out like a ‘sore thumb' due to his colour in any part of the country.

And it is submitted that, in conducting such proper fact-finding, weighing of evidence, proper application of the definition with respect to effective state protection, the RPD does nothing orbiting or akin to the distorting submissions of the Applicant.


(ii) Standard of Review

13. It is respectfully submitted that, while a "reasonable" standard applies to the decision as a whole, the Applicant must show, on any particularly singular finding of fact or weighing of evidence, that such particular finding was "patently unreasonable" or made in a "perverse and capricious" manner, without evidence, or in disregard to the evidence:

- s. 18.1 (3) (d), Federal Courts Act
- Owusu-Ansah v.MEI (1989) 8 lmm.L.R.(2d) 106, at pp. 113-114
- Jazxhiu v. MC.L (2000, IMIvt-481 8-99, Hansen, 5., @p5
- Horvath v. MCI (2001) FCT 398 FCTD)
- Hatami v. Canada (2000, LMM-2418-98, Lemieux, at pp. 12-13.)
- Gondi v. MCI (2005) FC 433 para. 16-17
- Jones v. MCI (2006) FC 405, para 14-18
- Su v. M.C.I. (2008 Imm-I 182-07, Lutfy CJ.)

and that in determining this leave application, with respect to those findings, the Supreme Court of Canada, Dunsmuir, instructs that a certain amount of deference must be paid to the RPD in its fact-finding, as an expert tribunal, wherein the Supreme Court of Canada ruled:

49. Deference in the context of the reasonableness standard therefore implies that courts will give due consideration to the determinations of decision makers. As Mullan explains, a policy of deference recognizes the reality that, in many instances, those working day to day in the implementation of frequently complex administrative schemes have or will develop a considerable degree of expertise or field sensitivity to the imperatives and nuances of the legislative regime": D. J. Mullan, "Establishing the Standard of Review: The Struggle for Complexity?' (2004), 17 C.J44.L.F. 59, at p. 93. In short, deference requires respect for the legislative choices to leave some matters in the hands of administrative decision makers, for the processes and determinations that draw on particular expertise and experiences, and for the different roles of the courts and administrative bodies within the Canadian constitutional system.

- Dunsmuir v New Brunswick [2008] 1 SCR 190

(iii) The Applicant's Position and Argument

14. With respect to the Applicant's state protection argument, contained at paragraphs 8 -19 of the Applicant's memorandum, it is respectfully submitted that the Applicant's argument is wholly without any merit, as the RPD properly applied the test in Ward, and subsequent jurisprudence, in light of the credible and unassailable credibility of:

(a) the Respondent's evidence, including the indisputable physical attacks;

(b) the witness' evidence of persons "similarly situated", namely Mrs. Kaplan, and the fact that the witness had gone to police to no avail which was accepted by the RPD; and

(c) the corroborating documentary evidence of (a) and (b); all of which squarely conforms to establishing the "rebuttable presumption" as set out by the Supreme Court of Canada in Ward, wherein the Supreme Court of Canada clearly ruled on how to rebut that presumption in ruling:

Moreover, it would seem to defeat the purpose of international protection if a claimant would be required to risk his or her seeking ineffective protection of a state, merely to demonstrate that ineffectiveness.

Like Hathaway, I prefer to formulate this aspect of the test for fear of persecution as follows: only in situations in which state protection "might reasonably have been forthcoming", will the claimant's failure to approach the state for protection defeat his claim. Put another way, the claimant will not meet the definition of "Convention Refugee" where it is objectively unreasonable for the claimant not to have sought the protection of his home authorities; otherwise, the claimant need not literally approach the state.

The issue that arises, then, is how, in a practical sense, a claimant makes proof of state's inability to protect its nationals as well as the reasonable nature of the claimant's refusal actually to seek out this protection, if the facts of this case, proof on this point was unnecessary, as representatives of the state authorities conceded their inability to protect Ward. Where such an admission is not available, however, clear and convincing confirmation of a state's inability to protect must be provided. For example, a claimant ,night advance testimony of similarly situated individuals let down by the State protection arrangement to the claimant's testimony of past persona! incidents in which state protection did not materialize...

- Ward v. Canada [1993] 2 S.C.R. 689 (SCC) @ pp.724-25

and as Ward has been further interpreted by this Court in the Balogh case:

"[41] Third, I agree with counsel for the applicants, the tribunal took the Federal Court of Appeal decision in Zaizali and the comment Justice La Forest made about that case out of context. As I see it, that case stands for the proposition, absent some evidence, nations are presumed capable of protecting their citizens and. Absent a situation of complete breakdown of state apparatus, it should be assumed that the state is capable of protecting a claimant.

[42] The capability of a state to protect its citizens is simply a presumption or an assumption which can be defeated by clear and convincing evidence led by the applicants of a state's inability to protect Justice La Forest indicated ho v that evidence may be advances. He stated:

For example, a claimant might advance testimony of similarly situated individuals let down by state protection arrangements or the claimants testimony of past personal incidents in which state protection did not materialize.
Balogh v. MCI (‘2002,) FCT 809

and further,

"[42] The principle governing state protection was established by the Supreme Court of Canada in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 ("Ward") where the Court held that the ability of a state to protect its citizens is simply an assumption which can be defeated when the claimants provide clear and convincing evidence that the state cannot protect them. The evidence that could help making this determination had been suggested by La Forest J. who stated at paragraph 50 that "... [f]or example, a claimant might advance testimony of similarly situated individuals let down by the state protection arrangement or [...] testimony of past personal incidents in which state protection did not materialize"
....
[56] It is also wrong in law for the Board to adopt a "systemic" approach which may have the net effect of denying individual refugee claims on the sole ground that the documentary evidence generally shows the Hungarian government is making some efforts to protect Romas from persecution of discrimination by police authorities, housing authorities and other groups that have historically persecuted them. The existence of anti- discrimination provisions in itself is not proof that state protection is available in practice: "Ability of a state to protect must be seen to comprehend not only the existence of an effective legislative and procedural framework but he capacity and the will to effectively implement that framework" (Elcock v. Canada (Minister of Citizenship and Immigration) (1999), 175 F.T.R. 116 at 121). Hungary is now considered a democratic nation which normally would be considered as being able to provide state protection to all its citizens (Ward, supra). Unfortunately, there are still doubts concerning the effectiveness of the means taken by the government to reach this goal. Therefore, a "reality check" with the claimants' own experiences appears necessary in all cases"

Mohacsi v. MCI (2003) FCT 429

and it is further submitted that this case is apt for the reminder in Ward that:

"Moreover, it would seem to defeat the purpose of international protection if a claimant would be required to risk his or her life seeking ineffective protection of a state, merely to demonstrate that ineffectiveness."

Ward, supra (SCC)

It is further submitted that this Court has recently ruled that:

[18] This case will be referred back to the Board for a new hearing. The notion of state protection requires that each case be reviewed on its own fads, using the relevant documentation about country conditions that are summarised in the encyclopedia of references, the diction aiy of terms, and a gallery of portraits demonstrating state protection in this type of case.

[19] It would seem to defeat the purpose of international protection if a claimant is required to risk his or her life seeking ineffective protection of a state, merely to demonstrate that ineffectiveness (see: Canada (Attorney General) i.'. Ward, [1993] 2 S.C.R. 689; also: Aranzburo v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1873 (QL)).

20] In Howard-Dejo v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 176 (QL), the Court noted that, in that case, the evidence showed not only that the state had not always succeeded in protecting the targets of terrorism, but that the authorities were unable to provide protection proportionate to the threat.

[26] In the case before us, the state did not demonstrate that it had the capacity to implement a framework for the applicants' protection. It must be reiterated that, with respect to "state protection", each case turns on its own facts.

Hernandez v. Canada (Minister of Citizenship and immigration), 2007 PC 1211

and further:

[18] In my opinion, Ward amends the decision in Villafranca in a particularly important respect. Ward makes a clear statement on the quantity and quality ofthe evidence which a claimant must produce to rebut the presumption of state protection; that is, a claimant is only required to provide some clear and convincing evidence. Therefore, in my opinion, the statement in Villafranca that "it is not enough for a claimant merely to show that his government has not always been effective at protecting person in his particular situation" cannot any longer be applied as a point of law."

De Araujo Garcia v. MCI 2007 FC 79

15. With respect to the Applicant's argument(s) contained at paragraphs 20 - 39 of the Applicant's memorandum, that the RPD's factual finding(s) were "perverse" and "unreasonable", the Respondent respectfully submits that:

(a) the Applicant has not raised one serious issue to the perversity of one factual finding not reasonably open to the RPD on the evidence before the RPD;

(b) the Applicant misstates and, with respect, misrepresents the "findings" of the RPD, with the recital of the evidence given by the witness(es), which findings must not be confused, as even credible witness(es), as to credible events, may sometimes draw conclusions which are not called for, nor warranted, however, that does not mean that their evidence as to the events and facts is not credible, nor does it mean that in the recital of all their evidence, the RPD is adopting the conclusions of the witness(es) as "facts" and it is submitted that this Court has seen many such decisions, where the RPD recites the evidence, then proceeds to analyze it, one way or the other, in the factual context of the claim;

(c) the Applicant simply attempts, as in paragraph 38, to want to re-weigh, or reassess, the evidence, by pointing to the fact that the Respondent couid not possibly be a victim of persecution, based on his white race, simply because whites, in certain urban centers, comprise 23.9%, 19.4%, 18.7% and 16% of the population, which is an Oz-bound submission not tied to any Kansas-reality, nor evidence before the Board, and begs the rhetorical question of: "how 80+% of African (Black) South Africans could have been subject to persecution in the days of Apartheid"? It alt depends on the particular facts of the claimant, his/her circumstances, instances of persecution, and the willingness/ability of the state to provide state protection, all of which the RPD properly analyzed and applied.

16. It is respectfully submitted that the tenor, texture, and weight of the Applicant's arguments are to have this Court rehear and re-determine the claim, based on misguided, politically correct notions and alarm of potential opening of (white) flood-gates from South Africa.

17. With respect to the Applicant's arguments, of equating purported acts of random violence with persecution, contained at paragraphs 40-44 of the Applicant's memorandum, a proper, complete, and contextual reading of the RPD decision, and credible findings, that during the stabbings and beatings of the Respondent, he was referred to as a "white dog", "boor", "settler", and "white fuck", that such attacks were not "random", which non- randomness was confirmed by the witness, and corroborated by the documentary evidence, and tied to the annotated groups of the definition of a Convention Refugee ins. 96 of the IRPA.

18. With respect to the Applicant's submissions that the RPD erred in its assessment of subjective fear and delay in making a claim, contained in paragraphs 45-52 of the Applicant's memorandum, the Respondent respectfully submits that:

(a) (i) the subjective fear was reasonably open to the RPD in the face of the credible evidence;

(ii) particularly in light of the seven (7) serious incidents of physical attacks; (iii) particularly in light of corroboration by the witness and documentary evidence of similarly situated persons;

(b) the issue of delay was again within the purview of the RPD to assess, on the particular circumstances, which again it did, as merely one factor in establishing well-founded fear, as set out by this Court: and

(c) moreover, the Applicant has not shown any serious issue as to the proper reviewability, on the evidence before the RPD, except to say that the Applicant does not like the result and wishes this Court to, willy-nilly, replace it with a different result.

B/ Minister's Application an Abuse of Process

19. It is further submitted that the Minister's application, in light of the "political pressure", and political nature of the decision, and allegations of "racism" arid support of "apartheid" by the South African government:

- Affidavit of Stefanie Gude

constitutes an abuse of process, contrary to s. 7 of the Charter, arid at common law, for which this application must be independently dismissed for the reasons set out by the Supreme Court of Canada in USA v. Cobb, in that., to allow a Ministerial abuse, even when that decision is a purely Ministerial one, into the Court, is for the Court to adopt and make the abuse its own and thus lose jurisdiction, as set out by the Supreme Court of Canada:

[36] Although s.7 of the Charter incorporates the abuse of process doctrine, it does not extinguish the common law doctrine, as was recognized by L'Heureux-Dube J. in R.  v. O'Connor, [19951 4 S.C.R. 411, at para. 70:

"I conclude that the only instances in which there may be a need to maintain any type of distinction between the two regimes will be those instances in which the Charter, for some reason, does not apply yet where the circumstances nevertheless point to an abuse of the court's process."

[37] Canadian courts have an inherent and residual discretion at common law to control their own process and prevent its abuse. The remedy fashioned by the courts in the case of an abuse of process, and the circumstances when recourse to it is appropriate were described by this Court in R v. Keyowski, [1988] 1 S.C.R. 657...

- USA v. Cobb [2001] 1 S.C.R. 57 at pp. 604-605

in that for a judicial body to adopt the executive abuse of a party such as the Minister, is for the judicial body to deprive itself of jurisdiction as allowing itself to be a conduit for that abuse, in that the Supreme Court of Canada in Cobb, supra ruled:

33 The respondent argues that any concern that the appellants may face unfair proceedings in the United States is a matter for the Minister, not for the extradition judge, whose sole function is to assess the sufficiency of the evidence. True as this may be, it misses the real issue here. The issue at this stage is not whether the appellants will have a fair trial if extradited, but whether they are having a fair extradition hearing in light of the threats and inducements imposed upon them, by those involved in requesting their extradition, to force them to abandon their right to such a hearing. The focus of the fairness issue is thus the hearing in Canada, to which the Charter applies, and not the eventual trial in the U.S., which it may be premature to consider pending the Minister's decision on surrender. Conduct by the Requesting State, or by its representatives, agents or officials, which interferes or attempts to interfere with the conduct of judicial proceedings in Canada is a matter that directly concerns the extradition judge.

34 Section 7 permeates the entire extradition process and is engaged, although for different purposes, at both stages of the proceedings. After committal, if a committal order is issued, the Minister must examine the desirability of surrendering the fugitive in light of many considerations, such as Canada's international obligations under the applicable treaty and principles of comity, but also [page6O4} including the need to respect the fugitive's constitutional rights. At the committal stage, the presiding judge must ensure that the committal order, if it is to issue, is the product of a fair judicial process.

Ibid., @ Paragraphs 33-34

and wherein the Supreme Court of Canada ruled, with respect to the administrative actions of a party to the proceedings, and how those actions, if left unchecked, amount to an abuse of the Court's process:

44 These concerns, and the remedies to which they give rise, properly belong to the judicial phase of the extradition process as they are not dependent on the ultimate outcome of either the committal or the surrender decision. Nothing the Minister could have done would address the unfairness which would taint a committal order obtained under the present circumstances The Minister is not the guardian of the integrity of the courts. it is for the courts themselves to guard and preserve their integrity. This is therefore not a case that must await the executive decision. The violations of the appellants' rights occurred at the judicial stage of the process and call for redress at that stage and in that forum.

Ibid., @ paragraph 44

and further:

48 As I indicated before, the existence of potential remedies at the executive stage does hot oust the jurisdiction of the courts to control their own process in cases such as here, where the courts are required to preserve the integrity of their own proceedings. For example, if the impugned statements at issue here had been uttered after the committal order, and any appeal there from, the appellants might have been left to raise their concerns with [page6 101 the Minister, who might have considered the appropriateness of a response ranging from refusing to surrender, to seeking the types of assurances that may alleviate legitimate concerns with the fairness of the foreign process.

49 It has also been argued that the impugned comments were not uttered by Canadian actors and therefore do not, in and of themselves, engage the Charter, This, in my view, mischaracterizes the issue. The present appeal is not a case of "foreign" conduct, which may not attract Charter scrutiny, but it is conduct attributable to a litigant before a Canadian court. This is sufficient to trigger the application, if not of S. 7 of the Charter, then of the common law doctrine of abuse of process, which, in the circumstances, rests au the same principles and calls for the same remedies: see O'Connor, supra. It is therefore unnecessary to decide whether the presence of the Attorney General of Canada exercising a statutory function on behalf of the United States, such as appearing before a Canadian court on behalf of the United States in a Canadian proceeding pursuant to the Extradition Act, would be sufficient to trigger the Charter protection requested here. Suffice it to say that pursuant to governmental agreements and arrangements, Canadian government officials acted as counsel and agent for a party litigant who attempted to dissuade Canadian citizens from asserting their liberty rights before a Canadian court

Ibid, paragraphs 48-49

20. In Cobb, although recognized that the actions complained of were Ministerial, the Supreme Court of Canada ruled that to allow the Court to be tainted and infected by the Ministerial abuse is to have the Court implicated, which requires a judicial remedy in the course of the pertinent proceedings, in this case, the within leave application.

21. It is trite law that the Executive must act in accordance with constitutional constraints, as set out by the Supreme Court of Canada, pre-Charter:

14 I need not consider which of these views should prevail in ordinary cases. For whatever discretion there may be in a non-constitutional matter, in a case like the present) the discretion must be exercised in conformity with the dictates of/he Constitution, and the Crown's advisors must govern themselves accordingly. Any other course would violate the federal structure of the Constitution.

-Air Canada v. BC Attorney General [1986]2SCR 539

and post-Charter:

[72] The constitutionalism principle bears considerable similarity to the rule of law, although they are not identical. The essence of constitutionalism in Canada is embodied in s 52(1) of the Constitution Act, 1982, which provides that "[t]he Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect." Simply put the constitutionalism principle requires that all government action must comply with the law, including the Constitution. The rule of Law principle requires that all government action must comply wit), the law, including the Constitution. This Court has noted on several occasions that with the adoption of the Charter, the Canadian system of government was transformed to a significant extent from a system of Parliamentary supremacy to one of constitutional supremacy. The Constitution binds all governments, both federal and provincial, including the executive branch (Operation Dismantle Inc. v. The Queen, [1985] 1 S. C.R. 441, a/p. 455). They may not transgress its provisions: indeed, their sole claim to exercise lawful authority rests in the powers allocated to them under the Constitution, and can come from no other source.

- Reference re Secession of Quebec, [1998] 2 S.C.R. 217 @ para 72

and that the Applicant Minister cannot hide behind a privilege or right, such as any notion of solicitor-client privilege, in the context of a statutory right to bring this application, where it has been held, by the Supreme Court of Canada, that a right cannot be used to shield the alleged unconstitutional use or exercise of that purported right:

...it is my view that it is not open to the Crown, either in right of Canada or of a Province, to claim a Crown immunity based upon an interest in certain property, where its very interest in that property depends completely and solely on the validity of the legislation wh.ich it has itself passed, if there is a reasonable doubt as to whether such legislation is constitutionally valid. To permit it to do so would be to enable it, by the assertion of rights claimed under legislation which is beyond its powers, to achieve the same results as if the legislation were valid. In a federal system it appears to me that, in such circumstances, the Court has the same jurisdiction to preserve assets whose title is dependent on the validity of the legislation as it has to determine the validity of the legislation itself.

B.C. Power Corp. p B.C. Electric Co. [1962] SCR 642

22. It is submitted that the:

(a) timing and circumstances of this application:

- Affidavit of Stefanie Gude

(b) the tenor, texture, and non-existent weight or merit of this application:

- Applicant's Memorandum

makes this a politically abusive application,

- Affidavit ofAmina Sherazee

which not only breaches the Applicant's rights against abuse of process at common law and under s. 7 of the Charter:

USA v. Cobb, supra (SCC)

but further undermines Constitutional ism, Rule of Law, as it pertains to judicial review, as enunciated and elucidated by the Supreme Court of Canada:

27 As a matter of constitutional law, judicial review is intimately connected with the preservation of the rule of law. It is essentially that constitutional foundation which explains the purpose of judicial review and guides its function and operation. Judicial review seeks to address an underlying tension between the rule of law and the foundational democratic principle, which finds an expression in the initiatives of Parliament and legislatures to create various administrative bodies and endow them with broad powers. Courts, while exercising their constitutional functions of judicial review, must be sensitive not only to the need to uphold the rule of law, but also to the necessity of avoiding undue interference with the discharge of administrative functions in respect of the matters delegated to administrative bodies by Parliament and legislatures.

28 By virtue of the rule of law principle, all exercises of public authority must find their source in law. All decision-making powers have legal limits, derived from the enabling statute itself, the common or civil law or the Constitution. Judicial review is the means by which the courts supervise those who exercise statutory powers, to ensure that they do not overstep their legal authority. The function of judicial review is therefore to ensure the legality, the reasonableness and the fairness of the administrative process and its outcomes.

- Dunsmuir, supra, (SCC)

23. In summary, the Applicant's Minister's decision to commence "judicial review" constitutes an abuse of process which requires a remedy from this Court in that:

(a) it is more probable than not that the Minister made his decision to commence the application as a result of pressure(s) from the South African government (against whom the Respondent made his claim)> namely on improper political interference:

- Affidavit of Stefanie Gude
- Affidavit of Amina Sherazee

(b) the Attorney General, who constitutionally is the Chief Legal Officer, and represents the Minister in this Court, is bound to act in accordance with constitutional parameters and not simply on "instructions";

- Air Canada v. B. C Attorney General, supra (SCC)

(c) such political interference constitutes:

(i) an abuse of process and interference with the quasi-judicial function of the RPD, dealing with weighty Charter interests in the context of refugee determination; and

(ii) an abuse of process of this Court's constitutional role of conducting bona fide judicial review;

- USA v. Cobb, supra (5CC)
- Dunsmuir, supra (SCC)

(d) such abuse, if not remedied by this Honourable Court, taints, infects, and makes this Court adopt the abuse as a judicial excess and deprivation of jurisdiction which requires a remedy;

- USA v. Cobb, supra (SCC)

24. It is submitted that, above and beyond the abuse of process by the Applicant, what is at issue is this Court's function on judicial review. It is respectfully submitted that judicial review is what maintains the pivotal balance of the underlying constitutional framework, as enunciated by the Supreme Court of Canada, of Constitutionalism and the Rule of Law. Where the function of judicial review is thus abused by the Executive, or improperly exercised based on external political pressure, the effect is to gut the independence of the judiciary, in fact and/or iii reasonable apprehension, thus removing this pivotal safeguard of our constitutional framework. This is not only profound but deprives this Honourable Court of jurisdiction to do so as argued below in the within memorandum.

C/ Federal Court, in Circumstances, devoid of Jurisdiction

25. It is thus submitted that, in the particularly unique circumstances of the within application, this Honourable Court, for the argument and reasons set out above at paragraphs 19 to 24 of the within memorandum, is constitutionally devoid of jurisdiction, in that;

(a) the Minister's application is an abuse of process as set out above

(b) (i) given this Honorable Court's track record as between applications on behalf of refugee claimants/immigrants versus those by the Minister;

- Affidavit of Amina Sherazee,

(ii) and in light of the particular circumstances of this case;

to grant leave to the Minister would breach the Respondent's constitutional rights to a fair and independent judiciary, in manifesting a reasonable apprehension of bias, on the part of this Honourable Court, as set out and enunciated, time and time again, and as summarized by the Supreme Court of Canada in Mackin, in that:

¶ 37 The concept of independence accordingly refers essentially to the nature of the relationship between a court and others. This relationship must be marked by a form of intellectual separation that allows the judge to render decisions based solely on the requirements of the law and justice. The legal standards governing judicial independence, which are the sources governing the creation and protection of the independent status ofjudges and the courts, serve to institutionalize this separation. Moreover, the Preamble to the Constitution Act, 1867 and s. 11(d) of/he Charter give them afundamental status by placing them at the highest level of the legal hierarchy.

¶ 38 The general test for the presence or absence of independence consists in asking whether a reasonable person who is fully informed of all the circumstances would consider that a particular court enjoyed the necessary independent s/a/u.s (Valente, supra, a/p. 689; Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R349). Emphasis is placed on the existence of an independent status, because not only does a court have to be truly independent but it must also be reasonably seen to be independent. The independence of the judiciary is essential in maintaining the confidence of litigants in the administration ofjustice. Without this confidence, the Canadian judicial system cannot truly claim any legitimacy or command the respect and acceptance that arc essential to it. In order for such confidence to be established and maintained, it is important that the independence of the court be openly ‘communicated" to the public. Consequently, in order for independence in the constitutional sense to exist, a reasonable and well-informed person should not only conclude that there is independence in fact, but also find that the conditions are present to provide a reasonable perception of independence. Only objective legal guarantees are capable of meeting this double requirement.

¶ 39 As was explained in Valente, supra, at p. 687, and in the Provincial Court Judges Reference, supra, at paras. 118 et seq., the independence of a particular court includes an individual dimension and an institutional dimension. The former relates especially to the person of the judge and involves his or her independence from any other entity, whereas the latter relates to the court to which the judge belongs and involves its independence from the executive and legislative branches of the government. The rules relating to these dimensions result from somewhat different imperatives. Individual independence relates to the purely adjudicative functions of judges -- the independence of a court is necessary for a given dispute to be decided in a manner that is just and equitable - whereas institutional independence relates more to the status of the judiciary as an institution that is the guardian of the Constitution and thereby reflects a profound commitment to the constitutional theory of the separation of powers. Nevertheless, in each of its dimensions, independence is designed to prevent any undue interference in the judicial decision-making process. which must be based solely on the requirements of law and justice.

- Mackin v. New Brunswick [20021 1 S.C.R. 405

and as adopted, in the refugee context, by the Federal Court of Appeal, in Geza:

[53] First, the standard of impartiality expected of a particular administrative decision-maker depends on context and is to be measured by reference to the factors identified by L'Heureux-Dube J. in Baker v. Canada (Minister of Citizenship and Immigration,), [1999] 2 S.C.R. 817 at para. 47. The independence of the Board. its adjudicative procedure and functions, and the fact that its decisions affect the Charter rights of claimants, indicate that the content of the duty of fairness owed by the Board, including the duty of impartiality, falls at the high end of the continuum of procedural fairness.

- Geza, et a! v. Canada [2006] F.C.J. No. 477, (FCA)

which doctrine equally applies to the Federal Court in its role of conducting Judicial Review.

26. In summary, it is respectfully submitted that:

(a) the Ministerial abuse and interference with the RPD's decision in bringing an abusive application to this Court, based on ultra vires, external political interference from the "agent of persecution" (government of South Africa in its unwillingness/inability to effectively protect) based on spurious allegations of "racism";

(b) the Minister's abuse of process in bringing improper judicial review to this Court, with the effect of:

(i) sending a message of political appeasement to the South African government;

(ii) sending a message to other RPD Board members, (who do not enjoy tenure in their quasi-judicial positions), that such decisions will be reviewed on national and international and spurious allegations of ‘racism', not only by foreign governments but, by implicit adoption, by the very Minister who appoints RPD members;

places this Court in the position that its constitutionally pivotal role of conducting the pivotal function of balancing and safeguarding Canada's constitutional structural imperatives of Constitutionalism and the Rule of Law, has been in fact, and/or in a reasonably apprehended fashion, stripped of its jurisdiction to do so, as to grant leave would:

(c) deprive this Honourable Court of jurisdiction of its status of a fair Superior Court, and thus breach the right to an independent judiciary, a core component of the Rule of Law:

- Quebec Secession Reference, supra; Dunsmuir, supra

and whether that loss of independence is in fact effected by the Minister's abuse of process, or only reasonably apprehended that this Court is acquiescing to the political interference of foreign government pressure, by alleging Canadian governmental racism through the RPD, is one and the same for the loss of the Court's jurisdiction.

- Mackin, supra (SCC)

D/ COSTS

27. it is submitted that, in the circumstances of this case, that the Respondent is entitled to his solicitor-client costs of the within application.

PART IV - ORDER SOUGHT

28. The Respondent therefore, respectfully, requests:

(a) that this application be dismissed;

(b) that the Respondent be granted his solicitor-client costs of this application; and

(c) such further or other relief as this Honourable Court deems just.

All of which is respectfully submitted.

Dated 2nd day of November, 2009.

ROCCO GALATI LAW FIRM
PROFESSIONAL CORPORATION
Rocco Galat, B.A. LL.B., LL.M
637 College Street, Suite 203
Toronto ON M6G 1B5

TEL: 416-536-7811
FAX: 416-536-6801

Solicitor for the Respondent

Source: Politics Web, via Henri La Riche
Original PDF: IMM-4423-09: Respondent (Huntley): Memorandum of Fact & Law & Supporting Affidavits (Gude & Sherazee) (PDF:1963K)