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Focus: Court chides practice of using affidavits by staff

But lawyers say they have no alternative for evidence in refugee cases
|Written By Michael McKiernan

Refugee lawyers say they won’t shy away from filing affidavits from their employees in legal proceedings despite a Federal Court judge’s criticism of the practice as he rejected a bid by a failed refugee claimant to defer his deportation to Sri Lanka.

Federal Court Justice Peter Annis made his comments in the case of Peter v. Canada (Public Safety and Emergency Preparedness), a judicial review of the Canada Border Services Agency’s refusal to postpone Emilian Peter’s removal from Canada following his failed refugee claim.

Peter fled his northern Sri Lankan home in 2010, leaving behind his wife and five children to seek asylum in North America. He arrived in Canada in April 2011 via the United States and made a claim for inland refugee protection. A year later, the refugee protection division of the Immigration and Refugee Board of Canada had rejected his claim and by August 2012, he had exhausted all of his appeals.

Peter then challenged his deportation order on the basis that he faced serious risk of harm on his return due to his work driving for a non-governmental organization and his association with two nephews detained by the Sri Lankan government as suspected members of the Liberation Tigers of Tamil Ealam.

In support of that request, Patricia Watts, a law clerk in the office of Peter’s lawyers at Jackman Nazami & Associates, filed an affidavit containing personal testimony about the dangers faced by Tamils on their return to Sri Lanka. Part of her evidence detailed the experience of former clients of the firm with similar backgrounds to Peter who had been subject to detention, abduction, and beatings once they had arrived back in the country.

The CBSA’s removals officer who had rejected Peter’s claim discounted Watts’ affidavit, concluding that it was uncorroborated, anecdotal, and too lacking in detail to have any probative value as to the risk facing Tamil returnees to Sri Lanka.

In his own decision released on Nov. 13, Annis ruled the officer had reasonable grounds to reject the affidavit “because of its anecdotal nature and the failure to authenticate the assertions” in it. He also added his own thoughts on the matter: “I question the appropriateness of a practice that I have seen occur with some degree of regularity in refugee cases of a law firm introducing affidavit evidence on significant substantive issues, such as the circumstances of Tamil returnees in Sri Lanka in this case. Besides blurring, and probably crossing, the lines between the firm’s role as advocate and witness before the decision-maker, evidence of this nature has little to no probative value.

“It raises issues of bias and provides no means of corroboration because, as in this case, the source is privileged client information. It is also inherently unreliable for its hearsay and out-of-court deficiencies. Moreover, one must recognize that an affidavit is merely evidence in chief. Without an appropriate opportunity for cross examination to test its accuracy and reliability, in all but the most exigent cases, it should be rejected out of hand; even more so where no reliable corroboration is provided.”

Barbara Jackman, Peter’s lawyer, calls the officer’s rejection of the affidavit “unreasonable,” explaining that there were no other options for getting the information about the firm’s other clients into evidence.

Chantal Desloges, the Toronto-based principal of an immigration law boutique, says she’ll have no issues filing affidavits from law clerks or other staff in future matters. “It’s not as if the lawyer personally is entering their own affidavit,” she says. “I guess this judgment will give people pause to stop and consider whether they really are putting forward the best possible evidence, but if this is the best you can do, lawyers are still going to try it.”

Desloges says the practical difficulties refugee lawyers experience in proving the risks faced in foreign countries justifies the more relaxed approach to the rules of evidence in refugee matters and related proceedings.

“In a case like this where you’re dealing with people in Sri Lanka, how else are you going to prove it but by having someone say it in an affidavit? It’s not as if you can get the Sri Lankan government to report that they have tortured someone or go to a cell in Colombo to get an affidavit from the client directly. I think if that were to be the standard, it would set up an almost impossibly high onus to ever prove the case.”

In removals cases where time is of the essence, decision-makers should be willing to grant even more latitude to lawyers in terms of the type of evidence they present on the risk, according to Lorne Waldman, a past president of the Canadian Association of Refugee Lawyers. “I find it surprising to see this kind of criticism coming out because this has been the practice refugee lawyers have followed for many years,” says Waldman.

“What else can reasonably be expected of you given the time frames? When you go to a refugee hearing, there’s an accepted methodology to rely on reports from reputable human rights organizations. Sometimes, when conditions are unclear or ambiguous or there is a dispute in the documentation, then we often get expert opinions. But in the context of a stay of removal, you have a very short time to get your evidence together and there is no option really except to get any

evidence that is available, which may include examples of similarly situated persons, as in this case.”

Although Annis upheld the removals officer’s decision to reject the deferral request, Peter may still succeed in postponing his deportation. The judicial review challenged the constitutionality of a law that bars failed refugee claimants from obtaining a pre-removal risk assessment within 12 months of the rejection of their claim, as well as the removals process as a whole, and Annis’ ruling has been appealed to the Federal Court of Appeal.

Jackman and the association, which intervened in the case, argued both the restriction on pre-removal risk assessments and the removals process as a whole violate s. 7 of the Charter of Rights and Freedoms.

Richard Wazana, who acted for the association in Peter, says the 12-month bar on risk assessments opens up cracks in the removals system because it assumes claimants have had their risk assessed during their refugee hearing. In fact, he says there are many failed refugee claimants who never have their risk assessed who could, as a result, be deported into danger.

“For instance, if the identity of the claimant was not confirmed at the hearing or they were found lacking in credibility or if a person was found to be excluded for past crimes, none of these people received an actual risk assessment.”

In addition, Wazana says the bar is too high for a pre-removal risk assessment in the removals system. “The onus should be on the state to ensure it doesn’t return people to a risk of torture whereas the onus really now is on applicants to make a case to an enforcement officer that their life is at risk,” he says.

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