In this decision from October 23, 2013 Justice Mactavish held that while Mr. Freeman had demonstrated that his application for landing was dealt with in a way that violated procedural fairness, such violations did not amount to abuse of power or bad faith.
Mr. Freeman, born Joseph Pannell, is an American citizen involved in shooting of a Chicago police officer in 1969 and charged with attempted murder. In 1974, he skipped bail and fled to Canada where he lived under an assumed name for some 30 years, got married and was gainfully employed.
In 2004, he was detained and four years later extradited to the US. In 2008, he pled guilty to one count of aggravated battery for which he served a 30-day sentence in jail and donated $250,000 to a charity. Later in 2008, Mr. Freeman’s wife sponsored him for landing in Canada.
Mr. Freeman was found inadmissible to Canada under 36(1)(f) of the IRPA under serious criminality for his conviction in the US and under 34(1)(f) of the IRPA because there were reasonable grounds to believe that he had been a member of the terrorist organization – the Black Panther Party. His wife’s appeal of the inadmissibility finding was held in abeyance pending the outcome of this application.
In October 2012, the Ministers brought a motion for judgement seeking to have the inadmissibility finding set aside as lacking the requisite analysis and the matter referred back to a different officer for redetermination. The motion was dismissed holding that the inadmissibility decision should be brought to a judicial review hearing before the Court.
The Ministers brought a motion for non-disclosure under section 87 of the IRPA. Mr. Freeman brought a motion seeking an appointment of a Special Advocate to represent his interests in the section 87 proceeding. The Court ordered the Ministers to provide to Mr. Freeman additional information on the basis that the Ministers had not established that the disclosure of that information would be injurious to national security or endanger the safety of any persons.
Mr. Freeman’s Arguments
Mr. Freeman did not challenge the inadmissibility for serious criminality but challenged the finding that he was a member of a terrorist organization. Mr. Freeman asserted that the IAD could not consider his wife’s appeal as long as the section 34(1)(f) finding was maintained.
He asserted that Canadian authorities acted in bad faith and that he was denied procedural fairness in the processing of his application for landing. His arguments were as follows:
- The record shows that the email correspondence between immigration officials after his application was filed describe him as a former member of the Black Panthers and a Black Panthers member, which reflects an assumption that he was a member of the organization before Mr. Freeman was heard on the issue.
- Consular officials in November 2009 determined that there was insufficient evidence to support a refusal for his application for landing, but his Temporary Residence Permit was still refused.
- The Minister’s letter to a Member of Parliament dating to September 24, 2010, provided reasons for the decision refusing his application that did not appear in the November 13, 2009 refusal letter to Mr. Freeman.
- The record demonstrates that no interview was granted to Mr. Freeman for assessment of credibility because the officials suggested that he had forty years to come up with a story. This suggests a prejudgement that he was a liar.
- As evidence of bad faith, the Minister of Citizenship and Immigration erroneously referred to Mr. Freeman as “cop killer” in the House of Commons while the decision was not yet made as to his landing. In reality, the police officer was injured, not killed.
- The officials intentionally delayed the processing of his application for landing while continuing to seek evidence to bar him from Canada on security grounds.
- The Ministers’ motion for judgement seeking to have the inadmissibility finding set aside as lacking the requisite analysis did not represent a good faith attempt to resolve this matter. It was instead an attempt to prevent Mr. Freeman from having his allegations of bad faith aired in open court.
Mr. Freeman also challenged on constitutional grounds section 87.1 of the IRPA for granting discretion to the Court not to appoint a Special Advocate to represent his interests in section 87 proceedings.
The Ministers’ Arguments
The Ministers do not agree that there has been a breach of procedural fairness. They do concede that Mr. Freeman’s application for judicial review for the 34(1)(f) determination of membership in a terrorist organization should be granted due to inadequacy in the immigration officer’s the reasons.
Justice Mactavish concluded that this application is granted with respect to 34(1)(f) finding. The Court refused to address the constitutional challenge.
The Court began the analysis by stating that the duty of fairness owed to visa applicants tends to be on the lower end of the scale. However, the Court accepted that the decision at issue was of considerable importance to Mr. Freeman’s wife and family. Significant interests at stake militate in favour of a somewhat higher level of procedural fairness. The Court made the following findings with respect to procedural fairness:
- The choice of language in the officials’ emails describing Mr. Freeman as Black Panther member is troubling, but other emails from this period of time also recognized that what was at issue were allegations of membership.
- Although on November 4, 2009 consular officials had determined that there was insufficient evidence to support the refusal of his application for Temporary Residence Permit on security grounds, the record reveals that on November 6, 2009 a report was sent to consular officials that concluded that there were reasonable grounds to believe that he was a member of the Black Panthers.
- As for the letter to the Member of Parliament, this correspondence suggests that the officials had reasons for refusing the application that were not shared with Mr. Freeman, giving rise to fairness concerns of the process.
- Mr. Freeman was not afforded an interview even though there were serious issues of credibility in this case in light of his sworn denials of membership in the Black Panther Party. There was clearly an assumption by officials that there was no point of the interview. Mr. Freeman points to comments made by an immigration official in response to the suggestion that he should be accorded an interview in light of the credibility issues in his case:
If dealing with a different applicant. I might try to call into question subj’s credibility via a personal interview. However, Mr. Freeman has been dealing with these allegations for some 40 years and has likely concocted a very solid story by now. I don’t think that an interview would be very fruitful, but if you had a list of questions for me I am willing to try.
- As for the comment by the Minister in the House of Commons that Mr. Freeman was a “cop killer”, they are are ill-advised. However, the Minister was not personally involved in the processing of Mr. Freeman’s case. The Minister explicitly said so in the House of Commons. It has not been demonstrated that the Minister’s comments had any impact on the outcome of the case.
- Mr. Freeman was not persuasive that the delay is indicative of any abuse.
- Mr. Freeman also failed to persuade the Court that the Ministers’ motion for judgement that the 34(1)(f) finding was deficient was untoward.
The Court was satisfied that Mr. Freeman has been denied procedural fairness in this case. However, the Court has not been persuaded that the problems with the way that the case was handled amounted to bad faith or an abuse of power.
As for the remedy, Mr. Freeman asked to have the matter returned to a different officer for redetermination with specific directions as to how it should be carried out. He asked the Court to find that there is no evidence presently available that would support a finding that he was ever a member of the Black Panther Party and that it was a terrorist organization. The Court was not prepared to issue such directions.
The Court directed that Mr. Freeman be given 60 days to provide any additional submissions and the Ministers be given 4 months to make a decision. Serious considerations should also be given affording Mr. Freeman an interview.