Siad v. Canada (Secretary of State), (1996) 206 N.R. 127 (FCA)

• Judge: Isaac, C.J., McDonald, J.A., and Gray, D.J.
• Court: Federal Court of Appeal (Canada)
• Case Date: November 01, 1996
• Jurisdiction: Canada (Federal)
• Citations: (1996), 206 N.R. 127 (FCA)

Siad v. Can. (1996), 206 N.R. 127 (FCA)

MLB headnote and full text

Secretary of State of Canada (appellant) v. Ali Mohammed Siad (respondent)

(A-226-94)

Indexed As: Siad v. Canada (Secretary of State)

Federal Court of Appeal

Isaac, C.J., McDonald, J.A., and

Gray, D.J.

December 3, 1996.

Summary:

Siad, the son of deposed Somali President Mohammad Siad Barre, claimed refugee status in Canada. The Convention Refugee Determination Division found that Siad was excluded from refugee status 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 (articles 1F(a) and 1F(c) of the United Nations Convention Relating to the Status of Refugees). Siad applied for judicial review.

The Federal Court of Canada, Trial Divi­sion, in a decision reported at 77 F.T.R. 48, allowed the application and ordered a new hearing before a differently constituted panel. The Secretary of State appealed.

The Federal Court of Appeal allowed the appeal, set aside the judgment of the Trial Division and dismissed the application for judicial review.

Administrative Law - Topic 2491

Natural justice - Procedure - At hearing - Cross-examination - [See second Aliens - Topic 1331 ].

Administrative Law - Topic 2617

Natural justice - Evidence and proof - Disclosure - [See first Aliens - Topic 1331 ].

Aliens - Topic 1330.2

Admission - Refugees - Disqualification - Crimes against humanity - [See both Aliens - Topic 1331 ].

Aliens - Topic 1331

Admission - Refugees - Evidence - The Convention Refugee Determination Divi­sion (CRDD) found that Siad was excluded from refugee status 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 Federal Court of Canada, Trial Division, held that the CRDD breached natural justice in admit­ting the evidence of two witnesses, because the disclosure provided by the Minister regarding the anticipated evidence of the witnesses was inadequate - The Federal Court of Appeal found that Siad's counsel was dilatory in seeking disclosure and that it was not unfair for the CRDD to deny his belated request for disclosure - The court held that under the circum­stances, the disclosure by the Minister was adequate - See paragraphs 14 to 21.

Aliens - Topic 1331

Admission - Refugees - Evidence - The Convention Refugee Determination Divi­sion (CRDD) found that Siad was excluded from refugee status 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 Federal Court of Canada, Trial Division, held that the CRDD's admission of an expert's evidence in the absence of cross-examination was unfair since it was unsworn and contained information from unknown sources - The Federal Court of Appeal held that the Trial Division erred in holding that the expert's evidence was inadmissible - The CRDD was entitled to admit the statement if it considered it to be credible and trust­worthy (Immigration Act, s. 68(3)) - In the circumstances, an opportunity for cross-examination was not essential to the fairness of the hearing - See paragraphs 22 to 27.

Aliens - Topic 4096

Practice - Hearings - Cross-examination - [See second Aliens - Topic 1331 ].

Aliens - Topic 4502

Evidence - Duty to disclose - [See first Aliens - Topic 1331 ].

Aliens - Topic 4502

Evidence - Duty to disclose - The Federal Court of Appeal stated that "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" - See para­graph 17.

Cases Noticed:

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161; 68 C.C.C.(3d) 1, refd to. [para. 5].

Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; 58 N.R. 1, refd to. [para. 14].

Akthar v. Minister of Employment and Immigration (1991), 129 N.R. 71 (F.C.A.), refd to. [para. 15, footnote 2].

Ahani v. Canada (1996), 201 N.R. 233 (F.C.A.), refd to. [para. 15, footnote 2].

Tax Time Services Ltd. v. National Trust Co. (1991), 3 O.R.(3d) 44 (Gen. Div.), refd to. [para. 17, footnote 4].

Dionisopoulos v. Provias (1990), 45 C.P.C.(2d) 116 (Ont. H.C.), refd to. [para. 17, footnote 4].

Breivik v. Great Atlantic & Pacific Co. of Canada (1987), 58 O.R.(2d) 794 (H.C.), refd to. [para. 17, footnote 4].

Blackmore v. Slot All Ltd. (1985), 18 C.P.C.(2d) 181 (Ont. H.C.), refd to. [para. 17, footnote 4].

Leerentveld v. McCulloch (1985), 4 C.P.C.(2d) 26 (Ont. Master), refd to. [para. 17, footnote 4].

Fajardo v. Minister of Employment and Immigration (1993), 157 N.R. 392; 21 Imm. L.R.(2d) 113 (F.C.A.), refd to. [para. 23].

Mahendran v. Minister of Employment and Immigration (1991), 134 N.R. 316; 14 Imm. L.R.(2d) 30 (F.C.A.), refd to. [para. 24, footnote 5].

Giron v. Minister of Employment and Immigration (1992), 143 N.R. 238 (F.C.A.), refd to. [para. 24, footnote 6].

Rajaratnam v. Minister of Employment and Immigration (1991), 135 N.R. 300 (F.C.A.), refd to. [para. 24, footnote 6].

Dan-Ash v. Minister of Employment and Immigration (1988), 93 N.R. 33 (F.C.A.), refd to. [para. 24, footnote 6].

Okyere-Akosah v. Minister of Employ­ment and Immigration (1992), 157 N.R. 387 (F.C.A.), refd to. [para. 24, footnote 8].

Maldonado v. Minister of Employment and Immigration, [1980] 2 F.C. 302; 31 N.R. 34 (F.C.A.), refd to. [para. 24, footnote 8].

Villarroel v. Minister of Employment and Immigration (1979), 31 N.R. 50 (F.C.A.), refd to. [para. 24, footnote 8].

Cheung v. Minister of Employment and Immigration (1981), 36 N.R. 563 (F.C.A.), dist. [para. 26].

Kusi v. Minister of Employment and Immigration (1993), 65 F.T.R. 58; 19 Imm. L.R.(2d) 281 (T.D.), dist. [para. 26].

Authors and Works Noticed:

Anisman, Philip and Reid, Robert F., Administrative Law: Issues and Practice (1995), pp. 203 to 211 [para. 15, foot­note 3].

Laskin, John I., Disclosure Obligations of Tribunals and Counsel Representing Them, in Anisman, Philip and Reid, Robert F., Administrative Law: Issues and Practice (1995), pp. 203 to 211 [para. 15, footnote 3].

Counsel:

Leigh Taylor, for the appellant;

William J. MacIntosh, for the respondent.

Solicitors of Record:

George Thomson, Deputy Attorney Gen­eral of Canada, Ottawa, Ontario, for the appellant;

Wittchen, Schiffer & MacIntosh, Vancouver, British Columbia, for the respondent.

This appeal was heard on November 1, 1996, at Vancouver, British Columbia, before Isaac, C.J., McDonald, J.A., and Gray, D.J., of the Federal Court of Appeal. On December 3, 1996, McDonald, J.A., delivered the following reasons for the Court of Appeal.