Moffat v. Canada (Citizenship and Immigration)

Moffat v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2019-07-05
Neutral citation
2019 FC 896
File numbers
IMM-3484-18
Notes
Reported Decision A correction was made on July 9, 2020.
Decision Content
Date: 20190705
Docket: IMM-3484-18
Citation: 2019 FC 896
Ottawa, Ontario, July 5, 2019
PRESENT: Mr. Justice Annis
BETWEEN:
SANDY SHENNA MOFFAT
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
JUDGMENT AND REASONS
I. Introduction
[1] This is an application for judicial review under subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [the IRPA] of a Refugee Protection Division [RPD] decision dated July 3, 2018 [the Decision]. The RPD determined that the Applicant would not be subject to risk of persecution, danger of torture, risk to her life or risk of cruel and unusual treatment or punishment if removed to St. Lucia under sections 96 and 97 of the IRPA.
II. Background
[2] The Applicant’s narrative will be briefly summarized below, though I make no determination as to the truth of its contents.
[3] The Applicant was born in St. Lucia in 1989. After being outed as bisexual, the Applicant fled the country when she was 17, fearing that her life was threatened by her boyfriend Brian and the community.
[4] The Applicant’s mother abandoned her at an early age and she lived with her grandmother. At the age of 14, she had a yearlong relationship with a female friend, while also dating boys. The Applicant then met Brian who was a few years older and well-off, albeit short-tempered and prone to jealousy. In June 2006, she met a new friend named Erica, with whom she shared a secret romance in January 2007.
[5] The Applicant’s difficulties began when Brian learned of her relationship with Erica. He did so by surprise when first seeing the couple through a “window door” from outside her grandmother’s home where she lived. Brian then created a loud scene and threatened her. Later, Brian told Erica’s boyfriend about the lesbian relationship. He in turn assaulted Erica, and spread rumours that the Applicant and Erica were lesbians.
[6] Brian also became angry and assaulted the Applicant on a number of occasions, once so badly that she was hospitalized for a few days. Twice the Applicant reported the beatings to police, but they took no action. As a result of the beatings and fears that her life was at risk, she left St. Lucia.
[7] The RPD identified a number of issues related to the Applicant’s credibility, and found that she had not met the onus of presenting credible evidence to support the allegations that form the basis of her claim on a balance of probabilities.
[8] The RPD identified several inconsistencies and improbabilities in the Applicant’s testimony which are summarized as follows:
The Applicant did not explain the contradictory evidence that she obtained a passport in February 2005 but testified that she obtained the passport due to the threats made against her in 2006;
There was contradictory evidence regarding Brian’s discovery of the Applicant having sex with Erica:
Whether Brian snuck in through the “window door” or the Applicant opened the door for him;
Whether Erica took her things and ran out while Brian grabbed and slapped the Applicant, or whether Erica left by the front door before the Applicant let Brian into the house;
In oral evidence, the Applicant omitted that Brian had threatened to kill her, as stated in her Personal Information Form [PIF];
In oral evidence, the Applicant omitted that she called Erica to say that Brian would not tell anyone, but that they could not be together, as stated in the PIF;
The Applicant testified that neighbours heard the shouting, came out of their houses, learned what was happening, and they spread the word. However, the PIF stated that it was Erica’s boyfriend who spread the word and did not mention the neighbours;
The Applicant did not cover the “window door” of her house as there were no houses in the back, only a road. However, she also stated that Brian would walk to the house from the back road. The Applicant did not explain why people walking along the road could not see into the home.
The Applicant’s testimony and PIF were not consistent regarding her reports of the beatings to the police. The Applicant testified that she went to the police three times: the first time they turned her away, the second time they would not listen because they do not like bisexual people, and the third time the police said that it was not important and did not give her a chance to tell her story. However, in the PIF the Applicant indicated that she reported to the police two times, but that each time, the officer said it was a “love thing” and not police business;
There was contradictory evidence regarding the Applicant’s contact with Erica after they were caught having sex;
There was contradictory evidence in the PIF and oral testimony regarding the manner and timing of Brian’s approaches to the Applicant’s grandmother after the Applicant arrived in Canada and threats that he would kill the Applicant;
The Applicant’s evidence regarding how she came to Canada and who she stayed with was not forthright; and
The PIF addendum referred to new threats by Brian made in October 2017 reported to the Applicant via her sister. However, this was not supported by a letter or affidavit.
[9] The RPD also considered that the Applicant arrived in Canada on June 17, 2007 when she was 17 years old, but did not claim refugee protection until October 26, 2012, more than five years later. The RPD acknowledged that the Applicant was a minor when she arrived in Canada, but also noted that she reached the age of majority five months after she arrived. The Applicant’s mother had successfully claimed refugee protection in Canada. The Applicant may not have had contact with her mother, but she had a family friend in Canada and other friends who could have directed her. The Applicant has ten years of education and was resourceful enough to get her own passport when she was 15 years old. The Applicant could have used the internet to inform herself about the refugee claim process, and she could have consulted a lawyer at any time. The RPD concluded that this delay supported its finding that the Applicant lacks subjective fear and was not persecuted in St. Lucia for her alleged sexual orientation.
[10] Finally, the RPD reviewed a psychological report drafted by Dr. Gerald M. Devins, dated June 13, 2013, diagnosing the Applicant with a schizoaffective disorder [the Report]. The RPD gave the Report little evidentiary weight, as it was based on a one-hour interview, was five years old, and was not followed up by any psychiatric treatment, although the Report recommended that the Applicant undertake treatment.
[11] The RPD concluded that the Applicant is neither a Convention refugee nor a person in need of protection, and consequently dismissed the Applicant’s claim. The Applicant now seeks judicial review of this Decision.
III. Issues
[12] The Applicant raises three issues relating to the RPD’s factual findings:
a) Did the RPD err in finding that the Applicant was not credible?
b) Did the RPD err by failing to consider the Gender Guidelines?
c) Did the RPD err in assigning little weight to the psychological report mitigating credibility inconsistencies of the Applicant?
IV. Standard of review
[13] The first and third issues relate to weight assessment findings of fact, including the assignment of weight to the reliability of medical reports on relevant factors, while the second issue is an alleged fact-finding process error resulting from the failure to consider a relevant factor. The standard of review for the three issues concerning findings of fact is as follows:
With respect to the RPD’s findings of fact, inferential facts, and the factual component of questions of mixed fact and law where the legal issue is not extricable from the facts, fact-finding process errors are reviewed on a correctness standard, while fact-finding weight assessment errors are reviewed on a reasonableness standard, but accorded the highest deference. The fact can only be set aside if the error is plain to see, without recourse to a reasonability analysis. The same standard applies to the review of the inference drawing step of an inferred fact: Jean Pierre v Canada (Immigration and Refugee Board), 2018 FCA 97 at paras 51-53;Housen v Nikolaisen, [2002] 2 SCR 235, 2002 SCC 33 at paras 21-23; Kallab v Minister of Citizenship and Immigration, 2019 FC 706.
The outcome of the review of the factual issues is thereafter integrated and considered with the remaining issues to determine whether the decision falls within a range of possible, acceptable outcomes in respect of the facts and law and justified with transparent and intelligible reasons: Dunsmuir v New Brunswick, [2008] 1 SCR 190, 2008 SCC 9.
V. Analysis
A. Did the RPD err in finding that the Applicant was not credible?
[14] The Applicant advances a number of submissions that fundamentally ask this Court to reweigh the evidence, arguing that:
the RPD identified minor inconsistencies of limited value to assessing the risk of persecution upon her removal to St. Lucia;
the RPD misapprehended the facts, by focusing on selective portions of her evidence, and that for this reason its decision is unreasonable;
the RPD undertook a microscopic examination of her testimony, and it expected an encyclopaedic recitation of the evidence from her PIF narrative;
the RPD put the Applicant to a memory test and thereby wrongfully assessed her credibility; and
the evidence or testimony with respect to whether a claimant travels on false documents, destroys travel documents or lies about them upon arrival is peripheral and of very limited value to a determination of credibility.
[15] I find that no fact-finding process errors arise, while the negative credibility findings are supported by evidence, with no error plain to see. In effect, the Applicant is asking the Court to reweigh the evidence which it cannot do. Accordingly, there is no basis to conclude that the RPD’s factual findings are unreasonable, or that there exists any other ground that would permit this Court to interfere with the RPD’s conclusion that the Applicant was not credible.
B. Did the RPD err by failing to consider the Gender Guidelines?
[16] The Applicant argues that there was no indication that the RPD considered the Chairperson Guidelines 4: Women Refugee Claimants Fearing Gender-Related Persecution [Guidelines]. She argues that the RPD was insensitive with respect to the peculiar circumstances of the Applicant as directed by the Guidelines, and that it failed to apply specialized knowledge in assessing the Applicant’s claim, as someone who had suffered domestic violence and abuse. As such, the Applicant maintains that the RPD erred in its assessment of her claim.
[17] The difficulty with the Applicant’s submissions is that she does not refer to specific instances in which the RPD exhibited a lack of sensitivity. Thus, there is no indication that the RPD was not sensitive to the Applicant’s personal situation during the hearing or in assessing the evidence. Moreover, there were other problems with the Applicant’s testimony, particularly the delay of five years in bringing forward her refugee claim while residing in the country without proper immigration status, which was not accounted for and cannot be explained by simply pointing to the Guidelines.
[18] The Guidelines are not a cure for every evidentiary deficiency and do not need to be specifically mentioned when they are considered (Moya v Canada (Citizenship and Immigration), 2016 FC 315 at paras 36-38, Karanja v Canada (Minister of Citizenship and Immigration), 2006 FC 574 at paras 5-7). I agree with the Respondent that no reviewable error arises with respect to this issue.
C. Did the RPD commit a reviewable error by assigning little weight to the expert psychological assessment and thereby fail to consider the impact of the Applicant’s mental state on her testimony?
(1) Introduction: the nature and scope of the Report
[19] The Report was drafted by Dr. Gerald M. Devins, who holds a Ph.D. in Clinical Psychology and is registered as a Clinical Psychologist. Dr. Devins essentially drafted a psychological assessment of the Applicant a few days after interviewing her on May 27, 2013. This five-page Report contains a statement of Dr. Devins’ qualifications and experience, his approach to the assessment, and sets forth a recitation of the Applicant’s narrative, including his clinical impressions following their meeting and several recommendations to the RPD member.
[20] Of note, the Report contains Dr. Devins’ opinion about three matters of relevance to the underlying refugee proceedings, namely: 1) the Applicant’s psychological disorders and their impact on her competency to testify; 2) the potential misconception of her credibility when testifying as a result of these disorders; and 3) the expected consequences of her removal to St. Lucia.
[21] While the Applicant did not raise the opinions expressed in the Report about risks upon removal to St. Lucia, or the issue of appointing a Designated Representative before the RPD, I will nevertheless address these remarks, in addition to the other opinions and recommendations contained in the Report in the analysis that follows.
[22] The Report’s three opinions, along with specific symptomology references of particular relevance, with my emphasis, are as follows:
(a) Designated representative - competency to testify
“Ms. Moffat reported symptoms indicative of major mental illness [later described as schizoaffective disorder, depressive type (29.570) in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (4th ed., DSM-IV)]
[…] She anticipates that these symptoms will interfere significantly with her ability to testify at the Refugee Hearing. I discussed the notions of a Designated Representative with her and Ms. Moffat indicated receptivity. This should be given consideration.”
(b) Prediction of unclear and inconsistent evidence – misleading credibility assessment
“Ms. Moffat will be nervous and inhibited at the Refugee Hearing. She will be intimidated by people in authority. It will be important to exercise sensitivity during the questioning to avoid re-traumatizing her […] Symptoms may arise during the Hearing in the form of difficulty understanding questions, requests for questions to be repeated or rephrased, inability to retrieve specific details of the past, or an apparent inability to formulate a coherent response. Stress-related cognitive problems can lead to difficulties in providing clear and consistent testimony. Should such problems become evident, it will be important to understand that they likely reflect the disorganizing effects of major mental illness and/or traumatic stress rather than an effort to evade or obfuscate.”
(c) Treatment interruption and relapse - risk on removal to the country of origin
“She attempted to take her life by ingesting flammable fluid. On another occasion, she attempted to take her life by jumping from a tree.” [In St. Lucia, evidence not found in the record]
[…] The uncertainty of her immigration status is intensely threatening.
Ms. Moffat acknowledged suicidal thoughts while in St. Lucia, but denied current suicidal ideation.
[…] She is convinced she will be targeted in St. Lucia. The prospect of removal is too threatening to contemplate. When asked about her plans if she cannot stay in Canada, Ms. Moffat averted her gaze slowly and replied helplessly, ‘If they say, ‘No,’ I will cry. I don’t know what I will do.’”
CLINICAL IMPRESSION
Ms. Moffat satisfies diagnostic criteria for schizoaffective disorder, depressive type (295.70) in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (4th edition, DSM-IV). She presents significant stress-response symptoms and stress-related adjustment problems. She requires psychiatric evaluation and treatment. With her permission, I request that Ms. Moffat’s Counsel assist her in finding a physician who can refer her for psychiatric evaluation and treatment. Such treatment must not be interrupted. Ms. Moffat’s condition can improve with appropriate care and guaranteed freedom from the threat of removal. If refused permission to remain in Canada, her condition will deteriorate (e.g., possible decompensation). As noted, it will be impossible for Ms. Moffat to feel safe anywhere in St. Lucia.
Appointment of a Designated Representative should be considered.
I hope that this report will assist you and the courts in determining the best possible outcome for Ms. Moffat.
[23] At the outset of the Report, Dr. Devins stated that since 1966, he has conducted psychological assessments of more than 4,300 refugee claimants and others seeking permission to stay in Canada. Recall that the Report is dated June 1, 2013. From other more recent decisions in which his reports have been considered, I understand that Dr. Devins continues to regularly provide psychological assessments on behalf of refugee claimants, i.e. 5,200 as of 2017 (Brown v Canada (Citizenship and Immigration), 2017 FC 710 at para 80).
[24] At paragraph 13 of the Decision, the RPD explained why it gave the Report little evidentiary weight:
[13] I have reviewed psychological report from Dr. Devins dated June 13, 2013. The diagnosis was schizo-affective disorder. I give this report little evidentiary weight, as it was based on a one hour interview, is five years old and was not followed up by any psychiatric treatment as recommended. In addition, I have considered the remarks made by Justice Annis in [Czesak] v Canada, [2013 FC 1149] … when he stated “... decision-makers should be wary of reliance upon forensic expert evidence obtained for the purpose of litigation, unless it is subject to some form of validation.” The claimant did not appear to have any problems in testifying.
[Italicized passage in RPD Decision.]
[25] I agree with the RPD’s conclusion that the Report should be given little weight, for the reasons described above, among further reasons set forth in greater detail below. I will further supplement my reference to reliability issues facing unchallenged expert reports, while describing the particular difficulties expert reports pose for RPD members, by providing further analysis of the Report at issue here. In so doing, I will refer to some of the factors that the RPD may apply to assess the probative value and reliability of an expert medical or psychological report. These remarks extend to considerations of whether the RPD may declare expert reports inadmissible as opposed to uniquely considering their weight, in addition to considering if the RPD may exercise a similar cost/benefit “gatekeeping function” as trial judges.
(2) The potential dangers of expert evidence
[26] In the recent decision of White Burgess Langille Inman v Abbott and Haliburton Co, 2015 SCC 23 [White Burgess], the Supreme Court of Canada repeated concerns about potential dangers arising from the misuse of expert evidence, which it previously raised in R v Mohan, 1994 CanLII 80 (SCC), [1994] 2 SCR 9 [Mohan] and several other decisions. These comments referred to juries as the triers of fact, but they also apply to other triers of fact, namely judges sitting without a jury and arguably to administrative tribunal decision-makers (see for example Cinar Corporation v Robinson, [2013] 3 SCR 1168 at para 49 concerning a civil action without a jury; see also Melhi v Canada (Citizenship and Immigration), 2018 CanLII 107568 (CA IRB), in which the Immigration Division applied the Mohan test (at paras 20-33 to expert testimony while acknowledging as follows at para 25: “[w]hile it may not be completely settled as to whether the Mohan test should be applied in the administrative law context, even without applying the Mohan criteria strictly, the discretion to admit evidence and/or hear the testimony of a witness rests with the Immigration Division.”; see also Sandhu v Canada (Public Safety and Emergency Preparedness), 2018 CanLII 133401 (CA IRB) at paras 28-29).
[27] The Supreme Court’s concerns are found at paras 17 and 18 of White Burgess as follows, with my emphasis:
[17] We can take as the starting point for these developments the Court’s decision in R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9. That case described the potential dangers of expert evidence and established a four-part threshold test for admissibility. The dangers are well known. One is that the trier of fact will inappropriately defer to the expert’s opinion rather than carefully evaluate it. As Sopinka J. observed in Mohan:
There is a danger that expert evidence will be misused and will distort the fact-finding process. Dressed up in scientific language which the jury does not easily understand and submitted through a witness of impressive antecedents, this evidence is apt to be accepted by the jury as being virtually infallible and as having more weight than it deserves. [p. 21]
(See also D.D., at para. 53; R. v. J.-L.J., 2000 SCC 51 (CanLII), [2000] 2 S.C.R. 600, at paras. 25-26; R. v. Sekhon, 2014 SCC 15(CanLII), [2014] 1 S.C.R. 272, at para. 46.)
[18] The point is to preserve trial by judge and jury, not devolve to trial by expert. There is a risk that the jury “will be unable to make an effective and critical assessment of the evidenceˮ: R. v. Abbey, 2009 ONCA 624 (CanLII), 97 O.R. (3d) 330, at para. 90, leave to appeal refused, [2010] 2 S.C.R. v. The trier of fact must be able to use its “informed judgment”, not simply decide on the basis of an “act of faith” in the expert’s opinion: J.-L.J., at para. 56. The risk of “attornment to the opinion of the expertˮ is also exacerbated by the fact that expert evidence is resistant to effective cross-examination by counsel who are not experts in that field: D.D., at para. 54. The cases address a number of other related concerns: the potential prejudice created by the expert’s reliance on unproven material not subject to cross-examination (D.D., at para. 55); the risk of admitting “junk science” (J.-L.J., at para. 25); and the risk that a “contest of experts” distracts rather than assists the trier of fact (Mohan, at p. 24). Another well-known danger associated with the admissibility of expert evidence is that it may lead to an inordinate expenditure of time and money: Mohan, at p. 21; D.D., at para. 56; Masterpiece Inc. v. Alavida Lifestyles Inc., 2011 SCC 27 (CanLII), [2011] 2 S.C.R. 387, at para. 76.
[28] The potential dangers of expert reports are exacerbated in most refugee proceedings because of their one-sided quasi-adversarial nature. In such cases, only the claimant is in full adversarial mode, with the Minister rarely appearing at the hearing. This provides a distinct advantage in these proceedings, and particularly it would appear in relation to a claimant’s use of expert reports. The respondent Minister rarely participates in these proceedings (despite having the power to do so under section 29 Refugee Protection Division Rules, SOR/2012-256 [RPD Rules]) due to many factors. Most of these barriers relate to the cost and scarcity of valuable legal and related expert resources to respond to the ever-increasing caseload and legal challenges faced in refugee and immigration matters. The Minister must respond to cases arising in a smorgasbord of different decision-making forums, each highly judicialized by the wide number of decisions subject to judicial review and the variability of their context, not to mention that these decisions are often both highly complex and/or controversial. This is unlikely to change.
[29] If the Minister wanted to challenge these reports, it would presumably need to engage experts in the field at issue, with perhaps an opportunity to interview and assess the claimants in a manner somewhat similar to that carried out by the claimants’ own experts. This would be followed by drafting a contradictory report. It would also entail procedures to obtain corroborating information, or even relevant information, which is not furnished to the RPD as in this matter. While expert witnesses are permitted to testify before the RPD (see section 44 of the RPD Rules), I am not aware of circumstances in which physicians or other experts have been called to testify before the RPD and were further subject to cross-examination by lawyers, as is the norm in trial courts and some administrative tribunals. If the parties’ expert reports are significantly at odds, it is generally recognized that only cross-examination before the decision-maker can allow them to be appropriately weighed.
[30] However, since this is not the ordinary procedure followed before the RPD, it is therefore left to the member to assess and provide reasons explaining the degree of weight attached to an expert report. The member must do so however, without ever being able to respond to the substantive nature of the opinions contained in the expert report. Without the Minister’s participation, backed up by an opposing expert report containing opinions challenging those of a claimant’s expert, the RPD is not in a position to question the substance of the opinions provided. Indeed, this Court has ruled that the RPD does not have the psychological expertise to reject the substantive opinions in an expert’s report, such as a diagnosis, see Trembliuk v Canada (Minister of Citizenship and Immigration), 2003 FC 1264 at paras 11-12 with my emphasis:
[11] The RPD, in its reasons, wrote:
... I do not accept this diagnosis because I find the witness not to be a credible or a trustworthy witness.
[12] While it was open to the RPD to determine the weight, if any, to be given to the assessment provided by the psychologist, it was not open to the RPD to reject the psychologist's diagnosis. While the RPD is undoubtedly a specialized tribunal as noted by Justice Décary in the quotations from Aquebor appearing earlier in these reasons, it is certainly not an expert tribunal in the area of psychological assessment.
[31] The final sentence of this excerpt confirms that the RPD also does not have the expertise to reduce the weight of the substantive opinion. Rather, it can only reduce the weight of a substantive medical or psychological expert opinion by relying on collateral considerations, such as those relied upon by the RPD member in the case at hand to give little weight to Dr. Devins’ Report. If the member fails to consider a relevant expert opinion, or to provide appropriate or sufficient reasons for assigning little weight to the expert report, the decision will be set aside and sent back to be heard by another member, who will face the same difficulties.
[32] The decision in Atay v Canada (Citizenship and Immigration), 2008 FC 201 [Atay] which the Applicant relies on is a typical example of this outcome. Atay referred to similar expert reports drafted by Dr. Devins and another doctor. Dr. Devins’ report contained a similar credibility-related opinion that if problems occurred in the Applicant’s testimony “it will be important to understand that they likely reflect the disorganizing effects of traumatic stress rather than an effort to evade or obfuscate”(at para 15). In Atay, the Court found that “[a]s the contents of the psychological report were relevant to the Board’s credibility findings, the Board should have taken the time to consider how the applicant’s medical condition affected his behaviour before making its credibility finding” (at para 32).
[33] In Atay, the applicant provided an overview of the relevant supporting jurisprudence at the time cited and relied upon by the Court. The description of this jurisprudence, which is still generally relied upon in this Court, can be found at para 16 of Atay as follows, with my emphasis:
[16] The applicant submitted that as the Board accepted that the applicant suffered from chronic posttraumatic stress disorder, it was obliged to consider the impact of this condition on the quality of the applicant’s evidence. The applicant relied on a number of authorities including Min v. Canada (Minister of Citizenship and Immigration), 2004 FC 1676 (CanLII), for the proposition that where there is medical evidence before the Board that might explain shortcomings in an applicant’s testimony, it is incumbent on the Board to consider and give appropriate weight to such evidence. It is an error for the Board to base a decision on a discrepancy between information given at the port of entry and information given later in the process without taking into account the evidence of the applicant’s psychological state (Singh v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 963). Simply referring in its reasons to a psychological report addressing posttraumatic stress disorder is not sufficient; the Board must consider whether the psychological circumstance might help explain an omission, lack of detail, or confusion regarding the events if these are the exact cognitive errors referred to in the psychologist’s report (Rudaragi v. Canada (Minister of Citizenship and Immigration.), 2006 FC 911 (CanLII)). The Board cannot merely state that it considered the report, it must provide some meaningful discussion of how the medical condition affects its decision before making a negative credibility finding (Fidan v. Canada (Minister of Citizenship and Immigration), 2003 FC 1190 (CanLII), [2003] F.C.J. No. 1606). The applicant submitted that psychological impairment must be taken into account, even where the main issue is plausibility of testimony (Chen v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 1070).
[34] In Atay, this Court accepted those arguments, at paras 29-32. In this matter, the Applicant has cited several other decisions of this Court essentially standing for the same proposition (Khawaja v Canada (Minister of Citizenship and Immigration) [1999] FCJ No 1213 at para 8; B.C. v Canada (Minister of Citizenship and Immigration), 2003 FC 826 at paras 15-20; Mendez Santos v Canada (Citizenship and Immigration), 2015 FC 1326 at paras 16-19; Olalere v Canada (Citizenship and Immigration), 2017 FC 385 at paras 50-60).
[35] Just recently, this Court has made a similar finding with respect to a psychiatric report in Mowloughi v Canada (Citizenship and Immigration), 2019 FC 270 at paras 67-70 [Mowloughi], with my emphasis:
[67] The [PRRA] Officer gives little weight to the psychiatric evidence related to the Applicant’s spouse and his own mental condition on the grounds that such evidence is based upon the Applicant’s statements and the doctors have no first-hand knowledge of the events the Applicant says occurred in Iran.
[68] Once again, the Officer misses the point of this evidence. It is corroborative of the Applicant’s story because the symptoms are consistent with people who have suffered what the Applicant says he and his wife have suffered. For example, Dr. Lisa Andermann finds that the Applicant suffers from Post-Traumatic Stress Disorder symptoms that are “consistent with… someone who has been beaten and tortured.” And the Iranian doctor indicates that the Applicant’s spouse suffers from anxiety and depression, which is consistent with her evidence of harassment by the authorities.
[69] The Officer gives this evidence little weight because the doctors have no first-hand knowledge of what the Iranian authorities have done to the Applicant and his wife. But the evidence was not produced to prove first-hand knowledge. The medical opinions of these doctors are valid circumstantial evidence which corroborates the Applicant’s account. The Officer seems to be indicating that he will only accept and assess direct evidence which, as the Supreme Court of Canada pointed out in Kanthasamy v Canada (Citizenship and Immigration), 2015 SCC 61 at para 44 [Kanthasamy], is unreasonable:
[36] This Court cannot comment with certainty on the influence that such expert reports have had on outcomes in refugee proceedings. That said, refugee claimants regularly rely on them. This may be particularly so after the Supreme Court rejected an immigration officer’s assignment of little weight to a medical report in a humanitarian and compassionate [H&C] application in Kanthasamy v Canada (Citizenship and Immigration), 2015 SCC 61 [Kanthasamy], as followed in the decision in Mowloughi above. In Kanthasamy, the Court commented on the error of the officer in an H&C matter as follows at para 47:
[47] … Once she accepted that he had post-traumatic stress disorder, adjustment disorder, and depression based on his experiences in Sri Lanka, requiring further evidence of the availability of treatment, either in Canada or in Sri Lanka, undermined the diagnosis and had the problematic effect of making it a conditional rather than a significant factor.
[37] From this passage, it is not clear whether the Supreme Court recognized that the officer had no option but to accept the report for admissibility purposes. The officer could not have substantively taken issue with the opinions set forth in the report, lacking both evidence of an opposing expert report, normally found in trials, or the expertise to challenge those opinions. It is also not clear whether the officer’s point was that the expert cannot provide evidence which if not entered into the record by the claimant, vitiates the opinion it is based on. It goes without saying that the decision-maker’s lack of expertise is the tautological reason why parties have recourse to experts in adversarial proceedings in the first place.
[38] It is just this glaring disadvantage faced by most decision-makers in refugee and immigration procedures that they have no option but to accept the substantive opinions of medical experts, which requires them to focus on collateral issues affecting the weight or scope of the opinions.
[39] This is precisely the point I am addressing here. Before the RPD substantively accepts the Report, it could benefit from applying the assessment factors regularly adopted by judges in trials to determine whether the expert has adequately demonstrated that the opinions in his or her report have been sufficiently proven to be reliable.
[40] These factors have been developed by the Supreme Court and Ontario Court of Appeal in their efforts to ensure that the potential dangers of expert evidence are constrained by requiring such reports to pass a “gate-keeping” process before admitting them as evidence. The factors used in this process can equally be applied to assess the weight of a report’s reliability. Reliability requirements are not considered technical evidentiary rules. They are the substance of what decision-makers do in assigning weight to evidence. As shall be seen, of particular relevance and utility is a list of reliability-demonstrating questions developed by the Ontario Court of Appeal in the matter of R v Abbey, 2009 ONCA 624, (leave to appeal dismissed [2010] SCCA No 125) [Abbey]. These questions are especially useful when assessing the reliability of the opinions based primarily on the experience of the expert (as opposed to scientifically develop statistical testing) as is often the case in reports considered by the RPD. An obvious advantage of assessing a report’s reliability is that such findings are highly factual and therefore generally not reviewable by the courts so long as there is some evidence to support the finding. The analysis that follows describes these reliability assessment tools and applies them to Dr. Devins’ report.
(3) The test for the admissibility of expert reports
[41] The Supreme Court decision of Mohan, as interpreted and reformulated by the Ontario Court of Appeal in Abbey describes the principles relied upon to address the admissibility of expert reports.
[42] Unlike lay witnesses of fact, expert opinion evidence is presumptively inadmissible. Expert evidence is given this distinct treatment because it presents the trier of fact with a ready-made opinion as to a factual inference that should be drawn from the information the expert has accumulated from his or her work and experience and has combined with other evidence. For this reason, “[e]xpert evidence has the real potential to swallow whole the fact-finding function of the court” (Abbey at para 71).
[43] As such, in trial courts, expert opinion evidence can be admitted only if the party calling it satisfies the four preconditions to admissibility, on a balance of probabilities, and further passes the discretionary gatekeeping step that balances the potential costs and benefits of admitting the evidence in order to decide whether those potential benefits justify the costs. In this regard, “benefits” refers to the probative value of the evidence, while “costs” refers to the “distracting and time-consuming thing expert testimony can become” (R v D.D., 2000 SCC 43 at para 57 [D.D.]).
[44] The Supreme Court has recently summarized the law regarding the admissibility of expert opinion evidence in White Burgess at paras 22-24, which read as follows:
[22] Abbey (ONCA) introduced helpful analytical clarity by dividing the inquiry into two steps. With minor adjustments, I would adopt that approach.
[23] At the first step, the proponent of the evidence must establish the threshold requirements of admissibility. These are the four Mohan factors (relevance, necessity, absence of an exclusionary rule and a properly qualified expert) and in addition, in the case of an opinion based on novel or contested science or will science used for a novel purpose, the reliability of the underlying science for that purpose: J.-L.J., at paras. 33, 35-36 and 47; Trochym, at para. 27; Lederman, Bryant and Fuerst, at pp. 788-89 and 800-801. Relevance at this threshold stage refers to logical relevance: Abbey (ONCA), at para. 82; J.-L.J., at para. 47. Evidence that does not meet these threshold requirements should be excluded. Note that I would retain necessity as a threshold requirement: D.D., at para. 57; see D. M. Paciocco and L. Stuesser, The Law of Evidence (7th ed. 2015), at pp. 209-10; R. v. Boswell, 2011 ONCA 283 (CanLII), 85 C.R. (6th) 290, at para. 13; R. v. C. (M.), 2014 ONCA 611 (CanLII), 13 C.R. (7th) 396, at para. 72.
[24] At the second discretionary gatekeeping step, the judge balances the potential risks and benefits of admitting the evidence in order to decide whether the potential benefits justify the risks. The required balancing exercise has been described in various ways. In Mohan, Sopinka J. spoke of the “reliability versus effect factor” (p. 21), while in J.-L.J., Binnie J. spoke about “relevance, reliability and necessity” being “measured against the counterweights of consumption of time, prejudice and confusion”: para. 47. Doherty J.A. summed it up well in Abbey, stating that the “trial judge must decide whether expert evidence that meets the preconditions to admissibility is sufficiently beneficial to the trial process to warrant its admission despite the potential harm to the trial process that may flow from the admission of the expert evidence”: para. 76.
(See also: R v Bingley, [2017] 1 SCR 170 at paras 15-17.)
[45] With these principles in mind, the current Common Law test for the admissibility of expert evidence can be distilled as follows:
1) The expert evidence must meet the four threshold requirements for admissibility (the Mohan factors), that is:
a) The evidence must be logically relevant, i.e. the evidence must have the tendency, as a matter of human experience and logic, to make the existence of a fact in issue more or less likely than it would be without that evidence (not to be confused with legal relevance) (Abbey at paras 82-85);
b) The evidence must be necessary to assist the trier of fact, ie. the trier of fac