Phillip v. Canada ( Minister of Citizenship and Immigration )
IMM-434-98
Rothstein J.
11/12/98
6 pp.
Application for judicial review of decision of IRB panel ordering female applicant to leave room with youngest child, so that questions could be asked of her other children, aged 5 and 8, in her absence-Applicant argued panel erred when it excluded her from hearing-Application allowed-Act, s. 69(2) providing proceedings before Refugee Division to be held in presence of person subject of proceedings, whenever practicable-Respondent arguing panel master of its own procedure-Clearly, Act, s. 69(2) meaning when practically possible for them to be present, applicants may not be excluded by panel-If precluding applicant from influencing or signalling children purpose sought by exclusion, other ways available, such as warning signalling could affect credibility-No justification for excluding female applicant-Requirement of presence of parties under Act, s. 69(2) mandatory-Furthermore, if wrongful exclusion of female applicant could be excused by provision of summary when she returned (which it cannot), summary provided here would have been inadequate for purpose-Also, Act, s. 69(4) providing where person subject of proceedings under 18 years of age, Refugee Division shall designate another person to represent that person in proceedings-Female applicant not designated as representative of infant children until after she had been excluded, children examined in her absence and she had been invited back into hearing-Proper practice to designate representative at outset in order to avoid risk of spoiling proceedings-Usual formalities when young children asked to give evidence not adhered to herein-If evidence to have any probative value, tribunal must establish that children understand right from wrong, importance of telling truth, and consequences of not telling truth-When tribunals conduct proceedings without regard for statutory requirements, as here, Court will speak out strongly so as to ensure that loud and clear guidance given for future proceedings-Question certified for appeal-Immigration Act, R.S.C., 1985, c. I-2, s. 69 (as am. by R.S.C., 1985 (2nd Supp.), c. 10, s. 5; (4th Supp.), c. 28, s. 18; S.C. 1992, c. 49, s. 59).