CLEARLY, SCHIZOPHRENIA IS A SERIOUS MENTAL ILLNESS.  What has not been so clear is what that fact should mean for those who suffer from it and are facing deportation at an immigration hearing.  The rules respecting immigration boards in Canada require that a special “designated representative” be appointed to represent a person who is “unable, in the opinion of the applicable division [of the Board], to appreciate the nature of the proceedings”.  The idea is that such a designated representative can assist the person concerned by retaining a lawyer for him or her, if necessary, and by instructing the lawyer.

The question before the Federal Court of Appeal in Hillary was whether the mere fact that a tribunal knows someone appearing before it suffers from schizophrenia means the tribunal has to appoint a designated representative to assist that person when that person already has a lawyer.  That may sound like a complicated and rather particular question, but the fact is that the issue comes up quite regularly before the Immigration and Refugee Board, because so many of those with serious mental illnesses drift to the margins of society, fail to take out Canadian citizenship, and become substance abusers and petty criminals, or worse.

Wayne Anthony Hillary was just such a person.  He came to Canada from Jamaica when he was 13 years old and, upon arrival, was conferred permanent resident status.   In the nearly 30 years since then he was diagnosed with schizophrenia, developed a crack cocaine addiction, became HIV positive and accumulated a series of convictions.  There were some procedural twists and turns after that which are, for the purposes of our story, irrelevant.  Suffice it to say Mr. Hillary was ordered deported and had an appeal hearing at which he testified, with the assistance of a lawyer.  While the panel hearing the case knew he was schizophrenic, at risk and needed supervision, no request for a designated representative to assist him at the hearing was made by Mr. Hillary or his lawyer.  In order to protect the fairness of the process was the Board obligated to make inquiries as to whether a designated representative should be appointed to assist him?

According to the Federal Court of Appeal the answer to this question is “no”.  The Federal Court of Appeal concluded that there could be circumstances in which a tribunal was under “a duty to form an opinion about a person’s level of comprehension”, but it could only be required to intervene if, given the “entire context”, not to appoint one would be unreasonable.  Removal order appeals, which are sometimes known as deportation appeals, are “adversarial”, the Court stated, and it concluded that it was not the tribunal that was obliged to raise the issue of a designated representative, but Mr. Hillary’s own counsel.  “This Court”, it said, “is in no position to second guess counsel’s strategy”.

As a consequence, Mr. Hillary was out of luck.  As his counsel before the tribunal did not raise the issue of the need for a designated representative, and the tribunal itself was not obliged to do so, Mr. Hillary had a fair hearing, in the view of the Federal Court of Appeal.  His deportation order remained active and in effect, and he was not entitled to another hearing to challenge his removal.  He was subject to removal to Jamaica; separation from those of his family, mental health supports and friends as were unable to join him there; and a ban from returning to Canada.

I myself have represented many people before the Board in just these circumstances, people who are mentally ill and fighting a battle to remain in Canada.  While my clients have had substantial success, including once again just this month, there is no doubting that these cases can be difficult, and that having experience in one’s corner to deal with the multitude of procedural and substantive issues to which they give rise is an asset.  If you or someone you care about is in this situation, it is important that you get some help.

To read the full case, the citation for which is Hillary v. Canada (Minister of Citizenship and Immigration) 2011 FCA 51, click here.