Monday, May 31, 2010

Mulroney-Schreiber affair The investigations: 2007-2009 ethics committee probe to a public inquiry

Mulroney-Schreiber affair
The investigations: 2007-2009
From an ethics committee probe to a public inquiry

CBC News
March 23, 2007: German-Canadian businessman Karlheinz Schreiber files lawsuit against former prime minister Brian Mulroney for failing to provide services he promised in exchange for $300,000 cash paid in 1993-1994. Read story.
Aug. 6, 2007: Ontario's Court of Appeal dismisses request from Schreiber for a judicial review of a previous decision relating to his 2004 extradition order.
Oct. 4, 2007: Imprisoned at Toronto West Detention Centre, Schreiber comes within minutes of being put on a plane to Germany by the RCMP, but his lawyers successfully submit an application for an emergency court injunction.
Nov. 8, 2007: Schreiber files an affidavit alleging he negotiated a $300,000 lobbying deal with Mulroney at the prime minister's Harrington Lake retreat in Quebec on June 23, 1993 — two days before Mulroney stepped down as prime minister. Read story.Former prime minister Brian Mulroney tells a Toronto audience that he welcomes a public inquiry into his dealings with Karlheinz Schreiber. (Adrian Wyld/Canadian Press)
Nov. 9, 2007: Prime Minister Stephen Harper announces an independent review of new allegations by Schreiber over his dealings with Mulroney. Read story.
Nov. 12, 2007: Mulroney calls for the federal government to drop an independent review and proceed immediately to a full-blown public inquiry. Read story.
Nov. 13, 2007: Harper catches opposition and members of his own party off-guard by announcing a public inquiry during Question Period.
Nov. 14, 2007: Harper names University of Waterloo President David Johnston to draft the terms of reference for the public inquiry. Read story.
Nov. 15, 2007: Ontario's Court of Appeal dismisses Schreiber's extradition appeal and instead accepts the justice minister's assurance that he would do nothing to remove Schreiber from Canada until Dec. 1, 2007.
Nov. 22, 2007: Federal opposition parties vote to open a broad probe into allegations involving Mulroney and Schreiber. Read story.
Nov. 27, 2007: House of Commons Speaker Peter Milliken issues a rarely used Speaker's Warrant to put Schreiber in Parliament's custody. This overrides Schreiber's extradition order and compels him to testify before the ethics committee.
Nov. 28, 2007: Schreiber arrives at Ottawa-Carleton Detention Centre. That night, the Justice Department consents to a judicial stay of surrender to give Schreiber time to appeal his case to the Supreme Court.
Nov. 29, 2007: In his first appearance before the ethics committee, Schreiber says Mulroney was paid only $300,000 of a $500,000 business deal because Mulroney didn't hold up his end of the bargain. He also denies claims by Mulroney that the money was for help with a pasta business and business contacts. Read story.
Nov. 30, 2007: A stay in Schreiber's extradition is granted by the courts pending an application for leave to appeal to the Supreme Court. Read story.
Dec. 4, 2007: Just before noon, the committee receives word that Schreiber, who has given his second day of testimony, has been granted bail.
Dec. 13, 2007: Mulroney appears before the Commons ethics committee. He tells the committee his meeting with Schreiber two days before he left office was a farewell courtesy visit and that he promoted business on Schreiber's behalf only after stepping down. Read story.
Dec. 20, 2007: An Ontario court throws out Schreiber's lawsuit against Mulroney, saying it has no jurisdiction over the dispute. Read story.
Jan. 11, 2008: Harper announces he will call a limited public inquiry after the ethics committee finishes. Read story.
Feb. 5, 2008: Former federal justice minister Allan Rock and former Mulroney chief of staff Norman Spector appear before the committee. Read story.
Feb. 7, 2008: Luc Lavoie, former Mulroney communications director, and François Martin, chef and manager of 24 Sussex Drive during Mulroney's time as prime minister, appear before the committee. Read story.
Feb. 12, 2008: Fred Doucet, former Mulroney advisor, tells the committee he knows nothing about Airbus and accuses Schreiber of making a slew of false statements. Former Liberal cabinet minister Marc Lalonde, who worked as a lawyer for Schreiber, also appears and says that neither Schreiber nor any of his businesses hired him to represent them in the Airbus affair or GCI. Read story.Former Mulroney advisor Fred Doucet told the committee that he never asked Schreiber to funnel money from the Airbus deal to Mulroney. (Tom Hanson/Canadian Press)
Feb. 14, 2008: Schreiber's former accountant, Giorgio Pelossi, tells the committee that Schreiber said Mulroney was supposed to get some proceeds from the Airbus sale. But he adds that Schreiber "lied all the time." Read story.
Feb. 26, 2008: Mulroney's public relations firm posts a statement late in the day on its website, declining, on Mulroney's behalf, the ethics committee's request to re-appear. Read story.
March 5, 2008: The federal government agrees to let Schreiber stay in Canada long enough to testify at a public inquiry. Read story.
March 6, 2008: The Supreme Court rejects Schreiber's bid to appeal extradition. Read story.
April 2, 2008: A final report by the ethics committee recommends holding a wide-ranging public inquiry. Read story.
April 7, 2008: David Johnston releases his report recommending that the public inquiry should be limited. Read the report and story.
April 16, 2008: Schreiber is freed on bail again.
May 29, 2008: The ethics committee votes to recall Mulroney to come back by June 12 on the grounds the government is dragging its feet on a promised public inquiry.
June 11, 2008: Mulroney refuses to testify for the second time before the ethics committee.Justice Jeffrey Oliphant was appointed to head the public inquiry. (Phil Hossack/Canadian Press)
June 12, 2008: Justice Jeffrey J. Oliphant appointed to conduct the public inquiry.
Dec. 9, 2008: Oliphant delays start date of the public inquiry to March 30, 2009, from Feb. 9, because of problems with computerized processing of documents.
Dec.11, 2008: The Supreme Court refuses to review Schreiber's bid to reverse 2004 extradition order. Read story.
March 20, 2009: Oliphant rejects Mulroney's attempt to delay the inquiry. Read story.
March 26, 2009: Oliphant rules the inquiry will take a wide look at business relations between Mulroney and Schreiber. Read story.
March 30, 2009: On the opening day of the federal inquiry, questions for both witnesses — former Liberal justice minister Marc Lalonde and former Conservative defence minister Bill McKnight — focus on Bear Head Industries. Read story.
March 31, 2009: Beth Moores, the widow of former Newfoundland premier Frank Moores, tells the inquiry the Swiss bank account called Devon was meant for her. Mulroney's former chief of staff, Derek Burney, also testifies about Bear Head. Read story.
April 10, 2009: The Fifth Estate learns that former Ottawa lobbyist and N.L. premier Frank Moores wrote to Schreiber about Air Canada and political donations. Read story.
April 14, 2009: Schreiber's first day before the inquiry. Read story.
April 16, 2009: Schreiber testifies about when he made the lobbying arrangement with Mulroney. Read story.
April 17, 2009: On his fourth and final day, Schreiber admits parts of affidavit are false. Read story.
April 27, 2009: Doucet says he can't recall writing three letters or receiving fax about Airbus planes. Read story.
April 28, 2009: Doucet tells inquiry about writing memo in 2000 describing Schreiber's relationship with Mulroney. Read story.
April 29, 2009: Former Conservative defence minister Perrin Beatty testifies about shock at learning $4 million in contingency fees paid out on basis of 1988 understanding in principle between government and Thyssen Industries. Read story.Karlheinz Schreiber pauses as he is questioned by lead commission council Richard Wolson at the federal inquiry on April 16, 2009. (Sean Kilpatrick/Canadian Press)
May 5, 2009: Evidence heard that Doucet pressed for Bear Head project. Read story.
May 6, 2009: Forensic accountant says there's a "strong inference" that money paid to Mulroney came from Airbus funds. Read story.
May 12, 2009: The first day of Mulroney's testimony. Read story.
May 13, 2009: Mulroney tells the inquiry his 1996 statement about never having dealings with Schreiber was made only in relation to Airbus accusations. Read story.
May 15, 2009: Mulroney recalls receiving the first cash payment. Read story.
May 19, 2009: Mulroney reveals he paid income tax on only half the money he says he received from Schreiber after declaring it as income in 1999. Read story.
May 20, 2009: Mulroney wraps up his sixth day on the witness stand at the inquiry, saying he felt he was treated fairly and with respect. Read story.
May 20, 2009: Taxpayers learn they could foot the bill for Mulroney's projected $2 million in legal fees as part of a Treasury Board policy to financially assist Crown servants during such inquiries. Read story.
May 21, 2009: A Canada Revenue Agency official states that a voluntary disclosure program, since discontinued, allowed for Mulroney to avoid penalties and pay taxes on only half the $225,000 he said he received from Schreiber. Read story.Read more:

Sunday, May 30, 2010

BP Incidents & Environmental and safety record.

Hazardous substance dumping
In September 1999, one of BP’s US subsidiaries, BP Exploration Alaska (BPXA), agreed to resolve charges related to the illegal dumping of hazardous wastes on the Alaska North Slope, for $22 million. The settlement included the maximum $500,000 criminal fine, $6.5 million in civil penalties, and BP’s establishment of a $15 million environmental management system at all of BP facilities in the US and Gulf of Mexico that are engaged in oil exploration, drilling or production. The charges stemmed from the 1993 to 1995 dumping of hazardous wastes on Endicott Island, Alaska by BP’s contractor Doyon Drilling. The firm illegally discharged waste oil, paint thinner and other toxic and hazardous substances by injecting them down the outer rim, or annuli, of the oil wells. BPXA failed to report the illegal injections when it learned of the conduct, in violation of the Comprehensive Environmental Response, Compensation and Liability Act.[40]
Texas City Refinery explosion
Main article: Texas City Refinery explosion
In March 2005, BP's Texas City, Texas refinery, one of its largest refineries, exploded causing 15 deaths, injuring 180 people and forcing thousands of nearby residents to remain sheltered in their homes.[41] A large column filled with hydrocarbon overflowed to form a vapour cloud, which ignited. The explosion caused all the casualties and substantial damage to the rest of the plant. The incident came as the culmination of a series of less serious accidents at the refinery, and the engineering problems were not addressed by the management. Maintenance and safety at the plant had been cut as a cost-saving measure, the responsibility ultimately resting with executives in London.[42]
The fall-out from the accident continues to cloud BP's corporate image because of the mismanagement at the plant. There have been several investigations of the disaster, the most recent being that from the U.S. Chemical Safety and Hazard Investigation Board[43] which "offered a scathing assessment of the company." OSHA found "organizational and safety deficiencies at all levels of the BP Corporation" and said management failures could be traced from Texas to London.[41]
The company pleaded guilty to a felony violation of the Clean Air Act, was fined $50 million, and sentenced to three years probation.
On October 30, 2009, the US Occupational Safety and Health Administration (OSHA) fined BP an additional $87 million — the largest fine in OSHA history — for failing to correct safety hazards revealed in the 2005 explosion. Inspectors found 270 safety violations that had been previously cited but not fixed and 439 new violations. BP is appealing that fine.[41][44]
Propane price manipulation
Four BP energy traders in Houston were charged with manipulating prices of propane in October 2007. As part of the settlement of the case, BP paid the US government a $303 million fine, the largest commodity market settlement ever in the US. The settlement included a $125 million civil fine to the Commodity Futures Trading Commission, $100 million to the Justice Department, $53.3 million to a restitution fund for purchasers of the propane BP sold, and $25 million to a US Postal Service consumer fraud education fund.[45][46]
Prudhoe Bay
Main article: Prudhoe Bay oil spill
In August, 2006, BP shut down oil operations in Prudhoe Bay, Alaska, due to corrosion in pipelines leading up to the Alaska Pipeline. The wells were leaking insulating agent called Arctic pack, consisting of crude oil and diesel fuel, between the wells and ice.[47] BP had spilled over one million litres of oil in Alaska's North Slope.[48] This corrosion is caused by sediment collecting in the bottom of the pipe, protecting corrosive bacteria from chemicals sent through the pipeline to fight this bacteria. There are estimates that about 5,000 barrels (790 m3) of oil were released from the pipeline. To date 1,513 barrels (240.5 m3) of liquids, about 5,200 cubic yards (4,000 m3) of soiled snow and 328 cubic yards (251 m3) of soiled gravel have been recovered. After approval from the DOT, only the eastern portion of the field was shut down, resulting in a reduction of 200,000 barrels per day (32,000 m3/d) until work began to bring the eastern field to full production on 2 October 2006.[49]
In May 2007, the company announced another partial field shutdown owing to leaks of water at a separation plant. Their action was interpreted as another example of fallout from a decision to cut maintenance of the pipeline and associated facilities. [50]
On 16 October 2007 Alaska Department of Environmental Conservation officials reported a toxic spill of methanol (methyl alcohol) at the Prudhoe Bay oil field managed by BP PLC. Nearly 2,000 gallons of mostly methanol, mixed with some crude oil and water, spilled onto a frozen tundra pond as well as a gravel pad from a pipeline. Methanol, which is poisonous to plants and animals, is used to clear ice from the insides of the Arctic-based pipelines.[51]
Deepwater Horizon oil spill
Main article: Deepwater Horizon oil spill
On April 20, 2010, a semi-submersible exploratory offshore drilling rig in the Gulf of Mexico exploded after a blowout and sank two days later, killing eleven people and causing a massive oil spill threatening the coast of Louisiana, Mississippi, Alabama, Texas, and Florida. The rig is owned and operated by Transocean Ltd[52] on behalf of BP, which is the majority owner of the oil field. The company originally estimated the size of the leak at about 1,000 barrels a day but later accepted government estimates of a leak of at least 5,000 barrels per day (790 m3/d). On April 30, BP stated that it would harness all of its resources to battle the oil spill, spending $7 million a day with its partners to try to contain the disaster.[53] In comparison BP's 1st quarter profits for 2010 were roughly $61M daily [54] BP was running the well without a remote control shut-off switch used in two other major oil-producing nations, Brazil and Norway, as a last resort protection against underwater spills. The use of such devices is not mandated by U.S. regulators.[55] The U.S. Government gave the responsibility of the incident to BP and will hold it accountable for costs incurred in containing the situation.[56] On May 11, 2010, Congress called the executives of BP, Transocean, and Halliburton to a hearing regarding the oil spill. When probed for answers regarding the events leading up to the explosion, each company blamed the other. BP blamed Transocean who owned the rig, who then blamed the operators of the rig, BP. They also blamed Halliburton, who built the well casing.[57] Scientists have been requesting the right to monitor the amount of oil that is actually being released per day, but "'The answer is no to that,' a BP spokesman, Tom Mueller, said on Saturday, May 15. 'We're not going to take any extra efforts now to calculate flow there at this point. It's not relevant to the response effort, and it might even detract from the response effort.'"[58] Steven Wereley, an associate professor of mechanical engineering at Purdue University, analyzed videotape of the leak using particle image velocimetry and estimated oil flow rates at between 56,000 to 84,000 barrels per day (8,900 to 13,400 m3/d), or equivalent to one Exxon Valdez spill every 3.5 to 2.4 days.[59] A second, smaller leak has been estimated to be releasing 25,000 barrels per day (4,000 m3/d) by itself,[60] suggesting that the total size of the leak may well be in excess of 100,000 barrels per day and could possibly be one of the largest oil spills in history and the worst man-made disaster recorded.
Baku-Tbilisi-Ceyhan pipeline
BP has been criticised for its involvement with Baku-Tbilisi-Ceyhan pipeline, due to human rights, environmental and safety concerns.[61]
Colombian pipeline
In July 2006, a group of Colombian farmers won a multi million pound settlement from BP after the British oil and gas company was accused of benefiting from a regime of terror carried out by Colombian government paramilitaries to protect a 450-mile (720 km) pipeline.[62]
Mist mountain project
There have been some calls[who?] for BP to halt its "Mist Mountain" Coalbed Methane Project in the Southern Rocky Mountains of British Columbia. The proposed 500 km² project is directly adjacent to the Waterton-Glacier International Peace Park.[63]
Canadian oil sands
BP is one of numerous firms who are extracting oil from Canadian oil sands, a process that produces four times as much CO2 as conventional drilling.[64] The Cree aboriginal group describe BP as being complicit in 'the biggest environmental crime on the planet'.[65] The Cree aboriginal group also describe the oil sands projects some of the great economic influences of the area.[clarification needed]
Environmental and safety record
BP was named by Mother Jones Magazine as one of the "ten worst corporations" in both 2001 and 2005 based on its environmental and human rights records.[66][67] In 1991 BP was cited as the most polluting company in the US based on EPA toxic release data. BP has been charged with burning polluted gases at its Ohio refinery (for which it was fined $1.7 million), and in July 2000 BP paid a $10 million fine to the EPA for its management of its US refineries.[68] According to PIRG research, between January 1997 and March 1998, BP was responsible for 104 oil spills.[69] BP patented the Dracone Barge to aid in oil spill clean-ups across the world. [70]

A Gulf gasoline station in Louisville, KY using the previous BP prototype. BP purchased all Gulf stations in the southeastern United States in the 1980's after Chevron, Inc. was forced to divest the stations by the United States Justice Department.
BP Amoco was a member of the Global Climate Coalition an industry organization established to promote global warming scepticism but withdrew in 1997, saying "the time to consider the policy dimensions of climate change is not when the link between greenhouse gases and climate change is conclusively proven, but when the possibility cannot be discounted and is taken seriously by the society of which we are part. We in BP have reached that point.".[71]
In March 2002 Lord Browne of Madingley declared in a speech that global warming was real and that urgent action was needed, saying that "Companies composed of highly skilled and trained people can't live in denial of mounting evidence gathered by hundreds of the most reputable scientists in the world."[72]
BP Amoco changed its name to BP in 2000, and introduced a new corporate slogan: “Beyond Petroleum.” It replaced its “Green Shield” logo with the helios symbol, a green and yellow sunflower pattern similar to the emblem of the Green Party of Canada. These changes were intended to highlight the company’s interest in alternative and environmentally friendly fuels. When, in July 2006, BP admitted, only after journalists became aware of the spill, that it was facing criminal charges for allowing 270,000 gallons of crude oil to spread into the Alaskan tundra, critics pointed to the relative lack of press coverage about the spill as evidence that BP had successfully greenwashed its image while maintaining environmentally unsound practices.[73][74]
In 2008, BP was awarded a satirical prize, the "Emerald Paintbrush" award, by Greenpeace UK. The "Emerald Paintbrush" award was given to BP in order to highlight its alleged greenwashing campaign. Critics point out that while BP advertises its relatively minimal investment in alternative energy sources, the majority of its investments continue to go into fossil fuels.[75] BP was also one nominee for the 2009 Greenwash Awards.[76]
BP is a sponsor of the Scripps Institution CO2 program to measure carbon dioxide levels in the atmosphere.[77]
As of 11 February 2007 BP announced that they would spend $8 billion over ten years to research alternative methods of fuel, including natural gas, hydrogen, solar, and wind. A $500 million grant to the University of California, Berkeley, Lawrence Berkeley National Laboratory, and the University of Illinois at Urbana-Champaign, to create an Energy Biosciences Institute[78] has recently come under attack, over concerns about the global impacts of the research and privatisation of public universities.[79]

Solar panel made by BP Solar
BP's investment in green technologies peaked at 4% of its exploratory budget, but they have since closed their alternative energy headquarters in London. As such they invest more than other oil companies, but it has been called greenwashing due to the small proportion of the overall budget.[80]
In 2004, BP began marketing low-sulphur diesel fuel for industrial use.
BP Solar is a leading producer of solar panels since its purchase of Lucas Energy Systems in 1980 and Solarex (as part of its acquisition of Amoco) in 2000. BP Solar had a 20% world market share in photovoltaic panels in 2004 when it had a capacity to produce 90 MW/year of panels. It has over 30 years experience operating in over 160 countries with manufacturing facilities in the U.S., Spain, India and Australia and has more than 2000 employees worldwide. Through a series of acquisitions in the solar power industry BP Solar became the third largest producer of solar panels in the world. It was recently announced that BP has obtained a contract for a pilot project to provide on-site solar power to Wal-mart stores. In the 2006 annual report Lord Browne noted that BP now has a total wind generation capacity of nearly 15,000 megawatts. 15,000 megawatts would be sufficient to provide power to approximately 15,000,000 typical American households simultaneously. This makes BP one of the largest generators of wind power in the world
Contributions to political campaigns
According to the Center for Responsive Politics, BP is the United States' hundredth largest donor to political campaigns, having contributed more than US$5 million since 1990, 72% and 28% of which went to Republican and Democratic recipients, respectively. BP has lobbied to gain exemptions from U.S. corporate law reforms.[81] Additionally, BP paid the Podesta Group, a Washington, D.C.-based lobbying firm, $160,000 in the first half of 2007 to manage its congressional and government relations.[82]
In February 2002 BP's chief executive, Lord Browne of Madingley, renounced the practice of corporate campaign contributions, noting: "That's why we've decided, as a global policy, that from now on we will make no political contributions from corporate funds anywhere in the world."[83]
Despite this, in 2009 BP used nearly US$16 million to lobby US Congress, breaking the company's previous record (from 2008) of US$10.4 million.[

Saturday, May 29, 2010

The mysterious, dark-coated relationship

The mysterious, dark-coated relationship between chocolate and mood
Scientists see the changes, but with more than 600 chemicals in chocolate, it's not sure what causes what.
Many people will indulge in chocolate no matter its sugar content, fat content or purported health effects.An oft-cited 1991 study, published in the journal Appetite, revealed that chocolate is the top food craved by women; roughly half the women in the study experienced regular chocolate cravings.The preponderance of chocolate cravings has inspired a separate body of research on the connection between chocolate and mood. But the evidence so far is confusing at best, says Dr. Beatrice Golomb, professor of medicine and family medicine at UC San Diego.In April, Golomb and colleagues published study results showing that people who score higher on a depression test eat more chocolate than people who are not depressed: eight 1-ounce servings per week as opposed to five. The findings were published in the Archives of Internal Medicine.
. Other researchers have found similar connections. In a 2002 Swedish study, women who had more depressive symptoms ate more chocolate than less depressed women. A 1991 study found that among European nations, those with the highest per-person chocolate consumption (Switzerland topped the list) tended to also have the highest suicide rates.Such studies demonstrate a connection of some sort between chocolate and mental health — but they don't prove a cause-and-effect relationship, says Golomb. To date, researchers don't know whether depression drives chocolate cravings or whether chocolate consumption promotes depression.Scientists have hypothesized that some of the many chemicals in chocolate (there are roughly 600) could influence levels of such feel-good brain chemicals as dopamine and serotonin.But existing data suggest that chocolate's complex effects on these chemicals could be as likely to improve mood as worsen it, says Dr. Gordon Parker, professor of psychiatry and executive director of the University of New South Wales Black Dog Institute, an Australian research center focused on mood disorders.Nonetheless, many people do report feeling good upon eating — or even seeing — chocolate. Three years ago, British researchers using functional magnetic resonance imaging showed that when people who crave chocolate ate chocolate, the parts of their brains governing emotion and reward lit up. The study was published in the European Journal of Neuroscience.But the pleasurable sensation derived from eating a piece of chocolate is fleeting, says Parker, who has authored reviews on chocolate and mood.Some scientists speculate that chocolate, which some people crave as if it were a drug, could exhibit drug-like properties, improving mood in the short term but worsening mood with long term, high level consumption. (Think alcohol, or even cocaine.)As researchers continue to sort out the precise relationship between chocolate and the pleasure it sometimes seems to produce, only one thing remains clear, says Parker: "It is not, as some would claim, an anti-depressant."

Thursday, May 27, 2010

appeals over jury vetting

Cop killer appeals over jury vetting
TORONTO -- The jury deciding the fate of Troy Davey deliberated for fewer than 12 hours before finding him guilty of first-degree murder in the 2004 killing of an Ontario police officer.
Davey, then 18, lay in wait for Constable Chris Garrett after placing a fake 911 call and slashed his throat.

More than three years after the jury in Cobourg returned with its verdict, the conviction could be overturned as a result of "illegal" probes of potential jurors by police.
The case, set to be heard by the Ontario Court of Appeal next month, challenges the Crown's system of enlisting police agencies to vet juries, a practice banned by the province of Ontario after a series of National Post reports.

Jury vetting is at the heart of documents filed in the appeal court this week by lawyers representing Davey, who is serving a life sentence.
"The Crown illegally obtained information about prospective jurors, did not disclose that information to the defence and then used that information in selecting the jury," write lawyers Catriona Verner and Christopher Hicks.

The practice violated the Juries Act, seven sections of provincial privacy legislation and infringed the right to a fair trial, they state.
Three weeks before jury selection was scheduled to begin, the list of the 400 people in the jury pool was handed over by the Crown to the Cobourg and Port Hope police and a local Ontario Provincial Police detachment. The Crown asked police for their "opinions" on the "suitability" of the potential jurors, according to documents filed in the Davey appeal. The "suitability" was whether or not someone was considered to be "partial" to the Crown.
The jury lists were returned with notations such as "good" or "ok" or "no" next to the names of prospective jurors and the information was not disclosed to the defence.
At least five potential jurors, with "good" next to their names, had ties to the police.
The conduct was described as "shocking" by Sanjeev Anand, a criminal law professor at the

University of Alberta and former prosecutor.
"If the allegations are true, they were trying to get a stacked jury. The fact that police were directed in this way is so contrary to the role of the Crown prosecutor. It strikes at the core of our justice system, the right to an impartial jury," said Mr. Anand.
Given that it was a high-profile case in the community there was even more reason "to ensure that everything was above board," he added.
The Davey case marks the first time that the Crown has admitted that it vetted potential jurors to help in obtaining a pro prosecution jury.
In other cases the Crown insisted the probes were to ensure citizens were eligible as jurors.
The province has since put a halt to the practice and amended the Juries Act to strengthen privacy protections, following an investigation by the Ontario Privacy Commissioner.
In a landmark case about jury selection in 1991, the Supreme Court of Canada outlined the core principles. "The modern jury was not meant to be a tool in the hands of either the Crown or the accused," said the court. "It was envisioned as a representative cross-section of society, honestly and fairly chosen."

Police in Cobourg were routinely asked to use their "personal knowledge" to help the Crown. They have denied using confidential police databases to find information.
The Davey appeal is scheduled to be heard late next month. The Crown is expected to file its written arguments within the next week. About a dozen cases before the Ontario Court of Appeal involve improper jury checks by police.Read more:

Sunday, May 23, 2010


Federal Court
Cour fédérale
Date: 20100518
Docket: IMM-2486-09
Citation: 2010 FC 547
Ottawa, Ontario, May 18, 2010
PRESENT: The Honourable Madam Justice Johanne Gauthier

[1] Mr. Barlagne is asking the Court to set aside the decision by the visa officer refusing his
application for permanent residence on the basis that his daughter, Rachel, who has hypotonic
cerebral palsy with cerebellar dysfunction, is inadmissible to Canada on health grounds because her
condition might reasonably be expected to cause excessive demand on social services. The fact that
young Rachel Barlagne is inadmissible means that the applicant and his family (his wife Sophie and
their two daughters, Rachel and Lara) are inadmissible.
[2] Cases like this are always difficult to deal with, particularly when they involve a young girl
who is intelligent and endearing, if not exceptional, according to those who know her. However,
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unlike the application for exemption under subsection 25(1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (the Act), judicial review is subject to specific rules that apply to all
cases, even those where strong sympathy for the applicant and his family would favour a different
outcome. After thoroughly reviewing the record, the Court cannot allow Mr. Barlagne’s application
for the following reasons.
[3] The applicant has a Master’s in computer science (software engineering). Prior to moving to
Montréal and beginning in January 2003, he was the manager and the person in charge of software
development for a company called Esprit Technologie s.a.r.l. He was also the majority shareholder
(45% of outstanding shares / controlling interest).
[4] After discussions with an investment officer at the Canadian Embassy and, inter alia, an
exploratory trip to Quebec, the company Esprit Technologie Inc. (ETI) was created in Quebec, and
Mr. Barlagne was appointed its Executive Vice-president. The aim of the company was to provide
implementation services and to design software adapted to a clientele of libraries and publishing
houses in Canada and throughout the entire Francophonie.
[5] With the support of the Canadian Embassy and Investissement Québec, the applicant
subsequently obtained a work permit1 (July 23, 2005, to July 31, 2008) and visitors visas for his
family members. They then moved to Quebec.
1 This permit was renewed and is now valid until July 31, 2011.
Page: 3
[6] Mrs. Barlagne, who has only a visitor’s visa, has not worked since her arrival.2 Lara was
immediately enrolled in school, and her young sister Rachel, who first went to an integrated day
care centre, has been enrolled in École Victor-Doré, a specialized public school for disabled
children, since September 2007.
[7] On June 14, 2007, Mr. Barlagne submitted an application for permanent residence, and he
has not left Quebec since.
[8] On February 20, 2008, mandatory medical forms were sent to the applicant, and on
March 20, 2008, Rachel’s initial medical report was completed and signed by Dr. Charles Chocron.
[9] On May 20 and May 23, 2008, requests for additional information were sent. On June 30,
2008, in response to these requests, École Victor-Doré sent a letter setting out the services that
Rachel Barlagne’s physical condition requires. That letter stated that, for the 2008-2009 school year,
Rachel was going to attend a special education class of nine students and that she would be
receiving the services of a physiotherapist, an occupational therapist, a supply teacher in
communication as well as in technical assistance to facilitate her communication.
[10] After a reminder letter dated August 11, 2008, Mr. Barlagne completed his file. On August
13, 2008, Immigration Canada’s medical officer, Dr. Hélène Quévillon, made a diagnosis of general
2 In France, before leaving for Canada, Ms. Barlagne worked as a communications officer at the Saint-Claude city hall,
Page: 4
developmental delay, a [TRANSLATION] “medical condition that might reasonably be expected to
cause excessive demand on social services.”
[11] In a letter dated September 2, 2008 (the fairness or “second chance letter”), the visa officer
advised the applicant of the diagnosis in the following words and also informed him that his
application for permanent residence could be refused under subsection 38(1) of the Act:
Narrative: This applicant, who will soon turn six, presents a general
developmental delay associated with hypotonic cerebral palsy with
cerebellar dysfunction. She presents an ataxia but is able to move on
her hands and knees. Her balance is precarious. She requires
assistance to stand. She presents a significant speech delay. The latest
psychological report does not show any intellectual impairment. She
will be in a class of nine students (ratio 1/8-10) in a specialized
school for physically disabled children. The class has an attendant for
approximately 8 hours a week. She is followed in physiotherapy and
occupational therapy. She also has the support of a supply teacher in
communication. This applicant requires specialized education
services. These services are expensive. Based on a review of the
results of the medical assessments and all the reports that I received
concerning this applicant’s health condition, I find that she presents a
medical condition that might reasonably cause an excessive demand
on social services. In particular, this condition will likely cause a
need for services that will exceed the average Canadian per capita
costs over a five-year period. Consequently, this applicant is
inadmissible under section 38(1)(c) of the Immigration and Refugee
Protection Act. Social services required and associated costs:
Primary school: In accordance with the standards and definitions of
the Ministère de l’Éducation, des Loisirs et des Sports, school boards
are required, under the Basic school regulation, to provide special
services to disabled children. The additional allowance for these
services is approximately $7,045 for each year of primary school.
Page: 5
[12] The officer directed the applicant to provide additional information or documents by
November 1, 2008, as follows:
Before I make my final decision, you may submit additional
information or documents relating to the above illness, medical
condition, diagnosis or medical opinion. You may also submit
relevant information addressing the issue of excessive demand if it
applies to your case.
[13] On October 17, 2008, counsel for the applicant filed an access to information request in
order to obtain all the files in Canada and at the Consulate General of Canada in Detroit as well as
the medical records related to the applicant’s application for permanent residence. A little over 100
documents were received on November 28, 2008. In the meantime, on November 3, 2008, the visa
officer received a request from counsel for more time to submit documents. An extension of 45 days
was granted, i.e., until December 19, 2008. On December 17, 2008, counsel sent a letter and 51
attachments3 to the visa officer, and on January 12, 2009, another letter containing corrections to the
letter of December 17, 2008 (collectively “the Comments”).
[14] As indicated in the Table of Attachments (Annex A), the applicant submitted information on
various topics such as4 the representations made to Mr. Barlagne by the investment officer at the
Canadian Embassy, resumés including Mrs. Sophie Barlagne’s, her volunteer activities, Lara’s
academic transcripts, numerous documents about Rachel’s condition, her development at school and
3 See the Table of Attachments in Annex A.
4 This, of course, is not intended to be an exhaustive description of the documentation.
Page: 6
in therapy (diagnosis and prognosis), the care she received in the past (including music therapy and
riding therapy), jurisprudence and agreements between France and Quebec.5
[15] In addition, Mr. Barlagne submitted a detailed plan for the 2009-2010 year in his
Comments, as required by Operational Bulletin 063 (the Bulletin). In that plan, the applicant
indicated that Rachel would continue to attend École Victor-Doré, a public institution that, as I said,
offers special education and rehabilitation services. However, the applicant stated that, although he
intended to continue to send his daughter to that school, the family would use specialists in the
private sector to provide the rehabilitation services that Rachel requires instead of the services
offered by the rehabilitation centre affiliated with École Victor-Doré, i.e., speech therapy,
physiotherapy and occupational therapy (support services). It also appears that young Rachel
receives assistance four times a week from Marie-Hélène Gilbert, a specialized teacher, to help her
acquire more independence in various life activities.
[16] It should be noted, in particular, that three types of financial documents were provided: a
letter from ETI’s accountant6 confirming the incorporation, activities, head office, number of
employees (2), the company’s share ownership (tab 1), a simplified statement of financial position
for the French company, Esprit Technologie s.a.r.l., for the 2005 fiscal year (tab 45) and certified
copies of bank statements in euros from the Caisse d’épargne Provence-Alpes-Corse/Guadeloupe
5 See letter confirming that the France-Québec agreement is not relevant where French nationals become permanent
residents under the Act, at page 400 of the Certified Record of the Consulate General of Canada. It is clear that the
officer considered this argument.
6 He also indicated that ETI is a company in the same group as CD Consulting s.a.r.l. However, there was no evidence
before the officer about the latter company or its connection, if any, with Esprit Technologie s.a.r.l. Moreover, this letter
contains no information about the finances of the Quebec company.
Page: 7
for Mrs. Barlagne and her two children dated 2008 (tab 37). At tabs 32 and 33, the applicant
included the budgetary rules for the 2008-2009 school year of the Ministère de l’éducation du loisir
et du sport (MELS), as well as the allowances for teaching resources prepared and issued by Mr.
Serge Dupéré. Last, tab 38 contains the Bulletin dated September 24, 2008, which deals with the
assessment of excessive demand on social services by Citizenship and Immigration Canada.
[17] On January 15, 2008, the visa officer reviewed the documents sent by counsel for the
applicant, listed them in his own words and commented on them briefly in his CAIPS notes. On
January 21, 2008, certain documents were transferred to the medical officer who sent her comments
on February 11 and advised the visa officer that, in her view, the inadmissibility assessment should
not be changed. Dr. Quévillon noted that Rachel Barlagne still required special education services,
for which she assessed an additional allowance of $5,259 $.
[18] However, she requested two other documents that apparently were not sent to her. On
March 4, based on a review of the two additional documents, the medical officer advised the visa
officer that they did not change her opinion.
[19] On March 11, 2009, the visa officer sent a short letter (1 page) refusing the applicant’s visa
application under subsections 11(1), 38(1) and 42(a) of the Act. On May 15, 2009, Mr. Barlagne
filed an application for leave and judicial review in Federal Court.
Page: 8
[20] The parties filed a number of affidavits in this matter. Although the applicant and the
respondent submitted contradictory evidence regarding, on the one hand, the failure of the Canadian
Embassy and Investissement Québec to inform Mr. Barlagne that Rachel’s health condition could
preclude admissibility and, on the other hand, Mr. Barlagne’s failure to declare his daughter’s health
condition in his applications for a work permit, it is not helpful to discuss this here. The
representations or possible omission by the official at the Canadian Embassy are not relevant to
assessing the legality of the impugned decision. As we will see, the visa officer had no discretion to
take such a factor into account, a factor that could be relevant on an application for exemption based
on humanitarian and compassionate considerations under section 25 of the Act.
[21] As for the “unclean hands” argument based on the failure to declare Rachel’s health
condition in the applicant’s application for a work visa and in his application to change his
conditions of stay (Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R.
339 at paras. 38 to 41; Thanabalasingham v. Canada (Minister of Citizenship and Immigration)),
2006 FCA 14, 263 D.L.R. (4th) 51 at paras. 9 and 17), the Court does not intend to exercise its
discretion to refuse to consider the merits of the case. In fact, the Court of Appeal in
Thanabalasingham set out guidelines regarding the exercise of this power, and the Court must
assess certain factors (see, in particular, paras. 9 and 10) to strike a balance between the need to
prevent the abuse of the judicial process and the protection of the applicant’s rights. In this case,
I am satisfied that the Court must exercise its discretion to hear the application on its merits even if
the Court assumes, without deciding, that there was a failure to declare.
Page: 9
[22] At the outset, it is appropriate to deal with a preliminary issue raised by the respondent in his
supplementary memorandum, i.e., that the applicant’s record contains fresh evidence, such as tab 52
and the two statements dated October and November 2009 attached as Exhibits E and F to the
applicant’s supplementary affidavit.7
[23] It is settled law that, on a judicial review, the Court must assess the validity of the decision
on the basis of the evidence that was before the initial decision-maker. In this case, since the fresh
evidence was not relevant to procedural fairness arguments, those documents and the related
paragraphs in Mr. Barlagne’s affidavit will not be considered: Ali v. Canada (Minister of
Citizenship and Immigration), 2008 FC 106, 2008 F.C.J. No. 122 (QL) at para. 26; Lemiecha
(Litigation Guardian of) v. Canada (Minister of Employment and Immigration) (1993), 72 F.T.R.
49, 24 Imm. L.R. (2d) 95 at paras. 3, 4; Abbott Laboratories Ltd. v. Canada (Attorney General),
2008 FCA 354, [2009] 3 F.C.R. 547 at paras. 37, 38.
[24] Although the applicant raised a large number of issues in his initial memorandum, which
repeated his Comments in detail, and in his supplementary memorandum, they can be consolidated
as follows:
1. Did the visa officer fail to observe a principle of
natural justice, procedural and administrative fairness,
that he was required to observe?
7 This is information relating to the bank account or Mr. Barlagne’s financial situation that was not before the officer.
Page: 10
2. Did the visa officer and the medical officer disregard
arguments and evidence submitted in response to the
fairness letter and was their decision unreasonable?
[25] The applicant also submits that the visa officer did not consider his argument that subsection
38(1) of the Act and its application in this case is unconstitutional because it is contrary to section
15 of the Canadian Charter of Rights and Freedoms, Part I of The Constitution Act, 1982, being
Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
Relevant statutory provisions
[26] The relevant statutory provisions read as follows:
• Immigration and Refugee Protection Act, S.C. 2001, c. 27
11. (1) A foreign national must,
before entering Canada, apply
to an officer for a visa or for
any other document required by
the regulations. The visa or
document may be issued if,
following an examination, the
officer is satisfied that the
foreign national is not
inadmissible and meets the
requirements of this Act.
(2) The officer may not
issue a visa or other
document to a foreign
national whose sponsor
does not meet the
sponsorship requirements of
11. (1) L’étranger doit,
préalablement à son entrée au
Canada, demander à l’agent les
visa et autres documents requis
par règlement. L’agent peut les
délivrer sur preuve, à la suite
d’un contrôle, que l’étranger
n’est pas interdit de territoire et
se conforme à la présente loi.
(2) Ils ne peuvent être
délivrés à l’étranger dont le
répondant ne se conforme
pas aux exigences
applicables au parrainage.
Page: 11
this Act.
38. (1) A foreign national is
inadmissible on health grounds
if their health condition
(a) is likely to be a danger to
public health;
(b) is likely to be a danger to
public safety; or
(c) might reasonably be
expected to cause excessive
demand on health or social
(2) Paragraph (1)(c) does not
apply in the case of a foreign
national who
(a) has been determined to be a
member of the family class and
to be the spouse, common-law
partner or child of a sponsor
within the meaning of the
(b) has applied for a permanent
resident visa as a Convention
refugee or a person in similar
(c) is a protected person; or
(d) is, where prescribed by
the regulations, the spouse,
common-law partner, child
or other family member of a
foreign national referred to
in any of paragraphs (a) to
38. (1) Emporte, sauf pour le
résident permanent, interdiction
de territoire pour motifs
sanitaires l’état de santé de
l’étranger constituant
vraisemblablement un danger
pour la santé ou la sécurité
publiques ou risquant
d’entraîner un fardeau excessif
pour les services sociaux ou de
(2) L’état de santé qui risquerait
d’entraîner un fardeau excessif
pour les services sociaux ou de
santé n’emporte toutefois pas
interdiction de territoire pour
a) dont il a été statué qu’il fait
partie de la catégorie
« regroupement familial » en
tant qu’époux, conjoint de fait
ou enfant d’un répondant dont il
a été statué qu’il a la qualité
b) qui a demandé un visa de
résident permanent comme
réfugié ou personne en situation
c) qui est une personne
d) qui est l’époux, le
conjoint de fait, l’enfant ou
un autre membre de la
famille — visé par
règlement — de l’étranger
visé aux alinéas a) à c).
Page: 12
42. A foreign national, other
than a protected person, is
inadmissible on grounds of
an inadmissible family
member if
(a) their accompanying
family member or, in
prescribed circumstances,
their non-accompanying
family member is
inadmissible; or
(b) they are an
accompanying family
member of an inadmissible
42. Emportent, sauf pour le
résident permanent ou une
personne protégée, interdiction
de territoire pour inadmissibilité
familiale les faits suivants:
a) l’interdiction de territoire
frappant tout membre de sa
famille qui l’accompagne ou
qui, dans les cas réglementaires,
ne l’accompagne pas;
b) accompagner, pour un
membre de sa famille, un
interdit de territoire.
• Immigration and Refugee Protection Regulations, SOR/2002-227
1. (1) The definitions in this
subsection apply in the Act
and in these Regulations. . . .
“excessive demand” means
(a) a demand on health
services or social services
for which the anticipated
costs would likely exceed
average Canadian per capita
health services and social
services costs over a period
of five consecutive years
immediately following the
most recent medical
examination required by
these Regulations, unless
there is evidence that
significant costs are likely to
1. (1) Les définitions qui
suivent s’appliquent à la Loi et
au présent règlement. […]
« fardeau excessif » Se dit:
a) de toute charge pour les
services sociaux ou les
services de santé dont le
coût prévisible dépasse la
moyenne, par habitant au
Canada, des dépenses pour
les services de santé et pour
les services sociaux sur une
période de cinq années
consécutives suivant la plus
récente visite médicale
exigée par le présent
règlement ou, s’il y a lieu de
Page: 13
be incurred beyond that
period, in which case the
period is no more than 10
consecutive years; or
(b) a demand on health
services or social services
that would add to existing
waiting lists and would
increase the rate of mortality
and morbidity in Canada as
a result of an inability to
provide timely services to
Canadian citizens or
permanent residents. . . .
“social services” means any
social services, such as home
care, specialized residence and
residential services, special
education services, social and
vocational rehabilitation
services, personal support
services and the provision of
devices related to those
(a) that are intended to assist
a person in functioning
physically, emotionally,
socially, psychologically or
vocationally; and
(b) for which the majority of
the funding, including
funding that provides direct
or indirect financial support
to an assisted person, is
contributed by governments,
croire que des dépenses
importantes devront
probablement être faites
après cette période, sur une
période d’au plus dix années
b) de toute charge pour les
services sociaux ou les
services de santé qui
viendrait allonger les listes
d’attente actuelles et qui
augmenterait le taux de
mortalité et de morbidité au
Canada vu l’impossibilité
d’offrir en temps voulu ces
services aux citoyens
canadiens ou aux résidents
« services sociaux » Les
services sociaux — tels que les
services à domicile, les
services d’hébergement et
services en résidence
spécialisés, les services
d’éducation spécialisés, les
services de réadaptation
sociale et professionnelle, les
services de soutien personnel,
ainsi que la fourniture des
appareils liés à ces services:
a) qui, d’une part, sont destinés
à aider la personne sur les
plans physique, émotif, social,
psychologique ou
b) dont, d’autre part, la
majeure partie sont financés
par l’État directement ou
par l’intermédiaire
d’organismes qu’il finance,
notamment au moyen d’un
Page: 14
either directly or through
publicly-funded agencies.
soutien financier direct ou
indirect fourni aux
34. Before concluding
whether a foreign national's
health condition might
reasonably be expected to
cause excessive demand, an
officer who is assessing the
foreign national's health
condition shall consider
(a) any reports made by a
health practitioner or
medical laboratory with
respect to the foreign
national; and
(b) any condition identified
by the medical examination.
34. Pour décider si l’état de
santé de l’étranger risque
d’entraîner un fardeau
excessif, l’agent tient compte
de ce qui suit:
a) tout rapport établi par un
spécialiste de la santé ou par
un laboratoire médical
concernant l’étranger;
b) toute maladie détectée
lors de la visite médicale.
Education Act, R.S.Q. c. I-13.3
1. Every person is entitled to
the preschool education
services and elementary and
secondary school instructional
services provided for by this
Act and by the basic school
regulation made by the
Government under section 447,
from the first day of the school
calendar in the school year in
which he attains the age of
admission to the last day of the
school calendar in the school
year in which he attains 18
years of age, or 21 years of age
1. Toute personne a droit au
service de l'éducation
préscolaire et aux services
d'enseignement primaire et
secondaire prévus par la
présente loi et le régime
pédagogique établi par le
gouvernement en vertu de
l'article 447, à compter du
premier jour du calendrier
scolaire de l'année scolaire où
elle a atteint l'âge
d'admissibilité jusqu'au dernier
jour du calendrier scolaire de
l'année scolaire où elle atteint
Page: 15
in the case of a handicapped
person within the meaning of
the Act to secure handicapped
persons in the exercise of their
rights with a view to achieving
social, school and workplace
integration (chapter E-20.1).
Every person is also entitled to
other educational services,
student services and special
educational services provided
for by this Act and the basic
school regulation referred to in
the first paragraph and to the
educational services prescribed
by the basic vocational training
regulation established by the
Government under section 448,
within the scope of the
programs offered by the school
The age of admission to
preschool education is 5 years
on or before the date prescribed
by the basic school regulation;
the age of admission to
elementary school education is
6 years on or before the same
l'âge de 18 ans, ou 21 ans dans
le cas d'une personne
handicapée au sens de la Loi
assurant l'exercice des droits
des personnes handicapées en
vue de leur intégration
scolaire, professionnelle et
sociale (chapitre E-20.1).
Elle a aussi droit, dans le
cadre des programmes offerts
par la commission scolaire,
aux autres services éducatifs,
complémentaires et
particuliers, prévus par la
présente loi et le régime
pédagogique visé au premier
alinéa ainsi qu'aux services
éducatifs prévus par le régime
pédagogique applicable à la
formation professionnelle
établi par le gouvernement en
vertu de l'article 448.
L'âge d'admissibilité à
l'éducation préscolaire est fixé à
5 ans à la date déterminée dans
le régime pédagogique; l'âge
d'admissibilité à l'enseignement
primaire est fixé à 6 ans à la
même date.
2. Every person no longer
subject to compulsory school
attendance is entitled to the
educational services prescribed
by the basic regulations
established by the Government
under section 448, within the
scope of the programs offered
by the school board pursuant to
2. Toute personne qui n'est plus
assujettie à l'obligation de
fréquentation scolaire a droit
aux services éducatifs prévus
par les régimes pédagogiques
établis par le gouvernement en
vertu de l'article 448, dans le
cadre des programmes offerts
par la commission scolaire en
Page: 16
this Act. application de la présente loi.
3. The educational services
provided for by this Act and
prescribed by the basic school
regulation established by the
Government under section 447
shall be provided free to every
resident of Quebec entitled
thereto under section 1.
Literacy services and the other
learning services prescribed by
the basic school regulation for
adult education shall be
provided free to residents of
Quebec contemplated in section
2, subject to the conditions
prescribed by the said
3. Tout résident du Quebec visé
à l'article 1 a droit à la gratuité
des services éducatifs prévus
par la présente loi et par le
régime pédagogique établi par
le gouvernement en vertu de
l'article 447.
Tout résident du Quebec visé à
l'article 2 a droit à la gratuité
des services d'alphabétisation et
à la gratuité des autres services
de formation prévus par le
régime pédagogique applicable
aux services éducatifs pour les
adultes, aux conditions
déterminées dans ce régime.
Basic school regulation for preschool, elementary and secondary education, 2000
G.O.Q. 2, 2593
5. Student services provided
under section 4 must include
the following:
(1) services designed to
promote student participation in
school life;
(2) services designed to
educate students about their
rights and responsibilities;
(3) sports, cultural and social
(4) support services for the
use of the documentary
5. Doivent faire partie des
services complémentaires
visés à l'article 4 des services:
1° de promotion de la
participation de l'élève à la
vie éducative;
2° d'éducation aux droits
et aux responsabilités;
3° d'animation, sur les
plans sportif, culturel et
4° de soutien à l'utilisation
des ressources documentaires
Page: 17
resources of the school library;
(5) academic and career
counselling and information;
(6) psychological services;
(7) psychoeducational
(8) special education
(9) remedial education
(10) speech therapy services;
(11) health and social
(12) services in spiritual care
and guidance and community
de la bibliothèque scolaire;
5° d'information et
d'orientation scolaires et
6° de psychologie;
7° de psychoéducation;
8° d'éducation spécialisée;
9° d'orthopédagogie;
10° d'orthophonie;
11° de santé et de services
12° d'animation spirituelle et
d'engagement communautaire
[27] The parties did not make any written representations as to the appropriate standard of
review, and at the hearing they confirmed that there was no dispute on this point.
[28] In accordance with the principles developed by the Supreme Court of Canada in Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 (Dunsmuir), the Court is satisfied that
questions of law and breach of procedural fairness are reviewable against the standard of
correctness: Hilewitz v. Canada (Minister of Citizenship and Immigration), 2005 SCC 57, [2005] 2
S.C.R. 706 at para. 71 (Hilewitz); Sketchley v. Canada (Attorney General), 2005 FCA 404, [2006] 3
F.C.R. 392 at paras. 52-55.
Page: 18
[29] The application of statutory provisions to the facts of a case is a question of mixed fact and
law, and the appropriate standard is reasonableness: Rashid v. Canada (Minister of Citizenship and
Immigration), 2010 FC 157, [2010] F.C.J. No. 183 (QL) at paras. 12-15; Sapru v. Canada (Minister
of Citizenship and Immigration), 2010 FC 240, [2010] F.C.J. No. 270 (QL) at paras. 13-15.
[30] Before examining the issues, it is appropriate to clearly identify why it was thought that
Rachel would cause an excessive demand, since this will lead to a better understanding of how the
errors raised by the applicant are relevant.
[31] Under subsection 38(1) of the Act, the visa officer must declare a person inadmissible if that
person’s health condition might reasonably be expected (reasonable probability)8 to cause excessive
demand on social services.9 This term is defined in the Immigration and Refugee Protection
Regulations, SOR/2002-227. It is clear that excessive means that the anticipated costs of health and
social services would likely exceed average Canadian per capita costs over a period of five years.
Social services include special education services, for which the majority of the funding is provided
directly or indirectly by the governments (through publicly-funded agencies).
[32] In Quebec, unlike the situation in other provinces such as Ontario, special education services
are provided at no cost, regardless of the parents’ ability or willingness to pay, until the child
reaches the age of 21.
8 Hilewitz, paras. 58 and 60.
9 The Court is only dealing here with the parts of the legislation that are the most relevant in this case.
Page: 19
[33] That being said, in Hilewitz10, the Supreme Court of Canada stated that the medical officer
or the visa officer must carry out an individualized assessment of the impairment and the associated
[34] It should be pointed out that in Hilewitz, the two families involved were expecting to move
to Ontario and that the parents had clearly said they intended to send their child to a private school,
which would substantially reduce the costs of social services required from the state. Accordingly,
there was only a remote possibility that this family would use the public system if it experienced
short- or mid-term financial difficulties.
[35] In this case, as I said, Mr. Barlagne filed a plan that specifically stated that young Rachel
would be sent to École Victor-Doré—a public institution— and that he would pay for all the
rehabilitation services that had previously been provided at no cost by the rehabilitation centre
affiliated with the school. The applicant’s ability to pay was therefore only relevant with respect to
the cost of support services.
[36] The applicant himself had provided with his Comments documentation indicating the
allowances that the MELS pays to the school boards and schools. It appears that the amount per
primary school student11 consists of an allowance for teaching, i.e., for the cost of the teaching staff,
and an allowance for other expenses (including support services).
10 In this decision, the Court discussed paragraph 19(1)(a), which is essentially the same as the current subsection 38(1).
11 A student recognized for purposes of funding is a student who was present on September 30, 2008, and whose
attendance was confirmed during the 2008-2009 school year: Budgetary rules for the 2008-2009 school year, certified
record of the Consulate General of Canada, p. 185.
Page: 20
[37] At tab 33 of the documents provided by the applicant, it also appears that the allowance for
teaching resources by individual represents an average allowance per student and is only a rough
guide because, at that point in time, the number of students for the current academic year had not
been finalized. It is clear that, since the Act requires a prospective assessment, i.e., over a period of
five years, the visa officer and the medical officer cannot obtain exact figures for each individual
whose file they are dealing with. The statutory definition therefore necessarily involves using
reasonable estimates.
[38] The Bulletin clearly explains how the calculation is done and the procedure to follow in
light of the most recent jurisprudence at the time it was adopted. The document clearly indicates
how the average per capita costs referred to in the Act are established. The threshold figure is the
Canadian Institute for Health Information (CIHI) aggregate, which represents the average per capita
health expenditure; a supplementary amount is added to that figure to account for the missing
expenditures for certain social services. In September 2008, it appears that the amount that had been
used since January 2003 was $4,057 ($3839 + $ 218), while it was set at $4,806 ($4,548 established
by the CIHI plus $258) in September 2008. That amount must then be multiplied by 5 to establish
the threshold determined by the Act.
[39] In this case, it appears from the CAIPS notes and the documentation in the record that the
medical officer used the figures suggested by the applicant to establish the average cost of the
services for which the state would continue to be responsible under the proposed plan, i.e., the
Page: 21
additional allowance for the teaching staff in a class of 1 to 10 students12 for a child disabled by
slight motor or organic disability or by a language disability (level 1 disability). That is, $9,023
minus the average cost of a regular student at the same level, $3,764, for an additional allowance of
$5,259 per year. This means than even considering that Rachel is otherwise generally in good health
(she has had only a little bronchitis and illnesses of children her age), the cost of social services
alone, without considering possible increases in costs in future years is above the threshold set by
the Act. In the plan and documentation that the applicant provided, there is nothing to indicate that
Rachel will be able to attend a regular school in the next five years, even if she were to make
enormous physical progress and her needs in terms of adaptive equipment, fittings, (orthotics) and
support services diminish.
Procedural fairness
[40] That being said, was there a breach of procedural fairness? The applicant submits in his
supplementary memorandum that it was not until he read the respondent’s affidavit and
memorandum that he became aware of a number of documents concerning the assessment of
Rachel’s health condition, for example, Dr. Chocron’s report, which the medical officer relied on to
form her opinion. He specifically refers to Exhibits B to J and N of the affidavit of Ms. Révah,
which were not sent to him in response to his access to information request. In his view, this breach
prevented him for providing an adequate response to the fairness letter.
12 A letter dated June 30, 2008, from André Martin, director of the École Victor-Doré, confirmed that Rachel was in a
class of nine students.
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[41] The applicant also contends in his initial memorandum that the medical officer and the visa
officer did not document in writing, as the Bulletin requires, all the steps of their analysis or all their
notes, for example, Dr. Quévillon’s calculation of the amount included in her medical notification of
August 18, 2008, reproduced in the fairness letter, or the calculation that was done to arrive at the
new assessment in 2009. Mr. Barlagne believes that this is a breach of the duty of procedural
fairness, which includes providing detailed and complete reasons for the process that was followed.
[42] The respondent argues that the CAIPS notes are sufficiently detailed and provide all the
necessary information. He also states that documents B to D and F to H, which deal with Rachel’s
health condition, did not need to be disclosed because the procedural fairness letter contained a
complete description of the medical officer’s medical notification. Moreover, through his access to
information request, the applicant obtained the MELS documentation establishing the costs related
to the diagnosis and prognosis described in the fairness letter. With respect to documents I, J and E,
they were sent to counsel for the applicant.
[43] We note first that the manager of access to information requests explained that these
documents were not sent to counsel for Mr. Barlagne because, in her view13, the application was
directed to Mr. Barlagne’s file while the documents in question were in Rachel Barlagne’s personal
file. The applicant disputes this, saying that the access to information section should have known
that it had to include Rachel’s file, which also bore the same number that he had referred to. It is not
13 This service is different from the visa officer’s.
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necessary to determine or discuss this issue in more detail because there are other remedies
available under the Access to Information Act, R.S.C. 1985, c. A-1, to deal with such issues.
[44] What must be determined is whether the decision-maker breached its duty of procedural
fairness in this application for permanent residence.
[45] The applicant relies on the decisions in Wong v. Canada (Minister of Citizenship and
Immigration) (1998), 141 F.T.R. 62, 42 Imm. L.R. (2d) 17 (F.C.) (Wong) and Jang v. Canada
(Minister of Citizenship and Immigration), 2001 FCA 312, 278 N.R. 172 (Jang).
[46] In my view, the Jang decision does not support the applicant’s argument. In that case, the
Court merely confirmed that a visa officer must give an applicant a second chance by sending a
fairness letter, which was done in this case. In addition, it is quite clear from paragraphs 13 to 14,
which are reproduced here, that a letter setting out the medical opinion received and describing the
diagnosis, prognosis and social services was sufficient to satisfy the requirement to act fairly.
[13] It is well established that a duty of fairness attaches to the
process by which a visa officer considers and decides an application
for an immigrant visa. Writing for a unanimous panel of this Court in
Muliadi v. Canada (M.E.I) [1986] 2 F.C. 205 (F.C.A.) at p. 215
Stone J.A. stated the principle as follows:
. . . I think it was the officer's duty before disposing of
the application to inform the appellant of the negative
assessment and to give him a fair opportunity of
correcting or contradicting it before making the
decision required by the statute.
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[14] In my view the duty of fairness in immigration cases does not
require the visa officer to divulge to a prospective immigrant the
complete details of the medical officers' method of evaluation or the
various facets of the specific decision-making processes adopted by
ministerial officials. Rather, the duty of fairness requires that a visa
officer give an appellant an adequate opportunity to respond to any
negative medical assessment, provided always that the medical
notification form prepared by the medical officer must clearly
enunciate the reasons for the negative assessment.
[47] The Wong decision may be distinguished because the fairness letter in that case did not
contain sufficient information, and the applicant had asked the visa officer twice for the missing
information, to no avail.
[48] In addition, Khan v. Canada (Minister of Citizenship and Immigration), 2001 FCA 345,
[2002] 2 F.C. 413 (Khan), the most recent Court of Appeal decision in this regard, is interesting
because it comments on the Wong decision in a case where the appellant, who was relying on that
case, argued that his right to procedural fairness had been denied because he had not been given an
adequate opportunity to respond to the visa officer’s concerns about excessive demand. Although
the issue of excessive demand will be discussed further on, this case is relevant even with respect to
the allegation that there was missing information or documentation that the medical officer had
based his opinion on.
[49] First, after discussing Wong and dismissing the applicant’s argument, the Federal Court of
Appeal referred to the response to the fairness letter to verify whether he had been denied his right
to comment (see paras. 19 to 25). Second, based on the factors laid out in Baker v. Canada
(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193 at paras. 21 to
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28 (Baker), the Court analysed the content of a visa officer’s duty of procedural fairness in
circumstances similar to the case before us. In addition, the Federal Court of Appeal noted the
following at paragraph 29:
[29] I agree that, where an applicant is clearly advised of the medical
diagnosis and prognosis, and of the services likely to be required, he
or she effectively knows the grounds for the potential refusal and has
the knowledge necessary to pursue the matter further. In these
circumstances, the Minister is not normally obliged to disclose in the
fairness letter the detail supporting the conclusion that a visa could be
refused because admission of the person concerned is likely to cause
excessive demands on medical or social services.
[50] Based on these authorities, it appears that the fairness letter of September 2, 2008, which
reproduced in their entirety the medical officer’s conclusions in her medical notification of
August 18, 2008, and which advised the applicant of the diagnosis, prognosis, the social services
required and their associated costs, was sufficient to fulfil the visa officer’s duty to act fairly. In
addition, as in Khan, a review of the applicant’s exhaustive response confirms that he was not
prevented from understanding why his application was refused and providing a full and complete
answer to the officer.
[51] In addition and finally, as I indicated above, it is absolutely clear that, regardless of the
prognosis or even the diagnosis applicable to this case, there is no dispute, and it is probable, if not
certain, that young Rachel Barlagne would use the special education services (teaching resources)
offered at École Victor-Doré.
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[52] As for the adequacy of the reasons, we note first that the September 24, 2008 Bulletin
cannot be relevant to the analysis of the notes or the medical notification dated August 2008. With
respect to the 2009 assessment, the Court is satisfied that the CAIPS notes are sufficiently complete
for the applicant to exercise his rights and for the Court to conduct a judicial review (VIA Rail
Canada Inc. v. Lemonde, [2001] 2 F.C. 25, 193 D.L.R. (4th) 357 at paragraph 19).
[53] Indeed, the medical officer indicated that she calculated the additional allowance by using
the figures provided by the applicant in Mr. Dupéré’s document (tab 33 of the documentation
provided with the Comments). She also indicated that she used the scale for disabled students 1.
This is completely sufficient to justify the calculation that is easily done with this data. The medical
officer did not consider the support services provided by the rehabilitation centre affiliated with
École Victor-Doré because the additional allowance for the cost of teachers already exceeded the
threshold set out in the Act, as indicated earlier. She stated in her notes: [TRANSLATION] “The other
documents provided as well as the financial ability or the ability and intention to contribute to the
future costs of social services support to set aside the excessive demand finding are subject to the
immigration officer’s assessment.” She therefore did not have to comment any further on them.
[54] The Court has read and re-read the CAIPS notes and is satisfied that the recorded
explanations and notes are sufficient in the context of this case to satisfy the requirements of the
Bulletin although that in itself is not the standard to apply, it being understood that the duty of
fairness considers this element, among others, as the Federal Court of Appeal stated in Via Rail
above and the Supreme Court of Canada in Baker.
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[55] The Court finds that there was no breach of the duty to act fairly.
Error in law
[56] Mr. Barlagne raises only one error in law although his argument on this issue is not very
clear. At paragraph 38(g) of his Comments, he says:
The budgetary policy of the Ministère de l’éducation, du loisir et du
sport du Quebec that was used to determine the additional allowance
of $7,045 (although no assessment or calculation was submitted to
that effect) highlights other categories of persons who require more
social services but who are not considered to cause “an excessive
demand” in an immigration process. This distinction between
immigrants breaches the Charter of Rights and Freedoms.
[57] The only category of immigrants identified is the category of school children in a
welcoming environment supportive of learning French for which MELS pays an additional
adjustment of $2,127 according to the document provided at tab 33.
[58] On that basis, the applicant concludes at paragraph 43 of his Comments that the fact that it is
acceptable that a category of children that place more demand on Quebec’s social services are not
considered to cause an excessive demand under subsection 38(1) of the Act whereas disabled
children like the applicant are. Thus, he states that this inadmissibility for permanent resident status
is based solely on the disability and is therefore contrary to the Charter.
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[59] He argues that the visa officer did not consider the fact that he was challenging the
constitutionality of subsection 38(1) of the Act. At the hearing, he emphasized that the officer had
jurisdiction to conduct this analysis because he has access to counsel in his Department.
[60] The submissions on this issue were very brief, even though the applicant indicated that this
was a very important argument in his case. Basically, he is relying on the Supreme Court of Canada
decision in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, 170
D.L.R. (4e) 1, as well as on the Convention on the Rights of the Child, without giving any details as
to how this Convention could have a bearing on this case. He refers to paragraphs 38 to 43 of his
[61] It should first be pointed out that in this case, the applicant did not serve notice on the
Attorney General of Canada or on the attorney general of each province as required by section 57 of
the Federal Courts Act, R.S.C. 1985, c. F-7, as amended. Although in his notice of application, the
applicant did not make a specific submission in that regard, he clearly indicated at the hearing that
he was challenging the constitutional applicability or operability of subsection 38(1). The absence of
such a notice in this case is fatal since it is a sine qua non condition for entertaining the
constitutional argument raised by the applicant: Canada (Minister of Canadian Heritage) v.
Mikisew Cree First Nation, 2004 FCA 66, [2004] 3 F.C.R. 436 at paras. 75-78, rev’d on other
grounds by [2005] 3 S.C.R. 388, 259 D.L.R. (4th) 610; Bekker v. Canada, 2004 FCA 186, 323 N.R.
195 at paras. 8, 9; Canada (Information Commissioner) v. Canada (Prime Minister), [1993] 1 F.C.
427, 57 F.T.R. 180 (F.C.) at paras. 90-92.
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[62] Moreover and in any event, the Court is not satisfied that the visa officer in this case had
jurisdiction to consider this constitutional argument or take it into account because he was bound to
apply the existing Act. In fact, the Act does not confer any discretion or jurisdiction in that regard.
Even in applying the test set out in Nova Scotia (Workers’ Compensation Board) v. Martin, 2003
SCC 54, [2003] 2 S.C.R. 504 at para. 48, it seems to me that that the finding in Gwala v. Canada
(Minister of Citizenship and Immigration), [1998] 4 F.C. 43, 147 F.T.R. 246 (F.C.) at paras. 10 to
22, affirmed on appeal by [1999] 3 F.C. 404, 242 N.R. 173 (F.C.A.) at paras. 1 to 3, with regard to
the lack of jurisdiction of senior immigration officers to decide constitutionality applies in this
[63] Finally, it should be noted that the applicant did not submit sufficient evidence to establish
discrimination between different types of immigrants because the class he describes at paragraph 42
is not one that exceeds the threshold set out in the Act. In fact, as the applicant seems to understand
very well at paragraph 41 of his Comments, it is not the total cost to MELS that must be compared
to the $4,806 threshold, but only the additional allowance of $2,127 which, over five years, is below
the threshold set out in the Act. There is therefore no evidence of differential treatment of a class of
immigrants as alleged by the applicant. As the Supreme Court of Canada has stated on many
occasions, it is important not to trivialize the review of Charter provisions, which requires a well
developed factual context. This is especially important given that the constitutionality of subsection
38(1) having regard to section 15 of the Charter has already been reviewed and affirmed by the
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Court (Chesters v. Canada (Minister of Citizenship and Immigration), 2002 FCT 727, [2003] 1 F.C
[64] Moreover, in Hilewitz, the Supreme Court of Canada confirmed that subsection 38(1) of the
Act is not based on an analogous ground since this subsection emphasizes excessive demand and
not an illness or disability. The concept of excessive demand is itself an individualized assessment
that takes into account the concrete situation of the child and the child’s family as well as the
reasonably expected costs for an individual. The fact that scales must be used in the assessment of
reasonable costs does not change the character or the emphasis of the legislative provision.
[65] The Court is satisfied that the visa officer and the medical officer performed an
individualized analysis of the social services that Rachel Barlagne would probably need in the next
five years. Now, finally, we must determine whether the decision is reasonable having regard to the
other errors raised by the applicant.
Other errors
[66] Under the standard of review of reasonableness, the Court must determine whether the
decision falls within a “range of possible, acceptable outcomes which are defensible in respect of
the facts and law.”14 It is not a matter of merely having the Court substitute its own assessment of
the evidence and arguments for that of the decision-maker on whom Parliament has conferred this
14 Dunsmuir, para 47.
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[67] The applicant argues that the visa officer and the medical officer did not take all of his
documentation and arguments into account, particularly those regarding Rachel’s state of health,
such as the letter from Ms. Josée Ouimet, Head of the School Rehabilitation Program at the Ste-
Justine Hospital (tab 49), which deals with support services.15 However, in this respect, the Court
notes there is a presumption that the decision-maker has considered and assessed all of the evidence
before the decision-maker.16
[68] He also contends that the decision-makers arrived at erroneous findings of fact because they
did not take into account his willingness and ability to pay, past family practices for supporting
Rachel, their detailed plan, the family and community support she receives, the family’s monetary
and human support, the uprooting and negative impact on her sister Lara, the incentives to relocate
Mr. Barlagne’s business, etc.
[69] As I mentioned earlier, none of the documents or arguments described above has a bearing
on Rachel’s need17 for specialized education or the fact that, according to the plan submitted, the
state would have to cover an additional allowance for the teaching resources. It should be recalled
15 The CAIPS notes indicate that he properly reviewed this letter which he describes as indicating that “school offers
fewer rehabs services as child ages; and parents can call on private service”. As for the medical officer, see para. 53.
16 Florea v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 598 (QL) (F.C.A.), Hassan v.
Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317, 36 A.C.W.S. (3d) 635 (F.C.A.).
17 This comment should not be understood to imply that the visa officer or the medical officer did not take into account
the arguments and documents submitted by the applicant. In this respect, the Court is adopting most of the respondent’s
comments in his supplementary memorandum dealing with each of the arguments presented. The Court was not satisfied
that the decision was made without taking into account this documentation or these arguments.
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that this is the main reason why the medical officer and the visa officer found that she was
[70] There is no doubt in the Court’s mind that the medical officer took into account the
applicant’s submissions regarding Rachel’s condition since, in her evaluation of the additional
allowance for teaching services, she went from Class 2 (more expensive) to Class 1. And she made
no negative comments on the proposed plan concerning the support services.
[71] As I also previously said, the impact of a relocation on Lara, the relocation incentives, and
the future economic contribution of Mr. Barlagne’s business to Quebec are not relevant to the
process that had to be followed by the visa officer, even if they may be relevant for a possible
application for exemption under section 25. The visa officer can and must take into account only the
evaluation of the health or social services requirements and how the plan proposed by the parents
and their ability to pay would reduce the reasonable estimate of costs for the child’s probable care.
The visa officer has no discretion except with regard to these factors.
[72] Given the threshold set out in the Act is less than the cost of the additional special education
allowance for teaching resources only in a class of 1 to 10 students (Class 7), even if the decisionmaker
had erred in reviewing Mr. Barlagne’s financial ability to pay for support services, this error
would not be sufficient to warrant setting the decision aside.
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[73] However, given the insistence of the applicant’s counsel on this point, I believe it is
advisable to make a few comments on the evidence that was before the officer.
[74] Even if the parties agree that the visa officer’s notes were inaccurate with regard to the
savings of Mrs. Barlagne, whose bank statement indicated, without giving particulars, the balance of
a second account (passbook with 16,398.83 euros), the fact remains that the evidence submitted to
the visa officer left something to be desired, given the many omissions.
[75] As the officer indicated in his CAIPS notes, Mr. Barlagne had not submitted any personal
reference letters or any financial documents with his original application. His counsel described
herself as acting pro bono (unpaid). The family was without the salary of Mrs. Barlagne, who had
worked in Guadeloupe but could no longer do so since her arrival in Quebec, given the conditions
of her visa. Mr. Barlagne did not provide any particulars about his current income (or since his
arrival in Quebec).
[76] As mentioned earlier, the only corporate financial document submitted was that of a French
company which did not show any profit for a fiscal year ending on December 31, 2005. Although
the applicant’s counsel stated in her written submissions that the visa officer should have known
that 2005 was the French company’s last year of operations, nothing was indicated to that effect at
paragraph 45 of the applicant’s Comments. Moreover, in such circumstances, the Court finds
surprising the applicant’s argument that the visa officer should have been satisfied with the business
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income reported in the balance sheet without being concerned about the fact that the company was
operating at a loss.
[77] No financial documents or particulars were provided with respect to the Quebec company.
Paragraph 46 of the Comments simply states that the company is in a transitional situation with a
solid foundation and constantly expanding development opportunities.
[78] Mr. Barlagne did not submit any evidence of personal savings, and instead relied on the
savings of the other family members in France, in the amount of approximately 58,285.84 euros
(instead of the 42,000 euros described by the visa officer). However, as the visa officer noted, the
applicant did not submit any information on the family’s cash flow, its resources in Canada or its
current ability to save money.
[79] All that to say that if the Barlagne family’s financial ability had been essential to the
determination of Rachel’s admissibility, it is far from evident that the Court would have found that
the decision was unreasonable, even taking into account the miscalculation in the savings.
[80] In conclusion, the applicant did not satisfy the Court of the existence of a reviewable error in
this file, and the Court can only encourage him again to submit an application for exemption under
section 25, if he has not already done so.
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[81] The parties were invited to submit questions for certification. They indicated that they did
not have any. The Court concurs with the parties in this respect.
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THE COURT ORDERS AND ADJUGES that the application is dismissed.
“Johanne Gauthier”
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DOCKET: IMM-2486-09
PLACE OF HEARING: Montréal, Québec
DATE OF HEARING: February 23, 2010
DATED: May 18, 2010
Patrice Jourdain FOR THE APPLICANT
Michèle Joubert
Patrice Jourdain
Montreal, Quebec
John H. Sims, Q.C.
Deputy Attorney General of Canada
Montreal, Quebec