Saturday, July 21, 2012

Pinto Ponce—actual practices of state protection must be assessed

Pinto Ponce v. Canada (Citizenship and Immigration), 2012 FC 181 (CanLII)

Judge: Justice Russell; Date heard: January 17, 2012; Date decided:February 8, 2012; Counsel for Pinto Ponce: J. Byron M. Thomas & Raoul Boulakia; Counsel for Minister: David Duggins; Place of Hearing: Toronto, Ontario.

The applicant is a citizen of Bolivia who suffered domestic violence at the hands of her common-law partner. In 2005, she made a complaint to the police after being attacked and kicked out of the house. The police officer laughed at her and told her to be a better wife. He also called her abusive partner, and spoke with her partner’s husband, a senior police officer.

The partner found out about the report, presumably through his uncle. In retaliation, he beat and raped the applicant. The applicant fled to live with her brother in another city, but her partner found there there and assaulted her in public, until bystanders intervened.

The applicant made another complaint at the original police station, and spoke to a different officer who was more receptive. The applicant then went into hiding at her uncle’s home in a third city, La Paz. She did not go out lest her partner find her. Her parents told her that the police were not investigating, and that her partner was still looking for her.

At her uncle’s advice, the applicant fled Bolivia to the United States, where she lived illegally until she found out about the Canadian refugee system in July 2009, finally coming to Canada in December 2009.

The Refugee Protection Division (RPD) denied the applicant’s claim on the basis of state protection (para. 13).

Justice Russell found that the standard of review on the question of state protection as a whole was reasonableness (paras. 26-27), but that on the issue of the legal test, the standard was correctness (para. 28).

On reviewing the objective evidence of state protection in Bolivia for victims of domestic violence, the RPD had stated:

…I accept that Bolivia’s past history of offering protection to women as victims of domestic violence was lamentable combined with societal beliefs that accepted this violence as a way of life. Yet, as this claim is forward looking, I accept that Bolivia is demonstrating an awareness of its past problems and is making advances through legislation, application and continued dialogue within the government, its citizens and foreign countries on further efforts to improve its past weakness related to domestic violence. (cited at para. 72)

Justice Russell found that the RPD had failed to look past the government initiatives to see whether “there is adequate protection in practice” (para. 73). He stated that there was “certainly a significant amount of evidence before the RPD that Bolivia’s “lamentable” past history of protecting victims of domestic violence has not changed”.

Justice Russell relied on E.Y.M.V. v Canada (Minister of Citizenship and Immigration) 2011 FC 1364, which itself relies on Jaroslav v. Canada (Minister of Citizenship and Immigration), 2011 FC 634 and Beharry v.Canada (Minister of Citizenship and Immigration), 2011 FC 111.


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