Date: 20061130
Docket: IMM-2814-06
Citation: 2006 FC 1451
Ottawa, Ontario, November 30,
2006
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
IBRAHIM
MOHAMMAD AL HUSIN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
The
Applicant’s refugee claim was denied by the Immigration and Refugee Board
(Board) on the basis of the exclusion in Article 1F(b) of the United Nations
Convention Relating to the Status of Refugees. The Board found that it had
serious grounds to believe that the Applicant had committed a serious
non-political crime and that he had not completed his sentence for that crime
before entering Canada. This is the judicial review of the Board’s
decision.
II. BACKGROUND
[2]
The
Applicant is a citizen of Jordan who, while at college in the United
States,
became friends with a group of suspected methamphetamine traffickers. For
purposes of this judicial review, the events of his arrest and conviction in
the United
States
are the relevant circumstances.
[3]
The
Applicant claimed that a friend had offered him $1,000.00 to receive five boxes
and turn them over to a person who would meet him at a gas station. That third
person would give the Applicant a bag which he would retain until it was picked
up by a fourth person.
[4]
On
March 15, 2000, the Applicant was arrested after dropping off the boxes and
receiving the bag from the people at the gas station. The bag contained
$81,000.00; the boxes contained large quantities of pseudoephedrine.
[5]
The
Applicant pleaded “no contest” to one charge of possession of ephedrine and
hydriotic acid contrary to California state law, California
Health and Safety Code. He was sentenced to one (1) year in state
prison and five (5) years of probation.
[6]
Upon
his release in March 2001, the Applicant was arrested by federal Immigration
and Naturalization Services and deported to Jordan. Despite his
deportation, the State Court reportedly issued a bench warrant for his arrest
for involuntary violation of his probation by leaving the country.
[7]
The
Board did not consider the merits of the Applicant’s refugee claim because it
held that Article 1F(b) of the United Nations Convention Relating to the
Status of Refugees applied where the Board had “serious reasons” to support
that an applicant committed a serious non-political crime:
Article 1. Definition of the term
“refugee”
…
F. The provisions of this Convention
shall not apply to any person with respect to whom there are serious reasons
for considering that:
…
(b) He has committed a serious
non-political crime outside the country of refuge prior to his admission to
that country as a refugee;
[8]
The
Board recognized that the burden of proof in this instance, as it is based on
“serious reasons”, is something less than the balance of probabilities.
[9]
The
Board also considered the provision of the California Health and Safety Code
to which the Applicant pleaded no contest:
11383(c)(1) Any person who, with
intent to manufacture methamphetamine or any of its analogs … possesses
ephedrine or pseudoephedrine … is guilty of a felony …
[10]
The
Applicant’s position was that there was no equivalent provision in Canada to
that in the United
States
under which the Applicant was sentenced. In that submission he was supported by
a Citizenship and Immigration Canada document which said:
Both subjects were being investigated in
a conspiracy with others to aid and abet the manufacture of methamphetamine and
distribute pseudoephedrine. The case involved a number of individuals that were
implicated from the USA to Canada. The difficulty being that possession of
pseudoephedrine is not illegal in Canada but is illegal in the U.S. when one
has reasonable cause to believe it would be used in the manufacturing of a
controlled substance; specifically methamphetamine.
[11]
The
Board concluded that even if there was no equivalent section in Canada, s. 7 of the
Controlled Drugs and Substances Act (CDSA) makes it an indictable
offence to manufacture methamphetamine. Further, the Board held that s.
21(1)(b) of the Criminal Code of Canada (CCC) makes it an offence to do
“… anything for the purpose of aiding any person to commit” an offence – in
this case, the manufacture of methamphetamine.
[12]
The
consequence of the Board’s analysis is that the acts taken by the Applicant to
which he pleaded (the Board uses the word “guilty”) would constitute a crime in
Canada. The Board
held that a sentence of six (6) years, even though only one (1) year was
incarceration, was a serious crime.
[13]
On
the issue of whether the Applicant had served its sentence, the Board held that
the reason for this inability to serve his sentence – his deportation - was an
irrelevant excuse. The fact remained that he had not served his sentence. The
Board referred to the Court of Appeal’s decision in Chan v. Canada (Minister
of Citizenship and Immigration) (C.A.), [2000] 4
F.C. 390, [2000] F.C.J. No. 1180 (QL) as making it clear that where a person
has served the sentence for the serious crime, the exclusion in Article 1F(b)
does not apply.
III. ANALYSIS
[14]
There
are two issues in this judicial review:
(a) Does
the conviction form the requisite basis for the Applicant’s exclusion under
Article 1F(b)?
(b) If
so, did the Applicant serve his sentence which would allow him to avoid the
application of Article 1F(b)?
A. Serious
Non-Political Crime
[15]
I
adopt the reasoning in Médina v. Canada (Minister of Citizenship and
Immigration), 2006 FC 62, [2006] F.C.J. No. 86 (QL) that in respect of
whether Article 1F should apply in a particular case, the issue is generally
one of mixed law and fact and attracts the standard of review of reasonableness
simpliciter. However, on this first issue, the determination that the U.S. conviction
was based on an offence for which the Canadian equivalent is aiding and
abetting, is a matter of law for which the standard should be correctness.
[16]
The
Board’s decision is based on its understanding of s. 21 of the CCC which reads:
|
21. (1) Every one is a party to an offence who
(a)
actually commits it;
(b) does
or omits to do anything for the purpose of aiding any person to commit it; or
(c)
abets any person in committing it.
(2)
Where two or more persons form an intention in common to carry out an
unlawful purpose and to assist each other therein and any one of them, in
carrying out the common purpose, commits an offence, each of them who knew or
ought to have known that the commission of the offence would be a probable
consequence of carrying out the common purpose is a party to that offence.
|
21.
(1) Participent à une infraction :
a) quiconque la commet
réellement;
b) quiconque accomplit ou
omet d’accomplir quelque chose en vue d’aider quelqu’un à la commettre;
c) quiconque encourage
quelqu’un à la commettre.
(2) Quand deux ou plusieurs personnes forment ensemble le projet
de poursuivre une fin illégale et de s’y entraider et que l’une d’entre elles
commet une infraction en réalisant cette fin commune, chacune d’elles qui
savait ou devait savoir que la réalisation de l’intention commune aurait pour
conséquence probable la perpétration de l’infraction, participe à cette
infraction.
|
[17]
The
basic statement of law as to aiding and abetting is set forth in R. v.
Mammolita (1983), 9 C.C.C. (3d) 85 (Ont. C.A.), para. 16:
Quite apart from liability as a
principal, a person may be guilty of wilful obstruction under s. 387(1)(c) if
that person has aided or abetted another person to commit the offence. In order
to incur liability as an aider or abettor:
(i) there must be an
act or omission of assistance or encouragement;
(ii) the act must be
done or the omission take place with the knowledge that the crime will be or is
being committed;
(iii) the act must be
done or the omission take place for the purpose (i.e. with the intention) of
assisting or encouraging the perpetrator in the commission of the crime.
(emphasis
added)
[18]
An
essential element of the offence of aiding and abetting is that the act, which
was said to be aided or abetted, actually occurs. This principle is further
addressed in Stuart, Canadian Criminal Law: A Treatise, 4th
ed. (Toronto: Carswell,
2001) at 609:
… the actual perpetrator must have
committed the actus reus of the crime before anyone
can be found an accessory … This one special rule concerning the actus reus committed by the actual
perpetrator is a vestige of the English common law view that the liability of
any form of accessory is derivative to that of the actual perpetrator.
[19]
The
Board erred in concluding that the American offence was the equivalent of the
Canadian offence of aiding and abetting. There was no requirement in U.S. law that the
methamphetamine actually be manufactured. There was no evidence that the
substance was manufactured from the material supplied by the Applicant.
[20]
The
Board made its decision on a finding of equivalency which, in my view, cannot
be sustained. Therefore, the decision must be overturned on this ground.
B. Sentence
[21]
The
parties also raise the issue of whether the Applicant had served his sentence.
On this issue, the parties also agree that there is a question of importance
for certification.
[22]
The
Applicant relies on the Chan decision to argue that the situations are
the same, and that even though the respective sentences could not be served
because the person was deported, the person could not be held to be
inadmissible under Article 1F(b).
[23]
While
Chan makes it clear that a person who has served his sentence cannot be
excluded under Article 1F(b), it is unclear whether on the facts, Chan had
completed his probation although the suggestion is that he was deported after
release from prison but before completion of probation.
[24]
The
argument is that Chan stands for the proposition that failure to
complete probation is not a bar to admission to Canada if that
probation has been rendered impossible by reason of deportation.
[25]
In
the current case it is clear that Husin’s probation imposed under state law was
rendered impossible by action of U.S. federal authorities.
The issuance of a bench warrant stands for nothing more than that Husin had not
complied with his probation terms.
[26]
The
Respondent argues that the Chan decision has been undermined by the
Court of Appeal’s decision in Zrig v. Canada (Minister of
Citizenship and Immigration), 2003 FCA 178, [2003] F.C.J. No. 565 (QL).
While some of the discussion in that decision may suggest that the Chan
decision should be approached with caution, it is noteworthy that the Court of
Appeal in Zrig at para. 64 did not find Chan to be relevant to
the issues that had to be decided in that case:
In my opinion, this Court’s judgment in Chan,
supra, does not help the appellant in any way, since in the case at bar
he was neither charged with nor convicted of the crimes for which the Refugee
Division held him responsible as an accomplice by association.
[27]
Justice
Noël in Médina held that failure to serve the balance of a prison term
(he served 52 months of a 60-month incarceration period) and any probation
period due to deportation meant that the sentence had not been served.
[28]
On
a plain reading of the Chan decision, the Applicant in this case did not
serve his sentence and therefore the Board’s conclusion was correct.
[29]
The
issue which remains unclear is whether a deportation order has the effect of
completing the sentence or truncates the sentence in such a way that it can
never be completed. If part of the aim of Article 1F(b) is to permit people who
have completed their sentence from ever being admissible, then that aim would
be frustrated by allowing a deportation order to make fulfilment of a sentence
impossible.
[30]
While
the simple solution might be to read in that the period of exclusion from
admissibility is the period of the unserved sentence, this ignores the fact,
particularly with probation, that the person is subject to terms and conditions
of conduct, the fulfilment of which is impossible to determine.
[31]
As
there is a need for clarification of this sentence issue, I will certify the
following questions:
1. Does
serving a sentence for a serious crime prior to coming to Canada allow one to
avoid the application of Article 1F of the Convention?
2. If
the answer to question 1 is affirmative, when and in what circumstances is a
sentence deemed served, specifically does a deportation have the effect of
deeming a sentence served?
[32]
The
parties raised no issue as to whether the crime in this case was serious and I
therefore have accepted, without deciding, that it was.
[33]
The
Court also notes that the Board did not decide the merits of the refugee claim.
As suggested in Chan, this is the preferred practice.
IV. CONCLUSION
[34]
For
reasons given, this judicial review will be granted, the decision of the Board
quashed and the matter remitted for a new decision by a differently constituted
panel of the Board.
[35]
The
following questions are hereby certified:
1. Does
serving a sentence for a serious crime prior to coming to Canada allow one to
avoid the application of Article 1F of the Convention?
2. If
the answer to question 1 is affirmative, when and in what circumstances is a
sentence deemed served, specifically does a deportation have the effect of
deeming a sentence served?
JUDGMENT
IT IS ORDERED THAT:
(a) This
application for judicial review is granted, the decision of the Board is
quashed and the matter is to be remitted for a new decision by a differently
constituted panel of the Board.
(b) The following
questions are certified:
1. Does
serving a sentence for a serious crime prior to coming to Canada allow one to
avoid the application of Article 1F of the Convention?
2. If
the answer to question 1 is affirmative, when and in what circumstances is a
sentence deemed served, specifically does a deportation have the effect of
deeming a sentence served?
“Michael
L. Phelan”
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