Date:
20060720
Docket:
IMM-48-06
Citation:
2006 FC 906
BETWEEN:
ARLETTE
SALIBY AND JOSEPH JREIJ
Applicants
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HARRINGTON J.
[1] July 31, 2002 is a date that will remain
forever graven in the memory of Joseph Jreij. An incident on the road left him
with a criminal record in Lebanon and led the Canadian government to refuse
permanent residence to him and his wife. With this application, they are
seeking judicial review of this decision.
[2] While he was driving to his office
in Beirut, Mr. Jreij was caught in a traffic jam caused by a workers’
demonstration against certain decisions of the Lebanese government.
[3] The security forces were in the
process of dispersing the crowd and reopening the roads. Apparently taking Mr.
Jreij for one of the demonstrators, they banged on his car with their guns and
insulted him. Then, Mr. Jreij says:
[translation]
To protect my dignity, I had to respond to their acts with similar acts. They
then detained me on the pretext that I was resisting the security forces,
although I am simply an unarmed civilian, having only them and my faith in God
to protect me.
[4] In the result
of this altercation, Mr. Jreij was charged and received a criminal conviction.
The sentence was handed down initially in absentia, on June 14, 2003,
then a second time in his presence on August 11, 2003. He was sentenced to pay
a fine. The Court has two documents before it in connection with this
conviction: one is entitled [translation]
“Summary of judgment delivered by the military tribunal”, and the other, [translation] “Criminal Record”.
[5] In the summary
we read:
Type
of crime Resisting security forces –
Passive
resistance and insulting them
Date
and place of crime Dekwaneh – 31/7/2002
Sections
of law 380-383-254
[6] As to the
criminal record, it does not refer to the relevant statutory provisions but
describes the nature of the crime as follows:
|
Date of judgment
|
Court issuing the judgment
|
Type of crime
|
Type and duration of sentence
|
|
11/8/2003
|
Military
Tribunal Criminal
|
|
100.000 fine
|
DECISION UNDER REVIEW
[7] In a letter
dated November 16, 2005, the second secretary of the Canadian Embassy in
Damascus wrote to Arlette Saliby, Mr. Jreij’s wife, to inform her that she was
inadmissible to Canada under section 42(a) of the Immigration and
Refugee Protection Act (IRPA), S.C. 2001, c. 27 because her
husband belonged to a class of inadmissible individuals. The letter explained
that Mr. Jreij fell within the class defined in section 36(2)(b) of the
IRPA, which reads as follows:
|
36. (1) A permanent resident or a foreign
national is inadmissible on grounds of serious criminality for
|
36. (1) Emportent interdiction de territoire pour
grande criminalité les faits suivants :
|
|
. .
.
|
[…]
|
|
(2) A foreign
national is inadmissible on grounds of criminality for
|
(2) Emportent,
sauf pour le résident permanent, interdiction de territoire pour criminalité
les faits suivants :
|
|
. . .
|
[…]
|
|
(b)
having been convicted outside Canada of an offence that, if committed in
Canada, would constitute an indictable offence under an Act of Parliament, or
of two offences not arising out of a single occurrence that, if committed in
Canada, would constitute offences under an Act of Parliament;
|
b) être déclaré coupable, à l’extérieur du
Canada, d’une infraction qui, commise au Canada, constituerait une infraction
à une loi fédérale punissable par mise en accusation ou de deux infractions
qui ne découlent pas des mêmes faits et qui, commises au Canada,
constitueraient des infractions à des lois fédérales;
|
[8] It followed
from this conclusion that no visa could be issued to Ms. Saliby and Mr. Jreij,
pursuant to section 11 of the IRPA.
[9] The second
secretary described Mr. Jreij’s crime as follows:
[translation]
On August 11, 2003, Joseph Jreij was convicted in Lebanon of an offence, namely
resisting the security forces. If committed in Canada, this offence
would be punishable under section 129 of the Criminal Code of Canada
and would be an indictable offence.
[10] The relevant
passages of section 129 of the Criminal Code, R.S.C. 1985, c. C-46,
read:
|
129. Every one who
|
129. Quiconque, selon le cas :
|
|
(a)
resists or wilfully obstructs a public officer or peace officer in the
execution of his duty or any person lawfully acting in aid of such an
officer,
|
a) volontairement entrave un fonctionnaire
public ou un agent de la paix dans l’exécution de ses fonctions ou toute personne
prêtant légalement main-forte à un tel fonctionnaire ou agent, ou lui résiste
en pareil cas;
|
|
|
[…]
|
|
(d) an
indictable offence and is liable to imprisonment for a term not exceeding two
years, or
|
d) soit d’un acte criminel et passible
d’un emprisonnement maximal de deux ans;
|
|
(e) an
offence punishable on summary conviction.
|
e) soit d’une infraction punissable sur
déclaration de culpabilité par procédure sommaire.
|
STANDARD OF REVIEW
[11] It is clear that
the decision of the second secretary, that raises a question of fact, is only
reviewable if it was patently unreasonable. However, the interpretation of the Criminal
Code is a question of law. The examination of the facts of this case in
relation to such a question is subject to the standard of review of
reasonableness simpliciter.
ANALYSIS
[12] All the
documents mentioned so far were supplied to the Court by the Canadian Embassy
in Damascus, as provided for by the Federal Courts Immigration and Refugee
Protection Rules, SOR/93-22:
|
17. Upon receipt of an order under Rule 15,
a tribunal shall, without delay, prepare a record containing the following,
on consecutively numbered pages and in the following order:
|
17. Dès réception de l’ordonnance visée à la
règle 15, le tribunal administratif constitue un dossier composé des
pièces suivantes, disposées dans l’ordre suivant sur des pages numérotées
consécutivement :
|
|
. . .
|
[…]
|
|
(b) all
papers relevant to the matter that are in the possession or control of the
tribunal,
|
b) tous les documents pertinents qui sont
en la possession ou sous la garde du tribunal administratif,
|
[13] In all cases
relating to the application of the IRPA, the judicial review process follows
two stages. At the first stage, the applicant must obtain leave from the Court
to submit his application. Once leave is granted, the parties have an
opportunity to submit additional affidavits. In this case, the Minister
provided to the Court an affidavit to which was attached the three sections of
the Lebanese Penal Code that are referred to in the summary of the judgment of
the military tribunal that convicted Mr. Jreij. It is important to note,
however, that there is no indication anywhere as to whether the second
secretary of the Embassy had access to these provisions when he refused to issue
the visas. If he did not have these documents before him, he certainly should
have had them (Association des crabiers acadiens v. Canada (Attorney
General), 2006 FC 222, [2006] F.C.J. No. 294 (QL)).
[14] Section 254 of
the Lebanese Penal Code provides for the reduction in sentences where there are
mitigating circumstances and is therefore irrelevant in this case.
[15] Section 380
provides as follows:
[translation]
Any act of active or passive resistance interfering with the lawful
activity of one of the persons of the capacity expressed in the preceding
article shall be punished by up to one month of imprisonment and a fine of up
to 50 pounds.
[Emphasis added]
[16] Under the
relevant portion of section 383, the offence is constituted by:
[translation]
Insulting, by words, actions or threats addressed to an official in the
exercise or on the occasion of the exercise of his duties, or brought to his
knowledge through the intention of the perpetrator.
[17] There are a
number of ways to ensure that there is an equivalence between crimes under
Canadian law and crimes provided for in the law of another state. In Hill v.
Canada (Minister of Employment and Immigration) (1987), 73 N.R. 315, 1 Imm.
L.R. (2d) 1 (F.C.A.), Mr. Justice Urie described three methods used
to establish equivalence that appear to me to be applicable in this case:
. . . first, by a comparison of the precise
wording in each statute both through documents and, if available, through the
evidence of an expert or experts in the foreign law and determining therefrom
the essential ingredients of the respective offences; two, by examining the
evidence adduced before the adjudicator, both oral and documentary, to
ascertain whether or not that evidence was sufficient to establish that the
essential ingredients of the offence in Canada had been proven in the foreign
proceedings, whether precisely described in the initiating documents or in the
statutory provisions in the same words or not; and three, by a combination of
one and two.
[18] It is unclear
whether the second secretary compared the specific language of the Criminal
Code with that of the Lebanese Penal Code. I was urged to assume that he
had done so since the Minister provided the Lebanese legislation. I will make
that assumption in this case because it does not uphold the Minister’s
submissions.
[19] What is certain
is that the second secretary gave no indication that he had benefited from the
opinion of an expert in Lebanese law. If, in fact, the secretary had had the
Lebanese legislation before him and had compared it to section 129 of the Criminal
Code, he should have realized that in Lebanon resistance to the security
forces can be active or passive, while in Canada the law clearly requires that
the resistance not be simply passive (R. v. Whatcott,
[2005] S.J. No. 450, at paragraph 23 (Sask. Q.B.); R. v. Ahooja,
[2004] J.Q. No. 4925 (M.C.); R.v. Bouchard, [1999] R.J.Q. 2165 (M.C.); R.
v. Sortini (1978), 42 C.C.C. (2d) 214 (Ont. Prov. Ct.).
[20] However, if the second secretary
merely looked at the evidence, this means he had only the two documents
concerning Mr. Jreij’s conviction before him, as well as the two statements
written by Mr. Jreij. Mr. Jreij’s first statement simply referred to the
demonstration without providing enough particulars and was therefore clearly
inadequate. He provided a further statement that the second secretary seems to
have thought was adequate. Indeed, if the secretary thought this statement left
him with doubts as to what had happened between Mr. Jreij and the security
forces, he had a duty to mention them so that some details could be provided to
him (Khwaja v. Canada (Minister of Citizenship and Immigration), 2006 FC
522, [2006] F.C.J. No. 703 (QL)).
[21] As
I mentioned, under section 129 of the Criminal Code, it is not
sufficient that resistance to the authorities be merely passive. In this case,
nothing suggests that Mr. Jreij did anything other than hurl some insults at
the security forces. Nothing indicates that he acted violently. Any finding
along those lines would be purely speculative and would therefore be patently
unreasonable (Isse v. Canada (Minister of
Citizenship and Immigration), [1998] F.C.J. No. 1020 (QL), at
paragraph 14).
[22] The Minister
also suggested that Mr. Jreij’s activities could be viewed as obstruction of
justice. Indeed, section 129 provides for two distinct crimes, resistance and
obstruction. The case law treats them differently (R.
v. Pittoors, [2000] A.J. No. 1400, at paragraph 16 (Alta. Prov. Ct.); Sortini,
supra). That said, the fact is that Mr. Jreij was not sentenced for
obstruction and the visas were not refused on the basis of such a charge.
[23] Since the second secretary erred in
comparing the crime described in section 129 to the one for which Mr. Jreij was
convicted and since, in light of the facts, it would be patently unreasonable
to find that Mr. Jreij engaged in anything other than passive resistance to the
security forces, I hold that the application for judicial review should be
allowed. The visa application shall be reheard by a person who was not involved
in assessing the file of Ms. Saliby and Mr. Jreij. The Minister will have until
July 26, 2006 to propose any questions of general importance that might warrant
an appeal and the applicants will have until July 31 to reply to him.
Judge
Ottawa, Ontario
July 20, 2006
Certified true
translation
François Brunet,
LLB, BCL
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