[1] In 1992, Mr. Sicuro was the subject of a prosecution in Italy for several offences arising from an incident with a former girlfriend. He received a suspended sentence for those offences, which were later "extinguished" under Italian law and then sought to emigrate to this country to pursue a relationship with a Canadian woman. A designated immigration officer denied him permanent residence by reason of his criminal history. At issue in this application for judicial review of that decision is whether he was ever "convicted" in Italy of the crimes for which he was sentenced, within the meaning of that term in the former Immigration Act, R.S.C. 1985, c. I-2 (the "former Act") and if so, what, if any, recognition or effect should be given to the "extinguishment" of the offences and sentence.
BACKGROUND
[2] The charges Mr. Sicuro faced when he appeared before the court in Reggio Calabria are, at first impression, very serious. The immigration officer found that these offences were equivalent to certain subsections of Canada's Criminal Code, R.S.C. 1985, c. C-46 (the "Canadian Criminal Code"). The officer described such offences and their Canadian equivalents as follows:
1. "Insult", pursuant to article 594 of the Italian Criminal Code. I have equated this offence to "indecent telephone calls", pursuant to subsection 372(2) of the Criminal Code of Canada, a summary offence for which a term of imprisonment not exceeding two years may be imposed.
2. "Threat", pursuant to article 612 of the Italian Criminal Code. I have equated this offence to "uttering threats", pursuant to subsection 264.1(a) of the Criminal Code of Canada, an indictable offence for which a term of imprisonment not exceeding 5 years may be imposed.
3. "Insult", pursuant to article 594 paragraphs 1 and 4 of the Italian Criminal Code. I have equated this offence to "causing a disturbance", subsection 175(1)(a) of the Criminal Code of Canada, a summary offence.
4. Bodily injuries, (4 counts)", pursuant to article 582 of the Italian Criminal Code. I have equated this offence to "assault causing bodily harm, subsection 267(b) of the Criminal Code of Canada, for which a term of imprisonment not exceeding 10 years may be imposed.
5. "Damage (2 counts)", pursuant to article 635 of the Italian Criminal Code. I have equated this offence to "mischief", subsection 430(4) of the Criminal Code of Canada, an indictable offence for which a term of imprisonment not exceeding 2 years may be imposed.
6. "Forceful indecent assault", pursuant to article 512 of the Italian Criminal Code. I have equated this offence to "sexual assault", subsection 271(1)(a) of the Criminal Code of Canada, an indictable offence for which a term of imprisonment not exceeding 10 years may be imposed.
[3] The evidence indicates, however, that the circumstances of these offences were at the lower end of the scale of such behaviour and that Mr. Sicuro had no prior criminal record. Accordingly he was granted by the investigating magistrate, with the consent of the prosecution, a "senteza di patteggiamento" which consisted of one year's imprisonment with the sentence suspended. He had spent approximately two weeks in custody prior to this disposition of the charges.
[4] The patteggiamento process, according to the evidence, may be described as a form of "plea bargain" in which the defendant agrees to accept a reduced sentence in return for foregoing his right to a trial. Unlike a negotiated plea in the Canadian context, there appears to be no requirement that the defendant formally acknowledge his guilt before sentence is imposed. Presumably, although this was not entirely clear from the record, the investigating magistrate must be satisfied that the legal and factual elements of the offence can be established before imposing the sentence.
[5] After the passage of five years during which the applicant remained of good behaviour, he applied to have his criminal record "extinguished" under Italian law. This was granted in June 1999 by the court of Reggio Calabria. The English translation of the court's order suggests that the offences themselves were "extinguished" or purged from Mr. Sicuro's record. However,
legal counsel contacted by the immigration officer for an opinion stated the view that the "extinction of the criminal offence does not annul the fact that a criminal offence has been committed but only causes the conviction (which was suspended) not to be executed following the five year period of fair behaviour."
[6] In August 1997, Mr. Sicuro applied for permanent residence in Canada as an independent skilled worker. He has experience and training as an aeronautical engineer. By letter dated July 28, 1999, the Immigration Section of the Canadian Embassy in Rome refused his application for permanent residence, due to criminal inadmissibility. The applicant then sought judicial review to the Federal Court but discontinued his application when the respondent agreed to re-open and reconsider his permanent residence application.
[7] The applicant attended several interviews at the Canadian Embassy in Rome in1998 and 1999. Throughout the processing of his application, the applicant, as well as his Italian and Canadian lawyers, exchanged numerous pieces of correspondence with Citizenship and Immigration Canada ("CIC") officials, relating, inter alia, to the issue of his 1992 offences and the subsequent expungement of these offences from his record in 1999. This is evident from the tribunal record which is voluminous, just shy of 1000 pages.
[8] In September 1999, the applicant submitted an application for rehabilitation to the Canadian Embassy in Rome. Along with his application, he submitted documentation and submissions explaining the circumstances surrounding his charges. Such application was refused by letter dated August 28, 2001. The applicant sought leave for judicial review of this decision, however, leave was not granted by order of this court dated June 6, 2002, as the applicant had failed to file an application record.
The Officer's Decision
[9] The officer concluded, in a letter dated December 12, 2001, that the applicant was inadmissible to Canada because he was a person described in subsections 19(1)(c.1)(i) and 19(2)(a.1)(i) of the former Act. The officer also noted that the applicant's application for approval of rehabilitation was refused by the Minister on August 28, 2001.
APPLICANT'S SUBMISSIONS
[10] The applicant submits that the officer erred in law in determining that he was a person described in subsections 19(1)(c.1)(i) and 19(2)(a.1)(i) of the former Act because he had never been "convicted" of any offence outside of Canada, as required by those subsections. Rather, he was given a one-year suspended sentence, for which he has since received an "extinguishment".
[11] The applicant submits that he tendered a criminal record certificate from Italy in support of his application for permanent residence, indicating that he has no criminal record and that since he was never "convicted" of any offence outside of Canada he cannot be criminally inadmissible.
[12] The applicant further argues that his entering of "patteggiamento" to his 1992 offences is analogous to a conditional discharge in Canada. The applicant relies on Kalicharan v. Canada (Minister of Manpower and Immigration), [1976] 2 F.C. 123 (T.D.), Re Board of School Trustees of School District No. 37 (Delta) and Vaselenak (1978), 82 D.L.R. (3d) 509 (B.C.S.C.) and section 736 of the Canadian Criminal Code.
ISSUES
[13] 1. Did the officer err in law in refusing the applicant's application because he has never been "convicted" of any offence which if committed in Canada would render him inadmissible pursuant to subsections 19(1)(c.1)(i) and 19(2)(a.1)(i) of the former Act?
2. If the applicant was in fact "convicted" of offences in Italy, does his "extinguishment" of 1999 deem that such "conviction" never occurred for the purposes of the former Act?
ANALYSIS
[14] This judicial review application involves subsections 19(1)(c.1)(i) and 19(2)(a.1)(i) of the former Act. These provisions read as follows:
| 19. (1) No person shall be granted admission who is a member of any of the following classes:
...
(c.1) persons who there are reasonable grounds to believe
(i) have been convicted outside Canada of an offence that, if committed in Canada, would constitute an offence that may be punishable under any Act of Parliament by a maximum term of imprisonment of ten years or more, or
...
except persons who have satisfied the Minister that they have rehabilitated themselves and that at least five years have elapsed since the expiration of any sentence imposed for the offence or since the commission of the act or omission, as the case may be;
19 (2) No immigrant and, except as provided in subsection (3), no visitor shall be granted admission if the immigrant or visitor is a member of any of the following classes:
...
(a.1) persons who there are reasonable grounds to believe
(i) have been convicted outside Canada of an offence that, if committed in Canada, would constitute an offence that may be punishable by way of indictment under any Act of Parliament by a maximum term of imprisonment of less than ten years, or
...
except persons who have satisfied the Minister that they have rehabilitated themselves and that at least five years have elapsed since the expiration of any sentence imposed for the offence or since the commission of the act or omission, as the case may be;
|
|
19. (1) Les personnes suivantes appartiennent à une catégorie non admissible :
_..._
c.1) celles dont il y a des motifs raisonnables de croire qu'elles ont, à l'étranger :
(i) soit été déclarées coupables d'une infraction qui, si elle était commise au Canada, constituerait une infraction qui pourrait être punissable, aux termes d'une loi fédérale, d'un emprisonnement maximal égal ou supérieur à dix ans, sauf si elles peuvent justifier auprès du ministre de leur réadaptation et du fait qu'au moins cinq ans se sont écoulés depuis l'expiration de toute peine leur ayant été infligée pour l'infraction,
_..._
19 (2) Appartiennent à une catégorie non admissible les immigrants et, sous réserve du paragraphe (3), les visiteurs qui :
_..._
a.1) sont des personnes dont il y a des motifs raisonnables de croire qu'elles ont, à l'étranger :
(i) soit été déclarées coupables d'une infraction qui, si elle était commise au Canada, constituerait une infraction qui pourrait être punissable, aux termes d'une loi fédérale, par mise en accusation, d'un emprisonnement maximal de moins de dix ans, sauf si elles peuvent justifier auprès du ministre de leur réadaptation et du fait qu'au moins cinq ans se sont écoulés depuis l'expiration de toute peine leur ayant été infligée pour l'infraction,
_..._
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Standard of Review
[15] Applying the pragmatic and functional approach, as set out in Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226 and Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, I find that the appropriate standard of review of the decision in this case is reasonableness simpliciter. First, the decision under review is a final one, but also to be considered is that under the former Act, the applicant could seek judicial review of this decision without requiring leave of the court: s. 82.1(2) of the former Act.
[16] Secondly, the decision-maker in this case, an overseas immigration officer, was required to analyse whether the applicant had been "convicted" in Italy, as that term is defined in the former Act, whether his "extinguishment" had the effect of removing his conviction from his Italian record and if it did, whether this pardon should be recognized and applied for the purposes of the admissibility provisions under the former Act. This is not an area related to the core of her expertise, namely the assessment of independent applicants in relation to their occupational experience and likelihood of successful establishment in Canada, but rather an area where the court can be viewed as being in as good a position to evaluate the nature of this alleged pardon based on the evidence placed before the officer.
[17] Third, the purpose of the former Act, in relation to the applicant's application, was to facilitate and regulate the immigration of skilled workers to Canada, as set out in subsection 3(e) of the former Act. The function of subsections 19(1)(c.1)(i) and 19(2)(a.1)(i), viewed in line with subsection 3(i) of the former Act, was to ensure that those who were admitted to Canada as permanent residents or visitors did not pose a danger to the Canadian public. Moreover, the provisions instruct the decision-maker that they cannot find a person inadmissible unless there are "reasonable grounds to believe" that the applicant had been convicted outside of Canada for an equivalent offence, that is one which could be punished in Canada for a term of imprisonment of at least 10 years.
[18] Finally, the nature of the problem, involves the statutory interpretation of the meaning of "convicted", including the application of established jurisprudence, and then comparison of such legal interpretation to factual findings in relation to a foreign law. In Saini, supra, at paragraph 26, the Federal Court of Appeal held that findings related to foreign laws are findings of fact. This indicates that questions of mixed fact and law are raised in the officer's decision. These factors lead me to conclude that the standard of reasonableness simpliciter should apply in reviewing this decision.
1. Applicant "convicted" outside of Canada
[19] Two issues are raised in this application for judicial review. First, whether the disposition and sentence rendered by the Italian court in relation to the applicant's 1992 offences amounts to him having been "convicted" outside of Canada and secondly, if the applicant was in fact "convicted", whether his pardon of 1999 deems that such "conviction" never occurred. The officer's assignment of equivalent offences under the Canadian Criminal Code has not been challenged in this application for judicial review.
[20] In my view, in regards to the first issue, the officer's decision to determine the applicant inadmissible pursuant to the above subsections of the former Act was not unreasonable, as the applicant was properly regarded as "convicted" within the meaning of the former Act. The information on the tribunal record, including the independent legal opinion obtained by the officer prior to making her decision, indicates that the sentence imposed on the applicant can be seen as equivalent to a "conviction" under Canadian law.
[21] My analysis of this issue has been somewhat hampered by two factors. One is that due to a misunderstanding as to whether this application would proceed, the respondent did not file a memorandum of argument and I have not therefore had the benefit of considered submissions from the respondent. The second is that a considerable portion of the applicant's evidence submitted on this judicial review appears to have formed part of his submissions put before a delegate of the Minister, in his request for rehabilitation. These submissions are dated August 23, 2000 and were sent to the CIC National Headquarters in Ottawa. As noted, a judicial review of that decision was not granted leave, due to the fact that the applicant failed to perfect his application. This evidence is not on the certified tribunal record before this Court, and in my view, was not before the officer whose decision is currently being challenged. Accordingly, I could not rely upon it in reviewing the reasonableness of the officer's conclusions.
[22] In my view, the Italian suspended sentence resulting from the"patteggiamento" process was properly found to be equivalent to a "conviction" in Canada, as that word was understood in the former Act. While the evidence before the officer was that this process did not involve the applicant ever admitting guilt or responsibility for the offences, and he did not formally plead "guilty" as we understand that term, he used this quasi-plea bargain procedure to avoid being tried for these offences and waived his right to assert a defence.
[23] In Canada (Minister of Employment and Immigration) v. Burgon, [1991] 3 F.C. 44 (C.A.), Justice Mahoney, in reasons concurring in the result with the majority on this issue, stated as follows at page 50:
...Yet Parliament has made clear that it is the Canadian, not the foreign, standard of the seriousness of crimes, as measured in terms of potential length of sentence, that governs admissibility to Canada. The policy basis for exclusion under paragraph 19(1)(c) must surely be the perceived gravity, from a Canadian point of view, of the offence the person has been found to have committed and not the actual consequence of that finding as determined under foreign domestic law. ...
This passage from Burgon, supra, was cited with approval by the Federal Court of Appeal in Canada (Minister of Citizenship and Immigration) v. Saini, [2002] 1 F.C. 200 (C.A.) at 215.
[24] Further, at page 51 of Burgon, supra, Justice Mahoney stated:
In my respectful opinion, "convicted", as used in paragraph 19(1)(c) of the Immigration Act, was intended by Parliament to mean "found guilty", after a plea of guilty or otherwise....
[Emphasis added]
[25] I am satisfied that in the context of proceedings before an investigating magistrate in the Italian court, the Applicant's decision to agree to the imposition of sentence for the offences he was facing amounted to an implied plea of guilty. The decision by the investigating magistrate to accept the parties' agreement and to impose sentence amounted to a "conviction" within the meaning of the former Act. The officer's decision in this regard is not, therefore, unreasonable.
2. Effect of Italian "extinguishment" on conviction
[26] In relation to the second issue, the older decisions, dated in the 1970s, cited by the applicant have been overtaken by more recent and relevant jurisprudence of this court on the issue of the analysis of foreign pardons for the purposes of section 19(1) of the former Act. Therefore, I will not deal with the two decisions cited by the applicant, preferring instead to deal with Saini, supra, and Burgon, supra.
[27] In Saini, supra, the Federal Court of Appeal stated as follows about the recognition of foreign pardons for the purposes of the former Act, at pages 215-216:
Thus, it can be seen that the Burgon decision did not decide that foreign law supercedes Canadian immigration law. Canadian authorities are not required to attorn to the laws and policies of other lands in determining whether a person has been "convicted" for the purposes of the Immigration Act. No general principle of absolute recognition of foreign pardons is established by Burgon, ... However, in assessing whether persons who have been convicted abroad but later pardoned ought to be inadmissible under subparagraph 19(1)(c.1)(i), it is open to our courts to consider the effect of foreign laws in appropriate circumstances.
Moreover, there is nothing in the post-Burgon jurisprudence that stands for the principle advanced on behalf of the respondent, that is, a foreign pardon is binding on Canadian courts if there is some similarity between our legal system and our law and a foreign legal system and its laws.
[28] This decision makes it clear that there is no automatic or absolute right of an individual applying to Canada to have their foreign pardon recognized and applied as Canadian pardons are applied, for the purposes of Canadian immigration law. The Court in Saini, supra, at page 218 summarized the jurisprudence since Burgon, supra, as requiring first, that an applicant demonstrate the effect of the foreign pardon in the country where it is granted as having the effect of eliminating the negative consequences of the conviction in that foreign country. If the answer to this question is positive, then the next, more complex issue requires that an applicant establish three elements in order for the foreign pardon to be recognized and treated as a Canadian pardon, for the purposes of Canadian immigration law:
(1) the foreign legal system as a whole must be similar to that of Canada;
(2) the aim, content and effect of the specific foreign law must be similar to Canadian law; and
(3) there must be no valid reason not to recognize the effect of the foreign law.
[29] In my opinion, the officer erred in analysing this issue, as she failed to provide any reason as to how the legal opinion she received, stating that the applicant's conviction was not erased for all legal purposes, could be reconciled with the certificates on record from the Solicitor General's Office and the Court in the region of Reggio Calabria stating that the applicant had no record. The officer was entitled to weigh all the evidence before her, however, her notes do not demonstrate that she considered the applicant's certificates indicating a clear record in her analysis of the effect of the applicant's extinguishment.
[30] The officer concluded that she was not satisfied that the applicant's "extinguishment" had the effect of removing his conviction from his record, pursuant to Italian law. Not being satisfied of this, she was not required to embark on the remainder of the analysis, as set out in Burgon, supra, and the subsequent jurisprudence that applied the principles first developed in that case, in determining whether a foreign pardon was to be treated as a Canadian pardon for the purposes of Canadian immigration law.
[31] At page 976 of the tribunal record, the Computer Assisted Immigration Processing System ("CAIPS") notes, dated June 4, 1999, written by the officer, state, in part, as follows:
SECOND PHONE CALL WAS FROM SUBJ'S LAWYER IN ITALY MR. ABBATE WHO ADVISED ME OF DOCS HE WAS FORWARDING AND TO ADVISE THAT SUBJ HAD APPLIED TO THE ITALIAN GOVT TO HAVE CHARGES AND RECORDS QUOTE EXTINGUISHED UNQUOTE. I ADVISED LAWYER THAT I WOULD REVIEW THE DOCUMENTS UPON RECEIPT, AND FURTHER EXPLAINED THE CDN CONCEPTS AND UNDERSTANDING OF PARDONS. ...
[32] The officer proceeded to obtain an independent legal opinion from an Italian lawyer as to the effect and nature of the applicant's "extinguishment". She made such request by fax dated June 21, 1999, stating that "Mr. Sicuro has commented that this document [the extinguishment] is a pardon and permanently erases his previous convictions as if they had never occurred".
[33] The lawyer responded with the following legal opinion, dated June 25, 1999:
This is in reply to your fax of June 21, 1999 attaching a certificate of the Tribunale of Reggio Calabria stating that the criminal offence committed by Mr. Sicuro is now time barred. The extinction of the crime derives from Mr. Sicuro having committed no further criminal offences during the five-year period following the judgment of 1992 (article 157 § 4 of the Penal Code).
We would like to point out that the original criminal offence stands for all legal purposes even after the extinction period. In other words the conviction, given under the 1992 sentence, which was suspended has been waved by the State in the presence of Mr. Sicuro's behaviour according to the rules.
It may be concluded therefore that the extinction of the criminal offence does not annul the fact that a criminal offence has been committed but only causes the conviction (which was suspended) not to be executed following the five year period of fair behaviour.
[34] This opinion provides a contrasting view to the one provided by the applicant's lawyer, that is that the "extinguishment" only caused his suspended prison sentence not to be executed, given that the applicant had demonstrated a five-year term of good behaviour. However, such opinion is apparently in contradiction to the certificates tendered by the applicant, from the Solicitor General's Office of Reggio Calabria in 1997 and 1998 stating that it has no record of the applicant, and from the Attorney General's Office of Reggio Calabria, dated August 14, 1999, stating that a search of judicial records resulted in no record of the applicant. There were also certificates that there were no pending charges before the Reggio Calabria Court, however, these do not relate to the existence or otherwise of a past criminal record.
[35] The officer relied exclusively on this independent legal opinion in determining that the "extinguishment" did not have the effect of removing the conviction from his record, for all legal purposes. As she wrote in the CAIPS notes, dated July 12, 1999, at page 977 of the tribunal record:
ADDITIONAL INFORMATION FROM SUBJ'S ITALIAN LAWYER RCVD AND REVIEWED TOGETHER WITH LEGAL OPINION FROM ROME CDN EMBASSY LAWYER.
APPEARS APPLICANT APPLIED AND OBTAINED FOR [sic] EXTINCTION OF HIS CRIMES IN ITALY. EXTINCTION DERIVES FROM FACT THAT SUBJ COMMITTED NO FURTHER OFFENCES DURING THE FIVE YR PERIOD WHICH FOLLOWED JUDGEMENT OF 1992. THE ORIGINAL CRIMINAL OFFENCES STAND FOR ALL LEGAL PURPOSES EVEN AFTER THE EXTINCTION PERIOD.
[36] In light of this evidence on the record, I am persuaded that the officer ignored evidence before her in coming to her conclusion that the she had "reasonable grounds to believe" that the applicant had been "convicted" outside Canada. Nowhere in her CAIPS notes is there any attempt to determine the meaning of the above-noted certificates presented by the applicant or to obtain clarification as to why such certificates appear to contradict the independent legal opinion of June 25, 1999. In Chiau v. Canada (Minister of Citizenship and Immigration), [1998] 2 F.C. 642 (T.D.), the Court said at paragraph 27:
The standard of proof required to establish "reasonable grounds" is more than a flimsy suspicion, but less than the civil test of balance of probabilities. See Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306 (C.A.); Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433 (C.A.); and Al Yamani v. Canada (Solicitor General), [1996] 1 F.C. 174 (T.D.). And, of course, a much lower threshold than the criminal standard of "beyond a reasonable doubt". It is a bona fide belief in a serious possibility based on credible evidence.
[Emphasis added]
This definition of "reasonable grounds" was affirmed by the Federal Court of Appeal in Chiau v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 297 (C.A.).
[37] In my view, the officer's notes do not indicate a "bona fide belief in a serious possibility based on credible evidence" that the applicant was inadmissible due to his criminal conviction in Italy, given that the applicant had presented evidence that appears to contradict her rationale for determining that his "extinguishment" did not annul his criminal record for all legal purposes. In this case, the applicant had submitted evidence that ran counter to the independent legal opinion. The officer's notes do not indicate that she balanced such evidence against the legal opinion.
Therefore, the officer's decision was not reasonable and this application for judicial review will be allowed.
[38] The applicant submitted two questions for certification relating to the effect of extinguishment of offences under the Italian Penal Code. In my view, both are specific to the facts of this case and therefore cannot be viewed as being of "general importance", as required by section 74(d) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27
ORDER
THIS COURT ORDERS that this application for judicial review is allowed, the officer's decision dated December 12, 2001 is set aside and a different officer shall reconsider the application for permanent residence, in accordance with these reasons. No question is certified.
"Richard G. Mosley"
F.C.J.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-695-02
STYLE OF CAUSE: FORTUNATO SICURO
AND
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: February 26, 2004
REASONS FOR ORDER
AND ORDER BY: The Honourable Mr. Justice Mosley
DATED: March 25, 2004
APPEARANCES:
Irwin H. Sherman FOR THE APPLICANT
A. Leena Jaakimainen FOR THE RESPONDENT
SOLICITORS OF RECORD:
IRWIN H. SHERMAN
Martinello & Associates
Don Mills, Ontario FOR THE APPLICANT
MORRIS ROSENBERG
Deputy Attorney General of Canada
Toronto, Ontario FOR THE RESPONDENT
See for example: Smith v. Canada (Minister of Citizenship and Immigration), [1998] 3 F.C. 144 (T.D.), Lui v. Canada (Minister of Citizenship and Immigration) (1997), 134 F.T.R. 308, Barnett v. Canada (Minister of Citizenship and Immigration) (1996), 109 F.T.R. 154.
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