Date: 19991117
Docket: IMM-255-99
Ottawa, Ontario, this 17th day of November, 1999
Present : The Honourable Mr. Justice Pinard
Between :
ABDILLAHI HAJI HUSSEIN
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
ORDER
The application for judicial review of a decision of the Adjudication Division of the Immigration and Refugee Board, rendered December 15, 1998 and determining that the applicant is subject to a conditional deportation order, is dismissed.
JUDGE
Date: 19991117
Docket: IMM-255-99
Between :
ABDILLAHI HAJI HUSSEIN
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD, J. :
[1] This is an application for judicial review of a decision of the Adjudication Division of the Immigration and Refugee Board (hereinafter the Adjudication Division) rendered December 15, 1998 and determining that the applicant is subject to a conditional deportation order.
Facts
[2] The applicant, Abdillahi Haji Hussein, is a citizen of Somalia. He was asked to attend at an inquiry of the Immigration and Refugee Board and the inquiry was completed on September 16, 1997. The decision of the inquiry was published early in 1999. At the inquiry hearing, evidence was adduced to show, and the applicant confessed, that he had been in trouble with the law while previously living in the United States. It appears that the applicant was convicted on December 2, 1985, for having played a role in ordering several banks in the United States to wire funds belonging to others to accounts set up by his sister-in-law. Specifically, the applicant admitted to having been convicted, under section 2314 of Title 18, United States Code (hereinafter Title 18), of causing the transportation of these impugned funds in interstate commerce. Indeed, all parties are agreed that the applicant, while in the United States, first, caused the transferring of hundreds of thousands of dollars electronically to the accounts of his sister-in-law, second, transported a cashier's cheque in the amount of $123,000 and third, was convicted of infringing section 2314 of Title 18. The applicant served three years of his ten-year sentence and then came to Canada.
The tribunal's decision
[3] The Adjudication Division held an inquiry to determine whether the applicant was a person described in paragraph 27(2)(a) and subparagraph 19(1)(c.1)(ii) of the Immigration Act, R.S.C. 1985, c. I-2. Paragraph 27(2)(a) provides:
| 27. (2) An immigration officer or a peace officer shall, unless the person has been arrested pursuant to subsection 103(2), forward a written report to the Deputy Minister setting out the details of any information in the possession of the immigration officer or peace officer indicating that a person in Canada, other than a Canadian citizen or permanent resident, is a person who
| (a) is a member of an inadmissible class, other than an inadmissible class described in paragraph 19(1)(h) or 19(2)(c); |
|
27. (2) L'agent d'immigration ou l'agent de la paix doit, sauf si la personne en cause a été arrêtée en vertu du paragraphe 103(2), faire un rapport écrit et circonstancié au sous-ministre de renseignements concernant une personne se trouvant au Canada autrement qu'à titre de citoyen canadien ou de résident permanent et indiquant que celle-ci, selon le cas:
| a) appartient à une catégorie non admissible, autre que celles visées aux alinéas 19(1)h) ou 19(2)c); |
|
The inadmissible class referred to in paragraph 27(2)(a) is described in subparagraph 19(1)(c.1)(ii):
| 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 |
| (ii) have committed outside Canada an act or omission that constitutes an offence under the laws of the place where the act or omission occurred and 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, |
|
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: |
| (ii) soit commis un fait - acte ou omission - qui constitue une infraction dans le pays où il a été commis et qui, s'il était commis 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 la commission du fait; |
|
[4] The Adjudication Division found reasonable grounds to believe that the applicant committed, while in the United States, acts constituting an offence under section 2314 of Title 18. Section 2314 provides:
| Whoever transports in interstate or foreign commerce any goods, wares, merchandise, securities or money, of the value of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud; or |
| Shall be fined not more than $10,000 or imprisoned not more than ten years, or both. |
[5] Based on paragraph 354(1)(b), section 355 and subsection 4(3) of the Criminal Code, the Adjudication Division found that the acts constituting an offence under section 2314 of Title 18 would also constitute an offence punishable in Canada by a maximum term of imprisonment of at least ten years. The above provisions of the Criminal Code read as follows:
| 4. (3) For the purposes of this Act,
| (a) a person has anything in possession when he has it in his personal possession or knowingly |
| (i) has it in the actual possession or custody of another person, or |
| (ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and |
| (b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them. |
354. (1) Every one commits an offence who has in his possession any property or thing or any proceeds of any property or thing knowing that all or part of the property or thing or of the proceeds was obtained by or derived directly or indirectly from
| (b) an act or omission anywhere that, if it had occurred in Canada, would have constituted an offence punishable by indictment. |
355. Every one who commits an offence under section 354
| (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years, where the subject-matter of the offence is a testamentary instrument or the value of the subject- matter of the offence exceeds five thousand dollars; or |
|
4. (3) Pour l'application de la présente loi:
| a) une personne est en possession d'une chose lorsqu'elle l'a en sa possession personnelle ou que, sciemment: |
| (i) ou bien elle l'a en la possession ou garde réelle d'une autre personne, |
| (ii) ou bien elle l'a en un lieu qui lui appartient ou non ou qu'elle occupe ou non, pour son propre usage ou avantage ou celui d'une autre personne; |
| b) lorsqu'une de deux ou plusieurs personnes, au su et avec le consentement de l'autre ou des autres, a une chose en sa garde ou possession, cette chose est censée en la garde et possession de toutes ces personnes et de chacune d'elles. |
354. (1) Commet une infraction quiconque a en sa possession un bien, une chose ou leur produit sachant que tout ou partie d'entre eux ont été obtenus ou proviennent directement ou indirectement:
| b) soit d'un acte ou d'une omission en quelque endroit que ce soit, qui aurait constitué, s'il avait eu lieu au Canada, une infraction punissable sur acte d'accusation. |
355. Quiconque commet une infraction visée à l'article 354:
| a) est coupable d'un acte criminel et passible d'un emprisonnement maximal de dix ans, si l'objet de l'infraction est un titre testamentaire ou si la valeur de l'objet de l'infraction dépasse mille dollars; |
|
Submissions
[6] Counsel for the applicant submitted that the Adjudication Division made errors of fact. Counsel also argued that section 2314 of Title 18 is much broader than, and therefore not equivalent to, paragraph 354(1)(b) of the Criminal Code. He further argues that the applicant never possessed the impugned funds within the meaning of subsection 4(3) of the Criminal Code.
Analysis
[7] To the extent that the Adjudication Division's findings of facts are concerned, they are well supported by the evidence and the applicant has totally failed to establish that the tribunal based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it (section 18.1(4)(d) of the Federal Court Act).
[8] With respect to the applicant's other arguments, the proper test to determine whether subparagraph 19(1)(c.1)(ii) of the Immigration Act applies can be found in the decision of the Federal Court of Appeal in Hill v. Minister of Employment and Immigration (1987), 73 N.R. 315. In that case, Mr. Justice Urie stated the test as follows, at page 320:
| . . .It seems to me that because of the presence of the words "would constitute an offence . . . in Canada", the equivalency can be determined in three ways: - 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. Third, by a combination of one and two. |
[9] In the case at bar, it appears that by reason of the definition of "possession" in subsection 4(3) of the Criminal Code, paragraph 354(1)(b) of the Criminal Code is broader than section 2314 of Title 18. Paragraph 354(1)(b) of the Criminal Code and section 2314 of Title 18 are equivalent in that they contain the similar essential element of constructively possessing stolen funds. Given the particular circumstances of this case, including the control of the applicant over the impugned funds through his sister-in-law and the banks, it is clear to me that the evidence was sufficient to establish that the essential ingredients of the offence in Canada had been proven in the foreign proceedings. A combination of the comparison of the precise wording in each statute and of such evidence leads to the conclusion that the provisions in question are equivalent and that the applicant is therefore caught by subparagraph 19(1)(c.1)(ii) of the Immigration Act, the offence in the United States amounting to an offence punishable under Canadian law by imprisonment for a term not exceeding ten years.
[10] Consequently, the application for judicial review is dismissed. The applicant proposed the following question for certification:
| Is the Applicant's conviction for "causing interstate transfer of funds", an offence pursuant to Article 2314, Title 18 USCA, of which the Applicant was convicted in the United States, equivalent to "possession of stolen property", which is an offence pursuant to s.354 of the Criminal Code of Canada? In particular, can a person have "possession", as the term in (sic) defined in s.4(3) of the Criminal Code of Canada, of funds in someone else's bank account, to which the person has no right of access? |
[11] I agree with counsel for the respondent that this is not a question of general importance. First, the interpretation of subsection 4(3) of the Criminal Code must be considered in the context of the application of the Immigration Act. Second, the proper test to determine whether subparagraph 19(1)(c.1)(ii) of the Immigration Act applies is clearly stated by the Federal Court of Appeal in Hill, supra. And third, counsel for the applicant admitted that he was not aware of any other case in Canada where a claimant for refugee status had been found guilty in the United States, under section 2314 of Title 18, when not in personal possession of "any goods, wares, merchandise, securities or money, of the value of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud". Under such circumstances, the proposed question does not meet the required standards of relevancy and general importance. Therefore, it will not be certified.
JUDGE
OTTAWA, ONTARIO
November 17, 1999
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