Date: 20120605
Docket: IMM-7193-11
Citation: 2012 FC 674
[UNREVISED ENGLISH CERTIFIED
TRANSLATION]
Ottawa, Ontario,
June 5, 2012
PRESENT: The Honourable
Madam Justice Tremblay-Lamer
BETWEEN:
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KERVENS EDMOND
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS
FOR JUDGMENT AND JUDGMENT
[1]
This
is an application under subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 (IRPA) for judicial review of a decision of
the Immigration Division of the Immigration and Refugee Board (the panel)
determining that the applicant is inadmissible on grounds of serious
criminality under paragraph 36(1)(c) of the IRPA.
FACTS
[2]
The
applicant is a citizen of Haiti. He arrived in Canada on March 23, 2011,
and made a refugee protection claim on April 9, 2011, which has not yet
been determined.
[3]
On
July 7, 2011, the Canada Border Services Agency (CBSA) prepared a report
under subsection 44(1) of the IRPA stating that the applicant:
[translation]
… is inadmissible on grounds of serious criminality
for committing an act outside Canada that if committed in Canada would
constitute an offence under an Act of Parliament punishable by a maximum term
of imprisonment of at least 10 years.
[4]
The
CBSA alleged that a warrant for his arrest had been signed on December 3,
1999, and issued by the U.S. District Court Middle District in Tampa, Florida,
stating:
[translation]
… for failure to attend in Court to answer to
charges of conspiracy to possess, for the purpose of trafficking, and
trafficking in narcotics (cocaine), an offence that, if committed in Canada,
would constitute conspiracy to possess, for the purpose of trafficking, a
substance included in Schedule I, and trafficking in a substance included in
Schedule I of the Controlled Drugs and Substances Act, an
indictable offence punishable by imprisonment for life, as set out in
subsections 5(1) and (2) and paragraph 5(3)(a) of the Controlled
Drugs and Substances Act. The arrest warrant is still valid.
[5]
On
the date when the report was prepared, the Minister’s delegate referred the
matter to the panel.
[6]
On
October 6, 2011, the panel ordered that the applicant be removed from
Canada on grounds of serious criminality under paragraph 36(1)(c) of the
IRPA. It concluded that the applicant was a foreign national for the purpose of
the proceeding and determined that the Canadian legislation was equivalent to
the American legislation.
STANDARD OF REVIEW
[7]
The
standard of review that applies to the IRB’s decision regarding equivalency is
reasonableness (Ferguson v Canada (Minister of Citizenship and Immigration),
2005 FC 1742, [2005] FCJ 2161 (QL) and Dhanani v Canada (Minister of
Citizenship and Immigration), 2005 FC 169, [2005] FCJ 183 (QL)). The Court
will intervene only if the panel acted unreasonably in determining that the
applicant was involved in trafficking in cocaine: see section 33 of the
IRPA. The status of the provisions of the Criminal Code of Canada,
however, is a question of law to which the standard of correctness applies on
review. Questions of mixed fact and law are subject to the reasonableness
standard (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190).
Whether the panel
committed reversible error in applying paragraph 36(1)(c) of the IRPA
[8]
The
applicant submits, first, that he could not demonstrate that there was no
equivalency between the foreign law and the Canadian law because the Minister
failed to specify the provision on which he relied in concluding that the
applicant was inadmissible on grounds of serious criminality. I do not share
that view.
[9]
Subsections 5(1)
and (2) and paragraph 5(3)(a) of the Controlled Drugs and
Substances Act, SC 1996, c 19 (the Act) provide:
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(1)
No person shall traffic in a substance included in Schedule I, II, III or IV
or in any substance represented or held out by that person to be such a
substance.
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(1)
Il est interdit de faire le trafic de toute substance inscrite aux annexes I,
II, III ou IV ou de toute substance présentée ou tenue pour telle par le
trafiquant.
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(2)
No person shall, for the purpose of trafficking, possess a substance included
in Schedule I, II, III or IV.
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(2)
Il est interdit d’avoir en sa possession, en vue d’en faire le trafic, toute
substance inscrite aux annexes I, II, III ou IV.
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(3)
Every person who contravenes subsection (1) or (2)
(a) subject to
subsection (4), where the subject-matter of the offence is a substance
included in Schedule I or II, is guilty of an indictable offence and liable
to imprisonment for life;
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(3)
Quiconque contrevient aux paragraphes (1) ou (2) commet :
a) dans le cas de
substances inscrites aux annexes I ou II, mais sous réserve du paragraphe
(4), un acte criminel passible de l’emprisonnement à perpétuité;
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[10]
The
relevant passage of the report written under subsection 44(1) of the IRPA
is as follows:
[translation]
… for failure to attend in Court to answer to
charges of conspiracy to possess, for the purpose of trafficking, and
trafficking in narcotics (cocaine), an offence that, if committed in Canada,
would constitute conspiracy to possess, for the purpose of trafficking, a
substance included in Schedule I, and trafficking in a substance
included in Schedule I of the Controlled Drugs and Substances Act,
an indictable offence punishable by imprisonment for life, as set out in
subsections 5(1) and (2) and paragraph 5(3)(a) of the Controlled
Drugs and Substances Act. [Emphasis added].
[11]
It
is apparent from the Minister’s report that an applicant is inadmissible if he
commits one of the following two offences: (1) conspiracy to possess, for
the purpose of trafficking, a substance included in Schedule I; and
(2) trafficking in a substance included in Schedule I. Those offences
correspond to the offences set out in subsections 5(1) and (2) of the
Act. Because the statutory provisions on which the Minister relied were clearly
identified, the applicant cannot claim that they were not brought to his
attention.
[12]
The
applicant also submits that it could not be established, on the evidence in the
record, that he transported a bag containing narcotics. The only evidence in
the record consists of his testimony before the panel and his guilty plea. He
submits that the panel concluded that the bag contained narcotics because it
presumed that his brother was engaged in a drug-selling operation.
[13]
The
applicant also submits that the panel erred in law by finding that the act in
question constituted trafficking within the meaning of the Act.
[14]
The
respondent argues that the offence of trafficking encompasses all actions and
activities that contribute to making narcotics available to a person other than
the trafficker. On that point, he relied on the definition of trafficking set
out in the Act.
[15]
The
respondent submits that to prove the guilt of the accused, it was sufficient to
prove that he committed the actus reus of trafficking, that he intended
to commit it, and that he was aware of the type of substance. I am of the same
opinion.
[16]
First,
it is important to note that in Hill v Canada (Minister of Employment and
Immigration), 73 NR 315, [1987] FCJ 47 (QL) (Hill), the Federal
Court of Appeal gave three methods for determining equivalency between a
foreign law and a Canadian law:
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.
[17]
Those
methods of determining equivalency were confirmed by the Court in Li v
Canada (Minister of Citizenship and Immigration), [1997] 1 FC 235, [1996]
FCJ 1060 (QL).
[18]
In
this case, the applicant objects to the manner in which the panel applied the
second method of determining equivalency, as described in Hill, above.
As the respondent points out, the term “traffic” is defined in
subsection 2(1) of the Act and means to sell, administer, give, transfer,
transport, send or deliver a substance included in any of Schedules I
to IV of the Act, or to offer to do any of those things, otherwise than
under the authority of the regulations. A controlled substance includes “any
thing that contains or has on it a controlled substance and that is used or
intended or designed for use in producing the substance, or in introducing the
substance into a human body” (see subparagraph 2(2)(b)(ii) of the
Act). The terms “give”, “deliver” and “transfer” are understood in their
general sense and mean passing on in some way (R v Larson, 6 CCC (2d)
145, [1972] BCJ 661 (QL); R v Lauze, 17 CR (3d) 90, [1980] JQ 166 (QL); R
v Wood, 2007 ABCA 65, [2007] AJ 763; and R v Taylor (1974), 17 CCC
(2d) 36, [1974] BCJ 858 (QL)). Essentially, the offence of trafficking
encompasses any act that provides another person with access to narcotics. It
is sufficient to show that the accused committed one of those acts, that he had
the intent to commit it and that he had knowledge of the substance in issue (R
v Greyeyes, [1997] 2 S.C.R. 825 (QL)). It is also sufficient that the accused
participated in a single transaction for him to commit the offence of
trafficking, regardless of whether any words were spoken during the commission
of the act (R v Weselak, 9 CCC (2d) 193, [1972] CMAJ 1 (QL) and R v
Jordison (1957), 26 CR 267, [1957] BCJ 73 (QL)).
[19]
As
his testimony before the panel and the indictment filed against him indicate,
sometime between July 1997 and January 1998, the applicant went to the home of
his brother, who asked him to bring him a brown paper bag, which he then did.
It is clear that the act committed by the applicant constituted, at the least,
delivering within the meaning of the Act. Knowledge of the substance that the
bag contained may be established from the context in which the act was
committed. The applicant testified that he did not know what the bag contained,
but he also admitted that he strongly suspected that the bag contained cocaine.
He also knew that his brother was a drug trafficker. In the circumstances, this
was a case of wilful blindness, an accepted method in criminal law of proving
actual knowledge of the substance (R v Sandhu, 50 CCC (3d) 492, [1989]
OJ 1647 (QL)). In short, the panel was entitled to conclude that there were
reasonable grounds to believe that the applicant had committed an offence in
the United States that, if he had committed it in Canada, would constitute a
trafficking offence. Because trafficking is punishable by a sentence of
imprisonment for life in Canada, and thus is punishable by a maximum term of
imprisonment of at least 10 years, the applicant was validly determined to
be inadmissible under paragraph 36(1)(c) of the IRPA, and the panel
was justified in ordering that he be removed from Canada.
[20]
The
applicant’s final submission is that there is no evidence in the record
regarding the sentence applicable to the act between 1997 and January 1998, when
the events in question took place. The sentence associated with an offence
under section 5 of the Act is the sentence that was in force at the time
of the hearing. He relies on section 11 of the Canadian Charter of
Rights and Freedoms in saying that an accused may not be sentenced to a
punishment that is greater than the punishment at the time the act was
committed, and he must be given the benefit of a lesser punishment if the
legislation varies.
[21]
The
respondent submits that when the panel establishes equivalency between the
offence committed outside Canada and an offence under an Act of the Canadian
Parliament, it must interpret the Canadian law as it reads at the time it makes
its decision and not as it read at the time of the commission of the offence
(when the offence was committed) outside Canada. In addition, absent indication
to the contrary, concepts from another area of law should not be applied to the
IRPA (Kosley v Canada (Minister of Employment and Immigration), [1985]
FCJ 87 (QL)). Accordingly, section 11 of the Charter has no application in
this case because in immigration law, the applicant has not been charged in the
criminal law sense (Chiarelli v Canada (Minister of Employment and
Immigration), [1992] 1 S.C.R. 711 (QL) and Rudolph v Canada (Minister of
Employment and Immigration, [1992] 2 FC 653, [1992] FCJ 400 (QL) (Rudolph)).
He also noted that the legislation must be construed and the intent of
Parliament determined based on the words used, in their entire context and
according to their grammatical and ordinary sense, harmoniously with the scheme
and object of the Act and the intention of Parliament (Canada (Canadian
Human Rights Commission) v Canada (Attorney General), 2011 SCC 53, [2011] 3
SCR 471). There is nothing in paragraph 36(1)(c) that refers to the
Act of Parliament that applied at the time when the offence was committed. I am
of the same opinion.
[22]
Section 33
of the IRPA provides that the facts referred to in section 36 are to be
determined based on reasonable grounds to believe that they have occurred, are
occurring or may occur. That provision allows the Minister to consider the
occurrence of a broad range of events and facts, without restriction in time.
It cannot be concluded from the wording of that section and of the sections of
the IRPA that follow that equivalency must be determined based on the
punishment that was applicable in Canada at the time of the commission of the
offence (when the offence was committed) or based on the wording of the offence
as it read at that time. In addition, the general rule is that statutes are not
to be construed as having retrospective operation unless such a construction is
expressly or by necessary implication required by the language of the Act (Gustavson
Drilling (1964) Ltd v Canada (Minister of National Revenue), [1977] 1 SCR
271, 7 NR 401). The panel must therefore interpret the Act of Parliament, in
this case the Controlled Drugs and Substances Act, as it reads at the
time it makes its decision. Moreover, section 11 of the Charter is not
applicable in this case because for the purposes of the IRPA, the applicant has
not been charged in the criminal law sense (Rudolph, above).
[23]
For
these reasons, the application for judicial review is dismissed.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
the application for judicial review is dismissed. No
question is certified.
“Danièle
Tremblay-Lamer”
Certified
true translation
Monica
F. Chamberlain
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