Docket: IMM-4226-11
Citation: 2011 FC 1510
Ottawa, Ontario, December 22, 2011
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
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RU WANG
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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]
Ru
Wang’s Canadian wife’s application to sponsor him was put on hold pending the
determination of whether there were reasonable grounds to believe that he was
inadmissible to Canada under paragraph 36(1)(b) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 [IRPA]. The Immigration
Appeal Division found that Mr. Wang was inadmissible as he had been convicted
of an offence outside Canada that, if committed in Canada, would
constitute an offence punishable by a maximum term of imprisonment of at least 10
years.
[2]
Mr.
Wang now seeks judicial review of the Board’s decision, asserting that the
Board erred in its equivalency analysis. For the reasons that follow, I have
concluded that the Board did not err as alleged. As a consequence, the
application for judicial review will be dismissed.
Background
[3]
Mr.
Wang is a citizen of China, although he lived for some time in the United
States.
He married a Canadian citizen on December 19, 2006, and the couple has one
American-born son.
[4]
On
August 30, 2000, Mr. Wang was arrested in New York City and was
charged with gang assault in the first degree and assault in the first degree.
He subsequently pled guilty to assault in the second degree pursuant to Article
120.5 of the New York Penal Code [NYPC]. He was sentenced by the
Supreme Court of New York to 10 months imprisonment. This sentence was
subsequently reduced to eight months.
[5]
Mr.
Wang came to Canada on August
26, 2009, and filed a claim for refugee protection. He has since withdrawn his
refugee claim and applied for permanent residence as a member of the family
class.
[6]
On
May 14, 2010, a report was issued under subsection 44(1) of IRPA
alleging that Mr. Wang was inadmissible under paragraph 36(1)(b) of IRPA
for having committed an offence in the United States that, if committed in
Canada, would be equivalent to an offence under subsection 267(b) of the Criminal
Code of Canada, R.S.C., 1985, c. C-46
[Criminal Code], namely assault causing bodily harm.
[7]
The
question of Mr. Wang’s admissibility was initially referred to the Immigration
Division for determination. In a decision dated September 15, 2010, the
Immigration Division declared that Mr. Wang was not a person described in
paragraph 36(1)(b) of IRPA. The Immigration Division determined that
article 120.5(1) of the NYPC was not equivalent to section 267 of the Criminal
Code, and that section 265 of the Code was the equivalent Canadian
offence. Section 265 creates the offence of simple assault.
[8]
On
appeal, the Immigration Appeal Division found Mr. Wang to be inadmissible to Canada pursuant to
paragraph 36(1)(b) of IRPA. Applying, amongst other things, the test
for aiding and abetting set out in section 21 of the Criminal Code, the
Board found that a conviction under article 120.5(1) of the NYPC was
equivalent to offences described under sections 267, 268 and 269 of the Criminal
Code of Canada.
Standard of Review
[9]
Although
Mr. Wang raised an issue of procedural fairness in his memorandum of fact and
law, that issue was not pursued at the hearing. Consequently, the only matter
in issue is the Board’s equivalency finding.
[10]
Findings
of equivalency are factual determinations which attract deference and are to be
reviewed on the reasonableness standard: Abid v. Canada (Minister of
Citizenship and Immigration), 2011 FC 164, 384 F.T.R. 74 at para. 11.
[11]
In
reviewing a decision against the reasonableness standard, the Court must
consider the justification, transparency and intelligibility of the
decision-making process, and whether the decision falls within a range of
possible acceptable outcomes which are defensible in light of the facts and the
law: see Dunsmuir v. New
Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190 at para. 47, and Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at para. 59.
Statutory Framework
[12]
Mr.
Wang was found to be inadmissible to Canada under paragraph
36(1)(b) of IRPA which provides that:
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36. (1) A permanent resident or
a foreign national is inadmissible on grounds of serious criminality for
[…]
(b)
having been convicted of an offence 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;
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36. (1) Emportent interdiction
de territoire pour grande criminalité les faits suivants
[…]
b)
être déclaré coupable, à l'extérieur du Canada, d'une infraction qui, commise
au Canada, constituerait une infraction à une loi fédérale punissable d'un
emprisonnement maximal d'au moins dix ans;
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[13]
In
accordance with section 33 of IRPA, the facts underlying admissibility
findings include facts “for which there are reasonable grounds to believe that
they have occurred”.
[14]
The
Supreme Court of Canada described the “reasonable
grounds to believe” evidentiary standard as requiring “something more
than mere suspicion, but less than the standard applicable in civil matters of
proof on the balance of probabilities”. Reasonable grounds will exist “where
there is an objective basis for the belief which is based on compelling and
credible information”: Mugesera v. Canada (Minister of
Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100 at para. 114.
Information Regarding the Offence
[15]
The
evidentiary record with respect to the events giving rise to Mr. Wang’s
conviction is sparse. We do not have a copy of the indictment, and thus do not
know what acts he was charged with having committed. Nor do we have Mr. Wang’s
plea agreement, the judgment convicting him or the reasons for imposing sentence.
[16]
According
to a police report in the file, Mr. Wang and four of his friends were sitting
on a bench when a stranger came by. The five individuals approached the victim
from behind, punched him in the head and face and shot him in the left thigh. I
do not understand there to be any claim by the Minister that Mr. Wang actually
fired the shots. In considering police report it must be recognized that it only
contains allegations, and does not necessarily reflect the facts that actually
formed the basis of Mr. Wang’s conviction.
[17]
However,
Mr. Wang’s own rehabilitation application states that while walking around in a
park with his friends, one of Mr. Wang’s friends got into an argument with a
stranger. When the argument became worse, Mr. Wang says that his friend “forced
him” to go and get a gun at the friend’s home. Mr. Wang says that he
“reluctantly” followed his friend’s order, and brought the gun back to him. The
friend then “lost control” and fired twice, hitting the victim and Mr. Wang
himself. It is noteworthy that in discussing the events giving rise to his
criminal conviction, Mr. Wang makes no mention of having struck the victim in
the head, leading to the clear inference that it was his role in the shooting that
formed the basis of the conviction.
Analysis
[18]
Mr.
Wang’s first argument is that although it had been established that he had been
convicted of assault in the second degree contrary to Article 120.5 of the NYPC,
it was not established under which of the nine subsections of Article 120.5 he
had been convicted.
[19]
The
Board’s finding that Mr. Wang had been convicted of an offence under Article
120.5(1) of the NYPC was reasonable. The Certificate of Disposition
Indictment issued by the Supreme Court of the State of New York makes it
quite clear that Mr. Wang’s conviction of assault was entered under Article
120.5(1) of the NYPC. This subsection provides that a person is guilty
of assault when the person “with intent to cause serious physical injury to
another person … causes injury to such person or to a third person”.
[20]
The
parties agree that in Hill v. Canada (Minister of
Employment and Immigration) (1987), 1 Imm. L.R. (2d) 1, 73 N.R. 315 [Hill],
the Federal Court of Appeal determined that equivalency can be determined in
one of three ways.
[21]
The
first is “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”.
[22]
The
second way that equivalency can be established is “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”. Finally, equivalency can be established by a
combination of the first two tests: all quotes from Hill, above at para.
16.
[23]
In
this case, the Board appears to have applied a combination of the first two Hill
tests, concluding that both the New York and the Canadian
statutes require intent or knowledge, that the accused be a party to the
offence, and that injury be caused to the victim.
[24]
The
Board weighed the evidence before it and was satisfied that the Minister had
established reasonable grounds to believe that Mr. Wang had committed acts
amounting to aiding and abetting an assault causing bodily harm. In my view,
this was a conclusion that was reasonably open to the Board on the record
before it and does not fall outside the range of reasonable defensible outcomes
on the facts and the law.
[25]
Based
upon Mr. Wang’s own admissions, the Board found that while involved in a
five-on-one altercation, Mr. Wang had retrieved a firearm at the behest of a
co-participant, who then used the gun to shoot the victim causing injury. The
Board considered Mr. Wang’s role in the offence, and whether he could have been
deemed to be a party to the offence under Canadian law.
[26]
After
examining the evidence, including Mr. Wang’s admissions as to his role in the
shooting incident, the Board concluded that there were reasonable grounds to
believe that Mr. Wang had the requisite knowledge of the shooter’s intent to
bring him within the definition of an aider or abettor under section 21 of the Criminal
Code. This was a reasonable conclusion. If Mr. Wang did not intend to
assist in the commission of the offence, why did he go and get the gun?
[27]
While
Mr. Wang now claims that he was acting under duress, the mens rea or
mental element required under section 21 of the Criminal Code to deem a
person to be a party to an offence in which he or she was not directly involved
is not negated by duress: see R. v. Hibbert, [1995] 2 S.C.R.
973, [1995] S.C.J. No. 63 (Q.L.), at para. 39.
[28]
The
Board concluded that, based upon Mr. Wang’s own admissions, there were
reasonable grounds to believe that he had pled guilty for his active
involvement (bringing a gun to the principal actor) which he knew was to be
used in the shooting of the victim. While the events surrounding Mr. Wang’s
plea are not entirely clear, I am satisfied that there was sufficient evidence
before the Board to support its findings, having regard to the “reasonable
grounds to believe” standard applicable to factual matters under section 36 of IRPA.
[29]
Finally,
the Board’s conclusion that Article 120.5(1) of the NYPC was equivalent
to assault causing bodily harm under section 267 of the Criminal Code
was also reasonable, having regard to the essential elements of each offence.
[30]
Both
offences require the commission of an assault, as well as a mental element or
intention. As previously discussed, the Board reasonably concluded that Mr. Wang’s
conviction for assault in New York, and his admitted involvement in the
shooting, were sufficient to make him party to the offence under Canadian law,
and to satisfy the requisite mental element of the offence.
[31]
Both
the Canadian and the American offences also require the infliction of a
significant injury.
[32]
The
New
York
offence requires a “serious
physical injury”, which is defined in Article 10 of the NYPC as “physical injury
which creates a substantial risk of death, or which causes death or serious and
protracted disfigurement, protracted impairment of health or protracted loss or
impairment of the function of any bodily organ”.
[33]
The
Canadian offence requires “bodily harm”, which is defined at section 2 of
the Criminal
Code
as
“any hurt or injury to a person that interferes with the health or comfort of
the person and that is more than merely transient or trifling in nature”.
[34]
The
law does not require that offences be identical in every respect. As the
Federal Court of Appeal observed in Li v. Canada (Minister of
Citizenship and Immigration), [1996] F.C.J. No. 1060 at para. 18, what is
required is “essentially the similarity of definitions of offences”. In my view, the
definition of the degree of injury required in the two offences is sufficiently
similar as to render the offences equivalent for the purposes of a section 36
analysis. If anything, the “serious physical injury” element of the NYPC
offence is more onerous that the “bodily harm” of the Canadian offence. That
is, harm that qualifies as the “serious physical injury” for the purposes of the NYPC
offence would necessarily qualify as “bodily harm” for the purposes of section
267 of the Criminal
Code.
Conclusion
[35]
For
these reasons, the application for judicial review is dismissed.
Certification
[36]
Neither
party has suggested a question for certification, and none arises here.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1. This application
for judicial review is dismissed; and
2. No serious
question of general importance is certified.
“Anne
Mactavish”
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