Date: 20110923
Docket: IMM-7546-10
Citation: 2011 FC 1094
[UNREVISED CERTIFIED
ENGLISH TRANSLATION]
Ottawa, Ontario, September 23, 2011
PRESENT: The Honourable
Mr. Justice Scott
BETWEEN:
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MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Applicant
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and
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HASSAN AMMAR
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
I.
Introduction
[1]
The
Minister of Citizenship and Immigration (the Minister) is asking the Court to
review the decision dated September 14, 2010, (the decision) by the
Immigration and Refugee Board of Canada, Refugee Protection Division (the
Board), which determined that Mr. Hassan Hammar (the respondent) is
not a Convention refugee or a person in need of protection under sections 96
and 97(1) of the Immigration and Refugee Protection Act (S.C. 2001, c. 27)
[IRPA] or an excluded person under section 98 of the Act.
[2]
The
Minister of Public Safety and Emergency Preparedness intervened in this refugee
protection claim. The Minister took the position that the sexual conduct charge
laid against the respondent in the United States constitutes a serious
non‑political crime committed before his arrival on Canadian soil. As a
result, the respondent is a person referred to in Article 1F(b) of
the United Nations Convention Relating to the Status of Refugees (the
Convention); therefore, he is not a Convention refugee or a person in need of
protection under section 98 of the Act.
[3]
For
the following reasons, the Court dismisses this application for judicial review.
II.
The
facts
[4]
The
respondent is a citizen of Lebanon and is 38 years old. He
had lived in the United States for a number of years when, in April 2007,
he travelled to Windsor, Ontario, and filed a refugee claim. He alleged
that he feared persecution at the hands of Lebanese Shi’ites and Hezbollah, which
prevented him from living in Lebanon or the United States.
[5]
In
November 2006, the Michigan authorities laid sexual conduct charges against him
following events that transpired in a gas station in Summit Township. The night
of the attack, the respondent waited for Ms. Klahn, a dancer at the
Odyssey Show Girls Lounge, to leave the bar. He followed her to a convenience
store. In a room at the back of the store, the respondent tried to force Ms. Klahn
to fellate him. He took hold of her with both hands, then grabbed one of her
breasts and her buttocks. He forced her to kneel in front of him, and with his
hands he repeatedly brought his victim’s head towards his crotch. He then removed
one hand and pretended to open his zipper. Finally, he seized the back of
Ms. Klahn’s pants, grabbing her buttocks as if he were trying to take her
from below and penetrate her with his fingers. Throughout the attack, the
victim refused to consent to what he was doing. She managed to escape, went to
a friend’s house and filed a complaint with the police.
[6]
On
December 11, 2006, the respondent was charged with “criminal sexual
conduct in the fourth degree”, an offence punishable by imprisonment for not
more than two years or a fine of not more than $500 or both under section 750.520e(1)
of The Michigan Penal Code, which reads as follows:
(1) A person is guilty of criminal sexual
conduct in the fourth degree if he or she engages in sexual contact with
another person and if any of the following circumstances exist:
. . .
(b) Force or coercion is used to accomplish the
sexual contact. Force or coercion includes, but is not limited to, any of the
following circumstances:
(i) When the actor overcomes the victim
through the actual application of physical force or physical violence.
(ii) When the actor coerces the victim to
submit by threatening to use force or violence on the victim, and the victim
believes that the actor has the present ability to execute that threat.
(iii) When the actor coerces the victim
to submit by threatening to retaliate in the future against the victim, or any
other person, and the victim believes that the actor has the ability to execute
that threat. As used in this subparagraph, “to retaliate” includes threats of
physical punishment, kidnapping, or extortion.
(iv) When the actor engages in the
medical treatment or examination of the victim in a manner or for purposes
which are medically recognized as unethical or unacceptable.
(v) When the actor achieves the sexual
contact through concealment or by the element of surprise.
…
(2) Criminal sexual conduct in the
fourth degree is a misdemeanour punishable by imprisonment for not more than 2
years or a fine of not more than $500.00, or both.
[Emphasis added.]
[7]
At
the conclusion of the preliminary inquiry held on March 19, 2007, the
judge of the Fourth District Court of Jackson, Michigan, committed the
respondent to trial. The hearing was scheduled for May 11 and 30, 2007. In
the meantime, the respondent sought refugee protection in Canada. Since he
was not present on the date of the trial, a warrant was issued for his arrest.
[8]
The
Minister of Public Safety and Emergency Preparedness intervened in this refugee
protection claim. He took the position that the sexual assault committed in the
United States was a serious non‑political crime committed before the
respondent arrived in Canada. Since the respondent is therefore a
person referred to in Article 1F(b) of the Convention, he is not a
Convention refugee or a person in need of protection under section 98 of
the Act. The Refugee Protection Division determined that the sexual assault
committed by the respondent was not a serious crime under Article 1F(b)
and dismissed the Minister’s arguments. It also found that the respondent was
not a Convention refugee or a person in need of protection under sections 96
and 97 of the Act.
III.
The
Act
[9]
Section 98
of the Immigration and Refugee Protection Act (S.C. 2001, c. 27) reads
as follows:
98. A
person referred to in section E or F of Article 1 of the Refugee Convention is
not a Convention refugee or a person in need of protection.
[10]
Article 1F(b)
of the United Nations Convention Relating to the Status of Refugees (the
Convention) reads as follows:
F. The
provisions of this Convention shall not apply to any person with respect to
whom there are serious reasons for considering that:
. . .
(b) he has
committed a serious non‑political crime outside the country of refuge
prior to his admission to that country as a refugee;
IV.
Issue
and standard of review
[11]
This
proceeding raises only one issue. Did the Board err in law when it found that
the sexual assault committed by the respondent was not a “serious” crime under Article 1F(b)
of the Convention?
[12]
Since
a question of law is involved, the appropriate standard of review in this case
is correctness (Moreno v. Canada (Minister of Employment and Immigration), [1994] 1
FC 298; Pushpanathan v. Canada (Minister of
Citizenship and Immigration), [1998] 1 S.C.R. 982; Dunsmuir v. New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 at paragraphs 50, 60 [Dunsmuir] and Canada
(Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12,
[2009] 1 S.C.R. 339 at paragraph 44) while the application of Article 1F(b)
of the Convention to the facts of the case is assessed against the reasonableness
standard (Dunsmuir, above, and Ivanov v. Canada (Minister of
Citizenship and Immigration), 2004 FC 1210 at paragraph 6).
A.
Position
of the Minister
[13]
The
Minister maintains that the Board erred by not finding that there were serious
reasons for considering that the respondent had committed a serious crime.
[14]
In
the Minister’s view, the Court should allow the application for judicial review
because the decision has a determinative effect on whether the respondent
remains in Canada. The Court
should therefore rule on the merits of the application for judicial review and
decide whether the respondent is a person referred to in Article 1F(b).
[15]
The
Minister also maintains that the applicable burden of proof under Article 1F(b)
is a degree of proof that goes beyond mere suspicion but falls below the balance
of probabilities standard in civil matters. There must be an objective basis
for the Board’s finding that 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 paragraph 114.
[16]
The
Minister points out that, for the purposes of Article 1F(b), with
the exception of trumped‑up allegations, a valid warrant issued by a
country, whether considered in isolation or with other evidence, fully
satisfies the “serious reasons for considering” requirement. In this regard,
the Minister relies on Betancour v. Canada (Minister of
Citizenship and Immigration), 2009 FC 767 at paragraphs 20, 21 and
52.
[17]
Moreover,
the Minister notes that the accused was committed to trial following a
preliminary inquiry in the United States. This committal
establishes that the accused is probably guilty.
[18]
In
paragraph 44 of Jayasekara v. Canada (Minister of
Citizenship and Immigration), 2008 FCA 404 [Jayasekara], the Federal
Court of Appeal sets out the seriousness factors that must be examined in
applying Article 1F(b) of the Convention. With respect to the
seriousness of a crime, the following factors must be evaluated: the elements
of the crime, the mode of prosecution, the penalty prescribed, the facts and
the mitigating and aggravating circumstances underlying the conviction.
[19]
The
Minister submits that the Board erred in its analysis of the seriousness of the
crime because it did not correctly apply the factors identified in Jayasekara,
above.
[20]
In
its decision, the Board noted at the outset that the charge against the
respondent in the United States is comparable to section 271 of the Criminal
Code of Canada (R.S.C. 1985,
c. C-46), sexual assault, but that this crime is not serious enough to justify
excluding the respondent from protection against persecution and torture. The
Board took judicial notice of the fact that summary conviction offences are not
serious, and they therefore limit serious crimes to offences punishable by a
maximum of 10 years in prison. The Minister believes that this analysis is flawed.
[21]
The
Minister also criticizes the Board for making an erroneous finding. In support,
he cites authors Guy S. Goodwill‑Gill and Jane McAdam, The
Refugee in International Law, 3rd edition, Oxford, Oxford
University Press, 2007, page 177, who maintain that serious crimes are those
against physical integrity, life and liberty. International law assumes the
seriousness of rape and, in some circumstances, of assault. The state of the
law in Canada reflects
this view because in Canadian criminal law the offence of rape is included in
the more global offence of sexual assault. In Canada, sexual
assault consists of assault committed in circumstances of a sexual nature in a manner
that violates the victim’s sexual integrity. The sexual offence is therefore,
according to the Minister, a hybrid offence punishable, depending on the mode
of prosecution chosen, by a maximum term of imprisonment of 10 years or 18
months. The maximum term of imprisonment imposed following a prosecution by way
of summary conviction, although much shorter, is still three times longer than
a sentence for other offences prosecuted in the same way. In the Minister’s
view, this difference indicates the degree of seriousness of this offence in
Canadian criminal law because Parliament treated it this way.
B. Position of
the respondent
[22]
The
respondent replies that the Board’s findings are well founded and supported by
the evidence in the record.
[23]
The
respondent points out the wording of subsection 750.520e(2) of The Michigan
Penal Code, the relevant parts of which read as follows:
750.520e. Criminal sexual conduct in the
fourth degree; misdemeanor.
. . .
(2) Criminal sexual conduct in the fourth
degree is a misdemeanour punishable by imprisonment for not more than 2 years,
or, by a fine of not more than $ 500.00 or both.
[24]
In
his view, this is therefore a penal offence, which leads to the conclusion that
we are not dealing with a criminal act but with an act sanctioned by a penal
offence. The respondent also points out that the Minister may not rely on the alleged
victim’s testimony to dissect the circumstances of the sexual contact without the
benefit of concrete evidence on the alleged facts.
[25]
Finally,
the respondent relies on Zrig v. Canada (Minister of
Citizenship and Immigration), 2003 FCA 178, [2003] 3 FC 761, and specifically
on Justice Décary’s statement, which requires that three conditions be met.
There must be a crime; the crime must be a non‑political one, and the
crime must be serious. The respondent says that the last branch of the test has
not been satisfied in this case.
V. Analysis
[26]
The
proceeding raises only one issue. Did the Board correctly apply the principles
laid down by the Federal Court of Appeal in Jayasekara, above, at paragraph 44:
[44] I believe there is a consensus
among the courts that the interpretation of the exclusion clause in Article 1F(b)
of the Convention, as regards the seriousness of a crime, requires an
evaluation of the elements of the crime, the mode of prosecution, the penalty
prescribed, the facts and the mitigating and aggravating circumstances
underlying the conviction . . .
[27]
A
careful review of the decision, particularly of paragraph 15, leads us to find
that the panel took into account the factors set out by the Court of Appeal.
The panel wrote:
. . . I also carefully read
what the Minister’s representative was referring to, namely, that there were
grounds for an arrest, a charge was laid, and a trial was to begin but was not
finished because the claimant left the United States. I am aware that an arrest
warrant has been issued for the claimant, but when I look at the elements of
the crime, even in light of the victim’s statement—yes, the claimant
demonstrated the behaviour of a sex offender (his actions could undoubtedly
fall within the definition in section 271 of the Canadian Criminal Code)—I
am not ready to conclude that it is a serious crime for the following reason.
To be considered sexual assault in Canada,
it is sufficient that there be touching; the contact must be sexual in nature,
and there must be a lack of consent from the victim. The fact remains that in Canada, it can be prosecuted as an
indictable offence or as a summary conviction offence. If the approach chosen
is prosecution as an indictable offence, the person becomes liable to a maximum
of 10 years in prison. If the approach chosen is prosecution as a summary
conviction offence, the person may be liable to a maximum of 18 months in
prison. It is clear that in prosecution by summary proceeding, according to the
case law, the case did not involve a serious crime.
[28]
The
decision considered the factors set out by the Court of Appeal. The panel
evaluated the elements of the crime, the mode of prosecution, the penalty
prescribed, the facts and the mitigating circumstances. In paragraph 16, it
addressed the indictment in Michigan, and in paragraph 17 it
examined the facts, i.e., the lack of a weapon but the use of force. This approach
appears to us to be completely consistent with the Federal Court of Appeal’s
teachings. Furthermore, it is the methodology that the Federal Court applied in
Canada (Minister of
Citizenship and Immigration) v. Diaz, 2011 FC 738 at paragraph
14.
[29]
Moreover,
the Court’s reasoning was similar in Canada (Minister of
Citizenship and Immigration) v. Lopez Velasco, 2011 FC 627 [Lopez
Velasco]. At paragraph 46, the judge stated:
[46] Nor do I consider that the RPD
erred in canvassing the range of penalty in section 151of the Criminal
Code, given that Justice Letourneau also spoke of keeping in mind the
perspective of the receiving state. The RPD was entitled to consider the
hybrid nature of section 151of the Criminal Code. In so doing, the
RPD focused on the Court’s qualification ‘if there is substantial
difference between the penalty prescribed for a summary conviction offence and
that provided for an indictable offence’.
[30]
The
Minister submits that the panel should have come to a completely different
conclusion. The Court cannot concur with this position. The panel examined the
facts correctly. It took into consideration the factors set out by the Court of
Appeal at paragraph 44 of Jayasekara, above, and the statement in paragraph
46 that, in the case of hybrid offences, the choice of the mode of prosecution
becomes relevant in evaluating the seriousness of the crime if there is
substantial difference between the penalty prescribed for a summary conviction
offence and that provided for an indictable offence. In this case, as the panel
noted, this difference is 18 months versus 10 years.
[31]
The
Minister maintains that the panel should have considered each element of the
crime as well as how such offences are dealt with in other countries. The Court
notes, as the Federal Court of Appeal wrote, that these are factors that can be
rebutted, as they were in this case.
VI. Question for
certification
[32]
The
Minister (the applicant) is asking the Court to certify the following question
under paragraph 74(d) of the Act:
·
In
determining the seriousness of a crime for the purposes of applying Article 1F(b)
of the United Nations Convention Relating to the Status of Refugees [the
Convention], where the identical, equivalent or similar crime in Canada is a
hybrid offence punishable by summary conviction or by indictment, can the decision‑maker
properly assume that the refugee claimant would have been prosecuted summarily
in Canada for committing the crime in question?
Applicant’s arguments
[33]
The
Minister states that the panel did not consider the fact that in Canada the offence
of sexual assault is punishable by a maximum term of imprisonment of at least
10 years. In the applicant’s view, this is a relevant factor in determining the
seriousness of the crime as the Federal Court of Appeal found in Jayasekara above,
at paragraph 55.
[34]
Again,
according to the Minister, the panel in this case relied solely on the mode of
prosecution chosen in Michigan and on the corresponding mode of prosecution in Canada. The
Minister states that the offences in Canada must be considered as
punishable by way of indictment unless the prosecutor is deemed to have elected
to proceed by summary conviction. He cites three cases in support of his
position: R. v. Dudley, 2009 SCC 58, [2009] 3 S.C.R. 570 at
paragraphs 18 and 21; Ahmed v. Canada (Minister of Citizenship
and Immigration), 2009 FC 672, [2010] 1 F.C.R. 255 at paragraphs 28‑34
and 36‑37 [Ahmed]; and Trinidad and Tobago (Republic of) v.
Davis, 2008 ABCA 275, [2008] A.J. No. 829 at paragraphs 14, 17 and 19 [Davis].
[35]
The
Minister questions whether a maximum sentence of ten years could have been
imposed on the respondent had the crime been committed in Canada. He cites
the Davis decision of
the Alberta Court of Appeal. Paragraph 19 of this judgment states:
. . . The requirement that the
Attorney General provide evidence as to whether the Crown [in Canada] would elect to prosecute a
hybrid offence by summary conviction or indictment is a task that borders on
the impossible. Prosecutorial discretion is not decided on a hypothetical basis
. . .
[36]
In
his letter of August 22, 2011, the Minister wrote that [translation] “the panel could not
properly speculate on how the Crown would have prosecuted Mr. Ammar [the
respondent] had he committed his crime in Canada. The
Immigration and Refugee Board [IRB] should therefore have found that the
comparable offence in Canada retained its character
as an offence punishable by indictment” (page 4).
[37]
With
respect to the criteria for certifying a question, the Minister maintains that
the requirements have been met in this case. He states that the proposed
question transcends the interests of the immediate parties to the litigation
and contemplates a legal issue of general application. He is asking, for the benefit
of IRB panel members, Federal Court judges and counsel for the parties, that
the Federal Court of Appeal rule on whether the Alberta Court of Appeal
decision in Davis applies by analogy.
[38]
For
the reasons stated above, the applicant believes that the IRB could not
properly assume that the respondent would have been prosecuted summarily in Canada. In his
view, this error is determinative in this case, and the response to the
proposed question would be determinative of an appeal.
Respondent’s arguments
[39]
Counsel
for the respondent made no representations on the question for certification.
Analysis
[40]
For
the following reasons, the question should not be certified.
[41]
The
question proposed by the applicant does not transcend the interests of the
immediate parties to the litigation. The Lopez Velasco and Jayasekara
cases fully respond to the issue raised.
[42]
In Jayasekara, Létourneau J.A. of the Court of Appeal
wrote that “[i]n countries where [hybrid offences
exist], the choice of the mode of prosecution is relevant to the
assessment of the seriousness of a crime if there is a substantial difference
between the penalty prescribed for a summary conviction offence and that
provided for an indictable offence.” He also stated
that the perspective of the receiving state cannot be ignored.
[43]
In Lopez Velasco, Mandamin J. stated that when Justice Létourneau spoke of the
choice of the mode of prosecution, “he was referring to the choice made in
prosecuting a hybrid offence in a jurisdiction other than Canada.”
[44]
The panel correctly applied the criteria in Jayasekara.
[45]
In the Court’s view, the panel properly found that the Canadian
perspective relevant to the seriousness of an offence includes a range of
offences from serious (an indictable offence) to less serious (a summary
conviction offence). The panel could determine that the offence here was not a
serious crime under Article 1F(b)
of the Convention, and this question does not warrant certification because it
has been disposed of.
[46]
The Court would have agreed to certify a question of general
application had the facts of the case supported framing the question as follows:
·
In
determining the seriousness of a crime for the purposes of applying Article 1F(b)
of the United Nations Convention Relating to the Status of Refugees [the
Convention], where the identical, equivalent or similar crime in Canada is a
hybrid offence punishable by summary conviction or by indictment and the
foreign offence is not, can the decision‑maker properly assume that
the refugee claimant would have been prosecuted summarily in Canada for
committing the crime in question?
[Emphasis added.]
[47]
The
circumstances of the case provide no basis for the Court to certify this question.
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