Date:
20130416
Docket:
IMM-6226-12
Citation:
2013 FC 381
Ottawa, Ontario, April 16, 2013
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
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MARTIN VUCAJ
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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 for judicial review pursuant to subsection
72(1) of
the Immigration and Refugee Protection Act, SC 2001, c 27 [the IRPA] of
a decision of the Refugee Protection Division [the RPD], dated May 28, 2012,
wherein it determined that the Applicant is not a Convention refugee.
I. Facts
[2]
The
Applicant is a citizen of Albania. In 1988 he accompanied his family to the United States.
[3]
In
July 2004, the Applicant’s best friend, Markjol, was attacked in Birmingham, Michigan by an individual with whom he had a fight. The Applicant and his
friends went to help Markjol, and a fight started.
[4]
Three
days later, the Applicant and his friends were confronted by three individuals
who were part of the group that had fought with them earlier. They had weapons,
and the Applicant was shot in his right wrist. His friend Markjol was shot and
killed. The Applicant made a police report against the individuals who shot his
friend. The Applicant learned that those individuals were gang members from Albania. The families of the individuals declared a blood feud against the Applicant.
[5]
As
a result of the blood feud, the Applicant’s sister left California, and his
family sold their home. He later became addicted to marihuana.
[6]
The
Applicant was arrested in Michigan on July 13, 2006. He was charged with
delivery of marihuana, conspiracy to deliver marihuana, and possession with
intent to distribute marihuana. He pleaded guilty to the charges against him
and received a two-year probationary sentence.
[7]
The
United States immigration authorities deported the Applicant to Albania, where he arrived on March 25, 2009. Upon his arrival, his father’s friend informed
him that his neighbours had seen armed people break into his family home in the
city of Shkoder and that these individuals were waiting to kill him. He fled to
Montenegro and arrived in Canada on April 1, 2009.
[8]
He
fears returning to Albania because the families of three Albanian individuals
who were convicted largely due to the Applicant’s efforts are in a "blood
feud" with his family.
II. Decision
under review
[9]
The
determinative issue for the RPD was the Applicant’s exclusion pursuant to
Article 1F(b) of the Convention. The RPD found that the Applicant is a
“compulsive criminal.” Documentary evidence from police in Michigan was
consistent with the Applicant’s testimony since it confirmed that he has a
history of criminality in the United States. Moreover, the Applicant used his United States permanent residence card, which was not valid, to enter Canada.
[10]
The
RPD noted that the Applicant was convicted of an aggravated felony related to
the illicit trafficking in a controlled substance, a conspiracy or attempt to
violate law or regulation of a state in the United States, and maintaining a
drug house. The Applicant was sentenced to two years’ probation on January 17,
2008, discharged from probation under Youth Trainee Status, and as a result of
the convictions, deported to Albania.
[11]
The
RPD noted that the Federal Court of Appeal has indicated that a serious
non-political crime should be equated with one for which a maximum sentence of
10 years of imprisonment or more could have been imposed. The RPD summarized
the Applicant’s testimony and the documentary evidence related to his criminal
history in the United States. It determined that since he was an adult caught
on four occasions in possession of marihuana for the purpose of trafficking, he
would be “cumulatively liable for a jail term of over 10 years” had the crimes
been committed in Canada. As a result, the RPD found that he had committed
serious crimes in the United States prior to entering Canada.
[12]
By
looking at the factors set out by the Federal Court of Appeal in Jayasekara
v Canada (Minister of Citizenship and Immigration), 2008 FCA 404, 76 Imm LR
(3d) 159 [Jayasekara], the RPD determined that the Applicant had not
rebutted the presumption of the seriousness of the crime for a number of
reasons.
[13]
The
Applicant was an adult when he committed the crimes. With respect to the
elements of the crime, the RPD found that the documentary evidence demonstrated
that the Applicant had committed serious non-political crimes in the United States and was convicted by a fair judiciary. The mode of prosecution in the United States was fair and judicious, given that the Applicant testified that he had the
benefit of legal counsel before he was found guilty and that there was no
persuasive documentary evidence to suggest either that he was innocent or that
he was prosecuted or convicted in error. The Applicant had been tried for a
felony rather than a misdemeanour. There was no evidence to suggest that he was
forced to plead guilty. Regarding the penalty prescribed, the RPD determined
that the Applicant’s deportation and loss of permanent resident status in the United States indicated the gravity of the offences he committed. The RPD determined that there
were no mitigating and aggravating circumstances underlying his conviction
because there was no persuasive evidence suggesting that the conviction was in
any way unfair.
III. Relevant
legislation
[14]
Article
98 of the IRPA reads as follows:
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Immigration
and Refugee Protection Act,
SC 2001, c 27
Exclusion
- Refugee Convention
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.
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Loi
sur l’immigration et la protection des réfugiés, LC 2001, ch 27
Exclusion
par application de la Convention sur les réfugiés
98.
La personne visée aux sections E ou F de l’article premier de la Convention
sur les réfugiés ne peut avoir la qualité de réfugié ni de personne à
protéger.
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[15]
Article
1F(b) of the Convention states the following:
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United
Nations Convention Relating to the Status of Refugees
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;
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Convention
des Nations unies relative au statut des réfugiés
F.
Les dispositions de cette Convention ne seront pas applicables aux personnes
dont on aura des raisons sérieuses de penser :
[...]
b.
qu'elles ont commis un crime grave de droit commun en dehors du pays
d'accueil avant d'y être admises comme réfugiés;
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IV. Applicant’s
submissions
[16]
First,
the Applicant submits that the RPD erred by basing its conclusion that he had committed
serious crimes in the United States prior to entering Canada on the finding
that he would be “cumulatively liable for a jail term of over 10 years” had the
crimes been committed in Canada. The Applicant points out that Article 1F(b) of
the Convention targets persons with respect to whom there are serious reasons
for considering that he or she has “committed a serious non-political
crime” [emphasis added] before entering the country of refuge and that there
are no provisions in the legislation for considering all of the crimes an
individual committed over his or her lifetime, adding up the maximum sentences
for each crime, and then determining that cumulatively the maximum term of
imprisonment would exceed 10 years.
[17]
Second,
the Applicant submits that the RPD did not properly apply the factors set out
in Jayasekara, above. He argues that the RPD failed to consider the mode
of prosecution, namely that he was treated as a youth, and instead focused on
whether he was convicted in error. Furthermore, the Applicant submits that the RPD
ignored the penalty prescribed for his crimes, which was only two years’
probation. Instead, the RPD focused on the irrelevant issue of his deportation
and loss of permanent resident status in the United States.
[18]
The
Applicant claims that the RPD did not consider the mitigating circumstances,
which would include his addiction to painkillers after he was injured in a
fight with a criminal gang and his
alleged entrapment by an undercover police officer who asked to buy marihuana
from him while the police were conducting a sting against his roommate. The
Applicant maintains that he never initiated the sale of marihuana to anyone.
Moreover, he submits that no force or weapons were involved in the crimes.
V. Respondent’s
submissions
[19]
The
Respondent submits that the Applicant fails to appreciate that the standard of
proof for Article 1F(b) of the Convention is whether there are "serious
reasons for considering" that the claimant committed a serious
non-political crime and that convictions or formal charges are not prerequisites
for an exclusion finding.
The Respondent contends that the jurisprudence has established
that it is not necessary for the RPD to attribute a specific crime to a
claimant or to set out and determine all of the specifics or elements of the
crime committed. Accordingly, the Respondent argues that the RPD reasonably
relied on the marijuana trafficking and possession offences to assess the
seriousness of the Applicant’s non-political crimes.
[20]
The
Respondent submits that a number of relevant factors must be examined under Article
1F(b) of the Convention. First, it is reasonable for the RPD to use as a
measurement of a “serious crime” the view that Canadian law takes of that
offence and whether in most jurisdictions, the act would be considered a
serious crime. In Canada, trafficking marihuana carries a maximum sentence of
life imprisonment if the amount trafficked is greater than 3 kilograms. For
trafficking less than 3 kilograms of marihuana and possession of more than 30
grams, the maximum penalty is a five-year term in prison (Controlled Drugs
and Substances Act, SC 1996, c 19 [CDSA]). The Federal Court of Appeal
recognized in Jayasekara, above at para 48 that drug trafficking is
“treated as a serious crime across the international spectrum.” The police reports
from Michigan confirm that the Applicant chose to sell, give, transfer, and
transport marihuana in addition to selling marihuana to the undercover police
officer. This activity amounts to trafficking under section 2 of the CDSA.
Moreover, the evidence indicates that he was in possession of or sold large
quantities of marihuana to others. The RPD’s reliance on the marihuana
trafficking and possession offences to assess the seriousness of the Applicant’s
non-political crimes is reasonable, and the evidence is sufficient to meet the
requisite low evidentiary threshold that the Applicant committed a serious
non-political crime.
[21]
Moreover,
the Respondent submits that the RPD reasonably considered the Jayasekara factors.
The RPD considered his conviction, sentence and rehabilitation, none of which
diminish the seriousness of the crime. It also considered the fact that he was
represented by counsel during the criminal proceeding, that he voluntarily
pleaded guilty to the charges, and that he was an adult when he committed the
offences. Regarding the mitigating circumstances, the Respondent contends that
contrary to the Applicant’s assertion that the undercover police officer
convinced him to sell marihuana, the police reports confirm that on multiple
occasions the Applicant chose to contact the police officer to sell marihuana.
The Respondent submits that it was also open to the RPD to find that the Applicant
is a compulsive criminal and that he was deported back to Albania by the United States authorities as a result of his convictions. The Respondent claims that
these are aggravating circumstances. The Respondent also notes that the Applicant
entered Canada illegally.
[22]
Finally,
the Respondent submits that adequacy of reasons is not a stand-alone basis for
quashing a decision.
VI. Issue
[23]
Did
the RPD err in its assessment of the seriousness of the Applicant’s crimes?
VII. Standard
of review
[24]
The
Applicant submits that the RPD’s interpretation of the law was flawed, and that
as the issue is strictly one of law, the applicable standard of review is
correctness.
[25]
The
Respondent submits that the issue of whether the Applicant is a person
described in article 1F(b) of the Convention involves questions of mixed fact
and law, and as such can only be quashed if it is unreasonable (Jayasekara,
above at para 10).
[26]
Since
this judicial review involves the RPD’s interpretation of Article 1F(b) of the
Convention, a standard of correctness is appropriate as there is a need to
interpret international conventions uniformly (see Febles v Canada (Minister of Citizenship and Immigration), 2012 FCA 324 at paras 22-25, 223
ACWS (3d) 1012). As recently as March of this year, the Court of Appeal
confirmed this position (See B010 v Canada (Minister of Citizenship and
Immigration), 2013 FCA 87 at para 71, 2013 CarswellNat 650).
VIII. Analysis
[27]
The
RPD’s decision cannot be maintained and must be quashed. The RPD’s interpretation of the
IRPA that
led to its conclusion that the Applicant has committed a serious non-political
crime is incorrect.
[28]
As
noted by the RPD, the Court of Appeal recognized that paragraph 101(2)(b)
of the IRPA, which defines a serious non-political crime as a crime for which a
maximum term of imprisonment of at least 10 years could have been imposed had
the crime been committed in Canada, is a strong indicator that such crimes are
considered serious (Jayasekara,
above, at para 40):
40. For the purpose of determining whether a person
is ineligible to have his or her refugee claim referred to the Refugee Protection
Division on the basis of "serious criminality", paragraph 101(2)(b)
of the IRPA requires a conviction outside Canada for an offence which, if
committed in Canada would be an offence in Canada punishable by a maximum
term of at least 10 years. This is a strong indication from Parliament
that Canada, as a receiving state, considers crimes for which this kind of
penalty is prescribed as serious crimes. In the case of a crime committed
outside Canada, paragraph 101(2)(b) makes the length of the sentence actually
imposed irrelevant. [...] [emphasis added]
[29]
With
this in mind, the RPD assessed the facts surrounding the offences and
determined that the Applicant was convicted of a crime for which a term of
imprisonment of 10 years or more could have been imposed. It is apparent from
the RPD’s reasoning that it deemed necessary to establish that such maximum
penalty could have been imposed had the crime been committed in Canada in order to characterize the offence as a “serious non-political crime.” It is
noteworthy that the Court of Appeal in Jayasekara, above referred to
this term of imprisonment of at least 10 years as a strong indicator of what
amounts to a “serious non-political crime” from Parliament’s perspective.
However, Jayasekara does not stand for the proposition that the RPD
cannot find that a crime for which a maximum term of imprisonment of less than
10 years could be imposed is a “serious non-political crime.” The RPD must
consider a number of additional factors to assess the seriousness of a crime.
[30]
To
reach its conclusion that the Applicant would be subject to a maximum term of
at least 10 years of imprisonment, which it considered determinative of the
application, the RPD first found that the four offences that the Applicant
committed between April and July 2006 amount to drug possession and drug
trafficking under Canadian law. It then considered that these offences each
bear a maximum sentence of five years less a day of imprisonment since the
Applicant trafficked less than 3 kilograms of marihuana and he possessed more
than 30 grams of marihuana on each occasion (see CDSA, above, ss. 4(1), 4(4)(a),
5(1), (3)(a.1)). The RPD therefore determined that in Canada the Applicant would be cumulatively liable for a maximum term of imprisonment of at least 10
years.
[31]
The
RPD misapplied the comments made in relation to the maximum term of
imprisonment in Jayasekara, above, to the facts. The RPD erred in basing
its conclusion on the finding that the Applicant would be “cumulatively liable”
for a term of imprisonment of at least 10 years had the crimes he committed in
the United States been committed in Canada and by considering this element as
determinative of the exclusion analysis. There is no provision in the
legislation for determining whether an applicant is excluded from the
Convention by adding up the maximum sentences in Canada for each of the crimes
that he or she has committed over his or her lifetime and then determining that
cumulatively the maximum term of imprisonment would be more than 10 years. Article
1F(b) of the Convention states that a refugee claimant shall be excluded from
the Convention if there are serious reasons for considering that he or she has
committed “a” serious non-political crime outside the country of refuge prior
to being admitted into the country of refuge. The sentence imposed for each
offence therefore needs to be considered individually, and the RPD committed an
error in adding up the maximum sentences for each one of the convictions.
[32]
Having
said that, the Applicant’s apparent willingness to continue to traffic
marihuana, raised by the RPD, is certainly an important factor to consider when
assessing whether he committed a “serious non-political crime,” which, as
explained below, should have been examined by the RPD. As seen above, the
maximum sentence of 10 years of imprisonment is a “strong indicator”, but there
may be other factors to consider in order to determine whether a claimant has
committed a “serious non-political crime,” such as his recurrent behaviour.
[33]
Furthermore, in Jayasekara,
above at para 3, the Court of Appeal set out four factors to consider in order
to evaluate the seriousness of a crime for the purposes of Article 1F(b) of the
Convention:
1.
The
elements of the crime.
2.
The
mode of persecution.
3.
The
penalty prescribed.
4.
The
facts and the mitigating and aggravating circumstances underlying the
conviction.
[34]
According
to the evaluation process outlined by the Federal Court of Appeal, “whatever
presumption of seriousness may attach to a crime internationally or under the
legislation of the receiving state, that presumption may be rebutted by
reference to the above factors” (Jayasekara,
above at para 44).
[35]
These
steps must be followed in order to correctly make the determination. In the
present case, in addition to the erroneous finding relating to the cumulative
liability of imprisonment described above, the RPD did not adequately deal with
some of the above-mentioned factors.
[36]
First,
the RPD did not consider in any meaningful way the mode of prosecution.
Instead, it merely referred to the mode of prosecution without giving more detail.
The RPD should have
considered, for example, whether the charges were indictable or
summary. If they were summary, that would be a relevant factor in favour of the
Applicant when considering the seriousness of his crimes.
[37]
Second,
it is important to highlight that the RPD did not consider the penalty imposed,
as required by Jayasekara. The RPD merely noted that the Applicant had “received
sentences in accordance with the USA Criminal Code.” The penalty imposed for
the four convictions was a two-year probationary sentence, but nowhere in the
decision does the RPD discuss the impact of this penalty on its analysis. The
penalty would also have been a relevant factor to consider when assessing
whether or not the Applicant has rebutted the presumption of the seriousness of
his crimes.
[38]
Finally,
concerning the RPD’s examination of the mitigating or aggravating
circumstances, it seems to have concluded that there were none. However, a
basic reading of the facts of this case shows that the Applicant became
addicted to painkillers as a result of an injury that occurred during a
criminal gang fight. He cooperated with the authorities and was instrumental as
a key witness for the Crown in the trial that led to the conviction of some of
the criminal gang members who participated in the fight. It is also noteworthy
that the Applicant did not use weapons in committing the drug trafficking
offence and that no serious injury resulted from the offence. The RPD’s
analysis would have been more complete had these factors been properly
addressed.
[39]
The
analysis would also have been more complete if the RPD had canvassed the
Applicant’s pattern of criminal behaviour as part of its consideration of
aggravating and mitigating factors.
[40]
Had
the RPD conducted a proper and complete analysis, it might have reached the
same conclusion. However, the present decision is in error as it is manifest
that the RPD concluded at the outset that the facts justified a “serious non-political
crime” determination and then conducted an erroneous and incomplete analysis.
In its reasoning, the RPD did not properly consider the language of Article
1F(b) of the Convention or the factors listed in Jayasekara, above to
assess whether the Applicant committed a “serious non-political crime.” These
errors are of such importance that, in light of the standard of correctness
applicable to the interpretation of Article 1F(b) of the Convention, the RPD’s
decision cannot stand. It shall therefore be quashed and the matter remitted to
a different panel for a new hearing.
[41]
The
parties were invited to submit a question for certification but none were
submitted.
JUDGMENT
THIS
COURT’S JUDGMENT is that the
application for judicial review is granted and the matter will be referred to a
new panel. No question will be certified.
“Simon Noël”
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