Date:
20130425
Docket:
IMM-7028-12
Citation:
2013 FC 425
Ottawa, Ontario,
April 25, 2013
PRESENT:
THE CHIEF JUSTICE
BETWEEN:
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CARLOS ARMAND CASIMIRO SANTOS
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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
judicial review concerns a decision by the Immigration Appeal Division [IAD] of
the Immigration and Refugee Board of Canada that the Applicant, Mr. Casimiro
Santos [Casimiro], is inadmissible to Canada based on his conviction in the
United States for having failed to remain at the scene of an accident in which
he was involved.
[2]
Mr.
Casimiro alleges that the IAD erred in finding that there is equivalency
between the foreign law under which he was convicted and section 252 of the Criminal
Code of Canada, RSC 1985, c C-46 [Criminal Code].
[3]
I
disagree. For the reasons that follow, this application is dismissed.
I. Background
[4]
Mr.
Casimiro is a citizen of Guatemala who applied for refugee protection under the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA] after his arrival
in Canada.
[5]
Prior
to arriving in Canada in March 2011, Mr. Casimiro lived in the United States.
[6]
In
2007, he
was involved in a collision on a Florida highway. According to the
Offense-Incident Report and the Narrative filed by the arresting officer, Mr.
Casimiro’s car struck the rear of the victim’s car with the front of his truck.
He then left the scene while driving in an erratic manner. The victim of the
collision followed Mr. Casimiro and contacted the police, who charged him with
several offences. At the time of his arrest, the officer observed the odor of
alcoholic beverage on his breath and two half empty beer bottles in the center
consol of his truck. The officer also noted that Mr. Casimiro seemed to
comprehend verbal directions slowly, and used the body of his truck several
times as a support. The officer also determined that Mr. Casimiro had been
driving with a suspended driver’s licence. In addition, he noted that Mr.
Casimiro had refused to submit to any of the requested tests, including “the
breath tests and standardized field sobriety.”
[7]
Later
in 2007, Mr. Casimiro pled guilty to failing to remain at the scene of a crash
in which he was involved and that resulted in damage to another vehicle. He was
sentenced
to six months of probation, 30 hours of community service and a $265 fine. The
other charges that had been filed against him were dropped.
[8]
Several
weeks after he arrived in Canada in 2011, he was stopped while driving. When he
was unable to produce a valid driver’s licence, he was referred to Citizenship
and Immigration Canada [CIC]. CIC then prepared and transmitted to the Minister
an inadmissibility report under subsection 44(1) of the IRPA. In turn, the
Minister referred the report to the Immigration Division [ID] of the Board for
a hearing, pursuant to subsection 44(2) of the IRPA.
II. Relevant
Legislation
[9]
Pursuant
to paragraph 36(2)(b) of the IRPA, a foreign national is inadmissible on
grounds of criminality for:
(b)
having been convicted outside Canada of an offence that, if committed in Canada, would constitute an indictable offence under an Act of Parliament, or of two offences not
arising out of a single occurrence that, if committed in Canada, would constitute offences under an Act of Parliament.
[10]
In
making a determination as to whether a person is inadmissible to Canada under sections 34-37 of the IRPA, the following rule of interpretation set forth in
section 33 applies:
33. The
facts that constitute inadmissibility under sections 34 to 37 include facts
arising from omissions and, unless otherwise provided, include facts for which
there are reasonable grounds to believe that they have occurred, are occurring
or may occur.
[11]
Mr.
Casimiro pled guilty under § 316.061 of the Florida State Uniform Traffic
Control Statute [Florida Statute], the relevant portion of which provides as
follows:
316.061 Crashes involving damage to
vehicle or property.
(1) The driver of any vehicle
involved in a crash resulting only in damage to a vehicle or other property
which is driven or attended by any person shall immediately stop such vehicle
at the scene of such crash or as close thereto as possible, and shall forthwith
return to, and in every event shall remain at, the scene of the crash until he
or she has fulfilled the requirements of s. 316.062. A person who violates this subsection commits a
misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. Notwithstanding any other provision of this
section, $5 shall be added to a fine imposed pursuant to this section, which $5
shall be deposited in the Emergency Medical Services Trust Fund.
[12]
The
Respondent asserts that the Canadian statute which is equivalent to § 316.061
is section 252 of the Criminal Code, the relevant portions of which
state:
252. (1) Every person
commits an offence who has the care, charge or control of a vehicle, vessel or
aircraft that is involved in an accident with
(a) another
person,
(b) a
vehicle, vessel or aircraft, or
(c) in
the case of a vehicle, cattle in the charge of another person,
and with intent to escape civil
or criminal liability fails to stop the vehicle, vessel or, if possible, the
aircraft, give his or her name and address and, where any person has been
injured or appears to require assistance, offer assistance.
(1.1) Every person who
commits an offence under subsection (1) in a case not referred to in subsection
(1.2) or (1.3) is guilty of an indictable offence and liable to imprisonment
for a term not exceeding five years or is guilty of an offence punishable on
summary conviction.
…..
(2) In
proceedings under subsection (1), evidence that an accused failed to stop his
vehicle, vessel or, where possible, his aircraft, as the case may be, offer
assistance where any person has been injured or appears to require assistance
and give his name and address is, in the absence of evidence to the contrary,
proof of an intent to escape civil or criminal liability.
[13]
The
complete text of the above-mentioned provisions is set forth in Appendix 1
hereto.
III. The
ID’s Decision
[14]
After
the initial admissibility hearing, the ID concluded that § 316.061 of the
Florida Statute and section 252 of the Criminal Code are not equivalent
because intent is not a required element under the former statute, whereas it
is under subsection 252(1) of the Criminal Code.
[15]
Although
the ID took note of subsection 252(2), it concluded that intent to leave the
scene of an accident to escape civil or criminal liability had not been
established on the available facts and could not be presumed based on the
application of what it characterized as being the “the rule of evidence” set
forth in that provision.
IV. The
IAD’s Decision
[16]
On
appeal, the IAD initially focused on an argument that was not raised before
this Court, namely, that it had not been established that the accident in
question involved “either another person, a vehicle, vessel or aircraft, or
cattle in the charge of another person.”
[17]
The
IAD then turned to the alleged equivalency between section 252 of the Criminal
Code and § 316.061 of the Florida Statute. It ultimately concluded that
such equivalency existed, based on a purposive interpretation of the former
provision and the available evidence that had been adduced in the record with
respect to intent. It also observed that no other explanation for leaving the
scene of the accident had been offered by Mr. Casimiro during the course of his
immigration proceedings.
[18]
Given
the foregoing, the IAD determined that there were reasonable grounds to believe
that Mr. Casimiro was inadmissible to Canada on grounds of criminality for
having been convicted outside Canada of an offence that, if committed in Canada, would constitute an indictable offence under an Act of Parliament, i.e., section 252
of the Criminal Code.
V. Issue
[19]
The
only issue that has been raised in this proceeding is whether the IAD erred in
reaching its above-mentioned conclusion.
VI. The
Standard of Review
[20]
The
issue raised in this proceeding has two components. The first component is
whether there are reasonable grounds to believe that Mr. Casimiro is
inadmissible to Canada on the ground of criminality set forth in paragraph
36(2)(b) of the IRPA. That is a question of mixed fact and law in respect of
which the standard of review is reasonableness (Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at paras 51-53 [Dunsmuir]).
[21]
The
second component is whether the foreign offence for which Mr. Casimiro was
convicted would, if committed in Canada, constitute an indictable offence under
an Act of Parliament. This is a question of equivalency in respect of which
the standard of review appears to remain unsettled.
[22]
Relying
on Park
v Canada (Minister of Citizenship and Immigration), 2010 FC 782 at paras 12-13 [Park], where
the issue was characterized as a question of law, the
Respondent submits that the standard of review is correctness. However, there
is other jurisprudence of this Court in which the issue of equivalency has been
characterized as a question of fact, in respect of which the standard of review
is reasonableness (see, for example, Lakhani v Canada (Minister of
Citizenship and Immigration), 2007 FC 674 at paras 20-23; and Abid v Canada
(Minister of Citizenship and Immigration), 2011 FC 164, at para 11).
[23]
In
the case at bar, nothing turns on this issue, as I find that the determination
made by the IAD with respect to the issue of the equivalency between the
offence for which Mr. Casimiro was convicted under § 316.061 of the Florida
Statute and section 252 of the Criminal Code was correct. For this
reason, and given that Mr. Casimiro made no submission regarding the applicable
standard of review, I will refrain from further addressing this issue.
VII. Analysis
Did the IAD err in finding that
there was equivalency between the offence for which Mr. Casimiro was convicted
in the United States and subsection 252(1) of the Criminal Code?
[24]
Mr.
Casimiro submits that the fact that an accused can “rebut” the presumption of
intent set forth in subsection 252 (2) of the Criminal Code is
sufficient to distinguish section 252 from § 316.061 of the Florida Statute,
which is a strict liability offence that contains no such rebuttable
presumption. Stated alternatively, he contends that the fact that he could
have provided evidence that may have rebutted the presumption of intent in a
criminal proceeding under the Criminal Code is a sufficient basis upon
which to find that section 252 of the Criminal Code and § 316.061 of the
Florida Statute are not equivalent.
[25]
On
the particular facts of this case, I disagree.
[26]
At
paragraph 7 of its decision, the IAD made the requisite finding with respect to
Mr. Casimiro having been convicted of an offence outside Canada. It then turned to the equivalency between the offence for which he was convicted and the
offence in section 252 of the Criminal Code.
[27]
In
this regard, the IAD embraced, at paragraph 8 of its decision, the approach
established in Hill
v Canada (Minister of Employment and Immigration) [1987] FCJ No 47, 73 NR 315 (CA),
[Hill]. There, Justice Urie, with whom Justice MacGuigan agreed, stated
in the following passage that equivalency between a Canadian criminal statute
and a foreign law can be determined in three ways:
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.
[28]
The
IAD then proceeded to find equivalency to exist between section 252 of the Criminal
Code and § 316.061 of the Florida Statute based not only on the first of
the above-mentioned tests, but also on the second of those tests.
[29]
As
to the first of the tests, the IAD concluded, at paragraph 20 of its decision,
that the “apparent distinction between the foreign and Canadian law does not
amount to a material difference when the presumption [set forth in subsection
252(2)] is factored into the comparison because the foreign jurisdiction always
presumes the intent and in Canada it is generally presumed but can be
rebutted.” This analysis has a certain initial appeal where, as in the case at
bar, there is some evidence on the foreign record with respect to intent and
such evidence falls short of rebutting the presumption in subsection 252(2).
However, it would be problematic where the foreign national in question may
well have been able to adduce evidence to rebut the presumption set forth
subsection 252(2), but did not do so, either because such evidence was not
considered to be relevant to the foreign proceeding or because no opportunity
was provided to adduce such evidence. Given the conclusion reached below with
respect to the IAD’s approach to the second of the tests for equivalency, it is
not necessary for me to reach a conclusion regarding the correctness or
reasonableness of the conclusion reached by the IAD regarding this first test.
[30]
Turning
to the second test, the IAD began to venture down this path at paragraph 20 of
its decision, when it embraced a purposive interpretation of paragraph 36(2)(b)
of the IRPA to find that it is sufficiently broad to bring within its scope
conduct in a foreign jurisdiction that “might, if occurring in Canada, generate
a criminal conviction of concern to immigration officials.” Then, at paragraph
22, the IAD effectively reached a conclusion under Urie J’s second test when it
observed that there were “reasonable grounds to believe that the actions giving
rise to the conviction in the foreign jurisdiction would also constitute an
indictable offence under an Act of Parliament, the Criminal Code,
subsection 252(1).” In the ensuing sentence, at the beginning of paragraph 23,
it stated: “There are reasonable grounds to believe that [Mr. Casimiro] is
inadmissible to Canada on grounds of criminality for having been convicted
outside Canada of an offence that, if committed in Canada, would constitute an
indictable offence under an Act of Parliament.”
[31]
In
support of its conclusion on this second test, the IAD made the required
evidentiary findings with respect to each of what Justice Urie characterized as
being “the essential ingredients of the offence in Canada,” in Hill, above. Specifically, it noted the following:
•
Mr.
Casimiro was convicted in Circuit Court in Florida for leaving the scene of an
accident with property damage (paragraph 9);
•
Mr.
Casimiro acknowledged having “a little crash”, and indicated to the officer
that he did not know why he did not stop (paragraph 21);
•
Another
vehicle was involved, as corroborated by the victim who followed Mr. Casimiro’s
vehicle and by the damage to the victim’s car (paragraph 18);
•
The
documentary record did not disclose evidence to rebut the presumption
established in subsection 252(2) of the Criminal Code, and no
explanation for leaving the scene of the accident was offered by Mr. Casimiro
during the course of the admissibility hearing (paragraphs 10 and 21);
[32]
Based
on the foregoing, I am satisfied that the IAD reasonably and correctly
concluded that the second test for equivalency established by Justice Urie in Hill,
above, had been met (Lo v Canada (Minister of Citizenship and Immigration)
2002 FCT 1155 at paras 36 to 43). The evidence in the record pertaining to Mr.
Casimiro’s conviction pursuant to § 316.061 of the Florida Statute established
the actus reus of the offence prescribed in section 252 of the Criminal
Code and did not rebut the presumption of intent set forth subsection
252(2).
[33]
Mr.
Casimiro also appears to maintain that § 316.061 of the Florida Statute and section
252 of the Criminal Code are not equivalent because the former is a
non-criminal “traffic offence” whereas the latter is a criminal offence. He
adds that the equivalent traffic offence in Canada is section 68 of the Motor
Vehicle Act, RSBC 1996, c 18 [MVA].
[34]
I
disagree.
[35]
In
my view, the objective underlying paragraph 36(2)(b) of the IRPA is the
protection of the Canadian public from foreign nationals who have been
convicted outside Canada of an offence that, if committed in Canada would
constitute an indictable offence under an act of Parliament (see also Park,
above, at para 21). This objective may explain why there is nothing in
paragraph 36(2)(b) that in any way limits or modifies the nature of the offences
outside Canada for which a foreign national may have been convicted.
[36]
It
is not difficult to conceive a conduct that is prohibited as an indictable
offence in Canada and that may simply be treated as an administrative offence
or a misdemeanour in certain parts of the world. Foreign nationals may not
escape the purview of paragraph 36(2)(b) just because the foreign offence for
which they were convicted cannot be characterized as being criminal in nature
in that jurisdiction. Permitting them scope to do so would undermine the
important objective of protecting the Canadian public.
[37]
The
fact that § 316.061 of the Florida Statute may also be equivalent to section 68
of the MVA is not particularly relevant.
Conclusion
[38]
The
IAD did not err in finding equivalency between § 316.061 of the Florida Statute
and section 252 of the Criminal Code based on the second of the three
tests established in Hill, above, or in reaching its ultimate conclusion
that there are reasonable grounds to believe that Mr. Casimiro is inadmissible
to Canada on grounds of criminality for having been convicted outside Canada of
an offence that, if committed in Canada, would constitute an indictable offence
under an Act of Parliament.
[39]
This
application is dismissed.
[40]
The
parties did not propose a question for certification and I find that no such
question arises on the facts of this case.
JUDGMENT
THIS
COURT ORDERS AND ADJUGES THAT this application is dismissed. There
is no question for certification.
“Paul S. Crampton”
APPENDIX 1
§ 316.061 of the Florida State Uniform Traffic Control Statute
316.061 Crashes involving damage to vehicle or property.
(1)The driver of any vehicle involved in a crash resulting
only in damage to a vehicle or other property which is driven or attended by
any person shall immediately stop such vehicle at the scene of such crash or as
close thereto as possible, and shall forthwith return to, and in every event
shall remain at, the scene of the crash until he or she has fulfilled the requirements
of s. 316.062. A person who violates this subsection commits a misdemeanor of
the second degree, punishable as provided in s. 775.082 or s. 775.083.
Notwithstanding any other provision of this section, $5 shall be added to a
fine imposed pursuant to this section, which $5 shall be deposited in the
Emergency Medical Services Trust Fund.
(2)Every stop must be made without obstructing traffic more
than is necessary, and, if a damaged vehicle is obstructing traffic, the driver
of such vehicle must make every reasonable effort to move the vehicle or have
it moved so as not to block the regular flow of traffic. Any person failing to
comply with this subsection shall be cited for a nonmoving violation,
punishable as provided in chapter 318.
(3) Employees or authorized agents of the Department of
Transportation, law enforcement with proper jurisdiction, or an expressway
authority created pursuant to chapter 348, in the exercise, management,
control, and maintenance of its highway system, may undertake the removal from
the main traveled way of roads on its highway system of all vehicles
incapacitated as a result of a motor vehicle crash and of debris caused
thereby. Such removal is applicable when such a motor vehicle crash results
only in damage to a vehicle or other property, and when such removal can be
accomplished safely and will result in the improved safety or convenience of
travel upon the road. The driver or any other person who has removed a motor
vehicle from the main traveled way of the road as provided in this section
shall not be considered liable or at fault regarding the cause of the accident
solely by reason of moving the vehicle.
History.—s. 1, ch. 71-135; s. 3, ch. 74-377; s. 2, ch.
75-72; s. 9, ch. 76-31; s. 22, ch. 85-167; s. 3, ch. 85-337; s. 30, ch. 92-78;
s. 296, ch. 95-148; s. 6, ch. 96-350; s. 83, ch. 99-248; s. 3, ch. 2002-235.
Section 252 of the Criminal Code,
RSC, 1985, c C-46.
Failure to stop at scene of accident
252. (1) Every person commits an offence who has the care,
charge or control of a vehicle, vessel or aircraft that is involved in an
accident with
(a) another person,
(b) a vehicle, vessel or aircraft, or
(c) in the case of a vehicle, cattle in the charge of
another person, and with intent to escape civil or criminal liability fails to
stop the vehicle, vessel or, if possible, the aircraft, give his or her name
and address and, where any person has been injured or appears to require
assistance, offer assistance.
Marginal note: Punishment
(1.1) Every person who commits an offence under subsection
(1) in a case not referred to in subsection (1.2) or (1.3) is guilty of an
indictable offence and liable to imprisonment for a term not exceeding five
years or is guilty of an offence punishable on summary conviction.
Marginal note: Offence involving bodily harm
(1.2) Every person who commits an offence under subsection
(1) knowing that bodily harm has been caused to another person involved in the
accident is guilty of an indictable offence and liable to imprisonment for a
term not exceeding ten years.
Marginal note: Offence involving bodily harm or death
(1.3) Every person who commits an offence under subsection
(1) is guilty of an indictable offence and liable to imprisonment for life if
(a) the person knows that another person involved in the
accident is dead; or
(b) the person knows that bodily harm has been caused to
another person involved in the accident and is reckless as to whether the death
of the other person results from that bodily harm, and the death of that other
person so results.
Marginal note: Evidence
(2) In proceedings under subsection (1), evidence that an
accused failed to stop his vehicle, vessel or, where possible, his aircraft, as
the case may be, offer assistance where any person has been injured or appears
to require assistance and give his name and address is, in the absence of
evidence to the contrary, proof of an intent to escape civil or criminal
liability.
R.S., 1985, c. C-46, s. 252; R.S., 1985, c. 27 (1st Supp.),
s. 36; 1994, c. 44, s. 12; 1999, c. 32, s. 1(Preamble).
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