Date:
20130829
Docket:
IMM-11894-12
Citation:
2013 FC 913
Ottawa, Ontario,
August 29, 2013
PRESENT: The
Honourable Mr. Justice Russell
BETWEEN:
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NOE GAMA SANCHEZ
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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 [Act] for judicial review of the decision
of the Refugee Protection Division [RPD] of the Immigration and Refugee Board,
dated 30 October 2012 [Decision], which found that the Applicant was excluded
from refugee protection pursuant to Article 1F(b) of the United Nations
Convention Relating to the Status of Refugees and section 98 of the Act.
BACKGROUND
[2]
The
Applicant is a 38-year-old citizen of Mexico. He arrived in Canada on 1 June 2008 and claimed refugee protection on 9 December 2008.
[3]
Before
coming to Canada, the Applicant lived in the United States. On 13 November
1996, the Applicant sold approximately 200 grams of drugs containing
methamphetamine to an undercover police officer in Nebraska. The Applicant was
charged with two criminal offences: (I) conspiracy to
possess with intent to distribute and to distribute a substance containing
methamphetamine; and (II) possession with intent to distribute a substance
containing methamphetamine.
[4]
On
the advice of a confidential informant, the Nebraskan police also searched the
basement of the house next door to the Applicant’s. The informant said that the
Applicant had been seen coming in and out of the basement of that house with
drugs, and the police attributed the drugs found in the basement to the
Applicant and his brother. The police also recovered a weapon.
[5]
The
Applicant cooperated with the Nebraskan authorities and entered into a plea
bargain. He pled guilty to the first charge, and the second charge was dropped.
As part of the plea bargain the Applicant agreed to deportation and the United
States Attorney’s Office agreed to recommend that the Applicant not be
considered a leader, organizer or manager of the crime, and that increases in the
level of offence would not be sought. The Applicant was sentenced to 60 months
imprisonment, which was the statutory minimum out of a potential sentence of 40
years. On 25 June 1998 the Applicant was transferred to a Mexican prison, and
he was released in 2001 after completing his sentence.
[6]
Part
of the Applicant’s plea agreement also provided that he would be held
responsible for at least 100 grams and not more than 700 grams of a substance
or mixture containing methamphetamine. Prior to the Applicant’s sentencing, his
lawyer objected to the amount of drugs it was alleged was involved in the
offence, as well as the alleged extent of the Applicant’s criminal history. The
Applicant denied having any involvement with drugs found in the basement of the
house next door to his home, or having any involvement in drug-related
activities other than the attempt to sell methamphetamines on one occasion (13
November 1996).
[7]
According
to the Applicant, the only time he attempted to sell methamphetamines was on 13 November
1996. Earlier that day, the Applicant says he learned that his grandmother had
passed away and he desperately wanted to return to Mexico for the funeral. The
Applicant was 22 years-old at that time, and he says that the only way he
thought he would be able to get the money he needed to return to Mexico was by
selling drugs. Regardless, the Nebraska Court found in sentencing that the
offence involved at least 400 grams, but less than 700 grams, of a substance
containing methamphetamines, and that the Applicant’s criminal history was not
limited to the attempted sale on 13 November 1996.
[8]
By
decision dated 30 October 2012, the RPD found that the Applicant’s criminal history
involved a serious non-political crime and, accordingly, that the Applicant was
excluded from refugee protection.
DECISION UNDER
REVIEW
[9]
The
RPD found that the Applicant was excluded from refugee protection by virtue of
Section F of Article 1 of the United Nations Convention Relating to the Status
of Refugees, which 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;
[10]
As
there was little dispute as to the facts surrounding the Applicant’s criminal
background, the main issue in contention was whether or not the subject crime
was “serious” for the purposes of Article 1F(b). The Minister had to
demonstrate that the crime was “serious” on a standard that was less than a
balance of probabilities, but more than a mere suspicion (Sumaida v Canada
(Minister of Citizenship and Immigration), [2000] 3 FC 66 (CA)).
[11]
The
RPD noted that the determination of facts in exclusion cases requires the same
approach as in inadmissibility cases, which is different from the approach
taken in determining the facts pertaining to refugee claims under sections 96
or 97 of the Act. The standard that the RPD used in this case was “reasonable
grounds to believe,” which is a threshold rather than a standard of proof (Mugesera
v Canada (Minister of Citizenship and Immigration), 2005 SCC 39).
[12]
The
RPD noted that, according to the Criminal Code of Canada, RSC 1985 (Criminal
Code) and the Controlled Drugs and Substances Act, SC 1996, c 19
(CDSA), the Applicant was convicted of an indictable, not hybrid, offence.
Crimes for which one might serve over ten years should be considered serious (Canada v Canada (Minister of Citizenship and Immigration), [2000] 4 FC 300 (CA)),
though the RPD considered this a “guideline” and not a hard rule. Further, the
Federal Court of Appeal has provided guidance on this issue at paragraphs 44-46
of Jayasekara v Canada (Minister of Citizenship and Immigration), 2008
FCA 404 [Jayasekara]:
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: see S.
v. Refugee Status Appeals Authority; S. & Ors v. Secretary of State for the
Home Department, [2006] EWCA Civ 1157; Miguel-Miguel v. Gonzales,
500 F.3d 941 (9th Cir. 2007), August 29, 2007, at pages 945 and 946-947. In
other words, 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. There is no balancing, however,
with factors extraneous to the facts and circumstances underlying the
conviction such as, for example, the risk of persecution in the state of
origin: see Xie v. Canada (Minister of Citizenship and Immigration),
[2005] 1 F.C.R. 304 (F.C.A.), at paragraph 38; Immigration and
Naturalization Service v. Aguirre-Aguirre, at page 427; T. v. Secretary
of State for the Home Department, [1995] 1 W.L.R. 545 (C.A.), at pages
554-555; Dhayakpa v. Minister of Immigration and Ethnic Affairs, at
paragraph 24.
For instance, a constraint short of the criminal law
defence of duress may be a relevant mitigating factor in assessing the
seriousness of the crime committed. The harm caused to the victim or society,
the use of a weapon, the fact that the crime is committed by an organized
criminal group, etc. would also be relevant factors to be considered.
I should add for the sake of clarity that Canada, like Great Britain and the United States, has a fair number of hybrid offences, that is to
say offences which, depending on the mitigating or aggravating circumstances
surrounding their commission, can be prosecuted either summarily or more
severely as an indictable offence. In countries where such a choice is
possible, 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.
[13]
The
RPD noted that whether the Canadian law applicable should be at the time of the
offence (1996) or the time of the exclusion (2011) could be an important issue,
because in 1996 trafficking methamphetamine was covered by the then Food and
Drug Act, RSC 1985, c F-27, and was a hybrid offence and not strictly
indictable. The RPD reviewed submissions from both parties on this point, and
looked to the decision in Zrig v Canada (Minister of Citizenship and
Immigration), 2003 FCA 178 for its conclusion that the purpose of Article
1F(b) is to “ensure that the country of refuge can protect its own people by
closing its borders to a criminal who it regards as undesirable because of the
seriousness of the ordinary crimes which is suspects such criminal having
committed,” and as such it made sense that the law as it existed at the time of
the exclusion hearing should be applied.
[14]
The
RPD then reviewed the facts surrounding the Applicant’s drug arrest. The main
point of contention between the parties was that the information from U.S.
authorities submitted by the Minister indicated that the Applicant and his
brother had been involved in narcotics distributed in the Omaha area for approximately
two years, whereas the Applicant contended that he and his brother sold drugs
once in an attempt to get money to go back to Mexico for their grandmother’s
funeral. The Applicant disclosed a death certificate purported to be his
grandmother’s, which said she died on 13 November 1996.
[15]
The
Applicant also testified that his next-door neighbour was a drug dealer and
told him he could earn money by delivering the drugs. The Applicant recounted
selling the drugs to an undercover officer, which aligned with the U.S. authorities’ version of the facts, but denied knowing anything about the drugs that
were found in the basement of the house next door. He also denied allegations
of a confidential informant telling the police that the Applicant was seen
selling drugs in the area and keeping drugs in the basement.
[16]
The
RPD also noted that the Nebraska Court did not accept that the Applicant was
only responsible for the amount of drugs sold to the undercover officer, and
found that the offence involved at least 400 grams, i.e. he was also
responsible for the 369 grams found in the basement next door. The Nebraska
Court also referenced a “Presentence Investigation Report,” which stated that
the Applicant’s criminal history prohibited “safety valve provisions” from coming
into play, and that the statutory minimum of 60 months imprisonment had to be
imposed. Although the Presentence Investigation Report was not before the RPD,
the RPD found on a balance of probabilities that this reference meant that the
Applicant had a criminal history relevant to the drug charge, and that the
Nebraska Court was not prepared to downgrade on the basis that the Applicant’s
criminal history had been overstated. Further, the Court went on to say that
because the Applicant agreed to deportation, a decrease to 60 months of
imprisonment was appropriate. The RPD found, on a balance of probabilities,
that this meant that if the Applicant had not agreed to deportation then his
sentence would have been higher than 60 months.
[17]
The
Applicant testified that he only entered into the plea bargain because, if he
did not and his case went to trial, he faced 50 years in jail. He also alleged that
he only pled guilty to selling the drugs to the undercover officer, for which
he would only get 18-36 months in jail, but he did agree that his lawyer
explained the contents of the plea agreement to him. The Applicant also claimed
that he filed an appeal (and later abandoned it) on the basis that he was not
responsible for the drugs in the basement next door, but he provided the RPD
with no evidence about this appeal.
[18]
The
RPD noted that it was not required to “retry” the foreign proceedings, and
found that the Minister had provided serious reasons to consider that the
Applicant committed the crime of which he was convicted in Nebraska. The RPD
also accepted the evidence outside of the Applicant’s guilty plea that
indicated he was involved in drug trafficking outside of the one sale to the
undercover officer. The Applicant had provided no credible evidence to the contrary,
and while the Applicant may have wanted to return to Mexico because his
grandmother had just died, the RPD found this to be insufficient to justify
committing such a serious offence. This motivation was confirmed in the
Applicant’s guilty plea, but was not accepted by the Nebraska Court and had no
impact on his conviction or sentence. The Applicant had also provided U.S. authorities with false identification on another occasion, which gave reason to doubt
his credibility.
[19]
As
for mitigating factors, the Applicant pointed out that the drugs were not
actually found at his house and there was no evidence of violence. The
Applicant also claimed that he was not part of an organized operation, but the
RPD pointed out that the charge that he pled guilty to involved “conspiracy.”
The District Attorney also noted that he would not seek “enhancement” based
upon possession of a dangerous weapon. The RPD found that this did not mean the
Applicant did not commit the offence; it simply meant that the DA did not want
to pursue it. Furthermore, although the Applicant completed his sentence, this
was not reason enough not to apply Article 1F(b) (Jayasekara). There was
also ample case law stating that the rehabilitation of an individual is not a
relevant factor when addressing the “seriousness” of the crime in the context
of exclusion.
[20]
The
RPD also pointed to some aggravating factors. Firstly, considering the amount
of drugs involved, it found there was serious reason to consider that the
Applicant’s involvement could not simply have begun on 13 November 1996, the
same day his grandmother died. The Applicant’s attempt to present himself under
a false name and the provision of documentation in support of that false
allegation was also considered an aggravating factor.
[21]
The
RPD noted that drug trafficking is an offence which is presumed to be serious (Jayasekara
at paragraph 48), though that presumption is rebuttable. The Federal Court of
Appeal discussed the seriousness of drug trafficking in Jayasekara, and
noted that it is recognized as such by many international bodies and countries.
This “seriousness” is manifested in the severe punishment that is rendered in
many countries for engaging in such activities.
[22]
Taking
all the above into account, the RPD found that the Minister had established
that the crime committed by the Applicant in Nebraska was “serious” for the
purposes of Article 1F(b). As such, the Applicant was excluded from refugee
protection.
STATUTORY
PROVISIONS
[23]
The
following provisions of the Act are applicable in this proceeding:
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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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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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[24]
Article
1F(b) of the Convention is also applicable in this proceeding:
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;
ISSUES
[25]
The
Applicant raises the following issues in this application:
a.
Whether
the RPD erred in its assessment of the seriousness of the offence by referring
to the equivalent law in Canada at the time of the hearing rather than at the
time the offence was committed;
b.
Whether
the RPD further erred in its assessment of the seriousness of the offence by
ignoring mitigating circumstances underlying the Applicant’s conviction.
STANDARD
OF REVIEW
[26]
The
Supreme Court of Canada in Dunsmuir v New Brunswick 2008 SCC 9 held that
a standard of review analysis need not be conducted in every instance. Instead,
where the standard of review applicable to a particular question before the
court is well-settled by past jurisprudence, the reviewing court may adopt that
standard of review. Only where this search proves fruitless must the reviewing
court undertake a consideration of the four factors comprising the standard of
review analysis.
[27]
The
Applicant points out that the Federal Court of Appeal stated at paragraphs
24-25 of Febles v Canada (Minister of Citizenship and Immigration), 2012
FCA 324 [Febles] that the standard of review applicable to the RPD’s
interpretation of Article 1F(b) is correctness. The issue of whether the law at
the time of conviction or the time of the hearing was considered in a similar
context in Canada (Minister of Citizenship and Immigration) v Velasco,
2011 FC 627 [Velasco], where Justice Leonard Mandamin found at paragraph
34 that a correctness standard applied. Thus, the first issue will be evaluated
on the basis of correctness.
[28]
Whether
or not a person should be considered as falling within Article 1F(b) is a
question of mixed fact and law that is reviewable on a reasonableness standard
(Jayasekara,
above; Feimi v Canada (Minister of Citizenship and Immigration), 2012 FC
262 at paragraph 6). The Applicant agrees with this; the second issue will be
reviewed on a reasonableness standard.
[29]
When
reviewing a decision on the standard of reasonableness, the analysis will be
concerned with “the existence of justification, transparency and
intelligibility within the decision-making process [and also with] whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.” See Dunsmuir, above, at
paragraph 47, and Canada (Minister of Citizenship and Immigration) v Khosa 2009 SCC 12
at paragraph 59. Put another way, the Court should intervene only if the
Decision was unreasonable in the sense that it falls outside the “range of
possible, acceptable outcomes which are defensible in respect of the facts and
law.”
ARGUMENTS
The
Applicant
The
Date of the Equivalent Offence in Canada
[30]
The
potential sentence for a crime committed in a foreign jurisdiction as provided
in the domestic law of the country of refuge is a relevant factor for
consideration in determining the “seriousness” of a non-political crime within
the meaning of Article 1F(b) (Jayasekara, above). The RPD found that the
law at the time of the hearing applied. However, the Federal Court of Appeal
recently reached the opposite conclusion in Febles, above:
52 In my view, the ordinary meaning of the
text of Article 1F (b) is that whether a crime is serious for exclusion
purposes is to be determined on the basis of the facts listed by this Court in Jayasekara.
The seriousness of a crime is to be assessed as of the time of its commission;
its seriousness does not change over time, depending on whether the claimant is
subsequently rehabilitated and ceases to pose a danger to the public.
[31]
Further,
in Feimi v Canada (Minister of Citizenship and Immigration), 2012 FCA
325 [Feimi], the Federal Court of Appeal reiterated that the seriousness
of a crime is to be assessed as of the time of its commission, and pointed out
that someone’s “current dangerousness” or rehabilitation are not relevant to an
exclusion determination under 1F(b).
[32]
The
reasoning in Febles was recently applied by the Federal Court in Valdespino
v Canada (Minister of Citizenship and Immigration), 2013 FC 359 [Valdespino].
Justice Douglas Campbell found at paragraphs 6 and 11 that the seriousness of
the crime is to be assessed on the basis of factors that existed at the time of
the crime’s commission, and to consider post-offence mitigating and aggravating
factors was contrary to law.
[33]
The
Applicant submits that, based on the above case law, it is the law in Canada as it was at the time of the offence outside Canada that the RPD should have applied.
Mitigating Factors
[34]
In
Jayasekara at paragraph 44, the Federal Court of Appeal stipulated that
mitigating factors should be considered when analysing the seriousness of a
crime. The Applicant submits that the following mitigating factors were
relevant to his case:
•
He
was only 22 years old at the time of the offence;
•
His
grandmother had just passed away and he wanted to return to Mexico for the funeral;
•
There
was no violence related to the offence;
•
He
cooperated with U.S. authorities in their investigation;
•
He
had no previous convictions;
•
There
were no drugs or related paraphernalia in the Applicant’s residence;
•
There
was no solid evidence tying the Applicant to the drugs in the basement and his
fingerprints were not found on the lock to the basement;
•
The
amount of drugs was relatively limited;
•
He
agreed to deportation and the plea agreement;
•
The
District Attorney decided not to seek enhancements for weapon or obstruction of
justice and recommended that the Applicant was not a leader, organizer or
manager;
•
The
mandatory statutory minimum sentence of 5 years was imposed when a sentence of
up to 40 years was possible;
•
The
charge involved a substance containing methamphetamine as opposed to pure
methamphetamine, which would have carried a statutory minimum sentence of 10
years as opposed to 5 years.
[35]
The
Applicant submits that all of these factors needed to be considered in their
totality by the RPD, and the fact that they were not is an error (Toro v
Canada (Minister of Employment and Immigration), [1981] 1 FC 652 (FCA)).
The
Respondent
The
Date of the Equivalent Offence in Canada
[36]
The
Respondent points out that in Jayasekara the Federal Court of Appeal
held that there is a presumption that certain offences, including drug
trafficking, are considered serious crimes. There is also a presumption that a
crime punishable by a term of imprisonment of at least ten years is a serious
crime.
[37]
In
addition to this, the Court of Appeal laid out the following factors (Jayasekara
factors) that ought to be considered when assessing the seriousness of a crime
for the purposes of Article 1F(b):
•
The
elements of the crime;
•
The
mode of prosecution;
•
The
penalty prescribed;
•
The
facts of the conviction;
•
Any
mitigating and aggravating circumstances underlying the conviction.
[38]
The
RPD noted that possession of methamphetamine for the purpose of trafficking is
currently an indictable offence under the CDSA and punishable by life
imprisonment. The Applicant argues that the RPD should have considered the
possible sentence in Canada for possession of methamphetamine for the purpose
of trafficking in 1996 when he committed the offence in the United States, and when it was a hybrid offence under the Food and Drug Act. The
Respondent submits that accepting this argument would be contrary to the
purposes of Article 1F(b), which allows a country to close its borders to those
that it considers to be undeserving of refugee protection because of crimes such
persons have committed (Jayasekara at paragraphs 28-29).
[39]
The
Respondent submits that in Febles, cited and relied upon by the
Applicant, the Federal Court of Appeal was not considering whether the seriousness
of a refugee claimant’s crime should be assessed based on the law of the
receiving state at the time of the offence or the time of the refugee hearing.
The Court was dealing with whether rehabilitation was a relevant factor when
the RPD was assessing the seriousness of a crime. The Court of Appeal concluded
that it was not relevant for a number of reasons, including the fact that the application
of Article 1F(b) is not limited to claimants who pose a current danger to the
Canadian public. The Court’s comment that the seriousness of a crime has to be
assessed at the time of its commission has to be read in the context of the
rest of the paragraph of the Court’s reasons which indicates that the
seriousness of an offence does not change over time depending on whether the
claimant is subsequently rehabilitated. Accordingly, the comment relied up on
by the Applicant provides little, if any, support for his argument.
[40]
Furthermore,
even if one considers the Applicant’s possible sentence in 1996, his offence
was still a serious crime in Canada. A hybrid offence is treated as an
indictable offence unless the Crown elects to proceed by way of summary
conviction. Thus, even under the criminal law in Canada in 1996, the Applicant
still faced a possible sentence of 10 years for drug trafficking, which raises
the presumption of a serious crime.
[41]
In
Canada (Minister of Citizenship and Immigration) v Raina, 2012
FC 618 [Raina], the Federal Court found it was an error for the RPD to
find that the offence of sexual interference could be considered not serious
because it was a hybrid offence. Also, in Jayasekara the Federal Court
of Appeal specifically referred to the fact that drug trafficking in Canada
carries a maximum time of 18 months for a summary conviction, and up to a
maximum of life imprisonment for an indictable offence, depending on the
substance trafficked, as evidence of the seriousness with which Canada views
drug trafficking.
Mitigating Factors
[42]
The
Respondent points out that the RPD carefully and extensively reviewed the Jayasekara
factors in its Reasons for the Decision. The RPD is not necessarily required to
discuss all of a claimant’s circumstances in its reasons at the level of detail
argued by the Applicant. Furthermore, the RPD did, in fact, consider the things
listed by the Applicant in detail and at length. For example, the RPD
considered the Applicant’s age, his alleged rationale for committing the crime
because of his grandmother’s death, his lack of criminal record, his allegation
that he had nothing to do with the drugs in the basement, the statutory minimum
sentence imposed, the charges sought by the D.A., the fact that no drugs were
found in his apartment, and that there was no evidence of violence.
[43]
A
plain reading of the Decision indicates that the RPD fully analyzed the Jayasekara
factors, and the Respondent submits that the Decision was reasonable.
The
Applicant’s Reply
[44]
The
Applicant submits that the presumptions that drug trafficking and offences
punishable by a term of imprisonment of at least ten years are considered
serious crimes are rebuttable ones (Jayasekara; Feimi at
paragraph 22). This is not the end of the assessment. Whether the offence can
be prosecuted summarily and/or as an indictable offence is a relevant
consideration if there is a substantial difference between the penalties
prescribed.
[45]
Although
the Court of Appeal in Febles determined that the length and completion
of a sentence, rehabilitation, and “present dangerousness” were not relevant to
a consideration of the seriousness of a crime for the purposes of exclusion
under Article 1F(b), the Court clearly stated that “the seriousness of a crime
is to be assessed as of the time of its commission; its seriousness does not
change over time.”
[46]
The
Applicant submits that if a person cannot be given any consideration for the
passage of time, namely his or her rehabilitation and completion of the
sentence since the offence was committed, it would be inequitable for the
Minister to benefit when legislative changes make a particular offence more
serious. If the question of whether a claimant poses a present danger to the
Canadian public is not relevant for the purpose of determining “seriousness,”
then the present penalty imposed should not be either. This interpretation
would not undermine Canada’s ability to refuse protection to persons, as the
hybrid nature of the offence is only one factor among many that are assessed
when exclusion on the basis of Article 1F(b) is being determined.
[47]
The
Applicant also submits that not all of the mitigating factors mentioned by the
RPD were analysed. The mere recitation of facts does not mean that they were
analysed (Zhong v Canada (Minister of Citizenship and Immigration), 2011
FC 980). The decision in Valdespino, above, emphasized the importance of
engaging all mitigating factors in an analysis of the seriousness of an
offence.
The
Respondent’s Further Memorandum of Argument
[48]
The
Respondent submits that the law does not support the Applicant’s contention
that the RPD had to consider the criminal law in Canada as it stood at the time
the crime was committed. In Febles, the Court of Appeal was dealing with
the issue of whether rehabilitation was a relevant factor when assessing the
seriousness of a crime, and did not consider whether the law at the time of the
offence or the time of the refugee hearing ought to be applied. The Court’s
comment that the seriousness of a crime has to be assessed at the time of its
commission has to be read in the context of the rest of the Court’s words which
indicate that the seriousness of an offence does not change over time
“depending on whether the claimant is subsequently rehabilitated and ceases to
pose a danger to the public” (Febles, paragraph 52). Furthermore, in
light of the purposes of Article 1F(b), the receiving state’s present view of
the seriousness of the crime is a relevant consideration.
[49]
Furthermore,
even if one considers the law as it stood in 1996 for possession of
methamphetamine for the purpose of trafficking, the offence was still a serious
crime in Canada. It was a hybrid offence, which is treated as an indictable
offence unless the Crown elects to proceed by way of summary conviction (Raina,
above).
[50]
In
response to the Applicant’s arguments that the Jayasekara factors were
not properly considered, the Respondent notes that the RPD carefully identified
and considered the factors in its Reasons. The RPD is not required to discuss
each mitigating factor in detail or explain why it weighed the factors the way
that it did (Velasquez v Canada (Minister of Citizenship and Immigration),
2013 FC 273 at paragraph 16; Shire v Canada (Minister of Citizenship and
Immigration), 2012 FC 97 at paragraphs 62-64; Ganem v Canada (Minister
of Citizenship and Immigration), 2011 FC 1147 at paragraphs 44-47).
Furthermore, contrary to the Applicant’s allegations, many of the factors which
the Applicant says the RPD ignored are discussed at length in its Reasons.
ANALYSIS
[51]
The
Applicant does not dispute that he was convicted in 1997 in the United States for conspiracy and possession with intent to distribute methamphetamine.
There is also no issue that this crime had any political aspect. The only issue
before the Court is whether the RPD committed a reviewable error when it found
that the Applicant had committed a serious crime for the purposes of Article
1F(b) of the Refugee Convention.
[52]
As
the RPD makes clear in its Decision, the applicable date for assessing the
seriousness of any offence is an important consideration for the purposes of
Article 1F(b):
[34] The impact of the answer could be
meaningful. At the time of the offense, the criminality of the possession of
methamphetamine for the purpose of trafficking in Canada was covered by the Food
and Drug Act (FDA). Methamphetamine was a schedule G controlled drug.
Pursuant to section 39 of the FDA, one who was convicted of possession of it
for the purposes of trafficking was subject to, if indicted, a term not
exceeding 10 years but, on summary conviction, a term not exceeding 18 months. It,
unlike today under the CDSA as discussed above, was a hybrid offense and not
strictly indictable.
[35] If the FDA applied to the exclusion
analysis in this case, it would open the door to a consideration of whether, as
a hybrid offense, the circumstances could lead to a conclusion that the crime
was less than serious as was the case in the Federal Court decision MCI v.
Lopez Velasco. In that case, (which is primarily a vacation application
based on a claimant having failed to disclose a 1992 conviction for
"annoying or molesting children" in the US at his successful refugee
hearing) it was determined, in effect, both the US and Canada in 1992, were
hybrid offenses and, following the lead of the Court of Appeal in paragraphs 37
– 58 of Jayasekara, it could be determined to be less than serious. The
Court in José Velasco noted (and did not otherwise dispute) that:
The RPD accepted that it was the Respondent’s status
or potential exclusion at the time of his application for refugee status (and
not at the time of the 2010 vacation hearing) which was to be considered and,
for the purpose of analysis of the crimes, reference should be made to the laws
of California and Canada as at the time they committed in 1992.
[53]
For
the purposes of the Decision, the RPD applied the law as it existed in Canada at the time of the hearing and not at the time of the offence.
[54]
The
Applicant says that this was a reviewable error, and relies upon Febles,
above, Feimi, above, and the recent case of Justice Campbell in Valdespino,
for the proposition that the seriousness of a crime is to be assessed as of the
time of its commission.
[55]
In
Feimi, the Federal Court of Appeal follows its own decision in Febles
and the focus of disagreement in the present case requires consideration of
what the Federal Court of Appeal intended by the following paragraph of Febles:
52 In my view, the ordinary meaning of the text
of Article 1F (b) is that whether a crime is serious for exclusion purposes is
to be determined on the basis of the facts listed by this Court in Jayasekara.
The seriousness of a crime is to be assessed as of the time of its commission;
its seriousness does not change over time, depending on whether the claimant is
subsequently rehabilitated and ceases to pose a danger to the public.
[56]
The
Applicant argues that if the seriousness of the crime is to be assessed at the
time of its commission, then a reviewable error occurred in the present case
because the RPD assessed seriousness at the time of the hearing, and the
difference between the two was highly material when the RPD came to assessing
the Jayasekara factors.
[57]
On
the other hand, the Respondent argues that the Federal Court of Appeal was only
focused on rehabilitation in Febles and Feimi. The seriousness of
the crime does not change over time as a result of any rehabilitation that a claimant
is able to achieve. But this does not prevent the Government of Canada from
amending the law to make crimes more serious and, when this happens as in the
present case, it is the more serious legislative embodiment of the crime in
place at the time of the hearing that must be used to assess seriousness under
Article 1F(b) of the Convention.
[58]
The
Court has heard able arguments from counsel on both sides. For the Applicant,
counsel points out that it would be inconsistent and unfair to disregard rehabilitation
and assess seriousness at the time of the commission in some cases, but then to
allow a legislative change to move the assessment time to the hearing in other
cases. The Respondent argues that the Applicant's argument is inconsistent with
the purposes of Article 1F(b), which include allowing the country to close its
borders to persons it considers to be undeserving of refugee protection because
of the crimes that such persons may have committed. These summaries do not do
justice to the subtleties at counsel's presentations, but I think this is what
it comes down to.
[59]
In
the end, I have to agree with the Respondent. This is because I do not think the
relevant provisions of the Convention or the Act require a consideration of
what is fair to claimants, or of whether there is any inconsistency.
[60]
Article
1F(b) of the Convention allows signatories to refuse refugee protection to
claimants who they consider to have committed a serious non-political crime
outside of the country. This is a right granted to Canada and other
signatories. The time when the serious non-political crime has been committed
is any time prior to admission. It is clear from Febles that, if a
serious non-political crime has been committed, subsequent rehabilitation will
not change the seriousness of that crime. This is because it is not for the
claimant to say whether he is deserving or not to be a refugee claimant. It is
for Canada to decide who it regards as undeserving, and Canada's views on that may well change from time to time as Parliament alters its views on
particular crimes. A crime previously regarded with more leniency may well be
seen as much more threatening and repugnant as times and governments change. In
my view, a claimant considered undeserving of protection at the time of the
refugee hearing cannot be allowed to claim refugee status because he or she can
say their criminal activity was regarded as less serious at the time of
commission. If that were the case, refugee protection in Canada could be granted to people the country has come to regard as highly undesirable and
undeserving. I don't think Canada's hands can be tied in its way.
[61]
The
focus is the seriousness of the nonpolitical crime and not whether
rehabilitation has rendered a claimant less dangerous to the public. Often,
there will be no difference in this regard between the time of commission and
the time of the hearing. However, where legislative amendments have occurred and
a crime has been made more serious or less serious, it seems to me that the RPD
has to assess each claimant against Canada's prevailing view of the seriousness
of the crime in question, and this will not necessarily mean the time of
commission.
[62]
I
don't think there is anything in Febles or Feimi (concerned as
they are with rehabilitation and, to use Justice Mosley in Camacho v Canada (Minister of Citizenship and Immigration), 2011 FC 789 para 16, with considerations
that are "extraneous to the facts and circumstances underlying the
conviction") that forestalls my conclusions on this point. Indeed, I think
there is much in decisions such as Febles and, for example Zrig Canada (Minister of Citizenship and Immigration), 2003 FCA 178, that speaks to the
overall purpose of Article 1F(b) and which supports my own conclusions.
[63]
However,
I have to admit that the matter is not entirely clear and that further guidance
from the Federal Court of Appeal may well be necessary.
[64]
When
it comes to the RPD's application of Jayasekara and assessment of the relevant
mitigating factors, the Applicant says that some of the factors were mentioned
and appropriately addressed in the reasons. However, he says that others were
not, and the RPD also failed to weigh and assess the mitigating factors in their
totality. He also says that the mere recitation of facts does not imply that
those facts were analyzed.
[65]
When
I review the Decision as a whole, I am convinced that the RPD did evaluate and
weigh all of the Jayasekara factors in a reasonable way in assessing the
seriousness of the Applicant's crimes. Even though they might not all have been
reviewed and assessed in the way the Applicant says they should have been, I am
satisfied that the substance is present in the reasons. See Hawthorne
v Canada (Minister of Citizenship and Immigration), [2002] FCJ No 1687 at
para 3. The reasons for the RPD's conclusion are transparent, intelligible and
justifiable given the factors at play and I cannot say that the Decision on
this issue falls outside the range of possible, acceptable outcomes which are
defensible on the facts and law.
[66]
Both
sides have suggested similar questions for certification. I think the essence
of the point of concern is captured by the following question:
When assessing the Canadian equivalent of a foreign
offence in the context of exclusion under Article 1F(b) of the Convention
relating to the Status of Refugees and the Jayasekara factors,
should the Refugee Protection Division Member assess the seriousness of the
crime at issue at the time of commission of the crime or, if a change to the
Canadian equivalent has occurred in the interim, at the time when the exclusion
is being determined by the Refugee Protection Division?
[67]
I
agree with the Applicant that this is a serious question of general importance
under section 74(d) of the Act, that it transcends the interests of
the immediate parties, contemplates a general issue of broad importance and
would be determinative of the appeal.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
The
application is dismissed; and
2.
The
following question is certified:
When assessing the Canadian equivalent of a foreign
offence in the context of exclusion under Article 1F(b) of the Convention
relating to the Status of Refugees and the Jayasekara factors,
should the Refugee Protection Division Member assess the seriousness of the
crime at issue at the time of commission of the crime or, if a change to the
Canadian equivalent has occurred in the interim, at the time when the exclusion
is being determined by the Refugee Protection Division?
“James Russell”
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