Docket: IMM-8243-13
Citation:
2014 FC 782
Ottawa, Ontario, August 7, 2014
PRESENT: The
Honourable Mr. Justice Russell
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BETWEEN:
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PAUL EDGARDO GALINDO VASQUEZ
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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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JUDGMENT AND REASONS
INTRODUCTION
[1]
This is an application under s. 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 of the Immigration and Refugee
Board [RPD or the Board], dated December 6, 2013 [Decision], which found that
the Applicant is excluded from refugee protection under Article 1F(b) of the 1951
Convention Relating to the Status of Refugees [Refugee Convention].
BACKGROUND
[2]
The Applicant is a 43-year-old citizen of Honduras who arrived in Canada on December 24, 2011. He made a claim for refugee protection in
February 2012, claiming to fear death at the hands of a prominent individual
with whom he previously had a same-sex relationship. The RPD did not consider
the grounds for protection put forward by the Applicant because it found that
he is excluded from refugee protection under Article 1F(b) of the Refugee
Convention. That provision, incorporated into domestic law by s. 98 of the Act,
precludes protection where there are serious reasons for considering that the
claimant has committed a serious non-political crime in another country before
their admission to the country of refuge.
[3]
In December 2006, the Applicant was charged in
the State of Florida with two counts of burglary of a dwelling and grand theft
third degree ($300-$5,000). He was deported from the US in March 2007 without
having stood trial on these charges. It appears he returned to the US illegally in March 2008, and remained there until he came to Canada in December 2011.
[4]
The Minister of Public Safety and Emergency
Preparedness [Minister] intervened in the RPD proceeding on the issue of
whether the Applicant was excluded from refugee protection based on the
above-noted charges.
DECISION UNDER REVIEW
[5]
The RPD found that documents provided by the
Minister alleged that the Applicant broke into a dwelling and stole
approximately $5,000 worth of possessions. The Minister submitted that if
committed in Canada, the alleged actions would constitute breaking and entering
a dwelling house under s. 348 of the Criminal Code, which carries a
maximum penalty of life imprisonment.
[6]
The Board noted that its role was neither “to try the criminal case to
Canadian standards” nor “to establish guilt or innocence according to U.S.
law,” but was rather “to establish if there are serious reasons for
considering that the claimant committed a serious non-political crime outside
of Canada before his entry into Canada” (Decision at para 7).
[7]
The Board considered “the degree of proof required,” and
found that the “serious
reasons for considering” standard requires “more than a mere suspicion,
but less than the standard applicable in civil matters of proof on the balance
of probabilities” (citing Moreno v Canada (Minister of
Employment and Immigration), [1994] 1 FC 298 (CA); Ramirez v Canada
(Minister of Employment and Immigration), [1992] 2 FC 306 (CA) [Ramirez];
Mugesera v Canada (Minister of Citizenship and Immigration), 2005 SCC
40, [2005] 2 S.C.R. 100 [Mugesera]). The Board broke its analysis up into
two parts, addressing first whether there were “serious reasons” for considering that
the claimant had committed a non-political crime before entering Canada, and
second, whether that crime was “serious” for the purposes of Article 1F(b) of the
Refugee Convention.
[8]
The Board found that there were two “dramatically different”
accounts of the events that led to the charges in the US. The Applicant stated in his Personal Information Form [PIF] narrative that he had moved
into a new house in Tampa, Florida, and went next door to see if he could use
their garbage can. The house was abandoned and in disrepair, he said, and in
the four to five months he had lived next door there had been no one living
there. He discovered an old vehicle without an engine on the property, and took
the key that was left in the ignition because he was attracted by a deer
decoration on the key. He then left and went to the store and, when he
returned, the police were waiting and arrested him. He made no mention in his
PIF of having entered the house.
[9]
During his testimony before the RPD, the
Applicant said that, in addition to taking the key from the old vehicle, he
also entered the house. The door was slightly ajar, and he put his shoulder
into it and it opened. He was curious and walked around the house, which was in
disrepair with the ceiling falling down. He was struck by the artistic beauty
of two ceramic dogs, and put them in his pocket. He then left to conduct some
business and was arrested by police when he returned later that night. The
Board observed (at paras 15-17):
The claimant stated he was not aware of being
charged with any offences as a result of entering the house. He stated the
first he learned of these charges was when he came to Canada and made a refugee claim.
He allegedly was held in custody in the U.S. after his arrest on December 20, 2006 until he was deported to Honduras. He stated he was
transferred to an immigration hold in February 2007 and asked to be deported to
Honduras. He was deported in March 2007.
The claimant was asked why he did not include
the fact that he entered the house in his PIF narrative and he stated that he
had forgotten he actually entered the house and took the two ceramic dogs until
in the process of preparing for his Immigration Division hearing.
[10]
The Board found that the Applicant’s account of
these events was “in
stark contrast to the evidence entered by the Minister.” A police
report stated that on December 19, 2006, the Applicant forced his way into an unoccupied
dwelling and removed property with an estimated value of $5,000 USD and took it
to his residence. He was arrested on the evening of December 20, 2006 as a
result of a driving violation, and after being advised of his “Miranda” rights,
admitted to breaking into the house and stealing the property. A copy of the
charges filed by the State Attorney showed that the Applicant was charged with
one count of Burglary of a Dwelling and one count of Grand Theft Third Degree
($300-$5,000).
[11]
The Minister also submitted a declaration from a
Canada Border Services Agency [CBSA] Officer. The CBSA Officer contacted Robert
Earl Knowles Sr., who said that the house belonged to his aunt, who had passed
away. Mr. Knowles had been advised of the break and enter by police on the day
it occurred. He was told that a group of individuals renting the house next
door had broken in through a back window and stolen a large amount of property,
and that the culprits had been removed from the US. He said that stolen items
included a couple hundred ceramic dogs, a vacuum cleaner, vases, and other
items he could not specifically remember. The CBSA Officer observed (at para
22):
Although Officer Clarke’s declaration is silent
on the particulars regarding the status of the house the charges filed by the
State Attorney state that the property was that of Robert Knowles and/or the
Estate of Emily Hazel. I conclude from this that the owner of the house was
Emily Hazel and that she had died and Robert Knowles was her Executor.
[12]
The RPD found that the two “drastically different
versions” of the events leading up to the criminal charges
required an assessment of “the
credibility of the evidence.” The Board stated that it had carefully examined the
evidence and strongly preferred the Minister’s evidence over that of the
Applicant. The Applicant had failed to state in his PIF that he entered the
house, and it was not credible that he had forgotten this but remembered taking
the key from the old car. It was “more likely that the claimant was
trying to hide from the reader that he entered the house.” In addition, the police report was very specific about what had
occurred. The Board found that it is “the job of the police in a democratic country like
the U.S. to impartially investigate incidents,” and there was no
reason to believe this was not done in the present matter. The Board continued
(at paras 26-28):
… The police report is corroborated by the
charges laid by the State Attorney. The U.S. is a highly democratic country and
I find that criminal charges would not be laid if there was not evidence to
support them. The claimant stated that all he was guilty of was taking a key
out of the ignition of an old car and taking two ceramic dogs from the house.
If this were true then he would not have been charged with Grand Theft Third
Degree ($300-$5,000). The value of the key and two ceramic dogs would be far
less than $300.
I find the claimant’s evidence not to be
credible and therefore place little weight on it and place considerably more
weight on the evidence contained in the police report and in Officer Clarke’s
declaration regarding what Mr. Knowles had to say about the break in of his
aunt’s house. I find it implausible that the claimant would face the charges he
did if what he stated was true.
I therefore find that the claimant broke into
his neighbour’s house with the intention of stealing anything of value that he
might encounter therein and that he did steal various items of a value of
approximately $5,000 USD.
[13]
Based on the above, the Board found that there
were serious reasons for considering that the Applicant committed the crimes of
Burglary of a Dwelling and Grand Theft Third Degree in the State of Florida.
[14]
As to whether these crimes were “serious” for
the purposes of Article 1F(b), the Board agreed with the Minister that if the
same acts were committed in Canada, the Applicant would have been charged under
s. 348(1)(d) of the Criminal Code, which carries a maximum penalty of life
imprisonment. The Board then considered the factors set out in Jayasekara v Canada (Minister of Citizenship and Immigration), 2008 FCA 404 at para 44 [Jayasekara],
which it enumerated as follows (at para 32):
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an evaluation of the elements of the crime;
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the mode of prosecution;
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the penalty prescribed; and
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the mitigating and aggravating circumstances
underlying the conviction.
[15]
The Board found that the Applicant had not
appeared in criminal court to answer to the charges, so there was no penalty
prescribed. With respect to the elements of the crime, the RPD rejected as not
being credible the Applicant’s evidence that he entered the house to satisfy
his curiosity and had no intent of stealing anything, taking the two ceramic
dogs only because of their artistic appeal. Rather, the RPD stated that it
relied on the police report and court documents. Based on this evidence, the
Board concluded that the Applicant was one of several occupants renting a house
next door to the house in question, and that the owner, Emily Hazel, passed
away and her house was left unoccupied. It was not an abandoned house, but
rather formed part of an estate, and had not ceased to be a dwelling. The RPD
did not accept that it was a run down and crumbling structure as the Applicant
described. Rather (at para 36):
Ms. Hazel’s nephew, Mr. Robert Knowles, was
responsible for the estate and it is logical to conclude that, as executor, he
attended to the maintenance needs of the house…
[16]
It was unclear whether the Applicant was held in
custody until deported in March as he alleged, or was released from custody.
However, the Applicant had failed to attend an interview for the Pre-Trial
Intervention program, which suggested he was not incarcerated, and it did not
seem logical that the State of Florida would issue a warrant for failing to
appear in court on April 16, 2007 if the Applicant had been deported in March
2007.
[17]
With respect to mitigating factors, the Board
found that it was reasonable to conclude that the Applicant was aware that the
house he broke into was unoccupied, which would greatly reduce the chances of
him having to confront a resident. The State Attorney felt that the
circumstances might warrant having the offence dealt with through a diversion
program (though in the end the Applicant did not qualify), which suggested it
was considered less serious than break and enters committed under different
circumstances.
[18]
With respect to aggravating factors, the RPD
observed that s. 348 of the Criminal Code sets out a maximum penalty of
life imprisonment for the break and enter of a dwelling house, indicating the
seriousness with which Canadian law makers view this offence. The Applicant
would have no way of knowing that the owner of the property was deceased; she
could have been on an extended holiday or hospitalized, and could return home
at any time. The Board found that “[h]e was obviously prepared to take anything of value and was reckless
to what kind of harm this might inflict on the owner of the property both in
terms of stolen property and psychologically regarding feeling violated and
unsafe as a result of the break in.” In addition, he was reckless
to the sentimental value the items might hold. To this date, the RPD found, the
Applicant has not taken responsibility for his actions, maintaining that he had
no intent to steal when he entered the house which was “simply not believable.” In support of
this version of events, he “was
untruthful in his PIF narrative regarding the circumstances surrounding the
criminal charges” and “omitted any details about entering the house which
is a lie by omission.” He had not made restitution to the victim,
and although the police report stated that he expressed regret, “his actions avoiding his
responsibilities to the court demonstrate the opposite.” The
Board continued (at paras 52-53):
The claimant was reckless to the fact that
break and enter of a dwelling often leave a significant psychological impact on
the victims. They no longer feel safe in their residence, a place that should
serve as a sanctuary for the owners. Victims often feel violated knowing that
someone was in their house and going through their most personal possessions.
This, no doubt, is part of the reason that our law makers view this offence
with such severity.
Although of the belief that the house he broke
into was vacant the claimant could not have been assured he would not confront
anyone. The executor could have walked in, the owner could have returned (the
claimant had no way of knowing the owner was deceased) after their holiday or
hospitalization. If he was confronted the chances of this break and enter
escalating into something even more serious was a distinct possibility. He
obviously was prepared to take this chance.
[19]
The Board found that these were all aggravating
factors, and that after considering all of the factors set out in Jayasekara,
above, the crime the Applicant committed was “a serious matter that could reasonably have serious
consequences far beyond the loss of property.” As such, the
Applicant had committed a serious, non-political crime before his entry to Canada and was excluded from the definition of a refugee and a person in need of protection
under Article 1F(b) of the Refugee Convention and s. 98 of the Act.
ISSUES
[20]
The Applicant raises the following issues for
the Court’s consideration in this proceeding:
a. Do the doctrines of res judicata or abuse of process apply,
such that the Minister was estopped from arguing certain factual issues before
the RPD that were already finally decided in a prior preceding before the
Immigration Division of the Immigration and Refugee Board?
b. Did the RPD misapprehend evidence about the value of the missing
items in a manner that tainted its analysis of the Applicant’s credibility?
c. Did the RPD fail to properly identify and analyze the offence
forming the basis of the Applicant’s exclusion under Article 1F(b) of the
Refugee Convention?
d. Was the RPD’s approach to assessing the Applicant’s credibility
unreasonable?
e. Did the RPD err in finding that there was sufficient evidence before
it to conclude that there were serious reasons for considering that the Applicant
had committed a criminal offence outside Canada?
f. Did the Board err in finding that the acts done by the Applicant,
even if offences, were serious offences within the meaning of Article 1F(b)?
STANDARD OF REVIEW
[21]
The Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir] 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 settled in a
satisfactory manner by past jurisprudence, the reviewing court may adopt that
standard of review. Only where this search proves fruitless, or where the
relevant precedents appear to be inconsistent with new developments in the
common law principles of judicial review, must the reviewing court undertake a
consideration of the four factors comprising the standard of review analysis: Agraira
v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at para
48.
[22]
The Respondent argues that the standard of
review for a question of exclusion involving the application of s. 98 of the
Act and Article 1F(b) of the Refugee Convention is reasonableness, as it
involves a question of mixed fact and law: see Lai v Canada (Minister
of Citizenship and Immigration), 2005 FCA 125 at para 68 [Lai]; Jayasekara,
above; Feimi v Canada (Minister of Citizenship and Immigration),
2012 FCA 325 at para 16 [Feimi]. The Applicant agrees, except when it
comes to questions of the content and effect of foreign law, which is relevant
to issues e. and f. above. The content of foreign law is a finding of fact, the
Applicant argues, while the determination of how the foreign law is applied is
a question of law. While older case law held that the standard of review for
findings of fact with respect to foreign law is reasonableness, the Federal
Court of Appeal has recently suggested that it is correctness, the Applicant
argues. The RPD therefore had to be correct in its identification of the
elements of the foreign offence and whether they applied to the Applicant: see Canada
(Minister of Citizenship and Immigration) v Sharma (1995), 101 FTR 54
(FCTD) at para 10; Kisimba v Canada (Minister of Citizenship and
Immigration), 2008 FC 252 at para 15, citing v Canada (Minister of
Citizenship and Immigration) v Choubak, 2006 FC 521 at paras 37, 40;
JPMorgan Chase Bank v Lanner (The), 2008 FCA 399 at para 33, leave to
appeal dismissed [2009] SCCA No 48 [JPMorgan]; General Motors
Acceptance Corp of Canada v Town and Country Chrysler Ltd, 2007 ONCA 904 [General
Motors]; see also Mugesera, above, at para 59.
[23]
JPMorgan and General
Motors, both above, dealt with appellate standards of review rather than
administrative law standards of review on judicial review. However, the
observation that, while technically a question of fact to be proven, the
content of foreign law is a unique factual question to which the traditional
justifications for deference on appeal may be less relevant applies equally in
the administrative law context. In JPMorgan, it was not necessary to
decide the standard of review on this issue. The Federal Court of Appeal
expressed no opinion on the matter, simply noting the finding of the Ontario
Court of Appeal in General Motors that a standard of correctness
applied.
[24]
I am mindful of the observation of my colleague
Justice Heneghan in Sayer v Canada (Minister of Citizenship and Immigration),
2011 FC 144 at para 4 that “[a]
reviewing court cannot simply take judicial notice of foreign law.”
It must be proven with evidence. A standard of correctness implies that I am to
make a definitive finding on the proper interpretation of foreign law, but the
Court faces the same constraints as the tribunal in that its ability to
interpret the foreign law at issue (here the criminal law of the State of
Florida) is affected by the quality of the evidence before it. Under these
circumstances, it would be disingenuous for the Court to imply that it was
offering a “correct” interpretation. The Court must look at the evidence and
determine whether the Board reasonably interpreted the foreign law and
reasonably applied it to the facts of the case.
[25]
Furthermore, in the context of criminal
inadmissibility, where the foreign law must first be proven and then compared
to an equivalent Canadian offence, findings on the content of foreign law have
been reviewed on a standard of reasonableness: Lu v Canada (Minister of
Citizenship and Immigration), 2011 FC 1476 at para 12; Patel v Canada
(Minister of Citizenship and Immigration), 2013 FC 804 at para 6; Ulybin
v Canada (Minister of Citizenship and Immigration), 2013 FC 629 at para 19.
In my view it would be incongruous to apply a different standard either to the
interpretation or the application of foreign law in the present context.
[26]
As such, I conclude that a standard of
reasonableness is applicable to each of the issues set out above.
[27]
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 para 47, and Canada (Minister of Citizenship and
Immigration) v Khosa, 2009 SCC 12 at para 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.”
STATUTORY PROVISIONS
[28]
The following provisions of the Act are
applicable in these proceedings:
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Exclusion — Refugee
Convention
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Exclusion par
application de la Convention sur les réfugiés
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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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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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[29]
Article 1F(b) of the Refugee Convention,
incorporated into the Act by s. 98, 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;
[…]
ARGUMENT
Applicant
Issue Estoppel
[30]
The Applicant argues that it was an abuse of
process, resulting in procedural unfairness, for the Minister to challenge the
credibility of his testimony on matters that had already been finally decided
by the Immigration Division of the Immigration and Refugee Board [ID], and were
thus res judicata. He argues that the factual issues surrounding his
entry into the neighbour’s house were decided at his admissibility hearing
before the ID on August 22, 2013, based on the same evidence presented to the
RPD, and the Minister was therefore estopped from re-litigating this issue
before the RPD.
[31]
The Applicant notes that the concept of res
judicata applies to proceedings before administrative tribunals (Al Yamani
v Canada (Minister of Citizenship and Immigration), 2003 FCA 482 [Al
Yamani]) and that there are two types of res judicata: cause of
action estoppel, and issue estoppel. It is only the latter that is at issue
here, he says, and a three part test applies: (1) the issue must be the same as
the one decided in the prior proceeding; (2) the prior judicial decision must
have been final; and (3) the parties to both proceedings must be the same, or
their privies (Al Yamani, above; Thambiturai v Canada (Solicitor
General), 2006 FC 750) [Thambiturai]
[32]
In the present case, the Applicant argues, the “issue of credibility between
the Minister’s evidentiary documents and applicant’s testimony” was
finally decided by the ID on August 22, 2013. Both proceedings were based on
the same evidence (including substantially the same testimony from the
Applicant at both hearings), and both tribunal members had to find the facts
respecting the Applicant’s conduct and decide if it met the elements of the
offence of burglary in Florida. While a judicial review of the ID decision is
pending, the Applicant argues that it relates solely to the ID’s use of foreign
law, not credibility or other fact findings.
[33]
The Applicant says that the Minister did not
take issue with the ID’s finding that the Applicant was credible in his
description of the events that led to the criminal charges against him. Nor did
the Minister re-evaluate his eligibility for a refugee claim and cancel his
hearing, as permitted by ss. 102 and 104 of the Act where a person is found
inadmissible for serious criminality. The Applicant argues that it was an abuse
of the Board’s process for the Minister to allow the matter to go to an RPD
hearing and then, by way of collateral attack on the ID decision, re-litigate
issues finally decided by the ID by urging the RPD to find that he was not
credible on the same factual points. This created duplicative proceedings and
inconsistent decisions and, as a result, the Applicant was treated unfairly. He
was found to be credible in one proceeding, and later, having given the same
testimony, found not to be credible on the same factual matters and excluded
from refugee protection.
Misapprehension of Evidence Regarding the Value of the Missing
Items, Affecting the Board’s Assessment of Credibility and the Seriousness of the
Applicant’s Conduct
[34]
The Applicant argues that he Board erred in
concluding that the items allegedly missing from the house were worth $5,000,
when there was an insufficient basis in the evidence to make such a finding.
The Applicant testified that he could not state a value for the items he took,
but in his mind they had almost no monetary value. Robert Knowles could not
state a value for the items, as reported in the CBSA Officer’s statutory
declaration. The Board found that the police report put the value at $5,000,
and that this was reflected in the indictment for grand theft ($300-$5,000).
However, the Board’s reading of this evidence was incorrect. $5,000 is the
upper limit of the charge listed on the indictment, and theft of $5,000 or more
is a different offence in Florida, the Applicant argues. The writing in the
police report is almost illegible; it is impossible to tell whether it says the
items were valued at approximately $5,000 or $500.00, similar
to how the figure $130.00 is written immediately below in the
same report. The missing items are not fully listed, described or appraised in
any document in the record.
[35]
The Applicant argues that this misapprehension
of the evidence affected the Board’s assessment of the Applicant’s credibility
about what he took and his intentions, and the Board’s view of the seriousness
of the Applicant’s conduct.
Failure to Properly Identify and Analyze the Offence Forming
the Basis of Exclusion
[36]
The Applicant argues that the RPD had an
obligation to make a factual finding about the offence that forms the basis of
the Applicant’s exclusion from protection: Zeng v Canada (Minister of Citizenship and Immigration), 2008 FC 956 [Zeng]. It had to
identify the elements of the foreign offence (including the defences) and have
a basis in the facts to find that they were met. While not required to list or
refer to each element of the offence, the Board’s reasons must make it
sufficiently clear why it was of the view that the offence had been committed: Jayasekara,
above; Zeng, above; Ivanov v Canada (Minister of Citizenship
and Immigration), 2004 FC 1210.
[37]
The Applicant says the legal foundation of this
case was complex, involving a highly technical area of Florida’s law, and that
the Board failed to properly analyze the underlying legal framework. He says
the RPD failed to adequately differentiate between the offences of grand theft
and burglary, and therefore erred in law by failing to identify the foreign
offence for which the Applicant was being excluded from protection. Due to the
lack of discussion of this issue in the Decision, the reviewing Court cannot
conclude that the Board understood the intricacies of the offence of burglary
in the law of Florida. In the absence of a foreign conviction, this lack of
legal analysis is fatal to the Decision. The case turned on whether there were
serious reasons to consider that burglary was committed, since the lesser
offences included in that offence (such as theft) would not qualify as serious
under Article 1F(b): Osman v Canada (Minister of Employment and Immigration),
[1993] FCJ No 1414, 46 ACWS (3d) 101.
[38]
While the Applicant admitted that his act of
taking items from the house met both the actus reus and mens rea
requirements of the offence of theft, he argues that the offence of burglary
under s. 810.02 of Chapter 810, Title XLVI of the 2012 Florida Statute requires
that an “intent to
commit an offence therein” be present at the time of entry
into the dwelling, structure or conveyance in question. If the accused does not
intend to commit offences at the time of entry, burglary is not established,
even though the accused may later form such an intent and in fact do so. The
Applicant testified that he did not have an intent to commit theft at the time
of his entry into the neighbour’s house, and the documents submitted by the
Minister are silent on the issue of intent at the time of entry. The Board
(unreasonably in the Applicant’s view) found the Applicant not to be credible,
accepted the Minister’s version of events, and appears to have decided that the
elements of burglary were established based on that version of events. However,
there was no discussion about why those elements were established, and in
particular why the element of intent to commit offences at the time of entry
was established. There was, the Applicant argues, neither documentary evidence
of such an intent nor evidence of circumstances from which it could be
inferred. Moreover, there were contradictions in the Minister’s evidence
regarding the circumstances of the offence that were not resolved by the Board
(Did the Applicant act alone or with a group of men? Did he enter through the
door or a window?), and this makes it impossible to discern why the Board found
that the Applicant committed burglary rather than a combination of lesser
offences such as trespass and theft. The Board stated that the Applicant “obviously” intended
to steal anything of value, but the reasons do not state when that intention
arose.
[39]
The Applicant submits that the Board conflated
the intent requirements of the Florida offences of grand theft and burglary,
and in doing so, ignored expert evidence regarding these offences submitted by
the Applicant. Having missed this important detail, the Board thought the
Applicant’s denial of an intent to commit offences at the time of entry was a
denial of his eventual intent to steal the ceramic dogs (Decision at para 34).
Only this reading of the reasons can explain the Board’s credibility findings
and its comment that the Applicant continues not to take responsibility for
having committed offences, when in fact he had freely admitted to the theft and
expressed remorse for his actions.
Credibility Analysis Was Unreasonable
[40]
The Applicant says that the Board had a duty to
grapple with inconsistencies in the evidence and make sufficiently clear
findings about the facts constituting the offence that forms the basis of
exclusion. Where credibility is an issue, the Board is required to give clear
and unmistakeable reasons in support of its findings: Moreno v Canada (Minister of Employment and Immigration) (1993), 107 DLR (4th) 424
(FCA). Here, the Board appears to have found that the evidence presented an
all-or-nothing credibility contest between the Applicant’s testimony and the
Minister’s documents, rather than considering the strengths and weaknesses of
each. While it fully accepted the Minister’s documents, the Board did not deal
with significant inconsistencies in that evidence, to the point that the
reasons do not make clear what facts the Board found to be established. The
police report and the CBSA Officer’s declaration offer very different accounts
of what occurred, the Applicant argues, and the inconsistencies related
directly to the nature and seriousness of the offence in question.
[41]
Moreover, the Board failed to consider that the
Applicant’s testimony was consistent with the police report, and that from the
beginning the Applicant was forthcoming and remorseful about what occurred. The
Applicant never denied that charges were laid against him. Rather, his position
was that had he gone to court, he would have been able to raise a defence to
the offence of burglary – the only offence that is relevant to the issue of
exclusion under Article 1F(b).
[42]
The Board’s finding that it is “implausible that the claimant
would face the charges that he did if what he stated were true”
is unreasonable and unsupported by the record. The extent of the police
investigation, the Applicant says, was attendance at the scene, interviews with
the complainant and the Applicant and preparation of the police report. The
evidence was gleaned from the interviews. No other evidence is referenced and
it is improper for the Board to speculate that it existed. The facts that came
out of this investigation could form the basis of several criminal offences,
the most serious of which was burglary. There is absolutely nothing in the
documents that suggests which offence the Applicant’s mens rea was
consistent with. It was therefore entirely possible for the Applicant to have
been charged with burglary and to have had a credible defence. The sole fact of
the criminal charge was not enough to undermine the Applicant’s credibility
when he denied that he committed burglary: Aguilar Valdes v Canada (Minister of Citizenship and Immigration), 2011 FC 959 at para 46.
[43]
The Applicant says the Board’s all-or-nothing
approach to credibility caused it to reject even innocuous and uncontested
evidence from the Applicant. For example, the Applicant testified that the
neighbouring house was in disrepair. He was not challenged on this and it was
consistent with all the other evidence, which stated that the house was
unoccupied. However, the Board rejected this evidence and found that the
executor of the estate was managing the house and renting it out – facts for
which there was no basis in the evidence – and viewed this as a significant
aggravating factor relating to the seriousness of the offence.
[44]
It was also unreasonable for the Board to draw a
negative credibility inference from the fact that the Applicant revealed more
details of what happened at the hearing than in his PIF. The Applicant
explained that he was unaware of the exact nature of the charges before he saw
the documents from Florida in preparing for his ID hearing. In his PIF
narrative, which focuses more on risk in a home country than criminality, he
freely admitted to having been in trouble with US authorities. When asked by
counsel about taking the ceramic dogs when preparing for the admissibility
hearing, the Applicant remembered that he had done so and immediately admitted
the surrounding circumstances to Canadian authorities. Contrary to the Board’s
findings that he was attempting to deceive authorities or was avoiding
responsibility for his offences, the Applicant was forthcoming to the best of
his ability. The fact that he made significant statements against interest
rather than denying the allegations wholesale should have made him more and not
less credible.
Unreasonable Conclusion that “Serious Grounds to Believe” Standard Was Met
[45]
The Applicant argues that when all credible
aspects of the evidence are properly considered, the following is established:
the Applicant, acting alone, entered the neighbouring unoccupied house through
the door, because it was old, appeared to be abandoned and he was curious. He
had no intention to commit any offences at the time of entry, but while inside,
took two ceramic dogs and a key, which he admitted was theft.
[46]
Since the Applicant had no intention to commit
offences when he entered the house, he argues, there are no serious grounds to
believe he committed burglary. This was the only offence that could form the
basis of the finding of exclusion from protection.
Unreasonable Finding that the Offences Were “Serious” Within
the Meaning of Article 1F(b)
[47]
The Applicant argues that the Board unreasonably
concluded that the offences committed were serious within the meaning of
Article 1F(b). In addition to the alleged errors with respect to the value of
the missing items and the failure to identify and discuss the elements of the
offences discussed above, the Applicant says a number of aggravating facts
considered by the Board have no basis in the record. There was no basis for the
finding that he intended to take “anything of value,” as there was no full listing or
appraisal of the items taken. Furthermore, the Board found, without any support
in the record, that:
•
Someone could have returned to the house at any
time;
•
The Applicant was obviously prepared to take
anything of value, even sentimental value, and was reckless to the physical and
psychological harm this would inflict on the owner;
•
The Applicant has not taken responsibility for
his actions;
•
The Applicant has not made restitution and has avoided
his responsibilities to the court;
•
The Applicant was prepared to take the chance
that the break-in would escalate into something more serious.
The Applicant argues that none of these
scenarios has any basis in the evidence, and the Applicant was not asked about
any of them during the hearing. There was no information that anyone was living
in the house or planned to visit it, that any person reported feeling violated
or suffering psychological harm, that any of the items had sentimental value to
any person, that the Applicant was consciously taking a chance that the
break-in would escalate, or that there was any chance it would. The Board’s
conclusions on these points are speculative and unreasonable, the Applicant
argues. Moreover, the finding that the Applicant was avoiding responsibilities
to the court is inconsistent with the Board’s own analysis that it was unable
to determine what happened to the Applicant before his deportation to Honduras:
whether he was avoiding responsibilities to the court or there were some
administrative oversights by US authorities.
[48]
All information suggested that the house was
unoccupied and had been so for some period of time. Thus, the Applicant submits
that it had ceased to be a dwelling house in law, and this was a mitigating
factor. There was no basis in the facts to conclude that the executor continued
to permit any person to reside there: see R v Sappier, 2005 NBPC 37.
Respondent
No Abuse of Process or
Issue Estoppel
[49]
The Respondent argues that there is no merit in
the Applicant’s serious allegation of an abuse of process by the Minister. The
case law is clear that establishing an abuse of process “requires overwhelming evidence that the proceedings
under scrutiny are unfair to the point that they are contrary to the interest
of justice” and there must be “conspicuous evidence of improper motives or bad
faith or of an act so wrong that it violates the conscience of the community,
such that it would genuinely be unfair and indecent to proceed”: R
v Power, [1994] 1 S.C.R. 601 at para 17; Blencoe v British Columbia (Human
Rights Commission), 2000 SCC 44 at para 120 [Blencoe]; Caraan v
Canada (Minister of Public Safety and Emergency Preparedness), 2013 FC 360
at para 40. The Minister properly exercised its discretion to intervene at the
RPD hearing, as is its statutory right under s. 170(e) of the Act. While the
Applicant cites ss. 102 to 104 of the Act and the fact that the Minister did
not re-determine the Applicant’s eligibility after the inadmissibility claim,
the ineligibility provision for serious criminality does not apply in these
circumstances. It applies only where the inadmissibility arises from a conviction
outside of Canada meeting certain criteria: Act, ss. 101(f), 101(2)(b).
[50]
Furthermore, the Respondent argues, this Court
and the Federal Court of Appeal have found that there is no issue estoppel, nor
is it unreasonable for the Minister to intervene at the RPD hearing. The Court
of Appeal’s analysis in Feimi, above, at paras 19-21 says that there are
no express statutory limitations on the Minister’s discretion to intervene
before the RPD, and that (at para 21):
… The issues at the eligibility and exclusion
stages of processing a refuge claim are not the same. Thus, no question of
estoppel can arise, even when the same criminal conduct underlies both the danger
opinion at the eligibility stage and intervention at the exclusion hearing.
See also Abu Ganem v Canada (Minister of Citizenship and Immigration), 2011 FC 1147 at para 43 [Abu Ganem].
Board Reasonably Found Standard of Proof Met
[51]
The Respondent says that the RPD set out in
detail why it “strongly” preferred the objective evidence of the US police report, the criminal charge and the information in the CBSA Officer’s
declaration. Based on this evidence, the Board determined that the Minister had
established that there were “serious reasons for considering” that the Applicant
committed a crime in the US. The Board was entitled to weight all of the
evidence and has complete jurisdiction to determine plausibility, gauge the
Applicant’s credibility and draw the necessary inferences: Mundi v Canada
(Minister of Citizenship and Immigration), 2004 FC 1260 at para 11; Aguebor
v Canada (Minister of Employment and Immigration), [1993] FCJ NO 732 (FCA)
at para 4 [Aguebor]; Giron v Canada (Minister of Employment
and Immigration), [1992] FCJ No 481 (FCA).
[52]
The Respondent notes that an exclusion hearing
is not in the nature of a criminal trial, and the onus on the Minister is to
establish only that there are “serious reasons for considering” that the refugee
claimant has committed a crime before coming to Canada: Lai, above, at
paras 23, 56; Murillo v Canada (Minister of Citizenship and
Immigration), 2008 FC 966 at para 24. “Serious reasons for considering” is
equivalent to “reasonable grounds to believe.” It requires more than suspicion
but less than proof on a balance of probabilities, and will exist where there
is an objective basis for the belief that is based on credible and compelling
information: Mugesera, above, at paras 114-116; Lai,
above, at para 25; Xie v Canada (Minister of Citizenship and
Immigration), 2004 FCA 250 at para 23 [Xie].
[53]
Here, the Respondent argues, the Respondent had
sufficient evidence based on the police report, the criminal charge, and the
Applicant’s own admissions that he went into his neighbour’s house with the
intent of stealing a garbage can, forced the door open, walked around and took
objects from the home and vehicle. Both this Court and the Court of Appeal have
held that the Board can rely on an indictment and an arrest warrant to conclude,
reasonably, that there are serious grounds for considering that a refugee
claimant has committed a crime. The Board can consider evidence of charges
being laid even if those charges do not result in convictions: Xie,
above, at paras 17-23; Legault v Canada (Secretary of State) (1997), 42
Imm LR (2d) 192 (FCA); Abu Ganem, above, at para 27; Betancour v
Canada (Minister of Citizenship and Immigration), 2009 FC 767 at paras
48-54.
Finding That the Crime Was Serious Was Reasonable
[54]
The Respondent argues that the Board’s
credibility finding is determinative of the Applicant’s claim. The Federal
Court of Appeal has recognized that the RPD is a specialized tribunal with
complete jurisdiction to determine the plausibility of testimony. Assessments
of the credibility of evidence are findings of fact for which the Board is
entitled to a high level of deference: Aguebor, above; Saha v Canada (Minister of Citizenship and Immigration), [2003] FCJ No 1117 at para 23 (FC); Razzagh
v Canada (Minister of Citizenship and Immigration), [2004] FCJ No 918 at
para 2 (FC). The Board’s assessment of the seriousness of the crime was
reasonable based on all of the evidence presented.
[55]
When assessing the seriousness of a crime, the Respondent
argues, there is a presumption that an offence is a “serious crime” if it would
be punishable by a term of imprisonment of at least ten years if it had been
committed in Canada: Jayasekara, above, at para 40; Chan v
Canada (Minister of Citizenship and Immigration), [2000] 4 FC 390; Xie,
above, at para 40. In this case, the Applicant’s crime, if committed in Canada, would have been punishable as breaking and entering contrary to s. 348 of the Criminal
Code, which is an indictable offence liable to a maximum penalty of life
imprisonment. As such, there is a presumption that this crime was serious.
[56]
However, the Board properly recognized that this
presumption can be rebutted by other factors, and considered the “Jayasekara
factors” in addition to the international and domestic view of the seriousness
of the crime. The Board’s credibility finding and assessment of the seriousness
of the crime were reasonable and the reasons demonstrate justification,
transparency and intelligibility within the decision-making process.
Applicant’s Reply and
Further Submissions
Issue Estoppel
[57]
The Applicant says that he is not arguing that
the Minister was precluded from intervening before the RPD on the issue of
exclusion. Rather, since the issue of what facts were established based on the
documents and the Applicant’s testimony had already been finally decided by the
ID, the Minister was bound to concede those facts. He was bound by law to
accept the ID’s findings rather than re-litigate them to get a better result.
This is precisely the situation which the principle of res judicata
exists to prevent.
[58]
The Applicant says the cases relied upon by the
Respondent on this issue are not applicable. Feimi, above, concerned
arguments about cause of action estoppel, not issue estoppel. Abu Ganem,
above, concerned the decision of the RPD, not the conduct of the Minister, who
was a party to both the ID and RPD proceedings in this matter.
[59]
The Applicant also disagrees with the view that
bad faith on the part of the Minister must be proven to establish an abuse of
process. Apart from Blencoe, above, the case law cited by the Respondent
relates to the exercise of prosecutorial discretion, which is only reviewable
in select circumstances. Blencoe establishes that, in the administrative
law context, abuse of process can be found for reasons other than the bad faith
of a party, where a denial of natural justice or obvious prejudice would occur.
[60]
The Applicant argues that the present situation
is very similar to that addressed in Thambiturai, above.
Unreasonable Findings
[61]
The Applicant does not dispute the legal
principles set out by the Respondent, but disagrees that they were properly
applied in this case. In particular, while the Board is allowed in appropriate
circumstances to base its conclusions on a foreign indictment, the Applicant is
similarly entitled to refute the allegations. Any defences to the charge must
be properly considered: Ramirez, above, at para 311.
[62]
The question of whether the Applicant committed
the offence of burglary abroad is more than an issue of credibility. The Board
has a statutory duty to conclude that the person committed an offence, albeit
on a low standard of proof. This means that, where there is no foreign
conviction, the Board must perform at least some analysis of the foreign legal
framework and explain how the foreign law applies to the facts, in order to
conclude that the foreign charges are accurate and the offence has been
committed.
[63]
In this case, the Board did not acknowledge that
in order to make out the offence of burglary in law, the intention must be
present at the time of entry. It appears that the Board concluded that just
because the Applicant subsequently formed the intent to commit theft, he had
the requisite intent for burglary and therefore found that the Applicant was
not credible in denying intent at the time of entry.
[64]
Contrary to the Respondent’s assertion that the
police report contradicted the Applicant’s testimony, the Applicant argues that
the police and court documents did not in any way contradict his testimony. He
did not deny the charges existed, but testified that he had a valid defence.
The mere existence of the charges does not undermine his credibility, and it
was unreasonable for the Board to find that it had a mutually exclusive choice
between the credibility of the US documents and that of the Applicant.
[65]
Even if the worst case scenario could be
established in the case, the Applicant argues, the offence cannot be considered
“serious” within the meaning of Article 1F(b). The Refugee Convention is a
human rights instrument, and the exclusion articles are narrowly interpreted.
The purpose informing Articles 1F(a) and 1F(c) is to “exclude those individuals responsible for serious,
sustained or systematic violations of human rights which amount to persecution”:
Pushpanathan v Canada (Minister of Citizenship and Immigration),
[1998] 1 S.C.R. 982 at paras 63-64; Ezokola v Canada (Citizenship and
Immigration), 2013 SCC 40. This suggests that only the perpetrators of the
gravest non-political crimes, who profoundly violate the human rights of
others, are to be punished by exclusion from refugee protection under Article
1F(b). This is not that case, the Applicant argues.
The Impact of Febles
[66]
The Applicant notes that the Supreme Court heard
arguments in the case of Febles v Canada (Minister of Citizenship and
Immigration), SCC Docket No 35215 [Febles] on March 25, 2014. The
scope and proper interpretation of Article 1F(b) are at issue in that case, and
the Applicant argues that Febles will likely change the law in this
area. He asks the Court to consider certain propositions put forward by the
appellant and intervenors in Febles as being correct principles of law,
including that:
- Article 1F(b) should apply only to exclude the perpetrators of
grave non-political crimes such as capital crimes and crimes against “physical integrity, life
and liberty”;
- The standard of proof “serious reasons to believe” is lower
than the criminal standard of beyond a reasonable doubt but higher than
the civil standard of balance of probabilities;
- It is overbroad and contrary to treaty interpretation
principles to presume that crimes that have a maximum sentence of 10 years
or more when prosecuted by indictment are “serious.” Rather, serious
crimes are those that would actually be punished by an appreciable number
of years of incarceration. The Board should look at the facts of the case
rather than theoretical maximums;
- The exclusion provisions of the Refugee Convention should be
interpreted narrowly, and applied only when the integrity of the purpose
of the Convention is called into question by inclusion. Both inclusion and
exclusion should be considered, and the seriousness of the claimant’s
conduct should be weighed against the consequences of exclusion; and
- Even claimants who have committed serious non-political crimes
in the past should not be excluded when inclusion would not undermine the
purposes of the Refugee Convention.
ANALYSIS
[67]
One of the central findings of the Decision
occurs at paragraph 28:
I therefore find that the claimant broke into
his neighbour’s house with the intention of stealing anything of value that he
might encounter therein and that he did steal various items of a value of
approximately $5,000 USD.
[68]
The evidentiary basis for this finding is
difficult to discern, either in the Decision itself or in the record.
[69]
I find the Board’s conclusions about the
discrepancies between the Applicant’s PIF narrative and his oral testimony
reasonable:
I have carefully examined the evidence and
strongly prefer the Minister’s evidence over that of the claimant for the
following reasons. The claimant failed to document in his PIF narrative that he
entered the house. I do not accept as credible that, at the time he prepared
his PIF, he had forgotten he had entered the house but did remember taking a
key from an old vehicle. If there was not evidence to the contrary any
reasonable person reading this PIF narrative would conclude that the claimant’s
only action was to take a key from an old vehicle. It is more likely that the
claimant was trying to hide from the reader that he entered the house. This
Panel is not in a position to assess why the claimant would have admitted to
entering the house at the Immigration Division hearing but there is
insufficient credible evidence before me to conclude that this admission was
made because the claimant had suddenly remembered it.
[70]
However, this finding does not provide a basis
for the Board’s conclusion that the Applicant broke into the house “with the intention of
stealing anything of value….” It is clear that he broke into the
house, but the Board still needs to provide an evidentiary basis for his intent
at the time of the break-in. The Board attempts to do this with the following
reasoning:
The police report is very specific about what
had occurred. It is the job of the police in a democratic country like the U.S. to impartially investigate incidents and I have no reason to believe that his was not
done in the matter before me.
There is insufficient credible evidence before
me to conclude the police fabricated evidence or did not properly document the
incident involving the claimant. The police report is corroborated by the
charges laid by the State Attorney. The U.S. is a highly democratic country and
I find that criminal charges would not be laid if there was not evidence to
support them. The claimant stated that all he was guilty of was taking a key
out of the ignition of an old car and taking two ceramic dogs from the house.
If this were true then he would not have been charged with Grand Theft Third
Degree ($300 - $5,000). The value of a key and two ceramic dogs would be far
less than $300.
I find the claimant’s evidence not to be
credible and therefore place little weight on it and place considerably more
weight on the evidence contained in the police report and in Officer Clarke’s
declaration regarding what Mr. Knowles had to say about the break in of his
aunt’s house. I find it implausible that the claimant would face the charges he
did if what he stated was true.
[71]
As I read these paragraphs, the Board’s
rationale for finding the requisite “intention of stealing
anything of value” is that the Police Report is “specific” in
this regard and this evidence is corroborated by the State Attorney who laid
the charges. It is important to remember that the Applicant never faced trial
and was deported from the US, so we do not know what evidence he would have
adduced to meet the charges and, in particular, what his evidence would have
been on the issue of intent.
[72]
The Police Report, which appears at page 185 of
the CTR, says, in relevant part, that the Applicant:
(a) Forced entry into the unoccupied dwelling;
(b) He removed property estimated at “$500C”;
(c) He took the property to his residence;
(d) He later expressed remorse about what he had done and “admitted that the entered the
complainant’s house without permission, and took property from it to his own
house.”
[73]
None of this supports a finding that the
Applicant broke into the house
“with the intention of stealing anything of value that he might encounter.”
The Applicant himself provided evidence of his intent upon entry and, although
I accept the Board’s conclusions in paragraph 24 that “[i]t is more likely that the claimant was trying to
hide from the reader that he entered the house,” this does not
decide the crucial issue of his “intent” in entering the house.
[74]
The bringing of charges by the State Attorney
corroborates very little. There would obviously be a possibility that the
Applicant had entered with the requisite intent, but this would have to be
proved at trial and we simply don’t know whether that would have been possible,
or how the Court would have received the Applicant’s version of events and
intent if he had chosen to testify in his own defence.
[75]
The Police Report, and the bringing of charges
by the State Attorney, do not refute the Applicant’s account of his “intent” on
entering the house because they provide no evidence of that intent.
[76]
The Police Report is also unclear on the value
of the property that was taken by the Applicant. “$500C” is not necessarily “$5,000,”
and the Board doesn’t say why it decided it was, except by reference to the
charge of “Grand Theft Third Degree ($300 - $5000).” All this means is that the
value of the property taken fell within the range; not that it was $5,000. The
Board is obviously implying that the Applicant must have taken more than the
“two ceramic dogs” if he was charged with this offence. But this does tell us
that “he did steal
various items of a value of approximately $5,000 USD.” We just
don’t know what the Board is referring to here or how it reached a $5,000 USD
value, unless it is relying upon the figure contained in the Police Report
which is just not clear. The Board’s reasoning on this issue is circular. It
interprets the figure as “$5,000” because “the Applicant would not have been charged with a $300
- $5,000 offence.”
[77]
There were many credibility issues at play in
the proceeding before the Board, and the Board cannot be faulted for its
suspicions about the Applicant’s PIF omissions, but it still had to decide
whether there were reasonable grounds to support the requisite “intent” or
entry for burglary under the laws of the State of Florida, and the Board has
failed to do so in any way that could be called reasonable.
[78]
The Board is also swayed in its deliberations by
the declaration of the CBSA Officer, Adam Clarke, and his dealings with Robert
Earl Knowles:
The Minister also submitted a declaration from
Canada Border Services Officer Adam Clarke. Officer Clarke contacted Robert
Earl Knowles Sr. Mr. Knowles advised that the house that was broken (sic) belonged
to his aunt who had passed away. He was advised of the break and enter by the
police on the day that it occurred. He was told by the police that a group of
individuals who were renting the house next door broke into the house through a
back window and stole a large amount of property. He observed the extent of the
theft but had nothing further to do with the incident. He was advised by the
police that the culprits had been removed from the U.S.
Mr. Knowles advised that the stolen items
included a couple hundred ceramic dogs, a vacuum cleaner, vases and a number of
other items that he cannot specifically remember.
Although Officer Clarke’s declaration is silent
on the particulars regarding the status of the house the charges filed by the
State Attorney state that the property was that of Robert Knowles and/or the
Estate of Emily Hazel. I conclude from this that the owner of the house was
Emily Hazel and that she had died and Robert Knowles was her Executor.
[79]
It isn’t clear what this evidence goes to. The Board
doesn’t say whether it thinks the Applicant broke into the house through a back
window and stole a large amount of property, or whether it thinks the Applicant
stole “a couple of
hundred ceramic dogs.” Perhaps this is simply about ownership of
the house. But it is noticeable that there are significant differences between
the Police Report heavily relied upon by the Board for what happened and the
evidence of what happened as relayed by the CBSA Officer after his conversation
with Mr. Knowles. This required the Board to clarify its findings as to what it
accepted as evidence to support serious grounds.
[80]
The Applicant raises many issues and I do not
accept all of them as reviewable errors. However, the principal concern for the
Court is the Board’s failure, in its “serious reasons for considering” analysis
to provide an evidentiary basis for its crucial finding at paragraph 28 that,
in breaking into the house, the Applicant’s intent was to steal “anything of value that he
might encounter therein and that he did steal various items of a value of
approximately $5,000 USD.” It is not enough to say that the
Applicant was charged with the offences, and the Police Report provides no
evidence of intent that would allow a finding of burglary as opposed to, say,
trespass. On this ground alone, this matter should be retuned for
reconsideration.
[81]
Applicant’s counsel has suggested the following
questions for certification:
Has the Supreme Court of Canada decision Ezokola
v. Canada (Citizenship and Immigration), 2013 SCC 40, [2013] 2 S.C.R. 678
overtaken prior jurisprudence and established that, under s. 98 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 and article 1F of the Convention
Relating to the Status of Refugees, 189 U.N.T.S. 150, entered into force
April 22, 1954, the evidentiary standard of “serious reasons for considering”
that a refugee claimant has committed or been guilty of the acts set out in
article 1F is equivalent to neither the criminal nor civil standard of proof,
but is higher than “reasonable grounds to believe” and implies that, prior to
excluding a refugee claimant from protection, a decision maker must be satisfied
on at least a balance of probabilities that the refugee claimant has committed
or been guilty of those acts?
[82]
In view of the result and my reasons these
questions are not material to my decision.
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