Docket: IMM-1241-14
Citation:
2015 FC 150
Montréal, Quebec, February 6, 2015
PRESENT: The
Honourable Mr. Justice Shore
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BETWEEN:
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MARKIS JULIEN
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Applicant
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and
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THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondent
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JUDGMENT AND REASONS
I.
Background
[1]
The Applicant, a 40-year-old citizen of Turks
and Caicos, was convicted in August 1996 of attempted murder in the second
degree without a firearm and kidnapping with a firearm, in the State of Florida, USA. Upon completion of his sentence, in May 2007, the Applicant was deported to
Turks and Caicos.
[2]
Approximately one year later, the Applicant
arrived in Canada on April 12, 2008. In August 2013, the Applicant married
a Canadian citizen, with whom he had previously had a child, born in August
2009.
[3]
In August 2013, the Applicant filed an
application for permanent residence sponsored by his wife, based on
humanitarian and compassionate [H&C] grounds.
[4]
In September 2013, the Applicant filed an
application for rehabilitation and was interviewed by an immigration officer
who issued a positive recommendation.
[5]
In July 2013, an immigration officer drafted an
inadmissibility report on grounds of serious criminality pursuant to
subsections 44(1) and 44(2), and paragraph 36(1)(b) of the Immigration
and Refugee Protection Act [IRPA], LC 2001, c 27, referring the Applicant
for an admissibility hearing before the Immigration Division [ID].
[6]
The Applicant seeks judicial review of a
decision by the ID of the Immigration and Refugee Board, whereas the Applicant
was found inadmissible on grounds of serious criminality, under paragraph
36(1)(b) of the IRPA.
II.
Impugned Decision
[7]
In its reasons, upon review of the evidence, the
ID finds that the Applicant was convicted of kidnapping under paragraph
787.01(1)(a) of the 1997 Florida Statutes [Florida Statutes].
[8]
The ID then considers whether the foreign
offence of kidnapping under the Florida Statutes is equivalent to the offence
of kidnapping under subsection 279(1) of the Criminal Code of Canada
[Code]. Relying on the jurisprudence, the ID determines that the offence of
kidnapping under the Code requires an element of transporting or moving a
victim from one place to another; whereas this element is not present in the
wording of subsection 787.01(1) of the Florida Statutes.
[9]
The ID thus determines that the offence of
kidnapping under the Florida Statutes is equivalent to the Canadian offence of
forcible confinement, under subsection 279(2) of the Code.
[10]
As a result, upon noting that forcible confinement
is an indictable offence liable to imprisonment for a term not exceeding ten
years or an offence punishable on summary conviction and liable to imprisonment
for a term not exceeding eighteen months, the ID finds that the Applicant is
inadmissible on grounds of serious criminality under paragraph 36(1)(b)
of the IRPA.
[11]
In accordance with paragraph 229(1)(d) of
the Immigration and Refugee Protection Regulations, SOR/2002-227
[Regulations], the ID issued a deportation order against the Applicant.
III.
Issues
[12]
The Court considers the following issues to be
determinative:
i)
Did the ID breach its duty of procedural
fairness in refusing to allow the Applicant’s request for an adjournment?
ii)
Did the ID err in finding the Applicant
inadmissible on grounds other than those set out in the inadmissibility report?
IV.
Legislation
[13]
The following provisions of the IRPA are
relevant to the present case:
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Serious criminality
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Grande criminalité
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36. (1) A permanent resident or a foreign national is inadmissible
on grounds of serious criminality for
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36. (1)
Emportent interdiction de territoire pour grande criminalité les faits
suivants :
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(a) having been convicted in Canada of an offence under an
Act of Parliament punishable by a maximum term of imprisonment of at least 10
years, or of an offence under an Act of Parliament for which a term of
imprisonment of more than six months has been imposed;
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a) être
déclaré coupable au Canada d’une infraction à une loi fédérale punissable
d’un emprisonnement maximal d’au moins dix ans ou d’une infraction à une loi
fédérale pour laquelle un emprisonnement de plus de six mois est infligé;
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(b) having been convicted of an offence outside Canada
that, if committed in Canada, would constitute an offence under an Act of
Parliament punishable by a maximum term of imprisonment of at least 10 years;
or
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b) être
déclaré coupable, à l’extérieur du Canada, d’une infraction qui, commise au
Canada, constituerait une infraction à une loi fédérale punissable d’un
emprisonnement maximal d’au moins dix ans;
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(c) committing an act outside Canada that is an offence in
the place where it was committed and that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of
imprisonment of at least 10 years.
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c)
commettre, à l’extérieur du Canada, une infraction qui, commise au Canada,
constituerait une infraction à une loi fédérale punissable d’un
emprisonnement maximal d’au moins dix ans.
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Admissibility Hearing by the Immigration Division
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Enquête par la Section de l’immigration
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Decision
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Décision
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45. The Immigration Division, at the
conclusion of an admissibility hearing, shall make one of the following
decisions:
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45. Après
avoir procédé à une enquête, la Section de l’immigration rend telle des
décisions suivantes :
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(a) recognize the right to enter Canada of a Canadian
citizen within the meaning of the Citizenship Act, a person registered as an
Indian under the Indian Act or a permanent resident;
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a)
reconnaître le droit d’entrer au Canada au citoyen canadien au sens de la Loi
sur la citoyenneté, à la personne inscrite comme Indien au sens de la Loi sur
les Indiens et au résident permanent;
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(b) grant permanent resident status or temporary resident
status to a foreign national if it is satisfied that the foreign national
meets the requirements of this Act;
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b)
octroyer à l’étranger le statut de résident permanent ou temporaire sur
preuve qu’il se conforme à la présente loi;
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(c) authorize a permanent resident or a foreign national,
with or without conditions, to enter Canada for further examination; or
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c)
autoriser le résident permanent ou l’étranger à entrer, avec ou sans
conditions, au Canada pour contrôle complémentaire;
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(d) make the applicable removal order against a foreign
national who has not been authorized to enter Canada, if it is not satisfied
that the foreign national is not inadmissible, or against a foreign national
who has been authorized to enter Canada or a permanent resident, if it is
satisfied that the foreign national or the permanent resident is
inadmissible.
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d)
prendre la mesure de renvoi applicable contre l’étranger non autorisé à
entrer au Canada et dont il n’est pas prouvé qu’il n’est pas interdit de
territoire, ou contre l’étranger autorisé à y entrer ou le résident permanent
sur preuve qu’il est interdit de territoire.
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Procedure
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Fonctionnement
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162 (2) Each Division shall deal with
all proceedings before it as informally and quickly as the circumstances and
the considerations of fairness and natural justice permit.
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162 (2)
Chacune des sections fonctionne, dans la mesure où les circonstances et les
considérations d’équité et de justice naturelle le permettent, sans
formalisme et avec célérité.
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V.
Applicant’s Arguments
[14]
The Applicant submits that the ID failed to
observe a principal of natural justice in refusing to allow the requested
six-month adjournment pending the decisions in both his rehabilitation and
permanent residence applications. The Applicant submits that the ID failed to
consider “whether allowing the application [for
adjournment] would unreasonably delay the proceedings or likely cause an
injustice”, pursuant to subsection 43(2) of the Regulations.
[15]
The Applicant also asserts that the ID erred by
acting beyond its jurisdiction in determining that the Applicant’s foreign
offence conviction of kidnapping is equivalent to the Canadian offence of
forcible confinement under the Code. The Applicant argues that this finding
exceeds the wording of the subsection 44(1) Report filed by the Minister, which
limits the scope of the hearing to the equivalency of the offence of
kidnapping, in both relevant jurisdictions.
VI.
Analysis
A.
Breach of the Principles of Natural Justice and
Procedural Fairness
[16]
Adjournment of proceedings falls within the ID’s
discretionary powers. Administrative tribunals, such as the ID, are “masters of their own house” in that they control their
own procedures, within the limits of the law and their compliance with the
rules of fairness and natural justice (Prassad v Canada (Minister of
Employment and Immigration), [1989] 1 S.C.R. 560 at para 17; Benitez v
Canada (Minister of Citizenship and Immigration), 2006 FC 461 at para 183).
[17]
There is no legal requirement that an
admissibility hearing be adjourned pending decisions in rehabilitation or
permanent residency applications (Alabi v Canada (Minister of Public Safety
and Emergency Preparedness), 2008 FC 370 at paras 40-41). In other words,
such pending applications do no prohibit a decision to be rendered on
allegations of criminal inadmissibility.
[18]
The Applicant was given the right to be heard
before the ID, an independent and impartial decision-maker, and was given the
opportunity to provide submissions relating to the equivalency of offences
considered by the ID, in accordance with the principles of natural justice.
[19]
Upon review of the ID’s reasons, the parties’
submissions and the evidence as a whole, the Court finds that the ID reasonably
determined that an adjournment was unwarranted in the Applicant’s particular
circumstances. It was fully within the ID’s jurisdiction and discretion to
refuse such a request.
B.
The ID’s Finding of Inadmissibility
[20]
The Applicant submits that the issue of the
equivalency of forcible confinement was not before the ID, the Respondent
having limited its report under subsection 44(1) to the issues of whether “this offence [the kidnapping under the Florida Statutes] if
committed in Canada would constitute kidnapping which is an indictable offence
under subsection 279(1) of the Canadian Criminal Code”.
[21]
According to the jurisprudence, equivalency of
offences can be determined by one of three ways:
[…] first, by a comparison of the precise
wording in each statute both through documents and, if available, through the
evidence of an expert or experts in the foreign law and determining therefrom
the essential ingredients of the respective offences. Two, by examining the
evidence adduced before the adjudicator, both oral and documentary, to
ascertain whether or not that evidence was sufficient to establish that the
essential ingredients of the offence in Canada had been proven in the foreign
proceedings, whether precisely described in the initiating documents or in the
statutory provisions in the same words or not. Third, by a combination of one
and two.
(Hill v Canada (Minister of Employment and
Immigration), [1987] FCJ 47).
[22]
The ID provided a thorough analysis of the
offences under consideration. The ID engaged in an analysis of the wording of
the relevant provisions, the interpretation given to the offences in the
jurisprudence and the parties’ submissions.
[23]
Relying on subsection 162(2) and section 165 of
the IRPA, and Part I of the Inquiries Act, RSC 1985, c I-11, the
Respondent submits that, in light of the inquisitorial and informal nature of
the admissibility process, the ID may do what it considers necessary to provide
a full and proper hearing. The ID is thus not bound by the arguments raised by
the parties in the proceedings (R. v Mian, 2014 SCC 54 at para 38). The
Court agrees with the Respondent’s view, as it is consistent with the IRPA’s
legislative scheme and with the jurisprudence.
[24]
The Respondent also rightfully submits, relying
on paragraphs 3(1)(h) and (i) of the IRPA, that the admissibility
process implements the IRPA’s primary objectives of protecting the health,
safety and security of Canadian society and “to promote
international justice and security […] by denying access to Canada to persons who are criminals or security risks”.
[25]
The Court finds that it was open to the ID to
address equivalency grounds which the ID considered more fitting or
appropriate, and that found anchorage in the evidence, in assessing the
Applicant’s admissibility to Canada.
VII.
Conclusion
[26]
The ID’s decision is reasonable and the
deportation order against the Applicant is valid.
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