Docket: IMM-5833-15
Citation:
2016 FC 1143
Ottawa, Ontario, October 17, 2016
PRESENT: The
Honourable Madam Justice McDonald
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BETWEEN:
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FRANCISCO
JAVIER BELTRAN
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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
[1]
Mr. Beltran seeks judicial review of the
December 21, 2015 decision of the Immigration Division (ID) of the Immigration
and Refugee Board of Canada (IRB), finding him inadmissible to Canada on
grounds of serious criminality under paragraph 36(1)(b) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA].
[2]
Mr. Beltran is a citizen of Mexico who acquired
permanent resident status in Canada in October 2008. In December 2008, a Court
in Texas issued an arrest warrant after Mr. Beltran failed to appear in Court.
He was arrested and unsuccessfully fought extradition to the United States.
[3]
On February 1, 2013, Mr. Beltran pled guilty to
one count of wire fraud, contrary to 18 USC §1343, in the United States
District Court in the Southern District of Texas. He was sentenced to 51 months
imprisonment and was also ordered to pay over $1,000,000 in restitution.
[4]
After being awarded credit for time served, Mr.
Beltran was released on September 19, 2013 and was deported to Mexico. He
returned to Canada on November 4, 2013.
[5]
On October 8, 2014, a section 44 report under
IRPA was prepared alleging reasonable grounds to believe that Mr. Beltran is
inadmissible to Canada on grounds of serious criminality.
[6]
An admissibility hearing was held by the ID on
December 10 and 21, 2015 following which Mr. Beltran’s deportation was ordered.
Mr. Beltran seeks judicial review of this decision. He asserts that the ID did
not respect his procedural fairness rights during the admissibility hearing by
failing to consider his defence of duress.
[7]
For the reasons that follow, I conclude that the
ID hearing was fair to Mr. Beltran and there was no breach of his rights. This
application for judicial review is therefore dismissed.
I.
Issues
[8]
Mr. Beltran alleges that his procedural fairness
rights were breached by the ID. Allegations of procedural unfairness are
reviewed on the standard of correctness: Canada (Citizenship and
Immigration) v Khosa, 2009 SCC 12 at para 43.
[9]
The issues are as follows:
A.
Did the ID member err by refusing to admit the
documentary evidence?
B.
Did the ID member err by failing to allow Mr.
Beltran to testify?
C.
Was the ID member impartial?
II.
Analysis
A.
Did the ID member err by refusing to admit the
documentary evidence?
[10]
At the ID hearing, Mr. Beltran tendered
approximately 400 pages of documents to explain the circumstances surrounding
the offence and the defence of duress that could have been mounted in Canada.
He claims that he was being extorted by a powerful Mexican criminal gang.
[11]
The defence of duress was not raised in the US
criminal proceedings.
[12]
The ID member requested submissions from the
parties regarding the relevance of the documentary evidence which the Applicant
sought to introduce. The Applicant argued that the documents were relevant to
the issue of equivalency and the defence of duress in Canada in comparison to
the United States. Mr. Beltran argues that the deference of duress is narrower
in Texas, as it contains an immediacy requirement versus in Canada, where as a
result of the decision R v Ruzic, 2001 SCC 24 [Ruzic], the
defence of duress is broader.
[13]
The ID member consequently adjourned the hearing
to determine the relevance of the tendered documents. Legal counsel for Mr.
Beltran objected to the ID member determining the equivalency issue without
hearing any evidence. The ID member explained that there would be no need to
consider the documentary disclosure if the defences are equivalent.
[14]
The ID member reviewed the wording of the
defence of duress in the Texas Penal Code and noted that it appears to be equally
as broad as the Canadian defence post-Ruzic. Counsel for the Applicant
submitted that the American jurisprudence had narrowed the defence, and the ID
member received the American case authority relied on by the Applicant in
support of this position.
[15]
The ID member noted that the Supreme Court of
Canada in Ruzic surveyed the American jurisprudence and found that
several American authorities adopted a broad and flexible approach to the
defence, despite using the language of immediacy.
[16]
When the matter resumed on December 21, 2015,
the ID member went through the equivalency analysis and noted that in doing so,
the role of the ID is to determine whether the conduct giving rise to the
foreign conviction would constitute an offence in Canada. It is not to assess
whether or not the Applicant may have been convicted of the equivalent
offence if tried in Canada. The ID cited Li v Canada (Minister of
Citizenship and Immigration), [1997] 1 FC 235 (CA) [Li] for the
proposition that what was being examined is the comparability of the offences,
not the comparability of possible convictions in the two countries. The ID
found it sufficient that the offence of wire fraud as set out in 18 USC §1343
would, if committed in Canada, be equivalent to the offence of fraud under section
380(1) of the Criminal Code, RSC, 1985, c C-46, punishable by a maximum
term of imprisonment of 14 years.
[17]
The test for inadmissibility under this
provision of IRPA is one of equivalency. The offence in question must be
sufficiently similar such that the conduct of the Applicant would fall within
the purview of an equivalent Canadian offence. In other words, the ID is to
consider whether the acts committed and punished abroad would have been
punishable here: Lo v Canada (Minister of Citizenship and Immigration),
2002 FCT 1155 at para 37. This involves comparing the wording of the foreign
and domestic statutes, analyzing the evidence to determine whether there is
sufficient evidence to establish the essential ingredient of the offence in
Canada, or a combination of these methods: Hill v Canada (Minister of
Employment and Immigration) (1987), 73 NR 315 at para 16 (FCA).
[18]
It was not unfair for the ID member to base her
decision on the comparison of the two offences. The test for equivalency
considers the sufficiency of the evidence to establish the essential ingredient
of the offence in Canada. However the test does not contemplate the ID weighing
evidence of a possible defence not raised in the foreign jurisdiction in order
to determine whether the impugned conduct would have resulted in a conviction
in Canada.
[19]
The record of the hearing indicates that the ID
member turned her mind to the defence of duress in the two jurisdictions. This
is not a case where the defence of duress was unavailable to the Applicant in
the foreign jurisdiction. Mr. Beltran chose not to raise the defence of duress
in the US proceedings.
[20]
As the ID member correctly stated, it cannot “essentially hold a criminal hearing” to determine if
the defence of duress would have been successful in Canada. See MM v United
States of America, 2015 SCC 62 at para 2.
B.
Did the ID member err by failing to allow Mr.
Beltran to testify?
[21]
Mr. Beltran argues that he was not allowed to
give evidence at the hearing.
[22]
However, there is no indication in the record that
the ID member refused to allow Mr. Beltran to testify.
[23]
The ID member did indicate that she wished to
move the matter along in the interests of expediency, but there is no
indication that counsel for the Applicant made a request for Mr. Beltran to
testify, and that this request was denied.
[24]
Thus, the Applicant’s contention that he was not
permitted to testify is not an accurate account of what transpired.
[25]
No breach of procedural fairness arises on this
basis.
C.
Was the ID member impartial?
[26]
Mr. Beltran submits that the ID member took an
unconventional approach to the hearing, which caused a breach of procedural
fairness. He takes issue with the fact that the ID member chose to recess the
hearing to consider the issue of receiving the documents he sought to introduce
into evidence.
[27]
The ID member is entitled to prescribe
procedures in accordance with its statutory mandate, and is not bound by the
formal procedural requirements of a court. The rules of evidence are likewise
relaxed in the administrative proceeding setting. There is no requirement that
the documentary evidence be formally admitted in any way. Canadian Recording
Industry Assn. v Society of Composers, Authors and Music Publishers of Canada,
2010 FCA 322 at paras 20-21.
[28]
The ID member considered the documents Mr.
Beltran sought to introduce and found that an assessment of the evidence
relevant to duress was unnecessary for the equivalency analysis. The ID member
correctly stated that her role is not to weigh the evidence of a possible
defence of duress in Canada versus the United States, and then compare the
prospect of convictions in both countries. Rather, her task is to consider
whether the conduct of Mr. Beltran gives rise to an equivalent offence in
Canada. The ID found that the United States offence of wire fraud was
equivalent to the offence of fraud under section 380(1) of the Criminal Code,
RSC, 1985, c C-46. Thus, the Applicant’s United States conviction for this
offence would be punishable by a maximum term of imprisonment of 14 years.
[29]
Following this analysis the ID concluded that
Mr. Beltran was inadmissible to Canada on grounds of serious criminality under
paragraph 36(1)(b) of the IRPA. In my view, this conclusion is
reasonable and was reached in a manner that did not breach Mr. Beltran’s rights
of procedural fairness.
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