Docket: A-208-14
Citation:
2015 FCA 21
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CORAM:
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NOËL C.J.
DAWSON
J.A.
TRUDEL J.A.
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BETWEEN:
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TONG SANG LAI
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Appellant
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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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REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Vancouver, British Columbia, on January 27, 2015).
DAWSON J.A.
[1]
A member of the Immigration Division of the
Immigration and Refugee Board of Canada found the appellant to be inadmissible
to Canada pursuant to paragraph 37(1)(a) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (Act). In the member’s view, there
were reasonable grounds to believe:
a)
the appellant was a member of the Shui Fong
triad in Macau; and
b)
it was believed on reasonable grounds that the
Shui Fong triad engaged in activity that is part of a pattern of criminal
activity planned and organized by a number of persons acting in concert in
furtherance of the commission of an offence outside Canada that, if committed
in Canada, would constitute an offence punishable under an Act of Parliament by
way of indictment.
[2]
For reasons cited as 2014 FC 258, a judge of the
Federal Court dismissed an application for judicial review of that decision.
The Judge certified the following question:
In section 37(1)(a) of the Immigration
and Refugee Protection Act, does the phrase “in furtherance of the
commission of an offence outside Canada that, if committed in Canada, would
constitute such an offence” require evidence of the elements of a specific
foreign offence and an equivalency analysis and finding of dual criminality
between the foreign offence and an offence punishable under an Act of
Parliament by way of indictment.
[3]
In our view, the determinative issue on this
appeal is whether the Judge properly exercised his discretion to certify the
question. By direction dated January 8, 2015, the Chief Justice directed that
counsel for the parties be ready to address the propriety of the certified
question at the outset of the hearing of this appeal.
[4]
It is well-settled law that a question should be
certified only if it is a serious question of general importance which would be
dispositive of an appeal. A certified question must have been raised and dealt
with in the Federal Court; a certified question is not to be a reference of a
question to this Court (Zazai v. Canada (Minister of Citizenship and
Immigration), 2004 FCA 89, 318 N.R. 365; and Varela v. Canada (Minister of Citizenship and Immigration), 2009 FCA 145, [2010] 1 F.C.R. 129).
[5]
In Brannson v. Canada (Minister of Employment and Immigration), [1981] 2 F.C. 141, 34 N.R. 411
(F.C.A.D.), this Court considered how an adjudicator should go about equating
an offence committed abroad with an offence under the laws of Canada when
considering inadmissibility on grounds of criminality.
[6]
Justice Urie began his analysis by noting that
an adjudicator must be satisfied on the evidence that the constituent elements
of a foreign offence would constitute an indictable offence in Canada (as more specifically described in the then applicable legislation). Justice Urie
went on to note that some offences by their very nature would require only
limited proof of this.
[7]
To similar effect, in Hill v. Canada (Minister of Employment and Immigration), [1987] F.C.J. No. 47, 1 Imm.
L.R. (2d) (F.C.A.D.), Justice Urie observed that in Brannson the Court “did not limit the determination of so-called ‘equivalency’ of
the paragraph of the Code, there in issue, to the essential ingredients of any
offence specifically spelled out in the statute being compared therewith.”
[8]
In the present case, the Judge concluded that
there was a requirement that the Immigration Division
“consider equivalency between the law of the foreign jurisdiction in which the
alleged offence was committed, and the appropriate laws of Canada”. That said, the Judge went on to note that “[h]owever, where
the alleged offences are such that, regardless of the jurisdiction, most
civilized countries would have laws condemning such an offence, it would be
ludicrous to expect that expert evidence would have to be led in such a case”
(reasons, at paragraph 20).
[9]
With respect to the case before him, the Judge
concluded that the record before the Immigration Division
“shows abundant evidence that Triads in Macau were engaged in a number of
activities that any civilized country would find to be illegal and indictable;
including cold-blooded murder in public, extortion, assault, and more. A
discrete analysis was unnecessary” (reasons, at paragraph 25). We agree,
and find the Judge’s conclusion to be consistent with the prior jurisprudence
of this Court.
[10]
In this circumstance, the question certified by
the Judge was not dispositive of the appeal. An issue that need not be decided,
in this case a discrete comparative analysis of the specific elements of foreign
and domestic offences, can never be an issue that grounds a properly certified
question.
[11]
Subsection 74(d) of the Act provides that
an appeal lies to this Court from the Federal Court only where a serious
question of general importance has been stated. In consequence, where there is
no serious question of general importance, the condition precedent to a right
of appeal has not been met and the appeal should be dismissed on that ground (Varela,
at paragraph 43).
[12]
It follows that the appeal will be dismissed.
“Eleanor R. Dawson”
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