Docket: IMM-1632-17
Citation:
2017 FC 1062
Ottawa, Ontario, November 23, 2017
PRESENT: The
Honourable Madam Justice McVeigh
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BETWEEN:
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SKENDER HALILAJ
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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.
Introduction
[1]
In 2005, the Applicant, Mr. Skender Halilaj, was
convicted of attempted intentional murder by a Kosovo court. He arrived in
Canada in 2015 where, due to his foreign conviction, the Immigration Division
[ID] found him inadmissible under section 36(1)(b) of the Immigration and
Refugee Protection Act, SC 2001, c 27 [IRPA].
[2]The Applicant applied to this Court for a judicial review of that
decision, which means he must show the decision is unreasonable or his right to
procedural fairness was breached. Because the ID decision is intelligible,
justifiable, and transparent in its reasons, applied the correct law, and did
not err in its equivalency analysis, I will dismiss this application for the
reasons that follow.
II.
Background
[3]
The Applicant is a citizen of Kosovo who came to
Canada on July 11, 2015. On August 21, 2015, the Applicant made a claim for
refugee protection but he was found inadmissible on August 27, 2016, after it
was determined he fell under section 36(1)(b) of the IRPA for serious
criminality.
[4]
The hearing took place before a member of the ID
where the Applicant admitted he is a foreign national and that he had been
convicted in Kosovo of attempted intentional murder on April 7, 2005. The
conviction was related to an incident that occurred in 1998 when the Applicant was
a member of the Kosovo Liberation Army. Namely, while the Applicant was on duty
at a check stop, shots were fired at a Serbian soldier named Hamez Hajra. Mr.
Hajra was unarmed in the attempt on his life, and the Applicant was not charged
at the time.
[5]
A second incident occurred, on August 20, 2001. Mr.
Hajra was murdered along with most of his family, save one daughter. The Applicant
was then charged with both the 1998 attempted murder, 2001 attempt on Mr. Hajra’s
daughter and the 2001 murder of Mr. Hajra and his family members (wife and
three children).
[6]
In 2006, a trial court in Kosovo convicted the
Applicant of attempted murder for the 1998 incident and for the murders of Mr.
Hajra and his family members and the attempted murder of Pranvera Hajra, the
daughter that survived the 2001 incident. He was also convicted of
participation in a group that commits a murder and agreement to commit a
murder. He was sentenced to 30 years’ incarceration for these convictions. The
Applicant appealed these convictions.
[7]
The appeal was heard on May 20, 2008, before the
Supreme Court of Kosovo. Because Kosovo was under interim administration
following the breakup of Yugoslavia, the Supreme Court of Kosovo panel was
composed of five judges; three international judges and two Kosovo national judges.
The appeal decision, issued on October 12, 2009, upheld the 1998 conviction but
overturned the convictions in relation to the 2001 incident. The Applicant was
sentenced to five years, of which he had already served the time.
[8]
The Applicant was unable to obtain the 2008
Kosovo trial decision for the admissibility hearing and noted that there is a
page missing from the 2009 appeal decision. The Applicant also submitted an
expert opinion written by criminal lawyer Hersh Wolch about the differences
between the Kosovo law and the Canadian law. Mr. Wolch based his opinion on
information provided to him by the Applicant’s counsel. In addition, through a
translator, the Applicant gave oral testimony at the hearing.
[9]
The ID member determined the question before him
was whether “Mr. Halilaj [was] convicted in Kosovo for
an offence that would equate to a paragraph 36(1)(b) offence in Canada?”
The ID released its decision on that question on March 20, 2017. The decision
found the Applicant is inadmissible for serious criminality under section
36(1)(b) of the IRPA.
III.
Issues
[10]
The issues presented by the Applicant are:
- Did the decision
maker come to unreasonable findings of fact in determining that the elements
of the underlying offence had been proven?
- In finding the
Applicant inadmissible to Canada, did the decision maker err in law in
determining that the Kosovo conviction equated to a conviction in Canada?
IV.
Standard of Review
[11]
The standard of review for decisions made under
section 36(1)(b) of the IRPA is reasonableness. The ID is afforded a high level
of deference (Moscicki v Canada (Minister of Citizenship and Immigration),
2015 FC 740 at paras 13-14 [Moscicki]; Abid v Canada (Minister of Citizenship
and Immigration), 2011 FC 164 at para 11).
[12]
Errors of law made by the ID are reviewed for correctness
(Dunsmuir v New Brunswick, 2008 SCC 9 at para 50 [Dunsmuir]).
V.
Analysis
[13]
The relevant provisions of the IRPA are as
follows:
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Inadmissibility
Rules of interpretation
33 The facts that constitute
inadmissibility under sections 34 to 37 include facts arising from omissions
and, unless otherwise provided, include facts for which there are reasonable
grounds to believe that they have occurred, are occurring or may occur.
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Interdictions de territoire
Interprétation
33 Les faits — actes ou omissions
— mentionnés aux articles 34 à 37 sont, sauf disposition contraire, appréciés
sur la base de motifs raisonnables de croire qu’ils sont survenus,
surviennent ou peuvent survenir.
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Serious criminality
36 (1) A permanent resident or a
foreign national is inadmissible on grounds of serious criminality for
(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;
(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
(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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Grande criminalité
36 (1) Emportent interdiction de
territoire pour grande criminalité les faits suivants :
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;
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;
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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Application
36 (3) The following provisions
govern subsections (1) and (2):
(…)
(c) the matters referred to in
paragraphs (1)(b) and (c) and (2)(b) and (c) do not constitute
inadmissibility in respect of a permanent resident or foreign national who,
after the prescribed period, satisfies the Minister that they have been
rehabilitated or who is a member of a prescribed class that is deemed to have
been rehabilitated;
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Application
36 (3) Les dispositions suivantes
régissent l’application des paragraphes (1) et (2) :
(…)
c) les faits visés aux alinéas
(1)b) ou c) et (2)b) ou c) n’emportent pas interdiction de territoire pour le
résident permanent ou l’étranger qui, à l’expiration du délai réglementaire,
convainc le ministre de sa réadaptation ou qui appartient à une catégorie
réglementaire de personnes présumées réadaptées;
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A.
Did the decision maker come to unreasonable
findings of fact in determining that the elements of the underlying offence had
been proven?
[14]
The Applicant argued the ID’s decision is
unreasonable for three reasons. The first being that the ID unreasonably found he
committed the essential ingredients of the equivalent Canadian offence. The
Applicant argued this is an unreasonable finding because instead of evidence,
the ID used the Kosovo appeal decision to conduct an equivalency analysis. Because
there was no trial decision available, the ID had to review the evidence, not
the appeal decision. He submits the evidence available at the ID does not prove
attempted murder beyond a reasonable doubt because there is no evidence of
specific intent, a required element of attempted murder.
[15]
Secondly, the Applicant submits this is an unreasonable
decision because the ID overlooked relevant evidence. Specifically, the Applicant
argues the ID overlooked the fact that the Kosovo court system did not meet
international standards of due process, especially in cases of inter-ethnicity.
[16]
Third, the Applicant’s final argument regarding
the decision’s reasonableness is that the Kosovo crime allows for constructive
murder which is unconstitutional in Canada. The Applicant says the decision is
therefore unreasonable because he could not be convicted of an unconstitutional
offence in Canada.
[17]
I do not agree with the Applicant’s arguments.
For the reasons below, I find that the decision maker’s equivalency analysis
and decision was reasonable.
(1)
Court of Appeal decision not evidence
[18]
The Applicant submitted that the Appeal Court
decision is not “evidence” which is called for
in the legislation. The Applicant argued that the equivalency test is not met
because the ID did not have actual evidence or the Kosovo trial transcript.
[19]
I find that this argument calls for an
interpretation that is too literal a reading of the section. An international
appeal court decision that sat in appeal of a trial decision is acceptable to
use in an equivalency analysis under section 36(1)(b) of the IRPA.
[20]
The test is not for the ID to do a mock trial as
if in Canada to determine if the Applicant would be convicted by a Canadian
court using the beyond a reasonable doubt standard of proof. I looked to a
decision of mine, Moscicki, which explains at paragraph 28: “[t]he key point is that it is not necessary for the Board to
determine whether there was sufficient evidence for an actual conviction in Canada.
It is whether there are reasonable grounds to believe that the Applicant
would be convicted if the same act were committed in Canada” [emphasis
in original].
[21]
It went undisputed that the Applicant had been
convicted of this crime, and that this crime met the section 36(1)(b)
punishment requirement of at least 10 years imprisonment. It is not
unreasonable that, after a review of the appeal decision as well as the
Applicant’s own evidence, the ID found reasonable grounds that the Applicant
would have been convicted of the equivalent Canadian offence.
B.
In finding the Applicant inadmissible to Canada,
did the decision maker err in law in determining that the Kosovo conviction
equated to a conviction in Canada?
[22]
At the hearing the Applicant argued the ID
should not recognize the conviction because the Kosovo procedure could not ever
take place under Canadian law. For example, joinder of the cases would not have
occurred in Canada. The Applicant’s position is that an examination of the
Kosovo legal process is a necessary part of an equivalency analysis.
[23]
Although the FCA in Li v Canada (Minister of
Citizenship and Immigration), [1996] FCJ 1060 (FCA) at paragraph 25 [Li]
was clear that “[t]he Act does not contemplate a retrial
of the case applying Canadian rules of evidence. Nor does it contemplate an
examination of the validity of the conviction abroad,” the Applicant
urged me (as he argued before the ID) to disregard Li which is the
leading case on this issue.
[24]
The Applicant says this Court should not apply Li
because of the low procedural standards in Kosovo. Instead, the Applicant
argued (both at the ID and to me) that this Court should apply Biro v Canada
(Minister of Citizenship and Immigration), 2005 FC 1428 [Biro] which
deals with procedural fairness issues.
[25]
Justice Gascon summarized the applicable law in Nshogoza
v Canada (Minister of Citizenship and Immigration), 2015 FC 1211:
27 The only question to determine is whether the Officer's equivalency
findings and her resulting inadmissibility conclusions are reasonable. In Lu,
the Court explained the methods of the equivalency analysis to be undertaken by
an immigration officer (at para 14). Citing Hill v Canada (Minister of
Employment and Immigration), [1987] FCJ No 47
(FCA) at page 320, Mr. Justice Pinard stated that equivalency between offences
can be determined in three ways: (i) "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"; (ii) "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"; or (iii) by a combination of one these two approaches.
28 The Court must further look at the similarity of definition of the
two offences being compared and the criteria involved for establishing the
offences (Li v Canada (Minister of Citizenship and Immigration), [1996] FCJ No 1060
(FCA) [Li] at para 18). As explained by Mr. Justice Strayer, "[a]
comparison of the "essential elements" of the respective offences
requires a comparison of the definitions of those offences including defences
particular to those offences or those classes of offences" (Li at
para 19). In Brannson v Canada (Minister of Employment and Immigration),
[1981] 2 FC 141 (FCA) at para 38, the Federal Court of Appeal further stated
that the essential elements of the relevant offences must be compared, no
matter what are the names given to the offences or the words used in defining
them.
[26]
I do not agree that the ID erred by following
the FCA in Li as it is the law.
[27]
On our facts the ID’s equivalency analysis
started with the test in Hill v Canada (Minister of Employment and
Immigration), [1987] FCJ No 47 (FCA) [Hill]. Using the second Hill
method, the ID found the Canadian provision for attempt murder requires the
elements of 1) specific intent of killing the victim; and 2) some steps taken
toward that objective beyond mere preparation.
[28]
Referring to the Kosovo decisions, the ID found
the essential elements of the Canadian offence in the Kosovo conviction.
Namely, that the Applicant waited in ambush, fired at the victim’s car, and had
the intent to kill the victim.
[29]
Despite this conclusion, out of an “abundance of caution”, the ID conducted a Biro analysis
to see if procedural fairness issues had impacted the conviction. The ID found
the issues concerning the Applicant were already brought up and sufficiently
addressed by the Kosovo courts whose decisions were “thorough,
thoughtful and reasonable.” Therefore, even under the Biro analysis,
the ID found there were no fairness issues.
[30]
I find that the ID used the correct test and was
reasonable in the assessment of the evidence before it. In support of my
finding that Biro is not the appropriate test regarding fairness of
other judicial systems, I rely on Li where the FCA followed what the SCC
already had determined and quoted Justice La Forest who said “[t]he judicial process in a foreign country must not be
subjected to finicky evaluations against the rules governing the legal process
in this country.” This confirms that it is not the role of the ID to
examine another country’s judicial system and apply our Charter or our rules of
procedural fairness.
[31]
The ID, as shown above, was clear and
transparent during the equivalency analysis. The ID went even further and
looked at the process as instructed in Biro and yet found that the
Kosovo system was fair. Even the Applicant’s own expert stated that the
equivalency is the Canadian offence of attempted murder. The FCA in Li
is specific in this regard, and holds the ID is not to retry the case as if it
was in Canada with all the Charter rights as that is not the law passed by
parliament. For that reason this argument too must fail.
[32]
Reasonableness requires that the decision must
exhibit justification, transparency and intelligibility within the decision
making process and the decision must also be within the range of possible,
acceptable outcomes, defensible in fact and law (Dunsmuir; Canada (Minister
of Citizenship and Immigration) v Khosa, 2009 SCC 12). I find that this
decision is reasonable and I will dismiss the application.
VI.
Certified Question
[33]
The Applicant submitted these as certified questions:
“What is the threshold for a foreign
conviction to be recognized by Canadian Immigration Authorities under Section
36(1) (b) of the Immigration and Refugee Protection Act;” or
“What is the legal test to determine whether
a foreign conviction should be recognized by Canadian Immigration Authorities
under Section 36(1)(b) of the Immigration and Refugee Protection Act?”
[34]
A certified question must be a question of
general importance. This means the question “transcends
the interests of the immediate parties to the litigation and contemplates issues
of broad significance or general application” (Liyanagamage v Canada
(Minister of Citizenship and Immigration) (1994), 176 NR 4 at para 4 (FCA)).
The question must also be dispositive of the appeal (Zazai v Canada (Minister
of Citizenship and Immigration), 2004 FCA 89 at para 11).
[35]
The Applicant argued that since section 36(1)(b)
of the IRPA was created with Canadian values in mind, any analysis of section
36(1)(b) of the IRPA should consider procedural fairness if the relevant conviction
occurs in a country without Canada’s level of human rights and procedural
fairness protections in its judicial system.
[36]
The Respondent did not submit a question and
argued the Applicant’s questions should not be certified as this matter had
already been determined so was not of general importance.
[37]
I will not certify these questions because the
question of threshold was already answered by the FCA and found not to be part
of the legal test. The FCA jurisprudence holds “the validity
or the merits of the conviction is not an issue” (Brannson v Canada
(Minister of Employment and Immigration) (1980), [1981] 2 FC 141 (CA) at 145
[Brannson].
[38]
Despite Li and Brannson, the Applicant
has argued that section 36(1)(b) of the IRPA was created with Canadian values
in mind, and when the level of procedural unfairness is especially high there
should be a threshold for foreign convictions. Yet creating different
thresholds would imply that procedural unfairness in other courts—including
American courts (such as the issues faced by Mr. Brannson)—are somehow less
important (see also the procedural unfairness issue in Park v Canada
(Minister of Citizenship and Immigration) (1998), 146 FTR 42 (FC)). The FCA
in Li and Brannson has already made a determination in this
regard; the merits of the conviction outside of Canada are not part of the
equivalency test.
[39]
In this case the question would also not be dispositive.
The ID performed a Biro analysis out of an abundance of caution, and
examined whether the Applicant’s right to procedural fairness was breached. The
ID found it was not. Therefore, even if the question was certified and answered
in the positive, it would not affect the Applicant’s appeal.
[40]
The certified questions do not meet the test.
They are not questions of general importance as they do not transcend the
interests of the parties, they are not issues of broad significance or general
application, and they are not dispositive of this case.
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