Date:
20170213
Docket:
IMM-2365-16
Citation: 2017 FC 173
[ENGLISH TRANSLATION]
Ottawa, Ontario, February 13, 2017
PRESENT: The Honourable Mr. Justice Diner
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BETWEEN:
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ROCHENEL
LIBERAL
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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
I.
Nature of the Matter
[1]
This is an application for judicial review under
subsection 72(1) of the Immigration and and Refugee Protection Act, SC
2001, c. 27 [IRPA], of a decision [the decision] by Louis Dubé, a member (member)
of the Immigration and Refugee Protection Board’s Immigration Division [ID].
The member found that the applicant was inadmissible and issued a deportation
order against him under paragraph 36(1)(b) of the IRPA. The member also found that
the evidence filed by the respondent (1) was reliable, (2) had probative value
and was credible, and (3) established that there were reasonable grounds to
believe that the applicant had several aliases, including Predelus, and that he
had been convicted in Florida of serious criminality committed in 1989, under
section 36 of the IRPA.
[2]
The Court considers the member’s findings with
respect to the applicant’s identity to be reasonable. However, the Court finds
that the member erred in his assessment of equivalency. Therefore, the case will
be referred to the ID so it can assess the issue of equivalency alone.
II.
Context
[3]
The applicant, a Haitian citizen, was born on
July 11, 1953, and has lived in Canada since August 3, 2005. He arrived in
Canada via the United States. Before arriving in Canada, he lived in Miami,
Florida, for two years. Upon his arrival in Canada, he filed a refugee claim,
which was denied. He then applied for permanent residency based on humanitarian
and compassionate grounds. This application is still under review.
[4]
On September 15, 2015, the Minister of Public
Safety and Emergency Preparedness [Minister] referred for hearing an
inadmissibility report against the applicant, prepared by the Minister of
Citizenship and Immigration under subsection 44(1) of the IRPA.
[5]
The report, issued on June 29, 2015, concluded
that the applicant was inadmissible for serious criminality because he was
convicted, on February 16, 1990, in Orlando, Florida, in Orange County, for
offences relating to possession and trafficking of cocaine. Considering that
the equivalent crime in Canada carries a maximum sentence of at least ten
years, the report states that there are reasonable grounds to believe that the
applicant is inadmissible for serious criminality under paragraphs 36(1)(b) and
36(2)(b) of the IRPA.
[6]
On April 27, 2016, the member held a hearing on
the investigation referred by the Minister concerning the applicant and
rendered his decision on May 18, 2016. This decision is the subject of this
application for judicial review.
[7]
The member found that the applicant was
inadmissible on the grounds of serious criminality. The member’s decision was based
primarily on the finding that the applicant and a certain individual named
Predelus are the same person, the latter being identified in Florida police and
Federal Bureau of Investigation [FBI] reports.
[8]
In reaching this conclusion, the member considered
the following evidence, which he found to be credible and probative: (a) fingerprint
comparisons between the applicant and the person known as Predelus (taken in
2007 or 2008 and 2014); (b) police reports (FBI, Florida police and the Royal
Canadian Mounted Police [RCMP]); (c) the RCMP’s verification of U.S. law
enforcement’s fingerprint match; (d) physical descriptions of Predelus
contained in documents of U.S. authorities; and the matching of a birthday
between the applicant and Predelus. However, the member did not consider a
photograph of Predelus, a piece of evidence in the record, due to its poor
quality.
[9]
The member also found that the applicant’s testimony
had some credibility issues, thus undermining its probative value, including (i)
the applicant’s explanation as to how he obtained the birth certificates of his
alleged five children and the content of these documents and (ii) several
inconsistencies and improbabilities between the applicant’s testimony and the
evidence, including: the allegation that he reportedly completed one year of
primary school when he was 19 years old; the discrepancy between when he
reportedly left the family farm and obtained his driver’s licence; and the
allegation of being illiterate (given that he could read the birth
certificates). Furthermore, the member found that the children’s birth
certificates did not make note of the applicant’s presence in Haiti at the time
the crimes were committed by Predelus in Florida.
[10]
Finally, the member found that the Minister
established that there were reasonable grounds to believe that the applicant
had been convicted in Florida for an offence that, if committed in Canada,
would constitute an offence under an Act of Parliament punishable by a maximum
term of at least 10 years. The member affirmed the inadmissibility finding
under paragraph 36(1)(b) of the IRPA and thus issued a deportation order
against the applicant.
III.
Analysis
[11]
The applicant submits that the finding with
respect to his identity is unreasonable because the member applied the wrong
standard of proof and did not reasonably weigh the evidence in the record. The
reasonableness standard of review applies to these latter two issues, the first
being a question of mixed fact and law, and the second being a question of fact:
Nguesso v. Canada (Citizenship and Immigration), 2015 FC 879 at para 61.
[12]
The applicant also argued that the ID erred in
its equivalency analysis. This question is also one of mixed fact and law,
subject to the reasonableness standard (Nshogoza v. Canada (Citizenship and
Immigration), 2015 FC 1211 at para 21).
A.
Did the member unreasonably (a) apply the
“reasonable grounds to believe” standard of proof to the matter of identity, or
(b) weigh the evidence in the record?
[13]
Section 33 of the IRPA states that facts arising
from offences under sections 34 to 37 shall be weighed according to the “reasonable grounds to believe” standard. Gagné J., in
Athie v. Canada (The Minister of Public Safety and Emergency Preparedness),
2016 FC 425 at para 46, provided a good explanation of this standard:
To conclude that there are “reasonable
grounds to believe” that the acts attributed to the applicant have occurred,
are occurring or may occur, within the meaning of section 33 of the IRPA, more
than a mere suspicion must exist, but less than proof on a balance of
probabilities. There must be an objective basis for the belief which is based
on compelling and credible information (Mugesera v. Canada (Minister of
Citizenship and Immigration), 2005 SCC 40 (CanLII), [2005] 2 S.C.R. 100, at
paragraph 114; Talavera, above, at paragraph 11).
[14]
In Edmond v. Canada (Citizenship and
Immigration), 2012 FC 674 at para 22, Tremblay-Lamer J. wrote that the scope
of section 33 is non-restrictive and “allows the
Minister to consider the occurrence of a broad range of events and facts,
without restriction in time.”
[15]
Furthermore, it should also be noted that the
primary objective of section 36 is to protect the Canadian public (Casimiro
Santos v. Canada (Citizenship and Immigration), 2013 FC 425 at para 35). To
achieve this objective, the standard of proof applicable to sections 34 to 37
of the IRPA (including inadmissibility for serious criminality) is not necessarily
equivalent to that which would otherwise be applied in a civil (a balance of
probabilities) or criminal (beyond a reasonable doubt) context.
[16]
In Victor v. Canada (Public Safety and
Emergency Preparedness), 2013 FC 979 [Victor], the applicant had
been accused of possessing firearms in New Jersey, in the United States. He
argued before the ID and the RPD that it was a case of mistaken identity, i.e.
that he was not the same person who had been arrested in New Jersey. In
assessing his identity, the ID applied the “reasonable
grounds to believe” standard of proof set out in section 33 of the IRPA
and, from there, found that the applicant and the man in New Jersey were
reasonably the same person (X (Re), 2012 CanLII 100214 (CA IRB) at para
16).
[17]
In this Court, Mr. Victor conceded that a
judicial review based on the reasonableness standard could not produce a
favorable result for him. He did not admit, however, that he was the individual
in New Jersey. However, despite Mr. Victor’s continued denial, Roy J. noted
that the ID’s findings with respect to his identity were reasonable (Victor at
para 20). Although the circumstances in the case at hand are not identical to
Mr. Victor’s case, since the latter did not challenge, per se, the standard of
proof applicable to matters relating to identity, the Court is of the opinion
that the general observations by Roy J. are relevant and useful to this case.
[18]
Therefore, in light of the case law cited, the
Court is of the opinion that the identity in the context of section 36 is a question
of fact subject to the standard of proof set out in section 33, i.e. the “reasonable grounds to believe” standard.
[19]
To conclude my analysis of the applicant
standard of proof, the Court would like to point out that the idea of
dissecting the many facts of a section 36 offence and then applying different
standards of proof makes little sense to me. In my view, had Parliament
intended to impose such an exception, i.e. a standard of proof specific to
identity issues, it would have done so.
[20]
With respect to the second issue, relating to
review of the evidence, the Court finds that the member’s findings are based on
all the evidence in the record, including the fingerprint reports, the
applicant’s testimony, and the other evidence in section II of my Reasons
(Context). In light of all the evidence, the findings with respect to the
applicant’s credibility and the case law cited above, the Court disagrees with
the applicant that the ID erred in finding that there are reasonable grounds to
believe that the applicant is the same person as Predelus.
[21]
In the case at hand, the ID applied the “reasonable grounds to believe” standard of proof to
the question of identity. As addressed above, the member’s analysis relied on some
evidence, both oral and written, to conclude that the applicant had been
convicted in Florida.
[22]
Although counsel for the applicant argued before
the Court, and before the ID, that the results from the fingerprint matching
were unreliable, the Court is of the opinion that in light of all the evidence
in the record, including the RCMP and CBSA reports, as well as the many
improbabilities identified by the member, the panel’s findings are reasonable.
B.
Did the member err in failing to conduct a
comparative review of the constituent elements of the offence committed in the
United States to establish equivalency in Canadian law?
[23]
To determine whether an offence committed abroad
constitutes, were it committed in Canada, an offence under Canadian law, it
must be established that the essential elements of both offences are
equivalent. The Federal Court of Appeals set the guidelines for this analysis
in Hill v. Canada (Minister of Employment and
Immigration), [1987] FCJ No 47 (QL) at para 4 [Hill]:
This Court in the
Brannson case 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. Nor is it necessary in this case. It seems to me that
because of the presence of the words "would constitute an offence ... in
Canada", the equivalency can be determined in 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.
[24]
In Brannson v. Canada (Minister of Employment and Immigration), [1981] 2 FC 141 (WL) to which Hill referred,
the Federal Court of Appeal wrote the following in paragraph 8 of its reasons:
[….] the necessity
for the Adjudicator to determine whether the offence for which the applicant
was convicted would constitute an offence if committed in Canada, requires, at
least in circumstances where the scope of the offence is narrower in compass
than that in the foreign jurisdiction, ascertainment of particulars of the
offence for which the person concerned was convicted. It is neither possible
nor desirable to lay down in general terms the requirements applicable in every
case. Suffice it to say that the validity or the merits of the conviction is
not an issue and the Adjudicator correctly refused to consider representations
in regard thereto. However, she did have the obligation to ensure that the
conviction in issue arose from acts which were encompassed by the provisions of
section 19(2) (a). This she failed to do.
[25]
The panel’s requirements for equivalency
analysis established by the Federal Court of Appeal were not satisfied in this
case. In the case at hand, the member found in a single paragraph that the
wording and constituent elements of U.S. offence 893.13 in the Florida Statutes
were analogous to drug trafficking under the Controlled Drugs and
Substances Act, S.C. 1996, c. 19, without explanation, description or
reasonable comparison. The member noted the following in that paragraph:
[TRANSLATION]
[27] The wording of U.S. offence 893.13 of
the Florida Statutes [Exhibit C-8] and the offence in Canada is similar,
and the main constituent elements are very similar. Equivalency between both
offences is therefore established.
[26]
Exhibit C-8 is a copy of chapter 893 of the 2015
Florida Statutes.
[27]
I note that a 1997 version of said legislation
is found in Exhibit C-11 in the certified tribunal record. However, the member
did not refer to this version; moreover, it is unclear whether the 1997 version
was the one in force when the individual named Predelus committed the offences
in 1989. Furthermore, it is clear from the case law that the ID did not
reasonable assess how equivalency between the two offences would be
established.
[28]
In Nshogoza v. Canada (Citizenship and
Immigration), 2015 FC 1211 at para 31 [Nshogoza], Gascon J. wrote
that that while the equivalency analysis may be brief, the constituent elements
of the foreign and Canadian offences must at least be described and the
references to the applicable provisions must be specific.
[29]
Likewise, Heneghan J. held that without evidence
in the record and without reasons explaining the administrative
decision-maker’s equivalency findings, the criteria of transparency and
intelligibility fail to be satisfied (Kathirgamathamby v. Canada (Citizenship
and Immigration), 2013 FC 811 at para 24 [Kathirgamathamby]).
[30]
Moreover, as McVeigh J. clearly explained in Moscicki
v. Canada (Citizenship and Immigration), 2015 FC 740 at para 28:
The 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.
Consequently, the equivalence is between the provisions and not the
comparability of possible convictions. Furthermore, the equivalence analysis
allows for different statutory wording (Brannson, above).
[31]
In paragraph 27 of his reasons reproduced above,
the member found that the main constituent elements were very similar. He
therefore concluded that equivalency had apparently been established by
applying the first test in Hill. This finding is unreasonable for two
reasons. First, the member cited the 2015 Act without analyzing that which was
in force at the time of the criminal conviction in Florida. Second, the member
had to explain how the main constituent elements were similar.
[32]
A mere reference to the relevant provisions,
followed by a brief statement regarding their equivalency, is not a reasonable
analysis. To support this finding, the Court reiterates the comments of Gascon
J., who, in Nshogoza at
para 27, clearly summarized the law in that area:
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..
[33]
The fact that the member gave few words to this
part of his reasons may be related to the fact that counsel for the applicant
paid little attention to the issue of equivalency before the ID. Specifically,
the member wrote the following in paragraph 16 of his reasons:
[TRANSLATION]
In conclusion of his oral arguments, Mr. Kasenda
Kabemba did not accept the equivalency between the U.S. and Canadian offences,
without explaining why. He did not consider it necessary to elaborate on this
subject because his client and Predelus are two different people.
[34]
Despite the fact that counsel for the applicant
did not want to address the issue of equivalency before the ID, the latter is
still required to provide transparent and justifiable reasons (Kathirgamathamby at para 24). The Court finds that the ID erred in this respect and that this
error is material.
IV.
Conclusions
[35]
The application is allowed. The matter will be
referred to the ID for reassessment of the equivalency review, which must be in
accordance with the requirements set out by the case law.
JUDGEMENT
THIS COURT’s
JUDGMENT is that:
1.
The application for judicial review is allowed
and the matter will be referred to the ID for reassessment of the equivalency
issue;
2.
No question for certification was proposed by
the parties, and none arises from this application;
3.
There is no order as to costs.
“Alan S. Diner”
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