Date: 20061127
Docket: IMM-2398-06
Citation: 2006 FC 1434
Ottawa, Ontario, November 27,
2006
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
EDUARDO
VILLANEUVA PEREZ
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
This
judicial review of a decision of the Immigration Division of the Immigration
and Refugee Board (Board) holding the Applicant inadmissible on grounds of
serious criminality turns on the failure to grant an adjournment. Did the
refusal to adjourn constitute a breach of procedural fairness?
II. BACKGROUND
[2]
The
Applicant, a Mexican national, was convicted in the United States of conspiracy
to distribute methamphetamine in violation of Title 21 USC 846, of possession
of methamphetamine with intent to distribute pursuant to Title 21 USC
841(a)(1), mail fraud as well as aiding and abetting.
[3]
He
entered Canada with a work
permit which was issued in error and then rescinded. He was then referred to
the Board for an admissibility hearing pursuant to s. 44(1) of the Immigration
and Refugee Protection Act:
|
44. (1) An
officer who is of the opinion that a permanent resident or a foreign national
who is in Canada is inadmissible may prepare a report setting out the
relevant facts, which report shall be transmitted to the Minister.
|
44. (1) S’il estime que le résident permanent ou l’étranger qui se trouve
au Canada est interdit de territoire, l’agent peut établir un rapport
circonstancié, qu’il transmet au ministre.
|
[4]
Prior
to the hearing, the Respondent provided the Applicant with the “Report under
s. 44(1)”. The salient part of the Report states that the Applicant:
… was convicted under the name Eduardo
Villaneuva Perez in the United States District Court in the Southern District
of California for the offense of conspiracy to distribute methamphetamine,
in violation of Title 21 United States Code, sections 846 and 841(A)(1). An
offence that if committed in Canada would constitute the offence possession for
the purpose of trafficking as described in section 5(2) of the Controlled Drugs
and Substances Act, an indictable offence and liable to imprisonment for a term
not exceeding ten years.
(Emphasis added)
[5]
At
the hearing the Applicant’s counsel and the Board discussed whether the s. 44 Report
listed only the offence of conspiracy to distribute and whether the Respondent
could proceed also on the grounds of possession with intent.
[6]
As
the Respondent intended to proceed on the grounds of both charges, the
Applicant’s counsel objected and requested an adjournment so that he could
prepare for the issues related to “possession with intent to distribute”. That
adjournment was denied.
[7]
The
Board concluded that the Applicant was inadmissible. That determination was
principally focused on the issues of possession.
[8]
While
the Applicant has raised both the procedural fairness issue and the error of
law on admissibility, this case can be disposed of on the first issue.
III. ANALYSIS
[9]
The
issue of procedural fairness actually turns on the classification of the
adjournment request – was it based on the legal determination as to an absence
of notice or was it the exercise of discretion by the Board?
[10]
The
s. 44 Report, while referring to two sections of the United States Code,
specifically mentions the singular offence “the offence of conspiracy to
distribute methamphetamine”. It reiterates the singular offence in the next
sentence of the relevant portion of the Report – “An offence that if committed
in Canada would constitute the offence possession for the purpose of
trafficking as described in section 5(2) of the Controlled Drugs and Substances
Act, an indictable offence and liable to imprisonment for a term not exceeding
ten years”.
[11]
The
Applicant’s counsel claimed he was led to believe from the s. 44 Report that
the Respondent relied on only the conspiracy offence for purposes of the
analysis of equivalency between Canadian and U.S. criminal
provisions.
[12]
His
contention, quite apart from accepting his word as an officer of the Court
which I do, is supported by the Book of Authorities he had prepared which was
all directed at conspiracy.
[13]
Since
the misunderstanding was sincere, the issue then is was it reasonable? In my
view, the wording of the s. 44 Report was sufficiently unclear as to support
the reasonableness of the assertion that the Applicant did not have proper
notice of the issues which he was required to address.
[14]
Had
this been a question of an adjournment rather than one of proper notice, great
deference would be owed to the Board. Its decision to deny the Respondent’s
request to adjourn in order that more senior counsel could participate is just
the type of decision to which deference is owed.
[15]
The
Respondent contends that in view of the Applicant’s guilty plea, the result of
any admissibility hearing is a foregone conclusion and therefore the matter
should not be referred back to the Board. The Respondent may be correct as to
the ultimate disposition but there is no certitude as to this conclusion and
the Applicant is entitled to his opportunity to address all the issues.
[16]
Therefore,
this judicial review will be granted, the Board’s decision quashed and the
matter referred back to be determined by a differently constituted panel of the
Board. There is no question for certification.
JUDGMENT
IT IS ORDERED THAT this
application for judicial review is granted, the Board’s decision is quashed and
the matter is referred back to be determined by a differently constituted panel
of the Board.
“Michael
L. Phelan”
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