Date: 20010108
Docket: IMM-2322-00
BETWEEN:
STÉPHAN ABRASSART
Plaintiff
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
REASONS FOR ORDER
NADON J.
[1] The plaintiff is challenging a decision of the visa officer Amitys Sala made on March 24, 2000.
[2] The visa officer rejected the plaintiff's application for permanent residence on the ground that the latter belonged to a class of persons inadmissible to Canada, namely that described in s. 19(2)(a.1)(ii) of the Immigration Act ("the Act").
[3] The plaintiff is a national of Belgium. On December 23, 1997 he was convicted in his country by the Mons police court, first division, for driving a vehicle in a public place on July 25, 1997 while in a state of intoxication, that is, the blood sample showed a concentration of alcohol of at least 0.8 grams per litre of blood.
[4] In view of the conviction by the Belgian court, the visa officer concluded that the plaintiff had committed an offence which, if committed in Canada, could be punishable by imprisonment for a term not exceeding ten years under ss. 253(b) and 255 of the Criminal Code.
[5] Consequently, the visa officer concluded pursuant to s. 19(2)(a.1)(ii) of the Act that the plaintiff was inadmissible to Canada. It should be noted that the plaintiff's exclusion actually results from s. 19(2)(a.1)(i). The relevant provisions of the Act and Criminal Code read as follows:
19. (2) No immigrant and, except as provided in subsection (3), no visitor shall be granted admission if the immigrant or visitor is a member of any of the following classes:
. . . . .
(a.1) persons who there are reasonable grounds to believe
(1) have been convicted outside Canada of an offence that, if committed in Canada, would constitute an offence that may be punishable by way of indictment under any Act of Parliament by a maximum term of imprisonment of less than ten years, or
(2) have committed outside Canada an act or omission that constitutes an offence under the laws of the place where the act or omission occurred and that, if committed in Canada, would constitute an offence that may be punishable by way of indictment under any Act of Parliament by a maximum term of imprisonment of less than ten years . . .
253. Every one commits an offence who operates a motor vehicle . . .
(b) having consumed alcohol in such a quantity that the concentration in the person's blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood.
255. (1) Everyone who commits an offence under section 253 or 254 is guilty of an indictable offence or an offence punishable on summary conviction and is liable,
(a) whether the offence is prosecuted by indictment or punishable on summary conviction, to the following minimum punishment, namely,
(i) for a first offence, to a fine of not less than three hundred dollars,
(ii) for a second offence, to imprisonment for not less than fourteen days, and
(iii) for each subsequent offence, to imprisonment for not less than ninety days;
(b) where the offence is prosecuted by indictment, to imprisonment for a term not exceeding five years; and
(c) where the offence is punishable on summary conviction, to imprisonment for a term not exceeding six months.
[6] The plaintiff admitted that the offence of alcoholemia for which he was convicted in Belgium is equivalent to that mentioned in s. 253(b) of the Criminal Code and that the sentence for this offence is that described in s. 255 of the Criminal Code.
[7] The plaintiff's position is quite straightforward. He argued that despite the fact that the offence he committed was equivalent to the offence of impaired driving described in s. 253(b) of the Criminal Code, that offence could not be regarded as an offence which "if committed in Canada, would constitute an offence that may be punishable by way of indictment under any Act of Parliament by a maximum term of imprisonment of less than ten years".
[8] The plaintiff submitted that since the judgment of the Belgian court found no aggravating circumstances, if he had been tried in Canada for this offence he would have been tried by summary procedure, not by indictment.
[9] The defendant's argument was that the visa officer made no error in concluding as he did. In support of that argument the defendant relied on the judgment of my brother Muldoon J. in Ruparel, [1990] 3 F.C. 615.
[10] The facts in that case were similar to those in the case at bar in that Mr. Ruparel, a national of the United Kingdom, was convicted of driving while intoxicated. He was sentenced to pay a fine of 225 pounds sterling and his driving licence was suspended for a year.
[11] His application for permanent residence in Canada was denied on the ground that he was one of the cases covered by s. 19(2)(a)(i) of the Immigration Act, 1976, which reads as follows:
| 19. ...
(2) No immigrant and, except as provided in subsection (3), no visitor shall be granted admission if he is a member of any of the following classes:
(a) persons who have been convicted of an offence that, if committed in Canada, constitutes or, if committed outside Canada, would constitute an offence that may be punishable by way of indictment under any other Act of Parliament and for which a maximum term of imprisonment of less than ten years may be imposed, except persons who have satisfied the Minister that they have rehabilitated themselves and that
(i) in the case of persons who were convicted of any such offence when they were twenty-one or more years of age, at least five years have elapsed since the termination of the sentence imposed for the offence, or
(ii) in the case of persons who were convicted of any such offence when they were less than twenty-one years of age, at least two years have elapsed since the termination of the sentence imposed for the offence:
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19. ...
(2) Ne peuvent obtenir l'admission, les immigrants et, sous réserve du paragraphe (3), les visiteurs qui
a) ont été déclarés coupables d'une infraction qui constitue, qu'elle ait été commise au Canada ou à l'étranger, une infraction qui peut être punissable par voie d'acte d'accusation, en vertu d'une autre loi du Parlement, d'une peine maximale de moins de dix ans d'emprisonnement, à l'exception de ceux qui établissent à la satisfaction du Ministre qu'ils se sont réhabilités et:
(i) qu'au moins cinq ans se sont écoulés depuis la date de l'expiration de leur peine, au cas où l'auteur était âgé d'au moins vingt et un ans lors de la déclaration de culpabilité, ou
(ii) qu'au moins deux ans se sont écoulés depuis la date de l'expiration de leur peine, au cas où l'auteur était âgé de moins de vingt et un ans lors de la déclaration de culpabilité:
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[12] Muldoon J. dealt with this matter as follows, at 623 to 625:
It regrettably appears that the applicant was convicted in the U.K. of an offence which, if committed in Canada, constitutes an offence under any other Act of Parliament, the Criminal Code. But is it an offence in Canada which "may be punishable by way of indictment under" the Criminal Code? Alas, it is. Section 255 [as am. by R.S.C., 1985, (1st Supp.), c. 27, s. 36] of the Code in part provides . . .
This is a "hybrid offence" with Crown option as to manner of proceeding.
Now it would seem highly unlikely that the Crown would have proceeded by way of indictment, if the applicant had committed the offence in Canada. Luckily, he seems to have caused no death, no personal injuries and no property damage. Nevertheless, it is the terms of paragraph 19(2)(a) which govern, as enacted . . .
They do not speak of or exempt an offence which probably would have been charged as a summary conviction offence, nor yet of a hybrid offence which could possibly have been charged by indictment. On the contrary, in paragraph 19(2)(a) of the Act, Parliament most articulately and unambiguously speaks of "an offence that may be punishable by way of indictment under any other Act of Parliament" [emphasis added] and that emphasized expression includes, of course, an offence which may possibly not be punishable by way of indictment, but rather by way of summary conviction proceedings, as is found in section 253 of the Criminal Code.
[13] Unfortunately for the plaintiff, I consider that Muldoon J.'s remarks apply squarely to the case at bar.
[14] The defendant also referred me to the decision I rendered in Ngalla (1998), 152 F.T.R. 184. In that case, the plaintiff's application for permanent residence was denied on the ground that she was inadmissible under s. 19(2)(a) of the Act, as she was found guilty of theft pursuant to s. 334(b)(ii) of the Criminal Code.
[15] As in the case at bar, that was a hybrid offence: that is to say, counsel for the Crown could in his discretion prosecute the plaintiff by a summary proceeding or by indictment. In paras. 3, 4 and 10 of my reasons, I said the following:
[3] The applicant was found to be inadmissible because she had been found guilty of theft pursuant to paragraph 334(b)(ii) of the Criminal Code: theft "where the value of what is stolen does not exceed one thousand dollars". The applicant was given a suspended sentence and placed under probation for 180 days. It is important to point out that section 334 of the Criminal Code provides that where the value of the stolen property does not exceed $1,000.00, the accused person may be prosecuted by way of indictment or by way of a summary proceeding. The applicant was prosecuted and found guilty by way of a summary proceeding. The choice of proceeding is at the discretion of the Crown prosecutor. The different proceedings entail different possible sanctions for the accused if found guilty.
[4] Thus, in the circumstances, the Visa Officer had no choice but to declare the applicant inadmissible to Canada pursuant to paragraph 19(2)(a) of the Act which reads as follows:
(2) No immigrant and, except as provided in subsection (3), no visitor shall be granted admission if the immigrant or visitor is a member of any of the following classes:
(a) persons who have been convicted in Canada of an indictable offence, or of an offence for which the offender may be prosecuted by indictment or for which the offender is punishable on summary conviction, that may be punishable under any Act of Parliament by a maximum term of imprisonment of less than ten years, other than an offence designated as a contravention under the Contraventions Act;
. . . . .
[10] The offence contained in subsection 334(b) is what is commonly referred to as a hybrid offence. It is an offence which, depending on the amounts stolen, may be considered as serious a crime as other indictable offences or may be viewed as only as serious as a summary offence. Thus, the prosecutor is given discretion to, in part, determine the seriousness of the particular crime on a case by case basis. There is no doubt that this is an offence "for which the offender may be prosecuted by indictment". Despite the fact that the Crown did not choose to proceed against the applicant by way of indictment, the applicant cannot escape the fact that the Crown prosecutor could have.
[16] At paras. 8 and 9 of my reasons in Ngalla, I dealt with an argument made by the plaintiff in the case at bar, namely an argument based on s. 34(1)(c) of the Interpretation Act.
[8] With respect, it is my view that counsel for the applicant has misunderstood the purpose of the Interpretation Act and in particular paragraph 34(1)(c) thereof. The paragraph simply provides that, where the Criminal Code gives to the prosecutor discretion with respect to the most appropriate mode of proceeding against an accused, and an accused is found guilty of such an offence on summary conviction, that person shall not be considered as having been found guilty of an indictable offence. Thus, the applicant who was found guilty of theft on summary conviction cannot be considered as having been found guilty of an indictable offence. That is the sole purpose of paragraph 34(1)(c) of the Interpretation Act.
[9] During the hearing, I indicated to counsel that I could not understand how paragraph 34(1)(c) of the Interpretation Act could be relevant in regard to paragraph 19(2)(a) of the Act. Since the applicant was found guilty pursuant to paragraph 334(b)(ii) of the Criminal Code, the Visa Officer, as I indicated earlier, had no choice but to declare her inadmissible. For the purpose of clarity, I reproduce paragraphs 334(b)(i) and (ii) of the Criminal Code.
[17] In view of Muldoon J.'s judgment in Ruparel and the comments I made in Ngalla, I come to the conclusion that the visa officer made no error of fact or law that would allow me to intervene.
[18] Like Muldoon J. in Ruparel, I must regretfully dismiss the plaintiff's application for judicial review. At p. 618 of his reasons, Muldoon J. said the following:
This is a sad case for it appears that the applicant, his wife and child who would appear to be first-rate immigrants are delayed in their application for permanent residence in Canada because of an isolated lapse of no great moral turpitude in the applicant's otherwise apparently impeccable life's story. The Court must dismiss his application with profound regret, because the only alternative would be the Court's own complicity in a breach, albeit a compassionate breach, of the rule of law.
[19] In my opinion, the case at bar raises no serious question of general importance. Consequently, no question will be certified.
Ottawa, Ontario
January 8, 2001
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: IMM-2322-00
STYLE OF CAUSE: STÉPHAN ABRASSART v. M.C.I.
PLACE OF HEARING: MONTRÉAL
DATE OF HEARING: DECEMBER 19, 2000
REASONS FOR ORDER BY: NADON J.
DATED: JANUARY 8, 2001
APPEARANCES:
Daniel Drouin FOR THE APPLICANT
Marie-Claude Demers FOR THE RESPONDENT
SOLICITORS OF RECORD:
Daniel Drouin FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
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