Knox v. Canada (Minister of Citizenship and Immigration), docket IMM-1158-97

     IMM-1158-97

BETWEEN:

     CHARLES LEE KNOX

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

TEITELBAUM, J:

     This is an application by the applicant, Charles Lee Knox, "for an Order enforcing the statutory stay of execution of the deportation order made against me" (see Notice of Motion).

     In the said Notice of Motion, the applicant states that the motion is for "An Order granting the Applicant, Charles Lee Knox, a stay of execution of a deportation order signed by Glenn McBrien dated September 13, 1994 at Ottawa, Ontario, enforced by a letter from Wayne Robertson dated April 24, 1997 pending the determination of the Application for judicial review pursuant to subsection 82.1 of the Act".

     The applicant fails to state of what "Act". I can only assume he is speaking of "Subsection 82.1(1)" of the Immigration Act which states:

An application for judicial review under the Federal Court Act with respect to any decision or order made, or any matter arising, under this Act or the rules or regulations thereunder may be commenced only with leave of a judge of the Federal Court - Trial Division.

     The Application for Leave and for Judicial Review filed in this matter by the applicant on March 20, 1997 does not speak of a deportation order but refers to a decision of the Immigration and Refugee Board dated March 4, 1997.

     The applicant states, in his Application for Leave and for Judicial Review, the following:

The Applicant seeks Leave of the Court to commence an Application for Judicial Review of:

(i)          The negative decision of the Immigration and Refugee Board (Refugee Division) dated 4 March 1997, the Notice of Decision of which was signed on Tuesday, March 4, 1997, all of which was received by the Applicant on Friday, March 7, 1997;

     It is therefore apparent that the applicant does not seek judicial review of the decision of Glenn McBrien dated September 13, 1994 wherein Glenn McBrien issued a Deportation Order against the applicant for the following reasons:

ON THE BASIS OF THE EVIDENCE ADDUCED TO THE INQUIRY HELD UNDER THE PROVISIONS OF THE IMMIGRATION ACT, I HAVE DECIDED THAT YOU ARE A PERSON DESCRIBED IN:

27(2)(a) / 19(1)(c.1)(i).19(2)(a.1)(i) & 27(2)(g)

A person in Canada other than a Canadian citizen or permanent resident who:

- (a)      -      is a member of an inadmissible class

-      19(1)(c.1)(i) - persons who there are reasonable grounds to believe have been convicted outside Canada of an offence that, if committed in Canada, would constitute an offence that may be punishable under any Act of Parliament by a maximum term of imprisonment of ten years or more,

-      19(2)(a.1)(i) - persons who there are reasonable grounds to believe 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.

- (g)      -      came into Canada by reason of any fraudulent or improper means or misrepresentation of any material fact.

     After hearing counsel for the applicant, I am satisfied that applicant is attempting to obtain a stay of execution of the deportation order issued on September 13, 1994 pending a decision on his Application for Leave and Judicial Review wherein an Immigration and Refugee Board (Refugee Division) (hereinafter the "Board") determined, on March 4, 1997, that the applicant is not a Convention refugee as defined by section 2(1) of the Immigration Act.

     In the case of RJR-Macdonald v. Canada [1994] 111 D.L.R. (4th Series) 385 at 400 (S.C.C.), Sopinka and Cory J.J. state the principles to be applied where an applicant requests an injunction or a stay:

Generally, the same principles should be applied by a court whether the remedy sought is an injunction or a stay. In Metropolitan Stores (M.T.S.) Ltd., supra, at p. 332, Beetz J. expressed the position in these words:

A stay of proceedings and an interlocutory injunction are remedies of the same nature. In the absence of a different test prescribed by statute, they have sufficient characteristics in common to be governed by the same rules and the courts have rightly tended to apply to the granting of interlocutory stay the principles which they follow with respect to interlocutory injunctions.

Metropolitan Stores adopted a three-stage test for courts to apply when considering an application for either a stay or an interlocutory injunction. First, a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried. Secondly, it must be determined whether the applicant would suffer irreparable harm if the application were refused. Finally, an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits. It may be helpful to consider each aspect of the test and then apply it to the facts presented in this case.

     Therefore, in order to grant an application for stay of the deportation, the applicant has the burden to convince me that his application for leave and judicial review is not frivolous or vexatious, that is, he has an arguable case, that he will suffer irreparable harm and that the balance of convenience is in his favour. The applicant has the burden to demonstrate all three elements. If the applicant fails in showing any one of the three elements, the application for stay must be denied.

Arguable Case

     In RJR-Macdonald (supra) at page 401, the Court states:

Prior to the decision of the House of Lords in American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396, an applicant for interlocutory relief was required to demonstrate a "strong prima facie case" on the merits in order to satisfy the first test. In American Cyanamid, however, Lord Diplock stated that an applicant need no longer demonstrate a strong prima facie case. Rather, it would suffice if he or she could satisfy the court that "the claim is not frivolous or vexatious; in other words, that there is a serious question to be tried". The American Cyanamid standard is now generally accepted by the Canadian courts, subject to the occasional reversion to a stricter standard:

     It is clearly apparent that the applicant cannot demonstrate that he has a serious question to be tried.

     The applicant has filed, in support of his Application for Stay two affidavits, the first dated April 25, 1997, with exhibits, and the second, dated April 29, 1997, with exhibits.

     In paragraph 10 of the applicant's April 25, 1997 affidavit (hereinafter 1st affidavit) the applicant states as a serious issue the issue of the refusal of the Board to grant the applicant an adjournment "to obtain vital information and documents from security agencies in the United States and Canada in support of my claim". The applicant states in paragraph 3 of his April 29th, 1997 affidavit (hereinafter 2nd affidavit) that this is a denial of natural justice.

     The Board deals with this issue on pages 2 and 3 of its decision. The Board states:

Counsel indicated very early on in the proceedings that there was additional evidence that he and the claimant were waiting to receive. This evidence included material from the FBI in the United States, as well as from CSIS and the RCMP in Canada, all of which had been requested by the claimant pursuant to the appropriate legislation regarding the release of information. The panel indicated that given its duty to be both expeditious and fair, the panel would proceed with the case. If counsel still had not received the additional evidence at the conclusion of oral testimony, he was to raise the matter at that time.

At the conclusion of oral testimony on October 3rd, 1996, counsel made a motion for an adjournment. The motion was twofold. Firstly, counsel requested that the panel delay making its decision on the case until documents were received from the FBI, CSIS and the RCMP. Secondly, counsel requested that the panel issue an order compelling a list of named Canadian Agencies to appear before the Refugee Division and to produce the documents which claimant and counsel were seeking.

The panel heard and considered detailed arguments from each of the participants regarding this motion. Upon consideration of these arguments, the panel finds that the motion is denied regarding both matters. The panel must balance its duty to be fair with its duty to be expeditious, and at the same time ensure that the claimant has the opportunity to be heard. The claimant claimed refugee status in July, 1994. It is now 1997, some two and a half years later. Recognising that the claimant was having difficulty obtaining documents from the FBI, the panel requested the Minister's assistance in seeking documents from the FBI. This assistance was provided. However, according to the claimant's witness, Mr. Lawrence Greenspon, it will be 1998 before the United States even starts the information request given their backlog. In the witness' words, the receipt of this information is "anything but imminent". Regarding the RCMP and CSIS information, Mr. Greenspon is representing the claimant in the Canadian court system trying to get this information. There is no reasonable assessment of when, or if any, information will be available.

Thus, approximately two and a half years have passed and the claimant has still not received the information he is seeking. It is inappropriate for the Refugee Division to delay making its decision on this case in order to wait for documents that may not come for several years, if at all. Furthermore regarding the opportunity to be heard, a conservative estimate of the hours during which the panel heard testimony and argument on this case is approximately thirty five hours. The majority of cases before the Refugee Division are afforded three to six hours. In addition, the panel has received in evidence hundreds upon hundreds of pages of documentary evidence. There can be no doubt that the claimant has had the opportunity to be heard.

The counsel argues that there are 1800 pages of documents which the FBI has in its possession regarding the claimant since 1972. The counsel argues that these documents are necessary for his case as they will show the FBI attempt to discredit, harass, suppress, oppress, silence and otherwise persecute the claimant, if not also personally harm him. The panel however concludes that it is reasonable that the claimant is under surveillance given his past, and his recent association with the EL Rukn gang, his trips to Libya, and his numerous criminal convictions, as discussed in more detail later in these reasons. The panel therefore concludes that it is unnecessary to wait for material sought by counsel or to order certain agencies as listed by counsel to appear and produce their documents, in order to make a well-reasoned decision.

     Surely, the Board could not have done more. It is the responsibility of the applicant to bring evidence before the Board to support his submission that he is a Convention refugee. If the applicant is unable to produce the necessary documents in a reasonable time, then the Board is correct in stating that it will refuse an adjournment. This is particularly true where, as in this case, the applicant was unable to give any assurance he would be able to get the documents and, if he could, the earliest would be in 1998 for the U.S. documents emanating from the Federal Bureau of Investigation (F.B.I.).

     I can see no error in the Board's decision to deny the requested adjournment and thus do not find that there was a denial of natural justice.

     In paragraphs 9 and 10 of the applicant's 2nd affidavit, he states:

9.      The panel held at page 13 of its decision that offences which I committed in the U.S. were not a basis for exclusion, even when considered cumulatively. However, the Adjudicator's decision leading to my deportation order was that the offences I committed in the U.S. were serious crimes and therefore fell within S. 19(1)(c.1)(i).

10.      This premise was erroneous as explained to the IRB by Lawrence Greenspon my counsel in the Extradition case, matter on the basis of the affidavit of Michael Eddelson, a specialist in Criminal Law, sworn August 23rd, 1995. A copy of that affidavit is attached as Exhibit "B".

     If one looks to pages 11, 12 and 13 of the Board's decision, it is apparent that what the Board states is that the crimes committed are not grounds for exclusion under Article 1(F)(b) of the definition of a Convention Refugee.

     Convention refugee is defined under section 2 of the Immigration Act as:

"Convention refugee" means any person who

(a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,

(i) is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or

(ii) not having a country of nationality, is outside the country of the person's former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and

     (b) has not ceased to be a Convention refugee by virtue of subsection (2),

but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act;

     SCHEDULE

     (Subsection 2(1)

     SECTIONS E AND F OF ARTICLE 1 OF

     THE UNITED NATIONS

     CONVENTION RELATING TO THE

     STATUS OF REFUGEES

E. This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country.

F. The provisions of this Convention shall not apply to an person with respect to whom there are serious reasons for considering that:

(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

(c) he has been guilty of acts contrary to the purposes and principles of the United Nations, R.S.C. 1985 (4th Supp.), c. 28, s. 34.

     The Board states, on pages 11, 12 and 13, the following:

     Finally, the seriousness of the crimes must be assessed. At paragraph 155 of the UNHCR handbook it indicates that "a serious crime must be a capital crime or a very grave punishable act. Minor offences punishable by moderate sentences are not grounds for exclusion under Article 1F(b), ...".

     In order to assess the seriousness, the panel assessed each crime which was argued by the Minister. First of all, the claimant was convicted of false statement after posing as a licensed lawyer, when he in fact was not one, in order to have a private meeting with the leader of the EI Rukn gang in a federal prison. The claimant was found guilty and sentenced to three years in prison, a ten thousand dollar fine, and five years probation. While the panel does not view this crime as a petty crime, particularly since the claimant used fraudulent means to enter a federal institution, the panel does not view it as a serious or grave enough crime so as to bring it within the purvue of Article 1F(b) for the purposes of exclusion.

     The next crime which was raised by the Minister, was conspiracy to defraud the United States. This crime partially involved a grant in the amount of $29,000 for a non-profit organization, a radio station. The grand was for the purpose of improving the quality of the radio signal, and the claimant, with the approval of the Board of Directors, spent grant money on items including electricity and telephone bills and buying equipment other than equipment indicated in the line items on the grant. The claimant pled guilty to this crime. The panel again concludes that while this is not a trivial crime, particularly given the amount of money involved, $29,000, the panel does not consider the misuse of grant money for a non-profit organization to be an excludable offence, especially given that the money was used for the radio station and not for the claimant personally.

     The conspiracy charges were also in relation to the parking study. The claimant was alleged to have accepted $29,000 in cash bribes plus expenses regarding the parking study, which was seen as an attempt to influence the city of Chicago. The Minster argues that this offence and the offence regarding the grant for the radio station, would each allow a penalty in Canada for up to a maximum term of ten years imprisonment. Therefore, she argues that these crimes are considered serious crimes and are not minor offences punishable by moderate sentences. The panel note however that the claimant was offered a plea-bargain regarding both the charge relating to the radio station and the charge relating to the parking study. The jail term he received as a result of the plea-bargain was simply time already served. As a result, the panel concludes that neither of these crimes are serious enough to constitute exclusion pursuant to Article 1F(b).

     Finally, the claimant was convicted on three counts of deceptive practices in relation to a cheque cashing scam. Mr. Knox's two cousins worked for the city of Chicago. Cheques which had been in the possession of the claimant were cashed through the city of Chicago with insufficient funds in the accounts to cover the cheques.

     In terms of the seriousness of this crime, the panel heard helpful testimony from the witness, Mr. Lawrence Greenspon, the legal counsel assisting the claimant with his extradition proceedings. For the purposes of the extradition proceedings, the equivalent sections of the Canadian criminal code were examined. it was conceded in those proceedings that the appropriate section in Canadian legislation was section 362(1)(a) of the Canadian Criminal Code. Pursuant to Section 362(2)(b) this crime is a hybrid offence, meaning that it can proceed by way of indictment or by way of summary conviction. Mr. Greenspon indicated that it was conceded in the extradition proceedings that pursuant to this section, more specifically, section 362(2)(b)(ii), the Crown would have to proceed by way of summary conviction given that the value of what was obtained does not exceed $5,000. The claimant was convicted of three counts of false pretences. Each count involved a cheque in the amount of $800, for a total of $2,400, which is clearly less than $5,000. The Minister inquired about Section 380 of the Canadian Criminal Code as well. The witness indicated that Section 380(1)(b) reads essentially the same. It is a hybrid offence, but under $5,000 it must proceed by way of summary conviction. This was also conceded in the proceedings. Given all this, it has been clearly established that the convictions for false pretences are the equivalent of summary convictions in Canada, and as such, the panel finds that they are not serious enough to be considered excludable crimes pursuant to Article 1F(b).

     Given all of the above, the panel finds that the claimant is not excludable as the crimes committed by the claimant are not serious enough so as to invoke Article 1F(b), even when considered cumulatively.

     I repeat, all that the Board decided was that the crimes committed by the applicant were not of a nature as to exclude the applicant, if he were to be considered a refugee, from being permitted to remain in Canada pursuant to Article 1(F)(b) of the United Nations Convention Relating To The Status of Refugees (supra).

     This fact does not make the Deportation Order issued on September 13, 1994 invalid. As I have stated, the Deportation Order was issued on September 13, 1994 by Glenn McBrien because he found the applicant a person in Canada, other than a Canadian citizen or permanent resident who is a member of an inadmissible class.

     The applicant, on October 4, 1994, filed an application for leave and judicial review to quash the decision of Mr. McBrien. Reed J., on February 16, 1995, dismissed the application for leave (see Federal Court of Canada file IMM-4355-94).

     Therefore, the validity of the Deportation Order cannot now be put into question.

     In paragraph 11 of his 2nd affidavit, the applicant states:

11.      In regards to the panel's conclusion that there was now a change of circumstances in the U.S. after my persecution. (P.14), it is clear that they failed to examine the following evidence before it:

a. United Nations Report (1995) on Human Rights violations by the United States. Exhibit "C".

b. Letters from community organisations and an elected official stating that I will face persecution if returned. These are already in Exhibit "G" of my affidavit sworn April 25, 1997.

     All of the documents that the applicant refers to in his paragraph 11 were before the members of the Board and I have no evidence before me that these documents were not considered by the Board.

     The Board states, on page 14 of its decision, that it did not find the applicant's testimony regarding what happened to him in the United States since "the 1980's" to be credible.

     The Board, as they are obliged to do, goes on to explain, in detail, why it came to such a conclusion.

     The issue of credibility rests with the Board. I, as a judge, should not try to second guess the Board on the issue of credibility unless I am shown the Board failed to give reasons for coming to such a conclusion. As I have stated, the Board gave detailed reasons for its conclusion as to the applicant's credibility.

     I am satisfied that the applicant has failed to show me that he has an arguable case to present that would warrant a judicial review of the decision of the Refugee Board.

     Since the applicant cannot satisfy the tripartite test for a stay application, the application for stay is denied.

     I do not believe it necessary to discuss the issues of irreparable harm and/or balance of convenience.

                         "MAX M. TEITELBAUM"                                      J U D G E

OTTAWA

May 1, 1997