Date: 20100311
Docket: IMM-4447-09
Citation:
2010 FC 280
Ottawa, Ontario, March 11, 2010
PRESENT:
The Honourable Mr. Justice Martineau
BETWEEN:
LEONARDO
JAVIER BOLANOS BLANCO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondents
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
applicant is challenging the legality of a decision rendered by the Immigration
Division of the Immigration and Refugee Board (the panel) on September 1,
2009, determining that he was inadmissible on grounds of serious criminality.
[2]
Under
paragraph 36(1)(c) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (the Act), a permanent resident or a foreign national is
inadmissible on grounds of serious criminality for 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.
[3]
In
this case, the panel determined after an investigation that there were
reasonable grounds to believe that the applicant had committed an act in the
United States that, if committed in Canada, would constitute an offence under
subsection 380(1) of the Criminal Code, R.S.C. 1985, c. C-46 (the
Code), punishable by a maximum term of imprisonment of 14 years.
[4]
The
applicant is now challenging the legality of this decision on three grounds:
(a)
There
was a reasonable apprehension of bias in this case;
(b)
The panel
could not legally enter into evidence documents that were in English and had
not been translated into French prior to the hearing;
(c)
The panel could
not legally rule on the applicability of subsection 380(1) of the Code.
[5]
Having
considered each of these three grounds on a standard of correctness, the Court
is of the view that this application for judicial review must fail for the
reasons that follow.
Apprehension of Bias
[6]
The allegation of bias is the most serious charge that can
be brought against a member. The Court must decide if an informed person, having
thought the matter through and viewing the matter realistically and practically,
would conclude that there is a reasonable apprehension of bias (Committee
for Justice and Liberty v. Canada (National Energy Office), [1978]
1 S.C.R. 369 at pages 394 and 395 (Committee for Justice and Liberty)). This
requirement has not been met.
[7]
The
charge of reasonable apprehension of bias is based on the following
information:
1.
The
advisor from the Canada Border Services Agency (the Agency) took it upon
herself to write to the Immigration Division before the hearing to challenge
the language of the proceedings being changed to French, without also sending a
copy of her letter to the applicant’s representative.
2. The
member subsequently assigned by the Immigration Division to hear the case, Yves
Dumoulin, had already determined before the hearing that the applicant is an American
citizen.
3. The
impugned decision was made only one day after the additional written
submissions were filed by the applicant’s representative.
[8]
As
regards the correspondence exchanged before the hearing, fault is attributable
not to the panel but rather to the Agency’s advisor. Be that as it may, any
breach of the rules of procedural fairness was corrected by the panel’s subsequent
decision to change the language of proceedings to French, which was the basis
of the Agency’s challenge in the correspondence in question.
[9]
Further,
any opinion or preconceived idea of Member Dumoulin on the applicant’s
citizenship has no bearing on the issue of inadmissibility on grounds of
criminality, given that the applicant himself admits that he is not a Canadian
citizen and that the panel does not have to determine to which country the
applicant should be deported once the removal order has become enforceable.
[10]
Finally,
given that the decision in question was made only one day after the applicant
had provided additional written submissions, the applicant alleges that it is
not possible for Member Dumoulin to have had the time to read the 60-page-long
submissions at the same time as writing his 30-page decision.
[11]
However,
as this Court already noted in Stapleton v. Canada (Minister of Citizenship
and Immigration), 2006 FC 1320, in paragraph 30, “… the brevity of a
decision maker’s deliberations [does not] establish per se that the
decision maker was biased prior to [considering] the evidence and arguments of
either party.” In this case, the applicant’s submissions include approximately
four pages of arguments, followed by some 50 pages of case law. Moreover, on
pages 30 to 32 of the impugned decision, it is clear that the panel did
consider the arguments submitted by the applicant in his additional written
submissions.
Language of Proceedings
[12]
The
applicant was born in Cuba and lived in the United States for a number of years
before coming to Canada. While his mother tongue is Spanish, the applicant
speaks English fluently.
[13]
The
report prepared under section 44 of the Act was written and the
proceedings relating to the Immigration Division’s review of the legality of
the applicant’s detention and his inadmissibility to Canada were commenced in
July 2008 when the applicant was represented by counsel who communicated
with the panel in English.
[14]
On
March 16, 2009, the panel consented to an application by the applicant’s
new counsel that the language of the proceedings be changed to French, as
permitted by section 16 of the Immigration Division Rules, SOR/2002-229
(the Rules). At the same time, the panel refused to have translated into French
the documents in English that the Minister had previously sent to the
applicant’s former counsel, which is the basis for the applicant’s current argument
that the panel could not legally enter them into evidence at the hearing.
[15]
At the commencement of
the hearing before this Court, the applicant’s counsel confirmed that the Official
Languages Act, R.S.C. 1985, c. 31 (4th Supp.) and the Canadian Charter
of Rights and Freedoms, Part I of the Constitution Act, 1982,
being Schedule B to the Canada Act, 1982 (U.K.), 1982, c. 11,
were not at issue, so that the legality of the impugned interlocutory judgment
in this case does not have to be considered in terms of these binding
instruments.
[16]
The
applicant now raises the breach of section 25 of the Rules, which sets out
that:
|
25. (1) All
documents used at a proceeding must be in English or French or, if in another
language, be provided with an English or French translation and a
translator’s declaration.
(2) If the Minister provides
a document that is not in the language of the proceedings, the Minister must
provide a translation and a translator’s declaration.
(emphasis
added)
|
25. (1) Tout
document utilisé dans une procédure doit être rédigé en français ou en
anglais ou, s’il est
rédigé dans une autre langue, être accompagné d’une traduction
française ou
anglaise et de la déclaration du traducteur.
(2) Si le ministre transmet un document qui n’est
pas dans la langue des procédures, il l’accompagne d’une traduction dans
cette langue et de la déclaration du traducteur.
(non
souligné dans l’original)
|
[17]
Section 25
of the Rules is a provision that regulates the disclosure of evidence so that
the parties are not taken by surprise at the hearing. A breach of section 25
of the Rules can only result in a postponement of the hearing. It is clear that
when the documents in question were provided by the respondents, the
language of the proceedings was English, precluding the need for a French
translation. It must be acknowledged that there is a difference between providing
Minister’s documents to an applicant and filing the documents as evidence the
day of the hearing. It is therefore impossible for me to interpret this
particular provision of the Immigration Division in a way other than that which
the respondents suggested and the panel agreed to.
[18]
I
would add that the applicant, who was allowed to postpone the hearing a number
of times, did not prove that he had suffered any harm in this case.
[19]
When the report under section 44
of the Act was written and provided to the applicant, around July 18,
2008, the language of proceedings was English. Although the applicant denies
having chosen English as his official language, the evidence shows that when
the applicant filled out his form titled “Request for Admissibility Hearing /
Detention Review Pursuant to the Immigration Division Rules” dated July 18,
2008, he or his counsel at the time chose English as the official language.
[20]
In addition, the
transcript of oral evidence from the detention review hearing held before
Member Ladouceur on July 18, 2008, confirms that the applicant understands
and speaks English very well. Further, when the Member asked him at the hearing
if he spoke English fluently, he answered that he did. It should be noted that
the applicant did not use a Spanish interpreter on this occasion and that there
is no evidence to show that he asked to use one before his current counsel had
started to act before the panel on his behalf.
Applicability of Subsection 380(1)
of the Code
[21]
The
applicant, who operated two medical clinics in Miami, is a fugitive from the
American justice system. In July 2008, the competent authorities of the
State of Florida asked the Canadian authorities to extradite him to answer to various
charges of fraud and money laundering related to a number of false and
fraudulent claims made to the American public health system, Medicare.
[22]
With regard to equivalences, the panel considered first
the applicability of section 462.31 of the Code, which deals with money
laundering, and second, section 380 of the Code, which deals with fraud. Since
the Minister could not show that the applicant had an “intent to conceal or
convert [any property or any proceeds],” the panel set aside the application of
section 462.31 of the Code, while affirming the application of section 380
of the Code.
[23]
The
thrust of the panel’s reasoning with regard to the application of section 380
of the Code can be found at paragraphs 142 to 144 of the impugned decision:
…
The evidence deemed credible and
trustworthy indicates that there are reasonable grounds to believe that Mr. Bolanos
Blanco would be regarded as having committed an offence, had it been committed
in Canada—specifically the offence of fraud under paragraph 380(1)(a)
of the Criminal Code.
Indeed, the panel is satisfied that the
evidence indicates that there are reasonable grounds to believe that Mr. Bolanos
Blanco committed a dishonest act by submitting or getting others to submit on
behalf of the institutes a number of false and fraudulent claims to the Medicare
public health system in order to be reimbursed for infusion treatments and
medications that were never administered or were not administered as indicated
on the claims or were unnecessary from a medical standpoint. In so doing, he
deprived the victim (the public or any person, whether ascertained or not) of
the sum of $11,750.00 (sum identified in paragraph 4 of Exhibit C-6, page
24 of the Minister’s exhibits).
Further, the panel is satisfied that the
evidence indicates that there are reasonable grounds to believe that Mr. Bolanos
Blanco had subjective knowledge that the act was prohibited and also subjective
knowledge that it would injure the victim.
…
[24]
The
applicant is now challenging the legality of the panel’s decision with regard
to the application of section 380 of the Code on the grounds that the
report prepared under section 44 of the Act does not specifically mention
the fraud charges laid against the applicant in the United States but referred
only to the charge of money laundering, regarding which an arrest warrant was
issued on April 29, 2004, in the State of Florida.
[25]
Whether
the offence is fraud or money laundering, in both cases, an individual
convicted in Canada of either charge laid in the United States against the
applicant could be sentenced to a maximum term of imprisonment of at least 10
years. Therefore, the failure to mention the charges of fraud or section 380
of the Code is of no consequence here, considering the general nature of the allegation
in the report prepared under section 44 of the Act, which makes specific
reference to the above-noted arrest warrant.
[26]
In
this case, the applicant was aware of the arrest warrant. He had every
opportunity during the hearing before the panel to refute the facts that gave
rise to the warrant, including the reasons why he failed to appear before a judge
of the District Court of the State of Florida to answer to his indictment by an
American grand jury in relation to the charges of fraud and money laundering in
question.
[27]
The
panel did not believe the applicant, dismissing any excuse that he was not
there when many of the fraudulent claims were made and that he was not involved
in the activities of the medical clinics of which he was the owner at the time.
[28]
The
applicant did not challenge the panel’s findings of fact or the finding of
equivalency regarding the fraud charges before this Court, but asserted that
the panel exceeded its jurisdiction by going beyond the content of the report prepared
under section 44 of the Act. As I have already dismissed this last
argument, there are no grounds here to set aside the impugned decision.
[29]
Moreover,
I am of the opinion that no reviewable error was committed by the panel and
that its findings are in accordance with the Act and case law (Uppal v.
Canada (Minister of Citizenship and Immigration), 2006 FC 338; Collins
v. Canada (Minister of Citizenship and Immigration) (March 17,
2009), Ottawa IMM-2648-08 (F.C.); Hernandez v. Canada (Minister of
Citizenship and Immigration), 2005 FC 429; Clarke v. Canada (Minister
of Employment and Immigration), [1984] F.C.J. No. 940 (F.C.A.) (QL) ;
and Eggen v. Canada (Minister of Manpower and Immigration),
[1976] 1 F.C. 643 ( F.C.A.)).
[30]
It
is clear that the panel not only had jurisdiction in this case but also that
its decision is reasonable in the circumstances.
Conclusions
[31]
For
the above reasons, the application for judicial review must be dismissed.
[32]
The
applicant posed the three following questions for certification:
[TRANSLATION]
1. Did the Immigration
Division err by relying on an allegation of medical insurance fraud in the
United States and facts that were not mentioned in the report prepared under
section 44 of the Act in order to determine inadmissibility on grounds of
serious criminality?
2. Did the Immigration
Division err by accepting into evidence, on the day of the hearing on
inadmissibility to Canada, the Canada Border Services Agency’s documents that
were not written in French, the language of the proceedings?
3. Did the Immigration
Division err by denying the applicant the right to obtain evidence filed by the
Canada Border Services Agency, on the day of the hearing on inadmissibility to
Canada, in the official language chosen by the applicant for the proceedings?
[33]
The
respondents challenge the certification. In this case, I do not believe that
the questions proposed by the applicant transcend the interests of the parties,
or that they raise factors with significant impact or of general importance. In
addition, as regards the Immigration Division members’ jurisdiction to review
the grounds for inadmissibility raised by the Minister, the existing case law
is sufficient to answer the question. Finally, the Court is of the opinion that
the Rules are clear in respect of the language rights of individuals at the
Immigration Division. For the above reasons, none of the questions will be
certified.
JUDGMENT
THE COURT ORDERS AND ADJUDGES that the application for judicial
review be dismissed. No question is certified.
“Luc
Martineau”
Certified true
translation
Catherine Jones,
Translator
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