Date: 20101116
Docket: IMM-1185-10
Citation: 2010 FC 1147
Ottawa, Ontario, November 16, 2010
PRESENT: The Honourable Madam Justice Bédard
BETWEEN:
RODOLFO NAVA FLORES,
PENNY LYNN HARE
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION CANADA
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review, pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA], of a decision
of the Refugee Protection Division of the Immigration and Refugee Board (the
Board). The Board found that the applicants were neither Convention refugees
nor persons in need of protection for the purposes of sections 96 and 97 of the
IRPA. It further determined that the male applicant was excluded from
protection by virtue of article 1F(b) of the Convention relating to the
Status of Refugees, 28 July 1951, 189 UNTS 150 [Convention] for
having been convicted of a “serious non-political crime” abroad. For the
reasons that follow, this application for judicial review is dismissed.
Background
[2]
The
male applicant, Rodolfo Nava Flores, is a Mexican citizen while the female applicant,
Penny Lynn Hare is a United States (US) citizen. The two are in a common-law
relationship.
[3]
Mr.
Nava Flores left Mexico to live in the US in 1993. He did not have legal status
there. In July of 2001, he was arrested by US authorities and charged with
assault - second degree, domestic violence. He was convicted on September 27,
2002 and sentenced to a 12-month suspended sentence and 2 years of probation.
While still on probation, Mr. Nava Flores was arrested for “possession of a
firearm by an illegal alien.” Mr. Nava Flores pled guilty and was convicted on
November 5, 2003. He was sentenced to 24 months in jail and 24 months of
supervised release. On November 2, 2004, after serving his jail term (which was
abridged to 18 months, including time served), he was deported from the US to
Mexico. Mr. Nava Flores claims that, at that point, Ms. Hare joined him in
Guadalajara.
[4]
The
applicants allege that, on March 17, 2005, they were accosted by a group of
people who identified themselves as police officers. Mr. Nava Flores says he
was instructed to pay them $250,000 that his stepfather had allegedly stolen
from them. He was given 15 days to pay the money back. After the encounter, Mr.
Nava Flores made arrangements to contact his stepfather who was in jail on
drug-trafficking charges. His stepfather allegedly indicated that the leader of
the group that accosted the applicants was Mr. Palencia Meza. The stepfather
told Mr. Nava Flores that he would take care of things.
[5]
During
the 15 days after the confrontation, the applicants claim they received many
threats by telephone. After this period, however, things quieted down. The
couple believed that the stepfather had dealt with the matter as he said he
would. However, on May 16, 2005, as the applicants were leaving their home,
they said they discovered that their pet dog had been decapitated. A note was
left with the dog, which allegedly warned them that if they did not pay the
money, a family member would be targeted next.
[6]
The
applicants claim that, on June 2, 2005, Mr. Nava Flores was badly beaten by a
group of six individuals. The leader of the group was Mr. Palencia Meza. Mr.
Nava Flores was warned that if he did not pay back the money, he would not be
left alone. Mr. Nava Flores says he filed a complaint with the Public
Ministry.
[7]
On
or about June 8, 2005, the applicants say that they moved to Apaseo Alto, where
members of Ms. Hare’s ex-husband’s family lived, to hide.
[8]
On
July 17, 2005, Ms. Hare’s son was killed in a motor-vehicle hit-and-run in
Apaseo Alto. In his Personal Information Form (PIF), Mr. Nava Flores indicated
that the child “was intentionally run over by a car.” The applicants claim that
several hours after the incident, Mr. Nava Flores received a phone call
advising him that he would continue to lose family members until the money was
paid. The couple say that, at that point, they decided that Ms. Hare’s oldest
son would be safer if he went to live in the US, so they
sent him there. The applicants then fled to Canada on August
10, 2005.
[9]
They
did not claim refugee protection in Canada until June 29, 2006. The refugee
hearings were held on February 17, 2009, May 21, 2009 and July 2, 2009. The
Minister intervened under subsection 170(e) of the IRPA and presented his
opinion that Mr. Nava Flores was excluded from protection due to the
application of article 1F(b) of the Convention.
The decision under
review
[10]
With
respect to Ms. Hare’s claim for refugee protection, the Board simply indicated
that she was a citizen of the US and that no evidence had been presented to
suggest that she had any fear of returning there.
[11]
With
respect to Mr. Nava Flores, the Board rejected his claim on two grounds: first,
because they found him to be excluded under section 98 of the IRPA and
second, because they found his story not to be credible.
[12]
With
respect to the issue of exclusion, the Board concluded that Mr. Nava Flores had
committed “a serious non-political crime” abroad, within the meaning of article
1F(b) of the Convention. As such, Mr. Nava Flores was excluded by virtue
of section 98 of the IRPA. The Board discussed the two offences
committed by Mr. Nava Flores.
[13]
The
Board indicated that if committed in Canada, the assault offence
would have constituted an offence under subsection 265(1) of the Criminal
Code, RSC 1985, c C-46 [Criminal Code], and the firearm offence
would have amounted to illegal possession of a firearm under subsection 92(1)
of the Criminal Code.
[14]
The
Board noted that there was very little information regarding the assault
offence except the sentence that was imposed. However, with respect to the
firearm offence, the Board referred to the Federal Court of Appeal’s decision
in Jayasekara v Canada (Minister of Citizenship and Immigration), 2008
FCA 404, [2009] 4 FCR 164 [Jayasekara], and considered a number of
factors to arrive at the conclusion that Mr. Nava Flores had committed a
serious non-political crime in the US. The Board based its conclusion on the
following elements:
- The sentence
provided for the offence of illegal possession of a firearm under the Criminal
Code: a maximum of 10 years imprisonment.
- The sentence
actually imposed in the US: 24 months
imprisonment and 24 months probation, which it considered to be fairly
harsh.
- Aggravating circumstances:
the offence was committed by Mr. Nava Flores while he was on probation for
a violent crime. Also the Board found that, had the firearm not been
removed from his possession, there was a possibility that Mr. Nava Flores
might have used it (he had purchased the weapon for protection and had
already been ridiculed and threatened).
[15]
The
Board rejected Mr. Nava Flores’ suggestion that he received a harsh sentence
just because he was a foreigner.
[16]
Given
its finding that the firearm offence constituted a serious non-political crime,
the Board concluded that Mr. Nava Flores was excluded from protection by virtue
of article 1F(b) of the Convention and section 98 of the IRPA.
[17]
The
Board went on, for completeness, to consider the question of inclusion under
sections 96 and 97 of the IRPA. The Board did not believe the applicants’
allegations and concluded that they were not credible. The Board’s adverse credibility
finding was based on several elements.
[18]
First,
the Board did not understand why Mr. Nava Flores had not contacted his
stepfather after their initial conversation and after the threats intensified,
especially given that the stepfather had indicated he would address the problem
with Mr. Palencia Meza, and clearly had failed to do so. The Board rejected Mr.
Nava Flores’ explanation that it was difficult to contact the stepfather
because it required going through an intermediary (i.e. the stepfather’s blind
mother). The Board found that these vague explanations affected Mr. Nava
Flores’ credibility.
[19]
Second,
the Board found that Mr. Nava Flores’ credibility was affected because he had
indicated in his PIF that he had filed a complaint with the Public Ministry but
made no mention of the fact that it was not accepted. The Board
found that omission to be inconsistent with Mr. Nava Flores’ testimony at the
hearing, where he indicated that the police had refused to take his complaint
after they found out it was directed at Mr. Palencia Meza. The Board found that
Mr. Nava Flores’ excuse for the inconsistency - that he was under stress when
completing the PIF - was doubtful.
[20]
Third,
the Board did not believe that the death of Ms. Hare’s son was related to the
alleged threats. It noted that Mr. Nava Flores had initially indicated that
there was no police report filed regarding the incident, and that it was only
after the Board insisted on having proof that the applicants admitted that the police
did arrive at the scene of the accident.
[21]
The
Board stayed its proceedings twice to allow the applicants’ time to obtain a
copy of the police report regarding the death of Ms. Hare’s son. The Board
noted that when the applicants did eventually submit the report, the translation
that they provided was incomplete and particularly relevant excerpts had been
left out. The Board had the entirety of the report translated and found, given
the contents of what had been left out, that the omissions in the initial
translation were intended to mislead. The omitted portions of the police
report contained important contradictions when compared with the applicants’
version of events.
[22]
The
Board found that the police report contradicted the applicants’ testimony in a
number of ways. It noted that the two individuals who were questioned by the
Mexican police - the victim’s grandfather and great-uncle (on his father’s
side) - indicated that the boy had been living with his grandparents (on his
father’s side) in Apaseo Alto since December and that he did not live with his
mother because she was not the custodial parent, his father was. The Board
found that this ran counter to the applicants’ version of events. The
grandfather further stated that his other grandson, Ms. Hare’s oldest son,
lived in the US with his father. The Board found that this contradicted the applicants’
claim that they had sent the eldest son to the US after
the hit-and-run. Further, neither of the family members questioned indicated
that the victim’s mother was present in Apaseo Alto at the time of the incident.
The Board found that this called into question whether the applicants were even
there as they said they were.
[23]
Ultimately,
the Board concluded that the applicants had “shamefully [used Ms. Hare’s] son’s
death as a reason for claiming refugee protection.” As such, it rejected the applicants’
story regarding the threat in Mexico and determined that they were neither Convention
refugees nor persons in need of protection.
Issues
[24]
The
applicants alleged that the Board erred in several ways. The applicants’
contentions raise the following issues:
i.
Did
the Board err in its appreciation of the evidence and in its assessment of the applicants’
credibility?
2) Was
the applicants’ former representative negligent in such a way as to constitute
a breach of natural justice?
3) Did
the Board err by applying the criteria set forth in Jayasekara to find
that Mr. Nava Flores was excluded from refugee protection despite the fact
that he had completed his sentence for the crime in question?
4) Did
the Board err in its analysis of the seriousness of the crime by misapplying
the factors set forth in Jayasekara?
4.1)
Did
the Board err with respect to the consideration that it afforded to the
severity of the sentence imposed in the US?
4.2)
Did
the Board err in failing to weigh the fact that Mr. Nava Flores had completed
his sentence, or in the alternative, the part of his sentence that he was
permitted to complete before being deported to Mexico?
4.3)
Did
the Board err by concluding that Mr. Nava Flores had not discounted the
possibility of using the firearm and by considering this possibility as an
aggravating factor?
Standard of Review
[25]
Decisions
of the Refugee Protection Division (RPD) as to questions of fact and
credibility are to be reviewed against the “reasonableness” standard (Aguebor
v Canada (Minister of
Employment and Immigration) (1993), 160 NR 315 at para 4, 42 ACWS (3d)
886 (FCA); Yin v Canada (Minister of
Citizenship and Immigration), 2010 FC 544 at para 22 (available on
CanLII).
[26]
It
is well accepted that the RPD is entitled to considerable deference when
assessing credibility (Shaiq v Canada (Minister of Citizenship and
Immigration), 2009 FC 149 at para 73 (available on CanLII); Song v
Canada (Minister of Citizenship and Immigration), 2008 FC 1321 at para 50, 76 Imm LR (3d) 81) because decisions concerning credibility
lie within the “heartland of the discretion of triers of fact” (Siad v
Canada (Secretary of State) (1996), [1997] 1 FC 608 at
para 24, 206 NR 127 (CA)). The Court is not in as good a position
as the RPD to assess the credibility of evidence.
[27]
The
ultimate decision of the Board as to whether Mr. Nava Flores is a person
described in article 1F(b) of the Convention involves questions of mixed
fact and law, and as such, is also reviewable against the reasonableness
standard (Jayasekara, above at para 10; Noha v Canada (Minister of
Citizenship and Immigration), 2009 FC 683 at para 21, 347 FTR 265 [Noha]).
[28]
In
Dunsmuir v New Brunswick, 2008 SCC 9 at para 47, [2008] 1 SCR
190, the Supreme Court of Canada held that:
. . . reasonableness is
concerned mostly with the existence of justification, transparency and
intelligibility within the decision-making process. But it is also concerned
with whether the decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law.
i.
Did the Board err in its appreciation of the
evidence and in its assessment of the applicants’ credibility?
[29]
The
applicants argue that the Board made two errors with respect to its adverse
credibility findings regarding the translated police report. First, the applicants
argue that the Board was incorrect in stating that Ms. Hare and Mr. Nava Flores
claimed to be living with the victim’s grandparents at the time of his death,
since they actually had testified that they were living with an aunt. Second,
the applicants claim that the Board was wrong to find that the police report
indicated that Ms. Hare was not present at the time of her son’s death – this
was not explicitly stated in the report, and was, rather, an inference that the
Board made based on the report.
[30]
I
find that these defects do not undermine the Board’s credibility finding with
respect to the police report. As the applicants rightly admit, these were not
major defects.
[31]
The
applicants also contend that the Board erred in making an implausibility
finding in relation to Mr. Nava Flores’ failure to contact his stepfather
subsequent to their initial discussion. The applicants argue that an adequate
explanation was provided: that the stepfather was difficult to reach in prison,
that he had not solved their problem earlier, and that the relationship between
the two was tense. The Board rejected these explanations. This rejection was
reasonable: contact with the stepfather had been easy enough to achieve the
first time, and given that the stepfather had claimed he would take care of the
problem with Mr. Palencia Meza, common sense would dictate that Mr. Nava Flores
would want to follow up to see what, if anything, had been done (especially
given the high stakes involved). The Board is entitled to make determinations
based on rationality and common sense (Shahamati v Canada (Minister of
Employment and Immigration), [1994] FCJ No 415 (QL) (FCA); Garcia v
Canada (Minister of Citizenship and Immigration), 2008 FC 206 at para 9, 170 ACWS (3d) 159) and I find that that is exactly what it
did here.
[32]
The
applicants also take issue with the Board’s credibility finding in relation to
Mr. Nava Flores’ PIF. They argue that the Board was overzealous and that the
account in Mr. Nava Flores’ PIF regarding his complaint to the police simply
lacked detail. With respect, the difference between stating that one has filed
a complaint with the police and stating that one was unsuccessful at filing a
complaint with the police is significant. Moreover, Mr. Nava Flores was given
the opportunity to explain the discrepancy between his PIF and his testimony at
the hearing; he indicated that he was under stress while completing the PIF. It
is not unreasonable that the Board would make an adverse credibility finding in
these circumstances.
[33]
The
Board’s primary concern with regards to the applicants’ credibility had to do
with the events surrounding the death of Ms. Hares’ son. The Board indicated in
its decision that, “The evidence presented contained a number of ambiguities,
which greatly affect the claimant’s credibility, particularly with respect to
the murder of the child McClane.”
[34]
The
applicants do not take issue with the contradictions raised in the police report:
that Ms. Hare’s youngest son had been living with his grandparents since
December (not with the applicants as they had claimed), that Ms. Hare did not
have custody of either of her children (as she claimed to), and that the eldest
son was already living in the US at the time of the hit-and-run (and was not
sent there afterwards as was claimed). As such, the Board’s credibility
finding, as it relates to the police report, can not be said to be
unreasonable. The applicants’ contention that they did not have an opportunity
to respond to these apparent contradictions is a point to which I will return
later.
[35]
These
contradictions, along with the other elements discussed above, lead me to
conclude that the Board’s general finding of non-credibility meets the test of
reasonableness. As such, the Court’s intervention is not warranted.
2) Was the applicants’
former representative negligent in such a way as to constitute a breach of natural
justice?
[36]
The
applicants submit that the Board faulted them for filing a partial translation
of the police report and for not having provided comments once a complete
translated version had been obtained by the Board. The applicants allege that
their former representative, alone, decided which parts of the report would be
translated. They further submit that their former representative did not inform
them that a complete translation had been carried out by the Board. Given this,
they claim that they were denied the opportunity to respond to the
contradictions that were revealed by the complete translation. They argue that all
of this amounted to non-feasance on the part of their former representative and,
thus, constituted a breach of natural justice.
[37]
First,
I find that the applicants can not so easily absolve themselves of
responsibility. They were aware that the Board wanted a copy of the police
report. In my view, it was their responsibility to ensure that an adequate
translation was provided. They cannot simply claim ignorance in this regard.
At the very least, on July 2, 2009 (i.e. at the final hearing, after the
partial translation had been filed), the applicants could have verified the
completeness – or, rather, detected the lack thereof - of what had been
submitted by their representative. It is clear from the record that Mr. Nava
Flores speaks Spanish and would have been able to understand the entirety of
the original version of the police report. Therefore, when the applicants
presented themselves at the hearing on July 2, 2009, they would have been aware
that the police report contradicted important aspects of their story. They
would also have been aware that the translation which had been provided omitted
those contradictions. They had the opportunity to address those contradictions
and they chose not to. As such, I find it hard to accept their argument, now,
that they were somehow deprived of the opportunity to respond by their
representative’s non-feasance.
[38]
In
any event, the applicants have not adequately proved non-feasance on the part
of their former representative. In certain circumstances, non-feasance by an
applicant’s counsel can amount to a breach of natural justice (Medawatte v Canada (Minister
for Public Safety and Emergency Preparedness), 2005 FC 1374, 52 Imm
LR (3d) 109). However, if an applicant is to be successful in making an
argument based on counsel’s non-feasance, a certain evidentiary burden must be
met. Justice Pelletier in Nunez v Canada (Minister of
Citizenship and Immigration) (2000), 189 FTR 147, 97 ACWS (3d) 303 at
para 19 [Nunez] indicated:
I am not prepared to accept
an allegation of serious professional misconduct against a member of the bar
and an officer of this court without having the member's explanation for the
conduct in question or evidence that the matter has been referred to the
governing body for investigation. In this case, there was ample opportunity to do
one or the other but neither was done. The failure to do so is inconsistent
with the gravity of the allegations made. This is not a question of being
solicitous of lawyers' interests at the expense of their clients. It is a
question of recognizing that allegations of professional negligence are easily
made and, if accepted, generally result in the relief sought being granted. The
proof offered in support of such an allegation should be commensurate with the
serious nature of the consequences for all concerned.
[Emphasis added]
[39]
Justice
Pelletier in Nunez, above, was considering alleged professional
misconduct in the context of an applicant who claimed that his lawyer did not
inform him that his refugee status had been rejected. Although that is somewhat
different than the situation before the Court here, it has been held that the
principles from Nunez apply “to an applicant who is casting doubt on his
representation by an immigration consultant who is subject to regulation by the
CSIC” (Shakiban v Canada (Minister of Citizenship and Immigration), 2009
FC 1177 at para 15 (available on CanLII)).
[40]
The
applicants indicate in their Further Memorandum that they have filed a
complaint with the Canadian Society of Immigration Consultants regarding their
former representative. Ms. Hare has submitted an affidavit to that effect.
However, no complaint is in evidence before this Court and no detail is
provided with respect to that complaint. Nor has an explanation from the former
representative been provided. As such, the applicants have not satisfied the
required evidentiary burden. I therefore conclude that there was no breach of natural
justice.
[41]
Despite
having concluded that the Board’s decision, with respect to inclusion under
sections 96 and 97 of the IRPA is not reviewable, I will continue to
consider the question of exclusion. This is because, as the Federal Court of
Appeal pointed out in Jayasekara, above at paras 1 to 3, the
determination that a person is excluded as a Convention refugee under article
1F(b) has impacts beyond sections 96 and 97 of the IRPA. It means, for
instance, that the person can not receive refugee protection under section 95
of the IRPA (due to the combined effect of paragraphs 95(1)(c) and
112(3)(c)) and cannot obtain permanent resident status on an application for
protection under section 112 of the IRPA (due to paragraph 114(1)(b)).
3) Did the Board err by
applying the criteria set forth in Jayasekara to find that Mr. Nava Flores was
excluded from refugee protection despite the fact that he had completed his
sentence for the crime in question?
[42]
Article
1F(b) of the Convention states:
|
F. The provisions of
this Convention shall not apply to any person with respect to whom there are
serious reasons for considering that:
. . .
( b ) He has
committed a serious non-political crime outside the country of refuge prior
to his
admission to that country as a refugee;
|
F. Les dispositions
de cette Convention ne seront pas applicables aux personnes
dont on aura des raisons sérieuses de penser:
[…]
b) qu’elles ont
commis un crime grave de droit commun en dehors du pays
d’accueil avant d’y être admises comme réfugiés;
|
[43]
Section
98 of the IRPA incorporates article 1F(b) of the Convention as
follows:
|
Exclusion
— Refugee Convention
98.
A person referred to in section E or F of Article 1 of the Refugee Convention
is not a Convention refugee or a person in need of protection.
|
Exclusion
par application de la Convention sur les réfugiés
98. La
personne visée aux sections E ou F de l’article premier de la Convention sur
les réfugiés ne peut avoir la qualité de réfugié ni de personne à protéger.
|
[44]
The
applicants argue that if an individual who has committed a “serious non-political
crime” abroad has completed the terms of his or her sentence, then he or she
should be exempted from the application of article 1F(b) of the Convention
(i.e. section 98 of the IRPA does not apply to exclude them from
claiming protection under sections 96 and 97). They claim that Mr. Nava
Flores had completed his sentence and, as such, the Board erred in finding that
he was excluded from seeking protection due to section 98 of the IRPA and
article 1F(b) of the Convention. The applicants rely on obiter of
the Supreme Court of Canada in Canada (Attorney General) v Ward, [1993]
2 SCR 689, 103 DLR (4th) 1 at para 75 [Ward] and Pushpanathan v
Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, 160 DLR (4th) 193 at
para 73, as well as the Federal Court of Appeal’s decision in Chan v Canada
(Minister of Citizenship and Immigration), [2000] 4 FC 390, 190 DLR (4th) 128 (CA) [Chan]
to support their argument.
[45]
However,
as the applicants are well aware, the Federal Court of Appeal in Jayasekara,
above, had the opportunity to revisit the interpretation of article 1F(b) of
the Convention in light of the new IRPA. The Court compared the provisions
governing ineligibility under the old Immigration Act, RSC 1985, c I-2 [Immigration
Act] with those in the current IRPA and determined that “under the
IRPA, the rule as to ineligibility has changed” (Jayasekara, above at
para 32). Given this change, the Court went on to find that sentence completion
no longer exempts a person from the application of article 1F(b) of the Convention.
At para 57, the Court indicated:
The answer to the following question:
Does serving a sentence for a serious
crime prior to coming to Canada allow one to avoid the application of Article
1F(b) of the Convention relating to the Status of Refugees (Convention)?
is no.
[46]
The
applicants argue that the differences referred to by the Court are illusory. In
particular, they argue that the Federal Court of Appeal erred in describing the
operation of the ineligibility rule under the old Immigration Act as
well as the operation of the ineligibility rule under the new IRPA to
arrive at the conclusion that the two schemes were different when, in fact, they
are essentially the same.
[47]
The
Federal Court of Appeal in Jayasekara, above at para. 31, described the
ineligibility rule created under subparagraph 46.01(1)(e)(i) of the Immigration
Act by saying that:
. . . a claimant [is] ineligible for a
refugee hearing if he was inadmissible to Canada on account of serious
criminality unless . . . the Minister was satisfied that the claimant had
rehabilitated himself or herself and five years had elapsed since the
expiration of any sentence imposed for the offence or since the commission of
the act or omission.
[48]
The
applicants argue that this description is incorrect because it ignores the fact
that under subparagraph 46.01(1)(e)(i), in order for a person to be ineligible
for a hearing, the Minister had to also issue a danger opinion. Thus, a
person was not automatically ineligible for a refugee hearing just
because they had been deemed inadmissible to Canada on account of serious
criminality; a danger opinion was also needed. In effect, the Applicants argue
that the correct description of the ineligibility scheme under the old Immigration
Act would be achieved if the Federal Court of Appeal’s description was
modified as follows:
. . . a claimant [is] ineligible for a
refugee hearing if the Minister is of the opinion that the person
constitutes a danger to the public in Canada and he was inadmissible to
Canada on account of serious criminality unless . . . the Minister was
satisfied that the claimant had rehabilitated himself or herself and five years
had elapsed since the expiration of any sentence imposed for the offence or
since the commission of the act or omission.
[49]
The
applicants essentially submit that there are three basic elements required for
ineligibility under subsection 46.01(1)(e)(i) of the old Immigration Act:
a) a danger opinion, b) the person was convicted of an offence that, if committed
in Canada, would constitute an offence under an Act of Parliament that is
punishable by a maximum term of imprisonment of at least 10 years, and c) the
Minister is not of the opinion that the person has been rehabilitated (assuming
five years had elapsed since the expiration of any sentence imposed or since
the commission of the act).
[50]
The
applicants essentially argue that these are the same three elements that are
required for ineligibility under the new IRPA.
[51]
The
Federal Court of Appeal described the ineligibility rule established under the
new IRPA (rooted in paragraph 101(1)(f)), in Jayasekara, above at
para 32, by saying that:
. . . a claimant, who is
inadmissible by reason of serious criminality, now remains eligible for a
refugee hearing unless the “Minister is of the opinion that the person is a
danger to the public in Canada and the conviction is for an offence that, if committed in
Canada, would constitute an offence under an Act of Parliament that is
punishable by a maximum term of imprisonment of at least 10 years.”
[52]
The
applicants argue that this description is inaccurate as well. They argue that
the Federal Court of Appeal failed to mention that, because of paragraph
36(3)(c) of the IRPA, a person is not inadmissible due to serious
criminality if he or she is deemed by the Minister to have been rehabilitated.
Thus, they submit, a person who has been deemed to have been rehabilitated is not
ineligible under paragraph 101(1)(f). Given this, the applicants submit that
under the new legislative scheme, the same three basic elements are required
for ineligibility as under the old Immigration Act: a) a danger opinion,
b) the person was convicted of an offence that, if committed in Canada, would
constitute an offence under an Act of Parliament that is punishable by a
maximum term of imprisonment of at least 10 years, and c) the Minister is not
of the opinion that the person has been rehabilitated (assuming the ‘prescribed
period’ of time has passed).
[53]
In
light of the above analysis, the applicants submit that the Federal Court of
Appeal erred in its decision to depart from Chan with respect to the
effect of sentence completion. They argue that this decision was based on the
erroneous conclusion that the rule concerning ineligibility for serious criminality
was “reversed” under the IRPA when, in fact, the legislative scheme is
virtually identical.
[54]
As
interesting as the analysis offered by the applicants is, this Court is bound, under
the doctrine of stare decisis, by the decision of the Federal Court of Appeal
in Jayasekara, above. In both Chawah v Canada (Minister of
Citizenship and Immigration), 2009 FC 324 at para 12, 79 Imm LR (3d) 262 and Noha,
above at paras 24 and 48, this Court cited Jayasekara for the
proposition that sentence completion is no longer determinative of the
application of article 1F(b) of the Convention (i.e. although sentence
completion used to mean that article 1F(b) did not apply to exclude a claim for
refugee protection, it no longer does). Given this, I can not find that the
Board erred in failing to consider whether Mr. Nava Flores could avoid the
application of article 1F(b) of the Convention by virtue of having
completed his sentence.
4) Did the Board err in
its analysis of the seriousness of the crime by misapplying the factors set
forth in Jayasekara?
[55]
The
applicants argue that the Board made a number of errors in determining that Mr.
Nava Flores’ weapons offence amounted to a “serious non‑political crime”
within the meaning of article 1F(b) of the Convention. Specifically,
they argue that the Board erred in assessing seriousness by: a) considering the
severity of the sentence imposed in the US, b) failing to consider the fact
that Mr. Nava Flores had completed his sentence (or at least the part of it
that he was permitted to complete), and c) speculating on what Mr. Nava Flores
might have done with the weapon had he been allowed to keep it.
[56]
Upon
reviewing the submissions of both parties, I am satisfied that the Board did
not make any errors that would render its determination unreasonable.
4.1)
Did the Board err with respect to the
consideration that it afforded to the severity of the sentences imposed in the US?
[57]
The
applicants initially argued that there was no ‘equivalent’ offence in Canada for the
offence that Mr. Nava Flores committed in the US, namely unlawful
possession of a firearm by an illegal alien. At the hearing, the applicants
clarified that they do not dispute the equivalency of the offence per se.
Rather, they fault the Board for having considered and characterized the length
of the sentence imposed in the US without considering that one of the
punishable elements of the offence is not a punishable element in Canada, namely
being an “illegal alien”. The applicants suggest that the Board erred by considering
the length of the sentence in isolation. They argue that it was inappropriate
to further punish the applicant for an element that is not a crime in Canada.
[58]
In
Jayasekara, above, the Federal Court of Appeal stated that the length of
a sentence was not to be looked at in isolation. The Court also determined that
the length of a sentence was not a determinative factor. At paras 41-44, the
Court indicated:
[41] I agree with counsel for the
respondent that, if under Article 1F(b) of the
Convention the length or completion of a sentence imposed is to be considered,
it should not be considered in isolation. There are many reasons why a lenient
sentence may actually be imposed even for a serious crime. That sentence,
however, would not diminish the seriousness of the crime committed. On the
other hand, a person may be subjected in some countries to substantial prison
terms for behaviour that is not considered criminal in Canada.
[42] Further, in many countries,
sentencing for criminal offences takes into account factors other than the
seriousness of the crime. . . .
. . .
[44] I believe there is a
consensus among the courts that the interpretation of the exclusion clause in
Article 1F(b) of the Convention, as regards the
seriousness of a crime, requires an evaluation of the elements of the crime,
the mode of prosecution, the penalty prescribed, the facts and the mitigating
and aggravating circumstances underlying the conviction. . . .
[59]
With
respect, the Board in this case did not consider the length of Mr. Nava Flores’
sentence in isolation. Instead, it considered the sentence imposed along with
other factors, key among which was the maximum sentence set out for the
‘equivalent’ offence under the Criminal Code. As such, I cannot conclude
that the Board’s finding was unreasonable. It does not warrant the
intervention of the Court.
4.2)
Did the Board err in failing to weigh the fact
that Mr. Nava Flores had completed his sentence, or in the alternative, the
part of his sentence that he was permitted to complete before being deported to
Mexico?
[60]
The
applicants argue that the Board failed to weigh the fact that Mr. Nava Flores
had completed his sentence (or, at least, the part of it that he was permitted
to complete) in its determination of the seriousness of the offence. The applicants
contend that the completion of one’s sentence is a critical factor, even
according to Jayasekara, above. They further point out that the Board’s
only mention of sentence completion was brief and erroneous. The Board said
that Mr. Nava Flores “was sentenced to 24 months imprisonment and to 24
months’ probation, which could not be counted if he were deported from
the United States” [emphasis added]. The applicants argue that the terms of Mr.
Nava Flores’ sentence allowed him to serve the probationary period outside of
the US and that, as
a result, by the time the Board made its determination, the sentence had been
completely served.
[61]
The
respondent argues that the Federal Court of Appeal in Jayasekara, above,
established that the Board can exclude a refugee claimant under article 1F(b)
regardless of whether a sentence given outside Canada has been
served. The respondent also submits that when Mr. Nava Flores entered Canada, he had not
completed his sentence. The respondent relies on a passage from Chan,
above, to support the proposition that the sentence had to be completed prior
to entry into Canada. The applicants,
for their part, argue that the relevant date should be the date of
determination of the refugee claim, not the date of entry into Canada.
[62]
Ultimately,
I do not find that the Board made an error that warrants the intervention of
this Court. I agree with the applicants that the Board erred when it noted
that Mr. Nava Flores could not serve the probationary period of his sentence
outside the US. However, I
do not consider that this error was determinative. In Jayasekara, above
at para 41, the Federal Court of Appeal stated that “the length or completion
of a sentence imposed… should not be considered in isolation…” [emphasis
added] The completion of a sentence is not a determinative factor. The Federal
Court of Appeal concluded, in no uncertain terms, that having served a sentence
prior to coming to Canada does not preclude exclusion under article 1F(b).
[63]
Since
sentence completion (or the lack thereof) was not a determinative factor in
this case, it is unnecessary to determine whether the relevant time for
assessing sentence completion is on entry into Canada or on
determination of the refugee claim.
4.3)
Did the Board err by concluding that Mr. Nava
Flores had not discounted the possibility of using the firearm and by
considering this possibility as an aggravating factor?
[64]
The
applicants submit that the Board erred in concluding that Mr. Nava Flores had
not discounted the possibility of eventually using the firearm. They argue that
there was no evidentiary basis before the Board for it to make a finding as to
Mr. Nava Flores’ intentions with respect to the gun and that the Board
essentially reversed the burden that rests on the Minister to prove that the
claimant committed a serious non-political crime. With respect, I disagree.
[65]
It
was not unreasonable for the Board to conclude that Mr. Nava Flores had not
discounted the possibility of eventually using the gun, and even that there was
a strong possibility that he might use the gun. It made this conclusion,
as the respondent rightly points out, based on the evidence that: a) Mr. Nava
Flores had bought the gun to protect himself from racism and ridicule, and b)
the events which prompted the purchase of the gun were ongoing. Given this, the
Board’s inferences were not unreasonable.
[66]
Ultimately,
the Board’s determination that Mr. Nava Flores had committed a serious
non-political crime which excluded him from refugee protection was not
unreasonable. Its conclusion was based on its assessment of relevant factors,
namely the punishment provided in Canada for the equivalent offence, the
sentence actually imposed in the US, the fact that the offence was committed by
Mr. Nava Flores while he was on probation for a violent crime and the fact that
there was a possibility that Mr. Nava Flores might use the gun, given that he
had purchased it for protection and had already been ridiculed and threatened.
Questions
proposed for certification
[67]
The
applicants propose two questions for certification. The first question is:
1) For the purposes of
determining the applicability of Article 1F(b) of the Refugee Convention,
should the Board consider the status of the foreign sentence at the date of the
entry into Canada or at the date of adjudication of the claim?
[68]
The
applicants argue that the question meets the test for a question to be
certified because it transcends the interests of the parties, contemplates a
question of broad significance and is determinative of the judicial review.
[69]
The
respondent argues that Jayasekara, above, stands for the proposition
that completion of a sentence does not shield a refugee claimant from exclusion
under article 1F(b) of the Convention, that it is not a determinative
factor and that it should not be considered in isolation. The respondent
further indicates that a question regarding the timing or completion of a
sentence in the context of exclusion under article 1F(b) was already certified
in Jayasekara and that the Federal Court of Appeal refused to answer
that question.
[70]
In
Zazai v Canada (Minister of Citizenship and Immigration), 2004 FCA 89, 318 NR 365, the Federal Court of Appeal underscored the requirement
that in order to be subject to certification a question must be dispositive of
the appeal. In Boni v Canada (Citizenship and Canada), 2006 FCA
68, 357 NR 326, the Federal Court of Appeal discussed the subject again and
reiterated the same principal:
10 . . . It is trite
law that a question that does not transcend the decision in which it arose
should not be certified, and in such a case the Court of Appeal should not
answer it (see Wong v. Canada (Minister of Citizenship and
Immigration), [1999] F.C.J. No. 1049; Canada (Minister of Citizenship and
Immigration) v. Liyanagamage, [1994] F.C.J. No. 1637,
(1994) 176 N.R. 4 at paragraph 4).
11 I feel it would be useful to add
that it would not be appropriate for the Court to answer the certified question
because the answer would not do anything for the outcome of the case (Liyanagamage, supra).
[71]
As
I said earlier in this decision, I do not consider that the completion of the applicant’s
sentence was a determinative factor in this case, and, therefore, it cannot be
said to be determinative of the appeal.
[72]
The
second question proposed by the applicants is as follows:
2) Does the completion
of a criminal sentence allow a refugee claimant to avoid the application of
Article 1F(b) of the Convention in respect to that crime?
[73]
The
applicants submit that they have advanced compelling grounds in the course of
their argument that would justify the Federal Court of Appeal revisiting or
further explaining its findings in Jayasekara, above. The applicants also
point out that the decision in Jayasekara was never affirmed by the
Supreme Court of Canada as an appeal was never filed.
[74]
The
respondent argues that the proposed question has already been addressed and
answered by the Federal Court of Appeal in Jayasekara and that questions
which have already been canvassed and settled should not be certified. They
submit that mere disagreement with the reasons of the Federal Court of Appeal
in Jayasekara does not justify certification. I agree.
[75]
In
Jayasekara the following question was certified and answered:
The answer to the following question:
Does serving a sentence for a serious
crime prior to coming to Canada allow one to avoid the application of Article
1F(b) of the Convention relating to the Status of Refugees (Convention)?
is no.
[76]
The
question proposed by the applicants is essentially the same question. In Dubrézil
v Canada (Minister of
Citizenship and Immigration), 2006 FC 142 at para 16,
149 ACWS (3d) 133, Justice Noël found that the
question at issue in that case “should not be certified since it
is an issue that has already been settled by the courts, which therefore does
not transcend the interests of the parties.” The same principle applies in this
case. As interesting and compelling as the applicants’ arguments are, the
Federal Court of Appeal has already definitively addressed the proposed certified
question.
[77]
For the above reasons, no question will be
certified.
[78]
For
all of the reasons above, the application for judicial review is dismissed.
JUDGMENT
THIS COURT ORDERS this
application for judicial review to be dismissed. No question is certified.
“Marie-Josée
Bédard”
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