Date: 20120523
Docket: IMM-7164-11
Citation: 2012 FC 618
Toronto, Ontario, May 23, 2012
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Applicant
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and
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VINOD KUMAR RAINA
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
I. Overview
[1]
Sexual
interference is assimilated with sexual aggression. In the present case, in
regard to a child, it is viewed as a violent assault, a violent and serious
crime (Bossé
v R,
2005 NBCA 72 at paras 4-10). In immigration matters, it is a serious
non-political crime. The notion of a serious non-political crime may be
assimilated to the notion of serious criminality defined in subsection 36(1) of
the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]
(Németh v Canada, 2010 SCC 56, [2010] 3 S.C.R. 281 at paras 7, 44, 45, 120;
Naranjo v Canada (Minister of Citizenship and Immigration), 2011 FC 1127
at para 8).
II. Introduction
[2]
The
Supreme
Court of Canada determined that sexual aggression is a serious crime (R v
Find, 2001 SCC 32, [2001] 1 S.C.R. 863 at para 88; R v Grant, 2009 SCC 32, [2009] 2
SCR 353 at para 222; Canadian Newspapers Co. v Canada (Attorney General),
[1998] 2 S.C.R. 122 at para 19).
[3]
It
was erroneous for the Refugee Protection Division of the Immigration and Refugee
Board [Board] to use a test developed by the Federal Court of Appeal
specifically for section 36 of the IRPA when the issue was one
of exclusion and not inadmissibility (Jayasekara v Canada (Minister of
Citizenship and Immigration), 2008 FCA 404, [2009] 4 FCR 164 at paras
37-46). They are not interchangeable.
[4]
In
Jayasekara, above, the Federal Court of Appeal determined that a
relevant factor of consideration was whether in most jurisdictions the act in
question would be considered a serious crime (Jayasekara at paras 38, 50-52,
54).
III. Judicial Procedure
[5]
This
is an application pursuant to subsection 72(1) of the IRPA for judicial
review of a decision made by the Board, dated June 2, 2011, wherein the Board
rejected the Respondent’s application for refugee protection in Canada. The
Board determined that the Respondent was neither a Convention refugee within
the meaning of section 96 of the IRPA nor a person in need of protection
within the meaning of section 97 of the IRPA because his account of the
circumstances that led him to flee his native country, India, were not
sufficiently credible; however, the credibility aspect of the decision is not
challenged before the Federal Court. Rather, the issue at bar concerns whether
the Board accurately determined whether the Respondent was excluded from
refugee protection in Canada because of his criminal history. The Board
determined that the Respondent was not excluded from refugee protection. It is on
this specific aspect of the decision that the Applicant Minister challenges it.
IV. Background
[6]
This
is the second time the Respondent, Mr. Vinod Kumar Raina, comes before the Court in judicial
review of his refugee determination. On November 4, 2009, the Board first
decided that Mr. Raina was ineligible for refugee protection in Canada
because he was excluded on the basis of article 1F(b) of the United
Nations Convention relating to the Status of Refugees, July 28, 1951, 189
UNTS 137, Can TS 1969 no 6 [Convention], in Raina v Canada (Minister of
Citizenship and Immigration), 2011 FC 19, 382 FTR 135 [Raina 1]. On
judicial review, the Federal Court overturned this decision because the Board
failed to apply an appropriate test in its 1F(b) analysis.
[7]
Mr. Raina bases his claim for
refugee protection on the following circumstances.
[8]
Mr. Raina is a citizen of
India. He came to Canada in October 2006 and claimed refugee protection because
he faced harassment, threats and torture from police in the State of Jammu and
Kashmir. These problems previously led him to flee India in 1999 for New
Zealand. In 2001, while still in New Zealand, Mr. Raina was convicted of sexual
intercourse or indecency in respect of a young female between the ages of 12
and 16 as described in paragraph 134A(2)(a) of the New Zealand Crimes
Act of 1961 [NZ], 1961/43 [NZCA]. Mr. Raina served 18 months in
prison and then was deported to his country of origin, India, in July of 2003.
[9]
Upon
his return to India, officials detained and
questioned him at the airport and then allowed him to go with certain conditions.
He explained that, after this, he had had no problems between 2003 and 2006.
[10]
Beginning
in January 2006, Mr. Raina’s problems
resurfaced. In January 2006, Mujaheddin came into the small provisions store
operated by Mr.
Raina and took goods without
paying. Mr. Raina was warned to serve other members of their organization gratuitously
and was threatened that he would be killed if he went to the police.
[11]
On
the following day, police raided Mr. Raina’s house, arrested and detained him. The police
also questioned him about any links he might have had to any extremist
organizations. The police accused Mr. Raina of sheltering and helping militants. Six
days later, Mr. Raina’s father bribed the police and he was released; however,
he had to report to the police on a monthly basis and was prohibited from
leaving the state of Jammu and Kashmir.
[12]
In
June 2006, during one of his monthly reports to the police, Mr. Raina was directed to testify
against militants. Frightened, he left his home and hid in the Punjab for one
month. In July 2006, he moved to Delhi until October 2006, when he left for
Canada. He arrived in Canada on October 21, 2006 and requested asylum on
February 26, 2007.
[13]
Mr. Raina declared his conviction
in New Zealand on his Personal Information Form [PIF]. For this crime, Mr. Raina was sentenced to 30
months of incarceration. Mr. Raina served 18 months
of this sentence and was then deported to India. For the same incident that led
to this conviction, Mr.
Raina was also charged with
the more serious crime of sexual intercourse with an individual (female)
between 12 and 16 years of age; however, he was never convicted of this crime.
[14]
At
the most recent hearing before the Board, Mr. Raina maintained that he was unjustly convicted.
He explained that the circumstances surrounding his conviction were that he kissed
a relative of his wife on the cheek who was 14 years old. This young female, Ms. Moetu, asked him one night to
take her out for dinner and buy her cigarettes. Mr. Raina accepted and, at the end of the night, he
kissed her on the check. The kiss was a “cultural kiss” and this was a usual
way to say goodbye to someone in his family. The next morning he was arrested
by the police and accused of sexual intercourse or indecency on an individual
(female) between 12 and 16 years of age. The young female offered to withdraw
her complaint in exchange for money; however, Mr. Raina was advised to plead “not guilty” and proceeded
with his trial. A jury convicted him of indecency in respect of a young female
between 12 and 16 years of age, but acquitted him of the more serious crime of
sexual intercourse.
V. Decision under Review
[15]
The
Board applied a combination of the first two tests, as in Hill v Canada (1987),
73 NR 315, [1987] FCJ No 47 (QL/Lexis), to determine whether the crime committed by
Mr. Raina was a serious non-political crime (Hill at para 16).
[16]
The
Board noted
that Mr.
Raina was
charged under subsection 134(2) of the NZCA which is defined as “sexual
intercourse or indecency on a girl aged between 12 and 16”.
[17]
The
Board concluded that the NZCA merged three infractions that are
separately defined in Canadian criminal law; sexual assault defined at subsection
265(2) of the Criminal Code, sexual interference defined at section 151
of the Criminal Code and offences tending to corrupt morals, defined at
sections 163 to 171 of the Criminal Code.
[18]
Accordingly,
the Board then applied the second test in Hill, above, which indicates
that the Board must examine the evidence to determine whether “the essential
ingredients of the offence in Canada had been proven in the foreign
proceedings” (Hill at para 16).
[19]
The
Board determined that there were three versions of the incidents that led to
the Mr. Raina’s conviction. First,
there was Mr. Raina’s version wherein he
stated that he kissed Ms. Moetu on the
cheek, it was a cultural kiss and there was no intention behind it. Second,
a letter from Mr. Raina’s criminal defence lawyer describing the incident
as more serious than he did himself (rather than as first mentioned) an
assault involving kissing and touching. Finally, Ms. Moetu stated that Mr. Raina kissed her and touched
her everywhere.
[20]
The
Board determined that Mr. Raina’s New Zealand conviction was compelling
evidence that a crime was committed and that there are serious reasons to
believe that he kissed and touched a girl between the ages of 14 and 16 for
sexual purposes and that the kiss was not a “cultural kiss”.
[21]
The
Board then determined that the crime committed by Mr. Raina was a serious
non-political crime and evaluated the factors set out in Jayasekara,
above. The Board acknowledged that sexual interference was an abhorrent act.
The Board also noted that sexual interference could be prosecuted in Canada by
way of indictment or by way of summary conviction and determined that, while
sexual interference was always a crime, it observed that the penalty imposed on
Mr. Raina was 30 months. The
Board also determined it was not able to draw any conclusions about the
seriousness of the incident from the sentence because it had no evidence
regarding sentencing practices in New Zealand. The Board then analyzed Canadian
case law on sexual interference and mentioned several cases in which
individuals received between two and nine months for offences from touching and
kissing a 14 year old girl to offences such as sexually assaulting a girl
between the ages of 5 and 8 for four years. From this analysis, the Board
determined that if Mr.
Raina’s
crime had been committed in Canada, he likely would not have received a 30
month sentence.
[22]
The
Board noted that the young age of the victim was an aggravating circumstance.
It concluded that the circumstances of Mr. Raina’s crime did not reach the level of a serious
non-political crime. Consequently, Mr. Raina was not excluded from obtaining refugee
protection in Canada pursuant to article 1F(b) of the Convention.
[23]
The
Board then considered whether Mr. Raina met the criteria for
obtaining refugee protection in Canada and determined that he was not credible
enough to establish a reasonable fear of persecution. The Board found that,
based on Mr. Raina’s testimony,
neither the police nor the militants were interested in him. Accordingly, the
Board found that Mr.
Raina was neither a
Convention refugee nor a person in need of protection.
VI. Issue
[24]
Was
the Board’s
determination that Mr. Raina was not excluded
from refugee protection for lack of serious reasons to believe that he
committed a serious non-political crime reasonable?
VII. Standard of Review
[25]
The
Minister argues that the issue of whether Mr. Raina’s crime rises to the level of a serious
non-political crime is a question of law and of general importance to the legal
system. Accordingly this issue is reviewable on the correctness standard (Pushpanathan
v Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; Chieu
v Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1
SCR 84 at para 20; Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at
paras 50, 60; Canada (Minister of Citizenship and Immigration) v Khosa,
2009 SCC 12, [2009] 1 S.C.R. 339 at para 44; Canada (Minister of Citizenship
and Immigration) v Ammar, 2011 FC 1094 at paras 11-12).
[26]
Mr. Raina argues that the standard
of review is reasonableness (Dunsmuir, above, at paras 47, 53, 55, 62; Khosa,
above; Jayasekara, above, at paras 14, 56). The Board is a specialized
tribunal and questions of fact fall within its realm of expertise. Further, the
Board is entitled to determine how much weight to accord to each piece of
evidence and this Court ought not substitute its own findings with that of the
Board’s.
VIII. Analysis
[27]
In
respect of Mr.
Raina’s arguments,
it is important to note that despite the Minister’s request to bring official documents
regarding his conviction in New Zealand, he failed to do so. Mr. Raina’s own testimony about
the crime was inconsistent and determined not credible by the Board; therefore,
the Board erred in relying on Mr.
Raina’s testimony in its analysis.
[28]
The
Board analyzed the title section of section 134 of the NZCA rather than
the actual disposition under which Mr. Raina was charged.
[29]
Deciding that a person is
excluded from refugee protection according to 1F(b) of the Convention is
not a determination that a person is guilty of a crime based on the criminal
law standard of proof. The Minister does not have to prove beyond a reasonable
doubt that Mr.
Raina is
guilty. Rather, the burden of proof is simply one of serious reasons for
considering that Mr. Raina committed a serious
non-political crime (Lai v Canada (Minister of Citizenship and Immigration),
2005 FCA 125 at para 23). This standard is higher than a mere suspicion but
less than a balance of probability (Mugesera v Canada (Minister of
Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100 at para 114).
[30]
The
law imposes a presumption of seriousness if a crime is punishable in Canada by
more than ten years of imprisonment (Chan v Canada (Minister of Citizenship
and Immigration), [2000] 4 FC 390 (CA) at para 9; Jayasekara, above,
at para 40, 43, 44, 48).
[31]
The
Supreme Court determined in the context of the Extradition Act, SC 1999,
c 18 [EA], that a crime punishable by 10 years of imprisonment or more
is a serious non-political crime (Németh, above, at para 120). The
notion of a serious non-political crime may be assimilated to the notion of
serious criminality defined in subsection 36(1) of the IRPA (Németh,
above, at paras 7, 44, 45, 120; Naranjo, above, at para 8).
[32]
In
Canada, hybrid offences are treated as indictable offences unless the Crown
elects to proceed by way of summary conviction. The Board was to first
determine whether a presumption of a serious non-political crime exists before
examining if there are mitigating circumstances. It is for a claimant to be
responsible for submitting evidence of mitigating factors.
[33]
The
Board committed an error in failing to determine that a crime punishable by at
least 10 years of imprisonment in Canada constitutes a serious non-political
crime. The Board erred, when it determined that because the Canadian offence of
sexual interference was a hybrid offence, it could be considered not serious;
the Board erred when it determined that seriousness of a crime in the context
of exclusion had to be distinguished from an inadmissibility analysis.
[34]
On
a previous decision, in the same matter, an earlier Board panel had determined that Mr. Raina’s actions
constituted sexual interference as defined in section 151 of the Criminal
Code. This Court had set aside that determination because the Board failed
to apply one of the three tests as described in Hill, above (reference
is also made to Raina 1, above, at paras 9-11).
[35]
In
the current decision under review, the Board applied the second test enunciated
in Hill, above; however, the Board had no credible evidence on which to
rely in using the second test in Hill. The only evidence adduced
regarding Mr.
Raina’s conviction is his
shifting testimony, judged not to be credible by the Board.
[36]
The
Board’s conclusion that no evidence was submitted regarding the meaning of the
word assault in New
Zealand
law requires scrutiny. The meaning of the word is quite plain and can be found
in the Oxford English Dictionary; it was unnecessary for the Board to adduce
evidence regarding its interpretation in New Zealand law. The Minister alleges
that the offence for which Mr. Raina
was charged contains every type of sexual assault on a young female between 12
and 16 years of age that is not sexual intercourse. Accordingly, the specific
facts of the case could be quite varied. As no credible evidence exists to
establish the facts which gave rise to the accusations, the Board erred in
applying the second test in Hill, above.
[37]
The
prohibition of touching with sexual intent, both criminalize a broad range of
acts in respect of a child; that, in and of itself, requires determination of a
specific nature.
[38]
The Minister had clearly
requested that Mr. Raina adduce documents for
the Board relating to his conviction. Mr. Raina never explained his failure to do so.
[39]
The word assault implies
violence, attack or aggression. In Canadian case law, sexual touching without
consent amounts to assault and is considered violent (Bossé, above, at
paras 14-15).
[40]
In Canada, sexual interference is
assimilated with sexual aggression and is considered a serious and violent
crime even when no actual force is used (Bossé, above, at paras 14-15).
Even when no force is used during sexual aggression, it is always considered
violent because it is without the consent of the victim (R v Daigle,
[1998] 1 S.C.R. 1220 at para 25).
[41]
The Supreme Court
determined that sexual aggression is a serious crime (Find, above; Grant,
above; Canadian Newspapers, above).
[42]
This Court has previously
determined that kissing a minor was equivalent to sexual interference in Canada
and that this act was a serious crime pursuant to article 1F(b) of the
Convention (Roberts v Canada (Minister of Citizenship and Immigration),
2011 FC 632, 390 FTR 241 at paras 6, 31). In this case, even Mr. Raina admitted to having
done more so when he admitted to touching the child.
[43]
The
Board failed to consider that Mr.
Raina abused the trust of his victim; failed to consider whether a presumption
of a serious crime existed before considering mitigating or aggravating
circumstances; and, failed to infer that psychological harm occurred to the
victim because she was a minor. These failures, in and of themselves,
constitute grounds for judicial review.
[44]
The
Board did not follow the test as set out by the Federal Court of Appeal in Jeyasakara,
above, failing to consider the essential elements of the crime. The Board
erroneously relied on Mr. Raina’s version of events
which was not supported by the evidence, even that of his own subsequent
testimony.
[45]
It
was erroneous for the Board to use the test developed by the Federal Court of
Appeal for section 36 of the IRPA when the issue was one of exclusion
and not inadmissibility (Jayasekara, above, at paras 37-46). They
are not interchangeable.
[46]
In Jayasekara,
above, at paragraphs 38, 50-52, 54, the Federal Court of Appeal determined that
a relevant factor of consideration was whether in most jurisdictions the act in
question would be considered a serious crime.
[47]
Canadian
law treats sexual interference as a serious crime. Five elements of the crime
militate in favour of considering it as a serious crime. First, sexual
interference affects the sexual integrity of victims under the age of 16 years;
Canada considers it an abhorrent crime (R v Oldford, 2009 NLTD 124, 288
Nfld & PEIR 203 at para 13,). Second, as sexual interference is serious
criminality pursuant to subsection 36(1) of the IRPA). Third, even if
the offence is tried by way of summary conviction, it is still considered to be
a serious offence. The maximum term of imprisonment if someone is
prosecuted by way of summary conviction is eighteen months which is three times
the punishment for all other summary offences (Criminal Code, at
787(1)). Fourth, unlike the vast majority of offences in the Criminal Code,
section 151 imposes a minimum term of imprisonment. Finally, sexual
interference is a designated offence for the purpose of the forensic DNA data
bank. All these factors demonstrate that this crime is considered as serious in
the intention of Parliament.
[48]
For
all of the above reasons, the Applicant’s application for judicial review is granted and the
matter is remitted for redetermination by a differently constituted panel.
JUDGMENT
THIS COURT
ORDERS that the application for judicial
review be granted and the matter be remitted for redetermination by a differently
constituted panel. No
question for certification.
“Michel M.J. Shore”
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