Docket: IMM-7179-10
Citation: 2011 FC 1147
Ottawa, Ontario, October
7, 2011
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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KAMAL SAIDE ABU GANEM
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
applicant is a 39 year old citizen of Israel. He is a Palestinian
Arab who, together with his wife and four children, made a refugee claim upon
arrival at Toronto in October,
2008. In a decision dated November 9, 2010 the Refugee Protection Division of
the Immigration and Refugee Protection Board (RPD) the applicant was found to
be excluded from refugee protection in Canada pursuant to Article 1 F(b) of the
United Nations’
Convention Relating to the Status of Refugees, [1969] Can TS No 6 (the Convention)
for
having committed a serious non-political crime. The applicant’s wife and four
children were found to be persons in need of protection pursuant to section
97(1) of the Immigration and Refugee Protection Act, SC 2001 c 27 (IRPA).
[2]
The
applicant seeks to set aside the decision that he is, by reason of his past
criminal conduct, excluded from the refugee determination process. For the
reasons that follow, the application for judicial review of that decision is
dismissed.
Background
[3]
In
2001, the applicant’s sister was murdered after she refused to marry Zayad Abu
Ganem, one of the applicant’s cousins. No one was convicted of her murder but
a feud subsequently erupted between the families. In 2002, the applicant’s brother
sought revenge against his cousins for the murder of their sister. The
applicant’s brother intended to kill those who or when he thought murdered his
sister but he did not succeed. During a confrontation with his cousins, the
applicant’s brother killed another cousin and the applicant’s best friend,
neither of whom were involved in the murder of the sister.
[4]
The
applicant claims he was not present when these murders took place. He says that
his wife called him while he was at work and told him that there was a fight in
the street outside their house. He immediately drove to the scene of the
crime. He parked his car in a lane which could only fit one car. He states
that by the time he arrived, the victims had already been killed and he fled to
a neighbour’s house where he called the police. When the police arrived, they
accused him of purposefully blocking the road in order to assist his brother to
flee from the crime. He was arrested and detained.
[5]
The
applicant was released on bail. While he was out on bail his cousins tried to
kill him. The applicant was shot twice in the leg. The applicant subsequently
pled guilty to the charges against him. The applicant claims that he pled
guilty for the sole purpose of obtaining the protection of the Israeli police.
[6]
As
will be discussed in further detail later, there is some dispute as to the
precise offence to which the applicant pled guilty. The applicant testified
that he was convicted of accessory to manslaughter, but the RPD found
that he was convicted of manslaughter. In any event, the applicant was
sentenced by the Israeli court to six years in prison. His brother was
convicted of murder and sentenced to 25 years in prison.
[7]
The
feud did not end, however. The applicant’s cousins vowed to kill every member
of the applicant’s immediate family. The applicant testified that his father
was subsequently murdered in a revenge attack by his cousins. In consequence,
while the applicant was in prison, his wife and children were relocated and
placed under the protection of the Israeli police.
[8]
In
2008 the applicant was released from prison after serving approximately four
years of his six year sentence. The applicant then flew to Romania with his
wife and four children. They remained in Romania for one
month then came to Canada and made a refugee claim.
The proceedings before the Immigration
Division
[9]
The
applicant had a hearing before the Immigration Division of the Immigration and
Refugee Board of Canada to determine his admissibility to Canada. At that
hearing, counsel for the applicant and the
Minister agreed that the applicant was convicted of accessory to
manslaughter. The Immigration Division member accepted this
characterization of the applicant’s conviction and found that the Canadian
equivalent of the Israeli conviction was sections 21(1)(b) (parties to offence)
and 234 (manslaughter) of the Criminal Code, RSC 1985, c C-46 (Criminal
Code). The applicant was thus found to be inadmissible to Canada
pursuant to section 36(1)(b) of the IRPA for having been convicted of an offence outside Canada which, 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.
The proceedings before the Refugee Protection
Division
[10]
The
RPD concluded that the applicant committed the offence of manslaughter
in Israel. The RPD
found that this offence was equivalent to s. 234 of the Criminal Code, and that
under s. 236, the maximum sentence, if convicted in Canada, would be
life imprisonment. The RPD then turned to consideration of Article 1 F(b) of
the Convention, which is incorporated into Canadian law by section 98 of
the IRPA. Section 98 provides:
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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.
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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.
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[11]
Article
1 F(b) of the Convention is included in a Schedule to IRPA:
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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
serious non-political crime outside the country of refuge prior to his
admission to that country as a refugee;
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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;
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[12]
The
RPD noted that most jurisdictions in the world would view manslaughter as a
serious crime and that the six year sentence imposed on the applicant was
reasonable. The RPD considered the severity of the offence, the maximum
sentence in Israel, the
applicant’s term of imprisonment, the country in which the conviction and
sentencing took place and the circumstances that led to the act. The RPD was
not persuaded that there were any mitigating or aggravating circumstances
underlying the conviction which would militate against a finding of exclusion.
[13]
The
RPD concluded that blood-feuds do not have a nexus to a Convention
ground, but accepted that the applicant’s wife and four children were persons
in need of protection under section 97 of the IRPA.
The issues
[14]
The
issues in this application are:
a.
Whether
the RPD ignored evidence of mitigating circumstances underlying the conviction;
b.
Whether
the RPD erred in finding that the applicant was convicted of manslaughter
rather than accessory to manslaughter;
c.
Whether
the RPD was estopped from finding that the applicant was convicted of manslaughter;
and
d.
Whether
the reasons for decision are adequate.
[15]
The
first issue is to be reviewed on a reasonableness standard; the second is a mixed
question of fact and law to be assessed again, on a reasonableness standard. Whether
the RPD was estopped from finding that the applicant was convicted of
manslaughter is a question of law reviewed on a correctness standard. Adequacy
of reasons is a procedural fairness issue which is also reviewed on a standard
of correctness.
Legal framework
[16]
In
this case, there is no challenge to the integrity of the decision of the
Israeli courts. Nor does the applicant plead duress, provocation or self-defence.
Rather, the applicant argues before this Court that the RPD erred by ignoring
the applicant’s evidence of the following mitigating factors:
·
The
applicant arrived at the scene of the crime after the killings occurred and was
not directly involved in the killings;
·
He pled
guilty only to obtain police protection;
·
He was
convicted of accessory to manslaughter and not manslaughter;
·
He served
his sentence in Israel; and
·
He was
released early for good behaviour.
[17]
The
applicant relies on a number of academic articles discussing the purpose of
Article 1 F(b) of the Convention in support of his argument that these
factors should have militated against a finding of exclusion. In the Law of
Refugee Status (Toronto, Ont: Butterworths, 1991), Professor James Hathaway
expressed the opinion that the exclusion clause should not apply to cases where
a person had served their sentence or otherwise met their obligations under
criminal law. In The Refugee in International Law, 2nd ed
(Toronto, Ont: Oxford University Press, 1996) Professor Guy Goodwin-Gill argues
that completion of sentence, general good character, the isolated nature of the
offence and whether the offender was merely an accomplice are factors that can
rebut a presumption of serious criminality. Finally, the applicant points to
the UN High
Commissioner for Refugees, Handbook on Procedures and Criteria for
Determining Refugee Status (UNHCR Handbook), which confirms that
mitigating and aggravating circumstances are relevant to the exclusion
determination. As set out in paragraph 157 of the UNHCR Handbook,
mitigating circumstances might include a completed sentence or a pardon, while
aggravating circumstances might include a previous criminal record. The applicant
acknowledges that the argument that completion of sentence negates a finding of
exclusion has been rejected on two occasions by the Federal Court of Appeal.
[18]
The
applicant also relies on Rihan v Canada (Minister of Citizenship and
Immigration), 2010 FC 123, where Justice Leonard Mandamin found that it was
a reviewable error for the RPD to ignore evidence suggesting that the applicant
was innocent of the crimes for which he was convicted. In that case, the RPD
relied on evidence from Interpol that the applicant had been convicted of fraud
and other offences. In setting aside the decision, Justice Mandamin noted that
the member ignored evidence that the charges were fabricated and used as
leverage to force the repayment of an investment and that the complainant
withdrew his complaint when the debt was re-paid. Moreover, the member
confused restitution (in consequence of a conviction) with repayment of a civil
debt and, secondly, did not recognize that the use of the criminal process to
enforce payment of a civil obligation is not permitted under Canadian law.
Justice Mandamin held that the evidence of convictions was rebuttable and that
evidence from the applicant, his wife and his lawyer showing that he was
innocent, had to be considered.
[19]
In
Hernandez v Canada (Citizenship and
Immigration), 2010 FC 1323, Justice Michel Beaudry found that the member
unreasonably dismissed the applicant’s contention that she was a victim of a
corrupt legal system. The member found that Colombia had taken
steps to remedy corruption without dealing with the specific facts alleged by
the applicant. The member was unwilling to consider the evidence presented by
the applicant regarding the mitigating factors.
[20]
In
my view, both Rihan and Hernandez are distinguishable from the present
case. Unlike Hernandez, there is no challenge to the integrity
of the applicant’s conviction or the Israeli judicial system. In Rihan
the applicant’s refugee hearing was disjointed (three different members
presided at different times) and was plagued with translation problems. Furthermore,
Justice Mandamin placed considerable weight on the fact that the member made
erroneous findings of fact, together with the errors noted above.
[21]
In
Jayasekera v Canada (MCI), 2008 FCA 404, the Federal Court of Appeal
held that Article 1F(b) of the Convention 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”.
The inquiry is focused on the nature of the criminal act itself, and does not
engage “… a balancing of factors extraneous to the facts and circumstances
underlying the conviction, as for example, the risk of persecution in the state
of origin…” (per Letourneau J.A., para 44).
[22]
In
consequence, the RPD is not required to go behind the guilty plea and
conviction to determine whether the applicant committed the crime, nor does
Article 1F(b) of the Convention require the Minister to prove guilt
beyond a reasonable doubt. The Minister bears the burden of establishing the
seriousness of the crime, but the seriousness, once established, can be
rebutted by establishing mitigating factors or circumstances. Consistent with
its earlier decision in Zrig v Canada (Minister of Citizenship and
Immigration), 2003 FCA 178, the Court of Appeal also held that a person may
be excluded even when they have completed their sentence, although completion
of a sentence remains a relevant factor in the exclusion analysis. Just as the
constituent element of the offence need not be established, so too can
constraints or exculpatory factors such as duress or self-defence be plead in
mitigation, although they may fall short of the standard required in criminal
law or otherwise be inapplicable in a criminal trial.
[23]
Much
of the argument before this Court focused on the purpose of Article 1 F(b) of
the Convention. It was contended that the purpose of Article 1 F(b) was
to prevent fugitives from justice sheltering under the Convention. In
consequence, exclusion under 1 F(b) is unreasonable where, in circumstances
such as these, the applicant has served his sentence. In Arevalo Pineda v
Canada (Citizenship and Immigration), 2010 FC 454 at paras 24 and 25, Justice
Johanne Gauthier reviewed the object and purpose of Article 1 F(b) of the Convention
and concluded:
Finally, it is worth citing the following passage of Justice
Décary's reasons in Zrig at paragraph 129:
[...] It follows that under Article 1F(b) it is possible to
exclude both the perpetrators of serious non-political crimes seeking to use
the Convention to elude local justice and the perpetrators of serious
non-political crimes that a State feels should not be allowed to enter its
territory, whether or not they are fleeing local justice, whether or not they
have been prosecuted for their crimes, whether or not they have been convicted
of those crimes and whether or not they have served the sentences
imposed on them in respect of those crimes. [Emphasis added]
This makes good sense given that charges can be dismissed for a
variety of reasons including procedural issues, rejection of crucial evidence
for technical reasons, or simply because the accused raised a reasonable doubt.
The Convention does not adopt the stringent standard applicable in criminal
proceedings and the RPD may indeed be satisfied that evidence produced by the
Minister, which may not be admissible in a court of law, is sufficient to raise
a serious possibility that the applicant has indeed committed a serious crime.
[24]
Justice
Gauthier’s analysis is compelling. There is no sound reason, either rooted in
the text of Article 1 F(b) or in the jurisprudence which would support an
interpretation confining Article 1 F(b) to a single purpose as argued. Neither
the fact of conviction nor the service of the sentence can be determinative of
the exclusion analysis.
[25]
The
applicant, it is said, has paid his debt to society and hence the conclusion
reached is, in light of the purpose of Article 1 F(b), unreasonable. The error
in the argument before this Court is that it confines Article 1 F(b) to the
singular purpose of ensuring that right of asylum is not used by perpetrators
of serious ordinary crimes in order to escape justice. Article 1 F(b) serves
several objectives, all of which much be kept in mind when assessing the
reasonableness of a decision to exclude a claimant from the refugee
determination process. In Jayasekera, the Court of Appeal adopted Décary
J.A.’s analysis of the purposes of Article 1 F(b) in Zrig, para 28:
The
purpose stated in Chan is neither the only nor, as contended by the
appellant, necessarily the primary purpose sought by the exclusion contained in
Article 1F(b) of the Convention. This is made clear by the subsequent decision
of our Court in Zrig. In this respect, our colleague Décary J.A. wrote,
at paragraphs 118 and 119 of that decision:
Purposes of Article 1F of the Convention in general, and
Article 1F(b) in particular
My
reading of precedent, academic commentary and of course, though it has often
been neglected, the actual wording of Article 1F of the Convention, leads me to
conclude that the purpose of this section is to reconcile various objectives
which I would summarize as follows: ensuring that the perpetrators of
international crimes or acts contrary to certain international standards will
be unable to claim the right of asylum; ensuring that the perpetrators of
ordinary crimes committed for fundamentally political purposes can find refuge
in a foreign country; ensuring that the right of asylum is not used by the
perpetrators of serious ordinary crimes in order to escape the ordinary course
of local justice; and ensuring that the country of refuge can protect its
own people by closing its borders to criminals whom it regards as undesirable
because of the seriousness of the ordinary crimes which it suspects such
criminals of having committed. It is this fourth purpose which is really at
issue in this case.
These purposes are complementary. The first indicates that the
international community did not wish persons responsible for persecution to
profit from a convention designed to protect the victims of their crimes. The
second indicates that the signatories of the Convention accepted the
fundamental rule of international law that the perpetrator of a political
crime, even one of extreme seriousness, is entitled to elude the authorities of
the State in which he committed his crime, the premise being that such a person
would not be tried fairly in that State and would be persecuted. The third
indicates that the signatories did not wish the right of asylum to be
transformed into a guarantee of impunity for ordinary criminals whose real fear
was not being persecuted, but being tried, by the countries they were seeking
to escape. The fourth indicates that while the signatories were prepared to
sacrifice their sovereignty, even their security, in the case of the
perpetrators of political crimes, they wished on the contrary to preserve them
for reasons of security and social peace in the case of the perpetrators of serious
ordinary crimes. This fourth purpose also indicates that the signatories wanted
to ensure that the Convention would be accepted by the people of the country of
refuge, who might be in danger of having to live with especially dangerous
individuals under the cover of a right of asylum. [Emphasis added.]
[26]
The
Court of Appeal emphasized that these purposes are complementary and of equal
rank. Hence, the fact that the applicant has, in this case, served his
sentence and was “only” an accessory does not negate the fourth principle, by
which Canada, a signatory to the Convention, through section 98 of the IRPA,
retained the right to refuse entry to those who are undesirable because of
their prior criminal conduct.
[27]
In
sum, Article 1 F(b) of the Convention only requires the existence of
“serious reasons for considering” that the applicant has committed a serious
non-political crime. This standard has been found to be equivalent to “reasonable
grounds”, or the existence of credible evidence which would objectively support
a reasonable basis for believing that the person has committed the crime: Rihan,
above, at para 76. As noted, the Minister is not required to establish the constituent
elements of the crime on a balance of probabilities.
[28]
In
my view, the guilty plea and conviction in Israel surpass the evidentiary
standard required to establish that these were serious reasons for considering
that the applicant committed a serious non-political crime: Sing v Canada (Minister of
Citizenship and Immigration), 2005 FCA 125, at para 25. This is true
regardless of whether the offence was manslaughter, accessory to
manslaughter or accessory to murder, as any one of these offences
are serious enough to trigger the application of section 98 of the IRPA
and Article 1 F(b) of the Convention.
The RPD did not ignore evidence
[29]
The
above analysis is the legal framework in which the RPD’s decision that there
were insufficient mitigating circumstances must be reviewed by this Court. I
am not persuaded that the RPD failed to consider the mitigating factors in this
case. While the RPD did not specifically address all the mitigating factors in
its reasons, the reasons indicate that “the circumstances that led to the act
and the factors” were considered but concluded that these mitigating factors
did not point away from an exclusion finding. The transcript also indicates
that the RPD member fully canvassed all of the mitigating factors at the
hearing and explored and understood the relevant circumstances surrounding the
offence. When the reasons are read in conjunction with the transcript of the
hearing, I am satisfied that the RPD member understood correctly all of the
facts relating to the commission of the offence and fully considered the
mitigating factors, as required by the jurisprudence.
[30]
Given
the very serious nature of the crime, the RPD’s finding was reasonable. The RPD
member was free to give the evidence regarding the applicant’s motive for
pleading guilty the weight that he did in determining whether the applicant
should be excluded. Moreover, it is important to be precise about the factors
and circumstances that were said to mitigate the seriousness of the crime. The
five factors advanced before this Court as being compelling, such that the RPD’s
decision was unreasonable, do not withstand scrutiny. To repeat, the
mitigating circumstances were:
·
The
applicant arrived at the scene of the crime after the killings occurred and was
not directly involved in the killings;
·
He pled
guilty only to obtain police protection;
·
He was
convicted of accessory to manslaughter and not manslaughter;
·
He served
his sentence in Israel; and
·
He was
released early for good behaviour.
[31]
The
first (that he was not directly involved in the killing) and third (convicted
of being an accessory) are in essence the same consideration. The first is the
factual foundation of the third. The second, that he pled guilty only to
obtain protection goes to motive, and was free to be considered and weighed by
the RPD member. The member was free to give it little weight, as there was
evidence from the applicant that he pled guilty as part of a plea arrangement.
Finally, the fourth factor, that he had served his sentence is, consistent with
the Court of Appeal decision in Zrig above, a relevant but not a
determinative factor. Viewed in this light, there were scant mitigating
considerations that weighed in the applicant’s favour, and the RPD’s decision
falls well-within the parameters of reasonableness.
No error in finding that the applicant was convicted
of manslaughter rather than accessory to manslaughter
[32]
The
applicant contends that the RPD erred in concluding that the applicant was
convicted of manslaughter.
[33]
The
applicant’s testimony before the RPD regarding his conviction was inconsistent.
At first, he testified that he was convicted of manslaughter:
MEMBER: Okay, Mr. Saide, is it true that
you were convicted in Israel of manslaughter pursuant to
their Criminal Code?
CLAIMANT (Mr. K. Saide): Yes.
[34]
Later,
the applicant testified that he was offered a plea arrangement by the Israeli
prosecutors. If he pled guilty to accessory to manslaughter, he would
have his sentence reduced:
MEMBER: All right. So, they presented –
the police or the prosecutor present – evidence to the court that you were involved
in the killing?
CLAIMANT (MR. K. SAIDE): The lawyer and
the general prosecutor, police – the police’s role finished at that stage.
MEMBER: So, it is – it’s yes? They
presented evidence that you were involved?
CLAIMANT (MR. K. SAIDE): They agreed
among each other that I would be convicted in abetting or being an accessory to
that manslaughter and, consequently, have a commuted sentence. There was a lot
of accentuating – or factors – there were a lot of factors involved – … --
affecting that. One of the factor – is that I remain alive. The lawyer, because
of that, advised me to accept that deal. And second, that by the lapse of time,
people would forget and we would be away from the matter.
MEMBER: Now, I –
CLAIMANT (Mr. K. SAIDE): And at the same
time, it would be an attempt for reconciliation.
[35]
When
questioned by his own counsel as to the exact charge to which he pled the
applicant testified:
COUNSEL FOR THE PERSON CONCERNED:
---seems to indicate that it was accessory to murder. So, was it actually
manslaughter or was it accessory to manslaughter or was it accessory to murder?
CLAIMANT: Abetting or accessory. Aiding
in manslaughter.
COUNSEL FOR THE PERSON CONCERNED: Okay.
Alright.
MEMBER: So, aiding to manslaughter?
CLAIMANT: Yes.
MEMBER: Okay.
CLAIMANT: Aiding in manslaughter.
MEMBER: I can only go with what the
documents say and nothing more, unfortunately.
COUNSEL FOR THE PERSON CONCERNED: The –
MEMBER: It does say you have been
convicted of felony accessory to murder. But the Minister’s document on page –
on the second page of the Minister’s letter, it shows that you were convicted
of manslaughter in Ramla.
[36]
The
parties reviewed the various exhibits, and then continued:
COUNSEL FOR THE PERSON CONCERNED: Okay.
But page – if you look at page 1 of M-2 –
MEMBER: Yeah.
COUNSEL FOR THE PERSON CONCERNED: -- this
is where that comes from.
MEMBER: Okay.
COUNSEL FOR THE PERSON CONCERNED: That’s
the – the embassy contacted –
MEMBER: Yes.
COUNSEL FOR THE PERSON CONCERNED: --
INTERPOL Israel. So, the actual document,
court document, says accessory.
MEMBER: Yeah, I see it. And you know, I
can only go – there’s reference to the material, but I can only – the documents
from the State of Israel is more concrete.
Now, sir, you did say that you were
convicted of aiding to manslaughter. The – in M-2, page 3, it’s from the State
of Israel. It says you have been convicted of felony accessory to murder. Now,
then, I have to go to the Israeli Penal Code to determine the sentence
or what that includes. All right. But I’m going to let your lawyer continue
with his questions.
[37]
In
the reasons for decision, the RPD noted that there was conflicting evidence
regarding the nature of the offence on the record. This arises, in part, from
lack of precision in the applicant’s testimony and the documentary evidence
indicating the offence with which he was charged and to the offence to which he
pled guilty. The Israeli Release Committee, the Israeli equivalent of the
National Parole Board in Canada, referred to the conviction as accessory
to murder. There was also an email from the Canadian Embassy in Tel Aviv
stating “I received [sic] following information from Interpol Israel: Subject has
been convicted of manslaughter (and not ‘assistant [sic] to manslaughter’)”. There
was thus conflicting evidence before the RPD, in both the applicant’s testimony
and the documentary evidence.
[38]
The
applicant’s testimony was not the determinative factor in the RPD’s analysis of
the precise offence, however. The RPD member placed considerable emphasis on
the documentary evidence. The RPD considered and weighed all of this evidence
and found that the applicant had been convicted of manslaughter, and not
accessory to murder. Given the inconsistent evidence on the record and
the evidence of Interpol Israel, it was reasonably open to the RPD to find
that the applicant was convicted of manslaughter.
[39]
In
any event, the distinction between the various offences is immaterial, both
legally and factually. Whether the applicant was convicted of accessory to manslaughter
or manslaughter, he could still be excluded under section 98 and Article 1 F
and prima facie inadmissible under section 36(1)(b) of the IRPA
for having been convicted of an offence
outside Canada which, 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.
Whether the applicant was convicted of manslaughter
(Interpol Israel and his testimony); accessory to murder
(Israeli Release Committee); or accessory to manslaughter (Immigration
Division and his testimony) is therefore not determinative of whether the RPD’s
exercise of discretion was reasonable.
[40]
As
noted above, by virtue of section 463 of the Criminal Code, the offence of
accessory tracks the substantive offence. The RPD need only find “reasonable
grounds” to believe the applicant committed a serious crime. Regardless of the
precise characterization of the offence, the RPD member understood all of the
facts relating to the commission of the offence and the applicant’s role in its
commission. The RPD noted that two people were killed, and that the applicant
pled guilty and was sentenced to six years imprisonment. On these facts it was
reasonably open to the RPD to conclude that there were serious reasons for
considering that the applicant committed a serious non-political crime, which
is the controlling legal test.
The RPD is not estopped from
finding that the applicant was convicted of manslaughter
[41]
As
noted, the applicant was the subject of an inadmissibility hearing before the
Immigration Division. The Immigration Division found the applicant, as an accessory
to manslaughter, to be inadmissible to Canada pursuant to
section 36(1) of IRPA.
[42]
The
applicant contends that res judicata or issue estoppel applies in
the present case. The applicant argues that the RPD was estopped from finding
that the applicant was convicted of manslaughter because the Immigration
Division had already found that that the applicant was convicted of accessory
to manslaughter. In other words, the applicant contends that the RPD cannot
revisit the Immigration Division’s finding that the applicant was an accessory.
I note that at one point in its decision the Immigration Division held that the
applicant was convicted of ‘accessory to murder’, but the applicant suggests
the word ‘murder’ is a typographical error, as the remainder of the decision,
including the equivalency analysis, addresses manslaughter, and not murder.
[43]
The
Court of Appeal held that statutory decision makers must exercise their
independent discretion and judgment, even on closely related issues and come to
their own conclusions: Canada (Minister of
Citizenship and Immigration) v Zazai, 2004 FCA 89. The fact that the sequence of
determinations is reversed in this case (the Immigration Division decision
preceded the RPD decision) is not a valid basis for distinguishing Zazai,
or departing from the guidance of the Court of Appeal. Finally, admissibility
and exclusion cases involve different legal tests and require separate legal
analysis. In that sense, although their respective findings constitute
evidence which can be considered, the RPD and the Immigration Division cannot
bind one another. In any event, the point is of no consequence as either
offence falls within the scope of the exclusion.
The reasons are sufficient
[44]
The
applicant contends that the reasons provided by the RPD are, in light of the
issues under its consideration, insufficient to meet the required legal
standard. I do not agree.
[45]
The
Federal Court of Appeal framed the criteria for assessing the sufficiency of
reasons in Via Rail Canada Inc v Lemonde, [2001] 2 FC 25, at paras 21
and 22. The assessment of the adequacy of reasons depends on the particular
circumstances of each case. Decision makers cannot simply recite the
submissions and evidence of the parties and then state a conclusion. Decision
makers must state their findings of fact, the evidence on which those findings
were based, address the major points at issue, and describe the reasoning
process the decision maker followed.
[46]
Reasons
serve several purposes: to let the parties know the issues have been
considered, to allow the parties to effect any right of appeal or judicial
review; and to inform the losing party that they have lost. The Supreme Court
of Canada has emphasized that the requirement of reasons is not a free standing
right, rather the adequacy of reason is to be assessed in light of their
function and purpose: R v Sheppard, [2002] 1 S.C.R. 869 at paras 18-19 and
24.
[47]
Assessing
the reasons in light of these principles, as a matter of law, I find that the
reasons meet the requisite standard. They inform the applicant of the reasons
the RPD came to the conclusion that it did, and the applicant’s ability to seek
and fully argue judicial review was not been prejudiced. The RPD’s reasons are
detailed, make clear findings of fact, address the major points at issue, and
describe the RPD member’s reasoning process. While the reasons do not discuss
the mitigating and aggravating factors in detail, and more would have been
desirable, the RPD is not required to discuss each mitigating factor in detail
in order for the reasons to serve the purpose and function for which they are
required. I also reiterate that what are advanced as a number of mitigating
factors, are, on closer analysis, duplicative and hence need not be
re-addressed.
Conclusion
[48]
The
applicant has failed to establish that the RPD made a reviewable error. It was
reasonable for the RPD to conclude that the applicant committed a serious
non-political crime. I can find no error in the RPD’s conclusion that the
applicant was convicted of manslaughter, and I am satisfied that the RPD
member understood and considered all of the relevant mitigating factors.
[49]
The
application for judicial review is dismissed.
[50]
The
parties requested an opportunity to consider whether a certified question
arose upon receipt of a decision in this case. I will allow the applicant five
days from the date of this decision to consider and propose a certified
question. The respondent shall then have five days within which to
respond. Neither submission should exceed five pages in length.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review be and is hereby
dismissed. The applicant
is allowed five days from the date of this decision to consider and propose a
certified question. The respondent shall then have five days within which
to respond. Neither submission should exceed five pages in length.
"Donald
J. Rennie"
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