Date: 20080417
Docket: IMM-3883-07
Citation: 2008 FC 495
Ottawa, Ontario, April 17,
2008
PRESENT: The Honourable Madam Justice Hansen
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
and
JOSE FRANCISCO CARDOZA
QUINTEROS
Respondent
REASONS FOR ORDER AND ORDER
[1] At the
conclusion of a September 13, 2007 detention review hearing, a Member of the Immigration
and Refugee Board, Immigration Division, ordered the Respondent’s release on
terms and conditions. The Minister seeks to have this decision set aside.
[2] When assessing whether an individual is a danger to the
public in the context of a detention review hearing, subsection 246(f)(ii)
of the Immigration and Refugee Protection Regulations, SOR/2002-227
(Regulations) requires a consideration of whether the individual has pending
charges or a conviction for an offence outside of Canada that “if committed in
Canada, would constitute an offence under an Act of Parliament for […] an
offence involving violence or weapons […]”. As the determinative issue in this
judicial review concerns the Member’s finding in relation to this provision,
only a brief recital of the facts is necessary.
[3] The Respondent, a citizen of El Salvador, claimed
refugee protection upon his arrival in Canada on September
2, 2007.
[4] At a subsequent September 4, 2007 interview conducted by the
Canada Border Services Agency (CBSA), the Respondent admitted his five year
membership in the El Salvadoran gang, Mara Salvatrucha (MS-13). He gave a
detailed statement about the gang, its violent, criminal activities, and his
own involvement in multiple acts of violence. He also stated that he had been
convicted of armed robbery. As a result, CBSA reported the Respondent as being
inadmissible under paragraph 37(1)(a) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27.
[5] The first detention review hearing resulted in the
Respondent’s continued detention because his identity had not been
established. At his second detention review hearing, the Minister asked for a
continuation of the Respondent’s detention on the basis that he posed a danger
to the public and was unlikely to appear for his inadmissibility hearing. When
asked by the Member to identify the evidence being relied upon in support of
the factual assertions being made in relation to subsection 246(f)(ii),
the Minister’s counsel was not able to point to any specific evidence. In his
response to the Minister’s submissions, duty counsel acting for the Respondent advised
that his client denied being a member of the MS-13, that everything he had
stated at the earlier interview was wrong, and that he had only one conviction
for theft.
[6] In his consideration of the subsection 246(f)(ii)
factor, the Member stated that “[a]s far as I can tell at this point, your only
conviction is for theft, or perhaps robbery, regarding a cell phone. That
doesn’t fit within subsection (f).”
[7] The Applicant submits that the Member erred in law in making
this finding.
[8] As the Member’s finding that robbery does not fit
within subsection (f) raises a general question of law, it is reviewable
against a standard of correctness see: Dunsmuir v. New
Brunswick, 2008 SCC 9 at paragraph 60.
[9] The Respondent argues that there was insufficient evidence
of the circumstances of any purported convictions against the Respondent for
the Tribunal to give much weight to the conviction.
[10] On my reading of the Tribunal record, there was evidence of
two possible convictions. One, duty counsel acknowledged on behalf of the Respondent
that he had a theft conviction. Two, the Respondent’s own admission of a
conviction for armed robbery contained in the transcript of the CBSA interview
that was tendered as an exhibit at the detention review hearing.
[11] “Robbery” is defined in section 343 of the Criminal Code,
R.S.C. 1985, c. C-46. It reads:
|
343. Every one commits robbery who
(a) steals, and for the purpose of extorting whatever is
stolen or to prevent or overcome resistance to the stealing, uses violence or
threats of violence to a person or property;
(b) steals from any person and, at the time he steals or
immediately before or immediately thereafter, wounds, beats, strikes or uses
any personal violence to that person;
(c) assaults any person with intent to steal from him; or
(d) steals from any person while armed with an offensive
weapon or imitation thereof.
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343. Commet un vol qualifié quiconque, selon le cas :
a) vole et, pour extorquer la chose volée
ou empêcher ou maîtriser toute résistance au vol, emploie la violence ou des
menaces de violence contre une personne ou des biens;
b) vole quelqu’un et, au moment où il
vole, ou immédiatement avant ou après, blesse, bat ou frappe cette personne
ou se porte à des actes de violence contre elle;
c) se livre à des voies de fait sur une
personne avec l’intention de la voler;
d) vole une personne alors qu’il est muni
d’une arme offensive ou d’une imitation d’une telle arme.
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[12] In Canada, while the offence of
theft is not an offence “involving violence or weapons”, by definition, robbery
clearly falls within the provisions of subsection 246(f)(ii). Quite
apart from the failure to make a finding as to whether the available evidence
was sufficient to support a finding that the Respondent had a robbery
conviction, the member erred in law in concluding that even if he did have a
robbery conviction, it did not come within the purview of subsection 246(f)(ii).
[13] At the hearing, the
Respondent also argued that since the Minister did not pursue the argument
regarding the conviction at the detention review hearing, the Minister should
not be permitted to raise the matter on judicial review. I reject this
argument. Although at the detention review the Minister’s counsel could not
point to any specific evidence in relation to a conviction, it is evident that
the Member was aware of the evidence concerning the robbery conviction and made
a determination.
[14] For the above reasons,
the judicial review is allowed and the matter will be remitted for a
re-determination by a different Member. Neither party submitted a question for
certification.
ORDER
THIS
COURT ORDERS that:
1. The
application for judicial review is allowed, the September 13, 2007 decision is
set aside, and the matter is remitted for re-determination by a different
Member of the Immigration and Refugee Board,
Immigration Division.
2. No
serious question of general importance is certified.
“Dolores M. Hansen”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-3883-07
STYLE
OF CAUSE: THE
MINISTER OF CITIZENSHIP
AND IMMIGRATION, Applicant
and
JOSE FRANCISCO CARDOZA
QUINTEROS, Respondent
PLACE OF HEARING: VANCOUVER, B.C.
DATE OF HEARING: APRIL 8, 2008
REASONS FOR ORDER
AND ORDER: HANSEN, J.
DATED: APRIL 17, 2008
APPEARANCES:
CAROLINE CHRISTIAENS FOR
THE APPLICANT
SHEPHERD MOSS FOR
THE RESPONDENT
SOLICITORS OF RECORD:
JOHN H. SIMS, Q.C. FOR
THE APPLICANT
DEPUTY ATTORNEY GENERAL OF CANADA
SHEPHERD MOSS FOR
THE RESPONDENT
BARRISTER AND
SOLICITOR
VANCOUVER, B.C.
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