Date:
20130613
Docket:
IMM-9989-12
Citation:
2013 FC 649
Ottawa, Ontario,
June 13, 2013
PRESENT: The
Honourable Mr. Justice Phelan
BETWEEN:
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ROMAN ALEXANDER CHERNIKOV
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
This
judicial review concerns a decision [Decision] by a member of the Immigration
and Refugee Board [Member] that the Applicant is not entitled to pursue his
refugee protection claim because he committed a serious non-political crime
outside Canada as outlined in Article 1F(b) of the Convention Relating to
the Status of Refugees, 1951, CTS 1969/6, 189 UNTS 150.
1.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 of the country of refuge prior to his admission to that country as a
refugee.
II. BACKGROUND
[2]
The
Applicant was born in the Republic of Kyrgyzstan, when the USSR still existed. He claims that he is neither a citizen of Russia nor Kyrgyzstan. That issue is not relevant to this judicial review.
[3]
The
Applicant ultimately arrived in the United States in 2000 and lived there
without status until 2006 when he came to Canada. He made his refugee claim in
2009.
[4]
While
in the United States, the Applicant was convicted of drunk driving causing the
victim bodily harm in the nature of injuries to neck, back, wrist and a
punctured lung. He was convicted on the charge of drunk driving causing bodily
harm. He did not contest the charge and was sentenced to one year incarceration
and 36 months probation.
[5]
The
Applicant’s probation included an alcohol rehabilitation program at a
residential facility. He left the facility without permission so as to avoid
the program. A warrant for his arrest was issued; he was arrested, found in
violation of his probation and sentenced to a further two years incarceration
on August 30, 2005.
[6]
The
Applicant was then released in 2006 (a year earlier than his full sentence) on
condition that he report regularly to his parole officer. He ultimately left
for Canada in violation of his probation and another arrest warrant is believed
to be outstanding.
[7]
The
Member outlined the facts of the drunk driving, the conviction, the sentences
and the violations of probation/parole terms. The Member found that drinking
and driving are serious and that in this case the drinking causing bodily harm
increased the seriousness of the matter. The Member goes on to state that the
level of seriousness is reflected in the sentence imposed for a first-time
offence. The Member was also disturbed that the Applicant did not comply with
conditions of rehabilitation and completion of parole.
The Applicant
takes exception in this judicial review to the above comments by the Member.
[8]
The
Member found that the Canadian equivalent of the California offences is s
255(2.1) of the Criminal Code, RSC 1985, c C-46 [Criminal Code],
dealing with driving with blood alcohol over the legal limit causing bodily
harm. The punishment for that indictable offence is imprisonment for not more
than 10 years.
[9]
The
Applicant objected to the Member’s reference to his failure to complete neither
the rehabilitation program, nor parole, and to there being an outstanding
warrant against him.
[10]
Finally,
in concluding that the Applicant was excluded from the Immigration and
Refugee Protection Act, RSC 2001, c 27 [IRPA], s 96 and 97, the
Member observed that parole is considered part of the sentence and that the
Federal Court has found that sentences are not served in instances where an
individual has fled prior to completion of their sentence.
III. ANALYSIS
A. Serious Issue
[11]
The
Applicant had defined the issues as erring in conclusion on Article 1F(b);
failing to providing adequate reasons, and failure to follow Jayasekara v Canada (Minister of Citizenship and Immigration), 2008 FCA 404, [2009] 4 FCR 164 [Jayasekara].
The issue of an independent ground of inadequate reasons was not seriously
advanced in view of the case law.
The real issue
is whether the decision is reasonable as a proper application of Jayasekara.
[12]
While
the issue of whether Jayasekara was applied is a legal issue based on
developed precedent and therefore subject to the correctness standard of
review, the application of the legal test is a matter of mixed law and fact
reviewable on a standard of reasonableness (Canada (Minister of Citizenship
and Immigration) v Pulido Diaz, 2011 FC 738, 391 FTR 288).
B. Jayasekara Test
[13]
The
Applicant contends that the Member did not follow the Jayasekara test.
This argument is grounded largely on the basis that Jayasekara is not
referred to in the Decision despite being argued before the Member.
[14]
The
relevant factors are set forth in Jayasekara at paragraphs 55 and 56:.
55 In determining whether the appellant had been
convicted of a serious crime, the Board looked at:
a) the gravity of the crimes (trafficking in opium
and criminal possession of marijuana) under New York legislation which, even
for a first offender, resulted in a jail term as well as a five year probation
period;
b) the sentence imposed by the New York court;
c) the facts underlying the conviction, namely the
nature of the substance trafficked and possessed, a traffic of opium in three
parts, the quantity of drugs possessed and trafficked;
d) the finding of this Court in Chan [Chan
v Canada (Minister of Citizenship and Immigration (2000), 190 DLR (4th)
128, 10 Imm LR (3d) 167] that a crime is a serious non political crime if a
maximum sentence of ten years or more could have been imposed if the crime had
been committed in Canada;
e) the objective gravity of a crime of trafficking
in opium in Canada which carries a possible penalty of life imprisonment; and
f) the fact that the appellant violated his
probation order by failing to report three times to his probation officer and
eventually absconded.
56 I believe that the judge committed no error
when he concluded that it was reasonable for the Board to conclude on these
facts that the appellant’s conviction in the United States gave it a serious
reason to believe that he had committed a serious non political crime outside
the country.
[15]
The
Member, in the decision, considered the following factors:
•
the
gravity of the crime under California legislation, which, even for a first
offender, resulted in a one year jail term as well as 36 months probation;
•
the
sentence imposed by the California court;
•
the
facts underlying the conviction, including the charge of driving under the
influence causing bodily harm and the Applicant’s “no contest” guilty plea;
•
the
finding that a crime is a serious non-political crime if a maximum sentence of
10 years or more could have been imposed were the crime committed in Canada;
•
the
objective gravity of a crime of blood alcohol over the legal limit causing
bodily harm in Canada, which carries a possible penalty of imprisonment not
exceeding ten years, putting it in the realm of “serious criminality” as
defined by the IRPA;
•
the
Applicant violated his parole by not complying with the rehabilitation program
provided, resulting in further jail time;
•
the
fact that upon release, the Applicant again violated parole by attempting to
enter Russia and then entering Canada, resulting in an outstanding arrest
warrant in the United States;
•
the
fact that parole is part of the sentence and a sentence is not served where an
individual has fled prior to the completion of the parole period; and
•
one
of the purposes of Article 1F(b) is to protect the integrity of the refugee
determination system by screening out serious ordinary criminals because of
criminal activity in other countries.
[16]
In
my view, the Member touched on all the critical factors:
a) gravity
of the crime;
b) sentence
imposed;
c) facts
underlying the conviction;
d) (the Chan
matter is not relevant);
e) the
objective gravity of the crime; and
f) the
violation of probation.
[17]
While
it may be helpful and a “best practice” to refer to the leading authority
followed by the Member, what is important and what the Applicant is entitled to
is the analysis of those factors set forth in Jayasekara. In that regard
the Member fulfilled that obligation even without reference to the leading
authority.
C. Facts Underlying
[18]
The
Applicant contends that the Member misdescribed the facts underlying the
offence by stating that the Applicant fell asleep while driving rather than
being asleep due to excess alcohol, he unconsciously drove the vehicle. If
there is a material difference between falling asleep due to drunkenness and driving
or falling asleep first and then driving while unconscious, I fail to see it.
In any event, the finding, as quoted below, is sufficient to support the
Member’s conclusion.
You testified today you were involved in an accident
on February 17, 2004. You were driving after drinking and you fell asleep. In
your words “you were unconscious at the wheel”, and as a result collided with
another vehicle in which two people were injured.
D. Seriousness of the
Offence
[19]
The
Applicant says that the Member took into account irrelevant matters in
considering the seriousness of the offence. The first of these is a purported
personal view that drinking and driving are serious; the second is that the
level of seriousness is reflected in the significant sentence imposed for a
first-time offence. The precise words are at paragraph 24 of the Decision:
I find, by nature, that drinking and driving are
serious, but in this case, drinking, driving and causing bodily injury to
others has increased the seriousness of the situation and this must be
considered. This level of seriousness is reflected in the significant sentence
imposed by the U.S. authorities for a first-time offence.
[20]
In
my view, the determinative statement is that related to drinking, driving and
causing bodily injury to others increases the seriousness of the situation.
That is an accurate statement of the relevant provision of the Criminal Code.
The “personal comment” is almost a truism and the US sentence comment is an
immaterial comment. One must read the Member’s comment as a whole and against
the background of the case.
E. Post-Conviction
Conduct
[21]
The
Applicant takes exception to the Member considering the post-conviction conduct
of probation and parole violations. The Applicant relies on the comments in Febles
v Canada (Minister of Citizenship and Immigration), 2012 FCA 324, 223 ACWS
(3d) 1012 [Febles], at paragraph 52, that seriousness is assessed at the
time of commission of the offence:
52 In my view, the ordinary meaning of the text
of Article 1F (b) is that whether a crime is serious for exclusion purposes is
to be determined on the basis of the facts listed by this Court in Jayasekara.
The seriousness of a crime is to be assessed as of the time of its commission;
its seriousness does not change over time, depending on whether the claimant is
subsequently rehabilitated and ceases to pose a danger to the public.
[22]
The
Applicant’s argument cannot succeed. The Member’s comments about
post-conviction conduct follow her paragraph 28 wherein she concludes on the
issue of seriousness of the California crime by reference to the equivalent
offence in the Canadian Criminal Code. The Applicant has taken the
comments out of context.
[23]
The
post-conviction comments are made in the context of the overall purpose of
Article 1F(b).
32. One of the purposes of Article 1F(b) is to
protect the integrity of the refugee determination system by screening out
serious, ordinary criminals because of their criminal activity in other
countries (Decision at para 32).
[24]
This
conclusion is consistent with the multi-purposes of Article 1F referred to at
paragraph 28 of Jayasekara and cited with approval in Zrig v
Canada (Minister of Citizenship and Immigration) 2003 FCA 178, [2003] 3 FC
761, and more recently, in Febles.
[25]
In
Jayasekara, one of the relevant factors considered was that appellant’s
violation of his probation order. Jayasekara confirms that
post-conviction conduct may be relevant to whether a person has been convicted
of a serious crime in the context of the purpose of Article 1F.
[26]
I
can find no support for the Applicant’s argument that Febles and Feimi
v Canada (Minister of Citizenship and Immigration), 2012 FCA 325, 353 DLR
(4th) 536 [Feimi], were designed to limit or alter Jayasekara. In
fact, Febles specifically adopts Jayasekara and Feimi
relies on Febles. Had the Federal Court of Appeal wished to distance
itself from Jayasekara, the Court would have done so in clear language.
IV. CONCLUSION
[27]
In
determining the reasonableness of the Member’s decision, it must be looked at
as a whole. For those who find one sentence or comment less appealing, it is
still necessary to look at the whole of the decision. Having done so, I see no
reason or basis for this Court’s intervention.
[28]
The
parties will be allowed some time to consider whether a question should be
certified. Each shall have seven (7) days – the Applicant from the date of the
Reasons; the Respondent from receipt of the Applicant’s submissions.
[29]
Therefore,
this judicial review will be dismissed.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
dismissed.
“Michael L. Phelan”
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