Date:
20130724
Docket:
IMM-12071-12
Citation:
2013 FC 810
[UNREVISED
CERTIFIED ENGLISH TRANSLATION]
Montréal, Quebec,
July 24, 2013
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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VICKNEY STANDLEY
PIERRE
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Respondent
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REASONS
FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
According
to Jayasekara v Canada (Minister of Citizenship and Immigration),
2008 FCA 404, [2009] 4 FCJ 164, the purpose of Article 1F(b) of the
United Nations Convention relating to the Status of Refugees [Convention] requires
"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" (at para 28).
[2]
[translation] "The offence of break
and enter is subject to a maximum term of life imprisonment because the crime
violates the sanctity of the home and also presents a danger to life through
the potential for violent confrontation with the occupants (Clayton C. Ruby, Sentencing,
Markham, LexisNexis, 2008, para. 23.429, at p. 930). The possession of
ammunition in violation of an order is subject to a maximum penalty of 10
years" (Lévesque v R, 2009 QCCA 1476, at para. 7).
23.429 Under section 348 of the Criminal Code,
the offence of break and enter into a dwelling house carries a maximum term of
life imprisonment, while the break and enter into other premises involves a
lower maximum penalty of 10 years’ imprisonment or punishment by summary
conviction. This statutory maximum is often interpreted as a reflection of the
extreme seriousness with which Parliament, and hence the courts, will regard
the offence of housebreaking. It is a crime which is seen to violate the
sanctity of the home and to present danger to life through the potential for
violent confrontation with occupants.
(Clayton C. Ruby, Sentencing, supra)
II. Introduction
[3]
The
Court was faced with an application for judicial review of a decision by the
Refugee Protection Division [RPD] of the Immigration and Refugee Board [IRB].
[4]
The
RPD accepted the applicant as a Convention refugee.
[5]
In
February 2009, the applicant was arrested and charged with break and enter in
the United States. This offence of theft was committed in a dwelling house.
[6]
The
RPD decision is set aside because of the analysis error regarding the
seriousness of the crime in question.
III. Facts
[7]
The
applicant was accused of "burglary" in the US, and therefore of
"a second degree felony" without appearing before the US Criminal
Court to which he had been summoned.
[8]
One
month later, the defendant decided to flee the US and arrived in Canada,
seeking political asylum from Haiti.
IV. Analysis
[9]
The
RPD neglected to analyze the most relevant case law in terms of legislation
under Article 1F(b) of the Convention with regard to serious crimes
committed in a foreign jurisdiction.
[10]
The
RPD erred in law by neglecting to grant sufficient weight to the seriousness of
the crime committed according to the evidence on file, the offence having taken
place in a dwelling house.
[11]
In
Jayasekara, supra, the Federal Court of Appeal established
factors to consider with regard to the seriousness of a crime for the purposes
of Article 1F(b) of the Convention:
a. elements
of the crime;
b. mode
of prosecution;
c. penalty
prescribed;
d. facts
and mitigating and aggravating circumstances underlying the conviction.
[12]
It
is the responsibility of the RPD to assess the facts surrounding the commission
of the offence in a detailed manner, in order to understand what might affect
the sentence in question; this will clarify the seriousness of the offence,
which requires a thorough analysis.
[13]
For
society's sake, Parliament is concerned with the perpetrator's intent. This is
reflected in the Supreme Court of Canada decision, R v Hamilton, 2005 SCC
47, [2005] 2 S.C.R. 432 (at pp. 447-448).
[14]
R
v Lewis,
[1979] 2 S.C.R. 821, another Supreme Court of Canada decision, leads us to the
conclusion that if a refugee claimant has committed a non-political crime, evidence
of a motive for this crime does not have a high priority impact.
[15]
Even
though the residents of the home were absent, the crime in question could be
punishable by life in prison, considering the risk to human life through
potentially violent interactions with potential occupants.
[16]
According
to Jayasekara, supra, the purpose of Article 1F(b) of the Convention
requires "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".
[17]
As
the RPD analysis is completely erroneous in law and according to the case law
on evidence of the crime committed and the structure of the evidence on file, a
review is essential.
V. Conclusion
[18]
For
all the above-noted reasons, the applicant's application for judicial review is
allowed.
JUDGMENT
THE
COURT ORDERS that the RPD decision be set aside and refers the
matter back to a differently constituted panel for redetermination by the RPD
of the evidence, analyzing the relevant legislation with regard to exclusions
under Article 1F(b) and the case law that assists in interpreting the
legislation. No question of general importance for certification arises.
"Michel M.J.
Shore"
Certified
true translation
Elizabeth
Tan, Translator
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