Date: 20150421
Docket: IMM-5137-13
Citation:
2015 FC 511
Toronto, Ontario, April 21, 2015
PRESENT: The Honourable Mr. Justice Campbell
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BETWEEN:
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GYULA KOTAI
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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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ORDER AND REASONS
[1]
The present Application concerns an
inadmissibility determination, dated July 22, 2013, made by a Member of the Immigration
Division of the Immigration and Refugee Board (Member) pursuant to s. 36(1)(b)
of the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA),
in which the Applicant was found to be inadmissible for the reason that he was
convicted of an offence outside Canada that, 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.
[2]
The uncontested fact scenario leading to the
decision under review is stated in the Applicant’s Memorandum of Fact and Law
as follows:
The Applicant, Mr. Gyula Kotai, was born
on December 9, 1985, in Miskolc, Hungary. He left Hungary on November
2, 2012 and came to Canada after a short layover in Warsaw, Poland.
Mr. Kotai was questioned at the port-of-entry and disclosed to the
officer that he believed he had been convicted of assault with light
bodily harm in 2007. His belief was based on a letter he received.
While at the port-of-entry, the Applicant explained to the Officer
that he had not been to court and that during the incident in question
he was acting in self defense.
The incident leading to the “conviction” occurred
in 2007. The Applicant was
walking home from work when three skinheads confronted him. The Applicant
identified them by the black uniforms and boots the individuals were
wearing. The skinheads started verbally abusing Mr. Kotai, who did
nothing to retaliate. One of the skinheads punched the Applicant in
the mouth while a second skinhead pulled out a knife. In an attempt to
defend himself, Mr. Kotai and the second skinhead ended up wrestling
on the ground. The Applicant was able to acquire the knife and
stabbed his assailant in the leg, allowing Mr. Kotai an opportunity
to run home. A couple days later, police officers attended the home
of the Applicant and took him to the station for questioning. At the police
station, Mr. Kotai explained to the officer the details of the fight
and that in stabbing the skinhead, he was acting in his self
defense. The Applicant was then told that he would be contacted
regarding a hearing date and was allowed to go home.
Some time later, the Applicant received
a letter in the mail that outlined his testimony, the testimony of
the skinhead, and the doctor's report of the injuries sustained by
the skinhead. The Applicant also believes that the letter notified
him that he had been convicted of assault with light bodily harm
and sentenced to two years probation. On July 22, 2013,
Mr. Kotai attended an admissibility hearing. At the conclusion of the
hearing, he was issued a removal order.
[3]
In the decision under review, the Officer made
the following preliminary statement with respect to the available evidence upon
which to reach a decision:
Pursuant to Section 173 of the Immigration
and Refugee Protection Act the Immigration Division is not bound by any
legal or technical rules of evidence and may receive and base a
decision on evidence that it considers credible and trustworthy.
(Certified Tribunal Record, p. 65)
[4]
The Officer then proceeded to make the following
determination:
The primary evidence today relied on to establish
that Mr. Kotai did receive a conviction in Hungary would be his statements made
at the port of entry officials on the 23rd of November 2012, as well as his
oral testimony today. Outside of these statements there is no objective,
independent and credible evidence establishing that Mr. Kotai was indeed
convicted and on what date. There is no certificate of conviction in the Minister's
package; there is no record of the judgment of the sentencing body or court in
the Minister's package. There are no police reports providing independent
information about the occurrence that led to the conviction and as well the
applicable foreign statute under which Mr. Kotai would have been convicted is not
provided. And in that sense I'm referring to a country-issued document showing
that applicable foreign statute.
However the Minister, through his own research,
and I say his, because the Minister is a male, zeroed in on the likely
statute that was used to convict Mr. Kotai, which would be the Hungarian
Criminal Code and has zeroed in on Section 170(1) of that Code as the
applicable provision.
There are some issues, for sure. The Minister
encountered Mr. Kotai on the 21st of November 2012 and would have had eight
months between then and now to collect the kind of information that is required
to make a persuasive argument about Mr. Kotai's inadmissibility. However, what
I find is that there is next to nothing in the disclosure package confirming
the existence of a conviction for Mr. Kotai and there is also no information
about efforts made by the Minister in that regard.
The question therefore is, can the Tribunal
rely solely on the statements made by Mr. Kotai at the port of entry and today?
In spite of all that I have said my answer to
this will be in the affirmative.
[…]
Given what is before the Division today, I
would find that the evidence from Mr. Kotai himself that he received a
conviction for assault causing light bodily harm is credible and compelling
information and that the Division can rely upon that information, in spite of
the inability of the Minister to provide other corroboratory pieces of evidence.
A point which should be made clear is that the
threshold to establish the allegation relating to serious criminality outside Canada is reasonable grounds to believe, which is quite a low standard. It is a bona fide
belief in a serious possibility based on credible evidence.
The panel found that Mr. Kotai’s evidence to be
credible and based on what he stated to the port of entry officials and what he
has stated today, this court can hold that he did receive a conviction.
[Emphasis added] (Decision, Certified Tribunal
Record, pp. 66 – 67)
[5]
With respect to whether an application of s. 173
of the IRPA is reasonable, on judicial review each case must be determined
on its own merits. The principle that speculation cannot be used as evidence to
establish a fact cannot be over emphasized in the present case. Regardless of
the latitude the Member has to make findings of fact, speculation is not capable
of being “credible evidence” in determining a “bona fide belief in a serious possibility based on credible
evidence,” which was the evidentiary test applied by the Member.
[6]
The only fact established by the Applicant’s
evidence in the present case is that he believed he had been convicted
of a crime; his statement of his belief is sheer speculation and has no
evidentiary value going to prove that he was, in fact, convicted of a crime.
Neither the Member, Counsel for the Minister, or the Applicant had any evidence
upon which it could be established that the Applicant was “convicted”; the word has a meaning that depends on the
context in which it is used. To make a comparison to a conviction in Canada, surely there must be some verifiable evidence advanced that a foreign state’s action can be
considered to be a “conviction” as that word is
understood in Canada. In the present case, as carefully set out by the Member,
there was none. The Applicant was interviewed by the police; was told that he
would receive a notice to appear in Court; did not receive a notice; did not
appear in Court; but did receive documentation in the mail that he believed
to be evidence that he was convicted of a crime. The evidence goes to establish
that the Applicant did not know the meaning of the documents he received, but,
nevertheless, he felt able to offer a speculation.
[7]
Having received the Applicant’s speculation, the
Member then engaged in a further speculation as to the law in Hungary under which the “conviction” was entered. Making a finding
with respect to foreign law on the basis that a certain statute is “likely” to be relevant certainly constitutes
speculation. As a result, I find that there was no basis on which the Member
could proceed to make a finding that the Applicant was “convicted”
of an offence that could be compared to a “conviction”
under Canadian law.
[8]
In addition, for the following reasons, I find
that the comparison of the alleged conviction in Hungary to the law of assault
causing bodily harm in Canada was made in error of law because the Member applied
an outdated self-defence provision of the Canadian Criminal Code (the Code).
[9]
The Member made the following findings on the
issue of self-defence:
To avail himself of the defence, Mr. Kotai
would have to repel the force in a manner not intended to cause death or
grievous bodily harm and without the application of more force than was
necessary. My assessment is that once Mr. Kotai retrieved the knife, which he
feared would be used to attack him, he could have run away with the knife and
thereby made it unavailable to the victim, whom he feared. However, he stabbed
the victim, threw the knife on the ground and then run [sic] away. He did not
even take the knife with him to ensure that he would not be followed with the
knife.
I find that Mr. Kotai may have used more
force than was necessary or required and the extent of the aggression to defend
himself. Let's not forget that this victim only
insulted Mr. Kotai. And then he pulled out a knife. So Mr. Kotai could have
left the situation or retreated or disengaged from the conflict.
All in all this Division or this panel is
hesitant that he would be absolved of liability for his conduct under Sections
34 to 37 of the Criminal Code of Canada. Accordingly the panel's assessment of
equivalency still stands.
[Emphasis Added]
(Decision, Certified Tribunal Record, pp.
72-73)
[10]
Counsel for the Applicant argues that this
analysis is problematic because in finding that the Applicant “may have used more force than was necessary or required,”
the Member appears to have relied on the previous incarnation of s. 34(1) of
the Code, which read as follows:
34. (1) Every one who is unlawfully assaulted
without having provoked the assault is justified in repelling force by force if
the force he uses is not intended to cause death or grievous bodily harm and is
no more than is necessary to enable him to defend himself.
[11]
However, on March 11, 2013, the Citizen’s
Arrest and Self Defense Act, SC 2012, c 9, amended the self-defence
provisions of the Code, and, as a result, s. 34 now reads as follows:
34. (1) A person is not guilty of an offence if
(a) they believe on reasonable grounds
that force is being used against them or another person or that a threat of
force is being made against them or another person;
(b) the act that constitutes the offence
is committed for the purpose of defending or protecting themselves or the other
person from that use or threat of force; and
(c) the act committed is reasonable in
the circumstances.
(2) In determining whether the act committed is
reasonable in the circumstances, the court shall consider the relevant
circumstances of the person, the other parties and the act, including, but not
limited to, the following factors:
(a) the nature of the force or threat;
(b) the extent to which the use of force
was imminent and whether there were other means available to respond to the
potential use of force;
(c) the person’s role in the incident;
(d) whether any party to the incident
used or threatened to use a weapon;
(e) the size, age, gender and physical
capabilities of the parties to the incident;
(f) the nature, duration and history of
any relationship between the parties to the incident, including any prior use
or threat of force and the nature of that force or threat;
(f. 1) any
history of interaction or communication between the parties to the incident;
(g) the nature and proportionality of
the person’s response to the use or threat of force; and
(h) whether the act committed was in
response to a use or threat of force that the person knew was lawful.
[12]
I agree with Counsel for the Applicant’s
argument that the error in law caused the Member to completely disregard the
factors cited in s. 34(2), which must be balanced in the decision making
process in order to determine whether the alleged act was committed in
self-defence.
[13]
For the reasons provided, I find that the
decision under review is made in reviewable error.
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