Docket: IMM-863-15
Citation:
2015 FC 1015
[REVISED ENGLISH TRANSLATION]
Montréal,
Quebec, August 26, 2015
PRESENT: The Honourable Mr. Justice Locke
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BETWEEN:
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LUIS TRINIDAD
ESPINOSA REYES
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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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JUDGMENT AND REASONS
I.
Nature of the matter
[1]
This is a judicial review of a decision of the
Refugee Protection Division (RPD) of the Immigration and Refugee Board dated
January 16, 2015, in which the RPD held that the applicant was neither a “Convention refugee” nor a “person
in need of protection” within the meaning of sections 96 and 97 of
the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA), on the
ground that the applicant was subject to Article 1F(b) of the United
Nations Convention Relating to the Status of Refugees, signed in Geneva on
July 28, 1951 (the Convention), by virtue of section 98 of the IRPA.
[2]
For the reasons that follow, I am of the view
that the RPD’s decision must be upheld.
II.
Background
[3]
Section 98 of IRPA provides:
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Exclusion — Refugee Convention
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Exclusion par application de la Convention sur les réfugiés
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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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[4]
Article 1F(b) of the Convention states:
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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:
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F. Les dispositions de cette Convention ne seront pas applicables
aux personnes dont on aura des raisons sérieuses de penser :
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. . .
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[…]
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(b) he has committed a serious non-political crime
outside the country of refuge prior to his admission to that country as a
refugee;
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b) qu’elles ont commis un crime
grave de droit commun en dehors du pays d’accueil avant d’y être admises
comme réfugiées ;
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(Emphasis added.)
[5]
The applicant arrived in Canada from Mexico on
August 14, 2012. He made a claim for refugee status the following day.
[6]
Before arriving in Canada, the applicant lived
in the United States for several years and had a number of encounters with the
California justice system. Despite his extensive legal troubles, only one
incident is relevant to this decision. On April 29, 1996, the applicant
and his spouse (Guadalupe Garcia) got into an argument. The argument
degenerated to the point where the applicant punched his spouse several times
in the presence of their minor children.
[7]
The police report describes Ms. Garcia’s
injuries as follows:
Garcia’s upper lip was swollen and
discolored. She had a large bump on the right rear side of her head . . . She
had a scratch on her left cheek. She had scrapes and bruises on her lower back.
[8]
While the applicant was beating his spouse, a
neighbour heard Ms. Garcia screaming and asking that someone call the
police, which the neighbour did. When the police arrived, the applicant escaped
through his bedroom window.
[9]
The applicant was arrested on May 7, 1996,
and charged with “inflicting corporal injury on spouse” (section 273.5(a) of the Penal Code
of California) and “endangering health of a child”
(section 273a(b)). After plea bargaining, the applicant pleaded nolo contendere to the
first charge (meaning that the charge was not contested), and the second charge
was withdrawn. The applicant was then convicted and given a suspended sentence
of eight months’ imprisonment, as well as 36 months’ probation, 104 hours of
therapy to control his violent outbursts and various fines. The applicant ended
up spending 97 days in prison because he was unable to pay the $7,500 bond
for his release before trial.
[10]
Section 273.5(a) of the Penal Code of
California reads as follows:
Any person who willfully inflicts corporal
injury resulting in a traumatic condition upon a victim described in
subdivision (b) is guilty of a felony, and upon conviction thereof shall be
punished by imprisonment in the state prison for two, three, or four years, or
in a county jail for not more than one year, or by a fine of up to six thousand
dollars ($6,000), or by both that fine and imprisonment.
[11]
The RPD held that the equivalent to this offence
in Canadian law was paragraph 267(b) of the Criminal Code, RSC
1985, c C-46, which is uncontested. Paragraph 267(b) reads as
follows:
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Assault with a weapon or causing bodily harm
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Agression armée ou infliction de lésions corporelles
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267. Every one who, in committing an assault,
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267. Est coupable soit d’un acte criminel et passible d’un
emprisonnement maximal de dix ans, soit d’une infraction punissable sur
déclaration de culpabilité par procédure sommaire et passible d’un
emprisonnement maximal de dix-huit mois quiconque, en se livrant à des voies
de fait, selon le cas :
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. . .
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[…]
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(b) causes bodily harm to the complainant,
is guilty of an indictable offence and liable to imprisonment for
a term not exceeding ten years or an offence punishable on summary conviction
and liable to imprisonment for a term not exceeding eighteen months.
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b) inflige des lésions corporelles au
plaignant.
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[12]
In its decision, the RPD concluded that there
was a presumption that the crime committed by the applicant was serious since
the offence, if committed in Canada, would have been punishable by imprisonment
for a maximum term of at least ten years: Canada (Citizenship and Immigration)
v Nwobi, 2014 FC 520 at para 6. The RPD noted that this
presumption could be rebutted upon consideration of the following factors set
out in Jayasekara v Canada (Citizenship and Immigration), 2008 FCA
404 (Jayasekara) at para 38:
- the nature of
the act;
- the actual harm
inflicted;
- the form of
procedure used to prosecute the crime;
- the nature of
the penalty for such a crime; and
- whether most
jurisdictions would consider the act in question as a serious crime.
[13]
Based on its analysis, the RPD concluded that it
was a serious non-political crime and that the applicant was therefore excluded
under section 98 of the IRPA and Article 1F(b) of the Convention.
III.
Analysis
[14]
It is common ground between the parties, and I
agree, that the standard of review applicable to the analysis of the
seriousness of a crime for the purpose of this judicial review is
reasonableness: Jayasekara v Canada (Citizenship and Immigration), 2008
FC 238 at para 10.
[15]
The parties also agree that the Federal Court of
Appeal’s decision in Jayasekara is a good authority for the presumption
of the seriousness of a crime and the factors to be considered in rebutting the
presumption. However, the applicant submits that the RPD did not take all of
these factors into account. The applicant focuses on three errors.
[16]
First, the applicant submits that the RPD did
not recognize that the crime of which he was convicted had two levels of
seriousness (both in Canada and California) and that his conviction fell under
the less serious of the two. In California, there is the possibility of
imprisonment “in the state prison for two, three, or
four years” or “in a county jail for not more than one year, or by a fine of up to
six thousand dollars ($6,000), or by both that fine and imprisonment.” Similarly, prosecution in Canada under paragraph 267(b) of
the Criminal Code may result in up to 10 years in prison or
up to 18 months depending on the proceedings leading up to the conviction.
[17]
The RPD failed to note that the applicant’s file
before the court in California was transferred from the Superior Court to the
Municipal Court and that his prison sentence was served in the county jail. It also
failed to note that the sentence of a maximum term of imprisonment of at least
10 years (which gave rise to the presumption of seriousness) applies only to
the most serious levels of offence defined in section 267 of the Criminal
Code. The applicant submits that the presumption of seriousness should
therefore never have been applied.
[18]
The second error alleged by the applicant is
that the RPD indicated several times in its decision (at paras 4, 23, 31, 32) that
the applicant was convicted of both of the offences with which he was initially
charged, when he was in fact convicted of just one, the second charge having
been withdrawn. The applicant asserts that the RPD misapprehended the facts.
[19]
The third error alleged by the applicant is that
the RPD failed to acknowledge that the sentence of eight months’ imprisonment
imposed by the court in California was suspended. The applicant submits that
this is another example of the RPD’s misapprehension of the facts.
[20]
As for the two levels of the crime of which the
applicant was convicted, I see no error on the part of the RPD. Although one of
the factors relevant to the rebuttal of the presumption of seriousness of a
crime is “the form of procedure used to prosecute the
crime”, I am satisfied that the RPD was aware of these two levels (given
that it reproduced section 273.5(a) of the Penal Code of California
at para 31of its decision).
[21]
The decision in Canada (Citizenship and
Immigration) v Lopez Velasco, 2011 FC 627, cited by the applicant, is
of no assistance to him. The Court indicated at para 46 of that decision that
the “RPD was entitled to consider the hybrid nature”
of the section relevant to the case. However, allowing the RPD to consider the
fact that his mode of prosecution was the less serious is not the same as
obliging it to make explicit reference to this in its decision.
[22]
The respondent has drawn my attention to
subsection 36(3) of the IRPA, which states that, for the purpose of
determining whether a crime is sufficiently serious to justify denying access
to Canada for serious criminality, the mode of prosecution is irrelevant. The
respondent submits that the same principle should apply here.
[23]
In my view, it was reasonable for the RPD to
conclude that the crime committed by the applicant was serious even though the
charge was prosecuted in the Municipal Court. The RPD was not obliged to make
explicit reference to the mode of prosecution in California.
[24]
As for the RPD’s statements that the applicant
was convicted of both of the offences with which he had initially been charged
(instead of only one), I am of the view that the RPD did understand the facts
and that this was simply a minor inaccuracy. The RPD clearly indicated at
para 24 of its decision that one of the two charges had been withdrawn,
and I am satisfied that this fact was kept in mind throughout the decision.
[25]
As for the fact that the sentence of eight
months’ imprisonment imposed on the applicant was suspended, I am again of the
view that the RPD properly understood the evidence. Despite the fact that the
RPD did not mention this explicitly, I have no reason to believe that it was
unaware that the sentence was suspended. I am satisfied that the RPD
concentrated on the facts that were more central to its decision, such as the
injuries sustained by Ms. Garcia.
IV.
Conclusion
[26]
I therefore conclude that the RPD did not make a
sufficiently significant error to render its decision unreasonable. This conclusion
is sufficient to dismiss the present application for judicial review.
[27]
Before I conclude, I would like to address the
applicant’s argument that his crime was not serious. In particular, the applicant
submits that this type of domestic dispute occurs in 40% of families, that
Ms. Garcia was the one who had started it, that she was not the one who
had called the police and that she had refused medical care (implying that her
injuries were not serious).
[28]
I do not know where to begin with this series of
submissions. As a general comment, I agree with the respondent that these
arguments demonstrate that the applicant has learned very little about conjugal
violence since the 1996 incident.
[29]
No domestic dispute, regardless of who started
it, justifies beating one’s spouse. The police report of the incident describes
injuries indicative of serious violence, despite Ms. Garcia’s refusal of
medical care.
[30]
The fact that a neighbour called the police
after hearing Ms. Garcia’s screams suggests that the reason she did not
call the police herself was not that the [translation]
“argument” was not serious, but rather that she
was in the process of being beaten, and therefore incapable of calling the
police herself.
[31]
The fact that the victim was the applicant’s
spouse is an aggravating circumstance: subparagraph 718.2(a)(ii) of
the Criminal Code; Unachukwu v Canada (Citizenship and Immigration),
2014 FC 199 at para 26. The fact that the applicant’s minor children
were present during the incident is another aggravating circumstance.
[32]
The parties have not suggested any serious
question of general importance warranting certification.
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