Docket: A-315-13
Citation:
2014 FCA 157
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CORAM:
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NADON J.A.
STRATAS J.A.
SCOTT J.A.
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BETWEEN:
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NOE GAMA SANCHEZ
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Appellant
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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 OF THE COURT
(Delivered from the Bench at Vancouver, British Columbia, on June 10, 2014).
STRATAS J.A.
[1]
This is an appeal from the judgment of the
Federal Court (per Justice Russell) dated August 29, 2013: 2013 FC 913.
The Federal Court dismissed the appellant’s application for judicial review
from the Refugee Protection Division’s decision dated October 30, 2012.
[2]
In its decision, the Refugee Protection Division
found that the Applicant had committed a
“serious non-political crime” outside Canada and, thus, was excluded from
refugee protection pursuant to Article 1F(b) of the United Nations Convention
Relating to the Status of Refugees and section 98 of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27.
[3]
The central issue before the Federal Court was
when the seriousness of the crime under article 1F(b) of the Convention
should be assessed. Should it be assessed at the time of the commission of the
crime or at the time of the Refugee Protection Division’s determination? The
Federal Court concluded that the relevant time for assessment is the time of
determination.
[4]
One factor to be assessed when considering the
seriousness of the crime is to examine the penalty in Canada for an equivalent crime. In this case, at the time of the Division’s determination, the
penalty in Canada for the equivalent crime was much higher than it was at the
time the appellant committed the crime abroad.
[5]
On this point, we substantially agree with the
Federal Court’s reasons and conclusion at paragraphs 59-62 of its reasons.
[6]
In assessing the seriousness of the crime, the
Refugee Protection Division must consider all relevant considerations
pertaining to the factors set out in Jayasekara v. Canada (Minister of Citizenship and Immigration), 2008 FCA 404, [2009] 4 F.C.R.164 at paragraph
44. In assessing the penalty for the equivalent crime under Canadian law, the
Refugee Protection Division cannot close its eyes to the law that is on the
books at the time of its determination.
[7]
The appellant submitted that this Court in Febles
v. Canada (Minister of Citizenship and Immigration), 2012 FCA 324 at
paragraph 52 held that the seriousness of the crime should be assessed at the
time of commission. But in making that comment, this Court was responding to
the submission that the offender’s later rehabilitation could affect the
assessment of the seriousness of the crime. This Court did not deal with the
question before us, which is the relevance of a later change in the penalty for
the equivalent crime in Canada.
[8]
The appellant accepts that if the Federal
Court’s decision on this point is correct, the decision of the Refugee
Protection Division was reasonable.
[9]
Accordingly, despite the able submissions of
counsel for the appellant, we will dismiss the appeal. We will answer the
certified question as follows:
Question: When assessing the Canadian equivalent of a foreign
offence in the context of exclusion under Article 1F(b) of the Convention
Relating to the Status of Refugees and the Jayasekara factors, should the
Refugee Protection Division Member assess the seriousness of the crime at issue
at the time of commission of the crime or, if a change to the Canadian
equivalent has occurred in the interim, at the time when the exclusion is being
determined by the Refugee Protection Division?
Answer: If a change to the penalty for the Canadian equivalent
offence has occurred, the assessment should be done at the time when the
Refugee Protection Division is determining the issue of the section 1F(b)
exclusion.
[10]
There are no special reasons for an award of
costs in this case and so there will be no award of costs.
"David Stratas"
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