Docket: IMM-7692-23
Citation: 2024 FC 1914
Ottawa, Ontario, November 28, 2024
PRESENT: The Honourable Mr. Justice Fothergill
BETWEEN: |
NINI JOHANA RODRIGUEZ ANZOLA |
Applicant |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
I. Overview
[1] Nini Johana Rodriguez Anzola is a citizen of Colombia. On May 31, 2023, the Immigration Division [ID] of the Immigration and Refugee Board [IRB] found her to be inadmissible to Canada on the grounds of serious criminality pursuant to s 36(1)(b) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. She seeks judicial review of the ID’s decision.
[2] In November 2016, Ms. Rodriguez Anzola and her husband Nelson Botero Martinez were charged with “Fabrication, Trafficking or Carrying Drugs”
contrary to article 376 of the Código Penal, ley 890 de 2004 [Colombian Penal Code]. They explained to their lawyer that they had been coerced into committing the crime by the Revolutionary Armed Forces of Colombia, known in Spanish as the Fuerzas Armadas Revolucionarias de Colombia [FARC]. Their lawyer shared this information with the prosecuting authorities, but the couple were offered no protection.
[3] Ms. Rodriguez Anzola did not formally raise the defence of duress, although it was available to her as a matter of law. Criminal proceedings in Colombia are public, and she was concerned that the FARC would monitor her trial and cause harm to herself or her family if she revealed any information about them.
[4] Ms. Rodriguez Anzola pleaded guilty to the charge on September 18, 2017. She did not appeal her conviction or sentence.
[5] The minimum sentence for the offence was eight years’ imprisonment, but Ms. Rodriguez Anzola received a sentence of 48 months. She spent 13 months in jail, and then served 23 months under house arrest. She completed the remainder of her sentence on probation, which ended on November 17, 2020.
[6] Ms. Rodriguez Anzola does not dispute the equivalency of the Colombian and Canadian offences. Nor does she deny that she engaged in the conduct that constituted the essential elements of the offence. While the defence of duress is recognized in Colombian law, she says it was not reasonably available to her.
[7] Ms. Rodriguez Anzola argues that the ID breached her right to procedural fairness by excluding evidence that was relevant to her claim of duress, and unreasonably failed to consider duress when conducting the equivalency analysis.
[8] The ID properly limited its analysis to the equivalency of the Colombian and Canadian offences, and whether Ms. Rodriguez Anzola had committed the essential elements of the offence. She conceded all of these points, and the ID’s decision was therefore reasonable and procedurally fair.
[9] Nevertheless, Ms. Rodriguez Anzola’s case may be distinct from those that gave rise to the leading appellate jurisprudence on criminal inadmissibility. A question will therefore be certified for appeal.
II. Background
[10] Mr. Botero Martinez worked as a taxi driver in Colombia. One of his clients was in charge of the FARC in Cundinamarca and Bogota. He demanded that Mr. Botero Martinez and Ms. Rodriguez Anzola transport cocaine abroad. He threatened to harm the family and recruit the children into the FARC.
[11] The couple initially ignored repeated telephone calls from the FARC, but in November 2016, Ms. Rodriguez Anzola’s niece returned from school crying. She said that three men had approached her and threatened to hurt her cousins if her uncle did not answer his telephone.
[12] Mr. Botero Martinez and Ms. Rodriguez Anzola eventually acceded to the FARC’s demands. On November 16, 2016, they ingested cocaine in advance of a flight to Spain. However, they were apprehended by the Colombian authorities at the Bogota airport.
[13] In December 2020, while Mr. Botero Martinez was still serving his criminal sentence, he continued to receive threatening telephone calls from the FARC. At the end of his house arrest in February 2021, the family moved to another location within Colombia.
[14] Mr. Botero Martinez says he was physically assaulted in November 2021. The following month, his children were approached by members of the FARC. On January 1, 2022, one of his sons and his girlfriend were seriously injured.
[15] Mr. Botero Martinez arrived in Canada with his sons and niece on January 11, 2022, and sought refugee protection. Ms. Rodriguez Anzola arrived in Canada on April 11, 2022, and made a similar refugee claim.
[16] Due to their criminal convictions in Colombia, Mr. Botero Martinez and Ms. Rodriguez Anzola were referred to the ID for admissibility hearings. Their claims were heard separately by different members of the ID. Ms. Rodriguez Anzola was found to be inadmissible to Canada for serious criminality, while Mr. Botero Martinez was not. An appeal of the finding that Mr. Botero Martinez is not inadmissible has been held in abeyance pending the outcome of this proceeding.
III. Decision under Review
[17] The ID found that Ms. Rodriguez Anzola was inadmissible to Canada for serious criminality pursuant to s 36(1)(b) of the IRPA. The ID held that her case was analogous to Beltran v Canada (Citizenship and Immigration), 2016 FC 1143 [Beltran].
[18] In Beltran, Justice Ann Marie McDonald confirmed that the role of the ID in assessing criminal inadmissibility is only to determine the equivalency between foreign and domestic offences. It is not to weigh evidence of a possible defence available in the foreign jurisdiction.
[19] The ID concluded as follows (at para 58):
In light of these undisputed facts, and having considered the relevant jurisprudence, I do not find it appropriate to speculate now on the possible application of certain defences, given that she did willingly enter a plea of guilty. […] As already stated, for the purposes of my equivalency analysis, I have compared the defence of duress in Colombia with the defence of duress in Canada and I have found them to be equivalent.
IV. Issues
[20] This application for judicial review raises the following issues:
Was the ID’s decision procedurally fair?
Was the ID’s decision reasonable?
Should a question be certified for appeal?
V. Analysis
[21] Procedural fairness is subject to a reviewing exercise best reflected in the correctness standard, although strictly speaking no standard of review is being applied (Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at para 54). The ultimate question is whether an applicant had a full and fair opportunity to be heard (Siffort v Canada (Citizenship and Immigration), 2020 FC 351 at para 18).
[22] The merits of the ID’s decision are subject to review by this Court against the standard of reasonableness (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] at para 10). The Court will intervene only where “there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency”
(Vavilov at para 100).
[23] The criteria of “justification, intelligibility and transparency”
are met if the reasons allow the Court to understand why the decision was made, and determine whether the decision falls within the range of acceptable outcomes defensible in respect of the facts and law (Vavilov at paras 85-86, citing Dunsmuir v New Brunswick, 2008 SCC 9 at para 47).
A. Was the ID’s decision procedurally fair?
[24] The ID refused to admit two packages of evidence comprising:
(a)an affidavit sworn by Mr. Botero Martinez, documentation concerning a wreath that was placed on the family’s home in Bogota, a letter purportedly from someone within the FARC, photographs, and a letter from a friend of Mr. Botero Martinez – this evidence was intended to demonstrate that the FARC was still pursuing Ms. Rodriguez Anzola and her family in Colombia as of 2023; and
(b)documentation relating to the refugee claims of Ms. Rodriguez Anzola’s sons and niece, all of whom were granted protected status by the Refugee Protection Division [RPD] of the IRB.
[25] Ms. Rodriguez Anzola says this evidence was relevant to the question of her inadmissibility, and the ID was wrong to exclude it. The ongoing threats demonstrated the FARC’s persistence, reinforced her credibility, and supported her claim that she continued to be under duress throughout her criminal trial. The RPD’s decision to grant refugee status to her children and niece also buttressed the credibility of her claim.
[26] Ms. Rodriguez Anzola notes that the ID member who presided over Mr. Botero Martinez’s hearing agreed to receive similar evidence before concluding that he was not inadmissible to Canada.
[27] The ID said the following about the relevance of this evidence to the determination of Ms. Rodriguez Anzola’s criminal inadmissibility:
I am struggling to find the relevance with these documents in this proceeding today. […] I think that it is important to remind ourselves of what exactly is being decided here.
[…] Counsel is advancing the defence of duress, that [Ms. Rodriguez Anzola] had no choice really. But how as I view it, there is a temporal component, the timing is relevant. So I do agree with the Minister, I do not see the relevance of the information related to the wreath or the incidents that happened quite recently in 2023 with the taxi drivers and [the] husband’s taxi friend. […]
And with respect to the decision of the Refugee Protection Division […] the Refugee Protection Division is considering a much broader range of issues when they made – when they render that decision and what I am considering here today.
[28] Relying on Beltran, the ID member understood her role to be limited to assessing the equivalency of the foreign and domestic offences as a matter of law. Assuming this was the right approach, then the evidence of the FARC’s tenacity and the credibility of Ms. Rodriguez Anzola’s assertion that she remained under duress throughout her criminal trial was irrelevant to the matter under consideration.
[29] As will be seen in the analysis that follows, I find that the ID’s decision was consistent with binding jurisprudence and was therefore reasonable. Accordingly, the ID’s decision to exclude evidence of the broader circumstances surrounding Ms. Rodriguez Anzola’s criminal trial did not breach her right to procedural fairness.
B. Was the ID’s decision reasonable?
[30] The IRPA provides in s 36(1)(b):
Serious criminality
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Grande criminalité
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36 (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for
. . .
(b) having been 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; or
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36 (1) Emportent interdiction de territoire pour grande criminalité les faits suivants :
. . .
b) être déclaré coupable, à l’extérieur du Canada, d’une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans;
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[31] In Zeine v Canada (Citizenship and Immigration), 2023 FC 1370, Justice Nicholas McHaffie provided the following summary of the leading jurisprudence pertaining to criminal inadmissibility (at paras 8-9, citing Hill v Canada (Minister of Employment and Immigration), [1987] FCJ No 47 (CA) [Hill] and Li v Canada (Minister of Citizenship and Immigration) (CA), 1996 CanLII 4086 (FCA) [Li]):
In Hill, the Court of Appeal overturned an adjudicator’s finding that Mr. Hill was inadmissible under the predecessor to paragraph 36(1)(b) based on a burglary conviction in Texas. In concurring reasons for the majority of the Court, Justice Urie referred to the determination of whether a foreign offence “would constitute an offence … in Canada” as a determination of the “equivalency” between the foreign offence and the relevant provision in the Canadian statute. He held that this equivalency could be determined in three ways: (1) by comparing the precise wording in each statute—through documents and, if available, expert evidence—to determine the essential ingredients or elements of the respective offences; (2) by examining the evidence adduced before the adjudicator to ascertain whether the evidence was sufficient to establish that the essential elements of the offence in Canada had been proven in the foreign proceedings; or (3) through a combination of (1) and (2).
In Li, the Court of Appeal concluded that assessing the essential elements of the offence for purposes of the equivalency analysis described in Hill requires consideration of both the elements and defences particular to the offence: Li at paras 18–19; Canada (Public Safety and Emergency Preparedness) v Gaytan, 2021 FCA 163 at para 70.
[32] Ms. Rodriguez Anzola argues that the ID’s reasons were unreasonable because they did not meaningfully address her inability to raise the defence of duress at her criminal trial. She says that the equivalency analysis must begin by determining “whether there are reasonable grounds to believe that the Applicant would be convicted if the same act were committed in Canada”
(citing Moscicki v Canada (Citizenship and Immigration), 2015 FC 740 at para 28 [Moscicki]).
[33] Ms. Rodriguez Anzola conceded the equivalency of the relevant offence in the Colombia Penal Code and its Canadian counterpart, both of which recognize the defence of duress. She also admitted to the essential elements of the Canadian offence. She explained to her Colombian lawyer that she had been coerced into committing the crime, and this information was duly shared with the prosecution. She pleaded guilty to the offence, and received a sentence that was less than the prescribed minimum. She served the majority of her sentence under house arrest.
[34] As Justice Glennys McVeigh observed in Moscicki (at para 28):
The key point is that it is not necessary for the Board to determine whether there was sufficient evidence for an actual conviction in Canada. It is whether there are reasonable grounds to believe that the Applicant would be convicted if the same act were committed in Canada. Consequently, the equivalence is between the provisions and not the comparability of possible convictions. […] [Emphasis original.]
[35] This determination does not include “weighing evidence of a possible defence not raised in the foreign jurisdiction to determine whether the impugned conduct would have resulted in a conviction in Canada”
(Beltran at para 18). As in Grillo v Canada (Public Safety & Emergency Preparedness), 2021 FC 343 (at para 3), the ID was not required to retry the foreign case or speculate on the chance of success of certain defences, particularly in light of the fact that Ms. Rodriguez Anzola pleaded guilty. (See also Tesfazgi v Canada (Citizenship and Immigration), 2022 FC 1356 at para 44.)
[36] Unlike proceedings concerning exclusion under Article 1F(b) of the United Nations Convention Relating to the Status of Refugees, Can TS 1969 No 6, the determination of criminal equivalency under s 36(1)(b) of the IRPA does not permit consideration of allegations of bias or corruption pertaining to the foreign conviction (Gurbuz v Canada (Citizenship and Immigration), 2018 FC 684 [Gurbuz] at para 25. The Federal Court of Appeal has confirmed that the validity or merits of the foreign conviction are not at issue in the equivalency analysis (Brannson v Minister of Employment and Immigration, [1981] 2 FC 141 at p 145; Li at para 25).
[37] Ms. Rodriguez Anzola urges this Court to approach the equivalency analysis in the same manner as the ID in the proceeding that found Mr. Botero Martinez not to be inadmissible for serious criminality (ID File: 0003-C3-00153-01, November 3, 2023 at paras 62-63):
[…] circumstances in which an individual is coerced into performing criminal acts and then coerced from raising a defense against those actions, cannot reasonably have been intended to be captured by subsection 36(l)(b) of the IRPA. The central tenet of the jurisprudence appears to be that we should not interpret and apply the IRPA in a manner that renders an individual inadmissible for morally involuntary conduct, whether that is in the context of the security provisions, membership in a criminal organization, or criminal activity itself.
This is not a retrial of the case; it is an assessment of whether or not the defence of duress (a defence that is available in Canada) was in actuality or reasonably available to Mr. Botero Martinez in Colombia as I am required to do in an equivalency analysis. I have focused my analysis on this question.
[38] The difficulty with this approach is that it departs from the well-established principle that a foreign conviction must be taken at face value. As Justice Alan Diner observed in Mansouri v Canada (Citizenship and Immigration), 2018 FC 144, which concerned a finding of inadmissibility by a visa officer: “The Officer does not have a duty – statutory or otherwise – to review the due process that occurred within the foreign trial, which would be akin to an appeal, and create a whole host of challenges; neither IRPA nor the jurisprudence imposes such a weighty legal duty on visa officers”
(at para 16).
[39] The judicial process in a foreign country must not be subjected to “finicky evaluations”
against the rules governing the legal process in this country (Li at p 256, citing Schmidt v The Queen, [1987] 1 S.C.R. 500; see also Halilaj v Canada (Public Safety and Emergency Preparedness), 2017 FC 1062 [Halilaj] at para 30; Gurbuz at para 30).
[40] I therefore conclude that the ID properly limited its analysis to the equivalency of the Colombian and Canadian offences, and whether Ms. Rodriguez Anzola had committed the essential elements of the offence. She conceded all of these points, and the ID’s decision was therefore reasonable.
[41] The Respondent notes that other mechanisms exist to alleviate the consequences of a finding of inadmissibility for serious criminality (e.g., IRPA, ss 25, 36(3)(c)).
C. Should a question be certified for appeal?
[42] In order to be certified, a question must be a serious one of general importance that would be dispositive of the appeal. The question must have been raised and dealt with in the judge’s reasons (Canada (Minister of Citizenship and Immigration) v Zazai, 2004 FCA 89 at paras 11-12).
[43] In Halilaj, the applicant argued that the ID was obliged to consider the fairness of the trial that led to the criminal conviction in circumstances where the foreign legal system did not respect Canadian levels of human rights and other procedural protections. As in this case, the applicant in Halilaj argued that failing to consider trial fairness would be inconsistent with the values that underlie s 36(1)(b) of the IRPA.
[44] Justice McVeigh declined to certify questions for appeal, stating (at para 37):
[…] the question of threshold was already answered by the FCA and found not to be part of the legal test. The FCA jurisprudence holds “the validity or the merits of the conviction is not an issue” (Brannson v Canada (Minister of Employment and Immigration) (1980), [1981] 2 FC 141 (CA) at 145 [Brannson].
[45] Ms. Rodriguez Anzola seeks to distinguish her circumstances from those that gave rise to the leading appellate jurisprudence on the ground that the factors preventing her from invoking the defence of duress were external to the prosecution itself. She says she is not challenging the fairness of her trial in Colombia. Nor is she seeking to re-litigate her criminal conviction. Rather, she maintains that the ID should have the capacity to consider extenuating circumstances, such as those that caused the defence of duress not to be practically available to her.
[46] Ms. Rodriguez Anzola says there is uncertainty surrounding the ID’s capacity to consider the implications of defences that were not reasonably available in the foreign jurisdiction. The ID’s assessments of the inadmissibility of Ms. Rodriguez Anzola and her husband were based on the same facts and legal considerations, but resulted in conflicting decisions. The two decision makers’ interpretations of the applicable jurisprudence were also inconsistent.
[47] Ms. Rodriguez Anzola notes that the leading appellate jurisprudence (Hill, decided in 1987, and Li, decided in 1996) is now quite dated. She questions whether it continues to align with current legal standards. In the more recent decision of Canada (Public Safety and Emergency Preparedness) v Gaytan, 2021 FCA 163, the Federal Court of Appeal confirmed that the ID may consider a defence of duress in the context of inadmissibility proceedings pursuant to s 37(1)(a) of the IRPA (membership in a criminal organization; participation in specified transnational crimes). This suggests that empowering the ID to consider certain defences for the first time would not be excessively burdensome.
[48] I accept that Ms. Rodriguez Anzola’s case may be distinct from those that gave rise to the leading appellate jurisprudence on criminal inadmissibility. She should be given the opportunity to revisit this matter before the Federal Court of Appeal, in light of the particular circumstances that gave rise to the finding of inadmissibility in her case.
[49] A question will therefore be certified for appeal.
VI. Conclusion
[50] The application for judicial review is dismissed.
[51] The following question will be certified for appeal:
In determining whether an individual is inadmissible under s 36(1)(b) of the Immigration and Refugee Protection Act, are the Immigration Division and Immigration Appeal Division of the Immigration and Refugee Board entitled to consider extenuating circumstances that caused certain legal defences not to be practically available to the claimant in the foreign jurisdiction?
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