Friday, August 30, 2013

IMMIGRATION CONSEQUENCES NO "FREE PASS" FOR CRIMINALS

I was quoted in The Lawyers Weekly commenting on the recent Alberta Court of Appeal decision on criminal sentencing and immigration consequences:


Deportation threat no cause for leniency

By Michael Benedict

The Lawyers Weekly
Vol. 33, No. 16 (August 30, 2013)

 

In uncharacteristically forceful language, the Alberta Court of Appeal has ruled that a trial judge's conditional discharge for a "doubly abhorrent" assault thoroughly misapplied sentencing principles that relate to non-Canadians.

In R. v. Bandesha [2013] A.J. No. 800, the court said the 32-year-old male respondent, a permanent Canadian resident for a decade, participated in a "vicious group attack" in which they "attacked, pushed, kicked and beat a family member in order to coerce her to marry someone whom she did not want to marry." According to the court, the sentencing judge issued a conditional discharge to Balsher Singh Bandesha, a long-distance truck driver, to "avoid any danger of deportation and to avoid any difficulty in crossing the American border."

At issue is the extent to which a judge may reduce a sentence for non-Canadians so that they may have an opportunity to appeal any deportation order that results from a conviction. Earlier this year, amendments to the Immigration and Refugee Protection Act reduced to six months or fewer the sentencing ceiling for launching such appeals. Previously, any non-Canadian had to be sentenced to two years or more before automatically losing the right to appeal a removal order to the Immigration Appeal Division on humanitarian and compassionate grounds.

In Bandesha, "the sentencing reasons made errors in principle," the Alberta Court of Appeal said in its August 6 decision written by Justice Jean Côté. "They did not properly apply the principles in Pham (R. v. Pham [2013] S.C.J. No. 100) and failed to consider denunciation. Proportionality got little or no weight, and the sentence is unfit."

In summarizing the Supreme Court of Canada's Pham ruling, Justice Côté said: "Some personal circumstances of the offender, such as possible deportation, can be taken into account[...]But such circumstances do not overrule proportionality, and every sentence must fit the crime and the offender. Immigration consequences cannot make the sentence disproportionate to the gravity of the offence or the degree of the offender's responsibility."

Noting that "there was nothing technical or minor about this assault, nor about the respondent's role," Côté goes on to explain that Pham's intent is to: "[...]involve trimming a few days (or weeks) off a fit sentence for immigration reasons. We have not seen any precedent for adopting a completely different type of sentence for immigration purposes."

According to Toronto immigration law specialist Sergio Karas, the Bandesha decision sends a strong message that a person's immigration status is not a "free pass" when it comes to sentencing. He added that Bandesha also makes it clear that one can't rely on Pham to produce a disproportionate sentence.

Before Pham, Karas said some judges imposed sentences of two years less a day for non-citizens so they could retain their right to appeal a deportation, while Canadians received much longer sentences for the same offence. "That was thoroughly ridiculous," he said.

Furthermore, Karas added that Bandesha is also noteworthy because of the strong language the court used to condemn social practices that might be accepted elsewhere.

Writing for a unanimous three-judge panel, Côté said: "In some cultures, women are not free to choose or reject a prospective spouse. That sort of coercion is abhorrent to Canadian society, and physical beatings to enforce such coercion are doubly abhorrent."

Said Karas: "Appeal courts don't normally use such language. It's really unbelievable. You can feel their frustration."

For his part, criminal lawyer Brian Heller, of Heller, Rubel in Toronto, said his "eyebrows shot up" when he read the facts of the case, especially the part about "pulling out a large clump of her hair by the roots." Heller said Bandesha demonstrates that Pham is of no help if the sentence does not fit the crime. "First you have to look at the offence," he adds, "and then you can perhaps vary the sentence within reasonableness."

Said Heller: "Bandesha is a practical application of how Pham precludes a convicted person from benefitting from a claim for leniency if the sentence is not appropriate."

The Alberta Crown Prosecution Service appealed the conditional discharge on the successful grounds that the judge erred in principle when applying the sentence. "There's no way someone should have received a conditional discharge in this case," said Brian Graff, appellate counsel in the Alberta Department of Justice and Solicitor General. "Bandesha confirms that immigration consequences can't produce a disproportionate sentence."

Graff, who argued the appeal, says Bandesha "spells out more clearly that, yes, a convicted person's immigration status can have an effect -- but only a small effect."

Ironically, in the end, Bandesha will have a right to appeal any deportation order that might result from his conviction for assault causing bodily harm. That is because he received only a 90-day sentence, the same as that imposed on his father, who the appeal court described as the "ringleader" of the attack. But because of the father's sentence, the court said, "we feel unable to go higher."

Lawyers for Bandesha declined to comment on the case or the court decision.

Thursday, August 29, 2013

APPLICATIONS TRANSFERRED FROM BUFFALO TO BE DEALT WITH SOON?

Deadline looms as thousands of ‘forgotten’ would-be immigrants await decision

Deadline looms as thousands of ‘forgotten’ would-be immigrants await decision

 
 
 

 

MONTREAL, QUE.: DECEMBER 4, 2012-- McGill University graduate and immigrant from Iran, Alireza Saberi, poses for a photograph in his neighbourhood of Cote-des-Neiges in Montreal on Tuesday, December 4, 2012. Saberi's Canadian residency has already been delayed for two years after the federal government closed the Buffalo visa office and transferred applications to the Ottawa office. (Dario Ayala for Postmedia News) For Tobi Cohen (Postmedia News) 1205-immigrant-Buffalo ORG XMIT: POS1212041457430813

Photograph by: Dario Ayala for Postmedia News, Postmedia News

OTTAWA — The federal government remains confident that the majority of so-called “forgotten” Buffalo immigration applications will be completed by the end of the season as promised even though new figures suggest nearly 40 per cent of the files have yet to be processed.
With just a month to go before summer draws to an end, 3,568 applications remain in the queue, according to the figures obtained by Postmedia News and considered up-to-date as of Aug. 20.
“Most of the files that were transferred from Buffalo to the Ottawa processing office will be completed by the end of summer 2013,” Citizenship and Immigration spokeswoman Sonia Lesage said in an email.
“For the majority of immigration streams, new applications submitted to Ottawa are being processed more quickly than they were during the same time last year in Buffalo.”
Lesage suggested the ongoing strike by foreign service workers will not impact the processing of the remaining Buffalo files. Several foreign visa offices were shut down as a result of the strike and the central processing centre has had to take on some of the burden as a result.
Some 9,417 files, many of them recent university graduates with in-demand skills, were transferred to Ottawa when the government closed the upstate New York visa office in May 2012 after announcing foreign students and workers living in Canada would no longer have to leave the country to renew a visa or apply for permanent residency.
Citizenship and Immigration, however, came under fire in December after antsy applicants — a number of whom had already waited as long as two years for their papers while watching others who applied later get their permanent residency before them — started to complain about delays.
The NDP accused overworked and understaffed citizenship officers of simply forgetting about the boxes of Buffalo files sitting in the corner after the move as many of the applicants hadn’t even received a file number much less been assigned a case worker which meant their applications were still in the very early stages of processing.
The government acknowledged delays of around 15 months at the time and promised the Buffalo files would be completed by the end of summer 2013.
According to the figures released by Citizenship and Immigration, 4,982 Buffalo files have so far been approved, 483 were refused and 384 were withdrawn.
The bulk of files, including the majority of pending files, involve skilled worker and provincial applicants

IMMIGRANT CONVICTED OF MANSLAUGHTER IN NIGHTCLUB DISPUTE RECEIVES NINE YEAR SENTENCE

Another case considering the impact of R.v. Pham. However, because the sentence is so far off the threshold that triggers appeal rights to the IAD, there is little impact on the decision-making process by the court. 

R. v. César

Between
Her Majesty the Queen, and
Rosny César
[2013] O.J. No. 3623
2013 ONSC 4190

Court File No. JJ-10-1014

 Ontario Superior Court of Justice
L'Orignal, Ontario

R.J. Smith J.


Heard: May 9, 2013.
Oral judgment: July 30, 2013.
(77 paras.)


REASONS FOR SENTENCE
1     R.J. SMITH J. (orally):-- The offender Rosney César ("César") was found guilty of the offence of manslaughter contrary to s. 236(b) of the Criminal Code of Canada (the "Code") after a trial by jury.


A.

Circumstances of the Offence


2     The victim Danny Trineer ("Trineer") was 32 years of age and lived with his father. On the evening of September 10, 2010, Trineer and two friends decided to go to the Déjà Vu restaurant in the town of Hawkesbury. They then went to the second floor which has a dance bar called the Jamais Vu, which is the only dance bar in the town of Hawkesbury.
3     The victim had previously worked as a bouncer or "assistant manager" at the Déjà Vu restaurant.
4     The offender worked until midnight on September 11, 2010. When he arrived home, his girlfriend Marie-Pierre asked him to go to the Déjà Vu restaurant with a friend Melissa. They arrived at the Déjà Vu restaurant at 12:39 a.m. on September 11, 2010 and went up to the Jamais Vu dance bar.
5     At approximately 12:46 a.m., a dispute occurred between Marie-Pierre and a woman in the victims' group. As a result of this dispute, there was a verbal confrontation between Trineer and César. César testified that during the confrontation the victim threatened to kill him and his girlfriend that night and he alleged that the victim showed him a gun. I do not believe the offender's version of events as no gun or other weapon was found on the victim shortly thereafter and it is not credible for the offender to have left the Jamais Vu bar, leaving his girlfriend Marie-Pierre alone and unprotected in the presence of Trineer whom he alleged had threatened to kill her. I do find however, that there was a verbal confrontation between the victim and the offender as a result of the dispute between the two women in their respective groups and accept the offender's evidence that Trineer called him "a N who was not welcome here" or words to that effect.
6     At 12:51 a.m., the offender left the Déjà Vu restaurant and drove to his home to retrieve a 33 centimetre long knife. César then returned to the Déjà Vu at 1:02 a.m with the knife concealed on his person to pick up his girlfriend.
7     When the offender returned to the Déjà Vu restaurant, his girlfriend Marie-Pierre was standing outside the main entrance in a hysterical state, accusing the bouncers of having manhandled her and exposed her private parts when they evicted her from the Jamais Vu dance bar.
8     At approximately the same time as the offender returned to the restaurant, Trineer and his two female friends walked out of the main entrance. They walked around Marie-Pierre and continued towards the parking lot where their vehicle was parked at the rear of the restaurant. After Trineer had walked past Marie-Pierre, he continued towards the parking area. Marie-Pierre pointed at Trineer and stated that he was the one who had taken her beer away. At this point, the offender's demeanour changed such that bouncer Mr. Jalbert told a co-worker to go and call the police. Another bouncer, Christian Sauvé, was also present outside the main entrance, walked backwards in front of César trying to stop César from advancing towards Danny Trineer as he walked to the rear parking lot. Sauvé told César that he would call the police if he did not stop and to leave the premises immediately. César told him to go ahead and call the police and continued to walk towards Trineer.
9     As Trineer approached his vehicle, Marie-Pierre started to charge at Trineer, hitting him with her head on his chest on several occasions. Trineer told her to stop and warned her that he would have to hurt her if she did not stop. Marie-Pierre continued to ram him in this manner.
10     As Marie-Pierre was charging Trineer, César was approaching the victim. César testified that he wanted to speak to Triner about what Marie-Pierre told him Trineer had done to her. Shortly after Trineer threw Marie-Pierre to the ground, the offender stabbed Trineer three times in the chest area. One of the stab wounds severed his aorta and was fatal; two of the other stab wounds to his chest were potentially fatal.
11     César testified that he was acting in self-defence and only stabbed Trineer after he was attacked by Danny Trineer and the other bouncers. César's evidence that he stabbed Trineer in self-defence was rejected by the jury as they convicted him of manslaughter.
12     I further find that César intended to kill Trineer or to cause him bodily harm that he knew was likely to kill Trineer and was reckless whether Trineer died or not because of the nature of the weapon used by the offender, namely a 33 cm long knife and the infliction of three very deep stab wounds near the victim's heart, when the victim was unarmed.
13     I find that based on the evidence at trial that the jury rejected the offender's evidence that he acted in self-defence. The jury either accepted or had a reasonable doubt about whether César was provoked by Trineer throwing his girlfriend to the ground in a manner where her face struck the pavement and as a result, the jury found the offender guilty of manslaughter as opposed to second degree murder.
14     Trineer had no defensive wounds on his hands or wrists which indicate that he did not defend himself from the attack with the knife. Christian Sauvé who was also a bouncer at the Déjà Vu wrestled the knife away from the offender as Danny Trineer fell to the ground, cutting his hand in the process. César then ran away from the scene and turned himself in to the police several hours later.


B.

Offender's Circumstances


15     The offender is now 29 years of age and has no prior criminal record. The defence argues that he is a youthful offender. I agree however, he is somewhat more mature than a 19 or 20 year old first time offender.
16     The offender was born in Haïti and is not a Canadian Citizen and this conviction will affect his ability to remain in Canada and is a factor to be considered in the sentencing.
17     The offender has been continually employed while in Canada and has supported his girlfriend Marie-Pierre and her son since they commenced their relationship. The offender has also supported his mother in Haïti, especially following the earthquake.
18     César was described in the pre-sentence report by his employer as his best employee, a hard worker and he was very surprised that the offender was involved in a violent altercation. The offender's employer stated that he would rehire him even after the conviction. The employer also described him as calm and thoughtful and someone who did not get involved in conflicts at work.
19     The offender has no addiction issues as confirmed by his employer who has a regular drug testing program.
20     The offender has been double bunked throughout his pre-trial custody. The offender breached the terms of his non-communication order shortly after he was arrested and imprisoned. He pleaded guilty to this offence with the explanation that he was told by the police that he could see Marie-Pierre when he went to jail. Marie-Pierre spoke with him on the telephone after César had already given a statement to the police. Marie-Pierre came to jail to visit which the defence submits was an isolated breach. No additional institutional time or punishment was imposed other than 21 days of pre-trial custody.
21     There has been no evidence of any difficulties with the offender's conduct or behaviour while in prison and he has been respectful throughout the trial.


C.

Impact on the Victim and Family


22     The victim was killed by the actions of the offender. Victim Impact Statements were filed by the victim's mother, Line St-Jean, his father, Harry Trineer, and his close friend, Nathalie Paquette. They all testified that Danny Trineer's death has had a huge impact on them. His mother continues to be depressed and very sad. His father has lost the support that he was given to him by his son and Nathalie Paquette has lost her best friend, has become depressed and has had a relapse to substance abuse.


D.

Positions of Crown and Defence


23     Crown seeks a total sentence of 12 years which is the upper range of the eight to twelve years set out in the R. v. Clarke (2003), 172 O.A.C. 133 (C.A.) decision of the Court of Appeal. The Crown submits that a sentence at the upper end of the range should be imposed due to the high level of moral blameworthiness of the offender's conduct of stabbing the victim, who was unaware that César was armed, as he was attempting to leave the parking lot.
24     The defence argues that the appropriate range of sentence is from six to nine years and that a period of six years in jail, with credit with the pre-sentence time served on a one and half to one basis, should be imposed.
25     The Crown also seeks a non-communication order pursuant to s. 743 of the Criminal Code, namely a non-communication with Line St-Jean, Harry Trineer and Nathalie Paquette and the members of their immediate families, as well as a weapons prohibition for life pursuant to s. 109 of the Code and a DNA order. The defence does not oppose the ancillary terms and therefore a non-communciation order, the weapons prohibition and the DNA order as requested are granted as part of this sentence.
26     Both Crown and defence agree that the offender has spent 31 months of pre-sentence custody, plus the time spent between May 9, 2013 and the sentencing date of July 30, 2013; (another two and one half months). The total pre-sentence time is 33 and one half months.


E.

Mitigating Factors


27     The following are the mitigating factors:

·       (a) 
the offender has no prior criminal record; 
·       (b) 
the offender is relatively youthful at 28 years of age; 
·       (c) 
his conviction and a sentence of over two years in prison will affect his ability to remain in Canada as he is not yet a Canadian Citizen; 
·       (d) 
prior to the incident he was a responsible citizen; he was employed, described as the employer's best worker; he supported his girlfriend and her son, and supported his mother in Haïti, especially after the earthquake; 
·       (e) 
the employer described him as a thoughtful individual who declined to get involved in conflict, who was as a good worker and was willing to hire him upon his release; 
·       (f) 
there is no evidence the offender has addiction issues; 
·       (g) 
the offender has expressed remorse for what occurred in the pre-sentence report. The offender stated that he was remorseful but also said he was feeling fear that evening and apologized to the victim's family and friends. The offender also testified that he acted in self-defence and his evidence was rejected by the jury. 
·       (h) 
I have found that the jury concluded or had a reasonable doubt that the offender was provoked by the actions of the victim in throwing his girlfriend to the ground, hitting her head on the pavement, thus reducing a conviction for second degree murder to manslaughter; and 
·       (i) 
the offender's girlfriend, Marie-Pierre, was the source of the first confrontation when she was became in a dispute with the another woman that had accompanied Trineer to the Jamais Vu dance bar. Marie-Pierre's conduct also led to her being evicted from the bar. She refused to leave the dance bar when asked to leave and had to be removed by the bouncers. Marie-Pierre was very emotional and attacked Trineer as he walked to his car in the parking lot and she also became involved in a dispute with one of the girls in Trineer's group as they were leaving. 


F.

Aggravating Factors


28     Pursuant to s. 724(3) of the Criminal Code, any aggravating factors must be proven beyond a reasonable doubt by the Crown. The following are the aggravating factors.

·       (a) 
The offender was involved with a relatively minor verbal confrontation with the victim at the Jamais Vu dance bar. Immediately following this confrontation he left the restaurant and returned to his home to retrieve a 33 cm long knife and then returned to the bar with the knife concealed on his person. 
·       (b) 
After he returned to the Déjà Vu bar with the knife, the offender did not pick up his girlfriend and leave the restaurant even though he was told to leave the premises by the bouncer. 
·       (c) 
César advanced towards the victim into the parking lot as Trineer was walking to his car to leave the premises. Trineer did not initiate the confrontation. Rather, César advanced towards Trineer who was the person he had previously confronted at the Jamais Vu dance bar who he alleged had called him a "nigger" who was not welcome at the dance bar. The offender chose to confront the victim as he testified he wanted to ask the victim if the allegations made by his girlfriend Marie-Pierre were true. 
·       (d) 
The offender approached Trineer while armed with a large knife concealed on his person. The victim was unaware that the offender was armed with a knife and as a result, was very vulnerable to serious injuries by being stabbed by the offender. 
·       (e) 
Christian Sauvé, one of the bouncers, tried to stop the offender from advancing towards the victim and told him to go home or he would call the police. The offender ignored the warning and told the bouncer to go ahead and call the police. 
·       (f) 
The victim was stabbed five times by the offender. Three of the stab wounds were potentially fatal. One was a fatal stab wound to the victim's chest which severed his aorta. Two other deep stab wounds were in close proximity to the fatal wound in Trineer's chest area and were potentially fatal. The pointed end of the blade of the knife stopped when it struck the victim's rib bones in his back. There were two further minor stab wounds in the victim's back. 
·       (g) 
Trineer was unarmed and unaware that César was armed as he approached. The attack was sudden, however this is consistent with provocation having occurred after the victim threw the offender's girlfriend to the ground. The victim was unable to land any punches and he was described as flailing in the air with his fists. The victim had no defence wounds on his hands or wrists and arm area indicting that he had not tried to defend himself against the knife attack. 
·       (h) 
The offender fled the scene after the other bouncer took the knife from him and he did not remain at the scene or offer assistance to the victim. 
·       (i) 
The offence was not committed while the offender was under the influence of drugs or alcohol. This is not an aggravating factor but the absence of a mitigating factor. 
·       (j) 
The stabbing of Trineer has had a serious effect on the victim's family, both emotionally on the mother and Trineer's best friend as well as financially and emotionally on the father. 
·       (k) 
The Crown submits that a serious crime, namely a stabbing death, has a large effect on a small community. The Crown relies on the Ontario Court of Appeal case in R. v. Brunet, 2010 ONCA 781, (2010), 271 O.A.C. 25, I agree that the impact of a serious offence is important in a small community, however, the impact on society or a larger community is also significant when a serious offence is committed. 


G.

Principles of Sentencing


29     The principles of sentencing are set out in s. 718 of the Criminal Code. The applicable principles in this case are specific and general deterrence, denunciation and the rehabilitation of the accused given the lack of a criminal record and his relatively youthful age.
30     The Crown submits that greater weight should be given to the principles of denunciation and deterrence and that rehabilitation should be recognized as a secondary principle. The Crown submits that rehabilitation is not a principle to be given great weight because the offender does not suffer from any drug or alcohol problems, has no psychological problems and has no previous background which requires counselling, treatment or other rehabilitative approaches.
31     The defence submits that the principles of restraint as set out in s. 718.2(d) and (e) of the Criminal Code are applicable given that the fact that the offender has no prior criminal record and is relatively youthful.
32     I find that denunciation and general deterrence are the predominant sentencing principles in the circumstances of this case. However, the principles of restraint recognized in s. 718.2(d) are also important factors to be considered given that this accused has no prior criminal record and is of relatively youthful age.


H.

Case Law


33     In R. v. Clarke, supra, a decision of the Court of Appeal, the trial judge imposed a sentence for a manslaughter conviction of 14 years of prison and gave credit for pre-sentence custody. In the Clarke case, the victim was 47 years of age, was emaciated and frail and suffered numerous health problems. The offender stabbed him several times in his own home which was a rooming house where the offender also had a room. Two of the wounds were likely fatal. The victim had a blood alcohol level of 196 milligrams of alcohol per 100 millilitres of blood and the court described it as a brutal killing. The offender was 29 years of age at the time of the offence and in good health.
34     In Clarke, supra, the Court of Appeal referred to the decision of Bastarache J. in R. v. Stone, [1999] 2 S.C.R. 290 at para. 237, where he held that "'[t]he argument that the provocation factor was spent because it had already served to reduce the legal character of the crime overlooks the purpose of s. 232 and therefore must fail.'". The Court of Appeal went on to state "[t]hus, provocation is one of the many factors to be considered when assessing the appropriate sentence. In this case, it deserved some modest consideration."
35     At para. 8 of the Clarke, supra, decision, the Court of Appeal stated that "[i]n light of these aggravating factors, we agree that the proper range for this offence and this offender is 8 to 12 years imprisonment. The 14-year sentence imposed by the trial judge is outside that range." The Court of Appeal imposed a sentence of nine years imprisonment.
36     In R. v. Devaney (2006), 215 O.A.C. 253 (C.A.), the offender was convicted by a jury of manslaughter in the death of his landlady. The victim who was in her early 60's, was stabbed 107 times all over her body. She also sustained a blunt force injury to her head and about 25 defensive wounds indicating a significant struggle. The respondent killed the victim shortly after she told him that he had to move out so that another tenant, who was able to pay rent, could move in. The jury's verdict of manslaughter indicated that they accepted or had a reasonable doubt that the respondent committed the offence while under the influence of alcohol and was sufficiently intoxicated to lack the requisite intent for murder. The offender had no criminal record, was in his early 40s and was sentenced to 11 years in prison. The Crown appealed and sought a sentence to be increased 18 to 20 years. The appeal was dismissed.
37     In Devaney, supra, there were a greater number of stab wounds, the offender was substantially older, and he was so intoxicated that he was unable to form the intent for murder when the offence was committed. These factors distinguish it from the case before me.
38     In R. v. Cleyndert, 2006 CanLII 33851 (C.A.), the offender was convicted of manslaughter after being charged with second degree murder following a 21 day jury trial. The trial judge imposed a global sentence of 12 years imprisonment less credit for pre-sentence detention. The offence took place after the victim and others attended a field party after a high school graduation. A confrontation occurred during the course of the party involving insults and spitting on the victim's girlfriend. In the fist fight that followed, the victim threw the first punch and the appellant stabbed the victim eight times in the torso resulting in the victim's death. The victim was unarmed and had no knowledge that the offender carried a weapon. The weapon used was a butterfly knife with a five inch blade that the offender had concealed on his person.
39     In Cleyndert, the trial judge concluded that the verdict of manslaughter demonstrated that the jury had a reasonable doubt on the question of intent, however, as the appellant's moral blameworthiness was very high, and in the trial judge's view it was one of near murder. The offender was only 19 years of age at the time and there was evidence of good character and good behaviour while in pre-trial custody. The aggravating factors included that the victim was vulnerable, the offender had a youth record including convictions for assault and threatening, there was a substantial impact on the victim and his family, and the offender fled the scene.
40     At para. 11 of the Cleyndert, supra, decision, the Court of Appeal stated that the trial judge "... did not err in considering the appellant's use of a concealed prohibited weapon in a fistfight with an unarmed man as an aggravating factor on sentencing." In the case before me, Mr. César had a concealed weapon, namely a 33 cm knife concealed on his person, which he used in what the victim thought was to be a fist fight. This is an aggravating factor on sentencing.
41     In Cleyndert, supra, the Court of Appeal did not interfere with the sentence of 12 years imprisonment as the offender had inflicted multiple stab wounds in a cluster on a vulnerable part of the victim's body. The offender had been looking for a fight, was armed with a concealed prohibited weapon, and was prepared from the outset to use that weapon and used it repeatedly on an unarmed man who had approached the incident as a fist fight. This case has many similarities although the offender was much younger. He was only 19 years old and had a youth record. Also, the trial judge inferred that the offender did not have the necessary intent for murder or there was a reasonable doubt as to whether he had the intent to commit murder. In the case before me, I found that Mr. César had the requisite intent but acted under provocation.
42     In Hermiz, supra, the offender was originally charged with second degree murder but agreed to plead guilty to manslaughter based on the accepted defence of provocation. The victim initially attended a party at a motel. During the same evening, the offender attended a separate gathering at the same motel with a number of other individuals. The victim and his group ordered a pizza which arrived at 2:27 a.m. which caught the attention of members of the offender's group. The offender and members of his group followed the pizza delivery to the victim's motel room. When the victim answered the door to receive the pizza, a dispute occurred with the offender. The argument turned into a fight between the two groups. The victim broke a double sized full bottle of beer over Mr. Hermiz's head. After being struck with the beer bottle, the offender fell to the ground. He then got to his feet, immediately pulled his knife and struck the victim with it once, in the right lateral chest area. The victim died shortly thereafter.
43     At para. 11 of Hermiz, supra, Hill J. recited a number of principles from a number of cases and stated that the crime of manslaughter attracts a broad range of sentences depending on the circumstances of the offence and the offender (R. v. Clarke, supra). In Hermiz, supra, there were a number of aggravating factors which were similar to the case before me including that the offender was carrying a large knife on his person; the offender had no legitimate reason to follow the pizza man to the third floor of the motel, just as Mr. César had no legitimate reason to follow the victim to his car in the rear of the bar after been told to leave the restaurant by the bouncer. Mr. Hermiz did not make any effort to extricate himself from the confrontation nor did he reveal a knife before using deadly force. These facts are very similar to the facts of Mr. César's case. César's use of a knife is an important aggravating feature, the size of the weapon as well as the depth and the position of the stab wounds demonstrate that César had the intention to kill or cause bodily harm knowing it was likely to cause death with indifference to whether death ensued or not, and the offender fled the scene. All of the factors as set out in para. 13 of the Hermiz, supra, decision are present on the facts before me.
44     Mr. Hermiz was almost 19 years of age and was younger than César, the violence was unplanned and he acted under provocation after having a beer bottle broken over his head. The offender had no prior criminal record and was under the influence of alcohol which is not the case before me. In addition, the offender, Mr. Hermiz, pleaded guilty to manslaughter at the outset.
45     A very important factor which distinguishes Mr. Hermiz from the facts before me in Mr. César's case is there was a joint submission on sentencing and partial guilty plea at the outset. The offender, Mr. Hermiz, was approximately 19 years of age while Mr. César was 27 years of age at the time of the offence. A sentence of eight years imprisonment was imposed in Hermiz, supra.
46     In R. v. Mohammed, 2008 CanLII 60979 (Ont. Sup. Ct.), I.V.B. Nordheimer J. sentenced a 19 year old offender who pleaded guilty to manslaughter, to imprisonment for six and one half years. The trial judge stated that the appropriate sentence was nine years plus credit for time served.
47     In Mohammed, supra, a verbal and physical altercation occurred between the parties during which the offender pulled out a knife and stabbed the victim eight times and then fled the scene. The 21 year old victim later died from his wounds. The offender was 19 years old at the time of the offence, was single, had no prior criminal record, had a positive pre-sentence report which suggested that the conduct of the offender on the day in question was out of character. These facts are very similar to those in the case before me, however, is distinguished on the basis that Mr. Mohammed was only 19 years of age, much younger than Mr. César, and he had also been drinking with the victim before the altercation.
48     In Mohammed, supra, the court stated at para. 26 "... that the attitude that carrying a weapon as a legitimate form of self-protection is an approach that must be firmly and absolutely rejected." César testified that he returned to his home to get the knife, which he then hid on his person, in order to defend himself. I agree with the statement in Mohammed, supra, that using a knife as a legitimate form of self-protection should be firmly and absolutely rejected. The decision of Mohammed, supra, was upheld by the Court of Appeal in R. v. Mohammed 2009 ONCA 586.
49     In R. v. Cioppa, 2013 ONSC 1242 (Ont. Sup. Ct.), a decision of I.V.B. Nordheimer J., an 18 year old offender stabbed a 16 year old victim. Mr. Cioppa was slapped by the victim and then responded by taking out the knife and stabbing the victim once in the chest causing his death. The offender ran away from the scene and disposed of the knife in an alley. The offender had no prior record. Two psychiatric reports concluded that he was not a risk to re-offend, that he was remorseful and accepted responsibility for his actions. The offender was sentenced to eight years in prison.
50     The defence referred to the case of R. v. Yeung, [1994] O.J. No. 1495 (C.A.). In the Yeung decision, the trial judge had imposed a sentence of seven years for manslaughter after the trial judge determined that the jury had accepted that provocation was a factor. The Court of Appeal held that the trial judge gave undue weight to general deterrence in view of the fact that provocation had been accepted by the jury and stated that the appropriate sentence should have been five years in prison. This case is given limited weight as it was decided before R. v. Clarke, supra, which established the range for a morally blameworthy manslaughter to be in the eight to 12 year range. In addition, very few facts were referred to in the appeal decision as a result of the age of the offender and whether a knife was used or not is unknown.
51     R. v. Simcoe (2002), 156 O.A.C. 190 (C.A.), was an appeal from sentence where the offender had pleaded guilty to manslaughter in the death of her father. At trial, she was sentenced to four years in prison in addition to eight months of pre-sentence custody. The Court of Appeal varied the sentence to time served of approximately one year plus the pre-sentence custody for a total sentence of two and one half years in prison.
52     In Simcoe, supra, the offender had been drinking with her father and a family friend when her father sexually assaulted her. She was intoxicated at the time. The friend pulled the daughter away and took her upstairs to calm her down. Her father shouted obscenities and taunted Ms. Simcoe then came down in a rage and began throwing things around the room and subsequently stabbed her father repeatedly with a knife. The father had sexually assaulted Ms. Simcoe when she was a child, she had attempted suicide several times, abused drugs and alcohol, was 41 years of age at the time of the stabbing, and had no criminal record.
53     Simcoe, supra, is distinguished by the fact that the offender pleaded guilty to manslaughter, and there was very provocative conduct by the victim which affected the moral culpability of this defendant. This case was also decided before the Court of Appeal's decision in R. v. Clarke, supra, which established a range of eight to 12 years. The manslaughter plea may not have been based on the defense of provocation but rather on a lack of intent to kill. Also in this case, the offender had been abused by the victim in the past and the victim had sexually assaulted her that evening which were substantial mitigating factors. The offender had also consumed alcohol that evening and there was extreme provocation of the sexual assault by her father in front of a friend followed by the taunting obscenities addressed to the offender by her father.
54     The defence referred to the case of R. v. Q.B. (2003), 63 O.R. (3d) 417 (C.A.), where the offender pleaded guilty to a number of offences including possession of a loaded restricted weapon, aggravated assault and using a firearm in the commission of an indictable offence. This is not a manslaughter conviction. The offender was 18 years of age when the offences were committed. The sentence was reduced from 12 years and two months to four years and two months. The case is referred to for the principle that the restraint should be exercised and that the first penitentiary sentence should be as short as follows for a very youthful 18 year old first time offender. I agree with the rationale in R. v. Q.B., however it is distinguished by the fact that it does not deal with a manslaughter conviction, and the offender was only 18 years of age as opposed to 27 years of age in Mr. César's case. The Court of Appeal stated at para. 36 that "where the offender has not previously been to penitentiary or served a long adult sentence, the courts ought to proceed on the basis that the shortest possible sentence will achieve the relevant objectives." This principle must be considered in addition so that "[t]he length of a first penitentiary sentence for a youthful offender should rarely be determined solely by the objectives of denunciation and general deterrence." Following the R. v. Q.B. rationale, I find that the principle of rehabilitation should also be given substantial weight.
55     In R. v. Batisse, 2009 ONCA 114, (2009), 93 O.R. (3d) 643 (C.A.), the offender was an aboriginal woman who abducted a newborn infant from a Sudbury hospital in 2007. She pleaded guilty to one count of abduction of a person and was sentenced to five years' imprisonment in addition to time served of 23 days. The defence relies on this case for the principle that rehabilitation also applies in serious cases involving violence. Rehabilitation is not the determinative factor, but is a factor to be considered along with general deterrence and denunciation. This case is distinguished by the fact that it is not a manslaughter case, that the offender suffered from a mental illness which was an important factor and that the offender was an aboriginal offender where the principles of Gladue had to be considered. A sentence of two and one half years of incarceration was imposed.
56     R. v. Pham, 2013 SCC 15, (2003), 293 C.C.C. (3d) 530, is a decision of the Supreme Court of Canada where the offender was convicted of two drug related offences where the sentencing judge had imposed a sentence of two years' imprisonment in light of a joint submission by the Crown and defence counsel. At the sentencing hearing, neither party raised the issue of collateral consequences of a sentence of two years' imprisonment to the offender under the Immigration and Refugee Protection Act, (S.C. 2001, c. 27) (the "Act"). Under the Act, a non-citizen sentenced to a term of imprisonment of at least two years looses the right to appeal a removal order against him or her. The Supreme Court reduced the sentence of imprisonment to one of two years less one day to avoid the additional penalty to the offender. The collateral consequences of a sentence in excess of 24 months, namely the loss of immigration appeal rights was a factor to be considered, especially in circumstances where the sentence imposed is one of two years rather than two years less one day, and where the defence, Crown and sentencing judge had not adverted to the effect of the length of sentence by one day. The facts in this case are very different than the circumstances before me as the offender has already spent more than two years in pre-trial custody and the sentence proposed by the offender of six years already greatly exceeds the two years served. The fact that the offender will be in all likelihood deported because he has received a sentence of imprisonment in excess of two years is a factor to be given some weight in sentencing.
57     In R. v. Milina, [1992] O.J. No. 3072 (Ont. Ct. (Gen. Div.)), Watt J. sentenced the offender to five years imprisonment in a penitentiary. The offender and the victim had been quarrelling over the manner in which the offender took coffee from the pot which the deceased was in charge of. The deceased constantly berated the offender. The day of the incident, the offender thrust her fist in the air as a sign of triumph over the offender, whereupon the offender approached the deceased and stabbed her with a knife. The offender had a troubled past and was a first time offender. This case has some similarities as the offender was found not guilty of second degree murder but guilty of manslaughter to which she had pleaded guilty. This is distinguished by the fact that it was decided many years before the R. v. Clarke decision, the offender lacked the mental element of the state of mind to constitute murder. There was no excessive or gratuitous violence, although a weapon (a knife) was used on an unarmed assailant who posed no physical threat to the offender. An additional important factor is that the offender had been depressed for a substantial period of time beforehand. The offender had become fatigued through lack of sleep and felt exasperated and overwhelmed by the circumstances. The offender acted out of character and was a 58 year old first time offender.
58     In R. v. Phan, [2000] O.J. No. 6004 (Ont. Sup. Ct.), Mr. Phan pleaded guilty to manslaughter, which was accepted by the Crown due to evidence of provocation. The victim was involved with Mr. Phan's wife and when Mr. Phan asked him to cease contact, the victim challenged Mr. Phan to a fight. The offender armed himself with a carving knife and stabbed the victim to death. He then called 9-1-1 and reported the offence immediately. The offender was 32 years of age, was married with two children, was employed, and had no prior criminal record. Mr. Phan was sentenced to six years in prison.
59     In R. v. Kokopenace, [2008] O.J. No. 4582 (Ont. Sup. Ct.), the offender was charged with second degree murder but convicted of manslaughter. The offender was convicted of stabbing the deceased in the chest. The Crown argued that the appropriate range of sentence was eight to 12 years in jail. The defence argued that the appropriate range of sentence was incarceration between four to five years. The defendant was sentenced to seven and one half years in jail, did not accept responsibility for his conduct, did not express remorse, and posed a serious risk to public safety. His criminal record was extensive and the court held that denunciation and deterrence of serious criminal conduct were significant factors that mandated the need to separate the offender from the community.
60     In the Kokopenace decision, both the victim and the offender participated in binge drinking over a two day period in April 2007. The victim's death was caused by a single stab wound that entered his body in the left chest between the first rib and perforated the artery and jugular vein. The jury found that neither accident nor self-defence had any application. The trial judge found that the jury rejected the offender's testimony on all essential points save for the intoxication.
61     In Kokopenace, supra, the trial judge found that the jury could have concluded due to the extensive consumption of alcohol that the offender had not formed the intent necessary for second degree murder and also could possibly have found provocation. The trial judge found that it was more probable owing to the excessive consumption of alcohol, that Mr. Kokopenace had not formed the intent necessary for second degree murder. The trial judge imposed a term of imprisonment of seven and one half years and gave credit for pre-sentence time served. This case is distinguished by the fact that the offender was severely intoxicated at the time of the offence, he was an aboriginal man entitled to consideration of the Gladue factors, and also had a very extensive and disturbing criminal record as an adult for violent assaults.
62     In R. v. Abeyewardene, [2009] O.J. No. 3077 (Ont. Sup. Ct.), W.B. Trafford J. imposed a sentence of eight years in prison less a credit for pre-sentence custody. The offender had stabbed the victim in the neck causing his death. The victim had just left the residence of a woman after abusing her emotionally, physically and verbally and damaging her parents' residence. The offender who was 19 years of age at the time, drove towards her place of residence in response to her request to help clean up the residence. The offender saw the victim walking along the side of the road. The offender intentionally struck the victim multiple times with his vehicle after which the victim began to run in the general direction of the young woman's residence. The offender stopped his vehicle, grabbed a machete and gave chase. At one point, the victim placed the offender in a chokehold saying "... you are dead ... I am going to kill that fucking bitch and her family too ..." The offender then took out his knife and stabbed the victim multiple times in a frenzy, causing the fatal wounds.
63     The court emphasized the principles of denunciation and specific deterrence having regard for the rehabilitative interest of the offender and the need to develop a sense of responsibility for his own conduct. The attack was brutal, included the use of a vehicle, a machete and a knife. The victim was vulnerable however, this was a case where the immature Judgment of a 19 year old was clouded by moral outrage and unreasonable mistakes of fact. The defendant fled the scene failing to provide any assistance to the victim. The offender expressed remorse, had no prior criminal record, and had an impressive list of character references.


I.

Sentence and Reasons


64     Considering the above case law and the specific facts of this case outlined above, I find that given the seriousness of the multiple stab wounds inflicted by Mr. César on Trineer, including three deep stab wounds to the chest area with a 33 centimetre long knife, I find that the principles of deterrence and the denunciation are the primary factors in sentencing. However, due to the offender's lack of a criminal record that his actions appear to have been out of character, given his responsible behaviour both at work and to his family, his relative youthful age of 27 years at the time of the offence, the principles of restraint and the rehabilitation of the offender are also important factors to be considered.
65     I find that the fact that the offender was provoked or insulted by the victim throwing his girlfriend to the ground such that her head hit the pavement, is a mitigating factor. However, there are also a number of serious aggravating factors which were set out above under the heading of aggravating factors, including in particular, that the offender left the restaurant to retrieve a long knife which he concealed on his person, then returned to the restaurant, where the unfortunate hysterical actions of his girlfriend led him to advance towards the victim. Trineer was attempting to get to his car and leave the restaurant when César advanced towards him. Trineer was a former bouncer at the restaurant and was a large man, who was prepared for a fist fight, however, he was vulnerable to the offender armed with a large knife which was concealed on his person. In these circumstances, I find there was a high degree of moral blameworthiness in the offender's conduct of returning to his home to get a knife, and then returning to the bar after being told to leave the premises and then initiating a confrontation with the unarmed victim armed with a concealed weapon on his person and using the knife to stab Trineer.
66     In Clarke, supra, the Court of Appeal set a range of sentence for high morally blameworthy conduct at between eight to 12 years imprisonment prior to credit for pre-sentence custody. The Court of Appeal has upheld sentences in this range and while the defence has referred to a number of sentences that are slightly lower, none of those cases were decided following the Clarke, supra, decision and all have other distinguishing factors.
67     The facts in Hermiz, supra, decision are the closest to the circumstances in this case, other than it was a joint submission after a guilty plea, the offender was younger than Mr. César, there was extreme provocation of having a beer bottle broken over his head by the victim, as well as some evidence that the offender was under the influence of alcohol. Mr. Hermiz was sentenced to eight years' imprisonment. I find that César's sentence should be slightly higher than in Hermiz, supra, because he was not under the influence of alcohol, returned to his home to get a large knife and returned to confront the victim who was unarmed and there was no guilty plea or a joint submission on sentence.
68     Having considered all of the above factors, I find that a sentence of imprisonment of nine years in jail is appropriate in the circumstances and reflects society's concern for the sanctity of life and would provide adequate denunciation and general deterrence while allowing for an opportunity for rehabilitation.


J.

Pre-Sentence Custody


69     The offender has been in custody before sentencing for 31 months plus the time spent from May 9, 2013 to sentence for a total of 33 and one half months; 21 days of the pre-sentence custody has been removed and allocated to the breach of the no contact order.
70     In R. v. Summers, 2013 ONCA 147 (C.A.), the offender pleaded guilty to manslaughter in relation to the death of his baby daughter, attributed to shaken baby syndrome. The trial judge gave Mr. Summers enhanced credit of 1.5:1 for remand time exclusively on the basis of his inability to earn remission or parole while in remand custody.
71     Section 719(3.1) of the Criminal Code states as follows:

·       Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody unless the reason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person was detained in custody under subsection 524(4) or (8). 
72     The Court of Appeal concluded at para. 79 that:

·       Stated differently, the fact that crediting to a maximum of 1.5:1 is an expressly permitted exception to 1:1 crediting does not mean that the circumstances warranting such enhanced credit must themselves be exceptional. 
73     The Court of Appeal at para. 117 in Summers, supra further stated:

·       That said, nothing in these reasons should be understood as suggesting that enhanced credit will be available under s. 719(3.1) to every remand offender on the basis of the absence of remission and parole eligibility. There must be some basis in the evidence or the information before the sentencing judge to support the conclusion that this factor merits enhanced credit for a particular offender in a given case. 
74     In this case, the evidence before me is that the offender, other than the one breach, has been a model prisoner and has not been disciplined for breaching any of the prison's rules or regulations and has been respectful throughout the trial. However, the offender did breach the terms of a non-communication order and was sentenced to 21 days of pre-trial jail time.
75     In Summers, the Court of Appeal upheld the trial judge's decision to award a credit for pre-sentence custody on the basis of 1.5 to 1.0, based on the loss of eligibility for earned remission and early parole for the time spent in pre-sentence custody. This situation also applies to Mr. César as there is evidence that he has not breached any of the prison rules and regulations other than the terms of a no contact order. This breach was based on a misunderstanding, and he has pleaded guilty and served 21 days for this offence. Based on the circumstances of the breach and the great likelihood that he has lost earned remission as he has maintained good conduct while in prison awaiting trial and sentence. Mr. César is given credit for 46 months of pre-sentence custody.


K.

Disposition


76     The offender is sentenced to nine years in prison with credit of 46 months for pre-sentence custody, leaving a balance of five years and two months to be served in prison. Enhanced credit was given to the offender due to his loss of remission and the right to early parole. Credit was not given at the full one and one-half times to one due to the breach of the no contact order while he was in prison.


L.

Ancillary Orders


77     The offender is required to provide a DNA sample. The offender is banned from possessing any weapons for life pursuant to s. 109 of the Criminal Code. The offender is ordered not to contact Line St-Jean, Harry Trineer, Nathalie Paquette, or any members of their immediate family while in custody.
R.J. SMITH J.

Saturday, August 24, 2013

APPLICANT JOB DUTIES AT ISSUE IN SKILLED WORKER REFUSAL

A visa officer is bound by procedural fairness but only if the nature of the concerns warrant affording an opportunity to the applicant to respond. In the case below, such threshold was not met. The applicant did not provide enough evidence of its duties and his application failed.

Khowaja v. Canada (Minister of Citizenship and Immigration)

Between
Iqbal Khowaja, Applicant, and
The Minister of Citizenship and Immigration Canada, Respondent
[2013] F.C.J. No. 904
2013 FC 823

Docket IMM-5205-12

 Federal Court
Toronto, Ontario

Strickland J.


Heard: March 21, 2013.
Judgment: July 26, 2013.
(41 paras.)


REASONS FOR JUDGMENT AND JUDGMENT
1     STRICKLAND J.:-- This is an application brought pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 (the IRPA) seeking judicial review of the decision of a visa officer (Officer) of the High Commission of Canada in London, United Kingdom, refusing the Applicant's application for permanent residence in Canada as a member of the federal skilled worker class.
2     The Applicant is a citizen of Pakistan. He applied for permanent residence in Canada under National Occupation Code (NOC) 0213, computer and information systems managers. By letter dated April 25, 2012, the Officer informed the Applicant that he had not indicated that he had performed all the essential duties and a substantial number of the main duties set out in NOC 0213. Therefore, his application was ineligible for processing. This is the judicial review of that decision.
Decision Under Review
3     The decision in this case consists of the above described refusal letter and the reasons for the decision contained in the Global Case Management System Notes (GCMS Notes) made by the Officer. It is well established that GCMS Notes form part of the reasons of a visa officer (Ghirmatsion v Canada (Minister of Citizenship and Immigration) 2011 FC 519, [2011] F.C.J. No. 650 (QL) [Ghirmatsion] at para 8; Taleb v Canada (Minister of Citizenship and Immigration), 2012 FC 384, [2012] F.C.J. No. 650 (QL) [Taleb] at para 25; Rezaeiazar v Canada (Citizenship and Immigration), 2013 FC 761, [2013] F.C.J. No. 804 (QL) [Rezaeiazar] at paras 58-59; Anabtawi v Canada (Citizenship and Immigration), 2012 FC 856, [2012] F.C.J. No. 923 (QL) [Anabtawi] at para 10).
4     The refusal letter is in standard form. The relevant portion reads as follows:

·       Although the NOC code corresponds to the occupations specified in the instructions, the main duties that you listed do not indicate that you performed all of the essential duties and a substantial number of the main duties, as set out in the occupational descriptions of the NOC. I am therefore not satisfied that you are a 0213 - Computer and Information Systems manager. 

·       Since you did not provide satisfactory evidence that you have work experience in any of the listed occupations, you do not meet the requirements of the Ministerial Instruction and your application is not eligible for processing. 
5     The GCMS Notes state, in part:

·       The information submitted to support this application is insufficient to substantiate that client meets the occupational description and/or a substantial number of the main duties of NOC 0213. Client submitted a work reference letter from TRG in Pakistan. The letter describes client as a Project Manager, Data Entry and Data Processing Dept. No explanation is provided as far as the essence of the projects in which client was involved is concerned. No budgetary responsibilities or recruitment of its analysts, engineers, programmers is mentioned, only hiring of supervisors and data entry processing teams, who appear to be employees who are simply recording data in data bases. The job description provided appears to more closely resemble the one of a Data Entry Supervisor as per NOC 1211. In view of all of the concerns mentioned above, I am not satisfied that client completed a period of one year of experience in NOC 0213. Am not satisfied on basis of the information on file that client performed the duties specified in NOC 0213. 
Issues
6     Although the Applicant identified four issues in his submissions, in my view these are captured as follows:

·       1. 
Did the Officer err in assessing the Applicant's work experience? 
·       2. 
Did the Officer deny the Applicant procedural fairness? 
Standard of Review
7     A standard of review analysis need not be conducted in every instance if prior jurisprudence satisfactorily establishes which standard is to apply (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 [Dunsmuir]). Prior case law has held that the standard of review that applies to an officer's assessment of the evidence submitted to support an application for permanent residence under the federal skilled worker class will be reviewed on the reasonableness standard. This standard also applies to the application of the NOC document to the evidence (Bazaid v Canada (Minister of Citizenship and Immigration), 2013 FC 17, [2013] F.C.J. No. 39 (QL) at para 36; Gulati v Canada (Minister of Citizenship and Immigration),2010 FC 451, [2010] F.C.J. No. 771 (QL) at paras 17-18; Taleb v Canada (Minister of Citizenship and Immigration), 2012 FC 384, [2012] F.C.J. No. 400 (QL) at paras 19-20; Kamchibekov v Canada (Minister of Citizenship and Immigration), 2011 FC 1411, [2011] F.C.J. No. 1782 (QL) [Kamchibekov] at para 12).
8     In Anabtawi v Canada (Citizenship and Immigration), 2012 FC 856, [2012] F.C.J. No. 923 at para 29, Justice O'Keefe found that, when considering whether an officer applied the correct legal test for assessing an applicant's work experience, the applicable standard of review was reasonableness, citing Smith v Alliance Pipeline Ltd, 2011 SCC 7, [2011] 1 SCR 160 at para 26 where the Supreme Court of Canada held that the standard of review for questions pertaining to the interpretation of a decision maker's enabling statute or statutes that are closely connected to its function is reasonableness.
9     Adequacy of reasons is no longer a stand-alone basis for quashing a decision, but is subsumed into the analysis of the reasonableness of the decision as a whole. A reviewing court should not substitute its own reasons but may, if necessary, look to the record for the purpose of assessing the reasonableness of the outcome. If the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes then the Dunsmuir criteria have been met (Newfoundland and Labrador Nurses' Union v Newfoundland & Labrador (Treasury Board), 2011 SCC 62, [2011] SCR 708 [Newfoundland and Labrador Nurses' Union] at para 14).
10     Accordingly, the standard of review for the first issue is reasonableness.
11     Prior case law has held that whether a visa officer should bring any concerns to the attention of an applicant and offer an opportunity to address them is a question of procedural fairness reviewable on a standard of correctness (Kamchibekov, above; Obeta v Canada (Minister of Citizenship and Immigration), 2012 FC 1542, [2012] F.C.J. No. 1624 (QL) at para 14). When examining an issue of procedural fairness the Court must determine whether the process followed by the decision-maker satisfied the level of fairness required in all of the circumstances (Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 SCR 339 at para 43). Therefore, the standard of review applicable to the second issue is correctness.
Analysis
12     Sections 75 to 85 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the IRPA Regulations) address the skilled worker class. Subsection 75(2) prescribes the three requirements that must be met by an applicant to fall within that class. In essence, a skilled worker is a foreign national who has a minimum of one year experience in a listed NOC code within the ten year period preceding his or her application for permanent residence (subsection 75(2)(a)). Further, during that period of employment, has performed the actions described in the lead statement for the occupation as set out in the NOC (subsection 75(2)(b)), and, has performed a substantial number of the main duties of the occupation as set out in the NOC, including all of the essential duties (subsection 75(2)(c)). The relevant legislative provisions are contained in the Annex of this decision.
13     The NOC 0213 lead description states that:

·       Computer and information systems managers plan, organize, direct, control and evaluate the activities of organizations that analyze, design, develop, implement, operate and administer computer and telecommunications software, networks and information systems. They are employed throughout the public and private sectors. 
14     The main duties are described as:

·       Computer and information systems managers perform some or all of the following duties: 

·       * 
Plan, organize, direct, control and evaluate the operations of information systems and electronic data processing (EDP) departments and companies; 
·       * 
Develop and implement policies and procedures for electronic data processing and computer systems development and operation; 
·       * 
Meet with clients to discuss system requirements, specifications, costs and timelines; 
·       * 
Assemble and manage teams of information systems personnel to design, develop, implement, operate and administer computer and telecommunications software, networks and information systems; 
·       * 
Control the budget and expenditures of the department, company or project; 
·       * 
Recruit and supervise computer analysts, engineers, programmers, technicians and other personnel and oversee their professional development and training. 
15     Although not clearly articulated, the Applicant appears to submit that the Officer applied an incorrect test when applying the requirements of NOC 0213 to the evidence provided by the Applicant. Specifically, that the refusal letter states that the Applicant had not indicated that he had performed "all of the essential duties and a substantial number of the main duties", yet that could not be the correct test as the NOC 0213 does not include any essential duties. It contains only a lead statement and the main duties of the position.
16     The refusal letter is to be considered in the context of the GCMS Notes which, as indicated earlier, form a part of the Officer's reasons. The GCMS Notes state that the information submitted by the Applicant was insufficient to substantiate that he met the occupational description and/or a substantial number of the main duties of NOC 0213. Further, that the letter provided by The Resource Group (the TRG letter), the Applicants' employer, provided no explanation "as far as the essence of the projects in which the client [Applicant] was involved is concerned." The GCMS Notes conclude that, on the basis of the information provided, the Officer was not satisfied that the Applicant performed the duties specified in NOC 0213.
17     The GCMS Notes establish that the Officer applied the correct NOC requirements, being whether the Applicant fulfilled the occupational description (the lead statement) and a substantial number of the listed main duties.
18     The Applicant argues that the Officer erred by stating that he had failed to provide information as to the "essence of" the projects he worked on and therefore imported a new and inapplicable element to the federal skilled worker criteria. As noted above, I do not agree. The Officer was simply explaining that, by failing to describe the nature of the projects, the Applicant failed to provide sufficient information to permit the Officer to determine the "pith and substance" of the position that the Applicant held and whether or not he met the lead description.
19     The Applicant submits that the use of the word "substantial" in subsection 75(2)(c), that is, in the performance of a substantial number of the NOC main duties, leads to uncertainty as the NOC requires the performance of "some or all" of the main duties. The result being that the Decision is unreasonable. The Applicant relies on A'Bed v Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1347 (QL) [A'Bed] in support of that position.
20     I agree that A'bed, above is relevant in that it concluded that the words"some or all" take precedence over and supersede the more general language concerning a "substantial number" of the main duties, and, that "some" means more than one. Subsequently it has been held that it is an error for a visa officer to require an applicant to have performed a majority of the main duties when the relevant NOC description merely demands experience in some or all of them (Dahyalal v Canada (Minister of Citizenship and Immigration),2007 FC 666, [2007] F.C.J. No. 898 (QL) [Dahyalal] at para 4). I do not agree that the wording of subsection 75(2)(c) and the NOC is alone sufficient to render the Decision unreasonable. The jurisprudence has satisfactorily interpreted the application of those provisions.
21     The issue is whether the Officer reasonably applied the NOC requirements to the Applicant's evidence. As Justice Phelan states in Rodrigues v Canada (Minister of Citizenship and Immigration), 2009 FC 111, [2009] F.C.J. No. 114 at para 10, "The real function of the visa officer is to determine what is the pith and substance of the work performed by an applicant." The onus is on the Applicant to ensure that sufficient information is adduced (Ismaili v Canada (Minister of Citizenship and Immigration), 2012 FC 351, [2012] F.C.J. No. 381 (QL) at para 18; Mihura Torres v Canada (Minister of Citizenship and Immigration), 2011 FC 818, [2011] F.C.J. No. 1022 (QL) at para 37.
22     In that regard, the Applicant has filed an affidavit dated July 18, 2012 in support of this judicial review. Paragraph 13 of that Affidavit states that,"I need to explain in some detail what is meant by the TRG reference letter in respect to the duties to which they have referred." Paragraphs 14 to 24 and paragraph 39 then address this. These explanations are not contained in the record that was before the Officer.
23     The scope of the evidence admissible on an application for judicial review is restricted to the material that was before the decision maker. Additional evidence may only be submitted on issues of procedural fairness and jurisdiction (Tabanag v Canada (Minister of Citizenship and Immigration), 2011 FC 1293, [2011] F.C.J. No. 1575 (QL) [Tabanag]) at para 14. At para 15 ofTabanag, Justice Mosley states the following:

·       [15] The impugned evidence is not admissible in this proceeding to bolster the applicant's claim that he met the requirements of the NOC classification when he submitted his skilled worker application. In particular, the applicant may not rely on the assertions in the affidavits regarding his employment duties or the practice of employers in Manila to be shy of certifying such duties. The affidavit evidence is admissible solely for the limited purpose of supporting his argument that the manner in which his application was assessed was unfair. 
24     In this case the Applicant has referenced and relied heavily on his Affidavit to support his written submissions. However, I agree with the Respondent that paragraphs 13 to 24 and paragraph 39 are inadmissible as they do not speak to an issue of procedural fairness, but are intended to bolster the Applicant's claim of his compliance with the NOC. I also note that paragraphs 40 to 50 are comprised primarily of argument.
25     The Applicant also submits that the Officer did not assess, or reasonably assess, the duties he performed as against the NOC.
26     The TRG letter states that the Applicant was employed as a Project Manager in the Data Entry and Data Processing Department, from September, 2006 until February, 2009. It describes his responsibilities as the following:

·       * 
Project management of data entry and data processing projects at various locations; 
·       * 
Plan, direct and organize data entry and data processing projects; 
·       * 
Prepare policies and procedures for data entry and data processing projects; 
·       * 
Oversee and evaluate the data entry projects, assess the needs of clients and assure the fulfillment of the requirements; 
·       * 
Monitor the productivity of the team; 
·       * 
Meet with clients to discuss their needs on data entry projects and monitor the progress of the teams; 
·       * 
Work with information technology teams to discuss the hardware requirements of data entry projects and resolve issues; 
·       * 
Prepare invoices for projects in collaboration with the finance department; 
·       * 
Oversee the training of the team for data entry projects; 
·       * 
Recruit supervisors and data entry and processing teams in collaboration with the recruitment department; 
·       * 
Manage rotation of shifts; 
·       * 
Verify the quality of data provided by the teams. 
27     The GCMS Notes establish that the Officer referred to the TRG letter. The letter was the only evidence offered to substantiate that the Applicant met the occupational description, including the lead statement, contained in NOC 0213. In the absence of any further information, including any that could be derived from the main duties description, as to the actual nature of the position held by the Applicant and, given the Applicant's title at TRG, it was not unreasonable for the Officer to find that this did not substantiate that his position was one of a computer and information systems manager as described in the NOC 0213 lead statement which is a requirement of subsection 75(2)(b).
28     The description of the Applicant's responsibilities contained in the TRC letter place these, almost exclusively, in the context of data processing projects. This does not assist the Applicant in establishing that his position is one of a computer and information systems manager who plans, organizes, directs, controls and evaluates the activities of organizations that analyze, design, develop, implement, operate and administer computer and telecommunications software, networks and information systems.
29     The GCMS Notes also state that while the TRG letter describes the Applicant as a project manager, data entry and data processing department, no explanation is provided as to the essence of the projects in which he was involved. As noted above, by failing to describe the nature of those projects, the Applicant failed to provide sufficient information to the Officer to permit him to determine whether the position held by the Applicant met the lead description.
30     The Officer also noted that the TRG letter did not mention budgetary responsibilities or recruitment of IT analysts, engineers, or programmers. Instead, it referred only to the hiring of supervisors and data entry processing teams who appear to be employees and who are simply recording data in data bases. The Officer then stated that the job description provided appears to more closely resemble that of a Data Entry Supervisor as per NOC 1211. In view of this, the Officer was not satisfied that the Applicant had performed the duties specified in NOC 0213.
31     Given that the main responsibilities of the Applicant as set out in the TRG letter are limited to their performance in relation to data processing projects, absent an explanation of the nature of those projects, the Officer reasonably found that the Applicant had not met the onus of establishing that he had performed a substantial number of the required NOC 0213 main duties.
32     The Applicant argues that he was denied procedural farness because the Officer did not bring this concern to his attention. This issue was addressed by Justice Mosley in Hassani v Canada (Minister of Citizenship and Immigration), 2006 FC 1283, [2006] F.C.J. No. 1597 (QL) [Hassani] at para 24:

·       [24] Having reviewed the factual context of the cases cited above, it is clear that where a concern arises directly from the requirements of the legislation or related regulations, a visa officer will not be under a duty to provide an opportunity for the applicant to address his or her concerns. Where however the issue is not one that arises in this context, such a duty may arise. This is often the case where the credibility, accuracy or genuine nature of information submitted by the applicant in support of their application is the basis of the visa officer's concern, as was the case in Rukmangathan, and in John and Cornea cited by the Court in Rukmangathan, above. 
33     Here, the Applicant's credibility was not at issue and the Officer's concerns arose directly from the requirements of the IRPA and the IRPA Regulations. Specifically, whether the information submitted by the Applicant was sufficient to establish compliance with the legislative and regulatory requirements. Accordingly, the Officer was not under a duty to raise his concerns with the Applicant and the Applicant was not denied procedural fairness (Shah v Canada (Minister of Citizenship and Immigration), 2011 FC 697, [2011] F.C.J. No. 896 (QL) at paras 30-32; Gulati v Canada (Minister of Citizenship and Immigration), 2010 FC 451, [2010] F.C.J. No. 771 (QL) at para 43; Hosseini v Canada (Citizenship and Immigration), 2013 FC 766, [2013] F.C.J. No. 814 (QL) at para 38; Hassani, above).
34     The Applicant also submits that the reasons provided by the Officer in the Decision are inadequate.
35     The reference to the performance of the essential duties contained in the refusal letter was in error as NOC 0213 does not identify any essential duties. The letter also makes no reference to the determination found in the GCMS Notes that the submitted information was insufficient to establish that the Applicant met the occupational description. It also appears to suggest his application was directed occupations in addition to NOC 0213 when that was not the case.
36     It must be recalled that visa officers review and respond to thousands of similar applications. It is simply not feasible to expect detailed reasons to be issued in response to each application that is declined for processing. And as indicated earlier, officers utilize standard form letters with their reasons often supplemented in the GMCS Notes (Rezaeiazar, Ghirmatsion, Taleb, Anabtawi, all above).
37     Further, considerable deference is given to the decision of a visa officer assessing an application in the federal skilled worker class (Chen v Canada (Minister of Citizenship and Immigration), 2011 FC 1279, [2011] F.C.J. No. 1279 (QL) at para 7).
38     While the reasons are brief and to some degree inaccurate it must also be recalled that the decision under review in this case is an eligibility determination by a visa officer which falls on the lower end of the procedural fairness scale. As Justice Pinard states in Kamchibekov, above at para 23:

·       [23] Moreover, it has been confirmed by the Federal Court of Appeal in Minister of Citizenship and Immigration v. Patel, 2002 FCA 55 at para 10, that the content of the duty of fairness owed by a visa officer is at the lower end of the spectrum (see also Nodijeh at para 3; Dash v. Minister of Citizenship and Immigration, 2010 FC 1255 at para 27 [Dash]; Fargoodarzi v. Minister of Citizenship and Immigration, 2008 FC 90 at para 12 [Fargoodarzi]). Specifically, in the context of the decision of a visa officer on an application for permanent residence, the duty of fairness is quite low and easily met, "due to an absence of a legal right to permanent residence, the fact that the burden is on the applicant to establish [his] eligibility, the less serious the impact on the applicant that the decision typically has, compared with the removal of a benefit and the public interest in containing administrative costs" (Fargoodarzi at para 12). The applicant is not entitled to anything more than the visa officer mentioning the evidence on which his decision was based (Dash at para 29). 
39     Further, as to the sufficiency of reasons, in Dash v (Minister of Citizenship and Immigration), 2010 FC 1255, [2010] F.C.J. No. 1565 (QL), CAIPS Notes (the older version of the present GCMS notes) were relied upon for the purpose of supplementing the reasons in a refusal letter:

·       [27] I must disagree with the Applicant who finds these reasons to be inadequate. It is settled law that visa applicants are owed a degree of procedural fairness which falls at the low end of the spectrum (Pan v. Canada(Minister of Citizenship and Immigration), 2010 FC 838 at para. 26, Chiau v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 297, [2000] F.C.J. No. 2043 (QL) (C.A.) at para. 41). CAIPS notes have been held to constitute sufficient reasons if they provide detail sufficient enough to allow the applicant to know why their application was rejected (Bhandal v. Canada (Minister of Citizenship and Immigration), 2006 FC 427, 147 A.C.W.S. (3d) 474 at para. 18). 
40     The Applicant provided insufficient evidence as to the details of the data processing projects that he worked on (i.e. the "essence" projects) and, based on the details that were provided, it was unclear whether his job description really matched either the lead description or the main duties listed in NOC 0213. Thus, while the duties listed in the TGR letter appear to coincide with some of the NOC main duties, in the absence of clarity on the nature of the data processing projects and the Applicant's position as a data processing manager, the Officer reasonably concluded that there was insufficient information to confirm that the Applicant was a computer and information systems manger.
41     The reasons contained in the refusal letter are far from perfect and better use of the form letter certainly could and should have been made. However, ultimately, it does state that because the Applicant did not provide satisfactory evidence that he had the required work experience his application was not eligible for processing. The Applicant thus knew why his application was denied (Kamchibekov, above, at paras 19-24) and nothing further was required. There was no breach of procedural fairness and the Officer's decision was reasonable.
JUDGMENT
THIS COURT'S JUDGMENT is that the application for judicial review is dismissed. No question of general importance for certification has been proposed and none arises.
STRICKLAND J.
* * * * *
ANNEX
The following provisions of the Immigration and Refugee Protection Act, SC- 2001, c 27 are applicable in these proceedings:

·       Application

·       87.3 (1) This section applies to applications for visas or other documents made under subsection 11(1), other than those made by persons referred to in subsection 99(2), to sponsorship applications made by persons referred to in subsection 13(1), to applications for permanent resident status under subsection 21(1) or temporary resident status under subsection 22(1) made by foreign nationals in Canada, to applications for work or study permits and to requests under subsection 25(1) made by foreign nationals outside Canada. 

·       Attainment of immigration goals 

·       (2) 
The processing of applications and requests is to be conducted in a manner that, in the opinion of the Minister, will best support the attainment of the immigration goals established by the Government of Canada. 

·       Instructions 

·       (3) 
For the purposes of subsection (2), the Minister may give instructions with respect to the processing of applications and requests, including instructions 

·       (a) establishing categories of applications or requests to which the instructions apply; 

·       (a.1) establishing conditions, by category or otherwise, that must be met before or during the processing of an application or request; 

·       (b) establishing an order, by category or otherwise, for the processing of applications or requests; 

·       (c) setting the number of applications or requests, by category or otherwise, to be processed in any year; and 

·       (d) providing for the disposition of applications and requests, including those made subsequent to the first application or request. 

·       [...] 
* * *

·       Application

·       87.3 (1) Le présent article s'applique aux demandes de visa et autres documents visées au paragraphe 11(1) -- sauf à celle faite par la personne visée au paragraphe 99(2) --, aux demandes de parrainage faites par une personne visée au paragraphe 13(1), aux demandes de statut de résident permanent visées au paragraphe 21(1) ou de résident temporaire visées au paragraphe 22(1) faites par un étranger se trouvant au Canada, aux demandes de permis de travail ou d'études ainsi qu'aux demandes prévues au paragraphe 25(1) faites par un étranger se trouvant hors du Canada. 

·       Atteinte des objectifs d'immigration 

·       (2) 
Le traitement des demandes se fait de la manière qui, selon le ministre, est la plus susceptible d'aider l'atteinte des objectifs fixés pour l'immigration par le gouvernement fédéral. 

·       Instructions 

·       (3) 
Pour l'application du paragraphe (2), le ministre peut donner des instructions sur le traitement des demandes, notamment des instructions : 

·       a) prévoyant les groupes de demandes à l'égard desquels s'appliquent les instructions; 

·       a.1) prévoyant des conditions, notamment par groupe, à remplir en vue du traitement des demandes ou lors de celui-ci; 

·       b) prévoyant l'ordre de traitement des demandes, notamment par groupe; 

·       c) précisant le nombre de demandes à traiter par an, notamment par groupe; 

·       d) régissant la disposition des demandes dont celles faites de nouveau. 

·       [...] 
The following provisions of the Immigration and Refugee Protection Regulations, SOR/2002-227 are applicable in these proceedings:

·       Class

·       75. (1) For the purposes of subsection 12(2) of the Act, the federal skilled worker class is hereby prescribed as a class of persons who are skilled workers and who may become permanent residents on the basis of their ability to become economically established in Canada and who intend to reside in a province other than the Province of Quebec. 

·       Skilled workers

·       (2) 
A foreign national is a skilled worker if 

·       (a) within the 10 years preceding the date of their application for a permanent resident visa, they have at least one year of continuous full-time employment experience, as described in subsection 80(7), or the equivalent in continuous part-time employment in one or more occupations, other than a restricted occupation, that are listed in Skill Type 0 Management Occupations or Skill Level A or B of the National Occupational Classification matrix; 

·       (b) during that period of employment they performed the actions described in the lead statement for the occupation as set out in the occupational descriptions of the National Occupational Classification; and 

·       (c) during that period of employment they performed a substantial number of the main duties of the occupation as set out in the occupational descriptions of the National Occupational Classification, including all of the essential duties. 

·       [...] 
* * *

·       Catégorie

·       75. (1) Pour l'application du paragraphe 12(2) de la Loi, la catégorie des travailleurs qualifiés (fédéral) est une catégorie réglementaire de personnes qui peuvent devenir résidents permanents du fait de leur capacité à réussir leur établissement économique au Canada, qui sont des travailleurs qualifiés et qui cherchent à s'établir dans une province autre que le Québec. 

·       Qualité

·       (2) 
Est un travailleur qualifié l'étranger qui satisfait aux exigences suivantes : 

·       a) il a accumulé au moins une année continue d'expérience de travail à temps plein au sens du paragraphe 80(7), ou l'équivalent s'il travaille à temps partiel de façon continue, au cours des dix années qui ont précédé la date de présentation de la demande de visa de résident permanent, dans au moins une des professions appartenant aux genre de compétence 0 Gestion ou niveaux de compétences A ou B de la matrice de la Classification nationale des professions -- exception faite des professions d'accès limité; 

·       b) pendant cette période d'emploi, il a accompli l'ensemble des tâches figurant dans l'énoncé principal établi pour la profession dans les descriptions des professions de cette classification; 

·       c) pendant cette période d'emploi, il a exercé une partie appréciable des fonctions principales de la profession figurant dans les descriptions des professions de cette classification, notamment toutes les fonctions essentielles. 


·       [...] 
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