FEDERAL COURT OF APPEAL RULES ON CRIMINAL INADMISSIBILITY

The Federal Court of Appeal has ruled that the consideration of criminal equivalence for the purposes of inadmissibility must take into account the punishment for the offence in Canada a the time of decision, not at the time of commission of the offence abroad.

Sanchez v. Canada (Minister of Citizenship and Immigration)

Between
Noe Gama Sanchez, Appellant, and
The Minister of Citizenship and Immigration, Respondent

[2014] F.C.J. No. 635

2014 FCA 157

Docket: A-315-13

 Federal Court of Appeal
Vancouver, British Columbia

Nadon, Stratas and Scott JJ.A.

Heard: June 10, 2014.
Oral judgment: June 10, 2014.

(10 paras.)

Immigration law -- Exclusion (Inadmissible persons) -- Grounds for inadmissibility -- Criminality -- Inadmissibility findings -- Judicial review -- Appeal by Sanchez from dismissal of application for judicial review dismissed -- Appellant was found inadmissible to Canada due to serious non-political criminality -- At issue was whether seriousness of crime should be assessed at time of commission, or at time of Refugee Protection Division's determination of exclusion given subsequent increase in likely sentence in Canada -- Court of Appeal answered certified question, stating where a change to penalty for Canadian equivalent offence occurred, assessment of seriousness should be undertaken when Refugee Protection Division considered issue of exclusion.

Statutes, Regulations and Rules Cited:

United Nations Convention Relating to the Status of Refugees, Article 1F(b)

Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 98

Appeal From:

Appeal from a judgment of the Federal Court (The Honourable Mr. Justice Russell) dated August 29, 2013, Docket No. IMM-11894-12.

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REASONS FOR JUDGMENT OF THE COURT

The judgment of the Court was delivered by

1     STRATAS J.A. (orally):-- This is an appeal from the judgment of the Federal Court (per Justice Russell) dated August 29, 2013: 2013 FC 913. The Federal Court dismissed the appellant's application for judicial review from the Refugee Protection Division's decision dated October 30, 2012.

2     In its decision, the Refugee Protection Division found that the Applicant had committed a "serious non-political crime" outside Canada and, thus, was excluded from refugee protection pursuant to Article 1F(b) of the United Nations Convention Relating to the Status of Refugees and section 98 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.

3     The central issue before the Federal Court was when the seriousness of the crime under article 1F(b) of the Convention should be assessed. Should it be assessed at the time of the commission of the crime or at the time of the Refugee Protection Division's determination? The Federal Court concluded that the relevant time for assessment is the time of determination.

4     One factor to be assessed when considering the seriousness of the crime is to examine the penalty in Canada for an equivalent crime. In this case, at the time of the Division's determination, the penalty in Canada for the equivalent crime was much higher than it was at the time the appellant committed the crime abroad.

5     On this point, we substantially agree with the Federal Court's reasons and conclusion at paragraphs 59-62 of its reasons.

6     In assessing the seriousness of the crime, the Refugee Protection Division must consider all relevant considerations pertaining to the factors set out in Jayasekara v. Canada (Minister of Citizenship and Immigration), 2008 FCA 404, [2009] 4 F.C.R.164 at paragraph 44. In assessing the penalty for the equivalent crime under Canadian law, the Refugee Protection Division cannot close its eyes to the law that is on the books at the time of its determination.

7     The appellant submitted that this Court in Febles v. Canada (Minister of Citizenship and Immigration), 2012 FCA 324 at paragraph 52 held that the seriousness of the crime should be assessed at the time of commission. But in making that comment, this Court was responding to the submission that the offender's later rehabilitation could affect the assessment of the seriousness of the crime. This Court did not deal with the question before us, which is the relevance of a later change in the penalty for the equivalent crime in Canada.

8     The appellant accepts that if the Federal Court's decision on this point is correct, the decision of the Refugee Protection Division was reasonable.

9     Accordingly, despite the able submissions of counsel for the appellant, we will dismiss the appeal. We will answer the certified question as follows:

·        Question: When assessing the Canadian equivalent of a foreign offence in the context of exclusion under Article 1F(b) of the Convention Relating to the Status of Refugees and the Jayasekara factors, should the Refugee Protection Division Member assess the seriousness of the crime at issue at the time of commission of the crime or, if a change to the Canadian equivalent has occurred in the interim, at the time when the exclusion is being determined by the Refugee Protection Division? 

·        Answer: If a change to the penalty for the Canadian equivalent offence has occurred, the assessment should be done at the time when the Refugee Protection Division is determining the issue of the section 1F(b) exclusion. 

10     There are no special reasons for an award of costs in this case and so there will be no award of costs.

STRATAS J.A.