Docket No.: IMM-3041-01
Neutral Citation: 2002 FCT 935
Ottawa, Ontario, this 4th day of September, 2002
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
JOSEPH Di BIANCA,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER AND ORDER
1. The applicant, Joseph Di Bianca, seeks judicial review of the decision of a Visa Officer dated June 12, 2002, whereby the Visa Officer determined that the applicant was inadmissible because the applicant was convicted in the United States of "knowingly or intentionally possessing a controlled or counterfeit substance", namely cocaine. The Visa Officer determined that the equivalent criminal offence in Canada was paragraph 4.(3)(a) of the Controlled Drugs and Substances Act, 1996, c. 19. The equivalent offence is a dual character offence and is punishable by way of indictment and renders the offender liable for a term of imprisonment not exceeding seven years.
Facts
2. The applicant, Joseph Di Bianca, is an American citizen married to a Canadian citizen, Kelly Waxman, who sponsored the respondent. The sponsorship was approved by the respondent on April 12, 1973, and on March 7, 2001, a file was opened in the respondent's Buffalo Office.
3. On April 3, 2001, Mr. Di Bianca pled guilty in Pennsylvania of possession of cocaine and was placed on probation for one year. He was required to perform one hundred hours of community service and pay court costs.
4. In the refusal letter of June 12, 2001, the Visa Officer cited paragraph 19(1)(c.1) of the Immigration Act, R.S.C. 1985, c. I-2, as amended, as the grounds of inadmissibility with respect to the applicant's offence.
Issues
5. The respondent concedes that the Visa Officer erred by basing the refusal on paragraph 19(1)(c.1) as that section provides that a person is inadmissible if the offence is punishable "...by a maximum of ten years or more." and the equivalent offence found by the Visa Officer was punishable by a term of imprisonment not exceeding seven years.
6. The respondent, however, submits that the equivalent offence cited by the Visa Officer could render the applicant inadmissible, in any event, under paragraph 19(2) (a.1) of the Immigration Act, as the applicant has been convicted of an offence that "may" be punishable by way of indictment "...by a maximum term of imprisonment of less than ten years."
7. The following are the issues that remain to be determined in this application:
(i) Whether the error by the Visa Officer in referencing the wrong section of the Immigration Act is material and warrants the intervention of the Court?
(ii) Whether the Visa Officer erred in his determination as to which provision of the applicable Canadian statute should the Pennsylvania offence be equated to?
(iii) Whether the Visa Officer had a duty to act in accordance with subsection 3(c) of the Immigration Act?
Legislative framework
8. Subsection 3(c) and section 19 of the Immigration Act read as follows:
3. Immigration objectives - It is hereby declared that Canadian Immigration policy and the rules and regulations made under this Act shall be designed and administered in such a manner as to promote the domestic and international interest of Canada recognizing the need
3 Objectifs en matière d'immigration - La politique canadienne d'immigration ainsi que les règles et règlements pris en vertu de la présente loi visent, dans leur conception et leur mise en oeuvre, à promouvoir les intérêts du pays sur les plans intérieur et international et reconnaissent la nécessité_:
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(c) to facilitate the reunion in Canada of Canadian citizens and permanent residents with their close relatives from abroad;
c) de faciliter la réunion au Canada des citoyens canadiens et résidents permanents avec leurs proches parents de l'étranger;
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19. (1) No person shall be granted admission who is a member of any of the following classes:
19. (1) Les personnes suivantes appartiennent à une catégorie non admissible_:
(c.1) persons who there are reasonable grounds to believe
c.1) celles don't il y a des motifs raisonnables de croire qu'elles ont, à l'étranger_:
(i) have been convicted outside Canada of an offence that, if committed in Canada, would constitute an offence that may be punishable under any Act of Parliament by a maximum term of imprisonment of ten years or more, or
(i) soit été déclarées coupables d'une infraction qui, si elle était commise au Canada, constituerait une infraction qui pourrait être punissable, aux termes d'une loi fédérale, d'un emprisonnement maximal égal ou supérieur à dix ans, sauf si elles peuvent justifier auprès du ministre de leur réadaptation et du fait qu'au moins cinq ans se sont écoulés depuis l'expiration de toute peine leur ayant été infligée pour l'infraction,
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except persons who have satisfied the Minister that they have rehabilitated themselves and that at least five years have elapsed since the expiration of any sentence imposed for the offence or since the commission of the act or omission, as the case may be;
19(2) No immigrant and, except as provided in subsection (3), no visitor shall be granted admission if the immigrant or visitor is a member of any of the following classes:
19(2) Appartiennent à une catégorie non admissible les immigrants et, sous réserve du paragraphe (3), les visiteurs qui_:
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(a.1) persons who there are reasonable grounds to believe
a.1) sont des personnes don't il y a des motifs raisonnables de croire qu'elles ont, à l'étranger_:
(i) have been convicted outside Canada of an offence that, if committed in Canada, would constitute an offence that may be punishable by way of indictment under any Act of Parliament by a maximum term of imprisonment of less than ten years, or
(i) soit été déclarées coupables d'une infraction qui, si elle était commise au Canada, constituerait une infraction qui pourrait être punissable, aux termes d'une loi fédérale, par mise en accusation, d'un emprisonnement maximal de moins de dix ans, sauf si elles peuvent justifier auprès du ministre de leur réadaptation et du fait qu'au moins cinq ans se sont écoulés depuis l'expiration de toute peine leur ayant été infligée pour l'infraction,
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except persons who have satisfied the Minister that they have rehabilitated themselves and that at least five years have elapsed since the expiration of any sentence imposed for the offence or since the commission of the act or omission, as the case may be; (Emphasis added.)
(Je souligne.)
9. Section 4 of the Controlled Drugs and Substances Act reads as follows:
4. (1) Except as authorized under the regulations, no person shall possess a substance included in Schedule I, II or III.
4. (1) Sauf dans les cas autorisés aux termes des règlements, la possession de toute substance inscrite aux annexes I, II ou III est interdite.
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(3) Every person who contravenes subsection (1) where the subject-matter of the offence is a substance included in Schedule I
(3) Quiconque contrevient au paragraphe (1) commet, dans le cas de substances inscrites à l'annexe I_:
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding seven years; or
a) soit un acte criminel passible d'un emprisonnement maximal de sept ans;
(b) is guilty of an offence punishable on summary conviction and liable
b) soit une infraction punissable sur déclaration de culpabilité par procédure sommaire et passible_:
(i) for a first offence, to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding six months, or to both, and
(i) s'il s'agit d'une première infraction, d'une amende maximale de mille dollars et d'un emprisonnement maximal de six mois, ou de l'une de ces peines,
(ii) for a subsequent offence, to a fine not exceeding two thousand dollars or to imprisonment for a term not exceeding one year, or to both. (Emphasis added.)
(ii) en cas de récidive, d'une amende maximale de deux mille dollars et d'un emprisonnement maximal d'un an, ou de l'une de ces peines. (Je souligne.)
Analysis
10. Although the Visa Officer did reference the wrong section of the Immigration Act in his refusal letter I am of the view that this error, admitted to by the respondent, is not fatal to the Visa Officer's decision. It is useful to reproduce in part the Visa Officer's letter of June 12, 2001, refusing the applicant's application.
You are a member of the inadmissible class of persons described in section 19 (1) (c.1) of the Immigration Act, 1993 in that you have been convicted of the following offences in the United States of America:
Knowingly or intentionally possessing a controlled or counterfeit substance
This offence, if committed in Canada, would constitute an offence that may be punishable under section 4.(1) of the Controlled Drugs and Substances Act - "Possession of substance". This offence is punishable by way of indictment and renders the offender liable, upon conviction, to imprisonment for a term not exceeding seven years. The substance in question is Cocaine (benzoylmethylecgonine) which is described in Schedule 1 of the Controlled Drugs and Substances Act.
You were convicted in April 2001 of "Knowingly or intentionally possessing a controlled or counterfeit substance" under Article 780-113, para. 16 of the Unconsolidated Pennsylvania Statutes: Title 35; Health and Safety; Drugs, Poisons and Dangerous Substances Controlled Substance, Drug, Device and Cosmetic Act.
Your sentence, handed down to you on April 3rd 2001 was: one year probation, one hundred hours of community service and repayment of court costs in the amount of US$146.50.
You are not eligible for rehabilitation. Section 19 (1) (c.1) of Canada's Immigration Act exempts persons from this inadmissible class if they have satisfied the Governor in Council that they have rehabilitated themselves and that at least five years have elapsed since the termination of the sentence imposed for the offence. In your case however, you have not completed the original sentence that you were handed in the US, therefore I believe that you have not rehabilitated yourself and the requisite five year period has not elapsed. Therefore, you have not eligible for consideration.
11. The Visa Officer's letter is clear as to the reason he was found to be inadmissible. He was convicted in the United States of an offence, the equivalent of which in Canada would be punishable by a term not exceeding seven years. The only error committed by the Visa Officer was that he referred to paragraph 19(1)(c.1) instead of subparagraph19(2)(a.1)(i). In my view, in the circumstances of this case, this is not a reviewable error. By referring to the term "not exceeding seven years" it is apparent that the Visa Officer was intending to refer to subparagraph19(2)(a.1)(i). From a practical perspective, to return this decision for rehearing would most assuredly lead to another refusal letter with reference to the appropriate section of the Immigration Act. The applicant in his written submissions recognizes that "...just overturning the decision, however, would only lead to further litigation unless this Honourable Court rules whether equivalency pertains to subparagraph 19(2)(a.1)(i) or (b)(ii) of the Act." I agree with the applicant's argument and, consequently, will now deal with the equivalency issue.
12. The applicant contends that the applicant was convicted of a "misdemeanor-only" offence, and that the equivalent offence under the Controlled Drugs and Substances Act, would logically be a summary-only offence, notably paragraph 4.(3)(b) of the Act..
13. The respondent submits that the Act clearly designates equivalent offences that "MAY" be punishable by way of indictment and contends that the Visa Officer is under no duty to assume that the equivalent offence that might have been prosecuted in Canada would have been by way of summary conviction.
14. I am in agreement with the respondent's submissions. The Act clearly states that persons are inadmissible if the criminal offence committed outside Canada "may" be punishable by way of indictment. The Act clearly contemplates hybrid offences and in no way creates a duty to treat the offence as if it is not punishable by way of indictment.
15. My colleague, Mr. Justice Muldoon, in Ruparel v. Canada (Minister of Employment and Immigration) [1990] 3 F.C. 615, was of the same view. He made the following observations at paragraphs 12 and 17 of his reasons that are, in my view, applicable to this case:
Now it would seem highly unlikely that the Crown would have proceeded by way of indictment, if the applicant had committed the offence in Canada. Luckily, he seems to have caused no death, no personal injuries and no property damage. Nevertheless, it is the terms of paragraph 19(2)(a) which govern, as enacted.
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They do not speak of or exempt an offence which probably would have been charged as a summary conviction offence, nor yet of a hybrid offence which could possibly have been charged by indictment. On the contrary, in paragraph 19(2)(a) of the Act, Parliament most articulately and unambiguously speaks of "an offence that may be punishable by way of indictment under any other Act of Parliament" [emphasis added] and that emphasized expression includes, of course, an offence which may possibly not be punishable by way of indictment, but rather by way of summary conviction proceedings, as is found in section 253 of the Criminal Code. The essential elements of the respective offences correspond with each other: Brannson v. Minister of Employment and Immigration, [page 626] [1981] 2 F.C. 141 (C.A.) at pages 152-153.
16. In the case before me, I am of the opinion that the Visa Officer did not err in equating the offence for which the applicant was convicted in Pennsylvania to subsection 4.(3) of the Controlled Drugs and Substances Act. The Act is clear, the hybrid offence provides for punishment by way of indictment. This is sufficient for the purpose of subparagraph19(2)(a.1)(i) to deny admission to the applicant.
17. The applicant further argues that the Visa Officer erred by failing to consider, in the circumstances of this case, whether issuance of a minister's permit in accordance with s. 3 of the Immigration Act would be appropriate. The applicant contends that this provision read with the Supreme Court of Canada decision in Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 S.C.R. 817, imposes a duty on the Visa Officer to administer the Act in accordance with s. 3 and, by failing to balance the interest of Canadians to reside in Canada with their spouse with the duty to shield Canadians from harm, breached this duty.
18. I have carefully considered the applicant's submissions and argument on this issue and conclude that they are without merit. The applicant did not request that his case be considered for the issuance of a Minister's permit. Further, even if such an obligation existed on the Visa Officer, there was no evidence before the Visa Officer on the circumstances and the effect or consequences of a refusal on the applicant's family, i.e. his wife. In Soriano v. Canada (Minister of Citizenship and Immigration) (2000), 189 F.T.R. 104, this Court held that there is no duty on an Adjudicator to conduct an inquiry beyond the evidence presented. In any event, I cannot find, in the Baker case, authority for the proposition that there is a duty on a Visa Officer to consider whether a case is appropriate for the issuance of a Minister's permit when such a request has not been made.
19. I have also considered the submissions of both parties on the issue of costs and particularly the applicant's request for an award of significant legal fees. I have determined that in the circumstances of this case and in the exercise of my discretion that no costs be awarded.
20. For the above reasons this application for judicial review will be dismissed
21. The applicant proposed the certification of the following questions:
1. When equating a foreign conviction to the Canadian equivalent, does one seek the Canadian provision which most nearly equates to the foreign provision under which the conviction occurred à la Brannson; or does one look for the nearest Canadian provision relating to the offence giving rise to the foreign conviction? I[n] other words, does one equate the foreign provision with the closest Canadian provision or simply seek the closest Canadian provision relating to the offence committed abroad?
2. If, adopting the phrase Mr. Justice Nadon employed at ¶ 13 in Ngalla, the foreign provision is one "where no discretion is given to the Crown", to proceed by indictment; i.e., is a misdemeanour-only offence; and there is a Canadian provision which is a summary offence; i.e., s-s. 3(b) of the Controlled Drugs and Substances Act; is that provision the equivalent provision; or, if, under Canadian law, the offence is one where the Crown may elect to proceed by indictment or summary-conviction, may the foreign misdemeanour-only offence be properly equated to a hybrid-provision because the Canadian statute contains distinct provisions allowing the Crown to proceed by indictment or by summary-conviction?
3. In view of the Supreme Court's ruling in Mavis Baker that officers have a duty to conduct themselves in accordance with s-s. 3(c) of the Immigration Officer Act, thereby, paraphrasing from Mr. Justice Linden in Teresa, "changing the legal landscape [and] demand[ing] even more of them", do officers who determine that a sponsored spouse is inadmissible have a duty either to inform the applicant of that finding before closing the file and invite submissions for a minister's permit or to reflect on that issue even in the absence of a formal request for such considerations? In other words, does the duty of an officer to act in accordance with s. 3 of the Immigration Act arise only where applicants are astute enough and sufficiently well-versed in provisions of the Immigration Act to ask the officers to conduct themselves in accordance with the law providing their raison d'être and which they have sworn to honour and uphold?
22. I have carefully considered the written submissions of both parties on the above proposed questions for certification. I conclude that the applicant has not raised a serious question of general importance that would be dispositive of the case as contemplated by section 83 of the Immigration Act. I do not propose to certify a question.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review is dismissed.
"Edmond P. Blanchard"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3041-01
STYLE OF CAUSE: Joseph Di Bianca v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: May 7, 2002
REASONS FOR ORDER AND ORDER: BLANCHARD J.
DATED: September 4, 2002
APPEARANCES:
Timothy E. Leahy FOR PLAINTIFF / APPLICANT
Jamie Todd FOR DEFENDANT/ RESPONDENT
SOLICITORS OF RECORD:
Timothy E. Leahy FOR PLAINTIFF/APPLICANT
5734 Yonge Street - Suite 509
Toronto, Ontario M2M 4E7
Morris Rosenberg FOR DEFENDANT/RESPONDENT
Deputy Attorney General of Canada
Department of Justice
2 First Canadian Place
Suite 2400, Box 36
Exchange Tower
Toronto, Ontario M5X 1K6