Date: 19990311
Docket: IMM-4050-98
BETWEEN:
MICHAEL LAWRENCE DRAKE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TREMBLAY-LAMER J.:
[1] This is an application for judicial review of a decision of the Immigration Appeal Division quashing the removal order issued against the Applicant on February 16, 1994 and ordering that the Applicant be deported from Canada pursuant to paragraph 74(1)(a) for being a person described in subparagraph 27(1)(a.1)(ii) of the Immigration Act (the Act).1
[2] The parties agree on the facts.
[3] The Applicant was born in the United States on June 2, 1969. He became a permanent resident of Canada on October 6, 1969. In 1990, he moved to Bellingham, U.S. On March 6, 1992, he was arrested in Bellingham on a charge of child molestation in the first degree. He pleaded not guilty on March 13, 1992. The trial was set for June 1, 1992.
[4] On April 17, 1992, the Applicant returned to Canada. He was admitted as a returning resident. In September 1992, he was tried and convicted in absentia by a jury of child molestation in the first degree.
[5] On November 18, 1993, a direction for inquiry was issued pursuant to section 27 of the Act. The inquiry was opened on November 22, 1993 and concluded on February 16, 1994. The Respondent first submitted that Mr. Drake was a person described in subparagraph 27(1)(a.1)(i), that is a permanent resident who has been convicted outside of Canada of an offence that, if committed in Canada, would constitute an offence that may be punishable under an Act of Parliament by a maximum of 10 years imprisonment. In the alternative, the Respondent alleged that Mr. Drake was a person described in subparagraph 27(1)(a.1)(ii), that is, a permanent resident who, on the balance of probabilities, has committed an act which would constitute an offence under the laws of the place where it was committed, and that, if committed in Canada, would constitute an offence punishable by a maximum term of 10 years imprisonment.
[6] The Adjudicator found that the Applicant was a person described by subparagraph 27(1)(a.1)(i) and issued a removal order. She did not make a finding on the 27(1)(a.1)(ii) allegation. The Applicant filed an appeal of the removal order on the same day. The appeal was set to be heard on December 5, 1994.
[7] U.S. authorities commenced extradition proceedings against the Applicant in late 1994. On December 1, 1994, the Applicant entered into a Letter of Intent and Extradition and Plea Agreement with U.S. authorities under which it was agreed that the Applicant would surrender himself to the custody of U.S. officials and move to set aside the jury verdict and enter an Alford plea to the crime of child molestation in the first degree. He was also required to plead guilty to the charge of bail jumping.
[8] On December 8, 1994, a Judge of the Whatcom County Superior Court ordered that the jury verdict "be vacated as being void ab initio and for all purposes that the verdict be held for naught" in that it was arrived in absentia . On the same day, the Applicant plead guilty in Washington State to the charges on which the earlier conviction was based, and was sentenced to a term of imprisonment of 68 months. He will be released in December 2001.
[9] The Applicant"s section 70 appeal set for December 5, 1994 was postponed. It resumed in 1998. Written submissions for the appeal were filed with the Appeal Division in May 1998. The Applicant argued that the removal order should be quashed, since the conviction, upon which the order had been based, was declared void ab initio . The Respondent replied that the Appeal Division could make another removal order based on his guilty plea of December 8, 1994. He also observed that the Appeal Division could order the deportation of Mr. Drake on the second allegation at the inquiry, which had not been ruled upon.
[10] The Appeal Division member, Ms. Clark, quashed the first removal order since the underlying conviction had been declared void. She found however, that on December 8, 1994, the Applicant confessed he committed the offence at the time he entered into his plea agreement and signed the Statement of Defendant on Plea of Guilty. This confession confirmed the evidence before the Adjudicator at the inquiry, and confirmed that the acts committed by the Applicant constituted an offence in the place where they occurred.
[11] Thus, there was proof before the inquiry that the Applicant was a person described in subparagraph 27(1)(a.1)(ii) of the Act. He was a permanent resident. He committed an act in the State of Washington that constituted an offence under the laws of that State, and which, if committed in Canada would constitute the indictable offence of sexual interference with a child under the age of 14 years. This is an offence under section 151 of the Criminal Code1, punishable by a maximum of 10 years imprisonment. There was no evidence that he was rehabilitated or that 5 years had elapsed since the expiration of any sentence imposed for the offence. Therefore, using her power under paragraph 74(1)(a) of the Act, which allows her to issue any other removal order that should have been made, she issued a deportation order against the defendant for his conviction of December 8, 1994.
[12] The Applicant"s main submission is that he was not properly informed of the nature of the proceedings before the Appeal Division and was not provided a full opportunity to be heard. He thought the appeal was to determine whether the Appeal Division had the power to make a removal order under subparagraph 27(1)(a.1)(ii) of the Act . He was not informed that they would then proceed and make a finding on the question whether the Applicant was a person described in the subsection. I disagree. In my opinion, there was no breach of natural justice in this case. The Applicant received proper notice and was provided an opportunity to be heard.
[13] The allegations under subparagraph 27(1)(a.1)(ii) were made prior to the Adjudicator"s inquiry. Evidence was presented to the Adjudicator which went to the allegation under subparagraph 27(1)(a.1)(ii), such as witness statements and a doctor"s report. These allegations were never abandoned.
[14] When the Applicant brought a motion to have the first removal order quashed in 1995, the Respondent informed him that the second allegation in the inquiry had not been ruled on and would still be at issue in the appeal. On February 6, 1998, the Respondent filed a summary of the arguments it planned to present before the Appeal Division. In it, the Respondent confirms that it plans to discuss the December 8, 1994 conviction. Further, in its submission dated May 6, 1998 presented to the Appeal Division, the Respondent indicates that:
| Mr. Drake has been aware of the allegations against him and has a full opportunity to respond to any evidence that would be forthcoming against him.1 |
[15] Therefore, nothing precluded the Applicant from presenting evidence and making submissions. He elected not to do so.
[16] Secondly, the Applicant argues that the Appeal Division made a decision based on an erroneous finding of fact when it found that he had confessed to the crime in question. Rather, the Applicant entered an Alford plea, which is not a confession.
[17] The Applicant handwrote in his Statement of Defendant on Plea of Guilty, at page 6:
| I am compelled to maintain my innocence, but after conferring with counsel, I recognize that the likelihood of conviction is high because of the nature of the prosecution"s case and evidence; therefore, I believe it to be in my best interest to take advantage of the plea bargain offer by entering this type of guilty plea in spite of my assertion of the truth of my innocence, as provided in North Carolina v. Alford, 400 US 25, 91 S.Ct. 160, 27 L.Ed. 2d 162 (1970). The court may review the Certificate for Determination of Probable Cause to determine whether there is a factual basis upon which to accept this plea.1 |
[18] Subparagraph 27(1)(a.1)(ii) only requires on the balance of probabilities that the person has committed an offence abroad. Mr. Drake entered an Alford plea because the risk of conviction was high, considering the evidence the prosecution had acquired. In my view, no error was committed in relying on the Alford plea to find that, on the balance of probabilities, Mr. Drake had committed the offence.
[19] For these reasons, the application for judicial review is dismissed.
(Sgd.) "Daniele Tremblay-Lamer"
JUDGE
VANCOUVER, BRITISH COLUMBIA
March 11, 1999
[20] FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-4050-98
STYLE OF CAUSE: MICHAEL LAWRENCE DRAKE
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
| PLACE OF HEARING: Vancouver, British Columbia |
| DATE OF HEARING: March 10, 1999 |
REASONS FOR ORDER OF TREMBLAY-LAMER J.
DATED: March 11, 1999
APPEARANCES:
| Mr. Rod Holloway for the Applicant |
Ms. Sandra Weafer for the Respondent
SOLICITORS OF RECORD:
| Legal Services Society for the Applicant |
Vancouver, B.C.
| Mr. Morris Rosenberg for the Respondent |
Deputy Attorney General
of Canada
__________________
3. Affidavit of Lisa Marie Sturgess (sworn 9 September 1998) Exhibit "G" para 6.
4. Applicant"s Record, at 36 (Tab 4C).