Ottawa, Ontario, December 29, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
GEORGE PERCIVAL FERGUSON
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. George Ferguson, a citizen of Jamaica, came to Canada from the United Statesin 1998. On November 22, 2004, a report was issued under s. 44(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA" or the "Act") alleging that Mr. Ferguson was inadmissible under s. 36(1)(b) of the Act. The report, and a second report that was subsequently withdrawn, were referred for admissibility hearings before a member of the Immigration Division of the Immigration and Refugee Board (the "Board").
[2] The incident that gave rise to Mr. Ferguson's conviction began with his purchase of a used car in February, 1997. He was issued a temporary permit that indicated the purchase date. Mr. Ferguson was required to have the car inspected within a certain number of days after purchase, which he did not do, and the car salesman subsequently altered the sticker to reflect a later purchase date. Mr. Ferguson was arrested in New York State on March 8, 1997. He pled guilty to and was convicted of Criminal Possession of a Forged Instrument in the Third Degree, pursuant to s. 170.20 of the New York State Penal Law.
[3] Admissibility hearings were held on April 26 and June 1, 2005. In the reasons for its decision, delivered orally on June 1, 2005, the Board concluded that Mr. Ferguson had been convicted of an offence in New York which, if it had been committed in Canada, would constitute an offence under the Criminal Code of Canada, R.S., c. C-34 punishable by a maximum term of ten years.
[4] As a result of this determination, on June 1, 2005, a Deportation Order was issued by the Board stating that:
On the basis of the evidence adduced at the admissibility hearing held pursuant to the Immigration and Refugee Protection Act (the "Act"), the Immigration Division determines that you are a person described in 36(1)(b) of the Act.
Pursuant to paragraph 45(d) of the Act and the Immigration and Refugee Protection Regulations (the "Regulations"), the Immigration Division therefore orders that you be deported.
[5] Mr. Ferguson seeks judicial review of the Deportation Order.
Issues
[6] The sole issue in this application is as follows:
1. Did the Board err by finding that Mr. Ferguson had been convicted of an offence that, if committed in Canada, would constitute an offence under subsection 368(1) of the Criminal Code of Canada?
Statutory Framework
[7] Subsection 36(1) of IRPA provides that a foreign national is inadmissible to Canada on grounds of "serious criminality":
| 36. (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for (a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed; (b) having been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; or (c) committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years.
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36. (1) Emportent interdiction de territoire pour grande criminalité les faits suivants :
a) être déclaré coupable au Canada d'une infraction à une loi fédérale punissable d'un emprisonnement maximal d'au moins dix ans ou d'une infraction à une loi fédérale pour laquelle un emprisonnement de plus de six mois est infligé; b) être déclaré coupable, à l'extérieur du Canada, d'une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable d'un emprisonnement maximal d'au moins dix ans; c) commettre, à l'extérieur du Canada, une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable d'un emprisonnement maximal d'au moins dix ans.
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[8] For each of the scenarios in (b) and (c), the immigration officer, who interviews the foreign national at the port of entry, and the Board, in the admissibility hearing provided for in IRPA, must determine whether the offence outside Canada is equivalent to an offence in Canada. In this case, the officer and the Board were required to compare section 170.20 of the New York State Code to subsection 368(1) of the Criminal Code of Canada. These provisions are as follows:
New YorkState Code
Chapter 40 of the Consolidated Laws - Penal law
S. 170.20 Criminal possession of a forged instrument in the third degree. A person is guilty of criminal possession of a forged instrument in the third degree when, with knowledge that it is forged and with intent to defraud, deceive or injure another, he utters or possesses a forged instrument. Criminal possession of a forged instrument in the third degree is a class A misdemeanor.
| Criminal Code of Canada 368. (1) Every one who, knowing that a document is forged, (a) uses, deals with or acts on it, or (b) causes or attempts to cause any person to use, deal with or act on it, as if the document were genuine, (c) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years; or (d) is guilty of an offence punishable on summary conviction.
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Code criminel du Canada 368. (1) Quiconque, sachant qu'un document est contrefait, selon le cas : a) s'en sert, le traite, ou agit à son égard; b) fait, ou tente de faire, accomplir l'un des actes visés à l'alinéa a), comme si le document était authentique, est coupable : c) soit d'un acte criminel et passible d'un emprisonnement maximal de dix ans; d) soit d'une infraction punissable sur déclaration de culpabilité par procédure sommaire.
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[9] Pursuant to section 33 of IRPA, the facts that constitute the inadmissibility "include facts for which there are reasonable grounds to believe that they have occurred".
Analysis
Standard of Review
[10] The issue before me relates to findings of fact made by the Board. In assessing equivalency, the Board was required to determine the underlying facts of a foreign criminal conviction. The only point of difference between the parties is whether the Board properly found that the Applicant had "uttered" the forged vehicle permit, giving rise to his conviction in New York.
[11] The Federal Court of Appeal suggested in Thanaratnam v. Canada (Minister of Citizenship and Immigration), 2005 FCA 122 (see also Dhanani v. Canada(Minister of Citizenship and Immigration), 2005 FC 169 (F.C.) at para. 22 ), that a standard of patent unreasonableness should apply to a decision of the Board regarding equivalency. A Board's findings of fact should not be disturbed unless patently unreasonable. Accordingly, this Court should only intervene if the Board's conclusion that there were "reasonable grounds to believe" the Applicant had uttered the forged permit was patently unreasonable.
Did the Board err?
[12] The comparison of subsection 368(1) of the Criminal Code and section 170.20 of the New York Penal Law requires an understanding of the term "uttering" as used in the Criminal Code. "Uttering" with respect to a false document means, according to subsection 368(1) of the Criminal Code, "using, dealing with, or acting upon the document, or causing another to do so, as if it were genuine." In this case, the Applicant does not dispute that the temporary permit affixed to his windshield was forged. Thus, the question before the Board was this: does the evidence demonstrate that the Applicant was convicted, under section 170.20 of the New York laws, of using or dealing with, or acting upon this forged temporary permit? If the answer is affirmative, it follows that his offence would constitute an offence under the Criminal Code.
[13] While subsection 368(1) of the Criminal Code refers only to the offence of uttering, the applicable New York law sets out that the offence can be for possession of a false document or for uttering. The essence of Mr. Ferguson's argument is that the evidence is that he was convicted only of possession and not of both possession and uttering. In support of this argument, the Applicant refers to the "Certificate of Disposition" that states the following:
UPON A PLEA OF GUILTY TO THE REDUCED CHARGE OF CRM POSS FORG INSTR 3RD - 170.20 AND AGG UNLIC OPER - 511.1A IN FULL SATISFACTION . . . [Emphasis added.]
[14] The Applicant argues that this reference in the Disposition to only the possession of a forged instrument is incontrovertible proof that he was convicted only of possession and not of uttering. I do not agree.
[15] A review of the "Forgery and Related Offenses" of the New York Penal Law shows that the provisions are set up in a standard manner. Each offence begins with a heading or title. Other sections, for example, include provisions with the titles of "Forgery in the first degree", "Criminal simulation", and "Unlawfully using slugs in the first degree". Following the title, for each, is a description of the elements of the offence. Thus, when the Disposition refers to "CRM POSS INSTR 3RD - 170.20", it is simply setting out the title or heading of the applicable section of the New York Penal Law. Without an examination of the surrounding documentation, it is impossible to tell, from the Disposition alone, the elements of the offence of the Applicant. Whether his offence was one of uttering, possession or both can only be determined by reviewing other documents.
[16] Helpfully for the Board, other evidence did form part of the record. Statements in both the felony complaint and the pre-sentence report provide the facts which formed the basis of the conviction. The statement in the felony report includes the following description of the alleged offence:
To wit: The defendant(s) at the above date, time and place, did with knowledge that it is forged and with the intent to defraud, deceive or injure another, he utters or possesses a forged instrument namely the defendant did possess a forged New Jersey Temporary non-resident registration and did provide police with the same in an effort to deceive them. [Emphasis added.]
[17] In the pre-sentence report prepared after the guilty plea, the offence was described as follows:
On March 8, 1997 at 5:40 P.M. . . . the defendant possessed a forged New Jersey Temporary non-resident registration and tried to deceive the police. [Emphasis added.]
[18] Both of these reports indicate that the Applicant committed both offences referred to in the applicable section of the New York Penal Law.
[19] Contrary to the submission of the Applicant, the Board was entitled to rely upon these documents to find that the Applicant had uttered the forged document (Thanaratnam v. Canada (Minister of Citizenship and Immigration), 2004 FC 349 (F.C.), reversed on other grounds, 2005 FCA 122; Legault v. Canada (Secretary of State) (1997), 42 Imm. L.R. (2d) 192 (F.C.A.) at para. 10). Although the Applicant argues that the indictment report is written by the prosecutor, prior to a trial or guilty pleading, the pre-sentence report is written after the guilty plea. In my view, the facts of the crime would be established when the guilty plea was made. It follows that the pre-sentence report is credible evidence of the facts underlying the crime.
[20] In sum, there was evidence upon which to find "reasonable grounds to believe" that the Applicant uttered the forged permit, particularly in the absence of any evidence to the contrary. The Board member's conclusion was supported by the evidence and should not be disturbed.
[21] If convicted of uttering a forged document, under subsection 368(1) of the Criminal Code, the Applicant would have faced a maximum sentence of ten years. The requirements of paragraph 36(1)(b) are met and, pursuant to subsection 36(1) of IRPA, the Applicant is inadmissible to Canada on grounds of serious criminality. The Deportation Order was properly issued.
Conclusion
[22] For these reasons, the application for judicial review will be dismissed. Neither party proposed a question for certification.
ORDER
This Court orders that:
1. The application is dismissed; and
2. No question of general importance is certified.
"Judith A. Snider"
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3657-05
STYLE OF CAUSE: GEORGE PERCIVAL FERGUSON v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: December 8, 2005
APPEARANCES:
| Ms. Ahlam Balazs
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| Mr. Rick Garvin
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SOLICITORS OF RECORD:
| Ahlam J. Balazs Edmonton, Alberta
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| John H. Sims, Q.C. Deputy Attorney General of Canada Ottawa, Ontario |