P3

 

Date: 20121003

Docket: IMM-2440-12

Citation: 2012 FC 1166

[UNREVISED ENGLISH CERTIFIED TRANSLATION]

Ottawa, Ontario, October 3, 2012

PRESENT: The Honourable Madam Justice Gagné

BETWEEN:

	DOMINIQUE LINISE
		Applicant
	and
	THE MINISTER OF CITIZENSHIP AND IMMIGRATION
		Respondent

 

 

         REASONS FOR JUDGMENT AND JUDGMENT

 

[1]               This is an application for judicial review of a decision of the Immigration Division of the Immigration and Refugee Board [ID], dated February 24, 2012, by which the applicant was determined to be inadmissible to Canada pursuant to paragraph 36(2)(d) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA], for committing an offence under section 159 of the Customs Act, RSC, 1985, c 1 (2nd Supp) [CA].

 

 

 

Background

[2]               The applicant, Dominique Linise, is a French citizen of Martinican origin. Since 2006, he has been living in Canada as a temporary resident with a renewable study permit.

 

[3]               On August 23, 2011, when the applicant was returning to Canada after a trip to Martinique, a customs officer at Montréal–Pierre Elliot Trudeau International Airport found a pipe containing 0.001 grams of cannabis residue in his luggage, along with a small bag containing 0.5 grams of cannabis, essentially in the form of seeds (the evidence in the record does not indicate whether or not the seeds were sterile). These quantities are stated in the assessment report made by the Canada Border Services Agency that same day.

 

[4]               Although police authorities were notified, no criminal charges were laid against the applicant. However, a report on inadmissibility was made, and the applicant’s file was referred to the ID in accordance with section 44 of the IRPA.

 

[5]               A hearing was held before the ID on February 24, 2012. At the conclusion of that hearing, the applicant was determined to be inadmissible, and a removal order was made against him.

 

[6]               Before considering the reasons for the impugned decision, a review of the relevant statutory provisions is required.

 

 

Relevant statutory provisions

[7]               One of the grounds for inadmissibility for criminality is set out at paragraph 36(2)(d) of the IRPA:

                        (emphasis added)

[8]               An offence such as this one, among others, may trigger the removal process provided for at section 44 of the IRPA on the basis of a determination of inadmissibility:

[9]               For the purposes of paragraph 36(2)(d) of the IRPA, the Customs Act, RSC, 1985, c 1 (2nd Supp) [CA], and the Controlled Drugs and Substances Act, SC 1996, c 19 [CDSA], are listed or prescribed in the Immigration and Refugee Protection Regulations (SOR/2002-227).

 

[10]           However, the ID bases its decision on the CA. Section 159 of the CA creates the offence that the applicant allegedly committed, which offence may lead to criminal proceedings and is punishable by the penalties provided for at section 160:

                        (emphasis added)

 

[11]           However, the importation of cannabis is prohibited under the CDSA. Sections 4 and 6 of the CDSA make it a criminal offence to possess, import or export certain substances listed in the schedules to that act:

                        (emphasis added)

 

[12]           Cannabis resin and cannabis (marihuana) are substances included in Schedule II to the CDSA. Sterile cannabis seeds are excluded, but the derivatives of such seeds are not.

 

Decision under review

[13]           Before the ID, the Minister of Public Safety and Emergency Preparedness [MPSEP] argued that the applicant had committed a criminal offence under section 159 of the CA, the prohibited good being cannabis, the importation of which is prohibited under section 6 of the CDSA. It should be noted that unlike section 4, which prohibits possession, section 6 of the CDSA does not set out any minimum amounts of illegal substances for the purposes of importing.

 

[14]           According to the evidence, the applicant regularly uses cannabis for medical reasons, to treat his epilepsy. He filed a certificate from his doctor, who has been treating him since 2007 and prescribed him cannabis for this purpose. The applicant is a member of the Centre compassion de Montréal, which describes itself as a medical cannabis dispensary. The applicant states that he made sure to empty out the contents of his pipe and his small bag before leaving Martinique because he had previously been advised by a customs officer that he was not allowed to travel in Canada with cannabis.

 

[15]           The ID found that the applicant’s testimony was credible.

 

[16]           However, for the purposes of section 159 of the CA, the ID held that the applicant was responsible for the materials he was carrying in his luggage even though the cannabis was left in there out of negligence or carelessness.

 

[17]           The ID noted that cannabis, even in the form of viable seeds, is a drug included in Schedule II to the CDSA, such that its importation is prohibited.

 

[18]           The ID rejected the applicant’s argument to the effect that he could raise the defence of de minimis non curat lex because the amount of cannabis found in his suitcase upon his arrival in Montréal was minimal. In the opinion of the ID, Parliament did not temper the offence of importing drugs or other illicit substances, as neither section 6 of the CDSA nor section 159 of the CA sets out minimum amounts. Moreover, this is a criminal law defence that is not recognized in administrative law, where the burden of proof and the penalties are very different.

 

[19]           The ID found that there were reasonable grounds to believe that an offence had been committed under section 159 of the CA and therefore ordered that the applicant be deported.

 

Issues

[20]           In light of the parties’ written and oral submissions, this application for judicial review raises the following issues:

1)      The standard(s) of review applicable to the ID’s decision.

2)      Whether the impugned decision is correct or reasonable, as the case may be.

 

Applicable standard of review

[21]           The applicant submits that the ID’s interpretation of section 159 of the CA must be reviewed on a standard of correctness, since the CA is not a statute of which the ID has specialized knowledge or which is [translation] “closely connected” to the ID’s function. Relying on the judgments of this Court in Mohammad c Canada (Minister of Citizenship and Immigration), 2010 FC 51 at paras 48-51, [2010] FCJ 50 [Mohammad] and Rizwan v Canada (Minister of Citizenship and Immigration), 2010 FC 781 at para 31, [2010] FCJ 957 [Rizwan], he submits that this is essentially a question of law. He adds that the question of whether there are reasonable grounds to believe (within the meaning of section 33 of the IRPA) that an offence under an Act of Parliament prescribed by regulations has been committed is a question of mixed fact and law, which is reviewable on a standard of reasonableness.

 

[22]           Before we can address the first issue raised in this application for judicial review, a clarification is in order. Since the ID found that the applicant’s testimony was credible, there was no need to emphasize the burden of proof required under section 33 of the IRPA when analyzing the facts, acts or omissions set out in section 34 to 37. The real issue before the ID was whether or not the applicant had committed the cross-border offence provided for in section 159 of the CA. In other words, the ID had to determine whether the facts, as adduced and without dispute, proved the elements of this offence.

 

[23]           As Justice O’Keefe notes in Mohammad, what constitutes an act of terrorism within the meaning of paragraph 34(1)(c) of the IRPA is a question of law reviewable on the correctness standard, but the reasonableness standard applies to the factual component of the decision:

It bears noting that applying the standard of reasonableness in these cases involves an added wrinkle, for the legislation itself contains the qualification that there need only be “reasonable grounds to believe”. Therefore, to require on review that those reasonable grounds to believe did in fact exist, would be to apply a correctness standard. Applying the reasonableness standard means the Court does not need to satisfy itself that reasonable ground to believe existed, only that the officer’s conclusion that there were reasonable grounds to believe, was a reasonable conclusion on his or her part.

 

The “reasonable grounds to believe” standard mandated by section 33 of the Act has been held to require more than mere suspicision [sic], but less than the civil standard of or proof on a balance of probabilities. It is a bona fide belief in a serious possibility based on credible evidence (see Jalil 2006 at paragraph 27).

 

The “reasonable grounds to believe” standard however does not apply to an officer’s determination of law (see Mugesera v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 100, [2005] S.C.J. No. 39 (QL) at paragraph 116). What constitutes an act of terrorism is a matter of law. While the officer need only to have had reasonable grounds to believe that an act occurred, and may make findings of fact regarding the purposes behind the act, his determination that the act was an act of terrorism must be correct.

 

 

[24]           Similarly, in Rizwan, Justice Mosley held that the immigration officer had to use the correct interpretation of “terrorism”, as defined by the Supreme Court in Suresh v Canada (Minister of Citizenship and Immigration), 2002 SCC 1 at para 98, [2002] 1 SCR 3, when applying paragraph 34(1)f) of the IRPA.

 

[25]           The respondent supports the ID’s decision as a whole, which in his view is reviewable on the reasonableness standard. He submits that the MPSEP is responsible for applying both the IRPA and the CA, which suggests that they have some authority over the application of these two statutes. The respondent also argues that because the ID has jurisdiction to apply section 159 of the CA in accordance with the burden of proof set out in section 33 of the IRPA, it has a sufficiently specialized knowledge of the matter.

 

[26]           Finally, the respondent notes that the inadmissibility provisions of the IRPA, namely, sections 34 to 37, generally require knowledge of other laws to determine whether a person is inadmissible. On this point, the respondent relies on Sayer v Canada (Minister of Citizenship and Immigration), 2011 FC 144 at paras 4-5, [2011] FCJ 352, in which it was held that, for the purposes of applying paragraph 36(2)(b) of the IRPA, the standard of review applicable to the question of the equivalence of an offence under Turkish law to the offence of assault set out in section 266 of our Criminal Code is reasonableness.

 

[27]           Having considered all of the arguments submitted by each side, the Court is of the opinion that in the present case, the interpretation of the legislative provision in question—whose application is not closely connected to the administrative board’s function—is a question of law and therefore reviewable on a correctness standard.

 

[28]           It is true that the fact that the same minister is responsible for applying both statutes shows a certain closeness in their purposes. However, I cannot conclude from this that the CA is a statute that is “closely connected to [the] function” of the ID or with which it has a “particular familiarity” within the meaning of Dunsmuir v New Brunswick, 2008 SCC 9 at para 54, [2008] 1 SCR 190. The CA is a penal statute that applies to everyone regardless of their status in Canada and that covers many different matters. Although the various divisions of the Immigration and Refugee Board do have jurisdiction to apply it in relation to provisions of the IRPA (just as they may be called upon to apply certain provisions of the Criminal Code), this does not mean that they have specialized knowledge of it.

 

[29]           Even if such were the case, I agree with the decisions of this Court in Mohammad and Rizwan, above, which establish that a question of law, even if it concerns a tribunal’s home statute, could be reviewed on a standard of correctness if it is not inextricably intertwined with the facts (see Smith v Alliance Pipeline Ltd, 2011 SCC 7, [2011] 1 SCR 160, and Nor-Man Regional Health Authority Inc v Manitoba Association of Health Care Professionals, 2011 SCC 59 at para 36, [2011] 3 SCR 616, which were rendered after the abovementioned decisions). Moreover, the respondent did not submit any compelling arguments for distinguishing this case law on the basis of the facts in this application.

 

Offence under section 159 of the CA

[30]           Before addressing the second issue raised by this application for judicial review, I would like to make a second clarification. The ID found that the respondent’s version, namely that the cannabis seeds in his small bag (0.5 g) were left there inadvertently, was credible. Since the respondent did not challenge this finding of fact, the Court is obliged to accept it.

 

[31]           That said, the applicant submits that the ID erred in interpreting and applying section 159 of the CA and that, consequently, its decision is necessarily unreasonable.

 

[32]           The applicant submits that the case law on the notion of “fraude” indicates that it involves an element of dishonesty. Regarding the element of “fraude” set out in section 159 of the CA, the applicant refers to the decision of the Court of Queen’s Bench of Saskatchewan in R v Leugner, 2011 SKQB 469 at para 34, in which that Court states that one of the essential elements of this offence is that the accused knew that the goods were prohibited at the time he or she entered Canada.

 

[33]           The respondent reads section 159 of the CA differently. He submits that simply bringing a prohibited good into Canada, on the one hand, or attempting to bring it in, on the other, is in either case an offence within the meaning of this provision. Thus, the respondent argues that the mere fact that the applicant had in his possession a certain amount of cannabis upon his entry into Canada and did not declare it is enough to establish that he committed the offence.

 

[34]           With respect, the Court does not agree with this interpretation. On a plain reading of section 159, it is clear that the act of smuggling or attempting to smuggle must be fraudulent, whether this is done clandestinely or not. The English version confirms this interpretation.

[emphasis added]

 

[35]           The use of the word “fraude” in the phrasing of section 159 cannot be inconsequential. It is well known that Parliament does not speak in vain. Moreover, the CA is a criminal law statute, so the crimes set out in it must have a mens rea component.

 

[36]           From this, I conclude that the ID erred in its interpretation of section 159 when it decided that even though it was out of negligence or carelessness that the applicant travelled to Canada with cannabis in his luggage, he was still liable for the materials he was carrying.

 

[37]           Given the reasons set out in this decision, the application for judicial review will be allowed, and the case will be referred back to a differently constituted panel of the Immigration Division of the Immigration and Refugee Board for reassessment of the respondent’s credibility on the basis of all of the evidence, particularly the fact that he was in possession of (possibly viable) cannabis seeds and not cannabis. No questions were proposed to me for certification, and none will be certified.

 

JUDGMENT

 

THE COURT ORDERS AND ADJUDGES that:

1.                 The application for judicial review of the decision of the Immigration Division of the Immigration and Refugee Board, dated February 24, 2012, is allowed.

2.                 The matter is hereby referred back to a differently constituted panel of the Immigration Division for reconsideration in accordance with these reasons for judgment.

3.                 No question is certified.

 

“Jocelyne Gagné”

 

 

 

Certified true translation

Michael Palles

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

DOCKET:                                         IMM-2440-12

 

STYLE OF CAUSE:                                    Dominique Linise v MCI

 

 

PLACE OF HEARING:                  Montréal, Québec

 

DATE OF HEARING:                    August 30, 2012

 

REASONS FOR JUDGMENT &

JUDGMENT:                                   GAGNÉ J.

 

DATED:                                            October 3, 2012

 

 

 

APPEARANCES:

 

Ornella Saravalli	FOR THE APPLICANT
Diane Lemery	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

Ornella Saravalli Montréal, Quebec	FOR THE APPLICANT
Deputy Attorney General of Canada Guy Favreau Complex Montréal, Quebec	FOR THE RESPONDENT