Thursday, May 12, 2011

Raina–equivalency of offenses

Raina v. Canada (Citizenship and Immigration), 2011 FC 19 (CanLII)

Judge: Justice Heneghan

Date heard: July 13, 2010

Date decided: January 11, 2011

Counsel for Raina: Krassina Kostadinov

Counsel for Minister: Amy Lambiris, Manuel Mendelzon

Place of Hearing: Toronto, Ontario

The Applicant was a citizen of India who claimed refugee protection after coming to Canada in 2006 (para. 2).

Before coming to Canada, the Applicant had been convicted of “indecent assault” in New Zealand in December 2001, and served 2.5 years. At the same time, he was acquitted of the “more serious offence of sexual violence for the same incident” (para. 2).

Before the RPD, the Minister argued that indecent assault was the equivalent of the Canadian crime of “Sexual interference”, referring to s. 151 of the Criminal Code, which states that it could be dealt with summarily (term of 14 days to 18 months) or by indictment (term of 45 days to 10 years) (para. 4).

The RPD found the Applicant’s conviction to be equivalent to “child molestation” and stated without explanation that the punishment could be up to ten years, which the RPD found to create a presumption that the Applicant had committed a serious non-political crime. The RPD rejected the Applicant’s argument that the elements of the offense in New Zealand did not match those in s. 151 of the Criminal Code (paras. 5-6).

Justice Heneghan relied on the FCA decision of Hill v. Canada (Minister of Employment & Immigration) (1987), 73 N.R. 315 for its statement on determining equivalency:

“It seems to me that because of the presence of the words ‘would constitute an offence ... in Canada’, the equivalency can be determined in three ways: - first, by a comparison of the precise wording in each statute both through documents and, if available, through the evidence of an expert or experts in the foreign law and determining therefrom the essential ingredients of the respective offences. Two, by examining the evidence adduced before the adjudicator, both oral and documentary, to ascertain whether or not that evidence was sufficient to establish that the essential ingredients of the offence in Canada had been proven in the foreign proceedings, whether precisely described in the initiating documents or in the statutory provisions in the same words or not. Third, by a combination of one and two.”

On the basis of Hill, Justice Heneghan found that the RPD had failed to apply the proper tests for equivalency (paras. 7-9).

Furthermore, Heneghan J. found that the RPD had erred in using the Applicant’s acquittal on the charge of “sexual violence” to determine whether the conviction was for a serious non-political crime (para. 10). Relying on Bertold v. Canada (Minister of Citizenship and Immigration) (1999), 175 F.T.R. 195, Justice Heneghan reiterated that such “references to outstanding criminal charges are inadmissible and violate the Canadian Charter of Rights and Freedoms…” (para. 11).

JUDICIAL REVIEW ALLOWED

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