| Citation: |
jayasekara v. canada, 2008 FCA 404, [2009] 4 F.C.R. 164 |
A-140-08 |
Ruwan Chandima Jayasekara (Appellant)
v.
The Minister of Citizenship and Immigration (Respondent)
Indexed as: Jayasekara v. Canada (Minister of Citizenship and Immigration) (F.C.A.)
Federal Court of Appeal, Létourneau, Sharlow and Pelletier JJ.A.—Toronto, October 14; Ottawa, December 17, 2008.
Citizenship and Immigration — Exclusion and Removal — Inadmissible Persons — Appeal from Federal Court decision dismissing judicial review of Immigration and Refugee Board decision finding appellant not Convention refugee, person in need of protection under Immigration and Refugee Protection Act, s. 98 (IRPA), United Nations Convention Relating to the Status of Refugees, Art. 1F(b) on basis of “serious criminality” — Appellant pleading guilty to possession of opium, other drug-related charges while living illegally in United States — Although serving jail term in U.S., leaving for Canada thereafter without probation office’s permission — Commission of “serious” non-political crime central to exclusion clause of Convention, Art. 1F(b) — Background Note on the Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees suggesting gravity of crime be judged against international standards — Under IRPA, s. 101(2)(b), refugee claim ineligible to be referred to Refugee Protection Division by reason of “serious criminality” if offence committed punishable in Canada by maximum term of imprisonment of at least 10 years — Interpretation of exclusion clause in Art. 1F(b) regarding seriousness of crime requiring evaluation of elements of crime, mode of prosecution, penalty prescribed, etc. — Board considering number of factors in determining whether appellant convicted of serious crime outside Canada — Federal Court not erring when determining Board’s conclusion reasonable — Appeal dismissed.
International Law — Appellant excluded from refugee protection under Immigration and Refugee Protection Act, s. 98, United Nations Convention Relating to the Status of Refugees, Art. 1F(b) on basis of serious criminality — Signatory nations of United Nations drug conventions required to co-ordinate preventive, repressive action against drug trafficking — Drug trafficking defined, treated by signatory states as serious crime.
This was an appeal from a Federal Court decision dismissing the appellant’s application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (IRB) finding the appellant was not a Convention refugee or a person in need of protection pursuant to section 98 of the Immigration and Refugee Protection Act (IRPA) and Article 1F(b) of the United Nations Convention Relating to the Status of Refugees. The appellant fled Sri Lanka and arrived in the United States where he lived illegally for a number of years. In the U.S., he was arrested on drug-related charges and pled guilty to selling opium and to possessing marijuana. He was sentenced to jail and a five-year probation period. After serving his jail term, he left for Canada without obtaining permission from his probation office. Consequently, he was wanted in the U.S. as an absconder.
The IRB found that there were serious reasons for considering that the appellant had committed a serious non-political crime outside of Canada and that he had not completed his U.S. sentence. While the Federal Court certified two questions, only the first one needed to be addressed, i.e. whether serving a sentence for a serious crime prior to coming to Canada allows one to avoid exclusion under Article 1F(b) of the Convention.
Held, the appeal should be dismissed.
Central to the exclusion clause of Article 1F(b) of the Convention is the commission of a “serious” non-political crime. The United Nations High Commissioner for Refugees’ Background Note on the Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees suggests that the gravity of a crime be judged against international standards, not by how the host state or country of origin characterizes the crime in order to avoid disparities between countries regarding the same behaviour. Paragraph 101(2)(b) of the IRPA provides that a claim cannot be referred to the Refugee Protection Division by reason of “serious criminality” if the conviction outside Canada is for an offence that, if committed in Canada, would constitute an offence under an Act of Parliament that is punishable by a maximum term of imprisonment of at least 10 years. This is a strong indication that crimes resulting in this kind of penalty are considered serious crimes. If the length or completion of a sentence imposed is to be considered in determining the seriousness of a crime pursuant to Article 1F(b) of the Convention, it should not be considered in isolation since there are many reasons why a lenient sentence may be imposed even for a serious crime. Also, the perspective of the receiving state or nation must be considered. Finally, the interpretation of the exclusion clause in Article 1F(b) of the Convention regarding the seriousness of a crime requires an evaluation of the elements of the crime, the mode of prosecution, the penalty prescribed, the facts and the mitigating and aggravating circumstances underlying the conviction.
In accordance with the three United Nations drug conventions (i.e. the Single Convention on Narcotic Drugs, 1961, the Convention on Psychotropic Substances, and the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances), signatory nations are required to co-ordinate preventive and repressive action against drug trafficking, including the imposition of penal provisions as necessary. Most signatory states define and treat drug trafficking as a serious crime. The trafficking of opium in Canada is a serious crime. A person who sells it is liable to imprisonment for life. In determining whether the appellant had been convicted of a serious crime, which justified the application of the exclusion clause, the Board looked at a number of factors including the gravity of the crimes and the sentence imposed under the relevant U.S. legislation. The Federal Court did not err when it determined that it was reasonable for the Board to conclude that the appellant’s conviction in the U.S. gave it a serious reason to believe that he had committed a serious non-political crime outside the country. The first certified question was therefore answered in the affirmative.
STATUTES AND REGULATIONS CITED
Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 5, Sch. I.
Controlled Substances Act, 21 U.S.C. § 841 (2006).
Criminal Code Act 1995 (Cth.), s. 302.4(1).
Immigration Act, R.S.C., 1985, c. I-2, ss. 19(1)(c.1) (as am. by S.C. 1992, c. 49, s. 11; 1995, c. 15, s. 2), 46.01(1)(e)(i) (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 14; S.C. 1992, c. 49, s. 36; 1995, c. 15, s. 9(F)).
Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 36(1),(3)(c), 95(1), 96, 97, 98, 101, 112, 113, 114.
Misuse of Drugs Act 1971 (U.K.), 1971, c. 38, s. 4.
Misuse of Drugs Act 1975 (N.Z.), 1975/116, s. 6.
Penal Code, art. 222-37 (Fr.).
TREATIES AND OTHER Instruments cited
Convention on Psychotropic Substances, 21 February 1971, [1988] Can. T.S. No. 35.
Protocol amending the Single Convention on Narcotic Drugs, 1961, 25 March 1972, [1976] Can. T.S. No. 48.
Single Convention on Narcotic Drugs, 1961, 30 March 1961, [1964] Can. T.S. No. 30.
United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 20 December 1988, [1990] Can. T.S. No. 42.
United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6, Art. 1F(b).
CASES CITED
considered:
T. v. Secretary of State for the Home Dept, [1996] 2 All ER 865 (H.L.); Chan v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 390; (2000), 190 D.L.R. (4th) 128; 10 Imm. L.R. (3d) 167 (C.A.); Zrig v. Canada (Minister of Citizenship and Immigration), [2003] 3 F.C. 761; (2003), 229 D.L.R. (4th) 235; 32 Imm. L.R. (3d) 1; 2003 FCA 178; Ovcharuk v. Minister for Immigration and Multicultural Affairs (1998), 158 A.L.R. 289 (Aust. F.C.); Miguel-Miguel v. Gonzales, 500 F.3d 941 (9th Cir. 2007).
referred to:
Minister for Immigration and Multicultural Affairs v. Singh (2002), 186 A.L.R. 393 (Aust. H.C.); Dhayakpa v. Minister of Immigration and Ethnic Affairs (1995), 62 F.C.R. 556 (Aust. F.C.); Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689; (1993), 103 D.L.R. (4th) 1; 20 Imm. L.R. (2d) 85; Immigration and Naturalization Service v. Aguirre-Aguirre, 526 U.S. 415 (1999); S. v. Refugee Status Appeals Authority, [1998] 2 N.Z.L.R. 291 (C.A.); S. & Ors v. Secretary of State for the Home Department, [2006] EWCA Civ 1157; Xie v. Canada (Minister of Citizenship and Immigration), [2005] 1 F.C.R. 304; (2004), 243 D.L.R. (4th) 385; 37 Imm. L.R. (3d) 163; 2004 FCA 250; T. v. Secretary of State for the Home Department, [1995] 1 W.L.R. 545 (C.A.); R. v. B. (M.) (1987), 36 C.C.C. (3d) 573; 22 O.A.C. 100 (Ont. C.A.).
AUTHORS CITED
APPEAL from a Federal Court decision ((2008), 324 F.T.R. 62; 71 Imm. L.R. (3d) 23; 2008 FC 238) dismissing the appellant’s application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (X.V.G. (Re), [2007] R.P.D.D. No. 87 (QL)) excluding him from refugee protection on the basis of “serious criminality”. Appeal dismissed.
APPEARANCES
Michael E. Korman for appellant.
Lisa J. Hutt for respondent.
SOLICITORS OF RECORD
Otis & Korman, Toronto, for appellant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment rendered in English by
Létourneau J.A.:
The certified questions and whether they should be answered
[1] This is an appeal from a decision of Strayer D.J. of the Federal Court (Judge) [(2008), 324 F.T.R. 62] who dismissed the appellant’s application for judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Board (Board) [X.V.G. (Re), [2007] R.P.D.D. No. 87 (QL)]. The Judge certified the two following questions [at paragraph 18] for analysis by this Court:
1. Does serving a sentence for a serious crime prior to coming to Canada allow one to avoid the application of Article 1F(b) of the Convention?
2. If the answer to question 1 is affirmative, if a person is forced to leave the country where the crime was committed prior to the completion of his sentence, does this have the effect of deeming the sentence to have been served?
In application of section 98 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) and the exclusion clause in Article 1F(b) of the Convention [United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6], the Board found that the appellant was not a Convention refugee or a person in need of protection. In addition, the Board ruled that the appellant was not credible and did not meet the criteria of the Convention. There is no appeal from this second finding of the Board. From that perspective, the appeal is moot.
[2] However, a person who, pursuant to section 98 of the IRPA, is excluded as a Convention refugee on the basis of Article 1F(b) of the Convention, cannot obtain refugee protection. This results from the combined effect of paragraphs 95(1)(c) and 112(3)(c) of the IRPA.
[3] Moreover, while that person can still apply to the Minister of Citizenship and Immigration (Minister) for protection if subject to a removal order, he or she cannot obtain permanent resident status. Pursuant to paragraph 114(1)(b) of the IRPA, the Minister’s decision to allow the application for protection merely has the effect of staying the removal order. In view of these consequences on a claimant, I believe that this Court should address the certified questions.
[4] Section 98 of the IRPA and the interpretation to be given to the word “serious” in the terms “serious non-political crime” found in Article 1F(b) of the Convention carry with them an international dimension. As Lord Llyod of Berwick said in T. v. Secretary of State for the Home Dept, [1996] 2 All ER 865 (H.L.), at page 891, “[i]n a case concerning an international convention it is obviously desirable that decisions in different jurisdictions should, so far possible, be kept in line with each other.” For this reason, we requested the parties provide us with additional submissions containing references to the international jurisprudence on this question.
[5] More specifically, the parties were asked to provide references:
(a) as to whether the seriousness of a non-political crime within the meaning of Article 1F(b) of the Convention is determined solely by reference to the maximum sentence that can be imposed for the particular crime as provided in the domestic law of the country of refuge; or
(b) whether, in making the determination, the facts relating to the nature and seriousness of the acts committed may or must be taken into account.
The parties were given until November 7, 2008, to complete their submissions.
[6] Before stating the facts, I reproduce the relevant provisions:
Convention
Article 1
Definition of the Term “Refugee”
. . .
F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
(c) he has been guilty of acts contrary to the purposes and principles of the United Nations. [Emphasis added.]
IRPA
PART 1
IMMIGRATION TO CANADA
. . .
Division 4
Inadmissibility
. . .
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.
. . .
PART 2
REFUGEE PROTECTION
Division 1
Refugee Protection, Convention Refugees and
Persons in Need of Protection
95. (1) Refugee protection is conferred on a person when
(a) the person has been determined to be a Convention refugee or a person in similar circumstances under a visa application and becomes a permanent resident under the visa or a temporary resident under a temporary resident permit for protection reasons;
(b) the Board determines the person to be a Convention refugee or a person in need of protection; or
(c) except in the case of a person described in subsection 112(3), the Minister allows an application for protection.
. . .
96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or
(b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.
97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide adequate health or medical care.
(2) A person in Canada who is a member of a class of persons prescribed by the regulations as being in need of protection is also a person in need of protection.
98. A person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention refugee or a person in need of protection.
. . .
101. (1) A claim is ineligible to be referred to the Refugee Protection Division if
. . .
(f) the claimant has been determined to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality, except for persons who are inadmissible solely on the grounds of paragraph 35(1)(c).
(2) A claim is not ineligible by reason of serious criminality under paragraph (1)(f) unless
(a) in the case of inadmissibility by reason of a conviction in Canada, the conviction is for an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years and for which a sentence of at least two years was imposed; or
(b) in the case of inadmissibility by reason of a conviction outside Canada, the Minister is of the opinion that the person is a danger to the public in Canada and the conviction is for an offence that, if committed in Canada, would constitute an offence under an Act of Parliament that is punishable by a maximum term of imprisonment of at least 10 years.
. . .
Division 3
Pre-removal Risk Assessment
Protection
112. (1) A person in Canada, other than a person referred to in subsection 115(1), may, in accordance with the regulations, apply to the Minister for protection if they are subject to a removal order that is in force or are named in a certificate described in subsection 77(1).
. . .
(3) Refugee protection may not result from an application for protection if the person
(a) is determined to be inadmissible on grounds of security, violating human or international rights or organized criminality;
(b) is determined to be inadmissible on grounds of serious criminality with respect to a conviction in Canada punished by a term of imprisonment of at least two years or with respect to a conviction outside Canada for an offence 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;
(c) made a claim to refugee protection that was rejected on the basis of section F of Article 1 of the Refugee Convention; or
(d) is named in a certificate referred to in subsection 77(1).
113. Consideration of an application for protection shall be as follows:
. . .
(c) in the case of an applicant not described in subsection 112(3), consideration shall be on the basis of sections 96 to 98;
(d) in the case of an applicant described in subsection 112(3), consideration shall be on the basis of the factors set out in section 97 and
(i) in the case of an applicant for protection who is inadmissible on grounds of serious criminality, whether they are a danger to the public in Canada, or
(ii) in the case of any other applicant, whether the application should be refused because of the nature and severity of acts committed by the applicant or because of the danger that the applicant constitutes to the security of Canada.
114. (1) A decision to allow the application for protection has
(a) in the case of an applicant not described in subsection 112(3), the effect of conferring refugee protection; and
(b) in the case of an applicant described in subsection 112(3), the effect of staying the removal order with respect to a country or place in respect of which the applicant was determined to be in need of protection. [Emphasis added.]
The facts
[7] The facts can be summarized as follows. The appellant, Mr. Ruwan Chandima Jayasekara, is a Sri Lankan citizen of Sinahalese ethnicity. He was allegedly targeted in Sri Lanka by the Tamil Tigers. He arrived in the United States in 1998 and lived there without status until 2004.
[8] In January 2004, he was arrested in New York State on drug charges and pled guilty to the “criminal sale of the controlled substance opium in the third degree” and to criminal possession of marijuana. In March 2004, he was convicted and sentenced to 29 days in jail and a five-year probation period.
[9] One month after completing his jail term, he attended an immigration hearing and was issued a voluntary departure order to leave the United States by October 2004.
[10] On July 5, 2004, he entered Canada and claimed refugee protection. He did not apply to his probation office to obtain permission to leave the jurisdiction of the United States and a warrant for his arrest as an absconder was issued on July 27, 2004.
The Board’s decision
[11] The Board heard the appellant’s refugee claim on April 12 and September 15, 2006. As previously mentioned, it found that he was excluded from refugee protection under section 98 of the IRPA and Article 1F(b) of the Convention because there were serious reasons for considering that he had committed a serious non-political crime outside of Canada and that he had not completed his sentence as he fled the United States during his probation.
[12] Moreover, it found that, even if the appellant was not excludable under Article 1F(b) of the Convention, he did not meet the criteria for either Convention refugee status or as a person requiring protection. These findings based on credibility are not contested.
[13] The appellant sought judicial review before the Federal Court only of his exclusion under section 98 of the IRPA and Article 1F(b) of the Convention.
The Federal Court decision
[14] The Judge reviewed the Board’s decision on the standard of reasonableness because, at the core of it, the question of the exclusion under section 98 of the IRPA and Article 1F(b) of the Convention was one of mixed fact and law which involved some degree of discretion: see paragraph 10 of the reasons for judgment.
[15] He was also of the view that it was reasonable for the Board to conclude that the appellant’s conviction in the United States gave it a serious reason to believe that he had committed a serious non-political crime outside the country. He found that conclusion to be reasonable because the offence committed by the appellant would carry a maximum sentence of life imprisonment in Canada. At paragraph 11 of the reasons for judgment he wrote:
It was perfectly reasonable for the Board to use as a measurement of a “serious” crime the view which Canadian law takes of that offence, not the seriousness of the penalty imposed in the United States.
[16] With respect to the certified questions, the Judge ruled that the appellant had not completed his sentence in the United States as he voluntarily left that country with most of his five years’ probation unserved.
[17] Finally, addressing the appellant’s contention that Article 1F(b) of the Convention is inapplicable to persons who have served their sentence abroad before coming to Canada, the Judge reviewed the decisions of our Court in Chan v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 390 (C.A.) and Zrig v. Canada (Minister of Citizenship and Immigration), [2003] 3 F.C. 761 (C.A.). He concluded that the Board was still right to have excluded the appellant under Article 1F(b) of the Convention, even if he were deemed to have constructively served his sentence in the United States.
The purpose of Article 1F(b) of the Convention
[18] The purpose of Article 1F(b) of the Convention was considered by our Court in the Chan and Zrig decisions. Counsel for the appellant submits that Chan is still good and applicable law. He argued that Chan established a general principle that a person who has served his sentence should not be excluded under Article 1F(b) of the Convention.
[19] The appellant relies upon the following statement of Robertson J.A., at paragraph 4 of the reasons for judgment in Chan:
Assuming without deciding that the appellant’s conviction qualifies as a serious non-political crime, it is clear to me that Article 1F(b) cannot be invoked in cases where a refugee claimant has been convicted of a crime and served his or her sentence outside Canada prior to his or her arrival in this country. I rest this conclusion on two grounds. First, obiter comments of Justice Bastarache in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 (writing for the majority) and Justice La Forest in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, fully support this interpretation of Article 1F(b), as do the writings of academic commentators. Second, any other interpretation is in conflict with the statutory scheme set out in the Immigration Act.
[20] In that case, our Court had to reconcile the terms of Article 1F(b) of the Convention with then subparagraphs 46.01(1)(e)(i) [as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 14; S.C. 1992, c. 49, s. 36; 1995, c. 15, s. 9(F)] and 19(1)(c.1) [as am. by S.C. 1992, c. 49, s. 11; 1995, c. 15, s. 2] of the former Immigration Act, R.S.C., 1985, c. I-2, as amended (former Act).
[21] These provisions of the former Act read:
19. (1) No person shall be granted admission who is a member of any of the following classes:
. . .
(c.1) persons who there are reasonable grounds to believe
(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
. . .
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;
. . .
46.01 (1) A person who claims to be a Convention refugee is not eligible to have the claim determined by the Refugee Division if the person
. . .
(e) has been determined by an adjudicator to be
(i) a person described in paragraph 19(1)(c) or sub-paragraph 19(1)(c.1)(i) and the Minister is of the opinion that the person constitutes a danger to the public in Canada. [Emphasis added.]
[22] Pursuant to section 46.01, a person who was inadmissible to Canada could not have his or her claim determined by the Refugee Division [now the Refugee Protection Division]. In other words, he or she was excluded from a refugee hearing before the Refugee Division.
[23] However, subparagraph 19(1)(c.1)(i) created an exception to the inadmissibility to Canada of persons convicted outside of Canada for a crime that could be punishable in Canada by a maximum term of imprisonment of 10 years or more.
[24] As a matter of fact, a person convicted of such crimes could still be eligible for refugee protection and have his or her claim determined by the Refugee Division if the Minister was satisfied that that person had rehabilitated himself or herself and that five years had elapsed since the expiration of the sentence imposed or since the commission of the act or omission.
[25] In order to give meaning to the rehabilitation provisions of the former Act, Robertson J.A. found in Chan that Article 1F(b) of the Convention could not be given an interpretation which would have resulted in a blanket exclusion of those who had been found guilty of serious crimes as defined in the Act. Such interpretation would have deprived a claimant of the protection offered by the exception to the inadmissibility rule. I should add, it would have also divested the Minister of his discretionary power under paragraph 19(1)(c.1) of that Act.
[26] In my respectful view, the decision in Chan stands for the proposition that, under the existing law at the time, which, as we will see, has now been modified by the IRPA, a claimant who was convicted of a serious non-political crime and who served his sentence was not necessarily excluded from a refugee hearing or rendered ineligible to apply for the refugee protection afforded by the Convention. He or she remained entitled to have their refugee claim determined by the Refugee Division if the Minister concluded that the claimant was rehabilitated and was not a danger to the public.
[27] While the decision in Chan afforded some protection to a claimant and safeguarded the Minister’s discretion, it did not then, nor does it now, in my respectful view, stand for the proposition that, whatever the circumstances, a country cannot exclude an applicant who was convicted and served his sentence.
[28] The purpose stated in Chan is neither the only nor, as contended by the appellant, necessarily the primary purpose sought by the exclusion contained in Article 1F(b) of the Convention. This is made clear by the subsequent decision of our Court in Zrig. In this respect, our colleague Décary J.A. wrote, at paragraphs 118 and 119 of that decision:
Purposes of Article 1F of the Convention in general, and Article 1F(b) in particular
My reading of precedent, academic commentary and of course, though it has often been neglected, the actual wording of Article 1F of the Convention, leads me to conclude that the purpose of this section is to reconcile various objectives which I would summarize as follows: ensuring that the perpetrators of international crimes or acts contrary to certain international standards will be unable to claim the right of asylum; ensuring that the perpetrators of ordinary crimes committed for fundamentally political purposes can find refuge in a foreign country; ensuring that the right of asylum is not used by the perpetrators of serious ordinary crimes in order to escape the ordinary course of local justice; and ensuring that the country of refuge can protect its own people by closing its borders to criminals whom it regards as undesirable because of the seriousness of the ordinary crimes which it suspects such criminals of having committed. It is this fourth purpose which is really at issue in this case.
These purposes are complementary. The first indicates that the international community did not wish persons responsible for persecution to profit from a convention designed to protect the victims of their crimes. The second indicates that the signatories of the Convention accepted the fundamental rule of international law that the perpetrator of a political crime, even one of extreme seriousness, is entitled to elude the authorities of the State in which he committed his crime, the premise being that such a person would not be tried fairly in that State and would be persecuted. The third indicates that the signatories did not wish the right of asylum to be transformed into a guarantee of impunity for ordinary criminals whose real fear was not being persecuted, but being tried, by the countries they were seeking to escape. The fourth indicates that while the signatories were prepared to sacrifice their sovereignty, even their security, in the case of the perpetrators of political crimes, they wished on the contrary to preserve them for reasons of security and social peace in the case of the perpetrators of serious ordinary crimes. This fourth purpose also indicates that the signatories wanted to ensure that the Convention would be accepted by the people of the country of refuge, who might be in danger of having to live with especially dangerous individuals under the cover of a right of asylum. [Emphasis added.]
[29] I agree with this well-documented statement of our colleague Décary J.A.: see also on the existence and scope of this fourth purpose Minister for Immigration and Multicultural Affairs v. Singh (2002), 186 A.L.R. 393 (Aust. H.C.), at paragraphs 94-95; Dhayakpa v. Minister of Immigration and Ethnic Affairs (1995), 62 F.C.R. 556 (Aust. F.C.), at paragraphs 27-29; Ovcharuk v. Minister for Immigration and Multicultural Affairs (1998), 158 A.L.R. 289 (Aust. F.C.). The purposes are complementary and, in my view, there is no ranking among them.
[30] Some elements of the reasoning in Chan are still relevant under the IRPA because of the ineligibility rule applicable to refugee claimants under Part 2 of the IRPA [sections 95 to 116], such as ineligibility for serious criminality: see subsections 101(1) and 101(2) of the IRPA.
[31] There is, however, a notable difference between the IRPA and the former Act. Under paragraph
46.01(1)(e) and subparagraph 19(1)(c.1)(i) of the former Act, a claimant was ineligible for a refugee hearing if he was inadmissible to Canada on account of serious criminality unless, as previously stated, the Minister was satisfied that the claimant had rehabilitated himself or herself and five years had elapsed since the expiration of any sentence imposed for the offence or since the commission of the act or omission.
[32] Under the IRPA, the rule as to ineligibility has changed. By virtue of subsection 101(2), a claimant, who is inadmissible by reason of serious criminality, now remains eligible for a refugee hearing unless the “Minister is of the opinion that the person is a danger to the public in Canada and the conviction is for an offence that, if committed in Canada, would constitute an offence under an Act of Parliament that is punishable by a maximum term of imprisonment of at least 10 years” (emphasis added).
[33] In other words, under the former Act, there was a rule of ineligibility for a refugee hearing if a claimant was inadmissible on account of serious criminality. That rule operated unless the exception applied. Under the IRPA the rule is reversed. A claimant remains eligible unless the exception applies.
[34] The concept of “sentence served” remains relevant to the issue of admissibility to Canada by reason of paragraph 36(3)(c) of the IRPA which deals with rehabilitation.
[35] This brings me now to the determination of the first certified question and the role that domestic law plays or should play in the interpretation of the exclusion clause contained in Article 1F(b) of the Convention.
Does serving a sentence for a serious crime prior to coming to Canada allow one to avoid the application of Article 1F(b) of the Convention
[36] Central to the exclusion clause of Article 1F(b) of the Convention is the commission of a “serious” non-political crime. What does “serious” mean in that clause? What are the criteria for determining whether a claimant’s crime is serious within the meaning of Article 1F(b) of the Convention? What standards are applicable to that determination? International or local standards or both? Was the crime in the present instance serious enough to justify the application of the exclusion clause? These questions must now be addressed in the context of Article 1F(b) of the Convention.
(a) The standards applicable to the determination of the gravity of a crime
[37] The [Office of the United Nations High Commissioner for Refugees] UNHCR-issued Background Note on the Application of the Exclusion Clauses: Article IF of the 1951 Convention relating to the Status of Refugees (the UN Refugee Agency), at paragraph 38, suggests that the gravity of a crime be “judged against international standards, not simply by its characterization in the host State or country of origin.” This is, of course, to avoid the profound disparities which may exist between countries with respect to the same behaviour. As Branson J. wrote in Ovcharuk v. Minister for Immigration and Multicultural Affairs, at page 300 of his reasons for judgment, “[o]ne needs only to bring to mind regimes under which conduct such as peaceful political dissent, the possession of alcohol and the ‘immodest’ dress of women is regarded as seriously criminal.”
[38] The UNHCR Background Note proposes, at paragraph 39, the following factors as relevant in determining the seriousness of a crime for the purpose of Article 1F(b) of the Convention:
• the nature of the act;
• the actual harm inflicted;
• the form of procedure used to prosecute the crime;
• the nature of the penalty for such a crime; and
• whether most jurisdictions would consider the act in question as a serious crime.
The Background Note goes on to give as examples of serious crimes the crimes of murder, rape, arson and armed robbery. They also refer to other offences which could be deemed to be serious “if they are accompanied by the use of deadly weapons, involve serious injury to persons, or there is evidence of serious habitual criminal conduct and other similar factors”: at paragraph 40. Reference here is clearly made to circumstances surrounding the commission of the crime which, the Guidelines submit, should be taken into account in assessing the seriousness of the crime.
[39] The UNHCR Background Note is not binding. Nor is the UN Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, Geneva, reedited January 1992, although the Handbook can be relied upon by the courts for guidance: see Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, at pages 713–714; Dhayakpa, at paragraph 27; Ovcharuk, at page 294; Immigration and Naturalization Service v. Aguirre-Aguirre, 526 U.S. 415 (1999), at pages 426–428. I also agree that the Handbook cannot override the functions of the Court in deter-mining the words of the Convention: see the reasons for judgment of Henry J. in S. v. Refugee Status Appeals Authority, [1998] 2 N.Z.L.R. 291 (C.A.), at pages 299–300.
[40] For the purpose of determining whether a person is ineligible to have his or her refugee claim referred to the Refugee Protection Division on the basis of “serious criminality”, paragraph 101(2)(b) of the IRPA requires a conviction outside Canada for an offence which, if committed in Canada would be an offence in Canada punishable by a maximum term of at least 10 years. This is a strong indication from Parliament that Canada, as a receiving state, considers crimes for which this kind of penalty is prescribed as serious crimes. In the case of a crime committed outside Canada, paragraph 101(2)(b) makes the length of the sentence actually imposed irrelevant. This is to be contrasted with paragraph 101(2)(a) which deals with inadmissibility by reason of a conviction in Canada. In this last instance, Parliament has seen fit to require that the offence be punishable by a maximum term of imprisonment of at least 10 years and that a sentence of at least two years has been imposed.
[41] I agree with counsel for the respondent that, if under Article 1F(b) of the Convention the length or completion of a sentence imposed is to be considered, it should not be considered in isolation. There are many reasons why a lenient sentence may actually be imposed even for a serious crime. That sentence, however, would not diminish the seriousness of the crime committed. On the other hand, a person may be subjected in some countries to substantial prison terms for behaviour that is not considered criminal in Canada.
[42] Further, in many countries, sentencing for criminal offences takes into account factors other than the seriousness of the crime. For example, a player in a prostitution ring may, out of self-interest, assist the prosecuting authorities in the dismantling of the ring in return for a light sentence. Or an offender may seek and obtain a more lenient sentence in exchange for a guilty plea that relieves the victim of the ordeal of testifying about a traumatic sexual assault. Costly and time-consuming mega-trials involving numerous accused can be avoided in the public interest through the negotiation of guilty pleas and lighter sentences. The negotiations relating to sentences may involve undertakings of confidentiality, protection of persons and solicitor-client privileges. Access to the confidential, secured and privileged information may not be permitted, so that a look at the lenient sentence in isolation by a reviewing authority would provide a distorted picture of the seriousness of the crime of which the offender was convicted.
[43] While regard should be had to international standards, the perspective of the receiving state or nation cannot be ignored in determining the seriousness of the crime. After all, as previously alluded to, the protection conferred by Article 1F(b) of the Convention is given to the receiving state or nation. The UNHCR Background Note acknowledges as much: see paragraph 36 above.
[44] I believe there is a consensus among the courts that the interpretation of the exclusion clause in Article 1F(b) of the Convention, as regards the seriousness of a crime, requires an evaluation of the elements of the crime, the mode of prosecution, the penalty prescribed, the facts and the mitigating and aggravating circumstances underlying the conviction: see S. v. Refugee Status Appeals Authority; S. & Ors v. Secretary of State for the Home Department, [2006] EWCA Civ 1157; Miguel-Miguel v. Gonzales, 500 F.3d 941 (9th Cir. 2007), August 29, 2007, at pages 945 and 946-947. In other words, whatever presumption of seriousness may attach to a crime internationally or under the legislation of the receiving state, that presumption may be rebutted by reference to the above factors. There is no balancing, however, with factors extraneous to the facts and circumstances underlying the conviction such as, for example, the risk of persecution in the state of origin: see Xie v. Canada (Minister of Citizenship and Immigration), [2005] 1 F.C.R. 304 (F.C.A.), at paragraph 38; Immigration and Naturalization Service v. Aguirre-Aguirre, at page 427; T. v. Secretary of State for the Home Department, [1995] 1 W.L.R. 545 (C.A.), at pages 554-555; Dhayakpa v. Minister of Immigration and Ethnic Affairs, at paragraph 24.
[45] For instance, a constraint short of the criminal law defence of duress may be a relevant mitigating factor in assessing the seriousness of the crime committed. The harm caused to the victim or society, the use of a weapon, the fact that the crime is committed by an organized criminal group, etc. would also be relevant factors to be considered.
[46] I should add for the sake of clarity that Canada, like Great Britain and the United States, has a fair number of hybrid offences, that is to say offences which, depending on the mitigating or aggravating circumstances surrounding their commission, can be prosecuted either summarily or more severely as an indictable offence. In countries where such a choice is possible, the choice of the mode of prosecution is relevant to the assessment of the seriousness of a crime if there is a substantial difference between the penalty prescribed for a summary conviction offence and that provided for an indictable offence.
(b) Whether the crime in the present instance is serious and justified the application of the exclusion clause
[47] It should be recalled that the appellant was convicted in the United States for trafficking a hard drug, namely opium.
[48] It is not disputed that trafficking in narcotics and psychotropic substances can entail both human and economic consequences for society. As the evidence reveals, drug trafficking is treated as a serious crime across the international spectrum. In their book on The Refugee in International Law, 3rd ed., Oxford University Press, 2007, at page 179, G. S. Goodwin-Gill and J. McAdam mention that the UNHCR, with a view to promoting consistent decisions “proposed that, in the absence of any political factors, a presumption of serious crime might be considered as raised by evidence of commission of any of the following offences: homicide, rape, child molesting, wounding, arson, drugs traffic, and armed robbery” (emphasis added).
[49] In accordance with the three United Nations drug conventions, i.e. the Single Convention on Narcotic Drugs, 1961 [30 March 1961, [1964] Can. T.S. No. 30] (amended by the Protocol of 25 March 1972 [Protocol amending the Single Convention on Narcotic Drugs, 1961, [1976] Can. T.S. No. 48]); the Convention on Psychotropic Substances, 21 February 1971, [1988] Can. T.S. No. 35; and the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 20 December 1988, [1990] Can. T.S. No. 42, signatory nations are required to co-ordinate preventive and repressive action against drug trafficking, including the imposition of penal provisions as necessary. The choice of penal provisions remains at the discretion of the Member State and may exceed those provided by the Conventions if the Member States deem them desirable or necessary for the protection of public health and welfare.
[50] As reflected by the penal provisions enacted, most signatory states define and treat drug trafficking as a serious crime. In contrast to mere possession, drug trafficking is usually punishable by a period of incarceration. In this country, the sentence imposed for a drug trafficking offence carries a maximum time of 18 months for a summary conviction and up to a maximum of life imprisonment for an indictable offence depending on the substance trafficked: see the Controlled Drugs and Substances Act, S.C. 1996, c. 19, section 5.
[51] In other countries, the punishment is equal to or greater than ours and can include both incarceration and the imposition of fines. The United States also provides for a range of sentences depending on the substance trafficked, whether the consequence of trafficking included serious injury or death, and whether there were prior convictions. Overall, sentences can range from a minimum of one year to a life sentence and fines can be imposed from $100 000 to $20 000 000, depending on, as per the wording of the article, whether the offender is an individual or other than an individual: see 21 U.S.C. § 841 (2006) [Controlled Substances Act]. In a recent case comparable to ours where the accused pleaded guilty to selling .26 grams of rock cocaine for $20, the U.S. Court of Appeals for the Ninth Circuit upheld, in August 2007, the presumption that the accused had committed a particularly serious crime. The accused had been sentenced to the time served (36 days), a fine of $200 and a five-year probation period: see Miguel‑Miguel v. Gonzales.
[52] Less severe, but similar punishment is legislated in England, Australia, New Zealand and France. Drug trafficking in the United Kingdom can lead to a maximum sentence of 3 to 12 months for summary conviction offences or a 400 to 2 500 pound fine or both. For indictable offences, the penalty is increased, ranging from 5 years to life imprisonment or a fine or both: see the Misuse of Drugs Act 1971 (U.K.), 1971, c. 38, section 4 and Schedule 4. Similarly, Australia permits a 10-year period of imprisonment or 2 000 penalty units, or both: see Criminal Code Act 1995 (Cth.), subsection 302.4(1). New Zealand sets a range for indictable trafficking offences of a maximum of 8 years to life imprisonment depending on the substance and up to one year imprisonment or a fine of up to $1 000 for summary conviction offences: see Misuse of Drugs Act 1975 (N.Z.), 1975/116, section 6. Finally, France allows for 10 years of imprisonment and fines of 7.5 million euros when the trafficked drug is for resale as opposed to individual consumption: see the French Penal Code, article 222-37.
[53] In this country, opium is classified in Schedule 1 and, according to paragraph 5(3)(a) of the Controlled Drugs and Substances Act, a person who sells that substance is liable to imprisonment for life. There is no doubt that Parliament considers the trafficking of opium as a serious crime.
[54] In the United States, the behaviour of the appellant was classified a Class B felony. The appellant, although a first offender, received a sentence of 29 days in jail and a five-year probation period. A probation order, especially one of five years, is not necessarily a light sentence as it entails restrictions which can be severe on one’s liberty as well as conditions leading to penal consequences in case of breaches: see R. v. B. (M) (1987), 36 C.C.C. (3d) 573 (Ont. C.A.).
[55] In determining whether the appellant had been convicted of a serious crime, the Board looked at:
(a) the gravity of the crimes (trafficking in opium and criminal possession of marijuana) under New York legislation which, even for a first offender, resulted in a jail term as well as a five-year probation period;
(b) the sentence imposed by the New York Court;
(c) the facts underlying the conviction, namely the nature of the substance trafficked and possessed, a traffic of opium in three parts, the quantity of drugs possessed and trafficked;
(d) the finding of this Court in Chan that a crime is a serious non-political crime if a maximum sentence of 10 years or more could have been imposed if the crime had been committed in Canada;
(e) the objective gravity of a crime of trafficking in opium in Canada which carries a possible penalty of life imprisonment; and
(f) the fact that the appellant violated his probation order by failing to report three times to his probation officer and eventually absconded.
[56] I believe that the Judge committed no error when he concluded that it was reasonable for the Board to conclude on these facts that the appellant’s conviction in the United States gave it a serious reason to believe that he had committed a serious non-political crime outside the country.
(c) The answer to the first certified question
[57] The answer to the following question:
Does serving a sentence for a serious crime prior to coming to Canada allow one to avoid the application of Article 1F(b) of the Convention?
is no.
[58] In view of the conclusion that I have reached on the first certified question, it is not necessary to answer the second question.
Conclusion
[59] For these reasons, I would dismiss the appeal. I am indebted to both counsel for their assistance in resolving the issues before us.
Sharlow J.A.: I agree.
Pelletier J.A.: I agree.