Date: 20040902
Docket: IMM-2942-04
Citation: 2004 FC 1210
Ottawa, Ontario, this 2nd day of September, 2004
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
IVANOV, Nikola Vladov
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
SNIDER J.
[1] The Applicant ran errands for organised crime in Bulgaria. In December 1995, he was asked to take a suitcase containing one million U.S. dollars in cash from a local mafia member in Sofia, Bulgaria and deliver it to a Russian mobster. The Applicant instead chose to appropriate the funds, which he knew were likely the proceeds of crime, and flee.
[2] The Applicant, his wife and daughter left Bulgaria and remained illegally in the United States of America until July 2002. The Applicant and his family subsequently claimed Convention refugee status in Canada.
[3] In its decision dated March 4, 2004, a panel of the Immigration and Refugee Board, Refugee Protection Division (the _Board_) determined that the Applicant's wife and daughter are at risk, pursuant to section 97(1)(b) of the Immigration and Refugee Protection Act (_IRPA_) of because of the Applicant's criminal activities. However, the Board determined that the Applicant committed a serious non-political crime (namely, theft) pursuant to section 322 of the Criminal Code, R.S.C. 1985, c. C-46 and Article 1F(b) of the United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6 (_Convention_). The Board, therefore, determined that the Applicant is excluded pursuant to section 98 of the IRPA. The Applicant seeks judicial review of the Board's decision to reject his claim.
Issues
[4] The Applicant raises the following issues:
1. Did the Board err in its determination that the Applicant is excluded from the Convention by:
a) Failing to consider whether the Applicant had the requisite intent to commit theft pursuant to section 322 of the Criminal Code;
b) Failing to balance the potential harm awaiting the Applicant against the seriousness of his offence; or
c) Not considering mitigating factors?
Analysis
Issue #1: Did the Applicant commit a serious non-political crime?
[5] It is internationally recognized that a person is not a Convention refugee if there are serious reasons for considering that the person has committed a crime outside the country where he is seeking refuge (Convention, Article 1F(b)). Canada has incorporated this standard into Section 98 of the IRPA which states:
| 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. |
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La personne visée aux sections E ou F de l'article premier de la Convention sur les réfugiés ne peut avoir la qualité de réfugié ni de personne à protéger. |
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[6] The applicable standard of review in cases concerning Article 1F(b) of the Convention varies depending on whether the issues raised require a determination of fact, law or mixed law and fact (Xie v. Canada, (Minister of Citizenship and Immigration), [2004] 2 F.C.R. 372, at paras. 18 and 19). The general issue raised by the Applicant is whether the Board erred in its determination that he committed a serious non-political crime. This issue required the Board to apply the facts of this case to the law and thus raises a question of mixed fact and law to which the standard of reasonableness simpliciter applies.
(a) Did the Applicant possess the requisite intent to commit the crime of theft?
[7] The Applicant submits that he lacks the requisite intent to be culpable of theft as defined in section 322 of the Criminal Code. Put simply, he submits that the wording of s. 98 does not capture the intent of a person to steal from a thief. For this reason, the Applicant submits that he did not commit theft.
[8] Not surprisingly, the Applicant is not the first to make this argument before a Canadian court. In R. v. Grasser (1981), 64 C.C.C. (2d) 520 at 523 (N.S.S.C. App. Div.), this precise argument was raised, considered and rejected by the Nova Scotia Supreme Court, Appeal Division. The Court in Grasser canvassed the relevant Canadian jurisprudence, including the following statement made in the majority judgment of the Supreme Court of Canada [1972] S.C.R. 2; 21 D.L.R. (3d) 202:
731. Possession prima facie title. The prima facie presumption of law is that the person who has de facto possession has the property, and accordingly such possession is protected, whatever its origin, against all who cannot prove a superior title. This rule applies equally in criminal and civil matters. Thus a person in actual or apparent possession, but without the right to possession, has, as against a stranger or wrongdoer, all the rights and remedies of a person entitled to and able to prove a present right to possession.
[9] Given that rights attach by reason of possession, it appears that section 322(1)(a) of the Criminal Code does capture the act of a person who steals from a thief:
| (1) Every one commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right converts to his use or to the use of another person, anything, whether animate or inanimate, with intent
(a) to deprive, temporarily or absolutely, the owner of it, or a person who has a special property interest in it of the thing or of his property or interest in it; (emphasis added) |
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(1) Commet un vol quiconque prend frauduleusement et sans apparence de droit, ou détourne à son propre usage ou à l'usage d'une autre personne, frauduleusement et sans apparence de droit, une chose quelconque, animée ou inanimée, avec l'intention :
a) soit de priver, temporairement ou absolument, son propriétaire, ou une personne y ayant un droit de propriété spécial ou un intérêt spécial, de cette chose ou de son droit ou intérêt dans cette chose; |
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[10] The Applicant's argument is, therefore, without merit. A thief is a thief. This is so even if he only formed the intention to steal from a thief and not the rightful owner of the property that he converts to his own use. The Applicant admitted to stealing one million U.S. dollars. The Board did not make a reviewable error.
[11] In a twist on the theme, the Applicant argues that he did not steal the money but that the local mafia member gave up possession of the money voluntarily when he gave the suitcase of money to the Applicant. Thus, he argues, that the mafia member, who never had title to the money, passed on to the Applicant whatever rights he had to the money. No jurisprudence was adduced to support this novel interpretation. Even if there is merit to this argument (which I do not accept), the record does not show what interest the mafia member had in the money prior to giving up its physical possession. The Applicant acknowledged repeatedly that he took the money to which he had no right. He also admitted that he did not know whose money it was.
[12] The Board's conclusion that there were serious reasons for considering that the Applicant had committed a crime pursuant to section 322 of the Criminal Code and Article 1F(b) of the Convention was reasonable.
(b) Was the Board required to balance the potential harm awaiting the Applicant against the seriousness of his offence?
[13] The Applicant submits that the Board was required to balance the gravity of the offence he committed, which caused no physical harm to anyone, against the physical harm that might well come to him if he returns to Bulgaria.
[14] It is well-established in this Court's jurisprudence that such a balancing exercise is not required at law to be undertaken in respect to serious non-political crimes under Article 1F(b) of the Convention (Gil v. Canada (Minister of Employment and Immigration), [1995] 1 F.C. 508 (C.A.) at para. 43; Malouf v. Canada (1995), 190 N.R. 230; [1995] F.C.J. No. 1506 (F.C.A.), at para. 4, Xie, supra at para. 47). The Federal Court of Appeal categorically rejected this argument in Gil and Malouf and has affirmed the decision of Justice Kelen in Xie ([2004] F.C.J. No. 1142), stating, at para. 38:
Once the Board found that the exclusion applied, it had done everything that it was required to do, and there was nothing more it could do, for the appellant. The appellant was now excluded from refugee protection, a matter within the Board's competence and was limited to applying for protection, a matter within the Minister's jurisdiction.
[15] Although the Board's decision means that the Applicant cannot enter Canada as a Convention refugee or person in need of protection, a number of steps remain before the Applicant faces removal to his native country. The most significant of these steps is application for a Pre-Removal Risk Assessment (_PRRA_) pursuant to section 112 of the IRPA. It is at this stage that the balancing process mentioned by the Applicant and similar to the one discussed in Suresh would occur and, if successful, the Applicant's PRRA would result in a stay of removal order.
(c) Is poverty a mitigating factor that the Board was obliged to consider before rendering its decision?
[16] The Applicant submits that the Board had an obligation and failed to consider the following mitigating factors:
· the Applicant's family is very poor;
· the Applicant was the victim of extortion and violence by protection rackets; and
· the Applicant needs to support his seriously ill wife and his child.
[17] Even if an obligation to consider mitigating factors exists at law, the decision of the Board illustrates that it did consider the surrounding circumstances. The Board noted at the outset of its decision that the Applicant grew up on the streets and did not have a regular job except for between 1986 and 1990. Nevertheless, the Board found that no mitigating factors existed in this case. The Applicant testified that he took the money without reservation, that he has no remorse about taking it, and that he never thought about dissociating himself from the mafia. Although the Board did not specifically use the term _poverty_ in its decision, the reasons, when read as a whole, indicate that the Board was certainly aware of and considered the Applicant's background.
Conclusion
[18] For these reasons the application will be dismissed.
[19] The Applicant requests that I certify the following question:
In light of Suresh, is the Refugee Division required to conduct a balancing of the nature and severity of the claimant's offence against the nature and severity of the harm that he or she might face if returned to his or her country of origin?
[20] This question is a variant on one of the questions that was certified by Justice Kelen in the case of Xie, supra. Since that question has now been answered in the negative by the Federal Court of Appeal in its decision, a question posed in this case cannot be determinative of the claim of the Applicant. Nevertheless, the Applicant argues that I should certify the question on the basis of his information that the appellant in Xie intends to appeal the decision of the Federal Court of Appeal to the Supreme Court of Canada. In my view, this is an insufficient basis upon which to certify a question. Although I am not prepared to certify the question, I note that the Applicant in this case has the right to a PRRA. At that stage, the balancing sought by the Applicant will be carried out.
ORDER
THIS COURT ORDERS THAT:
1. The application is dismissed; and,
2. No question of general importance is certified.
_Judith A. Snider_
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2942-04
STYLE OF CAUSE: IVANOV, Nikola Vladov v. THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: August 31, 2004
AND ORDER: The Honourable Madam Justice Snider
DATED: September 2, 2004
APPEARANCES:
Mr. David Morris FOR APPLICANT
Mr. Richard Casanova FOR RESPONDENT
SOLICITORS OF RECORD:
Bell, Unger, Morris FOR APPLICANT
Mr. Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario