Federal Court Decisions

     IMM-1856-97

BETWEEN:

     ABDULLAI IDDI MASASI

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

CULLEN J.:

     This is an application for judicial review of the decision, dated April 28, 1997, of Anne Micillo, Adjudicator, of the Immigration and Refugee Board, Adjudication Division [hereinafter, the "adjudicator"], wherein it was determined that the applicant is inadmissible to Canada pursuant to subparagraph 19(1)(c.1)(i) of the Immigration Act [hereinafter, the "Act"]. As a consequence of this determination, the applicant was ordered deported from Canada pursuant to subsection 36(2) of the Act.

     The applicant requests an order in the nature of a certiorari to quash or set aside the decision of the adjudicator, and to send the matter back to a different adjudicator for re-determination.

---

THE FACTS

     The applicant is a citizen of Tanzania and was born on October 12, 1970. In 1993, the applicant attended Winona State University in the United States. On July 26, 1993, the applicant was in a bar-room fight with another person from the university. The applicant was subsequently arrested and charged with "Assault in the Second Degree," contrary to sub-division 2 of section 609.222 of the Minnesota Criminal Code.

     According to the official version of the facts relating to the above assault, as set out in the Pre-Sentence Investigation report prepared by the State of Minnesota Department of Corrections, the applicant was involved in a verbal altercation with the victim of the assault. The applicant then hit the victim over the head with a beer glass. The victim was taken to hospital by ambulance, and required a number of sutures to close the wound.

     The applicant came to Canada from the United States in February of 1996. In December of 1996, an inquiry was held to determine whether the applicant was a member of an inadmissible class under the Act. At the time, the applicant had been alleged to belong to an inadmissible class as set out in sub-paragraph 19(2)(a.1)(i). The applicant was determined not to be a member of this class.

     In 1997, the applicant was again the subject of an inquiry. This time, the inquiry was with respect to the inadmissible class of persons described in sub-paragraph 19(1)(c.1)(i) of the Act.

     Counsel for the applicant argued, during the inquiry, that the Minnesota offence found its equivalence in section 266 of the Criminal Code of Canada. Section 266 is a hybrid offence for which, if prosecuted by indictment, would carry with it a maximum term of five years imprisonment. The Minister's Representative at the inquiry had argued that the equivalent offence was subparagraph 267(b) of the Criminal Code of Canada. However, upon hearing counsel to the applicant, the Minister's Representative changed her submissions, and conceded that the equivalent Canadian offence was not found in subparagraph 267(b). Therefore, in the submission of the Minister's Representative, the applicant was not described as alleged.

     However, the adjudicator disagreed with both parties, and held that the equivalent Canadian offence was subsection 267(b). Accordingly, the adjudicator found the applicant to be described as alleged, and determined that the applicant was a member of an inadmissible class. The adjudicator then confirmed the Deportation Order made out against the applicant.

THE ISSUE

     The determinative issue in this case is straight-forward: did the adjudicator correctly apply the test of equivalency?

DISCUSSION

The statutory provisions

     The impugned provision of the Immigration Act reads:

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

...

     The applicant was charged with the following offence, contrary to the Criminal Code of Minnesota:

609.222      ASSAULT IN THE SECOND DEGREE

Subd. 2, Dangerous weapon, substantial bodily harm, Whoever assaults another with a dangerous weapon and inflicts substantial bodily harm may be sentenced to imprisonment for not more than ten years or to a payment of a fine of not more than $20,000.00, or both.

Further, "substantial bodily harm" is defined as:

Subd. 7a. Substantial bodily harm, "Substantial bodily harm" means bodily injury which involves a temporary but substantial disfigurement, or which causes a temporary but substantial loss or impairment of the function of any bodily member or organ, or which causes a fracture to any bodily member.

     The Federal Court of Appeal, in Steward v. Canada (Minister of Employment and Immigration) (No. 1) (1988) 2 F.C. 363, set out the procedure to be used when deciding the question of equivalency of convictions. In deciding this question, it is the essential elements of the offence that are key. Equivalency can be determined three ways:

1.      By comparing the precise wording in each statute both through documents and, if available, through the evidence of an expert or experts in the foreign law, with a view to determining the essential elements of the respective offenses;

2.      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 elements 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; and

3.      By a combination of the two.

Analysis

     There is a conviction against the applicant in the United States. Whether this conviction falls within the purview of subparagraph 19(1)(c.1)(i) of the Immigration Act requires an examination of whether there is a comparable offence in Canada. If there is a comparable offence in Canada, and if the comparable offence carries with it a maximum term of imprisonment of ten years or more, then the offence falls within the provision. If the offence falls within the provision, then what is left is to determine whether the visa officer had reasonable grounds to believe that the applicant had been convicted outside of Canada of an equivalent offence.

     The impugned Immigration Act provision requires the adjudicator to investigate the criminal laws of both the foreign state and of Canada in order to determine whether there is an equivalent offence under Canadian law. This requires an examination of the essential elements of the foreign offence and the potentially equivalent Canadian offence. If there is a match of essential elements, then there is an equivalent offence.

     What offence did the adjudicator find to be the equivalent offence under Canadian law?

     The adjudicator's decision: The evidence that the adjudicator had before her included the following: a copy of the Minnesota provision under which the applicant was convicted; evidence that the applicant was sentenced to 20 days in jail and then to a period of probation that ended on November 29, 1996; the court order discharging the applicant from probation in respect of the offence, which order noted that the offence was deemed to be a misdemeanour under the provision of subsection 609.13 of the Minnesota State Statute; and a photocopy of subsection 609.13 of the Minnesota State Statute, which provision allows for a conviction for a felony to be deemed to be a conviction for a misdemeanour in certain circumstances (which circumstances were satisfied in the applicant's case).

     From the adjudicator's reasons, I can infer that she found that the essential elements of the Minnesota offence were a) an assault on another person with a dangerous weapon; and b) infliction of substantial bodily harm. The adjudicator then found that these essential elements were to be found in section 267 of the Criminal Code, which reads:

Everyone who in committing an assault a) carries, uses or threatens to use a weapon or an imitation thereof, or b) causes bodily harm to the complainant, is guilty of an indictable offence and liable to an imprisonment for a term not exceeding ten years, or an offence punishable on summary conviction and liable to an imprisonment for a term not exceeding 18 months.

[my emphasis]

The adjudicator then concluded that, although the equivalent Canadian offence is a hybrid offence, it was irrelevant whether the Crown would proceed by way of indictment or summarily. What mattered, in terms of the impugned provision, was the maximum term of ten years of imprisonment.

     The adjudicator determined that:

... the fact that the offence for which you have been convicted of and which has been considered as a misdemeanour and not as a felony is not relevant in my opinion for the purpose of equivalency.

     The applicant's Minnesota offence had been deemed to be a misdemeanour.

Equivalent offence: essential element of "bodily harm": s. 266 or s. 267?

     The adjudicator made no specific finding with respect to the definition of "bodily harm" as set out in the Criminal Code of Canada, and the way that it was treated in Minnesota law at the material time. Since the adjudicator had determined that "bodily harm" was an essential element of the offence, it was incumbent on her to address the definition of this term in Canadian and Minnesota law in order to establish equivalency. This, she did not do. In fact, at page 30 of the transcript of the inquiry, the adjudicator is noted as specifically stating that she would not look at the definition of bodily harm in terms of the Criminal Code of Canada.

     Using this approach, the adjudicator refused to exercise her jurisdiction, and committed a serious error of law. Having identified the essential elements of the offence, it was necessary actually to examine them, in order to determine whether they were equivalent or not. Although offenses committed in different jurisdictions may have similar wording, the provisions may, in fact, mean very different things. The adjudicator ought to have looked at what "bodily harm" meant according to the laws of both Minnesota and Canada. It is insufficient to merely identify a phrase in an offence when determining equivalency, as such phrases often carry with them complex legal definitions. Therefore, because the adjudicator did not consider what was or was not bodily harm as defined in the Canadian Criminal Code, it was not possible to equivalence a foreign conviction of assault causing bodily harm with either subsection 267(a) or 267(b) of the Canadian Criminal Code.

     Clearly, a mere comparison of the words of two provisions, without examining the legal content of those words, is insufficient in determining equivalency in the context of subparagraph 19(1)(c.1)(i) of the Immigration Act. Although the analysis required of the adjudicator in such provisions of the Immigration Act can become somewhat complex when examining more than the mere words of offenses, the exercise is not one of retrying the issue, as counsel for the respondent suggests.

     Counsel for the respondent makes the point that the relevant date for equivalency should be 1997 rather than 1993. If the adjudicator had at least applied the test correctly, the dates would be an issue for discussion. However, given my reasons above, there is no need to make a determination on what are the relevant temporal considerations in this case.

CONCLUSION

     The adjudicator refused to exercise her jurisdiction, and thereby incorrectly applied the test of equivalency. The above points are dispositive of this case and sufficient to send it back for re-determination. Accordingly, I would allow this application for judicial review, quash the adjudicator's decision, and refer the matter back to a different adjudicator for re-determination in accordance with the law.

OTTAWA, ONTARIO     

    

October 23, 1997.      J.F.C.C.