Calgary, Alberta, December 14, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE HENEGHAN
BETWEEN:
and
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Alex Grinshpon (the "Applicant") seeks judicial review of the decision of the Immigration and Refugee Board, Immigration Division (the "Board"), dated December 1, 2004. In its decision, the Board declared the Applicant to be inadmissible to Canada pursuant to paragraph 36(1)(b) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended (the "Act").
BACKGROUND
[2] The Applicant is a citizen of the Ukraine and of the United States of America. He is without status in Canada but has filed a claim for refugee protection. A report was prepared under subsection 44(1) of the Act in October 2003 and this matter was referred to an admissibility hearing in April 2004. The basis for the allegation of inadmissibility is serious criminality as discussed in paragraph 36(1)(b) of the Act.
[3] While living in the United States the Applicant had been indicted before a Grand Jury on a number of counts relating to fraudulent securities transactions, wire fraud and interstate commercial bribery. On March 7, 1999, the Applicant's counsel and the Assistant District Attorney reached a Joint Statement of Fact. On June 29, 2001, a Satisfaction of Judgment was issued in respect of the Applicant, acknowledging restitution in the amount of $15,000.00 and a special assessment in the amount of $150.00.
[4] A report, dated October 8, 2003, was prepared by the immigration officer dealing with the Applicant's case pursuant to subsection 44(1) of the Act. The immigration officer found that the Applicant's offences amounted to a conspiracy to commit fraud affecting the public market, contrary to paragraph 380(1)(a) and subsection 380(2) of the Criminal Code, R.S.C. 1985, c. C-46 (the "Criminal Code") and section 465 the offence of conspiracy, for which a maximum penalty of ten years' imprisonment may be imposed. The matter was referred to the Board on April 26, 2004, pursuant to subsection 44(2).
[5] The Board found that the Applicant was inadmissible on the grounds of serious criminality. It considered the Joint Statement of Fact that was developed and used in the criminal proceedings in the United States. It addressed its mind to the issue of equivalency between the offences that were the subject of criminal proceedings in the United States and the comparable sections of the Criminal Code. The Board rejected the Applicant's argument that the equivalent offence in Canada would be found in section 383 of the Criminal Code, for which the maximum term of imprisonment is five years.
[6] The Board acknowledged that, in comparing section 371 of the United States Code, Title 18 with the wording of section 465 of the Criminal Code, dealing with conspiracy, the wording is not the same. However, the documentary evidence demonstrated that the elements of conspiracy pursuant to paragraph 465(1)(c) had been established. The Board also concluded that the elements of paragraph 380(1)(a) and subsection 380(2) had been established.
[7] In the result, the Board found that the Applicant is inadmissible to Canada on the basis of serious criminality pursuant to paragraph 36(1)(b) of the Act. A deportation order was issued pursuant to paragraph 229(1)(a) of the Immigration and Refugee Protection Regulations, SOR/2002-227, (the "IRPA Regulations"). That Order will not be carried out until the Applicant's refugee claim has been finally determined.
[8] The Applicant raised two arguments in this application for judicial review. First, he argues that the Board erred in looking at additional documentary material, specifically the bill of indictment. He says that the Joint Statement of Fact takes priority over the bill of indictment and that the Board breached the principles of procedural fairness by looking at anything other than the Joint Statement of Fact.
[9] Second, the Applicant submits that the Board erred in finding equivalency between the offence for which he was convicted in the United States with the offences described in paragraph 380(1)(a) and subsection 380(2), pursuant to the Criminal Code. He argues that the Board should have considered the offence set out in section 383 of the Criminal Code.
DISCUSSION AND DISPOSITION
[10] In my opinion, the Applicant has failed to show that the Board committed a breach of procedural fairness or otherwise committed a reviewable error in the manner in which it assessed equivalency.
[11] The Board was entitled to look at the indictment issued in the United States, as well as at the Joint Statement of Fact. The indictment provides the context for the Joint Statement of Fact; the guilty plea was not entered in a vacuum. The Applicant was convicted in the United States of America of the offence of conspiracy and the offence is set out in the indictment.
[12] As well, subsection 173(d) of the Act grants broad discretion to a Board concerning the kinds of evidence that it may consider. Subsection 173(d) provides as follows:
| 173. The Immigration Division, in any proceeding before it, ¼ (d) may receive and base a decision on evidence adduced in the proceedings that it considers credible or trustworthy in the circumstances. |
173. Dans toute affaire dont elle est saisie, la Section de l'immigration : ¼ d) peut recevoir les éléments qu'elle juge crédibles ou dignes de foi en l'occurrence et fonder sur eux sa décision. |
[13] Similarly, I am satisfied that the Board properly determined equivalency. In Hill v. Canada (Minister of Employment and Immigration) (1987), 1 Imm. L.R. (2d) 1 (F.C.A.), the Federal Court held that equivalency between offences committed outside Canada and offences created under Canadian federal law may be determined in one of three ways, saying the following at page 9:
¼ 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; and three, by a combination of one and two.
[14] Here the Board looked at the substantive offence of which the Applicant had been convicted in the United States, that is the offence of conspiracy pursuant to section 371, Title 18, United States Code. That provision is replicated in the Board's decision as follows:
371 Conspiracy to commit offense or to defraud United States
If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.
If, however, the offense, the commission of which is the object of the conspiracy, is misdemeanour only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanour.
[15] The Board then considered the provision of the Criminal Code that deals with the offence of conspiracy, that is section 465. Paragraph 465(1)(c) is relevant and provides as follows:
| 465. (1) Except where otherwise expressly provided by law, the following provisions apply in respect of conspiracy: ... (c) every one who conspires with any one to commit an indictable offence not provided for in paragraph (a) or (b) is guilty of an indictable offence and liable to the same punishment as that to which an accused who is guilty of that offence would, on conviction, be liable; and ¼ |
465. (1) Sauf disposition expressément contraire de la loi, les dispositions suivantes s'appliquent à l'égard des complots : ¼ c) quiconque complote avec quelqu'un de commettre un acte criminel que ne vise pas l'alinéa a) ou b) est coupable d'un acte criminel et passible de la même peine que celle dont serait passible, sur déclaration de culpabilité, un prévenu coupable de cette infraction; ¼ |
[16] The Board went on to look at the substance of the offence for which the conviction was entered in the United States and concluded that paragraph 380(1)(a) and subsection 380(2) of the Criminal Code were relevant for the purpose of assessing equivalency. These provisions read as follows:
| 380. (1) Every one who, by deceit, falsehood or other fraudulent means, whether or not it is a false pretence within the meaning of this Act, defrauds the public or any person, whether ascertained or not, of any property, money or valuable security or any service, (a) is guilty of an indictable offence and liable to a term of imprisonment not exceeding ten years, where the subject-matter of the offence is a testamentary instrument or the value of the subject-matter of the offence exceeds five thousand dollars; or ... (2) Every one who, by deceit, falsehood or other fraudulent means, whether or not it is a false pretence within the meaning of this Act, with intent to defraud, affects the public market price of stocks, shares, merchandise or anything that is offered for sale to the public is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years. |
380. (1) Quiconque, par supercherie, mensonge ou autre moyen dolosif, constituant ou non un faux semblant au sens de la présente loi, frustre le public ou toute personne, déterminée ou non, de quelque bien, service, argent ou valeur : a) est coupable d'un acte criminel et passible d'un emprisonnement maximal de dix ans, si l'objet de l'infraction est un titre testamentaire ou si la valeur de l'objet de l'infraction dépasse cinq mille dollars; ¼ (2) Est coupable d'un acte criminel et passible d'un emprisonnement maximal de dix ans quiconque, par supercherie, mensonge ou autre moyen dolosif, constituant ou non un faux semblant au sens de la présente loi, avec l'intention de frauder, influe sur la cote publique des stocks, actions, marchandises ou toute chose offerte en vente au public. |
[17] In this case, the Applicant was convicted of the offence of conspiracy to defraud, in the United States. He is not challenging the Board's reliance upon section 465 of the Criminal Code which defines "conspiracy" but rather its reference to paragraph 380(1)(a) and subsection 380(2). Those provisions relate to the substantive offences that were the subject of the conspiracy. The reason for this argument is that the maximum term of imprisonment that may be imposed under these provisions is ten years. That is important, having regard to paragraph 36(1)(b) of the Act which provides as follows:
| 36. (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for ... (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 (emphasis added) |
36. (1) Emportent interdiction de territoire pour grande criminalité les faits suivants : ¼ b) être déclaré coupable, à l'extérieur du Canada, d'une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable d'un emprisonnement maximal d'au moins dix ans; (je souligne) |
[18] The maximum term of imprisonment that may be imposed in respect of a conviction involving section 383 of the Criminal Code is five years. Subsection 383(1) provides as follows:
| 383. (1) Every one is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years who, with intent to make gain or profit by the rise or fall in price of the stock of an incorporated or unincorporated company or undertaking, whether in or outside Canada, or of any goods, wares or merchandise, (a) makes or signs, or authorizes to be made or signed, any contract or agreement, oral or written, purporting to be for the purchase or sale of shares of stock or goods, wares or merchandise, without the bona fide intention of acquiring the shares, goods, wares or merchandise or of selling them, as the case may be, or (b) makes or signs, or authorizes to be made or signed, any contract or agreement, oral or written, purporting to be for the sale or purchase of shares of stock or goods, wares or merchandise in respect of which no delivery of the thing sold or purchased is made or received, and without the bona fide intention of making or receiving delivery thereof, as the case may be, but this section does not apply where a broker, on behalf of a purchaser, receives delivery, notwithstanding that the broker retains or pledges what is delivered as security for the advance of the purchase money or any part thereof. ... |
383. (1) Est coupable d'un acte criminel et passible d'un emprisonnement maximal de cinq ans quiconque, dans le dessein de réaliser un gain ou profit par la hausse ou la baisse des actions d'une compagnie ou entreprise constituée ou non en personne morale, soit au Canada, soit à l'étranger, ou d'effets, de denrées ou de marchandises, selon le cas : a) conclut ou signe, ou donne l'autorisation de conclure ou de signer, un marché ou une convention, oral ou écrit, censé porter sur l'achat ou la vente d'actions ou d'effets, de denrées ou de marchandises, sans avoir de bonne foi l'intention d'acquérir ou de vendre, selon le cas, ces actions, effets, denrées ou marchandises; b) conclut ou signe, ou donne l'autorisation de conclure ou de signer, un marché ou une convention, oral ou écrit, censé porter sur la vente ou l'achat d'actions ou d'effets, de denrées ou de marchandises, à l'égard desquels aucune livraison de la chose vendue ou achetée n'est opérée ou reçue, et sans avoir de bonne foi l'intention de les livrer ou d'en recevoir livraison, selon le cas. Le présent article ne s'applique pas lorsqu'un courtier, au nom d'un acheteur, reçoit livraison, même si le courtier garde ou engage ce qui est livré, en garantie de l'avance du prix d'achat ou d'une partie de ce prix. ¼ |
[19] However, the issue of equivalency is to be assessed relative to the offence, not in respect of the punishment that may be imposed. In this case, the Board considered the documentary evidence relating to the commission of the offence in the United States. The Board was authorized to take that approach in determining whether there was equivalency between the essential ingredients of the offences both in the United States and in Canada, pursuant to the Criminal Code. In Hill, supra, the Federal Court of Appeal expressly approved such an analysis. The Board was satisfied that the offence in Canada which was equivalent to the offence for which the Applicant was convicted in the United States is the one described in paragraph 380(1)(a) and subsection 380(2). Having regard to the record that was before the Board and the Court, this result is reasonable.
[20] In the result, I am satisfied that the Board did not commit a reviewable error and this application for judicial review is dismissed. There is no question for certification arising.
ORDER
The application for judicial review is dismissed. There is no question for certification arising.
JUDGE
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-9959-04
STYLE OF CAUSE: ALEX GRINSHPON
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: September 7, 2005
REASONS FOR ORDER
AND ORDER BY: The Honourable Madam Justice Heneghan
DATED: December 14, 2005
APPEARANCES BY:
Mr. Frederick S. Wang FOR THE APPLICANT
Mr. Ian Hicks FOR THE RESPONDENT
SOLICITORS OF RECORD:
Bay Street Immigration
Lawyers, P.C.
Toronto, Ontario FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General
of Canada FOR THE RESPONDENT