Date: 20031002
Docket: IMM-5052-01
Citation: 2003 FC 1127
BETWEEN:
ARTHUR FROOM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
KELEN J.:
[1] This is an application for judicial review of a decision of the Adjudication Division of the Immigration and Refugee Board, dated October 17, 2001, to issue a conditional deportation order against the applicant because he is a person described in paragraph 27(2)(a) and subparagraph 19(1)(c.1)(ii) of the former Immigration Act, R.S.C. 1985, c. I-2 as amended (the "Act"). The adjudicator found the applicant to be a member of an inadmissible class, namely a person, who there are reasonable grounds to believe, has committed outside of Canada an offence which would constitute an offence in Canada punishable by a maximum term of imprisonment of ten years or more.
FACTS
Background
[2] The applicant is a citizen of the United States of America. He is neither a Canadian citizen nor a permanent resident of Canada. The applicant and his wife, Sonia Lafontaine, are shareholders in the Lafontaine-Riche Cosmetic Surgery and Skin Care Centre in Toronto and other affiliated clinics in the United States, including one in New York City. The applicant's wife is a Canadian citizen and after their marriage the couple split their time between Canada and the United States. The applicant's most recent entry to Canada was in late February 1998 as a visitor. His wife remained in the United States.
U.S. Warrants
[3] Two warrants for the applicant's arrest (in the name of the "Arthur Kissel a.k.a. Arthur Fromme") were issued by the United States on February 27, 1998 and March 20, 1998 respectively. The first warrant alleges the applicant violated United States Code Title 18, Section 1341 ("18 U.S.C. § 1341"), while the second alleges a violation of United States Code Title 18, Section 371 ("18 U.S.C § 371"). Those two sections are set out here:
Sec. 1341. Frauds and swindles
Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin, obligation, security, or other article, or anything represented to be or intimated or held out to be such counterfeit or spurious article, for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or deposits or causes to be deposited any matter or thing whatever to be sent or delivered by any private or commercial interstate carrier, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail or such carrier according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be fined under this title or imprisoned not more than five years, or both. If the violation affects a financial institution, such person shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both.
[...]
Sec. 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 a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor.
[4] The warrants are predicated on a "Sealed Complaint" dated February 27, 1998 from a Postal Inspector with the United States Postal Inspection Services named Andrew S. Trilling and an Indictment issued by a Grand Jury from the United States District Court, Southern District of New York. These documents allege that the applicant and his wife conspired with other individuals to
submit fraudulent claims to health insurance companies in the United States. It is alleged in these documents that health care claims were submitted indicating that medically necessary procedures
had been performed by a physician, when in fact the procedures were not performed by a physician nor were they medically necessary. This was done to trigger the insurance companies' liability and the amounts in question ranged from $5,800 to $45,000 per procedure. While the applicant did not perform any of the procedures in question, it is alleged the applicant was responsible for filing the insurance claims.
U.S. Alerted the Toronto Police
[5] American authorities alerted Toronto Police as to the presence of the applicant in Toronto shortly after the issuance of the first warrant. In a fax dated March 9, 1998, Postal Inspector Trilling informed Sergeant Dee of the Toronto Police's fugitive squad of the clinic's address and the applicant's Toronto residential address. The Toronto Police decided to arrest the applicant on an allegation that he had engaged in employment at the clinic in Toronto without proper authority. The police visited the clinic on several occasions but did not encounter the applicant. By claiming that they wanted to meet with him to review photographs for a burglary investigation, the police managed to get the applicant to attend the clinic in late April 1998. When the applicant showed up, he was arrested by police on an immigration warrant for working illegally.
The Inquiry
[6] On April 28, 1998 a report for the applicant was issued under the Act. It alleged the applicant was inadmissible by reason of paragraph 27(2)(a) because he was a person described in subparagraphs 19(1)(c.1)(ii), 19(2)(a.1)(i) and (ii). It also alleged he was inadmissible by reason of paragraphs 27(2)(b) and (g) of the Act. The allegation concerning subparagraph 19(2)(a.1)(i) was dropped at the beginning of the inquiry which commenced on April 28, 1998.
[7] The inquiry required 17 sittings from April 28, 1998 to October 17, 2001, and involved several witnesses in addition to the applicant. There were 39 exhibits filed by the parties.
[8] One of those exhibits was a letter to Canadian immigration enforcement dated September 12, 2000 from United States Department of Justice Attorney Mary Jo White. Ms. White was the lawyer responsible for the prosecution of the applicant's wife and others involved in the clinic in New York. She informed immigration enforcement that on July 12, 2000 that the applicant's wife had been convicted in the United States on 17 charges relating to her participation in the scheme to defraud insurance companies. The charges were "1 count of conspiracy to commit mail fraud, 8 counts of mail fraud, 1 count of health care fraud, 2 counts of witness tampering, 1 count of conspiracy to engage in illegal financial transactions and 4 counts of engaging in illegal financial transactions." Ms. White also stated that "Arthur Kissel, a/k/a "Arthur Froom," is charged in the same indictment as LaFontaine and is charged with all of the same crimes, except for one of the witness tampering counts".
Extradition Proceedings
[9] On July 3, 2001, the Minister of Justice authorized the Attorney General of Canada to proceed and seek an order for committal of the applicant pursuant to section 15 of the Extradition Act, S.C. 1999, c. 18. This "authority to proceed" with extradition is the subject of a separate and independent Federal Court application by the applicant to set aside the extradition proceedings.
RELEVANT LEGISLATION
Immigration Act
[10] The relevant portions of paragraph 27(2) state:
Reports on visitors and other persons
27. (2) An immigration officer or a peace officer shall, unless the person has been arrested pursuant to subsection 103(2), forward a written report to the Deputy Minister setting out the details of any information in the possession of the immigration officer or peace officer indicating that a person in Canada, other than a Canadian citizen or permanent resident, is a person who
Rapports défavorables : autres cas
27. (2) L'agent d'immigration ou l'agent de la paix doit, sauf si la personne en cause a été arrêtée en vertu du paragraphe 103(2), faire un rapport écrit et circonstancié au sous-ministre de
(a) is a member of an inadmissible class, other than an inadmissible class described in paragraph 19(1)(h) or 19(2)(c);
has engaged or continued in employment in Canada contrary to this Act or the regulations;
(g) came into Canada or remains in Canada with a false or improperly obtained passport, visa or other document pertaining to that person's admission or by reason of any fraudulent or improper means or misrepresentation of any material fact,
whether exercised or made by himself or by any other person;
a) appartient à une catégorie non admissible, autre que celles visées aux alinéas 19(1)h) ou 19(2)c);
b) a occupé un emploi au Canada en violation de la présente loi ou de ses règlements;
g) est entrée au Canada ou y demeure soit sur la foi d'un passeport, visa -- ou autre document relatif à son admission -- faux ou obtenu (b)
irrégulièrement, soit par des moyens frauduleux ou irréguliers ou encore par suite d'une fausse indication sur un fait important,
même si ces moyens ou déclarations sont le fait d'un tiers;
[11] The relevant inadmissible classes described in paragraph 19(1) are set out below:
Inadmissible persons
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
(ii) have committed outside Canada an act or omission that constitutes an offence under the laws of the place where the act or omission occurred and 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,
[...]
19. (1) Les personnes suivantes appartiennent à une catégorie non admissible :
c.1) celles dont il y a des motifs raisonnables de croire qu'elles ont, à l'étranger :
(ii) soit commis un fait -- acte ou omission -- qui constitue une infraction dans le pays où il a été commis et qui, s'il était commis au Canada, constituerait une infraction qui pourrait être punissable, aux termes d'une loi fédérale, d'un emprisonnement maximal égal ou supérieur à dix ans, sauf si elles peuvent justifier auprès du ministre de leur réadaptation et du fait qu'au moins cinq ans se sont écoulés depuis la commission du fait;
[12] The relevant inadmissible classes described in paragraph 19(2) are set out below:
Inadmissible classes where entry permitted
(2) No immigrant and, except as provided in subsection (3), no visitor shall be granted admission if the immigrant or visitor is a member of any of the following classes:
(a.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 by way of indictment under any Act of Parliament by a maximum term of imprisonment of less than ten years, or
(ii) have committed outside Canada an act or omission that constitutes an offence under the laws of the place where the act or omission occurred and that, if committed in Canada, would constitute an offence that may be punishable by way of indictment under any Act of Parliament by a maximum term of imprisonment of less than ten years,
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;
Autorisation de séjour à des personnes non admissibles
(2) Appartiennent à une catégorie non admissible les immigrants et, sous réserve du paragraphe (3), les visiteurs qui :
a.1) sont des personnes dont il y a des motifs raisonnables de croire qu'elles ont, à l'étranger:
(i) soit été déclarées coupables d'une infraction qui, si elle était commise au Canada, constituerait une infraction qui pourrait être punissable, aux termes d'une loi fédérale, par mise en accusation, d'un emprisonnement maximal de moins de dix ans, sauf si elles peuvent justifier auprès du ministre de leur réadaptation et du fait qu'au moins cinq ans se sont écoulés depuis l'expiration de toute peine leur ayant été infligée pour l'infraction,
(ii) soit commis un fait -- acte ou omission -- qui constitue une infraction dans le pays où il a été commis et qui, s'il était commis au Canada, constituerait une infraction qui pourrait être punissable, aux termes d'une loi fédérale, par mise en accusation, d'un emprisonnement maximal de moins de dix ans,
sauf si elles peuvent justifier auprès du ministre de leur réadaptation et du fait qu'au moins cinq ans se sont écoulés depuis la commission du fait;
[13] Paragraph 465(1)(c) of the Criminal Code states:
Conspiracy
465. (1) Except where otherwise expressly provided by law, the following provisions apply in respect of conspiracy:
(a) every one who conspires with any one to commit murder or to cause another person to be murdered, whether in Canada or not, is guilty of an indictable offence and liable to a maximum term of imprisonment for life;
(b) every one who conspires with any one to prosecute a person for an alleged offence, knowing that he did not commit that offence, is guilty of an indictable offence and liable
(i) to imprisonment for a term not exceeding ten years, if the alleged offence is one for which, on conviction, that person would be liable to be sentenced to imprisonment for life or for a term not exceeding fourteen years, or
(ii) to imprisonment for a term not exceeding five years, if the alleged offence is one for which, on conviction, that person would be liable to imprisonment for less than fourteen years;
(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
(d) every one who conspires with any one to commit an offence punishable on summary conviction is guilty of an offence punishable on summary conviction.
Complot
465. (1) Sauf disposition expressément contraire de la loi, les dispositions suivantes s'appliquent à l'égard des complots_:
a) quiconque complote avec quelqu'un de commettre un meurtre ou de faire assassiner une autre personne, au Canada ou à l'étranger, est coupable d'un acte criminel et passible de l'emprisonnement à perpétuité;
b) quiconque complote avec quelqu'un de poursuivre une personne pour une infraction présumée, sachant qu'elle n'a pas commis cette infraction, est coupable d'un acte criminel et passible_:
(i) d'un emprisonnement maximal de dix ans, si la prétendue infraction en est une pour laquelle, sur déclaration de culpabilité, cette personne serait passible de l'emprisonnement à perpétuité ou d'un emprisonnement maximal de quatorze ans,
(ii) d'un emprisonnement maximal de cinq ans, si la prétendue infraction en est une pour laquelle, sur déclaration de culpabilité, cette personne serait passible d'un emprisonnement de moins de quatorze ans;
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;
d) quiconque complote avec quelqu'un de commettre une infraction punissable sur déclaration de culpabilité par procédure sommaire est coupable d'une infraction punissable sur déclaration de culpabilité par procédure sommaire.
[14] Subsection 380(1) and section 381 of the Criminal Code state:
Fraud
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
(b) is guilty
(i) of an indictable offence and is liable to imprisonment for a term not exceeding two years, or
(ii) of an offence punishable on summary conviction,
where the value of the subject-matter of the offence does not exceed five thousand dollars.
[...]
Using mails to defraud
381. Every one who makes use of the mails for the purpose of transmitting or delivering letters or circulars concerning schemes devised or intended to deceive or defraud the public, or for the purpose of obtaining money under false pretences, is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.
Fraude
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;
b) est coupable_:
(i) soit d'un acte criminel et passible d'un emprisonnement maximal de deux ans,
(ii) soit d'une infraction punissable sur déclaration de culpabilité par procédure sommaire,
si la valeur de l'objet de l'infraction ne dépasse pas cinq mille dollars.
[...]
Emploi de la poste pour frauder
381. Est coupable d'un acte criminel et passible d'un emprisonnement maximal de deux ans quiconque se sert de la poste pour transmettre ou livrer des lettres ou circulaires concernant des projets conçus ou formés pour leurrer ou frauder le public, ou dans le dessein d'obtenir de l'argent par de faux semblants.
The Adjudicator's Decision
[15] On October 17, 2001 the adjudicator rendered her decision in which she found the applicant to be a member of an inadmissible class.
[16] The first issue the adjudicator dealt with was the illegal work allegation. She found the evidence concerning the allegation to be weak and concluded that the allegation that the applicant was a person described in paragraph 27(2)(b) had not been established, i.e. a person who has engaged in employment in Canada contrary to the Immigration Act.
[17] The adjudicator then turned to the allegation that the applicant was a person described in paragraph 27(2)(g), i.e. who came into Canada by reason of any fraudulent or improper means or misrepresentation of any material fact. It was alleged that the applicant misrepresented the purpose of his visit to Canada on the occasion of his last admission to Canada in February 1998 by not informing authorities of the ongoing investigation in the United States. The adjudicator concluded
there was nothing in the evidence demonstrating that the applicant had the intention to stay in Canada longer than temporarily when he arrived. While the applicant was aware of the investigation, the indictment was not issued until after his arrival in Canada and there were no restrictions upon his ability to travel. The adjudicator concluded that at best there was a positive obligation on the applicant to report the investigation, but that this was not sufficient to render him inadmissible.
[18] Finally, the adjudicator dealt with the allegation of inadmissibility based on subparagraph 19(1)(c.1)(ii), i.e. a person, who there are reasonable grounds to believe, has committed outside Canada an act that constitutes an offence under the laws of the place where the act occurred and that, if committed in Canada would constitute an offence that may be punishable by a maximum term of imprisonment of ten years or more. She conducted a two-part analysis. First, she identified the equivalent offences under Canadian law and then evaluated the evidence to determine if there existed reasonable grounds to believe the applicant had committed the offences in question. The adjudicator found the equivalent of 18 U.S.C. § 371 was paragraph 465(1)(c) of the Criminal Code, R.S.C. 1985, c. C-34. She was satisfied that if there were reasonable grounds to believe the applicant had committed the offence in Canada, the evidence would also establish the Canadian equivalent. The adjudicator rejected the applicant's attempt to rely upon Kowbel v. The Queen [1954] S.C.R. 498, which stands for the proposition that a husband and wife alone cannot be guilty of conspiracy, because the Sealed Complaint and the Indictment both indicated the conspiracy also involved other persons.
[19] The adjudicator noted paragraph 465(1)(c) of the Criminal Code speaks of a conspiracy to commit an indictable offence as opposed to a conspiracy to defraud as is the case in 18 U.S.C. § 371. Nonetheless, the adjudicator found the provisions to be equivalents because the conspiracy was designed to effect an offence contrary to 18 U.S.C. § 1341 and both of the possible Canadian equivalents of that section were indictable offences. The possible equivalents identified by the adjudicator were subsection 380(1) and section 381 of the Criminal Code.
[20] Having identified the Canadian-law equivalents, the adjudicator reviewed the evidence concerning the applicant's conduct. She noted the applicant admitted to having set up a computer based billing system for the clinics to maximize the insurance companies, but he denied committing fraud and claimed the charges were politically motivated. The adjudicator reviewed the evidence contained in the Sealed Complaint and in the Grand Jury Indictment. Mr. Froom, a.k.a. Kissel and his wife and others conspired to submit fraudulent claims to health care insurance companies. The evidence is that Mr. Froom "is responsible, in whole and in part, for the actual filing of the claims to the insurance companies." The Adjudicator stated at page 11 in her decision:
... the evidence establishes that he (Mr. Froom) has knowledge of what services are provided and by whom at the clinics and that he is aware that some procedures are not subject to health insurance claim liability. It is acknowledged that his wife has been subject to criminal court proceedings in the U.S. on matters where she is co-accused with Mr. Froom and others, and that she has been found guilty of offences including conspiracy to commit mail and health care fraud. He denies committing any fraud, and claims that the charges against him are politically motivated.
His oral evidence however has not in my opinion been forthright and credible in regards to his involvement in clinic business. He has not answered many questions in a straight forward manner addressing the question asked with a direct answer, but instead on many occasions replied to a question with a question and had to be asked several times before addressing the issue being asked about ... credibility is often at issue throughout his oral evidence.
I am satisfied, having reviewed the evidence and the relevant case law and submissions, that there are reasonable grounds to believe that Mr. Froom, (together with his wife and others, committed, in the United States) the offence ... of conspiracy "to commit an offence" of mail fraud or to defraud the United States or any agency thereof, in any manner or for any purpose ... covered by the extracts from the U.S. statutes provided as evidence and as set out in the details of the Grand Jury indictment.
[21] For these reasons, the adjudicator concluded there was sufficient evidence to conclude the applicant was a person described in paragraph 27(2)(a) coupled with subparagraph 19(1)(c.1)(ii) of the Act, i.e. a member of an inadmissible class, specifically a person, who there are reasonable grounds to believe, has committed outside Canada an offence which would constitute an offence in Canada punishable by a maximum term or imprisonment of ten years or more.
ISSUES
[22] The applicant is challenging the adjudicator's conclusion that he is a person described in subparagraph 19(1)(c.1)(ii) of the Act. The principal issues upon which this application turn are as follows:
23. Did the adjudicator err by failing to make a clear credibility finding supported by adequate reasons?
24. Is the Minister's use of the deportation procedure an abuse of process because this is a case of disguised extradition?
25. Did the adjudicator's acceptance of Ms. White's letter dated September 12, 2000 constitute a breach of natural justice?
26. Did the adjudicator err in her equivalency finding?
27. Did the adjudicator err in finding that the applicant committed the offence because the evidence of the offences is insufficiently detailed?
ANALYSIS
1. Credibility
[23] The applicant contends the adjudicator erred in her credibility finding because she failed to provide clear reasons for rejecting the applicant's credibility.
[24] I do not agree with the applicant's arguments with respect to credibility. The adjudicator indicated in her reasons what portions of the applicant's testimony she believed and what parts she felt were not credible. At page 6 of the decision, she gave her view of the applicant's credibility with respect to the allegation involving paragraph 27(2)(g) of the Act:
The best that can be said here in my view is that his evidence does lack credibility at times and that perhaps he had a "positive duty", that he did not discharge, to report to the Examining Officer that there was some sort of investigation that was underway in the United States . . .
She then made a separate credibility finding with respect to the allegations involving paragraph 19(1)(c.1)(ii) of the Act:
His oral evidence however has not in my opinion been forthright and credible in regards his involvement in [the] clinic business. He has not answered many questions in a straightforward manner addressing the question with a direct answer, but instead on many occasions replied with a question and had to be asked several times before addressing the issue being asked about.
[25] The crux of the adjudicator's negative credibility finding with respect to this aspect of the applicant's testimony was his evasiveness, which is an appropriate ground upon which to base a credibility finding. The record in the case at bar provides ample support for the adjudicator's finding. While being cross-examined by the Case Presenting Officer (the "CPO"), the applicant avoided giving direct answers and often responded in an aggressive manner to the CPO's questions.
[26] In Hilo v. Canada (Minister of Employment and Immigration) (1991),15 Imm. L.R. (2d) 199 at para. 6 the Federal Court of Appeal held:
In my view, the Board was under a duty to give its reasons for casting doubt upon the appellant's credibility in clear and unmistakable terms. The Board's credibility assessment is defective because it is couched in vague and general terms.
In Hilo the appellant was the only witness who gave testimony before the Board. In the case at bar, the adjudicator heard from several witnesses and considered 39 exhibits. The adjudicator's decision did not rest on the credibility of the applicant, rather it rested on extensive other evidence. Accordingly, the credibility of the applicant was not the issue upon which this case turned. In any event, I am satisfied that the adjudicator fulfilled her duty to give adequate reasons for "casting doubt" upon the applicant's credibility in clear and unmistakable terms.
2. Disguised extradition and abuse of process
(a) Applicant's position
[27] The applicant argues the Minister's attempt to deport him is an abuse of process because it is a case of disguised extradition. He argues that the police used entrapment to arrest him on an illegal work allegation, when in fact they were acting as a proxy for the American authorities who sought the applicant as a fugitive criminal. To support this argument, the applicant relies upon the fax dated March 9, 1998 from Postal Inspector Trilling to Sergeant Dee informing him of the clinic's address and the applicant's Toronto address. He claims this demonstrates the deportation process was guided by American authorities as a way to circumvent the extradition process.
(b) Improper purpose or bad faith
[28] To support a disguised extradition argument, an applicant must show an improper purpose or bad faith on the part of the government. The deportation proceedings must be shown to be a sham or not bona fide. It is necessary to show that the Minister did not genuinely consider it in the public interest to expel Mr. Froom. Mr. Froom has the heavy onus of showing that the purpose of the deportation proceedings is to surrender him as a fugitive criminal to a state because it asked for him, not because Mr. Froom's presence is not conducive to the public good. As stated in Laforest's Extradition to and from Canada, 3rd Edition, by Ann Warner Laforest, published in 1991 at pages 42 to 43:
... as such, case law has consistently determined that unless there is clear evidence establishing that the Minister did not genuinely consider it in the public interest to order the fugitive's deportation, any challenge to the validity of the deportation procedure will fail ... A successful challenge would require either a finding that the Minister has ordered deportation proceedings for the purpose of avoiding extradition proceedings, or a finding that the foreign state which the individual is to be deported will act in a shocking or oppressive manner. For obvious reasons, in the absence of very persuasive evidence, a Court will be reluctant to make either of these findings.
This passage was cited with approval by Rothstein J. (as he then was) in Halm v. The Minister of Employment and Immigration, [1996] 1 F.C. 547 at paragraph 22.
[29] The principles used to determine if deportation constitutes disguised extradition were set out in Shepherd v. Canada (Minister of Employment and Immigration) (1989), 70 O.R. (2d) 766 (H.C.J.), aff'd (1989), 70 O.R. (2d) 765 (C.A.), at 775 as follows:
1. If the purpose of the exercise is to deport the person because his presence is not conducive to the public good, that is a legitimate experience of the power of deportation.
2. If the purpose is to surrender the person as a fugitive criminal to a state because it asked for him, that is not a legitimate exercise of the power of deportation.
3. It is open to the courts to inquire whether the purpose of the government was lawful or otherwise.
4. The onus is on the party alleging an unlawful exercise of power. It is a heavy onus.
5. To succeed, it would be necessary to hold that the Minister did not genuinely consider it in the public interest to expel the person in question.
6. The adoption of the Charter has not lessened the onus.
[30] The Immigration Act provides that a person who there are reasonable grounds to believe has committed a serious criminal offence is not admissible to Canada. On this basis, the respondent reasonably would consider it in the public interest to order the fugitive's deportation.
[31] In Halm, supra, Justice Rothstein explained the difference between deportation and extradition. He held at page 561:
Initially, I would observe that the argument of counsel for the applicant misses the basic difference between deportation and extradition. Deportation occurs when a state wishes to expel a person. Extradition occurs when a state wishes to retrieve a person, and can only be carried out when a request for extradition has been received. Canada cannot be precluded from taking steps to deport an individual merely because the effect of deportation may be that the individual faces greater sanctions in the country to which he is deported than if he is extradited. Canada has no control over whether a foreign state wishes a person extradited, and the Government of Canada cannot be precluded from acting in the public interest to deport undesirable aliens.
[32] Similarly, in Canada (Minister of Citizenship and Immigration) v. Legault 42 IMM. L.R. (2d) 192, the Federal Court of Appeal upheld a conditional deportation order against an American citizen where the adjudicator had reasonable grounds to believe that the American citizen had committed a serious offence. The American citizen had been the subject of extradition proceedings which were refused by the Quebec Superior Court. The U.S. citizen was charged with similar offences as those against Mr. Froom, including mail fraud. The Federal Court of Appeal did not
consider that the deportation proceedings, after the extradition proceedings had failed, constituted an abuse of process as a disguised extradition. This reinforces the principle that deportation of a fugitive is not a disguised extradition unless the applicant can prove bad faith, or an improper purpose.
(c) Applicant had legal status as a visitor
[33] The applicant relies upon the fact that Mr. Froom had legal status as a visitor to Canada when the Immigration Inquiry commenced. That a person is a legal visitor to Canada does not change the fact that it is in the public interest that such a suspected criminal be deported regardless of whether the United States requests his extradition. In any event, the United States has now requested Mr. Froom's extradition and these extradition proceedings are underway, subject to legal challenge by Mr. Froom in this Court, quite separate and apart from this case.
(d) Police conduct
[34] The applicant has compared the conduct of the police in the case at bar to Bennett v. Horseferry Road Magistrates Court, [1994] 1 A.C. 42 (H.L.), where the court stayed a criminal prosecution because English police circumvented established extradition procedures to procure the defendant's presence in England. A brief discussion of the facts of Bennett demonstrates the
applicant is comparing apples to oranges. Bennett was a New Zealander wanted in England for fraud related offences. When the English police traced the defendant to South Africa, they deliberately decided not to pursue extradition procedures and colluded with the South African police to forcibly return Bennett to England. The relevant facts can be found at paragraph 3 of the Bennett decision:
It is the appellant's case that, having taken the decision not to employ the extradition process, the English police colluded with the South African police to have the appellant arrested in South Africa and forcibly returned to this country against his will. The appellant deposes that he was arrested by two South African detectives on 28 January 1991 at Lanseria South Africa, who fixed a civil restraint order on the helicopter on behalf of the UK finance company and told the appellant that he was wanted by Scotland Yard and he was being taken to England. Thereafter he was held in police custody until he was placed on an aeroplane in Johannesburg ostensibly to be deported to New Zealand via Taipei. At Taipei when he attempted to disembark he was restrained by two men who identified themselves as South African police and said that they had orders to return him to South Africa and then to the United Kingdom and hand him over to Scotland Yard. He was returned to South Africa and held in custody until he was placed, handcuffed to the seat, on a flight from Johannesburg on 21 February arriving at Heathrow on the morning of 22 February when he was immediately arrested by three police officers including Detective Sergeant Davies. He further deposes that he was placed on this flight in defiance of an order of the Supreme Court of South Africa obtained by a lawyer on his behalf on the afternoon of 21 February.
[35] The difference between Bennett and the case at bar is immediately apparent from this passage. The police in the case at bar did not resort to the same form of dishonest tactics employed by the English and South African police forces in Bennett. Unlike Bennett, this is not a case where deportation to the defendant's home country is being used solely as a pretext to extradite him to a third country. The Canadian authorities involved in the case at bar, unlike the South African police in Bennett, did not engage in forcible abduction in a foreign jurisdiction or disobey a legitimate court
order when they arrested the applicant. In addition, while Bennett was whisked off to England by force, the applicant has been afforded an opportunity to contest his deportation to the United States before the Adjudication Division. After a review of the evidence, the adjudicator determined that the Canadian authorities have a legitimate interest in expelling the applicant from this country.
[36] The only resemblance between this case and Bennett is the existence of communications between Canadian and American authorities concerning the applicant's whereabouts. This alone is insufficient to prove this was a case of disguised extradition. The existence of similar communications in Halm was found by Rothestein J. not to be evidence of bad faith or improper motive. He stated at paragraph 25:
The fact that the United States wanted the applicant back or that there were communications between U.S. and Canadian officials is also not evidence of bad faith or improper motive. Nor does the issuance of a conditional request for extradition by the United States indicate that anything improper was done by Canada in taking steps to deport the applicant. Indeed, counsel does not argue that the applicant is not undesirable or that he should not be forced to leave Canada.
The remarks of Rothestein J. are directly applicable in the case at bar. The fax from March 9, 1998 alone is not enough to discharge the heavy onus upon the applicant.
[37] The cases cite many examples of cooperation between Canadian and American officials which lead to the legitimate and proper deportation of a criminal, rather than his extradition.
[38] In Shepard, the Ontario Court of Appeal quoted with approval from Justice Rouleau in another case where a person had been found guilty of an offence in the United States and fled to Canada. He was discovered by Canadian police at the instigation and with the insistence of the FBI. The U.S. made no request for extradition and he was subject to a deportation proceeding. In Shepard, at page 776 Justice Rouleau was quoted with approval as follows:
The mere fact that the R.C.M.P. was unaware of the petitioner's illegal presence in Canada until alerted by the FBI, and that both forces cooperated in locating him, and that the arrest was carried out by members of the (R.C.M.P.) and not members of the immigration branch, are not sufficient to prove that the Minister did not genuinely consider it in the public interest to order his deportation. This challenge to the validity of the deportation proceedings must fail.
The Ontario Court of Appeal did not consider the deportation of a U.S. fugitive be a disguised form of extradition because there was no evidence that the Immigration Minister did not genuinely consider it in the public interest to order the deportation of this American fugitive. This case is on all fours with Mr. Froom's case.
[39] The applicant also relies upon the circumstances surrounding his arrest to show this is a case of disguised extradition. He claims he was lured to the clinic and entrapped in order to create a false pretext upon which to facilitate his arrest. His allegation is not supported by either the law or the facts. Entrapment occurs when police provide an individual with an opportunity to commit an offence without acting on a reasonable suspicion that this person is already engaged in criminal
activity, and then induce the commission of an offence: R. v. Mack, [1988] 2 S.C.R. 903. Neither of these criteria is present in the case at bar. There was a reasonable suspicion the applicant had already engaged in criminal acts. At the hearing Sergeant Dee testified that the police had an informant who observed the applicant working in the clinic. The premise for the applicant's attendance at the clinic on the day of his arrest was to review photographs for a burglary investigation. This does not qualify as an inducement to commit an illegal act. In luring the applicant to the clinic, the police were acting on pre-existing evidence of his illegal conduct and were trying to facilitate his arrest.
[40] Accordingly, the applicant has not discharged the heavy onus upon him of showing that the Canadian authorities have pursued deportation for illegitimate purposes.
3. Natural Justice
[41] The applicant argues his right to natural justice was breached by the introduction of a letter
dated September 12, 2000 from Ms. White, in which she wrote of his wife's conviction on the same criminal charges against the applicant. He argues the evidence was irrelevant and should not have been admitted because it did not concern him. According to the applicant, the prejudicial effect of the entry of these allegations was enormous.
[42] The respondent contends the adjudicator was free to admit this evidence as she was not bound by any technical or legal rules of evidence. I agree. Under subsection 80.1(5) of Act the adjudicator was allowed to receive any evidence she considered credible or trustworthy:
Rules of evidence
80.1. (5) An adjudicator is not bound by any legal or technical rules of evidence and, in any proceedings, may receive and base a decision on evidence adduced in the proceedings and considered credible or trustworthy in the circumstances of the case.
Preuve
80.1. 5) L'arbitre n'est pas lié par les règles légales ou techniques de présentation de la preuve. Il peut recevoir les éléments qui lui sont présentés dans le cadre des procédures instruites devant lui et qu'il considère comme crédibles ou dignes de foi en l'occurrence et fonder ses conclusions sur eux.
[43] As can be plainly seen from a reading of this subsection, the formal rules of evidence are not applicable to the adjudication. The evidence in question meets the threshold set out in subsection 80.1(5). It originated from a United States Attorney who was directly involved in the American criminal proceedings and there is no reason to believe this evidence was not credible or trustworthy. While some of the evidence in question may not have been admissible in a criminal trial, evidence on the status of the ongoing investigation in the United States into the applicant and others involved in the clinic was sufficiently connected to the allegation in question to be admitted in an immigration adjudication. Moreover, the applicant had ample time to respond to this new evidence before the conclusion of the Inquiry several months later. Accordingly, the decision will not be set aside on this ground.
4. Equivalency
[44] The applicant submitted that had he committed the acts in question in Canada, no crime would have been committed. The applicant called a Toronto solicitor who practices criminal law, David Cousins, to give evidence on these issues before the adjudicator. Mr. Cousins stated this would not have been a criminal offence in Canada because disputes between health care providers and insurers rarely lead to criminal prosecutions in Canada. Moreover, he testified that it is legal in Canada for medical doctors to delegate services. As such, the performance of medical procedures by the applicant's wife in New York would not have been an offence in Canada and consequently, there would be no offence the applicant could have conspired to commit.
[45] The applicant's argument that medical doctors are allowed to delegate services in Canada is a distortion of the alleged offences in the case at bar. The applicant is accused of conspiracy to commit fraud, not conspiracy to improperly delegate medical services. The important question is whether his misrepresentations qualify as an offence in Canada; that the underlying act about which he made the misrepresentations does not constitute an offence in Canada is irrelevant.
[46] This leads to the applicant's argument that the misrepresentations involved would not constitute a criminal offence in Canada because disputes between health care providers and insurers are generally settled without criminal prosecutions. This argument must also be rejected. In his testimony before the adjudicator, Mr. Cousins acknowledged that criminal prosecution remains an option. His testimony on this point can be found at pages 646-647 of the certified tribunal record:
COUNSEL: In your experience, in Ontario for instance, are these matters billing disputes generally handled by the prosecutor's office or by the College?
WITNESS: Oh they are almost invariably, absolutely invariably, in the last seven or eight years, there was a time which, during which from time to time you would have a doctor charged with what they called OHIP fraud, but in the last seven or eight years, almost 100% of this kind of thing has been in a sense delegated to the College of Physicians and Surgeons. There is a committee there called the Medical Review Committee, and I have had cases where doctors have been accused of over billing OHIP and none of them have been prosecuted criminally. All of them, you go and you have a meeting at the College, you agree or disagree on the amounts and the doctor is put on a payment plan and what happens is that thereafter OHIP will deduct from the doctors regular check the amount of money that he has to pay back to OHIP. And by and large that's how that is being handled. I think I may, I think there might have been something in the newspaper maybe a year ago or something about a doctor being charged with an OHIP fraud but that is the first one I have seen in many years. And I am sure there is something unusual about that case because by and large, by and large now the college deals with that by way of payback and in other cases by way of disciplinary process over the health professionals himself.
[47] While I accept the veracity of Mr. Cousins' evidence, it lacks important information in some respects. Mr. Cousins gave virtually no evidence concerning the circumstances under which prosecutions for "OHIP fraud" proceed. In any event, the decision not to pursue the matter means the individual in question will not be convicted of the offence, but does not foreclose that there exists "reasonable grounds to believe" the individual "committed" the offence in question, which is the standard required by subparagraph 19(1)(c.1)(ii).
[48] The distinction between the comparability of offences as opposed to convictions was a factor in Strayer J.A.'s decision in Li v. Canada (Minister of Citizenship and Immigration), [1997] 1 F.C. 235 (C.A.)., where he stated at paragraph 18: "what is being examined is the comparability of offences, not the comparability of possible convictions in the two countries." At issue was whether an adjudicator should take into account conduct of police in another country that if committed in Canada would run afoul of the Canadian Charter of Rights of Freedoms. Staryer J.A. concluded it was not a relevant consideration when dealing with section 19 of the Act and stated at paragraph 27 that when determining equivalency an adjudicator "should not compare the procedural or evidentiary rules of the two jurisdictions, even if the Canadian rules are mandated by the Charter". I read this as saying it is irrelevant whether the individual would have been convicted of the offence if it had been committed in Canada; rather, the question is whether the individual "committed" an offence "punishable under any Act of Parliament by a maximum term of imprisonment of ten years or more". This is what the adjudicator evaluated, and I find that her equivalency determinations were correct. The applicant did not take issue with the Criminal Code offences which the adjudicator found to be equivalent.
5. Sufficiency of Evidence
[49] The evidence before the adjudicator of the alleged crimes committed by Mr. Froom includes:
1. The Sealed Complaint sworn by Andrew J. Trilling before the Honourable Ronald L. Ellis, U.S. Magistrate Judge, Southern District of New York, in the case of The United States of America v. Sonia Lafontaine, a.k.a. Sonia Froome and Arthur Kissel, a.k.a. Arthur Froome. This is a seven-page complaint describing acts of fraud from March, 1994 to January, 1998 in New York involving false claims to several health insurance companies involving patients identified as Patient 1, Patient 2, Patient 3, Patient 4, Patient 5 and involving Doctor 1 and Doctor 2. These patients and doctors were interviewed by Mr. Trilling;
2. The Grand Jury Indictment against the applicant with respect to these allegations;
3. The letter from the U.S. Department of Justice to the Greater Toronto Enforcement Centre of the respondent dated September 12, 2000 enclosing a press release as well as articles from The New York Times and The New York Daily News about the conviction of the applicant's wife, who was accused of the same crimes as the applicant. The co-accused was found guilty of conspiracy to commit mail fraud and health care fraud, and conspiracy to engage in illegal financial transactions. As well, a medical doctor, who was also accused with the applicant, pled guilty to conspiring with the applicant to commit mail fraud and health care fraud. The
press release provides evidence about the alleged crimes committed by the applicant including that the applicant allegedly transferred $492,000 containing fraud proceeds from bank accounts in New York to bank accounts in Toronto after learning about the fraud investigations against him. The New York Times article dated July 13, 2000 reported that Ms. Lafontaine submitted fraudulent claims worth nearly $500,000 to insurance companies to dupe them into paying for cosmetic surgery, which is rarely covered. The report stated that Mr. Lafontaine's husband, Arthur Kissel (the applicant) is a fugitive in the case. The report also stated that a doctor who was accused with the applicant pleaded guilty to insurance fraud.
[50] In Canada (Minister of Citizenship and Immigration) v. Legault, supra, the Federal Court of Appeal held that an adjudicator could rely upon a U.S. Federal Grand Jury true bill of indictment against the respondent on a variety of offences including conspiracy to commit mail fraud and fraud. While the Trial Judge overturned the adjudicator's decision because it was based solely on the allegations in the indictment which had been returned by the Grand Jury and because the adjudicator examined no evidence pertaining to the alleged offences, the Court of Appeal overturned the Trial Judge. In paragraph 9, the Court stated:
The Motions' Judge also concluded that "in relying on the allegations made in the indictment the adjudicator erred in law by failing to make an independent determination on the basis of the evidence adduced before him.
The adjudicator found the warrant for the arrest of Mr. Legault and the indictment represent reasonable grounds to believe that Mr. Legault committed a number of acts punishable in the United States. The adjudicator said that these documents identify in detail the infractions. The Federal Court of Appeal said at paragraph 10:
There is nothing here to indicate that the adjudicator is not making an independent determination of the facts. Quite the contrary! As the adjudicator stated, the indictment and the warrant "identify in detail the infractions and provide a detailed description of procedure followed for the Commission of the different infractions." He considered this evidence credible or trustworthy in the circumstances of the case, and in my opinion such a decision is entirely within his discretion. Given the evidence before the adjudicator, he could reasonably arrive at the conclusion he did.
This principle is applicable to the case at bar. In reviewing the evidence, I am satisfied that the Grand Jury Indictment, the letter from the U.S. Department of Justice and the press release provide sufficient evidence of the offences upon which the adjudicator could rely. I am satisfied that the adjudicator reasonably concluded on the evidence that there were reasonable grounds to believe that Mr. Froom committed the criminal offence of conspiracy to commit mail fraud and fraud.
DISPOSITION
[51] For these reasons, this application for judicial review is dismissed.
PROPOSED CERTIFIED QUESTIONS
[52] The applicant proposed the following five questions for certification:
1. Can a foreign state use the provisions of the Immigration and Refugee Protection Act to object a person's return to face criminal charges which could have been made the subject of a request under provisions of the Extradition Act if the allegations were made while the person was legally in Canada and not inadmissible pursuant to any other provisions of the Immigration and Refugee Protection Act?
2. If yes, does this violate the protections set out an Extradition Treaty between two countries that incorporates safeguards for the person sought such as the rule of specialty? In these circumstances is it an abuse of process?
3. Is it an abuse of process when a foreign state instigates the detention and deportation proceedings against a person who is wanted for criminal charges in that state, and then cooperates with the Canadian immigration authorities with a view to obtaining the person's return by deportation? Does it taint the entire process and put the administration of justice into disrepute?
4. Can the Member find that a person had committed crimes in a foreign state so as to be inadmissible to Canada without providing specific details as to the specific transactions which form the basis for the offence?
5. Can a claim which fails to identify how the United States was a victim, a mandatory requirement under Section 371 of the Federal Statutes, could be basis of an immigration allegation against a person sought?
[53] The respondent opposes the certification of these questions for several reasons. I am of the opinion, for the reasons set out herein, that the proposed questions either do not raise a serious question of general importance not already decided by the Supreme Court of Canada and/or the Federal Court of Appeal, or the facts in this case do not support the premise of the proposed question. Accordingly, I cannot certify any of the proposed questions as a serious question of general importance which should be certified pursuant to subsection 74(d) of IRPA.
"Michael A. Kelen" ______________________________
Judge
OTTAWA, ONTARIO
October 2, 2003
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-5052-01
STYLE OF CAUSE: ARTHUR FROOM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: TUESDAY, SEPTEMBER 9, 2003
REASONS FOR ORDER
BY: THE HONOURABLE MR. JUSTICE KELEN
DATED: THURSDAY, OCTOBER 2, 2003
APPEARANCES BY: Ms. Netta Logsetty
For the Applicant
Mr. Lorne Waldman
For the Respondent
SOLICITORS OF RECORD: Mr. Lorne Waldman
Waldman & Associates
Barristers & Solicitors
281 Eglinton Avenue East,
Toronto, Ontario M4P 1L3
For the Applicant
Mr. Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20031002
Docket: IMM-5052-01
BETWEEN:
ARTHUR FROOM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER