Ottawa, Ontario, November 27, 2006
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This judicial review of a decision of the Immigration Division of the Immigration and Refugee Board (Board) holding the Applicant inadmissible on grounds of serious criminality turns on the failure to grant an adjournment. Did the refusal to adjourn constitute a breach of procedural fairness?
II. BACKGROUND
[2] The Applicant, a Mexican national, was convicted in the United States of conspiracy to distribute methamphetamine in violation of Title 21 USC 846, of possession of methamphetamine with intent to distribute pursuant to Title 21 USC 841(a)(1), mail fraud as well as aiding and abetting.
[3] He entered Canada with a work permit which was issued in error and then rescinded. He was then referred to the Board for an admissibility hearing pursuant to s. 44(1) of the Immigration and Refugee Protection Act:
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44. (1) An officer who is of the opinion that a permanent resident or a foreign national who is in Canada is inadmissible may prepare a report setting out the relevant facts, which report shall be transmitted to the Minister. |
44. (1) S’il estime que le résident permanent ou l’étranger qui se trouve au Canada est interdit de territoire, l’agent peut établir un rapport circonstancié, qu’il transmet au ministre.
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[4] Prior to the hearing, the Respondent provided the Applicant with the “Report under s. 44(1)”. The salient part of the Report states that the Applicant:
… was convicted under the name Eduardo Villaneuva Perez in the United States District Court in the Southern District of California for the offense of conspiracy to distribute methamphetamine, in violation of Title 21 United States Code, sections 846 and 841(A)(1). An offence that if committed in Canada would constitute the offence possession for the purpose of trafficking as described in section 5(2) of the Controlled Drugs and Substances Act, an indictable offence and liable to imprisonment for a term not exceeding ten years.
(Emphasis added)
[5] At the hearing the Applicant’s counsel and the Board discussed whether the s. 44 Report listed only the offence of conspiracy to distribute and whether the Respondent could proceed also on the grounds of possession with intent.
[6] As the Respondent intended to proceed on the grounds of both charges, the Applicant’s counsel objected and requested an adjournment so that he could prepare for the issues related to “possession with intent to distribute”. That adjournment was denied.
[7] The Board concluded that the Applicant was inadmissible. That determination was principally focused on the issues of possession.
[8] While the Applicant has raised both the procedural fairness issue and the error of law on admissibility, this case can be disposed of on the first issue.
III. ANALYSIS
[9] The issue of procedural fairness actually turns on the classification of the adjournment request – was it based on the legal determination as to an absence of notice or was it the exercise of discretion by the Board?
[10] The s. 44 Report, while referring to two sections of the United States Code, specifically mentions the singular offence “the offence of conspiracy to distribute methamphetamine”. It reiterates the singular offence in the next sentence of the relevant portion of the Report – “An offence that if committed in Canada would constitute the offence possession for the purpose of trafficking as described in section 5(2) of the Controlled Drugs and Substances Act, an indictable offence and liable to imprisonment for a term not exceeding ten years”.
[11] The Applicant’s counsel claimed he was led to believe from the s. 44 Report that the Respondent relied on only the conspiracy offence for purposes of the analysis of equivalency between Canadian and U.S. criminal provisions.
[12] His contention, quite apart from accepting his word as an officer of the Court which I do, is supported by the Book of Authorities he had prepared which was all directed at conspiracy.
[13] Since the misunderstanding was sincere, the issue then is was it reasonable? In my view, the wording of the s. 44 Report was sufficiently unclear as to support the reasonableness of the assertion that the Applicant did not have proper notice of the issues which he was required to address.
[14] Had this been a question of an adjournment rather than one of proper notice, great deference would be owed to the Board. Its decision to deny the Respondent’s request to adjourn in order that more senior counsel could participate is just the type of decision to which deference is owed.
[15] The Respondent contends that in view of the Applicant’s guilty plea, the result of any admissibility hearing is a foregone conclusion and therefore the matter should not be referred back to the Board. The Respondent may be correct as to the ultimate disposition but there is no certitude as to this conclusion and the Applicant is entitled to his opportunity to address all the issues.
[16] Therefore, this judicial review will be granted, the Board’s decision quashed and the matter referred back to be determined by a differently constituted panel of the Board. There is no question for certification.
JUDGMENT
IT IS ORDERED THAT this application for judicial review is granted, the Board’s decision is quashed and the matter is referred back to be determined by a differently constituted panel of the Board.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2398-06
STYLE OF CAUSE: EDUARDO VILLANEUVA PEREZ
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: November 21, 2006
REASONS FOR JUDGMENT: Phelan J.
APPEARANCES:
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Mr. Shane Molyneaux
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Mr. Peter Bell
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SOLICITORS OF RECORD:
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ELGIN, CANNON & ASSOCIATES Barristers & Solicitors Vancouver, British Columbia
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MR. JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Vancouver, British Columbia
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