Date: 20000914
Docket: IMM-5727-98
BETWEEN:
BOJAN POPIC
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HANSEN J.
[1] Bojan Popic, a Bosnian Serb living in Germany, applied for permanent residence in Canada under the independent class. His application was refused based on the visa officer's determination he was inadmissible by virtue of subparagraph 19(2)(b)(ii) of the Immigration Act, R.S.C. 1985, c. I-2.
| [2] According to the Summary Punishment Order received from the German Public Prosecutions Office, the applicant had three convictions for: |
| Obtaining conveyance by means of transport surreptitiously with the intention of not paying the charge punishable pursuant to section 265 and 248 of the Penal Code. |
[3]
The visa officer concluded that as this offence was equivalent to an offence under subsection 393(3) of the Criminal Code the applicant was inadmissible being "a person who there are reasonable grounds to believe [has] been convicted outside of Canada of two or more offences, not arising out of a single occurrence, that, if committed in Canada, would constitute summary conviction offences under any Act of Parliament".
[4] Subsection 393(3) of the Criminal Code reads as follows:
| 393(3) Every one who, by any false pretence or fraud, unlawfully obtains transportation by land, water or air is guilty of an offence punishable on summary conviction. R.S., c. C-34, s. 351. |
393(3) Est coupable d'une infraction punissable sur déclaration de culpabilité par procédure sommaire quiconque, par un faux semblant ou une fraude, obtient illégalement le transport par voie de terre, par eau ou par la voie des airs. S.R., ch. C-34, art. 351. |
[5] The applicant submits the offences for which he was convicted are equivalent to municipal by-law infractions and not Criminal Code offences.
[6] The issue on this judicial review is whether the visa officer erred in law in determining the offences for which the applicant was convicted in Germany are equivalent to convictions pursuant to subsection 393(3) of the Criminal Code.
| [7] In Hill v. Canada (Minister of Employment and Immigration) (1987), 73 N.R. 315 at 320, Urie J.A. stated: |
| ... 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. Third, by a combination of one and two. |
[8] In this case, there was no oral or documentary evidence as to the circumstances of the commission of the offences to assist the visa officer in his analysis. Thus, the visa officer's determination of equivalency was limited to the first of the three alternatives.
[9] The visa officer sought the assistance of a senior analyst in Ottawa. Based on his assumption that the German offence was "riding without paying", the senior analyst concluded the element of non-payment in the German offence was equivalent to "unlawfully" in the Criminal Code provision, however, he was uncertain whether the obtaining of the transportation by "false pretences" or "fraud" had an equivalent essential element in the German offence.
[10] Faced with this incomplete analysis, the visa officer concluded:
| ... I am of the opinion that the applicant, like all residents of Germany, know they must pay for public transit. Furthermore, to be caught three times is quite exceptional. In a year of using public transit, I've never been controlled. I think applicant should have known he had to pay and chose not to pay. I am of the opinion that offenses if committed in CDA could be punishable under CCC 393... |
[11] In general, the essential elements of an offence are those components of an offence usually consisting of the actus reus and mens rea, which must be proven for a finding of guilt. In my view, the visa officer erred by importing into the analysis the considerations noted above which are not relevant to a determination of the essential elements of an offence.
[12] For these reasons, the application for judicial review is allowed, the decision dated September 15, 1998 is set aside and the matter is remitted back for reconsideration by a different visa officer.
[13] Neither party had a question to submit for certification.
"Dolores M. Hansen"
J.F.C.C.