Federal Court Decisions

Date: 20060427

Docket: IMM-3512-05

Citation: 2006 FC 515

BETWEEN:

S.A.

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER

GIBSON J.

INTRODUCTION

[1]                S.A. (the "Applicant") is an Israeli national. He met his future spouse, a Canadian citizen, in Toronto in July of 1993. They married on the 1^st of December, 1995. The Applicant's spouse submitted an undertaking to sponsor the Applicant for permanent residence in Canada on the 26^th of February, 1996. The Applicant's application for permanent residence in Canada was ultimately refused because he was found, by decision dated the 9^th of July, 2005, to be inadmissible. The Applicant sought leave and judicial review in respect of that decision. Leave was granted. These reasons follow the hearing of the application for judicial review.

[2]                At the opening of the hearing before the Court, the Applicant was consulted regarding the style of cause that would appear on these reasons and the related order. Due to the sensitive information from the Applicant's past in Israel that is central to the decision under review and therefore to these reasons, the Applicant requested that he be identified in these reasons and the related order only by his initials. Counsel for the Respondent took no position with regard to that request. The Court agreed to the request and, in the result, the Applicant is identified in the style of cause on these reasons and the related order only as "S.A.".

BACKGROUND

[3]                In a Report issued under section 27 of the Immigration Act[1], the Applicant was found to be a person who is a member of an inadmissible class as a person in respect of whom there are reasonable grounds to believe that he or she has been convicted outside of Canada of an offence that, if committed in Canada, would constitute an offence that may be punishable under an Act of Parliament by a maximum term of imprisonment of ten (10) years or more. The report was based on the following information:

That [the Applicant] was convicted in Israel of sexual assault of a person under age 16 under section 348B of the Criminal Code of 1977 and 4 August, 1989, for sexual assault on a person under age 16 under section 348B of the Criminal Code of 1977, which, if committed in Canada would constitute an offence under Section 151 of the Criminal Code of Canada, namely sexual interference, for which a maximum term of imprisonment not exceeding ten years may be imposed.[2]

It was this report that led to the decision here under review.

[4]                The Applicant does not contest the conviction and that the offences giving rise to it, of which there were 2, were perpetrated in 1988 and 1989 when he was 25 and 26 years old, respectively. He attests:

For my offences, I received a single conviction and was sentenced to 15 months imprisonment of which nine months were suspended and six months were to be served in prison. The sentence was later commuted to public service work, which I completed when I was 26 years old;

Since that time I have had no further criminal convictions;

I have, since that time, received a 'prescription' in Israel, which removes the offence from my record. ...[3]

Attached to the Applicant's affidavit is a photocopy of a certificate indicating its origin to be Police Headquarters, Investigation and Prosecution Division. The photocopy reads in part as follows:

This is to certify that no criminal record is held by the Israel police in respect of [the Applicant].[4]

The certificate purports to be dated at Jerusalem on the 14^th of November, 2002.

[5]                The Applicant attests that he has five (5) Canadian born children, and that he is the sole source of economic support for his spouse and Canadian born children.

THE DECISION UNDER REVIEW

[6]                The decision maker refers to the section 27 report earlier cited in these reasons and notes that, with the coming into force of the Immigration and Refugee Protection Act[5] (the "Act") it became an allegation pursuant to paragraph 36(1)(b) of that Act. The relevant portions of subsection 36(1) of the Act read as follows:

The decision maker notes that paragraphs 36(3)(b) and (c) of the Act are applicable in the interpretation of paragraph 36(1)(b). The relevant portions of subsection 36(3) read as follows:

The decision maker further notes that no pardon has been granted under Canadian law in respect of the conviction in question and that there was nothing before her to indicate that the Applicant has satisfied the Respondent that he has been rehabilitated or that he is a member of a "prescribed class that is deemed to have been rehabilitated".

[7]                The decision maker finally notes that the Applicant is a "foreign national" for the purposes of paragraph 36(1)(b) of the Act, as that expression is defined in subsection 2(1) of the Act.

[8]                After noting that the evidence before her consisted of the Applicant's testimony and documents filed by counsel for both the Minister and the Applicant, the decision maker reviews arguments made on behalf of the Minister and the Applicant and certain of the exhibits before her and concludes with respect to the Applicant:

Based on your testimony I am satisfied that you are not a Canadian citizen or a permanent resident of Canada, therefore I am satisfied that you are a foreign national as described in section 21[sic] of the Act. I am further satisfied based on the documents from the Magistrate's Court in Jerusalem that you were convicted outside of Canada of an offence under the Israeli Penal Code.[6]

[9]                The decision maker then goes on, by reference to exhibits before her and the submissions of counsel, to compare the provision of Israeli criminal law under which the Applicant was convicted and section 151 of the Criminal Code of Canada[7]. After taking into account certain of the evidence that was before the convicting court in Israel, the decision maker concluded:

Based on the comparison I am satisfied that the offences of sexual assault of a minor child in Israel is equivalent to section 151 of the Canadian Criminal Code and as that section provides for a maximum term of imprisonment of up to and including 10 years I am satisfied that you are inadmissible to Canada pursuant to paragraph 36(1)(b).[8]

[10]            The decision maker then turns to an examination of the "automatic prescription" granted to the Applicant by the state of Israel and examines at some length the provisions of the Israeli law under which that prescription was granted. The decision maker also refers to legal opinions before her, from an Israeli solicitor, and notes that the Israeli prescription is "automatic" with the

passage of time whereas a Canadian pardon is "applied under discretion of the relevant authority" and "can also be revoked in certain conditions". The decision maker also notes a second stage in the Israeli process which, after the lapse of a further period of time from the time of prescription, provides for a "deemed extinguishment". The decision maker then effectively concludes her reasons for decision with the following brief paragraph:

I am of the view that you have not been granted a pardon and you are not eligible for such consideration under Israeli law until the 17^th of June 2007 and that is ten years from the end of the prescription period.[9]

The 17^th of June, 2007 is the date of the "deemed extinguishment" under Israeli law.

THE ISSUES

[11]            Under the heading "The Issues" in the Memorandum of Fact and Law filed on behalf of the Applicant, counsel writes:

The test for Judicial Review of the Immigration Division Board Members...decision is whether the Board Member:

                a. Failed to consider the totality of the evidence before her;

b. Failed to observe a principle of natural justice, procedural fairness or other procedure that she is required by law to observe;

                c. Acted in any other way that is contrary to law.[10]

[12]            Based upon the materials before the Court and the presentations of counsel at hearing, I would rephrase the issues on this application for judicial review as follows: whether the decision maker had regard to the totality of the evidence before her, applied the appropriate test for the determination of equivalency between the prescription that the Applicant obtained under Israeli law and a pardon under Canadian law and fulfilled the duty incumbent on her to provide "adequate" reasons justifying her decision.

ANALYSIS

[13]            In Sicuro v. The Minister of Citizenship and Immigration[11], my colleague Justice Mosley, after conducting a brief pragmatic and functional analysis, concluded that the appropriate standard of review of a decision such as that here before the Court is reasonableness simpliciter . While Justice Mosley was considering a decision under the former Immigration Act, not the Immigration and Refugee Protection Act, I am satisfied that his analysis leads, in broad terms, to the same conclusion under the latter Act, notwithstanding that the first matter to be considered on an application for judicial review such as this is the effect of the foreign pardon, here the Israeli prescription, in that country, a determination that is a question of fact and that is therefore reviewable on a standard of patent unreasonableness.

[14]            In Canada(Minister of Citizenship and Immigration) v. Saini [12], at paragraphs [24] and [26], the Court recognized three (3) elements that must be established for a foreign discharge or pardon or, as here, a prescription, to be recognized. At the same time, I interpret the Court's reasons to effectively subdivide the first such element into two (2) parts, the first of which is referred to in paragraph [26] of the Court's reasons. Paragraphs [24] and [26] of the Court's reasons in Saini read as follows:

To summarize, our jurisprudence requires that three elements must be established before a foreign discharge or pardon may be recognized: (1) the foreign legal system as a whole must be similar to that of Canada; (2) the aim, content and effect of the specific foreign law must be similar to Canadian law; and (3) there must be no valid reason not to recognize the effect of the foreign law.

...

The first matter to consider is the effect of the foreign pardon in the country where it is granted. Foreign law is a question of fact, which must be proved to the satisfaction of the Court. Judicial findings about foreign law, therefore, have always been considered on appeal as questions of fact... . Moreover, it is well settled that this Court will only interfere with a finding of fact, including a finding of fact with regard to expert evidence, if there has been a

palpable and overriding error... .

[citations omitted]

[15]            The decision maker whose decision is here under review, in her reasons, disregarded the foregoing test. The reasons would appear to ignore the police clearance certificate that was before the decision maker and which would appear to attribute to the prescription in favour of the Applicant an effect in Israel very close, if not identical, to the effect of a pardon in Canada. The decision maker provides no analysis of the similarity or lack thereof between the Israeli legal system and that of Canada. While the decision maker would appear to have examined the aim, content and effect of the relevant Israeli law, the similarity or lack of similarity between that aim, content and effect to the aim, content and effect of Canada's pardon law is only very indirectly addressed in the decision under review. Finally, with great respect, the decision maker would appear to provide no valid reason not to recognize the effect of the relevant Israeli law.

[16]            Further, although the issue of the adequacy of the decision maker's reasons was not directly raised, either in the written material before the Court or in the submissions of counsel before the Court, it was raised by the Court itself at hearing. Together with the above referenced concerns regarding failure to directly address the Saini factors, I am satisfied that it is determinative on this application for judicial review.

[17]            In Via Rail Canada Inc. v. National Transportation Agency [13], Justice Sexton, for the Court, wrote at paragraphs 17 to 22 of his reasons:

[17] The duty to provide reasons is a salutary one. Reasons serve a number of beneficial purposes including that of focussing the decision maker on the relevant factors and evidence. In the words of the Supreme Court of Canada:

Reasons, it has been argued, foster better decision making by ensuring that issues and reasoning are well articulated and, therefore, more carefully thought out. The process of writing reasons for decision by itself may be a guarantee of a better decision.

[18] Reasons also provide the parties with the assurance that their representations have been considered.

[19] In addition, reasons allow the parties to effectuate any right of appeal or judicial review that they might have. They provide a basis for an assessment of possible grounds for appeal or review. They allow the appellate or reviewing body to determine whether the decision maker erred and thereby render him or her accountable to that body. This is particularly important when the decision is subject to a deferential standard of review.

[20] Finally, in the case of a regulated industry, the regulator's reasons for making a particular decision provide guidance to others who are subject to the regulator's jurisdiction. They provide a standard by which future activities of those affected by the decision can be measured.

[21] The duty to give reasons is only fulfilled if the reasons provided are adequate. What constitutes adequate reasons is a matter to be determined in light of the particular circumstances of each case. However, as a general rule, adequate reasons are those that serve the functions for which the duty to provide them was imposed. In the words of my learned colleague Evans J.A., "[a]ny attempt to formulate a standard of adequacy that must be met before a tribunal can be said to have discharged its duty to give reasons must ultimately reflect the purposes served by a duty to give reasons."

[22] The obligation to provide adequate reasons is not satisfied by merely reciting the submissions and evidence of the parties and stating a conclusion. Rather, the decision maker must set out its findings of fact and the principal evidence upon which those findings were based. The reasons must address the major points in issue. The reasoning process followed by the decision maker must be set out and must reflect consideration of the main relevant factors.

[citations omitted]

While we are certainly not dealing here with a "regulated industry", I am satisfied that, by analogy, quoted paragraph [20] is applicable on the facts of this matter. Inadmissibility on the basis of a foreign conviction is a complex concept. Adequate reasons applying the concept provide a standard by which subsequent decision makers can guide themselves and others in a position equivalent to that of the Applicant can evaluate their positions.

[18]            I am satisfied that the Court's reasoning in paragraph [22] above is directly applicable here. The decision maker, in reasonably extensive reasons delivered orally, recited at length statutory provisions, submissions and evidence, primarily documentary, and then stated conclusions. The reasons are remarkably short on "findings of fact" though they do recite evidence at length. They do not address the major points in issue except through the very brief statements of conclusions. A reasoning process is by and large entirely absent. In short, I conclude that the reasons of the decision maker that are here under review are simply not "adequate" reasons and in failing to provide "adequate reasons" the decision maker erred in law[14].

CONCLUSION

[19]            For the foregoing brief reasons, this application for judicial review will be allowed. The decision under review will be set aside and the matter will be referred back to the Respondent for reconsideration and re-determination by a different officer, in accordance with law.

CERTIFICATION OF A QUESTION

[20]            At the close of the hearing of this application for judicial review, the Court reserved its decision and indicated that reasons would be circulated and counsel would be provided an opportunity to make submissions on certification of a question. These reasons will be circulated. Counsel for the Respondent will have seven (7) days from the date of the reasons to serve and file

with the Court any submissions it may wish to make on certification of a question. Counsel for the Applicant will have seven (7) days from the date of service of any Respondent's submissions to serve and file responding submissions. Thereafter, counsel for the Respondent will have three (3) working days to serve and file any reply submissions. Only after the Court has had an opportunity

to review any such submissions will an order in this matter issue.

"Frederick E. Gibson"

Ottawa, Ontario

April 27, 2006.

FEDERAL COURT

NAME OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                           IMM-3512-05

STYLE OF CAUSE:                           S.A.

Applicant

                                                            and

                                                            THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

PLACE OF HEARING:                     Toronto, Ontario

DATE OF HEARING:                       April 19, 2006

REASONS FOR ORDER:                GIBSON J.

DATED:                                              April 27, 2006

APPEARANCES:

Janet L. Bomza	FOR THE APPLICANT
Martin Anderson	FOR THE RESPONDENT

SOLICITORS OF RECORD:

Janet L. Bomza and Associates Toronto	FOR THE APPLICANT
John H. Sims, Q.C. Deputy Attorney General of Canada Toronto	FOR THE RESPONDENT