PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
and
AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] Mr. Mohammad Amin Patel (the “Applicant”) seeks judicial review of the decision of a Designated Immigration Officer (the “Officer”), denying his application for permanent residence in Canada on the grounds of inadmissibility pursuant to paragraph 36(1)(b) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended (the “Act”).
[2] The Applicant, a resident of New York and an American citizen, was convicted of the offence of Petit Larceny in the Criminal Court of the City of New York on November 18, 2004. The Officer purported to apply an equivalency test in determining whether this conviction gave rise to inadmissibility pursuant to paragraph 36(1)(b) of the Act.
[3] Having reviewed the materials filed in support of this application including the affidavits of the Applicant and of the Officer, the transcript of the cross-examination of the Officer, the Officer’s notes and the balance of the certified Tribunal Record, I am satisfied that this application should be allowed. In my opinion the Officer committed a reviewable error by failing to properly apply the correct test for determining the equivalency of the offence of Petit Larceny in New York State with the offence of theft pursuant to section 322 of the Canadian Criminal Code, R.S.C. 1985, c. C-46, as amended (the “Criminal Code”).
[4] In Hill v. Canada (Minister of Employment and Immigration) (1987), 73 N.R. 315 (F.C.A.), the Federal Court of Appeal set forth the following tests for determining the equivalency of offences:
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. Third, by a combination of one and two.
[5] In the present case, the Officer deposed at paragraph 9 of her affidavit that she considered the conviction for Petit Larceny to be equivalent with the Criminal Code offence of theft, as follows:
I disagreed with this submission. The Applicant in this case was initially charged under both New York State Tax Law and Penal Law. In the end, however, he was convicted of larceny or stealing property under the New York State Consolidated Penal Law. As the Applicant was convicted of a penal or criminal offence, I was of the view that the most appropriate equivalent offence was to be found in the Canadian Criminal Code’s theft provisions rather than in the more limited penalty provisions of provincial retail sales tax legislation.
[6] The Officer adhered to this view in her cross-examination. She testified that she did not seek advice from a lawyer in dealing with the question of equivalency but looked at the language of the New York Penal Code and reached her conclusions on the basis of her own opinion.
[7] I see a problem with the Officer’s conclusion with respect to the question of equivalency. In my view, she did not clearly identify which of the three available legal tests, as set out in Hill, that she was applying. She did not, in my opinion, seek to identify the essential elements of the offence for which the Applicant had been convicted before looking for an equivalent offence under the Criminal Code.
[8] In my opinion, the Officer’s failure to consider the essential elements of the offence in New York led to an error on her part in applying the test for equivalency. An error in the application of a legal test is an error of law and justifies judicial intervention.
[9] Accordingly, this application for judicial review is allowed. The matter is remitted to a different Officer for redetermination. Counsel advised that there is no question for certification arising.
ORDER
The application for judicial review is allowed, the decision of the Officer is quashed and the matter is remitted to another officer for determination. There is no question for certification arising.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-292-06
STYLE OF CAUSE: MOHAMMAD AMIN PATEL and THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 25, 2007
APPEARANCES:
|
Karen Kwan Anderson |
FOR THE APPLICANT |
|
John Provart |
FOR THE RESPONDENT |
SOLICITORS OF RECORD:
|
Pace Law Firm Toronto, Ontario
|
FOR THE APPLICANT |
|
John H. Sims, Q.C. Deputy Attorney General of Canada |
FOR THE RESPONDENT |