Date: 19980305
Docket: IMM-3327-97
BETWEEN:
JONG IN PARK
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
CAMPBELL J.
ACTION
[1] This is an application for judicial review of a decision of Paul Tetreault, (the "Adjudicator") dated July 22, 1997 wherein Jong In Park (the "Applicant") was found to be a person described in sections 27(2)(a) and 19(2)(a.1)(i) of the Immigration Act (the "Act") and subject to a departure order.
FACTS
[2] The Applicant entered Canada on July 30, 1996 at Emerson, Manitoba as an undocumented visitor with status until June 30, 1997.
[3] On March 20, 1992, in Seoul, the Applicant was charged with driving a motor vehicle while intoxicated in violation of Section 107.2.1 of the Korean Road Traffic Act and he pleaded guilty to the offence. The document "Description of Violation" respecting this charge and plea states as follows:
| 2. Despite the drink and drive is prohibited by the law, he drove approximately 7 kilometers after drinking 2/3 of a bottle (3 HOP - 750 ml) of beer in the funeral room of the above medical centre on the same day until he was checked on the street in front of the catholic hospital showing 2.4 mili-gram alcohol per 1 mili-litre blood. |
The legal limit in Korea is .05.
[4] The potential Canadian equivalent of the Korean law is Section 253 of the Canadian Criminal Code, an offence for which a person may be imprisoned for a term not exceeding
5 years. The legal limit in Canada is .08.
[5] On January 20, 1997, a Direction was made under section 27(3) of the Act for an inquiry be held to determine if the Applicant is a person described in paragraphs 27(2)(a) and 19(2)(a.1)(i). A series of inquiries were held on April 22, 1997, June 10, 1997 and on July 22, 1997 after which the Applicant was ordered deported.
DECISION UNDER REVIEW
[6] The decision is the Departure Order dated July, 22, 1997. The reasons for this decision were provided orally to the Applicant from the bench also on July 22, 1997.
The Adjudicator described his mandate as follows:
| What I must determine in whether there was a conviction outside Canada, see whether or not there is a Canadian equivalent and determine whether the maximum sentence is less than 10 years. |
...
| What the jurisprudence in Immigration law states is that I must equate the statutes and, where necessary, I should also look at the facts. In the foreign statute the level that constitutes intoxication in .05. As I stated in Canada it's .08. |
The Adjudicator further stated:
| ...the amount of alcohol recorded was equivalent to 240 milligrams of alcohol in 100 millilitres of blood. 240 is obviously greater than 80. Therefore, all relevant facts have been met |
| Addressing some of the arguments of counsel, is that the quantity of alcohol consumed would be inadequate to end up with a result of 240 milligrams. It is not up to me, as I stated earlier in the Inquiry, to be a criminal appellant court, but there's no empirical evidence as to the amount of -- as to the quantity of alcohol consumed. Obviously, there was no one standing over your shoulder watching you. And your evidence in this area obviously, at the very least, could be self-serving. But the actual amount of alcohol that was consumed is not a decision which I must make or a fact which I must consider because whether it was two-thirds of a bottle or 10 bottles, in arriving at my decision today what I've looked at is the analytical results of the amount of alcohol in your blood and that is the number that I examined which was 240. |
| You've also brought to my attention that there have been other successful appeals of the equipment to record blood alcohol. That may be the case but what I'm looking at is your case. The equipment used on you may not have been faulty, but, failing a successful appeal of your conviction, I am taking that reading at face value. |
| Going on, your counsel earlier made reference that perhaps you no longer have a record. Even if there was a check done and there was no record, that could be anything from a clerical error to a faulty database. Who knows? What I went by were the documents provided to me from the Korean authorities that a conviction did take place. And if it is the case that you have been pardoned for some reason, it was encumbent on your lawyer to provide me evidence as to that fact. |
| The punishment section in Canada is found under Section 255(1)(b). The maximum sentence would be for a term not exceeding five (5) years. Now, five (5) years is obviously less than 10 years, therefore, all elements of the allegation have been met. And it is therefore my decision that you are in violation of paragraph 27(2)(a) by 19(2)(a.1) sub (i). |
You must now leave Canada.
STATUTORY REFERENCES
[7] The following are the statutory sections:
Immigration Act:
| 19(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 of 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 |
| 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 |
| (a) is a member of an inadmissible class, other than an inadmissible class described in paragraph 19(1)(h) or 19 (2)(c), |
| 27(3) Subject to subsection (3.1) and any order or direction of the Minister, the Deputy Minister, on receiving a report pursuant to subsection (1) or (2), shall, if the Deputy Minister considers it appropriate to do so in the circumstances, forward a copy of that report to a senior immigration officer and may |
| (a) direct that a determination be made with respect to any or all of the allegations mentioned in the report where the person is a person described in |
| (i) paragraph (2)(a) by reason of paragraph 19(2)(d), |
| (ii) paragraph (2)(e) by reason of paragraph 26(1)(c), or |
| (iii) paragraph (2)(h) or (k); or |
| (b) in any case, direct that an inquiry be held. |
Criminal Code
| 253 Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not, |
| (b) having consumed alcohol in such a quantity that the concentration in the person's blood exceeds 80 milligrams of alcohol in 100 millilitres of blood. |
Korean Road Traffic Act
| Article 107.2 Any person who falls under any of the following items shall be punished with not more than two years' servitude or a fine not exceeding three million Won. |
| 1. Any person who has driven a vehicle under the condition of alcoholic intoxications, is in violation of the provisions of paragraph 1 of Article 41. |
| Article 41(1) A person, even if he has a driver's licence, shall not drive motor vehicles, etc. while intoxicated. |
| (2) Standards on the degree of intoxication which prohibits driving according to Paragraph 1 shall be provided for by a Presidential Decree. |
Article 31 (Standard of Intoxicated State) The standard of an intoxicated state as referred to in Article 41 of the Act shall be more than 0.05 percent of alcohol concentration in blood.
APPLICANT'S ARGUMENT
[8] The Applicant argues that refusal of the Adjudicator to consider how much alcohol the Applicant consumed in coming to a decision on equivalence between the charge in Korea and the charge in Canada amounts to an error of law.
[9] The Applicant also submits that the refusal of the Adjudicator to adjourn the inquiry to allow for the translation of the just received documents regarding the reliability of the Korean breathalyser was a breach of procedural fairness. In refusing to adjourn, the Adjudicator prevented the Applicant from presenting all the relevant facts of his case. The faulty nature of the Korean breathalyser was relevant to the Adjudicator's decision and should have been examined and addressed.
[10] The Applicant submits that the description of the offence in the charge is self-contradictory because the Applicant drank only 2/3 of a bottle of beer but the blood/alcohol reading was 2.4. Given the contradiction, it was the Adjudicator's responsibility to determine which of these two pieces of information was correct.
RESPONDENT'S ARGUMENT
[11] The Respondent submits that the Adjudicator's fulfilled his mandate of determining the essential elements of the offence committed in Korea as compared to Canada and then determined that the essential elements corresponded.
[12] The Respondent rejects that the Adjudicator erred in relying on the Korean description of the charge. The type of document relied on by the Adjudicator constituted the best evidence in the case, and he was therefore, entitled to rely on it.
[13] The Respondent asserts that it was not open to the Applicant to contest his conviction on the merits during the inquiry before the Adjudicator. Hence, the Adjudicator was not required to investigate how much alcohol that the Applicant had consumed because the issue of what the Applicant "was convicted of depends on what he was charged with, not on the evidence that might have been led at trial".
[14] The Respondent argues that it was the Adjudicator's duty to establish an equivalence between the essential elements of the offence itself. It was not his duty to establish equivalence between the breathalyser equipment.
LAW & ANALYSIS
[15] The test applicable to the present matter was set out by the Federal Court of Appeal in Brannson v. M.E.I1 as follows:
| In this case, we have in evidence the judgment and probation commitment order and the definition of the relevant United States offence, and we know the definition of the Canadian offence. I would observe generally that in such a situation, in determining whether the offence committed abroad would be an offence in Canada under a particular Canadian statutory provision, it would be appropriate to proceed with this in mind: Whatever the names given the offences or the words used in defining them, one must determine the essential elements of each and be satisfied that these essential elements correspond. One must, of course, expect differences in the wording of statutory offences in different countries. |
At page 144, Urie J.A.states:
| It is not sufficient, in my view, for the Adjudicator simply to look at the documentary evidence relating to a conviction for an offence under the foreign law. There must be some evidence to show firstly that the essential ingredients constituting the offence in Canada include the essential ingredients constituting the offence in the United States. Secondly, there should be evidence that the circumstances resulting in the charge, count, indictment or other document of a similar nature, used in initiating the criminal proceeding in the United States, had they arisen in Canada, would constitute an offence that might be punishable by way of indictment in Canada. Thus, it would seem that such a document would constitute the best, but not the only, evidence upon which the Adjudicator might base her decision. |
And at page 145:
| ...the necessity for the Adjudicator to determine whether the offence for which the applicant was convicted would constitute an offence if committed in Canada, requires, at least in circumstances where the scope of the offence is narrower in compass than that in the foreign jurisdiction, ascertainment of particulars of the offence for which the person concerned was convicted. It is neither possible nor desirable to lay down in general terms the requirements applicable in every case. Suffice it to say that the validity or the merits of the conviction is not an issue and the Adjudicator correctly refused to consider representations in regard thereto. |
Mr Justice Urie further stated in Hill v. Canada (Minister of Employment and Immigration)2:
| This court in the Brannson case did not limit the determination of so-called "equivalency" of the paragraph of the Code, there is in issue, to the essential ingredients of any offence specifically spelled out in the statute being compared therewith. Nor is it necessary on this case. 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 offenses. Two, by examining the evidence adduced before the adjudicator, both oral and documentary, to ascertain whether or not the 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. |
[16] Thus, the evidence before the Adjudicator at the inquiry must indicate that the elements of the Canadian offence include the elements of the Korean offence and that the circumstances resulting in the conviction in Korea would have constituted an offence in Canada had they arisen here.
[17] The Applicant submits that the scope of Section 255(1)(b) of the Canadian Criminal Code is narrower than that of the Korean statute. I agree with this submission. In accordance with Brannson, the Adjudicator compared the statutes and, since the Canadian statute was narrower in scope, he also examined the particulars of the offence, concluding that "240 is obviously greater than 80. Therefore all the relevant facts have been met". I find no reviewable error in his approach or reasoning.
[18] The critical issue, however, is whether the Adjudicator erred in accepting the reading of .24 in the document "Description of Violation", without further investigation. I find that as the document "Description of Violation" is an official document, and as such is the best evidence available of the facts relating to the Korean convictions, the Adjudicator was entitled to accept the breathalyser reading noted therein as accurate. The fact that the document also contains evidence of alcohol consumption does not change this entitlement.
[18] Accordingly, this application is dismissed.
(Sgd.) "Douglas Campbell"
Judge
Vancouver, British Columbia
March 5, 1998
Date: 19980305
Docket: IMM-3327-97
BETWEEN:
JONG IN PARK
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Heard at Winnipeg, Manitoba, on February 16, 1998
Judgment delivered at Vancouver, B.C., on March 5, 1998
REASONS FOR JUDGMENT BY: THE HONOURABLE MR. JUSTICE CAMPBELL
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-3327-97
| STYLE OF CAUSE: JONG IN PARK v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: February 16, 1998
REASONS FOR JUDGMENT
OF THE COURT: The Honourable Mr. Justice Campbell
DATED: March 5, 1998
APPEARANCES:
David Matas for the Applicant
Sharlene Telles-Langdon for the Respondent
Department of Justice
301 - 310 Broadway
Winnipeg, Manitoba
R3C 0S6
SOLICITORS OF RECORD:
David Matas
Barrister and Solicitor
602 - 225 Vaughan Street
Winnipeg, Manitoba
R3C 1T7
for the Applicant
Mr. George Thomson, Q.C.
Deputy Attorney General of Canada for the Respondent
FEDERAL COURT OF TRIAL
Date: 19980305
Docket: IMM-3327-97
BETWEEN:
JONG IN PARK
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
__________________
1Brannson v. M.E.I [1981] 2 F.C. 141 at 152-153
2Hill v. Canada (Minister of Employment and Immigration)(1987), 73 N.R. 315 at 320 (F.C.A.)