Date: 20000829
Docket: IMM-2335-99
BETWEEN:
TEODORE SORIANO
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
MacKAY J.
[1] These reasons confirm those rendered orally at the conclusion of the hearing of this application for judicial review at Toronto, Ontario on August 23, 2000, when I indicated I would dismiss the application subject to my consideration of a question proposed for certification.
[2] The applicant is a citizen of the Philippines who arrived in Canada on a visitor's visa. He then tried to enter the United States, but was refused entry by U.S. Immigration authorities, apparently on the basis of earlier criminal convictions there. He was then reported by a Canadian immigration officer under section 20(1) of the Immigration Act, R.S.C. 1985, c. I-2 as amended. This led to an inquiry by an adjudicator in relation to that report, to determine whether the applicant was inadmissible to Canada as a person who, not being a Canadian citizen or permanent resident, had committed an offence outside Canada which if committed here would have been subject to a penalty of up to ten years imprisonment. If so found, the applicant would be a person within paragraph 19(1)(c.1)(i), and would be inadmissible to Canada.
[3] At the inquiry before an adjudicator on April 22, 1999 the applicant was found to be a person within that provision of the Act. A deportation order was issued against him. A transcript of a portion of that inquiry is as follows (Q: Case Presenting Officer; A or Person Concerned: Mr. Soriano):
| Q: Are you a Canadian citizen or permanent resident in Canada? |
| Q: The report alleges that you were convicted in California the 8th of May, 1991 of offering a false or forged (inaudible) to be filed. |
| Q: Were you convicted of that offence? |
| Q: This is a copy of the California Penal Code for that offence. I"d like to file that as an exhibit. |
| ADJUDICATOR: That will be exhibit C-2. |
| - - - EXHIBIT C-2: Copy of the California Penal Code |
| Q: Were you also convicted in California the 30th of November, 1994, of grand theft? |
| A: Yeah. I just pleaded down to a misdemeanor. A copy of that letter from my lawyer... |
| A: I paid full restitution on that matter and to this day I say I"m very sorry for what I did. |
| Q: The amount - - the total amount of your theft was eleven thousand dollars ($11,000)? |
| A: Yes, sir. So I made full restitution of it. |
| Q: This is the letter you were referring to from your lawyer. It describes what happened in court. I"d like to (inaudible " tape cut off). |
| - - - EXHIBIT C-3: Letter from lawyer |
| Q: And this is a copy of California Code 487 for Grand Theft. |
| ADJUDICATOR: That"s Exhibit C-4. |
| - - - EXHIBIT C-4: Copy of the California Code 487 for Grand Theft |
| CASE PRESENTING OFFICER: Thank you, I have nothing else. |
| ADJUDICATOR: Is there anything you wish to add, sir? Any evidence you have? |
| PERSON CONCERNED: No, sir. I just want to go back to my country as soon as possible. |
| ADJUDICATOR: Okay, well there"s no dispute to the evidence. You"re clearly not a Canadian citizen or permanent resident of Canada. When I looked at the U.S. law and compared it to Canadian law, I find the equivalencing (inaudible) as contained in the Court to be correct and this requires a mandatory Deportation Order. |
| PERSON CONCERNED: Yes, sir. |
[4] After the hearing it appeared, on the deposition of the applicant"s former counsel in the United States, that the applicant"s conviction for the first offence referred to, in 1991, was appealed successfully, and the conviction was set aside. Further, the second offence referred to, in 1994, ultimately led to a conviction for a misdemeanour on the basis of a plea bargain. Following the hearing and decision of the adjudicator that evidence, at least concerning the first offence, was provided by Mr. Soriano's former counsel to his counsel on this application. It was not before the adjudicator.
[5] It is urged on behalf of the applicant that the adjudicator, in determining the equivalence between the offence under the United States law and a comparable offence under Canadian law, must examine the statutes in question to see if the two offences are equivalent. In so doing, it is said the adjudicator must establish the essential elements of the offences under the respective laws. It is urged that, under the law in both the United States and Canada an essential element of any conviction is whether or not following a conviction there was a successful appeal. In relation to the second offence here in issue, it is urged the adjudicator was required to consider the equivalent of a conviction for a misdemeanour, not the equivalent of grand theft with which the applicant had originally been charged.
[6] In essence, it is urged that an adjudicator, in conducting an inquiry in relation to a report that a person may be one described within paragraph 19(1)(c.1)(i), has a duty to inquire whether there has been an appeal, and if so about its outcome, and whether a reported conviction for an offence has ultimately resulted in conviction for a lesser offence on a plea bargain or other arrangement.
[7] I am not persuaded that the adjudicator has such a duty. Clearly, where an issue is raised before him whether a conviction under a foreign law is equivalent to a conviction under Canadian law, he must examine essential elements of the offences which are said to be comparable. Where there is no such issue raised, as in this case, in my opinion, the adjudicator is entitled to rely on the evidence adduced by the report of the immigration officer and by the person concerned. In judicial review of that decision, this Court is concerned with whether the finding of the adjudicator in terms of equivalency of the offences is correct on the basis of the evidence before the adjudicator, who has no duty to conduct an inquiry beyond the evidence that is presented to him. It is worth noting that in this case the adjudicator advised the applicant at the commencement of the hearing:
| ADJUDICATOR: Sir, you have the right to be represented by a lawyer or some other person before this proceeding and I"m prepared to adjourn this to another date to give you that opportunity. A further option that you have is to represent yourself. |
| PERSON CONCERNED: I"m representing myself. |
[8] I find no error in law and no error in fact on the basis of the evidence before the adjudicator that would warrant intervention by this Court. On that evidence, at least the finding of fact of a conviction in regard to the 1991 offence was reasonable, and determining its equivalence with an offence under Canadian law punishable as provided in paragraph 19(1)(c.1)(i) was not an error. Nor was that equivalence questioned, except on the basis of evidence available only after the hearing that following conviction for the offence charged the applicant had successfully appealed.
[9] Thus, the application for judicial review is dismissed, as is confirmed by written order.
[10] The applicant submitted that the following question be certified for consideration by the Court of Appeal pursuant to subsection 83(1) of the Immigration Act:
| Does an adjudicator, in conducting an inquiry to determine whether a person concerned is one within paragraph 19(1)(c.1)(i) of the Immigration Act, have a duty to inquire whether a reported conviction of the person in another country was appealed and, if so, whether the outcome was successful and, whether a reported conviction was for the offence reported or a lesser offence? |
[11] A certified question when answered should dispose of an appeal; see Liyanagamage v. Canada (Minister of Citizenship and Immigration), (1994), 176 N.R. 4. The proposed question arises on the basis of the argument before me. While on the facts of the case, the issue was not raised before the adjudicator, the question concerning the duty of that officer at an inquiry is a serious question of general importance, in my opinion. If answered in the affirmative by the Court of Appeal that would dispose of any appeal in this matter.
[12] The Order now issued certifies the question proposed as a serious question of general importance for it concerns the responsibilities of an adjudicator in conducting an inquiry under the Act in regard to certain persons reported as inadmissible to Canada.
(signed) W. Andrew MacKay
___________________________
JUDGE
OTTAWA, Ontario
August 29, 2000