MB0-07763

Immigration and Refugee Board Refugee Protection Division Commission de l'immigration et du statut de réfugié Section de la protection des réfugiés RPD File No. / No de dossier de la SPR : MB0-07763 Private Proceeding Huis clos Claimant(s) Demandeur(e)s d'asile XXXX XXXX XXXX Date(s) of Hearing Date(s) de l'audience August 28, 2012 December 13, 2012 Place of Hearing Lieu de l'audience Montréal, Québec Date of Decision Date de la décision December 20, 2012 Panel Tribunal Me Alain Bissonnette Claimant's Counsel Conseil du demandeur d'asile Me Mylene Barriere Tribunal Officer Agent du tribunal Stéphane Morin ?Filing of documents? Designated Representative Représentant désigné N/A Minister's Counsel Conseil du ministre Salvatore D'Aloia INTRODUCTION [1] XXXX XXXX XXXX, the claimant, who claims to have been born in the Bahamas and to be a citizen of that country only, is claiming refugee protection under sections 96 and 97 of the Immigration and Refugee Protection Act (the Act), alleging a well-founded fear of persecution by reason of his nationality and alleging that he would be personally subjected to torture, to a risk to his life, and to cruel and unusual treatment or punishment should he return to live in the Bahamas. [2] The Minister of Public Safety (the Minister) intervened in this claim for refugee protection.1 SUMMARY OF ALLEGED FACTS [3] In his Personal Information Form (PIF), the claimant alleged that he was born in the Bahamas to parents who were born in Haiti. He also alleged that, in 1974, his father was killed by thieves and that the following year, his mother was deported to Haiti by the Bahamian government. [4] The claimant alleged that after his mother's death in 1999, he suffered from the systemic discrimination practised against citizens of his country who are of Haitian origin. [5] The claimant alleged that in 2008, after XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, he was attacked by three armed individuals, who took everything he had, beat him up and told him that they would kill him. He also alleged that they told him that he had to stop XXXX XXXX XXXX. [6] The claimant alleged that someone called the police, who brought him home and told him that they would investigate. He also alleged that, although he followed up, nothing ever came of the investigation. [7] The claimant alleged that he continued XXXX XXXX XXXX XXXX XXXX. [8] The claimant alleged that, on XXXX XXXX, 2010, two individuals came to his house and asked him for money. He told them that he did not have any, and they then threatened to kill him. He also alleged that they fought and that they left; he then went to the police station to file a complaint, only to find himself face to face with one of the individuals who had just been at his house. This person slapped him in the face, and he was placed in detention for 78 hours. [9] The claimant alleged that he was released on XXXX XXXX, 2010. He also alleged that he decided to leave the Bahamas after this incident. [10] The claimant alleged that, on XXXX XXXX, 2010, while he was on his way to the XXXX XXXX, two police officers stopped beside his car, called him by his name, said to him that he was [translation] "gay" and Haitian, and forced him to report to the police station for an investigation. He also alleged that he was detained for one night, that $200 was taken from him, and that he was released on XXXX XXXX XXXX 2010. [11] The claimant alleged that he then rented the house of a friend for two days and that he left the Bahamas on XXXX XXXX, 2010, to go to Canada. He filed his claim for refugee protection over XXXX months later, on December 10, 2010. [12] The Minister alleged that there are serious reasons for considering that the claimant, using the identity of XXXX XXXX XXXX, born in Haiti on XXXX XXXX, 1974, committed a serious non-political crime in XXXX 2007 in the United States of America. ANALYSIS OF THE POSSIBILITY OF EXCLUDING THE CLAIMANT [13] After the claimant filed his claim for refugee protection in Canada, the Canadian authorities conducted checks using his fingerprints and learned that, in the United States of America, the claimant, using the identity of XXXX XXXX XXXX, had been arrested and charged with several offences2 and that an arrest warrant had been issued against him after he failed to appear in court in order to answer to the charges brought against him.3 [14] The following charges were brought against XXXX XXXX XXXX: a) Terroristic threats [Title 2C:12-3a]; b) Obstructing governmental function [Title 2C:29-1a] c) Resisting arrest [Title 2C:29-2a] d) Unlawful possession of a weapon [Title 2C:39-5d] e) Defiant trespass [Title 2C:183b(1)]4 [15] In an affidavit5 and in his testimony at the hearing, the claimant formally denied being XXXX XXXX XXXX and having been arrested and charged with the abovementioned offences. [16] After his counsel contacted US authorities, in a letter dated November 9, 2012, Ms. Kimberly J. Del Greco replied with the following: Reference is made to your correspondence, with fingerprints and an $18 processing fee, requesting a search of the FBI Criminal File for any record pertaining to your client, Mr. XXXX XXXX XXXX. Pursuant to U.S. Department of Justice Order 556-73, your client's fingerprints were searched through the FBI Criminal File and a record was located. However, the FBI does not honor requests for documents made by individuals who are currently fugitives from justice. A check of the Wanted Person File of the National Crime Information Center disclosed an active warrant for your client's arrest. The warrant was issued in the name of XXXX XXXX on XXXX XXXX XXXX 2007, by the XXXX County Sheriff, XXXX XXXX XXXX XXXX XXXX XXXX, New Jersey XXXX XXXX XXXX, telephone XXXX XXXX XXXX XXXX XXXX XXXX, for "Failure to Appear - Terroristic Threats, Eluding Police, Resisting Arrest and Unlawful Possession of Weapon." This warrant is still outstanding. In Doyle v. United States Department of Justice 494 F. Supp. 842 (1980), the court ruled that one who has removed himself from the jurisdiction of the courts has no claim upon them. In view of this, until your client returns to the jurisdiction of a court within the United States or otherwise resolves the outstanding warrant previously described, no identification records will be made available to him from this Division. Regarding your concern that two different searches were performed, the FBI's Criminal Justice Information Services Division conducted only one search for Mr. XXXX by the fingerprints your office submitted. The names of XXXX XXXX XXXX and XXXX XXXX XXXX were provided to the FBI by arrest fingerprint submissions and were determined to be the same person.6 [17] It is common knowledge that the concept of procedural fairness is eminently variable and that its content is to be decided in the specific context of each case.7 It is also common knowledge that administrative tribunals operate less formally and more expeditiously than courts of law. The Act requires the Refugee Protection Division (RPD) to deal with proceedings before it informally, quickly and fairly.8 The RPD is not bound by the usual rules of evidence; it may receive and base its decision on elements of proof, considered to be credible and trustworthy.9 At the beginning of the hearing, I admitted into evidence the documents filed by the Minister and by the claimant. I find that the information contained in the adduced documents, including the police report10 and those resulting from the exchanges between counsel for the claimant and representatives of the US authorities, constitute evidence that is reliable or trustworthy.11 It is also my opinion that after receiving the notice of intervention and the documents from the Minister, the claimant had a reasonable opportunity to present evidence and to question witnesses who could have contradicted the information contained in the documents filed into evidence, which he did not do, except for relying on his own testimony. Of the claimant's testimony and the information contained in the documents filed into evidence indicating that the claimant, using the identity of XXXX XXXX XXXX, was arrested, charged with various offences and declared a fugitive from US justice, I find that more weight should be given to the information contained in the documents coming from the US authorities, having considered the fact that mistakes can be made. In my opinion, reaching this conclusion is not a breach of procedural fairness. [18] The police report describes the XXXX 2007 events as follows: On XXXX XXXX XXXX-2007 at 21:10 hrs (Case # XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX) were dispatched to XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX). The XXXX XXXX Owner XXXX XXXX told us that he had a business dealing with XXXX XXXX XXXX which involved a weekly XXXX type function. XXXX terminated XXXX from any future functions on XXXX XXXX XXXX XXXX2007. On XXXX XXXX XXXX-2007 XXXX allegedly told XXXX that he was no longer welcome to come onto XXXX XXXX Property and any future entry onto the XXXX XXXX property would be considered trespassing. XXXX was allegedly the organizer of events atXXXX XXXX XXXX involving "XXXX XXXX" nights including events on the evening of XXXX XXXX XXXX/07. According to XXXX after this XXXX became angry and started harassing XXXX by phone day after day. On XXXX XXXX XXXX XXXX07 XXXX allegedly called XXXX at XXXX XXXX and told him he was coming over with a "gang" from XXXX and he (XXXX) was going to be there and there was going to be a problem. XXXX said he feld threatened by XXXX and alarmed by these calls. XXXX was advised on legal proceedings and P/O XXXX and I placed a request for XXXX XXXX XXXX property to get police passing attention. We were not able to track down XXXX on XXXX XXXX XXXX XXXX07 and speak to him. XXXX was mostly concerned that XXXX would show up at night functions at XXXX XXXX. I spoke to midnight shift supervisors Sgt XXXX XXXX & Lt XXXX XXXX and made them aware of the problem. On XXXX XXXX XXXX-2007 P/O XXXX and I were dispatched XXXX XXXX XXXX to investigate new complaints by Mr XXXX. XXXX told us that he was still being harassed by XXXX. Most recently today starting at approx 19:00 hrs, XXXX allegedly called XXXX several times yelling "Fuck you" approx 5 times. According to XXXX, XXXX sounded angry was loud and intimidating. XXXX allegedly told XXXX "I'm going to come over and get you!" XXXX said he was afraid for his safety and wanted police protection. XXXX said he believed XXXX was capable of causing him harm. P/O XXXX and I made further attempts to identify XXXX. With the assistance of dispatcher (via phone) we were able to identify XXXX address, that he had a NJ ID only from NJ DMV and that he was the registered owner of a XXXX XXXX XXXX NJ Reg XXXX XXXX. While we were inside XXXX XXXX near the main entrance obtaining this info, we saw a car enter the XXXX XXXX property but then lost sight of it. P/O XXXX XXXX stepped outside the main glass doors. At the time the car entered it had its lights on but after a few seconds it was no longer in sight. P/O XXXX reported that he heard the sound of a car door being closed. At this point I also cam outside. We saw a XXXX XXXX XXXX travelling with no lights on travelling across the XXXX XXXX parking lot now moving away from us. The vehicle was illuminated by street lamps well enough that I clearly identified it as a XXXX XXXX. We ran to our police car (unit XXXX) and drove after the XXXX XXXX. The XXXX sped up quickly racing across a grass median to a access road which led to XXXXRoad. I broadcast an alert of the incident as it was in progress. The XXXX went to XXXX Rd and at this point I momentarily lost sight of it as to direction on XXXX Road. The XXXX was spotted again on XXXX XXXX XXXX near XXXX XXXX by P/O XXXX & XXXX. The XXXX drove into the park stopped and the driver exited the vehicle and fled on foot. P/O XXXX and I responded to XXXX XXXX XXXX. The driver was found hiding under a bush near the parking lot where he abandoned his car. The driver was later identified as XXXX XXXX XXXX. In plain view on the front drivers floor of the XXXX was a large knife with a jagged edge blade approx 8 inches long and a white colored handle. XXXX was told he was under arrest and was initially combative. He was sprayed with pepper spray and submitted to being handcuffed then he became combative again rolling his body on the ground resisting the search procedure and after being searched he resisted being put into the rear of unit XXXX for transport. Some compliance holds were used to control XXXX who was not injured. XXXX was transported to Police HQ and given the opportunity to wash his face with water. He made several comments that he was no longer going to fight with police. XXXX was advised of the knife we saw in plain view and asked if he would sign a consent to search form so we could recover the knife. He was advised of his right to refuse the search via the standard consent search form both verbally and in writing. XXXX allowed us to recover the knife by consent form. See P/O XXXX ET reports for details. I signed the listed complaints against XXXX who was held on $ 25,500.00 bail 10% on warrant # s XXXX XXXX XXXX & XXXX. XXXX was in possession of a US Dept of Homeland Security immigration temporary employment authorization card which expired on XXXX XXXX XXXX XXXX2006 and had a Social Security card which indicated was valid for work only with XXXX authorization. " 12 [19] The primary purpose of Article 1F(b) of the Refugee Convention13 is to ensure that perpetrators of serious non-political crimes are not entitled to international protection in the country in which they are seeking asylum. In other words, the effect of a finding under this provision is that the claimant is excluded from accessing the refugee determination process in Canada and cannot, therefore, be found to be a Convention refugee.14 An exclusion hearing under these provisions is not in the nature of a criminal trial where guilt or innocence must be proven beyond a reasonable doubt.15 The standard of proof in determining whether an individual has committed, or been complicit in crimes or acts mentioned in Article 1F of the Convention is that of "serious reasons for considering." This standard of proof is more than a mere suspicion, but less than the civil standard of a balance of probabilities.16 In short, I must assess and weigh the evidence that I have accepted as credible or trustworthy17 in the circumstances and determine whether the test of "serious reasons for considering" has been met with regard to the serious non-political crime alleged.18 [20] The Minister alleged that, in light of the information contained in the police report, it is established that, on XXXX XXXX, 2007, in XXXX, New Jersey, the claimant was arrested and charged with unlawful possession of a weapon. The provision from the relevant legislation reads as follows: 2C: 39-5 Unlawful possession of weapons. d. Other weapons. Any person who knowingly has in his possession any other weapon under circumstanceds not manifestly appropriate for such lawful uses as it may have is guilty of a crime of the fourth degree.19 [21] The Minister alleged that if this offence had been committed in Canada, it would constitute the offence of possession of a weapon for a dangerous purpose as described in subsection 88(1) of the Criminal Code, an offence that is punishable by imprisonment for a term not exceeding 10 years.20 [22] In turn, counsel for the claimant challenged this allegation and argued that the offence with which her client was charged in the United State of America, if it is established that her client truly is XXXX XXXX XXXX, which he also refuted, does not constitute possession of weapons for unlawful purposes. In that regard, she submitted that another provision of the New Jersey legislation corresponds to section 88 of the Criminal Code, while emphasizing that her client had not been charged with this offence: 2C:39-4. Possession of weapons for unlawful purposes. d. Other weapons. Any person who has in his possession any weapon, except a firearm, with a purpose to use it unlawfully against the person or property of another is guilty of a crime of the third degree. 21 [23] First, an exclusion hearing under Article 1F of the Convention is not in the nature of a criminal trial where guilt or innocence must be proven by the Minister beyond a reasonable doubt. In other words, it is not my role today to establish the actual innocence or guilt of the claimant. The onus on the Minister, however, is to establish, based on the evidence presented to the RPD, that there are "serious reasons for considering" that the claimant committed a serious non-political crime in the United States, prior to his arrival in Canada.22 Second, Article 1F of the Convention must be seen as a means of bringing refugee law into line with the basic principles of extradition law, by ensuring that fugitives are not able to avoid the jurisdiction of a state in which they may lawfully face punishment.23 Lastly, in questions of exclusion under Article 1F(b) of the Convention, there is no need for the foreign law to be absolutely equivalent to the relevant Canadian offence.24 The focus must be on whether the acts of the claimant could be considered crimes under Canadian law.25 In other words, the situation must be analyzed in light of what would result from similar acts if they had been committed in Canada.26 [24] The police report describing the incident that occurred on XXXX XXXX, 2007, indicates that the claimant had previously, on several occasions, threatened the person who had just terminated an agreement between him and the claimant by telling him that he would come with a gang and that there would be a problem. The person was afraid of the claimant's threats against him and called the police and gave them his version of the facts. In practice, when the claimant arrived by car close to the establishment of the person in question, the police officers were already on the scene. In short, it can be assumed from this situation that the claimant was coming to the premises to carry out the threats he had previously made to the person in question. In this context, I do not find it trivial that a large knife (a large knife with a jagged edge blade approx 8 inches long) was found in the claimant's car. In fact, it can be readily inferred from the situation as a whole that the claimant intended to use this knife to carry out the threats he had previously made against his potential victim. Consequently, I find that the Minister has established that there are serious reasons for considering that the claimant had such a knife in his possession for a purpose dangerous to the public peace or for the purpose of committing an offence against his potential victim. The fact that the US authorities chose to charge the claimant with a less serious offence does not limit the reasonableness of such an inference. [25] Under Canadian law, when a person is found guilty of possessing a weapon for a dangerous purpose, that person is liable to imprisonment for a term not exceeding 10 years if he or she is charged with a criminal offence.27 In my opinion, this reference to the way in which the Canadian parliament, or, put another way, the legislation of the receiving state considers this offence establishes a presumption that this offence is indeed a serious non-political crime.28 I note that this presumption of the seriousness of a non-political crime can be established by referring solely to the manner in which the receiving state considers the crime.29 [26] Having said that, the presumption may be rebutted: . . . there is a consensus among the courts that the interpretation of the exclusion clause in Article 1F(b) of the Convention, as regards the seriousness of a crime, requires an evaluation of the elements of the crime, the mode of prosecution, the penalty prescribed, the facts and the mitigating and aggravating circumstances underlying the conviction. In other words, whatever presumption of seriousness may attach to a crime internationally or under the legislation of the receiving state, that presumption may be rebutted by reference to the above factors. [citations omitted]30 Elements of the crime [27] According to the police report, it is clear that the claimant made several threats against the person who could have become his victim. It is also clearly established that a large knife was found in the car in which the claimant drove to the scene where, ultimately, police officers prevented him from carrying out his threats. The case law supports the view that the accused's purpose under section 88 of the Criminal Code must be determined wholly subjectively. To avoid importing an objective element into a purely subjective approach, the concept of a "purpose dangerous to the public peace" needs to be given concrete content. Within the meaning of subsection 88(1), it is the possession of a weapon with the intention of doing harm to persons or property, or showing reckless disregard for harm to persons or property. Subsection 88(1) does not require actual use of the weapon, but does require possession of a weapon coupled with an additional intention.31 [28] As I indicated previously, the police report specified that the claimant had previously, on several occasions, threatened the person who had just terminated an agreement between him and the claimant by telling him that he would come with a gang and that there would be a problem. The person was afraid of the claimant's threats against him and called the police and gave them his version of the facts. In practice, when the claimant arrived by car close to the establishment of the person in question, the police officers were already on the scene. In short, it can be assumed from this situation that the claimant was coming to the premises to carry out the threats he had previously made to the person in question. In this context, it can be readily inferred from the situation as a whole that the claimant intended to use the knife in his car to carry out the threats he had previously made against his potential victim or, in other words, with the intention of doing harm to persons or property, or showing reckless disregard for harm to persons or property. It must be noted here that the present proceeding is not a criminal trial where the claimant's guilt must be established beyond a reasonable doubt. I must simply consider whether the Minister has established that there are "serious reasons for considering" that the claimant intended to use the knife in his car to carry out the threats he had previously made to his potential victim, or, put another way, with the intention of doing harm to persons or property, or showing reckless disregard for harm to persons or property. In my opinion, this question must be answered in the affirmative. [29] It is sufficient for me to arrive at the conclusion that there are serious reasons for considering that in the United States of America, the claimant acted in such a manner that, if he had acted in the same manner in Canada, he could have been charged and potentially found guilty of the offence of possession of a weapon for a dangerous purpose,32 without, however, having to identify each element of the particular offence.33 Mode of prosecution [30] In his notice of intervention, the Minister did not clarify whether, in the state of New Jersey, the offences with which the claimant was charged fall into the category of felonies, a category that is different from offences deemed to be less serious and characterized as misdemeanours. At the hearing, the Minister's representative stated that, in the state of New Jersey, the distinction between offences considered to be felonies and those considered to be misdemeanours does not exist. [31] In Canada, the perpetrator of the offence of possession of a weapon for a dangerous purpose is either prosecuted by indictment or on summary conviction.34 As indicated in the case law: Canada . . . has a fair number of hybrid offences, that is to say offences which, depending on the mitigating or aggravating circumstances surrounding their commission, can be prosecuted either summarily or more severely as an indictable offence. In countries where such a choice is possible, the choice of the mode of prosecution is relevant to the assessment of the seriousness of a crime if there is a substantial difference between the penalty prescribed for a summary conviction offence and that provided for an indictable offence.35 [32] That being said, in Canada, hybrid offences are treated as indictable offences unless the Crown elects to proceed by way of summary conviction.36 Penalty prescribed [33] In his submissions, the Minister's representative stated that the offence with which the claimant was charged, namely, possession of a weapon, in the state of New Jersey could have resulted in a term of imprisonment not exceeding 18 months.37 That being said, if he had been charged with the offence of possession of a weapon for an unlawful purpose, under section 2C: 39-4 of the relevant New Jersey legislation, he could have been sentenced to a term of imprisonment not exceeding five years.38 [34] It is appropriate, however, to analyze the situation in light of what could have resulted from similar acts if they had been perpetrated in Canada.39 In Canada, the offence of possession of a weapon for a dangerous purpose is punishable by imprisonment for a term not exceeding 10 years when the person found guilty of the offence was prosecuted by indictment and not on summary conviction.40 [35] That being said, in Canada, hybrid offences are treated as indictable offences unless the Crown elects to proceed by way of summary conviction.41 Surrounding facts [36] Among the surrounding facts related to the charges brought against the claimant in the United States of America, the fact that, according to US authorities, the claimant is a fugitive from justice of that country is important in my opinion: Pursuant to U.S. Department of Justice Order XXXX XXXX XXXX, your client's fingerprints were searched through the FBI Criminal File and a record was located. However, the FBI does not honor requests for documents made by individuals who are currently fugitives from justice. A check of the Wanted Person File of the National Crime Information Center disclosed an active warrant for your client's arrest. The warrant was issued in the name of XXXX XXXX on XXXX XXXX, 2007, by the XXXX County Sheriff, XXXX XXXX XXXX XXXX XXXX XXXX, New Jersey XXXX XXXX XXXX, telephone (XXXX XXXX XXXX XXXX XXXX, for "Failure to Appear - Terroristic Threats, Eluding Police, Resisting Arrest and Unlawful Possession of Weapon." This warrant is still outstanding.42 Mitigating and aggravating circumstances underlying the conviction [37] What is at issue here are the mitigating and aggravating circumstances in terms of the nature of the crime committed. In other words, the analysis of these mitigating and aggravating circumstances does not take into account later circumstances that might establish that the claimant has been rehabilitated or that he is not a danger to society.43 [38] At the hearing, the claimant constantly denied being the person who was arrested and charged in the United States of America under the name of XXXX XXXX XXXX. In short, he did not attempt to present any mitigating circumstances, but rather stated that he never committed this offence. [39] Having considered all of the applicant's testimony and the documentary evidence, I conclude that the statements made by the claimant at the hearing in order to deny his responsibility for the charges brought against him are not mitigating circumstances in terms of the nature of the crimes of which he was found guilty by US authorities. CONCLUSION ON THE CLAIMANT'S EXCLUSION [40] I am aware of the general principles governing exclusion, according to which the provisions concerning exclusion should be narrowly construed. It has been established in the case law that repeated acts of shoplifting, for example, are not "serious" crimes within the meaning of Article 1F(b) of the Refugee Convention.44 Having said that, in my view, the offence of possession of a weapon for a dangerous purpose, even if, ultimately, no violence was committed, cannot be compared to repeated minor crimes such as shoplifting. [41] According to Canadian case law, regardless of whether the crime entailed violence, as soon as a crime committed by a refugee protection claimant before the claimant's arrival in the country is equivalent to an offence that, in Canada, is liable to imprisonment for a term not exceeding 10 years, it is permissible to conclude that the offence is a serious non-political crime,45 a test that the Federal Court of Appeal of Canada subsequently held to be valid.46 [42] In my opinion, in Canada, the offence of possession of a weapon for a dangerous purpose is a serious one, since it can result in imprisonment for 10 years. It is my view, moreover, that it is legitimate for a country of refuge to protect its own people by closing its borders to a criminal whom it regards as undesirable because of the seriousness of the non-political crime which it suspects this criminal of having committed.47 [43] In light of all of the evidence, including the claimant's testimony, and after having analyzed the factors to be reviewed as a whole and not in isolation,48 I conclude that the Minister has discharged his burden of establishing that there is more than a mere suspicion that there are serious reasons for considering that the claimant committed a serious non-political crime outside Canada before claiming refugee protection in Canada. [44] Consequently, the claimant is a person referred to in Article 1F(b) of the Refugee Convention and, under section 98 of the Act, he cannot be considered a refugee or a person in need of protection. In other words, he is excluded by application of the Refugee Convention. [45] For these reasons, his claim for refugee protection is rejected. Alain Bissonnette Me Alain Bissonnette December 20, 2012 Date IRB translation Original language: French 1 Notice of intervention (Exclusion 1 F b)) submitted by the Minister for Public Safety dated August 9th, 2012, 4 pages. 2 Notice of intervention, at paragraphs 2, 3, and 4, and documents M-2: Copy of fingerprint match (pp. 5-6); M-3: Copy of printout from the National Crime Information Center (NCIC) (pp. 7-12); and M-4: Copy of police report from XXXX Police Department (pp. 13-26). 3 Idem, at paragraph 5, and Document M-5: Copy of court documents from the Superior Court of XXXX County (pp. 27-30). 4 Idem, at paragraph 4, and Document M-4: Copy of police report from XXXX Police Department (pp. 13-26). 5 P-2: Affidavit of the claimant, dated July 10th, 2012. 6 P-67: Letter from Biometric Services Section to claimant's counsel, dated November 9th, 2012 (p. 27). 7 Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at paragraph 21. 8 Kumar v. Canada (Minister of Citizenship and Immigration), No. IMM-5014-08, Shore, June 18, 2009; 2009 FC 643, at paragraph 31. 9 Idem, at paragraph 29. In paragraph 30 of this decision, the Honourable Justice Shore cites subsection 162(2) and paragraphs 170(a) to (h) of the Act. 10 M-4: Copy of police report from XXXX Police Department (pp. 13-26). At page 16, XXXX XXXX is described as using XXXX XXXX as another name; the claimant admits using the name of XXXX XXXX; XXXX XXXX is described as having a tattoo on XXXX arm, representing an XXXX XXXX XXXX XXXX"; the claimant admits to having an identical tattoo on his XXXX; XXXX XXXX is described as being a XXXX; the claimant admits that he is a XXXX XXXX XXXX. 11 See section 170 of the Act, particuarly paragraph (h), which indicates that the RPD, in any proceeding before it, may receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances. 12 M-4: Copy of police report from XXXX Police Department (pp. 13-26), at page 15. 13 Convention Relating to the Status of Refugees. 14 Quintana Murillo v. Canada (Minister of Citizenship and Immigration), No. IMM-930-08, Shore, August 26, 2008; 2008 FC 966, paragraph 23. 15 Ibidem, paragraph 24. 16 Farkas v. Canada (Minister of Citizenship and Immigration), No. IMM-2128-06, Snider, March 9, 2007; 2007 FC 277, paragraph 8. Canada (Minister of Citizenship and Immigration) v. Maan, No. IMM-2003-05, Martineau, December 9, 2005; 2005 FC 1682, paragraph 14. 17 It should be noted here that, under paragraphs (g) and (h) of section 170 of the Act, the Refugee Protection Division (RPD), in any proceeding before it, is not bound by any legal or technical rules of evidence, and may receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances. 18 Kovacs v. Canada (Minister of Citizenship and Immigration), No. IMM-8183-04, Snider, October 31, 2005; 2005 FC 1473, at paragraph 17. 19 M-6: Copy of Title 2C section 39-5 (pp. 31-33), at page 32. 20 "88. (1) [Possession of weapon for dangerous purpose - ]Every person commits an offence who carries or possesses a weapon, an imitation of a weapon, a prohibited device or any ammunition or prohibited ammunition for a purpose dangerous to the public peace or for the purpose of committing an offence. (2) [Punshiment - ]Every person who commits an offence under subsection (1) (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years; or (b) is guilty of an offence punishable on summary conviction." 21 M-6: Copy of Title 2C section 39-5 (pp. 31-33). 22 Vlad v. Canada (Minister of Citizenship and Immigration), No. IMM-1800-06, Snider, February 15, 2007; 2007 FC 172, at paragraph 17. 23 Idem, at paragraph 18. 24 Idem, at paragraph 22. 25 Idem. 26 Spartak Radi v. Canada (Minister of Citizenship and Immigration), No. IMM-2928-11, Near, January 5, 2012; 2012 FC 16, at paragraph 23. Read also Cabreja Sanchez v. Canada (Minister of Citizenship and Immigration), No. IMM-7113-11, O'Keefe, September 26, 2012; 2012 FC 1130, at paragraph 49: "[N]o equivalency analysis is required with respect to an exclusion determination under section 98 of the Act. . . . The focus must be on whether the acts of the claimant could be considered crimes under Canadian law." 27 Subsection 88(2) of the Criminal Code. 28 Jayasekara v. Canada (Minister of Citizenship and Immigration), No. A-140-08, Létourneau, Sharlow, Pelletier, December 17, 2008; 2008 FCA 404, at paragraphs 43 et 44. 29 Idem, at paragraph 44. For a similar persepctive, also read Spartak Radi v. Canada (Minister of Citizenship and Immigration), No. IMM-2928-11, Near, January 5, 2012; 2012 FC 16, at paragraph 15. 30 Idem, at paragraph 44. 31 R. v. Kerr, [2004] 2 S.C.R. 371. 32 Under subsection 88(1) of the Criminal Code. 33 Lai Cheong Sing v. Canada (Minister of Citizenship and Immigration), No. A-191-04, C. J. Richard, J. Malone, J. Sharlow, April 11, 2005; 2005 FCA 125, at paragraphs 56, 57 and 59. 34 Under subsection 88(2) of the Criminal Code. 35 Jayasekara v. Canada (Minister of Citizenship and Immigration), No. A-140-08, Létourneau, Sharlow, Pelletier, December 17, 2008; 2008 FCA 404, at paragraph 46. 36 Canada (Minister of Citizenship and Immigration) v. Vinod Kuman Raina, No. IMM-7164-11, Shore, May 23, 2012; 2012 FC 618, at paragraph 32. 37 He therefore filed in evidence a document entitled New Jersey Permanent Statutes Database, which refers to section 2C: 43-6 Sentence of imprisonment for crime; ordinary terms; mandatory terms. Paragraph 4 of this section states the following: "In the case of a crime of the fourth degree, for a specific term which shall be fixed by the court and shall not exceed 18 months." 38 Idem, at paragraph 3 of this section: "In the case of a crime of the third degree, for a specific term of years which shall be fixed by the court and shall be between three years and five years." 39 Spartak Radi v. Canada (Minister of Citizenship and Immigration), No. IMM-2928-11, Near, January 5, 2012; 2012 FC 16, at paragraph 23. 40 "88. (1) [Possession of weapon for dangerous purpose - ]Every person commits an offence who carries or possesses a weapon, an imitation of a weapon, a prohibited device or any ammunition or prohibited ammunition for a purpose dangerous to the public peace or for the purpose of committing an offence. (2) [Punshiment - ]Every person who commits an offence under subsection (1) (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years; or (b) is guilty of an offence punishable on summary conviction." 41 Canada (Minister of Citizenship and Immigration), No. IMM-7164-11, Shore, May 23, 2012; 2012 FC 618, at paragraph 32. 42 P-67: Letter from Biometric Services Section to claimant's counsel, dated November 9th, 2012 (p. 27). 43 Camacho v. Canada (Minister of Citizenship and Immigration), No. IMM-6140-10, Mosley, June 28, 2011; 2011 FC 789, at paragraph 16: "The applicant argued that the fifth Jayasekara factor implicitly calls for a balancing of the mitigating and aggravating circumstances since the conviction. I don't agree. The mitigating and aggravating circumstances referred to in Jayasekara go to the nature of the crimes committed, not to what might later be considered as factors to be taken into account in determining whether the offender/claimant has been rehabilitated. Thus, for the purpose of determining whether the exclusion applies, it is not enough for a claimant to say he now regrets his behaviour and has turned his life around if his behaviour at the time it was committed constituted a serious non-political crime." Febles v. v. Canada (Minister of Citizenship and Immigration), No. IMM-7327-10, Scott, September 27, 2011; 2011 FC 1103, at paragraph 51: "The Applicant's position that the Board member should have considered whether he currently posed a danger to the Canadian public and should consequently have assessed his rehabilitation is not supported by paragraph 44 of the Federal Court of Appeal's decision in Jayasekara. The only balancing allowed must be related to the circumstances underlying the conviction and the completion of the sentence and not to events that occurred thereafter." Cuero v. v. Canada (Minister of Citizenship and Immigration), No. IMM-2880-11, O'Reilly, February 9, 2012; 2012 FC 191, at paragraph 10: "In my view, the Board must simply determine whether a crime was committed, and whether it was a "serious non-political crime". Factors extraneous to the conviction, such as rehabilitation, should not be considered in evaluating the seriousness of an applicant's offence: [citations omitted]." Feimi v. Canada (Minister of Citizenship and Immigration), No. IMM-5890-11, Martineau, February 27, 2012; 2012 FC 262, at paragraph 31 : "The applicant failed to satisfy me that what was said about the scope of the mitigating and aggravating circumstances referred to in Jayasekara, above, is clearly wrong. Indeed, there is no reason in law to depart from the reasoning of my colleagues in Cuero, Febles and Camacho, above. Accordingly, no reviewable error can be made by the Board in not considering factors relating to rehabilitatio or to current dangerousness to the public." 44 Brzezinski v. Canada (Minister of Citizenship and Immigration), No. IMM-1333-97, Lufty, March 24 and July 9, 1998; [1998] 4 FC 525; 1998 CanLII 9070 (FC); 148 FTR 296. 45 Xie v. Canada (Minister of Citizenship and Immigration), No. IMM-923-03, Kelen, September 4, 2003; 2003 FC 1023, at paragraphs 25 to 31. Zeng v. Canada (Minister of Citizenship and Immigration), O'Keefe, August 19, 2008; 2008 FC 956, at paragraph 65. 46 Jayasekara v. Canada (Minister of Citizenship and Immigration), No. A-140-08, Létourneau, Sharlow, Pelletier, December 17, 2008; 2008 FCA 404, at paragraph 55: "In determining whether the appellant had been convicted of a serious crime, the Board looked at:. . .(d) the finding of this Court in Chan that a crime is a serious non political crime if a maximum sentence of 10 years or more could have been imposed if the crime had been committed in Canada". 47 Jayasekara v. Canada (Minister of Citizenship and Immigration), No. A-140-08, Létourneau, Sharlow, Pelletier, December 17, 2008; 2008 FCA 404, at paragraph 28, citing J. Décary in Zrig v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 565, at paragraph 119. Benitez Hidrovo v. Canada (Minister of Citizenship and Immigration), No. IMM-3247-09, Lufty, February 2, 2010, 2010 FC 111, at paragraph 5, where, in citing Jayasekara, the Chief Justice of the Federal Court wrote as follows: "The tribunal member could properly conclude that his offence raised issues of 'security and social peace' for the country of refuge . . .." 48 Nava Flores v. Canada (Minister of Citizenship and Immigration), No. IMM-1185-10, Bédard, November 16, 2010; 2010 FC 1147, at paragraphs 58 and 59. REFUGEE PROTECTION DIVISION / EMPLOYMENT / VICTIM OF CRIMINALITY / MINISTER'S INTERVENTION / FILING / IDENTITY DOCUMENTS / FALSE STATEMENTS / FOREIGN OFFENCE / ART. 1FB) / SERIOUS NON-POLITICAL CRIME / EXCLUSION / MALE / NEGATIVE / BAHAMAS --------------- --------------- --------------- --------------- RPD File No. / No de dossier de la SPR : MB0-07763 17