MB3-02690

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 : MB3-02690 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Application to Vacate ? Demande d'annulation Respondent Intimé XXXX XXXX XXXX Applicant Demandeur Minister of Public Safety and Emergency Preparedness Le ministre de la Sécurité publique et de la Protection civile Date(s) of Hearing Date(s) de l'audience December 10, 2013 Place of Hearing Lieu de l'audience Montréal, Quebec Date of Decision Date de la décision January 17, 2014 Panel Tribunal Patrick Lemieux Claimant's Counsel Conseil du demandeur d'asile Me Luciano Mascaro Designated Representative Représentant désigné N/A Minister's Counsel Conseil du Ministre Salvatore D'Aloia REASONS FOR DECISION [1] The Department of Public Safety and Emergency Preparedness (the Minister) served notice on August 2, 2013, under section 109 of the Immigration and Refugee Protection Act (the Act), applying for vacation of the refugee status granted to XXXX XXXX XXXX (the respondent) by the Refugee Protection Division on May 9, 2011. [2] The respondent is a citizen of El Salvador. DETERMINATION [3] For the following reasons, the panel allows the application to vacate the respondent's refugee status. ANALYSIS [4] The Minister argued in his application that, since there were serious reasons for considering that, before coming to Canada to claim refugee protection here, the respondent committed a serious non-political crime in the United States, Article 1F(b), the exclusion clause, should have applied if the panel who granted refugee status (the first panel) had been aware of these facts. [5] The Minister's allegations in support of his position included the following: a. Although the respondent declared that he pleaded guilty to a charge of distributing cocaine in the United States, his description of the circumstances leading up to the charge was that the cocaine found in his possession was solely for his personal consumption and not for the purpose of trafficking. b. Given this version of events and the absence of documents from the American court, the Minister informed the first panel that he did not intend to invoke Article 1F(b), the exclusion clause, of the Convention. c. The applicant's version was maintained before the first panel during the part of the hearing whose purpose was to clarify the circumstances surrounding the charge. More specifically, the respondent testified that he had been stopped by the police when they were searching all the young people in the park where he was. d. Contrary to that version, documents that were subsequently obtained from the American court indicate that the respondent was arrested trying to sell cocaine to an undercover officer. [6] According to the Minister, this behaviour is equivalent in Canada to an offence under paragraph 5(3)(a) of the Controlled Drugs and Substances Act and is punishable by imprisonment for life. [7] Still according to the Minister, had the first panel who initially dealt with the claim for refugee protection been aware of the actual circumstances surrounding the respondent's arrest, its determination would have been different. [8] According to section 109 of the Act, the onus was on the Minister to establish that the decision was obtained as a result of directly or indirectly misrepresenting or withholding material facts relating to a relevant matter. For the following reasons, the panel is of the opinion that the Minister has discharged his burden on this point. It arrived at this conclusion by examining the following questions: i) Was there any misrepresentation? ii) Was it regarding material facts relating to relevant matter? iii) Was the decision to allow the respondent's claim for refugee protection obtained as a direct or indirect result of the misrepresentations? i) Were there any misrepresentations? [9] For the following reasons, the panel is of the opinion that the Minister has established that the respondent misrepresented his situation. [10] In fact, the new evidence1 submitted by the Minister indicates that the respondent was stopped by the police while he was selling drugs with someone named XXXX. Although this evidence is consistent with the evidence before the first panel regarding the charge of cocaine distribution and the guilty plea, it contradicts the evidence regarding the circumstances leading up to the respondent's arrest. In fact, the evidence before the first panel in this regard was that the police were searching all the young people at the park and that they found cocaine on him then-cocaine that the respondent had in his possession because he was consuming it. [11] The respondent denied this new evidence during his testimony. He maintained that he never tried to sell drugs to a police officer and provided a description of the circumstances surrounding his arrest that was in keeping with his previous statements: that he was alone at the park when police officers approached him, identified themselves, told him not to move and searched him. When they discovered drugs on him-drugs that were in his possession because he was consuming them-they allegedly arrested him, along with two other people whom the respondent did not know. [12] For the following reasons, the panel does not believe the respondent's version, even though it has been repeated since the start of the refugee protection claim process. a. First of all, the respondent has not established why the police officers would have falsified the circumstances of his arrest. When asked to comment on this point, the respondent stated that the police did not find anything on his person that could be used to consume the drugs in his possession. According to him, the police officers might have then concluded that he must have had the drugs in his possession in order to distribute them. Although this explanation could indeed explain why a charge of possession with intent to distribute was brought against the respondent-to which he pleaded guilty, according to the new evidence2-it does not provide a plausible explanation as to why the police officers allegedly charged him with the more serious offence of distribution by fabricating the scenario in their report. b. Furthermore, the panel is of the opinion that it is very unlikely that the police officers would have involved a third person-in this case, Mr. XXXX-in their story, which was allegedly fabricated. In fact, by implicating Mr. XXXX, these officers were unnecessarily exposing themselves to a risk, since Mr. XXXX could have served as a witness to contradict their version of the facts. Had the police officers actually wanted to falsify the report in order to make a more serious charge stick against the respondent, it is plausible that they would have limited this story to a transaction between the respondent and the police, without involving Mr. XXXX. c. In fact, the respondent's testimony regarding the circumstances surrounding his arrest, at the very moment of his arrest as much as at that time, was noticeably compromised by the passage of time. The respondent actually invoked it on many occasions to justify his inability to provide details when various questions were put to him. Furthermore, when assessing his testimony regarding these circumstances, one must take into account that the respondent, by his own account, was going through a very stressful time and had fallen into a spiral of consuming "cocaïne, narcotics and lots of other kinds". By his account, he had been doing so at least once a day for the past two or three months. In such a context, his ability to think, perceive, register, etc. clearly was plausibly hindered. In such circumstances, the panel attributes more weight to a story constructed at the time of the events by police officers on duty than it does to the respondent's recollection almost 20 years later. [13] The panel therefore prefers to attach more probative value to the new evidence than to the respondent's version regarding the circumstances of the respondent's arrest. [14] On that point, the respondent's counsel noted after the hearing3 that the undercover agent's statement on page 68 is dated "1989"-although the arrest was made in "1990"-and that the document is not numbered. According to him, it is therefore difficult to connect the document to the respondent. [15] The panel does not agree. [16] An appropriate reading of exhibits M-8 and M-9 (pages 66 to 69), with attention to names, dates and numbers, among other things, makes it plausible that the mention of "1989" on page 68 is a simple error. Furthermore, even if page 68 contains this error and is not clear regarding other information, it has enough information to connect it to the other pages and make it part of a cohesive set of documents that, according to the May 3, 2012, date stamp, is a true copy of the documents found in a file from the "Superior Court of the District of XXXX". The panel therefore attaches much probative value to them. [17] Based on these, the panel is therefore of the opinion that the respondent tried to sell drugs to the police officers in question on XXXX XXXX, 1990, and that, contrary to his previous statements, the drug in question was not only for his own consumption. Therefore, the panel is of the opinion that the respondent misrepresented his actions that led to his arrest and conviction. [18] On that point, the respondent's counsel argued that, even if the crime actually committed was the sale of drugs rather than simple possession for consumption, the first panel had the following information as evidence: the respondent had pleaded guilty to a charge of drug distribution. Consequently, there had been no misrepresentation regarding the charge against him or his conviction, and the first panel decided not to apply the exclusion with full knowledge of the situation. [19] The panel does not agree. [20] It cannot be denied that the respondent declared an arrest and imprisonment in the United States related to cocaine. In his statements, he essentially reported that the police had found pieces of cocaine on him when he was 17 or 18 years old4 and that he had been accused of being a "drug dealer", but suggested that he was, in fact, only a consumer of this drug. [21] In spite of these statements, the Minister decided, given the evidence on record, not to invoke Article 1F(b) of the Convention, the exclusion clause, regarding this drug case. At the time, this evidence was essentially comprised of the respondent's aforementioned statements, a "Ten Print" report indicating that the respondent was charged in the XXXX department with distributing cocaine and was sentenced to two years of probation, and information from the "XXXX County Superior Court" that it had no court record related to the respondent. This decision by the Minister plausibly reflects the fact that, regarding the circumstances of the crime committed, he was attaching greater probative value to the respondent's version of events than to the evidence of the charge against him. On that point, the Minister noted during the hearing on his procedure that the "Ten-Print" was only a summary of a person's criminal record and that they often contained errors. Consequently, it was not completely reliable. [22] Clearly, the first panel relied on this decision from the Minister in deciding not to give serious further consideration to the possibility of applying the exclusion clause. However, it still tried to obtain clarification on the circumstances of the arrest that led to the conviction and, therefore, on the circumstances surrounding the commission of the crime. The respondent's testimony, although brief, made it possible to confirm the picture previously drawn by his statements regarding these circumstances, namely, that the respondent was in fact simply a consumer who had been subjected to a general search by the police, who had targeted youths in a park. [23] Neither the Minister nor the first panel clearly tried to reconcile the two contradictory aspects of the evidence before them: one part that tends to demonstrate that his crime consisted solely of the possession of cocaine for consumption (i.e. the respondent's written and oral testimony), and the other part, that demonstrates that the crime was actually distribution of cocaine, and the conviction (i.e. the charge5). [24] As for the guilty plea, although it suggests that the guilt is related to the charge of distribution, this evidence did not clearly indicate that this was the case. It essentially left room for the possibility that the admission of guilt was regarding another charge that was also related to cocaine. The evidence subsequently obtained by the Minister demonstrated that, in fact, the respondent had pleaded guilty to a lesser charge-possession with the intent to distribute.6 [25] Can we criticize the Minister or the first panel for not delving deeper into this contradiction in the evidence? Should the respondent have been questioned regarding the reasons he pleaded guilty to "distribution", although his statements regarding the circumstances of the crime actually suggested that his crime was simply being in possession for the purposes of consumption, and not distribution, of cocaine? Should the Minister have redirected his search, following the reception of the "No record" from the "XXXX County Superior Court" in order to obtain evidence subsequently submitted by the "Superior Court of the District of XXXX"?7 [26] The panel does not consider it appropriate to answer these questions. Its jurisdiction requires that it rule on whether or not there was misrepresentation. According to the panel, the new evidence submitted by the Minister presents a picture of the circumstances surrounding the commission of the crime that is different from the one described by the respondent. That is so, even if it only confirms the evidence before the first panel regarding the crime for which the respondent allegedly pleaded guilty. [27] It follows that the Minister has established that the respondent at least partially misrepresented the crime that he committed in the United States in 1990. ii) Did the misrepresentations pertain to a material fact relating to a relevant matter? [28] For the following reasons, the panel is of the opinion that the Minister has established that the respondent misrepresented a material fact relating to a relevant matter. [29] Under Article 1F(b) of the Convention Relating to the Status of Refugees,8 people who commit serious non-political crimes outside of the country of refuge cannot claim international protection in the country where they are claiming refugee protection. As a result of the application of this article, a refugee protection claimant is excluded from accessing the refugee determination process in Canada. [30] All information-including the circumstances surrounding the commission of the crime-related to what could reasonably be perceived as or equated to a serious non-political crime is therefore a material fact relating to a relevant matter. Therefore, it must be declared by a refugee protection claimant at the first opportunity. [31] In this case, the respondent misrepresented the circumstances surrounding the crime committed. These circumstances have an influence on how a panel must qualify the seriousness of the crime. This influence is at least as important-if not more important-than that related to the charges and the convictions related to the crime. It therefore follows that the Minister has established that the picture presented by the respondent misrepresented material facts relating to a relevant matter. iii) Was the decision to allow the respondent's claim for refugee protection obtained as a direct or indirect result of these misrepresentations? [32] In order to determine whether, as the Minister argued in his application, the panel that initially dealt with the respondent's claim for refugee protection would have arrived at a different determination had it been aware of these facts, it must be determined whether this first panel would have concluded that the respondent should lose the possibility of being considered a "Convention refugee" or a "person in need of protection" under subsection 97(1) of the Act, because of his behaviour. [33] To this end, the following question must be answered: did the respondent commit a serious non-political crime while he was outside Canada? [34] Considering that the evidence demonstrates that the respondent tried to sell cocaine in the United States and that he pleaded guilty to a charge of possession with intent to distribute, and that there is an absence of evidence indicating that his actions had a political goal, the aforementioned question would be: is the attempt to try and sell cocaine a serious crime? Crime? [35] In his application, the Minister alleged that the behaviour is equivalent in Canada to an offence under subsection 5(1) of the Controlled Drugs and Substances Act. [36] This section states: 5. (1) No person shall traffic in a substance included in Schedule I, II, III or IV or in any substance represented or held out by that person to be such a substance. (2) No person shall, for the purpose of trafficking, possess a substance included in Schedule I, II, III or IV. (3) Every person who contravenes subsection (1) or (2) (a) subject to paragraph (a.1), if the subject matter of the offence is a substance included in Schedule I or II, is guilty of an indictable offence and liable to imprisonment for life, and (i) to a minimum punishment of imprisonment for a term of one year if (A) the person committed the offence for the benefit of, at the direction of or in association with the criminal organization, as defined in subsection 467.1(1) of the Criminal Code, (B) the person used or threatened to use violence in committing the offence, (C) the person carried, used or threatened to use a weapon in committing the offence, or (D) the person was convicted of a designated substance offence, or had served a term of imprisonment for a designated substance offence, within the previous 10 years, or (ii) to a minimum punishment of imprisonment for a term of two years if (A) the person committed the offence in or near a school, on or near school grounds or in or near any other public place usually frequented by persons under the age of 18 years, (B) the person committed the offence in a prison, as defined in section 2 of the Criminal Code, or on its grounds, or (C) the person used the services of a person under the age of 18 years, or involved such a person, in committing the offence; [37] Cocaine is a substance set out in subsection 2(2) of Schedule I of the Controlled Drugs and Substances Act. [38] The term "traffic" is defined as follows under section 2 of the Controlled Drugs and Substances Act: "traffic" means, in respect of a substance included in any of Schedules I to IV, (a) to sell, administer, give, transfer, transport, send or deliver the substance, (b) to sell an authorization to obtain the substance, or (c) to offer to do anything mentioned in paragraph (a) or (b), otherwise than under the authority of the regulations. [39] In light of these sections and the evidence retained by the panel regarding the respondent's behaviour on XXXX XXXX, 1990, the panel is of the opinion that the Minister has established that the acts committed by the respondent in the United States corresponded to indictable offences in Canada at the time they were committed. These are: i) for the purpose of trafficking, possessed a substance included in Schedule I of the Controlled Drugs and Substances Act, and ii) trafficked in that substance. Serious crime? [40] In Jayasekara,9 the Federal Court of Appeal confirmed that the following must be taken into account: i) international standards, and ii) the perspective of the receiving state in determining the seriousness of the crime. In this regard, it pointed out that there is a strong indication that a crime is serious if the offence could have been punishable by a maximum term of imprisonment of at least 10 years if it was committed in Canada. However, the Court ruled that this strong indication of the seriousness of a crime also requires an evaluation of the following factors: iii) the elements of the crime, iv) the mode of prosecution, v) the penalty prescribed, and vi) the facts and the mitigating and aggravating circumstances underlying the conviction. The panel will now analyze how the principles outlined by the Federal Court of Appeal apply to the facts in this case. i) International standards [41] In the United States, the respondent was charged under American legislative provision 33 of the XXXX XXXX XXXX XXXX Code, section 33-541(a)(1), as much for the charge of distribution as for possession with intent to distribute. The Minister did not demonstrate the maximum term of imprisonment or the fines associated with these charges. [42] However, during the hearing, as well as in the submissions and supplementary evidence submitted after the hearing,10 the respondent insisted at length that he was sentenced under the Youth Rehabilitation Act, which permits "setting aside" a conviction under certain conditions. [43] The respondent maintained that the application of this legislation to his case favours a conclusion that the crime for which he pleaded guilty (i.e. possession with intent to distribute) is not serious. [44] According to the evidence on the record,11 the objective of this legislation is to offer young offenders a second chance. Since it is applicable for all crimes, except murder and convictions for a second violent offence using a weapon, it is likely that the respondent would have been eligible to benefit from this legislation for a conviction for cocaine distribution. [45] However, it is not clear to the panel that this in any way reduces the seriousness of the crime for the purposes of its analysis. This legislation reflects the position of the relevant American authorities regarding the proper form of punishment and/or rehabilitation for people who commit crimes during their youth and who could be rehabilitated if granted preferential treatment. [46] However, in the absence of evidence regarding the usual penalties for charges such as those brought against the respondent, the panel is of the opinion that the Youth Rehabilitation Act in the United States is an element that must benefit the respondent in the assessment of the seriousness of his crimes. [47] No other evidence was established regarding how other jurisdictions deal with these types of crimes. [48] However, the panel agrees with Justice Létourneau in Jayasekara, who concluded, after an in-depth analysis of the applicable international standards, that drug trafficking is considered a serious crime across the international spectrum. ii) Canada's point of view [49] According to paragraph 5(3)(a) of the Controlled Drugs and Substances Act, the maximum sentence for these offences is life imprisonment. There is no minimum sentence, unless certain aggravating circumstances are present, in which case the minimum sentence is one or two years. [50] Since the aforementioned jurisprudence recognized that a there is a strong likelihood that a crime is serious if the offence could have been punishable by a maximum term of imprisonment of at least 10 years if it had been committed in Canada, it is clear to the panel that this strong likelihood of seriousness is applicable in this case, given the maximum sentence applicable in Canada. iii) Elements of the crime [51] The respondent's actions in 1990 are not offences against the person and did not involve violence. However, they fall within a phenomenon that entails disastrous human and economic consequences for society. The Supreme Court of Canada's comments12 on drug trafficking are very eloquent in this respect: The harm caused by the illicit traffic in drugs is of the utmost severity. This illicit traffic takes a dreadful toll on the lives of individuals, families and communities. It destabilizes and retards the development of whole nations and regions. Drug trafficking now also threatens peace and security at a national and international level. It affects the sovereignty of some states, the right of self-determination and democratic government, economic, social and political stability and the enjoyment of human rights. [52] For these reasons, the panel is of the opinion that the elements of the crimes support qualifying them as "serious" crimes. iv) Mode of prosecution [53] Paragraph 5(3)(a) of the Controlled Drugs and Substances Act states that the only mode of prosecution for such crimes is an indictment. Summary conviction, an option for prosecuting crimes of lesser seriousness, was rejected by Parliament. It follows that the mode of prosecution for these crimes in Canada is a factor that supports a conclusion that these crimes are "serious" crimes. [54] As for the mode of prosecution in the United States, the Minister alleged that the offences in question were prosecuted as a "felony" (serious offence). In support of his allegation, he referred to the fact that the indictment was brought down by a "Grand Jury" and that it includes the mention "True Bill"-elements that demonstrate, in his opinion, that the act was prosecuted as a "felony" and was considered serious. When asked by the panel to establish this allegation, after the hearing, the Minister submitted an [translation] "excerpt of case summary,"13 which includes the mention "Case Type: Felony". [55] In a written response,14 the respondent objected to the submission of this exhibit and, on one hand, attacked its probative value while, on the other hand, invoked a breach of natural justice in that the respondent was not given the opportunity to respond to the other information contained in the exhibit. The Minister did not reply to the respondent within the prescribed timelines.15 [56] The panel rejects the objection and accepts the submission of document M-11. In fact, the document submitted is in response to a question from the panel. It is therefore relevant. It also introduces new evidence associating the respondent's offence on XXXX XXXX XXXX 1990, to a "Felony" offence. As for the argument regarding natural justice, the panel is of the opinion that if the respondent wanted to respond to the information contained in the document, he could have done so in his written response-or, at the very least, he could have requested the opportunity to do so, which he did not do. [57] This being said, the probative value of the document is limited. In fact, the panel is not familiar with the source of this docket or its reliability. On this point, the panel accepts the respondent's argument that it is not clear whether the mention "Case type: Felony" applies to the charge of "distribution" or to the charge of "possession with intent to distribute", to which the respondent pleaded guilty. [58] Furthermore, neither the document nor the Minister's submissions establish that the "Felony" is a crime that is considered [translation] "more serious" by the American authorities. [59] In light of this evidence, the panel is of the opinion that the mode of prosecution in the United States for the respondent's crimes is not conclusive as to their seriousness. [60] As for the mode of prosecution elsewhere in the world, no example was submitted as evidence. v) The penalty prescribed [61] Given that the penalty prescribed has already been analyzed in paragraphs 41 to 50, the panel refers to the conclusions of that analysis regarding this factor. [62] As for the respondent's punishment, the Court of Appeal in Jayasekara16 and Febles17 ruled that although the length of the sentence must be taken into account, it should not be considered in isolation. In fact, there are a number of reasons why a lenient sentence could be granted-even for a serious crime-which in no way diminishes the seriousness of the crime committed. [63] In this case, the respondent received a suspended sentence and two years of probation. It also appears that the respondent was ordered to perform 100 hours of community work. This sentence is plausibly a result of the respondent's guilty plea and his age when he committed the alleged offences. This is therefore a relevant factor, but the panel is of the opinion that it has a limited role in determining the seriousness of the crime. [64] As for the fact that the respondent served his sentence, in Febles,18 the Court of Appeal clearly ruled that this is a factor extraneous to the facts and circumstances underlying the conviction and is not to be considered in the assessment of the seriousness of the crime. [65] This also applies to the fact that the respondent allegedly benefited from the "setting aside" of his conviction. First, the respondent failed to establish that this was the case, since that process, according to the evidence on the record,19 is automatically invoked only under certain conditions, which the respondent failed to establish; in fact, without this automatic process, the "setting aside" requires that a request be made to the Court, which the respondent failed to establish he made. Second, and more importantly, even if the respondent's conviction had been "set aside", the panel is of the opinion that it is also a factor extraneous to the facts and circumstances underlying the conviction and that it should therefore not be considered when assessing the seriousness of the crime. vi) The aggravating facts and circumstances underlying the conviction [66] The Minister did not raise any aggravating factors in this case. [67] The panel also notes that the aggravating factors identified under paragraph 5(3)(a) of the Controlled Drugs and Substances Act-which would have justified a minimum sentence in Canada-are not present in this case. This applies in cases where, for example: a. the offence was committed for the benefit of, at the direction of or in association with a criminal organization; b. the accused used or threatened to use violence in committing the offence; c. the accused carried, used or threatened to use a weapon in committing the offence; d. the person was convicted of a designated substance offence, or had served a term of imprisonment for a designated substance offence, within the previous 10 years; e. the offence was committed in or near a school, on or near school grounds or in or near any other public place usually frequented by persons under the age of 18 years; and f. the person used the services of a person under the age of 18 years, or involved such a person, in committing the offence. vi) The mitigating facts and circumstances underlying the conviction [68] The respondent's counsel raised the following points as mitigating facts and circumstances: a. the respondent's age when the crime was committed; b. the fact that this was an isolated incident; c. the absence of recidivism; d. the fact that the respondent was sentenced under the Youth Rehabilitation Act; e. the fact that the respondent was granted an absolute discharge; and f. the fact that the respondent pleaded guilty. [69] As for points "a," "d," "e" and "f," the panel is of the opinion that it has already considered these factors in the previous paragraphs. [70] As for point "b," the fact that serious criminal conduct is habitual is a factor that, as the Federal Court of Appeal in Jayasekara20 pointed out, was taken under consideration in the UNHCR guidelines to determine the seriousness of the crime. However, this factor is not explicitly listed among those highlighted by the Federal Court of Appeal. In this case, the respondent categorically denies being involved in selling drugs before or after his arrest in XXXX 1990. Although the panel has reasons to doubt the respondent, particularly because of its previous conclusions regarding the circumstances surrounding the arrest in question and the fact that the respondent fell into a dangerous spiral and consumed drugs on a regular basis for two or three months, the Minister did not allege, much less establish, that the crime committed by the respondent was in line with his habitual behaviour. The panel therefore retains this as the mitigating factor, although it is not determinative. [71] As for point "c," the absence of any subsequent offence-even if accepted as a fact-is a factor that is clearly extraneous to the facts and circumstances underlying the conviction, and the panel is not bound to take it under consideration. [72] In weighing all the aggravating and mitigating facts and circumstances, and in the absence of submissions on the quantity of drugs involved, the panel is of the opinion that they mitigate in favour of the respondent, that is to say, that the alleged crime not be qualified as "serious." vii) Conclusion regarding the seriousness of the crime [73] In light of the aforementioned, the panel is nevertheless of the opinion that all the factors listed by the Federal Court of Appeal in Jayasekara lead to the conclusion that the crime in this case is "serious." [74] The panel understands that it could appear unjust for the respondent that crimes that he committed a number of years ago would come back to haunt him just as he seems to be taking advantage of the second chance that life has offered him and has chosen the right path. However, the panel must be guided by the legislation and state of the current case law, which states that if there are serious reasons for considering that someone has committed a serious non-political crime prior to coming to Canada, as is the case here, that person must be excluded under the Convention, regardless of the fact that time has passed. Conclusion regarding question "iii": whether the "decision to allow the respondent's refugee protection claim is the direct or indirect result of these misrepresentations" [75] Given the preceding conclusion regarding the seriousness of the crime, the panel is of the opinion that the Minister has established that, had the panel who initially dealt with the respondent's claim for refugee protection been aware of all these factors, its decision would have been different. In fact, had the respondent accurately described the circumstances surrounding his arrest, and not presented a picture according to which the drugs found on him were for his personal consumption and that his arrest had been somewhat random as a result of a police search of [translation] "all the youth in the park," the Minister would have invoked an exclusion under Article 1F(b), and the first panel would have plausibly determined that he was excluded. It follows that the Minister established that the decision to allow the respondent's claim for refugee protection was the result of the aforementioned direct or indirect misrepresentations. [76] Having determined that the first panel would have concluded that the respondent was excluded, it is not necessary, according to the applicable case law,21 to proceed to an analysis under subsection 109(2) of the Act. CONCLUSION [77] For the aforementioned reasons, the panel allows the Minister's application to vacate the respondent's refugee status. [78] It therefore vacates the refugee status granted to the respondent, XXXX XXXX XXXX. Patrick Lemieux Patrick Lemieux January 17, 2014 Date IRB translation Original language: French 1 Document 1: Application to vacate refugee status, List of exhibits, Exhibit M-8: Copy of documents from the Superior Court of the District ofXXXXX, case No.XXXXXX, page 68. 2 Document 1: Application to vacate refugee status, List of exhibits, Exhibit M-9: Copy of decision from the Superior Court of the District of XXXXXX, case No. XXXXXX. 3 Letter dated December 11, 2013, submitted by the respondent's counsel. 4 See, among others, Document 1: Application to vacate refugee status, List of exhibits, Exhibit M-1: Copy of Citizenship and Immigration Canada (CIC)-Montréal officer's notes, page 2; Exhibit M-3: Copy of Personal Information Form (PIF), page 20; Exhibit M-4: Copy of amendments made to PIF, page 25. 5 Document 1: Application to vacate refugee status, List of exhibits, Exhibit M-5: Copy of Minister's notice of intervention, page 34; Exhibit M-4: Copy of amendments made to PIF, page 25. 6 Document 1: Application to vacate refugee status, List of exhibits, Exhibit M-9: Copy of decision from the Superior Court of the District ofXXXXX, case No. XXXXXXX. 7 Document 1: Application to vacate refugee status, List of exhibits, Exhibit M-8: Copy of documents from the Superior Court of the District of XXXXX, case No.XXXXXX; Idem. 8 For the full title of this Convention, see subsection 2(1) of the Act. 9 Jayasekara, Ruwan Chandima v. M.C.I. (F.C.A., No. A-140-08), Létourneau, Sharlow, Pelletier, December 17, 2008, 2008 FCA 404. 10 Letters dated December 11 and 16, 2013, containing exhibits D-6 and D-7, and a document defining the Alford plea from Wikipedia (submitted erroneously under paragraph 37 of the former Refugee Protection Division Rules). 11 Document 3: List of exhibits, Exhibit D-5: Documents from the Internet regarding the Youth Rehabilitation Act in XXX. 12 Pushpanathan v. Canada, (1998) 1 S.C.R. 982, preliminary notes. 13 Supplementary submission dated December 11, 2013, and Exhibit M-11. 14 Letter dated December 16, 2013. 15 Section 43 and subsection 52(4) of the Refugee Protection Division Rules. 16 Jayasekara, Ruwan Chandima v. M.C.I. (F.C.A., No. A-140-08), Létourneau, Sharlow, Pelletier, December 17, 2008, 2008 FCA 404. 17 Hernandez Febles, Luis Alberto v. M.C.I. (F.C.A., No. A-379-11), Evans, Sharlow, Stratas, December 7, 2012; 2012 FCA 324. 18 Hernandez Febles, Luis Alberto v. M.C.I. (F.C.A., No. A-379-11), Evans, Sharlow, Stratas, December 7, 2012; 2012 FCA 324. 19 Document 3: Exhibit D-5: Documents from the Internet regarding the Youth Rehabilitation Act in XXX. 20 Jayasekara, Ruwan Chandima v. M.C.I. (F.C.A. No. A-140-08), Létourneau, Sharlow, Pelletier, December 17, 2008, 2008 FCA 404, pragraph 38. 21 Canada v. Wahab (2006 FC 1554), No. IMM-1265-06, December 22, 2006; Canada v. Mahdi, (1995) 191 N.R. 170; Aleman v. Canada, 2002 FCT 710. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RPD File # / No. dossier SPR : MB3-02690 3 RPD File No. / No de dossier de la SPR : MB3-02690 1