TC2-29070

RAD File / Dossier de la SAR : TC2-29070 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX Personne en cause Date of decision February 17, 2023 Date de la décision Panel Joseph Wyger Tribunal Counsel for the person who is the subject of the appeal Jeffrey L Goldman Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister S. Escoffery Conseil du ministre REASONS FOR DECISION OVERVIEW [1] I dismiss this appeal. The Appellant XXXX XXXX XXXX XXXX (Mr. V) is a citizen of Nicaragua. 1. Mr. V alleges fear of persecution in Nicaragua for his same sex profile; while in the USA he was accused of the theft of antique garment buttons from his employer. 2. The Refugee Protection Division (RPD) found Mr. V excluded from refugee protection because it found serious reasons for considering that he committed the serious crime of theft over $5000; Mr. V maintains that he was not aware the goods he sold on eBay were stolen and blames another employee named XXXX. 3. The determinative issue for the Refugee Appeal Division (RAD) is whether the presumption of seriousness of theft over $5000 has been rebutted by Mr. V. 4. The RAD decides that Mr. V is excluded from refugee protection because he did not rebut the presumption that the crime of theft over $5000 which he committed is a serious non-political crime. DECISION [2] I dismiss the appeal. The RPD was correct in finding that the Appellant is neither a Convention refugee nor a person in need of protection. BACKGROUND [3] Mr. V's allegations can be summarized as follows: Mr. V grew up being humiliated, harassed and bullied because of his effeminate nature. He realized that he was attracted to other boys. He was sexually abused by his aunt's husband as a child. After XXXX, Mr. V entered a seminary where he was sexually abused by a local priest. Mr. V's mother and sister did not approve of his same-sex orientation. [4] In 2012, Mr. V married a woman who he paid to sponsor him for permanent residency in the USA and he went to work for XXXX XXXX in Pennsylvania. A co-worker named XXXX asked him to help sell some old garment buttons, so Mr. V opened an eBay account and put them up for auction. In XXXX 2014, XXXX advised Mr. V that the buttons were stolen goods and the police were looking for Mr. V. XXXX threatened to harm him and his mother if he told the police that he got the buttons from XXXX, so he gave any unsold buttons back to XXXX and fled the USA for Nicaragua where he faced persecution due to his sexual orientation. [5] Mr. V travelled to Canada in XXXX 2015, found a job in XXXX and started to engage in same-sex relationships here. Mr. V's USA green card expired in XXXX 2015 so he could not go back to the USA. He filed a refugee claim in December 2020. RPD FINDINGS [6] The RPD made the following findings to support the panel's conclusion that there are serious reasons for considering that Mr. V committed a serious non-political crime while outside Canada and is therefore excluded from refugee protection: 1. The crime committed by Mr. V was theft over $5000 pursuant to S 322(1) and 334(a)(i) of the Canadian Criminal Code (CCC) for which the sentence can be up to ten years imprisonment. 2. A conviction of the crime is not required in order to make an exclusion finding. 3. Mr. V's story about XXXX involvement in securing and selling the buttons is not credible. 4. Mr. V. displayed wilful blindness which is included in the mens rea element for theft. 5. His position of trust, the irreplaceable nature of the stolen property and Mr. V's immediate flight from the USA are aggravating circumstances, which outweigh the mitigating circumstances of an absence of violence, alcohol and drugs. 6. Following a consideration of the Jayasekara factors, the presumption of seriousness of Mr. V's crime has not been rebutted. 7. Since there was no evidence as to what an appropriate sentence would be, sentencing range is a neutral factor in the consideration of seriousness. APPELLANT'S POSITION [7] The Appellant's Memorandum (AM) argues that the RPD breached natural justice by not considering Mr. V's submissions on intent, which is a required element of the crime. It submits that the panel made errors of fact with respect to the aggravating factors and asserts that the lack of prosecution in the USA is a mitigating factor. The AM faults the RPD for failing to consider Mr. V's explanations for XXXX involvement in the button selling scheme. MINISTER'S POSITION [8] The Minister intervened at the RAD to argue that the RPD correctly evaluated the elements of the crime, including an acknowledgement of Mr. V's intent, but was not required to make a determination of his guilt. The Minister contends that Mr. V being left alone without supervision at his employer's residence directly contradicts his claim that he was not a trusted employee. ANALYSIS [9] My role is to look at all the evidence and decide if the RPD made the correct decision.1 My independent assessment of the evidence provides serious reasons for considering that Mr. V committed the offence of theft over $5000 which is presumed serious due to the potential ten-year sentence. I determine that the presumption of seriousness of the crime is not rebutted after an evaluation of the Jayasekara factors and there is insufficient evidence to find where on the range of sentences that Mr. V's offence might fall. I conclude that Mr. V is excluded from refugee protection pursuant to Article 1F(b) of the United Nations Convention Relating to the Status of Refugees (Convention).2 EXCLUSION [10] Section 98 of the Immigration Refugee Protection Act (IRPA)3 provides: A person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention refugee or a person in need of protection. [11] Subsection 1F(b) of Article 1 of the Convention provides: The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee [12] While crimes attracting a maximum sentence of ten years or more will generally be sufficiently serious to warrant exclusion, the guideline should not be applied in a mechanistic, decontextualized or unjust manner. I must consider whether the presumption of seriousness is rebutted through an evaluation of several factors, including the facts and elements of the crime, the mode of prosecution, the penalty prescribed and the mitigating and aggravating circumstances underlying the conviction.4 [13] The Supreme Court of Canada (SCC) provided additional guidance in holding that where a CCC provision has a large sentencing range with the upper end being ten years or more, a claimant whose crime would fall at the less serious end of the range in Canada should not be presumptively excluded.5 The Court added sentencing range as an additional consideration when determining whether the crime committed is serious. [14] In assessing the seriousness of Mr. V's crimes, I will consider both an assessment of the relevant Jayasekara factors and an assessment of where on the sentencing range Mr. V's conduct would likely fall if committed in Canada. The dollar value element of the crime is established to be over $5,000 [15] The RPD determined that the crime committed by Mr. V was theft over $5000 pursuant to S 322(1) and 334(a)(i) of the CCC for which the sentence can be up to ten years imprisonment. The RPD considered counsel's submissions not to amalgamate the sale purchases so that the value element should be based on individual sale values for the buttons which never amounted to more than $800 per week with the largest single sale at $1800. [16] The panel preferred the numbers in the criminal complaint showing eBay transactions that totalled $24,300 and a police report indicating the owner's estimate of value in excess of $100,000. The RPD found there was no evidence to support the proposition that there was more than one theft, only that there was more than one date of sale. [17] Counsel for Mr. V did not contest the value element in the AM or in the subsequent Reply Memorandum (RM). I note that Mr. V testified that the money received was a "...bit over $5,000...".6 I agree with the RPD that for the purposes of criminal law, there was one theft here and the relevant figure is the aggregate value which can be manifested by the total money received for the stolen property. While the exact value of these items may be difficult to peg, all the evidence suggests that it exceeds $5000 in the aggregate. I determine that the value element of the crime of theft over $5000 has been satisfied. The RPD was wrong to say that the panel did not have to identify each element of the offence [18] The RPD described how Mr. V admitted to selling the buttons on eBay but said he did not know they were stolen by XXXX who had approached him to sell them in return for a 40% commission. The panel addressed counsel's submission that Mr. V did not have the requisite intent to commit the offence because he did not know the items were stolen. The RPD said that intent was not required here, citing case-law that each element of the offence does not need to be identified.7 Even so, the RPD went on to note that mens rea for theft includes wilful blindness which imputes knowledge to an accused whose suspicion should be aroused to make further inquiries. [19] The RPD found much of Mr. V's testimony about his arrangement with XXXX to be not credible and that it was more likely than not that Mr. V was wilfully blind to the stolen nature of the items, and he failed to exercise due diligence. Mr. V says he did not ask where the buttons came from, gave money directly to XXXX each week and he never saw any of the commission over the six months he was selling them. The panel did not believe him and after a review of the police documents provided by the Minister, determined that there were serious reasons for considering that Mr. V committed the offence of theft over $5000. [20] The AM argues that the RPD relied on an older case to find that the panel did not have to identify each element of the offence, while the more recent case of Jayasekara requires an evaluation of those elements in determining the seriousness of a crime. [21] The Minister counters that there is a distinction between identifying each element and evaluating each element as required by Jayasekara. I disagree because the RM is right that an element needs to be identified first in order for it to be evaluated. I agree with the RM that the RPD was wrong about not needing to identify the elements of a crime because each element must be satisfied for the crime to exist. I will independently identify and evaluate the elements of the crime of theft over $5000. I have already determined that the value element has been satisfied to the exclusion standard of serious reasons for considering. Mr. V's explanations are not persuasive in light of the police evidence which provided serious reasons for considering that he committed all the elements of the crime [22] The RPD relied on the Minister's evidence to find there were sufficient facts on which it was reasonable to find that there are serious reasons for considering that Mr. V had committed the offence of theft over $5000. [23] The AM contends that the panel's failure to consider Mr. V's submissions on his lack of intent to commit theft was a denial of natural justice as well as reviewable error. According to those submissions, after Mr. V learned that the buttons were stolen, he returned the remaining buttons to XXXX in order to protect himself and his mother from XXXX, and he was not thinking of depriving the true owner of her property. [24] The evidence for Mr. V's crime consists of: a Pennsylvania Police Criminal Complaint which includes an Affidavit of Probable Cause; a XXXX Police Incident Report and Wanted Person Circular; and a Pennsylvania Arrest Warrant. There are 35 pages of information with various notations alleging: knowledge that property is proceeds of an illegal act; theft by unlawful taking or disposition; unlawfully took or exercised unlawful control over movable property with intent to deprive the owner thereof; intentionally received, retained or disposed of movable property belonging to another, with no intent to restore it to the owner, knowing or believing that it had probably been stolen. It is clear that the police in Pennsylvania think they had probable cause to believe that Mr. V had the requisite intent or knowledge that he was dealing with stolen property. [25] There is a fulsome description from the officer who investigated and interviewed the victim XXXX XXXX that: Mr. V was a trusted employee for 15 years who enjoyed full access to the household; many stolen items were listed by an eBay user named "XXXX"; the value of transactions listed totalled $24,300; the eBay active listings were soon pulled and prior listings made not-viewable; Mr. V's Facebook settings were changed to private; Mr. V's cell phone number was cancelled; Mr. V failed to report for work the next day; a return address post office box number on a package containing stolen items was listed to Mr. V. [26] There are some other interesting notations in the documents; XXXX had filed a previous theft report regarding missing cash and personal items, unsure of who the culprit was; Mr. V's cousin XXXX was aware of the current situation because her husband XXXX also works for XXXX and he has previously accused Mr. V of stealing from her; Mr. V's brother XXXX revealed that his father had previously accused Mr. V of wrongdoing involving a credit card issued to his father; a a man in Toronto is also looking for Mr. V because he stole from his company while working as a foreman there. [27] The Minister submitted to the RPD that Mr. V attempted to cover up his activity when he became aware police were involved. The police evidence raises some questions regarding covering up the crime or a guilty mind such as why would Mr. V need to use an alias if he was innocently selling items on eBay for a co-worker? After finding out the buttons were stolen, why try to immediately hide all the evidence of the sales, change Facebook settings, cancel a cell number, quit work and run away to Nicaragua, instead of co-operating with police to apprehend the real culprit, XXXX? [28] Neither the AM or the RM address these questions beyond the submissions that the RPD failed to consider Mr. V's explanations of threats to Mr. V's life and his mother's life by XXXX. I have conducted an independent assessment of all the evidence, including reading the transcript and listening to large portions of the audio recordings of the RPD hearing. I have considered Mr. V's explanations and surmise that they might provide some basis for a defence were Mr. V to stand trial where the standard of proof is beyond a reasonable doubt. That is not the standard here and I determine that Mr. V's testimony and explanations are simply not enough to discount the voluminous police evidence that provide serious reasons for considering that he did commit the crime. RPD based wilful blindness finding on evidence and not conjecture [29] Despite the misstep of saying it did not need to consider intent, the RPD proceeded to acknowledge that the required mens rea for theft includes intent by finding that Mr. V was wilfully blind to the prospect that the buttons were stolen property. [30] The Minister disagrees with the AM proposition that the issue is guilt under the criminal law and correctly cites that the RPD does not determine guilt or innocence. I disagree with the RM's argument that the RPD conducted an improper evaluation of guilt because it based its conclusion on conjecture. The RM complains that the RPD imposed its subjective views in rendering this finding rather than basing it on the facts. I disagree because the RPD was not undertaking an evaluation of Mr. V's guilt or innocence but considering whether the elements of the crime were satisfied to the standard of serious reasons for considering. I find the panel's subjective view in rendering that finding was based on the facts presented and I agree with it. [31] In my view, the RPD evaluated the element of intent sufficiently, not so as to declare Mr. V's guilt or innocence, but to meet the much lesser standard that there were serious reasons for considering that he committed the offence. I find that the panel evaluated the element of intent or mens rea in its finding that Mr. V was wilfully blind and that finding was based on an evaluation of the evidence and not conjecture. [32] I have conducted an independent assessment of the evidence and submissions on this issue, and I agree with the RPD's evaluation of the elements of the crime of theft over $5000. I determine that the panel correctly concluded that there are serious reasons for considering that Mr. V committed the offence. I further make the uncontested finding that this offence is presumed to be a serious crime due to the potential ten-year sentence. Lack of prosecution is not a factor to consider in determining seriousness [33] The Federal Court set out factors to consider in the determination of whether a presumption of seriousness can be rebutted: I believe 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: see S v. Refugee Status Appeals Authority, (N.Z. C.A.), supra; S and Others v. Secretary of State for the Home Department, [2006] EWCA Civ 1157 (Royal Courts of Justice, England); Miguel-Miguel v. Gonzales, no. 05-15900, (U.S. Ct of Appeal, 9th circuit), August 29, 2007, at pages 10856 and 10858. 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.8 [34] The RPD stated that the Minister does not have to prove that Mr. V was charged with or convicted of the acts attributed to him in order for the exclusion clause to apply. The panel found that Mr. V was not prosecuted in the USA because the police were unable to find him since he fled to Nicaragua upon hearing that they were looking for him. The panel found that the fact Mr. V was not prosecuted is not a mitigating circumstance, but his flight from the USA is an aggravating circumstance. [35] The AM contends that the RPD erred by speculating that Mr. V was not prosecuted because of his departure from the USA, and this is inconsistent with the evidence which indicates that an individual subject to criminal charges will be tried in absentia in Pennsylvania. The RM also notes that the USA government is aware that Mr. V is here and has made no efforts to have him extradited. Counsel concludes that the offence in question is not a serious crime, because if it were considered serious by USA authorities, they would have requested Canada to detain and extradite him. [36] I think that the AM mischaracterizes the law in Pennsylvania as mandatory. The provision is actually permissive in that a defendant may by tried in absentia. In my view, neither the fact that Mr. V has not been tried in absentia or that he has not been extradited has any relevance to the exclusion analysis. The law is clear that exclusion is not limited to fugitives and also does not depend on whether there has been a charge or conviction. Mode of prosecution is only a factor when there has been a prosecution. The absence of a prosecution is not a factor for consideration in rebutting the presumption of seriousness. Mitigating and aggravating factors do not rebut the presumption of seriousness [37] The RPD determined that Mr. V's position of trust, the irreplaceable nature of the stolen property and his immediate flight from the USA are aggravating circumstances, which outweigh the mitigating circumstances of an absence of violence, alcohol and drugs. [38] The AM argues that the RPD made an error of fact about the number of years that Mr. V worked for XXXX and the panel relied on that to find that his position of trust was an aggravating factor. The AM submits that Mr. V was a XXXX and XXXX and was in no position of trust so it could not be an aggravating factor. I do not think that the number of years that Mr. V worked for XXXX is all that important. The evidence is that during his tenure working for her, he had access to the house unaccompanied, which is the key determinant that he was trusted enough not to steal from her. I agree with the Minister that the fact that he was left alone in the house without supervision is an indicator he was a trusted employee. In my view, this breach of trust does constitute an aggravating factor. [39] Neither the AM or RM suggest any mitigating circumstances and my independent assessment is that there is insufficient evidence of anything mitigating that might assist to rebut the presumption of seriousness. After considering the Jayasekara factors, I determine that the presumption of seriousness has not been rebutted. RPD was correct that there is insufficient evidence to project a sentencing range [40] The RPD correctly considered the Supreme Court's guidance in Febles to try to determine whether Mr. V's hypothetical sentence in Canada would have fallen in the higher or lower end of the sentencing range. In my view, the panel was right to find it a neutral factor in the absence of any evidence on what the appropriate sentence might have been. Neither the AM nor the Minister provided any evidence or submissions on that issue, so I am also unable to estimate where in the range the sentence might have resided. CONCLUSION [41] I conclude that there are serious reasons for considering that Mr. V committed the offence of theft over $5000 which is presumed serious due to the potential ten-year sentence. I determine that the presumption of seriousness of the crime is not rebutted following an evaluation of the Jayasekara factors. I conclude that there are serious reasons for considering that Mr. V committed a serious non-political crime outside Canada and is therefore excluded from refugee protection pursuant to Article 1F(b) of the Convention. [42] I dismiss the appeal and confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. (signed) Joseph Wyger Joseph Wyger February 17, 2023 Date 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 2 Convention relating to the Status of Refugees, Geneva, 28 July 1951, United Nations, Treaty Series, vol. 189, at p. 137 and Protocol relating to the Status of Refugees, New York, 31 January 1967, United Nations, Treaty Series, vol. 606, at p. 267; accession of Canada to both on 4 June 1969, Article 1F(b). 3 Immigration and Refugee Protection Act, S.C. 2001, c. 27, section 98. 4 Jayasekara v. Canada (Minister of Citizenship and Immigration), 2008 FCA 404 (CanLII), [2009] 4 FCR 164. [Jayasekara] 5 Febles v. Canada (Citizenship and Immigration), 2014 SCC 68, (CanLII), [2014] 3 SCR 431. [Febles] 6 Transcript of RPD hearing (May 26, 2022), page 34. 7 Sing v. Canada (Minister of Citizenship and Immigration), 2005 FCA 125. 8 Jayasekara v. Canada (Minister of Citizenship and Immigration), 2008 FCA 404 (CanLII), [2009] 4 FCR 164, para 44. --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : TC2-29070 RAD.25.02 (August 20, 2021) Disponible en français 2 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (August 20, 2021) Disponible en français