KITEAU NOEL Applicant v. THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS, 2018 FC 609

Date: 20180611 Docket: IMM-5061-17 Citation: 2018 FC 609 [ENGLISH TRANSLATION] Montréal, Quebec, June 11, 2018 Present: The Honourable Mr. Justice Shore BETWEEN:KITEAU NOELApplicantandTHE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESSRespondent JUDGMENT AND REASONS (Judgment delivered from the bench on June 11, 2018) [1] An application for judicial review was filed against a decision, dated November 14, 2017, rendered by the Immigration Division(ID) of the Immigration and Refugee Board. The ID issued a deportation order against the applicant, who was found to be a persondescribed in paragraph 36(1)(

b) of the Immigration and Refugee Protection Act, SC 2001, c. 27 (IRPA). "Serious criminality " "Grande criminalité ""36

(1) A permanent resident or a foreignnational is inadmissible on grounds of seriouscriminality for " "36""

(1) Emportent interdiction de territoirepour grande criminalité les faits suivants : " "… " "[…] ""(

b) having been convicted of an offenceoutside Canada that, if committed in Canada,would constitute an offence under

an Act ofParliament punishable by a maximum term ofimprisonment of at least 10 years; or " "

b) être déclaré coupable, à l’extérieur duCanada, d’une infraction qui, commise auCanada, constituerait une infraction à une loifédérale punissable d’un emprisonnementmaximal d’au moins dix ans; " [2] The applicant is not a permanent resident or a citizen of Canada. [3] Following an investigation, the applicant’s deportation was ordered on November 14, 2017, under paragraph 36(1)(b), on grounds ofserious criminality according to the ID, since Canadian law is considered equivalent to American law. [4] The applicant’s record shows that he was convicted of an offence described as “child abuse” in the American state of Florida underarticle 827.03(1) of the Florida Statutes. [5] These steps were taken after a report was prepared under subsection 44(1) of the IRPA (Report 44) stating that the applicant wasinadmissible after having been convicted outside Canada. [6] According to Report 44, the equivalent offence is set out in subsection 267(

b) of the Criminal Code, RSC (1985), c. C-46, which isan indictable offence that bears a sentence of 10 years. [7] Was it reasonable for the ID to base its decision on an unspecified equivalence in Report 44? [8] The reasonableness standard of review is based on the determination of equivalence between a foreign statute and a federal statute(Svecz v. Canada (Public Safety and Emergency Preparedness), 2016 FC 3; Abid v.

Canada (Citizenship and Immigration), 2011 FC164). [9] The applicant tried to demonstrate that the Board overstepped its jurisdiction by basing its decision on subsection 44(1) of the IRPA. [10] The applicant argues that the ID could not base its decision on an equivalence that was not expressly specified in Report 44. Thatargument was dismissed by this Court (see Bolanos Blanco v. Canada (Citizenship and Immigration), 2010 FC 280; see also, with regardto the principles of the Supreme Court in the reasons in Mobil Oil Canada Ltd. v.

Canada-Newfoundland Offshore Petroleum Board, (SCC), [1994] 1 SCR 202, demonstrating when the final outcome would not change the conclusion). [11] Had the offence been committed in Canada, it would be considered assault with a weapon under subsection 267(

a) of the CriminalCode, liable to imprisonment for a term not exceeding 10 years. [12] The applicant was reasonably found to be inadmissible in Canada by the ID under paragraph 36(1)(

b) of the IRPA. JUDGMENT in file IMM-5061-17

THIS COURT’S JUDGMENT is that the application for judicial review is dismissed. There is no question of importance to be certified. “Michel M. J. Shore” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-5061-17 STYLE OF CAUSE: KITEAU NOEL v. THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: Montréal, Quebec DATE OF HEARING: June 11, 2018 JUDGMENT AND REASONS: SHORE J. DATED: June 11, 2018 APPEARANCES : Vincent Desbiens For the applicant Margarita Tzavelakos For the respondent SOLICITORS OF RECORD : Montréal Legal Aid Montréal, Quebec For the applicant Attorney General of Canada Montréal, Quebec For the respondent