Criminal equivalency under immigration law is the art of judging a criminal law conviction rendered beyond our borders by a legal system that is foreign to ours. It is art because it requires a nuanced assessment of that foreign legal system and the nature of the crime convicted or committed, which can be two different things. It is often misunderstood, confused and complex — and yes, it is the job of the immigration division of the Immigration and Refugee Board of Canada — those folks that also keep people detained for no better reason than the whims of the Canada Border Services Agency — to render such decisions. Surprisingly, sometimes, they get it right. In the recent decision of the Minister of Public Safety and Emergency Preparedness v. Melhi, immigration division member M. Heyes got it very right.
A foreign national — as in a non-citizen or permanent resident of Canada — is inadmissible to Canada if they have been convicted of a crime outside Canada that, if committed in Canada, would constitute an offence punishable by 10 years imprisonment or longer.
So, if a person had acted with the same mens rea and actus reus in Canada as they had outside, would that person be charged with a crime or are the elements of the offence in the foreign jurisdiction essentially the same as those of a similar offence in Canada? The answer sounds simple enough: Look at the foreign law, compare it to Canadian law and decide if they are fundamentally the same. Easy answers lie in the straightforward crimes such as murder, sexual assault, robbery and other crimes of physical violence. However, venture into so called “white-collar” crime, and the greys emerge.
In Melhi, the minister got it very wrong, and the immigration division spanked him for it.
The person concerned in the Melhi case was convicted in the United States of crimes under a law called the Hobbs Act. It was alleged that he had purchased alcohol from an off-duty police officer for re-sale, for which he paid no taxes and that he had made donations to a political campaign of a politician in exchange for an agreement to not illegally close his liquor store down.
The politician was corrupt and was extorting money from store owners by threatening to not issue them operating licences.
Melhi was convicted of these “crimes” and sentenced to 46 months imprisonment and considerable fines. What had he done? He had paid money to a police officer for alcohol he believed had been confiscated and then he sold it to the public. He had paid money to a politician for his election campaign, in order to avoid being denied a licence, to which he was entitled by law. None of this sounds very criminal, but in the U.S., it seems it is. In fact, a U.S. attorney who gave evidence before the immigration division described the law as being “insidious” and that a person can be convicted for being a victim of extortion. The Immigration division had this to say about this testimony:
“Mr. Leyden testified that the Hobbs Act was originally enacted as a labour statute. He explained that the 1951 section of the Act addresses public corruption in the realm of its effect on interstate commerce. Interstate commerce he stated, means the flow of goods or information across state lines. Mr. Leyden testified about the peculiar nature of section 151 of the Hobbs Act which he described as being "uniquely insidious." Under the provisions of the Hobbs Act, one can be both a victim, by being extorted by a public official, and in so doing, also commits a criminal act and is liable to prosecution. Mr. Leyden also testified that the prosecution does not need to show the state of mind of the defendant, but rather just show that he facilitated a transaction.”
The minister tried to equate this U.S. crime, a crime in which no mens rea is required, no morally wrong act committed and in which Melhi, a victim of extortion, was convicted for being a victim to the crime of bribery in Canada, which requires a guilty mind, mens rea, and an action that is corrupt in nature. The elements of bribery are not present in the Hobbs law.
The search for equivalency between laws is not a search for an identical match. Essential elements of the offences must be present, however, and here they were not. The U.S. offence was much broader than any Canadian crime and was used to convict Melhi of a crime, which is not a crime in law or morality in Canada.
It’s another reason to doubt that justice is being dispensed south of our border.