Moscicki v. Canada (Citizenship and Immigration), 2015 FC 740 : Serious Criminality Finding Upheld After Foreign Conviction Was Found Equivalent to a Canadian Offence

The Federal Court reviewed a finding that the applicant was inadmissible to Canada for serious criminality because of a U.S. conviction for attempted residential burglary.

The applicant argued that the U.S. offence was not properly compared to Canadian criminal law and also claimed that an old permanent residence application from 1989 had never been finalized.

The Court rejected both arguments.

Key Principle

When assessing criminal inadmissibility based on a foreign conviction, immigration authorities must determine whether the foreign offence is equivalent to an offence in Canada.

The wording does not have to be identical. What matters is whether the essential elements of the offences are sufficiently similar.

The assessment is not a new criminal trial and does not require immigration authorities to determine whether the person would definitely be convicted in Canada.

Background

The applicant was a Polish citizen who arrived in Canada as a teenager in 1989.

In 1992, he was convicted in Illinois of attempted residential burglary and sentenced to imprisonment.

He later returned to Canada and was eventually referred to an admissibility hearing.

The Immigration Division compared the Illinois offence with the Canadian offences of attempt and break and enter and found them equivalent.

It therefore found the applicant inadmissible for serious criminality.

Court Findings

The Federal Court found that the Immigration Division had properly compared the essential elements of the U.S. and Canadian offences.

The Court emphasized that equivalency does not require identical statutory wording. The relevant question is whether the offences contain similar essential elements.

The Immigration Division was also not required to retry the original U.S. criminal case or determine whether the applicant would actually have been convicted in Canada.

The Court therefore found the equivalency analysis reasonable.

The applicant also argued that he should be considered rehabilitated because many years had passed since the conviction.

The Court noted that no rehabilitation application had been filed and held that the Immigration Division could not be faulted for failing to treat him as rehabilitated.

Outcome

The Federal Court dismissed the application for judicial review and upheld the serious criminality finding.

The Court also refused to order immigration authorities to grant or complete the applicant’s old permanent residence application because the evidence did not establish that he had ever completed all requirements for permanent residence.

The case shows that foreign convictions can create Canadian immigration consequences where the essential elements of the foreign offence correspond to a Canadian offence.

Case Citation:

Moscicki v. Canada (Citizenship and Immigration), 2015 FC 740 CanLII