When Canadian
immigration officers assess a criminal incident from another country, they
cannot just look at the original allegation and stop there. They have to look
at the full record, consider the legal elements of the Canadian offence, and
deal fairly with evidence that may point the other way.
That is exactly
what the Federal Court addressed in Garcia v Canada (Citizenship and
Immigration), 2021 FC 141.
This case is
important because it shows that when a foreign charge has been withdrawn,
and there is evidence of self-defence and a complainant later says the
accused should be exonerated, an officer still has to do a careful and fair
analysis before finding someone criminally inadmissible to Canada.
What
happened in Garcia?
Lorebeth Garcia
applied for permanent residence in Canada as a member of the live-in caregiver
class. Her husband, Joresce Ballesteros, was included as a family member on the
application.
The issue
started with a fight that happened in the Philippines in 2006 outside a karaoke
bar. Mr. Ballesteros and four others were charged there with frustrated
homicide after another man, Joenard Humiwat, suffered serious injuries.
But the story
did not end there.
Mr. Ballesteros
and the other accused said they had been acting in self-defence. Their
version was that there had been earlier tension inside the karaoke bar, and
after they left, one of the other men stabbed one of their companions without
warning. Mr. Ballesteros said he was also stabbed when he tried to intervene.
Later, in 2009,
the complainant signed an Affidavit of Desistance. In that affidavit, he
said the incident had been a misunderstanding, that the accused had no
intention to kill or injure him, and that if he were called to testify, he
would give evidence that would completely exonerate them. After that,
the charges were dismissed.
Even so, a visa
officer later concluded that there were reasonable grounds to believe that Mr. Ballesteros had committed an act outside Canada that would amount in
Canada to assault causing bodily harm under sections 265 and 267 of the
Criminal Code. On that basis, he was found inadmissible under section
36(1)(c) of the Immigration and Refugee Protection Act. Because he
was found inadmissible, Ms. Garcia’s own permanent residence application was
refused as well.
What did the
officer rely on?
The officer
relied mainly on the original allegations and the complainant’s medical
evidence showing that he suffered serious injuries.
In the
officer’s December 2018 GCMS notes, the officer acknowledged that the charges
had been dismissed after the complainant filed an affidavit of desistance.
Still, the officer concluded that there were reasonable grounds to believe Mr.
Ballesteros had committed an act equivalent in Canada to assault causing bodily
harm.
Later, in July
2019, the same officer added that in the Philippines it was “common practice”
to settle cases outside court and use affidavits of desistance as a way of
having charges dismissed. Based on that assumption, the officer discounted the
affidavit and maintained the inadmissibility finding.
That became a
major problem in the judicial review.
What did Ms.
Garcia argue?
Ms. Garcia
argued that the officer’s decision was both unreasonable and unfair.
Her position
was that the officer had failed to:
● properly assess whether the alleged conduct would
actually amount to a Canadian offence,
● consider the defence of self-defence,
● explain why the exculpatory evidence was rejected,
● and fairly deal with the significance of the
withdrawn charge and the complainant’s later affidavit.
She also argued
that it was unfair for the officer to assume the affidavit resulted from a
settlement without telling her that this was going to be relied on and giving
her a chance to respond.
Where the
Court found the problem
Justice
McHaffie agreed with Ms. Garcia.
The Court found
that the visa officer’s decision was both unreasonable and procedurally
unfair.
1. The
officer failed to properly address self-defence
This was one of
the most important parts of the case.
The Court held
that when an officer is deciding whether acts committed outside Canada would
amount to a Canadian offence, the officer must consider not only the elements
of the offence, but also any relevant defences under Canadian law.
That mattered
here because Mr. Ballesteros had consistently maintained that he and the others
were acting in self-defence after one of them was stabbed and he himself was
injured.
The Court
pointed to section 34 of the Criminal Code, which sets out the defence of
self-defence in Canada. Yet the officer did not meaningfully analyze whether
Mr. Ballesteros’ account, if accepted, would mean the conduct was legally
justified.
The Court said
that omission made the decision unreasonable.
2. The
officer did not reasonably assess the evidence as a whole
The Court also
found that the officer’s treatment of the evidence was inadequate.
There was
evidence supporting the original complaint, including the complainant’s
injuries. But there was also evidence supporting Mr. Ballesteros’ version,
including:
● the co-accused’s affidavit,
● evidence that one of Mr. Ballesteros’ companions had
suffered multiple stab wounds,
● evidence that another participant had been charged in
relation to that stabbing,
● and Mr. Ballesteros’ own statutory declaration.
The officer did
not explain why that evidence was rejected. Nor did the officer explain why the
complainant’s original accusation remained sufficiently compelling after the
complainant later swore that the accused had no intention to injure him and
should be exonerated.
The Court said
that without that explanation, neither Ms. Garcia nor the Court could
understand why the officer still believed there were reasonable grounds to
believe an offence had been committed.
3. The
officer speculated about settlement
The Court was
especially critical of the officer’s assumption that the Affidavit of
Desistance was probably just part of a settlement.
There was no
evidence in the record showing that any settlement had in fact taken place.
The officer simply referred to supposed common practice in the Philippines and
used that to discount the affidavit.
The Court found
that this was unreasonable. It was also unfair, because this assumption was
never put to Ms. Garcia for response before the decision was made.
In other words,
the officer relied on a significant point that was not supported by evidence
and not disclosed in advance.
What was the
result?
The Federal
Court allowed the application for judicial review.
The
inadmissibility decision was set aside, and Ms. Garcia’s permanent residence
application was sent back for redetermination by a different officer.
The Court did not say that Mr. Ballesteros was automatically admissible. What it said was that
the officer’s analysis was legally inadequate and unfair, so the decision could
not stand.
Why this
case matters
Garcia is an important reminder that
inadmissibility decisions under section 36(1)(c) are not supposed to be
shortcuts.
Even where
there are serious allegations and serious injuries, an officer still has to:
● assess the evidence carefully,
● consider exculpatory evidence,
● address available Canadian defences like
self-defence,
● and avoid speculation unsupported by the record.
The case also
shows that withdrawn charges are not automatically irrelevant, but they
do matter. If an officer is going to find a person inadmissible despite a
withdrawal and despite evidence pointing away from criminal liability, the
officer must explain why in a careful and legally sound way.
That did not
happen in Garcia.
How A&M
Canadian Immigration Law Corporation can help
At A&M
Canadian Immigration Law Corporation, we help clients deal with criminal
inadmissibility issues involving foreign charges, withdrawn proceedings,
allegations without convictions, and conduct-based findings under section 36.
Cases like Garcia show how important it is to carefully review:
● the foreign court record,
● whether charges were withdrawn or dismissed,
● whether there is evidence that supports a defence
such as self-defence,
● whether the officer actually addressed the full
evidentiary record,
● and whether procedural fairness was respected.
These cases are
often much more nuanced than they first appear. A careful legal review can make
a real difference.
If you or a family member are dealing with criminal inadmissibility based on foreign allegations or withdrawn charges, it may be worth reviewing the case closely before moving forward with an immigration application.
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