|
|
CHAPTER 8
8. CRIMINAL EQUIVALENCY
8.1 INTRODUCTION
There are several areas in the Immigration Act
(the "Act") where the issue of equivalency of foreign criminal
convictions to Canadian offences arises. If a person is found described
in one of the equivalency provisions that render him or her inadmissible
to Canada or removable from Canada, a removal order may be issued against
that person. As indicated earlier, certain persons (notably, permanent
residents) will then have a right of appeal to the Appeal Division from
the removal order on both grounds of appeal, that is, that the removal
order is not legally valid and that the discretionary jurisdiction of
the Appeal Division should be exercised in the appellant's favour.
Paragraphs 27(1)(a.1) and (a.3) are the criminal
equivalency provisions for the removal of permanent residents and paragraph
27(2)(a) deals with non-permanent residents inside Canada, while paragraphs
19(1)(c.1) and 19(2)(a.1) and (b) deal with the criminally inadmissible
classes at the port of entry and in other contexts. This Chapter also
canvasses the related provisions dealing with organized crime-paragraphs
19(1)(c.2) and 19(1)(d)-and war crimes and crimes against humanity-paragraph
19(1)(j).
8.2 RELEVANT LEGISLATIVE PROVISIONS
8.2.1. Inadmissible classes
The legislative provisions applicable in criminal
equivalency, which render persons inadmissible to Canada, are found in
the Act at paragraphs 19(1)(c.1) and 19(2)(a.1) and (b). Related provisions
are found in paragraphs 19(1)(c.2), (d) and (j).
(a) very serious offences (minimum 10 years'
imprisonment)-foreign convictions or "commissions"
-
Subparagraph 19(1)(c.1)(i) refers to persons who
there are reasonable grounds to believe have been convicted, outside
Canada, of very serious offences. In Canada these would
be federal offences punishable by 10 or more years' imprisonment.
(Subject to Ministerial rehabilitation after a five-year post-sentence
expiry period.)
-
Subparagraph 19(1)(c.1)(ii)
refers to persons who there are reasonable grounds to believe have
committed, outside Canada, very serious offences. In
Canada these would be federal offences punishable by 10 or
more years' imprisonment. (Subject to Ministerial rehabilitation
after a five-year post-commission period.)
19.(1)(c.1) persons who there are reasonable grounds to believe
(i) have been convicted outside Canada of an offence that, if committed
in Canada, would constitute an offence that may be punishable under
any Act of Parliament by a maximum term of imprisonment of ten years
or more, or
(ii) have committed outside Canada an act or omission that constitutes
an offence under the laws of the place where the act or omission
occurred and that, if committed in Canada, would constitute an offence
that may be punishable under any Act of Parliament by a maximum
term of imprisonment of ten years or more,
except persons who have satisfied the Minister that they have rehabilitated
themselves and that at least five years have elapsed since the expiration
of any sentence imposed for the offence or since the commission
of the act or omission, as the case may be;
Immigration Act, R.S.C.,
1985, c. I-2, s. 19(1)(c.1) (as amended by S.C.
1992, c. 49, s. 11(1) and by S.C.
1995, c. 15, s. 2(1))
(b) less serious offences (up to 10 years'
imprisonment)-foreign convictions or "commissions"
-
Subparagraph 19(2)(a.1)(i) refers to persons who
there are reasonable grounds to believe have been convicted, outside
Canada, of less serious offences. In Canada these would
be federal offences (including "hybrid offences") punishable
by way of indictment by less than 10 years' imprisonment. (Subject
to Ministerial rehabilitation after a five-year post-sentence expiry
period.)
-
Subparagraph 19(2)(a.1)(ii) refers to persons who
there are reasonable grounds to believe have committed, outside
Canada, less serious offences. In Canada these would
be federal offences (including "hybrid offences") punishable
by way of indictment by less than 10 years' imprisonment. (Subject
to Ministerial rehabilitation after a five-year post-commission period.)
19.(2)(a.1) persons who there are reasonable grounds to believe
(i) have been convicted outside Canada of an offence that, if committed
in Canada, would constitute an offence that may be punishable by
way of indictment under any Act of Parliament by a maximum term
of imprisonment of less than ten years, or
(ii) have committed outside Canada an act or omission that constitutes
an offence under the laws of the place where the act or omission occurred
and that, if committed in Canada, would constitute an offence that may
be punishable by way of indictment under any Act of Parliament by a
maximum term of imprisonment of less than ten years, except persons
who have satisfied the Minister that they have rehabilitated themselves
and that at least five years have elapsed since the expiration of any
sentence imposed for the offence or since the commission of the act
or omission, as the case may be;
Immigration Act, R.S.C.,
1985, c. I-2, s. 19(2)(a.1) (as amended by S.C.
1992, c. 49, s. 11(5) and by S.C.
1992, c. 49, s. 122(a) and (c))
(c) two or more minor offences (summary
convictions)
-
Subparagraph 19(2)(b)(ii) refers to persons who
there are reasonable grounds to believe have been convicted, outside
Canada, of two or more minor offences, not arising out of
a single occurrence. In Canada these would be federal offences
punishable by summary conviction. (Provided that five years
have elapsed since any sentence expiry period.)
-
Subparagraph 19(2)(b)(iii) refers to persons who
have been convicted in Canada of a federal summary conviction
offence and who there are reasonable grounds to believe have
been convicted outside Canada of an offence that, if committed
in Canada, would constitute a federal summary conviction
offence. (Provided that five years have elapsed since any sentence
expiry period.)
19.(2)(b) persons who
(ii) there are reasonable grounds to believe have been convicted
outside Canada of two or more offences, not arising out of a single
occurrence, that, if committed in Canada, would constitute summary
conviction offences under any Act of Parliament, or
(iii) have been convicted in Canada under any Act of Parliament
of a summary conviction offence, other than an offence designated
as a contravention under the Contraventions Act, and there
are reasonable grounds to believe have been convicted outside Canada
of an offence that, if committed in Canada, would constitute a summary
conviction offence under any Act of Parliament where any part of the sentences imposed for the offences was served
or to be served at any time during the five year period immediately
preceding the day on which they seek admission to Canada.
Immigration Act, R.S.C.,
1985, c. I-2, s. 19(2)(b) (as amended by S.C.
1992, c. 49, s. 11(5) and by S.C.
1992, c. 49, s. 122(a) and (c), and as further amended by S.C.
1995, c. 15, s. 2(2))
(d) organized crime
-
Paragraph 19(1)(c.2) refers to persons who there
are reasonable grounds to believe are or were members of a criminal
organization.
-
Paragraph 19(1)(d) refers to persons who there are
reasonable grounds to believe will commit a criminal offence or will
engage in a pattern of criminal activity in concert with others.
19.(1)(c.2) persons who there are reasonable grounds to believe
are or were members of an organization that there are reasonable
grounds to believe is or was engaged in activity that is part of
a pattern of criminal activity planned and organized by a number
of persons acting in concert in furtherance of the commission of
any offence under the Criminal Code or Controlled Drugs
and Substances Act that may be punishable by way of indictment
or in the commission outside Canada of an act or omission that,
if committed in Canada, would constitute such an offence, except
persons who have satisfied the Minister that their admission would
not be detrimental to the national interest.
Immigration Act, R.S.C.,
1985, c. I-2, s. 19(1)(c.2) (as amended by S.C.
1992, c. 49, s. 11(1) and by S.C.
1996, c. 19, s. 83)
19.(1)(d) persons who there are reasonable grounds to believe will
(i) commit one or more offences that may be punishable under any
Act of Parliament by way of indictment, other than offences designated
as contraventions under the Contraventions Act, or
(ii) engage in activity that is part of a pattern of criminal activity
planned and organized by a number of persons acting in concert in
furtherance of the commission of any offence that may be punishable
under any Act of Parliament by way of indictment.
Immigration Act, R.S.C.,
1985, c.I-2, s. 19(1)(d) (as amended by S.C.1992, c. 49, s. 11 and
by S.C.
1992, c. 47, s. 77)
(e) war crimes and crimes against humanity
-
Between October 30, 1987 (when it came into force) and October 23,
2000 (when it was amended), paragraph 19(1)(j) referred
to persons who there are reasonable grounds to believe have committed,
outside Canada, a war crime or a crime against humanity and that,
if it had been committed in Canada, would have constituted an
offence under Canadian law in force at that time.
19.(1)(j) persons who there are reasonable grounds to believe
have committed an act or omission outside Canada that constituted
a war crime or a crime against humanity within the meaning of subsection
7(3.76) of the Criminal Code and that, if it had been committed
in Canada, would have constituted an offence against the laws of
Canada in force at the time of the act or omission.
Immigration Act, R.S.C.,
1985, c. I-2, s. 19(1)(j) (as amended by R.S.C.,
1985 (3rd Supp.), c. 30, s. 3 and by 1992, c. 49, s. 11(3))
-
As a result of the enactment of the Crimes Against Humanity and
War Crimes Act (S.C.
2000, c. 24) and the repeal of subsection 7(3.6) of the Criminal
Code, paragraph 19(1)(j) was amended as of October
23, 2000, and now refers to "persons who there are reasonable
grounds to believe have committed an offence referred to in any of
sections 4 to 7 of the Crimes Against Humanity and War Crimes
Act. " The latter legislation sets out definitions of "war
crimes", "crimes against humanity", and "genocide",
both within and outside of Canada. In Varela, 1
the Federal Court-Trial Division held that the two provisions are
"in substance" the same, though not identical.
19.(1)(j) persons who there are reasonable grounds to believe
have committed an offence referred to in any of sections 4 to 7
of the Crimes Against Humanity Act.
Immigration Act, R.S.C.,
1985, c. I-2, s. 19(1)(j) (as amended by S.C.,
2000, c. 24, s. 55(1))
8.2.2. Permanent resident removal classes
For the removal of permanent residents there are
two applicable criminal equivalency provisions, namely paragraphs 27(1)(a.1)
and (a.3). In these cases, the onus on the Minister to establish "commissions"
requires a higher standard of proof, namely "based on a balance of
probabilities". Pursuant to paragraph 27(1)(a), a permanent resident
may also be subject to removal based on the inadmissible classes found
in paragraphs 19(1)(c.2) and (d)-organized crime, but not 19(1)(j)-war
crimes and crimes against humanity. The inadmissible class found in paragraph
19(1)(j) has to be coupled with a report pursuant to paragraph 27(1)(g)
or (h).
(a) very serious offences (minimum 10 years'
imprisonment)-foreign convictions or "commissions"
-
Subparagraph 27(1)(a.1)(i) refers to persons who
have been convicted, outside Canada, of very serious offences.
In Canada these would be federal offences punishable
by 10 or more years' imprisonment. (Subject to Ministerial rehabilitation
after a five-year post-sentence expiry period.)
-
Subparagraph 27(1)(a.1)(ii) refers to persons who,
on a balance of probabilities, have committed, outside Canada,
very serious offences. In Canada these would be federal offences
punishable by 10 or more years' imprisonment. (Subject to
Ministerial rehabilitation after a five-year post-commission period.)
27.(1)
a permanent resident
who
(a.1) outside Canada,
(i) has been convicted of an offence that, if committed in Canada,
constitutes an offence that may be punishable under any Act of Parliament
by a maximum term of imprisonment of ten years or more, or
(ii) has committed, in the opinion of the immigration officer or
peace officer, based on a balance of probabilities, an act or omission
that would constitute an offence under the laws of the place where
the act or omission occurred and that, if committed in Canada, would
constitute an offence that may be punishable under any Act of Parliament
by a maximum term of imprisonment of ten years or more, except a person who has satisfied the Minister that the person
has been rehabilitated and that at least five years have elapsed
since the expiration of any sentence imposed for the offence or
since the commission of the act or omission, as the case may be.
Immigration Act, R.S.C.,
1985, c. I-2, s. 27(1)(a.1) (as amended by S.C.
1992, c. 49, s. 16(2) and by S.C.
1995, c. 15, s. 5(1))
(b) less serious offences (up to 10 years'
imprisonment)
-
Paragraph 27(1)(a.3) refers to persons who, before
landing, have been convicted of, or committed, an offence
outside Canada which, if committed in Canada, would come
within the provisions of paragraph 27(1)(a.2). For foreign
"commissions", the act or omission must constitute an offence
under the laws of the foreign jurisdiction. (Subject to Ministerial
rehabilitation after a five-year post-sentence expiry period or five-year
post-commission period, as applicable.)
27.(1)
a permanent resident
who
(a.3) before being granted landing,
(i) was convicted outside Canada of an offence that, if committed
in Canada, would constitute an offence referred to in paragraph
(a.2), or
(ii) committed outside Canada, in the opinion of the immigration
officer or peace officer, based on a balance of probabilities, an
act or omission that constitutes an offence under the laws of the
place where the act or omission occurred and that, if committed
in Canada, would constitute an offence referred to in paragraph
(a.2), except a person who has satisfied the Minister that the person
has been rehabilitated and that at least five years have elapsed
since the expiration of any sentence imposed for the offence or
since the commission of the act or omission, as the case may be;
Immigration Act, R.S.C.,
1985, c. I-2, s. 27(1)(a.3) (as amended by S.C.
1992, c. 49, s. 16(2))
27.(1)(a.2) [a permanent resident who] before being granted landing,
was convicted in Canada of
(i) an indictable offence, or
(ii) an offence for which the offender may be prosecuted by indictment
or for which the offender is punishable on summary conviction, that may be punishable by way of indictment under any Act of Parliament
by a maximum term of imprisonment of less than ten years;
Immigration Act, R.S.C.,
1985, c. I-2, s. 27(1)(a.2) (as amended by S.C.
1992, c. 49, s. 16(2))
8.2.3. Non-permanent residents in Canada
-
Paragraph 27(2)(a) incorporates, by reference, the
criminally inadmissible categories referred to in paragraphs 19(1)(c.1),
(c.2), (d) and (j), and 19(2)(a.1) and (b).
27.(2)
a person in Canada, other than a Canadian citizen
or permanent resident,
who
(a) is a member of an inadmissible class, other than an inadmissible
class described in paragraph 19(1)(h) or 19(2)(c).
Immigration Act, R.S.C.,
1985, c. I-2, s. 27(2)(a) (as amended by S.C.
1992, c. 49, s. 16(6))
8.3 GENERAL PRINCIPLES
8.3.1 Equating the foreign offence to a Canadian federal
statute
When assessing the admissibility, or removability,
of a person who has been convicted of, or is believed to have committed,
an offence outside Canada, one must determine whether the act or activity
in question would constitute an offence in Canada. The existence of a
conviction per se is not determinative of the issue; nor is it
a requirement in the case of a "commission" (i.e., an act or
omission).
The key to determining criminal inadmissibility
lies in accurately equating the foreign offence to a Canadian federal
statute, regardless of any differences in names or wording of the statutory
offences under consideration. In other words, the act must be found to
be an offence as defined by Canadian law.2
To trigger the operation of the various grounds
of inadmissibility based on equivalency to a Canadian criminal offence,
the equivalent Canadian offence much be punishable under an Act of Parliament.
Thus a person convicted of criminal contempt of court would not be caught:
the punishment for criminal contempt is not codified, instead the power
to punish for it is derived from the common law.3
8.3.2 Determining equivalence
Leading Federal Court Dicta
Brannson v. Canada (Minister of Employment and Immigration),
[1981] 2 F.C.
141 (C.A.),
at 152-153, 153-154, per Ryan J.A.:
Whatever the names given the offences or the words used
in defining them, one must determine the essential elements of each
and be satisfied that these essential elements correspond. One must,
of course, expect differences in the wording of statutory offences
in different countries.
where, as here, the definition of the foreign offence is
broader than, but could contain, the definition of an offence under
a Canadian statute, it may well be open to lead evidence of the
particulars of the offence of which the person under inquiry was
convicted
. Such particulars might so narrow the scope of the
conviction as to bring it within the terms of the Canadian offence.
Hill v. Canada (Minister of Employment and Immigration)
(1987), 1 Imm.
L.R. (2d) 1 (F.C.A.),
at 9, per Urie J.A.:
equivalency can be determined in three ways: first,
by a comparison of the precise wording in each statute both through
documents and, if available, through the evidence of an expert or
experts in the foreign law and determining therefrom the essential
ingredients of the respective offences; two, by examining the evidence
adduced before the adjudicator, both oral and documentary, to ascertain
whether or not that evidence was sufficient to establish that the
essential ingredients of the offence in Canada had been proven in
the foreign proceedings, whether precisely described in the initiating
documents or in the statutory provisions in the same words or not;
and three, by a combination of one and two.
Li v. Canada (Minister of Citizenship and Immigration),
[1997] 1 F.C.
235 (C.A.),
at 258, per Strayer J.A.:
A comparison of the "essential elements" of
the respective offences requires a comparison of the definitions
of those offences including defences particular to those offences.
8.3.2.1. Where the foreign legislation is available
The starting point is a comparison of the wording
of the foreign and Canadian statutes with a view to determining the "essential
elements" or "ingredients" of the respective offences.
This would also entail a comparison of "defences" available
in each jurisdiction.4
The provisions need not be identical, nor is their
wording determinative of the issue. While detailed proof of exact equivalency
is not required, the essential elements of an offence committed outside
Canada must be similar to one known in Canada. One cannot assume the equivalence
of Immigration Act offences, for example, to an alleged foreign
offence of which the essential elements are not known.5
It might be in a given case that a number of Canadian
provisions are found to be equivalent. There is no legal requirement to
find the equivalent that is "most similar" and make the decision
with respect to that provision only.6
A consideration of the Canadian and foreign statutes
might well entail a consideration of how a particular provision has been
interpreted in the respective jurisprudence.7
However, the procedural or evidentiary rules of the two jurisdictions,
including the matter of burden of proof, need not be compared.8
If the essential elements are equivalent in
all relevant respects to those of the Canadian offence, or if
the foreign offence is "narrower" than the Canadian offence,
9
then it might be possible to make a finding of equivalency unless the
person can argue that there are relevant defences available with respect
to the offence in Canada which were not available in the foreign jurisdiction.
Although the elements of the Canadian offence must include within them
the elements of the foreign offence, they need not be identical.
Where the foreign offence is "broader"
than the Canadian offence, it may still be possible to make a finding
of equivalency if, based on the evidence, the facts as proven establish
that all of the elements of the Canadian offence were contained in the
acts committed by the person; in other words, by adducing evidence that
the actual activity for which the person was convicted fell within the
scope of the Canadian offence. However, where such evidence is not adduced
or available, it may not be possible to establish equivalency.10
No equivalency exists where the foreign offence
is "broader" and the particulars of the offence committed would
not bring the offence within the description of the Canadian offence,
i.e., the person's actions would not render him or her culpable in Canada.
Similarly, if there is no equivalency of defences
and the defences available in Canada are "broader" than those
available in a foreign jurisdiction, this could result in a finding that
there is no equivalency.11
It would still be open to the Minister to establish, based upon an analysis
of the particular facts which gave rise to the conviction of the offence
in the foreign jurisdiction, that the person would not have been able
to raise the broader Canadian defence, but in the absence of such evidence
and given the existence of broader defences in Canada, equivalency cannot
be established.
Where no issue of an appeal of a conviction is raised
at the inquiry (or hearing), the adjudicator (or member) is entitled to
rely on the evidence adduced by the parties. There is no duty to conduct
an inquiry beyond the evidence before the adjudicator (or member).12
For foreign convictions, where foreign legislation is available:
1. Has the person been convicted of an offence?
2. Of what offence (in the foreign jurisdiction) has the person
been convicted?
3. What are the essential elements or ingredients of that offence?
4. Are these same elements present in the Canadian offence?
5.
(a) If the Canadian offence coincides with or is broader than the
foreign offence, there is equivalency.
(b) If the Canadian offence is narrower than the foreign offence,
for equivalency to occur there must be evidence that the actual
activity for which the person was convicted fell within the scope
of the Canadian offence.
8.3.2.2. Where the foreign legislation is not available
Where the relevant foreign legislation is not available,
evidence can be adduced as to the factual foundation for the conviction.
That evidence will then be examined to ascertain whether or not it is
sufficient to establish that the "essential elements" or "ingredients"
of the offence as described in Canada have been proven in the foreign
proceedings or otherwise made out on the facts.13
In all such cases, however, there must be sufficient evidence before the
decision-maker to establish the equivalency of the foreign offence to
the Canadian one.14
Where foreign legislation is not available:
-
What conduct did the foreign court find that the person engaged
in to support the conviction?
-
Is that same conduct punishable under Canadian law?
8.3.2.3. Where the allegation involves the "commission"
of an offence outside Canada
The wording of subparagraph 19(1)(c.1)(ii), as
well as of subparagraphs 19(2)(a.1)(ii), 27(1)(a.1)(ii), and 27(1)(a.3)(ii),
is different from that found in subparagraph (i) of these respective provisions,
in that it does not state that the offence in the foreign jurisdiction
must constitute an offence in Canada. What subparagraph (ii) provides
is that the act or commission must constitute an offence in the foreign
jurisdiction, and one in Canada. In other words, it appears that there
is no requirement that the foreign and Canadian offences must be equivalent.15
Where a foreign "commission" is alleged:
-
What conduct did the evidence establish that the person engaged
in outside Canada?
-
Was it punishable in the foreign jurisdiction?
-
Is that same conduct punishable under Canadian law?
8.3.2.4. Malum in se offences
Where the foreign offence falls within a category
referred to as malum in se, (i.e., an offence such as murder
or robbery which is of such a character as to be an offence in all countries),
a strict comparison of all of the elements or ingredients may not be necessary.16
The Federal Court of Appeal in Dayan,
17
cautioned, however, that
proof of statutory provisions of the law of Israel ought to
have been made in this case if such statutory provisions exist. Alternatively,
the absence of such provisions in the statute law of that country, if
that is the fact, ought to have been established. Reliance on the concept
of offences as malum in se to prove equivalency with provisions
of our Criminal Code, is a device which should be resorted
to by immigration authorities only when for very good reason, established
to the Adjudicator's satisfaction, proof of foreign law has been difficult
to make and then only when the foreign law is that of a non-common law
country. It is a concept to which resort need not be had in the case
of common law countries. If it were not for the overwhelming evidence
of the applicant's conviction in this case for an offence known to our
law, I would not have hesitated to grant the application.
8.4 SPECIFIC RULES AND CONSIDERATIONS
8.4.1 "Reasonable grounds to believe"
The issue as to what is meant by "reasonable
grounds to believe", as found in paragraphs 19(1)(c.1) and 19(2)(a.1)
and (b), as well as in 19(1)(c.2), (d) and (j), has been dealt with by
the Federal Court in various contexts. It has been held to require a standard
of proof that is lower than the balance of probabilities.
In Jolly, 18
in relation to the provisions dealing with subversives, Thurlow J., speaking
for the majority, concluded:
It seems to me that the use by the statute of the expression
"reasonable grounds for believing" implies that the fact itself
need not be established and that evidence which falls short of proving
the subversive character of the organization will be sufficient if it
is enough to show reasonable grounds for believing that the organization
is one that advocates subversion by force, etc.
No doubt one way of showing that there are no reasonable grounds
for believing a fact is to show that the fact itself does not exist.
But even when prima facie evidence negativing the fact itself
had been given by the respondent there did not arise an onus on the
Minister to do more than show that there were reasonable grounds for
believing in the existence of the fact
. it was not necessary for
him to go further and establish the fact itself of the subersiveness
of the organization.
Thus one need not prove in relation to these provisions
that a conviction has been registered or that the offence was actually
committed; rather, the Minister must merely prove that there are reasonable
grounds for so believing. Evidence which raises a prima facie
case that the person has been convicted or that the person committed the
offence would thus be sufficient.
In Ramirez, 19
in the context of the exclusion clauses to the Convention refugee definition,
the Federal Court of Appeal stated that "the Canadian approach requires
that the burden of proof be on the Government, as well as being on a basis
of less than the balance of probabilities." The Ramirez
test was adopted by the Federal Court-Trial Division in Halm,
20
Legault 21
and Kiani, 22
in relation to paragraph 19(1)(c.1) of the Immigration Act.
In Chiau, 23
a case that dealt with paragraph 19(1)(c.2), the Court stated:
The standard or proof required to establish "reasonable grounds"
is more than a flimsy suspicion, but less than the civil test of balance
of probabilities. And, of course, a much lower threshold than the criminal
standard of "beyond a reasonable doubt". It is a bona
fide belief in a serious possibility based on credible evidence.
[footnote omitted]
In Rudolph, 24
the Federal Court of Appeal commented in relation to section 19(1)(j):
if the Adjudicator erred it was in imposing too high a standard
of proof upon the government and in according to the applicant the benefit
of the doubt, something to which paragraph 19(1)(j) does not entitle
him.
Subparagraphs 27(1)(a.1)(ii) and 27(1)(a.3)(ii),
which refer to permanent residents, require that proof of the foreign
"commission" be "based on a balance of probabilities".
8.4.2 Sufficiency of evidence
8.4.2.1 Where there is a foreign conviction
Lack of a certificate of conviction, while it leaves
something to be desired in the particularity of the evidence, can be overcome
by other evidence.25
The Immigration Appeal Board has held that a letter from the Jamaica Constabulary
indicating that their records show a conviction was prima facie
evidence of inadmissibility.26
Where value is one of the elements of an offence,
the decision-maker should ensure that evidence is adduced as to the respective
exchange values on the date of the commission of the offence with which
the person is charged abroad before determining the equivalency of the
foreign law for such offence with the Canadian law.27
8.4.2.2 Evidence of "commission"
Where there has been no conviction, the ultimate
determination as to equivalency, and thus as to the sufficiency of the
evidence relating to the foreign "commission" must be made independently
by the competent decision-maker (i.e., visa officer28
or adjudicator), based on the evidence presented to him or her.
In Legault, 29
an adjudicator issued a conditional deportation order under subparagraph
19(1)(c.1)(ii) of the Immigration Act, based on a U.S.
federal grand jury indictment on a variety of criminal offences and the
ensuing arrest warrant. The Federal Court-Trial Division judge overturned
the adjudicator's decision, holding that the contents of the indictment
and the arrest warrant did not constitute evidence of the commission of
the alleged criminal offences. The Federal Court of Appeal disagreed with
the Trial Division's analogy to criminal law and found that the adjudicator
did not err in taking into account the indictment and arrest warrant,
nor did the adjudicator fail to make an independent determination of the
facts. (Subsection 80.1(5) of the Immigration Act provides that
adjudicators can base their decisions on evidence considered credible
or trustworthy in the circumstances.) The adjudicator's weighing of the
evidence was entirely within his discretion and was not unreasonable.
In Kiani, 30
the adjudicator received in evidence a police report indicating that the
applicant had participated in a violent demonstration in Pakistan and
had been charged with criminal offences as a result. The applicant acknowledged
his participation and claimed he had lost a leg as a result of a gunshot
wound. The Federal Court-Trial Division held that the adjudicator had
sufficient evidence on which to reasonably conclude that the applicant's
testimony that he was not guilty of the charges was neither credible nor
trustworthy. Moreover, the adjudicator had made an independent determination
on the basis of the evidence before him and did not simply rely on the
police report. In upholding the Trial Division decision in Kiani,
the Federal Court of Appeal31
commented that the facts before the adjudicator in this case were more
extensive than in Legault, and noted that, in any event, the
Court of Appeal had reversed the Trial Division decision in Legault.
In Ali, 32
the Federal Court-Trial Division held that the majority of Appeal Division
erred in appearing to consider there to be a burden on the applicant to
establish his version of the events, including the self-defence argument.
The burden of proof rested with the Minister, including the burden to
disprove self-defence. The majority also erred in speculating, in the
face of a lack of expert evidence, regarding whether the fatal wound was
inflicted accidentally or intentionally.
In Drake, 33
the Federal Court-Trial Division held that no error was committed in relying
on an "Alford plea" in the United States (i.e., a plea bargain-not
a confession) to find that, on the balance of probabilities, the applicant
had committed the offence in question, and was thus described in subparagraph
27(1)(a.1)(ii) of the Immigration Act.
In Bertold, 34
the Federal Court-Trial Division held that the IAD
erred in admitting into records relating to outstanding charges in Germany,
as they were obtained contrary to the laws of Germany, and their admission
would thus contravene sections 7 and 8 of the Canadian Charter of
Rights and Freedoms.
8.4.3 The relevant time for assessing equivalency
The relevant time for determining whether the foreign
offence has a Canadian equivalent is at the time of the assessment with
respect to admissibility, and, in the case of an appeal to the Appeal
Division, at the time of the appeal.
For example, a person may have been convicted
of, or committed, acts which at that time would have been indictable offences
in Canada; however, as a result of changes to the Criminal Code
the offences may no longer be indictable at the time of the assessment
of equivalency.
In Robertson 35
the applicant was ordered deported pursuant to paragraph 19(1)(c) based
on a 1971 conviction of possession of stolen property valued at more than
$50, an offence which carried a maximum of 10 years' imprisonment. However,
the Criminal Code was subsequently amended such that that penalty
applied to stolen goods exceeding $200, which amendment was in force at
the time of the inquiry in 1978. (According to the evidence, the retail
value of the stolen property in question did not exceed $150, and the
wholesale value was approximately $45 to $60; thus the maximum punishment
at the time would have been imprisonment for two years.) In setting aside
the deportation order, the Federal Court of Appeal stated:
In my opinion, 19(1)(c) can only be used to deport a person where that
person has been convicted of an offence for which the maximum punishment
at the date of the deportation order is ten years. The word "constitutes"
in the present tense supports this view.
In Weso, 36
the applicant was convicted of "theft over" when that offence
was defined as being in possession of stolen goods in excess of $1,000.
By the time of the inquiry, the Criminal Code had been amended
to change the amount to $5,000. Possession of stolen property worth less
than $5,000 carried a penalty of no more than two years' imprisonment.
The Federal Court-Trial Division held that the adjudicator had erred in
attempting to distinguish Roberston because of a change in wording
of paragraph 19(1)(c); although it no longer contained the word "constitutes",
the remaining words still spoke in the present tense. Moreover, the adjudicator's
finding that the automobile of which the applicant was in possession,
in 1991, was worth more than $5,000 was unsupported by evidence.
On the other hand, a person may not have been
inadmissible criminally at the time of his or her conviction, but has
become so as a result of subsequent amendments to the Criminal Code.
In Ward, 37
at the time of the applicant's conviction in Ireland of the offence of
false imprisonment, the Canadian equivalent offence, namely forcible confinement,
carried a term of imprisonment of five years, whereas at the date of the
deportation order, the offence provided for a term of imprisonment not
exceeding 10 years. The Federal Court-Trial Division held that there was
no reason to distinguish the principle enunciated in Robertson,
and that the adjudicator had not erred in considering the (more severe)
punishment for the offence as of the date of the deportation order.
8.4.4 Report and direction or visa refusal letter as limiting
factors
In Anderson, 38
the Federal Court of Appeal held that there can be no switching between
the criminality provisions of section 19, where the report alleges that
the person is described in paragraph 27(2)(a) in conjunction with that
section. A person can only be found described on the basis of a ground
contained in the report. In a similar decision relating to a predecessor
provision, the Court pointed out, however, that this does not mean that
"the specific facts must be precisely as alleged in the report providing
the requirements of natural justice are complied with."39
This principle, however, does not apply to inquiries held pursuant to
a subsection 20(1) report at the port of entry, provided the person concerned
(who is seeking admission) is given notice of the fact that the removal
order is going to be made on a basis other than the basis set out in the
report.40
The Federal Court of Appeal has held that an adjudicator
is not bound to consider only the putative Canadian equivalent(s) set
out in the report. The adjudicator may consider other Canadian equivalents
if the appropriate equivalent leads to the person concerned being described
in the paragraph of the Immigration Act cited in the report.41
The Immigration Appeal Board has held that a reference in the refusal
letter to specific sections of the Criminal Code does not restrict
the Board in making a determination of equivalency to a Canadian offence.
The Board, in making that determination, may, if necessary, explore various
other provisions of the Canadian law.42
In Drake, 43
the applicant had been convicted in absentia, in 1992, in the
State of Washington of child molestation. In 1993, an adjudicator made
a deportation order for subparagraph 27(1)(a.1)(i) of the Immigration
Act, and did not rule on the subparagraph 27(1)(a.1)(ii) allegation.
In 1994, a U.S. judge
vacated the in absentia conviction and the applicant pleaded
guilty to the charges on which the earlier conviction had been based.
The appeal before the Appeal Division was postponed from 1994 until 1998.
The Appeal Division quashed the deportation order based on subparagraph
27(1)(a.1)(i), but made a new deportation order based on subparagraph
27(1)(a.1)(ii), which allegations had never been abandoned. The Federal
Court-Trial Division did not accept the applicant's main submission that
he had not been properly informed of the nature of the proceedings before
the Appeal Division.
In Chan, 44
the Federal Court-Trial Division held that the visa officer was not functus
officio and had jurisdiction to revoke the applicant's visa after
receiving new information indicating that the applicant (a triad member)
was a member of an inadmissible class. Although nothing in the Immigration
Act deals with whether a visa officer may review decisions already
made, this silence should not be construed as a prohibition against reconsideration
of decisions. A visa officer has jurisdiction to reconsider his or her
decision, particularly when new information comes to light.
In another case, after being advised by the visa
officer that a visa would be issued (but before the visa was actually
given to the applicant), it came to light that the applicant had been
convicted of an offence equivalent to section 253 of the Criminal
Code (impaired driving). The visa officer issued a further letter
denying the visa. In Park, 45
the Federal Court-Trial Division held that the visa officer was not functus
officio and was entitled to reconsider his initial decision. Furthermore,
while the refusal letter referred to the wrong sections of the Immigration
Act, the error was inadvertent: "An improper statement of the
appropriate sections can be overcome by the application of the proper
sections."
8.4.5 "Hybrid offences"
(a) Canadian convictions
Under Canadian criminal law, "hybrid offences"
are those which may be prosecuted (at the election of the Crown) either
by way of indictment or by way of summary conviction. By virtue of paragraph
34(1)(a) of the Interpretation Act, hybrid offences are "indictable"
until the prosecution elects to proceed by summary conviction. Where a
person is charged with an indictable offence but pleads guilty to a lesser
and included "hybrid offence", the plea constitutes a plea of
guilty to the indictable portion of the included offence.46
(The Crown is not required to elect whether it is proceeding by way of
indictment or summarily in such cases.)
Where an offence is prosecuted by way of summary
conviction, the maximum possible sentence, unless otherwise specified,
is six months (see section 787 of the Criminal Code ). The maximum
possible sentence for an indictable offence, unless otherwise specified,
is five years (see section 743 of the Criminal Code ).
In (Kai) Lee, 47
the Federal Court of Appeal held, in relation to the former paragraph
19(2)(a) of the Immigration Act, that a person prosecuted and
convicted in Canada by way of summary conviction is, for the purposes
of the Immigration Act, convicted of a summary offence despite
the fact that the offence could have proceeded by indictment. However,
paragraph 19(2)(a) has since been amended by virtue of Bill C-86 to render
inadmissible those persons who were charged (in Canada) with a hybrid
offence, and convicted of a summary offence because the Crown elected
to proceed summarily.48
The principle enunciated in (Kai) Lee,
appears to be still applicable in relation to paragraph 19(1)(c) of the
Immigration Act notwithstanding amendments to the wording of
that provision by virtue of Bill C-86. In other words, paragraph 19(1)(c)
does not appear to capture within its purview hybrid offences that provide
for a (maximum) punishment of 10 years if they were proceeded with by
summary conviction.49
(b) Foreign convictions or commissions
In Potter, 50
the Federal Court of Appeal held that, having regard to the language of
subparagraph 19(2)(a)(i) of the Immigration Act, (the equivalent
of the present paragraph 19(2)(a.1)), (Kai) Lee was not applicable
in the case of a person prosecuted and convicted abroad of a
hybrid offence. The determining factor in that case is whether or not
the offence could be punishable in Canada by indictment and the person
thus deemed to have been convicted by indictment.51
This same rationale would appear to apply in relation to paragraph 19(1)(c.1).
8.4.6 Two convictions "not arising out of a single
occurrence"
Subparagraph 19(2)(b)(ii) of the Immigration
Act renders inadmissible those persons who have been convicted of
the equivalent of two summary conviction offences "not arising out
of a single occurrence", until five years have elapsed since the
time of the expiry of any sentence period.
In Libby, 52
in relation to the predecessor of the similarly worded subparagraph 19(2)(b)(i),
the adjudicator found that the appellant had been convicted of two offences
not arising out of a single occurrence. The appellant had originally been
charged with theft. Pursuant to that charge, she was required to present
herself for fingerprinting and had failed to do so. She was then charged
and convicted of a second summary conviction offence for failing to appear
for fingerprinting. The Federal Court of Appeal found that these two convictions
had arisen out of the same occurrence and could not in themselves be grounds
for removal.
In Alouache, 53
the Federal Court-Trial Division came to a different conclusion based
on the facts before it. The applicant had been convicted in Canada of
three summary conviction offences, namely, failure to comply with a condition
of a recognizance, theft under $1,000 and threatening to use a weapon
in the commission of an assault. All the offences occurred within the
context of a marital dispute, but on different dates. The Court held that
the three summary convictions arose out of different occurrences. "Occurrence",
within subparagraph 19(2)(b)(i), is synonymous with "event"
and "incident", and not with "a course of events"
such as the breakdown of a marriage.
8.4.7 Meaning of the term "convicted"
The word "conviction" means a conviction
which has not been expunged. In Burgon, 54
Linden J.A. stated:
It is clear that the word "convicted" does not have a universal,
immutable meaning; this word, like so many other words, may have "equivocal"
and "different meanings depending upon the context in which it
is used".
Where a person has been undoubtedly convicted, the
validity of the conviction on the merits cannot be put in issue at the
inquiry.55
As stated in Ward, 56
the issue is not whether the applicant would have been convicted if the
entire facts had been revealed at the trial abroad, or whether he would
have been convicted in Canada on those facts; rather the issue is whether
there are reasonable grounds to believe, based on the facts at trial and
the admissions of the applicant, that the foreign conviction is equivalent
to one in Canadian law. Moreover, the Federal Court-Trial Division in
that case also rejected the applicant's argument that his offence was
political in nature and should not, therefore, be considered for the purposes
of subparagraph 19(1)(c.1)(i).57
The Federal Court of Appeal has held that a conviction
in absentia is a conviction.58
There can be no equivalency where the equivalent offence in Canada is
found to be invalid as contrary to the Canadian Charter of Rights
and Freedoms 59;
however, the fact that a foreign conviction is subsidiary to one whose
Canadian equivalent has been declared unconstitutional does not extinguish
the foreign conviction nor the subsidiary offence (jumping bail) in either
country.60
Where a Convention refugee uses a false passport to come to Canada, such
activity would not give rise to equivalency under Canadian law.61
8.4.7.1 Effect of a discharge
If a person pleads guilty to, or is found guilty
of, an offence in Canada and is granted a conditional or absolute discharge,
then this will not constitute a conviction for the purposes of the Immigration
Act. 62
Subsection 730(3) of the Criminal Code, which establishes the
effect of conditional and absolute discharges, provides, in such cases
as are specified, that "the offender shall be deemed not to have
been convicted of the offence
", subject to certain exceptions.
In Saini, 63
discussed in the section below, the Federal Court of Appeal clarified
the effect of a foreign discharge.
In Fenner, 64
the respondent was given a deferred sentence after a conviction in the
State of Washington of the offence of "negligent homicide by means
of a motor vehicle". This meant that at the end of a period of probation
he could request the opportunity to withdraw his guilty plea and have
the charge dismissed, which is, in fact, what occurred. The Immigration
Appeal Board decided that this procedure, unknown to Canadian law, was
not equivalent to an absolute or conditional discharge and that the conviction
in the first instance remained part of the applicant's record.
8.4.7.2 Effect of a pardon
The granting of a pardon in another country does
not necessarily render the person concerned admissible to Canada. The
Federal Court of Appeal considered the effect of a pardon in a foreign
jurisdiction in Burgon. 65
The Court concluded that in using the word "convicted" in section
19, Parliament meant a conviction that has not been expunged pursuant
to any other legislation it had enacted. The Court further held that when
the laws and legal system of the foreign country are substantially similar
to those of Canada in purpose, content and result, effect should be given
to a foreign pardon unless there is good reason not to do so.
The further question to consider is whether the U.K. legislation,
which is similar in purpose, but not identical to the Canadian law,
should be treated in the same way. In both countries, certain offenders
are granted the advantage of avoiding the stigma of a criminal record
so as to facilitate their rehabilitation. There is no good reason for
Canadian immigration law to thwart the goal of this British legislation,
which is consistent with the Canadian law. Our two legal systems are
based on similar foundations and share similar values
.
Unless there is some valid basis for deciding otherwise, therefore,
the legislation of countries similar to ours, especially when their
aims are identical, ought to be accorded respect. While I certainly
agree with Justice Bora Laskin that the law of another country cannot
be "controlling in relation to an inquiry about criminal convictions
to determine whether immigration to Canada should be permitted"
(see Minister of Manpower and Immigration v. Brooks, [1974]
S.C.R. 850,
at page 863), we should recognize the laws of other countries which
are based on similar foundations to ours, unless there is a solid rationale
for departing therefrom
.
There being no "conviction" in the U.K., and there being
no reason to refuse to grant recognition to the law of the U.K., which
is similar to ours, Ms. Burgon was not "convicted" as that
term is used in paragraph 19(1)(c) of the Immigration Act.
The rationale in Burgon, in relation to
the United Kingdom Powers of Criminal Courts Act, 1973, 66
was applied in Barnett 67
where the applicant, who had been convicted of burglary in the United
Kingdom, benefited from the Rehabilitation and Offenders Act, 1974.
As he was no longer deemed to have been convicted of the offence, his
U.K. conviction was spent for the purposes of subparagraph 19(1)(c.1)(i)
of the Immigration Act.
In the case of Lui, 68
the Federal Court-Trial Division interpreted Burgon as setting
out two conditions for recognizing the law of a foreign jurisdiction:
-
That the laws and legal system of the foreign jurisdiction are similar
to those of Canada; and
-
that the foreign law is similar in (a) aim or purpose, (b) content
and (c) effect, but not necessarily identical to the Canadian law.
In Lui, the Federal Court-Trial Division
found that the apparent scope of Hong Kong's Rehabilitation of Offenders
Ordinance is much narrower than that of the Criminal Records
Act of Canada. The effect of the latter, subject to very few exceptions
pertaining to certain provisions of the Criminal Code, is to
vacate a conviction if the National Parole Board grants a pardon and to
remove any disqualification to which the person so convicted is, by reason
of the conviction, subject by virtue of the provision of any Act of Parliament.
While, in a general sense, the purpose of the Hong Kong Ordinance is similar
in nature, the Court found that its effect and operation were subject
to numerous restrictions and exceptions. In particular, the conviction
is not to be treated as spent with respect to the operation of a law providing
for a disqualification as a result of the conviction. Alternatively, the
Court found that if the Hong Kong Ordinance should be recognized, all
of its provisions should be recognized, and therefore, by its terms, the
Hong Kong conviction would not be spent for the purposes of the disqualification
in subparagraph 19(1)(c.1)(i) of the Immigration Act.
In overturning the decision of the Trial Division,
the Federal Court of Appeal in Saini 69
clarified the law with respect to the effect that is to be given to a
foreign discharge or pardon:
[24] To summarize, our jurisprudence requires that three elements must
be established before a foreign discharge or pardon may be recognized:
(1) the foreign legal system as a whole must be similar to that of Canada;
(2) the aim, content and effect of the specific foreign law must be
similar to Canadian law; and (3) there must be no valid reason not to
recognize the effect of the foreign law.
The Court went on to elaborate on these requirements,
and the Canadian law regarding pardons, as follows:
[29]
The systems must be "similar" not "somewhat
similar". There is a substantial difference between the two tests;
it is not a trivial distinction. Of course, that does not mean that
the two systems must be identical, for no two legal systems are. It
does require, however, that there be a strong resemblance in the structure,
history, philosophy and operation of the two systems before its law
will be given recognition in this context.[30] Moreover, the similarity
of the systems must normally be proved by evidence to that effect, except
perhaps in the rare situation where it is obvious
. it is not enough
to assume, without evidence, as the Motions Judge has done, that another
country's system is "somewhat similar" to ours
.
[31]
we must further examine the aim, content and effect of
the specific legislation in question to determine if it is consistent
with Canadian law and, more precisely, Canadian immigration law
We must first explore the similarity of the aim and rationale of Canadian
law to the foreign law respecting pardons. It seems clear that the aims
of the Canadian laws are to eliminate the potential future effects of
convictions
Although it may be that the goals and rationale for
pardoning provisions around the world are similar, there must be evidence
of that adduced
.
[32] Second, we must address the content of Canadian laws as compared
to the foreign law regarding pardons, which includes the process as
well as the factual basis upon which it may be granted. Canadian pardons,
when granted, are almost invariably administered under the Criminal
Records Act,
a legislative scheme formulated by Parliament,
which outlines provisions regarding the guidelines, procedures and effects
of pardons. The Criminal Code contains provisions authorizing
the Governor in Council to grant free or conditional pardons
Even in the extremely rare circumstances where the royal prerogative
is invoked, established formal procedures are used to assess applicants
and make recommendations to the Crown, which may grant or deny the pardon.
[33] It is significant that, with any pardon in Canada, whether granted
under the Criminal Records Act, the Criminal Code,
or the royal prerogative of mercy, a detailed and thorough process determines
whether a pardon may or may not be granted to an applicant
.
[34]
Without evidence, this Court cannot draw a conclusion that
the content of the pardon law and procedure was similar to ours
[35] Third, we must explore the effect of a pardon in Canada as compared
to the effect of the foreign pardon. The Supreme Court of Canada discussed
the meaning and effect of a Canadian pardon in Therrien (Re),
70
The Court
focussed on the effect of pardons under the
Criminal Records Act. It explained that a pardon under the
Criminal Records Act "removes any disqualification to
which the person is subject by virtue of any federal Act or regulation
made thereunder" (at paragraph 116). Importantly, however, the
Court held that a convicted person cannot deny having been convicted
and that such a pardon does not wipe out the conviction itself; it only
limits its negative effects
.
[40] It was clearly decided in Smith 71
and Therrien that a Canadian pardon only removes the disqualifications
resulting from a conviction, and does not erase the conviction itself.
We would note that free pardons may also be granted in Canada, which
are expressly deemed by the Criminal Code to erase the conviction
as if it had never existed (see s. 748(2)). Importantly, however, a
free pardon can only be granted by the Governor in Council where a person
has been wrongly convicted, and even then, there are established procedures
that must be followed
.
[41] Even if a foreign jurisdiction has a legal system similar to ours,
the enquiry is not complete
. Canadian immigration law cannot be
bound by the laws of another country, even where that foreign law's
mirror our own. There will still be situations where Canadian immigration
law must refuse to recognize the laws of close counterparts.
[42] Thus, we must assess the third requirement of Burgon,
that there was, "no good reason for Canadian immigration law to
thwart the goal of [the] British legislation". This Court expressly
stated in that case that we ought to respect the legislation of countries
similar to ours, "unless there is some valid basis for deciding
otherwise" or there is a "solid rationale" for not doing
so
.
[43] In our view, the seriousness of the offence can be considered
under this third requirement
. The gravity of the crime of highjacking
is obvious; it is universally condemned and punished severely. Although
there is no evidence of the particular circumstances of this offence,
highjacking is an offence that is always very serious
.It is clear
that highjacking is considered to be among the most serious of criminal
offences
.
[44] In our view, the gravity of the offence can and should be considered
when deciding whether or not to give effect to a foreign pardon. Even
if the Pakistani legal system were similar, and even if the pardon were
given under a law similar to Canadian law, the conviction in this case
was for an offence so abhorrent to Canadians, and arguably so terrifying
to the rest of the civilized world, that our Court is not required to
respect a foreign pardon of such an offence.
8.4.8 Rehabilitation to overcome a prohibition against admission
Persons who have incurred criminal convictions in
Canada can no longer apply for rehabilitation. Rather, to overcome inadmissibility,
they are to apply to the National Parole Board for a pardon. Section 3
of the Criminal Records Act provides that a person who has been
convicted of an offence under an Act of Parliament or a regulation made
under an Act of Parliament can apply to the National Parole Board for
a pardon of that offence.
In relation to foreign convictions, under the present
legislation, after the expiry of the relevant statutory time period, it
is the Minister or his delegate (see section 121 of the Immigration
Act ) who must be satisfied that rehabilitation has taken place in
relation to paragraphs 19(1)(c.1), 19(2)(a.1), 27(1)(a.1) and 27(1)(a.3).
The Federal Court of Appeal has held in Gill,
72
that a person is inadmissible until such time as the Governor in Council
(at the time it was the Governor in Council who had to be satisfied on
this account and this power could not be delegated) has made a positive
determination with respect to rehabilitation, and that a visa officer
does not err by refusing an application of a person who is inadmissible
without putting the issue of rehabilitation before the Governor in Council.
The Court held that there was no obligation for the Governor in Council
to make a negative determination before the determination was made concerning
admissibility.73
The same result was reached in relation to a port-of-entry inquiry in
Dance. 74
The Immigration Appeal Board has ruled that, as
a matter of procedural fairness, there is a duty on the visa officer processing
an application for an immigrant visa to advise the applicant of the possibility
of applying for rehabilitation.75
However, the Federal Court-Trial Division in Wong 76
considered a case where material showing rehabilitation had been submitted
by the applicant to the visa officer, rather than to the Governor in Council
as was then required. The Court stated that, although it was "unfortunate"
the visa officer had not assisted in routing the material, this did not
constitute a reviewable error.
In Lakhani, 77
the Federal Court-Trial Division held that the visa officer was not obligated
to advise the applicant of the process for obtaining a decision of the
Governor in Council that the applicant had been rehabilitated; neither
was the visa officer obligated to initiate that process on behalf of the
applicant. The onus was on the applicant to provide evidence of rehabilitation.
Because the applicant gave no evidence of rehabilitation to the visa officer
and failed to disclose his conviction on his written application form,
the visa officer was not satisfied that the applicant was, in fact, rehabilitated.
The issue which has not been resolved is whether
this applies to the situation where the Minister makes the decision as
to rehabilitation, given the proximity of the visa officer to the Minister.
Does this impose an obligation of fairness on the visa officer to advise
the applicant about the exception in these sections?
In Leung, 78
the Federal Court-Trial Division held that there was no duty on the visa
officer to question the reasonableness of the Minister's decision on an
application for approval of rehabilitation where, on the face of the record,
the decision may be unreasonable. The responsibility for rehabilitation
decisions has been clearly vested in the Minister, not in officials such
as visa officers. This decision was upheld by the Federal Court of Appeal.79
In Kan, 80
the Federal Court-Trial Division held that if a visa officer finds that
an applicant falls into a criminally inadmissible class, then it is the
Minister's task to determine whether or not that applicant has been rehabilitated.
At most, a pardon obtained could perhaps be one of the Minister's considerations
for that purpose. The visa officer, therefore, did not err by not considering
the applicant's pardon under Hong Kong law.
8.4.9 Transitional provisions and the effect of amendments
to the Immigration Act
The Federal Court has held that section 109 of the
Transitional Provisions to Bill C-86 (as enacted by S.C.
1992, c. 49) expressly overrides any common law presumption against the
retrospective application of a change in legislation. In the circumstances
of that case, the amended paragraph 19(2)(a) (since amended again) would
apply, such that the applicant's earlier summary conviction for the hybrid
offence (of failing to remain at the scene of an accident) would render
him inadmissible, even though he would not have been inadmissible under
the previous provision of the Immigration Act. 81
In Cortez, 82
at a pre-February 1, 1993 inquiry, the applicant had been found not to
be described in paragraph 27(2)(a) and subparagraph 19(2)(b)(i) of the
Immigration Act, as it then read. Pursuant to a further report
of March 2, 1993, a second inquiry was held to determine whether the applicant
contravened the amended paragraph 19(2)(a) (it was amended by virtue of
Bill C-86, effective February 1, 1993). At the second inquiry the applicant
was found to be in contravention of the Act based on the same Canadian
convictions as alleged at the first inquiry. The Federal Court-Trial Division
held:
the real issue that must be determined is the admissibility
of the applicant at the time of the inquiry, namely in May of 1993.
This is not a question of retrospectivity
.
at the time of the inquiry, the applicants admissibility had
to be determined based on these facts and the applicable provisions
of the Act, namely paras. 27(2)(a) and 19(2)(a) as they read after the
1993 amendments.
In Bubla, 83
the Federal Court of Appeal considered the effect of an amendment to paragraph
19(1)(c) of the Immigration Act, which, prior to February 1,
1993, dealt with foreign convictions as well as Canadian ones. By virtue
of Bill C-86, this provision was split in two, creating paragraph 19(1)(c.1)
for foreign convictions. The appellant was ordered deported by an adjudicator
on March 3, 1992 as a person described in paragraph 27(1)(a) based on
his inadmissibility under paragraph 19(1)(c). The Appeal Division, which
heard the appeal after February 1, 1993, concluded that the substantive
law as amended should apply to determine the validity of the deportation
order and that such amendment invalidated the order. In upholding the
adjudicator's decision, the Federal Court of Appeal held that section
109 of the Transitional Provisions to Bill C-86 properly applied, and
rejected the Appeal Division's conclusion that "the deportation order
had to be treated as invalid because
the section numbers had changed."
In support of its decision, the Court applied the Interpretation Act
and general principles of statutory interpretation. Unless Parliament
has clearly indicated otherwise, the correctness of the adjudicator's
decision must be measured by the law in force at the time of the decision.
A similar conclusion was arrived at in Engel,
84
where the applicant's inquiry had commenced on April 30, 1992, before
the coming into force of the amendments found in Bill C-86. The adjudicator
properly determined the applicant's admissibility pursuant to paragraph
19(1)(c), as it read prior to the amendments, and issued the deportation
order on May 18, 1994, on the basis of the provisions as they existed
on the date of issuance, namely subparagraph 19(1)(c.1)(i).
8.5 ORGANIZED CRIME
8.5.1 Paragraph 19(1)(c.2)
In Chan, 85
the Federal Court-Trial Division stated in relation to an allegation under
paragraph 19(1)(c.2):
It must be shown that the visa officer had reasonable grounds to believe
that the applicant is or was a member of an organization that there
are reasonable grounds to believe is or was engaged in crime. This does
not mean that there must be proof that the organization is criminal
or that the applicant is or was an actual member of such an organization,
but only that there are reasonable grounds to believe she is or was
a member of such an organization.86
The Court held, in that case, that the visa officer
had more than adequate grounds upon which to base his decision that the
applicant, a member of a triad (a Chinese society existing for criminal
purposes), should not be admitted to Canada.
In Chiau, 87
the applicant had been denied a visa because of suspected association
with triad organizations. Following Jolly 88
and Chan, 89
the Federal Court-Trial Division held that there is no need to prove that
the organization is criminal or that the applicant is an actual member.
After a discussion of the intent of paragraph 19(1)(c.2) of the Immigration
Act, the Court in Chiau concluded that "it cannot be
said that the term 'member' should be interpreted as meaning actual or
formal membership coupled with active participation in unlawful acts.
Being a 'member' of a criminal organization means simply belonging to
a criminal organization." Moreover, since the visa officer had extensive
experience and specialized knowledge with reference to triad activities
in Hong Kong and elsewhere, it was well within his competence to define
the meaning of membership in a triad, and the Court must view with considerable
deference his definition of "reasonable grounds" and "member".
In upholding this decision, Justice Evans of the
Federal Court of Appeal stated:
by equating being a "member" with "belonging to"
a criminal organization, the Trial Division Judge correctly concluded
that, in this context, the term should be broadly understood
.
First, in my view, paragraph 19(1)(c.2) of the Act is broad enough
to enable Canada to protect its national security by excluding, not
only those intending to commit crimes here, but also those whose presence
in Canada may be used to strengthen a criminal organization or to advance
its purposes.
Second, it will not always be possible to draw a bright line between
the legitimate business activities of a criminal organization and its
criminal activities. The former may be used to launder the proceeds
of the latter, while the organization's criminal activities may in turn
be financed by profits made from a successful legitimate business that
it controls. Hence, a person's participation in a legitimate business,
knowing that it is controlled by a criminal organization, in some circumstances
may support a reasonable belief that the person is a member of the criminal
organization itself.90
In Yuen, 91
the applicant had joined the 14K Triad gang in Hong Kong as a teenager.
He was convicted of theft in Hong Kong in 1979. The Federal Court-Trial
Division held that the adjudicator did not err in determining that paragraph
19(1)(c.2) of the Immigration Act did not violate subsection
2(d) of the Canadian Charter of Rights and Freedoms
-the right to freedom of association. Paragraph 19(1)(c.2) does not make
membership in an organization unlawful in Canada; it precludes from admission
to Canada those who are unable to satisfy the Minister that their admission
would not be detrimental to the national interest. Moreover, it applies
in the case of foreign nationals, who have no right to enter or remain
in Canada except as the Immigration Act permits. Subsection 2(d)
of the Charter is not engaged because the right conferred by that provision
does not extend beyond the boundaries of Canada to protect the right of
a foreign national to be a member of a foreign criminal organization.
Even if subsection 2(d) of the Charter were engaged, the restriction on
the right to freedom of association contained in paragraph 19(1)(c.2)
is a reasonable limit prescribed by law which can be demonstrably justified
in a free and democratic society (section 1 of the Charter). This decision
was upheld by the Federal Court of Appeal which stated:
It is clear from the language of the Charter that subsection 2(d) only
protects the exercise of association for lawful pursuits or objectives
.
Where, as here, the organization has but one single brutal purpose,
mere membership is sufficient to bring the Appellant within the provisions
of paragraph 19(1)(c.2) of the Act.92
8.5.2 Paragraph 19(1)(d)
In Ali, 93
the applicant had two wives in Kuwait. He filed an application for permanent
residence with wife number one, their three children and two children
of the second marriage. Wife number two filed a separate application on
the same day. The applications were refused on the grounds that the visa
officer was of the opinion that there were reasonable grounds to believe
that the applicants intended to practice polygamy contrary to section
293 of the Criminal Code, and thus were inadmissible under subparagraph
19(1)(d)(i) of the Immigration Act. The Federal Court-Trial Division
dismissed the application for judicial review. The issue of whether the
second marriage would be recognized in Canada was irrelevant: the only
question was whether the applicant would have more than one wife in Canada.
Contrary to counsel's arguments, it did not matter whether the applicants
were taking any active steps to practice polygamy in Canada. The practice
of polygamy is having more than one spouse at the same time. The Court
certified a question.
8.6 WAR CRIMES AND CRIMES AGAINST HUMANITY
Paragraph 19(1)(j) of the Immigration Act
applies to removal order appeals for those ordered removed under section
19. It also applies, in more limited circumstances, to permanent residents
ordered removed as being described in paragraph 27(1)(g) or (h). The latter
provisions encompass only those permanent residents described in paragraph
19(1)(j) who were landed subsequent to the coming into force of paragraph
19(1)(j), or who became a member of that inadmissible class subsequent
to the coming into force of that provision. (Paragraph 19(1)(j) came into
force on October 30, 1987.)
As a result of the enactment of the Crimes Against
Humanity and War Crimes Act, paragraph 19(1)(j) was amended effective
October 23, 2000, and now refers to "persons who there are reasonable
grounds to believe have committed an offence referred to in any of sections
4 to 7 of the Crimes Against Humanity and War Crimes Act. "
The latter legislation sets out definitions of "war crimes",
"crimes against humanity" and "genocide", both within
and outside of Canada. In Varela, 94
the Federal Court-Trial Division held that the two provisions are "in
substance" the same, though not identical.
In order for a person to fall within the ambit of
paragraph 19(1)(j), as it read before its amendment on October 23, 2000:
-
The person need not have been convicted of an offence: it is sufficient
if there are "reasonable grounds" to believe that the person
committed the offence;
-
the offence must be one that would now be considered a war crime
or crime against humanity as those terms are defined in subsection
7(3.76) of the Criminal Code of Canada; and
-
the offence in question would have constituted an offence under Canadian
law at the time it was committed.
The leading case on this issue is Rudolph.,
95
In that case, the Federal Court of Appeal rejected the argument that paragraph
19(1)(j) was offensive because it resulted in the retrospective application
of legislation:
It is not retrospective legislation to adopt today a rule which henceforward
excludes persons from Canada on the basis of their conduct in the past.
Paragraph 19(1)(j) makes specific reference to
subsection 7(3.76) of the Criminal Code. That subsection incorporates,
by reference, into Canadian law both customary and conventional international
law. Therefore, in determining whether the conduct in question was prohibited
by custom or conventional international law, one first looks at international
conventions in effect at the time that the conduct occurred. In this particular
case, the Court considered the Convention on the Laws and Customs
of War on Land concluded at the Hague on October 18, 1907. Secondly,
the Court looked to customary international law. Such a body of law existed
in the period 1943-1945 with regard to war crimes and crimes against humanity.
Further, the Charter of the International Military Tribunal which, following
the end of the war in Europe in 1945, created a tribunal to try war crimes
was, in Article 6, declaratory of existing customary international law
with respect to crimes against peace, war crimes, and crimes against humanity.
The Charter of the International Military Tribunal was expressly recognized
and affirmed by Resolution 95(1) of the General Assembly of the United
Nations, adopted on December 11, 1946. These instruments are very strong
evidence of the content of existing customary international law during
the relevant period.
The Court went on to hold that
the second, or "Canadian" branch of the "double criminality"
requirement of paragraph 19(1)(j) mandates the notional transfer to
Canadian soil of the actus reus only ("an act or omission
that, if it had been committed in Canada") and not the entire
surrounding circumstances so as to permit a plea of obedience to a de
facto foreign state authority
.
in deciding if the applicant's conduct would have constituted an offence
against the laws of Canada, his acts and omissions, but not the entire
state apparatus of the Third Reich, were notionally transferred to this
country. The fact that the German government ordered or condoned the
applicant's conduct during World War II is no defence to a charge of
doing the same thing in Canada.
The adjudicator's findings of fact constituted reasonable
grounds to believe that the applicant aided and abetted the crimes of
kidnapping under subparagraph 297(a)(ii) of the Criminal Code,
in force in Canada in 1943-1945, and forcible confinement under paragraph
297(b).
In the decision of Caballero, 96
the Federal Court-Trial Division considered as appropriate the approach
taken by the adjudicator in applying paragraph 19(1)(j), as it read before
it was amended on October 23, 2000, to the facts of that case:
The Adjudicator first addressed the question as to whether the activities
described by the applicant fell within the meaning of "crimes against
humanity". In defining this phrase, the Adjudicator relied on a
passage from R. v. Finta, [1994] 1 S.C.R.
701 at 814 where Mr. Justice Cory stated:
What distinguishes a crime against humanity from any other criminal
offence under the Canadian Criminal Code is that the cruel and terrible
actions which are essential elements of the offence were undertaken
in pursuance of a policy of discrimination or persecution of an identifiable
group
.
The Adjudicator concluded that the applicant's actions constituted
crimes against humanity
.
The Adjudicator next considered the defence of duress or coercion,
specifically that the applicant was following orders and that to refuse
meant putting his own life at risk. Relying on the Federal Court of
Appeal's decision in Ramirez v. Canada (Minister of Employment and
Immigration), [1992] 2 F.C.
306, the Adjudicator concluded that such a defence required the applicant
to demonstrate that he was himself in danger of imminent harm, the evil
threatened him was, on balance, greater than the evil inflicted on his
victims and that he was not responsible for his own predicament. The
Adjudicator also relied on Finta, supra, wherein the Court
clarified the defence of obedience to superior orders, finding that
such a defence was not available when the orders in question were manifestly
unlawful. The Adjudicator then proceeded to consider whether the applicant
had satisfied the conditions precedent to relying on the defences of
duress, coercion or obedience to superior orders.
The Court went on to hold that:
-
The adjudicator did not err in finding the "identifiable group"
to be comprised of any person or persons who were suspected by the
applicant's superiors of being subversive or who were perceived to
be of some threat to the established authorities.
-
While the assessment of the applicant's moral choice (vis-à-vis
the defence of obedience to superior orders) is not as clear as it
might ideally be, the adjudicator did turn his mind to the issue of
superior orders and determined that the applicant could have disobeyed.
-
Whether a person is or is not in "imminent harm" is a question
of fact, based upon the circumstances surrounding his or her particular
case.
-
The question before the adjudicator was not whether the applicant
should be "pardoned" for those crimes because he later helped
to shed light on the crimes of his superiors.
In Mugesera, 97
the Federal Court-Trial Division considered the validity of a deportation
order issued under paragraph 19(1)(j), as that provision read before it
was amended on October 23, 2000. The applicant had delivered a speech
in Rwanda in November 1992 inciting the persons present to violence and
the murder of Tutsi and political opponents. The Court held that the question
of whether the applicant committed or participated in the commission of
war crimes or crimes against humanity was a determination of law and not
of fact. The Court held that, while a different interpretation could have
been given to the speech, the Appeal Division's interpretation and conclusion
that parts of it constituted an incitement to murder and genocide were
not unreasonable. However, the Appeal Division erred in law in finding
that the speech constituted a crime against humanity. Absent proof of
a direct or indirect link between the speech and some murders in a systematic
and widespread manner, the speech is not by itself cloaked in the requisite
inhumaneness for it to constitute a crime against humanity. The Court
certified a question on this issue.
In Varela, 98
the Federal Court-Trial Division held that an adjudicator is not bound
by an earlier determination of the Convention Refugee Determination Division
excluding the applicant from refuge status under Article 1F(a) of the
Convention relating to the Status of Refugees. However, it would be open
to the adjudicator to take into account an earlier decision of the Refugee
Division. Moreover, the Court held that, having regard to section 44 of
the Interpretation Act, an inquiry commenced under the repealed
paragraph 19(1)(j) can be continued under the "new" paragraph
19(1)(j) that came into force on October 23, 2000 as a result of the enactment
of the Crimes Against Humanity and War Crimes Act, since the
two provisions are "in substance" the same, though not identical
in scope.
8.7 OFFENCES COMMITTED OUTSIDE CANADA BY YOUNG OFFENDERS
There is a dearth of jurisprudence on this topic.
The guiding principle for equivalency was enunciated in Potter,
99
namely:
had the offence been committed in Canada, could [the person]
have been convicted of an offence in respect of which he might have
been proceeded against by way of indictment in Canada, and whether,
if convicted in Canada, he might have been imprisoned for a maximum
term of
In Hall, 100
a decision involving a permanent resident who had been convicted in Canada
in 1981 for crimes that he committed at the age of 17, the Federal Court
of Appeal held:
There is no merit in the appellant's submission that the Young
Offenders Act, which came into force in April 1984, applied to
the case at bar and therefore prevented the board from considering the
criminal record of the appellant for crimes that he committed at the
age of 17 when he was a young person and for which he had been convicted
under the Juvenile Delinquents Act.
[Section 36(1)(b) of the Young Offenders Act ] does not apply
retroactively to proceedings that originated and were fully completed
under the repealed Juvenile Delinquents Act and to dispositions
made under this Act which contained no similar provision.
The following situations, with tentative outcomes,
might arise for consideration in this context:
- When a person has been treated as a young offender under foreign law,
and no conviction has been recorded-such a person would likely not be
criminally inadmissible to Canada.
- When a young person has been convicted in an adult court in a country
which has a special procedure for young offenders-the conviction would
likely be treated in the regular manner.
- Subject to (d) or (e) below, where a foreign conviction has been registered
in an adult court, the foreign jurisdiction having no system for young
offenders, or in a foreign court for young offenders, where the disposition
registered has not yet ceased to have effect-the young offender would
likely be considered to have been convicted.
- When a person has committed an offence for which, in Canada, he could
not be transferred to adult court (see section 553 of the Criminal
Code and subsection 16(1) of the Young Offenders Act )-such
a young offender would likely be considered not to have been convicted
for immigration purposes.
- When the young offender has committed an offence for which, in Canada,
he would not have been dealt with in adult court (see factors for transfer
to be considered set out in subsection 16(2) of the Young Offenders
Act )-such a young offender would likely be considered not to have
been convicted.
However, in Wong, 101
the Minister conceded that the visa officer made an error in law in denying
a visa to an applicant who was 17 years old at the time of his conviction,
in Hong Kong, for possession of an offensive weapon and had not rehabilitated
himself. (The visa officer found him inadmissible under subparagraph 19(2)(a.1)(i)
of the Act.) In overturning the visa officer's decision, the Court held:
since the Applicant was 17 years at the time of his conviction,
he could not, under normal circumstances, be found guilty of an "offence"
in Canada "punishable by indictment". This is so because he
would have been dealt with in Canada as a "young person
" under the Young Offenders Act.
8.8 DISCRETIONARY JURISDICTION
On the appeal of a removal order for a person, generally
a permanent resident, who was ordered removed by virtue of being described
in one of the criminal equivalency provisions, the Appeal Division can
exercise its discretionary jurisdiction in the appellant's favour. For
a detailed discussion of the Appeal Division's discretionary jurisdiction,
see Chapter 9.
- Ali, Abdi Rahim v. M.C.I.
(F.C.T.D.,
no. IMM-2993-99), Gibson,
July 20, 2000
- Ali, Bahig Mohamed Skaik v. M.C.I.
(F.C.T.D.,
no. IMM-613-97), Rothstein,
November 2, 1998
- Alouache, Samir v. M.C.I.
(F.C.T.D.,
no. IMM-3397-94), Gibson,
October 11, 1995. Reported: Alouache v. Canada (Minister of Citizenship
and Immigration) (1995), 31 Imm.
L.R. (2d) 68 (F.C.T.D.)
- Anderson v. Canada (Minister of Employment and Immigration),
[1981] 2 F.C. 30
(C.A.)
- Arnow, Leon Maurice v. M.E.I.
(F.C.A.,
no. A-599-80), Heald, Ryan,
MacKay, September 28, 1981
- Barnett, John v. M.C.I.
(F.C.T.D.,
no. IMM-4280-94), Jerome,
March 22, 1996. Reported: Barnett v. Canada (Minister of Citizenship
and Immigration) (1996), 33 Imm.
L.R. (2d) 1 (F.C.T.D.)
- Bertold, Eberhard v. M.C.I.
(F.C.T.D.,
no. IMM-522), Muldoon, September
29, 1999. Reported: Bertold v. Canada (Minister of Minister of Citizenship
and Immigration) (1999), 2 Imm.
L.R. (3d) 46 (F.C.T.D.)
- Brannson v. Canada (Minister of Employment and Immigration,
[1981] 2 F.C. 141
(C.A.)
- Brar: M.C.I.
v. Brar, Pinder Singh (F.C.T.D.,
no. IMM-6318-98), Campbell,
November 23, 1999
- Bubla v. Canada (Solicitor General), [1995] 2 F.C.
680 (C.A.)
- Burgon: Canada (Minister of Employment and Immigration) v. Burgon,
[1991] 3 F.C. 44
(C.A.)
- Button v. Canada (Minister of Manpower and Immigration),
[1975] F.C. 277 (C.A.)
- Caballero, Florencio v. M.C.I.
(F.C.T.D.,
no. IMM-272-96), Heald, November
13, 1996
- Cameron, Beverley Mae v. M.E.I.
(IAB V83-6504),
D. Davey, Hlady, Voorhees, September 11, 1984
- Canada (Minister of Manpower and Immigration) v. Brooks,
[1974] S.C.R.
850
- Chan v. Canada (Minister of Citizenship and Immigration),
[1996] 3 F.C. 349
(T.D.)
- Chiau v. Canada (Minister of Citizenship and Immigration),
[1998] 2 F.C. 642
(T.D.)
- Chiau v. Canada (Minister of Citizenship and Immigration),
[2001] 2 F.C. 297
(C.A.)
- Chiau, v. Canada (Minister of Citizenship and Immigration),
[1998] 2 F.C. 642
(T.D.).
- Choi, Min Su v. M.C.I.
(F.C.T.D.,
no. IMM-975-99), Denault,
May 8, 2000
- Chong, Chor Shan v. M.C.I.
(F.C.T.D.,
no. IMM-4038-00), McKeown,
December 4, 2001
- Clarke, Derek v. M.E.I.
(F.C.A.,
no. A-588-84), Thurlow, Hugessen,
Cowan, October 31, 1984
- Cortez, Rigoberto Corea v. S.S.C.
(F.C.T.D.,
no. IMM-2548-93), Rouleau,
January 26, 1994. Reported: Cortez v. Canada (Secretary of State)
(1994), 23 Imm.
L.R. (2d) 270 (F.C.T.D.)
- Crawford v. (Canada) Minister of Employment and Immigration
(1987), 3 Imm.
L.R. (2d) 12 (IAB)
- Dance, Neal John v. M.C.I.
(F.C.T.D.,
no. IMM-366-95), MacKay,
September 21, 1995
- Davis, Kent Douglas v. M.E.I.
(F.C.A.,
no. A-81-86), Urie, Hugessen,
MacGuigan, June 19, 1986
- Dayan v. Canada (Minister of Employment and Immigration),
[1987] 2 F.C. 569
(C.A.)
- Drake, Michael Lawrence v. M.C.I.
(F.C.T.D.,
no. IMM-4050-98), Tremblay-Lamer,
March 11, 1999. Reported: Drake v. Canada (Minister of Citizenship
and Immigration) (1999), 49 Imm.
L.R. (2d) 218 (F.C.T.D.)
- Eggen v. Canada (Minister of Manpower and Immigration), [1976]
1 F.C. 643 (C.A.)
- Engel, Hans Gunther v. S.S.C.
(F.C.T.D.,
no. IMM-2634-94), Richard,
April 19, 1995. Reported: Engel v. Canada (Secretary of State)
(1995), 29 Imm.
L.R. (2d) 234 (F.C.T.D.)
- Fenner: M.E.I.
v. Fenner, Charles David (IAB
V81-6126), Campbell, Tremblay, Hlady, December 11, 1981
- Figueroa, Rony Danilo v. M.C.I.
(F.C.A.,
no. A-138-00), Desjardins,
Décary, Noël, April 6, 2001
- Figueroa, Rony Danilo v. M.C.I.
(F.C.T.D.,
no. IMM-1264-99), Pinard,
February 25, 2000
- Gill: M.E.I.
v.Gill, Hardeep Kaur (F.C.A.,
no. A219-90), Heald, Hugessen,
Stone, December 31, 1991. Reported: Canada (Minister of Employment
and Immigration) v. Gill (1991), 137 N.R.
373 (F.C.A.)
- Hall, Othniel Anthony v. M.E.I.
(F.C.A.,
no. A-1005-91), Stone, Létourneau,
Robertson, July 6, 1994. Reported: Hall v. Canada (Minister of Employment
and Immigration) (1994), 25 Imm.
L.R. (2d) 1 (F.C.A.)
- Halm v. Canada (Minister of Employment and Immigration),
[1995] 2 F.C. 331
(T.D.)
- Halm v. Canada (Minister of Employment and Immigration),
[1996] 1 F.C. 547
(T.D.)
- Hill, Errol Stanley v. M.E.I.
(F.C.A.,
no. A-514-86), Hugessen,
Urie, MacGuigan, January 29, 1987. Reported: Hill v. Canada (Minister
of Employment and Immigration) (1987), 1 Imm.
L.R. (2d) 1 (F.C.A.)
- Jeganathan, Vathsala v. M.C.I.
(IAD
T95-06869), D'Ignazio, December 5, 1997
- Jolly: Canada (Attorney General and Minister of Manpower and Immigration)
v. Jolly, [1975] F.C.
216 (C.A.)
- Kalicharan v. Canada (Minister of Manpower and Immigration),
[1976] 2 F.C. 123
(T.D.)
- Kan, Chow Cheung v. M.C.I.
(F.C.T.D.,
no. IMM-728-00), Rouleau,
November 21, 2000
- Kanes, Chellapah v. M.E.I.
(F.C.T.D.,
no. IMM-1918-93), Cullen,
December 14, 1993. Reported: Kanes v. Canada (Minister of Employment
and Immigration) (1993), 22 Imm.
L.R. (2d) 223 (F.C.T.D.)
- Kiani, Raja Ishtiaq Asghar v. M.C.I.
(F.C.A.,
no. A-372-95), Isaac, Linden,
Sexton, October 22, 1998
- Kiani, Raja Ishtiaq Asghar v. M.C.I.
(F.C.T.D.,
no. IMM-3433-94), Gibson,
May 31, 1995. Reported: Kiani v. Canada (Minister of Citizenship
and Immigration) (1995), 31 Imm.
L.R. (2d) 269 (F.C.T.D.)
- Ladbon, Kamran Modaressi v. M.C.I.
(F.C.T.D.,
no. IMM-1540-96), McKeown,
May 24, 1996
- Lakhani, Salim D. v. M.C.I.
(F.C.T.D.,
no. IMM-1047-96), Heald,
October 7, 1996. Reported: Lakhani v. Canada (Minister of Citizenship
and Immigration) (1996), 36 Imm.
L.R. (2d) 47 (F.C.T.D.)
- Lam, Chun Wai v. M.E.I.
(F.C.T.D.,
no. IMM-4901-94), Tremblay-Lamer,
November 14, 1995
- Lavi, Diane v. M.E.I.
(IAB T-83-9929),
Falardeau-Ramsay, Teitelbaum, Tisshaw, April 24, 1985
- Lee v. Canada (Minister of Employment and Immigration), [1980]
1 F.C. 374 (C.A.)
- Legault v. Canada (Secretary of State) (1995), 26 Imm.
L.R. (2d) 255 (F.C.T.D.)
- Legault, Alexander Henri v. S.S.C.
(F.C.T.D.,
no. IMM-7485-93), McGillis,
January 17, 1995
- Legault: M.C.I.
v. Legault, Alexander Henri (F.C.A.,
no. A-47-95), Marceau, MacGuigan,
Desjardins, October 1, 1997. Reported: Canada (Minister of Citizenship
and Immigration) v. Legault (1997), 42 Imm.
L.R. (2d)
192 (F.C.A.)
- Lei, Alberto v. S.G.C. (F.C.T.D.,
no. IMM-5249-93), Nadon,
February 21, 1994. Reported: Lei v. Canada (Solicitor General)
(1994), 24 Imm.
L.R. (2d) 82 (F.C.T.D.)
- Leung v. Canada (Minister of Citizenship and Immigration)
(1998), 45 Imm.
L.R. (2d) 242 (F.C.T.D.)
- Leung, Chi Wah Anthony v. M.C.I.
(F.C.A.,
no. A-283-98), Stone, Evans,
Malone, May 3, 2000
- Leung, Chi Wah Anthony v. M.C.I.
(F.C.T.D.,
no. IMM-1061-97), Gibson,
April 20, 1998. Reported: Leung v. Canada (Minister of Citizenship
and Immigration) (1998), 45 Imm.
L.R. (2d) 242 (F.C.T.D.)
- Lew v. Canada (Minister of Manpower and Immigration), [1974]
2 F.C. 700 (C.A.)
- Li v. Canada (Minister of Citizenship and Immigration), [1997]
1 F.C. 235 (C.A.)
- Libby, Tena Dianna v. M.E.I.
(F.C.A.,
no. A-1013-87), Urie, Rouleau,
McQuaid, March 18, 1988. Reported: Libby v. Canada (Minister of
Employment and Immigration) (1988), 50 D.L.R. (4th) 573 (F.C.A.)
- Lui, Wing Hon v. M.C.I.
(F.C.T.D.,
no. IMM-2783-95), Rothstein,
July 29, 1997. Reported: Lui v. Canada (Minister of Citizenship
and Immigration)
- Maleki, Mohammed Reza v. M.C.I.
(F.C.T.D.,
no. IMM-570-99), Linden,
July 29, 1999. Reported: Maleki v. Canada (Minister of Citizenship
and Immigration) (1999) 2 Imm.
L.R. (3d) 272 (F.C.T.D.)
- Masasi, Abdullai Iddi v. M.C.I.
(F.C.T.D.,
no. IMM-1856-97), Cullen,
October 23, 1997. Reported: Masasi v. Canada (Minister of Citizenship
and Immigration) (1997), 40 Imm.
L.R. (2d) 133 (F.C.T.D.)
- Massie, Pia Yona v. M.C.I.
(F.C.T.D.,
no. IMM-6345-98), Pinard,
May 26, 2000
- Mohammad v. Canada (Minister of Employment and Immigration),
[1989] 2 F.C. 363
(C.A.)
- Moore, Terry Joseph v. M.E.I.
(F.C.A.,
no. A-501-88), Heald, Hugessen,
Desjardins, January 31, 1989
- Mugesera v. Canada (Minister of Citizenship and Immigration),
[2001] 4 F.C. 421
(T.D.)
- Ngalla, Binta Mamboh v. M.C.I.
(F.C.T.D.,
no. IMM-4785-96), Nadon,
March 13, 1998. Reported: Ngalla v. Canada (Minister of Citizenship
and Immigration) (1998), 44 Imm.
L.R. (2d) 79 (F.C.T.D.)
- Owens: M.C.I.
v.Owens, Kathleen (F.C.T.D.,
no. IMM-5668-99), Dawson,
October 11, 2000. Reported: Owens v. Canada (Minister of Citizenship
and Immigration) (2000), 9 Imm.
L.R. (3d) 101 (F.C.T.D.)
- Park, Jong In v. M.C.I.
(F.C.T.D.,
no. IMM-3327-97), Campbell,
March 5, 1998. Reported: Park v. Canada (Minister of Citizenship
and Immigration) (1998), 42 Imm.
L.R. (2d) 123 (F.C.T.D.)
- Popic, Bojan v. M.C.I.
(F.C.T.D.,
no. IMM-5727-98), Hansen,
September 14, 2000
- Potter v. Canada (Minister of Employment and Immigration),
[1980] 1 F.C. 609
(C.A.)
- R. v. Wardley (1978), 43 C.C.C. (2d) 345 (Ont.
C.A.)
- Ramirez v. Canada (Minister of Employment and Immigration),
[1992] 2 F.C. 306
(C.A.)
- Reyes v. Canada (Minister of Employment and Immigration),
[1987] 1 Imm.
L.R. (2d) 148 (IAB)
- Robertson v. Canada (Minister of Employment and Immigration),
[1979] 1 F.C. 197
(C.A.)
- Rudolph v. Canada (Minister of Employment and Immigration),
[1992] 2 F.C. 653
(C.A.)
- Ruparel v. Canada (Minister of Employment and Immigration),
[1990] 3 F.C. 615
(T.D.)
- Saini: M.C.I.
v. Saini, Parminder Singh (F.C.A.,
no. A-121-00), Linden, Sharlow,
Malone, October 19, 2001
- Singh, Ajit v. M.E.I.
(F.C.A.,
no. A-258-84), Heald, Hyde,
Lalande, September 21, 1984
- Singh: M.C.I.
and S.G.C. v. Singh, Iqbal (F.C.T.D.,
no. DES-1-98), Rothstein,
August 11, 1998. Reported: Canada (Minister of Citizenship and Immigration)
v. Singh (1998), 44 Imm.
L.R. (2d) 309 (F.C.T.D.)
- Singleton, George Bruce v. M.E.I.
(F.C.A.,
no. A-813-83), Thurlow, Mahoney,
Stone, November 7, 1983
- Sivakumar v. Canada (Minister of Employment and Immigration),
[1994] 1 F.C. 433
(C.A.)
- Smalling: Canada (Minister of Employment and Immigration) v. Smalling,
[1992] 2 F.C. 237
(C.A.)
- Smith v. Canada (Minister of Citizenship and Immigration),
[1998] 3 F.C. 144
(T.D.)
- Soriano, Teodore v. M.C.I.
(F.C.T.D.,
no. IMM-2335-99), MacKay,
August 29, 2000
- Steward v. Canada (Minister of Employment and Immigration),
[1988] 3 F.C. 487
(C.A.)
- Suresh, Manickavasagam v. M.C.I.
(F.C.T.D.,
no. DES-3-95), Teitelbaum,
November 14, 1997. Reported: Re Suresh (1997), 40 Imm.
L.R. (2d) 247 (T.D.)
- Taubler v. Canada (Minister of Employment and Immigration),
[1981] 1 F.C. 620
(C.A.)
- Therrien (Re), [2001] S.C.R.
35
- Varela: M.C.I.
v. Varela, Jamie Carrasco (F.C.T.D.,
no. IMM-2807-00), Gibson,
February 14, 2002
- Vijayakumar, Nagaluxmy v. M.C.I.
(F.C.T.D.,
no. IMM-4071-94), Jerome,
April 16, 1996. Reported: Vijayakumar v. Canada (Minister of Citizenship
and Immigration) (1996), 33 Imm.
L.R. (2d) 176 (F.C.T.D.)
- Ward, Patrick Francis v. M.C.I.
(F.C.T.D.,
no. IMM-504-96), Heald, December
19, 1996. Reported: Ward v. Canada (Minister of Citizenship and
Immigration) (1996), 37 Imm.
L.R. (2d) 102 (F.C.T.D.)
- Weso, Mohamed Omar v. M.C.I.
(F.C.T.D.,
no. IMM-516-97), Cullen,
April 21, 1998
- Wong, Lung Suen v. M.E.I.
(F.C.T.D.,
no. IMM-2882-94), Gibson,
September 29, 1995. Reported: Wong v. Canada (Minister of Employment
and Immigration) (1989), 8 Imm.
L.R. (2d) 16 (F.C.A.)
- Wong, Yuk Ying v. M.C.I.
(F.C.T.D.,
no. IMM-4464-98), Campbell,
February 22, 2000
- Yuen, Kwong Yau v. M.C.I.
(F.C.A.,
no. A-152-99), Létourneau,
Sexton, Malone, December 21, 2000
- Yuen, Kwong Yau v. M.C.I.
(F.C.T.D.,
no. IMM-5272-97), Cullen,
February 2, 1999. Reported: Yuen v. Canada (Minister of Citizenship
and Immigration) (1999), 48 Imm.
L.R. (2d) 24 (F.C.T.D.)
- M.C.I.
v. Varela, Jamie Carrasco (F.C.T.D.,
no. IMM-2807-00), Gibson,
February 14, 2002.
- In Canada (Minister of Employment and Immigration)
v. Burgon, [1991] 3 F.C.
44 (C.A.), Mahoney
J.A. stated, at 50:
On the other side of the coin, as we well know, some countries
severely, even savagely, punish offences which we regard as relatively
minor. Yet Parliament has made clear that it is the Canadian, not
the foreign, standard of the seriousness of crimes, as measured in
terms of potential length of sentence, that governs admissibility
to Canada. The policy basis for exclusion under paragraph 19(1)(c)
must surely be the perceived gravity, from a Canadian point of view,
of the offence the person has been found to have committed and not
the actual consequence of that finding as determined under foreign
domestic law.
- Massie, Pia Yona v. M.C.I.
(F.C.T.D.,
no. IMM-6345-98), Pinard,
May 26, 2000.
- Li v. Canada (Minister of Citizenship and
Immigration), [1997] 1 F.C.
235 (C.A.), at
258.
- In Maleki, Mohammed Reza v. M.C.I.
(F.C.T.D.,
no. IMM-570-99), Linden,
July 29, 1999. Reported: Maleki v. Canada (Minister of Citizenship
and Immigration) (1999) 2 Imm.
L.R. (3d) 272 (F.C.T.D.),
the applicant had been convicted of entering Greece illegally. His DROC
refusal letter stated that this offence, if committed in Canada, would
constitute an offence under section 94 of the Immigration Act
and that the applicant would be inadmissible under paragraph 19(2)(a.1).
The text or an adequate description of the relevant Greek statute was
not provided to the immigration officer or to the Court. On the evidence
available, there were no reasonable grounds on which to decide that
there was equivalence in the Canadian and Greek offences.
- M.C.I.
v. Brar, Pinder Singh (F.C.T.D.,
no. IMM-6318-98), Campbell,
November 23, 1999.
- In Masasi, Abdullai Iddi v. M.C.I.
(F.C.T.D.,
no. IMM-1856-97), Cullen,
October 23, 1997. Reported: Masasi v. Canada (Minister of Citizenship
and Immigration) (1997), 40 Imm.
L.R. (2d) 133 (F.C.T.D.),
the Court determined that the adjudicator erred by not addressing the
meaning in Canadian and U.S.
law of the term "bodily harm", which was found to be an essential
element of the offence under consideration (assault). "Clearly,
a mere comparison of the words of the two provisions, without examining
the legal content of those words, is insufficient in determining equivalency
". In Popic, Bojan v. M.C.I.
(F.C.T.D.,
no. IMM-5727-98), Hansen,
September 14, 2000, the Court held that the visa officer erred in importing
into the analysis considerations that are not relevant to a determination
of the element of "false pretences" or "fraud",
namely that the applicant, like all residents of Germany, knows they
must pay for public transit and that being caught three times is quite
exceptional.
- In Li, supra, footnote 4, the appellant
had argued that because the Hong Kong ordinance placed the burden of
proving the defence of lawful authority or reasonable excuse on the
accused, it offends subsection 11(d) of the Canadian Charter of
Rights and Freedoms (viz. the presumption of innocence). Mr. Justice
Strayer said, at 256:
What must be compared are the factual and legal criteria
for establishing the offence both abroad and in Canada. It is not
necessary to compare the adjectival law by which a conviction might
or might not be entered in each country
. The Act does not contemplate
a retrial of the case applying Canadian rules of evidence. Nor does
it contemplate an examination of the validity of the conviction abroad.
This is so whether the Canadian standards of procedure or evidence
sought to be applied are based on the Charter, statute, or common
law
. While proceedings in Canada under the Immigration Act
must no doubt be conducted in accordance with the Charter, it is not
inappropriate for Canadian tribunals to recognize and accept the validity
of foreign legal systems without measuring them against the Charter.
The Court then went on to conclude, at 258, that
in determining the equivalence of offences for the
purposes of subparagraph 19(2)(a.1)(i) an adjudicator should not compare
the procedural or evidentiary rules of the two jurisdictions, even
if the Canadian rules are mandated by the Charter.
- In Lam, Chun Wai v. M.E.I.
(F.C.T.D.,
no. IMM-4901-94), Tremblay-Lamer,
November 14, 1995, the Court held that since the scope of the crime
of extortion in Canada was wider than the Hong Kong provision dealing
with blackmail, it was not necessary for the adjudicator to go beyond
the wording of the statute in order to determine whether the essential
elements of the offence in Canada had been proven in the foreign proceedings.
- In Brannson v. Canada (Minister of Employment
and Immigration, [1981] 2 F.C.
141 (C.A.), the
proposed Canadian equivalent related to mailing letters and circulars,
whereas the U.S.
offence was broader and referred to mailing any matter or thing whatever
(for the purpose of executing a scheme to defraud). In other words,
a person could be convicted of the U.S.
offence in question even if the materials transmitted or delivered were
neither letters nor circulars. No evidence was introduced at the inquiry,
however, as to what the applicant had mailed.
In Hill, Errol Stanley v. M.E.I.
(F.C.A.,
no. A-514-86), Hugessen,
Urie, MacGuigan, January 29, 1987. Reported: Hill v. Canada (Minister
of Employment and Immigration) (1987), 1 Imm.
L.R. (2d) 1 (F.C.A.),
the definition of theft as it pertains in the Texas statute was not
produced before the adjudicator; the Court could not conclude that
Texas law included the important additional requirement that the taking
be "without colour of right", which was an essential ingredient
of the offence of theft in Canada. Therefore, equivalency had not
been established. The Court also noted that, although it might have
been possible to adduce evidence confirming that the applicant did
not have a factual foundation for a colour of right defence, there
was no evidence adduced before the adjudicator to allow for this analysis
and hence there could be no finding of equivalency.
In Steward v. Canada (Minister of Employment and Immigration),
[1988] 3 F.C. 487
(C.A.), the Oklahoma
offence of first-degree arson did not make reference to a "colour
of right" defence and it was found to be wider in scope than
subsection 389(1) of the Criminal Code, as it encompassed
the burning of property through negligence or inadvertence, which
is covered by section 392 of the Code. On the meagre facts
established by the record, however, it was impossible to determine
which Canadian provision was the applicable one, and thus equivalency
had not been established. See also Lei, Alberto v. S.G.C.
(F.C.T.D.,
no. IMM-5249-93), Nadon,
February 21, 1994. Reported: Lei v. Canada (Solicitor General)
(1994), 24 Imm.
L.R. (2d) 82 (F.C.T.D.),
where, since the U.S.
offence of reckless driving was wider than the Canadian offence, without
evidence as to the circumstances which resulted in the charge in the
state of Washington, no finding of equivalency could be made.
In Li, supra, footnote 4, the Court determined that the
Canadian offence under paragraph 426(1)(a) of the Criminal Code
was much narrower than section 9 of the Hong Kong Prevention of
Bribery Ordinance in view of the rather restrictive interpretation
given to "corruptly" by the Supreme Court of Canada. While
it may have been possible to demonstrate through particulars of the
Hong Kong charges, or from the evidence from the trial there, that
in fact what the appellant did would also constitute an offence within
the Canadian provision, such evidence was not led before the adjudicator.
- Li, supra, footnote 4.
- Soriano, Teodore v. M.C.I.
(F.C.T.D.,
no. IMM-2335-99), MacKay,
August 29, 2000.
- Hill, supra, footnote 10, where the
Court recognized the possibility of establishing equivalency either
by analyzing the essential elements or, in the alternative, by adducing
evidence as to the factual foundation for the conviction.
- See, for example, Moore, Terry Joseph v.
M.E.I.
(F.C.A.,
no. A-501-88), Heald, Hugessen,
Desjardins, January 31, 1989, where there was no evidence as to the
relevant wording of the U.S.
statute and no direct evidence or material from which it could be inferred
that the applicant knew that the cheque in his possession had been stolen
from the mail. The Court held that the decision in Taubler v. Canada
(Minister of Employment and Immigration), [1981] 1 F.C.
620 (C.A.) did
not support the proposition that the element of specific knowledge required
by paragraph 314(1)(b) of the Criminal Code can be presumed
in the absence of any evidence whatsoever. (In Taubler, the
Court had held that, in the absence of evidence to the contrary, it
was presumed that the Austrian law of misappropriation involved the
element of mens rea and that a conviction under that law indicated
that a finding of guilty intent had been made.) See also Anderson
v. Canada (Minister of Employment and Immigration), [1981] 2 F.C.
30 (C.A.), where
it was impossible, based on the scant evidence presented, to define
the U.S. offence
(grand larceny or attempted grand larceny in the third degree) with
any precision and thus determine equivalency.
- This approach was taken by the adjudicator in
M.C.I.
v. Legault, Alexander Henri (F.C.A.,
no. A-47-95), Marceau, MacGuigan,
Desjardins, October 1, 1997. Reported: Canada (Minister of Citizenship
and Immigration) v. Legault (1997), 42 Imm.
L.R. (2d) 192 (F.C.A.),
where the Court set out the adjudicator's analysis without considering
whether it was the correct interpretation of the Immigration Act.
Leave to appeal to the Supreme Court of Canada was refused March 12,
1998.
- This exception was referred to in Button
v. Canada (Minister of Manpower and Immigration), [1975] F.C.
277 (C.A.), at
284, and in Brannson, supra, footnote 10, at 144. In Button,
the Court stated: "
in our view, there can be no presumption
that the law of a foreign country coincides with a Canadian statute
creating a statutory offence, except where the offence falls within
one of the traditional offences commonly referred to as malum in
se. " This principle was applied by the Federal Court in Clarke,
Derek v. M.E.I.
(F.C.A.,
no A-588-84), Thurlow, Hugessen, Cowan, October 31, 1984 in relation
to assault and robbery. It was also applied by the adjudicator in Dayan
v. Canada (Minister of Employment and Immigration), [1987] 2 F.C.
569 (C.A.), where
no evidence was tendered of the criminal statutes of Israel. The adjudicator
determined that the applicant had been convicted in Israel of robbery
and that robbery is basically theft with violence and fell within the
malum in se exception. The Court, at 576-577, endorsed a more
sophisticated analysis:
In this case, there was evidence
that the applicant
had been convicted in Israel of either or both of the offences of
armed robbery and of robbery
. at least in common law jurisdictions,
they are crimes. We were informed that Israel is a country the system
of justice of which is based on the common law
The essence
of the offence of robbery at common law was stealing whether or not
such stealing was accompanied by violence, threats of violence or
the use of a weapon in its commission. It is a crime because it is
an offence which is contrary to society's norms as is reflected in
the common law. A statute may codify it simply as such or it may,
in the codification, include other ingredients requiring proof before
a conviction can be obtained. Theft as described in paragraph 283(1)(a)
of the Code, is an example of a codification which includes
the ingredients requiring proof of taking "fraudulently and without
colour of right"
.
We do know
that the crime of robbery at common law has an essential
ingredient "stealing" which the specific statute in Canada,
section 302 of the Code, also has as its essential ingredient.
By definition (section 2 of the Code) "steal" means
to commit theft. Therefore, by virtue of section 283, the taking must
be fraudulent and without colour of right. The transcripts of evidence
in the record in this case establish beyond doubt
that the
applicant was a party to a theft of money to which none of the participants
had any colour of right and the stealing of which was unlawful as
the list of criminal convictions discloses. In all the circumstances,
particularly since a weapon was used, it is hard to conceive that
a plea of colour of right could succeed. Having accepted all of the
evidence including the fact that the applicant had been convicted
of robbery in Israel and that a weapon had been used in the commission
of the offence, it follows that the Adjudicator was entitled to conclude
that he had been convicted of an offence punishable under section
302 of the Code.
However, in Hill, supra, footnote 10, the Court stated,
at 5: "Theft, however, is an offence whose essential elements
are not self-evident."
- Dayan, supra, footnote 16, at 578.
- Canada (Attorney General and Minister of
Manpower and Immigration) v. Jolly, [1975] F.C.
216 (C.A.), at
226, 228-29.
- Ramirez v. Canada (Minister of Employment
and Immigration), [1992] 2 F.C.
306 (C.A.), at
314.
- Halm v. Canada (Minister of Employment and
Immigration), [1995] 2 F.C.
331 (T.D.), at 346.
- Legault, Alexander Henri v. S.S.C.
(F.C.T.D.,
no. IMM-7485-93), McGillis,
January 17, 1995. Reported: Legault v. Canada (Secretary of State)
(1995), 26 Imm.
L.R. (2d) 255 (F.C.T.D.).
- Kiani, Raja Ishtiaq Asghar v. M.C.I.
(F.C.T.D.,
no. IMM-3433-94), Gibson,
May 31, 1995. Reported: Kiani v. Canada (Minister of Citizenship
and Immigration) (1995), 31 Imm.
L.R. (2d) 269 (F.C.T.D.),
at 273.
- Chiau v. Canada (Minister of Citizenship
and Immigration), [1998] 2 F.C.
642 (T.D.), at 658. The Court of Appeal approved of this formulation
in Chiau v. Canada (Minister of Citizenship and Immigration),
[2001] 2 F.C. 297
(C.A.), at 320.
These cases mirror the Court of Appeal's holding with respect to the
standard applicable in Article 1F of the Convention relating to the
Status of Refugees, which refers to "serious reasons for considering".
In Sivakumar v. Canada (Minister of Employment and Immigration),
[1994] 1 F.C. 433
(C.A.), at 445:
"Both of these standards [i.e., "serious reasons for considering"
and "reasonable grounds to believe"] require something more
than suspicion or conjecture, but something less than proof on a balance
of probabilities."
- Rudolph v. Canada (Minister of Employment
and Immigration), [1992] 2 F.C.
653 (C.A.), at
664.
- Singleton, George Bruce v. M.E.I.
(F.C.A.,
no. A-813-83), Thurlow, Mahoney,
Stone, November 7, 1983.
- Cameron, Beverley Mae v. M.E.I.
(IAB V83-6504),
D. Davey, Hlady, Voorhees, September 11, 1984, at 2.
- Davis, Kent Douglas v. M.E.I.
(F.C.A.,
no. A-81-86), Urie, Hugessen,
MacGuigan, June 19, 1986.
- Choi, Min Su v. M.C.I.
(F.C.T.D.,
no. IMM-975-99), Denault,
May 8, 2000.
- Legault, supra, footnote 15, overturning
Legault, supra, footnote 21. The Trial Division had reasoned
that an indictment performs the same function in the United States as
it does in Canada in that it is the formal legal document containing
the alleged indictable criminal offences upon which the accused will
be tried. Thus, it did not constitute evidence and may not be used as
evidence by the trier of fact in the criminal proceedings.
- Kiani, supra, footnote 22.
- Kiani, Raja Ishtiaq Asghar v. M.C.I.
(F.C.A.,
no. A-372-95), Isaac, Linden,
Sexton, October 22, 1998.
- Ali, Abdi Rahim v. M.C.I.
(F.C.T.D.,
no. IMM-2993-99), Gibson,
July 20, 2000.
- Drake, Michael Lawrence v. M.C.I.
(F.C.T.D.,
no. IMM-4050-98), Tremblay-Lamer,
March 11, 1999. Reported: Drake v. Canada (Minister of Citizenship
and Immigration) (1999), 49 Imm.
L.R. (2d) 218 (F.C.T.D.).
- Bertold, Eberhard v. M.C.I.
(F.C.T.D.,
no. IMM-5228-98), Muldoon,
September 29, 1999. Reported: Bertold v. Canada (Minister of Minister
of Citizenship and Immigration) (1999), 2 Imm.
L.R. (3d) 46 (F.C.T.D.).
- Robertson v. Canada (Minister of Employment
and Immigration), [1979] 1 F.C.
197 (C.A.), at
198.
- Weso, Mohamed Omar v. M.C.I.
(F.C.T.D.,
no. IMM-516-97), Cullen,
April 21, 1998.
- Ward, Patrick Francis v. M.C.I.
(F.C.T.D.,
no. IMM-504-96), Heald, December
19, 1996. Reported: Ward v. Canada (Minister of Citizenship and
Immigration) (1996), 37 Imm.
L.R. (2d) 102 (F.C.T.D.).
In the related Immigration Appeal Board decision of Reyes v. Canada
(Minister of Employment and Immigration) (1987), 1 Imm.
L.R. (2d) 148 (IAB),
there was the added complication that the foreign offence was not equivalent
to an indictable offence in Canada at the time the application for permanent
residence was filed, but became one prior to the conclusion of the processing
of the application. The Board held that such an offence could not bring
the applicant within the ambit of section 19 and that the visa officer
could not apply amendments to the Criminal Code enacted after
the filing of the application to the detriment of the applicant.
- Anderson v. Canada (Minister of Employment
and Immigration), [1981] 2 F.C.
30 (C.A.), at 32.
- Eggen v. Canada (Minister of Manpower and
Immigration), [1976] 1 F.C.
643 (C.A.), at
645. See also Canada (Minister of Manpower and Immigration) v. Brooks,
[1974] S.C.R.
850, at 854-55.
- Singh, Ajit v. M.E.I.
(F.C.A.,
no. A-258-84), Heald, Hyde,
Lalande, September 21, 1984.
- Clarke, supra, footnote 16.
- Lavi, Diane v. M.E.I.
(IAB T-83-9929),
Falardeau-Ramsay, Teitelbaum, Tisshaw, April 24, 1985, at 2.
- Drake, supra, footnote 33.
- Chan v. Canada (Minister of Citizenship and
Immigration), [1996] 3 F.C.
349 (T.D.).
- Park, Jong In v. M.C.I.
(F.C.T.D.,
no. IMM-3327-97), Campbell,
March 5, 1998. Reported: Park v. Canada (Minister of Citizenship
and Immigration) (1998), 42 Imm.
L.R. (2d) 123 (F.C.T.D.).
- R. v. Wardley (1978), 43 C.C.C. (2d)
345 (Ont. C.A.);
Canada (Minister of Employment and Immigration) v. Smalling,
[1992] 2 F.C. 237
(C.A.).
- Lee v. Canada (Minister of Employment and
Immigration), [1980] 1 F.C.
374 (C.A.).
- Prior to February 1, 1993, a person convicted
of a hybrid offence which had been prosecuted summarily was not criminally
inadmissible to Canada. After that date, paragraph 19(2)(a) of the Immigration
Act was amended so as to include persons convicted of a hybrid
offence, even where the matter had proceeded by way of summary conviction.
See Kanes, Chellapah v. M.E.I.
(F.C.T.D.,
no. IMM-1918-93), Cullen,
December 14, 1993. Reported: Kanes v. Canada (Minister of Employment
and Immigration) (1993), 22 Imm.
L.R. (2d) 223 (F.C.T.D.),
at 230; and Ladbon, Kamran Modaressi v. M.C.I.
(F.C.T.D.,
no. IMM-1540-96), McKeown,
May 24, 1996. In Ngalla, Binta Mamboh v. M.C.I.
(F.C.T.D.,
no. IMM-4785-96), Nadon,
March 13, 1998. Reported: Ngalla v. Canada (Minister of Citizenship
and Immigration) (1998), 44 Imm.
L.R. (2d) 79 (F.C.T.D.),
the Court rejected the argument that paragraph 19(2)(a) was contrary
to paragraph 34(1)(c) of the Interpretation Act or subsection
11(h) of the Charter; the offence is not a summary conviction offence,
but a hybrid offence which could have been proceeded with by way of
indictment.
The wording of paragraph 19(2)(a) has been further amended effective
August 1, 1996 by removing the words "by way of indictment".
Arguably, since the French version was not altered at that time and
retains the words "par mise en accusation", the scope of
that provision still extends only to those hybrid offences that may
be punishable by way of indictment by a maximum term of imprisonment
of less than 10 years.
- It is recognized that this interpretation gives
rise to the following incongruity: A hybrid offence that carries a possible
term of imprisonment of less than 10 years and is dealt with summarily
would attract the application of paragraph 19(2)(a), whereas a more
serious hybrid offence which carries a possible term of 10 years or
more and is dealt with summarily would not attract the application
of paragraph 19(1)(c). Instead, it might attract the application of
paragraph 19(2)(b) provided that the person has been convicted of at
least two summary conviction offences not arising out of a single occurrence.
- Potter v. Canada (Minister of Employment
and Immigration), [1980] 1 F.C.
609 (C.A.). The
Court stated, at 614-615:
In my view it is at any rate irrelevant whether the applicant
was convicted on indictment in England. The relevant question for
the Adjudicator was whether the applicant, had the offence been committed
in Canada, could have been convicted of an offence in respect of which
he might have been proceeded against by way of indictment in Canada,
and whether, if convicted in Canada, he might have been imprisoned
for a maximum term of less than ten years.
- The analysis enunciated in Potter, supra,
footnote 50, was followed in Wong, Lung Suen v. M.E.I.
(F.C.A.,
no. A-645-88), Heald, Mahoney,
Stone, April 25, 1989. Reported: Wong v. Canada (Minister of Employment
and Immigration) (1989), 8 Imm.
L.R. (2d) 16 (F.C.A.);
and Ruparel v. Canada (Minister of Employment and Immigration),
[1990] 3 F.C. 615
(T.D.).
- Libby, Tena Dianna v. M.E.I.
(F.C.A.,
no. A-1013-87), Urie, Rouleau,
McQuaid, March 18, 1988. Reported: Libby v. Canada (Minister of
Employment and Immigration) (1988), 50 D.L.R. (4th) 573 (F.C.A.).
- Alouache, Samir v. M.C.I.
(F.C.T.D.,
no. IMM-3397-94), Gibson,
October 11, 1995. Reported: Alouache v. Canada (Minister of Citizenship
and Immigration) (1995), 31 Imm.
L.R. (2d) 68 (F.C.T.D.).
- Burgon, supra, footnote 2, at 57-58.
- Brannson, supra, footnote 10, at 145;
Li, supra, footnote 4, at 256.
- Ward, supra, footnote 37, at 7. Thus
the Court rejected the applicant's argument that he had been coerced
into pleading guilty in order to protect his wife and children.
- Ward, ibid., at 10. The Court held:
"It has never been the case in Canadian criminal law that, because
someone had a particular motive in committing a crime, he or she lacked
the intention to commit the act. The applicant in the case at bar, while
he may have been motivated to take hostages for political reasons, nonetheless
still had the intention to take hostages."
- Arnow, Leon Maurice v. M.E.I.
(F.C.A.,
no. A-599-80), Heald, Ryan,
MacKay, September 28, 1981; appeal to Supreme Court of Canada refused,
[1982] 2 S.C.R.
603.
- In Halm v. Canada (Minister of Employment
and Immigration), [1995] 2 F.C.
331 (T.D.), the applicant had been convicted in New York State of sodomy.
The court held that the Canadian equivalent-section 159 of the Criminal
Code (prohibiting anal intercourse with persons under 18)-violated
sections 7 and 15 of the Charter.
- Halm v. Canada (Minister of Employment and
Immigration), [1996] 1 F.C.
547 (T.D.), at 580-582.
- In Vijayakumar, Nagaluxmy v. M.C.I.
(F.C.T.D.,
no. IMM-4071-94), Jerome,
April 16, 1996. Reported: Vijayakumar v. Canada (Minister of Citizenship
and Immigration) (1996), 33 Imm.
L.R. (2d) 176 (F.C.T.D.),
the Court held that the applicant's (sponsored) husband used a false
passport to get out of Sri Lanka unharmed, not to defraud immigration
officials; moreover, paragraph 95.1(1)(d) of the Immigration Act
prohibits the prosecution (pending the disposition of the claims) of
Convention refugee claimants who present false documents upon arrival
in Canada. Therefore, the husband had not committed an offence as contemplated
by subparagraph 19.1(c.1)(ii). See also Jeganathan, Vathsala v.
M.C.I.
(IAD
T95-06869), D'Ignazio, December 5, 1997.
- See Lew v. Canada (Minister of Manpower and
Immigration), [1974] 2 F.C.
700 (C.A.), where
the appellant successfully appealed the conviction, and was granted
an absolute discharge after he had been ordered deported, but before
the matter was determined on appeal to the Immigration Appeal Board.
The Court held that the Board ought to have considered the appeal in
light of the circumstances existing at the time of the appeal (i.e.,
the absolute discharge). In Kalicharan v. Canada (Minister of Manpower
and Immigration), [1976] 2 F.C.
123 (T.D.), the Court held, at 125, that a person convicted at trial
is a convicted person notwithstanding that he may have an unexhausted
right of appeal, but when a court of appeal substitutes a conditional
discharge for a sentence imposed by a trial court, that means that the
conviction is deemed never to have been passed and the basis for making
the removal order not only no longer exists in fact; it is deemed, in
law, not to have existed at all.
- M.C.I.
v. Saini, Parminder Singh (F.C.A.,
no. A-121-00), Linden, Sharlow,
Malone, October 19, 2001
- M.E.I.
v. Fenner, Charles David (IAB
V81-6126), Campbell, Tremblay, Hlady, December 11, 1981.
- Burgon, supra, footnote 2, at 61-62,
63.
- Subsection 13(1) of the U.K. Powers of Criminal
Courts Act, 1973 stipulates:
a conviction of an offence for which an order is
made under this Part of this Act placing the offender on probation
discharging him absolutely or conditionally shall be deemed not to
be a conviction for any purpose other than the purposes of the proceedings
in which the order is made and of any subsequent proceedings which
may be taken against the offender under the preceding provisions of
this Act.
- Barnett, John v. M.C.I.
(F.C.T.D.,
no. IMM-4280-94), Jerome,
March 22, 1996. Reported: Barnett v. Canada (Minister of Citizenship
and Immigration) (1996), 33 Imm.
L.R. (2d) 1 (F.C.T.D.).
- Lui, Wing Hon v. M.C.I.
(F.C.T.D.,
no. IMM-2783-95), Rothstein,
July 29, 1997. Reported: Lui v. Canada (Minister of Citizenship
and Immigration) (1997), 39 Imm.
L.R. (2d) 60 (F.C.T.D.),
at 63-64.
- Saini, supra, footnote 63.
- Therrien (Re), [2001] S.C.R.
35.
- Smith v. Canada (Minister of Citizenship
and Immigration), [1998] 3 F.C.
144 (T.D.).
- M.E.I.
v.Gill, Hardeep Kaur (F.C.A.,
no. A219-90), Heald, Hugessen,
Stone, December 31, 1991. Reported: Canada (Minister of Employment
and Immigration) v. Gill (1991), 137 N.R.
373 (F.C.A.).
- In this regard, the court followed a previous
decision in Mohammad v. Canada (Minister of Employment and Immigration),
[1989] 2 F.C. 363
(C.A.), which held,
at 371, that it is not a precondition to the operation of paragraph
19(1)(c) that the Governor in Council shall have considered the question
of rehabilitation and be not satisfied that the applicant has brought
himself within that exception; the visa officer need only be satisfied
that no decision of satisfaction by the Governor in Council has been
made. Thus an immigration officer in issuing a subsection 27(1) report
and a direction for inquiry under subsection 27(3) of the Act
was not required to possess information as to whether the appellant
had satisfied the Governor in Council as to his rehabilitation.
- See Dance, Neal John v. M.C.I.
(F.C.T.D.,
no. IMM-366-95), MacKay,
September 21, 1995, at 6, 8:
In my opinion, under s-s. 8(1) the onus rests on the applicant
at all times to establish that he has a right to be admitted to Canada,
even, as in this case, where he has done all that could be expected
of him to obtain the necessary approval of his rehabilitation, without
any success because of apparent delays on the part of the respondent's
department and its processes.
there was no evidence before him [the adjudicator] that the
Minister had in fact positively approved, that is, that the Minister
had been satisfied, that the applicant had rehabilitated himself.
The Court urged the Minister, however, to complete the processing
of the application for permanent residence and the request for Ministerial
approval of rehabilitation before executing the deportation order.
- Crawford v. Canada (Minister of Employment
and Immigration) (1987), 3 Imm.
L.R. (2d) 12 (IAB).
- Wong, Lung Suen v. M.E.I.
(F.C.T.D.,
no. IMM-2882-94), Gibson,
September 29, 1995. Reported: Wong v. Canada (Minister of Citizenship
and Immigration) (1995), 36 Imm.
L.R. (2d) 168 (F.C.T.D.).
- Lakhani, Salim D. v. M.C.I.
(F.C.T.D.,
no. IMM-1047-96), Heald,
October 7, 1996. Reported: Lakhani v. Canada (Minister of Citizenship
and Immigration) (1996), 36 Imm.
L.R. (2d) 47 (F.C.T.D.).
- Leung, Chi Wah Anthony v. M.C.I.
(F.C.T.D.,
no. IMM-1061-97), Gibson,
April 20, 1998. Reported: Leung v. Canada (Minister of Citizenship
and Immigration) (1998), 45 Imm.
L.R. (2d) 242 (F.C.T.D.).
- Leung, Chi Wah Anthony v. M.C.I.
(F.C.A.,
no. A-283-98), Stone, Evans,
Malone, May 3, 2000.
- Kan, Chow Cheung v. M.C.I.
(F.C.T.D.,
no. IMM-728-00), Rouleau,
November 21, 2000.
- Kanes, supra, footnote 48, at 229. See
also, generally, footnote 48.
- Cortez, Rigoberto Corea v. S.S.C.
(F.C.T.D.,
no. IMM-2548-93), Rouleau,
January 26, 1994. Reported: Cortez v. Canada (Secretary of State)
(1994), 23 Imm.
L.R. (2d) 270 (F.C.T.D.),
at 276.
- Bubla v. Canada (Solicitor General),
[1995] 2 F.C. 680
(C.A.).
- Engel, Hans Gunther v. S.S.C.
(F.C.T.D.,
no. IMM-2634-94), Richard,
April 19, 1995. Reported: Engel v. Canada (Secretary of State)
(1995), 29 Imm.
L.R. (2d) 234 (F.C.T.D.),
at 236, n. 1.
- Chan, supra, footnote 44.
- Chan, ibid., at 370-371.
- Chiau (T.D.), supra, footnote
23.
- Jolly, supra, footnote 18.
- Chan, supra, footnote 44.
- Chiau (C.A.),
supra, footnote 23, at 319-20. Leave to appeal to the Supreme
Court of Canada was refused August 16, 2001 (S.C.C.
no. 28418). For additional
cases dealing with the term "membership" in the context of
terrorist organizations see Re Suresh, Manickavasagam v. M.C.I.
(F.C.T.D.,
no. DES-3-95), Teitelbaum,
November 14, 1997. Reported: Re Suresh (1997), 40 Imm.
L.R. (2d) 247 (T.D.); M.C.I.
and S.G.C. v. Singh, Iqbal (F.C.T.D.,
no. DES-1-98), Rothstein,
August 11, 1998. Reported: Canada (Minister of Citizenship and Immigration)
v. Singh (1998), 44 Imm.
L.R. (2d) 309 (F.C.T.D.);
M.C.I.
v. Owens, Kathleen (F.C.T.D.,
no. IMM-5668-99), Dawson,
October 11, 2000. Reported: Owens v. Canada (Minister of Citizenship
and Immigration) (2000), 9 Imm.
L.R. (3d) 101 (F.C.T.D.).
- Yuen, Kwong Yau v. M.C.I.
(F.C.T.D.,
no. IMM-5272-97), Cullen,
February 2, 1999. Reported: Yuen v. Canada (Minister of Citizenship
and Immigration) (1999), 48 Imm.
L.R. (2d) 24 (F.C.T.D.).
- Yuen, Kwong Yau v. M.C.I.
(F.C.A.,
no. A-152-99), Létourneau,
Sexton, Malone, December 21, 2000. In Chong, Chor Shan v. M.C.I.
(F.C.T.D.,
no. IMM-4038-00), McKeown,
December 4, 2001, the Court held that triad organizations have a single
brutal purpose: the commission of crime for financial gain. "There
is no requirement that the applicant be linked to specific crimes as
the actual perpetrator."
- Ali, Bahig Mohamed Skaik v. M.C.I.
(F.C.T.D.,
no. IMM-613-97), Rothstein,
November 2, 1998.
- Varela, supra, footnote 1.
- Rudolph, supra, footnote 24, at 657-58.
The applicant employed foreign prisoners in a Nazi concentration camp
in the production of munitions during 1943-45; these munitions were
intended for use against the civilian populations of the Allied countries.
- Caballero, Florencio v. M.C.I.
(F.C.T.D.,
no. IMM-272-96), Heald, November
13, 1996, at 4-5, 9-13. This case dealt with a member of a military
unit in Honduras which kidnapped, tortured and murdered people.
- Mugesera v. Canada (Minister of Citizenship
and Immigration), [2001] 4 F.C.
421 (T.D.).
- Varela, supra, footnote 1. A different
approach was taken in Figueroa, Rony Danilo v. M.C.I.
(F.C.T.D.,
no. IMM-1264-99), Pinard,
February 25, 2000, a case involving a determination by an immigration
officer to refuse to grant landing under subsection 46.04(3) of
the Act because one of the persons was described in paragraph 19(1)(j).
According to the Court, paragraph 19(1)(j) provides for a test with
two conditions: a person belongs to an inadmissible class if there are
reasonable grounds to believe that he or she has committed acts that
constitute a crime against humanity within the meaning of subsection
7(3.76) of the Criminal Code, and if these acts would constitute
an offence in Canada. The Court found that the exclusion of a refugee
under Article 1F(a) shows that the first condition of the test in paragraph
19(1)(j) of the Act has been met. In upholding the decision of the Trial
Division, the Court of Appeal did not comment directly on this part
of the Trial Division's reasons. See Figueroa, Rony Danilo v. M.C.I.
(F.C.A.,
no. A-138-00), Desjardins,
Décary, Noël, April 6, 2001. The Trial Division's decision
in Figueroa was distinguished in Varela.
- Potter, supra, footnote 50, at 615.
- Hall, Othniel Anthony v. M.E.I.
(F.C.A.,
no. A-1005-91), Stone, Létourneau,
Robertson, July 6, 1994. Reported: Hall v. Canada (Minister of Employment
and Immigration) (1994), 25 Imm.
L.R. (2d) 1 (F.C.A.),
at 3-4.
- Wong, Yuk Ying v. M.C.I.
(F.C.T.D.,
no. IMM-4464-98), Campbell,
February 22, 2000.
|