Magtibay v. Canada (Minister of Citizenship and Immigration), 2005 FC 397

Date: 20050324

Docket: IMM-2701-04

Citation: 2005 FC 397

Ottawa, Ontario, March 24, 2005

Present:         The Honourable Mr. Justice Blais                                 

BETWEEN:              

                                                  BRIGIDA CHERLY MAGTIBAY

                                                                                                                                          Applicant

                                                                           and

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                     Respondent

                                           REASONS FOR ORDER AND ORDER

[1]                This is an application for judicial review under section 72 of theImmigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act or IRPA) of a decision by an immigration officer, dated March 1, 2004, which determined that Mrs. Brigida Cherly Magtibay (the applicant) was not admissible under the live-in caregiver class as her husband did not meet the admissibility requirements as specified in the Immigration and Refugee Protection Regulations, SOR/2002-227 (the Regulations).

FACTS

[2]                The applicant and her husband are both citizens of the Philippines. The applicant came to Canada on February 12, 2000, with a work permit issued under the live-in caregiver program. On October 2, 2002, the applicant applied for permanent residence under the live-in caregiver class.

[3]                On January 16, 2003, after an initial review of the file, the applicant met all of the requirements of the first stage. The second stage was a further assessment of admissibility requirements, and included a questionnaire which asked, among many questions, whether or not her or any members of her family have ever been charged for a crime or offence in Canada or any other country, to which the applicant answered no.

[4]                The file was therefore sent for overseas processing of the applicant's dependents. It is at this point, during the month of August 2003, that it was discovered that the applicant's husband was inadmissible under paragraph 36(1)(c) of the Act. A follow-up was done, including a letter to the applicant to allow her to make further submissions.

[5]                On February 29, 2004, an email was received from John Butt, First Secretary, Manila, stating that although the applicant's spouse was acquitted, the court found that the offence had in fact been committed, but since the victim had pardoned her aggressor, no conviction resulted.

[6]                A final overall assessment of the documentation submitted resulted in the application being refused, as the applicant's husband, who is her dependant, was inadmissible to Canada for having committed an act which, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years (see subsection 36(1) and 72(1) of the Regulations).

ISSUE

[7]                Did the immigration officer err in applying paragraph 36(1)(c) of the Act, and determining that the applicant was therefore inadmissible?

ANALYSIS

[8]                I have before me a judicial review of an immigration officer's finding that the applicant was inadmissible to Canada because one of her dependants, her spouse, was inadmissible on grounds of serious criminality, as per section 36(1)(c) of the Act:

[9]                The question put before me is whether the immigration officer erred in determining that, even though the husband received an acquittal, he was nonetheless inadmissible to Canada for having committed an act outside of Canada which, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years.

[10]            It should be made clear that paragraph 36(1)(c) of the Act does not require a conviction for the accused crime, but simply its commission. In contrast, paragraph 36(1)(b) of the Act requires a conviction, not simply its commission. It is therefore clear that Parliament intended to differentiate the two scenarios, and allow for the inadmissibility of a permanent resident or foreign national not only on a conviction, but also on the mere commission of certain acts.

[11]            Therefore, the immigration officer did not need to determine that a conviction had been obtained for a specific act, but simply that it had indeed been committed. Once that has been affirmed, the immigration officer must then determine if that act, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, and that, regardless of whether or not a conviction was obtained.

[12]            Although on its face, an acquittal may seem to indicate the innocence of the accused, it is not indicative of whether or not the act was indeed committed. Just as in the case before me, it is possible for the accused to have committed the crime, but to be found not guilty because of a number of other reasons. Here, although the applicant vehemently submits that her husband was acquitted and therefore innocent, an attentive reading of the decision of the Regional Trial Court of the Phillippines in Lucena City, reveals the reasoning behind the judgment:   

From the evidence adduced by the prosecution, there is no question that on or about the 21st day of September 1981, the accused brought the complainant, Elizabeth delos Santos, who was then under influence of drug administered to her by the accused herein to Fresh Air Hotel and while inside said hotel, had carnal knowledge with said Elizabeth delos Santos.

...

The defence of pardon has, therefore, been successfully proved by the defence. (See pages 20 and 22 of the applicant's record.)

[13]            The reasons for which the applicant's husband was acquitted was the defence of pardon by the victim, which is not found in the Canadian legal system. In cases such as these, one should rely on the Canada (Minister of Citizenship and Immigration) v. Saini, [2002] 1 F.C. 200 (C.A.) decision which discussed the appropriateness of recognizing a foreign pardon in Canada for the purpose of overcoming a foreign criminal conviction:

Thus, it can be seen that the Burgon decision did not decide that foreign law supercedes Canadian immigration law. Canadian authorities are not required to attorn to the laws and policies of other lands in determining whether a person has been "convicted" for the purposes of the Immigration Act. No general principle of absolute recognition of foreign pardons is established by Burgon, which was not even a case about a pardon but instead dealt with a discharge and sentence of probation. However, in assessing whether persons who have been convicted abroad but later pardoned ought to be inadmissible under subparagraph 19(1)(c.1)(I), it is open to our courts to consider the effect of foreign laws in appropriate circumstances. (Canada v. Saini), supra, at paragraph 20)

[14]            I would add to that the comments of Justice Bora Laskin in [1974] S.C.R. 850">Canada (Minister of Manpower and Immigration) v. Brooks, [1974] S.C.R. 850:     

I add here that even if the pardon granted in the Philippines wiped out the bigamy conviction there in fact and in law, this is not controlling in relation to an inquiry about criminal convictions to determine whether immigration to Canada should be permitted.

[15]            As for the standard of review to be applied to such a decision, I would refer to the Canada v. Saini, supra, decision which stated that foreign law is a question of fact, and the immigration officer's analysis must therefore contain a palpable and overriding error to justify this Court's interference.

The first matter to consider is the effect of the foreign pardon in the country where it was granted. Foreign law is a question of fact, which must be proved to the satisfaction of the Court. Judicial findings about foreign law, therefore, have always been considered on appeal as questions of fact (see J.-G. Castel, Canadian Conflict of Laws, 4th ed. (Toronto: Butterworths, 1997), at page 155). Moreover, it is well settled that this Court will only interfere with a finding of fact, including a finding of fact with regard to expert evidence, if there has been a palpable and overriding error (See for example N.V. Bocimar S.A. v. Century Insurance Co. of Canada, [1987] 1 S.C.R. 1247; [1976] 2 S.C.R. 802">Stein et al. v. "Kathy K" et al. (The Ship), [1976] 2 S.C.R. 802.) (Canada v. Saini, supra, at paragraph 26) [my emphasis]

[16]            The Canada v. Saini, supra, decision goes on to state 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 not be a valid reason not to recognize the effect of the foreign law. (See Canada v. Saini, supra, at paragraph 24.)

[17]            In applying the tripartite test, I do not find that the immigration officer erred in determining in concluding that the offence had been committed. As I stated earlier, the inadmissibility of the applicant's spouse did not rest on a conviction, but on the premise that the act in question was actually committed, although pardoned. Were I to accept that the first part of the test had been met, that our legal system was similar and not simply "somewhat similar" as was differentiated in the Canada v. Saini, supra, decision, I would nonetheless find that the second and third parts of the test were not met.

[18]            The content, aim, purpose and effect of the foreign pardon is not similar to that of Canadian law, as there is no possibility for acquittal based solely on a pardon by the victim of the crime. Secondly, I find that in this particular case, there exists many a reason for which not to recognize such a foreign pardon. It is a fundamental tenet of criminal law that the victim of crime is society as a whole, not just the individual victim; once a criminal complaint has been filed, the complainant does not have the possibility of unilaterally deciding to pardon the accused, it is up to the prosecutor, a representative of society as a whole, to decide whether or not to drop the charges. Furthermore, the Canadian system has been designed in such a way as to eliminate pressure on those assaulted from withdrawing charges by bribes, threats, or further assaults.

[19]            Counsel for the applicant suggested that the effect of subsection 36(3)(b) of the Act should be that the immigration officer cannot find the applicant inadmissible where a pardon has been granted.

[20]            However, the pardon referred to in that subsection is a pardon under the Criminal Records Act, which is not the case here; this argument therefore fails.

[21]            In fact, the suggestion that it is possible that the criminal act was not committed given the disposition of the case, should also be rejected. You cannot get it both ways; if there is a pardon, it is because and only because the act was indeed committed, unless it does not make sense, where ever you are in Canada or in a foreign country.

[22]            The Minister had to establish the criminal equivalency, which is paragraph 271(1)(a) of the Criminal Code of Canada, and that the offense was punishable by a term of imprisonment of at least 10 years. These were not contested by the applicant. The Minister also had to determine that the act had indeed been committed abroad. Having reviewed all of the evidence before me, I do not find that the immigration officer made any error in determining that although acquitted, the applicant's husband did indeed commit the act in question, and is therefore inadmissible to Canada on grounds of serious criminality.

[23]            For all of the above mentioned reasons, I find that the Board did not err in determining that the applicant was inadmissible to Canada under section 72 of the Regulations, as her spouse is inadmissible to Canada under section 36 of the Act. I am therefore of the opinion that this judicial review be dismissed.

[24]            Counsel for the applicant suggested a question for certification:

Does subsection 36(3)(b) allow a person acquitted in a foreign country to use the "autrefois acquis" argument regarding inadmissibility?

[25]            I do not think that this question is of general importance, therefore, it will not be certified.

[26]            Counsel for the respondent suggested the following question for certification:

Is s. 36(3)(b) of the IRPA applicable to an inadmissibility determination under s. 36(1)c) of that same IRPA, in circumstances where there is a final determination of acquittal by a foreign Court where i) the foreign legal and judicial system as a whole is not similar to that of Canada; ii) the aim, content and effect of the foreign law is not similar to that of Canadian law; or iii) there is another valid reason not to recognize the effect of the foreign law?                                                                              

[27]            The facts of this case are clear, the legislation applicable is also clear and the jurisprudence has already responded to many of counsel's specific concerns (see Saini, supra, and [1974] S.C.R. 850">Brooks, supra). In my view, this question is not of general importance and will not be certified.

                                                                       ORDER

THIS COURT ORDERS THAT:

- The application for judicial review be dismissed;

- No question of general importance be certified.

                    "Pierre Blais"                

                       J.F.C.

                                                             FEDERAL COURT

                            NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                          IMM-2701-04

STYLE OF CAUSE:                          BRIGIDA CHERLY MAGTIBAY v.

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:         TORONTO

DATE OF HEARING:           Wednesday March 9, 2005

REASONS FOR ORDER AND ORDER : Mr. Justice Blais

DATED:          March 24, 2005

APPEARANCES:

Mr. Jegan N. Mohan                 FOR PLAINTIFF / APPLICANT

Mr. Bernard Assan                    FOR DEFENDANT/ RESPONDENT

SOLICITORS OF RECORD:

Mr. Jegan N. Mohan

Barrister and Solicitor

Scarborough, Ontario                FOR PLAINTIFF/APPLICANT

John H. Sims, Q.C.

Deputy Attorney General of Canada

Department of Justice

Toronto, Ontario                       FOR DEFENDANT/ RESPONDENT