Date: 20110713
Docket: IMM-3127-10
Citation: 2011
FC 881
BETWEEN:
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LUIGI PASCALE
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
& IMMIGRATION and
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
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Respondents
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REASONS FOR JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (the Act) for judicial review of:
·
An Opinion
of the Minister of Citizenship and Immigration made pursuant to subsection
70(5) of the former Immigration Act, RSC 1985, c I-2 (the Immigration
Act, the former Act) on February 22, 1996 (the danger opinion); and
·
A
deportation order issued against the applicant on February 26, 1996 by the
Immigration Division (the first deportation order); and
·
An
inadmissibility report made in April 1997 (the first inadmissibility report);
and
·
A
second inadmissibility report made in December 1998 (the second inadmissibility
report); and
·
A
deportation order issued against the applicant on January 20, 1999 by the
Immigration Division (the second deportation order).
[2]
The applicant requests:
1. An
order quashing the danger opinion;
2. An order
quashing the first and second deportation orders and a writ of prohibition
prohibiting the execution of the order that the applicant be deported;
3. An
order to allow the applicant to appeal to the Immigration Appeal Division (IAD)
de novo based on the circumstances as they exist today;
4. A
declaration that a stay of removal is in force pending the final determination
of the applicant’s appeal to the IAD;
5. A declaration
that the applicant is a permanent resident of Canada; and
6. Costs.
Background
[3]
Luigi
Pascale (the applicant) was born in Italy on March 3, 1959 and became a
permanent resident of Canada at age nine. He has
four Canadian-born children with his ex-wife.
[4]
The
applicant incurred an extensive criminal record in Canada, dating from 1976. His
record includes convictions for dangerous driving, driving with more than the
legal limit of alcohol, theft under $200, break and enter with intent to commit
an indictable offence and driving while disqualified. In addition, in 1993, he
was convicted of assault against his former spouse.
[5]
In
1995, the applicant was convicted of sexual assault, again against his former
spouse. The conviction was upheld in the Alberta Court of Appeal and the
applicant was incarcerated for 20 months pursuant to this conviction.
[6]
On
February 22, 1996, a delegate of the Minister of Citizenship and Immigration
(the Minister) issued a danger opinion against the applicant.
[7]
A
deportation order was also issued against the applicant on February 26, 1996
and the applicant was removed from Canada on June 17, 1996. The applicant was denied the
right to appeal the deportation order to the IAD due to the danger opinion.
[8]
The
applicant re-entered Canada on his Italian passport
in November 1996 without the approval of the Minister pursuant to section 55 of
the Immigration Act. He was subsequently charged with re-entering the
country without permission.
[9]
The
applicant unsuccessfully sought a judicial review of the danger opinion in
November 1997.
[10]
In
April 1997, an immigration officer issued the first inadmissibility report
against the applicant under paragraph 27(2)(h) of the Immigration Act.
[11]
The
second inadmissibility report was issued in December 1998 under paragraph
27(2)(a) by paragraph 19(1)(c) of the Immigration Act.
[12]
A
second deportation order was issued against the applicant on January 20, 1999.
[13]
The
applicant’s former spouse issued a statutory declaration in June and September
1999 recanting her allegations of sexual assault.
[14]
The
applicant sought Ministerial review of his conviction for sexual assault under
subsection 696.3(3) of the Criminal Code RS, 1985, c C-46. In December 2008, the
Alberta Court of Appeal quashed the conviction and ordered a new trial. At a de
novo trial of the sexual assault charge, the Crown called no evidence and
the charges were dismissed.
[15]
In
August 2008, the applicant applied for refugee protection then abandoned his
claim. His request for it to be reopened was denied. His subsequent pre-removal
risk assessment application was also denied in April 2010.
Decisions Under Review
Danger Opinion (February
1996)
[16]
A
delegate of the Minister signed off on the danger opinion on February 22, 1996. The delegate concurred with
the opinions and assessments of the reviewing officer (the reviewing officer).
[17]
The
reviewing officer began the danger opinion by listing several charges of which
the applicant had been convicted. These were break and enter with intent to
commit an indictable offence, assault and sexual assault.
[18]
The
reviewing officer then noted that the Minister had received several letters
including from the applicant’s family, the Canadian Crime Prevention Centre and
the Lethbridge City Police in support of the applicant’s removal.
[19]
The
reviewing officer found that the applicant’s family are “terrified of him” and
believe he will continue to abuse them if he remains in Canada. The officer
was particularly concerned about the applicant’s statements that he is
justified in his actions as long as he pays the price by going to jail. The
officer found that the likelihood of recidivism in such a case is considered to
be high as the applicant accepts no responsibility for his actions and denies
wrongdoing by placing the blame on his ex-wife and her family.
[20]
The
Minister’s delegate concluded that the applicant is a danger to the public
pursuant to subsection 70(5) of the Immigration Act.
First Deportation Order
(February 1996)
[21]
An
officer found that the applicant was a person described in paragraph 27(1)(d)
of the Immigration Act – a person who has been convicted of an offence for which a term of imprisonment
of more than six months has been, or five years or more may be, imposed. The
officer ordered that the applicant be deported pursuant to
subsection 32(2) of the former Act.
First Inadmissibility
Report (April 1997)
[22]
An
immigration officer found that the applicant is a person described in paragraph
27(2)(h) of the Immigration Act – a person who came into Canada contrary to
section 55 of the Immigration Act. The officer found that the applicant
is not a Canadian citizen or permanent resident and that he was removed from Canada in June 1996
and did not have the permission of the Minister to return to Canada.
Second Inadmissibility
Report (December 1998)
[23]
An
immigration officer found the applicant to be a person in Canada who is not a
permanent resident and is inadmissible to Canada as a person
described in paragraph 27(2)(a) by paragraph 19(1)(c) of the Immigration Act.
[24]
The
officer found that the applicant was removed from Canada on June 17,
1996 and he returned to Canada in November 1996.
[25]
The
officer also found that the applicant was convicted of assault under section
271 of the Criminal Code which carries a maximum penalty of ten years
imprisonment.
Second Deportation Order
(January 1999)
[26]
An
officer found that the applicant was a person described in paragraph 27(2)(a)
by paragraph 19(1)(c) as well as a person described in paragraph 27(2)(h) of
the Immigration Act and ordered that he be deported pursuant to
subsection 32.1(4) of the former Act.
Issues
[27]
The
issues are as follows:
1. What is the
appropriate standard of review?
2. Is the application res
judicata?
3. Should the danger
opinion be quashed?
4. Should the first
deportation order be quashed?
5. Should the second
deportation order be quashed?
6. Should this Court
declare the applicant a permanent resident?
7. Should this Court
declare that the applicant has the right to access the IAD appeal process?
Applicant’s Written Submissions
[28]
The
applicant submits that the danger opinion is no longer valid as the applicant
has effectively been acquitted of the sexual assault charge on which the
opinion is based. The Alberta Court of Appeal quashed the conviction and
ordered a new trial pursuant to subsection 686(2). The applicant submits that
the dismissal of the new trial amounts to an acquittal under subsection 570(2)
of the Criminal Code.
[29]
The
applicant argues that following an acquittal of the charge of sexual assault,
the sexual assault conviction is deemed never to have occurred. As such, the
applicant submits that the danger opinion is based on a nullity and should be
quashed. The applicant relies on Smith v Canada (Minister
of Citizenship and Immigration), [1998] 3
FC 144 for
the proposition that if a conviction is expunged, then the applicant cannot be
a person described as inadmissible for serious criminality. Further, paragraph
36(3)(b) of the Act is clear that individuals cannot be found criminally
inadmissible for crimes for which they were acquitted.
[30]
The
applicant contends that there have been a series of cumulative wrongs stemming
from the danger opinion. According to the applicant, he lost his permanent
residence status when he was deported pursuant to the 1996 deportation order
which was based on the now invalid danger opinion. Because the danger opinion
is now invalid, the applicant should be declared a permanent resident.
[31]
In
the alternative, even if the applicant is not declared a permanent resident, he
submits that he should be given the opportunity to appeal the 1999 removal
order against him to the IAD. Currently, he is prevented from doing so due to
subsection 326(2) of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the
Regulations) which states that anyone found to be a danger to the public under
subsection 70(5) of the Immigration Act cannot appeal to the IAD under
subsection 64(1) of the Act.
[32]
The
applicant submits that the danger opinion and resulting deportation orders, the
loss of permanent residence and the charge for entering Canada without
permission amount to a breach of natural justice given the acquittal of the
sexual assault charge on which they are all based.
Respondent’s Written Submissions
[33]
The
respondent submits that the danger opinion and the first deportation order are res
judicata and moot. The first deportation order was upheld after a dismissed
stay application and then executed when the applicant was deported to Italy. Given subsection 319(1) of the Act, the
order is no longer in effect. This Court also upheld the danger opinion upon
judicial review in 1997 (see Pascale v Canada (Minister of Citizenship and
Immigration) (1997),
139 FTR 25).
[34]
The
respondent further argues that the danger opinion is not based solely on the
sexual assault and therefore remains factually valid. It was based upon three
criminal convictions that the applicant accrued between 1981 and 1994: a break
and enter with intent conviction for which the applicant served 15 months, an
October 1993 conviction for assault for which the applicant was sentenced to 18
months probation and the now overturned 1995 sexual assault conviction.
[35]
The
danger opinion also remains legally valid by operation of the transition scheme
established under the Act and its Regulations. Subsection 326(2) of the
Regulations was enacted to ensure the continuing effect of the Minister’s
danger opinion issued under the Immigration Act.
[36]
The
respondent submits that the applicant ceased to be a permanent resident on June
17, 1996 when he was deported to Italy pursuant to the valid
1996 deportation order and pursuant to paragraph 24(1)(b) of the Immigration
Act. The loss of permanent residence was legally valid and cannot now be
restored.
[37]
The
applicant is barred from appealing the second deportation order because
subsection 63(3) of the Act does not provide for removal order appeals by
foreign nationals. Despite the 2009 overturning of the sexual assault
conviction, the applicant ceases to be a permanent resident and is bound by
subsection 63(3).
Analysis and Decision
[38]
Issue
1
What is the
appropriate standard of review?
Where previous jurisprudence has
determined the standard of review applicable to a particular issue, the
reviewing court may adopt that standard (see Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR
190 at paragraph 57).
[39]
It is established that the standard of review of the Minister’s danger opinion is
reasonableness (see Randhawa v Canada (Minister of Citizenship and Immigration), 2009 FC 310 at
paragraph 3; Kanagasingam v Canada (Minister of Citizenship and Immigration), 2009 FC 90 at
paragraph 18). Likewise, the deportation and inadmissibility orders challenged
by the applicant are also based on issues of mixed fact and law and they too,
will be reviewed on the reasonableness standard.
[40]
Issue
2
Is the application res judicata?
The respondent submitted
at the leave stage that the danger opinion and the first deportation order are
both res judicata and moot. The respondents again submitted this in the
judicial review.
[41]
As
both the danger opinion and the first deportation order have already been
judicially reviewed by this Court, res judicata could have and may have
been considered at the leave stage. However, as Mr. Justice Michael Kelen
granted leave on November 2, 2010, the matter is now before the Federal Court
for judicial review.
[42]
The
Federal Court of Appeal stated clearly in Canada (Solicitor
General) v Bubla, [1995] 2 FC 680, [1995] FCJ No 490 (QL)(FCA) at paragraph 16 that no
Federal Court judge sits in appeal of another:
There is no inherent power in one judge to review the merits of a
decision of another judge of coordinate jurisdiction. Nor is the decision of a
superior court judge open to review in collateral proceedings. While it may be
open to the judge who disposes of an application for leave to reconsider the
matter himself in certain limited circumstances, it is not open to another
judge to sit on appeal from that decision. The hearing of an application for
judicial review is not an occasion for hearing an appeal from the decision to
grant leave to seek that judicial review. Therefore the learned Trial Judge
should have declined to deal with the attack by Bubla's counsel on the validity
of the order of MacKay J. granting leave.
[43]
Mr. Justice Marc Nadon relied on this decision of the Federal
Court of Appeal in Guzman v Canada (Minister
of Citizenship and Immigration), 2002 FCT 15. He
considered the issue of res judicata and found that it was not open to
him to dismiss the judicial review application on the grounds of res
judicata because leave had been granted and the decision of the judge
granting leave was final.
[44]
Given
the direction from the Federal Court of Appeal and following its application by
Mr. Justice Nadon in this Court, I find that I am not in a position to consider
the submission on res judicata.
[45] Issue 3
Should the
danger opinion be quashed?
The applicant
submits that the danger opinion should be quashed because the overturning of
the sexual assault conviction removes the factual basis of the opinion.
[46]
Madam
Justice Eleanor Dawson dealt with a similar issue in Johnson v Canada (Minister of
Citizenship and Immigration), 2008 FC 2. In that case,
Mr. Johnson was convicted of sexual
assault and forcible confinement and his application for
permanent residence was denied on the basis
that he was inadmissible on account of serious criminality pursuant to
paragraph 36(1)(a) of the Act. The convictions were
subsequently overturned. Madame Justice Dawson held, at paragraph 24, that the
denial of the permanent residence application should be upheld despite the fact
that it was based on convictions which were overturned because:
. . . the officer did not err
by refusing Mr. Johnson's application for permanent residence. The convictions
were in force when the negative decision was made and they remained in force
until set aside on appeal.
Applying Madam Justice Dawson’s analysis to
the case at bar, the danger opinion remains valid despite the overturning of
the conviction for sexual assault on which it is based in part.
[47]
Even
if I were not to follow the reasoning of Johnson above, the danger
opinion remains valid without the conviction for sexual assault. The danger
opinion was based on three convictions: break and enter with intent, assault
and the now overturned sexual assault conviction.
[48]
The
applicant was considered a danger to the public in Canada and ordered
deported under subsection 70(5) of the Immigration Act for being a
person “described in paragraph 27(1)(d) who has been convicted of an offence under any
Act of Parliament for which a term of imprisonment of ten years or more may be
imposed.”
[49]
An
examination of the wording of the danger opinion indicates that it was based on
more than simply the sexual assault conviction.
[50]
The
applicant’s conviction in 1981 under section 306 of the Criminal Code,
RS 1970 c C-34 for break and enter with intent to commit an indictable offence,
carried a maximum punishment of life imprisonment for breaking and entering of
a dwelling house and fourteen years for breaking and entering of a location
other than a dwelling house. Both of these maximum sentences mean that the
break and enter with intent to commit could have sustained a danger opinion,
absent the sexual assault conviction.
[51]
The
officer was also concerned that the applicant’s family is terrified of him and
fear continued abuse at his hands. The central aspect of the danger opinion
analysis is that the applicant does not take responsibility for his actions and
feels justified in the crimes he has committed as he spent time in jail for
them. The officer found this particularly concerning and indicative of a high
likelihood for recidivism. This was the heart of the danger opinion.
[52]
Because
of this, I find that the danger opinion remains valid despite the overturning
of the sexual assault conviction. Contrary to the applicant’s submissions, the
danger opinion is not based on a nullity, it is based on two convictions and
the determination the applicant had a high likelihood of recidivism.
[53]
Issue
4
Should the
first deportation order be quashed?
The first
deportation order is clearly moot. When the applicant was removed from Canada on June 17, 1996, pursuant
to the deportation order, the order was executed and no longer in effect. Subsection
319(1) of the Act is unambiguous that only unexecuted removal orders made under
the former Act would have continue in force following the enactment of the Act.
[54]
Issue
5
Should the
second deportation order be quashed?
The second deportation order is
valid. The order was based on two provisions, paragraph 27(2)(a) by paragraph 19(1)(c)
and paragraph 27(2)(h) of the Immigration Act.
[55]
Concerning
paragraph 27(2)(a), the second inadmissibility report discussing this
provision, found only that the applicant was convicted for sexual assault.
[56]
Again,
applying Madam Justice Dawson’s reasoning from Johnson above, the
inadmissibility report or the second deportation order relying on the report
should not be quashed despite the overturning of the criminal conviction for
sexual assault in December 2008 and the dismissal of the charges in a trial de
novo.
[57]
Moreover,
the second deportation order can stand alone on the first inadmissibility
report based on the paragraph 27(2)(h) findings. The applicant clearly
re-entered Canada in November
1996 without the permission of the Minister contrary to section 55 of the
former Act. The first inadmissibility report based on paragraph 27(2)(h) finds
the applicant to be inadmissible to Canada on this basis. The
second deportation can stand alone on the paragraph 27(2)(h) findings and
should not be quashed for that reason even if the reasoning of Johnson
above, is not applied.
[58]
Issue
6
Should this
Court declare the applicant a permanent resident?
The applicant
ceased to be a permanent resident on June 17, 1996 pursuant to paragraph 24(1)(b)
of the former Act. That section stated that:
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24. (1) A
person ceases to be a permanent resident when . . .
(b)
a removal order has been made against that person and the order is not
quashed or its execution is not stayed pursuant to subsection 73(1).
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24.
(1) Emportent déchéance du statut de résident permanent: . . .
b)
toute mesure de renvoi n'ayant pas été annulée ou n'ayant pas fait l'objet
d'un sursis d'exécution au titre du paragraphe 73(1).
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[59]
The
applicant submits that his permanent residence should be reinstated because of
a chain of events that flows from the danger opinion. Because of the danger
opinion, the first deportation order was executed and he thus lost his
permanent residence.
[60]
However,
the loss of permanent residence was legal and legitimate at the time and there
was no error in the execution of the deportation order.
[61]
More
importantly, as I have found that the danger opinion remains valid, the
applicant’s submission that his deportation was based on an illegal danger
opinion cannot succeed.
[62]
When
the applicant re-entered Canada on his Italian passport in November 1996,
he entered as a foreign national. This status has not changed since that time.
[63]
Issue
7
Should this Court declare
that the applicant has the right to access the IAD appeal process?
The applicant
requests that he be given the right to access the IAD appeal procedures.
[64]
Pursuant
to the transition scheme of subsection 326(2):
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326.(2) A
person in respect of whom subsection 70(5) or paragraph 77(3.01)(b) of the
former Act applied on the coming into force of this section is a person in
respect of whom subsection 64(1) of the Immigration and Refugee Protection
Act applies.
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326.(2)
La personne visée par le paragraphe 70(5) ou l’alinéa 77(3.01)b) de
l’ancienne loi à l’entrée en vigueur du présent article est visée par le
paragraphe 64(1) de la Loi sur l’immigration et la protection des réfugiés.
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[65]
Section 64(1) of IRPA states that:
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64.(1) No
appeal may be made to the Immigration Appeal Division by a foreign national
or their sponsor or by a permanent resident if the foreign national or
permanent resident has been found to be inadmissible on grounds of security,
violating human or international rights, serious criminality or organized
criminality.
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64.(1)
L’appel ne peut être interjeté par le résident permanent ou l’étranger qui
est interdit de territoire pour raison de sécurité ou pour atteinte aux
droits humains ou internationaux, grande criminalité ou criminalité
organisée, ni par dans le cas de l’étranger, son répondant.
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[66]
As
I have already found that the danger opinion and findings under subsection
70(5) remain valid despite the overturned sexual assault conviction, then
Regulation 326(2) also remains in effect for the applicant.
[67]
Given
my findings above, I would dismiss the application for judicial review.
[68]
The
parties are given one week from the date of this judgment to submit any
proposed serious question of general importance for my consideration for
certification and three days after that for the parties to respond to any
questions.
“John A. O’Keefe”
Ottawa,
Ontario
July
13, 2011
ANNEX
Relevant Statutory Provisions
Immigration Act,
RSC 1985, c I-2, s 19
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24. (1) A
person ceases to be a permanent resident when . . .
(b) a removal
order has been made against that person and the order is not quashed or its
execution is not stayed pursuant to subsection 73(1).
27. (1) An
immigration officer or a peace officer shall forward a written report to the
Deputy Minister setting out the details of any information in the possession
of the immigration officer or peace officer indicating that a permanent
resident is a person who . . .
(d) has been
convicted of an offence under any Act of Parliament, other than an offence
designated as a contravention under the Contraventions Act, for which a term
of imprisonment of more than six months has been, or five years or more may
be, imposed;
55. (1)
Subject to section 56, where a deportation order is made against a person,
the person shall not, after he is removed from or otherwise leaves Canada,
come into Canada without the written consent of the Minister unless an appeal
from the order has been allowed.
. . .
55.(3) A
person against whom a departure order has been made
(a) who
(i) complies
with section 32.01, is issued a certificate of departure under that section
and leaves Canada voluntarily before the expiration of the applicable period
specified for the purposes of subsection 32.02(1), or
(ii) is
removed from Canada before the expiration of that period
and has been issued a certificate of departure under section 32.01, or
(b) who is
detained before the expiration of the applicable period specified for the
purposes of subsection 32.02(1), who is still in detention under this Act at
the expiration of that period and who is subsequently removed from Canada,
may, if the
person otherwise meets the requirements of this Act and the regulations,
return to Canada without the written consent of the
Minister.
70.(5) No
appeal may be made to the Appeal Division by a person described in subsection
(1) or paragraph (2)(a) or (b) against whom a deportation order or
conditional deportation order is made where the Minister is of the opinion
that the person constitutes a danger to the public in Canada and the person
has been determined by an adjudicator to be
(a) a member
of an inadmissible class described in paragraph 19(1)(c), (c.1), (c.2) or
(d);
(b) a person
described in paragraph 27(1)(a.1);or
(c) a person
described in paragraph 27(1)(d) who has been convicted of an offence under
any Act of Parliament for which a term of imprisonment of ten years or more
may be imposed.
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24.
(1) Emportent déchéance du statut de résident permanent: . . .
b)
toute mesure de renvoi n'ayant pas été annulée ou n'ayant pas fait l'objet
d'un sursis d'exécution au titre du paragraphe 73(1).
27.
(1) L'agent d'immigration ou l'agent de la paix doit faire part au
sous-ministre, dans un rapport écrit et circonstancié, de renseignements
concernant un résident permanent et indiquant que celui-ci, selon le cas: . .
.
d)
a été déclaré coupable d'une infraction prévue par une loi fédérale, autre
qu'une infraction qualifiée de contravention en vertu de la Loi sur les
contraventions :
(i)
soit pour laquelle une peine d'emprisonnement de plus de six mois a été
imposée,
(ii)
soit qui peut être punissable d'un emprisonnement maximal égal ou supérieur à
cinq ans;
55.
(1) Sous réserve de l'article 56, quiconque fait l'objet d'une mesure
d'expulsion ne peut plus revenir au Canada sans l'autorisation écrite du
ministre, sauf si la mesure est annulée en appel.
. .
.
(3)
Peuvent revenir au Canada sans l'autorisation écrite du ministre, si elles
satisfont aux exigences de la présente loi et de ses règlements, les
personnes suivantes:
a)
celles qui font l'objet d'une mesure d'interdiction de séjour et qui quittent
volontairement le Canada ou en sont renvoyées, conformément à l'article
32.01, avant l'expiration de la période réglementaire applicable prévue au
paragraphe 32.02(1);
b)
celles qui, ayant fait l'objet d'une mesure d'interdiction de séjour, sont en
détention avant la date d'expiration de cette période, se trouvent encore en
détention en vertu de la présente loi à cette date et sont par la suite
renvoyées du Canada.
70.
(5) Ne peuvent faire appel devant la section d'appel les personnes, visées au
paragraphe (1) ou aux alinéas (2)a) ou b), qui, selon la décision d'un
arbitre:
a)
appartiennent à l'une des catégories non admissibles visées aux alinéas
19(1)c), c.1), c.2) ou d) et, selon le ministre, constituent un danger pour
le public au Canada;
b)
relèvent du cas visé à l'alinéa 27(1)a.1) et, selon le ministre, constituent
un danger pour le public au Canada;
c)
relèvent, pour toute infraction punissable aux termes d'une loi fédérale d'un
emprisonnement maximal égal ou supérieur à dix ans, du cas visé à l'alinéa
27(1)d) et, selon le ministre, constituent un danger pour le public au
Canada.
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Immigration and Refugee Protection Act, SC 2001, c 27
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63. . . .
(2) A foreign
national who holds a permanent resident visa may appeal to the Immigration
Appeal Division against a decision at an examination or admissibility hearing
to make a removal order against them.
(3) A
permanent resident or a protected person may appeal to the Immigration Appeal
Division against a decision at an examination or admissibility hearing to
make a removal order against them.
64.(1) No
appeal may be made to the Immigration Appeal Division by a foreign national
or their sponsor or by a permanent resident if the foreign national or
permanent resident has been found to be inadmissible on grounds of security,
violating human or international rights, serious criminality or organized
criminality.
(2) For the
purpose of subsection (1), serious criminality must be with respect to a
crime that was punished in Canada by a term of imprisonment of at least
two years.
72.(1) Judicial review by the Federal
Court with respect to any matter — a decision, determination or order made, a
measure taken or a question raised — under this Act is commenced by making an
application for leave to the Court.
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63
. . .
(2)
Le titulaire d’un visa de résident permanent peut interjeter appel de la
mesure de renvoi prise au contrôle ou à l’enquête.
(3)
Le résident permanent ou la personne protégée peut interjeter appel de la
mesure de renvoi prise au contrôle ou à l’enquête.
64.(1)
L’appel ne peut être interjeté par le résident permanent ou l’étranger qui
est interdit de territoire pour raison de sécurité ou pour atteinte aux
droits humains ou internationaux, grande criminalité ou criminalité
organisée, ni par dans le cas de l’étranger, son répondant.
(2)
L’interdiction de territoire pour grande criminalité vise l’infraction punie
au Canada par un emprisonnement d’au moins deux ans.
72.(1)
Le contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
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Immigration
and Refugee Protection Regulations,
SOR/2002-227
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326.(1) A claim to be a Convention refugee
made by a person described in subparagraph 19(1)(c.1)(i) of the former Act in
respect of whom the Minister was of the opinion under subparagraph
46.01(1)(e)(i) of the former Act that the person constitutes a danger to the
public in Canada is deemed, if no determination was made by a senior
immigration officer under section 45 of the former Act, to be a claim for
refugee protection made by a person described in paragraph 101(2)(b) of the
Immigration and Refugee Protection Act who is inadmissible and in respect of
whom the Minister is of the opinion that the person is a danger to the
public.
(2) A person
in respect of whom subsection 70(5) or paragraph 77(3.01)(b) of the former
Act applied on the coming into force of this section is a person in respect of
whom subsection 64(1) of the Immigration and Refugee Protection Act applies.
(3) A person
whose removal on the coming into force of this section was allowed by the
application of paragraphs 53(1)(a) to (d) of the former Act is a person
referred to in subsection 115(2) of the Immigration and Refugee Protection
Act.
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326.(1)
La revendication du statut de réfugié par la personne qui appartient à la
catégorie non admissible visée au sous-alinéa 19(1)c.1)(i) de l’ancienne loi
et qui constitue, selon le ministre, aux termes du sous-alinéa 46.01(1)e)(i)
de cette loi, un danger pour le public au Canada vaut, si aucune décision n’a
été prise par l’agent principal en vertu de l’article 45 de cette loi,
demande d’asile faite par le demandeur visé à l’alinéa 101(2)b) de la Loi sur
l’immigration et la protection des réfugiés, tant du fait de l’interdiction
de territoire que du fait de l’avis du ministre visés à cet alinéa.
(2)
La personne visée par le paragraphe 70(5) ou l’alinéa 77(3.01)b) de
l’ancienne loi à l’entrée en vigueur du présent article est visée par le
paragraphe 64(1) de la Loi sur l’immigration et la protection des réfugiés.
(3)
La personne dont le renvoi était permis à l’entrée en vigueur du présent
article du fait de l’application des alinéas 53(1)a) à d) de l’ancienne loi
est visée au paragraphe 115(2) de la Loi sur l’immigration et la protection
des réfugiés.
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Criminal Code RS 1985, c C-46
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570. . . .
(2) Where an
accused who is tried under this Part is found not guilty of an offence with
which the accused is charged, the judge or provincial court judge, as the
case may be, shall immediately acquit the accused in respect of that offence
and shall cause an order in Form 37 to be drawn up, and on request shall make
out and deliver to the accused a certified copy of the order.
(4) A copy of
a conviction in Form 35 or of an order in Form 36 or 37, certified by the
judge or by the clerk or other proper officer of the court, or by the
provincial court judge, as the case may be, or proved to be a true copy, is,
on proof of the identity of the person to whom the conviction or order
relates, sufficient evidence in any legal proceedings to prove the conviction
of that person or the making of the order against that person or his
acquittal, as the case may be, for the offence mentioned in the copy of the
conviction or order.
686.(1) On the
hearing of an appeal against a conviction or against a verdict that the
appellant is unfit to stand trial or not criminally responsible on account of
mental disorder, the court of appeal
(a) may allow
the appeal where it is of the opinion that
(i) the
verdict should be set aside on the ground that it is unreasonable or cannot
be supported by the evidence,
(ii) the
judgment of the trial court should be set aside on the ground of a wrong
decision on a question of law, or
(iii) on any
ground there was a miscarriage of justice;
. . .
(2) Where a
court of appeal allows an appeal under paragraph (1)(a), it shall quash the
conviction and
(a) direct a
judgment or verdict of acquittal to be entered; or
(b) order a
new trial.
696.3(3) On an
application under this Part, the Minister of Justice may
(a) if the
Minister is satisfied that there is a reasonable basis to conclude that a
miscarriage of justice likely occurred,
(i) direct, by
order in writing, a new trial before any court that the Minister thinks
proper or, in the case of a person found to be a dangerous offender or a
long-term offender under Part XXIV, a new hearing under that Part, or
(ii) refer the
matter at any time to the court of appeal for hearing and determination by
that court as if it were an appeal by the convicted person or the person
found to be a dangerous offender or a long-term offender under Part XXIV, as
the case may be; or
(b) dismiss
the application.
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570.
. . .
(2)
Lorsqu’un prévenu qui subit son procès en vertu de la présente partie est
déclaré non coupable d’une infraction dont il est inculpé, le juge ou le juge
de la cour provinciale, selon le cas, l’acquitte immédiatement de cette infraction
et fait rédiger une ordonnance selon la formule 37, et, sur demande, établit
et remet au prévenu une copie certifiée de l’ordonnance.
(4)
Une copie d’une déclaration de culpabilité selon la formule 35 ou d’une
ordonnance selon les formules 36 ou 37, certifiée conforme par le juge ou par
le greffier ou autre fonctionnaire compétent du tribunal, ou par le juge de
la cour provinciale, selon le cas, ou avérée copie conforme, constitue, sur
preuve de l’identité de la personne qu’elle vise, une attestation suffisante,
dans toutes procédures judiciaires, pour établir la condamnation de cette
personne, l’établissement d’une ordonnance contre elle ou son acquittement,
selon le cas, à l’égard de l’infraction visée dans la copie de la déclaration
de culpabilité ou de l’ordonnance.
686.(1)
Lors de l’audition d’un appel d’une déclaration de culpabilité ou d’un
verdict d’inaptitude à subir son procès ou de non-responsabilité criminelle
pour cause de troubles mentaux, la cour d’appel :
a)
peut admettre l’appel, si elle est d’avis, selon le cas :
(i)
que le verdict devrait être rejeté pour le motif qu’il est déraisonnable ou
ne peut pas s’appuyer sur la preuve,
(ii)
que le jugement du tribunal de première instance devrait être écarté pour le
motif qu’il constitue une décision erronée sur une question de droit,
(iii)
que, pour un motif quelconque, il y a eu erreur judiciaire;
. .
.
(2)
Lorsqu’une cour d’appel admet un appel en vertu de l’alinéa (1)a), elle
annule la condamnation et, selon le cas :
a)
ordonne l’inscription d’un jugement ou verdict d’acquittement;
b)
ordonne un nouveau procès.
696.3(3)
Le ministre de la Justice peut, à l’égard d’une demande présentée sous le
régime de la présente partie :
a)
s’il est convaincu qu’il y a des motifs raisonnables de conclure qu’une
erreur judiciaire s’est probablement produite :
(i)
prescrire, au moyen d’une ordonnance écrite, un nouveau procès devant tout
tribunal qu’il juge approprié ou, dans le cas d’une personne déclarée
délinquant dangereux ou délinquant à contrôler en vertu de la partie XXIV,
une nouvelle audition en vertu de cette partie,
(ii)
à tout moment, renvoyer la cause devant la cour d’appel pour audition et
décision comme s’il s’agissait d’un appel interjeté par la personne déclarée
coupable ou par la personne déclarée délinquant dangereux ou délinquant à
contrôler en vertu de la partie XXIV, selon le cas;
b) rejeter la
demande.
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