A-47-95
CORAM: MARCEAU J.A.
MacGUIGAN J.A.
DESJARDINS J.A.
BETWEEN:
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Appellant
-
and -
ALEXANDER
HENRI LEGAULT
Respondent
REASONS
FOR JUDGMENT
MacGUIGAN J.A.
An
adjudicator issued a conditional deportation order against the respondent, an
American citizen with no residence status in Canada and a fugitive from justice
in the United States, on the basis, inter alia, that he had reasonable grounds
to believe that the respondent came within the proscription of subparagraph
19(1)(c.1)(ii) of the Immigration Act (the Act).
The
Motions Judge quashed the adjudicator's decision and certified the following
question to this Court (Appeal Book, I, 280):
Whether the adjudicator
erred in finding, on the basis of the warrant for arrest and indictment from
the United States of America, that he had reasonable grounds to believe that
the applicant [respondent] had committed outside Canada certain acts or
omissions which constituted offences under the laws of the United States of
America within the meaning of subparagraph 19(1)(c.1)(ii) of the Immigration
Act, R.S.C. 1985, c.I-2 as amended.
Extradition
of the respondent was sought by the United States Department of State, but was
refused by Riopel J. of the Quebec Superior Court on 10 March 1983 because
almost all of the affidavit evidence submitted was deficient either in form or
in content. Riopel J. stated (Appeal Book, I, 118):
In reaching the present
decision, I was mindful of my obligations to give effect to the extradition
treaty between the U.S. and Canada and not to dismiss an application for what
might otherwise appear to have been a mere procedural technicality. It is,
nonetheless, my view that it was incumbent upon the requesting state to prove
its case, even prima facie, at least in the observance of our laws as a minimal
standard if not in accordance with the proven requirements of its own
legislation.
The objection raised on
behalf of Respondent having been sustained in most of its important aspects,
and assuming for the purpose of the present, but without deciding that three of
the prerequisite conditions for the granting of the application would have been
met in that: we are dealing with an extradition crime; that is a crime both in
Canada and in the U.S.A. and the identity of the fugitive as the accused in the
extradition proceedings has been proven, it necessarily follows that the fourth
condition having regard to the prima facie evidence with respect to the
commission of the crime cannot be met since there is no evidence that Legault,
a k a William Barr, had anything to do with the transaction even if
we could find that Barr had set up the material facilities, which the Court is
not prepared to do at this time; there is no evidence of the presentation by
Barr of any false documents; nor is there any proof of forgery of the said
documents by Barr; in short, no evidence of any activity, criminal or otherwise
on the part of Barr after February 26, 1981.
FOR THESE REASONS, the
application is dismissed and the fugitive accordingly discharged.
On
14 March 1986 a U.S. federal grand jury returned a true bill of indictment
against the respondent on a variety of offences including conspiracy to commit
wire and mail fraud, fraud, falsely making a bill of lading and use of
fictitious names. On the basis of the indictment, a warrant for the
respondent's arrest was issued the same day by the U.S. District Court.
It
was ultimately as a result of this indictment and warrant that the inquiry by
an adjudicator was held and a decision rendered on 10 December 1993 leading to
the deportation order. The respondent testified at the inquiry, but was asked
no questions concerning the detailed allegations in the indictment. (Of
course, he could have volunteered evidence on his own).
The
analysis by the Motions Judge of the adjudicator's action was as follows (Appeal
Book, I, 287-288):
The Canadian and
American systems of law pertaining to the issuance of an indictment differ
significantly, principally due to the abolition in Canada of the grand jury
system. It is unnecessary for the purposes of the decision in this case for me
to conduct a detailed analysis of Canadian and American criminal procedure
concerning the issuance of indictments. Suffice it to say that, despite
differences in the criminal procedure in the two countries, an indictment
performs the same function in both legal systems in that it is the formal legal
document containing the alleged indicatable criminal offences upon which the
accused will be tried by a judge or jury, as the case may be. It does not
constitute evidence and may not be used as evidence by the trier of fact in the
criminal proceedings. Indeed, in the Canadian legal system, judges routinely
instruct juries in criminal cases that the indictment is not evidence of
anything alleged in it.
In the present case, the
adjudicator concluded that the warrant for arrest and the indictment
"represented" reasonable grounds to believe that the applicant
committed various offences under American law. In arriving at this conclusion,
the adjudicator based his decision solely on the allegations in the indictment
which had been returned by a grand jury in the United States of America. He
examined no evidence pertaining to the alleged offences. In my opinion, the
contents of the warrant for arrest and the indictment did not constitute
evidence of the commission of alleged criminal offences by the applicant. The
adjudicator therefore erred in law in concluding, on the basis of these
documents, that he had reasonable grounds to believe that the applicant had
committed outside Canada acts or omissions which constituted offences under the
laws of the United States of America. Furthermore, in relying on the
allegations made in the indictment, the adjudicator erred in law by failing to
make an independent determination on the basis of evidence adduced before him.
In
my respectful opinion the Motions Judge was mistaken in proceeding on the basis
of the criminal law analogy, in the context of which her conclusion certainly
was correct, as it would also have been in the case of extradition
proceedings. For one thing, in such proceedings the indictment would be
excluded as constituting hearsay evidence.
But
s. 80.1(5) of the Act clearly establishes a different standard for immigration
adjudicators. It reads as follows:
An adjudicator is not
bound by any legal or technical rules of evidence and, in any proceedings, may
receive and base a decision on evidence adduced in the proceedings and considered
credible or trustworthy in the circumstances of the case. [Emphasis
added].
As
this Court put it in Attorney General v. Jolly, [1975] F.C. 216, 223
(per Thurlow J., as he then was), in dealing with the same language, "the
Board was entitled to found its judgment on the material in the exhibit if it
considered what was in it to be credible and trustworthy in the
circumstances." Indeed, in M.E.I. v. Gray, A-334-77, decided 14
January 1984 (per Heald J.A.) this Court decided that the Immigration Appeal
Board was in error when it rejected evidence because the documents in question
were not proven pursuant to the rules of evidence in civil actions. Dan-Ash
v. M.E.I (1988), 93 N.R. 33 (per Hugessen J.A.) went further in holding
that the Board was no more bound by the best evidence rule than by the hearsay
rule. I do not see Nakkuda Ali v. Jayaratne, [1951] A.C. 66, on which
the respondent relied heavily to support a limitation of administrative
discretion, as governing, given the precise statutory authority under the Immigration
Act.
The
Motions Judge also concluded that "in relying on the allegations made in
the indictment, the adjudicator erred in law by failing to make an independent
determination on the basis of the evidence adduced before him." But this
conclusion fails to take account of the adjudicator's own description of what
he was doing (Appeal Book, I, 44):
One of the elements of
subparagraph 19(1)(c.1)(ii) is the expression (reasonable grounds) which
requires that the level of evidence be less than the balance of probabilities.
I must determine if the
acts allegedly committed by Mr. Legault constitute offenses under the law of
the United States. The warrant for the arrest of Mr. Legault and the
indictment represent in my opinion reasonable grounds to believe that Mr.
Legault committed a number of acts punishable by the law of the United States.
These two documents identify in detail the infractions and provide a detailed
description of the procedure followed for the commission of the different
infractions....
Secondly, I must
determine if the acts committed by Mr. Legault in the United States constitute
offenses under an act of Parliament.
There
is nothing here to indicate that the adjudicator is not making an independent
determination of the facts. Quite the contrary! As the adjudicator stated,
the indictment and the warrant "identify in detail the infractions and
provide a detailed description of the procedure followed for the commission of
the different infractions." He considered this evidence credible or
trustworthy in the circumstances of the case, and in my opinion such a decision
is entirely within his discretion. Given the evidence before the adjudicator,
he could reasonably arrive at the conclusion he did.
His
apparent bona fides is strengthened by the fact that he reached the
conclusion that there was no reason to believe that the respondent had violated
s. 121 of Title 49 of the U.S. Code in spite of the grand jury conclusion
that he had done so.
The
respondent laid a good deal of emphasis on the fact that the adjudicator had
before him the extradition judgment as well as the grand jury indictment, and
went on to argue that the extradition judge had concluded that there was no
evidence linking the respondent with any criminal activity. I believe this is
a considerable over‑interpretation of Riopel J.'s concluding comments.
He
found no evidence of the presentation of false documents, no proof of forgery,
"no evidence of any activity, criminal or otherwise on the part of [the
respondent] after February 26, 1981." But this conclusion is based on the
deficient affidavits before him, and has no generalizable quality. Moreover,
it was uttered three years before the grand jury indictment was brought down.
In
any event, in my view the weighing of the evidence was within the discretion of
the adjudicator.
Therefore,
the certified question should be answered in the negative, and the judgment
should be rendered accordingly.
(Mark R. MacGuigan)
J.A.
I agree
Louis Marceau J.A.
I agree
Alice Desjardins J.A.
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