Ward v. Canada (Citizenship and Immigration), docket IMM-504-96

     IMM-504-96

BETWEEN:

     PATRICK FRANCIS WARD

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

HEALD D.J.:

     This is an application for the judicial review of a decision of an Adjudicator, Ms. A. Martens of the Immigration and Refugee Board, Adjudication Division, dated February 13, 1996, in which she made a deportation order against the applicant.

THE FACTS

     The facts in this application are not in dispute. The applicant is a citizen of the United Kingdom and Ireland. In 1983, he joined the Irish National Liberation Army (the "INLA"), an organization which the applicant himself described as a "ruthless paramilitary organization". After joining the INLA, the applicant was ordered to guard and kill an INLA hostage; however, for reasons of conscience, the applicant decided not to kill him and, instead, helped him escape.

     The INLA suspected the applicant's role in the hostage's escape, and he was detained, tortured and sentenced to death by a "kangaroo court" of the INLA. The applicant then sought police protection. Fearing that the applicant would provide the police with evidence about INLA members, the INLA held the applicant's wife and two daughters as hostages in a preemptive move to prevent the applicant from becoming an informer. The applicant, in turn, was charged by the police with false imprisonment. He pleaded guilty at a Special Criminal Court in Dublin on January 25, 1984 to the charge and was sentenced to three years' imprisonment.

     Following his release from custody in 1985, the applicant came to Canada and made a claim for Convention refugee status. After a series of appeals and re-hearings, the applicant was determined not to be a Convention refugee on October 4, 1994. His application for leave to commence an application for judicial review of this decision and a motion to reopen the refugee claim were also refused.

     By direction and report dated January 26, 1995, the applicant was ordered to appear before an Adjudicator to determine if he was a person described in paragraphs 27(2)(a) and 19(1)(c.1)(i) of the Immigration Act. These provisions state:

27. (2) An immigration officer or a peace officer shall, unless the person has been arrested pursuant to subsection 103(2), 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 person in Canada, other than a Canadian citizen or permanent resident, is a person who

(a) is a member of an inadmissible class, other than an inadmissible class described in paragraph 19(1)(h) or 19(2)(c).

19. (1) No person shall be granted admission who is a member of any of the following classes:

...

(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.

THE ADJUDICATOR'S DECISION

     On January 24, 1996, the Adjudicator determined that the applicant was a person described in paragraph 27(2)(a) of the Immigration Act, in that he was a person who was a member of an inadmissible class, specifically, that class of persons identified in subparagraph 19(1)(c.1)(i). The Adjudicator was satisfied that the common law offence for which the applicant was convicted, that being "false imprisonment", was equivalent to the Canadian offence of "forcible confinement", described in subsection 279(2) of the Criminal Code.

     The Adjudicator concluded, inter alia, that there was no fundamental dispute regarding the evidence. The applicant was convicted of the common law offence of false imprisonment; indeed, the applicant himself testified that he was involved in detaining hostages and that there was no lawful authority for this act. The essential elements of the equivalent offence in Canada -- confinement, imprisonment, or forceable seizure without lawful authority -- had therefore been made out. The Adjudicator further held that, since the offence for which the applicant was convicted was a common law felony, it could be presumed that the mens rea element was a necessary requirement.

     After reaching this decision, the Adjudicator granted the applicant an adjournment until February 13, 1996 in order to permit him to serve upon the Attorneys General of Canada and of the provinces a Notice of Constitutional Question, pursuant to section 57 of the Federal Court Act. The applicant then brought a motion before the Adjudicator for the reference of a constitutional question to the Federal Court. On February 13, 1996, the Adjudicator dismissed the applicant's motion, holding that it was not unconstitutional for an Adjudicator at an inquiry to issue a removal order and, furthermore, that it was premature to argue that the applicant's removal would violate sections 7 and 12 of the Canadian Charter of Rights and Freedoms. In his view, the appropriate time for Charter arguments, would be, when the respondent moved to execute the removal order.

ISSUES

     The two issues raised by this application are as follows:

     1.      Equivalency:     

a)      whether the Adjudicator erred in finding an equivalency between the Irish offence of false imprisonment and the Canadian offence of forcible confinement on the basis of the evidence before her;

b)      whether the Adjudicator erred in applying the provisions of the Criminal Code in force at the time of the deportation order; and

c)      whether the Adjudicator erred by failing to find that the crime for which the applicant was convicted was political in nature.

     2.      Canadian Charter of Rights and Freedoms:

    

a)      whether the deportation order made by the Adjudicator contravened sections 7 and 12 of the Canadian Charter of Rights and Freedoms?

1.      EQUIVALENCY

a)      Equivalency of conviction

     The Adjudicator determined that the applicant's conviction by the Irish Special Criminal Court for the offence of false imprisonment was equivalent to the offence of forcible confinement outlined in subsection 279(2) of the Canadian Criminal Code. This subsection provides as follows:

     279. (2) Every one who, without lawful authority, confines, imprisons or

     forcibly seizes another person is guilty of an indictable offence and

     liable to imprisonment for a term not exceeding ten years.

     The applicant, in both written and oral argument, submits that, while the Adjudicator correctly enunciated the test for determining equivalency, she erred in applying the test to the facts of the case. Specifically, the applicant submitted that he would not have been convicted of a similar Canadian offence because he was coerced into pleading guilty so as to secure the release of his wife and children and, accordingly, was deprived of his right to make full answer and defence to the charge. Further, the applicant lacked the requisite mens rea for the offence because the applicant stated that it was not his intention to confine Richard Hill, but rather to ensure his safe release. Finally, the tribunal which convicted the applicant was not an impartial independent tribunal, since the members of the Special Criminal Court are appointed and removable at the will of the government, their remuneration is paid by the government, and the Attorney General has a significant input in court matters.

     The respondent submits that the circumstances surrounding the applicant's conviction, had they been revealed at the time of his trial, might have been relevant to his conviction. The issue, however, is not whether the applicant would have been convicted if the full facts were revealed at trial or if he had been tried and convicted in Canada. The issue is whether there are reasonable grounds to believe, based on the facts and admissions of the applicant at trial, that the foreign conviction is equivalent to one in Canadian law. The respondent noted that the requisite actus reus and mens rea were made out at trial. With respect to the issue of the impartiality of the tribunal that convicted the applicant, the respondent observes that the Valente decision (Valente v. The Queen (1985), 24 D.L.R. (4th) 161 (S.C.C.)) cited by the applicant, addressed a Charter challenge to the appointment of provincial court judges. There is no basis, in the respondent's submission, to support a claim of institutional bias arising from differences in court process and procedure in Ireland, and it was open to the Adjudicator, based on the facts before her, to reject this argument.

     The test to be applied when determining equivalency was set out in Brannson v. Canada (Minister of Employment & Immigration) (1980), [1981] 2 F.C. 141 (C.A.). In that case, Mr. Justice Urie observed that, first, there must be evidence to show that the essential ingredients constituting the offence in Canada include the essential ingredients of the offence in the foreign jurisdiction, and, second, there should be evidence that the circumstances resulting in the charge which were relied on to initiate the criminal proceeding in the foreign jurisdiction, had they arisen in Canada, would constitute an offence punishable by way of indictment in Canada. This test was expanded upon by His Lordship in a later case, Hill v. Canada (Minister of Employment and Immigration) (1987), 1 Imm. L.R. (2d) 1 (F.C.A.), where he stated that equivalency could be determined in three ways: first, by a comparison of the precise wording in the statutes; second, by examining the evidence adduced by the tribunal to ascertain whether that evidence was sufficient to establish that the essential ingredients of the offence in Canada had been proved in the foreign proceedings; and, third, by a combination of the first and second requirements.

     While the applicant concedes that the Adjudicator correctly enunciated the test for equivalency, he argues that, had the circumstances which resulted in the foreign conviction against the applicant occurred in Canada, the applicant would not have been convicted of the equivalent Canadian offence. In other words, as I understand the applicant's position, the Adjudicator erred in her application of the second part of the test, that is, that the evidence was not sufficient to establish that the essential ingredients of the offence in Canada had been proved in the foreign jurisdiction.

     The circumstances relevant to the commission of the offence which resulted in the applicant's conviction included the uncontroverted evidence that the applicant had the intention, at least initially, to forcibly confine his hostage. Contrary to the applicant's assertions that he was acting under duress, it should be noted that he wilfully participated in the detention of the hostages without lawful authority. He pleaded guilty to that offence, and has never alleged that he was deprived of the opportunity to make full answer and defence to that charge. Indeed, the Adjudicator observed that Mr. Ward testified that it was suggested to him that he should reveal his role to the court, to tell the judges that he had released the hostages and he would not be sentenced to so much as a day in prison. The issue here is not whether the applicant would have been convicted if the entire facts had been revealed at trial 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. As Mr. Justice Strayer found in Li v. The Minister of Citizenship and Immigration (7 August 1996), No. A-329-95 (F.C.A.) (unreported):

The [Immigration] 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.

The circumstances of the applicant's conviction were that he had the option of a trial. However, he elected to plead guilty, and admitted the elements of the offence, including both the actus reus and mens rea. He also had a right to appeal the conviction which right he did not exercise. In my view, the Adjudicator did not err in finding that such evidence, inter alia, was sufficient to establish that the essential ingredients of the offence in Canada had been proved in the foreign proceedings. Thus, I am of the opinion that the Adjudicator did not err in finding that there were reasonable grounds to believe, based on the evidence before her, that the foreign conviction is equivalent to one in Canadian law.

b)      Relevant Criminal Code Provisions

     The applicant also submits that the Adjudicator considered equivalency from the incorrect point in time. In 1983 and 1984, the time of the applicant's conviction, the offence of forcible confinement was defined in subsection 247(2) of the Criminal Code and provided for a term of imprisonment of five years. At the date of the deportation order, however, the offence provided for a term of imprisonment not exceeding ten years. The applicant submits that I should distinguish the case of Re Robertson and Minister of Employment and Immigration (1978), 91 D.L.R. (3d) 93 (F.C.A.), in which the Court held that it is the date of the deportation order which determines which enactment of the Criminal Code is relevant for the purposes of para.19(1)(c) of the Immigration Act, as it then read. In response, counsel for the respondent argues that subparagraph 19(1)(c.1)(i) of the Immigration Act speaks in the present tense, and that it was therefore open to the Adjudicator to conclude that the principle enunciated in Robertson applies in the case at bar.

     In Robertson, it was decided that, as the provision of the Immigration Act then read, the relevant enactment of the Criminal Code for the purposes of determining membership in an inadmissible class was that in force at the time the deportation order was made. In Robertson, the applicant had been convicted in Canada of the offence of possession over $50.00. Between the date of conviction and the date of deportation, both the definition of "possession over" and the punishment for the commission of the offence were amended. The relevant provision of the Immigration Act then read as follows:

19. (1) No person shall be granted admission if he is a member of any of the following classes:

...

(c) persons who have been convicted of an offence that, if committed in Canada, constitutes or, if committed outside Canada, would constitute an offence that may be punishable under any Act of Parliament and for which a maximum term of imprisonment of ten years or more may be imposed, except persons who have satisfied the Governor in Council that they have rehabilitated themselves and that at least five years have elapsed since termination of the sentence imposed for the offence;

In Robertson, it was held that the present tense of the word "constitutes", when read in conjunction with section 10 of the Interpretation Act, meant that the relevant enactment of the Criminal Code for the purposes of determining admissibility under the Immigration Act was that in force at the time of the making of the deportation order.

     The provision of the Immigration Act at issue in Robertson is no longer similarly phrased. Nonetheless, the meaning is, in my view, the same. In point of grammatical fact, the phrase "would constitute" is part of a present tense, contrary-to-fact conditional statement. "Would" indicates the subjunctive mood and does not refer to a past tense. The only reference to a past tense in the current subparagraph of the legislation is the phrase "have been convicted" which means that the person was, at some point in the past, actually convicted of an offence. There is no reason to distinguish the principle enunciated in Robertson from the factual situation at bar. The Adjudicator did not err in considering the punishment for the offence as of the date of the deportation order.

c)      Political nature of the offence

     The applicant argues that his conduct in the events which gave rise to his conviction in Ireland for false imprisonment "may be classified as political in nature". The provisions of subparagraph 19(1)(c.1)(i) refer to what may be referred to as "common crimes" and not political crimes. Accordingly, in his view, the offence for which he was convicted should not be considered a common law offence which could be equivalent to a crime in Canada.

     The respondent submits that the Supreme Court of Canada, in its decision respecting the applicant's claim for Convention refugee status (Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689) did not find that the offence of false imprisonment for which the applicant was convicted, was a political crime for Convention purposes or any other purpose. Moreover, the respondent notes that the applicant, in his supporting affidavit, states that the offence for which he was convicted was a common law criminal offence.

     In my view, the applicant's argument is untenable. 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. The Adjudicator did not err in finding that there was no reason to conclude that the applicant's offence should be considered a political crime and not be considered for the purposes of subparagraph 19(1)(c.1)(i) of the Immigration Act.

CANADIAN CHARTER OF RIGHTS AND FREEDOMS

     The applicant concedes that the Charter does not have extra-territorial effect and the Adjudicator is not obliged to consider the constitutionality of a foreign crime. The applicant submits, however, that the Adjudicator should not have issued a deportation order that will have the effect of violating his Charter rights, specifically the applicant's right to security of the person under section 7 of the Charter and the applicant's right not to be subjected to cruel and unusual treatment or punishment under section 12 of the Charter. The Adjudicator, in the applicant's submission, knew that the applicant had a well-founded fear of persecution in Ireland and Northern Ireland by reason of his political opinion. Since, according to British law, the applicant could be "excluded to Ireland or Northern Ireland" within three years of his entry into Great Britain, the threat of physical harm to the applicant exists should he be deported from Canada. Such a threat violates the applicant's rights to security of the person. As a result, the applicant submits that the Adjudicator erred in law in making a deportation order against the applicant.

     In the case at bar, I am of the view that the applicant's submission on this issue is premature. There is substantial jurisprudence of this Court to the effect that the jurisdiction of the Adjudicator is restricted to making a deportation order. She has no jurisdiction to determine or consider the place to which the applicant will be deported. In Chiarelli v. Canada (Minister of Employment & Immigration), [1992] 1 S.C.R. 711, the Supreme Court held that deportation was not per se unconstitutional and that deportation does not amount to cruel and unusual punishment. In both Nguyen v. Canada (Minister of Employment & Immigration) (1993), 18 Imm. L.R. (2d) 165 (F.C.A.) and Barrera v. Canada (Minister of Employment and Immigration) (1992), 99 D.L.R. (4th) 264 (F.C.A.), the Federal Court of Appeal, following the Supreme Court's decision in Chiarelli, held that there was a substantive difference between the making of a deportation order by an Adjudicator, and the actual execution of that order. Absent a decision to actually remove the applicant to a particular country and in view of the jurisprudence of this Court, I cannot conclude that the making of the deportation order was in any way a violation of the applicant's Charter rights. The applicant's submission on this point must fail.

     For the foregoing reasons, the application for judicial review is dismissed.

     Counsel for the applicant submitted three serious questions of general importance for certification pursuant to the provisions of Section 83 of the Federal Court Act. They read as follows:

1)      Does the comparison of essential elements in proving or establishing equivalency include defenses available to the person concerned under subsection 650(3) of the Criminal Code and subparagraph 2(e) of the Canadian Bill of Rights?

2)      Does subparagraph 19(1)(c.1)(i) refer to political offences?

3)      Was the decision of the Federal Court of Appeal in Robertson v. M.E.I. (1978) 91 D.L.R. (3rd) 93 correct as it is applied where there is a change in penalty between the date of a criminal conviction and the date of a deportation order when such change is to the detriment of the person concerned?

     Insofar as question no. 1 is concerned, I agree with the respondent's counsel that the question is completely answered by the decision of the Federal Court of Appeal in Li v. Minister of Citizenship and Immigration, Aug. 7, 1996, court file A-329-95. Insofar as question no. 2 is concerned, I agree that this question has been answered by the decision of the Supreme Court of Canada in Chiarelli v. Canada (1992) 16 Imm. L.R. (2d) page 1. Coming now to question no. 3, I also agree that the Chiarelli decision supra is a complete answer to this question as well.

     Accordingly, I decline to certify any of the questions suggested supra by the applicant's counsel.

COSTS

     Since no special reasons have been advanced for the award of costs, there will be no order as to costs.

     Darrel V. Heald D.J.

     JUDGE

Ottawa, Ontario

December 19, 1996