Date: 20090828
Docket: IMM-1014-09
Citation: 2009 FC 854
Ottawa, Ontario, August 28, 2009
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
ASITKUMAR
HARKI GANDHI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act), of a decision of
the Immigration Appeal Division of the Immigration and Refugee Board (the
Board) dated February 4, 2009, where the Board decided that the
Applicant was ineligible to sponsor pursuant to subparagraph 133(1)(e)(ii)
of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the
Regulations), having been convicted of an offence which constituted an attempt
or threat of bodily harm against his wife.
Issues
[2]
This
application raises the following issues:
a) Did
the Board err in finding that subparagraph 133(1)(e)(ii) of the
Regulations bars sponsors from being approved for family class sponsorships
when they have engaged in actions which constitute a threat of bodily harm
against a family member, notwithstanding there being no conviction in this
regard?
b) Did
the Board err in its assessment of the facts in the case at bar?
[3]
The
application for judicial review shall be allowed.
Factual Background
[4]
The
Applicant, Asitkumar Kharki Gandhi, was born on January 20, 1975 in India and
became a permanent resident of Canada on May 14, 2002. The Applicant’s father,
Harkishan Gandhi, was born on May 16, 1945 in India and his
spouse Hiragauri Gandhi was born on October 25, 1948 in India. The
Applicant and his wife Megha Gandhi have a daughter, Diya Gandhi, born July 25,
2005 and they were expecting their second child in March or April 2009.
[5]
Pursuant
to subsection 63(1) of the Act, the Applicant appealed a refusal to issue a
permanent resident visa to his father, Harkishan Gandhi and his father’s
dependent spouse. The refusal had been made on February 20, 2007 because the
Applicant had been convicted on July 25, 2006 of assault on his wife
under section 266 of the Criminal Code of Canada, R.S.C., 1985, c. C-46.
Consequently, he did not meet the requirements to sponsor his parents as
stipulated by subparagraph 133(1)(e)(ii) of the Regulations.
[6]
The
Applicant submits he applied to sponsor his parents before the conviction, on
January 27, 2005, but the Respondent argues that the Applicant applied to
sponsor his parents subsequent to his conviction.
[7]
The
Applicant appealed the decision to the Board based on two arguments: the
refusal was not legally valid and there were sufficient humanitarian and
compassionate (H&C) factors to warrant granting special relief. The Board
dismissed the appeal on February 4, 2009 and this application relates to the
Board’s decision.
Impugned Decision
[8]
The
Board found the refusal was valid in law and the Applicant had not succeeded in
demonstrating the existence of sufficient H&C considerations so as to
warrant special relief.
[9]
The
Applicant challenged the legal validity of the refusal on two grounds. Firstly,
the “bodily harm” required under section 133 of the Regulations was not present
and secondly, the victim in the assault was not his wife but his wife’s aunt.
The Applicant asserts the wife’s aunt is not covered by section 133 of the
Regulations.
[10]
The
Applicant argued the requirement for “bodily harm” in section 133 was not met
because he had not actually swung his stick at the victim and he did not strike
her. The Board found the wording of subparagraph 133(1)(e)(ii) extends
to include an attempt or threat to cause bodily harm but does not require that
bodily harm actually result from the assault. The Applicant testified his
intention was to threaten his wife’s aunt that he would strike her if she did
not surrender the baby to him. This threat was carried out using a five-foot piece
of wood (2 x 2), which, in the opinion of the Board, constitutes a threat to
cause bodily harm.
[11]
There
was a discrepancy between the police report and the oral evidence at the
hearing regarding who was the intended victim of the attack. One version stated
the aunt was the victim whereas the other stated the Applicant’s wife as the
victim. According to the Applicant, the victim was his wife’s aunt, but the
Board noted the fact that the Applicant was charged with and convicted of
assault on his wife, which is the version confirmed by the police report. The
Board concurs with the Respondent’s view that the fact the aunt was holding the
Applicant’s infant daughter in her arms at the time of the incident when the
Applicant wielded a stick (as per the version offered in testimony by the
Applicant) also posed a threat to the Applicant’s infant daughter. The Board
concludes that threatening to strike his wife in the presence of his infant
daughter demonstrates, on the part of the Applicant, a blatant disregard for
his daughter’s safety. As the Applicant was in fact charged with and convicted
of assault on his wife, the Applicant’s actions fall within the ambit of subparagraph
133(1)(e)(ii) and the Board concludes the refusal is valid in law.
[12]
On
that day, August 10, 2005, the Applicant was charged with assault with a
weapon, pursuant to section 267 of the Criminal Code and he was required
to not reside with his spouse. On July 25, 2006, the Applicant pled guilty to
assault against his wife (pursuant to section 266 of the Criminal Code)
and he received a suspended sentence and one year probation. He returned to
live with his spouse.
[13]
The
Applicant argues that even if the refusal is valid in law, the appeal should
nevertheless be granted on the basis of H&C considerations. Consequently,
the Board had to determine whether, taking into account the best interests of
the child directly affected by the decision, sufficient H&C considerations
exist so as to warrant the granting of special relief in light of all the
circumstances of the case, pursuant to paragraph 67(1)(c) of the Act.
[14]
Under
the former Immigration Act, R.S.C. (1985), ch. I-2, the criteria to
determine if special relief should be granted for H&C considerations in a
case such as this were established in Chirwa v. Canada (Minister of Manpower
and Immigration) (1970), 4 A.I.C. 338 (I.A.B.) at page 350. The Board
considered the relationship of the sponsor to the sponsorship applicants, the
reasons for the sponsorship and the overall situation of both the sponsor and
his parents. In light of the Applicant’s criminal history, the Board also
considered the seriousness of the offence, whether or not there was evidence of
remorse or rehabilitation and evidence of good character. The Board also
considered the best interests of the Applicant’s child as well as the
Applicant’s grandchildren who reside with them in India, as these
are children who will be directly affected by this decision. These
considerations are not exhaustive but do represent some of the appropriate
considerations for the exercise of special relief.
[15]
After
reviewing the sequence of events and the particular circumstances of this case,
the Board found there were insufficient H&C factors to warrant granting
special relief.
[16]
Regarding
the incident leading to the charge and conviction, in keeping with her cultural
traditions, the Applicant’s wife went to recuperate with family members at her
aunt’s house following the difficult birth of their child. The Applicant
disapproved of this decision and he did not visit his wife while she was
recuperating, claiming he was too busy with his new job and too nervous to
drive to see her. The Board acknowledged this was a stressful time for the
Applicant and his wife who were first-time parents.
[17]
The
Applicant’s wife recuperated at her aunt’s home for approximately ten days and
the Applicant called his wife after a week because he wanted to bring her home.
When he arrived at the aunt’s house, his wife was not feeling well and explained
she wanted to remain where she was. The Applicant argued with the aunt and he
then put the infant into a car seat. The aunt followed the Applicant and
removed the child from him. The Applicant responded by removing a five-foot
piece of wood from the trunk of his car which he claims he wielded at the aunt,
threatening to strike her if she did not return his child to him.
[18]
The
Board considers that the Applicant' s threat to strike his wife’s aunt while
she was carrying the child in her arms is a negative factor as it demonstrates
a blatant disregard for the safety of his family and most importantly, his
infant child. It does not retain the Applicant’s version of the events and
concludes the victim of his attack was in fact his wife.
[19]
The
Applicant explained he disapproved that his child was living in a basement apartment
because he felt it was inappropriate for a newborn and he stated he had made
arrangements for a nurse to provide care at his own home. The Applicant
testified he hired the nurse when his wife was discharged from the hospital for
one to two days. The Applicant then revised his testimony and stated he had
hired the nurse three to four days after his wife was discharged from the hospital.
The Board does not find the Applicant credible on this point as it is standard
procedure for the hospital to offer such nursing care so the Applicant did not
actually make any. Furthermore, when a nurse went to the Applicant’s home, his
wife was not there and when the hospital called the Applicant, he informed them
that his wife was at her aunt’s home. The Board notes that if he was concerned
by the environment in which his child was living, he could have asked the nurse
to look in on her at the aunt’s home. When questioned as to why he did not make
such arrangements, the Applicant explained he lived in Toronto while the aunt
lives in Brampton. The Board
believes the Applicant is entitled to the benefit of the doubt on this point.
[20]
Subsequent
to the assault, the Applicant complied with the probation order and completed
the requisite anger management programs. In a letter dated October 12, 2007,
the Applicant was informed he was eligible for Phase II. Asked why he did not
complete any further courses, the Applicant stated it had never been suggested
to him. The Board concludes the Applicant only completed the anger management
course as required but he had no desire to attend any further courses on his
own initiative. When questioned, the Applicant’s wife had difficulty providing
concrete examples of ways in which her husband had changed following completion
of the anger management program but she testified he was able to walk away from
arguments.
[21]
The
Applicant’s wife returned to live with him in July 2006 after the end of his
probation. The relationship between the Applicant and his wife is a positive
element, as she has put this incident behind her and has forgiven him.
[22]
Despite
having expressed remorse for his actions, the Board notes that the Applicant
testified he never apologized to his wife’s aunt for the incident, although he
has had the opportunity to see her at family functions. The Applicant’s failure
to apologize to his wife’s aunt is not indicative of sincere and significant
remorse for his actions and this constitutes a negative factor in this appeal.
[23]
The
Board acknowledges the Applicant has no other charges or convictions and
the incident in question does appear to be an isolated event as a positive
factor.
[24]
The
Applicant and his wife work split shifts in order to alternate caring for their
child. Consequently, they only spend time together with their child on
weekends. The Applicant claims if his parents are allowed to come to Canada, they could
assist with childcare and allow the Applicant and his wife to spend more time
together with their children and also allow for a more flexible work schedule.
The Board admits this would facilitate their lives and might be in the best
interests of the children, but the Board notes the Applicant’s situation is not
unique. The Board does not find these circumstances to be extenuating, but
acknowledges that to deprive the Applicant of the assistance which could be
offered by his parents does impose a certain hardship on him.
[25]
The
Applicant’s parents are semi-retired and have family living in India, including
one son who lives with them. The Applicant’s parents have young grandchildren
who live in India and their
best interests are an equally valid consideration in this appeal. If the
Applicants were to come to Canada, these grandchildren would be deprived of
the presence of their grandparents and consequently, their best interests are
served by the grandparents remaining in India.
[26]
The
Applicant last saw his parents in February 2008 when he visited them for a month
on the occasion of his wife’s brother’s wedding. He speaks to his parents on
the telephone two or three times a week. The Board concludes there is no reason
why the Applicant cannot maintain the same relationship with his parents in the
future. The Board concludes the Applicant has not presented any evidence he
would suffer undue hardship if his appeal were to be dismissed. Childcare needs
are an issue with which many couples are confronted, and while it would
unquestionably be beneficial for the Applicant to have access to free childcare
and even more beneficial for the grandchildren to benefit from their presence,
these considerations are not sufficient to overcome the negative elements of
this case.
[27]
The
Applicant may also choose to seek a pardon for his actions and subsequently
reapply to sponsor his parents. The Board acknowledges this entails a certain
delay in being able to sponsor his parents, but the fact of the matter is that
this delay is attributable to the Applicant’s own actions. The Board considers
the Applicant’s actions, which constitute domestic violence, are very serious
in nature and this factor is a negative consideration.
[28]
The
Board considers that the Applicant complied with his probation order and completed
the requisite anger management course. Nevertheless, the Board recognizes that
despite his expressions of remorse, the Applicant never apologized to his
wife’s aunt. This also is a negative consideration as it indicates he is not
truly remorseful. In his testimony before the Board, the Applicant sought to
minimize his actions although he never denied responsibility for them.
[29]
Based
on the evidence and testimonies, the Board is of the view that the Applicant
has not succeeded in meeting his burden as he has not presented a compelling case
so as to warrant the exercise of the Board’s discretion to provide relief on H&C
grounds. The appeal is dismissed.
Relevant Legislation
[30]
The
relevant legislative provisions are contained in Appendix A at the end of this
document.
Did
the Board err in finding that subparagraph 133(1)(e)(ii) of the Regulations bars
sponsors from being approved for family class sponsorships when they have
engaged in actions which constitute a threat of bodily harm against a family
member, notwithstanding there being no conviction in this regard?
Standard of Review
[31]
The
Applicant submits that errors of law are generally covered by the correctness
standard (Mugesera v. Canada (Minister of
Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100 at paragraph
37). In the case at bar, the Board clearly erred in law in incorrectly applying
the legal standard against which it determined the Applicant was caught by subparagraph
133(1)(e)(ii) of the Act. Accordingly, the Board’s decision in this
regard cannot stand.
[32]
The
Respondent agrees that the standard of review on questions of law is
correctness and the standard of review on questions of fact is reasonableness.
The Respondent submits that the issue of the legal validity of the refusal is a
question of law and the Board correctly interpreted the law.
[33]
The
issue here involves the way the Board interpreted subparagraph 133(1)(e)(ii)
of the Regulations in relation to the Criminal Code. The Applicant
argues that the interpretation should be restrictive as the respondent maintains
that it should be broad.
[34]
Interestingly
as this debate may be, I leave this question for another day because I am of
the opinion that this matter should be sent back for a redetermination for the
following reasons.
Did the Board err in its
assessment of the facts in the case at bar?
Standard of Review
[35]
The
standard of review of an H&C matter has been held to be reasonableness (Ahmad
v. Canada (Minister of
Citizenship and Immigration), 2008 FC 646, 167 A.C.W.S. (3d) 974).
Given the highly discretionary nature of the decision, the Court must accord
deference to the factual findings and weighing of factors.
[36]
The
issue of the assessment of H&C grounds is a question of fact (Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paragraph 53; Khosa
v. Canada (Minister of
Citizenship and Immigration), 2009 SCC 12 at paragraphs 59-62).
[37]
I
find that the Board committed reviewable errors which are determinative.
[38]
First,
the Board writes at paragraph 9 of the decision:
… The tribunal concurs with the Minister's
counsel's view that the fact that the aunt was holding the appellant’s infant
daughter in her arms at the time of the incident when the appellant wielded a
stick (as per the version offered in testimony by the appellant) also posed a
threat to the appellant's infant daughter. The tribunal concludes that threatening
to strike his wife in the presence of his infant daughter, demonstrates, on the
part of the appellant, a blatant disregard for his daughter's safety. …
[39]
This
Court does not know who was considered by the Board as the victim of the
assault, the aunt or the wife. In this particular instance, the aunt was the Applicant’s
mother‑in-law's sister in law.
[40]
Second,
the Board concluded that the Applicant had not presented a compelling case so as
to warrant the exercise of the Board's discretion to provide relief on H&C
grounds (paragraph 26 of the decision). This conclusion relies mainly on the
fact that the Applicant had no desire to attend any further courses on anger
management programs and also on the fact that the Applicant had never
apologized to his wife's aunt (paragraphs 17 and 19 of the decision).
[41]
Those
determinations are not supported by the evidence. Contrary to the Board's
assertion, the Applicant never said that he had no desire to attend any further
courses. He testified that he completed the Counterpoints Partner Assault
Response Program (Phase I) and nobody suggested that he enter Phase II. Even
his probation officer never made that suggestion (page 304, tribunal's record).
[42]
On
the question of remorse, the transcript shows that he apologized to the aunt at
the Court hearing and also at the time of the incident (pages 272, 246, 270).
[43]
The
Court's intervention is warranted.
[44]
No
questions for certification were proposed and none arise in this case.
JUDGMENT
THIS COURT
ORDERS that the application for
judicial review be allowed. The matter is remitted back to a different Board
for redetermination. No question is certified.
“Michel
Beaudry”
APPENDIX A
Relevant Legislation
Immigration
and Refugee Protection Act,
S.C. 2001, c. 27:
|
Serious
criminality
36. (1) A
permanent resident or a foreign national is inadmissible on grounds of
serious criminality for
(a) having
been convicted in Canada of an offence under an Act of Parliament
punishable by a maximum term of imprisonment of at least 10 years, or of an
offence under an Act of Parliament for which a term of imprisonment of more
than six months has been imposed;
(b) having
been convicted of an offence outside Canada that, 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; or
(c) committing
an act outside Canada that is an offence in the place where it was committed
and that, 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.
|
Grande
criminalité
36. (1) Emportent interdiction de
territoire pour grande criminalité les faits suivants :
a)
être déclaré coupable au Canada d’une infraction à une loi fédérale
punissable d’un emprisonnement maximal d’au moins dix ans ou d’une infraction
à une loi fédérale pour laquelle un emprisonnement de plus de six mois est
infligé;
b)
être déclaré coupable, à l’extérieur du Canada, d’une infraction qui, commise
au Canada, constituerait une infraction à une loi fédérale punissable d’un
emprisonnement maximal d’au moins dix ans;
c)
commettre, à l’extérieur du Canada, une infraction qui, commise au Canada, constituerait
une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au
moins dix ans.
|
|
Disposition
66. After considering the appeal of a
decision, the Immigration Appeal Division shall
(a) allow the
appeal in accordance with section 67;
(b) stay the
removal order in accordance with section 68; or
(c) dismiss
the appeal in accordance with section 69.
|
Décision
66. Il est statué sur l’appel
comme il suit :
a)
il y fait droit conformément à l’article 67;
b)
il est sursis à la mesure de renvoi conformément à l’article 68;
c)
il est rejeté conformément à l’article 69.
|
|
Appeal
allowed
67. (1) To allow an appeal, the
Immigration Appeal Division must be satisfied that, at the time that the
appeal is disposed of,
(a) the
decision appealed is wrong in law or fact or mixed law and fact;
(b) a
principle of natural justice has not been observed; or
(c) other than
in the case of an appeal by the Minister, taking into account the best
interests of a child directly affected by the decision, sufficient
humanitarian and compassionate considerations warrant special relief in light
of all the circumstances of the case.
|
Fondement de l’appel
67. (1)
Il est fait droit à l’appel sur preuve qu’au moment où il en est disposé :
a) la
décision attaquée est erronée en droit, en fait ou en droit et en fait;
b) il
y a eu manquement à un principe de justice naturelle;
c)
sauf dans le cas de l’appel du ministre, il y a — compte tenu de l’intérêt
supérieur de l’enfant directement touché — des motifs d’ordre humanitaire
justifiant, vu les autres circonstances de l’affaire, la prise de mesures
spéciales.
|
Immigration
and Refugee Protection Regulations, SORS/2002-227:
|
Requirements
for sponsor
133. (1)
A sponsorship application shall only be approved by an officer if, on the day
on which the application was filed and from that day until the day a decision
is made with respect to the application, there is evidence that the sponsor
(e) has not
been convicted under the Criminal Code of
(ii) an
offence that results in bodily harm, as defined in section 2 of the Criminal
Code, to any of the following persons or an attempt or a threat to commit
such an offence against any of the following persons, namely,
(A) a relative
of the sponsor, including a dependent child or other family member of the
sponsor,
(B) a relative
of the sponsor's spouse or of the sponsor's common-law partner, including a
dependent child or other family member of the sponsor's spouse or of the
sponsor's common-law partner, or
(C) the conjugal
partner of the sponsor or a relative of that conjugal partner, including a
dependent child or other family member of that conjugal partner;
|
Exigences :
répondant
133. (1) L’agent n’accorde la
demande de parrainage que sur preuve que, de la date du dépôt de la demande
jusqu’à celle de la décision, le répondant, à la fois :
e) n’a
pas été déclaré coupable, sous le régime du Code criminel :
(ii)
d’une infraction entraînant des lésions corporelles, au sens de l’article 2
de cette loi, ou d’une tentative ou menace de commettre une telle infraction,
à l’égard de l’une ou l’autre des personnes suivantes :
(A) un
membre de sa parenté, notamment un enfant à sa charge ou un autre membre de
sa famille,
(B) un
membre de la parenté de son époux ou de son conjoint de fait, notamment un
enfant à charge ou un autre membre de la famille de son époux ou de son
conjoint de fait,
(C)
son partenaire conjugal ou un membre de la parenté de celui-ci, notamment un
enfant à charge ou un autre membre de la famille de ce partenaire conjugal;
|
Criminal
Code of Canada, R.S.C., 1985, c. C-46:
|
Uttering
threats
264.1 (1)
Every one commits an offence who, in any manner, knowingly utters, conveys or
causes any person to receive a threat
(a) to cause
death or bodily harm to any person;
(b) to burn,
destroy or damage real or personal property; or
(c) to kill,
poison or injure an animal or bird that is the property of any person.
Punishment
(2) Every one
who commits an offence under paragraph (1)(a) is guilty of
(a) an
indictable offence and liable to imprisonment for a term not exceeding five
years; or
(b) an offence
punishable on summary conviction and liable to imprisonment for a term not
exceeding eighteen months.
Idem
(3) Every one
who commits an offence under paragraph (1)(b) or (c)
(a) is guilty
of an indictable offence and liable to imprisonment for a term not exceeding
two years; or
(b) is guilty
of an offence punishable on summary conviction.
|
Proférer
des menaces
264.1 (1) Commet une infraction
quiconque sciemment profère, transmet ou fait recevoir par une personne, de
quelque façon, une menace :
a) de
causer la mort ou des lésions corporelles à quelqu’un;
b) de
brûler, détruire ou endommager des biens meubles ou immeubles;
c) de
tuer, empoisonner ou blesser un animal ou un oiseau qui est la propriété de
quelqu’un.
Peine
(2)
Quiconque commet une infraction prévue à l’alinéa (1)a) est coupable :
a)
soit d’un acte criminel et passible d’un emprisonnement maximal de cinq ans;
b)
soit d’une infraction punissable sur déclaration de culpabilité par procédure
sommaire et passible d’un emprisonnement maximal de dix-huit mois.
Idem
(3)
Quiconque commet une infraction prévue à l’alinéa (1)b) ou c) est coupable :
a)
soit d’un acte criminel et passible d’un emprisonnement maximal de deux ans;
b)
soit d’une infraction punissable sur déclaration de culpabilité par procédure
sommaire.
|
|
Assault
265. (1)
A person commits an assault when
(a) without
the consent of another person, he applies force intentionally to that other
person, directly or indirectly;
(b) he
attempts or threatens, by an act or a gesture, to apply force to another
person, if he has, or causes that other person to believe on reasonable
grounds that he has, present ability to effect his purpose; or
(c) while
openly wearing or carrying a weapon or an imitation thereof, he accosts or
impedes another person or begs.
Application
(2) This
section applies to all forms of assault, including sexual assault, sexual
assault with a weapon, threats to a third party or causing bodily harm and
aggravated sexual assault.
Consent
(3) For the
purposes of this section, no consent is obtained where the complainant
submits or does not resist by reason of
(a) the
application of force to the complainant or to a person other than the
complainant;
(b) threats or
fear of the application of force to the complainant or to a person other than
the complainant;
(c) fraud; or
(d) the
exercise of authority.
Accused’s belief as to consent
(4) Where an
accused alleges that he believed that the complainant consented to the
conduct that is the subject-matter of the charge, a judge, if satisfied that
there is sufficient evidence and that, if believed by the jury, the evidence
would constitute a defence, shall instruct the jury, when reviewing all the
evidence relating to the determination of the honesty of the accused’s
belief, to consider the presence or absence of reasonable grounds for that
belief.
|
Voies
de fait
265. (1) Commet des voies de fait,
ou se livre à une attaque ou une agression, quiconque, selon le cas :
a)
d’une manière intentionnelle, emploie la force, directement ou indirectement,
contre une autre personne sans son consentement;
b)
tente ou menace, par un acte ou un geste, d’employer la force contre une
autre personne, s’il est en mesure actuelle, ou s’il porte cette personne à
croire, pour des motifs raisonnables, qu’il est alors en mesure actuelle
d’accomplir son dessein;
c) en
portant ostensiblement une arme ou une imitation, aborde ou importune une
autre personne ou mendie.
Application
(2)
Le présent article s’applique à toutes les espèces de voies de fait, y
compris les agressions sexuelles, les agressions sexuelles armées, menaces à
une tierce personne ou infliction de lésions corporelles et les agressions
sexuelles graves.
Consentement
(3)
Pour l’application du présent article, ne constitue pas un consentement le
fait pour le plaignant de se soumettre ou de ne pas résister en raison :
a)
soit de l’emploi de la force envers le plaignant ou une autre personne;
b)
soit des menaces d’emploi de la force ou de la crainte de cet emploi envers
le plaignant ou une autre personne;
c)
soit de la fraude;
d)
soit de l’exercice de l’autorité.
Croyance
de l’accusé quant au consentement
(4)
Lorsque l’accusé allègue qu’il croyait que le plaignant avait consenti aux
actes sur lesquels l’accusation est fondée, le juge, s’il est convaincu qu’il
y a une preuve suffisante et que cette preuve constituerait une défense si
elle était acceptée par le jury, demande à ce dernier de prendre en
considération, en évaluant l’ensemble de la preuve qui concerne la
détermination de la sincérité de la croyance de l’accusé, la présence ou
l’absence de motifs raisonnables pour celle-ci.
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Assault
266. Every one who commits an assault is
guilty of
(a) an
indictable offence and is liable to imprisonment for a term not exceeding
five years; or
(b) an offence
punishable on summary conviction.
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Voies
de fait
266. Quiconque commet des voies de
fait est coupable :
a)
soit d’un acte criminel et passible d’un emprisonnement maximal de cinq ans;
b)
soit d’une infraction punissable sur déclaration de culpabilité par procédure
sommaire.
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Assault
with a weapon or causing bodily harm
267. Every one who, in committing an
assault,
(a) carries,
uses or threatens to use a weapon or an imitation thereof, or
(b) causes
bodily harm to the complainant,
is guilty of
an indictable offence and liable to imprisonment for a term not exceeding ten
years or an offence punishable on summary conviction and liable to
imprisonment for a term not exceeding eighteen months.
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Agression
armée ou infliction de lésions corporelles
267. Est coupable soit d’un acte
criminel et passible d’un emprisonnement maximal de dix ans, soit d’une
infraction punissable sur déclaration de culpabilité par procédure sommaire
et passible d’un emprisonnement maximal de dix-huit mois quiconque, en se
livrant à des voies de fait, selon le cas :
a)
porte, utilise ou menace d’utiliser une arme ou une imitation d’arme;
b)
inflige des lésions corporelles au plaignant.
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