Kristjan Surko

Criminality and Serious Criminality (s.36) as a ground for inadmissibility

This Blog examines Criminality and Serious Criminality as a ground for inadmissibility, focusing on foreign nationals who have committed or been convicted of a foreign offence (as opposed to committing an offence at the point of entry or within Canada). The main legislative provisions are s. 36(1)(b)-(c) and s. 36(2)(b)-(c) of Immigration and Refugee Protection Act.

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.

Criminality

36. (2) A foreign national is inadmissible on grounds of criminality for

(a) having been convicted in Canada of an offence under an Act of Parliament punishable by way of indictment, or of two offences under any Act of Parliament not arising out of a single occurrence;

(b) having been convicted outside Canada of an offence that, if committed in Canada, would constitute an indictable offence under an Act of Parliament, or of two offences not arising out of a single occurrence that, if committed in Canada, would constitute offences under an Act of Parliament;

(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 indictable offence under an Act of Parliament; or

(d) committing, on entering Canada, an offence under an Act of Parliament prescribed by regulations.

Serious Criminality versus Criminality

The above legislative provisions need further clarification than what is offered in the statute itself.

First, the distinction between s. 36(1) and 36(2) is relevant as those persons deemed inadmissible under serious criminality s. 36(1) will be ineligible to make a refugee claim (Protecting Canada’s Immigration System Act ‘PCISA’, 2012, c. 17, s. 34).

Second, the distinction between sections 36(1)(b), s. 36(2)(b) and sections 36(1)(c) and 36(2)(c) is relevant as the latter sections 36(1)(c) and 36(2)(c) do not require a conviction, a charge, or even an arrest. These provisions do not appear to be widely used (Peter Edelmann, Update on Criminal Inadmissibility, Canadian Bar Association National Immigration Conference, Montreal: May 11 2013, at 3), however, the scope of these provisions is important to note.

Situations where these provisions may be used are where: the officer has intelligence or credible information indicating the person committed an offence, foreign authorities provide information that the person in question would be or may be charged, the person in question is subject to a warrant, or the person is fleeing prosecution from foreign authorities (Ibid).

 

 

Basic Requirements of Inadmissibility for Serious Criminality or Criminality

Section 36(1)(b) (Serious Criminality)

Important to note: an indictable offence encompasses both indictable and hybrid offences. As such, an indictable offence under the IRPA covers most of the offences in the Criminal Code (IRPA s. 36(3)).

Burden of Proof

The burden of proof rests with the Minister (Crown) to provide sufficient evidence to establish a ground of inadmissibility – in this case s.36 Criminality.

Standard of Proof

The standard of proof for the ground of inadmissibility described in Section 36, Criminality, is “reasonable grounds to believe” (IRPA, s. 33). The only exception is s. 36(1)(c), which must be established on a balance of probabilities [IRPA, s. 36(3)(d)].

“Reasonable grounds to believe” is a lower standard than a balance of probabilities. As described in Mugesera v Canada, [2005] 2 SCR 100, 2005 SCC 40, at para 114:

“…‘reasonable grounds to believe’ requires something more than mere suspicion, but less than the standard applicable to civil matters of proof on the balance of probabilities…‘reasonable grounds to believe’ will exist where there is an objective basis for the belief which is based on compelling and credible information.”

‘Reasonable grounds to believe’ applies only to findings of fact and not law.

Criminal Equivalency

To establish 36(1)(b)-(c) or 36(2)(b)-(c), the Crown must establish criminal equivalency between the convicted offence or act alleged to be punishable in Canada by Federal law.

There are a few different scenarios for how an equivalency determination could take place. The case law has provided some rules and guidance as to how an equivalency determination will take place, depending on what information is available to the courts.

According to Hill v Canada, (1987) 1 Imm LR (2d) 1 (FCA), at 9, there are three general methods for determining equivalency:

1) Compare the precise wording of the statute through documents and evidence of experts or experts in foreign law and determine the essential ingredients of the respective offences; or,

2) Examine the evidence, both oral and documentary, to ascertain whether or not the evidence was sufficient to establish that the essential ingredients of that offence in Canada had been proven in the foreign proceedings; or,

3) By a combination of one and two.

Li v Canada, [1997] 1 FC 235 (CA) at 249 describes the second approach as:

“…[useful] where there is insufficient evidence of the legal scope of foreign offence or where it appears that the comparable Canadian offence is narrower than the foreign offence. In such a case it is permissible for the adjudicator to consider evidence as to the acts usually committed by the offender and for which he was convicted abroad. This approved second way also points up the fundamental test of equivalence: would the acts committed abroad and punished there have been punishable here?”

…

“A comparison of the ‘essential elements’ of the respective offences requires a comparison of the definitions of those offences including defenses particular to those offences.”

Prior to Hill and Li, Brannson v Canada, [1981] 2 FC 141 (CA), at 145, established that the key to the inquiry is to determine the “essential elements” of each offence and be satisfied that these essential elements correspond, despite differences in wording. For example, in Brannson:

“…the definition of the foreign offence is broader than, but could contain, the definition of an offence under a Canadian statute, it may well be open to lead evidence of the particulars of the offence of which the person under inquiry was convinced…Such particulars might so narrow the scope of the conviction as to bring it in within the terms of the Canadian offence…the validity or the merits of the conviction is not an issue.”

Framework of Analysis: Determining Equivalency

Convicted Abroad – s. 36(1)(b), s. 36(2)(b)

Some foreign laws may be harder to access than others. Likewise, there may not be any foreign experts available to analyze the foreign law. As such, if a person is convicted abroad, there are two different frameworks of analysis depending on whether or not the foreign law is available. For convictions in the USA, the foreign law is most likely available.

Scenario 1: Foreign Law is Available

1) Has the person been convicted of an offence outside Canada? [(36)(1)(b), (36)(2)(b)]
If yes,

2) What are the essential elements of the foreign offence?

3) Are these same elements present in the Canadian offence as they are in the foreign offence? If yes,

4) Are there any defences available in relation to either the foreign or Canadian offence?

If essential elements and defences correspond, there is equivalency
If there are relevant defences available in the foreign jurisdiction which are not available in Canada, there is equivalency as the Canadian offence is broader than the foreign offence
If there are relevant defences under an Act of Parliament that are not available in the foreign jurisdiction, there is no equivalency, unless there is evidence based on particular facts giving rise to the conviction that the person would not have been able to raise the defence under the broader Canadian defence. Note this excludes common law defences.
Scenario 2: Foreign Law is Unavailable

If information on the specific law and its essential elements is unavailable, the courts can examine evidence as to the factual foundation for the conviction. As such, a lack of information or details concerning the actual foreign law does not end the court’s inquiry. The Immigration Division will make an independent determination of the evidence submitted to it (police reports, warrants, etc). The court / tribunal will ask:

1) What conduct did the foreign court find that the person engaged in to support the conviction?

2) Is that same conduct punishable under Act of Parliament?

This is founded in Hill (supra) where the Supreme Court recognized the possibility of establishing equivalency either by analyzing the essential elements OR by adducing evidence as to the factual foundation for the conviction.

However, this should be read with Maleki v Canada (1992), 2 Imm LR (3d) 272 (FCTD) which held that one cannot assume equivalence to an alleged foreign offence of which the essential elements are unknown – in Maleki a copy of the foreign statute or an adequate description of the foreign statute were not available and as such there were no reasonable grounds to believe that there was equivalence. Thus, while the courts may analyze the factual foundation for the conviction as an alternative to comparing the essential elements it cannot do so without at least some information on the foreign offence.

Most likely an analysis of the factual foundation for the conviction will be used as an alternative when the foreign law text is available but the court lacks the resources (i.e., an expert in foreign law) to analyze the foreign law’s essential elements.

Committed an Act (No conviction) – s. 36(1)(c), s. 36(2)(c)

1) What conduct did the evidence establish that the person engaged in outside Canada?

2) Does the conduct form an offence in the foreign jurisdiction? If yes,

3) Is that same conduct an offence and punishable under Act of Parliament?

Effect of Discharges and Pardons

As this memorandum focuses on persons who committed an offence abroad, this section will review the effect of foreign pardons on persons who have been deemed inadmissible under section 36 of the IRPA.

Foreign pardons or discharges are not automatically recognized and effective in Canada. The Federal Court of Appeal inSaini v Canada, 2001 FCA 311 at 24 reviewed the jurisprudence and laid out the test for when the courts should recognize the effect of a foreign pardon:

1) The foreign legal system as a whole must be similar to that of Canada;

2) The aim, content, and effect of the specific foreign law must be similar to Canadian law;

3) There must be no valid reason not to recognize the effect of the foreign law.

If the foreign pardon fails the Saini test it will be given no recognition or effect in Canada and the person will remain subject to inadmissibility determinations. If the foreign pardon passes the Saini test, the pardon will be recognized and effective in Canada and the person will not be deemed inadmissible for those convictions or offences for which (s)he has a foreign pardon.

Rehabilitation

Section 36(3)(c) of IRPA and sections 17 and 18 of the Immigration and Refugee Protection Regulations ‘IRPR’ set the criteria for deemed rehabilitation and when persons are eligible to apply for rehabilitation. Once a person has rehabilitation, they will not be deemed inadmissible for those convictions or offences for which they have received rehabilitation.

Section 36(3)(c) IRPA:

(c) the matters referred to in paragraphs (1)(b) and (c) and (2)(b) and (c) do not constitute inadmissibility in respect of a permanent resident or foreign national who, after the prescribed period, satisfies the Minister that they have been rehabilitated or who is a member of a prescribed class that is deemed to have been rehabilitated;

Thus, section 36(3)(c) states that persons seeking rehabilitation must satisfy the Minister that he or she is rehabilitated after the prescribed period (five years as per regulations below) OR if they are a member of one of the prescribed classes that is deemed to have been rehabilitated (classes listed in s. 18 of the IRPR below).

Section 17 and 18 IRPR:

17. For the purposes of paragraph 36(3)(c) of the Act, the prescribed period is five years

(a) after the completion of an imposed sentence, in the case of matters referred to in paragraphs 36(1)(b) and (2)(b) of the Act, if the person has not been convicted of a subsequent offence other than an offence designated as a contravention under the Contraventions Act or an offence under the Young Offenders Act; and

(b) after committing an offence, in the case of matters referred to in paragraphs 36(1)(c) and (2)(c) of the Act, if the person has not been convicted of a subsequent offence other than an offence designated as a contravention under the Contraventions Act or an offence under the Young Offenders Act.

In short, section 17 allows persons to apply to Citizenship and Immigration Canada (CIC) for a rehabilitation order if 5 years has elapsed since the completion of any sentence imposed.

18. (too long to reproduce – access here: http://www.canlii.org/en/ca/laws/regu/sor-2002-227/latest/sor-2002-227.html#sec18subsec1)

Section 18 of the IRPR, concerning what classes of persons may be deemed to be rehabilitated, is summarized below. If any of the following applies to the person in question, they are part of a class of persons deemed rehabilitated under section 18 of the IRPR:

Conclusion

The consequences of being found inadmissible are severe. It is important that you contact a competent and experienced lawyer such as Arghavan Gerami who can help you navigate the complexity of this area of the law. Gerami Law PC is prepared to defend you from a removal order on the grounds of criminal inadmissibility.

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by Kristjan Surko