Determining Whether a Criminal Offence Will Make You Inadmissible to Canada

Photo by Arenamontanus on FlickrIndividuals that have been convicted of a criminal offence in another country often wonder whether their convictions results in them being inadmissible to Canada.

An individual will be criminally inadmissible to Canada if they have been convicted outside Canada for an offence that, if committed in Canada, would constitute an indictable offence. They will also be inadmissible if they were convicted of two offences not arising out of a single occurrence that, if committed in Canada, would constitute offences under an Act of Parliament. If the offence is one that if committed in Canada would be punishable by a term of imprisonment of at least 10 years, then the individual is inadmissible for serious criminality.

As is evident from the above paragraph, an individual who has been convicted of an offence outside of Canada needs to determine what the equivalent offence would be in Canada.

The Two Step Test to Determining Equivalency

In Hill v. Canada (Federal Court of Appeal, 1987), the Federal Court of Appeal determined the approach for determining equivalency. The court stated:

… equivalency can be determined in three ways: first, by a comparison of the precise wording in each statute both through documents and, if available, through the evidence of an expert or experts in the foreign law and determining there from the essential ingredients of the respective offences; two, by examining the evidence adduced before the adjudicator, both oral and documentary, to ascertain whether or not that evidence was sufficient to establish that the essential ingredients of the offence in Canada had been proven in the foreign proceedings, whether precisely described in the initiating documents or in the statutory provisions in the same words or not; and three, by a combination of one and two.

Comparing the Words of the Statutes

It is very rare that the wording of a Canadian and a foreign statute are identical. Accordingly, what must be done is to exam the wording of the Canadian and foreign statute to determine whether there is an area of intersection between the two. (Abid v. Canada, 2010 FC 164).

Immigration officers also have a duty to examine the wording of the relevant Canadian and foreign statutes, and it is a reviewable error if an officer fails to do so (Tomchin v. Canada, 2011 FC 231).  In Brannson v Canada (Minister of Employment and Immigration),  [1981] 2 FC 141, the Federal Court described the level of analysis required as being as follows:

It is not sufficient, in my view, for the Adjudicator simply to look at the documentary evidence relating to a conviction for an offence under the foreign law. There must be some evidence to show firstly that the essential ingredients constituting the offence in Canada include the essential ingredients constituting the offence in the United States. Secondly, there should be evidence that the circumstances resulting in the charge, count, indictment or other document of a similar nature, used in initiating the criminal proceeding in the United States, had they arisen in Canada, would constitute an offence that might be punishable by way of indictment in Canada.

[I]n determining whether the offence committed abroad would be an offence in Canada under a particular Canadian statutory provision, it would be appropriate to proceed with this in mind: Whatever the names given the offences or the words used in defining them, one must determine the essential elements of each and be satisfied that these essential elements correspond. One must, of course, expect differences in the wording of statutory offences in different countries. I cannot, however, even with this in mind, escape the conclusion that the sending or transmission of “letters or circulars” is an essential element of the Canadian offence. One could not be convicted of the offence if the material transmitted or delivered were neither letters nor circulars.

Of course, just because there is an intersection between two offences does not mean that an action which is encompassed by one offence would be encompassed by the other.

Examples

Section 140.20 – New York Penal Code: Burglary A person is guilty of burglary in the third degree when he knowingly enters or remains unlawfully in a building with intent to commit a crime therein. Section 349(1) – Criminal Code of Canada: Being Unlawfully in a Dwelling-House Every person who, without lawful excuse, the proof of which lies on that person, enters or is in a dwelling-hose with intent to commit an indictable offence in it is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or of an offence punishable on summary conviction.

These two offences do not necessarily equate because the foreign offence is broader than the Canadian one.  The word “building” is broader than “dwelling-house,” and the intention to commit a crime is broader than the requirement to commit an indictable offence.

Section 28.04 – Texas Penal Code: Reckless Damage or Destruction A person commits an offence if, without the effective consent of the owner, he recklessly damages or destroys property of the owner. Section 403(1)(a) – Criminal Code of Canada: Mischief Everyone commits mischief who wilfully destroys or damages property.

These two offences do not necessarily equate because the foreign offence is broader than the Canadian one.  The word “recklessly” is broader than “wilfully.”

Comparing the Elements of the Offence

The second step involves an analysis of whether the facts giving rise to a foreign national’s conviction abroad would give rise to the offence of which there is an intersection. For there to be an equivalency, the essential ingredients of the Canadian offence had to be proven in the foreign proceeding.

There Needs to be a Conviction

In Kotai v. Canada, 2015 FC 511, the Immigration Division stated:

The primary evidence today relied on to establish that Mr. Kotai did receive a conviction in Hungary would be his statements made at the port of entry officials on the 23rd of November 2012, as well as his oral testimony today. Outside of these statements there is no objective, independent and credible evidence establishing that Mr. Kotai was indeed convicted and on what date. There is no certificate of conviction in the Minister’s package; there is no record of the judgment of the sentencing body or court in the Minister’s package. There are no police reports providing independent information about the occurrence that led to the conviction and as well the applicable foreign statute under which Mr. Kotai would have been convicted is not provided. And in that sense I’m referring to a country-issued document showing that applicable foreign statute.

However the Minister, through his own research, and I say his, because the Minister is a male, zeroed in on the likely statute that was used to convict Mr. Kotai, which would be the Hungarian Criminal Code and has zeroed in on Section 170(1) of that Code as the applicable provision.

There are some issues, for sure. The Minister encountered Mr. Kotai on the 21st of November 2012 and would have had eight months between then and now to collect the kind of information that is required to make a persuasive argument about Mr. Kotai’s inadmissibility. However, what I find is that there is next to nothing in the disclosure package confirming the existence of a conviction for Mr. Kotai and there is also no information about efforts made by the Minister in that regard.

The question therefore is, can the Tribunal rely solely on the statements made by Mr. Kotai at the port of entry and today?

In spite of all that I have said my answer to this will be in the affirmative.

[…]

Given what is before the Division today, I would find that the evidence from Mr. Kotai himself that he received a conviction for assault causing light bodily harm is credible and compelling information and that the Division can rely upon that information, in spite of the inability of the Minister to provide other corroboratory pieces of evidence.

A point which should be made clear is that the threshold to establish the allegation relating to serious criminality outside Canada is reasonable grounds to believe, which is quite a low standard. It is a bona fide belief in a serious possibility based on credible evidence.

The panel found that Mr. Kotai’s evidence to be credible and based on what he stated to the port of entry officials and what he has stated today, this court can hold that he did receive a conviction.

[Emphasis added] (Decision, Certified Tribunal Record, pp. 66 – 67)

The Federal Court found that this time of speculation was improper, and that “to make a comparison to a conviction in Canada, surely there must be some verifiable evidence advanced that a foreign state’s action can be considered to be a “conviction” as that word is understood in Canada.”

Re-Trying the Criminal Matter

In Li v Canada (Minister of Citizenship and Immigration), [1997] 1 FC 235, the Federal Court of Appeal found that Canadian immigration legislation 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.  As such, Citizenship and Immigration Canada will generally not assess whether there would have been a conviction in Canada.  Svecz v. Canada (Public Safety and Emergency Preparedness), 2016 FC 003 is a good example of the application of the principle, as the Federal Court declined to re-assess the evidence before a Hungarian court where the applicant was convicted of fraud, and where he argued that it was unlikely that a Canadian court would have convicted him of fraud, despite the two statutes being similar. 

Defences

When determining equivalences it is also important to examine whether there are any defenses available in Canada that may not have been available in a foreign national’s home country.  For example, the Conservative Government of Canada’s 2012  Citizen’s Arrest and Self-defence Act, S.C. 2012 c. 9, amended the Criminal Code s. 34, which now states:

34. (1) A person is not guilty of an offence if

(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

(c) the act committed is reasonable in the circumstances.

Marginal note:Factors

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:

(a) the nature of the force or threat;

(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;

(c) the person’s role in the incident;

(d) whether any party to the incident used or threatened to use a weapon;

(e) the size, age, gender and physical capabilities of the parties to the incident;

(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;

(f.1) any history of interaction or communication between the parties to the incident;

(g) the nature and proportionality of the person’s response to the use or threat of force; and

(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

Conclusion

As is evident from the above test, determining what the Canadian equivalent of a foreign offense is, and whether the facts giving rise to the foreign conviction would result in a conviction of that Canadian equivalent offense, requires an understanding of Canadian criminal law. You need to have an understanding of the Criminal Code, as well as other statutes which contain federal offenses. You should be familiar with the terms actus reus, mens rea, the terms ‘indictable offense’, and ‘summary offense’, as well as basic sentencing principles.