 |
||||||||
 |
 |
 |
 |
 |
||||
|
||||||||
|
||||||||
 |
||||||||||||||||||||||||||||||||||||||
 Source: http://reports.fja.gc.ca/fc/src/shtml/2002/pub/v1/2002fc29623.shtml Reference: [2002] 1 F.C. 200  A-121-00 2001 FCA 311 The Minister of Citizenship and Immigration (Appellant) v. Parminder Singh Saini (Respondent) Indexed as: Canada (Minister of Citizenship and Immigration)v. Saini (C.A.) Court of Appeal, Linden, Sharlow and Malone JJ.A. --Toronto, September 17; Ottawa, October 19, 2001. Citizenship and Immigration -- Exclusion and Removal -- Inadmissible persons -- Appeal from Motions Judge's decision, purporting to follow Canada (Minister of Employment and Immigration) v. Burgon, holding deportation order could not be executed -- Respondent convicted in Pakistan of hijacking airliner, later pardoned -- Deportation order issued based on Immigration Act, s. 19(1)(c.1)(i) excluding persons convicted outside Canada of offence punishable in Canada by maximum prison term of 10 years or more -- Motions Judge misinterpreted Burgon -- Burgon not holding foreign law superceding Canadian immigration law -- Canadian courts may consider effects of foreign laws in appropriate circumstances -- Foreign pardon recognized only if establishing: (1) similarity of foreign legal system to Canadian legal system; (2) similarity of aim, content, effect of specific legislation to corresponding Canadian law; (3) no valid reason not to respect effect of foreign law -- No evidence supporting Motions Judge's assumption Pakistani legal system similar to Canadian legal system -- No evidence of similarity of aim, content of Canadian, Pakistani law re: pardons -- In any event, aircraft hijacking such serious, abhorrent crime, Court not required to respect foreign pardon of such offence -- Foreign pardons should be recognized only in rare situations where unjust not to give effect to similar country's similar laws. Conflict of Laws -- Appeal from Motions Judge's decision holding deportation order based on Immigration Act, s. 19(1)(c.1)(i) could not be executed -- S. 19(1)(c.1)(i) excluding persons convicted outside Canada of offence punishable in Canada by maximum prison term of 10 years or more -- Respondent convicted in Pakistan of hijacking airliner, later pardoned -- Foreign law question of fact -- Court will only interfere with finding of fact if palpable, overriding error -- Motions Judge finding, as fact, Pakistani pardon operated under Pakistani law to erase negative consequences of conviction -- No palpable overriding error in finding of fact -- Foreign pardon, discharge given same effect as Canadian pardon, such that individual not considered convicted or subject to disqualifications resulting from conviction in regards to s. 19(1)(c.1)(i) only if establishing: (1) foreign legal system generally similar to Canadian system; (2) aim, content, effect of specific foreign legislation similar to corresponding Canadian law; and (3) no valid reason not to respect pardon granted in foreign jurisdiction -- Respondent not demonstrating legal system of Pakistan, Pakistan pardoning provisions, similar to Canadian legal system, specific legislation -- In any event, aircraft hijacking such serious, abhorrent crime, Court not required to respect foreign pardon -- Foreign pardons should be recognized only in rare situations where unjust not to give effect to similar country's similar laws. This was an appeal from a Motions Judge's decision holding that a deportation order could not be executed. The respondent is a citizen of India who was convicted in Pakistan of hijacking an Indian airliner. Respondent was originally sentenced to death, but his sentence was later commuted to life imprisonment. After serving 10 years, he was granted parole and ordered to leave Pakistan. He came to Canada, claiming refugee status. Upon learning the details of the respondent's situation from Indian officials, authorities took steps to obtain a deportation order based on Immigration Act, subparagraph 19(1)(c.1)(i), which prohibits the admission of any person who there are reasonable grounds to believe has been convicted outside Canada of an offence that, if committed in Canada, would constitute an offence that may be punishable by a maximum term of imprisonment of 10 years or more. While the respondent was in custody in Canada, he was pardoned by the Pakistani President. In light of this pardon, the respondent applied for judicial review of the deportation order, contending that he had not been "convicted" of an offence because the conviction was erased by the pardon. The Motions Judge held that under Canadian case law, as declared in Canada (Minister of Employment and Immigration) v. Burgon, a pardon cleanses the individual of any stain that a conviction caused. He held that the Pakistani judicial system was "somewhat similar" to the Canadian system and that it would constitute a "grave assault on the Canadian sense of justice" if the Canadian immigration department would deem a person convicted of an offence when the person is deemed not to be convicted of the same offence in the jurisdiction where the offence was allegedly committed. The following questions were certified: (1) whether a Canadian court is bound by a pardon granted by another state jurisdiction, in the absence of evidence as to the motivating considerations; (2) whether a pardon "on conviction/term of imprisonment already undergone" erases the conviction and consequences, and (3) whether the nature of the offence of hijacking provides a solid rationale to depart from the principle that a pardon granted by another jurisdiction whose laws are based on a similar foundation as in Canada, be recognized in Canada. The issue was whether the respondent could be deported from Canada on the basis of subparagraph 19(1)(c.1)(i). Held, the appeal should be allowed. The Motions Judge misinterpreted the principle established by this Court in Canada (Minister of Employment and Immigration) v. Burgon. Subparagraph 19(1)(c.1)(i) demonstrates that Canadian immigration law does not necessarily exclude all persons convicted of a crime that is considered serious in a foreign jurisdiction; a conviction must also be considered serious in Canada for a person to be denied admission on that basis. Similarly, an offence considered trivial abroad may be considered serious by Canadian standards and lead to exclusion. Thus, the Burgon decision did not decide that foreign law supercedes Canadian immigration law. Canadian authorities are not required to attorn to the laws and policies of other lands in determining whether a person has been "convicted" for the purposes of the Immigration Act. No general principle of absolute recognition of foreign pardons was established by Burgon. However, in assessing whether persons who have been convicted abroad, but later pardoned, ought to be inadmissible under subparagraph 19(1)(c.1)(i), it is open to our courts to consider the effect of foreign laws in appropriate circumstances. Moreover, there is nothing in the post-Burgon cases that stands for the principle that a foreign pardon is binding on Canadian courts if there is some similarity between our legal system and our law and a foreign legal system and its laws. Three elements must be established before a foreign discharge or pardon may be recognized: (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; and (3) there must be no valid reason not to recognize the effect of the foreign law. The first matter to consider was the effect of the foreign pardon in the country where it was granted. Foreign law is a question of fact. This Court will only interfere with a finding of fact if there has been a palpable and overriding error. It was found as a fact that the Pakistani pardon operated under Pakistani law to erase the Pakistani conviction, or at least its negative consequences. There was no palpable and overriding error in that finding of fact. The next question was whether or not the Pakistani pardon should be treated as a Canadian pardon. (1) The two legal systems must be based on similar foundations and share similar values. In stating that it would be enough if the two systems were "somewhat similar", the Motions Judge applied the wrong test. The systems must be "similar", not just "somewhat similar". The two systems need not be identical, but there must be a strong resemblance in the structure, history, philosophy and operation of the two systems before its law will be recognized in this context. Moreover, the similarity of the systems must normally be proved by evidence to that effect, except perhaps in the rare situation where it is obvious. There was no evidence to support the Motions Judge's assumption that the Pakistani legal system was somewhat similar to Canada's. The Motions Judge erred in assuming without evidence that another country's system was "somewhat similar" to ours. (2) (i) The aims and rationale of the Canadian laws are to eliminate the potential future effects of convictions. Evidence that the goals and rationale for pardoning provisions are similar must be adduced. The Motions Judge erred in failing to consider whether the aims and rationale of the Pakistani law were similar to those of Canadian law. (ii) In comparing Canadian with foreign law regarding pardons, the Court had to consider the process as well as the factual basis upon which they may be granted. It was significant that, with any pardon in Canada, whether granted under the Criminal Records Act, the Criminal Code, or the royal prerogative of mercy, a detailed and thorough process determines whether a pardon may be granted. No evidence was presented to the Motions Judge regarding either the content of the Pakistani law or the process by which the Pakistani pardon was granted. Under Pakistan's Constitution, the President has absolute power to grant pardons. It may be that respondent's pardon was granted as a personal favour or for political reasons. In the absence of evidence, the Court could not conclude that the content of the pardon law and procedure was similar to ours, and the Motions Judge erred in so finding. (iii) A Canadian pardon only removes the disqualifications resulting from a conviction, and does not erase the conviction itself. Free pardons, which are expressly deemed by the Criminal Code to erase the conviction as if it had never existed, may also be granted, but only by the Governor in Council where a person has been wrongly convicted, and even then, there are established procedures that must be followed. Thus, whether the Pakistani pardon truly erased the conviction or merely its consequences was not significant. It was agreed that the Pakistani pardon truly erased the consequences of conviction in Pakistan. Therefore, the effect of a pardon under Pakistani law is not dissimilar to the effect of a pardon under Canadian law. The Motions Judge was correct in this aspect of his analysis, but that was not enough. (3) There will still be situations where Canadian immigration law must refuse to recognize the laws of close counterparts. There must be "some valid basis" or a "solid rationale" for not respecting the legislation of countries similar to ours. The seriousness of the offence can and should be considered under this third requirement. The crime of hijacking is universally condemned and severely punished. Aircraft hijackings not only jeopardize the safety of persons and property but also undermine the confidence of people throughout the world in the safety of civil aviation. They financially damage airlines and the economy as a whole. Terrorist hijackings exploit control over aircraft as weapons of psychological coercion and extortion against governments. The conviction was for an offence so abhorrent to Canadians, and arguably so terrifying to the rest of the civilized world, that the Court was not required to respect a foreign pardon of such an offence. The result of a decision that foreign pardons are not automatically recognized in Canada would not force immigration authorities to prove the validity of every conviction in a foreign land. Subparagraph 19(1)(c.1)(i) refers to persons who have been convicted. Proof of a foreign conviction by itself supplies "reasonable grounds to believe" that there has been a conviction. There is no such provision in the Act or the case law concerning pardons. A "grave assault on the Canadian sense of justice" might occur only if the Canadian Immigration Department failed to recognize a pardon that meets the requirements described. If the legal system is not similar, the specific provision is not similar, or there is good reason to do otherwise, no injustice is perpetrated by refusing to recognize a foreign pardon. Foreign pardons should only be recognized in rare situations, such as in Burgon, where it would be unjust not to give effect to a similar country's similar laws that fully forgive individuals for the crimes they have committed. The third branch of our test ensures that, if there is any valid basis upon which to deny recognition to a foreign pardon, then a potential immigrant can and should still be considered "convicted" for the purposes of subparagraph 19(1)(c.1)(i). The certified questions were answered as follows: (1) no; (2) not answered because it was not a general question; and (3) yes.
APPEAL from the Motions Judge's decision (Saini v. Canada (Minister of Citizenship and Immigration), [2000] 3 F.C. 253; (2000), 184 D.L.R. (4th) 568; 183 F.T.R. 13 (T.D.)) holding that a deportation order based on Immigration Act, subparagraph 19(1)(c.1)(i) could not be executed since the applicant, who had been convicted in Pakistan of hijacking an airliner, had been pardoned. Appeal allowed. The pardon granted by the President of Pakistan, did not have to be recognized by the Court as there was no evidence of similarity of Pakistani and Canadian legal systems, or the specific laws relating to pardons.
The following are the reasons for judgment rendered in English [1]By the Court: The main issue in this case is whether the respondent, Parminder Singh Saini, who was convicted in Pakistan of hijacking an airliner and later pardoned by the Pakistani President, may be deported from Canada on the basis of subparagraph 19(1)(c.1)(i) [as enacted by S.C. 1992, c. 49, s. 11] of the Immigration Act [R.S.C., 1985, c. I-2], which, in effect, excludes persons who have been convicted of a serious offence outside of Canada. That subpara-graph reads: 19. (1) No person shall be granted admission who is a member of any of the following classes: . . .
The Motions Judge, purporting to follow Canada (Minister of Employment and Immigration) v. Burgon, [1991] 3 F.C. 44 (C.A.), held that a deportation order dated October 27, 1995 could not be executed; we respectfully disagree with that decision [[2000] 3 F.C. 253 (T.D.)]. A. The Facts [2]The respondent is a citizen of India who was convicted in 1984 in Pakistan of hijacking an Indian airliner travelling from India to Pakistan. Although he was originally sentenced to death, his sentence was later commuted to life imprisonment. After the respondent served 10 years in prison he was released on parole for medical reasons in 1994, was granted full parole in January 1995 and was then ordered to leave Pakistan. He departed Pakistan for Canada, claiming refugee status. Although not in the written record, it was said at the hearing that the respondent initially lied to Canadian authorities who were later informed of the details of the respondent's situation by officials of India. Upon learning of this, authorities took steps to obtain a deportation order. He was detained by immigration authorities for a time, but was later released and is now living in Toronto and is said to be a student at York University, studying international relations. [3]While the respondent was in custody in Canada pursuing appeals, his family requested, on his behalf, a pardon from the Pakistani government. In Pakistan, a pardon may be granted by the President under Article 45 of the Constitution of the Islamic Republic of Pakistan, which, at the time the pardon was granted, read:
[4]In April 1998, the then-President of Pakistan granted a pardon to the respondent. The pardon document produced by the respondent reads as follows:
I am directed to refer to your appeal addressed to the President of Pakistan, requesting therein to grant pardon on the conviction/term of imprisonment already undergone by Mr. Parminder Singh Saini, awarded by Special Court at Lahore, on the charges of hijacking an Indian Airline's plane from Sringar to Pakistan. 2. The matter was considered by the Government of Pakistan and the President of Pakistan, in the exercise of the powers vested in him under Article 45 of the Constitution of the Islamic Republic of Pakistan has been pleased to grant pardon on conviction/term of imprisonment already undergone by Parminder Singh Saini, S/O Arjan Singh Saini, awarded by the Special Court at Lahore, on the charges of hijacking of an Indian Airline's plane from Sringar to Pakistan. Yours truly, (Muhammad Zafeer Abbasi) Deputy Secretary [5]In light of this pardon, the respondent filed an application for judicial review of the deportation order, contending that it could no longer be said that he had been "convicted" of an offence, as per Burgon, because the conviction was erased by the pardon. Consequently, he argued, the deportation order could not be executed. B. The Decision of the Motions Judge [6]The Minister did not challenge the validity of the pardon on judicial review. Both parties submitted expert testimony focussed on the legal effect of a presidential pardon under Pakistani law. The Motions Judge's analysis of the expert evidence and conclusions of law are summarized below. [7]The Minister's expert, Mr. Akhtar, relying on the British decision in R. v. Foster, [1984] 2 All ER 679 (C.A.), testified that since the pardon cannot be treated as an acquittal, the conviction remains. This evidence was discounted by the Motions Judge [at paragraph 21] because: . . . Mr. Akhtar's opinion is largely based on the British decision in Foster which is not binding on Pakistan as the Pakistani Constitution was promulgated long before the Foster decision and not bound by it. [8]The Motions Judge preferred the testimony of the respondent's expert, Mr. Zafar, which was reinforced by a letter from Khwaja Law Associates, which was not sworn. The reasons for order quoted the handwritten Khwaja opinion, which stated in its entirety: TO WHOM IT MAY CONCERN The President of Pakistan has granted pardon on conviction to Mr. Parminder Singh Saini which means remission of all legal consequences of his conviction. Khwaja Sultan Ahman Sr. Advocate [9]This appeal was argued before this Court as if he had found that Mr. Zafar's expert opinion was that the conviction was erased. The Motions Judge [at paragraph 21] was of the opinion that the Canadian jurisprudence, as declared by this Court in Burgon, supra, and by the Trial Division in Smith v. Canada (Minister of Citizenship and Immigration), [1998] 3 F.C. 144 (T.D.); Lui v. Canada (Minister of Citizenship and Immigration) (1997), 134 F.T.R. 308 (F.C.T.D.); and Barnett v. Canada (Minister of Citizenship and Immigration) (1996), 109 F.T.R. 154 (F.C.T.D.) "is to the effect that a pardon does clean [sic] the individual of any stain that a conviction has caused". The Motions Judge granted the application for judicial review and ordered that the deportation order not be executed. The Motions Judge [at paragraph 23] held that, because the respondent was pardoned in Pakistan, he "has been cleansed of that conviction and he should not be deported on that ground". He based this conclusion on his finding [at paragraphs 21-22] that: A valid pardon given in another country with a similar justice system cannot be ignored in our country and, more specifically in this case, by an immigration officer. . . .
The Pakistani judicial system is somewhat similar to ours and as Linden J.A. said in Burgon it would constitute a "grave assault on the Canadian sense of justice" if the Canadian immigration department would deem a person convicted of an offence when the person is deemed not to be convicted of the same offence in the jurisdiction where the offence was allegedly committed. Three questions of general importance were certified by the Motions Judge, which will be discussed later. C. The Burgon Case and Subsequent Jurisprudence [10]With respect, we are of the view that the Motions Judge misinterpreted the principle established in Burgon. That case did not hold that Canadian immigration law is bound by any pardon in any foreign land with a legal system "somewhat similar" to ours. Before we proceed, we should review the Burgon case. [11]Ms. Burgon was a British citizen who was sentenced to two years' probation following a plea of guilty to conspiracy to supply controlled drugs. Although she herself was involved in the conspiracy to a minor extent under the influence of her former husband and his associates, she co-operated with the police and helped to convict a ring of drug dealers. Soon after that, she remarried to a Canadian citizen, later came to Canada and eventually sought admission to Canada as a permanent resident. Immigration authorities declared that Ms. Burgon was an inadmissible person under paragraph 19(1)(c) of the Immigration Act, which was similar in effect to its successor, subparagraph 19(1)(c.1)(i), in that it denied admission to persons convicted of serious offences outside of Canada. [12]However, under subsection 13(1) of the United Kingdom's Powers of Criminal Courts Act, 1973 (U.K.), 1973, c. 62, a person sentenced to probation is expressly deemed not to be convicted: 13. (1) . . . a conviction of an offence for which an order is made under this Part of this Act placing the offender on probation or discharging him absolutely or conditionally shall be deemed not to be a conviction for any purpose other than the purposes of the proceedings in which the order is made and of any subsequent proceedings which may be taken against the offender under the preceding provisions of the Act. [Emphasis added.] [13]The relevant analysis in Burgon began by recognizing that all people who have committed crimes are not necessarily excluded from Canada forever. At pages 58-59, this Court concluded: Immigration law, like society generally, may forgive those who commit crimes. Those who satisfy "the Governor in Council that they have rehabilitated themselves and that at least five years have elapsed since the termination of the sentence imposed" may be admitted. . . . This provision indicates that a person who commits a serious crime may be given a chance to start a new life in Canada, at least on certain conditions. [14]The decision continued with an examination of the circumstances under which a conviction might be expunged under Canadian law. The effect of a Canadian pardon at that time under the Criminal Records Act, R.S.C., 1985, c. C-47, was such that it vacated the conviction and removed any disqualification resulting from the conviction. In addition, the Burgon decision noted that the Criminal Code [R.S.C., 1985, c. C-46] allowed judges to impose absolute and conditional discharges, which would have the effect of the accused being deemed not to have been convicted, subject to certain exceptions. [15]The following analysis in Burgon explains its basis, at pages 60-61: . . . when Parliament re-enacted the Immigration Act in 1976 . . ., it must be taken to have known about its earlier penal legislation which allowed for the elimination of criminal convictions from the records of deserving individuals. In using the word "convicted" in paragraph 19(1)(c), therefore, Parliament meant a conviction that had not been expunged, pursuant to any other legislation it had enacted. If a "conviction" had been erased by the provisions of another law of Parliament, it was not meant to be treated in the same way as a conviction that had not been removed from a person's record. If it had intended that the word "convicted" in the Immigration Act be interpreted otherwise, it could have and should have demonstrated that. Interpreting paragraph 19(1)(c) in this way, the Immigration Act and the criminal legislation in Canada is rendered consistent, not in conflict. The policy of the criminal law is incorporated within the Immigration Act. [16]An analysis of the foreign law concluded that "[t]his U.K. legislation, while not identical to that of Canada, is certainly similar in content and in effect" (at page 60). Through an examination of both the Canadian law and the U.K. legislation, the Court demonstrated their similarity in aim, content and effect. The main issue for the Court in Burgon concerned whether the U.K. legislation should, therefore, be recognized and be treated in the same way as the substantially similar Canadian legislation would have been treated. [17]Burgon decided that Canadian immigration law could recognize the effect of the foreign legislation because both the specific legislation in question and the legal system as a whole were similar to and consistent with Canada's laws and legal system. Furthermore, in that case, there was no good reason not to respect the U.K. legislation. As the Court stated, at pages 61-62: There is no good reason for Canadian immigration law to thwart the goal of this British legislation, which is consistent with the Canadian law. Our two legal systems are based on similar foundations and share similar values. . . . Unless there is some valid basis for deciding otherwise, therefore, the legislation of countries similar to ours, especially when their aims are identical, ought to be accorded respect. . . . we should recognize the laws of other countries which are based on similar foundations to ours, unless there is a solid rationale for departing therefrom. [18]There are several important points to emphasize here. First, Burgon unequivocally declared that "this Court is not required to go so far as to `attorn' to the law of all foreign jurisdictions" (at page 62). The decision explicitly quoted and agreed with Justice Bora Laskin's comments in Minister of Manpower and Immigration v. Brooks, [1974] S.C.R. 850, at page 863, where he stated that the law of another country cannot be "controlling in relation to an inquiry about criminal convictions to determine whether immigration to Canada should be permitted". Thus, it is clear that Canadian immigration law governs whether a foreign discharge or pardon will be recognized, not any foreign law. [19]We agree with Justice Mahoney who made this clear in his dissenting reasons in Burgon, at page 50: Yet Parliament has made it clear that it is the Canadian, not the foreign standard of the seriousness of crimes, as measured in terms of potential length of sentence, that governs admissibility to Canada. The policy basis for exclusion under paragraph 19(1)(c) must surely be the perceived gravity, from a Canadian point of view, of the offence the person has been found to have committed and not the actual consequence of that finding as determined under foreign domestic law. Indeed, the language of subparagraph 19(1)(c.1)(i) expressly refers to those foreign offences "that, if committed in Canada, would constitute an offence that may be punishable under any Act of Parliament" by 10 or more years' imprisonment. This demonstrates that Canadian immigration law does not necessarily exclude all persons convicted of a crime that is considered serious in a foreign jurisdiction; a conviction must also be considered serious in Canada for a person to be denied admission on that basis. Similarly, an offence considered trivial abroad may be considered serious by Canadian standards and lead to exclusion. [20]Thus, it can be seen that the Burgon decision did not decide that foreign law supercedes Canadian immigration law. Canadian authorities are not required to attorn to the laws and policies of other lands in determining whether a person has been "convicted" for the purposes of the Immigration Act. No general principle of absolute recognition of foreign pardons is established by Burgon, which was not even a case about a pardon but instead dealt with a discharge and sentence of probation. However, in assessing whether persons who have been convicted abroad but later pardoned ought to be inadmissible under subparagraph 19(1)(c.1)(i), it is open to our courts to consider the effect of foreign laws in appropriate circumstances. [21]Moreover, there is nothing in the post-Burgon jurisprudence that stands for the principle advanced on behalf of the respondent, that is, a foreign pardon is binding on Canadian courts if there is some similarity between our legal system and our law and a foreign legal system and its laws. [22]The decisions of the Trial Division in Lui, supra, and Kan v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1886 (T.D.) (QL), both support the proposition that foreign laws are not automatically applied for the purposes of subparagraph 19(1)(c.1)(i) of the Immigration Act. Both cases considered the impact of the Rehabilitation of Offenders Ordinance 1986 of Hong Kong [Ord. No. 55/86] (ROO), which vaguely resembles our Criminal Records Act. In Lui, Rothstein J. (then of the Trial Division, now of this Court), was "satisfied that in a general sense, the purpose or aim of the Hong Kong Rehabilitation of Offenders Ordinance 1986 is similar to that of the Criminal Records Act--to give convicted persons a second chance by `wiping their slate clean'" (see paragraph 5). Justice Rothstein explained, however, that that is not enough; he correctly employed Burgon when he stated that it had to be shown also that "the foreign law is similar in (a) aim or purpose, (b) content and (c) effect" (see paragraph 3). Because the scope of the ROO is much narrower that the Criminal Records Act and because it is subject to numerous specified exceptions, the applicant was properly considered to have been "convicted" and therefore inadmissible to Canada. The Kan decision is consistent with Lui. These two decisions correctly applied the principle enunciated in Burgon that foreign legislation is not determinative of whether a conviction exists for the purposes of the Canadian Immigration Act, though it might be considered in appropriate circumstances. [23]In the Barnett case, supra, the Trial Division of this Court held that an applicant convicted of burglary in the U.K. and later pardoned was allowed, on the principle of Burgon, to be treated as not having been convicted. On a subsequent motion, the Trial Division rightly refused to certify a question on the basis that this Court had already dealt with that issue in Burgon (see Barnett v. Canada (Minister of Citizenship and Immigration) (1996), 35 Imm. L.R. (2d) 70 (F.C.T.D.)). However, the original decision is most relevant to the proceedings before this Court. In Burgon it was clear that the U.K. Powers of Criminal Courts Act, 1973 expressly deemed that no conviction exists, but in Barnett there was no detailed investigation into the legal effect of a pardon under the U.K. Rehabilitation of Offenders Act 1974 [(U.K.), 1974, c. 53]. While the legislation under which the pardon was obtained was not identical to that in Burgon, the Court felt that the "ultimate effect is the same under both statutes" (see paragraph 10). In the reasons given, however, the imprecise language employed by the Court was broader than appropriate [at paragraph 9]: The question is not whether Canada has identical legislation in place, but whether the underlying rationale of the foreign legislation is consistent with some fundamental principle of justice esteemed within our own society. The holding in Burgon, as correctly described by Justice Rothstein in Lui, was much narrower than indicated by that quotation. [24]To summarize, our jurisprudence requires that three elements must be established before a foreign discharge or pardon may be recognized: (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; and (3) there must be no valid reason not to recognize the effect of the foreign law. [25]We shall now examine the facts of this case to determine the effect of the foreign pardon in the country where it was granted. We shall then decide, pursuant to the Burgon principles, whether such a pardon has any effect in Canada. D. The Effect of the Foreign Pardon in the Country where it is Granted [26]The first matter to consider is the effect of the foreign pardon in the country where it was granted. Foreign law is a question of fact, which must be proved to the satisfaction of the Court. Judicial findings about foreign law, therefore, have always been considered on appeal as questions of fact (see J.-G. Castel, Canadian Conflict of Laws, 4th ed. (Toronto: Butterworths, 1997), at page 155). Moreover, it is well settled that this Court will only interfere with a finding of fact, including a finding of fact with regard to expert evidence, if there has been a palpable and overriding error (see for example N.V. Bocimar S.A. v. Century Insurance Co. of Canada, [1987] 1 S.C.R. 1247; Stein et al. v. "Kathy K" et al. (The Ship), [1976] 2 S.C.R. 802). [27]This Court cannot conclude that, in making the finding of fact with respect to foreign law, the Motions Judge erred palpably and in an overriding way. It has been found as a fact that the Pakistani pardon operates, under Pakistani law, to erase the Pakistani conviction or at least its negative consequences. The Motions Judge's consideration of the Kwaja handwritten opinion as "expert", even though it was not technically an expert opinion nor even sworn, his treatment of the potential bias of the respondent's expert who had previously acted for him in the hijacking case and his ultimate acceptance of the respondent's expert opinion over the appellant's expert, should not be second-guessed by this Court. The finding of fact stands, but this does not conclude the matter. E. The Effect of a Foreign Pardon in Canada [28]The next and more complex issue to consider is whether or not we ought to treat the Pakistani pardon as we would a Canadian pardon. As outlined above, Burgon stipulates that the convicted person must establish that three requirements are met: (1) the foreign legal system as a whole must be substantially similar to Canada's, (2) the aim, content and effect of the specific foreign law must be similar to and consistent with Canadian law, and (3) there must be no valid reason not to recognize the effect of the foreign law. Let us examine each of these matters in turn. (1) The Similarity of Legal Systems [29]This first requirement is that the two legal systems are similar. It must be the case that the "two legal systems are based on similar foundations and share similar values" (see Burgon, at page 62). The Motions Judge applied the wrong test. He thought it would be enough if the two systems were "somewhat similar". That is insufficient. The systems must be "similar" not just "somewhat similar". There is a substantial difference between the two tests; it is not a trivial distinction. Of course, that does not mean that the two systems must be identical, for no two legal systems are. It does require, however, that there be a strong resemblance in the structure, history, philosophy and operation of the two systems before its law will be given recognition in this context. [30]Moreover, the similarity of the systems must normally be proved by evidence to that effect, except perhaps in the rare situation where it is obvious. In this case, there was no evidence whatsoever to support the assumption of the Motions Judge that the Pakistani legal system is somewhat similar to Canada's. Respectfully, it is not enough to assume, without evidence, as the Motions Judge has done, that another country's system is "somewhat similar" to ours. He erred in doing so. (2) The Similarity of the Specific Legal Provisions [31]Even if the Pakistani legal system could be considered to be similar to our own, which it was not proven to be, we must further examine the aim, content and effect of the specific legislation in question to determine if it is consistent with Canadian law and, more precisely, Canadian immigration law (see Rothstein J. (as he then was) in Lui, at paragraph 3). We must first explore the similarity of the aim and rationale of Canadian law to the foreign law respecting pardons. It seems clear that the aims of the Canadian laws are to eliminate the potential future effects of convictions (see R. Paul Nadin-Davis, "Canada's Criminal Records Act: Notes on How Not to Expunge Criminal Convictions" (1980-81), 45 Sask. L. Rev. 221). Although it may be that the goals and rationale for pardoning provisions around the world are similar, there must be evidence of that adduced. Therefore, the Motions Judge erred in failing to consider whether the aims and rationale of the Pakistani law were similar to those of Canadian law. [32]Second, we must address the content of Canadian laws as compared to the foreign law regarding pardons, which includes the process as well as the factual basis upon which it may be granted. Canadian pardons, when granted, are almost invariably administered under the Criminal Records Act, supra, a legislative scheme formulated by Parliament, which outlines provisions regarding the guidelines, procedures and effects of pardons. The Criminal Code contains provisions authorizing the Governor in Council to grant free or conditional pardons (see R.S.C., 1985, c. C-46, sections 748 [as am. by S.C. 1992, c. 22, s. 12; 1995, c. 22, s. 6], 748.1 [as enacted idem], 749 [as am. idem]). Although in Canada, the Monarch can also grant a pardon through the unilateral and discretionary exercise of the royal prerogative of mercy, this power is rarely, if ever, exercised (see Carolyn Strange "Mercy for Murderers? A Historical Perspective on the Royal Prerogative of Mercy" (2001), 64 Sask. L. Rev. 559). Even in the extremely rare circumstances where the royal prerogative is invoked, established formal procedures are used to assess applicants and make recommendations to the Crown, which may grant or deny the pardon. [33]It is significant that, with any pardon in Canada, whether granted under the Criminal Records Act, the Criminal Code, or the royal prerogative of mercy, a detailed and thorough process determines whether a pardon may or may not be granted to an applicant. In almost every case, the National Parole Board (NPB) is empowered to administer the procedures through which a pardon may be granted or revoked (see the Criminal Records Act, supra, section 2.1 [as enacted by S.C. 1992, c. 22, s. 2], the Corrections and Conditional Release Act, S.C. 1992, c. 20, section 110). Under the Criminal Records Act, for example, an applicant must establish that he/she has (1) completed all sentences and (2) waited a certain period of time from the completion of all sentences, and there are procedures whereby inquiries can be undertaken and representations can be made (see sections 4 [as am. by S.C. 1992, c. 22, s. 4], 4.01 [as enacted by S.C. 1997, c. 17, s. 38], 4.1 [as enacted by S.C. 1992, c. 22, s. 4], 4.2 [as enacted idem] and 4.3 [as enacted idem]). [34]No evidence was presented to the Motions Judge regarding the content of the Pakistani law nor the process by which the Pakistani pardon was granted. In this case, the pardon granted to the respondent was given by the President of Pakistan under Article 45 of the Constitution of the Islamic Republic of Pakistan. The power of the President to grant pardons in Pakistan appears absolute and unconditional. In fact, Article 48(2) of Pakistan's former Constitution emphasized that "the validity of anything done by the President in his discretion shall not be called in question on any ground whatsoever". The respondent's pardon may have been granted through a process similar to the NPB's procedures, or it may have been awarded as a personal favour, it may have been bought, or it may have been granted for political or other extraneous reasons. Without evidence, this Court cannot draw a conclusion that the content of the pardon law and procedure was similar to ours, and the Motions Judge erred in doing so. [35]Third, we must explore the effect of a pardon in Canada as compared to the effect of the foreign pardon. The Supreme Court of Canada discussed the meaning and effect of a Canadian pardon in Therrien (Re), [2001] S.C.J. No. 36, 2001 SCC 35 (QL). The case involved a challenge to the appointment of a judge who withheld the information that he had once been convicted of an offence on the ground that he had later obtained a pardon. The Court discussed the common law pardon and the royal prerogative of mercy, and the various ways to exercise that prerogative, for example, through the Criminal Code and the Criminal Records Act (at paragraph 113), but focussed on the effect of pardons under the Criminal Records Act. It explained that a pardon under the Criminal Records Act "removes any disqualification to which the person is subject by virtue of any federal Act or regulation made thereunder" (at paragraph 116). Importantly, however, the Court held that a convicted person cannot deny having been convicted and that such a pardon does not wipe out the conviction itself; it only limits its negative effects. [36]Section 5 of the Criminal Records Act of Canada, R.S.C., 1985, c. C-47 (as am. by S.C. 1992, c. 22, s. 5; 2000, c. 1, s. 4) sets out the effect of a pardon as follows: 5. The pardon
. . .
[37]The decision of the Federal Court Trial Division in Smith, supra, dealt with a pardon under paragraph 5(b) of the Criminal Records Act in the context of the Immigration Act. Importantly, Smith dealt with a domestic, not a foreign pardon. Regarding the Canadian pardon, MacKay J. held at paragraph 20 that: . . . the Act cannot be said to erase the conviction in the sense that the conviction is deemed not to have existed. While the purpose of the Criminal Records Act is to bar any further disadvantage imposed by Parliament that arises from a pardoned conviction, by cleansing the individual of the stain caused by the conviction and limiting the uses to which the fact of the conviction can be put, the conviction cannot be said not have existed by virtue of the pardon. [38]MacKay J. also discussed the Immigration Act, and in particular, the provision concerning inadmissible persons. With respect to paragraph 19(1)(c) [as am. by S.C. 1992, c. 49, s. 11], which is the equivalent of subparagraph 19(1)(c.1)(i), except that it deals with domestic convictions, he concluded [at paragraph 26]: That inadmissibility and resulting deportation order, in my opinion, is a "disqualification", or an "incapacité", against remaining in Canada, by reason of the conviction, imposed under the provisions of the Immigration Act, an Act of Parliament. [39]Combining his analysis of these two laws, MacKay J. decided that enforcing the deportation order based upon paragraph 19(1)(c) of the Immigration Act would violate paragraph 5(b) of the Criminal Records Act. The disqualification was removed by reason of the Canadian pardon. The discussion in Smith ended here. The additional, and perhaps more difficult question before this Court is whether a disqualification resulting from the operation of subparagraph 19(1)(c.1)(i) ought to be suspended, not as a result of a domestic pardon, but as a result of foreign legislation. That is an entirely different question. [40]It was clearly decided in Smith and Therrien that a Canadian pardon only removes the disqualifications resulting from a conviction, and does not erase the conviction itself. We would note that free pardons may also be granted in Canada, which are expressly deemed by the Criminal Code to erase the conviction as if it had never existed (see subsection 748(2)). Importantly, however, a free pardon can only be granted by the Governor in Council where a person has been wrongly convicted, and even then, there are established procedures that must be followed. Thus we can see that whether or not the Pakistani pardon truly erased the conviction itself, or merely its consequences is not significant. Both the appellant and respondent agree that the Pakistani pardon erases the consequences of conviction in Pakistan. Therefore, the effect of a pardon under Pakistani law is not dissimilar to the effect of a pardon under Canadian law. The Motions Judge was correct in this aspect of his brief analysis, but, as is clear from the foregoing analysis, that is not enough. There was no evidence or even discussion of the similarity or lack thereof in the aim or content of the Canadian law to the Pakistani law with respect to pardons, and therefore, the Motions Judge's decision cannot be upheld on this second branch of the Burgon test. (3) A Good Reason to Ignore the Foreign Pardon [41]Even if a foreign jurisdiction has a legal system similar to ours and laws similar to ours, the enquiry is not complete. As noted in Chiarelli v. Canada (Minister of Employment and Immigration), [1992 ] 1 S.C.R. 711, non-citizens do not have an unqualified right to enter or remain in Canada. I must emphasize that Canadian immigration law cannot be bound by the laws of another country, even where that foreign country's laws mirror our own. There will still be situations where Canadian immigration law must refuse to recognize the laws of close counterparts. [42]Thus, we must assess the third requirement of Burgon [at pages 61-62], that there was, "no good reason for Canadian immigration law to thwart the goal of [the] British legislation". This Court expressly stated in that case that we ought to respect the legislation of countries similar to ours, "unless there is some valid basis for deciding otherwise" or where there is a "solid rationale" for not doing so. The appellant contends that, in this case, there is a "valid basis" and "solid rationale" for refusing to give effect to the Pakistani pardon, regardless of its potential consistency with Canadian law. In support of this submission the appellant notes that some provisions of the Immigration Act expressly recognize that a person's immigration status will be affected by the severity of the offence involved, as compared with Canadian law. Further, it is argued that the language of the Act makes clear that the severity of the sentence imposed abroad must correspond to our law (see for example subparagraph 19(1)(c.1)(i)). The respondent, on the other hand, insists that the severity of the offence cannot logically be relied upon as a factor in this analysis. [43]In our view, the seriousness of the offence can be considered under this third requirement. In Burgon the offence had to do with drug trafficking. In Barnett the conviction was for burglary. Both are serious offences but this case involves a far more abhorrent crime. The gravity of the crime of hijacking is obvious; it is universally condemned and punished severely. Although there is no evidence of the particular circumstances of this offence, hijacking is an offence that is always very serious. Section 76 of the Criminal Code makes it an offence punishable by life imprisonment. Canada has ratified international treaties, such as the Convention for the Suppression of Unlawful Seizure of Aircraft, signed at The Hague on 16 December 1970, 860 U.N.T.S. 105, and the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, concluded at Montréal on 23 September 1971, 974 U.N.T.S. 178, which recognize that hijacking aircraft jeopardizes the safety of persons and property, seriously affects the operation of air services, and undermines the confidence of the peoples of the world in the safety of civil aviation. These international instruments do not require Canada to deny entry to any person convicted of hijacking, but strongly emphasize the serious nature of the crime and encourage signatories to severely punish hijacking, take actions to discourage it, and generally co-operate in the international condemnation of this crime. It is clear that hijacking is considered to be among the most serious of criminal offences. Hijacking may combine, in one act, numerous offences including kidnapping, unlawful confinement, theft, assault, extortion, and potentially murder. It entails the violation of individual human rights such as the right to life, personal security and freedom of movement. It financially damages airlines, associated industries and the economy as a whole. Hijacking is not the mere seizure of an aircraft for its own sake; it exploits control over the aircraft as "as a weapon of psychological coercion and extortion directed against governments" (see P. Wilkinson, Terrorism and the Liberal State (London: Macmillan Press, 1977), at page 207). Moreover, the victims of this crime are not limited to those persons unfortunate enough to be physically affected, nor are the effects of hijacking limited to one government. Hijacking terrorizes all nations and society as whole. [44]In our view, the gravity of the offence can and should be considered when deciding whether or not to give effect to a foreign pardon. Even if the Pakistani legal system were similar, and even if the pardon were given under a law similar to Canadian law, the conviction in this case was for an offence so abhorrent to Canadians, and arguably so terrifying to the rest of the civilized world, that our Court is not required to respect a foreign pardon of such an offence. [45]Contrary to the respondent's contention, chaos would not follow from a decision by this Court that foreign pardons are not automatically recognized in Canada. The result of such a decision would not force immigration authorities in these cases to prove the validity of every conviction in a foreign land. It is not inconsistent to accept the presumptive validity of a foreign conviction, but not of a foreign pardon. The language of subparagraph 19(1)(c.1)(i) refers to persons who have been convicted. It makes no reference at all to the effect of a foreign pardon. If the person convicted abroad wishes to dispute the applicability of the conviction to the Immigration Act, whether by proving that he/she was subsequently pardoned or received a discharge or the conviction was overturned on appeal or for some other reason, then the onus is on that person to do so. The Immigration Act is clear that there is no burden to establish the validity of a conviction on a balance of probability; the Act renders a person inadmissible where there "are reasonable grounds to believe" a person has been convicted of a serious offence outside Canada. Thus, proof of a foreign conviction by itself supplies "reasonable grounds to believe" that there has been a conviction. There is no such provision in the Act or the jurisprudence concerning pardons. [46]In his reasons [at paragraph 13], the Motions Judge quotes a portion of the following excerpt from Burgon: It would constitute a grave assault on the Canadian sense of justice if either the Canadian immigration department or the Canadian justice system would empower itself to deem a person convicted of an offence when the person is deemed not to be convicted of the same offence in the jurisdiction where the offence was allegedly committed. First, the Motions Judge erred later on, at paragraph 22, when he attributed this statement to Linden J.A. In fact, Linden J.A. was quoting the Appeal Division of the Immigration and Refugee Board, which initially heard Ms. Burgon's case (see Burgon, at page 62). Regardless, this statement remains accurate, subject however to clarification. A "grave assault on the Canadian sense of justice" might occur only if the Canadian Immigration Department failed to recognize a pardon that meets the requirements described in these reasons. If the legal system is not similar, the specific provision is not similar, or there is good reason to do otherwise, no injustice is perpetrated by refusing to recognize a foreign pardon. [47]Foreign pardons should only be recognized in rare situations, such as in Burgon, where it would be unjust not to give effect to a similar country's similar laws that fully forgive individuals for the crimes they have committed. The final branch of our test ensures that, if there is any valid basis upon which to deny recognition to a foreign pardon, then a potential immigrant can and should still be considered "convicted" for the purposes of subparagraph 19(1)(c.1)(i) of the Immigration Act. F. Conclusion [48]Whether or not we ought to give effect to a foreign pardon as we would a Canadian pardon, such that an individual cannot be considered convicted or subject to the disqualifications resulting from a conviction in regards to subparagraph 19(1)(c.1)(i) of the Immigration Act depends upon three requirements. The first enquiry must focus on the similarity of the foreign legal system in general to our own. The second consideration is whether or not the aim, content and effect of the specific legislation are similar to a corresponding Canadian law. Beyond this, we must assess whether or not there is a valid reason not to respect the pardon of the foreign jurisdiction. These three requirements must all be met before our Courts will recognize a foreign pardon or discharge. [49]The respondent has failed to demonstrate that the legal system of Pakistan and that the Pakistani pardoning provisions in its Constitution are similar to Canada's legal system or our specific legislation. Regardless, hijacking is so serious a crime that this Court will not interfere in a decision that does not give effect to a foreign pardon for that offence. [50]The questions of general importance certified by the Motions Judge [at paragraph 25] are as follows: 1. In the absence of evidence as to the motivating considerations which led to the grant of a pardon by another state jurisdiction, is a Canadian Court bound by the pardon? 2. Where a pardon is "on conviction/term of imprisonment already undergone", is this considered to be a pardon which erases the conviction and consequences? 3. Does the nature of the offence of hijacking provide a solid rationale to depart from the principle that a pardon granted by another jurisdiction, whose laws are based on a similar foundation as in Canada, be recognized in Canada? [51]This Court answers "no" to the first certified question and "yes" to the third certified question. This Court refuses to answer the second question, as it is not a general question but is, in reality, limited to the specific facts of this case, even though it is expressed in general terms. [52]The appeal will be allowed, the decision of the Motions Judge will be set aside, and the deportation order will stand. The questions will be answered as follows: question 1: no; question 2: not answered; question 3: yes. |
| Important Notices |
Français
| Contact Us | Help
| Search | Canada
Site
Home | Judicial Appointments | Language Training
| International cooperation
Site Map | Links | Canada Federal Court Reports | Analytical Search