Li v. Canada ( Minister of Citizenship and Immigration )
IMM-4210-94
Cullen J.
7/5/95
13 pp.
Application for judicial review of Adjudication Division decision applicant criminally inadmissible pursuant to Act, s. 19(2)(a.1)(i)-Applicant, Hong Kong businessman having investments in Canada, detained upon entry to Canada and subject of Act, s. 20 report alleging criminally inadmissible due to convictions under Hong Kong Prevention of Bribery Ordinance, s. 9 (POB)-At inquiry, applicant admitting two convictions pursuant to POB, s. 9 and admitting no appeal taken from convictions-Adjudicator finding: (1) essential elements of Hong Kong offence same as essential elements of Canadian offence; and (2) difference in burdens of proof for each offence not material to inquiry as variance procedural in nature-Applicant submitting offences not equivalent as Canadian offence providing for defence not available in Hong Kong jurisdiction, and as essential elements of two offences fundamentally different-Availability of defence not constituting essential element of equivalency test; Steward v. Minister of Employment and Immigration (No. 1) (1988), 84 N.R. 236 (F.C.A.) distinguished on basis defence-at-issue in Steward not constituting true defence but rather a specific element of offence-Word "corruptly", present in Canadian offence but absent from Hong Kong provision, implying secrecy (R. v. Kelly, [1992] 2 S.C.R. 170); adjudicator not erring in determining Hong Kong expression "without lawful authority or reasonable excuse" akin to secrecy-Unavailability of defence of disclosure in Hong Kong offence not essential element of equivalency test-Difference in burdens of proof, i.e. contrary to situation in Canada, Hong Kong burden of proof resting with accused, not negating equivalency-Difference in burden of proof not amounting to Charter violation as Charter not having extraterritorial application-Adjudicator's task limited to comparison of laws and determination as to equivalency; no obligation to consider factual matrix of offences where question as to constitutionality of foreign offence raised-Had Code, s. 426(1) offended Charter, no equivalency could exist (Halm v. Canada (Minister of Employment and Immigration), [1995] 2 F.C. 331 (T.D.)), however constitutionality of POB, s. 9 of no relevance-Applicant not meeting onus of showing essential elements of offences not equivalent-Application dismissed-Four questions regarding equivalency test certified: (1) whether comparison of respective statutory defences required; (2) whether comparison of all defences available under respective laws required; (3) whether comparison of burdens of proof under respective laws required; and (4) whether comparison of Charter defences under respective laws required-Immigration Act, R.S.C., 1985, c. I-2, s. 19(2) (a.1)(i) (as am. by S.C. 1992, c. 47, s. 77)-Criminal Code, R.S.C., 1985, c. C-46, s. 426(1)-Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44].