Judgments

[1996] 1 F.C. 547

IMM-1901-95

Henry Halm (Applicant)

v.

The Minister of Employment and Immigration (Respondent)

Indexed as: Halm v. Canada (Minister of Employment and Immigration) (T.D.)

Trial Division, Rothstein J.—Toronto, September 19; Ottawa, November 23, 1995.

Citizenship and Immigration — Exclusion and removal — Inadmissible persons — Judicial review of deportation order under Immigration Act, s. 19(2)(a.1)(ii) — Applicant convicted of sodomy, endangering welfare of child, bail jumping in U.S.A. — Ordered deported after continuing detention — Deportation not disguised extradition — No improper purpose in deportation, detention proceedings — Minister not “gating” applicant — No delay in judicial review proceedings — Prima facie case of bail jumping — Misrepresentations by applicant material, valid ground for deportation order — Minister’s consent required for applicant to return to Canada.

Constitutional law — Charter of Rights — Life, liberty and security — Whether deportation order contrary to Charter, s. 7 — Previous order in same case set aside as Criminal Code, s. 159 (sodomy) found unconstitutional — Public interest in continued detention under Immigration Act, s. 103 weighed against liberty interest of individual — Decisions to detain applicant not improper — Timely judicial review only relief necessary to meet fundamental justice requirements.

This was an application for judicial review of a deportation order made against the applicant by an adjudicator, and of a decision to detain him under section 103 of the Immigration Act, as renewed thereafter, resulting in his continued detention. In 1990, the applicant was convicted in New York State of eight charges of sodomy and endangering the welfare of a child. After being released on bail pending appeal, the applicant entered Canada without disclosing his convictions to Canadian immigration officers. He was arrested at Toronto in April 1993, and one month later, an inquiry was conducted which resulted in a deportation order being issued against him. The applicant sought judicial review of the deportation order of May 28, 1993. Reed J. granted the application for judicial review and set aside the deportation order on the basis that section 159 of the Criminal Code, to which the applicant’s sodomy convictions were found to have been equivalent by the Adjudicator under subparagraph 19(1)(c.1)(i) of the Immigration Act, was unconstitutional. In March 1995, a direction was issued for an inquiry based on the applicant’s alleged bail jumping in New York State, misrepresentation to immigration officials and his visitor status. The inquiry culminated in the deportation order issued against him on July 7, 1995. The applicant raised a number of issues in support of his application for judicial review of that deportation order.

Held, the application should be dismissed.

1) The applicant submitted that the deportation order of July 7, 1995 amounted to a disguised extradition and that the proper course of action was extradition. This argument misses the basic difference between deportation and extradition. Deportation occurs when the state wishes to expel a person; extradition occurs when another state wishes to retrieve a person, and can only be carried out when a request for extradition has been received. Canada has no control over whether a foreign state wishes a person extradited, and cannot be precluded from acting in the public interest to deport undesirable aliens. Unless there is clear evidence establishing that the Minister did not genuinely consider it in the public interest to order the fugitive’s deportation, any challenge to the validity of the deportation procedure will fail. There is no legal authority for the proposition that simply because deportation to a foreign country may result in a greater penalty to an individual than extradition to that country, that deportation is contrary to section 7 of the Charter. The fact that the Minister chose the most serious of the applicant’s crimes in the United States upon which to base deportation proceedings is not evidence of bad faith or improper purpose. And although proceeding on the sodomy convictions was not the most expeditious approach to deporting the applicant, that is a far cry from suggesting that the proceedings were improper or that they constituted disguised extradition. It is not improper for the Minister to have as a purpose for deportation and continued detention, the removal of an undesirable alien, control over the alien to ensure that he leaves, and the prohibition of the alien from re-entering Canada without the Minister’s consent. The applicant has not demonstrated any improper purpose of the Minister in the deportation and detention proceedings taken against him.

2) Applicant’s counsel argued that by commencing a second inquiry in March 1995 into bail jumping and misrepresentation when the May 28, 1993 deportation order based on the sodomy convictions had been set aside, the Minister abused the process by “gating” the applicant. Section 34 of the Immigration Act is a legislative basis for further inquiries to be held and provides for what was done in this case: the commencement of a second inquiry leading to a report and an order for the applicant’s deportation. Even if the Minister had abused the process by gating the applicant (which he has not), resulting in his continuing detention, the latter was afforded the opportunity to seek judicial review in a timely way. Such timely judicial review was the appropriate remedy and satisfied the requirements of fundamental justice.

3) It was submitted that delay has been so great in this case as to result in a breach of the applicant’s right to liberty and security of the person under section 7 of the Charter. As in the case of his “gating” argument, the applicant challenged the deportation inquiry process in that it extended his detention, and the remedy he sought was suspension of his deportation order. There is a public interest in detaining a person when there are reasonable grounds for believing that he would not appear for inquiry or removal. This public interest must be weighed against the liberty interest of the individual. The most satisfactory course of action will frequently be to detain the individual but to expedite the proceedings, which was done in this case. The relief sought by the applicant, namely the suspension of his deportation order, was not appropriate nor was any relief, other than a timely judicial review, necessary to meet the requirements of fundamental justice.

4) According to the applicant, the deportation order of July 7, 1995 was defective, in so far as it was based on the offence of bail jumping, partly because it was not a condition of his bail that he surrender in New York State. Although the bail order did not contain express words requiring subsequent appearance by the applicant, it did order him to “promptly perfect his appeal”. The Adjudicator made no error in concluding that a prima facie case of bail jumping had been made out. The argument that bail jumping is subsidiary is without merit. The fact that section 159 of the Criminal Code has been declared unconstitutional did not extinguish the sodomy convictions in the United States, nor did it extinguish the offence of bail jumping in either country. The applicant jumped bail in the United States. There is an equivalent offence in Canada and, therefore, subparagraph 19(2)(a.1)(ii) of the Immigration Act is applicable.

5) As to the applicant’s misrepresentations to Canadian immigration officers, the only issue was whether these misrepresentations were material. Even if the applicant’s sodomy convictions would not have been a basis for his removal by reason of the decision of Reed J. striking down section 159 of the Criminal Code, disclosure of these convictions would have led immigration officers to ascertain that the applicant had not appeared for sentencing when required. It was therefore a material misrepresentation not to inform immigration officers of applicant’s sodomy convictions and his failure to appear for sentencing.

6) The applicant argued that the Adjudicator erred by refusing to consider a number of factors when she decided to issue a deportation, rather than a departure, order. That argument ignored the question of whether he should be able to return to Canada without the written consent of the Minister. Having come to the conclusion that the Minister’s consent should be required in the case of the applicant, the Adjudicator was required by statute to issue a deportation order, regardless of the other considerations advanced by the applicant. In doing so, she acted in accordance with the Immigration Act and made no error.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

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], ss. 7, 24(1).

Criminal Code, R.S.C., 1985, c. C-46, ss. 145(2) (as am. by R.S.C., 1985 (1st Supp.), c. 27, s. 20), 159 (as am. by R.S.C., 1985 (3rd Supp.), c. 19, s. 3).

Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1 (as enacted by S.C. 1990, c. 8, s. 5).

Immigration Act, R.S.C., 1985, c. I-2, ss. 19(1)(c.1)(i) (as enacted by S.C. 1992, c. 49, s. 11), 19(2)(a.1)(ii) (as enacted idem), 27(2)(a) (as am. idem, s. 16), (g), 32(6) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 11), (7) (as am. by S.C. 1992, c. 49, s. 21), 34, 55(1), 103 (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 27; S.C. 1992, c. 49, s. 94).

N.Y Penal Law § 215.56 (Consol. 1984).

CASES JUDICIALLY CONSIDERED

APPLIED:

Moore v. Minister of Manpower and Immigration, [1968] S.C.R. 839; (1968), 69 D.L.R. (2d) 273; Shepherd v. Canada (Minister of Employment and Immigration) (1989), 70 O.R. (2d) 766; 52 C.C.C. (3d) 388 (H.C.); affd (1989), 70 O.R. (2d) 765; 52 C.C.C. (3d) 386 (C.A.); Hernandez v. Minister of Employment and Immigration (1993), 154 N.R. 231 (F.C.A.); Sahin v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 214 (1994), 85 F.T.R. 99 (T.D.).

CONSIDERED:

Halm v. Canada (Minister of Employment and Immigration), [1995] 2 F.C. 331 (1995), 91 F.T.R. 106; 28 Imm. L.R. (2d) 252 (T.D.); Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779; (1991), 84 D.L.R. (4th) 438; 67 C.C.C. (3d) 1; 8 C.R. (4th) 1; 129 N.R. 81; Parker v. Canada (Solicitor General) (1990), 73 O.R. (2d) 193; 57 C.C.C. (3d) 68; 78 C.R. (3d) 209 (H.C.).

REFERRED TO:

R. v. Askov, [1990] 2 S.C.R. 1199; (1990), 75 O.R. (2d) 673; 74 D.L.R. (4th) 355; 59 C.C.C. (3d) 449; 79 C.R. (3d) 273; 49 C.R.R. 1; 42 O.A.C. 81; Akthar v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 32 (1991), 14 Imm. L.R. (2d) 39 (C.A.); R. v. Pearson, [1992] 3 S.C.R. 665; Canada v. Schmidt, [1987] 1 S.C.R. 500; (1987), 39 D.L.R. (4th) 18; 33 C.C.C. (3d) 193; 58 C.R. (3d) 1; 28 C.R.R. 280; 20 O.A.C. 161; 76 N.R. 12; Minister of Manpower and Immigration v. Brooks, [1974] S.C.R. 850; (1973), 36 D.L.R. (3d) 522.

AUTHORS CITED

La Forest, Anne Warner. La Forest’s Extradition to and from Canada, 3rd ed. Aurora, Ont.: Canada Law Book, 1991.

Oxford English Dictionary, 2nd ed. Oxford: Clarendon Press, 1989.

APPLICATION for judicial review of a deportation order, and of a decision to detain the applicant under section 103 of the Immigration Act, as renewed thereafter, resulting in his continued detention. Application dismissed.

COUNSEL:

Paul Slansky for applicant.

Donald MacIntosh for respondent.

SOLICITORS:

Slansky & Pringle, Toronto, for applicant.

Deputy Attorney General of Canada for respondent.

The following are the reasons for order rendered in English by

Rothstein J.

INTRODUCTION

This is a judicial review of:

(1) A deportation order made against the applicant by Adjudicator C. Simmie on July 7, 1995; and

(2) A decision dated March 13, 1995 to detain the applicant pursuant to section 103 of the Immigration Act, R.S.C., 1985, c. I-2 [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 27; S.C. 1992, c. 49, s. 94], as renewed thereafter, resulting in his continued detention.

This matter first came on before me on August 1, 1995, by way of an application to stay the deportation of the applicant and to have him released on bail. A stay of deportation proceedings was ordered but no order was made releasing the applicant on bail. Because the applicant was in detention, I ordered that the leave and judicial review proceedings be dealt with on an expedited basis. In the event that leave was granted, hearing dates of September 19, 20, 21 and 23, 1995 were scheduled.

Counsel for the parties contacted the Court in early September to advise that the transcript of proceedings before Adjudicator Simmie had not been made available in sufficient time for applicant’s counsel to prepare a memorandum of argument in accordance with the schedule originally agreed upon. After considering various alternatives, including other possible hearing dates which the Court Registry advised could not be scheduled for some months, I decided to hear the matter on the dates originally fixed based solely on oral argument without the benefit of memoranda. At the hearing, after initial submissions from counsel for the applicant and respondent, I granted leave and proceeded to hear the judicial review.

ISSUES AND RELIEF SOUGHT

The issues raised by the applicant are:

(1) The deportation order was made in contravention of the 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] (hereinafter the Charter), because it constitutes a by-passing of extradition. If he is deported, the applicant will be subjected to a greater penalty than if he is extradited, contrary to his security of the person rights under section 7 of the Charter.[1] The deportation order should therefore be set aside.

(2) The Minister is engaged in gating, i.e. keeping the applicant in detention based upon grounds which could have been dealt with earlier, but which were only advanced when a deportation order based on previously advanced grounds was set aside. This constitutes an abuse of the process.

(3) The applicant has been in detention since April 16, 1993, arguably an unreasonably long time contrary to his liberty interest under section 7 of the Charter. The appropriate Charter relief suggested by counsel for the applicant both in respect of gating and delay would be to suspend the operation of the applicant’s deportation order to enable him to depart Canada on his own volition to a destination of his choice.

(4) The Adjudicator based the July 7, 1995 deportation order on the applicant’s bail jumping in New York State. This was unlawful because:

(a) it was not a condition of his bail that the applicant surrender himself in New York State;

(b) the “reasonable grounds to believe” standard of proof in subparagraph 19(2)(a.1)(ii) [as enacted by S.C. 1992, c. 49, s. 11] of the Immigration Act is unconstitutional as it is inconsistent with the presumption of innocence enshrined in the Charter;

(c) the primary offence (sodomy) which gave rise to the applicant’s alleged bail jumping in New York State is not equivalent to any offence in Canada and therefore the subsidiary offence (bail jumping) cannot stand alone as grounds for deportation.

(5) The Adjudicator based the July 7, 1995 deportation order on the applicant’s misrepresentations to Canadian immigration officers. This was unlawful because the misrepresentations were not material.

(6) The Adjudicator unlawfully refused to consider relevant matters that would have led her to issue a departure order rather than a deportation order.

The applicant requests the following relief:

(1) An order that the deportation order of July 7, 1995, be declared invalid and be quashed;

(2) In the alternative, an order that the deportation order be changed into a departure order;

(3) An order releasing the applicant on bail or allowing him to depart to a destination of his choice from custody.

FACTS

On August 3, 1990, the applicant was convicted in New York State of the following charges:

(1) Sodomy in the third degree (oral sex with someone less than 17 years old).

(2) Endangering the welfare of a child (showing pornographic film to male under age of 16 years and masturbating self in front of “child”).

(3) Sodomy in the third degree (oral and anal sex with someone less than 17 years old).

(4) Sodomy in the third degree (oral and anal sex with someone less than 17 years old).

(5) Sodomy in the third degree (oral sex with someone less than 17 years old).

(6) Sodomy in the third degree (oral and anal sex with someone less than 17 years old).

(7) Endangering the welfare of a child (showing pornographic films to a male under age of 16 years and masturbating in front of “child”).

(8) Endangering the welfare of a child (showing pornographic films to a male under the age of 16 years).

The applicant was released on bail pending appeal. On February 23, 1993, the applicant’s final appeal was denied by the New York Court of Appeals. On February 25, 1993, the applicant was ordered to surrender himself for sentencing on March 1, 1993. On March 1, 1993, the applicant did not surrender himself as ordered but entered Canada. He did not disclose to Canadian immigration officers his convictions for sodomy or endangering the welfare of a child, or that he was entering Canada on the same date that he had been ordered to appear in court in New York State for sentencing.

On April 16, 1993, the applicant was arrested in Toronto. On April 18, 1993, two reports were issued relating to the applicant’s sodomy convictions and alleged misrepresentations to Canadian immigration officials. On May 28, 1993, an inquiry was conducted which resulted in a deportation order being issued against the applicant based on subparagraph 19(1)(c.1)(i) [as enacted idem] and paragraph 27(2)(a) [as am. idem, s. 16] of the Immigration Act and in particular, his sodomy convictions in New York State. Subparagraph 19(1)(c.1)(i) and paragraph 27(2)(a) provide:

19. (1) No person shall be granted admission who is a member of any of the following classes:

…

(c.1) persons who there are reasonable grounds to believe

(i) have been convicted outside Canada of an offence that, if committed in Canada, would constitute an offence that may be punishable under any Act of Parliament by a maximum term of imprisonment of ten years or more, or

…

27. ...

(2) An immigration officer or peace officer shall, unless the person has been arrested pursuant to subsection 103(2), forward a written report to the Deputy Minister setting out the details of any information in the possession of the immigration officer or peace officer indicating that a person in Canada, other than a Canadian citizen or permanent resident, is a person who

(a) is a member of an inadmissible class, other than an inadmissible class described in paragraph 19(1)(h) or 19(2)(c);

After he was ordered deported, the applicant brought an application for habeas corpus to the Ontario Court General Division. This application was denied on October 21, 1993. The applicant also initiated a refugee claim. On May 31, 1994, the refugee claim was denied by the Immigration and Refugee Board. No appeal was taken from this decision.

On November 22, 1993, in court file IMM-7073-93, the applicant sought judicial review in this Court of the deportation order of May 28, 1993. An order extending time was granted and in June 1994, leave was granted.

On February 24, 1995 Reed J. issued reasons granting the judicial review [[1995] 2 F.C. 331(T.D.)], and on March 14, 1995 she issued an order setting aside the deportation order. She found that section 159 of the Criminal Code, R.S.C., 1985, c. C-46, as amended [as am. by R.S.C., 1985 (3rd Supp.), c. 19, s. 3], to which the applicant’s sodomy convictions were found to have been equivalent by the Adjudicator under subparagraph 19(1)(c.1)(i) of the Immigration Act, was unconstitutional. Section 159 reads:

159. (1) Every person who engages in an act of anal intercourse is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or is guilty of an offence punishable on summary conviction.

(2) Subsection (1) does not apply to any act engaged in, in private, between

(a) husband and wife, or

(b) any two persons, each of whom is eighteen years of age or more,

both of whom consent to the act.

(3) For the purposes of subsection (2),

(a) an act shall be deemed not to have been engaged in in private if it is engaged in in a public place or if more than two persons take part or are present; and

(b) a person shall be deemed not to consent to an act

(i) if the consent is extorted by force, threats or fear of bodily harm or is obtained by false and fraudulent misrepresentations respecting the nature and quality of the act, or

(ii) if the court is satisfied beyond a reasonable doubt that the person could not have consented to the act by reason of mental disability.

Reed J. found that section 159 discriminated against homosexuals, as the age of consent, as set out in section 159 in respect of sodomy, is eighteen, while the age of consent in other related sections dealing with consent for heterosexual activity is fourteen. As a result, the applicant was convicted of an offence outside Canada, but not one which, if committed in Canada, would constitute an offence punishable by a maximum term of ten years or more. Therefore, the Adjudicator could not base a deportation order on subparagraph 19(1)(c.1)(i) of the Immigration Act in respect of the applicant’s sodomy convictions in New York State.

On March 3, 1995, a direction was issued for an inquiry based on the applicant’s alleged bail jumping in New York State, misrepresentation to immigration officials and his visitor status. On March 13, 1995, a further detention review was conducted pursuant to subsection 103(6) [as am. by S.C. 1992, c. 49, s. 94] of the Immigration Act.[2] The applicant continued in detention.

On April 10, 1995, pursuant to the March 3, 1995 direction, an inquiry was convened. This inquiry culminated in the deportation order issued against the applicant on July 7, 1995.

The basis of the July 7, 1995 deportation order was that, pursuant to subparagraph 19(2)(a.1)(ii) of the Immigration Act, there were reasonable grounds to believe that the applicant had committed the act of bail jumping in New York State, and that the applicant had come into Canada by reason of misrepresentation of material facts in accordance with paragraph 27(2)(g) [as am. idem, s. 16] of the Immigration Act. Subparagraph 19(2)(a.1)(ii) and paragraph 27(2)(g) provide:

19. ...

(2) No immigrant and, except as provided in subsection (3), no visitor shall be granted admission if the immigrant or visitor is a member of any of the following classes:

…

(a.1) persons who there are reasonable grounds to believe

…

(ii) have committed outside Canada an act or omission that constitutes an offence under the laws of the place where the act or omission occurred and that, if committed in Canada, would constitute an offence that may be punishable by way of indictment under any Act of Parliament by a maximum term of imprisonment of less than ten years,

except persons who have satisfied the Minister that they have rehabilitated themselves and that at least five years have elapsed since the expiration of any sentence imposed for the offence or since the commission of the act or omission, as the case may be;

…

27. ...

(2) An immigration officer or peace officer shall, unless the person has been arrested pursuant to subsection 103(2), forward a written report to the Deputy Minister setting out the details of any information in the possession of the immigration officer or peace officer indicating that a person in Canada, other than a Canadian citizen or permanent resident, is a person who

…

(g) came into Canada or remains in Canada with a false or improperly obtained passport, visa or other document pertaining to that person’s admission or by reason of any fraudulent or improper means or misrepresentation of any material fact, whether exercised or made by himself or by any other person,

It appears that overstaying visitor status was not considered a ground for deportation as the applicant continued to be detained by the Minister throughout the period.

DISGUISED EXTRADITION

The applicant alleges that in the circumstances of this case, the deportation order of July 7, 1995, amounts to an unfair by-passing of, or disguised extradition. He says that the proper course of action in this case is extradition. If the applicant is extradited to the United States, he may only be sentenced in the U.S. for the crimes for which he has been extradited. This is known as the rule of speciality and it is intended to protect against possible abuses in the extradition process. As I understand the applicant’s position, he cannot be extradited to the United States for his convictions for sodomy in the third degree because those offences are not now recognized in Canada as a result of the judgment of Reed J. striking down section 159 of the Criminal Code. The applicant’s argument in this instance is based on the rule of double criminality which requires that to support extradition, the crime committed must be a crime under the laws of both the country requesting extradition and the country extraditing the individual. In this case, under extradition, any penalty that may be imposed upon the applicant will be in respect of a lesser offence than sodomy in the third degree, i.e. endangering the welfare of a child. On the other hand, if he is deported there is no such restriction, and the applicant may be penalized for his sodomy convictions. Therefore, the applicant wishes to be extradited rather than deported.

Counsel for the applicant argues that except in trivial cases, if by deportation, an individual could be subjected to criminal proceedings or penalties that he or she could not be subjected to if extradited, it would be unfair to deport the person, because deportation would constitute a deprivation of security of the person contrary to section 7 of the Charter. In support of this argument, counsel relies on Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779, in which La Forest J. states at page 835:

I can see no reason why the same general approach should not apply to extradition. One of the basic purposes of that procedure is to ensure that a specific kind of undesirable alien should not be able to stay in Canada. It is, no doubt, true that extradition and deportation do not always have the same purpose, for cases can arise where they serve different ends, and fairness may demand that one procedure be used rather than the other. But that is not this case, and I would be concerned about encouraging a resort to deportation rather than extradition with its inbuilt protections geared to the criminal process. [Emphasis added.]

Applicant’s counsel made a similar argument before Reed J. in the applicant’s proceedings in Halm v. Canada (Minister of Employment and Immigration), [1995] 2 F.C. 331(T.D.). She stated at page 367:

Whatever Mr. Justice La Forest may have meant by his statement [at page 835] that “cases can arise where ... fairness may demand that one procedure be used rather than the other,” I do not think the statement has any applicability in this case. All of counsel’s arguments are directed at general characteristics of the extradition and deportation proceedings. There is no evidence of any particular unfairness which is likely to arise.

Initially, I would observe that the argument of counsel for the applicant misses the basic difference between deportation and extradition. Deportation occurs when a state wishes to expel a person. Extradition occurs when a state wishes to retrieve a person, and can only be carried out when a request for extradition has been received. Canada cannot be precluded from taking steps to deport an individual merely because the effect of deportation may be that the individual faces greater sanctions in the country to which he is deported than if he is extradited. Canada has no control over whether a foreign state wishes a person extradited, and the Government of Canada cannot be precluded from acting in the public interest to deport undesirable aliens.

I am in agreement with the statement of Reed J. at page 367. Even if, as the applicant argues, the effect of deportation must be considered as well as the purpose, La Forest J.’s comments in Kindler do not support the general principle asserted by applicant’s counsel. Counsel says that when deportation might result in a penalty greater than one that would result from extradition, extradition must be resorted to. But, at most, La Forest J.’s comments can only be taken to mean that, based on the facts of a particular case, fairness may demand the use of one procedure or the other. There is nothing in the evidence in this case to indicate any particular unfairness to the applicant. As Reed J. stated, the applicant’s attack on deportation is based on the general characteristics of deportation and extradition. Clearly, this is not what La Forest J.’s comments were meant to address.

The passage relied upon in Kindler by the applicant does not have the effect for which he argues. According to prior jurisprudence, to support a disguised extradition argument, an applicant had to show improper purpose or bad faith on the part of the government. In Moore v. Minister of Manpower and Immigration, [1968] S.C.R. 839, Cartwright C.J. states at page 844:

To decide that the deportation proceedings are a sham or not bona fide it would be necessary to hold that the Minister did not genuinely consider it in the public interest to expel the appellant. This is the view expressed in the Soblen’s case, supra, and I agree with it.

In Shepherd v. Canada (Minister of Employment and Immigration) (1989), 70 O.R. (2d) 765 (C.A.), Austin J., (as he then was), in the Ontario weekly Court [(1989), 70 O.R. (2d) 766] states, at pages 775-776 in respect of disguised extradition:

From the reasons of the two courts, the following principles emerge:

1.   If the purpose of the exercise is to deport the person because his presence is not conducive to the public good, that is a legitimate exercise of the power of deportation.

2.   If the purpose is to surrender the person as a fugitive criminal to a state because it asked for him, that is not a legitimate exercise of the power of deportation.

3.   It is open to the courts to inquire whether the purpose of the government was lawful or otherwise.

4.   The onus is on the party alleging an unlawful exercise of power. It is a heavy onus.

5.   To succeed, it would be necessary to hold that the Minister did not genuinely consider it in the public interest to expel the person in question.

6.   The adoption of the Charter has not lessened the onus.

The Ontario Court of Appeal denied the appeal from Austin J. Nonetheless, counsel for the applicant points out that the Court of Appeal stated, at page 781:

... we may not agree with all of the learned weekly court judge’s reasons in the decision appealed from….

However, I can see nothing in the judgment of the Court of Appeal to derogate from the principles set forth by Austin J.

Applicant’s counsel argues that Kindler changed the law so as to make the effect of either procedure relevant, i.e. if deportation could result in a greater penalty than extradition, deportation would be unfair and contrary to the Charter. However, in La Forest’s Extradition to and from Canada, 3rd ed., by Anne Warner La Forest, published in 1991, express reference is made to the Supreme Court decision in Kindler in an addendum at page xiii. There is no reference to a change in the law as asserted by counsel for the applicant. On the contrary, at pages 42-43, the learned author explains:

In practice, the power to deport aliens may be used as a form of disguised extradition where the deportee is deported to a state that wishes to try him for an alleged offence. The aims of extradition and deportation are clearly distinct. The object of extradition is to return a fugitive offender to the country which has requested him for trial or punishment for an offence committed within its jurisdiction. Deportation, on the other hand, is governed by the public policy of the state that wishes to dispose of an undesirable alien. As such, case law has consistently determined that unless there is clear evidence establishing that the Minister did not genuinely consider it in the public interest to order the fugitive’s deportation, any challenge to the validity of the deportation procedure will fail.

This position has not changed under the Canadian Charter of Rights and Freedoms [Underlining mine.]

And at page 45 she states:

The conclusion that must be reached is that it will be an extremely rare case where a challenge to deportation proceedings will be accepted. A successful challenge would require either a finding that the Minister has ordered deportation proceedings for the purpose of avoiding extradition proceedings, or a finding that the foreign state to which the individual is to be deported will act in a shocking or oppressive manner. For obvious reasons, in the absence of very persuasive evidence, a court will be reluctant to make either of these findings.

It is quite clear that Kindler has not changed the law as applicant’s counsel asserts, and that Shepherd, which indeed is referred to in Kindler, is still good law. There is no legal authority for the proposition that simply because deportation to a foreign country may result in a greater penalty to an individual than extradition to that country, that deportation is contrary to section 7 of the Charter.

Turning then to improper purpose, counsel for the applicant argues that, in this case, there is improper purpose by the Minister. Some of the same arguments made before me were made before Reed J. They include:

(1) The Minister originally proceeded with a deportation order based upon the applicant’s sodomy offences rather than the lesser matters that might have led only to a departure order. This demonstrates the Minister wanted to deport the applicant to New York State and to prevent him from departing to a destination of his own choice pursuant to a departure order.

(2) There was evidence that the Minister was in a rush to send the applicant to New York State. Contrary to the undertaking of counsel for the Minister on June 8, 1994, not to deport the applicant pending further proceedings, the Minister’s departmental officials attempted to deport him on June 13, 1994. Only through the intervention of counsel for the Minister was this prevented.

(3) There was evidence that the United States wanted the applicant, but they were waiting for the Canadian Government to deport him.

(4) There had been ongoing communications between Canada and the United States. The United States was assisting Canada in deporting the applicant.

(5) The United States had issued a conditional request for extradition.

Reed J. rejected these arguments as do I. The fact that the Minister chose the most serious of the applicant’s crimes in the United States upon which to base deportation proceedings is not evidence of bad faith or improper purpose. As well, although some officials of the Minister attempted to deport the applicant, it was the intervention of the Minister’s counsel that prevented it. The fact that the United States wanted the applicant back or that there were communications between U.S. and Canadian officials is also not evidence of bad faith or improper motive. Nor does the issuance of a conditional request for extradition by the United States indicate that anything improper was done by Canada in taking steps to deport the applicant. Indeed, counsel does not argue that the applicant is not undesirable or that he should not be forced to leave Canada.

In addition to the above, two new arguments were made before me as to improper purpose:

(1) The case presenting officer in the proceedings leading to the July 7, 1995 deportation order admitted that the initial proceedings based on the sodomy convictions were with a view to deporting the applicant as opposed to giving him the option to depart. As such, it is alleged they were a tactic to force him to go back to New York State as opposed to another destination of his choice. This is strong new evidence that the deportation is disguised extradition and is improper.

(2) The conditional request for extradition made by the U.S. cannot be acted on as long as the applicant is in custody. There is an ulterior purpose in continuing to keep him in custody and commencing new deportation proceedings, namely the intention to deport instead of extradite.

As to the first argument, the case presenting officer in the inquiry proceedings leading to the July 7, 1995 deportation order stated at pages 44-45:

It is the Department’s belief that the actual holding of this inquiry is fully within our rights. It’s fully within our rights to bring further allegations forward if we’re aware of violations of the Act. It was not the Department, it was not the big brother or the boogie man that decided to proceed with the allegation that we did proceed with at the inquiry. It was my decision as the Case Presenting Officer in charge of the case at the time to proceed with what appeared to be the most straight forward—looking back now it may not have been—but the most straight forward allegation at the time. Why proceed with a bunch of allegations which may result in various types of Removal Orders if you have an allegation that appears to be valid and appears to follow the Charter at the time and appears to lead to a Deportation Order which is the most serious Removal Order that we have?

There is nothing implausible about this explanation. With hindsight, proceeding on the sodomy convictions was not the most expeditious approach to deporting the applicant. But that is a far cry from any suggestion that the proceedings were improper or that they constituted disguised extradition.

As to the second argument, Reed J. issued her reasons setting aside the applicant’s May 28, 1993 deportation order (based on his sodomy convictions) on February 24, 1995. The order setting aside the same deportation order was not issued until March 14, 1995. In this interval, the Minister caused a new inquiry to be commenced based on grounds other than the applicant’s sodomy convictions, and on March 13, 1995, it was ordered that the applicant continue to be detained because it was thought by the Adjudicator that there were reasonable grounds to believe he would not appear at the new inquiry proceedings.

Counsel for the applicant says the inference to be drawn from this sequence of events is that the Minister was trying to preclude the conditional request for extradition of the United States from becoming operative. He says this evidences an improper purpose by the Minister.

I do not draw the inference that counsel suggests. First, to draw such an inference would, by implication, mean that I was accepting that the Court, in delaying its issuance of the order setting aside the applicant’s deportation order, was itself a participant in the improper purpose of the Minister. This Court has no interest in assisting any party in advancing any improper purpose. Nor is there any indication that the Court was misled. There is no evidence that the Court’s purpose in not issuing the setting aside order until March 14, 1995 was to preclude the conditional extradition request of the United States from becoming operative. On the contrary, Reed J.’s express reason for delaying the issuance of the order was to enable counsel to take steps for the certification of a serious question of general importance for appeal to the Federal Court of Appeal.[3]

As to the Minister’s actions, I think another inference is more readily plausible, namely, that the Minister wanted Canada to keep control of the applicant because he considered the applicant an undesirable alien and wanted to ensure that he would leave Canada. In addition, if deported, the applicant would require a ministerial permit to re-enter. Subsection 55(1) of the Immigration Act provides:

55. (1) Subject to section 56, where a deportation order is made against a person, the person shall not, after he is removed from or otherwise leaves Canada, come into Canada without the written consent of the Minister unless an appeal from the order has been allowed.

It is not improper for the Minister to have as a purpose for deportation and continued detention, the removal of an undesirable alien, control over the alien to ensure that he leaves, and the prohibition on the alien from re-entering Canada without the consent of the Minister. The fact that holding the applicant in detention has the ancillary effect that possible extradition proceedings may not be commenced, is incidental. As Reed J. stated at page 367:

I see nothing inherently unfair in a foreign state delaying extradition proceedings when it is known that the individual in question is likely to be deported in any event.

In the result, I am not satisfied the applicant has demonstrated any improper purpose by the Minister in the deportation and detention proceedings taken against him. Fundamentally, irrespective of the action or inaction of a foreign government in instituting the extradition process, Canada is free to initiate and carry out effective deportation proceedings in respect of an alien that Canada does not wish to remain in this country. It is clear that this is the Minister’s purpose in this case and such purpose is quite proper.

GATING

Applicant’s counsel argues that the Minister had an obligation in April 1993, when the first inquiry was convened, or at least at some time before Reed J. set aside the May 28, 1993 deportation order, to inquire into all reasons as to whether he should be subject to deportation. He says that by commencing a second inquiry in March 1995 into bail jumping and misrepresentation when the May 28, 1993 deportation order based on the sodomy convictions in New York State was set aside, the Minister abused the process by “gating” the applicant. Because the applicant was in detention, this abuse of the process deprived the applicant of his right to liberty, contrary to section 7 of the Charter.

In Parker v. Canada (Solicitor General) (1990), 73 O.R. (2d) 193 (H.C.), Henry J. describes “gating” in the following terms, at page 210:

Carried to its extreme, withholding an arrest warrant leads to “revolving door justice” when an offender, having served his sentence for conviction of one offence, upon release is arrested and returned to custody for another offence for which he could and ought to have been arrested promptly after the warrant was issued and brought to trial.

In Parker, it was found that the delay in serving an arrest warrant deprived an accused of a timely judicial review of his parole ineligibility. The appropriate remedy was to treat the accused as if he had been arrested on the date on which the arrest warrant was issued (and not served) for purposes of setting the date for judicial review.

I have already indicated that I do not infer from the evidence that the Minister was acting with improper motive in the bringing of a second deportation inquiry after Reed J. issued her reasons setting aside the May 28, 1993 deportation order. Further, there is a legislative basis for further inquiries to be held. Section 34 of the Immigration Act states:

34. No decision given under this Act prevents the holding of a further inquiry by reason of the making of another report under paragraph 20(1)(a) or subsection 27(1) or (2) or by reason of arrest and detention for an inquiry pursuant to section 103.

On its face, the legislation provides for what was done in this case; the commencement of a second inquiry leading to a report and an order for the applicant’s deportation.

Nonetheless, counsel for the applicant argues that section 34 does not authorize a second inquiry when grounds for that inquiry are known and could have been advanced at the earlier inquiry. However, I see nothing in section 34 that implies that it is not applicable in these circumstances. Section 34 is cast in broad terms. Taken to its logical conclusion, applicant’s argument means that if there are grounds for deportation that are known but are not advanced by the Minister in an inquiry, section 34 does not authorize a further inquiry, and Canada loses its right to deport an undesirable alien. Not even applicant’s counsel argues for such a result.

Even if I am wrong and section 34 does not, in these circumstances, authorize a second inquiry because there has been an abuse of the process arising from the bringing of the second inquiry on grounds which could have been dealt with in the first inquiry, I do not think the relief sought by the applicant would be appropriate. Applicant’s counsel submits that the appropriate remedy for “gating” in these circumstances would be to fashion a remedy pursuant to subsection 24(1) of the Charter[4] and specifically to suspend the applicant’s deportation order to enable him to voluntarily leave Canada. (According to counsel, the applicant will voluntarily leave but does not want to be forced to go back to New York State pursuant to a deportation order to face incarceration for his sodomy convictions. He would be prepared to voluntarily depart Canada to another destination.)

Applicant’s counsel gets to subsection 24(1) of the Charter by combining the “gating” argument with the applicant’s continuing detention which he says constitutes a breach of section 7 of the Charter.

Applicant counsel’s weaving the deportation process together with detention for the purpose of remedy confuses the issue. In my view, it is necessary to consider the deportation process and the applicant’s detention separately. Quite simply, an applicant who is detained cannot be in a better position to seek relief in respect of the operation of a deportation order than one who is not. The causa causans for detention is not that an individual entered Canada or that he or she is to be deported, but that there are reasonable grounds to believe that the individual is a danger to the public or that he or she will not appear for removal. If section 7 considerations arise, it is because the alleged gating has caused the applicant to be detained longer than would have been the case had all grounds for deportation been advanced by the Minister initially. The applicant’s remedy, therefore, must pertain to his continuing detention and not to deportation.

In Parker, the arrest warrant was not quashed. Rather, the accused was considered arrested on the date the arrest warrant was issued (and not served) in order to permit an earlier judicial review of his parole ineligibility. Following the approach in Parker, if the Minister had abused the process by gating the applicant (which I do not think he has), resulting in the applicant’s continuing detention, the applicant should be afforded the opportunity to seek judicial review of his detention order in a timely way.

In this respect, it is of significance that the applicant did not seek to challenge his continuing detention until July 11, 1995, although it would have been open for him to do so much earlier. He could have sought judicial review of the March 13, 1995 detention order immediately after it was made. He did not do so.

From the time when judicial review proceedings were commenced on July 11, 1995, the applicant has been given the benefit of a timely process. The matter first came on for hearing by way of a stay of deportation proceedings on August 1, 1995. The Court arranged for the hearing of the judicial review at the earliest dates on which counsel were available. Written facta were dispensed with. The issue of leave was dealt with orally at the commencement of the judicial review proceedings. The applicant has received the benefit of as timely a judicial review as is possible in the circumstances. In my opinion, even if the Minister had abused the process resulting in the applicant’s continued detention, a timely judicial review is the appropriate remedy and satisfies the requirements of fundamental justice in these circumstances.

DELAY

I now turn to whether there has been an abuse of the process by reason of the time that has transpired since the applicant’s arrest on April 16, 1993. Counsel for the applicant submits that apart from the gating argument, delay, in of itself, has been so great in this case as to result in a breach of the applicant’s right to liberty and security of the person under section 7 of the Charter. As is apparent, the distinction between this argument and the “gating” argument is subtle.

The applicant relies on the principles set forth in R. v. Askov, [1990] 2 S.C.R. 1199 which require consideration of the length of delay, reason for and who caused the delay, and waiver by and prejudice to the accused. The applicant says that except for a short delay initially to obtain counsel, all delays since June 1993 have been the fault of the Minister, the tribunals involved or the Court. He says there has been no waiver. Finally, he has been detained for approximately two and a half years which he says constitutes actual prejudice. In this respect, he claims he meets the test in Akthar v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 32(C.A.) that the onus is on the applicant to prove prejudice.

As in the case of his “gating” argument, the applicant does not raise delay as a basis for challenging the deportation order of July 7, 1995. Rather, he challenges the deportation inquiry process in that it extended his detention. Also, as in the “gating” argument, the remedy he seeks is suspension of his deportation order. Such remedy, he says, should satisfy the Minister that he does not seek to stay permanently in Canada. At the same time, the suspension would give him an opportunity to voluntarily depart to a destination other than New York State.

Of some guidance to a consideration of the delay issue are the comments of Robertson J.A. in Hernandez v. Minister of Employment and Immigration (1993), 154 N.R. 231 (F.C.A.), at pages 232-233:

It is understandable that an appellate court would not wish to foreclose absolutely on a Charter argument. A rule without exceptions is more often than not proven to be a source of controversy rather than consensus. At the same time, I am of the view that the above statement must be placed in the context of the incisive analysis which preceded it. Within that framework, it is abundantly clear that the “unreasonable delay” argument cannot be perceived as a fertile basis for setting aside decisions of tribunals. It is probably closer to legal reality for one to presuppose that rarely, if ever, will the argument be successfully invoked. Counsel should be guided accordingly.

For the reasons I have given in respect of his gating argument, and having regard to Hernandez, the applicant’s delay argument does not support invalidating his deportation order and the applicant does not ask for such relief.

On the other hand, the applicant’s detention is subject to section 7 of the Charter because it is the detention orders that are depriving him of liberty. However, I do not have in the material before me, the actual detention orders made or any reasons for such orders. In any event, it was not the applicant’s submission that the adjudicators failed or refused to have regard for section 7 considerations in successive detention reviews. Rather, the applicant simply says that he has been detained too long and he should therefore be entitled to some relief.

Considerations such as how long the applicant has been in detention and how long he is expected to remain, in the first instance, are to be addressed by adjudicators who conduct detention reviews under section 103 of the Immigration Act. (See Sahin v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 214(T.D.).) The Court’s function is to determine if there are errors in the decision of the tribunal that would afford an applicant relief under section 18.1 of the Federal Court Act [R.S.C., 1985, c. F-7 (as enacted by S.C. 1990, c. 8, s. 5)]. Other than counsels’ indication that the applicant is being detained because there is concern he will not appear for deportation, nothing has been provided to me to indicate what else the adjudicators considered or refused to consider in deciding to continue the applicant’s detention. Absent any evidence that the adjudicators did not properly address section 7 considerations, I cannot find that the decisions to detain the applicant were improperly made.

Furthermore, even if the Court itself was in a position to consider the applicant’s detention as being so unreasonably long as to give rise to a breach of section 7, the relief the applicant seeks is not appropriate. In cases such as this, involving continued detention under section 103 of the Immigration Act, I am of the view that the approach in Sahin, supra, is applicable. There is a public interest in detaining persons when there are reasonable grounds for believing that they would not appear for inquiry or removal. This public interest must be weighed against the liberty interest of the individual. The most satisfactory course of action will frequently be to detain the individual but expedite the proceedings. In this case, the judicial review proceedings were expedited.

If judicial review is successful, the applicant will no longer be subject to deportation and there will be no basis for his continued detention under section 103. If judicial review is unsuccessful, the deportation order should be acted upon by the Minister without delay. In either case, there will be no ongoing detention for which relief is necessary.

For these reasons, I am of the view that the relief sought by the applicant, namely suspension of his deportation order, is not appropriate nor is any relief, other than a timely judicial review, necessary to meet the requirements of fundamental justice. As I have earlier indicated, the applicant has been afforded a timely judicial review.

BAIL JUMPING

The applicant says the deportation order of July 7, 1995 is defective in so far as it is based on the offence of bail jumping in New York State because:

(1) it was not a condition of his bail that the applicant surrender himself in New York State;

(2) subparagraph 19(2)(a.1)(ii) is unconstitutional as its “reasonable grounds to believe” standard is not consistent with the presumption of innocence implied in section 7 of the Charter;

(3) the primary offence of which the applicant was convicted (sodomy) has no equivalence in Canada and therefore any subsidiary offence (bail jumping) also has no Canadian equivalence.

1. It was not a condition of his bail that the applicant surrender himself in New York State.

The evidence before the Adjudicator on the issue of whether the applicant committed the offence of bail jumping in New York State consisted of a number of documents, including the following:

(a) A certificate of disposition indicating that the applicant was convicted on August 3, 1990, of five counts of sodomy in the third degree and three counts of endangering the welfare of a child and that on September 17, 1990, he was sentenced to one and a third to four years on each of the five sodomy counts to run consecutively and to one year on each of the three counts of endangering the welfare of a child, to run concurrently.

(b) An order staying sentence pending appeal dated September 28, 1990. The order provided:

Ordered, that pending the hearing and determination of this application, the judgment of conviction herein, including the sentence imposed thereunder, be and the same is hereby stayed in all respects upon the following conditions:

1.   The defendant shall post cash bail in the amount of $10,000 or insurance company bail bonding in the amount of $20,000 in satisfactory form, and upon posting same shall be released from custody.

2.   The defendant shall not contact any of the victims and

3.   The defendant shall promptly perfect his appeal.

(c) An order dated March 9, 1992 that bail for the applicant be continued in the amount of $10,000 cash or $20,000 insurance company bail bond.

(d) A memorandum of the New York Court of Appeals dated February 23, 1993 confirming the applicant’s convictions.

(e) A notice to surrender to the applicant dated February 25, 1993. The notice provided:

You are hereby DIRECTED to surrender yourself to this court in the Chemung County Courthouse, 224 Lake Street, Elmira, New York on the 1st day of March, 1993 at 1:30 P.M. in order that execution of the judgment of this court be commenced.

TAKE FURTHER NOTICE that, in the event of your failure to appear, a bench warrant to secure your appearance will be issued.

(f) Transcript of the proceedings in the County Court of the State of New York, County of Chemung, on March 1, 1993, at which time counsel for the applicant confirmed that the applicant was aware of the March 1, 1993 sentencing date and indicated that the notice to surrender had been served upon the applicant personally.

(g) A Superior Court warrant dated March 1, 1993 and issued for the applicant because of his failure to appear on March 1, 1993.

(h) An order of the County Court for the County of Chemung dated March 10, 1993 ordering bail forfeited in the following terms:

Henry Halm, having been released on bail pending final determination by the Court of Appeals pursuant to the terms and conditions of a securing order issued by the New York State Supreme Court, Appellate Division, Third Department, on the 9th day of March, 1992, and Henry Halm having failed to appear before this Court, at a Criminal Term, on the 1st day of March, 1993, pursuant to the Order of this Court dated February 25, 1993 which was entered following the final determination by the Court of Appeals and pursuant to CPL §460.60(4) and CPL §460.50(5), it is

ORDERED that the bail in the sum of Twenty Thousand Dollars ($20,000.00) is forfeited, and it is further

ORDERED that the Clerk shall enter judgment against the American Bankers Insurance Company and in favor of the People of the State of New York in the sum of Twenty Thousand Dollars ($20,000.00).

(i) A warrant for arrest dated March 25, 1993 and issued against the applicant for “Unlawfully fleeing the State of New York to avoid confinement”.

(j) A Superior Court warrant dated April 5, 1995 issued for the applicant based on a charge of bail jumping in the second degree.

The argument of counsel for the applicant is that there is no condition in the order of September 28, 1990 that the applicant was required to surrender himself. He refers to article 215.56 of the New York Penal Law which provides:

§ 215.56. Bail jumping in the second degree.

A person is guilty of bail jumping in the second degree when by court order he has been released from custody or allowed to remain at liberty, either upon bail or upon his own recognizance, upon condition that he will subsequently appear personally in connection with a charge against him of committing a felony, and when he does not appear personally on the required date or voluntarily within thirty d days thereafter.

Bail jumping in the second degree is a class E felony. [Emphasis added.]

Applicant’s counsel says that since there was no express condition in the bail order that the applicant subsequently appear personally in connection with the charge, that he has not committed the offence of bail jumping under article 215.56, at least for purposes of subparagraph 19(2)(a.1)(ii) of the Immigration Act.

The bail order does not contain express words requiring subsequent appearance by the applicant. However, it does order him to “promptly perfect his appeal”. The other documentation indicates that the applicant was ordered to surrender himself when all his appeals failed, that he did not do so, that his bail was thereupon forfeited, and that a warrant for his arrest was issued based on the charge of bail jumping in the second degree.

Bail, by definition, is security given to ensure a person’s appearance when required.[5] Bail was ordered forfeited in this case. It is obvious that even though the initial bail order did not expressly use the words of article 215.56 “upon condition that he will subsequently appear personally in connection with the charge”, this indeed is the necessary and only implication of the bail order as confirmed by its reference to him promptly perfecting his appeal and the subsequent order forfeiting bail. No other meaning is possible. It seems that the process in New York State is that when a person is released on bail pending appeal, if he is unsuccessful on appeal, an order requiring him to appear on a specified date for sentencing is then made. The applicant did not appear pursuant to the order requiring his appearance and subsequently a warrant for the applicant, based on a charge of bail jumping in the second degree, was issued.

These facts before the Adjudicator caused her to conclude that not only were there reasonable grounds to believe that the applicant would be found guilty of bail jumping, but that indeed a prima facie case of bail jumping had been made out. I see no error in the Adjudicator’s conclusion.

2.         Subparagraph 19(2)(a.1)(ii) is unconstitutional as its “reasonable grounds to believe” standard is not consistent with the presumption of innocence implied in section 7 of the Charter.[6]

Counsel for the applicant alleges that “reasonable grounds to believe” in subparagraph 19(2)(a. 1)(ii) of the Immigration Act are inconsistent with the presumption of innocence guaranteed by the Charter and that the required standard should be “a prima facie case” as it is in extradition proceedings. Despite the arguments of counsel for the applicant before her that the presumption of innocence is violated by the lower standard of “reasonable grounds to believe” in the Act, and that the standard should be a “prima facie case”, the Adjudicator determined that there was a prima facie case of bail jumping. On the evidence before her, I think she was entitled to arrive at such a conclusion. Accordingly, on the facts of this case, there is no need to analyze the “reasonable grounds to believe” standard in relation to the Charter.

3.         The primary offence of which the applicant was convicted (sodomy) has no equivalence in Canada and therefore any subsidiary offence (bail jumping) also has no Canadian equivalence.

On the issue of equivalency, the Adjudicator found at page 143 of the transcript:

In that regard, I would point out that while the courts here have determined there is no equivalency for the sodomy offenses for which you stand convicted in the United States, there is no challenge to the other three convictions that have been registered against you as far as any other proceedings that should have taken place here in Canada are concerned, and there is no reason to believe that bail in the court case was set solely on the matters relating to the sodomy charges as opposed to matters relating to the entirety of the charges that you faced at the time.

Again, I can find no fault with the Adjudicator’s reasoning. While the Adjudicator determined that the three counts of endangering the welfare of a child were not challenged and therefore provided a basis for the bail jumping offence, I am of the opinion that the Adjudicator did not need to even go this far.

The charge of bail jumping is based on the fact that the applicant did not appear for sentencing in New York for the crimes of which he was convicted in that state. The relevant act that constitutes the offence in New York is bail jumping. If that offence was committed in Canada, paragraph 145(2)(b) [as am. by R.S.C., 1985 (1st Supp.), c. 27, s. 20] of the Criminal Code of Canada would apply:

145. ...

(2) Every one who,

…

(b) having appeared before a court, justice or judge, fails, without lawful excuse, the proof of which lies on him, to attend court as thereafter required by the court, justice or judge,

or to surrender himself in accordance with an order of the court, justice or judge, as the case may be, is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years or is guilty of an offence punishable on summary conviction.

The argument that bail jumping is subsidiary is without merit. The fact that section 159 of the Criminal Code has been declared unconstitutional does not affect the applicant’s conviction in New York State. The Charter does not have extra-territorial effect (see Canada v. Schmidt, [1987] 1 S.C.R. 500, at page 518). It appears that the applicant was properly convicted in New York State of sodomy and he did not appear for sentencing when required. The fact that section 159 of the Criminal Code has been declared unconstitutional does not extinguish that offence and conviction in the United States, nor does it extinguish the offence of bail jumping in either country.

Counsel for the applicant argues that in other circumstances, persons may be convicted of offences which Canada would not recognize, such as political crimes, and it would be unconscionable to return someone for sentencing for political crimes simply because the person jumped bail to avoid such sentencing. However, each case must be dealt with on its own facts. There are safeguards in the Immigration Act such as provision for refugee claims, to preclude undesirable consequences. This is not a case in which such safeguards are applicable. In this case, the applicant was convicted of sodomy and of endangering the welfare of a child. These acts are not political in nature nor were they committed in a country which does not observe democracy or the rule of law.

The applicant jumped bail in the United States. There is an equivalent offence in Canada and, therefore, subparagraph 19(2)(a.1)(ii) of the Immigration Act is applicable.

MISREPRESENTATIONS

The applicant admits he failed to inform Canadian immigration officers at his port of entry to Canada that he had been convicted of offences in New York State, that he did not appear for sentencing as required, and that there were warrants for his arrest in New York State. He agrees that misrepresentation includes failure to inform immigration officers, even if disclosure would only lead to a line of inquiry that might result in removal (see Minister of Manpower and Immigration v. Brooks, [1974] S.C.R. 850, at pages 872-873).

The only issue is whether the misrepresentations were material. The applicant says that because his sodomy convictions in New York State would not (as subsequently found) be a basis for his removal under subparagraph 19(1)(c.1)(i) and because his bail jumping charge was dependent on Canada recognizing his sodomy convictions (which it does not for purposes of subparagraph 19(1)(c.1)(i)), his failure to disclose the offences was not material.

The Adjudicator found, at page 146:

... it is my opinion that as well there has been established in the evidence a clear indication that you did in fact misrepresent material facts which resulted directly in your being admitted to the country not once but twice as a visitor and as such I am satisfied that you are in fact a person who is described in paragraph 27(2)(g) as well.

Applicant’s counsel conceded that if bail jumping was a valid basis for the July 7, 1995 deportation order it was a material misrepresentation for the applicant not to disclose the bail jumping charge to Canadian immigration officers. I have found that bail jumping is a proper basis for the July 7, 1995 deportation order. Further, even if the applicant’s sodomy convictions would not have been a basis for his removal by reason of the decision of Reed J. striking down section 159 of the Criminal Code, disclosure of his sodomy convictions would have led immigration officers to ascertain that the applicant did not appear for sentencing when required. It was, therefore, a material misrepresentation not to inform immigration officers of his sodomy convictions and his failure to appear for sentencing. Accordingly, I conclude the Adjudicator did not err in finding material misrepresentations by the applicant, and that such material misrepresentations were a valid ground for the deportation order of July 7, 1995.

DEPORT—DEPART

The applicant argues that the Adjudicator erred by refusing to consider a number of factors when she decided to issue a deportation order rather than a departure order. He says she refused to consider that a departure order would enable the applicant to choose his destination, while a deportation order would result in the Minister choosing the destination. The applicant further argues that he is prepared to depart Canada from custody so that there would be no concern of his failing to depart.

The relevant provisions of the Immigration Act in this respect are subsections 32(6) [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 11] and 32(7) [as am. by S.C. 1992, c. 49, s. 21]:

32. ...

(6) Where an adjudicator decides that a person who is the subject of an inquiry is a person described in subsection 27(2), the adjudicator shall, subject to subsections (7) and 32.1(5), make a deportation order against that person.

(7) Where the person referred to in subsection (6) is a person other than a person described in paragraph 19(1)(c), (c.1), (c.2), (d), (e), (f), (g), (j), (k) or (l) or 27(2)(h) or (i), the adjudicator may, subject to subsection 32.1(5), make a departure order against the person if the adjudicator is satisfied that the person should be allowed to return to Canada without the written consent of the Minister and that the person will leave Canada within the applicable period specified in the regulations for the purposes of subsection 32.02(1).

As seen from these provisions, for the Adjudicator to issue a departure order rather than a deportation order, the applicant must satisfy the Adjudicator both that he will leave Canada within the period specified, and that he should be allowed to return without the written consent of the Minister. As counsel for the Minister points out, the applicant’s arguments simply ignore the question of whether he should be able to return to Canada without the written consent of the Minister. This indeed was an important reason that led the Adjudicator to issue a deportation order. At page 182 she states:

These are circumstances that suggest that you were willing to use this country as it suits your purpose, and I don’t think that’s a suitable reason. I think it provides cause for concern as to your respect for this country and the opportunities that it does have here. It says to me that you need to have the consent of the Minister of Immigration to ensure that you don’t attempt to do this in the future.

Apart from all other considerations, the Adjudicator is required to have regard to whether the Minister’s consent should be a requirement for the applicant to return to Canada. Having come to the conclusion that the Minister’s consent should be required in the case of the applicant, she was required by statute to issue a deportation order, regardless of the other considerations advanced by the applicant. In doing so, she acted in accordance with the Immigration Act and made no error.

CONCLUSION

The judicial review is dismissed.

Counsel shall have one week from the date of these reasons to submit to the Court any serious question of general importance for purposes of appeal. Upon receipt of any such question, the Court will decide whether the question should be certified and if so, any question certified will be included in the order giving effect to these reasons.

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