Date: 19990929
Docket: IMM-5228-98
OTTAWA, ONTARIO, THIS 29th DAY OF SEPTEMBER 1999
PRESENT: THE HONOURABLE MR. JUSTICE MULDOON
BETWEEN:
EBERHARD BERTOLD
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
UPON the applicant's application for judicial review of the decision of the Immigration and Refugee Board's Appeal Division dated September 23, 1998, in which that board held that the deportation order issued against the applicant on November 5, 1996 is valid and that discretionary relief pursuant to paragraph 70(1)(b) of the Immigration Act, R.S.C. 1985, c. I-2 (the Act) is not warranted, and
UPON leave to pursue judicial review having been granted by Mr. Justice Pinard, on May 13, 1999, now
THIS COURT ORDERS that the Immigration Appeal Division's
| 1. admission of evidence relating to outstanding charges against the applicant in Germany was an error of law and it shall be set aside, quashed, and disregarded in these proceedings regarding his application for permanent residence in Canada under the Immigration Act, because such charges have been erased pursuant to German legislation; |
| 2. admission of evidence of criminal records and investigation records in and of Germany, were obtained by Mr. Langreuther's fraud and deception unlawfully against sections 7 and 8 of the Canadian Charter of Rights and Freedoms, and such evidence ought to be excluded from these proceedings under subsection 24(2) of the Charter - accusations do not prove guilt, and ought not to have been mentioned; |
| 3. mention of conditions in Germany (p. 29), the country into which the applicant would be deported, was unlawful pursuant to the Court's judgment in Chieu v. M.C.I. (1988) 234 N.R. 112 (F.C.A.) and presents one reason to quash the IAD's decision which is here under judicial review; |
| 4. assessment of the gravity of the applicant's misrepresentation was an appropriate exercise of that board's jurisdiction (p. 26 of the reasons) as noted in paragraph 58 of the Court's reasons herein; |
| 5. finding that the applicant's excuses and explanations for his misrepresentations, both of omission and commission, were implausible and unacceptable were wholly within the IAD's jurisdiction and were probably correct; |
| 6. finding that the applicant was not in the least remorseful for his offences was within its jurisdiction, and will not be disturbed by this Court; |
| 7. finding that the BZRG did not erase the applicant's U.S. (Texan) conviction in contemplation of the Immigration Act, was correct and is sustained subject to the answer to the question certified herein; and |
THIS COURT FURTHER ORDERS that the following question be, and it is hereby certified:
| Is the enacted pardon from crime accorded by the country of a party's citizenship (here, the BZRG in Germany) necessarily effective and to be disclosed in Canadian law when that party (the applicant, here) seeks permanent residence in |
| Canada under the Immigration Act, despite that party's (the applicant's) presumably fair conviction of an offence in a third country (say, Texas)? |
Judge
Date: 19990929
Docket: IMM-5228-98
BETWEEN:
EBERHARD BERTOLD
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
MULDOON J. :
[1] The applicant seeks judicial review of the decision by the Appeal Division of the Immigration and Refugee Board (the IAD or the Board), dated September 23, 1998, in which the IAD held that the deportation order issued against the applicant on November 5, 1996 is valid and that discretionary relief pursuant to paragraph 70(1)(b) of the Immigration Act, R.S.C. 1985, c. I-2 (the Act) is not warranted. Leave to commence this application for judicial review was granted by Pinard J. on May 13, 1999.
[2] The applicant seeks an order setting aside the IAD"s decision and asks that the section 70 relief be granted; alternatively, the applicant requests the matter to be sent back for redetermination by a different panel of the IAD.
Note
[3] It ought to be noted that the applicant"s memorandum of fact and law and his further memorandum of fact and law are both rather lengthy, comprising 52 and 56 pages respectively. Rule 70(4) of the Federal Court Rules, 1998 states:
| Unless otherwise ordered by the Court, a memorandum of fact and law, exclusive of appendices, shall not exceed 30 pages in length. |
[4] Mr. Justice Pinard"s order granting leave is silent on the issue of extending the memorandum length beyond that mandated by the Rules and nothing filed by the applicant sought permission to exceed the maximum length.
[5] It is also noted that the applicant has raised the issue of whether his section 7 and 8 Charter rights have been breached by virtue of the release by German customs officials to Canadian customs officials of information relating to outstanding charges he faces in Germany. The information was released purportedly pursuant to Article 6 of a 1984 customs agreement between Canada and Germany. The information was, at the request of the German officials, forwarded on to CIC, (the Immigration Office) Vancouver, also apparently in compliance with the agreement. No notice of a constitutional question, pursuant to section 57 of the Federal Court Act, has been served, and the respondent has not raised this issue. Whether the applicant intends to challenge the validity of the customs agreement, or whether he seeks its interpretation in a manner consistent with the Charter, was unclear, when the case opened in Vancouver, and was left unexplained.
Background
[6] The applicant, Eberhard Bertold, is a 42 year old German citizen, who was landed in Canada on December 27, 1994 as a dependent of his wife. He signed a completed application for permanent residence in Canada in November 1993, and on February 22, 1994, he swore a declaration that the information contained in that application was truthful, complete, and accurate. At the hearing before the IAD, however, it became apparent through the applicant"s testimony that his application was not truthful, complete, or accurate in several areas.
[7] In particular, the applicant omitted the fact of his first marriage, in 1983 to an American citizen (his present wife is his second wife). He stated, in response to question 24 of his application for permanent residence, that from 1983 until 1986 he lived in Germany. This is not entirely accurate as he was living in the United States from January 1982 until his extradition to Germany in October 1984. During that same period, he did travel frequently to Germany, and he testified before the IAD that he never spent more than six months at a time in the United States; however, he had a business established in the United States and was married to an American citizen as well. No evidence was adduced to show that he had either a home or employment in Germany during this period.
[8] The crucial omission, or misrepresentation, which led to the issuance of the deportation order against the applicant, stems from his response to question 27(b), where he stated that he had no previous criminal record. In fact, he had been convicted in Texas of the offence of theft in the third degree in 1984.
[9] The applicant also had juvenile convictions in Germany dating back to August 1977, when he was convicted of joint murder in concurrence with joint aggravated robbery, joint attempted murder in concurrence with joint aggravated robbery, and joint extortion and joint aggravated robbery, arising from a hold-up of a gas station. However, these juvenile convictions were expunged from the German register of convictions, pursuant to German rehabilitation legislation ("BZRG"), and did not play any part in the issuance of the removal order, nor were they relied on by the Minister at the hearing before the IAD. When he applied for permanent residence in Canada, the applicant obtained a certificate of good conduct from the German authorities, which attested to the fact that he had no record, thus indicating that the juvenile convictions had been erased from his record.
[10] The only part played by the juvenile convictions relates to the applicant"s subsequent breach of a reporting condition attached to his probation. Sometime after his release from prison, and while still on probation, the applicant left Germany and moved to the United States, an action which he knew would result in his probation being revoked. The applicant argued that his departure from Germany was so that he could be with a woman he met skiing in Austria, who later became his first wife. His subsequent extradition to Germany in 1984 was as a result of the revocation of his probation.
[11] While in the United States, the applicant began a business, DKW, which imported automobiles. A client complained at some point, and theft charges resulted. The applicant and his wife moved from Texas to California, which move caused him to miss a court appearance. His bail was revoked, he was arrested in California, and he ended up in jail in Texas.
[12] German authorities then initiated the extradition process. The applicant testified before the IAD that he pleaded guilty in Texas to theft in the third degree, contrary to section 31.03 of the Texas Penal Code, and was sentenced to three years" imprisonment on 6 March 1984, the result of a plea bargain. He waived his right to an extradition hearing because, as he described it, his experience in the Texan jail was so horrible. After he was released from prison, he was re-arrested and returned to Germany, where he was incarcerated until later in 1984 or 1985, serving a three year sentence for breach of probation.
[13] Sometime in 1986 or 1987, after his release, the applicant entered a business partnership involving the sale and repair of automobiles. He sold his share of the business in 1988 and started his own business, Wahler Auto Company; he also began living with a woman whom he would eventually marry. In 1989, the applicant entered an agreement to sell a Ferrari automobile to a Mr. Langreuther. The applicant finally sold the car to someone else, and Mr. Langreuther sought redress in the courts and was awarded a judgment in 1992 for 120 000 Deutsche Marks. The applicant did not satisfy this judgment, but in 1995 advised Mr. Langreuther that he would do so.
[14] The applicant and his second wife started to spend more time in Canada, beginning in 1990. They were involved in training and racing sled dogs. They married in September 1990 and purchased some property in British Columbia. The applicant also travelled to the United States and Germany at this time. The couple had a daughter in February 1991, who is a Canadian citizen. They sold their B.C. property in 1991 and returned to Germany. By early 1993 Wahler Auto was no longer in operation, and the applicant started a new company, Eucar, which he operated until March 1995.
[15] In 1995, Mr. Langreuther came back on the scene, seeking payment of his judgment. After some legal skirmishes, the applicant paid 80 000 DM. The applicant and his witnesses testified before the IAD to various nefarious incidents of harassment and scare tactics, which they attribute to Mr. Langreuther. These include being followed by cars, silent phone calls, and a home invasion in March 1995 at a home rented by the applicant and his wife. Apparently, Mr. Langreuther pretended to be a police officer and, along with two thugs, "confiscated" the keys to the house from the applicant"s father-in-law. Mr. Langreuther eventually admitted his identity, but refused to return the house key. The father-in-law fetched the police, and a locksmith, but Mr. Langreuther had vacated the premises by that time, although he messed up the house. The applicant and his witnesses also allege that Mr. Langreuther removed unspecified court documents from the house, which were later provided to Canadian immigration authorities in the summer of 1995. Home invasion charges were laid, but never dealt with as the accused could not be located.
[16] The applicant, who had been landed in Canada in December 1994, testified that he was followed by a security firm hired by Mr. Langreuther in Canada in April 1995. Mr. Langreuther obtained an ex parte judgment in the B.C. courts, but a garnishing order he obtained was later removed. Around this time, Mr. Langreuther apparently threatened the applicant that he would give Canadian immigration authorities certain information and he attempted to extort money. The applicant never went to the authorities for help.
[17] It turns out that Mr. Langreuther did end up providing immigration authorities with information pertaining to the applicant"s past convictions. They then sought assistance from German authorities to confirm the information.
[18] The applicant was arrested in November 1995 by immigration authorities, and an inquiry was held to determine whether he was criminally inadmissible because of his prior convictions, pursuant to subparagraph 27(1)(a.1)(i) of the Immigration Act, and on the ground that he had been granted landing by reason of a misrepresentation of material fact, pursuant to paragraph 27(1)(e). The adjudicator concluded that the evidence did not establish an equivalency between the Texas conviction and a Canadian offence. However, the adjudicator held that the applicant"s failure to disclose the Texas conviction constituted a material misrepresentation and a deportation order was issued in accordance with paragraph 27(1)(e ) of the Act.
IAD's Decision
[19] The applicant appealed the deportation order, pursuant to section 70, and twelve days of hearings were held before the IAD, between February 10, 1998, and June 19, 1998, with the IAD's decision being rendered on September 23, 1998.
[20] The IAD made a preliminary ruling on the admissibility of seven documents, which the respondent sought to adduce over the applicant"s objections. These documents comprised first, a notice of arrest of the applicant under section 103 of the Immigration Act , dated November 5, 1995; second, a security deposit form, dated November 10, 1995, establishing the applicant"s release from detention upon deposit of $100 000; third, a requisition for refund of the security deposit, indicating a reduction in the amount of the deposit from $100 000 to $10 000; fourth, a letter, dated November 5, 1995, from Stuttgart Customs Investigation Office in German, with attachments consisting of an arrest warrant, a fax from a Canadian immigration officer to the Stuttgart Prosecutor"s Office, and an indictment, dated August 21, 1995 issued against the applicant; fifth, the English translation of the fourth document; sixth, a record of interrogation, dated May 14, 1992, of the applicant by a Public Prosecutor in German, with an English translation attached; and seventh, a letter from the Stuttgart Public Prosecutor"s office, dated December 6, 1995.
[21] The IAD ruled the documents admissible; it held that the documents pertaining to outstanding charges in Germany were relevant in a consideration of all the circumstances of the case. The IAD held that they were not evidence of guilt, but rather of other proceedings involving the applicant in another jurisdiction. The IAD stated that the weight assigned to the documents would be reflective of the fact that they are charges, not convictions. Since Canada does not have the Scottish verdict of "not proved", one wonders what weight the IAD did assign to such unproved charges.
[22] The IAD did not accept the applicant"s argument that the manner in which the documents were obtained violated his Charter rights. The board relied on the Supreme Court of Canada decision in Schreiber v. Canada (Attorney General), [1998] 1 S.C.R. 841, which held that the laws of the country in which information is situated govern whether and how the information is obtained. The documents relating to the outstanding warrant and charges against the applicant were sent by German customs officials to surely uninterested Canadian customs officials, pursuant to a 1984 customs agreement between the two countries; they also came with a request that the information be forwarded to Canadian immigration officials. The IAD examined the 1984 agreement and referred to Article 6, section 1, which provides that information and documents received under the agreement may be used only for the purposes of the agreement, but also that such information may be made available to other persons upon the express approval of the authority providing it.
[23] Turning to the substance of the applicant"s appeal, the IAD first considered the legal validity of the deportation order. The applicant contended that under German law pertaining to the registration of convictions, he had the right to declare he had no convictions, including the Texas conviction. The IAD held that there was no evidence before it indicating whether the foreign conviction had been entered into the German registry, and in any event, the applicant"s Texas conviction would have to be expunged in accordance with the laws of Texas, not Germany, for the applicant to have the right not to be considered as having any convictions for the purposes of the Immigration Act . The IAD concluded that the applicant had a duty to disclose his U.S. conviction to the immigration authorities at the time he submitted his application for permanent residence, and his failure to do amounted to a misrepresentation of a material fact.
[24] With regard to the issue of whether, in all the circumstances of the case, the applicant should not be removed from Canada, the IAD noted that the applicant had Canadian legal counsel assist him in applying for permanent residence and that he should have inquired of counsel as to whether he had to disclose his conviction.
[25] The IAD also noted that although the adjudicator found that the applicant"s Texan offence has no Canadian equivalent, the specific facts of the offence were not before her. The IAD concluded that the applicant"s misrepresentation was serious in that it prevented any inquiry concerning a serious criminal conviction, which may have resulted in the applicant being found to be inadmissible to Canada.
[26] The IAD noted that the applicant did not accept any responsibility for his current immigration problems and concluded that he is likely to be less forthright again in the future.
[27] The panel also considered the possible hardship the applicant"s wife and daughter may face if he is removed to Germany. The IAD noted that the applicant"s wife has spent most of her life in Germany and that their daughter has also spent time there, but that the choice to leave Canada and accompany the applicant is left to them. The IAD also noted that Germany is modern, democratic, and prosperous, and its status as a member of the European Community could present numerous opportunities for the applicant.
Applicant"s Position
[28] The applicant contends that the IAD erred in admitting the documents relating to the outstanding tax evasion charges against him in Germany as being relevant in consideration of "all the circumstances of the case." The applicant relies on the Federal Court of Appeal decision in Kumar v. Canada (MEI) (A-1533-83; 29 November 1984) for the proposition that such charges ought not to play any part in the board"s decision. The applicant also relies on the subsequent treatment of this case by the IAD in Melo v. Canada (MCI) (1997) 39 Imm.L.R. (2d) 1), wherein it was held that Kumar is binding and thus, evidence of outstanding charges should not be adduced except only insofar as for determining whether a postponement of proceedings may be necessary. Such is not required here and now.
[29] In the alternative, the applicant argues that the IAD made an erroneous finding of fact when it held in its decision that the applicant had admitted the charges. The applicant contends that he never admitted the charges, but rather testified that he had retained counsel and was actively pursuing settlement without criminal conviction.
[30] The applicant submits that the IAD erred in failing to find that the documents were obtained in violation of his rights under sections 7 and 8 of the Charter. German privacy law prevents third parties from accessing criminal records and investigations files without the consent of the person concerned. The applicant contends that his privacy rights were knowingly breached by Canadian immigration authorities, who improperly used the 1984 Canada-Germany customs agreement to access the documents. The applicant argues that Canada Customs had no interest in his activities, and it was simply an abusively exploited conduit through which the German information was to flow improperly to CIC.
[31] The applicant contends that the CIC was informed on at least two occasions by German authorities that the requested documents could not be released due to privacy laws, and notwithstanding this, CIC used the customs agreement to get at the documents or information which it could not otherwise access. The applicant argues that such "evidence", as it was obtained in deliberate and wilful violation of his Charter rights, must be excluded, pursuant to subsection 24(2) of the Charter.
[32] The applicant also argues that the IAD erred in admitting the 1992 record of interrogation, as he contends that it was stolen from him by Mr. Langreuther during the 1995 home invasion. The applicant testified that he kept personal records in the basement of that house, and his witnesses testified that Mr. Langreuther had a folder of court documents.
[33] The applicant submits that the IAD made several errors in failing to exercise its equitable jurisdiction under paragraph 70(1)(b) of the Immigration Act. First, the applicant asserts that in non-refugee cases, reception of evidence pertaining to the circumstances of the country of intended deportation is irrelevant and outside the tribunal"s jurisdiction. Second, the applicant submits that the IAD erred in assessing the adjudicator"s decision which had concluded that there was no equivalent Canadian offence vis-à-vis the Texas offence. Third, the applicant argues that the IAD erred by failing to find that the applicant"s reliance on German rehabilitation legislation to deny his U.S. conviction was the result of an honest, but mistaken, belief. The applicant argues that the evidence of his witness, Dr. Ufer (his German lawyer), establishes that the BZRG allows for the registration and subsequent expungement of foreign convictions. Fourth, the applicant contends that the IAD drew an improper and unwarranted conclusion about the seriousness of the misrepresentation from the absence of evidence concerning the applicant"s consultation with Canadian counsel at the time he prepared his application for permanent residence. Fifth, the applicant argues that the IAD drew improper and unwarranted conclusions regarding his lack of remorse from witness evidence as to the reason behind the current IAD proceedings.
[34] Finally, the applicant submits that the IAD erred in its application of Canada (MEI) v. Burgon (1991), 13 Imm.L.R. (2d) 102 (F.C.A.) and Barnett v. Canada (MCI) (1996) 33 Imm.L.R. (2d) 1 (F.C.T.D.). The applicant contends that the IAD should have considered the effect of German rehabilitation legislation in regard to his Texan conviction.
Respondent
[35] The respondent submits that the evidence relating to the outstanding charges in Germany was properly before the IAD, and relies on Canada (Secretary of State) v. Dee (1995), 90 F.T.R. 113 (T.D.). In that case, Pinard J. found Kumar to be limited to its facts: the IAD had assured the applicant that the outstanding charges would not be taken into account, but then referred to them in the subsequent decision.
[36] The respondent maintains that the IAD"s characterization of the applicant as having admitted the charges is fair as the applicant admitted to German authorities that he declared a false import value on vehicles he imported in his name for a customer. The respondent contends that this aspect of the evidence played a very minor role in the eventual outcome, and that the IAD was clear in indicating that the weight to be assigned to that evidence would reflect the fact that they are charges, not convictions. The applicant's big "admission" was to having declared "as low a durable value as possible" (Tribunal Record, Vol. 2, p. 399 ). He is not different from many. It is silly to take account of this.
[37] With regard to the applicant"s allegation that the documents were obtained in violation of the Charter , the respondent submits that the IAD correctly noted that the laws of the country in which the information is situated govern whether and how that information may be accessed. The respondent submits that the customs agreement expressly allows any information, communications, or documents received by the respondent for the purposes of the agreement, may be made available to other persons upon the express approval of the authority providing them, which, the respondent asserts, occurred in this case. The Stuttgart Customs Office, which provided the information at issue, included a request that the material be forwarded to CIC, Vancouver.
[38] The respondent maintains that there is no evidence that Canadian immigration officials breached any provisions of the Charter, and that it cannot be an error to use information obtained through official means. With regard to the 1992 record of interrogation of the applicant by a German public prosecutor, the respondent submits that the IAD considered the applicant"s allegation that the document had been stolen by Mr. Langreuther during the March 1995 home invasion, and the IAD properly speculated that it was just as likely that Mr. Langreuther obtained the document legitimately through his civil proceedings against the applicant.
[39] With regard to paragraph 70(1)(b) and the IAD"s consideration of evidence relating to the country of intended deportation, the respondent concedes that the Federal Court of Appeal has clarified that the IAD is not to consider such evidence, but that these decisions were released after the IAD"s decision. In any event, the respondent submits, the IAD"s decision is not based on this evidence. (Why then should it not just be withdrawn or erased?)
[40] The respondent maintains that the IAD did not assess the seriousness of the Texas offence, but rather the seriousness of the misrepresentation, and its assessment of the adjudicator"s decision was to the effect of noting that there was little evidence before the adjudicator concerning the offence.
[41] The respondent contends that the IAD did not err in finding that the applicant"s certificate of good conduct did not excuse him from disclosing the Texas conviction. The evidence of the applicant"s witness, Dr. Ufer, indicated that it was possible that the applicant"s U.S. conviction was not entered into the German registry and that it would be 10 or 15 years before the 1984 conviction would be erased. The respondent maintains that the IAD was acting within its proper scope when it made the finding of fact that the applicant"s claim of good faith reliance on the good conduct certificate was implausible. More important is whether such reliance was lawful, ab initio .
[42] With regard to the IAD"s characterization of the applicant as lacking remorse, the respondent argues that this was open to the panel: the applicant blames Mr. Langreuther for his problems; he was never forthcoming about the Texas conviction until immigration officials had the information from other sources; and, quite simply, the applicant never testified to that effect.
[43] Finally, the respondent submits that the ratio of Burgon is that foreign rehabilitation legislation in the country of conviction should be given effect with respect to considerations of admissibility under the Immigration Act. No evidence dealt with whether Texas considered the offence to be erased.
Issues
| 1. Whether the IAD erred in admitting evidence relating to outstanding charges against the applicant in Germany. |
| 2. Whether the IAD erred in not finding that the same evidence was obtained in violation of the applicant"s rights under sections 7 and 8 of the Charter and should thereby be excluded under subsection 24(2). |
| 3. Whether the IAD erred in considering evidence relating to country conditions in the intended country of deportation. |
| 4. Whether the IAD erred in assessing the adjudicator"s decision relating to the Texas offence. |
| 5. Whether the IAD erred in not finding that the applicant"s reliance on German rehabilitation legislation was in good faith. |
| 6. Whether the IAD erred in characterizing the applicant as lacking remorse. |
| 7. Whether the IAD erred in its application of Burgon and Barnett, in regard to the effect of foreign rehabilitative legislation, and whether the applicant was entitled under German law to deny the fact of all prior convictions, including foreign convictions, for the purpose of applying for immigration to Canada. |
Analysis
| 1. The outstanding charges |
[44] In Kumar, the Federal Court of Appeal held that the existence of outstanding charges ought not to have played any part in the IAD"s decision, on a section 70 appeal, as to whether to grant an extension to a stay being sought by the applicant. The IAD, in that case, had assured the applicant that such charges would not be considered; however, mention of the charges made its way into the IAD"s decision and the Federal Court of Appeal could not state with confidence that the charges played no rôle in the IAD"s decision.
[45] In the IAD decision in Melo, the presiding member stated that Kumar is binding and interpreted it to mean that outstanding charges may never be considered, except for the purpose of determining whether to postpone IAD hearings if the charges appear to be nearing resolution.
[46] In a slightly different context, Reed J. held in Kessler v. Canada (MCI) (1998), 153 F.T.R. 240 (T.D.) that outstanding criminal charges could properly be considered by an immigration officer who refused to grant the applicant permission to apply for landing from within Canada on humanitarian and compassionate grounds. The outstanding charges in this case related to fraud and tax evasion in the United States. This Kessler decision ought probably to be reconsidered in light of Baker v. Canada (MCI) S.C.C. 25823, July 9, 1999.
[47] In Dee, Pinard J. limited the Federal Court of Appeal decision in Kumar to its facts: the IAD had said it would not take the charges into account, but then it went ahead and did so, or at least appeared to have done so. In Dee, the Crown sought judicial review on the ground that the IAD erred by failing to take into account the claimant"s outstanding civil and criminal charges. The Court dismissed the judicial review, noting that the IAD did, in fact, take into account the outstanding charges faced by Mr. Dee in the Philippines.
[48] Doubt has been cast on the validity and soundness of the proposition for which Kumar is often cited. In Seth v. Canada (MEI), [1993] 3 F.C. 348 (F.C.A.), the Court noted that an immigration inquiry is an entirely administrative procedure, with no power to make determinations of liability, guilt, or innocence. The Court commented at p. 366,
| Absent a genuine and unmistakable prejudice to the accused, criminal charges against an individual should not per se prevent the state from pursuing legitimate administrative inquiries unrelated to these charges. |
This passage was cited by Pinard J. in Dee, when he commented that he had serious doubts as to the applicability of Kumar to the case at hand.
[49] In the instant case, the IAD emphasized that evidence of outstanding charges is not evidence of guilt, but simply evidence of other proceedings involving the applicant. The IAD concluded,
| The weight which will be accorded to the evidence of charges outstanding in Germany will be reflective of the fact that these are charges and not convictions. |
| (Reasons for decision, p. 6) |
The IAD"s decision is not founded on the existence of the outstanding charges against the applicant; in the context of "all the circumstances" as mandated in a section 70 appeal, these charges were relevant, but were accorded what appears to be very little weight. Since the charges are, at most, some prosecutor's allegations, one wonders what precisely is the weight they import, if any? Unresolved, they cannot impugn the applicant's character or credibility. Reference to such charges was inadmissible.
2. Charter violation
[50] The IAD noted that, pursuant to the Supreme Court of Canada decision in Schreiber, the laws of the country in which the information is located govern questions of whether and how that information may be obtained.
[51] The evidence before the IAD indicates that in Germany, privacy laws limit access to criminal records and investigations files to the parties to the file and their legal counsel. Treaty agreements, however, may allow for such access. The information pertaining to the outstanding charges was purportedly obtained through a 1984 customs agreement between Canada and Germany. Article 6 of that agreement states, in part,
| Any information, communications and documents received may be used only for the purposes of this agreement. They may be made available to persons other than those charged with using them for the purpose of this Agreement only with the express approval of the authority providing them. |
| (Reasons for decision, p. 8) |
[52] The Stuttgart Customs Office provided the information to Canada Customs, with a cover letter containing the stated request that the information be forwarded to the Canada Immigration Centre in Vancouver. The German customs officials determined that such information could be released to Canadian immigration officials under the framework of the 1984 agreement, and they so released it.
[53] Ultimately, however, it does not appear that these outstanding charges had much of an influence on the eventual IAD decision, since the IAD was conscious of the fact that these were simply charges and not indicative of guilt. There was no good or lawful purpose in mentioning them. They were, accordingly, not admissible. The Charter was thereby violated.
| 3. Equitable jurisdiction and country conditions evidence |
[54] The applicant relies on the recent Federal Court of Appeal decision in Chieu v. Canada (MCI), (1998) 234 N.R. 112 (F.C.A.). Linden J.A., speaking for the Court, held at paragraphs 15 to 17,
| Let there be no confusion about it-this Court affirms its adherence to Hoang [(1990), 13 Imm.L.R. (2d) 35 (F.C.A.)] and to its application in non-refugee cases such as this. The Board cannot, in exercising its equitable jurisdiction pursuant to paragraph 70(1)(b), consider, as a circumstance, country conditions in potential destinations of deportees. Moreover, evidence relating to these countries is irrelevant and, therefore, inadmissible. The Board"s jurisdiction under paragraph 70(1)(b ) is only to determine whether a person should be removed from Canada. The Board has no business considering the merits or demerits of any potential destination. For the IRB(AD) to consider such a matter would extend the jurisdiction of the Board to engage in premature speculation about hypothetical matters concerning the situation in the possible countries to which someone might be deported. |
| In my view, not only is this view based on legal authority, it is more consistent with the overall scheme of the Act to leave consideration of the country conditions of the potential destination until that destination is definitively decided upon by the Minister under section 52 of the Act. To do otherwise would usurp the function of the Minister. |
| The wording of paragraph 70(1)(b), viewed in total context, must be interpreted this way. That section permits the Board to consider whether a removal order or conditional removal order made against a permanent resident should be quashed or stayed on the ground that, having regard to all the circumstances of the case, the person should not be removed from Canada. The Board is instructed to consider the validity and equity of the removal order. The question is: Should this person be removed or not? It is whether he or she should be removed, not to where he or she should go. The Board is not directed to consider questions extraneous to whether the removal order was properly and equitably made, such as the nature of the place where he or she may be sent. |
The Court did note, however, permissible considerations include the presence of family in Canada and the impact on it that deportation would cause.
[55] In its decision, the IAD does consider the impact that the applicant"s deportation would have on his family in Canada, which is permissible according to Chieu . The panel also noted that the applicant had stated he could run his automobile leasing business in Germany. More troubling, however, the panel commented,
| I note Germany is a modern, democratic and prosperous country with membership in the European union which could open a number for [sic] opportunities for the [applicant] and his family, should they decide to join him. |
| (Reasons for decision, p. 29) |
This comment, although brief, is a direct consideration of country conditions in Germany. Its length may be due to the fact that assessing Germany"s current conditions was relatively straightforward for the IAD, although, of course, this is purely speculation. What one cannot say with any confidence, is what role, if any, this played in the IAD"s decision. If it played no role at all, why even mention the healthy state of Germany? Consequently, the IAD, while not having the benefit of the Federal Court of Appeal"s pronouncement in Chieu at the time of its decision, has fallen into error in this regard. Nevertheless, this error adds reason to quash the IAD's decision.
4. Adjudicator"s decision and the Texas offence
[56] At the inquiry before the adjudicator, and in the subsequent decision, the adjudicator held that the Minister had failed to establish the allegations pursuant to subparagraph 27(1)(a.1)(i) of the Act. The adjudicator was unable to conclude that the Texas offence could be equated with any Criminal Code offence. The adjudicator went on to find the applicant had been convicted of an offence such that a misrepresentation was established.
[57] The applicant takes issue with the IAD"s assessment of the adjudicator"s decision for implying that only a paucity of evidence prevented the adjudicator from finding a parallel Canadian offence. However, the IAD, in a footnote, refers to p. 3 of the adjudicator"s reasons where she concluded,
| Therefore I have decided in considering all the evidence before me, it was insufficient to find you described in subparagraph 27(1)(a.1)(i). [Emphasis added.] |
| (Reasons for decision, p. 26, footnote 23) |
[58] The applicant has misunderstood, or mis-interpreted, the purpose for which the IAD referred to the adjudicator"s decision. It was not for the purpose of assessing, or even discussing, the seriousness of the offence; rather, it was for the purpose of assessing the seriousness of the misrepresentation, which the IAD expressly states. This is the point of it.
| 5. Reliance on Germany"s rehabilitation legislation |
[59] The applicant relies on the decision of Rothstein J., as he then was, in Lazaro v. Canada (MCI) (1998), 149 F.T.R. 120 (T.D.) for the proposition that plausible reliance on foreign rehabilitative legislation must be taken into account by an adjudicator. In that case, the deportation order was set aside on the basis that the Minister failed to consider whether the applicant"s Hong Kong offences had Canadian equivalents. The Court directed the new decision maker to consider the applicant"s explanation as to her reliance on the Hong Kong Rehabilitation of Offenders ordinance, and noted that a previous adjudicator had found the explanation plausible.
[60] In the case at bar, the IAD did consider the applicant"s explanation as to his good-faith reliance on Germany"s rehabilitation legislation, BZRG. The IAD found the applicant"s explanation to be implausible based on the fact that he had Canadian counsel assist him in preparing his application for permanent residence and never sought his advice. The panel noted the other omissions which concerned information relating to the applicant"s first marriage to an American citizen, as well as his previous residency in the United States. The IAD concluded that the applicant concealed these aspects of his past in order to prevent immigration authorities from delving into his past and possibly compromising his admissibility to Canada. The panel also noted that the applicant claimed that his German probation officer advised him that if there were no entries on his certificate of good conduct, he need not disclose any previous convictions.
[61] The applicant"s witness on German criminal-law matters and procedures, Dr. Ufer, testified that it is possible that the applicant"s U.S. conviction was never entered into the German registry, but that at any rate, it would be 10 or 15 years under German law before the 1984 conviction would be considered erased.
[62] The IAD"s finding that the applicant"s explanation is implausible and therefore unacceptable was open to it based on the evidence before the panel.
6. Remorse
[63] The Federal Court of Appeal in Chieu noted that the remorsefulness of the applicant, if a crime is involved, may be an appropriate consideration. Granted, in the case at bar, the crime is involved in an indirect sense, insofar as the applicant"s misrepresentation is concerned, the IAD, with remarkable self assurance, found him not to be remorseful in the least. The IAD based this finding on its appraisal of the applicant"s testimony and demeanour, as well as similar assessments of the applicant"s witnesses who testified on his behalf. Because the IAD was in a better position to make such observations, assessments, and determinations it would not be appropriate for this Court to step in and disturb these findings.
7. Effect of German rehabilitation legislation
[64] The applicant contends that the IAD misinterpreted Burgon and Barnett. In the latter decision, Jerome A.C.J. held that the adjudicator erred in law in concluding that the U.K. Rehabilitation of Offenders Act, 1974 was not binding in Canada:
| It is clear from the decision in Burgon that where another country, whose legal system is based on similar foundations and values as our own, has enacted legislation which reflects goals and objectives analogous to those encompassed within our own justice system, then that law should be accorded respect and recognized for the purposes of Canadian immigration law. 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. |
[65] In Burgon, Mahoney J.A. commented,
| Nor, with respect, do I see the exclusion from Canada of a person deemed by foreign law not to have been convicted of an offense as thwarting the goals of that foreign law. In the first place, absent a treaty or international convention, foreign legislatures simply have no right to expect our laws to accommodate the purposes of theirs. In any event, while it is doubtless a purpose of the British legislation to relieve offenders of domestic civil liabilities, it ought not, if it is, be intended to facilitate emigration to Canada. |
[66] In the same case, Linden J.A. quoted the IAD's decision:
| 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. [Emphasis added.] |
[67] Both of these cases, Burgon and Barnett, are concerned with the effect of foreign rehabilitative legislation on convictions in the same country, that is, the country with the rehabilitation provisions. Thus, if the conviction at issue in the case at bar occurred in Germany, or if the rehabilitation legislation was that enacted by Texas, then these cases would be relevant. The IAD did not err in distinguishing them on the facts of the case at bar.
[68] With regard for whether the IAD erred in failing to determine whether Germany"s legislation allowed for the expungement of foreign convictions of its nationals, Dr. Ufer testified that the BZRG allows for the registration of foreign convictions and the same provisions regarding expungement are applicable. However, he was unable to assert unequivocally that the applicant"s Texas conviction had been registered, although he felt sure it would have been as the German authorities became aware of it before initiating the extradition process (applicant"s application record, tab 3, hearing transcripts, pp. 283-291). The panel, which acknowledged Dr. Ufer"s testimony that the BZRG allows for the registration and erasure of foreign convictions, stated,
| Neither Dr. Uffer [sic] nor the appellant were [sic] aware of whether the Texas conviction had ever been entered into the German conviction register. Both assumed the German authorities were aware of the appellant"s U.S. conviction, but neither knew this to be the case, nor were they aware whether the U.S. conviction had been registered and erased. Notwithstanding the appellant"s stated understanding of operation of German law with respect to his right to non-disclosure, the question remains whether the German legislation legally gives the appellant the right not to disclose an existing U.S. conviction. |
| (Reasons for decision, p. 23) |
The panel did have before it evidence, from Dr. Ufer who read in English pertinent portions of Germany"s rehabilitation legislation, that the BZRG allows for the registration and eventual erasure of foreign convictions of German nationals. However, it was not satisfied that the evidence showed that the applicant"s U.S. conviction had been registered in the first place. If it had been, would the BZRG have effectively erased the applicant's Texan conviction in Canadian law? That is a certifiable question.
Conclusion
[69] The mention of social conditions in Germany could ordinarily be discounted as being de minimus, but this IAD decision should, in any event, be referred back to the Board for redetermination by a differently composed panel.
[70] The law is changing. The Supreme Court's decision in Baker v. Canada (M.C.I.) now shows that if the Court would certify a serious question; it does not matter what is that question's text, since the Court's intention to certify such a question now makes the Court's decision open to appeal at large. The Court, as a result of the Baker decision, does not need even to try to accommodate the applicant's counsel's request to disregard the sequence of events prescribed in subsection 83(1) of the Immigration Act: that is, certifies "at the time of rendering judgment" ... that "a serious question of general importance is involved and has stated that question."
[71] In the Supreme Court's judgment in Pushpanathan v. Canada (M.C.I.) [1988] 1 S.C.R. 982 at para. 25, it was held "that section 83(1) does not require that the Court of Appeal address only the stated question and issues related to it", as quoted in Baker, para. 12. It continues:
| The wording of s. 83(1) suggests, and Pushpanathan confirms, that if a question of general importance has been certified, this allows for an appeal from the judgment of the Trial Division which would otherwise not be permitted, but does not confine the Court of Appeal or this Court to answering the stated question or issues directly related to it. All issues raised by the appeal may therefore be considered here. |
[72] The present case merits a stated question in any event. The stated question shall be:
| Is the enacted pardon from crime accorded by the country of a party's citizenship necessarily effective and to be disclosed in Canadian law when that party seeks permanent residence in Canada under the Immigration Act, despite that party's presumably fair conviction of an offence in a third country? |
[73] The IAD's decision evinced several errors. In justice, it ought to be referred back to a different panel for a new decision. The scope of appeal is apparently quite open according to Baker. The applicant, if unable to contain his counsel's verbosity, ought to apply for a permissive disposition regarding the application of Rule 70(4). It may be that the documentation can be drastically reduced, depending on the points of appeal. If not the original wisdom inhering in section 83(1) and in Rule 70(4) will be seen to be most practical. No costs are awarded.
Ottawa, Ontario
September 29, 1999
Judge