Date: 19980507
Docket: IMM-1265-97
BETWEEN:
KWAN SUK BUN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
CAMPBELL J.
[1] This is an application for judicial review of a decision of Robert McLeman (the "Visa Officer"), dated February 21, 1997. The application for permanent residence of Law Kwok Keung ("Mr. Law") and his accompanying family members, submitted under the category of entrepreneur, was rejected on the basis that Mr. Law's spouse, namely Kwan Suk Bun (the "Applicant"), was a member of an inadmissible class because she was convicted of copyright offences in Hong Kong.
A. Background
[2] With respect to the application filed, the Applicant, Mr. Law and their two children were interviewed in Seattle, Washington, by the Visa Officer on February 4, 1997. On her application for permanent residence, the Applicant indicated that she had never been convicted of a criminal offence, however, during the interview she gave the Visa Officer a certificate from the Royal Hong Kong Police, dated December 4, 1996, stating that she had appeared before the criminal court in Hong Kong on December 7, 1994, and was convicted of the following offences:
| Offence |
Result |
| Possession for purposes of trade goods to which a forged trade mark was applied |
Fined $500 |
| Possession for purposes of trade goods to where a false trade description was applied |
Fined $500 |
| Possession of an instrument for purposes of forging a trade mark |
Fined $1,200 |
| [3] When asked by the Visa Officer why she did not indicate these convictions on her application form, the Applicant stated that she did not know that the above offences constituted a criminal offence because she had only been required to pay a fine. |
[4] The conduct which resulted in the offences is this: the Applicant operated an electronic game store; the store sold video games and related equipment; one of the items in the store was a piece of equipment called a "Game Doctor"; the Game Doctor was capable of both playing and copying electronic games; when copying the electronic games, the Game Doctor was only capable of copying an electronic game"s computer program and could not copy the related trade mark; the games were not sold as being brand-name games and they did not bear brand-name markings; and customers purchasing the games were aware they were purchasing lower-priced copies of the games" computer programs.
[5] There is a discrepancy between the evidence of the Visa Officer and the Applicant as to what transpired during the interview with respect to questions asked of the Applicant regarding her convictions for the purpose of determining their Canadian equivalency.
[6] The Visa Officer states, at paragraph 8 of his Affidavit:
...Therefore in the absence of any other information to show that she did not have the intent to deceive, I determined that the offences were equivalent and that Ms. Kwan was inadmissible on this basis. I outlined this determination with the applicants at this latter stage of the interview and provided them with an opportunity to respond. I informed them that I did not have a copy of the Canadian Criminal Code in my office and therefore could not cite the specific section numbers which I was equating to Ms. Kwan's offences, but that it would be the sections relating to passing off of goods bearing false trademarks and the possession of an instrument for forging a trademark.
[7] He further states at paragraph 9 of his Affidavit:
I informed Ms. Kwan and her family at the interview that based on the information she provided I was equating these offences as outlined in Paragraph 8 above. I offered the applicants an opportunity to respond. This did not prompt any further recollections or information about the circumstances of the Hong Kong offences. She did not offer to send me any further documents or disabuse me of my concerns.
[8] The Applicant, on the other hand, states that the Visa Officer never informed her or her family that he was equating her Hong Kong offences to the similar Canadian counter-parts. She states in her Affidavit at paragraph 4:
During the interview I was asked to describe the circumstances leading up to the offence. I described our general business practise of purchasing from wholesalers. These purchases included games that were clear imitations. I was unaware during the interview that Mr. McLeman was inquiring as to the specifics of the Game Doctor.
[9] The affidavit of Peter Chung, agent for the Applicant and her family and their interpreter during the interview, stated at paragraph 11:
...I was in attendance at the interview. After detailed questioning, he advised us that the Applicant's application was likely to be refused because of her convictions. He did not give us any further opportunity to submit additional materials, nor did he advise us of the legal test of "equivalency" of a Hong Kong conviction to a Canadian conviction.
[10] And at paragraph 14:
I believe the visa officer did not provide the Applicant adequate notice of the fact the offences might me equivalent to offences in the Criminal Code of Canada, nor was she provided an opportunity to respond. He ought to have given the information received in his independent inquiries to the Applicant and given her an opportunity to respond. Instead, the only notification she received was the refusal letter from Robert McLeman.
[11] Peter Chung sent a letter, dated February 17, 1997 to the Visa Officer which addressed various issues raised during the interview. In particular, he compared the Hong Kong offences to the Canadian one as follows:
| It is our understanding that under Canadian Copyright law, it is a summary offence and conviction. It would be a criminal offence if the intent was fraudulent.... |
The situation surrounding Mrs. Law was that she operated another TV game shop. It was through that shop that she sold Supernintendo games and related equipment. She also had a commercially available Game Doctor which played games; as well, it was able to copy games. It was with that Game Doctor that Mrs. Law was charged with the selling of copied games and related equipment offence. As evident by the level of fines: HK$500 related to the copyright infringement, and HK$2000 for the possession and use of the equipment, this was considered to be a minor offence in Hong Kong....
However, there is no evidence that this letter was considered by the Visa Officer prior to the decision being made.
[12] In a letter dated February 21, 1997, the Applicant and her family were informed that the applications for permanent residence were rejected.
B. Decision under review
[13] The relevant portions of the Visa Officer's decision reads as follows:
| I have now completed the assessment of your application, I regret to inform you that your application is refused for the reasons which follow. |
| Your spouse, Kwan Suk Bun, comes within the inadmissible class of persons described in paragraph 19(2)(a.1)(i) of the Immigration Act, 1976, because she was convicted in Hong Kong in 1994 of the following offences: |
| a) Possession of trade goods to which a forged trade mark was applied; |
| b) Possession for purposes of trade goods to where a false trade description was applied; |
| c) Possession of instrument for purpose of forging a trade mark. |
| If committed in Canada, these would constitute offenses that may be punishable under sections 408 and 409 of Canada's Criminal Code and for which a maximum term of imprisonment of two years may be imposed under section 412 of the Criminal Code. |
| Section 19(2)(a.1) of the Immigration Act exempts persons from this inadmissible class if they satisfy the Minister of Immigration that they have rehabilitated themselves and that at least five years have elapsed since the termination of the sentence imposed for the offence. Your spouse is not eligible for such an exemption until December 1999. |
| Section 9(1)(a) of the Immigration Regulations, 1978, permits a visa officer to issue immigrant visas to an applicant and his accompanying dependant only if he and his dependents, whether accompanying or not, are not members of any inadmissible class and otherwise meet the requirements of the Immigration Act and Regulations. Since your spouse comes within the inadmissible class described above, I cannot issue immigrant visas to you or your dependents. |
Because you have been unable to meet all the requirements of the Immigration Act and the regulations, pursuant to paragraph 9(4) of the Immigration Act, your application has been refused...
C. Relevant Statutory References
1. Immigration Act
9(4) Issuance of Visa - Subject to subsection (5), where a visa officer is satisfied that it would not be contrary to this Act or the regulations to grant landing or entry, as the case may be, to a person who has made an application pursuant to subsection (1) and to the person's dependants, the visa officer may issue a visa to that person and to each of that person's accompanying dependants for the purpose of identifying the holder thereof as an immigrant or visitor, as the case may be, who, in the opinion of the visa officer, meets the requirements of this Act and the regulations.
19(2) Inadmissable Classes Where Entry Permitted - 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 |
(i) have been convicted outside of Canada of an offence 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, or...
| 27(2) Reports on Visitors and Other Persons - An immigration officer or a 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);...
| 27(3) Subject to subsection (3.1) and any order or direction of the Minister, the Deputy Minister, on receiving a report pursuant to subsection (1) or (2), shall, if the Deputy Minister considers it appropriate to do so in the circumstances, forward a copy of that report to a senior immigration officer and may |
(a) direct that a determination be made with respect to any or all of the allegations mentioned in the report where the person is a person described in
| (i) paragraph (2)(a) by reason of paragraph 19(2)(d), |
| (ii) paragraph (2)(e) by reason of paragraph 26(1)(c), or |
| (iii) paragraph (2)(h) or (k); or |
(b) in any case, direct that an inquiry be held.
2. Immigration Act Regulations
9(1) Subject to subsection (1.01) and section 11, where an immigrant other than a member of the family class, as assisted relative or a Convention refugee seeking resettlement makes an application for a visa, a visa officer may issue an immigrant visa to him and his accompanying dependants if
(a) he and his dependants, whether accompanying dependants or not, are not members of any admissible class and otherwise meet the requirements of the Act and these Regulations
3. Criminal Code of Canada
408. Passing Off - Every one commits an offence who, with intent to deceive or defraud the public or any person, whether ascertained or not,
(a) passes off other wares or services as and for those ordered or required; or
(b) makes use, in association with wares or services, of any description that is false in a material respect regarding
(i) the kind, quality, quantity or composition,
(ii) the geographical origin, or
(iii) the mode of the manufacture, production or performance
of those wares or services.
409. (1) Instruments for forging trade-mark - Every one commits and offence who makes, has in his possession or disposes of a die, block, machine or other instrument designed or intended to be used in forging a trade-mark.
(2) Savings - No person shall be convicted of an offence under this section where he proves that he acted in good faith in the ordinary course of his business or employment.
412. (1) Punishment - Every one who commits an offence under section 407, 408, 409, 410 or 411 is guilty of
(a) and indictable offence and is liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on summary conviction.
(2) Forfeiture - Anything by means of or in relation to which a person commits an offence under section 407, 408, 409, 410 or 411 is, unless the court otherwise orders, forfeited on the conviction of that person for that offence.
4. Hong Kong - Trade Descriptions Ordinance
7. Offences in respect of trade descriptions
| (1) Subject to the provisions of this Ordinance, any person who |
(a) in the course of any trade or business
| (i) applies a false trade description to any goods; or |
| (ii) supplies or offers to supply any goods to which a false trade description is applied; or |
| (b) has in his possession for sale or for any purpose of trade or manufacture any goods to which a false trade description is applied, |
commits an offence.
(2) A person exposing goods for supply or having goods in his possession for supply shall be deemed to offer to supply them.
(3) Subject to the provisions of this Ordinance any person who disposes of or has in his possession any die, block, machine, or other instrument for the purpose of making, or applying to goods a false trade description commits an offence unless he proves that he acted without intent to defraud.
9. Offences in respect of trade marks
(1) Subject to the provisions of this Ordinance, any person who
(a) forges any trade mark;
| (b) falsely applies to any goods or trade mark or any mark so nearly resembling a trade mark as to be calculated to deceive; |
| (c) makes any die, block, machine or other instrument for the purpose of forging, or of being used for forging a trade mark; |
| (d) dispose of or has in his possession any die, block, machine or other instrument for the purpose of forging a trade mark; or |
| (e) causes to be done anything referred to in paragraph (a), (b), (c) or (d), |
commits an offence unless he proves that he acted without intent to defraud.
(2) Subject to the provisions of this Ordinance, any person who sells or exposes or has in his possession for sale or for any purpose of trade or manufacture, any goods to which any forged trade mark is applied, or to which any trade mark or mark so nearly resembling a trade mark as to be calculated to deceive is falsely applied, commits an offence.
(3) For the purpose of this section, a person shall be deemed
(a) to forge a trade mark who either
| (i) without the assent of the proprietor of the trade mark, makes that trade mark or a mark so nearly resembling that trade mark as to be calculated to deceive; or |
| (ii) falsifies any genuine trade mark, whether by alteration, addition, effacement or otherwise; |
| (b) falsely to apply to goods a trade mark who without the assent of the proprietor of that trade mark applies that trade mark to goods, |
unless he proves that he acted without infringing the right of the proprietor of the trade mark conferred by section 27 of the Trade Marks Ordinance (Cap. 43), and "forged trade mark" shall be construed accordingly.
(4) In any prosecution for an offence under subsection (1)(a) or (b) the burden of proving the assent of the proprietor shall lie on the defendant.
D. Issues
1. Did the Visa Officer err in law in determining that the Applicant's contravention of the sections relating to possession of goods in respect of trade-mark infringements would constitute an offence punishable under sections 408 and 409 of the Criminal Code of Canada?
[14] Mr. Wong, counsel for the Applicant, submitted in oral argument that there is clearly no equivalent section in the Criminal Code to the Hong Kong convictions (a) and (b) in the Visa Officer"s decision. The Crown did not argue against this proposition and, accordingly, I accept the argument. Therefore, only the Visa Officer"s decision respecting conviction "(c) possession of an instrument for the purposes of forging a trade-mark" requires review on the finding of equivalent.
[15] The process for determining equivalence is well established and is found in the decision of Urie J. in Hill v. Canada (Minister of Employment and Immigration) as follows:
This court in the Brannson case did not limit the determination of so-called "equivalency" of the paragraph of the Code, there is in issue, to the essential ingredients of any offence specifically spelled out in the statute being compared therewith. Nor is it necessary on this case. It seems to me that because of the presence of the words "would constitute an offence...in Canada", the equivalency can be determined in three ways: -first, by a comparison of the precise wording in each statute both through documents and, if available, through the evidence of an expert or experts in the foreign law and determining therefrom the essential ingredients of the respective offenses. Two, by examining the evidence adduced before the adjudicator, both oral and documentary, to ascertain whether or not the evidence was sufficient to establish that the essential ingredients of the offence in Canada had been proven in the foreign proceedings, whether precisely described in the initiating documents or in the statutory provisions in the same words or not. Third, by a combination of one and two.
[16] In the case the Visa Officer correctly conducted the type of analysis stipulated in Hill. The only question is whether the Visa Officer made a reviewable error in his comparison of s.409 of the Criminal Code and s.9(d) of the Hong Kong Ordinance.
[17] Mr. Wong argues that there is a fine but important point of distinction between the two pieces of legislation and, therefore, they are not equivalent. The argument is that by the wording of s.409 of the Criminal Code, possession of a specific machine designed or intented to be used for forging a trade-mark, plus criminal intent, is required for completion of the offence, whereas under s.9(d) of the Hong Kong Ordinance the offence is complete by possession of any machine plus intention to forge a trade-mark.
[18] I do not read s.409 as Mr. Wong has argued and, therefore, cannot find a distinction between the sections. I find that both sections prohibit the possession of a machine for the purpose of forging a trade-mark and are, therefore, equivalent.
[19] I also find that the difference in the burden of proof between Canadien and Hong Kong Law in respect of the noted offences has bo bearing on their equivalence. In this respect I agree with Strayer J."s views expressed in Li v. Canada (M.C.I.) (1996), 200 N.R. 307 at 315 where he says:
Nor in my view does a proper interpretation of subparagraph 19(2)(a.1)(i) of the Immigration Act require such a technical dissection of foreign and Canadian offences into "elements" and "defences". The institutional setting must be kept in mind. Such determinations of equivalency must be made by an adjudicator in a quasi-judicial proceeding. It is hardly to be expected that he or she is to make such fine distinctions in Canadian, much less foreign, criminal law. The purpose of the provision is obviously to exclude from Canada persons who have done things abroad, for which they have been convicted there, which Canada regards by its laws as constituting serious misconduct. This purpose would not, for example, be served by a rule that two offences are not equivalent because the requirement of a particular intent in the foreign law is treated as an element of the offence, whereas in Canadian law its lack is treated as a defence.
[20] I find therefore that the Visa Officer made no reviewable error in law in reaching his decision on equivalence.
2. Did the Visa Officer err in failing to provide adequate notice of the equivalence problem or an opportunity to respond?
[21] I am satisfied on the affidavit evidence that an opportunity for explanation of the convictions was requested by the Visa Officer and that an explanation was given by the Applicant. Given the apparent equivalence between the Criminal Code and Hong Kong Ordinance provisions, I find that nothing more was required to provide the Applicant due process. I therefore find that no error in due process was committed by the Visa Officer.
[22] Accordingly, the application is dismissed.
Judge
OTTAWA, ONTARIO