Canada ( Minister of Citizenship and Immigration ) v. Canada ( Immigration and Refugee Board, Appeal Division )
IMM-6313-98
Campbell J.
23/11/99
6 pp.
Judicial review of Appeal Division's decision Canadian, U.S. legislation not equivalent-Brar entering United States after presenting to U.S. Customs officials Indian passport in name of Gurjit Singh Sidhu and false Canadian landed immigrant papers-As result Brar pleaded guilty to criminal charge of knowingly attempting to evade immigration laws by appearing under assumed name without disclosing true identity in violation of Title 18, United States Code, § 1546(a)-Application of Immigration Act, s. 27(1)(a.1)(i), requiring immigration officer to forward written report to Deputy Minister setting out details of information indicating permanent resident convicted of offence that, if committed in Canada, constitutes offence punishable under any Act of Parliament by maximum term of imprisonment of 10 years or more-Adjudicator finding equivalence in s. 403 of Criminal Code, providing everyone who fraudulently personates any person with intent to gain advantage, obtain property or cause disadvantage, guilty of indictable offence, liable to imprisonment for term not exceeding 10 years or offence punishable on summary conviction-Issued deportation order-Appeal Division finding while elements of American law included in more general Criminal Code provision, requirement remaining that specific elements be compared, and those provisions which are most similar are to be found to have equivalence-Finding only Immigration Act, s. 94(1)(b) (offence to enter Canada using fraudulent means) equivalent to Title 18, U.S.C. § 1546(a); s. 27(1)(a.1)(1) requirements not met; deportation order invalid-Application allowed-S. 27(1)(a.1)(i) allowing finding of equivalence with "any Act of Parliament", i.e. number of Canadian provisions might well be found to be equivalent in any case, but no legal requirement to find equivalent that is "most similar" and make decision with respect to that provision only-Question with respect to s. 27(1)(a.1)(i) whether any of equivalents punishable by imprisonment for 10 years or more-Error significant, warranting setting aside Appeal Division's order-On redetermination two issues to be specifically determined: (1) whether in assessing equivalence focus properly only on actual misconduct to which applicant pleaded guilty, thus possibly excluding s. 403 as equivalent since narrower than U.S. provision; (2) whether open to Minister to prove Brar's actual conduct, not just conduct to which pleaded guilty, as basis for finding under s. 27(1)(a.1)(i)-Immigration Act, R.S.C., 1985, c. I-2, s 27(1)(a.1)(i) (as enacted by S.C. 1992, c. 49, s. 16)-Crimes and Criminal Procedure, 18 U.S.C.S. § 1546(a) (1993)-Criminal Code, R.S.C., 1985, c. C-46, s. 403 (as am. by S.C. 1994, c. 44, s. 27).