Judgments

[1997] 1 F.C. 235

A-329-95

Ronald Fook Shiu Li and Lo Hiu Weh Iren Li (Appellants)

v.

The Minister of Citizenship and Immigration (Respondent)

Indexed as: Li v. Canada (Minister of Citizenship and Immigration) (C.A.)

Court of Appeal, Strayer and Robertson JJ.A. and Chevalier D.J.—Toronto, June 4; Ottawa, August 7, 1996.

Citizenship and Immigration — Exclusion and removal — Inadmissible persons — Mr. Li convicted in Hong Kong under Prevention of Bribery Ordinance — Adjudicator concluding Hong Kong offence, Criminal Code, s. 426 equivalent, appellant inadmissible under Immigration Act, s. 19(2)(a.1)(i) — Motions Judge upholding Adjudicator, holding not necessary to compare defences, burdens of proof — Appeal allowed — Comparison of “essential elements” requiring comparison of definitions of offences, including defences — Dissection of offences into “elements”, “defences” not serving purpose of provision (exclusion of persons guilty of serious misconduct) — Definition of offences similar if involving similar criteria for establishing offence occurred, whether manifested in “elements”, “defences” — Examining comparability of offences, not of possible convictions — As Canadian offence narrower, could be convicted of Hong Kong offence but not of Canadian offence — No evidence what Li did also constituting offence in Canada — Not necessary to compare adjectival law by which conviction might be entered — Act not contemplating retrial applying Canadian rules of justice.

Constitutional law — Charter of Rights — Criminal process — Appeal from refusal to quash Immigration and Refugee Board decision appellants inadmissible to Canada pursuant to Immigration Act, s. 19(2)(a.1)(i) — Mr. Li convicted in Hong Kong under Prevention of Bribery Ordinance — Adjudicator, Motions Judge concluding offences equivalent to Criminal Code, s. 426 — Holding not necessary to compare defences, burdens of proof — Not necessary to categorize requirements for offences into “elements”, “defences” — Characterization of factor as element or defence not affecting presumption of innocence guaranteed in Charter, s. 11(d) — Absent s. 1 justification, accused may not be required to prove some fact on balance of probabilities to avoid conviction.

This was an appeal from a refusal to quash an Immigration and Refugee Board decision that the appellants were inadmissible to Canada pursuant to Immigration Act, subparagraph 19(2)(a.1)(i), which prohibits admission to Canada of anyone who there are reasonable grounds to believe has been convicted of an offence that, if committed in Canada, would constitute an offence that may be punishable by way of indictment by a maximum term of less than ten years. Mr. Li had been convicted of offences under the Hong Kong Prevention of Bribery Ordinance and sentenced to four years’ imprisonment. Subsection 9(1) thereof makes it an offence for “any agent, who without lawful authority … accepts any advantage as an inducement to … doing any act in relation to his principal’s affairs or business”. Section 24 imposes the burden of proving a defence of lawful authority on the accused. The appellants sought entry to Canada in 1994. The Adjudicator concluded that Mr. Li’s conviction was for an offence that if committed in Canada would constitute an offence under Criminal Code, subsection 426(1), which makes it an offence for an agent to corruptly accept any advantage for doing any act relating to the affairs of the principal. The Adjudicator compared the essential elements of the offences and found that “corruptly” was akin to “without lawful authority or reasonable excuse”. He rejected the argument that the offences were dissimilar because in Canada the burden of establishing absence of lawful authority or reasonable excuse would be on the Crown. He also rejected the argument that the reversal of burden of proof in Hong Kong would not be acceptable in Canada because it would be contrary to the Charter since the Charter cannot be imposed upon a foreign jurisdiction. The Motions Judge held that it was not necessary to compare defences. He rejected the argument that the Canadian requirements imposing the burden of proof on the Crown, particularly those mandated by Charter, paragraph 11(d), which guarantees the presumption of innocence, would constitute elements of the offence dissimilar to “elements” of the Hong Kong offence. He held that the Charter could not apply to the procedure employed in Hong Kong. The issues were: (1) whether the test of equivalence of an offence under foreign and Canadian law requires a comparison of both the elements of, and defences to, each offence, under the respective laws of each country; and (2) whether there must be an equivalence of burdens of proof, in respect of the trial of the offences being compared, in order for those offences to be equivalent.

Held, the appeal should be allowed.

(1) A comparison of the “essential elements” of the respective offences requires a comparison of the definitions of those offences, including defences particular to those offences. Characterization of a factor as an element or defence cannot affect the presumption of innocence: absent a justification within section 1 of the Charter, an accused may not be “required to prove some fact on the balance of probabilities to avoid conviction”. Nor does a proper interpretation of subparagraph 19(2)(a.1)(i) require such a technical dissection of foreign and Canadian offences into “elements” and “defences”. Furthermore, determinations of equivalency are being made in a quasi-judicial proceeding by an adjudicator, who cannot be expected to make such fine distinctions in Canadian or foreign criminal law. The purpose of the provision is to exclude from Canada persons who have been convicted abroad for activities which Canada regards by its laws as constituting serious misconduct. This purpose would not 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. Equivalency of offences requires essentially the similarity of definitions of offences. A definition is similar if it involves similar criteria for establishing that an offence has occurred, whether manifested in “elements” (in the narrow sense) or “defences” in the two sets of laws. It is not necessary to compare all the general principles of criminal responsibility in the two systems: what is being examined is the comparability of offences, not the comparability of possible convictions in the two countries.

The Canadian offence is narrower than the Hong Kong offence because “corruptly” has been held to mean “without disclosure”. Once disclosure is made, the taking of a reward by an agent cannot be found to have been done “corruptly”. Under the Hong Kong Ordinance, mere disclosure would not render innocent the taking of a bribe or advantage. Thus persons could be convicted of the Hong Kong offence where they would not be guilty of the Canadian offence. There was no evidence from the trials in Hong Kong which demonstrated that what Mr. Li did would also have constituted an offence within the narrower Canadian offence. Although this raised the question of who has the burden of proof in the application of subparagraph 19(2)(a.1)(i), as the issue was not argued, the Court did not address it.

(2) In determining the equivalence of offences for the purposes of subparagraph 19(2)(a.1)(i) an adjudicator should not compare the procedural or evidentiary rules of the two jurisdictions, even if the Canadian rules are mandated by the Charter. Neither the literal meaning of subparagraph 19(2)(a.1)(i) nor the scheme of the Act require such comparisons. The Act does not contemplate a retrial of the case applying Canadian rules of evidence. Nor does it contemplate an examination of the validity of the conviction abroad. It is appropriate for Canadian tribunals to recognize and accept the validity of foreign legal systems without measuring them against the Charter.

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. 1, 10(b), 11(d),(h), 32.

Criminal Code, R.S.C. 1970, c. C-34, ss. 283(1),386(2), 389.

Criminal Code, R.S.C., 1985, c. C-46, ss. 426(1), 429(2).

Immigration Act, R.S.C., 1985, c. I-2, ss. 8(1), 19(2)(a.1) (as am by S.C. 1992, c. 49, s. 11), (3), 20 (as am. idem, s. 12), 83(1) (as am. idem, s. 73).

Prevention of Bribery Ordinance, Laws of Hong Kong, Revised edition 1987, c. 201, ss. 9(1),(4),(5), 24.

CASES JUDICIALLY CONSIDERED

APPLIED:

Brannson v. Minister of Employment and Immigration, [1981] 2 F.C. 141 (1980), 34 N.R. 411 (C.A.); Hill v. Minister of Employment and Immigration (1987), 73 N.R. 315 (F.C.A.); Steward v. Canada (Minister of Employment and Immigration), [1988] 3 F.C. 487 (1988), 84 N.R. 236 (C.A.); R. v. Whyte, [1988] 2 S.C.R. 3; [1988] 5 W.W.R. 26; (1988), 29 B.C.L.R. (2d) 273; 42 C.C.C. (3d) 97; 64 C.R. (3d) 123; 6 M.V.R. (2d) 138; 86 N.R. 328; R. v. Kelly, [1992] 2 S.C.R. 170; (1992), 92 D.L.R. (4th) 643; [1992] 4 W.W.R. 640; 9 B.C.A.C. 161; 68 B.C.L.R. (2d) 1; 73 C.C.C. (3d) 385; 14 C.R. (4th) 181; 137 N.R. 161; 19 W.A.C. 161; 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; R. v. Terry, [1996] 2 S.C.R. 207.

REFERRED TO:

Moore v. Canada (Minister of Employment and Immigration), [1989] F.C.J. No. 34 (C.A.) (QL); Lilly v. The Queen, [1983] 1 S.C.R. 794; (1983), 147 D.L.R. (3d) 758; 34 C.R. (3d) 297.

AUTHORS CITED

Mewett & Manning on Criminal Law, 3rd ed. by Mewett, A. W. and M. Manning. Markham, Ont.: Butterworths, 1994.

Mewett, A. W. and M. Manning. Criminal Law, 2nd ed. Toronto: Butterworths, 1985.

Stuart, Don R. Canadian Criminal Law: A Treatise, 3rd ed. Toronto: Carswell, 1995.

APPEAL from Motions Judge’s refusal to quash an Immigration and Refugee Board decision that the appellants were inadmissible to Canada pursuant to Immigration Act, subparagraph 19(2)(a.1)(i) (Li v. Canada (Minister of Citizenship and Immigration) (1995), 95 F.T.R. 298 (F.C.T.D.)) because Mr. Li had been convicted in Hong Kong of offences which were found to be equivalent to Criminal Code, section 426. Appeal allowed.

COUNSEL:

Lorne Waldman for appellants.

Chico Korbee for respondent.

SOLICITORS:

Lorne Waldman, Toronto, for appellants.

Deputy Attorney General of Canada for respondent.

The following are the reasons for judgment rendered in English by

Strayer J.A.:

Introduction

This is an appeal from an order of the Trial Division dated May 11, 1995 [(1995), 95 F.T.R. 298] in which the Motions Judge refused to quash a decision of the Adjudication Division of the Immigration and Refugee Board of September 14, 1994. That decision determined that the appellants were inadmissible to Canada pursuant to subparagraph 19(2)(a.1)(i) of the Immigration Act [R.S.C., 1985, c. I-2 (as am. by S.C. 1992, c. 49, s. 11)] and they were ordered deported. In dismissing the application to quash, the Motions Judge certified four questions for consideration by this Court, thus making possible an appeal under subsection 83(1) [as am. idem, s. 73] of the Immigration Act.[1]

Facts

The appellant Ronald Fook Shiu Li is a former chairman of the Hong Kong Stock Exchange. He was convicted there in October, 1990 of two offences under section 9 of the Hong Kong Prevention of Bribery Ordinance[2] and was sentenced to four years imprisonment.

The appellants, Mr. Li and his wife, sought entry into Canada in April, 1994. A report under section 20 [as am. by S.C. 1992, c. 49, s. 12] of the Immigration Act was issued in respect of Mr. Li and an inquiry was convened before an adjudicator commencing in August, 1994. It was agreed by the parties that his wife, the other appellant, would be included in any order made in respect of him. The allegation against Mr. Li was that he fell within the category of inadmissible persons set out in subparagraph 19(2)(a.1)(i) which provides as follows:

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

(i) have been convicted outside 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

The relevant provisions of the Prevention of Bribery Ordinance under which the appellant Mr. Li was convicted are as follows:

9(1) Any agent who, without lawful authority or reasonable excuse, solicits or accepts any advantage as an inducement to or reward for or otherwise on account of his “

(a) doing or forbearing to do, or having done or forborne to do, any act in relation to his principal’s affairs or business; …

shall be guilty of an offence.

…

(4) If an agent solicits or accepts an advantage with the permission of his principal, being permission which complies with subsection (5), neither he nor the person who offered the advantage shall be guilty of an offence under subsection (1) or (2).

(5) For the purposes of subsection (4) permission shall—

(a) be given before the advantage is offered, solicited or accepted; or

(b) in any case where an advantage has been offered or accepted without prior permission, be applied for and given as soon as reasonably possible after such offer or acceptance,

and for such permission to be effective for the purposes of subsection (4), the principal shall, before giving such permission, have regard to the circumstances in which it is sought.

…

24. In any proceedings against a person for an offence under this Ordinance, the burden of proving a defence of lawful authority or reasonable excuse shall lie upon the accused.

The Adjudicator concluded that Mr. Li’s conviction under that Ordinance was for an offence that if committed in Canada would constitute an offence under subsection 426(1) of the Criminal Code of Canada,[3] which provides as follows:

426. (1) Every one commits an offence who

(a) corruptly

(i) gives, offers or agrees to give or offer to an agent, or

(ii) being an agent, demands, accepts or offers or agrees to accept from any person,

any reward, advantage or benefit of any kind as consideration for doing or forbearing to do, or for having done or forborne to do, any act relating to the affairs or business of his principal or for showing or forbearing to show favour or disfavour to any person with relation to the affairs or business of his principal;

The Adjudicator proceeded on the basis that, in order to apply subparagraph 19(2)(a.1)(i) to Mr. Li, it was necessary for him to find that the essential elements for a conviction under the Criminal Code were also required by Hong Kong law for the convictions entered there against Mr. Li. He stated as follows:

This process involves a determination of the various essential elements of both the Hong Kong and Canadian offences and a comparison of those elements. The offence in Hong Kong appears to have the following essential elements.

(1) The offender is an agent for a principal.

(2) He or she accepts or solicits any advantage as an inducement or reward.

(3) The acceptance or solicitation is carried out without lawful authority or reasonable excuse.

(4) The inducement or reward is to have the offender do something, or not do something in relation to the principal’s affairs.

The Canadian offence suggested by the case presenting officer has the following essential elements.

(1) The offender is an agent for a principal.

(2) He or she demands, accepts or offers or agrees to accept a reward, advantage or benefit.

(3) The demand or acceptance is carried out corruptly and

(4) The reward, advantage or benefit is to have the offender do something or not do something in relation to the principal’s affairs.[4]

The Adjudicator noted that counsel for Mr. Li argued that the third elements in the two analyses were sufficiently different so that the offence for which he was convicted in Hong Kong would not constitute an offence in Canada. The Adjudicator concluded, however, that the requirement in the Criminal Code that the act be done “corruptly” was akin to the requirement in the Prevention of Bribery Ordinance that the act be carried out “without lawful authority or reasonable excuse”. He felt that both offences would require proof of a similar mens rea. While it is accepted in Canada that the essence of acting “corruptly” in respect of this offence is to take the benefit without disclosing it to the principal, the Adjudicator thought that this might be equivalent to the requirement that there be a lack of “reasonable excuse”. He rejected the argument that, because under section 24 of the Prevention of Bribery Ordinance the burden is on the accused to prove lawful authority or reasonable excuse, this would make the offences dissimilar because in Canada the burden would be on the Crown. He dismissed this difference as “procedural in nature”. He also rejected the argument that the reversal of burden of proof in Hong Kong would not be acceptable in Canada because it would be contrary to 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]]. He took the view that the Charter cannot “be imposed upon a foreign jurisdiction”. Thus, the Adjudicator concluded that Mr. Li fell within subparagraph 19(2)(a.1)(i) of the Immigration Act and was subject to deportation. The Adjudicator also rejected a request that he exercise his discretion pursuant to subsection 19(3) of the Immigration Act and grant entry to the appellants for a few days.

The appellants sought judicial review of these decisions but the learned Motions Judge refused to quash them. The appellants appeal to this Court the refusal of the Motions Judge to quash the deportation order. No mention is made in the notice of appeal of the Adjudicator’s refusal to exercise his discretion under subsection 19(3), and that matter was not argued before us.

The learned Motions Judge in refusing to quash the deportation order generally agreed with the conclusions of the Adjudicator. He held that in the consideration of the essential elements of the two offences it is not necessary to compare defences. He also rejected the argument that Canadian requirements of the Crown having the burden of proof, particularly those mandated by paragraph 11(d) of the Charter,[5] would constitute elements of the offence dissimilar to “elements” of the Hong Kong offence. He held that the Charter could have no application to the procedure employed in Hong Kong.

Although the learned Motions Judge dismissed the application for judicial review, at the request of counsel for the respondent he certified the following four questions [at page 307]:

1. The criminal equivalency test under s. 19(2)(a.1)(i) of the Immigration Act, as developed by the Federal Court of Appeal in Moore, Steward, Hill, and Brannson, requires a comparison of the “essential elements” of the respective offenses. Does a comparison of the “essential elements” require a comparison of the statutory defences available in the respective offenses as well?

2. Does a comparison of the “essential elements” of the respective offenses require a comparison of all defences available under the respective laws?

3. Does a comparison of the “essential elements” of the respective offenses require a comparison of the burdens of proof available under the respective laws?

4. Does a comparison of the “essential elements” of the respective offenses require a comparison of the Charter defences, including the defence of the unconstitutionality of the reverse onus of proof, that are available under the respective laws?

Counsel for the appellants urges that each of these questions be answered in the affirmative. In effect he argues that there must be an equivalence, collectively at least, of both “elements” (as narrowly defined) and of defences. He also argues that there must be an equivalence in matters such as burden of proof, with particular regard in this case to the different result that the Charter would dictate in a trial in Canada as compared to a trial in Hong Kong under the Ordinance as it then stood. On the other hand, the respondent argues that defences should not be taken into account in determining whether the offences are equivalent. Further it is said that it is not necessary, in establishing equivalence, to demonstrate that the rules of evidence including the burden of proof would be the same in the two jurisdictions, even though the procedures followed in the country of conviction would not, because of the Charter, be acceptable in a Canadian court.

Issues

As the parties have not really argued that there is a distinction between statutory defences and other defences for the purposes of determining the criteria of equivalence of offences, it appears to me that questions 1 and 2 can be dealt with together. Similarly it appears to me that questions 3 and 4 both ask in effect whether a reversal of the burden of proof in a foreign country prevents a conviction there from being equivalent to a conviction for an offence under Canadian federal law. Thus they essentially raise one issue: the applicability of Canadian evidentiary standards (whether based on the Charter or not) as a measure of equivalence of a conviction in a foreign country employing different standards. Therefore questions 3 and 4 can also be answered together.

I would therefore identify the issues to be determined as follows:

(1) Does the test of equivalence of an offence under foreign and Canadian law for these purposes require a comparison of both the elements of, and defences to, each offence, under the respective laws of each country?

(2) Must there be an equivalence of burdens of proof, in respect of the trial of the offences being compared, in order for those offences to be equivalent?

I would also add that question 4, to the extent that it raises an issue of “Charter defences” in general, cannot be answered because this case does not give rise to any such general issue. It gives rise only to a question of comparing the burdens of proof under the two systems of law, a matter which in Canada is ultimately governed by the Charter.

Analysis

Are Defences a Measure of Equivalence?

In considering this question it will be useful to refer again to the actual language of subparagraph 19(2)(a.1)(i) which requires that, for a person to be rendered inadmissible under this subparagraph he or she must:

19. (2) ….

(i) have been convicted outside Canada of an offence that, if committed in Canada, would constitute an offence [punishable by indictment under Canadian federal law]. [Emphasis added.]

It is common to speak of this provision as requiring the “equivalence” of the foreign and Canadian offences and the Motions Judge correctly adopted this language in the certified questions. The reference in those questions to “essential elements” as the test of equivalency comes from earlier decisions of this Court. The jurisprudence of this Court has not yet, as far as I can ascertain, dealt expressly with the particular issue being addressed here: namely whether the “essential elements” to be compared include defences. One can, however, derive certain guiding principles from those decisions. In Brannson v. Minister of Employment and Immigration[6] this Court was dealing with a similar provision of the Immigration Act. Ryan J.A. writing for the majority made the following comments concerning the comparison of the offence for which a person has been convicted under foreign law and an offence under an Act of Parliament.

Whatever the names given the offences or the words used in defining them, one must determine the essential elements of each and be satisfied that these essential elements correspond. One must, of course, expect differences in the wording of statutory offences in different countries. [Emphasis added.]

The Court found in that case that the offence under which the person had been convicted in the United States was broader than the allegedly similar provision of the Criminal Code of Canada. Ryan J.A. said that in such a case it would be open to lead evidence before the adjudicator of the particulars as charged of the actual offence committed, to enable the adjudicator to determine whether the offence actually committed would fit within the Canadian offence definition. He seemed to indicate that evidence as to what the person in question had actually done would also be admissible in determining whether his or her acts would have constituted an offence in Canada. Urie J.A. in concurring expressed the matter somewhat differently. He said [at page 144] that there should be a comparison of the “essential ingredients” (he did not use the term “essential elements” as did Ryan J.A.) and he said there should also be evidence as to the circumstances of the offence, which evidence could be either documentary (e.g. the particulars as charged in the U.S.) or viva voce as to how the offence had actually been committed. By this means it would be possible to determine whether, although the offence might be more broadly defined in the United States, the acts for which the person was convicted would also have made him or her guilty of an offence in Canada.

The Court of Appeal jurisprudence has not developed significantly beyond this analysis in subsequent cases. In Hill v. Minister of Employment and Immigration[7] Hugessen J.A. found that an equivalence had not been properly established as between the theft provisions of a Texas statute and the then subsection 283(1) of the Criminal Code [R.S.C. 1970, c. C-34]. While the Canadian statute provided that “[e]very one commits theft who fraudulently and without colour of right takes”, it had not been demonstrated that there was any similar requirement in the Texas statute that the taking be without colour of right. In that case the adjudicator had evidence which could have supported the assertion of a colour of right. In addition to speaking of “elements”, Hugessen J.A. used the language of “ingredients”, describing the absence of colour of right as “an essential ingredient of the offence of theft in Canada”.[8] Urie J.A. in a concurring judgment also used the language of “essential ingredients” as he did in the Brannson case. He also elaborated on how to determine equivalency, as follows [at page 320]:

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 offences. Two, by examining the evidence adduced before the adjudicator, both oral and documentary, to ascertain whether or not that evidence was sufficient to establish that the essential ingredients of the offence in Canada has been proven in the foreign proceedings, whether precisely described in the initiating documents or in the same words or not. Third, by a combination of one and two.

This approach has been approved by the Court in subsequent cases.[9]+ It appears from the jurisprudence that the second way of determining equivalency, as suggested by Urie J.A., is particularly useful where there is insufficient evidence of the legal scope of the foreign offence or where it appears that the comparable Canadian offence is narrower than the foreign offence. In such a case it is permissible for the adjudicator to consider evidence as to the acts actually committed by the offender and for which he was convicted abroad.[10] This approved second way also points up the fundamental test of equivalence: would the acts committed abroad and punished there have been punishable here?

The learned Motions Judge in the present case concluded that this Court has in determining equivalency only had regard to comparing the “elements” of offences in contrast to “defences”. He therefore came to the conclusion that defences under Canadian law need not be compared with either defences or elements of foreign offences. I assume that what he and counsel for the Minister had in mind was a distinction made between “elements” and “defences” once considered relevant for the purpose of assigning the burden of proof.[11]

In opposition to the position, based on this distinction, that only “elements” are relevant to equivalence, the appellants argued that this Court had refused in the Steward case[12] to find an equivalency between an Oklahoma statute and the offence of arson under then section 389 of the Criminal Code because of a difference in available defences. In that case the Court had regard, inter alia, to then subsection 386(2) of the Criminal Code which provided:

386. …

(2) No person shall be convicted of an offence under sections 387 to 402 where he proves that he acted with legal justification or excuse and with colour of right.

The Court said that the “essential elements” of the Oklahoma and Canadian offences were not the same because there was no reference to colour of right in the Oklahoma statute. Heald J.A writing for the Court stated:

A comparison of the precise wording in each statute does not reveal common essential ingredients.[13]

Thus it was argued by the present appellants that defences are part of the “elements” or “ingredients” to be taken into account. The learned Motions Judge, however, interpreted Steward as treating colour of right as an element of the offence and not as a defence. He therefore concluded that this Court had confined itself to comparing “elements” and not defences in its determination of equivalency.

With respect, I do not believe that it is possible to draw such a conclusion as to the jurisprudence of this Court either from the Steward case or the others cited. First it may be observed that in none of these cases did the Court specifically explain that it was using the term “element” in a technical sense, in contrast to a “defence”. Indeed the Court, as will be noted, has not been consistent in using the term “element” but has frequently referred to the “ingredients” of the offence. Further it has in both the Hill case and the Steward case treated the absence of colour of right as a requirement for establishing guilt. Colour of right has been normally referred to as a defence in criminal law.[14] In Hill there might have been some argument for treating colour of right as an element of the offence of theft whose definition states that one is guilty of that crime if he “fraudulently and without colour of right takes”. But in the Steward case relied upon by counsel for the Minister and the Motions Judge the colour of right requirement was stated, not in the offence defining arson but in a separate section, subsection 386(2) as quoted above, which precluded a conviction where the accused “proves that he acted with … colour of right” (emphasis added). This was clearly framed as a defence with the onus being on the accused. It meets the classical test of a defence: that is, a matter which must be raised by the defendant but only if the prosecution has shown that, were it not for this defence, the accused would be guilty.[15] I thus respectfully disagree with the Motions Judge that this Court in Steward intended to treat the absence of colour of right as an “element” instead of treating its presence as a “defence”. Nothing in the decision requires that interpretation and such a conclusion would appear to be contrary to principle. I therefore conclude that the jurisprudence of this Court does not necessitate the categorization of requirements for offences into “elements” and “defences” with no account being taken of the latter for the purpose of establishing equivalency. Indeed it appears to me that the distinction between “elements” and “defences” has become of less significance in Canadian criminal law since the presumption of innocence has been constitutionally guaranteed in paragraph 11(d ) of the Charter.[16] The Supreme Court of Canada has held in R. v. Whyte[17] that the characterization of a factor as an element or defence cannot affect the presumption of innocence: absent a justification within section 1 of the Charter an accused may not be “required to prove some fact on the balance of probabilities to avoid conviction”.[18]

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.

I believe that it would be most consistent with the purposes of the statute, and not inconsistent with the jurisprudence of this Court, to conclude that what equivalency of offences requires is essentially the similarity of definitions of offences. A definition is similar if it involves similar criteria for establishing that an offence has occurred, whether those criteria are manifested in “elements” (in the narrow sense) or “defences” in the two sets of laws. In my view the definition of an offence involves the elements and defences particular to that offence, or perhaps to that class of offences.[19] For the purpose of subparagraph 19(2)(a.1)(i) of the Immigration Act it is not necessary to compare all the general principles of criminal responsibility in the two systems: what is being examined is the comparability of offences, not the comparability of possible convictions in the two countries.

Therefore questions 1 and 2 cannot be answered simply by an affirmative or negative answer. The answer to each must instead be:

A comparison of the “essential elements” of the respective offences requires a comparison of the definitions of those offences including defences particular to those offences or those classes of offences.

As the Judge took the position that defences need not be taken into account, we must then consider whether the above answer to these questions should result in allowing the appeal. I have concluded it should. The Adjudicator considered that the requirement in paragraph 426(1)(a) of the Criminal Code that a bribe or advantage be taken “corruptly” was equivalent to the requirement in paragraph 9(1)(a) of the Prevention of Bribery Ordinance that the acceptance of a reward be made “without lawful authority or reasonable excuse”. However, I do not believe this is in accordance with established jurisprudence as to the meaning of “corruptly” in paragraph 426(1)(a) of the Criminal Code. In R. v. Kelly[20] the majority of the Supreme Court held that in this context “corruptly” means “without disclosure” to the principal. Such disclosure to be a defence must have been effected in an adequate and timely manner, but once made the taking of the reward by an agent cannot be found to have been done “corruptly”. This appears to make the Canadian offence much narrower than the Hong Kong offence. It appears from the wording of the Prevention of Bribery Ordinance that mere disclosure would not render innocent the taking of a bribe or advantage. Paragraph 9(1)(a) of that Ordinance creates an offence where the advantage or reward is taken “without lawful authority or reasonable excuse”. It is easy to conceive that an agent in Hong Kong might disclose to his principal that he had received a benefit, but if the principal did not give “lawful authority” for the agent to do so the offence would still have been committed. The wording of subsection 9(5) of the Ordinance quoted above highlights the importance of timely permission from the principal and requires that it be an informed permission. Therefore it is obvious that persons could be convicted of the Hong Kong offence in circumstances where they would not be guilty of an offence in Canada, given the defence available here arising out of the somewhat narrow meaning of “corruptly” as ascribed by the Supreme Court.

It might have been possible to demonstrate through particulars of the Hong Kong charges, or from the evidence from the trials there, that in fact what Mr. Li did would also have constituted an offence within the somewhat narrower Canadian Criminal Code provisions. But there is nothing to indicate that there was such evidence before the Adjudicator. This gives rise to another question which was not argued before us and thus is not for determination now: namely, who has the burden of proof in the application of subparagraph 19(2)(a.1)(i)? First it must be noted that subsection 8(1) of the Immigration Act provides as follows:

8. (1) Where a person seeks to come into Canada, the burden of proving that that person has a right to come into Canada or that his admission would not be contrary to this Act or the regulations rests on that person.

Paragraph 19(2)(a.1) applies to

19. (2) ….

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

(i) have been convicted outside Canada of …

(ii) have committed outside Canada …

[an offence or act punishable by indictment under Canadian federal law]. [Emphasis added.]

What need the Minister do in these circumstances to produce reasonable grounds for such belief? Would, for example, a certificate of foreign conviction suggesting a similarity to a Canadian indictable offence suffice? Does subsection 8(1) require the would-be entrant to show the conviction was dissimilar either by reference to the facts or the law? I make no finding on these matters as they appear not to have been specifically addressed either in this or previous cases, although there seems to have been a certain assumption that the burden is on the Minister to prove equivalence.[21]

On the basis of the existing record, however, the appeal must be allowed.

Is Burden of Proof a Matter of Equivalence?

This is the essential issue raised by questions 3 and 4.

As quoted above, section 24 of the Prevention of Bribery Ordinance of Hong Kong states that in proceedings against the person for an offence under the Ordinance “the burden of proving a defence of lawful authority or reasonable excuse shall lie upon the accused”. The appellants argue that because of paragraph 11(d) of the Charter, which guarantees the presumption of innocence for a person charged with an offence in Canada, there could be no burden of proof on a person charged under the equivalent section of the Criminal Code. Counsel for the appellants states his essential argument in his factum as follows:

It is submitted that the fundamental principal [sic] behind equivalency is that a person can only be found inadmissible to Canada if the adjudicator is satisfied that the same fact situation that resulted in a conviction in Hong Kong would, by necessary implication, result in a conviction in Canada.

From this principle he argues that where in the trial of similar offences the burden of proof is on the accused in Hong Kong law, but on the Crown in Canadian law, the offences cannot be equivalent.

I believe it is necessary to return again to the language of subparagraph 19(2)(a.1)(i) of the Immigration Act, which requires that the person in question have been convicted outside Canada “of an offence that, if committed in Canada, would constitute an offence [under Canadian federal law punishable by way of indictment]”. As the Adjudicator said to Mr. Li:

The issue before me Mr. Li, is whether a Canadian equivalent exists for the offence for which you were convicted outside Canada, not whether you would have been convicted in Canada for the offence.[22]

I agree with this analysis of the statutory language. As indicated earlier, in my view the purpose of subparagraph 19(2)(a.1)(i) is to render inadmissible persons who have been convicted of acts abroad which, if committed in Canada, would be denounced by giving rise to liability for a prosecution by way of indictment. What must be compared are the factual and legal criteria for establishing the offence both abroad and in Canada. It is not necessary to compare the adjectival law by which a conviction might or might not be entered in each country. The literal meaning of paragraph 19(2)(a.1) does not require such comparisons. Nor would such comparisons be consistent with the scheme of the Act under which equivalency is to be determined. The Act does not contemplate a retrial of the case applying Canadian rules of evidence. Nor does it contemplate an examination of the validity of the conviction abroad.[23] This is so whether the Canadian standards of procedure or evidence sought to be applied are based on the Charter, statute, or common law. Literally, of course, the Charter cannot apply to public institutions of Hong Kong because they are not covered by section 32 of the Charter. While proceedings in Canada under the Immigration Act must no doubt be conducted in accordance with the Charter, it is not inappropriate for Canadian tribunals to recognize and accept the validity of foreign legal systems without measuring them against the Charter. Thus the majority of the Supreme Court in Canada v. Schmidt[24] refused to deny extradition to the United States in spite of a plea that extradition would result in the accused being tried there twice for the same offence, contrary to the guarantee in paragraph 11(h) of the Charter. As La Forest J. said:

… I see nothing unjust in surrendering to a foreign country a person accused of having committed a crime there for trial in the ordinary way in accordance with the system for the administration of justice prevailing in that country simply because that system is substantially different from ours with different checks and balances. The judicial process in a foreign country must not be subjected to finicky evaluations against the rules governing the legal process in this country. A judicial system is not, for example, fundamentally unjust—indeed it may in its practical workings be as just as ours—because it functions on the basis of an investigatory system without a presumption of innocence or, generally, because its procedural or evidentiary safeguards have none of the rigours of our system.

Two points relevant to our case may be noted. First the Supreme Court here was declining to apply the Charter even though the result of extradition would be to use the Canadian justice system as a means of subjecting a person in Canada (indeed, she was a Canadian citizen) to a potential trial of unknown result in the United States where certain standards imposed here by the Canadian Constitution might not be complied with. That is a more serious matter than the present case where the Canadian legal system is being used to exclude someone from Canada, not for the purpose of turning him over to a foreign government for prosecution, but because by his acts abroad he has demonstrated that he would not be a desirable visitor or resident of Canada. Secondly, the passage quoted clearly recognizes that a foreign legal system lacking the evidentiary safeguards of our system may still in practice be fundamentally just.

More recently the Supreme Court of Canada has held the Charter to be irrelevant abroad even where acts by foreign police officers inconsistent with the Charter have yielded evidence for use in a Canadian court. In R. v. Terry[25] a person wanted in Canada in connection with a murder was arrested in the U.S. by U.S. police on a warrant based on information from Canadian police. He was given the warnings required by U.S. law but was not advised immediately of a right to consult counsel as would have been required by paragraph 10(b) of the Charter had he been arrested in Canada. Nevertheless statements made by him to police, even in the absence of such notification, were held to be admissible at a subsequent trial in Canada. The Court held that the Charter could not govern the conduct of foreign police acting in their own country. The same must surely be true of a foreign court trying a person then subject to its jurisdiction. Also, just as the Supreme Court noted the practical difficulties of applying the Charter to the conduct of a foreign police force,[26] I would observe that an adjudicator or a Canadian court would have similar problems in applying the Charter in the present circumstances. For example, even if it could be said that section 24 of the Prevention of Bribery Ordinance abridges the right described in paragraph 11(d) of the Charter, how could a Canadian adjudicator or a court assess whether such infringement might be justifiable under section 1 of the Charter given the circumstances of law enforcement in the foreign country?

I therefore conclude that in determining the equivalence of offences for the purposes of subparagraph 19(2)(a.1)(i) an adjudicator should not compare the procedural or evidentiary rules of the two jurisdictions, even if the Canadian rules are mandated by the Charter. Thus questions 3 and 4 should be answered in the negative.

Disposition

Questions 1 and 2 must therefore be answered as follows:

A comparison of the “essential elements” of the respective offences requires a comparison of the definitions of those offences including defences particular to those offences or those classes of offences.

Questions 3 and 4 must be answered in the negative. Because the first two questions are so answered and the issue dealt with therein would justify setting aside the deportation order, it should be set aside. The appeal will therefore be allowed and the order entered which the Motions Judge should have entered, namely that the matter be referred back to the Adjudicator for determination on the basis that the appellant Ronald Fook Shiu Li is not a person described in subparagraph 19(2)(a.1)(i) of the Immigration Act.

Robertson J.A.: I agree.

Chevalier D.J.: I agree.

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