A-456-86
Victor Dayan (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
INDEXED AS: DAYAN V. CANADA (MINISTER OF EMPLOYMENT
AND IMMIGRATION)
Court of Appeal, Urie, Stone and MacGuigan
JJ.—Toronto, February 13; Ottawa, March 5,
1987.
Immigration — Deportation — Applicant member of inad
missible class — Convicted of robbery in Israel — Offence, if
committed in Canada, would result in conviction under s. 302
Criminal Code — Equivalency between foreign and Canadian
criminal laws — Tests — Essential ingredients of robbery in
Canada proven in foreign proceedings — Israeli statute or
absence thereof should have been proven — Concept of malum
in se not to be resorted to where offence committed in common
law country — Application for judicial review dismissed —
Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 19(1)(c),
27(2)(a) — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10,
s. 28.
Criminal justice — Evidence — Applicant convicted of
robbery in Israel — Refused entry into Canada as member of
inadmissible class — Equivalency between foreign and
Canadian criminal laws — Comparison between statutory
provisions impossible as foreign law not proven — Test:
whether essential ingredients of robbery in Canada proven in
foreign proceedings — 'Stealing" essential ingredient of rob
bery at common law and in s. 302 Criminal Code — Evidence
taking of money by applicant 'fraudulent and without colour
of right" as required by s. 283 Code — Concept of malum in
se to prove equivalency to be relied upon only in cases of
non-common law countries — Criminal Code, R.S.C. 1970, c.
C-34, ss. 2, 283(1)(a), 302, 303 (as am. by S.C. 1972, c. 13, s.
70).
This is a section 28 application against a deportation order.
On the basis of the evidence before him, the Adjudicator found
that the applicant had been convicted of robbery in Israel, an
offence which, if committed in Canada, would have resulted in
a conviction under the Criminal Code and a maximum term of
imprisonment of ten years or more. The applicant was conse
quently refused entry into Canada on the ground that he was a
member of an inadmissible class described in paragraph
19(1)(c) of the Immigration Act, 1976. A deportation order
was made. The applicant argues that proof of the elements of
the offence committed in the foreign jurisdiction is necessary
before a finding can be made that the offence for which the
applicant was convicted, if committed in Canada, would or
might result in a conviction in Canada as stated in paragraph
19(1)(c) of the Act.
Held, the application should be dismissed.
The applicant's submission as to the requirements necessary
to establish equivalency between foreign and Canadian criminal
laws could not be accepted. In Hill v. Canada (Minister of
Employment and Immigration), this Court indicated three
ways of establishing equivalency: (1) by comparing the precise
wording of each statute; (2) by examining the evidence adduced
before the adjudicator to ascertain whether it was sufficient to
establish that the essential ingredients of the offence in Canada
had been proven in the foreign proceedings; (3) by a combina
tion of one and two. In the present case, since there was no
proof of any statutory provision of the law of Israel, resort was
had to the second test.
Israel is a common law jurisdiction, as is Canada. The
essence of the offence of robbery at common law is "stealing"
which is also an essential ingredient of the offence of robbery
described in section 302 of the Criminal Code of Canada.
Under section 2 of the Code, "steal" means to commit theft. By
virtue of section 283, the taking must be fraudulent and
without colour of right. The evidence in the record clearly
established that the applicant was a party to a theft of money
to which none of the participants had any colour of right and
the stealing of which was unlawful as the list of criminal
convictions disclosed. Having found that the applicant had been
convicted of robbery in Israel and that a weapon had been used
in the commission of the offence, the Adjudicator was entitled
to conclude that the applicant had been convicted of an offence
punishable under section 302 of the Code and for which a
sentence of more than ten years might have been imposed
under section 303 of the Code.
Proof of the statutory law of Israel should have been made in
this case or, in the alternative, the absence of statutory provi
sions should have been established. In rendering his decision,
the Adjudicator applied the concept of malum in se and
concluded that since the crime of robbery in both countries is a
malum in se, there was a presumption that the law of Israel
coincided with that of Canada. Reliance on the concept of
malum in se to prove equivalency with the provisions of the
Criminal Code of Canada is a device which should be resorted
to by immigration authorities only when, for very good reason,
established to the adjudicator's satisfaction, proof of foreign
law has been difficult to make and then only when the foreign
law is that of a non-common law country.
CASES JUDICIALLY CONSIDERED
APPLIED:
Hill v. Canada (Minister of Employment and Immigra
tion), Federal Court, Appeal Division, A-514-86, judg
ment dated January 29, 1987, not yet reported.
REFERRED TO:
Button v. Minister of Manpower and Immigration,
[1975] F.C. 277 (C.A.); Clarke v. Minister of Employ
ment and Immigration, Federal Court, Appeal Division,
A-588-84, judgment dated October 31, 1984, not
reported.
COUNSEL:
J. S. Guberman for applicant.
A. Burey for respondent.
SOLICITORS:
Green & Spiegel, Toronto, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
URIE J.: The applicant, a citizen of Israel,
entered Canada in May 1982 as a visitor. On
October 2, 1985 an inquiry was commenced to
determine, inter alia, if the applicant was a person
described in paragraph 27(2)(a) of the Immigra
tion Act, 1976 ("the Act") [S.C. 1976-77, c. 52] in
that if he were applying for entry to Canada he
"would not or might not be granted entry by
reason of his being a member of an inadmissible
class" described in paragraph 19(1)(c) of the Act
which reads as follows:
19. (1) No person shall be granted admission if he is a
member of any of the following classes:
(c) persons who have been convicted of an offence that, if
committed in Canada, constitutes or, if committed outside
Canada, would constitute an offence that may be punishable
under any Act of Parliament and for which a maximum term
of imprisonment of ten years or more may be imposed,
except persons who have satisfied the Governor in Council
that they have rehabilitated themselves and that at least five
years have elapsed since the termination of the sentence
imposed for the offence;
On July 10, 1986 he was found to be such a
person and was ordered deported. It is from that
order that this section 28 application is brought.
The sole issue in this application is whether or
not the applicant had been convicted of an offence
in Israel which, if it had been committed in
Canada, would have constituted an offence for
which punishment under an Act of the Parliament
of Canada (the Criminal Code [R.S.C. 1970, c.
C-34] ), of a maximum term of imprisonment of
ten years or more, might have been imposed.
To make his determination on that issue the
Adjudicator had received in evidence the follow
ing:
(I) The testimony of the Applicant to the effect that he had
been convicted of an offence in Tel Aviv, Israel in 1977 for
which he had, apparently after an appeal, been sentenced to a
term of imprisonment (the length of which is not clear) and had
served a term of at least three years. While he testified that he
thought that the crime for which he had been convicted was of
theft, there is evidence on the record that the conviction was for
robbery or armed robbery.
(2) A transcript of a Show Cause Hearing held on February
17, 1984 before His Honour Judge C.H. Paris in Provincial
Court in Toronto in which the Applicant confirmed what the
Crown Attorney told the Judge at the beginning of the hearing,
namely, that he had been convicted of robbery in Israel.
(3) A copy of an Identification Form for Victor Dayan whose
father was shown to be named Dani (as was the Applicant's
father), whose date of birth was that of the Applicant and who
resided at a street address in Tel Aviv which the Applicant
confirmed as his although he testified that he had not resided at
the precise street number for a number of years his residence
being at a different number on the same street. While the form
contained finger prints, no evidence was adduced linking the
prints to the Applicant.
(4) A list of criminal convictions dated May 4, 1984, of Victor
Dayan compiled from police records Criminal Intelligence Divi
sion, Israel Police Headquarters, Jerusalem, Interpol, showing,
inter alla, convictions for armed robbery and robbery on July
24, 1977.
(5) An extract from a transcript of the minutes of an Inquiry
held in Toronto on August 1, 1984 in which the Applicant
admitted that he had been convicted of an offence in 1977 for
which he had served time in prison and that a weapon had been
involved in the commission of the offence which had not
belonged to him but to one of the two other persons who had
been charged and convicted with him.
(6) A photocopy of an Israel Police Certificate, verified as
authentic by the Vice Consul of the Consulate General of
Israel, stationed in Toronto, wherein it was certified that no
criminal record is held by the Israel Police in respect of "Victor
Dayav". A picture was attached to the certificate and was
acknowledged to be that of the Applicant.
On the basis of the foregoing evidence, the
Adjudicator made the following findings of fact.
(1) Victor Dayan, the Applicant, was convicted
of an offence in Israel in 1977.
(2) The Israel Police Certificate relates to the
Applicant and indicates that no record of crimi
nal convictions of him is held by the Israeli
Police but establishes nothing else.
He further found that:
This document proves only that the Israeli police hold no
criminal record for Victor Dayan and establishes nothing else.
The Israeli police may not hold criminal records. The Israeli
police may hold criminal records only for a certain period of
time. Criminal records may be held by other agencies. Perhaps
no record of criminality is held by Israeli police after a certain
period of time. Perhaps there is an automatic granting of a
pardon after a certain period of time. I have no way of knowing
whether any or all of these situations are true. What I do know
is that the Israeli police have no criminal record for Victor
Dayan. That being the case it still would not automatically take
Mr. Dayan out of the confines of the inadmissible classes of
persons described in 19(1)(c) of the Immigration Act.
19(1)(c) refers to persons who have been convicted of offences.
In my opinion it does not matter whether or not there is a
record of these convictions, nor does it matter whether or not a
pardon has been granted for any convictions that may have
been committed. Mr. Dayan is still a person who has been
convicted of an offence unless, and this is not the case here, an
appeal against the conviction was successful.
(3) Although no witnesses had been called to
verify the authority of the Interpol Identifica
tion Form and List of Convictions, he accepted
them as emanating from a recognized police
agency, as clear indications of the convictions
referred to therein, including robbery and armed
robbery.
(4) With the transcript of the Show Cause
Hearing, the extract from the minutes of the
earlier inquiry and the admissions of having
been convicted of robbery in Israel in 1977 he
held that:
I agree with your counsel that I cannot rely on the fact
situation in order to determine what you may have been
convicted of. However, in a review of the fact situation the theft
of money, the use of weapons is not inconsistent with the
conviction for robbery which appears in Exhibit C-8 and
appears in Exhibit P-3. Given this evidence I find it more likely
than not that you were convicted of robbery in Israel in 1977.
No evidence of any kind was adduced of crimi
nal statutes of Israel so that a comparison of any
provision of Israel's criminal law statutes, if any,
with the appropriate provisions of the Criminal
Code of Canada, (the "Code") is not possible. It is
this fact which is the foundation for counsel for the
applicant's attack on the impugned deportation
order. His contention is that evidence of the ele
ments of an offence in a foreign jurisdiction in
which the offence occurred is necessary before a
finding can be made under paragraph 27(2)(a) of
the Act, that the offence for which the applicant
was convicted, if committed in Canada, would or
might result in a conviction in Canada.
I do not agree with this unequivocal view of
what is required to establish what has come to be
known as "equivalency" between foreign and
Canadian criminal laws. I had occasion recently,
in concurring reasons in Hill v. Canada (Minister
of Employment and Immigration) (not yet report
ed, January 29, 1987, Court file no. A-514-86), to
comment in the following passage therefrom, on
how equivalency may be established [at pages
2-3]:
This Court in the Brannson case [[1981] 2 F.C. 141] did not
limit the determination of so-called "equivalency" of the para
graph of the Code, there in issue, to the essential ingredients of
any offence specifically spelled out in the statute being com
pared therewith. Nor is it necessary in 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 respec
tive 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 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.
We cannot compare the provisions of our
Criminal Code with those in an Israeli statute, if
any. The question then is, do the findings of fact
hereinbefore set out, establish that the essential
ingredients of the offence in Canada must have
been proven in order to have secured the convic
tion of the applicant in a court in Israel?
To answer that question, the Adjudicator, rely
ing on dicta in two judgments of this Court,' first
held that murder and theft are examples of crimes
that are malum in se. Robbery, he found, is basi
cally theft with violence so that, in his view, it falls
within the malum in se exception. Both countries,
on the evidence as he saw it, levy punishment for
the crime of robbery so that the presumption
results that the law of the foreign country, proof of
which has not been adduced, coincides with that of
Canada because the crime of robbery in each is
malum in se.
The particular passage from the Button case,
infra, upon which he relied was the following
passage from the reasons for judgment of Jackett
C.J. at page 284:
... and, in our view, there can be no presumption that the law
of a foreign country coincides with a Canadian statute creating
a statutory offence, except where the offence falls within one of
the traditional offences commonly referred to as malum in se. 4
° See the Martin case supra per Devlin J. at page 92:
"Crimes conceived by the common law, however, which are
mostly offences against the moral law, such crimes as murder
and theft, are not thought of as having territorial limits.
They are universal offences. Murder is a crime whether done
in France or in England; but if done in France the English
courts would not under the common law assume jurisdiction
to punish it because that would be an infringement of French
sovereignty .... Broadly speaking, therefore, distinction can
be drawn between offences which are offences against the
moral law and to be regarded as wrong wherever they are
committed, and offences which are merely breaches of regu
lations that are made for the better order or government of
... a particular country such as England.
Now with regard to the offence charged here [which was
that of being in unlawful possession of drugs contrary to the
U.K. Dangerous Drugs Act, 1951]—whatever may be the
position in regard to other statutory offences—it is perfectly
clear that this offence is an offence only if it is done in
England."
' Button v. Minister of Manpower and Immigration, [1975]
F.C. 277 (C.A.) and Clarke v. Minister of Employment and
Immigration, October 31, 1984, unreported, Court file no.
A-588-84.
The Adjudicator also found support for his find
ing in this passage from the judgment of Hugessen
J. in the Clarke case, supra [at page 1]:
There was evidence before the Adjudicator that the applicant
had been convicted in Jamaica of an offence described as
"Assault with Intent to Rob" but there was no evidence of the
facts or circumstances of the offence. Both assault and robbery
are common law crimes which are malum in se and whose
meaning and content are well known. The Adjudicator found
that the conviction was for the equivalent of the offence
described in paragraph 302(c) of the Criminal Code. 2
In this case, there was evidence to which I
earlier made reference, which the Adjudicator was
entitled to accept, that the applicant had been
convicted in Israel of either or both of the offences
of armed robbery and of robbery. Quite aside from
any prohibitions in statutes against the commission
of such offences, at least in common law jurisdic-
tions, they are crimes. We were informed that
Israel is a country the system of justice of which is
based on the common law just as Canada's is. The
essence of the offence of robbery at common law
was stealing whether or not such stealing was
accompanied by violence, threats of violence or the
use of a weapon in its commission. It is a crime
because it is an offence which is contrary to socie-
ty's norms as is reflected in the common law. A
statute may codify it simply as such or it may, in
the codification, include other ingredients requir
ing proof before a conviction can be obtained.
Theft as described in paragraph 283(1)(a) of the
Code, is an example of a codification which
includes the ingredients requiring proof of taking
"fraudulently and without colour of right". In the
Hill case, supra, the record disclosed that the
offence for which the applicant was convicted was
under the Texas Penal Code but no evidence was
2 302. Every one commits robbery who
(a) steals, and for the purpose of extorting whatever is stolen
or to prevent or overcome resistance to the stealing, uses
violence or threats of violence to a person or property;
(b) steals from any person and, at the time he steals or
immediately before or immediately thereafter, wounds,
beats, strikes or uses any personal violence to that person;
(c) assaults any person with intent to steal from him; or
(d) steals from any person while armed with an offensive
weapon or imitation thereof.
adduced as to what was meant by "theft" in the
Texas statute. The distinction was described by
Hugessen J. at page 4 of his reasons in the follow
ing way:
The defect, in my opinion, lies in the total absence of
evidence as to what is meant in the Texas statute by "theft". It
is clear from the wording of the indictment, together with
section 30.02 of the Texas Penal Code quoted above, that an
intention to commit theft was an essential ingredient of the
conviction for burglary. Theft, however, is an offence whose
essential elements, whether under the law of Texas or other
wise, are not self-evident. In popular parlance, theft is used
loosely to describe the common law offences of larceny, conver
sion and embezzlement. In Canada, as in some other countries,
theft is also a specific statutory offence whose content is closely
defined by law. Paragraph 283(1)(a) of the Criminal Code sets
out the essential elements of the most common form of theft:
In contrast, there is no evidence on the record
here of any provision of any criminal statutory
enactment in Israel. We do know, however, that
the crime of robbery at common law has an essen
tial ingredient "stealing" which the specific statute
in Canada, section 302 of the Code, also has as its
essential ingredient. By definition (section 2 of the
Code) "steal" means to commit theft. Therefore,
by virtue of section 283, the taking must be
fraudulent and without colour of right. The tran
scripts of evidence in the record in this case estab
lish beyond doubt, in my opinion, that the appli
cant was a party to a theft of money to which none
of the participants had any colour of right and the
stealing of which was unlawful as the list of crimi
nal convictions discloses. In all of the circum
stances, particularly since a weapon was used, it is
hard to conceive that a plea of colour of right
could succeed. Having accepted all of the evidence
including the fact that the applicant had been
convicted of robbery in Israel and that a weapon
had been used in the commission of the offence, it
follows that the Adjudicator was entitled to con
clude that he had been convicted of an offence
punishable under section 302 of the Code. If he
had been so convicted, by virtue of section 303 3 of
the Code [as am. by S.C. 1972, c. 13, s. 70], a
sentence of more than ten years might have been
imposed. Therefore, the Adjudicator had evidence
before him entitling him to find that the applicant
was a member of the inadmissible class described
in paragraph 19(1)(c) of the Act.
Because of that conclusion the other three
attacks made on the decision a quo by counsel for
the applicant must fail. Accordingly, I would dis
miss the section 28 application.
Before leaving this matter I should say that I
agree with the Adjudicator and counsel for the
applicant, that proof of statutory provisions of the
law of Israel ought to have been made in this case
if such statutory provisions exist. Alternatively, the
absence of such provisions in the statute law of
that country, if that is the fact, ought to have been
established. Reliance on the concept of offences as
malum in se to prove equivalency with provisions
of our Criminal Code, is a device which should be
resorted to by immigration authorities only when
for very good reason, established to the Adjudica
tor's satisfaction, proof of foreign law has been
difficult to make and then only when the foreign
law is that of a non-common law country. It is a
concept tô which resort need not be had in the case
of common law countries. If it were not for the
overwhelming evidence of the applicant's convic
tion in this case for an offence known to our law, I
would not have hesitated to grant the application.
STONE J.: I agree.
MACGUIGAN J.: I agree.
3 303. Every one who commits robbery is guilty of an indict
able offence and is liable to imprisonment for life.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.