August 9, 2018

I am not Inadmissible I have a Foreign Pardon! Not quite . . .

Posted by Mario Bellissimo - Bellissimo Law Group PC

There is no absolute right to have a foreign pardon or expungement recognized in Canada.  This is a surprise to many applicants that often leads them to answer “no” on forms related to foreign criminal convictions.

For Canadian convictions, an expungement is only available for historically unjust acts (laws), i.e.: concerning prior laws criminalizing same sex couples.  The more prevalent option is a Record Suspension (previously a pardon). A Record Suspension can be revoked in Canada. Record Suspensions are governed under the Criminal Records Act (CRA) and the provisions for approval are rigorous.

 Section 36 of the Immigration and Refugee Protection Act (IRPA) governs the criminal inadmissibility provisions.  Inadmissibility captured under subsections (1) and (2) may not be based on a conviction in respect of which a Record Suspension has been ordered and has not been revoked or ceased.

With respect to the operation of paragraphs 36(1) (b) or (c) of the IRPA the Federal Court of Appeal in Saini[1] summarized the law as it relates to the effect given to a foreign discharge or pardon. It is a three-part test:

[24]   To summarize, our jurisprudence requires that three elements must be established before a foreign discharge or pardon may be recognized: (1) the foreign legal system as a whole must be similar to that of Canada; (2) the aim, content and effect of the specific foreign law must be similar to Canadian law; and (3) there must be no valid reason not to recognize the effect of the foreign law.

The Court went on to elaborate on these requirements, and the Canadian law regarding pardons, as follows:

[29] … The systems must be “similar” not “somewhat similar”… It does require, however, that there be a strong resemblance in the structure, history, philosophy and operation of the two systems before its law will be given recognition in this context.

For example, questions to ask as it relates to this branch of the test include, is it a democracy, common law based, are the legal systems similar, corruption levels, etc.?

[32] Second, we must address the content of Canadian laws as compared to the foreign law regarding pardons, which includes the process as well as the factual basis upon which it may be granted…

With respect to this prong, important questions include: does the legislation have the same intent, is the pardon automatic, is there a similar wait time, can it be revoked, is there discretion, etc.?

[35] Third, we must explore the effect of a pardon in Canada as compared to the effect of the foreign pardon…

 [42] Thus, we must assess the third requirement of Burgon, that there was, “no good reason for Canadian immigration law to thwart the goal of [the] British legislation”. This Court expressly stated in that case that we ought to respect the legislation of countries similar to ours, “unless there is some valid basis for deciding otherwise” or there is a “solid rationale” for not doing so. …

 [43] In our view, the seriousness of the offence can be considered under this third requirement. … The gravity of the crime of highjacking is obvious; it is universally condemned and punished severely…

 [44] In our view, the gravity of the offence can and should be considered when deciding whether or not to give effect to a foreign pardon. Even if the Pakistani legal system were similar, and even if the pardon were given under a law similar to Canadian law, the conviction in this case was for an offence so abhorrent to Canadians, and arguably so terrifying to the rest of the civilized world, that our Court is not required to respect a foreign pardon of such an offence.

As such, the third prong of the test in Saini involves an assessment under the rehabilitation provisions.  The recent decision in Havlikova, 2018 FC 691 last month spoke to the depth of the analysis.  In upholding the reasonableness of the decision, the Honourable Mr. Justice Diner wrote at length about the Officer’s analysis:

[32]  The Officer then considered the document of the Bruntal Court dated November 3, 2014, expunging Mr. Istok’s convictions, and noted that the Court considered only (a) the passage of five years, (b) the fact that Mr. Istok was convicted of no further offences during those years, and (c) a police report dated October 13, 2014, indicating that Mr. Istok had no record of criminal activity. The Officer concluded that the Bruntal Court had had no choice but to expunge Mr. Istok’s convictions since the conditions of paragraph 105(1)(c) were met.

 [33]  The Officer contrasted paragraph 105(1)(c) of the Czech Criminal Code to the record suspension provisions under the CRA. The Officer consulted the Decision-Making Policy Manual for members of the Parole Board, noting that members considered multiple factors when considering “good conduct”under paragraph 4.1(1)(a) of the CRA.

 [34]  Further, the Officer observed that a Parole Board member’s analysis under the CRA is not limited to assessing “good conduct”, but also the “measurable benefit” of a record suspension, the applicant’s rehabilitation, and whether the granting of a record suspension would bring the administration of justice into disrepute. Significantly, the Officer concluded that the Parole Board may refuse to grant a record suspension even if the prescribed period has elapsed and the applicant has not been convicted of any further offences, and that a record suspension may be revoked. In the Officer’s view, these all constituted significant distinctions from the Bruntal Court’s expungement considerations in Mr. Istok’s case.

 [35]  Consequently, the Officer found that there were reasonable grounds not to recognize the Czech expungement of Mr. Istok’s offences under Canadian law. However, the Officer, as a matter of further fairness, decided to solicit submissions from Mr. Istok. After reviewing Mr. Istok’s further submissions and materials, the Officer resumed the analysis of Mr. Istok’s application, undertaking a further lengthy analysis of Mr. Istok’s convictions in the Czech Republic, which I need not summarize here as they are not disputed. Suffice it to say that, according to the GCMS notes, Mr. Istok was convicted of at least eight criminal offences in the Czech Republic, five of which were equivalent offences for the purposes of IRPA’s “serious criminality” provisions, and that his prison sentences were, in total, approximately five years in length.

 [36]  In considering whether Mr. Istok’s Czech expungement should be recognized in Canada, the Officer dealt first with the specific evidence tendered by Mr. Istok, and found that his materials had not addressed the concerns previously raised. The Officer confirmed the earlier conclusion that a Czech court must expunge a criminal conviction if the conditions of paragraph 105(1)(c) of the Czech Criminal Code are met, which is a very different process than the highly discretionary one undertaken by the Parole Board under the CRA in deciding whether to grant a record suspension. The Officer further observed that the provisions of the CRA are more severe than those in the Czech Criminal Code, since the CRA provided for only two time categories — five or ten years — with the fact of indictment resulting in a waiting period of ten years. Further, the Officer noted that certain offences in Canada’s regime are ineligible for a record suspension altogether.

 [37]  To underline this distinction, the Officer pointed to the CRA’s Decision-Making Policy Manual, which directs the Parole Board to consider numerous factors when deciding whether or not to grant a record suspension. By contrast, the Bruntal Court document, being short in length with a single page of analysis, did not demonstrate the same “rigour” that one would expect from the Parole Board. Thus, the Officer concluded that the second Saini factor had not been satisfied on the facts of Mr. Istok’s application.

 [38]  With respect to the last Saini factor — namely, whether any valid reason exists not to recognize a foreign pardon — the Officer observed that the severity of Mr. Istok’s criminal history constituted a valid reason not to recognize his expungement. The Officer noted that some of the judgments in respect of his convictions pointed to Mr. Istok’s lack of repentance, and that his lengthy prison stays did not seem to have reduced his risk of re-offending. The Officer further noted that, on the facts of his case, Mr. Istok would not be able to satisfy the Minister of his rehabilitation under  under paragraph 36(3)(c) of IRPA, and that there was reason to doubt that he would have received a record suspension in Canada.

 Therefore, representatives and applicants alike have many factors to consider and cannot assume a foreign pardon means to no criminal inadmissibility.

[1] Canada (M.C.I.) v. Saini [2002] 1 FCR 200.