Gervasoni v. Can. (M.C.I.), (1999) 245 N.R. 197 (FCA)
Judge | Marceau, Noël and Sexton, JJ.A. |
Court | Federal Court of Appeal (Canada) |
Case Date | June 08, 1999 |
Jurisdiction | Canada (Federal) |
Citations | (1999), 245 N.R. 197 (FCA) |
Gervasoni v. Can. (M.C.I.) (1999), 245 N.R. 197 (FCA)
MLB headnote and full text
Temp. Cite: [1999] N.R. TBEd. JL.036
Gerald Gervasoni (appellant/applicant) v. Minister of Citizenship and Immigration (respondent)
(A-440-96)
Indexed As: Gervasoni v. Canada (Minister of Citizenship and Immigration)
Federal Court of Appeal
Marceau, Noël and Sexton, JJ.A.
June 8, 1999.
Summary:
In 1986, Gervasoni, and American citizen, entered Canada and falsely acquired a Canadian's identity. In 1993 he was detected. It was then discovered that Gervasoni had been convicted of second degree murder in 1982 in New Jersey. Gervasoni had been sentenced to seven years' imprisonment. Gervasoni had also been convicted in Canada for breach of recognizance and harassing telephone calls. Charges of sexual assault and unlawful use of a firearm were stayed pending immigration and extradition proceedings. A warrant was issued by the State of New Jersey for serious and persistent violations of his parole conditions. Gervasoni was also wanted in Florida on an outstanding murder charge. At the June 1994 immigration hearing, Gervasoni made a refugee claim. The adjudicator ruled that Gervasoni was a member of an inadmissible class of persons pursuant to his second degree murder conviction (s. 19(1)(c.1)(i) of the Immigration Act). A conditional deportation order was issued and was conditional upon Gervasoni being found not to be a Convention refugee or being ineligible to make such a claim. Under s. 46.01(1)(e)(i) of the Immigration Act, an alien became ineligible to have his Convention refugee claim determined if (1) an adjudicator ruled that the alien was a member of an inadmissible class of persons pursuant to s. 19(1)(c.1)(i) of the Act and (2) the Minister was of the opinion that the alien constituted a danger to the people of Canada. In August of 1994, the Minister formed the opinion that Gervasoni constituted a danger to the public in Canada. Therefore, pursuant to s. 46.01(1)(e)(i) of the Act, Gervasoni became ineligible to have his refugee claim determined. Gervasoni applied for judicial review of the adjudicator's decision.
In June of 1995, the Federal Court of Canada, Trial Division, in a decision reported 97 F.T.R. 307, granted judicial review for purely procedural reasons and remitted the matter for consideration by a different adjudicator. Therefore, the conditional deportation order was not yet in effect. Gervasoni then applied for judicial review to have the Minister's decision declared of no force and effect on the ground, inter alia, that s. 46.01(1)(e)(i) of the Immigration Act was contrary to the Charter.
In April of 1996, the Federal Court of Canada, Trial Division, in a decision reported 110 F.T.R. 297, declined to grant judicial review. However, the court did certify certain questions regarding s. 46.01(1)(e)(i) of the Act for determination by the Federal Court of Appeal.
In June of 1999, the Federal Court of Appeal dismissed the appeal.
Aliens - Topic 1326.2
Admission - Refugees - Refugee Division -Ineligibility for determination by - Gervasoni, an American felon, arrived in Canada and assumed a Canadian's identity - An immigration adjudicator issued a conditional deportation order made conditional on Gervasoni not being eligible to make a Convention refugee claim - The Minister filed an opinion that Gervasoni constituted a danger to the Canadian public - By reason of the adjudicator's finding that Gervasoni was a member of an inadmissible class and the Minister's opinion, Gervasoni lost his right to have his Convention refugee claim determined (s. 46.01(1)(e)(i) of the Immigration Act) - Gervasoni applied to have the Minister's opinion quashed on the ground that s. 46.01(e)(i) contravened s. 7 of the Charter - The trial court dismissed the application -The Federal Court of Appeal dismissed Gervasoni's appeal.
Aliens - Topic 1787
Exclusion and expulsion - Deportation of persons in Canada - Persons ineligible for Convention refugee status - Gervasoni, an American felon, arrived in Canada and assumed a Canadian's identity - An immigration adjudicator issued a conditional deportation order made conditional on Gervasoni not being eligible to make a Convention refugee claim - The Minister filed an opinion that Gervasoni constituted a danger to the Canadian public - By reason of the adjudicator's finding that Gervasoni was a member of an inadmissible class and the Minister's opinion, Gervasoni lost his right to have his Convention refugee claim determined (s. 46.01(1)(e)(i) of the Immigration Act) - The adjudicator's decision was quashed - Gervasoni applied to have the Minister's opinion quashed on the ground, inter alia, that it was conditional upon the adjudicator's finding - The trial court declined to quash the Minister's finding - The Federal Court of Appeal dismissed Gervasoni's appeal.
Aliens - Topic 1796
Exclusion and expulsion - Deportation of persons in Canada - Deportation order - Validity of - [See Aliens - Topic 1787 ].
Extradition - Topic 3
General - Extradition - Defined - Gervasoni, an American felon, arrived in Canada and assumed a Canadian's identity - Gervasoni was wanted by the State of New Jersey for parole violations and by the State of Florida on a murder charge - An immigration adjudicator issued a conditional deportation order made conditional on Gervasoni not being eligible to make a Convention refugee claim - The Minister filed an opinion that Gervasoni constituted a danger to the Canadian public - By reason of the adjudicator's finding and the Minister's opinion, Gervasoni lost his right to have his Convention refugee claim determined (s. 46.01(1)(e)(i) of the Immigration Act) - Gervasoni applied to have the Minister's opinion quashed on the ground that the proceedings constituted disguised extradition - The trial court declined to quash the Minister's opinion - The Federal Court of Appeal dismissed Gervasoni's appeal.
Cases Noticed:
Nguyen v. Canada (Minister of Citizenship and Immigration), [1993] 1 F.C. 696; 151 N.R. 69 (F.C.A.), folld. [para. 1, footnote 1].
Statutes Noticed:
Immigration Act, R.S.C. 1985, c. I-2, sect. 46.01(1)(e)(ii) [para. 1].
Counsel:
Gary Botting, for the appellant;
Sandra Weafer, for the respondent.
Solicitors of Record:
Gary Botting, Victoria, B.C., for the appellant;
Morris Rosenberg, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.
This appeal was heard on June 8, 1999, in Vancouver, B.C., by Marceau, Noël and Sexton, JJ.A., of the Federal Court of Appeal. The decision of the court was given orally by Marceau, J.A., on the same date.
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